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

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Speaker 2: This bill mandates the display of the Ten Commandments in

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Speaker 2: every classroom in public, elementary, secondary, in post education schools

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Speaker 2: in a state Louisiana.

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Speaker 3: Louisiana is the first state to require that the Ten

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Speaker 3: Commandments be displayed in public school classrooms since nineteen eighty,

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Speaker 3: when the Supreme Court struck down a similar Kentucky law

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Speaker 3: on First Amendment grounds. Governor Jeff Landry signed the bill,

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Speaker 3: which requires a poster sized, state approved version of the

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Speaker 3: Ten Commandments to be posted in public classrooms from kindergartens

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Speaker 3: up to universities by January first.

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Speaker 2: Because if you want to respect the rule of law,

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Speaker 2: you got to start from the original law giver, which

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Speaker 2: was Moses.

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Speaker 3: But a federal judge has stepped in to stop that

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Speaker 3: from happening, finding that the law is unconstitutional on its face.

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Speaker 3: With state officials vowing to appeal the ruling, the legal

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Speaker 3: showdown won't end tier and may even end up at

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Speaker 3: the Supreme Court. Joining me is an expert in the

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Speaker 3: First Amendment. Caroline mal KORbin, a professor at the University

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Speaker 3: of Miami Law School, tell us about the judges ruling

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Speaker 3: almost two hundred pages.

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Speaker 4: It was indeed very long. It was one hundred and

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Speaker 4: seventy seven pages. So Louisiana had passed a law mandating

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Speaker 4: the posting of a particular version of the Ten Commandments

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Speaker 4: in every single classroom in the public schools of Louisiana,

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Speaker 4: both case through twelve and the university level. And this

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Speaker 4: was challenged, not surprisingly on Establishment laws ground, and the

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Speaker 4: District Court gave sort of two paths of why this

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Speaker 4: was in fact in violation the establishment clause, and his

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Speaker 4: first line of discussion was that there is very clear

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Speaker 4: precedent on this matter. Kentucky had tried the same thing

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Speaker 4: back in nineteen eighty. It too had passed the law

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Speaker 4: requiring the posting of the Ten Commandments in every single classroom,

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Speaker 4: and the court said, no, you can't do that. There

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Speaker 4: is no real secular reason for this. You can't impose

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Speaker 4: a religion on the walls like that. It is unconstitutional.

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Speaker 4: And so there is Supreme Court precedent directly on point.

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Speaker 4: And so the District Court said, under this decision, which

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Speaker 4: is still good law because the Supreme Court has not

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Speaker 4: yet explicitly overruled it, this law cannot survive. And so

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Speaker 4: that was one approach, which is very straightforward. And then

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Speaker 4: it had another line of argument because there is concerned

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Speaker 4: that the Supreme Court is going to overrule that decision,

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Speaker 4: and in fact, that's partly what Louisiana is hoping. And

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Speaker 4: so given this new Christian friendly Supreme Court, it may

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Speaker 4: well decide that that precedent is no longer good, in

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Speaker 4: part because it relied on some doctrine that the Supreme

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Speaker 4: Court had rejected, so anticipating that that argument, which should

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Speaker 4: be enough, might not be enough, it also analyzed the

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Speaker 4: case under the Supreme court more recent rulings and the

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Speaker 4: Supreme Court's more recent rulings have said, when you're trying

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Speaker 4: to decide whether something violates the establishment clause or not,

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Speaker 4: you must refer to the history and tradition of the

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Speaker 4: practice in question. And so that's what the distcurt did,

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Speaker 4: and in fact, there was even an expert who testified.

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Speaker 4: And then the question was is there a history and

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Speaker 4: tradition of posting the Ten Commandments on the walls of

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Speaker 4: public schools? And the answer was no, there's no.

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Speaker 3: Will you describe the current test the Supreme Court uses

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Speaker 3: in establishment clause cases.

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Speaker 4: Yeah, There used to be several different tests the court

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Speaker 4: might rely on in evaluating establishment clause challenges, and they

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Speaker 4: have different names. There was the Lemon tests, the endorsement test,

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Speaker 4: the history and tradition test, the coercion test. In that decision,

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Speaker 4: the Supreme Court essentially killed off two of them, and

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Speaker 4: it said, we are no longer going to rely on

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Speaker 4: the Lemon tests, We're no longer going to rely on

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Speaker 4: the endorsement test. So what the court is going to

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Speaker 4: consider going forward when faced with an establishment clause challenge

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Speaker 4: is a history and tradition analysis, and also it will

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Speaker 4: consider whether anyone is being compelled into practicing religion against

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Speaker 4: their will. And so those the two frame work the

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Speaker 4: court will use going forward. And the District Court in

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Speaker 4: fact used them again in anticipation of its reliance on

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Speaker 4: precedent not being enough for the current court and conducted

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Speaker 4: a history and tradition analysis and also found them to

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Speaker 4: be rather coercive.

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Speaker 3: Louisiana is going to appeal, and they're in the Fifth Circuit,

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Speaker 3: which indeed the most conservative circuit in the country, has

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Speaker 3: handed down some novel rulings lately, some of them even

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Speaker 3: too much for the Supreme Court do you have any

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Speaker 3: confidence in how the Fifth Circuit will rule.

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Speaker 4: I do not have any confidence in how they were ruled.

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Speaker 4: But it would not surprise me if they pick up

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Speaker 4: the baton that the Louisiana Statute laid down and argue

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Speaker 4: that there is in fact a history and tradition of

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Speaker 4: the Ten Commandments in schools, and therefore there is nothing

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Speaker 4: wrong with having posters, and would not surprise me if

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Speaker 4: they said it was not at all coercive, because no

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Speaker 4: one's being forced to pray or do any particular religious exercise.

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Speaker 4: So I would not be surprised if again they constructed

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Speaker 4: a history in accurate history, by the way, because the

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Speaker 4: expert did quite a good job of dismantling some of

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Speaker 4: the claims that Louisiana made in its text, including a

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Speaker 4: completely fabricated quotation from James Madison. But nonetheless they will

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Speaker 4: claim that there is parenty of evidence of having the

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Speaker 4: Ten Commandments of schools, and even if there's no evidence

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Speaker 4: of Ten Commandment posters and schools, it doesn't matter. It's

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Speaker 4: enough that there were mention of the Ten Commandment or

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Speaker 4: reading of the Ten Commandment, and therefore there's no violation

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Speaker 4: of the Establishment Clause and they were a claimed that

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Speaker 4: simply looking at the Ten Commandments is not going to

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Speaker 4: force children into doing anything religious, and therefore there is

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Speaker 4: no stay aublishment clause violation.

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Speaker 3: The Supreme Court that ruled on the Kentucky case in

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Speaker 3: nineteen eighty was a very different court from the Roberts

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Speaker 3: Court of today, with its conservative super majority. I can't

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Speaker 3: remember the last time religion lost at this court. Do

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Speaker 3: you think that if this gets to the Supreme Court

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Speaker 3: that the Kentucky case will stand?

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Speaker 4: I don't know, because the Supreme Court has traditionally been

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Speaker 4: especially mindful of the establishment clause in the school context

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Speaker 4: for a couple of reasons. The first is that, you know,

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Speaker 4: the children in school are considered very young and very impressionable,

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Speaker 4: and therefore the government has heightened responsibilities towards them. And

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Speaker 4: second is that the students at school are a captive audience.

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Speaker 4: They have no choice but to be there. They're sort

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Speaker 4: of doubly captives. The government requires that they attend school

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Speaker 4: at an as school under the control of the school,

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Speaker 4: and therefore, again there are heightened responsibilities when you're dealing

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Speaker 4: with the young, impressional students who are also a captive audience.

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Speaker 4: Will the Supreme Court continue to honor these considerations. I

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Speaker 4: don't know, Possibly not, Caroline.

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Speaker 3: Other states have tried to pass laws similar to Louisiana's,

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Speaker 3: and in Oklahoma, the states Superintendent of Schools ordered that

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Speaker 3: the Bible be incorporated into lessons, while Florida recently approved

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Speaker 3: having volunteer religious chaplains serving as school counselors. Is a

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Speaker 3: conservative Christian movement trying to move the line and incorporate

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Speaker 3: religion into public school classrooms.

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Speaker 4: Oh, I don't think there's any questions. I think that

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Speaker 4: the Supreme Court has made it clear that it is

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Speaker 4: very sympathetic towards lanes of religious exercise. It has also

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Speaker 4: made it clear that it does not hold the establishment

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Speaker 4: clause in high esteem. And so I think this is

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Speaker 4: the vanguard of trying to get religion back into the schools,

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Speaker 4: and depending on the outcome of this case, we'll see

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Speaker 4: what happens in the rest of the country.

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Speaker 3: This brings up another question in these cases of trying

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Speaker 3: to incorporate religion into public schools, what religion is being incorporated.

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Speaker 4: One of the really interesting things about this challenge is

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Speaker 4: it not just the introduction of religion into school but

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Speaker 4: it's the introduction of only one faith tradition into the

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Speaker 4: school because the Ten Commandments on the wall are the

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Speaker 4: Protestant King Jin's version of the Ten Commandments. Different faith

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Speaker 4: traditions have different types of Ten Commandments. So, for example,

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Speaker 4: the Catholic version is different because this one says thou

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Speaker 4: shalt make to thyself no graven images, whereas that particular

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Speaker 4: prohibition is not in the Catholic version of the Ten Commandments,

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Speaker 4: whereas in the Jewish version of the Ten Commandments. The

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Speaker 4: first commandment here is I am the Lord thy God,

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Speaker 4: and the Jewish Ten Commandments it is I Am the

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Speaker 4: Lord thy God that brought you forth from Egypt. And

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Speaker 4: these are actually crucial theological differences. And I mention this

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Speaker 4: because under existing doctrine, as the district Court highlighted, the

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Speaker 4: court made it clear that the state cannot discriminate against

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Speaker 4: any other religion, it can't favor one religion over others,

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Speaker 4: it can't intentionally discriminate against other religions. And the choice

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Speaker 4: of this particular version seems to be doing exactly that.

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Speaker 4: And it's particularly problematic because if you look at our

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Speaker 4: history and tradition, at one point to the extent there

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Speaker 4: was any religion in the schools, it was Protestant religion,

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Speaker 4: and it was explicitly meant to exclude Catholics. And the

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Speaker 4: Court has long expressed concern about anti Catholic sentiments in

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Speaker 4: our country's history, and this could be seen as the

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Speaker 4: remnant of that historical hostility the Catholics that they so

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Speaker 4: often complain about and revile. So it might be a

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Speaker 4: little more complicated for them than it would otherwise be

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Speaker 4: with another particular religious practice in the schools. But the

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Speaker 4: fact that this is a Protestant ten Commandments before a

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Speaker 4: court long characterized much of the history in the United

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Speaker 4: States as anti Catholic, maybe you would give them pause.

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Speaker 3: Well, the next stop is the Fifth Circuit. We'll see

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Speaker 3: what happens there first. Thanks so much, Caroline. That's Professor

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Speaker 3: Caroline Malikorbin of the University of Miami Law School. I'm

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Speaker 3: June Grosso and you're listening to Bloomberg. It's one of

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Speaker 3: two Supreme Court cases within a week over securities fraud

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Speaker 3: class actions against giant tech companies. Last Wednesday it was

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Speaker 3: Meta's Facebook. This Wednesday it was in Vidia. Investors are

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Speaker 3: suing in Vidia for misleading them about how much its

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Speaker 3: profits depended on the volatile crypto money market. But the

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Speaker 3: tech company says the lawsuit isn't supported by evidence like

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Speaker 3: company documents to back up its claims. Justice Kataji Brown

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Speaker 3: Jackson questioned how the investors could even get that kind

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Speaker 3: of evidence at this initial stage of the litigation.

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Speaker 5: I guess my concern is that you appear to be

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Speaker 5: requiring for plaintiffs to actually have the evidence in order

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Speaker 5: to plead their case. And I didn't understand the pleading standards,

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Speaker 5: even with particularity, to require that they have the documents.

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Speaker 5: Nor do I understand how they could have the documents

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Speaker 5: when discovery hasn't occurred yet.

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Speaker 3: And several of the justices seem to have buyer's remorse

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Speaker 3: about granting review in the case, saying it was two

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Speaker 3: facts specific and didn't present the kind of broad legal

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Speaker 3: issues that normally prompt Supreme Court review. Here are Justices

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Speaker 3: Sonya so To, Mayor Elena Kagan, and Samuel Alito.

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Speaker 6: We often don't grant sir to error correct? Is this

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Speaker 6: entire case just an error? Correction? Oh, these particular documents

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Speaker 6: are not precise enough. It becomes less and less us

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Speaker 6: clear why we took this case number one as just

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Speaker 6: as sodam your suggested, and number two why you should

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Speaker 6: win it.

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Speaker 7: This is a highly technical subject and I just don't

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Speaker 7: understand how a court is supposed to evaluate that at

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Speaker 7: the pleading stage.

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Speaker 3: Joining me is Gregory gar a partner at Latham and Watkins,

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Speaker 3: and the former Solicitor General of the United States, Greg

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Speaker 3: tell Us about the issue before the court.

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Speaker 8: So, this case involves the pleading requirements under the Private

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Speaker 8: Securities Litigation Reform Act, and specifically what a planiff has

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Speaker 8: to show to plead with the requisite particularity when the

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Speaker 8: claim is that a company misled investors based on internal

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Speaker 8: information that it knew, and the question is, does a

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Speaker 8: planiff in that situation have to actually produce or describe

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Speaker 8: in detail the internal company documents that the planiff says

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Speaker 8: represents the company's knowledge, or can you prove that knowledge

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Speaker 8: through inferences by relying on expert reports and the like?

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Speaker 3: And so Justice Katanji Brown Jackson said that in video

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Speaker 3: was basically asking the plaintiffs to have the evidence at

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Speaker 3: the pleating stage before they get discovery.

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Speaker 8: Right, And that's the pushback that the more liberal justices

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Speaker 8: had for the company's lawyer. The reason for these lawsuits

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Speaker 8: is you typically get into federal court by passing the

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Speaker 8: pleating requirements, and then you get discovery and potentially access

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Speaker 8: to the company's documents. So Justice Jackson sort of said

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Speaker 8: that the company was trying to put the planets in

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Speaker 8: an impossible bind to produce the documents before discovery had ensued.

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Speaker 8: And the company's response to that was that they weren't

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Speaker 8: actually requiring the documents themselves, or that they described the

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Speaker 8: documents in every detail, but they simply had to describe

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Speaker 8: the documents with some particularity. That was really the crux

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Speaker 8: of the case that the company put before the court.

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Speaker 3: What did you see as the concerns of some of

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Speaker 3: the other justices.

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Speaker 8: Well, I think that there was a frustration on the

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Speaker 8: court that they really weren't presented with a clear legal

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Speaker 8: rule on either side of the case, and that ultimately

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Speaker 8: the case seemed to boil down to the application of

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Speaker 8: existing law to a really long complaint, which is something

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Speaker 8: that district courts do all the time, but the Supreme

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Speaker 8: Court justices don't do, and particularly don't like to do.

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Speaker 8: And so you could see throughout the argument that there

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Speaker 8: was a frustration on the part of the justices that

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Speaker 8: they were being asked to undertake a task that they

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Speaker 8: typically don't do in engaging in a sort of error

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Speaker 8: correction based on their own reading of the complaint.

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Speaker 3: Yeah, it seems like justices across the ideological spectrum were

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Speaker 3: concerned about that and showed a little bit of perhaps

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Speaker 3: buyer's remorse. Do you think they were questioning whether they

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Speaker 3: should have granted cert in this case?

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Speaker 8: I think they were. And of course, the Supreme Court

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Speaker 8: gets to decide which cases it hears every year, and

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Speaker 8: so it can pick the cases it likes. And here

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Speaker 8: I think you're right that there were some buyers remorse

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Speaker 8: that the case, once it was fully briefed and presented

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Speaker 8: to the court at argument, wasn't necessarily the case that

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Speaker 8: they thought they were buying when they agreed to hear it.

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Speaker 8: And so one possible outcome is that the court would

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Speaker 8: simply decline to decide the case at all and to

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Speaker 8: dig it, which means that they would dismiss the writ

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Speaker 8: of Cercherai. The rit agreed to hear the case as

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Speaker 8: improvidently granted, so the case could simply go away.

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Speaker 3: The shareholders claim that in twenty seventeen and twenty eighteen,

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Speaker 3: the CEO hid the fact that record revenue growth was

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Speaker 3: being driven by mining related sales of the company's graphic

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Speaker 3: processing units rather than buy sales for gaming. And it

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Speaker 3: was just as Neil Gorzich who really got into that.

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Speaker 8: So he pressed the lawyers on both sides really about

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Speaker 8: what inferences could be drawn about what the CEO knew,

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Speaker 8: and of question whether or not it was plausible that

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Speaker 8: a CEO wouldn't know about potential downtick in sales and

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Speaker 8: the magnitude alleged here billions of dollars, And so he

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Speaker 8: had tough questions and he clearly was, you know, I think,

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Speaker 8: prepared to get into the weeds of this case to

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Speaker 8: resolve it, just.

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Speaker 3: As Kavanaugh expressed a concern that outside groups and in

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Speaker 3: Vidia's lawyer had raised that the Ninth Circuit decision being

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Speaker 3: appealed here created a sort of blueprint or roadmap for

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Speaker 3: plaintiffs to use to get around the heightened pleading requirements

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Speaker 3: in the private securities that EGAY should reform.

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Speaker 8: Act right and just Kavanaugh was probably the most outspoken

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Speaker 8: justice on the side of the company at the World Argument,

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Speaker 8: and his concern was that if the Ninth Circuit decision

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Speaker 8: in this case is allowed, then it just creates a

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Speaker 8: blueprint or recipe for points to file where anytime you

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Speaker 8: have a stop drop, you can just go out and

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Speaker 8: find an expert that would put together numbers that would

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Speaker 8: contradict a company's public statements and then ledge in a

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Speaker 8: lawsuit that the company keeps records that its executives look

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Speaker 8: at and argued that those records would have matched their

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Speaker 8: own experts numbers, And so there you have it. Presto

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Speaker 8: a securities action that would proceed past the motion to

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Speaker 8: dismiss stage. And in these sorts of cases, particularly with

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Speaker 8: class actions, that's really the ballgame.

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Speaker 3: Because the pressure on the company is then to settle.

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Speaker 8: There's enormous pressure on the companies to settle in that

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Speaker 8: context given the potential damages. Although here Justice Kavanaugh actually

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Speaker 8: pressed the planoff's lawyer on what the magnitude of the

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Speaker 8: damages would be, and the planiff's lawyer was a little

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Speaker 8: bit coy and ultimately said he did not know the

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Speaker 8: answer to that question, you know, perhaps because the amount

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Speaker 8: was potentially quite large.

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Speaker 3: Yeah, that was a really interesting exchange as Justice Kavanaugh

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Speaker 3: kept pressing the attorney for the plane Tives Deepak Gupta.

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Speaker 3: Here's a part of that exchange.

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Speaker 8: How much money is at stake in this case? The

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Speaker 8: words the few are to prevail ultimately in the.

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Speaker 9: Class, not as much as it might seem, because I

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Speaker 9: don't want the court to get the impression that this

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Speaker 9: enormous delta of sales is what's at issue. It would

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Speaker 9: be an issue would be you would have to show

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Speaker 9: lost causation and materiality. What are you seeking, like if

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Speaker 9: you ran the table, what are you seeking? Roughly, I

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Speaker 9: don't know what the numbers are. You're on her.

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Speaker 3: Several of the justices seem to be saying too. In

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Speaker 3: Nvidia's lawyer, well you want a bright line test, and

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Speaker 3: we can't give you a bright line test. And the

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Speaker 3: Chief Justice didn't seem to be happy with either side's position.

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Speaker 8: He wasn't, as he put it, I think, you know,

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Speaker 8: both sides want to present this in black and white terms,

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Speaker 8: but there really wasn't a clear rule on either side

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Speaker 8: that the court was likely to adopt, and so they

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Speaker 8: were left in this middle ground that again probably would

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Speaker 8: it is a very narrow ruling that would require the

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Speaker 8: justices to roll up their sleeves and apply the pleading

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Speaker 8: standard to the particular allegations here in this extensive complaint,

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Speaker 8: which is something that the Supreme Court Justices probably don't

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Speaker 8: want to spend their time doing.

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Speaker 3: In twenty twenty two, in Vidia agreed to pay five

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Speaker 3: and a half million dollars to settle related allegations by

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Speaker 3: the Securities and Exchange Commission that it didn't properly disclose

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Speaker 3: the impact of cryptomining on its gaming business as usual

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Speaker 3: without admitting or denying the findings. Does that have any

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Speaker 3: impact here?

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Speaker 6: Not?

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Speaker 9: Really.

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Speaker 8: It came up in oral argument the government was participating

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Speaker 8: in the case, and the Biden administration came in on

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Speaker 8: the side of the plaintiffs here and argued that the

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Speaker 8: Ninth Circuit had gotten it right. And the Justices did

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Speaker 8: ask about that sec action. But this case is really

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Speaker 8: going to rise or fall on its own allegations under

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Speaker 8: the demands of the PSLRA.

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Speaker 3: Just last week, the Justices were considering whether to shut

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Speaker 3: down another class action investors lawsuit against Facebook stemming from

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Speaker 3: the privacy scandal, involving the Cambridge Analytical Political consulting firm.

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Speaker 3: Is there a reason why they took two similar cases

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Speaker 3: this term, is this a real problem?

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Speaker 8: I think it's probably fortuitous that the two cases happened

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Speaker 8: to come to the Court at the same time. That said,

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Speaker 8: both cases came out of the Ninth Circuit, and the

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Speaker 8: Ninth Circuit has been sort of a hotbed for this

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Speaker 8: kind of litigation, and so it's not surprising in that

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Speaker 8: sense that some of these cases has gotten to the

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Speaker 8: Supreme Court. But having taken two of these cases and

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Speaker 8: heard them in the same week, and I think it's

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Speaker 8: sort to say that in most cases the justices were

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Speaker 8: grappling for answers. It may be a while before the

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Speaker 8: Justices decide to wade back into this area.

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Speaker 3: So what's your take. Do you think that there needs

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Speaker 3: to be more specificity and pleading in the kinds of cases?

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Speaker 8: I think, you know, Congress was wise to pass the

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Speaker 8: Private Securities Litigation Reform Act, and those pleading standards you know,

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Speaker 8: have and should have teeth. I think in this area

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Speaker 8: usually the pleting standard at the motion to the Smiths

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Speaker 8: stage is you know, the critical test in the litigation,

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Speaker 8: because once you get past that pleting stage, then you

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Speaker 8: get discovery. The cost of litigation rise greatly and you

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Speaker 8: have a threat of enormous damages that often push defendants

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Speaker 8: into settlement even when they strongly believe that there was

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Speaker 8: no securities fraud in the first place. So I think

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Speaker 8: courts you have to police these requirements carefully. So in

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Speaker 8: that sense, it's not surprising that the Supreme Court with

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Speaker 8: intervene where it fears that a court has either veered

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Speaker 8: from the law or where courts have taken conflicting positions

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Speaker 8: on what these standards require.

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Speaker 3: Always great to get your insights, Greg, Thanks so much.

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Speaker 3: That's Gregorgar of Latham and Watkins, the former US Solicitor General.

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Speaker 3: I'm June Grosso on your list, listening to Bloomberg.

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Speaker 2: One day one of my new administration, we will begin

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Speaker 2: the largest deportation operation in American history.

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Speaker 8: We have no choice.

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Speaker 3: The centerpiece of Donald Trump's re election campaign was avowed

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Speaker 3: to carry out the largest mass deportations of illegal immigrants

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Speaker 3: in the country's history, and the President elect has already

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Speaker 3: decided on the person to carry out his plan as

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Speaker 3: borders are former ICE Director Tom Homan.

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Speaker 1: We're going to take the handcuffs off Ice that the

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Speaker 1: Biden administration put on him.

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Speaker 3: Trump has even decided on the two hundred and twenty

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Speaker 3: five year old law he'll use.

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Speaker 2: I will invoke the Alien Enemies Act of seventeen ninety eight.

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Speaker 3: But there are about eleven million undocumented immigrants in the country,

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Speaker 3: and there are laws protecting them, logistical problems sending them home,

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Speaker 3: and although Trump says there's no price tag, the cost

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Speaker 3: of deporting them is estimated at three hundred and fifty

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Speaker 3: billion dollars. Joining me is an expert in immigration law,

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Speaker 3: Leon Fresco, a partner at Holland and Knight and the

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Speaker 3: former head of the Office of Immigration Litigation at the

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Speaker 3: Department of Justice. Join the Obama administration. Leon tell us

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Speaker 3: what it would take to carry out these nasty portations

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Speaker 3: and some of the obstacles.

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Speaker 1: It's going to be a multi stage process, and it's

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Speaker 1: going to require an all hands on that governmental approach,

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Speaker 1: because this is not just a matter of the Department

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Speaker 1: of Homeland Security or ICE or the border. It's going

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Speaker 1: to require the State Department. It's going to require the

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Speaker 1: entire diplomatic corps negotiating with all of the countries in

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Speaker 1: South America, in the Middle East, and in China that

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Speaker 1: we're trying to actually deport people too. And so this

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Speaker 1: is not going to be a very simple first step.

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Speaker 1: You've heard Tom Holman say in various contexts that this

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Speaker 1: isn't going to just be a grab bag where individuals

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Speaker 1: are simply apprehended for no reason, but that there's going

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Speaker 1: to be a targeted effort here. So the first targeted

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Speaker 1: effort would obviously be criminal non citizens. So anybody with

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Speaker 1: a criminal record is going to be the number one

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Speaker 1: top priority for removal. So the question is, well, when

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Speaker 1: you apprehend those individuals, where do you put them? There's

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Speaker 1: about forty to forty five thousand beds that are available

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Speaker 1: right now. Obviously, if you're doing the largest deportation program

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Speaker 1: in history, you're going to need a lot more beds.

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Speaker 1: Where are those beds coming from. We've heard the idea

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Speaker 1: that that could be a military basis, that there would

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Speaker 1: be barrack for that purpose. So fine, you place people

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Speaker 1: in those military barracks, you have them in detention, you

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Speaker 1: put them in detention proceeding, And the question is will

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Speaker 1: there be a place to actually deport those people to

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Speaker 1: when this is all said and done, will there be

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Speaker 1: countries that are willing to actually accept these individuals. So

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Speaker 1: that's where again the State Department is going to have

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Speaker 1: to play in What kind of.

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Speaker 3: Due process would the immigrants be entitled to before being deported?

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Speaker 1: The question is, are you going to need to do

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Speaker 1: a whole due process deportation hearing where these hearings are

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Speaker 1: currently backed up by seven years in the immigration court,

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Speaker 1: or will Trump be able to get away with using

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Speaker 1: what's called the Alien Enemies Act, which is a law

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Speaker 1: that's been around since the late seventeen hundred, which allows

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Speaker 1: deportation without due process. But you have to show that

441
00:27:29,080 --> 00:27:34,640
Speaker 1: a country is specifically trying to infiltrate the United States

442
00:27:34,640 --> 00:27:38,560
Speaker 1: with people designed to destabilize the United States. So will

443
00:27:38,840 --> 00:27:41,920
Speaker 1: that be reviewable in a court of law? Because courts

444
00:27:41,960 --> 00:27:44,280
Speaker 1: have said that things like that in the past are

445
00:27:44,280 --> 00:27:47,919
Speaker 1: political questions that are not reviewable. Will they be reviewable?

446
00:27:48,000 --> 00:27:51,200
Speaker 1: And if they are reviewable, will courts say that any

447
00:27:51,320 --> 00:27:54,560
Speaker 1: country people are from is actually doing this on purpose,

448
00:27:54,680 --> 00:27:58,920
Speaker 1: is actually sending criminal foreign nationals into the United States

449
00:27:58,920 --> 00:28:01,720
Speaker 1: for the purpose of the states the country. So all

450
00:28:01,760 --> 00:28:03,879
Speaker 1: of those are questions that are going to have to

451
00:28:03,920 --> 00:28:08,040
Speaker 1: be grappled with pretty early on in order to determine

452
00:28:08,040 --> 00:28:11,160
Speaker 1: whether such an operation could be successful.

453
00:28:11,720 --> 00:28:13,960
Speaker 3: Will it be difficult for ice to even find the

454
00:28:14,000 --> 00:28:15,800
Speaker 3: people it wants to deport.

455
00:28:16,040 --> 00:28:18,520
Speaker 1: Well, believe it or not, that's actually the easy part.

456
00:28:18,600 --> 00:28:21,919
Speaker 1: These days. With all of the artificial intelligence that is

457
00:28:22,080 --> 00:28:26,880
Speaker 1: has procured in the last several years and databases and documents,

458
00:28:27,000 --> 00:28:30,560
Speaker 1: pretty much anyone who's left any kind of digital footprint,

459
00:28:30,880 --> 00:28:33,399
Speaker 1: ICE knows where they are, either from their cells, phone,

460
00:28:33,480 --> 00:28:37,679
Speaker 1: their car, whether they ordered a pizza, anything of this nature.

461
00:28:37,880 --> 00:28:40,080
Speaker 1: So unless you've been living in the middle of the

462
00:28:40,120 --> 00:28:42,880
Speaker 1: woods as a hermit, ice will be able to find

463
00:28:42,920 --> 00:28:45,760
Speaker 1: you if it wants to find you, relatively quickly. So

464
00:28:45,920 --> 00:28:49,200
Speaker 1: that's sort of a twentieth century concern at this point.

465
00:28:49,560 --> 00:28:52,120
Speaker 1: The finding is the easy part. The question is what

466
00:28:52,200 --> 00:28:53,960
Speaker 1: do you do when you find the person? Where do

467
00:28:54,000 --> 00:28:58,280
Speaker 1: you literally detain the person? And where do you actually

468
00:28:58,400 --> 00:29:01,960
Speaker 1: deport the person? And that where the Trump administration is

469
00:29:02,000 --> 00:29:03,600
Speaker 1: going to have their work cut out for them.

470
00:29:03,920 --> 00:29:09,160
Speaker 3: Which countries have not agreed to receive deportation flights, So

471
00:29:09,320 --> 00:29:10,120
Speaker 3: right now.

472
00:29:09,960 --> 00:29:13,160
Speaker 1: It's almost impossible to deport anyone to China, which is

473
00:29:13,200 --> 00:29:15,840
Speaker 1: a big source of our removal orders. We have tens

474
00:29:15,840 --> 00:29:18,880
Speaker 1: of thousands of not over one hundred thousand removal orders

475
00:29:18,920 --> 00:29:21,600
Speaker 1: for people who can be deported to China, but China

476
00:29:21,640 --> 00:29:25,360
Speaker 1: won't accept those individuals. Cuba is another big one. Cuba.

477
00:29:25,400 --> 00:29:28,160
Speaker 1: There's probably hundreds of thousands of Cubans who can be

478
00:29:28,240 --> 00:29:31,720
Speaker 1: deported to Cuba, but Cuba has not and probably will

479
00:29:31,720 --> 00:29:35,000
Speaker 1: not accept people. Given the country is almost in complete

480
00:29:35,120 --> 00:29:39,000
Speaker 1: ruins and there's another hurricane potentially coming there and so

481
00:29:39,080 --> 00:29:42,760
Speaker 1: the country is still destabilized. Accepting hundreds of thousands of

482
00:29:42,760 --> 00:29:46,440
Speaker 1: people is likely not an option there. Venezuela has not

483
00:29:46,560 --> 00:29:51,520
Speaker 1: accepted recently people to be deported back to Venezuela. Haiti

484
00:29:51,960 --> 00:29:55,440
Speaker 1: basically has no government. They fired their prime minister. How

485
00:29:55,480 --> 00:29:59,280
Speaker 1: do you deport people there? Nicaragua is another country that

486
00:29:59,520 --> 00:30:02,680
Speaker 1: doesn't let people get deported back to Nicaragua from the

487
00:30:02,760 --> 00:30:07,640
Speaker 1: United States. And so those are just some examples, but

488
00:30:08,040 --> 00:30:10,720
Speaker 1: pretty much any country, if you're going to start doing

489
00:30:10,920 --> 00:30:15,320
Speaker 1: large numbers of people may start objecting to that as saying, look,

490
00:30:15,320 --> 00:30:18,680
Speaker 1: you're going to destabilize our country. Because the United States

491
00:30:18,720 --> 00:30:21,360
Speaker 1: is a big country with three hundred and fifty million people,

492
00:30:21,800 --> 00:30:24,920
Speaker 1: but countries with a million people, if you suddenly put

493
00:30:24,920 --> 00:30:29,360
Speaker 1: in fifty thousand deportees who are all criminals, that could

494
00:30:29,440 --> 00:30:32,680
Speaker 1: lead to quite the destabilization in those countries, and so

495
00:30:32,760 --> 00:30:37,000
Speaker 1: they may do everything possible to try to thwart these deportations.

496
00:30:37,040 --> 00:30:40,080
Speaker 3: Trump said on NBC. I think that there's no price

497
00:30:40,120 --> 00:30:43,600
Speaker 3: tag on this, but I saw estimates that put the

498
00:30:43,640 --> 00:30:46,000
Speaker 3: cost at more than three hundred billion dollars.

499
00:30:46,560 --> 00:30:50,440
Speaker 1: Well, it depends what kinds of costs you're incorporating into this.

500
00:30:50,600 --> 00:30:53,560
Speaker 1: So first of all, there's the normal cost that everyone

501
00:30:53,600 --> 00:30:56,800
Speaker 1: would agree to include, which are the costs of detention,

502
00:30:57,360 --> 00:31:00,360
Speaker 1: which include obviously care and feeding and medicine and all

503
00:31:00,400 --> 00:31:02,680
Speaker 1: of that for the people while they're in custody. The

504
00:31:02,760 --> 00:31:05,920
Speaker 1: cost of the actual removal itself, the planes. Many times

505
00:31:05,960 --> 00:31:09,560
Speaker 1: ICE uses chartered planes to do this, all of that,

506
00:31:09,680 --> 00:31:12,640
Speaker 1: But then they talk about the cost of what happens

507
00:31:12,640 --> 00:31:17,840
Speaker 1: then to the economy because interestingly, an undocumented person when

508
00:31:17,840 --> 00:31:21,920
Speaker 1: they're working in the United States is a net positive

509
00:31:22,000 --> 00:31:24,920
Speaker 1: to the US federal budget because what's happening is they're

510
00:31:24,920 --> 00:31:28,360
Speaker 1: paying taxes and they're not getting any benefits because they

511
00:31:28,400 --> 00:31:31,640
Speaker 1: don't qualify for any benefits. And so this is actually

512
00:31:31,720 --> 00:31:34,760
Speaker 1: something that the Congressional Budget Office talks about all the time.

513
00:31:35,080 --> 00:31:38,120
Speaker 1: It's only when people get status and can get benefits

514
00:31:38,240 --> 00:31:41,400
Speaker 1: that they become potentially a net negative to the budget.

515
00:31:41,640 --> 00:31:45,440
Speaker 1: But when you remove all these undocumented workers from the economy,

516
00:31:45,680 --> 00:31:49,960
Speaker 1: you actually create a larger budget deficit hole, and so

517
00:31:50,080 --> 00:31:53,360
Speaker 1: that's also being counted toward those three hundred billion dollars.

518
00:31:53,640 --> 00:31:57,200
Speaker 3: There are some immigration policies that Trump wants to put

519
00:31:57,240 --> 00:32:00,800
Speaker 3: in place. Again, why does the remain in Mexico. How

520
00:32:00,840 --> 00:32:02,600
Speaker 3: difficult would it be to restore that?

521
00:32:03,000 --> 00:32:03,160
Speaker 5: Well?

522
00:32:03,240 --> 00:32:05,840
Speaker 1: Under the remain in Mexico policy, the way that would

523
00:32:05,880 --> 00:32:08,640
Speaker 1: work is that in an individual enters the United States

524
00:32:08,680 --> 00:32:12,280
Speaker 1: and asks for asylum, their asylum application is put into

525
00:32:12,280 --> 00:32:15,400
Speaker 1: the system and is put in line. But where you

526
00:32:15,520 --> 00:32:19,560
Speaker 1: wait is in Mexico. You don't wait in the United States.

527
00:32:19,600 --> 00:32:23,560
Speaker 1: And so that was finally allowed by the Supreme Court

528
00:32:23,600 --> 00:32:27,080
Speaker 1: as legal in twenty nineteen and was about to be

529
00:32:27,120 --> 00:32:31,360
Speaker 1: implemented in earnest by the Trump administration until COVID happened,

530
00:32:31,720 --> 00:32:34,400
Speaker 1: And then that didn't end up happening because what happened

531
00:32:34,440 --> 00:32:37,680
Speaker 1: was instead of putting the cases in the line, the

532
00:32:37,720 --> 00:32:42,400
Speaker 1: Trump administration simply just rejected people. And that actually continued

533
00:32:42,400 --> 00:32:45,560
Speaker 1: into the Biden administration, and, believe it or not, as

534
00:32:45,600 --> 00:32:49,720
Speaker 1: happening now. So the remain in Mexico policy will only

535
00:32:49,760 --> 00:32:53,280
Speaker 1: be needed if the band that is currently in place

536
00:32:53,360 --> 00:32:56,640
Speaker 1: which the Biden administration has in place at the moment,

537
00:32:57,160 --> 00:33:00,480
Speaker 1: is overturned by the court. Now it is likely to

538
00:33:00,520 --> 00:33:02,640
Speaker 1: be overturned by the courts. That case has sort of

539
00:33:02,640 --> 00:33:06,040
Speaker 1: been low walked because of the election. I don't think

540
00:33:06,080 --> 00:33:10,480
Speaker 1: that the people suing wanted to destabilize the border situation

541
00:33:10,640 --> 00:33:14,000
Speaker 1: right before the election. But now that the election has happened,

542
00:33:14,040 --> 00:33:18,280
Speaker 1: that case is back up in the forefront. And if

543
00:33:18,280 --> 00:33:22,840
Speaker 1: the Biden border policy is enjoined, which is essentially a ban,

544
00:33:23,000 --> 00:33:26,800
Speaker 1: nobody can apply for asylum right now who entered illegally

545
00:33:27,080 --> 00:33:30,760
Speaker 1: into the United States. If that ban is taken away

546
00:33:30,920 --> 00:33:33,240
Speaker 1: by the courts and said that that ban is illegal,

547
00:33:33,560 --> 00:33:36,600
Speaker 1: that's when the Trump administration will need to use remain

548
00:33:36,720 --> 00:33:41,280
Speaker 1: in Mexico. And the obstacle there is that Mexico has

549
00:33:41,280 --> 00:33:43,560
Speaker 1: to agree to do this, and a couple of things

550
00:33:43,560 --> 00:33:46,480
Speaker 1: have happened since the last Trump administration. The Supreme Court

551
00:33:46,760 --> 00:33:50,080
Speaker 1: of Mexico has said that that's not legal. But the

552
00:33:50,200 --> 00:33:53,840
Speaker 1: question will be what does that mean If Trump threatens

553
00:33:53,960 --> 00:33:57,760
Speaker 1: Mexico with fifty percent tariffs on their cars unless they

554
00:33:57,800 --> 00:34:01,520
Speaker 1: do this. Does the new president of Mexico, Miss Shinbaum,

555
00:34:01,960 --> 00:34:04,040
Speaker 1: then say, well, we're gonna have to figure something out

556
00:34:04,040 --> 00:34:06,440
Speaker 1: with our Supreme Court and everything else to make this

557
00:34:06,640 --> 00:34:09,480
Speaker 1: a possibility, because we don't want fifty percent tariffs on

558
00:34:09,520 --> 00:34:13,320
Speaker 1: our cars. So all of these levers are in play

559
00:34:13,520 --> 00:34:16,600
Speaker 1: to try to figure out whether remain in Mexico needs

560
00:34:16,600 --> 00:34:19,080
Speaker 1: to be placed back and can it be placed back?

561
00:34:19,360 --> 00:34:21,160
Speaker 3: And what do you think about the choice of Tom

562
00:34:21,200 --> 00:34:22,720
Speaker 3: Holman as borders.

563
00:34:22,239 --> 00:34:24,919
Speaker 1: Are Tom Holman, the thing I can say about him

564
00:34:25,000 --> 00:34:28,359
Speaker 1: is he has always been, under many different presidents, a

565
00:34:28,400 --> 00:34:32,120
Speaker 1: public servant who salutes the flag, and when people have

566
00:34:32,320 --> 00:34:35,640
Speaker 1: given him a lawful order, he has executed the lawful order.

567
00:34:35,800 --> 00:34:38,200
Speaker 1: And so this is what he's being charged to do now,

568
00:34:38,320 --> 00:34:42,399
Speaker 1: is to lead the largest deportation program in history. Now,

569
00:34:42,520 --> 00:34:46,360
Speaker 1: because he comes from Ice and because he has lived

570
00:34:46,360 --> 00:34:51,880
Speaker 1: this for several decades, he understands the actual challenges from

571
00:34:51,920 --> 00:34:55,640
Speaker 1: a legal and logistical standpoint in a way that appointing

572
00:34:55,800 --> 00:34:59,080
Speaker 1: somebody who's a more political person but less of a

573
00:34:59,160 --> 00:35:02,560
Speaker 1: detailed orient the person wouldn't know. And that's why I've

574
00:35:02,600 --> 00:35:04,759
Speaker 1: heard come home and say things like, look, we're gonna

575
00:35:04,800 --> 00:35:07,560
Speaker 1: have priorities, We're going to have certain people that we

576
00:35:07,719 --> 00:35:09,919
Speaker 1: look at first, because at the end of the day,

577
00:35:10,000 --> 00:35:12,640
Speaker 1: that's actually how you have to do this Leon.

578
00:35:12,719 --> 00:35:16,640
Speaker 3: We've talked a lot about the obstacles, but bottom line,

579
00:35:16,920 --> 00:35:19,320
Speaker 3: do you think Trump will be able to carry out

580
00:35:19,360 --> 00:35:21,800
Speaker 3: these nass deportations?

581
00:35:22,280 --> 00:35:26,120
Speaker 1: People don't remember what happened in two thousand and seven.

582
00:35:26,160 --> 00:35:28,799
Speaker 1: Two thousand and seven was the last time there was

583
00:35:28,880 --> 00:35:33,560
Speaker 1: actually any significant robust immigration enforcement in the middle of

584
00:35:33,600 --> 00:35:37,280
Speaker 1: the street, these sort of large scale raids of work fits.

585
00:35:37,680 --> 00:35:40,960
Speaker 1: When that last happened, that puts such fear in the

586
00:35:41,000 --> 00:35:45,000
Speaker 1: immigrant community that people stopped going to work, people were hiding.

587
00:35:45,200 --> 00:35:48,520
Speaker 1: So what I think they're actually trying to accomplish more

588
00:35:48,560 --> 00:35:51,439
Speaker 1: than anything, is like what you're seeing in all these

589
00:35:51,480 --> 00:35:54,440
Speaker 1: other areas with foreign policy and with tariffs and where

590
00:35:54,480 --> 00:35:57,840
Speaker 1: everything else, you sort of lay down a marker that

591
00:35:57,920 --> 00:35:59,840
Speaker 1: this is going to be the worst thing you've ever seen.

592
00:36:00,400 --> 00:36:03,480
Speaker 1: And what you're hoping it does is it incentivizes enough

593
00:36:03,520 --> 00:36:06,239
Speaker 1: people to self support you are going to see a

594
00:36:06,320 --> 00:36:10,279
Speaker 1: more robust effort to remove people. But I think at

595
00:36:10,280 --> 00:36:13,520
Speaker 1: the end of the day, if four hundred thousand people

596
00:36:13,600 --> 00:36:16,879
Speaker 1: end up getting removed in twenty twenty five, that might

597
00:36:16,960 --> 00:36:21,440
Speaker 1: be ambitious based on where the infrastructure is now, and

598
00:36:21,480 --> 00:36:24,520
Speaker 1: so we're not talking about ten millions but the hope

599
00:36:24,600 --> 00:36:27,400
Speaker 1: is that if it's done in a way that creates

600
00:36:27,520 --> 00:36:32,040
Speaker 1: enough nervousness in the community, that individuals will decide that

601
00:36:32,160 --> 00:36:34,880
Speaker 1: they can't live with this level of nervousness and they

602
00:36:34,920 --> 00:36:37,680
Speaker 1: would take matters into their own hands and leave the country.

603
00:36:38,120 --> 00:36:41,799
Speaker 3: Thanks Leon, always a pleasure. That's Leon Fresco of Honda Knight.

604
00:36:42,120 --> 00:36:44,560
Speaker 3: And that's it for this edition of the Bloomberg Law Show.

605
00:36:44,920 --> 00:36:47,200
Speaker 3: Remember you can always get the latest legal news by

606
00:36:47,200 --> 00:36:51,000
Speaker 3: subscribing to the Bloomberg Law Podcast or downloading this show

607
00:36:51,000 --> 00:36:55,040
Speaker 3: at Bloomberg dot com, slash podcast, slash Law. I'm joom

608
00:36:55,080 --> 00:36:56,880
Speaker 3: Bronco and you're listening to Bloomberg