Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: The Supreme Court will not force West Point to drop
Speaker 2: its consideration of race and admissions, at least for now.
Speaker 2: On Friday, with a two sentence unsigned order and no
Speaker 2: public descents, the Justices turned down the group that won
Speaker 2: the blockbuster decision last year banning affirmative action in colleges
Speaker 2: and universities. The Court said, quote, the record before this
Speaker 2: Court is underdeveloped, and this order should not be construed
Speaker 2: as expressing any view on the merits of the constitutional question.
Speaker 2: My guest is Audrey Anderson, head of the higher education
Speaker 2: practice at bass Berry and Simms. Audrey start by reminding
Speaker 2: us about that affirmative action decision and the footnote that
Speaker 2: the Chief Justice dropped.
Speaker 3: Sure in the case against Harvard and the University of
Speaker 3: North Carolina at Chapel Hill, the Supreme Court held that
Speaker 3: colleges and universities could not use race and admissions where
Speaker 3: they were doing so for the educational benefits of a
Speaker 3: diverse student body. In that case, though, they dropped a
Speaker 3: footnote in the decision saying that what we're doing today
Speaker 3: doesn't say anything about the use of race in our
Speaker 3: nation's military academies, because the military academies may have potentially
Speaker 3: distinct interests from the civilian colleges and universities. And they
Speaker 3: dropped that footnote because the United States had filed an
Speaker 3: amicas brief saying that they used race as a factor
Speaker 3: in admitting students to the military academies, and they did
Speaker 3: so for all the reasons that civilian colleges and universities did.
Speaker 3: But then in addition to that, the military academies also
Speaker 3: had additional national security based interests that supported their use
Speaker 3: of race. So the court said, look, in this case
Speaker 3: against UNC and Harvard, we're not ruling on any of
Speaker 3: those different interests that the military academies might have. So
Speaker 3: unlike all the civilian college and universities, there isn't one
Speaker 3: of them that now says that they are using race
Speaker 3: as a factor in admissions. Everybody stopped. But at West
Speaker 3: Point and at the Naval Academy, they still say that
Speaker 3: we're going to use race and admissions.
Speaker 2: Do we know exactly how they use race and admissions?
Speaker 3: From the filings in the court cases that are pending
Speaker 3: right now, we can see how they use race and admissions.
Speaker 3: I'm not as familiar with how the Naval Academy uses race,
Speaker 3: But for West Point, the papers show us that it
Speaker 3: is done in a different way than at civil colleges
Speaker 3: and universities. And that's because you get into West Point
Speaker 3: in a different way than you get into a usual
Speaker 3: college or university. Almost everybody who gets into West Point
Speaker 3: gets in through a nomination from a member of Congress.
Speaker 3: And what West Point says is that for those applicants
Speaker 3: who get in through a nomination from a member of Congress,
Speaker 3: there's no consideration of race at all in those applications.
Speaker 3: They get scored through something called the whole candidate score
Speaker 3: that does not take race into account. However, after those
Speaker 3: applicants are admitted, there are some additional spaces left in
Speaker 3: the class. First, I can tell the papers haven't told
Speaker 3: us how many spaces in the class are still open.
Speaker 3: After that, and then there are a couple of buckets,
Speaker 3: one called additional Applicants bucket, which is for people who
Speaker 3: were nominated by a member of Congress but didn't get
Speaker 3: in through that route, so you can get in that way.
Speaker 3: Those applicants are considered by race. Also, the superintendent of
Speaker 3: the Academy can nominate people to be admitted to the academy,
Speaker 3: so those folks get in with race being considered also.
Speaker 3: And then there's this third process that is the analog
Speaker 3: to early decision at a civilian university, which is called
Speaker 3: a letter of acceptance. So applicants can apply for a
Speaker 3: letter of acceptance kind of at the front end of
Speaker 3: the process. And if you get a letter of acceptance
Speaker 3: early on, but then for some reason you don't get
Speaker 3: in through the regular process of getting in through a
Speaker 3: member of Congress, west Point says we will find a
Speaker 3: spot for you. It sounds to me like kind of
Speaker 3: like a guarantee in handing out those letters of acceptance
Speaker 3: they also consider race.
Speaker 2: This suit was brought against West Point by Students for
Speaker 2: Fair Admissions. That's the group behind all these lawsuits challenging
Speaker 2: affirmative action in colleges and universities. And in reaction to
Speaker 2: this decision, the group issued a statement, and it seemed
Speaker 2: to me they were misinterpreting the Chief Justice's footnote. They
Speaker 2: said the Supreme Court didn't address military academies in that
Speaker 2: decision only because the Court didn't know how they used race.
Speaker 2: That's not what the Chief Justice said, is it?
Speaker 3: No, it's not. I think that they're selling the court short.
Speaker 3: I think the court was more talking about we're not
Speaker 3: discussing these because the military academies are putting forth a
Speaker 3: different interest, a different purpose for using race. So I
Speaker 3: think there's two things the courts didn't know. First of all,
Speaker 3: we need to look at this whatever different interest the
Speaker 3: military is putting forward. They're saying, yeah, we have the
Speaker 3: same educational interest everybody else has, but we also have
Speaker 3: a national security based interest that requires us to use race.
Speaker 3: I think that's what they were really talking about when
Speaker 3: they talk about potentially distinct legal interests. So it's does
Speaker 3: the military have a different compelling interest that supports the
Speaker 3: use of race? And then the second part then is
Speaker 3: are they using it in a narrowly tailored way, which
Speaker 3: is what SFFA is talking about. They didn't know how
Speaker 3: they were using race.
Speaker 2: So students for Fair Admissions ask for an injunction, and
Speaker 2: the Supreme Court said no in an order, and it's
Speaker 2: sort of uncommon. There was a two sentence statement. It said,
Speaker 2: the record before this Court is underdeveloped, and this order
Speaker 2: should not be construed as expressing any of you on
Speaker 2: the merits of the constitutional question. There were no public descents,
Speaker 2: not even from you know, the super conservative justices who
Speaker 2: have long opposed affirmative action. And even though they say,
Speaker 2: don't construe this in any way, we still try to
Speaker 2: look behind it. So what do you make of their statement?
Speaker 3: Well, what I make of their statement is that, but
Speaker 3: if the whole court had not agreed to make that statement,
Speaker 3: that we're not saying anything on the merits of the
Speaker 3: constitutional question, you would have had some of the more
Speaker 3: conservative members of the Court dissenting saying we need to
Speaker 3: put an injunction in place right now because this is
Speaker 3: so clearly unconstitutional. Didn't you read our opinion? That's how
Speaker 3: I read that. I mean, I think you also have
Speaker 3: to look at you in the very aggressive litigation position
Speaker 3: that Students for Fair Admissions took in this case, that
Speaker 3: once their injunction was denied by the district court, they
Speaker 3: filed for emergency injunctive relief from the Second Circuit. And
Speaker 3: then even before the Second Circuit ruled, and not even
Speaker 3: two weeks after oral argument at the Second Circuit, they
Speaker 3: filed their motion for emergency injunctive relief before the Supreme Court,
Speaker 3: saying it is so urgent that you take action that
Speaker 3: you need to take action even before the Court of
Speaker 3: Appeals can rule on this. So they were going with
Speaker 3: a very very aggressive position in this case and making,
Speaker 3: you know, an argument that, oh, it is so clear,
Speaker 3: we don't even need any factual development. And for somebody
Speaker 3: who just basically believes that there is a color blind constitution,
Speaker 3: that's probably a very appealing argument. So that's what I
Speaker 3: think is going on there.
Speaker 2: I mean, they've been aggressive, but their cases have been
Speaker 2: going on for years and years and years. Why do
Speaker 2: you think there were so aggressive in this instance.
Speaker 3: Well, I think they're so aggressive partly because they really
Speaker 3: believe in their in their argument, and they honestly believe
Speaker 3: that white people are being hurt by not being able
Speaker 3: to go to West Point. I do believe that that
Speaker 3: is part of what is motivating them. But I think
Speaker 3: that they are also they are hoping to get as
Speaker 3: much out of the Harvard and UNC decision as they
Speaker 3: possibly can. They got a big win there, and they're
Speaker 3: kind of saying, well, let's see just how much we
Speaker 3: can get out of it. Maybe we can get out
Speaker 3: of it an injunction immediately to stop West Point. So
Speaker 3: I think that the really interesting question that I haven't
Speaker 3: figured out an answer to and it could because I
Speaker 3: just haven't really dived into all the details of the
Speaker 3: Naval Academy case. Is that their strategy in the Naval
Speaker 3: Academy case is quite different. They lost at the District
Speaker 3: Court for very similar reasons. The district Court said, we
Speaker 3: don't have enough facts here. In order to do strict scrutiny,
Speaker 3: we really need a factual record to scrutinize, and at
Speaker 3: this early stage, with no discovery, with no exchange of information,
Speaker 3: we don't have that factual record that we can scrutinize.
Speaker 3: So we've got to get some facts before we can
Speaker 3: do strict scrutiny. And on that one, the District Court
Speaker 3: ruled and Students for Fair Admissions has not appealed, no
Speaker 3: less gone for an emergency injunction. They're just letting the
Speaker 3: case play out, as often happens in litigation. So they've
Speaker 3: started discovery in that matter and have a trial set
Speaker 3: for the fall. So it's really interesting to me. I
Speaker 3: don't know why they treated the Naval Academy case differently
Speaker 3: than the West Point case.
Speaker 2: And the West Point case now is back on the
Speaker 2: ordinary track.
Speaker 3: Well, no, because they still have an appeal pending before
Speaker 3: the Second Circuit. So that case now, it kind of
Speaker 3: ironically will likely be slowed down because the district Court
Speaker 3: probably won't do anything with it until the Second Circuit rules.
Speaker 3: And all the Second Circuit has done now is to
Speaker 3: say we're denying your requests for immediate relief. Said, hey,
Speaker 3: Second Circuit, while you're deciding our appeal, you need to
Speaker 3: enter an injunction right now and then decide the appeal.
Speaker 3: So the Second Circuits said, okay, well, we've got this appeal,
Speaker 3: but we're not going to give you immediate relief while
Speaker 3: we're deciding it. We're going to decide the appeal now.
Speaker 3: So they still have to decide the appeal in the
Speaker 3: Second Circuit, So that's going to slow them down a
Speaker 3: little bit. In the West Point case.
Speaker 2: How have universities been dealing with the Supreme Court's affirmative
Speaker 2: action decision? Have they been considering race holistically?
Speaker 3: No one is saying that they're considering race anymore. So
Speaker 3: I have to imagine that they have all stopped using race.
Speaker 3: They all changed their admissions policies to stop using race
Speaker 3: as a factor, because the Supreme Court said to do
Speaker 3: so is unconstitutional and we will have to see after
Speaker 3: this admission cycle what difference that makes, if any, in
Speaker 3: the diversity of the classes that they end up with.
Speaker 2: Dartmouth's College will once again require standardized testing for applicants.
Speaker 2: It's following MIT in reversing a pandemic error shift away
Speaker 2: from tests such as the SAT and ACT. Dartmouth said
Speaker 2: in a statement today that restoring the testing mandate will
Speaker 2: help attract the most promising and diverse students to our campuses.
Speaker 2: I've been talking to Audrey Anderson, head of the higher
Speaker 2: education practice at Bass, Barry and Simms. Audrey Dartmouth says
Speaker 2: this is going to attract more diverse candidates. But I
Speaker 2: thought there was a complaint about standardized testing, that it's
Speaker 2: unfair to lower income students.
Speaker 3: I think it's really interesting June and they've Dartmouth did
Speaker 3: its own little study on this, and others have been
Speaker 3: doing studies as well about you know, if you're only
Speaker 3: looking at great point averages and teacher recommendations and extracurricular activities,
Speaker 3: if you have a student who coming from a disadvantage background,
Speaker 3: it can be hard for that student to stand out,
Speaker 3: and elite colleges may not be very familiar with their
Speaker 3: high school. If a student from one of those high
Speaker 3: schools gets a standardized test score, that might not be
Speaker 3: a quote unquote perfect score on the SAT or the ACT,
Speaker 3: but it's still a strong score. It is a way
Speaker 3: for that student to distinguish themselves. And from just the
Speaker 3: little bit I've read about the research that Dartmouth did
Speaker 3: and that others have done, it's a way for a
Speaker 3: school like Dartmouth that says, look, we will allow in
Speaker 3: students with a range of test scores, and when we
Speaker 3: look at test scores, we're going to consider a test
Speaker 3: score differently from a student that comes from a disadvantaged
Speaker 3: high school, disadvantaged background. Then we're going to look at
Speaker 3: a student from a school that's in a very affluent area,
Speaker 3: and that we're going to assume that student's got a
Speaker 3: very affluent background. So we think that we should and
Speaker 3: what the Furthermore, their study found they looked at students
Speaker 3: who applied from lower income backgrounds and chose not to
Speaker 3: report their test scores, but they somehow found out what
Speaker 3: those test scores were, and they found that some of
Speaker 3: those students Dartmouth did not accept who had not reported
Speaker 3: their test scores but said that if they'd reported their
Speaker 3: test scores, Dartmouth would have taken them, really because because
Speaker 3: the student thought their test score was too low, because
Speaker 3: it was probably well below the median score of what
Speaker 3: Dartmouth said was in their class, but based on their
Speaker 3: high school background, the people at Dartmouth are saying, well,
Speaker 3: we would have known that a student with that kind
Speaker 3: of test score from that high school was a very
Speaker 3: strong student because they don't have they didn't have a
Speaker 3: kind of academic background in high school that these other
Speaker 3: students had. So a score of fourteen hundred from that
Speaker 3: student is really a show a whole lot of academic strength.
Speaker 3: So that's really interesting. I think schools are going to
Speaker 3: be making a lot of different choices. But one of
Speaker 3: the things that was asked on one interview I saw
Speaker 3: that Dartmouth person was well, aren't you afraid that this
Speaker 3: data is going to make it easier for people like
Speaker 3: students for fair admissions to sue you and say that
Speaker 3: you're really using race and admissions because it might show
Speaker 3: that your students of color have lower average test scores
Speaker 3: than your white students. And the person from Dartmouth said,
Speaker 3: we're not worried about that we are really about access
Speaker 3: for students from disadvantaged backgrounds. But that is I mean,
Speaker 3: that's one of the things I've thought about for a
Speaker 3: long time is if you don't have that test score data,
Speaker 3: you've really taken probably the biggest arrow out of sffa's quiver.
Speaker 3: That's really what they rely on to show you must
Speaker 3: be discriminating on the basis of race.
Speaker 2: We'll see how many schools follow Dartmouth and MIT. Standardized
Speaker 2: testing is optional at this point at Harvard, which of
Speaker 2: course lost that Affirmative Action Supreme Court case. Thanks for
Speaker 2: some interesting insights, Audrey. That's Audrey Anderson of Bass, Barry
Speaker 2: and Simms. Let's turn now to the long awaited Senate
Speaker 2: bill on Border Security and Foreign Aid. The more than
Speaker 2: one hundred eighteen billion dollar compromise would crack down on
Speaker 2: illegal border crossings, make it harder to apply for asylum,
Speaker 2: and speed up deportations of undocumented migrants, but it now
Speaker 2: faces criticism from both the left and the right, the
Speaker 2: most serious threat coming from Republicans led by former President
Speaker 2: Donald Trump. Republican Senator James Langford, one of the bill's authors,
Speaker 2: has been trying to combat misinformation and stress the importance
Speaker 2: of getting a border deal now.
Speaker 4: Even when President Trump was president, we had days of
Speaker 4: more than four thousand people illegally crossing our border a day.
Speaker 4: We had huge spike days even during that time period.
Speaker 4: If we don't actually fix the loopholes in the law,
Speaker 4: regardless of who's president, that's never going to get better.
Speaker 2: Joining me is Leon Fresco of Honda Night, the former
Speaker 2: head of the Office of Immigration Litigation at the Justice Department. Leon,
Speaker 2: what stands out to you in this bill is it's
Speaker 2: going to be.
Speaker 1: Up to the eye of the beholder in terms of
Speaker 1: what people want to do moving forward. If people want
Speaker 1: to build a long term structure that will reduce the
Speaker 1: number of people coming across the border, albeit not immediately,
Speaker 1: it will take some time, then this bill is a
Speaker 1: bill they should consider voting for because at the end
Speaker 1: of the day, the things this bill does is it
Speaker 1: provides a ceiling on a worst case scenario in the border, which,
Speaker 1: depending on who the president is, could be either four
Speaker 1: thousand people. That's when that ceiling can be enacted, and
Speaker 1: then it must be enacted at border crossing levels of
Speaker 1: five thousand per day. And when that happens, they're basically
Speaker 1: at shut down, which means that people cannot come across anymore.
Speaker 1: They're just immediately removed. You can't ask for a side,
Speaker 1: you can't ask for anything else, you immediately get turned back. Now,
Speaker 1: to do that, there's gonna be a infrastructure that's going
Speaker 1: to need to be built over the course of time,
Speaker 1: where people are put in place to put in that infrastructure.
Speaker 1: Because there's another system that gets put in place where
Speaker 1: people can ask for asylum through a different screening process,
Speaker 1: and that process will always have at a bare minimum
Speaker 1: fourteen hundred people per day. That process is going to
Speaker 1: take some time to need to get us to speed,
Speaker 1: and so there's gonna be some bumpiness as that process
Speaker 1: moves forward. Now, having said that, there are some challenges
Speaker 1: on both sides of the equation. On the left side
Speaker 1: of the equation, there's still the grumbling of why was
Speaker 1: this border enforcement bill done, paired with Ukraine and other funding,
Speaker 1: and that's part of some larger overhaul of the entire
Speaker 1: immigration system. So that's the griping on the left, and
Speaker 1: you're seeing Bernie Fenders, Bob Menendez, and Alex Padilla saying
Speaker 1: that's they have three Democratic senators saying that and then
Speaker 1: on the right you have this idea of the borders
Speaker 1: should just be closed, period and there should be no
Speaker 1: number of people at the end of the day who
Speaker 1: are forbidded to cross to make asylum claims, and the
Speaker 1: story all the asylum planes should either be made in
Speaker 1: Mexico or not made at all. It's unclear, and so
Speaker 1: that part is a little bit also troubling, because you
Speaker 1: want to be a nation of laws and you want
Speaker 1: to be a nation of immigrants and of values. They
Speaker 1: want to do both, and it's unclear if there's space
Speaker 1: even for any asylum seekers to present themselves in any
Speaker 1: forum under a conservative plan. But nevertheless, that's where we're left.
Speaker 1: And then there's people saying that Biden should just do
Speaker 1: this on his own, which the problem is not even
Speaker 1: Trump nor Biden could do this on their own. There
Speaker 1: is this legislative need to actually put in such changes
Speaker 1: to the asylum system. But for now it's politically expedient
Speaker 1: to say that Biden could do this on his own
Speaker 1: when he really can't.
Speaker 2: Why can he Why can't he issue an executive order?
Speaker 1: So the most he can do is what Trump started
Speaker 1: to try to do, which was this process called remain
Speaker 1: in Mexico, which is, take people who are into the
Speaker 1: United States and move them back into Mexico for processing
Speaker 1: of their immigration cases in Mexico. You couldn't just stop it.
Speaker 1: You couldn't just ban it, which is what people are
Speaker 1: saying now. You'd have to continue processing their cases in Mexico.
Speaker 1: And so that requires a lot of cooperation with Mexico
Speaker 1: because these people need to actually be there, they need
Speaker 1: to be reachable for the purposes of their cases. There
Speaker 1: needs to be an infrastructure that set up. Mexico needs
Speaker 1: to agree to accept people from other countries to allow
Speaker 1: them to wait in Mexico while their asylum playing is pending,
Speaker 1: as opposed to then if somebody gets supported to Mexico,
Speaker 1: Mexico can then deport them back to a different country
Speaker 1: that's not permitted here, because those people actually have to
Speaker 1: stay to be able to make their claim in the
Speaker 1: United States. And so even at the height of the
Speaker 1: Trump levels of remain in Mexico, we were not doing
Speaker 1: more than a few hundred people like this to day.
Speaker 1: And so if we're talking about five thousand people per day,
Speaker 1: we've not had that yet. There's no infrastructure yet for
Speaker 1: that arrangement, and that's what Biden can do. He can't
Speaker 1: just ban people from asking for asylum. That's where he
Speaker 1: needs a new statutory hook for that, as the Ninth
Speaker 1: Circuit has twice, once un they're Trump and now on
Speaker 1: they're Biden says, you can't ban people from applying for
Speaker 1: asylum in the United States. Instead, you can do this
Speaker 1: remain in Mexico, but you would need to build this infrastructure.
Speaker 1: And for the purposes of the political side of this,
Speaker 1: nobody thinks you could actually ramp that up now by
Speaker 1: the time they would make any difference for election day,
Speaker 1: it would still take a lot of time. And so
Speaker 1: that's where people are stuck at the moment.
Speaker 2: Under the bill, it would expedite the asylum processing timeline
Speaker 2: from years to six months. Wouldn't that require a lot
Speaker 2: more people.
Speaker 1: Well, yes, they're doing two things. They're hiring about four
Speaker 1: thousand new people, but they're also ending the situation where
Speaker 1: people go to immigration court for their cases. There would
Speaker 1: just basically be a screening up front by a new
Speaker 1: screening division of what is called US Citizenship and Immigration Services.
Speaker 1: So that's the people who do the legal immigration part
Speaker 1: of the American system. So they would hire a new
Speaker 1: refugee corps of about four thousand people in it, and
Speaker 1: those people would do an initial screening, and one of
Speaker 1: three things could happen at that initial screening. Either the
Speaker 1: person could be immediately disqualified and then would be removed
Speaker 1: subject to an appeal. That's the proposedly would take place
Speaker 1: within seventy two hours. We'll see if it can actually
Speaker 1: take place so quickly, but nevertheless, that would be one option.
Speaker 1: The second option would be the case would be so
Speaker 1: compelling that it would be obvious this person actually qualified
Speaker 1: for asylum and you wouldn't need some lengthy trial. So,
Speaker 1: for instance, if people were fleeing a well known holocaust
Speaker 1: that's happening in some country, then everybody well, no, oh, yeah,
Speaker 1: you're from ex country, there is a holocaust in that country.
Speaker 1: We get it, okay, so end the story. So those
Speaker 1: people would not need to go through the whole machinations
Speaker 1: of a trial or three. You then actually have a
Speaker 1: longer proceeding that's supposed to take place within six months.
Speaker 1: That will then be the final distermination about whether you
Speaker 1: win asylum or not.
Speaker 2: Does this peel have any effect on the migrants who
Speaker 2: have come into the country the last year. Does it
Speaker 2: affect No.
Speaker 1: No, And that's a big criticism of the Republicans is
Speaker 1: for the people that have come in this year and
Speaker 1: last year and the year before, there is to be
Speaker 1: some larger organization in place in terms of authority to
Speaker 1: remove those people. Now, what there will be is there's
Speaker 1: a lot more funding for ICE to try to engage
Speaker 1: in removal processes, and there's more funding for immigration courts
Speaker 1: to try to have more cases done. But really, at
Speaker 1: the end of the day, those things take time because
Speaker 1: one ICE can't do anything unless the people involved have
Speaker 1: a removal order. So they've got to now finish the
Speaker 1: immigration court system. And the thing is, you can spend
Speaker 1: all the money you want on immigration court, but at
Speaker 1: the end of the day, these these buildings are finite buildings,
Speaker 1: meaning you can only put judges in so many places
Speaker 1: in these buildings. So you'll either need to get more
Speaker 1: buildings for people to have more cases, or you'll have
Speaker 1: to have more of these very unsatisfactory video conference hearings
Speaker 1: where people are having all kinds of trouble hearing one another,
Speaker 1: and really you would be very disappointed in the kind
Speaker 1: of just this that happened in these video conference theories.
Speaker 1: But that would be another alternative. But if you wanted
Speaker 1: to do it right, where there was more capacity in
Speaker 1: an actual courtroom for people to actually do their cases,
Speaker 1: that's going to take time to implement.
Speaker 2: Coming up next, Texas Governor Greg Abbott gathers other Republican
Speaker 2: governors at the border to try to ratchet up the
Speaker 2: pressure on the Biden administration. You're listening to Bloomberg from
Speaker 2: Bloomberg Radio.
Speaker 4: I think it's awesome because what's fixing to happen is
Speaker 4: that Greg Abbott is probably going to mop the floor
Speaker 4: with Joe Biden.
Speaker 2: That was one of the protesters in a convoy that
Speaker 2: started in Virginia and travel through nine states before reaching
Speaker 2: Texas this weekend to rally in support of Texas Governor
Speaker 2: Greg Abbot's defiance of the federal government. More than a
Speaker 2: dozen Republican governors also travel to Texas to support Abbot
Speaker 2: and to call on Biden to do more to secure
Speaker 2: the border. Abbot slam the Biden administration for what he
Speaker 2: claims is standing in the way of Texas defending its
Speaker 2: own border.
Speaker 1: The president is obligated by laws passed by Congress to
Speaker 1: actually secure the border and deny illegal entry.
Speaker 2: I've been talking to immigration law expertly on Fresco, a
Speaker 2: partner at Holland and Knight. Texas has already been deploying
Speaker 2: National Guard troops and state police officers since twenty twenty
Speaker 2: one on the border, and they started stringing up that
Speaker 2: wire in twenty twenty two. Explain what changed last month
Speaker 2: at Eagle Pass or Shelby Park.
Speaker 1: Well, what's happening is Texas is putting barriers up along
Speaker 1: private land that the federal government doesn't control. But the
Speaker 1: problem is those barriers are preventing the border patrol from
Speaker 1: accessing people crossing the United States. Which is it all
Speaker 1: depends how you look at it. Texas would say those
Speaker 1: barriers are preventing people from coming into Texas, so that's
Speaker 1: why they're there, and the Border patrol would say, no,
Speaker 1: that's preventing us from accessing the people try to come
Speaker 1: into Texas because we may need to give life saving care,
Speaker 1: or we may need to arrest them, or whatever the
Speaker 1: reason may be. And so you have this is completely
Speaker 1: opposite point of view depending on where you're looking at it.
Speaker 1: And so the federal government suit has said you can't
Speaker 1: do this. You can't have this blockade that prevents the
Speaker 1: border patrol from being able to patrol the border, and
Speaker 1: so you have an injunction right now or a stay
Speaker 1: essentially where five Supreme Court justices agreed. And now the
Speaker 1: question is, well, what is the Biden administration willing to do,
Speaker 1: because the only authority they have is to cut down
Speaker 1: this wiring, that's what they have. From that perspective, do
Speaker 1: they want to do that if it's going to lead
Speaker 1: to some sort of violent confrontation and so we haven't
Speaker 1: seen that happen yet, and that's the issue really at
Speaker 1: the end of the day. I mean, yes, they can
Speaker 1: hold the governor in content, but in order to hold
Speaker 1: the governor in contempt, even all of this is just paperwork.
Speaker 1: So fine, you hold the governor in contempt. Now what
Speaker 1: are you still going and trying to cut down the wiring?
Speaker 1: And if you are, that's where the violence could take place.
Speaker 1: So the court becomes irrelevant here, and this is where
Speaker 1: you saw some of these Sunday shows are people asking
Speaker 1: is that an acceptable concervative position to basically nullify a
Speaker 1: court and make them irrelevant, Because at the end of
Speaker 1: the day, what's going to have to happen is there's
Speaker 1: going to have to be a violent confrontation in order
Speaker 1: to bring down those wires. That's the problem that's happening
Speaker 1: in Texas right now, and it's unclear how is how
Speaker 1: that would end.
Speaker 2: So is Texas then not strictly defying the Supreme Court
Speaker 2: order because the Biden administration hasn't go on there and
Speaker 2: said we want to go and cut these wires.
Speaker 1: Correct, That's the problem is we're in this cold war
Speaker 1: where nobody's trying, say, heating the war yet because in
Speaker 1: the customs and Border protection, if they try to cut
Speaker 1: the wire, will this lead to a violent confrontation or
Speaker 1: will it just be permitted? And only when that answer
Speaker 1: evolved do we know if Texas is in contents of
Speaker 1: quart or not.
Speaker 2: And in the meantime, Texas is preventing any migrants from
Speaker 2: crossing at that particular point.
Speaker 1: Correct, people are now dispersing into other parts of Texas
Speaker 1: and into Arizona and into California and in through the water.
Speaker 1: And so these things always operate in a sort of
Speaker 1: air in the balloon way where the air will go
Speaker 1: to a different part of the balloon. If you sleeze
Speaker 1: on another part of the balloon, but also the numbers
Speaker 1: are less because of the weather. You're seeing colder weather,
Speaker 1: and so we will see how this all ends up
Speaker 1: shaking up. But when the spring comes, is there's no
Speaker 1: new authority, there's going to be numbers, and we'll see
Speaker 1: if Texas tries to do this in other parts of Texas.
Speaker 1: The other thing that makes this complicated is all of
Speaker 1: that land is private land, and so there are private
Speaker 1: ranchers and landowners that may not want Texas doing this,
Speaker 1: or they may say, hey, look you're taking my property.
Speaker 1: You owe me a lot of money for doing this,
Speaker 1: and so that's where this stuff starts to get more
Speaker 1: complicated than in this area that's a park.
Speaker 2: Abba has been trying to justify his actions at the
Speaker 2: border by calling this an invasion, referring to language and
Speaker 2: Article one, Section ten. Does that make his argument any
Speaker 2: stronger than say Arizona's was so many years ago.
Speaker 1: There are two arguments. One the we're just supplementing the
Speaker 1: federal government three sources and what Congress wanted the federal
Speaker 1: government to do. That's the Arizona argument, and that argument failed,
Speaker 1: and so what would be recalled wired is for the
Speaker 1: five justices Kavanaugh, Alito, Borsic Thomas, and Cony Barrett. It
Speaker 1: would require those fives to come in control and say, yes,
Speaker 1: we're going to overturn Arizona, which I don't know because
Speaker 1: Cony Barrett didn't do it with regards to this Eagle
Speaker 1: Pass case. So you start to think she would probably
Speaker 1: side with maintaining the Arizona president given that the basic
Speaker 1: ideals of the Arizona president are what led to this
Speaker 1: wire case where she ruled in favor of the federal government.
Speaker 1: So from that perspective, that one's not probably gonna work,
Speaker 1: and I think Texas now realizes this. So they switched
Speaker 1: to this invasion logic, which is that at the end
Speaker 1: of the day, the federal government has a duty to
Speaker 1: protect states from invasion, and if not, the states can
Speaker 1: take the matters into their own hands. But again, the
Speaker 1: invasion has to have a different character than the one
Speaker 1: that this is because the law is pretty clear there
Speaker 1: has to be a of the country that's doing the invading,
Speaker 1: and it has to be a declaration of war and
Speaker 1: all of these other things, and there's none of that.
Speaker 1: You know, there's times you can't say that there's a
Speaker 1: specific country who's engineering this for the purposes of invading
Speaker 1: the United States, because people are coming from everywhere, and
Speaker 1: so you know that's both a bad fact for the
Speaker 1: Bide administration politically, but for this legal case, it makes
Speaker 1: them much harder to argue there's an actual invasion per.
Speaker 2: Se Lee and I also want to ask you about
Speaker 2: the situation in New York, which has been struggling with
Speaker 2: the nearly two hundred thousand migrants who have arrived in
Speaker 2: the city in the last two years. A group of
Speaker 2: migrants who attacked two police officers, and most of those
Speaker 2: have been released, some without any bail. Supposedly three took
Speaker 2: a bus out of the city. Only one remains in jail.
Speaker 2: Here's what Mayor Adams had to say.
Speaker 1: Have you assaught police officers on the street?
Speaker 3: I believe if you've found guilty, you should be the
Speaker 3: federal government should do their job of deploying that person.
Speaker 1: So there's a bunch of different issues. So there's the
Speaker 1: first issue of when you enter the United States, one
Speaker 1: of three things is happening with these individuals. Either they've
Speaker 1: actually gone through the process of establishing a credible fear
Speaker 1: that they are facing persecution, if they get supported back
Speaker 1: that's that they are free and they are able to
Speaker 1: walk around the United States while their case is pending.
Speaker 1: That's option number one. Option number two is they never
Speaker 1: even did that. There were just so many people on
Speaker 1: a specific day that they crossed that literally I just
Speaker 1: said to them, go into America and we'll figure out
Speaker 1: what your court date is later. And so that could
Speaker 1: be the group that they're in. That's an option. Or third,
Speaker 1: people could have fucking in that situation. But in any
Speaker 1: of those three scenarios, they're now here. What happens is
Speaker 1: if you commit a crime like the police beatings that
Speaker 1: we saw, there's two different determinations that happen. Number one,
Speaker 1: there is does the criminal entity, meaning in this case,
Speaker 1: New York want to put this person into bail or
Speaker 1: in detention, And that doesn't matter whether that person is
Speaker 1: a citizen or the person who has the most illegal
Speaker 1: status in history. That they have to make that decision
Speaker 1: based on the crime and the law. And so New
Speaker 1: York has laws that people criticize for being very weak
Speaker 1: on who gets bail and who has to be in detention.
Speaker 1: And so that's one issue that has nothing to do
Speaker 1: with the immigration status. So there's a first question, why
Speaker 1: is anybody, no matter what their status is, who's beating
Speaker 1: police officers not in jail? Fair enough? So New York
Speaker 1: doesn't put those people into detention. They're free. Now there's
Speaker 1: an ice question, will I put those people in detention?
Speaker 1: I certainly has the ability to put anybody at once
Speaker 1: in removal proceedings into immigration detention on the grounds that
Speaker 1: they are a danger to society. They certainly can do that.
Speaker 1: And the question is can I now find these people?
Speaker 1: And I think what happened was these people are scondent
Speaker 1: now and so it's a little bit trickier to find them.
Speaker 1: But if I find them, I certainly can put them
Speaker 1: in immigration detention while they're immigration removal cases pending. But
Speaker 1: it may not want to remove these people while they're
Speaker 1: criminal cases pending, because what you don't want to do.
Speaker 1: This is a misnomer that people make all the time.
Speaker 1: They say, why don't you just support the person and
Speaker 1: just end this all? But the problem is if you
Speaker 1: deport people without making them face their criminal sanctions, then
Speaker 1: what happens is, let's say somebody could murder somebody and
Speaker 1: you just support them so they never go to jail,
Speaker 1: and then one week later they're back in the US
Speaker 1: and they're a murderer. So you don't want that. You
Speaker 1: want the person in detention because you have to assume
Speaker 1: there's a high likelihood that they find some way to
Speaker 1: sneak back in to America. So you have to make
Speaker 1: them serve their criminal sentence. So you have to time
Speaker 1: this properly to have ice have the people in detention
Speaker 1: while they're waiting for their New York criminal things and
Speaker 1: whatever those New York criminal thingtions are over, then you
Speaker 1: proceed with the removal.
Speaker 2: Every time I think I understand immigration law, something else
Speaker 2: happens that proves that I don't. That's why we have you, Leon,
Speaker 2: Thanks so much for explaining all the ins and outs
Speaker 2: to us. That's Leon Fresco, a partner hollanden Knight. And
Speaker 2: that's it for this edition of the Bloomberg Law Podcast.
Speaker 2: Remember you can always get the latest legal news by
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,
Speaker 2: and at Bloomberg dot com, slash podcast Slash Law. I'm
Speaker 2: June Grosso and this is Bloomberg