Latest / Bloomberg Law / Immigration: From Detainees to Sanctuary Cities

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Immigration: From Detainees to Sanctuary Cities · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 1: After more than three months in federal custody, Columbia University
0:13
Speaker 1: graduate and activist Mahmoud Khalil was released from an iced
0:17
Speaker 1: attention facility in Louisiana on Friday. He vowed to continue
0:21
Speaker 1: the protests against Israel and the war in Gaza that
0:24
Speaker 1: got him arrested in the Trump administration's crackdown on foreign
0:28
Speaker 1: students who joined campus protests.
0:31
Speaker 2: The US government is funding this genocide and Columbia University
0:40
Speaker 2: is investing in this genocide. This is what I was protesting.
0:45
Speaker 2: This is what I would continue to protest with every
0:47
Speaker 2: one of you.
0:48
Speaker 1: A federal judge had ordered Khalil to be released, saying
0:51
Speaker 1: it would be highly unusual for the government to continue
0:55
Speaker 1: to detain a legal US resident who's unlikely to flee
0:59
Speaker 1: and had hasn't been accused of violence. Joining me is
1:02
Speaker 1: Immigration law expert Leon Fresco, a partner at Honda Knight,
1:06
Speaker 1: Leon Khalil is out of detention. But is he out
1:10
Speaker 1: of the woods.
1:11
Speaker 3: No, He's absolutely not out of the woods, because there
1:14
Speaker 3: are so many different ways in which he can be
1:17
Speaker 3: placed back in detention. The first would be for an
1:20
Speaker 3: appellate court to place him back in detention under the
1:23
Speaker 3: guys that his entire habeas proceeding. There's no jurisdiction for
1:28
Speaker 3: the lower court judge to actually issue any of the
1:32
Speaker 3: orders he's issuing. This is a big undecided issue in
1:35
Speaker 3: the immigration system, which is do these types of habeas
1:40
Speaker 3: claims have to be decided actually in the context of
1:44
Speaker 3: the removal preceding itself, and not in a habeas claim,
1:48
Speaker 3: but rather just what happens is you go to an
1:50
Speaker 3: immigration judge, you say that the law is unconstitutional that
1:55
Speaker 3: says that you can be banned from the country because
1:57
Speaker 3: of foreign policy reasons. The immigrant just says they don't
2:01
Speaker 3: have jurisdiction. Then the Board of Immigration Appeal says they
2:04
Speaker 3: don't have jurisdiction, and only then you can make this
2:07
Speaker 3: constitutional claim to a court of appeals as part of
2:11
Speaker 3: a petition for review. So that's the argument the government's making,
2:15
Speaker 3: and they actually have pretty strong statutory authority for this.
2:20
Speaker 3: The problem is that could take years, and so the
2:23
Speaker 3: question is will the Supreme Court say, look, you actually
2:27
Speaker 3: can be detained for years while you make these kinds
2:29
Speaker 3: of claims or does the court allow this kind of
2:33
Speaker 3: habeas for this exact type of situation. So there's that,
2:37
Speaker 3: But then there's a whole second issue, which is that
2:40
Speaker 3: they're actually trying to deport in not just for this
2:43
Speaker 3: calm to foreign policy reason, but they're also saying that
2:46
Speaker 3: he lied on his green card application, and that in
2:51
Speaker 3: and of itself justifies his detention and removal if they
2:55
Speaker 3: can show that the lies on the green card application
2:58
Speaker 3: or material and the lies were all about various associations
3:01
Speaker 3: that he's had in the past that he did not
3:04
Speaker 3: report when there was this question that says, please tell
3:07
Speaker 3: me about any organizations that you've been a member of,
3:10
Speaker 3: and he didn't put any of these organizations on his application,
3:14
Speaker 3: and the question is are those omissions materials? And so
3:17
Speaker 3: the lower court judge said that because there wasn't any
3:20
Speaker 3: evidence that the government provided, they did not think that
3:24
Speaker 3: detention and removal was based on that issue. That is
3:29
Speaker 3: never used to justify detention and removal. But if an
3:33
Speaker 3: appellate court used that either of those two issues are
3:37
Speaker 3: sufficient to place him back in detention and ultimately removal,
3:40
Speaker 3: then Khalil will be either redetained and ultimately removed and
3:44
Speaker 3: so he's definitely not out of the woods.
3:47
Speaker 1: Yet can't the government bring up at any point that
3:50
Speaker 1: you lied on your green court application?
3:53
Speaker 3: They absolutely can, and that's why it was kind of
3:55
Speaker 3: remarkable what the district judge said. The district judge basically
3:59
Speaker 3: said that this was a pretextual claim, and because he
4:03
Speaker 3: viewed it as a pretextual claim, he wasn't going to
4:06
Speaker 3: allow the government to keep Khalil in detention. There's a
4:09
Speaker 3: lot of precarious parts about the lower court's order, but
4:12
Speaker 3: that's the most precarious part, because there wasn't even a
4:15
Speaker 3: dispute that the government has this authority to detain and
4:19
Speaker 3: remove on the basis of these omissions. But the district said, look,
4:23
Speaker 3: there wasn't any strong evidence that you've done this in
4:26
Speaker 3: the past in this context, and so I'm going to
4:29
Speaker 3: view this as pretextual and say that you are doing
4:32
Speaker 3: this because of Mahmud Khalil's complaints about the war, you know,
4:37
Speaker 3: between the Israelis and the Palestinians. And so that's kind
4:41
Speaker 3: of a remarkable decision in terms of its far reaching authority.
4:46
Speaker 3: And we're going to see if an appellate court tries
4:48
Speaker 3: to rein that in he.
4:49
Speaker 1: Says he's going to continue his protests, and since his
4:52
Speaker 1: release he's been doing just that. Is he hurting his
4:56
Speaker 1: case in any way by continuing the pro chest.
5:00
Speaker 3: I definitely think now we're at the point where he's
5:03
Speaker 3: gonna get all the negative presumptions in terms of his activity,
5:08
Speaker 3: whether his activity is viewed in a way that's helpful
5:12
Speaker 3: or harmful. It's just a matter now of the sort
5:15
Speaker 3: of legal arguments in this case, which are Number one,
5:19
Speaker 3: is the statute under which he's being detained so vague
5:23
Speaker 3: that putting aside anything you think Mamood Khalil is doing,
5:26
Speaker 3: it's just so vague. We just don't know what if
5:29
Speaker 3: what you're leading is a protest in favor of the
5:31
Speaker 3: Red Cross and you're saying give more money to the
5:34
Speaker 3: Red Cross, if somebody just doesn't like that and detains you,
5:38
Speaker 3: And so that's the real question here is is that
5:40
Speaker 3: statute so vague that it can't be used for any purpose?
5:45
Speaker 3: Or will that statute actually not be viewed as vague?
5:49
Speaker 3: And then the second question, of course, is what is
5:51
Speaker 3: the context in which you can challenge this? And so
5:55
Speaker 3: it's possible that his entire habeas salad was completely unlawful
5:59
Speaker 3: because you have to only challenge it as part of
6:01
Speaker 3: the removal process. And then third the specific questions about
6:06
Speaker 3: his green card application and whether he lied on it.
6:09
Speaker 3: So there's just so many complications in this case that
6:12
Speaker 3: for him to pull out the perfect straight flush here
6:17
Speaker 3: would be an incredible legal accomplishment. But I definitely don't
6:21
Speaker 3: think that he's doing himself and he favors fact wise
6:25
Speaker 3: by doing all of the things he's doing.
6:28
Speaker 1: I want to turn to jilmoar Abrigo Garcia for a moment,
6:31
Speaker 1: because a judge rule that he should be released as well,
6:36
Speaker 1: explain why she said that he shouldn't be kept in
6:39
Speaker 1: pre trial detention.
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Speaker 3: Well, at the end of the day, the issue there is,
6:44
Speaker 3: when you're doing a pre trial criminal detention, you're trying
6:48
Speaker 3: to decide whether the person is going to be dangerous
6:52
Speaker 3: and are they going to abscond from their proceedings, And
6:57
Speaker 3: the issue there is, at least vis a v the
7:00
Speaker 3: criminal proceedings, what the judge is basically saying is there
7:05
Speaker 3: isn't enough evidence here that he's going to be violent enough. Member.
7:10
Speaker 3: When you ask for bond from a criminal case, many
7:13
Speaker 3: people get bond when they're in trial. It doesn't. So
7:17
Speaker 3: there are people who are on murder cases who are
7:20
Speaker 3: on bond during trial, and so it's very actually rare
7:24
Speaker 3: that there's no bond at all that's issued. And so
7:26
Speaker 3: they're saying, this guy doesn't have a history of actually
7:30
Speaker 3: committing violent crimes. Number one and number two in terms
7:35
Speaker 3: of being a flight risk. This guy's pretty famous and
7:39
Speaker 3: notorious now, and so he doesn't actually want to flee
7:42
Speaker 3: the country. His whole point is he's wanted to stay
7:45
Speaker 3: in the country, and so he would be someone that
7:48
Speaker 3: would be absconding. There wouldn't be a risk there, because
7:51
Speaker 3: the whole point is this guy's just trying to remain
7:54
Speaker 3: in the country. But in any case, the fact that
7:58
Speaker 3: he's gotten this bond doesn't really change anything, because now
8:02
Speaker 3: what happens is the immigration proceedings will continue because there's
8:06
Speaker 3: sort of these two parallel things. There's a deportation process
8:10
Speaker 3: and there's a criminal process, and the government can always
8:13
Speaker 3: elect to do the criminal process first and then do
8:16
Speaker 3: the deportation process, but it doesn't have to do it
8:19
Speaker 3: that way. And so if this judge says he can
8:22
Speaker 3: go free on bond, then what the immigration folks will
8:26
Speaker 3: do is say, well, we'll just then continue the immigration
8:29
Speaker 3: process of trying to get him deported, and that part
8:33
Speaker 3: of the process has to do with showing that conditions
8:37
Speaker 3: in El Salvador have changed such that he would be
8:40
Speaker 3: able to be sent there without being tortured, which is
8:43
Speaker 3: itself going to be quite a tricky case because if
8:47
Speaker 3: he's just going to be sent back to that same
8:48
Speaker 3: Sea Coot facility, this might not be the easiest case
8:52
Speaker 3: as opposed to he was going to be sent to
8:54
Speaker 3: El Salvador and be freed, then okay, you can make
8:58
Speaker 3: a better argument that the game related torture he was
9:01
Speaker 3: worried about in the past isn't going to happen now.
9:04
Speaker 3: But there's this whole separate claim about, well, the president
9:07
Speaker 3: of Olsavador has called him a terrorist, and if he
9:10
Speaker 3: puts him back in seacocks, are the conditions in the
9:13
Speaker 3: seacot facility tends about the torture. So this case is
9:18
Speaker 3: even messier than the Khalil case, and we'll just have
9:22
Speaker 3: to wait and see. But the upshot is he's not
9:24
Speaker 3: going to be free from detension one way or another. Again,
9:27
Speaker 3: he's another one that will need the straight plush of
9:30
Speaker 3: having both the criminal court free him from bond, and
9:34
Speaker 3: an immigration court judge who will free him in a
9:38
Speaker 3: bond proceeding as well.
9:40
Speaker 1: Yes, these cases are so complicated. I guess they're showing
9:42
Speaker 1: the public how complicated the immigration laws are. Let's talk
9:47
Speaker 1: about sanctuary cities and sanctuary states. Attorneys general in twenty states,
9:54
Speaker 1: mostly Democratic led states, have sued the administration. Their claims
9:59
Speaker 1: are sort of similar to other lawsuits that have sued
10:01
Speaker 1: the administration for different things.
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Speaker 3: Yes, what happened in the particular case that just got
10:07
Speaker 3: decided earlier last week was that the Secretary of Transportation,
10:11
Speaker 3: Sean Duffy, had tried to block transportation funds, which are
10:16
Speaker 3: funds that the Congress sets for the purpose of giving
10:19
Speaker 3: them to the states and to the cities for roads
10:22
Speaker 3: and bridges and tunnels and that kind of thing. And
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Speaker 3: Secretary Duffi's claim was, why should sanctuary cities get this money.
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Speaker 3: They're just ruining everything, They're causing all these problems. I'm
10:34
Speaker 3: going to give it to cities that actually will try
10:38
Speaker 3: to improve their communities and not be sanctuary cities. Those
10:41
Speaker 3: are his words, not mine. And so he said these
10:44
Speaker 3: conditions that said you will have to make a certification
10:48
Speaker 3: that you're not a sanctuary city in order to get
10:50
Speaker 3: these funds. And so again, as you said, the states
10:53
Speaker 3: and the city sued, and the federal court judge in
10:56
Speaker 3: Rhode Island actually blocked this ability to say that you
11:01
Speaker 3: can't get funding unless you say you're not a sanctuary
11:04
Speaker 3: city because he said that the Congress didn't actually when
11:07
Speaker 3: they issued these grants contemplate anything related to sanctuary cities
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Speaker 3: at all. And so the point is, maybe if the
11:15
Speaker 3: Congress had said something about that, you could have an argument,
11:18
Speaker 3: But the Congress just said, hey, based these grant allocations
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Speaker 3: on the transportation means of the states of the cities,
11:26
Speaker 3: and the story. That's it. So there isn't any authority
11:30
Speaker 3: for the Secretary of Transportation to add new requirements, especially
11:34
Speaker 3: not ones that are related to immigrations.
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Speaker 1: Leon are there any sanctuary cities or states because of this,
11:42
Speaker 1: you know, pushed by the Trump administration that are retreating
11:46
Speaker 1: from their positions.
11:48
Speaker 3: So there's a couple of problems. So in some states,
11:51
Speaker 3: like for instance, if you say California, California actually has
11:55
Speaker 3: a state law that requires all of the city in
12:00
Speaker 3: California to be sanctuary cities as a state. They say
12:04
Speaker 3: the states and the cities cannot cooperate with ICE vis
12:09
Speaker 3: a ve giving either access to the jails or with
12:12
Speaker 3: regard to detaining people and reporting them to ICE, and
12:16
Speaker 3: so in those situations, there are plenty of cities in
12:18
Speaker 3: California that are voicing a desire to cooperate with ICE,
12:24
Speaker 3: but they're not able to because of state law. And
12:28
Speaker 3: in a lot of big cities there's that problem. But
12:30
Speaker 3: in other cities where the states are not constraining them,
12:35
Speaker 3: you are seeing some efforts. It's sort of the same
12:38
Speaker 3: thing you're seeing with the law firms and a little
12:42
Speaker 3: bit with the universities, except that no university has yet
12:45
Speaker 3: reached an agreement with the Trump administration. Where there are
12:49
Speaker 3: some cities that are trying to broker deals with the
12:54
Speaker 3: Trump administration to get themselves off of the naughty list,
12:57
Speaker 3: so to speak, but again none have been a But
13:01
Speaker 3: there are some cities that are sort of lower profile
13:04
Speaker 3: cities that are trying to broker those deals to get
13:08
Speaker 3: themselves off this list, but again none have been finalized
13:11
Speaker 3: and none have been announced.
13:12
Speaker 1: Coming up next, Trump gets an immigration win at the
13:15
Speaker 1: Supreme Court. This is Bloomberg. There's been a lot of
13:19
Speaker 1: publicity over federal immigration officials conducting large scale arrests outside
13:24
Speaker 1: immigration courtrooms across the country. In many cases, immigrants are
13:28
Speaker 1: arrested after a judge grants a government request to dismiss
13:32
Speaker 1: their case, making them eligible for expedited removal. I've been
13:37
Speaker 1: talking to immigration law expertly on Fresco of Holland and
13:40
Speaker 1: Knight Leon is what the government is doing in these cases,
13:44
Speaker 1: dismissing the case and then arresting them. Is it legal?
13:49
Speaker 3: Yes, it is legal. ICE can and the reason it
13:54
Speaker 3: actually does choose the immigration court is because the individuals
13:58
Speaker 3: have gone through security so they don't have any weapons.
14:01
Speaker 3: They're not home, they're not in a school, they're not
14:04
Speaker 3: in a place where it will be a major scene,
14:08
Speaker 3: sort of a place where you wouldn't expect to be caught. Now,
14:11
Speaker 3: the problem is if you go to immigration courts and
14:14
Speaker 3: you apprehend people, people will stop going to immigration court,
14:17
Speaker 3: which is not what you want. You want them to
14:19
Speaker 3: go to court and then you want them to see
14:22
Speaker 3: what happens after that. But now people are not going
14:24
Speaker 3: to go to court. But that's the reason why ICE
14:26
Speaker 3: is doing it. Now. The second thing that they're doing
14:29
Speaker 3: as you said, is they're not just waiting to see
14:31
Speaker 3: who loses and then apprehend them, which theoretically people would
14:36
Speaker 3: understand that. They would say, look, if you get a
14:38
Speaker 3: deportation order, why not actually place the person in deportation
14:44
Speaker 3: custody at that point and deport them. Why let them
14:47
Speaker 3: just go home and have to go get them some
14:50
Speaker 3: other day and deport them. So I think people understand
14:54
Speaker 3: that point. But what's happening now is this second thing
14:57
Speaker 3: where they're saying, we're going to actually cut your deportation
15:02
Speaker 3: proceedings off. We're going to dismiss them, which in a
15:06
Speaker 3: theory is a benefit to the foreign nationals. But what
15:09
Speaker 3: they're doing is they're asking them to be dismissed because
15:12
Speaker 3: they don't want to go through the two year process
15:15
Speaker 3: that these hearings sake. They want to put them in
15:17
Speaker 3: something called expedited removal. The difference is is once you're
15:21
Speaker 3: in expedited removal, you can be placed in mandatory detention.
15:26
Speaker 3: There is no bond from that. And what expedited removal
15:29
Speaker 3: is is if you've been in the country less than
15:32
Speaker 3: two years, you actually don't need to go through the
15:36
Speaker 3: whole formal removal process. So long as you haven't articulated
15:41
Speaker 3: a credible fear of being persecuted on the basis of
15:45
Speaker 3: your race, religion, national origin, social group, or political opinions.
15:50
Speaker 3: And so what happens is there's a been about five
15:53
Speaker 3: six hundred thousand people who have been parolled under that
15:56
Speaker 3: Biden Cuban, Haitian, Nicaraguans Whalen parole, and also hundreds of
16:02
Speaker 3: other thousands of people that have gotten temporary protected status,
16:07
Speaker 3: and so some of those people actually don't have any
16:10
Speaker 3: such claims for persecution. So what Ice is trying to
16:14
Speaker 3: do is say, let's take some of those people just
16:17
Speaker 3: because they're very low hanging fruit, and when we terminate
16:20
Speaker 3: their status, place them in expedite and removal and cut
16:24
Speaker 3: off their two or three year immigration proceeding so that
16:28
Speaker 3: we can place them in mandatory detention. And so it's
16:32
Speaker 3: really just about that. And also remember that they've been
16:36
Speaker 3: getting a lot of political pressure to have three thousand
16:39
Speaker 3: arrests per day, and so this is just again the
16:42
Speaker 3: lowest hanging fruit way of getting those three thousand arrests
16:45
Speaker 3: per day.
16:47
Speaker 1: So, speaking about immigration court and people not wanting to
16:50
Speaker 1: show up for fear of arrest, let's talk about the
16:53
Speaker 1: Alien Registration Act, which has not been used in seventy
16:58
Speaker 1: five years. You know, it's still on the books.
17:01
Speaker 3: Though, correct, there's laws that require that if you haven't
17:05
Speaker 3: registered with the federal government when you've entered the country,
17:09
Speaker 3: you're actually committing a misdemean And so what happens is
17:12
Speaker 3: the way it's being interpreted right now, and say they
17:15
Speaker 3: tried to get it and enjoined and they failed. Meaning
17:17
Speaker 3: the courts have actually recently and meaning this year, have
17:21
Speaker 3: said that the Trump administration can enforce this registration requirement.
17:25
Speaker 3: The Trump administration has said, look, if you entered with
17:28
Speaker 3: a visa, then you've registered, that's fine. But if you
17:31
Speaker 3: cross the border and nobody knows you're here, you just
17:35
Speaker 3: crossed illegally. If we find you and you didn't register,
17:40
Speaker 3: we can put you in jail. We can prosecute you
17:43
Speaker 3: for failure to register. And what you're seeing now is
17:48
Speaker 3: because there's not enough space in immigration detention facilities to
17:54
Speaker 3: place all of these people in the deportation process in
17:57
Speaker 3: an immigration detention facility. The other way that these three
18:01
Speaker 3: thousand arrests are being executed is that some of these
18:04
Speaker 3: people are actually being placed in federal criminal prosecutions and
18:08
Speaker 3: proceedings to say, look, you just didn't register as someone
18:13
Speaker 3: who's here undocumented, so they're actually going to prosecute you
18:16
Speaker 3: for this crime. And the added benefit of that to
18:20
Speaker 3: the Trump administration is by doing that, that sort of
18:24
Speaker 3: creates another deterrent factor, another tactic that will make people
18:29
Speaker 3: who cross the border illegally hear very, very nervous about
18:34
Speaker 3: remaining in the country, because in addition to just being deported,
18:38
Speaker 3: now there's this other possibility that they can be criminally
18:41
Speaker 3: prosecuted and criminally detained for failure to report their statistie.
18:47
Speaker 3: But then one might argue, well, why don't they just
18:49
Speaker 3: report their status, and certainly they should, but then the
18:52
Speaker 3: fear as well if they do that, does that make
18:54
Speaker 3: them low hanging fruit for ice to come pick them
18:57
Speaker 3: up anyway? And so that's the forty two situation that
19:01
Speaker 3: those individuals are in. But the point is, if there's
19:05
Speaker 3: any interaction at all that any person who crossed the
19:08
Speaker 3: border has with police, it's very likely now that they're
19:12
Speaker 3: going to be charged with this failure to register and
19:15
Speaker 3: be criminally prosecuted for it.
19:17
Speaker 1: DHS estimates that up to three point two million immigrants
19:21
Speaker 1: are currently unregistered and would be affected by this. But
19:26
Speaker 1: there are several cases, like five cases or so, and
19:29
Speaker 1: a federal magistrate judge dismissed the criminal cases right.
19:34
Speaker 3: Well, some federal magistrate judges are saying that people are
19:39
Speaker 3: not intentionally refusing to register, and so they're interpreting the
19:43
Speaker 3: statute as saying that the only way you can actually
19:46
Speaker 3: be prosecuted is if you knew you had this requirement
19:50
Speaker 3: and intentionally refused to register. And so from that perspective,
19:55
Speaker 3: there's going to be some debate about, well, does ICE
19:58
Speaker 3: need to sort of do a double cat, which is
20:00
Speaker 3: catch the person, tell them to register, and only if
20:03
Speaker 3: they don't register then you can prosecute them. And that's
20:07
Speaker 3: going to be another of these issues that's going to
20:09
Speaker 3: have to work their way up to the Supreme Court.
20:12
Speaker 3: Is do you have some duty to know already that
20:15
Speaker 3: you have to register or does the government have to
20:18
Speaker 3: tell you you have to register and only then do
20:20
Speaker 3: you have to register?
20:22
Speaker 1: And how much is the possible sentence?
20:24
Speaker 3: The maximum is six months in prison, but I don't
20:28
Speaker 3: think anybody would actually get six months in prison. And
20:30
Speaker 3: I think the larger issue is just that it's just
20:33
Speaker 3: another way to when they arrest you. They can arrest you,
20:36
Speaker 3: they can put you in the tension, separate you from
20:39
Speaker 3: your family, and just that trauma that that whole process
20:42
Speaker 3: creates is basically the reason for doing it.
20:45
Speaker 1: A lot of these tactics by the Trump administration are
20:48
Speaker 1: to encourage illegal immigrants to self deport.
20:53
Speaker 3: Correct, that's the whole point of this. By creating the
20:56
Speaker 3: various touch points in which one can be apprehended and
21:00
Speaker 3: can eventually either be detained or prosecuted or deported or
21:05
Speaker 3: otherwise inconvenience. There's now, by the way, new regulation that's
21:08
Speaker 3: going to come out soon for the people that overstayed.
21:11
Speaker 3: So those are not people that registered, but the people
21:14
Speaker 3: oversay that will find them each day and we'll see
21:17
Speaker 3: if the courts allow that to happen. But that'll be
21:20
Speaker 3: yet another checkpoint is if you get this gigantic bill
21:23
Speaker 3: for hundreds of thousands of dollars for you know, every
21:26
Speaker 3: day that you've been in the country and lawfully you
21:29
Speaker 3: got to fined fifty dollars or something like that. And
21:32
Speaker 3: so all of these are various touch points that they're
21:34
Speaker 3: trying to create to basically force people to self support
21:38
Speaker 3: from the United States And let's.
21:39
Speaker 1: Turn to Harvard for a minute, because it's a little
21:42
Speaker 1: confusing to me. What has the Trump administration tried to
21:46
Speaker 1: do with regard to Harvard and its foreign students.
21:52
Speaker 3: From multiple things. The first attempt was just to say,
21:56
Speaker 3: every school in America that wants to bring a fore
22:00
Speaker 3: students into their school has to get an approval from
22:03
Speaker 3: something called SEVP, the Student Exchange Visitor Program, which is
22:07
Speaker 3: part of ICE Immigration and Customs Enforcement. And so once
22:11
Speaker 3: you have that approval, you basically have the ability to
22:14
Speaker 3: give these permission flips out. They're called I twenty forms
22:18
Speaker 3: that gives a student that you've admitted to your school
22:21
Speaker 3: the right to go to an embassy and ask for
22:23
Speaker 3: a student visa. And so what Harvard did is Harvard,
22:28
Speaker 3: like everyone else, gave out these I twenties and students
22:31
Speaker 3: had visas and they were at Harvard. And so what
22:34
Speaker 3: the Trump administration said is we wanted to terminate your
22:38
Speaker 3: SEVP status, meaning put Harvard back into the position as
22:43
Speaker 3: if it had never been given disapproval at all, like
22:46
Speaker 3: if it was just a brand new university that can't
22:48
Speaker 3: bring foreign students in. And this would have had two effects. One,
22:53
Speaker 3: don't do students could have come in and gotten visas.
22:56
Speaker 3: But number two, the students who are at Harvard would
23:00
Speaker 3: immediately lose their ability to continue studying at Harvard because
23:04
Speaker 3: every student who's here on a student visa has to
23:07
Speaker 3: have what's called that quote unquote active status in the
23:11
Speaker 3: Student Exchange Visitor Program in order to have lawful status.
23:15
Speaker 3: And so what the Trump administration had said to those
23:18
Speaker 3: students was, you have to transfer. You have to leave
23:21
Speaker 3: Harvard as student as possible and go to some other
23:23
Speaker 3: school if you want to maintain your status. So Harvard
23:27
Speaker 3: asks for an injunction, and they get an injunction or
23:31
Speaker 3: they get a temporary restraining order, and now they have
23:33
Speaker 3: an injunction that prevents the government from at the moment
23:38
Speaker 3: revoking their status from the SEVP Student and Exchange Visitor Program.
23:45
Speaker 3: But that doesn't make them out of the woods quite yet,
23:49
Speaker 3: because there's a separate issue, which is what about visas
23:53
Speaker 3: for new students. And here the Trump administration actually did
23:57
Speaker 3: something very powerful. If you remember the old travel ban,
24:03
Speaker 3: and potentially people have talked about, you know, the Muslim
24:06
Speaker 3: ban or whatever else, and the COVID bans. That statue
24:10
Speaker 3: I NA two twelve f that allows the president to
24:12
Speaker 3: ban people. The President actually issued a ban for Harvard
24:16
Speaker 3: and said that nobody who was applying for a visa
24:19
Speaker 3: abroad from Harvard could actually get a visa. So he
24:23
Speaker 3: issued a ban under that, and that's in this separate litigation.
24:28
Speaker 3: And the judge has that currently blocked for a couple
24:31
Speaker 3: more days, but didn't want to extend that block quite
24:36
Speaker 3: yet fully. And so Harvard's got two separate problems, which is,
24:40
Speaker 3: they have this system, which at the moment, the district
24:44
Speaker 3: court judges said they have to be allowed to remain
24:47
Speaker 3: in the system, but they have this separate ban that
24:51
Speaker 3: may still be allowed to go into effect that actually
24:54
Speaker 3: allows the federal government to ban anybody associated with Harvard
24:59
Speaker 3: from getting visa time re enter or enter in the
25:02
Speaker 3: first place the United States.
25:04
Speaker 1: And Harvard's got a lot more problems from the Trump
25:07
Speaker 1: administration than these cases. Thanks so much, Leon, as always,
25:11
Speaker 1: that's Leon Fresco of Honda Knight And in Supreme Court
25:16
Speaker 1: news late this afternoon, a divided court lifted a Massachusetts
25:21
Speaker 1: judges order that required the administration to give people ten
25:26
Speaker 1: days notice and a chance to object before they're deported
25:30
Speaker 1: to countries other than their home countries. The Trump administration
25:34
Speaker 1: had made an emergency request, saying this order usurp presidential
25:39
Speaker 1: authority and interfered with diplomatic efforts, and the court's six
25:44
Speaker 1: conservative justices granted the administration's request without issuing an opinion
25:49
Speaker 1: explaining their reasoning, but the decision to a scathing descent
25:53
Speaker 1: from liberal Justice Sonya so to Mayor, who wrote that
25:57
Speaker 1: the court's action exposes thousands to the risk of torture
26:01
Speaker 1: or death. The court's two other liberal justices joined in
26:04
Speaker 1: her descent, coming up Trump's judiciary picks this is Bloomberg.
26:11
Speaker 1: Republican efforts to restrict the power of the courts ran
26:15
Speaker 1: headlong into the power of the Senate Parliamentarian. In the
26:19
Speaker 1: wake of the many federal court rulings that have stymied
26:23
Speaker 1: the Trump agenda, Senate Republicans added a provision restricting the
26:27
Speaker 1: power of judges to block federal government policies with injunctions
26:32
Speaker 1: or restraining orders. It would require anyone seeking an injunction
26:36
Speaker 1: to pay a fee that would be equal to the
26:38
Speaker 1: costs and damages sustained by the federal government if it
26:42
Speaker 1: were to ultimately win the case. But the Senate Parliamentarian
26:46
Speaker 1: ruled that that provision does not comply with the Chamber's
26:50
Speaker 1: Bird Rule, which essentially bars policy matters from being addressed
26:54
Speaker 1: in the budget reconciliation process. Joining me is an expert
26:58
Speaker 1: in the federal judiciary, Mary Carl Tobias, a professor at
27:02
Speaker 1: the University of Richmond Law School. Carl, is it the
27:05
Speaker 1: role of Congress to tell the judges how to run
27:08
Speaker 1: their courtrooms?
27:09
Speaker 4: Well, it probably is, because there's a lot of possibilities
27:17
Speaker 4: for the Congress to do that as opposed to the
27:22
Speaker 4: courts doing it, And they can make rules that govern,
27:28
Speaker 4: but by and large they defer to the Judicial Conference,
27:32
Speaker 4: you know, the policy making body and its rules committees
27:36
Speaker 4: to do that type of work. But if you look
27:39
Speaker 4: at Title twenty eight USC, there are lots of provisions
27:44
Speaker 4: they make for the fields courts, the district courts, their
27:47
Speaker 4: procedures and their members and whether they have to live
27:50
Speaker 4: in the district or the appeals court, all of that.
27:54
Speaker 4: So there's a long tradition of that. At the same time,
27:58
Speaker 4: as I think it's a sort of cooperative arrangement. And
28:01
Speaker 4: so if the Judicial Conference or judges would be uncomfortable
28:06
Speaker 4: with certain kinds of procedural requirements, they may be able
28:11
Speaker 4: to convince Congress not to adopt those, and so I
28:13
Speaker 4: think there is a pretty good relationship there. And I
28:17
Speaker 4: know lots of judges are amenable to, you know, testifying
28:21
Speaker 4: and that type of thing and working on the committees
28:23
Speaker 4: that the Chief Justice appoints. So on this one, I
28:27
Speaker 4: think the reason when people can differ as to who
28:30
Speaker 4: really should should be doing this, and I think Congress
28:34
Speaker 4: could do it if it wanted to, but it ought
28:36
Speaker 4: to be consulting with the judges too, in their best
28:40
Speaker 4: sense of that.
28:41
Speaker 1: The Parliamentarian said that the provision would be subject to
28:45
Speaker 1: the Bird rule, so subject to a sixty vote threshold,
28:49
Speaker 1: so that probably is going nowhere, yes.
28:53
Speaker 4: And I think that was an appropriate judgment that she
28:56
Speaker 4: made in that context, because as I understand, it supposed
29:00
Speaker 4: to be restricted to budgetary items, and it doesn't seem
29:03
Speaker 4: like that's a budgetary item. So I think her call
29:07
Speaker 4: on that was correct.
29:09
Speaker 1: Let's talk about in general about Trump's nominees to the
29:15
Speaker 1: federal courts. Is he looking for young lawyers with experience
29:20
Speaker 1: on issues that are important to the conservative movement, like abortion,
29:26
Speaker 1: transgender rights, people who've worked in that area.
29:29
Speaker 4: Well to some extent. Yes, we don't have much to
29:32
Speaker 4: go on so far. He started a little slowly, as
29:36
Speaker 4: Carl Holt said in the New York Times when the
29:39
Speaker 4: first group came out. But what we have is, I
29:43
Speaker 4: think now two for the appeals courts nominees, you know,
29:47
Speaker 4: this week, actually one of them will have a hearing,
29:50
Speaker 4: the other one will be voted out of committee or
29:52
Speaker 4: at least discussed. And then they're nine for the district courts,
29:57
Speaker 4: and five of them, I believe for Florida have a
30:00
Speaker 4: hearing on Wednesday. Already the four for the Missouri district
30:05
Speaker 4: vacancies have had their hearing and they will be up
30:09
Speaker 4: for a committee discussion and vote on Thursday. So there's
30:13
Speaker 4: a lot of activity this week about Trump's nominees, and
30:18
Speaker 4: I think it's fair to say that they are only
30:20
Speaker 4: six of palet vacancies right now. Those first two are
30:24
Speaker 4: clearly conservative, and one of them, Whitney Hermanndorff for the
30:30
Speaker 4: sixth Circuit Tennessee vacancy clerk for three of the justices
30:35
Speaker 4: and is right now in the Attorney General's office in Tennessee.
30:40
Speaker 4: She had a strong hearing, I thought, and answered questions
30:45
Speaker 4: pretty directly, and so she may get a committee vote
30:48
Speaker 4: on Thursday. Then, as I understand it, Emil Bauvay for
30:52
Speaker 4: the third Circuit New Jersey vacancy will be up on
30:57
Speaker 4: the pan on Wednesday, So that'll be interesting to see.
31:01
Speaker 1: Are the nominees avoiding directly answering whether Biden won the
31:07
Speaker 1: election to some extent?
31:09
Speaker 4: Yes, I mean especially I think there's been a lot
31:12
Speaker 4: of writing about the Missouri nominees. Apparently almost all of
31:17
Speaker 4: them were not as forthcoming as people might like about
31:22
Speaker 4: January sixth, and so that was an interesting dynamic about
31:28
Speaker 4: whether Biden had actually won the election, and that's about
31:31
Speaker 4: all they would say is he was the president and
31:34
Speaker 4: people were critical of them. Certainly the legal press was
31:38
Speaker 4: that may be thrashed out then on Thursday when they're
31:41
Speaker 4: up for discussion and vote.
31:43
Speaker 1: Some progressive advocacy groups have complained about the Senate Democrats
31:50
Speaker 1: and the way they're not questioning these nominees aggressively enough,
31:56
Speaker 1: not like the Republicans did when there were Democratic nominees,
31:59
Speaker 1: and apparently only six of the panels ten Democrats posed
32:03
Speaker 1: any questions of the first nominee. Are Democrats not taking
32:07
Speaker 1: this seriously enough because they don't have the votes.
32:11
Speaker 4: Well, I did see some of that in the legal press.
32:15
Speaker 4: And part of the problem, of course is they're in
32:18
Speaker 4: a minority, and the committee line up is twelve Republicans
32:23
Speaker 4: and ten Democrats, and people are spread fairly thin on
32:27
Speaker 4: the committees, and so they may have had other commitments.
32:30
Speaker 4: But I think it's a fair criticism to say it's
32:34
Speaker 4: important to ask difficult questions in committee meetings and in hearing,
32:40
Speaker 4: and I think they'll do better going forward. Certainly the
32:44
Speaker 4: ranking members. Senator Durbin has been very straightforward and I
32:51
Speaker 4: think asking lots of questions, as have a number of others.
32:55
Speaker 4: But you're right there was I think one hearing where
32:58
Speaker 4: a number of the Democrats either weren't there or didn't
33:02
Speaker 4: ask questions.
33:03
Speaker 1: We've talked before about Republican Senator Kennedy, who often asked
33:07
Speaker 1: questions basic legal questions of the nominees, and not only
33:13
Speaker 1: does that question get a lot of hits on YouTube,
33:16
Speaker 1: but at times he's caught judicial nominees not knowing some
33:19
Speaker 1: basic concepts, and I'm wondering if Democrats should start doing that.
33:25
Speaker 4: Yes, I think that is a fair question, and I
33:27
Speaker 4: think they've Democrats opposed some of them and Kennedy, to
33:31
Speaker 4: his credit, I think, did with Trump one point zero nominees,
33:36
Speaker 4: and I think was actually responsible for a couple of
33:40
Speaker 4: them deciding not to go forward. We'll see if he's
33:45
Speaker 4: going to do the same thing with these nominees this
33:48
Speaker 4: time around, though, I would say in watching the Missouri nominees,
33:54
Speaker 4: they all I think were people who had substantial experience
33:59
Speaker 4: in the attorney General's off in that state, and I
34:02
Speaker 4: think for the district court they would know their way
34:06
Speaker 4: around those procedures, and we're familiar with them. I think
34:10
Speaker 4: on that score they were pretty good. We'll see about
34:14
Speaker 4: the Florida ones, but most of them are state sitting
34:18
Speaker 4: state judges or want to magistrate judge in the federal system,
34:22
Speaker 4: and that's what you want. I mean, the basis for nominating,
34:27
Speaker 4: confirming somebody for the district bench is familiarity, right, and
34:31
Speaker 4: competence the ability to move cases. So far, I think
34:35
Speaker 4: people may disagree with the political views of some of
34:39
Speaker 4: the district nominees, but they do have experience in litigating cases,
34:45
Speaker 4: and so I think on the competence front, they probably
34:50
Speaker 4: are relatively strong, and maybe stronger than one point zero
34:55
Speaker 4: district nominees so far. But we haven't seen them all.
35:00
Speaker 4: They're you know, thirty nine or so current vacancies that
35:03
Speaker 4: need to be filled in the district level.
35:07
Speaker 1: Trump has put all his personal lawyers, the top personal
35:11
Speaker 1: lawyers that defended him, in different positions in the administration.
35:15
Speaker 1: And Emil Bovey has gotten a lot of criticism for
35:19
Speaker 1: his handling of the Eric Adams case. And now he's
35:23
Speaker 1: up for a seat on the Third Circuit.
35:26
Speaker 4: Yes, and I think Democrats have been and the legal
35:31
Speaker 4: press have been pretty much opposed to his nomination because
35:37
Speaker 4: of what happened with the Eric Adams case, and also
35:43
Speaker 4: what happened at the Justice Department with the Eric Adams case.
35:47
Speaker 4: Of course, the whole number of Southern District of New
35:49
Speaker 4: York nominees, including Danielle Sessoon, who was the acting US
35:54
Speaker 4: Attorney for the Southern District, they resigned rather than follow
35:59
Speaker 4: the orders from Bouve, and he forced all of that.
36:03
Speaker 4: And then in headquarters back in DC, he was instrumental
36:09
Speaker 4: in dismantling the Public Integrity Unit basically which checks on
36:15
Speaker 4: all of the prosecutions to be pursued around the country
36:19
Speaker 4: to be sure that they're solid cases. And so his
36:22
Speaker 4: involvement on those front has troubled certainly Democrats and probably
36:27
Speaker 4: some Republicans.
36:29
Speaker 1: But does it seem like any Trump judicial nominee is
36:32
Speaker 1: going to get through this committee and the Senate.
36:35
Speaker 4: Well, we'll see. We'll see how he does in the hearing,
36:38
Speaker 4: and I would expect this also would be a test
36:41
Speaker 4: for Democrats to rigorously question him because there are issues
36:48
Speaker 4: that trouble them and I think may trouble some Republicans.
36:53
Speaker 4: So we could see how he answers those questions. That
36:57
Speaker 4: could tell us a lot weeks after that or so
37:01
Speaker 4: maybe late July there would be discussion and vote in committee.
37:06
Speaker 4: But you're right, as I said earlier, the twelve to
37:09
Speaker 4: ten majority that the Republicans have make it difficult for
37:13
Speaker 4: Democrats to do much about Trump's nominees. But this particular case,
37:19
Speaker 4: they may well be able to make a strong case
37:22
Speaker 4: based on very recent history that has been widely reported.
37:26
Speaker 4: Indj at the highest level.
37:29
Speaker 1: Are any circuits going to be flipped because of these Trump.
37:35
Speaker 4: Nominees, Well, I think the third circuit would be I
37:39
Speaker 4: don't know if flip is the right word, because I
37:41
Speaker 4: think they're pretty evenly divided right now. But if they
37:45
Speaker 4: were to fill the New Jersey seat and the Delaware
37:49
Speaker 4: seat there would be a majority of members in active
37:53
Speaker 4: service appointed by Republican presidents. They would have either one
37:58
Speaker 4: or I think maybe two vote majority on that court.
38:02
Speaker 4: But that's I think the only place as a first
38:05
Speaker 4: circuit vacancy. There's the sixth circuit vacancy, where the Republican
38:09
Speaker 4: appointees already have a majority. There's a California one. It
38:13
Speaker 4: won't change that because it's a Republican appointee who's stepping
38:17
Speaker 4: down or taking senior status, and so there are not
38:20
Speaker 4: many opportunities right now. And it's interesting because I think
38:24
Speaker 4: this is one of the longest periods that I think
38:26
Speaker 4: I can remember where no judges assume senior status over
38:30
Speaker 4: like the last two or three months. Very few.
38:34
Speaker 1: Well, we know why the judges appointed by Democrats are
38:36
Speaker 1: holding out, but I'm not sure why the judges appointed
38:39
Speaker 1: by Republicans are. Thanks so much, Carl. That's Professor Carl
38:43
Speaker 1: Tobias of the University of Richmond Law School. And that's
38:47
Speaker 1: it for this edition of the Bloomberg Law Show. Remember
38:50
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38:52
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38:55
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39:04
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