Latest / Bloomberg Law / Trump Can't Fire Fed's Cook Now & Oregon Sues Trump

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Trump Can't Fire Fed's Cook Now & Oregon Sues Trump · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:08
  Speaker 2: The Supreme Court has refused to allow President Trump to
• 0:12
  Speaker 2: immediately oust Federal Reserve Governor Lisa Cook over mortgage fraud
• 0:17
  Speaker 2: allegations she's denied. The order issued today with no dissents
• 0:22
  Speaker 2: means Cook can remain in her position at least until
• 0:26
  Speaker 2: the justice is rule and oral arguments in the case
• 0:29
  Speaker 2: aren't even scheduled until January. The Supreme Court has largely
• 0:34
  Speaker 2: sided with Trump this year in cases challenging his firings
• 0:38
  Speaker 2: of officials at different federal agencies, so today's order was rare.
• 0:44
  Speaker 2: Joining me is elliot Stein, Bloomberg Intelligence senior litigation analyst
• 0:49
  Speaker 2: Elliott Is this a big win for Cook?
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  Speaker 1: I would say it's a interim win for her because
• 0:56
  Speaker 1: it does allow her to stay in her position as
• 1:00
  Speaker 1: a Federal Reserve Board governor while the case continues to
• 1:04
  Speaker 1: proceed in the Supreme Court. But the Supreme Court didn't
• 1:08
  Speaker 1: really weigh in further than that, and it said that
• 1:12
  Speaker 1: it has deferred any ruin for now until after it
• 1:16
  Speaker 1: can hear oral argument in January of twenty twenty six,
• 1:21
  Speaker 1: so he will be serving in her current role until then,
• 1:25
  Speaker 1: at a minimum, and then we'll wait to see what
• 1:27
  Speaker 1: the justices say.
• 1:29
  Speaker 2: Beyond that, the Supreme Court has basically sided with Trump
• 1:32
  Speaker 2: this year in cases challenging his firing of officials at
• 1:37
  Speaker 2: different federal agencies, for example, the firing of the FTC commissioner,
• 1:42
  Speaker 2: the firing of the NLRB board member, and the firing
• 1:46
  Speaker 2: of the Merit Systems Protection Board member, and the Court
• 1:50
  Speaker 2: has allowed the removal of those officials as the litigation
• 1:53
  Speaker 2: plays out. So does this say the Supreme Court sees
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  Speaker 2: the FED differently.
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  Speaker 1: Yeah, absolutely, that's exactly right. We've seen so many cases,
• 2:03
  Speaker 1: including the ones that you mentioned, brought by commissioners of
• 2:06
  Speaker 1: other agencies a President Trump fired, they sued. Those cases
• 2:11
  Speaker 1: mostly went in the commissioner's favors in the lower courts,
• 2:15
  Speaker 1: and then when it got to the Supreme Court, the justices,
• 2:17
  Speaker 1: usually on either an administrative basis or on an emergency
• 2:23
  Speaker 1: stay application, essentially overruled the lower courts and allowed the
• 2:28
  Speaker 1: terminations to take place and take effect while the litigation
• 2:32
  Speaker 1: played out. This is very notable because at least the
• 2:35
  Speaker 1: cookcase really is different in that respect. First, you know,
• 2:39
  Speaker 1: Justice Roberts did not issue an administrative stay like you
• 2:43
  Speaker 1: did just a couple of weeks ago in the FTC
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  Speaker 1: case involving Rebecca Slaughter, and then he referred it to
• 2:49
  Speaker 1: all the justices, and the conservative majority on the Supreme
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  Speaker 1: Court didn't rule in President Trump's favor like they did
• 2:57
  Speaker 1: in some of the other cases, like the NLRB case
• 2:59
  Speaker 1: to Wilcox's case, in the Foil case, which was another
• 3:02
  Speaker 1: similar case. I think what's really notable about the Lisa
• 3:05
  Speaker 1: Cook CAAs is that the Supreme Court really is viewing
• 3:08
  Speaker 1: the Federal Reserve differently than it is other agencies. And
• 3:11
  Speaker 1: we already knew that from the Wilcox decision in May,
• 3:15
  Speaker 1: where the Supreme Court said that the Federal Reserve is unique,
• 3:21
  Speaker 1: it has a unique structure, it has a unique history,
• 3:23
  Speaker 1: it's really quasi private according to the justices, and therefore
• 3:27
  Speaker 1: it's not like these other independent agencies, which the conservative
• 3:31
  Speaker 1: justices seem to view as more clearly falling under the
• 3:34
  Speaker 1: executive branch.
• 3:36
  Speaker 2: And there was no dissent. So now the Court is
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  Speaker 2: going to hear arguments in the case challenging Trump's firing
• 3:43
  Speaker 2: of FTC Commission Member Rebecca Slaughter. As you mentioned, that's
• 3:48
  Speaker 2: in early December. Right, does the schedule for the cookcase
• 3:53
  Speaker 2: suggest that the Justices want to look at the FTC
• 3:58
  Speaker 2: case before turning to the FED.
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  Speaker 1: Yeah, I think that's a fair reading. I mean, I
• 4:05
  Speaker 1: think the issues are little distinct, right, I think the
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  Speaker 1: FTC case really is going to concern whether four cause
• 4:14
  Speaker 1: removal restrictions are constitutional or not, and whether the Humphreys
• 4:19
  Speaker 1: Executor Supreme Court case from nineteen thirty five, which established
• 4:22
  Speaker 1: that they are constitutional, should be overruled or not. That's
• 4:26
  Speaker 1: really what's that issue in that case. This case, at least,
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  Speaker 1: the Cook case almost presumes that the four cause removal
• 4:32
  Speaker 1: restriction is constitutional, and the issue is what does cause mean?
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  Speaker 1: What does it require? And you know, should there be noticed,
• 4:41
  Speaker 1: an opportunity to be heard, and who should even make
• 4:45
  Speaker 1: that determination as to whether the four cause standard has
• 4:49
  Speaker 1: been met?
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  Speaker 2: And the Trump administration here, the Solicitor General said that
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  Speaker 2: Trump had reason to fire Cook for cause. He also
• 4:58
  Speaker 2: said the courts don't have the discription to review the
• 5:01
  Speaker 2: president's determination.
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  Speaker 1: Right. That's the government's argument that a the fore cost
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  Speaker 1: standard is very broad. All requires is something beyond a
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  Speaker 1: policy disagreement, and that it's really up to the president
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  Speaker 1: to determine whether that standard has been met. You know,
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  Speaker 1: at least the Cook obviously takes a different view and says, well,
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  Speaker 1: if it's only up to the president to determine whether
• 5:24
  Speaker 1: the forecast standard has been met, that essentially renders the
• 5:27
  Speaker 1: standard meaningless because you've turned it almost into an at
• 5:31
  Speaker 1: will standard, which should not be your standard at all.
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  Speaker 2: For those few people who may not have heard about
• 5:38
  Speaker 2: these mortgage investigations, Trump is accused Cook of mortgage fraud,
• 5:44
  Speaker 2: which she denies. She has not been charged with a
• 5:47
  Speaker 2: crime yet, and Bloomberg News has previously reported that loan
• 5:52
  Speaker 2: documents for Cook's Georgia home appear to contradict the claims
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  Speaker 2: made by the FAHFA share build. So this is at
• 6:02
  Speaker 2: a very early stage. How did the federal judge who
• 6:06
  Speaker 2: reviewed this look at it?
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  Speaker 1: I think you're exactly right. This is all at a
• 6:10
  Speaker 1: very early stage, and so they're really trying to determine
• 6:13
  Speaker 1: what the law even requires before they get into the
• 6:16
  Speaker 1: facts of the case. The trial court judge essentially held
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  Speaker 1: that four cause can't solely be based on something that
• 6:26
  Speaker 1: happened before the person was appointed to her current role.
• 6:31
  Speaker 1: If it is something that happened before she was appointed,
• 6:34
  Speaker 1: it has to at least tie into her ability to
• 6:37
  Speaker 1: serve in that role, and that hasn't happened here, according
• 6:41
  Speaker 1: to the Childcourt judge, and the trial court judge also
• 6:43
  Speaker 1: said that there has to be some sort of due
• 6:46
  Speaker 1: process according to the Constitution, and that that wasn't satisfied
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  Speaker 1: here either. The Appeals Court ruled solely on the due
• 6:53
  Speaker 1: process argument and didn't even get to what four cause requires.
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  Speaker 1: And so, you know, the Supreme Court, we don't know
• 7:02
  Speaker 1: exactly how far they're going to go. We don't know
• 7:04
  Speaker 1: if they're going to rule on both those issues. I'm
• 7:07
  Speaker 1: sure they're going to explore both those issues, but they may,
• 7:10
  Speaker 1: like the Appeals Court wind not rulin, just on you know,
• 7:13
  Speaker 1: whether due process is required, and they may say, you know,
• 7:16
  Speaker 1: if they agree with the Appeals Court, they may say
• 7:18
  Speaker 1: due process was not satisfied here, and you know, they'll
• 7:22
  Speaker 1: send it back to the lower courts, or they'll articulate
• 7:26
  Speaker 1: what due process actually does require and then send it
• 7:29
  Speaker 1: back to the lower courts to determine whether that standard
• 7:33
  Speaker 1: was met here or not. So it is early, as
• 7:35
  Speaker 1: you say, After the Supreme Court rules, most likely it
• 7:38
  Speaker 1: will go back down to the lower courts.
• 7:40
  Speaker 2: And did the Trump administration claim that there was notice
• 7:46
  Speaker 2: to Cook because of social media posts of the president.
• 7:50
  Speaker 1: Yeah. Their initial argument is that you notice, an opportunity
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  Speaker 1: to be heard isn't even required here because there's no
• 7:57
  Speaker 1: property interest in a public interest role like the Federal
• 8:01
  Speaker 1: Reserve Board governor seat. But their argument after that is, okay, well,
• 8:06
  Speaker 1: if notice is required, it was satisfied here because President
• 8:10
  Speaker 1: Trump's social media posts gave her ample notice, and she
• 8:13
  Speaker 1: had ample notice to respond to those posts. And she
• 8:17
  Speaker 1: hasn't really substantively articulated why the allegations are wrong. But
• 8:23
  Speaker 1: you know, I think her approach is a sensible one
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  Speaker 1: in the sense that you know, she's saying, look, the
• 8:29
  Speaker 1: law requires more than that at a minimum, And so
• 8:33
  Speaker 1: let's argue about what the law requires before we even
• 8:35
  Speaker 1: get into the factor.
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  Speaker 2: And in this case, you had a group of former
• 8:40
  Speaker 2: Fed and Treasury officials who served under Republican and Democratic
• 8:44
  Speaker 2: administrations writing a Friend of the Court brief that urged
• 8:48
  Speaker 2: the justices to leave Cook in place.
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  Speaker 1: Right, These are amicus briefs, like you said, from former
• 8:56
  Speaker 1: Federal Reserve Board governors appointed by presidents of both parties,
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  Speaker 1: as well as Treasury Secretary is appointed by presidents of
• 9:03
  Speaker 1: both parties, arguing why Federal Reserve independence is so important,
• 9:09
  Speaker 1: and they just point to a more stable monetary policy
• 9:13
  Speaker 1: in countries where you do have Federal Reserve Board independence.
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  Speaker 1: This again goes to the point which I think the
• 9:18
  Speaker 1: Supreme Court already picked up on previously in their Wilcox
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  Speaker 1: decision in May as why the Federal Reserve is different
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  Speaker 1: from other independent agencies that more clearly fall under the executive.
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  Speaker 2: France and Elliott, you are giving Kook a sixty chance
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  Speaker 2: to prevail at.
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  Speaker 1: The court exactly. I think she's a slight favorite based
• 9:39
  Speaker 1: on what we've seen the Supreme Court do in the
• 9:42
  Speaker 1: Wilcox decision and what we sort of have seen it
• 9:44
  Speaker 1: do more recently in Justice Roberts not issuing an administrative
• 9:48
  Speaker 1: stay and again in all the Justices not doing what
• 9:52
  Speaker 1: they did in these other cases where they allowed the
• 9:55
  Speaker 1: termination is to take effect while the case plays out.
• 9:58
  Speaker 1: But it is a close case, a out of unsettled
• 10:00
  Speaker 1: issues like the ones we've talked about. What is caused?
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  Speaker 1: What does they require? Is there a do process requirement?
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  Speaker 1: What kind of notice is required? And who should make
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  Speaker 1: that determination.
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  Speaker 2: It's a high stakes case and the oral arguments should
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  Speaker 2: be interesting. Thanks so much, Elliott. That's Bloomberg Intelligence senior
• 10:19
  Speaker 2: litigation analyst Elliott Stein coming up next on the Bloomberg
• 10:23
  Speaker 2: Law Show. President Trump has already sent troops into Los
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  Speaker 2: Angeles and Chicago over the objections of the governors of
• 10:32
  Speaker 2: California and Illinois. Oregon isn't waiting for the deployment of troops.
• 10:38
  Speaker 2: It's already suing Trump over what it says is an
• 10:41
  Speaker 2: unlawful federalization of the National Guard. I'm June Grosso. When
• 10:45
  Speaker 2: you're listening to Bloomberg.
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  Speaker 3: There is no insurrection, there is no threat to national security,
• 10:53
  Speaker 3: and there is no need for military troops in our
• 10:56
  Speaker 3: major city.
• 10:57
  Speaker 2: The next city to see the national art on its
• 11:00
  Speaker 2: streets will be Portland, Oregon. In a post on truth
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  Speaker 2: Social on Saturday, President Trump said he was authorizing troops
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  Speaker 2: to quote protect war ravaged Portland and any of our
• 11:13
  Speaker 2: ice facilities under siege from attack by Antifa and other
• 11:18
  Speaker 2: domestic terrorists. But the state isn't waiting for the deployment
• 11:22
  Speaker 2: to push back, It's already suing Trump over what it
• 11:26
  Speaker 2: says is an unlawful federalization of the National Guard. Here's
• 11:31
  Speaker 2: Governor Tina Kotek.
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  Speaker 3: Any deployment would be an abuse of power and a
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  Speaker 3: misuse of federal troops.
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  Speaker 2: My guest is Leon Fresco, a partner at Holland and
• 11:39
  Speaker 2: Knight and the former head of the Office of Immigration
• 11:42
  Speaker 2: Litigation in the Obama administration. Leon, is this similar to
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  Speaker 2: what happened in Los Angeles and Chicago where Trump deployed
• 11:51
  Speaker 2: troops over the objection of those cities mayors and the
• 11:56
  Speaker 2: state's governors.
• 11:58
  Speaker 4: Well, it's similar in one respect, and it's different in
• 12:01
  Speaker 4: another respect. The Los Angeles operations first started off as
• 12:07
  Speaker 4: much broader National Guard operations basically trying to keep the
• 12:12
  Speaker 4: peace in Los Angeles due to conflagrations that had happened
• 12:16
  Speaker 4: as a result of ice enforcement that various home depot
• 12:20
  Speaker 4: and other type of locations. Whereas here in Portland there
• 12:25
  Speaker 4: is that type of rhetoric, but at least the discussion
• 12:28
  Speaker 4: of it is basically only about sending two hundred Oregon
• 12:33
  Speaker 4: National Guard troops to protect federal facilities, and so the
• 12:38
  Speaker 4: federal facility protection part was actually viewed as lawful in
• 12:43
  Speaker 4: Los Angeles when that occurred. What was not viewed as
• 12:46
  Speaker 4: lawful by the federal courts, there was the larger protection
• 12:51
  Speaker 4: that didn't involve the protection of federal facilities. And so
• 12:55
  Speaker 4: even though there's not a lawsuits that's been filed by
• 12:58
  Speaker 4: the Oregon Attorney General to block the federalization of the
• 13:02
  Speaker 4: National Guard, at the end of the day, the ICE facilities,
• 13:06
  Speaker 4: at least according to the Los Angeles order, appear to
• 13:09
  Speaker 4: be something that the National Guard can be deployed to
• 13:13
  Speaker 4: protect because it is a federal facility. But we'll wait
• 13:17
  Speaker 4: and see where this goes because there's other issues of play. Also.
• 13:21
  Speaker 4: The City of Portland is claiming that ICE violated its
• 13:24
  Speaker 4: land use agreement with the City of Portland by detaining
• 13:28
  Speaker 4: individuals for much longer than they were supposed to be detained,
• 13:32
  Speaker 4: and other issues with regard to how far these protests
• 13:37
  Speaker 4: are being blocked by the National Guard agents. Are they
• 13:40
  Speaker 4: just protecting the facilities or are they going further out
• 13:43
  Speaker 4: than that, And so all of those things will need
• 13:45
  Speaker 4: to be resolved in a federal court proceeding later this week.
• 13:50
  Speaker 4: The preliminary injunction hearing is supposed to be determined later
• 13:54
  Speaker 4: this week, but for now, we're going to basically see
• 13:56
  Speaker 4: can the Guard be deployed at all. Most likely will
• 14:00
  Speaker 4: be yes, to protect the federal facility, but then there
• 14:02
  Speaker 4: will be questions about, again, is Ice violating the terms
• 14:07
  Speaker 4: of its land use agreement with Oregon? And are these
• 14:09
  Speaker 4: federal troops doing more than just protecting the federal facility?
• 14:13
  Speaker 2: So do you think that Oregon officials jump the gun
• 14:16
  Speaker 2: by filing a lawsuit now instead of waiting to see
• 14:22
  Speaker 2: how the troops are deployed, whether they just guard the
• 14:26
  Speaker 2: ICE facilities or whether they engage in policing.
• 14:32
  Speaker 4: Correct, you would normally want to build a better record
• 14:34
  Speaker 4: in a situation like this, But I do think that
• 14:38
  Speaker 4: at this stage of things, there's a lot of politics involved,
• 14:44
  Speaker 4: and so people just want to get these lawsuits in
• 14:46
  Speaker 4: and then they'll sort of let the facts come as
• 14:49
  Speaker 4: as they may, which is not normally how you would
• 14:51
  Speaker 4: do a lawsuit. But in these days where everything is politics,
• 14:55
  Speaker 4: you know, there's all of these questions. Was the National
• 15:00
  Speaker 4: Guard mobilization motivated by politics? Was the lawsuit motivated by politics?
• 15:05
  Speaker 4: And so there's politics on all sides here, and we'll
• 15:10
  Speaker 4: just have to wait and see what the court, who
• 15:12
  Speaker 4: is not supposed to be a political actor, does about
• 15:15
  Speaker 4: all of these various claims. That are being made. And
• 15:18
  Speaker 4: also one further complicating fact generally is that in civil
• 15:24
  Speaker 4: litigation right now, in cases involving the government, unless there's
• 15:28
  Speaker 4: some threat to life or liberty, those are being continued
• 15:33
  Speaker 4: right now because of the government shutdown, and so unclear
• 15:37
  Speaker 4: if these hearings will go forward if there is a
• 15:40
  Speaker 4: shutdown that continues for some period of time.
• 15:43
  Speaker 5: To have Illinois or Chicago sued over the deployment, they
• 15:48
  Speaker 5: sued with regard to the way that ICE is enforcing,
• 15:54
  Speaker 5: both at the immigration courts and with regard to grant funding,
• 15:58
  Speaker 5: but not with regard to the National Guard.
• 16:01
  Speaker 2: So many lawsuits, very difficult to keep drag of them,
• 16:04
  Speaker 2: but you do.
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  Speaker 4: Yes.
• 16:05
  Speaker 2: So now you had a judge, a Reagan appointed judge
• 16:09
  Speaker 2: with forty years experience on the bench, right a blistering
• 16:14
  Speaker 2: decision finding that the Trump administration unconstitutionally targeted non citizens
• 16:21
  Speaker 2: over their speech about the guys of war. Tell us
• 16:25
  Speaker 2: what Judge William Young in Boston, what he found.
• 16:28
  Speaker 4: Sure, So the case is called the American Association of
• 16:31
  Speaker 4: University Professors versus Rubio, and it's a question about the
• 16:36
  Speaker 4: policies that the administration was putting in place with regard
• 16:42
  Speaker 4: to saying basically, if you support hamas in your rhetoric
• 16:47
  Speaker 4: on social media, et cetera, that you would, for foreign
• 16:51
  Speaker 4: policy violation reasons, be deportable from the United States if
• 16:55
  Speaker 4: you were not a citizen. And so the people who
• 16:59
  Speaker 4: sued in that case saying this was ideological deportation that
• 17:05
  Speaker 4: violated the First Amendment. So that was their claim, and
• 17:09
  Speaker 4: the Trump administration was saying that the deportation was not
• 17:13
  Speaker 4: based on political speech or pro Palestinian views, but really
• 17:18
  Speaker 4: at the end of the day, was based on support
• 17:21
  Speaker 4: for terrorist organizations aka AMAS and national security concerns, meaning
• 17:27
  Speaker 4: that if people were sort of riling up tensions in
• 17:30
  Speaker 4: the United States, who are foreign nationals, so they're not
• 17:33
  Speaker 4: US citizens, they're foreign nationals engaging in dialogue that's meant
• 17:37
  Speaker 4: to rile up tensions, Why is that in the national
• 17:40
  Speaker 4: interests of the United States better that you know, people
• 17:43
  Speaker 4: like that not be here so that they're less quote
• 17:46
  Speaker 4: unquote tension being riled up. And so this is the
• 17:49
  Speaker 4: sort of the debate, and the issue is who wins
• 17:53
  Speaker 4: in this situation? Does the First Amendment win? You know,
• 17:57
  Speaker 4: as long as you're not doing any actual violence, you're
• 18:00
  Speaker 4: just advocating on behalf of the Palestinians. And let's say,
• 18:03
  Speaker 4: even if it's a pro Palestinian solution to the conflict,
• 18:07
  Speaker 4: is that protected or can the administration, based on the
• 18:11
  Speaker 4: broad authority given to it by the Congressional Statute, say, look,
• 18:16
  Speaker 4: the statute say when the Secretary of State finds any
• 18:20
  Speaker 4: conduct bad for the foreign policy interests of the United States,
• 18:24
  Speaker 4: the Secretary of State can order a deportation. So who
• 18:27
  Speaker 4: wins in that fight? And what the Court said was
• 18:32
  Speaker 4: that this was the First Amendment, plain and simple discrimination.
• 18:37
  Speaker 4: It was designed to intentionally chill protected speech, to create
• 18:42
  Speaker 4: the environment of fear regarding pro Palestinian views, so that
• 18:48
  Speaker 4: people wouldn't voice the opinions because they knew they could
• 18:50
  Speaker 4: get deported if they voice these opinions. And so if
• 18:53
  Speaker 4: the Court said that that was unacceptable and that what
• 18:57
  Speaker 4: needed to happen moving forward is because it would violate
• 19:01
  Speaker 4: not just the First Amendment but the Administrative Procedure Act,
• 19:04
  Speaker 4: is that there needed to be clear guidelines on whatever
• 19:08
  Speaker 4: is it isn't acceptable that that would be what could
• 19:12
  Speaker 4: they be potentially be implemented in a future case. And
• 19:15
  Speaker 4: of course those clear guidelines could be challenged. But this
• 19:18
  Speaker 4: idea that the Secretary of State could just without any warning,
• 19:22
  Speaker 4: find speech not acceptable and revoke your visa without any
• 19:26
  Speaker 4: clear guidance he viewed as unacceptable and violatives of the
• 19:30
  Speaker 4: First Amendment. And then there was a lot of, of course,
• 19:34
  Speaker 4: very high minded rhetoric about the First Amendment and democracy
• 19:38
  Speaker 4: and then protection of rights, etc. But at the end,
• 19:41
  Speaker 4: this is the basic framing of the opinion. And so now,
• 19:44
  Speaker 4: of course it will go up to the First Circuit
• 19:47
  Speaker 4: and then the Supreme Court to try to figure out
• 19:49
  Speaker 4: what's actually going to win in this battle between the
• 19:53
  Speaker 4: First Amendment and the rights of people to speak in
• 19:55
  Speaker 4: America about views, whether their views that are popular or
• 19:59
  Speaker 4: not popular, as long as they're not actually doing anything
• 20:03
  Speaker 4: else other than just speech versus the Secretary of States
• 20:07
  Speaker 4: rights under the Congressional laws to if you read the
• 20:11
  Speaker 4: text of those statutes, pretty much order anyone deported that
• 20:15
  Speaker 4: he thinks he should for the purposes of protecting US
• 20:18
  Speaker 4: foreign policy.
• 20:19
  Speaker 2: Yeah, so, how much of a setback is it for
• 20:22
  Speaker 2: the administration to exclaim that the Secretary of State has
• 20:26
  Speaker 2: the authority to revoke visas and green cards under this
• 20:31
  Speaker 2: rarely used provision.
• 20:32
  Speaker 4: It will be a major major problem if the higher
• 20:38
  Speaker 4: level courts say that that statute has written is too
• 20:41
  Speaker 4: vague to be constitutional, or that the way it's being
• 20:46
  Speaker 4: applied is nevertheless too vague. Meaning perhaps if you put
• 20:50
  Speaker 4: some policies with regard to a specific form of conduct,
• 20:54
  Speaker 4: then maybe you can apply it, but just without warning,
• 20:57
  Speaker 4: sort of having this catch all. The U don't know
• 21:00
  Speaker 4: if you're going to get caught in the catch all.
• 21:02
  Speaker 4: That might be too vague. So I think this has
• 21:04
  Speaker 4: the potential to be a dramatic setback for the Trump
• 21:08
  Speaker 4: administration and the Secretary of State. But we'll need to
• 21:13
  Speaker 4: see some higher courts doing this at the end of
• 21:15
  Speaker 4: the day, because just the district court decision alone isn't
• 21:19
  Speaker 4: going to ultimately change the outcome of these cases. So
• 21:24
  Speaker 4: once these cases get appealed and get to the Supreme Court,
• 21:27
  Speaker 4: that's where we're going to wait and see. But if
• 21:29
  Speaker 4: this ruling is maintained, it would be a dramatic alteration
• 21:33
  Speaker 4: to the policy that the Trump administration was trying to
• 21:37
  Speaker 4: put in place, which was to say, if you're not
• 21:40
  Speaker 4: careful with you know, the things you're saying in the
• 21:44
  Speaker 4: United States while you're here, and you're not a citizen,
• 21:47
  Speaker 4: you could subject yourself to deportation. So better to just
• 21:50
  Speaker 4: be here and be like a polite guest in someone's
• 21:53
  Speaker 4: home where you don't say anything about about anything controversial.
• 21:57
  Speaker 4: When you're visiting someone's home, you just kind of have
• 21:59
  Speaker 4: your cake and your wine and then you go.
• 22:03
  Speaker 5: Take it whine.
• 22:04
  Speaker 4: I like that combination, Yes, exactly. You just say, how's
• 22:07
  Speaker 4: the weather outside, it's any degrees, it's lovely, that kind
• 22:11
  Speaker 4: of thing, And that's pretty much the sense of what
• 22:14
  Speaker 4: you should be doing here if you're not a US citizen.
• 22:17
  Speaker 2: And in this one hundred and sixty one page scathing ruling,
• 22:21
  Speaker 2: the judge directly and sharply criticized President Trump and his
• 22:27
  Speaker 2: immigration policies, saying they were intended to strike fear into
• 22:32
  Speaker 2: non citizens and chill freedom of speech.
• 22:36
  Speaker 4: Look, the judge was very unhappy with the Trump administration.
• 22:41
  Speaker 4: The judge was very unhappy with the arguments that were
• 22:43
  Speaker 4: being made about non citizens not having the same First
• 22:47
  Speaker 4: Amendment rights as US citizens, which, by the way, is
• 22:50
  Speaker 4: a undecided issue in federal law. I would not say
• 22:54
  Speaker 4: that that's a decided issue, And in fact, the last
• 22:58
  Speaker 4: real decision on that, which was a nineteen fifty two
• 23:01
  Speaker 4: case called Heresiatis versus Shaughnessy, which had to do with
• 23:04
  Speaker 4: membership in the Communist Party, went against the First Amendment
• 23:09
  Speaker 4: rights of foreign nationals. And so from the standpoint of
• 23:13
  Speaker 4: thinking that it's a slam dunk that foreign nationals have
• 23:16
  Speaker 4: the same First Amendment rights as US citizens, that's not
• 23:20
  Speaker 4: exactly true, and we'll need to see how the court
• 23:22
  Speaker 4: deals with it. But nevertheless, this judge just thought that
• 23:26
  Speaker 4: this was being implemented in a way that was just
• 23:30
  Speaker 4: unconscionable to the court. And so the Court definitely, in
• 23:33
  Speaker 4: those one hundred and sixty pages, decided to express itself
• 23:37
  Speaker 4: and its frustration very openly and was putting, you know,
• 23:41
  Speaker 4: notes in that the Court had received in the past
• 23:44
  Speaker 4: and writing notes back to people. It was very personal, obviously,
• 23:48
  Speaker 4: decision for this judge, and so we'll wait to see
• 23:52
  Speaker 4: if the appellate courts think that makes it more or
• 23:55
  Speaker 4: less persuasive moving forward.
• 23:58
  Speaker 2: And I've never seen anything quite like this in a
• 24:00
  Speaker 2: judge's opinion. At the start of the judge's opinion, before
• 24:05
  Speaker 2: the title of the case, it began with words taken
• 24:09
  Speaker 2: from an anonymous postcard threatening the judge that had been
• 24:13
  Speaker 2: sent to him in June, and it was a duplication
• 24:15
  Speaker 2: of the note in this block printing quote Trump has
• 24:20
  Speaker 2: pardons and tanks, what do you have? And then the
• 24:23
  Speaker 2: judge typed his response beneath it, dear mister or miss
• 24:28
  Speaker 2: anonymous alone, I have nothing but my sense of duty.
• 24:32
  Speaker 2: Together we the people of the United States, you and
• 24:35
  Speaker 2: me have our magnificent Constitution. Here's how that works out
• 24:40
  Speaker 2: in a specific case. And then the opinion followed. Does
• 24:44
  Speaker 2: that change the way in a pellet court will assess
• 24:47
  Speaker 2: this decision?
• 24:49
  Speaker 4: I think the problem is this, all of the federal
• 24:52
  Speaker 4: judges grow up reading these great decisions written by other judges,
• 24:58
  Speaker 4: where you know, you have a learned or a judge
• 25:00
  Speaker 4: posner who puts some rhetorical flourishes in cases. And people said,
• 25:06
  Speaker 4: they those are the famous judges, and they make their mark.
• 25:09
  Speaker 4: And so every judge wants to add rhetorical flourishes to
• 25:13
  Speaker 4: their case. And you know, sometimes the judges are very upset.
• 25:17
  Speaker 4: This judge is clearly very upset here. I think, personally
• 25:21
  Speaker 4: not that I want to be a judge anytime soon,
• 25:23
  Speaker 4: but if I were a judge, I think the most
• 25:25
  Speaker 4: effective judges are the ones that do not make it
• 25:28
  Speaker 4: look like in any way they're taking any of this personally,
• 25:32
  Speaker 4: and they're just basically printing out a decision the same
• 25:35
  Speaker 4: way chat GPT would do it, or you know, Microsoft
• 25:39
  Speaker 4: co pilot or something very impersonal, but just to lay
• 25:42
  Speaker 4: out the fact. And when somebody reads those in an
• 25:46
  Speaker 4: appellate court, they say, wow, that's a very thoughtful judge.
• 25:49
  Speaker 4: Clearly this judge was just trying to get it right.
• 25:52
  Speaker 4: Those decisions tend to have much more difference given to
• 25:56
  Speaker 4: them than the ones where there are these larger rhetorical fishes.
• 26:01
  Speaker 4: Although when you survive them, if you get those decisions upheld,
• 26:06
  Speaker 4: then those do become the famous decisions of all time
• 26:09
  Speaker 4: that get cited to students, that people read them. So
• 26:12
  Speaker 4: it kind of is a gamble. But this is why
• 26:15
  Speaker 4: those types of decisions get issued.
• 26:18
  Speaker 2: So we'll keep watch and see what the First Circuit
• 26:21
  Speaker 2: thinks of this opinion by Judge Young. Stay with me,
• 26:25
  Speaker 2: Leon coming up next. After a four year freeze, dreamers
• 26:29
  Speaker 2: will be able to submit DACA applications again. I'm June
• 26:34
  Speaker 2: Grosso and you're listening to Bloomberg. About half a million
• 26:38
  Speaker 2: so called dreamers live and work in the United States,
• 26:42
  Speaker 2: without fear of deportation. That's because of the Deferred Action
• 26:47
  Speaker 2: for Childhood Arrivals Program, or DACA, first launched in twenty twelve.
• 26:52
  Speaker 2: Data offers protections from deportation and work eligibility to immigrants
• 26:57
  Speaker 2: known as dreamers who arrived in the US as children
• 27:00
  Speaker 2: and we're no older than thirty when it was set up.
• 27:04
  Speaker 2: Legal battles over the Obama era program have stretched back
• 27:08
  Speaker 2: to the first Trump administration's attempt to end the protections.
• 27:12
  Speaker 2: DOCA has been closed to new applicants since twenty twenty
• 27:16
  Speaker 2: one while litigation played out, but now, in order to
• 27:20
  Speaker 2: comply with the court order, federal immigration officials have revealed
• 27:24
  Speaker 2: plans to reopen the DOCA program to new applicants. I've
• 27:28
  Speaker 2: been talking immigration law attorney Leon Fresco of Honda Knight. Leon,
• 27:33
  Speaker 2: tell us how we got here.
• 27:35
  Speaker 4: So here's what happened. So DOCA has been under a
• 27:38
  Speaker 4: nationwide injunction because of a lawsuit filed by the State
• 27:41
  Speaker 4: of Texas in the US District Court in Brownsville. And
• 27:44
  Speaker 4: so the idea was we wouldn't ever get back to
• 27:47
  Speaker 4: DOCA ever again until the Supreme Court finally was going
• 27:50
  Speaker 4: to decide once and for all, is DACA legal or not.
• 27:53
  Speaker 4: But in the birthright citizenship case, which we've also talked about,
• 27:58
  Speaker 4: the Supreme Court, although it didn't decide the birthright citizenship issue,
• 28:02
  Speaker 4: that issue is going to come up now. The Court
• 28:05
  Speaker 4: did say, you can't have a nationwide injunction. Well, guess
• 28:09
  Speaker 4: what happened the State of Texas in the case of
• 28:12
  Speaker 4: Texas versus the administration now Trump, but before Biden that
• 28:18
  Speaker 4: the state of Texas had a nationwide injunction against DAKA. Well,
• 28:22
  Speaker 4: you can't have a nation wide injunction. And the story here,
• 28:25
  Speaker 4: So the US government has agreed you can't have a
• 28:27
  Speaker 4: nationwide injunction. The Texas Court cannot have a nation wide injunction.
• 28:32
  Speaker 4: There's going to be a hearing again later this week
• 28:34
  Speaker 4: depending on the shutdown. So if the court goes forward
• 28:37
  Speaker 4: with this hearing, even the federal government has said that
• 28:40
  Speaker 4: the injunction can only basically apply to Texas, which means
• 28:44
  Speaker 4: for the other forty nine states, there will have to
• 28:47
  Speaker 4: be a process that reopens up sooner rather than later
• 28:50
  Speaker 4: where foreign nationals who are eligible for DAKA can now
• 28:54
  Speaker 4: begin to ask for DAKA again. What will be very
• 28:57
  Speaker 4: interesting to see is how many people actually do come
• 29:00
  Speaker 4: forward knowing that if DACA is invalidated, then they become
• 29:05
  Speaker 4: sitting ducks quote unquote, in the sense that the administration
• 29:09
  Speaker 4: would say, oh, well, thank you for applying for DACA.
• 29:12
  Speaker 4: The court has viewed this to be illegal, but thank
• 29:14
  Speaker 4: you for letting us know where you live and where
• 29:17
  Speaker 4: you are, and so now you're in deportation proceeding. So
• 29:21
  Speaker 4: that's the risk people will have to take. But by
• 29:24
  Speaker 4: the same token, if people get protected by DACA, and
• 29:28
  Speaker 4: if the Trump administration doesn't want to eliminate DACA, then
• 29:31
  Speaker 4: presumably they might actually end up being here legally. So
• 29:35
  Speaker 4: we'll have to wait and see. You have not actually
• 29:37
  Speaker 4: heard a ton of rhetoric from the Trump administration talking
• 29:42
  Speaker 4: about deporting people who are in the DACA program. You've
• 29:46
  Speaker 4: definitely heard it about the people who came during the
• 29:49
  Speaker 4: Biden administration. But remember that anyone who is on DAKA
• 29:54
  Speaker 4: was someone who was here since at least two thousand
• 29:57
  Speaker 4: and seven. So from that endpoint, we're talking about almost
• 30:01
  Speaker 4: twenty years that these people have been in the United States,
• 30:04
  Speaker 4: and they came as kids. You have not actually heard
• 30:07
  Speaker 4: the Trump administration talk about deporting these individuals, and so
• 30:11
  Speaker 4: it is possible that this program, it is determined to
• 30:15
  Speaker 4: be legal, might not be eliminated by the Trump administration.
• 30:18
  Speaker 4: Will have to wait and see.
• 30:20
  Speaker 2: But the first Trump administration did try to eliminate DACA, right.
• 30:24
  Speaker 4: Correct, They did try to eliminate DACA, and the Roberts
• 30:27
  Speaker 4: Court said at that time that the manner in which
• 30:30
  Speaker 4: they tried to do it was unlawful. But this court,
• 30:34
  Speaker 4: this Trump administration has basically been letting the court cases
• 30:40
  Speaker 4: travel as such. And while it definitely hasn't done anything
• 30:44
  Speaker 4: to help the DOCA recipients, it hasn't tried to scuttle
• 30:50
  Speaker 4: them in the kinds of ways that you might think
• 30:54
  Speaker 4: it might try to do in terms of individual revocations
• 30:58
  Speaker 4: or going to people's houses or things of this nature.
• 31:01
  Speaker 4: So we'll just have to wait and see. I'm not
• 31:02
  Speaker 4: saying that there couldn't be an order coming anytime that says, look,
• 31:07
  Speaker 4: we've changed our mind on DACA and we want it
• 31:09
  Speaker 4: all gone. But at this point, what they said is
• 31:13
  Speaker 4: the injunction should be limited to just Texas, and we
• 31:17
  Speaker 4: understand we're going to need to reprocess people's daca's cases again,
• 31:22
  Speaker 4: and so we'll have to wait and see what happened
• 31:24
  Speaker 4: from there.
• 31:25
  Speaker 2: So at the end of June, there were more than
• 31:28
  Speaker 2: five hundred and twenty five thousand people enrolled in DACA,
• 31:32
  Speaker 2: nearly eighty eight thousand of them live in Texas. So
• 31:36
  Speaker 2: Texas dreamers are not covered by this, so they're going
• 31:41
  Speaker 2: to have less rights than dreamers in other parts of
• 31:44
  Speaker 2: the country. How does that make sense?
• 31:47
  Speaker 4: Correct? I mean that will be a problem, but that
• 31:49
  Speaker 4: actually has happened a lot in immigration law. So for instance,
• 31:53
  Speaker 4: there are decisions to this day where if you live
• 31:56
  Speaker 4: in the Ninth Circuit, the law on asylum will be
• 32:00
  Speaker 4: better for you than if you live in the Fifth Circuit.
• 32:02
  Speaker 4: So that does exist in these contexts until the Supreme
• 32:05
  Speaker 4: Court harmonizes something nationwide, which sometimes they do and sometimes
• 32:10
  Speaker 4: they don't do. Never is it usually this disparate in
• 32:14
  Speaker 4: the sense that you can actually qualify for a document
• 32:18
  Speaker 4: in one state and you cannot qualify for a document
• 32:21
  Speaker 4: in another state. That's a very rare scenario that's happening
• 32:24
  Speaker 4: now because of the nationwide injunction issue. But what's interesting
• 32:28
  Speaker 4: is the way addresses work for the purposes of immigration
• 32:33
  Speaker 4: forms is you're not tied to Texas for the rest
• 32:37
  Speaker 4: of your life. If you legitimately move and you occupy
• 32:41
  Speaker 4: a residence in another state, as opposed to, you know,
• 32:45
  Speaker 4: actually lying about your address, you can't do that. You
• 32:48
  Speaker 4: cannot lie about your address. But if you were to
• 32:50
  Speaker 4: move to California or wherever, then you might actually be
• 32:55
  Speaker 4: eligible for those DOCA documents even though you were originally
• 32:59
  Speaker 4: in tech. So people will have decisions to make there
• 33:02
  Speaker 4: as well.
• 33:03
  Speaker 2: So, now this is the oddest deportation case I've heard of.
• 33:10
  Speaker 2: I'm sure you've heard of ones that are even more unique.
• 33:14
  Speaker 2: But the Des Moines School superintendent Ian Roberts is resigning
• 33:20
  Speaker 2: while he battles his federal case for deportation. He was
• 33:24
  Speaker 2: arrested by ICE agents in connection with the previously unreported
• 33:29
  Speaker 2: final order of removal an immigration judge issued in May
• 33:33
  Speaker 2: of twenty twenty four. He was hired as the superintendent
• 33:38
  Speaker 2: in May of twenty twenty three. I'm curious as to
• 33:41
  Speaker 2: how that could happen.
• 33:43
  Speaker 4: The way basically these things happen is there's a bunch
• 33:49
  Speaker 4: of i would say, identity issues in the immigration world,
• 33:52
  Speaker 4: but the only one that really matters is whatever identity
• 33:55
  Speaker 4: you have that's tied to your actual fingerprints in life.
• 33:59
  Speaker 4: So this individual Ian Roberts has an identity as a
• 34:05
  Speaker 4: Guyanese non citizen, so he's not a citizen of the
• 34:08
  Speaker 4: United States. He's from Guyana. And that this individual Ian Roberts,
• 34:14
  Speaker 4: with these fingerprints has a final order of removal because
• 34:18
  Speaker 4: this e of Roberts did not show up the court,
• 34:21
  Speaker 4: and so when you don't show up the court, you
• 34:23
  Speaker 4: have a final removal hearing. Now there's a person also
• 34:28
  Speaker 4: called Ian Roberts, who claimed in his immigration paperwork that
• 34:33
  Speaker 4: he gave to the Des Moines Public Schools that he
• 34:36
  Speaker 4: had resolved his immigration issues and that he had legal status,
• 34:41
  Speaker 4: and so the school didn't run him through what's called
• 34:44
  Speaker 4: the e Verify system, which is the system that basically
• 34:48
  Speaker 4: from the Homeland Security Department can tell you once and
• 34:52
  Speaker 4: for all who is the person you're dealing with. They
• 34:54
  Speaker 4: didn't do that. They used what's called the simple A
• 34:57
  Speaker 4: nine form document, which is the only thing you're actually
• 35:02
  Speaker 4: required to do as an employer. The everify is an
• 35:05
  Speaker 4: extra thing you can do. But the I nine paperwork
• 35:09
  Speaker 4: is simply the person fills out the paperwork and they
• 35:12
  Speaker 4: give a driver's license and a social Security number. And
• 35:16
  Speaker 4: if they do that and they claim they're a US citizen.
• 35:19
  Speaker 4: Then end the story, the employer really can't do anything
• 35:23
  Speaker 4: about it if that person gives you a driver's license
• 35:27
  Speaker 4: and a Social Security number and says they're a US citizen.
• 35:30
  Speaker 4: So the point is that that's the belief of what
• 35:33
  Speaker 4: Ian Roberts told the Des Moines Public Schools, and so
• 35:37
  Speaker 4: that's why they hired him. And then that the school
• 35:39
  Speaker 4: system didn't do a further investigation on this, And so
• 35:44
  Speaker 4: now Roberts resigns from the school board or from the
• 35:49
  Speaker 4: school system because this order of deportation ends up getting
• 35:53
  Speaker 4: executed against him. And Roberts is saying, I thought I
• 35:58
  Speaker 4: had fixed my city situation, and he's going to try
• 36:01
  Speaker 4: to make that argument an immigration court, but I don't
• 36:04
  Speaker 4: know how likely he is to prevail here.
• 36:06
  Speaker 2: And Liam, before I let you go, the Department of
• 36:09
  Speaker 2: Justice has just announced the creation of a new office
• 36:13
  Speaker 2: within the Civil Division that has implications for immigration. So
• 36:18
  Speaker 2: there used to be five branches.
• 36:20
  Speaker 4: What now There was an Immigration branch was the branch
• 36:23
  Speaker 4: I was the head of. There was a Federal Programs branch,
• 36:27
  Speaker 4: There was an appellate branch. There was just a normal
• 36:29
  Speaker 4: civil litigation branch, and a consumer protection branch. That Consumer
• 36:34
  Speaker 4: Protection branch has been eliminated and it's been replaced by
• 36:38
  Speaker 4: something called the Enforcement and Affirmative Litigation branch. And what's
• 36:42
  Speaker 4: interesting is that the Affirmative Litigation branch is basically going
• 36:46
  Speaker 4: to be used to sue states and cities about both
• 36:50
  Speaker 4: immigration and about transgender issues. And so they're basically going
• 36:55
  Speaker 4: to be looking across the country for are any transgender
• 37:00
  Speaker 4: or other type issues, or any sanctuary city, or any
• 37:04
  Speaker 4: scholarships being given to foreign nationals that are not being
• 37:07
  Speaker 4: given to citizens or anything like that, and they're just
• 37:11
  Speaker 4: going to be scouring the waterfront looking for any person
• 37:14
  Speaker 4: to sue, or any official or any city or any
• 37:18
  Speaker 4: state that they believe is violating the laws with regards
• 37:23
  Speaker 4: to both immigration and with regards to transgender issue.
• 37:27
  Speaker 2: New priorities for this Department of Justice. Thanks so much, Leon.
• 37:31
  Speaker 2: As always, that's Leon Fresco, a partner at Honda Knight.
• 37:35
  Speaker 2: And that's it for this edition of The Bloomberg Law Show.
• 37:38
  Speaker 2: Remember you can always get the latest legal news on
• 37:41
  Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
• 37:45
  Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law.
• 37:50
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• 37:53
  Speaker 2: weeknight at ten pm Wall Street Time. I'm Jim Grosso
• 37:57
  Speaker 2: and you're listening to Bloomberg