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

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Speaker 2: The Supreme Court has refused to allow President Trump to

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Speaker 2: immediately oust Federal Reserve Governor Lisa Cook over mortgage fraud

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Speaker 2: allegations she's denied. The order issued today with no dissents

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Speaker 2: means Cook can remain in her position at least until

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Speaker 2: the justice is rule and oral arguments in the case

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Speaker 2: aren't even scheduled until January. The Supreme Court has largely

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Speaker 2: sided with Trump this year in cases challenging his firings

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Speaker 2: of officials at different federal agencies, so today's order was rare.

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Speaker 2: Joining me is elliot Stein, Bloomberg Intelligence senior litigation analyst

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Speaker 2: Elliott Is this a big win for Cook?

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Speaker 1: I would say it's a interim win for her because

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Speaker 1: it does allow her to stay in her position as

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Speaker 1: a Federal Reserve Board governor while the case continues to

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Speaker 1: proceed in the Supreme Court. But the Supreme Court didn't

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Speaker 1: really weigh in further than that, and it said that

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Speaker 1: it has deferred any ruin for now until after it

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Speaker 1: can hear oral argument in January of twenty twenty six,

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Speaker 1: so he will be serving in her current role until then,

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Speaker 1: at a minimum, and then we'll wait to see what

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Speaker 1: the justices say.

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Speaker 2: Beyond that, the Supreme Court has basically sided with Trump

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Speaker 2: this year in cases challenging his firing of officials at

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Speaker 2: different federal agencies, for example, the firing of the FTC commissioner,

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Speaker 2: the firing of the NLRB board member, and the firing

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Speaker 2: of the Merit Systems Protection Board member, and the Court

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Speaker 2: has allowed the removal of those officials as the litigation

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Speaker 2: plays out. So does this say the Supreme Court sees

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Speaker 2: the FED differently.

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Speaker 1: Yeah, absolutely, that's exactly right. We've seen so many cases,

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Speaker 1: including the ones that you mentioned, brought by commissioners of

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Speaker 1: other agencies a President Trump fired, they sued. Those cases

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Speaker 1: mostly went in the commissioner's favors in the lower courts,

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Speaker 1: and then when it got to the Supreme Court, the justices,

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Speaker 1: usually on either an administrative basis or on an emergency

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Speaker 1: stay application, essentially overruled the lower courts and allowed the

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Speaker 1: terminations to take place and take effect while the litigation

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Speaker 1: played out. This is very notable because at least the

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Speaker 1: cookcase really is different in that respect. First, you know,

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Speaker 1: Justice Roberts did not issue an administrative stay like you

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Speaker 1: did just a couple of weeks ago in the FTC

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Speaker 1: case involving Rebecca Slaughter, and then he referred it to

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Speaker 1: all the justices, and the conservative majority on the Supreme

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Speaker 1: Court didn't rule in President Trump's favor like they did

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Speaker 1: in some of the other cases, like the NLRB case

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Speaker 1: to Wilcox's case, in the Foil case, which was another

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Speaker 1: similar case. I think what's really notable about the Lisa

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Speaker 1: Cook CAAs is that the Supreme Court really is viewing

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Speaker 1: the Federal Reserve differently than it is other agencies. And

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Speaker 1: we already knew that from the Wilcox decision in May,

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Speaker 1: where the Supreme Court said that the Federal Reserve is unique,

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Speaker 1: it has a unique structure, it has a unique history,

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Speaker 1: it's really quasi private according to the justices, and therefore

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Speaker 1: it's not like these other independent agencies, which the conservative

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Speaker 1: justices seem to view as more clearly falling under the

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Speaker 1: executive branch.

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Speaker 2: And there was no dissent. So now the Court is

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Speaker 2: going to hear arguments in the case challenging Trump's firing

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Speaker 2: of FTC Commission Member Rebecca Slaughter. As you mentioned, that's

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Speaker 2: in early December. Right, does the schedule for the cookcase

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Speaker 2: suggest that the Justices want to look at the FTC

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Speaker 2: case before turning to the FED.

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Speaker 1: Yeah, I think that's a fair reading. I mean, I

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Speaker 1: think the issues are little distinct, right, I think the

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Speaker 1: FTC case really is going to concern whether four cause

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Speaker 1: removal restrictions are constitutional or not, and whether the Humphreys

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Speaker 1: Executor Supreme Court case from nineteen thirty five, which established

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Speaker 1: that they are constitutional, should be overruled or not. That's

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Speaker 1: really what's that issue in that case. This case, at least,

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Speaker 1: the Cook case almost presumes that the four cause removal

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Speaker 1: restriction is constitutional, and the issue is what does cause mean?

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Speaker 1: What does it require? And you know, should there be noticed,

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Speaker 1: an opportunity to be heard, and who should even make

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Speaker 1: that determination as to whether the four cause standard has

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Speaker 1: been met?

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Speaker 2: And the Trump administration here, the Solicitor General said that

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Speaker 2: Trump had reason to fire Cook for cause. He also

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Speaker 2: said the courts don't have the discription to review the

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Speaker 2: president's determination.

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Speaker 1: Right. That's the government's argument that a the fore cost

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Speaker 1: standard is very broad. All requires is something beyond a

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Speaker 1: policy disagreement, and that it's really up to the president

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Speaker 1: to determine whether that standard has been met. You know,

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Speaker 1: at least the Cook obviously takes a different view and says, well,

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Speaker 1: if it's only up to the president to determine whether

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Speaker 1: the forecast standard has been met, that essentially renders the

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Speaker 1: standard meaningless because you've turned it almost into an at

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Speaker 1: will standard, which should not be your standard at all.

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Speaker 2: For those few people who may not have heard about

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Speaker 2: these mortgage investigations, Trump is accused Cook of mortgage fraud,

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Speaker 2: which she denies. She has not been charged with a

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Speaker 2: crime yet, and Bloomberg News has previously reported that loan

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Speaker 2: documents for Cook's Georgia home appear to contradict the claims

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Speaker 2: made by the FAHFA share build. So this is at

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Speaker 2: a very early stage. How did the federal judge who

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Speaker 2: reviewed this look at it?

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Speaker 1: I think you're exactly right. This is all at a

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Speaker 1: very early stage, and so they're really trying to determine

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Speaker 1: what the law even requires before they get into the

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Speaker 1: facts of the case. The trial court judge essentially held

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Speaker 1: that four cause can't solely be based on something that

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Speaker 1: happened before the person was appointed to her current role.

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Speaker 1: If it is something that happened before she was appointed,

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Speaker 1: it has to at least tie into her ability to

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Speaker 1: serve in that role, and that hasn't happened here, according

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Speaker 1: to the Childcourt judge, and the trial court judge also

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Speaker 1: said that there has to be some sort of due

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Speaker 1: process according to the Constitution, and that that wasn't satisfied

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Speaker 1: here either. The Appeals Court ruled solely on the due

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Speaker 1: process argument and didn't even get to what four cause requires.

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Speaker 1: And so, you know, the Supreme Court, we don't know

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Speaker 1: exactly how far they're going to go. We don't know

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Speaker 1: if they're going to rule on both those issues. I'm

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Speaker 1: sure they're going to explore both those issues, but they may,

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Speaker 1: like the Appeals Court wind not rulin, just on you know,

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Speaker 1: whether due process is required, and they may say, you know,

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Speaker 1: if they agree with the Appeals Court, they may say

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Speaker 1: due process was not satisfied here, and you know, they'll

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Speaker 1: send it back to the lower courts, or they'll articulate

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Speaker 1: what due process actually does require and then send it

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Speaker 1: back to the lower courts to determine whether that standard

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Speaker 1: was met here or not. So it is early, as

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Speaker 1: you say, After the Supreme Court rules, most likely it

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Speaker 1: will go back down to the lower courts.

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Speaker 2: And did the Trump administration claim that there was notice

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Speaker 2: to Cook because of social media posts of the president.

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Speaker 1: Yeah. Their initial argument is that you notice, an opportunity

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Speaker 1: to be heard isn't even required here because there's no

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Speaker 1: property interest in a public interest role like the Federal

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Speaker 1: Reserve Board governor seat. But their argument after that is, okay, well,

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Speaker 1: if notice is required, it was satisfied here because President

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Speaker 1: Trump's social media posts gave her ample notice, and she

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Speaker 1: had ample notice to respond to those posts. And she

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Speaker 1: hasn't really substantively articulated why the allegations are wrong. But

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Speaker 1: you know, I think her approach is a sensible one

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Speaker 1: in the sense that you know, she's saying, look, the

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Speaker 1: law requires more than that at a minimum, And so

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Speaker 1: let's argue about what the law requires before we even

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Speaker 1: get into the factor.

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Speaker 2: And in this case, you had a group of former

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Speaker 2: Fed and Treasury officials who served under Republican and Democratic

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Speaker 2: administrations writing a Friend of the Court brief that urged

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Speaker 2: the justices to leave Cook in place.

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Speaker 1: Right, These are amicus briefs, like you said, from former

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Speaker 1: Federal Reserve Board governors appointed by presidents of both parties,

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Speaker 1: as well as Treasury Secretary is appointed by presidents of

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Speaker 1: both parties, arguing why Federal Reserve independence is so important,

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Speaker 1: and they just point to a more stable monetary policy

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Speaker 1: in countries where you do have Federal Reserve Board independence.

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Speaker 1: This again goes to the point which I think the

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Speaker 1: Supreme Court already picked up on previously in their Wilcox

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Speaker 1: decision in May as why the Federal Reserve is different

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Speaker 1: from other independent agencies that more clearly fall under the executive.

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Speaker 2: France and Elliott, you are giving Kook a sixty chance

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Speaker 2: to prevail at.

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Speaker 1: The court exactly. I think she's a slight favorite based

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Speaker 1: on what we've seen the Supreme Court do in the

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Speaker 1: Wilcox decision and what we sort of have seen it

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Speaker 1: do more recently in Justice Roberts not issuing an administrative

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Speaker 1: stay and again in all the Justices not doing what

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Speaker 1: they did in these other cases where they allowed the

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Speaker 1: termination is to take effect while the case plays out.

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Speaker 1: But it is a close case, a out of unsettled

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Speaker 1: issues like the ones we've talked about. What is caused?

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Speaker 1: What does they require? Is there a do process requirement?

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Speaker 1: What kind of notice is required? And who should make

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Speaker 1: that determination.

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Speaker 2: It's a high stakes case and the oral arguments should

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Speaker 2: be interesting. Thanks so much, Elliott. That's Bloomberg Intelligence senior

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Speaker 2: litigation analyst Elliott Stein coming up next on the Bloomberg

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Speaker 2: Law Show. President Trump has already sent troops into Los

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Speaker 2: Angeles and Chicago over the objections of the governors of

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Speaker 2: California and Illinois. Oregon isn't waiting for the deployment of troops.

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Speaker 2: It's already suing Trump over what it says is an

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Speaker 2: unlawful federalization of the National Guard. I'm June Grosso. When

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Speaker 2: you're listening to Bloomberg.

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Speaker 3: There is no insurrection, there is no threat to national security,

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Speaker 3: and there is no need for military troops in our

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Speaker 3: major city.

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Speaker 2: The next city to see the national art on its

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Speaker 2: streets will be Portland, Oregon. In a post on truth

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Speaker 2: Social on Saturday, President Trump said he was authorizing troops

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Speaker 2: to quote protect war ravaged Portland and any of our

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Speaker 2: ice facilities under siege from attack by Antifa and other

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Speaker 2: domestic terrorists. But the state isn't waiting for the deployment

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Speaker 2: to push back, It's already suing Trump over what it

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Speaker 2: says is an unlawful federalization of the National Guard. Here's

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Speaker 2: Governor Tina Kotek.

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Speaker 3: Any deployment would be an abuse of power and a

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Speaker 3: misuse of federal troops.

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Speaker 2: My guest is Leon Fresco, a partner at Holland and

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Speaker 2: Knight and the former head of the Office of Immigration

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Speaker 2: Litigation in the Obama administration. Leon, is this similar to

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Speaker 2: what happened in Los Angeles and Chicago where Trump deployed

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Speaker 2: troops over the objection of those cities mayors and the

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Speaker 2: state's governors.

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Speaker 4: Well, it's similar in one respect, and it's different in

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Speaker 4: another respect. The Los Angeles operations first started off as

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Speaker 4: much broader National Guard operations basically trying to keep the

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Speaker 4: peace in Los Angeles due to conflagrations that had happened

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Speaker 4: as a result of ice enforcement that various home depot

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Speaker 4: and other type of locations. Whereas here in Portland there

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Speaker 4: is that type of rhetoric, but at least the discussion

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Speaker 4: of it is basically only about sending two hundred Oregon

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Speaker 4: National Guard troops to protect federal facilities, and so the

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Speaker 4: federal facility protection part was actually viewed as lawful in

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Speaker 4: Los Angeles when that occurred. What was not viewed as

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Speaker 4: lawful by the federal courts, there was the larger protection

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Speaker 4: that didn't involve the protection of federal facilities. And so

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Speaker 4: even though there's not a lawsuits that's been filed by

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Speaker 4: the Oregon Attorney General to block the federalization of the

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Speaker 4: National Guard, at the end of the day, the ICE facilities,

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Speaker 4: at least according to the Los Angeles order, appear to

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Speaker 4: be something that the National Guard can be deployed to

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Speaker 4: protect because it is a federal facility. But we'll wait

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Speaker 4: and see where this goes because there's other issues of play. Also.

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Speaker 4: The City of Portland is claiming that ICE violated its

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Speaker 4: land use agreement with the City of Portland by detaining

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Speaker 4: individuals for much longer than they were supposed to be detained,

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Speaker 4: and other issues with regard to how far these protests

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Speaker 4: are being blocked by the National Guard agents. Are they

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Speaker 4: just protecting the facilities or are they going further out

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Speaker 4: than that, And so all of those things will need

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Speaker 4: to be resolved in a federal court proceeding later this week.

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Speaker 4: The preliminary injunction hearing is supposed to be determined later

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Speaker 4: this week, but for now, we're going to basically see

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Speaker 4: can the Guard be deployed at all. Most likely will

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Speaker 4: be yes, to protect the federal facility, but then there

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Speaker 4: will be questions about, again, is Ice violating the terms

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Speaker 4: of its land use agreement with Oregon? And are these

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Speaker 4: federal troops doing more than just protecting the federal facility?

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Speaker 2: So do you think that Oregon officials jump the gun

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Speaker 2: by filing a lawsuit now instead of waiting to see

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Speaker 2: how the troops are deployed, whether they just guard the

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Speaker 2: ICE facilities or whether they engage in policing.

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Speaker 4: Correct, you would normally want to build a better record

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Speaker 4: in a situation like this, But I do think that

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Speaker 4: at this stage of things, there's a lot of politics involved,

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Speaker 4: and so people just want to get these lawsuits in

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Speaker 4: and then they'll sort of let the facts come as

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Speaker 4: as they may, which is not normally how you would

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Speaker 4: do a lawsuit. But in these days where everything is politics,

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Speaker 4: you know, there's all of these questions. Was the National

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Speaker 4: Guard mobilization motivated by politics? Was the lawsuit motivated by politics?

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Speaker 4: And so there's politics on all sides here, and we'll

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Speaker 4: just have to wait and see what the court, who

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Speaker 4: is not supposed to be a political actor, does about

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Speaker 4: all of these various claims. That are being made. And

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Speaker 4: also one further complicating fact generally is that in civil

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Speaker 4: litigation right now, in cases involving the government, unless there's

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Speaker 4: some threat to life or liberty, those are being continued

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Speaker 4: right now because of the government shutdown, and so unclear

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Speaker 4: if these hearings will go forward if there is a

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Speaker 4: shutdown that continues for some period of time.

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Speaker 5: To have Illinois or Chicago sued over the deployment, they

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Speaker 5: sued with regard to the way that ICE is enforcing,

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Speaker 5: both at the immigration courts and with regard to grant funding,

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Speaker 5: but not with regard to the National Guard.

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Speaker 2: So many lawsuits, very difficult to keep drag of them,

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Speaker 2: but you do.

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Speaker 4: Yes.

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Speaker 2: So now you had a judge, a Reagan appointed judge

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Speaker 2: with forty years experience on the bench, right a blistering

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Speaker 2: decision finding that the Trump administration unconstitutionally targeted non citizens

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Speaker 2: over their speech about the guys of war. Tell us

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Speaker 2: what Judge William Young in Boston, what he found.

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Speaker 4: Sure, So the case is called the American Association of

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Speaker 4: University Professors versus Rubio, and it's a question about the

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Speaker 4: policies that the administration was putting in place with regard

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Speaker 4: to saying basically, if you support hamas in your rhetoric

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Speaker 4: on social media, et cetera, that you would, for foreign

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Speaker 4: policy violation reasons, be deportable from the United States if

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Speaker 4: you were not a citizen. And so the people who

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Speaker 4: sued in that case saying this was ideological deportation that

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Speaker 4: violated the First Amendment. So that was their claim, and

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Speaker 4: the Trump administration was saying that the deportation was not

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Speaker 4: based on political speech or pro Palestinian views, but really

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Speaker 4: at the end of the day, was based on support

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Speaker 4: for terrorist organizations aka AMAS and national security concerns, meaning

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Speaker 4: that if people were sort of riling up tensions in

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Speaker 4: the United States, who are foreign nationals, so they're not

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Speaker 4: US citizens, they're foreign nationals engaging in dialogue that's meant

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Speaker 4: to rile up tensions, Why is that in the national

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Speaker 4: interests of the United States better that you know, people

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Speaker 4: like that not be here so that they're less quote

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Speaker 4: unquote tension being riled up. And so this is the

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Speaker 4: sort of the debate, and the issue is who wins

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Speaker 4: in this situation? Does the First Amendment win? You know,

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Speaker 4: as long as you're not doing any actual violence, you're

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Speaker 4: just advocating on behalf of the Palestinians. And let's say,

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Speaker 4: even if it's a pro Palestinian solution to the conflict,

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Speaker 4: is that protected or can the administration, based on the

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Speaker 4: broad authority given to it by the Congressional Statute, say, look,

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Speaker 4: the statute say when the Secretary of State finds any

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Speaker 4: conduct bad for the foreign policy interests of the United States,

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Speaker 4: the Secretary of State can order a deportation. So who

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Speaker 4: wins in that fight? And what the Court said was

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Speaker 4: that this was the First Amendment, plain and simple discrimination.

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Speaker 4: It was designed to intentionally chill protected speech, to create

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Speaker 4: the environment of fear regarding pro Palestinian views, so that

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Speaker 4: people wouldn't voice the opinions because they knew they could

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Speaker 4: get deported if they voice these opinions. And so if

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Speaker 4: the Court said that that was unacceptable and that what

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Speaker 4: needed to happen moving forward is because it would violate

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Speaker 4: not just the First Amendment but the Administrative Procedure Act,

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Speaker 4: is that there needed to be clear guidelines on whatever

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Speaker 4: is it isn't acceptable that that would be what could

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Speaker 4: they be potentially be implemented in a future case. And

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Speaker 4: of course those clear guidelines could be challenged. But this

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Speaker 4: idea that the Secretary of State could just without any warning,

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Speaker 4: find speech not acceptable and revoke your visa without any

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Speaker 4: clear guidance he viewed as unacceptable and violatives of the

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Speaker 4: First Amendment. And then there was a lot of, of course,

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Speaker 4: very high minded rhetoric about the First Amendment and democracy

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Speaker 4: and then protection of rights, etc. But at the end,

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Speaker 4: this is the basic framing of the opinion. And so now,

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Speaker 4: of course it will go up to the First Circuit

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Speaker 4: and then the Supreme Court to try to figure out

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Speaker 4: what's actually going to win in this battle between the

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Speaker 4: First Amendment and the rights of people to speak in

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Speaker 4: America about views, whether their views that are popular or

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Speaker 4: not popular, as long as they're not actually doing anything

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Speaker 4: else other than just speech versus the Secretary of States

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Speaker 4: rights under the Congressional laws to if you read the

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Speaker 4: text of those statutes, pretty much order anyone deported that

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Speaker 4: he thinks he should for the purposes of protecting US

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Speaker 4: foreign policy.

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Speaker 2: Yeah, so, how much of a setback is it for

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Speaker 2: the administration to exclaim that the Secretary of State has

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Speaker 2: the authority to revoke visas and green cards under this

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Speaker 2: rarely used provision.

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Speaker 4: It will be a major major problem if the higher

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Speaker 4: level courts say that that statute has written is too

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Speaker 4: vague to be constitutional, or that the way it's being

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Speaker 4: applied is nevertheless too vague. Meaning perhaps if you put

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Speaker 4: some policies with regard to a specific form of conduct,

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Speaker 4: then maybe you can apply it, but just without warning,

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Speaker 4: sort of having this catch all. The U don't know

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Speaker 4: if you're going to get caught in the catch all.

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Speaker 4: That might be too vague. So I think this has

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Speaker 4: the potential to be a dramatic setback for the Trump

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Speaker 4: administration and the Secretary of State. But we'll need to

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Speaker 4: see some higher courts doing this at the end of

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Speaker 4: the day, because just the district court decision alone isn't

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Speaker 4: going to ultimately change the outcome of these cases. So

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Speaker 4: once these cases get appealed and get to the Supreme Court,

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Speaker 4: that's where we're going to wait and see. But if

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Speaker 4: this ruling is maintained, it would be a dramatic alteration

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Speaker 4: to the policy that the Trump administration was trying to

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Speaker 4: put in place, which was to say, if you're not

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Speaker 4: careful with you know, the things you're saying in the

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Speaker 4: United States while you're here, and you're not a citizen,

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Speaker 4: you could subject yourself to deportation. So better to just

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Speaker 4: be here and be like a polite guest in someone's

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Speaker 4: home where you don't say anything about about anything controversial.

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Speaker 4: When you're visiting someone's home, you just kind of have

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Speaker 4: your cake and your wine and then you go.

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Speaker 5: Take it whine.

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Speaker 4: I like that combination, Yes, exactly. You just say, how's

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Speaker 4: the weather outside, it's any degrees, it's lovely, that kind

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Speaker 4: of thing, And that's pretty much the sense of what

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Speaker 4: you should be doing here if you're not a US citizen.

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Speaker 2: And in this one hundred and sixty one page scathing ruling,

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Speaker 2: the judge directly and sharply criticized President Trump and his

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Speaker 2: immigration policies, saying they were intended to strike fear into

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Speaker 2: non citizens and chill freedom of speech.

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Speaker 4: Look, the judge was very unhappy with the Trump administration.

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Speaker 4: The judge was very unhappy with the arguments that were

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Speaker 4: being made about non citizens not having the same First

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Speaker 4: Amendment rights as US citizens, which, by the way, is

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Speaker 4: a undecided issue in federal law. I would not say

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Speaker 4: that that's a decided issue, And in fact, the last

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Speaker 4: real decision on that, which was a nineteen fifty two

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Speaker 4: case called Heresiatis versus Shaughnessy, which had to do with

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Speaker 4: membership in the Communist Party, went against the First Amendment

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Speaker 4: rights of foreign nationals. And so from the standpoint of

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Speaker 4: thinking that it's a slam dunk that foreign nationals have

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Speaker 4: the same First Amendment rights as US citizens, that's not

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Speaker 4: exactly true, and we'll need to see how the court

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Speaker 4: deals with it. But nevertheless, this judge just thought that

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Speaker 4: this was being implemented in a way that was just

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Speaker 4: unconscionable to the court. And so the Court definitely, in

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Speaker 4: those one hundred and sixty pages, decided to express itself

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Speaker 4: and its frustration very openly and was putting, you know,

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Speaker 4: notes in that the Court had received in the past

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Speaker 4: and writing notes back to people. It was very personal, obviously,

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Speaker 4: decision for this judge, and so we'll wait to see

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Speaker 4: if the appellate courts think that makes it more or

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Speaker 4: less persuasive moving forward.

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Speaker 2: And I've never seen anything quite like this in a

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Speaker 2: judge's opinion. At the start of the judge's opinion, before

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Speaker 2: the title of the case, it began with words taken

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Speaker 2: from an anonymous postcard threatening the judge that had been

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Speaker 2: sent to him in June, and it was a duplication

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Speaker 2: of the note in this block printing quote Trump has

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Speaker 2: pardons and tanks, what do you have? And then the

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Speaker 2: judge typed his response beneath it, dear mister or miss

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Speaker 2: anonymous alone, I have nothing but my sense of duty.

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Speaker 2: Together we the people of the United States, you and

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Speaker 2: me have our magnificent Constitution. Here's how that works out

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Speaker 2: in a specific case. And then the opinion followed. Does

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Speaker 2: that change the way in a pellet court will assess

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Speaker 2: this decision?

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Speaker 4: I think the problem is this, all of the federal

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Speaker 4: judges grow up reading these great decisions written by other judges,

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Speaker 4: where you know, you have a learned or a judge

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Speaker 4: posner who puts some rhetorical flourishes in cases. And people said,

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Speaker 4: they those are the famous judges, and they make their mark.

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Speaker 4: And so every judge wants to add rhetorical flourishes to

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Speaker 4: their case. And you know, sometimes the judges are very upset.

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Speaker 4: This judge is clearly very upset here. I think, personally

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Speaker 4: not that I want to be a judge anytime soon,

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Speaker 4: but if I were a judge, I think the most

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Speaker 4: effective judges are the ones that do not make it

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Speaker 4: look like in any way they're taking any of this personally,

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Speaker 4: and they're just basically printing out a decision the same

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Speaker 4: way chat GPT would do it, or you know, Microsoft

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Speaker 4: co pilot or something very impersonal, but just to lay

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Speaker 4: out the fact. And when somebody reads those in an

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Speaker 4: appellate court, they say, wow, that's a very thoughtful judge.

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Speaker 4: Clearly this judge was just trying to get it right.

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Speaker 4: Those decisions tend to have much more difference given to

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Speaker 4: them than the ones where there are these larger rhetorical fishes.

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Speaker 4: Although when you survive them, if you get those decisions upheld,

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Speaker 4: then those do become the famous decisions of all time

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Speaker 4: that get cited to students, that people read them. So

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Speaker 4: it kind of is a gamble. But this is why

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Speaker 4: those types of decisions get issued.

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Speaker 2: So we'll keep watch and see what the First Circuit

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Speaker 2: thinks of this opinion by Judge Young. Stay with me,

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Speaker 2: Leon coming up next. After a four year freeze, dreamers

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Speaker 2: will be able to submit DACA applications again. I'm June

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Speaker 2: Grosso and you're listening to Bloomberg. About half a million

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Speaker 2: so called dreamers live and work in the United States,

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Speaker 2: without fear of deportation. That's because of the Deferred Action

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Speaker 2: for Childhood Arrivals Program, or DACA, first launched in twenty twelve.

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Speaker 2: Data offers protections from deportation and work eligibility to immigrants

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Speaker 2: known as dreamers who arrived in the US as children

439
00:27:00,960 --> 00:27:03,760
Speaker 2: and we're no older than thirty when it was set up.

440
00:27:04,240 --> 00:27:08,119
Speaker 2: Legal battles over the Obama era program have stretched back

441
00:27:08,240 --> 00:27:12,119
Speaker 2: to the first Trump administration's attempt to end the protections.

442
00:27:12,920 --> 00:27:16,399
Speaker 2: DOCA has been closed to new applicants since twenty twenty

443
00:27:16,440 --> 00:27:20,439
Speaker 2: one while litigation played out, but now, in order to

444
00:27:20,480 --> 00:27:24,400
Speaker 2: comply with the court order, federal immigration officials have revealed

445
00:27:24,440 --> 00:27:28,920
Speaker 2: plans to reopen the DOCA program to new applicants. I've

446
00:27:28,920 --> 00:27:33,560
Speaker 2: been talking immigration law attorney Leon Fresco of Honda Knight. Leon,

447
00:27:33,640 --> 00:27:34,879
Speaker 2: tell us how we got here.

448
00:27:35,280 --> 00:27:38,560
Speaker 4: So here's what happened. So DOCA has been under a

449
00:27:38,680 --> 00:27:41,560
Speaker 4: nationwide injunction because of a lawsuit filed by the State

450
00:27:41,560 --> 00:27:44,639
Speaker 4: of Texas in the US District Court in Brownsville. And

451
00:27:44,720 --> 00:27:47,800
Speaker 4: so the idea was we wouldn't ever get back to

452
00:27:47,880 --> 00:27:50,800
Speaker 4: DOCA ever again until the Supreme Court finally was going

453
00:27:50,800 --> 00:27:53,720
Speaker 4: to decide once and for all, is DACA legal or not.

454
00:27:53,960 --> 00:27:58,040
Speaker 4: But in the birthright citizenship case, which we've also talked about,

455
00:27:58,520 --> 00:28:02,919
Speaker 4: the Supreme Court, although it didn't decide the birthright citizenship issue,

456
00:28:02,920 --> 00:28:05,840
Speaker 4: that issue is going to come up now. The Court

457
00:28:05,920 --> 00:28:09,440
Speaker 4: did say, you can't have a nationwide injunction. Well, guess

458
00:28:09,520 --> 00:28:12,320
Speaker 4: what happened the State of Texas in the case of

459
00:28:12,400 --> 00:28:17,960
Speaker 4: Texas versus the administration now Trump, but before Biden that

460
00:28:18,119 --> 00:28:22,040
Speaker 4: the state of Texas had a nationwide injunction against DAKA. Well,

461
00:28:22,160 --> 00:28:24,960
Speaker 4: you can't have a nation wide injunction. And the story here,

462
00:28:25,320 --> 00:28:27,680
Speaker 4: So the US government has agreed you can't have a

463
00:28:27,760 --> 00:28:31,640
Speaker 4: nationwide injunction. The Texas Court cannot have a nation wide injunction.

464
00:28:32,240 --> 00:28:34,399
Speaker 4: There's going to be a hearing again later this week

465
00:28:34,480 --> 00:28:37,520
Speaker 4: depending on the shutdown. So if the court goes forward

466
00:28:37,560 --> 00:28:40,520
Speaker 4: with this hearing, even the federal government has said that

467
00:28:40,600 --> 00:28:44,200
Speaker 4: the injunction can only basically apply to Texas, which means

468
00:28:44,240 --> 00:28:47,160
Speaker 4: for the other forty nine states, there will have to

469
00:28:47,160 --> 00:28:50,160
Speaker 4: be a process that reopens up sooner rather than later

470
00:28:50,680 --> 00:28:54,240
Speaker 4: where foreign nationals who are eligible for DAKA can now

471
00:28:54,360 --> 00:28:57,520
Speaker 4: begin to ask for DAKA again. What will be very

472
00:28:57,560 --> 00:29:00,800
Speaker 4: interesting to see is how many people actually do come

473
00:29:00,880 --> 00:29:05,280
Speaker 4: forward knowing that if DACA is invalidated, then they become

474
00:29:05,760 --> 00:29:09,480
Speaker 4: sitting ducks quote unquote, in the sense that the administration

475
00:29:09,560 --> 00:29:11,920
Speaker 4: would say, oh, well, thank you for applying for DACA.

476
00:29:12,000 --> 00:29:14,920
Speaker 4: The court has viewed this to be illegal, but thank

477
00:29:14,960 --> 00:29:16,960
Speaker 4: you for letting us know where you live and where

478
00:29:17,000 --> 00:29:20,719
Speaker 4: you are, and so now you're in deportation proceeding. So

479
00:29:21,240 --> 00:29:24,040
Speaker 4: that's the risk people will have to take. But by

480
00:29:24,080 --> 00:29:28,160
Speaker 4: the same token, if people get protected by DACA, and

481
00:29:28,240 --> 00:29:31,760
Speaker 4: if the Trump administration doesn't want to eliminate DACA, then

482
00:29:31,920 --> 00:29:35,120
Speaker 4: presumably they might actually end up being here legally. So

483
00:29:35,400 --> 00:29:37,680
Speaker 4: we'll have to wait and see. You have not actually

484
00:29:37,760 --> 00:29:42,600
Speaker 4: heard a ton of rhetoric from the Trump administration talking

485
00:29:42,680 --> 00:29:46,560
Speaker 4: about deporting people who are in the DACA program. You've

486
00:29:46,600 --> 00:29:49,520
Speaker 4: definitely heard it about the people who came during the

487
00:29:49,560 --> 00:29:54,200
Speaker 4: Biden administration. But remember that anyone who is on DAKA

488
00:29:54,400 --> 00:29:57,320
Speaker 4: was someone who was here since at least two thousand

489
00:29:57,360 --> 00:30:01,560
Speaker 4: and seven. So from that endpoint, we're talking about almost

490
00:30:01,560 --> 00:30:04,600
Speaker 4: twenty years that these people have been in the United States,

491
00:30:04,640 --> 00:30:07,760
Speaker 4: and they came as kids. You have not actually heard

492
00:30:07,840 --> 00:30:11,360
Speaker 4: the Trump administration talk about deporting these individuals, and so

493
00:30:11,520 --> 00:30:15,280
Speaker 4: it is possible that this program, it is determined to

494
00:30:15,320 --> 00:30:18,640
Speaker 4: be legal, might not be eliminated by the Trump administration.

495
00:30:18,720 --> 00:30:19,760
Speaker 4: Will have to wait and see.

496
00:30:20,000 --> 00:30:24,360
Speaker 2: But the first Trump administration did try to eliminate DACA, right.

497
00:30:24,720 --> 00:30:27,800
Speaker 4: Correct, They did try to eliminate DACA, and the Roberts

498
00:30:27,840 --> 00:30:30,680
Speaker 4: Court said at that time that the manner in which

499
00:30:30,720 --> 00:30:34,640
Speaker 4: they tried to do it was unlawful. But this court,

500
00:30:34,760 --> 00:30:39,440
Speaker 4: this Trump administration has basically been letting the court cases

501
00:30:40,400 --> 00:30:44,560
Speaker 4: travel as such. And while it definitely hasn't done anything

502
00:30:44,640 --> 00:30:49,920
Speaker 4: to help the DOCA recipients, it hasn't tried to scuttle

503
00:30:50,000 --> 00:30:54,400
Speaker 4: them in the kinds of ways that you might think

504
00:30:54,440 --> 00:30:57,720
Speaker 4: it might try to do in terms of individual revocations

505
00:30:58,120 --> 00:31:00,719
Speaker 4: or going to people's houses or things of this nature.

506
00:31:01,080 --> 00:31:02,840
Speaker 4: So we'll just have to wait and see. I'm not

507
00:31:02,920 --> 00:31:07,200
Speaker 4: saying that there couldn't be an order coming anytime that says, look,

508
00:31:07,280 --> 00:31:09,400
Speaker 4: we've changed our mind on DACA and we want it

509
00:31:09,400 --> 00:31:13,320
Speaker 4: all gone. But at this point, what they said is

510
00:31:13,920 --> 00:31:17,800
Speaker 4: the injunction should be limited to just Texas, and we

511
00:31:17,960 --> 00:31:22,200
Speaker 4: understand we're going to need to reprocess people's daca's cases again,

512
00:31:22,800 --> 00:31:24,760
Speaker 4: and so we'll have to wait and see what happened

513
00:31:24,760 --> 00:31:25,160
Speaker 4: from there.

514
00:31:25,520 --> 00:31:28,720
Speaker 2: So at the end of June, there were more than

515
00:31:28,800 --> 00:31:31,880
Speaker 2: five hundred and twenty five thousand people enrolled in DACA,

516
00:31:32,600 --> 00:31:36,280
Speaker 2: nearly eighty eight thousand of them live in Texas. So

517
00:31:36,440 --> 00:31:41,040
Speaker 2: Texas dreamers are not covered by this, so they're going

518
00:31:41,080 --> 00:31:44,360
Speaker 2: to have less rights than dreamers in other parts of

519
00:31:44,400 --> 00:31:46,640
Speaker 2: the country. How does that make sense?

520
00:31:47,120 --> 00:31:49,360
Speaker 4: Correct? I mean that will be a problem, but that

521
00:31:49,440 --> 00:31:53,360
Speaker 4: actually has happened a lot in immigration law. So for instance,

522
00:31:53,400 --> 00:31:56,760
Speaker 4: there are decisions to this day where if you live

523
00:31:56,760 --> 00:32:00,080
Speaker 4: in the Ninth Circuit, the law on asylum will be

524
00:32:00,080 --> 00:32:02,120
Speaker 4: better for you than if you live in the Fifth Circuit.

525
00:32:02,320 --> 00:32:05,680
Speaker 4: So that does exist in these contexts until the Supreme

526
00:32:05,720 --> 00:32:10,320
Speaker 4: Court harmonizes something nationwide, which sometimes they do and sometimes

527
00:32:10,320 --> 00:32:14,800
Speaker 4: they don't do. Never is it usually this disparate in

528
00:32:14,800 --> 00:32:17,680
Speaker 4: the sense that you can actually qualify for a document

529
00:32:18,200 --> 00:32:20,920
Speaker 4: in one state and you cannot qualify for a document

530
00:32:21,000 --> 00:32:24,640
Speaker 4: in another state. That's a very rare scenario that's happening

531
00:32:24,680 --> 00:32:28,640
Speaker 4: now because of the nationwide injunction issue. But what's interesting

532
00:32:28,840 --> 00:32:32,800
Speaker 4: is the way addresses work for the purposes of immigration

533
00:32:33,040 --> 00:32:36,960
Speaker 4: forms is you're not tied to Texas for the rest

534
00:32:37,040 --> 00:32:41,080
Speaker 4: of your life. If you legitimately move and you occupy

535
00:32:41,160 --> 00:32:45,000
Speaker 4: a residence in another state, as opposed to, you know,

536
00:32:45,240 --> 00:32:48,200
Speaker 4: actually lying about your address, you can't do that. You

537
00:32:48,200 --> 00:32:50,280
Speaker 4: cannot lie about your address. But if you were to

538
00:32:50,400 --> 00:32:55,680
Speaker 4: move to California or wherever, then you might actually be

539
00:32:55,720 --> 00:32:59,600
Speaker 4: eligible for those DOCA documents even though you were originally

540
00:32:59,600 --> 00:33:02,600
Speaker 4: in tech. So people will have decisions to make there

541
00:33:02,720 --> 00:33:03,240
Speaker 4: as well.

542
00:33:03,680 --> 00:33:10,160
Speaker 2: So, now this is the oddest deportation case I've heard of.

543
00:33:10,200 --> 00:33:14,080
Speaker 2: I'm sure you've heard of ones that are even more unique.

544
00:33:14,080 --> 00:33:19,520
Speaker 2: But the Des Moines School superintendent Ian Roberts is resigning

545
00:33:20,160 --> 00:33:23,880
Speaker 2: while he battles his federal case for deportation. He was

546
00:33:24,000 --> 00:33:29,640
Speaker 2: arrested by ICE agents in connection with the previously unreported

547
00:33:29,840 --> 00:33:33,760
Speaker 2: final order of removal an immigration judge issued in May

548
00:33:33,800 --> 00:33:38,160
Speaker 2: of twenty twenty four. He was hired as the superintendent

549
00:33:38,480 --> 00:33:41,479
Speaker 2: in May of twenty twenty three. I'm curious as to

550
00:33:41,520 --> 00:33:42,640
Speaker 2: how that could happen.

551
00:33:43,720 --> 00:33:49,320
Speaker 4: The way basically these things happen is there's a bunch

552
00:33:49,360 --> 00:33:52,479
Speaker 4: of i would say, identity issues in the immigration world,

553
00:33:52,800 --> 00:33:55,840
Speaker 4: but the only one that really matters is whatever identity

554
00:33:55,880 --> 00:33:59,240
Speaker 4: you have that's tied to your actual fingerprints in life.

555
00:33:59,760 --> 00:34:04,960
Speaker 4: So this individual Ian Roberts has an identity as a

556
00:34:05,040 --> 00:34:08,719
Speaker 4: Guyanese non citizen, so he's not a citizen of the

557
00:34:08,840 --> 00:34:14,280
Speaker 4: United States. He's from Guyana. And that this individual Ian Roberts,

558
00:34:14,320 --> 00:34:18,120
Speaker 4: with these fingerprints has a final order of removal because

559
00:34:18,280 --> 00:34:21,240
Speaker 4: this e of Roberts did not show up the court,

560
00:34:21,600 --> 00:34:23,680
Speaker 4: and so when you don't show up the court, you

561
00:34:23,920 --> 00:34:28,360
Speaker 4: have a final removal hearing. Now there's a person also

562
00:34:28,480 --> 00:34:33,239
Speaker 4: called Ian Roberts, who claimed in his immigration paperwork that

563
00:34:33,320 --> 00:34:36,719
Speaker 4: he gave to the Des Moines Public Schools that he

564
00:34:36,800 --> 00:34:40,799
Speaker 4: had resolved his immigration issues and that he had legal status,

565
00:34:41,080 --> 00:34:44,520
Speaker 4: and so the school didn't run him through what's called

566
00:34:44,560 --> 00:34:48,480
Speaker 4: the e Verify system, which is the system that basically

567
00:34:48,520 --> 00:34:52,080
Speaker 4: from the Homeland Security Department can tell you once and

568
00:34:52,160 --> 00:34:54,960
Speaker 4: for all who is the person you're dealing with. They

569
00:34:54,960 --> 00:34:57,440
Speaker 4: didn't do that. They used what's called the simple A

570
00:34:57,719 --> 00:35:02,760
Speaker 4: nine form document, which is the only thing you're actually

571
00:35:02,800 --> 00:35:05,719
Speaker 4: required to do as an employer. The everify is an

572
00:35:05,760 --> 00:35:09,040
Speaker 4: extra thing you can do. But the I nine paperwork

573
00:35:09,120 --> 00:35:12,520
Speaker 4: is simply the person fills out the paperwork and they

574
00:35:12,560 --> 00:35:16,160
Speaker 4: give a driver's license and a social Security number. And

575
00:35:16,239 --> 00:35:18,920
Speaker 4: if they do that and they claim they're a US citizen.

576
00:35:19,600 --> 00:35:23,400
Speaker 4: Then end the story, the employer really can't do anything

577
00:35:23,440 --> 00:35:27,040
Speaker 4: about it if that person gives you a driver's license

578
00:35:27,080 --> 00:35:30,200
Speaker 4: and a Social Security number and says they're a US citizen.

579
00:35:30,360 --> 00:35:33,279
Speaker 4: So the point is that that's the belief of what

580
00:35:33,360 --> 00:35:37,520
Speaker 4: Ian Roberts told the Des Moines Public Schools, and so

581
00:35:37,640 --> 00:35:39,680
Speaker 4: that's why they hired him. And then that the school

582
00:35:39,680 --> 00:35:43,920
Speaker 4: system didn't do a further investigation on this, And so

583
00:35:44,239 --> 00:35:49,319
Speaker 4: now Roberts resigns from the school board or from the

584
00:35:49,400 --> 00:35:53,800
Speaker 4: school system because this order of deportation ends up getting

585
00:35:53,840 --> 00:35:58,400
Speaker 4: executed against him. And Roberts is saying, I thought I

586
00:35:58,440 --> 00:36:01,480
Speaker 4: had fixed my city situation, and he's going to try

587
00:36:01,520 --> 00:36:04,319
Speaker 4: to make that argument an immigration court, but I don't

588
00:36:04,360 --> 00:36:06,319
Speaker 4: know how likely he is to prevail here.

589
00:36:06,760 --> 00:36:09,239
Speaker 2: And Liam, before I let you go, the Department of

590
00:36:09,440 --> 00:36:12,800
Speaker 2: Justice has just announced the creation of a new office

591
00:36:13,200 --> 00:36:18,239
Speaker 2: within the Civil Division that has implications for immigration. So

592
00:36:18,280 --> 00:36:20,200
Speaker 2: there used to be five branches.

593
00:36:20,680 --> 00:36:23,840
Speaker 4: What now There was an Immigration branch was the branch

594
00:36:23,880 --> 00:36:27,040
Speaker 4: I was the head of. There was a Federal Programs branch,

595
00:36:27,080 --> 00:36:29,760
Speaker 4: There was an appellate branch. There was just a normal

596
00:36:29,800 --> 00:36:34,120
Speaker 4: civil litigation branch, and a consumer protection branch. That Consumer

597
00:36:34,200 --> 00:36:38,200
Speaker 4: Protection branch has been eliminated and it's been replaced by

598
00:36:38,200 --> 00:36:42,479
Speaker 4: something called the Enforcement and Affirmative Litigation branch. And what's

599
00:36:42,520 --> 00:36:46,640
Speaker 4: interesting is that the Affirmative Litigation branch is basically going

600
00:36:46,719 --> 00:36:50,080
Speaker 4: to be used to sue states and cities about both

601
00:36:50,160 --> 00:36:55,440
Speaker 4: immigration and about transgender issues. And so they're basically going

602
00:36:55,480 --> 00:36:59,560
Speaker 4: to be looking across the country for are any transgender

603
00:37:00,400 --> 00:37:04,040
Speaker 4: or other type issues, or any sanctuary city, or any

604
00:37:04,480 --> 00:37:07,600
Speaker 4: scholarships being given to foreign nationals that are not being

605
00:37:07,640 --> 00:37:11,120
Speaker 4: given to citizens or anything like that, and they're just

606
00:37:11,160 --> 00:37:14,840
Speaker 4: going to be scouring the waterfront looking for any person

607
00:37:14,920 --> 00:37:18,399
Speaker 4: to sue, or any official or any city or any

608
00:37:18,480 --> 00:37:23,400
Speaker 4: state that they believe is violating the laws with regards

609
00:37:23,400 --> 00:37:26,759
Speaker 4: to both immigration and with regards to transgender issue.

610
00:37:27,160 --> 00:37:31,720
Speaker 2: New priorities for this Department of Justice. Thanks so much, Leon.

611
00:37:31,760 --> 00:37:35,439
Speaker 2: As always, that's Leon Fresco, a partner at Honda Knight.

612
00:37:35,960 --> 00:37:38,239
Speaker 2: And that's it for this edition of The Bloomberg Law Show.

613
00:37:38,600 --> 00:37:40,960
Speaker 2: Remember you can always get the latest legal news on

614
00:37:41,000 --> 00:37:45,279
Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

615
00:37:45,480 --> 00:37:50,520
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law.

616
00:37:50,920 --> 00:37:53,520
Speaker 2: And remember to tune into the Bloomberg Law Show every

617
00:37:53,560 --> 00:37:57,440
Speaker 2: weeknight at ten pm Wall Street Time. I'm Jim Grosso

618
00:37:57,600 --> 00:37:59,200
Speaker 2: and you're listening to Bloomberg