This is Bloomberg Law with June Brusso from Bloomberg Radio.
Next year at the Supreme Court promises to be a tumultuous one with cases on abortion, the Second Amendment, and the many legal issues involving former President Donald Trump. Joining me for the second half of our look at what's happening at the Court next year is Bloomberg Supreme Court
reporter Greg Store. Greg. There's going to be a sort of showdown at the Court over agency power with two cases involving the Chevron Doctrine, which is a thirty nine year old precedent, and this will have major implications for all kinds of government regulations.
Yeah, it is one of those cases that is cited all the time in federal administrative law cases, meaning like challenges to agency regulations. And basically what the Chevron Doctrine says is, if there's a statute that is ambiguous, if the agency interprets it that ambiguous statute in a certain way, and if that's a reasonable interpretation, we the courts are
going to defer to the agency. And so it gives agencies regulators a certain amount of power to define the scope of their mission and their authority and the Supreme Court. This very conservative Supreme Court has been expressly a good deal skepticism about the Chevron doctrine and in fact has been kind of narrowing it over the years, and now they have a case where they might just overturn it.
It's a case that involves a fee that is charged to herring fishermen or could be charged to herring fishermen to pay for federal monitors aboard their vessels, and the argument is that federal regulators didn't have the authority to
impose that fee. In they don't necessarily have to overturn the Chevron doctrine in the case, but if they do, it could really represent a major shift in terms of what agencies are able to do, how authority they have to enact new regulations, and it would really be kind of a revolution in this arcane the very very important world of federal administrative law.
And several conservative justices have written about their opposition to Chevron, though the Court has never actually revisited it.
Right, so justices like Clarence Thomas Neil Gorsich, you expect them to be very very skeptical when the Court considers it.
There's another aspect of this issue. In the case a couple terms ago involving the EPA and regulation of climate change, the Supreme Court said that not only are we not going to give Chevron deference to the EPA when it decides it has brought authority to impose regulations on power plants, but we're actually going to start with the assumption that Congress wouldn't have delegated this authority to the EPA unless it was explicitly clear. Because this is a so called
major question. It is so important that we just aren't going to be lead that Congress meant to give the EPA authority over it unless it's crystal clear in the statute. So this notion of deferring to agencies is already under pressure from a lot of different angles.
And you've written about how it's sort of like the dream of conservatives and critics of big government. How critics of big government have organized to fight the Chevron doctrine in ways similar to how anti abortion groups organized to fight against Roe v. Wade.
Yeah, there was a massive pile of briefs on the side of the fishermen in this case, all manner of conservative groups weighing and in business groups to some degree weighing in support. Kind of the interesting difference between Roe v. Wade and Chevron is that early on when Chevron, when the ruling came down in nineteen eighty four, it was
something that conservatives tended to like. That was a time when Ronald Reagan was president Republican and conservatives tended to like what agencies were doing, and so they were happy to have courts deferring two agencies. Over time, particularly as Democrats came into the White House, conservatives came to think it was a bad idea. They wanted judges to have more authority to decide how broad federal statutes are.
Although presidents of both parties have leaned on the Chevron doctrine. So there are two cases. One that the Court decided to take in May, the Loper Bright case, and then a second case the Court decided to take in October, Relentless, Perhaps since appropriately entitled Relentless versus Department of Commerce. Explain why the justices may have taken that second case.
Yeah, So, first of one, I should say that they're otherwise exactly the same, the exact same issue. It's both about this see for monitors on Herring votes. The difference is that in the first case, the lober Bright case, Justice Katachi bron Jackson is recused from it. She had been involved with it when she was a Federal Appeals Court judge on the DC Circuit, And so by adding the second case, the Court guarantees they will have nine justices to decide it. Now, I'm given the conservative leanings
of this court, they may not need nine justices. They may already have the five they need to overturn the Chevran decision. But at least Justice Jackson will have a chance to weigh in in the case.
And the Supreme Court is going to delve into several cases involving social media. They agreed to review Florida and Texas laws that would sharply restrict the ability of the largest social media platforms to police political misinformation. The laws are a little bit different, but similar.
Yeah, So both of them basically restrict the editorial discretion of social media companies. Restrict the ability of social media companies to decide on their own whether certain posts should be taken down or certain users kicked off the platform. The argument that the states are making is that, oh, these social media companies discriminate against conservative viewpoints and so we need to pose some regulations. And the two laws
are different in terms of their exact provisions. The Texas law, for example, includes a broader provision that essentially says that social media companies have to be viewpoint neutral. They have to treat conservative viewpoints and liberal viewpoints alike. The Florida law has a provision in it that requires social media companies, whenever they do something take down a post, to give
a detailed explanation of why they did that. So social media companies their trade group are lodging a first Amendment challenge to both laws, and the devil may be in the detailed to some degree. For example, the Florida law, a federal appeals court upheld part of it and blocked part of it, So there may be some parsing that the Supreme Court decides to do in terms of whether these laws are constitutional, and that.
Appeals court, the Eleventh Circuit, is one of the most conservative circuits in the country, but not as conservative as the Fifth Circuit, which upheld the Texas law. Former President Donald Trump filed a brief in support of the Florida law. How much could this decision shape the rules online in the run up to the twenty twenty four election.
That's a good question, and I think my answer is perhaps not as much as I would have thought a year ago, in that we've seen social media companies X for example, the platform formally known as Twitter doing less to combat misinformation disinformation on their platform, same thing with
other social media platforms. So to the extent that these laws were trying to crack down on social media companies when they were actively trying to remove inaccuracies, you know, there's less of that going on anyway, and so the practical effect of it might be a little less than we thought it was going to be previously.
Greg looking at what's coming up, do you think that this term could be as controversial as two terms ago.
Well, that's a pretty high bar to set the term two years ago. That, of course, is the term where, among other things, the Court overturned Roe v. Wade, sot up a tough new test for gun regulations. This term right now, we have a lot of very important cases, but not historic cases in quite the same way as
we had that term. Now, the big caveat to all that is Donald Trump is out there, and there are all manner of Donald Trump related cases that are percolating, including the question of whether he is immune from criminal charges over things he did as president to try to overturn the election results leading up to the January sixth riot at the Capitol. There's also the question of whether the Constitution's fourteenth amend and the insurrection clause in there
precludes him from becoming president again. Those are enormously big issues with both legal and political significance, and so those cases may end up being the things that power above everything else that the Supreme Court has this term.
So I think you'll be quite busy next year. Greg, Thanks so much for running it all down for us. That's Bloomberg Supreme Court reporter Greg Store. Coming up next on the Bloomberg Law Show, Top US officials are going to be traveling to Mexico in an attempt to deal with the record numbers of people crossing the southern border. I'm June Gross. When you're listening to Bloomberg, the US
is facing an unprecedented surge of migrants at the southern border. Yesterday, US Customs and Border Protection encountered more than twelve thousand undocumented migrants crossing the border for the third straight day, a new record. National Security Council official John Kirby said President Joe Biden and the President of Mexico agreed during a call today that more enforcement at the border between the two countries is needed, as record numbers of people trying to cross have disrupted trade.
One of the things that the President Lopez Overdoor and the President talked about today was trying to work on getting at the root causes of migration. We're seeing record levels of people, more people are on the move in this hemisphere than that has been the case since World War Two.
Top US officials, including Secretary of State Anthony Blincoln and Homeland Security Secretary Alejandro Majorcis, will travel to Mexico in the coming days to meet with President Lopez Oberdoor on the issue. My guest is immigration law expertly On Fresco, a partner at Holland and Knight Leon. There was a record number of so called migrant encounters on the southern border this year, with two point four million migrants crossing
the border. Is a Biden administration doing everything it has the legal power to do.
So here's the main point to take from this, which is there is undoubtedly one thing that the Biden administration is not doing that. The Trump administration was doing that. It theoretically has the legal ability to do, which is to remain in Mexico. Program. Now, that would require cooperation from Mexico, which Mexico currently states that it wouldn't provide. Now, if you remember President Trump obtaining that cooperation by saying he would create massive paris on cars entering from Mexico,
which scared the Mexican government into cooperating. It's unclear if President Biden would use similar toxics, but the point is there is that one arsenal lest where theoretically President Biden could create some sort of threats such as sarasun cars, which would create an incentive for Mexico to allow remain in Mexico and then have all of those individuals placed into Mexico waiting for their asylum case to be heard.
And so you'd have to obviously spend lots of money on resources and creating facilities in Mexico for people to wait in, and perhaps in creating locations where people could obtain legal assistance to do their asylum claim and things of this nature. But nevertheless, it's possible, but they're choosing
not to go down that route. What if it appears they're trying to invest in at the moment, are these bipartisan negotiations in the Senate to try to come up with some statutory authority to do different things by statutes than what is currently permitted as opposed to using remaining in Mexico.
What are the sticking points in the Senate between the Democrats and the Republicans.
The problem is this is a basically conceptual disagreement about what the problem is visa visa border. The Democrats are focused on solving the narrow issue of what is the standard that people have to articulate in order to be permitted entry into the United States, and they want to
raise that standard. And what they want to do, which is sort of a big concession, is to say if a certain amount of people are still coming after we raise that standard, then we will actually trigger some sort of Title forty two, like automatic expulsion until the numbers start coming down. And so even if you had a legitimate claim, you'd still have to make it in Mexico. That's pretty much where the Democrats want to go, and
they don't want to do anything more. The Republicans view this as sort of a larger problem, which is not just that, but also all of the parole groups that President Biden is allowing to enter the country currently from Cuba, Venezuela, Nicaragua, Haiti. They want to eliminate all of that and say and Ukraine also and say that pretty much that whole flow
has to be shut down. And the problem is the Biden administration thinks that those legal parole programs are actually lowering the demand for illegal immigration, whereas the Republicans think, no, the illegal crossers are coming and it's only the people who would have come legally who are applying for the legal parole program but that this isn't really reducing any flow of illegal immigration. And so for the Republicans, unless you end these parole programs, they are claiming they won't
reach any deal. And for the Democrats this is sort of viewed as a non starter because the Democrats are saying, we're already making enough concessions on the asylum claims themselves without achieving anything to help any immigrants, that we're not going to go this final route and limit the president's ability to parole people into the country.
I mean the buying administration by itself could raise the what's required in the credible fear interview.
Right, Well, they've already done that visa the asylum. That's certainly true. And like I said, what that's done is it's sprinkled into withholding of removal, meaning now so everybody has to use because of this asylum ban, the withholding of removal. Though, remember the asylum ban is also being litigated and the Ninth Circuit has shut that down for a little while. The asylum ban, so it comes on
and it comes off. But even if the withholding of removal standard is implemented, we're still talking about a standard that permits something on average of fifty to sixty percent of people to enter, as opposed to eighty percent, which
is the lower credible fear standard. And I think the kinds of changes people are talking about implementing would bring that number far lower and require far more evidence on the upfront initial threshold, such that maybe you'd have a twenty five to thirty percent chance of being able to enter into the United States because you'd have to articulate not just something that could eventually be a logical case for asylum flash withholding of removal, but you'd actually have
to have some evidence on your person at the moment when you arrive, or some other riight theory of a well explained theory of your case such that that would be the only way that would permit you to enter the United States.
Because I was reading that three million people are awaiting their immigration court hearings, so they're free to stay and after six months legally work until they come before it judge. And that's one of the reasons drawing so many people to cross, because they know.
That that's absolutely right. The idea is a backlog. Begets the backlog because the longer the backlog is, the more you're going to have people wanting to come in to exploit the backlog. Because if there's only a two month backlog and you will have to spend twenty thousand dollars to come into the US I legally and you'll get deported in two months, that's not really encouraging people to come.
But if there's a five to six year backlog, which is what we have now, people then can say, well, even if I get ordered to poor five six years from now, who cares, I was still able to come and work for five or six years. I'll take that risk and hopefully I won't even get supported in those
sext fights to six years. So that's one of the problems is if the backlog begets the backlog, and at some point people are gonna have to decide what to do, because yes, it does seem very strange that you would forgive those three to four million people and what could end up being six million by the end of this year, but it also seems very unlikely you're going to get
through those cases. And so at the end of the day, you'd have to decide where are you gonna sort of start from scratch so that we can make these cases cases that can get done in a month or two and not cases that take three, four or five six years to do. And so that's the problem is there's gonna have to be a realistic come to grips moment with this system where people say, look, we can't have
backlogs that beget more backlog. We're gonna have to cut some people off and say those people are not our priority, and we're going to have to prioritize the people coming in right this second and really focus on getting them out as soon as possible.
And lawmakers went home over the holidays without the Senate negotiations over immigration resolved.
Everybody's very pessimistic that there will be a deal made because there's different factors. There's the factor of that the Democrats aren't getting anything pro immigration in exchange for these immigration enforcement provisions. So there's some segment of the Democratic Party that says, well, what do I care about Ukraine funding? That doesn't do anything for me? Why am I trading Ukraine funding for immigration? It needs to be immigration for immigration.
So that's number one. Number two is the Republican fear that whatever the agreement they will come to will immediately be rejected by President Biden, such that then there's no point because if he says this is a terrible agreement and it doesn't do anything, then everybody will fall off and all that work will be well. And so that seems to be the double problem. Everybody's thought of company.
Well, we'll see if anything changes after the holiday. Thanks so much, Leon, as always, that's Leon Fresco of Holland and Knight. Coming up next the NC Double A on trial. You're listening to Bloomberg Opening statements kicked off Monday in a case that may shape the future of college sports.
A National Labor Relations Board administrative law judge is considering whether the NCAA, the PAC twelve Conference, and the University of Southern California violated federal law by misclassifying student football and basketball players as non employees. N LRB attorneys say that student athletes should legally be considered employees. The defendants have denied all wrongdoing, and an attorney for the university said that student athletes are not in service to the university.
To the contrary, the students are beneficial of USC services. The case is one part of a patchwork of litigation against the NCAA, which has come under heavy fire for preventing players from sharing in the billions that universities make on college athletics every year. Joining me is Martiney Dell, co chair of Gulsen and Stores Sports law practice in this trial. Is the NCAA's business model at stake?
You bet so. The whole purpose of the trial is to challenge whether or not student athletes a term that the National Liberations Board does not like our employees and therefore not students for classification purposes under the National Labor Relations Act. It ultimately held to be employees. This changes the whole model of amateurism in very significant ways.
So why is it the NLRB that's bringing the lawsuit instead of, you know, the individual players.
So there's a group of players. So it's actually both a group of players complained under the title of a concerned students and the National Labor Relations Board Region number thirty one, which is Southern California, looked into it and issued what they call an unfair labor practice. So this trial is over the unfair labor practice issued by the local district of the National Labor Relations Board against USC, the PAC twelve Conference, and the NCAA.
It's very hard to keep track of what's going on with college athletes as they're called at this point. I mean, it seems like there's litigation going on here and there. Is that true or is it just seen that way?
What it seems like is the reality. So let me see if I can unpack that just the little bit. There are antitrust suits flying around principally now in the Northern District of California as to whether student athletes ought to be paid to play. This is an outgrowth of
what we've previously talked about. The Olston case. Also in the Northern District of California, there has been a class certification of students for monetizing their image and likeness rights during the period they were excluded from monetizing their name, image and likeness rights. So those are two separate movements
going on. Third, we have the National Labor Relations Board proceeding here, and fourth we have in the Third Circuit Court of Appeals an appeal from the denial of a motion to dismiss by the District Court judge in which the District Court judge essentially held that the Fairly Standards Act ought to apply to student athletes.
The NCAA recently changed the rules governing whether students can profit from their names, images, and likenesses. Is that at all an issue in this case?
So only marginally, And what I mean by that is that the National Labor Relations Board uses the concept that students can now monetize their name, image and likeness rights as further evidence of the fact that they are more like employees who are seeking to get part of that revenue pot that the universities hold than they are as students. But it's not directly impacted.
Let's talk about opening statements which took place on Monday, tell us what the NLRB's position is.
So I think there needs to be a little bit of background here as to what's going on. And it's not a long history, but it goes back about nine years here. So nine years ago, in twenty fourteen, the National Labor Relations Board brought a case against Northwestern seeking to declare student athletes as employees within the meaning of the National Labor Relations Act. At the level we're talking about now, which is the administrative ward judge level, the
NLRB was successful. According to the administrative law judge, the NLRB successfully had shown that student athletes were working for the university. This is the Northwestern football players upwards of sixty hours per week during the season and upwards of forty hours per week during off season periods doing football that gave them less and less time for things like studies, attending classes, and the other types of activities that college
students might partake in. Then, at the National Labor Relations Board level, that is the top level, the National Labor Relations Board vacated the award because it found that this might destabilize labor relations. Reason for that is Northwestern is a private university. It was at that point the only private university in the Big Ten Conference, and the other schools in the Big Ten Conference being public universities, were not subject to the National Labor Relations Act, so therefore
a differential impact. That issue became dormant from twenty fifteen until twenty twenty one. In twenty twenty one, we had a cacophony of events. One was, as you noted just earlier, you had name, image, and likeness monetization a number of states. I think it was upwards of thirty past laws that became effective in twenty twenty one, allowing student athletes to monetize their name, image, and likeness rights without being penalized
by the NCAA. The NCAA dropped its prohibition against athletes monetizing their name, image and likeness rights in late June of twenty twenty one. In June of twenty twenty one, the Supreme Court decided the Alston case, which found, among other things, that the NCAAA could violate the antitrust laws, had violated the anti trust laws and enjoyed certain provisions
of its compensation rules as being an antitrust violation. In addition, President Biden appointed a new General Council for the National Labor Relations Board, Jennifer Abruso and Miss Bruso issued in September twenty twenty one an advisory stating that the view that student athletes are employees within the meaning of the National Labor Relations Act was one that she hoped would be litigated and she was looking for a test case.
And in the wake of that, these USC student athletes filed a petition which was adopted by the Region thirty one director, and that'smuth subject of the hearings this week. In short, the National Labor Relations Board is claiming that
the student athletes are employees. By calling them student athletes, the school is misclassifying their status and they should be entitled therefore to all the rights and benefits of the National Labor Relations Act, including the right to unionize, the right to file unfair labor practice charges, and the right to seek and use the economic weapons of the National Labor Relations Act, including the right to strike.
And what is the response of u USC. What's USC's case.
First, the students are students and primarily and not employees. They go to school, they get an education, they're giving grant and aids to get an education. Secondly, that USC should not be classified as an employer. Within the meeting of the Act.
The first witnesses were former USC football players, and they described how the program officials basically controlled their lives almost all year, not just at school.
That's not a surprise if we look back to the Northwestern case, that is the same proof the NLRB adduced, and it shows that students who are athletes, particularly in the football program, in the basketball program, the revenue generating sports, are required to spend a lot of time upwards of forty to sixty hours per week throughout the school year on revenue generating activities that is, their sport for the university, without reaping any of the benefits of creating those revenues.
You know, to an outside observer, it sounds like the student athletes have the best end of this argument. Does it appear that way to you?
I think there is a very distinct argument which the NLRB is putting to the side, which is what are the educational benefits that these students are getting. If you are a student athlete, you're not going to the school simply because of its football or basketball program. Hopefully you're going there because of the opportunity to get an education too.
This is a hearing before an administrative law judge. What happens next? What's the sequence?
So once the administrative law judge completes the hearings, which is going to take several months given the schedule, the administrative law judge issues of decision. The decision can then be appealed to the full National Labor Relations Board in Washington, DC, which then issues its own decision, and that may be appealed, I believe, to a federal circuit Court of Appeals.
NCAA President Charlie Baker. Earlier this month, there was a proposal to directly compensate student athletes. He floated that concept in a letter. Would that solve this problem? And is that going anywhere?
Let me take that in reverse order. Okay, I do not know if it is going anywhere. It's an intriguing proposal because there's an additional part to that, which is that Governor Baker has floated the idea of creating a new power division, maybe out of the Power five, but a new power division which would compensate athletes. It does not provide for compensation of all athletes. In all sports at all schools.
And tell us what it would look like if the National Labor Relations Board had jurisdiction over student athletes as employees.
I think what we need to look at here are that a system in which the National Labor Relations Board would assume jurisdiction over students as employees would have the ability to create differential impacts on students and schools in three ways. One, different roles for schools in the same conference because you have schools in the same conference which are private and some which are public. USC, for example,
is joining the Big Ten. The Big Ten will now have two private schools, USC and Northwestern, and the rest of all public schools which are not subject to the National Labor Relations Board jurisdiction. Second is differential impact on frankly, all economically challenged students who look to college athletics as means to get a higher education by possibly having the schools get rid of anton aid programs for them because
they can't afford it under a new regime. And third is a potential differential impact on women who may find their sports downsized as a result of schools not being able to afford a full college program thanks Marty.
That's Martiny Dell, coacher of the sports law practice at Gulston and Stores. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg