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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash Podcasts. Another five to

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Speaker 1: four decision down ideological lines from the Supreme Court in

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Speaker 1: its final day of the term. Labor unions lost and

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Speaker 1: the Trump administration one, as the Court ruled that government

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Speaker 1: employees have a constitutional right not to pay union fees,

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Speaker 1: overturning forty years of precedent. Joining me is Bloomberg New

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Speaker 1: Supreme Court reporter Greg's store. Greg tell us about the opinion, Hi, Junior,

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Speaker 1: as you said? Five to four. Justice Samilader wrote the

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Speaker 1: majority opinion, excuse me for the conservative um. He said

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Speaker 1: that when unions take positions in collective bargaining, they are

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Speaker 1: taking positions on matter of public concern, and for that reason,

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Speaker 1: workers have a First Amendment right not to contribute to

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Speaker 1: that work of the union, even though the union is

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Speaker 1: doing things that might also benefit the workers. Justice Elena

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Speaker 1: Kagan wrote for the minority in opinion with some fervor.

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Speaker 1: She said there's no sugarcoat in today's opinion. The majority

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Speaker 1: overthrows a decision entrenched in this nation's law and its

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Speaker 1: economic life for over forty years. Tell us about what

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Speaker 1: she talked about that overthrowing of the about decision. Yeah,

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Speaker 1: the Aboud decision in nineteen seventy seven ruling that said

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Speaker 1: that public sector unions could collect one are known as

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Speaker 1: the agency thieves UH from non members, from employees who say,

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Speaker 1: I don't want to belong to the union, but the

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Speaker 1: union could still require them to pay for the cost

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Speaker 1: of collective bargaining. That seven ruling did put some limits,

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Speaker 1: said that workers don't have to fund ideological or political activities.

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Speaker 1: And the Supreme Court today said that was a bad decision.

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Speaker 1: We are throwing it out. And Injustice Kagan's dissent, she said,

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Speaker 1: this is going to have the dramatic consequences for the

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Speaker 1: ability of governments to manage their workplaces. Um, they might,

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Speaker 1: she said, lose the ability to have a single union

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Speaker 1: that they know represents all the all the workers in

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Speaker 1: the in the workforce. Um. And there could be all

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Speaker 1: sorts of consequences that that we're going to have to

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Speaker 1: learn about down the road. Gregg This really really wasn't

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Speaker 1: a surprise. It wasn't like the travel ban because of

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Speaker 1: the history of this case. Tell us about that history. Yeah,

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Speaker 1: this was This was how the most expected decision of

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Speaker 1: the term. Aldo. It took a while to get it out.

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Speaker 1: The Court had been considering this issue a couple of

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Speaker 1: years ago when Justice Scalia was on the court, and

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Speaker 1: it looked like they were poised to issue a decision

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Speaker 1: much like this, a five four decision that would have

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Speaker 1: overturned the boot and said workers have every speech right

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Speaker 1: not to pay these fees. Uh. And then Scalia died

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Speaker 1: and the Court ended up splitting evenly four to four

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Speaker 1: in that case. So once uh, Donald Trump was able

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Speaker 1: to fill that vacancy with with Justice Neil Gorsage, the

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Speaker 1: Conservatives had their fifth vote. The Court agreed this term

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Speaker 1: to take up this case, and uh, you know, the

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Speaker 1: only hope for for the liberals seemed to be winning

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Speaker 1: over Justice Coursers, who of course is a rather conservative

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Speaker 1: conservative justice. And uh indeed he did what was expected

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Speaker 1: and join the Conservatives to overturn the about decision. There

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Speaker 1: are a series of five to four victories for Conservatives

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Speaker 1: this term, and several controversial cases like yesterday's travel Band.

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Speaker 1: You wrote a story analyzing this entitled when it comes

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Speaker 1: to Donald Trump, The U. S. Supreme Court apparently is

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Speaker 1: as divided as the rest of the country. Tell me

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Speaker 1: about the analysis you went through there. Yeah, well so

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Speaker 1: I'm still looking into this today. Obviously, the Trump travel

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Speaker 1: band decision divides the court five to four. You have

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Speaker 1: the five Republican appointed justices on one side, the four

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Speaker 1: UH Democratic appointed justices on the other time. And uh,

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Speaker 1: this is a pattern that has dominated this this term. Um,

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Speaker 1: we haven't had any of those cases where just as

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Speaker 1: Anthony Kennedy joins the Liberals in a in a five

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Speaker 1: for UH majority. So on the travel ban, on the

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Speaker 1: Union fees, UH, the the American Express an I trust case,

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Speaker 1: the the other day UH Texas Voting District UH jurymandering

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Speaker 1: case the court decided earlier this week, the case involving

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Speaker 1: in an abortion pregnancy centers. I mean, the list goes

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Speaker 1: on and on, the very important cases that were decided

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Speaker 1: by that that single vote. Greg you mentioned Justice Kennedy,

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Speaker 1: who was this, you know, the swing vote and seen

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Speaker 1: as the swing vote. And he's everyone says he might

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Speaker 1: be retiring. We don't know if you you will or not.

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Speaker 1: Probably not right today, but as of now know okay,

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Speaker 1: So is he getting more conservative in his thinking or

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Speaker 1: is it just the kinds of cases that are facing

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Speaker 1: the court. A big part of it was the kind

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Speaker 1: of cases so um uh you know, one, if I

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Speaker 1: didn't mention the case involving arbitration agreements signed by employees,

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Speaker 1: Justice Kennedy joined the majority to say that companies can

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Speaker 1: enforce those arbitration agreements and prevent workers from from uh

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Speaker 1: filing class action lawsuits. Well, that's that's the kind of

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Speaker 1: issue that the Court is dealt with repeatedly. We know

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Speaker 1: that Justice Kennedy is with the conservatives on that. Um.

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Speaker 1: The biggest surprise this term from Justice Kennedy, I think

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Speaker 1: was that in some of those cases where liberals sometimes

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Speaker 1: can can get him on their side, uh, the case

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Speaker 1: involving the baker who uh didn't want to make cakes

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Speaker 1: for same sex weddings, uh, the cases involving partisan jerrymandry,

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Speaker 1: those seem like at least opportunities for the liberals to

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Speaker 1: to to uh, to persuade Justice Kennedy to be on

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Speaker 1: their side, and those could have been significant victories for

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Speaker 1: the left. Both of those issues that the Court essentially punted,

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Speaker 1: didn't come out with anything big on the in the

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Speaker 1: cases that mattered. It was. It was the cases where

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Speaker 1: Kennedy was with the Conservatives where the Court had ended

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Speaker 1: up doing something big. All right, Greg, a much deserve

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Speaker 1: vacation coming up for you. Thank you so much for

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Speaker 1: all your reporting this term. That's Bloomberg News Supreme Court

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Speaker 1: report at Greg's store. Attorney General Jeff Sessions held firm

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Speaker 1: over the Trump administration zero tolerance immigration policy at a

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Speaker 1: law enforcement conference in Nevada on Monday. The President has

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Speaker 1: made this clear. We're going to continue to prosecute those

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Speaker 1: adults who in a here illegally. We are going to

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Speaker 1: do everything in our power, however, to avoid separating families.

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Speaker 1: Sessions now has no choice whether he feels it's in

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Speaker 1: his power or not. A California federal judge has given

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Speaker 1: the Trump administration two weeks to reunite immigrant children under

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Speaker 1: the age of five who were separated from their families

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Speaker 1: at border crossings, and thirty days is to reunite children

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Speaker 1: five and older. Judge Danis Abra has also ordered the

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Speaker 1: administration to stop detaining parents without their children and to

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Speaker 1: stop deporting parents who have been separated from their children,

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Speaker 1: joining me as Lorie Nessel, director of the Center for

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Speaker 1: Social Justice at Seton Hall University School of Law. Laurie.

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Speaker 1: The judge blamed the Trump administration. Tell us how he

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Speaker 1: described what he called the chaotic circumstance. Sure, I mean

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Speaker 1: the situation, um, you know, which has gotten a lot

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Speaker 1: of coverage, is that children were being torn away from

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Speaker 1: their parents at the border. And um, you know, as

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Speaker 1: as also has been made publicly available, is that children

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Speaker 1: have gotten lost by a margin the system. It was

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Speaker 1: a you know, an attempt to criminalize all immigrants, asylum

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Speaker 1: seekers at the southern border, take their children away as

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Speaker 1: a means of trying to deter people and send a

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Speaker 1: message that they shouldn't be coming to this country, even

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Speaker 1: if they fear for their lives. And it was done

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Speaker 1: in such a way that there's been incredible anguish and

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Speaker 1: trauma and and thousands of children, many of whom are

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Speaker 1: unaccounted for. And the judge also said that the government

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Speaker 1: hasn't as an affirmative duty to reunite parents with their children.

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Speaker 1: But he also pointed out that the government takes account

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Speaker 1: of property all the time of defendants and cases and

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Speaker 1: never loses the property. How did they lose the children? Right? Well? Well,

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Speaker 1: and what this really raises is that, I mean, these

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Speaker 1: are human beings, right, and they're coming to our country

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Speaker 1: largely to seek protection from an incredibly dangerous conditions in

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Speaker 1: their home country, and we do the government has an obligation,

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Speaker 1: both under international law and under our immigration laws to

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Speaker 1: treat people with dignity and to provide them in a

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Speaker 1: humane way with the chance to seek protection. They don't

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Speaker 1: have to be granted protection, but they have to be

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Speaker 1: allowed to seek protection. And so by um doing away

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Speaker 1: with any form of discretion and completely criminalizing this population,

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Speaker 1: what's happened is that it just you know, we've seen

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Speaker 1: this in so many other instances with this administration. Things

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Speaker 1: are not thought out or or planned. It's just an

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Speaker 1: announcement that's made and then there there. It wasn't done

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Speaker 1: with the proper agencies, and it wasn't clear what was

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Speaker 1: happening to these children where they were being sent, who

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Speaker 1: was ultimately responsible. Um, you know, it's it's an incredible, incredible, um,

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Speaker 1: you know, crisis and really dark moment in our history

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Speaker 1: that that this has happened, and it's happening. So what

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Speaker 1: happens now that the judge and the judge said he

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Speaker 1: felt that he needed to issue an order. Now he

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Speaker 1: has this order which is pretty stark as to what

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Speaker 1: has to happen. But will the government be able to

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Speaker 1: do that? Well, that that's a good question. I mean,

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Speaker 1: so there is now, like you say, there's an order,

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Speaker 1: there's a very set amount of time in order to

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Speaker 1: reunify these traumatized children with their traumatized parents. UM. But yeah,

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Speaker 1: it's going to take some work in terms of tracking

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Speaker 1: them down. I know that um lots of the not

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Speaker 1: for profit organizations around the country are UM really pitching

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Speaker 1: in in terms of trying to get information and interview

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Speaker 1: kids and locate and um, you know, making efforts to

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Speaker 1: try to make sure that families can be reunited. The

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Speaker 1: judge was very specific in his order. He said that

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Speaker 1: in his decision as well. He said that it's not

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Speaker 1: enough that the government gives out eight hundred numbers that

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Speaker 1: don't answer. They have to make an affirmative They have

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Speaker 1: an affirmative duty to actually reunite the families. And that's

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Speaker 1: more than the government has accepted in the past. Exactly,

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Speaker 1: and and and I mean what that points to is that,

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Speaker 1: I mean, this is the family separation is um, you know,

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Speaker 1: is horrific, but it comes on top of a system

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Speaker 1: that already has so many problems and where there's just

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Speaker 1: a lack of basic fairness throughout. So, for example, a

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Speaker 1: big part of the problem is that there's no right

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Speaker 1: to have a lawyer if you can't afford one in

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Speaker 1: these proceedings. And as we know, the President has recently said, well,

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Speaker 1: let's not even give them any due process, Let's not

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Speaker 1: have people even go before a judge before they're deported.

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Speaker 1: And so it all really comes together to make this

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Speaker 1: incredibly chaotic situation. Because if there were an orderly process,

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Speaker 1: if there were more immigration judges, another thing that the

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Speaker 1: administration has been against doing, increasing the number of immigration judges,

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Speaker 1: if there was a right to have a lawyer presence

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Speaker 1: so that these people, both the adults and their children

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Speaker 1: could understand what's at sake, UM, then there would be

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Speaker 1: much easier to reunite, much easier to do things in

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Speaker 1: the proper way. But the problem now is that all

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Speaker 1: of those pieces come together and create this storm where

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Speaker 1: we have this this humanitarian crisis of lost children. So

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Speaker 1: Lorie in light of the judge's order, can the Trump

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Speaker 1: administration continue with the zero tolerance policy or does the

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Speaker 1: judges order actually circumvent that well, So so there there

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Speaker 1: there are a couple of different pieces of litigation. The

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Speaker 1: the injunction that was issued today UM is specific to

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Speaker 1: saying that the UM that the governments can't detain parents

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Speaker 1: without their children unless there's a finding that the parents

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Speaker 1: are unfit or opposed danger. And then as you mentioned,

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Speaker 1: there's the specific time frames for the need to reunify. However,

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Speaker 1: the injunction and again it's just the injunction, the case

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Speaker 1: will go forward, UM, doesn't doesn't go as far as

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Speaker 1: to say that the entire process has to sub or

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Speaker 1: that families can't be detained. Now, there is other litigation. UM.

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Speaker 1: There is a lawsuit UM the eighteen different states across

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Speaker 1: the country joined in that was filed yesterday UM, and

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Speaker 1: we'll have to see what happens with with that litigation.

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Speaker 1: Because that UM that request auto release in terms of

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Speaker 1: really asking for UM, the whole criminalization and denying asylum

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Speaker 1: secrets a chance to seek protection being joined a minute here,

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Speaker 1: President Trump has made the distinction at times between families

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Speaker 1: crossing into the US illegally between checkpoints and those who

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Speaker 1: are requesting asylum at the border crossings. But the judge

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Speaker 1: didn't make that distinction. What do you what's your reaction

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Speaker 1: to that right? Because the and and that it's a

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Speaker 1: problem that that what should happen is that again, under

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Speaker 1: under our law, domestic law as well as international law,

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Speaker 1: anyone that's seeking protection should be given that right to

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Speaker 1: seek protection. But because the administration has been completely undermining

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Speaker 1: that legal right, it's impossible to tell then who's in

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Speaker 1: need of protection, who's coming for economic reasons or some

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Speaker 1: mix um. But the issue is that you know that

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Speaker 1: according to this injunction, everyone who wants to seek protection,

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Speaker 1: who came here because our lives in danger, should be

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Speaker 1: given the opportunity to do that. Well, then, Laurie, we'll

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Speaker 1: have to leave it there. There's so much to discuss

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Speaker 1: on this topic because there is a lot of confusion.

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Speaker 1: That's Lori Nestle. She's directed the Center for Social Justice

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Speaker 1: at Seton Hall University School of Law. Thanks for listening

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Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen

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Speaker 1: to the show on Apple Podcasts, SoundCloud, and on Bloomberg

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Speaker 1: dot com. Slash Podcast. I'm June Brosso. This is Bloomberg