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Mixed Reaction in Courts to Trump's US Troop Plans · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: President Donald Trump's plan to send hundreds of troops to
0:12
Speaker 2: Oregon and Illinois to counter protests against his immigration crackdown
0:17
Speaker 2: faced two major tests today in separate courts, as state
0:21
Speaker 2: officials continued to raise the alarm about the White House's
0:25
Speaker 2: domestic use of the military, and there appeared to be
0:29
Speaker 2: mixed reactions in the contentious hearings in San Francisco and Chicago.
0:34
Speaker 2: A federal appeals court in San Francisco appeared to back
0:38
Speaker 2: Trump's request to overturn a temporary order barring his deployment
0:43
Speaker 2: of the National Guard to Portland, but a federal judge
0:47
Speaker 2: in Chicago was critical of whether there was legal support
0:51
Speaker 2: for sending troops into that city. My guest is immigration
0:55
Speaker 2: law expert Leon Fresco, a partner at Hollanda Knight leont Teli,
1:00
Speaker 2: tell us about the issue in the appellate court hearing
1:03
Speaker 2: in San Francisco.
1:04
Speaker 1: This case involved the Portland deployment of National Guard troops
1:09
Speaker 1: at the Portland where the Trump administration was saying that
1:13
Speaker 1: they needed those National Guard troops into Portland to guard
1:17
Speaker 1: the federal ice facilities and the federal ice officers who
1:20
Speaker 1: are engaging in their mission, and their argument is that
1:23
Speaker 1: Portland is such a dangerous place that the Guard is
1:27
Speaker 1: needed because their local officials are not sufficient to protect
1:31
Speaker 1: the federal interests that are there in Portland trying to
1:35
Speaker 1: enforce the immigration laws. And so there was a district
1:38
Speaker 1: court opinion that enjoyed that use of National Guard for
1:42
Speaker 1: that purpose and said that the Guard couldn't be used
1:44
Speaker 1: for that purpose if it was in contravention to the
1:48
Speaker 1: wishes of the State of Oregon, which is what happened
1:51
Speaker 1: near the State of Oregon did not want those guards
1:54
Speaker 1: being sent to Oregon, especially if it was going to
1:57
Speaker 1: be done for the purposes of supplementing or augment and
2:00
Speaker 1: immigration enforcement. So that's why they had filed the suit originally.
2:04
Speaker 1: This case now went to the Ninth Circuit for a
2:08
Speaker 1: stay of that order so that when it goes on
2:11
Speaker 1: appeal for the merits that it be stayed so that
2:14
Speaker 1: the National Guard could be deployed into Portland. And although
2:18
Speaker 1: there's not a decision yet, it does look like at
2:20
Speaker 1: the argument two of the Ninth Circuit judges who were
2:24
Speaker 1: appointed by President Trump were of the belief that yes,
2:27
Speaker 1: there could be a brightline area where you could be
2:32
Speaker 1: deploying National Guard troops for improper purposes. But we couldn't
2:37
Speaker 1: speculate upfront that that was going to happen, and that
2:41
Speaker 1: if the Guard was going to be strictly deployed just
2:45
Speaker 1: to guard the federal interest, that that, on its face
2:48
Speaker 1: would it be a violation of the rules by which
2:52
Speaker 1: you could deploy the National Guard. And so for that reason,
2:55
Speaker 1: even though a decision not out, it looks like there
2:57
Speaker 1: will be a decision that will say, hey, look, if
3:00
Speaker 1: this is applied in an unconstitutional manner, come back to
3:04
Speaker 1: us and tell us that. But on its face, we're
3:06
Speaker 1: not going to say that it's unconstitutional to send National
3:09
Speaker 1: Guard to Portland.
3:10
Speaker 2: So what are the rules for sending in the National Guard?
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Speaker 2: Because the administration is argued in both cases that there's
3:20
Speaker 2: an active threat of rebellion and that the federal government
3:24
Speaker 2: can't carry out the law without the National Guard's assistance.
3:28
Speaker 1: Well, there's various scenarios in which you can bring the
3:32
Speaker 1: National Guard, and one would be if you thought there
3:35
Speaker 1: was a rebellion going on, and there is certainly that
3:39
Speaker 1: area of debate about whether the circumstances in those locations
3:44
Speaker 1: are tantamount to a rebellion, and that's where in the
3:49
Speaker 1: Chicago case there's sort of this argument going on there
3:53
Speaker 1: about whether there's a rebellion or not. But there's also
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Speaker 1: a different part where it's just the Guard can be
3:59
Speaker 1: deployed to guard federal property and to guard federal workers
4:04
Speaker 1: and law enforcement people trying to do their job. So
4:07
Speaker 1: under either of those two scenarios, the National Guard can
4:11
Speaker 1: be deployed. And so the question is just the Trump
4:15
Speaker 1: administration have sufficient evidence that that's all they're going to
4:19
Speaker 1: be doing, or will they be crossing the line into
4:22
Speaker 1: enforcement of civil laws, which the National Guard is not
4:26
Speaker 1: permitted to do. And so that's where when you have
4:28
Speaker 1: this ICE enforcement it becomes problematic because if the courts
4:32
Speaker 1: start to think that the National Guard is basically part
4:35
Speaker 1: and parcel of ICE enforcement, then that's unconstitutional and that's
4:40
Speaker 1: not permitted. Whereas if the Trump administration can sort of
4:44
Speaker 1: make this periphery type argument that no, they're not enforcing
4:47
Speaker 1: immigration law, but they're protecting the ICE agents, because what
4:51
Speaker 1: happens is whenever ICE tries to work in these sounds,
4:54
Speaker 1: they're getting harassed, they're getting things thrown at them. They're
4:58
Speaker 1: getting cars being driven into their cars and all kinds
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Speaker 1: of other violent acts that they need protection, then that
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Speaker 1: argument starts to have more salience than if they think
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Speaker 1: that what the National Guard is doing is not protecting
5:13
Speaker 1: these ice agents but actually force multiplying immigration enforcement in
5:19
Speaker 1: those areas.
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Speaker 2: The two trumpetpointees really grilled the lawyer for Oregon. Judge
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Speaker 2: Ryan Nelson, asked why Oregon, in the city of Portland,
5:29
Speaker 2: should be able to second guess the president's determination about
5:33
Speaker 2: the level of disruption the protests were causing. So the
5:37
Speaker 2: president who's sitting in Washington is going to determine the
5:41
Speaker 2: level of protests When a judge in Portland, a Trump appointee,
5:46
Speaker 2: found that Trump's conclusions were not tethered to the facts.
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Speaker 1: I do think if there is the debate on what
5:56
Speaker 1: the level of violence is in Portland, as opposed to
6:00
Speaker 1: cabining it to protection of federal facilities and federal officers,
6:05
Speaker 1: and that were instead talking about is there too much
6:09
Speaker 1: of an insurrection going on supposedly in Portland or in Oregon,
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Speaker 1: that would then justify the National Guard being brought on
6:17
Speaker 1: that basis to be able to just generally protect law
6:20
Speaker 1: and order. Then I do think that argument if it
6:25
Speaker 1: goes on Bank to the Ninth Circuit, because that argument
6:28
Speaker 1: may prevail two to one in this panel, but if
6:31
Speaker 1: it were to go on Bank to the Ninth Circuit,
6:33
Speaker 1: it would probably be overturned. And then the Supreme Court's
6:37
Speaker 1: going to have to decide what level of difference goes
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Speaker 1: to the president for this kind of larger law enforcement
6:45
Speaker 1: sort of keeping the peace type of National Guard, And
6:49
Speaker 1: that's going to be brand new law that we're going
6:52
Speaker 1: to have to see what the Supreme Court does with
6:54
Speaker 1: regard to these arguments that, wow, things have gotten so bad,
7:00
Speaker 1: we need the National Guard to actually calm things down.
7:03
Speaker 1: So they're not just going to be protecting federal facilities
7:06
Speaker 1: and they're not just going to be protecting the ice officer,
7:09
Speaker 1: but they're actually going to be protecting everybody because things
7:12
Speaker 1: have gotten so bad. And so to the extent that
7:15
Speaker 1: that Trump administration doesn't want a cabin what the Guard
7:19
Speaker 1: is doing to just the federal protection, then they're going
7:22
Speaker 1: to need to rely on this larger argument that the
7:25
Speaker 1: president gets different for what the president means is the
7:30
Speaker 1: threat level in that area. And then now it's going
7:32
Speaker 1: to be for the courts to decide is the president
7:35
Speaker 1: entitled to that difference and for how long of a
7:37
Speaker 1: period of time, or does the state get that difference
7:43
Speaker 1: since it's their national guard that's being put into service.
7:46
Speaker 2: Because appellate courts are supposed to defer to the district
7:51
Speaker 2: court judges as fact finders, but these two appellate judges
7:54
Speaker 2: didn't seem to be doing that, didn't seem to be
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Speaker 2: crediting the district court judge at all.
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Speaker 1: Well, they may think that the district judge is right
8:02
Speaker 1: on the facts, but that at the end of the day,
8:05
Speaker 1: the district judge doesn't have any authority to make any
8:08
Speaker 1: factual findings. If the decision they're going to issue is
8:12
Speaker 1: that basically it's not cognitable that a state can come
8:16
Speaker 1: in and sue and say we disagree with the president's
8:19
Speaker 1: assessment of the threat level in the States. So if
8:23
Speaker 1: that's really where they're going, then they're going to have
8:25
Speaker 1: to figure out some lines that they're drawing in order
8:29
Speaker 1: to not make that where the president can deploy the
8:31
Speaker 1: National Guard for any purpose that the president wants. But
8:34
Speaker 1: it's possible that this two to one panel may issue
8:38
Speaker 1: a decision that says that that the President gets either
8:41
Speaker 1: complete difference or almost complete difference to decide when to
8:46
Speaker 1: deploy the guard. And then we'll have to see when
8:49
Speaker 1: the und Bank panel of the Ninth Circuit word to intervene,
8:54
Speaker 1: or perhaps the Supreme Court, what they would say about
8:56
Speaker 1: their conclusion.
8:57
Speaker 2: Oregon will probably be luckier if it's just the Bank panel.
9:01
Speaker 2: And I just want to explain that on this panel
9:03
Speaker 2: you had a two to one situation, two Trump appointees
9:08
Speaker 2: and one Clinton appointee. Looking at all the judges on
9:12
Speaker 2: the Ninth Circuit, there are thirteen Republican appointees and sixteen
9:19
Speaker 2: Democratic appointees. So if there is an on bank hearing,
9:23
Speaker 2: the odds are better for organ.
9:26
Speaker 1: In certain courts, the entire court, meaning all of the
9:29
Speaker 1: active judges actually sit there and would look at the case.
9:34
Speaker 1: In the Ninth Circuit there's too many active judges and
9:37
Speaker 1: so they actually also have a panel. It just happens
9:39
Speaker 1: to have more judges in it. If they have a
9:41
Speaker 1: panel of twelve, which is what their m Bank panels are,
9:45
Speaker 1: then that twelve judge panel. We still don't know what
9:48
Speaker 1: the takeaway is, but yes, it is more likely that
9:52
Speaker 1: there will be a panel that contains fewer Trump appointed judges,
9:57
Speaker 1: and even there, even if a judge was not appointed
10:01
Speaker 1: by Trump but was appointed by a other Republican president,
10:05
Speaker 1: sometimes even those judges have shown less deference to the
10:09
Speaker 1: Trump administration than the judges that have been specifically appointed
10:13
Speaker 1: by President Trump.
10:14
Speaker 2: There was a hearing in Chicago today before a federal
10:19
Speaker 2: judge about Trump's deployment of troops to Chicago. So it
10:25
Speaker 2: seems like the lower court judges who are looking at
10:28
Speaker 2: the facts on the ground have different opinions than the
10:32
Speaker 2: appellate court judges in these situations.
10:35
Speaker 3: Tell us about what's what the issue is there?
10:38
Speaker 1: Correct? There? I mean it's the same argument again that
10:42
Speaker 1: the president's determination about the cities whether they meet the
10:46
Speaker 1: legal standard for bringing National Guard troops under federal control.
10:50
Speaker 1: And again here there's two issues, which is are the
10:55
Speaker 1: guardsmen going to only be protecting federal property and federal
11:00
Speaker 1: agents or are they going to be stopping a violent insurrection?
11:05
Speaker 1: And what the judge is saying in the Chicago case
11:09
Speaker 1: is well, what are you doing? And so the judge
11:12
Speaker 1: started asking a bunch of questions to the DOJ, which
11:15
Speaker 1: I think was the correct way to do this, to
11:18
Speaker 1: try to say which argument are you resting on are
11:20
Speaker 1: you resting on this is only federal property, or are
11:24
Speaker 1: you saying that the situation is so bad that you're
11:27
Speaker 1: going to be doing other kinds of enforcement. And because
11:31
Speaker 1: the DOJ attorney really I think probably didn't have a
11:38
Speaker 1: answer on what the full mission was going to be
11:41
Speaker 1: for these National Guard coming into Chicago, rightfully, couldn't sort
11:46
Speaker 1: of give the most precise answers to all of these
11:49
Speaker 1: hypothetical questions. And so the judge looks like the judge
11:53
Speaker 1: is going to enjoin the National Guard, just like the
11:56
Speaker 1: Portland District judge did, saying it looks like you're going
12:00
Speaker 1: to be going beyond the federal protection situation. And because
12:06
Speaker 1: of that, you haven't shown the fact that you need
12:09
Speaker 1: to on the ground to be able to show that
12:12
Speaker 1: you can deploy the Federal National Guard for any other
12:15
Speaker 1: purpose here.
12:16
Speaker 2: Yeah, I mean the judge, and this has happened in
12:19
Speaker 2: other hearings, said she was troubled by what she described
12:23
Speaker 2: as a disconnect between the official orders from the federal
12:27
Speaker 2: government directing the activities of military troops in Chicago and
12:32
Speaker 2: the public statements the rhetoric made by Trump about what
12:36
Speaker 2: their duties in the city are. I mean, Trump keeps
12:38
Speaker 2: talking about crime, and when the prosecutors get into court
12:44
Speaker 2: they talk about how this is, you know, limited. So
12:48
Speaker 2: the judge said, what I am troubled by at the
12:50
Speaker 2: moment is when I try to nail down what of
12:52
Speaker 2: those things that they will do, you don't really offer
12:54
Speaker 2: a clear answer, probably because they don't have a clear answer, right.
12:59
Speaker 1: I don't think the ny probably has a clear answer
13:02
Speaker 1: because I do think the mission hasn't been defined with
13:05
Speaker 1: the level of specificity that would give the attorney a
13:09
Speaker 1: clear answer. And so for that reason, I think that
13:12
Speaker 1: that's just an unfortunate situation for that specific attorney to
13:16
Speaker 1: be in. But that's the reason why this judge is
13:19
Speaker 1: then't going to say fine, then what you're trying to
13:21
Speaker 1: do is you're trying to deploy the National Guard for
13:25
Speaker 1: a broad purpose, not just for the federal purpose. And
13:29
Speaker 1: since you're not willing to foreclose this and so because
13:32
Speaker 1: of that, you haven't submitted enough factual basis that there's
13:37
Speaker 1: enough chaos and insurrection going on that you need the
13:40
Speaker 1: National Guard to come in to stop such conduct from
13:44
Speaker 1: a curry.
13:45
Speaker 2: And then we'll see what the Seventh Circuit says coming
13:48
Speaker 2: up Next, we're going to talk about some other immigration issues,
13:51
Speaker 2: including lawsuits over the high price tag Trump has put
13:54
Speaker 2: on h One v.
13:55
Speaker 3: Visus.
13:56
Speaker 2: I'm Drew and Grasso, and you're listening to Bloomberg. Now
14:00
Speaker 2: to the continuing legal saga of Kilmore Abrego Garcia, the
14:05
Speaker 2: Salvadoran man deported in error to l Salvador last March
14:09
Speaker 2: and then returned to the United States to face criminal
14:12
Speaker 2: charges in Tennessee. Could he be released on Friday. I've
14:16
Speaker 2: been talking to immigration attorney Leon Fresco of Holland and Knight.
14:21
Speaker 3: Leon.
14:21
Speaker 2: It's been about seven months since the case of Abrego
14:25
Speaker 2: Garcia was in the headlines. Tell us where his case
14:29
Speaker 2: stands right now.
14:31
Speaker 1: So, in the Kilmar Abrego Garcia case, this was the
14:34
Speaker 1: individual who got sent to El Salvador who had a
14:37
Speaker 1: protection order that said that they couldn't be deported to
14:42
Speaker 1: Al Savador specifically on the basis of gang violence, not
14:46
Speaker 1: on the basis of detention in that Seacott facility, which
14:49
Speaker 1: is the facility for terrorists that the President Bucella made
14:53
Speaker 1: in El Savador. But nevertheless there was an order specifically
14:56
Speaker 1: saying that Abrego Garcia couldn't be deported to El Salvador,
15:01
Speaker 1: and nevertheless he was and then the question was was
15:04
Speaker 1: he ever going to be brought back. He ended up
15:06
Speaker 1: finally being brought back because there was an extradition on
15:10
Speaker 1: human trafficking charges. The human trafficking charges judge led about
15:15
Speaker 1: on bond that basically said, it doesn't look like there's
15:19
Speaker 1: really a much of a case here for human trafficking.
15:22
Speaker 1: So he was placed back into immigration detention to try
15:26
Speaker 1: to undo the order that executed the removal to Alsavador
15:34
Speaker 1: that said there's no more gang violence than Elsavador because
15:37
Speaker 1: President Bukela has stopped and has actually put in this prison,
15:41
Speaker 1: et cetera. And they did get an order that basically
15:45
Speaker 1: said they could do this deportation, but it has to
15:49
Speaker 1: be to a different country, and so Abraco Garcia has
15:53
Speaker 1: actually stipulated, fine, I'll go to Costa Rica. And the
15:58
Speaker 1: United States government's card position and is, no, we don't
16:00
Speaker 1: want to send you to Costa Rica. We want to
16:03
Speaker 1: send you to what was formerly known as Swaziland, which
16:06
Speaker 1: is a little land mass inside of South Africa which
16:09
Speaker 1: is now called Swatini, and that's where we want to
16:13
Speaker 1: send you to, which there is case law called Zavidas
16:18
Speaker 1: versus the United States, which says, once you're in that
16:21
Speaker 1: situation where the government has said they want to deport
16:24
Speaker 1: you to a certain location, if they can't show that
16:28
Speaker 1: it's significantly likely to happen in the foreseeable future, they
16:32
Speaker 1: have to let you out of detention. And so that's
16:35
Speaker 1: the current fight is fine, you're not going to send
16:37
Speaker 1: me to Costa Rica. You want to send me to Swaziland,
16:40
Speaker 1: flash Swatini. How quickly do you plan on doing this?
16:43
Speaker 1: Are you just going to keep me in detention for
16:46
Speaker 1: the foreseeable future? And there's a hearing on Friday. If
16:50
Speaker 1: the court doesn't get a date certain for this removal,
16:55
Speaker 1: the court is probably going to let mister Abrego Garcia
16:58
Speaker 1: out of detention again, which I think will very much
17:02
Speaker 1: upset the Trump administration and then to have to make
17:04
Speaker 1: some decisions. Do they just send him to Costa Rica
17:07
Speaker 1: then or unclear what they'll be willing to do in
17:09
Speaker 1: that situation.
17:11
Speaker 2: Why would there be a problem or delay in sending
17:15
Speaker 2: him to Swatini.
17:17
Speaker 1: It's possible that the Swine government does want to accept
17:23
Speaker 1: They have already accepted some people, but they may not
17:25
Speaker 1: want to accept mister abrago Garcia specifically, or they may
17:30
Speaker 1: be trying to figure out some plan for what they're
17:33
Speaker 1: going to do with him when he arrives, and so
17:36
Speaker 1: these reasons for delays are very unclear. But they're going
17:40
Speaker 1: to have to come up with a date certain, that
17:42
Speaker 1: is for a fact, so that if they don't have
17:44
Speaker 1: a date certain, then the judge is probably going to
17:47
Speaker 1: let out a brago Garcia on Friday.
17:50
Speaker 2: He would be let out temporarily or premporarily until there's
17:54
Speaker 2: a date they can place him immediately back in detention
17:58
Speaker 2: if they can come up with a date for deportations,
18:01
Speaker 2: that they could say, Okay, we had.
18:03
Speaker 1: The travel document, we're now going to deport him on
18:06
Speaker 1: October twenty first or something.
18:08
Speaker 2: Leon How often does the government deport people to countries
18:15
Speaker 2: where they have no connections at all.
18:19
Speaker 1: So it's not unprecedented. Prior to the Trump administration, I
18:23
Speaker 1: was involved in a very famous case when I was
18:25
Speaker 1: in the Department of Justice where there was a Palestinian
18:28
Speaker 1: terrorist who blew up a plane in Hawaii and he
18:32
Speaker 1: actually got a plea deal, and in this plea deal,
18:35
Speaker 1: he was only given twenty five years in prison because
18:38
Speaker 1: he was supposed to turn in other terrorists, and he
18:40
Speaker 1: actually didn't end up doing it, and so the twenty
18:42
Speaker 1: five years ran out and there was no place to
18:45
Speaker 1: deport him because Israel didn't want to take him. And
18:47
Speaker 1: so the question is what were we going to do
18:49
Speaker 1: with this person or were we just going to let
18:51
Speaker 1: them out and start walking around the United States when
18:53
Speaker 1: this person had blown up at an airplane And so
18:57
Speaker 1: the US government made negotiations and actually got Mauritania to
19:01
Speaker 1: take this individual. So this does happen in cases like this,
19:04
Speaker 1: but the Trump administration is trying to deploy this in
19:07
Speaker 1: a much broader fashion. They're sending people to Ghana, to Swatini,
19:13
Speaker 1: to Libya, to El Salvador, to many other countries. And
19:17
Speaker 1: they're actually having thesea negotiations with countries that are very
19:21
Speaker 1: interested in having foreign students and other foreign nationals get
19:26
Speaker 1: visas to come to America, and they're saying, fine, if
19:29
Speaker 1: you want better treatment on that, you will have to
19:31
Speaker 1: agree to accept people who're trying to deport from other countries.
19:36
Speaker 1: And so some countries like Ghana have said yes and
19:39
Speaker 1: other countries have said no. But it's going to be
19:42
Speaker 1: very interesting moving forward. And by the way, the idea
19:45
Speaker 1: for this is twofold. One is to be able to
19:48
Speaker 1: execute deportations in cases where you can't currently do it,
19:53
Speaker 1: So there's just the guns and bolts of it. But secondly,
19:57
Speaker 1: it's also a massive deterrence where say you're from a
20:01
Speaker 1: country like Cuba or China, and you say, oh, well,
20:05
Speaker 1: there's no downside to coming to the US illegally because
20:08
Speaker 1: China won't accept me or Cuba won't accept me. Well,
20:12
Speaker 1: now the government can say, yeah, but how about if
20:14
Speaker 1: we send you to Libya or South Sudan. You're not
20:17
Speaker 1: going to like that too much, so don't try to
20:19
Speaker 1: come here. So it's to give also that extra layer
20:22
Speaker 1: of deterrent so that people won't come here thinking that
20:25
Speaker 1: their country won't accept them back.
20:28
Speaker 2: You know, we talked before about President Trump putting one
20:31
Speaker 2: hundred thousand dollars fee on new h one B workers' visas,
20:37
Speaker 2: and so a coalition of employers is suing. Isn't it
20:42
Speaker 2: up to the federal government to set the fee?
20:45
Speaker 1: So this is going to be a very interesting case.
20:47
Speaker 1: It's a coalition of unions, universities, nursing companies, and professional organizations,
20:53
Speaker 1: and what they're saying is that the way this fee
20:57
Speaker 1: works is if you want to put in the fee,
21:01
Speaker 1: you have to actually go through the regulatory process of
21:04
Speaker 1: the Administrative Procedure Act and actually do the whole notice
21:07
Speaker 1: in comment and do the year long regulatory process with
21:11
Speaker 1: all the analysis on the economy and everything else. You
21:14
Speaker 1: can't use the travel ban Authority. And so this is
21:18
Speaker 1: going to be an argument because the Travel Ban Authority
21:21
Speaker 1: says very specifically, the President can put any terms and
21:25
Speaker 1: conditions the president wants on the entry of people into
21:29
Speaker 1: the United States. But the H one B Statute says
21:33
Speaker 1: that any changes to the H one B program has
21:36
Speaker 1: to be done visa the regulation. And so there's two
21:40
Speaker 1: statutes that literally conflict with one another, and the Court's
21:44
Speaker 1: going to have to decide which one governs here.
21:46
Speaker 2: And finally, we've also discussed before Venezuelan's temporary protected status,
21:53
Speaker 2: and this seems to be in the category of the
21:55
Speaker 2: lower courts rule one way and then the case gets
21:59
Speaker 2: to the Supreme Court, the Supreme Court reverses. So the
22:02
Speaker 2: Supreme Court is allowing Trump to lift the temporary protected
22:08
Speaker 2: status of Venezuelans.
22:10
Speaker 1: Correct. This has happened twice. Now, where what happened was
22:13
Speaker 1: first there was a preliminary injunction, and in the preliminary injunction,
22:19
Speaker 1: the court ruled the lower court. The district Court ruled
22:21
Speaker 1: that the president could not get rid of temporary protected
22:24
Speaker 1: status from Venezuelans because the idea was that the administration
22:29
Speaker 1: didn't do the analysis of what was actually happening in
22:32
Speaker 1: Venezuela and predetermined the outcome, and so it was not
22:37
Speaker 1: a proper revocation of temporary protective status. The Supreme Court
22:42
Speaker 1: put a stay on that temporary injunction, and so everyone thought, well,
22:46
Speaker 1: that's over. The Venezuelans have lost their temporary protected status
22:50
Speaker 1: and the story. Then the District Court said, well, that
22:53
Speaker 1: stay was only of the temporary injunction, but now I'm
22:57
Speaker 1: issuing a final injunction. And so I'm I'm that's bound
23:00
Speaker 1: by that court stay, especially because the court didn't actually
23:04
Speaker 1: explain it's what. They issued one of these one line
23:07
Speaker 1: opinions lifting the injunction, saying, hey, we're staying the injunction.
23:12
Speaker 1: So I don't know what the basis was, but maybe
23:15
Speaker 1: they didn't like something in the temporary injunction. But now
23:18
Speaker 1: I'm issuing a final injunction that is really looking at
23:21
Speaker 1: the evidence of what was considered, so I have the
23:24
Speaker 1: ability to do this again. So the court again said
23:27
Speaker 1: the Venezuelans keep their temporary protected status. Everyone was happy
23:31
Speaker 1: again in the Venezuelan community. But now the government appeals
23:36
Speaker 1: it and then the Supreme Court issues the exact same
23:38
Speaker 1: order again staying this protection. So now as of November,
23:44
Speaker 1: the temporary protected status will be gone and all of
23:47
Speaker 1: these Venezuelans, hundreds of thousands of them, will be an
23:50
Speaker 1: illegal status subject to deportation. And it's going to be
23:54
Speaker 1: very complicated. What's going to happen with all of these individuals?
23:58
Speaker 2: Leon, Are there any other group groups of foreign nationals
24:02
Speaker 2: who still have temporary protected status?
24:04
Speaker 1: The only country that has temporary protected status that has
24:08
Speaker 1: not been disturbed, interestingly enough, because it's actually what I
24:13
Speaker 1: would argue the most stable because of who the president
24:16
Speaker 1: is is El Salvador. But El Salvador obviously has the
24:21
Speaker 1: president that most friendly, the President Trump, and it appears
24:25
Speaker 1: that obviously some arrangement was made to keep the El
24:30
Speaker 1: Salvadoran TPS available. So that's the one country that has
24:34
Speaker 1: kept its temporary protective status.
24:37
Speaker 2: That certainly seems odd. Thanks so much, Leon, As always
24:42
Speaker 2: that's Leon Fresco, a partner at Honda Knight.
24:47
Speaker 4: What you're sketching out for us is a potential disaster.
24:52
Speaker 4: In other words, you're saying, if the candidate's going to
24:55
Speaker 4: win by sixty five percent, no standing. But if the candidate,
24:59
Speaker 4: you know, hopes to win by a dozen votes, and
25:02
Speaker 4: there are places in the country where that happens over
25:04
Speaker 4: and over again, then he has standing. But we're not
25:08
Speaker 4: going to know that until we get very close to
25:10
Speaker 4: the election, right, and so it's going to be in
25:13
Speaker 4: the middle the most fraught time for the court to
25:15
Speaker 4: get involved in electoral politics. That's when you say we
25:18
Speaker 4: should jump in.
25:19
Speaker 2: Chief Justice John Roberts painted a bleak picture of judges
25:24
Speaker 2: having to make decisions close to an election about whether
25:28
Speaker 2: a political candidate has the legal right to sue over
25:32
Speaker 2: their states election laws based on the candidate's chances of
25:36
Speaker 2: success at the ballot box. The Chief wasn't alone in
25:40
Speaker 2: that assessment. A majority of conservative justices seem to feel
25:45
Speaker 2: the same. Illinois Republican and Congressman Mike Bost is challenging
25:50
Speaker 2: the state law that allows mail in ballots to be
25:53
Speaker 2: counted if they're received up to two weeks later, the
25:57
Speaker 2: Seventh Circuit throughout Boss case, finding that the veteran congressman
26:01
Speaker 2: didn't have standing to sue because his claims of the
26:05
Speaker 2: law hurting his chances were speculative at best. But the
26:09
Speaker 2: conservative justices appeared open to allowing Boss's lawsuit to proceed.
26:15
Speaker 2: They seemed skeptical about the idea that a candidate's vote
26:18
Speaker 2: totals should affect their ability to sue and a court
26:22
Speaker 2: making that decision. Here's Justice Neil Gorsuch.
26:26
Speaker 5: And then along the way, is there something unseemly about
26:29
Speaker 5: federal courts making prognostications about a candidate's chance of success
26:36
Speaker 5: immediately before an election that itself might influence the election?
26:41
Speaker 2: But the liberal justice is questioned whether Bost had shown
26:44
Speaker 2: evidence that he was harmed by the law. Justice Elena
26:48
Speaker 2: Kagan told the Assistant Solicitor General Michael Talent that it
26:52
Speaker 2: seemed like the suit was one in search of a problem.
26:56
Speaker 6: I mean, I guess I just sort of think, like,
26:58
Speaker 6: what's the problem here?
27:00
Speaker 2: The problem here and what our rule gets to is
27:03
Speaker 2: the fact that candidates are forced to gamble that these
27:06
Speaker 2: ballots are going to affect the outcome of their elections.
27:08
Speaker 6: I don't think we've ever actually asked the RNC or
27:12
Speaker 6: the DNC to do anything like that. What we've asked
27:15
Speaker 6: the parties to do is to And this is why
27:17
Speaker 6: you don't get these cases thrown out on standing grounds,
27:21
Speaker 6: because there are perfectly easy ways for a party to
27:24
Speaker 6: say why a new rule is going to harm them
27:27
Speaker 6: in the electoral game.
27:28
Speaker 2: Illinois is among eighteen states and the District of Columbia
27:32
Speaker 2: that accept male ballots received after election day as long
27:37
Speaker 2: as they're postmarked honor before that date. Joining me is
27:40
Speaker 2: elections law expert Richard Brofalt, a professor at Columbia Law School.
27:45
Speaker 2: Rich tell us about boss lawsuit.
27:49
Speaker 7: So, in this case, Congress from Boston's challenging Illinois's law
27:53
Speaker 7: that permits mail in ballots to be counted up to
27:56
Speaker 7: two weeks after election day, provided that they are postmarked
28:00
Speaker 7: of election day basically allows local ports of elections to
28:03
Speaker 7: count late received ballots provided that they were actually mailed
28:07
Speaker 7: as of election day. His claim is that the respect
28:10
Speaker 7: to a congressional election, this violates the federal law that
28:12
Speaker 7: says that we have a single election day, and that's
28:15
Speaker 7: the second Tuesday in November.
28:17
Speaker 2: A lower court found he didn't have standing to sue
28:20
Speaker 2: tell us about the lower court's decision.
28:23
Speaker 7: Right, This was the lower court in Illinois, where he's from. Basically,
28:27
Speaker 7: he did not claim that this was going to cost
28:29
Speaker 7: him the election. He basically claimed that this could affect
28:33
Speaker 7: his share of the vote and that it also costs
28:36
Speaker 7: his campaign some money to keep staff going to monitor
28:39
Speaker 7: the lead counting of the ballots. But he didn't make
28:42
Speaker 7: the argument that he was likely to lose, that he
28:44
Speaker 7: had the essential risk of losing his election because of this.
28:47
Speaker 7: So the lower court and actually the Court of Appeals
28:49
Speaker 7: and the seven Circuits found that he didn't have standing.
28:52
Speaker 7: That standing generally requires that you make an allegation of harm,
28:56
Speaker 7: and they felt he had not alleged any harm, which
28:59
Speaker 7: is to say losing election.
29:00
Speaker 3: He won by like seventy five percent of the vote.
29:03
Speaker 7: Right, And he's an eight or ten term member of Congress.
29:06
Speaker 7: And this law in Illinois been on the books now
29:08
Speaker 7: for quite some time. So he's run and won at
29:10
Speaker 7: least a half dozen, possibly ten elections under this rule.
29:14
Speaker 3: What's the threshold legal question here?
29:17
Speaker 7: Well, the question is whether we as standing. I mean,
29:19
Speaker 7: this case is being read against the backdrop of the
29:21
Speaker 7: challenge to abs and de ballots. The ultimate merits question
29:25
Speaker 7: of whether or not it violates federal law for stakes
29:28
Speaker 7: to continue to count and nail in ballots after election
29:31
Speaker 7: day provided their postmark before. Indeed, there's a decision out
29:34
Speaker 7: of the Fifth Circuit that involve the Mississippi that says
29:36
Speaker 7: it does violate the law. This is ultimately going to
29:39
Speaker 7: be about that. But the question before the court of
29:41
Speaker 7: this time is standing. What are the conditions wherein a
29:45
Speaker 7: candidates standing to challenge an election law before the election
29:50
Speaker 7: and Congress and Boast and his lawyer are basically arguing
29:53
Speaker 7: that the fact that he is a candidate inherently gives
29:56
Speaker 7: him standing, that candidates by definition have standing to challenge
30:00
Speaker 7: the laws that govern the running of elections. He also
30:03
Speaker 7: has some backup arguments, but that's in some sense. His
30:06
Speaker 7: argument Number one is he is a candidate, therefore he
30:09
Speaker 7: is standing.
30:09
Speaker 3: And what is Illinois arguing?
30:11
Speaker 7: Illinois arguing that under basic standing doctrine General Supreme Court
30:15
Speaker 7: standing doctrine, you have to make an allegation that there's
30:18
Speaker 7: a substantial risk of harm and that he hasn't argued
30:21
Speaker 7: that he hasn't shown that this is likely to cost
30:24
Speaker 7: him his election. And therefore that that he doesn't understanding
30:27
Speaker 7: that he has an alleged that this is actually hurting him.
30:30
Speaker 2: Many of the several many majority of the conservative justices
30:37
Speaker 2: seem to be signaling support for bost Why.
30:42
Speaker 7: That was my reading of the argument. And there is
30:44
Speaker 7: one pretty good argument on his side, which is, although
30:48
Speaker 7: it's not clear how it fits with traditional standing doctrine,
30:51
Speaker 7: which is it's good to get these challenges out of
30:54
Speaker 7: the way for the election. It's better to have this
30:57
Speaker 7: issue of whether or not late received that de ballast
31:00
Speaker 7: can be counted resolved a year before the election, since
31:04
Speaker 7: after the election when everyone might know that it could
31:07
Speaker 7: actually affect the outcome. So I think as a general rule,
31:10
Speaker 7: there's broad agreement that challenges to election laws ought to
31:14
Speaker 7: be resolved outside the context of a current election, and
31:18
Speaker 7: I think that's what they were largely reacting to.
31:21
Speaker 2: Several of the justices. I think the Chief Justice and
31:24
Speaker 2: Justice Kavanaugh were talking about how requiring candidates to show
31:30
Speaker 2: that a new voting rule created risks would put judges
31:34
Speaker 2: in the prediction business.
31:36
Speaker 7: Yeah. I mean, again, the state's argument is he hasn't
31:39
Speaker 7: shown that he's having a risk of harm. He's been
31:41
Speaker 7: elected and re elected overwhelmingly in his district many times.
31:45
Speaker 7: And the state was arguing, he's going to make some
31:47
Speaker 7: claim consistent with general principles of standing law, that this
31:51
Speaker 7: law creates a risk of laws for him, risk of harm.
31:54
Speaker 7: But as you say, the Chief Justice Kavanaugh was saying, well,
31:57
Speaker 7: that means that you're going to require judges to make
31:59
Speaker 7: a gain as as to whether he's a shoe in
32:02
Speaker 7: in which case he doesn't have standing, or he's a
32:05
Speaker 7: likely winner but there's a chance he might lose in
32:07
Speaker 7: therefore he has. It's dating and then even the question
32:10
Speaker 7: of well what about if you're bound to lose, if
32:13
Speaker 7: you're from a minor party, you're a party that always
32:16
Speaker 7: loses this district. Does that mean you can't see either
32:18
Speaker 7: because you can't share you're any worse off because you're
32:22
Speaker 7: you're going to go from five percent to four percent,
32:25
Speaker 7: or a converse that you're going to go from ninety
32:26
Speaker 7: percent eighty five percent. They were saying that the state's
32:30
Speaker 7: standard it basically invites judges to get into this kind
32:33
Speaker 7: of political predictions, which they shouldn't be doing.
32:36
Speaker 5: So.
32:36
Speaker 2: The liberal justices seemed skeptical of boss claims, and Justice
32:42
Speaker 2: Kagan said, I have a sense this whole suit's a
32:45
Speaker 2: little bit in search of a problem. They're perfectly easy
32:48
Speaker 2: ways for a party to say why a new rule
32:51
Speaker 2: is going to harm them in the electoral game, So
32:53
Speaker 2: let the party do it.
32:54
Speaker 7: That was herview. Herview was that in fact, parties have
32:57
Speaker 7: been ringing these cases, and it's unclear why the National
33:00
Speaker 7: Committee itself didn't bring the case or the Illinois Republican Committee.
33:03
Speaker 7: In some ways, the best argument for boss position is
33:06
Speaker 7: that it's a good idea to get these cases resolved early.
33:10
Speaker 7: Her response is that's fine, but you didn't need him
33:13
Speaker 7: to bring the suit. The Republican Party could have brought
33:15
Speaker 7: the suit, and the liberals, I think had some concern
33:19
Speaker 7: about how does this fit in with traditional standing doctrine.
33:23
Speaker 7: Kagan is mainly the least hostile. It seemed to me
33:26
Speaker 7: she was looking for a way to allow the case
33:29
Speaker 7: to find standing, although maybe not on the same terms
33:32
Speaker 7: as a Boss argument. She recognized the power of the
33:36
Speaker 7: argument that there should be pre election litigation of this,
33:39
Speaker 7: but she, like the other liberals, were skeptical didn't quite
33:42
Speaker 7: see how this fit into traditional standing rules.
33:46
Speaker 2: Is there a fear that ruling for bost would open
33:49
Speaker 2: the floodgates to challenges of all sorts of state election rules.
33:54
Speaker 7: That was the argument that the state raised that right,
33:57
Speaker 7: that this means unless there's a real standing, lest there's
34:00
Speaker 7: a real serious risk of injury, anybody could bring any
34:04
Speaker 7: lawsuit that this basically opens itself up to an effect
34:07
Speaker 7: open ended litigation. There's something to that. On the other hand,
34:10
Speaker 7: as thinking Roberts are taking some these suits are being
34:14
Speaker 7: brought anyway, and there's a lot to be said for
34:17
Speaker 7: the argument let's have the suit decided before the election,
34:20
Speaker 7: rather than in the heat of the election or after
34:23
Speaker 7: the election.
34:24
Speaker 2: So there were some unusual alliances here. The League of
34:27
Speaker 2: Women Voters and the ACLU, among others, filed a brief
34:32
Speaker 2: in support of boss right to bring this legal challenge.
34:37
Speaker 7: That's right, and it's on that theory. I suspect that
34:40
Speaker 7: they would be against his position on the merits about
34:44
Speaker 7: whether or not federal law prohibits accounting of late received
34:48
Speaker 7: mail in ballots, But I think they agree with the
34:50
Speaker 7: idea that it's good to get these questions resolved early.
34:54
Speaker 7: It's good to get these questions resolved before the votes
34:57
Speaker 7: have actually been cast.
34:59
Speaker 2: Trump has been vociferous about mail in balloting leading to fraud,
35:03
Speaker 2: et cetera. And there are several lawsuits brought by allies
35:08
Speaker 2: of Trump questioning the guidelines in different states around mail
35:12
Speaker 2: in ballots. Will this decision impact those efforts to stop
35:17
Speaker 2: the practice of states counting mail in ballots after election day?
35:21
Speaker 7: Assuming that Bust wins, it will move that issue one
35:26
Speaker 7: step forward to judicial resolution, although I believe there's already
35:30
Speaker 7: a case in which a lower court found that late counting. Again,
35:35
Speaker 7: it's post election day counting of ballots mailed in by
35:39
Speaker 7: election day. At least one lower court has said that
35:41
Speaker 7: that does violate the federal law setting a single national
35:45
Speaker 7: election day. Again, that's only relevant as to federal elections.
35:49
Speaker 7: So my guess is, one way or the other, we're
35:51
Speaker 7: going to have this issue for the Supreme Court very soon.
35:54
Speaker 7: I guess as that issue is going to be resolved,
35:57
Speaker 7: whether or not he wins this case.
35:59
Speaker 2: Thanks so much, rich That's Professor Richard Ruffald of Columbia
36:02
Speaker 2: Law School.
36:04
Speaker 3: And that's it for this edition of the Bloomberg Law Show.
36:06
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36:24
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