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Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: New York State is suing the Trump administration for blocking

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Speaker 1: New Yorkers from participating in Global Entry and other programs

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Speaker 1: that allow pre screen travelers to breathe through passport and

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Speaker 1: customs checks at airports and borders. New York Governor Andrew

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Speaker 1: Cuomo said the move by the administration was retribution for

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Speaker 1: New York opposing many Trump policies. It is an abusive power,

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Speaker 1: it is extortion. It is herding New Yorkers to advance

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Speaker 1: their political agenda, and we're going to fight back. Joining

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Speaker 1: me is Leon Fresco, a partner at Hollanden Night. Leon

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Speaker 1: explained the Trump Administration's position on the ban for New

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Speaker 1: Yorkers only, Well, what is happening is the following. There

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Speaker 1: are these trusted traveler programs, global Entry being the main one,

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Speaker 1: but Nexus and Fast being other ones, where people can

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Speaker 1: sign up and get increased vetting on the front end,

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Speaker 1: so that when this increased vetting occurs, then on the

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Speaker 1: back end, meaning when they are seeking to enter the

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Speaker 1: United States, they get less vetting, meaning they don't have

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Speaker 1: to stand in line because they've already been pre screened

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Speaker 1: and I've been approved as a trusted traveler. And so

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Speaker 1: what the Trump administration is saying is that New York's

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Speaker 1: laws with regard to how it's issuing its driver's licenses

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Speaker 1: and both the fact that it is starting to issue

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Speaker 1: them too undocumented individuals, but more importantly than that, the

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Speaker 1: fact that this license information isn't being shared with the

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Speaker 1: federal government is making it harder for the federal government

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Speaker 1: to determine who is a trusted traveler and who isn't.

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Speaker 1: And as such, they say that New York should not

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Speaker 1: be allowed to participate in these trusted traveler progress. A

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Speaker 1: number of other states give driver's licenses to undocumented immigrants.

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Speaker 1: Is New York different in any way that it would

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Speaker 1: be targeted by the Trump administration. Well, so this gets

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Speaker 1: into a little bit of a debate because the Trump

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Speaker 1: administration is saying that it doesn't necessarily have to do

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Speaker 1: with the fact that the license itself is being given

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Speaker 1: to the undocumented individual, but that the licensed information itself

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Speaker 1: from that undocumented individual isn't being shared with the federal government.

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Speaker 1: That that's the issue that that play here, And so

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Speaker 1: that's how the federal government would distinguish New York from

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Speaker 1: these other states, although Washington is considering passing a law

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Speaker 1: that is very close to what New York has done.

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Speaker 1: And so that's the issue that's that play here is

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Speaker 1: does the fact that New York isn't sharing this driver's

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Speaker 1: license information from undocumented individuals? Does that create an actual

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Speaker 1: increased risk that justifies booting New Yorkers out of the

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Speaker 1: Trusted Traveler program? Let me ask you this, when people

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Speaker 1: enroll in the Trusted Traveler programs, what kind of investigation

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Speaker 1: is done of them? Do they go to the state

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Speaker 1: driver's license records and check them out? No. In fact,

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Speaker 1: that's a fascinating point, which is that a driver's license

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Speaker 1: is not even a condition precedent to getting a Trusted

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Speaker 1: Traveler program. Meaning if you've never even entered a car

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Speaker 1: in your entire life, much less drive, that has nothing

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Speaker 1: to do with how you get screened or whether you're

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Speaker 1: eligible for a Trusted Traveler program, which obviously most of

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Speaker 1: the time has to do a plane. That can have

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Speaker 1: to do with cars in terms of the Nexus lanes

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Speaker 1: up in the Canada US border. But what really happens

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Speaker 1: is you get vetted through twenty one different databases, one

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Speaker 1: called you Packs, one called text, one called I, then

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Speaker 1: one called the TSDB, and another one from the FBI's

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Speaker 1: National Crime Information Center, And so all of these databases

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Speaker 1: are vetted because you're providing your fingerprints as the applicant

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Speaker 1: for a Trusted Traveler. With these finger prints, the federal

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Speaker 1: government now knows exactly who you are and can determine

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Speaker 1: whether there is an ability to strike you or not

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Speaker 1: strike you based on what those fingerprints searches reveals. New

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Speaker 1: York says this is retribution for a new state law

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Speaker 1: that allows New York residents to apply for driver's licenses

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Speaker 1: without having to prove that they're in the US legally.

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Speaker 1: But what are the grounds for the lawsuit? Well, there

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Speaker 1: are several grounds for the lawsuits. So there's some very

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Speaker 1: technical grounds that they're hoping they can win on that

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Speaker 1: seemed to be quite promising for New York. And then

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Speaker 1: there's the traditional constitutional grounds. So the very technical grounds

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Speaker 1: are that these Trusted Traveler programs were created under the

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Speaker 1: two thousand four Intelligence Reform and Terrorism Prevention Act, and

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Speaker 1: what those say. What that law says is that the

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Speaker 1: purpose of this is to expedite the travel previously screened

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Speaker 1: the known travelers, and it's saying that the goal of

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Speaker 1: this is to make the program in enroll and convenient,

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Speaker 1: easily accessible, and provide applicants with clear and consistent eligibility guidelines.

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Speaker 1: And so the idea is that the statute is being

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Speaker 1: violated by discriminating against one state as opposed to all

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Speaker 1: states treating them the same way. And so that's the

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Speaker 1: crux of the lawsuit. And then there are these broader

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Speaker 1: constitutional claims about denying people the ability to get trusted

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Speaker 1: traveler status without due process, and the state sovereign the

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Speaker 1: issues that a state should be able to issue driver's

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Speaker 1: licenses without affecting federal policy. And then finally that the

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Speaker 1: actual new rules should have been passed through notice and

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Speaker 1: comment because it is a rule, substantive rule, and so

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Speaker 1: because they didn't do that, it violates the Administrative Procedure Act.

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Speaker 1: I've been talking to Leon Fresco, a partnered Hollandon Knight,

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Speaker 1: the governor of New York, says this is retribution. Explain

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Speaker 1: why the Trump administration, or at least why the Department

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Speaker 1: of Homeland Security is not happy with New York. Well,

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Speaker 1: there's the substantive basis of why they're not happy with

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Speaker 1: New York generally, and then there's the basis of why

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Speaker 1: that is being translated into this policy, so generally they

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Speaker 1: are angered toward New York. Has to do with the

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Speaker 1: fact that New York does not cooperate with the federal

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Speaker 1: government in allowing ICE agents to go into the New

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Speaker 1: York detention facilities to look for non citizens who have

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Speaker 1: criminal backgrounds, and that New York also doesn't report non

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Speaker 1: citizens with criminal backgrounds to ICE so that ICE can

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Speaker 1: pick them up when they're about to be released from

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Speaker 1: state or local custody. And so that's the real source

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Speaker 1: of the anger and frustration here. This driver's license issue

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Speaker 1: has sort of been a way to translate that into action,

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Speaker 1: to show that the federal government is upset with New

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Speaker 1: York with what it's doing, and by doing that, the

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Speaker 1: idea is not just to fix the driver's license issue,

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Speaker 1: but to try to get at the larger issue of

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Speaker 1: allowing ICE to have much more cooperation inside of both

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Speaker 1: New York City and New York State. Doesn't California restrict

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Speaker 1: ICE access in a similar way. Absolutely. California has a

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Speaker 1: law called the Trust Act, and the Trust Act actually

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Speaker 1: bans except on their very violent criminal circumstances. State and

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Speaker 1: local authorities from cooperating with ICE and these manners that

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Speaker 1: I've just discussed, which are allowing ICE agents into the

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Speaker 1: jails and also notifying ICE of release of individuals from custody.

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Speaker 1: Do you know how many people will actually be affected

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Speaker 1: in New York? Well, so the lawsuit talks about over

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Speaker 1: a hundred thousand people potentially being effected, over fifty thou

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Speaker 1: people who have pending applications, plus over a hundred thousand

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Speaker 1: people who have existing status whose status will expire. And

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Speaker 1: so that doesn't necessarily translate in any concrete way in

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Speaker 1: somebody's head unless they start to see suddenly a hundred

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Speaker 1: and fifty people more in a line in front of

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Speaker 1: them at a specific airport on a specific day, or

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Speaker 1: are in a car lane, if you suddenly I have

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Speaker 1: ten or twenty more cars in front of you than

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Speaker 1: you used to have. We're now talking about hours long,

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Speaker 1: more weights at these airports and at these ports of

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Speaker 1: entry at the northern border, which the idea is that

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Speaker 1: would make everyone less safe because once you start having

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Speaker 1: these long lines and you have to treat everybody the

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Speaker 1: same in terms of screening them then nobody's a priority

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Speaker 1: and you're not able to focus your resources on the

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Speaker 1: people who haven't been pre screened, So then everybody has

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Speaker 1: to wait longer. Correct, everybody has to wait longer, and

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Speaker 1: it's easier to sort of say, Okay, I'm going to

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Speaker 1: focus on this group who's not trusted travelers to see

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Speaker 1: whether they have any security risk they're posing, whereas if

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Speaker 1: you have to investigating the same person who's being screened

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Speaker 1: every week because they're traveling every week for business, this

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Speaker 1: is just a waste of everybody's time. What about the

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Speaker 1: t s A pre check program. The t s A

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Speaker 1: pre check program is not affected, which again is a

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Speaker 1: bit odd because at the end of the day, the

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Speaker 1: t s A pre check is actually about getting people

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Speaker 1: on planes, and to the extent people talk about nine

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Speaker 1: eleven and other things, it was the boarding of the

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Speaker 1: plane that at the end of the day was considered

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Speaker 1: the real problem in terms of causing the terrorists damage.

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Speaker 1: And so that for whatever reason, still apparently there's no

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Speaker 1: need to have the driver's license information to do the

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Speaker 1: t s A pre check, but for whatever reason, the

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Speaker 1: global entry and the nexus are needed, and so that's

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Speaker 1: also a bit of a complication there for the federal

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Speaker 1: government's case, which is either you would need this for

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Speaker 1: vetting or you don't need this for vetting. And if

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Speaker 1: you're saying you need this for vetting some programs and

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Speaker 1: not others, that's really not realistic. What's really driving at

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Speaker 1: this is the t s A really doesn't want a

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Speaker 1: hundred and fifty thousand New Yorkers back in the non

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Speaker 1: pre check lines. Again, that will create havoc at the airport,

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Speaker 1: and I think that's why it wasn't translated into t

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Speaker 1: s A pre check. How strong are the grounds for

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Speaker 1: the lawsuit, My prediction is you're going to see it

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Speaker 1: be quite successful in the district court and in the

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Speaker 1: Court of Appeals if for some bizarre reason, this issue

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Speaker 1: isn't resolved by the time the case gets to the

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Speaker 1: Supreme Court, either because Congress stepped in and wrote some

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Speaker 1: appropriations bill or because the government just gave up or

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Speaker 1: found some face saving way of resolving this. If it

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Speaker 1: actually gets to the Supreme Court, it would be interesting

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Speaker 1: to determine how broadly the president is going to have

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Speaker 1: authority with regard to these Trusted traveler programs. I don't

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Speaker 1: see a clear legislative path because there isn't one for

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Speaker 1: excising one state's residents from trust or traveler programs. But

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Speaker 1: perhaps it's just through the pure discretionary nature that the

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Speaker 1: government has of allowing any individual for any reason to

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Speaker 1: join or not join these trusted traveler programs, that they

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Speaker 1: may be able to get away with exercising an entire state,

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Speaker 1: meaning no individual person, unfortunately, unless there is some very

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Speaker 1: discriminatory thing that got put in place, has a right

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Speaker 1: to sue for being excluded from global entry. And so

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Speaker 1: the idea will be with well, if an individual doesn't

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Speaker 1: have the right to sue, then maybe no one from

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Speaker 1: a state would have the right to sue either, because

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Speaker 1: the state is just a group of individuals. California has

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Speaker 1: sued President Trump more than any other state. What led

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Speaker 1: Homeland Security to aim for New York? Do you think

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Speaker 1: with regard to this rather than California? I think what

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Speaker 1: happened was there were some high profile cases in New

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Speaker 1: York of some foreign nationals with criminal backgrounds that actually

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Speaker 1: committed some serious crimes after being released from detention. That

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Speaker 1: sort of crystallized the focus of trying to target New York.

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Speaker 1: And that's why this specific thing is targeting New York.

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Speaker 1: I think that and also the fact that if you

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Speaker 1: actually took away all of California from these trusted traveler programs,

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Speaker 1: I think it'd be hard to determine how immediate the

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Speaker 1: impact would be, sort of into a massive disruption into

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Speaker 1: both customs and border protection ports and into airports and

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Speaker 1: land ports, given the US Mexico border and how big

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Speaker 1: that is. And so I think that they were very

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Speaker 1: reluctant to make California the test case. Even as big

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Speaker 1: as New York is, it's nowhere as near as big

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Speaker 1: as California. And so for those two reasons, the size

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Speaker 1: of New York versus the size of California, and the

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Speaker 1: fact that New York actually had some cases that were

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Speaker 1: in the news recently where I said disregarded some warrants

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Speaker 1: to pick up people from undocumented status who had been

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Speaker 1: criminals from the detention facility. That's why you saw the

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Speaker 1: focus on New York. The President has been focusing in

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Speaker 1: again on sanctuary cities in his State of the Union

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Speaker 1: address and in an address today. Is this a renewed

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Speaker 1: focus on sanctuary cities. I think there is this renewed focus.

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Speaker 1: I think it's something that the President very much wants

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Speaker 1: to make election issue, and I think the folks at

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Speaker 1: the Department of Homeland Security have been empowered to try

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Speaker 1: to figure out what legal mechanisms they have at their

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Speaker 1: disposal to basically, whether you want to use the word

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Speaker 1: encourage on some ends or coerce on other ends, the

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Speaker 1: individuals in the state and local governments to present as

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Speaker 1: robustly as possible undocumented individuals. Two eyes for removal. We've

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Speaker 1: talked before about how the President's policies have trimmed immigration.

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Speaker 1: So would there be a lot more people put in

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Speaker 1: custody if New York and California and other sanctuary cities

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Speaker 1: or states cooperated with the feds. Well, the problem is

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Speaker 1: we sort of don't know what we don't know in

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Speaker 1: the sense of if somebody is released before a warrant

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Speaker 1: can be served upon them, or we never find them

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Speaker 1: in a detention facility because ICE can't go in that

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Speaker 1: detention facility. We don't know exactly how many people ICE

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Speaker 1: is losing from its custody that it otherwise could have

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Speaker 1: had had those individuals been proactively reported to ICE. But

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Speaker 1: what we do know is that those numbers sort of

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Speaker 1: at their heyday in two thousand eight through two thousand

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Speaker 1: ten peaked that maybe about a hundred thousand more individuals

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Speaker 1: than than we have today who get arrested on a

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Speaker 1: yearly basis with criminal records, and so there definitely is

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Speaker 1: some argument that there's some sizable population of individuals that

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Speaker 1: aren't in ice custody that otherwise might be if the

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Speaker 1: States did what the President wanted them to do. As

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Speaker 1: far as the global entry band, do you think that

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Speaker 1: the New York AG we'll be able to get an injunction?

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Speaker 1: I think the New York a g will likely be

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Speaker 1: very successful in both the district court and the Court

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Speaker 1: of Appeals level. And there's also an A C O.

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Speaker 1: You lawsuit as well, and that's important from the standpoint

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Speaker 1: of you know, they're going to get two bites at

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Speaker 1: the apple with two different district court judges. Maybe or

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Speaker 1: maybe those cases will be consolidated. We'll see, But if

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Speaker 1: they get two bites to the apple, that's two different

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Speaker 1: chances to get a district court injunction. And then the

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Speaker 1: issue becomes what happens then what happens both at the

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Speaker 1: Court of Appeals, and then what happens if this isn't

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Speaker 1: resolved by the time the Supreme Court case happens, And

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Speaker 1: that's really just going to be about this issue of

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Speaker 1: is a state a separate entity that you can't discriminate

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Speaker 1: against for the purposes of these trusted traveler programs, or

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Speaker 1: is a state just considered a bunch of different groups

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Speaker 1: of individuals, And since no one individual can sue because

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Speaker 1: their global entry was denied, neither kind a group of individuals.

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Speaker 1: And that's what the litigation issue is going to be

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Speaker 1: about here. Finally, the A C. L. You suit, what

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Speaker 1: is the basis of that? Is it the same as

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Speaker 1: New York. They have very similar Administrative Procedure Act claims,

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Speaker 1: meaning that the law itself does not permit this to

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Speaker 1: be done, that even if the law permitted this to

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Speaker 1: be done, it had to be passed through a formal

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Speaker 1: rulemaking process. And they are trumpeting the due process parts

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Speaker 1: of this, which are you know, a lot of people

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Speaker 1: paid money and fees for these programs, and if they're

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Speaker 1: not actually going to get the money and the fees

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Speaker 1: for what they bargained for, that's something that's being denied

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Speaker 1: to them without due process of law. Thanks Leon, that's

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Speaker 1: Leon Fresco, a partnered Hollandon Knight, I'm tuning, Brasso. Thanks

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Speaker 1: so much for listening, and remember to tune to The

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Speaker 1: Bloomberg Law Show weeknight at ten pm Eastern Time, right

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Speaker 1: here on Bloomberg Radio