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Weekend Law: California v Trump & Senator Handcuffed · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:13
  Speaker 2: There were demonstrations in more than a dozen major cities
• 0:17
  Speaker 2: across the country this week over the Trump administration's immigration crackdown,
• 0:22
  Speaker 2: as ICE conducts high profile workplace raids. In response to
• 0:27
  Speaker 2: the protests in Los Angeles, President Trump deployed thousands of
• 0:31
  Speaker 2: Guard troops and hundreds of active duty Marines to the
• 0:34
  Speaker 2: city without the request of the state's governor.
• 0:38
  Speaker 3: If we weren't there, if we didn't bring in the
• 0:40
  Speaker 3: National and the Marines, and you would probably have a
• 0:44
  Speaker 3: city that was burning.
• 0:45
  Speaker 2: To the ground, just like it was a number of
• 0:48
  Speaker 2: months ago.
• 0:48
  Speaker 3: With the housing.
• 0:50
  Speaker 2: But California took Trump to court, saying his choice to
• 0:53
  Speaker 2: deploy the National Guard to police civilian communities is an expansive, dangerous,
• 0:59
  Speaker 2: concesent option of federal executive power, and on Thursday, federal
• 1:04
  Speaker 2: Judge Charles Pryor found that Trump's actions were illegal and
• 1:08
  Speaker 2: that the LA protests fell far short of the legal
• 1:11
  Speaker 2: requirements of a rebellion needed to justify a federal deployment.
• 1:17
  Speaker 2: He ordered Trump to return command of the guardsman to
• 1:20
  Speaker 2: California Governor Gavin Newsom.
• 1:22
  Speaker 4: He must work under the constraints as a constitutional officer
• 1:28
  Speaker 4: of the Constitution of the United States of America. That's
• 1:31
  Speaker 4: what this court order demands of the President of the
• 1:34
  Speaker 4: United States. He is not a monarch, he is not
• 1:37
  Speaker 4: a king, and he should stop acting like one.
• 1:40
  Speaker 2: But just a few hours later, a federal appeals court
• 1:43
  Speaker 2: temporarily blocked the judge's order, saying it will hold a
• 1:46
  Speaker 2: hearing on the matter on Tuesday. Joining me is immigration
• 1:50
  Speaker 2: law expert Leon Fresco, a partner at Holland and Knight
• 1:53
  Speaker 2: and the former head of the Office of Immigration Litigation
• 1:57
  Speaker 2: in the Obama administration.
• 1:59
  Speaker 5: Leon J.
• 2:00
  Speaker 2: Judch Charles Bryer, who by the way, is Justice Stephen
• 2:03
  Speaker 2: Bryer's brother, wrote this scathing opinion, finding that the president
• 2:08
  Speaker 2: acted illegally in deploying the troops, exceeding both his statutory
• 2:13
  Speaker 2: authority and violating the Tenth Amendment. Tell us how he
• 2:17
  Speaker 2: came to that conclusion.
• 2:19
  Speaker 1: So there's a couple of things. The first was that
• 2:23
  Speaker 1: President Trump said that he had authority under ten USC.
• 2:27
  Speaker 1: Section twelve four h six, which provides that the president
• 2:31
  Speaker 1: can call federal service members and units of the National
• 2:34
  Speaker 1: Guard of any state when the United States is either
• 2:38
  Speaker 1: invaded or is in danger of invasion, or there's a
• 2:41
  Speaker 1: rebellion or a danger of rebellion, or most notably, that
• 2:45
  Speaker 1: the president is unable with the regular forces to execute
• 2:49
  Speaker 1: the laws of the United States. And so that was
• 2:51
  Speaker 1: the real argument that was being made there, And what
• 2:56
  Speaker 1: Judge Briar really tried to get a grip on and
• 3:01
  Speaker 1: try to figure out was, there's two questions here. One,
• 3:05
  Speaker 1: did you violate that statue because there really wasn't any
• 3:09
  Speaker 1: type of rebellion or an inability to enforce the law.
• 3:13
  Speaker 1: But second, is there some inherent authority that the president
• 3:17
  Speaker 1: has that makes these kinds of questions unreviewable? Because even
• 3:22
  Speaker 1: if this was a dispute about the rebellion or not,
• 3:26
  Speaker 1: the Trump administration was saying, this is our decision, this
• 3:30
  Speaker 1: is committed to our discretion. It's not for the courts
• 3:33
  Speaker 1: to review this. And so this is where Bryer said
• 3:36
  Speaker 1: two different points. One, on the statue, there was no
• 3:39
  Speaker 1: consultation with the governor, which is required under the statue.
• 3:43
  Speaker 1: Congress wrote that there has to be meaningful consultation with
• 3:47
  Speaker 1: the governor before taking over the state's national guard. And secondly,
• 3:53
  Speaker 1: there wasn't this rebellion or invasion or inability.
• 3:57
  Speaker 6: To enforce the law.
• 3:59
  Speaker 1: So nothing justified the federalization.
• 4:02
  Speaker 6: Of the National Guards. And this is the kind of.
• 4:05
  Speaker 1: Determination that can be reviewed. And if you can't review
• 4:11
  Speaker 1: this determination, then there is no check of any kind
• 4:15
  Speaker 1: on the President being able to deploy the National Guard
• 4:18
  Speaker 1: for any purpose, at any time, for any reason. And
• 4:21
  Speaker 1: that's what really was animating a lot of his concerns
• 4:25
  Speaker 1: in the ruling during the oral arguments, and I think
• 4:29
  Speaker 1: that's going to be really the main question that is
• 4:33
  Speaker 1: grappled with both by the Ninth Circuit and by the
• 4:35
  Speaker 1: Supreme Court ultimately, this question of is this really unreviewable?
• 4:40
  Speaker 1: And if it's unreviewable, what does that mean moving forward
• 4:44
  Speaker 1: for giving the president authority to mobilize federal troops whatever
• 4:48
  Speaker 1: the presidencyes fits.
• 4:50
  Speaker 2: So we've talked before about the court's deferring to the
• 4:54
  Speaker 2: president's decisions on foreign policy and national security, but Judge
• 4:59
  Speaker 2: Bryant said this case involved domestic use of military force,
• 5:04
  Speaker 2: on which the courts can certainly weigh in. Is that
• 5:07
  Speaker 2: the line that he found.
• 5:09
  Speaker 1: To correct the limiting principle that at the end of
• 5:12
  Speaker 1: the day led the judge to believe this is reviewable
• 5:16
  Speaker 1: is the fact that if this was something that in
• 5:19
  Speaker 1: some way implicated foreign policy or the use of the
• 5:24
  Speaker 1: military to deter an actual foreign invasion happening, that might
• 5:30
  Speaker 1: be something where the courts have no role. But here
• 5:36
  Speaker 1: the fact that the fact pattern was in all four corners.
• 5:40
  Speaker 6: Limited to a domestic dispute.
• 5:43
  Speaker 1: That led the judge to say, in this instance, where
• 5:47
  Speaker 1: you have a federal military action in a domestic dispute,
• 5:52
  Speaker 1: the courts have to have an ability to analyze this
• 5:56
  Speaker 1: and to be able to have some constraints on presidential authority. Otherwise,
• 6:02
  Speaker 1: if it were to be committed to a discretion of
• 6:06
  Speaker 1: the president, would mean that the president could just employ
• 6:09
  Speaker 1: these federal troops at any time for any purpose, and
• 6:12
  Speaker 1: he viewed that as unacceptable under the Constitution. Now, I
• 6:16
  Speaker 1: think the Trump administration would make some arguments, which they've
• 6:19
  Speaker 1: done in is that the influx of foreign nationals.
• 6:22
  Speaker 6: Is itself an invasion.
• 6:24
  Speaker 1: But the courts, other than one judge in one of
• 6:27
  Speaker 1: the cases in Pennsylvania, the courts so far have not
• 6:31
  Speaker 1: actually characterized the influx of foreign nationals during the Biden
• 6:35
  Speaker 1: administration that as an actual invasion in the sense that
• 6:39
  Speaker 1: the folks that entered are there to overthrow the government
• 6:42
  Speaker 1: of the United States.
• 6:43
  Speaker 2: Just within hours of Briar's decision, the Trump administration went
• 6:47
  Speaker 2: to the Ninth Circuit and a panel of judges consisting
• 6:51
  Speaker 2: of two Trump appointees and one Biden appointee. But Judge
• 6:55
  Speaker 2: Briar's decision on hold and they're going to have a
• 6:58
  Speaker 2: hearing on Tuesday. How do you think the Ninth Circuit
• 7:01
  Speaker 2: did that when Judge Bryer had found irreparable harm to
• 7:05
  Speaker 2: the city and that the presence of troops in LA
• 7:09
  Speaker 2: was itself inflaming tensions with protesters.
• 7:13
  Speaker 1: Well, there was an administray to stay put until Friday
• 7:18
  Speaker 1: for the district Court, and so all that was really
• 7:21
  Speaker 1: done by the Ninth Circuit. And this was a unanimous
• 7:25
  Speaker 1: decision to the extent that it's a one page decision.
• 7:27
  Speaker 1: But nevertheless, there wasn't a dissent from this administrative stay.
• 7:32
  Speaker 1: Is they just basically held this in obeyance to have
• 7:35
  Speaker 1: a hearing on Tuesday and then they might make a
• 7:37
  Speaker 1: decision shortly thereafter. But I do think there is probably
• 7:43
  Speaker 1: some view of the events going on in the world
• 7:46
  Speaker 1: right now and some desired to maybe keep the status
• 7:50
  Speaker 1: quo for the weekend.
• 7:51
  Speaker 6: Just in case, with all.
• 7:53
  Speaker 1: The conflagrations going on everywhere, it might not necessarily be
• 7:56
  Speaker 1: a good thing to be having civil unrest in Los Angeles.
• 8:00
  Speaker 1: So I think there might be some prudential consideration there
• 8:03
  Speaker 1: in keeping the stay over the weekends. But you know,
• 8:07
  Speaker 1: hard to read minds, but I think that probably is
• 8:11
  Speaker 1: underlying some of this.
• 8:13
  Speaker 2: There are concerns that President Trump might send troops to
• 8:17
  Speaker 2: other cities because his June seventh Proclamation is broad and
• 8:23
  Speaker 2: allows troops to be sent anywhere protests are likely to occur.
• 8:27
  Speaker 2: Will Judge Bryar's order, if upheld on appeal, have any impact.
• 8:33
  Speaker 1: So the order itself certainly provides a president for other
• 8:39
  Speaker 1: states and other cities to actually look at this order
• 8:42
  Speaker 1: and say two things. One that there is court jurisdiction
• 8:47
  Speaker 1: in order to review this. And I think that's going
• 8:49
  Speaker 1: to be the key argument to the extent that that
• 8:52
  Speaker 1: gets to the Supreme Court is forget about interpreting the statues.
• 8:55
  Speaker 1: Is there actually jurisdiction to interpret the statues? And then
• 9:00
  Speaker 1: once you start getting to interpreting the statue, then the
• 9:03
  Speaker 1: administration is in a bit of a more difficult pickle here,
• 9:07
  Speaker 1: because then you have to decide is there a rebellion,
• 9:10
  Speaker 1: is there an invasion?
• 9:11
  Speaker 6: Is there an inability to enforce the law?
• 9:14
  Speaker 1: And there at the moment, the factual record on that
• 9:18
  Speaker 1: is not as full sum for the administration as they
• 9:22
  Speaker 1: might want going into court, and so they would definitely
• 9:25
  Speaker 1: need more than what happened in Los Angeles to be
• 9:28
  Speaker 1: able to deploy the National Guard in the military, especially
• 9:32
  Speaker 1: to enforce ice operations. But they might not need anything
• 9:36
  Speaker 1: at all if the Supreme Court ends up saying that
• 9:39
  Speaker 1: this isn't something that's reviewable. But I think every court's
• 9:42
  Speaker 1: going to have the same struggle that just Briar ed,
• 9:46
  Speaker 1: which is it makes sense in one sense to defer
• 9:49
  Speaker 1: to the administration because these are very serious questions, These
• 9:52
  Speaker 1: are very difficult issues.
• 9:54
  Speaker 6: But if you have complete.
• 9:56
  Speaker 1: Deference, what is to stop a very arbitraryan a precious
• 10:00
  Speaker 1: application of this for pretty much any reason.
• 10:03
  Speaker 6: And so that's where this gets complicated.
• 10:06
  Speaker 2: The last time a president activated a state's National Guard
• 10:10
  Speaker 2: without a request from the governor was in nineteen sixty five,
• 10:14
  Speaker 2: when President Lyndon Johnson used the Guard to protect civil
• 10:18
  Speaker 2: rights demonstrators in Alabama after the governor refused to do so.
• 10:23
  Speaker 2: Some are pointing to that as precedent for Trump's actions here.
• 10:28
  Speaker 1: Well, I think the problem is there you would say
• 10:31
  Speaker 1: the same thing, which was there was an inability to
• 10:33
  Speaker 1: enforce the federal law. The states did not want to
• 10:36
  Speaker 1: enforce the federal law, and so you needed to actually
• 10:40
  Speaker 1: have the National Guard there to enforce the federal law.
• 10:43
  Speaker 1: Here there is an assertion that the states are not
• 10:47
  Speaker 1: enforcing the federal law. But the problem is, in these
• 10:49
  Speaker 1: immigration contexts, the states don't enforce the federal law. They're
• 10:53
  Speaker 1: not supposed to round people up and deport them, so
• 10:57
  Speaker 1: that's just for the federal government to do. Now, if
• 11:00
  Speaker 1: the state police was actually blocking the ability to find
• 11:07
  Speaker 1: people for deportation, I think the President would be in
• 11:10
  Speaker 1: a much stronger ground here, But they would need that
• 11:13
  Speaker 1: sort of evidence to be presenting the court in this context,
• 11:16
  Speaker 1: which is here we are just trying to have ice
• 11:20
  Speaker 1: agents enforce the law, and we're encountering actual resistance from
• 11:25
  Speaker 1: state and local officials to our ability to do this,
• 11:29
  Speaker 1: as opposed to verbal you know, hey, go do this,
• 11:31
  Speaker 1: which is you know most of what you see. If
• 11:34
  Speaker 1: there was actual impeditent and roadblock, then I do think
• 11:38
  Speaker 1: this argument would be a much stronger of the administration's part.
• 11:41
  Speaker 2: Stay with me. Leon. Coming up next, I'll continue this
• 11:44
  Speaker 2: conversation with Leon Fresco. We'll discuss why Senator Alex Paedilla
• 11:50
  Speaker 2: of California was forcibly removed from the Homeland Security Secretary's
• 11:54
  Speaker 2: press conference and handcuffed. I'm June Grosso and you're listening
• 11:58
  Speaker 2: to Bloomberg. This week, President Trump ordered the deployment of
• 12:02
  Speaker 2: about four thousand National Guard troops and seven hundred marines
• 12:07
  Speaker 2: to Los Angeles following protests that have been concentrated in
• 12:11
  Speaker 2: a few blocks downtown over his stepped up enforcement of
• 12:15
  Speaker 2: immigration laws. And on Thursday, as lawyers for the state
• 12:19
  Speaker 2: and the federal government were arguing in La federal court
• 12:23
  Speaker 2: about whether the President had overstepped his authority by deploying
• 12:27
  Speaker 2: the National Guard without the governor's request, in the Federal Building,
• 12:31
  Speaker 2: the senior US Senator from California, Alex Paedia, was forcibly
• 12:36
  Speaker 2: removed from the press conference of Homeland Security Secretary Christy
• 12:41
  Speaker 2: Nome as he interrupted her to try to ask a question.
• 12:44
  Speaker 1: I have a question.
• 12:45
  Speaker 7: The secretary.
• 12:48
  Speaker 2: Of the senator was pushed from the room by FBI
• 12:52
  Speaker 2: agents and Secret Service, who then forced him to the
• 12:55
  Speaker 2: ground in the hallway outside and handcuffed him.
• 12:59
  Speaker 7: If this is how the Department of homett Security responds
• 13:03
  Speaker 7: to a senator with a question, you can only imagine
• 13:09
  Speaker 7: what they're doing to farm workers, to cuts to day labors.
• 13:15
  Speaker 2: I've been talking to immigration law expert Leon Fresco, a
• 13:19
  Speaker 2: partner at Hollanda Knight. Leon, let's put this incident with
• 13:22
  Speaker 2: Senator Padilla in context. In the last two months, there
• 13:27
  Speaker 2: have been arrests of a Wisconsin judge, a New Jersey congresswoman,
• 13:32
  Speaker 2: and a California union leader, all with regard to immigration
• 13:36
  Speaker 2: issues and the borders are. Tom Holman has even threatened
• 13:40
  Speaker 2: to arrest the governor of California for obstructing immigration enforcement,
• 13:45
  Speaker 2: and the President said that would be great. And now
• 13:48
  Speaker 2: we have this handcuffing of a US senator. Is this
• 13:51
  Speaker 2: an attempt to try to intimidate officials, to warn them
• 13:55
  Speaker 2: about interfering with the ICE crackdown?
• 13:58
  Speaker 1: Well, I think there's a bunch of points that all
• 14:00
  Speaker 1: have to be separated factually and contextually. There is, on
• 14:04
  Speaker 1: one side of the spectrum a scenario whereby ICE is
• 14:08
  Speaker 1: in the middle of an operation and there's some official
• 14:11
  Speaker 1: who does something that makes it so that that operation
• 14:15
  Speaker 1: is not successful. So if you had the judge who
• 14:18
  Speaker 1: escorts the person that ICE is looking for outside of
• 14:22
  Speaker 1: a different door so that ICE can't find them, you
• 14:25
  Speaker 1: can say that that's harboring or concealing, because that statute
• 14:29
  Speaker 1: is very broad and pretty much any assistance.
• 14:32
  Speaker 6: Like that that you give to someone who you.
• 14:34
  Speaker 1: Know is in the country illegally, you are violating the statue.
• 14:40
  Speaker 1: So that's one scenario. Then you have the other scenario.
• 14:44
  Speaker 1: The two things that have happened, one with the congresswoman
• 14:47
  Speaker 1: from New Jersey in the detention facility and now Senator Pania.
• 14:52
  Speaker 1: These are very complicated because we don't have anybody with
• 14:55
  Speaker 1: clean hands in the sense of you have in the
• 14:58
  Speaker 1: video Senator Pania coming into this press conference. You have
• 15:02
  Speaker 1: Secretary Nomes speaking and he's speaking over her, and he's
• 15:07
  Speaker 1: walking toward her direction, and it's speaking over her. It's
• 15:10
  Speaker 1: not like he waits till there's a pause to ask
• 15:12
  Speaker 1: a question. He's verbally interrupting her press conference. But then
• 15:17
  Speaker 1: you had that dealt with in a manner where it's
• 15:20
  Speaker 1: not just that he's taken out of the room and
• 15:22
  Speaker 1: the door is closed. Let's say, but he's taken out
• 15:24
  Speaker 1: of the room, he's put to the floor, and he's handcuffed,
• 15:28
  Speaker 1: and so there's the argument there about excessive force and
• 15:30
  Speaker 1: whether any of that was necessary, and those are going
• 15:34
  Speaker 1: to be complicated issues. I don't think much is going
• 15:37
  Speaker 1: to happen. I don't think the federal government's going to
• 15:40
  Speaker 1: prosecute any of the agents involved. I don't know what's
• 15:43
  Speaker 1: going to happen with regard to these escalations moving forward.
• 15:47
  Speaker 1: Ideally we would come toward some sort of pass forward
• 15:52
  Speaker 1: in this country where there's consensus on immigration.
• 15:56
  Speaker 2: Enforcement is part of this, the pressure on ice age
• 15:59
  Speaker 2: and to increase the rest to something like three thousand
• 16:03
  Speaker 2: a day, up from roughly six hundred and sixty a day.
• 16:06
  Speaker 1: You know, we're in months six now of this administration.
• 16:10
  Speaker 1: I think in months one, two, and three, where there
• 16:12
  Speaker 1: was this discussion about really focusing on criminal backgrounds first,
• 16:17
  Speaker 1: that was happening, and yes there might be some people
• 16:21
  Speaker 1: who were protesting, but those people were really on the
• 16:24
  Speaker 1: fringes because it's really hard to argue against supporting people
• 16:28
  Speaker 1: with criminal convictions. But I do think there needs to
• 16:31
  Speaker 1: be some discussion about this, and I even think the president,
• 16:34
  Speaker 1: to his credit, actually said that when he said in
• 16:38
  Speaker 1: a press conference this week that he was concerned that
• 16:40
  Speaker 1: enforcement might be affecting the farms and the hospitality industry,
• 16:46
  Speaker 1: and so there might be some opportunity here to provide
• 16:50
  Speaker 1: some guidance. And what I've heard from people in the
• 16:54
  Speaker 1: sphere who are more reasonable is, look, people with criminal
• 16:58
  Speaker 1: backgrounds and people who came in the last four years
• 17:01
  Speaker 1: during the period where there was this open border policy
• 17:06
  Speaker 1: of people coming through the border at hundreds of thousands
• 17:09
  Speaker 1: a month, that should be the focus. And then if
• 17:12
  Speaker 1: you're sort of here before twenty twenty, maybe you wouldn't
• 17:16
  Speaker 1: be a focus of the immigration enforcement. Something like that
• 17:19
  Speaker 1: I think would blower the tensions here while still giving
• 17:22
  Speaker 1: plenty of work that can occupy this administration for the
• 17:27
  Speaker 1: rest of the four years.
• 17:29
  Speaker 5: Yeah.
• 17:29
  Speaker 2: On Thursday, Trump did seem to be softening his stance
• 17:33
  Speaker 2: on undocumented farm workers and hospitality workers.
• 17:38
  Speaker 3: Our farmers are being hurt badly by you know, they
• 17:41
  Speaker 3: have very good workers. They've worked for him for twenty years.
• 17:44
  Speaker 3: They're not citizens, but they've turned out to be, you know, great,
• 17:49
  Speaker 3: and we're gonna have to do something about that.
• 17:51
  Speaker 2: I mean, is there a way to carve out certain
• 17:53
  Speaker 2: migrants who work on farms or in the hospitality industry.
• 17:57
  Speaker 1: That might be unseemly to right at exactly like that.
• 18:01
  Speaker 1: But there have been prosecutorial discretion memos both under the
• 18:04
  Speaker 1: Obama administration and the Biden administration. And in fact, there's
• 18:08
  Speaker 1: a Supreme Court case where the State of Texas challenge
• 18:11
  Speaker 1: the Biden administration prosecutorial discretion memo, and the Supreme Court
• 18:16
  Speaker 1: said that none of your business, State of Texas, the
• 18:19
  Speaker 1: Biden administration can have a prosecutorial discretion memo. So to
• 18:23
  Speaker 1: the extent that President Trump wants the AHS to have
• 18:27
  Speaker 1: such a prosecutorial discretion memo, yes, it could say we're
• 18:32
  Speaker 1: going to not focus on the farms and the hospitality industry.
• 18:36
  Speaker 1: But I think probably what would be well advised is
• 18:40
  Speaker 1: rather than just those very narrow carve outs, I think
• 18:42
  Speaker 1: it's about a larger sort of way.
• 18:47
  Speaker 6: To diffuse tensions.
• 18:48
  Speaker 1: And I think that that would probably be a memo
• 18:52
  Speaker 1: that said, yes, you can stick industries that you're concerned about.
• 18:55
  Speaker 1: But I think again, there's plenty of people for ICE
• 18:59
  Speaker 1: to put through.
• 18:59
  Speaker 6: The product says, if you.
• 19:00
  Speaker 1: Are limiting it to criminal non citizens and also people
• 19:05
  Speaker 1: who've arrived during the Biden administration. Let's say that's still
• 19:09
  Speaker 1: millions of people. You will not get to all of
• 19:11
  Speaker 1: those people, if that's what you focus on, and you
• 19:14
  Speaker 1: don't have to say, well, we won't one hundred percent
• 19:17
  Speaker 1: go after other people, but you can say those folks
• 19:19
  Speaker 1: will be deprioritized and will not be the subjects of
• 19:23
  Speaker 1: any affirmative operations. And I think that would do a
• 19:26
  Speaker 1: lot toward diffusing a lot of this tension, but still giving,
• 19:31
  Speaker 1: Like I said, plenty of work for the Trump administration
• 19:35
  Speaker 1: to do with regard to removal lean.
• 19:37
  Speaker 2: I want to talk for a moment about the case
• 19:39
  Speaker 2: of Mahmoud Khalil, who was a leader in the pro
• 19:42
  Speaker 2: Palestinian protests at Columbia and the first person arrested in
• 19:47
  Speaker 2: the Trump crackdown on student activism.
• 19:51
  Speaker 1: There are two grounds for trying to deport him. The
• 19:54
  Speaker 1: most important ground, the court said, is this statute, which
• 19:57
  Speaker 1: says that if the Secretary of State finds them that
• 20:00
  Speaker 1: your conduct would be detrimental to the United States foreign policy,
• 20:04
  Speaker 1: they can order your deportation. And what the court found
• 20:08
  Speaker 1: was that this provision is constitutionally void because it's too vague.
• 20:12
  Speaker 1: The vagueness doctor means that when you pass the law,
• 20:15
  Speaker 1: nobody knows how to implement the law in a way
• 20:18
  Speaker 1: where they.
• 20:19
  Speaker 6: Can follow it.
• 20:19
  Speaker 1: So suppose the Congress passed the law that said you
• 20:23
  Speaker 1: can't be out too late at night, what would that mean?
• 20:26
  Speaker 1: You would know what too late at night meant. Would
• 20:28
  Speaker 1: it mean eight pm, would it mean nine pm? Would
• 20:31
  Speaker 1: it mean ten pm? And so that would be void
• 20:33
  Speaker 1: for vagueness, so one would know. And it's the same
• 20:36
  Speaker 1: concept here. How do you know what speech you can
• 20:39
  Speaker 1: make that's going to make you subject to a policy
• 20:43
  Speaker 1: that says that you can be deported for violating the
• 20:46
  Speaker 1: foreign policy interests of the United States, And so unless
• 20:50
  Speaker 1: there's clearer guidance, given that's a too vague statute.
• 20:55
  Speaker 6: Now, the problem is.
• 20:56
  Speaker 1: There's two other big arguments that the government has. They're
• 20:59
  Speaker 1: saying that they're also trying to deport him because he
• 21:02
  Speaker 1: lied on his green card application, because he didn't disclose
• 21:05
  Speaker 1: that he had worked for the Syria Office and the
• 21:08
  Speaker 1: British Embassy in Bay Route. Also that he didn't disclose
• 21:11
  Speaker 1: that he worked at the United Nations Relief and Works
• 21:14
  Speaker 1: Agency for the Palestinian refugees. And he also didn't disclose
• 21:18
  Speaker 1: he was a member of the Columbia University Apartheid the
• 21:21
  Speaker 1: Best Group, and so all of these things would have
• 21:25
  Speaker 1: been informative in his green card application, and the fact
• 21:27
  Speaker 1: that he didn't disclose those leads him to also be
• 21:31
  Speaker 1: deportable on that and so that's one argument. And the second
• 21:33
  Speaker 1: argument is whether this habeas petition that was filed by
• 21:37
  Speaker 1: mister Khalil is actually the right for him to make
• 21:39
  Speaker 1: any of these arguments or whether he can only make
• 21:42
  Speaker 1: it in the removal process so that it would be
• 21:44
  Speaker 1: at the end if he's ordered to deport it, only
• 21:47
  Speaker 1: then could he make his argument. That's also very strong
• 21:50
  Speaker 1: argument that the government has, and so we're going to
• 21:52
  Speaker 1: have to see both of those before we see if
• 21:56
  Speaker 1: mister Khalil ultimately gets freed from dessension.
• 22:00
  Speaker 2: The New Jersey judge had ruled that the government couldn't
• 22:03
  Speaker 2: continue to hold him on that first ground, the foreign
• 22:06
  Speaker 2: policy ground, but on Friday, the government's submitted papers saying
• 22:10
  Speaker 2: that it could continue to hold him on the second
• 22:13
  Speaker 2: ground that he'd lied on his green card application. So
• 22:17
  Speaker 2: the judge refused to order his release, saying he hadn't
• 22:20
  Speaker 2: presented enough evidence that detention on those grounds was unlawful.
• 22:25
  Speaker 2: Is lying on your green card application enough to get
• 22:29
  Speaker 2: you deported?
• 22:30
  Speaker 1: I mean the can because given that he's not a citizen,
• 22:33
  Speaker 1: he doesn't have to be denaturalized, which is a very
• 22:36
  Speaker 1: long process that involves a federal court trial. That doesn't
• 22:39
  Speaker 1: need to happen, so well, the only thing that needs
• 22:41
  Speaker 1: to happen is he would need to be placed into
• 22:43
  Speaker 1: removal proceedings. And then when he's placed into removal proceedings,
• 22:47
  Speaker 1: the only thing that needs to happen there is that
• 22:50
  Speaker 1: an immigration judge needs to agree that he lied on
• 22:52
  Speaker 1: his green card application, and that basically that's going to
• 22:55
  Speaker 1: be an issue of materiality and so worthy three omissions
• 22:59
  Speaker 1: material they have changed something, And the only people that
• 23:03
  Speaker 1: are going to matter there are the immigration judge and
• 23:06
  Speaker 1: then the Board of Immigration Appeals, which is the administrative appeal,
• 23:10
  Speaker 1: and then maybe a Court of Appeals if it's ruled
• 23:13
  Speaker 1: that this is something that the courts have jurisdiction to review.
• 23:17
  Speaker 6: But that's it.
• 23:17
  Speaker 1: That's the only people. So this whole other issue of
• 23:20
  Speaker 1: the importance Marco Rubio determination and that statute and everything
• 23:24
  Speaker 1: else may end up getting shunted to the side, and
• 23:28
  Speaker 1: the real issue that he ends up getting removed for
• 23:30
  Speaker 1: may end up just being this application issue.
• 23:33
  Speaker 2: In your experience, do people often get removed for lying
• 23:37
  Speaker 2: on their green card application.
• 23:40
  Speaker 1: It's usually a proxy for something more serious, just like
• 23:44
  Speaker 1: it is here, which is they wouldn't say to you
• 23:48
  Speaker 1: four years after your green card application, Hey, you forgot
• 23:51
  Speaker 1: to mention that you were in the Elks Club from
• 23:54
  Speaker 1: November to January of twenty twelve. They're not going to
• 23:58
  Speaker 1: depart you for that, even though yes, if you were
• 24:00
  Speaker 1: a member of the l club, you have to mention it.
• 24:02
  Speaker 1: But they're not going to support you for that. But
• 24:04
  Speaker 1: usually what they're concerned about is if they have some
• 24:08
  Speaker 1: reason that they want to deport you, and they can
• 24:12
  Speaker 1: show look, this actually would have had a material impact
• 24:16
  Speaker 1: on your application, But they can't support you for any
• 24:18
  Speaker 1: other reason because you haven't.
• 24:19
  Speaker 6: Actually been convicted of a crime.
• 24:22
  Speaker 1: This would be a reason that they have used in
• 24:24
  Speaker 1: the past and could use in the future against people.
• 24:27
  Speaker 2: That seems like what might be happening here. Leon, thanks
• 24:30
  Speaker 2: so much for once again taking us through the maze
• 24:34
  Speaker 2: that is immigration law. That's Leon Fresco of Honda Night
• 24:39
  Speaker 2: Coming up. Trump gets a reprieve from a court order
• 24:42
  Speaker 2: blocking his tariffs. I'm June Grosso and you're listening to Bloomberg.
• 24:46
  Speaker 2: As President Donald Trump's trade war plays out in the headlines,
• 24:50
  Speaker 2: a legal battle is playing out in the courts over
• 24:53
  Speaker 2: his use of emergency powers to impose tariffs. Trump announced
• 24:57
  Speaker 2: the reciprocal tariffs on imports for from almost sixty countries
• 25:01
  Speaker 2: on April second.
• 25:03
  Speaker 3: In short, chronic trade deficits are no longer merely an
• 25:06
  Speaker 3: economic problem. They're a national emergency that threatens our security
• 25:11
  Speaker 3: and our very way of life. It's a very great
• 25:13
  Speaker 3: threat to our country, and for these reasons, starting tomorrow,
• 25:17
  Speaker 3: the United States will implement reciprocal tariffs on other nations.
• 25:22
  Speaker 2: Trump cited trade deficits with other countries and drug trafficking
• 25:26
  Speaker 2: at the border as national emergencies that allowed him to
• 25:30
  Speaker 2: invoke the International Emergency Economic Powers Act or IEPA to
• 25:35
  Speaker 2: impose tariffs by executive order. At least six lawsuits have
• 25:39
  Speaker 2: been filed challenging this first time use of AIPA to
• 25:43
  Speaker 2: impose tariffs, and the US Court of International Trade ruled
• 25:46
  Speaker 2: unanimously on May twenty eighth that Trump had exceeded his
• 25:50
  Speaker 2: authority and ordered the tariffs blocked. But this week the
• 25:54
  Speaker 2: US Court of Appeals for the Federal Circuit gave Trump
• 25:58
  Speaker 2: a reprieve, deciding that the tear tariffs can remain in
• 26:01
  Speaker 2: place until it designs the case. My guest is Jimmy Garula,
• 26:05
  Speaker 2: a professor at Notre Dame Law School. He's a former
• 26:08
  Speaker 2: federal prosecutor and was the under Secretary for Enforcement at
• 26:12
  Speaker 2: the Department of the Treasury during the George W. Bush administration. Jimmy,
• 26:16
  Speaker 2: why did the US Trade Court rule that AIPA doesn't
• 26:20
  Speaker 2: give Trump the authority to impose these tariffs.
• 26:24
  Speaker 5: Well, first, it's important to understand that there are really
• 26:27
  Speaker 5: two types of tariffs that are implicated in the US
• 26:32
  Speaker 5: Court of International Trades decision. So first, there are the
• 26:36
  Speaker 5: AIPA Fetanyl migration tariffs, and these pertain specifically to China, Mexico,
• 26:43
  Speaker 5: and Canada. And here President Trump has declared that there
• 26:47
  Speaker 5: is a national emergency, it's an unusual and extraordinary threat
• 26:52
  Speaker 5: to the national security, economy, and foreign policy of the
• 26:56
  Speaker 5: United States. And therefore his response after making that emergency
• 27:02
  Speaker 5: declaration is to impose tariffs against these three countries. The
• 27:06
  Speaker 5: second group of tariffs, or the worldwide retaliatory tariffs, And
• 27:12
  Speaker 5: there the unusual and extraordinary threat. You know, the national
• 27:16
  Speaker 5: emergency involves trade deficits, and this is much broader. It's
• 27:19
  Speaker 5: not limited to these three countries, you know, China, Mexico,
• 27:22
  Speaker 5: and Canada, but it extends to all of the US
• 27:25
  Speaker 5: trading partners. And the claim is that, oh, we've got
• 27:27
  Speaker 5: this trade deficit, this is an unusual and extraordinary threat.
• 27:31
  Speaker 5: It threatens the economy of the United States, and therefore
• 27:35
  Speaker 5: the response is the imposition of tariffs, you know, worldwide.
• 27:39
  Speaker 5: And so the Court of International Trade you know, struck
• 27:43
  Speaker 5: down both sets of tariffs. With respect to the fetanyl
• 27:47
  Speaker 5: migration tariffs, the court found that there wasn't a sufficient
• 27:52
  Speaker 5: nexus between the so called national emergency, the importation the
• 27:58
  Speaker 5: abuse of fetanyl, and tariffs. There just wasn't a sufficient nexus. Like,
• 28:03
  Speaker 5: if the emergency is drug trafficking, drug importation, then what's
• 28:07
  Speaker 5: the relationship between that and tariffs, And the court just
• 28:11
  Speaker 5: said there isn't a sufficient nexus between the two. And
• 28:15
  Speaker 5: IEPA just doesn't justify the use of tariffs in this way.
• 28:19
  Speaker 5: So again it's a statutory construction issue involving the interpretation
• 28:24
  Speaker 5: of the International Emergency Economic Powers Act With respect to
• 28:28
  Speaker 5: the second, the Worldwide retaliation tariffs have said that the
• 28:32
  Speaker 5: language an IEPA, which it authorizes a president to regulate
• 28:35
  Speaker 5: importation through economic stinctions the courses, does not confer unlimited
• 28:40
  Speaker 5: tariff authority on the president and therefore struck down that
• 28:44
  Speaker 5: set of tariffs as well.
• 28:46
  Speaker 2: So the appellate court is allowing Trump to keep the
• 28:50
  Speaker 2: tariffs in effect while it plans to hold arguments July thirty. First,
• 28:55
  Speaker 2: did it offer a reason for siding with the administration
• 28:59
  Speaker 2: at this It didn't.
• 29:01
  Speaker 5: In fact, if you look at the order, it's very short.
• 29:03
  Speaker 5: I think it's four pages, and so it's very conclusiony
• 29:06
  Speaker 5: in nature and doesn't really spell out the reasons why
• 29:10
  Speaker 5: it is basically blocking the nationwide permanent injunction on the tariffs,
• 29:16
  Speaker 5: but just said that it was warranted in this case.
• 29:18
  Speaker 5: One could reasonably speculate that the Pellet Court is just
• 29:22
  Speaker 5: concerned about the impact and the implications of the lower
• 29:25
  Speaker 5: court decision. I mean, if the tariffs are illegal and
• 29:29
  Speaker 5: therefore should be block pursuant to this permanent restraining order,
• 29:33
  Speaker 5: then it's going to just, you know, turn on its head.
• 29:37
  Speaker 5: You know, the Trump administration's policy, economic policy with respect
• 29:41
  Speaker 5: to foreign affairs, commercial trade, worldwide, And so I think
• 29:46
  Speaker 5: before the Court is willing to authorize this or permit
• 29:49
  Speaker 5: action that has such far reaching impact that it wants
• 29:54
  Speaker 5: to give the parties ample opportunity to fully brief and
• 29:58
  Speaker 5: litigate the issue, use for the Appellate Court to consider.
• 30:02
  Speaker 2: Those challenging the tariffs they seek an emergency appeal to
• 30:06
  Speaker 2: the Supreme Court. Has the Supreme Court ruled on IEPA before.
• 30:12
  Speaker 5: Yes, there have been some Supreme Court decisions interpreting, you know,
• 30:15
  Speaker 5: the scope of AEPA. But this specific issue of whether
• 30:19
  Speaker 5: IEPA authorizes the president to use tariffs as an economic
• 30:25
  Speaker 5: sanction in response to the national emergency, that's an issue
• 30:30
  Speaker 5: of first impression, and the reason being to that this
• 30:34
  Speaker 5: is the first time, you know, the use of tariffs
• 30:37
  Speaker 5: under IEPA by President Trump is the first time in
• 30:40
  Speaker 5: the history of AEPA, which was enacted by Congress in
• 30:43
  Speaker 5: nineteen seventy seven. It's the first time any president has
• 30:46
  Speaker 5: used IEPA to authorize the imposition of tariffs against any country,
• 30:51
  Speaker 5: let alone every trading partner of the United States. So
• 30:54
  Speaker 5: it's an issue of first impression.
• 30:56
  Speaker 2: You were under Secretary for Enforcement at the Department of
• 30:59
  Speaker 2: the Treasury dealing with AIPA. I mean, what was APA
• 31:02
  Speaker 2: used for.
• 31:03
  Speaker 5: It was used in a dramatically different situation than it's
• 31:08
  Speaker 5: being used today by the Trump administration. When I was
• 31:11
  Speaker 5: under secretary, President George W. Bush declared an emergency with
• 31:15
  Speaker 5: respect to foreign terrorist organizations and specifically al Qaeda that
• 31:19
  Speaker 5: was responsible for the nine to eleven terror attacks, and
• 31:22
  Speaker 5: that was the national emergency, the threatened national security, and
• 31:26
  Speaker 5: AEPA was used to block transactions between individuals that were
• 31:31
  Speaker 5: supporting al Qaeda directly or indirectly providing support to al Kaeda.
• 31:35
  Speaker 5: So it blocked transactions and it authorized the freezing of
• 31:39
  Speaker 5: any assets in the United States that were linked to
• 31:42
  Speaker 5: al Qaeda or its supporters or sympathizers. There was never
• 31:46
  Speaker 5: any attempt to impose economic sanctions against any country that, say,
• 31:51
  Speaker 5: was providing some assistance or support to al Qaeda. So
• 31:55
  Speaker 5: it was a very very different context and situation, and
• 31:59
  Speaker 5: tariffs never even came up as a thought for of
• 32:03
  Speaker 5: AEPA in that situation.
• 32:05
  Speaker 2: If he's allowed to use ayep in this way, how
• 32:08
  Speaker 2: much does that broaden his authority.
• 32:12
  Speaker 5: Well, that's a concern, and that was one of the
• 32:15
  Speaker 5: issues and points raised in the decision by the US
• 32:19
  Speaker 5: Court of International Trade that this would provide the president
• 32:23
  Speaker 5: just expansive authority to impose economic sanctions on countries. And further,
• 32:29
  Speaker 5: the court argue that, wait a second, there are statutes,
• 32:33
  Speaker 5: federal statutes that Congress has enacted that authorize the president
• 32:38
  Speaker 5: under very limited and focused circumstances to impose terrors on countries.
• 32:44
  Speaker 5: And so to give the president this type of sweeping
• 32:48
  Speaker 5: authority to use tariffs uner ap in this way would
• 32:50
  Speaker 5: render those statutes the NOTTI. I mean, it would really
• 32:54
  Speaker 5: undermine the purpose of those states. Why do we need
• 32:56
  Speaker 5: those statutes? They would become redundant and unnecessary. And so
• 33:00
  Speaker 5: there seems to be an inherent conflict between the president's
• 33:05
  Speaker 5: use of AIPA in this broadway that again would undermine
• 33:09
  Speaker 5: these existing statues that Congress has enacted for the specific
• 33:13
  Speaker 5: purpose of the president imposing tariffs and unique specific situations.
• 33:18
  Speaker 2: Yeah, and administration officials have you know, publicly downplayed the
• 33:22
  Speaker 2: impact of the Trade Court's decision, saying that most of
• 33:25
  Speaker 2: the tariffs can be imposed by other means. So then
• 33:28
  Speaker 2: why didn't they impose them by other means? Is it
• 33:31
  Speaker 2: because this is.
• 33:32
  Speaker 5: Quicker, Yeah, it's easier, it's easier. So to use AEPA
• 33:36
  Speaker 5: in this way, it provides the president much broader sweeping
• 33:40
  Speaker 5: authority with respect to the imposition of tariffs. These other
• 33:43
  Speaker 5: federal statutes are more nuanced, they're more focused, and they
• 33:49
  Speaker 5: are more restrictive in terms of, you know, when these
• 33:52
  Speaker 5: tariffs can be imposed and with respect to what types
• 33:55
  Speaker 5: of commercial transactions. And so I think that the Trump
• 33:59
  Speaker 5: administrayation has attempted to avoid, you know, the more nuanced, restrictive,
• 34:04
  Speaker 5: kind of more difficult method or authorization for imposing tariffs
• 34:08
  Speaker 5: under those statutes and said, why do we want to
• 34:10
  Speaker 5: go there. We've got AEPA. Let's just use AEPA and IEPA.
• 34:14
  Speaker 5: You know, we don't have to be concerned about, you know,
• 34:17
  Speaker 5: the narrow focus on specific commercial transactions, and we can
• 34:21
  Speaker 5: just impose these tariffs across the board with respect to
• 34:24
  Speaker 5: every country that were engaged in regulatory trade.
• 34:27
  Speaker 2: Do you think that the Appellate Court, after it hears
• 34:30
  Speaker 2: oral arguments, will affirm the US Court of International Trades
• 34:34
  Speaker 2: decision to block the tariffs.
• 34:37
  Speaker 5: I think there are some very compelling reasons for striking
• 34:41
  Speaker 5: down the tariffs under AEPA. And I think again it
• 34:45
  Speaker 5: comes down to a very kind of basic fundamental statutory
• 34:49
  Speaker 5: construction question, you know, does IEPA authorize these types of
• 34:53
  Speaker 5: economic sanctions tariffs? And then at the same time, well,
• 34:56
  Speaker 5: we've got these other federal statutes, so it's not as
• 34:59
  Speaker 5: if that A already is going to be removed from
• 35:01
  Speaker 5: the president altogether. He just has to do it the
• 35:04
  Speaker 5: right way. So that would be an argument in favor
• 35:07
  Speaker 5: of banning the tariffs under a EPA. You could still
• 35:10
  Speaker 5: do it Trump administration. You just have to do it
• 35:12
  Speaker 5: the right way through these other statutes that Congresses enacted
• 35:17
  Speaker 5: that deal specifically with tariffs, rather than AIPA, which says
• 35:21
  Speaker 5: nothing in the statutory text whatsoever about tariffs. The word
• 35:25
  Speaker 5: tariff is never mentioned once in i EPA, And so
• 35:28
  Speaker 5: I think it's a way in which there could be
• 35:30
  Speaker 5: kind of a compromise. You know, you can't use AIPA
• 35:32
  Speaker 5: for these purposes, but we're not saying that tariffs are illegal.
• 35:36
  Speaker 5: But you just have to do it the right way
• 35:38
  Speaker 5: through the use of these other federal statutes.
• 35:40
  Speaker 2: Is it time for Congress to get involved here?
• 35:43
  Speaker 5: Well, they could, you know, they could, of course. You know,
• 35:46
  Speaker 5: we're living in a world now where there's a very
• 35:49
  Speaker 5: divided Congress, and the Republican majority at the House is
• 35:54
  Speaker 5: razor thin, and so there's no guarantee that if Congress
• 35:58
  Speaker 5: decided to enact legislation to permit President Trump to do
• 36:05
  Speaker 5: what he's doing now under AEPA, that that would be enacted,
• 36:09
  Speaker 5: that you know, such a legislation would pass through the
• 36:12
  Speaker 5: House of Representatives with this very small minority that the
• 36:15
  Speaker 5: majority Republicans have at this time.
• 36:18
  Speaker 2: Does this legal fight over AEPA fit into the wave
• 36:23
  Speaker 2: of lawsuits over Trump executive orders that test the limits
• 36:28
  Speaker 2: of presidential authority.
• 36:29
  Speaker 5: We're seeing it time and time again. It's just the
• 36:32
  Speaker 5: president pushing the boundaries of executive authority, you know, beyond
• 36:37
  Speaker 5: reasonable limits. He wants to accumulate as much power in
• 36:40
  Speaker 5: the executive branch as possible, and he's looking for every
• 36:43
  Speaker 5: opportunity to do so. And so he's taking you know, statutes, regulations,
• 36:48
  Speaker 5: whatever it might be, and he's interpreting them in the broadest,
• 36:52
  Speaker 5: you know, kind of most unreasonable way to afford him
• 36:55
  Speaker 5: that authority and power. And really it's up to the
• 36:57
  Speaker 5: courts to provide that check on balance on that authority
• 37:01
  Speaker 5: because clearly, you know, Congress has abdicated its responsibilities and
• 37:05
  Speaker 5: is doing little or nothing on these issues.
• 37:08
  Speaker 2: Thanks so much for joining me, Jimmy and sharing your insights.
• 37:11
  Speaker 2: That's Professor Jimmy Garoule of Notre Dame Law.
• 37:14
  Speaker 8: School, and that's it for this edition of The Bloomberg
• 37:16
  Speaker 8: Law Show. Remember you can always get the latest legal
• 37:19
  Speaker 8: news on our Bloomberg Law Podcast. You can find them
• 37:22
  Speaker 8: on Apple Podcasts, Spotify, and at www dot Bloomberg dot com,
• 37:27
  Speaker 8: slash podcast slash Law, and remember to tune into The
• 37:30
  Speaker 8: Bloomberg Law Show every weeknight at ten pm Wall Street Time.
• 37:35
  Speaker 8: I'm June Grosso and you're listening to Bloomberg