Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: For the first time in almost three years, close to
Speaker 1: seven hundred thousand young immigrants can dream again without the
Speaker 1: fear of being deported. In a closely divided decision, the
Speaker 1: Supreme Court blocked the Trump administration from ending the Obama
Speaker 1: era program that shields the young undocumented Dreamers from deportation
Speaker 1: and lets them get jobs. Chief Justice John Roberts joined
Speaker 1: the Courts for Liberals to rule that the administration's recision
Speaker 1: of Dhaka was arbitrary and capricious. Immigrant advocates like Natalie
Speaker 1: ray As, the president of the Latino Victory Project, were
Speaker 1: elated with the decision. I'm overly joyed because of this
Speaker 1: is the right thing to do. UM, this is what
Speaker 1: America has been built on the immigrant community, and UM,
Speaker 1: it's just so wonderful to have UM the Supreme Court
Speaker 1: ruling on our in our favor. And California Orney General
Speaker 1: Javier Bassara said the Supreme Court was sending a message
Speaker 1: to the Trump administration. We've had so many victories against
Speaker 1: this administration in court. They just refused to follow the rules.
Speaker 1: They seem to be very impatient and they don't believe
Speaker 1: the rules apply to them. But that's apparently not the
Speaker 1: message President Trump got. He tweeted that the Court's rulings
Speaker 1: are quote horrible and politically charged. Joining me is Leon Fresco,
Speaker 1: a partner at Holland and Knight who was formerly the
Speaker 1: head of the Justice Department's Office of Immigration Litigation. Did
Speaker 1: this decision from the Supreme Court come as a surprise, Well,
Speaker 1: it depends if you base it on what happened at
Speaker 1: the oral argument, versays looking at the history of what
Speaker 1: Justice Roberts has done on immigration. If you base it
Speaker 1: on what happened at the oral argument, you would certainly
Speaker 1: think it was a surprise, as Justice Robert didn't tip
Speaker 1: his hands to make people think he would rule in
Speaker 1: favor of preserving data. But if you look at it
Speaker 1: from where Justice Roberts had already come to in these decisions,
Speaker 1: you can look at the fact that in twelve, in
Speaker 1: the Arizona versus United States case, which talked about the
Speaker 1: Arizona Lague, Justice Scalia for whatever reason, had raised the
Speaker 1: issue of whether DOCCA was legal or not, and so
Speaker 1: there was already an opinion, which Justice Kennedy wrote in
Speaker 1: that case, which Justice Roberts signed onto, which said that
Speaker 1: the President didn't do anything illegally in putting DOCCA in
Speaker 1: in the first place, and so Justice Roberts couldn't sign
Speaker 1: onto the opinion that was written by Justice Thomas that
Speaker 1: DOCCA was illegal. But he also wanted to not say
Speaker 1: that it was unreviewable, like Justice Alito said, because he
Speaker 1: wanted to preserve the ability of the courts to strike
Speaker 1: a potential new program that a President Biden would do
Speaker 1: that might legalize all eleven million people. So he settled
Speaker 1: on the simplest possible solution. We just to say that
Speaker 1: the reasoning given by the administration was insufficient. So basically,
Speaker 1: did the chiefs say, this is not about whether the
Speaker 1: Trump administration could terminate DOCTA. Everyone agrees that they could,
Speaker 1: but it's about how they went about terminating DOCTA. Correct.
Speaker 1: What happened was all of the nine justices stipulated to
Speaker 1: the fact that the program could be rescinded, because even
Speaker 1: the DOCUMENTO from says that DOCTA programs could be resented,
Speaker 1: and so everybody agreed on that issue. The issue was
Speaker 1: the manner in which it was to be resented, and
Speaker 1: the justification given, and so the justification that had been
Speaker 1: given was that the doctor program is illegal, and Justice
Speaker 1: Robert did not want to opine in his decision as
Speaker 1: to whether that justification was true or not, so he
Speaker 1: did not. He skipped that issue, and he instead said
Speaker 1: that in the end, that was insufficient to just address
Speaker 1: the illegality legality of DOCCA, because that would say nothing
Speaker 1: as to what would be the fate of the status
Speaker 1: of the people here, would they be able to keep
Speaker 1: it for how long had they sufficiently relied on the
Speaker 1: program in order to remain in the United States, And
Speaker 1: that because none of that was addressed, all of that
Speaker 1: needed to be addressed in a subsequent DOCCA recission memo.
Speaker 1: So does he want the administration to think about the
Speaker 1: hardships to the doctor recipients? Is that part of it?
Speaker 1: That was certainly indicated as part of the decision that
Speaker 1: he would want a more robust analysis as to what
Speaker 1: would be the impact of resending the program and how
Speaker 1: that impact would be managed. In Justice Clarence Thomas's dissent,
Speaker 1: he said that the majority opinion was an effort to
Speaker 1: avoid a politically controversial but legally correct decision. Explain where
Speaker 1: the dissenters were coming from where Justice Thomas, Justice Gorsas,
Speaker 1: and Justice a Lego group of three came down and
Speaker 1: this was sort of I always do. There'd be three.
Speaker 1: I didn't know which three there would be, but I
Speaker 1: had a suspicion there would be three justices who would
Speaker 1: say DOCCA is an illegal program, period. And once the
Speaker 1: program is illegal, there's nothing more to review by anybody
Speaker 1: because the administration doesn't have to do anything. If a
Speaker 1: program is illegal, the program is illegal. Hence it goes away.
Speaker 1: And what Justice Thomas is criticizing Justice Roberts for doing
Speaker 1: is because Justice Roberts doesn't decide the question of legality
Speaker 1: versus illegality. He thinks, to Justice Roberts, what difference does
Speaker 1: it make how the program was ended? Is it's illegal?
Speaker 1: And Justice Roberts did not address that question because he said,
Speaker 1: even if the program is illegal, it has to go
Speaker 1: through certain analysis about how that program is to be
Speaker 1: wound down. And that analysis didn't occur here. And that's
Speaker 1: where the fundamental disagreement is between the Republican justice is
Speaker 1: if it's illegal, is that it or is there more
Speaker 1: huge even if the program is illegal? So a lot
Speaker 1: of people watch. Justice Sony so to Mayor. In immigration cases,
Speaker 1: she joined most of the majority opinion right. She agreed
Speaker 1: with the principle that the justification given was insufficient, but she,
Speaker 1: unlike Justice Roberts, did not want to dismiss the other
Speaker 1: claim that was made in that case, which was that
Speaker 1: the data recision was also unlawful because it was motivated
Speaker 1: by its discriminatory animate. She said that there was plenty
Speaker 1: of record evidence to allow that claim to continue. So
Speaker 1: President Obama created the program by executive order. We've seen
Speaker 1: President Trump do a lot of things by executive order.
Speaker 1: Why do they contend it's illegal? Well, so the issue
Speaker 1: is this A lot of the things that the President
Speaker 1: Trump has been doing with regard to executive orders have
Speaker 1: all been involving the use of the statutory authority of
Speaker 1: the travel band that deal with different banning different people
Speaker 1: who are outside the United States. This docta issue pertains
Speaker 1: to people who are already here. And so what the
Speaker 1: Supreme Court said today is, if you are going to
Speaker 1: respind something that affects real people who are already here,
Speaker 1: you have to provide an analysis under the Administrative Procedure
Speaker 1: Act that's not arbitrary. And capricious, And he said that
Speaker 1: that analysis was arbitrary and capricious because it did not
Speaker 1: adequately explain what were the reasons for rescinding it, other
Speaker 1: than saying it was illegal, which was a reason that
Speaker 1: he just said was insufficient. Just saying it was illegal
Speaker 1: was insufficient. You had to discuss the reliance interests of
Speaker 1: the people who had signed up and who had been
Speaker 1: in this pro rom for many years. And even if
Speaker 1: it was illegal, what would you do in the future
Speaker 1: to sort of manage the expectations of these people in
Speaker 1: the middle of their processes? Would would the government actually
Speaker 1: start taking people off? What would they do? And he
Speaker 1: also drew a distinction, which was an important distinction between
Speaker 1: the two aspects of data, because there are two aspects.
Speaker 1: One is the aspect that shields your deportation, and the
Speaker 1: second is the aspect that allows you to work here.
Speaker 1: And he said that the justification that was given only
Speaker 1: really addressed the fact that allowing people to work here
Speaker 1: while they were here without status was illegal, but it
Speaker 1: didn't justify couldn't the government at least still shield people
Speaker 1: from deportation and even if they couldn't work here, And
Speaker 1: without going into that bifurcated analysis. It was insufficient. So
Speaker 1: the Conservatives think that President Obama did not have the
Speaker 1: power to create eight data correct the three conservative justices
Speaker 1: now Justice Kavadat interestingly did not reach that determination. He
Speaker 1: just said that there was a memo nine months later
Speaker 1: after the initial doctor recision, memo that Kirsten Nielsen then
Speaker 1: wrote as Secretary of Homeland Security that contained all of this,
Speaker 1: and that that memo should have been allowed to serve
Speaker 1: as a justification. And Justice Roberts didn't address the merits
Speaker 1: of the Nielsen memos. He didn't tip his hand to
Speaker 1: say whether that was going to be sufficient or not.
Speaker 1: He simply said it couldn't be relied upon because the
Speaker 1: litigation had already started and that memo hadn't been issued
Speaker 1: until after the litigation was started. Are the Dreamers able
Speaker 1: to breathe a sigh of relief now? Are they safe? Well?
Speaker 1: Nothing is permanent for the Dreamers for multiple reasons. Day
Speaker 1: the program was not permanently. The Court said nothing today
Speaker 1: that made it permanent. But what they can probably take
Speaker 1: solace on is that for some period of time, if
Speaker 1: your doctor status is set to expire, you should immediate
Speaker 1: He gets a renewal application in there to try to
Speaker 1: at least get two more years in your particular case,
Speaker 1: if you're a DACKA holder. And so there's gonna be
Speaker 1: some number of data holders who will be able to
Speaker 1: renew their status now that weren't going to be able
Speaker 1: to renew their status even if it gets rescinded, and
Speaker 1: moving forward in the future, it's going to be an
Speaker 1: interesting and open question as to whether the President will
Speaker 1: feel like there's any advantage to trying again to rEFInd DACCA.
Speaker 1: But as a practical matter, if your concern is, well,
Speaker 1: let me get through the election, I would say it's
Speaker 1: a virtual certainty that DOCTA won't be rescinded, either because
Speaker 1: there won't be a memo issue or because there will
Speaker 1: be an injunction issued until after the election. And that's
Speaker 1: what Justice Alito basically that too, is that you know,
Speaker 1: Trump is not going to be allowed to do something
Speaker 1: that he should have been allowed to do the first
Speaker 1: term is gone. So, I mean, even Alito basically completed
Speaker 1: that point, and Leon it would take some time time,
Speaker 1: wouldn't it to get that memo together to answer all
Speaker 1: of Justice Robert's points, right, I mean, we don't know,
Speaker 1: because the issue is, well, maybe the kursten Nielsen memo
Speaker 1: is going to be enough, but of course that memo
Speaker 1: was written two years ago, so it's still relevance that today.
Speaker 1: If you're looking at this in the like most favorable
Speaker 1: to the administration, they could make arguments about COVID and
Speaker 1: unemployment that might be relevant for them. But by the
Speaker 1: flip side, the DOTA supporters can make the arguments about
Speaker 1: how many doctor workers are essential workers for various reasons
Speaker 1: in this current economy, and so those things can all
Speaker 1: go back and forth, and the question would be, Okay,
Speaker 1: you write a memo. Whatever memo you write, let's say
Speaker 1: you can get it done in thirty days. You know,
Speaker 1: people would sue in every court in the country hoping
Speaker 1: to get one injunction, and you would assume they'd be
Speaker 1: able to get at least one injunction that enjoys the
Speaker 1: termination of DOT. And then the question is it's very
Speaker 1: unlikely given what we've seen that Justice Roberts will supply
Speaker 1: the fifth vote to say that injunction and like he
Speaker 1: did in the public charge case, meaning DOCTA would survive
Speaker 1: until at least June, if not in June so now
Speaker 1: looking at the big picture, this is the third case
Speaker 1: I believe in which the Supreme Court has considered the
Speaker 1: president's power in immigration. You have the Muslim ban where
Speaker 1: they upheld the president's power, and you have the Census
Speaker 1: case where they did not, and they basically kicked that
Speaker 1: can down the road as well. Do you see any
Speaker 1: similarities or threads that would allow us to predict a
Speaker 1: little bit better what the Court will do in immigration decisions? Sure?
Speaker 1: I think the best thing that I can sort of
Speaker 1: craft out of the differently threaded decisions is the sort
Speaker 1: of prospect continues to hold. I think, and this has
Speaker 1: been like a hundred year thing. This has not been
Speaker 1: a one year thing or a trump that if the
Speaker 1: human being is not inside the United States, the chances
Speaker 1: that they're gonna get any sympathy from the Court is
Speaker 1: going to be very low. Hence all of the travel
Speaker 1: band victory and other things like that and public charred
Speaker 1: things where the idea is, even though some of the
Speaker 1: folks are here, you're still preventing people from essentially becoming
Speaker 1: part of the American fabric unless they do certain things
Speaker 1: versus like the Census and DOCCA and other decisions we've
Speaker 1: seen where once a person is here and has been
Speaker 1: here for quite some time, the court is looking at
Speaker 1: these with much larger scrutiny about the fate of these individuals.
Speaker 1: Thanks Leon Best, Leon Fresco of Hollanden Night. Thanks for
Speaker 1: listening to the Bloomberg Law podcast. You can subscribe and
Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on
Speaker 1: Bloomberg dot com slash podcast. I'm June Bosso. This is
Speaker 1: Bloomberg two