1
00:00:03,200 --> 00:00:09,600
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:09,760 --> 00:00:14,000
Speaker 1: The Supreme Court decided unanimously in favor of Donald Trump,

3
00:00:14,480 --> 00:00:18,280
Speaker 1: ruling that Colorado can't kick him off the presidential ballot

4
00:00:18,520 --> 00:00:21,520
Speaker 1: and putting an end to efforts across the country to

5
00:00:21,680 --> 00:00:25,119
Speaker 1: ban Trump under Section three of the Fourteenth Amendment, a

6
00:00:25,280 --> 00:00:31,360
Speaker 1: rarely used constitutional provision barring insurrectionists from holding office. Trump

7
00:00:31,400 --> 00:00:32,960
Speaker 1: thanked the Supreme Court.

8
00:00:33,280 --> 00:00:37,760
Speaker 2: And they worked long, they worked hard, and frankly, they

9
00:00:37,800 --> 00:00:42,640
Speaker 2: worked very quickly on something that will be spoken about

10
00:00:42,640 --> 00:00:45,000
Speaker 2: one hundred years from now and two hundred years from

11
00:00:45,040 --> 00:00:49,280
Speaker 2: now extremely important. Essentially, you cannot take somebody out of

12
00:00:49,320 --> 00:00:52,159
Speaker 2: a race because an opponent would like to have it

13
00:00:52,240 --> 00:00:52,720
Speaker 2: that way.

14
00:00:53,280 --> 00:00:57,720
Speaker 1: Contrary to Trump's interpretation, what the Court actually ruled was

15
00:00:57,760 --> 00:01:01,000
Speaker 1: that a state can't bar a candidate for federal office

16
00:01:01,240 --> 00:01:04,760
Speaker 1: on the grounds that that person is an insurrectionist. It's

17
00:01:04,840 --> 00:01:08,440
Speaker 1: Congress who has the exclusive power to enforce Section three.

18
00:01:09,080 --> 00:01:13,280
Speaker 1: The unsigned opinion mirrors the concerns expressed by the justices

19
00:01:13,400 --> 00:01:18,840
Speaker 1: during oral arguments about a state by state determination of disqualifications.

20
00:01:19,000 --> 00:01:20,560
Speaker 1: Here's Justice Elena Kagan.

21
00:01:21,080 --> 00:01:23,400
Speaker 3: I think that the question that you have to confront

22
00:01:23,880 --> 00:01:26,480
Speaker 3: is why a single state should decide who gets to

23
00:01:26,520 --> 00:01:29,600
Speaker 3: be president of the United States. In other words, you know,

24
00:01:29,720 --> 00:01:32,959
Speaker 3: this question of whether a former president is disqualified for

25
00:01:33,040 --> 00:01:38,240
Speaker 3: insurrection to be president again is just say it. It

26
00:01:38,319 --> 00:01:39,680
Speaker 3: sounds awfully national.

27
00:01:39,840 --> 00:01:43,120
Speaker 1: Joining me is elections law expert Richard Brefalt, a professor,

28
00:01:43,200 --> 00:01:46,760
Speaker 1: Columbia Law School, hich. I don't think anyone was surprised

29
00:01:47,040 --> 00:01:49,640
Speaker 1: that the court left Trump on the ballot. What was

30
00:01:49,680 --> 00:01:52,080
Speaker 1: the reasoning they used to make their decision.

31
00:01:52,560 --> 00:01:55,960
Speaker 4: There's only one thing the Court clearly decided is that

32
00:01:56,000 --> 00:01:59,600
Speaker 4: the states cannot enforce section three of a fourteenth Amendment

33
00:02:00,080 --> 00:02:03,720
Speaker 4: exclusion of insurrectionists from office with respect to federal offices.

34
00:02:04,080 --> 00:02:07,000
Speaker 4: States can enforce it with respect to state offices, but

35
00:02:07,120 --> 00:02:10,120
Speaker 4: not with respect to federal offices. To do that, they

36
00:02:10,120 --> 00:02:13,160
Speaker 4: would need some authorization from Congress, and they didn't have

37
00:02:13,240 --> 00:02:16,840
Speaker 4: it here. That's what's clear, and that's what all nine

38
00:02:16,880 --> 00:02:20,760
Speaker 4: of the justices agreed to. And the line is probably

39
00:02:20,800 --> 00:02:23,919
Speaker 4: somewhere along the lines of a concern that when you're

40
00:02:23,919 --> 00:02:27,200
Speaker 4: dealing with national offices and states, different states will come

41
00:02:27,360 --> 00:02:30,560
Speaker 4: to different rulings and even will have different ways of

42
00:02:30,600 --> 00:02:34,280
Speaker 4: going about their rules, different standards. What counts as an

43
00:02:34,280 --> 00:02:37,160
Speaker 4: insurrection or who counts as an insurrectionist, so they'll get

44
00:02:37,160 --> 00:02:40,280
Speaker 4: to different results even inmitually with the same position, and

45
00:02:40,320 --> 00:02:42,160
Speaker 4: you can't have that kind of a patchwork for some

46
00:02:42,440 --> 00:02:45,560
Speaker 4: national office like president. After that, it's not quite clear

47
00:02:45,600 --> 00:02:47,440
Speaker 4: what the court decided, or I guess there were five

48
00:02:47,639 --> 00:02:49,840
Speaker 4: justices on the main part of the opinion and then

49
00:02:49,960 --> 00:02:52,840
Speaker 4: three in hanging out account them three or four disagreed.

50
00:02:53,280 --> 00:02:56,760
Speaker 4: Wasn't quite clear what the disagreement is about. Probably what

51
00:02:56,840 --> 00:03:00,919
Speaker 4: happens is the majority started talking about how what kind

52
00:03:01,000 --> 00:03:04,280
Speaker 4: of law Congress would have to pass if Congress were

53
00:03:04,360 --> 00:03:08,840
Speaker 4: to provide for the exclusion of insurrectionists, and basically making

54
00:03:08,840 --> 00:03:11,600
Speaker 4: the point that it would have to use another section

55
00:03:11,880 --> 00:03:15,360
Speaker 4: of the Fourteenth Amendment, section five, which has a certain

56
00:03:15,400 --> 00:03:18,519
Speaker 4: provision allowing for congressional enforcement, and that would have to

57
00:03:18,560 --> 00:03:22,160
Speaker 4: look a certain way based on prior Supreme Court cases

58
00:03:22,520 --> 00:03:27,320
Speaker 4: which talk about what congressional remedial and enforcement legislation has

59
00:03:27,320 --> 00:03:30,440
Speaker 4: to look like when it gets passed under section five

60
00:03:30,520 --> 00:03:33,799
Speaker 4: or the fourteenth Amendment. That's where the majority went, and

61
00:03:33,840 --> 00:03:37,760
Speaker 4: that's where the three they label themselves concurrences, but they

62
00:03:37,800 --> 00:03:40,360
Speaker 4: look like they were descents. That's where they said, no,

63
00:03:40,440 --> 00:03:42,800
Speaker 4: you shouldn't have done that, that you're going too far,

64
00:03:42,880 --> 00:03:45,360
Speaker 4: you shouldn't be resolving that, should have just stuck to

65
00:03:45,400 --> 00:03:49,000
Speaker 4: the early part, and sort of Justice Barrett buys part

66
00:03:49,000 --> 00:03:51,280
Speaker 4: of what the majority did, but doesn't by the other part.

67
00:03:51,640 --> 00:03:54,520
Speaker 4: It's not quite clear what she saw was the difference

68
00:03:54,560 --> 00:03:57,480
Speaker 4: between the two parts of the majority that the three

69
00:03:58,080 --> 00:03:59,840
Speaker 4: more liberal justices all disagree with.

70
00:04:00,320 --> 00:04:03,440
Speaker 1: Since there were five votes for the proposition that the

71
00:04:03,480 --> 00:04:06,880
Speaker 1: Fourteenth Amendment can only be enforced by passing legislation, and

72
00:04:06,920 --> 00:04:09,920
Speaker 1: you talked about what they said the legislation should include.

73
00:04:10,320 --> 00:04:14,280
Speaker 1: Does that mean that's now Supreme Court precedent or could

74
00:04:14,320 --> 00:04:17,520
Speaker 1: it be considered dicta or not legally binding.

75
00:04:18,160 --> 00:04:21,440
Speaker 4: Well, you know, people always argue about what's Dickton wants president.

76
00:04:21,800 --> 00:04:24,240
Speaker 4: You don't really know what Dickton wants president until the

77
00:04:24,279 --> 00:04:28,239
Speaker 4: next case comes along, but it is probably closer to precedent.

78
00:04:28,320 --> 00:04:31,920
Speaker 4: They were relying to a significant degree on an individual

79
00:04:31,960 --> 00:04:35,240
Speaker 4: opinion by a justice of the Supreme Court who is

80
00:04:35,279 --> 00:04:38,440
Speaker 4: sitting as an individual judge. Back in eighteen sixty nine,

81
00:04:38,520 --> 00:04:42,880
Speaker 4: Chief Justice Salmon Chase, and in a individual case he

82
00:04:42,960 --> 00:04:45,320
Speaker 4: basically said Congress needs to pass a statue the Supreme

83
00:04:45,360 --> 00:04:48,400
Speaker 4: Court as a whole had never said that before. And

84
00:04:48,440 --> 00:04:51,360
Speaker 4: what the majority appears to be embracing is that position

85
00:04:51,839 --> 00:04:54,600
Speaker 4: that you need to have some kind of statue from Congress,

86
00:04:54,839 --> 00:04:57,720
Speaker 4: maybe laying out the procedure for declaring somebody to be

87
00:04:57,800 --> 00:05:02,640
Speaker 4: an acting insurrectionist, maybe declaring what constitutes insurrection. But they're

88
00:05:02,640 --> 00:05:05,080
Speaker 4: not even that clear. But I do think they're basically

89
00:05:05,120 --> 00:05:09,120
Speaker 4: taking the position that a statute by Congress authorizing an

90
00:05:09,120 --> 00:05:12,960
Speaker 4: exclusion from office would have to, you know, be as

91
00:05:12,960 --> 00:05:16,680
Speaker 4: they say, congruent and proportional to the language in the Constitution.

92
00:05:17,320 --> 00:05:19,760
Speaker 1: Once again, very clear what Congress might have to do.

93
00:05:20,200 --> 00:05:23,280
Speaker 1: So you mentioned the three liberals who were in concurrence,

94
00:05:23,440 --> 00:05:25,800
Speaker 1: and I said sharp, but you said more like a

95
00:05:25,800 --> 00:05:29,159
Speaker 1: dissent and said the majority went further than it needed

96
00:05:29,200 --> 00:05:34,080
Speaker 1: to quote, they decide novel constitutional questions to insulate this

97
00:05:34,200 --> 00:05:38,240
Speaker 1: court and petitioner from future controversy. What do they mean

98
00:05:38,279 --> 00:05:38,640
Speaker 1: by that?

99
00:05:39,320 --> 00:05:41,640
Speaker 4: That's a good question. I think they said the Court

100
00:05:41,640 --> 00:05:45,440
Speaker 4: has basically taken itself out of anything having to do

101
00:05:46,040 --> 00:05:50,920
Speaker 4: with the insurrection question with respect to this election, and

102
00:05:51,240 --> 00:05:53,360
Speaker 4: I'm not quite sure what they meant by that. I'm

103
00:05:53,400 --> 00:05:55,640
Speaker 4: not quite sure what kinds of issues would come up

104
00:05:55,839 --> 00:05:58,840
Speaker 4: as to what the Court resolved in a way that

105
00:05:59,000 --> 00:06:02,320
Speaker 4: would have an immediate impact. Handidly, I find both the

106
00:06:02,440 --> 00:06:06,000
Speaker 4: majority opinion and the concurrence really kind of murky as

107
00:06:06,000 --> 00:06:07,400
Speaker 4: to what they're arguing.

108
00:06:07,080 --> 00:06:11,040
Speaker 1: About, and interesting in their first line they quoted from

109
00:06:11,120 --> 00:06:14,840
Speaker 1: the Dobbs decision, which took away the constitutional right to abortion.

110
00:06:15,440 --> 00:06:19,400
Speaker 1: I found that sort of curious. Now. Justice amy Cony Barrett,

111
00:06:19,440 --> 00:06:24,040
Speaker 1: in her separate, more temperate concurrence, wrote, the Court has

112
00:06:24,080 --> 00:06:27,360
Speaker 1: settled a politically charged issue in the volatile season of

113
00:06:27,400 --> 00:06:32,200
Speaker 1: a presidential election. Particularly in this circumstance, writings on the

114
00:06:32,240 --> 00:06:36,359
Speaker 1: Court should turn the national temperature down, not up. Is

115
00:06:36,400 --> 00:06:39,400
Speaker 1: this sort of in line with her recent appearance with

116
00:06:39,640 --> 00:06:43,520
Speaker 1: the Justice Sonya Sotomayor where they talked about how well

117
00:06:43,560 --> 00:06:47,160
Speaker 1: everyone on the Court gets along and how they're not

118
00:06:47,279 --> 00:06:50,440
Speaker 1: beholden to the presidents who appointed them. I mean, is

119
00:06:50,480 --> 00:06:53,200
Speaker 1: she trying this sort of let's be calm about this?

120
00:06:54,120 --> 00:06:56,200
Speaker 4: Yes, I think there's a certain wouldn't it be nice

121
00:06:56,240 --> 00:06:59,280
Speaker 4: aspect to it. Let's be calm, let's kind of model

122
00:06:59,440 --> 00:07:02,599
Speaker 4: civil behavehavior in a very polarized country. And not only

123
00:07:02,600 --> 00:07:05,360
Speaker 4: anyone would argue with that in principle was actually unclear.

124
00:07:05,400 --> 00:07:07,480
Speaker 4: It is like she joined some of the Court's opinion

125
00:07:07,640 --> 00:07:09,920
Speaker 4: and not other parts. But the parts that she joined

126
00:07:09,920 --> 00:07:11,880
Speaker 4: in the part she didn't join seemed to be related.

127
00:07:12,360 --> 00:07:14,600
Speaker 4: So it was not quite clear that she says she

128
00:07:14,680 --> 00:07:17,360
Speaker 4: joins to B but not to A. It wasn't quite

129
00:07:17,360 --> 00:07:20,120
Speaker 4: clear to me what the differences between two A and

130
00:07:20,120 --> 00:07:22,880
Speaker 4: two B, and she doesn't explain that, so I don't

131
00:07:22,880 --> 00:07:26,360
Speaker 4: know she is an agreement. I think with the concurring

132
00:07:26,560 --> 00:07:29,960
Speaker 4: justices who there's some evidence that might have started out

133
00:07:29,920 --> 00:07:33,000
Speaker 4: as an extending opinion her opening sentences. I agree that

134
00:07:33,040 --> 00:07:36,720
Speaker 4: states lack the power to enforce Section three against presidential candidates.

135
00:07:36,920 --> 00:07:39,400
Speaker 4: That's a very good summary of what you might call

136
00:07:39,480 --> 00:07:41,880
Speaker 4: the core holding of the court that everybody agrees with.

137
00:07:42,000 --> 00:07:45,120
Speaker 4: All nine agree with that. I think where the disagreement

138
00:07:45,160 --> 00:07:48,280
Speaker 4: that gets to come in is what happens with respect

139
00:07:48,280 --> 00:07:51,080
Speaker 4: to other kinds of action. States can do it without

140
00:07:51,080 --> 00:07:53,960
Speaker 4: a law? Can the federal government do something without a law?

141
00:07:54,200 --> 00:07:57,239
Speaker 4: What should the law look like? And those are the questions.

142
00:07:57,080 --> 00:07:59,960
Speaker 1: I'm wondering this And this was something that the lawyer

143
00:08:00,200 --> 00:08:04,280
Speaker 1: for the Colorado voters set in oral arguments that a

144
00:08:04,360 --> 00:08:09,600
Speaker 1: ruling requiring Congressional action to implement Section three could leave

145
00:08:09,640 --> 00:08:12,360
Speaker 1: the door open to a renewed fight over trying to

146
00:08:12,480 --> 00:08:15,520
Speaker 1: use the provision to disqualify Trump in the event he

147
00:08:15,640 --> 00:08:16,800
Speaker 1: wins the election.

148
00:08:17,240 --> 00:08:20,240
Speaker 4: Right a raging debate even in the hours since this

149
00:08:20,360 --> 00:08:23,520
Speaker 4: case came down as whether or not Congress could reject

150
00:08:23,760 --> 00:08:26,320
Speaker 4: votes for Trump on the theory that he's an insurrectionist.

151
00:08:26,440 --> 00:08:28,640
Speaker 4: Some people read the majority opinion of saying no, they

152
00:08:28,640 --> 00:08:31,720
Speaker 4: couldn't do it unless they passed the law first. Other people,

153
00:08:31,920 --> 00:08:34,319
Speaker 4: I think are probably right saying that Congress would be

154
00:08:34,400 --> 00:08:37,920
Speaker 4: acting not under its Fourteenth Amendment power, but under its

155
00:08:37,960 --> 00:08:41,160
Speaker 4: power under other parts of the Constitution, including the Squealth Amendment,

156
00:08:41,520 --> 00:08:44,679
Speaker 4: to actually count the electoral votes and determine that they

157
00:08:44,679 --> 00:08:48,800
Speaker 4: were properly given for an eligible candidate. So people are

158
00:08:48,840 --> 00:08:51,840
Speaker 4: already disagreeing as to whether or not this would prohibit,

159
00:08:52,320 --> 00:08:54,600
Speaker 4: in the unlikely event that you actually get two Houses

160
00:08:54,640 --> 00:08:56,800
Speaker 4: of Congress to agree to this, to not count the

161
00:08:56,840 --> 00:08:58,840
Speaker 4: votes for Trump on the theory that he's an insurrection

162
00:08:59,160 --> 00:09:01,640
Speaker 4: One theory is that no, the Supreme Court said you

163
00:09:01,640 --> 00:09:04,240
Speaker 4: can't do unless you've alread passed a statute. Another theory,

164
00:09:04,240 --> 00:09:06,440
Speaker 4: and I would go with the second theory is that

165
00:09:06,559 --> 00:09:09,720
Speaker 4: no Congress has separate authority when it counts the electoral

166
00:09:09,760 --> 00:09:12,760
Speaker 4: votes decide whether or not the electoral votes were properly

167
00:09:12,760 --> 00:09:15,520
Speaker 4: given for an eligible candidate. And if the Congress decides

168
00:09:15,559 --> 00:09:18,520
Speaker 4: that these votes are for somebody ineligible, they're exercising a

169
00:09:18,520 --> 00:09:19,280
Speaker 4: different power.

170
00:09:19,640 --> 00:09:23,160
Speaker 1: Do you think that's what the three liberals in their

171
00:09:23,320 --> 00:09:26,160
Speaker 1: concurrence slash dissent we're concerned about.

172
00:09:26,880 --> 00:09:30,560
Speaker 4: This might be what they're arguing about. It's really not clear,

173
00:09:30,840 --> 00:09:33,400
Speaker 4: but this might be what they're arguing about as to

174
00:09:33,440 --> 00:09:37,040
Speaker 4: whether or not did the majority rule that out? You know, frankly,

175
00:09:37,240 --> 00:09:38,960
Speaker 4: it could come up in other ways. I mean, what

176
00:09:39,040 --> 00:09:41,680
Speaker 4: happens is is this came up as a state level dispute.

177
00:09:41,720 --> 00:09:44,160
Speaker 4: What if somebody was you in federal court. I think

178
00:09:44,200 --> 00:09:47,040
Speaker 4: the majority is saying that if somebody shoes in federal

179
00:09:47,160 --> 00:09:49,959
Speaker 4: court to keep Trump off the ballot, you still need

180
00:09:50,000 --> 00:09:53,600
Speaker 4: a statute, even though it would be a federal actor

181
00:09:53,640 --> 00:09:57,079
Speaker 4: a federal judge making the decision. But what they don't address,

182
00:09:57,640 --> 00:10:00,600
Speaker 4: let alone, resolve as to whether or not when Congress

183
00:10:00,640 --> 00:10:03,800
Speaker 4: acts pursued into its authority to count the electoral votes

184
00:10:04,120 --> 00:10:07,160
Speaker 4: and declare a winner, whether they are bound by the

185
00:10:07,240 --> 00:10:09,960
Speaker 4: idea that they need to pass a law first to

186
00:10:10,040 --> 00:10:14,959
Speaker 4: discuss that to review the question of insurrection. The second

187
00:10:15,000 --> 00:10:17,240
Speaker 4: point some people raise is, well, Congress actually did pass

188
00:10:17,240 --> 00:10:20,440
Speaker 4: an electoral account reformat last year. Is that a good

189
00:10:20,520 --> 00:10:22,840
Speaker 4: enough law? Would that law take care of this because

190
00:10:22,840 --> 00:10:27,800
Speaker 4: it has procedures for challenging electoral votes? And finally, is

191
00:10:27,840 --> 00:10:31,760
Speaker 4: Congress acting in a different power when Congress resolves issues

192
00:10:31,800 --> 00:10:35,400
Speaker 4: about who's eligible for president when the electoral votes are presented?

193
00:10:35,440 --> 00:10:37,640
Speaker 4: Simply if the issue came before Congress about one of

194
00:10:37,679 --> 00:10:40,720
Speaker 4: their own an arguable insurrectionist was elected, to say the

195
00:10:40,720 --> 00:10:44,520
Speaker 4: House of Representatives, could the House of Representatives decide to

196
00:10:44,840 --> 00:10:47,240
Speaker 4: not seat that person on the three that the person

197
00:10:47,280 --> 00:10:51,400
Speaker 4: isn't eligible? You know, the House traditionally has authority to

198
00:10:51,440 --> 00:10:54,880
Speaker 4: determine whether or not somebody satisfies the qualifications to be

199
00:10:54,960 --> 00:10:57,200
Speaker 4: a member of the House, although they can't add any

200
00:10:57,640 --> 00:10:59,480
Speaker 4: So I think it might be a question that I

201
00:10:59,480 --> 00:11:00,640
Speaker 4: would also come up then.

202
00:11:01,160 --> 00:11:04,520
Speaker 1: And there was no discussion at all about Trump being

203
00:11:04,520 --> 00:11:06,400
Speaker 1: an insurrectionist or not.

204
00:11:07,000 --> 00:11:09,480
Speaker 4: That's right. They did not address that. They did not

205
00:11:09,559 --> 00:11:12,120
Speaker 4: address whether he had a free speech defense. They didn't

206
00:11:12,160 --> 00:11:14,440
Speaker 4: address the interesting question whether or not the president as

207
00:11:14,440 --> 00:11:16,640
Speaker 4: an officer of the United States. I mean, there's a

208
00:11:16,679 --> 00:11:19,920
Speaker 4: theory out there. In the technical sense, the president is

209
00:11:19,960 --> 00:11:22,600
Speaker 4: not covered by this provision of the Constitution, although members

210
00:11:22,640 --> 00:11:25,040
Speaker 4: of Congress would be, so they don't address that either.

211
00:11:25,559 --> 00:11:29,480
Speaker 1: This is the Court's most direct involvement in a presidential

212
00:11:29,480 --> 00:11:30,480
Speaker 1: election since Bush v.

213
00:11:30,600 --> 00:11:30,840
Speaker 2: Gore.

214
00:11:30,880 --> 00:11:32,640
Speaker 4: Would you say, well, there are a bunch of cases

215
00:11:32,640 --> 00:11:35,800
Speaker 4: that came before the Court in twenty twenty. They sidestepped

216
00:11:35,800 --> 00:11:37,400
Speaker 4: a lot of them. So this is maybe the first

217
00:11:37,679 --> 00:11:40,760
Speaker 4: full opinion. There were some actually opinions that dealt with

218
00:11:41,000 --> 00:11:44,240
Speaker 4: voter eligibility and absentee ballots and things like that in

219
00:11:44,280 --> 00:11:46,400
Speaker 4: the twenty twenty election, but certainly the first one to

220
00:11:46,480 --> 00:11:48,199
Speaker 4: directly address a candidate.

221
00:11:48,600 --> 00:11:52,600
Speaker 1: And next month they'll be addressing whether that candidate has

222
00:11:52,720 --> 00:11:57,000
Speaker 1: presidential immunity from prosecution. Thanks so much, rich that's Professor

223
00:11:57,080 --> 00:12:00,800
Speaker 1: Richard Brufault of Columbia Law School. Coming up next are

224
00:12:00,880 --> 00:12:04,640
Speaker 1: sanctuary cities getting a bad rap. I'm June Grosso and

225
00:12:04,679 --> 00:12:08,120
Speaker 1: you're listening to Bloomberg. New York City Mayor Eric Adams

226
00:12:08,200 --> 00:12:12,120
Speaker 1: wants its sanctuary city laws to be changed to more

227
00:12:12,160 --> 00:12:15,920
Speaker 1: easily deport migrants accused of violent crimes.

228
00:12:16,040 --> 00:12:19,559
Speaker 5: But those small numbers that are committing crimes, we need

229
00:12:19,600 --> 00:12:23,320
Speaker 5: to modify the sanctuary city law that if you commit

230
00:12:23,400 --> 00:12:25,719
Speaker 5: a felony, a violent act, we should be able to

231
00:12:25,760 --> 00:12:27,720
Speaker 5: turn you over to Ice and have you deported. It

232
00:12:27,840 --> 00:12:30,840
Speaker 5: is a right to live in this city and you

233
00:12:30,840 --> 00:12:33,400
Speaker 5: should be not committing crimes in our city, but doing

234
00:12:33,480 --> 00:12:36,760
Speaker 5: so right now, we don't have the authority to do so.

235
00:12:37,240 --> 00:12:41,320
Speaker 1: The mayor city's administration is looking into legal options after

236
00:12:41,360 --> 00:12:46,240
Speaker 1: the city council refuse to reevaluate the sanctuary city laws.

237
00:12:46,880 --> 00:12:49,400
Speaker 1: Joining me is Leon Fresco, a partner at Holland and

238
00:12:49,480 --> 00:12:52,800
Speaker 1: Knight and former head of the Office of Immigration Litigation

239
00:12:53,240 --> 00:12:56,920
Speaker 1: in the Obama administration. So, Leon, how does what the

240
00:12:56,960 --> 00:13:00,560
Speaker 1: mayor wants to do conflict with New New York City

241
00:13:00,760 --> 00:13:02,040
Speaker 1: sanctuary laws.

242
00:13:02,520 --> 00:13:05,520
Speaker 6: Well, so this is a very complicated issue, and I'll

243
00:13:05,520 --> 00:13:09,120
Speaker 6: give you a brief history of how it started and

244
00:13:09,160 --> 00:13:11,680
Speaker 6: sort of where it's more fit to because it's not

245
00:13:11,760 --> 00:13:14,559
Speaker 6: clear where may Or Adams wants to draw the line.

246
00:13:14,640 --> 00:13:19,440
Speaker 6: But the reason this whole concept of sanctuary city started

247
00:13:19,920 --> 00:13:24,360
Speaker 6: is that during the Bush administration, many places around the

248
00:13:24,400 --> 00:13:30,720
Speaker 6: country had practices where if any local police officer encountered

249
00:13:30,760 --> 00:13:34,920
Speaker 6: anyone that they thought might be in illegal statics, they

250
00:13:34,920 --> 00:13:38,120
Speaker 6: would immediately call ICE. And so this was happening for

251
00:13:38,240 --> 00:13:43,200
Speaker 6: things like traffic stops or people just running into police

252
00:13:43,559 --> 00:13:46,640
Speaker 6: in a concert or something or wherever. It was happening

253
00:13:46,640 --> 00:13:50,520
Speaker 6: all over the place, and police words simplice just calling

254
00:13:50,600 --> 00:13:54,040
Speaker 6: ICE and sending people to ICE custody. And this was

255
00:13:54,120 --> 00:13:58,240
Speaker 6: creating lots of sort of fear and commotion and buzz

256
00:13:58,280 --> 00:14:00,360
Speaker 6: and a lot of big cities across the mad America

257
00:14:00,760 --> 00:14:03,520
Speaker 6: because people were worried if I even go outside of

258
00:14:03,520 --> 00:14:05,440
Speaker 6: my house, if I go to work, if I go

259
00:14:05,520 --> 00:14:08,280
Speaker 6: on a bus, I will be apprehended by ICE. So

260
00:14:08,480 --> 00:14:13,000
Speaker 6: the sanctuary city movement started under the principle of what

261
00:14:13,160 --> 00:14:16,880
Speaker 6: you want to capture are actual criminals. You don't want

262
00:14:16,920 --> 00:14:21,280
Speaker 6: to capture undocumented people who are having interactions with police.

263
00:14:21,760 --> 00:14:27,000
Speaker 6: You want to capture people convicted of criminal offenses. So

264
00:14:27,640 --> 00:14:31,400
Speaker 6: what many states and cities started doing. For some cities

265
00:14:31,440 --> 00:14:35,920
Speaker 6: and some entire states, they started first with the concept

266
00:14:35,960 --> 00:14:39,880
Speaker 6: of don't report anyone to ICE unless and until they're

267
00:14:39,920 --> 00:14:42,920
Speaker 6: actually charged. So there was one step first of all,

268
00:14:43,440 --> 00:14:46,840
Speaker 6: maybe not arrested, but at least charged. Then there was

269
00:14:46,840 --> 00:14:51,560
Speaker 6: a second step not charged but convicted, and then there

270
00:14:51,640 --> 00:14:55,160
Speaker 6: was a third step, not just convicted, but convicted of

271
00:14:55,200 --> 00:14:57,960
Speaker 6: a violent crime. And so that's where a lot of

272
00:14:57,960 --> 00:15:01,280
Speaker 6: these states and cities are now is they will not

273
00:15:01,400 --> 00:15:04,400
Speaker 6: report you to ICE unless you actually have a conviction

274
00:15:05,280 --> 00:15:08,520
Speaker 6: and if it's of a violent crime. But what has

275
00:15:08,600 --> 00:15:11,440
Speaker 6: happened in the meantime, In the meantime over the course

276
00:15:11,880 --> 00:15:14,800
Speaker 6: of we're talking from the Bush administration two thousand and

277
00:15:14,800 --> 00:15:18,760
Speaker 6: seven to now fifteen years, but mostly in the last

278
00:15:18,840 --> 00:15:24,120
Speaker 6: five or six years now, a typical interaction with police

279
00:15:24,960 --> 00:15:28,320
Speaker 6: is it gonna lead to anything, basically in a lot

280
00:15:28,320 --> 00:15:32,600
Speaker 6: of these big cities. But even more difficult to grapple

281
00:15:32,640 --> 00:15:37,600
Speaker 6: with is even in legitimate crimes, they won't lead to prosecutions,

282
00:15:38,160 --> 00:15:41,440
Speaker 6: and then even in violent crime situations, they won't lead

283
00:15:41,480 --> 00:15:46,000
Speaker 6: the prosecutions. And so there's now not a way to

284
00:15:46,240 --> 00:15:51,000
Speaker 6: actually notify ICE that you haven't come encountered with a

285
00:15:51,120 --> 00:15:56,240
Speaker 6: violent criminal because these new criminal processing guidelines that a

286
00:15:56,240 --> 00:15:59,040
Speaker 6: lot of these district attorneys have put in, including the

287
00:15:59,120 --> 00:16:03,000
Speaker 6: district attorney in New York, have basically made it impossible

288
00:16:03,400 --> 00:16:06,480
Speaker 6: that when the police interacts with an actual violent criminal,

289
00:16:06,840 --> 00:16:10,880
Speaker 6: if there's no prosecution, that actually leads to a conviction

290
00:16:11,360 --> 00:16:14,960
Speaker 6: for a violent crime. There will never be an interaction

291
00:16:15,080 --> 00:16:19,480
Speaker 6: with ice where Ice actually detains the person and deports them.

292
00:16:19,800 --> 00:16:23,240
Speaker 6: And so that's the problem we're seeing is so.

293
00:16:23,080 --> 00:16:27,280
Speaker 1: It's a two part problem, not only the sanctuary city laws,

294
00:16:27,360 --> 00:16:32,520
Speaker 1: but also the way the Manhattan DA Alvin Bragg is

295
00:16:32,680 --> 00:16:35,520
Speaker 1: enforcing or not enforcing the criminal laws.

296
00:16:35,840 --> 00:16:38,400
Speaker 6: That's why I think Mayor Adams he's got to make

297
00:16:38,440 --> 00:16:41,680
Speaker 6: a choice. Is he's saying that every time the police

298
00:16:41,880 --> 00:16:47,120
Speaker 6: interacts with someone, they're going to call ICE, or is

299
00:16:47,120 --> 00:16:50,920
Speaker 6: he going to put pressure on the district attorney to

300
00:16:51,000 --> 00:16:56,080
Speaker 6: actually prosecute people and actually convict people for the crimes

301
00:16:56,160 --> 00:16:58,360
Speaker 6: that they are committing. Those are the only two ways

302
00:16:58,360 --> 00:17:00,760
Speaker 6: to solve the problem. If you don't do it the

303
00:17:00,800 --> 00:17:05,119
Speaker 6: second way, where the district attorney is actually prosecuting and

304
00:17:05,200 --> 00:17:09,040
Speaker 6: convicting people for the actual crimes they're committing, that it's

305
00:17:09,040 --> 00:17:13,280
Speaker 6: harder to have this sanctuary city policy where you're saying, look,

306
00:17:13,320 --> 00:17:16,560
Speaker 6: we don't want ICE being called every single time the

307
00:17:16,560 --> 00:17:20,280
Speaker 6: police interacts with somebody, because that's the only time you'll

308
00:17:20,320 --> 00:17:22,760
Speaker 6: be able to call them. There won't be a time

309
00:17:22,800 --> 00:17:25,880
Speaker 6: of a conviction. And so that's what creates the problem.

310
00:17:26,080 --> 00:17:29,400
Speaker 1: And then you have a situation where the migrants who

311
00:17:29,440 --> 00:17:34,040
Speaker 1: attack the police officers and we see videos of them

312
00:17:34,119 --> 00:17:36,760
Speaker 1: exiting the police station, you know, giving a finger to

313
00:17:36,840 --> 00:17:41,400
Speaker 1: the camera, correct, and people are like, why is that happening?

314
00:17:41,480 --> 00:17:45,280
Speaker 1: So it's it's first a problem with the district attorney, right,

315
00:17:45,359 --> 00:17:46,520
Speaker 1: not asking for bail.

316
00:17:47,560 --> 00:17:51,880
Speaker 6: Correct. The district's attorney needs to keep people in detention

317
00:17:52,119 --> 00:17:54,840
Speaker 6: and then convict them of the actual crimes they're committing.

318
00:17:55,280 --> 00:17:57,440
Speaker 6: And then you don't need to get rid of sanctuary

319
00:17:57,520 --> 00:18:00,600
Speaker 6: cities because people who actually do the kind the facts

320
00:18:00,640 --> 00:18:03,240
Speaker 6: that are a being offense that the people will then

321
00:18:03,320 --> 00:18:06,760
Speaker 6: eventually get called to ice. But if the district's attorney

322
00:18:06,840 --> 00:18:12,040
Speaker 6: doesn't actually prosecute people and keep them in detention, then

323
00:18:12,720 --> 00:18:16,080
Speaker 6: the mayor only has one choice, which is to end

324
00:18:16,440 --> 00:18:20,760
Speaker 6: the sanctuary city doctrine, which means just when the police

325
00:18:20,840 --> 00:18:23,879
Speaker 6: interacts with someone, regardless of whether they're going to be

326
00:18:23,920 --> 00:18:27,320
Speaker 6: guilty or not, they just call ICE. And so that's

327
00:18:27,359 --> 00:18:30,320
Speaker 6: the question. You only have those two alternatives. But when

328
00:18:30,320 --> 00:18:33,439
Speaker 6: you've taken away both alternatives, that's where you end up

329
00:18:33,480 --> 00:18:35,119
Speaker 6: with the current situation of today.

330
00:18:35,359 --> 00:18:39,000
Speaker 1: At any changes in New York City sanctuary policy, would

331
00:18:39,000 --> 00:18:43,040
Speaker 1: require the city council's cooperation, and the city council has

332
00:18:43,080 --> 00:18:43,960
Speaker 1: already said no.

333
00:18:44,560 --> 00:18:47,760
Speaker 6: So correct, and so it's a big problem. But I

334
00:18:47,800 --> 00:18:51,320
Speaker 6: think very few people are explaining the problem in this manner,

335
00:18:51,880 --> 00:18:55,480
Speaker 6: and they're thinking it's a purely sanctuary city issue, and

336
00:18:55,560 --> 00:18:59,480
Speaker 6: people aren't understanding that it's not so much the sanctuary

337
00:18:59,480 --> 00:19:02,639
Speaker 6: city issue. It's how it's interacting with the new manner

338
00:19:03,000 --> 00:19:07,040
Speaker 6: in which prosecutors are actually treating people who commit crime.

339
00:19:07,560 --> 00:19:10,760
Speaker 6: That's the real problem. But if you're not going to

340
00:19:10,800 --> 00:19:13,400
Speaker 6: fix that, then yes, you have to roll back some

341
00:19:13,440 --> 00:19:16,000
Speaker 6: of these sanctuary city protections.

342
00:19:17,359 --> 00:19:22,240
Speaker 1: Now, Georgia's House has passed a new law in light

343
00:19:22,280 --> 00:19:25,800
Speaker 1: of the murder of nursing student Lake and Riley and

344
00:19:25,840 --> 00:19:30,080
Speaker 1: the arrest of an illegal Venezuelan migrant for the murder,

345
00:19:30,480 --> 00:19:32,840
Speaker 1: a migrant who, by the way, had been arrested and

346
00:19:33,000 --> 00:19:37,120
Speaker 1: released by New York City police in August of last year.

347
00:19:37,600 --> 00:19:38,920
Speaker 1: Tell Us about that law.

348
00:19:39,160 --> 00:19:41,840
Speaker 6: Well, a lot of these states are starting to create

349
00:19:41,920 --> 00:19:46,960
Speaker 6: these laws that are deputizing people, whether they be local

350
00:19:47,040 --> 00:19:50,959
Speaker 6: law enforcement or whether they be actual police. And this

351
00:19:51,000 --> 00:19:53,480
Speaker 6: one is being named after the four young woman Lake

352
00:19:53,560 --> 00:19:57,280
Speaker 6: and Riley, who was at the University of Georgia who

353
00:19:57,480 --> 00:20:02,040
Speaker 6: was unfortunately murdered by one of these undocumented people who

354
00:20:02,040 --> 00:20:05,280
Speaker 6: had passed through New York. What they're basically saying is

355
00:20:05,840 --> 00:20:12,040
Speaker 6: if Homeland Security does not deport someone who ends up

356
00:20:12,040 --> 00:20:15,160
Speaker 6: committing a crime, the state Attorney General would be allowed

357
00:20:15,359 --> 00:20:20,080
Speaker 6: to suit and it would require the police to help

358
00:20:20,200 --> 00:20:25,040
Speaker 6: arrest undocumented immigrants if they're called by anybody. So they're saying,

359
00:20:25,320 --> 00:20:28,480
Speaker 6: you know, anybody could become sort of a private deputy

360
00:20:28,680 --> 00:20:32,000
Speaker 6: type person and call the police, and then the police

361
00:20:32,440 --> 00:20:36,560
Speaker 6: would have to go find the person and report them

362
00:20:36,600 --> 00:20:39,560
Speaker 6: to ICE. The problem with these issues is, I mean

363
00:20:39,600 --> 00:20:42,040
Speaker 6: one has a pass, but even if it were to pass,

364
00:20:42,440 --> 00:20:46,920
Speaker 6: the law allows these sort of arrangements where local law

365
00:20:47,000 --> 00:20:53,680
Speaker 6: enforcements could be deputized by ICE to perform some functions

366
00:20:54,160 --> 00:20:57,760
Speaker 6: and also where they can actually detain for a brief

367
00:20:57,800 --> 00:21:02,399
Speaker 6: period and call like for reasons suspicion. But there's two issues.

368
00:21:02,480 --> 00:21:06,160
Speaker 6: Number one with the current administration. You have to ask

369
00:21:06,200 --> 00:21:09,120
Speaker 6: the question, if you call the ICE, will ICE answer

370
00:21:09,200 --> 00:21:12,560
Speaker 6: the phone, will it even you know, will it take

371
00:21:12,680 --> 00:21:15,000
Speaker 6: your call? Will it then come and visit the person?

372
00:21:15,040 --> 00:21:17,320
Speaker 6: And if they don't, it doesn't matter how many times

373
00:21:17,359 --> 00:21:21,000
Speaker 6: you call them. So that's one problem, and then the

374
00:21:21,080 --> 00:21:23,080
Speaker 6: second problem, and I think that's what they're trying to

375
00:21:23,119 --> 00:21:26,200
Speaker 6: solve with these lawsuits. But the second problem is if

376
00:21:26,200 --> 00:21:31,080
Speaker 6: you sue the federal government for not basically enforcing immigration law.

377
00:21:31,160 --> 00:21:34,440
Speaker 6: Texas already tried that, and there's a Supreme Court case

378
00:21:34,440 --> 00:21:38,040
Speaker 6: from just two years ago saying the states cannot dictate

379
00:21:38,080 --> 00:21:41,240
Speaker 6: how the federal government enforces immigration law. So this has

380
00:21:41,280 --> 00:21:44,520
Speaker 6: already been tried, This has already worked its way all

381
00:21:44,520 --> 00:21:48,040
Speaker 6: the way up to these specific nine judges, and these

382
00:21:48,080 --> 00:21:51,679
Speaker 6: specific nine judges have said that states can't be imposing

383
00:21:51,720 --> 00:21:54,600
Speaker 6: their will on the federal government with regard to who

384
00:21:54,640 --> 00:21:56,520
Speaker 6: to deport, who to detain, et cetera.

385
00:21:57,160 --> 00:21:58,760
Speaker 1: Which case was that leam.

386
00:21:59,040 --> 00:22:04,520
Speaker 6: That was the Bye versus Texas Prosecutorial Discretion Guidelines case

387
00:22:05,200 --> 00:22:08,600
Speaker 6: where the Secretary of Homeland Security, Alejandro majork Has have

388
00:22:08,680 --> 00:22:11,919
Speaker 6: made a memo saying here are the people who are

389
00:22:11,920 --> 00:22:13,639
Speaker 6: going to be emphasizing, and here the people we are

390
00:22:13,680 --> 00:22:16,880
Speaker 6: going to be de emphasizing. And Texas suit and there

391
00:22:16,960 --> 00:22:20,480
Speaker 6: was a district court judge who said, absolutely, you're right, Texas,

392
00:22:20,720 --> 00:22:24,720
Speaker 6: they can't do this. And basically this judge was deciding

393
00:22:24,760 --> 00:22:29,000
Speaker 6: who I could deport or not deport, and the Supreme

394
00:22:29,000 --> 00:22:32,159
Speaker 6: Court said, this is not penible. This is not a

395
00:22:32,240 --> 00:22:34,680
Speaker 6: thing that we can continue. This has to be left

396
00:22:34,680 --> 00:22:37,119
Speaker 6: to the federal government and the agency that does this,

397
00:22:37,640 --> 00:22:40,440
Speaker 6: the Department of Homeland Security. And so they just said

398
00:22:40,480 --> 00:22:45,520
Speaker 6: the States don't have standing to get involved or complain

399
00:22:46,280 --> 00:22:49,879
Speaker 6: using any sort of statute or judicial authority about the

400
00:22:49,960 --> 00:22:52,920
Speaker 6: manner in which the federal government enforces immigration law.

401
00:22:53,400 --> 00:22:56,200
Speaker 1: Coming up next on the Bloomberg Lawn Show. While Donald

402
00:22:56,240 --> 00:22:58,960
Speaker 1: Trump was thanking the Supreme Court for ruling in his

403
00:22:59,080 --> 00:23:03,560
Speaker 1: favor today, he also challenged Joe Biden to close the border.

404
00:23:03,960 --> 00:23:06,639
Speaker 1: That's coming up next. I'm June Grosso and you're listening

405
00:23:06,680 --> 00:23:07,320
Speaker 1: to Bloomberg.

406
00:23:08,560 --> 00:23:13,800
Speaker 7: The other thing I say too, President Biden, close the

407
00:23:13,840 --> 00:23:14,960
Speaker 7: borders now.

408
00:23:15,520 --> 00:23:18,440
Speaker 1: After thanking the Supreme Court for ruling in his favor

409
00:23:18,520 --> 00:23:22,760
Speaker 1: and preventing states from kicking him off ballots, Donald Trump

410
00:23:22,920 --> 00:23:26,679
Speaker 1: veered into the topics of presidential immunity, the success of

411
00:23:26,720 --> 00:23:30,800
Speaker 1: his presidency, the unfairness of the trials facing him, and

412
00:23:30,840 --> 00:23:34,800
Speaker 1: the border, telling President Biden to close the border just

413
00:23:34,920 --> 00:23:35,800
Speaker 1: as he had done.

414
00:23:36,400 --> 00:23:38,320
Speaker 7: You have to stop, you have to close the border.

415
00:23:38,359 --> 00:23:41,320
Speaker 7: You have absolute authorization. You don't need Congress. I had

416
00:23:41,320 --> 00:23:44,719
Speaker 7: the safest border in the history of our country, and

417
00:23:45,040 --> 00:23:46,600
Speaker 7: I didn't use Congress for it.

418
00:23:47,440 --> 00:23:50,600
Speaker 1: I've been talking to immigration law expert Leon Fresco of

419
00:23:50,680 --> 00:23:54,720
Speaker 1: Honda Knight. Leon can Biden just closed the border.

420
00:23:55,320 --> 00:23:57,240
Speaker 6: Well, so there are a couple of points here, and

421
00:23:57,320 --> 00:24:00,560
Speaker 6: it really matters what fine bring your life looking at

422
00:24:00,960 --> 00:24:05,200
Speaker 6: and what do you mean? Because on the day of

423
00:24:05,359 --> 00:24:10,119
Speaker 6: the transition between Trump and Biden, the border quote unquote

424
00:24:10,160 --> 00:24:13,080
Speaker 6: was closed, but that was because of Title forty two

425
00:24:13,200 --> 00:24:17,520
Speaker 6: and the COVID pandemic. There was a federal national emergency

426
00:24:18,280 --> 00:24:22,119
Speaker 6: which required the federal government under Title forty two to

427
00:24:22,160 --> 00:24:26,000
Speaker 6: close the border. Now, if President Biden were to issue

428
00:24:26,040 --> 00:24:29,359
Speaker 6: a Title forty two emergency be sued because they'd say,

429
00:24:29,720 --> 00:24:34,760
Speaker 6: what emergency, what pandemic? So that sort of statement is

430
00:24:34,800 --> 00:24:37,960
Speaker 6: it doesn't tell you much because it's a deceptive statement.

431
00:24:38,160 --> 00:24:42,119
Speaker 6: But if you're not talking about Title forty two authority

432
00:24:42,640 --> 00:24:45,520
Speaker 6: and you're talking about what other things Trump did, well,

433
00:24:45,560 --> 00:24:48,800
Speaker 6: the only other main thing that he did that started

434
00:24:48,800 --> 00:24:52,280
Speaker 6: to build subtraction, although it was not even remotely a

435
00:24:52,320 --> 00:24:56,840
Speaker 6: closed border, was the issue of remain in Mexico. But

436
00:24:57,480 --> 00:25:02,520
Speaker 6: there that was a long process where Trump first needed

437
00:25:02,560 --> 00:25:06,080
Speaker 6: to threaten in Mexico with tariffs on cars and then

438
00:25:06,920 --> 00:25:11,600
Speaker 6: build up infrastructure in Mexico, and that wasn't even done

439
00:25:11,680 --> 00:25:14,639
Speaker 6: yet by the time COVID came. COVID came and just

440
00:25:14,720 --> 00:25:18,560
Speaker 6: made it easier to do. Title forty two, where Trump

441
00:25:18,600 --> 00:25:21,919
Speaker 6: is criticizing Biden is that he shouldn't have reversed remain

442
00:25:22,000 --> 00:25:25,520
Speaker 6: in Mexico. But whether that criticism is valid or not,

443
00:25:25,920 --> 00:25:29,600
Speaker 6: it's been done already, So he couldn't just return on

444
00:25:29,680 --> 00:25:32,960
Speaker 6: the button right this minute. He'd have to do some

445
00:25:33,200 --> 00:25:37,160
Speaker 6: similar threat because now in the meantime, the Mexican Supreme

446
00:25:37,240 --> 00:25:40,520
Speaker 6: Court has said that Mexico can no longer permit a

447
00:25:40,600 --> 00:25:45,720
Speaker 6: Remain in Mexico type arrangement. But that's not constitutional under

448
00:25:45,760 --> 00:25:49,639
Speaker 6: Mexican law. So President Biden would have to engage in

449
00:25:49,800 --> 00:25:53,880
Speaker 6: very similar, very hostile threats toward Mexico that would get

450
00:25:53,880 --> 00:25:57,879
Speaker 6: them to change their constitution to allow this. But you know,

451
00:25:58,400 --> 00:26:00,680
Speaker 6: I'm not saying that couldn't happen, and I think Trump

452
00:26:00,680 --> 00:26:03,959
Speaker 6: wouldn't do it. All I'm saying is that's the kind

453
00:26:04,000 --> 00:26:06,160
Speaker 6: of thing that would need to happen, and then you'd

454
00:26:06,200 --> 00:26:08,959
Speaker 6: need to rebuild all that infrastructure which would have no

455
00:26:09,200 --> 00:26:14,440
Speaker 6: chance of happening before November. And so that's the difficult question.

456
00:26:14,560 --> 00:26:18,399
Speaker 6: That's why President Biden was so focused and leaning on

457
00:26:19,280 --> 00:26:24,399
Speaker 6: this congressional legislation which would have recreated the title forty

458
00:26:24,440 --> 00:26:28,720
Speaker 6: two exclusion Authority, where you could just literally kick people out,

459
00:26:29,359 --> 00:26:33,800
Speaker 6: but you would be kicking people out without needing a

460
00:26:33,840 --> 00:26:36,200
Speaker 6: pandemic to do it. You would be kicking them out

461
00:26:36,680 --> 00:26:40,120
Speaker 6: sort of with a high volume of people as your

462
00:26:40,280 --> 00:26:42,720
Speaker 6: justification rather than a pandemic.

463
00:26:43,920 --> 00:26:48,760
Speaker 1: Leon we talked about the rumors that President Biden was

464
00:26:48,800 --> 00:26:53,960
Speaker 1: going to put in place some executive actions correct about

465
00:26:53,960 --> 00:26:55,479
Speaker 1: the border. What happened to that.

466
00:26:56,520 --> 00:26:59,080
Speaker 6: I think there's a couple of problems. Number One, I

467
00:26:59,080 --> 00:27:03,800
Speaker 6: think he's weighed for two, three, four weeks from now

468
00:27:04,280 --> 00:27:08,640
Speaker 6: once all the sort of government budgeting and shut downs

469
00:27:08,680 --> 00:27:11,399
Speaker 6: and delays and all of that are solved, because I

470
00:27:11,440 --> 00:27:15,280
Speaker 6: think right now doing something within that framework ends up

471
00:27:15,320 --> 00:27:18,720
Speaker 6: complicating issues. Once you get the government funded for the year,

472
00:27:19,240 --> 00:27:22,120
Speaker 6: then you might decide, Okay, now I have these sources

473
00:27:22,160 --> 00:27:25,119
Speaker 6: of funding that I didn't have, that I could maybe

474
00:27:25,200 --> 00:27:28,960
Speaker 6: divert towards this new regulation that I'm doing or this

475
00:27:29,000 --> 00:27:31,920
Speaker 6: new executive order. If I'm going to have more detention

476
00:27:32,119 --> 00:27:34,800
Speaker 6: space or if I'm gonna do something else, And so

477
00:27:34,920 --> 00:27:37,120
Speaker 6: I think that's why you're not seeing it. I think

478
00:27:37,160 --> 00:27:41,200
Speaker 6: he's hoping to get the government funding issues resolved beforehand.

479
00:27:41,600 --> 00:27:45,280
Speaker 6: But I also think he's probably being told there's very

480
00:27:45,359 --> 00:27:49,199
Speaker 6: little he can do other than remain in Mexico to

481
00:27:49,280 --> 00:27:51,600
Speaker 6: try to resolve this, and that remain in Mexico is

482
00:27:51,600 --> 00:27:54,720
Speaker 6: going to take a very long time. Basically, Trump went

483
00:27:54,720 --> 00:27:58,000
Speaker 6: through the same iterations for three years. He tried every

484
00:27:58,040 --> 00:28:00,520
Speaker 6: single thing that they told him to trust, and every

485
00:28:00,520 --> 00:28:03,359
Speaker 6: single thing got blocked by the court. And so what

486
00:28:03,520 --> 00:28:05,680
Speaker 6: ended up happening is the only thing he could do

487
00:28:06,200 --> 00:28:09,320
Speaker 6: was remain in Mexico. I think this is the advice

488
00:28:09,440 --> 00:28:12,360
Speaker 6: that's being given to President Biden, and he's saying, well,

489
00:28:12,400 --> 00:28:14,800
Speaker 6: I just spent a year calling that thing terrible, it

490
00:28:14,880 --> 00:28:18,840
Speaker 6: can't be done, it's the big human rights violation, etc.

491
00:28:19,680 --> 00:28:21,680
Speaker 6: I don't know if I can come back to doing

492
00:28:21,680 --> 00:28:23,480
Speaker 6: that now. And I think that's the problem.

493
00:28:24,160 --> 00:28:26,800
Speaker 1: Let's turn out of Texas, which has been suing the

494
00:28:26,840 --> 00:28:30,440
Speaker 1: federal government for years and has spent one point four

495
00:28:30,440 --> 00:28:34,600
Speaker 1: million dollars litigating cases related to the border and immigration

496
00:28:34,800 --> 00:28:38,440
Speaker 1: since Biden took office. I want to get straight some

497
00:28:38,600 --> 00:28:41,600
Speaker 1: of the legal fights that Texas has, so.

498
00:28:41,520 --> 00:28:44,200
Speaker 6: The ones that they currently have. The biggest one which

499
00:28:44,240 --> 00:28:47,640
Speaker 6: is literally relevant as of today, is that the Fifth

500
00:28:47,680 --> 00:28:53,520
Speaker 6: Circuit overturned the judge in Austin who overturned the Texas

501
00:28:53,560 --> 00:28:57,160
Speaker 6: state law which was allowing Texas to basically to port

502
00:28:57,320 --> 00:29:01,880
Speaker 6: undocumented people. So there was the law Texas recently passed

503
00:29:01,880 --> 00:29:04,160
Speaker 6: that said, look, we can push people across the border,

504
00:29:04,600 --> 00:29:07,719
Speaker 6: our Texas state people and if people come back in

505
00:29:07,800 --> 00:29:11,840
Speaker 6: that's going to be a Texas felony of trespassing. And

506
00:29:12,720 --> 00:29:17,160
Speaker 6: the court in Austin, the district judge said that's illegal.

507
00:29:17,200 --> 00:29:21,320
Speaker 6: That violates the Arizona law case from twenty twelve that

508
00:29:21,880 --> 00:29:26,720
Speaker 6: John Roberts decided at Justice Kennedy. And this argument that

509
00:29:26,760 --> 00:29:29,840
Speaker 6: Texas was making, well, Arizona doesn't apply because this is

510
00:29:29,880 --> 00:29:33,880
Speaker 6: an actual invasion, whereas the Arizona wasn't facing an invasion.

511
00:29:33,920 --> 00:29:38,040
Speaker 6: This is an invasion, and the President isn't guarding Texas

512
00:29:38,120 --> 00:29:41,120
Speaker 6: during an invasion. And the judge said, look, this is

513
00:29:41,160 --> 00:29:44,120
Speaker 6: not a proper application of that invasion clause. This is

514
00:29:44,160 --> 00:29:47,719
Speaker 6: just an immigration issue. This is not people aren't cutting

515
00:29:47,760 --> 00:29:51,680
Speaker 6: across actually trying to overthrow the government of the United States.

516
00:29:51,720 --> 00:29:57,040
Speaker 6: And so from that standpoint, that wasn't joined just this weekend,

517
00:29:57,200 --> 00:29:59,520
Speaker 6: although the order came out today, but it was during

518
00:29:59,520 --> 00:30:03,280
Speaker 6: the weekend. The Fifth Circuit has stayed that order for

519
00:30:03,360 --> 00:30:06,920
Speaker 6: the next seven days, meaning Texas's law is legal again

520
00:30:07,520 --> 00:30:10,200
Speaker 6: for the next seven days. And then the question is

521
00:30:10,240 --> 00:30:14,440
Speaker 6: does the federal government now go to the Supreme Court

522
00:30:15,200 --> 00:30:19,200
Speaker 6: to try to enjoin the law again or do they

523
00:30:19,240 --> 00:30:22,160
Speaker 6: try to fight it out in the Fifth Circuit. So

524
00:30:22,160 --> 00:30:25,200
Speaker 6: they will have both of those choices. It is unclear

525
00:30:25,240 --> 00:30:27,520
Speaker 6: what the federal government will do. I don't I actually

526
00:30:27,520 --> 00:30:30,320
Speaker 6: don't know. If they said here, maybe they would just

527
00:30:30,360 --> 00:30:35,640
Speaker 6: want to go straight to the Supreme Court. But again

528
00:30:35,680 --> 00:30:36,440
Speaker 6: this is unclear.

529
00:30:37,000 --> 00:30:40,560
Speaker 1: That happens so fast. There was no argument, was there

530
00:30:40,600 --> 00:30:41,440
Speaker 1: at the Fifth Circuit.

531
00:30:41,800 --> 00:30:45,360
Speaker 6: No, it was just a seven day stay that says, look,

532
00:30:45,360 --> 00:30:48,160
Speaker 6: you've got seven days go to the Supreme Court if

533
00:30:48,160 --> 00:30:51,680
Speaker 6: you want, you can skip us entirely. And so now

534
00:30:51,720 --> 00:30:55,000
Speaker 6: the federal government doesn't have to skip the Fifth Circuit entirely,

535
00:30:55,080 --> 00:30:58,440
Speaker 6: but they can if they want to. And so the

536
00:30:58,440 --> 00:31:01,680
Speaker 6: federal government wants to skip a Fifth Circuit, they can.

537
00:31:02,400 --> 00:31:05,040
Speaker 6: And now because the Fifth Circuit has actually ruled, they

538
00:31:05,520 --> 00:31:10,959
Speaker 6: sayed the injunction meeting that Texas law is legal, and

539
00:31:11,040 --> 00:31:13,600
Speaker 6: so if they want to make the Texas law illegal again,

540
00:31:14,560 --> 00:31:16,400
Speaker 6: they would go to the Supreme Court and then there'd

541
00:31:16,400 --> 00:31:19,320
Speaker 6: be arguments about that. So it'll be very interesting to

542
00:31:19,360 --> 00:31:22,240
Speaker 6: see if that's what the federal government does and if

543
00:31:22,240 --> 00:31:25,200
Speaker 6: it does not. Remember, the Supreme Court already has many, many,

544
00:31:25,200 --> 00:31:28,000
Speaker 6: many cases they're trying to get done before the end

545
00:31:28,040 --> 00:31:30,760
Speaker 6: of June, and to add this extra one will be

546
00:31:30,880 --> 00:31:32,520
Speaker 6: very interesting to see if they want to add it

547
00:31:32,600 --> 00:31:34,240
Speaker 6: or not, or do they just want to let the

548
00:31:34,280 --> 00:31:37,120
Speaker 6: Fifth Circuit work this out on their own and come

549
00:31:37,160 --> 00:31:39,840
Speaker 6: back to it later. And so we'll see.

550
00:31:40,280 --> 00:31:42,920
Speaker 1: I was going to ask you how the Biden administration

551
00:31:43,160 --> 00:31:47,400
Speaker 1: actually found a judge in Texas who ruled in their favor,

552
00:31:47,520 --> 00:31:51,920
Speaker 1: because it's usually not the case that the district are judges.

553
00:31:51,600 --> 00:31:54,479
Speaker 6: To right the way these Texas divisions are. On the

554
00:31:54,520 --> 00:31:57,480
Speaker 6: southern districts of Texas, it's very hard to find a

555
00:31:57,600 --> 00:32:01,640
Speaker 6: judge who will rule in terms of the more favorable

556
00:32:01,680 --> 00:32:04,000
Speaker 6: pro immigrant rulings. But if you go to other parts

557
00:32:04,040 --> 00:32:07,280
Speaker 6: of Texas, and this particular lawsuit was filed in Austin,

558
00:32:07,800 --> 00:32:10,840
Speaker 6: you actually are more likely to get a judge who

559
00:32:11,000 --> 00:32:14,400
Speaker 6: at least give a larger percentage chance of a judge

560
00:32:14,720 --> 00:32:18,880
Speaker 6: who is more likely to have a disposition that could

561
00:32:18,920 --> 00:32:23,160
Speaker 6: at least be welcoming of argument. And so that's what

562
00:32:23,240 --> 00:32:25,440
Speaker 6: they did. They went to Austin, and they found such.

563
00:32:25,240 --> 00:32:29,080
Speaker 1: A judge Texas stringing the razor wire along the border.

564
00:32:29,200 --> 00:32:31,880
Speaker 6: Right then there's two more cases, the razor wire along

565
00:32:31,920 --> 00:32:36,880
Speaker 6: the borders and the barriers in the water. And so

566
00:32:37,440 --> 00:32:40,760
Speaker 6: for those cases, I mean, the federal government has at

567
00:32:40,800 --> 00:32:44,880
Speaker 6: the moment the ability to cut the razor wire along

568
00:32:45,000 --> 00:32:47,600
Speaker 6: the border if they want to. They have a favorable

569
00:32:47,680 --> 00:32:51,200
Speaker 6: court ruling on that. But the question is do they

570
00:32:51,240 --> 00:32:54,479
Speaker 6: want to engage in what could actually be, you know,

571
00:32:54,680 --> 00:32:59,040
Speaker 6: to describe it in a euphemism, a kinetic interaction with

572
00:32:59,160 --> 00:33:01,000
Speaker 6: the forces that are down there in front of the

573
00:33:01,080 --> 00:33:04,120
Speaker 6: razor wire, who are basically saying, go ahead and try this,

574
00:33:05,080 --> 00:33:07,920
Speaker 6: and that sort of a desire that no one has

575
00:33:08,000 --> 00:33:10,840
Speaker 6: at the moment. I don't think to create such a

576
00:33:10,880 --> 00:33:15,360
Speaker 6: scene of you basically mayhem in terms of the federal

577
00:33:15,400 --> 00:33:19,400
Speaker 6: government cutting down wire that's meant to prevent people from

578
00:33:19,440 --> 00:33:23,360
Speaker 6: coming in illegally. So it's all a mess. But I

579
00:33:23,400 --> 00:33:26,920
Speaker 6: think both sides are sort of content, not content, but

580
00:33:26,960 --> 00:33:31,360
Speaker 6: sort of are stuck where they are now, which is Texas.

581
00:33:31,400 --> 00:33:34,400
Speaker 6: Even though they lost, they're basically saying, go ahead, cut

582
00:33:34,400 --> 00:33:37,680
Speaker 6: the wire. See what happened. And the federal government at

583
00:33:37,760 --> 00:33:41,160
Speaker 6: least won the legal argument. But now the question is

584
00:33:41,200 --> 00:33:43,080
Speaker 6: do they feel the need to cut the wire down?

585
00:33:43,440 --> 00:33:45,800
Speaker 1: Why go to the Supreme Court if you're not going

586
00:33:45,840 --> 00:33:46,880
Speaker 1: to cut the wire?

587
00:33:47,760 --> 00:33:50,760
Speaker 6: Correct? This is where this is work gets complicated.

588
00:33:51,560 --> 00:33:54,480
Speaker 1: It seems like they took this trip to the Supreme Court,

589
00:33:54,560 --> 00:33:58,080
Speaker 1: they made this argument, they won, yep, and now they're

590
00:33:58,120 --> 00:34:00,000
Speaker 1: just saying, Okay, we're going to step back.

591
00:34:00,840 --> 00:34:03,600
Speaker 6: Well, it's just hard. I mean, I suppose you were

592
00:34:04,040 --> 00:34:08,880
Speaker 6: the most anti you know, border wire person in America.

593
00:34:09,000 --> 00:34:12,680
Speaker 6: The question is, are you willing to be so anti

594
00:34:12,760 --> 00:34:16,120
Speaker 6: border wire that you would create a skirmish on the

595
00:34:16,160 --> 00:34:19,320
Speaker 6: southern border that would be televised all over the media

596
00:34:19,400 --> 00:34:22,800
Speaker 6: between federal and state officials where people are fighting about

597
00:34:22,840 --> 00:34:24,720
Speaker 6: cutting over the cutting houses wires.

598
00:34:25,280 --> 00:34:27,839
Speaker 1: Maybe you're right, leon it would show the Biden administration

599
00:34:28,080 --> 00:34:30,879
Speaker 1: cutting down wire. I'm sure at this point they don't

600
00:34:30,880 --> 00:34:32,000
Speaker 1: want that image out.

601
00:34:31,880 --> 00:34:34,359
Speaker 6: There because well, I'm just saying one. It was one

602
00:34:34,400 --> 00:34:37,759
Speaker 6: thing when you were desegregating the schools, and at least

603
00:34:37,800 --> 00:34:40,080
Speaker 6: you were saying, okay, well, you know we we have

604
00:34:40,239 --> 00:34:43,080
Speaker 6: to desegregate the schools, end of the story. But the

605
00:34:43,160 --> 00:34:46,040
Speaker 6: problem is here, you'd be cutting down the wire in

606
00:34:46,200 --> 00:34:49,319
Speaker 6: service of allowing people to cross the border. It's sort

607
00:34:49,360 --> 00:34:54,120
Speaker 6: of a just a no good deed goes unputnished situation. Yes,

608
00:34:54,200 --> 00:34:56,600
Speaker 6: you know, it's just very difficult.

609
00:34:56,840 --> 00:35:00,960
Speaker 1: So that's it for the Texas cases. The current Texas

610
00:35:01,000 --> 00:35:05,520
Speaker 1: cases is Abbot still bussing people to northern cities.

611
00:35:05,920 --> 00:35:10,399
Speaker 6: Oh yeah, that's still going on at a very very

612
00:35:10,520 --> 00:35:13,040
Speaker 6: large slip, and I'm sure it'll go on even further

613
00:35:13,840 --> 00:35:17,399
Speaker 6: as the spring happens and many many more people start

614
00:35:17,440 --> 00:35:20,640
Speaker 6: coming back through the border. And that's going to be

615
00:35:20,640 --> 00:35:24,160
Speaker 6: a very difficult situation because at the moment there's a

616
00:35:24,160 --> 00:35:27,120
Speaker 6: bit of a lull as the winter turns the spring.

617
00:35:27,239 --> 00:35:30,560
Speaker 6: But when the spring spring comes, which is eighty minute now,

618
00:35:31,000 --> 00:35:35,800
Speaker 6: those numbers are going to escalate and it's very unclear

619
00:35:35,840 --> 00:35:37,600
Speaker 6: what's going to happen in a lot of these cities.

620
00:35:39,040 --> 00:35:43,560
Speaker 1: Finally, Leon, my last immigration topic for today. The House

621
00:35:43,680 --> 00:35:47,560
Speaker 1: of Representatives went through this whole thing. They tried it twice.

622
00:35:47,600 --> 00:35:52,080
Speaker 1: They finally impeached my Yorkis is anything happening with that

623
00:35:52,200 --> 00:35:53,720
Speaker 1: or are we waiting till they come back.

624
00:35:54,160 --> 00:35:56,400
Speaker 6: I think that the Senate thoughts that they would be

625
00:35:56,440 --> 00:36:01,319
Speaker 6: able to dismiss this complaint in Toto right up at

626
00:36:01,360 --> 00:36:03,560
Speaker 6: the front. It's not clear that they have the vote

627
00:36:03,600 --> 00:36:05,719
Speaker 6: to do that. And if they don't have the votes

628
00:36:05,800 --> 00:36:07,359
Speaker 6: to do that, then they're going to have to have

629
00:36:07,400 --> 00:36:10,800
Speaker 6: a trial. And if they want to have a trial

630
00:36:10,840 --> 00:36:13,800
Speaker 6: on that thing, then at least the Republicans will be

631
00:36:13,840 --> 00:36:16,120
Speaker 6: able to sort of grant stay in on how poor

632
00:36:16,160 --> 00:36:18,719
Speaker 6: the border is. They won't get one Democratic vote, so

633
00:36:18,760 --> 00:36:21,560
Speaker 6: they won't have anywhere near the sixty seven they need

634
00:36:21,600 --> 00:36:24,640
Speaker 6: to convict my orcist. But the point is, I think

635
00:36:24,680 --> 00:36:28,040
Speaker 6: the endgame is just suspend two or three days. Having

636
00:36:28,120 --> 00:36:32,040
Speaker 6: a trial on the border and how poor is it is.

637
00:36:31,600 --> 00:36:35,160
Speaker 1: Not really something I'd look forward to. But thanks so much, Leon,

638
00:36:35,320 --> 00:36:38,600
Speaker 1: Immigration is going to be one of the top issues

639
00:36:39,200 --> 00:36:43,640
Speaker 1: in the upcoming presidential election, and I appreciate you're giving

640
00:36:43,719 --> 00:36:47,680
Speaker 1: us this mini course on what's happening. That's Leon Fresco,

641
00:36:47,760 --> 00:36:49,960
Speaker 1: a partner at Holland and Knight. And that's it for

642
00:36:50,000 --> 00:36:53,000
Speaker 1: this edition of The Bloomberg Law Podcast. Remember, you've can

643
00:36:53,080 --> 00:36:56,040
Speaker 1: always get the latest legal news by subscribing and listening

644
00:36:56,040 --> 00:36:59,719
Speaker 1: to the show on Apple Podcasts, Spotify, and at bloomberg

645
00:36:59,760 --> 00:37:03,840
Speaker 1: dot com slash podcast, slash Law. I'm June Grosso and

646
00:37:03,960 --> 00:37:05,239
Speaker 1: this is Bloomberg