Latest / Bloomberg Law / No Constitutional Right to Clean Drinking Water & TPS for Salvadorans

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No Constitutional Right to Clean Drinking Water & TPS for Salvadorans · Bloomberg Law

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  Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
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  Speaker 1: In a 10-to-5 decision, the full Fifth Circuit Court of
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  Speaker 1: Appeals ruled that the U.S. Constitution doesn't guarantee the right
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  Speaker 1: to clean drinking water, rejecting a lawsuit by residents of Jackson, Mississippi,
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  Speaker 1: over the city's contaminated water system. The residents claimed that
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  Speaker 1: officials deliberately allowed lead to contaminate the drinking water, harming
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  Speaker 1: those who drank it, and violating their constitutional right to
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  Speaker 1: bodily integrity under the 14th Amendment's Due Process Clause. The
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  Speaker 1: majority was composed of all Republican appointees, and the opinion
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  Speaker 1: by Judge Kurt Engelhardt, a Trump appointee, said that while
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  Speaker 1: the deprivation of clean water was grievous... It did not
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  Speaker 1: infringe upon any deeply rooted constitutional right. Joining me is
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  Speaker 1: environmental lawyer Jennifer Novak. Jennifer, tell us about the underlying
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  Speaker 1: dispute here.
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  Speaker 2: In the Sterling case, the city of Jackson, Mississippi, was
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  Speaker 2: providing drinking water to its citizens, and by 2013 knew
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  Speaker 2: they had a real problem with the quality of water.
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  Speaker 2: And the combination of aging infrastructure using lead pipes, along
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  Speaker 2: with a high acidity level from where they were taking
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  Speaker 2: the water meant that instead of just passing through the pipes,
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  Speaker 2: the water was picking up lead along the way. And
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  Speaker 2: by the time 2013 rolled around, the city was well
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  Speaker 2: aware that the levels of lead were at least two
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  Speaker 2: times too high for public health and safety. And yet,
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  Speaker 2: It didn't tell the public that there was a problem.
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  Speaker 2: It continued to serve them the same water. And when
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  Speaker 2: questioned about the water quality, the city lied effectively or
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  Speaker 2: made misstatements saying that the water was safe. So the
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  Speaker 2: citizens continued to drink it. And what ended up happening
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  Speaker 2: is once this was discovered, a number of citizens brought
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  Speaker 2: a lawsuit against city officials and citing our federal civil
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  Speaker 2: rights laws, their 14th Amendment right to life and liberty
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  Speaker 2: and property had been violated because of these two different
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  Speaker 2: actions by the city officials.
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  Speaker 1: This was a decision by the full Fifth Circuit en banc.
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  Speaker 1: Explain why the majority found that the lawsuit by the
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  Speaker 1: Jackson residents alleged violations of due process rights that were
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  Speaker 1: not granted by the Constitution.
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  Speaker 2: I mean, if we look at the literal text of
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  Speaker 2: the Constitution itself, obviously there is no right to clean water.
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  Speaker 2: But both the Fifth Amendment at the federal level and
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  Speaker 2: the 14th Amendment at the state level have been read
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  Speaker 2: to mean that we do have certain levels of bodily
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  Speaker 2: autonomy and integrity and that a state cannot, for example,
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  Speaker 2: allow an officer to assault you. They can't force you
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  Speaker 2: to have a surgery if you don't want it.
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  Speaker 3: And so it's.
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  Speaker 2: Along the lines of this bodily integrity that the plaintiffs
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  Speaker 2: were saying they had been violated because they were led
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  Speaker 2: to believe they could ingest this water safely. And yet
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  Speaker 2: it was not safe to do so. And presumably that
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  Speaker 2: meant they weren't really consenting to drink this contaminated water.
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  Speaker 2: And that was the equivalent of forcing them to take
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  Speaker 2: a medicine or ingest a poison or something along those lines.
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  Speaker 1: And do you think that sort of stretches constitutional rights?
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  Speaker 1: The court here looked for the history and tradition, and
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  Speaker 1: they say there's no historical tradition or Supreme Court precedent
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  Speaker 1: on this.
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  Speaker 4: Right.
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  Speaker 3: So there is a conflict.
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  Speaker 2: Most courts in the United States have not addressed this
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  Speaker 2: exact same situation. But we do have the Sixth Circuit,
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  Speaker 2: which heard all the Flint, Michigan cases on the Sixth
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  Speaker 2: Circuit case. came out differently saying, no, we think that
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  Speaker 2: the government did have a requirement to tell you the
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  Speaker 2: truth and you have the right to at least discover
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  Speaker 2: the true facts before we shut you down. Here in
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  Speaker 2: the Fifth Circuit, what they really held on to is
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  Speaker 2: perhaps not unsurprising given the Dobbs decision by the Supreme Court,
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  Speaker 2: which is a look at history.
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  Speaker 3: And if we don't see that in.
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  Speaker 2: History, courts were ruling a certain way, then we're not
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  Speaker 2: going to be the first court to do so and saying, look,
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  Speaker 2: You have no right to government services. You don't even
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  Speaker 2: have a right to having the government give.
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  Speaker 3: You services well.
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  Speaker 2: So you've been harmed. We recognize that. We feel bad
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  Speaker 2: for you. But that doesn't make it a constitutional right.
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  Speaker 2: And you need to pursue other remedies. That's really where
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  Speaker 2: the Fifth Circuit came out. And it does create a
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  Speaker 2: bit of an interesting situation. If you're a prisoner, you
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  Speaker 2: can't be forced to ingest something that you don't want
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  Speaker 2: to And yet, if you're one of many people living
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  Speaker 2: in a city who presumably think you are drinking clean
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  Speaker 2: water and wouldn't drink it if you knew it was
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  Speaker 2: going to be harmful, perhaps you don't have that same right,
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  Speaker 2: even though it's the same constitution that we're talking about.
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  Speaker 2: So there is a bit of a contradiction as far
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  Speaker 2: as what the courts are finding, how they're.
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  Speaker 3: Applying those rights.
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  Speaker 2: And again, there's a tendency within courts courts right now
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  Speaker 2: to say, we don't want to extend the Constitution to
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  Speaker 2: create new rights. We're going to interpret it more as
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  Speaker 2: a check on government power and just talk about what
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  Speaker 2: the government can't do to you.
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  Speaker 1: In the dissent was a George W. Bush appointee and
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  Speaker 1: the four liberal members of the court. Is this a
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  Speaker 1: conservative liberal issue? or split?
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  Speaker 3: It can be.
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  Speaker 2: What the dissenters noted was that this is a little
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  Speaker 2: bit different from saying that you have a right to
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  Speaker 2: have the state or a municipality give you clean water.
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  Speaker 2: This is a situation where the city has affirmatively taken
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  Speaker 2: on the obligation to serve its citizens drinking water. And
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  Speaker 2: we're not just talking about a situation where maybe they
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  Speaker 2: were incompetent, but once they knew, they still failed to
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  Speaker 2: act in the citizens' best interest. So the minority judges
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  Speaker 2: felt that this argument of there being a state-created danger
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  Speaker 2: was one worth looking at, and not necessarily that the
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  Speaker 2: plaintiffs would win, but that they had the right to
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  Speaker 2: pursue this a little further to see if maybe there
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  Speaker 2: was some traction there. Maybe they would uncover something that
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  Speaker 2: would allow them to keep going.
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  Speaker 1: The dissenting judge, Judge Katharina Haynes, a George W. Bush appointee,
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  Speaker 1: said that other courts have addressed that theory of state-created danger.
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  Speaker 1: And the Fifth Circuit stands practically alone in its decades-long fence-sitting,
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  Speaker 1: declining to either adopt or definitively rule out the state-created
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  Speaker 1: danger doctrine. So is there a split in the circuits
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  Speaker 1: on that or on this whole issue so that it
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  Speaker 1: might go to the Supreme Court?
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  Speaker 3: So two different issues.
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  Speaker 2: One is that because we have the Sixth Circuit line
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  Speaker 2: of cases that are exactly opposite of what the Fifth
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  Speaker 2: Circuit found. On the primary issue, we definitely have a
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  Speaker 2: split of authority. And there's enough case law from other circuits.
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  Speaker 2: For example, in the Second Circuit, after 9-11, the EPA
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  Speaker 2: was found to have mischaracterized, misrepresented air quality, and the
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  Speaker 2: courts did not allow those lawsuits to go forward. So
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  Speaker 2: it's more aligned with the Fifth Circuit. So just on
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  Speaker 2: that alone, It could be something that the United States
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  Speaker 2: Supreme Court would want to take up because there is
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  Speaker 2: now a split amongst the districts. On this other issue
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  Speaker 2: of the state creative danger, yes, it was pointed out
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  Speaker 2: by the dissent that almost all the other circuits have
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  Speaker 2: ruled in a way that is different than what the
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  Speaker 2: Fifth Circuit has done here. That also then sets up
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  Speaker 2: a different type of split on that issue alone. The
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  Speaker 2: question is whether if you are the Jackson City plaintiff's
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  Speaker 2: that's where you want to go, as opposed to trying
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  Speaker 2: a different tact.
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  Speaker 1: Yeah, what the majority suggested was that plaintiffs pursue tort claims,
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  Speaker 1: elect officials who will better manage the water system, and
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  Speaker 1: petition representatives for other solutions.
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  Speaker 2: I saw that, and one of them is always, well,
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  Speaker 2: you could elect somebody better. They do note that if
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  Speaker 2: you want damages, then tort claims are your only avenue.
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  Speaker 2: and you can give it a shot. That doesn't mean
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  Speaker 2: it's going to be easy. It doesn't mean you're going
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  Speaker 2: to get everything that you believe you are entitled to.
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  Speaker 3: And they coupled it.
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  Speaker 2: Also with you can work within the system. Perhaps your
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  Speaker 2: local officials will create.
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  Speaker 3: Some sort of fund or system of redress.
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  Speaker 2: And while the court doesn't get that specific, I think
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  Speaker 2: that's what they were alluding to, that there could be
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  Speaker 2: some reparations at that level, in addition to electing better
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  Speaker 2: officials who will pay better attention to you, won't lie
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  Speaker 2: to you, etc. I'll note that if the issue is
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  Speaker 2: fixing the problem, you do have federal laws like the
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  Speaker 2: Clean Water Act, the Safe Drinking Water Act, but those
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  Speaker 2: are to fix the problem and maybe penalize the actors.
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  Speaker 2: That doesn't give you money for the damages that you
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  Speaker 2: may have suffered.
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  Speaker 1: What's your take on whether or not the Constitution guarantees
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  Speaker 1: this right to safe water?
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  Speaker 2: I find it a little hard to square some of
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  Speaker 2: the cases where we have said, okay, that is a
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  Speaker 2: bodily integrity situation, but this one is not.
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  Speaker 3: And I don't know if.
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  Speaker 2: At the end of the day, it becomes a constitutional
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  Speaker 2: question so much as a real fear. And maybe the
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  Speaker 2: best way I could put it is a no good
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  Speaker 2: deed going unpunished. If your a city and you're providing
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  Speaker 2: drinking water or municipal waste services or something to the
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  Speaker 2: community to be helpful, you know, because that's what people
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  Speaker 2: think government should do, then you really might be opening
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  Speaker 2: yourself up to a whole slew of lawsuits and complaints
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  Speaker 2: over every thing you might do wrong, every bad.
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  Speaker 3: Decision you make.
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  Speaker 2: So to that extent, I understand from a policy standpoint,
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  Speaker 2: we don't want this to rise to the level of
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  Speaker 2: a constitutional problem. And I think my real problem is
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  Speaker 2: when we have those contradictory interpretations. Well, we'll say it's
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  Speaker 2: fine if you're a prisoner being force-fed something or being
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  Speaker 2: forced into a surgery. But if you're one of thousands,
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  Speaker 2: if not millions of people consuming lead in your water, oops,
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  Speaker 2: That's where I come out with this. I'm not certain
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  Speaker 2: I'm going to say that we automatically have a right
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  Speaker 2: in the Constitution to everything, but I probably do trend
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  Speaker 2: more toward looking at this as it's a little bit
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  Speaker 2: of a catch-22. We're going to say that historically speaking,
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  Speaker 2: we didn't recognize this as a right, therefore we won't now.
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  Speaker 2: I think our expectations of what the government is and
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  Speaker 2: its role and just our society have changed. And I'm
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  Speaker 2: not going to hew to the exact words of the
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  Speaker 2: Constitution and say that that's the only thing it could
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  Speaker 2: ever mean. People didn't have municipal drinking water at the
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  Speaker 2: time that the Constitution was written. They were primarily relying
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  Speaker 2: on well water and other things. And we have drastically
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  Speaker 2: changed where we are as a society.
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  Speaker 1: And that's the constant problem with the Supreme Court's history
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  Speaker 1: and tradition test. Now, other states, including California and Virginia,
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  Speaker 1: have protected access to safe water. So does that sort
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  Speaker 1: of tell you that officials in those states think that
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  Speaker 1: it's not in the Constitution and they need to pass
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  Speaker 1: laws to ensure safe water?
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  Speaker 2: It certainly does suggest that, or at least a belt
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  Speaker 2: and suspenders. If the federal government isn't going to protect us,
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  Speaker 2: we'll protect our own people. And I believe there are
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  Speaker 2: two states, Pennsylvania and Montana, that have written something similar
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  Speaker 2: into their state constitutions, whereas states like California and many
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  Speaker 2: others passed laws to that effect. I think in the
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  Speaker 2: case of many states, they simply say you have a
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  Speaker 2: right to a healthful environment. I think California's law goes
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  Speaker 2: so far as to say you have a right to
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  Speaker 2: clean water. And certainly even in a state like California,
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  Speaker 2: we have both rural and municipal users who can't.
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  Speaker 3: Turn on the tap and simply drink the water from it.
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  Speaker 1: The majority also found that you don't have the right
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  Speaker 1: to have officials tell you the truth. I mean, is
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  Speaker 1: that basically what they said?
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  Speaker 3: That's what they said.
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  Speaker 2: The Sterling Court, the Fifth Circuit said, of course, we
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  Speaker 2: want our public officials to be truthful and honest with us.
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  Speaker 2: But we just don't think that rises to the level
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  Speaker 2: of a constitutional right.
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  Speaker 3: And I agree with them.
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  Speaker 2: Again, it's a slippery slope if every not entirely truthful
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  Speaker 2: press release that a government issues suddenly becomes, you know,
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  Speaker 2: my constitutional right has been violated.
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  Speaker 3: In some way.
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  Speaker 2: I do think at some point in time, you can
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  Speaker 2: probably go down that slope and find situations where that
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  Speaker 2: might rise to that type of infringement. But for the
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  Speaker 2: most part, I think it also has the danger of
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  Speaker 2: confusing the Situations where the government is acting on the
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  Speaker 2: best information it has at the time, learns something else
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  Speaker 2: and has to change direction or change opinion, change a policy.
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  Speaker 2: And at what point in time do we call that
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  Speaker 2: misrepresentation versus that's just the scientific process at work?
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  Speaker 1: The Fifth Circuit is the most conservative circuit in the country,
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  Speaker 1: and it often has decisions that are outliers sometimes. So
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  Speaker 1: how important is this particular decision we've been talking about?
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  Speaker 2: I would call it important, but I did make the
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  Speaker 2: comment earlier that I'm not certain if I was the
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  Speaker 2: Jackson plaintiffs, if I would try to take this to
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  Speaker 2: the Supreme Court. The Fifth Circuit is the circuit that
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  Speaker 2: resides over Texas, Louisiana, Mississippi. So really small part of
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  Speaker 2: the country, already conservative leaning in its courts. It could
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  Speaker 2: be seen as a standalone. I know it got the headlines,
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  Speaker 2: everyone talking about no constitutional right to clean water, which
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  Speaker 2: I think offends most people. I think we believe that
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  Speaker 2: we have the right to not be poisoned by our
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  Speaker 2: public drinking water or to at least have an honest
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  Speaker 2: assessment of what's in it. We've had other situations more
• 14:43
  Speaker 2: recently where we're now testing, for example, microplastics in drinking water.
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  Speaker 2: And that's a real shocker to people who assumed that
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  Speaker 2: that we wouldn't have plastic in our drinking water.
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  Speaker 3: So I think that.
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  Speaker 2: As we continue to see infrastructure fail, as we continue
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  Speaker 2: to see a lack of investment in infrastructure to address
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  Speaker 2: these kinds of problems, and as we continue to understand
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  Speaker 2: more and more about environmental issues within our cities and
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  Speaker 2: throughout the country, we will be looking for more opportunities
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  Speaker 2: to ensure that our government officials are doing the jobs
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  Speaker 2: we would like them to do. And as we know,
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  Speaker 2: the legislative process is not always the best one to
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  Speaker 2: make progress here, but perhaps at the local level, it
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  Speaker 2: will still work that way.
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  Speaker 3: Maybe even at the state level, it will still work
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  Speaker 3: that way.
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  Speaker 2: And people just need to be informed and then they
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  Speaker 2: need to have a voice and use that voice as well.
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  Speaker 2: And courts cannot be the only place where we're making
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  Speaker 2: that happen.
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  Speaker 1: It's been great having you on, Jennifer. Thanks so much.
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  Speaker 1: That's environmental attorney Jennifer Novak. Coming up next, the Trump
• 15:53
  Speaker 1: administration is once again asking the Supreme Court to get
• 15:57
  Speaker 1: involved in an election-related issue. This is Bloomberg. It's the
• 16:03
  Speaker 1: latest high-stakes election-related fight to reach the Supreme Court recently,
• 16:08
  Speaker 1: with less than two months until the November midterms. A
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  Speaker 1: federal judge had blocked the administration from resuming expansion of
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  Speaker 1: an internal government database available to states to verify the
• 16:21
  Speaker 1: citizenship of voters. saying the federal government had knowingly trampled
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  Speaker 1: on the privacy rights of American citizens in a manner
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  Speaker 1: that threatened the sacred right to vote. The D.C. Federal
• 16:33
  Speaker 1: Appeals Court refused to lift the judge's block, and so
• 16:37
  Speaker 1: the Justice Department is asking the Supreme Court to enter
• 16:40
  Speaker 1: the fight over the systematic alien verification entitlements or SAVE database.
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  Speaker 1: Joining me is Leon Fresco, a partner in Holland &
• 16:49
  Speaker 1: Knight and the former head of the Office of immigration
• 16:52
  Speaker 1: litigation in the Obama administration. Leon, tell us about the
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  Speaker 1: fight over the SAVE database.
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  Speaker 4: This SAVE database is used by federal, state, and local
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  Speaker 4: agencies to verify immigration or citizenship status when people ask
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  Speaker 4: for benefits, licenses, and other programs. That's done by federal
• 17:11
  Speaker 4: statute and it's done as part of the Personal Work
• 17:15
  Speaker 4: Responsibility Act where the idea was that the Congress said
• 17:19
  Speaker 4: certain people couldn't qualify for certain benefits. Now the issue is,
• 17:23
  Speaker 4: can we take that database, which is supposed to tell
• 17:26
  Speaker 4: the states whether someone can qualify for a driver's license
• 17:30
  Speaker 4: or for Medicaid or Medicare or Social Security or something
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  Speaker 4: like that, and use it for voting? And so that's
• 17:37
  Speaker 4: where Florida had sued the Biden administration in 2024, saying
• 17:41
  Speaker 4: that the federal government wasn't providing benefits this data that
• 17:45
  Speaker 4: was needed for states to maintain accurate voter rolls. They
• 17:48
  Speaker 4: were saying, if you're putting a mandate on us that
• 17:51
  Speaker 4: we need to have accurate voter rolls, then you need
• 17:55
  Speaker 4: to give us this database. And so when Trump returned
• 17:57
  Speaker 4: to office, a collusive settlement was reached with Florida saying that, yes,
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  Speaker 4: you have access to this database. But the problem was
• 18:06
  Speaker 4: there was a separate lawsuit that had already been filed
• 18:08
  Speaker 4: before that settlement with the League of Women Voters, that
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  Speaker 4: said in the D.C. Circuit and the D.C. District Court, no, no, no,
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  Speaker 4: giving this database for voting purposes violates the Privacy Act
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  Speaker 4: that governs Social Security and other privacy information. And so
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  Speaker 4: that's the debate we're having here.
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  Speaker 1: In June, that D.C. federal judge you referenced found administration
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  Speaker 1: officials haphazardly combined and repurposed the private information of millions
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  Speaker 1: of Americans including citizenship data that they knew to be unreliable.
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  Speaker 1: So is it that it's unreliable or that it's violating
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  Speaker 1: privacy rights?
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  Speaker 4: Well, there's two different issues. So the first issue is
• 18:51
  Speaker 4: that it violates the privacy of people because this data
• 18:55
  Speaker 4: was compiled not for this purpose. So the point is
• 18:59
  Speaker 4: that whenever under the Privacy Act the government uses your
• 19:02
  Speaker 4: data for information that was not for the purpose that
• 19:06
  Speaker 4: it was originally used, basically designated for, then it violates
• 19:11
  Speaker 4: the Privacy Act. So yes, you can use it for
• 19:14
  Speaker 4: Medicaid or Medicare or driver's licenses because the government has
• 19:18
  Speaker 4: passed statutes that say that, but it never passed the
• 19:21
  Speaker 4: statute that said that this database could be used for voting.
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  Speaker 4: So that's the privacy issue. Now, in terms of the
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  Speaker 4: accuracy issue, What people say, and there is some truth
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  Speaker 4: to this, is that when you naturalize to become a U.S. citizen,
• 19:36
  Speaker 4: there's a lag there between the date of the naturalization
• 19:40
  Speaker 4: of the person and the updating of that database. To
• 19:44
  Speaker 4: the extent that there are errors in the saved database,
• 19:47
  Speaker 4: it's there during that little interval. period between when a
• 19:51
  Speaker 4: person naturalizes and when the database is uploaded or updated
• 19:58
  Speaker 4: to the extent that the fear is that there would
• 20:00
  Speaker 4: be a striking of people who could vote who are
• 20:04
  Speaker 4: now being stricken because the saved database didn't update their
• 20:07
  Speaker 4: naturalization status.
• 20:09
  Speaker 1: The Supreme Court has ordered that the voting rights and
• 20:13
  Speaker 1: privacy advocacy groups that sued have to respond by September 15th.
• 20:19
  Speaker 1: What do you think the Supreme Court's going to do here?
• 20:23
  Speaker 4: Well, there's a couple of issues that are very interesting. First,
• 20:27
  Speaker 4: there's a standing problem, which is that the government is
• 20:31
  Speaker 4: now raising the issue that if people are saying that
• 20:33
  Speaker 4: their privacy rights are being violated, that has to be
• 20:36
  Speaker 4: done by individual plaintiffs, not by organizations. such as the
• 20:40
  Speaker 4: League of Voters and the Electronic Privacy Coalition. And so
• 20:44
  Speaker 4: that'll be very interesting to see if the Supreme Court
• 20:47
  Speaker 4: actually just wants to dismiss this case on standing. But
• 20:50
  Speaker 4: let's say it doesn't dismiss this case on standing and
• 20:54
  Speaker 4: it goes through. One of the other arguments is that
• 20:58
  Speaker 4: the government has basically forfeited these arguments because they've only
• 21:02
  Speaker 4: raised them now after they've lost. And so this is
• 21:06
  Speaker 4: not the time to raise them. That would be the
• 21:08
  Speaker 4: second issue. But then the third issue that's also very
• 21:11
  Speaker 4: fascinating is that the CASA case, which bans these universal injunctions,
• 21:17
  Speaker 4: which the court didn't like, would potentially also be in play.
• 21:21
  Speaker 4: And the issue is, is a universal injunction appropriate here?
• 21:27
  Speaker 4: Because at the end of the day, maybe it's only
• 21:29
  Speaker 4: appropriate for specific organizations, etc. And so the idea was
• 21:35
  Speaker 4: only if you were a member of EPIC or of
• 21:39
  Speaker 4: the League of Women Voters or something, could you not
• 21:42
  Speaker 4: have your information used for voting purposes? So the court
• 21:47
  Speaker 4: has a lot of interesting options here, potentially, but at
• 21:50
  Speaker 4: the end of the day, what the government wants is
• 21:53
  Speaker 4: a stay on the district court order so that every
• 21:57
  Speaker 4: state who wants to use this database can use it
• 22:01
  Speaker 4: in order to disqualify people from the voting rolls.
• 22:05
  Speaker 1: Well, you also have this... quiet period before the midterms
• 22:10
  Speaker 1: and federal prohibition on states making a push to systematically
• 22:16
  Speaker 1: remove voters from rolls 90 days before an election?
• 22:20
  Speaker 4: Yeah, there's a National Voter Registration Act, which prohibits states
• 22:25
  Speaker 4: from doing systematic programs to remove voter rolls. Now, what
• 22:31
  Speaker 4: the government is saying is this wouldn't be a systematic thing.
• 22:34
  Speaker 4: This would be individualized removals. based on specific correction of
• 22:39
  Speaker 4: voter information. And that's like, you know, eye of the beholder,
• 22:43
  Speaker 4: is the dress blue or is the dress gold? Because,
• 22:47
  Speaker 4: you know, you need the systematic program access to the
• 22:50
  Speaker 4: database in order to do the individual removals. So is
• 22:55
  Speaker 4: this an individual removal case or is it a systematic
• 22:59
  Speaker 4: program case? And that's going to have to be the
• 23:02
  Speaker 4: court who's going to have to decide that.
• 23:04
  Speaker 1: And also having to do with non-citizen voting. And this,
• 23:08
  Speaker 1: according to Bloomberg sources, Justice Department leaders are pressing prosecutors
• 23:13
  Speaker 1: across the country to bring up criminal charges for non-citizen
• 23:19
  Speaker 1: voting before the midterm. So prosecuting immigrants who've unlawfully voted
• 23:25
  Speaker 1: or attempted to do so. And, you know, there was
• 23:28
  Speaker 1: a huge unlawful voter initiative where the Department of Homeland
• 23:32
  Speaker 1: Security is looking for people.
• 23:34
  Speaker 4: Well, this comes all from the belief that people voted
• 23:39
  Speaker 4: unlawfully in past elections and that perhaps people who voted
• 23:43
  Speaker 4: who shouldn't have voted led to results that shouldn't have
• 23:46
  Speaker 4: occurred we don't know if that happened or not that's
• 23:49
  Speaker 4: not been convincingly proven in any particular race that a
• 23:53
  Speaker 4: specific person won or lost because of a number of
• 23:56
  Speaker 4: people voting without citizenship but as a result of this
• 24:01
  Speaker 4: the Department of Justice is trying to figure out, it's
• 24:03
  Speaker 4: not a lot of people that they can find for
• 24:06
  Speaker 4: actually voting, but can they prosecute people who are registered
• 24:11
  Speaker 4: to vote under the guise of they've attempted to vote?
• 24:16
  Speaker 4: And that's complicated because the people who have registered to vote,
• 24:20
  Speaker 4: many of them are as a result of these motor
• 24:23
  Speaker 4: voter programs where people go and get a license and
• 24:27
  Speaker 4: and then unwittingly, unbeknownst to them, they're registered to vote.
• 24:31
  Speaker 4: And the question is, did that person actually check a
• 24:34
  Speaker 4: box during that that said that they were a U.S. citizen,
• 24:39
  Speaker 4: or did the state actually make a mistake? And even
• 24:43
  Speaker 4: if the person checked the box, would the argument be
• 24:47
  Speaker 4: that the person had no idea what this box was
• 24:50
  Speaker 4: they were checking? They were not checking this in order
• 24:52
  Speaker 4: to get registered to vote, but instead... were checking it
• 24:57
  Speaker 4: because they just didn't understand the box or anything. All
• 25:00
  Speaker 4: they thought they were doing that day was getting a
• 25:02
  Speaker 4: driver's license. They knew they were eligible for a driver's
• 25:05
  Speaker 4: license because they were here lawfully. They didn't think they
• 25:08
  Speaker 4: were being asked any question about citizenship or voting, and
• 25:12
  Speaker 4: they just randomly checked this box because they're checking boxes
• 25:16
  Speaker 4: in order to get a license. I don't know how
• 25:19
  Speaker 4: these would go in an individual jury case. We've seen
• 25:22
  Speaker 4: a lot of cases this month about juries doing things
• 25:25
  Speaker 4: because they feel it's the right thing to do or
• 25:28
  Speaker 4: not the right thing to do. But one thing I
• 25:31
  Speaker 4: do know is that even if these folks are not
• 25:34
  Speaker 4: criminally prosecuted, they could be placed in deportation proceedings under
• 25:39
  Speaker 4: the guise of making a false claim to U.S. citizenship.
• 25:43
  Speaker 4: And there, it wouldn't be a jury who might have sympathy.
• 25:45
  Speaker 4: There would be an immigration judge. And many immigration judges
• 25:49
  Speaker 4: today are being told, you have to increase your numbers
• 25:52
  Speaker 4: of deportations You have to find deportation whenever it's possible.
• 25:56
  Speaker 4: And in that forum, even if the person isn't criminally prosecuted,
• 26:00
  Speaker 4: it might make no difference if they end up getting
• 26:02
  Speaker 4: deported from the United States.
• 26:04
  Speaker 1: Yeah, and also, I mean, they're doing this before the midterms,
• 26:07
  Speaker 1: but any case is going to take longer than the midterms.
• 26:11
  Speaker 1: I don't know why the push is right now to
• 26:13
  Speaker 1: scare people into not voting if they're non-citizens.
• 26:17
  Speaker 4: There's definitely a deterrence component to this to say... to
• 26:22
  Speaker 4: the extent that the government believes that unlawful voting is
• 26:26
  Speaker 4: a problem, look, we're prosecuting this. We're going to find
• 26:29
  Speaker 4: that wherever it exists, we're going to root it out.
• 26:31
  Speaker 4: So don't even think of doing anything within 20 miles
• 26:35
  Speaker 4: of the radius of unlawful voting. And we'll see if
• 26:39
  Speaker 4: that actually ends up making any difference or is dispositive
• 26:42
  Speaker 4: of anything.
• 26:42
  Speaker 1: And I just want to mention that cases of non-citizen
• 26:46
  Speaker 1: voting are extremely low. Most recently, though, About 400 non-citizens
• 26:54
  Speaker 1: voted in New Jersey after a software glitch led to
• 26:58
  Speaker 1: their improper registration while, as you described before, applying for
• 27:03
  Speaker 1: a driver's license. State officials said those votes didn't affect
• 27:07
  Speaker 1: the outcome of any election. Stay with me, Leon. Coming
• 27:12
  Speaker 1: up next on the Bloomberg Law Show, I'll continue this
• 27:14
  Speaker 1: conversation with Leon Fresco. The Trump administration is taking a
• 27:19
  Speaker 1: more aggressive approach to enforcing H-1B visa rules and is
• 27:24
  Speaker 1: also proposing basically doubling the fees to more than $ 200, 000
• 27:30
  Speaker 1: for visa applicants. I'm June Grosso and this is Bloomberg.
• 27:36
  Speaker 1: The Trump administration has taken a more aggressive approach to
• 27:40
  Speaker 1: enforcing H-1B visa rules, and now it's proposing to double
• 27:46
  Speaker 1: the fees to more than $ 200, 000 for H-1B visa applicants
• 27:52
  Speaker 1: from abroad in specialty occupations. I've been talking to immigration
• 27:56
  Speaker 1: law attorney Leon Fresco of Holland & Knight. Leon, tell
• 28:00
  Speaker 1: us about the plan to double the fees for H-1B
• 28:04
  Speaker 1: visa applicants.
• 28:05
  Speaker 4: The history of this, just in case people aren't aware
• 28:08
  Speaker 4: of it. The history of this is, from the time
• 28:11
  Speaker 4: the Trump administration started running for this new term, there
• 28:16
  Speaker 4: was a lot of people within this field that were
• 28:18
  Speaker 4: saying that the H-1B visa for high-skilled workers was being abused.
• 28:22
  Speaker 4: It needed to be amended so that people wouldn't use
• 28:26
  Speaker 4: it to get labor at a lower cost than American workers.
• 28:30
  Speaker 4: This isn't a skilled program, it's a low-wage program, etc., etc.
• 28:34
  Speaker 4: So the first move the Trump administration tried to do is,
• 28:38
  Speaker 4: just like it has travel bans for people from many countries,
• 28:41
  Speaker 4: it tried using that travel ban statute to say, well,
• 28:44
  Speaker 4: we're going to have a travel ban, but that ban
• 28:47
  Speaker 4: is going to be on H-1B visa holders from abroad,
• 28:50
  Speaker 4: and the only way they can get around that travel
• 28:53
  Speaker 4: ban is to pay $ 100, 000. Courts have been saying that
• 28:58
  Speaker 4: that's a tax, that's not a travel ban. And so
• 29:02
  Speaker 4: the administration is not happy about this and is trying
• 29:05
  Speaker 4: to figure out another way to accomplish the same objective.
• 29:09
  Speaker 4: So here's what they're trying to do now. The statutes
• 29:13
  Speaker 4: say that the Immigration Service is a fee-funded agency. And
• 29:18
  Speaker 4: To the extent that the immigration service is a fee-funded agency,
• 29:22
  Speaker 4: they're allowed to put user fees on visa applications to
• 29:26
  Speaker 4: fund the program. Now, the problem is the regulation that
• 29:31
  Speaker 4: now they're doing for user fees adds $ 100, 000 more, meaning
• 29:37
  Speaker 4: anybody who wants an H-1B visa will have to pay $ 100, 000.
• 29:40
  Speaker 4: $ 100, 000 in order to do this, which will dramatically reduce it. Basically,
• 29:44
  Speaker 4: the program will not be used anymore. But the problem
• 29:47
  Speaker 4: is that the agency has said that the fees it's
• 29:51
  Speaker 4: already collected are sufficient to fund the agency. So what
• 29:54
  Speaker 4: they're saying is that these fees that they're additionally collecting
• 29:58
  Speaker 4: will will go to other agencies who already have congressional
• 30:03
  Speaker 4: appropriations that fund them. And so that's going to be
• 30:07
  Speaker 4: the argument that the plaintiffs are going to make there
• 30:09
  Speaker 4: is you can't do that. You can't use user fees
• 30:12
  Speaker 4: that are meant to fund a specific department that is
• 30:15
  Speaker 4: relying upon user fees. in order to fund other departments
• 30:18
  Speaker 4: that rely upon appropriations. That's called an augmentation, which is
• 30:23
  Speaker 4: illegal in appropriation laws. And the purpose of the fees
• 30:27
  Speaker 4: is to reimburse USCIS. It's not to supplement their income.
• 30:32
  Speaker 4: That's in the actual statute itself. And so... It looks
• 30:36
  Speaker 4: like it will be very difficult for this regulation to
• 30:39
  Speaker 4: survive judicial scrutiny, but we're going to have to, again,
• 30:42
  Speaker 4: wait and see. The regulation isn't out yet. It's in
• 30:44
  Speaker 4: the notice and comment period. It's certainly newsworthy globally. Every
• 30:48
  Speaker 4: global newspaper is covering this at a much higher extent
• 30:52
  Speaker 4: currently than the United States. But when this comes out,
• 30:55
  Speaker 4: it's going to create a global shock. And then the
• 30:58
  Speaker 4: question will be, will it actually survive the courts or not?
• 31:02
  Speaker 1: I mean, is this an attempt really to... abolish or
• 31:05
  Speaker 1: at least devastate the H-1B program?
• 31:10
  Speaker 4: You've seen contemporaneous tweets by administration officials after this regulation
• 31:14
  Speaker 4: was announced that undermine the stated purpose of the regulation.
• 31:20
  Speaker 4: The regulation itself says it's a cost recovery and budget supplementation,
• 31:25
  Speaker 4: and that's the only reason they're doing this. And then
• 31:28
  Speaker 4: you see tweets from administration officials saying, don't come here
• 31:32
  Speaker 4: and work. We have plenty of American workers. Things of
• 31:34
  Speaker 4: this nature. So yes, if you just use the text
• 31:39
  Speaker 4: of what administration officials are tweeting, they're saying that the
• 31:42
  Speaker 4: purpose of this is to take jobs that would have
• 31:45
  Speaker 4: ordinarily been allocated to the H-1B program and get rid
• 31:49
  Speaker 4: of them so that hopefully an American would fill that job.
• 31:52
  Speaker 1: Let me ask you this. I read that there are
• 31:53
  Speaker 1: about 730,000 visa holders in the U.S. now. Are those
• 31:59
  Speaker 1: mostly visitor visas?
• 32:02
  Speaker 4: No, those aren't people on H-1B because what happens is this.
• 32:05
  Speaker 4: It's a very weird program. There are, every year, 85,000
• 32:09
  Speaker 4: visas that are allowed to be issued. And so those
• 32:13
  Speaker 4: are 85,000 new people. And those people are allowed six-year terms.
• 32:18
  Speaker 4: So if you do 85,000 times six, you get something like,
• 32:23
  Speaker 4: you know, five, 600,000 visas. Some of these people end
• 32:26
  Speaker 4: up getting green cards, so they move off the H-1B visa.
• 32:30
  Speaker 4: But some cannot get green cards because the problem is
• 32:33
  Speaker 4: that of the 120,000 employment-based green cards that are allowed
• 32:38
  Speaker 4: each year, only 7% are permitted for any one country.
• 32:43
  Speaker 4: And the problem is that the majority of H-1B visa
• 32:46
  Speaker 4: holders are from India... But there's only 9,800 green cards
• 32:51
  Speaker 4: available per year for India. So those 750,000 people are
• 32:57
  Speaker 4: trying to squeeze into a funnel of 9,800 per year.
• 33:02
  Speaker 4: And so that's why that number never goes down is
• 33:04
  Speaker 4: because H-1Bs happen each year. A bunch of Indian applicants
• 33:09
  Speaker 4: come in each year and very few actually end up
• 33:12
  Speaker 4: going processed into the green card funnel. And so it's
• 33:16
  Speaker 4: a number of people that are in flux. So you're
• 33:18
  Speaker 4: allowed under statutes passed by Congress to remain on your
• 33:22
  Speaker 4: H-1B visa forever here while you're waiting in line, unless
• 33:28
  Speaker 4: and until an employer fires you. And if the employer
• 33:31
  Speaker 4: fires you, then at the moment you have 60 days
• 33:35
  Speaker 4: to find a new job, but the administration has a
• 33:37
  Speaker 4: separate regulation that they're trying to do now that says
• 33:40
  Speaker 4: you don't have 60 days to find a new job.
• 33:42
  Speaker 4: You have zero days. So it would make you deportable
• 33:45
  Speaker 4: immediately if you lose your job, which is intended to
• 33:49
  Speaker 4: basically create a mass deportation program of the Indian nationals
• 33:55
  Speaker 4: that are currently here on the H-1B visa.
• 33:58
  Speaker 1: The... administrations taking a more aggressive approach to enforcing the
• 34:02
  Speaker 1: H-1B rules. They suspended IT firm Cognizant's ability to file
• 34:08
  Speaker 1: new applications for the H-1B and PERM programs.
• 34:14
  Speaker 4: Yes, what happened was this. The Department of Labor has
• 34:19
  Speaker 4: certain obligations depending on the program, but the PERM one
• 34:22
  Speaker 4: is the main one, which is when a company wants
• 34:25
  Speaker 4: to apply for a green card for a foreign worker,
• 34:27
  Speaker 4: It has to prove that there's not an American worker
• 34:30
  Speaker 4: who's willing and able to do the job. And it's
• 34:34
  Speaker 4: another new novel thing that's going to be coming up soon.
• 34:38
  Speaker 4: But it seems like the Department of Labor has an
• 34:41
  Speaker 4: interest in trying to figure out the following, which is
• 34:45
  Speaker 4: that there are clear rules and regulations that a business
• 34:48
  Speaker 4: has to follow in order to try to find an
• 34:50
  Speaker 4: American worker. And they're laid out. So it says you
• 34:54
  Speaker 4: have to put two ads in the Sunday paper. You
• 34:57
  Speaker 4: have to do an internet post of your company. You
• 35:01
  Speaker 4: have to put a radio ad. It gives you a
• 35:03
  Speaker 4: menu of 10 different things. And you have to pick
• 35:06
  Speaker 4: four out of the 10. And so companies do this.
• 35:10
  Speaker 4: And then they don't find an American worker. But the
• 35:12
  Speaker 4: problem is the Department of Labor is saying now under
• 35:17
  Speaker 4: this new theory that Yeah, but if you do what
• 35:21
  Speaker 4: the regulation says, fine. But if you're not using what
• 35:25
  Speaker 4: you normally do when you're actually trying to find an
• 35:28
  Speaker 4: American worker, then you're still trying to find no American
• 35:33
  Speaker 4: worker and we view what you're doing as illegal. And
• 35:36
  Speaker 4: so Cognizant went through a whole trial about discriminating against
• 35:42
  Speaker 4: American workers and being pro-foreign workers. And that trial, the
• 35:47
  Speaker 4: guilt phase was huge. decided the penalty phase is still
• 35:51
  Speaker 4: operating through. So they were the easiest target for this.
• 35:55
  Speaker 4: But it's going to be very interesting if this starts
• 35:58
  Speaker 4: to spread to other companies, because all of the biggest
• 36:01
  Speaker 4: companies in America do green card applications for their workers,
• 36:06
  Speaker 4: and they use the regulations that the Department of Labor said.
• 36:11
  Speaker 4: They said, here's what you have to use in order
• 36:14
  Speaker 4: to prove there's no American worker problem. And so it
• 36:17
  Speaker 4: will be very interesting if they now are going to
• 36:19
  Speaker 4: be held to a new standard which says, no, you
• 36:21
  Speaker 4: have to do these plus whatever else you would normally
• 36:24
  Speaker 4: do in order to try to find the American worker.
• 36:28
  Speaker 4: And so that's what we're going to see. And the
• 36:30
  Speaker 4: most alarming part is that the Secretary of Labor and
• 36:33
  Speaker 4: President the inspector general both said, we're going to see
• 36:37
  Speaker 4: handcuffs soon. So to the extent that people are going
• 36:40
  Speaker 4: to be put in handcuffs, we're going to have to
• 36:42
  Speaker 4: see if there's actually actual fraud or if there's just
• 36:45
  Speaker 4: this interpretation problem because handcuffs would certainly be a much
• 36:49
  Speaker 4: more dramatic issue for a legal interpretation issue than if
• 36:53
  Speaker 4: there was actual fraud. So we're going to have to
• 36:55
  Speaker 4: see at some point, they're going to have to release
• 36:57
  Speaker 4: their cards and say, was there actual fraud at these
• 37:00
  Speaker 4: companies or was there just this legal interpretation problem?
• 37:04
  Speaker 1: So they're talking about putting people at the company, executives,
• 37:08
  Speaker 1: in handcuffs.
• 37:09
  Speaker 4: Correct.
• 37:10
  Speaker 3: It's a long shot, I think.
• 37:11
  Speaker 1: So a lot of companies have settled with the government, right,
• 37:15
  Speaker 1: over this?
• 37:16
  Speaker 4: Right. When companies are usually accused of favoring foreign workers
• 37:20
  Speaker 4: over U.S. workers, usually the Department of Justice, it's called
• 37:24
  Speaker 4: the Employee and Immigrant Rights Section, they make a complaint
• 37:28
  Speaker 4: and people try to fight it and say, no, I
• 37:30
  Speaker 4: wasn't doing that. but to the extent that the evidence
• 37:33
  Speaker 4: doesn't show that that's correct, then usually the companies will
• 37:37
  Speaker 4: settle for a fine or back pay or something like that.
• 37:41
  Speaker 4: So to the extent that it becomes a criminal matter,
• 37:43
  Speaker 4: that really is an escalation that is not the usual
• 37:47
  Speaker 4: in these cases.
• 37:49
  Speaker 1: Leon, let's turn to temporary protected status for a moment
• 37:52
  Speaker 1: because TPS for Salvadorans was set to expire today, but
• 37:58
  Speaker 1: the Department of Homeland Security hasn't announced yet whether it
• 38:02
  Speaker 1: will end or extend TPS for some 170,000 Salvadorans.
• 38:09
  Speaker 4: This is a fascinating case because unlike all of the
• 38:13
  Speaker 4: other countries that we've talked about in the past where
• 38:15
  Speaker 4: there's temporary protected status, where the administration issued these documents
• 38:20
  Speaker 4: saying there's no more temporary protected status because the conditions
• 38:24
  Speaker 4: are fine in Haiti and or in Syria or Venezuela
• 38:29
  Speaker 4: or wherever else. There was no such document in the
• 38:32
  Speaker 4: El Salvador case. The administration is completely silent about El Salvador.
• 38:37
  Speaker 4: And there may be some interesting reasons for that. For instance,
• 38:40
  Speaker 4: here in D.C., this is the largest population of Salvadoran nationals,
• 38:45
  Speaker 4: and a lot of them are nannies and workers that
• 38:49
  Speaker 4: work for people in the government. And so... That's one
• 38:52
  Speaker 4: issue that's interesting. The other one is we have a
• 38:55
  Speaker 4: very strong relationship with the president of El Salvador, who
• 38:58
  Speaker 4: may not be so comfortable with having to bring back
• 39:01
  Speaker 4: 300,000 people at one foul swoop. And so what this
• 39:06
  Speaker 4: administration did is they didn't actually cancel the temporary protected status.
• 39:12
  Speaker 4: They just didn't reauthorize it. And so what the statute
• 39:16
  Speaker 4: says is when that happens, six more months, it's like
• 39:19
  Speaker 4: Groundhog Day. The groundhog doesn't show six more months of
• 39:24
  Speaker 4: winter or whatever. It's the same thing for temporary protected status.
• 39:28
  Speaker 4: If you don't do anything, it ought extends for six months.
• 39:31
  Speaker 4: And that has happened in the past. But the administration
• 39:35
  Speaker 4: weirdly is saying that it's expired. So it's putting on
• 39:39
  Speaker 4: the website that it's expired as of today. People can't
• 39:42
  Speaker 4: legally work today. But it knows that the law is
• 39:47
  Speaker 4: that when you don't actually do the notice you're supposed
• 39:49
  Speaker 4: to do, that extends it automatically by six months. There
• 39:54
  Speaker 4: are going to be lawsuits about this that say, hey,
• 39:56
  Speaker 4: give people work permits for six more months because they
• 39:59
  Speaker 4: didn't do this. Is the administration going to say, look,
• 40:02
  Speaker 4: these are the kinds of things that are foreclosed by
• 40:06
  Speaker 4: the Mullen versus Doe case, which says you can't challenge
• 40:09
  Speaker 4: an extermination of TPS because Or will the court say, yeah,
• 40:13
  Speaker 4: but you didn't do that. Nobody's challenging an extermination of TPS.
• 40:17
  Speaker 4: They're challenging that the statute says there are six months
• 40:21
  Speaker 4: and you didn't do anything about this. So if you
• 40:24
  Speaker 4: wanted to terminate TPS, you could have, but you didn't
• 40:27
  Speaker 4: do it. So you don't get to say it's over
• 40:30
  Speaker 4: by doing nothing. And so that's going to be a
• 40:32
  Speaker 4: very interesting challenge. And I think perhaps the way this
• 40:36
  Speaker 4: is rolled out, it seems like it's rolled out in
• 40:38
  Speaker 4: a manner where the administration wouldn't mind losing. And so
• 40:42
  Speaker 4: this is why it's rolled out. So they can keep TPS,
• 40:46
  Speaker 4: the people can keep their nannies and their workers and
• 40:49
  Speaker 4: everything else, but it wasn't done in a way where
• 40:52
  Speaker 4: the government acquiesced to it. This is the only explanation
• 40:56
  Speaker 4: for this, because otherwise there would have been a termination
• 40:59
  Speaker 4: letter that was issued that explained why El Salvador was
• 41:03
  Speaker 4: ending TPS. So we'll have to wait and see. But
• 41:06
  Speaker 4: it's a fascinating dynamic for all of those different reasons.
• 41:09
  Speaker 1: I mean, El Salvador, conditions there have changed for the
• 41:13
  Speaker 1: better in the last.
• 41:14
  Speaker 4: Yes, correct. They have very little crime there. Everything is
• 41:17
  Speaker 4: stable there. And so it does seem like the kind
• 41:21
  Speaker 4: of country where you would terminate TPS based on... If
• 41:24
  Speaker 4: you're terminating TPS for Haiti, then no one would ever
• 41:28
  Speaker 4: say that the conditions in El Salvador are worse than
• 41:31
  Speaker 4: the conditions in Haiti... But this is, I think, what's
• 41:35
  Speaker 4: happening here.
• 41:36
  Speaker 1: Politics involved in immigration, of course. Thanks so much, Leon,
• 41:40
  Speaker 1: as always. That's Leon Fresco of Holland & Knight. And
• 41:42
  Speaker 1: that's it for this edition of the Bloomberg Law Show. Remember,
• 41:45
  Speaker 1: you can always get the latest legal news on our
• 41:48
  Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
• 41:52
  Speaker 1: and at www.bloomberg.com slash podcast slash law. And remember to
• 41:58
  Speaker 1: tune into the Bloomberg Law Show every weeknight at 10 p.m.
• 42:01
  Speaker 1: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.