WEBVTT - West Point Race Conscious Admissions & Border Bill 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.160 --> 0:00:13.280 The Supreme Court will not force West Point to drop 0:00:13.360 --> 0:00:16.880 its consideration of race and admissions, at least for now. 0:00:17.239 --> 0:00:20.680 On Friday, with a two sentence unsigned order and no 0:00:20.840 --> 0:00:24.959 public descents, the Justices turned down the group that won 0:00:25.040 --> 0:00:29.760 the blockbuster decision last year banning affirmative action in colleges 0:00:29.800 --> 0:00:33.720 and universities. The Court said, quote, the record before this 0:00:33.840 --> 0:00:38.000 Court is underdeveloped, and this order should not be construed 0:00:38.040 --> 0:00:42.120 as expressing any view on the merits of the constitutional question. 0:00:42.600 --> 0:00:45.479 My guest is Audrey Anderson, head of the higher education 0:00:45.680 --> 0:00:50.600 practice at bass Berry and Simms. Audrey start by reminding 0:00:50.720 --> 0:00:55.640 us about that affirmative action decision and the footnote that 0:00:55.680 --> 0:00:57.120 the Chief Justice dropped. 0:00:58.600 --> 0:01:02.480 Sure in the case against Harvard and the University of 0:01:02.760 --> 0:01:06.480 North Carolina at Chapel Hill, the Supreme Court held that 0:01:07.040 --> 0:01:11.920 colleges and universities could not use race and admissions where 0:01:11.959 --> 0:01:15.560 they were doing so for the educational benefits of a 0:01:15.600 --> 0:01:19.560 diverse student body. In that case, though, they dropped a 0:01:19.600 --> 0:01:24.520 footnote in the decision saying that what we're doing today 0:01:25.240 --> 0:01:30.319 doesn't say anything about the use of race in our 0:01:30.440 --> 0:01:37.520 nation's military academies, because the military academies may have potentially 0:01:37.720 --> 0:01:43.240 distinct interests from the civilian colleges and universities. And they 0:01:43.360 --> 0:01:46.280 dropped that footnote because the United States had filed an 0:01:46.319 --> 0:01:50.480 amicas brief saying that they used race as a factor 0:01:50.480 --> 0:01:55.000 in admitting students to the military academies, and they did 0:01:55.040 --> 0:01:58.920 so for all the reasons that civilian colleges and universities did. 0:01:59.400 --> 0:02:02.680 But then in addition to that, the military academies also 0:02:02.800 --> 0:02:07.120 had additional national security based interests that supported their use 0:02:07.160 --> 0:02:09.760 of race. So the court said, look, in this case 0:02:09.800 --> 0:02:13.400 against UNC and Harvard, we're not ruling on any of 0:02:13.400 --> 0:02:18.880 those different interests that the military academies might have. So 0:02:19.400 --> 0:02:23.240 unlike all the civilian college and universities, there isn't one 0:02:23.240 --> 0:02:26.639 of them that now says that they are using race 0:02:26.680 --> 0:02:31.120 as a factor in admissions. Everybody stopped. But at West 0:02:31.120 --> 0:02:34.840 Point and at the Naval Academy, they still say that 0:02:35.040 --> 0:02:36.760 we're going to use race and admissions. 0:02:37.360 --> 0:02:40.200 Do we know exactly how they use race and admissions? 0:02:40.680 --> 0:02:45.040 From the filings in the court cases that are pending 0:02:45.120 --> 0:02:48.240 right now, we can see how they use race and admissions. 0:02:48.280 --> 0:02:51.480 I'm not as familiar with how the Naval Academy uses race, 0:02:51.560 --> 0:02:56.400 But for West Point, the papers show us that it 0:02:56.560 --> 0:03:00.959 is done in a different way than at civil colleges 0:03:01.000 --> 0:03:04.440 and universities. And that's because you get into West Point 0:03:04.520 --> 0:03:06.720 in a different way than you get into a usual 0:03:06.720 --> 0:03:10.520 college or university. Almost everybody who gets into West Point 0:03:10.680 --> 0:03:14.840 gets in through a nomination from a member of Congress. 0:03:14.960 --> 0:03:19.280 And what West Point says is that for those applicants 0:03:19.280 --> 0:03:22.480 who get in through a nomination from a member of Congress, 0:03:22.720 --> 0:03:26.079 there's no consideration of race at all in those applications. 0:03:26.639 --> 0:03:29.560 They get scored through something called the whole candidate score 0:03:29.639 --> 0:03:34.240 that does not take race into account. However, after those 0:03:34.440 --> 0:03:37.560 applicants are admitted, there are some additional spaces left in 0:03:37.560 --> 0:03:40.400 the class. First, I can tell the papers haven't told 0:03:40.480 --> 0:03:43.400 us how many spaces in the class are still open. 0:03:43.480 --> 0:03:47.320 After that, and then there are a couple of buckets, 0:03:47.360 --> 0:03:51.520 one called additional Applicants bucket, which is for people who 0:03:51.760 --> 0:03:55.040 were nominated by a member of Congress but didn't get 0:03:55.040 --> 0:03:57.600 in through that route, so you can get in that way. 0:03:57.680 --> 0:04:01.520 Those applicants are considered by race. Also, the superintendent of 0:04:01.600 --> 0:04:06.480 the Academy can nominate people to be admitted to the academy, 0:04:06.880 --> 0:04:10.000 so those folks get in with race being considered also. 0:04:10.200 --> 0:04:14.760 And then there's this third process that is the analog 0:04:14.920 --> 0:04:19.320 to early decision at a civilian university, which is called 0:04:19.360 --> 0:04:24.160 a letter of acceptance. So applicants can apply for a 0:04:24.240 --> 0:04:27.320 letter of acceptance kind of at the front end of 0:04:27.360 --> 0:04:31.000 the process. And if you get a letter of acceptance 0:04:31.440 --> 0:04:34.359 early on, but then for some reason you don't get 0:04:34.360 --> 0:04:39.240 in through the regular process of getting in through a 0:04:39.279 --> 0:04:42.520 member of Congress, west Point says we will find a 0:04:42.560 --> 0:04:45.160 spot for you. It sounds to me like kind of 0:04:45.200 --> 0:04:49.400 like a guarantee in handing out those letters of acceptance 0:04:49.880 --> 0:04:51.279 they also consider race. 0:04:52.000 --> 0:04:55.640 This suit was brought against West Point by Students for 0:04:55.680 --> 0:04:59.880 Fair Admissions. That's the group behind all these lawsuits challenging 0:05:00.160 --> 0:05:04.919 affirmative action in colleges and universities. And in reaction to 0:05:05.000 --> 0:05:09.119 this decision, the group issued a statement, and it seemed 0:05:09.120 --> 0:05:13.360 to me they were misinterpreting the Chief Justice's footnote. They 0:05:13.360 --> 0:05:16.800 said the Supreme Court didn't address military academies in that 0:05:16.920 --> 0:05:20.960 decision only because the Court didn't know how they used race. 0:05:21.480 --> 0:05:23.680 That's not what the Chief Justice said, is it? 0:05:24.560 --> 0:05:27.040 No, it's not. I think that they're selling the court short. 0:05:27.080 --> 0:05:30.640 I think the court was more talking about we're not 0:05:30.720 --> 0:05:34.240 discussing these because the military academies are putting forth a 0:05:34.360 --> 0:05:38.440 different interest, a different purpose for using race. So I 0:05:38.480 --> 0:05:41.119 think there's two things the courts didn't know. First of all, 0:05:41.400 --> 0:05:44.760 we need to look at this whatever different interest the 0:05:44.760 --> 0:05:48.039 military is putting forward. They're saying, yeah, we have the 0:05:48.080 --> 0:05:51.560 same educational interest everybody else has, but we also have 0:05:51.720 --> 0:05:55.720 a national security based interest that requires us to use race. 0:05:55.880 --> 0:05:58.560 I think that's what they were really talking about when 0:05:58.560 --> 0:06:03.800 they talk about potentially distinct legal interests. So it's does 0:06:03.800 --> 0:06:08.400 the military have a different compelling interest that supports the 0:06:08.480 --> 0:06:11.039 use of race? And then the second part then is 0:06:11.160 --> 0:06:14.560 are they using it in a narrowly tailored way, which 0:06:14.600 --> 0:06:17.239 is what SFFA is talking about. They didn't know how 0:06:17.279 --> 0:06:18.599 they were using race. 0:06:19.720 --> 0:06:23.359 So students for Fair Admissions ask for an injunction, and 0:06:23.480 --> 0:06:27.520 the Supreme Court said no in an order, and it's 0:06:27.560 --> 0:06:31.840 sort of uncommon. There was a two sentence statement. It said, 0:06:32.440 --> 0:06:35.960 the record before this Court is underdeveloped, and this order 0:06:36.000 --> 0:06:38.919 should not be construed as expressing any of you on 0:06:38.960 --> 0:06:43.600 the merits of the constitutional question. There were no public descents, 0:06:43.680 --> 0:06:46.920 not even from you know, the super conservative justices who 0:06:46.960 --> 0:06:50.520 have long opposed affirmative action. And even though they say, 0:06:50.600 --> 0:06:53.520 don't construe this in any way, we still try to 0:06:53.560 --> 0:06:56.080 look behind it. So what do you make of their statement? 0:06:56.600 --> 0:07:00.080 Well, what I make of their statement is that, but 0:07:01.000 --> 0:07:06.000 if the whole court had not agreed to make that statement, 0:07:06.279 --> 0:07:08.440 that we're not saying anything on the merits of the 0:07:08.440 --> 0:07:13.320 constitutional question, you would have had some of the more 0:07:13.440 --> 0:07:17.600 conservative members of the Court dissenting saying we need to 0:07:17.640 --> 0:07:19.960 put an injunction in place right now because this is 0:07:20.000 --> 0:07:24.680 so clearly unconstitutional. Didn't you read our opinion? That's how 0:07:24.720 --> 0:07:26.240 I read that. I mean, I think you also have 0:07:26.320 --> 0:07:30.480 to look at you in the very aggressive litigation position 0:07:31.200 --> 0:07:34.680 that Students for Fair Admissions took in this case, that 0:07:34.920 --> 0:07:38.600 once their injunction was denied by the district court, they 0:07:38.680 --> 0:07:43.600 filed for emergency injunctive relief from the Second Circuit. And 0:07:43.640 --> 0:07:47.360 then even before the Second Circuit ruled, and not even 0:07:47.400 --> 0:07:50.440 two weeks after oral argument at the Second Circuit, they 0:07:50.520 --> 0:07:55.400 filed their motion for emergency injunctive relief before the Supreme Court, 0:07:56.360 --> 0:08:00.160 saying it is so urgent that you take action that 0:08:00.200 --> 0:08:02.640 you need to take action even before the Court of 0:08:02.680 --> 0:08:06.400 Appeals can rule on this. So they were going with 0:08:06.560 --> 0:08:12.239 a very very aggressive position in this case and making, 0:08:12.440 --> 0:08:14.680 you know, an argument that, oh, it is so clear, 0:08:14.800 --> 0:08:20.280 we don't even need any factual development. And for somebody 0:08:20.360 --> 0:08:26.800 who just basically believes that there is a color blind constitution, 0:08:28.200 --> 0:08:32.920 that's probably a very appealing argument. So that's what I 0:08:32.960 --> 0:08:33.920 think is going on there. 0:08:34.280 --> 0:08:37.160 I mean, they've been aggressive, but their cases have been 0:08:37.200 --> 0:08:39.319 going on for years and years and years. Why do 0:08:39.360 --> 0:08:42.119 you think there were so aggressive in this instance. 0:08:42.800 --> 0:08:45.400 Well, I think they're so aggressive partly because they really 0:08:45.440 --> 0:08:49.679 believe in their in their argument, and they honestly believe 0:08:49.880 --> 0:08:53.120 that white people are being hurt by not being able 0:08:53.160 --> 0:08:55.160 to go to West Point. I do believe that that 0:08:55.320 --> 0:08:57.920 is part of what is motivating them. But I think 0:08:57.960 --> 0:09:01.400 that they are also they are hoping to get as 0:09:01.600 --> 0:09:06.199 much out of the Harvard and UNC decision as they 0:09:06.320 --> 0:09:09.920 possibly can. They got a big win there, and they're 0:09:10.240 --> 0:09:13.400 kind of saying, well, let's see just how much we 0:09:13.480 --> 0:09:16.199 can get out of it. Maybe we can get out 0:09:16.240 --> 0:09:20.400 of it an injunction immediately to stop West Point. So 0:09:20.559 --> 0:09:23.400 I think that the really interesting question that I haven't 0:09:23.440 --> 0:09:25.800 figured out an answer to and it could because I 0:09:25.960 --> 0:09:29.080 just haven't really dived into all the details of the 0:09:29.559 --> 0:09:34.160 Naval Academy case. Is that their strategy in the Naval 0:09:34.200 --> 0:09:37.880 Academy case is quite different. They lost at the District 0:09:37.960 --> 0:09:41.800 Court for very similar reasons. The district Court said, we 0:09:41.840 --> 0:09:45.120 don't have enough facts here. In order to do strict scrutiny, 0:09:46.200 --> 0:09:50.680 we really need a factual record to scrutinize, and at 0:09:50.720 --> 0:09:55.400 this early stage, with no discovery, with no exchange of information, 0:09:55.920 --> 0:09:59.439 we don't have that factual record that we can scrutinize. 0:09:59.480 --> 0:10:01.959 So we've got to get some facts before we can 0:10:02.080 --> 0:10:05.520 do strict scrutiny. And on that one, the District Court 0:10:05.600 --> 0:10:09.480 ruled and Students for Fair Admissions has not appealed, no 0:10:09.640 --> 0:10:13.320 less gone for an emergency injunction. They're just letting the 0:10:13.360 --> 0:10:17.520 case play out, as often happens in litigation. So they've 0:10:17.559 --> 0:10:21.800 started discovery in that matter and have a trial set 0:10:21.840 --> 0:10:24.720 for the fall. So it's really interesting to me. I 0:10:24.760 --> 0:10:28.520 don't know why they treated the Naval Academy case differently 0:10:28.559 --> 0:10:30.160 than the West Point case. 0:10:30.480 --> 0:10:34.120 And the West Point case now is back on the 0:10:34.280 --> 0:10:35.080 ordinary track. 0:10:36.240 --> 0:10:39.840 Well, no, because they still have an appeal pending before 0:10:39.920 --> 0:10:43.360 the Second Circuit. So that case now, it kind of 0:10:43.400 --> 0:10:47.200 ironically will likely be slowed down because the district Court 0:10:47.280 --> 0:10:51.800 probably won't do anything with it until the Second Circuit rules. 0:10:51.840 --> 0:10:54.160 And all the Second Circuit has done now is to 0:10:54.200 --> 0:11:00.520 say we're denying your requests for immediate relief. Said, hey, 0:11:00.559 --> 0:11:04.080 Second Circuit, while you're deciding our appeal, you need to 0:11:04.200 --> 0:11:07.560 enter an injunction right now and then decide the appeal. 0:11:08.240 --> 0:11:10.800 So the Second Circuits said, okay, well, we've got this appeal, 0:11:10.840 --> 0:11:12.960 but we're not going to give you immediate relief while 0:11:13.000 --> 0:11:15.920 we're deciding it. We're going to decide the appeal now. 0:11:16.080 --> 0:11:18.360 So they still have to decide the appeal in the 0:11:18.400 --> 0:11:20.959 Second Circuit, So that's going to slow them down a 0:11:21.000 --> 0:11:22.640 little bit. In the West Point case. 0:11:22.640 --> 0:11:27.040 How have universities been dealing with the Supreme Court's affirmative 0:11:27.040 --> 0:11:32.080 action decision? Have they been considering race holistically? 0:11:32.880 --> 0:11:35.440 No one is saying that they're considering race anymore. So 0:11:35.480 --> 0:11:38.640 I have to imagine that they have all stopped using race. 0:11:38.679 --> 0:11:42.920 They all changed their admissions policies to stop using race 0:11:43.040 --> 0:11:45.240 as a factor, because the Supreme Court said to do 0:11:45.320 --> 0:11:48.960 so is unconstitutional and we will have to see after 0:11:49.000 --> 0:11:53.120 this admission cycle what difference that makes, if any, in 0:11:53.200 --> 0:11:56.600 the diversity of the classes that they end up with. 0:11:57.360 --> 0:12:02.239 Dartmouth's College will once again require standardized testing for applicants. 0:12:02.679 --> 0:12:07.199 It's following MIT in reversing a pandemic error shift away 0:12:07.200 --> 0:12:11.360 from tests such as the SAT and ACT. Dartmouth said 0:12:11.400 --> 0:12:14.920 in a statement today that restoring the testing mandate will 0:12:14.960 --> 0:12:19.320 help attract the most promising and diverse students to our campuses. 0:12:19.920 --> 0:12:22.200 I've been talking to Audrey Anderson, head of the higher 0:12:22.320 --> 0:12:27.040 education practice at Bass, Barry and Simms. Audrey Dartmouth says 0:12:27.080 --> 0:12:30.080 this is going to attract more diverse candidates. But I 0:12:30.160 --> 0:12:34.199 thought there was a complaint about standardized testing, that it's 0:12:34.360 --> 0:12:37.359 unfair to lower income students. 0:12:37.960 --> 0:12:41.000 I think it's really interesting June and they've Dartmouth did 0:12:41.040 --> 0:12:44.440 its own little study on this, and others have been 0:12:45.120 --> 0:12:49.880 doing studies as well about you know, if you're only 0:12:49.960 --> 0:12:58.720 looking at great point averages and teacher recommendations and extracurricular activities, 0:12:58.800 --> 0:13:03.160 if you have a student who coming from a disadvantage background, 0:13:03.840 --> 0:13:06.920 it can be hard for that student to stand out, 0:13:07.400 --> 0:13:12.199 and elite colleges may not be very familiar with their 0:13:12.280 --> 0:13:15.920 high school. If a student from one of those high 0:13:15.960 --> 0:13:19.719 schools gets a standardized test score, that might not be 0:13:19.800 --> 0:13:23.360 a quote unquote perfect score on the SAT or the ACT, 0:13:23.559 --> 0:13:26.680 but it's still a strong score. It is a way 0:13:26.760 --> 0:13:30.680 for that student to distinguish themselves. And from just the 0:13:30.760 --> 0:13:34.080 little bit I've read about the research that Dartmouth did 0:13:34.120 --> 0:13:37.040 and that others have done, it's a way for a 0:13:37.080 --> 0:13:40.880 school like Dartmouth that says, look, we will allow in 0:13:41.120 --> 0:13:44.360 students with a range of test scores, and when we 0:13:44.440 --> 0:13:47.160 look at test scores, we're going to consider a test 0:13:47.200 --> 0:13:51.360 score differently from a student that comes from a disadvantaged 0:13:51.679 --> 0:13:54.920 high school, disadvantaged background. Then we're going to look at 0:13:54.920 --> 0:13:59.520 a student from a school that's in a very affluent area, 0:13:59.640 --> 0:14:01.320 and that we're going to assume that student's got a 0:14:01.400 --> 0:14:05.280 very affluent background. So we think that we should and 0:14:05.400 --> 0:14:09.239 what the Furthermore, their study found they looked at students 0:14:09.320 --> 0:14:13.040 who applied from lower income backgrounds and chose not to 0:14:13.120 --> 0:14:17.440 report their test scores, but they somehow found out what 0:14:17.600 --> 0:14:20.800 those test scores were, and they found that some of 0:14:20.840 --> 0:14:24.640 those students Dartmouth did not accept who had not reported 0:14:24.680 --> 0:14:27.480 their test scores but said that if they'd reported their 0:14:27.520 --> 0:14:31.000 test scores, Dartmouth would have taken them, really because because 0:14:31.080 --> 0:14:34.120 the student thought their test score was too low, because 0:14:34.120 --> 0:14:37.560 it was probably well below the median score of what 0:14:37.640 --> 0:14:40.960 Dartmouth said was in their class, but based on their 0:14:41.040 --> 0:14:43.640 high school background, the people at Dartmouth are saying, well, 0:14:43.640 --> 0:14:45.920 we would have known that a student with that kind 0:14:45.920 --> 0:14:49.280 of test score from that high school was a very 0:14:49.320 --> 0:14:51.840 strong student because they don't have they didn't have a 0:14:51.920 --> 0:14:55.560 kind of academic background in high school that these other 0:14:55.640 --> 0:14:58.120 students had. So a score of fourteen hundred from that 0:14:58.280 --> 0:15:03.640 student is really a show a whole lot of academic strength. 0:15:04.000 --> 0:15:06.160 So that's really interesting. I think schools are going to 0:15:06.160 --> 0:15:08.240 be making a lot of different choices. But one of 0:15:08.280 --> 0:15:10.960 the things that was asked on one interview I saw 0:15:11.120 --> 0:15:13.400 that Dartmouth person was well, aren't you afraid that this 0:15:13.560 --> 0:15:16.120 data is going to make it easier for people like 0:15:16.160 --> 0:15:19.120 students for fair admissions to sue you and say that 0:15:19.200 --> 0:15:22.840 you're really using race and admissions because it might show 0:15:22.920 --> 0:15:27.320 that your students of color have lower average test scores 0:15:27.720 --> 0:15:30.840 than your white students. And the person from Dartmouth said, 0:15:30.840 --> 0:15:33.640 we're not worried about that we are really about access 0:15:33.720 --> 0:15:37.760 for students from disadvantaged backgrounds. But that is I mean, 0:15:37.760 --> 0:15:39.480 that's one of the things I've thought about for a 0:15:39.480 --> 0:15:41.960 long time is if you don't have that test score data, 0:15:42.440 --> 0:15:47.520 you've really taken probably the biggest arrow out of sffa's quiver. 0:15:47.680 --> 0:15:51.080 That's really what they rely on to show you must 0:15:51.080 --> 0:15:53.000 be discriminating on the basis of race. 0:15:53.280 --> 0:15:57.480 We'll see how many schools follow Dartmouth and MIT. Standardized 0:15:57.520 --> 0:16:00.400 testing is optional at this point at Harvard, which of 0:16:00.440 --> 0:16:04.840 course lost that Affirmative Action Supreme Court case. Thanks for 0:16:04.920 --> 0:16:08.880 some interesting insights, Audrey. That's Audrey Anderson of Bass, Barry 0:16:08.960 --> 0:16:12.320 and Simms. Let's turn now to the long awaited Senate 0:16:12.360 --> 0:16:15.920 bill on Border Security and Foreign Aid. The more than 0:16:16.000 --> 0:16:19.640 one hundred eighteen billion dollar compromise would crack down on 0:16:19.800 --> 0:16:23.520 illegal border crossings, make it harder to apply for asylum, 0:16:23.560 --> 0:16:28.000 and speed up deportations of undocumented migrants, but it now 0:16:28.040 --> 0:16:31.400 faces criticism from both the left and the right, the 0:16:31.400 --> 0:16:35.200 most serious threat coming from Republicans led by former President 0:16:35.280 --> 0:16:39.960 Donald Trump. Republican Senator James Langford, one of the bill's authors, 0:16:40.400 --> 0:16:44.480 has been trying to combat misinformation and stress the importance 0:16:44.480 --> 0:16:45.960 of getting a border deal now. 0:16:46.520 --> 0:16:49.080 Even when President Trump was president, we had days of 0:16:49.120 --> 0:16:52.080 more than four thousand people illegally crossing our border a day. 0:16:52.360 --> 0:16:55.240 We had huge spike days even during that time period. 0:16:55.480 --> 0:16:57.640 If we don't actually fix the loopholes in the law, 0:16:57.680 --> 0:17:00.000 regardless of who's president, that's never going to get better. 0:17:00.320 --> 0:17:03.240 Joining me is Leon Fresco of Honda Night, the former 0:17:03.280 --> 0:17:07.879 head of the Office of Immigration Litigation at the Justice Department. Leon, 0:17:07.920 --> 0:17:10.960 what stands out to you in this bill is it's 0:17:10.960 --> 0:17:11.400 going to be. 0:17:11.400 --> 0:17:14.080 Up to the eye of the beholder in terms of 0:17:14.080 --> 0:17:17.280 what people want to do moving forward. If people want 0:17:17.400 --> 0:17:22.399 to build a long term structure that will reduce the 0:17:22.520 --> 0:17:26.440 number of people coming across the border, albeit not immediately, 0:17:26.480 --> 0:17:29.520 it will take some time, then this bill is a 0:17:29.520 --> 0:17:31.840 bill they should consider voting for because at the end 0:17:31.840 --> 0:17:35.080 of the day, the things this bill does is it 0:17:35.200 --> 0:17:39.960 provides a ceiling on a worst case scenario in the border, which, 0:17:40.040 --> 0:17:43.040 depending on who the president is, could be either four 0:17:43.080 --> 0:17:47.080 thousand people. That's when that ceiling can be enacted, and 0:17:47.119 --> 0:17:49.760 then it must be enacted at border crossing levels of 0:17:49.800 --> 0:17:53.040 five thousand per day. And when that happens, they're basically 0:17:53.080 --> 0:17:56.960 at shut down, which means that people cannot come across anymore. 0:17:57.000 --> 0:18:00.000 They're just immediately removed. You can't ask for a side, 0:18:00.720 --> 0:18:04.600 you can't ask for anything else, you immediately get turned back. Now, 0:18:05.600 --> 0:18:09.119 to do that, there's gonna be a infrastructure that's going 0:18:09.200 --> 0:18:11.199 to need to be built over the course of time, 0:18:12.000 --> 0:18:15.720 where people are put in place to put in that infrastructure. 0:18:16.080 --> 0:18:18.960 Because there's another system that gets put in place where 0:18:19.000 --> 0:18:22.200 people can ask for asylum through a different screening process, 0:18:22.640 --> 0:18:25.240 and that process will always have at a bare minimum 0:18:25.240 --> 0:18:29.440 fourteen hundred people per day. That process is going to 0:18:29.520 --> 0:18:31.480 take some time to need to get us to speed, 0:18:32.119 --> 0:18:35.880 and so there's gonna be some bumpiness as that process 0:18:35.880 --> 0:18:40.240 moves forward. Now, having said that, there are some challenges 0:18:40.280 --> 0:18:42.680 on both sides of the equation. On the left side 0:18:42.680 --> 0:18:46.919 of the equation, there's still the grumbling of why was 0:18:46.960 --> 0:18:52.120 this border enforcement bill done, paired with Ukraine and other funding, 0:18:52.200 --> 0:18:55.119 and that's part of some larger overhaul of the entire 0:18:55.520 --> 0:18:59.560 immigration system. So that's the griping on the left, and 0:18:59.600 --> 0:19:03.400 you're seeing Bernie Fenders, Bob Menendez, and Alex Padilla saying 0:19:03.480 --> 0:19:06.960 that's they have three Democratic senators saying that and then 0:19:07.000 --> 0:19:10.960 on the right you have this idea of the borders 0:19:10.960 --> 0:19:14.199 should just be closed, period and there should be no 0:19:14.400 --> 0:19:17.359 number of people at the end of the day who 0:19:17.400 --> 0:19:20.399 are forbidded to cross to make asylum claims, and the 0:19:20.480 --> 0:19:23.560 story all the asylum planes should either be made in 0:19:23.680 --> 0:19:27.760 Mexico or not made at all. It's unclear, and so 0:19:27.960 --> 0:19:31.080 that part is a little bit also troubling, because you 0:19:31.119 --> 0:19:32.640 want to be a nation of laws and you want 0:19:32.680 --> 0:19:35.320 to be a nation of immigrants and of values. They 0:19:35.320 --> 0:19:38.800 want to do both, and it's unclear if there's space 0:19:39.040 --> 0:19:42.640 even for any asylum seekers to present themselves in any 0:19:42.680 --> 0:19:47.880 forum under a conservative plan. But nevertheless, that's where we're left. 0:19:47.960 --> 0:19:50.879 And then there's people saying that Biden should just do 0:19:51.000 --> 0:19:53.560 this on his own, which the problem is not even 0:19:53.600 --> 0:19:57.040 Trump nor Biden could do this on their own. There 0:19:57.200 --> 0:20:02.280 is this legislative need to actually put in such changes 0:20:02.320 --> 0:20:06.600 to the asylum system. But for now it's politically expedient 0:20:06.720 --> 0:20:09.639 to say that Biden could do this on his own 0:20:10.160 --> 0:20:11.560 when he really can't. 0:20:11.800 --> 0:20:14.480 Why can he Why can't he issue an executive order? 0:20:15.440 --> 0:20:19.359 So the most he can do is what Trump started 0:20:19.400 --> 0:20:21.919 to try to do, which was this process called remain 0:20:21.960 --> 0:20:26.760 in Mexico, which is, take people who are into the 0:20:26.920 --> 0:20:33.280 United States and move them back into Mexico for processing 0:20:33.320 --> 0:20:37.199 of their immigration cases in Mexico. You couldn't just stop it. 0:20:37.280 --> 0:20:39.000 You couldn't just ban it, which is what people are 0:20:39.040 --> 0:20:42.800 saying now. You'd have to continue processing their cases in Mexico. 0:20:43.359 --> 0:20:46.000 And so that requires a lot of cooperation with Mexico 0:20:46.080 --> 0:20:51.040 because these people need to actually be there, they need 0:20:51.080 --> 0:20:54.160 to be reachable for the purposes of their cases. There 0:20:54.200 --> 0:20:56.840 needs to be an infrastructure that set up. Mexico needs 0:20:56.840 --> 0:21:00.560 to agree to accept people from other countries to allow 0:21:00.600 --> 0:21:04.040 them to wait in Mexico while their asylum playing is pending, 0:21:04.359 --> 0:21:07.600 as opposed to then if somebody gets supported to Mexico, 0:21:07.640 --> 0:21:10.960 Mexico can then deport them back to a different country 0:21:11.440 --> 0:21:13.840 that's not permitted here, because those people actually have to 0:21:13.840 --> 0:21:16.080 stay to be able to make their claim in the 0:21:16.160 --> 0:21:19.280 United States. And so even at the height of the 0:21:19.320 --> 0:21:21.959 Trump levels of remain in Mexico, we were not doing 0:21:22.400 --> 0:21:24.800 more than a few hundred people like this to day. 0:21:25.320 --> 0:21:27.840 And so if we're talking about five thousand people per day, 0:21:28.480 --> 0:21:31.679 we've not had that yet. There's no infrastructure yet for 0:21:32.119 --> 0:21:35.280 that arrangement, and that's what Biden can do. He can't 0:21:35.320 --> 0:21:38.240 just ban people from asking for asylum. That's where he 0:21:38.320 --> 0:21:42.600 needs a new statutory hook for that, as the Ninth 0:21:42.640 --> 0:21:45.320 Circuit has twice, once un they're Trump and now on 0:21:45.359 --> 0:21:48.399 they're Biden says, you can't ban people from applying for 0:21:48.480 --> 0:21:52.320 asylum in the United States. Instead, you can do this 0:21:52.440 --> 0:21:55.800 remain in Mexico, but you would need to build this infrastructure. 0:21:55.840 --> 0:21:58.040 And for the purposes of the political side of this, 0:21:58.600 --> 0:22:01.960 nobody thinks you could actually ramp that up now by 0:22:02.000 --> 0:22:04.480 the time they would make any difference for election day, 0:22:04.520 --> 0:22:06.760 it would still take a lot of time. And so 0:22:07.040 --> 0:22:08.840 that's where people are stuck at the moment. 0:22:09.920 --> 0:22:14.640 Under the bill, it would expedite the asylum processing timeline 0:22:14.760 --> 0:22:18.960 from years to six months. Wouldn't that require a lot 0:22:19.000 --> 0:22:19.800 more people. 0:22:20.800 --> 0:22:23.240 Well, yes, they're doing two things. They're hiring about four 0:22:23.320 --> 0:22:26.640 thousand new people, but they're also ending the situation where 0:22:26.640 --> 0:22:29.920 people go to immigration court for their cases. There would 0:22:29.960 --> 0:22:34.240 just basically be a screening up front by a new 0:22:34.280 --> 0:22:38.760 screening division of what is called US Citizenship and Immigration Services. 0:22:38.800 --> 0:22:42.080 So that's the people who do the legal immigration part 0:22:42.200 --> 0:22:45.080 of the American system. So they would hire a new 0:22:45.119 --> 0:22:48.800 refugee corps of about four thousand people in it, and 0:22:48.920 --> 0:22:51.720 those people would do an initial screening, and one of 0:22:51.800 --> 0:22:55.040 three things could happen at that initial screening. Either the 0:22:55.080 --> 0:22:58.440 person could be immediately disqualified and then would be removed 0:22:58.560 --> 0:23:01.240 subject to an appeal. That's the proposedly would take place 0:23:01.280 --> 0:23:03.960 within seventy two hours. We'll see if it can actually 0:23:04.000 --> 0:23:07.399 take place so quickly, but nevertheless, that would be one option. 0:23:07.920 --> 0:23:09.919 The second option would be the case would be so 0:23:10.119 --> 0:23:14.000 compelling that it would be obvious this person actually qualified 0:23:14.000 --> 0:23:16.800 for asylum and you wouldn't need some lengthy trial. So, 0:23:16.880 --> 0:23:20.320 for instance, if people were fleeing a well known holocaust 0:23:20.359 --> 0:23:23.680 that's happening in some country, then everybody well, no, oh, yeah, 0:23:23.760 --> 0:23:26.800 you're from ex country, there is a holocaust in that country. 0:23:26.960 --> 0:23:30.120 We get it, okay, so end the story. So those 0:23:30.160 --> 0:23:33.120 people would not need to go through the whole machinations 0:23:33.119 --> 0:23:36.359 of a trial or three. You then actually have a 0:23:36.440 --> 0:23:40.520 longer proceeding that's supposed to take place within six months. 0:23:40.960 --> 0:23:43.520 That will then be the final distermination about whether you 0:23:43.560 --> 0:23:44.560 win asylum or not. 0:23:44.800 --> 0:23:47.680 Does this peel have any effect on the migrants who 0:23:47.720 --> 0:23:50.600 have come into the country the last year. Does it 0:23:50.640 --> 0:23:51.240 affect No. 0:23:51.160 --> 0:23:53.720 No, And that's a big criticism of the Republicans is 0:23:54.359 --> 0:23:57.119 for the people that have come in this year and 0:23:57.240 --> 0:24:00.439 last year and the year before, there is to be 0:24:01.080 --> 0:24:06.679 some larger organization in place in terms of authority to 0:24:06.960 --> 0:24:09.040 remove those people. Now, what there will be is there's 0:24:09.040 --> 0:24:12.160 a lot more funding for ICE to try to engage 0:24:12.200 --> 0:24:16.639