← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
States’ Rights
00:42:03
Colorado State Attorney General Phil Weiser on cooperative federalism, COVID-19, and faithless electors.
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- [00:05]
A
This is why Bill Barr can't order any state governor to decide when to end a public health emergency. The states have that authority. It's the police power of the state. And whatever the state's going to do, the state governor and the state legislature need to be accountable for it.
- [00:28]
B
Hi and welcome back to Amicus. This is Slate podcast about the law and the courts and the Supreme Court and the rule of law and all things legal, especially now in the time of COVID as we podcast from under our beds and in our closets, surrounded by towels and sheets. I'm Dahlia Lithwick. I cover the courts for Slate, and this week, remarkably, saw the Supreme Court handing down decisions from home, including a few that we will discuss in a very special Slate plus segment with our own Mark Joseph Stern. Let me just take a minute to say that this is a tough time. You probably know that lots of media companies are struggling. Slate is no exception. So if you can pitch in and support Slate through a Slate plus membership, you will really be supporting all the work we do here at the magazine. You'll get access to all sorts of bonus segments for your favorite shows, including our deep dives with Mark on the Supreme Court. And you will have ad free access to all of our podcasts. And I should note parenthetically that a whole bunch of you signed up this week for my birthday, which I really appreciate. So, look, we know money is tight, but if you have some to spare, we appreciate your support if you can manage it. Go to slate.com amicusplus to find out more. And know we are really grateful. So the courts are learning to take their proceedings online. This is very exciting. We're going to have arguments in May that we can listen in to for the first time in history. And there's also just a big old string of blockbuster cases that will be coming down in the next few weeks. We are going to be here to chew over them, I promise. But there's this other story that has bubbled up this week, and we thought we should spend a little time with it. And it's this question of Federalism and the 10th Amendment and this burgeoning war not just between red states and blue states over coronavirus, but actually between the states and the federal government. And you can hear echoes of it in Governor Cuomo's press briefings. You can hear echoes of it when Donald Trump smacks down state governors last week, I guess the president accidentally blurted out that he thought he had absolute authority over the governors of the states and could tell them when to open up. He walked that back. Yes. But we're still just watching this colossal meltdown as Donald Trump pushes the full responsibility for dealing with every part of the virus onto the states and onto embattled governors. And now we're hearing Attorney General Bill Barr this week making sort of inchoate threats about, well, suing states that don't open up fast enough for his liking. We've got a patchwork of responses from states like Georgia that want to open up immediately. States like New York, they're trying to figure out if and when they can open up at all. And none of this really accounts for the fact that we have interstate travel. Someone likened it to only peeing in one part of the pool. So I decided it would be a good idea to call an old, old debate buddy of mine, Phil Weiser. Right now he is attorney general of the great state of Colorado. And I wanted to talk to him because he is so well positioned to help us think through this question about the line of demarcation between state and federal power. Phil was sworn in as Colorado's Attorney General, the 39th Attorney General, on January 8th of 2019. Before running for office, he dean of the University of Colorado Law School, where he was also a professor. He was also deputy assistant attorney general in the Obama Justice Department and a senior advisor in the Obama administration's National Economic Council. Long before any of that, he clerked for Justice Ruth Bader ginsburg at the U.S. supreme Court. So, Phil, big wind up. Welcome to Amicus.
- [04:37]
A
So, Dalia, if I can just quickly start with my favorite Dahlia memory. It was a talk that Justice Ruth Bader Ginsburg gave that Marty Ginsburg was going to give before he passed away. And you wrote this up. And for those who are in a mood for a good cry, read it. It's inspiring. It's amazing. This was before the notorious rbg, I believe, and it was Ruth Bader Ginsburg at her best, just chilling. And it started the 10th Circuit here in Denver, their first argument, which later became famous on the basis of sex movie, which I am sure you and your listeners have all seen.
- [05:07]
B
We've seen, we've talked about it. And that was an amazing we should just note parenthetically, it was a speech that Mar was supposed to give at the 10th Circuit and he died very, very shortly after. Justice Ginsburg just delivered verbatim his speech. And she did it stoically and heroically and everyone else was sobbing and she just, as I recall, plowed through. Is that your memory, too, Phil?
- [05:35]
A
Yes, it's exactly my memory. And again, imagine what we saw in the movie of just what a wonderful supporter he was of her. He said the best thing he ever did was support her and all that she was able to accomplish. He meant it. And I often think about any man who can support a wonderful woman who's making an impact as sort of a Marty Ginsburg person, because he obviously did that before. That was a normal thing to do.
- [06:03]
B
Okay, Phil, let's do this. Let's start with the basics. You are on the front lines trying to be, as I understand it, the attorney general in the midst of really a developing crisis, conversation about states rights and governor's responsibilities and the line between state and federal government. Can you talk for a minute about has this changed your job or has it always been some version of this? What do you think about when you wake up in the morning? What do you do all day in Covid?
- [06:41]
A
So let me take three cuts at this. First, I was thinking about the role of states in the 1990s when I was working at the Justice Department for the first time and researching, thinking about federalism. So this is not a new thought for me. I ran for this job because we're in a different world. With Donald Trump as president, states are more important than ever. And I wanted to be Colorado's people's lawyer. So I stepped up to serve, knowing that federalism was front and center. Now in Covid, we are seeing this on steroids because the federal government's lack of leadership here is such a point of pain. And just to put a fine point that not everyone necessarily appreciates, states are bidding against each other for PPE and ventilators because we don't have national leadership. And one of the things the national government can do is coordinate among states things like how to procure necessary equipment. And that isn't happening, leaving states to fend for ourselves. So to get to your immediate question, one of the things we're now doing, which wasn't on my agenda earlier, is price gouging, because you have opportunistic sellers who might mark up products 800% and think they can get away with it. So that's something we're having to look at. Obviously, there's all sorts of scams arising and we are stepping up and trying to provide support. And now the other issue that's coming down the pike is consumers who are distressed in the economic fallout that's coming in the wake of the public health crisis Here, too, we have to both pick up the slack that the feds might not be doing and in some cases sue the feds for their failure to do their job.
- [08:10]
B
So I want to talk about this because I think that people have really thrown around, particularly in the last two weeks, Phil, when we had a kind of meltdown that went, you know, it swept up Liz Cheney and Neal Katial, you know, unlikely bedfellows, everybody tweeting about the 10th Amendment. And I want to be really, really clear. Can you give us your cliff notes on the 10th Amendment, on federalism, how you, if you were just teaching this to a law school class, how you would sort of help delineate the line between state and federal prerogatives in a pandemic?
- [08:50]
A
Yeah, Justice o' Connor probably has this as her most notable legacy. Another one was being the first woman in her relationship with Ruth Bader Ginsburg is something else to think about. And you probably talked a lot about this before. She was very clear. States have an independent, sovereign role to the people of their state. And so part of what is most, I would say, insidious is the federal government tries to coerce the states to do things. So the people think the states are doing it because the states want to do this. But really it's the federal government making the state do something. Put it. Finally, this is why Bill Barr can't order any state governor to decide when to end a public health emergency. The states have that authority. It's the police power of the state. And. And whatever the state's going to do, the state governor and the state legislature need to be accountable for it. The feds can provide support and say, hey, we'll give you money for a ventilator, and you can't use that money to buy guns for your police forces. But the federal government can't say, oh, we have this program that we used to give you money for your police forces. And if you don't want to open up tomorrow, we're taking away all this money. That's coercion. And that goes against the whole concept of federalism, which leaves the states with an independent sphere to operate. And as Justice Brandeis famously explained, this is a real strength of our system of government. The states can be laboratories of democracy, and we in Colorado have been one. We were the first state to legalize marijuana. Now, that's in 36 states in one form or another. That's what our country has been about, and it's important to remain that way. And if the federal government is going to turn its back on those principles, we're going to fight for them in Court.
- [10:26]
B
So this is where I want you to be super clear for me, Phil, because it's the thing that, again, I think has been really elided in the national kind of freak out about what the federal government should have been doing in a perfect world. You're right, states have vast constitutional authority to regulate health and welfare in the state, but we also do have a long, long history of the national government involving itself in health policy. Right. And this doesn't start with the Affordable Care Act. So in a perfect world, we would actually want Congress to be effectively putting measures into place to protect sort of the public health and safety that you're saying is the state prerogative. So I just, I guess what I want to ask to make it crystal clear is if we had a functioning Congress that wanted to be responsible in this pandemic, there are a lot of things that Congress could be doing. It's not the case that this is solely the authority of the states. Right.
- [11:29]
A
That's right. Let me go back to where I started. The federal government, in a perfect world would have been ramping up and building up testing capacity in January, February, knowing this is coming, and would have said to every state, we have all this testing capacity. We are going to provide it to you either directly could have federal laboratories offering testing or give it to the states or some other form. That would be a extraordinarily valuable role the federal government could play. It hasn't played that here. The states have been fending for themselves on testing, among other areas.
- [11:59]
B
So when Donald Trump last week said, oh, I have absolute authority to order governors to open up their states, he was both offending sort of the principle of the 10th Amendment, federalism and states rights, but also, actually, weirdly, separation of powers principles. Right. Because presumably he was sort of interpolating into congressional prerogatives, his own executive powers, which he actually doesn't have. Correct?
- [12:25]
A
It is correct. And it's worth noting, Thursday of this week in Colorado, we won a case involving bird JAG grants, which involve both federalism and separation of powers. Because Congress passed these burn JAG grants. This is something I alluded to before. They provide law enforcement with funds for a range of purposes. It's going back decades. All of a sudden, the Trump administration said, we're going to add new conditions onto these burn JAG grants that Congress didn't provide for, and we are going to make the states do our work for us. In this case, immigration enforcement, violating both separation of powers principles and federalism principles.
- [12:56]
B
So I want you to talk a little Bit about the ways in which this is not a new proposition. The states have banded together to push back against executive authority. I mean, we saw red states doing it in the Obama era when they didn't like the Affordable Care act or they didn't like environmental regulations. We've seen blue states pushing back in all sorts of contexts against Trump and Trumpism. So this is a longstanding thing. Have the blue states who are now entering into all sorts of compacts with each other, what's different and new and what is sort of preexisting, what is kind of a continuation of blue state agreements and priorities from the last couple of years and what's new in the last couple of weeks?
- [13:47]
A
It's worth putting this in some context. And 2006 is an important starting place. Massachusetts versus EPA. This is a case involving the Clean Air act where the Massachusetts AG sues saying carbon is a threat to human health. The EPA needs to do something about it. The Supreme Court said two things. The Massachusetts AG has the authority to bring such a suit on behalf of the people of Massachusetts. And number two, the EPA needs to do its job and oversee carbon as a threat to human health. That. That I believe more than any other single point marks this role that we're talking about, which is state AGs having a role as a check on executive power. Part of why it's more important than ever is we're seeing a less functional Congress than ever. So Congress isn't doing the sort of oversight that we might all like and benefit from. With respect to how is this moment different, I'd say there is a little bit more and sorry for the overused word. I think it was the top word of last year, existential threat around this. And it started right with the Trump presidency around issues on immigration, the ban of Muslims entering this country. It was such an offensive proposition to me, for example, who came here as a first generation American and been able to benefit from this American dream that we all really celebrate. My mom was a refugee. She was born in a concentration camp. As you know, my grandmother was an amazing person. And they came here with nothing, didn't speak the language. To target someone based on their religion seems so anti American. And the state AGs felt we're the ones to stand up for our Constitution. I know you've had other AGs on your show talking about these efforts that I believe set the tone that has continued and that was part of the tone that I was running for AG in. And unfortunately it has continued as issues have come up. The Affordable Care act being a recent one where the Supreme Court's going to hear this case and it's Democratic AGs against the justice part and Republican AGs, I do want to note, and this is an important Exception, there are two Republican AGs who are standing up for the rule of law and a principle that you don't knock down a whole law because one piece might be unconstitutional. Those are heroes. And it's the ags of Ohio and of Montana. No coincidence, probably they're both Medicaid expansion states. We are otherwise seeing, as you note, a divide where we who are looking at these important rules are asking who's going to enforce them. And in the Justice Department, we're not seeing that enforcement. The Affordable Care act case was a notable one, but not the only one. And so this has been a progression. There was some of this, obviously under Obama. There's a reasonable argument that Republicans could make on a range of fronts and that gets worked out in court. We're seeing a lot more of these going to court because I believe we have an administration and Bill Barr, unfortunately at the DOJ who doesn't tend to respect the rule of law in the way that that institution at its best does. The Affordable Care act case for me is head scratching and it's a sad moment for the doj.
- [16:38]
B
So, Phil, I guess you're describing a sort of sea change in the role of state attorneys general. And I'm wondering if with that there has come massive politicization, you know, expensive campaigns, really polarizing and ugly races. In other words, has this become like state supreme court races, something that has just pretty much torpedoed the notion that you can be sort of an attorney and doing law and that there is some neutral principles here. Has it just become mud fight across the country?
- [17:13]
A
Let me give two answers that actually are somewhat intention. First, to your point, we are seeing particularly the Republican Attorneys General Association. It was founded first. It's considerably more well funded doing what you just said, which is targeting races. In my race in Colorado, There was almost $6 million spent by this outside group against me. And it was very much going to be like you say, attack politics at its worst. It didn't actually target me on the issues. It was more ad hominem. And I knew that going in and my kids were prepared and we had to figure out how we responded and we stayed on the high road. I'm proud of the campaign we ran because I wanted to run on the issues. And part of what I was saying when I was running, for example, is if the Supreme Court's going to reconsider Roe versus Wade. I'm going to fight to defend it. My opponent tried to avoid addressing this issue and even said something like he'd have to think about what to do if that happened. So there was a. There was a real contested campaign in Colorado. We are a swing state, and I was committed to mobilizing people engaging on the issues. Now that I'm Attorney General, I want to say I am super committed to collaborating across party lines every chance I get. And I mentioned two AGs in Ohio, in Montana, the AG in Idaho, in Nebraska. They're both Republicans. They're amazing people who are real public servants. And on many issues, we can and still work together. And this is the challenge we have. I try hard not to mention the President's name because it sucks oxygen out of the room and just kind of depresses people. I work on common ground to make progress on a range of issues in Colorado, Things like criminal justice reform across state lines, things like the opioid epidemic and antitrust investigations that are involving big tech companies. This is hard because we do face this challenge that we have a national political environment that is more polarized than ever. The ag position can become more polarized. So there are those forces in play. And I am doing my part to stand up against them and to find ways to work with people to solve problems regardless of their party.
- [19:08]
B
And I don't know if I'm inviting you to engage in ad hominems, but what do you do when you see, for instance, the Texas AGs around the country who are really kind of opportunistically using this pandemic to restrict abortion access or do things that seem to do absolutely nothing to further the sort of health and safety goals that you're meant to be protecting.
- [19:37]
A
We have the ability to disagree but not have it burn the relationship. And so I joined an effort to stop Texas from doing what I thought was unconscionable, which is denying women's health care during a pandemic. That's so wrong in so many ways. That said, I will work with the Texas AG on opioids, on antitrust investigations, on other fronts, and part of what was a tradition in Congress, and this is actually worth reflecting on in Congress. There used to be that tradition. Orrin Hatch and Ted Kennedy, they fought about a lot of things, obviously, but they could find ways to work together on other things. That was a honor tradition in the ag world. That tradition very much exists. And it's something I value. The fact that we're all lawyers. And the fact that we're all accountable to the rule of law, I believe matters because it creates a rigor and a discipline that binds us in ways that if you're a legislator, you may not have.
- [20:26]
B
Can you. I've gone back and looked at a bunch of your speeches and things that you've written. Can you talk a little bit about what you mean when you think about cooperative federalism and how we should be thinking of it? I think it's not a phrase that sort of trips off the tongue of the average American, but I think it's really, really central to how you think about states.
- [20:48]
A
This is absolutely right. I'm going to start with the point we made earlier and then go into the aspiration. What I made earlier is states have the right to exit. States cannot be forced into a partnership with the federal government. That, again, is undermining these core principles. At our best, the states and the federal government are partners. Think about the Affordable Care Act. The federal government creates this framework, invites the states to work together with the framework, and gives the states a lot of autonomies. Colorado, we've got our own healthcare exchange, for example. Other states work on the national exchange. That's a choice that states can make. A lot of states have different things they may decide to support or not support. That's within a federal framework. Same thing with the Clean Air Act. The states get a lot of room to maneuver, and I have a healthy respect for that choice and autonomy that states have. The experimentation I talked about earlier, and what's beautiful about this is at the federal government, if you've got people who are engaged, paying attention, they look around, they say, oh, this engine. Colorado is trying this with respect to air quality. Let's see if it works. And if it works, let's publicize best practice. And this is a spirit I take to all the work I do, including within a state. Mesa County, Grand Junction has done this great work on bail reform. I notice that I can then publicize it to other counties. That is the spirit of cooperative federalism. We are partners, we are cooperating, and there is a framework that we work within. Of course, we don't have to, but the feds have so many resources, we'd be crazy not to. And we can learn from each other. That's a partnership. That's a spirit of cooperation. It can break down. If the person at the helm at the federal level basically says, I have no desire to cooperate with you, I want to undermine you, or if the state people say, we're done, we're out, we're not playing. And I don't see many of those examples, but those are theoretically there, whether it's telecommunications, which is the area I got started in, health care, environmental issues, what have you.
- [22:42]
B
I feel that I have to ask this because I think we have done every show for the last four months about this. But talk to me about voting. Talk to me about November 2020 and what you're thinking about, what you're worrying about, what the folks in Colorado are doing in order to make sure that there's a free and fair election. I'm sure if you've listened to the show, you know that it's all I think about. But go ahead, reassure me.
- [23:06]
A
Well, first, how could you watch that Wisconsin election and not be in mortal terror about what could happen in November? What everyone needs to do is study the Colorado model. Colorado automatically registers everybody. It mails people a ballot. It makes it easy to mail it back or drop it off. It gives people time to vote and it is committed to the highest participation level possible. That is democracy at work. It works really well. What other states can still do is learn from this model and have free and fair elections with full participation. That should be the American way. What you are afraid of is absolutely right, which is too few voting stations forcing people to choose between their health and their basic constitutional rights. We shouldn't be put to that choice. What happened in Wisconsin is a negative role model. I very much hope we have federal support to make this transition. This would be, to my mind, a no brainer. The federal government says we're having an election and this is the upside of this pandemic, Dalia, is if we can learn things that we maybe knew before, like telemedicine or online learning, and do them better because we have to, we will be better in the long term. Voting by mail safely is one of those things. We've learned enough that we should do it. Colorado has proven it. I'd love to see it go national.
- [24:28]
B
And you haven't had vast experience of fraud or, you know, the kinds of crazy bugaboos that we hear invoked about vote by mail. Right.
- [24:39]
A
No, we've had extraordinarily few cases. Those few cases do get referred to our office. They are minuscule. We know who the people are who are eligible. They're the ones who get the ballot. They have to sign it. It's not like this is an easy thing to screw with. Obviously, if the US Mail goes bankrupt, that's a different problem, which we can't let happen as a nation. But our system as it has worked has been a huge success.
- [25:06]
B
And now let's return to our conversation with the Attorney General of Colorado, Phil Weiser. I want to ask you about it's looping back a little to this meta question of separation of powers. But one of the questions I'm asked increasingly often, especially now in the midst of the pandemic is why haven't we seen a massive authoritarian power grab from this administration? This is an administration that has been very, very apt to say, oh, you know, border emergency, I guess we need to build a wall, I guess we need to seize funds. And yet we've seen almost nothing. In fact, what we've seen is gross abdication of responsibility. And generally my answer has been the reason we haven't seen a sort of Viktor Orban style authoritarian power grab is just because there's too much chaos. Because, you know, the federal government, right and wrong, has been peopled with, you know, some grifters and I guess a labradoodle breeder and you know, other folks who just can't get it together to seize power in any meaningful way. But the other part of the answer, Phil, has to be federalism. It has to be that states by design, that framers were terrified of authoritarianism. And so there is this massive, this other check you're talking about, which is Bill Barr can say he's going to sue the states if they don't open up fast enough. But there's absolutely no merit to that claim. I mean, it has to be the case that federalism in this moment is one of the biggest checks against a really authoritarian power grab.
- [26:46]
A
You have put your finger on it and this is something that the founders appreciated. You are absolutely right. They were terrified of concentrated power. They studied King George and wanted to ask the question, how can we create a government that diffuses power and protects liberty? States having the independent authority that we have is absolutely a protection of liberty. It's a protection also, as you noted, this is really important to me of sound governance. Part of the problem at the national government, which people like in Hurricane Katrina like now see, when you don't have the expertise at the helm, the administration doing things that would serve the nation, like building up testing capacity. You are playing Russian roulette now. We aren't as a nation purely playing Russian lit because we have the states so that states are able to step up and fill that void. If we did only have a national government right now, this pandemic would be much worse because the states have been the ones in the lead, which is why people are talking about governors, whether it's Mike DeWine in Ohio, Andrew Cuomo, New York or others, that has filled a vacuum. The federal government leadership is most effective when it can be out ahead of issues and it can be led by competent administration. That's why during the New Deal, FDR was able to have such a national impact, because it was competent and it was doing things. But if the federal government is not doing things, if it's purely reactive, behind the curve, chaotic, then the states have to fill the void.
- [28:16]
B
So this leads me to the thing I really wanted to press with you, Phil, which is this question of states and civil liberties. Because one of the things we are certainly seeing, particularly this week, whether you believe the protests are Astroturf or not, are a lot of people pushing back on, you know, stay at home orders. A lot of people who are making claims about wanting to open their businesses, wanting to, you know, we, we, we kind of can brush it off as, you know, privileged people wanting manicures. But it's not that there are legitimate religious liberty claims. There are legitimate speech claims and protest claims. And I wondered if you can give us a framework for how you think about, you know, it's interesting again, I think, to keep talking about Bill Barr, but one of the things that he said when he talked about suing states to reopen is that these stay at home restrictions are, quote, disturbingly close to house arrest. So I want you to work through with me what your framework is for thinking about. I know you were involved in Colorado in trying to get the Hobby Lobby stores to close down when they refuse to close. Help me understand. Do we just say no? It's basic police power, it's basic parents patriot power and the state can do whatever it wants and folks have no liberties. Or is it more complicated than that?
- [29:39]
A
It's a little more complicated if you are, as you're putting your finger on it, seeing two values up against each other. So the police power and protecting. In a case of a pandemic, there is authority and it's long standing Supreme Court has looked at this for quarantines. That is the best approach in the face of pandemic. The concern that I believe you're putting your finger on is how do we ensure that's done responsibly and not abused. This is where we have a legal system and actions that are authorized by law can be tested as to whether or not they are lawful. We had the first such test actually in Colorado to the governor Stay at home order. It did not go anywhere. It was rejected pretty quickly. I could imagine situations where governments abuse this power in ways that people say, wait a minute, this is arbitrary. You're playing favorites. You're not playing it straight. And it's healthy to have that question raised and to have a check on government action. I believe what we've done in Colorado is all authorized. The one challenge, like I said, didn't go anywhere. But we need to keep asking these questions. Absolutely.
- [30:46]
B
I think I have to ask you about. You are going to have the amazing privilege of arguing before the Supreme Court, which is no longer a secret society. It's gonna be broadcast and I imagine popcorn will be sold. This is something I've wanted for a long time. The Supreme Court itself opening up. But you're going to argue in front of the new makeshift zoom Supreme Court next month.
- [31:12]
A
Yes. It won't be on Zoom Dolly. It'll be a telephonic argument broadcast live on C Span involving a cornerstone question of our democracy, which is can electors act as free agents or can states bind them to do what the people of the state want? And no surprise, given our talking about federalism, I believe states can have the authority to take it on themselves to say we want our electors to be agents of the public and only to do what the public wants. That's our position. We didn't win in the 10th Circuit. We're now heading to the Supreme Court. And as someone who's been a law professor, I couldn't resist. We're making a Kaba to Go supreme video series so that we can get people of all ages excited in understanding our Constitution and our election system. We in Colorado, like I said, are proud of having elections with lots of people participating. We're proud of being the first state to allow women to vote. Truth. Wyoming did do it as a territory, but we were the first state to do it. So I give us some credit there. And this will be a case that is super novel because we're interpreting parts of the Constitution that don't get talked about a lot. The appointment of Electors, the, the 12th Amendment and the 24th Amendment all play prominent roles in our argument.
- [32:22]
B
And I'm so glad they're not gonna be zooming Phil. Cuz I have this like mental image of like Justice Breyer, like just peering at the screen, being like what? I can't hear anyway. Okay, sorry, talk. Can you, can you give us the background on the faithless electors case? Cause it is very much. I think one of the cases that were we not in a pandemic everyone would be paying a lot more attention to. And also, this is a blockbuster term. And so maybe this doesn't quite, you know, match June Medical, but I think it's an essential, democracy affirming case. And I wonder if you can just tell us the backstory and what, as crisply as you can, what the issues are and what the stakes are.
- [33:03]
A
Sure. So the founders decide to do an Electoral College, which was basically a compromise to have states have some role here. Supposed to all be national. Also, it was a way to apportion power between states, and we have this Electoral College. The founders didn't really think too long and hard about how lectures would behave. Hamilton had one view. Madison had a different view. Pretty quickly, what happens is all electors get bound as agents of their political parties. Parties get going. We have the 1800 election with a tie because the Democratic Republicans end up having everyone vote for both Burr and Jefferson. We get the 12th amendment, separate elections for president and vice President, and at that point, we just go on our merry way. And generally, electors are agents of their parties. Early in the 1900s, we start getting states passing laws saying that. That those electors have to actually do what they said they were going to do. The Supreme Court in the case involved Alabama, Ray versus Blair says, yeah, that's okay to have pledges for electors. But Wray reserves the question about whether those pledges that can be a condition of being an elector are potentially enforceable after the fact. We're now up to 32 states in D.C. all of which have these laws that say electors have to do what they're going to say they're going to do. We've never had the Supreme Court visit this issue. Ray versus Blair was in the 1950s, but every single state court and federal court has said, yeah, you can have a binding law that tells electors they have to do what they say they're going to do until the 10th Circuit rules after the 2016 election saying that a gentleman named Michael Baca was removed improperly because he has the constitutional right to be a free agent and do what he wants to do. And that 10th Circuit opinion kind of broke out of this norm. Larry Lessig, a friend of mine, argued that case in the 10th Circuit. Once that came down, I said, wow, this thing may go to the Supreme Court. There was a Washington Supreme Court case at the same time. That case involved a fine which went the other way. Both cases were teed up to the court. The court said, yep, we want to consider this issue once and for All. And thank God they're doing it this spring. Not in the middle of a presidential election with the whole presidential election riding on it. That would have been a spectacle. And our point is a couple fold. One is states have this authority. That's what the Constitution does. It's important to honor that state authority. State states can make electors free agents if they want to, but they can also require them to be bound to the public's will. We also point out that if you have no removal powerful electors, you could have an elector be bribed, for example, and the state would be powerless to do anything about it. We think that's not feasible. And we want to honor the will of people of Colorado as the law they passed. And so that's why we're defending it. Supreme Court will hear it. It's I think 9am Eastern on May 13th on C span. You can watch for yourself. And.
- [35:37]
B
And will you be wearing flip flops? You can tell us.
- [35:39]
A
Really interesting.
- [35:40]
B
You won't tell justices?
- [35:41]
A
I will tell you. I'm gonna wear a suit, actually, because part of the challenge is you don't want to give in to feeling too informal. You really do want to take it seriously and it's going to be a still a great experience. I'm going to miss not doing it in person, but I'm really glad we're getting the argument and we're getting the decision on time.
- [36:02]
B
If we weren't in the midst of COVID mania right now, what would be the things that you are working on that I know you're still working on them, but can you talk a little bit about some of the things that are other priorities, not Covid related?
- [36:18]
A
When I took office, I talked about five areas of priorities. Number one is defending the rule of law. We've talked a lot about that. That's obviously really important. Two is the opioid epidemic. I can come back and talk a little bit more about this. It is having a devastating effect on parts of our state. Three is improving criminal justice. We have a real opportunity right now to reform our criminal justice system. We incarcerate more people by far than any country in the world. There's a lot of opportunities there. Number four, protecting consumers. This has actually been where I spent most of my life work, including an antitrust. And we are seeing consumers being taken advantage of in ways we never have before. And number five, protecting our land, air and water. We in Colorado depend on this. This is a critical resource for us. And so those are my top five priorities before this crisis. Obviously, the crisis has added a whole new dimension. But we're going to keep walking and chewing gum the same time. Those are still areas I'm committed to working on.
- [37:10]
B
Can you talk a little bit about the antitrust piece, Phil? Because I know it is something that you've thought about so much.
- [37:16]
A
What we have to start with is the recognition that our economy is more concentrated today than it's ever been. Whatever industry you look at, take airlines, for example, you are seeing more concentration. You're seeing consumers paying higher prices as a result. One way to know this, in airlines, for example, when oil prices went down several years ago, usually you think, oh, that's lower cost. They're going to pass it on to consumers. Literally all they did was give free peanuts to people at the time and made record profits. That's the sign of an industry that is not healthy as a competitive matter. And what happened was there were too many mergers that were approved and there wasn't enough entry because there had been some practices, including predatory pricing, that drove out some of the upstart competitors we saw in the 1990s. That's bad for consumers. Consumers are better served when there's competition, when there's more entry and innovation, and in too many industries, we're not seeing that. This is part of what I've talked about. It's a real concern of the public. And one great importance of state AGs is we can do our own antitrust enforcement separate than the Feds. And in Colorado, we had a case actually where the Fed said, we're not going to worry about this merger. We're going to let it go. And we said, not so fast. We think this could hurt our healthcare consumers. We're gonna go ahead and do something about it. And we did, by ourselves.
- [38:29]
B
Phil, I wanna let you go, but I feel that I wanna ask you the question I have asked many, many guests in recent weeks and months, and that is, you know, there are an awful lot of people who are listening to this who are really panicking. They're panicking about the President telling people to drink bleach. They're panicking about really SC the presidential power to just shut down Congress. People are feeling like there is not going to be a free and fair election and the post office is not going to be functioning. What do you tell folks when they say to you, Mr. Attorney General, I am freaking out, and I just do not see the scaffolding of constitutional democracy holding through this period. I know you more than anyone really believe that the superstructure is going to hold here, but what do you have faith and confidence in?
- [39:30]
A
Let me start with an inspiration of mine. I mentioned before my grandmother who delivered my mom in a concentration camp. And I would ask her, bubby, which is what I called her, how did you believe you would have a better future? And she would say to me, it's easier to believe. And she's someone who lived through the Holocaust. She came to the United States and didn't speak the language. And she worked hard and she became an accomplished investor and is someone who was always positive. So my answer, Dalia, is we need to stay positive. We all have a choice. We can stay positive or we can mire ourselves in doubt and fear. And that is contagious. But you know what? So is hope. And so stay hopeful. The arc of our moral universe has continued to bend towards justice. It's not always a straight line, and we have a lot of bumps in the road in this country. But we've got this great tradition. It is a tradition that the world has looked to, and I still believe in that tradition. And I still believe that we will see our institutions validated through this experience and that we will get through it and be able to be stronger than before.
- [40:43]
B
Phil Weiser is Attorney General of the great state of Colorado. He was sworn in in that role on January 8, 2019. Before that, he was dean of the University of Colorado Law School and served in the Obama administration. Phil, thank you very, very much. I know you're crazy busy, but thank you for giving us so much of your time.
- [41:03]
A
It's always a pleasure, Dalia. Keep doing what you're doing. It means a lot.
- [41:09]
B
And that is a wrap for this episode of Amicus. Thank you so, so, so much for listening in. Thank you for your letters, for your questions. You can keep in touch@amicuslate.com or you can always find us@facebook.com amicuspodcast and we do want to know what you're wondering about. And we do want to know what you need more of. Today's show was produced by Sarah Burningham. Gabriel Roth is editorial Director of Slate Podcasts and June Thomas is senior Managing Producer of Slate Podcasts. We will be back with another episode of Amicus in two short weeks. Stay safe. Take care of yourselves and others. Wash your hands. Hang in there. We'll talk soon.