WEBVTT - Supreme Court Stops Trump From Ending DACA 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:05.960 --> 0:00:08.760 For the first time in almost three years, close to 0:00:08.840 --> 0:00:12.680 seven hundred thousand young immigrants can dream again without the 0:00:12.720 --> 0:00:16.680 fear of being deported. In a closely divided decision, the 0:00:16.720 --> 0:00:20.600 Supreme Court blocked the Trump administration from ending the Obama 0:00:20.640 --> 0:00:25.320 era program that shields the young undocumented Dreamers from deportation 0:00:25.800 --> 0:00:29.840 and lets them get jobs. Chief Justice John Roberts joined 0:00:29.840 --> 0:00:33.600 the Courts for Liberals to rule that the administration's recision 0:00:33.640 --> 0:00:38.720 of Dhaka was arbitrary and capricious. Immigrant advocates like Natalie 0:00:38.840 --> 0:00:42.080 ray As, the president of the Latino Victory Project, were 0:00:42.120 --> 0:00:46.199 elated with the decision. I'm overly joyed because of this 0:00:46.280 --> 0:00:48.920 is the right thing to do. UM, this is what 0:00:49.000 --> 0:00:53.080 America has been built on the immigrant community, and UM, 0:00:53.080 --> 0:00:56.680 it's just so wonderful to have UM the Supreme Court 0:00:56.960 --> 0:01:00.520 ruling on our in our favor. And California Orney General 0:01:00.600 --> 0:01:04.160 Javier Bassara said the Supreme Court was sending a message 0:01:04.200 --> 0:01:08.120 to the Trump administration. We've had so many victories against 0:01:08.160 --> 0:01:11.839 this administration in court. They just refused to follow the rules. 0:01:12.040 --> 0:01:14.920 They seem to be very impatient and they don't believe 0:01:14.959 --> 0:01:18.000 the rules apply to them. But that's apparently not the 0:01:18.040 --> 0:01:21.840 message President Trump got. He tweeted that the Court's rulings 0:01:21.880 --> 0:01:26.480 are quote horrible and politically charged. Joining me is Leon Fresco, 0:01:26.560 --> 0:01:29.000 a partner at Holland and Knight who was formerly the 0:01:29.000 --> 0:01:32.839 head of the Justice Department's Office of Immigration Litigation. Did 0:01:32.880 --> 0:01:37.920 this decision from the Supreme Court come as a surprise, Well, 0:01:38.400 --> 0:01:42.120 it depends if you base it on what happened at 0:01:42.160 --> 0:01:45.480 the oral argument, versays looking at the history of what 0:01:45.600 --> 0:01:48.840 Justice Roberts has done on immigration. If you base it 0:01:48.960 --> 0:01:51.320 on what happened at the oral argument, you would certainly 0:01:51.360 --> 0:01:54.560 think it was a surprise, as Justice Robert didn't tip 0:01:54.640 --> 0:01:57.480 his hands to make people think he would rule in 0:01:57.560 --> 0:02:00.880 favor of preserving data. But if you look at it 0:02:01.000 --> 0:02:05.760 from where Justice Roberts had already come to in these decisions, 0:02:05.800 --> 0:02:08.280 you can look at the fact that in twelve, in 0:02:08.320 --> 0:02:11.280 the Arizona versus United States case, which talked about the 0:02:11.320 --> 0:02:15.120 Arizona Lague, Justice Scalia for whatever reason, had raised the 0:02:15.160 --> 0:02:17.840 issue of whether DOCCA was legal or not, and so 0:02:17.919 --> 0:02:21.160 there was already an opinion, which Justice Kennedy wrote in 0:02:21.160 --> 0:02:26.160 that case, which Justice Roberts signed onto, which said that 0:02:26.200 --> 0:02:29.840 the President didn't do anything illegally in putting DOCCA in 0:02:29.840 --> 0:02:34.080 in the first place, and so Justice Roberts couldn't sign 0:02:34.160 --> 0:02:37.280 onto the opinion that was written by Justice Thomas that 0:02:37.520 --> 0:02:41.840 DOCCA was illegal. But he also wanted to not say 0:02:41.880 --> 0:02:45.960 that it was unreviewable, like Justice Alito said, because he 0:02:46.040 --> 0:02:49.080 wanted to preserve the ability of the courts to strike 0:02:49.480 --> 0:02:52.680 a potential new program that a President Biden would do 0:02:52.800 --> 0:02:57.079 that might legalize all eleven million people. So he settled 0:02:57.160 --> 0:03:01.560 on the simplest possible solution. We just to say that 0:03:01.639 --> 0:03:06.799 the reasoning given by the administration was insufficient. So basically, 0:03:06.880 --> 0:03:09.560 did the chiefs say, this is not about whether the 0:03:09.560 --> 0:03:13.840 Trump administration could terminate DOCTA. Everyone agrees that they could, 0:03:14.240 --> 0:03:18.720 but it's about how they went about terminating DOCTA. Correct. 0:03:18.880 --> 0:03:22.520 What happened was all of the nine justices stipulated to 0:03:22.560 --> 0:03:26.400 the fact that the program could be rescinded, because even 0:03:26.440 --> 0:03:30.560 the DOCUMENTO from says that DOCTA programs could be resented, 0:03:30.840 --> 0:03:34.600 and so everybody agreed on that issue. The issue was 0:03:34.840 --> 0:03:37.680 the manner in which it was to be resented, and 0:03:37.760 --> 0:03:40.960 the justification given, and so the justification that had been 0:03:41.000 --> 0:03:44.640 given was that the doctor program is illegal, and Justice 0:03:44.720 --> 0:03:48.040 Robert did not want to opine in his decision as 0:03:48.040 --> 0:03:51.160 to whether that justification was true or not, so he 0:03:51.200 --> 0:03:54.720 did not. He skipped that issue, and he instead said 0:03:55.360 --> 0:03:58.680 that in the end, that was insufficient to just address 0:03:58.760 --> 0:04:04.000 the illegality legality of DOCCA, because that would say nothing 0:04:04.160 --> 0:04:08.320 as to what would be the fate of the status 0:04:08.360 --> 0:04:10.520 of the people here, would they be able to keep 0:04:10.520 --> 0:04:14.280 it for how long had they sufficiently relied on the 0:04:14.320 --> 0:04:17.640 program in order to remain in the United States, And 0:04:17.760 --> 0:04:20.320 that because none of that was addressed, all of that 0:04:20.360 --> 0:04:24.120 needed to be addressed in a subsequent DOCCA recission memo. 0:04:24.480 --> 0:04:28.240 So does he want the administration to think about the 0:04:28.279 --> 0:04:31.839 hardships to the doctor recipients? Is that part of it? 0:04:32.279 --> 0:04:35.359 That was certainly indicated as part of the decision that 0:04:35.480 --> 0:04:39.839 he would want a more robust analysis as to what 0:04:40.000 --> 0:04:42.800 would be the impact of resending the program and how 0:04:42.839 --> 0:04:46.800 that impact would be managed. In Justice Clarence Thomas's dissent, 0:04:47.320 --> 0:04:50.359 he said that the majority opinion was an effort to 0:04:50.440 --> 0:04:56.000 avoid a politically controversial but legally correct decision. Explain where 0:04:56.120 --> 0:05:01.160 the dissenters were coming from where Justice Thomas, Justice Gorsas, 0:05:01.240 --> 0:05:05.480 and Justice a Lego group of three came down and 0:05:05.560 --> 0:05:07.479 this was sort of I always do. There'd be three. 0:05:07.520 --> 0:05:09.359 I didn't know which three there would be, but I 0:05:09.400 --> 0:05:12.120 had a suspicion there would be three justices who would 0:05:12.160 --> 0:05:16.719 say DOCCA is an illegal program, period. And once the 0:05:16.800 --> 0:05:20.080 program is illegal, there's nothing more to review by anybody 0:05:20.320 --> 0:05:23.080 because the administration doesn't have to do anything. If a 0:05:23.160 --> 0:05:26.919 program is illegal, the program is illegal. Hence it goes away. 0:05:27.400 --> 0:05:31.320 And what Justice Thomas is criticizing Justice Roberts for doing 0:05:31.720 --> 0:05:36.160 is because Justice Roberts doesn't decide the question of legality 0:05:36.680 --> 0:05:40.800 versus illegality. He thinks, to Justice Roberts, what difference does 0:05:40.839 --> 0:05:44.240 it make how the program was ended? Is it's illegal? 0:05:45.000 --> 0:05:49.400 And Justice Roberts did not address that question because he said, 0:05:49.880 --> 0:05:53.360 even if the program is illegal, it has to go 0:05:53.520 --> 0:05:57.080 through certain analysis about how that program is to be 0:05:57.120 --> 0:06:01.920 wound down. And that analysis didn't occur here. And that's 0:06:01.960 --> 0:06:05.960 where the fundamental disagreement is between the Republican justice is 0:06:06.680 --> 0:06:09.080 if it's illegal, is that it or is there more 0:06:09.360 --> 0:06:12.480 huge even if the program is illegal? So a lot 0:06:12.480 --> 0:06:17.120 of people watch. Justice Sony so to Mayor. In immigration cases, 0:06:17.880 --> 0:06:23.440 she joined most of the majority opinion right. She agreed 0:06:23.520 --> 0:06:27.880 with the principle that the justification given was insufficient, but she, 0:06:28.120 --> 0:06:32.400 unlike Justice Roberts, did not want to dismiss the other 0:06:32.560 --> 0:06:35.440 claim that was made in that case, which was that 0:06:35.560 --> 0:06:39.839 the data recision was also unlawful because it was motivated 0:06:39.880 --> 0:06:43.560 by its discriminatory animate. She said that there was plenty 0:06:43.560 --> 0:06:48.120 of record evidence to allow that claim to continue. So 0:06:48.400 --> 0:06:53.200 President Obama created the program by executive order. We've seen 0:06:53.240 --> 0:06:56.320 President Trump do a lot of things by executive order. 0:06:57.080 --> 0:07:01.520 Why do they contend it's illegal? Well, so the issue 0:07:01.640 --> 0:07:04.000 is this A lot of the things that the President 0:07:04.000 --> 0:07:07.279 Trump has been doing with regard to executive orders have 0:07:07.440 --> 0:07:10.840 all been involving the use of the statutory authority of 0:07:10.960 --> 0:07:14.240 the travel band that deal with different banning different people 0:07:14.280 --> 0:07:18.000 who are outside the United States. This docta issue pertains 0:07:18.040 --> 0:07:21.000 to people who are already here. And so what the 0:07:21.080 --> 0:07:24.080 Supreme Court said today is, if you are going to 0:07:24.200 --> 0:07:28.559 respind something that affects real people who are already here, 0:07:29.080 --> 0:07:32.960 you have to provide an analysis under the Administrative Procedure 0:07:33.000 --> 0:07:37.080 Act that's not arbitrary. And capricious, And he said that 0:07:37.080 --> 0:07:41.360 that analysis was arbitrary and capricious because it did not 0:07:41.640 --> 0:07:47.360 adequately explain what were the reasons for rescinding it, other 0:07:47.400 --> 0:07:50.520 than saying it was illegal, which was a reason that 0:07:50.560 --> 0:07:53.400 he just said was insufficient. Just saying it was illegal 0:07:53.880 --> 0:07:57.480 was insufficient. You had to discuss the reliance interests of 0:07:57.600 --> 0:07:59.440 the people who had signed up and who had been 0:07:59.480 --> 0:08:02.120 in this pro rom for many years. And even if 0:08:02.160 --> 0:08:05.200 it was illegal, what would you do in the future 0:08:05.320 --> 0:08:08.880 to sort of manage the expectations of these people in 0:08:08.960 --> 0:08:12.000 the middle of their processes? Would would the government actually 0:08:12.040 --> 0:08:14.720 start taking people off? What would they do? And he 0:08:14.800 --> 0:08:18.960 also drew a distinction, which was an important distinction between 0:08:19.040 --> 0:08:22.000 the two aspects of data, because there are two aspects. 0:08:22.440 --> 0:08:26.160 One is the aspect that shields your deportation, and the 0:08:26.200 --> 0:08:29.240 second is the aspect that allows you to work here. 0:08:30.000 --> 0:08:33.880 And he said that the justification that was given only 0:08:33.920 --> 0:08:36.720 really addressed the fact that allowing people to work here 0:08:36.720 --> 0:08:40.640 while they were here without status was illegal, but it 0:08:40.720 --> 0:08:44.600 didn't justify couldn't the government at least still shield people 0:08:44.679 --> 0:08:48.679 from deportation and even if they couldn't work here, And 0:08:48.760 --> 0:08:53.840 without going into that bifurcated analysis. It was insufficient. So 0:08:54.120 --> 0:08:58.920 the Conservatives think that President Obama did not have the 0:08:59.000 --> 0:09:03.120 power to create eight data correct the three conservative justices 0:09:03.640 --> 0:09:07.560 now Justice Kavadat interestingly did not reach that determination. He 0:09:07.760 --> 0:09:10.720 just said that there was a memo nine months later 0:09:10.880 --> 0:09:14.680 after the initial doctor recision, memo that Kirsten Nielsen then 0:09:14.800 --> 0:09:18.200 wrote as Secretary of Homeland Security that contained all of this, 0:09:18.840 --> 0:09:21.200 and that that memo should have been allowed to serve 0:09:21.240 --> 0:09:25.440 as a justification. And Justice Roberts didn't address the merits 0:09:25.440 --> 0:09:27.920 of the Nielsen memos. He didn't tip his hand to 0:09:27.960 --> 0:09:30.280 say whether that was going to be sufficient or not. 0:09:30.600 --> 0:09:33.679 He simply said it couldn't be relied upon because the 0:09:33.760 --> 0:09:36.840 litigation had already started and that memo hadn't been issued 0:09:37.280 --> 0:09:40.559 until after the litigation was started. Are the Dreamers able 0:09:40.600 --> 0:09:43.679 to breathe a sigh of relief now? Are they safe? Well? 0:09:43.840 --> 0:09:47.040 Nothing is permanent for the Dreamers for multiple reasons. Day 0:09:47.120 --> 0:09:50.200 the program was not permanently. The Court said nothing today 0:09:50.200 --> 0:09:53.760 that made it permanent. But what they can probably take 0:09:53.960 --> 0:09:57.000 solace on is that for some period of time, if 0:09:57.040 --> 0:09:59.920 your doctor status is set to expire, you should immediate 0:10:00.040 --> 0:10:03.400 He gets a renewal application in there to try to 0:10:03.440 --> 0:10:06.199 at least get two more years in your particular case, 0:10:06.400 --> 0:10:08.800 if you're a DACKA holder. And so there's gonna be 0:10:08.840 --> 0:10:11.040 some number of data holders who will be able to 0:10:11.080 --> 0:10:14.120 renew their status now that weren't going to be able 0:10:14.160 --> 0:10:17.880 to renew their status even if it gets rescinded, and 0:10:18.200 --> 0:10:21.679 moving forward in the future, it's going to be an 0:10:21.720 --> 0:10:24.520 interesting and open question as to whether the President will 0:10:24.559 --> 0:10:28.600 feel like there's any advantage to trying again to rEFInd DACCA. 0:10:29.200 --> 0:10:33.000 But as a practical matter, if your concern is, well, 0:10:33.080 --> 0:10:36.160 let me get through the election, I would say it's 0:10:36.200 --> 0:10:39.920 a virtual certainty that DOCTA won't be rescinded, either because 0:10:39.960 --> 0:10:42.480 there won't be a memo issue or because there will 0:10:42.520 --> 0:10:46.080 be an injunction issued until after the election. And that's 0:10:46.080 --> 0:10:49.520 what Justice Alito basically that too, is that you know, 0:10:49.600 --> 0:10:51.480 Trump is not going to be allowed to do something 0:10:51.520 --> 0:10:53.640 that he should have been allowed to do the first 0:10:53.720 --> 0:10:57.280 term is gone. So, I mean, even Alito basically completed 0:10:57.360 --> 0:11:00.240 that point, and Leon it would take some time time, 0:11:00.240 --> 0:11:03.360 wouldn't it to get that memo together to answer all 0:11:03.400 --> 0:11:06.480 of Justice Robert's points, right, I mean, we don't know, 0:11:06.679 --> 0:11:09.839 because the issue is, well, maybe the kursten Nielsen memo 0:11:10.160 --> 0:11:11.800 is going to be enough, but of course that memo 0:11:11.880 --> 0:11:14.600 was written two years ago, so it's still relevance that today. 0:11:15.080 --> 0:11:17.360 If you're looking at this in the like most favorable 0:11:17.520 --> 0:11:21.160 to the administration, they could make arguments about COVID and 0:11:21.920 --> 0:11:24.760 unemployment that might be relevant for them. But by the 0:11:24.800 --> 0:11:28.280 flip side, the DOTA supporters can make the arguments about 0:11:28.280 --> 0:11:32.200 how many doctor workers are essential workers for various reasons 0:11:32.200 --> 0:11:34.800 in this current economy, and so those things can all 0:11:34.840 --> 0:11:37.040 go back and forth, and the question would be, Okay, 0:11:37.040 --> 0:11:39.839 you write a memo. Whatever memo you write, let's say 0:11:39.880 --> 0:11:42.200 you can get it done in thirty days. You know, 0:11:42.400 --> 0:11:45.199 people would sue in every court in the country hoping 0:11:45.280 --> 0:11:48.319 to get one injunction, and you would assume they'd be 0:11:48.360 --> 0:11:50.719 able to get at least one injunction that enjoys the 0:11:51.040 --> 0:11:54.040 termination of DOT. And then the question is it's very 0:11:54.120 --> 0:11:57.840 unlikely given what we've seen that Justice Roberts will supply 0:11:58.000 --> 0:12:00.360 the fifth vote to say that injunction and like he 0:12:00.480 --> 0:12:04.480 did in the public charge case, meaning DOCTA would survive 0:12:05.200 --> 0:12:10.960 until at least June, if not in June so now 0:12:11.160 --> 0:12:14.600 looking at the big picture, this is the third case 0:12:14.840 --> 0:12:17.840 I believe in which the Supreme Court has considered the 0:12:17.880 --> 0:12:22.920 president's power in immigration. You have the Muslim ban where 0:12:22.960 --> 0:12:26.880 they upheld the president's power, and you have the Census 0:12:26.920 --> 0:12:30.360 case where they did not, and they basically kicked that 0:12:30.440 --> 0:12:33.760 can down the road as well. Do you see any 0:12:33.880 --> 0:12:38.840 similarities or threads that would allow us to predict a 0:12:38.840 --> 0:12:43.600 little bit better what the Court will do in immigration decisions? Sure? 0:12:43.640 --> 0:12:46.280 I think the best thing that I can sort of 0:12:46.400 --> 0:12:51.480 craft out of the differently threaded decisions is the sort 0:12:51.520 --> 0:12:55.640 of prospect continues to hold. I think, and this has 0:12:55.640 --> 0:12:57.719 been like a hundred year thing. This has not been 0:12:58.440 --> 0:13:01.600 a one year thing or a trump that if the 0:13:01.720 --> 0:13:05.640 human being is not inside the United States, the chances 0:13:05.679 --> 0:13:07.839 that they're gonna get any sympathy from the Court is 0:13:07.880 --> 0:13:10.560 going to be very low. Hence all of the travel 0:13:10.640 --> 0:13:14.839 band victory and other things like that and public charred 0:13:15.000 --> 0:13:17.800 things where the idea is, even though some of the 0:13:17.840 --> 0:13:22.439 folks are here, you're still preventing people from essentially becoming 0:13:22.960 --> 0:13:25.760 part of the American fabric unless they do certain things 0:13:26.320 --> 0:13:29.520 versus like the Census and DOCCA and other decisions we've 0:13:29.520 --> 0:13:32.600 seen where once a person is here and has been 0:13:32.640 --> 0:13:35.880 here for quite some time, the court is looking at 0:13:35.920 --> 0:13:40.360 these with much larger scrutiny about the fate of these individuals. 0:13:40.679 --> 0:13:45.160 Thanks Leon Best, Leon Fresco of Hollanden Night. Thanks for 0:13:45.240 --> 0:13:48.480 listening to the Bloomberg Law podcast. You can subscribe and 0:13:48.559 --> 0:13:51.800 listen to the show on Apple Podcasts, SoundCloud, and on 0:13:51.880 --> 0:13:56.600 Bloomberg dot com slash podcast. I'm June Bosso. This is 0:13:56.640 --> 0:14:00.880 Bloomberg two