Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: The day I take the.
Speaker 2: Oath of office, the migrant invasion of our country ends,
Speaker 2: and the restoration of our country begins. Donald Trump energized
Speaker 2: his supporters on the campaign trail with a litany of
Speaker 2: anti immigrant statements and promises of securing the border and
Speaker 2: carrying out the largest mass deportations in US history. His
Speaker 2: election sets the stage for a crackdown on undocumented immigrants
Speaker 2: and a rollback of measures that allow some to remain
Speaker 2: in the country legally, but his plans face legal, logistical,
Speaker 2: and financial obstacles. Joining me is an expert in immigration law,
Speaker 2: Leon Fresco, a partner at Holland and Knight and the
Speaker 2: former head of the Office of Immigration Litigation at the
Speaker 2: Department of Justice during the Obama administration. Let's start with
Speaker 2: his pledge to carry out the largest nass deportations in
Speaker 2: US history. Just how would he carry that out and
Speaker 2: what would some of the obstacles be.
Speaker 1: It's going to be a multi stage process, and it's
Speaker 1: going to require an all hands on that governmental approach,
Speaker 1: because this is not just a matter of the Department
Speaker 1: of Homeland Security or ICE or the border. It's going
Speaker 1: to require the State Department, it's going to require the
Speaker 1: entire diplomatic core, negotiating with all of the countries in
Speaker 1: South America, in the Middle East, and in China that
Speaker 1: we're trying to actually deport people too. And so this
Speaker 1: is not going to be a very simple first step.
Speaker 1: There's the first issue, which is identifying people to deport.
Speaker 1: So how does one do that. There is some belief,
Speaker 1: and you've heard Tom Homan, who's the person now appointed
Speaker 1: to lead this operation, was the former ICE director, say
Speaker 1: in various contexts that this isn't going to just be
Speaker 1: a grab bag where individuals are simply apprehended for no reason,
Speaker 1: but that there's going to be a targeted effort here.
Speaker 1: So the first targeted effort would obviously be criminal non citizens.
Speaker 1: So anybody with a criminal record is going to be
Speaker 1: the number one top priority for removal. So the question is, well,
Speaker 1: when you apprehend those individuals, where do you put them?
Speaker 1: There's about forty to forty five thousand beds that are
Speaker 1: available right now for such a purpose. Obviously, if you're
Speaker 1: doing the largest deportation program in history, you're going to
Speaker 1: need a lot more beds. Where are those beds coming from.
Speaker 1: We've heard the idea that that could be a military basis,
Speaker 1: that there would be barrack for that purpose. So fine,
Speaker 1: you place people in those military barracks, you have them
Speaker 1: in detention, you put them in detention proceeding, and the
Speaker 1: question is will there be a place to actually deport
Speaker 1: those people to when this is all said and done.
Speaker 1: Will there be countries that are willing to actually accept
Speaker 1: these individuals? So that's where again, the State Department is
Speaker 1: going to have to play in. Secondly, are you going
Speaker 1: to need to do a whole due process deportation hearing
Speaker 1: where these hearings are currently backed up by seven years
Speaker 1: in the immigration court? Or will Trump be able to
Speaker 1: get away with using what's called the Alien Enemies Act,
Speaker 1: which is a law that's been around since the late
Speaker 1: seventeen hundred which allows deportation without due process. But you
Speaker 1: have to show that a country is specifically trying to
Speaker 1: infiltrate the United States with people designed to destabilize the
Speaker 1: United States. So will that be reviewable in a court
Speaker 1: of law because courts have said that things like that
Speaker 1: in the past are political questions that are not reviewable.
Speaker 1: Will they be reviewable, and if they are reviewable, will
Speaker 1: courts actually say that any country people are from is
Speaker 1: actually doing this on purpose, is actually sending criminal foreign
Speaker 1: national into the United States for the purpose of destabilizing
Speaker 1: the country. So all of those are questions that are
Speaker 1: going to have to be grappled with pretty early on
Speaker 1: in order to determine whether such an operation could be successful.
Speaker 2: According to the Pew Research Center, eleven million immigrants were
Speaker 2: living illegally in the country in twenty twenty two, and
Speaker 2: more than two million have entered illegally since then. I mean,
Speaker 2: will it be difficult for ICE to find those who
Speaker 2: are here illegally?
Speaker 1: Well, believe it or not, that's actually the easy part
Speaker 1: these days. With all of the artificial intelligence that ICE
Speaker 1: has procured in the last several years and databases and documents,
Speaker 1: pretty much anyone who's left any kind of digital footprint,
Speaker 1: ICE knows where they are, either from their cell phone,
Speaker 1: their car, whether they ordered a pizza, anything of this nature.
Speaker 1: So unless you've been living in the middle of the
Speaker 1: woods as a hermit, ICE will be able to find
Speaker 1: you if it wants to find you, relatively quickly, So
Speaker 1: that's sort of a twentieth century concern. At this point,
Speaker 1: the finding is the easy part. The question is what
Speaker 1: do you do when you find the person? Where do
Speaker 1: you literally detain the person and where do you actually
Speaker 1: deport the person? And that's where the Trump administration is
Speaker 1: going to have their work cut out for them.
Speaker 2: Which countries have not agreed to receive deportation flights, So right.
Speaker 1: Now it's almost impossible to deport anyone to China, which
Speaker 1: is a big source of our removal orders. We have
Speaker 1: tens of thousands of not over one hundred thousand removal
Speaker 1: orders for people who can be deported to China, but
Speaker 1: China won't accept those individuals. Cuba is another big one. Cuba.
Speaker 1: There's probably hundreds of thousands of Cubans who can be
Speaker 1: deported to Cuba, but Cuba has not and probably will
Speaker 1: not accept people. Given the country is almost in complete ruins,
Speaker 1: and there's another hurricane potentially coming there and who knows,
Speaker 1: and so the country has so destabilized, accepting hundreds of
Speaker 1: thousands of people is likely not an option there. Venezuela
Speaker 1: has not accepted recently people to be deported back to Venezuela.
Speaker 1: Haiti basically has no government they just today fired their
Speaker 1: prime minister, and the question is what do you do
Speaker 1: Visa vi Haiti and how do you deport people there.
Speaker 1: Nicaragua is another country that doesn't let people get deported
Speaker 1: back to Nicaragua from the United States. And so those
Speaker 1: are just some examples, but pretty much any country, if
Speaker 1: you're going to start doing large numbers of people may
Speaker 1: start objecting to that as saying, look, you're going to
Speaker 1: destabilize our country. Because United States is a big country
Speaker 1: with three hundred and fifty million people, but countries with
Speaker 1: a million people, if you suddenly put in fifty thousand
Speaker 1: deportees who are all criminals, that could lead to quite
Speaker 1: the de stabilization in those countries. And so they may
Speaker 1: do everything possible to try to thwart these deportations. Not
Speaker 1: to say that the Trump administration will think that that's
Speaker 1: something to be sympathetic about, but it becomes a challenge
Speaker 1: if they actually can't deport people to these countries.
Speaker 2: First of all, Trump said on NBC, I think that
Speaker 2: there's no price tag on this, but I saw estimates
Speaker 2: that put the cost at more than three hundred billion dollars.
Speaker 1: Well, it depends what kinds of cost you're incorporating into this.
Speaker 1: So first of all, there's the normal cost that everyone
Speaker 1: would agree to include, which are the cost of detention,
Speaker 1: which include obviously care and feeding and medicine and all
Speaker 1: of that for the people while they're in custody, the
Speaker 1: cost of the actual removal itself, the planes that many
Speaker 1: times ICE use as chartered planes to do this, all
Speaker 1: of that. But then they talk about the cost of
Speaker 1: what happens then to the economy, because interestingly, an undocumented
Speaker 1: person when they're working in the United States is a
Speaker 1: net positive to the US federal budget because what's happening
Speaker 1: is they're paying taxes and they're not getting any benefits
Speaker 1: because they don't qualify for any benefits. And so this
Speaker 1: is actually something that the Congressional Budget Office talks about
Speaker 1: all the time. It's only when people get status and
Speaker 1: can get benefits that they become potentially a net negative
Speaker 1: to the budget. But when you remove all these undocumented
Speaker 1: workers from the economy, you actually create a larger budget
Speaker 1: deficit hole, and so that's also being counted toward those
Speaker 1: three hundred billion dollars.
Speaker 2: There are some immigration policies that Trump wants to put
Speaker 2: in place. Again, why does the remain in Mexico policy.
Speaker 2: Explain what that is and tell us how difficult it
Speaker 2: would be to restore it well.
Speaker 1: Under the remain in Mexico policy, the way that would
Speaker 1: work is that an individual enters the United States and
Speaker 1: asks for asylum. Their asylum application is put into the
Speaker 1: system and is put in line. But where you wait
Speaker 1: is in Mexico. You don't wait in the United States.
Speaker 1: And so that was finally allowed by the Supreme Court
Speaker 1: as legal in twenty nineteen and was about to be
Speaker 1: implemented in earnest by the Trump administration until COVID happened,
Speaker 1: And then that didn't end up happening because what happened
Speaker 1: was instead of putting the cases in the line, the
Speaker 1: Trump administration simply just rejected people. And that actually continued
Speaker 1: into the Biden administration, and, believe it or not, as
Speaker 1: happening now. So the remain in Mexico policy will only
Speaker 1: be needed if the ban that is currently in place,
Speaker 1: which the Biden administration has in place at the moment,
Speaker 1: is overturned by the courts. Now it is likely to
Speaker 1: be overturned by the courts. That case has sort of
Speaker 1: been slow locked because of the election. I don't think
Speaker 1: that the people suing wanted to destabilize the border situation
Speaker 1: right before the election. But now that the election has happened,
Speaker 1: that case is back up in the forefront. And if
Speaker 1: the Biden border policy is enjoined, which is essentially a
Speaker 1: band nobody can apply for asylum right now who entered
Speaker 1: I legally into the United States. If that van is
Speaker 1: taken away by the courts and said that that ban
Speaker 1: is illegal, that's when the Trump administration will need to
Speaker 1: use remain in Mexico. And the obstacle there is that
Speaker 1: Mexico has to agree to do this, and a couple
Speaker 1: of things have happened since the last Trump administration. The
Speaker 1: Supreme Court of Mexico has said that that's not possible
Speaker 1: and it's not legal. But the question will be what
Speaker 1: does that mean if Trump threatens Mexico with fifty percent
Speaker 1: tariffs on their cars unless they do this, does the
Speaker 1: new president of Mexico, Miss Shinbaum, actually then say, well,
Speaker 1: we're gonna have to figure something out with our Supreme
Speaker 1: Court and everything else to make this a possibility, because
Speaker 1: we don't want fifty percent tariffs on our cars. So
Speaker 1: all of these levers are in play. To try to
Speaker 1: figure out whether remain in Mexico needs to be placed
Speaker 1: back into place and can it be played back at
Speaker 1: the place.
Speaker 2: Next, let's discuss humanitarian parole, which gives immigrants from certain
Speaker 2: countries temporary permission to live and work in the US,
Speaker 2: and Biden has made sweeping use of this status. How
Speaker 2: many immigrants are here, would you say under humanitarian parole?
Speaker 1: Well, between Ukraine and Cuba and Haiti and Nicaragua and Venezuela,
Speaker 1: we're probably talking about several hundred thousand people. You know,
Speaker 1: two to three hundred thousand people have been let in
Speaker 1: with these humanitarian paroles that when they expire they will
Speaker 1: not have lawful status anymore.
Speaker 2: So that would be pretty easy for Trump to get
Speaker 2: rid of them.
Speaker 1: Correct. There's a couple of things there, which is that
Speaker 1: when those paroles expire, he will not renew them. And
Speaker 1: then the question is what will those people do? Will
Speaker 1: they apply for asylum? Will some of them be eldest?
Speaker 1: You know, for the Ukrainians, for instance, what does an
Speaker 1: asylum system look like? Because if the war's over, then
Speaker 1: they can go back to Ukraine. There's nobody persecuting them.
Speaker 1: And if the war's not over, what is the status
Speaker 1: of those planes still because they're still not technically being
Speaker 1: persecuted in Ukraine, they would just be evading a war,
Speaker 1: and so it's not clear what would happen to those
Speaker 1: asylum planes. And then with regard to Cuba, Haiti, Nicaragua
Speaker 1: and Venezuela, I mean, asylum planes are possible from those countries.
Speaker 1: But will all those people apply for asylum. One would
Speaker 1: assume they would just to slow things down. How many
Speaker 1: of those will ultimately be meritorious? Will the government place
Speaker 1: those cases in the front of the line to get
Speaker 1: them out or will they be placed in the back
Speaker 1: of a seven and they hear current line? Those are
Speaker 1: all questions left to be answered.
Speaker 2: Coming up next, I'll continue this conversation with Leon Fresco. Well,
Speaker 2: immigration officials in the second Trump administration avoid some of
Speaker 2: the problems in the first. This is Bloomberg. Donald Trump
Speaker 2: has pledged to crack down swiftly on illegal immigration, including
Speaker 2: by curbing asylum, supporting millillions of immigrants in the United
Speaker 2: States illegally, and even restarting construction of the Wall. I've
Speaker 2: been talking to immigration law expert Leon Fresco about some
Speaker 2: of the challenges Trump will face both legal, logistical and financial.
Speaker 2: Leon can Trump just say eh, we're not doing asylum anymore.
Speaker 1: They can for the people crossing the border, but once
Speaker 1: you're inside the United States, you can apply for asylum,
Speaker 1: and there's nothing that the government can do to stop that.
Speaker 1: And so all of these people who have been parolled
Speaker 1: in I have every right to ask for asylum. And
Speaker 1: the question will be whether those cases get prioritized so
Speaker 1: that they get moved along first, or whether they get
Speaker 1: placed in the back of the line because they want
Speaker 1: to keep the border crossing cases first, and these people
Speaker 1: have already crossed the border, and so that's going to
Speaker 1: be a very complicated challenge for the Trump administration to
Speaker 1: try to determine.
Speaker 2: Biden has also used something called temper Very Protected Status,
Speaker 2: which is another program that provides work permits and a
Speaker 2: deportation shield for immigrants from certain countries like Haiti.
Speaker 1: Correct there's also hundreds of thousands of people here on
Speaker 1: temporary protected status from over a dozen countries at this point.
Speaker 1: And here again, when Trump was president between twenty seventeen
Speaker 1: and twenty twenty, he tried to cancel them all. There
Speaker 1: was lawsuits, and those lawsuits ended up getting settled during
Speaker 1: the Biden administration. They didn't end up getting resolved during
Speaker 1: the Trump administration, and so he will have to again
Speaker 1: try to circumvent the moustrom of these TPS litigation and
Speaker 1: lawsuits to try to see if he can do it.
Speaker 1: But if he can do it and allow them to expire,
Speaker 1: then that's going to be another few hundred thousand people
Speaker 1: that simply lose their status when that expires. That includes
Speaker 1: the famous Asians in Springfield, Ohio that were of such
Speaker 1: a note during the election. And if all of those
Speaker 1: folks lose their status again, they'll probably all end up
Speaker 1: applying for asylum and hoping that they can survive the
Speaker 1: four years of the Trump administration without their cases being heard.
Speaker 1: And that's going to be very interesting to see now.
Speaker 1: Of course, the Trump administration may try to circumvent that
Speaker 1: with the Alien Enemies Act, but again will of course
Speaker 1: allow them to use the Alien Enemies Act for some
Speaker 1: of these countries where it's clear that those countries probably
Speaker 1: didn't order a migration for the purposes of destabilizing the
Speaker 1: United States. Now, the Trump administration will try as hard
Speaker 1: as it can to build such a record, but their
Speaker 1: best hope will be that the court view this as
Speaker 1: unreviewable political questions that can even be reviewed, in which case,
Speaker 1: if that happens, even if the Trump administration was wrong
Speaker 1: about why it invoked the Alien Enemies Act, if an
Speaker 1: invocation of the Alien Enemies Act can't actually be reviewed
Speaker 1: as a political question, then it will be able to
Speaker 1: place millions of people into deportation quite quickly. Now, again,
Speaker 1: they will have to be able to execute those orders
Speaker 1: to these countries. If they decide that, fine, what we'll
Speaker 1: do is we'll just detain people in the middle of
Speaker 1: nowhere in military barracks until they get thick enough that
Speaker 1: they leave on their own. And so these are all
Speaker 1: potential options that will have to just wait and see
Speaker 1: how it plays us.
Speaker 2: From what we've been talking about leon, it seems like
Speaker 2: it's going to be difficult for him to carry out
Speaker 2: these mass deportations.
Speaker 1: There will be the issue of placing people in final
Speaker 1: order status, will they be able to do that? And
Speaker 1: then there will be the question of actually moving people
Speaker 1: outside the United States, which is a separate, hard question.
Speaker 1: So yes, it's going to have to be the top
Speaker 1: priority of the State Department, the Justice Department, and the
Speaker 1: Homeland Security Department in order for that to happen. Probably
Speaker 1: it will be, there's no doubt, but it's going to
Speaker 1: require a whole of government approach that we've never seen before.
Speaker 1: And you know, the real situation that will happen is
Speaker 1: that as these stories start to get out in the media,
Speaker 1: it starts to derail the momentum for this especially everyone
Speaker 1: knows their person that they know that's not one of
Speaker 1: the bad ones that needs to be deported, but that's
Speaker 1: quote unquote one of the good ones. Why is the
Speaker 1: government going after this person? They should be going after
Speaker 1: the bad people. But it turns out most of the
Speaker 1: people won't qualify as the bad people because they'll have
Speaker 1: one or two people who say no, no, no, no, no,
Speaker 1: that's my nanny or that's my person who takes care
Speaker 1: of my parents, my family, et cetera. And it's going
Speaker 1: to be very interesting to see how that plays out.
Speaker 2: Will you explain the public charge definition under Biden? What
Speaker 2: that is?
Speaker 1: All that goes all the way back to the late
Speaker 1: eighteen hundred called the public charge ground of an admissibility,
Speaker 1: which says that if you're trying to get legal status
Speaker 1: in America, you can be precluded from doing so by
Speaker 1: the government if the government thinks you're going to be
Speaker 1: dependent upon the taxpayers and that's self sufficient. And so
Speaker 1: there was a rule that was put in place during
Speaker 1: the prior Trump administration to really strengthen that and to
Speaker 1: say if anyone hadn't gotten basically a history of employment
Speaker 1: in their home country and a history of speaking English,
Speaker 1: they could be subject to this public charge ground. And
Speaker 1: so that had actually been allowed by the Supreme Court
Speaker 1: until it was rescinded by the Biden administration. So it
Speaker 1: should be relatively quick for them to put back this
Speaker 1: public charge ground and to really make it difficult for
Speaker 1: anybody who doesn't speak English, or has any history at
Speaker 1: all of getting any kind of government benefits, or is
Speaker 1: a single person that's completely unemployed and doesn't have a relative,
Speaker 1: so for instance, there's not some sort of homemaker where
Speaker 1: there's another spouse who's making the money. Those people would
Speaker 1: be fine, but they're just an individual who's one person
Speaker 1: without a job. All of those people would be subject
Speaker 1: now to this public charge ground that would not let
Speaker 1: them get legal status in the United States.
Speaker 2: So during his first term, Trump's immigration actions were repeatedly
Speaker 2: stymied in court because they bypassed federal rulemaking requirements under
Speaker 2: the Administrative Procedures Act. Do you think that in a
Speaker 2: second term, You know, they'll know better and they'll go
Speaker 2: buy the Administrative Procedures Act.
Speaker 1: So the second term is going to look a lot
Speaker 1: different than the first for a couple of reasons. First,
Speaker 1: the court has shrunk significantly who has standing to file
Speaker 1: these lawsuits. So a lot of times the states, for instance,
Speaker 1: when there was a travel ban, rival ban was actually
Speaker 1: filed by the state of Hawaii and the State of Washington.
Speaker 1: States are going to have a lot less ability to
Speaker 1: have standing than before, although it's not fully precluded, but
Speaker 1: it's been shrunk. So that's number one, and then number two.
Speaker 1: The courts also have dramatically reduced when injunctive relief is available.
Speaker 1: So what the courts have been doing is they've been
Speaker 1: saying injunctive relief is only going to be available on
Speaker 1: a case by case basis, and there won't be this
Speaker 1: programmatic nationwide injunction that you can just go and get
Speaker 1: in one district court and that'll be it. You'll actually
Speaker 1: have to go through a process where a bunch of
Speaker 1: individuals get injunctive relief and then maybe that stops the policy.
Speaker 1: And so because of that, that's all going to strengthen
Speaker 1: Trump's hands while he's doing this deportation.
Speaker 2: What do you think of Trump making Tom Homan the
Speaker 2: borders are He's the official behind the family separations during
Speaker 2: the first Trump administration.
Speaker 1: Right, Yeah, So I'm personally a bit conflicted because I've
Speaker 1: worked with Tom Holman when I was a Department of Justice,
Speaker 1: and I think he's a very nice man, and him
Speaker 1: and I get along very well and have a wonderful relationship.
Speaker 1: So just for me, a question of whether you agree
Speaker 1: with the policy that's going to be put in place
Speaker 1: because Tom Holman, the thing I can say about him
Speaker 1: is he has always been, under many different presidents, a
Speaker 1: public servant who salutes the flag, and when people have
Speaker 1: given him a lawful order, he has executed the lawful order,
Speaker 1: whether it be prosecutorial discretion or whether it be deportation. Now,
Speaker 1: while he has gone off on his own as a
Speaker 1: private citizen, he has taken a very restrictionist talking point.
Speaker 1: And so this is what he's being charged to do now,
Speaker 1: is to lead the largest deportation program in history. To
Speaker 1: be fair to him and to President Trump, they did
Speaker 1: campaign on that, so it's not a secret. Anybody who
Speaker 1: wanted that to be avoided should not have voted for
Speaker 1: President Trump. But now that President Trump has won and
Speaker 1: he campaigned on that promise, this is what Tom Holman
Speaker 1: is going to be doing now. The one thing I
Speaker 1: will say is because he comes from Ice and because
Speaker 1: he has lived this for several decades, he understands the
Speaker 1: actual challenges from a legal and logistical standpoint in a
Speaker 1: way that appointing somebody who's a more political person but
Speaker 1: less of a detail oriented person wouldn't know. And that's
Speaker 1: why I've heard Tom Holman say things like, look, we're
Speaker 1: gonna have priorities, We're going to have certain people that
Speaker 1: we look at first, because at the end of the day,
Speaker 1: that's actually how you have to do this. You can't
Speaker 1: just willy nearly round up millions of people. That's not
Speaker 1: going to be operationally possible.
Speaker 2: Here, let me ask you the big question, leon which
Speaker 2: you have addressed in different ways in our conversation. Will
Speaker 2: Trump be able to carry out the largest deportation of
Speaker 2: immigrants in our history?
Speaker 1: Here is what I said. I think because people don't
Speaker 1: remember what happened in two thousand and seven. Two thousand
Speaker 1: and seven was the last time there was actually any
Speaker 1: significant robust immigration enforcement in the middle of the streets.
Speaker 1: Even Trump, to his credit, actually from twenty seventeen to
Speaker 1: twenty twenty didn't have these sort of large scale rays
Speaker 1: of work fits or anything like that. That didn't actually
Speaker 1: happen a lot during the Trump administration. And so the
Speaker 1: point is when that last happened, which was in two
Speaker 1: thousand and seven under George W. Bush, that puts such
Speaker 1: fear in the immigrant community that people stopped going to work,
Speaker 1: people were hiding. It was very complicated, and so what
Speaker 1: I think they're actually trying to accomplish more than anything,
Speaker 1: is like what you're seeing in all these other areas
Speaker 1: with foreign policy and with tariffs and where everything else
Speaker 1: you saw laid down a marker that this is going
Speaker 1: to be the worst thing you've ever seen. And what
Speaker 1: you're hoping it does is it incentivizes enough people to
Speaker 1: self support that you're actually getting banged for the buck
Speaker 1: from that. So I think that's what you're gonna see.
Speaker 1: You are going to see a more robust effort to
Speaker 1: remove people. But I think at the end of the day,
Speaker 1: if four hundred thousand people end up getting removed in
Speaker 1: twenty twenty five. That might be ambitious based on where
Speaker 1: the infrastructure is now, and so we're not talking about
Speaker 1: ten million, twenty million, whatever million people we'd be talking about.
Speaker 1: But the hope is that if it's done in a
Speaker 1: way that creates enough nervousness in the community, that individuals
Speaker 1: will decide that they can't live with this level of
Speaker 1: nervousness and they would take matters into their own hands
Speaker 1: and leave the country a lot of moving parts.
Speaker 2: That's for sure. Thanks so much, Leon. That's Leon Fresco,
Speaker 2: a partner at Honda Knight. Donald Trump enters his second
Speaker 2: term having appointed three members of the Supreme Court, an
Speaker 2: achievement that led to the current conservative supermajority, which eliminated
Speaker 2: the constitutional right to abortion and slashed the power of
Speaker 2: federal agencies. Trump's campaign pledges, including tariffs, mass deportations, and
Speaker 2: environmental rollbacks, will face legal challenges, and the Court transformed
Speaker 2: by Trump now sits as one of the few potential
Speaker 2: checks on his authority as he returns to the White House.
Speaker 2: Joining me is Bloomberg new Supreme Court reporter Greg Storr,
Speaker 2: who's written about the possible implications. So, Greg, as you write,
Speaker 2: Trump and the Court have had a complicated relationship in
Speaker 2: the past, tell us about it.
Speaker 3: Yeah, well, this is a Supreme Court that, of course,
Speaker 3: four years ago, refused to intervene in the twenty twenty
Speaker 3: election when he very much wanted them to try to
Speaker 3: overturn Joe Biden's victory. It's also courte that during his
Speaker 3: time as president gave him somewhat mixed results. You know,
Speaker 3: if you look just like an immigration sphere. They upheld
Speaker 3: this so called travel band that's restricted entry into the
Speaker 3: country from certain countries, many of them predominantly Muslim. But
Speaker 3: they also ruled against them on putting a citizenship question
Speaker 3: on the census. And I'm trying to end Barack Obama's
Speaker 3: so called DACA program. So it's not a court that
Speaker 3: has given him the sort of knee jerk we side
Speaker 3: with you sort of rulings that he has suggested he wants.
Speaker 2: Now, this surprised me. According to a database compiled by
Speaker 2: professors at Washington University in Saint Louis and Penn State University,
Speaker 2: his previous administration had the lowest win rate at the
Speaker 2: Supreme Court in modern history.
Speaker 3: Yeah, it surprises me every time I look at it.
Speaker 3: The researchers include Lee Epstein at Washington University of Saint Louis,
Speaker 3: and it shows that four years Donald Trump succeeded only
Speaker 3: forty two percent of the time. Those are cases where
Speaker 3: either he or his administration were a party, and just
Speaker 3: throw out a few other numbers. Barack Obama sixty eighty
Speaker 3: fifty percent of the time, Joe Biden so far fifty
Speaker 3: four percent of the time, and then you go further
Speaker 3: back and presidents do much much better. So it's pretty striking.
Speaker 3: And of course not all those cases are hugely important.
Speaker 3: Ones are ones that we might talk about. But in
Speaker 3: terms of sort of the run of the mill cases,
Speaker 3: it is a court that is not, as I said,
Speaker 3: necessarily going to need your side with Donald Trump.
Speaker 2: Of course, there is a difference. In his first term,
Speaker 2: he didn't have this conservative super majority that he has now.
Speaker 3: Yes, that is an excellent point that I probably should
Speaker 3: have mentioned earlier as a qualification. So when I talked
Speaker 3: about a couple of those immigration cases, the citizenship question
Speaker 3: on the twenty twenty census, the case involving the so
Speaker 3: called DOCA program, which allows one hundreds of thousands of
Speaker 3: young people who came into the country as children let
Speaker 3: them stay in the country. So when the Court said
Speaker 3: Donald Trump can't block that. Both of those decisions were
Speaker 3: with a five justice of his majority and with John
Speaker 3: Roberts casting the key vote siding with the liberal in
Speaker 3: those cases. Since then, the Court has shifted even further
Speaker 3: to the right. When Bitter Ginsburgh died and Trump replaced
Speaker 3: her with Amy Coney Barrett, we got a six conservative.
Speaker 3: So the dynamic has changed and Trump will have perhaps
Speaker 3: a little bit of an easier path on some of
Speaker 3: these closely divided cases going forward.
Speaker 2: Well, you never know, So let's talk about some of
Speaker 2: the areas that could test the Supreme Court in Trump's
Speaker 2: second term. So Trump has vowed to impose a ten
Speaker 2: to twenty percent tariff on all imported goods. Remind us
Speaker 2: about what happened during his first term with his steal tariffs.
Speaker 3: So during his first term, Donald Trump imposed a twenty
Speaker 3: five percent tariff on imported steel. Lower Court said that
Speaker 3: was within his authority under something known as Section two
Speaker 3: thirty two of the US Trade Laws, and that says
Speaker 3: the president has broad discretion to impose teriffs for national
Speaker 3: security reasons, and the Supreme Court let those decisions stands.
Speaker 3: It didn't question those tariffs, So you know, one might
Speaker 3: be inclined to say, oh, the Supreme Court is going
Speaker 3: to defer to down Trump on tariffs, But now he's
Speaker 3: talking about imposing across the board terriffs ten to twenty
Speaker 3: percent on everything that comes into the country, and that's
Speaker 3: going to be harder to justify as a national security measure. Now,
Speaker 3: there are other provisions of the trade laws, but the
Speaker 3: bottom line is that it's not something where it's clear
Speaker 3: that the Supreme Court is going to be comfortable with
Speaker 3: the president having that much discretion, either because it reads
Speaker 3: the law as limiting his discression or because there's a
Speaker 3: constitutional matter. The Court doesn't think Congress can give the
Speaker 3: president quite that much discrestion to just impose on his
Speaker 3: own these sweeping tariffs.
Speaker 2: One of the key points in his run for office
Speaker 2: was that he was going to crack down on immigration,
Speaker 2: and Trump actually promised mass deportations of undocumented immigrants. But
Speaker 2: might he face some legal problems with those mass deportations.
Speaker 3: Nay, sure might. The nation's immigration laws, the Immigration Natralization Act,
Speaker 3: says that there are certain things the executive branch can do,
Speaker 3: and certain things it doesn't authorize the executive branch to do.
Speaker 3: So he's going to have to make his case under
Speaker 3: those laws, and then he also will have the Constitution
Speaker 3: that he has to deal with and the due process clause.
Speaker 3: Under established law, the president can't just pluck somebody, or
Speaker 3: the executive branch can't just pluck somebody and immediately shift
Speaker 3: them out of the country. They have a right to
Speaker 3: certain process. And so when you're talking about supporting millions
Speaker 3: and millions of people, those are going to be real
Speaker 3: legal constraints. And given the mixed record he had at
Speaker 3: the Supreme Court previously on immigration, it's fair to think
Speaker 3: that it won't be a rubber staff at the Supreme Court.
Speaker 3: There may be some real limit on what he can do.
Speaker 2: Now. I don't know where in his lineup of importance
Speaker 2: this is. But he's also said that he wants to
Speaker 2: end birthright citizenship for the children of undocumented immigrants. I'm
Speaker 2: not even sure you know what that entails.
Speaker 3: Yeah, and so with all these things, Donald Trump has
Speaker 3: said a lot of things, and we'll have to wait
Speaker 3: and see exactly what he tries to do. The problem
Speaker 3: is that there's a constitutional provision that has long but
Speaker 3: understood as meaning that if you're born on US soil,
Speaker 3: you are an American citizen. Now, that long standing understanding
Speaker 3: is not universal. There are folks who argue that there's
Speaker 3: a different way to interpret that provision to borrow people
Speaker 3: who come in intentionally to have a baby in the country.
Speaker 3: But in any event, that one may be especially big
Speaker 3: uphill climb that Donald Trump does pursue.
Speaker 2: That energy in the environment, he's expected to have almost
Speaker 2: diametrically opposed views from Biden. And what's interesting you point
Speaker 2: this out is that you know, the Supreme Court has
Speaker 2: been for the last few years attacking and trying to
Speaker 2: dismantle federal regisulatory power. So how does that help or
Speaker 2: hurt him?
Speaker 3: Yeah, it could come back to bite him. Let's start
Speaker 3: with that big decision known as Low for Dry at
Speaker 3: the Supreme Court just handed down that says that it's
Speaker 3: no longer going to defer to agencies on the meaning
Speaker 3: of ambiguous statute. That is a ruling that toanents of
Speaker 3: regulation generally liked. But it's also a ruling that could
Speaker 3: come back and bte a conservative administration a deregulatory administration
Speaker 3: if what the Trump administration says, either through the EPA
Speaker 3: or some other agency that says, here's how we interpret
Speaker 3: this law. It means we're going to have less regulation
Speaker 3: than we used to the Supreme Court under this ruling
Speaker 3: will say, you know, we're actually going to be the
Speaker 3: one that determine what that law means and what you
Speaker 3: can and cannot do. So it may mean, ironically, perhaps
Speaker 3: closer scrutiny of what the Trump administration is trying to
Speaker 3: do at its administrative agencies.
Speaker 2: So now let's just discuss some of the the cases
Speaker 2: that the Court rejected today, one involving New York City's
Speaker 2: rent control system, which has been up at the Court before.
Speaker 3: It has the Court has turned away on three different
Speaker 3: occasions now appeals that challenge the rent control restrictions as
Speaker 3: being unconstitutional, and today the Court turned away two appeals,
Speaker 3: one from property owners in New York City and Yonkers,
Speaker 3: another by landmards in Westchester County. They were challenging various
Speaker 3: aspects of New York's sweeping rent control rules, including the
Speaker 3: restrictions on landlords we want to reclaim units for personal
Speaker 3: use or want to convert them to condos or co
Speaker 3: ops to the court as is usually the case when
Speaker 3: it denies a petition. Made no comment, gave me no explanation,
Speaker 3: but one Justice Neil Gorsich said that he would have
Speaker 3: heard the appeals, so I strongly suspected we will see
Speaker 3: future challenges and ultimately it's possible the court will agree
Speaker 3: to take them up. This is an issue whether these
Speaker 3: restrictions unconstitutionally take private property without just compensation. It's an
Speaker 3: issue that many people feel very strongly about, and I
Speaker 3: would be surprised if we don't see more appeals challenging
Speaker 3: the system now.
Speaker 2: Former Trump White House Chief of Staff Mark Meadows is
Speaker 2: still facing that Georgia election interference case, and he got
Speaker 2: turned down by the Supreme Court today as well.
Speaker 3: Yes, and a preface by saying the prosecution is on
Speaker 3: hold for unrelated reasons. Appeals court in Georgia is considering
Speaker 3: whether the prosecutor finding Willis needs to be removed because
Speaker 3: of a romantic relationship she had with one of the prosecutors.
Speaker 3: But what the Supreme Court dealt with is Mark Meadows
Speaker 3: was trying to move the prosecution from state court in
Speaker 3: the federal court that potentially would give Meadows a better
Speaker 3: jury pool. If this case were to go to trial,
Speaker 3: he was invoking with known as federal officer removal, which
Speaker 3: basically means if you're a federal officer, you might be
Speaker 3: able to say, hey, this case against me should be
Speaker 3: in federal court. And a lower court said, now you're
Speaker 3: no longer a government employee and the stuff you would
Speaker 3: allegedly did was not official business, so you can't use
Speaker 3: this federal officer removal power to shift the federal court.
Speaker 3: The Supreme Court today said we're not going to take
Speaker 3: your appeal, Mark Meadows. One thing just to note, because
Speaker 3: this is a state law prosecution, this is not a
Speaker 3: case where Donald Trump, when it becomes president, can make
Speaker 3: it go away. You can't order prosecutors to drop it.
Speaker 3: It's at least possible that this case will go forward,
Speaker 3: perhaps not against Donald Trump, but against other defendants in
Speaker 3: this case. They are all accused of taking part in
Speaker 3: this scheme to overturn the twenty twenty election results, and
Speaker 3: Georgia prosecutors say they violated a state racketeering law.
Speaker 2: The Supreme Court also turned down a lot of turndowns today,
Speaker 2: a case that curbs the Justice Department's ability to prosecute
Speaker 2: people and companies.
Speaker 3: For bid rigging is basically what it sounds like, which is,
Speaker 3: if companies that are bidding for sane government contract agree
Speaker 3: that one of the two of them is going to
Speaker 3: get the low bid, that can violate the anti trust laws.
Speaker 3: And the long standing understanding, at least according to the
Speaker 3: Justice Department, was if you do that, if you agree
Speaker 3: with a competitor on what your bids are going to be,
Speaker 3: that is basically automatically in anti trust violation, and we
Speaker 3: will prosecute you criminally for that. And a federal appeals
Speaker 3: court in this case coming out of North Carolina said no,
Speaker 3: it's not automatically an anti trust violation. You have to
Speaker 3: look at whether there were potentially pro competitive justifications. So
Speaker 3: this is a case where the two companies also had
Speaker 3: supply or arrangements, so they were bidding for these construction contracts,
Speaker 3: and one of the companies, in addition to bidding on
Speaker 3: the contract, would also supply the needed aluminum to the
Speaker 3: other company. And so what the Fourth Circuit said was
Speaker 3: you have to look at all that stuff to figure
Speaker 3: out whether the agreements on what the bids were going
Speaker 3: to be was actually an anti trust violation. The Justice
Speaker 3: Department went to the Supreme Court and said that's a
Speaker 3: big deal and it's going to make it much harder
Speaker 3: for us to press these criminal price fixing, criminal bid
Speaker 3: rigging prosecutions. And the Supreme Court said, sorry, we're not
Speaker 3: going to hear your appeal, so that tougher standards and
Speaker 3: the Justice Department to meet is now for the foreseeable
Speaker 3: feature in place in five minute Atlantic States. It's something
Speaker 3: to watch because it could be an issue that crops
Speaker 3: up in other circuits and eventually the Supreme Court may
Speaker 3: have to decide it.
Speaker 2: Thanks so much, Greg, always a pleasure. That's Bloomberg Supreme
Speaker 2: Court Reporter Greg Store And that's it for this edition
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