1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,160 --> 00:00:09,879 Speaker 1: The legal question before the Supreme Court was fairly prosaic. 3 00:00:10,160 --> 00:00:13,600 Speaker 1: Could a US corporation be sued by foreigners under a 4 00:00:13,680 --> 00:00:17,560 Speaker 1: centuries old law for aiding and abetting actions overseas? But 5 00:00:17,680 --> 00:00:21,680 Speaker 1: the facts of the case were extraordinary and horrifying. A 6 00:00:21,760 --> 00:00:25,040 Speaker 1: suit by six former child slaves who were kidnapped from 7 00:00:25,040 --> 00:00:28,360 Speaker 1: their native molly and forced to work fourteen hour days 8 00:00:28,400 --> 00:00:31,520 Speaker 1: on Coco farms on the Ivory Coast, where they say 9 00:00:31,560 --> 00:00:35,720 Speaker 1: they were starved, beaten, and tortured. Their suit against Nestley's 10 00:00:35,760 --> 00:00:39,440 Speaker 1: and Cargo accuses the Chalka companies of complicity and their 11 00:00:39,520 --> 00:00:43,199 Speaker 1: enslavement by giving the farmer's financial assistance to maintain a 12 00:00:43,240 --> 00:00:47,280 Speaker 1: supply of cheap coco. Nestle's lawyer, Neil Cartial faced some 13 00:00:47,400 --> 00:00:52,000 Speaker 1: tough questions here are Justices Sonya Sotomayor and Samuel Alito 14 00:00:52,720 --> 00:00:56,600 Speaker 1: set aside for me, why you think international law there's 15 00:00:56,640 --> 00:01:00,160 Speaker 1: not an international law against stating and abetting something as 16 00:01:00,240 --> 00:01:07,240 Speaker 1: heenious as child slavery. Mr. Many of your arguments leed 17 00:01:07,480 --> 00:01:10,800 Speaker 1: results that are pretty hard to take. And josh is 18 00:01:10,800 --> 00:01:15,280 Speaker 1: Elena Kagan grilled Kantiale about his theory that no corporation 19 00:01:15,360 --> 00:01:18,760 Speaker 1: can be sued under the Alien Towards Statute because this 20 00:01:19,600 --> 00:01:23,440 Speaker 1: same former child slave and the same circumstances bring a 21 00:01:23,480 --> 00:01:27,560 Speaker 1: suit against ten slaveholders. Uh, you know, if they if 22 00:01:27,600 --> 00:01:31,440 Speaker 1: they had met that you know, the requirements under the law. Yeah, yeah, sure, 23 00:01:31,440 --> 00:01:34,280 Speaker 1: I mean, if they was, you could bring a suit 24 00:01:34,319 --> 00:01:38,640 Speaker 1: against ten slaveholders. When those ten slaveholders form a corporation, 25 00:01:39,120 --> 00:01:42,280 Speaker 1: Why can't you bring a suit against the corporation? Joining me? 26 00:01:42,360 --> 00:01:44,920 Speaker 1: Is Harold crant To, professor at the Chicago Kent College 27 00:01:44,920 --> 00:01:48,360 Speaker 1: of Law. How the Alien Towards Statute was a favorite 28 00:01:48,400 --> 00:01:52,280 Speaker 1: tool of human rights advocates to sue for overseas atrocities 29 00:01:52,640 --> 00:01:56,400 Speaker 1: until the Roberts Court started scaling it back. What's left 30 00:01:56,440 --> 00:01:59,680 Speaker 1: of it, it's unclear. What court has said is that 31 00:02:00,000 --> 00:02:03,200 Speaker 1: if there is a action that's closely tied to the 32 00:02:03,280 --> 00:02:08,320 Speaker 1: United States that violates all international decency, then at least 33 00:02:08,320 --> 00:02:12,760 Speaker 1: an individual who has committed that claim, whether it's piracy 34 00:02:13,000 --> 00:02:18,080 Speaker 1: or slavery or assassination, may be hauled into court in 35 00:02:18,120 --> 00:02:21,520 Speaker 1: the United States. Two second guests that behavior. But what 36 00:02:21,600 --> 00:02:24,400 Speaker 1: has been surprising is that the Court has suggested that 37 00:02:24,520 --> 00:02:28,080 Speaker 1: this Alien Towards Statute has to have a close connection 38 00:02:28,320 --> 00:02:32,360 Speaker 1: to the United States, and that's not at all what 39 00:02:32,639 --> 00:02:35,400 Speaker 1: it seems like on's face. And that's not what it 40 00:02:35,400 --> 00:02:38,600 Speaker 1: seems like if you look at the scamp historical precedents 41 00:02:38,680 --> 00:02:41,840 Speaker 1: that exist. So this is really a retooling of the 42 00:02:41,919 --> 00:02:45,520 Speaker 1: statute to use as a safety valve for when the 43 00:02:45,639 --> 00:02:50,720 Speaker 1: US individual has created some kind of atrocities abroad. So 44 00:02:50,760 --> 00:02:54,720 Speaker 1: how has the Supreme Court treated corporations under the statute? 45 00:02:55,040 --> 00:02:58,880 Speaker 1: There recently has cut back the scope of the Alien 46 00:02:58,919 --> 00:03:03,400 Speaker 1: Towards Statute I wouling that foreign corporation could not be sued. 47 00:03:03,560 --> 00:03:07,679 Speaker 1: The case arose because of a challenge to a Jordanian bank, 48 00:03:07,720 --> 00:03:12,040 Speaker 1: which allegedly had given funds to Palestinian terrorists which injured 49 00:03:12,120 --> 00:03:15,519 Speaker 1: U S citizens there. The Court said that foreign corporations 50 00:03:15,560 --> 00:03:18,120 Speaker 1: cannot be held in as defendants for a couple of reasons. 51 00:03:18,160 --> 00:03:21,280 Speaker 1: One is because of the history that most criminal statutes 52 00:03:21,639 --> 00:03:25,960 Speaker 1: and treaties against torture have focused on individuals as opposed 53 00:03:26,000 --> 00:03:28,920 Speaker 1: to corporations, and also because of the fear of entangling 54 00:03:28,960 --> 00:03:32,160 Speaker 1: the US in some kind of disputes with foreign governments 55 00:03:32,280 --> 00:03:35,280 Speaker 1: to extent that foreign corporations can be sued here. So 56 00:03:35,440 --> 00:03:38,920 Speaker 1: one of the issues in the case involving Nestle's is 57 00:03:38,960 --> 00:03:42,640 Speaker 1: whether domestic corporations such as ness, Leg and Cargill can 58 00:03:42,680 --> 00:03:46,040 Speaker 1: be sued under the Alien Toward Statute, and the answer 59 00:03:46,080 --> 00:03:50,200 Speaker 1: is unclear. Nestle's lawyer wanted the justices to give US 60 00:03:50,320 --> 00:03:55,720 Speaker 1: corporations a shield against lawsuits under the Alien Towards Statute. 61 00:03:56,040 --> 00:03:58,640 Speaker 1: That's a big ask, isn't it. Yeah, So there are 62 00:03:58,640 --> 00:04:02,560 Speaker 1: really three that of arguments that are played for the 63 00:04:02,600 --> 00:04:05,560 Speaker 1: Supreme Court. The one that we've been discussing is whether 64 00:04:05,840 --> 00:04:09,240 Speaker 1: any corporation can be sued under the Dealing and Towards 65 00:04:09,240 --> 00:04:13,200 Speaker 1: Statute at all. And obviously corporations can violate the Wall 66 00:04:13,200 --> 00:04:16,040 Speaker 1: of Nations just as much as individuals can. So there 67 00:04:16,160 --> 00:04:19,599 Speaker 1: is a definite issue with respect to the scope of 68 00:04:19,640 --> 00:04:22,440 Speaker 1: the Alien Toward Statue and that respect. Another one is 69 00:04:22,720 --> 00:04:25,760 Speaker 1: what kind of connection the conduct has to have to 70 00:04:25,800 --> 00:04:29,240 Speaker 1: the United States, Because what nestlely has argued here is 71 00:04:29,279 --> 00:04:32,320 Speaker 1: that you know, if there's enslavement, if there's forced labor 72 00:04:32,560 --> 00:04:36,240 Speaker 1: that's taking place in Ivory Coast, it's not taking place 73 00:04:36,279 --> 00:04:39,800 Speaker 1: in the United States. And so they're refashioning the Alien 74 00:04:39,800 --> 00:04:43,920 Speaker 1: Towards Statute to really focus on conduct that's more directly 75 00:04:44,160 --> 00:04:49,000 Speaker 1: committed by United States citizens and that doesn't seem to 76 00:04:49,480 --> 00:04:53,240 Speaker 1: resonate with the language of the Alien Toward Statute at all. 77 00:04:53,400 --> 00:04:55,599 Speaker 1: And of course, the Planets in the case they look 78 00:04:55,800 --> 00:04:59,680 Speaker 1: Nestles and Cargill approved of the conduct aided and embedded 79 00:05:00,120 --> 00:05:03,080 Speaker 1: the United States shores because they're housed here, and so 80 00:05:03,200 --> 00:05:05,920 Speaker 1: therefore they should be subject to the Alien Towards Statute. 81 00:05:06,160 --> 00:05:08,640 Speaker 1: There is the one that I think is where the 82 00:05:08,680 --> 00:05:11,360 Speaker 1: Supreme Court might go. The question is what kind of 83 00:05:11,400 --> 00:05:14,799 Speaker 1: conduct or torch is against the law of nations. Clearly 84 00:05:15,000 --> 00:05:19,919 Speaker 1: slavery is clearly aiding an abetting slavery substantially is. But 85 00:05:20,120 --> 00:05:23,640 Speaker 1: what the Planets have not done is to show what 86 00:05:23,800 --> 00:05:28,920 Speaker 1: kind of men's drea or mindset is required before someone 87 00:05:29,000 --> 00:05:31,640 Speaker 1: can said to have violated the law of nations with 88 00:05:31,680 --> 00:05:35,680 Speaker 1: respective slavery. Is it that nest Lee's was negligent? Is 89 00:05:35,680 --> 00:05:39,440 Speaker 1: the question that whether Nestles was willfully blind or did 90 00:05:39,760 --> 00:05:44,080 Speaker 1: nesting actually have to know that it was purchasing chocolate 91 00:05:44,240 --> 00:05:47,560 Speaker 1: because of the fruits of child labor. The Planets have 92 00:05:47,640 --> 00:05:51,960 Speaker 1: not been very careful to ascertain what actually the accusations 93 00:05:52,000 --> 00:05:54,359 Speaker 1: are in the case. And it may be that the 94 00:05:54,400 --> 00:05:58,359 Speaker 1: Court hasn't out here by holding that yes, slaveries against 95 00:05:58,400 --> 00:06:00,720 Speaker 1: the law of nations, and yes, even aiding and abetting 96 00:06:00,760 --> 00:06:05,000 Speaker 1: slaveries against law nations, but at a minimum, the allegations 97 00:06:05,120 --> 00:06:09,640 Speaker 1: must include some evidence of complicity in terms of knowledge 98 00:06:09,920 --> 00:06:14,080 Speaker 1: that the child labor or slavery was going on, and 99 00:06:14,120 --> 00:06:16,839 Speaker 1: the plans have been pretty quiet with respect to that 100 00:06:16,920 --> 00:06:20,400 Speaker 1: kind of evidence. This Court has given corporations the rights 101 00:06:20,440 --> 00:06:23,280 Speaker 1: of individuals, So why wouldn't you be able to sue 102 00:06:23,279 --> 00:06:26,200 Speaker 1: a corporation if you can sue an individual. Well, there's 103 00:06:26,240 --> 00:06:29,400 Speaker 1: no textual basis for that distinction. However, corporations are not 104 00:06:29,560 --> 00:06:33,600 Speaker 1: recognized in terms as political actors or as legal actors 105 00:06:33,720 --> 00:06:36,560 Speaker 1: back in seventeen eighty nine when the statute was created, 106 00:06:36,600 --> 00:06:39,800 Speaker 1: so there is some kind of reason to be historically 107 00:06:39,839 --> 00:06:44,320 Speaker 1: skeptical whether Congress intended to include corporations. And it's also 108 00:06:44,360 --> 00:06:49,520 Speaker 1: true that in terms of modern international criminal tribunals, corporations 109 00:06:49,760 --> 00:06:53,200 Speaker 1: largely have been excluded. So the argument is both there's 110 00:06:53,240 --> 00:06:56,120 Speaker 1: a little bit of history and a little bit of 111 00:06:56,320 --> 00:07:01,400 Speaker 1: modern international custom which suggests that individuals should be treated 112 00:07:01,440 --> 00:07:05,440 Speaker 1: differently than corporations. Of course, from the perspective of harm, 113 00:07:05,600 --> 00:07:09,000 Speaker 1: there is no difference whatsoever whether a corporation slaves an 114 00:07:09,040 --> 00:07:13,520 Speaker 1: individual as opposed to another individual. And some of the 115 00:07:13,600 --> 00:07:20,080 Speaker 1: conservative justices even seem reluctant to completely exempt US companies. 116 00:07:20,640 --> 00:07:22,400 Speaker 1: I mean the court could go there. I would be 117 00:07:22,400 --> 00:07:25,720 Speaker 1: surprised if the Court took the ask from the US 118 00:07:25,800 --> 00:07:28,320 Speaker 1: Department of Justice, which supported net Place in this regard. 119 00:07:28,960 --> 00:07:32,040 Speaker 1: There has been a lot of concern about corporations doing 120 00:07:32,160 --> 00:07:37,560 Speaker 1: business with suppliers who are not comporting with international standards 121 00:07:37,600 --> 00:07:40,880 Speaker 1: for human rights, and the question here was one of 122 00:07:41,040 --> 00:07:45,560 Speaker 1: aiding and abetting, and Justice Brier worried about setting a 123 00:07:45,600 --> 00:07:52,160 Speaker 1: worldwide precedent by concluding that international law covers aiding and abetting. 124 00:07:52,520 --> 00:07:56,440 Speaker 1: So reason in abomination, and we all have consensus international 125 00:07:56,520 --> 00:07:59,840 Speaker 1: law condemned slavery. But as you go down the chain 126 00:08:00,280 --> 00:08:04,600 Speaker 1: of actors, it becomes more and more remote. So if 127 00:08:04,640 --> 00:08:08,320 Speaker 1: someone suspects that the product has been made in part 128 00:08:08,760 --> 00:08:13,320 Speaker 1: due to enslaved labor, are they also complicit? And they're 129 00:08:13,320 --> 00:08:16,200 Speaker 1: complicit in some moral sense, But are they complicit in 130 00:08:16,200 --> 00:08:20,000 Speaker 1: the sense of violating an international norm? If they just 131 00:08:20,160 --> 00:08:23,760 Speaker 1: have reason to believe that some of the chocolate they're 132 00:08:23,840 --> 00:08:28,760 Speaker 1: using was formed with the benefit of forced labor. What 133 00:08:28,840 --> 00:08:32,000 Speaker 1: if they're as the shipping company who just helps shift 134 00:08:32,040 --> 00:08:35,319 Speaker 1: that chocolate, maybe they know as well that some of 135 00:08:35,360 --> 00:08:38,280 Speaker 1: the chocolate was fond with the help of forced labor, 136 00:08:38,480 --> 00:08:41,320 Speaker 1: and they're just collecting normal charges. Are they also aiding 137 00:08:41,320 --> 00:08:43,920 Speaker 1: in the betting because they're shipping the chocolate? So as 138 00:08:43,960 --> 00:08:47,200 Speaker 1: you go down the line of production, the question is 139 00:08:47,320 --> 00:08:50,520 Speaker 1: it really fair to say that everybody who may be 140 00:08:50,679 --> 00:08:54,400 Speaker 1: morally responsible for having some basis of knowledge of this 141 00:08:54,480 --> 00:08:59,000 Speaker 1: forced labor really violated an international standard. It's sort of 142 00:08:59,120 --> 00:09:04,640 Speaker 1: rare or of international standards of misconduct because of that knowledge. 143 00:09:05,600 --> 00:09:10,360 Speaker 1: Overhanging this whole argument is that there's a lot of 144 00:09:10,400 --> 00:09:15,760 Speaker 1: evidence that the world's chocolate supply depends heavily on child labor. 145 00:09:16,280 --> 00:09:18,160 Speaker 1: So is it in the back of some of the 146 00:09:18,240 --> 00:09:21,160 Speaker 1: justice minds how it will look if they come out 147 00:09:21,160 --> 00:09:24,640 Speaker 1: with a decision that lets the chocolate companies off the hook. Well, 148 00:09:24,679 --> 00:09:27,760 Speaker 1: I think the issue cuts both ways in the sense 149 00:09:28,000 --> 00:09:31,560 Speaker 1: of the sort of understanding that there has been child 150 00:09:31,640 --> 00:09:35,200 Speaker 1: labor involved in the chocolate industry, because there have been 151 00:09:35,600 --> 00:09:40,440 Speaker 1: diplomatic channel and diplomatic overtures to try to limit the 152 00:09:40,600 --> 00:09:44,080 Speaker 1: use of forced labor in the production of coco. And 153 00:09:44,160 --> 00:09:48,200 Speaker 1: so some justices may say that recognizing this kind of 154 00:09:48,240 --> 00:09:52,720 Speaker 1: aiding and abetting cause of action may undermine those diplomatic aperature, 155 00:09:52,920 --> 00:09:56,040 Speaker 1: maybe even kind of productive. So on the one hand, 156 00:09:56,520 --> 00:09:59,440 Speaker 1: as you say that, the court may be wary of 157 00:09:59,520 --> 00:10:03,880 Speaker 1: trying to turn its back on very serious allegations of misconduct. 158 00:10:04,120 --> 00:10:06,720 Speaker 1: On the other hand, there has been a recognition that 159 00:10:06,800 --> 00:10:09,440 Speaker 1: this has been the systemic problem in the chocolate industry, 160 00:10:09,559 --> 00:10:12,680 Speaker 1: and there have been diplomatic missions and efforts to try 161 00:10:12,720 --> 00:10:15,240 Speaker 1: to limit it, so that the Court might be on 162 00:10:15,400 --> 00:10:18,200 Speaker 1: safe ground, and saying that recognizing a cause of action 163 00:10:18,240 --> 00:10:22,400 Speaker 1: here might undermine the diplomacy. The Chief Justice did say 164 00:10:22,440 --> 00:10:28,080 Speaker 1: that unlike previous cases involving non US corporations, no foreign 165 00:10:28,120 --> 00:10:31,800 Speaker 1: government had interfered here, No foreign government had objected here. 166 00:10:32,240 --> 00:10:35,560 Speaker 1: So something he's thinking about. Yeah, no, and it's true. 167 00:10:35,600 --> 00:10:38,400 Speaker 1: I mean, one of the ticklish parts about allowing any 168 00:10:38,440 --> 00:10:41,040 Speaker 1: kind of these international suits to be broad and United 169 00:10:41,040 --> 00:10:45,840 Speaker 1: States is the interruption of foreign affairs. But in this case, 170 00:10:45,880 --> 00:10:48,400 Speaker 1: as the Chief Justice pointed out, there has been no 171 00:10:48,640 --> 00:10:53,480 Speaker 1: sign that Ivory Coast or Molly is worried about this lawsuit. 172 00:10:53,559 --> 00:10:56,679 Speaker 1: In fact, they may favor the lawsuit continuing on its 173 00:10:56,760 --> 00:11:01,040 Speaker 1: merry way because of the injustices that have arisen. In 174 00:11:01,080 --> 00:11:04,880 Speaker 1: another context, the lawsuit can have foreign affairs repercussions, and 175 00:11:04,920 --> 00:11:08,600 Speaker 1: that's what the Department of Justice argued in papers to 176 00:11:08,640 --> 00:11:11,160 Speaker 1: the court, suggesting that the court goes very slow and 177 00:11:11,200 --> 00:11:15,160 Speaker 1: recognizing these cause of actions because according to the Department Justice, 178 00:11:15,160 --> 00:11:20,080 Speaker 1: one never knows when these private lawsuits will disrupt foreign relations. 179 00:11:20,120 --> 00:11:22,920 Speaker 1: And the third argument about mens rea, how does that 180 00:11:23,000 --> 00:11:26,040 Speaker 1: come out? In my view, I think that the pointests 181 00:11:26,240 --> 00:11:30,120 Speaker 1: are on shaky ground here because they've never stated what 182 00:11:30,320 --> 00:11:34,280 Speaker 1: is the sort of relevant mendrea with respect to nestleties. 183 00:11:34,320 --> 00:11:37,360 Speaker 1: Do nestties know that there was slavery? Did they just 184 00:11:37,440 --> 00:11:39,880 Speaker 1: turn the up blind eye to what was going on? 185 00:11:40,080 --> 00:11:43,719 Speaker 1: Where they just negligent in not asking the right questions? 186 00:11:43,800 --> 00:11:45,719 Speaker 1: And this does not suggest that rest they should be 187 00:11:45,760 --> 00:11:48,520 Speaker 1: off the hook in some moral sense. But if you 188 00:11:48,559 --> 00:11:53,520 Speaker 1: recognize just a few acts of terror that shock the conscience, 189 00:11:53,720 --> 00:11:58,440 Speaker 1: you know, piracy, murder, rape, interference with safe conduct, turning 190 00:11:58,440 --> 00:12:01,560 Speaker 1: a blind eye or or not asking the right questions 191 00:12:02,000 --> 00:12:06,600 Speaker 1: may not fall within that small category of conduct which 192 00:12:06,679 --> 00:12:10,360 Speaker 1: is reprehensible. By all civilized nation. Final question, how, how 193 00:12:10,360 --> 00:12:13,160 Speaker 1: do you think that justices will rule? So there has 194 00:12:13,240 --> 00:12:16,800 Speaker 1: been a trend about cutting down the Alien Towards statue 195 00:12:16,800 --> 00:12:21,360 Speaker 1: to an infinitesimal size, much smaller than that contemplated by 196 00:12:21,360 --> 00:12:24,200 Speaker 1: the first Congress that enacted the Alien Towards Statute, and 197 00:12:24,280 --> 00:12:27,120 Speaker 1: I predict that the Supreme Court will continue down that 198 00:12:27,200 --> 00:12:30,320 Speaker 1: path and limit the Alien Towards Statue to only a 199 00:12:30,440 --> 00:12:34,360 Speaker 1: very small number of possible cases. I don't think that 200 00:12:34,400 --> 00:12:37,640 Speaker 1: they will say that a corporation can never be a defendant, 201 00:12:37,920 --> 00:12:39,520 Speaker 1: but I do think that they will say that this 202 00:12:39,600 --> 00:12:42,760 Speaker 1: is the type of claim, this kind of negligent aiding 203 00:12:42,760 --> 00:12:45,720 Speaker 1: and abetting, which would not fall within that small number 204 00:12:45,720 --> 00:12:49,600 Speaker 1: of cases which can be cognizable under the Alien Towards Statute. 205 00:12:50,040 --> 00:12:53,160 Speaker 1: Thanks how that's Harold Grant, professor at the Chicago Kent 206 00:12:53,280 --> 00:12:57,640 Speaker 1: College of Law. Non Citizens have been counted in every 207 00:12:57,679 --> 00:13:01,680 Speaker 1: census since the first one in seven team, but President 208 00:13:01,679 --> 00:13:04,960 Speaker 1: Trump wants to do something no president has ever done 209 00:13:05,000 --> 00:13:10,040 Speaker 1: before exclude undocumented immigrants from the census count and the 210 00:13:10,080 --> 00:13:13,679 Speaker 1: Supreme Court heard arguments this week on the Trump administration's 211 00:13:13,760 --> 00:13:17,160 Speaker 1: plans for the census for the second time in two years. 212 00:13:17,800 --> 00:13:21,200 Speaker 1: Several of the justices were skeptical that Trump could exclude 213 00:13:21,240 --> 00:13:25,120 Speaker 1: illegal immigrants from the count, with Justice Stephen Bryer summing 214 00:13:25,160 --> 00:13:29,080 Speaker 1: up the reasons, and Justice Amy Coney Barrett agreeing. And 215 00:13:29,080 --> 00:13:32,560 Speaker 1: it says persons, this started in eighteen twenty, you know, 216 00:13:32,600 --> 00:13:35,520 Speaker 1: and they've always counted uh, people who were here and 217 00:13:35,960 --> 00:13:39,199 Speaker 1: not naturalized. And this has never happened before that you 218 00:13:39,320 --> 00:13:41,520 Speaker 1: included the illegal aliens. And it has a lot of 219 00:13:41,559 --> 00:13:44,880 Speaker 1: negative effects on the state. You know. All those arguments, uh, 220 00:13:44,920 --> 00:13:47,880 Speaker 1: and they're I think they're fairly strong ones. Justice me, 221 00:13:48,280 --> 00:13:50,160 Speaker 1: what do you what do you want to say their persons? 222 00:13:50,200 --> 00:13:55,720 Speaker 1: Aren't they? But if if an undocumented person has been 223 00:13:55,760 --> 00:13:58,520 Speaker 1: in the country for say twenty years, you know, even 224 00:13:58,559 --> 00:14:02,040 Speaker 1: if illegally, as you say, why would some person not 225 00:14:02,120 --> 00:14:04,400 Speaker 1: have such a person not have a settled residence here? 226 00:14:04,960 --> 00:14:08,240 Speaker 1: Some of the gealice is acknowledged the practical problem here. 227 00:14:08,520 --> 00:14:12,439 Speaker 1: The administration has no plan for identifying the illegal immigrants 228 00:14:12,480 --> 00:14:16,960 Speaker 1: it wants to exclude something. Justice Samuel Alito question Deputy 229 00:14:17,000 --> 00:14:20,560 Speaker 1: Solicitor General Jeffrey wall about can you're not provide us 230 00:14:20,560 --> 00:14:23,280 Speaker 1: with any more information than what you provided in your 231 00:14:23,320 --> 00:14:27,960 Speaker 1: answer to the Chief Justice was that basically they're working 232 00:14:28,000 --> 00:14:31,320 Speaker 1: on it. I can provide you with a little bit more. 233 00:14:31,480 --> 00:14:35,080 Speaker 1: I don't know how satisfying it will be, but I 234 00:14:35,120 --> 00:14:37,680 Speaker 1: think it is very unlikely that the Bureau will be 235 00:14:37,760 --> 00:14:42,000 Speaker 1: able to identify all or substantially all illegal aliens president 236 00:14:42,000 --> 00:14:44,680 Speaker 1: in the country, So anything like the ten or eleven 237 00:14:44,760 --> 00:14:48,240 Speaker 1: or twelve million numbers that are flying around. The administration 238 00:14:48,360 --> 00:14:50,520 Speaker 1: is in a race to finish the count and submit 239 00:14:50,560 --> 00:14:54,720 Speaker 1: the report to Congress before Joe Biden takes over the presidency, 240 00:14:54,800 --> 00:14:59,240 Speaker 1: and many gealices, including Chief Justice John Roberts, suggested the 241 00:14:59,280 --> 00:15:02,640 Speaker 1: Court might take a wait and see attitude right now 242 00:15:02,720 --> 00:15:04,560 Speaker 1: is the questions have shown. We don't know what the 243 00:15:04,600 --> 00:15:06,600 Speaker 1: Secretary is going to do. We don't know what the 244 00:15:06,640 --> 00:15:08,880 Speaker 1: President is going to do. We don't know how many 245 00:15:08,920 --> 00:15:11,680 Speaker 1: aliens will be excluded. We don't know what the effect 246 00:15:11,720 --> 00:15:15,600 Speaker 1: of that will be an apportionment um, all these questions 247 00:15:15,800 --> 00:15:20,200 Speaker 1: would be resolved if we wait until the apportionment takes place. 248 00:15:20,600 --> 00:15:23,200 Speaker 1: Joining me is Leon Fresco a partnered Holland and Knight. 249 00:15:23,800 --> 00:15:29,240 Speaker 1: Leon was there one overwriting focus of the justices questions? Well, 250 00:15:29,280 --> 00:15:33,960 Speaker 1: there are two overwriting focuses of their questions. One is 251 00:15:34,400 --> 00:15:37,440 Speaker 1: why did they need to decide the case today? And 252 00:15:37,480 --> 00:15:41,200 Speaker 1: I think there was a spoken issue and an unspoken issue. 253 00:15:41,680 --> 00:15:46,600 Speaker 1: The spoken issue was, until the Trump administration actually determined 254 00:15:46,680 --> 00:15:51,000 Speaker 1: which categories of undocumented people it wasn't going to count, 255 00:15:51,560 --> 00:15:54,560 Speaker 1: and then that analysis could be undertaken by the CORD, 256 00:15:55,080 --> 00:15:59,280 Speaker 1: it wouldn't be appropriate to actually decide this issue. But 257 00:15:59,440 --> 00:16:03,760 Speaker 1: the spoken issue was, well, maybe by the time we 258 00:16:03,920 --> 00:16:06,960 Speaker 1: get to all of this, Joe Biden will be president 259 00:16:07,360 --> 00:16:11,080 Speaker 1: and this case will just implode under itself and we 260 00:16:11,120 --> 00:16:14,480 Speaker 1: won't have to deal with this. And they didn't really 261 00:16:14,520 --> 00:16:17,080 Speaker 1: want to talk about the second because it's kind of 262 00:16:17,080 --> 00:16:19,840 Speaker 1: an unseemly thing for the Supreme Court to do. But 263 00:16:19,960 --> 00:16:22,560 Speaker 1: they were very much pushing on why they needed to 264 00:16:22,600 --> 00:16:26,280 Speaker 1: decide this case immediately. At one point, johns as Alito 265 00:16:26,400 --> 00:16:28,760 Speaker 1: talked about the fact that there could be ten and 266 00:16:28,760 --> 00:16:32,040 Speaker 1: a half a million illegal immigrants or there could be 267 00:16:32,120 --> 00:16:35,440 Speaker 1: sixty and he said he was frustrated with the posture 268 00:16:35,480 --> 00:16:39,040 Speaker 1: of the case. The problem in this case was that 269 00:16:39,080 --> 00:16:42,080 Speaker 1: the Trump administration has always does wanted to keep its 270 00:16:42,120 --> 00:16:45,720 Speaker 1: options open and has not wanted to block itself by 271 00:16:45,800 --> 00:16:48,600 Speaker 1: saying it was going to do one or another specific thing. 272 00:16:49,160 --> 00:16:52,560 Speaker 1: So what the Trump administration's demo says is it seeks 273 00:16:52,600 --> 00:16:57,240 Speaker 1: to exclude as many undocumented individuals as possible. So then 274 00:16:57,520 --> 00:17:00,320 Speaker 1: the Solicitor General was pressed by the core does that 275 00:17:00,400 --> 00:17:04,080 Speaker 1: mean DOCTA recipient? Does that mean everyone? Does that mean 276 00:17:04,160 --> 00:17:08,440 Speaker 1: only people in immigrating detention? Does that mean only people 277 00:17:08,480 --> 00:17:12,000 Speaker 1: with final orders of removal? Does that mean people with 278 00:17:12,080 --> 00:17:16,960 Speaker 1: criminal convictions or some amalgamation of people with criminal convictions 279 00:17:17,200 --> 00:17:20,720 Speaker 1: find out orders of removal and who are in immigrating detention. 280 00:17:21,160 --> 00:17:23,720 Speaker 1: And so that's why that number could be anywhere from 281 00:17:23,760 --> 00:17:27,040 Speaker 1: sixty thousands to eleven million. And so you had Justice 282 00:17:27,080 --> 00:17:29,840 Speaker 1: sort of mayor saying, look, we have to treat this 283 00:17:30,040 --> 00:17:32,919 Speaker 1: as it's eleven million, because that's what the memo says, 284 00:17:33,160 --> 00:17:35,080 Speaker 1: is we're going to try to exclude as many of 285 00:17:35,119 --> 00:17:38,159 Speaker 1: the eleven million as possible. And the a c l 286 00:17:38,240 --> 00:17:41,520 Speaker 1: U was arguing, it doesn't really matter what the number is, 287 00:17:41,920 --> 00:17:44,800 Speaker 1: because since the memo purports to want to exclude as 288 00:17:44,840 --> 00:17:49,720 Speaker 1: many undocumented individuals as possible, than any subset that you 289 00:17:49,840 --> 00:17:52,920 Speaker 1: take from that group, it's still a subset of an 290 00:17:52,920 --> 00:17:57,120 Speaker 1: illegal memo. Because the justices in general seem to agree 291 00:17:57,160 --> 00:18:00,240 Speaker 1: with the concept that you could be on document mented 292 00:18:00,320 --> 00:18:02,840 Speaker 1: in the United States and still be a resident for 293 00:18:02,880 --> 00:18:07,000 Speaker 1: the purposes of the census. Several of the justices talked 294 00:18:07,040 --> 00:18:11,080 Speaker 1: about the crunch of time here, just as Kagan said, 295 00:18:11,200 --> 00:18:14,840 Speaker 1: your thirty days out. Well, the entirety of this case 296 00:18:15,520 --> 00:18:18,280 Speaker 1: is based on the fact that there's currently an injunction 297 00:18:18,840 --> 00:18:24,399 Speaker 1: that is preventing the Trump administration from transmitting a number 298 00:18:24,600 --> 00:18:28,520 Speaker 1: of undocumented people that it seeks to exclude from the census. 299 00:18:28,600 --> 00:18:31,959 Speaker 1: So they would like to be out from under that injunction. 300 00:18:32,040 --> 00:18:34,480 Speaker 1: They in other words, they want to be able to 301 00:18:34,640 --> 00:18:39,800 Speaker 1: actually report a number of undocumented individuals and then have 302 00:18:39,920 --> 00:18:44,120 Speaker 1: a litigation about whether that number of undocumented individuals should 303 00:18:44,480 --> 00:18:48,000 Speaker 1: or shouldn't be counted in the census. That report was 304 00:18:48,040 --> 00:18:50,840 Speaker 1: originally supposed to be due by the end of this year, 305 00:18:51,400 --> 00:18:53,240 Speaker 1: and that was one of the first things that got 306 00:18:53,440 --> 00:18:57,040 Speaker 1: established was they're gonna miss their deadline. But there were 307 00:18:57,080 --> 00:19:00,080 Speaker 1: some beliefs that still they needed to get out a 308 00:19:00,160 --> 00:19:02,920 Speaker 1: under this injunction or they wouldn't be able to do 309 00:19:03,040 --> 00:19:05,879 Speaker 1: any of this process. And there was a lot of 310 00:19:05,880 --> 00:19:09,639 Speaker 1: frustration from all of the justices both with regard to 311 00:19:09,680 --> 00:19:13,040 Speaker 1: these timelines that with regard to the lack of sensificity 312 00:19:13,520 --> 00:19:16,160 Speaker 1: of who is going to be counted and for what purpose. 313 00:19:16,880 --> 00:19:20,040 Speaker 1: Leon the court is expediting this case, how fast do 314 00:19:20,040 --> 00:19:23,280 Speaker 1: you think they can get a decision out? So the 315 00:19:23,359 --> 00:19:26,520 Speaker 1: court doesn't actually need a lot of time to enter 316 00:19:26,600 --> 00:19:29,440 Speaker 1: its decision. The Court could literally enter a three line 317 00:19:29,520 --> 00:19:33,160 Speaker 1: decision today simply saying that the case is not right 318 00:19:33,280 --> 00:19:38,080 Speaker 1: for adjudication, and so break your case back again. Once 319 00:19:38,160 --> 00:19:41,320 Speaker 1: the apportionment is done. That could happen today. And if 320 00:19:41,359 --> 00:19:45,560 Speaker 1: that happened today, then the president can actually or the 321 00:19:45,560 --> 00:19:49,040 Speaker 1: administration can actually start preparing the number they want to 322 00:19:49,080 --> 00:19:53,439 Speaker 1: prepare of who's excluded from the census. So that could happen, 323 00:19:53,680 --> 00:19:57,000 Speaker 1: and in my view, that's actually the most likely event 324 00:19:57,119 --> 00:20:00,760 Speaker 1: to happen. Not so much again in I view, because 325 00:20:00,800 --> 00:20:05,800 Speaker 1: I think that's a satisfactory result, and the justices want 326 00:20:05,960 --> 00:20:09,840 Speaker 1: to not count undocument the people towards the census. But 327 00:20:09,960 --> 00:20:13,159 Speaker 1: really I think they're hopeful that if they can just 328 00:20:13,280 --> 00:20:16,600 Speaker 1: keep punting this case, it might go away and that 329 00:20:16,680 --> 00:20:19,960 Speaker 1: they won't actually have to grapple with the merits of 330 00:20:20,040 --> 00:20:23,440 Speaker 1: this case. We'll see if one of the I think 331 00:20:23,440 --> 00:20:26,199 Speaker 1: there are four justices for grappling with the merits of 332 00:20:26,240 --> 00:20:29,199 Speaker 1: the case. We'll see if one of the other justices 333 00:20:29,640 --> 00:20:32,240 Speaker 1: wants to come in and join Justice Roberts and the 334 00:20:32,320 --> 00:20:36,520 Speaker 1: three Liberals with grappling with the merits of this case. 335 00:20:36,680 --> 00:20:40,159 Speaker 1: But at the end of this day, I can foresee 336 00:20:40,359 --> 00:20:45,560 Speaker 1: some compromise occurring where the idea is come back when 337 00:20:45,720 --> 00:20:49,400 Speaker 1: a count is made, and when that count is made, 338 00:20:49,480 --> 00:20:53,040 Speaker 1: will will address, even when we have to address it, 339 00:20:53,119 --> 00:20:55,479 Speaker 1: whether that count should have excluded the people that are 340 00:20:55,520 --> 00:21:01,480 Speaker 1: being excluded. Justice any Tony Barrett said that illegal aliens 341 00:21:01,520 --> 00:21:05,560 Speaker 1: have never been excluded from the census, and then the 342 00:21:05,640 --> 00:21:09,480 Speaker 1: Acting Solicitor General said, well, that's the other side's best argument. 343 00:21:09,840 --> 00:21:14,680 Speaker 1: Does that indicate anything on her part? Well, absolutely, on 344 00:21:14,840 --> 00:21:19,640 Speaker 1: the merits of the argument, unless a very very small 345 00:21:19,800 --> 00:21:23,040 Speaker 1: number of people are going to be excluded who you 346 00:21:23,080 --> 00:21:27,680 Speaker 1: can say legitimately do not reside in the United States 347 00:21:27,800 --> 00:21:32,080 Speaker 1: because they literally have no address there in a detention facility, 348 00:21:32,520 --> 00:21:35,200 Speaker 1: and their schedules to be removed, so that that we're 349 00:21:35,240 --> 00:21:39,440 Speaker 1: talking about a few thousands people. Unless we're talking about that, 350 00:21:40,040 --> 00:21:43,200 Speaker 1: it's going to be almost impossible to get even this 351 00:21:43,320 --> 00:21:46,760 Speaker 1: court to rule that a person isn't a person, which 352 00:21:46,800 --> 00:21:49,800 Speaker 1: is what it would require for the purposes of the census. 353 00:21:49,800 --> 00:21:52,199 Speaker 1: If you're a person and you have an address in 354 00:21:52,240 --> 00:21:55,560 Speaker 1: the United States, you reside here in the United States 355 00:21:55,560 --> 00:21:58,720 Speaker 1: for the purposes of the census. And so the question 356 00:21:58,960 --> 00:22:01,960 Speaker 1: is the as the government really want to get to 357 00:22:02,000 --> 00:22:04,720 Speaker 1: the merits of this case, or are they just trying 358 00:22:04,760 --> 00:22:07,919 Speaker 1: to pump this issue to sort of give some faith 359 00:22:07,960 --> 00:22:11,679 Speaker 1: saving for this administration and then everybody can sort of 360 00:22:11,680 --> 00:22:14,960 Speaker 1: move on with this issue for a subsequent administration. And 361 00:22:15,000 --> 00:22:17,480 Speaker 1: I think that's what's going to be interesting in terms 362 00:22:17,520 --> 00:22:23,120 Speaker 1: of cobbling together a majority. Is are there five justices 363 00:22:23,320 --> 00:22:25,400 Speaker 1: that will just say, look, at the end of the day, 364 00:22:25,720 --> 00:22:29,320 Speaker 1: let's just punt this issue. And I think that's the 365 00:22:29,359 --> 00:22:32,320 Speaker 1: most likely scenario, But we'll have to wait and see 366 00:22:32,520 --> 00:22:34,960 Speaker 1: would they punt it because you know it's not right. 367 00:22:35,080 --> 00:22:38,440 Speaker 1: But there's also a standing question here. I I don't 368 00:22:38,440 --> 00:22:40,760 Speaker 1: think they're gonna say that there's a lack of standing 369 00:22:41,119 --> 00:22:44,040 Speaker 1: to bring this claim, but I do think what they'll 370 00:22:44,080 --> 00:22:48,360 Speaker 1: say is that until that there is a I mean, 371 00:22:48,400 --> 00:22:50,280 Speaker 1: it's kind of a saving claim because you haven't been 372 00:22:50,320 --> 00:22:54,200 Speaker 1: harmed yet, but it's more traditionally known as a rightness 373 00:22:54,280 --> 00:22:58,840 Speaker 1: claim in the sense that we won't know what state, 374 00:22:59,000 --> 00:23:04,560 Speaker 1: if any has long funding or apportionment until we have 375 00:23:04,640 --> 00:23:08,600 Speaker 1: some idea of who was excluded or not excluded, and 376 00:23:08,640 --> 00:23:11,760 Speaker 1: if at the end of the day, even if twelve 377 00:23:11,800 --> 00:23:16,640 Speaker 1: thousand people were excluded, but that didn't change anything in 378 00:23:16,760 --> 00:23:20,480 Speaker 1: terms of what states would get what funding, and what 379 00:23:20,720 --> 00:23:25,680 Speaker 1: states would get what uh seat in Congress. Then at 380 00:23:25,720 --> 00:23:27,880 Speaker 1: the end, who's going to be able to come forward 381 00:23:28,359 --> 00:23:31,720 Speaker 1: and bring a claim? Even an undocumented person if they 382 00:23:31,760 --> 00:23:34,359 Speaker 1: wanted to bring back claim, wouldn't be able to show 383 00:23:34,400 --> 00:23:37,040 Speaker 1: how they were harmed. And so, yes, that is sort 384 00:23:37,080 --> 00:23:39,720 Speaker 1: of a concept of sending is you can't show exactly 385 00:23:39,720 --> 00:23:43,000 Speaker 1: how your harms by not being counted in the census. 386 00:23:43,080 --> 00:23:47,119 Speaker 1: And so that certainly does become a critical issue, and 387 00:23:47,160 --> 00:23:49,719 Speaker 1: I think that will be the issue in which they 388 00:23:49,760 --> 00:23:52,480 Speaker 1: will try to punt it. But again I don't think 389 00:23:52,520 --> 00:23:56,640 Speaker 1: they would punt it ordinarily if they thought that at 390 00:23:56,680 --> 00:23:58,920 Speaker 1: the end of this the Trump administration is going to 391 00:23:59,080 --> 00:24:03,119 Speaker 1: exclude millions of people from the census. What their hope 392 00:24:03,280 --> 00:24:07,919 Speaker 1: is that either this will lead to a decision to 393 00:24:08,000 --> 00:24:11,359 Speaker 1: exclude so few people from the census that it doesn't 394 00:24:11,440 --> 00:24:14,240 Speaker 1: end up actually changing anything, so that there would be 395 00:24:14,280 --> 00:24:18,239 Speaker 1: no laws who needed or in the alternative, it at 396 00:24:18,320 --> 00:24:22,320 Speaker 1: least gets you to abideen administration and nothing ends up happening. Period. 397 00:24:23,000 --> 00:24:26,800 Speaker 1: At the very beginning of the argument, Chief Justice Robert said, 398 00:24:27,160 --> 00:24:29,879 Speaker 1: you know, this would be like unscrambling the eggs, and 399 00:24:30,520 --> 00:24:34,080 Speaker 1: the Solicitor General said, well, we do that all the time. 400 00:24:34,640 --> 00:24:37,959 Speaker 1: Explain what Chief Justice Roberts was talking about. Well, I 401 00:24:37,960 --> 00:24:43,639 Speaker 1: think see. Justice Robert's concern was once you go down 402 00:24:43,680 --> 00:24:49,760 Speaker 1: this route of excluding undocumented individuals, then you have two 403 00:24:49,800 --> 00:24:53,439 Speaker 1: sets of litigation that go on. Number one should you 404 00:24:53,480 --> 00:24:56,560 Speaker 1: have excluded the category of people that have been excluded? 405 00:24:57,000 --> 00:25:00,919 Speaker 1: And two did you get the right number? And what 406 00:25:01,080 --> 00:25:03,439 Speaker 1: he was concerned was he didn't want to have this 407 00:25:03,560 --> 00:25:07,399 Speaker 1: second litigation of did you get the right number? Because 408 00:25:07,440 --> 00:25:13,160 Speaker 1: that is a very difficult litigation. The government all the 409 00:25:13,200 --> 00:25:16,679 Speaker 1: time ends up having to give five, six, seven different 410 00:25:16,680 --> 00:25:19,960 Speaker 1: sets of statistics because they never get the right count 411 00:25:20,040 --> 00:25:22,240 Speaker 1: in the first place, and who knows if they ever 412 00:25:22,320 --> 00:25:25,119 Speaker 1: get the right count, because it's just hard no matter what, 413 00:25:25,280 --> 00:25:28,440 Speaker 1: it's not nefarious, it's just that the government turns out 414 00:25:28,480 --> 00:25:32,480 Speaker 1: to be very bad at keeping statistics. And what Justice 415 00:25:32,600 --> 00:25:35,199 Speaker 1: Roberts was saying is why do we need to go 416 00:25:35,280 --> 00:25:37,840 Speaker 1: down this route of having what I know is going 417 00:25:37,880 --> 00:25:43,879 Speaker 1: to be very unseemly and inconvenient litigation on statistics that 418 00:25:43,960 --> 00:25:47,200 Speaker 1: we know are gonna be flawed. If we can make 419 00:25:47,280 --> 00:25:51,280 Speaker 1: a larger, overarching decision that the government shouldn't be in 420 00:25:51,359 --> 00:25:55,360 Speaker 1: this business of excluding anyone from the census? Serious did 421 00:25:55,400 --> 00:25:59,560 Speaker 1: the Solicitor General say where they were going to get 422 00:25:59,640 --> 00:26:04,560 Speaker 1: the from? Well, I think he retreated to certain known 423 00:26:04,920 --> 00:26:08,320 Speaker 1: nons to use a Donald Rum sub phrase, which is 424 00:26:08,359 --> 00:26:11,600 Speaker 1: that we know how many people have orders of removal, 425 00:26:12,320 --> 00:26:15,680 Speaker 1: and we know how many people are in immigrations attention, 426 00:26:15,800 --> 00:26:20,040 Speaker 1: and we know how many people are in immigration proceedings 427 00:26:20,400 --> 00:26:24,560 Speaker 1: who have criminal convictions. And he said that worst case scenario, 428 00:26:24,680 --> 00:26:27,960 Speaker 1: at least that group should be allowed to be excluded. 429 00:26:28,680 --> 00:26:33,119 Speaker 1: And then that wasn't really debated as well, should that 430 00:26:33,200 --> 00:26:36,080 Speaker 1: be the basis of a decision, because the Trump administration 431 00:26:36,119 --> 00:26:39,320 Speaker 1: hasn't said it's only got to be these three groups. 432 00:26:39,720 --> 00:26:42,800 Speaker 1: And so that's the sort of problem in this case 433 00:26:42,840 --> 00:26:46,800 Speaker 1: where the justices started getting frustrated is maybe if it 434 00:26:46,880 --> 00:26:49,200 Speaker 1: had been limited to those three groups, and they could 435 00:26:49,240 --> 00:26:52,919 Speaker 1: actually zero in on litigation as to those three groups, 436 00:26:52,960 --> 00:26:55,720 Speaker 1: you could have a discussion as a proper or not. Now, 437 00:26:55,800 --> 00:26:57,840 Speaker 1: the a c l U attorney did say, even in 438 00:26:57,960 --> 00:27:00,879 Speaker 1: some of those groups, people will have tully win and 439 00:27:00,920 --> 00:27:05,280 Speaker 1: get out from under whatever charges being charged onto them. 440 00:27:05,600 --> 00:27:08,520 Speaker 1: And those people are in fact presidents once they finish 441 00:27:08,600 --> 00:27:11,560 Speaker 1: this process. And so you have to even in this cent, 442 00:27:12,160 --> 00:27:16,920 Speaker 1: count some portion and say, look, babe, of these individuals 443 00:27:16,960 --> 00:27:22,240 Speaker 1: win on average. And so you would only tecent let's say, 444 00:27:22,280 --> 00:27:26,879 Speaker 1: as undocumented. And so this becomes such a logistical nightmare 445 00:27:27,520 --> 00:27:30,960 Speaker 1: that no matter how you're doing it, it's hard to 446 00:27:31,000 --> 00:27:34,840 Speaker 1: say it's appropriate account x number of people. But it 447 00:27:34,920 --> 00:27:38,400 Speaker 1: becomes even worse in this case because the Trump administration 448 00:27:38,520 --> 00:27:41,879 Speaker 1: wasn't even willing to give a category of people that 449 00:27:41,960 --> 00:27:45,760 Speaker 1: it felt was appropriate to exclude as opposed to include, 450 00:27:46,320 --> 00:27:49,240 Speaker 1: rather than just saying, well, it could be all the undocumented, 451 00:27:49,600 --> 00:27:52,800 Speaker 1: or it could be some segment of the undocumented. And 452 00:27:53,040 --> 00:27:56,680 Speaker 1: so the New York Times report last week that Census 453 00:27:56,680 --> 00:28:00,200 Speaker 1: Bureau officials have told the Commerce Department they can't who's 454 00:28:00,280 --> 00:28:04,760 Speaker 1: the state population totals until after Trump leaves office. So 455 00:28:04,840 --> 00:28:10,439 Speaker 1: then is all this just moot? Well, that's what the 456 00:28:10,600 --> 00:28:14,159 Speaker 1: underlying current of these arguments are. That's what that's what 457 00:28:14,359 --> 00:28:18,720 Speaker 1: the unsaid portion of today's argument was if at the 458 00:28:18,800 --> 00:28:21,680 Speaker 1: end of the day, do we really need to have 459 00:28:21,760 --> 00:28:25,760 Speaker 1: this debate about whether you can count undocumented folks or not. 460 00:28:26,560 --> 00:28:28,160 Speaker 1: If at the end of the day, this is all 461 00:28:28,160 --> 00:28:30,960 Speaker 1: gonna be boot because Biden will get to this before 462 00:28:31,440 --> 00:28:34,920 Speaker 1: any damage is done. And I think if this depends 463 00:28:34,920 --> 00:28:36,879 Speaker 1: where you come down on this, I think there are 464 00:28:36,920 --> 00:28:40,920 Speaker 1: a number of justices, certainly uh Briar and so of 465 00:28:41,000 --> 00:28:45,320 Speaker 1: Major and Kagan who definitely would have wanted and would 466 00:28:45,360 --> 00:28:48,760 Speaker 1: want just to get a president on record saying this 467 00:28:48,840 --> 00:28:53,040 Speaker 1: is agregious stump and it shouldn't happen in this country 468 00:28:53,080 --> 00:28:56,080 Speaker 1: and we should count people, and people are people and 469 00:28:56,200 --> 00:29:00,880 Speaker 1: the story. But I just don't know where that's gonna 470 00:29:00,960 --> 00:29:04,240 Speaker 1: fall with the other six justices in this court. And 471 00:29:04,520 --> 00:29:07,040 Speaker 1: I can just really see them wanting to find some 472 00:29:07,200 --> 00:29:11,160 Speaker 1: offer ramp that does the lease amount of damage possible. 473 00:29:11,600 --> 00:29:14,760 Speaker 1: And so the off ramp might be what the d 474 00:29:14,840 --> 00:29:19,480 Speaker 1: C three judge panel did correct. The off ramp would 475 00:29:19,480 --> 00:29:21,880 Speaker 1: be that they come back to us when there is 476 00:29:21,920 --> 00:29:25,920 Speaker 1: an exact number of people excluded for exact reasons, and 477 00:29:25,960 --> 00:29:28,520 Speaker 1: then we can have that debate about whether somebody was 478 00:29:28,720 --> 00:29:32,680 Speaker 1: armed and whether anybody lost feat or funding because of this, 479 00:29:33,240 --> 00:29:36,240 Speaker 1: but for now we don't know, and so now is 480 00:29:36,240 --> 00:29:39,840 Speaker 1: not the time to be having this discussion at the 481 00:29:39,920 --> 00:29:42,800 Speaker 1: court because we don't know if anyone's actually been hardened yet. 482 00:29:43,360 --> 00:29:45,840 Speaker 1: Thanks for being on the Bloomberg Lass early on. That's 483 00:29:45,920 --> 00:29:48,920 Speaker 1: Leon Fresco, a partner at Hollanden Knight. And that's it 484 00:29:49,000 --> 00:29:52,160 Speaker 1: for the sedition of the Bloomberg Law Show. I'm June Grosso. 485 00:29:52,320 --> 00:29:54,640 Speaker 1: Thanks so much for listening. You can always get the 486 00:29:54,680 --> 00:29:57,600 Speaker 1: latest legal news on our Bloomberg Law Podcast. You can 487 00:29:57,680 --> 00:30:02,080 Speaker 1: find them on iTunes, SoundCloud, or an www dot bloomberg 488 00:30:02,200 --> 00:30:06,160 Speaker 1: dot com slash podcast Slash Law. And remember to catch 489 00:30:06,200 --> 00:30:08,960 Speaker 1: the Bloomberg Law Show every weeknight. It's m damn Eastern 490 00:30:09,320 --> 00:30:10,760 Speaker 1: right here on Bloomberg Radio.