Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: If the avalanche of lawsuits over voting by mail seems overwhelming,
Speaker 1: now just wait for the lawyers to get to work
Speaker 1: on election day. President Trump has been repeating unproven claims
Speaker 1: about mail in ballots for months now. Democrats are trying
Speaker 1: to reach the election. Left wing judges and governors are
Speaker 1: changing the rules just weeks before the election. These ballots
Speaker 1: are a disaster. They are a total, complete disaster. So,
Speaker 1: barring a landslide, many legal experts expect a second wave
Speaker 1: of lawsuits after the election. Joining me is Rebecca Green,
Speaker 1: a professor at William and Mary Law School and co
Speaker 1: director of the Election Law Program. There are an unprecedented
Speaker 1: number of election cases before the election. Will most of
Speaker 1: those be resolved by election day or will they still
Speaker 1: be litigated? So it's a great question and first point
Speaker 1: to make about the volume of election litigation that we've
Speaker 1: seen so far is number one, that's unprecedented. UM, We've
Speaker 1: definitely never seen as high of a volume of litigation
Speaker 1: between the primary and general election. UM. But that's not
Speaker 1: terribly surprising given that we're in a sort of once
Speaker 1: in a hundred year pandemic. UM. And most of that
Speaker 1: litigation has involved accommodating voters and election officials because of
Speaker 1: the pandemic. So UM, I think, you know, the first
Speaker 1: thing to say is that it's unprecedented. The second thing
Speaker 1: to say is that it's not a bug of our system.
Speaker 1: It's actually a future And it's really, in some sense
Speaker 1: a good thing that so much litigation has occurred, in
Speaker 1: the sense that it's evidence that our system is working
Speaker 1: and that when problems are confronted, we have to be
Speaker 1: resolution processes to address them. So in other words, UM,
Speaker 1: it's not a it's not a problem, it's actually just
Speaker 1: the function that the system working as it should. And
Speaker 1: I guess the third thing to say is that, um,
Speaker 1: we should feel very lucky uh that um, we are
Speaker 1: not being hit with the pandemic to the degree that
Speaker 1: we were, um, just prior to the primaries in our
Speaker 1: general election, UM, where many many more people vote and
Speaker 1: obviously UM, you know, more as at stake. So that
Speaker 1: is to say that all of the litigation that we've
Speaker 1: seen so far has ironed out a lot of the
Speaker 1: kinks and resolved a lot of the problems of running elections.
Speaker 1: During the pandemic. Uh, And so we should be sort
Speaker 1: of in that sense grateful that, UM, that we've gotten
Speaker 1: so many of these issues, We've gotten clarity on many
Speaker 1: of these issues prior to the election. So I think, UM,
Speaker 1: In sort of more directly answering your question, UM, I
Speaker 1: think most of this litigation will be resolved in the
Speaker 1: advance of the election, and certainly courts have a mandate
Speaker 1: to do so, you know, to make sure that the
Speaker 1: rules are in place as far in advance of elections
Speaker 1: as they can. UM. And so I think, UM, I
Speaker 1: think most of the litigation that we're seeing raising around
Speaker 1: the country and what we've seen over the last few
Speaker 1: months will affect to be resolved. UM. But that's not
Speaker 1: to say, of course that there won't be continuing litigation, UM,
Speaker 1: as we approach election day, that there won't be election
Speaker 1: day litigation. And then certainly of course that there will
Speaker 1: most certainly be post election litigation as well. That was
Speaker 1: my next question, the fact that we have all this
Speaker 1: litigation now and as you mentioned, the pandemic, do you
Speaker 1: expect to have an unprecedented amount of post election lawsuits. Well,
Speaker 1: it's hard to say about unprecedented. I do think that
Speaker 1: pressures on the system. So where you typically see a
Speaker 1: lot of post election litigation involved U two categories of ballots. First,
Speaker 1: provisional ballots. Those are ballots that people cast when they
Speaker 1: are told that for one reason or another, they're not
Speaker 1: on the rolls, or they are you know, in the
Speaker 1: wrong precinct, or or there's a disagreement about whether the
Speaker 1: person is eligible to vote. Federal law requires that those
Speaker 1: people be handed a provisional ballot and UM. Then they have,
Speaker 1: you know, a certain amount of time to sort of
Speaker 1: prove that they were in fact eligible UM, and the
Speaker 1: state has to kind of go through a post election
Speaker 1: process and administrative process to decide whether to count or
Speaker 1: not count those provisional ballots. And so there's an administrative
Speaker 1: process for that, and just like there's an an administrative
Speaker 1: process for ABS and T ballots. So when you state
Speaker 1: receives the ABS and ballot, there's a process that they
Speaker 1: go through to verify that it's UM from the person
Speaker 1: who sent it in and that that all those sort
Speaker 1: of boxes are checked UM. In other words, that do
Speaker 1: they have their address on their did they sign it
Speaker 1: properly if they needed a witness signature? Is that on
Speaker 1: there those kinds of things. So there's these administrative processes,
Speaker 1: and often when elections are close, UM, election litigators look
Speaker 1: to provisional and absent tee ballots to determine, you know,
Speaker 1: whether or not they can find UM ones that should
Speaker 1: have been counted that weren't or ones that were counted
Speaker 1: that shouldn't have been counted, and so UM that tends
Speaker 1: to drive a lot of post election litigation when elections
Speaker 1: are closed. So because of the nature of running an
Speaker 1: election during a pandemic and all of them issues that
Speaker 1: have arisen, especially with the dramatic increase that's expected in
Speaker 1: absentee balloting. UM, I think it's fair to say that
Speaker 1: that it's likely that there will be more post election litigation.
Speaker 1: But I guess the caveat there is that typically there
Speaker 1: isn't election litigation when there is what's referred to as
Speaker 1: no margin of litigation. That is to say, if it's
Speaker 1: not close, um, you know it's it's it's it's less
Speaker 1: likely that litigation will occur if it's a blowout, for example.
Speaker 1: So I think a lot of people are looking at
Speaker 1: that that question and sort of you know, the closer
Speaker 1: it is, the more litigation you can expect can we
Speaker 1: expect litigation in any event from President Trump in light
Speaker 1: of the things that he's been saying about malin balloting
Speaker 1: causing massive fraud and that if he doesn't win, he
Speaker 1: doesn't know if he can trust the outcome. So can
Speaker 1: we expect? Well? I think, UM, it's important to UM
Speaker 1: remember that it courts and we've seen this already in litigation. UM.
Speaker 1: You know, in this sort of pre election litigation already, M,
Speaker 1: which is that courts are very consistent in requiring provable
Speaker 1: facts and evidence to show that there's been a statutory
Speaker 1: or constitutional violation of state or federal law before they're
Speaker 1: willing to entertain a case. And so UM, you know,
Speaker 1: if if if President Trump UM and his attorneys are
Speaker 1: able to point to evidence of fraud or problems in
Speaker 1: the absentee voting context, for example, UM, then you know
Speaker 1: that that is absolutely something that should be litigated and
Speaker 1: that evidence should be examined. And you know that that
Speaker 1: that is how our system works. UM. But if if
Speaker 1: the facts aren't there, if the evidence isn't there, you
Speaker 1: know a court will not entertain that UM allegation. UM.
Speaker 1: You know again, if evidence doesn't exist, So I think
Speaker 1: that's going to be the real question is whether or
Speaker 1: not you know, he's he's certainly been suggesting that there
Speaker 1: are lots of problems with absent voting and that there
Speaker 1: will be fraud. But um, in a lotus seeking Marshal's
Speaker 1: evidence to show that that's actually happened. Um, I don't
Speaker 1: think he'll get far in court. And any attack President
Speaker 1: Trump makes on the election that would have to be
Speaker 1: a state by state case or attack, correct. So so yeah,
Speaker 1: it's kind of hard to get your head around. But
Speaker 1: you know, America doesn't have a single presidential elections that
Speaker 1: we have elections in every state, um, and so so yeah,
Speaker 1: you wouldn't be able to sort of challenge that presidential
Speaker 1: election national. You'd have to bring that litigation in states.
Speaker 1: And those states would be following in some cases federal
Speaker 1: law and the sense that they have to comply with
Speaker 1: federal requirements. But the vast majority of requirements in elections
Speaker 1: in this country comes from state law. So in those
Speaker 1: state laws are you know, they have their own ecosystems
Speaker 1: and very distinct from one another. So usually what happens is, um,
Speaker 1: you know, election experts in the states. So the litigators
Speaker 1: who are experts on the state's election law will pick
Speaker 1: up cases at the state level because because the laws
Speaker 1: so arcane in this field. Bush Gore is the case
Speaker 1: that's mentioned over and over again because anyone who went
Speaker 1: through it you remember just hanging on every chad, so
Speaker 1: to speak. So is there any likely that there will
Speaker 1: be another Bush v. Gore? So, you know, the reason
Speaker 1: why Bush versus Gore was such an extraordinary case is
Speaker 1: that the tally came down to vote, which is extraordinary that,
Speaker 1: you know, the deciding state from an electoral vote count
Speaker 1: matter came down to a state where the vote was
Speaker 1: that close. So that is a pretty extraordinary circumstance. And
Speaker 1: it's always the case that there are close elections. Um,
Speaker 1: you know, I'm speaking to you from Virginia, where we
Speaker 1: had an election that was so close that that victor
Speaker 1: had to be drawn from a hat. So it's not
Speaker 1: rare to have close elections, but to have the series
Speaker 1: of circumstances that aligned to produce Bush versus Score occur
Speaker 1: again would be quite extraordinary. So, you know, never say never,
Speaker 1: but it's only going to be that kind of Bush
Speaker 1: bee core level scenario if in fact, um we're talking
Speaker 1: about a state where it's as close and where that
Speaker 1: state is um, you know, pivotal to the outcome. The
Speaker 1: possible scenario for there being no election lawsuits after the
Speaker 1: election would be an overwhelming vote for one candidate or
Speaker 1: the other. Yeah, so, I mean usually the way this
Speaker 1: works is, you know, candidates won't bring claims uh, you know,
Speaker 1: and expend resources. And indeed, in some cases, in most cases,
Speaker 1: state law won't allow um a recount that if the
Speaker 1: outcome isn't you know close, you know. So for example,
Speaker 1: some states have laws that say there can be no
Speaker 1: recount unless there is the vote is closed by x
Speaker 1: percent one percent, for example. And so it is the
Speaker 1: case that UM, if the candidate believes a political party
Speaker 1: believes that the number of votes that are contested, So
Speaker 1: for example, UM, you know, let's say that a vote
Speaker 1: was um, you know, a hundred thousand votes. You know,
Speaker 1: the candidate won by a hundred thousand votes. If the
Speaker 1: candidate who lost by a hundred thousand votes believes that
Speaker 1: there are, for example, you know, two hundred thousand fraudulent votes,
Speaker 1: then that candidate could contest the results saying, you know
Speaker 1: that that the outcome would change had it not been
Speaker 1: for these fraudulent votes. But they're not going to get
Speaker 1: anywhere in litigation unless they can produce evidence that supports,
Speaker 1: you know, a finding that there has been in fact
Speaker 1: um that much thought. So, in other words, unless you
Speaker 1: have the evidence to prove that you have an outcome
Speaker 1: determinative number of problems UM in terms of the ballots
Speaker 1: that have encountered, then you're going to not get foreign litigation,
Speaker 1: if that makes sense. And I think it's fair to
Speaker 1: say also that UM in a blowout situation without that
Speaker 1: kind of evidence, I don't think anyone would. I don't
Speaker 1: think any court would entertain the losses that where there
Speaker 1: just wasn't the proof needed to show that the outcome
Speaker 1: was incorrect. Still do the president's statements make it hard
Speaker 1: to predict whether there will be litigation because he's used
Speaker 1: the courts as refuge time and time again to drag
Speaker 1: things out. So even if you don't have a verifiable
Speaker 1: claim acclaim with proof, you could still slow down the process,
Speaker 1: can't you. Yeah, I mean there's no doubt that you
Speaker 1: know that the a judicatory process for determining whether um,
Speaker 1: you know, weighing evidence and determining whether it's you know,
Speaker 1: provable facts exist that can't take time, and that does
Speaker 1: require courts and fact finders, you know, and administrative processes
Speaker 1: for that matter, to kind of go through carefully to
Speaker 1: make sure that things are right. And so I think
Speaker 1: very likely that there will be you know, this has
Speaker 1: been a headline for for weeks now. You know that
Speaker 1: we we shouldn't necessarily expect a decision um or an
Speaker 1: outcome on election night. You know, administrative and potentially judicial
Speaker 1: process you may take time, but again, if there is
Speaker 1: evidence that there's been a problem, courts will take that
Speaker 1: seriously and take their time in you know, addressing that issue,
Speaker 1: like happened in Florida for example, where it wasn't a
Speaker 1: question about fraud. It was this question obviously right with
Speaker 1: the butterfly ballot and ballot design, but the idea was
Speaker 1: that it took along time to kind of sort through
Speaker 1: the counting process or the recounting process in that case.
Speaker 1: So it's very possible that there could be administrative for
Speaker 1: judicial delays sort of as a result of whatever happens um.
Speaker 1: But in a presidential election, of course, there are hard
Speaker 1: and fast deadlines that are set by federal law and
Speaker 1: so um courts we are cognizant of those deadlines and
Speaker 1: try to ensure that their processes fall within those deadlines.
Speaker 1: In other words, that courts require provable facts, um they
Speaker 1: require evidence, and unless that evidence exists, there's not going
Speaker 1: to be There's going to be no there there. Thanks
Speaker 1: for being on the Boomberg Launchow, Rebecca. That's Professor Rebecca
Speaker 1: Green of William and Mary Law School, co director of
Speaker 1: the Election Law Program. That the Supreme Court agreed to
Speaker 1: hear two appeals from US and Trump's administration over immigration
Speaker 1: related policies. The new cases come on top of one
Speaker 1: that Justice is accepted on Friday to determine whether the
Speaker 1: Trump can exclude undocumented immigrants from the census counts, joining
Speaker 1: Eas Leon Fresco a partnered Hollandon Night. So the court
Speaker 1: has taken now three big immigration related cases. What's your take, Well,
Speaker 1: what's interesting about the three cases is the timing of
Speaker 1: the cases, which is that none of these cases potentially
Speaker 1: could survive a Biden administration, and Biden is elective, and
Speaker 1: so what will be fascinating is either these cases will
Speaker 1: sort of solidify a fee change in immigration law moving
Speaker 1: forward under a President Trump and a six to three
Speaker 1: card or they'll just feed are out and these policies
Speaker 1: won't be implemented, and they will be at no moment.
Speaker 1: And so that's what's fascinating about the timing of these
Speaker 1: cases is that they really set up either one of
Speaker 1: those two outcomes. Let's start with the census case. What
Speaker 1: does President Trump want to do? So President Trump had
Speaker 1: two goals with regard to the census. The first and
Speaker 1: his most important goal was he was trying to not
Speaker 1: count people with unlawful status or quasi immigration status is
Speaker 1: in the census because he believed that by counting those individuals,
Speaker 1: certain states that were more advantageous to Democrats would get
Speaker 1: more representation than states that were more advantageous Republican. So
Speaker 1: that was his first goal. And then the second goal
Speaker 1: was to speed up the accounts of the census because
Speaker 1: some of the states lagging behind had been states that
Speaker 1: were more traditionally represented by Democrats than some of the
Speaker 1: states who had not been lagging behind. So because of that,
Speaker 1: he had tried to shorten the time from which he
Speaker 1: had agreed he would collect census data, which was supposed
Speaker 1: to be until October thirty one, and he wanted to
Speaker 1: shorten that time until the end of September and what
Speaker 1: ended up happening. It ended up going through mid months
Speaker 1: of October because of the various litigation that happened. Tell
Speaker 1: us what the three judge panel based its decision on.
Speaker 1: The three judge panels said that the Trump administration couldn't
Speaker 1: do this. The three judge panel decided that it was
Speaker 1: unlawful for the President to exclude undocumented immigrants from the
Speaker 1: census because the way that the Constitution is written, it's
Speaker 1: written as persons, and when the Constitution wants to count
Speaker 1: citizens or something else, if it's talking about citizens, it
Speaker 1: refers to citizens. And when it refers to person, it
Speaker 1: refers to person. And so no matter what interpretation you're
Speaker 1: gonna use about what the original enumeration clause meant in
Speaker 1: the Constitution, it meant counting every human being was in
Speaker 1: the United States. And the judges also said that it
Speaker 1: would violate a separate requirement that the Commerce Secretary send
Speaker 1: the President a single set of numbers derived from the census. Yes,
Speaker 1: that's correct as well, which is that at the end
Speaker 1: of the day, the the Commerce Secretary. The problem is
Speaker 1: there's sort of this feeling that there's this black box
Speaker 1: of how this is going to get calculated, and they're
Speaker 1: the Justice Department was not willing to provide a clear
Speaker 1: answer as to how they were going to get to
Speaker 1: the count that excluded undocumented individuals. And so because there
Speaker 1: is a provision that requires the Sensive Bureau to provide
Speaker 1: one count to the President, that also would be violated.
Speaker 1: You're correct about referencing that. Let's talk about the timmy
Speaker 1: because the argument is scheduled for November. Obviously, the decision
Speaker 1: comes after that, and the Commerce Secretary has to send
Speaker 1: the numbers in by December thirty one, So how can
Speaker 1: they accomplish that unless you are they starting to figure
Speaker 1: out the undocumented immigrant numbers already. Well, so what's fascinating
Speaker 1: about this is this was an issue that was in
Speaker 1: dispute in the other census case, which is that the
Speaker 1: Census Administration had already said that they had no chance
Speaker 1: of being able to meet the December thirty one deadline,
Speaker 1: and that had been said repeatedly and on numerous occasions,
Speaker 1: and now the Department of Justice had changed its mind
Speaker 1: and said, no, give us a chance at least to
Speaker 1: meet the December thirty one deadline. So nobody knows if
Speaker 1: this deadline will be mad or not mad, and nobody
Speaker 1: knows how that number is going to be derived of
Speaker 1: who's undocumented. The only things that have been discussed so
Speaker 1: far are counting the amount of people that are in
Speaker 1: ice facilities and at least the new things that But
Speaker 1: if that's literally what we're talking about, we're talking about
Speaker 1: maybe twenty thirty thousand people, and so that's not going
Speaker 1: to make a difference of anything. And that seems to
Speaker 1: be a lot of way some resources for no good reason.
Speaker 1: And so the question is really what other modes of
Speaker 1: operations are they going to try to do to discount
Speaker 1: undocumented people. And really there's this other question of who
Speaker 1: is undocumented, because are you undocumented on a specific day,
Speaker 1: because a lot of people are in between status is
Speaker 1: their status has expired, but they're applying for a renewal
Speaker 1: of their status with U s c i S and
Speaker 1: that can take months, and a lot of people are
Speaker 1: waiting to fix their status the marriage applications, and so
Speaker 1: this question is not a simple question at all as
Speaker 1: to what it actually means to be undocumented. The court
Speaker 1: is likely going to be different when this is heard,
Speaker 1: because any Coney Barrett will most likely be on the court.
Speaker 1: Can we read anything into the courts October thirteenth order
Speaker 1: that left the Trump administration and the census count more
Speaker 1: than two weeks early. Well, I think the the Court
Speaker 1: is inclined to give broad deference to the president here
Speaker 1: on how the president operates the census. And so I
Speaker 1: think from that standpoint, even though there was the case
Speaker 1: that Justice Roberts had been a part of at that
Speaker 1: time too uh not allow the citizenship questions to be
Speaker 1: asked on the census, that's a different question than the
Speaker 1: operation of when the census was going to be actually completed,
Speaker 1: and that sort of the sensatory scheme there does give
Speaker 1: very very broad uh difference. And in fact, the thing
Speaker 1: is that the case ended up going. The census count
Speaker 1: ended up going much longer than it was originally supposed
Speaker 1: to go. It was extended because of COVID, and the
Speaker 1: other thing that had changed slightly was that the count
Speaker 1: by mid October when this decision had come out, were
Speaker 1: in the very high nineties in terms of count. It
Speaker 1: was it was very unclear how much more juice was
Speaker 1: going to be left into squeeze these out of these
Speaker 1: additional days. Because we were talking high nineties in all
Speaker 1: the parts of the United States, and so I think
Speaker 1: for those reasons is why the Court lifts in the state.
Speaker 1: So I don't know that that gets us anywhere with
Speaker 1: regards to the ultimate question as to who gets counted
Speaker 1: as part of the census. I'm wondering if the originalists
Speaker 1: on the Court, if they're going to be looking at
Speaker 1: the words in the Constitution, whether that may make a
Speaker 1: good argument against what the Trump administration wants to do.
Speaker 1: Right absolutely, when this executive order first came out, pretty
Speaker 1: much every legal expert from all walks of life, conservative
Speaker 1: and liberal, thought that this case would be very flimsy.
Speaker 1: So it is a bit surprising that we are here
Speaker 1: at the Supreme Court. But it also happens because when
Speaker 1: the federal government asked the Supreme Court to review something,
Speaker 1: there is a lot of difference that's given there. If
Speaker 1: it doesn't happen all the time, but it happens most
Speaker 1: of the time, And so we are where we are
Speaker 1: where this might end up being reviewed. Although, of course
Speaker 1: I think if if the Vice President Biden wins in November,
Speaker 1: then maybe that November oral argument uh takes a lot
Speaker 1: less importance. Or get three schedules or something else. So
Speaker 1: we'll we'll see the court takes cases because they want
Speaker 1: to overrule they don't want in place the federal Appellate
Speaker 1: Court decision. So in this case, that would mean the
Speaker 1: court took the case to overrule the three judge panel
Speaker 1: which voted against the Trump administration. Yes, that is the
Speaker 1: conventional wisdom that that's what would occur in a normal
Speaker 1: case like this, which is that the only reason is
Speaker 1: that the only reason that the case would have been
Speaker 1: taken would have been to overturn the Second Circuit decision.
Speaker 1: But here that might not be the case, because this
Speaker 1: issue is such a case of national importance that the
Speaker 1: court might just have taken it because the federal government
Speaker 1: wanted then to take it, and that this might be
Speaker 1: an issue that would come up in other decades as well,
Speaker 1: and so they would take it. But at the end
Speaker 1: of the day, I just I just don't know why
Speaker 1: that the Free Court would have taken it if they
Speaker 1: thought it was a completely frivolous argument. So for anyone
Speaker 1: to say it's likely that the Trump administration will lose,
Speaker 1: I think is maybe getting too far ahead of them.
Speaker 1: So if Biden does win, the count is in by
Speaker 1: December thirty one. He's not in office until January. So
Speaker 1: what difference does it make if Biden wins if the
Speaker 1: count is already in Well, that's a good question, and
Speaker 1: I think it will just depend on a do they
Speaker 1: get the count in in time? Be are there legal
Speaker 1: challenges which I think would happen to that count, and
Speaker 1: then see could then as a result of those legal challenges,
Speaker 1: a settlement be reached where the Biden administration actually performs
Speaker 1: account that doesn't include, uh, this reduction in undocumented individuals,
Speaker 1: If that makes sense. So that's how I think it would.
Speaker 1: That's how I think it would end up playing out,
Speaker 1: is you would have accounts that would that would potentially
Speaker 1: exclude people. Then you would have some other lawsuits that
Speaker 1: was put in just to be a placeholder, and then
Speaker 1: you'd have a settlement to that lawsuit that ultimately said
Speaker 1: we aren't gonna county the we aren't going to exclude
Speaker 1: the undocumented from this census. And that's how it would
Speaker 1: end up playing out. Okay, So today the Supreme Court
Speaker 1: agreed to hear two other cases related to immigration. One
Speaker 1: the clash over Trump's use of two point five billion
Speaker 1: dollars in Pentagon funds to build the wall, and the
Speaker 1: Supreme Court cleared Trump to start using the money and
Speaker 1: refuse to revisit it. What's your take on this, Well,
Speaker 1: I mean, this case has a been in an interesting
Speaker 1: posture because that money has been basically spent, and the
Speaker 1: wall all has been you know, to the extent that
Speaker 1: you would call it constructed at least in terms of
Speaker 1: those funds. That horse has already left the barns. And
Speaker 1: so this is just about two sorts of housekeeping issues.
Speaker 1: Which is number one, Well, you still have this Ninth
Speaker 1: Circuit President that says that using those national emergency funds
Speaker 1: in that manner is illegal. So the idea would be
Speaker 1: to wipe that off the book so that that wouldn't
Speaker 1: happen if the president wanted to do it in a
Speaker 1: subsequent year. And then of course there's the issue of
Speaker 1: allowing the president to do this in subsequent years. And
Speaker 1: so both of those are the reasons why the Court
Speaker 1: needed to get involved there, because if that Ninth Circuit
Speaker 1: President had just stayed there, even though there was a
Speaker 1: stay of this litigation, there might not have been a
Speaker 1: stay of a subsequent litigation of a subsequent effort that
Speaker 1: tried to use again Defense Department money to build the wall.
Speaker 1: So what happens if Biden wins and the administration drops
Speaker 1: the case, then the Ninth Circuit decision is still on
Speaker 1: the books. Potentially, yes, that that could be how it
Speaker 1: ends up working. And if that works, then a future
Speaker 1: attempt by a future Republican administration to try to do
Speaker 1: something like this would be thwarted unless the court issued
Speaker 1: another say of such a decision next time. Is something
Speaker 1: like that would happen? Is it a simple matter to
Speaker 1: drop the case? If Biden wins, absolutely, they can say, look,
Speaker 1: we are no longer going to continue with this policy
Speaker 1: of diverting funds, and so this case is now mood
Speaker 1: and we won't do it. And then the question would
Speaker 1: be at that point if the governments, because here in
Speaker 1: the in this case, the government is actually the one
Speaker 1: doing the appeal. If the government does the appeal and
Speaker 1: the government is the one dropping its own appeal, is
Speaker 1: able to do it. If the other side had done
Speaker 1: the appeal and the government was was trying to drop
Speaker 1: the case, they could say, well, this could be likely
Speaker 1: to come up again, and so we don't want to
Speaker 1: moot out this case. But here, the Sierra Club and
Speaker 1: the a C l U and everyone else will be
Speaker 1: more than happy to moot out this case given the
Speaker 1: current composition of the courts, and so they won't want
Speaker 1: to proceed, and the case will go away because all
Speaker 1: of the size in the case will want it to
Speaker 1: go away. Or the third case is that the court
Speaker 1: has agreed to hear Trump's defense of a policy that
Speaker 1: requires people seeking asylum at the southern border to remain
Speaker 1: in Mexico while they're asylum is being processed. Tell us
Speaker 1: about this, well, So this was the lynchpin of the
Speaker 1: entire Trump administration strategy to stop the southern border surge,
Speaker 1: which was instead of operating the two choices that had
Speaker 1: previously been operated, which was number one, either used the
Speaker 1: tension or family seperasion or something, or number two simply
Speaker 1: roll people to allow them to enter the United States
Speaker 1: while their case was pending. This was a third option
Speaker 1: that was in the statutes but really hadn't never been used,
Speaker 1: which was to return people to Mexico immediately upon their
Speaker 1: arrival and have them do their immigration case either in
Speaker 1: Mexico via video conference, or you bring them back in
Speaker 1: to San Diego or to Brownsville or Laredo to some
Speaker 1: immigration court there on the day of their actual hearing.
Speaker 1: And that's called remain in Mexico. And the question is
Speaker 1: did that violate the asylum statutes, to violate the Refugee Protocol,
Speaker 1: which the United States is a member of, and to
Speaker 1: violate certain implementing regulations. And although the Ninth Circuit I
Speaker 1: said yes, it has violated those provisions, the Supreme Court
Speaker 1: stayed that Ninth Circuit decision and allowed Remain in Mexico
Speaker 1: to continue. And so this is much like the Border case,
Speaker 1: or it's just a matter of cleaning up that Ninth
Speaker 1: Circuit press of it that says it's illegal. I think
Speaker 1: the Supreme Court will want to say, no, romaine in
Speaker 1: Mexico is uh facially illegal. Someone might challenge it in
Speaker 1: the manner in which it's applied in their particular case
Speaker 1: and say that they didn't get due process. But I
Speaker 1: think what they'll say is that there's not it's not
Speaker 1: facially valid. There's a way to do romaine in Mexico
Speaker 1: that wouldn't violate any of the provisions of the existing law.
Speaker 1: Thanks for being the Bloomberg Law Show. Leon. That's Leon Fresco,
Speaker 1: a partner at Hollandon Knight. And that's it for this
Speaker 1: edition of The Bloomberg Law Show. I'm June Grasso. Thanks
Speaker 1: so much for listening, and remember to tune to The
Speaker 1: Bloomberg Law Show every weeknight at ten pm Eastern, right
Speaker 1: here on Bloomberg Radio