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

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Speaker 1: The Trump administration is asking the Supreme Court to pause

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Speaker 1: four cases so that the federal agencies involved can reassess

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Speaker 1: the government's position in the cases, signaling the new administration

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Speaker 1: will change the positions taken by the Biden administration. The

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Speaker 1: cases involved a Biden regulation granting loan forgiveness for defrauded

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Speaker 1: student borrowers, an EPA waiver to California, and two other

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Speaker 1: cases involving Biden EPA regulations joining me? Is constitutional law

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Speaker 1: expert Harold Krant, a professor at the Chicago Kent College

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Speaker 1: of Law, How is it fairly recent that a new

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Speaker 1: administration comes in and changes the federal government's position before

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Speaker 1: the Supreme Court?

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Speaker 2: It was a long standing practice where the new administration

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Speaker 2: would defend the legal positions of the prior administration. That

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Speaker 2: has been jettisoned by both Democrats and Republicans in more

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Speaker 2: recent years. And I think it makes some sense. Why

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Speaker 2: waste the court's time to go over something when the

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Speaker 2: administration may change position and moved out the whole controversy here?

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Speaker 3: The administration is asking for a pause.

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Speaker 1: Are they really asking for a pause or since they're

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Speaker 1: asking to stop all written briefing deadlines, does that put

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Speaker 1: the cases on indefinite hold?

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Speaker 2: It puts the cases on indefinite hold. They're asking the

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Speaker 2: court for that leeway in order for the agencies involved

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Speaker 2: in this case, mostly the EPA, to reevaluate and change position.

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Speaker 2: And if the EPA does change the position in three

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Speaker 2: of the four cases, that would moot out the current controversies.

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Speaker 2: At their court agreed to accept they.

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Speaker 1: Want to review Biden's regulation granting loan forgiveness for defrauded

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Speaker 1: student borrowers.

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Speaker 2: So in this case, I think it's quite a sound policy,

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Speaker 2: but it's one that the administration can change. The administration

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Speaker 2: has set up certain kinds of regulations that say, if

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Speaker 2: the student can show that he or she was defrauded

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Speaker 2: by the educational institution, then that creates a borrower defense

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Speaker 2: and the student need not pay back student loans. Obviously,

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Speaker 2: this is controversial as controversial because President Trump was a

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Speaker 2: defendant himself in for the Trump University for some of

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Speaker 2: these prior cases. But it's a relatively straightforward Department of

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Speaker 2: Education policy. Nonetheless, the new Department of Education may want

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Speaker 2: to reconsider and to change the regulations and that therefore

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Speaker 2: would again moved out the case and the court need

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Speaker 2: not waste its resources in deciding whether the Biden administration

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Speaker 2: had the authority to create this boro defense, which the

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Speaker 2: Circuit questioned. But certainly this has caused some concern for

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Speaker 2: students who are deciding whether they have to pay back

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Speaker 2: the loans from education that they may not have actually received.

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Speaker 1: Another case centers on the Environmental Protection Agency's decision to

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Speaker 1: grant California permission to set stronger climate.

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Speaker 3: Rules for cars.

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Speaker 1: So this is that sort of infamous California waiver.

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Speaker 2: Yeah, and the Trump administration actually limited that waiver during

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Speaker 2: the Glasgow round, so it's not surprising that the administration

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Speaker 2: will take another look at allowing California to impose these

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Speaker 2: relatively stringent requirements on one bill manufacturers. Ironically, if you will,

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Speaker 2: the case actually has to do with standing question about

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Speaker 2: whether there is kind of addressability for a claim by

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Speaker 2: industry analysis is that this rule will change the kind

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Speaker 2: of composition of cars in terms of electric, hybrid or

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Speaker 2: gas powered that will be marketed across the country. So

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Speaker 2: the case doesn't really relate to this exemption for California

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Speaker 2: at all. It has to do with whether fuel producers

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Speaker 2: can challenge it. But nonetheless, what the Trump administration said was,

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Speaker 2: we're thinking of limiting the waiver the California So the

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Speaker 2: entire challenge, including the adjustibility issue before the court will

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Speaker 2: be mooted out. And just to add, I mean, it

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Speaker 2: may not be technically mooted out, but there's really no

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Speaker 2: pressing need for the Court to continue its analysis. It's

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Speaker 2: probably alive as an Article three matter, but prudentially there's

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Speaker 2: no reason for the court to hear the case.

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Speaker 1: I mean, why even say that they're just considering it.

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Speaker 1: On his first day back in office, Trump said in

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Speaker 1: an executive order that he was seeking the repeal of

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Speaker 1: the new waiver granted to California in December. So it

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Speaker 1: seems obvious where they are. Why are they pretending they're just.

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Speaker 2: Going to look at it, because it hasn't happened yet.

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Speaker 2: You know, once we get some senior administrators at EPA

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Speaker 2: with some authority, I'm sure that the exemption will be,

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Speaker 2: if not eliminated, at least scaled back for California. But

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Speaker 2: that hasn't happened yet. And to allow at least the

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Speaker 2: new officials to get into office, and to make a

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Speaker 2: binding order. It was a sort of a cautious, respectful

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Speaker 2: approach for the administration to take.

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Speaker 1: The Trump administration also ask the Supreme Court to pause

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Speaker 1: two other environmental cases. Tell us about them.

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Speaker 2: Those cases concern in one case, whether there was a

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Speaker 2: denial of an exemption for field companies to not comply

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Speaker 2: with certain kinds of regulations for clean air. And in

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Speaker 2: the other case, it has to do with the good

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Speaker 2: neighbor policy that the EPA has established and a challenge

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Speaker 2: to that. So in these cases it has to do

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Speaker 2: with actually a venue where these cases can be heard.

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Speaker 2: And the administration said, you know, look, as a technical matter,

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Speaker 2: venue issue is alive. It hasn't been resolved. But if

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Speaker 2: we are going to change our EPA policy so radically,

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Speaker 2: then the underlying lawsuits may not have any kind of

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Speaker 2: both left to them. So you may want to save

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Speaker 2: your resources, Supreme Court and not hear the case.

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Speaker 1: In three of the cases at the court, filing show

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Speaker 1: that at least one party is objecting to halting the schedule.

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Speaker 3: How does that lay in?

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Speaker 1: Is the court likely to grant what the administration wants?

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Speaker 2: I think the court is likely to, but in the

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Speaker 2: past it hasn't always done that. There was someone infamous

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Speaker 2: case at the start of the Biden administration dealing with

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Speaker 2: again an EPA matter, where the Court said, yes, it's

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Speaker 2: unlikely that there's a continuing, active controversy, but it may

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Speaker 2: be resumed so it's not dead from an Article three contest,

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Speaker 2: and so it actually hurt the case. So the Court

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Speaker 2: has the capacity to hear these cases, despite what the

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Speaker 2: Trump administration attorneys have requested. I think they're unlikely to

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Speaker 2: because there is not such a need to clarify the

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Speaker 2: underlying rules at this time or to even decide the

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Speaker 2: venue issue that the Court is likely then to be

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Speaker 2: respectful to the Trump position and get rid of these cases.

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Speaker 4: They have the power to.

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Speaker 2: So we'll have to wait to see, and if.

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Speaker 1: The Supreme Court wants the case is to continue, the

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Speaker 1: justices could point a lawyer to argue the Biden administration's position.

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Speaker 4: Yeah.

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Speaker 2: Look, the Court has done that in the past. You've

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Speaker 2: appointed Niki Kuriei to really represent the interests of the

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Speaker 2: former administration because the current administrations are no longer defending

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Speaker 2: the policy, and the Court has done that for generations

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Speaker 2: in a number of cases where they've done it more

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Speaker 2: frequently in recent years, so it could happen. And so,

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Speaker 2: for instance, give you an example, maybe this question of venue,

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Speaker 2: about whether you can sue only in the DC circuit

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Speaker 2: under a statute is complicating individuals' lives in terms of

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Speaker 2: where to sue. It happened before, it may raise its

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Speaker 2: head again in the future, and so the court says, look,

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Speaker 2: we have a case, let's resolve it now. And that

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Speaker 2: would be a good reason why the court might then

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Speaker 2: appoint someone to represent the Biden administration position on the

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Speaker 2: venue question.

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Speaker 1: On Friday, the Justice Department actually reversed Biden administration position

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Speaker 1: in one case over Louisiana's congressional map.

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Speaker 3: But that won't have any effect on.

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Speaker 1: The case itself, right, because it's not the Biden administration

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Speaker 1: that's suing there. No.

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Speaker 2: In that case, it really had to do with an

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Speaker 2: unusual situation where the Republican Louisiana administration was in favor

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Speaker 2: of the new map and yet it was challenged and

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Speaker 2: held to be in violation of the Voting Rights Act.

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Speaker 2: So it was a very unusual political alignment where the

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Speaker 2: political leadership but Republicans, thought that this was a safer

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Speaker 2: way to comply with the Voting Rights Amendment. But obviously

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Speaker 2: we'll have to see what happens.

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Speaker 1: These requests involve cases that haven't been argued yet. There

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Speaker 1: are some argued cases that seem to shout out that

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Speaker 1: the Trump administration would want to change positions, and one

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Speaker 1: is the case over Tennessee's ban on gender affirming medical

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Speaker 1: care for transgender miners.

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Speaker 2: Yeah, the Scrimmtic case is the one that comes to

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Speaker 2: everybody's mind, and whether the court decided to take the

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Speaker 2: petition that was filed by the Biden administration as opposed

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Speaker 2: to private parties is one for the ages. But it

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Speaker 2: looks pretty clear that the Trump administration may well decide

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Speaker 2: to go slow on the gender firming care and not

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Speaker 2: have the Supreme Court hear the challenge right now. But

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Speaker 2: on the other hand, maybe they think they have the

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Speaker 2: votes and they've pledged it they only want to have

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Speaker 2: two sexes on passports, and maybe they decided they don't

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Speaker 2: want to have gender firming care and they may want

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Speaker 2: the Court to continue to hear the case. But that's

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Speaker 2: a great example of where a change of administration may

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Speaker 2: or may not result in the Court jettis in the case.

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Speaker 1: You know, if you go by the oral arguments, it

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Speaker 1: seemed like Tennessee had the upper hand in the ural arguments.

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Speaker 1: So maybe the Trump administration might want to just take

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Speaker 1: a chance on that.

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Speaker 4: They might.

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Speaker 2: They might, and I think that they are in pretty

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Speaker 2: good shape, not legally but with the Supreme Court, and

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Speaker 2: so they may make a calculation that this is actually

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Speaker 2: furthering their mission to try to get the court to

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Speaker 2: come down and say that it's within the States rights

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Speaker 2: to limit gender of firming.

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Speaker 1: Care also arguments over these ghost guns, which are largely

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Speaker 1: untraceable firearms, and that involves the federal regulation.

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Speaker 3: It's been argued, but that might be.

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Speaker 1: A case where the Trump administration changes position.

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Speaker 2: I think that's going to be a close case because

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Speaker 2: the Biden administration had such a overwhelming case on satutory

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Speaker 2: construction that the regulation could be salvaged. And it's just

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Speaker 2: not clear to me that even the Trump administration is

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Speaker 2: in favor of ghost guns. But as you point out,

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Speaker 2: it's within the purview of the new administration to resin

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Speaker 2: the regulation. And so if they do resin the regulation,

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Speaker 2: then people can manufacture and sell ghost guns in their

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Speaker 2: basements without any kind of identification and pass by all

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Speaker 2: sorts of regulatory hurdles. That's an extreme position, but it's

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Speaker 2: one that the Trump administration might take.

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Speaker 3: And Biden did this too.

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Speaker 1: He asked the Justice Department to freeze the battle over

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Speaker 1: the border wall.

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Speaker 2: The Bide administration tried to get with respect to some

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Speaker 2: environmental cases as well. And I think as respectful of

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Speaker 2: the Court to tell the Court that this may no

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Speaker 2: longer be a true controversy and that the Court is

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Speaker 2: better off using its limited resources in another area. So

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Speaker 2: I think both administrations active respectfully and by asking the

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Speaker 2: Court to pause. And we'll just have to see what

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Speaker 2: the positions the comp administration ultimately will take.

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Speaker 1: Yes, especially when the new Solicitor General is appointed. Thanks

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Speaker 1: so much, Hal. That's Professor Harold Krent of the Chicago

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Speaker 1: Kent College of Law, coming up next on the Bloomberg

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Speaker 1: Law Show. It's a tiny endangered fish that's become part

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Speaker 1: of the culture wars. In fact, President Trump has even

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Speaker 1: blamed it for California's wildfires, but Governor Gavin Newsom begs

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Speaker 1: to differ. I'm June Grosso and you're listening to Bloomberg.

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Speaker 3: This is Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 1: The Delta smelt is a three in silvery bluefish that

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Speaker 1: has somehow become a scapegoat or perhaps escapefish for legal

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Speaker 1: protections to save endangered species and even stranger. President Tromp

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Speaker 1: blames the tiny fish for the devastating California wildfires, saying

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Speaker 1: protections for the Delta smelt led to gaps in water access.

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Speaker 5: They talk about the Delta smelt, which is a fish

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Speaker 5: that's is big, but it is it is really not

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Speaker 5: doesn't have to be protected because it's in other areas.

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Speaker 5: It's in numerous other areas, so it doesn't have to

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Speaker 5: be protected. The people of California have to be protected.

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Speaker 1: Trump even signed an executive order on day one targeting

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Speaker 1: the Delta smelt entitled Putting People over Fish Stopping Radical

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Speaker 1: Environmentalism to provide water to southern California. But Governor Gavin

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Speaker 1: Newsom says that Tromp has the fact all wrong and

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Speaker 1: that state reservoirs in southern California are completely full.

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Speaker 3: And somehow connecting the Delta smelt to this fire, which

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Speaker 3: is inexcusable because it's inaccurate, also incomprehensible to anyone that

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Speaker 3: understands water policy.

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Speaker 5: In the state.

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Speaker 1: Joining me is Caleb Scoville, a sociology professor at Tuff's

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Speaker 1: University who's writing a book on the politics of the

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Speaker 1: Delta smelt. So Caleb, tell us a little about this

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Speaker 1: little fish.

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Speaker 6: The Delta smelt is a small, translucent fish, you know,

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Speaker 6: it's not two three inches long. It lives in the

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Speaker 6: Sacramento San Joaquin Delta, which is where California's major river

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Speaker 6: systems converge, just east of the San Francisco Bay where

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Speaker 6: before the rivers kind of converge and flow out to

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Speaker 6: the Bay. It's a fish that only lives in that area.

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Speaker 6: It's California's largest estuary and it is also the center

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Speaker 6: of California's water district system. So it's where giant pumps

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Speaker 6: were installed in the mid twentieth century to irrigate farmland

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Speaker 6: in the Central Valley California San Joaquin Valley, and also

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Speaker 6: provides water to major cities in central and southern California,

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Speaker 6: as well as the Silicon Valley. So the fish is small,

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Speaker 6: but it's a native fish that used to be one

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Speaker 6: of the most abundant species in that ecosystem, and it

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Speaker 6: has declined in recent decades because of the human transformations

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Speaker 6: of its ecosystem.

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Speaker 1: When did it start to become controversial.

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Speaker 6: That's a complicated question. You know, the species became considered

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Speaker 6: for listing under the Endangered Species Act in the late

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Speaker 6: nineteen eighties and early nineteen nineties, and at the time,

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Speaker 6: you know, it was somewhat controversial because regulators and stakeholders,

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Speaker 6: you know, agricultural interest cities, understood that it may complicate

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Speaker 6: the operation of California's water infrastructure. So it was controversial

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Speaker 6: even before it was listed under the Endangered Species Act.

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Speaker 6: But this controversy was mostly within the world of California

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Speaker 6: water policy. So in the early nineteen nineties, there were

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Speaker 6: you know, concerns about what the effects of protecting this

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Speaker 6: species would be. When it was listed under the Endangered

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Speaker 6: Species Act, it continued to be controversial, but the listening

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Speaker 6: of this species, and also conflict over water quality standards

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Speaker 6: between the federal government and the state government resulted actually

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Speaker 6: in a lot of cooperation to avoid future lawsuits, and

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Speaker 6: so the controversy sort of died down a little bit,

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Speaker 6: and it really wasn't until the mid two thousands, the

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Speaker 6: mid aus and late aughts that the controversy picked up

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Speaker 6: again and This was initially precipitated by a legal decision

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Speaker 6: by a judge in California, actually a Republican appointed judge

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Speaker 6: that the regulations protecting this species from those pumps that

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Speaker 6: send water to farms and cities in California, the way

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Speaker 6: that they were running the pumps was in violation of

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Speaker 6: the Endangerous Species Act, and so this resulted in a

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Speaker 6: brief but dramatics shut off of the pump, and then

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Speaker 6: in order that new regulations had to be put in place.

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Speaker 6: It was twenty seven two eight that this unfolded.

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Speaker 1: Before that was anything in particular done when it was

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Speaker 1: put on the endangered Species list to help preserve it.

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Speaker 6: Yeah, so when a species is listed under the Endangered

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Speaker 6: Species Act, so any federal agency that has a project

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Speaker 6: that's going to affect the species and could potentially cause

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Speaker 6: harm to the species has to come up with basically

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Speaker 6: a plan to avoid jeopardizing and continued existence of that species.

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Speaker 6: So there were regulations that essentially regulated the amount of

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Speaker 6: water that could be pumped at particular times, and then

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Speaker 6: there were a series of other measures, you know, including

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Speaker 6: various ways of managing water that were tried to save

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Speaker 6: the species from extinction. It's complicated. I mean, there were

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Speaker 6: some habitat restoration projects. There was something called the environmental

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Speaker 6: Water account, which is essentially like setting aside a certain

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Speaker 6: amount of water could be used to pump into its

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Speaker 6: habitat at certain periods of time. All of this is

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Speaker 6: basically a way of managing water to try to balance

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Speaker 6: the needs of ecosystems and the human interest in extracting

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Speaker 6: water from its habitat. Now, I should mention that the

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Speaker 6: ADULTA smelt is just one species among many that are

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Speaker 6: affected by California's water distribution system. Salmon that are native

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Speaker 6: to that area are also listed on the Endangered Species

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Speaker 6: Act as our sturgeon, and there's a whole complex ecosystem.

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Speaker 6: So the ADULTA smelt, it's one species, but it's also

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Speaker 6: very sensitive species, so it's often treated as a kind

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Speaker 6: of indicator species for the overall quality and help of

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Speaker 6: the ecosystem. And these initial efforts, it was called the

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Speaker 6: calf Ed program cl feed program were intended to sort

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Speaker 6: of balance the needs of the environment and people's interest

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Speaker 6: in water, and as also as a way to provide

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Speaker 6: stability to avoid future lawsuits that might shut down the

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Speaker 6: system because people were really interested in stability.

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Speaker 1: When the judge issued this order, how did it change

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Speaker 1: what California was doing with its water systems.

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Speaker 6: Or did it did require the agencies to rewrite the

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Speaker 6: way that they were regulating the pumps and managing water

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Speaker 6: in dams. I don't think it's fair to say that

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Speaker 6: it completely reorganized the way water was used in the States.

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Speaker 6: It's a very complex regulatory process that involves using the

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Speaker 6: best available science to come up with a plan to

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Speaker 6: avoid jeopardizing the continued existence of this species. So there

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Speaker 6: was an initial shutdown of water for just a very

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Speaker 6: short amount of time days, and then there was a

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Speaker 6: new regulatory regime that was put in place, and that

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Speaker 6: was in place for many years. Overall, protections of the

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Speaker 6: Delta Smeuth only account for a pretty small, pretty marginal

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Speaker 6: amount of water that could have otherwise been used by people.

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Speaker 6: But it was the dramatic shut off that actually created

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Speaker 6: a lot of headlines. And so really the controversy even

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Speaker 6: then was fairly muted, and what made it a national

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Speaker 6: controversy was actually not anything regulatory at all or anything legal.

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Speaker 6: It was when Sean Hannity had an entire episode of

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Speaker 6: his show on the Delta Smelt sort of blaming drought

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Speaker 6: and Great Recession era hardships on the protections of the

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Speaker 6: Delta Smelt. So that was in two thousand and nine, actually,

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Speaker 6: more than a year after the decision that resulted in

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Speaker 6: the brief shut off of the pumps. So Hannity is

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Speaker 6: actually the person who brought the Delta Smelt into the

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Speaker 6: national public sphere.

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Speaker 1: And why do you think this caught on as a controversy.

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Speaker 6: First of all, was the contact Barack Obama had just

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Speaker 6: become president of the United States. There was also a

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Speaker 6: recession which was causing a lot of employment right after

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Speaker 6: the financial crisis of two thousand and eight. California also

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Speaker 6: at that time, and it continues to be with Trump

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Speaker 6: just kind of an avatar for everything that is supposedly

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Speaker 6: wrong with liberalism and environmentalism in the United States for

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Speaker 6: a certain subset of conservative commentators. So those aspects sort

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Speaker 6: of align. And then the Delta Smelt, being a very

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Speaker 6: small and obscure species that is uncharismatic. You know, it's

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Speaker 6: two inches long, it has a funny name, it became

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Speaker 6: a vessel for the implicit message that liberal environmentalists in

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Speaker 6: cities care more about a small uncharismatic species of fish

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Speaker 6: than they care about hardworking.

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Speaker 2: Honest people like you.

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Speaker 6: So there's a kind of implicit message and sometimes very

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Speaker 6: explicit message that environmentalists simply don't care about their fellow Americans.

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Speaker 6: And you know that could also go for liberals, or

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Speaker 6: could go for Obama, or could go for in this

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Speaker 6: case Skeavin Newsom. And you know, because of the delta

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Speaker 6: smell is a species that doesn't have obvious use to people.

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Speaker 6: Isn't large or beautiful or charismatic. Right, It's not the

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Speaker 6: bald eagle, it's not even the salmon. It becomes a

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Speaker 6: very useful symbol for everything that's supposed to be wrong

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Speaker 6: with environmentalism in America.

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Speaker 1: You wrote that the frequent usage of descriptors like tiny

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Speaker 1: or little suggests that the delta smelt small size and

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Speaker 1: lack of charisma made it the perfect icon to drum

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Speaker 1: up right wing resentment, allowing you to become a divisive

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Speaker 1: cultural object. Yeah, I mean it's a culture war, is

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Speaker 1: fish now?

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Speaker 4: Yeah?

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Speaker 6: Exactly. And so there's a very complex and interesting history

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Speaker 6: of California water that the delta smelt plays a role in.

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Speaker 6: And the delta smelt is regulated by the Amagive Species Act.

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Speaker 6: It has accounted for some amount of water being set

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Speaker 6: aside and not used by people over the years. That's true, However,

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Speaker 6: this is a much smaller proportion than many critics would imagine.

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Speaker 6: And also those regulations that protect the Delta smelt also

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Speaker 6: protect the quality of the water for people to use.

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Speaker 6: Because of the where the pumps are, There's only so

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Speaker 6: much you can extract at a particular time, especially, you know,

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Speaker 6: depending on hydrologic conditions, there's only so much you can

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Speaker 6: extract without pulling in seawater right becoming too salty to

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Speaker 6: even use to irrigate crops or drink.

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Speaker 4: So the idea, you know, that you.

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Speaker 6: Could just stop these regulations and take as much wonder

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Speaker 6: as you want is not true at all. So the

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Speaker 6: culture war thing, you know, in two thousand and nine,

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Speaker 6: I see that as kind of the moment where the

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Speaker 6: delta smelt escaped the world of California water politics. And

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Speaker 6: I've done a systematic media analysis to show that there's

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Speaker 6: no relationship between the hydrologic effects of protecting this species

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Speaker 6: and when the controversy flares up. So really, the delta

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Speaker 6: smelt as culture war symbol or culture war object has

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Speaker 6: very little to do with the world of California water.

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Speaker 1: President Trump has blame protections for this fish for the

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Speaker 1: devastating Palisades fire, that the gaps in water access were

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Speaker 1: due to this delta smelt.

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Speaker 6: Yes, he has, and let's be clear, that's completely false.

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Speaker 2: There's zero truth to it.

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Speaker 4: Right.

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Speaker 6: You can see why that connection would pop into his

403
00:22:43,680 --> 00:22:47,159
Speaker 6: mind because there are regulations of the species that do

404
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Speaker 6: regulate how much water can be extracted from the sacrament

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Speaker 6: of San Juaking Delta to California's water projects, which are

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Speaker 6: the infrastructure systems. So you can understand the connection. But

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Speaker 6: it's very easy to refuse what he said by looking

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Speaker 6: at the reservoir levels in California and in Southern California

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Speaker 6: in particular, most of which are at or above average

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Speaker 6: for this time of year. There's plenty of water, so

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Speaker 6: it's not a supply issue. If there was an issue

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Speaker 6: with how much water we could take out of the

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Speaker 6: delta because of Endangered Species X protection, it would be

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Speaker 6: reflected in the in the reservoir levels. There were issues

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Speaker 6: at the local level for the system that was designed

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Speaker 6: to handle maybe a house fire, to be able to

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Speaker 6: handle a city fire, right and I'm not qualified to

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Speaker 6: say what should have been done there, but the invocation

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Speaker 6: of the delta smelt is a complete misdirection and it

420
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Speaker 6: does nothing to help the situation, and in fact, it

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Speaker 6: distracts from you know, the real tragedy and the real

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Speaker 6: problems that we face in a you know, climate change

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Speaker 6: world and also just in cities that face hazards that

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Speaker 6: we need to need to manage.

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Speaker 1: So what's the status of the delta smelt right now?

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Speaker 6: Yeah, the delta smelt remains listed on the endangered species list,

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Speaker 6: as experts working in the systems and natural scientists working

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Speaker 6: in the system would say, it's arguably functionally extinct. So

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Speaker 6: that doesn't mean that there are no delta smelt left

430
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Speaker 6: in the system, but there are very few. It is

431
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Speaker 6: not what it used to be. There's now actually many

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Speaker 6: more delta smelts living in a captive population sort of

433
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Speaker 6: trying to maintain the species and do some experimental releases

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Speaker 6: to try to potentially propagate it permanently in the delta

435
00:24:23,440 --> 00:24:26,399
Speaker 6: than there are in the wild. So it's actually kind

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Speaker 6: of a sad example of what we've done to ecosystems,

437
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Speaker 6: but it's not as much of a factor in California

438
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Speaker 6: water policy as it might seem given how much we're

439
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Speaker 6: talking about it, And there.

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Speaker 1: Are other protected fish in California.

441
00:24:40,280 --> 00:24:43,160
Speaker 6: There are other species protections like salmon. And you'll notice

442
00:24:43,160 --> 00:24:46,399
Speaker 6: that the folks who will vilify the Delta smelt and

443
00:24:46,440 --> 00:24:49,480
Speaker 6: regulations of the Delta melt rarely mentioned Sam because they

444
00:24:49,480 --> 00:24:52,080
Speaker 6: know that driving salmon to extinction is not a very

445
00:24:52,119 --> 00:24:55,600
Speaker 6: politically popular project. So I think that says something about

446
00:24:55,640 --> 00:24:59,800
Speaker 6: why the Delta smelt is such a useful strategic object

447
00:25:00,040 --> 00:25:02,959
Speaker 6: for people who want to play kind of divisive culture

448
00:25:02,960 --> 00:25:07,320
Speaker 6: war games against environmentalists or imagined environmentalists. But you know,

449
00:25:07,400 --> 00:25:10,120
Speaker 6: there's a lot of other species that probably deserve our

450
00:25:10,359 --> 00:25:11,399
Speaker 6: care just as much.

451
00:25:11,560 --> 00:25:15,560
Speaker 1: It's really a fascinating evolution of the Delta smelt into

452
00:25:15,760 --> 00:25:20,200
Speaker 1: a culture wars issue. Thanks so much, Caleb. That's Caleb Scoville,

453
00:25:20,320 --> 00:25:24,679
Speaker 1: a sociology professor at Tufts University. Coming up next, some

454
00:25:24,880 --> 00:25:27,760
Speaker 1: unique lawsuits against the federal government.

455
00:25:27,720 --> 00:25:30,000
Speaker 3: Over ice raids. This is Bloomberg.

456
00:25:31,440 --> 00:25:35,600
Speaker 1: More arrests in President Trump's cracked down on illegal migrants.

457
00:25:36,119 --> 00:25:40,119
Speaker 1: I says there were nearly twelve hundred arrests yesterday and today.

458
00:25:40,240 --> 00:25:45,359
Speaker 1: Federal agents conducted publicized arrests of undocumented migrants in New

459
00:25:45,440 --> 00:25:49,639
Speaker 1: York City, with the new Homeland Security Secretary Christy Nome

460
00:25:49,800 --> 00:25:53,520
Speaker 1: on hand to watch. She posted a video saying, quote,

461
00:25:53,800 --> 00:25:57,120
Speaker 1: dirt bags like this will continue to be removed from

462
00:25:57,160 --> 00:26:03,280
Speaker 1: our streets. ICE has also touted rests in Chicago, Baltimore, Buffalo, Atlanta,

463
00:26:03,320 --> 00:26:07,800
Speaker 1: and San Francisco, saying the total of arrests since January

464
00:26:07,840 --> 00:26:11,440
Speaker 1: twenty third is three thousand, five hundred and fifty two.

465
00:26:12,000 --> 00:26:15,000
Speaker 1: In the meantime, some novel lawsuits have been filed over

466
00:26:15,040 --> 00:26:20,439
Speaker 1: the Trump immigration enforcement actions. Chicago. Organizations that advocate for

467
00:26:20,520 --> 00:26:24,480
Speaker 1: the national Sanctuary City movement have sued the federal government

468
00:26:24,600 --> 00:26:28,520
Speaker 1: over its decision to conduct mass deportation rates in the city,

469
00:26:28,920 --> 00:26:32,439
Speaker 1: saying that the policy violates their First Amendment rights, and

470
00:26:32,480 --> 00:26:36,119
Speaker 1: a group of Quaker congregations from four states has sued

471
00:26:36,119 --> 00:26:40,120
Speaker 1: the federal government over a recent policy reversal that allows

472
00:26:40,200 --> 00:26:43,960
Speaker 1: immigration agents to conduct searches and arrests in so called

473
00:26:44,000 --> 00:26:48,200
Speaker 1: sensitive areas like churches and schools. They say the policy

474
00:26:48,280 --> 00:26:51,840
Speaker 1: violates their First Amendment rights. Joining me is immigration law

475
00:26:51,880 --> 00:26:55,240
Speaker 1: expert Leon Fresco, a partner at Holland and Knight. Chicago

476
00:26:55,400 --> 00:27:00,159
Speaker 1: organizations are suing the federal government over its decision to

477
00:27:00,200 --> 00:27:03,960
Speaker 1: conduct mass deportation raids in the city. I mean, explain

478
00:27:04,200 --> 00:27:06,119
Speaker 1: what the violation they claim is.

479
00:27:06,720 --> 00:27:10,840
Speaker 4: This is quite a creative lawsuit. I am dubious on

480
00:27:10,960 --> 00:27:14,600
Speaker 4: its chances of success, but basically they are approaching it

481
00:27:14,640 --> 00:27:19,680
Speaker 4: from this premise. They are saying that these Chicago organizations

482
00:27:20,320 --> 00:27:23,399
Speaker 4: have a right to advocate for Chicago to be a

483
00:27:23,440 --> 00:27:28,040
Speaker 4: sanctuary city, and that the Seventh Circuit, which is the

484
00:27:28,240 --> 00:27:31,760
Speaker 4: Court of Appeals that governs the Chicago area, so that's

485
00:27:31,800 --> 00:27:34,560
Speaker 4: the court right below the Supreme Court, has ruled that

486
00:27:34,600 --> 00:27:38,240
Speaker 4: there's nothing that Chicago does that violates anything related to

487
00:27:38,320 --> 00:27:43,919
Speaker 4: immigration law. And so because these groups have a First

488
00:27:43,960 --> 00:27:49,240
Speaker 4: Amendment right to advocate that Chicago maintain its sanctuary policies

489
00:27:49,600 --> 00:27:55,480
Speaker 4: that don't violate immigration law. Because of statements that the

490
00:27:55,600 --> 00:28:00,520
Speaker 4: Trump administration and Trump administration officials have made against Chicago

491
00:28:01,240 --> 00:28:06,000
Speaker 4: saying that because they are so boisterous in their sanctuary

492
00:28:06,119 --> 00:28:11,480
Speaker 4: city policies, they will be retaliated against with immigration enforcement.

493
00:28:11,840 --> 00:28:15,400
Speaker 4: That this is not legitimate immigration enforcement. This is instead

494
00:28:15,840 --> 00:28:19,840
Speaker 4: an attempt to thwart free speech, which could lead to

495
00:28:19,960 --> 00:28:24,280
Speaker 4: the apprehension of perhaps US citizens engaging in free speech

496
00:28:24,400 --> 00:28:29,040
Speaker 4: or helping immigrants, et cetera. And so their requested relief

497
00:28:29,640 --> 00:28:33,360
Speaker 4: is no more raids in Chicago. And so that's where

498
00:28:33,400 --> 00:28:36,479
Speaker 4: I think the case goes a little bit off the rails.

499
00:28:36,560 --> 00:28:41,400
Speaker 4: Is that seems quite broad to fix this potential violation

500
00:28:41,880 --> 00:28:43,160
Speaker 4: their claiming might occur.

501
00:28:44,280 --> 00:28:45,400
Speaker 3: So this is novel.

502
00:28:45,480 --> 00:28:47,880
Speaker 1: Have you ever heard this kind of an argument being

503
00:28:47,920 --> 00:28:48,600
Speaker 1: made before.

504
00:28:49,600 --> 00:28:54,320
Speaker 4: I have seen a similar argument to this with regard

505
00:28:54,440 --> 00:28:58,240
Speaker 4: to people in immigration detention, where they say I've been

506
00:28:58,320 --> 00:29:02,320
Speaker 4: retaliated against because I went on a hunger strike or

507
00:29:02,360 --> 00:29:07,200
Speaker 4: I protested the conditions of my immigration detention, and hence

508
00:29:07,720 --> 00:29:11,120
Speaker 4: my recourse for this should be that I don't get

509
00:29:11,160 --> 00:29:13,600
Speaker 4: deported because I need to be able to pursue this

510
00:29:13,720 --> 00:29:17,600
Speaker 4: claim that my First Amendment rights have been violated. And

511
00:29:17,680 --> 00:29:20,880
Speaker 4: the courts have been very dubious and skeptical of these

512
00:29:21,240 --> 00:29:24,280
Speaker 4: on an individual basis, So to think that they'll do

513
00:29:24,320 --> 00:29:27,560
Speaker 4: it on a city wide basis and just ban, you know,

514
00:29:27,640 --> 00:29:32,160
Speaker 4: these types of enforcement actions in Chicago on this basis

515
00:29:32,640 --> 00:29:35,560
Speaker 4: seems very unlikely. And it's also extremely unlikely because the

516
00:29:35,600 --> 00:29:38,320
Speaker 4: case has been assigned to a judge that was appointed

517
00:29:38,400 --> 00:29:42,160
Speaker 4: vice President Trump. So if they thought that they were

518
00:29:42,160 --> 00:29:44,120
Speaker 4: going to have a good chance, maybe because a different

519
00:29:44,120 --> 00:29:47,080
Speaker 4: type of judge might be appointed. They didn't get the

520
00:29:47,080 --> 00:29:50,959
Speaker 4: best of luck there, and so from that standpoint, I

521
00:29:51,000 --> 00:29:55,760
Speaker 4: think a generally unlawful theory. You know, they lead to

522
00:29:55,760 --> 00:29:58,440
Speaker 4: even more lack of success given where it's been assigned.

523
00:29:59,000 --> 00:29:59,840
Speaker 3: I mean, I don't.

524
00:29:59,720 --> 00:30:04,920
Speaker 1: See how a city can stop lawful deportation raids by

525
00:30:04,960 --> 00:30:05,840
Speaker 1: the federal government.

526
00:30:05,880 --> 00:30:08,840
Speaker 3: I mean, the federal government has the right to make these.

527
00:30:09,000 --> 00:30:11,600
Speaker 4: Raids, right, oh, correct. And this isn't even a city.

528
00:30:11,680 --> 00:30:14,840
Speaker 4: This is organizations within a city saying that they want

529
00:30:14,840 --> 00:30:18,600
Speaker 4: to continue having their free speech and that these raids

530
00:30:18,720 --> 00:30:21,640
Speaker 4: harm their free speech because they're being done in retaliation

531
00:30:21,800 --> 00:30:25,080
Speaker 4: for their free speech. I mean, look, it's worth a shot.

532
00:30:25,200 --> 00:30:29,280
Speaker 4: It's a creative argument. It's interesting, but I don't think

533
00:30:29,280 --> 00:30:31,720
Speaker 4: it's likely to be successful at the end of the day.

534
00:30:32,240 --> 00:30:36,560
Speaker 1: So the Trump administration is targeting, you know, Chicago, also

535
00:30:36,840 --> 00:30:42,920
Speaker 1: targeting New York, and there were raids, and the Secretary

536
00:30:42,960 --> 00:30:47,520
Speaker 1: of Homeland Security went on these raates and she posted

537
00:30:48,000 --> 00:30:48,840
Speaker 1: about the raid.

538
00:30:49,160 --> 00:30:52,440
Speaker 4: Well, I think, look, they are trying to very much

539
00:30:52,720 --> 00:30:57,120
Speaker 4: trigger to the public that immigration enforcement is a thing.

540
00:30:57,240 --> 00:30:59,760
Speaker 4: It's happening. If you are here and legally, you need

541
00:30:59,800 --> 00:31:02,760
Speaker 4: to be afraid of it, and so they're trying to

542
00:31:02,760 --> 00:31:05,000
Speaker 4: get as much bang for the buck as they can,

543
00:31:05,960 --> 00:31:09,160
Speaker 4: knowing that at the end of the day they are

544
00:31:09,280 --> 00:31:12,920
Speaker 4: running up against very soon a significant push up against

545
00:31:13,000 --> 00:31:17,040
Speaker 4: what's the current detention capacity, and so very soon, either

546
00:31:17,080 --> 00:31:19,200
Speaker 4: they're going to have to release the very people they've

547
00:31:19,240 --> 00:31:22,400
Speaker 4: just been arresting and create the sort of hamster wheel

548
00:31:22,400 --> 00:31:24,880
Speaker 4: where they arrest people, they put it on TV, but

549
00:31:25,000 --> 00:31:27,520
Speaker 4: then a couple of weeks later they get released because

550
00:31:27,520 --> 00:31:30,520
Speaker 4: there's no facilities for them, or they're going to have

551
00:31:30,600 --> 00:31:34,960
Speaker 4: to get congressional funding quite quickly to start ramping up

552
00:31:35,080 --> 00:31:39,440
Speaker 4: the detention and removal capacity. But it's not going to

553
00:31:39,480 --> 00:31:44,000
Speaker 4: be sustainable to do a thousand arrests a day, and

554
00:31:44,040 --> 00:31:47,040
Speaker 4: then all of a sudden think that that's going to

555
00:31:47,160 --> 00:31:50,040
Speaker 4: lead to an indefinite ability to do that without more

556
00:31:50,120 --> 00:31:53,680
Speaker 4: detention space, without more imtegration courts, et cetera.

557
00:31:54,080 --> 00:31:59,040
Speaker 1: I'm curious because apparently the New York Police Department told

558
00:31:59,200 --> 00:32:02,120
Speaker 1: officers that it's rules block them because New York is

559
00:32:02,160 --> 00:32:06,160
Speaker 1: a sanctuary city, it's rules block them from participating in

560
00:32:06,240 --> 00:32:09,360
Speaker 1: immigration enforcement actions conducted by ICE.

561
00:32:10,000 --> 00:32:13,000
Speaker 3: But the Mayor Eric Adams.

562
00:32:12,880 --> 00:32:16,400
Speaker 1: Seemed to imply that this was being done in coordination

563
00:32:16,760 --> 00:32:18,440
Speaker 1: with the NYPD.

564
00:32:18,760 --> 00:32:22,560
Speaker 4: Well, I think that what happens is immigration enforcement is

565
00:32:22,600 --> 00:32:25,800
Speaker 4: in the eye of the beholder. And so if the

566
00:32:25,960 --> 00:32:30,640
Speaker 4: NYPD is simply there to protect the ICE agents, so

567
00:32:30,720 --> 00:32:34,560
Speaker 4: to speak, and is not actually interacting in any way

568
00:32:35,200 --> 00:32:39,800
Speaker 4: with the actual people being apprehended, who are the foreign nationals,

569
00:32:40,120 --> 00:32:42,760
Speaker 4: then they can try to have it both ways and

570
00:32:42,920 --> 00:32:47,400
Speaker 4: say they're not in any way, shape or form engaging

571
00:32:47,400 --> 00:32:51,720
Speaker 4: in immigration enforcement. They're there to protect the ICE agents,

572
00:32:52,000 --> 00:32:54,080
Speaker 4: and I think that's what you're seeing there.

573
00:32:54,520 --> 00:32:59,120
Speaker 1: And another novel lawsuit about the raids, a collection of

574
00:32:59,280 --> 00:33:03,480
Speaker 1: Quaker group is suing the Trump administration over its policy

575
00:33:04,080 --> 00:33:11,960
Speaker 1: that allows federal agents to arrest undocumented immigrants in houses

576
00:33:12,000 --> 00:33:12,640
Speaker 1: of worship.

577
00:33:13,080 --> 00:33:17,040
Speaker 4: Yes, this is an outgrowth of the policy that was

578
00:33:17,080 --> 00:33:22,080
Speaker 4: called the Sensitive Locations policy, where the Sensitive Locations Policy

579
00:33:22,200 --> 00:33:27,360
Speaker 4: was actually rescinded and says now that instead of not

580
00:33:27,520 --> 00:33:30,360
Speaker 4: being able to go into places like schools and churches

581
00:33:30,720 --> 00:33:35,440
Speaker 4: to create immigration actions, that there now can be ICE

582
00:33:35,520 --> 00:33:39,240
Speaker 4: going into these churches and schools, et cetera. Now here's

583
00:33:39,280 --> 00:33:42,120
Speaker 4: the interesting thing about that. I don't think ICE has

584
00:33:42,160 --> 00:33:45,280
Speaker 4: any intention of doing large scale raids in schools or

585
00:33:45,360 --> 00:33:48,120
Speaker 4: churches or anywhere else like that in any of those

586
00:33:48,160 --> 00:33:51,000
Speaker 4: sense of locations. But what they are trying to discourage,

587
00:33:51,640 --> 00:33:53,800
Speaker 4: because this has happened a lot. I mean, this happened

588
00:33:53,800 --> 00:33:56,560
Speaker 4: a few times during the Bush administration in two thousand

589
00:33:56,560 --> 00:33:59,720
Speaker 4: and seven, is that people would run into a church

590
00:34:00,120 --> 00:34:03,040
Speaker 4: they saw ice was coming. You know, they'd get some

591
00:34:03,240 --> 00:34:06,000
Speaker 4: notice and they'd see ice coming and they'd run out

592
00:34:06,040 --> 00:34:07,840
Speaker 4: of the back of their house and into a church.

593
00:34:08,360 --> 00:34:11,200
Speaker 4: And that these standoffs would happened in these churches where

594
00:34:11,239 --> 00:34:16,719
Speaker 4: the church would provide sanctuary for the person for months,

595
00:34:16,760 --> 00:34:18,920
Speaker 4: and you'd see articles about this and you'd say, what

596
00:34:19,040 --> 00:34:21,320
Speaker 4: is going on here? And so they're trying to avoid

597
00:34:21,360 --> 00:34:23,200
Speaker 4: them by saying, look, that's not going to happen. We'll

598
00:34:23,239 --> 00:34:25,879
Speaker 4: go in and we will grab that person if they

599
00:34:25,880 --> 00:34:28,440
Speaker 4: expect to run into the church to do that. But

600
00:34:28,719 --> 00:34:31,480
Speaker 4: of course, now you're going to have this lawsuit and

601
00:34:31,840 --> 00:34:34,439
Speaker 4: we'll see how successful it is. I don't think it's

602
00:34:34,600 --> 00:34:38,080
Speaker 4: likely to be successful. But the concept will be that

603
00:34:38,120 --> 00:34:41,839
Speaker 4: they will say that this was a change that is,

604
00:34:41,920 --> 00:34:44,000
Speaker 4: you know, needed to be done by notice and comment

605
00:34:44,200 --> 00:34:48,040
Speaker 4: visa the Administrative Procedure Act, and you can't just make

606
00:34:48,320 --> 00:34:51,719
Speaker 4: such an arbitrary and capricious change. And it's also violating

607
00:34:52,040 --> 00:34:55,479
Speaker 4: the First Amendment freedom of religion because people now won't

608
00:34:55,520 --> 00:34:58,799
Speaker 4: be allowed to worship in the way they want to

609
00:34:59,000 --> 00:35:01,840
Speaker 4: because they're afraid that ice is going to come and

610
00:35:01,880 --> 00:35:05,000
Speaker 4: get them. And so we'll see. I mean, I will

611
00:35:05,040 --> 00:35:10,440
Speaker 4: say this, the Supreme Court has been much more tolerant

612
00:35:10,680 --> 00:35:16,719
Speaker 4: or favorable toward religious based arguments than non religious based arguments.

613
00:35:16,719 --> 00:35:20,600
Speaker 4: So to the extent that one is making a religious

614
00:35:20,600 --> 00:35:25,080
Speaker 4: based argument that your freedom of religion is being impinged

615
00:35:25,160 --> 00:35:28,960
Speaker 4: upon being able to go to church because now you're

616
00:35:29,000 --> 00:35:31,000
Speaker 4: afraid that church is going to be a place where

617
00:35:31,040 --> 00:35:34,279
Speaker 4: you're going to get snagged. I mean, it's interesting. I

618
00:35:34,320 --> 00:35:37,920
Speaker 4: think the question is where does that get narrowly tailored?

619
00:35:37,960 --> 00:35:40,360
Speaker 4: And also, the courts don't like these sort of facial

620
00:35:40,480 --> 00:35:43,759
Speaker 4: challenges without facts. I think what they would say is, look,

621
00:35:43,760 --> 00:35:47,319
Speaker 4: if you come to us with a specific set of

622
00:35:47,440 --> 00:35:51,680
Speaker 4: violations as applied, we may say, yes, as applied, these

623
00:35:51,719 --> 00:35:55,960
Speaker 4: are violating the First Amendment and your free exercise of religion.

624
00:35:56,600 --> 00:36:00,759
Speaker 4: But just telling us that immigration raids in general can

625
00:36:00,880 --> 00:36:04,840
Speaker 4: happen in churches doesn't seem like this kind of facial

626
00:36:04,960 --> 00:36:07,759
Speaker 4: challenge that the Supreme Court likes. So you have their

627
00:36:07,760 --> 00:36:11,919
Speaker 4: aversion to facial challenges, plus you have their favorability toward

628
00:36:11,960 --> 00:36:15,319
Speaker 4: religious challenges. Plus you have the fact that a lot

629
00:36:15,320 --> 00:36:18,440
Speaker 4: of people do like immigration enforcement in the Supreme Court,

630
00:36:18,880 --> 00:36:23,640
Speaker 4: all clashing together. But my imagination would be that the

631
00:36:23,719 --> 00:36:28,320
Speaker 4: immigration enforcement will prevail there until specific examples are given.

632
00:36:28,680 --> 00:36:31,600
Speaker 1: It makes more sense to me than the sanctuary Cities case.

633
00:36:31,640 --> 00:36:34,440
Speaker 1: At least it's got your first amendment in religion, whereas

634
00:36:34,440 --> 00:36:38,160
Speaker 1: the sanctuary Cities case, the argument seems really attenuated.

635
00:36:38,800 --> 00:36:40,920
Speaker 4: It's a little bit more of a challenge to win

636
00:36:40,960 --> 00:36:41,440
Speaker 4: that case.

637
00:36:41,760 --> 00:36:42,200
Speaker 3: But as you.

638
00:36:42,200 --> 00:36:47,040
Speaker 1: Said, both are challenging. Thanks so much, Leon. That's Leon Fresco,

639
00:36:47,200 --> 00:36:50,400
Speaker 1: a partnered hollanden Knight. And In other legal news today,

640
00:36:50,600 --> 00:36:54,320
Speaker 1: a federal judge in Washington has temporarily blocked the Trump

641
00:36:54,360 --> 00:36:58,719
Speaker 1: administration from enforcing a new directive to hal payments of

642
00:36:58,800 --> 00:37:02,680
Speaker 1: federal grants, loans, and other assistants to an array of

643
00:37:02,760 --> 00:37:06,400
Speaker 1: programs across the country. The order was in response to

644
00:37:06,440 --> 00:37:11,239
Speaker 1: a lawsuit filed by a coalition of nonprofit organizations challenging

645
00:37:11,280 --> 00:37:14,840
Speaker 1: the payment freeze. The suit claims that even a temporary

646
00:37:14,880 --> 00:37:19,120
Speaker 1: halt in funding could immediately deprive people and communities of

647
00:37:19,160 --> 00:37:23,840
Speaker 1: their life saving services, including healthcare, small business support, and

648
00:37:23,960 --> 00:37:28,720
Speaker 1: programs for the LGBTQ community. The judge will hold another

649
00:37:28,760 --> 00:37:32,120
Speaker 1: hearing on February third to consider whether to order a

650
00:37:32,239 --> 00:37:35,200
Speaker 1: longer term freeze. And that's it for this edition of

651
00:37:35,200 --> 00:37:37,840
Speaker 1: The Bloomberg Law Show. Remember you can always get the

652
00:37:37,880 --> 00:37:41,120
Speaker 1: latest legal news on our Bloomberg Law podcasts. You can

653
00:37:41,160 --> 00:37:45,399
Speaker 1: find them on Apple Podcasts, Spotify, and at www dot

654
00:37:45,400 --> 00:37:49,600
Speaker 1: bloomberg dot com slash podcast Slash Law, And remember to

655
00:37:49,640 --> 00:37:52,680
Speaker 1: tune into The Bloomberg Law Show every weeknight at ten

656
00:37:52,760 --> 00:37:56,520
Speaker 1: pm Wall Street Time. I'm June Grosso and you're listening

657
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Speaker 1: to Bloomberg