WEBVTT - Weekend Law: Google, Wartime Act & Chicago Bracing 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:09.960 --> 0:00:14.440 In the biggest tech antitrust case in three decades, Google 0:00:14.520 --> 0:00:18.880 avoided a breakup. A DC federal judge ruled against the 0:00:18.960 --> 0:00:23.560 government's most severe proposals for remedies, like a forced sale 0:00:23.560 --> 0:00:27.880 of its Chrome browser. Judge Ahme Meta had already found 0:00:27.920 --> 0:00:32.040 in August of last year that Google illegally dominated the 0:00:32.120 --> 0:00:35.879 search market by paying more than twenty five billion dollars 0:00:35.920 --> 0:00:39.120 to Apple and other companies to make its search engine 0:00:39.200 --> 0:00:43.320 the default on smartphones and web browsers. This ruling was 0:00:43.440 --> 0:00:46.560 all about the fix, and Google will have to make 0:00:46.600 --> 0:00:51.800 some concessions, including sharing online search data with rivals and 0:00:52.080 --> 0:00:56.720 ending exclusive contracts for distribution. My guest is anti trust 0:00:56.800 --> 0:01:01.360 expert Harry First, a professor at NYU lost Harry on 0:01:01.520 --> 0:01:05.520 the Department of Justice website. It says Department of Justice 0:01:05.600 --> 0:01:11.600 wins significant remedies against Google, but this falls far short 0:01:11.760 --> 0:01:15.959 of the severe remedies that the government wanted. How much 0:01:16.000 --> 0:01:18.840 of a setback is it for the government in its 0:01:18.880 --> 0:01:22.160 attempt to curb the power of the biggest tech companies. 0:01:22.760 --> 0:01:26.080 Well, you know, people often talk about things as being 0:01:26.120 --> 0:01:29.680 a win win and that's a good thing. So I 0:01:29.840 --> 0:01:33.600 think that the judge's decision is a win win, but 0:01:33.760 --> 0:01:36.760 not a good thing. I view it as win in 0:01:37.280 --> 0:01:41.120 sort of eight point type on the government side and 0:01:41.280 --> 0:01:45.280 win in sort of sixteen point type on Google side. 0:01:45.400 --> 0:01:48.560 So here's what I mean. It's not a significant victory 0:01:48.600 --> 0:01:52.080 for the Justice Department. They did win some things, and 0:01:52.400 --> 0:01:56.280 you know, maybe that will help bring some competition into search. 0:01:56.720 --> 0:01:59.960 But I think Google won a lot by not lose 0:02:00.040 --> 0:02:03.760 using very much. They get to keep Chrome. A lot 0:02:03.800 --> 0:02:07.360 of the remedies that the department asked for and got 0:02:07.480 --> 0:02:13.880 even were cut down, circumscribed, diminished. And you know, whether 0:02:14.360 --> 0:02:19.399 what the judge did will end up changing the search business, 0:02:19.840 --> 0:02:23.760 I doubt but who knows. But we've now passed the 0:02:23.880 --> 0:02:27.440 point where the question will be will we get competition? 0:02:27.919 --> 0:02:31.480 And the question will just be is Google complying with 0:02:31.600 --> 0:02:35.520 the decree. Of course, all of that comes after a 0:02:35.639 --> 0:02:39.080 round of appeals, so there's much more to this, But 0:02:39.200 --> 0:02:42.960 in terms of, you know, the overall feeling, I think it's, 0:02:43.040 --> 0:02:46.000 you know, from a public point of view, a disappointment. 0:02:46.639 --> 0:02:50.640 So the big headline was zoeas will Google be forced 0:02:50.639 --> 0:02:53.960 to sell Chrome? So Google doesn't have to do that. 0:02:54.320 --> 0:02:58.920 Why did Judge Meta decide not to make Google divest Chrome. 0:02:59.320 --> 0:02:59.920 So this is a. 0:03:00.080 --> 0:03:05.359 Point that pervades Judge Meta's decision rightly in a legal sense, 0:03:05.520 --> 0:03:09.480 but I think not so correct from a policy point 0:03:09.520 --> 0:03:11.840 of view and really where the law ought to be. 0:03:12.080 --> 0:03:15.440 So this is in many ways a very conservative opinion. 0:03:15.880 --> 0:03:19.839 It's the judge expressing what judges often express is that 0:03:20.639 --> 0:03:25.000 they understand the limits of who they are, what the 0:03:25.040 --> 0:03:27.960 institution can do, and what they want to do on 0:03:28.000 --> 0:03:33.799 an ongoing basis. So they're conservative about this. And here 0:03:34.000 --> 0:03:37.520 the government plaintiffs are asking them to do some pretty 0:03:37.560 --> 0:03:42.480 strong restructuring of one of the superstar firms in the 0:03:42.600 --> 0:03:46.320 United States. So you've got to be a little modest. 0:03:46.800 --> 0:03:47.120 Now. 0:03:47.480 --> 0:03:50.640 The judge backs up his modesty with a lot of 0:03:50.760 --> 0:03:55.360 quotations from the Court of Appeals and recently from the 0:03:55.360 --> 0:03:58.760 Supreme Court in a different anti trust case opinion written 0:03:58.840 --> 0:04:03.640 by Justice Gorsuch, which councils, let's be careful a little bit. 0:04:03.840 --> 0:04:08.440 So the ass that Chrome be divested. Structural relief is 0:04:08.480 --> 0:04:12.520 something that the DC Circuit itself. Remember, Judge Meta is 0:04:12.520 --> 0:04:15.640 a district court judge overseen by a Court of Appeals 0:04:15.680 --> 0:04:19.839 from the DC Circuit, so he is required to follow 0:04:20.400 --> 0:04:24.000 the law from that circuit. The law from that circuit 0:04:24.080 --> 0:04:30.040 on remedies is actually pretty conservative and cautious, and that 0:04:30.320 --> 0:04:34.120 stems from actually the Microsoft case, which is much the 0:04:34.200 --> 0:04:37.680 template for the complaints that the government filed and for 0:04:37.760 --> 0:04:40.960 the government's theories. So you know, they said, well, when 0:04:41.000 --> 0:04:45.520 it comes to structural relief, restructuring reorganizing a company, you 0:04:45.640 --> 0:04:48.440 really need some strong proof before you do that. You 0:04:48.560 --> 0:04:52.600 need to watch out. And so he took those admonitions 0:04:52.640 --> 0:04:58.360 to heart and just didn't find enough to overcome that 0:04:58.600 --> 0:05:01.120 sort of a presumption that you know, you don't do 0:05:01.120 --> 0:05:04.640 this unless you really have to do it for effective relief. 0:05:05.360 --> 0:05:08.360 And this then goes to the second part. Maybe the 0:05:08.400 --> 0:05:12.440 government didn't make an effective enough case for divesting Chrome 0:05:12.680 --> 0:05:16.680 and maybe made it seem too easy, so stuck with 0:05:16.800 --> 0:05:19.360 all of that, he backed away from it. 0:05:19.720 --> 0:05:25.400 How much did AI play into Judgmenta's decision, So I. 0:05:25.320 --> 0:05:29.040 Think his decision is all about AI, frankly, and I 0:05:29.120 --> 0:05:33.320 think that he's betting and many in the industry by 0:05:33.400 --> 0:05:36.760 just simply betting that AI is going to replace Search 0:05:36.839 --> 0:05:40.760 as we know it with something else that's not search 0:05:40.839 --> 0:05:43.120 as we know it, or maybe as you and I 0:05:43.200 --> 0:05:47.880 know it, but just simply getting information and that Google Search, 0:05:48.440 --> 0:05:52.159 that product, no matter what he does in this opinion, 0:05:52.680 --> 0:05:57.920 is going to be eclipsed by some AI product. And 0:05:58.000 --> 0:06:01.200 I think that he've views generates of AI as coming 0:06:01.240 --> 0:06:03.120 to the rescue of competition. 0:06:03.680 --> 0:06:07.680 Some say it's already eroding Google's dominance in search. 0:06:08.200 --> 0:06:10.680 Yeah, the data seemed to show he he mentions this 0:06:10.760 --> 0:06:15.920 in his opinion that searches on Safari have decreased. People 0:06:16.040 --> 0:06:19.400 seem to be going directly to you know, Chat, GPT 0:06:19.680 --> 0:06:24.479 or Perplexity or some of these other AI assistant things 0:06:24.800 --> 0:06:29.520 and just getting information that way. This is the destructive 0:06:29.800 --> 0:06:34.640 force of innovation, as the economist Joseph Schumpeter talked about 0:06:34.680 --> 0:06:38.120 many years ago. So maybe he's right, and you know, 0:06:38.279 --> 0:06:40.760 that may mean that sort of didn't matter what he 0:06:40.839 --> 0:06:44.680 did so long as AI lives. But of course the 0:06:44.960 --> 0:06:49.599 worry is that we'll just replicate the current structure the 0:06:49.680 --> 0:06:54.200 tech platform, superstar firms will just control AI and we 0:06:54.279 --> 0:06:57.719 won't have moved to new competition, but we'll have a 0:06:57.760 --> 0:06:58.600 different product. 0:06:59.160 --> 0:06:59.960 He's ordering Goo. 0:07:00.000 --> 0:07:04.000 Google to share data with rivals to open up competition 0:07:04.640 --> 0:07:07.760 in online search. Google has to share some of the 0:07:07.880 --> 0:07:11.679 data with competitors, but not some of its most important data. 0:07:11.680 --> 0:07:15.160 Would you say, well, here again, it's hard to say 0:07:15.160 --> 0:07:18.480 exactly what our important data. You could say all of 0:07:18.520 --> 0:07:22.160 the data are important, the more the more. But you know, 0:07:22.560 --> 0:07:26.880 this particularly involves the search index, which is something that 0:07:27.200 --> 0:07:31.560 Google has done really well, and the government in some 0:07:31.600 --> 0:07:33.560 ways didn't ask for as much as it could, which 0:07:33.600 --> 0:07:36.000 it would have been a license to the index itself. 0:07:36.440 --> 0:07:39.120 What they wanted is some help with the data so 0:07:39.360 --> 0:07:43.080 competitors could build an index. And even with that, the 0:07:43.280 --> 0:07:46.800 judge cut down the kinds of data that will be 0:07:46.880 --> 0:07:51.840 required to be disclosed, and to me, even more importantly, 0:07:52.440 --> 0:07:56.440 the timing of the disclosure. So for some of these 0:07:56.520 --> 0:07:59.920 data it's a one time snapshot, which strikes me as 0:08:00.360 --> 0:08:04.200 you know, the judge calls that a kickstart for competition. Yeah, 0:08:04.320 --> 0:08:06.240 like a kick in the rear. I don't know, you know, 0:08:06.360 --> 0:08:10.520 a one time thing for some very important parts of 0:08:10.680 --> 0:08:14.080 some basic information to help them put together a better 0:08:14.160 --> 0:08:17.080 index of the web. There's an awful lot of information 0:08:17.200 --> 0:08:20.560 out there and indexing it is critical for an effective 0:08:20.600 --> 0:08:24.160 search engine. And you know, when it comes to sort 0:08:24.200 --> 0:08:28.040 of this user side data to click and query. You know, 0:08:28.200 --> 0:08:32.160 what we do when we get free search is create 0:08:32.440 --> 0:08:35.120 data that's worth a heck of a lot of money 0:08:35.800 --> 0:08:38.839 for which we don't get paid, we being you and 0:08:38.880 --> 0:08:42.760 me and all the other users. But these data here. Again, 0:08:43.160 --> 0:08:46.960 the judge cuts down the request, gives some amount of 0:08:46.960 --> 0:08:51.440 the request, and then sort of puts on some limits 0:08:51.520 --> 0:08:55.720 yet to be decided about how often this will be 0:08:55.920 --> 0:08:59.719 disclosed more than once. Now it's not just a snapshot, 0:09:00.080 --> 0:09:03.800 but the cap yet to be determined by this technical 0:09:03.840 --> 0:09:06.480 committee that the decree is going to set up. So 0:09:07.040 --> 0:09:09.079 I don't know, it's hard for me to say exactly, 0:09:09.480 --> 0:09:12.960 you know, will this enable competitors to really get an 0:09:13.000 --> 0:09:16.959 effective competing search engine or will it not quite be enough? 0:09:17.160 --> 0:09:20.240 And in some ways this goes to what I've always 0:09:20.280 --> 0:09:24.400 viewed as the underlying problem with these decrees is a 0:09:24.520 --> 0:09:29.760 judge trying to say what competitors need to succeed, instead 0:09:29.800 --> 0:09:32.880 of a judge saying, don't ask me, just come back, 0:09:32.960 --> 0:09:35.960 you know, Google, Just come back and let me know 0:09:36.080 --> 0:09:39.079 whether there's competition or not. And if there isn't, we're 0:09:39.120 --> 0:09:41.360 going to have to do something more about it, you know, 0:09:41.679 --> 0:09:45.240 for judges or even the Justice Department which apparently at 0:09:45.320 --> 0:09:47.600 least is still made up of some lawyers. You know, 0:09:47.679 --> 0:09:51.560 trying to design these remedies is tough, and you can 0:09:51.600 --> 0:09:54.360 feel it with what the judge is written in this opinion. 0:09:54.800 --> 0:09:58.120 It's hard and trying to figure out what the effect 0:09:58.200 --> 0:10:00.360 is going to be. He said at the beginning. You know, 0:10:01.120 --> 0:10:04.080 I don't have a crystal ball. Other judges have used 0:10:04.120 --> 0:10:08.000 that worry as well when being asked to predict effects 0:10:08.400 --> 0:10:09.480 in future markets. 0:10:09.760 --> 0:10:13.480 Google has previously said it's going to appeal. Do you 0:10:13.520 --> 0:10:19.120 think Judge Meta's decision is conservative enough to survive at 0:10:19.200 --> 0:10:21.920 least at the DC appellate court stage. 0:10:22.240 --> 0:10:27.040 So he did a lot to try to survive review 0:10:27.120 --> 0:10:30.280 by the Court of Appeals. I mean, he relied quite 0:10:30.320 --> 0:10:35.040 heavily on key decisions, particularly the Microsoft remedy decisions. And 0:10:35.160 --> 0:10:38.880 he also, oh, by the way, bolstered one of the 0:10:38.920 --> 0:10:43.640 potential weaknesses in the liability decision while he was at it. 0:10:43.800 --> 0:10:48.960 So I think it's not perfectly bulletproof the aspect of 0:10:49.120 --> 0:10:54.400 letting AI companies share in some of these data. If 0:10:54.440 --> 0:10:56.800 I were Google, I would be hitting on that whether 0:10:56.880 --> 0:10:59.680 that was you know, not warranted given as he started 0:10:59.679 --> 0:11:02.760 out by saying, there was nothing at the trial about 0:11:02.800 --> 0:11:05.840 AI and there are ways of casting what he did 0:11:05.880 --> 0:11:09.520 as maybe not within the bounds of what the goal 0:11:09.679 --> 0:11:13.680 was in the trial. So there's some potential issue there. 0:11:13.720 --> 0:11:15.839 And you know, I mean it could be more conservative. 0:11:15.880 --> 0:11:19.080 I guess he could have just given Google what Google wanted. 0:11:19.400 --> 0:11:23.400 But it's a carefully drawn opinion, and you know, time 0:11:23.440 --> 0:11:27.280 after time he sort of knocks the government plaintiffs back 0:11:27.880 --> 0:11:30.679 a bit by saying, you know, you've overreached, you're asking 0:11:30.760 --> 0:11:33.480 for too much. You know we need to be modest, etc. Etc. 0:11:33.920 --> 0:11:36.679 And later this month Google is schedule to go on 0:11:36.840 --> 0:11:40.720 trial to determine remedies in another case where a judge 0:11:40.720 --> 0:11:45.960 has found the company holds illegal monopolies in online advertising tech. 0:11:46.080 --> 0:11:48.760 So more to come, Thanks so much, Harry. That's Professor 0:11:48.800 --> 0:11:52.760 Harry First of NYU Law School. Coming up next. Trump 0:11:52.800 --> 0:11:56.520 can't use a wartime act to deport alleged gang members. 0:11:56.800 --> 0:11:59.800 I'm June Grosso. When you're listening to Bloomberg. 0:12:03.240 --> 0:12:07.480 This is Bloomberg Law with June grosseo from Bloomberg Radio. 0:12:08.679 --> 0:12:11.280 Venezuela has been a very bad actor. They've been, as 0:12:11.320 --> 0:12:15.160 you know, they've been sending millions of people into our country. 0:12:15.200 --> 0:12:19.720 Many of them Trend de Aragua, some of the worst gang, 0:12:19.840 --> 0:12:22.160 some of the worst people anywhere in the world. 0:12:22.360 --> 0:12:26.840 President Trump used an eighteenth century wartime law to try 0:12:26.840 --> 0:12:30.760 to quickly deport alleged members of a violent Venezuelan gang 0:12:30.880 --> 0:12:34.679 in March, arguing that the Trend de Aragua gang had 0:12:34.720 --> 0:12:38.360 been sent to the US by Venezuela as president to 0:12:38.520 --> 0:12:42.760 destabilize the country. For the first time, a federal appeals 0:12:42.800 --> 0:12:47.000 court weighed in this week, blocking the administration from using 0:12:47.040 --> 0:12:50.959 the Alien Enemies Act of seventeen ninety eight to deport 0:12:51.000 --> 0:12:54.920 the men. The Fifth Circuit found that quote a country's 0:12:55.160 --> 0:12:59.560 encouraging its residents and citizens to enter this country illegally 0:12:59.800 --> 0:13:03.280 is not the modern day equivalent of sending an armed 0:13:03.480 --> 0:13:07.840 organized force to occupy, to disrupt, or to otherwise harm. 0:13:07.960 --> 0:13:11.640 The United States borders are. Tom Holman had admitted that 0:13:11.720 --> 0:13:16.120 the wartime law was being used for swift deportations that 0:13:16.200 --> 0:13:17.520 avoided due process. 0:13:17.800 --> 0:13:20.520 I'm not arguing right here that nobody should get due process. 0:13:20.559 --> 0:13:22.400 I'm just saying there's a different process on the. 0:13:22.280 --> 0:13:25.080 Alien Enemies Act unless of a process, and you see 0:13:25.080 --> 0:13:25.800 to Title eight. 0:13:26.280 --> 0:13:26.520 DC. 0:13:26.640 --> 0:13:30.640 Appellate Judge Patricia Millett criticized the government for not giving 0:13:30.720 --> 0:13:34.920 the Venezuelans any opportunity to challenge their removals. 0:13:35.440 --> 0:13:39.280 There were planeloads of people, there were no procedures in 0:13:39.400 --> 0:13:44.080 place to notify people. Nazi's got better treatment under the 0:13:44.080 --> 0:13:46.040 Alien Enemy Act and has happened here. 0:13:46.480 --> 0:13:48.880 The two to one decision from the New Orleans Court 0:13:48.960 --> 0:13:52.680 will most likely end up back at the Supreme Court. 0:13:53.080 --> 0:13:56.720 My guest is immigration law expert Leon Fresco, a partner 0:13:56.720 --> 0:13:59.160 at Hollanda Knight le On. This case has been going 0:13:59.200 --> 0:14:01.680 on almost sick so it has been up to the 0:14:01.720 --> 0:14:04.719 Supreme Court twice already catch us up. 0:14:05.040 --> 0:14:08.640 This is a case involving President Trump's proclamation in March 0:14:08.679 --> 0:14:12.040 of twenty twenty five that the Venezuelan gang Trend de 0:14:12.200 --> 0:14:17.600 Arragua was a dangerous invading force into the United States 0:14:17.679 --> 0:14:20.720 such that its members should be deported under the Alien 0:14:20.800 --> 0:14:25.160 Enemies Act, which permits deportation without due process. Essentially, the 0:14:25.200 --> 0:14:28.160 government can just apprehend anyone it says is in the 0:14:28.240 --> 0:14:31.280 Alien Enemies Act group, which in this case is Trend 0:14:31.320 --> 0:14:34.360 the Arragua, and deport them. And people are being deported 0:14:34.400 --> 0:14:37.920 to El Savador, to the Sea Coats Prison. Now There 0:14:38.000 --> 0:14:40.400 was two iterations of this case. The first one started 0:14:40.400 --> 0:14:43.720 in DC where just Bozberg had said that the government 0:14:43.760 --> 0:14:46.600 couldn't do this, and there was the debate about the 0:14:46.640 --> 0:14:49.720 flights and the debate about whether there should be contempt. 0:14:49.880 --> 0:14:53.480 But nevertheless, the Supreme Court comes in and says, no, no, no, 0:14:53.600 --> 0:14:55.560 all of that was wrong. None of that should have 0:14:55.560 --> 0:14:58.480 been filed in DC. These kinds of cases should be 0:14:58.480 --> 0:15:01.360 filed as abias cases. Now. Mind you, there was a 0:15:01.400 --> 0:15:04.200 decision a couple of years ago where just as Alito 0:15:04.360 --> 0:15:08.840 had said no more habeas for immigration. But nevertheless, I 0:15:08.920 --> 0:15:12.360 think that these facts on the ground concerned the Supreme 0:15:12.360 --> 0:15:14.640 Court so much they said, well, you've got to be 0:15:14.720 --> 0:15:17.960 able to file something, so fine, we're back to habeas again. 0:15:18.080 --> 0:15:20.240 So you've got to file them as habeas cases. And 0:15:20.280 --> 0:15:23.080 the habeas cases have to be in the locations where 0:15:23.120 --> 0:15:26.520 people were being detained. Well where were people being detained. 0:15:26.560 --> 0:15:29.160 They were being detained all over Texas. So there were 0:15:29.160 --> 0:15:32.800 district court decisions all over Texas. But now finally the 0:15:32.920 --> 0:15:36.240 main case reaches the Fifth Circuit and the Fifth Circuit 0:15:36.520 --> 0:15:41.640 grants the preliminary injunction preventing the removal of the petitioners 0:15:41.640 --> 0:15:45.200 who were the Venezuelan nationals that the Trump administration wanted 0:15:45.200 --> 0:15:47.800 to deport under the Alien Enemies Act. 0:15:48.160 --> 0:15:52.360 Federal judges in Colorado, New York, and Texas have ruled 0:15:52.360 --> 0:15:56.360 that Trump improperly invoked that act. How did the Fifth 0:15:56.360 --> 0:15:58.360 Circuit come to that same conclusion? 0:15:58.880 --> 0:16:01.560 The Fifth Circuit, in a two to one decision, said 0:16:01.760 --> 0:16:04.320 that at the end of the day, the Alien Enemies 0:16:04.360 --> 0:16:08.440 Act doesn't justify their removals because there isn't a declared 0:16:08.520 --> 0:16:11.720 war and that the actions of this trend that Aragua 0:16:11.800 --> 0:16:16.080 gang do not constitute an invasion or a predatory incursion 0:16:16.400 --> 0:16:19.520 by a foreign nation or a government, which requires, in 0:16:19.560 --> 0:16:23.720 their view, military like actions directed by a foreign power. 0:16:24.000 --> 0:16:26.800 They're saying, this is more of sort of a gang 0:16:26.960 --> 0:16:30.400 or criminal type of thing, but it isn't actually a 0:16:30.840 --> 0:16:35.440 military incursion. They don't even get into anything about whether 0:16:35.520 --> 0:16:39.600 these individuals specifically are members of trend the Aragua or 0:16:39.640 --> 0:16:42.800 anything like that. They just say that this invocation of 0:16:42.840 --> 0:16:46.200 the Alien Enemies Act is unlawful and so it cannot 0:16:46.240 --> 0:16:50.360 be used to create deportation without due process. Now, they 0:16:50.360 --> 0:16:52.880 did say, if the Trump administration wants to deport these people, 0:16:53.200 --> 0:16:56.440 they can deport them under any other grounds that's permissible. 0:16:56.680 --> 0:16:59.920 The borders are Tom Holman and others in the administration 0:17:00.120 --> 0:17:03.880 and kept saying that the Venezuelans were terrorists. Was that 0:17:04.000 --> 0:17:05.359 part of their legal argument? 0:17:05.680 --> 0:17:08.800 Well, first of all, you're correct. There's a very concerted effort, 0:17:08.880 --> 0:17:11.520 even in this bombing that occurred this week with the 0:17:11.600 --> 0:17:15.280 Venezuelan drug lords on the boat, that everybody calling them 0:17:15.280 --> 0:17:20.199 in the administration terrorists, to try to link that with 0:17:20.800 --> 0:17:25.680 some sort of military like action directed by a foreign power, 0:17:26.000 --> 0:17:28.280 to get it as close as possible to the Alien 0:17:28.400 --> 0:17:31.879 Enemies Act. But what this court is saying is that's 0:17:31.960 --> 0:17:34.720 not really what these people are. These people are not 0:17:35.280 --> 0:17:38.600 being instructed by the Venezuelan government to come to the 0:17:38.720 --> 0:17:42.960 United States and commit war acts against the United States. 0:17:43.040 --> 0:17:46.359 These are just individual criminals trying to profit off of 0:17:46.480 --> 0:17:50.879 drug and gang activities. They're not soldiers or quasi soldiers 0:17:50.920 --> 0:17:53.560 acting on behalf of the Venezuelan government. 0:17:53.800 --> 0:17:56.840 This is a Fifth Circuit decision, the most conservative appellate 0:17:56.880 --> 0:18:01.200 court in the country, George W. Bush appointing Biden appointee 0:18:01.200 --> 0:18:05.080 in the majority and in descent a Trump appointee. What 0:18:05.320 --> 0:18:08.240 did the dissent argue. 0:18:07.920 --> 0:18:11.280 Well, the dissenting judge who used to be the Solicitor 0:18:11.359 --> 0:18:13.840 General of the State of Texas, a very well known, 0:18:13.960 --> 0:18:18.760 strong conservative judge, Judge Oldham. He basically argued that the 0:18:18.800 --> 0:18:23.119 Alien Enemies Act is something that is so broad in 0:18:23.240 --> 0:18:27.080 terms of the congressional authority that the courts really don't 0:18:27.119 --> 0:18:32.560 have a role in reviewing a presidential determination under the 0:18:32.600 --> 0:18:35.760 Alien Enemies Act. Basically, what he was saying is that 0:18:35.840 --> 0:18:39.280 the courts should not second guess when the president says 0:18:39.400 --> 0:18:44.280 there's a war, because this can lead to very dangerous circumstances, 0:18:44.320 --> 0:18:46.640 and that you know, you have the president who has 0:18:46.680 --> 0:18:48.959 all of this sort of expertise in the sense that 0:18:49.000 --> 0:18:52.879 they have the Defense Department and the CIA and the 0:18:52.880 --> 0:18:56.800 Department of Homeland Security and the NSA to do all 0:18:56.840 --> 0:19:01.520 of this work and consultation, and they make a determination 0:19:01.720 --> 0:19:06.200 that there is a dangerous environment akin to the environment 0:19:06.240 --> 0:19:09.480 that's required under the Alien Enemies Act. For the courts 0:19:09.520 --> 0:19:12.520 who are just judges sitting there in you know, Louisiana 0:19:12.840 --> 0:19:16.040 or Texas or wherever they're sitting that don't have all 0:19:16.080 --> 0:19:18.720 of this access to be able to come in and say, well, 0:19:18.720 --> 0:19:21.600 we don't actually think this rises to the kind of 0:19:22.040 --> 0:19:26.680 war level threat that is required under the Alien Enemies Act. 0:19:26.760 --> 0:19:29.919 Keeps saying that is incredibly dangerous because what is the 0:19:29.960 --> 0:19:33.359 limiting principle there? Now the judges can decide what is 0:19:33.400 --> 0:19:36.439 a war, what is in a war, and that's not 0:19:36.640 --> 0:19:41.199 what Congress had intended here. The problem with that is, 0:19:41.600 --> 0:19:43.320 at the end of the day, if you really have 0:19:43.560 --> 0:19:47.480 no limiting principle on the Alien Enemies Act at all, 0:19:47.920 --> 0:19:50.960 including whether it can be invoked and who it can 0:19:51.000 --> 0:19:54.120 be invoked again, then at that point, I mean, there 0:19:54.160 --> 0:19:56.439 really would be no way for either you or I 0:19:56.640 --> 0:19:59.239 or any of your listeners to go into court if 0:19:59.280 --> 0:20:02.560 we were mistaken Lee apprehended by Ice. Ice could say, 0:20:02.920 --> 0:20:05.520 you know, Leon or June, you're members of this trend, 0:20:05.520 --> 0:20:08.320 that Ragua gang, and we're sending you te El Salvador. 0:20:08.400 --> 0:20:10.960 And you could say, yeah, but I've never visited Venezuela, 0:20:11.000 --> 0:20:13.520 and I don't even know any Venezuelans and I'm not 0:20:13.600 --> 0:20:15.840 a member of a gang. I toast the bloomberg. So 0:20:16.359 --> 0:20:18.960 and it won't matter because there's no court to bring 0:20:19.040 --> 0:20:22.439 it to. And so I don't think anyone will be 0:20:23.119 --> 0:20:27.080 fully comfortable with that kind of decision. And I don't 0:20:27.080 --> 0:20:29.520 think the Supreme Court was comfortable with that, which is 0:20:29.520 --> 0:20:34.359 why they didn't issue that decision. And moving forward, I 0:20:34.400 --> 0:20:37.320 don't think they're gonna get there in terms of to 0:20:37.440 --> 0:20:41.520 just not have any due process determination as to these decisions. 0:20:41.800 --> 0:20:45.280 Yeah, Colorado judge called that argument nonsense. 0:20:45.600 --> 0:20:48.199 It's a difficult argument to make. I mean, look, it 0:20:48.240 --> 0:20:52.280 all depends where you're approaching this from. If you're approaching 0:20:52.320 --> 0:20:56.800 this from a belief system that everybody in the world 0:20:56.920 --> 0:21:00.880 acts in good faith, then you could conceivably understand you'd say, well, 0:21:00.880 --> 0:21:03.639 why would a president ever want to do something like 0:21:03.680 --> 0:21:08.600 this put someone in a detention if it wasn't absolutely necessary. 0:21:09.080 --> 0:21:11.600 But if you were to approach it from the perspective 0:21:11.640 --> 0:21:14.280 that sometimes people don't act in good faith or sometimes 0:21:14.320 --> 0:21:17.359 people make a mistake, then maybe you do need some 0:21:17.480 --> 0:21:20.760 due process in that system, because otherwise, what is checking 0:21:21.080 --> 0:21:23.240 those kinds of abuses from occurring. 0:21:23.600 --> 0:21:26.320 The ruling could be appealed to the full Fifth Circuit 0:21:26.800 --> 0:21:30.119 or could be appealed directly to the Supreme Court. Is 0:21:30.119 --> 0:21:33.560 there any reason to bother going for and on bank 0:21:33.680 --> 0:21:36.359 hearing at the Fifth Circuit when the case is just 0:21:36.440 --> 0:21:38.560 going to end up at the Supreme Court. 0:21:38.920 --> 0:21:41.520 Anyway, you know, right now, the government doesn't have the 0:21:41.560 --> 0:21:44.760 strongest hand, and maybe you know, the government wins in 0:21:44.800 --> 0:21:48.280 the Fifth Circuit fully, and so then it would be 0:21:48.320 --> 0:21:51.960 the onus then on the foreign nationals to actually then 0:21:51.960 --> 0:21:55.679 appeal to the Supreme Court. So from that perspective, they 0:21:55.680 --> 0:21:58.879 may want to strengthen their hand. But honestly, if the 0:21:59.400 --> 0:22:03.119 trumpet is trying to really say, hey, these are the 0:22:03.119 --> 0:22:05.800 most dangerous people in the world and we need to 0:22:05.800 --> 0:22:08.880 get them out as soon as possible, asking for Unbank 0:22:08.960 --> 0:22:10.960 review of the Fifth Circuit doesn't seem to make a 0:22:10.960 --> 0:22:13.639 lot of sense, because why are you delaying getting to 0:22:13.720 --> 0:22:17.080 the ultimate outcome here. So I don't think from a 0:22:17.200 --> 0:22:20.280 political perspective it makes a lot of sense to go 0:22:20.440 --> 0:22:24.440 for Unbank review. It may make sense strengthening the argument 0:22:24.480 --> 0:22:27.359 in a typical case because you might win in the 0:22:27.760 --> 0:22:29.639 en Bank. But at the end of the day, if 0:22:29.640 --> 0:22:31.119 what you're trying to say is, look, we need to 0:22:31.160 --> 0:22:33.359 final answer, we need to get these theorists out of 0:22:33.359 --> 0:22:35.840 the country as soon as possible, I think you would 0:22:35.920 --> 0:22:38.240 want the Supreme Court to look at this as soon 0:22:38.280 --> 0:22:38.920 as possible. 0:22:39.320 --> 0:22:42.840 So the Supreme Court never answered the question of whether 0:22:43.280 --> 0:22:47.800 Trump's use of the Alien Enemies Act is valid. Do 0:22:47.880 --> 0:22:51.600 you have any inkling from the way they ruled twice before. 0:22:51.840 --> 0:22:53.840 Well, I think that at the end of the day, 0:22:53.920 --> 0:22:58.040 there won't be five justices that say that you can't 0:22:58.080 --> 0:23:02.679 review this general concept of whether it was proper to 0:23:02.800 --> 0:23:06.920 have an Alien Enemies Act determination. Now, they may give 0:23:07.000 --> 0:23:10.199 some very strong difference to the administration. In fact, I 0:23:10.200 --> 0:23:13.240 would be shocked if they didn't give strong difference to 0:23:13.320 --> 0:23:16.360 the administration. But they may say, look, even with very 0:23:16.400 --> 0:23:19.480 strong difference, this isn't the kind of case that gets it. 0:23:19.560 --> 0:23:22.359 I mean that issue is going to be closed. I 0:23:22.359 --> 0:23:25.280 don't think there will be any justice that says that 0:23:25.320 --> 0:23:28.960 an individual person can't come forward and make a claim 0:23:29.200 --> 0:23:31.320 that look, you may claim there's a problem, but I'm 0:23:31.320 --> 0:23:34.520 not a member of the problem group. I think those 0:23:34.640 --> 0:23:38.560 people will nine nothing be able to get due process, 0:23:38.680 --> 0:23:41.560 in habeas or in some other way to be able 0:23:41.600 --> 0:23:44.239 to make that argument. That's the second thing. And then 0:23:44.280 --> 0:23:47.560 the third thing. The court said that seven days is 0:23:47.680 --> 0:23:50.360 enough to make these claims, so that the government, if 0:23:50.359 --> 0:23:53.439 they designate you as part of the problem group, you 0:23:53.560 --> 0:23:55.880 have seven days to file a lawsuit or you can 0:23:55.920 --> 0:24:00.399 be deported and the dissenting judged there, Judge Ramirez said, no, 0:24:00.520 --> 0:24:02.879 you need twenty one days at least. And you know 0:24:03.000 --> 0:24:05.320 this is everybody just making this up out of old clause. 0:24:05.640 --> 0:24:07.800 But the question is, you know, if you don't speak English, 0:24:07.840 --> 0:24:09.800