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Trump $464 Million Penalty Tossed & New Citizenship Hurdle · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Nearly two thousand National Guard troops are now in d
0:11
Speaker 2: C as federal authorities deployed checkpoints around the city and
0:17
Speaker 2: sometimes ask people for their immigration status after stopping them.
0:22
Speaker 2: And tonight, President Trump visited with police and National Guard
0:26
Speaker 2: units that are patrolling d C. Hey guys, how you
0:29
Speaker 2: doing yesterday? Chance of free DC could be heard as
0:33
Speaker 2: Vice President jd Vance delivered Hamburgers to National Guard troops
0:38
Speaker 2: at Amtrak's Union station.
0:41
Speaker 3: I think you hear these guys out outside your screening
0:43
Speaker 3: at US.
0:44
Speaker 1: Of course, these are a bunch of crazy protesters.
0:46
Speaker 2: Top Trump aid Stephen Miller had some harsher words.
0:50
Speaker 3: Any stupid white hippies that all need to go home
0:53
Speaker 3: and take a nap because they're all over ninety years old.
0:56
Speaker 2: Immigration enforcement has been a core part of the crackdown
0:59
Speaker 2: in DC, rattling people in some of the city's neighborhoods.
1:04
Speaker 2: My guest is immigration law expert Leon Fresco, a partner
1:08
Speaker 2: at Hollanden Knight. Leon. DC is a sanctuary city, but
1:13
Speaker 2: the Metropolitan Police Departments is now required to share information
1:18
Speaker 2: with immigration officials and even assistant transporting detainees, according to
1:24
Speaker 2: a director from the police chief. So does that sort
1:28
Speaker 2: of destroy the sanctuary city status.
1:32
Speaker 1: There's the law, and there's the policy, and there's what's
1:35
Speaker 1: actually happening. And so, yes, the DC City Council had
1:41
Speaker 1: this order, entered this provision that said that they would
1:45
Speaker 1: not report during arrest information to ICE. But now if
1:49
Speaker 1: the police chief is saying they are going to do this,
1:52
Speaker 1: then the question is going to be, fine, will there
1:56
Speaker 1: be an organization within DC that sues about this? And
2:00
Speaker 1: this has also a bit complicated because if it's the
2:02
Speaker 1: DC police chief that's doing it, then does the DC
2:07
Speaker 1: Attorney General sue or an individual immigrants rights group sou
2:11
Speaker 1: But the point is for now, if you are stopped
2:14
Speaker 1: in a traffic stop in DC and the DC police
2:19
Speaker 1: believe there's some reasonable suspicion that you are not here
2:22
Speaker 1: in the United States lawfully, they can extend the time
2:27
Speaker 1: of your stop and call ICE to determine if you
2:31
Speaker 1: are here lawfully or not. And so that is happening
2:34
Speaker 1: as we speak, and they are claiming on a daily
2:38
Speaker 1: basis that they're arresting some number of people who are
2:41
Speaker 1: here unlawfully and they're placing them into the removal process
2:46
Speaker 1: or you know, in detention because they've already been ordered removed.
2:50
Speaker 1: So that is something that is happening in DC, and
2:52
Speaker 1: the only way that that would stop at this point
2:55
Speaker 1: would be to get a judicial order in joining it.
2:59
Speaker 2: So, despite this huge push, you know, crack down, arrest
3:04
Speaker 2: by US immigration agents dropped by nearly twenty percent in July.
3:10
Speaker 2: And by the way, the Trump administration disputes that data,
3:13
Speaker 2: as they have been disputing a lot of data lately.
3:16
Speaker 2: Why would it go down.
3:18
Speaker 1: I think there's a couple of reasons, and I don't
3:21
Speaker 1: think they're necessarily indicative of a reduction overall and immigration enforcement.
3:26
Speaker 1: It's just what happens is a couple of things happen
3:29
Speaker 1: at the same time. Number one, there was that moment
3:34
Speaker 1: where there was this sort of ramp up in arrest
3:37
Speaker 1: and then the money sort of dried out until the
3:40
Speaker 1: quote unquote big Beautiful Bill was passed and now the
3:43
Speaker 1: money is starting to ramp back up so they can
3:45
Speaker 1: actually start making more arrest. That's number one. But number two,
3:49
Speaker 1: they were able to put more people into the removal
3:53
Speaker 1: process without meaning to actually make an arrest, so to speak.
3:57
Speaker 1: So if they were giving people papers at USCIS, or
4:01
Speaker 1: they were getting people papers in court or whatever, the
4:04
Speaker 1: arrests are tied into whether you have detention capacity or not.
4:09
Speaker 1: And because all of the detention facilities were full, they
4:13
Speaker 1: weren't really able to make more arrests in the sense
4:16
Speaker 1: of actually arresting someone, putting them in a detention facility
4:19
Speaker 1: and holding them. But they are putting many, many more
4:22
Speaker 1: people into the removal process, even if they aren't effectuating
4:26
Speaker 1: an arrest and a detention. And so from that standpoint,
4:30
Speaker 1: I think these numbers, it's such as they're right or
4:33
Speaker 1: they're wrong, it's that they're all representing different snapshots in
4:37
Speaker 1: the process. But what I can tell you, and I
4:40
Speaker 1: think no one really would dispute this, is that the
4:44
Speaker 1: panoply of enforcement is much greater today than it's been
4:49
Speaker 1: in the last decade. And so even if that doesn't
4:52
Speaker 1: mean that in July particularly, there were more arrests that
4:57
Speaker 1: led to detention because again there was not space that
5:00
Speaker 1: would have been available at that moment to put people in,
5:03
Speaker 1: that space is starting to ramp up. Those detention bed
5:07
Speaker 1: will be available, which means more arrest can be done
5:10
Speaker 1: to put people in those detention beds and then written
5:13
Speaker 1: large more people are being placed into the removal process
5:16
Speaker 1: than before.
5:18
Speaker 2: On the topic of sanctuary cities, last week, Attorney General
5:22
Speaker 2: Pam Bondi sent a letter to officials in nineteen cities,
5:26
Speaker 2: four counties, and twelve states that Justice Department accuses of
5:30
Speaker 2: engaging in sanctuary policies and practices, threatening to revoke federal
5:35
Speaker 2: funding and press criminal charges if they don't identify immediate
5:40
Speaker 2: initiatives they're taking to eliminate laws, policies, and practices that
5:45
Speaker 2: impede federal immigration enforcement. She set Tuesday as the deadline
5:50
Speaker 2: for their response. So far, there appeared to be no cities, counties,
5:56
Speaker 2: or states that complied with that deadline, and in fact,
6:00
Speaker 2: some cities like Boston, have been defiant. What do you
6:05
Speaker 2: think will happen in this standoff between the Trump administration
6:09
Speaker 2: and sanctuary cities.
6:11
Speaker 1: The issue with sanctuary cities and the Trump administration is
6:14
Speaker 1: going to depend on what specific method and what specific
6:19
Speaker 1: type of enforcement we're talking about here. If the only
6:23
Speaker 1: thing that the cities are being penalized for is for
6:27
Speaker 1: refusing to affirmatively cooperate with eyes, then those cities are
6:33
Speaker 1: at least currently under the current existing precedent in the
6:36
Speaker 1: courts of appeals knows that they aren't going to lose
6:40
Speaker 1: their federal funding just for that, because they're Supreme Court
6:44
Speaker 1: law that talks about anti commandeering, that says you can't
6:48
Speaker 1: force states and localities to enforce federal law. And that
6:53
Speaker 1: was within the context of criminal background checks back in
6:56
Speaker 1: the day, where they wanted cities and states to actually
7:00
Speaker 1: conduct background checks before people could sell guns, and there
7:03
Speaker 1: were local officials that said, we don't believe in that,
7:06
Speaker 1: we don't want to make those background checks, and the
7:08
Speaker 1: Supreme Court agreed in the Prince case, and so this
7:11
Speaker 1: has been held in the same concept of sanctuary cities,
7:15
Speaker 1: that the states and the localities don't have the duty
7:19
Speaker 1: to actually affirmatively cooperate with ice. Now, there is a
7:23
Speaker 1: issue that is still pending in the Supreme Court that
7:28
Speaker 1: they haven't fully decided yet, which is, even if that's
7:32
Speaker 1: not affirmative cooperation, is it information sharing? Meaning if the
7:39
Speaker 1: federal government says to a state, do you know when
7:42
Speaker 1: Joe Smith is going to be released from the tension?
7:45
Speaker 1: That if they don't give that information, perhaps they can
7:48
Speaker 1: be penalized for that, because that's just information sharing as
7:51
Speaker 1: opposed to affirmative cooperation. So that issue yet to be decided,
7:56
Speaker 1: and I think that issue will go to the Supreme
7:59
Speaker 1: Court and working to see what happens. Now. There are
8:02
Speaker 1: other issues, which is, are there states and localities that
8:06
Speaker 1: are actually assisting and quote unquote harboring or impeding the
8:11
Speaker 1: enforcement of immigration laws and in those areas, then that's
8:16
Speaker 1: where the Department of Justice is going to try to
8:18
Speaker 1: either get injunctive or elief to prevent them from doing that,
8:22
Speaker 1: or perhaps other sanctions with respect to doing that. And
8:26
Speaker 1: they're going to be working with the Congress to try
8:29
Speaker 1: to see if the Congress will pass laws that actually
8:32
Speaker 1: place congressional restrictions on some of this grant money for
8:37
Speaker 1: some of that type of behavior. But again, that's what's
8:41
Speaker 1: going to be needed in order for the states and
8:44
Speaker 1: localities to lose their funding, is there's going to need
8:48
Speaker 1: to be specific congressional provisions that say they will lose
8:52
Speaker 1: their funding. Those have to be tied because there's also
8:55
Speaker 1: the Obamacare Sabilious decision that says that these kinds of
8:59
Speaker 1: funding restricts have to be very very narrowly tied to
9:04
Speaker 1: what the provision is. Otherwise they're considered like extorting the states. Essentially,
9:10
Speaker 1: I think you're not allowed to do that, and so
9:12
Speaker 1: it has to be very very closely tied together. So
9:15
Speaker 1: things like transportation grants aren't going to work or housing
9:18
Speaker 1: grants or these other type of things. They have to
9:21
Speaker 1: be grants related to in some way immigration and immigration enforcement.
9:27
Speaker 1: But then the issue will be is it just the
9:30
Speaker 1: impeding that can be penalized or is it the lack
9:33
Speaker 1: of sharing of information? But there will not be unless
9:37
Speaker 1: the Supreme Court overturns its decision in prints an ability
9:41
Speaker 1: to sanction these states for just not affirmatively helping ICE
9:47
Speaker 1: or the Department of Homeland Security.
9:49
Speaker 2: So this week also twenty states and DC sued the
9:53
Speaker 2: Trump administration saying they're unlawfully requiring states to assist with
9:58
Speaker 2: federal immigration enforcement efforts in order to receive grants that
10:02
Speaker 2: fund resources for crime victims.
10:05
Speaker 1: Correct, this is all in the same mode in that
10:08
Speaker 1: those cases were very successful in the first Trump administration
10:11
Speaker 1: to say that those grants that were restricted on the
10:15
Speaker 1: basis of their law enforcement grants, and they're being restricted
10:19
Speaker 1: on the basis of unwillingness to cooperate on immigration enforcement.
10:22
Speaker 1: But that's not a basis to restrict the grant funding.
10:25
Speaker 1: That there has to be something more than that. And
10:29
Speaker 1: so number one, the states that to not qualify for
10:33
Speaker 1: the grant in some way but just not cooperating with
10:36
Speaker 1: ICE in terms of not affirmatively cooperating is not a
10:39
Speaker 1: basis again under the anti commandeering laws to deny them
10:43
Speaker 1: this money. But also again that these grants are not
10:46
Speaker 1: narrowly tailored for that purpose. And so again, these same
10:50
Speaker 1: lawsuits were filed at the first Trump administration. They were
10:53
Speaker 1: successful on behalf of the states. In the cities, they
10:56
Speaker 1: didn't get to the Supreme Court. We'll see what the
10:59
Speaker 1: Supreme Court decides to change anything, either by overruling the
11:03
Speaker 1: Prince case on anti commandeering or by saying, fine, the
11:07
Speaker 1: states and the cities don't have to affirmatively cooperate with ICE,
11:11
Speaker 1: but if I ask them for information that is readily
11:14
Speaker 1: in their position, they have to at least do that
11:16
Speaker 1: or they can lose their grand funding. So those are
11:19
Speaker 1: the possibilities of where all these cases are going to end.
11:22
Speaker 2: So on the ground, let's say the state isn't harboring
11:26
Speaker 2: undocumented immigrants, but they're just refusing to cooperate with Ice.
11:30
Speaker 2: How many more undocumented immigrants will ICE be able to
11:35
Speaker 2: arrest if the state did cooperate.
11:37
Speaker 1: I mean, it would be dramatic in terms of numbers,
11:40
Speaker 1: because it's a lot less resource intensive to go into
11:45
Speaker 1: a jail and take someone who's already handcuffed and place
11:49
Speaker 1: them into ICE custody than it is as you see
11:52
Speaker 1: on the street. Some of these operations, for whatever reason,
11:55
Speaker 1: take ten twenty agents, and you know, one could say,
11:59
Speaker 1: all it's for state, or I don't know what the
12:01
Speaker 1: reasons are that some of these operations are so resource intensive.
12:05
Speaker 1: But sometimes you see, like I said, ten to twenty
12:08
Speaker 1: agents getting one person. So from that perspective, if you
12:12
Speaker 1: had one or two agents that could take someone in
12:15
Speaker 1: a jail, as opposed to having a situation where again
12:20
Speaker 1: you need it to start grabbing people in either work
12:23
Speaker 1: flights or where they live or somewhere else, that would
12:27
Speaker 1: be freeing up of many more people to be arrested.
12:30
Speaker 1: And then the issue would just be, well, okay, how
12:33
Speaker 1: many spaces are there into detention facilities or how much
12:36
Speaker 1: room is there in the court system to actually finish
12:39
Speaker 1: these cases. But it actually would increase the number significantly,
12:44
Speaker 1: because again you wouldn't need so many agents to achieve
12:47
Speaker 1: a specific arrest or removal in a case where someone
12:50
Speaker 1: had been arrested or was coming out of prison, who
12:54
Speaker 1: was in the non citizen population?
12:56
Speaker 2: Coming up next, why it might be harder to get
12:59
Speaker 2: your citizen. This is bloomberg. In addition to cracking down
13:04
Speaker 2: on immigration, the Trump administration also seems to be cracking
13:09
Speaker 2: down on the pathways to citizenship. According to a recent
13:13
Speaker 2: policy memo, US citizenship and Immigration services officers must consider
13:19
Speaker 2: the positive attributes and contributions of immigrants seeking citizenship rather
13:25
Speaker 2: than just the absence of misconduct. Those positive attributes can
13:30
Speaker 2: include factors like community involvement, family caregiving, and educational attainment.
13:36
Speaker 2: I've been talking to immigration attorney Leon Fresco of hollanden Knight. So, Leon,
13:41
Speaker 2: what is this change about?
13:43
Speaker 1: This is very interesting. So this is for citizenship applications,
13:47
Speaker 1: and when someone applies for citizenship, that means they've basically
13:50
Speaker 1: done everything correctly and now they're applying for citizenship and
13:54
Speaker 1: there's a question in there, a consideration that is does
13:59
Speaker 1: the person have good moral character? And the interesting thing
14:03
Speaker 1: is that good moral character is actually defined in the
14:06
Speaker 1: statute and it has a negative definition, meaning it says
14:10
Speaker 1: that you have good moral character unless you have certain
14:15
Speaker 1: negative things. So the negative things are what make you
14:18
Speaker 1: not have good moral character, but absent those negative things,
14:22
Speaker 1: you have good moral character. And so what uscis is
14:26
Speaker 1: doing is it's going to actually test this definition a
14:29
Speaker 1: little bit and try to see if it can get
14:32
Speaker 1: it to a more extreme definition, which is to say,
14:36
Speaker 1: good moral character is not going to be something that
14:41
Speaker 1: is just an absence of negative factors, but it's going
14:46
Speaker 1: to also include something positive about your characteristic. Now, what's
14:53
Speaker 1: interesting is some of these things that they talk about,
14:56
Speaker 1: you know, these are in the eye of the beholder.
14:58
Speaker 1: If you have family, well, maybe if you have family,
15:01
Speaker 1: that's taking more resources. So why is it better that
15:03
Speaker 1: you have family. Maybe it's better that you don't have
15:06
Speaker 1: family and you're taking less resources. Some of these things
15:09
Speaker 1: are pretty subjective in terms of those things that they're
15:12
Speaker 1: looking at, and so from that perspective, I think that
15:17
Speaker 1: if that ends up getting challenged in the court of law,
15:19
Speaker 1: they're going to have a pretty tough time trying to
15:23
Speaker 1: say that these positive factors are necessary. Now, what may
15:28
Speaker 1: happen is in a case where there are some negative
15:30
Speaker 1: factors that don't actually lead to a denial, so to speak,
15:37
Speaker 1: because they can't legally. So for instance, you were arrested
15:40
Speaker 1: a bunch of times but never convicted. They may then
15:43
Speaker 1: try to say, okay, well, you have all these negative factors,
15:47
Speaker 1: so you need something positive to get you over the
15:51
Speaker 1: limit here. But again, I just think that because of
15:55
Speaker 1: the way the negative definition is written, I don't say
16:00
Speaker 1: I think that it's going to end up being something
16:03
Speaker 1: that they're going to be able to push too much
16:05
Speaker 1: further there. With regard to needing it. Now, there are
16:09
Speaker 1: some crimes where then it's in the discretion of USCIS
16:14
Speaker 1: to decide whether to give you the citizenship or not,
16:17
Speaker 1: and so there they may want the way if you
16:20
Speaker 1: have more positive factors, such as community service or family
16:24
Speaker 1: or other contributions that you've made in the United States.
16:27
Speaker 1: But again, I just think someone who's never been a criminal,
16:30
Speaker 1: who's never done anything wrong, who's done everything they're supposed
16:33
Speaker 1: to do, they're not going to now suddenly need to
16:35
Speaker 1: have thirty hours of community service in order to get
16:39
Speaker 1: a naturalization. I think if that's at it, the courts
16:42
Speaker 1: will overturn that.
16:44
Speaker 2: I was just going to say, if you're planning to
16:45
Speaker 2: apply for citizenship, start doing community service. The memo also
16:50
Speaker 2: says that other disqualifying actions could include behavior that is
16:54
Speaker 2: technically lawful but is inconsistent with civic responsibility within the community,
17:00
Speaker 2: like habitual traffic infractions. Do people often appeal when they're
17:04
Speaker 2: denied citizenship.
17:06
Speaker 1: Well, yes, if you are denied citizenship, the way it
17:08
Speaker 1: works is there's first an administrative appeal that you can take,
17:12
Speaker 1: which is, you know, I've actually won those cases, even
17:15
Speaker 1: though they're kind of tough because it's literally one person
17:18
Speaker 1: in the office reviewing the decision of another person in
17:21
Speaker 1: the office, and they're just these are colleagues that work together,
17:24
Speaker 1: and you don't necessarily know how likely you are to
17:27
Speaker 1: suddenly get somebody else to overturn what their colleague did.
17:31
Speaker 1: But that doesn't exist. And then if that's denied, you
17:34
Speaker 1: can go to a federal court where a district judge
17:37
Speaker 1: actually has the novo review and they just start from scratch.
17:40
Speaker 1: They don't look at anything that was done in the
17:43
Speaker 1: administrative thing, and they decide the citizenship case. And so
17:47
Speaker 1: it would be in that scenario where you would actually
17:52
Speaker 1: then test the legal definitions here of good moral character
17:56
Speaker 1: and depending those could work their way up to a
17:58
Speaker 1: court of appeals or a Supreme Court if decides wanted
18:02
Speaker 1: to keep fighting on the basis of that issue. But again,
18:06
Speaker 1: for instance, to say that a bunch of traffic offenses
18:10
Speaker 1: is going to lead to a sort of bad moral
18:13
Speaker 1: character finding is again probably stretching the statue beyond what
18:19
Speaker 1: it's able to accomplish. But will have to wait and see.
18:23
Speaker 2: So I found this very interesting. The budget bill that
18:26
Speaker 2: Congress approved set aside almost forty seven billion dollars for
18:30
Speaker 2: continued border wall construction and maintenance, and Christome, Homeland Security Secretary,
18:38
Speaker 2: said that President Trump has ordered that the border wall
18:42
Speaker 2: be painted black to make the metal hotter and deter migrants.
18:48
Speaker 2: This despite the fact that Trump this week's a congratulations
18:52
Speaker 2: Texas that July border statistics were in and it's the
18:56
Speaker 2: lowest number of border crossings in history. To paint the
19:00
Speaker 2: wall black, well, I mean.
19:03
Speaker 1: He gave the reason, which is that the third people
19:06
Speaker 1: from coming in, if they try to touch the wall,
19:08
Speaker 1: they'll be much otter, so they'll be more painful. But
19:11
Speaker 1: the question is what will that accomplish, And so you
19:13
Speaker 1: got to be very careful when you start actually saying
19:16
Speaker 1: that that's your intent, because there is state created danger,
19:20
Speaker 1: which says that if the government actually tries to lawfully
19:25
Speaker 1: create that dangerous condition by which you can be injured,
19:30
Speaker 1: you can sue the government for that. So, for instance,
19:32
Speaker 1: you know, if a male delivery person suddenly starts taking
19:36
Speaker 1: the mail and throwing it into your house with a
19:39
Speaker 1: brick on it or something, you could sue the government
19:42
Speaker 1: and say, hey, that's dangerous. This new practice of using
19:45
Speaker 1: a brick to attach the mail to to throw it
19:49
Speaker 1: is causing a lot of problems, and so you could
19:51
Speaker 1: sue under that. And so somebody is saying that they
19:54
Speaker 1: are trying to deliberately make something inflicting of harm. That
20:00
Speaker 1: does create a potential issue that the government needs to
20:03
Speaker 1: be sensitive to. Now, there are instances of people cutting
20:07
Speaker 1: holes through the fencing that was done, or trying to
20:10
Speaker 1: climb or trying to build tunnels under the defence, but
20:14
Speaker 1: most people who cross the border tried to look for
20:18
Speaker 1: some of the areas that didn't have fencing so they
20:20
Speaker 1: could cross through and just ask for asylum seeming they
20:23
Speaker 1: would see that someone was there. They would actually see
20:27
Speaker 1: a border patrol person that was there, and they would
20:29
Speaker 1: just walk to the border patrol agent and ask for asylum.
20:32
Speaker 1: At the moment, the Trump administration has said anyone who
20:35
Speaker 1: asks for asylum won't be allowed to do so, they'll
20:38
Speaker 1: just be sent back. That is currently still being challenged
20:42
Speaker 1: in the courts, and so it's unclear if a year
20:45
Speaker 1: from now there will still be able to be this
20:48
Speaker 1: ban where you literally just can't ask for asylum by
20:52
Speaker 1: crossing the border. We're in that temporary period where that's
20:55
Speaker 1: permitted because it's working their way through the courts, but
20:58
Speaker 1: I don't know that that will always be the case.
21:01
Speaker 1: If that is the case, then people won't be able
21:06
Speaker 1: to do that, and then they might actually be incentivized
21:08
Speaker 1: to the extent needed to touch the fence, either to
21:12
Speaker 1: cut it or to try to climb it. But at
21:15
Speaker 1: this point that's not really happening. And then we can
21:19
Speaker 1: also talk about sort of twenty second century now that
21:22
Speaker 1: we're in twenty twenty five. You know, people always talked
21:25
Speaker 1: about twenty first century, but you know, twenty second century issues.
21:29
Speaker 1: You have all of these drones and paragliding and everything else.
21:34
Speaker 1: Soon the idea of a fence is really not going
21:37
Speaker 1: to be an issue because you'll be able to use
21:39
Speaker 1: any device you want to sort of fly over this fence.
21:43
Speaker 1: And so I don't know long term, the forty billion
21:47
Speaker 1: or whatever that's being spent in the fence is probably
21:50
Speaker 1: not going to be able to keep up with modern
21:52
Speaker 1: technology in terms of all the devices people will be
21:55
Speaker 1: able to have to either fly or navigate above or
21:59
Speaker 1: around these. But again, that may not be for twenty
22:02
Speaker 1: twenty five, but it may be for twenty thirty at
22:04
Speaker 1: this point. Who knows.
22:06
Speaker 2: Yeah, Andnoam also said that more is going to be
22:09
Speaker 2: added to the wall as far as technology, camera, sensors,
22:13
Speaker 2: a water borne infrastructure, and they've been building about half
22:17
Speaker 2: a mile of barrier of wall every day. I mean
22:21
Speaker 2: with the Rio Grand, there is it even possible to
22:24
Speaker 2: have wall built across every inch of the border.
22:29
Speaker 1: There's a couple of issues. So some of the fencing
22:32
Speaker 1: at the moment is inside of Texas, meaning there are
22:37
Speaker 1: parts of Texas that are on the Mexico side of
22:40
Speaker 1: the border fence, even though they're on the US side
22:43
Speaker 1: of the Rio Grand. So you have Mexico, you have
22:45
Speaker 1: the Rio Grand, you have Texas. So you would want
22:49
Speaker 1: the fence to be right where the Rio Grand is,
22:52
Speaker 1: so that there isn't some parts of Texas that are
22:55
Speaker 1: on the Mexican side of the Rio Grand where the
22:58
Speaker 1: fence is, But you do have some of that, and
23:00
Speaker 1: the question is what happens when people reach there. And
23:04
Speaker 1: again at the moment, people are being turned back who
23:08
Speaker 1: reach those places because they're not being allowed to apply
23:10
Speaker 1: for asylum. During the Biden administration, they were being allowed
23:13
Speaker 1: to apply for asylum except during the last six months
23:16
Speaker 1: of the administration when these asylum bands started. So they
23:20
Speaker 1: started under Biden and they were continued and extended under
23:24
Speaker 1: the Trump administration and made even stronger. And so from
23:28
Speaker 1: that perspective, the question is going to be what happens.
23:33
Speaker 1: I mean, there's also another part of Arizona that is
23:35
Speaker 1: an Indian reservation that belongs to the tajonah Otum tribe
23:39
Speaker 1: that they would need to give you the content to
23:41
Speaker 1: build fence on their Indian reservation, and they hadn't been
23:45
Speaker 1: willing to do that either. So those gaps exist, and
23:50
Speaker 1: I don't know how they're going to solve that problem,
23:52
Speaker 1: but they will theoretically be able to put sense if
23:56
Speaker 1: they're willing to spend enough money on all the other
23:59
Speaker 1: parts of the two thousand mile border between Mexico and
24:03
Speaker 1: the United States.
24:04
Speaker 2: I would think that forty seven billion dollars will go
24:08
Speaker 2: a long way, but you never know. Thanks so much, Leon.
24:12
Speaker 2: That's Leon Fresco of Honda Knight. President Trump has made
24:16
Speaker 2: his dislike for New York Attorney General Letitia James clear
24:21
Speaker 2: over the years, including a few months ago in the
24:24
Speaker 2: Oval office.
24:25
Speaker 3: She's a disaster for New York. She's a horrible, horrible
24:29
Speaker 3: human being, and I think she's a total crook. There's
24:31
Speaker 3: no question about it. But that's just my opinion. Pam's
24:34
Speaker 3: gonna have to do what she wants. She's a very
24:35
Speaker 3: bad person. She's a very bad person who campaigned solely
24:40
Speaker 3: on I'm gonna get Donald Trump over and over again.
24:44
Speaker 3: She's a sick person.
24:45
Speaker 2: Well, today, Trump won a victory over James when a
24:50
Speaker 2: New York appeals court struck down the nearly half a
24:53
Speaker 2: billion dollar front penalty against him in the civil case
24:57
Speaker 2: brought by James. The split five member court did uphold
25:01
Speaker 2: the ruling that Trump and his two eldest sons perpetrated
25:05
Speaker 2: a decade's long business fraud by inflating the value of
25:09
Speaker 2: assets to get favorable terms on loans, but the court
25:13
Speaker 2: found that the amount of the fine was unconstitutionally excessive,
25:18
Speaker 2: joining me is constitutional law. Professor Harold Krent of the
25:21
Speaker 2: Chicago Kent College of Law hell. There were concurrences, concurrences
25:27
Speaker 2: in part sense descents in part. The judges seemed to
25:31
Speaker 2: disagree on more than they agreed on.
25:34
Speaker 4: The court was incredibly split, and it's hard to discern
25:38
Speaker 4: exactly what the dules are going forward in a three
25:41
Speaker 4: hundred and three page decision, But the essence is that
25:45
Speaker 4: the fraud determination has been upheld, but that the remedy,
25:50
Speaker 4: the disgorgement remedies of five hundred million dollars were excessive
25:54
Speaker 4: under the constitution, the court held, and so the size
25:58
Speaker 4: of the fine recalculated.
26:02
Speaker 2: So would that be done by an appeal?
26:05
Speaker 4: Ultimately would be done by the trial court, But that
26:08
Speaker 4: won't happen immediately because there's so many other legal issues
26:11
Speaker 4: that went into it. For instance, what are the number
26:14
Speaker 4: of cases that can be consideratified That was disputed in
26:18
Speaker 4: the opinion in terms of the inflated values of the
26:21
Speaker 4: properties and in terms of which ones could be considered
26:25
Speaker 4: there's disagreement on. So it's such a fractured opinion that
26:28
Speaker 4: the next logical step for both parties would be to
26:31
Speaker 4: go to the highest core of the New York the
26:33
Speaker 4: Court of Appeals, for determinations of remaining legal issues, and
26:37
Speaker 4: then ultimately the lower court would then make a new
26:41
Speaker 4: determination of what kind of fine to impose.
26:45
Speaker 2: And the Age has already said that she's going to
26:48
Speaker 2: appeal this decision to the New York Court of Appeals.
26:52
Speaker 2: Will you explain why the court found that the fine
26:56
Speaker 2: was excessive?
26:58
Speaker 4: In essence, to simplify it, that the lower court didn't
27:01
Speaker 4: make a tailored opinion about how much the inflation of
27:05
Speaker 4: the property values actually resulted in ill gotten games. In short,
27:09
Speaker 4: the Pelt Court stated that just because there was an
27:14
Speaker 4: inflated valuation doesn't show the extent to which the Trump
27:19
Speaker 4: forces were able to benefit financially from that inflation. Without
27:23
Speaker 4: that kind of tailored proportional remedy, the aggregate saw of
27:28
Speaker 4: three hundred and fift million was simply accessive.
27:31
Speaker 2: I mean, what does it take for a court to
27:33
Speaker 2: find a fine violates the Eighth Amendment.
27:37
Speaker 4: Under the sense of fines clause that the Supreme War
27:39
Speaker 4: is held it It has to be some kind of proportionality.
27:41
Speaker 4: So it's a kind of loose general test that the
27:45
Speaker 4: find and post had to be some way proportional to
27:48
Speaker 4: the harm created, and then you look at other kinds
27:51
Speaker 4: of finds cases in the past to determine whether that
27:55
Speaker 4: metric has been breached or not. And I think the
27:58
Speaker 4: court here and did a good faith assessment looking at
28:01
Speaker 4: the kind of damage that was created by the fraud
28:05
Speaker 4: and said that whatever it was, it didn't come close
28:08
Speaker 4: to reaching the three hundred and fifty million of steps.
28:11
Speaker 2: Normally appeals are decided in weeks or even a few months.
28:16
Speaker 2: This took nearly eleven months for the Appellate Division to
28:19
Speaker 2: reach this decision. Looking at the three hundred pages, does
28:23
Speaker 2: that indicate why it took so long?
28:26
Speaker 4: The court was badly split. I mean you can see
28:29
Speaker 4: that from the type of language that was used in
28:31
Speaker 4: the opinions and from the disagreements and themselves, and so
28:35
Speaker 4: I think the court was in a good faith measure
28:38
Speaker 4: trying to get kind of a uniform approach, but it
28:42
Speaker 4: just broke down. They disagreed on numbers of issues, and
28:45
Speaker 4: so it really would be impossible for the lower court
28:48
Speaker 4: to put the pieces back together, which is why I
28:51
Speaker 4: think both parties are in better position if this goes
28:54
Speaker 4: to the highest Court of New York two resolve the
28:58
Speaker 4: many legal reaments that still exist.
29:01
Speaker 2: So would you say a huge victory for Trump and
29:03
Speaker 2: a huge loss for the ag Letitia James.
29:07
Speaker 4: I would think it's huge, but I think it's substantial.
29:10
Speaker 4: Certainly puts off any kind of requirement to pay the fine.
29:15
Speaker 4: I mean, there's so many other legal issues to on
29:16
Speaker 4: earth that the day of reckoning is not going to
29:19
Speaker 4: come for a long time. But at the bottom there's
29:21
Speaker 4: still a finding of fraud and that has not been displaced.
29:25
Speaker 2: Does it complicate things at all that the Justice Department
29:30
Speaker 2: is investigating Letitia James for civil rights violations for bringing
29:37
Speaker 2: this suit against Trump? Or is that separate?
29:40
Speaker 4: I think it's separate unless the investigation casts a chill
29:44
Speaker 4: or a pall upon the Attorney General's office, and that's
29:47
Speaker 4: something that obviously the Trump administration would like to happen.
29:50
Speaker 4: But I don't think they're directly linked.
29:52
Speaker 2: Let's turn out to this ruling by the Fifth Circuit,
29:55
Speaker 2: that court order is freezing unfair labor practice cases against
29:59
Speaker 2: Space and two other companies can remain in place while
30:04
Speaker 2: they litigate their constitutional challenges to the National Labor Relations Board.
30:10
Speaker 4: So this is a typical challenge to a functioning of
30:14
Speaker 4: the National Labor Relations Board under the National Labor Relations Act.
30:18
Speaker 4: Under the Act, the Board is supposed to determine whether
30:21
Speaker 4: or not there is an unfair labor practice committed by
30:24
Speaker 4: the union or by the employer. In this case the employer,
30:27
Speaker 4: of course, it is Elon musk space Ax and any
30:30
Speaker 4: unfairlyre practices can span from the questions of not bargaining
30:34
Speaker 4: in good faith to firing somebody without cause and so
30:38
Speaker 4: forth and so on. So in this case, after an
30:40
Speaker 4: unfair labor practice was determined, there was a challenge to
30:44
Speaker 4: the constitutionality of the National Labor Relations Board in two respects.
30:50
Speaker 4: First that the members, because each member was protected from
30:54
Speaker 4: app will removal, that they were unconstitously situated. And secondly
30:59
Speaker 4: that the Ministry of Law judge or ALJ, who was
31:02
Speaker 4: assigned to hear the unfair labor practice was also situated
31:07
Speaker 4: unconstitutionally because the aljs were protected from at will dismissal.
31:13
Speaker 4: So the court had to look at first of wall
31:15
Speaker 4: where they had jurisdiction, and then whether these two constitutional
31:20
Speaker 4: challenges were appropriate respect to jurisdiction. I think the Court
31:24
Speaker 4: held correctly that under a recent United States Court president
31:28
Speaker 4: structural challenges to agencies could interrupt agency proceedings and go
31:33
Speaker 4: to court and get a court take on these structural challenges.
31:37
Speaker 4: And this is very similar to the structural challenges that
31:40
Speaker 4: the Supreme Court held could go on in a case
31:43
Speaker 4: called Axon versus FTC. So I think the Court was
31:46
Speaker 4: well positioned to make that judgment with respect to the aljs.
31:50
Speaker 4: The Court held because the aljs were protected from at
31:54
Speaker 4: will removal and because they're superiors and all be members
31:58
Speaker 4: themselves were protected from dismissal, that the two layers of
32:02
Speaker 4: insulation from presidential removal authority was excessive under Article two
32:07
Speaker 4: of the Constitution. But it was an easy decision for
32:10
Speaker 4: the Court because the Court had previously held that in
32:12
Speaker 4: a case called Jocracy, which went to the Supreme Court,
32:15
Speaker 4: but the Supreme Court ignored that issue. There was binding
32:19
Speaker 4: Fifth Circuit President that said that the two layers of
32:22
Speaker 4: insulation from the presidence removal authority and that would be
32:25
Speaker 4: an unconstitutional structure, So that decision wasn't surprising. The more
32:31
Speaker 4: important ruling, which was surprising is that the NLIB itself
32:37
Speaker 4: was structured unconstitutionally, and to make that decision, the Court
32:42
Speaker 4: said that what the Supreme Court has signaled, which is fair,
32:46
Speaker 4: is that anything that looks like the Federal Trade Commission,
32:51
Speaker 4: whose members are protected from that role dismissal, and the
32:55
Speaker 4: Supreme Court and Humphrey's Executor had given its constitutional stample
32:59
Speaker 4: of approval to it, that anything that looks like the
33:02
Speaker 4: closely like the FTC is constitutional and those members can
33:06
Speaker 4: be protected from that real removal authority, but that anything
33:11
Speaker 4: that doesn't look exactly like the FTC model would be
33:14
Speaker 4: subject to independent constitutional scrutiny. And the Court said that
33:19
Speaker 4: there were several significant enough distinctions with respect to the
33:25
Speaker 4: structure of the NLRB as opposed to the FTC.
33:29
Speaker 2: How much is this about the Humphreys Executor case the
33:34
Speaker 2: ninety year old president that supports the restrictions Congress imposed
33:40
Speaker 2: on the president's power to dismiss independent agency officials, a
33:45
Speaker 2: decision that conservatives have long wanted to get reversed.
33:51
Speaker 4: And the Court's view is that the Supreme Court has
33:54
Speaker 4: signaled that maybe Humphy's executive isn't going to be overturned,
33:59
Speaker 4: almost everything else will be in terms of ensuring that
34:03
Speaker 4: the president has removal authority over all officers in the
34:07
Speaker 4: United States, and the outside of this is that the
34:10
Speaker 4: Supreme Court's going to have to weigh end and make
34:12
Speaker 4: a call.
34:13
Speaker 2: That was my next question. The Fifth Circuit has often
34:16
Speaker 2: been as far as conservative opinions ahead of the Supreme Court,
34:20
Speaker 2: and the Supreme Court has in the last couple of
34:23
Speaker 2: terms cut back. What this Fifth Circuit has done. Is
34:26
Speaker 2: this an instance where the Fifth Circuit again is out
34:30
Speaker 2: ahead of the Supreme Court.
34:32
Speaker 4: Well, the Fifth Circuit is forcing the Supreme Court's hand
34:34
Speaker 4: in the shadow talcket a case in President Trump's discharge
34:38
Speaker 4: of an MLRB member, the Court signaled that it may
34:42
Speaker 4: well be on the merit that the MLRB is unconstitutionally structured.
34:47
Speaker 4: It may come down to not only saying that the
34:51
Speaker 4: m larb's on constitution structure, but may reverse itself from
34:54
Speaker 4: Humphrey executor as well. So in this case, I think
34:58
Speaker 4: the Fifth Circuit's not really ahead of the Supreme Court.
35:01
Speaker 4: It's reading the tuts from the Supreme Court, which means
35:04
Speaker 4: that the Supreme Court is going to I only have
35:06
Speaker 4: to make that decision as to whether some set or
35:09
Speaker 4: all agencies in the United States in the executive branch
35:14
Speaker 4: that their heads have to be subject to at will removal.
35:17
Speaker 4: And that's the theory of the unitary executive that the Supreme
35:20
Speaker 4: Court has espoused.
35:22
Speaker 2: Does the NLRB even want to appeal this to the
35:25
Speaker 2: Supreme Court? I mean, this decision would only affect the
35:28
Speaker 2: Fifth Circuit, right.
35:31
Speaker 4: I think the NLRB does want to because I think
35:35
Speaker 4: that the Sister General's Office Department Justice want the Supreme
35:39
Speaker 4: Court to take up this case in order to make
35:44
Speaker 4: a determination once or for all that all executive branch
35:49
Speaker 4: agencies have to be headed by official subject to the
35:52
Speaker 4: president's plenarymove authority. So in this case, the NLRB is
35:58
Speaker 4: that the members who are left are likely going to
35:59
Speaker 4: add as the best of the Trump administration and to
36:04
Speaker 4: get a friendly hearing. And what they should do in
36:06
Speaker 4: the Supreme Court, and what they should have done in
36:08
Speaker 4: the Courts of Appeals, is to appoint somebody to argue
36:13
Speaker 4: the other side, because otherwise you have a musk organization
36:17
Speaker 4: against the Trump administration. But the Trump administration agrees with
36:22
Speaker 4: the musk organization in this case, and so to have
36:25
Speaker 4: any kind of fair adjudication, the court should follow its
36:29
Speaker 4: practice which it has followed in the past from time
36:32
Speaker 4: to time of appointing somebody to uphold the position that's
36:38
Speaker 4: not going to be represented directly in court, namely that
36:42
Speaker 4: it is perfectly fine for Congress to structure agencies to
36:46
Speaker 4: create some modicum of independence from presidential control.
36:51
Speaker 2: Humphrey's executor does seem to be on the chopping block,
36:55
Speaker 2: thanks so much. Hal be'st Professor Harrold Krent other Chicago,
36:58
Speaker 2: Kent College of Life. And that's it for this edition
37:01
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37:04
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37:07
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37:12
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