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

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Speaker 2: In an unprecedented and stunning decision, the Colorado Supreme Court

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Speaker 2: has barred Donald Trump from the state's March fifth primary

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Speaker 2: ballot by a narrow vote. The court found that the

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Speaker 2: former president's actions inciting the January sixth attack on the

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Speaker 2: US Capitol make him ineligible to run again under Section

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Speaker 2: three of the fourteenth Amendment. That's a post Civil War

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Speaker 2: era provision of the Constitution that Ban's insurrection is from

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Speaker 2: holding public office. It's a little surprising that some of

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Speaker 2: Trump's rivals for the Republican presidential nomination, like Chris Christy

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Speaker 2: and Nikki Haley, denounced the decision.

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Speaker 1: I do not believe Donald Trump should be prevented from

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Speaker 1: being president United States by any court. I think he

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Speaker 1: should be prevented from being president United States by the

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Speaker 1: voters of this country.

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Speaker 2: So I want to say this in the hands of

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Speaker 2: the voters. We're going to win this the right way.

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Speaker 2: We're going to do what we need to do. But

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Speaker 2: the last thing we want is judge just telling us

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Speaker 2: who can and can't be on the bunt. Trump's campaign

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Speaker 2: immediately said it would appeal the decision to the US

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Speaker 2: Supreme Court joining me is Harold Krant, a professor at

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Speaker 2: the Chicago Kent College of Law. Is there any precedent

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Speaker 2: at all for this ruling?

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Speaker 3: There's no direct present for the Colorado Supreme Court ruling.

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Speaker 3: And this issue has raised so many complicated constital issues

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Speaker 3: that were the only the US Supreme Court can resolve

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Speaker 3: the challenge once and for all.

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Speaker 2: Let's start with the text of the fourteenth Amendment doesn't

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Speaker 2: actually define an insurrection or spell out what it means

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Speaker 2: to engage in insurrection. Yet the Court upheld the trial

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Speaker 2: judge's conclusion that the January sixth assault was an insurrection

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Speaker 2: that Trump engaged in that insurrection. Is that a big

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Speaker 2: jump for the court?

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Speaker 3: I think the jump is more about who gets to

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Speaker 3: make the call as to whether President Trump engaged insurrection

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Speaker 3: or not. The definition of insurrection has to be balanced

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Speaker 3: with free speech rights, and the question is whether President

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Speaker 3: Trump was just using the torque to rally the troops

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Speaker 3: or was he actively engaging in inciting imminent violence. And obviously,

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Speaker 3: the Colorado Court not based upon a healing but based

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Speaker 3: largely upon the transcript of the January sixth Congressional investigation

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Speaker 3: held that President Trump's talk went over the line to

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Speaker 3: actually cite imminent violence and not just to speak more

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Speaker 3: generally about the importance of being vigilant and showing their voice.

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Speaker 3: In my view, I think the Colorado Supreme Court had

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Speaker 3: a very persuasive decision on that ground that there was

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Speaker 3: in fact more than just talk, but rather the talk

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Speaker 3: was inextricably linked with imminent action on that day to

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Speaker 3: stop the electors from certifying Joe Biden as the next president.

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Speaker 3: But the real question, my mind is who makes that call.

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Speaker 3: Is this to be made after a trial? Is this

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Speaker 3: to be made after an evidentiary hearing? And we don't know.

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Speaker 3: And that's the thicket that the Colorado Supreme Court has

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Speaker 3: entered into.

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Speaker 2: The lower court who decided that there was an insurrection

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Speaker 2: and that Trump engaged in that insurrection. There was a

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Speaker 2: week long trial about that right, So there was a.

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Speaker 3: Week long trial. It wasn't with cross examination that there

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Speaker 3: was evidence of the information that was presented, so it

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Speaker 3: was a kind of mini trial. And you know, one

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Speaker 3: of the other background issues in this case is in

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Speaker 3: coluttal law, as another states, not all there's an ability

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Speaker 3: to have an expirited challenge to somebody who's on the

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Speaker 3: ballot as being inappropriate. And of course that's the context

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Speaker 3: in which this arose is and Publican voters decided that

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Speaker 3: the Secretary State should not allow President Trump on the

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Speaker 3: ballot because he wasn't qualified. And the issue in most cases,

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Speaker 3: you're not qualified because of residentiary qualifications long enough, because

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Speaker 3: your age is wrong, you're under thirty five, so forth,

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Speaker 3: and so on. An easy and an expedited decision just

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Speaker 3: to make those kinds of judgments to decide whether should someone

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Speaker 3: stay on the ballot. In this case, though, it's so

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Speaker 3: complicated because the question of whether there was an insurrection

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Speaker 3: and whether President Trump inside of the insurrection stuff can't

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Speaker 3: be decided under these kinds of streamlined treatments. So again

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Speaker 3: it raises the question of whether both the Colorado intendness

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Speaker 3: and should this be the way that we decide whether

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Speaker 3: someone does engage in insurrection. So the quick abbreviated five

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Speaker 3: day hearing was largely based upon January sixth committees notes,

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Speaker 3: and those were comprehensive, But in a normal state of things,

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Speaker 3: you won't have that kind of record to rely upon,

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Speaker 3: which raises the question again it should be court in

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Speaker 3: this expected proceeding be the entity to determine whether a

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Speaker 3: candidate has engaged in an insurrect.

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Speaker 2: Section three doesn't mention the presidency, and the Colorado Justices

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Speaker 2: broke from the trial judge on this one key issue

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Speaker 2: which makes the difference. They reversed her decision that the

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Speaker 2: insurrection ban applies to every office except the presidency. Where

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Speaker 2: do you stand on that?

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Speaker 3: Yeah, I mean, I think that the Carlos Supreme Court

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Speaker 3: was on very strong ground in rejecting the Trial Court's

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Speaker 3: decision that all other officers of the United States are

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Speaker 3: covered by the insurrection clause except for the President. To

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Speaker 3: be sure, the president is not named explicitly, but the

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Speaker 3: president is an officer in the United States in common parlance.

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Speaker 3: The president does take an oath to uphold the Constitution

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Speaker 3: like other officers. And indeed, one of the principal reasons

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Speaker 3: for the fourteenth Amendment was to prevent people like Jefferson Davis,

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Speaker 3: who was the President of Confederacy, from ever being able

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Speaker 3: to hold office again. And under the Trial Court's reasoning,

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Speaker 3: Jefferson Davis could have run for president, and that just

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Speaker 3: seems to be so far afield from what the framers

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Speaker 3: of the Fourteenth Amendment thought that I think it's on

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Speaker 3: very weak round. So I think on this particular issue,

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Speaker 3: the Chilote Supreme Coy at the far stronger decision.

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Speaker 2: All seven justices were appointed by democratic governors. It was

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Speaker 2: a four to three ruling, and the three justices who

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Speaker 2: dissented did so on procedural grounds, and they each presented

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Speaker 2: a different legal argument in their opinions. Do the descents

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Speaker 2: offer a sort of framework for arguments that Trump can

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Speaker 2: make to try to overturn the ruling?

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Speaker 3: The arguments were connected in this sense. The question really focused,

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Speaker 3: in different language, on whether a challenge to a ballot

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Speaker 3: listing is the proper procedure to determine whether someone engage

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Speaker 3: in insurrection. Viewed at the most sort of global level,

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Speaker 3: the question is whether them the fourteen is self executing,

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Speaker 3: and by that we mean can any voter trigger a

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Speaker 3: question as to the authorization the qualification under the fourteenth Amendment,

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Speaker 3: or rather, does Congress have to set a procedure out

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Speaker 3: in which the question of insurrection and qualification can be measured. So,

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Speaker 3: for instance, in eighteen seventy, the Congress did pass an

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Speaker 3: Insurrection Act under which the attorneys of the United States

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Speaker 3: could go to court to challenge the ability of a

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Speaker 3: former Confederate officer to serve a federal office. That was

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Speaker 3: repealed in nineteen forty eight. And so the question would

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Speaker 3: be whether we have to await another congressional sort of

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Speaker 3: decision as to how to enforce the terms of Memdent fourteen,

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Speaker 3: Section three. And that's the very fraught issue which has

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Speaker 3: obviously never been clearly determined one way or the other,

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Speaker 3: because there is a kind of logic to the sense

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Speaker 3: that we should wait for Congress to tell us how

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Speaker 3: to enforce this provision, as opposed to just individual voters

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Speaker 3: triggering an election board to make this very complicated decision

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Speaker 3: based upon almost no precedence whatsoever. I should also add

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Speaker 3: that Congress does have a criminal provision which provides for

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Speaker 3: disqualification from office as well for aiding insurrection, but that

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Speaker 3: course is complete with all the protections of the criminal trial.

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Speaker 3: And Jack Smith, the Special Council has not charged President

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Speaker 3: Trump under this section, whether he's chosen other provisions to

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Speaker 3: charging with. So we do have a process now implicitly

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Speaker 3: in order to determine whether someone's engage in inturrection, and

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Speaker 3: therefore disqualified, but that has not been pursued, and so

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Speaker 3: the major question I think looking under all of this

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Speaker 3: is whether, again under different formats, whether this Colorado election

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Speaker 3: challenge with the appropriate vehicle for determining whether or not

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Speaker 3: a insurrection indeed took place, which would lead to the

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Speaker 3: disqualification of the candidates.

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Speaker 2: Coming up next echoes of the controversial Bush v. Gore decision.

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Speaker 2: I'm June Grosso. When you're listening to Bloomberg, I've been

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Speaker 2: talking to Professor Harold kran to the Chicago College of

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Speaker 2: Law about the Colorado Supreme Court barring Donald Trump from

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Speaker 2: the state's March fifth primary ballot in an unprecedented ruling.

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Speaker 2: The Colorado Chief Justice, in a dissenting opinion, said the

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Speaker 2: ruling was premature because Trump hasn't been criminally convicted of insurrection.

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Speaker 2: But he hasn't even been charged with insurrection, so there

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Speaker 2: are factual determinations to be made as well as legal determinations.

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Speaker 3: Right, I mean, I think that that's to me. There's

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Speaker 3: one other issue that the Colorado Justice is mentioned, but

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Speaker 3: I think the overarging issue is who should make this

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Speaker 3: decision as to whether President Trump engaging insurrection and under

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Speaker 3: what circumstances. And it's at least odd if not been

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Speaker 3: consistent with the Constitution to say that this incredibly important

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Speaker 3: decision is made on an expedity basis, without a jury,

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Speaker 3: and without be on so many of the safeguards of

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Speaker 3: a criminal trial. Now, if indeed the framers of the

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Speaker 3: amendment thought that that was appropriate, so be it. But

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Speaker 3: you'd have to have, I think, in my mind, pretty

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Speaker 3: clear evidence that that's what the framers had in mind,

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Speaker 3: rather than this sort of expedited hearing that took place

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Speaker 3: in this case. The other issue that was raised in

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Speaker 3: descent was want to due process, that this is not

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Speaker 3: a full and fair trial, and the former president did

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Speaker 3: not have those kind of procedure protections before being thrown

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Speaker 3: off the ballot. I don't think that argument's going to

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Speaker 3: hold up at all. I think the real issue is

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Speaker 3: not one of protecting former President Trump, but one of

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Speaker 3: protecting the electorate. And so I think the extent that

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Speaker 3: the Sensing Justice made this point in the case, the

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Speaker 3: real argument should be substituted is we want to make

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Speaker 3: sure we've a very careful process before we deny the

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Speaker 3: will of the people. And so to the extent that

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Speaker 3: there were concerns about this truncated process that would go

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Speaker 3: to making sure we have full and adequate protection for

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Speaker 3: the electorate, not for the individual who's seeking office. But altogether,

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Speaker 3: I think it's a very close case, not because of

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Speaker 3: whether or not there's interrupting gaging the insurrection, and there

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Speaker 3: was no dissenting justice on that point, but rather on

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Speaker 3: the question is this the form, Is this the time

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Speaker 3: to make the determination in each of the states as

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Speaker 3: to whether from the vision insurrection, because obviously that's just

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Speaker 3: going to lead to a different result in different states

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Speaker 3: and would undermine the ability, I think, to have a

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Speaker 3: fair and impartial process to proceed upon the determine whether

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Speaker 3: pent President Trump shouldn't be be on the ballot for

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Speaker 3: the primary which is starting in Reason Carlado.

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Speaker 2: During early March, Trump's campaign immediately said that it would

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Speaker 2: appeal the decision to the Supreme Court, the US Supreme Court.

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Speaker 2: That's no surprise, even the Colorado Court anticipated that is

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Speaker 2: this a case that the justices almost have to take?

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Speaker 3: I think so. I mean, I think the Colorado Court

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Speaker 3: knew that this was important, that their decision was going

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Speaker 3: to lock in the decisions of other states, because even

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Speaker 3: if some states said no and some states said yes. Effectively,

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Speaker 3: former President Trump would be off the bout in enough

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Speaker 3: states as to change the election resultant through the election

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Speaker 3: that their turmoil. So the Court recognized that, and I

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Speaker 3: think the US Supreme Court is really their hand is forced.

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Speaker 3: I think they have to take this case and have

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Speaker 3: some kind of expedity decision as to who should make

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Speaker 3: the call as to whether or not the candidate had

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Speaker 3: engaged in interaction and therefore is not qualified under the ballot. Clearly,

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Speaker 3: whether a candidate has residenty requirements, whether a candidate is

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Speaker 3: thirty five or not, those kinds of issues can be

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Speaker 3: determined quite easily by a state election board. But on

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Speaker 3: the question of insurrection, I think maybe we need a

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Speaker 3: different process in the absence of Congress, and the Court

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Speaker 3: will determine is there a process absent a congressional structure,

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Speaker 3: and if so, what that process will be for determining

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Speaker 3: whether or not the candidate engaged in insurrection after taking

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Speaker 3: an over as an officer in the United States?

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Speaker 2: Doesn't the Supreme Court usually have to accept the facts

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Speaker 2: of the case below, and here both the lower court

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Speaker 2: and the color Supreme Court said he did engage in

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Speaker 2: an insurrection.

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Speaker 3: Yeah, I don't think there will look at the facts

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Speaker 3: of the case to determine whether or not what the

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Speaker 3: standard is under Bradenburg versus High or something in terms

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Speaker 3: of what he is incitement, you know. I think rather

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Speaker 3: what the court will do is simply try to figure

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Speaker 3: out who has the right to make that determination. And

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Speaker 3: the issue is whether, in part whether Fourteenth Amendment in

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Speaker 3: this respect is self executing, or whether or not Congress

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Speaker 3: has to create the procedure, and the only procedure that

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Speaker 3: is created so far is a trial, and disqualification will

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Speaker 3: follow on the heel of a successful trial.

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Speaker 2: The Supreme Court, as we've discussed, has a conservative supermajority

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Speaker 2: with three justices appointed by Trump. Is there anything you

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Speaker 2: can conclude from that lineup that tells you about how

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Speaker 2: they'll approach the case.

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Speaker 3: My guess is they won't touch the question of whether

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Speaker 3: President Trump engaged in insurrection. They have, of course questions

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Speaker 3: of the presidential immunity that is before the court right now.

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Speaker 3: But rather what they will do, and I would guess

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Speaker 3: if I had to, is that they will decide that

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Speaker 3: whatever the proper procedure is to determine whether someone engaged

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Speaker 3: insurrection that this process is wanting and therefore cannot stand.

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Speaker 3: But of course, at the same time, they will be

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Speaker 3: forced to make a call as to what the proper

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Speaker 3: process would be and whether or not it's up to

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Speaker 3: Congress to set the guidelines for in kind of inquiry

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Speaker 3: that would be this qualification.

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Speaker 2: This what's the twenty twenty four residential election basically in

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Speaker 2: the hands of the Supreme Court again, like Bush v. Gore,

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Speaker 2: which remains one of the most controversial decisions in US history,

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Speaker 2: and the country right now is more politically divided.

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Speaker 3: Than it was then, absolutely, and how this plays out

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Speaker 3: politically overall is a critical issue. Well, this emboldened supporters

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Speaker 3: of Trump to think that former President Trump is not

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Speaker 3: getting a fair shake. Will they come out and droves

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Speaker 3: to support him, And will this pressure the US Supreme

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Speaker 3: Court to make a decision on behalf of former President Trump? Again,

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Speaker 3: I don't think the issues are clear cut, and I

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Speaker 3: do think that the Court may try to find a

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Speaker 3: middle ground by saying that the analysis was partially correct

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Speaker 3: by the PLOT Supreme Court, But the inquiry that led

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Speaker 3: to that decision is simply the inappropriate inquiry to kick

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Speaker 3: somebody off the presidential ballot. I think they will say

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Speaker 3: that the law the Constitution applies to ex President Trump,

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Speaker 3: but that to determine whether he engaged an insurrection, at

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Speaker 3: the minimum, you need to have a full evidentiary hearing,

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Speaker 3: and perhaps even more than that, we need to have

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Speaker 3: a criminal trial. You know, the US Supreme Court really

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Speaker 3: could try to down the middle type of decision by

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Speaker 3: being empathetic to the Colorado Supreme Court, but yet holding

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Speaker 3: that this is not the kind of process that was

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Speaker 3: envisioned by the framers of the fourteenth Amendment.

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Speaker 2: But we'll see the conservatives on the Court are textualists,

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Speaker 2: So do you think they'll analyze this by looking at

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Speaker 2: the language of the fourteenth Amendment.

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Speaker 3: The language in this case is simply not clear. No

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Speaker 3: one can say for certain that the language forces a

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Speaker 3: particular outcome. The Court will be grappling with the history

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Speaker 3: of the fourteenth Amendment. That has to be center of

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Speaker 3: any kind of analysis. And we know the issue that

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Speaker 3: the Congress was what to do about all of those

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Speaker 3: Confederate officers to make sure they didn't resume positions of authority,

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Speaker 3: and this clause was aimed the preventing that. And the

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Speaker 3: question is how the Court can make sense of that

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Speaker 3: without agreeing with the Kalorado Supreme Court. And I think again,

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Speaker 3: the way they can try to put those two competing

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Speaker 3: sort of vectors together is by saying absolutely, that's what

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Speaker 3: Congress intended through the fourteenth Amendment, but it's failed after

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Speaker 3: appealing the eighteen seventy Insurrection Act of giving another procedure

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Speaker 3: that is adequate to make that inque possible.

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Speaker 1: And so I had I.

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Speaker 3: Guess now that's what I would think that US Supreme

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Speaker 3: Court would say.

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Speaker 2: Is this a case where Clarence Thomas should recuse himself

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Speaker 2: because his wife was at the ellipse et cetera.

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Speaker 3: Well, that's obviously a tough question. He hasn't shown much

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Speaker 3: interest in accusing himself previously, and of course it's not

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Speaker 3: a question of whether the insurrectionists engaged insurrections whether President

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Speaker 3: Trump did, which is analytically distinct. But yes, I think

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Speaker 3: that in an other world, Justice Thomas would recuse himself.

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Speaker 3: But my guess is he want in this case?

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Speaker 2: Thanks Hal. That's Harold Crant of Chicago Kent College of Law.

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Speaker 2: Coming up next, a new Texas law makes illegal immigration

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Speaker 2: a state crime. I'm June Grosse when you're listening to Bloomberg.

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

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Speaker 4: Cendebel four is now law in the state of Texas.

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Speaker 2: Senate Bill four allows police in Texas to arrest migrants

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Speaker 2: to illegally cross into the country and empowers local judges

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Speaker 2: to order them to leave the country. On Monday, Republican

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Speaker 2: Governor Greg Abbott signed the bill into law.

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Speaker 4: The goal of Cinebel four is to stop the title

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Speaker 4: wave of illegal entry into Texas. It creates a criminal

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Speaker 4: offense for illegal entry into Texas from a foreign nation.

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Speaker 2: The law challenges the federal government's exclusive enforcement of immigration laws.

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Speaker 2: Less than twenty four hours after the signing, civil rights

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Speaker 2: groups in Texas's largest border county filed the lawsuit, calling

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Speaker 2: the measure an unconstitutional reach over the US government's authority

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Speaker 2: on immigration. Joining me is immigration law expertly On Fresco,

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Speaker 2: a partner at Honda Knight, tell us about the law

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Speaker 2: leon and what it does well.

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Speaker 5: The law does two things. So the first one, which

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Speaker 5: is not controversial, devotes more money toward border security, and

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Speaker 5: that's permitted, and nobody thinks that that isn't in terms

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Speaker 5: of border security resources for their officers, et cetera. There

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Speaker 5: is some question about some border barriers that the money

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Speaker 5: is fun things to see whether those border barriers are

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Speaker 5: going to be deployed in an unconstitutional manner, But that's

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Speaker 5: one aspect. The more controversial aspect is three new state

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Speaker 5: law offenses that are created by the statue. One is

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Speaker 5: illegal entry from a foreign nation, the second is illegal

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Speaker 5: re entry, and third is refusal to comply with an

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Speaker 5: order to return to the foreign nation. And so here's

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Speaker 5: how basically this is going to work. Texas will now

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Speaker 5: have the authority to have its officers arrest people that

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Speaker 5: it things have illegally crossed from Mexico into the United States. Now,

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Speaker 5: what's interesting is the law doesn't require a visual in

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Speaker 5: order to arrest the person, so it could be that

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Speaker 5: the person was here a week or two. And then

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Speaker 5: this is where that's going to get complicated, is it's

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Speaker 5: almost certain they're going to get some of those wrong

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Speaker 5: if they actually make arrests like that. But let's say

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Speaker 5: they only limit the arrest the people they visually seen

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Speaker 5: entering illegally. The next step is those people can be

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Speaker 5: arrested and charged for a misdemeanor and the way it

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Speaker 5: will work is they will go into a court hearing

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Speaker 5: where the judge will say, look, you don't have to

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Speaker 5: have this criminal conviction, but what you have to agree

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Speaker 5: to do is to go back to Mexico and then

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Speaker 5: we'll just call it even and there won't be any conviction.

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Speaker 5: If the person refuses to do that, then the person

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Speaker 5: will be charged and placed in prison for up to

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Speaker 5: six months under this Texas offense. And then what Texas

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Speaker 5: actually says is if they refuse to comply with a

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Speaker 5: condition that says after this release they have to go

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Speaker 5: back into Mexico, then they can actually be re arrested

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Speaker 5: and charged with a felony that would put them in

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Speaker 5: prison for up to twenty years. And so this raises

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Speaker 5: a whole bunch of questions such as what happens if

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Speaker 5: the person's asking for asylum and they just get ensnared

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Speaker 5: in this web in Texas. Would they actually have to

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Speaker 5: leave the country and lose their asylum claim or would

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Speaker 5: they be able to have some sort of way through

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Speaker 5: this without having to potentially phase twenty years in prison.

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Speaker 5: And that is pretty much the most egregious unresolved aspects

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Speaker 5: of the Texas law But the main sort of complaint

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Speaker 5: is that we have gone through this before with Arizona

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Speaker 5: doing something very similar, and at the end of the day,

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Speaker 5: the Arizona law being stricken down as being an illegal

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Speaker 5: state law encroachment into federal immigration enforcement.

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Speaker 2: Crossing between ports of entry is already a crime under

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Speaker 2: federal law, isn't it aren't federal agents supposed to be

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Speaker 2: arresting migrants for that.

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Speaker 5: Absolutely, crossing the border illegally is a criminal offense under

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Speaker 5: federal law. It's a misdemeanor. The problem is the federal

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Speaker 5: government does not have anywhere near the resources it needs

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Speaker 5: to prosecute every single person who did this. We're on

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Speaker 5: paced currently to have something like three point six million

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Speaker 5: unlawful border crossings in twenty twenty three, twenty twenty four,

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Speaker 5: and what that would mean is you'd have to have

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Speaker 5: prison space, prison beds to put those people into custody,

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Speaker 5: and there's nothing like that. So what the federal government

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Speaker 5: does is it only prosecutes people who are either criminals

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Speaker 5: who have re entered the United States or people who

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Speaker 5: are doing some other dangerous thing like drug smuggling or

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Speaker 5: something else while they're crossing the border. But just a

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Speaker 5: simple first time border crosser very rarely gets prosecuted at

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Speaker 5: the moment for unlawful entry in between the ports of entry.

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Speaker 2: Couldn't the border agents turn them around and send them

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Speaker 2: back across the border.

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Speaker 5: So this depends on their Title forty two. That was

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Speaker 5: happening systematically, which was pretty much any person who entered

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Speaker 5: unlawfully through the ports of entry was being pushed back

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Speaker 5: into Mexico. Now there isn't a law or that requires this.

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Speaker 5: Certainly the federal agents can volunteer this offer and say, look,

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Speaker 5: we're going to put you in CDP's attention. Then we're

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Speaker 5: going to put you anice attention. Do you really want this?

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Speaker 5: Wouldn't you prefer to just go back into Mexico? And

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Speaker 5: sometimes people do take that what's called voluntary return option

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Speaker 5: back into Mexico, But more often than that, people instead

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Speaker 5: ask for asylum and wait whatever time they have to

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Speaker 5: wait temporarily in custody to get processed through that so

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Speaker 5: that they can enter the United States while their asylum

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Speaker 5: cases tending didn't.

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Speaker 2: Homeland Security Secretary Alejandra Majorcis say that people who arrive

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Speaker 2: at the border without using a lawful pathway will be

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Speaker 2: presumed ineligible for asylum.

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Speaker 5: That's correct, but here is how that works. So just

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Speaker 5: because you are banned from getting asylum doesn't mean you're

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Speaker 5: banned from getting something called withholding of removal. So what

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Speaker 5: happens is asylum is a discretionary form of relief that

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Speaker 5: the federal government gives by statutes that it doesn't have

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Speaker 5: to give, which gives people a path to citizenship and

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Speaker 5: the ability to earn a green card to get the

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Speaker 5: ability to bring family over. But that's not the only

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Speaker 5: way to basically save yourself. You can get this second

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Speaker 5: status called withholding of removal, which means you get to

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Speaker 5: stay in the US, but you get no other such

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Speaker 5: rights like a green card, citizenship, ability to bring family,

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Speaker 5: or any of that. And what happens is even though

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Speaker 5: there's a ban on receiving asylum for people, there isn't

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Speaker 5: a ban on receiving withholding of removal. So people if

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Speaker 5: they need a slightly higher threshold for articulating a claim,

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Speaker 5: which is called a reasonable fear standard as opposed to

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Speaker 5: the credible fear standard, which is the lower standards US

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Speaker 5: for asylum cases. If you can meet a slightly higher

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Speaker 5: standard called the reasonable fear standard, then you are permitted

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Speaker 5: to stay even if you cross in between the port

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Speaker 5: of entry, and even if you will not be able

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Speaker 5: to get asylum, you're still allowed to state to make

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Speaker 5: your withholding of removal case in the Immigration Court.

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Speaker 2: Civil rights organizations sued less than twenty four hours after

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Speaker 2: Abbott signed the law. They're challenging the constitutionality of it,

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Speaker 2: and they cite that Supreme Court case in twenty twelve

439
00:26:25,080 --> 00:26:25,760
Speaker 2: in Arizona.

440
00:26:26,119 --> 00:26:29,760
Speaker 5: Correct the ACLU sued in the Western District of Texas

441
00:26:29,800 --> 00:26:33,560
Speaker 5: in Austin, and they are suing on behalf of certain

442
00:26:33,640 --> 00:26:36,920
Speaker 5: immigrant rights groups and also on behalf of El Paso County,

443
00:26:37,640 --> 00:26:41,320
Speaker 5: and they're suing the State of Texas. Public officials saying

444
00:26:41,480 --> 00:26:44,159
Speaker 5: that at the end of the day, they need injunctive

445
00:26:44,200 --> 00:26:48,280
Speaker 5: relief from this SB four in Texas because this is

446
00:26:48,320 --> 00:26:52,080
Speaker 5: the exact same scenario as Arizona. That a state cannot

447
00:26:52,359 --> 00:26:57,440
Speaker 5: criminalize being unlawfully present, because that is a federal immigration

448
00:26:57,880 --> 00:27:01,560
Speaker 5: enforcement prerogative and it is not something that the State

449
00:27:01,600 --> 00:27:04,080
Speaker 5: of Texas can do. The State of Texas is preempted

450
00:27:04,480 --> 00:27:07,440
Speaker 5: by federal law from doing it. Now, just to give

451
00:27:07,480 --> 00:27:10,879
Speaker 5: you some composition of how this works, it is expected

452
00:27:10,920 --> 00:27:13,840
Speaker 5: that there will be three justices, you know, the liberal

453
00:27:13,880 --> 00:27:18,399
Speaker 5: three Soto, Mayor, Jackson, and Kagan, who will be sympathetic

454
00:27:18,480 --> 00:27:22,399
Speaker 5: to such a claim. And Justice Roberts also voted on

455
00:27:22,520 --> 00:27:25,280
Speaker 5: the side of the federal government and against Arizona in

456
00:27:25,320 --> 00:27:29,640
Speaker 5: the Arizona case. There will be two Justices Alito and Thomas,

457
00:27:29,680 --> 00:27:33,280
Speaker 5: who voted on the side of Arizona during the Arizona case.

458
00:27:33,760 --> 00:27:35,760
Speaker 5: And so what we do not know is what about

459
00:27:35,760 --> 00:27:40,400
Speaker 5: the remaining three new ones, Kavanaugh, Gorsitz, and amy Cony Barrett.

460
00:27:40,760 --> 00:27:44,520
Speaker 5: Are they going to side with the state of Texas

461
00:27:44,560 --> 00:27:48,520
Speaker 5: and overturn the Arizona case and say that states can

462
00:27:48,640 --> 00:27:53,760
Speaker 5: indeed do prosecutions if they're literally prosecuting the exact same

463
00:27:53,800 --> 00:27:57,480
Speaker 5: thing that the federal government is prosecuting and that's something different.

464
00:27:58,400 --> 00:28:02,080
Speaker 5: Or will they rule to keep the Arizona president and

465
00:28:02,160 --> 00:28:03,879
Speaker 5: say that this cannot be done and we're not going

466
00:28:03,920 --> 00:28:06,840
Speaker 5: to overturn that precedent. And so we will see. There's

467
00:28:06,840 --> 00:28:09,439
Speaker 5: good arguments on both sides of this. Certainly, the federal

468
00:28:09,480 --> 00:28:13,520
Speaker 5: government prosecutes drug offenses, as does state government. We'll both

469
00:28:13,600 --> 00:28:18,240
Speaker 5: do that, but by the same token, state don't prosecute

470
00:28:18,560 --> 00:28:22,280
Speaker 5: things such as failing to file your federal tax return

471
00:28:22,720 --> 00:28:26,160
Speaker 5: that's not only by the federal government, and so we're

472
00:28:26,160 --> 00:28:29,840
Speaker 5: gonna see where along the line does immigration fall within

473
00:28:29,920 --> 00:28:30,680
Speaker 5: those spectrums.

474
00:28:30,880 --> 00:28:33,640
Speaker 2: This law doesn't go into effect until March. I think

475
00:28:33,640 --> 00:28:38,280
Speaker 2: it is, so if the District Court doesn't grant an injunction,

476
00:28:38,960 --> 00:28:41,640
Speaker 2: then this might go into effect before the Supreme Court

477
00:28:41,680 --> 00:28:42,800
Speaker 2: has a chance to hear it.

478
00:28:43,160 --> 00:28:47,640
Speaker 5: If the District Court in Austin enjoins us before that,

479
00:28:47,760 --> 00:28:50,600
Speaker 5: I think you'll see a very slow path of this

480
00:28:50,720 --> 00:28:53,920
Speaker 5: case to get all the way to the Supreme Court,

481
00:28:53,960 --> 00:28:58,840
Speaker 5: and I don't think it will take a very short route. If, however,

482
00:28:59,400 --> 00:29:03,120
Speaker 5: the court in Texas says this is legal, and Texas

483
00:29:03,160 --> 00:29:06,440
Speaker 5: actually starts enforcing the law, you will see an immediate

484
00:29:06,520 --> 00:29:09,920
Speaker 5: request for a say in the Fifth Circuit, which if

485
00:29:09,920 --> 00:29:13,160
Speaker 5: the District Court doesn't enjoin it, it's very likely neither

486
00:29:13,240 --> 00:29:16,040
Speaker 5: with the Fifth Circuit, and then you'd see an immediate

487
00:29:16,080 --> 00:29:19,200
Speaker 5: request for a say in the Supreme Court. So probably

488
00:29:19,280 --> 00:29:24,480
Speaker 5: within thirty days you would see some sort of decision

489
00:29:24,480 --> 00:29:26,760
Speaker 5: by the Supreme Court whether to say this law or

490
00:29:26,840 --> 00:29:31,000
Speaker 5: not pending review. So that would happen quickly, but I

491
00:29:31,040 --> 00:29:33,960
Speaker 5: don't think it would happen quickly in the alternative side,

492
00:29:34,400 --> 00:29:38,400
Speaker 5: where if the district court in Texas or the Fifth

493
00:29:38,440 --> 00:29:41,360
Speaker 5: Circuit were to say that this is indeed preempted and

494
00:29:41,400 --> 00:29:44,440
Speaker 5: it's illegal, I think you would see this work its

495
00:29:44,440 --> 00:29:46,160
Speaker 5: way up slowly through the court.

496
00:29:46,480 --> 00:29:49,640
Speaker 2: When Abbots signed this, there were signs that read in

497
00:29:49,680 --> 00:29:53,560
Speaker 2: English and Spanish warning it's illegal to cross here, punishable

498
00:29:53,600 --> 00:29:57,840
Speaker 2: by removal or imprisonment. And he called the legislation so

499
00:29:58,080 --> 00:30:01,520
Speaker 2: extreme that it would drive my and away from Texas.

500
00:30:01,720 --> 00:30:04,920
Speaker 2: So that just means they'll cross into other states, right,

501
00:30:05,120 --> 00:30:11,680
Speaker 2: And Arizona already is so overwhelmed that the governor deployed

502
00:30:11,680 --> 00:30:13,160
Speaker 2: the National Guard to help.

503
00:30:13,800 --> 00:30:18,320
Speaker 5: Yes, there's basically two places where you can cross. It's

504
00:30:18,440 --> 00:30:23,360
Speaker 5: Texas and Arizona. Because the California border with Mexico is

505
00:30:23,360 --> 00:30:26,880
Speaker 5: pretty much all triple fence. It's a very small border,

506
00:30:27,120 --> 00:30:30,800
Speaker 5: as is the new Mexico borders, a very small border

507
00:30:30,840 --> 00:30:34,600
Speaker 5: which is basically triple fence as well. And so really

508
00:30:34,640 --> 00:30:37,040
Speaker 5: the only places that are open are in Arizona and

509
00:30:37,080 --> 00:30:42,240
Speaker 5: in Texas. And if people say that they are experiencing

510
00:30:42,320 --> 00:30:46,080
Speaker 5: these arrests in Texas, then certainly you will see people

511
00:30:46,120 --> 00:30:49,240
Speaker 5: move to Arizona. And it'll be unclear if Arizona will

512
00:30:49,280 --> 00:30:52,600
Speaker 5: pass a law similar to Texas, because of course Arizona

513
00:30:52,640 --> 00:30:55,520
Speaker 5: has to deal with the ninth Circuits and Texas gets

514
00:30:55,520 --> 00:30:58,280
Speaker 5: to deal with the fifth Circuit, so that changes dramatically.

515
00:30:58,760 --> 00:31:02,000
Speaker 5: There'd almost be no reason for Arizona to think that

516
00:31:02,040 --> 00:31:04,600
Speaker 5: they could pass the law that would be in any

517
00:31:04,600 --> 00:31:07,400
Speaker 5: way allowed to be enforced, So they'd have to wait

518
00:31:07,440 --> 00:31:10,200
Speaker 5: to see what the Supreme Court says before they could

519
00:31:10,240 --> 00:31:11,320
Speaker 5: go ahead and pass the law.

520
00:31:11,360 --> 00:31:14,520
Speaker 2: And therein there's also a question, it seems, about whether

521
00:31:14,600 --> 00:31:18,800
Speaker 2: Texas can process all these people if they do make arrests,

522
00:31:18,800 --> 00:31:24,160
Speaker 2: because some border sheriffs have expressed concerns that this would

523
00:31:24,320 --> 00:31:26,560
Speaker 2: overwhelm the local jails and courts.

524
00:31:27,400 --> 00:31:30,120
Speaker 5: That's correct. The purpose of this law would not actually

525
00:31:30,240 --> 00:31:34,760
Speaker 5: be to arrest the border crossers coming into Texas in

526
00:31:34,840 --> 00:31:37,520
Speaker 5: sort of a massive scale. It would be just to

527
00:31:37,600 --> 00:31:40,600
Speaker 5: create fear that you could be one of the people

528
00:31:41,160 --> 00:31:44,560
Speaker 5: that get stuck in this Texas web and so don't

529
00:31:44,560 --> 00:31:46,720
Speaker 5: come into Texas. And I think what they would try

530
00:31:46,760 --> 00:31:50,080
Speaker 5: to do is create enough examples to scare enough people

531
00:31:50,480 --> 00:31:52,840
Speaker 5: to try to move people out from Texas and into

532
00:31:52,840 --> 00:31:55,800
Speaker 5: other locations, and that would be their goal. But you're

533
00:31:55,840 --> 00:31:59,560
Speaker 5: correct to say that if the actual goal was to

534
00:31:59,680 --> 00:32:03,239
Speaker 5: arrest every person coming into Texas and there wasn't a

535
00:32:03,280 --> 00:32:06,440
Speaker 5: reduction based off of fear, there was no way they

536
00:32:06,480 --> 00:32:08,800
Speaker 5: could do it. They Texas would have no way to

537
00:32:08,840 --> 00:32:12,040
Speaker 5: actually arrest and detain a million people or a million

538
00:32:12,080 --> 00:32:15,000
Speaker 5: and a half people coming into Texas. But what they

539
00:32:15,040 --> 00:32:17,840
Speaker 5: could do is if they get enough stories out there

540
00:32:17,920 --> 00:32:22,200
Speaker 5: of just terrible circumstances face by people that entered Texas,

541
00:32:22,520 --> 00:32:26,280
Speaker 5: their ideal scenario would be that people stop entering because

542
00:32:26,320 --> 00:32:28,160
Speaker 5: they heard of these terrible scenarios.

543
00:32:28,720 --> 00:32:32,200
Speaker 2: Thanks so much, Leon, and you'll be back tomorrow when

544
00:32:32,240 --> 00:32:35,200
Speaker 2: we'll talk about the record numbers of migrants who are

545
00:32:35,360 --> 00:32:40,320
Speaker 2: crossing the southern border illegally and the Senate negotiations over

546
00:32:40,520 --> 00:32:44,680
Speaker 2: border policy. Thanks so much. That's Leon Fresco, a partner

547
00:32:44,680 --> 00:32:47,000
Speaker 2: at Holland to Night, and that's it for this edition

548
00:32:47,040 --> 00:32:49,680
Speaker 2: of The Bloomberg Law Show. Remember you can always get

549
00:32:49,680 --> 00:32:52,840
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You

550
00:32:52,880 --> 00:32:56,960
Speaker 2: can find them on Apple Podcasts, Spotify, and at www

551
00:32:57,080 --> 00:33:01,480
Speaker 2: dot Bloomberg dot com slash podcast Law. And remember to

552
00:33:01,520 --> 00:33:04,560
Speaker 2: tune into The Bloomberg Law Show every weeknight at ten

553
00:33:04,640 --> 00:33:08,400
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening

554
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