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

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Speaker 2: President Donald Trump's plan to send hundreds of troops to

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Speaker 2: Oregon and Illinois to counter protests against his immigration crackdown

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Speaker 2: faced two major tests today in separate courts, as state

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Speaker 2: officials continued to raise the alarm about the White House's

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Speaker 2: domestic use of the military, and there appeared to be

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Speaker 2: mixed reactions in the contentious hearings in San Francisco and Chicago.

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Speaker 2: A federal appeals court in San Francisco appeared to back

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Speaker 2: Trump's request to overturn a temporary order barring his deployment

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Speaker 2: of the National Guard to Portland, but a federal judge

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Speaker 2: in Chicago was critical of whether there was legal support

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Speaker 2: for sending troops into that city. My guest is immigration

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Speaker 2: law expert Leon Fresco, a partner at Hollanda Knight leont Teli,

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Speaker 2: tell us about the issue in the appellate court hearing

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Speaker 2: in San Francisco.

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Speaker 1: This case involved the Portland deployment of National Guard troops

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Speaker 1: at the Portland where the Trump administration was saying that

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Speaker 1: they needed those National Guard troops into Portland to guard

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Speaker 1: the federal ice facilities and the federal ice officers who

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Speaker 1: are engaging in their mission, and their argument is that

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Speaker 1: Portland is such a dangerous place that the Guard is

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Speaker 1: needed because their local officials are not sufficient to protect

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Speaker 1: the federal interests that are there in Portland trying to

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Speaker 1: enforce the immigration laws. And so there was a district

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Speaker 1: court opinion that enjoyed that use of National Guard for

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Speaker 1: that purpose and said that the Guard couldn't be used

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Speaker 1: for that purpose if it was in contravention to the

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Speaker 1: wishes of the State of Oregon, which is what happened

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Speaker 1: near the State of Oregon did not want those guards

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Speaker 1: being sent to Oregon, especially if it was going to

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Speaker 1: be done for the purposes of supplementing or augment and

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Speaker 1: immigration enforcement. So that's why they had filed the suit originally.

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Speaker 1: This case now went to the Ninth Circuit for a

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Speaker 1: stay of that order so that when it goes on

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Speaker 1: appeal for the merits that it be stayed so that

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Speaker 1: the National Guard could be deployed into Portland. And although

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Speaker 1: there's not a decision yet, it does look like at

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Speaker 1: the argument two of the Ninth Circuit judges who were

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Speaker 1: appointed by President Trump were of the belief that yes,

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Speaker 1: there could be a brightline area where you could be

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Speaker 1: deploying National Guard troops for improper purposes. But we couldn't

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Speaker 1: speculate upfront that that was going to happen, and that

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Speaker 1: if the Guard was going to be strictly deployed just

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Speaker 1: to guard the federal interest, that that, on its face

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Speaker 1: would it be a violation of the rules by which

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Speaker 1: you could deploy the National Guard. And so for that reason,

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Speaker 1: even though a decision not out, it looks like there

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Speaker 1: will be a decision that will say, hey, look, if

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Speaker 1: this is applied in an unconstitutional manner, come back to

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Speaker 1: us and tell us that. But on its face, we're

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Speaker 1: not going to say that it's unconstitutional to send National

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Speaker 1: Guard to Portland.

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Speaker 2: So what are the rules for sending in the National Guard?

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Speaker 2: Because the administration is argued in both cases that there's

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Speaker 2: an active threat of rebellion and that the federal government

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Speaker 2: can't carry out the law without the National Guard's assistance.

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Speaker 1: Well, there's various scenarios in which you can bring the

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Speaker 1: National Guard, and one would be if you thought there

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Speaker 1: was a rebellion going on, and there is certainly that

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Speaker 1: area of debate about whether the circumstances in those locations

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Speaker 1: are tantamount to a rebellion, and that's where in the

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Speaker 1: Chicago case there's sort of this argument going on there

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Speaker 1: about whether there's a rebellion or not. But there's also

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Speaker 1: a different part where it's just the Guard can be

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Speaker 1: deployed to guard federal property and to guard federal workers

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Speaker 1: and law enforcement people trying to do their job. So

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Speaker 1: under either of those two scenarios, the National Guard can

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Speaker 1: be deployed. And so the question is just the Trump

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Speaker 1: administration have sufficient evidence that that's all they're going to

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Speaker 1: be doing, or will they be crossing the line into

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Speaker 1: enforcement of civil laws, which the National Guard is not

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Speaker 1: permitted to do. And so that's where when you have

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Speaker 1: this ICE enforcement it becomes problematic because if the courts

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Speaker 1: start to think that the National Guard is basically part

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Speaker 1: and parcel of ICE enforcement, then that's unconstitutional and that's

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Speaker 1: not permitted. Whereas if the Trump administration can sort of

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Speaker 1: make this periphery type argument that no, they're not enforcing

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Speaker 1: immigration law, but they're protecting the ICE agents, because what

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Speaker 1: happens is whenever ICE tries to work in these sounds,

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Speaker 1: they're getting harassed, they're getting things thrown at them. They're

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Speaker 1: getting cars being driven into their cars and all kinds

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Speaker 1: of other violent acts that they need protection, then that

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Speaker 1: argument starts to have more salience than if they think

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Speaker 1: that what the National Guard is doing is not protecting

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Speaker 1: these ice agents but actually force multiplying immigration enforcement in

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Speaker 1: those areas.

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Speaker 2: The two trumpetpointees really grilled the lawyer for Oregon. Judge

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Speaker 2: Ryan Nelson, asked why Oregon, in the city of Portland,

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Speaker 2: should be able to second guess the president's determination about

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Speaker 2: the level of disruption the protests were causing. So the

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Speaker 2: president who's sitting in Washington is going to determine the

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Speaker 2: level of protests When a judge in Portland, a Trump appointee,

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Speaker 2: found that Trump's conclusions were not tethered to the facts.

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Speaker 1: I do think if there is the debate on what

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Speaker 1: the level of violence is in Portland, as opposed to

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Speaker 1: cabining it to protection of federal facilities and federal officers,

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Speaker 1: and that were instead talking about is there too much

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Speaker 1: of an insurrection going on supposedly in Portland or in Oregon,

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Speaker 1: that would then justify the National Guard being brought on

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Speaker 1: that basis to be able to just generally protect law

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Speaker 1: and order. Then I do think that argument if it

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Speaker 1: goes on Bank to the Ninth Circuit, because that argument

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Speaker 1: may prevail two to one in this panel, but if

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Speaker 1: it were to go on Bank to the Ninth Circuit,

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Speaker 1: it would probably be overturned. And then the Supreme Court's

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Speaker 1: going to have to decide what level of difference goes

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Speaker 1: to the president for this kind of larger law enforcement

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Speaker 1: sort of keeping the peace type of National Guard, And

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Speaker 1: that's going to be brand new law that we're going

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Speaker 1: to have to see what the Supreme Court does with

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Speaker 1: regard to these arguments that, wow, things have gotten so bad,

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Speaker 1: we need the National Guard to actually calm things down.

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Speaker 1: So they're not just going to be protecting federal facilities

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Speaker 1: and they're not just going to be protecting the ice officer,

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Speaker 1: but they're actually going to be protecting everybody because things

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Speaker 1: have gotten so bad. And so to the extent that

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Speaker 1: that Trump administration doesn't want a cabin what the Guard

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Speaker 1: is doing to just the federal protection, then they're going

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Speaker 1: to need to rely on this larger argument that the

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Speaker 1: president gets different for what the president means is the

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Speaker 1: threat level in that area. And then now it's going

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Speaker 1: to be for the courts to decide is the president

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Speaker 1: entitled to that difference and for how long of a

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Speaker 1: period of time, or does the state get that difference

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Speaker 1: since it's their national guard that's being put into service.

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Speaker 2: Because appellate courts are supposed to defer to the district

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Speaker 2: court judges as fact finders, but these two appellate judges

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Speaker 2: didn't seem to be doing that, didn't seem to be

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Speaker 2: crediting the district court judge at all.

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Speaker 1: Well, they may think that the district judge is right

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Speaker 1: on the facts, but that at the end of the day,

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Speaker 1: the district judge doesn't have any authority to make any

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Speaker 1: factual findings. If the decision they're going to issue is

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Speaker 1: that basically it's not cognitable that a state can come

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Speaker 1: in and sue and say we disagree with the president's

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Speaker 1: assessment of the threat level in the States. So if

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Speaker 1: that's really where they're going, then they're going to have

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Speaker 1: to figure out some lines that they're drawing in order

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Speaker 1: to not make that where the president can deploy the

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Speaker 1: National Guard for any purpose that the president wants. But

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Speaker 1: it's possible that this two to one panel may issue

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Speaker 1: a decision that says that that the President gets either

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Speaker 1: complete difference or almost complete difference to decide when to

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Speaker 1: deploy the guard. And then we'll have to see when

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Speaker 1: the und Bank panel of the Ninth Circuit word to intervene,

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Speaker 1: or perhaps the Supreme Court, what they would say about

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Speaker 1: their conclusion.

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Speaker 2: Oregon will probably be luckier if it's just the Bank panel.

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Speaker 2: And I just want to explain that on this panel

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Speaker 2: you had a two to one situation, two Trump appointees

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Speaker 2: and one Clinton appointee. Looking at all the judges on

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Speaker 2: the Ninth Circuit, there are thirteen Republican appointees and sixteen

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Speaker 2: Democratic appointees. So if there is an on bank hearing,

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Speaker 2: the odds are better for organ.

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Speaker 1: In certain courts, the entire court, meaning all of the

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Speaker 1: active judges actually sit there and would look at the case.

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Speaker 1: In the Ninth Circuit there's too many active judges and

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Speaker 1: so they actually also have a panel. It just happens

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Speaker 1: to have more judges in it. If they have a

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Speaker 1: panel of twelve, which is what their m Bank panels are,

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Speaker 1: then that twelve judge panel. We still don't know what

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Speaker 1: the takeaway is, but yes, it is more likely that

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Speaker 1: there will be a panel that contains fewer Trump appointed judges,

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Speaker 1: and even there, even if a judge was not appointed

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Speaker 1: by Trump but was appointed by a other Republican president,

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Speaker 1: sometimes even those judges have shown less deference to the

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Speaker 1: Trump administration than the judges that have been specifically appointed

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Speaker 1: by President Trump.

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Speaker 2: There was a hearing in Chicago today before a federal

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Speaker 2: judge about Trump's deployment of troops to Chicago. So it

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Speaker 2: seems like the lower court judges who are looking at

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Speaker 2: the facts on the ground have different opinions than the

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Speaker 2: appellate court judges in these situations.

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Speaker 3: Tell us about what's what the issue is there?

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Speaker 1: Correct? There? I mean it's the same argument again that

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Speaker 1: the president's determination about the cities whether they meet the

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Speaker 1: legal standard for bringing National Guard troops under federal control.

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Speaker 1: And again here there's two issues, which is are the

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Speaker 1: guardsmen going to only be protecting federal property and federal

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Speaker 1: agents or are they going to be stopping a violent insurrection?

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Speaker 1: And what the judge is saying in the Chicago case

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Speaker 1: is well, what are you doing? And so the judge

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Speaker 1: started asking a bunch of questions to the DOJ, which

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Speaker 1: I think was the correct way to do this, to

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Speaker 1: try to say which argument are you resting on are

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Speaker 1: you resting on this is only federal property, or are

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Speaker 1: you saying that the situation is so bad that you're

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Speaker 1: going to be doing other kinds of enforcement. And because

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Speaker 1: the DOJ attorney really I think probably didn't have a

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Speaker 1: answer on what the full mission was going to be

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Speaker 1: for these National Guard coming into Chicago, rightfully, couldn't sort

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Speaker 1: of give the most precise answers to all of these

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Speaker 1: hypothetical questions. And so the judge looks like the judge

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Speaker 1: is going to enjoin the National Guard, just like the

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Speaker 1: Portland District judge did, saying it looks like you're going

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Speaker 1: to be going beyond the federal protection situation. And because

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Speaker 1: of that, you haven't shown the fact that you need

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Speaker 1: to on the ground to be able to show that

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Speaker 1: you can deploy the Federal National Guard for any other

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Speaker 1: purpose here.

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Speaker 2: Yeah, I mean the judge, and this has happened in

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Speaker 2: other hearings, said she was troubled by what she described

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Speaker 2: as a disconnect between the official orders from the federal

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Speaker 2: government directing the activities of military troops in Chicago and

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Speaker 2: the public statements the rhetoric made by Trump about what

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Speaker 2: their duties in the city are. I mean, Trump keeps

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Speaker 2: talking about crime, and when the prosecutors get into court

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Speaker 2: they talk about how this is, you know, limited. So

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Speaker 2: the judge said, what I am troubled by at the

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Speaker 2: moment is when I try to nail down what of

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Speaker 2: those things that they will do, you don't really offer

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Speaker 2: a clear answer, probably because they don't have a clear answer, right.

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Speaker 1: I don't think the ny probably has a clear answer

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Speaker 1: because I do think the mission hasn't been defined with

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Speaker 1: the level of specificity that would give the attorney a

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Speaker 1: clear answer. And so for that reason, I think that

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Speaker 1: that's just an unfortunate situation for that specific attorney to

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Speaker 1: be in. But that's the reason why this judge is

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Speaker 1: then't going to say fine, then what you're trying to

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Speaker 1: do is you're trying to deploy the National Guard for

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Speaker 1: a broad purpose, not just for the federal purpose. And

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Speaker 1: since you're not willing to foreclose this and so because

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Speaker 1: of that, you haven't submitted enough factual basis that there's

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Speaker 1: enough chaos and insurrection going on that you need the

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Speaker 1: National Guard to come in to stop such conduct from

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Speaker 1: a curry.

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Speaker 2: And then we'll see what the Seventh Circuit says coming

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Speaker 2: up Next, we're going to talk about some other immigration issues,

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Speaker 2: including lawsuits over the high price tag Trump has put

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Speaker 2: on h One v.

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Speaker 3: Visus.

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Speaker 2: I'm Drew and Grasso, and you're listening to Bloomberg. Now

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Speaker 2: to the continuing legal saga of Kilmore Abrego Garcia, the

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Speaker 2: Salvadoran man deported in error to l Salvador last March

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Speaker 2: and then returned to the United States to face criminal

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Speaker 2: charges in Tennessee. Could he be released on Friday. I've

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Speaker 2: been talking to immigration attorney Leon Fresco of Holland and Knight.

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Speaker 3: Leon.

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Speaker 2: It's been about seven months since the case of Abrego

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Speaker 2: Garcia was in the headlines. Tell us where his case

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Speaker 2: stands right now.

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Speaker 1: So, in the Kilmar Abrego Garcia case, this was the

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Speaker 1: individual who got sent to El Salvador who had a

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Speaker 1: protection order that said that they couldn't be deported to

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Speaker 1: Al Savador specifically on the basis of gang violence, not

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Speaker 1: on the basis of detention in that Seacott facility, which

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Speaker 1: is the facility for terrorists that the President Bucella made

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Speaker 1: in El Savador. But nevertheless there was an order specifically

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Speaker 1: saying that Abrego Garcia couldn't be deported to El Salvador,

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Speaker 1: and nevertheless he was and then the question was was

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Speaker 1: he ever going to be brought back. He ended up

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Speaker 1: finally being brought back because there was an extradition on

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Speaker 1: human trafficking charges. The human trafficking charges judge led about

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Speaker 1: on bond that basically said, it doesn't look like there's

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Speaker 1: really a much of a case here for human trafficking.

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Speaker 1: So he was placed back into immigration detention to try

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Speaker 1: to undo the order that executed the removal to Alsavador

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Speaker 1: that said there's no more gang violence than Elsavador because

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Speaker 1: President Bukela has stopped and has actually put in this prison,

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Speaker 1: et cetera. And they did get an order that basically

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Speaker 1: said they could do this deportation, but it has to

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Speaker 1: be to a different country, and so Abraco Garcia has

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Speaker 1: actually stipulated, fine, I'll go to Costa Rica. And the

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Speaker 1: United States government's card position and is, no, we don't

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Speaker 1: want to send you to Costa Rica. We want to

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Speaker 1: send you to what was formerly known as Swaziland, which

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Speaker 1: is a little land mass inside of South Africa which

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Speaker 1: is now called Swatini, and that's where we want to

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Speaker 1: send you to, which there is case law called Zavidas

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Speaker 1: versus the United States, which says, once you're in that

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Speaker 1: situation where the government has said they want to deport

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Speaker 1: you to a certain location, if they can't show that

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Speaker 1: it's significantly likely to happen in the foreseeable future, they

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Speaker 1: have to let you out of detention. And so that's

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Speaker 1: the current fight is fine, you're not going to send

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Speaker 1: me to Costa Rica. You want to send me to Swaziland,

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Speaker 1: flash Swatini. How quickly do you plan on doing this?

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Speaker 1: Are you just going to keep me in detention for

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Speaker 1: the foreseeable future? And there's a hearing on Friday. If

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Speaker 1: the court doesn't get a date certain for this removal,

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Speaker 1: the court is probably going to let mister Abrego Garcia

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Speaker 1: out of detention again, which I think will very much

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Speaker 1: upset the Trump administration and then to have to make

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Speaker 1: some decisions. Do they just send him to Costa Rica

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Speaker 1: then or unclear what they'll be willing to do in

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Speaker 1: that situation.

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Speaker 2: Why would there be a problem or delay in sending

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Speaker 2: him to Swatini.

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Speaker 1: It's possible that the Swine government does want to accept

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Speaker 1: They have already accepted some people, but they may not

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Speaker 1: want to accept mister abrago Garcia specifically, or they may

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Speaker 1: be trying to figure out some plan for what they're

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Speaker 1: going to do with him when he arrives, and so

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Speaker 1: these reasons for delays are very unclear. But they're going

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Speaker 1: to have to come up with a date certain, that

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Speaker 1: is for a fact, so that if they don't have

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Speaker 1: a date certain, then the judge is probably going to

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Speaker 1: let out a brago Garcia on Friday.

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Speaker 2: He would be let out temporarily or premporarily until there's

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Speaker 2: a date they can place him immediately back in detention

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Speaker 2: if they can come up with a date for deportations,

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Speaker 2: that they could say, Okay, we had.

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Speaker 1: The travel document, we're now going to deport him on

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Speaker 1: October twenty first or something.

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Speaker 2: Leon How often does the government deport people to countries

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Speaker 2: where they have no connections at all.

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Speaker 1: So it's not unprecedented. Prior to the Trump administration, I

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Speaker 1: was involved in a very famous case when I was

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Speaker 1: in the Department of Justice where there was a Palestinian

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Speaker 1: terrorist who blew up a plane in Hawaii and he

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Speaker 1: actually got a plea deal, and in this plea deal,

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Speaker 1: he was only given twenty five years in prison because

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Speaker 1: he was supposed to turn in other terrorists, and he

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Speaker 1: actually didn't end up doing it, and so the twenty

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Speaker 1: five years ran out and there was no place to

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Speaker 1: deport him because Israel didn't want to take him. And

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Speaker 1: so the question is what were we going to do

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Speaker 1: with this person or were we just going to let

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Speaker 1: them out and start walking around the United States when

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Speaker 1: this person had blown up at an airplane And so

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Speaker 1: the US government made negotiations and actually got Mauritania to

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Speaker 1: take this individual. So this does happen in cases like this,

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Speaker 1: but the Trump administration is trying to deploy this in

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Speaker 1: a much broader fashion. They're sending people to Ghana, to Swatini,

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Speaker 1: to Libya, to El Salvador, to many other countries. And

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Speaker 1: they're actually having thesea negotiations with countries that are very

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Speaker 1: interested in having foreign students and other foreign nationals get

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Speaker 1: visas to come to America, and they're saying, fine, if

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Speaker 1: you want better treatment on that, you will have to

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Speaker 1: agree to accept people who're trying to deport from other countries.

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Speaker 1: And so some countries like Ghana have said yes and

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Speaker 1: other countries have said no. But it's going to be

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Speaker 1: very interesting moving forward. And by the way, the idea

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Speaker 1: for this is twofold. One is to be able to

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Speaker 1: execute deportations in cases where you can't currently do it,

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Speaker 1: So there's just the guns and bolts of it. But secondly,

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Speaker 1: it's also a massive deterrence where say you're from a

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Speaker 1: country like Cuba or China, and you say, oh, well,

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Speaker 1: there's no downside to coming to the US illegally because

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Speaker 1: China won't accept me or Cuba won't accept me. Well,

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Speaker 1: now the government can say, yeah, but how about if

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Speaker 1: we send you to Libya or South Sudan. You're not

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Speaker 1: going to like that too much, so don't try to

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Speaker 1: come here. So it's to give also that extra layer

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Speaker 1: of deterrent so that people won't come here thinking that

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Speaker 1: their country won't accept them back.

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Speaker 2: You know, we talked before about President Trump putting one

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Speaker 2: hundred thousand dollars fee on new h one B workers' visas,

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Speaker 2: and so a coalition of employers is suing. Isn't it

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Speaker 2: up to the federal government to set the fee?

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Speaker 1: So this is going to be a very interesting case.

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Speaker 1: It's a coalition of unions, universities, nursing companies, and professional organizations,

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Speaker 1: and what they're saying is that the way this fee

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Speaker 1: works is if you want to put in the fee,

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Speaker 1: you have to actually go through the regulatory process of

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Speaker 1: the Administrative Procedure Act and actually do the whole notice

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Speaker 1: in comment and do the year long regulatory process with

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Speaker 1: all the analysis on the economy and everything else. You

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Speaker 1: can't use the travel ban Authority. And so this is

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Speaker 1: going to be an argument because the Travel Ban Authority

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Speaker 1: says very specifically, the President can put any terms and

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Speaker 1: conditions the president wants on the entry of people into

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Speaker 1: the United States. But the H one B Statute says

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Speaker 1: that any changes to the H one B program has

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Speaker 1: to be done visa the regulation. And so there's two

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Speaker 1: statutes that literally conflict with one another, and the Court's

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Speaker 1: going to have to decide which one governs here.

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Speaker 2: And finally, we've also discussed before Venezuelan's temporary protected status,

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Speaker 2: and this seems to be in the category of the

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Speaker 2: lower courts rule one way and then the case gets

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Speaker 2: to the Supreme Court, the Supreme Court reverses. So the

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Speaker 2: Supreme Court is allowing Trump to lift the temporary protected

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Speaker 2: status of Venezuelans.

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Speaker 1: Correct. This has happened twice. Now, where what happened was

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Speaker 1: first there was a preliminary injunction, and in the preliminary injunction,

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Speaker 1: the court ruled the lower court. The district Court ruled

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Speaker 1: that the president could not get rid of temporary protected

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Speaker 1: status from Venezuelans because the idea was that the administration

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Speaker 1: didn't do the analysis of what was actually happening in

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Speaker 1: Venezuela and predetermined the outcome, and so it was not

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Speaker 1: a proper revocation of temporary protective status. The Supreme Court

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Speaker 1: put a stay on that temporary injunction, and so everyone thought, well,

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Speaker 1: that's over. The Venezuelans have lost their temporary protected status

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Speaker 1: and the story. Then the District Court said, well, that

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Speaker 1: stay was only of the temporary injunction, but now I'm

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Speaker 1: issuing a final injunction. And so I'm I'm that's bound

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Speaker 1: by that court stay, especially because the court didn't actually

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Speaker 1: explain it's what. They issued one of these one line

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Speaker 1: opinions lifting the injunction, saying, hey, we're staying the injunction.

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Speaker 1: So I don't know what the basis was, but maybe

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Speaker 1: they didn't like something in the temporary injunction. But now

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Speaker 1: I'm issuing a final injunction that is really looking at

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Speaker 1: the evidence of what was considered, so I have the

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Speaker 1: ability to do this again. So the court again said

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Speaker 1: the Venezuelans keep their temporary protected status. Everyone was happy

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Speaker 1: again in the Venezuelan community. But now the government appeals

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Speaker 1: it and then the Supreme Court issues the exact same

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Speaker 1: order again staying this protection. So now as of November,

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Speaker 1: the temporary protected status will be gone and all of

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Speaker 1: these Venezuelans, hundreds of thousands of them, will be an

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Speaker 1: illegal status subject to deportation. And it's going to be

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Speaker 1: very complicated. What's going to happen with all of these individuals?

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Speaker 2: Leon, Are there any other group groups of foreign nationals

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Speaker 2: who still have temporary protected status?

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Speaker 1: The only country that has temporary protected status that has

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Speaker 1: not been disturbed, interestingly enough, because it's actually what I

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Speaker 1: would argue the most stable because of who the president

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Speaker 1: is is El Salvador. But El Salvador obviously has the

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Speaker 1: president that most friendly, the President Trump, and it appears

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Speaker 1: that obviously some arrangement was made to keep the El

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Speaker 1: Salvadoran TPS available. So that's the one country that has

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Speaker 1: kept its temporary protective status.

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Speaker 2: That certainly seems odd. Thanks so much, Leon, As always

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Speaker 2: that's Leon Fresco, a partner at Honda Knight.

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Speaker 4: What you're sketching out for us is a potential disaster.

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Speaker 4: In other words, you're saying, if the candidate's going to

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Speaker 4: win by sixty five percent, no standing. But if the candidate,

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Speaker 4: you know, hopes to win by a dozen votes, and

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Speaker 4: there are places in the country where that happens over

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Speaker 4: and over again, then he has standing. But we're not

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Speaker 4: going to know that until we get very close to

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Speaker 4: the election, right, and so it's going to be in

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Speaker 4: the middle the most fraught time for the court to

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Speaker 4: get involved in electoral politics. That's when you say we

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Speaker 4: should jump in.

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Speaker 2: Chief Justice John Roberts painted a bleak picture of judges

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Speaker 2: having to make decisions close to an election about whether

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Speaker 2: a political candidate has the legal right to sue over

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Speaker 2: their states election laws based on the candidate's chances of

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Speaker 2: success at the ballot box. The Chief wasn't alone in

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Speaker 2: that assessment. A majority of conservative justices seem to feel

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Speaker 2: the same. Illinois Republican and Congressman Mike Bost is challenging

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Speaker 2: the state law that allows mail in ballots to be

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Speaker 2: counted if they're received up to two weeks later, the

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Speaker 2: Seventh Circuit throughout Boss case, finding that the veteran congressman

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Speaker 2: didn't have standing to sue because his claims of the

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Speaker 2: law hurting his chances were speculative at best. But the

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Speaker 2: conservative justices appeared open to allowing Boss's lawsuit to proceed.

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Speaker 2: They seemed skeptical about the idea that a candidate's vote

440
00:26:18,840 --> 00:26:22,480
Speaker 2: totals should affect their ability to sue and a court

441
00:26:22,520 --> 00:26:26,000
Speaker 2: making that decision. Here's Justice Neil Gorsuch.

442
00:26:26,600 --> 00:26:29,520
Speaker 5: And then along the way, is there something unseemly about

443
00:26:29,600 --> 00:26:35,919
Speaker 5: federal courts making prognostications about a candidate's chance of success

444
00:26:36,840 --> 00:26:40,560
Speaker 5: immediately before an election that itself might influence the election?

445
00:26:41,080 --> 00:26:44,800
Speaker 2: But the liberal justice is questioned whether Bost had shown

446
00:26:44,920 --> 00:26:48,280
Speaker 2: evidence that he was harmed by the law. Justice Elena

447
00:26:48,359 --> 00:26:52,560
Speaker 2: Kagan told the Assistant Solicitor General Michael Talent that it

448
00:26:52,600 --> 00:26:56,040
Speaker 2: seemed like the suit was one in search of a problem.

449
00:26:56,359 --> 00:26:57,960
Speaker 6: I mean, I guess I just sort of think, like,

450
00:26:58,200 --> 00:26:59,520
Speaker 6: what's the problem here?

451
00:27:00,119 --> 00:27:03,159
Speaker 2: The problem here and what our rule gets to is

452
00:27:03,160 --> 00:27:06,000
Speaker 2: the fact that candidates are forced to gamble that these

453
00:27:06,040 --> 00:27:08,760
Speaker 2: ballots are going to affect the outcome of their elections.

454
00:27:08,920 --> 00:27:12,080
Speaker 6: I don't think we've ever actually asked the RNC or

455
00:27:12,080 --> 00:27:15,040
Speaker 6: the DNC to do anything like that. What we've asked

456
00:27:15,040 --> 00:27:17,640
Speaker 6: the parties to do is to And this is why

457
00:27:17,680 --> 00:27:20,800
Speaker 6: you don't get these cases thrown out on standing grounds,

458
00:27:21,160 --> 00:27:24,600
Speaker 6: because there are perfectly easy ways for a party to

459
00:27:24,640 --> 00:27:27,120
Speaker 6: say why a new rule is going to harm them

460
00:27:27,119 --> 00:27:28,240
Speaker 6: in the electoral game.

461
00:27:28,760 --> 00:27:32,800
Speaker 2: Illinois is among eighteen states and the District of Columbia

462
00:27:32,840 --> 00:27:37,160
Speaker 2: that accept male ballots received after election day as long

463
00:27:37,200 --> 00:27:40,879
Speaker 2: as they're postmarked honor before that date. Joining me is

464
00:27:40,920 --> 00:27:45,119
Speaker 2: elections law expert Richard Brofalt, a professor at Columbia Law School.

465
00:27:45,880 --> 00:27:48,240
Speaker 2: Rich tell us about boss lawsuit.

466
00:27:49,240 --> 00:27:53,080
Speaker 7: So, in this case, Congress from Boston's challenging Illinois's law

467
00:27:53,160 --> 00:27:56,600
Speaker 7: that permits mail in ballots to be counted up to

468
00:27:56,680 --> 00:27:59,800
Speaker 7: two weeks after election day, provided that they are postmarked

469
00:28:00,200 --> 00:28:03,760
Speaker 7: of election day basically allows local ports of elections to

470
00:28:03,960 --> 00:28:07,240
Speaker 7: count late received ballots provided that they were actually mailed

471
00:28:07,440 --> 00:28:09,960
Speaker 7: as of election day. His claim is that the respect

472
00:28:10,000 --> 00:28:12,800
Speaker 7: to a congressional election, this violates the federal law that

473
00:28:12,840 --> 00:28:15,560
Speaker 7: says that we have a single election day, and that's

474
00:28:15,600 --> 00:28:16,960
Speaker 7: the second Tuesday in November.

475
00:28:17,320 --> 00:28:20,560
Speaker 2: A lower court found he didn't have standing to sue

476
00:28:20,600 --> 00:28:22,840
Speaker 2: tell us about the lower court's decision.

477
00:28:23,200 --> 00:28:26,960
Speaker 7: Right, This was the lower court in Illinois, where he's from. Basically,

478
00:28:27,000 --> 00:28:29,720
Speaker 7: he did not claim that this was going to cost

479
00:28:29,760 --> 00:28:33,359
Speaker 7: him the election. He basically claimed that this could affect

480
00:28:33,400 --> 00:28:36,360
Speaker 7: his share of the vote and that it also costs

481
00:28:36,520 --> 00:28:39,840
Speaker 7: his campaign some money to keep staff going to monitor

482
00:28:39,920 --> 00:28:42,000
Speaker 7: the lead counting of the ballots. But he didn't make

483
00:28:42,040 --> 00:28:44,680
Speaker 7: the argument that he was likely to lose, that he

484
00:28:44,720 --> 00:28:47,040
Speaker 7: had the essential risk of losing his election because of this.

485
00:28:47,240 --> 00:28:49,440
Speaker 7: So the lower court and actually the Court of Appeals

486
00:28:49,440 --> 00:28:52,480
Speaker 7: and the seven Circuits found that he didn't have standing.

487
00:28:52,760 --> 00:28:56,680
Speaker 7: That standing generally requires that you make an allegation of harm,

488
00:28:56,880 --> 00:28:59,160
Speaker 7: and they felt he had not alleged any harm, which

489
00:28:59,240 --> 00:29:00,400
Speaker 7: is to say losing election.

490
00:29:00,800 --> 00:29:03,160
Speaker 3: He won by like seventy five percent of the vote.

491
00:29:03,280 --> 00:29:06,200
Speaker 7: Right, And he's an eight or ten term member of Congress.

492
00:29:06,200 --> 00:29:08,200
Speaker 7: And this law in Illinois been on the books now

493
00:29:08,240 --> 00:29:10,840
Speaker 7: for quite some time. So he's run and won at

494
00:29:10,920 --> 00:29:14,200
Speaker 7: least a half dozen, possibly ten elections under this rule.

495
00:29:14,680 --> 00:29:16,840
Speaker 3: What's the threshold legal question here?

496
00:29:17,480 --> 00:29:19,320
Speaker 7: Well, the question is whether we as standing. I mean,

497
00:29:19,360 --> 00:29:21,720
Speaker 7: this case is being read against the backdrop of the

498
00:29:21,840 --> 00:29:24,960
Speaker 7: challenge to abs and de ballots. The ultimate merits question

499
00:29:25,040 --> 00:29:28,400
Speaker 7: of whether or not it violates federal law for stakes

500
00:29:28,400 --> 00:29:31,320
Speaker 7: to continue to count and nail in ballots after election

501
00:29:31,400 --> 00:29:34,360
Speaker 7: day provided their postmark before. Indeed, there's a decision out

502
00:29:34,360 --> 00:29:36,800
Speaker 7: of the Fifth Circuit that involve the Mississippi that says

503
00:29:36,840 --> 00:29:39,240
Speaker 7: it does violate the law. This is ultimately going to

504
00:29:39,240 --> 00:29:41,600
Speaker 7: be about that. But the question before the court of

505
00:29:41,680 --> 00:29:45,440
Speaker 7: this time is standing. What are the conditions wherein a

506
00:29:45,560 --> 00:29:49,440
Speaker 7: candidates standing to challenge an election law before the election

507
00:29:50,200 --> 00:29:53,080
Speaker 7: and Congress and Boast and his lawyer are basically arguing

508
00:29:53,120 --> 00:29:56,360
Speaker 7: that the fact that he is a candidate inherently gives

509
00:29:56,400 --> 00:29:59,960
Speaker 7: him standing, that candidates by definition have standing to challenge

510
00:30:00,320 --> 00:30:03,480
Speaker 7: the laws that govern the running of elections. He also

511
00:30:03,520 --> 00:30:06,160
Speaker 7: has some backup arguments, but that's in some sense. His

512
00:30:06,400 --> 00:30:09,000
Speaker 7: argument Number one is he is a candidate, therefore he

513
00:30:09,080 --> 00:30:09,600
Speaker 7: is standing.

514
00:30:09,800 --> 00:30:11,520
Speaker 3: And what is Illinois arguing?

515
00:30:11,960 --> 00:30:15,880
Speaker 7: Illinois arguing that under basic standing doctrine General Supreme Court

516
00:30:15,920 --> 00:30:18,680
Speaker 7: standing doctrine, you have to make an allegation that there's

517
00:30:18,720 --> 00:30:21,200
Speaker 7: a substantial risk of harm and that he hasn't argued

518
00:30:21,240 --> 00:30:24,120
Speaker 7: that he hasn't shown that this is likely to cost

519
00:30:24,160 --> 00:30:27,400
Speaker 7: him his election. And therefore that that he doesn't understanding

520
00:30:27,560 --> 00:30:30,160
Speaker 7: that he has an alleged that this is actually hurting him.

521
00:30:30,720 --> 00:30:36,960
Speaker 2: Many of the several many majority of the conservative justices

522
00:30:37,480 --> 00:30:41,560
Speaker 2: seem to be signaling support for bost Why.

523
00:30:42,000 --> 00:30:44,840
Speaker 7: That was my reading of the argument. And there is

524
00:30:44,880 --> 00:30:48,040
Speaker 7: one pretty good argument on his side, which is, although

525
00:30:48,520 --> 00:30:51,400
Speaker 7: it's not clear how it fits with traditional standing doctrine,

526
00:30:51,720 --> 00:30:54,160
Speaker 7: which is it's good to get these challenges out of

527
00:30:54,200 --> 00:30:57,520
Speaker 7: the way for the election. It's better to have this

528
00:30:57,680 --> 00:31:00,600
Speaker 7: issue of whether or not late received that de ballast

529
00:31:00,600 --> 00:31:04,480
Speaker 7: can be counted resolved a year before the election, since

530
00:31:04,680 --> 00:31:07,520
Speaker 7: after the election when everyone might know that it could

531
00:31:07,520 --> 00:31:10,600
Speaker 7: actually affect the outcome. So I think as a general rule,

532
00:31:10,960 --> 00:31:14,880
Speaker 7: there's broad agreement that challenges to election laws ought to

533
00:31:14,880 --> 00:31:18,600
Speaker 7: be resolved outside the context of a current election, and

534
00:31:18,640 --> 00:31:20,960
Speaker 7: I think that's what they were largely reacting to.

535
00:31:21,320 --> 00:31:24,240
Speaker 2: Several of the justices. I think the Chief Justice and

536
00:31:24,400 --> 00:31:29,800
Speaker 2: Justice Kavanaugh were talking about how requiring candidates to show

537
00:31:30,040 --> 00:31:34,640
Speaker 2: that a new voting rule created risks would put judges

538
00:31:34,680 --> 00:31:36,200
Speaker 2: in the prediction business.

539
00:31:36,440 --> 00:31:39,520
Speaker 7: Yeah. I mean, again, the state's argument is he hasn't

540
00:31:39,520 --> 00:31:41,920
Speaker 7: shown that he's having a risk of harm. He's been

541
00:31:41,960 --> 00:31:45,040
Speaker 7: elected and re elected overwhelmingly in his district many times.

542
00:31:45,600 --> 00:31:47,400
Speaker 7: And the state was arguing, he's going to make some

543
00:31:47,480 --> 00:31:50,880
Speaker 7: claim consistent with general principles of standing law, that this

544
00:31:51,080 --> 00:31:54,040
Speaker 7: law creates a risk of laws for him, risk of harm.

545
00:31:54,360 --> 00:31:57,440
Speaker 7: But as you say, the Chief Justice Kavanaugh was saying, well,

546
00:31:57,440 --> 00:31:59,719
Speaker 7: that means that you're going to require judges to make

547
00:31:59,720 --> 00:32:02,400
Speaker 7: a gain as as to whether he's a shoe in

548
00:32:02,400 --> 00:32:05,400
Speaker 7: in which case he doesn't have standing, or he's a

549
00:32:05,600 --> 00:32:07,760
Speaker 7: likely winner but there's a chance he might lose in

550
00:32:07,880 --> 00:32:10,200
Speaker 7: therefore he has. It's dating and then even the question

551
00:32:10,280 --> 00:32:13,200
Speaker 7: of well what about if you're bound to lose, if

552
00:32:13,200 --> 00:32:16,160
Speaker 7: you're from a minor party, you're a party that always

553
00:32:16,200 --> 00:32:18,800
Speaker 7: loses this district. Does that mean you can't see either

554
00:32:18,840 --> 00:32:21,760
Speaker 7: because you can't share you're any worse off because you're

555
00:32:22,240 --> 00:32:24,600
Speaker 7: you're going to go from five percent to four percent,

556
00:32:25,040 --> 00:32:26,640
Speaker 7: or a converse that you're going to go from ninety

557
00:32:26,680 --> 00:32:29,920
Speaker 7: percent eighty five percent. They were saying that the state's

558
00:32:30,000 --> 00:32:33,360
Speaker 7: standard it basically invites judges to get into this kind

559
00:32:33,360 --> 00:32:35,840
Speaker 7: of political predictions, which they shouldn't be doing.

560
00:32:36,280 --> 00:32:36,360
Speaker 5: So.

561
00:32:36,440 --> 00:32:42,720
Speaker 2: The liberal justices seemed skeptical of boss claims, and Justice

562
00:32:42,800 --> 00:32:45,400
Speaker 2: Kagan said, I have a sense this whole suit's a

563
00:32:45,400 --> 00:32:48,680
Speaker 2: little bit in search of a problem. They're perfectly easy

564
00:32:48,720 --> 00:32:51,080
Speaker 2: ways for a party to say why a new rule

565
00:32:51,160 --> 00:32:53,320
Speaker 2: is going to harm them in the electoral game, So

566
00:32:53,560 --> 00:32:54,520
Speaker 2: let the party do it.

567
00:32:54,920 --> 00:32:57,000
Speaker 7: That was herview. Herview was that in fact, parties have

568
00:32:57,080 --> 00:33:00,440
Speaker 7: been ringing these cases, and it's unclear why the National

569
00:33:00,440 --> 00:33:03,400
Speaker 7: Committee itself didn't bring the case or the Illinois Republican Committee.

570
00:33:03,400 --> 00:33:06,880
Speaker 7: In some ways, the best argument for boss position is

571
00:33:06,920 --> 00:33:10,280
Speaker 7: that it's a good idea to get these cases resolved early.

572
00:33:10,760 --> 00:33:13,560
Speaker 7: Her response is that's fine, but you didn't need him

573
00:33:13,600 --> 00:33:15,680
Speaker 7: to bring the suit. The Republican Party could have brought

574
00:33:15,680 --> 00:33:19,479
Speaker 7: the suit, and the liberals, I think had some concern

575
00:33:19,520 --> 00:33:23,240
Speaker 7: about how does this fit in with traditional standing doctrine.

576
00:33:23,880 --> 00:33:26,200
Speaker 7: Kagan is mainly the least hostile. It seemed to me

577
00:33:26,280 --> 00:33:29,080
Speaker 7: she was looking for a way to allow the case

578
00:33:29,240 --> 00:33:32,160
Speaker 7: to find standing, although maybe not on the same terms

579
00:33:32,600 --> 00:33:36,040
Speaker 7: as a Boss argument. She recognized the power of the

580
00:33:36,160 --> 00:33:39,320
Speaker 7: argument that there should be pre election litigation of this,

581
00:33:39,800 --> 00:33:42,880
Speaker 7: but she, like the other liberals, were skeptical didn't quite

582
00:33:42,880 --> 00:33:45,880
Speaker 7: see how this fit into traditional standing rules.

583
00:33:46,120 --> 00:33:49,720
Speaker 2: Is there a fear that ruling for bost would open

584
00:33:49,760 --> 00:33:54,240
Speaker 2: the floodgates to challenges of all sorts of state election rules.

585
00:33:54,840 --> 00:33:57,600
Speaker 7: That was the argument that the state raised that right,

586
00:33:57,640 --> 00:34:00,440
Speaker 7: that this means unless there's a real standing, lest there's

587
00:34:00,440 --> 00:34:04,080
Speaker 7: a real serious risk of injury, anybody could bring any

588
00:34:04,120 --> 00:34:07,520
Speaker 7: lawsuit that this basically opens itself up to an effect

589
00:34:07,560 --> 00:34:10,719
Speaker 7: open ended litigation. There's something to that. On the other hand,

590
00:34:10,760 --> 00:34:14,120
Speaker 7: as thinking Roberts are taking some these suits are being

591
00:34:14,120 --> 00:34:17,480
Speaker 7: brought anyway, and there's a lot to be said for

592
00:34:17,520 --> 00:34:20,280
Speaker 7: the argument let's have the suit decided before the election,

593
00:34:20,640 --> 00:34:23,760
Speaker 7: rather than in the heat of the election or after

594
00:34:23,800 --> 00:34:24,280
Speaker 7: the election.

595
00:34:24,840 --> 00:34:27,719
Speaker 2: So there were some unusual alliances here. The League of

596
00:34:27,760 --> 00:34:32,760
Speaker 2: Women Voters and the ACLU, among others, filed a brief

597
00:34:32,920 --> 00:34:37,320
Speaker 2: in support of boss right to bring this legal challenge.

598
00:34:37,719 --> 00:34:40,360
Speaker 7: That's right, and it's on that theory. I suspect that

599
00:34:40,400 --> 00:34:44,120
Speaker 7: they would be against his position on the merits about

600
00:34:44,160 --> 00:34:47,960
Speaker 7: whether or not federal law prohibits accounting of late received

601
00:34:48,280 --> 00:34:50,440
Speaker 7: mail in ballots, But I think they agree with the

602
00:34:50,480 --> 00:34:54,120
Speaker 7: idea that it's good to get these questions resolved early.

603
00:34:54,480 --> 00:34:57,799
Speaker 7: It's good to get these questions resolved before the votes

604
00:34:57,840 --> 00:34:58,840
Speaker 7: have actually been cast.

605
00:34:59,360 --> 00:35:03,560
Speaker 2: Trump has been vociferous about mail in balloting leading to fraud,

606
00:35:03,600 --> 00:35:08,480
Speaker 2: et cetera. And there are several lawsuits brought by allies

607
00:35:08,520 --> 00:35:12,200
Speaker 2: of Trump questioning the guidelines in different states around mail

608
00:35:12,239 --> 00:35:17,680
Speaker 2: in ballots. Will this decision impact those efforts to stop

609
00:35:17,880 --> 00:35:21,200
Speaker 2: the practice of states counting mail in ballots after election day?

610
00:35:21,920 --> 00:35:26,640
Speaker 7: Assuming that Bust wins, it will move that issue one

611
00:35:26,719 --> 00:35:30,760
Speaker 7: step forward to judicial resolution, although I believe there's already

612
00:35:30,760 --> 00:35:35,280
Speaker 7: a case in which a lower court found that late counting. Again,

613
00:35:35,440 --> 00:35:39,279
Speaker 7: it's post election day counting of ballots mailed in by

614
00:35:39,320 --> 00:35:41,879
Speaker 7: election day. At least one lower court has said that

615
00:35:41,880 --> 00:35:45,840
Speaker 7: that does violate the federal law setting a single national

616
00:35:45,920 --> 00:35:49,440
Speaker 7: election day. Again, that's only relevant as to federal elections.

617
00:35:49,600 --> 00:35:51,440
Speaker 7: So my guess is, one way or the other, we're

618
00:35:51,440 --> 00:35:54,479
Speaker 7: going to have this issue for the Supreme Court very soon.

619
00:35:54,760 --> 00:35:57,160
Speaker 7: I guess as that issue is going to be resolved,

620
00:35:57,160 --> 00:35:58,640
Speaker 7: whether or not he wins this case.

621
00:35:59,080 --> 00:36:02,760
Speaker 2: Thanks so much, rich That's Professor Richard Ruffald of Columbia

622
00:36:02,840 --> 00:36:03,440
Speaker 2: Law School.

623
00:36:04,120 --> 00:36:06,440
Speaker 3: And that's it for this edition of the Bloomberg Law Show.

624
00:36:06,760 --> 00:36:09,120
Speaker 2: Remember you can always get the latest legal news on

625
00:36:09,160 --> 00:36:13,440
Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

626
00:36:13,640 --> 00:36:18,960
Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law.

627
00:36:19,080 --> 00:36:21,040
Speaker 3: And remember to tune into The Bloomberg.

628
00:36:20,680 --> 00:36:24,080
Speaker 2: Law Show every weeknight at ten pm Wall Street Time.

629
00:36:24,640 --> 00:36:27,360
Speaker 2: I'm June Grosso and you're listening to Bloomberg