1
00:00:03,200 --> 00:00:08,000
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:10,280 --> 00:00:13,240
Speaker 2: Immigration will no doubt be a top issue in the

3
00:00:13,280 --> 00:00:14,600
Speaker 2: presidential campaign.

4
00:00:15,040 --> 00:00:17,680
Speaker 1: Donald Trump does not care about border security.

5
00:00:18,720 --> 00:00:20,440
Speaker 3: He only cares about himself.

6
00:00:20,920 --> 00:00:24,599
Speaker 2: Vice President Kamala Harris has come out swinging, trying to

7
00:00:24,640 --> 00:00:28,240
Speaker 2: flip the script on former President Donald Trump on his

8
00:00:28,400 --> 00:00:33,080
Speaker 2: favorite issue, blaming Trump for convincing Republicans to tank the

9
00:00:33,159 --> 00:00:37,440
Speaker 2: bipartisan border deal earlier this year. For their part, Republicans

10
00:00:37,479 --> 00:00:41,000
Speaker 2: are blaming Harris for the migrant crisis, calling her a

11
00:00:41,040 --> 00:00:46,520
Speaker 2: failed border czar. GOP Vice presidential candidate JD. Vance went

12
00:00:46,600 --> 00:00:49,600
Speaker 2: down to the southern border last week to make his point.

13
00:00:50,000 --> 00:00:53,640
Speaker 4: They stopped deportations on day one. They stopped construction of

14
00:00:53,680 --> 00:00:55,800
Speaker 4: the border wall on day one. We see the border

15
00:00:55,800 --> 00:00:58,840
Speaker 4: wall sitting here ready to be completed behind us, and

16
00:00:58,920 --> 00:01:01,560
Speaker 4: that can't happen because of Kamala Harris's administration.

17
00:01:01,840 --> 00:01:06,560
Speaker 2: There are seemingly endless court cases around immigration issues, but

18
00:01:06,760 --> 00:01:10,440
Speaker 2: one rule that's been litigated for almost a decade has

19
00:01:10,480 --> 00:01:13,800
Speaker 2: sort of flown under the radar, but now it's withstood

20
00:01:13,920 --> 00:01:18,320
Speaker 2: another federal appeals court challenge. The DC's Circuit Court has

21
00:01:18,440 --> 00:01:23,319
Speaker 2: okay to rule extending employment authorization to spouses of H

22
00:01:23,440 --> 00:01:27,319
Speaker 2: one B visa holders. Joining me is immigration law expertly

23
00:01:27,440 --> 00:01:29,920
Speaker 2: on Fresco, a partner at Holland and knight Lee, and

24
00:01:29,959 --> 00:01:32,679
Speaker 2: I think we need to start with a basic understanding

25
00:01:33,000 --> 00:01:36,200
Speaker 2: of what an H one B visa is and what

26
00:01:36,240 --> 00:01:37,480
Speaker 2: an H four visa is.

27
00:01:37,840 --> 00:01:40,319
Speaker 1: So an H to one B visa is a visa

28
00:01:40,400 --> 00:01:43,520
Speaker 1: that people can obtain in the United States if they

29
00:01:43,560 --> 00:01:46,520
Speaker 1: are providing what it's called high skill labor or what

30
00:01:46,640 --> 00:01:50,000
Speaker 1: is actually in the statute called a specialty occupation, which

31
00:01:50,080 --> 00:01:53,800
Speaker 1: is a job that requires at least a bachelor's degree

32
00:01:53,840 --> 00:01:57,440
Speaker 1: to perform as designated by the Department of Labor, and

33
00:01:57,680 --> 00:02:01,640
Speaker 1: the person has the exact specific degree required to perform

34
00:02:01,720 --> 00:02:04,960
Speaker 1: that job. So each year there's a lottery because there's

35
00:02:04,960 --> 00:02:08,480
Speaker 1: many more companies that want these visas that exist, and

36
00:02:08,520 --> 00:02:11,680
Speaker 1: there's eighty five thousand of these visas per year, and

37
00:02:11,720 --> 00:02:16,400
Speaker 1: so what happens is about seventy percent of them are

38
00:02:16,520 --> 00:02:19,680
Speaker 1: taken by people from India. Because of both the English

39
00:02:19,760 --> 00:02:23,639
Speaker 1: language and the large population and the amount of high

40
00:02:23,680 --> 00:02:27,240
Speaker 1: skilled education and training people from India tend to get.

41
00:02:27,760 --> 00:02:30,040
Speaker 1: This is the largest group of people who get it,

42
00:02:30,520 --> 00:02:32,760
Speaker 1: and so they come to the United States on these

43
00:02:32,800 --> 00:02:36,359
Speaker 1: Age one B visas, their spouses and their children can

44
00:02:36,360 --> 00:02:39,040
Speaker 1: come with them, and the name of their visa is

45
00:02:39,080 --> 00:02:42,400
Speaker 1: called an age four visa. So the principal worker is

46
00:02:42,440 --> 00:02:44,720
Speaker 1: on the H one B, the spouse and the children

47
00:02:44,800 --> 00:02:48,919
Speaker 1: are on the age four visa, And when you arrive,

48
00:02:49,280 --> 00:02:52,120
Speaker 1: the people on age four visas are not allowed to work.

49
00:02:52,639 --> 00:02:57,200
Speaker 1: But what happens is that the people then apply for

50
00:02:57,320 --> 00:03:00,720
Speaker 1: Green cards. And there was a regulation that the Obama

51
00:03:00,760 --> 00:03:06,320
Speaker 1: administration did in twenty fifteen that said that if an

52
00:03:06,360 --> 00:03:09,760
Speaker 1: Indian national and this is really only related to Indian

53
00:03:09,840 --> 00:03:12,840
Speaker 1: nationals at the beginning, Now it's related to a lot

54
00:03:12,880 --> 00:03:16,560
Speaker 1: of other people because what happened was there are only

55
00:03:16,639 --> 00:03:20,120
Speaker 1: one hundred and twenty thousand employment based Green cards that

56
00:03:20,160 --> 00:03:23,480
Speaker 1: are permitted each year, and there are many many more

57
00:03:23,560 --> 00:03:27,960
Speaker 1: people in the pool waiting for green cards than are

58
00:03:28,400 --> 00:03:32,079
Speaker 1: permitted to apply each year. There's about a million people

59
00:03:32,080 --> 00:03:34,760
Speaker 1: in the backlog right now. And what makes it worse

60
00:03:35,240 --> 00:03:39,040
Speaker 1: is there's something called a per country limit on Green cards,

61
00:03:39,160 --> 00:03:42,560
Speaker 1: which means that any one country can only get ninety

62
00:03:42,560 --> 00:03:46,600
Speaker 1: eight hundred of the green cards each year, which means

63
00:03:46,880 --> 00:03:49,560
Speaker 1: that the Indian line is about two hundred years long.

64
00:03:49,640 --> 00:03:52,240
Speaker 1: It's really really long, and someone who gets in the

65
00:03:52,240 --> 00:03:54,200
Speaker 1: line now won't get a Green card. They will be

66
00:03:54,360 --> 00:03:58,240
Speaker 1: stuck here permanently on this quasi H one B status.

67
00:03:58,280 --> 00:04:01,160
Speaker 1: So what the Obama administration said is if you're stuck

68
00:04:01,200 --> 00:04:05,800
Speaker 1: in that status, your spouse can work. So that's what

69
00:04:06,000 --> 00:04:10,040
Speaker 1: this H four EAD case was about, was about this

70
00:04:10,200 --> 00:04:14,760
Speaker 1: Obama regulation from twenty to fifteen that said that the

71
00:04:14,840 --> 00:04:18,520
Speaker 1: spouses of people in this backlog, which is people who've

72
00:04:18,520 --> 00:04:22,719
Speaker 1: been approved for a Green card ostensibly because they meet

73
00:04:22,760 --> 00:04:25,719
Speaker 1: the criteria. They came on an H one B, but

74
00:04:25,800 --> 00:04:28,559
Speaker 1: they've been approved for a Green card as a matter

75
00:04:28,600 --> 00:04:32,120
Speaker 1: of merit, but they cannot receive the green card because

76
00:04:32,279 --> 00:04:35,240
Speaker 1: of the backlog, which is two hundred years long, so

77
00:04:35,279 --> 00:04:38,480
Speaker 1: they will never receive it. That the spouse of this

78
00:04:38,520 --> 00:04:42,120
Speaker 1: person who is an aged four can't work because what

79
00:04:42,200 --> 00:04:45,400
Speaker 1: they didn't want is people just permanently here in flux

80
00:04:45,480 --> 00:04:49,000
Speaker 1: with no rights. Ever, so the Obama administration did a

81
00:04:49,040 --> 00:04:52,719
Speaker 1: regulation that allowed these people to work. And then what

82
00:04:52,839 --> 00:04:57,800
Speaker 1: happens is a restrictionist group who ostensibly designated itself as

83
00:04:57,839 --> 00:05:00,479
Speaker 1: a labor union, but isn't really a labor you it's

84
00:05:00,480 --> 00:05:03,840
Speaker 1: more of an association of members of people who want

85
00:05:03,880 --> 00:05:09,200
Speaker 1: restrictionist trade policies called Safe Jobs USA file the lawsuit

86
00:05:09,240 --> 00:05:11,440
Speaker 1: saying that regulation was illegal.

87
00:05:11,960 --> 00:05:15,120
Speaker 2: This has been going on for nearly a decade, since twenty.

88
00:05:15,000 --> 00:05:20,080
Speaker 1: Fifteen, correct, This case has been going on in various iterations.

89
00:05:20,120 --> 00:05:23,480
Speaker 1: What happened was the lawsuit was filed in twenty fifteen,

90
00:05:24,080 --> 00:05:27,680
Speaker 1: it worked its way through the Trump administration. The Trump

91
00:05:27,720 --> 00:05:32,680
Speaker 1: administration was actually going to repeal the Obama regulation, but

92
00:05:32,839 --> 00:05:35,479
Speaker 1: because this lawsuit happened, they decided to just let this

93
00:05:35,600 --> 00:05:39,120
Speaker 1: lawsuit play out. Well, it's very interesting was an immigration

94
00:05:39,240 --> 00:05:43,599
Speaker 1: group called Immigration Voice, who represents the foreign nationals that

95
00:05:43,640 --> 00:05:47,839
Speaker 1: are in this backlog, intervened which prevented the Trump administration

96
00:05:47,960 --> 00:05:52,760
Speaker 1: from reaching a pollusive settlement with the folks who have

97
00:05:52,880 --> 00:05:55,640
Speaker 1: filed the lawsuit, because otherwise the Trump administration would have

98
00:05:55,640 --> 00:05:57,880
Speaker 1: just settled and said, you know what, this is illegal.

99
00:05:58,120 --> 00:06:00,760
Speaker 1: Were taking this away, but they couldn't because there was

100
00:06:00,800 --> 00:06:04,400
Speaker 1: an intervention by a group called Immigration Voice that allowed

101
00:06:04,400 --> 00:06:08,560
Speaker 1: this case to continue. So that group continued the case

102
00:06:08,800 --> 00:06:12,880
Speaker 1: and they kept getting ruling after ruling saying that the

103
00:06:13,680 --> 00:06:19,600
Speaker 1: regulation was lawful, until finally, in a different case called WASHTEC,

104
00:06:20,000 --> 00:06:23,960
Speaker 1: which was about a different policy called optional practical Training,

105
00:06:24,000 --> 00:06:28,120
Speaker 1: which allows people on student visus to work. The Supreme

106
00:06:28,120 --> 00:06:35,400
Speaker 1: Court basically said it is okay to create work permits

107
00:06:35,440 --> 00:06:39,440
Speaker 1: for certain classes of immigrants, meaning that this power has

108
00:06:39,480 --> 00:06:44,360
Speaker 1: been given by Congress to the administration. And because that's

109
00:06:44,360 --> 00:06:47,080
Speaker 1: been given by Congress, there are no several issues, there's

110
00:06:47,120 --> 00:06:50,200
Speaker 1: nothing to interpret. The law is very clear that the

111
00:06:50,279 --> 00:06:54,920
Speaker 1: administration can designate different pathways for work for people who

112
00:06:54,960 --> 00:06:58,080
Speaker 1: are illegally. That's not a question about people who are

113
00:06:58,080 --> 00:07:00,880
Speaker 1: here illegally. But the spy of an H one B

114
00:07:01,480 --> 00:07:05,600
Speaker 1: recipient is here legally, and so the question is can

115
00:07:05,680 --> 00:07:09,520
Speaker 1: they work. And the plaintiffs had said no, they can't

116
00:07:09,520 --> 00:07:12,679
Speaker 1: because there was no statute saying that they could specifically work.

117
00:07:13,280 --> 00:07:16,720
Speaker 1: But the Court held, and has now held many many

118
00:07:16,800 --> 00:07:20,760
Speaker 1: different times, most recently now the DC Circuit yet again,

119
00:07:21,280 --> 00:07:25,720
Speaker 1: after this Washteck case, has held yet again that there

120
00:07:25,760 --> 00:07:29,360
Speaker 1: is no Major Questions doctrine. There's no Chevron doctrine, there's

121
00:07:29,480 --> 00:07:32,760
Speaker 1: nothing here Low or Bride. None of these things apply

122
00:07:33,280 --> 00:07:36,080
Speaker 1: because there's a statue that, even though it doesn't say

123
00:07:36,560 --> 00:07:40,960
Speaker 1: that H four thousands can work, it says that the

124
00:07:41,000 --> 00:07:45,840
Speaker 1: Secretary of Homeland Security can declare any legal immigrant ability

125
00:07:45,880 --> 00:07:49,320
Speaker 1: to work if they issue a regulation doing so, which

126
00:07:49,400 --> 00:07:51,200
Speaker 1: had been indeed done in this case.

127
00:07:51,480 --> 00:07:54,880
Speaker 2: This case seems to be the perfect example of endless

128
00:07:54,920 --> 00:07:58,520
Speaker 2: litigation going in circles. I mean, how does this case

129
00:07:58,600 --> 00:07:59,320
Speaker 2: keep going?

130
00:08:00,120 --> 00:08:04,520
Speaker 1: Well, it keeps going because the Supreme Court itself hasn't

131
00:08:04,560 --> 00:08:09,880
Speaker 1: shut down this specific case. So what happened was this case.

132
00:08:09,960 --> 00:08:14,040
Speaker 1: It was denied on standing, Then the standing case was

133
00:08:14,040 --> 00:08:17,800
Speaker 1: brought back by the DC Circuit back to the district court.

134
00:08:17,880 --> 00:08:21,360
Speaker 1: Then it was granted on the merit. Then the case

135
00:08:21,520 --> 00:08:25,160
Speaker 1: was pending and stayed for the wash Tech case. I

136
00:08:25,280 --> 00:08:27,840
Speaker 1: was in the Supreme Court. Then the wash Tech case

137
00:08:27,920 --> 00:08:31,040
Speaker 1: was decided in favor of the administration's ability to give

138
00:08:31,120 --> 00:08:36,080
Speaker 1: work permits. Then the DC Circuit case was reopened, and

139
00:08:36,320 --> 00:08:38,520
Speaker 1: the plaintiff strikes to say, yeah, but that was just

140
00:08:38,559 --> 00:08:42,000
Speaker 1: this opt that wasn't eighty four, and they didn't consider

141
00:08:42,040 --> 00:08:45,920
Speaker 1: the major questions doctrine, and they didn't consider low per Bride.

142
00:08:46,440 --> 00:08:49,320
Speaker 1: And what the DC Circuit said is, look, we're shutting

143
00:08:49,320 --> 00:08:51,840
Speaker 1: this all down. None of these things have anything to

144
00:08:51,880 --> 00:08:56,640
Speaker 1: do with anything, because what you're saying is that there's

145
00:08:56,679 --> 00:08:59,680
Speaker 1: some interpretation going on, and there isn't. There's a very

146
00:08:59,679 --> 00:09:04,280
Speaker 1: clear statute that's in the Immigration and Nationality Act that

147
00:09:04,480 --> 00:09:08,960
Speaker 1: literally says that the Secretary of Homeland Security has the

148
00:09:09,000 --> 00:09:13,520
Speaker 1: ability by regulation to give any person who's here legally

149
00:09:14,040 --> 00:09:17,360
Speaker 1: a work authorization. And so because of that, there doesn't

150
00:09:17,480 --> 00:09:21,120
Speaker 1: need to be a specific statue that gives a specific

151
00:09:21,160 --> 00:09:25,240
Speaker 1: group of people a work permit. That's not needed because

152
00:09:25,240 --> 00:09:29,400
Speaker 1: the Congress already gave the authority very clearly nothing to

153
00:09:29,480 --> 00:09:32,640
Speaker 1: interpret for a regulation to be issued to give people

154
00:09:32,760 --> 00:09:34,479
Speaker 1: work authorization status.

155
00:09:34,679 --> 00:09:39,080
Speaker 2: And the decision here was written by a very very

156
00:09:39,240 --> 00:09:42,440
Speaker 2: conservative Trump appointee, Justin Walker.

157
00:09:43,440 --> 00:09:47,000
Speaker 1: Yes, I mean, I think the point here is if

158
00:09:47,040 --> 00:09:49,800
Speaker 1: you really just look at the statute and now it's interpreted,

159
00:09:49,880 --> 00:09:53,640
Speaker 1: you could be very angry that Congress wrote that statute,

160
00:09:53,640 --> 00:09:56,440
Speaker 1: which is I think where the plaintiffs were in this case.

161
00:09:56,760 --> 00:09:59,719
Speaker 1: But you can't deny that that statue was written, and

162
00:09:59,760 --> 00:10:02,120
Speaker 1: so they were trying to get some sort of limitation

163
00:10:02,240 --> 00:10:05,520
Speaker 1: on it. But if you are a strict textualist, you

164
00:10:05,640 --> 00:10:07,800
Speaker 1: really have to read the strict text here, and that

165
00:10:07,960 --> 00:10:12,160
Speaker 1: text does permit the employment authorization to be done as

166
00:10:12,240 --> 00:10:14,680
Speaker 1: long as there's a regulation which does it. And the

167
00:10:14,720 --> 00:10:19,000
Speaker 1: Obama administration did do this regulation. In twenty fifteen, the.

168
00:10:19,160 --> 00:10:23,560
Speaker 2: Attorney for the group Saved Jobs USA said they're going

169
00:10:23,600 --> 00:10:27,160
Speaker 2: to petition the Circuit Court to rehear the case, which

170
00:10:27,160 --> 00:10:29,640
Speaker 2: would be your quest for an on bank hearing. And

171
00:10:29,720 --> 00:10:32,720
Speaker 2: if that fails, to appeal to the Supreme Court. Do

172
00:10:32,760 --> 00:10:34,880
Speaker 2: you think the Circuit Court would take it on bank?

173
00:10:34,960 --> 00:10:36,079
Speaker 2: Do you think the Supreme Court?

174
00:10:36,160 --> 00:10:38,840
Speaker 1: I don't think. I think given the caliber of the

175
00:10:39,280 --> 00:10:42,600
Speaker 1: judges that were on this three judge panel, there's no

176
00:10:42,720 --> 00:10:46,160
Speaker 1: way that the DC Circuit will take this on bank.

177
00:10:46,520 --> 00:10:49,280
Speaker 1: And I think the Supreme Court will do now, based

178
00:10:49,280 --> 00:10:51,520
Speaker 1: off of what it has done in the past, just

179
00:10:51,559 --> 00:10:55,800
Speaker 1: deny sirsiary because in these immigration cases where the government

180
00:10:55,840 --> 00:11:00,160
Speaker 1: doesn't want circiary and you have a bipartisan panel the

181
00:11:00,240 --> 00:11:04,320
Speaker 1: DC Circuit, it's very unlikely that the Supreme Court will

182
00:11:04,360 --> 00:11:06,640
Speaker 1: grant sirchiar area. If they were going to do something,

183
00:11:06,679 --> 00:11:09,160
Speaker 1: they would have done it in the Washtec case, which

184
00:11:09,320 --> 00:11:12,400
Speaker 1: was a case where Justice Kavanaugh had when he was

185
00:11:12,400 --> 00:11:14,959
Speaker 1: a DC Circuit judge, I had actually argued the case

186
00:11:15,240 --> 00:11:17,400
Speaker 1: in front of us Kavanaugh back when he was in

187
00:11:17,440 --> 00:11:21,560
Speaker 1: the DC Circuit. He had thought, well, maybe it's a

188
00:11:21,559 --> 00:11:24,920
Speaker 1: little bit ridiculous, even though there's this statue to give

189
00:11:25,000 --> 00:11:28,920
Speaker 1: work permits to students because they should leave the country

190
00:11:28,920 --> 00:11:32,240
Speaker 1: once they're done being students once. They didn't take that

191
00:11:32,280 --> 00:11:36,040
Speaker 1: one apart, and they let that one say. Then this

192
00:11:36,240 --> 00:11:38,760
Speaker 1: other group, which is much more sympathetic, because they are

193
00:11:38,800 --> 00:11:42,920
Speaker 1: literally people here in limbo until they die, and either

194
00:11:42,920 --> 00:11:45,439
Speaker 1: they'll be allowed to work or not, it's going to

195
00:11:45,520 --> 00:11:49,199
Speaker 1: be much more difficult to take those people's work authorizations away.

196
00:11:49,440 --> 00:11:52,960
Speaker 2: Coming up next, I'll continue this conversation with Leon Fresco.

197
00:11:53,520 --> 00:11:57,880
Speaker 2: A federal judge demands that Texas sanda high ranking lawyer

198
00:11:58,160 --> 00:12:01,920
Speaker 2: in person to a hearing. None of that video conference stuff.

199
00:12:02,120 --> 00:12:05,960
Speaker 2: This is Bloomberg. I've been talking to immigration law expert

200
00:12:06,040 --> 00:12:10,000
Speaker 2: Leon Fresco of Holland and Knight about a DC Circuit

201
00:12:10,040 --> 00:12:14,440
Speaker 2: Court decision that okays the rule allowing spouses of H

202
00:12:14,559 --> 00:12:18,199
Speaker 2: one B visa holders to seek employment. It's a case

203
00:12:18,200 --> 00:12:22,120
Speaker 2: that's been going on for nearly a decade. And Leon,

204
00:12:22,240 --> 00:12:25,520
Speaker 2: how often does the H one B visa have to

205
00:12:25,559 --> 00:12:26,160
Speaker 2: be renewed?

206
00:12:26,360 --> 00:12:28,520
Speaker 1: It has to be renewed every three years. And if

207
00:12:28,520 --> 00:12:30,760
Speaker 1: they want to change employers, they actually have to get

208
00:12:30,760 --> 00:12:33,560
Speaker 1: a new employer to file a whole new petition. So

209
00:12:33,720 --> 00:12:36,560
Speaker 1: a lot of people, you know, compare this program to

210
00:12:36,600 --> 00:12:40,240
Speaker 1: some form of indentured servitude because these people are literally

211
00:12:40,280 --> 00:12:42,920
Speaker 1: only allowed to remain in America so long as they're

212
00:12:43,000 --> 00:12:46,200
Speaker 1: useful to an employer. So when these folks turn seventy

213
00:12:46,280 --> 00:12:48,200
Speaker 1: or eighty, who knows what's going to happen to them?

214
00:12:48,440 --> 00:12:50,280
Speaker 1: Will they be allowed to say or not? Because if

215
00:12:50,320 --> 00:12:52,920
Speaker 1: they're not tied to an employer where they're currently working,

216
00:12:53,320 --> 00:12:55,120
Speaker 1: it's going to be bad luck for them. And so

217
00:12:55,360 --> 00:12:59,440
Speaker 1: this whole program is careening toward human tragedies, but we're

218
00:12:59,480 --> 00:13:01,760
Speaker 1: not quite there yet, but we're getting there as each

219
00:13:01,840 --> 00:13:02,640
Speaker 1: year progresses.

220
00:13:02,880 --> 00:13:06,600
Speaker 2: Well, have these visas been caught up in the debate

221
00:13:06,640 --> 00:13:07,479
Speaker 2: over immigration.

222
00:13:08,280 --> 00:13:11,559
Speaker 1: Absolutely, there's a huge debate over what to do with

223
00:13:11,600 --> 00:13:16,319
Speaker 1: this population because this population keeps getting older and older.

224
00:13:16,440 --> 00:13:19,560
Speaker 1: One of the debate topics is, well, just get rid

225
00:13:19,640 --> 00:13:22,280
Speaker 1: of the per country limit so that at least everybody

226
00:13:22,360 --> 00:13:24,439
Speaker 1: has the same weight tign there isn't a two hundred

227
00:13:24,480 --> 00:13:27,560
Speaker 1: year weight time for Indians and a one year weight

228
00:13:27,640 --> 00:13:31,079
Speaker 1: time for everybody else. That bill has passed the House

229
00:13:31,200 --> 00:13:33,719
Speaker 1: and the Senate, but never in the same year, So

230
00:13:34,000 --> 00:13:37,280
Speaker 1: that's been a human disaster there, and then there's bills

231
00:13:37,280 --> 00:13:40,160
Speaker 1: that try to increase the total amount of green cards

232
00:13:40,520 --> 00:13:44,800
Speaker 1: per year, but those bills have never passed because at

233
00:13:44,800 --> 00:13:48,880
Speaker 1: the moment there's been restrictionists, mostly in the Republican Party,

234
00:13:49,160 --> 00:13:51,400
Speaker 1: who have said they don't want to increase the levels

235
00:13:51,400 --> 00:13:54,560
Speaker 1: of legal immigration. But there's also been opposition in the

236
00:13:54,600 --> 00:13:58,400
Speaker 1: Democratic Party saying you can't just do something unemployment based

237
00:13:58,400 --> 00:14:01,280
Speaker 1: immigration if you're not going to to do something on

238
00:14:01,400 --> 00:14:05,600
Speaker 1: the compassionate side of immigration. And so this is just

239
00:14:05,679 --> 00:14:09,440
Speaker 1: one of these huge messas that exists in the immigration system, Leeann.

240
00:14:09,520 --> 00:14:13,599
Speaker 2: I know that the Czech giants like Apple and Amazon

241
00:14:13,679 --> 00:14:18,040
Speaker 2: and business groups support these visa programs, but the claim

242
00:14:18,360 --> 00:14:23,120
Speaker 2: is that these visa holders take jobs away from Americans.

243
00:14:23,400 --> 00:14:25,520
Speaker 2: Is that right grounded in fact?

244
00:14:26,240 --> 00:14:29,240
Speaker 1: Well, I mean, it just depends because here's what happens.

245
00:14:29,280 --> 00:14:34,400
Speaker 1: So oddly enough, the h one B immigrant is a

246
00:14:34,440 --> 00:14:37,600
Speaker 1: person who's tied to a specific employer, but the work

247
00:14:37,640 --> 00:14:41,200
Speaker 1: permit that this person's house gets is actually not tied

248
00:14:41,240 --> 00:14:44,280
Speaker 1: to any employer. So they're just people who go into

249
00:14:44,320 --> 00:14:47,680
Speaker 1: the labor market. And so let's say that right now

250
00:14:47,680 --> 00:14:50,760
Speaker 1: there's about three hundred thousand of these people in the

251
00:14:50,840 --> 00:14:54,680
Speaker 1: workforce depending on what they're doing. If they're doing mostly

252
00:14:54,760 --> 00:14:58,360
Speaker 1: high skilled jobs, the job openings in the high skilled

253
00:14:58,600 --> 00:15:01,560
Speaker 1: area are still much more, much higher than the unemployment

254
00:15:01,680 --> 00:15:04,640
Speaker 1: in that area. If you go on the lower end,

255
00:15:05,160 --> 00:15:07,480
Speaker 1: it might be an argument, but the people who are

256
00:15:07,480 --> 00:15:10,320
Speaker 1: actually making this lawsuit are people who claim to be

257
00:15:10,400 --> 00:15:13,320
Speaker 1: representing people on the higher end. And so that's where

258
00:15:13,320 --> 00:15:16,720
Speaker 1: also this claim didn't really make sense from the perspective

259
00:15:16,800 --> 00:15:21,080
Speaker 1: of the organization challenging the regulation because they were claiming

260
00:15:21,160 --> 00:15:23,280
Speaker 1: that the higher end jobs were being taken away. So

261
00:15:23,320 --> 00:15:27,520
Speaker 1: they were assuming couples where both spouses were doing high

262
00:15:27,600 --> 00:15:30,800
Speaker 1: skilled labor. But the point is, if that were the scenario,

263
00:15:31,120 --> 00:15:34,120
Speaker 1: then three hundred thousand people is a drop in the

264
00:15:34,160 --> 00:15:38,280
Speaker 1: bucket compared to the several million job openings that still

265
00:15:38,280 --> 00:15:39,760
Speaker 1: exist in the high tech area.

266
00:15:40,080 --> 00:15:43,720
Speaker 2: So now let's switch to something that I can't believe

267
00:15:43,840 --> 00:15:47,360
Speaker 2: is still going on, the battle over Texas having put

268
00:15:47,480 --> 00:15:51,080
Speaker 2: those floating buoys in the Rio Grant and the US

269
00:15:51,160 --> 00:15:54,600
Speaker 2: government is suing to have the barriers removed. Didn't the

270
00:15:54,640 --> 00:15:57,920
Speaker 2: Supreme Court already decide this in part? Or is that

271
00:15:58,040 --> 00:15:59,840
Speaker 2: another border dispute with chexas well.

272
00:16:00,320 --> 00:16:03,960
Speaker 1: Was actually brought back? What happened was here's the background.

273
00:16:04,000 --> 00:16:07,600
Speaker 1: So Texas began employing these things and these booies. In

274
00:16:07,760 --> 00:16:11,200
Speaker 1: June of twenty twenty three, Texas spends one hundred and

275
00:16:11,240 --> 00:16:14,120
Speaker 1: fifty thousand dollars on the barrier. They put one thousand

276
00:16:14,200 --> 00:16:17,720
Speaker 1: feet buoys. Then in twenty twenty three, the Justice Department

277
00:16:17,840 --> 00:16:23,600
Speaker 1: sues in federal court and they actually win in the case,

278
00:16:23,720 --> 00:16:26,240
Speaker 1: and then the case goes up to the Fifth Circuit,

279
00:16:26,680 --> 00:16:30,920
Speaker 1: and then it actually does go up to the Supreme Court,

280
00:16:31,560 --> 00:16:34,920
Speaker 1: and it goes back down saying here's some things you

281
00:16:35,000 --> 00:16:39,520
Speaker 1: need to consider. So there wasn't an actual final resolution there,

282
00:16:40,120 --> 00:16:42,920
Speaker 1: and then it goes back down to the district court.

283
00:16:43,520 --> 00:16:46,640
Speaker 1: And in the district court they issue an injunction saying

284
00:16:47,160 --> 00:16:50,040
Speaker 1: that at the end of the day, this is a

285
00:16:50,200 --> 00:16:53,160
Speaker 1: threat to public safety. It needed to be done by

286
00:16:53,200 --> 00:16:56,440
Speaker 1: the Army Corps engineer. It wasn't approved by the Army

287
00:16:56,480 --> 00:17:00,920
Speaker 1: Corps engineer, so they issued an injunction. And then the

288
00:17:00,960 --> 00:17:04,880
Speaker 1: Fifth Circuit had actually also in a panel decision, had

289
00:17:04,880 --> 00:17:08,879
Speaker 1: affirmed that injunction and said you can't have the barriers.

290
00:17:09,280 --> 00:17:13,879
Speaker 1: But now the full unbank Fifth Circuit came back in

291
00:17:14,760 --> 00:17:18,040
Speaker 1: and said, while this case is going to be decided

292
00:17:18,160 --> 00:17:22,159
Speaker 1: on the merit of the federal government's claim. We don't

293
00:17:22,200 --> 00:17:25,680
Speaker 1: think that when this case gets decided on the merits

294
00:17:26,080 --> 00:17:28,719
Speaker 1: that it's likely that the federal government is going to

295
00:17:28,760 --> 00:17:31,880
Speaker 1: win because we don't think that these booies are actually

296
00:17:32,000 --> 00:17:35,439
Speaker 1: in the navigable stretch of the Rio Grand River. So

297
00:17:35,560 --> 00:17:38,760
Speaker 1: that's basically their decision is. They said, had these booies

298
00:17:38,840 --> 00:17:42,440
Speaker 1: been in a navigable stretch of the Rio Grand River,

299
00:17:43,080 --> 00:17:46,159
Speaker 1: then yes, it might have violated federal law. But we

300
00:17:46,280 --> 00:17:49,119
Speaker 1: think that when there's a trial on this, we're going

301
00:17:49,200 --> 00:17:51,479
Speaker 1: to find that the federal government is not likely to

302
00:17:51,560 --> 00:17:54,760
Speaker 1: prove that the barriers are placed in the navigable stretch

303
00:17:54,800 --> 00:17:57,560
Speaker 1: of the Rio grand and hence there's no violation of

304
00:17:58,320 --> 00:18:01,120
Speaker 1: the federal law here. Now we're going to go back

305
00:18:01,160 --> 00:18:03,639
Speaker 1: to the trial and we're going to try to figure

306
00:18:03,680 --> 00:18:06,720
Speaker 1: out who wins on the issue of whether these buoys

307
00:18:07,080 --> 00:18:10,480
Speaker 1: are actually in navigable waters along the Rio Grande.

308
00:18:11,040 --> 00:18:14,400
Speaker 2: There was a hearing and the lawyer for Texas appeared

309
00:18:14,400 --> 00:18:18,199
Speaker 2: by videos, and the judge demanded that Texas send a

310
00:18:18,280 --> 00:18:21,160
Speaker 2: high ranking lawyer in person to the hearing and not

311
00:18:21,480 --> 00:18:24,479
Speaker 2: try to attend remotely. Quote it is clear to this

312
00:18:24,600 --> 00:18:28,720
Speaker 2: court that the State of Texas misunderstands the substance of

313
00:18:28,760 --> 00:18:32,320
Speaker 2: the status conference held in this matter. I mean, does

314
00:18:32,320 --> 00:18:35,120
Speaker 2: it really make a difference if a lawyer appears by

315
00:18:35,520 --> 00:18:37,040
Speaker 2: Zoom for hearings.

316
00:18:37,760 --> 00:18:39,640
Speaker 1: I think that at the end of the day, the

317
00:18:39,680 --> 00:18:43,720
Speaker 1: problem is they want this case to be dealt with

318
00:18:44,119 --> 00:18:48,200
Speaker 1: in the level of seriousness that this case portends to be.

319
00:18:48,880 --> 00:18:52,440
Speaker 1: And so when you're coming in on Zoom, you're essentially

320
00:18:52,520 --> 00:18:55,960
Speaker 1: saying that the State of Texas isn't really willing to

321
00:18:56,040 --> 00:18:59,560
Speaker 1: devote the resources to this case that are necessary, which

322
00:18:59,560 --> 00:19:02,359
Speaker 1: is then well, why are you filing this lawsuit? Then?

323
00:19:02,800 --> 00:19:05,000
Speaker 1: So I guess that's the perspective. I mean, at the

324
00:19:05,040 --> 00:19:08,000
Speaker 1: end of the day, everybody can have a different take

325
00:19:08,040 --> 00:19:10,240
Speaker 1: on this. I mean, obviously you don't want the trial

326
00:19:10,359 --> 00:19:13,240
Speaker 1: to be done by Zoom, but you know, it does

327
00:19:13,320 --> 00:19:15,440
Speaker 1: pose an interesting question at the end of the day

328
00:19:15,480 --> 00:19:19,439
Speaker 1: about where we're going as a legal profession, and is

329
00:19:19,520 --> 00:19:23,359
Speaker 1: Zoom going to just be inexorably part of this going

330
00:19:23,400 --> 00:19:26,919
Speaker 1: forward or do we revert back to where we were originally,

331
00:19:27,000 --> 00:19:29,480
Speaker 1: which is, hey, look, when you have court hearings, you

332
00:19:29,520 --> 00:19:31,760
Speaker 1: go to court. That's the whole point of court. It

333
00:19:31,840 --> 00:19:33,800
Speaker 1: is you go to court, and if you don't want

334
00:19:33,800 --> 00:19:36,159
Speaker 1: to go to court, don't have a case here, And

335
00:19:36,240 --> 00:19:38,080
Speaker 1: so it's an interesting question.

336
00:19:39,000 --> 00:19:41,040
Speaker 2: Well, we'll see what happens. I assume that the state

337
00:19:41,080 --> 00:19:44,200
Speaker 2: of Texas will send a high ranking lawyer as the

338
00:19:44,320 --> 00:19:47,879
Speaker 2: judge requested. And looking at the big picture here, leon,

339
00:19:48,359 --> 00:19:53,560
Speaker 2: does Kamala Harris have the same view on immigration that

340
00:19:53,880 --> 00:19:54,640
Speaker 2: Biden does?

341
00:19:55,240 --> 00:19:58,360
Speaker 1: Well, I do know, because I've actually been in conversations

342
00:19:58,400 --> 00:20:01,600
Speaker 1: with some folks in that group that they are looking

343
00:20:01,720 --> 00:20:04,600
Speaker 1: to create some policies that they are going to be

344
00:20:04,720 --> 00:20:08,080
Speaker 1: rolling out during the campaign that will be sort of

345
00:20:08,200 --> 00:20:12,840
Speaker 1: prospective twenty twenty five through twenty twenty eight policies. I

346
00:20:12,880 --> 00:20:15,760
Speaker 1: don't know which ones of the ideas that they were

347
00:20:15,760 --> 00:20:19,239
Speaker 1: soliciting they're going to actually move forward for, but I

348
00:20:19,320 --> 00:20:21,920
Speaker 1: can I guess maybe break some news I don't know

349
00:20:22,280 --> 00:20:24,439
Speaker 1: whatever you would call this, that they are planning a

350
00:20:24,560 --> 00:20:28,360
Speaker 1: rollout of a twenty twenty five through twenty twenty eight

351
00:20:28,359 --> 00:20:32,280
Speaker 1: immigration agenda that would have different policies in it, both

352
00:20:32,600 --> 00:20:36,119
Speaker 1: on the enforcement side and on what they will do

353
00:20:36,200 --> 00:20:39,320
Speaker 1: about people coming in the country, So both kinds of things,

354
00:20:39,359 --> 00:20:43,520
Speaker 1: how they add to the enforcement platform and how they

355
00:20:44,040 --> 00:20:47,720
Speaker 1: change the current platforms by which people come in here

356
00:20:47,920 --> 00:20:52,560
Speaker 1: legally and receive benefits. And so from that perspective, they

357
00:20:52,600 --> 00:20:54,840
Speaker 1: will be rolling that out, but I don't know when,

358
00:20:54,920 --> 00:20:58,159
Speaker 1: and I don't know which policies specifically of the ones

359
00:20:58,560 --> 00:21:01,440
Speaker 1: that were being discussed are they going to pick to

360
00:21:02,000 --> 00:21:03,800
Speaker 1: do that. But yet they will plan that.

361
00:21:04,200 --> 00:21:09,320
Speaker 2: Republicans are calling Harris the failed borders are. Do you

362
00:21:09,359 --> 00:21:13,119
Speaker 2: think she got a bad rap over her handling of immigration?

363
00:21:13,880 --> 00:21:17,280
Speaker 1: Well, so this is a tough question because the assignment

364
00:21:18,160 --> 00:21:21,920
Speaker 1: was not clear that was given to her, and quite frankly,

365
00:21:22,000 --> 00:21:25,000
Speaker 1: the assignment was a little bit strange always in my view,

366
00:21:25,080 --> 00:21:28,639
Speaker 1: from the first place, which was she was supposed to

367
00:21:28,800 --> 00:21:33,600
Speaker 1: solve the quote unquote root causes of why people from

368
00:21:33,880 --> 00:21:38,320
Speaker 1: specifically Alsavador, Honduras, and Guatemala want to come to the

369
00:21:38,440 --> 00:21:41,439
Speaker 1: United States. So that was technically her assignment. You know,

370
00:21:41,520 --> 00:21:45,320
Speaker 1: there's this words borders are and these other things, and

371
00:21:45,400 --> 00:21:48,360
Speaker 1: there was always a dispute about the wording. But even

372
00:21:48,480 --> 00:21:52,040
Speaker 1: the assignment as it is cast in a like most

373
00:21:52,119 --> 00:21:55,479
Speaker 1: favorably to her, didn't seem to make a lot of

374
00:21:55,520 --> 00:21:59,880
Speaker 1: sense to me from the perspective of you know, the GDPs,

375
00:22:00,160 --> 00:22:04,240
Speaker 1: those three countries are much much lower than even the

376
00:22:04,320 --> 00:22:08,800
Speaker 1: GDP in Mexico, much less the GDP in the United States,

377
00:22:09,200 --> 00:22:12,080
Speaker 1: And so to ever get to a point where anyone

378
00:22:12,119 --> 00:22:16,280
Speaker 1: in any of those countries would view remaining there as

379
00:22:16,320 --> 00:22:19,280
Speaker 1: a suitable alternative rather than coming to the US, it's

380
00:22:19,359 --> 00:22:22,840
Speaker 1: just not realistic. That would have taken hundreds of billions

381
00:22:22,840 --> 00:22:27,320
Speaker 1: of dollars of investment. But having said that, what can

382
00:22:27,359 --> 00:22:31,359
Speaker 1: be argued, and it's not clear you know which part

383
00:22:31,400 --> 00:22:34,919
Speaker 1: of who did what caused it, is that the numbers

384
00:22:35,000 --> 00:22:38,800
Speaker 1: from those three countries coming across the border are now

385
00:22:38,960 --> 00:22:42,439
Speaker 1: lower than they have been, so that part is good.

386
00:22:42,760 --> 00:22:46,639
Speaker 1: And where the problems exist are in countries we can't

387
00:22:46,680 --> 00:22:52,160
Speaker 1: deport people back to, which are Cuba, eighty, Nicaragua, Venezuela.

388
00:22:52,320 --> 00:22:55,160
Speaker 1: Those are where the numbers continue to be challenging because

389
00:22:55,200 --> 00:22:58,160
Speaker 1: those countries do not accept people who're trying to deport

390
00:22:58,240 --> 00:23:02,800
Speaker 1: them back to. But the numbers coming in at the

391
00:23:02,840 --> 00:23:08,320
Speaker 1: moment from El Salvador, Guatemala, and Honduras are indeed lower

392
00:23:08,320 --> 00:23:12,000
Speaker 1: than they were when he was first appointed to address

393
00:23:12,080 --> 00:23:16,040
Speaker 1: issues related to those countries, So at LEAs from that perspective,

394
00:23:16,760 --> 00:23:20,720
Speaker 1: there's that one could argue the numbers are lower. You

395
00:23:20,880 --> 00:23:23,479
Speaker 1: decide whether he made them lower or not.

396
00:23:23,960 --> 00:23:26,240
Speaker 2: We are going to hear a lot of talk about

397
00:23:26,240 --> 00:23:30,239
Speaker 2: this until November. Thanks so much, Leon, As always, it's

398
00:23:30,240 --> 00:23:33,000
Speaker 2: a pleasure to have you on. That's Leon Fresco, a

399
00:23:33,080 --> 00:23:35,840
Speaker 2: partner at Hollanden Knight. Coming up next on the Bloomberg

400
00:23:35,920 --> 00:23:38,760
Speaker 2: Lawn Show, we'll take a look at which circuit courts

401
00:23:38,840 --> 00:23:42,480
Speaker 2: could be in play depending on who wins the presidency

402
00:23:42,920 --> 00:23:44,879
Speaker 2: and some of the issues that will be coming up

403
00:23:44,960 --> 00:23:48,160
Speaker 2: at the Supreme Court next term. You're listening to Bloomberg.

404
00:23:49,080 --> 00:23:53,200
Speaker 2: As we've learned by now, the presidential election will determine

405
00:23:53,280 --> 00:23:57,679
Speaker 2: who sits on federal courts, and if either political party wins,

406
00:23:57,680 --> 00:24:01,280
Speaker 2: both the White House and the Senate, key appellate courts

407
00:24:01,440 --> 00:24:04,840
Speaker 2: could flip. Joining me to discuss which circuits are in

408
00:24:04,920 --> 00:24:10,640
Speaker 2: play is Matthew Shettenhelm, Bloomberg intelligence litigation analyst. So, Matt,

409
00:24:10,720 --> 00:24:16,000
Speaker 2: tell us right now, which circuits tilt Republican, which tilt democratic?

410
00:24:16,520 --> 00:24:20,240
Speaker 3: So right now, there's one circuit. If you're talking about

411
00:24:20,240 --> 00:24:24,680
Speaker 3: non senior judges. The first circuit is all Democrat judges,

412
00:24:24,720 --> 00:24:28,960
Speaker 3: six Democrat appointed judges and zero Republican appointed judges. But

413
00:24:29,119 --> 00:24:32,520
Speaker 3: it very much is the exception. A number of courts

414
00:24:32,520 --> 00:24:36,040
Speaker 3: are are fairly evenly split. But then on the other

415
00:24:36,160 --> 00:24:41,399
Speaker 3: extreme you have the Fifth Circuit, which has twelve Republican

416
00:24:41,440 --> 00:24:45,760
Speaker 3: appointed judges and five Democrat appointed judges, and the eighth Circuit,

417
00:24:45,800 --> 00:24:49,800
Speaker 3: which has ten Republican appointed judges and just one Democrat

418
00:24:49,880 --> 00:24:54,440
Speaker 3: appointed judge. And so those two circuits have really loomed

419
00:24:54,880 --> 00:24:59,440
Speaker 3: large in recent litigation about regulation. Companies have been really

420
00:24:59,440 --> 00:25:04,080
Speaker 3: successful in getting cases placed in those circuits, the fifth

421
00:25:04,080 --> 00:25:07,320
Speaker 3: and A's circuits, and so to me, though standout is

422
00:25:07,359 --> 00:25:12,160
Speaker 3: particularly significant in the election in terms of potential changes

423
00:25:12,200 --> 00:25:13,320
Speaker 3: to the courts going forward.

424
00:25:13,760 --> 00:25:18,040
Speaker 2: The term is flip, so which circuits might flip from

425
00:25:18,200 --> 00:25:21,000
Speaker 2: Democratic to Republican if Trump wins.

426
00:25:21,560 --> 00:25:24,480
Speaker 3: So it's like the Second Circuit, the Third Circuit, the

427
00:25:24,600 --> 00:25:27,840
Speaker 3: Fourth Circuit, the seventh Circuit, the tenth, the eleventh Circuit,

428
00:25:27,920 --> 00:25:31,920
Speaker 3: all of those circuit courts the margin is two judges.

429
00:25:32,040 --> 00:25:35,200
Speaker 3: And when you're looking at appointed by Democrats or appointed

430
00:25:35,240 --> 00:25:38,640
Speaker 3: by Republicans. So aside from those courts that I mentioned

431
00:25:38,880 --> 00:25:42,760
Speaker 3: earlier that are tilted in one direction, a number of

432
00:25:42,760 --> 00:25:46,800
Speaker 3: our federal courts of appeals are fairly evenly split. I

433
00:25:46,880 --> 00:25:50,840
Speaker 3: think most of them tilt Republican right now, but the

434
00:25:50,880 --> 00:25:55,280
Speaker 3: margin is small, and so the stakes are really high

435
00:25:55,320 --> 00:25:58,800
Speaker 3: for the next president because there's the potential to turn

436
00:25:58,840 --> 00:26:01,159
Speaker 3: the majority on a number of those courts. And that

437
00:26:01,200 --> 00:26:05,480
Speaker 3: matters because every Court of Appeals decision could potentially be

438
00:26:05,600 --> 00:26:10,280
Speaker 3: petitioned for rehearing by the full panel of judges at

439
00:26:10,280 --> 00:26:13,520
Speaker 3: that court on bank and so control of the court

440
00:26:14,160 --> 00:26:15,000
Speaker 3: is significant.

441
00:26:15,320 --> 00:26:17,560
Speaker 2: Yeah, I think people don't pay enough attention to the

442
00:26:17,600 --> 00:26:20,399
Speaker 2: circuit courts. They always talk about the Supreme Court, but

443
00:26:20,440 --> 00:26:24,400
Speaker 2: the Supreme Court here is only about sixty cases a term,

444
00:26:24,480 --> 00:26:27,000
Speaker 2: and it's less and less as time goes on. So

445
00:26:27,440 --> 00:26:30,840
Speaker 2: so major decisions are really made in these circuit courts,

446
00:26:31,640 --> 00:26:35,399
Speaker 2: right has the Second Circuit, which is in New York,

447
00:26:36,080 --> 00:26:37,800
Speaker 2: has that ever tilted Republican?

448
00:26:38,160 --> 00:26:41,480
Speaker 3: That goes past my knowledge. I don't know the whole

449
00:26:41,560 --> 00:26:43,560
Speaker 3: history of it right now, but yet that is on

450
00:26:43,600 --> 00:26:47,879
Speaker 3: the list of you know, one judge separating the two party,

451
00:26:48,000 --> 00:26:53,399
Speaker 3: seven judges nominated by Democrats, six nominated by Republicans. So

452
00:26:53,440 --> 00:26:57,440
Speaker 3: the margin's really really thin right there. And so that's

453
00:26:57,640 --> 00:27:00,320
Speaker 3: the sort of example where you could see a change

454
00:27:00,359 --> 00:27:03,800
Speaker 3: going forward based on the results of who wins the

455
00:27:03,800 --> 00:27:06,920
Speaker 3: presidency who wins control of the Senate, and that court is.

456
00:27:07,000 --> 00:27:10,840
Speaker 2: Very important as far as business cases in Wall Street.

457
00:27:11,200 --> 00:27:15,840
Speaker 3: Absolutely, yes, absolutely, a number of business cases are decided

458
00:27:15,880 --> 00:27:16,440
Speaker 3: in that court.

459
00:27:16,680 --> 00:27:19,119
Speaker 2: This was a year that we saw the Supreme Court

460
00:27:19,400 --> 00:27:24,240
Speaker 2: basically attack the administrative state a lot of decisions on regulation.

461
00:27:24,560 --> 00:27:27,480
Speaker 2: And do you see more of that continuing next year?

462
00:27:27,480 --> 00:27:29,200
Speaker 2: Are they going to switch to something else?

463
00:27:29,600 --> 00:27:34,080
Speaker 3: Yes, It's unlikely that the conservative majority at the Court

464
00:27:34,200 --> 00:27:36,359
Speaker 3: is going to change in the next four years. Right now,

465
00:27:36,400 --> 00:27:39,480
Speaker 3: we have a six to three majority of justices that

466
00:27:39,520 --> 00:27:43,080
Speaker 3: were appointed by Republican presidents, and as you said, they

467
00:27:43,160 --> 00:27:49,720
Speaker 3: have really been aggressive in sort of pro business decisions,

468
00:27:50,040 --> 00:27:54,800
Speaker 3: very skeptical of regulatory overreach, and I really don't think

469
00:27:54,880 --> 00:27:57,800
Speaker 3: that's going to change. I guess in one sense there's

470
00:27:58,000 --> 00:28:01,800
Speaker 3: a chance for slight changes. And the two oldest justices

471
00:28:02,240 --> 00:28:06,600
Speaker 3: at the Supreme Court, Justice Clarence Thomas and Justice Samuel Alito,

472
00:28:06,680 --> 00:28:10,600
Speaker 3: are two Republican appointed justices who are very skeptical of

473
00:28:11,080 --> 00:28:15,480
Speaker 3: regulatory overreach, have supported the decisions on do the Chevron doctrine,

474
00:28:15,560 --> 00:28:18,280
Speaker 3: for example. They are the two oldest and so I

475
00:28:18,359 --> 00:28:21,439
Speaker 3: think both parties would be interested in replacing them. A

476
00:28:21,480 --> 00:28:26,200
Speaker 3: Republican president with younger versions of themselves, a Democrat president

477
00:28:26,440 --> 00:28:29,960
Speaker 3: with very different justices. But even if you did replace

478
00:28:30,080 --> 00:28:33,359
Speaker 3: those by a Democrat president, still a six to three margin.

479
00:28:33,440 --> 00:28:36,040
Speaker 3: So I think you're not going to see the trend

480
00:28:36,080 --> 00:28:40,000
Speaker 3: in the court's overall change. It's at least pretty unlikely

481
00:28:40,560 --> 00:28:41,720
Speaker 3: over the next four years.

482
00:28:42,160 --> 00:28:46,800
Speaker 2: There are several key disputes involving the financial sector that

483
00:28:47,080 --> 00:28:48,720
Speaker 2: may reach the Supreme Court.

484
00:28:48,880 --> 00:28:53,840
Speaker 3: Yes, my colleague Elliott Stein has really highlighted these cases.

485
00:28:54,000 --> 00:28:57,880
Speaker 3: Cases involving coinbase have been percolating through the lower courts,

486
00:28:58,480 --> 00:29:02,240
Speaker 3: a case involving CFPB credit card late fees. There is

487
00:29:02,280 --> 00:29:05,960
Speaker 3: the potential for a number of regulatory cases to reach

488
00:29:06,000 --> 00:29:06,719
Speaker 3: the High Court.

489
00:29:06,880 --> 00:29:09,520
Speaker 2: Do you see many tech cases going to the Supreme Court?

490
00:29:09,840 --> 00:29:10,080
Speaker 1: Yeah?

491
00:29:10,120 --> 00:29:12,480
Speaker 3: I mean, we just came off a term where the

492
00:29:12,520 --> 00:29:16,600
Speaker 3: Supreme Court decided a pretty significant First Amendment case about

493
00:29:16,600 --> 00:29:21,480
Speaker 3: whether Texas and Florida can force social media platforms to

494
00:29:21,560 --> 00:29:25,760
Speaker 3: be neutral. And the Court said no, that the First

495
00:29:25,760 --> 00:29:29,960
Speaker 3: Amendment does give these companies some rights to block regulation

496
00:29:30,120 --> 00:29:33,520
Speaker 3: like that, But the Court said very little about exactly

497
00:29:33,600 --> 00:29:37,600
Speaker 3: how and how broadly the First Amendment blocks regulation. And

498
00:29:37,640 --> 00:29:40,959
Speaker 3: this is a huge question right now as the federal

499
00:29:41,000 --> 00:29:44,000
Speaker 3: government is looking at regulating tech companies as states are

500
00:29:44,000 --> 00:29:46,560
Speaker 3: looking at doing it, and the companies are responding saying no,

501
00:29:46,640 --> 00:29:48,280
Speaker 3: the First Amendment blocks.

502
00:29:47,880 --> 00:29:48,400
Speaker 1: All of that.

503
00:29:48,840 --> 00:29:51,560
Speaker 3: The question is is that really right? And this is

504
00:29:51,560 --> 00:29:55,000
Speaker 3: a question the Supreme Court didn't quite answer this term.

505
00:29:55,200 --> 00:29:57,640
Speaker 3: It started to answer it, But there are so many

506
00:29:57,760 --> 00:30:00,800
Speaker 3: unanswered questions about how far the first Moment goes, how

507
00:30:00,880 --> 00:30:03,920
Speaker 3: much regulation is okay? And it's going to be our

508
00:30:03,960 --> 00:30:07,760
Speaker 3: Supreme Court in the next four years that answers those

509
00:30:07,840 --> 00:30:12,960
Speaker 3: questions and resolves how far can regulators go in addressing

510
00:30:13,280 --> 00:30:15,160
Speaker 3: harms that are linked to the Internet.

511
00:30:15,520 --> 00:30:18,480
Speaker 2: What about chech media and telecom regulation?

512
00:30:19,200 --> 00:30:22,440
Speaker 3: Yeah, so, I mean that's another area where I think

513
00:30:22,520 --> 00:30:25,920
Speaker 3: the FCC there's been a fight for the past twenty

514
00:30:26,000 --> 00:30:30,080
Speaker 3: years about can the FCC regulate broadband service or not?

515
00:30:30,640 --> 00:30:33,640
Speaker 3: This is the most important products that AT and T

516
00:30:33,960 --> 00:30:38,040
Speaker 3: and Comcast and Verizon Charter they offer today. Is that

517
00:30:38,120 --> 00:30:41,840
Speaker 3: subject to federal regulation at all? And I think with

518
00:30:42,040 --> 00:30:45,800
Speaker 3: this Supreme Court, you saw the Chevron decision earlier and

519
00:30:45,920 --> 00:30:49,000
Speaker 3: just building on that, it's going to be so difficult,

520
00:30:49,200 --> 00:30:54,520
Speaker 3: I think for companies to be regulated in ways that

521
00:30:54,640 --> 00:30:59,240
Speaker 3: Congress hasn't clearly said are appropriate. The broadband companies are

522
00:30:59,280 --> 00:31:02,240
Speaker 3: a great again example of that. And so as long

523
00:31:02,320 --> 00:31:05,719
Speaker 3: as the control of the Supreme Court remains as it

524
00:31:05,840 --> 00:31:09,640
Speaker 3: is with a six to three very business friendly majority,

525
00:31:09,880 --> 00:31:13,720
Speaker 3: I think it's very good news for companies like these

526
00:31:13,760 --> 00:31:18,560
Speaker 3: broadband companies that could otherwise face substantial federal regulation. It's

527
00:31:18,680 --> 00:31:21,480
Speaker 3: just not going to happen with this Supreme Court in place.

528
00:31:21,600 --> 00:31:25,440
Speaker 3: Unless Congress stepped in and Congress really struggles to reach

529
00:31:25,480 --> 00:31:28,360
Speaker 3: consensus on any sort of aggressive regulation like this.

530
00:31:28,560 --> 00:31:32,480
Speaker 2: Would there be a big difference if Republicans take control

531
00:31:32,560 --> 00:31:33,880
Speaker 2: of the FCC.

532
00:31:34,640 --> 00:31:36,880
Speaker 3: I think that would sort of just speed up what

533
00:31:36,920 --> 00:31:39,920
Speaker 3: the courts are already doing. So, you know, to take

534
00:31:39,960 --> 00:31:43,479
Speaker 3: the net neutrality of rules for example, that the Biden

535
00:31:43,640 --> 00:31:49,080
Speaker 3: FCC has tried to restore broadband regulation. Aggressive federal broadband

536
00:31:49,120 --> 00:31:52,080
Speaker 3: regulation that's in the courts right now. In the Sixth

537
00:31:52,120 --> 00:31:55,320
Speaker 3: Circuit is one of those conservative leaning courts. I think

538
00:31:55,360 --> 00:31:57,800
Speaker 3: it's going to face a lot of trouble getting through

539
00:31:57,840 --> 00:32:00,360
Speaker 3: the Sixth Circuit and then you know, probably the US

540
00:32:00,400 --> 00:32:04,040
Speaker 3: Supreme Court. But if the Republicans win the White House

541
00:32:04,360 --> 00:32:07,560
Speaker 3: and thus control of the FCC, they'll just undo it themselves.

542
00:32:07,560 --> 00:32:09,360
Speaker 3: They don't even have to wait for the courts, and

543
00:32:09,400 --> 00:32:12,520
Speaker 3: so it's just another way that businesses that are concerned

544
00:32:12,520 --> 00:32:15,040
Speaker 3: about regulation can benefit in the near term. I think

545
00:32:15,160 --> 00:32:17,840
Speaker 3: if they don't win in the courts, a Republican controlled

546
00:32:17,840 --> 00:32:20,640
Speaker 3: the FCC will usher in the win itself.

547
00:32:21,040 --> 00:32:24,560
Speaker 2: Let's talk about TikTok because I think it's so interesting

548
00:32:24,960 --> 00:32:28,760
Speaker 2: because of the difference that it might see between a

549
00:32:28,920 --> 00:32:32,600
Speaker 2: democratic and a Republican president. So, first of all, explain

550
00:32:33,040 --> 00:32:36,680
Speaker 2: where we stand with TikTok, the bill that Biden signed.

551
00:32:36,880 --> 00:32:40,720
Speaker 3: Yeah, absolutely so. Earlier this year, both chambers of Congress

552
00:32:40,720 --> 00:32:45,120
Speaker 3: passed a law that effectively bans TikTok as of January

553
00:32:45,200 --> 00:32:48,720
Speaker 3: nineteenth next year, unless the company divests to someone else,

554
00:32:48,720 --> 00:32:50,440
Speaker 3: and the companies saying, look, we're not going to do that,

555
00:32:50,560 --> 00:32:52,720
Speaker 3: and there's no way we can practically do that. So

556
00:32:53,240 --> 00:32:57,480
Speaker 3: the only way that TikTok remains viable in the United

557
00:32:57,480 --> 00:33:01,400
Speaker 3: States after January nineteenth is if Tiko wins this court

558
00:33:01,480 --> 00:33:05,080
Speaker 3: case it's brought to challenge the law, and TikTok says

559
00:33:05,080 --> 00:33:08,560
Speaker 3: that it's a violation of the First Amendments what Congress

560
00:33:08,600 --> 00:33:11,160
Speaker 3: did to force it to divest the company, and we're

561
00:33:11,160 --> 00:33:14,040
Speaker 3: going to get a decision this year from the DC

562
00:33:14,160 --> 00:33:16,960
Speaker 3: Circuit and maybe from the US Supreme Court on whether

563
00:33:17,200 --> 00:33:21,520
Speaker 3: TikTok's right or whether Congress can ban the company unless

564
00:33:21,520 --> 00:33:23,560
Speaker 3: it divests former President Trump.

565
00:33:23,720 --> 00:33:27,080
Speaker 2: He was against TikTok when he was president, now he's

566
00:33:27,440 --> 00:33:32,960
Speaker 2: for TikTok. What kind of change could his becoming president

567
00:33:33,240 --> 00:33:36,400
Speaker 2: mean for TikTok outside of the court case.

568
00:33:36,600 --> 00:33:39,960
Speaker 3: Yeah, it's a great question. So I think it's unlikely

569
00:33:40,400 --> 00:33:43,280
Speaker 3: that President Trump, if he wins the White House, is

570
00:33:43,680 --> 00:33:47,640
Speaker 3: going to convince Congress to make a new law and

571
00:33:47,880 --> 00:33:51,360
Speaker 3: undo the ban that it already did. So I don't

572
00:33:51,440 --> 00:33:53,880
Speaker 3: think he would change it in that sense. This law

573
00:33:53,960 --> 00:33:57,600
Speaker 3: is already on the books. It passed by overwhelming majorities

574
00:33:57,680 --> 00:34:00,520
Speaker 3: in both the House and the Senate with Republican and

575
00:34:00,680 --> 00:34:04,640
Speaker 3: Democrats support, and so this is done, I think unless

576
00:34:04,720 --> 00:34:08,360
Speaker 3: TikTok wins in court. If TikTok wins in court by

577
00:34:08,440 --> 00:34:11,120
Speaker 3: January nineteenth, and the DC Circuit or the Supreme Court

578
00:34:11,200 --> 00:34:13,399
Speaker 3: sends it back to Congress and says, no, the First

579
00:34:13,440 --> 00:34:17,560
Speaker 3: Amendment problems here, try again, that's when President Trump being

580
00:34:17,600 --> 00:34:21,640
Speaker 3: the president really matters, because then if Congress goes to

581
00:34:21,680 --> 00:34:25,000
Speaker 3: try again and fix the problems, that the courts identify,

582
00:34:25,360 --> 00:34:28,040
Speaker 3: President Trump doesn't have to sign that law, and so

583
00:34:28,200 --> 00:34:31,760
Speaker 3: that's where it could end up getting tripped up. Whereas

584
00:34:31,840 --> 00:34:34,680
Speaker 3: if it's the Democrats that control the White House. President

585
00:34:34,680 --> 00:34:38,239
Speaker 3: Biden was a strong advocate for this TikTok bill, and

586
00:34:38,320 --> 00:34:41,399
Speaker 3: it seems very likely that a President Kamala Harris would

587
00:34:41,440 --> 00:34:43,480
Speaker 3: be as well. I at least have no reason to

588
00:34:43,520 --> 00:34:46,480
Speaker 3: think she would depart from President Biden's view on this.

589
00:34:46,719 --> 00:34:50,000
Speaker 3: So in that sense, if TikTok can win this first

590
00:34:50,080 --> 00:34:53,080
Speaker 3: round of the case, having President Trump in the white House,

591
00:34:53,320 --> 00:34:56,200
Speaker 3: maybe it's best chance to avoid a band in the

592
00:34:56,239 --> 00:34:57,080
Speaker 3: US going forward.

593
00:34:57,360 --> 00:35:01,080
Speaker 2: It seems like TikTok has some pretty good arguments in

594
00:35:01,120 --> 00:35:04,040
Speaker 2: its case. Have you looked at who has the better

595
00:35:04,080 --> 00:35:05,040
Speaker 2: side of that case?

596
00:35:05,160 --> 00:35:08,640
Speaker 3: Yeah, it's a really fascinating case, and I think it's

597
00:35:08,680 --> 00:35:12,239
Speaker 3: a really close case. TikTok says, Look, Congress has never

598
00:35:12,320 --> 00:35:16,040
Speaker 3: done anything like this, spanning a popular app used by

599
00:35:16,080 --> 00:35:19,759
Speaker 3: one hundred and fifty million Americans. So this is a

600
00:35:19,840 --> 00:35:23,359
Speaker 3: violation of our free speech rights as a company, It's

601
00:35:23,400 --> 00:35:26,000
Speaker 3: a violation of the free speech rights of all the

602
00:35:26,160 --> 00:35:30,040
Speaker 3: users on our platform. And basically arguing that the Congress

603
00:35:30,160 --> 00:35:33,560
Speaker 3: burdened much more speech than was necessary. It could have

604
00:35:33,640 --> 00:35:38,480
Speaker 3: done something much less disruptive than an effective ban. It

605
00:35:38,520 --> 00:35:42,000
Speaker 3: could have regulated, it could have entered into an agreement

606
00:35:42,200 --> 00:35:45,160
Speaker 3: with TikTok to mitigate the risk, but instead it took

607
00:35:45,280 --> 00:35:48,520
Speaker 3: sort of what the company casts as a very extreme step.

608
00:35:48,640 --> 00:35:50,719
Speaker 3: On the other side, that the government comes back and says, no,

609
00:35:50,920 --> 00:35:54,960
Speaker 3: this is a national security threat. TikTok's parent is located

610
00:35:55,040 --> 00:35:59,000
Speaker 3: in China, and China can access anything from a company

611
00:35:59,000 --> 00:36:02,440
Speaker 3: that's that's located, and this company has all sorts of

612
00:36:02,520 --> 00:36:06,280
Speaker 3: data about Americans, and it can control what Americans can see.

613
00:36:06,440 --> 00:36:08,799
Speaker 3: That's a national security threat. Courts don't like to get

614
00:36:08,840 --> 00:36:11,560
Speaker 3: in the middle of national security issues, so both sides

615
00:36:11,600 --> 00:36:14,839
Speaker 3: have really strong argument. My take on it is that

616
00:36:15,280 --> 00:36:18,279
Speaker 3: I think the courts are going to force Congress to

617
00:36:18,320 --> 00:36:20,239
Speaker 3: try again on this. I think they're going to say, look,

618
00:36:20,239 --> 00:36:22,440
Speaker 3: you went pretty fast on this, and I think you

619
00:36:22,440 --> 00:36:25,000
Speaker 3: should take a harder look to make sure you didn't

620
00:36:25,040 --> 00:36:29,240
Speaker 3: burden more speech than necessary. Ultimately, I think the government

621
00:36:29,239 --> 00:36:31,520
Speaker 3: can win this case, but I think the courts are

622
00:36:31,520 --> 00:36:33,560
Speaker 3: going to want to go a little more slowly here.

623
00:36:33,640 --> 00:36:36,360
Speaker 3: Even though it's a national security threat. The government admitted

624
00:36:36,520 --> 00:36:39,719
Speaker 3: in its brief that there isn't evidence that China has

625
00:36:39,840 --> 00:36:44,720
Speaker 3: actually surveiled this data or manipulated but there's a risk,

626
00:36:44,880 --> 00:36:47,759
Speaker 3: and so I think that creates an opportunity for the

627
00:36:47,760 --> 00:36:50,040
Speaker 3: court to kind of slow this down a little bit

628
00:36:50,480 --> 00:36:52,880
Speaker 3: and make sure the First Amendment is honored. But I

629
00:36:52,880 --> 00:36:54,920
Speaker 3: think ultimately the government can win this. I think there

630
00:36:54,920 --> 00:36:57,759
Speaker 3: are real risks to TikTok going forward. I just think

631
00:36:57,760 --> 00:36:59,800
Speaker 3: it might win this first round of the case and

632
00:37:00,120 --> 00:37:03,200
Speaker 3: duck this January nineteenth deadline that's coming pretty quickly.

633
00:37:03,239 --> 00:37:06,120
Speaker 2: Now, a lot to watch in the upcoming months. Thanks

634
00:37:06,160 --> 00:37:11,080
Speaker 2: so much, Matt. That's Bloomberg Intelligence Litigation analyst Matthew Shettenhelm.

635
00:37:11,480 --> 00:37:14,120
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.

636
00:37:14,480 --> 00:37:16,839
Speaker 2: Remember you can always get the latest legal news by

637
00:37:16,880 --> 00:37:20,719
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

638
00:37:21,000 --> 00:37:24,839
Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law. I'm

639
00:37:24,920 --> 00:37:27,360
Speaker 2: June Grosso, and this is Bloomberg