Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 1: The Trump administration is asking the Supreme Court to pause
Speaker 1: four cases so that the federal agencies involved can reassess
Speaker 1: the government's position in the cases, signaling the new administration
Speaker 1: will change the positions taken by the Biden administration. The
Speaker 1: cases involved a Biden regulation granting loan forgiveness for defrauded
Speaker 1: student borrowers, an EPA waiver to California, and two other
Speaker 1: cases involving Biden EPA regulations joining me? Is constitutional law
Speaker 1: expert Harold Krant, a professor at the Chicago Kent College
Speaker 1: of Law, How is it fairly recent that a new
Speaker 1: administration comes in and changes the federal government's position before
Speaker 1: the Supreme Court?
Speaker 2: It was a long standing practice where the new administration
Speaker 2: would defend the legal positions of the prior administration. That
Speaker 2: has been jettisoned by both Democrats and Republicans in more
Speaker 2: recent years. And I think it makes some sense. Why
Speaker 2: waste the court's time to go over something when the
Speaker 2: administration may change position and moved out the whole controversy here?
Speaker 3: The administration is asking for a pause.
Speaker 1: Are they really asking for a pause or since they're
Speaker 1: asking to stop all written briefing deadlines, does that put
Speaker 1: the cases on indefinite hold?
Speaker 2: It puts the cases on indefinite hold. They're asking the
Speaker 2: court for that leeway in order for the agencies involved
Speaker 2: in this case, mostly the EPA, to reevaluate and change position.
Speaker 2: And if the EPA does change the position in three
Speaker 2: of the four cases, that would moot out the current controversies.
Speaker 2: At their court agreed to accept they.
Speaker 1: Want to review Biden's regulation granting loan forgiveness for defrauded
Speaker 1: student borrowers.
Speaker 2: So in this case, I think it's quite a sound policy,
Speaker 2: but it's one that the administration can change. The administration
Speaker 2: has set up certain kinds of regulations that say, if
Speaker 2: the student can show that he or she was defrauded
Speaker 2: by the educational institution, then that creates a borrower defense
Speaker 2: and the student need not pay back student loans. Obviously,
Speaker 2: this is controversial as controversial because President Trump was a
Speaker 2: defendant himself in for the Trump University for some of
Speaker 2: these prior cases. But it's a relatively straightforward Department of
Speaker 2: Education policy. Nonetheless, the new Department of Education may want
Speaker 2: to reconsider and to change the regulations and that therefore
Speaker 2: would again moved out the case and the court need
Speaker 2: not waste its resources in deciding whether the Biden administration
Speaker 2: had the authority to create this boro defense, which the
Speaker 2: Circuit questioned. But certainly this has caused some concern for
Speaker 2: students who are deciding whether they have to pay back
Speaker 2: the loans from education that they may not have actually received.
Speaker 1: Another case centers on the Environmental Protection Agency's decision to
Speaker 1: grant California permission to set stronger climate.
Speaker 3: Rules for cars.
Speaker 1: So this is that sort of infamous California waiver.
Speaker 2: Yeah, and the Trump administration actually limited that waiver during
Speaker 2: the Glasgow round, so it's not surprising that the administration
Speaker 2: will take another look at allowing California to impose these
Speaker 2: relatively stringent requirements on one bill manufacturers. Ironically, if you will,
Speaker 2: the case actually has to do with standing question about
Speaker 2: whether there is kind of addressability for a claim by
Speaker 2: industry analysis is that this rule will change the kind
Speaker 2: of composition of cars in terms of electric, hybrid or
Speaker 2: gas powered that will be marketed across the country. So
Speaker 2: the case doesn't really relate to this exemption for California
Speaker 2: at all. It has to do with whether fuel producers
Speaker 2: can challenge it. But nonetheless, what the Trump administration said was,
Speaker 2: we're thinking of limiting the waiver the California So the
Speaker 2: entire challenge, including the adjustibility issue before the court will
Speaker 2: be mooted out. And just to add, I mean, it
Speaker 2: may not be technically mooted out, but there's really no
Speaker 2: pressing need for the Court to continue its analysis. It's
Speaker 2: probably alive as an Article three matter, but prudentially there's
Speaker 2: no reason for the court to hear the case.
Speaker 1: I mean, why even say that they're just considering it.
Speaker 1: On his first day back in office, Trump said in
Speaker 1: an executive order that he was seeking the repeal of
Speaker 1: the new waiver granted to California in December. So it
Speaker 1: seems obvious where they are. Why are they pretending they're just.
Speaker 2: Going to look at it, because it hasn't happened yet.
Speaker 2: You know, once we get some senior administrators at EPA
Speaker 2: with some authority, I'm sure that the exemption will be,
Speaker 2: if not eliminated, at least scaled back for California. But
Speaker 2: that hasn't happened yet. And to allow at least the
Speaker 2: new officials to get into office, and to make a
Speaker 2: binding order. It was a sort of a cautious, respectful
Speaker 2: approach for the administration to take.
Speaker 1: The Trump administration also ask the Supreme Court to pause
Speaker 1: two other environmental cases. Tell us about them.
Speaker 2: Those cases concern in one case, whether there was a
Speaker 2: denial of an exemption for field companies to not comply
Speaker 2: with certain kinds of regulations for clean air. And in
Speaker 2: the other case, it has to do with the good
Speaker 2: neighbor policy that the EPA has established and a challenge
Speaker 2: to that. So in these cases it has to do
Speaker 2: with actually a venue where these cases can be heard.
Speaker 2: And the administration said, you know, look, as a technical matter,
Speaker 2: venue issue is alive. It hasn't been resolved. But if
Speaker 2: we are going to change our EPA policy so radically,
Speaker 2: then the underlying lawsuits may not have any kind of
Speaker 2: both left to them. So you may want to save
Speaker 2: your resources, Supreme Court and not hear the case.
Speaker 1: In three of the cases at the court, filing show
Speaker 1: that at least one party is objecting to halting the schedule.
Speaker 3: How does that lay in?
Speaker 1: Is the court likely to grant what the administration wants?
Speaker 2: I think the court is likely to, but in the
Speaker 2: past it hasn't always done that. There was someone infamous
Speaker 2: case at the start of the Biden administration dealing with
Speaker 2: again an EPA matter, where the Court said, yes, it's
Speaker 2: unlikely that there's a continuing, active controversy, but it may
Speaker 2: be resumed so it's not dead from an Article three contest,
Speaker 2: and so it actually hurt the case. So the Court
Speaker 2: has the capacity to hear these cases, despite what the
Speaker 2: Trump administration attorneys have requested. I think they're unlikely to
Speaker 2: because there is not such a need to clarify the
Speaker 2: underlying rules at this time or to even decide the
Speaker 2: venue issue that the Court is likely then to be
Speaker 2: respectful to the Trump position and get rid of these cases.
Speaker 4: They have the power to.
Speaker 2: So we'll have to wait to see, and if.
Speaker 1: The Supreme Court wants the case is to continue, the
Speaker 1: justices could point a lawyer to argue the Biden administration's position.
Speaker 4: Yeah.
Speaker 2: Look, the Court has done that in the past. You've
Speaker 2: appointed Niki Kuriei to really represent the interests of the
Speaker 2: former administration because the current administrations are no longer defending
Speaker 2: the policy, and the Court has done that for generations
Speaker 2: in a number of cases where they've done it more
Speaker 2: frequently in recent years, so it could happen. And so,
Speaker 2: for instance, give you an example, maybe this question of venue,
Speaker 2: about whether you can sue only in the DC circuit
Speaker 2: under a statute is complicating individuals' lives in terms of
Speaker 2: where to sue. It happened before, it may raise its
Speaker 2: head again in the future, and so the court says, look,
Speaker 2: we have a case, let's resolve it now. And that
Speaker 2: would be a good reason why the court might then
Speaker 2: appoint someone to represent the Biden administration position on the
Speaker 2: venue question.
Speaker 1: On Friday, the Justice Department actually reversed Biden administration position
Speaker 1: in one case over Louisiana's congressional map.
Speaker 3: But that won't have any effect on.
Speaker 1: The case itself, right, because it's not the Biden administration
Speaker 1: that's suing there. No.
Speaker 2: In that case, it really had to do with an
Speaker 2: unusual situation where the Republican Louisiana administration was in favor
Speaker 2: of the new map and yet it was challenged and
Speaker 2: held to be in violation of the Voting Rights Act.
Speaker 2: So it was a very unusual political alignment where the
Speaker 2: political leadership but Republicans, thought that this was a safer
Speaker 2: way to comply with the Voting Rights Amendment. But obviously
Speaker 2: we'll have to see what happens.
Speaker 1: These requests involve cases that haven't been argued yet. There
Speaker 1: are some argued cases that seem to shout out that
Speaker 1: the Trump administration would want to change positions, and one
Speaker 1: is the case over Tennessee's ban on gender affirming medical
Speaker 1: care for transgender miners.
Speaker 2: Yeah, the Scrimmtic case is the one that comes to
Speaker 2: everybody's mind, and whether the court decided to take the
Speaker 2: petition that was filed by the Biden administration as opposed
Speaker 2: to private parties is one for the ages. But it
Speaker 2: looks pretty clear that the Trump administration may well decide
Speaker 2: to go slow on the gender firming care and not
Speaker 2: have the Supreme Court hear the challenge right now. But
Speaker 2: on the other hand, maybe they think they have the
Speaker 2: votes and they've pledged it they only want to have
Speaker 2: two sexes on passports, and maybe they decided they don't
Speaker 2: want to have gender firming care and they may want
Speaker 2: the Court to continue to hear the case. But that's
Speaker 2: a great example of where a change of administration may
Speaker 2: or may not result in the Court jettis in the case.
Speaker 1: You know, if you go by the oral arguments, it
Speaker 1: seemed like Tennessee had the upper hand in the ural arguments.
Speaker 1: So maybe the Trump administration might want to just take
Speaker 1: a chance on that.
Speaker 4: They might.
Speaker 2: They might, and I think that they are in pretty
Speaker 2: good shape, not legally but with the Supreme Court, and
Speaker 2: so they may make a calculation that this is actually
Speaker 2: furthering their mission to try to get the court to
Speaker 2: come down and say that it's within the States rights
Speaker 2: to limit gender of firming.
Speaker 1: Care also arguments over these ghost guns, which are largely
Speaker 1: untraceable firearms, and that involves the federal regulation.
Speaker 3: It's been argued, but that might be.
Speaker 1: A case where the Trump administration changes position.
Speaker 2: I think that's going to be a close case because
Speaker 2: the Biden administration had such a overwhelming case on satutory
Speaker 2: construction that the regulation could be salvaged. And it's just
Speaker 2: not clear to me that even the Trump administration is
Speaker 2: in favor of ghost guns. But as you point out,
Speaker 2: it's within the purview of the new administration to resin
Speaker 2: the regulation. And so if they do resin the regulation,
Speaker 2: then people can manufacture and sell ghost guns in their
Speaker 2: basements without any kind of identification and pass by all
Speaker 2: sorts of regulatory hurdles. That's an extreme position, but it's
Speaker 2: one that the Trump administration might take.
Speaker 3: And Biden did this too.
Speaker 1: He asked the Justice Department to freeze the battle over
Speaker 1: the border wall.
Speaker 2: The Bide administration tried to get with respect to some
Speaker 2: environmental cases as well. And I think as respectful of
Speaker 2: the Court to tell the Court that this may no
Speaker 2: longer be a true controversy and that the Court is
Speaker 2: better off using its limited resources in another area. So
Speaker 2: I think both administrations active respectfully and by asking the
Speaker 2: Court to pause. And we'll just have to see what
Speaker 2: the positions the comp administration ultimately will take.
Speaker 1: Yes, especially when the new Solicitor General is appointed. Thanks
Speaker 1: so much, Hal. That's Professor Harold Krent of the Chicago
Speaker 1: Kent College of Law, coming up next on the Bloomberg
Speaker 1: Law Show. It's a tiny endangered fish that's become part
Speaker 1: of the culture wars. In fact, President Trump has even
Speaker 1: blamed it for California's wildfires, but Governor Gavin Newsom begs
Speaker 1: to differ. I'm June Grosso and you're listening to Bloomberg.
Speaker 3: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 1: The Delta smelt is a three in silvery bluefish that
Speaker 1: has somehow become a scapegoat or perhaps escapefish for legal
Speaker 1: protections to save endangered species and even stranger. President Tromp
Speaker 1: blames the tiny fish for the devastating California wildfires, saying
Speaker 1: protections for the Delta smelt led to gaps in water access.
Speaker 5: They talk about the Delta smelt, which is a fish
Speaker 5: that's is big, but it is it is really not
Speaker 5: doesn't have to be protected because it's in other areas.
Speaker 5: It's in numerous other areas, so it doesn't have to
Speaker 5: be protected. The people of California have to be protected.
Speaker 1: Trump even signed an executive order on day one targeting
Speaker 1: the Delta smelt entitled Putting People over Fish Stopping Radical
Speaker 1: Environmentalism to provide water to southern California. But Governor Gavin
Speaker 1: Newsom says that Tromp has the fact all wrong and
Speaker 1: that state reservoirs in southern California are completely full.
Speaker 3: And somehow connecting the Delta smelt to this fire, which
Speaker 3: is inexcusable because it's inaccurate, also incomprehensible to anyone that
Speaker 3: understands water policy.
Speaker 5: In the state.
Speaker 1: Joining me is Caleb Scoville, a sociology professor at Tuff's
Speaker 1: University who's writing a book on the politics of the
Speaker 1: Delta smelt. So Caleb, tell us a little about this
Speaker 1: little fish.
Speaker 6: The Delta smelt is a small, translucent fish, you know,
Speaker 6: it's not two three inches long. It lives in the
Speaker 6: Sacramento San Joaquin Delta, which is where California's major river
Speaker 6: systems converge, just east of the San Francisco Bay where
Speaker 6: before the rivers kind of converge and flow out to
Speaker 6: the Bay. It's a fish that only lives in that area.
Speaker 6: It's California's largest estuary and it is also the center
Speaker 6: of California's water district system. So it's where giant pumps
Speaker 6: were installed in the mid twentieth century to irrigate farmland
Speaker 6: in the Central Valley California San Joaquin Valley, and also
Speaker 6: provides water to major cities in central and southern California,
Speaker 6: as well as the Silicon Valley. So the fish is small,
Speaker 6: but it's a native fish that used to be one
Speaker 6: of the most abundant species in that ecosystem, and it
Speaker 6: has declined in recent decades because of the human transformations
Speaker 6: of its ecosystem.
Speaker 1: When did it start to become controversial.
Speaker 6: That's a complicated question. You know, the species became considered
Speaker 6: for listing under the Endangered Species Act in the late
Speaker 6: nineteen eighties and early nineteen nineties, and at the time,
Speaker 6: you know, it was somewhat controversial because regulators and stakeholders,
Speaker 6: you know, agricultural interest cities, understood that it may complicate
Speaker 6: the operation of California's water infrastructure. So it was controversial
Speaker 6: even before it was listed under the Endangered Species Act.
Speaker 6: But this controversy was mostly within the world of California
Speaker 6: water policy. So in the early nineteen nineties, there were
Speaker 6: you know, concerns about what the effects of protecting this
Speaker 6: species would be. When it was listed under the Endangered
Speaker 6: Species Act, it continued to be controversial, but the listening
Speaker 6: of this species, and also conflict over water quality standards
Speaker 6: between the federal government and the state government resulted actually
Speaker 6: in a lot of cooperation to avoid future lawsuits, and
Speaker 6: so the controversy sort of died down a little bit,
Speaker 6: and it really wasn't until the mid two thousands, the
Speaker 6: mid aus and late aughts that the controversy picked up
Speaker 6: again and This was initially precipitated by a legal decision
Speaker 6: by a judge in California, actually a Republican appointed judge
Speaker 6: that the regulations protecting this species from those pumps that
Speaker 6: send water to farms and cities in California, the way
Speaker 6: that they were running the pumps was in violation of
Speaker 6: the Endangerous Species Act, and so this resulted in a
Speaker 6: brief but dramatics shut off of the pump, and then
Speaker 6: in order that new regulations had to be put in place.
Speaker 6: It was twenty seven two eight that this unfolded.
Speaker 1: Before that was anything in particular done when it was
Speaker 1: put on the endangered Species list to help preserve it.
Speaker 6: Yeah, so when a species is listed under the Endangered
Speaker 6: Species Act, so any federal agency that has a project
Speaker 6: that's going to affect the species and could potentially cause
Speaker 6: harm to the species has to come up with basically
Speaker 6: a plan to avoid jeopardizing and continued existence of that species.
Speaker 6: So there were regulations that essentially regulated the amount of
Speaker 6: water that could be pumped at particular times, and then
Speaker 6: there were a series of other measures, you know, including
Speaker 6: various ways of managing water that were tried to save
Speaker 6: the species from extinction. It's complicated. I mean, there were
Speaker 6: some habitat restoration projects. There was something called the environmental
Speaker 6: Water account, which is essentially like setting aside a certain
Speaker 6: amount of water could be used to pump into its
Speaker 6: habitat at certain periods of time. All of this is
Speaker 6: basically a way of managing water to try to balance
Speaker 6: the needs of ecosystems and the human interest in extracting
Speaker 6: water from its habitat. Now, I should mention that the
Speaker 6: ADULTA smelt is just one species among many that are
Speaker 6: affected by California's water distribution system. Salmon that are native
Speaker 6: to that area are also listed on the Endangered Species
Speaker 6: Act as our sturgeon, and there's a whole complex ecosystem.
Speaker 6: So the ADULTA smelt, it's one species, but it's also
Speaker 6: very sensitive species, so it's often treated as a kind
Speaker 6: of indicator species for the overall quality and help of
Speaker 6: the ecosystem. And these initial efforts, it was called the
Speaker 6: calf Ed program cl feed program were intended to sort
Speaker 6: of balance the needs of the environment and people's interest
Speaker 6: in water, and as also as a way to provide
Speaker 6: stability to avoid future lawsuits that might shut down the
Speaker 6: system because people were really interested in stability.
Speaker 1: When the judge issued this order, how did it change
Speaker 1: what California was doing with its water systems.
Speaker 6: Or did it did require the agencies to rewrite the
Speaker 6: way that they were regulating the pumps and managing water
Speaker 6: in dams. I don't think it's fair to say that
Speaker 6: it completely reorganized the way water was used in the States.
Speaker 6: It's a very complex regulatory process that involves using the
Speaker 6: best available science to come up with a plan to
Speaker 6: avoid jeopardizing the continued existence of this species. So there
Speaker 6: was an initial shutdown of water for just a very
Speaker 6: short amount of time days, and then there was a
Speaker 6: new regulatory regime that was put in place, and that
Speaker 6: was in place for many years. Overall, protections of the
Speaker 6: Delta Smeuth only account for a pretty small, pretty marginal
Speaker 6: amount of water that could have otherwise been used by people.
Speaker 6: But it was the dramatic shut off that actually created
Speaker 6: a lot of headlines. And so really the controversy even
Speaker 6: then was fairly muted, and what made it a national
Speaker 6: controversy was actually not anything regulatory at all or anything legal.
Speaker 6: It was when Sean Hannity had an entire episode of
Speaker 6: his show on the Delta Smelt sort of blaming drought
Speaker 6: and Great Recession era hardships on the protections of the
Speaker 6: Delta Smelt. So that was in two thousand and nine, actually,
Speaker 6: more than a year after the decision that resulted in
Speaker 6: the brief shut off of the pumps. So Hannity is
Speaker 6: actually the person who brought the Delta Smelt into the
Speaker 6: national public sphere.
Speaker 1: And why do you think this caught on as a controversy.
Speaker 6: First of all, was the contact Barack Obama had just
Speaker 6: become president of the United States. There was also a
Speaker 6: recession which was causing a lot of employment right after
Speaker 6: the financial crisis of two thousand and eight. California also
Speaker 6: at that time, and it continues to be with Trump
Speaker 6: just kind of an avatar for everything that is supposedly
Speaker 6: wrong with liberalism and environmentalism in the United States for
Speaker 6: a certain subset of conservative commentators. So those aspects sort
Speaker 6: of align. And then the Delta Smelt, being a very
Speaker 6: small and obscure species that is uncharismatic. You know, it's
Speaker 6: two inches long, it has a funny name, it became
Speaker 6: a vessel for the implicit message that liberal environmentalists in
Speaker 6: cities care more about a small uncharismatic species of fish
Speaker 6: than they care about hardworking.
Speaker 2: Honest people like you.
Speaker 6: So there's a kind of implicit message and sometimes very
Speaker 6: explicit message that environmentalists simply don't care about their fellow Americans.
Speaker 6: And you know that could also go for liberals, or
Speaker 6: could go for Obama, or could go for in this
Speaker 6: case Skeavin Newsom. And you know, because of the delta
Speaker 6: smell is a species that doesn't have obvious use to people.
Speaker 6: Isn't large or beautiful or charismatic. Right, It's not the
Speaker 6: bald eagle, it's not even the salmon. It becomes a
Speaker 6: very useful symbol for everything that's supposed to be wrong
Speaker 6: with environmentalism in America.
Speaker 1: You wrote that the frequent usage of descriptors like tiny
Speaker 1: or little suggests that the delta smelt small size and
Speaker 1: lack of charisma made it the perfect icon to drum
Speaker 1: up right wing resentment, allowing you to become a divisive
Speaker 1: cultural object. Yeah, I mean it's a culture war, is
Speaker 1: fish now?
Speaker 4: Yeah?
Speaker 6: Exactly. And so there's a very complex and interesting history
Speaker 6: of California water that the delta smelt plays a role in.
Speaker 6: And the delta smelt is regulated by the Amagive Species Act.
Speaker 6: It has accounted for some amount of water being set
Speaker 6: aside and not used by people over the years. That's true, However,
Speaker 6: this is a much smaller proportion than many critics would imagine.
Speaker 6: And also those regulations that protect the Delta smelt also
Speaker 6: protect the quality of the water for people to use.
Speaker 6: Because of the where the pumps are, There's only so
Speaker 6: much you can extract at a particular time, especially, you know,
Speaker 6: depending on hydrologic conditions, there's only so much you can
Speaker 6: extract without pulling in seawater right becoming too salty to
Speaker 6: even use to irrigate crops or drink.
Speaker 4: So the idea, you know, that you.
Speaker 6: Could just stop these regulations and take as much wonder
Speaker 6: as you want is not true at all. So the
Speaker 6: culture war thing, you know, in two thousand and nine,
Speaker 6: I see that as kind of the moment where the
Speaker 6: delta smelt escaped the world of California water politics. And
Speaker 6: I've done a systematic media analysis to show that there's
Speaker 6: no relationship between the hydrologic effects of protecting this species
Speaker 6: and when the controversy flares up. So really, the delta
Speaker 6: smelt as culture war symbol or culture war object has
Speaker 6: very little to do with the world of California water.
Speaker 1: President Trump has blame protections for this fish for the
Speaker 1: devastating Palisades fire, that the gaps in water access were
Speaker 1: due to this delta smelt.
Speaker 6: Yes, he has, and let's be clear, that's completely false.
Speaker 2: There's zero truth to it.
Speaker 4: Right.
Speaker 6: You can see why that connection would pop into his
Speaker 6: mind because there are regulations of the species that do
Speaker 6: regulate how much water can be extracted from the sacrament
Speaker 6: of San Juaking Delta to California's water projects, which are
Speaker 6: the infrastructure systems. So you can understand the connection. But
Speaker 6: it's very easy to refuse what he said by looking
Speaker 6: at the reservoir levels in California and in Southern California
Speaker 6: in particular, most of which are at or above average
Speaker 6: for this time of year. There's plenty of water, so
Speaker 6: it's not a supply issue. If there was an issue
Speaker 6: with how much water we could take out of the
Speaker 6: delta because of Endangered Species X protection, it would be
Speaker 6: reflected in the in the reservoir levels. There were issues
Speaker 6: at the local level for the system that was designed
Speaker 6: to handle maybe a house fire, to be able to
Speaker 6: handle a city fire, right and I'm not qualified to
Speaker 6: say what should have been done there, but the invocation
Speaker 6: of the delta smelt is a complete misdirection and it
Speaker 6: does nothing to help the situation, and in fact, it
Speaker 6: distracts from you know, the real tragedy and the real
Speaker 6: problems that we face in a you know, climate change
Speaker 6: world and also just in cities that face hazards that
Speaker 6: we need to need to manage.
Speaker 1: So what's the status of the delta smelt right now?
Speaker 6: Yeah, the delta smelt remains listed on the endangered species list,
Speaker 6: as experts working in the systems and natural scientists working
Speaker 6: in the system would say, it's arguably functionally extinct. So
Speaker 6: that doesn't mean that there are no delta smelt left
Speaker 6: in the system, but there are very few. It is
Speaker 6: not what it used to be. There's now actually many
Speaker 6: more delta smelts living in a captive population sort of
Speaker 6: trying to maintain the species and do some experimental releases
Speaker 6: to try to potentially propagate it permanently in the delta
Speaker 6: than there are in the wild. So it's actually kind
Speaker 6: of a sad example of what we've done to ecosystems,
Speaker 6: but it's not as much of a factor in California
Speaker 6: water policy as it might seem given how much we're
Speaker 6: talking about it, And there.
Speaker 1: Are other protected fish in California.
Speaker 6: There are other species protections like salmon. And you'll notice
Speaker 6: that the folks who will vilify the Delta smelt and
Speaker 6: regulations of the Delta melt rarely mentioned Sam because they
Speaker 6: know that driving salmon to extinction is not a very
Speaker 6: politically popular project. So I think that says something about
Speaker 6: why the Delta smelt is such a useful strategic object
Speaker 6: for people who want to play kind of divisive culture
Speaker 6: war games against environmentalists or imagined environmentalists. But you know,
Speaker 6: there's a lot of other species that probably deserve our
Speaker 6: care just as much.
Speaker 1: It's really a fascinating evolution of the Delta smelt into
Speaker 1: a culture wars issue. Thanks so much, Caleb. That's Caleb Scoville,
Speaker 1: a sociology professor at Tufts University. Coming up next, some
Speaker 1: unique lawsuits against the federal government.
Speaker 3: Over ice raids. This is Bloomberg.
Speaker 1: More arrests in President Trump's cracked down on illegal migrants.
Speaker 1: I says there were nearly twelve hundred arrests yesterday and today.
Speaker 1: Federal agents conducted publicized arrests of undocumented migrants in New
Speaker 1: York City, with the new Homeland Security Secretary Christy Nome
Speaker 1: on hand to watch. She posted a video saying, quote,
Speaker 1: dirt bags like this will continue to be removed from
Speaker 1: our streets. ICE has also touted rests in Chicago, Baltimore, Buffalo, Atlanta,
Speaker 1: and San Francisco, saying the total of arrests since January
Speaker 1: twenty third is three thousand, five hundred and fifty two.
Speaker 1: In the meantime, some novel lawsuits have been filed over
Speaker 1: the Trump immigration enforcement actions. Chicago. Organizations that advocate for
Speaker 1: the national Sanctuary City movement have sued the federal government
Speaker 1: over its decision to conduct mass deportation rates in the city,
Speaker 1: saying that the policy violates their First Amendment rights, and
Speaker 1: a group of Quaker congregations from four states has sued
Speaker 1: the federal government over a recent policy reversal that allows
Speaker 1: immigration agents to conduct searches and arrests in so called
Speaker 1: sensitive areas like churches and schools. They say the policy
Speaker 1: violates their First Amendment rights. Joining me is immigration law
Speaker 1: expert Leon Fresco, a partner at Holland and Knight. Chicago
Speaker 1: organizations are suing the federal government over its decision to
Speaker 1: conduct mass deportation raids in the city. I mean, explain
Speaker 1: what the violation they claim is.
Speaker 4: This is quite a creative lawsuit. I am dubious on
Speaker 4: its chances of success, but basically they are approaching it
Speaker 4: from this premise. They are saying that these Chicago organizations
Speaker 4: have a right to advocate for Chicago to be a
Speaker 4: sanctuary city, and that the Seventh Circuit, which is the
Speaker 4: Court of Appeals that governs the Chicago area, so that's
Speaker 4: the court right below the Supreme Court, has ruled that
Speaker 4: there's nothing that Chicago does that violates anything related to
Speaker 4: immigration law. And so because these groups have a First
Speaker 4: Amendment right to advocate that Chicago maintain its sanctuary policies
Speaker 4: that don't violate immigration law. Because of statements that the
Speaker 4: Trump administration and Trump administration officials have made against Chicago
Speaker 4: saying that because they are so boisterous in their sanctuary
Speaker 4: city policies, they will be retaliated against with immigration enforcement.
Speaker 4: That this is not legitimate immigration enforcement. This is instead
Speaker 4: an attempt to thwart free speech, which could lead to
Speaker 4: the apprehension of perhaps US citizens engaging in free speech
Speaker 4: or helping immigrants, et cetera. And so their requested relief
Speaker 4: is no more raids in Chicago. And so that's where
Speaker 4: I think the case goes a little bit off the rails.
Speaker 4: Is that seems quite broad to fix this potential violation
Speaker 4: their claiming might occur.
Speaker 3: So this is novel.
Speaker 1: Have you ever heard this kind of an argument being
Speaker 1: made before.
Speaker 4: I have seen a similar argument to this with regard
Speaker 4: to people in immigration detention, where they say I've been
Speaker 4: retaliated against because I went on a hunger strike or
Speaker 4: I protested the conditions of my immigration detention, and hence
Speaker 4: my recourse for this should be that I don't get
Speaker 4: deported because I need to be able to pursue this
Speaker 4: claim that my First Amendment rights have been violated. And
Speaker 4: the courts have been very dubious and skeptical of these
Speaker 4: on an individual basis, So to think that they'll do
Speaker 4: it on a city wide basis and just ban, you know,
Speaker 4: these types of enforcement actions in Chicago on this basis
Speaker 4: seems very unlikely. And it's also extremely unlikely because the
Speaker 4: case has been assigned to a judge that was appointed
Speaker 4: vice President Trump. So if they thought that they were
Speaker 4: going to have a good chance, maybe because a different
Speaker 4: type of judge might be appointed. They didn't get the
Speaker 4: best of luck there, and so from that standpoint, I
Speaker 4: think a generally unlawful theory. You know, they lead to
Speaker 4: even more lack of success given where it's been assigned.
Speaker 3: I mean, I don't.
Speaker 1: See how a city can stop lawful deportation raids by
Speaker 1: the federal government.
Speaker 3: I mean, the federal government has the right to make these.
Speaker 4: Raids, right, oh, correct. And this isn't even a city.
Speaker 4: This is organizations within a city saying that they want
Speaker 4: to continue having their free speech and that these raids
Speaker 4: harm their free speech because they're being done in retaliation
Speaker 4: for their free speech. I mean, look, it's worth a shot.
Speaker 4: It's a creative argument. It's interesting, but I don't think
Speaker 4: it's likely to be successful at the end of the day.
Speaker 1: So the Trump administration is targeting, you know, Chicago, also
Speaker 1: targeting New York, and there were raids, and the Secretary
Speaker 1: of Homeland Security went on these raates and she posted
Speaker 1: about the raid.
Speaker 4: Well, I think, look, they are trying to very much
Speaker 4: trigger to the public that immigration enforcement is a thing.
Speaker 4: It's happening. If you are here and legally, you need
Speaker 4: to be afraid of it, and so they're trying to
Speaker 4: get as much bang for the buck as they can,
Speaker 4: knowing that at the end of the day they are
Speaker 4: running up against very soon a significant push up against
Speaker 4: what's the current detention capacity, and so very soon, either
Speaker 4: they're going to have to release the very people they've
Speaker 4: just been arresting and create the sort of hamster wheel
Speaker 4: where they arrest people, they put it on TV, but
Speaker 4: then a couple of weeks later they get released because
Speaker 4: there's no facilities for them, or they're going to have
Speaker 4: to get congressional funding quite quickly to start ramping up
Speaker 4: the detention and removal capacity. But it's not going to
Speaker 4: be sustainable to do a thousand arrests a day, and
Speaker 4: then all of a sudden think that that's going to
Speaker 4: lead to an indefinite ability to do that without more
Speaker 4: detention space, without more imtegration courts, et cetera.
Speaker 1: I'm curious because apparently the New York Police Department told
Speaker 1: officers that it's rules block them because New York is
Speaker 1: a sanctuary city, it's rules block them from participating in
Speaker 1: immigration enforcement actions conducted by ICE.
Speaker 3: But the Mayor Eric Adams.
Speaker 1: Seemed to imply that this was being done in coordination
Speaker 1: with the NYPD.
Speaker 4: Well, I think that what happens is immigration enforcement is
Speaker 4: in the eye of the beholder. And so if the
Speaker 4: NYPD is simply there to protect the ICE agents, so
Speaker 4: to speak, and is not actually interacting in any way
Speaker 4: with the actual people being apprehended, who are the foreign nationals,
Speaker 4: then they can try to have it both ways and
Speaker 4: say they're not in any way, shape or form engaging
Speaker 4: in immigration enforcement. They're there to protect the ICE agents,
Speaker 4: and I think that's what you're seeing there.
Speaker 1: And another novel lawsuit about the raids, a collection of
Speaker 1: Quaker group is suing the Trump administration over its policy
Speaker 1: that allows federal agents to arrest undocumented immigrants in houses
Speaker 1: of worship.
Speaker 4: Yes, this is an outgrowth of the policy that was
Speaker 4: called the Sensitive Locations policy, where the Sensitive Locations Policy
Speaker 4: was actually rescinded and says now that instead of not
Speaker 4: being able to go into places like schools and churches
Speaker 4: to create immigration actions, that there now can be ICE
Speaker 4: going into these churches and schools, et cetera. Now here's
Speaker 4: the interesting thing about that. I don't think ICE has
Speaker 4: any intention of doing large scale raids in schools or
Speaker 4: churches or anywhere else like that in any of those
Speaker 4: sense of locations. But what they are trying to discourage,
Speaker 4: because this has happened a lot. I mean, this happened
Speaker 4: a few times during the Bush administration in two thousand
Speaker 4: and seven, is that people would run into a church
Speaker 4: they saw ice was coming. You know, they'd get some
Speaker 4: notice and they'd see ice coming and they'd run out
Speaker 4: of the back of their house and into a church.
Speaker 4: And that these standoffs would happened in these churches where
Speaker 4: the church would provide sanctuary for the person for months,
Speaker 4: and you'd see articles about this and you'd say, what
Speaker 4: is going on here? And so they're trying to avoid
Speaker 4: them by saying, look, that's not going to happen. We'll
Speaker 4: go in and we will grab that person if they
Speaker 4: expect to run into the church to do that. But
Speaker 4: of course, now you're going to have this lawsuit and
Speaker 4: we'll see how successful it is. I don't think it's
Speaker 4: likely to be successful. But the concept will be that
Speaker 4: they will say that this was a change that is,
Speaker 4: you know, needed to be done by notice and comment
Speaker 4: visa the Administrative Procedure Act, and you can't just make
Speaker 4: such an arbitrary and capricious change. And it's also violating
Speaker 4: the First Amendment freedom of religion because people now won't
Speaker 4: be allowed to worship in the way they want to
Speaker 4: because they're afraid that ice is going to come and
Speaker 4: get them. And so we'll see. I mean, I will
Speaker 4: say this, the Supreme Court has been much more tolerant
Speaker 4: or favorable toward religious based arguments than non religious based arguments.
Speaker 4: So to the extent that one is making a religious
Speaker 4: based argument that your freedom of religion is being impinged
Speaker 4: upon being able to go to church because now you're
Speaker 4: afraid that church is going to be a place where
Speaker 4: you're going to get snagged. I mean, it's interesting. I
Speaker 4: think the question is where does that get narrowly tailored?
Speaker 4: And also, the courts don't like these sort of facial
Speaker 4: challenges without facts. I think what they would say is, look,
Speaker 4: if you come to us with a specific set of
Speaker 4: violations as applied, we may say, yes, as applied, these
Speaker 4: are violating the First Amendment and your free exercise of religion.
Speaker 4: But just telling us that immigration raids in general can
Speaker 4: happen in churches doesn't seem like this kind of facial
Speaker 4: challenge that the Supreme Court likes. So you have their
Speaker 4: aversion to facial challenges, plus you have their favorability toward
Speaker 4: religious challenges. Plus you have the fact that a lot
Speaker 4: of people do like immigration enforcement in the Supreme Court,
Speaker 4: all clashing together. But my imagination would be that the
Speaker 4: immigration enforcement will prevail there until specific examples are given.
Speaker 1: It makes more sense to me than the sanctuary Cities case.
Speaker 1: At least it's got your first amendment in religion, whereas
Speaker 1: the sanctuary Cities case, the argument seems really attenuated.
Speaker 4: It's a little bit more of a challenge to win
Speaker 4: that case.
Speaker 3: But as you.
Speaker 1: Said, both are challenging. Thanks so much, Leon. That's Leon Fresco,
Speaker 1: a partnered hollanden Knight. And In other legal news today,
Speaker 1: a federal judge in Washington has temporarily blocked the Trump
Speaker 1: administration from enforcing a new directive to hal payments of
Speaker 1: federal grants, loans, and other assistants to an array of
Speaker 1: programs across the country. The order was in response to
Speaker 1: a lawsuit filed by a coalition of nonprofit organizations challenging
Speaker 1: the payment freeze. The suit claims that even a temporary
Speaker 1: halt in funding could immediately deprive people and communities of
Speaker 1: their life saving services, including healthcare, small business support, and
Speaker 1: programs for the LGBTQ community. The judge will hold another
Speaker 1: hearing on February third to consider whether to order a
Speaker 1: longer term freeze. And that's it for this edition of
Speaker 1: The Bloomberg Law Show. Remember you can always get the
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