1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:06,559 --> 00:00:10,640 Speaker 1: If the avalanche of lawsuits over voting by mail seems overwhelming, 3 00:00:10,720 --> 00:00:13,320 Speaker 1: now just wait for the lawyers to get to work 4 00:00:13,360 --> 00:00:17,560 Speaker 1: on election day. President Trump has been repeating unproven claims 5 00:00:17,600 --> 00:00:21,160 Speaker 1: about mail in ballots for months now. Democrats are trying 6 00:00:21,200 --> 00:00:24,360 Speaker 1: to reach the election. Left wing judges and governors are 7 00:00:24,440 --> 00:00:27,400 Speaker 1: changing the rules just weeks before the election. These ballots 8 00:00:27,440 --> 00:00:31,400 Speaker 1: are a disaster. They are a total, complete disaster. So, 9 00:00:31,480 --> 00:00:35,520 Speaker 1: barring a landslide, many legal experts expect a second wave 10 00:00:35,560 --> 00:00:38,960 Speaker 1: of lawsuits after the election. Joining me is Rebecca Green, 11 00:00:39,080 --> 00:00:41,479 Speaker 1: a professor at William and Mary Law School and co 12 00:00:41,640 --> 00:00:45,839 Speaker 1: director of the Election Law Program. There are an unprecedented 13 00:00:45,960 --> 00:00:51,040 Speaker 1: number of election cases before the election. Will most of 14 00:00:51,080 --> 00:00:54,520 Speaker 1: those be resolved by election day or will they still 15 00:00:54,560 --> 00:00:58,560 Speaker 1: be litigated? So it's a great question and first point 16 00:00:58,600 --> 00:01:01,360 Speaker 1: to make about the volume of election litigation that we've 17 00:01:01,400 --> 00:01:04,640 Speaker 1: seen so far is number one, that's unprecedented. UM, We've 18 00:01:04,640 --> 00:01:07,480 Speaker 1: definitely never seen as high of a volume of litigation 19 00:01:08,080 --> 00:01:10,920 Speaker 1: between the primary and general election. UM. But that's not 20 00:01:11,120 --> 00:01:14,720 Speaker 1: terribly surprising given that we're in a sort of once 21 00:01:14,760 --> 00:01:17,120 Speaker 1: in a hundred year pandemic. UM. And most of that 22 00:01:17,240 --> 00:01:22,760 Speaker 1: litigation has involved accommodating voters and election officials because of 23 00:01:22,800 --> 00:01:26,600 Speaker 1: the pandemic. So UM, I think, you know, the first 24 00:01:26,600 --> 00:01:28,680 Speaker 1: thing to say is that it's unprecedented. The second thing 25 00:01:28,720 --> 00:01:31,919 Speaker 1: to say is that it's not a bug of our system. 26 00:01:31,959 --> 00:01:35,800 Speaker 1: It's actually a future And it's really, in some sense 27 00:01:36,040 --> 00:01:39,319 Speaker 1: a good thing that so much litigation has occurred, in 28 00:01:39,360 --> 00:01:42,679 Speaker 1: the sense that it's evidence that our system is working 29 00:01:42,880 --> 00:01:45,120 Speaker 1: and that when problems are confronted, we have to be 30 00:01:45,240 --> 00:01:48,920 Speaker 1: resolution processes to address them. So in other words, UM, 31 00:01:48,920 --> 00:01:50,680 Speaker 1: it's not a it's not a problem, it's actually just 32 00:01:50,760 --> 00:01:53,240 Speaker 1: the function that the system working as it should. And 33 00:01:53,280 --> 00:01:56,120 Speaker 1: I guess the third thing to say is that, um, 34 00:01:56,200 --> 00:01:59,840 Speaker 1: we should feel very lucky uh that um, we are 35 00:01:59,880 --> 00:02:02,560 Speaker 1: not being hit with the pandemic to the degree that 36 00:02:02,600 --> 00:02:05,600 Speaker 1: we were, um, just prior to the primaries in our 37 00:02:05,640 --> 00:02:08,960 Speaker 1: general election, UM, where many many more people vote and 38 00:02:08,960 --> 00:02:12,640 Speaker 1: obviously UM, you know, more as at stake. So that 39 00:02:12,800 --> 00:02:14,720 Speaker 1: is to say that all of the litigation that we've 40 00:02:14,720 --> 00:02:17,000 Speaker 1: seen so far has ironed out a lot of the 41 00:02:17,080 --> 00:02:20,520 Speaker 1: kinks and resolved a lot of the problems of running elections. 42 00:02:20,639 --> 00:02:23,480 Speaker 1: During the pandemic. Uh, And so we should be sort 43 00:02:23,520 --> 00:02:27,360 Speaker 1: of in that sense grateful that, UM, that we've gotten 44 00:02:27,440 --> 00:02:30,640 Speaker 1: so many of these issues, We've gotten clarity on many 45 00:02:30,639 --> 00:02:34,120 Speaker 1: of these issues prior to the election. So I think, UM, 46 00:02:34,120 --> 00:02:36,880 Speaker 1: In sort of more directly answering your question, UM, I 47 00:02:36,880 --> 00:02:39,160 Speaker 1: think most of this litigation will be resolved in the 48 00:02:39,120 --> 00:02:41,520 Speaker 1: advance of the election, and certainly courts have a mandate 49 00:02:41,600 --> 00:02:44,120 Speaker 1: to do so, you know, to make sure that the 50 00:02:44,240 --> 00:02:46,480 Speaker 1: rules are in place as far in advance of elections 51 00:02:46,480 --> 00:02:50,440 Speaker 1: as they can. UM. And so I think, UM, I 52 00:02:50,480 --> 00:02:54,040 Speaker 1: think most of the litigation that we're seeing raising around 53 00:02:54,040 --> 00:02:55,760 Speaker 1: the country and what we've seen over the last few 54 00:02:55,800 --> 00:02:58,040 Speaker 1: months will affect to be resolved. UM. But that's not 55 00:02:58,120 --> 00:03:01,919 Speaker 1: to say, of course that there won't be continuing litigation, UM, 56 00:03:01,960 --> 00:03:04,720 Speaker 1: as we approach election day, that there won't be election 57 00:03:04,800 --> 00:03:07,120 Speaker 1: day litigation. And then certainly of course that there will 58 00:03:07,200 --> 00:03:10,800 Speaker 1: most certainly be post election litigation as well. That was 59 00:03:10,840 --> 00:03:13,400 Speaker 1: my next question, the fact that we have all this 60 00:03:13,480 --> 00:03:17,440 Speaker 1: litigation now and as you mentioned, the pandemic, do you 61 00:03:17,520 --> 00:03:23,760 Speaker 1: expect to have an unprecedented amount of post election lawsuits. Well, 62 00:03:23,800 --> 00:03:27,120 Speaker 1: it's hard to say about unprecedented. I do think that 63 00:03:27,320 --> 00:03:30,520 Speaker 1: pressures on the system. So where you typically see a 64 00:03:30,520 --> 00:03:35,040 Speaker 1: lot of post election litigation involved U two categories of ballots. First, 65 00:03:35,280 --> 00:03:39,119 Speaker 1: provisional ballots. Those are ballots that people cast when they 66 00:03:39,240 --> 00:03:41,240 Speaker 1: are told that for one reason or another, they're not 67 00:03:41,280 --> 00:03:42,680 Speaker 1: on the rolls, or they are you know, in the 68 00:03:42,720 --> 00:03:45,120 Speaker 1: wrong precinct, or or there's a disagreement about whether the 69 00:03:45,160 --> 00:03:49,000 Speaker 1: person is eligible to vote. Federal law requires that those 70 00:03:49,040 --> 00:03:53,600 Speaker 1: people be handed a provisional ballot and UM. Then they have, 71 00:03:53,840 --> 00:03:56,160 Speaker 1: you know, a certain amount of time to sort of 72 00:03:56,200 --> 00:03:58,920 Speaker 1: prove that they were in fact eligible UM, and the 73 00:03:59,280 --> 00:04:01,840 Speaker 1: state has to kind of go through a post election 74 00:04:01,880 --> 00:04:05,720 Speaker 1: process and administrative process to decide whether to count or 75 00:04:05,720 --> 00:04:08,240 Speaker 1: not count those provisional ballots. And so there's an administrative 76 00:04:08,240 --> 00:04:11,839 Speaker 1: process for that, and just like there's an an administrative 77 00:04:11,880 --> 00:04:14,880 Speaker 1: process for ABS and T ballots. So when you state 78 00:04:14,920 --> 00:04:17,080 Speaker 1: receives the ABS and ballot, there's a process that they 79 00:04:17,160 --> 00:04:20,839 Speaker 1: go through to verify that it's UM from the person 80 00:04:20,839 --> 00:04:23,000 Speaker 1: who sent it in and that that all those sort 81 00:04:23,000 --> 00:04:25,560 Speaker 1: of boxes are checked UM. In other words, that do 82 00:04:25,640 --> 00:04:27,479 Speaker 1: they have their address on their did they sign it 83 00:04:27,520 --> 00:04:29,640 Speaker 1: properly if they needed a witness signature? Is that on 84 00:04:29,680 --> 00:04:32,520 Speaker 1: there those kinds of things. So there's these administrative processes, 85 00:04:32,920 --> 00:04:38,159 Speaker 1: and often when elections are close, UM, election litigators look 86 00:04:38,240 --> 00:04:42,040 Speaker 1: to provisional and absent tee ballots to determine, you know, 87 00:04:42,040 --> 00:04:45,119 Speaker 1: whether or not they can find UM ones that should 88 00:04:45,120 --> 00:04:47,800 Speaker 1: have been counted that weren't or ones that were counted 89 00:04:47,800 --> 00:04:50,400 Speaker 1: that shouldn't have been counted, and so UM that tends 90 00:04:50,440 --> 00:04:53,200 Speaker 1: to drive a lot of post election litigation when elections 91 00:04:53,200 --> 00:04:57,480 Speaker 1: are closed. So because of the nature of running an 92 00:04:57,480 --> 00:05:00,400 Speaker 1: election during a pandemic and all of them issues that 93 00:05:00,440 --> 00:05:03,479 Speaker 1: have arisen, especially with the dramatic increase that's expected in 94 00:05:03,600 --> 00:05:06,680 Speaker 1: absentee balloting. UM, I think it's fair to say that 95 00:05:06,880 --> 00:05:10,479 Speaker 1: that it's likely that there will be more post election litigation. 96 00:05:10,800 --> 00:05:13,560 Speaker 1: But I guess the caveat there is that typically there 97 00:05:13,640 --> 00:05:17,600 Speaker 1: isn't election litigation when there is what's referred to as 98 00:05:17,800 --> 00:05:19,920 Speaker 1: no margin of litigation. That is to say, if it's 99 00:05:19,920 --> 00:05:23,279 Speaker 1: not close, um, you know it's it's it's it's less 100 00:05:23,320 --> 00:05:27,080 Speaker 1: likely that litigation will occur if it's a blowout, for example. 101 00:05:27,360 --> 00:05:29,280 Speaker 1: So I think a lot of people are looking at 102 00:05:29,320 --> 00:05:31,760 Speaker 1: that that question and sort of you know, the closer 103 00:05:31,839 --> 00:05:34,320 Speaker 1: it is, the more litigation you can expect can we 104 00:05:34,360 --> 00:05:39,560 Speaker 1: expect litigation in any event from President Trump in light 105 00:05:39,640 --> 00:05:43,760 Speaker 1: of the things that he's been saying about malin balloting 106 00:05:44,240 --> 00:05:47,800 Speaker 1: causing massive fraud and that if he doesn't win, he 107 00:05:47,839 --> 00:05:50,920 Speaker 1: doesn't know if he can trust the outcome. So can 108 00:05:51,040 --> 00:05:55,520 Speaker 1: we expect? Well? I think, UM, it's important to UM 109 00:05:55,800 --> 00:06:01,000 Speaker 1: remember that it courts and we've seen this already in litigation. UM. 110 00:06:01,440 --> 00:06:05,600 Speaker 1: You know, in this sort of pre election litigation already, M, 111 00:06:05,640 --> 00:06:09,640 Speaker 1: which is that courts are very consistent in requiring provable 112 00:06:09,720 --> 00:06:12,760 Speaker 1: facts and evidence to show that there's been a statutory 113 00:06:12,800 --> 00:06:16,520 Speaker 1: or constitutional violation of state or federal law before they're 114 00:06:16,560 --> 00:06:20,000 Speaker 1: willing to entertain a case. And so UM, you know, 115 00:06:20,040 --> 00:06:23,600 Speaker 1: if if if President Trump UM and his attorneys are 116 00:06:23,640 --> 00:06:28,120 Speaker 1: able to point to evidence of fraud or problems in 117 00:06:28,160 --> 00:06:32,480 Speaker 1: the absentee voting context, for example, UM, then you know 118 00:06:32,560 --> 00:06:35,360 Speaker 1: that that is absolutely something that should be litigated and 119 00:06:35,400 --> 00:06:37,719 Speaker 1: that evidence should be examined. And you know that that 120 00:06:37,720 --> 00:06:40,320 Speaker 1: that is how our system works. UM. But if if 121 00:06:40,320 --> 00:06:43,039 Speaker 1: the facts aren't there, if the evidence isn't there, you 122 00:06:43,080 --> 00:06:47,120 Speaker 1: know a court will not entertain that UM allegation. UM. 123 00:06:47,160 --> 00:06:49,600 Speaker 1: You know again, if evidence doesn't exist, So I think 124 00:06:49,640 --> 00:06:51,359 Speaker 1: that's going to be the real question is whether or 125 00:06:51,360 --> 00:06:54,440 Speaker 1: not you know, he's he's certainly been suggesting that there 126 00:06:54,480 --> 00:06:58,280 Speaker 1: are lots of problems with absent voting and that there 127 00:06:58,279 --> 00:07:01,040 Speaker 1: will be fraud. But um, in a lotus seeking Marshal's 128 00:07:01,080 --> 00:07:03,800 Speaker 1: evidence to show that that's actually happened. Um, I don't 129 00:07:03,800 --> 00:07:07,080 Speaker 1: think he'll get far in court. And any attack President 130 00:07:07,120 --> 00:07:10,200 Speaker 1: Trump makes on the election that would have to be 131 00:07:10,240 --> 00:07:15,720 Speaker 1: a state by state case or attack, correct. So so yeah, 132 00:07:15,920 --> 00:07:18,160 Speaker 1: it's kind of hard to get your head around. But 133 00:07:18,200 --> 00:07:21,520 Speaker 1: you know, America doesn't have a single presidential elections that 134 00:07:22,120 --> 00:07:26,280 Speaker 1: we have elections in every state, um, and so so yeah, 135 00:07:26,320 --> 00:07:28,320 Speaker 1: you wouldn't be able to sort of challenge that presidential 136 00:07:28,360 --> 00:07:31,160 Speaker 1: election national. You'd have to bring that litigation in states. 137 00:07:31,200 --> 00:07:34,280 Speaker 1: And those states would be following in some cases federal 138 00:07:34,360 --> 00:07:35,920 Speaker 1: law and the sense that they have to comply with 139 00:07:36,200 --> 00:07:40,600 Speaker 1: federal requirements. But the vast majority of requirements in elections 140 00:07:40,680 --> 00:07:43,760 Speaker 1: in this country comes from state law. So in those 141 00:07:43,800 --> 00:07:46,920 Speaker 1: state laws are you know, they have their own ecosystems 142 00:07:47,040 --> 00:07:51,400 Speaker 1: and very distinct from one another. So usually what happens is, um, 143 00:07:51,440 --> 00:07:55,040 Speaker 1: you know, election experts in the states. So the litigators 144 00:07:55,040 --> 00:07:57,280 Speaker 1: who are experts on the state's election law will pick 145 00:07:57,400 --> 00:08:01,400 Speaker 1: up cases at the state level because because the laws 146 00:08:01,400 --> 00:08:04,600 Speaker 1: so arcane in this field. Bush Gore is the case 147 00:08:04,720 --> 00:08:08,240 Speaker 1: that's mentioned over and over again because anyone who went 148 00:08:08,280 --> 00:08:12,080 Speaker 1: through it you remember just hanging on every chad, so 149 00:08:12,160 --> 00:08:15,480 Speaker 1: to speak. So is there any likely that there will 150 00:08:15,480 --> 00:08:19,640 Speaker 1: be another Bush v. Gore? So, you know, the reason 151 00:08:19,680 --> 00:08:24,480 Speaker 1: why Bush versus Gore was such an extraordinary case is 152 00:08:24,520 --> 00:08:30,080 Speaker 1: that the tally came down to vote, which is extraordinary that, 153 00:08:30,240 --> 00:08:33,600 Speaker 1: you know, the deciding state from an electoral vote count 154 00:08:33,800 --> 00:08:36,240 Speaker 1: matter came down to a state where the vote was 155 00:08:36,280 --> 00:08:40,680 Speaker 1: that close. So that is a pretty extraordinary circumstance. And 156 00:08:40,880 --> 00:08:43,520 Speaker 1: it's always the case that there are close elections. Um, 157 00:08:43,559 --> 00:08:46,040 Speaker 1: you know, I'm speaking to you from Virginia, where we 158 00:08:46,080 --> 00:08:48,120 Speaker 1: had an election that was so close that that victor 159 00:08:48,240 --> 00:08:51,360 Speaker 1: had to be drawn from a hat. So it's not 160 00:08:51,440 --> 00:08:55,600 Speaker 1: rare to have close elections, but to have the series 161 00:08:55,600 --> 00:09:00,319 Speaker 1: of circumstances that aligned to produce Bush versus Score occur 162 00:09:00,400 --> 00:09:03,600 Speaker 1: again would be quite extraordinary. So, you know, never say never, 163 00:09:03,640 --> 00:09:07,280 Speaker 1: but it's only going to be that kind of Bush 164 00:09:07,320 --> 00:09:11,280 Speaker 1: bee core level scenario if in fact, um we're talking 165 00:09:11,320 --> 00:09:13,679 Speaker 1: about a state where it's as close and where that 166 00:09:13,840 --> 00:09:17,439 Speaker 1: state is um, you know, pivotal to the outcome. The 167 00:09:17,559 --> 00:09:24,000 Speaker 1: possible scenario for there being no election lawsuits after the 168 00:09:24,080 --> 00:09:28,080 Speaker 1: election would be an overwhelming vote for one candidate or 169 00:09:28,120 --> 00:09:31,319 Speaker 1: the other. Yeah, so, I mean usually the way this 170 00:09:31,360 --> 00:09:36,600 Speaker 1: works is, you know, candidates won't bring claims uh, you know, 171 00:09:36,640 --> 00:09:40,040 Speaker 1: and expend resources. And indeed, in some cases, in most cases, 172 00:09:40,040 --> 00:09:43,480 Speaker 1: state law won't allow um a recount that if the 173 00:09:43,559 --> 00:09:46,880 Speaker 1: outcome isn't you know close, you know. So for example, 174 00:09:46,960 --> 00:09:49,240 Speaker 1: some states have laws that say there can be no 175 00:09:49,320 --> 00:09:52,320 Speaker 1: recount unless there is the vote is closed by x 176 00:09:52,360 --> 00:09:56,040 Speaker 1: percent one percent, for example. And so it is the 177 00:09:56,120 --> 00:10:00,880 Speaker 1: case that UM, if the candidate believes a political party 178 00:10:00,960 --> 00:10:04,640 Speaker 1: believes that the number of votes that are contested, So 179 00:10:04,720 --> 00:10:07,400 Speaker 1: for example, UM, you know, let's say that a vote 180 00:10:07,440 --> 00:10:09,920 Speaker 1: was um, you know, a hundred thousand votes. You know, 181 00:10:10,280 --> 00:10:12,840 Speaker 1: the candidate won by a hundred thousand votes. If the 182 00:10:12,920 --> 00:10:15,920 Speaker 1: candidate who lost by a hundred thousand votes believes that 183 00:10:16,000 --> 00:10:19,760 Speaker 1: there are, for example, you know, two hundred thousand fraudulent votes, 184 00:10:20,120 --> 00:10:23,520 Speaker 1: then that candidate could contest the results saying, you know 185 00:10:23,640 --> 00:10:26,360 Speaker 1: that that the outcome would change had it not been 186 00:10:26,400 --> 00:10:28,679 Speaker 1: for these fraudulent votes. But they're not going to get 187 00:10:28,720 --> 00:10:33,200 Speaker 1: anywhere in litigation unless they can produce evidence that supports, 188 00:10:33,640 --> 00:10:35,720 Speaker 1: you know, a finding that there has been in fact 189 00:10:36,080 --> 00:10:38,960 Speaker 1: um that much thought. So, in other words, unless you 190 00:10:38,960 --> 00:10:41,280 Speaker 1: have the evidence to prove that you have an outcome 191 00:10:41,320 --> 00:10:45,760 Speaker 1: determinative number of problems UM in terms of the ballots 192 00:10:45,800 --> 00:10:48,960 Speaker 1: that have encountered, then you're going to not get foreign litigation, 193 00:10:49,000 --> 00:10:50,440 Speaker 1: if that makes sense. And I think it's fair to 194 00:10:50,440 --> 00:10:54,440 Speaker 1: say also that UM in a blowout situation without that 195 00:10:54,520 --> 00:10:56,839 Speaker 1: kind of evidence, I don't think anyone would. I don't 196 00:10:56,880 --> 00:10:59,439 Speaker 1: think any court would entertain the losses that where there 197 00:10:59,440 --> 00:11:02,000 Speaker 1: just wasn't the proof needed to show that the outcome 198 00:11:02,040 --> 00:11:06,800 Speaker 1: was incorrect. Still do the president's statements make it hard 199 00:11:06,880 --> 00:11:11,000 Speaker 1: to predict whether there will be litigation because he's used 200 00:11:11,000 --> 00:11:14,080 Speaker 1: the courts as refuge time and time again to drag 201 00:11:14,200 --> 00:11:18,480 Speaker 1: things out. So even if you don't have a verifiable 202 00:11:18,520 --> 00:11:22,800 Speaker 1: claim acclaim with proof, you could still slow down the process, 203 00:11:22,920 --> 00:11:26,120 Speaker 1: can't you. Yeah, I mean there's no doubt that you 204 00:11:26,160 --> 00:11:29,920 Speaker 1: know that the a judicatory process for determining whether um, 205 00:11:30,040 --> 00:11:32,640 Speaker 1: you know, weighing evidence and determining whether it's you know, 206 00:11:32,920 --> 00:11:36,600 Speaker 1: provable facts exist that can't take time, and that does 207 00:11:36,679 --> 00:11:40,559 Speaker 1: require courts and fact finders, you know, and administrative processes 208 00:11:40,600 --> 00:11:42,520 Speaker 1: for that matter, to kind of go through carefully to 209 00:11:42,559 --> 00:11:44,240 Speaker 1: make sure that things are right. And so I think 210 00:11:44,720 --> 00:11:47,400 Speaker 1: very likely that there will be you know, this has 211 00:11:47,440 --> 00:11:49,760 Speaker 1: been a headline for for weeks now. You know that 212 00:11:49,840 --> 00:11:52,800 Speaker 1: we we shouldn't necessarily expect a decision um or an 213 00:11:52,800 --> 00:11:56,000 Speaker 1: outcome on election night. You know, administrative and potentially judicial 214 00:11:56,000 --> 00:11:59,120 Speaker 1: process you may take time, but again, if there is 215 00:11:59,360 --> 00:12:02,400 Speaker 1: evidence that there's been a problem, courts will take that 216 00:12:02,440 --> 00:12:05,680 Speaker 1: seriously and take their time in you know, addressing that issue, 217 00:12:05,760 --> 00:12:08,439 Speaker 1: like happened in Florida for example, where it wasn't a 218 00:12:08,520 --> 00:12:11,440 Speaker 1: question about fraud. It was this question obviously right with 219 00:12:11,480 --> 00:12:14,199 Speaker 1: the butterfly ballot and ballot design, but the idea was 220 00:12:14,280 --> 00:12:16,200 Speaker 1: that it took along time to kind of sort through 221 00:12:16,520 --> 00:12:19,080 Speaker 1: the counting process or the recounting process in that case. 222 00:12:19,280 --> 00:12:21,920 Speaker 1: So it's very possible that there could be administrative for 223 00:12:22,160 --> 00:12:26,560 Speaker 1: judicial delays sort of as a result of whatever happens um. 224 00:12:26,600 --> 00:12:29,400 Speaker 1: But in a presidential election, of course, there are hard 225 00:12:29,400 --> 00:12:32,600 Speaker 1: and fast deadlines that are set by federal law and 226 00:12:32,640 --> 00:12:36,319 Speaker 1: so um courts we are cognizant of those deadlines and 227 00:12:36,800 --> 00:12:40,040 Speaker 1: try to ensure that their processes fall within those deadlines. 228 00:12:40,640 --> 00:12:44,200 Speaker 1: In other words, that courts require provable facts, um they 229 00:12:44,240 --> 00:12:47,000 Speaker 1: require evidence, and unless that evidence exists, there's not going 230 00:12:47,040 --> 00:12:49,600 Speaker 1: to be There's going to be no there there. Thanks 231 00:12:49,600 --> 00:12:52,439 Speaker 1: for being on the Boomberg Launchow, Rebecca. That's Professor Rebecca 232 00:12:52,520 --> 00:12:55,160 Speaker 1: Green of William and Mary Law School, co director of 233 00:12:55,160 --> 00:12:58,720 Speaker 1: the Election Law Program. That the Supreme Court agreed to 234 00:12:58,720 --> 00:13:02,280 Speaker 1: hear two appeals from US and Trump's administration over immigration 235 00:13:02,360 --> 00:13:05,520 Speaker 1: related policies. The new cases come on top of one 236 00:13:05,559 --> 00:13:08,640 Speaker 1: that Justice is accepted on Friday to determine whether the 237 00:13:08,640 --> 00:13:13,439 Speaker 1: Trump can exclude undocumented immigrants from the census counts, joining 238 00:13:13,480 --> 00:13:17,080 Speaker 1: Eas Leon Fresco a partnered Hollandon Night. So the court 239 00:13:17,200 --> 00:13:23,680 Speaker 1: has taken now three big immigration related cases. What's your take, Well, 240 00:13:23,679 --> 00:13:26,560 Speaker 1: what's interesting about the three cases is the timing of 241 00:13:26,640 --> 00:13:30,760 Speaker 1: the cases, which is that none of these cases potentially 242 00:13:30,880 --> 00:13:36,520 Speaker 1: could survive a Biden administration, and Biden is elective, and 243 00:13:36,720 --> 00:13:41,080 Speaker 1: so what will be fascinating is either these cases will 244 00:13:41,120 --> 00:13:45,520 Speaker 1: sort of solidify a fee change in immigration law moving 245 00:13:45,559 --> 00:13:48,560 Speaker 1: forward under a President Trump and a six to three 246 00:13:48,640 --> 00:13:52,760 Speaker 1: card or they'll just feed are out and these policies 247 00:13:52,800 --> 00:13:56,160 Speaker 1: won't be implemented, and they will be at no moment. 248 00:13:56,240 --> 00:13:59,120 Speaker 1: And so that's what's fascinating about the timing of these 249 00:13:59,120 --> 00:14:02,200 Speaker 1: cases is that they really set up either one of 250 00:14:02,200 --> 00:14:06,720 Speaker 1: those two outcomes. Let's start with the census case. What 251 00:14:06,840 --> 00:14:10,520 Speaker 1: does President Trump want to do? So President Trump had 252 00:14:10,640 --> 00:14:13,320 Speaker 1: two goals with regard to the census. The first and 253 00:14:13,400 --> 00:14:16,440 Speaker 1: his most important goal was he was trying to not 254 00:14:16,800 --> 00:14:22,840 Speaker 1: count people with unlawful status or quasi immigration status is 255 00:14:23,000 --> 00:14:27,600 Speaker 1: in the census because he believed that by counting those individuals, 256 00:14:28,080 --> 00:14:33,280 Speaker 1: certain states that were more advantageous to Democrats would get 257 00:14:33,480 --> 00:14:38,480 Speaker 1: more representation than states that were more advantageous Republican. So 258 00:14:38,600 --> 00:14:41,840 Speaker 1: that was his first goal. And then the second goal 259 00:14:42,520 --> 00:14:45,760 Speaker 1: was to speed up the accounts of the census because 260 00:14:45,800 --> 00:14:49,520 Speaker 1: some of the states lagging behind had been states that 261 00:14:49,600 --> 00:14:54,120 Speaker 1: were more traditionally represented by Democrats than some of the 262 00:14:54,160 --> 00:14:57,520 Speaker 1: states who had not been lagging behind. So because of that, 263 00:14:57,720 --> 00:15:01,480 Speaker 1: he had tried to shorten the time from which he 264 00:15:01,560 --> 00:15:05,200 Speaker 1: had agreed he would collect census data, which was supposed 265 00:15:05,200 --> 00:15:08,360 Speaker 1: to be until October thirty one, and he wanted to 266 00:15:08,400 --> 00:15:11,520 Speaker 1: shorten that time until the end of September and what 267 00:15:11,640 --> 00:15:14,280 Speaker 1: ended up happening. It ended up going through mid months 268 00:15:14,280 --> 00:15:18,000 Speaker 1: of October because of the various litigation that happened. Tell 269 00:15:18,080 --> 00:15:21,400 Speaker 1: us what the three judge panel based its decision on. 270 00:15:21,480 --> 00:15:24,880 Speaker 1: The three judge panels said that the Trump administration couldn't 271 00:15:24,920 --> 00:15:28,360 Speaker 1: do this. The three judge panel decided that it was 272 00:15:28,480 --> 00:15:33,760 Speaker 1: unlawful for the President to exclude undocumented immigrants from the 273 00:15:33,800 --> 00:15:37,680 Speaker 1: census because the way that the Constitution is written, it's 274 00:15:37,720 --> 00:15:41,520 Speaker 1: written as persons, and when the Constitution wants to count 275 00:15:41,520 --> 00:15:44,880 Speaker 1: citizens or something else, if it's talking about citizens, it 276 00:15:44,960 --> 00:15:48,640 Speaker 1: refers to citizens. And when it refers to person, it 277 00:15:48,760 --> 00:15:52,400 Speaker 1: refers to person. And so no matter what interpretation you're 278 00:15:52,400 --> 00:15:56,640 Speaker 1: gonna use about what the original enumeration clause meant in 279 00:15:56,680 --> 00:16:00,080 Speaker 1: the Constitution, it meant counting every human being was in 280 00:16:00,160 --> 00:16:04,040 Speaker 1: the United States. And the judges also said that it 281 00:16:04,080 --> 00:16:07,920 Speaker 1: would violate a separate requirement that the Commerce Secretary send 282 00:16:07,960 --> 00:16:12,600 Speaker 1: the President a single set of numbers derived from the census. Yes, 283 00:16:12,680 --> 00:16:15,400 Speaker 1: that's correct as well, which is that at the end 284 00:16:15,440 --> 00:16:20,160 Speaker 1: of the day, the the Commerce Secretary. The problem is 285 00:16:20,280 --> 00:16:23,280 Speaker 1: there's sort of this feeling that there's this black box 286 00:16:23,560 --> 00:16:26,200 Speaker 1: of how this is going to get calculated, and they're 287 00:16:26,400 --> 00:16:30,800 Speaker 1: the Justice Department was not willing to provide a clear 288 00:16:30,880 --> 00:16:33,640 Speaker 1: answer as to how they were going to get to 289 00:16:33,720 --> 00:16:38,160 Speaker 1: the count that excluded undocumented individuals. And so because there 290 00:16:38,280 --> 00:16:42,720 Speaker 1: is a provision that requires the Sensive Bureau to provide 291 00:16:43,240 --> 00:16:46,560 Speaker 1: one count to the President, that also would be violated. 292 00:16:46,560 --> 00:16:49,400 Speaker 1: You're correct about referencing that. Let's talk about the timmy 293 00:16:49,520 --> 00:16:53,800 Speaker 1: because the argument is scheduled for November. Obviously, the decision 294 00:16:53,840 --> 00:16:56,640 Speaker 1: comes after that, and the Commerce Secretary has to send 295 00:16:56,680 --> 00:17:00,400 Speaker 1: the numbers in by December thirty one, So how can 296 00:17:00,440 --> 00:17:03,680 Speaker 1: they accomplish that unless you are they starting to figure 297 00:17:03,720 --> 00:17:08,320 Speaker 1: out the undocumented immigrant numbers already. Well, so what's fascinating 298 00:17:08,359 --> 00:17:10,760 Speaker 1: about this is this was an issue that was in 299 00:17:10,840 --> 00:17:13,719 Speaker 1: dispute in the other census case, which is that the 300 00:17:13,800 --> 00:17:18,119 Speaker 1: Census Administration had already said that they had no chance 301 00:17:18,160 --> 00:17:20,840 Speaker 1: of being able to meet the December thirty one deadline, 302 00:17:21,160 --> 00:17:24,400 Speaker 1: and that had been said repeatedly and on numerous occasions, 303 00:17:25,040 --> 00:17:28,000 Speaker 1: and now the Department of Justice had changed its mind 304 00:17:28,000 --> 00:17:30,280 Speaker 1: and said, no, give us a chance at least to 305 00:17:30,400 --> 00:17:33,640 Speaker 1: meet the December thirty one deadline. So nobody knows if 306 00:17:33,640 --> 00:17:36,600 Speaker 1: this deadline will be mad or not mad, and nobody 307 00:17:36,640 --> 00:17:38,840 Speaker 1: knows how that number is going to be derived of 308 00:17:38,960 --> 00:17:42,359 Speaker 1: who's undocumented. The only things that have been discussed so 309 00:17:42,520 --> 00:17:45,600 Speaker 1: far are counting the amount of people that are in 310 00:17:45,680 --> 00:17:49,560 Speaker 1: ice facilities and at least the new things that But 311 00:17:49,640 --> 00:17:52,400 Speaker 1: if that's literally what we're talking about, we're talking about 312 00:17:52,440 --> 00:17:55,959 Speaker 1: maybe twenty thirty thousand people, and so that's not going 313 00:17:56,000 --> 00:17:58,560 Speaker 1: to make a difference of anything. And that seems to 314 00:17:58,600 --> 00:18:01,920 Speaker 1: be a lot of way some resources for no good reason. 315 00:18:02,480 --> 00:18:06,359 Speaker 1: And so the question is really what other modes of 316 00:18:06,400 --> 00:18:09,720 Speaker 1: operations are they going to try to do to discount 317 00:18:09,760 --> 00:18:13,480 Speaker 1: undocumented people. And really there's this other question of who 318 00:18:13,600 --> 00:18:17,879 Speaker 1: is undocumented, because are you undocumented on a specific day, 319 00:18:18,000 --> 00:18:20,440 Speaker 1: because a lot of people are in between status is 320 00:18:20,800 --> 00:18:24,040 Speaker 1: their status has expired, but they're applying for a renewal 321 00:18:24,119 --> 00:18:26,320 Speaker 1: of their status with U s c i S and 322 00:18:26,440 --> 00:18:28,680 Speaker 1: that can take months, and a lot of people are 323 00:18:28,720 --> 00:18:32,399 Speaker 1: waiting to fix their status the marriage applications, and so 324 00:18:32,520 --> 00:18:35,520 Speaker 1: this question is not a simple question at all as 325 00:18:35,520 --> 00:18:38,520 Speaker 1: to what it actually means to be undocumented. The court 326 00:18:38,600 --> 00:18:40,720 Speaker 1: is likely going to be different when this is heard, 327 00:18:40,840 --> 00:18:44,639 Speaker 1: because any Coney Barrett will most likely be on the court. 328 00:18:45,160 --> 00:18:49,480 Speaker 1: Can we read anything into the courts October thirteenth order 329 00:18:49,680 --> 00:18:53,800 Speaker 1: that left the Trump administration and the census count more 330 00:18:53,840 --> 00:18:58,879 Speaker 1: than two weeks early. Well, I think the the Court 331 00:18:59,040 --> 00:19:03,359 Speaker 1: is inclined to give broad deference to the president here 332 00:19:04,000 --> 00:19:08,439 Speaker 1: on how the president operates the census. And so I 333 00:19:08,480 --> 00:19:11,000 Speaker 1: think from that standpoint, even though there was the case 334 00:19:11,080 --> 00:19:13,639 Speaker 1: that Justice Roberts had been a part of at that 335 00:19:13,840 --> 00:19:18,840 Speaker 1: time too uh not allow the citizenship questions to be 336 00:19:18,880 --> 00:19:22,000 Speaker 1: asked on the census, that's a different question than the 337 00:19:22,080 --> 00:19:27,000 Speaker 1: operation of when the census was going to be actually completed, 338 00:19:27,560 --> 00:19:30,640 Speaker 1: and that sort of the sensatory scheme there does give 339 00:19:31,040 --> 00:19:35,720 Speaker 1: very very broad uh difference. And in fact, the thing 340 00:19:35,840 --> 00:19:38,760 Speaker 1: is that the case ended up going. The census count 341 00:19:38,840 --> 00:19:41,880 Speaker 1: ended up going much longer than it was originally supposed 342 00:19:41,920 --> 00:19:44,800 Speaker 1: to go. It was extended because of COVID, and the 343 00:19:44,840 --> 00:19:48,359 Speaker 1: other thing that had changed slightly was that the count 344 00:19:48,640 --> 00:19:51,840 Speaker 1: by mid October when this decision had come out, were 345 00:19:51,840 --> 00:19:54,399 Speaker 1: in the very high nineties in terms of count. It 346 00:19:54,560 --> 00:19:58,240 Speaker 1: was it was very unclear how much more juice was 347 00:19:58,280 --> 00:20:00,920 Speaker 1: going to be left into squeeze these out of these 348 00:20:00,960 --> 00:20:04,920 Speaker 1: additional days. Because we were talking high nineties in all 349 00:20:05,040 --> 00:20:07,280 Speaker 1: the parts of the United States, and so I think 350 00:20:07,320 --> 00:20:10,520 Speaker 1: for those reasons is why the Court lifts in the state. 351 00:20:10,600 --> 00:20:13,280 Speaker 1: So I don't know that that gets us anywhere with 352 00:20:13,320 --> 00:20:16,400 Speaker 1: regards to the ultimate question as to who gets counted 353 00:20:16,480 --> 00:20:19,520 Speaker 1: as part of the census. I'm wondering if the originalists 354 00:20:19,600 --> 00:20:22,320 Speaker 1: on the Court, if they're going to be looking at 355 00:20:22,400 --> 00:20:27,399 Speaker 1: the words in the Constitution, whether that may make a 356 00:20:27,560 --> 00:20:31,400 Speaker 1: good argument against what the Trump administration wants to do. 357 00:20:32,520 --> 00:20:36,959 Speaker 1: Right absolutely, when this executive order first came out, pretty 358 00:20:37,040 --> 00:20:41,280 Speaker 1: much every legal expert from all walks of life, conservative 359 00:20:41,280 --> 00:20:44,720 Speaker 1: and liberal, thought that this case would be very flimsy. 360 00:20:45,200 --> 00:20:47,440 Speaker 1: So it is a bit surprising that we are here 361 00:20:47,480 --> 00:20:50,920 Speaker 1: at the Supreme Court. But it also happens because when 362 00:20:50,960 --> 00:20:54,120 Speaker 1: the federal government asked the Supreme Court to review something, 363 00:20:54,640 --> 00:20:57,000 Speaker 1: there is a lot of difference that's given there. If 364 00:20:57,040 --> 00:20:59,160 Speaker 1: it doesn't happen all the time, but it happens most 365 00:20:59,200 --> 00:21:02,320 Speaker 1: of the time, And so we are where we are 366 00:21:02,440 --> 00:21:06,040 Speaker 1: where this might end up being reviewed. Although, of course 367 00:21:06,160 --> 00:21:10,520 Speaker 1: I think if if the Vice President Biden wins in November, 368 00:21:11,040 --> 00:21:14,960 Speaker 1: then maybe that November oral argument uh takes a lot 369 00:21:15,040 --> 00:21:18,119 Speaker 1: less importance. Or get three schedules or something else. So 370 00:21:18,280 --> 00:21:23,280 Speaker 1: we'll we'll see the court takes cases because they want 371 00:21:23,280 --> 00:21:27,960 Speaker 1: to overrule they don't want in place the federal Appellate 372 00:21:27,960 --> 00:21:30,600 Speaker 1: Court decision. So in this case, that would mean the 373 00:21:30,680 --> 00:21:34,600 Speaker 1: court took the case to overrule the three judge panel 374 00:21:34,680 --> 00:21:37,840 Speaker 1: which voted against the Trump administration. Yes, that is the 375 00:21:37,880 --> 00:21:41,600 Speaker 1: conventional wisdom that that's what would occur in a normal 376 00:21:41,640 --> 00:21:44,320 Speaker 1: case like this, which is that the only reason is 377 00:21:44,359 --> 00:21:46,560 Speaker 1: that the only reason that the case would have been 378 00:21:46,600 --> 00:21:51,600 Speaker 1: taken would have been to overturn the Second Circuit decision. 379 00:21:52,080 --> 00:21:54,639 Speaker 1: But here that might not be the case, because this 380 00:21:54,680 --> 00:21:58,199 Speaker 1: issue is such a case of national importance that the 381 00:21:58,240 --> 00:22:01,040 Speaker 1: court might just have taken it because the federal government 382 00:22:01,080 --> 00:22:03,879 Speaker 1: wanted then to take it, and that this might be 383 00:22:03,920 --> 00:22:06,479 Speaker 1: an issue that would come up in other decades as well, 384 00:22:06,920 --> 00:22:09,960 Speaker 1: and so they would take it. But at the end 385 00:22:10,040 --> 00:22:14,159 Speaker 1: of the day, I just I just don't know why 386 00:22:14,320 --> 00:22:16,240 Speaker 1: that the Free Court would have taken it if they 387 00:22:16,240 --> 00:22:19,760 Speaker 1: thought it was a completely frivolous argument. So for anyone 388 00:22:19,800 --> 00:22:22,879 Speaker 1: to say it's likely that the Trump administration will lose, 389 00:22:23,400 --> 00:22:26,240 Speaker 1: I think is maybe getting too far ahead of them. 390 00:22:26,240 --> 00:22:29,560 Speaker 1: So if Biden does win, the count is in by 391 00:22:29,560 --> 00:22:33,880 Speaker 1: December thirty one. He's not in office until January. So 392 00:22:34,400 --> 00:22:36,560 Speaker 1: what difference does it make if Biden wins if the 393 00:22:36,640 --> 00:22:40,640 Speaker 1: count is already in Well, that's a good question, and 394 00:22:40,720 --> 00:22:42,840 Speaker 1: I think it will just depend on a do they 395 00:22:42,840 --> 00:22:46,160 Speaker 1: get the count in in time? Be are there legal 396 00:22:46,240 --> 00:22:49,520 Speaker 1: challenges which I think would happen to that count, and 397 00:22:49,560 --> 00:22:53,399 Speaker 1: then see could then as a result of those legal challenges, 398 00:22:53,880 --> 00:22:59,159 Speaker 1: a settlement be reached where the Biden administration actually performs 399 00:22:59,160 --> 00:23:04,880 Speaker 1: account that doesn't include, uh, this reduction in undocumented individuals, 400 00:23:04,880 --> 00:23:08,119 Speaker 1: If that makes sense. So that's how I think it would. 401 00:23:08,400 --> 00:23:11,119 Speaker 1: That's how I think it would end up playing out, 402 00:23:11,640 --> 00:23:15,919 Speaker 1: is you would have accounts that would that would potentially 403 00:23:15,960 --> 00:23:19,800 Speaker 1: exclude people. Then you would have some other lawsuits that 404 00:23:19,920 --> 00:23:22,520 Speaker 1: was put in just to be a placeholder, and then 405 00:23:22,560 --> 00:23:26,359 Speaker 1: you'd have a settlement to that lawsuit that ultimately said 406 00:23:26,400 --> 00:23:29,760 Speaker 1: we aren't gonna county the we aren't going to exclude 407 00:23:29,760 --> 00:23:32,520 Speaker 1: the undocumented from this census. And that's how it would 408 00:23:32,600 --> 00:23:35,520 Speaker 1: end up playing out. Okay, So today the Supreme Court 409 00:23:35,680 --> 00:23:39,480 Speaker 1: agreed to hear two other cases related to immigration. One 410 00:23:39,600 --> 00:23:43,040 Speaker 1: the clash over Trump's use of two point five billion 411 00:23:43,080 --> 00:23:46,359 Speaker 1: dollars in Pentagon funds to build the wall, and the 412 00:23:46,480 --> 00:23:50,120 Speaker 1: Supreme Court cleared Trump to start using the money and 413 00:23:50,160 --> 00:23:54,000 Speaker 1: refuse to revisit it. What's your take on this, Well, 414 00:23:54,040 --> 00:23:56,080 Speaker 1: I mean, this case has a been in an interesting 415 00:23:56,119 --> 00:23:59,639 Speaker 1: posture because that money has been basically spent, and the 416 00:23:59,720 --> 00:24:03,160 Speaker 1: wall all has been you know, to the extent that 417 00:24:03,400 --> 00:24:05,800 Speaker 1: you would call it constructed at least in terms of 418 00:24:05,800 --> 00:24:09,000 Speaker 1: those funds. That horse has already left the barns. And 419 00:24:09,080 --> 00:24:12,000 Speaker 1: so this is just about two sorts of housekeeping issues. 420 00:24:12,000 --> 00:24:15,120 Speaker 1: Which is number one, Well, you still have this Ninth 421 00:24:15,160 --> 00:24:19,960 Speaker 1: Circuit President that says that using those national emergency funds 422 00:24:20,000 --> 00:24:23,520 Speaker 1: in that manner is illegal. So the idea would be 423 00:24:23,600 --> 00:24:27,000 Speaker 1: to wipe that off the book so that that wouldn't 424 00:24:27,000 --> 00:24:28,800 Speaker 1: happen if the president wanted to do it in a 425 00:24:28,840 --> 00:24:32,960 Speaker 1: subsequent year. And then of course there's the issue of 426 00:24:33,440 --> 00:24:36,840 Speaker 1: allowing the president to do this in subsequent years. And 427 00:24:36,920 --> 00:24:40,160 Speaker 1: so both of those are the reasons why the Court 428 00:24:40,200 --> 00:24:43,560 Speaker 1: needed to get involved there, because if that Ninth Circuit 429 00:24:43,600 --> 00:24:46,399 Speaker 1: President had just stayed there, even though there was a 430 00:24:46,520 --> 00:24:50,560 Speaker 1: stay of this litigation, there might not have been a 431 00:24:50,600 --> 00:24:53,919 Speaker 1: stay of a subsequent litigation of a subsequent effort that 432 00:24:54,040 --> 00:24:58,680 Speaker 1: tried to use again Defense Department money to build the wall. 433 00:24:58,720 --> 00:25:04,240 Speaker 1: So what happens if Biden wins and the administration drops 434 00:25:04,280 --> 00:25:07,359 Speaker 1: the case, then the Ninth Circuit decision is still on 435 00:25:07,440 --> 00:25:11,159 Speaker 1: the books. Potentially, yes, that that could be how it 436 00:25:11,280 --> 00:25:14,520 Speaker 1: ends up working. And if that works, then a future 437 00:25:15,280 --> 00:25:18,840 Speaker 1: attempt by a future Republican administration to try to do 438 00:25:18,960 --> 00:25:22,639 Speaker 1: something like this would be thwarted unless the court issued 439 00:25:22,720 --> 00:25:27,240 Speaker 1: another say of such a decision next time. Is something 440 00:25:27,280 --> 00:25:30,480 Speaker 1: like that would happen? Is it a simple matter to 441 00:25:30,560 --> 00:25:35,760 Speaker 1: drop the case? If Biden wins, absolutely, they can say, look, 442 00:25:35,800 --> 00:25:38,720 Speaker 1: we are no longer going to continue with this policy 443 00:25:38,760 --> 00:25:42,359 Speaker 1: of diverting funds, and so this case is now mood 444 00:25:42,400 --> 00:25:44,520 Speaker 1: and we won't do it. And then the question would 445 00:25:44,520 --> 00:25:49,480 Speaker 1: be at that point if the governments, because here in 446 00:25:49,520 --> 00:25:51,680 Speaker 1: the in this case, the government is actually the one 447 00:25:51,960 --> 00:25:56,440 Speaker 1: doing the appeal. If the government does the appeal and 448 00:25:56,480 --> 00:25:59,000 Speaker 1: the government is the one dropping its own appeal, is 449 00:25:59,040 --> 00:26:00,880 Speaker 1: able to do it. If the other side had done 450 00:26:00,880 --> 00:26:04,480 Speaker 1: the appeal and the government was was trying to drop 451 00:26:04,520 --> 00:26:06,480 Speaker 1: the case, they could say, well, this could be likely 452 00:26:06,840 --> 00:26:08,600 Speaker 1: to come up again, and so we don't want to 453 00:26:08,600 --> 00:26:11,560 Speaker 1: moot out this case. But here, the Sierra Club and 454 00:26:11,640 --> 00:26:13,639 Speaker 1: the a C l U and everyone else will be 455 00:26:13,720 --> 00:26:16,399 Speaker 1: more than happy to moot out this case given the 456 00:26:16,440 --> 00:26:19,560 Speaker 1: current composition of the courts, and so they won't want 457 00:26:19,600 --> 00:26:22,080 Speaker 1: to proceed, and the case will go away because all 458 00:26:22,160 --> 00:26:23,720 Speaker 1: of the size in the case will want it to 459 00:26:23,760 --> 00:26:27,399 Speaker 1: go away. Or the third case is that the court 460 00:26:27,400 --> 00:26:30,679 Speaker 1: has agreed to hear Trump's defense of a policy that 461 00:26:30,720 --> 00:26:33,919 Speaker 1: requires people seeking asylum at the southern border to remain 462 00:26:34,000 --> 00:26:38,800 Speaker 1: in Mexico while they're asylum is being processed. Tell us 463 00:26:38,800 --> 00:26:43,119 Speaker 1: about this, well, So this was the lynchpin of the 464 00:26:43,280 --> 00:26:48,760 Speaker 1: entire Trump administration strategy to stop the southern border surge, 465 00:26:48,840 --> 00:26:52,440 Speaker 1: which was instead of operating the two choices that had 466 00:26:52,480 --> 00:26:56,040 Speaker 1: previously been operated, which was number one, either used the 467 00:26:56,119 --> 00:26:59,840 Speaker 1: tension or family seperasion or something, or number two simply 468 00:27:00,160 --> 00:27:02,879 Speaker 1: roll people to allow them to enter the United States 469 00:27:02,880 --> 00:27:06,040 Speaker 1: while their case was pending. This was a third option 470 00:27:06,520 --> 00:27:09,600 Speaker 1: that was in the statutes but really hadn't never been used, 471 00:27:09,880 --> 00:27:13,080 Speaker 1: which was to return people to Mexico immediately upon their 472 00:27:13,200 --> 00:27:17,320 Speaker 1: arrival and have them do their immigration case either in 473 00:27:17,440 --> 00:27:20,600 Speaker 1: Mexico via video conference, or you bring them back in 474 00:27:20,640 --> 00:27:24,399 Speaker 1: to San Diego or to Brownsville or Laredo to some 475 00:27:24,560 --> 00:27:28,080 Speaker 1: immigration court there on the day of their actual hearing. 476 00:27:28,119 --> 00:27:31,440 Speaker 1: And that's called remain in Mexico. And the question is 477 00:27:31,760 --> 00:27:36,160 Speaker 1: did that violate the asylum statutes, to violate the Refugee Protocol, 478 00:27:36,160 --> 00:27:39,680 Speaker 1: which the United States is a member of, and to 479 00:27:39,840 --> 00:27:44,680 Speaker 1: violate certain implementing regulations. And although the Ninth Circuit I 480 00:27:44,760 --> 00:27:49,320 Speaker 1: said yes, it has violated those provisions, the Supreme Court 481 00:27:49,560 --> 00:27:53,320 Speaker 1: stayed that Ninth Circuit decision and allowed Remain in Mexico 482 00:27:53,400 --> 00:27:56,280 Speaker 1: to continue. And so this is much like the Border case, 483 00:27:56,359 --> 00:27:59,359 Speaker 1: or it's just a matter of cleaning up that Ninth 484 00:27:59,359 --> 00:28:02,200 Speaker 1: Circuit press of it that says it's illegal. I think 485 00:28:02,240 --> 00:28:04,480 Speaker 1: the Supreme Court will want to say, no, romaine in 486 00:28:04,560 --> 00:28:11,040 Speaker 1: Mexico is uh facially illegal. Someone might challenge it in 487 00:28:11,080 --> 00:28:14,679 Speaker 1: the manner in which it's applied in their particular case 488 00:28:15,119 --> 00:28:18,080 Speaker 1: and say that they didn't get due process. But I 489 00:28:18,119 --> 00:28:20,879 Speaker 1: think what they'll say is that there's not it's not 490 00:28:21,040 --> 00:28:24,160 Speaker 1: facially valid. There's a way to do romaine in Mexico 491 00:28:24,680 --> 00:28:28,320 Speaker 1: that wouldn't violate any of the provisions of the existing law. 492 00:28:29,000 --> 00:28:32,160 Speaker 1: Thanks for being the Bloomberg Law Show. Leon. That's Leon Fresco, 493 00:28:32,240 --> 00:28:34,840 Speaker 1: a partner at Hollandon Knight. And that's it for this 494 00:28:35,000 --> 00:28:38,080 Speaker 1: edition of The Bloomberg Law Show. I'm June Grasso. Thanks 495 00:28:38,080 --> 00:28:40,280 Speaker 1: so much for listening, and remember to tune to The 496 00:28:40,280 --> 00:28:43,280 Speaker 1: Bloomberg Law Show every weeknight at ten pm Eastern, right 497 00:28:43,320 --> 00:28:44,520 Speaker 1: here on Bloomberg Radio