1
00:00:03,200 --> 00:00:07,960
Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

2
00:00:11,800 --> 00:00:17,720
Speaker 1: The bulk of the construction scholarship says that it's not

3
00:00:17,920 --> 00:00:21,959
Speaker 1: likely to pass constitutional muster, and the bulk of constitutional

4
00:00:22,040 --> 00:00:25,440
Speaker 1: scholars turned out to be right about the Biden administration

5
00:00:25,640 --> 00:00:29,120
Speaker 1: second eviction moratorium. It took the Supreme Court less than

6
00:00:29,160 --> 00:00:32,640
Speaker 1: a week to lift the moratorium, ending protections for millions

7
00:00:32,680 --> 00:00:35,640
Speaker 1: of people who fallen behind on their rent during the pandemic.

8
00:00:36,040 --> 00:00:38,400
Speaker 1: My guest is Neil Devon's a professor at William and

9
00:00:38,400 --> 00:00:42,040
Speaker 1: Mary Law School. Neil, this decision didn't come as a surprise,

10
00:00:42,159 --> 00:00:45,319
Speaker 1: did it. No, not at all. The Supreme Court had

11
00:00:45,360 --> 00:00:49,080
Speaker 1: foreshadowed it in its earlier ruling, and President by And

12
00:00:49,200 --> 00:00:52,720
Speaker 1: himself had said that he anticipated a defeat and that

13
00:00:52,800 --> 00:00:55,120
Speaker 1: it was a long shot. So what was the reasoning

14
00:00:55,160 --> 00:00:59,480
Speaker 1: in this unsigned opinion. Well, the reasoning was that the

15
00:00:59,520 --> 00:01:04,440
Speaker 1: statue you did not give the CDC authority to extend

16
00:01:04,920 --> 00:01:10,119
Speaker 1: the moratorium. That the CDC could deal with the spread

17
00:01:10,120 --> 00:01:15,400
Speaker 1: of communicable diseases, but not things indirect such as the

18
00:01:15,440 --> 00:01:20,520
Speaker 1: moratorium where you where you're not regulating the actual spread

19
00:01:20,520 --> 00:01:23,759
Speaker 1: of the disease, you're regulating individuals who might later spread

20
00:01:23,800 --> 00:01:27,759
Speaker 1: the disease. The Court said the CDC had power with

21
00:01:27,840 --> 00:01:32,319
Speaker 1: respect to things like fumigation and the facility itself, and

22
00:01:32,400 --> 00:01:35,840
Speaker 1: the spread of diseases directly related to the facility, but

23
00:01:35,959 --> 00:01:39,480
Speaker 1: not indirect things like individuals who might spread the disease

24
00:01:39,560 --> 00:01:41,959
Speaker 1: through their movements. That had to be the building itself.

25
00:01:42,360 --> 00:01:45,959
Speaker 1: So that was unsigned. But in descent, Justice Bryor, for

26
00:01:46,120 --> 00:01:50,200
Speaker 1: the three liberals, what did he say? He read the

27
00:01:50,240 --> 00:01:56,920
Speaker 1: statute more broadly. He said that the authority given the

28
00:01:56,960 --> 00:02:00,760
Speaker 1: CDC to deal with the spread of disease ease was

29
00:02:00,800 --> 00:02:05,280
Speaker 1: a broad authority, and that the second sentence of the statue,

30
00:02:05,480 --> 00:02:09,760
Speaker 1: which the majority focused in on and said, look what

31
00:02:09,919 --> 00:02:15,240
Speaker 1: the statute speaks to her. These direct matters, not indirect matters.

32
00:02:15,320 --> 00:02:20,440
Speaker 1: Justice Brier said, we shouldn't view that specification as undercutting

33
00:02:20,440 --> 00:02:24,400
Speaker 1: the broad delegation in the first sentence of the statutes

34
00:02:25,240 --> 00:02:29,040
Speaker 1: explain why the majority's opinion was not signed while the

35
00:02:29,120 --> 00:02:34,280
Speaker 1: descent was well. Typically in these shadow doctor cases, it's

36
00:02:34,320 --> 00:02:37,680
Speaker 1: not a formal opinion of the Supreme Court. The case

37
00:02:37,800 --> 00:02:41,320
Speaker 1: was not formally breathed, it was not subject to oral argument,

38
00:02:41,360 --> 00:02:43,960
Speaker 1: It was not part of the normal lowest things. This

39
00:02:44,080 --> 00:02:47,880
Speaker 1: was an emergency ordered issue involving a stay in an injunction.

40
00:02:48,160 --> 00:02:52,799
Speaker 1: So when these rulings are issued, they're typically issued as

41
00:02:52,919 --> 00:02:58,760
Speaker 1: procurium orders. Typically there's no rationale associated with them, and

42
00:02:58,880 --> 00:03:02,600
Speaker 1: occasionally a this will bile a concurring or dissenting opinion.

43
00:03:02,840 --> 00:03:06,799
Speaker 1: So that's just the structure of these shadow doctor cases.

44
00:03:07,000 --> 00:03:10,280
Speaker 1: And what's amazing about this case is it looks very

45
00:03:10,360 --> 00:03:13,720
Speaker 1: much like an opinion of the Supreme Court. Each side

46
00:03:13,800 --> 00:03:17,280
Speaker 1: writes about eight pages, each side goes through their reasoning.

47
00:03:17,760 --> 00:03:20,880
Speaker 1: It's very striking and shadow docket being the cases that

48
00:03:20,919 --> 00:03:25,520
Speaker 1: are handled on an emergency basis. So President Biden had

49
00:03:25,639 --> 00:03:29,840
Speaker 1: said basically that this would buy some time. Yes, and

50
00:03:30,120 --> 00:03:34,040
Speaker 1: that is essentially what the Biden administration did, is that

51
00:03:34,080 --> 00:03:38,680
Speaker 1: they made a decision to do something that was essentially

52
00:03:38,720 --> 00:03:42,800
Speaker 1: obviously political. The President more or less said that they

53
00:03:42,800 --> 00:03:45,720
Speaker 1: were buying time and willing to pursue a losing legal

54
00:03:45,880 --> 00:03:49,640
Speaker 1: argument in order to buy time. And that may not

55
00:03:49,880 --> 00:03:53,360
Speaker 1: win many friends on the Supreme Court. And it's an

56
00:03:53,360 --> 00:03:55,640
Speaker 1: interesting question that this will come back to haunt the

57
00:03:55,680 --> 00:03:59,520
Speaker 1: buying administration in anyway if the Supreme Court feels that

58
00:03:59,640 --> 00:04:03,680
Speaker 1: they acted somehow in bad faith pursuing a case just

59
00:04:03,800 --> 00:04:06,640
Speaker 1: to delay the inevitable, as opposed to pursuing a case

60
00:04:06,640 --> 00:04:09,040
Speaker 1: because they thought they were right on the marriage. So

61
00:04:09,160 --> 00:04:11,320
Speaker 1: that's an open question is to have it will affect

62
00:04:11,520 --> 00:04:14,960
Speaker 1: the Biden administration before the court. But the Court did

63
00:04:15,160 --> 00:04:18,000
Speaker 1: rule in a way that is not great for the

64
00:04:18,000 --> 00:04:20,720
Speaker 1: Biden administration, not just in this case, but in other

65
00:04:20,800 --> 00:04:24,960
Speaker 1: cases going forward, because the Court went on to say

66
00:04:25,200 --> 00:04:28,440
Speaker 1: that even if the statute were not as clear in

67
00:04:28,560 --> 00:04:31,479
Speaker 1: saying that the Buyingminstration does not have this authority, the

68
00:04:31,520 --> 00:04:34,840
Speaker 1: Buying Administration would still have lost the case because to

69
00:04:35,040 --> 00:04:39,480
Speaker 1: give this type of power to the agency would require

70
00:04:39,640 --> 00:04:45,080
Speaker 1: a very explicit delegation, a very clear delegation. So what

71
00:04:45,160 --> 00:04:49,880
Speaker 1: the Supreme Court said essentially was that for the buy

72
00:04:49,880 --> 00:04:53,680
Speaker 1: administration to have prevailed, the statute would have had to

73
00:04:53,800 --> 00:04:57,560
Speaker 1: clearly give them the authority. So even an ambiguous statute

74
00:04:59,240 --> 00:05:02,000
Speaker 1: would have been a statute that would not have cut

75
00:05:02,560 --> 00:05:04,799
Speaker 1: cut it as far as the Supreme Court was concerned.

76
00:05:05,360 --> 00:05:08,400
Speaker 1: And that's going to be a line of reasoning that

77
00:05:08,440 --> 00:05:11,680
Speaker 1: will be problematic in future cases where you have an

78
00:05:11,720 --> 00:05:16,440
Speaker 1: ambiguous statute and Buying Administration wants to argue that it's

79
00:05:16,560 --> 00:05:20,400
Speaker 1: understanding of the ambiguous statue should prevail, and then the

80
00:05:20,440 --> 00:05:24,040
Speaker 1: party on the other side can simply say, look, it

81
00:05:24,080 --> 00:05:26,760
Speaker 1: needs to be clear. That's what the Supreme Court said

82
00:05:26,960 --> 00:05:29,279
Speaker 1: in the Shadow Doctor case. It needs to be clear.

83
00:05:30,200 --> 00:05:33,160
Speaker 1: And that type of holding could be a problem in

84
00:05:33,400 --> 00:05:36,920
Speaker 1: future cases for the buying administration or any other administration

85
00:05:36,960 --> 00:05:40,400
Speaker 1: that's advancing a view of the law that is not

86
00:05:40,560 --> 00:05:46,320
Speaker 1: clearly backed by the statute itself. Is that the Chevron doctrine, Well,

87
00:05:46,480 --> 00:05:51,359
Speaker 1: it's it's it's a cousin of Chevron, so to speak.

88
00:05:51,360 --> 00:05:54,560
Speaker 1: It The Court doesn't specifically say this is about Chevron,

89
00:05:55,240 --> 00:05:58,560
Speaker 1: but it is in the same family the same type

90
00:05:58,560 --> 00:06:01,560
Speaker 1: of issues where we deal with the question whether statutes

91
00:06:01,600 --> 00:06:05,839
Speaker 1: are clear or unclear. It's it's it's it's akns of Chevron.

92
00:06:05,920 --> 00:06:09,359
Speaker 1: I think the Court distinguishes a little bit because it

93
00:06:09,400 --> 00:06:11,919
Speaker 1: talks about the scope of the delegation and Chevron is

94
00:06:12,080 --> 00:06:14,839
Speaker 1: much more across the board rule. And here the Court

95
00:06:14,880 --> 00:06:18,800
Speaker 1: is speaking the delegations of broad authority and the need

96
00:06:18,839 --> 00:06:21,719
Speaker 1: for clarity in that type of the case. But it's

97
00:06:21,800 --> 00:06:24,040
Speaker 1: very close to Chevron. I think that's a very good question.

98
00:06:25,320 --> 00:06:27,919
Speaker 1: This was the second time in a week that the

99
00:06:27,960 --> 00:06:31,799
Speaker 1: Supreme Court with the Conservatives and the majority and the

100
00:06:31,880 --> 00:06:35,280
Speaker 1: liberals and the minority dealt blows to the Biden administration.

101
00:06:35,600 --> 00:06:37,760
Speaker 1: Are we starting to see a sharp divide on the

102
00:06:37,760 --> 00:06:42,599
Speaker 1: court with the new conservative majority. It's to be seen,

103
00:06:42,839 --> 00:06:47,000
Speaker 1: but it's obviously not a good sign for the Buying administration.

104
00:06:47,520 --> 00:06:52,000
Speaker 1: In particular, the more that the six conservative justices perceived

105
00:06:52,000 --> 00:06:54,720
Speaker 1: that the Buying administration is willing to play fast and

106
00:06:54,839 --> 00:06:59,240
Speaker 1: loose to advance its legal policy priorities, the more pushback

107
00:06:59,320 --> 00:07:02,880
Speaker 1: they're likely to get from that group of six. And

108
00:07:03,040 --> 00:07:06,080
Speaker 1: the way this case was handled was not a good

109
00:07:06,080 --> 00:07:09,039
Speaker 1: way for the Biden administration to present itself. It's hard

110
00:07:09,080 --> 00:07:11,800
Speaker 1: to make predictions. Justice party is new to the court,

111
00:07:11,840 --> 00:07:15,120
Speaker 1: the dynamics of the new court are yet to come together.

112
00:07:15,480 --> 00:07:18,400
Speaker 1: But as an ingredient in the mix, this points to

113
00:07:19,040 --> 00:07:22,960
Speaker 1: that group of justices sticking together and having a view

114
00:07:23,440 --> 00:07:27,640
Speaker 1: of presidential power, view of statutory interpretation that may not

115
00:07:27,800 --> 00:07:30,840
Speaker 1: work well for the Biden administration now, it may not

116
00:07:30,920 --> 00:07:34,200
Speaker 1: work well for the administration after the Biden administration. To

117
00:07:34,720 --> 00:07:38,160
Speaker 1: this may be something where the Court does not like

118
00:07:38,360 --> 00:07:42,360
Speaker 1: delegations of power, where the Court does not like deferring

119
00:07:42,400 --> 00:07:46,600
Speaker 1: to agencies when they're ambiguous statutes. It may be a

120
00:07:46,720 --> 00:07:50,120
Speaker 1: moment in time where the Court seeks to limit the

121
00:07:50,120 --> 00:07:56,840
Speaker 1: power of government. I think that it's increasingly the case

122
00:07:57,040 --> 00:08:03,480
Speaker 1: that the shadow docket is becoming as almost as important

123
00:08:03,520 --> 00:08:07,520
Speaker 1: as the marriage stock it um, you know. I mean again,

124
00:08:07,560 --> 00:08:12,640
Speaker 1: it's not resulting in decisions published in the United States reports,

125
00:08:12,680 --> 00:08:15,640
Speaker 1: but in terms of what the justices are doing in

126
00:08:15,680 --> 00:08:19,880
Speaker 1: their day to day lives. UM. It's increasingly a big

127
00:08:19,920 --> 00:08:24,440
Speaker 1: part of that. And it affects obviously how they work.

128
00:08:24,920 --> 00:08:27,120
Speaker 1: You know. It's one thing to have months and months

129
00:08:27,160 --> 00:08:29,240
Speaker 1: to get an opinion out. It's another thing to have

130
00:08:29,320 --> 00:08:34,040
Speaker 1: these emergency orders that are done on such a quick timeline. UM.

131
00:08:34,080 --> 00:08:38,640
Speaker 1: I think it also cuts against collegiality on the court.

132
00:08:38,840 --> 00:08:41,839
Speaker 1: But you don't have the ability for things to play

133
00:08:41,880 --> 00:08:44,400
Speaker 1: out over an extended period of time, and it's much

134
00:08:44,440 --> 00:08:48,719
Speaker 1: more of a or shocked test situation. And that may

135
00:08:49,760 --> 00:08:52,400
Speaker 1: you know, that may make it harder for the justices

136
00:08:52,800 --> 00:08:56,079
Speaker 1: um to to work cooperatively on the marriage stock and

137
00:08:56,240 --> 00:08:59,679
Speaker 1: and and forwards these sort of unanimous opinions that they

138
00:08:59,800 --> 00:09:04,840
Speaker 1: were so successful at forging last term. Uh. You know,

139
00:09:05,040 --> 00:09:09,120
Speaker 1: it's it's a major development that the Court has changed

140
00:09:09,120 --> 00:09:12,760
Speaker 1: fundamentally because of it. Uh and whether it will persist,

141
00:09:13,440 --> 00:09:16,120
Speaker 1: I mean, I guess we'll find out, But it's showing

142
00:09:16,120 --> 00:09:19,280
Speaker 1: no signs of letting up. That's Neil Devans of William

143
00:09:19,280 --> 00:09:23,040
Speaker 1: and Mary Law School coming up next. Gender pronouns in court.

144
00:09:23,280 --> 00:09:28,400
Speaker 1: This is bloomberg. The Biden administration has abandoned the standards

145
00:09:28,600 --> 00:09:31,720
Speaker 1: the Trump administration put into place that were effective in

146
00:09:31,760 --> 00:09:34,320
Speaker 1: slowing the number of people coming across the border. But

147
00:09:34,440 --> 00:09:38,080
Speaker 1: now the Biden administration is being forced to reinstate a

148
00:09:38,120 --> 00:09:42,400
Speaker 1: Trump administration immigration policy by the Supreme Court, just what

149
00:09:42,559 --> 00:09:46,520
Speaker 1: Texas Governor Greg Abbott called for. A divided Supreme Court

150
00:09:46,559 --> 00:09:49,200
Speaker 1: has ordered the White House to revive the Trump migrant

151
00:09:49,200 --> 00:09:53,679
Speaker 1: protection protocols known as Remain in Mexico, which forced migrants

152
00:09:53,679 --> 00:09:57,160
Speaker 1: to wait in Mexico while seeking asylum here. Over the

153
00:09:57,240 --> 00:10:00,760
Speaker 1: descent of the three liberal justices the Core refused to

154
00:10:00,800 --> 00:10:03,520
Speaker 1: block a federal judge's ruling in a case brought by

155
00:10:03,559 --> 00:10:07,120
Speaker 1: Texas and Missouri. The same lineup of justices that dealt

156
00:10:07,160 --> 00:10:10,599
Speaker 1: Biden a blow over his eviction moratorium. Joining me is

157
00:10:10,679 --> 00:10:13,439
Speaker 1: Leon Fresco, a partner town to Night and the former

158
00:10:13,480 --> 00:10:17,240
Speaker 1: head of the Justice Department's Office of Immigration Litigation Leon

159
00:10:17,280 --> 00:10:20,200
Speaker 1: there was a one paragraph order. Did the court get

160
00:10:20,240 --> 00:10:25,440
Speaker 1: any real explanation or direction for the Biden administration, Well, no,

161
00:10:25,640 --> 00:10:28,559
Speaker 1: they did not go into great detail. They affirmed it

162
00:10:28,600 --> 00:10:33,000
Speaker 1: as arbitrary and caprition. And so what that means is

163
00:10:33,160 --> 00:10:37,439
Speaker 1: combined administration, just like what happened with the doc A litigation,

164
00:10:37,480 --> 00:10:40,840
Speaker 1: and they actually cited to the dock A litigation has

165
00:10:40,880 --> 00:10:45,439
Speaker 1: to either give a new reason why it is resending

166
00:10:45,640 --> 00:10:50,079
Speaker 1: the Migration Protection Protocol or it has to implement this.

167
00:10:50,640 --> 00:10:53,360
Speaker 1: But the problem with the new reason is that the

168
00:10:53,440 --> 00:10:57,079
Speaker 1: court has basically said that no reason is going to

169
00:10:57,120 --> 00:11:00,280
Speaker 1: be good enough if there's no sufficient detention compile city.

170
00:11:00,360 --> 00:11:03,120
Speaker 1: Because the lower court said that there's only two things

171
00:11:03,120 --> 00:11:05,840
Speaker 1: you can do with an asylum speaker who crosses the border,

172
00:11:06,240 --> 00:11:10,520
Speaker 1: place them in detention here in America or put them

173
00:11:10,600 --> 00:11:14,200
Speaker 1: under the Migration Protection Protocol. There isn't a third option

174
00:11:14,280 --> 00:11:18,520
Speaker 1: called release these people into the United States. And so

175
00:11:18,880 --> 00:11:21,280
Speaker 1: if they try to do any memo that permits that,

176
00:11:21,640 --> 00:11:24,320
Speaker 1: they're probably going to keep running into the same problem.

177
00:11:24,679 --> 00:11:26,920
Speaker 1: And so what they really are going to need to

178
00:11:26,920 --> 00:11:31,120
Speaker 1: do at this point is either explore the options of

179
00:11:31,160 --> 00:11:34,480
Speaker 1: showing an impracticality of doing it, which will happen in

180
00:11:34,600 --> 00:11:39,400
Speaker 1: contempt proceedings, or try to get Congress to defund the

181
00:11:39,440 --> 00:11:43,000
Speaker 1: program as part of either the reconciliation bill that might

182
00:11:43,040 --> 00:11:47,120
Speaker 1: be moving or an appropriations bill. Why do you think

183
00:11:47,200 --> 00:11:50,240
Speaker 1: that the administration drafting a new memo with a new

184
00:11:50,280 --> 00:11:53,960
Speaker 1: reason won't change the decision of the federal judge that

185
00:11:54,040 --> 00:11:56,680
Speaker 1: this will go back to. So the court said that

186
00:11:56,840 --> 00:12:02,880
Speaker 1: the reasoning given was arbitrary capricess that's saying that this

187
00:12:03,120 --> 00:12:08,520
Speaker 1: program didn't help to reduce illegal immigration is disproven by

188
00:12:08,559 --> 00:12:11,200
Speaker 1: the fact that as students the program was refitted, the

189
00:12:11,320 --> 00:12:14,560
Speaker 1: numbers have gone higher, which may be coincidental, but the

190
00:12:14,679 --> 00:12:17,520
Speaker 1: staffs are that way if you were to look at

191
00:12:17,559 --> 00:12:20,840
Speaker 1: them without any context. So basically all of the reasons

192
00:12:20,880 --> 00:12:24,679
Speaker 1: that we're given the court found to be unjustified as

193
00:12:24,679 --> 00:12:27,920
Speaker 1: a result of the evidence. So the court said that, yes,

194
00:12:28,040 --> 00:12:31,680
Speaker 1: conceivably new reasoning can be given. But I believe that

195
00:12:31,720 --> 00:12:34,440
Speaker 1: no matter what the reasoning that would be given, because

196
00:12:34,480 --> 00:12:38,080
Speaker 1: the court has already reached the finding that there's only

197
00:12:38,120 --> 00:12:44,240
Speaker 1: two acceptable legal alternatives, the tension or this migration Protection Protocol,

198
00:12:44,559 --> 00:12:47,520
Speaker 1: it's not going to accept any reasoning given for the

199
00:12:47,640 --> 00:12:51,440
Speaker 1: ending of the program. This is the Supreme Court telling

200
00:12:51,480 --> 00:12:55,520
Speaker 1: the White House what to do about immigration policy and

201
00:12:55,640 --> 00:13:00,840
Speaker 1: foreign affairs, forcing it basically to engage in negotiations with Mexico.

202
00:13:01,000 --> 00:13:04,160
Speaker 1: Isn't this far outside what the Supreme Court has done

203
00:13:04,160 --> 00:13:06,920
Speaker 1: in the past. I think the issue is going to

204
00:13:07,000 --> 00:13:12,280
Speaker 1: be peed up more appropriately in a contempt slash sanctions

205
00:13:12,400 --> 00:13:16,559
Speaker 1: context then in this context, because I think they've been

206
00:13:16,600 --> 00:13:18,960
Speaker 1: trying to skirt the issue in the Lower Court and

207
00:13:19,000 --> 00:13:21,640
Speaker 1: the Fifth Circuit, and I guess now in the Supreme

208
00:13:21,640 --> 00:13:23,920
Speaker 1: Court by saying, look, give it a try, see if

209
00:13:23,920 --> 00:13:26,800
Speaker 1: you can at least do the program. But if Mexico

210
00:13:26,920 --> 00:13:29,280
Speaker 1: ends up saying no, we refuse, and we have no

211
00:13:29,440 --> 00:13:32,959
Speaker 1: duty under any protocols of any kind to take non

212
00:13:33,040 --> 00:13:36,920
Speaker 1: Mexican nationals back into Mexico that have arrived in the

213
00:13:37,000 --> 00:13:39,240
Speaker 1: United States, you know, why would we have to take

214
00:13:39,280 --> 00:13:42,400
Speaker 1: them back? Then it's gonna be up to the courts

215
00:13:42,440 --> 00:13:45,079
Speaker 1: to decide, Hey, are you gonna throw Joe Biden in jail?

216
00:13:45,120 --> 00:13:48,080
Speaker 1: Are you gonna throw Ali Majorkist and jail? Who are

217
00:13:48,120 --> 00:13:51,200
Speaker 1: you going to throw in jail for disregarding disorder? As

218
00:13:51,280 --> 00:13:54,400
Speaker 1: Mexico is not letting you send people in. I mean

219
00:13:54,440 --> 00:13:58,280
Speaker 1: The way Trump had gotten this resolved was that he

220
00:13:58,480 --> 00:14:02,440
Speaker 1: had actually threatened MC to go about paraphrase. And so

221
00:14:02,720 --> 00:14:04,680
Speaker 1: is that what they're going to demand is the Supreme

222
00:14:04,720 --> 00:14:07,120
Speaker 1: Court gonna say you have to make a similar threat

223
00:14:07,200 --> 00:14:10,160
Speaker 1: about paraphrase, and then if not, you have to raise

224
00:14:10,240 --> 00:14:13,200
Speaker 1: the paris. I mean, at that level is where you

225
00:14:13,280 --> 00:14:17,240
Speaker 1: start to see, Okay, now we really do have judicial

226
00:14:17,679 --> 00:14:20,880
Speaker 1: scrutiny into things that are way past where courts I've

227
00:14:20,920 --> 00:14:23,360
Speaker 1: ever wanted to go. But I think what they're saying

228
00:14:23,400 --> 00:14:26,960
Speaker 1: at the moment is you have to at least try

229
00:14:27,040 --> 00:14:30,640
Speaker 1: to make some agreement with Mexico to accept people, and

230
00:14:30,640 --> 00:14:33,960
Speaker 1: then you can then I guess that will be assessed

231
00:14:34,280 --> 00:14:38,760
Speaker 1: in a sanctioned slash contempt theory. But just by saying

232
00:14:38,800 --> 00:14:42,920
Speaker 1: you have to engage in these negotiations with Mexico, doesn't

233
00:14:42,960 --> 00:14:46,360
Speaker 1: that go beyond what the court should do. It's interfering

234
00:14:46,400 --> 00:14:51,880
Speaker 1: with foreign policy? Yeah, I mean, theoretically speaking, it is

235
00:14:52,320 --> 00:14:57,200
Speaker 1: a expansion of where courts have ever gone before. And

236
00:14:57,240 --> 00:14:59,320
Speaker 1: I think they're just hoping that they don't have to

237
00:14:59,360 --> 00:15:02,840
Speaker 1: get to the nuts and bolts of the issue of

238
00:15:03,200 --> 00:15:07,160
Speaker 1: what was the consultation with Mexico meaningfuling up I think

239
00:15:07,200 --> 00:15:10,680
Speaker 1: at that point people will start to get very, very uncomfortable.

240
00:15:11,000 --> 00:15:13,320
Speaker 1: But the fact that this door was even opened, as

241
00:15:13,360 --> 00:15:19,320
Speaker 1: you say, is a potentially historic fact that hadn't happened previously.

242
00:15:20,320 --> 00:15:21,920
Speaker 1: What do you make of the fact that it was

243
00:15:22,200 --> 00:15:26,960
Speaker 1: divided six to three down ideological lines. I think that

244
00:15:27,560 --> 00:15:32,360
Speaker 1: Justice Roberts probably was looking for this opportunity to say, hey, look,

245
00:15:32,400 --> 00:15:36,120
Speaker 1: the doctor decision that I wrote goes both ways, and

246
00:15:36,800 --> 00:15:39,240
Speaker 1: if you re send some of these memos that we

247
00:15:39,320 --> 00:15:41,880
Speaker 1: think makes sense either way one way or the other,

248
00:15:42,280 --> 00:15:44,960
Speaker 1: we're gonna be tough on you. And so I think

249
00:15:45,000 --> 00:15:47,520
Speaker 1: that would be Justice Robert's explanation. I think the other

250
00:15:47,560 --> 00:15:52,400
Speaker 1: five justices simply thought of this as something where they

251
00:15:52,520 --> 00:15:57,800
Speaker 1: probably thought that this administration was not sufficiently enforcing the border,

252
00:15:57,840 --> 00:16:01,200
Speaker 1: given the statistics of the border at Phnton, and so

253
00:16:01,440 --> 00:16:05,960
Speaker 1: from their perspective, it was fine to keep being injunction going.

254
00:16:06,400 --> 00:16:10,360
Speaker 1: But certainly if the tables were turned, I don't know

255
00:16:10,440 --> 00:16:14,280
Speaker 1: that the justices would have allowed such a judicial interference

256
00:16:14,280 --> 00:16:19,240
Speaker 1: in what is normally a complete presidential prerogative. So I

257
00:16:19,280 --> 00:16:21,280
Speaker 1: don't really know what to make of this. This is

258
00:16:21,480 --> 00:16:24,640
Speaker 1: a brand new day in immigration law, and it's going

259
00:16:24,680 --> 00:16:29,880
Speaker 1: to be very interesting. If Texas slash Missouri really does

260
00:16:29,960 --> 00:16:33,040
Speaker 1: move for sanctions here because they don't like how the

261
00:16:33,080 --> 00:16:36,080
Speaker 1: program is being implemented, That's really where the rubber is

262
00:16:36,120 --> 00:16:39,480
Speaker 1: going to meet the road here. So now the Attorney's

263
00:16:39,520 --> 00:16:43,240
Speaker 1: General of Missouri and Texas declare this an important win

264
00:16:43,440 --> 00:16:47,640
Speaker 1: over the Biden administration? Is it an important win? Well,

265
00:16:47,840 --> 00:16:51,440
Speaker 1: it is a dramatic win for sure, having the court

266
00:16:51,520 --> 00:16:54,160
Speaker 1: do something that probably would never do under almost any

267
00:16:54,200 --> 00:16:57,320
Speaker 1: other circumstance. People would have ranked the odds of victory

268
00:16:57,520 --> 00:16:59,400
Speaker 1: very very low at the outset of this for the

269
00:16:59,480 --> 00:17:05,760
Speaker 1: game ship, but in terms of the long lasting implications,

270
00:17:05,880 --> 00:17:09,880
Speaker 1: we won't see. Thanks Leon. That's Leon Fresco of Honden Knight,

271
00:17:10,359 --> 00:17:12,720
Speaker 1: and that's it for this edition of the Bloomberg Lawn Show.

272
00:17:13,000 --> 00:17:15,200
Speaker 1: Remember you can always get the latest legal news, honor

273
00:17:15,240 --> 00:17:18,919
Speaker 1: Bloomberg Lawn Podcast. You can find them on Apple Podcasts, Spotify,

274
00:17:19,119 --> 00:17:23,800
Speaker 1: and at www dot Bloomberg dot com, slash podcast, slash Law.

275
00:17:24,160 --> 00:17:26,840
Speaker 1: I'm June Grosso and you're listening to Bloomberg