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Is the Iran War Legal & the $100,000 H1-B Visas · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:09
Speaker 1: We've won. Let me tell it.
0:10
Speaker 2: We've won.
0:12
Speaker 1: You know, you'd never like to say too early. You won.
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Speaker 1: We won the best in the first hour, it was over.
0:17
Speaker 2: They don't know what.
0:18
Speaker 1: The hell hit them, right, they.
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Speaker 3: Don't know.
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Speaker 4: They got hit by the American military.
0:27
Speaker 1: They don't know.
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Speaker 4: They say, what the hell is happening? They didn't expect
0:31
Speaker 4: anything like this.
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Speaker 2: They are absolutely being destroyed. Iran is being absolutely decimated.
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Speaker 3: Just yesterday, President Trump again declared victory over Iran, despite
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Speaker 3: the war entering its thirteenth day with no end in sight,
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Speaker 3: and as American and Israeli strikes pound the Islamic Republic
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Speaker 3: and Iran attacks Persian Gulf shipping and energy infrastructs RUTURE,
1:00
Speaker 3: oil prices are soaring. The war costs the US eleven
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Speaker 3: point three billion dollars in the first week alone, and
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Speaker 3: Democratic lawmakers like Senator Tammy Baldwin have expressed concerns about
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Speaker 3: its legality after getting classified briefings.
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Speaker 1: We were not under attack.
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Speaker 2: We were not even under imminent threat of attack, which.
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Speaker 1: Means this is a war of choice, and it means.
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Speaker 2: That the president has violated both the Constitution and law
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Speaker 2: to go to war.
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Speaker 3: So is the Trump administration waging an illegal war against
1:41
Speaker 3: Duran under US law or international law? Joining me to
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Speaker 3: answer that question is an expert in international law, cal Rostiella,
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Speaker 3: a professor at UCLA Law School and director of the
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Speaker 3: UCLA Ronald W. Burkele Center for International Relations. Under the Constitution,
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Speaker 3: the president commands the armed forces and directs foreign relations,
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Speaker 3: but only Congress has the power to declare war. So
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Speaker 3: is the Iran war illegal under US law?
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Speaker 1: First? Thanks for having me on.
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Speaker 4: I would say that yes, it's correct that Congress is
2:20
Speaker 4: empowered to declare war under the Constitution. But Congress has
2:23
Speaker 4: only done so five times in American history, and we've
2:26
Speaker 4: used force over two hundred times, so it's pretty well
2:29
Speaker 4: established that there's lots of uses of force that the
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Speaker 4: president can engage in without a declaration of war. And
2:36
Speaker 4: in fact, in the post un Charter world, a declaration
2:40
Speaker 4: of war doesn't even really make sense. The system is
2:42
Speaker 4: predicated on the idea of self defense as the main
2:46
Speaker 4: rationale for the use of force. But in any event,
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Speaker 4: the main thing is what's the role of Congress in this?
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Speaker 4: And I think in many other instances, we see Congress
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Speaker 4: doing something short of a declaration, like an authorization of
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Speaker 4: some kind. You go back to the Gulf of Tonkin
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Speaker 4: resolution during the Vietnam War, or the authorization to use
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Speaker 4: a military force before the Iraq War two thousand and
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Speaker 4: one in Afghanistan. And so it is often the case
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Speaker 4: that Congress plays some supportive role short of a declaration.
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Speaker 4: We obviously don't have that here.
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Speaker 3: And so then would you say that this is not
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Speaker 3: legal under US law?
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Speaker 1: I wouldn't say it's not legal.
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Speaker 4: It's difficult to answer that because the parameters of Congress's
3:29
Speaker 4: powers and the president's.
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Speaker 1: Powers have sort of evolved over time.
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Speaker 4: I mean, even the Framing generation understood the idea that
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Speaker 4: the president had the authority to.
3:37
Speaker 1: Repel sudden attacks.
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Speaker 4: What exactly that means and what role Congress should play
3:43
Speaker 4: has been sort of a bit of a struggle, a
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Speaker 4: bit of a dance between the two branches. All of
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Speaker 4: that said, I think, you know, it is certainly a
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Speaker 4: kind of customary practice generally to seek some degree of
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Speaker 4: Congressional approval. But it's also the case that the executive
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Speaker 4: branch has always resisted the idea that they have to
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Speaker 4: do it and so you mentioned the Warpowers Act, that
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Speaker 4: was a nineteen seventies era maybe a high point of
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Speaker 4: Congress's attempt to claw back some of its control and
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Speaker 4: the wake of President Nixon and the kind of idea
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Speaker 4: that the presidency was a bit wayward.
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Speaker 1: But the executive branch has always been.
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Speaker 4: Resistant to it and always kind of argued either that
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Speaker 4: it doesn't apply, or it isn't fully legal, or they're
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Speaker 4: providing information but they don't have to. They've given different
4:24
Speaker 4: articulations over time, but they don't like it, and they
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Speaker 4: don't feel that they're really forced to do a lot
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Speaker 4: of things that congressponds to do.
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Speaker 1: So it's really hard.
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Speaker 4: To say whether this is fully a violation without Congress
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Speaker 4: actually asserting itself in some way. It's more of an
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Speaker 4: invitation to struggle in a sense between these two branches
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Speaker 4: rather than clear, brightline rules.
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Speaker 3: But Congress could vote to withdraw the military from the
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Speaker 3: conflict if the votes were there.
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Speaker 4: I mean, ultimately, Congress's power prefaces by saying I'm not
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Speaker 4: a constitutional lawyer, I'm an international lawyer. But Congress's powers
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Speaker 4: are ultimately more We're in the realm of yes budget
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Speaker 4: and control over spending and appropriations and things like that.
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Speaker 4: The president is the commander in chief, so Congress can't,
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Speaker 4: as I understand it, command that the troops return. They
5:11
Speaker 4: can certainly give their opinion about things that relate to
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Speaker 4: the use of force or the military. Just as an example,
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Speaker 4: sort of unrelated to this particular instance, but it has
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Speaker 4: some relevance. A year or two ago, Congress passed a
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Speaker 4: law about withdrawing from NATO and essentially saying, you know,
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Speaker 4: we don't support this without our approval. So those are
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Speaker 4: statements that Congress can use to indicate its preferences, which
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Speaker 4: might be relevant to a court decision and some future date.
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Speaker 4: But it's really the president's job as commander in chief
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Speaker 4: to command the troops. But Congress does have the power
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Speaker 4: of the purse and can use that. It's just not
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Speaker 4: very effective short term. And of course, whatever the congressional
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Speaker 4: powers might be, this Congress, and really every Congress of
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Speaker 4: the last I don't know, fifty plus years, has shown
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Speaker 4: very little interest in actually exerting itself as a general
5:59
Speaker 4: math visa via the president.
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Speaker 3: What about international law does the Iran war violate?
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Speaker 1: That also a difficult question.
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Speaker 4: I would say most international lawyers outside the US government
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Speaker 4: and maybe outside state departments and foreign ministries generally would
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Speaker 4: say yes. The framework that's laid out in the UN
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Speaker 4: Charter is essentially that you can use force if an
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Speaker 4: armed attack occurs, and then there's a kind of secondary
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Speaker 4: question about what if it's about to occur, about the
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Speaker 4: imminence to mention of that, or you can use force
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Speaker 4: if the Security Council authorizes it, And those are the
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Speaker 4: only two instances, and neither of those are true here
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Speaker 4: in the view of I think the majority of international
6:40
Speaker 4: lawyers around the world, again outside governments, outside the US government,
6:44
Speaker 4: the Israeli government, maybe some other government. So one of
6:46
Speaker 4: the interesting features about this particular conflict is a bit
6:50
Speaker 4: like the Maduro raid earlier this year, there's not an
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Speaker 4: enormous amount of opprobrium headed in the direction of the US.
6:59
Speaker 4: So there is some, of course, but there's more approval
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Speaker 4: or acquiescence than you might have expected, and I think
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Speaker 4: that partly reflects the fact that in both of those cases,
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Speaker 4: Venezuela in Iran, these are states that are not widely liked,
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Speaker 4: that are generally viewed as bad actors, and so politically
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Speaker 4: it's more difficult, but it's also the case that there's
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Speaker 4: an argument that the US, certainly I think is making
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Speaker 4: and will make. The administration is not great at making
7:22
Speaker 4: its case. In fact, they really have not made much
7:25
Speaker 4: of an effort at all to do that. But to
7:27
Speaker 4: degree they have, it's sort of sounding in some kind
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Speaker 4: of self defense rationale, and you can make the argument.
7:32
Speaker 4: I don't know if it's soally persuasive, but you can
7:34
Speaker 4: make the argument that we are in a long term
7:36
Speaker 4: conflict with eramic dates back decades, and that in a
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Speaker 4: sense is the continuation of an ongoing conflict rather than
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Speaker 4: a new conflict. If you accept that idea, then it
7:48
Speaker 4: can be seen as lawful. I think it's a stretch,
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Speaker 4: but there isn't really clear rules about that about how
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Speaker 4: much time passes before a conflict is over.
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Speaker 3: Aren't there strict legal rep requirements for whether it's considered
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Speaker 3: self defense under Article fifty one of the UN Charter?
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Speaker 3: You know whether you actually need an armed attack, not
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Speaker 3: just a potential threat.
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Speaker 4: Yes, I mean, the black Letter law is pretty clear
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Speaker 4: that if an armed attack occurs, you have a customer
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Speaker 4: international law and a treaty based un Charter based right.
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Speaker 1: Of self defense. And that could be collective or individual.
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Speaker 4: In other words, you know, you could protect an ally
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Speaker 4: and vice versa, which obviously has relevance for Israel in
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Speaker 4: the United States, but if an armed attack occurs, that
8:33
Speaker 4: language in the UN Charter makes it sound as if
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Speaker 4: you have to wait for the attack. But it's long
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Speaker 4: that understood, dating back to the nineteenth century, that that's
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Speaker 4: not the case, and that an imminent attack is sufficient
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Speaker 4: grounds for engaging in self defense. Now, the question of
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Speaker 4: how imminent has been a difficult one. Obviously, you know,
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Speaker 4: just conceptually, it's not really clear. What does that mean
8:55
Speaker 4: is does the missiles have to be in the air
8:57
Speaker 4: or something like that. Over time, especially in the last
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Speaker 4: let's say a couple of decades, this was relevant for
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Speaker 4: the Iraq War. The position the US has taken has
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Speaker 4: been to extend the time period of imminence such that
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Speaker 4: it's more in the role of preemptive war or even
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Speaker 4: preventive war, and that isn't widely accepted, but I think
9:18
Speaker 4: it's fair to say that a lot of states do
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Speaker 4: sort of agree that you can't in a time of
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Speaker 4: let's say, high technology with warfare, weapons of mass destruction, etc.
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Speaker 4: You can't really wait till the attack is ongoing or
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Speaker 4: even about to be launched, you may need to act
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Speaker 4: a bit beforehand. But you know, that's a very slippery slope,
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Speaker 4: and many international lawyers find that concerning. And of course
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Speaker 4: most countries in the world are going to find a
9:43
Speaker 4: rule like that concerning because they are much more likely.
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Speaker 1: To be attacked than to be attacking. So they worry
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Speaker 1: about that.
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Speaker 3: You mentioned President Trump or the administration not really putting
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Speaker 3: its case forward. There's been all this mixed messaging with
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Speaker 3: the President saying, you know, this is war wonted and
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Speaker 3: then talking about an excursion. This is an excursion.
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Speaker 1: That's not a legal phrase. In case you're wondering.
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Speaker 3: No, I was sort of stunned by an excursion. What
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Speaker 3: are we talking about here? I mean, do you see
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Speaker 3: a message at all here as to why we're in
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Speaker 3: the situation we're in, why we struck you're in.
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Speaker 4: Well, there's sort of two things embedded in that question.
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Speaker 4: I think what is the nature of this conflict?
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Speaker 1: I think they do not know.
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Speaker 4: In this administration, they're obviously chaotic in their decision making processes.
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Speaker 4: It's not really clear at all what was driving other
10:34
Speaker 4: than some combination of opportunistic advantage that they saw, you know,
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Speaker 4: possibly pressure from allies, other things like that. We don't
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Speaker 4: really know. Is it war, is it something short of war?
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Speaker 4: Obviously they're uncomfortable with using the term war outside the
10:50
Speaker 4: of office, but the President continues to use it excursion.
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Speaker 4: I think he misunderstood incursion or who knows what he's doing.
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Speaker 4: That one doesn't really make sense in terms of why
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Speaker 4: they are doing it. You know that too. They haven't
11:02
Speaker 4: really offered a consistent rationality. I think anyone who's followed
11:06
Speaker 4: the news knows that the rationales have changed by the day,
11:12
Speaker 4: sometimes within a day, and also by who's speaking. We've
11:15
Speaker 4: heard different things from different members of the administration. So
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Speaker 4: I think we actually do not really know, and there
11:20
Speaker 4: may not be an answer about what the real reasons
11:23
Speaker 4: are because it might be multiple reasons that are somewhat conflicting.
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Speaker 3: So there are reports that Iran maybe planning to retaliate
11:31
Speaker 3: against the US with drone strikes in California. How would
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Speaker 3: international law view that?
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Speaker 4: Yeah, we got an email at UCLA about that possibility,
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Speaker 4: So that's circulated widely. I have to say it seems,
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Speaker 4: you know, maybe a bit far fetched, but Iran has
11:47
Speaker 4: shown that it has power to take actions either through
11:50
Speaker 4: itself or its proxies in other places, so it's not
11:53
Speaker 4: to be dismissed completely. You know, it would all depend
11:56
Speaker 4: under the laws of war. If we are in fact
11:58
Speaker 4: in a conflict, then Iran can attack us as we
12:01
Speaker 4: are attacking them, but you can't attack civilians. You can't
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Speaker 4: deliberately attack target civilians, and so those same rules would
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Speaker 4: apply on either side. Deliberate targeting of civilians is not permitted.
12:16
Speaker 4: You know, there's a bunch of rules about proportionality and
12:18
Speaker 4: distinction and so forth. Complicated set of rules that sometimes
12:21
Speaker 4: can seem academic when you actually apply them to real cases.
12:24
Speaker 4: But either way, drone strikes against a school or a
12:27
Speaker 4: hospital or something like that randomly in California, no, that
12:31
Speaker 4: would be a violation. But against a military target, if
12:34
Speaker 4: we are in fact in an armed conflict, then that's
12:36
Speaker 4: part of war, as you do attack military installations. And
12:40
Speaker 4: for example, the ship that was targeted by the United
12:42
Speaker 4: States thousands of miles from Iran and sung would be
12:46
Speaker 4: an example of an attack like that wasn't a drone,
12:48
Speaker 4: but it's the same idea.
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Speaker 3: So then how would you characterize the strike on the
12:53
Speaker 3: girls elementary school in southern Iran that killed one hundred
12:57
Speaker 3: and sixty five children and teachers.
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Speaker 4: So that appears to have been the United States. The
13:02
Speaker 4: evidence seems pretty strong on that. If it's true that
13:06
Speaker 4: it was deliberately targeted, obviously a violation.
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Speaker 1: Sometimes schools have been attacked.
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Speaker 4: This is an ongoing issue in for example, Gaza and
13:15
Speaker 4: other conflicts where there are fighters embedded in a school
13:19
Speaker 4: or a hospital or something like that, which can make
13:21
Speaker 4: it a legitimate target, but it's subject still to some
13:24
Speaker 4: special protections. That does not appear to be the case
13:26
Speaker 4: here as I understand it. Again, it's a fast moving issue.
13:29
Speaker 4: There's a lot we don't know. But if there was
13:31
Speaker 4: no military value to that target and it was simply hit,
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Speaker 4: that would be impermissible.
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Speaker 3: Absolutely broading this out. There's been a string of unilateral
13:41
Speaker 3: military actions taken by the Trump administration since December of
13:47
Speaker 3: twenty twenty five. The US bomb Nigeria, shot and killed
13:52
Speaker 3: drug smugglers in the Caribbean, and the Pacific attacked Venezuela
13:56
Speaker 3: and kidnapped its president, and now attacked arend Would those
14:01
Speaker 3: strikes be considered a violation of international law?
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Speaker 4: Yeah, I mean it's an amazing string of events, disturbing string.
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Speaker 4: Some of them are really blatant violations of international law. So,
14:17
Speaker 4: for example, the boat strikes would maybe be the most
14:19
Speaker 4: blatant in the sense that really they haven't even offered
14:23
Speaker 4: a very coherent argument about it. But taking out those
14:27
Speaker 4: are civilians by almost all accounts, Again, it's not like
14:30
Speaker 4: we're not actually in a conflict with cartels. So that's
14:34
Speaker 4: maybe the most extreme kind of clear case.
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Speaker 1: And then maybe.
14:37
Speaker 4: Iran might be at the other end if you buy
14:39
Speaker 4: the argument that we're in some kind of long standing
14:41
Speaker 4: conflict that's continuing on. But when you put them all together,
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Speaker 4: stepping out of the law for a second, obviously, the
14:46
Speaker 4: political pattern is really striking and disturbing for a number
14:50
Speaker 4: of reasons. One because the United States is increasingly using
14:55
Speaker 4: force abroad in ways that are I think upsetting to
14:59
Speaker 4: many states. It's violating many rules of international law and
15:02
Speaker 4: violating just many norms of behavior.
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Speaker 1: Whether they're legal or not.
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Speaker 4: A good example would be threatening Greenland, even if that
15:09
Speaker 4: was not a serious threat, sort of an offhand threat
15:11
Speaker 4: or something like that. First of all, you're not allowed
15:13
Speaker 4: to threaten to use force under the UN Charter. That's
15:16
Speaker 4: also a violation. But regardless of whether the threat was
15:19
Speaker 4: really a serious one or not, just the very idea
15:22
Speaker 4: that a NATO ally would be subjected to some kind
15:25
Speaker 4: of threat is really shocking and was shocking to many of.
15:29
Speaker 1: Our closest allies.
15:30
Speaker 4: So when you put all of these things together, it
15:33
Speaker 4: does seem sort of incredible. The amount of intervention that's
15:36
Speaker 4: taking place, the amount of military force. Why is it happening?
15:40
Speaker 4: I cannot answer that question. I think no one really knows.
15:43
Speaker 4: There are so many different theories of various conspiratorial levels,
15:47
Speaker 4: about whether there's a pattern here. It does seem like
15:49
Speaker 4: the Trump administration often acts without any of the elaborate
15:54
Speaker 4: process that would go on normally in an administration, and
15:57
Speaker 4: maybe even occurred in the first Trump administration with regard
16:00
Speaker 4: to the use of fourth Meeting, lots of process through
16:03
Speaker 4: the National Security Council, through the State Department, through DoD,
16:06
Speaker 4: et cetera. Thinking these things through, elaborating a strategy, examining
16:10
Speaker 4: risks that all seems to be short circuited in a
16:13
Speaker 4: lot of these cases. And so it's not clear that
16:16
Speaker 4: there is a strategy. In fact, I sort of doubt it.
16:19
Speaker 3: It's hard to see a strategy in all this. Cal,
16:21
Speaker 3: thanks so much for joining me on the show. That's
16:24
Speaker 3: Professor Cal Rostiella of UCLA Law School. The Trump administration
16:30
Speaker 3: is making an emergency application to the Supreme Court to
16:33
Speaker 3: allow it to end legal protections from deportation for three
16:38
Speaker 3: hundred and fifty thousand Haitians. It mirrors a similar emergency
16:42
Speaker 3: request made two weeks ago to end protections for Syrians.
16:47
Speaker 3: The administration is also asking that Justice is to take
16:51
Speaker 3: the unusual step of granting full review in the cases
16:55
Speaker 3: with arguments and potentially a far reaching ruling in the
16:59
Speaker 3: nine month term that starts in October. My guest is
17:04
Speaker 3: immigration law expert Leon Fresco, a partner at Holland and Knight. Leon.
17:08
Speaker 3: The Trump administration has been moving aggressively to terminate temporary
17:13
Speaker 3: protected status since taking power last year, and has done
17:17
Speaker 3: so for about a dozen countries. Give us the background here.
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Speaker 2: What happens is there's a status called temporary protected status
17:25
Speaker 2: that the Congress created out of statute, and they said
17:28
Speaker 2: that the president has authority to declare eighteen month periods
17:33
Speaker 2: of time where it might be too dangerous to deport
17:36
Speaker 2: people to a particular country because of either a pandemic
17:40
Speaker 2: or a war or a natural disaster or anything of
17:43
Speaker 2: that element. And so over the course of the Biden administration,
17:48
Speaker 2: many many countries ended up with temporary protected status, and
17:52
Speaker 2: so the Trump administration said, when these statuses start to
17:56
Speaker 2: get close to expiration, we're going to let them all like,
18:00
Speaker 2: we're not going to renew any of these statuses. And
18:03
Speaker 2: so you've seen that over the course of these last
18:06
Speaker 2: eighteen months, whether it's been Venezuela or whether it's been Haiti,
18:11
Speaker 2: or whether it's been Syria or many many other countries,
18:14
Speaker 2: every country has had their temporary protected status not renewed.
18:21
Speaker 2: And so it started with Venezuela, and there's litigation that's
18:25
Speaker 2: going on with Venezuela. But the Supreme Court in that
18:28
Speaker 2: litigation stayed a determination that would have required the temporary
18:33
Speaker 2: protected status to remain while the injunction was in play.
18:37
Speaker 2: So there was a lower court injunction, and then the
18:39
Speaker 2: Supreme Court stated, so now with Haiti, there was a
18:43
Speaker 2: similar claim. So the Trump administration tries to stop temporary
18:48
Speaker 2: protected status from being renewed for Haitians, and then the
18:52
Speaker 2: Haitian community challenges in the DC District Court that determination
18:57
Speaker 2: and said it's not based on any conditions in Haiti.
19:01
Speaker 2: It's based instead on a discriminatory animis that the Trump
19:04
Speaker 2: administration has toward Haiti. And they provided a bunch of
19:08
Speaker 2: comments that had been made by both President Trump and
19:11
Speaker 2: Christy Nome about Haiti. And so the court issued an
19:14
Speaker 2: injunction saying you can't terminate the status of the Haitians
19:19
Speaker 2: under Temporary Protected Status. That gets appealed to the DC Circuit.
19:24
Speaker 2: The DC Circuit two to one preserves that injunction, saying
19:29
Speaker 2: that the Haitians can't have their TPS status, their Temporary
19:32
Speaker 2: Protected status taken away. And so now the Solicitor General's
19:36
Speaker 2: Office of the Department of Justice is trying to get
19:39
Speaker 2: the Supreme Court to basically do exactly what it did
19:42
Speaker 2: in the Venezuelan cases and say, absolutely not, you have
19:46
Speaker 2: to put a stay on this and allow us to
19:50
Speaker 2: take away the Temporary Protected status for the.
19:53
Speaker 3: Haitian And they're also asking the Court to take this
19:57
Speaker 3: unusual step of not just dealing with it on the
20:01
Speaker 3: emergency docket, but granting full review in the case. Do
20:05
Speaker 3: they have a good argument for that because this keeps
20:07
Speaker 3: coming up.
20:08
Speaker 2: Well, I think that's correct. I think at this point,
20:10
Speaker 2: given that you have the Venezuelan cases floating around in
20:13
Speaker 2: the Ninth Circuit, you have the Haitian case here in
20:16
Speaker 2: the DC Circuit, you have several decisions that have been
20:21
Speaker 2: made by the Supreme Court already granting stays, saying that
20:25
Speaker 2: these cases shouldn't be subject to injunctions at the moment,
20:29
Speaker 2: and then you have lower courts sort of saying, here's
20:32
Speaker 2: a loophole reason why those Supreme Court decisions don't actually
20:37
Speaker 2: apply to this particular case. What the Justice Department is
20:42
Speaker 2: trying to do is to get sort of a global
20:45
Speaker 2: three hundred and sixty degree ruling that can be applied
20:48
Speaker 2: to all of these various TPS revocations so that they
20:52
Speaker 2: have an understanding of what the answer is, whether the
20:55
Speaker 2: answer is they can or can't do it, whatever the
20:57
Speaker 2: answer may be, they just want an ad So I
21:00
Speaker 2: do think the Supreme Court is going to be sympathetic
21:03
Speaker 2: to giving an answer as to what is actually permissible
21:06
Speaker 2: or not permissible in the temporary protective status context.
21:10
Speaker 3: As we've discussed before, in the name itself, it's temporary
21:15
Speaker 3: protected status, I mean, or the Haitian, Syrians and Venezuelans
21:20
Speaker 3: before them trying to get this TPS status changed to
21:25
Speaker 3: a permanent status.
21:26
Speaker 2: The best way to describe it is as follows. The
21:30
Speaker 2: people with this status definitely don't want to lose this
21:33
Speaker 2: status because this is a status that allows them to
21:35
Speaker 2: be here legally and allows them to work, and they
21:39
Speaker 2: probably would make any argument that they could make in
21:42
Speaker 2: order to keep this status. But here they're trying to
21:46
Speaker 2: advance an argument that does have some interesting relevance to
21:51
Speaker 2: it in terms of the court having to decide whether
21:53
Speaker 2: this kind of argument is reviewable or not, and that
21:56
Speaker 2: is that the administration is an actually doing a detailed
22:01
Speaker 2: look at the conditions that led to temporary protected status
22:07
Speaker 2: in the first place and deciding that those conditions had
22:10
Speaker 2: changed sufficiently in order to remove the temporary protected status. Instead,
22:17
Speaker 2: they've already decided they're just getting rid of all of
22:19
Speaker 2: these statuses, And in fact, the plaintiffs don't just say that,
22:23
Speaker 2: So they don't just say that there's an insufficient analysis
22:27
Speaker 2: of the country conditions on the ground, but they're also
22:29
Speaker 2: saying that there's an actual discriminatory animus toward whichever country
22:35
Speaker 2: they're suing about. So they'll give from the Venezuelan context
22:39
Speaker 2: comments that the administration had made about Venezuela or in
22:43
Speaker 2: the Haitian context, the comments that people the administration had
22:47
Speaker 2: made about Haiti. And so they're trying to say that
22:51
Speaker 2: because of those two issues, the lack of analysis as
22:53
Speaker 2: the country conditions and the discriminatory animists, that the courts
22:58
Speaker 2: have a role in analyzing whether in that scenario it's
23:02
Speaker 2: sufficient to revoke temporary protective status. And the government says
23:07
Speaker 2: absolutely not. This is temporary protective status. Congress gives the
23:10
Speaker 2: discretion to the president to grant it or not to
23:13
Speaker 2: grant it. And you can't have the courts forcing the
23:16
Speaker 2: president to renew temporary protective status. That's way outside the
23:21
Speaker 2: bounds of anything that courts are allowed to do. When
23:25
Speaker 2: Congress says, this is up to the president to determine.
23:28
Speaker 2: And so that's a very strong argument as well, and
23:32
Speaker 2: we're going to have to see where the courts want
23:34
Speaker 2: to go.
23:35
Speaker 3: The first appellate test of the lawfulness of President Trump's
23:39
Speaker 3: toughest restrictions so far on high skilled immigration took place
23:44
Speaker 3: at the DC Court of Appeals. The Chamber of Commerce
23:47
Speaker 3: and other groups are challenging the one hundred thousand dollars
23:51
Speaker 3: fee Trump put on H one B worker petitions. Tell
23:55
Speaker 3: us a little bit about this one hundred thousand dollars fee.
23:58
Speaker 2: So let's start with just the H one B program
24:01
Speaker 2: in general. The H one B program in general is
24:03
Speaker 2: a statutory program that the Congress created where there's eighty
24:07
Speaker 2: five thousand visas permitted per year. Where if a company
24:11
Speaker 2: has a job opening in an occupation that requires a degree,
24:16
Speaker 2: whether it be a bachelor's or a master's or a PhD,
24:20
Speaker 2: then that employer can petition for an H one B
24:23
Speaker 2: visa for someone that has that exact degree that's required
24:27
Speaker 2: by that exact job title. So the demand is often
24:31
Speaker 2: much higher than the eighty five thousand. There are congressionally
24:36
Speaker 2: created fees that are there for the administration of the program,
24:40
Speaker 2: meaning to fund the adjudicators that adjudicate the petitions and
24:45
Speaker 2: the fraud adjudicators that are there to make sure that
24:49
Speaker 2: the companies aren't using these visas improperly but are actually
24:52
Speaker 2: paying their workers and are actually employing the workers in
24:57
Speaker 2: the locations they said they were going to be employing
24:59
Speaker 2: their workers. And so those fees on average are about
25:02
Speaker 2: six to seven thousand per year. Now, what has the
25:05
Speaker 2: Trump administration done. The Trump administration has said that we
25:10
Speaker 2: have this authority called INA Section two twelve F and
25:14
Speaker 2: that authority everybody might recognize because it's the same thing
25:17
Speaker 2: as the travel ban. So, when Trump did the travel
25:20
Speaker 2: ban in his first term, and that travel ban was
25:24
Speaker 2: upheld by the Supreme Court that said that Iran, Iraq,
25:27
Speaker 2: et cetera, those individuals couldn't enter the United States. Now
25:31
Speaker 2: Trump has extended that ban in this presidency. So what
25:35
Speaker 2: the Trump administration has said is that statue doesn't just
25:39
Speaker 2: permit or authorize bans. It authorizes any restrictions that the
25:45
Speaker 2: president thinks are in the national interest. And so here
25:50
Speaker 2: the president said, well, let's try a different type of restriction.
25:54
Speaker 2: Let's try instead of a ban on people coming in
25:57
Speaker 2: on H to one b's, let's charge to one hundred
26:00
Speaker 2: thousand dollars a fees for people on H one B visas. Now,
26:05
Speaker 2: the problem with using the ban statute is that fee
26:09
Speaker 2: is only going to be applicable to people applying from abroad,
26:14
Speaker 2: and so the idea is they will have to pay
26:16
Speaker 2: a one hundred thousand dollars fee if they want one
26:19
Speaker 2: of these visas. And the reason for that would be Hey,
26:22
Speaker 2: to the extent that you think that these visas are
26:25
Speaker 2: undercutting American workers, that the only reason companies are using
26:28
Speaker 2: this is not because these are the best workers for
26:31
Speaker 2: the job, but instead because what they're trying to do
26:34
Speaker 2: is undercut the wages of American workers. Well, now we
26:38
Speaker 2: know that's not going to be true. If a company
26:40
Speaker 2: is willing to spend one hundred thousand dollars, then they
26:43
Speaker 2: clearly value this worker. That's the theory. Let's cut to
26:47
Speaker 2: the district court. The district court says, hey, that's fine.
26:50
Speaker 2: The Trump administration has this authority to charge one hundred
26:53
Speaker 2: thousand dollars and the story. So then there's an appeal.
26:57
Speaker 2: And in the middle of the appeal there is the
27:01
Speaker 2: case involving the use of taxation with regard to tariffs
27:06
Speaker 2: and whether the president exceeded the limits of the presidency
27:10
Speaker 2: and when the President issued these tariffs in the form
27:14
Speaker 2: of taxes, and in those cases, what the court said
27:17
Speaker 2: was only Congress can authorize these taxes. You can't have
27:21
Speaker 2: the administration basically passing new taxes without congressional authorities. So
27:27
Speaker 2: now the people who've been challenging this one hundred thousand
27:30
Speaker 2: dollars fee came and sort of transitioned their argument into
27:34
Speaker 2: the same argument as the tariffs, which is that this
27:37
Speaker 2: one hundred thousand dollars fee isn't an immigration restriction, it's
27:42
Speaker 2: a tax. And if it's a tax, then the president
27:45
Speaker 2: can't do it. It has to be done by Congress.
27:48
Speaker 2: And so the oral argument in this case that just
27:51
Speaker 2: happened on March ninth really focused on this issue as
27:54
Speaker 2: to what is this one hundred thousand dollars Is it
27:57
Speaker 2: a de facto ban, in which case we would add
28:00
Speaker 2: it sort of under the same travel ban free features
28:04
Speaker 2: we've been analyzing other cases under. Or is this a
28:07
Speaker 2: tax that's designed to raise revenue, because in the end,
28:10
Speaker 2: we expect that people are going to pay it, and
28:14
Speaker 2: so it's not going to ban anybody. People will pay
28:17
Speaker 2: the fee. Now, in practice, very few people are going
28:20
Speaker 2: to pay the fee. The administration has claimed that seventy
28:23
Speaker 2: people have paid this fee, which I find fascinating. I
28:26
Speaker 2: couldn't imagine that that would even be true. Of all,
28:29
Speaker 2: I have no reason to disbelieve this. I'm just shocked
28:32
Speaker 2: that anybody paid this hundred thousand dollars fee, but they
28:35
Speaker 2: claimed that seventy people did and so it's going to
28:38
Speaker 2: be interesting to see whether if it's a tax, it's
28:41
Speaker 2: much more likely to be stricken down, but if it's
28:43
Speaker 2: a ban, it's a lot less likely to be stricken down.
28:46
Speaker 3: So during the oral arguments, Judge Michelle Chiles asked counsel
28:52
Speaker 3: for the Trump administration kept pressing on how it was
28:55
Speaker 3: classifying what are you calling this? Is it a fee?
28:58
Speaker 3: Is it a tax? Is it ay? And the Department
29:01
Speaker 3: of Justice attorney said the label doesn't really matter, But
29:05
Speaker 3: doesn't the label really matter?
29:07
Speaker 2: Well, yes, the whole point is the label matters here
29:10
Speaker 2: because if they want to call it an immigration restriction,
29:14
Speaker 2: they're going to be in much better shape in terms
29:17
Speaker 2: of the deference. The Supreme Court has already given this
29:20
Speaker 2: as an immigration restriction, and I would have advised them
29:23
Speaker 2: that that was the best argument to make, that the
29:25
Speaker 2: one hundred thousand dollars fee is an immigration restriction designed
29:30
Speaker 2: to prevent the undercutting of American workers, it's not designed
29:34
Speaker 2: to raise revenue for the government. But they didn't make
29:37
Speaker 2: that argument. They just said it's irrelevant. And so from
29:41
Speaker 2: that standpoint, now they are having to see what the
29:45
Speaker 2: court is going to call this thing, and if the
29:48
Speaker 2: court calls it attacks, they're going to strike it down.
29:50
Speaker 2: But if the court calls it an immigration restriction that's
29:54
Speaker 2: designed to be in the national interest by preventing the
29:56
Speaker 2: eighth to one to B program from being used to
29:59
Speaker 2: undercut the America can work force, then that's going to
30:02
Speaker 2: be potentially a restriction they can do. Now that's going
30:06
Speaker 2: to run into its own potential statutory problem, because there's
30:09
Speaker 2: a whole bunch of statutes about the wage itself that
30:12
Speaker 2: you have to charge on H one b's and so
30:16
Speaker 2: the point being, if you really didn't think that was
30:18
Speaker 2: sufficient to protect the American workers, then you're running a
30:22
Speaker 2: foul of what Congress said. And so these are tough questions.
30:26
Speaker 2: It's band authority versus other statutes. That's something that's happening
30:31
Speaker 2: in asylum right now, and it's something that's happening in
30:34
Speaker 2: H one B, where the argument is there's two statutes
30:38
Speaker 2: that easily are plausible for a court to choose. One
30:42
Speaker 2: is the version that the Trump administration wants, one is
30:45
Speaker 2: the version that the foreign nationals suing the Trump administration wants.
30:50
Speaker 2: And in both cases, the courts are being asked to
30:52
Speaker 2: determine which statute actually is the applicable statute here.
30:57
Speaker 3: My guest is immigration law expertly on Fresco, a partner
31:01
Speaker 3: at Holland and Knight. In recent weeks, immigration agents have
31:06
Speaker 3: sort of scaled back aggressive enforcement and the streets sweep.
31:11
Speaker 3: They're focusing on conducting more targeted enforcement operations, so we
31:16
Speaker 3: haven't seen those violent clashes. So that's led to a
31:20
Speaker 3: drop in immigration arrests.
31:23
Speaker 2: Well, I think this is complicated because I think what's
31:27
Speaker 2: really happening right now is the Trump administration was trying
31:32
Speaker 2: to the famous expression goes build the plane while they
31:36
Speaker 2: were flying the plane, and I think they realized that
31:40
Speaker 2: as well intentioned as their goals may have been in
31:43
Speaker 2: the sense that they had made a campaign promise to
31:45
Speaker 2: have mass deportations and they wanted to carry out mass deportations,
31:50
Speaker 2: the point is is if you wanted to actually build
31:53
Speaker 2: an infrastructure around that, then you needed to do certain things.
31:57
Speaker 2: You needed to have more immigration court you needed to
32:01
Speaker 2: have more ice attorneys. You needed to have more attorneys
32:05
Speaker 2: in the Justice Department who would then do the appeals
32:09
Speaker 2: that went into the federal courts. You needed to have
32:12
Speaker 2: more detention space, and to all of that needed to
32:15
Speaker 2: be built out, and it needed to be built out
32:18
Speaker 2: within a framework where a lot of people were resigning
32:22
Speaker 2: from all of these positions because not everybody agrees with
32:25
Speaker 2: the mass deportation mission. So whatever you think about it,
32:29
Speaker 2: these are just the challenges of building a mass deportation infrastructure.
32:34
Speaker 2: Is you have to build all these things, and then
32:36
Speaker 2: you have to do it with a supply of lawyers
32:40
Speaker 2: that might be less because again, like I said, not
32:43
Speaker 2: so many lawyers go into law thinking that the reason
32:46
Speaker 2: they're going to have a legal career is to create
32:48
Speaker 2: a mass deportation framework. I mean, this wasn't even a
32:51
Speaker 2: thing a few years ago. So very few people who
32:54
Speaker 2: went to law school who would be eligible to take
32:56
Speaker 2: these jobs are people who went to law school with
33:00
Speaker 2: this mindset. And so all of these create challenges for
33:04
Speaker 2: the administration. And so what I think they've decided to
33:07
Speaker 2: do is, let's for the moment, while we have an
33:11
Speaker 2: election coming up in November, focus on the initial mission
33:16
Speaker 2: of detaining people who are people with criminal convictions or
33:21
Speaker 2: final orders of removal and getting as much of that
33:25
Speaker 2: population removed as possible while we build out this infrastructure.
33:30
Speaker 2: But they're still building it out. They're building more detention
33:33
Speaker 2: facilities all over the country. They're trying to end what's
33:37
Speaker 2: called the Board of Immigration Appeals, which was a second
33:41
Speaker 2: layer of review of a deportation order. So now they
33:44
Speaker 2: just want to have an immigration judge, one judge who
33:47
Speaker 2: makes a decision, and then if the federal courts want
33:50
Speaker 2: to get involved, then the federal courts. But they want
33:53
Speaker 2: to take away the administrative appeal that existed, and so
33:57
Speaker 2: that's in litigation right now, and then they want to
34:00
Speaker 2: have this framework of mandatory detention that whenever you put
34:04
Speaker 2: someone in deportation proceedings, they're going to have to fight
34:07
Speaker 2: it from detention, which the way to do that is
34:11
Speaker 2: to win these cases that are challenging that right now
34:15
Speaker 2: and then build out the mandatory detention space. So what
34:19
Speaker 2: they're trying to do now is have this consolidation period
34:23
Speaker 2: where they get all of these ducks in a row,
34:25
Speaker 2: so that maybe by January of twenty twenty seven, they
34:29
Speaker 2: can actually start really tightening the mass deportation machine because
34:37
Speaker 2: the infrastructure has been built. So I would not call
34:40
Speaker 2: this pause a permanent pause. I would call this a
34:44
Speaker 2: temporary pause so that the conflagrations that we saw on
34:48
Speaker 2: the street don't happen before November, but b to allow
34:54
Speaker 2: this detention deportation infrastructure to be built so that then
34:59
Speaker 2: it can re operate in twenty twenty seven and twenty
35:02
Speaker 2: twenty eight in.
35:03
Speaker 3: Light of that, you know, detention. On Wednesday, a federal
35:07
Speaker 3: judge scolded the Department of Homeland Security for detaining immigrants
35:12
Speaker 3: for a month or longer without bond hearings, calling to
35:16
Speaker 3: practice shocking and a huge whopping statutory violation. Judge Beryl
35:22
Speaker 3: Howell said that people accused of committing crimes get such
35:26
Speaker 3: bond hearings sooner than immigrants accused of civil offenses. So
35:31
Speaker 3: this is also part of the Trump administration's plan.
35:35
Speaker 2: Right, Well, what happens is this, So let's remember, first
35:39
Speaker 2: of all, why is any immigrant in detention? Because remember
35:43
Speaker 2: that in America we don't put people who are not
35:47
Speaker 2: criminals in detention. So the only reason immigrants are in
35:50
Speaker 2: detention is in order to secure their removal. So the
35:54
Speaker 2: Supreme Court has said, we will make a minor constitutional
35:58
Speaker 2: loophole for deen in the civil context, which is what
36:02
Speaker 2: immigration is, it's not considered criminal, it's considered the civil context.
36:06
Speaker 2: And by the way, that's a designation that benefits the government.
36:09
Speaker 2: It doesn't harm the government because if it was in
36:12
Speaker 2: the criminal context, then deportation cases would require jury trials
36:17
Speaker 2: and you couldn't have expost facto deportations or any of that.
36:21
Speaker 2: But all of that's permitted in civil So the government
36:24
Speaker 2: can do almost anything at once in the immigration context
36:27
Speaker 2: because it's considered a civil punishment, not a criminal punishment.
36:32
Speaker 2: But the one caveat to that is that the tension
36:35
Speaker 2: is supposed to be limited only to the bare minimum
36:39
Speaker 2: that is required in order to execute a deportation. And
36:44
Speaker 2: the flip side of that is that if you're not
36:48
Speaker 2: someone who's considered dangerous or a flight risk, constitutionally, the
36:54
Speaker 2: basis to detain you really starts to become very light
36:59
Speaker 2: in this context because it's the civil context and you're
37:03
Speaker 2: not a flight risk and you're not dangerous, And so
37:06
Speaker 2: that's what Judge Howell is saying, is how are you
37:09
Speaker 2: detaining these individuals? The Trump administration is saying, we're detaining
37:13
Speaker 2: them because we believe there's a statute that says that
37:17
Speaker 2: if you cross the border illegally and we find you,
37:21
Speaker 2: we can detain you until the day we deport you.
37:24
Speaker 2: And that's in litigation. The problem is Judge Howell has
37:29
Speaker 2: a different case she's dealing with, which has to do
37:32
Speaker 2: with can you arrest people in DC without a warrant
37:36
Speaker 2: for immigration because people were suing saying there was racial
37:39
Speaker 2: profiling going on and that there should be warrants, so
37:43
Speaker 2: that again ICE has to look for people that it
37:46
Speaker 2: knows are undocumented instead of just grabbing people in the
37:49
Speaker 2: middle of the street. And so she had agreed with
37:52
Speaker 2: with that, and this was a content hearing to determine
37:56
Speaker 2: what is happening now and in that chief that people
38:01
Speaker 2: are being detained for a month without bond hearings, and
38:04
Speaker 2: that's because of the backlog and the immigration courts. The
38:07
Speaker 2: immigration courts again, when you're building this infrastructure out where
38:12
Speaker 2: you're trying to do mass deportations and mass detentions, if
38:16
Speaker 2: you have many, many, many more people detained than you
38:19
Speaker 2: used to have, which is what we have. We used
38:21
Speaker 2: to have thirty to forty thousand people detained every day
38:25
Speaker 2: for immigration violations. Now we have something like seventy to
38:29
Speaker 2: eighty thousand. And you don't double the size of the
38:32
Speaker 2: immigration court, then what you're going to end up having
38:35
Speaker 2: is this exact situation where the bond hearings take longer.
38:40
Speaker 2: And it's not even necessarily a strategy, Hey let's have
38:45
Speaker 2: the bond hearings take longer. It's just inevitable because you've
38:49
Speaker 2: doubled the number of people who need bond hearings, and
38:52
Speaker 2: you haven't doubled the amount of courts or prosecutors or
38:56
Speaker 2: anything else that would need to deal with that. And
39:00
Speaker 2: so those are again issues that are going to end
39:03
Speaker 2: up being litigated. I'm sure there will be a class
39:05
Speaker 2: action that talks about this, and all of this is
39:09
Speaker 2: going to come to play, But I think the main
39:11
Speaker 2: decision that's going to really impact this is when the
39:14
Speaker 2: Supreme Court ultimately decides this issue of whether the Trump
39:19
Speaker 2: administration has authority to mandatorily detain any individual who's in
39:26
Speaker 2: America who not overstate their visa but illegally cross the border,
39:31
Speaker 2: because that's a new position that the Trump administration has
39:34
Speaker 2: taken and that's currently working its way up different circuits.
39:38
Speaker 2: The Fifth Circuit has said, yes, they do have this authority.
39:42
Speaker 2: Other circuits are ruling that they don't have the authority
39:45
Speaker 2: or they're about to rule that, and so it's going
39:47
Speaker 2: to get to the Supreme Court and that's ultimately going
39:50
Speaker 2: to address millions of people that are here, whether they'll
39:54
Speaker 2: those millions of people can be detained and put into
39:57
Speaker 2: a mass deportation framework, or whether the Trump administration has
40:01
Speaker 2: to give bond hearings to those people once they're apprehended.
40:06
Speaker 3: Thanks so much. That's Leon Fresco of Holland and Knight,
40:09
Speaker 3: and that's it for this edition of The Bloomberg Law Show.
40:12
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40:14
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40:19
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40:31
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