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

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Speaker 2: The Supreme Court will not force West Point to drop

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Speaker 2: its consideration of race and admissions, at least for now.

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Speaker 2: On Friday, with a two sentence unsigned order and no

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Speaker 2: public descents, the Justices turned down the group that won

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Speaker 2: the blockbuster decision last year banning affirmative action in colleges

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Speaker 2: and universities. The Court said, quote, the record before this

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Speaker 2: Court is underdeveloped, and this order should not be construed

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Speaker 2: as expressing any view on the merits of the constitutional question.

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Speaker 2: My guest is Audrey Anderson, head of the higher education

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Speaker 2: practice at bass Berry and Simms. Audrey start by reminding

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Speaker 2: us about that affirmative action decision and the footnote that

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Speaker 2: the Chief Justice dropped.

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Speaker 3: Sure in the case against Harvard and the University of

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Speaker 3: North Carolina at Chapel Hill, the Supreme Court held that

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Speaker 3: colleges and universities could not use race and admissions where

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Speaker 3: they were doing so for the educational benefits of a

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Speaker 3: diverse student body. In that case, though, they dropped a

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Speaker 3: footnote in the decision saying that what we're doing today

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Speaker 3: doesn't say anything about the use of race in our

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Speaker 3: nation's military academies, because the military academies may have potentially

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Speaker 3: distinct interests from the civilian colleges and universities. And they

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Speaker 3: dropped that footnote because the United States had filed an

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Speaker 3: amicas brief saying that they used race as a factor

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Speaker 3: in admitting students to the military academies, and they did

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Speaker 3: so for all the reasons that civilian colleges and universities did.

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Speaker 3: But then in addition to that, the military academies also

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Speaker 3: had additional national security based interests that supported their use

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Speaker 3: of race. So the court said, look, in this case

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Speaker 3: against UNC and Harvard, we're not ruling on any of

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Speaker 3: those different interests that the military academies might have. So

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Speaker 3: unlike all the civilian college and universities, there isn't one

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Speaker 3: of them that now says that they are using race

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Speaker 3: as a factor in admissions. Everybody stopped. But at West

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Speaker 3: Point and at the Naval Academy, they still say that

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Speaker 3: we're going to use race and admissions.

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Speaker 2: Do we know exactly how they use race and admissions?

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Speaker 3: From the filings in the court cases that are pending

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Speaker 3: right now, we can see how they use race and admissions.

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Speaker 3: I'm not as familiar with how the Naval Academy uses race,

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Speaker 3: But for West Point, the papers show us that it

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Speaker 3: is done in a different way than at civil colleges

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Speaker 3: and universities. And that's because you get into West Point

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Speaker 3: in a different way than you get into a usual

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Speaker 3: college or university. Almost everybody who gets into West Point

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Speaker 3: gets in through a nomination from a member of Congress.

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Speaker 3: And what West Point says is that for those applicants

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Speaker 3: who get in through a nomination from a member of Congress,

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Speaker 3: there's no consideration of race at all in those applications.

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Speaker 3: They get scored through something called the whole candidate score

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Speaker 3: that does not take race into account. However, after those

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Speaker 3: applicants are admitted, there are some additional spaces left in

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Speaker 3: the class. First, I can tell the papers haven't told

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Speaker 3: us how many spaces in the class are still open.

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Speaker 3: After that, and then there are a couple of buckets,

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Speaker 3: one called additional Applicants bucket, which is for people who

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Speaker 3: were nominated by a member of Congress but didn't get

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Speaker 3: in through that route, so you can get in that way.

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Speaker 3: Those applicants are considered by race. Also, the superintendent of

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Speaker 3: the Academy can nominate people to be admitted to the academy,

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Speaker 3: so those folks get in with race being considered also.

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Speaker 3: And then there's this third process that is the analog

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Speaker 3: to early decision at a civilian university, which is called

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Speaker 3: a letter of acceptance. So applicants can apply for a

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Speaker 3: letter of acceptance kind of at the front end of

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Speaker 3: the process. And if you get a letter of acceptance

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Speaker 3: early on, but then for some reason you don't get

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Speaker 3: in through the regular process of getting in through a

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Speaker 3: member of Congress, west Point says we will find a

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Speaker 3: spot for you. It sounds to me like kind of

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Speaker 3: like a guarantee in handing out those letters of acceptance

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Speaker 3: they also consider race.

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Speaker 2: This suit was brought against West Point by Students for

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Speaker 2: Fair Admissions. That's the group behind all these lawsuits challenging

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Speaker 2: affirmative action in colleges and universities. And in reaction to

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Speaker 2: this decision, the group issued a statement, and it seemed

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Speaker 2: to me they were misinterpreting the Chief Justice's footnote. They

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Speaker 2: said the Supreme Court didn't address military academies in that

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Speaker 2: decision only because the Court didn't know how they used race.

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Speaker 2: That's not what the Chief Justice said, is it?

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Speaker 3: No, it's not. I think that they're selling the court short.

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Speaker 3: I think the court was more talking about we're not

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Speaker 3: discussing these because the military academies are putting forth a

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Speaker 3: different interest, a different purpose for using race. So I

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Speaker 3: think there's two things the courts didn't know. First of all,

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Speaker 3: we need to look at this whatever different interest the

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Speaker 3: military is putting forward. They're saying, yeah, we have the

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Speaker 3: same educational interest everybody else has, but we also have

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Speaker 3: a national security based interest that requires us to use race.

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Speaker 3: I think that's what they were really talking about when

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Speaker 3: they talk about potentially distinct legal interests. So it's does

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Speaker 3: the military have a different compelling interest that supports the

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Speaker 3: use of race? And then the second part then is

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Speaker 3: are they using it in a narrowly tailored way, which

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Speaker 3: is what SFFA is talking about. They didn't know how

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Speaker 3: they were using race.

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Speaker 2: So students for Fair Admissions ask for an injunction, and

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Speaker 2: the Supreme Court said no in an order, and it's

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Speaker 2: sort of uncommon. There was a two sentence statement. It said,

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Speaker 2: the record before this Court is underdeveloped, and this order

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Speaker 2: should not be construed as expressing any of you on

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Speaker 2: the merits of the constitutional question. There were no public descents,

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Speaker 2: not even from you know, the super conservative justices who

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Speaker 2: have long opposed affirmative action. And even though they say,

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Speaker 2: don't construe this in any way, we still try to

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Speaker 2: look behind it. So what do you make of their statement?

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Speaker 3: Well, what I make of their statement is that, but

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Speaker 3: if the whole court had not agreed to make that statement,

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Speaker 3: that we're not saying anything on the merits of the

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Speaker 3: constitutional question, you would have had some of the more

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Speaker 3: conservative members of the Court dissenting saying we need to

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Speaker 3: put an injunction in place right now because this is

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Speaker 3: so clearly unconstitutional. Didn't you read our opinion? That's how

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Speaker 3: I read that. I mean, I think you also have

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Speaker 3: to look at you in the very aggressive litigation position

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Speaker 3: that Students for Fair Admissions took in this case, that

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Speaker 3: once their injunction was denied by the district court, they

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Speaker 3: filed for emergency injunctive relief from the Second Circuit. And

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Speaker 3: then even before the Second Circuit ruled, and not even

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Speaker 3: two weeks after oral argument at the Second Circuit, they

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Speaker 3: filed their motion for emergency injunctive relief before the Supreme Court,

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Speaker 3: saying it is so urgent that you take action that

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Speaker 3: you need to take action even before the Court of

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Speaker 3: Appeals can rule on this. So they were going with

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Speaker 3: a very very aggressive position in this case and making,

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Speaker 3: you know, an argument that, oh, it is so clear,

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Speaker 3: we don't even need any factual development. And for somebody

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Speaker 3: who just basically believes that there is a color blind constitution,

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Speaker 3: that's probably a very appealing argument. So that's what I

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Speaker 3: think is going on there.

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Speaker 2: I mean, they've been aggressive, but their cases have been

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Speaker 2: going on for years and years and years. Why do

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Speaker 2: you think there were so aggressive in this instance.

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Speaker 3: Well, I think they're so aggressive partly because they really

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Speaker 3: believe in their in their argument, and they honestly believe

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Speaker 3: that white people are being hurt by not being able

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Speaker 3: to go to West Point. I do believe that that

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Speaker 3: is part of what is motivating them. But I think

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Speaker 3: that they are also they are hoping to get as

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Speaker 3: much out of the Harvard and UNC decision as they

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Speaker 3: possibly can. They got a big win there, and they're

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Speaker 3: kind of saying, well, let's see just how much we

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Speaker 3: can get out of it. Maybe we can get out

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Speaker 3: of it an injunction immediately to stop West Point. So

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Speaker 3: I think that the really interesting question that I haven't

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Speaker 3: figured out an answer to and it could because I

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Speaker 3: just haven't really dived into all the details of the

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Speaker 3: Naval Academy case. Is that their strategy in the Naval

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Speaker 3: Academy case is quite different. They lost at the District

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Speaker 3: Court for very similar reasons. The district Court said, we

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Speaker 3: don't have enough facts here. In order to do strict scrutiny,

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Speaker 3: we really need a factual record to scrutinize, and at

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Speaker 3: this early stage, with no discovery, with no exchange of information,

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Speaker 3: we don't have that factual record that we can scrutinize.

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Speaker 3: So we've got to get some facts before we can

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Speaker 3: do strict scrutiny. And on that one, the District Court

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Speaker 3: ruled and Students for Fair Admissions has not appealed, no

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Speaker 3: less gone for an emergency injunction. They're just letting the

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Speaker 3: case play out, as often happens in litigation. So they've

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Speaker 3: started discovery in that matter and have a trial set

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Speaker 3: for the fall. So it's really interesting to me. I

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Speaker 3: don't know why they treated the Naval Academy case differently

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Speaker 3: than the West Point case.

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Speaker 2: And the West Point case now is back on the

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Speaker 2: ordinary track.

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Speaker 3: Well, no, because they still have an appeal pending before

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Speaker 3: the Second Circuit. So that case now, it kind of

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Speaker 3: ironically will likely be slowed down because the district Court

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Speaker 3: probably won't do anything with it until the Second Circuit rules.

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Speaker 3: And all the Second Circuit has done now is to

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Speaker 3: say we're denying your requests for immediate relief. Said, hey,

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Speaker 3: Second Circuit, while you're deciding our appeal, you need to

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Speaker 3: enter an injunction right now and then decide the appeal.

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Speaker 3: So the Second Circuits said, okay, well, we've got this appeal,

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Speaker 3: but we're not going to give you immediate relief while

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Speaker 3: we're deciding it. We're going to decide the appeal now.

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Speaker 3: So they still have to decide the appeal in the

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Speaker 3: Second Circuit, So that's going to slow them down a

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Speaker 3: little bit. In the West Point case.

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Speaker 2: How have universities been dealing with the Supreme Court's affirmative

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Speaker 2: action decision? Have they been considering race holistically?

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Speaker 3: No one is saying that they're considering race anymore. So

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Speaker 3: I have to imagine that they have all stopped using race.

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Speaker 3: They all changed their admissions policies to stop using race

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Speaker 3: as a factor, because the Supreme Court said to do

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Speaker 3: so is unconstitutional and we will have to see after

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Speaker 3: this admission cycle what difference that makes, if any, in

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Speaker 3: the diversity of the classes that they end up with.

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Speaker 2: Dartmouth's College will once again require standardized testing for applicants.

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Speaker 2: It's following MIT in reversing a pandemic error shift away

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Speaker 2: from tests such as the SAT and ACT. Dartmouth said

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Speaker 2: in a statement today that restoring the testing mandate will

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Speaker 2: help attract the most promising and diverse students to our campuses.

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Speaker 2: I've been talking to Audrey Anderson, head of the higher

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Speaker 2: education practice at Bass, Barry and Simms. Audrey Dartmouth says

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Speaker 2: this is going to attract more diverse candidates. But I

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Speaker 2: thought there was a complaint about standardized testing, that it's

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Speaker 2: unfair to lower income students.

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Speaker 3: I think it's really interesting June and they've Dartmouth did

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Speaker 3: its own little study on this, and others have been

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Speaker 3: doing studies as well about you know, if you're only

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Speaker 3: looking at great point averages and teacher recommendations and extracurricular activities,

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Speaker 3: if you have a student who coming from a disadvantage background,

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Speaker 3: it can be hard for that student to stand out,

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Speaker 3: and elite colleges may not be very familiar with their

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Speaker 3: high school. If a student from one of those high

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Speaker 3: schools gets a standardized test score, that might not be

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Speaker 3: a quote unquote perfect score on the SAT or the ACT,

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Speaker 3: but it's still a strong score. It is a way

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Speaker 3: for that student to distinguish themselves. And from just the

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Speaker 3: little bit I've read about the research that Dartmouth did

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Speaker 3: and that others have done, it's a way for a

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Speaker 3: school like Dartmouth that says, look, we will allow in

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Speaker 3: students with a range of test scores, and when we

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Speaker 3: look at test scores, we're going to consider a test

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Speaker 3: score differently from a student that comes from a disadvantaged

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Speaker 3: high school, disadvantaged background. Then we're going to look at

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Speaker 3: a student from a school that's in a very affluent area,

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Speaker 3: and that we're going to assume that student's got a

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Speaker 3: very affluent background. So we think that we should and

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Speaker 3: what the Furthermore, their study found they looked at students

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Speaker 3: who applied from lower income backgrounds and chose not to

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Speaker 3: report their test scores, but they somehow found out what

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Speaker 3: those test scores were, and they found that some of

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Speaker 3: those students Dartmouth did not accept who had not reported

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Speaker 3: their test scores but said that if they'd reported their

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Speaker 3: test scores, Dartmouth would have taken them, really because because

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Speaker 3: the student thought their test score was too low, because

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Speaker 3: it was probably well below the median score of what

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Speaker 3: Dartmouth said was in their class, but based on their

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Speaker 3: high school background, the people at Dartmouth are saying, well,

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Speaker 3: we would have known that a student with that kind

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Speaker 3: of test score from that high school was a very

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Speaker 3: strong student because they don't have they didn't have a

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Speaker 3: kind of academic background in high school that these other

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Speaker 3: students had. So a score of fourteen hundred from that

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Speaker 3: student is really a show a whole lot of academic strength.

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Speaker 3: So that's really interesting. I think schools are going to

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Speaker 3: be making a lot of different choices. But one of

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Speaker 3: the things that was asked on one interview I saw

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Speaker 3: that Dartmouth person was well, aren't you afraid that this

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Speaker 3: data is going to make it easier for people like

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Speaker 3: students for fair admissions to sue you and say that

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Speaker 3: you're really using race and admissions because it might show

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Speaker 3: that your students of color have lower average test scores

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Speaker 3: than your white students. And the person from Dartmouth said,

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Speaker 3: we're not worried about that we are really about access

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Speaker 3: for students from disadvantaged backgrounds. But that is I mean,

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Speaker 3: that's one of the things I've thought about for a

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Speaker 3: long time is if you don't have that test score data,

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Speaker 3: you've really taken probably the biggest arrow out of sffa's quiver.

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Speaker 3: That's really what they rely on to show you must

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Speaker 3: be discriminating on the basis of race.

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Speaker 2: We'll see how many schools follow Dartmouth and MIT. Standardized

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Speaker 2: testing is optional at this point at Harvard, which of

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Speaker 2: course lost that Affirmative Action Supreme Court case. Thanks for

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Speaker 2: some interesting insights, Audrey. That's Audrey Anderson of Bass, Barry

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Speaker 2: and Simms. Let's turn now to the long awaited Senate

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Speaker 2: bill on Border Security and Foreign Aid. The more than

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Speaker 2: one hundred eighteen billion dollar compromise would crack down on

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Speaker 2: illegal border crossings, make it harder to apply for asylum,

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Speaker 2: and speed up deportations of undocumented migrants, but it now

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Speaker 2: faces criticism from both the left and the right, the

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Speaker 2: most serious threat coming from Republicans led by former President

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Speaker 2: Donald Trump. Republican Senator James Langford, one of the bill's authors,

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Speaker 2: has been trying to combat misinformation and stress the importance

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Speaker 2: of getting a border deal now.

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Speaker 4: Even when President Trump was president, we had days of

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Speaker 4: more than four thousand people illegally crossing our border a day.

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Speaker 4: We had huge spike days even during that time period.

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Speaker 4: If we don't actually fix the loopholes in the law,

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Speaker 4: regardless of who's president, that's never going to get better.

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Speaker 2: Joining me is Leon Fresco of Honda Night, the former

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Speaker 2: head of the Office of Immigration Litigation at the Justice Department. Leon,

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Speaker 2: what stands out to you in this bill is it's

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Speaker 2: going to be.

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Speaker 1: Up to the eye of the beholder in terms of

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Speaker 1: what people want to do moving forward. If people want

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Speaker 1: to build a long term structure that will reduce the

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Speaker 1: number of people coming across the border, albeit not immediately,

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Speaker 1: it will take some time, then this bill is a

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Speaker 1: bill they should consider voting for because at the end

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Speaker 1: of the day, the things this bill does is it

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Speaker 1: provides a ceiling on a worst case scenario in the border, which,

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Speaker 1: depending on who the president is, could be either four

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Speaker 1: thousand people. That's when that ceiling can be enacted, and

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Speaker 1: then it must be enacted at border crossing levels of

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Speaker 1: five thousand per day. And when that happens, they're basically

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Speaker 1: at shut down, which means that people cannot come across anymore.

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Speaker 1: They're just immediately removed. You can't ask for a side,

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Speaker 1: you can't ask for anything else, you immediately get turned back. Now,

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Speaker 1: to do that, there's gonna be a infrastructure that's going

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Speaker 1: to need to be built over the course of time,

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Speaker 1: where people are put in place to put in that infrastructure.

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Speaker 1: Because there's another system that gets put in place where

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Speaker 1: people can ask for asylum through a different screening process,

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Speaker 1: and that process will always have at a bare minimum

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Speaker 1: fourteen hundred people per day. That process is going to

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Speaker 1: take some time to need to get us to speed,

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Speaker 1: and so there's gonna be some bumpiness as that process

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Speaker 1: moves forward. Now, having said that, there are some challenges

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Speaker 1: on both sides of the equation. On the left side

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Speaker 1: of the equation, there's still the grumbling of why was

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Speaker 1: this border enforcement bill done, paired with Ukraine and other funding,

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Speaker 1: and that's part of some larger overhaul of the entire

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Speaker 1: immigration system. So that's the griping on the left, and

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Speaker 1: you're seeing Bernie Fenders, Bob Menendez, and Alex Padilla saying

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Speaker 1: that's they have three Democratic senators saying that and then

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Speaker 1: on the right you have this idea of the borders

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Speaker 1: should just be closed, period and there should be no

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Speaker 1: number of people at the end of the day who

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Speaker 1: are forbidded to cross to make asylum claims, and the

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Speaker 1: story all the asylum planes should either be made in

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Speaker 1: Mexico or not made at all. It's unclear, and so

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Speaker 1: that part is a little bit also troubling, because you

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Speaker 1: want to be a nation of laws and you want

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Speaker 1: to be a nation of immigrants and of values. They

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Speaker 1: want to do both, and it's unclear if there's space

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Speaker 1: even for any asylum seekers to present themselves in any

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Speaker 1: forum under a conservative plan. But nevertheless, that's where we're left.

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Speaker 1: And then there's people saying that Biden should just do

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Speaker 1: this on his own, which the problem is not even

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Speaker 1: Trump nor Biden could do this on their own. There

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Speaker 1: is this legislative need to actually put in such changes

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Speaker 1: to the asylum system. But for now it's politically expedient

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Speaker 1: to say that Biden could do this on his own

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Speaker 1: when he really can't.

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Speaker 2: Why can he Why can't he issue an executive order?

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Speaker 1: So the most he can do is what Trump started

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Speaker 1: to try to do, which was this process called remain

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Speaker 1: in Mexico, which is, take people who are into the

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Speaker 1: United States and move them back into Mexico for processing

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Speaker 1: of their immigration cases in Mexico. You couldn't just stop it.

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Speaker 1: You couldn't just ban it, which is what people are

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Speaker 1: saying now. You'd have to continue processing their cases in Mexico.

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Speaker 1: And so that requires a lot of cooperation with Mexico

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Speaker 1: because these people need to actually be there, they need

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Speaker 1: to be reachable for the purposes of their cases. There

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Speaker 1: needs to be an infrastructure that set up. Mexico needs

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Speaker 1: to agree to accept people from other countries to allow

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Speaker 1: them to wait in Mexico while their asylum playing is pending,

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Speaker 1: as opposed to then if somebody gets supported to Mexico,

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Speaker 1: Mexico can then deport them back to a different country

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Speaker 1: that's not permitted here, because those people actually have to

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Speaker 1: stay to be able to make their claim in the

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Speaker 1: United States. And so even at the height of the

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Speaker 1: Trump levels of remain in Mexico, we were not doing

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Speaker 1: more than a few hundred people like this to day.

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Speaker 1: And so if we're talking about five thousand people per day,

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Speaker 1: we've not had that yet. There's no infrastructure yet for

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Speaker 1: that arrangement, and that's what Biden can do. He can't

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Speaker 1: just ban people from asking for asylum. That's where he

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Speaker 1: needs a new statutory hook for that, as the Ninth

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Speaker 1: Circuit has twice, once un they're Trump and now on

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Speaker 1: they're Biden says, you can't ban people from applying for

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Speaker 1: asylum in the United States. Instead, you can do this

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Speaker 1: remain in Mexico, but you would need to build this infrastructure.

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Speaker 1: And for the purposes of the political side of this,

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Speaker 1: nobody thinks you could actually ramp that up now by

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Speaker 1: the time they would make any difference for election day,

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Speaker 1: it would still take a lot of time. And so

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Speaker 1: that's where people are stuck at the moment.

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Speaker 2: Under the bill, it would expedite the asylum processing timeline

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Speaker 2: from years to six months. Wouldn't that require a lot

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Speaker 2: more people.

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Speaker 1: Well, yes, they're doing two things. They're hiring about four

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Speaker 1: thousand new people, but they're also ending the situation where

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Speaker 1: people go to immigration court for their cases. There would

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Speaker 1: just basically be a screening up front by a new

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Speaker 1: screening division of what is called US Citizenship and Immigration Services.

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Speaker 1: So that's the people who do the legal immigration part

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Speaker 1: of the American system. So they would hire a new

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Speaker 1: refugee corps of about four thousand people in it, and

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Speaker 1: those people would do an initial screening, and one of

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Speaker 1: three things could happen at that initial screening. Either the

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Speaker 1: person could be immediately disqualified and then would be removed

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Speaker 1: subject to an appeal. That's the proposedly would take place

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Speaker 1: within seventy two hours. We'll see if it can actually

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Speaker 1: take place so quickly, but nevertheless, that would be one option.

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Speaker 1: The second option would be the case would be so

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Speaker 1: compelling that it would be obvious this person actually qualified

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Speaker 1: for asylum and you wouldn't need some lengthy trial. So,

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Speaker 1: for instance, if people were fleeing a well known holocaust

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Speaker 1: that's happening in some country, then everybody well, no, oh, yeah,

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Speaker 1: you're from ex country, there is a holocaust in that country.

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Speaker 1: We get it, okay, so end the story. So those

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Speaker 1: people would not need to go through the whole machinations

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Speaker 1: of a trial or three. You then actually have a

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Speaker 1: longer proceeding that's supposed to take place within six months.

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Speaker 1: That will then be the final distermination about whether you

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Speaker 1: win asylum or not.

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Speaker 2: Does this peel have any effect on the migrants who

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Speaker 2: have come into the country the last year. Does it

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Speaker 2: affect No.

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Speaker 1: No, And that's a big criticism of the Republicans is

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Speaker 1: for the people that have come in this year and

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Speaker 1: last year and the year before, there is to be

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Speaker 1: some larger organization in place in terms of authority to

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Speaker 1: remove those people. Now, what there will be is there's

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Speaker 1: a lot more funding for ICE to try to engage

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Speaker 1: in removal processes, and there's more funding for immigration courts

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Speaker 1: to try to have more cases done. But really, at

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Speaker 1: the end of the day, those things take time because

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Speaker 1: one ICE can't do anything unless the people involved have

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Speaker 1: a removal order. So they've got to now finish the

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Speaker 1: immigration court system. And the thing is, you can spend

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Speaker 1: all the money you want on immigration court, but at

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Speaker 1: the end of the day, these these buildings are finite buildings,

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Speaker 1: meaning you can only put judges in so many places

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Speaker 1: in these buildings. So you'll either need to get more

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Speaker 1: buildings for people to have more cases, or you'll have

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Speaker 1: to have more of these very unsatisfactory video conference hearings

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Speaker 1: where people are having all kinds of trouble hearing one another,

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Speaker 1: and really you would be very disappointed in the kind

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Speaker 1: of just this that happened in these video conference theories.

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Speaker 1: But that would be another alternative. But if you wanted

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Speaker 1: to do it right, where there was more capacity in

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Speaker 1: an actual courtroom for people to actually do their cases,

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Speaker 1: that's going to take time to implement.

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Speaker 2: Coming up next, Texas Governor Greg Abbott gathers other Republican

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Speaker 2: governors at the border to try to ratchet up the

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Speaker 2: pressure on the Biden administration. You're listening to Bloomberg from

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Speaker 2: Bloomberg Radio.

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Speaker 4: I think it's awesome because what's fixing to happen is

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Speaker 4: that Greg Abbott is probably going to mop the floor

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Speaker 4: with Joe Biden.

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Speaker 2: That was one of the protesters in a convoy that

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Speaker 2: started in Virginia and travel through nine states before reaching

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Speaker 2: Texas this weekend to rally in support of Texas Governor

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Speaker 2: Greg Abbot's defiance of the federal government. More than a

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Speaker 2: dozen Republican governors also travel to Texas to support Abbot

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Speaker 2: and to call on Biden to do more to secure

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Speaker 2: the border. Abbot slam the Biden administration for what he

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Speaker 2: claims is standing in the way of Texas defending its

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Speaker 2: own border.

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Speaker 1: The president is obligated by laws passed by Congress to

437
00:26:09,760 --> 00:26:12,760
Speaker 1: actually secure the border and deny illegal entry.

438
00:26:13,200 --> 00:26:16,359
Speaker 2: I've been talking to immigration law expertly on Fresco, a

439
00:26:16,480 --> 00:26:20,040
Speaker 2: partner at Holland and Knight. Texas has already been deploying

440
00:26:20,160 --> 00:26:25,120
Speaker 2: National Guard troops and state police officers since twenty twenty

441
00:26:25,200 --> 00:26:28,720
Speaker 2: one on the border, and they started stringing up that

442
00:26:29,240 --> 00:26:33,840
Speaker 2: wire in twenty twenty two. Explain what changed last month

443
00:26:34,400 --> 00:26:37,160
Speaker 2: at Eagle Pass or Shelby Park.

444
00:26:37,840 --> 00:26:41,959
Speaker 1: Well, what's happening is Texas is putting barriers up along

445
00:26:42,240 --> 00:26:46,879
Speaker 1: private land that the federal government doesn't control. But the

446
00:26:47,000 --> 00:26:51,560
Speaker 1: problem is those barriers are preventing the border patrol from

447
00:26:51,680 --> 00:26:57,040
Speaker 1: accessing people crossing the United States. Which is it all

448
00:26:57,080 --> 00:26:59,520
Speaker 1: depends how you look at it. Texas would say those

449
00:26:59,600 --> 00:27:02,760
Speaker 1: barriers are preventing people from coming into Texas, so that's

450
00:27:02,800 --> 00:27:05,840
Speaker 1: why they're there, and the Border patrol would say, no,

451
00:27:06,040 --> 00:27:09,200
Speaker 1: that's preventing us from accessing the people try to come

452
00:27:09,240 --> 00:27:12,480
Speaker 1: into Texas because we may need to give life saving care,

453
00:27:12,880 --> 00:27:16,320
Speaker 1: or we may need to arrest them, or whatever the

454
00:27:16,400 --> 00:27:19,400
Speaker 1: reason may be. And so you have this is completely

455
00:27:20,760 --> 00:27:23,159
Speaker 1: opposite point of view depending on where you're looking at it.

456
00:27:23,800 --> 00:27:27,600
Speaker 1: And so the federal government suit has said you can't

457
00:27:27,680 --> 00:27:31,520
Speaker 1: do this. You can't have this blockade that prevents the

458
00:27:31,680 --> 00:27:35,560
Speaker 1: border patrol from being able to patrol the border, and

459
00:27:35,720 --> 00:27:39,200
Speaker 1: so you have an injunction right now or a stay

460
00:27:39,400 --> 00:27:43,440
Speaker 1: essentially where five Supreme Court justices agreed. And now the

461
00:27:43,560 --> 00:27:46,600
Speaker 1: question is, well, what is the Biden administration willing to do,

462
00:27:47,880 --> 00:27:50,360
Speaker 1: because the only authority they have is to cut down

463
00:27:51,119 --> 00:27:55,280
Speaker 1: this wiring, that's what they have. From that perspective, do

464
00:27:55,440 --> 00:27:57,000
Speaker 1: they want to do that if it's going to lead

465
00:27:57,080 --> 00:28:00,800
Speaker 1: to some sort of violent confrontation and so we haven't

466
00:28:00,840 --> 00:28:04,479
Speaker 1: seen that happen yet, and that's the issue really at

467
00:28:04,480 --> 00:28:06,280
Speaker 1: the end of the day. I mean, yes, they can

468
00:28:06,359 --> 00:28:09,360
Speaker 1: hold the governor in content, but in order to hold

469
00:28:09,400 --> 00:28:13,040
Speaker 1: the governor in contempt, even all of this is just paperwork.

470
00:28:13,080 --> 00:28:15,440
Speaker 1: So fine, you hold the governor in contempt. Now what

471
00:28:15,720 --> 00:28:18,760
Speaker 1: are you still going and trying to cut down the wiring?

472
00:28:19,280 --> 00:28:23,600
Speaker 1: And if you are, that's where the violence could take place.

473
00:28:23,920 --> 00:28:27,680
Speaker 1: So the court becomes irrelevant here, and this is where

474
00:28:27,720 --> 00:28:30,280
Speaker 1: you saw some of these Sunday shows are people asking

475
00:28:30,440 --> 00:28:34,520
Speaker 1: is that an acceptable concervative position to basically nullify a

476
00:28:34,640 --> 00:28:37,159
Speaker 1: court and make them irrelevant, Because at the end of

477
00:28:37,200 --> 00:28:39,200
Speaker 1: the day, what's going to have to happen is there's

478
00:28:39,200 --> 00:28:42,240
Speaker 1: going to have to be a violent confrontation in order

479
00:28:42,320 --> 00:28:46,000
Speaker 1: to bring down those wires. That's the problem that's happening

480
00:28:46,040 --> 00:28:49,440
Speaker 1: in Texas right now, and it's unclear how is how

481
00:28:49,520 --> 00:28:50,080
Speaker 1: that would end.

482
00:28:50,480 --> 00:28:56,480
Speaker 2: So is Texas then not strictly defying the Supreme Court

483
00:28:56,680 --> 00:29:00,520
Speaker 2: order because the Biden administration hasn't go on there and

484
00:29:00,600 --> 00:29:02,840
Speaker 2: said we want to go and cut these wires.

485
00:29:03,480 --> 00:29:06,000
Speaker 1: Correct, That's the problem is we're in this cold war

486
00:29:06,800 --> 00:29:11,080
Speaker 1: where nobody's trying, say, heating the war yet because in

487
00:29:11,200 --> 00:29:13,360
Speaker 1: the customs and Border protection, if they try to cut

488
00:29:13,400 --> 00:29:17,520
Speaker 1: the wire, will this lead to a violent confrontation or

489
00:29:17,600 --> 00:29:21,480
Speaker 1: will it just be permitted? And only when that answer

490
00:29:21,560 --> 00:29:24,240
Speaker 1: evolved do we know if Texas is in contents of

491
00:29:24,360 --> 00:29:24,800
Speaker 1: quart or not.

492
00:29:25,920 --> 00:29:30,640
Speaker 2: And in the meantime, Texas is preventing any migrants from

493
00:29:30,760 --> 00:29:33,080
Speaker 2: crossing at that particular point.

494
00:29:33,600 --> 00:29:38,120
Speaker 1: Correct, people are now dispersing into other parts of Texas

495
00:29:38,240 --> 00:29:41,480
Speaker 1: and into Arizona and into California and in through the water.

496
00:29:42,240 --> 00:29:45,320
Speaker 1: And so these things always operate in a sort of

497
00:29:45,880 --> 00:29:48,080
Speaker 1: air in the balloon way where the air will go

498
00:29:48,120 --> 00:29:50,520
Speaker 1: to a different part of the balloon. If you sleeze

499
00:29:50,600 --> 00:29:53,200
Speaker 1: on another part of the balloon, but also the numbers

500
00:29:53,240 --> 00:29:56,440
Speaker 1: are less because of the weather. You're seeing colder weather,

501
00:29:56,840 --> 00:29:59,720
Speaker 1: and so we will see how this all ends up

502
00:29:59,760 --> 00:30:02,680
Speaker 1: shaking up. But when the spring comes, is there's no

503
00:30:02,840 --> 00:30:06,720
Speaker 1: new authority, there's going to be numbers, and we'll see

504
00:30:06,760 --> 00:30:09,360
Speaker 1: if Texas tries to do this in other parts of Texas.

505
00:30:09,800 --> 00:30:12,280
Speaker 1: The other thing that makes this complicated is all of

506
00:30:12,360 --> 00:30:15,240
Speaker 1: that land is private land, and so there are private

507
00:30:15,400 --> 00:30:18,920
Speaker 1: ranchers and landowners that may not want Texas doing this,

508
00:30:19,800 --> 00:30:23,360
Speaker 1: or they may say, hey, look you're taking my property.

509
00:30:23,440 --> 00:30:25,360
Speaker 1: You owe me a lot of money for doing this,

510
00:30:26,000 --> 00:30:28,200
Speaker 1: and so that's where this stuff starts to get more

511
00:30:28,280 --> 00:30:30,800
Speaker 1: complicated than in this area that's a park.

512
00:30:31,280 --> 00:30:34,040
Speaker 2: Abba has been trying to justify his actions at the

513
00:30:34,120 --> 00:30:38,440
Speaker 2: border by calling this an invasion, referring to language and

514
00:30:38,640 --> 00:30:42,200
Speaker 2: Article one, Section ten. Does that make his argument any

515
00:30:42,320 --> 00:30:45,640
Speaker 2: stronger than say Arizona's was so many years ago.

516
00:30:46,440 --> 00:30:50,040
Speaker 1: There are two arguments. One the we're just supplementing the

517
00:30:50,080 --> 00:30:53,520
Speaker 1: federal government three sources and what Congress wanted the federal

518
00:30:53,560 --> 00:30:58,120
Speaker 1: government to do. That's the Arizona argument, and that argument failed,

519
00:30:58,600 --> 00:31:00,800
Speaker 1: and so what would be recalled wired is for the

520
00:31:00,880 --> 00:31:07,760
Speaker 1: five justices Kavanaugh, Alito, Borsic Thomas, and Cony Barrett. It

521
00:31:07,800 --> 00:31:12,680
Speaker 1: would require those fives to come in control and say, yes,

522
00:31:12,840 --> 00:31:16,000
Speaker 1: we're going to overturn Arizona, which I don't know because

523
00:31:16,080 --> 00:31:18,240
Speaker 1: Cony Barrett didn't do it with regards to this Eagle

524
00:31:18,320 --> 00:31:20,920
Speaker 1: Pass case. So you start to think she would probably

525
00:31:21,080 --> 00:31:26,280
Speaker 1: side with maintaining the Arizona president given that the basic

526
00:31:26,400 --> 00:31:29,280
Speaker 1: ideals of the Arizona president are what led to this

527
00:31:29,480 --> 00:31:32,600
Speaker 1: wire case where she ruled in favor of the federal government.

528
00:31:33,040 --> 00:31:37,000
Speaker 1: So from that perspective, that one's not probably gonna work,

529
00:31:37,040 --> 00:31:40,160
Speaker 1: and I think Texas now realizes this. So they switched

530
00:31:40,200 --> 00:31:43,000
Speaker 1: to this invasion logic, which is that at the end

531
00:31:43,000 --> 00:31:44,960
Speaker 1: of the day, the federal government has a duty to

532
00:31:45,040 --> 00:31:48,360
Speaker 1: protect states from invasion, and if not, the states can

533
00:31:48,640 --> 00:31:51,200
Speaker 1: take the matters into their own hands. But again, the

534
00:31:51,360 --> 00:31:56,320
Speaker 1: invasion has to have a different character than the one

535
00:31:56,520 --> 00:31:59,320
Speaker 1: that this is because the law is pretty clear there

536
00:31:59,360 --> 00:32:01,880
Speaker 1: has to be a of the country that's doing the invading,

537
00:32:02,720 --> 00:32:06,280
Speaker 1: and it has to be a declaration of war and

538
00:32:06,400 --> 00:32:09,280
Speaker 1: all of these other things, and there's none of that.

539
00:32:09,840 --> 00:32:11,840
Speaker 1: You know, there's times you can't say that there's a

540
00:32:11,960 --> 00:32:17,440
Speaker 1: specific country who's engineering this for the purposes of invading

541
00:32:17,520 --> 00:32:20,560
Speaker 1: the United States, because people are coming from everywhere, and

542
00:32:20,840 --> 00:32:23,520
Speaker 1: so you know that's both a bad fact for the

543
00:32:23,560 --> 00:32:27,280
Speaker 1: Bide administration politically, but for this legal case, it makes

544
00:32:27,320 --> 00:32:30,760
Speaker 1: them much harder to argue there's an actual invasion per.

545
00:32:30,720 --> 00:32:33,480
Speaker 2: Se Lee and I also want to ask you about

546
00:32:33,520 --> 00:32:36,640
Speaker 2: the situation in New York, which has been struggling with

547
00:32:36,760 --> 00:32:39,880
Speaker 2: the nearly two hundred thousand migrants who have arrived in

548
00:32:39,960 --> 00:32:42,760
Speaker 2: the city in the last two years. A group of

549
00:32:42,960 --> 00:32:47,000
Speaker 2: migrants who attacked two police officers, and most of those

550
00:32:47,080 --> 00:32:51,440
Speaker 2: have been released, some without any bail. Supposedly three took

551
00:32:51,480 --> 00:32:54,800
Speaker 2: a bus out of the city. Only one remains in jail.

552
00:32:55,400 --> 00:32:57,120
Speaker 2: Here's what Mayor Adams had to say.

553
00:32:57,640 --> 00:32:59,880
Speaker 1: Have you assaught police officers on the street?

554
00:33:00,840 --> 00:33:04,600
Speaker 3: I believe if you've found guilty, you should be the

555
00:33:04,680 --> 00:33:07,120
Speaker 3: federal government should do their job of deploying that person.

556
00:33:07,640 --> 00:33:10,840
Speaker 1: So there's a bunch of different issues. So there's the

557
00:33:10,920 --> 00:33:15,560
Speaker 1: first issue of when you enter the United States, one

558
00:33:15,640 --> 00:33:19,480
Speaker 1: of three things is happening with these individuals. Either they've

559
00:33:19,560 --> 00:33:23,280
Speaker 1: actually gone through the process of establishing a credible fear

560
00:33:24,280 --> 00:33:28,480
Speaker 1: that they are facing persecution, if they get supported back

561
00:33:28,920 --> 00:33:31,720
Speaker 1: that's that they are free and they are able to

562
00:33:32,360 --> 00:33:35,840
Speaker 1: walk around the United States while their case is pending.

563
00:33:36,080 --> 00:33:39,160
Speaker 1: That's option number one. Option number two is they never

564
00:33:39,200 --> 00:33:40,960
Speaker 1: even did that. There were just so many people on

565
00:33:41,040 --> 00:33:45,080
Speaker 1: a specific day that they crossed that literally I just

566
00:33:45,160 --> 00:33:48,040
Speaker 1: said to them, go into America and we'll figure out

567
00:33:48,040 --> 00:33:51,040
Speaker 1: what your court date is later. And so that could

568
00:33:51,080 --> 00:33:54,160
Speaker 1: be the group that they're in. That's an option. Or third,

569
00:33:54,240 --> 00:33:57,960
Speaker 1: people could have fucking in that situation. But in any

570
00:33:58,000 --> 00:34:02,800
Speaker 1: of those three scenarios, they're now here. What happens is

571
00:34:03,000 --> 00:34:06,240
Speaker 1: if you commit a crime like the police beatings that

572
00:34:06,360 --> 00:34:09,799
Speaker 1: we saw, there's two different determinations that happen. Number one,

573
00:34:09,880 --> 00:34:14,479
Speaker 1: there is does the criminal entity, meaning in this case,

574
00:34:14,600 --> 00:34:18,640
Speaker 1: New York want to put this person into bail or

575
00:34:18,680 --> 00:34:22,080
Speaker 1: in detention, And that doesn't matter whether that person is

576
00:34:22,160 --> 00:34:25,560
Speaker 1: a citizen or the person who has the most illegal

577
00:34:25,640 --> 00:34:28,600
Speaker 1: status in history. That they have to make that decision

578
00:34:29,080 --> 00:34:32,000
Speaker 1: based on the crime and the law. And so New

579
00:34:32,080 --> 00:34:36,120
Speaker 1: York has laws that people criticize for being very weak

580
00:34:36,239 --> 00:34:39,680
Speaker 1: on who gets bail and who has to be in detention.

581
00:34:40,080 --> 00:34:42,320
Speaker 1: And so that's one issue that has nothing to do

582
00:34:42,400 --> 00:34:45,279
Speaker 1: with the immigration status. So there's a first question, why

583
00:34:45,360 --> 00:34:48,040
Speaker 1: is anybody, no matter what their status is, who's beating

584
00:34:48,120 --> 00:34:51,399
Speaker 1: police officers not in jail? Fair enough? So New York

585
00:34:51,520 --> 00:34:55,560
Speaker 1: doesn't put those people into detention. They're free. Now there's

586
00:34:55,560 --> 00:34:59,560
Speaker 1: an ice question, will I put those people in detention?

587
00:35:00,080 --> 00:35:03,839
Speaker 1: I certainly has the ability to put anybody at once

588
00:35:03,960 --> 00:35:08,440
Speaker 1: in removal proceedings into immigration detention on the grounds that

589
00:35:08,640 --> 00:35:11,640
Speaker 1: they are a danger to society. They certainly can do that.

590
00:35:12,640 --> 00:35:15,800
Speaker 1: And the question is can I now find these people?

591
00:35:16,160 --> 00:35:19,040
Speaker 1: And I think what happened was these people are scondent

592
00:35:19,160 --> 00:35:21,960
Speaker 1: now and so it's a little bit trickier to find them.

593
00:35:22,040 --> 00:35:25,120
Speaker 1: But if I find them, I certainly can put them

594
00:35:25,160 --> 00:35:30,800
Speaker 1: in immigration detention while they're immigration removal cases pending. But

595
00:35:31,040 --> 00:35:33,719
Speaker 1: it may not want to remove these people while they're

596
00:35:33,760 --> 00:35:36,680
Speaker 1: criminal cases pending, because what you don't want to do.

597
00:35:37,200 --> 00:35:39,080
Speaker 1: This is a misnomer that people make all the time.

598
00:35:39,160 --> 00:35:42,160
Speaker 1: They say, why don't you just support the person and

599
00:35:42,440 --> 00:35:44,600
Speaker 1: just end this all? But the problem is if you

600
00:35:44,719 --> 00:35:48,839
Speaker 1: deport people without making them face their criminal sanctions, then

601
00:35:48,920 --> 00:35:52,080
Speaker 1: what happens is, let's say somebody could murder somebody and

602
00:35:52,160 --> 00:35:54,720
Speaker 1: you just support them so they never go to jail,

603
00:35:55,080 --> 00:35:57,600
Speaker 1: and then one week later they're back in the US

604
00:35:57,680 --> 00:36:00,440
Speaker 1: and they're a murderer. So you don't want that. You

605
00:36:00,520 --> 00:36:03,640
Speaker 1: want the person in detention because you have to assume

606
00:36:03,719 --> 00:36:06,200
Speaker 1: there's a high likelihood that they find some way to

607
00:36:06,280 --> 00:36:08,759
Speaker 1: sneak back in to America. So you have to make

608
00:36:08,840 --> 00:36:12,480
Speaker 1: them serve their criminal sentence. So you have to time

609
00:36:12,640 --> 00:36:16,400
Speaker 1: this properly to have ice have the people in detention

610
00:36:17,120 --> 00:36:21,440
Speaker 1: while they're waiting for their New York criminal things and

611
00:36:21,800 --> 00:36:25,560
Speaker 1: whatever those New York criminal thingtions are over, then you

612
00:36:26,239 --> 00:36:27,440
Speaker 1: proceed with the removal.

613
00:36:28,040 --> 00:36:31,839
Speaker 2: Every time I think I understand immigration law, something else

614
00:36:31,920 --> 00:36:35,000
Speaker 2: happens that proves that I don't. That's why we have you, Leon,

615
00:36:35,160 --> 00:36:37,680
Speaker 2: Thanks so much for explaining all the ins and outs

616
00:36:37,760 --> 00:36:41,360
Speaker 2: to us. That's Leon Fresco, a partner hollanden Knight. And

617
00:36:41,520 --> 00:36:43,920
Speaker 2: that's it for this edition of the Bloomberg Law Podcast.

618
00:36:44,320 --> 00:36:46,680
Speaker 2: Remember you can always get the latest legal news by

619
00:36:46,719 --> 00:36:50,520
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

620
00:36:50,840 --> 00:36:54,680
Speaker 2: and at Bloomberg dot com, slash podcast Slash Law. I'm

621
00:36:54,800 --> 00:36:57,160
Speaker 2: June Grosso and this is Bloomberg