This is Bloomberg Law with June Grossel from Bloomberg Radio. The headline is that Musk has your data. That Musk has control of the systems as a Treasury appointee. That is unfathomable. The extraordinary empowerment of billionaire Elon Musk by Donald Trump seems to be the repeating headline. Musk's allies in his Department of Government Efficiency or DOGE, in their attempt to dismantle the federal workforce, orchestrated a physical takeover of the US Agency for International Development, ousting security officials who tried to stop them, and gaining access to the Treasury Department's payment systems that pay out tax refunds, social Security checks, and healthcare reimbursements. What seems to have wrong alarm bells are warnings that DOGE workers now have access to the private financial data of millions of a Marria Perkins that includes names, phone numbers, social security information, and bank information. A group of unions sued the Treasury Secretary and others, including the AFL CIO filed a separate suit against DOJE and the Labor Department to stop Elon Musk's people from accessing those systems. Many Democratic members of Congress, like Senator Mark Warner of Virginia and Representative Ayana Presley of Massachusetts, have joined protests this week in DC against Musk and his minions.

This is Bloomberg Law with June Grossel from Bloomberg Radio. The headline is that Musk has your data. That Musk has control of the systems as a Treasury appointee. That is unfathomable. The extraordinary empowerment of billionaire Elon Musk by Donald Trump seems to be the repeating headline. Musk's allies in his Department of Government Efficiency or DOGE, in their attempt to dismantle the federal workforce, orchestrated a physical takeover of the US Agency for International Development, ousting security officials who tried to stop them, and gaining access to the Treasury Department's payment systems that pay out tax refunds, social Security checks, and healthcare reimbursements. What seems to have wrong alarm bells are warnings that DOGE workers now have access to the private financial data of millions of a Marria Perkins that includes names, phone numbers, social security information, and bank information. A group of unions sued the Treasury Secretary and others, including the AFL CIO filed a separate suit against DOJE and the Labor Department to stop Elon Musk's people from accessing those systems. Many Democratic members of Congress, like Senator Mark Warner of Virginia and Representative Ayana Presley of Massachusetts, have joined protests this week in DC against Musk and his minions.

You've got, folks, we don't know anything about, looking at potentially all of our personal information, all of the money flows that go out of treasury. The Banking Committee needs to bring up the doose folks who are illegally in Treasury and have them testify. I am so tired of these big billionaire boys in their grabby little hands.

You've got, folks, we don't know anything about, looking at potentially all of our personal information, all of the money flows that go out of treasury. The Banking Committee needs to bring up the doose folks who are illegally in Treasury and have them testify. I am so tired of these big billionaire boys in their grabby little hands.

So far, the courts have been the only restraint on Musk and the Trump administration. Just today, a DC federal judge placed temporary limits on doja's access, a federal judge in Massachusetts paused the federal worker buyouts, and a Maryland judge indefinitely blocked Trump's effort to do away with birthright citizenship. Joining me is constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law, how it's so difficult to keep track of all the lawsuits against the Trump administration. Today alone, there were four hearings before judges in different states. Does it seem as if Trump is just acting and not worrying about the law or any legal restrictions.

So far, the courts have been the only restraint on Musk and the Trump administration. Just today, a DC federal judge placed temporary limits on doja's access, a federal judge in Massachusetts paused the federal worker buyouts, and a Maryland judge indefinitely blocked Trump's effort to do away with birthright citizenship. Joining me is constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law, how it's so difficult to keep track of all the lawsuits against the Trump administration. Today alone, there were four hearings before judges in different states. Does it seem as if Trump is just acting and not worrying about the law or any legal restrictions.

In my mind, he's acting with who respects the law, sort of the way he is with expect to foreign policy and the way he did business war, which was to start out dramatically asking for the moon, frightening everybody, and then slowly chipping away at demands. And it's proved effective in business to a large extent. I don't know how effective it'll be with tariffs and other kinds of international relations, and I think it'll be slightly effective with respect to legal challenges as well.

In my mind, he's acting with who respects the law, sort of the way he is with expect to foreign policy and the way he did business war, which was to start out dramatically asking for the moon, frightening everybody, and then slowly chipping away at demands. And it's proved effective in business to a large extent. I don't know how effective it'll be with tariffs and other kinds of international relations, and I think it'll be slightly effective with respect to legal challenges as well.

Alone, today there were four different hearings in courts based on the lawsuits that have been filed already on some of his orders. Now, I want to start with the empowerment of Elon Musk. He orchestrated a physical takeover of the US Agency for International Development, and also he got access to the US Treasury Department's payment system. Trump did sign an executive order giving Musk's workers unfettered access to government agencies, But as a professor once told me, executive orders are just a piece of paper.

Alone, today there were four different hearings in courts based on the lawsuits that have been filed already on some of his orders. Now, I want to start with the empowerment of Elon Musk. He orchestrated a physical takeover of the US Agency for International Development, and also he got access to the US Treasury Department's payment system. Trump did sign an executive order giving Musk's workers unfettered access to government agencies, But as a professor once told me, executive orders are just a piece of paper.

Yeah, in so many areas, there's a level of violations of Congressional enactments. Some are more egregious than others, some are subtle. I mean the role of Musk as a special governmental employee at this time is one of those gray areas. Because there is a role for a special governmental employee, they can assume powers for a limited period of time, and so far, obviously Musk has not exceeded that. But in terms of what he's actually done, there appears to be violation costs of the Privacy Act of TURAS of getting access of all those Social Security numbers. That's a pretty good indication. And of course the USAID was set up by Congress, so a presidential order cannot dismantle an agency that's been chartered by Congress. So I think there's a spectrum of action. Some appear to be clearly unconstitutional, like the birthright Citizenship Order. Some are closer in question. There's another lawsuit that was stiled this morning, I believe against Chicago or is Sanctuary's city policies. I think it's a closer call in terms of where you draw the line. So there's just a lot that's being thrown up against the wall. But some have some merit, and it's going to take a while for the courts to unravel that we haven't mentioned yet, the whole challenge to the questions about the independent agencies, since he's fired a member of the National Labor Relations Board, which is an independent agency that I think has a chance of success, and it's ultimately Supreme Court, given what the Supreme Court has said previously. But whether Trump then can take the next step and try to get rid of civil service, I'm far more dubious about that.

Yeah, in so many areas, there's a level of violations of Congressional enactments. Some are more egregious than others, some are subtle. I mean the role of Musk as a special governmental employee at this time is one of those gray areas. Because there is a role for a special governmental employee, they can assume powers for a limited period of time, and so far, obviously Musk has not exceeded that. But in terms of what he's actually done, there appears to be violation costs of the Privacy Act of TURAS of getting access of all those Social Security numbers. That's a pretty good indication. And of course the USAID was set up by Congress, so a presidential order cannot dismantle an agency that's been chartered by Congress. So I think there's a spectrum of action. Some appear to be clearly unconstitutional, like the birthright Citizenship Order. Some are closer in question. There's another lawsuit that was stiled this morning, I believe against Chicago or is Sanctuary's city policies. I think it's a closer call in terms of where you draw the line. So there's just a lot that's being thrown up against the wall. But some have some merit, and it's going to take a while for the courts to unravel that we haven't mentioned yet, the whole challenge to the questions about the independent agencies, since he's fired a member of the National Labor Relations Board, which is an independent agency that I think has a chance of success, and it's ultimately Supreme Court, given what the Supreme Court has said previously. But whether Trump then can take the next step and try to get rid of civil service, I'm far more dubious about that.

So for the first time a judge has placed limits on Doge. He temporarily limited access to the Treasury Department's payment system after a group of unions accused the agency of illegally sharing their members information with Elon Musk Government Efficiency Group. If there are people within the administration willing to work with him, it seems like it's hard to stop him.

So for the first time a judge has placed limits on Doge. He temporarily limited access to the Treasury Department's payment system after a group of unions accused the agency of illegally sharing their members information with Elon Musk Government Efficiency Group. If there are people within the administration willing to work with him, it seems like it's hard to stop him.

I agree. I mean, if he's working clearly with the blessing of the President, and so that the only time a Treasury Department official or USAID official can say no is if there is a pretty clear congressional sort of framework and give it. Despite analogy and Trump fire Inspectors General, well, Congress has a structure in place that allows for dismissal of the spector generals, but Trump didn't follow it. So in that sense, obviously the resort is to court, and I think it's clear that the court turned back those dismissals, at least temporarily, in order to force worstmenions to comply with the congressional structure. And so, you know, again we'll have to wait see things play out. But I think what's really frightening is not just that the Doge got the private information. The question is what do they really want to do with it. Do they really want to just make the government more efficient and make sure there are payments aren't going to the wrong people. That's one thing. It's another thing they have kind of a deep state and have Big Brother watching everything we do because we all have personal identifiers, and that must people may be sort of tacking on to these personal identifiers other kinds of individual indications for statistics, which gives us rise to kind of Chinese type of big government all of us. We're not there yet, but that is at least one step of the way.

I agree. I mean, if he's working clearly with the blessing of the President, and so that the only time a Treasury Department official or USAID official can say no is if there is a pretty clear congressional sort of framework and give it. Despite analogy and Trump fire Inspectors General, well, Congress has a structure in place that allows for dismissal of the spector generals, but Trump didn't follow it. So in that sense, obviously the resort is to court, and I think it's clear that the court turned back those dismissals, at least temporarily, in order to force worstmenions to comply with the congressional structure. And so, you know, again we'll have to wait see things play out. But I think what's really frightening is not just that the Doge got the private information. The question is what do they really want to do with it. Do they really want to just make the government more efficient and make sure there are payments aren't going to the wrong people. That's one thing. It's another thing they have kind of a deep state and have Big Brother watching everything we do because we all have personal identifiers, and that must people may be sort of tacking on to these personal identifiers other kinds of individual indications for statistics, which gives us rise to kind of Chinese type of big government all of us. We're not there yet, but that is at least one step of the way.

So you mentioned usaid. They asked Trump, they said, don't you need congressional approval? He said, I don't think so. There are plans apparently to dismantle the Education Department, congressional approval is required. If Congress doesn't object, or if they say, oh, well we're folding it into this Department of State, will it just go forward, then there can.

So you mentioned usaid. They asked Trump, they said, don't you need congressional approval? He said, I don't think so. There are plans apparently to dismantle the Education Department, congressional approval is required. If Congress doesn't object, or if they say, oh, well we're folding it into this Department of State, will it just go forward, then there can.

Be challenges, just like there can be challenges to the empowerment. We saw that in the President Nixon's era, and we're going to see that again. I'm sure with President Trump. If somebody who said they would have gotten money would have gotten the benefit, but for the actions of the administration to fold in the Education Department, there's something else, or hold in Usaid into the State Department or somewhere else. They would say, look, we were on a track to receive money and get these benefits, and but for the president's actions not receiving the money. And sometimes there's a standing problem there to show how close that link is. But again, it's been made with empownment in the past, and I think if you will likely be made with respect to education and Usaid as well. And so those cases will get to court.

Be challenges, just like there can be challenges to the empowerment. We saw that in the President Nixon's era, and we're going to see that again. I'm sure with President Trump. If somebody who said they would have gotten money would have gotten the benefit, but for the actions of the administration to fold in the Education Department, there's something else, or hold in Usaid into the State Department or somewhere else. They would say, look, we were on a track to receive money and get these benefits, and but for the president's actions not receiving the money. And sometimes there's a standing problem there to show how close that link is. But again, it's been made with empownment in the past, and I think if you will likely be made with respect to education and Usaid as well. And so those cases will get to court.

Ultimately, Trump has launched a full scale assault on the federal world. So this offer was made. It was called a buyout offer, but it's not really a buyout offer for federal workers to resign and then they would get paid through September. Now there's a problem with this because there is a law about how long it can be on administrative leave. But also the government hasn't been funded past March fourteenth, so there are all kinds of problems with this. Yet federal workers, you know, something like forty or fifty thousand have said they'll take the offer, even though unions have advised against it.

Ultimately, Trump has launched a full scale assault on the federal world. So this offer was made. It was called a buyout offer, but it's not really a buyout offer for federal workers to resign and then they would get paid through September. Now there's a problem with this because there is a law about how long it can be on administrative leave. But also the government hasn't been funded past March fourteenth, so there are all kinds of problems with this. Yet federal workers, you know, something like forty or fifty thousand have said they'll take the offer, even though unions have advised against it.

On this level, I think that the action adminisation that's probably legal, just like any other kind of buyout. And guess there are issues about what happens if funding drives out in terms of paying these settlements, and maybe they'll be able to use some of the money from somewhere else to pay the settlements going forward. That part is obviously unclear. That the idea in sake of saying to a federal employee, you have a right under civil service to continue your job, but we will give you an insensive to leave early, and some of them were planning to leave anyway, I think that probably is closer to the legal line in comparison to some of the other moves the administration has been making.

On this level, I think that the action adminisation that's probably legal, just like any other kind of buyout. And guess there are issues about what happens if funding drives out in terms of paying these settlements, and maybe they'll be able to use some of the money from somewhere else to pay the settlements going forward. That part is obviously unclear. That the idea in sake of saying to a federal employee, you have a right under civil service to continue your job, but we will give you an insensive to leave early, and some of them were planning to leave anyway, I think that probably is closer to the legal line in comparison to some of the other moves the administration has been making.

Now, this was one of the hearings in Massachusetts today, a federal judge paused the deadline for that so called buyout program because unions representing more than eight hundred thousand federal workers asked the judge to halt the program. So there's going to be another hearing at two pm on Monday.

Now, this was one of the hearings in Massachusetts today, a federal judge paused the deadline for that so called buyout program because unions representing more than eight hundred thousand federal workers asked the judge to halt the program. So there's going to be another hearing at two pm on Monday.

Yeah, I mean, I think there are questions of again, is this can you bind the federal government to pay make these payments when there is not continuing funding for the government. That raises an issue, you know, I think that lots of issues are contingent upon continual funding by the government and that hitting the debt, fealing, et cetera. So I mean, maybe there are some procedural issues that I'm not aware of that the court will look to to try to stop the buyout. But again, in comparison to the other moves that we've been seeing in terms of discharge of general, of the discharge of the head of an OLRB, that's dismantling of AID, I think this is far less concerning than some of the other in my mind, than some of the other moves that Trump administration is making.

Yeah, I mean, I think there are questions of again, is this can you bind the federal government to pay make these payments when there is not continuing funding for the government. That raises an issue, you know, I think that lots of issues are contingent upon continual funding by the government and that hitting the debt, fealing, et cetera. So I mean, maybe there are some procedural issues that I'm not aware of that the court will look to to try to stop the buyout. But again, in comparison to the other moves that we've been seeing in terms of discharge of general, of the discharge of the head of an OLRB, that's dismantling of AID, I think this is far less concerning than some of the other in my mind, than some of the other moves that Trump administration is making.

Coming up next on the Bloomberg Law Show, we'll take a look at some of those other moves that are being questioned in the courts. Remember, you can always get the latest legal news by listening to our Bloomberg Law podcast wherever you get your favorite podcasts. I'm Jim Grosso and you're listening to Bloomberg. Donald Trump is attempting to expand presidential power by asserting authority over US citizenship, federal spending, and the government workforce, to name a few. Is Trump daring judges to stop him from asserting vast author Some of his early moves have already led to lawsuits, and in most cases so far, federal judges have put the brakes on Trump's executive orders. I've been talking to Harold Krant, a professor at the Chicago Kent College of Law. How let's turn to that order freezing federal grants, loans, and financial assistance, which caused chaos across the country, and the Trump administration said they rescinded the memo putting it into effect, But they haven't rescinded the order, and so I guess this shows that judges, some of them, are looking behind what's happening, because judges are going forward with hearings despite the fact that the Trump administration said the memo was rescinded Democratic Attorney's General file suit, and today they said in court that state agencies were still having difficulty accessing federal funds they were entitled to. Rhode Island Judge John McConnell, who had issued a temporary restraining order, said that he believed his order was clear and he stood ready to enforce the plain language of his order. He scheduled of February twenty first hearing on whether he should issue a longer preliminary injunction. It seems to be pretty clear that Trump can't freeze funding unilaterally.

Coming up next on the Bloomberg Law Show, we'll take a look at some of those other moves that are being questioned in the courts. Remember, you can always get the latest legal news by listening to our Bloomberg Law podcast wherever you get your favorite podcasts. I'm Jim Grosso and you're listening to Bloomberg. Donald Trump is attempting to expand presidential power by asserting authority over US citizenship, federal spending, and the government workforce, to name a few. Is Trump daring judges to stop him from asserting vast author Some of his early moves have already led to lawsuits, and in most cases so far, federal judges have put the brakes on Trump's executive orders. I've been talking to Harold Krant, a professor at the Chicago Kent College of Law. How let's turn to that order freezing federal grants, loans, and financial assistance, which caused chaos across the country, and the Trump administration said they rescinded the memo putting it into effect, But they haven't rescinded the order, and so I guess this shows that judges, some of them, are looking behind what's happening, because judges are going forward with hearings despite the fact that the Trump administration said the memo was rescinded Democratic Attorney's General file suit, and today they said in court that state agencies were still having difficulty accessing federal funds they were entitled to. Rhode Island Judge John McConnell, who had issued a temporary restraining order, said that he believed his order was clear and he stood ready to enforce the plain language of his order. He scheduled of February twenty first hearing on whether he should issue a longer preliminary injunction. It seems to be pretty clear that Trump can't freeze funding unilaterally.

I totally agree Trump can't do that, you know, Laron, That's what the court said as well. I think there are issues, though, that the court is well situated to continue the case because for two reasons. One you mentioned is that it's not clear that Trumps really has lifted the order on freeze of the funds, and the reports are coming out that some funds are getting out and some funds are not. But secondly, it can be repeated, and so this is the kind of question of there's no moonness here because it's so readily apparent that Trump may freeze and this lead and to freeze other kinds of appropriated funds from Congress, so that the issue we owns alive and well. And so I think the courts will continue the cases they should, and they will ultimately conclude that this is absolutely unconstitutional.

I totally agree Trump can't do that, you know, Laron, That's what the court said as well. I think there are issues, though, that the court is well situated to continue the case because for two reasons. One you mentioned is that it's not clear that Trumps really has lifted the order on freeze of the funds, and the reports are coming out that some funds are getting out and some funds are not. But secondly, it can be repeated, and so this is the kind of question of there's no moonness here because it's so readily apparent that Trump may freeze and this lead and to freeze other kinds of appropriated funds from Congress, so that the issue we owns alive and well. And so I think the courts will continue the cases they should, and they will ultimately conclude that this is absolutely unconstitutional.

Except for the courts, it seems to be clear sailing for Trump because he doesn't have any opposition in Congress at all, except from Democrats who clearly don't have the votes.

Except for the courts, it seems to be clear sailing for Trump because he doesn't have any opposition in Congress at all, except from Democrats who clearly don't have the votes.

Yeah, and the big picture is are the guard RULs going to come from nowhere or are they going to come from the Court or from Congress ultimately? And members of the Republican of Congress kindly going to say, you know, we were elected to do an independent job, and the President has taken away our legislative authority. We don't know where the guard rules are going to come. And we just have to hope that one of those two branches will be able to step up and limit some of the cruder moves that the administration is already taken.

Yeah, and the big picture is are the guard RULs going to come from nowhere or are they going to come from the Court or from Congress ultimately? And members of the Republican of Congress kindly going to say, you know, we were elected to do an independent job, and the President has taken away our legislative authority. We don't know where the guard rules are going to come. And we just have to hope that one of those two branches will be able to step up and limit some of the cruder moves that the administration is already taken.

As far as courts, the Supreme Court, in a controversial decision, gave Trump sweeping immunity from criminal prosecution at the end of last term. Also, the Conservatives believe in this unitary executive. They're also trying to cut back on agency power repeatedly. So what do you think will the Supreme Court be supportive of Trump? They were not in his last term, but they were this last year.

As far as courts, the Supreme Court, in a controversial decision, gave Trump sweeping immunity from criminal prosecution at the end of last term. Also, the Conservatives believe in this unitary executive. They're also trying to cut back on agency power repeatedly. So what do you think will the Supreme Court be supportive of Trump? They were not in his last term, but they were this last year.

Well, absolutely, I mean I think that I think the Community decision is a one off. It's a terrible decision, but I don't think it has for what the Court will do in the future. But the Court has adopted, as you mentioned, the form of the unitary executive authility, which means the president should be able to fire any policy maker at will in order to make sure that all actions that are final of the government can be traced to the president. So I would not be surprised if the Court is sympathetic with respect to giving the power to the president to fire agency head officials, including most frighteningly the head of the FED, because that's just another type of policy that's being administered by a right now, an independent agency head. But I don't think that even if the Supreme Court takes that step, they will expand enough to the unitary to say that the civil service is an unconstitutional Many unions right now public employee beings are very concerned that the next objective of the Trump administration will put the civil service in the cross ears. And I think the court will be sympathetic to the principles under civil service. But that's that's true.

Well, absolutely, I mean I think that I think the Community decision is a one off. It's a terrible decision, but I don't think it has for what the Court will do in the future. But the Court has adopted, as you mentioned, the form of the unitary executive authility, which means the president should be able to fire any policy maker at will in order to make sure that all actions that are final of the government can be traced to the president. So I would not be surprised if the Court is sympathetic with respect to giving the power to the president to fire agency head officials, including most frighteningly the head of the FED, because that's just another type of policy that's being administered by a right now, an independent agency head. But I don't think that even if the Supreme Court takes that step, they will expand enough to the unitary to say that the civil service is an unconstitutional Many unions right now public employee beings are very concerned that the next objective of the Trump administration will put the civil service in the cross ears. And I think the court will be sympathetic to the principles under civil service. But that's that's true.

You also have this moved by the Justice Department to ferret out any employees of the FBI, whether they're whether they're file clerks or special agents, to find out whether they worked on any January sixth cases or any of the criminal investigations into Trump. I mean, it seems like a campaign of retribution that Trump has promised in an opening salvo. The agents are suing the Justice Department to try to stop their name and information from being disseminated to the public, exposing them to retribution from in particular the January sixth defendants whom Trump pardoned. And now the new Attorney General, Pam Bondi, despite what she testified to in her confirmation hearings about not seeking retribution, has announced a new working group to examine past weaponization of the Justice Department to review activities over the past four years for instances where conduct appears to have been designed to achieve political objectives, including of course, criminal probes into Donald Trump. It would also target unethical prosecutions related to January sixth, so much for her testimony.

You also have this moved by the Justice Department to ferret out any employees of the FBI, whether they're whether they're file clerks or special agents, to find out whether they worked on any January sixth cases or any of the criminal investigations into Trump. I mean, it seems like a campaign of retribution that Trump has promised in an opening salvo. The agents are suing the Justice Department to try to stop their name and information from being disseminated to the public, exposing them to retribution from in particular the January sixth defendants whom Trump pardoned. And now the new Attorney General, Pam Bondi, despite what she testified to in her confirmation hearings about not seeking retribution, has announced a new working group to examine past weaponization of the Justice Department to review activities over the past four years for instances where conduct appears to have been designed to achieve political objectives, including of course, criminal probes into Donald Trump. It would also target unethical prosecutions related to January sixth, so much for her testimony.

It's out rageous. I mean, obviously this is just vindictive, it's vengeance. There is no basis in law for this kind of witch hunt, including by the way Line prosecutors who ordered to investigate and FBI agents who are ordered to investigate the writers on January sixth, and now they're being drummed out of the government. I mean, this is just petty, vindictive moves by the administration that's kind of hateful. On the other hand, most of these probably all of them, do not have any kind of protection from at well employment and these employees, and therefore that's one of the great illustration of why protection from at plenary muval authority are so important, because you can become then victimized in this vindictive, petty way.

It's out rageous. I mean, obviously this is just vindictive, it's vengeance. There is no basis in law for this kind of witch hunt, including by the way Line prosecutors who ordered to investigate and FBI agents who are ordered to investigate the writers on January sixth, and now they're being drummed out of the government. I mean, this is just petty, vindictive moves by the administration that's kind of hateful. On the other hand, most of these probably all of them, do not have any kind of protection from at well employment and these employees, and therefore that's one of the great illustration of why protection from at plenary muval authority are so important, because you can become then victimized in this vindictive, petty way.

I mean, let's face it. On day one, he issued all these executive orders which were clearly unlawful, and one executive order directed the Attorney General not to enforce the law that Congress had passed requiring TikTok to be sold by its Chinese parent company or face a US ban. So Attorney General don't enforce the law. Has Congress, has the legislative branch just given up too much of its authority over the years.

I mean, let's face it. On day one, he issued all these executive orders which were clearly unlawful, and one executive order directed the Attorney General not to enforce the law that Congress had passed requiring TikTok to be sold by its Chinese parent company or face a US ban. So Attorney General don't enforce the law. Has Congress, has the legislative branch just given up too much of its authority over the years.

Yeah, I mean, I think that that is a great illustration, and it's not the most important policy issue in terms of TikTok, whether it be divested or not. But Congress, for good or evil, passed a statute that said TikTok atopy doves is by mid January. That deadline went and passed, and the President said, I don't care what Congress said, I'm not ready to enforce the ban. I mean, obviously the president can always not enforce things in terms of saying I don't have the resources to investigate and right now and to prosecute tact for not a body and by Congress disorder. But instead of doing that quietly, President Trump just made announcements like I don't fee what Congress says, and that's just really destructive of our separation of powers, our checks and balances. And again, at some point one can hope the members of Congress President's own party will say, don't know, we have to respect the checks and balances in our constitution. But that's not going to come anytime soon, I fear.

Yeah, I mean, I think that that is a great illustration, and it's not the most important policy issue in terms of TikTok, whether it be divested or not. But Congress, for good or evil, passed a statute that said TikTok atopy doves is by mid January. That deadline went and passed, and the President said, I don't care what Congress said, I'm not ready to enforce the ban. I mean, obviously the president can always not enforce things in terms of saying I don't have the resources to investigate and right now and to prosecute tact for not a body and by Congress disorder. But instead of doing that quietly, President Trump just made announcements like I don't fee what Congress says, and that's just really destructive of our separation of powers, our checks and balances. And again, at some point one can hope the members of Congress President's own party will say, don't know, we have to respect the checks and balances in our constitution. But that's not going to come anytime soon, I fear.

But it just seem like, it seems like at this level, at the district court level, that so far his orders or you know, his moves are being stopped temporarily stops, you know, temporary injunctions tros by the judges.

But it just seem like, it seems like at this level, at the district court level, that so far his orders or you know, his moves are being stopped temporarily stops, you know, temporary injunctions tros by the judges.

Yeah, I mean, courts are taking the responsibility seriously and most do. And I think we'll see a lot of pushback from the Trump administration in the courts, and ultimately we'll have to see what the Supreme Court does and whether the Trump administration decides to a body buy what lower courts than the Supreme Court orders were not there yet, but I'm sure that day is coming, and I'm.

Yeah, I mean, courts are taking the responsibility seriously and most do. And I think we'll see a lot of pushback from the Trump administration in the courts, and ultimately we'll have to see what the Supreme Court does and whether the Trump administration decides to a body buy what lower courts than the Supreme Court orders were not there yet, but I'm sure that day is coming, and I'm.

Sure you're right. Thanks so much, Hal. That's Professor Harold Krent of the Chicago Kent College of Law coming up the ncaaa's proposed settlement encounters problems. I'm June Grosso. When you're listening to Bloomberg, some current and former college athletes are raising objections as a judge weighs a deal that would require the NCAAA to pay two point eight billion dollars in damages for past restrictions on athlete compensation. More than a dozen objections were filed in court, with some of them taking issue with a deal provision that will send most of the settlement proceeds to male athletes, claiming the deal discounted Title nine regulations. Joining me is Alfred jen a professor of law at Boston College Law School, tell us about this two point eight billion dollar deal NCAAA, So start by just telling us about this for those who don't know what this two point eight billion dollar settlement is about.

Sure you're right. Thanks so much, Hal. That's Professor Harold Krent of the Chicago Kent College of Law coming up the ncaaa's proposed settlement encounters problems. I'm June Grosso. When you're listening to Bloomberg, some current and former college athletes are raising objections as a judge weighs a deal that would require the NCAAA to pay two point eight billion dollars in damages for past restrictions on athlete compensation. More than a dozen objections were filed in court, with some of them taking issue with a deal provision that will send most of the settlement proceeds to male athletes, claiming the deal discounted Title nine regulations. Joining me is Alfred jen a professor of law at Boston College Law School, tell us about this two point eight billion dollar deal NCAAA, So start by just telling us about this for those who don't know what this two point eight billion dollar settlement is about.

As you know, for many years, the NCAAA has taken the position that an athlete would lose his or her eligibility if she earned compensation of any sort because of her status as an athlete. So that would include direct payments from the university like salary, and it would include endorsement deals as well, so if you've got a clothing deal with Nike or something like that. And so for years, athletes forewent all of those things and did not earn any money. The NCAAA then got sued in a case called a House versus NCAAA, that's why it's called the House Settlement, contending that the NCAAA rules prohibiting athletes from earning money through so called name, image, and likeness deals so effectively endorsement deals was a violation of the anti trust law, and the NCAAA is agreeing to settle although the settlement has not yet been approved, these anti trust claims with a fairly large number of current and former athletes for a sum of money that comes to the sum that you mentioned.

As you know, for many years, the NCAAA has taken the position that an athlete would lose his or her eligibility if she earned compensation of any sort because of her status as an athlete. So that would include direct payments from the university like salary, and it would include endorsement deals as well, so if you've got a clothing deal with Nike or something like that. And so for years, athletes forewent all of those things and did not earn any money. The NCAAA then got sued in a case called a House versus NCAAA, that's why it's called the House Settlement, contending that the NCAAA rules prohibiting athletes from earning money through so called name, image, and likeness deals so effectively endorsement deals was a violation of the anti trust law, and the NCAAA is agreeing to settle although the settlement has not yet been approved, these anti trust claims with a fairly large number of current and former athletes for a sum of money that comes to the sum that you mentioned.

There are numerous challenges to this settlement, and a big issue seems to be that the provision will send most of the settlement proceeds to mail athletes.

There are numerous challenges to this settlement, and a big issue seems to be that the provision will send most of the settlement proceeds to mail athletes.

Yes, that is one of three most prominent objections that have been made. There are two kinds of payments that will be made as a result of the settlement. One is straight damages, so, in other words, because you were an athlete or you are an athlete and your earning potential has been restrained by the NCAA, we will give you a sum of money to settle your anti trust claim against us. The second kind of payment that will be made is that the NCAA and it has agreed to permit its member institutions to make payments directly to athletes, so called revenue sharing payments. And these are payments that could total as much as a little over twenty million dollars per institution, So that money would go to people who are athletes starting in the twenty five to twenty six academic year and continue on, at least in theory, indefinitely. Once you have a big bag of money like that, whether it's Type A or Type B, the question becomes, well, how do we know how much each athlete will get? And the idea behind the settlement is that men's football, and then men's and women's basketball will get much larger disproportionate shares than athletes in any other sport. And so, of course, because football is played almost one hundred percent by men in college, a huge amount of the money goes to men.

Yes, that is one of three most prominent objections that have been made. There are two kinds of payments that will be made as a result of the settlement. One is straight damages, so, in other words, because you were an athlete or you are an athlete and your earning potential has been restrained by the NCAA, we will give you a sum of money to settle your anti trust claim against us. The second kind of payment that will be made is that the NCAA and it has agreed to permit its member institutions to make payments directly to athletes, so called revenue sharing payments. And these are payments that could total as much as a little over twenty million dollars per institution, So that money would go to people who are athletes starting in the twenty five to twenty six academic year and continue on, at least in theory, indefinitely. Once you have a big bag of money like that, whether it's Type A or Type B, the question becomes, well, how do we know how much each athlete will get? And the idea behind the settlement is that men's football, and then men's and women's basketball will get much larger disproportionate shares than athletes in any other sport. And so, of course, because football is played almost one hundred percent by men in college, a huge amount of the money goes to men.

Does that pose a problem with titlelind gender equity laws?

Does that pose a problem with titlelind gender equity laws?

Well, it could be. So this is an area where I don't think we actually know for sure what the answer is. So let me work with the payments being made by the universities, the so called revenue sharing payments. Just to give you our listeners a bit of a conceptual idea of why this is so difficult. So the university is going to give money to athletes, what do we think that money represents. One possibility is we could think of it, if you will, as a scholarship enhancement. You're already a scholarship athlete at Notre Dame University, right, and we're just going to enhance the amount of money we give to you as a scholarship. One way we could think about it. Another way we could think about it is these are wages. It's as if you got a job as a research assistant or working in the dining hall or something like this. Scholarship money. It's money you earn for your labor. Okay. The reason that this could make such a big difference from the standpoint of Title nine is that the fairly consistent interpretation of Title nine by the federal government is that men and women have to receive identical scholarship assistance. You can't say we have bigger scholarships for men and smaller scholarships for women, roughly speaking, And so if we thought of these payments as a form of scholarship enhancement, then the answer would be that's right. If male players are getting one hundred and fifty thousand dollars a year scholarship enhancement, so would female players have to get one hundred fifty thousand dollars a year in enhancement scholarship. Conversely, if we thought about these as jobs. It is not the case that all the jobs at a university pay men and women exactly the same wage. Depending on the job you have, you might be paid more or less, and in some cases women might make less than men, and in some cases possibly the reverse. But if that were the case, then one might say, well, we pay football players more than we pay swimmers, and so we could see how that might be less of an issue under Title nine. We do not know how the courts think about this. In the waning days of the Biden administration, the Biden administration issued in opinion which effectively took the position that these enhanced revenues would be a form akin to enhanced scholarship payment. But of course we don't know if the new administration is going to persist with this interpretation.

Well, it could be. So this is an area where I don't think we actually know for sure what the answer is. So let me work with the payments being made by the universities, the so called revenue sharing payments. Just to give you our listeners a bit of a conceptual idea of why this is so difficult. So the university is going to give money to athletes, what do we think that money represents. One possibility is we could think of it, if you will, as a scholarship enhancement. You're already a scholarship athlete at Notre Dame University, right, and we're just going to enhance the amount of money we give to you as a scholarship. One way we could think about it. Another way we could think about it is these are wages. It's as if you got a job as a research assistant or working in the dining hall or something like this. Scholarship money. It's money you earn for your labor. Okay. The reason that this could make such a big difference from the standpoint of Title nine is that the fairly consistent interpretation of Title nine by the federal government is that men and women have to receive identical scholarship assistance. You can't say we have bigger scholarships for men and smaller scholarships for women, roughly speaking, And so if we thought of these payments as a form of scholarship enhancement, then the answer would be that's right. If male players are getting one hundred and fifty thousand dollars a year scholarship enhancement, so would female players have to get one hundred fifty thousand dollars a year in enhancement scholarship. Conversely, if we thought about these as jobs. It is not the case that all the jobs at a university pay men and women exactly the same wage. Depending on the job you have, you might be paid more or less, and in some cases women might make less than men, and in some cases possibly the reverse. But if that were the case, then one might say, well, we pay football players more than we pay swimmers, and so we could see how that might be less of an issue under Title nine. We do not know how the courts think about this. In the waning days of the Biden administration, the Biden administration issued in opinion which effectively took the position that these enhanced revenues would be a form akin to enhanced scholarship payment. But of course we don't know if the new administration is going to persist with this interpretation.

What are some of the other possible problems you see with the settlement?

What are some of the other possible problems you see with the settlement?

I think the other big problem with the settlement is, well, let me divide it again into two parts. Okay, So first there is the problem of exactly whose rights are bound by the settlement. So you have an identified class of people, let's say, a group of current and former athletes who can say they were damaged by the ncaaa's allegedly illegal practices, and they're going to get a check. Now. Normally, when a case settles, the people who are class members release all of their claims to sue against the defendant, and that's what happened between these class members. However, the revenue payments going forward, the ones that we talked about just a few moments ago, are not necessarily going to be paid to current class members. For example, let's suppose that you are an athlete now and you're fifteen years old, and you're not going to play for a Division one university until what three or four years from now? Right, you would get those revenue sharing payments. They would be capped at the limit prescribed by the settlement. But how do we know that as to that person that salary cap, that cap on payments is in fact legal. You can't say, well, you waived your claims to sue for anti trust law under the lawsuit, because that person wasn't a member of the class in this litigation. So that's one problem, right, is can you bind future athletes to the terms of the settlement. That's just a mechanical problem, which I don't think anyone really knows. The answer to yet, But my intuition is you cannot. They never signed away their right. Now, if those people have never signed away their right, then comes again the question. Is the NCAAA entitled to have a rule that limits the compensation its athletes received. That would appear to be an add trust violation, a form of price fixing, if you will. So, I think that that's a fairly furious complication to this settlement, and I am frankly somewhat skeptical that the parties have it worked out well enough. This could come apart later on well.

I think the other big problem with the settlement is, well, let me divide it again into two parts. Okay, So first there is the problem of exactly whose rights are bound by the settlement. So you have an identified class of people, let's say, a group of current and former athletes who can say they were damaged by the ncaaa's allegedly illegal practices, and they're going to get a check. Now. Normally, when a case settles, the people who are class members release all of their claims to sue against the defendant, and that's what happened between these class members. However, the revenue payments going forward, the ones that we talked about just a few moments ago, are not necessarily going to be paid to current class members. For example, let's suppose that you are an athlete now and you're fifteen years old, and you're not going to play for a Division one university until what three or four years from now? Right, you would get those revenue sharing payments. They would be capped at the limit prescribed by the settlement. But how do we know that as to that person that salary cap, that cap on payments is in fact legal. You can't say, well, you waived your claims to sue for anti trust law under the lawsuit, because that person wasn't a member of the class in this litigation. So that's one problem, right, is can you bind future athletes to the terms of the settlement. That's just a mechanical problem, which I don't think anyone really knows. The answer to yet, But my intuition is you cannot. They never signed away their right. Now, if those people have never signed away their right, then comes again the question. Is the NCAAA entitled to have a rule that limits the compensation its athletes received. That would appear to be an add trust violation, a form of price fixing, if you will. So, I think that that's a fairly furious complication to this settlement, and I am frankly somewhat skeptical that the parties have it worked out well enough. This could come apart later on well.

The Justice Department also weighed in under the previous administration, questioning whether that proposed cap on revenue sharing aimans to athletes violates antitrust law. The NCAA said in a statement, we believe the objections raise issues that will already considered as part of the preliminary approval process. And a judge did give preliminary approval to the deal. So there's another hearing schedule for April seventh. But most people seem to think that she's going to approve the deal.

The Justice Department also weighed in under the previous administration, questioning whether that proposed cap on revenue sharing aimans to athletes violates antitrust law. The NCAA said in a statement, we believe the objections raise issues that will already considered as part of the preliminary approval process. And a judge did give preliminary approval to the deal. So there's another hearing schedule for April seventh. But most people seem to think that she's going to approve the deal.

Again, we get into the whole crystal ball question. In a conventional case, I might say that that makes sense yeah, the preliminary approval is a strong indication of what might happen with the federal government weighing in with some of the problems that I've mentioned. I would not be shocked if she said either I don't approve the deal or I want another round of modifications before I will approve the deal. I think that those are within the realm of possibility.

Again, we get into the whole crystal ball question. In a conventional case, I might say that that makes sense yeah, the preliminary approval is a strong indication of what might happen with the federal government weighing in with some of the problems that I've mentioned. I would not be shocked if she said either I don't approve the deal or I want another round of modifications before I will approve the deal. I think that those are within the realm of possibility.

Even if this is signed, it doesn't end things because there are other lawsuits that have been filed. There's one file by about seventy athletes let who opted out of the settlement. Those have to go forward. What will this really settle then, Well, I.

Even if this is signed, it doesn't end things because there are other lawsuits that have been filed. There's one file by about seventy athletes let who opted out of the settlement. Those have to go forward. What will this really settle then, Well, I.

Think that this is the question that many observers have, which is, as a technical matter, this can only be a settlement between the NCAAA and the people who choose to opt into this settlement. Everybody who chooses to opt out, everybody who was never a member of the class in the first place, Their legal rights have not been adjudicated or settled away. I don't understand how this is a permanent solution as a legal matter to the state of college athletics. I think the NCAAA wants it to be right. The NCAAA wants to get out from under all the steady barrage of antitrust litigation. The NCAAA wants to retain as much authority as it can to regulate college sports and the compensation earned by college athletes. But the NCAAA also desperately wants to avoid the way other major sports enterprises do this, which is by decline daring its athletes employees, and then engaging in some form of collective bargaining.

Think that this is the question that many observers have, which is, as a technical matter, this can only be a settlement between the NCAAA and the people who choose to opt into this settlement. Everybody who chooses to opt out, everybody who was never a member of the class in the first place, Their legal rights have not been adjudicated or settled away. I don't understand how this is a permanent solution as a legal matter to the state of college athletics. I think the NCAAA wants it to be right. The NCAAA wants to get out from under all the steady barrage of antitrust litigation. The NCAAA wants to retain as much authority as it can to regulate college sports and the compensation earned by college athletes. But the NCAAA also desperately wants to avoid the way other major sports enterprises do this, which is by decline daring its athletes employees, and then engaging in some form of collective bargaining.

And what do you think about this new system where universities are going to be able to give athletes direct payments?

And what do you think about this new system where universities are going to be able to give athletes direct payments?

So I think to start, one has to recognize that in its present form, the pursuit of major college sports writ large right, So not just football, right, but football and every other sport a university offers is not necessarily a profit making venture. Only a small percentage of all the Division IE universities actually turn profits through sports. So I think we have to start from that now. I think the reason they do that is in part because sports are among the most effective advertisement vehicles a university can possibly have, Because if your team is on national television, that's three hours of free advertising you get of your institution broadcast in a positive light. So I think that universities are willing to deficit spend to have prominence sports programs because it increases their advertising and public profile. So let me start from that assumption. Now, in a previous world where the NCAA said we cannot pay the athlete, I think an economist would say that doesn't mean that each of these institutions wouldn't keep investing in athletics if they thought it would increase their prominence, and they would put that money where they could get the most bang for their buck. That might be more coaches, or athletic department administrators, all the kinds of positions. Those were the best places to make investments because they couldn't pay the players. Now they can pay the players. It's important to understand the settlement does not say that the universities must pay the players. It's that they may pay the players, and not surprisingly, paying the players may be a more efficient and effective way of increasing the prominence of the sports program then paying another athletic administrator. Right to me, this looks like under the new economic circumstances in which athletic departments are operating, they're simply making rational business decisions about where they can get the most bang for their investment.

So I think to start, one has to recognize that in its present form, the pursuit of major college sports writ large right, So not just football, right, but football and every other sport a university offers is not necessarily a profit making venture. Only a small percentage of all the Division IE universities actually turn profits through sports. So I think we have to start from that now. I think the reason they do that is in part because sports are among the most effective advertisement vehicles a university can possibly have, Because if your team is on national television, that's three hours of free advertising you get of your institution broadcast in a positive light. So I think that universities are willing to deficit spend to have prominence sports programs because it increases their advertising and public profile. So let me start from that assumption. Now, in a previous world where the NCAA said we cannot pay the athlete, I think an economist would say that doesn't mean that each of these institutions wouldn't keep investing in athletics if they thought it would increase their prominence, and they would put that money where they could get the most bang for their buck. That might be more coaches, or athletic department administrators, all the kinds of positions. Those were the best places to make investments because they couldn't pay the players. Now they can pay the players. It's important to understand the settlement does not say that the universities must pay the players. It's that they may pay the players, and not surprisingly, paying the players may be a more efficient and effective way of increasing the prominence of the sports program then paying another athletic administrator. Right to me, this looks like under the new economic circumstances in which athletic departments are operating, they're simply making rational business decisions about where they can get the most bang for their investment.

Buck. It's been a long road to this settlement, and it looks like it's going to be a long road ahead. Thanks so much for being on the show. Fred. That's Professor Alfred jen of Boston College Law School, 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

Buck. It's been a long road to this settlement, and it looks like it's going to be a long road ahead. Thanks so much for being on the show. Fred. That's Professor Alfred jen of Boston College Law School, 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