1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,880 --> 00:00:13,280 Speaker 2: President Donald Trump's efforts to send troops into democratic led 3 00:00:13,360 --> 00:00:17,439 Speaker 2: cities is facing its biggest legal tests yet, with a 4 00:00:17,480 --> 00:00:20,600 Speaker 2: trial this week over his power to deploy the National 5 00:00:20,640 --> 00:00:24,600 Speaker 2: Guard to Portland, Oregon to counter protests. And of course 6 00:00:24,640 --> 00:00:27,240 Speaker 2: there is the deployment to Chicago, which is in a 7 00:00:27,320 --> 00:00:31,600 Speaker 2: holding mode right now before the Supreme Court. My guest 8 00:00:31,680 --> 00:00:35,200 Speaker 2: is immigration law expert Leon Fresco, a partner at Holland 9 00:00:35,240 --> 00:00:42,280 Speaker 2: and Knight. There are lawsuits challenging Trump's deployments in Los Angeles, Chicago, Portland, 10 00:00:42,840 --> 00:00:46,000 Speaker 2: and DC making their way through the courts. Have any 11 00:00:46,040 --> 00:00:50,320 Speaker 2: of them so far answered the question of whether he 12 00:00:50,760 --> 00:00:55,880 Speaker 2: legally invoked Section twelve four h six of Title ten 13 00:00:56,200 --> 00:01:01,600 Speaker 2: to bring state National Guard troops under federal cos well. 14 00:01:01,640 --> 00:01:04,960 Speaker 1: The closest cases that have done this are the two 15 00:01:05,000 --> 00:01:10,160 Speaker 1: to one panel decision in the Portland case, where the 16 00:01:10,240 --> 00:01:14,080 Speaker 1: Ninth Circuit Court of Appeals ruled in favor of President Trump. 17 00:01:14,160 --> 00:01:18,320 Speaker 1: And they said that the way a court analyzes this, 18 00:01:18,520 --> 00:01:20,920 Speaker 1: they're allowed to analyze it. So at least they got 19 00:01:20,959 --> 00:01:23,680 Speaker 1: that far. They didn't say that the courts can't analyze it, 20 00:01:24,000 --> 00:01:27,080 Speaker 1: but they said they have to use a highly deferential 21 00:01:27,640 --> 00:01:31,360 Speaker 1: test and that the standard of review was quote, whether 22 00:01:31,400 --> 00:01:34,720 Speaker 1: there was a colorable assessment of the facts in law 23 00:01:35,080 --> 00:01:38,080 Speaker 1: within a range of honest judgment, which is a highly 24 00:01:38,520 --> 00:01:42,800 Speaker 1: deferential standard that basically said, if the President had any 25 00:01:42,840 --> 00:01:47,360 Speaker 1: sort of decent argument for saying that the Guard needed 26 00:01:47,440 --> 00:01:52,320 Speaker 1: to be deployed in order to either enforce federal law 27 00:01:52,520 --> 00:01:57,640 Speaker 1: or prevent rebellion circumstances, that would be enough. The dissenting 28 00:01:57,760 --> 00:02:00,000 Speaker 1: judge said, no, no, no, this is just like a normal 29 00:02:00,120 --> 00:02:04,560 Speaker 1: factual question where you have a hearing or a trial 30 00:02:04,640 --> 00:02:07,600 Speaker 1: and you come to the factual decision like any trial, 31 00:02:08,200 --> 00:02:11,400 Speaker 1: was there a murder, yes or no, it's not any 32 00:02:11,400 --> 00:02:15,359 Speaker 1: difference that's given you have a trial, and in this case, 33 00:02:15,400 --> 00:02:19,600 Speaker 1: whoever wins under a preponderance of the evidence standard would win. 34 00:02:20,320 --> 00:02:24,480 Speaker 1: And the dissenting judge said that there wasn't enough evidence 35 00:02:24,880 --> 00:02:28,360 Speaker 1: that there was actually any sort of rebellion or other 36 00:02:28,480 --> 00:02:31,519 Speaker 1: issues in Portland. And so now this two to one 37 00:02:31,680 --> 00:02:34,240 Speaker 1: decision is now going to go to on bank review. 38 00:02:34,720 --> 00:02:38,720 Speaker 1: The Chief Judge said for the court, without needing anybody 39 00:02:38,760 --> 00:02:41,840 Speaker 1: to ask, the Chief Judge, there should be on bank review. 40 00:02:41,919 --> 00:02:44,480 Speaker 1: And now there's going to be on bank review to 41 00:02:44,560 --> 00:02:50,480 Speaker 1: determine whether that two to one decision would apply. In Chicago, 42 00:02:51,280 --> 00:02:56,160 Speaker 1: we have a similar situation where the City of Chicago 43 00:02:56,200 --> 00:02:59,560 Speaker 1: and the State of Illinois also sued, arguing that the 44 00:02:59,600 --> 00:03:04,480 Speaker 1: deployment of the National Guard in the Chicago areas also 45 00:03:04,560 --> 00:03:07,960 Speaker 1: violated the Statute and the Tenth Amendment and the posse 46 00:03:08,120 --> 00:03:12,960 Speaker 1: comitatis law, which prevents federal troops from enforcing civil laws. 47 00:03:13,480 --> 00:03:16,960 Speaker 1: And the judge in that case issued a temporary restraining order. 48 00:03:17,360 --> 00:03:22,080 Speaker 1: The Seventh Circuit upheld the ruling, and the President Trump 49 00:03:22,200 --> 00:03:25,160 Speaker 1: asked the Supreme Court to lift the tro And now 50 00:03:25,200 --> 00:03:28,400 Speaker 1: the Supreme Court in that case has asked for additional 51 00:03:28,440 --> 00:03:34,639 Speaker 1: briefing to try to determine whether these words regular forces 52 00:03:35,160 --> 00:03:38,720 Speaker 1: in the Statute means military forces, and then how that 53 00:03:38,840 --> 00:03:43,920 Speaker 1: interpretation affects the president's authority to federalize the Guard. And 54 00:03:44,000 --> 00:03:47,040 Speaker 1: so at the moment, that's where we are on these things. 55 00:03:47,040 --> 00:03:51,960 Speaker 1: We don't know exactly what the president can do, what 56 00:03:52,160 --> 00:03:54,680 Speaker 1: the standard of review is, et cetera. 57 00:03:55,120 --> 00:03:57,240 Speaker 2: So let's go to the Supreme Court for a second. 58 00:03:57,360 --> 00:04:00,840 Speaker 2: And you know that's because the Trump administration filed an 59 00:04:00,880 --> 00:04:06,360 Speaker 2: emergency petition to allow them to deploy the troops to Chicago. 60 00:04:06,880 --> 00:04:11,240 Speaker 2: So nine days past before the justices issued this order 61 00:04:11,360 --> 00:04:14,800 Speaker 2: requesting more information. And this has been a court that's 62 00:04:14,840 --> 00:04:19,920 Speaker 2: been very quick to answer Trump's emergency requests, usually in 63 00:04:19,920 --> 00:04:23,160 Speaker 2: his favor. What does it tell you that with this request, 64 00:04:23,680 --> 00:04:28,120 Speaker 2: they're asking about the specific wording of the law, which 65 00:04:28,160 --> 00:04:31,240 Speaker 2: says a president may deploy the guard when he is 66 00:04:31,320 --> 00:04:35,800 Speaker 2: quote unable with the regular forces to execute the laws 67 00:04:35,839 --> 00:04:37,000 Speaker 2: of the United States. 68 00:04:38,160 --> 00:04:42,400 Speaker 1: What is interesting is they're trying to figure out because 69 00:04:42,400 --> 00:04:46,040 Speaker 1: there's two different types of I would say armed personnel 70 00:04:46,160 --> 00:04:51,120 Speaker 1: that's discussed. One is regular forces. So who are these 71 00:04:51,240 --> 00:04:55,160 Speaker 1: regular forces that the president is allowed to use? And 72 00:04:55,200 --> 00:04:59,039 Speaker 1: then when those quote unquote regular forces fail, then the 73 00:04:59,080 --> 00:05:02,880 Speaker 1: president is allowed to call in federal service members and 74 00:05:03,080 --> 00:05:05,800 Speaker 1: units of the National Guard of any state. So the 75 00:05:05,920 --> 00:05:09,640 Speaker 1: question is does regular forces mean that the president can 76 00:05:09,680 --> 00:05:13,760 Speaker 1: already send in military troops. That's a little bit complicated 77 00:05:13,800 --> 00:05:17,159 Speaker 1: because of it is then who are these federal service 78 00:05:17,240 --> 00:05:21,200 Speaker 1: members that the president is then allowed to send in 79 00:05:21,680 --> 00:05:24,240 Speaker 1: plus the units of the National Guard of any state. 80 00:05:24,880 --> 00:05:28,120 Speaker 1: So that's the question. Does it mean US military forces 81 00:05:28,360 --> 00:05:32,000 Speaker 1: or does it mean people like FBI, you know, Homeland 82 00:05:32,040 --> 00:05:35,839 Speaker 1: security investigation and things of that nature, so sort of 83 00:05:36,120 --> 00:05:41,480 Speaker 1: federal police power force type people, but not actual US 84 00:05:41,600 --> 00:05:45,600 Speaker 1: military troops. I think it would make a lot less 85 00:05:45,680 --> 00:05:51,720 Speaker 1: sense if regular forces didn't just mean FBI ice HSI, 86 00:05:51,880 --> 00:05:54,040 Speaker 1: that kind of thing, the sort of people who enforce 87 00:05:54,360 --> 00:05:58,200 Speaker 1: the federal law, the ATF that kind of group as 88 00:05:58,200 --> 00:06:01,280 Speaker 1: opposed to the military. Because of it also meant the military. 89 00:06:01,680 --> 00:06:05,240 Speaker 1: Then who are these quote unquote federal service members that 90 00:06:05,279 --> 00:06:09,200 Speaker 1: can be called into service if the quote unquote regular 91 00:06:09,320 --> 00:06:13,040 Speaker 1: forces are not able to execute the law. So that's 92 00:06:13,080 --> 00:06:15,120 Speaker 1: what I think it means, but we'll have to wait 93 00:06:15,160 --> 00:06:17,680 Speaker 1: and see what the Supreme Court says. It means. 94 00:06:17,960 --> 00:06:19,920 Speaker 2: They don't seem to be in a hurry to decide 95 00:06:19,960 --> 00:06:24,840 Speaker 2: because the briefing schedule puts the briefings up until November seventeenth, 96 00:06:24,880 --> 00:06:28,279 Speaker 2: and then they have to decide. So that means what 97 00:06:28,480 --> 00:06:31,839 Speaker 2: three weeks or so where there won't be any deployment 98 00:06:31,880 --> 00:06:33,560 Speaker 2: of troops, correct. 99 00:06:33,600 --> 00:06:35,680 Speaker 1: I mean, this is one of the most complicated and 100 00:06:35,760 --> 00:06:40,440 Speaker 1: important consequential questions probably that the Supreme Court has had 101 00:06:40,480 --> 00:06:43,919 Speaker 1: in the last couple of decades, because it really does 102 00:06:44,360 --> 00:06:47,680 Speaker 1: get to the heart of what a president can and 103 00:06:47,720 --> 00:06:51,919 Speaker 1: can't do. With regard to using the military in the 104 00:06:51,960 --> 00:06:54,960 Speaker 1: normal streets of the big cities of America. So this 105 00:06:55,080 --> 00:06:58,480 Speaker 1: is not something to trivialize or to issue any kind 106 00:06:58,520 --> 00:07:01,760 Speaker 1: of quick ruling on. And I think if there was 107 00:07:01,800 --> 00:07:06,480 Speaker 1: an actual place in America right now that was ungovernable 108 00:07:07,120 --> 00:07:10,600 Speaker 1: and where people couldn't go to work and there were 109 00:07:10,680 --> 00:07:15,080 Speaker 1: barricades everywhere and nobody could go to school, maybe there 110 00:07:15,080 --> 00:07:19,120 Speaker 1: would be urgency here. But that's not really the urgency 111 00:07:19,200 --> 00:07:21,720 Speaker 1: anyone is talking about. There's not a city in America 112 00:07:21,760 --> 00:07:24,080 Speaker 1: where no one can go to work, or go to school, 113 00:07:24,240 --> 00:07:27,640 Speaker 1: or get treated in a hospital or any of those 114 00:07:27,920 --> 00:07:30,560 Speaker 1: major things. At all of these cities. Sports events are 115 00:07:30,600 --> 00:07:34,080 Speaker 1: still going on, Concerts are still going on, all of 116 00:07:34,120 --> 00:07:37,320 Speaker 1: these things, and so it's hard to say there's an 117 00:07:37,320 --> 00:07:40,840 Speaker 1: interrection going on. In a true national emergency where none 118 00:07:40,880 --> 00:07:43,520 Speaker 1: of those things were going on, maybe we'd have a 119 00:07:43,560 --> 00:07:46,200 Speaker 1: faster ruling. But I think the Court understands here it's 120 00:07:46,200 --> 00:07:47,560 Speaker 1: better to get it right. 121 00:07:48,000 --> 00:07:51,560 Speaker 2: But is a Supreme Court to look at the facts 122 00:07:51,640 --> 00:07:54,000 Speaker 2: or are they going to look at the law and 123 00:07:54,120 --> 00:07:55,200 Speaker 2: interpret that. 124 00:07:55,640 --> 00:07:58,520 Speaker 1: Well, no, I'm saying they're looking at these facts unofficially 125 00:07:58,600 --> 00:08:02,560 Speaker 1: to determine how fast they're going in the speed of 126 00:08:02,600 --> 00:08:05,120 Speaker 1: the case. But I think what they're going to look 127 00:08:05,120 --> 00:08:08,080 Speaker 1: at for the decision in the case is the level 128 00:08:08,120 --> 00:08:12,880 Speaker 1: of defference that the President's determination gets. And then based 129 00:08:12,960 --> 00:08:17,160 Speaker 1: on the level of defference, they may remand for a 130 00:08:17,280 --> 00:08:20,680 Speaker 1: trial or hearing based on that level of difference, or 131 00:08:20,720 --> 00:08:24,120 Speaker 1: they may decide they have enough evidence to move forward 132 00:08:24,600 --> 00:08:27,840 Speaker 1: with that level of difference and decide, here's what the 133 00:08:27,840 --> 00:08:32,080 Speaker 1: facts dictate. Based on the level of difference, we decide. 134 00:08:32,400 --> 00:08:34,480 Speaker 1: So it could go either of those two ways, but 135 00:08:34,520 --> 00:08:37,160 Speaker 1: we'll just have to wait for the Supreme Court to say. 136 00:08:37,360 --> 00:08:39,720 Speaker 1: And plus that may end up being different in Chicago 137 00:08:40,200 --> 00:08:43,280 Speaker 1: versus in Portland or in Los Angeles. They may decide 138 00:08:43,520 --> 00:08:47,160 Speaker 1: that there is a bigger crisis in one location than 139 00:08:47,200 --> 00:08:50,880 Speaker 1: in another, and so in one location they can deploy 140 00:08:51,000 --> 00:08:54,199 Speaker 1: the federal troops, and in another location they cannot because 141 00:08:54,200 --> 00:08:58,040 Speaker 1: it doesn't rise to whatever new standard they decided to 142 00:08:58,120 --> 00:08:59,120 Speaker 1: apply in this case. 143 00:09:00,040 --> 00:09:03,720 Speaker 2: Let's turned out to Greg Bavino, the chief of the 144 00:09:03,760 --> 00:09:09,480 Speaker 2: Border Patrol's El Centro sector in California, who's been very 145 00:09:09,559 --> 00:09:15,280 Speaker 2: high profile in the Trump Administration's crackdowns on immigration in 146 00:09:15,760 --> 00:09:20,480 Speaker 2: sanctuary cities. He's been three decades with the Border Patrol, 147 00:09:20,559 --> 00:09:24,880 Speaker 2: and he's emerged as the face of the Trump administration's 148 00:09:25,120 --> 00:09:31,319 Speaker 2: most aggressive operations against migrants in these democratic led cities. 149 00:09:31,600 --> 00:09:34,040 Speaker 1: Well, he comes from the Border Patrol, from the US 150 00:09:34,120 --> 00:09:37,640 Speaker 1: Customs of Border Protection. He doesn't come from ICE, which 151 00:09:37,679 --> 00:09:41,480 Speaker 1: is the Immigration and Customs Enforcement division that actually is 152 00:09:41,640 --> 00:09:47,160 Speaker 1: in charge with the detention, apprehension, and removal of people 153 00:09:47,240 --> 00:09:50,120 Speaker 1: who are here illegally. That's who does it. It's nice. 154 00:09:50,200 --> 00:09:53,480 Speaker 1: The Border Patrol has a different mission. They have two 155 00:09:53,640 --> 00:09:57,240 Speaker 1: different parts. They have one that protects the United States 156 00:09:57,240 --> 00:10:00,560 Speaker 1: from people trying to cross in between ports of entry, 157 00:10:00,840 --> 00:10:03,200 Speaker 1: and they have a second mission of guarding ports of 158 00:10:03,360 --> 00:10:07,400 Speaker 1: entry themselves so that people don't get through the ports 159 00:10:07,400 --> 00:10:10,959 Speaker 1: of entry who shouldn't get through. And this is the 160 00:10:11,000 --> 00:10:14,319 Speaker 1: area of the Border Patrol where mister Baveno comes from. 161 00:10:14,640 --> 00:10:16,960 Speaker 1: And this has happened in the past because what happens 162 00:10:17,040 --> 00:10:20,920 Speaker 1: is that within the Department of Homeland Security they get 163 00:10:20,920 --> 00:10:23,840 Speaker 1: the impression that the people who come through the Border 164 00:10:23,880 --> 00:10:29,040 Speaker 1: Patrol have a more police oriented view of the world 165 00:10:29,120 --> 00:10:32,520 Speaker 1: because that's what they're doing. They're actually walking around looking 166 00:10:32,559 --> 00:10:36,040 Speaker 1: for crime, so to speak. If they see someone cross 167 00:10:36,040 --> 00:10:37,959 Speaker 1: the border, then they're going to apprehend them the same 168 00:10:38,040 --> 00:10:40,960 Speaker 1: way a police officer if they see someone robbing a store, 169 00:10:41,360 --> 00:10:46,480 Speaker 1: they will apprehend them. Whereas ICE traditionally doesn't have that 170 00:10:46,640 --> 00:10:51,400 Speaker 1: ethos of operating as roving cops on a beat. They 171 00:10:51,440 --> 00:10:54,760 Speaker 1: have more of a here's a list of people we 172 00:10:54,920 --> 00:10:58,720 Speaker 1: are passed with deporting today, and now we need to 173 00:10:58,760 --> 00:11:01,280 Speaker 1: either go pick them up at work, or pick them 174 00:11:01,360 --> 00:11:03,480 Speaker 1: up in the courthouse, or pick them up at home, 175 00:11:04,080 --> 00:11:08,280 Speaker 1: and it's a much more targeted planned day. That's how 176 00:11:08,320 --> 00:11:11,560 Speaker 1: ICE likes to operate, is within the targeted planned day 177 00:11:11,960 --> 00:11:15,960 Speaker 1: for operational concerns. And this has developed over thirty years. 178 00:11:16,200 --> 00:11:18,560 Speaker 1: This is not something that's happened over a day or two. 179 00:11:19,120 --> 00:11:23,000 Speaker 1: Because what happens is when ICE starts operating in the 180 00:11:23,040 --> 00:11:26,520 Speaker 1: same way local police would start operating, which is just 181 00:11:26,800 --> 00:11:31,360 Speaker 1: look around and try to find crime, then what you're 182 00:11:31,360 --> 00:11:34,640 Speaker 1: doing is looking around and trying to find people who 183 00:11:34,679 --> 00:11:38,720 Speaker 1: are there illegally. So just their existence in America is 184 00:11:38,760 --> 00:11:43,079 Speaker 1: the crime. And whether you like this policy or don't 185 00:11:43,160 --> 00:11:46,240 Speaker 1: like the policy, I'm not even saying anything about the policy. 186 00:11:46,559 --> 00:11:50,719 Speaker 1: I would just hope that the listeners of your broadcast 187 00:11:50,800 --> 00:11:53,920 Speaker 1: would agree that whether you like it or not when 188 00:11:54,080 --> 00:11:58,400 Speaker 1: that gets implemented. When ICE gets deployed in the same 189 00:11:58,400 --> 00:12:02,600 Speaker 1: way local police would be deployed, it creates tension on 190 00:12:02,720 --> 00:12:06,600 Speaker 1: both sides of the equation, where the people who don't 191 00:12:06,720 --> 00:12:11,840 Speaker 1: like ICE deployed in that manner start protesting, start barricading ICE, 192 00:12:11,960 --> 00:12:15,920 Speaker 1: start hiding people in their houses, and start doing everything 193 00:12:15,960 --> 00:12:19,080 Speaker 1: they can to resist ICE operating in that manner. And 194 00:12:19,160 --> 00:12:22,280 Speaker 1: this isn't even new either. You can find stories about 195 00:12:22,280 --> 00:12:25,600 Speaker 1: this every day for the last thirty years. It's just 196 00:12:25,600 --> 00:12:27,320 Speaker 1: that when you do it at a higher scale, you 197 00:12:27,360 --> 00:12:31,360 Speaker 1: get more of it. Or if you don't do this, 198 00:12:31,480 --> 00:12:33,560 Speaker 1: then you have the people who say, well, we're not 199 00:12:33,920 --> 00:12:36,920 Speaker 1: getting enough arrests, And it's true, you're not going to 200 00:12:36,960 --> 00:12:41,520 Speaker 1: get enough arrests if you don't have these roving enforcement 201 00:12:42,559 --> 00:12:45,160 Speaker 1: arrests that happened where you could just grab thirty people 202 00:12:45,200 --> 00:12:48,199 Speaker 1: at one place at one location just because you think 203 00:12:48,240 --> 00:12:51,520 Speaker 1: it looks suspicious there. Yes, that will increase the number 204 00:12:51,559 --> 00:12:55,720 Speaker 1: of arrests, but that also increases the level of tension 205 00:12:55,760 --> 00:12:58,760 Speaker 1: that you're tightening in that area when you do that. 206 00:12:58,960 --> 00:13:00,640 Speaker 1: And again I'm not thinking that, I mean you should 207 00:13:00,720 --> 00:13:04,520 Speaker 1: do it or you shouldn't do it, but that's why 208 00:13:04,679 --> 00:13:08,840 Speaker 1: the Trump administration has moved a lot of the ICE 209 00:13:09,000 --> 00:13:12,520 Speaker 1: agents who are leading these various local locations out of 210 00:13:12,559 --> 00:13:15,800 Speaker 1: their positions and is trying to bring in border patrol 211 00:13:15,840 --> 00:13:19,480 Speaker 1: people like mister Bovino, because it's saying we need to 212 00:13:19,600 --> 00:13:23,480 Speaker 1: change the ethos of ICE and turn it into a 213 00:13:23,960 --> 00:13:28,560 Speaker 1: police like unit that's roving around looking for crime, so 214 00:13:28,640 --> 00:13:31,360 Speaker 1: to speak. But in this case, again, the crime is 215 00:13:31,400 --> 00:13:34,680 Speaker 1: just the existence of the human being in America, which 216 00:13:34,720 --> 00:13:37,640 Speaker 1: is what makes it complicated. So you're not observing someone 217 00:13:38,200 --> 00:13:42,440 Speaker 1: stealing something, or you're not observing someone injuring somebody. You're 218 00:13:42,480 --> 00:13:46,960 Speaker 1: just observing someone standing there and you're asking yourself, is 219 00:13:47,000 --> 00:13:52,000 Speaker 1: this person that's standing there standing there illegally and you 220 00:13:52,040 --> 00:13:55,400 Speaker 1: don't know they might be, they might not be. But 221 00:13:55,600 --> 00:13:58,840 Speaker 1: the act of asking, over and over and over again 222 00:13:59,440 --> 00:14:02,760 Speaker 1: creates a level of tension that's completely different than any 223 00:14:02,760 --> 00:14:06,800 Speaker 1: other kind of police operation creates. And that's why I, 224 00:14:06,920 --> 00:14:10,560 Speaker 1: as I explained previously, I prefers the ethos of saying, look, 225 00:14:10,800 --> 00:14:13,720 Speaker 1: I'm sorry, this person Joe Smith is on a list, 226 00:14:14,320 --> 00:14:17,200 Speaker 1: they committed a crime or they were ordered deported in 227 00:14:17,240 --> 00:14:20,040 Speaker 1: two thousand and eight, and they've managed to stay here 228 00:14:20,080 --> 00:14:23,000 Speaker 1: seventeen years. Why do you think that you should defend 229 00:14:23,040 --> 00:14:27,440 Speaker 1: this person. That's a much easier law enforcement role to defend, 230 00:14:28,120 --> 00:14:30,640 Speaker 1: and that's why they like that as opposed to these 231 00:14:30,720 --> 00:14:31,960 Speaker 1: roving operations. 232 00:14:32,000 --> 00:14:35,160 Speaker 2: Coming up next, the governor of Illinois makes a Halloween 233 00:14:35,280 --> 00:14:42,920 Speaker 2: request to ice. A group of journalists, news advocacy organizations, 234 00:14:42,960 --> 00:14:47,480 Speaker 2: and protesters are suing the government, claiming that federal agents 235 00:14:47,640 --> 00:14:52,760 Speaker 2: aggressive tactics in Chicago violated their rights. The case has 236 00:14:52,800 --> 00:14:56,120 Speaker 2: grown into something of a referendum on the repeated use 237 00:14:56,160 --> 00:15:01,120 Speaker 2: of force by federal agents in the Trump administration crackdown 238 00:15:01,200 --> 00:15:05,840 Speaker 2: on illegal immigration. I've been talking to immigration lawyer Leon 239 00:15:05,920 --> 00:15:10,680 Speaker 2: Fresco of Honda Night Soully on in that Chicago case. 240 00:15:11,160 --> 00:15:16,520 Speaker 2: Federal Judge Sarah Ellis has issued some orders, including requiring 241 00:15:16,600 --> 00:15:21,680 Speaker 2: agents to wear visible identification and issue warnings before using 242 00:15:21,760 --> 00:15:25,880 Speaker 2: weapons like tear gas or pepper spray. And she's expressed 243 00:15:26,040 --> 00:15:30,920 Speaker 2: alarm over videos and photographs that show the agents confronting 244 00:15:31,000 --> 00:15:37,240 Speaker 2: protesters and deploying teargas at a weekend Halloween event. We've 245 00:15:37,240 --> 00:15:41,720 Speaker 2: been talking about Greg Bavino, the Border Patrol chief, and 246 00:15:41,800 --> 00:15:44,680 Speaker 2: she had him on the stand for about an hour 247 00:15:44,800 --> 00:15:48,520 Speaker 2: the other day, asking him about the enforcement tactics, and 248 00:15:48,600 --> 00:15:51,200 Speaker 2: she ordered him to come back every day to report 249 00:15:51,240 --> 00:15:55,240 Speaker 2: to her. But the Seventh Circuit Court of Appeals paused 250 00:15:55,240 --> 00:15:55,800 Speaker 2: that order. 251 00:15:56,400 --> 00:16:00,760 Speaker 1: Why well, the Seventh Circuit issued a vary shit decision 252 00:16:01,040 --> 00:16:03,840 Speaker 1: putting it on hold. But we can infer from that 253 00:16:03,840 --> 00:16:07,640 Speaker 1: that they agreed with the government's argument that the problem is, 254 00:16:07,720 --> 00:16:10,400 Speaker 1: and you have to look at this from a practical perspective, 255 00:16:10,840 --> 00:16:14,120 Speaker 1: not just from a well, what's the problem with one 256 00:16:14,200 --> 00:16:17,120 Speaker 1: hour of coming in and speaking to the judge every day? 257 00:16:17,400 --> 00:16:19,480 Speaker 1: But the truth is, if you're doing that, if you're 258 00:16:19,520 --> 00:16:22,840 Speaker 1: speaking to the judge every day for one hour, you're 259 00:16:23,240 --> 00:16:26,520 Speaker 1: legitimately preparing to give that testimony. Because no one just 260 00:16:26,520 --> 00:16:29,800 Speaker 1: sends a witness in to speak to a federal judge 261 00:16:30,040 --> 00:16:34,200 Speaker 1: without preparation for the testimony, giving them facts, giving them 262 00:16:34,480 --> 00:16:37,680 Speaker 1: everything that's happening that day. So basically, you will have 263 00:16:37,760 --> 00:16:40,880 Speaker 1: turned the head of the law enforcement operation into a 264 00:16:40,920 --> 00:16:44,520 Speaker 1: professional witness. This person wouldn't actually be able to do 265 00:16:44,840 --> 00:16:47,880 Speaker 1: any other work all day. Their entire day would be 266 00:16:47,920 --> 00:16:51,200 Speaker 1: devoted to learning the facts that they were going to 267 00:16:51,240 --> 00:16:54,800 Speaker 1: give the judge that day, preparing the testimony, and then 268 00:16:54,920 --> 00:16:57,680 Speaker 1: testifying that That would be an entire day of work, 269 00:16:58,120 --> 00:17:01,640 Speaker 1: and the federal government said, that's that been a thing 270 00:17:01,720 --> 00:17:05,400 Speaker 1: that's ever existed where we've ever had a federal judge 271 00:17:05,680 --> 00:17:10,440 Speaker 1: turn a US law enforcement official into a federal witness 272 00:17:10,880 --> 00:17:13,439 Speaker 1: that has to come every day and just do that 273 00:17:13,640 --> 00:17:16,480 Speaker 1: and not actually do the job they're supposed to do. 274 00:17:17,119 --> 00:17:21,280 Speaker 1: And they point out the federal government correctly that even 275 00:17:21,320 --> 00:17:23,600 Speaker 1: the plaintiffs didn't ask for this, This was just something 276 00:17:23,680 --> 00:17:27,840 Speaker 1: the judge did out of frustration with the federal government. 277 00:17:28,040 --> 00:17:30,760 Speaker 1: So the plaintiffs didn't ask for it, because I doubt 278 00:17:30,800 --> 00:17:33,760 Speaker 1: they would have even imagined the world where such relief 279 00:17:33,800 --> 00:17:36,719 Speaker 1: could have ever been granted. But the judge was so 280 00:17:36,800 --> 00:17:40,120 Speaker 1: frustrated that the judge granted the relief. And so I 281 00:17:40,160 --> 00:17:42,760 Speaker 1: do think it was very helpful to the federal government 282 00:17:42,800 --> 00:17:45,320 Speaker 1: to make an argument that, hey, if the plaintiffs don't 283 00:17:45,359 --> 00:17:49,359 Speaker 1: want something, why is the judge ordering it. 284 00:17:48,760 --> 00:17:52,240 Speaker 2: Still in place? Is her order that Bevino wear a 285 00:17:52,280 --> 00:17:55,880 Speaker 2: body camera and the government has to turn over all 286 00:17:55,920 --> 00:18:00,280 Speaker 2: reports documenting when agents used force against members of the 287 00:18:00,320 --> 00:18:04,959 Speaker 2: public and also the body camera video by tomorrow. 288 00:18:05,440 --> 00:18:07,440 Speaker 1: So correct, all of the sort of what I would 289 00:18:07,480 --> 00:18:11,720 Speaker 1: call transparency requirements and the use of force are all 290 00:18:11,960 --> 00:18:14,760 Speaker 1: still in effect, and we will wait and see what 291 00:18:15,280 --> 00:18:18,919 Speaker 1: both the Seventh Circuit says in principle at the end 292 00:18:18,960 --> 00:18:21,640 Speaker 1: of this and maybe what the Supreme Court says, and 293 00:18:21,720 --> 00:18:24,520 Speaker 1: if that is hell to be in effect, and that 294 00:18:24,600 --> 00:18:27,520 Speaker 1: could be something that could actually apply to all of 295 00:18:27,560 --> 00:18:30,879 Speaker 1: the ICE agents nationwide, is that they have to have 296 00:18:31,000 --> 00:18:35,080 Speaker 1: this sort of use of force transparency that didn't exist previously, 297 00:18:35,520 --> 00:18:38,199 Speaker 1: and they'll have to wear body cameras, they'll have to 298 00:18:38,240 --> 00:18:43,040 Speaker 1: identify themselves. They can't wear masks, and that would be 299 00:18:43,080 --> 00:18:46,760 Speaker 1: a dramatic change from the operating events in a lot 300 00:18:46,800 --> 00:18:48,120 Speaker 1: of places right now. 301 00:18:48,680 --> 00:18:51,880 Speaker 2: They all wear masks except for Bevino. He doesn't wear 302 00:18:51,880 --> 00:18:52,359 Speaker 2: a mask. 303 00:18:52,880 --> 00:18:55,719 Speaker 1: He seems to be very confident in this, there's no 304 00:18:55,760 --> 00:18:56,359 Speaker 1: doubt about that. 305 00:18:56,560 --> 00:18:59,919 Speaker 2: Apparently the Trump administration really likes him. Is there a 306 00:19:00,119 --> 00:19:03,400 Speaker 2: shake up? Then? Is the Trump administration trying to rely 307 00:19:03,560 --> 00:19:06,760 Speaker 2: more on the border patrol, which you know a lot 308 00:19:06,800 --> 00:19:12,480 Speaker 2: of these aggressive actions that we see are border patrol, 309 00:19:12,960 --> 00:19:13,480 Speaker 2: not ICE. 310 00:19:14,119 --> 00:19:18,160 Speaker 1: Correct, That's what's exactly happening, is the way ICE operates. Yes, 311 00:19:18,200 --> 00:19:22,160 Speaker 1: they're headquartered in DC. Yes they're part of Homeland Security. Yes, 312 00:19:22,200 --> 00:19:24,880 Speaker 1: they're part of the federal government and controlled by the President, 313 00:19:25,160 --> 00:19:27,960 Speaker 1: but they have all these local field offices, and in 314 00:19:28,000 --> 00:19:31,200 Speaker 1: the end, each local field office basically operates as its 315 00:19:31,200 --> 00:19:35,600 Speaker 1: own satellite that has its own policies, And so it matters. 316 00:19:35,640 --> 00:19:39,359 Speaker 1: If you have a field office director who is much 317 00:19:39,440 --> 00:19:43,399 Speaker 1: more oriented toward a aggressive enforcement posture, you're going to 318 00:19:43,480 --> 00:19:47,440 Speaker 1: have more aggressive enforcement in that field office area. Then 319 00:19:47,560 --> 00:19:50,200 Speaker 1: if you have a field office director who's not focused 320 00:19:50,240 --> 00:19:53,800 Speaker 1: as much on an aggressive enforcement posture. And so in 321 00:19:53,920 --> 00:19:57,760 Speaker 1: about six or seven cities, the administration has decided to 322 00:19:57,800 --> 00:20:01,040 Speaker 1: replace the field office directors that were there from ICE, 323 00:20:01,680 --> 00:20:05,200 Speaker 1: move them to DC, and replace them with people who 324 00:20:05,240 --> 00:20:08,080 Speaker 1: are coming from the Border Patrol to again have this 325 00:20:08,160 --> 00:20:11,840 Speaker 1: sort of focus on roving enforcement that we were talking 326 00:20:11,840 --> 00:20:15,439 Speaker 1: about earlier, where instead of looking for a set number 327 00:20:15,480 --> 00:20:18,520 Speaker 1: of people each day that ICE had determined based on 328 00:20:18,640 --> 00:20:22,760 Speaker 1: investigations the previous day or the previous week, it would 329 00:20:22,840 --> 00:20:25,200 Speaker 1: actually say, no, we're going to go to a more 330 00:20:25,200 --> 00:20:28,840 Speaker 1: aggressive posture and start questioning people on the streets about 331 00:20:28,840 --> 00:20:31,240 Speaker 1: whether they have a right to be in the United States. 332 00:20:31,520 --> 00:20:33,760 Speaker 2: I haven't heard the answer yet, but the governor of 333 00:20:33,800 --> 00:20:39,320 Speaker 2: Illinois asked ICE not to do any enforcement actions on 334 00:20:39,359 --> 00:20:40,360 Speaker 2: Halloween weekend. 335 00:20:41,119 --> 00:20:43,600 Speaker 1: I think that's the type of thing where the way 336 00:20:43,640 --> 00:20:47,359 Speaker 1: that usually gets resolved is there isn't an answer given 337 00:20:47,440 --> 00:20:51,480 Speaker 1: that capitulates to the governor's request, But it's just obviously 338 00:20:51,560 --> 00:20:55,520 Speaker 1: done in a way where Ice knows that they don't 339 00:20:55,560 --> 00:21:01,680 Speaker 1: want another conflagration happening during Halloween. They detain somebody who 340 00:21:01,680 --> 00:21:04,640 Speaker 1: shouldn't have been detained, and now everybody's in that sort 341 00:21:04,640 --> 00:21:09,680 Speaker 1: of Halloween frantic mode and riots start happening, and all 342 00:21:09,760 --> 00:21:13,560 Speaker 1: kinds of craziness occurs. And so I do think you're 343 00:21:13,640 --> 00:21:17,560 Speaker 1: not gonna see an answer that says, Okay, Governor Pritzker, 344 00:21:17,680 --> 00:21:20,040 Speaker 1: we agree with you. We're not going to enforce the 345 00:21:20,119 --> 00:21:24,640 Speaker 1: law on Halloween. All of these enforcement officers, everybody has 346 00:21:24,680 --> 00:21:26,520 Speaker 1: to remember our human beings. 347 00:21:26,880 --> 00:21:29,919 Speaker 2: Well, don't you think that Bevino. I mean, the point is, 348 00:21:30,000 --> 00:21:33,480 Speaker 2: and why the Trump administration likes him, is to put 349 00:21:33,560 --> 00:21:37,879 Speaker 2: fear into the hearts of immigrants so that they self deport. 350 00:21:37,960 --> 00:21:41,200 Speaker 2: I mean, the videos are pretty brutal. 351 00:21:42,000 --> 00:21:44,600 Speaker 1: Well, the point is this, at the end of the day, 352 00:21:45,119 --> 00:21:50,840 Speaker 1: putting aside again any personal opinions anybody has, whoever leads 353 00:21:50,880 --> 00:21:55,240 Speaker 1: the operation still relies upon people who live in those communities, 354 00:21:55,560 --> 00:21:59,600 Speaker 1: who work in those communities, and an inertia gets created 355 00:21:59,640 --> 00:22:03,120 Speaker 1: in all of this despite what people think, where that 356 00:22:03,240 --> 00:22:09,000 Speaker 1: inertia only allows certain amounts of limitations of conduct to occur. 357 00:22:09,359 --> 00:22:13,199 Speaker 1: And that's why you've seen the administration get frustrated and 358 00:22:13,240 --> 00:22:15,800 Speaker 1: they say, look, we were at we wanted three thousand 359 00:22:15,880 --> 00:22:18,680 Speaker 1: arrests a day, we were at two thousand. We thought 360 00:22:18,680 --> 00:22:20,280 Speaker 1: we were going to get there. Now we're back at 361 00:22:20,320 --> 00:22:24,400 Speaker 1: one thousand. What is happening? What's going on? And all 362 00:22:24,440 --> 00:22:27,760 Speaker 1: of this ignores that all of this enforcement needs to 363 00:22:27,800 --> 00:22:31,080 Speaker 1: be done by human beings who have morale issues, who, 364 00:22:31,119 --> 00:22:33,200 Speaker 1: by the way, aren't getting paid right now because the 365 00:22:33,240 --> 00:22:36,760 Speaker 1: government is shut down, and are worried about are they 366 00:22:36,760 --> 00:22:38,800 Speaker 1: going to be able to keep their house, Are they 367 00:22:38,800 --> 00:22:41,160 Speaker 1: going to be able to make their car payments? Are 368 00:22:41,160 --> 00:22:43,280 Speaker 1: they going to be able to pay their medical bills? 369 00:22:43,560 --> 00:22:46,720 Speaker 1: The last thing they're worried about is I want to 370 00:22:46,760 --> 00:22:50,040 Speaker 1: start creating a massive riot on Halloween. I don't think 371 00:22:50,320 --> 00:22:53,840 Speaker 1: that's a high priority for these poor agents who aren't 372 00:22:53,840 --> 00:22:57,480 Speaker 1: getting paid right now. And so I just think, regardless 373 00:22:57,520 --> 00:23:00,560 Speaker 1: of who the leaders are, and regardless even of the 374 00:23:00,600 --> 00:23:04,040 Speaker 1: message given, there is a certain amount of inertia that 375 00:23:04,119 --> 00:23:07,600 Speaker 1: exists there where people you can only take them so far. 376 00:23:08,200 --> 00:23:10,879 Speaker 1: And yes, people want to enforce the immigration law, and 377 00:23:10,960 --> 00:23:13,960 Speaker 1: the people there at Ice strongly believe in the importance 378 00:23:13,960 --> 00:23:18,080 Speaker 1: of enforcing the immigration law. But there's an operational reality 379 00:23:18,119 --> 00:23:21,119 Speaker 1: there that they face every day and that they've seen 380 00:23:21,520 --> 00:23:24,600 Speaker 1: over the course of years that when you push things 381 00:23:24,640 --> 00:23:28,480 Speaker 1: too far, they know that then it becomes very difficult 382 00:23:28,520 --> 00:23:30,720 Speaker 1: to unwind that. And so they're just trying to get 383 00:23:30,760 --> 00:23:33,800 Speaker 1: an equilibrium where they can enforce the law as strictly 384 00:23:33,840 --> 00:23:38,200 Speaker 1: as they can while still maintaining other forms of order 385 00:23:38,280 --> 00:23:39,119 Speaker 1: in the society. 386 00:23:39,600 --> 00:23:44,600 Speaker 2: On another issue, Vice President JD. Vance yesterday advocated a 387 00:23:44,760 --> 00:23:48,520 Speaker 2: slow down in legal immigration. We have to get the 388 00:23:48,640 --> 00:23:52,520 Speaker 2: overall numbers way way down, but he didn't offer a 389 00:23:52,600 --> 00:23:53,280 Speaker 2: firm number. 390 00:23:53,680 --> 00:23:57,080 Speaker 1: I think people need to have a realistic understanding of this. 391 00:23:57,200 --> 00:23:59,520 Speaker 1: And this is something because I teach immigration law at 392 00:23:59,600 --> 00:24:03,040 Speaker 1: various law schools and that's my first class each semester. 393 00:24:03,160 --> 00:24:05,560 Speaker 1: As I tell people and I explain, and I say, 394 00:24:05,560 --> 00:24:08,440 Speaker 1: look in America right now, we have three hundred and 395 00:24:08,520 --> 00:24:12,560 Speaker 1: fifty million people. And each year, unless it's a year 396 00:24:12,600 --> 00:24:15,080 Speaker 1: like a COVID year where everything is out of control 397 00:24:15,119 --> 00:24:17,919 Speaker 1: and it's not a normal year, if you are just 398 00:24:18,119 --> 00:24:21,800 Speaker 1: running the course of things, you would notice each year 399 00:24:21,800 --> 00:24:24,960 Speaker 1: if you go to the Department of Homeland Security immigration statistics, 400 00:24:25,320 --> 00:24:29,280 Speaker 1: that one million or so. It fluctuates between about eight 401 00:24:29,359 --> 00:24:32,000 Speaker 1: hundred thousand and one point two million, but let's just 402 00:24:32,040 --> 00:24:35,040 Speaker 1: say one million for the purposes of this people a 403 00:24:35,160 --> 00:24:38,480 Speaker 1: year are given a green card, meaning the right to 404 00:24:39,040 --> 00:24:43,399 Speaker 1: permanently reside in the United States each year, and that 405 00:24:43,520 --> 00:24:45,760 Speaker 1: comes from a number of places. It comes from US 406 00:24:45,800 --> 00:24:50,080 Speaker 1: citizens marrying foreign nationals. That's the largest group by far, 407 00:24:50,280 --> 00:24:54,159 Speaker 1: that's about four hundred thousand people per year. It comes 408 00:24:54,200 --> 00:24:59,520 Speaker 1: from US citizens bringing in their parents who are foreign nationals, 409 00:24:59,520 --> 00:25:03,320 Speaker 1: and that happen. Happens because when people either marry a 410 00:25:03,440 --> 00:25:06,480 Speaker 1: US citizen and then they become a citizen one day, 411 00:25:06,960 --> 00:25:10,679 Speaker 1: or an employer sponsors them, which is a much smaller number, 412 00:25:11,000 --> 00:25:13,600 Speaker 1: but they then become a citizen one day, they can 413 00:25:13,640 --> 00:25:16,879 Speaker 1: then bring their parents. So that's another group. So those 414 00:25:17,040 --> 00:25:22,960 Speaker 1: parents and then any minor essentially step children. That So 415 00:25:23,040 --> 00:25:25,159 Speaker 1: let's say you marry a foreign national, if you're a 416 00:25:25,200 --> 00:25:27,600 Speaker 1: US citizen and that person had a child who was 417 00:25:27,720 --> 00:25:31,720 Speaker 1: under eighteen, that person can qualify also for a lawful 418 00:25:31,760 --> 00:25:35,439 Speaker 1: permanent resident status. So that group right there just that 419 00:25:35,560 --> 00:25:39,000 Speaker 1: group each year is about six hundred thousand people per year, 420 00:25:39,320 --> 00:25:42,520 Speaker 1: like clockwork, And so the question is will you get 421 00:25:42,600 --> 00:25:47,639 Speaker 1: rid of any of those individuals? And then between people 422 00:25:47,640 --> 00:25:50,879 Speaker 1: who come for high skilled work, which is about one 423 00:25:50,960 --> 00:25:55,320 Speaker 1: hundred and twenty thousand a year, plus another group which 424 00:25:55,359 --> 00:25:58,600 Speaker 1: is refugees, which the Trump administration has already zeroed out, 425 00:25:58,680 --> 00:26:00,720 Speaker 1: so that's gone, but it used to be about one 426 00:26:00,760 --> 00:26:04,399 Speaker 1: hundred thousand a year, and then assiles, which are people 427 00:26:04,760 --> 00:26:07,080 Speaker 1: who we didn't know were coming but showed up at 428 00:26:07,080 --> 00:26:10,000 Speaker 1: our doorstep. That was about one hundred thousand a year. 429 00:26:10,040 --> 00:26:13,320 Speaker 1: Now that's been zero about two So the Trump administration 430 00:26:13,480 --> 00:26:18,480 Speaker 1: can actually say it's cut two hundred thousand or so 431 00:26:18,640 --> 00:26:21,639 Speaker 1: already from that one million that you're gonna see next 432 00:26:21,720 --> 00:26:25,439 Speaker 1: year because you're not gonna have refugees or assilies. So 433 00:26:25,520 --> 00:26:28,040 Speaker 1: they can say that, but then there's a debate, Okay, 434 00:26:28,080 --> 00:26:30,480 Speaker 1: what about those other eight hundred thousand. Is that too 435 00:26:30,560 --> 00:26:33,919 Speaker 1: much or too little? And I think that's a debate 436 00:26:33,960 --> 00:26:36,840 Speaker 1: that people are having. But honestly, if you're if you 437 00:26:37,280 --> 00:26:40,080 Speaker 1: unless you're gonna say that a US citizen is not 438 00:26:40,200 --> 00:26:43,360 Speaker 1: allowed to marry a foreign national and live with them 439 00:26:43,400 --> 00:26:46,800 Speaker 1: here in America, most of your legal immigration is still 440 00:26:46,800 --> 00:26:50,679 Speaker 1: gonna be high because that number is the bulk of 441 00:26:50,720 --> 00:26:54,120 Speaker 1: what our immigration is each year. Is a US citizen 442 00:26:54,160 --> 00:26:55,360 Speaker 1: marrying a foreign national. 443 00:26:55,760 --> 00:26:59,040 Speaker 2: And first Lady Milania Trump brought her parents into the 444 00:26:59,119 --> 00:27:03,760 Speaker 2: United States from Slovenia and they were able to get 445 00:27:03,880 --> 00:27:08,800 Speaker 2: US citizenship through what's known as family based immigration, something 446 00:27:08,880 --> 00:27:13,640 Speaker 2: Trump himself has criticized and dubbed chain migration. So he's 447 00:27:13,640 --> 00:27:17,040 Speaker 2: a pleasure. Leon, Thanks so much. That's Leon Fresco of 448 00:27:17,119 --> 00:27:19,520 Speaker 2: Holland and Knight. And that's it for this edition of 449 00:27:19,560 --> 00:27:22,200 Speaker 2: The Bloomberg Law Show. Remember you can always get the 450 00:27:22,280 --> 00:27:25,480 Speaker 2: latest legal news on our Bloomberg Law Podcast. You can 451 00:27:25,520 --> 00:27:29,760 Speaker 2: find them on Apple Podcasts, Spotify, and at www dot 452 00:27:29,760 --> 00:27:33,960 Speaker 2: Bloomberg dot com, slash podcast Slash Law, and remember to 453 00:27:34,000 --> 00:27:37,040 Speaker 2: tune into The Bloomberg Law Show every weeknight at ten 454 00:27:37,119 --> 00:27:40,880 Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening 455 00:27:40,960 --> 00:27:41,639 Speaker 2: to Bloomberg