1
00:00:02,880 --> 00:00:10,559
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

2
00:00:13,480 --> 00:00:16,920
Speaker 2: There were demonstrations in more than a dozen major cities

3
00:00:17,079 --> 00:00:22,400
Speaker 2: across the country this week over the Trump administration's immigration crackdown,

4
00:00:22,640 --> 00:00:27,360
Speaker 2: as ICE conducts high profile workplace raids. In response to

5
00:00:27,400 --> 00:00:31,639
Speaker 2: the protests in Los Angeles, President Trump deployed thousands of

6
00:00:31,720 --> 00:00:34,879
Speaker 2: Guard troops and hundreds of active duty Marines to the

7
00:00:34,920 --> 00:00:37,960
Speaker 2: city without the request of the state's governor.

8
00:00:38,560 --> 00:00:40,720
Speaker 3: If we weren't there, if we didn't bring in the

9
00:00:40,800 --> 00:00:44,639
Speaker 3: National and the Marines, and you would probably have a

10
00:00:44,720 --> 00:00:46,040
Speaker 3: city that was burning.

11
00:00:45,720 --> 00:00:48,239
Speaker 2: To the ground, just like it was a number of

12
00:00:48,240 --> 00:00:48,920
Speaker 2: months ago.

13
00:00:48,760 --> 00:00:49,320
Speaker 3: With the housing.

14
00:00:50,040 --> 00:00:53,840
Speaker 2: But California took Trump to court, saying his choice to

15
00:00:53,920 --> 00:00:59,600
Speaker 2: deploy the National Guard to police civilian communities is an expansive, dangerous,

16
00:00:59,640 --> 00:01:04,080
Speaker 2: concesent option of federal executive power, and on Thursday, federal

17
00:01:04,160 --> 00:01:08,479
Speaker 2: Judge Charles Pryor found that Trump's actions were illegal and

18
00:01:08,520 --> 00:01:11,880
Speaker 2: that the LA protests fell far short of the legal

19
00:01:11,959 --> 00:01:16,640
Speaker 2: requirements of a rebellion needed to justify a federal deployment.

20
00:01:17,160 --> 00:01:20,160
Speaker 2: He ordered Trump to return command of the guardsman to

21
00:01:20,240 --> 00:01:22,240
Speaker 2: California Governor Gavin Newsom.

22
00:01:22,880 --> 00:01:27,920
Speaker 4: He must work under the constraints as a constitutional officer

23
00:01:28,160 --> 00:01:31,199
Speaker 4: of the Constitution of the United States of America. That's

24
00:01:31,319 --> 00:01:34,840
Speaker 4: what this court order demands of the President of the

25
00:01:34,920 --> 00:01:37,240
Speaker 4: United States. He is not a monarch, he is not

26
00:01:37,360 --> 00:01:39,919
Speaker 4: a king, and he should stop acting like one.

27
00:01:40,120 --> 00:01:43,240
Speaker 2: But just a few hours later, a federal appeals court

28
00:01:43,400 --> 00:01:46,920
Speaker 2: temporarily blocked the judge's order, saying it will hold a

29
00:01:46,959 --> 00:01:50,200
Speaker 2: hearing on the matter on Tuesday. Joining me is immigration

30
00:01:50,320 --> 00:01:53,600
Speaker 2: law expert Leon Fresco, a partner at Holland and Knight

31
00:01:53,920 --> 00:01:56,920
Speaker 2: and the former head of the Office of Immigration Litigation

32
00:01:57,480 --> 00:01:58,800
Speaker 2: in the Obama administration.

33
00:01:59,560 --> 00:01:59,880
Speaker 5: Leon J.

34
00:02:00,080 --> 00:02:02,920
Speaker 2: Judch Charles Bryer, who by the way, is Justice Stephen

35
00:02:03,000 --> 00:02:08,240
Speaker 2: Bryer's brother, wrote this scathing opinion, finding that the president

36
00:02:08,360 --> 00:02:13,440
Speaker 2: acted illegally in deploying the troops, exceeding both his statutory

37
00:02:13,560 --> 00:02:17,840
Speaker 2: authority and violating the Tenth Amendment. Tell us how he

38
00:02:17,880 --> 00:02:19,119
Speaker 2: came to that conclusion.

39
00:02:19,600 --> 00:02:22,919
Speaker 1: So there's a couple of things. The first was that

40
00:02:23,240 --> 00:02:26,840
Speaker 1: President Trump said that he had authority under ten USC.

41
00:02:27,360 --> 00:02:31,320
Speaker 1: Section twelve four h six, which provides that the president

42
00:02:31,360 --> 00:02:34,760
Speaker 1: can call federal service members and units of the National

43
00:02:34,760 --> 00:02:38,240
Speaker 1: Guard of any state when the United States is either

44
00:02:38,320 --> 00:02:41,440
Speaker 1: invaded or is in danger of invasion, or there's a

45
00:02:41,520 --> 00:02:45,000
Speaker 1: rebellion or a danger of rebellion, or most notably, that

46
00:02:45,040 --> 00:02:49,000
Speaker 1: the president is unable with the regular forces to execute

47
00:02:49,320 --> 00:02:51,600
Speaker 1: the laws of the United States. And so that was

48
00:02:51,680 --> 00:02:56,200
Speaker 1: the real argument that was being made there, And what

49
00:02:56,480 --> 00:03:00,920
Speaker 1: Judge Briar really tried to get a grip on and

50
00:03:01,000 --> 00:03:04,560
Speaker 1: try to figure out was, there's two questions here. One,

51
00:03:05,000 --> 00:03:08,960
Speaker 1: did you violate that statue because there really wasn't any

52
00:03:09,000 --> 00:03:12,680
Speaker 1: type of rebellion or an inability to enforce the law.

53
00:03:13,240 --> 00:03:16,919
Speaker 1: But second, is there some inherent authority that the president

54
00:03:17,040 --> 00:03:22,000
Speaker 1: has that makes these kinds of questions unreviewable? Because even

55
00:03:22,080 --> 00:03:26,600
Speaker 1: if this was a dispute about the rebellion or not,

56
00:03:26,760 --> 00:03:30,040
Speaker 1: the Trump administration was saying, this is our decision, this

57
00:03:30,160 --> 00:03:33,360
Speaker 1: is committed to our discretion. It's not for the courts

58
00:03:33,400 --> 00:03:36,400
Speaker 1: to review this. And so this is where Bryer said

59
00:03:36,760 --> 00:03:39,840
Speaker 1: two different points. One, on the statue, there was no

60
00:03:39,960 --> 00:03:43,800
Speaker 1: consultation with the governor, which is required under the statue.

61
00:03:43,840 --> 00:03:47,200
Speaker 1: Congress wrote that there has to be meaningful consultation with

62
00:03:47,400 --> 00:03:52,760
Speaker 1: the governor before taking over the state's national guard. And secondly,

63
00:03:53,200 --> 00:03:57,840
Speaker 1: there wasn't this rebellion or invasion or inability.

64
00:03:57,320 --> 00:03:58,840
Speaker 6: To enforce the law.

65
00:03:59,240 --> 00:04:03,040
Speaker 1: So nothing justified the federalization.

66
00:04:02,360 --> 00:04:05,720
Speaker 6: Of the National Guards. And this is the kind of.

67
00:04:05,960 --> 00:04:11,240
Speaker 1: Determination that can be reviewed. And if you can't review

68
00:04:11,320 --> 00:04:14,920
Speaker 1: this determination, then there is no check of any kind

69
00:04:15,000 --> 00:04:18,279
Speaker 1: on the President being able to deploy the National Guard

70
00:04:18,360 --> 00:04:21,480
Speaker 1: for any purpose, at any time, for any reason. And

71
00:04:21,600 --> 00:04:25,880
Speaker 1: that's what really was animating a lot of his concerns

72
00:04:25,920 --> 00:04:29,480
Speaker 1: in the ruling during the oral arguments, and I think

73
00:04:29,560 --> 00:04:33,120
Speaker 1: that's going to be really the main question that is

74
00:04:33,200 --> 00:04:35,719
Speaker 1: grappled with both by the Ninth Circuit and by the

75
00:04:35,760 --> 00:04:40,680
Speaker 1: Supreme Court ultimately, this question of is this really unreviewable?

76
00:04:40,800 --> 00:04:44,520
Speaker 1: And if it's unreviewable, what does that mean moving forward

77
00:04:44,520 --> 00:04:48,560
Speaker 1: for giving the president authority to mobilize federal troops whatever

78
00:04:48,640 --> 00:04:49,800
Speaker 1: the presidencyes fits.

79
00:04:50,760 --> 00:04:54,200
Speaker 2: So we've talked before about the court's deferring to the

80
00:04:54,240 --> 00:04:59,680
Speaker 2: president's decisions on foreign policy and national security, but Judge

81
00:04:59,720 --> 00:05:03,560
Speaker 2: Bryant said this case involved domestic use of military force,

82
00:05:04,279 --> 00:05:06,920
Speaker 2: on which the courts can certainly weigh in. Is that

83
00:05:07,000 --> 00:05:09,480
Speaker 2: the line that he found.

84
00:05:09,279 --> 00:05:12,320
Speaker 1: To correct the limiting principle that at the end of

85
00:05:12,360 --> 00:05:16,040
Speaker 1: the day led the judge to believe this is reviewable

86
00:05:16,720 --> 00:05:19,920
Speaker 1: is the fact that if this was something that in

87
00:05:19,960 --> 00:05:24,000
Speaker 1: some way implicated foreign policy or the use of the

88
00:05:24,040 --> 00:05:30,600
Speaker 1: military to deter an actual foreign invasion happening, that might

89
00:05:30,760 --> 00:05:35,479
Speaker 1: be something where the courts have no role. But here

90
00:05:36,279 --> 00:05:41,280
Speaker 1: the fact that the fact pattern was in all four corners.

91
00:05:40,839 --> 00:05:43,040
Speaker 6: Limited to a domestic dispute.

92
00:05:43,480 --> 00:05:47,839
Speaker 1: That led the judge to say, in this instance, where

93
00:05:47,839 --> 00:05:51,640
Speaker 1: you have a federal military action in a domestic dispute,

94
00:05:52,000 --> 00:05:56,040
Speaker 1: the courts have to have an ability to analyze this

95
00:05:56,240 --> 00:06:01,760
Speaker 1: and to be able to have some constraints on presidential authority. Otherwise,

96
00:06:02,040 --> 00:06:06,039
Speaker 1: if it were to be committed to a discretion of

97
00:06:06,080 --> 00:06:09,200
Speaker 1: the president, would mean that the president could just employ

98
00:06:09,279 --> 00:06:11,919
Speaker 1: these federal troops at any time for any purpose, and

99
00:06:12,279 --> 00:06:16,479
Speaker 1: he viewed that as unacceptable under the Constitution. Now, I

100
00:06:16,520 --> 00:06:19,600
Speaker 1: think the Trump administration would make some arguments, which they've

101
00:06:19,600 --> 00:06:23,240
Speaker 1: done in is that the influx of foreign nationals.

102
00:06:22,800 --> 00:06:24,160
Speaker 6: Is itself an invasion.

103
00:06:24,560 --> 00:06:27,480
Speaker 1: But the courts, other than one judge in one of

104
00:06:27,520 --> 00:06:30,760
Speaker 1: the cases in Pennsylvania, the courts so far have not

105
00:06:31,080 --> 00:06:35,520
Speaker 1: actually characterized the influx of foreign nationals during the Biden

106
00:06:35,560 --> 00:06:38,880
Speaker 1: administration that as an actual invasion in the sense that

107
00:06:39,000 --> 00:06:42,160
Speaker 1: the folks that entered are there to overthrow the government

108
00:06:42,160 --> 00:06:43,240
Speaker 1: of the United States.

109
00:06:43,560 --> 00:06:47,279
Speaker 2: Just within hours of Briar's decision, the Trump administration went

110
00:06:47,360 --> 00:06:51,400
Speaker 2: to the Ninth Circuit and a panel of judges consisting

111
00:06:51,440 --> 00:06:55,560
Speaker 2: of two Trump appointees and one Biden appointee. But Judge

112
00:06:55,600 --> 00:06:58,200
Speaker 2: Briar's decision on hold and they're going to have a

113
00:06:58,279 --> 00:07:01,360
Speaker 2: hearing on Tuesday. How do you think the Ninth Circuit

114
00:07:01,480 --> 00:07:05,520
Speaker 2: did that when Judge Bryer had found irreparable harm to

115
00:07:05,600 --> 00:07:09,520
Speaker 2: the city and that the presence of troops in LA

116
00:07:09,760 --> 00:07:13,320
Speaker 2: was itself inflaming tensions with protesters.

117
00:07:13,920 --> 00:07:17,760
Speaker 1: Well, there was an administray to stay put until Friday

118
00:07:18,480 --> 00:07:21,679
Speaker 1: for the district Court, and so all that was really

119
00:07:21,760 --> 00:07:25,080
Speaker 1: done by the Ninth Circuit. And this was a unanimous

120
00:07:25,120 --> 00:07:27,600
Speaker 1: decision to the extent that it's a one page decision.

121
00:07:27,760 --> 00:07:31,440
Speaker 1: But nevertheless, there wasn't a dissent from this administrative stay.

122
00:07:32,040 --> 00:07:35,040
Speaker 1: Is they just basically held this in obeyance to have

123
00:07:35,120 --> 00:07:37,280
Speaker 1: a hearing on Tuesday and then they might make a

124
00:07:37,320 --> 00:07:42,800
Speaker 1: decision shortly thereafter. But I do think there is probably

125
00:07:43,400 --> 00:07:46,800
Speaker 1: some view of the events going on in the world

126
00:07:46,920 --> 00:07:50,000
Speaker 1: right now and some desired to maybe keep the status

127
00:07:50,080 --> 00:07:51,120
Speaker 1: quo for the weekend.

128
00:07:51,760 --> 00:07:53,280
Speaker 6: Just in case, with all.

129
00:07:53,080 --> 00:07:56,640
Speaker 1: The conflagrations going on everywhere, it might not necessarily be

130
00:07:56,680 --> 00:08:00,000
Speaker 1: a good thing to be having civil unrest in Los Angeles.

131
00:08:00,040 --> 00:08:03,720
Speaker 1: So I think there might be some prudential consideration there

132
00:08:03,760 --> 00:08:06,840
Speaker 1: in keeping the stay over the weekends. But you know,

133
00:08:07,120 --> 00:08:10,600
Speaker 1: hard to read minds, but I think that probably is

134
00:08:11,360 --> 00:08:12,520
Speaker 1: underlying some of this.

135
00:08:13,240 --> 00:08:17,000
Speaker 2: There are concerns that President Trump might send troops to

136
00:08:17,080 --> 00:08:23,000
Speaker 2: other cities because his June seventh Proclamation is broad and

137
00:08:23,080 --> 00:08:26,800
Speaker 2: allows troops to be sent anywhere protests are likely to occur.

138
00:08:27,400 --> 00:08:32,880
Speaker 2: Will Judge Bryar's order, if upheld on appeal, have any impact.

139
00:08:33,440 --> 00:08:38,840
Speaker 1: So the order itself certainly provides a president for other

140
00:08:39,080 --> 00:08:42,560
Speaker 1: states and other cities to actually look at this order

141
00:08:42,600 --> 00:08:46,360
Speaker 1: and say two things. One that there is court jurisdiction

142
00:08:47,200 --> 00:08:49,520
Speaker 1: in order to review this. And I think that's going

143
00:08:49,600 --> 00:08:51,959
Speaker 1: to be the key argument to the extent that that

144
00:08:52,120 --> 00:08:55,800
Speaker 1: gets to the Supreme Court is forget about interpreting the statues.

145
00:08:55,960 --> 00:09:00,520
Speaker 1: Is there actually jurisdiction to interpret the statues? And then

146
00:09:00,960 --> 00:09:03,520
Speaker 1: once you start getting to interpreting the statue, then the

147
00:09:03,559 --> 00:09:06,960
Speaker 1: administration is in a bit of a more difficult pickle here,

148
00:09:07,040 --> 00:09:09,960
Speaker 1: because then you have to decide is there a rebellion,

149
00:09:10,080 --> 00:09:11,079
Speaker 1: is there an invasion?

150
00:09:11,679 --> 00:09:14,280
Speaker 6: Is there an inability to enforce the law?

151
00:09:14,800 --> 00:09:18,520
Speaker 1: And there at the moment, the factual record on that

152
00:09:18,679 --> 00:09:22,120
Speaker 1: is not as full sum for the administration as they

153
00:09:22,240 --> 00:09:25,760
Speaker 1: might want going into court, and so they would definitely

154
00:09:25,840 --> 00:09:28,280
Speaker 1: need more than what happened in Los Angeles to be

155
00:09:28,320 --> 00:09:31,720
Speaker 1: able to deploy the National Guard in the military, especially

156
00:09:32,120 --> 00:09:36,040
Speaker 1: to enforce ice operations. But they might not need anything

157
00:09:36,080 --> 00:09:39,080
Speaker 1: at all if the Supreme Court ends up saying that

158
00:09:39,200 --> 00:09:42,840
Speaker 1: this isn't something that's reviewable. But I think every court's

159
00:09:42,880 --> 00:09:45,679
Speaker 1: going to have the same struggle that just Briar ed,

160
00:09:46,120 --> 00:09:49,320
Speaker 1: which is it makes sense in one sense to defer

161
00:09:49,440 --> 00:09:52,840
Speaker 1: to the administration because these are very serious questions, These

162
00:09:52,880 --> 00:09:54,400
Speaker 1: are very difficult issues.

163
00:09:54,760 --> 00:09:56,440
Speaker 6: But if you have complete.

164
00:09:56,080 --> 00:10:00,559
Speaker 1: Deference, what is to stop a very arbitraryan a precious

165
00:10:00,559 --> 00:10:02,880
Speaker 1: application of this for pretty much any reason.

166
00:10:03,440 --> 00:10:05,719
Speaker 6: And so that's where this gets complicated.

167
00:10:06,240 --> 00:10:10,120
Speaker 2: The last time a president activated a state's National Guard

168
00:10:10,480 --> 00:10:14,240
Speaker 2: without a request from the governor was in nineteen sixty five,

169
00:10:14,320 --> 00:10:18,240
Speaker 2: when President Lyndon Johnson used the Guard to protect civil

170
00:10:18,360 --> 00:10:23,280
Speaker 2: rights demonstrators in Alabama after the governor refused to do so.

171
00:10:23,679 --> 00:10:28,200
Speaker 2: Some are pointing to that as precedent for Trump's actions here.

172
00:10:28,400 --> 00:10:31,400
Speaker 1: Well, I think the problem is there you would say

173
00:10:31,440 --> 00:10:33,640
Speaker 1: the same thing, which was there was an inability to

174
00:10:33,760 --> 00:10:35,920
Speaker 1: enforce the federal law. The states did not want to

175
00:10:36,040 --> 00:10:40,000
Speaker 1: enforce the federal law, and so you needed to actually

176
00:10:40,040 --> 00:10:43,320
Speaker 1: have the National Guard there to enforce the federal law.

177
00:10:43,679 --> 00:10:46,760
Speaker 1: Here there is an assertion that the states are not

178
00:10:47,400 --> 00:10:49,840
Speaker 1: enforcing the federal law. But the problem is, in these

179
00:10:49,840 --> 00:10:53,880
Speaker 1: immigration contexts, the states don't enforce the federal law. They're

180
00:10:53,920 --> 00:10:57,360
Speaker 1: not supposed to round people up and deport them, so

181
00:10:57,440 --> 00:11:00,199
Speaker 1: that's just for the federal government to do. Now, if

182
00:11:00,200 --> 00:11:06,920
Speaker 1: the state police was actually blocking the ability to find

183
00:11:07,000 --> 00:11:10,520
Speaker 1: people for deportation, I think the President would be in

184
00:11:10,520 --> 00:11:13,760
Speaker 1: a much stronger ground here, But they would need that

185
00:11:13,920 --> 00:11:16,920
Speaker 1: sort of evidence to be presenting the court in this context,

186
00:11:16,920 --> 00:11:20,040
Speaker 1: which is here we are just trying to have ice

187
00:11:20,080 --> 00:11:25,680
Speaker 1: agents enforce the law, and we're encountering actual resistance from

188
00:11:25,760 --> 00:11:28,800
Speaker 1: state and local officials to our ability to do this,

189
00:11:29,240 --> 00:11:31,800
Speaker 1: as opposed to verbal you know, hey, go do this,

190
00:11:31,960 --> 00:11:34,839
Speaker 1: which is you know most of what you see. If

191
00:11:34,840 --> 00:11:38,440
Speaker 1: there was actual impeditent and roadblock, then I do think

192
00:11:38,480 --> 00:11:41,600
Speaker 1: this argument would be a much stronger of the administration's part.

193
00:11:41,880 --> 00:11:44,880
Speaker 2: Stay with me. Leon. Coming up next, I'll continue this

194
00:11:44,960 --> 00:11:49,960
Speaker 2: conversation with Leon Fresco. We'll discuss why Senator Alex Paedilla

195
00:11:50,000 --> 00:11:54,800
Speaker 2: of California was forcibly removed from the Homeland Security Secretary's

196
00:11:54,800 --> 00:11:58,760
Speaker 2: press conference and handcuffed. I'm June Grosso and you're listening

197
00:11:58,800 --> 00:12:02,920
Speaker 2: to Bloomberg. This week, President Trump ordered the deployment of

198
00:12:02,960 --> 00:12:07,120
Speaker 2: about four thousand National Guard troops and seven hundred marines

199
00:12:07,160 --> 00:12:11,520
Speaker 2: to Los Angeles following protests that have been concentrated in

200
00:12:11,600 --> 00:12:15,440
Speaker 2: a few blocks downtown over his stepped up enforcement of

201
00:12:15,480 --> 00:12:19,560
Speaker 2: immigration laws. And on Thursday, as lawyers for the state

202
00:12:19,600 --> 00:12:23,280
Speaker 2: and the federal government were arguing in La federal court

203
00:12:23,520 --> 00:12:27,400
Speaker 2: about whether the President had overstepped his authority by deploying

204
00:12:27,400 --> 00:12:31,480
Speaker 2: the National Guard without the governor's request, in the Federal Building,

205
00:12:31,760 --> 00:12:36,479
Speaker 2: the senior US Senator from California, Alex Paedia, was forcibly

206
00:12:36,520 --> 00:12:40,920
Speaker 2: removed from the press conference of Homeland Security Secretary Christy

207
00:12:41,040 --> 00:12:44,040
Speaker 2: Nome as he interrupted her to try to ask a question.

208
00:12:44,480 --> 00:12:45,120
Speaker 1: I have a question.

209
00:12:45,960 --> 00:12:47,280
Speaker 7: The secretary.

210
00:12:48,600 --> 00:12:51,960
Speaker 2: Of the senator was pushed from the room by FBI

211
00:12:52,080 --> 00:12:55,400
Speaker 2: agents and Secret Service, who then forced him to the

212
00:12:55,440 --> 00:12:59,240
Speaker 2: ground in the hallway outside and handcuffed him.

213
00:12:59,520 --> 00:13:02,800
Speaker 7: If this is how the Department of homett Security responds

214
00:13:03,120 --> 00:13:07,080
Speaker 7: to a senator with a question, you can only imagine

215
00:13:09,040 --> 00:13:15,359
Speaker 7: what they're doing to farm workers, to cuts to day labors.

216
00:13:15,679 --> 00:13:19,240
Speaker 2: I've been talking to immigration law expert Leon Fresco, a

217
00:13:19,320 --> 00:13:22,360
Speaker 2: partner at Hollanda Knight. Leon, let's put this incident with

218
00:13:22,559 --> 00:13:26,959
Speaker 2: Senator Padilla in context. In the last two months, there

219
00:13:27,000 --> 00:13:31,840
Speaker 2: have been arrests of a Wisconsin judge, a New Jersey congresswoman,

220
00:13:32,240 --> 00:13:36,160
Speaker 2: and a California union leader, all with regard to immigration

221
00:13:36,320 --> 00:13:39,920
Speaker 2: issues and the borders are. Tom Holman has even threatened

222
00:13:40,320 --> 00:13:45,520
Speaker 2: to arrest the governor of California for obstructing immigration enforcement,

223
00:13:45,800 --> 00:13:48,440
Speaker 2: and the President said that would be great. And now

224
00:13:48,480 --> 00:13:51,880
Speaker 2: we have this handcuffing of a US senator. Is this

225
00:13:51,920 --> 00:13:55,959
Speaker 2: an attempt to try to intimidate officials, to warn them

226
00:13:55,960 --> 00:13:57,920
Speaker 2: about interfering with the ICE crackdown?

227
00:13:58,200 --> 00:14:00,360
Speaker 1: Well, I think there's a bunch of points that all

228
00:14:00,360 --> 00:14:04,120
Speaker 1: have to be separated factually and contextually. There is, on

229
00:14:04,240 --> 00:14:08,360
Speaker 1: one side of the spectrum a scenario whereby ICE is

230
00:14:08,400 --> 00:14:11,760
Speaker 1: in the middle of an operation and there's some official

231
00:14:11,800 --> 00:14:15,320
Speaker 1: who does something that makes it so that that operation

232
00:14:15,480 --> 00:14:18,520
Speaker 1: is not successful. So if you had the judge who

233
00:14:18,800 --> 00:14:22,120
Speaker 1: escorts the person that ICE is looking for outside of

234
00:14:22,120 --> 00:14:25,480
Speaker 1: a different door so that ICE can't find them, you

235
00:14:25,520 --> 00:14:29,600
Speaker 1: can say that that's harboring or concealing, because that statute

236
00:14:29,640 --> 00:14:32,840
Speaker 1: is very broad and pretty much any assistance.

237
00:14:32,360 --> 00:14:34,520
Speaker 6: Like that that you give to someone who you.

238
00:14:34,640 --> 00:14:40,280
Speaker 1: Know is in the country illegally, you are violating the statue.

239
00:14:40,360 --> 00:14:43,720
Speaker 1: So that's one scenario. Then you have the other scenario.

240
00:14:44,200 --> 00:14:47,320
Speaker 1: The two things that have happened, one with the congresswoman

241
00:14:47,360 --> 00:14:52,080
Speaker 1: from New Jersey in the detention facility and now Senator Pania.

242
00:14:52,520 --> 00:14:55,520
Speaker 1: These are very complicated because we don't have anybody with

243
00:14:55,640 --> 00:14:58,480
Speaker 1: clean hands in the sense of you have in the

244
00:14:58,560 --> 00:15:02,680
Speaker 1: video Senator Pania coming into this press conference. You have

245
00:15:02,840 --> 00:15:07,240
Speaker 1: Secretary Nomes speaking and he's speaking over her, and he's

246
00:15:07,280 --> 00:15:10,280
Speaker 1: walking toward her direction, and it's speaking over her. It's

247
00:15:10,280 --> 00:15:12,600
Speaker 1: not like he waits till there's a pause to ask

248
00:15:12,600 --> 00:15:17,480
Speaker 1: a question. He's verbally interrupting her press conference. But then

249
00:15:17,840 --> 00:15:20,000
Speaker 1: you had that dealt with in a manner where it's

250
00:15:20,000 --> 00:15:22,240
Speaker 1: not just that he's taken out of the room and

251
00:15:22,320 --> 00:15:24,800
Speaker 1: the door is closed. Let's say, but he's taken out

252
00:15:24,800 --> 00:15:27,720
Speaker 1: of the room, he's put to the floor, and he's handcuffed,

253
00:15:28,040 --> 00:15:30,880
Speaker 1: and so there's the argument there about excessive force and

254
00:15:30,920 --> 00:15:34,560
Speaker 1: whether any of that was necessary, and those are going

255
00:15:34,640 --> 00:15:37,680
Speaker 1: to be complicated issues. I don't think much is going

256
00:15:37,720 --> 00:15:39,960
Speaker 1: to happen. I don't think the federal government's going to

257
00:15:40,000 --> 00:15:43,680
Speaker 1: prosecute any of the agents involved. I don't know what's

258
00:15:43,720 --> 00:15:46,920
Speaker 1: going to happen with regard to these escalations moving forward.

259
00:15:47,520 --> 00:15:52,320
Speaker 1: Ideally we would come toward some sort of pass forward

260
00:15:52,360 --> 00:15:55,960
Speaker 1: in this country where there's consensus on immigration.

261
00:15:56,160 --> 00:15:59,840
Speaker 2: Enforcement is part of this, the pressure on ice age

262
00:15:59,840 --> 00:16:03,080
Speaker 2: and to increase the rest to something like three thousand

263
00:16:03,160 --> 00:16:06,280
Speaker 2: a day, up from roughly six hundred and sixty a day.

264
00:16:06,880 --> 00:16:09,400
Speaker 1: You know, we're in months six now of this administration.

265
00:16:10,000 --> 00:16:12,840
Speaker 1: I think in months one, two, and three, where there

266
00:16:12,920 --> 00:16:17,720
Speaker 1: was this discussion about really focusing on criminal backgrounds first,

267
00:16:17,960 --> 00:16:21,360
Speaker 1: that was happening, and yes there might be some people

268
00:16:21,400 --> 00:16:24,560
Speaker 1: who were protesting, but those people were really on the

269
00:16:24,600 --> 00:16:28,080
Speaker 1: fringes because it's really hard to argue against supporting people

270
00:16:28,080 --> 00:16:31,480
Speaker 1: with criminal convictions. But I do think there needs to

271
00:16:31,520 --> 00:16:34,840
Speaker 1: be some discussion about this, and I even think the president,

272
00:16:34,960 --> 00:16:38,360
Speaker 1: to his credit, actually said that when he said in

273
00:16:38,400 --> 00:16:40,720
Speaker 1: a press conference this week that he was concerned that

274
00:16:40,880 --> 00:16:45,720
Speaker 1: enforcement might be affecting the farms and the hospitality industry,

275
00:16:46,240 --> 00:16:50,440
Speaker 1: and so there might be some opportunity here to provide

276
00:16:50,480 --> 00:16:54,480
Speaker 1: some guidance. And what I've heard from people in the

277
00:16:54,640 --> 00:16:58,040
Speaker 1: sphere who are more reasonable is, look, people with criminal

278
00:16:58,080 --> 00:17:01,720
Speaker 1: backgrounds and people who came in the last four years

279
00:17:01,840 --> 00:17:06,080
Speaker 1: during the period where there was this open border policy

280
00:17:06,640 --> 00:17:09,720
Speaker 1: of people coming through the border at hundreds of thousands

281
00:17:09,800 --> 00:17:12,320
Speaker 1: a month, that should be the focus. And then if

282
00:17:12,320 --> 00:17:16,040
Speaker 1: you're sort of here before twenty twenty, maybe you wouldn't

283
00:17:16,040 --> 00:17:19,440
Speaker 1: be a focus of the immigration enforcement. Something like that

284
00:17:19,520 --> 00:17:22,919
Speaker 1: I think would blower the tensions here while still giving

285
00:17:22,960 --> 00:17:27,240
Speaker 1: plenty of work that can occupy this administration for the

286
00:17:27,359 --> 00:17:28,560
Speaker 1: rest of the four years.

287
00:17:29,040 --> 00:17:29,240
Speaker 5: Yeah.

288
00:17:29,240 --> 00:17:33,240
Speaker 2: On Thursday, Trump did seem to be softening his stance

289
00:17:33,600 --> 00:17:38,520
Speaker 2: on undocumented farm workers and hospitality workers.

290
00:17:38,920 --> 00:17:41,800
Speaker 3: Our farmers are being hurt badly by you know, they

291
00:17:41,880 --> 00:17:44,520
Speaker 3: have very good workers. They've worked for him for twenty years.

292
00:17:44,640 --> 00:17:48,359
Speaker 3: They're not citizens, but they've turned out to be, you know, great,

293
00:17:49,000 --> 00:17:50,720
Speaker 3: and we're gonna have to do something about that.

294
00:17:51,040 --> 00:17:53,560
Speaker 2: I mean, is there a way to carve out certain

295
00:17:53,640 --> 00:17:57,200
Speaker 2: migrants who work on farms or in the hospitality industry.

296
00:17:57,520 --> 00:18:00,520
Speaker 1: That might be unseemly to right at exactly like that.

297
00:18:01,000 --> 00:18:04,760
Speaker 1: But there have been prosecutorial discretion memos both under the

298
00:18:04,760 --> 00:18:08,480
Speaker 1: Obama administration and the Biden administration. And in fact, there's

299
00:18:08,480 --> 00:18:11,480
Speaker 1: a Supreme Court case where the State of Texas challenge

300
00:18:11,520 --> 00:18:16,440
Speaker 1: the Biden administration prosecutorial discretion memo, and the Supreme Court

301
00:18:16,480 --> 00:18:18,679
Speaker 1: said that none of your business, State of Texas, the

302
00:18:19,040 --> 00:18:23,880
Speaker 1: Biden administration can have a prosecutorial discretion memo. So to

303
00:18:23,920 --> 00:18:27,359
Speaker 1: the extent that President Trump wants the AHS to have

304
00:18:27,480 --> 00:18:32,000
Speaker 1: such a prosecutorial discretion memo, yes, it could say we're

305
00:18:32,040 --> 00:18:36,640
Speaker 1: going to not focus on the farms and the hospitality industry.

306
00:18:36,960 --> 00:18:40,240
Speaker 1: But I think probably what would be well advised is

307
00:18:40,320 --> 00:18:42,840
Speaker 1: rather than just those very narrow carve outs, I think

308
00:18:42,840 --> 00:18:47,360
Speaker 1: it's about a larger sort of way.

309
00:18:47,200 --> 00:18:48,639
Speaker 6: To diffuse tensions.

310
00:18:48,680 --> 00:18:51,920
Speaker 1: And I think that that would probably be a memo

311
00:18:52,080 --> 00:18:55,640
Speaker 1: that said, yes, you can stick industries that you're concerned about.

312
00:18:55,680 --> 00:18:58,919
Speaker 1: But I think again, there's plenty of people for ICE

313
00:18:59,000 --> 00:18:59,600
Speaker 1: to put through.

314
00:18:59,600 --> 00:19:00,680
Speaker 6: The product says, if you.

315
00:19:00,640 --> 00:19:05,320
Speaker 1: Are limiting it to criminal non citizens and also people

316
00:19:05,320 --> 00:19:09,160
Speaker 1: who've arrived during the Biden administration. Let's say that's still

317
00:19:09,240 --> 00:19:11,800
Speaker 1: millions of people. You will not get to all of

318
00:19:11,840 --> 00:19:14,879
Speaker 1: those people, if that's what you focus on, and you

319
00:19:14,920 --> 00:19:17,600
Speaker 1: don't have to say, well, we won't one hundred percent

320
00:19:17,680 --> 00:19:19,800
Speaker 1: go after other people, but you can say those folks

321
00:19:19,840 --> 00:19:23,000
Speaker 1: will be deprioritized and will not be the subjects of

322
00:19:23,000 --> 00:19:26,600
Speaker 1: any affirmative operations. And I think that would do a

323
00:19:26,680 --> 00:19:31,040
Speaker 1: lot toward diffusing a lot of this tension, but still giving,

324
00:19:31,280 --> 00:19:35,440
Speaker 1: Like I said, plenty of work for the Trump administration

325
00:19:35,600 --> 00:19:37,440
Speaker 1: to do with regard to removal lean.

326
00:19:37,520 --> 00:19:39,240
Speaker 2: I want to talk for a moment about the case

327
00:19:39,280 --> 00:19:41,920
Speaker 2: of Mahmoud Khalil, who was a leader in the pro

328
00:19:42,040 --> 00:19:47,359
Speaker 2: Palestinian protests at Columbia and the first person arrested in

329
00:19:47,400 --> 00:19:50,440
Speaker 2: the Trump crackdown on student activism.

330
00:19:51,119 --> 00:19:54,040
Speaker 1: There are two grounds for trying to deport him. The

331
00:19:54,080 --> 00:19:57,040
Speaker 1: most important ground, the court said, is this statute, which

332
00:19:57,080 --> 00:20:00,119
Speaker 1: says that if the Secretary of State finds them that

333
00:20:00,480 --> 00:20:04,440
Speaker 1: your conduct would be detrimental to the United States foreign policy,

334
00:20:04,800 --> 00:20:08,000
Speaker 1: they can order your deportation. And what the court found

335
00:20:08,160 --> 00:20:11,760
Speaker 1: was that this provision is constitutionally void because it's too vague.

336
00:20:12,200 --> 00:20:14,920
Speaker 1: The vagueness doctor means that when you pass the law,

337
00:20:15,000 --> 00:20:18,640
Speaker 1: nobody knows how to implement the law in a way

338
00:20:18,640 --> 00:20:19,120
Speaker 1: where they.

339
00:20:19,040 --> 00:20:19,760
Speaker 6: Can follow it.

340
00:20:19,840 --> 00:20:23,080
Speaker 1: So suppose the Congress passed the law that said you

341
00:20:23,119 --> 00:20:26,120
Speaker 1: can't be out too late at night, what would that mean?

342
00:20:26,359 --> 00:20:28,360
Speaker 1: You would know what too late at night meant. Would

343
00:20:28,400 --> 00:20:31,120
Speaker 1: it mean eight pm, would it mean nine pm? Would

344
00:20:31,119 --> 00:20:33,720
Speaker 1: it mean ten pm? And so that would be void

345
00:20:33,760 --> 00:20:36,200
Speaker 1: for vagueness, so one would know. And it's the same

346
00:20:36,280 --> 00:20:39,600
Speaker 1: concept here. How do you know what speech you can

347
00:20:39,680 --> 00:20:43,119
Speaker 1: make that's going to make you subject to a policy

348
00:20:43,480 --> 00:20:46,520
Speaker 1: that says that you can be deported for violating the

349
00:20:46,560 --> 00:20:50,359
Speaker 1: foreign policy interests of the United States, And so unless

350
00:20:50,359 --> 00:20:54,800
Speaker 1: there's clearer guidance, given that's a too vague statute.

351
00:20:55,080 --> 00:20:56,640
Speaker 6: Now, the problem is.

352
00:20:56,600 --> 00:20:59,400
Speaker 1: There's two other big arguments that the government has. They're

353
00:20:59,440 --> 00:21:02,080
Speaker 1: saying that they're also trying to deport him because he

354
00:21:02,160 --> 00:21:05,520
Speaker 1: lied on his green card application, because he didn't disclose

355
00:21:05,600 --> 00:21:08,399
Speaker 1: that he had worked for the Syria Office and the

356
00:21:08,400 --> 00:21:11,600
Speaker 1: British Embassy in Bay Route. Also that he didn't disclose

357
00:21:11,680 --> 00:21:14,800
Speaker 1: that he worked at the United Nations Relief and Works

358
00:21:14,840 --> 00:21:18,400
Speaker 1: Agency for the Palestinian refugees. And he also didn't disclose

359
00:21:18,480 --> 00:21:21,440
Speaker 1: he was a member of the Columbia University Apartheid the

360
00:21:21,520 --> 00:21:25,119
Speaker 1: Best Group, and so all of these things would have

361
00:21:25,160 --> 00:21:27,800
Speaker 1: been informative in his green card application, and the fact

362
00:21:27,840 --> 00:21:30,879
Speaker 1: that he didn't disclose those leads him to also be

363
00:21:31,000 --> 00:21:33,879
Speaker 1: deportable on that and so that's one argument. And the second

364
00:21:33,960 --> 00:21:37,240
Speaker 1: argument is whether this habeas petition that was filed by

365
00:21:37,240 --> 00:21:39,920
Speaker 1: mister Khalil is actually the right for him to make

366
00:21:39,960 --> 00:21:42,320
Speaker 1: any of these arguments or whether he can only make

367
00:21:42,359 --> 00:21:44,800
Speaker 1: it in the removal process so that it would be

368
00:21:44,840 --> 00:21:47,359
Speaker 1: at the end if he's ordered to deport it, only

369
00:21:47,440 --> 00:21:50,199
Speaker 1: then could he make his argument. That's also very strong

370
00:21:50,359 --> 00:21:52,879
Speaker 1: argument that the government has, and so we're going to

371
00:21:52,960 --> 00:21:56,200
Speaker 1: have to see both of those before we see if

372
00:21:56,280 --> 00:21:59,040
Speaker 1: mister Khalil ultimately gets freed from dessension.

373
00:22:00,000 --> 00:22:03,359
Speaker 2: The New Jersey judge had ruled that the government couldn't

374
00:22:03,400 --> 00:22:06,479
Speaker 2: continue to hold him on that first ground, the foreign

375
00:22:06,520 --> 00:22:10,960
Speaker 2: policy ground, but on Friday, the government's submitted papers saying

376
00:22:10,960 --> 00:22:13,600
Speaker 2: that it could continue to hold him on the second

377
00:22:13,680 --> 00:22:17,159
Speaker 2: ground that he'd lied on his green card application. So

378
00:22:17,240 --> 00:22:20,480
Speaker 2: the judge refused to order his release, saying he hadn't

379
00:22:20,520 --> 00:22:25,480
Speaker 2: presented enough evidence that detention on those grounds was unlawful.

380
00:22:25,960 --> 00:22:29,120
Speaker 2: Is lying on your green card application enough to get

381
00:22:29,160 --> 00:22:29,879
Speaker 2: you deported?

382
00:22:30,600 --> 00:22:33,200
Speaker 1: I mean the can because given that he's not a citizen,

383
00:22:33,560 --> 00:22:36,240
Speaker 1: he doesn't have to be denaturalized, which is a very

384
00:22:36,240 --> 00:22:39,720
Speaker 1: long process that involves a federal court trial. That doesn't

385
00:22:39,760 --> 00:22:41,520
Speaker 1: need to happen, so well, the only thing that needs

386
00:22:41,520 --> 00:22:43,760
Speaker 1: to happen is he would need to be placed into

387
00:22:43,800 --> 00:22:47,879
Speaker 1: removal proceedings. And then when he's placed into removal proceedings,

388
00:22:47,920 --> 00:22:50,239
Speaker 1: the only thing that needs to happen there is that

389
00:22:50,280 --> 00:22:52,639
Speaker 1: an immigration judge needs to agree that he lied on

390
00:22:52,680 --> 00:22:55,439
Speaker 1: his green card application, and that basically that's going to

391
00:22:55,440 --> 00:22:59,119
Speaker 1: be an issue of materiality and so worthy three omissions

392
00:22:59,240 --> 00:23:03,399
Speaker 1: material they have changed something, And the only people that

393
00:23:03,640 --> 00:23:06,760
Speaker 1: are going to matter there are the immigration judge and

394
00:23:06,800 --> 00:23:10,040
Speaker 1: then the Board of Immigration Appeals, which is the administrative appeal,

395
00:23:10,400 --> 00:23:13,479
Speaker 1: and then maybe a Court of Appeals if it's ruled

396
00:23:13,760 --> 00:23:16,520
Speaker 1: that this is something that the courts have jurisdiction to review.

397
00:23:17,040 --> 00:23:17,560
Speaker 6: But that's it.

398
00:23:17,840 --> 00:23:20,520
Speaker 1: That's the only people. So this whole other issue of

399
00:23:20,560 --> 00:23:24,320
Speaker 1: the importance Marco Rubio determination and that statute and everything

400
00:23:24,320 --> 00:23:27,800
Speaker 1: else may end up getting shunted to the side, and

401
00:23:28,119 --> 00:23:30,399
Speaker 1: the real issue that he ends up getting removed for

402
00:23:30,960 --> 00:23:33,440
Speaker 1: may end up just being this application issue.

403
00:23:33,920 --> 00:23:37,919
Speaker 2: In your experience, do people often get removed for lying

404
00:23:37,960 --> 00:23:39,879
Speaker 2: on their green card application.

405
00:23:40,359 --> 00:23:44,480
Speaker 1: It's usually a proxy for something more serious, just like

406
00:23:44,520 --> 00:23:48,200
Speaker 1: it is here, which is they wouldn't say to you

407
00:23:48,560 --> 00:23:51,879
Speaker 1: four years after your green card application, Hey, you forgot

408
00:23:51,880 --> 00:23:54,280
Speaker 1: to mention that you were in the Elks Club from

409
00:23:54,320 --> 00:23:58,040
Speaker 1: November to January of twenty twelve. They're not going to

410
00:23:58,119 --> 00:24:00,240
Speaker 1: depart you for that, even though yes, if you were

411
00:24:00,280 --> 00:24:02,520
Speaker 1: a member of the l club, you have to mention it.

412
00:24:02,880 --> 00:24:04,639
Speaker 1: But they're not going to support you for that. But

413
00:24:04,920 --> 00:24:08,000
Speaker 1: usually what they're concerned about is if they have some

414
00:24:08,160 --> 00:24:12,560
Speaker 1: reason that they want to deport you, and they can

415
00:24:12,640 --> 00:24:16,040
Speaker 1: show look, this actually would have had a material impact

416
00:24:16,040 --> 00:24:18,600
Speaker 1: on your application, But they can't support you for any

417
00:24:18,640 --> 00:24:19,720
Speaker 1: other reason because you haven't.

418
00:24:19,560 --> 00:24:22,000
Speaker 6: Actually been convicted of a crime.

419
00:24:22,600 --> 00:24:24,720
Speaker 1: This would be a reason that they have used in

420
00:24:24,760 --> 00:24:27,159
Speaker 1: the past and could use in the future against people.

421
00:24:27,480 --> 00:24:30,480
Speaker 2: That seems like what might be happening here. Leon, thanks

422
00:24:30,520 --> 00:24:34,720
Speaker 2: so much for once again taking us through the maze

423
00:24:34,800 --> 00:24:38,600
Speaker 2: that is immigration law. That's Leon Fresco of Honda Night

424
00:24:39,040 --> 00:24:41,960
Speaker 2: Coming up. Trump gets a reprieve from a court order

425
00:24:42,040 --> 00:24:46,119
Speaker 2: blocking his tariffs. I'm June Grosso and you're listening to Bloomberg.

426
00:24:46,760 --> 00:24:50,440
Speaker 2: As President Donald Trump's trade war plays out in the headlines,

427
00:24:50,680 --> 00:24:53,560
Speaker 2: a legal battle is playing out in the courts over

428
00:24:53,600 --> 00:24:57,800
Speaker 2: his use of emergency powers to impose tariffs. Trump announced

429
00:24:57,800 --> 00:25:01,600
Speaker 2: the reciprocal tariffs on imports for from almost sixty countries

430
00:25:01,760 --> 00:25:02,840
Speaker 2: on April second.

431
00:25:03,240 --> 00:25:06,159
Speaker 3: In short, chronic trade deficits are no longer merely an

432
00:25:06,200 --> 00:25:11,000
Speaker 3: economic problem. They're a national emergency that threatens our security

433
00:25:11,400 --> 00:25:13,760
Speaker 3: and our very way of life. It's a very great

434
00:25:13,840 --> 00:25:17,400
Speaker 3: threat to our country, and for these reasons, starting tomorrow,

435
00:25:17,440 --> 00:25:21,960
Speaker 3: the United States will implement reciprocal tariffs on other nations.

436
00:25:22,560 --> 00:25:26,720
Speaker 2: Trump cited trade deficits with other countries and drug trafficking

437
00:25:26,760 --> 00:25:30,280
Speaker 2: at the border as national emergencies that allowed him to

438
00:25:30,320 --> 00:25:34,960
Speaker 2: invoke the International Emergency Economic Powers Act or IEPA to

439
00:25:35,040 --> 00:25:38,920
Speaker 2: impose tariffs by executive order. At least six lawsuits have

440
00:25:39,000 --> 00:25:42,960
Speaker 2: been filed challenging this first time use of AIPA to

441
00:25:43,040 --> 00:25:46,840
Speaker 2: impose tariffs, and the US Court of International Trade ruled

442
00:25:46,960 --> 00:25:50,639
Speaker 2: unanimously on May twenty eighth that Trump had exceeded his

443
00:25:50,720 --> 00:25:54,520
Speaker 2: authority and ordered the tariffs blocked. But this week the

444
00:25:54,640 --> 00:25:57,959
Speaker 2: US Court of Appeals for the Federal Circuit gave Trump

445
00:25:58,040 --> 00:26:01,040
Speaker 2: a reprieve, deciding that the tear tariffs can remain in

446
00:26:01,080 --> 00:26:05,160
Speaker 2: place until it designs the case. My guest is Jimmy Garula,

447
00:26:05,359 --> 00:26:08,119
Speaker 2: a professor at Notre Dame Law School. He's a former

448
00:26:08,160 --> 00:26:12,040
Speaker 2: federal prosecutor and was the under Secretary for Enforcement at

449
00:26:12,040 --> 00:26:16,879
Speaker 2: the Department of the Treasury during the George W. Bush administration. Jimmy,

450
00:26:16,920 --> 00:26:20,479
Speaker 2: why did the US Trade Court rule that AIPA doesn't

451
00:26:20,520 --> 00:26:23,600
Speaker 2: give Trump the authority to impose these tariffs.

452
00:26:24,000 --> 00:26:27,520
Speaker 5: Well, first, it's important to understand that there are really

453
00:26:27,760 --> 00:26:32,320
Speaker 5: two types of tariffs that are implicated in the US

454
00:26:32,359 --> 00:26:36,080
Speaker 5: Court of International Trades decision. So first, there are the

455
00:26:36,200 --> 00:26:42,920
Speaker 5: AIPA Fetanyl migration tariffs, and these pertain specifically to China, Mexico,

456
00:26:43,000 --> 00:26:47,240
Speaker 5: and Canada. And here President Trump has declared that there

457
00:26:47,320 --> 00:26:51,840
Speaker 5: is a national emergency, it's an unusual and extraordinary threat

458
00:26:52,560 --> 00:26:56,399
Speaker 5: to the national security, economy, and foreign policy of the

459
00:26:56,480 --> 00:27:02,240
Speaker 5: United States. And therefore his response after making that emergency

460
00:27:02,320 --> 00:27:06,840
Speaker 5: declaration is to impose tariffs against these three countries. The

461
00:27:06,880 --> 00:27:12,439
Speaker 5: second group of tariffs, or the worldwide retaliatory tariffs, And

462
00:27:12,560 --> 00:27:16,280
Speaker 5: there the unusual and extraordinary threat. You know, the national

463
00:27:16,320 --> 00:27:19,520
Speaker 5: emergency involves trade deficits, and this is much broader. It's

464
00:27:19,560 --> 00:27:22,240
Speaker 5: not limited to these three countries, you know, China, Mexico,

465
00:27:22,400 --> 00:27:25,000
Speaker 5: and Canada, but it extends to all of the US

466
00:27:25,119 --> 00:27:27,720
Speaker 5: trading partners. And the claim is that, oh, we've got

467
00:27:27,720 --> 00:27:31,520
Speaker 5: this trade deficit, this is an unusual and extraordinary threat.

468
00:27:31,680 --> 00:27:34,920
Speaker 5: It threatens the economy of the United States, and therefore

469
00:27:35,240 --> 00:27:39,200
Speaker 5: the response is the imposition of tariffs, you know, worldwide.

470
00:27:39,560 --> 00:27:43,359
Speaker 5: And so the Court of International Trade you know, struck

471
00:27:43,440 --> 00:27:47,600
Speaker 5: down both sets of tariffs. With respect to the fetanyl

472
00:27:47,840 --> 00:27:52,600
Speaker 5: migration tariffs, the court found that there wasn't a sufficient

473
00:27:52,720 --> 00:27:58,720
Speaker 5: nexus between the so called national emergency, the importation the

474
00:27:58,760 --> 00:28:02,959
Speaker 5: abuse of fetanyl, and tariffs. There just wasn't a sufficient nexus. Like,

475
00:28:03,040 --> 00:28:07,800
Speaker 5: if the emergency is drug trafficking, drug importation, then what's

476
00:28:07,840 --> 00:28:11,560
Speaker 5: the relationship between that and tariffs, And the court just

477
00:28:11,600 --> 00:28:15,000
Speaker 5: said there isn't a sufficient nexus between the two. And

478
00:28:15,240 --> 00:28:19,400
Speaker 5: IEPA just doesn't justify the use of tariffs in this way.

479
00:28:19,520 --> 00:28:23,960
Speaker 5: So again it's a statutory construction issue involving the interpretation

480
00:28:24,240 --> 00:28:27,840
Speaker 5: of the International Emergency Economic Powers Act With respect to

481
00:28:28,200 --> 00:28:31,919
Speaker 5: the second, the Worldwide retaliation tariffs have said that the

482
00:28:32,040 --> 00:28:35,760
Speaker 5: language an IEPA, which it authorizes a president to regulate

483
00:28:35,840 --> 00:28:40,520
Speaker 5: importation through economic stinctions the courses, does not confer unlimited

484
00:28:40,560 --> 00:28:44,560
Speaker 5: tariff authority on the president and therefore struck down that

485
00:28:44,800 --> 00:28:46,240
Speaker 5: set of tariffs as well.

486
00:28:46,520 --> 00:28:50,160
Speaker 2: So the appellate court is allowing Trump to keep the

487
00:28:50,480 --> 00:28:55,160
Speaker 2: tariffs in effect while it plans to hold arguments July thirty. First,

488
00:28:55,520 --> 00:28:59,560
Speaker 2: did it offer a reason for siding with the administration

489
00:28:59,640 --> 00:29:01,320
Speaker 2: at this It didn't.

490
00:29:01,480 --> 00:29:03,480
Speaker 5: In fact, if you look at the order, it's very short.

491
00:29:03,560 --> 00:29:06,880
Speaker 5: I think it's four pages, and so it's very conclusiony

492
00:29:06,920 --> 00:29:10,520
Speaker 5: in nature and doesn't really spell out the reasons why

493
00:29:10,720 --> 00:29:15,840
Speaker 5: it is basically blocking the nationwide permanent injunction on the tariffs,

494
00:29:16,040 --> 00:29:18,560
Speaker 5: but just said that it was warranted in this case.

495
00:29:18,800 --> 00:29:22,400
Speaker 5: One could reasonably speculate that the Pellet Court is just

496
00:29:22,480 --> 00:29:25,600
Speaker 5: concerned about the impact and the implications of the lower

497
00:29:25,600 --> 00:29:29,000
Speaker 5: court decision. I mean, if the tariffs are illegal and

498
00:29:29,120 --> 00:29:33,400
Speaker 5: therefore should be block pursuant to this permanent restraining order,

499
00:29:33,800 --> 00:29:37,000
Speaker 5: then it's going to just, you know, turn on its head.

500
00:29:37,160 --> 00:29:41,080
Speaker 5: You know, the Trump administration's policy, economic policy with respect

501
00:29:41,160 --> 00:29:46,000
Speaker 5: to foreign affairs, commercial trade, worldwide, And so I think

502
00:29:46,040 --> 00:29:49,600
Speaker 5: before the Court is willing to authorize this or permit

503
00:29:49,800 --> 00:29:54,040
Speaker 5: action that has such far reaching impact that it wants

504
00:29:54,080 --> 00:29:58,480
Speaker 5: to give the parties ample opportunity to fully brief and

505
00:29:58,640 --> 00:30:02,800
Speaker 5: litigate the issue, use for the Appellate Court to consider.

506
00:30:02,640 --> 00:30:06,800
Speaker 2: Those challenging the tariffs they seek an emergency appeal to

507
00:30:06,840 --> 00:30:11,720
Speaker 2: the Supreme Court. Has the Supreme Court ruled on IEPA before.

508
00:30:12,160 --> 00:30:15,880
Speaker 5: Yes, there have been some Supreme Court decisions interpreting, you know,

509
00:30:15,920 --> 00:30:19,720
Speaker 5: the scope of AEPA. But this specific issue of whether

510
00:30:19,800 --> 00:30:25,760
Speaker 5: IEPA authorizes the president to use tariffs as an economic

511
00:30:25,840 --> 00:30:30,600
Speaker 5: sanction in response to the national emergency, that's an issue

512
00:30:30,680 --> 00:30:34,400
Speaker 5: of first impression, and the reason being to that this

513
00:30:34,440 --> 00:30:36,920
Speaker 5: is the first time, you know, the use of tariffs

514
00:30:37,120 --> 00:30:40,280
Speaker 5: under IEPA by President Trump is the first time in

515
00:30:40,320 --> 00:30:43,120
Speaker 5: the history of AEPA, which was enacted by Congress in

516
00:30:43,160 --> 00:30:46,640
Speaker 5: nineteen seventy seven. It's the first time any president has

517
00:30:46,720 --> 00:30:51,080
Speaker 5: used IEPA to authorize the imposition of tariffs against any country,

518
00:30:51,160 --> 00:30:54,560
Speaker 5: let alone every trading partner of the United States. So

519
00:30:54,600 --> 00:30:56,000
Speaker 5: it's an issue of first impression.

520
00:30:56,400 --> 00:30:59,160
Speaker 2: You were under Secretary for Enforcement at the Department of

521
00:30:59,200 --> 00:31:02,600
Speaker 2: the Treasury dealing with AIPA. I mean, what was APA

522
00:31:02,760 --> 00:31:03,200
Speaker 2: used for.

523
00:31:03,600 --> 00:31:08,560
Speaker 5: It was used in a dramatically different situation than it's

524
00:31:08,600 --> 00:31:11,200
Speaker 5: being used today by the Trump administration. When I was

525
00:31:11,280 --> 00:31:15,160
Speaker 5: under secretary, President George W. Bush declared an emergency with

526
00:31:15,240 --> 00:31:19,680
Speaker 5: respect to foreign terrorist organizations and specifically al Qaeda that

527
00:31:19,760 --> 00:31:22,240
Speaker 5: was responsible for the nine to eleven terror attacks, and

528
00:31:22,280 --> 00:31:25,880
Speaker 5: that was the national emergency, the threatened national security, and

529
00:31:26,120 --> 00:31:31,400
Speaker 5: AEPA was used to block transactions between individuals that were

530
00:31:31,440 --> 00:31:35,320
Speaker 5: supporting al Qaeda directly or indirectly providing support to al Kaeda.

531
00:31:35,480 --> 00:31:39,200
Speaker 5: So it blocked transactions and it authorized the freezing of

532
00:31:39,240 --> 00:31:42,240
Speaker 5: any assets in the United States that were linked to

533
00:31:42,560 --> 00:31:46,320
Speaker 5: al Qaeda or its supporters or sympathizers. There was never

534
00:31:46,520 --> 00:31:51,400
Speaker 5: any attempt to impose economic sanctions against any country that, say,

535
00:31:51,560 --> 00:31:55,360
Speaker 5: was providing some assistance or support to al Qaeda. So

536
00:31:55,400 --> 00:31:59,000
Speaker 5: it was a very very different context and situation, and

537
00:31:59,120 --> 00:32:03,040
Speaker 5: tariffs never even came up as a thought for of

538
00:32:03,080 --> 00:32:04,760
Speaker 5: AEPA in that situation.

539
00:32:05,240 --> 00:32:08,280
Speaker 2: If he's allowed to use ayep in this way, how

540
00:32:08,400 --> 00:32:12,080
Speaker 2: much does that broaden his authority.

541
00:32:12,080 --> 00:32:15,120
Speaker 5: Well, that's a concern, and that was one of the

542
00:32:15,560 --> 00:32:19,600
Speaker 5: issues and points raised in the decision by the US

543
00:32:19,640 --> 00:32:23,200
Speaker 5: Court of International Trade that this would provide the president

544
00:32:23,680 --> 00:32:29,200
Speaker 5: just expansive authority to impose economic sanctions on countries. And further,

545
00:32:29,560 --> 00:32:33,440
Speaker 5: the court argue that, wait a second, there are statutes,

546
00:32:33,760 --> 00:32:38,160
Speaker 5: federal statutes that Congress has enacted that authorize the president

547
00:32:38,440 --> 00:32:43,880
Speaker 5: under very limited and focused circumstances to impose terrors on countries.

548
00:32:44,080 --> 00:32:47,960
Speaker 5: And so to give the president this type of sweeping

549
00:32:48,000 --> 00:32:50,880
Speaker 5: authority to use tariffs uner ap in this way would

550
00:32:50,920 --> 00:32:53,960
Speaker 5: render those statutes the NOTTI. I mean, it would really

551
00:32:54,120 --> 00:32:56,760
Speaker 5: undermine the purpose of those states. Why do we need

552
00:32:56,760 --> 00:33:00,479
Speaker 5: those statutes? They would become redundant and unnecessary. And so

553
00:33:00,800 --> 00:33:04,800
Speaker 5: there seems to be an inherent conflict between the president's

554
00:33:05,000 --> 00:33:08,920
Speaker 5: use of AIPA in this broadway that again would undermine

555
00:33:09,120 --> 00:33:12,960
Speaker 5: these existing statues that Congress has enacted for the specific

556
00:33:13,000 --> 00:33:18,080
Speaker 5: purpose of the president imposing tariffs and unique specific situations.

557
00:33:18,280 --> 00:33:22,040
Speaker 2: Yeah, and administration officials have you know, publicly downplayed the

558
00:33:22,200 --> 00:33:25,400
Speaker 2: impact of the Trade Court's decision, saying that most of

559
00:33:25,440 --> 00:33:28,320
Speaker 2: the tariffs can be imposed by other means. So then

560
00:33:28,400 --> 00:33:31,120
Speaker 2: why didn't they impose them by other means? Is it

561
00:33:31,160 --> 00:33:31,920
Speaker 2: because this is.

562
00:33:32,480 --> 00:33:36,360
Speaker 5: Quicker, Yeah, it's easier, it's easier. So to use AEPA

563
00:33:36,400 --> 00:33:39,840
Speaker 5: in this way, it provides the president much broader sweeping

564
00:33:40,000 --> 00:33:43,280
Speaker 5: authority with respect to the imposition of tariffs. These other

565
00:33:43,400 --> 00:33:48,880
Speaker 5: federal statutes are more nuanced, they're more focused, and they

566
00:33:49,040 --> 00:33:52,040
Speaker 5: are more restrictive in terms of, you know, when these

567
00:33:52,080 --> 00:33:55,640
Speaker 5: tariffs can be imposed and with respect to what types

568
00:33:55,720 --> 00:33:59,480
Speaker 5: of commercial transactions. And so I think that the Trump

569
00:33:59,480 --> 00:34:04,520
Speaker 5: administrayation has attempted to avoid, you know, the more nuanced, restrictive,

570
00:34:04,760 --> 00:34:08,720
Speaker 5: kind of more difficult method or authorization for imposing tariffs

571
00:34:08,760 --> 00:34:10,800
Speaker 5: under those statutes and said, why do we want to

572
00:34:10,840 --> 00:34:14,319
Speaker 5: go there. We've got AEPA. Let's just use AEPA and IEPA.

573
00:34:14,440 --> 00:34:17,360
Speaker 5: You know, we don't have to be concerned about, you know,

574
00:34:17,440 --> 00:34:21,399
Speaker 5: the narrow focus on specific commercial transactions, and we can

575
00:34:21,520 --> 00:34:24,200
Speaker 5: just impose these tariffs across the board with respect to

576
00:34:24,239 --> 00:34:27,520
Speaker 5: every country that were engaged in regulatory trade.

577
00:34:27,640 --> 00:34:30,080
Speaker 2: Do you think that the Appellate Court, after it hears

578
00:34:30,280 --> 00:34:34,680
Speaker 2: oral arguments, will affirm the US Court of International Trades

579
00:34:34,760 --> 00:34:36,960
Speaker 2: decision to block the tariffs.

580
00:34:37,280 --> 00:34:41,840
Speaker 5: I think there are some very compelling reasons for striking

581
00:34:41,880 --> 00:34:45,560
Speaker 5: down the tariffs under AEPA. And I think again it

582
00:34:45,640 --> 00:34:49,160
Speaker 5: comes down to a very kind of basic fundamental statutory

583
00:34:49,200 --> 00:34:53,319
Speaker 5: construction question, you know, does IEPA authorize these types of

584
00:34:53,360 --> 00:34:56,120
Speaker 5: economic sanctions tariffs? And then at the same time, well,

585
00:34:56,160 --> 00:34:59,120
Speaker 5: we've got these other federal statutes, so it's not as

586
00:34:59,160 --> 00:35:01,719
Speaker 5: if that A already is going to be removed from

587
00:35:01,760 --> 00:35:04,080
Speaker 5: the president altogether. He just has to do it the

588
00:35:04,120 --> 00:35:06,680
Speaker 5: right way. So that would be an argument in favor

589
00:35:07,040 --> 00:35:10,479
Speaker 5: of banning the tariffs under a EPA. You could still

590
00:35:10,480 --> 00:35:12,520
Speaker 5: do it Trump administration. You just have to do it

591
00:35:12,560 --> 00:35:16,760
Speaker 5: the right way through these other statutes that Congresses enacted

592
00:35:17,120 --> 00:35:21,360
Speaker 5: that deal specifically with tariffs, rather than AIPA, which says

593
00:35:21,360 --> 00:35:25,279
Speaker 5: nothing in the statutory text whatsoever about tariffs. The word

594
00:35:25,320 --> 00:35:28,359
Speaker 5: tariff is never mentioned once in i EPA, And so

595
00:35:28,719 --> 00:35:30,640
Speaker 5: I think it's a way in which there could be

596
00:35:30,680 --> 00:35:32,800
Speaker 5: kind of a compromise. You know, you can't use AIPA

597
00:35:32,960 --> 00:35:36,360
Speaker 5: for these purposes, but we're not saying that tariffs are illegal.

598
00:35:36,520 --> 00:35:38,120
Speaker 5: But you just have to do it the right way

599
00:35:38,280 --> 00:35:40,160
Speaker 5: through the use of these other federal statutes.

600
00:35:40,760 --> 00:35:43,480
Speaker 2: Is it time for Congress to get involved here?

601
00:35:43,960 --> 00:35:46,480
Speaker 5: Well, they could, you know, they could, of course. You know,

602
00:35:46,560 --> 00:35:49,600
Speaker 5: we're living in a world now where there's a very

603
00:35:49,640 --> 00:35:53,600
Speaker 5: divided Congress, and the Republican majority at the House is

604
00:35:54,040 --> 00:35:58,920
Speaker 5: razor thin, and so there's no guarantee that if Congress

605
00:35:58,960 --> 00:36:05,120
Speaker 5: decided to enact legislation to permit President Trump to do

606
00:36:05,200 --> 00:36:09,280
Speaker 5: what he's doing now under AEPA, that that would be enacted,

607
00:36:09,360 --> 00:36:12,440
Speaker 5: that you know, such a legislation would pass through the

608
00:36:12,480 --> 00:36:15,920
Speaker 5: House of Representatives with this very small minority that the

609
00:36:15,960 --> 00:36:18,200
Speaker 5: majority Republicans have at this time.

610
00:36:18,520 --> 00:36:22,920
Speaker 2: Does this legal fight over AEPA fit into the wave

611
00:36:23,000 --> 00:36:28,000
Speaker 2: of lawsuits over Trump executive orders that test the limits

612
00:36:28,080 --> 00:36:29,560
Speaker 2: of presidential authority.

613
00:36:29,840 --> 00:36:32,080
Speaker 5: We're seeing it time and time again. It's just the

614
00:36:32,120 --> 00:36:36,920
Speaker 5: president pushing the boundaries of executive authority, you know, beyond

615
00:36:37,040 --> 00:36:40,719
Speaker 5: reasonable limits. He wants to accumulate as much power in

616
00:36:40,760 --> 00:36:43,920
Speaker 5: the executive branch as possible, and he's looking for every

617
00:36:43,920 --> 00:36:48,359
Speaker 5: opportunity to do so. And so he's taking you know, statutes, regulations,

618
00:36:48,400 --> 00:36:52,200
Speaker 5: whatever it might be, and he's interpreting them in the broadest,

619
00:36:52,520 --> 00:36:55,279
Speaker 5: you know, kind of most unreasonable way to afford him

620
00:36:55,280 --> 00:36:57,560
Speaker 5: that authority and power. And really it's up to the

621
00:36:57,600 --> 00:37:01,360
Speaker 5: courts to provide that check on balance on that authority

622
00:37:01,400 --> 00:37:05,480
Speaker 5: because clearly, you know, Congress has abdicated its responsibilities and

623
00:37:05,680 --> 00:37:07,800
Speaker 5: is doing little or nothing on these issues.

624
00:37:08,080 --> 00:37:11,319
Speaker 2: Thanks so much for joining me, Jimmy and sharing your insights.

625
00:37:11,640 --> 00:37:14,320
Speaker 2: That's Professor Jimmy Garoule of Notre Dame Law.

626
00:37:14,160 --> 00:37:16,560
Speaker 8: School, and that's it for this edition of The Bloomberg

627
00:37:16,680 --> 00:37:19,359
Speaker 8: Law Show. Remember you can always get the latest legal

628
00:37:19,400 --> 00:37:22,399
Speaker 8: news on our Bloomberg Law Podcast. You can find them

629
00:37:22,400 --> 00:37:27,480
Speaker 8: on Apple Podcasts, Spotify, and at www dot Bloomberg dot com,

630
00:37:27,520 --> 00:37:30,840
Speaker 8: slash podcast slash Law, and remember to tune into The

631
00:37:30,880 --> 00:37:34,880
Speaker 8: Bloomberg Law Show every weeknight at ten pm Wall Street Time.

632
00:37:35,440 --> 00:37:38,120
Speaker 8: I'm June Grosso and you're listening to Bloomberg