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

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Speaker 2: And it sounds strange, doesn't it.

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Speaker 3: Department of Education. We're going to eliminate it, and everybody

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Speaker 3: knows it's right.

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Speaker 4: In March, President Trump signed an executive order to dissolve

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Speaker 4: the Department of Education, which oversees billions of dollars in

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Speaker 4: funding for everything from student loans to special needs and

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Speaker 4: nutritional programs. Trump said that the essential services provided by

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Speaker 4: the department will be picked up by other agencies and

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Speaker 4: guess who else.

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Speaker 3: All we have to do is get the students to

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Speaker 3: get guidance from the people that love them and cherish them,

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Speaker 3: including their parents, by the way, who will be totally

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Speaker 3: involved in their education along with the boards.

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Speaker 4: Well. Twenty Democratic state attorneys general sued, arguing that the

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Speaker 4: administration's actions to dismantle the DOE are illegal and unconstitutional

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Speaker 4: because only Congress has the authority to eliminate the department.

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Speaker 4: Here's New Jersey Attorney General Matthew Platkin.

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Speaker 5: They're hurting our kids to score cheap political points. And

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Speaker 5: I think for the eighty five percent of families in

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Speaker 5: this country that rely on public education, this is an

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Speaker 5: affront to all of us.

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Speaker 4: A federal judge in Boston agreed and said that the

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Speaker 4: Trump purge would leave the department unable to perform duties

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Speaker 4: required by the law. He used a preliminary injunction in May,

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Speaker 4: blocking the administration from downsizing the department, But on Monday,

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Speaker 4: a divided Supreme Court lifted that judge's order and allowed

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Speaker 4: Trump to resume dismantling the DOE over a blistering dissent

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Speaker 4: by the court's three liberals joining me is constitutional law

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Speaker 4: expert David super, a professor at Georgetown Law. Trump can't

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Speaker 4: officially eliminate the Department of Education, or any department, but

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Speaker 4: can he effectively dismantle it?

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Speaker 2: He has dumb with the Department of Education. I don't

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Speaker 2: think it's lawful. I don't even understand a plausible legal

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Speaker 2: theory why it might be lawful. But he has certainly

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Speaker 2: done that.

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Speaker 4: Given the Court's previous rulings for Trump, especially last week's

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Speaker 4: ruling that allowed the administration to begin mass firings at

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Speaker 4: federal agencies, did this decision come as any surprise.

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Speaker 2: This one did for several reasons. One is it came

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Speaker 2: without any explanation at all. What the Court's done in

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Speaker 2: prior cases upholding the administration is nitpick the challengers to death,

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Speaker 2: finding small, often semantic defect in what they've done. It's

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Speaker 2: truing jurisdiction extraordinarily strictly. But in this case, they simply

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Speaker 2: allowed the President to go forward with activities that seempatently

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Speaker 2: illegal without giving any explanation as to why it was acceptable.

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Speaker 4: Are the Supreme Court's conservatives just ignoring the decisions of

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Speaker 4: the lower courts because here the Boston Federal judge said

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Speaker 4: the purge would lead the Department unable to perform duties

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Speaker 4: required under US law. Are the conservative just ignoring what

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Speaker 4: the district court judges find they seem to.

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Speaker 2: Be which is inappropriate because on questions of fact, appellate

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Speaker 2: courts are supposed to be highly deferential to the lower courts.

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Speaker 2: That's true now, that was true at the time of

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Speaker 2: the founding, So that should not be a difficult proposition

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Speaker 2: for originalists in this case.

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Speaker 4: As you said, there's no opinion, so we don't know

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Speaker 4: what they based this on. But can we assume that

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Speaker 4: they found the government would win on the merits.

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Speaker 2: That's really the only plausible explanation. The lower Court's decision

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Speaker 2: seems to have met all procedural requirements. The lower court

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Speaker 2: was preserving the status quaal, which is a traditional form

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Speaker 2: of an injunction. And clearly there is irreparable injury alleged

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Speaker 2: by the plaintiffs that would be impossible to address if

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Speaker 2: the department is in fact collapsed. So the court must

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Speaker 2: be concluding that plaintiffs will ultimately lose on the merits,

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Speaker 2: But it doesn't tell us how, and I can't guess.

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Speaker 4: Jes As Sonya Sotomayor, who wrote the dissent on behalf

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Speaker 4: of the three liberal justices, said the decision was indefensible,

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Speaker 4: handing the president the power to repeal statutes by firing

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Speaker 4: all those necessary to carry them out. Do you agree

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Speaker 4: with her dissent?

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Speaker 2: I'm afraid I do. The Supreme Court has talked in

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Speaker 2: other settings about the effects of actions. When it found

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Speaker 2: the president couldn't be criminally prosecuted for actions taken in office,

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Speaker 2: the court couldn't find anything in the concuition or statutes

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Speaker 2: that supports them. What the Court said is the effect

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Speaker 2: of this who would be the week in the president

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Speaker 2: too much? Well, the effect of what the president has

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Speaker 2: done to the Department of Education is to collapse the department,

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Speaker 2: and there's a lower court that hurd a great deal

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Speaker 2: of evidence that has reached that conclusion. It's disturbing that

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Speaker 2: the Supreme Court is not recognizing those effects when it

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Speaker 2: was so eager to do so in other cases.

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Speaker 4: Since April, the Supreme Court has signed with Trump every

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Speaker 4: time he made an emergency request. That's fifteen times, on

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Speaker 4: issues ranging from immigration and the firing of federal workers

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Speaker 4: to dismissing transgender service members from the military. Is that

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Speaker 4: a contrast to the way the Supreme Court treated President Biden.

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Speaker 2: It's a contrast of the way they treated President Biden,

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Speaker 2: who had many of his most important policies and joined

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Speaker 2: from day one, including policies that would have been much

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Speaker 2: easier to unwind if they were ultimately found unlawful than,

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Speaker 2: for example, destroying the Education Department or destroying you as aid.

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Speaker 2: This is also more deferential than we saw in the

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Speaker 2: first few months of this administration, which is even more disturbing.

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Speaker 4: Can you hazard a guess as to why they're giving

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Speaker 4: Trump everything he wants? Are they just throwing up their

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Speaker 4: hands and saying he's the president?

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Speaker 2: Well, the Chief Justice has long been known for wanting

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Speaker 2: to present as united a court as possible, and the

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Speaker 2: Chief Justice in the first month of the administration was

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Speaker 2: able to get some of his conservative colleagues to join

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Speaker 2: him in the liberals in reigning in the excesses of

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Speaker 2: this administration. I'm guessing that the Chief Justice has reached

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Speaker 2: the point of despairing of getting his colleagues to join him,

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Speaker 2: and is not eager to override the administration on bear

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Speaker 2: five four or six three votes.

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Speaker 4: Trump and Education Secretary Linda McMahon have repeatedly said that

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Speaker 4: this is going to return responsibility for education to the states.

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Speaker 4: But don't the States already have the brunt of responsibility

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Speaker 4: for education?

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Speaker 2: Of course they do. Education. This country's overwhelmingly state funded,

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Speaker 2: even more overwhelmingly state controlled. The Department of Education has

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Speaker 2: been limited to providing additional funds where state and local

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Speaker 2: resources are insufficient, and providing things that are more efficiently

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Speaker 2: purchased on a national level, such as curriculums such as

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Speaker 2: guidance and sharing of best practices. The Department of Education

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Speaker 2: is a well of the least intrusive federal agencies. Statement

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Speaker 2: doesn't make very much them.

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Speaker 4: The Trump administration says they want to return education to

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Speaker 4: the States, but on Monday, twenty four states and the

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Speaker 4: District of Columbia sued the Trump administration for withholding more

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Speaker 4: than six billion dollars in federal funding for education programs.

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Speaker 4: North Carolina Attorney General Jeff Jackson said the consequences could

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Speaker 4: be dire for American students.

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Speaker 1: The effect is going to be massive, and it's going

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Speaker 1: to be immediate. This is plainly against the laws, against

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Speaker 1: the constitutions, against the impoundment. From a legal standpoint, this

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Speaker 1: is not a hard case.

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Speaker 4: So the Trump administration's actions seem to be a little contradictory.

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Speaker 2: Yes, which suggests that this is more of a nuilist

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Speaker 2: approach than a different philosophy. You wilect a different president,

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Speaker 2: you should expect that they'll pursue a different philosophy. But

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Speaker 2: so far, what we're seeing here is or wrecking ball.

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Speaker 2: We know they're against lots and lots of things, it's

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Speaker 2: not clear what they're for.

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Speaker 4: Trump has argued in the past that, you know, the

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Speaker 4: Education Department is unnecessary and also a tool of woke culture.

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Speaker 4: The agency is charged with enforcing civil rights laws that

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Speaker 4: bar discrimination and federally funded schools, and that office is

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Speaker 4: going to be hit particularly hard by this. It's going

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Speaker 4: to lose about half its staff and seven of eleven

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Speaker 4: regional offices. I mean, do you think that's part of

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Speaker 4: the goal here to eliminate that.

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Speaker 2: It's hard to know, because this administration has used civil

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Speaker 2: rights allegations to buttress its attack on colleges and universities.

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Speaker 2: So it's clearly interested in using the Education Department as

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Speaker 2: a club. If you want to talk about limiting the

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Speaker 2: role of federal government, having it try to micromanage how

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Speaker 2: a university makes faculty appointments and selects people for tenure.

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Speaker 2: It's a huge overreach beyond the traditional role of the

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Speaker 2: federal government, and that was not done under Joe Biden

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Speaker 2: or Barack Obama. That's something that this administration has innovated,

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Speaker 2: though they're not very consistent about whether they want a

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Speaker 2: strong or a weak education department.

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Speaker 4: David, you often give me examples from history, anything in

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Speaker 4: US history that's instructive here.

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Speaker 2: There's one thing that strikes me about this, which is

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Speaker 2: that this Court has told us again and again that

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Speaker 2: it's originalist. The fourth law that Congress passed after the

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Speaker 2: ratification of the Constitution was to start creating cabinet departments.

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Speaker 2: So the first Congress understood that it got to choose

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Speaker 2: what cabinet departments we would have. And you would think

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Speaker 2: an originalist court would pay special attention to that and

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Speaker 2: not allow a president to make these decisions. If George

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Speaker 2: Washington couldn't decide what cabinet departments we would have, Shirley

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Speaker 2: Donald Trump can't.

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Speaker 4: And another point from his street, George Washington refused to

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Speaker 4: run for a third term. Thanks so much, David. That's

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Speaker 4: constitutional law professor David Super of Georgetown Law. And according

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Speaker 4: to a Quinnipiac poll in March, sixty percent of voters

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Speaker 4: opposed Trump's plan to eliminate the Education Department, with thirty

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Speaker 4: three percent supporting it. Coming up next on the Bloomberg

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Speaker 4: Law Show, Trump's anti trust enforcers clear three deals worth

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Speaker 4: sixty three billion dollars in one week. We'll talk about

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Speaker 4: what that signals for the next four years. Remember you

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Speaker 4: can always get the latest legal news by listening to

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Speaker 4: our Bloomberg Law podcast wherever you get your favorite podcasts.

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Speaker 4: I'm June Grosso and you're listening to Bloomberg.

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Speaker 6: I see it as my job to scrutinize deals consistently

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Speaker 6: with the timeline Congress created and our antitrust laws. And

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Speaker 6: if we think that they are illegal and we think

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Speaker 6: that we can win in court, we're going to go

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Speaker 6: to court. But if we don't think that they are

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Speaker 6: illegal or we don't think we can win in court,

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Speaker 6: the FTC is going to get out of the way.

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Speaker 4: Federal Trade Commission Chair Andrew Ferguson has repeatedly said that

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Speaker 4: if his agency can resolve issues with a proposed merger,

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Speaker 4: it will get out of the way. And it appears

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Speaker 4: that both Trump's anti trust enforcers are getting out of

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Speaker 4: the way of multi billion dollar deals. In the last

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Speaker 4: week of June, the FTC cleared candymaker mars thirty six

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Speaker 4: billion dollar acquisition of pringles maker Kellinova, It approved Omnicom's

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Speaker 4: thirteen point five billion dollar buyout of rival into Public,

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Speaker 4: which will create the world's largest advertising agency, and the

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Speaker 4: Department of Justice cleared Hewlett Packard's fourteen billion dollar acquisition

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Speaker 4: of Juniper Networks. More than sixty three billion dollars in

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Speaker 4: deals cleared in the same week. Who better to explain

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Speaker 4: what's happening with the anti trust regulators than my guest

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Speaker 4: Harry First, a professor at NYU Law School who specializes

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Speaker 4: in anti trust, Harry the FTC, and the Justice Department

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Speaker 4: cleared three deals worth more than sixty three billion dollars

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Speaker 4: in the last week of June. What does this tell you?

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Speaker 4: Is it the change in management?

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Speaker 7: Well, there's certainly a change in management. The question that

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Speaker 7: everyone asked when management changed is what direction? So I

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Speaker 7: think people were looking at two big things. One where

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Speaker 7: the cases against the dominant platforms, the big tech platforms

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Speaker 7: that were ongoing neared five of those what would they

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Speaker 7: do with those? And the second is what were they

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Speaker 7: going to do with mergers? So on the first they've

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Speaker 7: kept them going. They haven't dismissed anything. They're litigating them

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Speaker 7: just like they were before, in fact emphasizing the continuity

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Speaker 7: of the position of departments taking in some ways maybe

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Speaker 7: not surprising given sort of the maybe populism streak in

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Speaker 7: the Trump administration, but in some way surprising because they

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Speaker 7: have moved closer in closer to put up or shut up.

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Speaker 7: You know, you have to remedy these things. So that's

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Speaker 7: where we are with those. The other side was the mergers,

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Speaker 7: and out of the box they filed the case HP's

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Speaker 7: acquisition of Juniper Networks, and it was the first case

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Speaker 7: they filed, and it looked like a Biden complaint. I

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Speaker 7: think people were saying, look, what they're going to do

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Speaker 7: is they'll they'll pull the merger guidelines that were issued

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Speaker 7: in twenty twenty three by the Biden FTC and Justice

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Speaker 7: Department widely viewed as pretty aggressive in terms of enforcement. Yeah,

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Speaker 7: maybe they're going to pull those and pull back from

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Speaker 7: merger enforcement. But what we saw in that first case

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Speaker 7: was they file the case, they cite the twenty twenty

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Speaker 7: three guidelines, they follow them, they say, hey, this case

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Speaker 7: is presumptively bad because it increases concentration, and you know,

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Speaker 7: they're trying to suppress the more innovative firm.

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Speaker 3: WHOA.

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Speaker 7: That seems to me surprising, So I thought, well, maybe

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Speaker 7: it's something in the changeover. That person who signed it,

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Speaker 7: maybe doesn't understand what he's done, or who knows. You know,

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Speaker 7: we're not well supervised. But they kept it going. And

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Speaker 7: so the next question is, well, what are they going

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Speaker 7: to do with these cases? And you're right now we're

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Speaker 7: seeing a string of dismissals.

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Speaker 4: Let's look closer at the Hewlett Packard acquisition of Juniper Networks.

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Speaker 4: What was the settlement like there?

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Speaker 7: The Justice Department announced the settlement. So on a Saturday,

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Speaker 7: a hot news Yeah, thatatur day, June the twenty eighth,

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Speaker 7: they announced the settlement of HP Juniper. This is a

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Speaker 7: fourteen billion dollar acquisition. So the settlement that they explain,

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Speaker 7: and this isn't over yet because the judge has to

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Speaker 7: approve it spins off some part of HPE that does

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Speaker 7: networks for small business. So it looks like small ball.

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Speaker 7: You know, it's not even clear how that's going to

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Speaker 7: affect competition. Remember they pleaded that this was highly constant, traded, industry,

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Speaker 7: anti competitive, strong head to head competition between the two firms.

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Speaker 7: What's the other part. The other part is a compulsory

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Speaker 7: license to the software that Juniper has called missed. Now,

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Speaker 7: a compulsory license means actually the merge firm gets to

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Speaker 7: keep it. They don't have to get rid of it.

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Speaker 7: All they have to do is license it for which

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Speaker 7: they'll get some money, but non exclusively, so they get

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Speaker 7: to keep it. And then do they have a potential

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Speaker 7: licensee for this, No, they don't seem to have anyone.

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Speaker 7: They are going to appoint a trustee. So who's going

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Speaker 7: to take this license? Is as valuable? Isn't it not explained?

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Speaker 7: And they say maybe a second party will show up. Well,

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Speaker 7: a second party shows up, says the decree with a

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Speaker 7: bid of over eight million dollars, they can have a

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Speaker 7: license to eight million dollars. Might be a second bid.

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Speaker 7: Remember this acquistition is of fourteen billion dollars acquisitions. So

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Speaker 7: is an exclusive license to this software valuable? Will someone

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Speaker 7: come up and take it? Who might it be? No idea?

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Speaker 7: So that's where we are. Looks to me like we

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Speaker 7: can call it, shall we say, a really weak remedy

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Speaker 7: for a case that's pleaded That looked very strong. So

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Speaker 7: this is your insight into where merger enforcement might be going.

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Speaker 7: The first case out of the box looks strong when

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Speaker 7: it's pleded. Looks to me at the moment, ay, maybe

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Speaker 7: more information will turn up pretty weak on the remedy

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Speaker 7: that they go forward to allow the merger to go forward.

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Speaker 7: And this seems to be the mantra that you know,

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Speaker 7: we've got these strong guidelines on the books that look

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Speaker 7: very pro enforcement. Maybe we'll file a case and then

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Speaker 7: have a weak remedy. Or here's another good part. Maybe

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Speaker 7: we won't file a case at all and just let

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Speaker 7: these things go through.

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Speaker 4: The Omnicon deal creates the world's largest advertising agency, and

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Speaker 4: they got FTC approval by agreeing to stop withholding online

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Speaker 4: ads for political reasons, so no economic concessions, you know.

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Speaker 7: Another tactic is just to let it go through. And

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Speaker 7: in the advertising agency creates the largest advertising agency ever

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Speaker 7: for an administration that talks about how horrible concentration is.

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Speaker 7: You have to wonder exactly what's going on. There is

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Speaker 7: one more moler I guess interesting case in any trust

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Speaker 7: division allowing a merger to go forward, and it's a

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Speaker 7: cellular phone merger and it's T Mobile acquiring a smaller

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Speaker 7: company called US Cellular, and that they led through without anything.

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Speaker 7: But interestingly, they filed something that's called a closing statement

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Speaker 7: explaining why they closed case. This is pretty rare for

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Speaker 7: the Justice Department to do or the FTC. They don't

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Speaker 7: usually explain why they don't do something, and there's a

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Speaker 7: lot of controversy about this, but this one they explained,

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Speaker 7: and I urge people to go and read it because

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Speaker 7: it's sort of funny. It's like, I think of you

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Speaker 7: remember the old Chinese fortune cookies, oh yeah, you know, right,

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Speaker 7: and you always thought you'd open one up whether the

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Speaker 7: fortune would be help I'm being held prisoner in a

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Speaker 7: Chinese fortune cookie factory. Well this was sort of like that,

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Speaker 7: because the closing statement was almost a statement about why

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Speaker 7: this merger was so any competitive and why it's so

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Speaker 7: needed to be stopped that we didn't do anything. And

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Speaker 7: what's also sort of great about it, and it is

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Speaker 7: from the closing statement, this is just a department writing

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Speaker 7: the company understood the unmet needs of customers. Okay, this

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Speaker 7: is the company that's going to be acquired, the company

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Speaker 7: that understood the unmet needs of customers, right, and they

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Speaker 7: called the customer's farm town, frugal and hart Land families.

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Speaker 7: All right, it's just great. And these in some ways

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Speaker 7: would sound like you know, JD. Van throte this, and

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Speaker 7: they are the consumers. You would think this administration purports

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Speaker 7: the one to protect, and instead what they're going to

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Speaker 7: be allowed to do is to join the Sprint network,

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Speaker 7: which presumably they decide not to do in the first

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Speaker 7: place when they signed up with US Cellular. And then

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Speaker 7: it goes on to lament the concentration in the cell

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Speaker 7: phone market. It's a big three, and we the Justice Department,

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Speaker 7: and we don't seem, you know, to be doing anything

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Speaker 7: about this. It is truly a curious document. Final curious

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Speaker 7: point on this Sprint T Mobile merger was supposed to

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Speaker 7: establish a fourth carrier, you know, through Dish. So Sprint

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Speaker 7: had to give Boost Mobile system to Dish to help

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Speaker 7: them establish a fourth carrier. No hint in this state

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Speaker 7: that there's a fourth carrier that might emerge, even though

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Speaker 7: this apartment is at this very moment supervising the decree

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Speaker 7: that they entered that purported to establish or hope to

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Speaker 7: establish a fourth carrier. So this is curious, bizarre prisoner

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Speaker 7: in the Fortune Cookie factory material. But again it's sort

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Speaker 7: of this why we see these problems, But hey, I

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Speaker 7: don't think we're going to do anything about it.

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Speaker 4: Harry FTC chair Ferguson has criticized the buying administration for

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Speaker 4: its refusal to negotiate settlements. Listen to what he said

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Speaker 4: and tell me what you think.

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Speaker 6: In the previous administration, a deal would enter the FTC

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Speaker 6: and it would sort of disappear, and sometimes it could

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Speaker 6: disappear for months while you know, novel ideas were floated,

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Speaker 6: different theories and sometimes it sort of seemed like the

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Speaker 6: FTC was hoping that deals would die on the vine

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Speaker 6: while they wait for regulatory clearance. I want nothing to.

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Speaker 4: Do with that.

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Speaker 7: I mean, you can always make a deal if you're

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Speaker 7: willing to give up a lot, that's not hard to do.

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Speaker 7: You either don't do anything, you know, the cell phone acquisition,

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Speaker 7: or you do something weak the HP Juniper Networks merger.

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Speaker 7: There was reason why the Biden administration forces said we're

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Speaker 7: backing away from all these deals is because the remedies

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Speaker 7: that had been agreed in so many of these deals

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Speaker 7: turned out to be ineffective. There were studies of this

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Speaker 7: that you know, you'd say, oh boy, this will re

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Speaker 7: establish competition in the market, and then it didn't. And

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Speaker 7: so what happened that people basically went forward and we

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Speaker 7: lost competition. You know, every once in a while to

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Speaker 7: be some good remedy. But basically the argument was, you know,

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Speaker 7: it's really hard to create competition through these government decrees.

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Speaker 7: The better thing is not to let competition go away

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Speaker 7: by allowing them. So, you know, that was the basis

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Speaker 7: of the policy in the Justice Department the FPC. Not

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Speaker 7: that they didn't settle cases, they didn't and not all

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Speaker 7: of them were actually effective. They weren't, but the overall

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Speaker 7: thrust was worth seeing. We're not settling. And then parties

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Speaker 7: were put together deals knowing that there was a greater

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Speaker 7: chance of litigation. Now it's gone the other way, and

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Speaker 7: you know, I think that this is what a deal

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Speaker 7: making the administration would want. And it looks to me

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Speaker 7: like that's where they're going, always with the ability to

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Speaker 7: bring suit in a case that suits them, because the

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Speaker 7: twenty twenty freaquent oidelines have a lot of discretion in them.

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Speaker 7: And the flip side of we'll negotiate a lot is

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Speaker 7: but maybe not with you. So we have yet to

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Speaker 7: see with whom they are tough.

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Speaker 4: It's always great to get you insides. Harry some from

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Speaker 4: inside a fortune cookie. Thanks so much. That's Professor Harry

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Speaker 4: First of NYU Law School. Coming up next on the

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Speaker 4: Bloomberg Law Show. Thousands of Afghans get a temporary reprieve

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Speaker 4: from being deported. We'll talk to their attorney. I'm June

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Speaker 4: Grosso and you're listening to Bloomberg. A reprieve for nearly

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Speaker 4: twelve thousand Afghans. The Fourth Circuit Court of Appeals has

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Speaker 4: stepped in to keep protections in place that have prevented

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Speaker 4: the Trump administration from deporting them, at least until Monday.

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Speaker 4: The administration has moved aggressively to remove temporary protected status,

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Speaker 4: or TPS from Afghans and hundreds of thousands of people

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Speaker 4: from six other countries as part of the administration's efforts

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Speaker 4: to ramp up deportations. Joining me is Samuel Siegel, senior

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Speaker 4: counsel at the Institute for Constitutional Advocacy and Protection at

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Speaker 4: Georgetown Law. They're suing the administration and over the revocation

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Speaker 4: of temporary protected status for Afghans on behalf of KASA,

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Speaker 4: a nonprofit immigrant advocacy group. So, before the appeals court

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Speaker 4: stepped in, the Trump administration had planned to deport nearly

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Speaker 4: twelve thousand Afghans this past Monday. Tell us what happened.

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Speaker 5: So, the Trump administration had announced that it was ending

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Speaker 5: temporary protected status for Afghanistan this week, it announced that

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Speaker 5: the conditions that initially led to the designation of that country,

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Speaker 5: the ongoing on conflict between Taliban and other insurgent groups,

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Speaker 5: and the extraordinary humanitarian conditions, were essentially no longer so

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Speaker 5: severe that it merited that designation. I guess to take

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Speaker 5: a step back and talk a little bit about TPS.

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Speaker 5: TPS is a status that the Secretary of Homeland Security

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Speaker 5: can designate a particular country for based on certain conditions

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Speaker 5: in those countries, particularly if the country's experiencing an ongoing

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Speaker 5: armed conflict, if there's a natural disaster, or if there's

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Speaker 5: another extraordinary condition in the country. If the Secretary makes

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Speaker 5: that conclusion, then he or she will designate the country

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Speaker 5: for TPS, which allows individuals from those countries to live

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Speaker 5: and work in this country for a particular set period

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Speaker 5: of time. Secretary of Manorcus concluded that Afghanistan merited that

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Speaker 5: determination back in twenty twenty two and extended in twenty

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Speaker 5: twenty three based on those conflicts and the conditions in Afghanistan,

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Speaker 5: and Secretary norm at least purported to say that those

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Speaker 5: conditions no longer existed now. Of course, our challenge, one

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Speaker 5: of our arguments is in fact, that purported rationale for

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Speaker 5: the decision is not the one that's actually motivating the

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Speaker 5: actions here. Our argument is that this is a preordained

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Speaker 5: decision as part of the Trump administration's broader effort to

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Speaker 5: reduce the number of non white immigrants in this country,

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Speaker 5: and that's the basis on which we have asked the

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Speaker 5: Fourth Circuit to pause the PPS termination while the appeal

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Speaker 5: plays out.

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Speaker 4: Also arguing that the Homeland Security Secretary's determination that there

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Speaker 4: are notable improvements in the security and economic situation in

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Speaker 4: Afghanistan and that Afghan nationals can return safely, are you

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Speaker 4: also arguing that that's actually incorrect.

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Speaker 5: We're not making that specific argument, in part because of

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Speaker 5: some jurisdictional bars on what the courts are allowed to consider.

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Speaker 5: I think what we are as pointing to that the

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Speaker 5: conditions in the country are not good, and this further

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Speaker 5: supports the argument that the purported rationales that things have

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Speaker 5: improved are not the actual one. So it's that mismatch

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Speaker 5: between what's actually going on in Afghanistan and the actions

436
00:27:43,480 --> 00:27:46,760
Speaker 5: here that support our argument that even if things might

437
00:27:46,760 --> 00:27:48,840
Speaker 5: have improved a little bit, and that's not really the

438
00:27:48,840 --> 00:27:51,560
Speaker 5: reason that she's doing that. And I would just note

439
00:27:51,600 --> 00:27:54,800
Speaker 5: to this effect. You know, as part of the litigation here,

440
00:27:55,720 --> 00:27:59,399
Speaker 5: the administration had to produce an administrative record, which is

441
00:27:59,440 --> 00:28:02,280
Speaker 5: all the things that were in front of the Secretary

442
00:28:02,359 --> 00:28:06,399
Speaker 5: when she made her decision, and in November of twenty

443
00:28:06,440 --> 00:28:10,439
Speaker 5: twenty four, the US Customs and Immigration Service concluded that,

444
00:28:10,480 --> 00:28:14,640
Speaker 5: and I'm going to quote here quote Afghanistan's civilian population

445
00:28:14,760 --> 00:28:19,000
Speaker 5: faces dire challenges, including a collapsing economy and healthcare system,

446
00:28:19,520 --> 00:28:24,119
Speaker 5: ubiquitous food and security exacerbated by drought, and widespread insecurity

447
00:28:24,200 --> 00:28:27,080
Speaker 5: due to decades of armed conflict and insurgency that are

448
00:28:27,240 --> 00:28:31,959
Speaker 5: entering a new danger phase. So again, we're not necessarily

449
00:28:32,080 --> 00:28:35,400
Speaker 5: challenging the underlying factual conclusion of what's going on here,

450
00:28:35,440 --> 00:28:37,800
Speaker 5: but we're saying that these kinds of statements from the

451
00:28:37,840 --> 00:28:41,320
Speaker 5: federal government itself demonstrate that there's really something else going

452
00:28:41,400 --> 00:28:41,920
Speaker 5: on here.

453
00:28:42,280 --> 00:28:46,560
Speaker 4: So Federal Judge Schwang allowed your challenge to TPS to

454
00:28:46,600 --> 00:28:51,280
Speaker 4: go forward, but he declined to halt the administration's policy

455
00:28:51,840 --> 00:28:55,480
Speaker 4: and preserve GPS protections. He found that your group hadn't

456
00:28:55,600 --> 00:29:01,280
Speaker 4: established sufficient likelihood of success on the merits. Why he

457
00:29:01,320 --> 00:29:03,640
Speaker 4: thought that you wouldn't succeed on the merits.

458
00:29:03,240 --> 00:29:07,000
Speaker 5: Here, I think Judge Swang issued a well considered and

459
00:29:07,080 --> 00:29:10,000
Speaker 5: balanced opinion. He concluded, as you said, that our challenge

460
00:29:10,040 --> 00:29:13,400
Speaker 5: can go ahead, notwithstanding a couple of jurisdictional arguments that

461
00:29:13,440 --> 00:29:16,560
Speaker 5: the defendants had raised. And he also concluded by pointing

462
00:29:16,600 --> 00:29:19,960
Speaker 5: to things like the US Custom and Immigration Service report

463
00:29:19,960 --> 00:29:23,680
Speaker 5: that I just quoted that we had plausibly alleged that

464
00:29:23,760 --> 00:29:26,560
Speaker 5: the action taken with respect to Afghanistan is part of

465
00:29:26,560 --> 00:29:29,120
Speaker 5: a broader policy to reduce the number of non white

466
00:29:29,120 --> 00:29:33,400
Speaker 5: immigrants in this country and to effectively terminate almost all

467
00:29:33,480 --> 00:29:37,080
Speaker 5: TPS designations. But then he said, we had not yet

468
00:29:37,120 --> 00:29:40,440
Speaker 5: introduced enough evidence to sort of get over that likelihood

469
00:29:40,560 --> 00:29:43,160
Speaker 5: of the success on the Merits hump, and so there's

470
00:29:43,200 --> 00:29:46,480
Speaker 5: some delta there in his mind that we hadn't yet demonstrated,

471
00:29:47,000 --> 00:29:49,200
Speaker 5: and he said, look, I'm going to allow this claim

472
00:29:49,200 --> 00:29:52,360
Speaker 5: to go forward, but at this point I'm not going

473
00:29:52,400 --> 00:29:56,320
Speaker 5: to enter relief. So we respectfully disagree with that part

474
00:29:56,360 --> 00:30:00,200
Speaker 5: of Judge Chwang's ruling. We think that the allegations we

475
00:30:00,280 --> 00:30:03,040
Speaker 5: made here and the evidence before the court was sufficient

476
00:30:03,080 --> 00:30:10,200
Speaker 5: to a minimum temporarily pause the termination of Afghanistan's TPS

477
00:30:10,200 --> 00:30:13,920
Speaker 5: designation while we get that discovery wall things play out.

478
00:30:14,080 --> 00:30:15,840
Speaker 5: And that's sort of the similar request that we've made

479
00:30:15,880 --> 00:30:18,800
Speaker 5: of the Fourth Circuit is just to postpone this agency

480
00:30:18,840 --> 00:30:21,680
Speaker 5: action while the appeal plays out. And one thing I'll

481
00:30:21,720 --> 00:30:24,960
Speaker 5: just note here, you know, Judge Chwang noted that other

482
00:30:25,080 --> 00:30:29,520
Speaker 5: courts have entered preliminary relief of some sort in response

483
00:30:29,560 --> 00:30:32,120
Speaker 5: to similar claims and similar amounts of evidence in the

484
00:30:32,160 --> 00:30:35,240
Speaker 5: past and the first Trump administration and said, well, we

485
00:30:35,360 --> 00:30:38,800
Speaker 5: hadn't produced enough evidence here. I think it's important to

486
00:30:38,880 --> 00:30:42,600
Speaker 5: note that in those cases, the time between when the

487
00:30:43,000 --> 00:30:46,240
Speaker 5: end of the TPS designation was announced and when it

488
00:30:46,280 --> 00:30:49,360
Speaker 5: took effect was in most cases more than a year.

489
00:30:49,440 --> 00:30:52,520
Speaker 5: So those parties had, you know, much more time to

490
00:30:52,560 --> 00:30:55,640
Speaker 5: produce the kind of evidence that Judge Chwang is asking for.

491
00:30:56,240 --> 00:30:59,080
Speaker 5: When we're asking for just this sort of temporary relief wall,

492
00:30:59,160 --> 00:31:01,600
Speaker 5: things are playing out the merits. We think that first

493
00:31:01,640 --> 00:31:03,480
Speaker 5: of all, the evidence that we have produced and the

494
00:31:03,480 --> 00:31:06,040
Speaker 5: things that we've pointed to, like the thing from USCS

495
00:31:06,080 --> 00:31:08,920
Speaker 5: that I pointed you to, like some other statements from

496
00:31:09,040 --> 00:31:13,000
Speaker 5: President Trump and Secretary Nome, demonstrate that this is part

497
00:31:13,040 --> 00:31:16,680
Speaker 5: of a preordained effort and demonstrate that we will likely

498
00:31:16,680 --> 00:31:19,680
Speaker 5: succeed on the merits when we get there, especially as

499
00:31:19,720 --> 00:31:22,200
Speaker 5: we get into discovery and produce more evidence in support

500
00:31:22,200 --> 00:31:22,840
Speaker 5: of our argument.

501
00:31:23,440 --> 00:31:26,440
Speaker 4: The Fourth Circuit gave you an administrative stay for a

502
00:31:26,480 --> 00:31:29,880
Speaker 4: week until Monday. What's been happening.

503
00:31:29,840 --> 00:31:32,640
Speaker 5: Right so for right now, as you mentioned at the outset.

504
00:31:32,840 --> 00:31:36,080
Speaker 5: The Afghan PPS designation was set to expire on Monday.

505
00:31:36,760 --> 00:31:40,560
Speaker 5: By virtue of the Fourth Circuit's decision, it postpones that

506
00:31:40,640 --> 00:31:43,040
Speaker 5: action for at least that week, which means that Afghans

507
00:31:43,040 --> 00:31:45,440
Speaker 5: who are facing the possibility of either having to leave

508
00:31:45,480 --> 00:31:48,600
Speaker 5: this country or exist in some legal limbo and not

509
00:31:48,640 --> 00:31:50,520
Speaker 5: be able to work, are able to do so for

510
00:31:50,840 --> 00:31:53,920
Speaker 5: at least this week. In the interim, the Court has

511
00:31:54,000 --> 00:31:57,240
Speaker 5: asked us to brief our request formally called a postponement

512
00:31:57,240 --> 00:32:00,520
Speaker 5: of agency action pending appeal, and then we'll get it decision,

513
00:32:00,720 --> 00:32:04,160
Speaker 5: presumably at some point before Monday at eleven to fifty

514
00:32:04,240 --> 00:32:04,960
Speaker 5: nine pm.

515
00:32:05,360 --> 00:32:08,600
Speaker 4: Is this a losing battle in the end, because if

516
00:32:08,600 --> 00:32:11,480
Speaker 4: and when it reaches the Supreme Court, you're not likely

517
00:32:11,520 --> 00:32:15,920
Speaker 4: to find a receptive audience, at least among the conservative justices.

518
00:32:16,240 --> 00:32:19,000
Speaker 4: At the end of May, the Supreme Court allowed the

519
00:32:19,000 --> 00:32:24,080
Speaker 4: Trump administration to immediately strip the legal right to temporarily

520
00:32:24,160 --> 00:32:26,920
Speaker 4: live and work in the US from as many as

521
00:32:26,960 --> 00:32:31,480
Speaker 4: half a million people from Cuba, Haiti, Nicaragua, and Venezuela.

522
00:32:31,760 --> 00:32:34,280
Speaker 4: And that followed another order in May that allowed the

523
00:32:34,320 --> 00:32:38,800
Speaker 4: administration to end TPS protections for three hundred and fifty

524
00:32:38,840 --> 00:32:43,720
Speaker 4: thousand Venezuelans. So is the Supreme Court likely to end

525
00:32:43,760 --> 00:32:46,320
Speaker 4: TPS protections for Afghans as well.

526
00:32:46,760 --> 00:32:48,640
Speaker 5: So I don't want to make too many predictions about

527
00:32:48,680 --> 00:32:50,600
Speaker 5: exactly what the Supreme Court is going to do here.

528
00:32:50,640 --> 00:32:52,920
Speaker 5: I will say that we're very confident in our case,

529
00:32:52,960 --> 00:32:56,000
Speaker 5: and I'd just like to parse out those prior grants

530
00:32:56,040 --> 00:32:59,080
Speaker 5: of I think stays of lower court orders. So with

531
00:32:59,120 --> 00:33:02,560
Speaker 5: respect to the qubations Venezuelans and Nicaraguans, that was actually

532
00:33:02,560 --> 00:33:05,880
Speaker 5: with respect to a parole program that had been adopted

533
00:33:05,920 --> 00:33:10,040
Speaker 5: by the Biden administration, so it didn't involve temporary protected status,

534
00:33:10,080 --> 00:33:12,840
Speaker 5: and I think, you know, sort of trying to extrapolate

535
00:33:12,880 --> 00:33:14,640
Speaker 5: what the court said they are and apply it here,

536
00:33:14,680 --> 00:33:17,120
Speaker 5: I think is a very difficult thing. Similarly, with respect

537
00:33:17,160 --> 00:33:19,560
Speaker 5: to the Venezuelan program, that was was respect to the

538
00:33:19,560 --> 00:33:22,520
Speaker 5: temporary protected status, but in that case the arguments that

539
00:33:22,560 --> 00:33:24,760
Speaker 5: were being made were different from the ones that are

540
00:33:24,800 --> 00:33:25,719
Speaker 5: being made here.

541
00:33:25,920 --> 00:33:26,200
Speaker 2: There.

542
00:33:26,640 --> 00:33:31,080
Speaker 5: For example, the plaintiffs argued that Secretary Majorcists, who had

543
00:33:31,240 --> 00:33:35,360
Speaker 5: extended the TPS designation for Venezuela for about eighteen months

544
00:33:35,400 --> 00:33:38,680
Speaker 5: at the end of the Biden administration, and then Secretary

545
00:33:38,800 --> 00:33:42,800
Speaker 5: Nome had revoked that extension. The plaintiffs there argued that

546
00:33:42,880 --> 00:33:46,880
Speaker 5: Secretary Nome doesn't have that sort of authority. We, by contrast,

547
00:33:46,920 --> 00:33:50,840
Speaker 5: here are arguing that the reasons that we're given were pretextual,

548
00:33:50,920 --> 00:33:53,640
Speaker 5: that this was a preordained effort. Also, you know, I

549
00:33:53,640 --> 00:33:57,920
Speaker 5: think there are extremely strong equities here, as Judge Schwang

550
00:33:57,920 --> 00:34:01,760
Speaker 5: recognized in his decision. I mean with Afghans in particular,

551
00:34:01,840 --> 00:34:05,600
Speaker 5: we're talking about individuals who served our country. One of

552
00:34:05,640 --> 00:34:09,560
Speaker 5: the members of Kassa who's our client here is a

553
00:34:09,600 --> 00:34:12,560
Speaker 5: person named Bs who faced death threats due to her

554
00:34:12,600 --> 00:34:15,919
Speaker 5: work as an interpreter for international and United States agencies,

555
00:34:16,640 --> 00:34:18,880
Speaker 5: and she's fearful that if she's returned, she's going to

556
00:34:18,880 --> 00:34:22,400
Speaker 5: be targeted by the Taliban if she goes back to Afghanistan.

557
00:34:22,719 --> 00:34:24,480
Speaker 5: So again, I think it's always a little bit of

558
00:34:24,520 --> 00:34:27,200
Speaker 5: a hazardous proposition of guessing what the Supreme Court might

559
00:34:27,280 --> 00:34:29,719
Speaker 5: do if we get there. But we think that we've

560
00:34:29,719 --> 00:34:32,200
Speaker 5: got a very strong case and that what the Court

561
00:34:32,280 --> 00:34:34,840
Speaker 5: did with respect to Venezuela and with respect to the

562
00:34:34,840 --> 00:34:37,279
Speaker 5: parole program doesn't shed all that much light on what

563
00:34:37,320 --> 00:34:38,080
Speaker 5: it might do here.

564
00:34:38,680 --> 00:34:42,440
Speaker 4: Can some of the Afghans that you're representing apply for

565
00:34:42,640 --> 00:34:45,960
Speaker 4: special immigrant visas or asylum.

566
00:34:46,360 --> 00:34:48,920
Speaker 5: Some may be able to, you know, but I think

567
00:34:48,960 --> 00:34:52,520
Speaker 5: it's important to emphasize here that TPS is the bird

568
00:34:52,560 --> 00:34:55,640
Speaker 5: in the hand. It guarantees them the ability to be

569
00:34:55,680 --> 00:34:58,480
Speaker 5: in this country. It guarantees them the ability to work

570
00:34:58,520 --> 00:35:01,359
Speaker 5: in this country. It guarantees them under the statute, they

571
00:35:01,400 --> 00:35:04,920
Speaker 5: cannot be put in detention on the basis of their

572
00:35:04,960 --> 00:35:09,200
Speaker 5: immigration status. Things that may not apply to everyone that

573
00:35:09,360 --> 00:35:12,200
Speaker 5: is securing or in the process at least of securing

574
00:35:12,760 --> 00:35:15,759
Speaker 5: relief through other means. So there might be other things

575
00:35:15,800 --> 00:35:18,080
Speaker 5: that are available. Whether or not they will ever be

576
00:35:18,080 --> 00:35:20,719
Speaker 5: able to take advantage of those status, you know, who knows,

577
00:35:20,840 --> 00:35:25,120
Speaker 5: especially as this administration has assiduously worked to make those

578
00:35:25,200 --> 00:35:26,920
Speaker 5: kinds of relief further out of reach.

579
00:35:27,160 --> 00:35:29,960
Speaker 4: And how do you respond to the White House's statements

580
00:35:30,000 --> 00:35:33,880
Speaker 4: that Temporary protected Status was never intended to be a

581
00:35:33,920 --> 00:35:37,600
Speaker 4: de facto asylum program, and that's not supposed to be

582
00:35:37,680 --> 00:35:39,320
Speaker 4: just renewed over and over again.

583
00:35:39,840 --> 00:35:41,800
Speaker 5: And I think that's certainly right. I mean, it's baked

584
00:35:41,800 --> 00:35:46,200
Speaker 5: into the name temporary protected status, but there are specific

585
00:35:46,280 --> 00:35:49,879
Speaker 5: criteria that the Secretary is supposed to analyze in good

586
00:35:49,920 --> 00:35:52,760
Speaker 5: faith in determining whether or not to designate a country

587
00:35:52,760 --> 00:35:55,760
Speaker 5: in the first place, and to extend, including for example,

588
00:35:55,800 --> 00:36:00,040
Speaker 5: whether or not there's an ongoing armed conflict there. The

589
00:36:00,120 --> 00:36:04,600
Speaker 5: Secretary offers reasons that are contrary to one or offers

590
00:36:04,640 --> 00:36:08,120
Speaker 5: reasons that are pretextual. We just don't think that that's

591
00:36:08,120 --> 00:36:11,640
Speaker 5: the basis for being able to terminate a TPS protection.

592
00:36:11,719 --> 00:36:14,520
Speaker 5: And if she makes a good faith assessment, then this

593
00:36:14,560 --> 00:36:17,759
Speaker 5: can be terminated. And TPS designations have been terminated in

594
00:36:17,800 --> 00:36:20,960
Speaker 5: the past, just hasn't done what the statue requires in

595
00:36:21,000 --> 00:36:21,840
Speaker 5: this instance.

596
00:36:22,000 --> 00:36:24,920
Speaker 4: Thanks for joining me today. That's Samuel Siegel of the

597
00:36:25,000 --> 00:36:29,600
Speaker 4: Institute for Constitutional Advocacy and Protection at Georgetown Law. And

598
00:36:29,640 --> 00:36:31,800
Speaker 4: that's it for this edition of The Bloomberg Law Show.

599
00:36:32,120 --> 00:36:34,520
Speaker 4: Remember you can always get the latest legal news on

600
00:36:34,520 --> 00:36:38,799
Speaker 4: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

601
00:36:39,000 --> 00:36:44,040
Speaker 4: and at www dot Bloomberg dot com, Slash podcast, Slash Law,

602
00:36:44,440 --> 00:36:47,000
Speaker 4: and remember to tune into The Bloomberg Law Show every

603
00:36:47,080 --> 00:36:50,960
Speaker 4: weeknight at ten pm Wall Street Time. I'm June Grosso

604
00:36:51,120 --> 00:36:52,719
Speaker 4: and you're listening to Bloomberg