Latest / Bloomberg Law / Weekend Law: DOE Dismantled, Afghan Reprieve & Mega Deals

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Weekend Law: DOE Dismantled, Afghan Reprieve & Mega Deals · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 2: And it sounds strange, doesn't it.
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Speaker 3: Department of Education. We're going to eliminate it, and everybody
0:14
Speaker 3: knows it's right.
0:15
Speaker 4: In March, President Trump signed an executive order to dissolve
0:19
Speaker 4: the Department of Education, which oversees billions of dollars in
0:23
Speaker 4: funding for everything from student loans to special needs and
0:27
Speaker 4: nutritional programs. Trump said that the essential services provided by
0:32
Speaker 4: the department will be picked up by other agencies and
0:36
Speaker 4: guess who else.
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Speaker 3: All we have to do is get the students to
0:40
Speaker 3: get guidance from the people that love them and cherish them,
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Speaker 3: including their parents, by the way, who will be totally
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Speaker 3: involved in their education along with the boards.
0:49
Speaker 4: Well. Twenty Democratic state attorneys general sued, arguing that the
0:53
Speaker 4: administration's actions to dismantle the DOE are illegal and unconstitutional
1:00
Speaker 4: because only Congress has the authority to eliminate the department.
1:04
Speaker 4: Here's New Jersey Attorney General Matthew Platkin.
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Speaker 5: They're hurting our kids to score cheap political points. And
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Speaker 5: I think for the eighty five percent of families in
1:12
Speaker 5: this country that rely on public education, this is an
1:15
Speaker 5: affront to all of us.
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Speaker 4: A federal judge in Boston agreed and said that the
1:20
Speaker 4: Trump purge would leave the department unable to perform duties
1:24
Speaker 4: required by the law. He used a preliminary injunction in May,
1:28
Speaker 4: blocking the administration from downsizing the department, But on Monday,
1:33
Speaker 4: a divided Supreme Court lifted that judge's order and allowed
1:37
Speaker 4: Trump to resume dismantling the DOE over a blistering dissent
1:42
Speaker 4: by the court's three liberals joining me is constitutional law
1:46
Speaker 4: expert David super, a professor at Georgetown Law. Trump can't
1:51
Speaker 4: officially eliminate the Department of Education, or any department, but
1:56
Speaker 4: can he effectively dismantle it?
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Speaker 2: He has dumb with the Department of Education. I don't
2:02
Speaker 2: think it's lawful. I don't even understand a plausible legal
2:07
Speaker 2: theory why it might be lawful. But he has certainly
2:10
Speaker 2: done that.
2:11
Speaker 4: Given the Court's previous rulings for Trump, especially last week's
2:15
Speaker 4: ruling that allowed the administration to begin mass firings at
2:19
Speaker 4: federal agencies, did this decision come as any surprise.
2:24
Speaker 2: This one did for several reasons. One is it came
2:28
Speaker 2: without any explanation at all. What the Court's done in
2:31
Speaker 2: prior cases upholding the administration is nitpick the challengers to death,
2:36
Speaker 2: finding small, often semantic defect in what they've done. It's
2:42
Speaker 2: truing jurisdiction extraordinarily strictly. But in this case, they simply
2:48
Speaker 2: allowed the President to go forward with activities that seempatently
2:52
Speaker 2: illegal without giving any explanation as to why it was acceptable.
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Speaker 4: Are the Supreme Court's conservatives just ignoring the decisions of
3:02
Speaker 4: the lower courts because here the Boston Federal judge said
3:06
Speaker 4: the purge would lead the Department unable to perform duties
3:10
Speaker 4: required under US law. Are the conservative just ignoring what
3:15
Speaker 4: the district court judges find they seem to.
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Speaker 2: Be which is inappropriate because on questions of fact, appellate
3:22
Speaker 2: courts are supposed to be highly deferential to the lower courts.
3:27
Speaker 2: That's true now, that was true at the time of
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Speaker 2: the founding, So that should not be a difficult proposition
3:32
Speaker 2: for originalists in this case.
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Speaker 4: As you said, there's no opinion, so we don't know
3:37
Speaker 4: what they based this on. But can we assume that
3:40
Speaker 4: they found the government would win on the merits.
3:44
Speaker 2: That's really the only plausible explanation. The lower Court's decision
3:50
Speaker 2: seems to have met all procedural requirements. The lower court
3:55
Speaker 2: was preserving the status quaal, which is a traditional form
3:58
Speaker 2: of an injunction. And clearly there is irreparable injury alleged
4:03
Speaker 2: by the plaintiffs that would be impossible to address if
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Speaker 2: the department is in fact collapsed. So the court must
4:13
Speaker 2: be concluding that plaintiffs will ultimately lose on the merits,
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Speaker 2: But it doesn't tell us how, and I can't guess.
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Speaker 4: Jes As Sonya Sotomayor, who wrote the dissent on behalf
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Speaker 4: of the three liberal justices, said the decision was indefensible,
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Speaker 4: handing the president the power to repeal statutes by firing
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Speaker 4: all those necessary to carry them out. Do you agree
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Speaker 4: with her dissent?
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Speaker 2: I'm afraid I do. The Supreme Court has talked in
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Speaker 2: other settings about the effects of actions. When it found
4:48
Speaker 2: the president couldn't be criminally prosecuted for actions taken in office,
4:55
Speaker 2: the court couldn't find anything in the concuition or statutes
4:59
Speaker 2: that supports them. What the Court said is the effect
5:02
Speaker 2: of this who would be the week in the president
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Speaker 2: too much? Well, the effect of what the president has
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Speaker 2: done to the Department of Education is to collapse the department,
5:13
Speaker 2: and there's a lower court that hurd a great deal
5:16
Speaker 2: of evidence that has reached that conclusion. It's disturbing that
5:21
Speaker 2: the Supreme Court is not recognizing those effects when it
5:26
Speaker 2: was so eager to do so in other cases.
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Speaker 4: Since April, the Supreme Court has signed with Trump every
5:33
Speaker 4: time he made an emergency request. That's fifteen times, on
5:37
Speaker 4: issues ranging from immigration and the firing of federal workers
5:42
Speaker 4: to dismissing transgender service members from the military. Is that
5:47
Speaker 4: a contrast to the way the Supreme Court treated President Biden.
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Speaker 2: It's a contrast of the way they treated President Biden,
5:54
Speaker 2: who had many of his most important policies and joined
5:58
Speaker 2: from day one, including policies that would have been much
6:02
Speaker 2: easier to unwind if they were ultimately found unlawful than,
6:07
Speaker 2: for example, destroying the Education Department or destroying you as aid.
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Speaker 2: This is also more deferential than we saw in the
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Speaker 2: first few months of this administration, which is even more disturbing.
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Speaker 4: Can you hazard a guess as to why they're giving
6:24
Speaker 4: Trump everything he wants? Are they just throwing up their
6:28
Speaker 4: hands and saying he's the president?
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Speaker 2: Well, the Chief Justice has long been known for wanting
6:34
Speaker 2: to present as united a court as possible, and the
6:40
Speaker 2: Chief Justice in the first month of the administration was
6:46
Speaker 2: able to get some of his conservative colleagues to join
6:51
Speaker 2: him in the liberals in reigning in the excesses of
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Speaker 2: this administration. I'm guessing that the Chief Justice has reached
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Speaker 2: the point of despairing of getting his colleagues to join him,
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Speaker 2: and is not eager to override the administration on bear
7:10
Speaker 2: five four or six three votes.
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Speaker 4: Trump and Education Secretary Linda McMahon have repeatedly said that
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Speaker 4: this is going to return responsibility for education to the states.
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Speaker 4: But don't the States already have the brunt of responsibility
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Speaker 4: for education?
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Speaker 2: Of course they do. Education. This country's overwhelmingly state funded,
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Speaker 2: even more overwhelmingly state controlled. The Department of Education has
7:37
Speaker 2: been limited to providing additional funds where state and local
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Speaker 2: resources are insufficient, and providing things that are more efficiently
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Speaker 2: purchased on a national level, such as curriculums such as
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Speaker 2: guidance and sharing of best practices. The Department of Education
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Speaker 2: is a well of the least intrusive federal agencies. Statement
8:00
Speaker 2: doesn't make very much them.
8:02
Speaker 4: The Trump administration says they want to return education to
8:05
Speaker 4: the States, but on Monday, twenty four states and the
8:09
Speaker 4: District of Columbia sued the Trump administration for withholding more
8:13
Speaker 4: than six billion dollars in federal funding for education programs.
8:18
Speaker 4: North Carolina Attorney General Jeff Jackson said the consequences could
8:23
Speaker 4: be dire for American students.
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Speaker 1: The effect is going to be massive, and it's going
8:28
Speaker 1: to be immediate. This is plainly against the laws, against
8:32
Speaker 1: the constitutions, against the impoundment. From a legal standpoint, this
8:36
Speaker 1: is not a hard case.
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Speaker 4: So the Trump administration's actions seem to be a little contradictory.
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Speaker 2: Yes, which suggests that this is more of a nuilist
8:45
Speaker 2: approach than a different philosophy. You wilect a different president,
8:48
Speaker 2: you should expect that they'll pursue a different philosophy. But
8:52
Speaker 2: so far, what we're seeing here is or wrecking ball.
8:55
Speaker 2: We know they're against lots and lots of things, it's
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Speaker 2: not clear what they're for.
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Speaker 4: Trump has argued in the past that, you know, the
9:02
Speaker 4: Education Department is unnecessary and also a tool of woke culture.
9:08
Speaker 4: The agency is charged with enforcing civil rights laws that
9:13
Speaker 4: bar discrimination and federally funded schools, and that office is
9:17
Speaker 4: going to be hit particularly hard by this. It's going
9:20
Speaker 4: to lose about half its staff and seven of eleven
9:23
Speaker 4: regional offices. I mean, do you think that's part of
9:27
Speaker 4: the goal here to eliminate that.
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Speaker 2: It's hard to know, because this administration has used civil
9:35
Speaker 2: rights allegations to buttress its attack on colleges and universities.
9:41
Speaker 2: So it's clearly interested in using the Education Department as
9:45
Speaker 2: a club. If you want to talk about limiting the
9:49
Speaker 2: role of federal government, having it try to micromanage how
9:54
Speaker 2: a university makes faculty appointments and selects people for tenure.
9:59
Speaker 2: It's a huge overreach beyond the traditional role of the
10:02
Speaker 2: federal government, and that was not done under Joe Biden
10:05
Speaker 2: or Barack Obama. That's something that this administration has innovated,
10:09
Speaker 2: though they're not very consistent about whether they want a
10:13
Speaker 2: strong or a weak education department.
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Speaker 4: David, you often give me examples from history, anything in
10:18
Speaker 4: US history that's instructive here.
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Speaker 2: There's one thing that strikes me about this, which is
10:24
Speaker 2: that this Court has told us again and again that
10:27
Speaker 2: it's originalist. The fourth law that Congress passed after the
10:32
Speaker 2: ratification of the Constitution was to start creating cabinet departments.
10:38
Speaker 2: So the first Congress understood that it got to choose
10:42
Speaker 2: what cabinet departments we would have. And you would think
10:45
Speaker 2: an originalist court would pay special attention to that and
10:50
Speaker 2: not allow a president to make these decisions. If George
10:53
Speaker 2: Washington couldn't decide what cabinet departments we would have, Shirley
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Speaker 2: Donald Trump can't.
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Speaker 4: And another point from his street, George Washington refused to
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Speaker 4: run for a third term. Thanks so much, David. That's
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Speaker 4: constitutional law professor David Super of Georgetown Law. And according
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Speaker 4: to a Quinnipiac poll in March, sixty percent of voters
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Speaker 4: opposed Trump's plan to eliminate the Education Department, with thirty
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Speaker 4: three percent supporting it. Coming up next on the Bloomberg
11:21
Speaker 4: Law Show, Trump's anti trust enforcers clear three deals worth
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Speaker 4: sixty three billion dollars in one week. We'll talk about
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Speaker 4: what that signals for the next four years. Remember you
11:33
Speaker 4: can always get the latest legal news by listening to
11:35
Speaker 4: our Bloomberg Law podcast wherever you get your favorite podcasts.
11:39
Speaker 4: I'm June Grosso and you're listening to Bloomberg.
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Speaker 6: I see it as my job to scrutinize deals consistently
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Speaker 6: with the timeline Congress created and our antitrust laws. And
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Speaker 6: if we think that they are illegal and we think
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Speaker 6: that we can win in court, we're going to go
11:54
Speaker 6: to court. But if we don't think that they are
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Speaker 6: illegal or we don't think we can win in court,
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Speaker 6: the FTC is going to get out of the way.
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Speaker 4: Federal Trade Commission Chair Andrew Ferguson has repeatedly said that
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Speaker 4: if his agency can resolve issues with a proposed merger,
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Speaker 4: it will get out of the way. And it appears
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Speaker 4: that both Trump's anti trust enforcers are getting out of
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Speaker 4: the way of multi billion dollar deals. In the last
12:20
Speaker 4: week of June, the FTC cleared candymaker mars thirty six
12:24
Speaker 4: billion dollar acquisition of pringles maker Kellinova, It approved Omnicom's
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Speaker 4: thirteen point five billion dollar buyout of rival into Public,
12:34
Speaker 4: which will create the world's largest advertising agency, and the
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Speaker 4: Department of Justice cleared Hewlett Packard's fourteen billion dollar acquisition
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Speaker 4: of Juniper Networks. More than sixty three billion dollars in
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Speaker 4: deals cleared in the same week. Who better to explain
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Speaker 4: what's happening with the anti trust regulators than my guest
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Speaker 4: Harry First, a professor at NYU Law School who specializes
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Speaker 4: in anti trust, Harry the FTC, and the Justice Department
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Speaker 4: cleared three deals worth more than sixty three billion dollars
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Speaker 4: in the last week of June. What does this tell you?
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Speaker 4: Is it the change in management?
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Speaker 7: Well, there's certainly a change in management. The question that
13:17
Speaker 7: everyone asked when management changed is what direction? So I
13:21
Speaker 7: think people were looking at two big things. One where
13:25
Speaker 7: the cases against the dominant platforms, the big tech platforms
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Speaker 7: that were ongoing neared five of those what would they
13:32
Speaker 7: do with those? And the second is what were they
13:34
Speaker 7: going to do with mergers? So on the first they've
13:38
Speaker 7: kept them going. They haven't dismissed anything. They're litigating them
13:43
Speaker 7: just like they were before, in fact emphasizing the continuity
13:47
Speaker 7: of the position of departments taking in some ways maybe
13:50
Speaker 7: not surprising given sort of the maybe populism streak in
13:54
Speaker 7: the Trump administration, but in some way surprising because they
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Speaker 7: have moved closer in closer to put up or shut up.
14:02
Speaker 7: You know, you have to remedy these things. So that's
14:04
Speaker 7: where we are with those. The other side was the mergers,
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Speaker 7: and out of the box they filed the case HP's
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Speaker 7: acquisition of Juniper Networks, and it was the first case
14:14
Speaker 7: they filed, and it looked like a Biden complaint. I
14:19
Speaker 7: think people were saying, look, what they're going to do
14:21
Speaker 7: is they'll they'll pull the merger guidelines that were issued
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Speaker 7: in twenty twenty three by the Biden FTC and Justice
14:28
Speaker 7: Department widely viewed as pretty aggressive in terms of enforcement. Yeah,
14:34
Speaker 7: maybe they're going to pull those and pull back from
14:37
Speaker 7: merger enforcement. But what we saw in that first case
14:40
Speaker 7: was they file the case, they cite the twenty twenty
14:43
Speaker 7: three guidelines, they follow them, they say, hey, this case
14:48
Speaker 7: is presumptively bad because it increases concentration, and you know,
14:52
Speaker 7: they're trying to suppress the more innovative firm.
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Speaker 3: WHOA.
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Speaker 7: That seems to me surprising, So I thought, well, maybe
15:00
Speaker 7: it's something in the changeover. That person who signed it,
15:03
Speaker 7: maybe doesn't understand what he's done, or who knows. You know,
15:07
Speaker 7: we're not well supervised. But they kept it going. And
15:10
Speaker 7: so the next question is, well, what are they going
15:13
Speaker 7: to do with these cases? And you're right now we're
15:15
Speaker 7: seeing a string of dismissals.
15:18
Speaker 4: Let's look closer at the Hewlett Packard acquisition of Juniper Networks.
15:23
Speaker 4: What was the settlement like there?
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Speaker 7: The Justice Department announced the settlement. So on a Saturday,
15:29
Speaker 7: a hot news Yeah, thatatur day, June the twenty eighth,
15:33
Speaker 7: they announced the settlement of HP Juniper. This is a
15:37
Speaker 7: fourteen billion dollar acquisition. So the settlement that they explain,
15:42
Speaker 7: and this isn't over yet because the judge has to
15:45
Speaker 7: approve it spins off some part of HPE that does
15:50
Speaker 7: networks for small business. So it looks like small ball.
15:53
Speaker 7: You know, it's not even clear how that's going to
15:55
Speaker 7: affect competition. Remember they pleaded that this was highly constant, traded, industry,
16:01
Speaker 7: anti competitive, strong head to head competition between the two firms.
16:05
Speaker 7: What's the other part. The other part is a compulsory
16:08
Speaker 7: license to the software that Juniper has called missed. Now,
16:13
Speaker 7: a compulsory license means actually the merge firm gets to
16:17
Speaker 7: keep it. They don't have to get rid of it.
16:20
Speaker 7: All they have to do is license it for which
16:24
Speaker 7: they'll get some money, but non exclusively, so they get
16:27
Speaker 7: to keep it. And then do they have a potential
16:31
Speaker 7: licensee for this, No, they don't seem to have anyone.
16:35
Speaker 7: They are going to appoint a trustee. So who's going
16:38
Speaker 7: to take this license? Is as valuable? Isn't it not explained?
16:42
Speaker 7: And they say maybe a second party will show up. Well,
16:44
Speaker 7: a second party shows up, says the decree with a
16:47
Speaker 7: bid of over eight million dollars, they can have a
16:50
Speaker 7: license to eight million dollars. Might be a second bid.
16:54
Speaker 7: Remember this acquistition is of fourteen billion dollars acquisitions. So
16:59
Speaker 7: is an exclusive license to this software valuable? Will someone
17:03
Speaker 7: come up and take it? Who might it be? No idea?
17:08
Speaker 7: So that's where we are. Looks to me like we
17:11
Speaker 7: can call it, shall we say, a really weak remedy
17:16
Speaker 7: for a case that's pleaded That looked very strong. So
17:20
Speaker 7: this is your insight into where merger enforcement might be going.
17:26
Speaker 7: The first case out of the box looks strong when
17:29
Speaker 7: it's pleded. Looks to me at the moment, ay, maybe
17:33
Speaker 7: more information will turn up pretty weak on the remedy
17:36
Speaker 7: that they go forward to allow the merger to go forward.
17:39
Speaker 7: And this seems to be the mantra that you know,
17:42
Speaker 7: we've got these strong guidelines on the books that look
17:45
Speaker 7: very pro enforcement. Maybe we'll file a case and then
17:49
Speaker 7: have a weak remedy. Or here's another good part. Maybe
17:54
Speaker 7: we won't file a case at all and just let
17:59
Speaker 7: these things go through.
18:01
Speaker 4: The Omnicon deal creates the world's largest advertising agency, and
18:07
Speaker 4: they got FTC approval by agreeing to stop withholding online
18:12
Speaker 4: ads for political reasons, so no economic concessions, you know.
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Speaker 7: Another tactic is just to let it go through. And
18:21
Speaker 7: in the advertising agency creates the largest advertising agency ever
18:26
Speaker 7: for an administration that talks about how horrible concentration is.
18:29
Speaker 7: You have to wonder exactly what's going on. There is
18:33
Speaker 7: one more moler I guess interesting case in any trust
18:38
Speaker 7: division allowing a merger to go forward, and it's a
18:42
Speaker 7: cellular phone merger and it's T Mobile acquiring a smaller
18:48
Speaker 7: company called US Cellular, and that they led through without anything.
18:53
Speaker 7: But interestingly, they filed something that's called a closing statement
18:58
Speaker 7: explaining why they closed case. This is pretty rare for
19:02
Speaker 7: the Justice Department to do or the FTC. They don't
19:05
Speaker 7: usually explain why they don't do something, and there's a
19:08
Speaker 7: lot of controversy about this, but this one they explained,
19:11
Speaker 7: and I urge people to go and read it because
19:13
Speaker 7: it's sort of funny. It's like, I think of you
19:15
Speaker 7: remember the old Chinese fortune cookies, oh yeah, you know, right,
19:19
Speaker 7: and you always thought you'd open one up whether the
19:21
Speaker 7: fortune would be help I'm being held prisoner in a
19:26
Speaker 7: Chinese fortune cookie factory. Well this was sort of like that,
19:30
Speaker 7: because the closing statement was almost a statement about why
19:34
Speaker 7: this merger was so any competitive and why it's so
19:38
Speaker 7: needed to be stopped that we didn't do anything. And
19:43
Speaker 7: what's also sort of great about it, and it is
19:45
Speaker 7: from the closing statement, this is just a department writing
19:48
Speaker 7: the company understood the unmet needs of customers. Okay, this
19:52
Speaker 7: is the company that's going to be acquired, the company
19:55
Speaker 7: that understood the unmet needs of customers, right, and they
19:59
Speaker 7: called the customer's farm town, frugal and hart Land families.
20:05
Speaker 7: All right, it's just great. And these in some ways
20:08
Speaker 7: would sound like you know, JD. Van throte this, and
20:12
Speaker 7: they are the consumers. You would think this administration purports
20:15
Speaker 7: the one to protect, and instead what they're going to
20:18
Speaker 7: be allowed to do is to join the Sprint network,
20:21
Speaker 7: which presumably they decide not to do in the first
20:23
Speaker 7: place when they signed up with US Cellular. And then
20:27
Speaker 7: it goes on to lament the concentration in the cell
20:30
Speaker 7: phone market. It's a big three, and we the Justice Department,
20:35
Speaker 7: and we don't seem, you know, to be doing anything
20:38
Speaker 7: about this. It is truly a curious document. Final curious
20:43
Speaker 7: point on this Sprint T Mobile merger was supposed to
20:46
Speaker 7: establish a fourth carrier, you know, through Dish. So Sprint
20:50
Speaker 7: had to give Boost Mobile system to Dish to help
20:54
Speaker 7: them establish a fourth carrier. No hint in this state
21:00
Speaker 7: that there's a fourth carrier that might emerge, even though
21:04
Speaker 7: this apartment is at this very moment supervising the decree
21:09
Speaker 7: that they entered that purported to establish or hope to
21:14
Speaker 7: establish a fourth carrier. So this is curious, bizarre prisoner
21:20
Speaker 7: in the Fortune Cookie factory material. But again it's sort
21:25
Speaker 7: of this why we see these problems, But hey, I
21:28
Speaker 7: don't think we're going to do anything about it.
21:31
Speaker 4: Harry FTC chair Ferguson has criticized the buying administration for
21:36
Speaker 4: its refusal to negotiate settlements. Listen to what he said
21:40
Speaker 4: and tell me what you think.
21:42
Speaker 6: In the previous administration, a deal would enter the FTC
21:45
Speaker 6: and it would sort of disappear, and sometimes it could
21:47
Speaker 6: disappear for months while you know, novel ideas were floated,
21:52
Speaker 6: different theories and sometimes it sort of seemed like the
21:55
Speaker 6: FTC was hoping that deals would die on the vine
21:59
Speaker 6: while they wait for regulatory clearance. I want nothing to.
22:02
Speaker 4: Do with that.
22:03
Speaker 7: I mean, you can always make a deal if you're
22:05
Speaker 7: willing to give up a lot, that's not hard to do.
22:08
Speaker 7: You either don't do anything, you know, the cell phone acquisition,
22:13
Speaker 7: or you do something weak the HP Juniper Networks merger.
22:18
Speaker 7: There was reason why the Biden administration forces said we're
22:22
Speaker 7: backing away from all these deals is because the remedies
22:27
Speaker 7: that had been agreed in so many of these deals
22:30
Speaker 7: turned out to be ineffective. There were studies of this
22:34
Speaker 7: that you know, you'd say, oh boy, this will re
22:37
Speaker 7: establish competition in the market, and then it didn't. And
22:40
Speaker 7: so what happened that people basically went forward and we
22:44
Speaker 7: lost competition. You know, every once in a while to
22:47
Speaker 7: be some good remedy. But basically the argument was, you know,
22:51
Speaker 7: it's really hard to create competition through these government decrees.
22:55
Speaker 7: The better thing is not to let competition go away
22:59
Speaker 7: by allowing them. So, you know, that was the basis
23:02
Speaker 7: of the policy in the Justice Department the FPC. Not
23:06
Speaker 7: that they didn't settle cases, they didn't and not all
23:10
Speaker 7: of them were actually effective. They weren't, but the overall
23:15
Speaker 7: thrust was worth seeing. We're not settling. And then parties
23:21
Speaker 7: were put together deals knowing that there was a greater
23:24
Speaker 7: chance of litigation. Now it's gone the other way, and
23:29
Speaker 7: you know, I think that this is what a deal
23:32
Speaker 7: making the administration would want. And it looks to me
23:35
Speaker 7: like that's where they're going, always with the ability to
23:40
Speaker 7: bring suit in a case that suits them, because the
23:46
Speaker 7: twenty twenty freaquent oidelines have a lot of discretion in them.
23:49
Speaker 7: And the flip side of we'll negotiate a lot is
23:53
Speaker 7: but maybe not with you. So we have yet to
23:56
Speaker 7: see with whom they are tough.
23:59
Speaker 4: It's always great to get you insides. Harry some from
24:01
Speaker 4: inside a fortune cookie. Thanks so much. That's Professor Harry
24:05
Speaker 4: First of NYU Law School. Coming up next on the
24:09
Speaker 4: Bloomberg Law Show. Thousands of Afghans get a temporary reprieve
24:13
Speaker 4: from being deported. We'll talk to their attorney. I'm June
24:17
Speaker 4: Grosso and you're listening to Bloomberg. A reprieve for nearly
24:23
Speaker 4: twelve thousand Afghans. The Fourth Circuit Court of Appeals has
24:27
Speaker 4: stepped in to keep protections in place that have prevented
24:31
Speaker 4: the Trump administration from deporting them, at least until Monday.
24:35
Speaker 4: The administration has moved aggressively to remove temporary protected status,
24:40
Speaker 4: or TPS from Afghans and hundreds of thousands of people
24:44
Speaker 4: from six other countries as part of the administration's efforts
24:48
Speaker 4: to ramp up deportations. Joining me is Samuel Siegel, senior
24:53
Speaker 4: counsel at the Institute for Constitutional Advocacy and Protection at
24:57
Speaker 4: Georgetown Law. They're suing the administration and over the revocation
25:01
Speaker 4: of temporary protected status for Afghans on behalf of KASA,
25:05
Speaker 4: a nonprofit immigrant advocacy group. So, before the appeals court
25:09
Speaker 4: stepped in, the Trump administration had planned to deport nearly
25:14
Speaker 4: twelve thousand Afghans this past Monday. Tell us what happened.
25:19
Speaker 5: So, the Trump administration had announced that it was ending
25:22
Speaker 5: temporary protected status for Afghanistan this week, it announced that
25:27
Speaker 5: the conditions that initially led to the designation of that country,
25:30
Speaker 5: the ongoing on conflict between Taliban and other insurgent groups,
25:35
Speaker 5: and the extraordinary humanitarian conditions, were essentially no longer so
25:39
Speaker 5: severe that it merited that designation. I guess to take
25:43
Speaker 5: a step back and talk a little bit about TPS.
25:45
Speaker 5: TPS is a status that the Secretary of Homeland Security
25:49
Speaker 5: can designate a particular country for based on certain conditions
25:53
Speaker 5: in those countries, particularly if the country's experiencing an ongoing
25:56
Speaker 5: armed conflict, if there's a natural disaster, or if there's
26:00
Speaker 5: another extraordinary condition in the country. If the Secretary makes
26:04
Speaker 5: that conclusion, then he or she will designate the country
26:08
Speaker 5: for TPS, which allows individuals from those countries to live
26:11
Speaker 5: and work in this country for a particular set period
26:15
Speaker 5: of time. Secretary of Manorcus concluded that Afghanistan merited that
26:19
Speaker 5: determination back in twenty twenty two and extended in twenty
26:23
Speaker 5: twenty three based on those conflicts and the conditions in Afghanistan,
26:27
Speaker 5: and Secretary norm at least purported to say that those
26:30
Speaker 5: conditions no longer existed now. Of course, our challenge, one
26:33
Speaker 5: of our arguments is in fact, that purported rationale for
26:38
Speaker 5: the decision is not the one that's actually motivating the
26:41
Speaker 5: actions here. Our argument is that this is a preordained
26:44
Speaker 5: decision as part of the Trump administration's broader effort to
26:47
Speaker 5: reduce the number of non white immigrants in this country,
26:51
Speaker 5: and that's the basis on which we have asked the
26:54
Speaker 5: Fourth Circuit to pause the PPS termination while the appeal
26:58
Speaker 5: plays out.
27:00
Speaker 4: Also arguing that the Homeland Security Secretary's determination that there
27:06
Speaker 4: are notable improvements in the security and economic situation in
27:11
Speaker 4: Afghanistan and that Afghan nationals can return safely, are you
27:16
Speaker 4: also arguing that that's actually incorrect.
27:20
Speaker 5: We're not making that specific argument, in part because of
27:23
Speaker 5: some jurisdictional bars on what the courts are allowed to consider.
27:27
Speaker 5: I think what we are as pointing to that the
27:29
Speaker 5: conditions in the country are not good, and this further
27:32
Speaker 5: supports the argument that the purported rationales that things have
27:36
Speaker 5: improved are not the actual one. So it's that mismatch
27:39
Speaker 5: between what's actually going on in Afghanistan and the actions
27:43
Speaker 5: here that support our argument that even if things might
27:46
Speaker 5: have improved a little bit, and that's not really the
27:48
Speaker 5: reason that she's doing that. And I would just note
27:51
Speaker 5: to this effect. You know, as part of the litigation here,
27:55
Speaker 5: the administration had to produce an administrative record, which is
27:59
Speaker 5: all the things that were in front of the Secretary
28:02
Speaker 5: when she made her decision, and in November of twenty
28:06
Speaker 5: twenty four, the US Customs and Immigration Service concluded that,
28:10
Speaker 5: and I'm going to quote here quote Afghanistan's civilian population
28:14
Speaker 5: faces dire challenges, including a collapsing economy and healthcare system,
28:19
Speaker 5: ubiquitous food and security exacerbated by drought, and widespread insecurity
28:24
Speaker 5: due to decades of armed conflict and insurgency that are
28:27
Speaker 5: entering a new danger phase. So again, we're not necessarily
28:32
Speaker 5: challenging the underlying factual conclusion of what's going on here,
28:35
Speaker 5: but we're saying that these kinds of statements from the
28:37
Speaker 5: federal government itself demonstrate that there's really something else going
28:41
Speaker 5: on here.
28:42
Speaker 4: So Federal Judge Schwang allowed your challenge to TPS to
28:46
Speaker 4: go forward, but he declined to halt the administration's policy
28:51
Speaker 4: and preserve GPS protections. He found that your group hadn't
28:55
Speaker 4: established sufficient likelihood of success on the merits. Why he
29:01
Speaker 4: thought that you wouldn't succeed on the merits.
29:03
Speaker 5: Here, I think Judge Swang issued a well considered and
29:07
Speaker 5: balanced opinion. He concluded, as you said, that our challenge
29:10
Speaker 5: can go ahead, notwithstanding a couple of jurisdictional arguments that
29:13
Speaker 5: the defendants had raised. And he also concluded by pointing
29:16
Speaker 5: to things like the US Custom and Immigration Service report
29:19
Speaker 5: that I just quoted that we had plausibly alleged that
29:23
Speaker 5: the action taken with respect to Afghanistan is part of
29:26
Speaker 5: a broader policy to reduce the number of non white
29:29
Speaker 5: immigrants in this country and to effectively terminate almost all
29:33
Speaker 5: TPS designations. But then he said, we had not yet
29:37
Speaker 5: introduced enough evidence to sort of get over that likelihood
29:40
Speaker 5: of the success on the Merits hump, and so there's
29:43
Speaker 5: some delta there in his mind that we hadn't yet demonstrated,
29:47
Speaker 5: and he said, look, I'm going to allow this claim
29:49
Speaker 5: to go forward, but at this point I'm not going
29:52
Speaker 5: to enter relief. So we respectfully disagree with that part
29:56
Speaker 5: of Judge Chwang's ruling. We think that the allegations we
30:00
Speaker 5: made here and the evidence before the court was sufficient
30:03
Speaker 5: to a minimum temporarily pause the termination of Afghanistan's TPS
30:10
Speaker 5: designation while we get that discovery wall things play out.
30:14
Speaker 5: And that's sort of the similar request that we've made
30:15
Speaker 5: of the Fourth Circuit is just to postpone this agency
30:18
Speaker 5: action while the appeal plays out. And one thing I'll
30:21
Speaker 5: just note here, you know, Judge Chwang noted that other
30:25
Speaker 5: courts have entered preliminary relief of some sort in response
30:29
Speaker 5: to similar claims and similar amounts of evidence in the
30:32
Speaker 5: past and the first Trump administration and said, well, we
30:35
Speaker 5: hadn't produced enough evidence here. I think it's important to
30:38
Speaker 5: note that in those cases, the time between when the
30:43
Speaker 5: end of the TPS designation was announced and when it
30:46
Speaker 5: took effect was in most cases more than a year.
30:49
Speaker 5: So those parties had, you know, much more time to
30:52
Speaker 5: produce the kind of evidence that Judge Chwang is asking for.
30:56
Speaker 5: When we're asking for just this sort of temporary relief wall,
30:59
Speaker 5: things are playing out the merits. We think that first
31:01
Speaker 5: of all, the evidence that we have produced and the
31:03
Speaker 5: things that we've pointed to, like the thing from USCS
31:06
Speaker 5: that I pointed you to, like some other statements from
31:09
Speaker 5: President Trump and Secretary Nome, demonstrate that this is part
31:13
Speaker 5: of a preordained effort and demonstrate that we will likely
31:16
Speaker 5: succeed on the merits when we get there, especially as
31:19
Speaker 5: we get into discovery and produce more evidence in support
31:22
Speaker 5: of our argument.
31:23
Speaker 4: The Fourth Circuit gave you an administrative stay for a
31:26
Speaker 4: week until Monday. What's been happening.
31:29
Speaker 5: Right so for right now, as you mentioned at the outset.
31:32
Speaker 5: The Afghan PPS designation was set to expire on Monday.
31:36
Speaker 5: By virtue of the Fourth Circuit's decision, it postpones that
31:40
Speaker 5: action for at least that week, which means that Afghans
31:43
Speaker 5: who are facing the possibility of either having to leave
31:45
Speaker 5: this country or exist in some legal limbo and not
31:48
Speaker 5: be able to work, are able to do so for
31:50
Speaker 5: at least this week. In the interim, the Court has
31:54
Speaker 5: asked us to brief our request formally called a postponement
31:57
Speaker 5: of agency action pending appeal, and then we'll get it decision,
32:00
Speaker 5: presumably at some point before Monday at eleven to fifty
32:04
Speaker 5: nine pm.
32:05
Speaker 4: Is this a losing battle in the end, because if
32:08
Speaker 4: and when it reaches the Supreme Court, you're not likely
32:11
Speaker 4: to find a receptive audience, at least among the conservative justices.
32:16
Speaker 4: At the end of May, the Supreme Court allowed the
32:19
Speaker 4: Trump administration to immediately strip the legal right to temporarily
32:24
Speaker 4: live and work in the US from as many as
32:26
Speaker 4: half a million people from Cuba, Haiti, Nicaragua, and Venezuela.
32:31
Speaker 4: And that followed another order in May that allowed the
32:34
Speaker 4: administration to end TPS protections for three hundred and fifty
32:38
Speaker 4: thousand Venezuelans. So is the Supreme Court likely to end
32:43
Speaker 4: TPS protections for Afghans as well.
32:46
Speaker 5: So I don't want to make too many predictions about
32:48
Speaker 5: exactly what the Supreme Court is going to do here.
32:50
Speaker 5: I will say that we're very confident in our case,
32:52
Speaker 5: and I'd just like to parse out those prior grants
32:56
Speaker 5: of I think stays of lower court orders. So with
32:59
Speaker 5: respect to the qubations Venezuelans and Nicaraguans, that was actually
33:02
Speaker 5: with respect to a parole program that had been adopted
33:05
Speaker 5: by the Biden administration, so it didn't involve temporary protected status,
33:10
Speaker 5: and I think, you know, sort of trying to extrapolate
33:12
Speaker 5: what the court said they are and apply it here,
33:14
Speaker 5: I think is a very difficult thing. Similarly, with respect
33:17
Speaker 5: to the Venezuelan program, that was was respect to the
33:19
Speaker 5: temporary protected status, but in that case the arguments that
33:22
Speaker 5: were being made were different from the ones that are
33:24
Speaker 5: being made here.
33:25
Speaker 2: There.
33:26
Speaker 5: For example, the plaintiffs argued that Secretary Majorcists, who had
33:31
Speaker 5: extended the TPS designation for Venezuela for about eighteen months
33:35
Speaker 5: at the end of the Biden administration, and then Secretary
33:38
Speaker 5: Nome had revoked that extension. The plaintiffs there argued that
33:42
Speaker 5: Secretary Nome doesn't have that sort of authority. We, by contrast,
33:46
Speaker 5: here are arguing that the reasons that we're given were pretextual,
33:50
Speaker 5: that this was a preordained effort. Also, you know, I
33:53
Speaker 5: think there are extremely strong equities here, as Judge Schwang
33:57
Speaker 5: recognized in his decision. I mean with Afghans in particular,
34:01
Speaker 5: we're talking about individuals who served our country. One of
34:05
Speaker 5: the members of Kassa who's our client here is a
34:09
Speaker 5: person named Bs who faced death threats due to her
34:12
Speaker 5: work as an interpreter for international and United States agencies,
34:16
Speaker 5: and she's fearful that if she's returned, she's going to
34:18
Speaker 5: be targeted by the Taliban if she goes back to Afghanistan.
34:22
Speaker 5: So again, I think it's always a little bit of
34:24
Speaker 5: a hazardous proposition of guessing what the Supreme Court might
34:27
Speaker 5: do if we get there. But we think that we've
34:29
Speaker 5: got a very strong case and that what the Court
34:32
Speaker 5: did with respect to Venezuela and with respect to the
34:34
Speaker 5: parole program doesn't shed all that much light on what
34:37
Speaker 5: it might do here.
34:38
Speaker 4: Can some of the Afghans that you're representing apply for
34:42
Speaker 4: special immigrant visas or asylum.
34:46
Speaker 5: Some may be able to, you know, but I think
34:48
Speaker 5: it's important to emphasize here that TPS is the bird
34:52
Speaker 5: in the hand. It guarantees them the ability to be
34:55
Speaker 5: in this country. It guarantees them the ability to work
34:58
Speaker 5: in this country. It guarantees them under the statute, they
35:01
Speaker 5: cannot be put in detention on the basis of their
35:04
Speaker 5: immigration status. Things that may not apply to everyone that
35:09
Speaker 5: is securing or in the process at least of securing
35:12
Speaker 5: relief through other means. So there might be other things
35:15
Speaker 5: that are available. Whether or not they will ever be
35:18
Speaker 5: able to take advantage of those status, you know, who knows,
35:20
Speaker 5: especially as this administration has assiduously worked to make those
35:25
Speaker 5: kinds of relief further out of reach.
35:27
Speaker 4: And how do you respond to the White House's statements
35:30
Speaker 4: that Temporary protected Status was never intended to be a
35:33
Speaker 4: de facto asylum program, and that's not supposed to be
35:37
Speaker 4: just renewed over and over again.
35:39
Speaker 5: And I think that's certainly right. I mean, it's baked
35:41
Speaker 5: into the name temporary protected status, but there are specific
35:46
Speaker 5: criteria that the Secretary is supposed to analyze in good
35:49
Speaker 5: faith in determining whether or not to designate a country
35:52
Speaker 5: in the first place, and to extend, including for example,
35:55
Speaker 5: whether or not there's an ongoing armed conflict there. The
36:00
Speaker 5: Secretary offers reasons that are contrary to one or offers
36:04
Speaker 5: reasons that are pretextual. We just don't think that that's
36:08
Speaker 5: the basis for being able to terminate a TPS protection.
36:11
Speaker 5: And if she makes a good faith assessment, then this
36:14
Speaker 5: can be terminated. And TPS designations have been terminated in
36:17
Speaker 5: the past, just hasn't done what the statue requires in
36:21
Speaker 5: this instance.
36:22
Speaker 4: Thanks for joining me today. That's Samuel Siegel of the
36:25
Speaker 4: Institute for Constitutional Advocacy and Protection at Georgetown Law. And
36:29
Speaker 4: that's it for this edition of The Bloomberg Law Show.
36:32
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36:34
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36:51
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