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Weekend Law: Religion in Schools, Mass Deportations & Nvidia Suit · Bloomberg Law

• 0:03
  Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
• 0:09
  Speaker 2: This bill mandates the display of the Ten Commandments in
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  Speaker 2: every classroom in public, elementary, secondary, in post education schools
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  Speaker 2: in a state Louisiana.
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  Speaker 3: Louisiana is the first state to require that the Ten
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  Speaker 3: Commandments be displayed in public school classrooms since nineteen eighty,
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  Speaker 3: when the Supreme Court struck down a similar Kentucky law
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  Speaker 3: on First Amendment grounds. Governor Jeff Landry signed the bill,
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  Speaker 3: which requires a poster sized, state approved version of the
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  Speaker 3: Ten Commandments to be posted in public classrooms from kindergartens
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  Speaker 3: up to universities by January first.
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  Speaker 2: Because if you want to respect the rule of law,
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  Speaker 2: you got to start from the original law giver, which
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  Speaker 2: was Moses.
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  Speaker 3: But a federal judge has stepped in to stop that
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  Speaker 3: from happening, finding that the law is unconstitutional on its face.
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  Speaker 3: With state officials vowing to appeal the ruling, the legal
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  Speaker 3: showdown won't end tier and may even end up at
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  Speaker 3: the Supreme Court. Joining me is an expert in the
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  Speaker 3: First Amendment. Caroline mal KORbin, a professor at the University
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  Speaker 3: of Miami Law School, tell us about the judges ruling
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  Speaker 3: almost two hundred pages.
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  Speaker 4: It was indeed very long. It was one hundred and
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  Speaker 4: seventy seven pages. So Louisiana had passed a law mandating
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  Speaker 4: the posting of a particular version of the Ten Commandments
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  Speaker 4: in every single classroom in the public schools of Louisiana,
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  Speaker 4: both case through twelve and the university level. And this
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  Speaker 4: was challenged, not surprisingly on Establishment laws ground, and the
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  Speaker 4: District Court gave sort of two paths of why this
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  Speaker 4: was in fact in violation the establishment clause, and his
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  Speaker 4: first line of discussion was that there is very clear
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  Speaker 4: precedent on this matter. Kentucky had tried the same thing
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  Speaker 4: back in nineteen eighty. It too had passed the law
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  Speaker 4: requiring the posting of the Ten Commandments in every single classroom,
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  Speaker 4: and the court said, no, you can't do that. There
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  Speaker 4: is no real secular reason for this. You can't impose
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  Speaker 4: a religion on the walls like that. It is unconstitutional.
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  Speaker 4: And so there is Supreme Court precedent directly on point.
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  Speaker 4: And so the District Court said, under this decision, which
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  Speaker 4: is still good law because the Supreme Court has not
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  Speaker 4: yet explicitly overruled it, this law cannot survive. And so
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  Speaker 4: that was one approach, which is very straightforward. And then
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  Speaker 4: it had another line of argument because there is concerned
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  Speaker 4: that the Supreme Court is going to overrule that decision,
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  Speaker 4: and in fact, that's partly what Louisiana is hoping. And
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  Speaker 4: so given this new Christian friendly Supreme Court, it may
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  Speaker 4: well decide that that precedent is no longer good, in
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  Speaker 4: part because it relied on some doctrine that the Supreme
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  Speaker 4: Court had rejected, so anticipating that that argument, which should
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  Speaker 4: be enough, might not be enough, it also analyzed the
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  Speaker 4: case under the Supreme court more recent rulings and the
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  Speaker 4: Supreme Court's more recent rulings have said, when you're trying
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  Speaker 4: to decide whether something violates the establishment clause or not,
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  Speaker 4: you must refer to the history and tradition of the
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  Speaker 4: practice in question. And so that's what the distcurt did,
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  Speaker 4: and in fact, there was even an expert who testified.
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  Speaker 4: And then the question was is there a history and
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  Speaker 4: tradition of posting the Ten Commandments on the walls of
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  Speaker 4: public schools? And the answer was no, there's no.
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  Speaker 3: Will you describe the current test the Supreme Court uses
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  Speaker 3: in establishment clause cases.
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  Speaker 4: Yeah, There used to be several different tests the court
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  Speaker 4: might rely on in evaluating establishment clause challenges, and they
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  Speaker 4: have different names. There was the Lemon tests, the endorsement test,
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  Speaker 4: the history and tradition test, the coercion test. In that decision,
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  Speaker 4: the Supreme Court essentially killed off two of them, and
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  Speaker 4: it said, we are no longer going to rely on
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  Speaker 4: the Lemon tests, We're no longer going to rely on
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  Speaker 4: the endorsement test. So what the court is going to
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  Speaker 4: consider going forward when faced with an establishment clause challenge
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  Speaker 4: is a history and tradition analysis, and also it will
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  Speaker 4: consider whether anyone is being compelled into practicing religion against
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  Speaker 4: their will. And so those the two frame work the
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  Speaker 4: court will use going forward. And the District Court in
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  Speaker 4: fact used them again in anticipation of its reliance on
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  Speaker 4: precedent not being enough for the current court and conducted
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  Speaker 4: a history and tradition analysis and also found them to
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  Speaker 4: be rather coercive.
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  Speaker 3: Louisiana is going to appeal, and they're in the Fifth Circuit,
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  Speaker 3: which indeed the most conservative circuit in the country, has
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  Speaker 3: handed down some novel rulings lately, some of them even
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  Speaker 3: too much for the Supreme Court do you have any
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  Speaker 3: confidence in how the Fifth Circuit will rule.
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  Speaker 4: I do not have any confidence in how they were ruled.
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  Speaker 4: But it would not surprise me if they pick up
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  Speaker 4: the baton that the Louisiana Statute laid down and argue
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  Speaker 4: that there is in fact a history and tradition of
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  Speaker 4: the Ten Commandments in schools, and therefore there is nothing
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  Speaker 4: wrong with having posters, and would not surprise me if
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  Speaker 4: they said it was not at all coercive, because no
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  Speaker 4: one's being forced to pray or do any particular religious exercise.
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  Speaker 4: So I would not be surprised if again they constructed
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  Speaker 4: a history in accurate history, by the way, because the
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  Speaker 4: expert did quite a good job of dismantling some of
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  Speaker 4: the claims that Louisiana made in its text, including a
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  Speaker 4: completely fabricated quotation from James Madison. But nonetheless they will
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  Speaker 4: claim that there is parenty of evidence of having the
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  Speaker 4: Ten Commandments of schools, and even if there's no evidence
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  Speaker 4: of Ten Commandment posters and schools, it doesn't matter. It's
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  Speaker 4: enough that there were mention of the Ten Commandment or
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  Speaker 4: reading of the Ten Commandment, and therefore there's no violation
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  Speaker 4: of the Establishment Clause and they were a claimed that
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  Speaker 4: simply looking at the Ten Commandments is not going to
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  Speaker 4: force children into doing anything religious, and therefore there is
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  Speaker 4: no stay aublishment clause violation.
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  Speaker 3: The Supreme Court that ruled on the Kentucky case in
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  Speaker 3: nineteen eighty was a very different court from the Roberts
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  Speaker 3: Court of today, with its conservative super majority. I can't
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  Speaker 3: remember the last time religion lost at this court. Do
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  Speaker 3: you think that if this gets to the Supreme Court
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  Speaker 3: that the Kentucky case will stand?
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  Speaker 4: I don't know, because the Supreme Court has traditionally been
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  Speaker 4: especially mindful of the establishment clause in the school context
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  Speaker 4: for a couple of reasons. The first is that, you know,
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  Speaker 4: the children in school are considered very young and very impressionable,
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  Speaker 4: and therefore the government has heightened responsibilities towards them. And
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  Speaker 4: second is that the students at school are a captive audience.
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  Speaker 4: They have no choice but to be there. They're sort
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  Speaker 4: of doubly captives. The government requires that they attend school
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  Speaker 4: at an as school under the control of the school,
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  Speaker 4: and therefore, again there are heightened responsibilities when you're dealing
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  Speaker 4: with the young, impressional students who are also a captive audience.
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  Speaker 4: Will the Supreme Court continue to honor these considerations. I
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  Speaker 4: don't know, Possibly not, Caroline.
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  Speaker 3: Other states have tried to pass laws similar to Louisiana's,
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  Speaker 3: and in Oklahoma, the states Superintendent of Schools ordered that
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  Speaker 3: the Bible be incorporated into lessons, while Florida recently approved
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  Speaker 3: having volunteer religious chaplains serving as school counselors. Is a
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  Speaker 3: conservative Christian movement trying to move the line and incorporate
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  Speaker 3: religion into public school classrooms.
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  Speaker 4: Oh, I don't think there's any questions. I think that
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  Speaker 4: the Supreme Court has made it clear that it is
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  Speaker 4: very sympathetic towards lanes of religious exercise. It has also
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  Speaker 4: made it clear that it does not hold the establishment
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  Speaker 4: clause in high esteem. And so I think this is
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  Speaker 4: the vanguard of trying to get religion back into the schools,
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  Speaker 4: and depending on the outcome of this case, we'll see
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  Speaker 4: what happens in the rest of the country.
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  Speaker 3: This brings up another question in these cases of trying
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  Speaker 3: to incorporate religion into public schools, what religion is being incorporated.
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  Speaker 4: One of the really interesting things about this challenge is
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  Speaker 4: it not just the introduction of religion into school but
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  Speaker 4: it's the introduction of only one faith tradition into the
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  Speaker 4: school because the Ten Commandments on the wall are the
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  Speaker 4: Protestant King Jin's version of the Ten Commandments. Different faith
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  Speaker 4: traditions have different types of Ten Commandments. So, for example,
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  Speaker 4: the Catholic version is different because this one says thou
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  Speaker 4: shalt make to thyself no graven images, whereas that particular
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  Speaker 4: prohibition is not in the Catholic version of the Ten Commandments,
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  Speaker 4: whereas in the Jewish version of the Ten Commandments. The
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  Speaker 4: first commandment here is I am the Lord thy God,
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  Speaker 4: and the Jewish Ten Commandments it is I Am the
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  Speaker 4: Lord thy God that brought you forth from Egypt. And
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  Speaker 4: these are actually crucial theological differences. And I mention this
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  Speaker 4: because under existing doctrine, as the district Court highlighted, the
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  Speaker 4: court made it clear that the state cannot discriminate against
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  Speaker 4: any other religion, it can't favor one religion over others,
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  Speaker 4: it can't intentionally discriminate against other religions. And the choice
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  Speaker 4: of this particular version seems to be doing exactly that.
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  Speaker 4: And it's particularly problematic because if you look at our
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  Speaker 4: history and tradition, at one point to the extent there
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  Speaker 4: was any religion in the schools, it was Protestant religion,
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  Speaker 4: and it was explicitly meant to exclude Catholics. And the
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  Speaker 4: Court has long expressed concern about anti Catholic sentiments in
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  Speaker 4: our country's history, and this could be seen as the
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  Speaker 4: remnant of that historical hostility the Catholics that they so
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  Speaker 4: often complain about and revile. So it might be a
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  Speaker 4: little more complicated for them than it would otherwise be
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  Speaker 4: with another particular religious practice in the schools. But the
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  Speaker 4: fact that this is a Protestant ten Commandments before a
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  Speaker 4: court long characterized much of the history in the United
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  Speaker 4: States as anti Catholic, maybe you would give them pause.
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  Speaker 3: Well, the next stop is the Fifth Circuit. We'll see
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  Speaker 3: what happens there first. Thanks so much, Caroline. That's Professor
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  Speaker 3: Caroline Malikorbin of the University of Miami Law School. I'm
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  Speaker 3: June Grosso and you're listening to Bloomberg. It's one of
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  Speaker 3: two Supreme Court cases within a week over securities fraud
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  Speaker 3: class actions against giant tech companies. Last Wednesday it was
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  Speaker 3: Meta's Facebook. This Wednesday it was in Vidia. Investors are
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  Speaker 3: suing in Vidia for misleading them about how much its
• 12:42
  Speaker 3: profits depended on the volatile crypto money market. But the
• 12:46
  Speaker 3: tech company says the lawsuit isn't supported by evidence like
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  Speaker 3: company documents to back up its claims. Justice Kataji Brown
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  Speaker 3: Jackson questioned how the investors could even get that kind
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  Speaker 3: of evidence at this initial stage of the litigation.
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  Speaker 5: I guess my concern is that you appear to be
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  Speaker 5: requiring for plaintiffs to actually have the evidence in order
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  Speaker 5: to plead their case. And I didn't understand the pleading standards,
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  Speaker 5: even with particularity, to require that they have the documents.
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  Speaker 5: Nor do I understand how they could have the documents
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  Speaker 5: when discovery hasn't occurred yet.
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  Speaker 3: And several of the justices seem to have buyer's remorse
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  Speaker 3: about granting review in the case, saying it was two
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  Speaker 3: facts specific and didn't present the kind of broad legal
• 13:37
  Speaker 3: issues that normally prompt Supreme Court review. Here are Justices
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  Speaker 3: Sonya so To, Mayor Elena Kagan, and Samuel Alito.
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  Speaker 6: We often don't grant sir to error correct? Is this
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  Speaker 6: entire case just an error? Correction? Oh, these particular documents
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  Speaker 6: are not precise enough. It becomes less and less us
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  Speaker 6: clear why we took this case number one as just
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  Speaker 6: as sodam your suggested, and number two why you should
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  Speaker 6: win it.
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  Speaker 7: This is a highly technical subject and I just don't
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  Speaker 7: understand how a court is supposed to evaluate that at
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  Speaker 7: the pleading stage.
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  Speaker 3: Joining me is Gregory gar a partner at Latham and Watkins,
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  Speaker 3: and the former Solicitor General of the United States, Greg
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  Speaker 3: tell Us about the issue before the court.
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  Speaker 8: So, this case involves the pleading requirements under the Private
• 14:31
  Speaker 8: Securities Litigation Reform Act, and specifically what a planiff has
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  Speaker 8: to show to plead with the requisite particularity when the
• 14:42
  Speaker 8: claim is that a company misled investors based on internal
• 14:47
  Speaker 8: information that it knew, and the question is, does a
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  Speaker 8: planiff in that situation have to actually produce or describe
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  Speaker 8: in detail the internal company documents that the planiff says
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  Speaker 8: represents the company's knowledge, or can you prove that knowledge
• 15:02
  Speaker 8: through inferences by relying on expert reports and the like?
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  Speaker 3: And so Justice Katanji Brown Jackson said that in video
• 15:10
  Speaker 3: was basically asking the plaintiffs to have the evidence at
• 15:15
  Speaker 3: the pleating stage before they get discovery.
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  Speaker 8: Right, And that's the pushback that the more liberal justices
• 15:22
  Speaker 8: had for the company's lawyer. The reason for these lawsuits
• 15:27
  Speaker 8: is you typically get into federal court by passing the
• 15:29
  Speaker 8: pleating requirements, and then you get discovery and potentially access
• 15:34
  Speaker 8: to the company's documents. So Justice Jackson sort of said
• 15:38
  Speaker 8: that the company was trying to put the planets in
• 15:40
  Speaker 8: an impossible bind to produce the documents before discovery had ensued.
• 15:46
  Speaker 8: And the company's response to that was that they weren't
• 15:49
  Speaker 8: actually requiring the documents themselves, or that they described the
• 15:53
  Speaker 8: documents in every detail, but they simply had to describe
• 15:57
  Speaker 8: the documents with some particularity. That was really the crux
• 16:01
  Speaker 8: of the case that the company put before the court.
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  Speaker 3: What did you see as the concerns of some of
• 16:06
  Speaker 3: the other justices.
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  Speaker 8: Well, I think that there was a frustration on the
• 16:09
  Speaker 8: court that they really weren't presented with a clear legal
• 16:13
  Speaker 8: rule on either side of the case, and that ultimately
• 16:16
  Speaker 8: the case seemed to boil down to the application of
• 16:19
  Speaker 8: existing law to a really long complaint, which is something
• 16:23
  Speaker 8: that district courts do all the time, but the Supreme
• 16:26
  Speaker 8: Court justices don't do, and particularly don't like to do.
• 16:30
  Speaker 8: And so you could see throughout the argument that there
• 16:32
  Speaker 8: was a frustration on the part of the justices that
• 16:34
  Speaker 8: they were being asked to undertake a task that they
• 16:37
  Speaker 8: typically don't do in engaging in a sort of error
• 16:40
  Speaker 8: correction based on their own reading of the complaint.
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  Speaker 3: Yeah, it seems like justices across the ideological spectrum were
• 16:47
  Speaker 3: concerned about that and showed a little bit of perhaps
• 16:50
  Speaker 3: buyer's remorse. Do you think they were questioning whether they
• 16:53
  Speaker 3: should have granted cert in this case?
• 16:56
  Speaker 8: I think they were. And of course, the Supreme Court
• 16:59
  Speaker 8: gets to decide which cases it hears every year, and
• 17:04
  Speaker 8: so it can pick the cases it likes. And here
• 17:07
  Speaker 8: I think you're right that there were some buyers remorse
• 17:09
  Speaker 8: that the case, once it was fully briefed and presented
• 17:12
  Speaker 8: to the court at argument, wasn't necessarily the case that
• 17:15
  Speaker 8: they thought they were buying when they agreed to hear it.
• 17:17
  Speaker 8: And so one possible outcome is that the court would
• 17:21
  Speaker 8: simply decline to decide the case at all and to
• 17:24
  Speaker 8: dig it, which means that they would dismiss the writ
• 17:27
  Speaker 8: of Cercherai. The rit agreed to hear the case as
• 17:30
  Speaker 8: improvidently granted, so the case could simply go away.
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  Speaker 3: The shareholders claim that in twenty seventeen and twenty eighteen,
• 17:37
  Speaker 3: the CEO hid the fact that record revenue growth was
• 17:41
  Speaker 3: being driven by mining related sales of the company's graphic
• 17:45
  Speaker 3: processing units rather than buy sales for gaming. And it
• 17:49
  Speaker 3: was just as Neil Gorzich who really got into that.
• 17:53
  Speaker 8: So he pressed the lawyers on both sides really about
• 17:56
  Speaker 8: what inferences could be drawn about what the CEO knew,
• 17:59
  Speaker 8: and of question whether or not it was plausible that
• 18:03
  Speaker 8: a CEO wouldn't know about potential downtick in sales and
• 18:08
  Speaker 8: the magnitude alleged here billions of dollars, And so he
• 18:11
  Speaker 8: had tough questions and he clearly was, you know, I think,
• 18:15
  Speaker 8: prepared to get into the weeds of this case to
• 18:17
  Speaker 8: resolve it, just.
• 18:18
  Speaker 3: As Kavanaugh expressed a concern that outside groups and in
• 18:22
  Speaker 3: Vidia's lawyer had raised that the Ninth Circuit decision being
• 18:26
  Speaker 3: appealed here created a sort of blueprint or roadmap for
• 18:31
  Speaker 3: plaintiffs to use to get around the heightened pleading requirements
• 18:37
  Speaker 3: in the private securities that EGAY should reform.
• 18:39
  Speaker 8: Act right and just Kavanaugh was probably the most outspoken
• 18:43
  Speaker 8: justice on the side of the company at the World Argument,
• 18:46
  Speaker 8: and his concern was that if the Ninth Circuit decision
• 18:49
  Speaker 8: in this case is allowed, then it just creates a
• 18:52
  Speaker 8: blueprint or recipe for points to file where anytime you
• 18:56
  Speaker 8: have a stop drop, you can just go out and
• 18:59
  Speaker 8: find an expert that would put together numbers that would
• 19:02
  Speaker 8: contradict a company's public statements and then ledge in a
• 19:06
  Speaker 8: lawsuit that the company keeps records that its executives look
• 19:10
  Speaker 8: at and argued that those records would have matched their
• 19:13
  Speaker 8: own experts numbers, And so there you have it. Presto
• 19:18
  Speaker 8: a securities action that would proceed past the motion to
• 19:21
  Speaker 8: dismiss stage. And in these sorts of cases, particularly with
• 19:25
  Speaker 8: class actions, that's really the ballgame.
• 19:28
  Speaker 3: Because the pressure on the company is then to settle.
• 19:31
  Speaker 8: There's enormous pressure on the companies to settle in that
• 19:34
  Speaker 8: context given the potential damages. Although here Justice Kavanaugh actually
• 19:39
  Speaker 8: pressed the planoff's lawyer on what the magnitude of the
• 19:43
  Speaker 8: damages would be, and the planiff's lawyer was a little
• 19:46
  Speaker 8: bit coy and ultimately said he did not know the
• 19:48
  Speaker 8: answer to that question, you know, perhaps because the amount
• 19:51
  Speaker 8: was potentially quite large.
• 19:53
  Speaker 3: Yeah, that was a really interesting exchange as Justice Kavanaugh
• 19:57
  Speaker 3: kept pressing the attorney for the plane Tives Deepak Gupta.
• 20:02
  Speaker 3: Here's a part of that exchange.
• 20:04
  Speaker 8: How much money is at stake in this case? The
• 20:07
  Speaker 8: words the few are to prevail ultimately in the.
• 20:10
  Speaker 9: Class, not as much as it might seem, because I
• 20:15
  Speaker 9: don't want the court to get the impression that this
• 20:18
  Speaker 9: enormous delta of sales is what's at issue. It would
• 20:22
  Speaker 9: be an issue would be you would have to show
• 20:24
  Speaker 9: lost causation and materiality. What are you seeking, like if
• 20:27
  Speaker 9: you ran the table, what are you seeking? Roughly, I
• 20:30
  Speaker 9: don't know what the numbers are. You're on her.
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  Speaker 3: Several of the justices seem to be saying too. In
• 20:36
  Speaker 3: Nvidia's lawyer, well you want a bright line test, and
• 20:40
  Speaker 3: we can't give you a bright line test. And the
• 20:43
  Speaker 3: Chief Justice didn't seem to be happy with either side's position.
• 20:46
  Speaker 8: He wasn't, as he put it, I think, you know,
• 20:48
  Speaker 8: both sides want to present this in black and white terms,
• 20:51
  Speaker 8: but there really wasn't a clear rule on either side
• 20:54
  Speaker 8: that the court was likely to adopt, and so they
• 20:56
  Speaker 8: were left in this middle ground that again probably would
• 21:00
  Speaker 8: it is a very narrow ruling that would require the
• 21:02
  Speaker 8: justices to roll up their sleeves and apply the pleading
• 21:07
  Speaker 8: standard to the particular allegations here in this extensive complaint,
• 21:11
  Speaker 8: which is something that the Supreme Court Justices probably don't
• 21:14
  Speaker 8: want to spend their time doing.
• 21:16
  Speaker 3: In twenty twenty two, in Vidia agreed to pay five
• 21:19
  Speaker 3: and a half million dollars to settle related allegations by
• 21:23
  Speaker 3: the Securities and Exchange Commission that it didn't properly disclose
• 21:27
  Speaker 3: the impact of cryptomining on its gaming business as usual
• 21:31
  Speaker 3: without admitting or denying the findings. Does that have any
• 21:36
  Speaker 3: impact here?
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  Speaker 6: Not?
• 21:38
  Speaker 9: Really.
• 21:38
  Speaker 8: It came up in oral argument the government was participating
• 21:42
  Speaker 8: in the case, and the Biden administration came in on
• 21:45
  Speaker 8: the side of the plaintiffs here and argued that the
• 21:49
  Speaker 8: Ninth Circuit had gotten it right. And the Justices did
• 21:52
  Speaker 8: ask about that sec action. But this case is really
• 21:55
  Speaker 8: going to rise or fall on its own allegations under
• 21:59
  Speaker 8: the demands of the PSLRA.
• 22:02
  Speaker 3: Just last week, the Justices were considering whether to shut
• 22:06
  Speaker 3: down another class action investors lawsuit against Facebook stemming from
• 22:11
  Speaker 3: the privacy scandal, involving the Cambridge Analytical Political consulting firm.
• 22:16
  Speaker 3: Is there a reason why they took two similar cases
• 22:20
  Speaker 3: this term, is this a real problem?
• 22:22
  Speaker 8: I think it's probably fortuitous that the two cases happened
• 22:26
  Speaker 8: to come to the Court at the same time. That said,
• 22:29
  Speaker 8: both cases came out of the Ninth Circuit, and the
• 22:32
  Speaker 8: Ninth Circuit has been sort of a hotbed for this
• 22:34
  Speaker 8: kind of litigation, and so it's not surprising in that
• 22:37
  Speaker 8: sense that some of these cases has gotten to the
• 22:40
  Speaker 8: Supreme Court. But having taken two of these cases and
• 22:42
  Speaker 8: heard them in the same week, and I think it's
• 22:44
  Speaker 8: sort to say that in most cases the justices were
• 22:47
  Speaker 8: grappling for answers. It may be a while before the
• 22:50
  Speaker 8: Justices decide to wade back into this area.
• 22:54
  Speaker 3: So what's your take. Do you think that there needs
• 22:56
  Speaker 3: to be more specificity and pleading in the kinds of cases?
• 23:01
  Speaker 8: I think, you know, Congress was wise to pass the
• 23:04
  Speaker 8: Private Securities Litigation Reform Act, and those pleading standards you know,
• 23:09
  Speaker 8: have and should have teeth. I think in this area
• 23:13
  Speaker 8: usually the pleting standard at the motion to the Smiths
• 23:15
  Speaker 8: stage is you know, the critical test in the litigation,
• 23:19
  Speaker 8: because once you get past that pleting stage, then you
• 23:22
  Speaker 8: get discovery. The cost of litigation rise greatly and you
• 23:26
  Speaker 8: have a threat of enormous damages that often push defendants
• 23:30
  Speaker 8: into settlement even when they strongly believe that there was
• 23:33
  Speaker 8: no securities fraud in the first place. So I think
• 23:36
  Speaker 8: courts you have to police these requirements carefully. So in
• 23:39
  Speaker 8: that sense, it's not surprising that the Supreme Court with
• 23:42
  Speaker 8: intervene where it fears that a court has either veered
• 23:45
  Speaker 8: from the law or where courts have taken conflicting positions
• 23:49
  Speaker 8: on what these standards require.
• 23:51
  Speaker 3: Always great to get your insights, Greg, Thanks so much.
• 23:54
  Speaker 3: That's Gregorgar of Latham and Watkins, the former US Solicitor General.
• 23:58
  Speaker 3: I'm June Grosso on your list, listening to Bloomberg.
• 24:01
  Speaker 2: One day one of my new administration, we will begin
• 24:04
  Speaker 2: the largest deportation operation in American history.
• 24:08
  Speaker 8: We have no choice.
• 24:09
  Speaker 3: The centerpiece of Donald Trump's re election campaign was avowed
• 24:13
  Speaker 3: to carry out the largest mass deportations of illegal immigrants
• 24:18
  Speaker 3: in the country's history, and the President elect has already
• 24:21
  Speaker 3: decided on the person to carry out his plan as
• 24:24
  Speaker 3: borders are former ICE Director Tom Homan.
• 24:28
  Speaker 1: We're going to take the handcuffs off Ice that the
• 24:30
  Speaker 1: Biden administration put on him.
• 24:31
  Speaker 3: Trump has even decided on the two hundred and twenty
• 24:34
  Speaker 3: five year old law he'll use.
• 24:36
  Speaker 2: I will invoke the Alien Enemies Act of seventeen ninety eight.
• 24:42
  Speaker 3: But there are about eleven million undocumented immigrants in the country,
• 24:47
  Speaker 3: and there are laws protecting them, logistical problems sending them home,
• 24:51
  Speaker 3: and although Trump says there's no price tag, the cost
• 24:55
  Speaker 3: of deporting them is estimated at three hundred and fifty
• 24:59
  Speaker 3: billion dollars. Joining me is an expert in immigration law,
• 25:03
  Speaker 3: Leon Fresco, a partner at Holland and Knight and the
• 25:05
  Speaker 3: former head of the Office of Immigration Litigation at the
• 25:09
  Speaker 3: Department of Justice. Join the Obama administration. Leon tell us
• 25:13
  Speaker 3: what it would take to carry out these nasty portations
• 25:17
  Speaker 3: and some of the obstacles.
• 25:19
  Speaker 1: It's going to be a multi stage process, and it's
• 25:23
  Speaker 1: going to require an all hands on that governmental approach,
• 25:27
  Speaker 1: because this is not just a matter of the Department
• 25:30
  Speaker 1: of Homeland Security or ICE or the border. It's going
• 25:33
  Speaker 1: to require the State Department. It's going to require the
• 25:36
  Speaker 1: entire diplomatic corps negotiating with all of the countries in
• 25:40
  Speaker 1: South America, in the Middle East, and in China that
• 25:44
  Speaker 1: we're trying to actually deport people too. And so this
• 25:47
  Speaker 1: is not going to be a very simple first step.
• 25:50
  Speaker 1: You've heard Tom Holman say in various contexts that this
• 25:54
  Speaker 1: isn't going to just be a grab bag where individuals
• 25:58
  Speaker 1: are simply apprehended for no reason, but that there's going
• 26:01
  Speaker 1: to be a targeted effort here. So the first targeted
• 26:04
  Speaker 1: effort would obviously be criminal non citizens. So anybody with
• 26:09
  Speaker 1: a criminal record is going to be the number one
• 26:11
  Speaker 1: top priority for removal. So the question is, well, when
• 26:15
  Speaker 1: you apprehend those individuals, where do you put them? There's
• 26:19
  Speaker 1: about forty to forty five thousand beds that are available
• 26:22
  Speaker 1: right now. Obviously, if you're doing the largest deportation program
• 26:27
  Speaker 1: in history, you're going to need a lot more beds.
• 26:29
  Speaker 1: Where are those beds coming from. We've heard the idea
• 26:32
  Speaker 1: that that could be a military basis, that there would
• 26:35
  Speaker 1: be barrack for that purpose. So fine, you place people
• 26:40
  Speaker 1: in those military barracks, you have them in detention, you
• 26:43
  Speaker 1: put them in detention proceeding, And the question is will
• 26:48
  Speaker 1: there be a place to actually deport those people to
• 26:50
  Speaker 1: when this is all said and done, will there be
• 26:53
  Speaker 1: countries that are willing to actually accept these individuals. So
• 26:56
  Speaker 1: that's where again the State Department is going to have
• 26:59
  Speaker 1: to play in What kind of.
• 27:01
  Speaker 3: Due process would the immigrants be entitled to before being deported?
• 27:07
  Speaker 1: The question is, are you going to need to do
• 27:09
  Speaker 1: a whole due process deportation hearing where these hearings are
• 27:12
  Speaker 1: currently backed up by seven years in the immigration court,
• 27:16
  Speaker 1: or will Trump be able to get away with using
• 27:18
  Speaker 1: what's called the Alien Enemies Act, which is a law
• 27:21
  Speaker 1: that's been around since the late seventeen hundred, which allows
• 27:25
  Speaker 1: deportation without due process. But you have to show that
• 27:29
  Speaker 1: a country is specifically trying to infiltrate the United States
• 27:34
  Speaker 1: with people designed to destabilize the United States. So will
• 27:38
  Speaker 1: that be reviewable in a court of law? Because courts
• 27:41
  Speaker 1: have said that things like that in the past are
• 27:44
  Speaker 1: political questions that are not reviewable. Will they be reviewable?
• 27:48
  Speaker 1: And if they are reviewable, will courts say that any
• 27:51
  Speaker 1: country people are from is actually doing this on purpose,
• 27:54
  Speaker 1: is actually sending criminal foreign nationals into the United States
• 27:58
  Speaker 1: for the purpose of the states the country. So all
• 28:01
  Speaker 1: of those are questions that are going to have to
• 28:03
  Speaker 1: be grappled with pretty early on in order to determine
• 28:08
  Speaker 1: whether such an operation could be successful.
• 28:11
  Speaker 3: Will it be difficult for ice to even find the
• 28:14
  Speaker 3: people it wants to deport.
• 28:16
  Speaker 1: Well, believe it or not, that's actually the easy part.
• 28:18
  Speaker 1: These days. With all of the artificial intelligence that is
• 28:22
  Speaker 1: has procured in the last several years and databases and documents,
• 28:27
  Speaker 1: pretty much anyone who's left any kind of digital footprint,
• 28:30
  Speaker 1: ICE knows where they are, either from their cells, phone,
• 28:33
  Speaker 1: their car, whether they ordered a pizza, anything of this nature.
• 28:37
  Speaker 1: So unless you've been living in the middle of the
• 28:40
  Speaker 1: woods as a hermit, ice will be able to find
• 28:42
  Speaker 1: you if it wants to find you, relatively quickly. So
• 28:45
  Speaker 1: that's sort of a twentieth century concern at this point.
• 28:49
  Speaker 1: The finding is the easy part. The question is what
• 28:52
  Speaker 1: do you do when you find the person? Where do
• 28:54
  Speaker 1: you literally detain the person? And where do you actually
• 28:58
  Speaker 1: deport the person? And that where the Trump administration is
• 29:02
  Speaker 1: going to have their work cut out for them.
• 29:03
  Speaker 3: Which countries have not agreed to receive deportation flights, So
• 29:09
  Speaker 3: right now.
• 29:09
  Speaker 1: It's almost impossible to deport anyone to China, which is
• 29:13
  Speaker 1: a big source of our removal orders. We have tens
• 29:15
  Speaker 1: of thousands of not over one hundred thousand removal orders
• 29:18
  Speaker 1: for people who can be deported to China, but China
• 29:21
  Speaker 1: won't accept those individuals. Cuba is another big one. Cuba.
• 29:25
  Speaker 1: There's probably hundreds of thousands of Cubans who can be
• 29:28
  Speaker 1: deported to Cuba, but Cuba has not and probably will
• 29:31
  Speaker 1: not accept people. Given the country is almost in complete
• 29:35
  Speaker 1: ruins and there's another hurricane potentially coming there and so
• 29:39
  Speaker 1: the country is still destabilized. Accepting hundreds of thousands of
• 29:42
  Speaker 1: people is likely not an option there. Venezuela has not
• 29:46
  Speaker 1: accepted recently people to be deported back to Venezuela. Haiti
• 29:51
  Speaker 1: basically has no government. They fired their prime minister. How
• 29:55
  Speaker 1: do you deport people there? Nicaragua is another country that
• 29:59
  Speaker 1: doesn't let people get deported back to Nicaragua from the
• 30:02
  Speaker 1: United States. And so those are just some examples, but
• 30:08
  Speaker 1: pretty much any country, if you're going to start doing
• 30:10
  Speaker 1: large numbers of people may start objecting to that as saying, look,
• 30:15
  Speaker 1: you're going to destabilize our country. Because the United States
• 30:18
  Speaker 1: is a big country with three hundred and fifty million people,
• 30:21
  Speaker 1: but countries with a million people, if you suddenly put
• 30:24
  Speaker 1: in fifty thousand deportees who are all criminals, that could
• 30:29
  Speaker 1: lead to quite the destabilization in those countries, and so
• 30:32
  Speaker 1: they may do everything possible to try to thwart these deportations.
• 30:37
  Speaker 3: Trump said on NBC. I think that there's no price
• 30:40
  Speaker 3: tag on this, but I saw estimates that put the
• 30:43
  Speaker 3: cost at more than three hundred billion dollars.
• 30:46
  Speaker 1: Well, it depends what kinds of costs you're incorporating into this.
• 30:50
  Speaker 1: So first of all, there's the normal cost that everyone
• 30:53
  Speaker 1: would agree to include, which are the costs of detention,
• 30:57
  Speaker 1: which include obviously care and feeding and medicine and all
• 31:00
  Speaker 1: of that for the people while they're in custody. The
• 31:02
  Speaker 1: cost of the actual removal itself, the planes. Many times
• 31:05
  Speaker 1: ICE uses chartered planes to do this, all of that,
• 31:09
  Speaker 1: But then they talk about the cost of what happens
• 31:12
  Speaker 1: then to the economy because interestingly, an undocumented person when
• 31:17
  Speaker 1: they're working in the United States is a net positive
• 31:22
  Speaker 1: to the US federal budget because what's happening is they're
• 31:24
  Speaker 1: paying taxes and they're not getting any benefits because they
• 31:28
  Speaker 1: don't qualify for any benefits. And so this is actually
• 31:31
  Speaker 1: something that the Congressional Budget Office talks about all the time.
• 31:35
  Speaker 1: It's only when people get status and can get benefits
• 31:38
  Speaker 1: that they become potentially a net negative to the budget.
• 31:41
  Speaker 1: But when you remove all these undocumented workers from the economy,
• 31:45
  Speaker 1: you actually create a larger budget deficit hole, and so
• 31:50
  Speaker 1: that's also being counted toward those three hundred billion dollars.
• 31:53
  Speaker 3: There are some immigration policies that Trump wants to put
• 31:57
  Speaker 3: in place. Again, why does the remain in Mexico. How
• 32:00
  Speaker 3: difficult would it be to restore that?
• 32:03
  Speaker 5: Well?
• 32:03
  Speaker 1: Under the remain in Mexico policy, the way that would
• 32:05
  Speaker 1: work is that in an individual enters the United States
• 32:08
  Speaker 1: and asks for asylum, their asylum application is put into
• 32:12
  Speaker 1: the system and is put in line. But where you
• 32:15
  Speaker 1: wait is in Mexico. You don't wait in the United States.
• 32:19
  Speaker 1: And so that was finally allowed by the Supreme Court
• 32:23
  Speaker 1: as legal in twenty nineteen and was about to be
• 32:27
  Speaker 1: implemented in earnest by the Trump administration until COVID happened,
• 32:31
  Speaker 1: And then that didn't end up happening because what happened
• 32:34
  Speaker 1: was instead of putting the cases in the line, the
• 32:37
  Speaker 1: Trump administration simply just rejected people. And that actually continued
• 32:42
  Speaker 1: into the Biden administration, and, believe it or not, as
• 32:45
  Speaker 1: happening now. So the remain in Mexico policy will only
• 32:49
  Speaker 1: be needed if the band that is currently in place
• 32:53
  Speaker 1: which the Biden administration has in place at the moment,
• 32:57
  Speaker 1: is overturned by the court. Now it is likely to
• 33:00
  Speaker 1: be overturned by the courts. That case has sort of
• 33:02
  Speaker 1: been low walked because of the election. I don't think
• 33:06
  Speaker 1: that the people suing wanted to destabilize the border situation
• 33:10
  Speaker 1: right before the election. But now that the election has happened,
• 33:14
  Speaker 1: that case is back up in the forefront. And if
• 33:18
  Speaker 1: the Biden border policy is enjoined, which is essentially a ban,
• 33:23
  Speaker 1: nobody can apply for asylum right now who entered illegally
• 33:27
  Speaker 1: into the United States. If that ban is taken away
• 33:30
  Speaker 1: by the courts and said that that ban is illegal,
• 33:33
  Speaker 1: that's when the Trump administration will need to use remain
• 33:36
  Speaker 1: in Mexico. And the obstacle there is that Mexico has
• 33:41
  Speaker 1: to agree to do this, and a couple of things
• 33:43
  Speaker 1: have happened since the last Trump administration. The Supreme Court
• 33:46
  Speaker 1: of Mexico has said that that's not legal. But the
• 33:50
  Speaker 1: question will be what does that mean If Trump threatens
• 33:53
  Speaker 1: Mexico with fifty percent tariffs on their cars unless they
• 33:57
  Speaker 1: do this. Does the new president of Mexico, Miss Shinbaum,
• 34:01
  Speaker 1: then say, well, we're gonna have to figure something out
• 34:04
  Speaker 1: with our Supreme Court and everything else to make this
• 34:06
  Speaker 1: a possibility, because we don't want fifty percent tariffs on
• 34:09
  Speaker 1: our cars. So all of these levers are in play
• 34:13
  Speaker 1: to try to figure out whether remain in Mexico needs
• 34:16
  Speaker 1: to be placed back and can it be placed back?
• 34:19
  Speaker 3: And what do you think about the choice of Tom
• 34:21
  Speaker 3: Holman as borders.
• 34:22
  Speaker 1: Are Tom Holman, the thing I can say about him
• 34:25
  Speaker 1: is he has always been, under many different presidents, a
• 34:28
  Speaker 1: public servant who salutes the flag, and when people have
• 34:32
  Speaker 1: given him a lawful order, he has executed the lawful order.
• 34:35
  Speaker 1: And so this is what he's being charged to do now,
• 34:38
  Speaker 1: is to lead the largest deportation program in history. Now,
• 34:42
  Speaker 1: because he comes from Ice and because he has lived
• 34:46
  Speaker 1: this for several decades, he understands the actual challenges from
• 34:51
  Speaker 1: a legal and logistical standpoint in a way that appointing
• 34:55
  Speaker 1: somebody who's a more political person but less of a
• 34:59
  Speaker 1: detailed orient the person wouldn't know. And that's why I've
• 35:02
  Speaker 1: heard come home and say things like, look, we're gonna
• 35:04
  Speaker 1: have priorities, We're going to have certain people that we
• 35:07
  Speaker 1: look at first, because at the end of the day,
• 35:10
  Speaker 1: that's actually how you have to do this Leon.
• 35:12
  Speaker 3: We've talked a lot about the obstacles, but bottom line,
• 35:16
  Speaker 3: do you think Trump will be able to carry out
• 35:19
  Speaker 3: these nass deportations?
• 35:22
  Speaker 1: People don't remember what happened in two thousand and seven.
• 35:26
  Speaker 1: Two thousand and seven was the last time there was
• 35:28
  Speaker 1: actually any significant robust immigration enforcement in the middle of
• 35:33
  Speaker 1: the street, these sort of large scale raids of work fits.
• 35:37
  Speaker 1: When that last happened, that puts such fear in the
• 35:41
  Speaker 1: immigrant community that people stopped going to work, people were hiding.
• 35:45
  Speaker 1: So what I think they're actually trying to accomplish more
• 35:48
  Speaker 1: than anything, is like what you're seeing in all these
• 35:51
  Speaker 1: other areas with foreign policy and with tariffs and where
• 35:54
  Speaker 1: everything else, you sort of lay down a marker that
• 35:57
  Speaker 1: this is going to be the worst thing you've ever seen.
• 36:00
  Speaker 1: And what you're hoping it does is it incentivizes enough
• 36:03
  Speaker 1: people to self support you are going to see a
• 36:06
  Speaker 1: more robust effort to remove people. But I think at
• 36:10
  Speaker 1: the end of the day, if four hundred thousand people
• 36:13
  Speaker 1: end up getting removed in twenty twenty five, that might
• 36:16
  Speaker 1: be ambitious based on where the infrastructure is now, and
• 36:21
  Speaker 1: so we're not talking about ten millions but the hope
• 36:24
  Speaker 1: is that if it's done in a way that creates
• 36:27
  Speaker 1: enough nervousness in the community, that individuals will decide that
• 36:32
  Speaker 1: they can't live with this level of nervousness and they
• 36:34
  Speaker 1: would take matters into their own hands and leave the country.
• 36:38
  Speaker 3: Thanks Leon, always a pleasure. That's Leon Fresco of Honda Knight.
• 36:42
  Speaker 3: And that's it for this edition of the Bloomberg Law Show.
• 36:44
  Speaker 3: Remember you can always get the latest legal news by
• 36:47
  Speaker 3: subscribing to the Bloomberg Law Podcast or downloading this show
• 36:51
  Speaker 3: at Bloomberg dot com, slash podcast, slash Law. I'm joom
• 36:55
  Speaker 3: Bronco and you're listening to Bloomberg