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@THISHOUR WITH BERMAN AND MICHAELA

Supreme Court Rules Against White House on Recess Appointments; Supreme Court Strikes Down MA Abortion Clinic Buffer Zones; New Search Area for Flight 370; Team USA to Face Off with Germany in World Cup

Aired June 26, 2014 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


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JOHN BERMAN, CNN CO-ANCHOR: Hello, everyone, I'm John Berman.

MICHAELA PEREIRA, CNN CO-ANCHOR: Just making sure he had his name straight.

I'm Michaela Pereira, so glad you could join us @THISHOUR.

Two major Supreme Court rulings have been handed down in just the last hour. One of them limits the president's power to make recess appointments.

BERMAN: The other strikes down protest buffer zones around health clinics that provide abortions in Massachusetts, particularly the size of these buffer zones.

The implications on these cases, very, very big, joining us to talk about this are justice correspondent Pamela Brown at the Supreme Court and also senior legal analyst Jeffrey Toobin.

Pamela, I want to start with the issue of recess appointments here, fascinating, this is a traditional, treasured, executive end-run around Congress. What did the Supreme Court say?

PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Yeah, that's right. The Supreme Court unanimously ruling today, John and Michaela, in favor of Congress. It's a big defeat for the White House.

So this has been a high stakes power tug of war between the legislative branch and the executive branch for years. The president can use his executive power to temporarily appoint people into government positions while Congress is in recess.

Now, in this specific case the president appointed three people to the National Labor Relations Board, the NLRB, but the Senate Republicans said that they were in pro forma session. It's this legislative maneuver where they hit the gavel, and they claim that they were in session. So that was really the heart of this.

Was the Senate really in session when the president put these three people on the NLRB, and today the justices said yes. They said for purposes of the recess appointments clause, the Senate is in session when it says that it is, provided that under its own rules, it retains a capacity to transact Senate business.

So, essentially, this ruling invalidates these three appointees and possibly the decisions they made while they were on the National Labor Relations Board.

But important to note here, looking at both sides, the president said that he had to use his constitutional authority to put these people in positions while he said Congress was in recess because the Senate Republicans were holding up the nominations and they were stopping the work of the government.

So that's why the president had said he had used this, but Senate Republicans claim that the president was going under the wire and doing this while they were in recess.

So big win for Congress, loss for the White House.

John and Michaela?

PEREIRA: So, let's bring in Jeff Toobin and talk about the reality of what this means now.

As Pamela was just saying, this could invalidate the decisions that were made by the NLRB. What happens? Do they sort of stay in limbo or what happens then?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, that is not entirely sorted out. Certainly the NLRB will go back and try to reenter its orders, but I just think in a larger sense, this is a case about gridlock.

This is a case that makes gridlock more likely, more enduring, more easy to achieve by the party out of power because if either house or either the House or the Senate is in the hands of the opposing party, today's decision says they can prevent any recess appointments by keeping the Congress in session, so, yes, the president has this power, but it seems very unlikely he's going to be able to use it.

BERMAN: More ammunition for gridlock there.

All right, Pamela, I want to switch to the issue of buffer zones in Massachusetts, these 35-foot buffer zones that were passed by Massachusetts law around clinics that provide abortions.

What did the Supreme Court say about that?

BROWN: This is another unanimous ruling, John and Michaela. The Supreme Court saying this Massachusetts law requiring these 35-feet buffer zones outside of reproductive clinics that perform abortions, violates the First Amendment, that it's a violation of the anti- abortion protesters' right to free speech.

The state had argued that there had been violence outside of these health clinics or patients were harmed because of the protesters and the history of the state of Massachusetts, so they said they had to put in these restrictive zones, these 35-feet restrictive zones, outside of the health clinics to protect the patients.

But the anti-abortion protesters said they were too large, that they violated their free speech rights, and today the justices agreed with those anti-abortion protesters.

However, this is a narrow ruling, and it still gives the state of Massachusetts room to go back to the drawing board and craft perhaps a less restrictive buffer zone outside of the reproductive clinics.

PEREIRA: So, once again, we'll turn to Jeff for analysis on this. I'm curious what this is going to then mean. So, we've got this ruling from the Supreme Court.

What is this going to mean for the states? Is it going to have an impact on the buffer zones around the country?

TOOBIN: Unlike the NLRB decision, which seems to me likely to lead to chaos and gridlock, this actually seems like an opinion that could give the states a road map to reasonable compromises.

Today's opinion basically tells Massachusetts and any other state, look, you can protect access to abortion clinics while protecting the free speech rights of those who want to protest against abortion. And there are indications in the opinion of how that can be done.

So I think actually this one is likely to lead to a fairly peaceful resolution, whereas the other one, is likely to lead to chaos and dysfunction.

BERMAN: Yeah, among other things, just a smaller buffer zone, maybe a big step toward making it possible or legal in the eyes of the Supreme Court.

Jeffery Toobin, Pamela Brown, great to have you here with us.

I want to go back to the decision about recess appointments right now, because this has implications not just for this president but for the presidency in general.

Iowa Senator Chuck Grassley hailed the Supreme Court ruling. He's a Republican. He said that the justices reigned in lawlessness by President Obama.

PEREIRA: Let's bring in our White House correspondent Michelle Kosinski.

Obviously, this is going to be a big blow to President Obama. Have you sensed or heard or seen any reaction yet from inside the administration?

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Well, we're expecting it very soon. We've reached out to the White House, and they've said we're reviewing the decision, we're preparing something to say on it.

And we know that there's going to be a briefing on board the plane as President Obama heads to Minnesota. It won't be him speaking but his press secretary, so we expect something soon.

But, yeah, this is absolutely a hot button issue, and you know, this goes both ways. It even came up during the arguments of this case this has been used for hundreds of years by presidents on both sides, Republicans and Democrats, that it's been repeated over and over again.

The question was asked, is this ability of the president to appoint people during recess of the Senate really an outdated law? Because anymore, it's not used to simply fill those vacancies, but it's being used to get these appointees past the opposition.

But because it's been used by both sides, one of the people arguing said it reached an equilibrium. It's just kind of accepted.

But the justices countered because a practice has been going on for hundreds of years and it seems on its face to violate the intent of the Constitution, does that then make it right? Does that change the meaning of the Constitution? And clearly that shouldn't be going on.

The other issue is these pro forma sessions. The Senate took a recess but kept meeting every three days, stating they weren't going to conduct any business, but they were going to kind of keep the Senate going during the recess to prevent President Obama from appointing people to the National Labor Relations Board.

The president thought that was wrong, obviously. This White House disagreed with that. That's why they made the appointments.

That's another hot issue here. Should the Senate be the ones to decide when they're in recess? And, you know, what are these pro forma sessions for and should they be going on this way?

BERMAN: The Supreme Court seemed to decide, yes, the Senate should be the one to decide, saying both houses can decide when they're in recession.

And it seems like gaming the system won't be as easy for the White House, any White House, going forward.

Michele Kosinski at the White House today for us, thank you so much.

PEREIRA: More news ahead @THISHOUR.

It was likely on autopilot. The pilots could have been incapacitated. We're learning more about what happened before Flight 370 went missing.

BERMAN: Then the fight against ISIS militants in Iraq, put Syria, Iran, and the U.S. on the same side against terror. Are these really the guys the U.S. wants as friends?

PEREIRA: Rain, floods, oh, and fans, not a good mixture, the latest challenge to face Team USA in Brazil, the weather. We'll have the latest for you on the World Cup.

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PEREIRA: All right. Let's take you now to the hunt for Flight 370. It is officially now, the search is, shifting south into the unchartered depths into the Indian Ocean.

BERMAN: The new zone is roughly the size of West Virginia. It is pegged on a new data analysis by experts. And it was unveiled today by Australian officials.

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WARREN TRUSS, AUSTRALIAN DEPUTY PRIME MINISTER: This site is the best available and most likely place where the aircraft is resting.

The search will still be painstaking. Of course we could be fortunate and find it in the first hour or the first day, but it could take another 12 months.

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PEREIRA: Experts keyed in on the new zone by making critical assumptions what happened to the Boeing 777, among them that the pilots could have become unresponsive due to oxygen loss or a similar event.

BERMAN: Also, that the plane flew on autopilot for at least five hours and it glided as far as 20 nautical miles before spiraling into the sea.

PEREIRA: Joining us is our safety analyst David Soucie. He's a former FAA inspector and author of "Why Planes Crash." Good to see you, David.

BERMAN: David, it's interesting. I think the assumptions here are the things that are getting the headlines, the possible oxygen loss, that idea that it flew on autopilot, and I just want to be clear about something.

They're not basing this on any evidence they've found, any data they're getting from the planes themselves, like recorders or, you know, the tapes that they've listened to.

They're matching these assumptions to the route that the plane took and then, you know, announcing it. I just find it very odd.

DAVID SOUCIE, CNN SAFETY ANALYST: Yeah. It is kind of -- it goes both ways on this. They look at the path and they're looking at the data and from that they're driving assumptions, as before, what they were taking was the assumptions and driving the path from that, so it's a very critical change to how it is that they're coming up with this location.

It's interesting to point out too, though, that the area that they're at, the 60,000 square kilometers, that area was searched before, day 21 through 25, so they're going back to that same area. What that tells me is, because they did a surface search for debris in that area and now they're going back to that area, tells me that they think that the aircraft went in as more of a whole piece rather than in separate little pieces as well.

PEREIRA: That's a very important distinction to make. So they're going back to an area only surface searched, whereas this time they'll go back and do an underwater search with that underwater equipment, correct?

SOUCIE: Right. That's right. That's right, and it's quite a large area as he pointed out.

The difference again now, too, is that what we'll see from here forward are a lot of different locations. They're not going to just say, here's the one place we're going to search. There will be teams spread out all over, throughout this whole region looking in various areas based on those assumptions. If it was in one mode of autopilot it would have put it somewhere else because there's an efficiency mode which would have allowed it to travel longer, and then if it wasn't in that mode they would look in a different area. You'll see several different places within this large area where they're going to focus their search as well and that's really the right way to go about this.

BERMAN: And the autopilot thing, because you used the word there again, they think it was autopilot, or saying they're basing this now on the assumption that it was on autopilot because they think from the Inmarsat data that it flew in a straight line?

SOUCIE: Exactly. Had it not been in autopilot, had the pilot been controlling the aircraft it would have had a much different flight pattern and it would have gone -- the altitudes may have been different. Of course we don't have a lot of altitude information, but what we do have is the track that it went. So the fact that it stayed exactly on that track, tells us a lot about which mode of autopilot it was in.

PEREIRA: As we wrap up, David, one of the things about this area they're going back to do the underwater search, it that it hasn't been mapped. There's a couple ships in there that are working, one is a Chinese boat that is working to map that ocean floor, it's really rugged. We've seen that before, time and time again, how challenging it is.

SOUCIE: It's extremely challenging. What's going to help is if they have the map, remember this phase, what they're doing is mapping the area, not necessarily looking for the aircraft. They're just getting it mapped so that the more finite search, the smaller pieces of equipment, will know what the map is so they can search more quickly knowing what the terrain is, so that could be preprogrammed in to them so they don't take the risk of perhaps hitting something that is down there that they don't see arise or they don't fall. I think the search will progress much more quickly once it's mapped. Again it's a large area, even to map is a large area.

PEREIRA: Glad they're dedicated to the cause. David Soucie, thanks so much for joining us, giving us your perspective, as always.

BERMAN: Ahead for us @THISHOUR, Team USA faces off against Germany, some time today. The question, will they play it safe so both advance in the World Cup or will it get down and dirty?

PEREIRA: I know what you are hoping for. Plus an unexpected player in this match on the pitch, the weather. Floods near the stadium are causing quite an obstruction and a mess.

BERMAN: And then they call him the cannibal, Luis Suarez punished for biting an Italian player. He will not get dessert folks. The latest on the World Cup, next.

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PEREIRA: Are you going to be okay? Because this is an exciting day for you. The day is here, the U.S. men's soccer team getting ready for the rumble in Recife. The epic match with Germany. But there is another battle going on in northeastern Brazil @THISHOUR against the weather.

BERMAN: I like our chances against the weather more than against Germany. Rain and wind have been pounding the area for more than 12 hours. This is what drivers in Recife are dealing with today. The weather so severe, that there was talk of possibly postponing the match if getting to the stadium became too hazardous. We are covering every possible angle here.

Jennifer Grey will have details on the weather, Richard Roth has details on fan fever in the United States, but let us start with Frederik Pleitgen who is on the phone in Recife. Fred, give us a sense of what you're dealing with right now? What it looks like and if there really are any ideas that they will postpone this match?

FREDERIK PLEITGEN, CNN INTERNATIONAL CORRESPONDENT: Oh, I mean there were ideas to postpone the match, John, but FIFA has now came forward and they said that they're not going to postpone it's going to go ahead as scheduled. While I was standing in wet traffic I did see the U.S. team bus go past us. So it appears as though team USA has made it to the stadium.

But I can tell you it was a treacherous journey. It took about four hours for about six miles from our hotel to the actual venue. We had to go through several small villages because roads were flooded. At one point, there was a dead body on the road because someone had gotten run over in these treacherous road conditions. And then there were other roads that were flooded. It was and absolute nightmare this journey.

But I've also spoken to some U.S. fans on the ground here. They say they're absolutely psyched for the match. A lot of them also took a long time to get here but they say they are ready for, what Michaela precisely called, the rumble in Recife.

PEREIRA: Now the question is, if the team arrived with their hip waiters on. We want to turn to Jennifer Grey to talk about this rain. I'm seeing that the rainfall that has fallen in Recife is making today the rainiest day in 2014. This is on the eastern coast of Brazil for people that aren't knowing where it's situated. So they're not get a lot of shelter. They're right on the coast there.

JENNIFER GREY, CNN METEOROLOGIST: Yes, right on the coast. And I can believe it. They've received about 3 inches of rain just in the past 12 hours. And here's Recife and this is the forecast over the next couple of hours. You can see the rain just doesn't leave. It is going to stay here, do expect off and on showers throughout the entire game. Temperatures will be a little bit cooler because of it. I guess that's a positive. But it will be tough playing on this field. It is going to be wet. 73 degrees, the current temperature. Of course showers off and on. The showers will continue with the temperature rising throughout the game. Do expect, during the match, for temperatures to increase to around 79 degrees. It will feel like 82 on the field. It has been much worse than that. Remember the last game where temperatures were so hot, feeling close to 90 degrees. They just can't catch a break, though. It's either the hot temperatures and then today they are going to be dealing with the rain.

BERMAN: You know, I want go back to Fred, because there are some dark clouds hanging over the World Cup that have nothing to do with weather. Fred, Luis Suarez, the biter, the cannibal, one of the best players in the world, he has been suspended and that's not all that's going on down there. Two Ghana players, their own coach has basically kicked them off the team and that could actually help the U.S. maybe a little.

PLEITGEN: Yes. I mean it is absolutely crazy. First of all, the Luis Suarez incident, he's just been banned for the rest of the World Cup, banned for nine games in total, which is more than still remaining in the World Cup. Because obviously FIFA took look at this video evidence that they had and cam to the conclusion that, yes, he did bite another player on the pitch. He came forward and said, well you know these things just sort of happen in a soccer game. Clearly the world governing body of soccer feels a different way.

You have the incident on the Ghana team where apparently these two players, one of them Kevin Prince Boateng, who is an absolute world- class player, apparently were shouting at the coach so badly that they've been kicked off the team. I mean this is something that absolutely also overshadows all of the games that are going on. Especially important for the U.S. team because Ghana is, of course, in the U.S.'s group and Ghana was one of the teams that could have still thrown the U.S. out of the tournament.

PEREIRA: I want to turn to Richard Roth right now. Big thanks to Fred, stay with us if you can. Want to turn to Richard Roth, because the fact is all of that rain in Recife isn't putting a damper on the spirits of U.S. fans here in the United States. You're taking a look at one of the parties, the viewing parties, that's going on. Tell us what the energy is like there?

RICHARD ROTH, CNN CORRESPONDENT: Well there's no worry about rain where I am, because I am under a bridge. The Manhattan bridge here in the booming dumbo area of New York City, here in Brooklyn, behind me and around me sitting on the ground, on the hard cobble stone pavement, hundreds of fans ready to root on the U.S. team. I did talk briefly with one German fan keeping a low profile. They've been doing this for the last two World Cups, possible jinx, I was here when the U.S. was eliminated by Ghana four years ago in the knockout round. Big roar when the U.S. team came out to practice. They're all watching a big screen here for the match. But everyone here, strangely, is not at work. I have no idea why that is.

BERMAN: The economy grinding to a halt there. Richard Roth, we hope you do not bring the same luck to the U.S. game as you did four years ago, but you're absolved from responsibility for that one. Richard Roth, Frederik Pleitgen, Jennifer Grey, all of you, thank you so much helping us cover the World Cup fever we are all now suffering from.

PEREIRA: Take a short break here. Ahead in the news, a story that is too much to take really. A toddler dies after being left in a hot car, at first it was called a tragic accident. Now that child's father is charged with murder.

BERMAN: And then a different father finds out his son is -- his missing son is alive while talking with Nancy Grace.

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NANCY GRACE, HOST, THE NANCY GRACE SHOW: We're getting reports that your son has been found in your basement.

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BERMAN: So how did this child go undetected. What on earth is going on here. That's ahead @THISHOUR.

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