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Immigration Issues & A Reality Show for Citizenship · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 2: President Trump has been complaining about the legal protections given
0:13
Speaker 2: to alleged Venezuelan gang members to prevent their quick deportations.
0:18
Speaker 3: We're getting them out, and a judge can't say no,
0:22
Speaker 3: you have to have a trial. That's the trial is
0:25
Speaker 3: going to take two years, and we're going to have
0:28
Speaker 3: a very We're going to have a very dangerous country
0:30
Speaker 3: if we're not allowed to do what we're entitled to do.
0:33
Speaker 1: Well.
0:33
Speaker 2: On Friday, the administration lost its bid at the Supreme
0:37
Speaker 2: Court to quickly deport about one hundred and seventy six
0:40
Speaker 2: alleged Venezuelan gang members to a salvador In prison using
0:44
Speaker 2: the seventeen ninety eight Alien Enemies Act. But it got
0:48
Speaker 2: to win at the Supreme Court today, when the Justice
0:51
Speaker 2: has allowed the administration to end legal protections for three
0:55
Speaker 2: hundred and fifty thousand Venezuelans, stripping them of the right
0:59
Speaker 2: to temporarily live and work in the US and opening
1:02
Speaker 2: many of them to immediate deportations. The Justices lifted a
1:07
Speaker 2: federal court order that had said the Venezuelans could keep
1:10
Speaker 2: their temporary protected status while a legal fight continues. Joining
1:15
Speaker 2: me is immigration law expert Leon Fresco, a partnered Holland
1:19
Speaker 2: and Knight. Leon first explained, and I know you've explained
1:23
Speaker 2: this many times before, but first explain what temporary protected
1:26
Speaker 2: status is.
1:28
Speaker 1: Well. Temporary protected status in general is permitted by a
1:33
Speaker 1: statute that is enacted by Congress. And what that statue
1:36
Speaker 1: does is it allows the president, whoever the president is
1:39
Speaker 1: at any given time, to create a class of people that,
1:44
Speaker 1: because of either a natural disaster or some political turmoil
1:49
Speaker 1: or some environmental problem something that it would be considered
1:55
Speaker 1: very dangerous to them to deport them back to their country.
2:00
Speaker 1: And so actually, at the end of the Trump presidency
2:03
Speaker 1: in twenty twenty, Trump had declared something similar called deferred
2:07
Speaker 1: enforced departure for Venezuelans. But what Biden did was he
2:12
Speaker 1: changed that to temporary protective status, and he said that
2:16
Speaker 1: about three hundred and fifty thousand Venezuelans could stay in
2:20
Speaker 1: the country using this temporary protected status under the theory
2:24
Speaker 1: that deporting them back to Venezuela would be deporting them
2:27
Speaker 1: back to a place where the government was very oppressive,
2:31
Speaker 1: and most of these people would probably qualify for asylum anyway,
2:35
Speaker 1: and so rather than clog the courts with those asylum cases,
2:38
Speaker 1: it's just simpler to have temporary protective status allow them
2:42
Speaker 1: to stay legally and work legally while they're in the
2:45
Speaker 1: United States. Well, what the Trump administration did when it
2:49
Speaker 1: came back in twenty twenty five now is it said
2:53
Speaker 1: we're going to cancel those three hundred and fifty thousand
2:56
Speaker 1: Venezuelans temporary protective status. But what's interesting about that is
3:01
Speaker 1: it didn't just say it's not going to renew it.
3:04
Speaker 1: It actually said, if you have it right this minute,
3:08
Speaker 1: we're canceling it, which people were shocked because they had
3:10
Speaker 1: at least thought they had a reliance interest until the
3:13
Speaker 1: time that the temporary protected status would expire, which for
3:18
Speaker 1: some people would have been in June and some people
3:20
Speaker 1: would have been in October.
3:22
Speaker 2: I mean, it sounds like temporary protected status is something
3:27
Speaker 2: within the administration's bailliwick.
3:31
Speaker 1: Correct, So the administration the president has the authority to
3:35
Speaker 1: extend TPS in eighteen months increments under Congress, or not
3:39
Speaker 1: to extend it. But what's interesting is in the prior
3:42
Speaker 1: Trump administration, there had been temporary protected status given to
3:47
Speaker 1: people from Central America, and when the Trump administration tried
3:52
Speaker 1: to end it, the lower courts actually gave injunctions, and
3:58
Speaker 1: those individuals succeeded for four years during the Trump presidency
4:03
Speaker 1: to not have their temporary protective status rescinded because they
4:07
Speaker 1: had gotten rulings that there were equal protection violations in
4:11
Speaker 1: the way that the temporary protective status had been rescinded,
4:15
Speaker 1: because the idea was that Trump was doing this for
4:18
Speaker 1: some sort of animus or discriminatory reason and not for
4:23
Speaker 1: real judgments on whether those countries had actually changed or not.
4:27
Speaker 1: And so interestingly enough, because that strategy worked in the
4:31
Speaker 1: first Trump administration to sort of run out the clock,
4:34
Speaker 1: then this new attempt in this second administration to do
4:39
Speaker 1: the same thing to stop temporary protective status. The individuals
4:43
Speaker 1: sued again, saying the same arguments, and they succeeded again
4:48
Speaker 1: in getting an injunction in the lower court. But this
4:51
Speaker 1: time the Supreme Court today stayed the injunction. So what
4:55
Speaker 1: they said was the injunction does not apply to just
4:59
Speaker 1: the one issue, so the issue of renewal, meaning that
5:04
Speaker 1: now there's not going to be an injunction like there
5:07
Speaker 1: was in the first Trumpet administration. That keeps people on
5:12
Speaker 1: temporary protected status after it expires. Now, they do say
5:17
Speaker 1: that this order doesn't apply to the issues of whether
5:21
Speaker 1: you could be ejected from the status earlier, whether your
5:24
Speaker 1: work authorization could be taken away early. But what the
5:28
Speaker 1: ruling today says is when your status expires, the Supreme
5:33
Speaker 1: Court has no order in place giving you your status back,
5:37
Speaker 1: and so those are going to have to be litigated
5:40
Speaker 1: in the lower court. But in the meantime, there is
5:43
Speaker 1: no injunction in place preventing people's temporary protected status from
5:49
Speaker 1: expiring on the day it was supposed to expire in
5:52
Speaker 1: the first place.
5:53
Speaker 2: So, just to be clear, the order today only applies
5:57
Speaker 2: to renewal of temporary prient checked IT status. In other words,
6:02
Speaker 2: it allows the administration not to renew TPS status.
6:06
Speaker 1: So the order from today only pertains to once the
6:11
Speaker 1: normal day it was going to expire comes, then it
6:15
Speaker 1: is allowed to expire. There is now no injunction as
6:18
Speaker 1: of today requiring it to be renewed, and so that's
6:23
Speaker 1: what's been changed is there was an injunction saying you
6:26
Speaker 1: just can't end this period until the court gets back
6:29
Speaker 1: to you, and now that's not true. It can be ended,
6:33
Speaker 1: but it has to be ended as of the date
6:35
Speaker 1: that it was supposed to end originally, rather than an
6:39
Speaker 1: earlier expedited date given by President Trump.
6:42
Speaker 2: So how big a victory is this for the Trump administration?
6:46
Speaker 1: Obviously, what they're trying to do is flood the zone
6:49
Speaker 1: and get as many people to be subject to removal
6:52
Speaker 1: early as possible. So from that standpoint, if your concern is,
6:56
Speaker 1: I want as many people subject to removal as soon
6:59
Speaker 1: as possible, And it is a very big victory for
7:01
Speaker 1: the Trump administration to say that they don't have to
7:04
Speaker 1: renew the temporary protected status because that is a significant
7:10
Speaker 1: change from the first Trump administration. In the first Trump administration,
7:14
Speaker 1: the clock ran out from their attempt to end temporary
7:19
Speaker 1: protected status for people, and so people were able to
7:23
Speaker 1: maintain their temporary protected status during the four entire years
7:27
Speaker 1: of the Trump administration, plus obviously the Biden administration. And
7:31
Speaker 1: so now the Trump administration in year one gets a
7:35
Speaker 1: favorable ruling from the Supreme Court that says that that's
7:38
Speaker 1: not going to happen this time around.
7:40
Speaker 2: What happens now because the Venezuelans that have temporary protected
7:44
Speaker 2: status when it ends, can they be deported or will
7:49
Speaker 2: they apply for asylum.
7:51
Speaker 1: So what will happen is anybody who is subject to
7:55
Speaker 1: deportation is most likely going to apply for asylum. They
7:59
Speaker 1: don't have to apply for asylum, but most likely they
8:03
Speaker 1: are going to apply for asylum. And from Venezuela, you
8:06
Speaker 1: already have a prime of facia eligibility for asylum in
8:11
Speaker 1: the sense that you have an oppressive government that commits
8:14
Speaker 1: acts of oppression against political enemies. So all of those
8:18
Speaker 1: cases are going to have to be heard on an
8:19
Speaker 1: individual basis, unless the Trump administration can succeed in this
8:25
Speaker 1: other case that it's working on saying that Venezuelans or
8:28
Speaker 1: some class of them, can be deported en mass because
8:31
Speaker 1: they're alien enemies of the United States. But other than that,
8:35
Speaker 1: every Venezuelan is probably going to have to go through
8:38
Speaker 1: asylum proceedings, which, again, even if it's just these three
8:41
Speaker 1: hundred and fifty thousand, will be two three years of
8:45
Speaker 1: court time just for this one group of people.
8:48
Speaker 2: How has temporary projected status worked in the past, Do
8:53
Speaker 2: people actually go back to their home countries?
8:56
Speaker 1: Well, this is problematic because this is where the Trump
9:00
Speaker 1: administration has its highest level of currency. Is there's actually
9:07
Speaker 1: almost never been an instance other than very small, very
9:12
Speaker 1: targeted instances of less than one hundred people, where a
9:15
Speaker 1: group of people has been given temporary protective status and
9:18
Speaker 1: it's actually been revoked. We have people in America who've
9:22
Speaker 1: had temporary protective status since nineteen ninety six and their
9:27
Speaker 1: status just keeps getting renewed every eighteen months. And so
9:31
Speaker 1: what the Trump administration has said is at some point
9:34
Speaker 1: this has to end because it makes a mockery of
9:38
Speaker 1: the statute temporary protected status. But what happens is once
9:42
Speaker 1: you make someone legal and you give them a work permit,
9:45
Speaker 1: and you give them legal status and they have kids
9:48
Speaker 1: in the United States, every moment that they're here is
9:52
Speaker 1: an extended moment of currency building. And you start getting
9:56
Speaker 1: people like these people who've been here since nineteen ninety
9:58
Speaker 1: six who are now going to to lose their temporary
10:01
Speaker 1: protective status, who will say, hey, I've been here for
10:04
Speaker 1: over thirty years and now you're trying to deport me
10:07
Speaker 1: just now. And this becomes a big problem for both sides.
10:12
Speaker 1: And so that's why it's understandable that people who've been
10:16
Speaker 1: here less time, but for some of the temporary protective
10:19
Speaker 1: status people who've been here thirty years. Yes, they probably
10:22
Speaker 1: shouldn't have had temporary protective status for thirty years, but
10:26
Speaker 1: the truth is they've had it now, and so the
10:28
Speaker 1: question is what are you going to do with those people.
10:30
Speaker 2: They're also moving to revoke temporary protected status for Haitians, Cubans,
10:35
Speaker 2: and Nicaragua.
10:36
Speaker 1: Everybody, yes, other than South Sudan, which they gave a
10:41
Speaker 1: sort of neutral six month extension. Everyone else. They're moving
10:46
Speaker 1: so far to say that the conditions have improved in
10:49
Speaker 1: all of these countries, no matter how bad others might
10:52
Speaker 1: argue theoretically that they are. The Trump administration has said, no,
10:56
Speaker 1: the conditions are good enough to warrant deportations to these places,
11:00
Speaker 1: and so yes, the temporary protective statuses are being revoked
11:04
Speaker 1: from everybody else who has them, and so the idea
11:07
Speaker 1: is those individuals will be in undocumented status. And then
11:11
Speaker 1: the question becomes, well, what happens to the next? What
11:14
Speaker 1: happens to the next is either they leave on their
11:17
Speaker 1: own or somebody comes and places them in deportation proceedings.
11:21
Speaker 1: And if that happens, then what happens. Does these people
11:23
Speaker 1: apply for asylum or do they do something else?
11:28
Speaker 2: Coming up next on the Bloomberg Law Show, the Trump
11:30
Speaker 2: Administration's Friday defeat at the Supreme Court, and are they
11:35
Speaker 2: really talking about a reality show for undocumented immigrants you're
11:40
Speaker 2: listening to Bloomberg. The Trump administration had a victory today
11:45
Speaker 2: from the Supreme Court, but a defeat on Friday by
11:49
Speaker 2: a vote of seven to two. The court blocked the
11:51
Speaker 2: administration from deporting about one hundred and seventy six Venezuelans
11:56
Speaker 2: to a Salvadorian prison. Fault in the government for giving
11:59
Speaker 2: the men in adequate notice and failing to explain how
12:03
Speaker 2: they could contest deportation. I've been talking to immigration law
12:07
Speaker 2: expert le On Fresco, a partner at Hollanden Knight. Leon
12:10
Speaker 2: tell us why the Supreme Court said the Trump administration
12:14
Speaker 2: couldn't deport this group of alleged Venezuelan gang members.
12:18
Speaker 1: Well, let's start with the legal issue at play. There's
12:20
Speaker 1: a law, the Alien Enemies Act from the seventeen hundreds,
12:24
Speaker 1: which says that if you are put into this group
12:27
Speaker 1: of people who are alien enemies by the president, you
12:30
Speaker 1: can be removed without any due process. That's what the
12:34
Speaker 1: statute says. And the question is what does that really mean,
12:38
Speaker 1: because it gives a step of determining whether you are
12:42
Speaker 1: subject to the statue. You know, So the Trump administration says,
12:46
Speaker 1: we want to be able to deport these Venezuelan gang
12:48
Speaker 1: members from Trend, de Aragua. We want to be able
12:52
Speaker 1: to do that without having to have individual trials for
12:54
Speaker 1: every one of them. But that skips the step of saying, well,
12:57
Speaker 1: what if I'm not one of these people, either because
13:00
Speaker 1: I'm Venezuelan but I'm not in the gang, or I'm
13:03
Speaker 1: not even Venezuelan in the first place and you just
13:06
Speaker 1: got the wrong person, or I'm a US citizen, Where
13:09
Speaker 1: do I get to actually make this claim? And so
13:12
Speaker 1: first the Supreme Court said, well, you will make this
13:15
Speaker 1: claim in a habeas case. That was the first Supreme
13:18
Speaker 1: Court decision that came out a month ago that said
13:21
Speaker 1: you have to file a habeas corpus and the government
13:23
Speaker 1: has to give you notice and an opportunity to do that.
13:27
Speaker 1: And then there's a second question, which the courts have
13:31
Speaker 1: gone in two different directions on, which is can you
13:35
Speaker 1: even use the Alien Enemies Act for this type of situation?
13:40
Speaker 1: Because does this Venezuelan gang count as an invading force
13:45
Speaker 1: such that you can actually use the Alien Enemies Act
13:48
Speaker 1: to deport people, or is this just immigration, it's not
13:51
Speaker 1: an invading force coming from Venezuela with the approval of
13:56
Speaker 1: the Venezuelan government to invade the United States. Because that's
14:00
Speaker 1: the threshold that you have to meet. And so the
14:04
Speaker 1: Supreme Court said, look, you got to give people notice
14:06
Speaker 1: to make these arguments. The government came back into lower
14:09
Speaker 1: courts and there were arguments about, well, how long does
14:12
Speaker 1: the government have to let you file your habeas? Is
14:15
Speaker 1: it twenty four hours, is it four hours? Is it
14:18
Speaker 1: forty eight hours? And what the Supreme Court basically said, finally,
14:23
Speaker 1: because it was I think concerned about a situation where
14:29
Speaker 1: people were not going to be given enough notice to
14:31
Speaker 1: file habeas corpus actions in these cases. It said, look,
14:35
Speaker 1: we're saying all of these Venezuelan Alien Enemies Act cases
14:40
Speaker 1: until they can get up to this court and we
14:43
Speaker 1: can decide these two issues. The Alien enemies is it
14:46
Speaker 1: even applicable here? And in specific cases are people subject
14:51
Speaker 1: to it even if it is applicable, And the issue
14:54
Speaker 1: of what is a proper amount of notice to give
14:56
Speaker 1: in a particular case. So the Court said In the meantime,
15:00
Speaker 1: we're just putting this injunction in and nobody's going to
15:03
Speaker 1: be able to be deported under this Alien Enemies Act
15:06
Speaker 1: until we can find so. It tould the lower courts
15:09
Speaker 1: get to it, move, move, move quickly, get us these cases,
15:13
Speaker 1: and then we will finally decide these larger issues.
15:17
Speaker 2: And they mentioned a couple of times that the stakes
15:20
Speaker 2: were high, basically because of the case of Kilmar Abrigo Garcia,
15:26
Speaker 2: who the government says it can't return. I don't know
15:28
Speaker 2: where that case is at this point.
15:30
Speaker 1: Well, correct, the problem is there. The irreparable harm argument
15:35
Speaker 1: really sort of became nuclear, because if the government is
15:40
Speaker 1: going to say that once it deports somebody, it's not
15:43
Speaker 1: going to bring them back, then you raise the stakes
15:47
Speaker 1: to a level that makes it impossible to say there's
15:50
Speaker 1: not going to be a reparable arm. And so this
15:53
Speaker 1: might be a situation where again the litigating posture in
15:56
Speaker 1: one case came back to the government's credit here, whereas
16:01
Speaker 1: that had just done the one time return, then it
16:05
Speaker 1: might have won this case. And so these things are
16:08
Speaker 1: always operating in a back and forth discussion. Nothing ever
16:12
Speaker 1: happens in a vacuum. And so now the government has
16:16
Speaker 1: to understand that if it's going to make the arguments
16:19
Speaker 1: I want to deport someone it's never going to bring
16:21
Speaker 1: them back, then that is irreparable arm by its nature.
16:25
Speaker 1: Because you can bring someone back, then maybe you can
16:27
Speaker 1: argue there's no irreparable arm. But if you're saying you're
16:30
Speaker 1: never going to bring someone back, then that is by
16:33
Speaker 1: the definition irreparable arm. We are in that situation now
16:37
Speaker 1: where all of these cases have been stated, and with
16:39
Speaker 1: regards to Brego Garcia, what you have is a situation
16:42
Speaker 1: where the district judge in Maryland is sort of getting
16:45
Speaker 1: back into this case now, and even though they're trying
16:48
Speaker 1: to theoretically work something out, you have administration officials still
16:52
Speaker 1: saying to the Congress that Abrego Garcia is never coming back.
16:57
Speaker 1: And so now the district judge in Maryland is really
17:01
Speaker 1: starting to lose her patients, and she's trying to figure
17:04
Speaker 1: out again back into this adjudicating posture, who ordered what, when, where,
17:09
Speaker 1: and why, to try to decide that there's more that
17:13
Speaker 1: this judge can order, either with regard to content or
17:16
Speaker 1: with regard to relief, that can get Abrego Garcia back
17:20
Speaker 1: into the United States.
17:22
Speaker 2: So let's move now to Thursday of last week, where
17:26
Speaker 2: the birthright citizenship question was before the Supreme Court. I mean,
17:31
Speaker 2: was most of it about birthright citizenship or about nationwide injunctions?
17:36
Speaker 1: Right? Very little of the case had to do with
17:38
Speaker 1: birthright citizenship. There were some remarks by certain of the
17:42
Speaker 1: justices where the justices said, you know, let's assume that
17:46
Speaker 1: your birthright citizenship argument is wrong, what do we do
17:50
Speaker 1: in terms of the injunction here? And so there was
17:54
Speaker 1: a lot of that. There was not a lot of
17:56
Speaker 1: discussion in regard to anybody trying to argue too much
18:00
Speaker 1: that the birthright Citizenship Executive Order was legal, And I
18:05
Speaker 1: don't think the Court is ever going to be inclined
18:08
Speaker 1: to rule in that direction. But the question is what
18:12
Speaker 1: is the remedy for this and here? Really is there
18:16
Speaker 1: a way that there's maybe four or five justices that
18:20
Speaker 1: would carve out some new standard that has to be
18:24
Speaker 1: applied before a nationwide injunction could be issued, or are
18:29
Speaker 1: they just going to do away with them period and
18:32
Speaker 1: make people have to certify a class and get class
18:36
Speaker 1: action relief, which may be available in some types of
18:39
Speaker 1: cases and may not be available in other types of cases. So,
18:42
Speaker 1: for instance, in the alien enemies that case where those
18:46
Speaker 1: are not have to be filed in habeass you actually
18:49
Speaker 1: have in this case that just got decided now about pausing,
18:54
Speaker 1: you had a LEDO and Thomas saying you can't get
18:58
Speaker 1: class action relief in a hate case. And so that's
19:01
Speaker 1: the kind of example of perhaps it wouldn't be available,
19:04
Speaker 1: and so you would need a nationwide injunction if you're
19:07
Speaker 1: going to do this, And so there's a lot of
19:09
Speaker 1: those scenarios the Court was trying to grapple with, where
19:13
Speaker 1: is there an adequate substitute for a nationwide injunction in
19:17
Speaker 1: cases where it's actually needed, or would you be creating
19:21
Speaker 1: some pretty crazy outcomes where for instance, as an example,
19:25
Speaker 1: just in the birthright citizenship context, if you had two
19:29
Speaker 1: different circuits that ruled two different ways on birthright citizenship
19:35
Speaker 1: and if the Supreme Court denied third, just to take
19:38
Speaker 1: that example, then what would happen is if you apply
19:42
Speaker 1: for a passport in California, you might get it, and
19:46
Speaker 1: if you applied for a passport in Texas you might
19:48
Speaker 1: not get it. And that's absurd that there is literally
19:52
Speaker 1: two different rules for American citizenship depending on which passport
19:57
Speaker 1: office you apply in, and so you would think that
20:00
Speaker 1: this would not be the exact kind of case where
20:03
Speaker 1: you'd want to see this issue up. But I don't
20:05
Speaker 1: know what they're going to end up with in this context.
20:09
Speaker 2: Jess as Elena Kagan, who was a FORMERUS Listener General
20:12
Speaker 2: I believe, said something like I wouldn't have brought this
20:15
Speaker 2: case if I were you.
20:16
Speaker 1: Yeah, it definitely seems as the weirdest case ever to
20:22
Speaker 1: bring a nationwide injunction case. You would think you would
20:26
Speaker 1: want to bring it with regard to something like can
20:29
Speaker 1: you fire people in the parking meter service or something?
20:34
Speaker 1: You know some case of states like that way or Okay,
20:36
Speaker 1: so maybe the parking meter people in one place would
20:39
Speaker 1: be fired in another place. They couldn't be that kind
20:43
Speaker 1: of thing. But to do it here in a case
20:46
Speaker 1: that clearly there should be one federal standard of who
20:50
Speaker 1: is a US citizen and who isn't and where. If
20:53
Speaker 1: you don't have one standard, all that will happen is
20:55
Speaker 1: that people will move to the location where they can
20:59
Speaker 1: get citizenship just seems very strange to use that as
21:03
Speaker 1: the case that people want to have this issue of
21:05
Speaker 1: nationwide injunction. But at least, it clarifies the issues for
21:09
Speaker 1: the court to really think of the stakes here of
21:12
Speaker 1: having an interesting background of saying okay in this exact
21:15
Speaker 1: nationwide injunction case involving birthright citizenship, if we banned nationwide injunctions,
21:22
Speaker 1: how would we move forward in this world? And so
21:26
Speaker 1: at least it gives an interesting thought process. It really
21:29
Speaker 1: is the opposite of a straw man. This is sort
21:31
Speaker 1: of the Steelman thing where if you can write an
21:34
Speaker 1: argument in this case for ending nationwide injunctions, then you
21:39
Speaker 1: definitely have a strong standard that would apply in pretty
21:42
Speaker 1: much any other context.
21:44
Speaker 2: Now, let's turn to a reality show where immigrants would
21:49
Speaker 2: compete for US citizenship. I say that with a question
21:53
Speaker 2: mark because it sounds over the top, But the Department
21:57
Speaker 2: of Homeland Security is reportedly con considering being part of
22:01
Speaker 2: a show where immigrants would compete in various contests and
22:06
Speaker 2: the winner would be awarded citizenship. The show is being
22:10
Speaker 2: pitched by Rob Warsoff, who produced the Duck Dynasty reality show.
22:16
Speaker 2: Is this doable?
22:17
Speaker 1: Leon Well? What has been admitted to so far is
22:21
Speaker 1: that there have been meetings with officials at the Department
22:24
Speaker 1: of Justice about this, and what has also been I
22:27
Speaker 1: think seems to be not refuted by anyone, is that
22:30
Speaker 1: Secretary Nome has not met with the individuals trying to
22:34
Speaker 1: do this show. But what we know is that there
22:36
Speaker 1: is a desire to have a show where it's a
22:40
Speaker 1: reality show type competition where there's multiple people trying to
22:45
Speaker 1: get US citizenship and only one of them gets it
22:50
Speaker 1: at the end of the show. So there's a whittling
22:52
Speaker 1: down each episode as to a person who gets eliminated,
22:56
Speaker 1: and then only one person or perhaps one family gets
23:00
Speaker 1: the citizenship. And so interestingly, I've been asked by various
23:05
Speaker 1: reporters if I can think of a way where this
23:07
Speaker 1: could actually work under the law, and I haven't actually responded,
23:10
Speaker 1: but I'll do it here June, since we have since
23:13
Speaker 1: we have our podcast. And so as much as I
23:16
Speaker 1: wouldn't want this to be a show, you know, there's
23:18
Speaker 1: another immigration show that has huge rating called Ninety Day Fiance.
23:23
Speaker 1: I don't know if you've seen that one. I hadn't.
23:25
Speaker 2: I didn't know it was an immigration show though, okay, it's.
23:27
Speaker 1: An immigration show. Yeah, Because what happens is there's a
23:30
Speaker 1: visa called a cave visa. Here's how this works. If
23:33
Speaker 1: a US citizen is abroad. Let's say you go abroad
23:36
Speaker 1: because you're at your university and you take a semester
23:40
Speaker 1: abroad in France or something. Or let's say you're working
23:43
Speaker 1: at a project in Germany or Australia or wherever. You
23:47
Speaker 1: meet someone that you love. You're now in a very
23:50
Speaker 1: difficult situation because if you bring the person into America
23:55
Speaker 1: on a visitor visa and you get married to them,
23:58
Speaker 1: theoretically that person is committing immigration fraud because you're not
24:02
Speaker 1: supposed to be coming in on a visitor visa with
24:05
Speaker 1: an intent to get married. And if you do the
24:09
Speaker 1: long marriage process, how broad, then you might be separated
24:13
Speaker 1: from your spouse for a year or two, which is
24:15
Speaker 1: its own hardship. Nobody wants to be separated from their
24:18
Speaker 1: spouse for a year or two. So there's a visa
24:21
Speaker 1: that was created by Congress called the CA visa, the
24:24
Speaker 1: fiance visa, which says, we're going to help you circumvent
24:28
Speaker 1: this intent problem by giving you a visa that allows
24:31
Speaker 1: you to come in kind of like a visitor, but
24:34
Speaker 1: you have to get married in ninety days in order
24:37
Speaker 1: to say and then you can do the process like
24:39
Speaker 1: if you had met someone here and got married, and
24:42
Speaker 1: so that's the fiance visa. But what this TV show
24:45
Speaker 1: did is it decided to flip that on its head
24:48
Speaker 1: and say, we're going to bring people in and give
24:51
Speaker 1: them ninety days to decide whether they fall in love
24:54
Speaker 1: with each other or not. If they don't fall in
24:58
Speaker 1: love with each other, then they have to go. So
25:00
Speaker 1: it's kind of flipped the idea on its head. And
25:03
Speaker 1: so because that show has been wildly successful, even though
25:06
Speaker 1: it's not really what the fiancee visus for. It's not
25:09
Speaker 1: meant for the spouse to say, here, you have ninety
25:12
Speaker 1: days to impress me, or you're out of the country.
25:15
Speaker 1: It's not meant for that. But that's what this show
25:17
Speaker 1: has turned into very riveting television.
25:20
Speaker 2: Nevertheless, I'll admit my daughter has watched it.
25:23
Speaker 1: No, no, fair enough, I've seen it. I've seen it
25:25
Speaker 1: because people have brought it to my attention, and I'm
25:29
Speaker 1: both shocked and admiring at the same time that someone
25:32
Speaker 1: had such a perverse idea to take the immigration code
25:36
Speaker 1: and turn it on its head like this.
25:38
Speaker 2: It seems like competing for US citizenship would involve the
25:41
Speaker 2: government more. In the show, people.
25:44
Speaker 1: Say, well, no, the government doesn't have the authority to
25:46
Speaker 1: do well. So I've tried to think how could you
25:48
Speaker 1: do this? And the point is you could do it,
25:51
Speaker 1: but what you would need to do is you would
25:53
Speaker 1: need to have the Department of Justice in cahoots with this.
25:57
Speaker 1: And here's how it would work. So there is a
25:59
Speaker 1: stud called the cancelation of removal statues. And what the
26:04
Speaker 1: cancelation of removal statues says is, if you have been
26:10
Speaker 1: here illegally for ten years or more, and you have
26:15
Speaker 1: either a US citizen or a lawful permanent resident child
26:20
Speaker 1: or spouse who you being deported would cause extreme and
26:26
Speaker 1: unusual hardship to them, then you can ask an immigration
26:31
Speaker 1: judge to let you cancel your removal and stay in
26:36
Speaker 1: the United States. And what actually happens is if the
26:39
Speaker 1: immigration judge cancels the removal, you get a green card.
26:43
Speaker 1: This is a defense to a deportation proceeding. But again,
26:46
Speaker 1: you have to have been here ten years, and you
26:48
Speaker 1: have to have a qualifying US citizen child or US
26:54
Speaker 1: citizen spouse. And usually the point is these people have
26:56
Speaker 1: to be very sick or there has to be some major,
26:59
Speaker 1: major problem for why you would get this approved Okay,
27:03
Speaker 1: So the rule is only four thousand people can get
27:07
Speaker 1: this status a year, and so at the moment there's
27:10
Speaker 1: many more people who have been approved for this status,
27:13
Speaker 1: then there are slots, and so there's a bunch of
27:16
Speaker 1: people whose cases are in abeyan. So what you could
27:19
Speaker 1: do if you had the approval from the Department of
27:23
Speaker 1: Justice is you could pick twelve of these people whose
27:27
Speaker 1: cases are in abeyan and basically have them fight it
27:31
Speaker 1: out on TV as perversus, that is, for which one
27:34
Speaker 1: of them will get one of these four thousand plucks.
27:37
Speaker 1: Now they wouldn't get citizenships, they would get a green card.
27:40
Speaker 1: But then there actually is another statue which, if you
27:44
Speaker 1: wanted to interpret it again very very very very broadly
27:49
Speaker 1: and loosely compared to its text, allows five people, literally
27:54
Speaker 1: just five, to be given citizenship immediately if either the
27:59
Speaker 1: direct sure of the CIA or the Attorney General or
28:03
Speaker 1: the DHS Secretary says they've made an extraordinary contribution to
28:08
Speaker 1: the national security of the United States, which obviously winning
28:12
Speaker 1: a TV show wouldn't do. But maybe you'd make some
28:15
Speaker 1: argument that they provided such a good role model that
28:19
Speaker 1: now everyone will last that way, and that will make
28:22
Speaker 1: the security of the US better in some way. I
28:25
Speaker 1: don't know.
28:25
Speaker 2: Maybe you should expect to call from the producer. Leon.
28:29
Speaker 2: It sounds like a crazy idea, but there are a
28:32
Speaker 2: lot of reality shows that I would never have imagined
28:36
Speaker 2: would work. This could be the next one. Thanks so much, Leon.
28:40
Speaker 2: That's Leon Fresco of Honden Knight Up. Next, does Trump's
28:45
Speaker 2: interim pick for DCUs attorney test the appointment's power? This
28:50
Speaker 2: is Bloomberg. President Trump has appointed a second interim US
28:56
Speaker 2: attorney for the District of Columbia. Former Fox Knew host
29:00
Speaker 2: Janine Pierro was sworn in Wednesday as the next interim
29:04
Speaker 2: US Attorney for DC after Trump pulled the nomination of
29:09
Speaker 2: Ed Martin, who had served as the interim DC US
29:12
Speaker 2: attorney since January. The back to back interim US attorneys
29:18
Speaker 2: test the bounds of the federal statute governing temporary officials.
29:22
Speaker 2: Joining me, as constitutional law expert Harold Krant, a professor
29:26
Speaker 2: at the Chicago Kent College of Law, he'll tell us
29:29
Speaker 2: about what happened with Ed Martin that led to Janine
29:33
Speaker 2: Piero getting appointed.
29:35
Speaker 1: Well.
29:35
Speaker 4: The Attorney General, through the President, has the power to
29:37
Speaker 4: appoint an interim United States Attorney, which is the chief
29:40
Speaker 4: prosecutor for a variety of federal districts. Ed Martin was
29:45
Speaker 4: selected as the chief prosecutor for the US Attorney for
29:50
Speaker 4: the District of Columbia, and under the statute, a interim
29:54
Speaker 4: can serve for one hundred and twenty days. If at
29:58
Speaker 4: one hundred and twenty day is there's no permanent US
30:01
Speaker 4: Attorney appointed, then according to the statute, it's the DC Circuit,
30:07
Speaker 4: which is somewhat unusual then would have the power to
30:10
Speaker 4: appoint an interim. After the fact Ed Martin was removed
30:13
Speaker 4: from office because of political pressure prior to the one
30:17
Speaker 4: hundred and twenty days, which leaves open the question of
30:20
Speaker 4: who can fill the gap. Can the Attorney General appoint
30:24
Speaker 4: another interim or with that displaced the power of the
30:28
Speaker 4: Court to appoint an interim, And in the background is
30:33
Speaker 4: the Senate's power to confirm an important position might be
30:36
Speaker 4: US Attorney because with these successive interims, who either appointed
30:40
Speaker 4: by the Court or by the Attorney General, there is
30:45
Speaker 4: no rule for the Senate in terms of confirming a
30:49
Speaker 4: permanent person in that position.
30:51
Speaker 2: Does the US Attorney have to be from the area
30:55
Speaker 2: that he or she's.
30:56
Speaker 4: Appointed to there's no residency requirements to knowledge, so she
31:01
Speaker 4: is qualified and indeed in the background is lurking. I
31:05
Speaker 4: think the Senate would probably confirm her selection as the
31:09
Speaker 4: US Attorney even though obviously she's controversial because of her
31:13
Speaker 4: background with Fox News.
31:15
Speaker 2: So she has one hundred and twenty days in office.
31:18
Speaker 2: Is that right?
31:20
Speaker 4: That's the question because some people think, and Senator Durbin
31:24
Speaker 4: raised the question of whether her appointment was illegal, that
31:27
Speaker 4: perhaps the Attorney General can only have one answer appointment
31:31
Speaker 4: and after that time, either the Court would have to
31:34
Speaker 4: make an interemployment or the President would have to submit
31:39
Speaker 4: a permanent name for Senate consideration. So the difficulty with
31:44
Speaker 4: her appointment is that it might be illegal. And if
31:47
Speaker 4: it's illegal, then anybody who's convicted while she serves as
31:53
Speaker 4: the interim use attorney might have grounds to challenge their
31:58
Speaker 4: conviction on the ground that she was improperly appointed.
32:01
Speaker 2: I mean, it has been done before, right where there's
32:03
Speaker 2: the interim after interim after interim.
32:05
Speaker 4: There have been several of circumstances of a sort of
32:09
Speaker 4: a chain of interim appointments which then cut into either Again,
32:13
Speaker 4: the power of the Senate to approve a permanent appointment
32:18
Speaker 4: or the power of the court to appoint an interim attorney.
32:23
Speaker 4: So it's happened in Massachusetts and a lower court appeldate.
32:27
Speaker 4: There was an issue in New Mexico, and I believe
32:30
Speaker 4: in Illinois, so that's not unprecedented. But there is very
32:34
Speaker 4: few judicial tests, and it's really kind of a question
32:37
Speaker 4: of a letter versus the spirit of the law. There's
32:40
Speaker 4: nothing in a law that clearly states you can't have two, three,
32:43
Speaker 4: four seven interim appointments all less than one hundred and
32:46
Speaker 4: twenty days. But it's certainly the spirit of the statute
32:50
Speaker 4: that suggests that you only can have one intern appointment
32:54
Speaker 4: and then it would go either to a permanent appointment
32:58
Speaker 4: or to judicial appointment of a interim use security, which
33:03
Speaker 4: has also happened in our history.
33:04
Speaker 2: I mean, he could just nominate her to be the
33:07
Speaker 2: US Attorney for DC.
33:08
Speaker 4: Right absolutely, and I think the Senate would confirm he
33:12
Speaker 4: hasn't done that yet, maybe because he wants to see
33:15
Speaker 4: how she'll behave I have no idea what the thinking is,
33:17
Speaker 4: or maybe he wants to test the statute. But this
33:19
Speaker 4: seems to be a very minor tesk in comparison to
33:22
Speaker 4: all of the other article two challenges that he has instigated,
33:27
Speaker 4: so it's unclear why he hasn't point her and then
33:29
Speaker 4: this whole issue would go away.
33:31
Speaker 2: In his first term, he said he likes the temporary
33:34
Speaker 2: There was more turnover in his first term. At this
33:36
Speaker 2: point in his first term, well, I do think.
33:38
Speaker 4: That it does give him some kind of immediate power.
33:42
Speaker 4: And the message to Janine is, do a great job
33:46
Speaker 4: what I want you to do, and then maybe I'll
33:49
Speaker 4: give you the permanent employment and I don't want to
33:51
Speaker 4: worry about any kind of removal or not. I'll just
33:53
Speaker 4: give a permanent employment. And that way he has more
33:56
Speaker 4: of a control sort of testing out whether or not
33:59
Speaker 4: she would serve his will, if you will effectively in
34:02
Speaker 4: that role.
34:03
Speaker 2: He's not the only president to use interim appointments. Is
34:07
Speaker 2: it a trend sort of? And is that because Senate
34:11
Speaker 2: confirmation is difficult.
34:13
Speaker 4: Lots of times, particularly at the beginning of an administration,
34:16
Speaker 4: before you know all your stucture in order, there's a
34:20
Speaker 4: need to have a great many interim appointments, and Congresses
34:23
Speaker 4: tried to regulate that, specifically with US attorneys as we're discussing,
34:27
Speaker 4: but also with all generally officers nined States, and they've
34:30
Speaker 4: done a very complex statue calls of the Federal Vacancy's
34:34
Speaker 4: Reform Act, which tries to limit who the president can
34:38
Speaker 4: appoint for these acting roles. But this particular statute is
34:42
Speaker 4: carve out from the Federal Vacancy Reform Acts, and so
34:45
Speaker 4: it is more open ended as to whether these successive
34:50
Speaker 4: appointments can be made or not. Not Ironically, President Trump
34:56
Speaker 4: benefited from this because in his Moral Lago Documents case,
35:00
Speaker 4: Judge Ilean Cannon dismissed the indictment against him because she
35:03
Speaker 4: ruled that the Special Council have been illegally appointed. And
35:08
Speaker 4: most people disagree with that ruling as a remedy. But
35:11
Speaker 4: the problem with the appointment is that that is a
35:15
Speaker 4: president or any criminals who's been convicted under the watch
35:19
Speaker 4: of an interim US attorney to argue that the whole
35:23
Speaker 4: indictment should be thrown out. So again, I think many
35:26
Speaker 4: people disagree with Judge Cannon's reasoning in President Trump's case,
35:30
Speaker 4: but it does show that there is a risk with
35:33
Speaker 4: this particular appointment.
35:34
Speaker 2: I mean, if this was a Senate that was less partisan,
35:39
Speaker 2: would they be concerned that this is taking away the
35:41
Speaker 2: Senate's power.
35:43
Speaker 4: Well, that's exactly what Senator Durbin articulated and said that,
35:47
Speaker 4: you know, by having the successive or he called it
35:50
Speaker 4: a daisy chain of appointment of interims, the president can
35:54
Speaker 4: sap the Senate of its power to either confer or
35:57
Speaker 4: withhold consent. And you know, in a matter of theory,
36:01
Speaker 4: Center Durbin's absolutely correct. But there's nothing in the statute
36:04
Speaker 4: specifically that prevents a series of inter appointments.
36:09
Speaker 2: And tell us how Trump is pushing his power to
36:15
Speaker 2: fire anyone, even those heading independent agencies.
36:21
Speaker 4: Indeed, he has discharged members of many agencies that Congress's
36:28
Speaker 4: deemed should be somewhat independent of the president's control, namely
36:31
Speaker 4: those sitting on top the Federal Labor Relations Authority, the
36:35
Speaker 4: National Labor Relations for the Federal Trade Commission, among others
36:40
Speaker 4: in his executive order. And well, his conduct suggests that
36:44
Speaker 4: there is not such thing as an independent agency. In
36:47
Speaker 4: other words, that Congress lacks authority under Article one of
36:50
Speaker 4: the Constitution in creating an office to determine that the
36:53
Speaker 4: office is more effectively run if it can boast some
36:57
Speaker 4: kind of independence from day to day presidential meddling. So
37:02
Speaker 4: that's the big issue, And indeed, just a couple of
37:04
Speaker 4: days ago, the administration announced that it would not defend
37:10
Speaker 4: a challenge to even the independence of an administrative law
37:14
Speaker 4: judge in an agency proceeding was a case involving in
37:18
Speaker 4: the National Labor Relations Board, and there it's not even
37:21
Speaker 4: ahead of an agency. Here, there is somebody who's totally
37:25
Speaker 4: subordinate to an agency, and Administration at least has expanded
37:29
Speaker 4: this view that even such inferior officers of the United
37:33
Speaker 4: States cannot be shielded from a plenary move authority in
37:37
Speaker 4: that case of the agency, which again is then subject
37:42
Speaker 4: to the plenary move authority of the president. So it's
37:45
Speaker 4: even expanding this notion of the fact that there can
37:48
Speaker 4: be no independence extended even to independent fact finders who
37:53
Speaker 4: are the administrative law judges in those cases, suggests an
37:56
Speaker 4: incredible extent and breadth of this theory that there is
38:00
Speaker 4: no role for Congress to stay. We want to have
38:03
Speaker 4: some independence of scientific judgment, of judicial judgments of inspector
38:09
Speaker 4: general judgment, and that seems to be well within both
38:12
Speaker 4: historically well within the constitutional purview of Congress to make
38:16
Speaker 4: such decisions.
38:18
Speaker 2: Is Trump different in this respect, or have other presidents
38:22
Speaker 2: wanted the power to fire people in these positions.
38:25
Speaker 4: He has expanded this power greatly. President Biden also remove
38:31
Speaker 4: some agency officials and say that they should not be
38:34
Speaker 4: protected from at will removal, but nothing in comparison to
38:38
Speaker 4: President Trump's executive order explaining that he's against all the
38:43
Speaker 4: sort of exercises of the independent judgment removed from presidential control.
38:48
Speaker 4: And we're seeing this played out in the discharges of
38:51
Speaker 4: these agency officials and most recently in his refusal to
38:55
Speaker 4: defend the constitutionality unconstitutionality of protections of the suborted administry
39:02
Speaker 4: of law judges from at will removal as well. So
39:06
Speaker 4: we've seen evidence of this from President Reagan on in
39:09
Speaker 4: terms of the last generation and a half, but it's
39:12
Speaker 4: really taken a new sort of level of activism by
39:18
Speaker 4: President Trumck.
39:19
Speaker 2: And I don't know if I've ever heard of a
39:20
Speaker 2: court appointing a US attorney.
39:25
Speaker 4: I do think that the statute allowing inter appointment of
39:28
Speaker 4: US attorneys by the courts is odd. And even though
39:33
Speaker 4: the Supreme Court upheld court appointment of the Special Council
39:37
Speaker 4: under the Independent Council Act in the Morrison versus Olsen case,
39:40
Speaker 4: it's always struck me that these cross branch appointments are
39:44
Speaker 4: quite sketchy, and they seem to undercut the notion of
39:49
Speaker 4: autonomy of one branch as opposed to the other. So,
39:53
Speaker 4: in terms of one potential issue that underlies this recent
39:59
Speaker 4: appointment Judine Perrot to be US Attorney of the DC
40:03
Speaker 4: Circuit is whether if a court would actually try to
40:08
Speaker 4: appoint an interim US attorney, whether the Trump administration would
40:13
Speaker 4: attack that as on constitutional under employments plause of the
40:16
Speaker 4: Article two. Because I think it's a plausible argument that
40:20
Speaker 4: says that the head prosecutors and executive function and why
40:24
Speaker 4: should the court be appointing someone with such kind of
40:28
Speaker 4: executive authority.
40:29
Speaker 2: Well, we'll have to see if anyone even challenges the
40:32
Speaker 2: interim following interim appointments. Thanks so much, Hal. That's Professor
40:37
Speaker 2: Harold Krant of the Chicago Kent College of Law. And
40:41
Speaker 2: that's it for this edition of the Bloomberg Law Show.
40:44
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40:46
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40:51
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40:59
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41:03
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