Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Columbia graduate student and pro Palestinian activist Mahmoud Khalil has
Speaker 2: become a symbol of the Trump administrations cracked down on
Speaker 2: international students at several American universities. Khalil was the first
Speaker 2: target of Trump's effort to deport non citizen students with
Speaker 2: pro Palestinian or anti Israeli views. He spent one hundred
Speaker 2: and four days in federal immigration detention before being released
Speaker 2: last month.
Speaker 3: They tried to portray me as a violent person. They
Speaker 3: tried to portray me as a terrorist, as some lunatic,
Speaker 3: but not presenting any evidence, not presenting any shred of
Speaker 3: credibility to their claims.
Speaker 2: Until this week, legal proceedings have focused on the detentions
Speaker 2: of individual students, but now a federal judge in Boston
Speaker 2: is holding the first trial challenging the Trump administration's policy
Speaker 2: of revoking visas, arresting, detaining, and deporting non citizen students
Speaker 2: and faculty who engage in pro Palestinian advocacy. Groups representing
Speaker 2: university professors say the policy is chilling free speech on
Speaker 2: campuses in violation of the First Amendment, but lawyers for
Speaker 2: the government argue that no such policy exists. My guest
Speaker 2: is immigration law expertly on Fresco, a partner at Holland
Speaker 2: and Knight Leah, and there have been lots of orders
Speaker 2: by judges over these arrests of non citizen students, but
Speaker 2: this is the first trial. Explain how we got to
Speaker 2: this point.
Speaker 4: The Trump administration has been trying to crack down on
Speaker 4: what it believes is excessive protests on university campuses by
Speaker 4: foreign students. And it thinks that there are some number
Speaker 4: of students that are coming to the United States that
Speaker 4: are not coming for legitimate academic reasons, but are instead
Speaker 4: coming to rabl rouse or cause trouble or otherwise create
Speaker 4: anti Semitic activities in schools. And so what it's been
Speaker 4: doing is it's been revoking visas, and it's been revoking
Speaker 4: them in a number of matters. It's been actually either
Speaker 4: just saying to students they can't re enter if they leave.
Speaker 4: Sometimes it's been actually terminating them from the student visa database,
Speaker 4: and in other times for people who are actually lawful
Speaker 4: permanent residents, it's actually revoked their lawful permanent residence status,
Speaker 4: and all under a provision in the Immigration Code which
Speaker 4: says that the Secretary of State can revoke either lawful
Speaker 4: permanent residency or a student visa, either one any immigration
Speaker 4: status that's not citizenship. The Secretary of State can revoke
Speaker 4: that status if the Secretary of State believes that doing
Speaker 4: so is necessary because the foreign national is acting contrary
Speaker 4: to the interests of the foreign policy of the United States,
Speaker 4: And so in other cases involving specific individuals like Mahmoud
Speaker 4: Khalil or other individuals, the judges have just taken these
Speaker 4: claims at face value and said, Okay, I'm going to
Speaker 4: rule on the legality of the question of whether what
Speaker 4: Secretary of Rubio is doing violates the First Amendment or not.
Speaker 4: And that statute is unconstitutional either on its face or
Speaker 4: in the way it's being applied, such that these foreign
Speaker 4: students are not being allowed to express themselves under the
Speaker 4: First Amendment. But in this case, this particular judge, who's
Speaker 4: known for basically not taking any claims at face value,
Speaker 4: has decided that he would actually bring this to a trial.
Speaker 2: So what's the main issue in the trial.
Speaker 4: So what he's having a trial on is whether the
Speaker 4: Secretary of State Marco Rubio is actually revoking these visas
Speaker 4: in good faith because he's concerned about the foreign policy
Speaker 4: of the United States, or whether it's being done as
Speaker 4: a pretext to violate the First Amendment rights of these
Speaker 4: foreign national students. Now, the problem is, there are a
Speaker 4: lot of precursor issues in this case, like whether this
Speaker 4: judge even has jurisdiction to be doing any of this,
Speaker 4: whether this should be done in a removal process, whether
Speaker 4: this statute doesn't even permit any judicial review of any kind.
Speaker 4: And so the judge is sort of skipping all of
Speaker 4: those steps, and it is saying, yes, I have jurisdiction, I
Speaker 4: can review all of this, and it is just basically trying
Speaker 4: to get to the end of the book first and
Speaker 4: say I'm going to actually just get to the merits
Speaker 4: of this. What is the administration doing? Is it illegal?
Speaker 4: And then leading to the courts all of these questions
Speaker 4: later the threshold questions about whether he even had jurisdiction
Speaker 4: to do any of this in the first place, where
Speaker 4: these cases are supposed to be brought, et cetera.
Speaker 2: So Leon, the judge said that the trial's likely to
Speaker 2: center on the question of whether non citizens lawfully present
Speaker 2: in the country have the same free speech rights as citizen.
Speaker 2: Is there case law on that?
Speaker 4: Well, there actually is case law on that, and that
Speaker 4: case law is pretty bad. There's a case called Haresiatis
Speaker 4: versus Shaughnessy from the nineteen fifties, and it dealt with
Speaker 4: actual lawful permanent residents of the United States, so not
Speaker 4: non immigrant visa holders like student visa or visitor visa holders.
Speaker 4: These were actual lawful permanent residents. And many of them
Speaker 4: in that case had US citizens spouses and US citizen children.
Speaker 4: Some had US citizen grandchildren. And the issue was there
Speaker 4: was a statute that said not just current communists, but
Speaker 4: even former members of the Communist Party could be deported
Speaker 4: if they were just identified for deportation. And this was
Speaker 4: in the height of the Cold War, and these folks argued,
Speaker 4: wait a second, I'm not even in the Communist Party anymore.
Speaker 4: I've renounced my affiliation with the Communist Party. And they
Speaker 4: said the courts shouldn't be able to deport me, because
Speaker 4: even if I was a Communist, what differ what it
Speaker 4: make if I wasn't actually violently seeking to overthrow the government,
Speaker 4: if I was just some sort of communists who just
Speaker 4: was an economic person not trying to overthrow the government.
Speaker 4: Why would I be deported for my First Amendment values?
Speaker 4: And that court in nineteen fifty two said no, in
Speaker 4: these statutes involving non citizens, the First Amendment does not
Speaker 4: overcome the security concerns, the legitimate security concerns of the government,
Speaker 4: even if the person is a lawful, permanent residence. So
Speaker 4: if the Supreme Court actually upholds that doctrine here again
Speaker 4: in twenty twenty five or twenty twenty six, whenever it
Speaker 4: gets this case, then it will remain the same, which
Speaker 4: is that when you're not a citizen of the United States,
Speaker 4: your First Amendment right are not superior to the rights
Speaker 4: of the government to be able to deport you for
Speaker 4: conduct that they feel is deportable conduct. We shall see,
Speaker 4: and the judge.
Speaker 2: Is also going to consider whether the Secretary of State
Speaker 2: is revoking these visas in good faith.
Speaker 4: The other issue that they're trying to get at in
Speaker 4: this trial is, yes, first, what First Amendment rights do
Speaker 4: the non citizens have? But then number two, the judge
Speaker 4: may say, well, fine, that's all fined in dandy. But
Speaker 4: if the adjudications here are pretextual and I can find
Speaker 4: that they're completely pretextual, meaning there actually is no threat
Speaker 4: to foreign policy of any kind. I can still halt
Speaker 4: these deportations because fine, maybe the statute does allow a
Speaker 4: deportation when there's conduct that's a threat to the US
Speaker 4: foreign policy. So, for instance, the number one version of
Speaker 4: this would be that sub dictator gets a visitor visa
Speaker 4: and comes to the United States, and nobody likes that
Speaker 4: this dictator is being given safe haven to visit the
Speaker 4: United States, So that would be the number one version
Speaker 4: of this. But at the end of the day, that
Speaker 4: might also be something that's not subject to judicial review.
Speaker 4: And that's what the Court of Appeals, the District Court,
Speaker 4: and the Supreme Court are going to need to decide,
Speaker 4: is is this issue about whether the Secretary of State
Speaker 4: is actually acting in good faith in a particular case
Speaker 4: something that a judge actually can review in the first place.
Speaker 4: And none of this is settled law, none of this
Speaker 4: is established. All of this is being made up at
Speaker 4: the beginning now as issues of first impression. I think
Speaker 4: this judge is going to say he has jurisdiction, which
Speaker 4: is why he's going through a trial. But we're going
Speaker 4: to have to see where the First Circuit ultimately goes
Speaker 4: down on this, and also where the Supreme Court actually
Speaker 4: says at the end of the day, what actually happens.
Speaker 4: What is the procedure that needs to be followed when
Speaker 4: the Secretary of State decides that someone is acting contrary
Speaker 4: to the foreign policy interests of the United States. Can
Speaker 4: it be challenged in the district court? Does it have
Speaker 4: to be challenged in the administrative removal proceeding? And then,
Speaker 4: depending on which court, what is the nature of the challenge.
Speaker 4: Can you actually prove this is pretextual or does the
Speaker 4: administration get enough deference that you really can't even challenge
Speaker 4: it at all? And so those are going to be
Speaker 4: the questions we're going to be deciding in the next
Speaker 4: year or so.
Speaker 2: Let's move from the First Circuit to the Fifth Circuit,
Speaker 2: the most conservative circuit in the country, and it upheld
Speaker 2: an injunction that that stops a Texas anti immigration law
Speaker 2: from being enforced in a victory for immigrants rights. Is
Speaker 2: that a surprise coming from the Fifth Circuit?
Speaker 1: Well, it is a surprise.
Speaker 4: In the center was a two to one decision, with
Speaker 4: one of the Republican judges taking the side that the
Speaker 4: statute from Texas was unconstitutional. If you recall what happened
Speaker 4: in this This was during the Biden administration when the
Speaker 4: State of Texas was saying that there was an inundation
Speaker 4: of people coming into the United States. The Biden administration
Speaker 4: didn't want to do anything about it, so it needed
Speaker 4: to act, and the State of Texas passed the law
Speaker 4: basically saying we can do three things that have never
Speaker 4: been done before. Number One, we can actually deport people
Speaker 4: ourselves to the border of Texas and Mexico. Maybe we
Speaker 4: can't bring them into Mexico, but what we can do
Speaker 4: is take them to the US side of the actual
Speaker 4: physical border. And what we can say to them is
Speaker 4: if you try to come back into the interior, if
Speaker 4: you don't actually then take the next step yourself and
Speaker 4: go into Mexico, then we're going to prosecute you for
Speaker 4: a crime. And if we do it a second time,
Speaker 4: it'll be an even worse crime. And so from that perspective,
Speaker 4: the question was is that violate federal law. There was
Speaker 4: a district court injunction that said that yes, this violate
Speaker 4: federal law under the Arizona versus the United States case
Speaker 4: that came during the Omama administration in twenty twelve. That
Speaker 4: was the Arizona Law, where Arizona said, We're going to
Speaker 4: basically take matters into our own hands and enforce immigration
Speaker 4: law and ask people for their papers, and if they're
Speaker 4: not here legally, we will arrest them and prosecute them
Speaker 4: for a misdemeanor. That was rule to be unconstitutional. So
Speaker 4: this is further than that. And in a two to
Speaker 4: one decision, the Court of Appeals upheld in a permanent
Speaker 4: way the stay that it had issued that had prevented
Speaker 4: this Texas Statute from going into effect in the first place. Now,
Speaker 4: what's interesting about this is the factual backdrop, and we're
Speaker 4: going to be talking about factual backdrops a lot today,
Speaker 4: but the sexual backdrop of this case is completely different
Speaker 4: now than it was back when the Biden administration was
Speaker 4: in office and there were these concerns about the amount
Speaker 4: of people streaming in to the state of Texas. Now
Speaker 4: pretty much everyone would admit I would think that there
Speaker 4: are anybody streaming into the state of Texas anymore. That
Speaker 4: this traffic has stopped in its entirety. And so the
Speaker 4: question is, what is this emergency that Texas is claiming
Speaker 4: is necessary now in order to have a law like this,
Speaker 4: and I think that's going to be its biggest problem
Speaker 4: if it tries to move forward to the Supreme Court
Speaker 4: coming up next.
Speaker 2: A judge blocks the administration from denying all asylum claims
Speaker 2: at the southern border. You're listening to Bloomberg. A DC
Speaker 2: federal judge has barred the Trump administration from expelling asylum seekers,
Speaker 2: saying President Trump overstepped his legal and constitutional authority. Judge
Speaker 2: Randolph Mass said portions of Trump's January twentieth executive order
Speaker 2: violate the Immigration and Nationality Act and the US constitutions
Speaker 2: separation of powers. The US Constitution can't be read to
Speaker 2: grant the President or his delegees authority to adopt an
Speaker 2: alternative immigration system which supplants the statutes that Congress has enacted.
Speaker 2: I've been talking to immigration attorney Leon Fresco of Holland
Speaker 2: and Knight. Has the Trump administration been denying asylum claims?
Speaker 4: Correct? What has happened since the Trump administration has taken
Speaker 4: power in January of twenty twenty five is they tightened
Speaker 4: a regulation that was already being challenged through the Biden administration.
Speaker 4: What the Biden administration was saying was you can't come
Speaker 4: across the border illegal and ask for asylum. You have
Speaker 4: to make an appointment using the CBP one app and
Speaker 4: go to a port of entry and ask for asylum
Speaker 4: at the port of entry. But if you try to
Speaker 4: go in between the ports of entry, you are not
Speaker 4: going to be allowed asylum. You're going to be pushed
Speaker 4: back into Mexico because you're going to be banned. So
Speaker 4: that was a provision that the Biden administration has. When
Speaker 4: Trump comes into power, he then says, not only will
Speaker 4: you be pushed back, not only will there be this band,
Speaker 4: but there's not going to be a legal way to
Speaker 4: come into the port of entries. We're closing the CDP
Speaker 4: one app, We're closing the parole programs that allow you
Speaker 4: to apply to come in legally. And so there's no
Speaker 4: way in period. There's no asylum, there's no requesting it
Speaker 4: at the ports of entry, there's no requesting paroles, nothing,
Speaker 4: there's no way to ask for refugee status. If you're
Speaker 4: just basically trying to arrive to the United States to
Speaker 4: ask for a refugee status aka asylum, there's no way
Speaker 4: to do that. And so when that happened. There literally
Speaker 4: is a provision in the law that you can challenge
Speaker 4: that in the District Court for the District of Columbia,
Speaker 4: and that's what people did. They first challenged the Biden administration.
Speaker 4: That case never got to a decision, so it got
Speaker 4: converted into a challenge to the Trump administration's policies. And
Speaker 4: now after a lot of excessive briefing back and forth,
Speaker 4: because the Supreme Court had issued doctrines earlier in the
Speaker 4: Biden administration saying you can't get preliminary injunctive relief like this.
Speaker 4: You can only basically get summary judgment, and then that
Speaker 4: has to go all the way up to the Supreme
Speaker 4: Court before something like this can be stopped. So they
Speaker 4: were saying that district courts and circuit courts, on their
Speaker 4: various statutory regimes, don't have the jurisdiction to enjoin these
Speaker 4: kinds of asylum programs. They can only enter a final
Speaker 4: judgment saying that they think it's illegal, and then that
Speaker 4: has to work its way up to the Supreme Court,
Speaker 4: who then has to decide whether it's illegal or not.
Speaker 4: So that's what's happened here. A district judge from the
Speaker 4: District of Columbia has said this is illegal. You have
Speaker 4: to provide some way for people who are outside of
Speaker 4: the United States who when they arrive at the United
Speaker 4: States are able to apply for asylum. You can't just
Speaker 4: have a wholesale ban on people applying for asylum. And
Speaker 4: that that's what's basically happened here, and so that the
Speaker 4: executive orders and regulations that have been issued by the
Speaker 4: Trump administration banning asylum are declared illegal. Now that declaration
Speaker 4: won't go into effects again unless and until the Supreme
Speaker 4: Court allows it to go into effect. But nevertheless, if
Speaker 4: the Supreme Court agrees that there has to be some
Speaker 4: way for people to apply for asylum, then the numbers
Speaker 4: will eventually change from the zero numbers that we have now.
Speaker 4: I mean they may not change immediately because there will
Speaker 4: be this game of sort of you know, touching the
Speaker 4: stove and seeing what happens when you touch the stove, etc.
Speaker 4: But once people touch the stove enough to see that no,
Speaker 4: the government does indeed have to let them in and
Speaker 4: then let them apply for asylum, then you will see
Speaker 4: people doing this again.
Speaker 2: I mean, asylum is a pretty basic concept in this
Speaker 2: country through our history. What do you think the Supreme
Speaker 2: Court will do well.
Speaker 4: It's difficult because if you're actually going to look at this,
Speaker 4: and I always try to use the either AI judge
Speaker 4: or the robot judge, or the judge that has no
Speaker 4: political sentiment of any kind, it's hard to read the
Speaker 4: statutory framework which says that regardless of how you enter
Speaker 4: the United States, if you're in the territory of the
Speaker 4: United States, you're permitted to apply for asylum, which is
Speaker 4: what the statute literally says, and then say, well, there's
Speaker 4: no way to apply for the asylum because what's happening
Speaker 4: is the administration is using a second statute which says
Speaker 4: that they can pick places or reasons, discretionary reasons why
Speaker 4: people cannot get asylums. So, for instance, let's say there's
Speaker 4: some new AI crime that nobody thought of when they
Speaker 4: read the statute. They can say, anybody who's committed this
Speaker 4: AI crime can't get asylum. Okay, fine, nobody thought of
Speaker 4: that when there was a statute, fair enough, But people
Speaker 4: did think of the fact that if you came illegally
Speaker 4: you could apply for asylum, because that's literally what it
Speaker 4: says in the statute. So can that be a reason?
Speaker 4: Is that really a permissible reason that you can use
Speaker 4: your discretion for to not allow people to get asylum,
Speaker 4: because that's literally one that's covered in the statute. It's
Speaker 4: not like AI where it would be a brand new
Speaker 4: thing nobody thought about, which was the whole point of
Speaker 4: Congress giving this authority to add new discretionary reasons why
Speaker 4: somebody couldn't get asylum. This is one that was already contemplated.
Speaker 4: So I do think if you have a disinterested, non political,
Speaker 4: computerized judge, it would seem to me that that judge
Speaker 4: would say, yeah, there has to be some way you
Speaker 4: can apply for asylum if you enter the United States.
Speaker 4: But we're going to see what the Supreme Court does.
Speaker 4: Because the Supreme Court may just say I get all that,
Speaker 4: and that's fine and dandy, but I don't want to
Speaker 4: return to the state of affairs in the Biden administration
Speaker 4: where there were hundreds of thousands of people coming each
Speaker 4: month across the border, and so they may just say
Speaker 4: too bad. We'll really just have to see where the
Speaker 4: Supreme Court will go down. As I sit here now,
Speaker 4: I cannot make a good faith prediction because of other
Speaker 4: cases we'll talk about in a second, where I would
Speaker 4: never have guessed the Supreme Court would have ruled the
Speaker 4: way it did. And I think the Supreme Court is
Speaker 4: just tired of interventions that don't allow the Trump administration
Speaker 4: to enforce immigration laws. And so they may just say, look,
Speaker 4: if the Congress wants to do something, that's great, But
Speaker 4: if the Congress isn't going to do anything, we're not
Speaker 4: going to recap the president's ability to enforce immigration law.
Speaker 2: Yeah, I mean on the emergency docket. The Supreme Court
Speaker 2: has basically given Trump everything he asks for regarding immigration,
Speaker 2: including last Friday where they said he can deport people
Speaker 2: to third countries.
Speaker 4: Correct. So in this case, here's what happened. You had
Speaker 4: eight individuals from all over the world, the notorious sort
Speaker 4: of countries. We can't deport people to Cuba, Allos, Cambodia,
Speaker 4: et cetera. And so what the Trump administration is basically
Speaker 4: trying to accomplish as it's basically saying, look, I think
Speaker 4: these countries are acting in a pretextual manner not allowing
Speaker 4: us to deport their citizens back to their countries. If
Speaker 4: we actually make things onerous enough and difficult enough, they'll
Speaker 4: eventually start taking their people back. Whether it's directly or
Speaker 4: if we deport them to very strange places, then those
Speaker 4: individuals will starve to death unless those countries accept them back.
Speaker 4: So they will eventually give them a travel permit to
Speaker 4: go back to Cambodia or Loos or Cuba or something,
Speaker 4: because they're that's just going to let people start to
Speaker 4: death in the middle of some strange country. So it
Speaker 4: tried to test out this theory in South Sudan. It
Speaker 4: tried to deport people from Cuba and Laos and Cambodia
Speaker 4: and other places, eight people to South Sudan. But in
Speaker 4: the process of trying to do that, it didn't allow
Speaker 4: these individuals to raise a claim that they would be
Speaker 4: subject to torture if they were deported to South Sudan.
Speaker 4: And so there was a district judge who said stop that,
Speaker 4: you can't continue this process. And the problem was by
Speaker 4: the time that order was entered, the individuals were already
Speaker 4: in Djibouti. And I think this is another issue of
Speaker 4: bad facts make bad laws, because now there was eight
Speaker 4: people in Djibouti where the US basically was stuck. What
Speaker 4: was it supposed to do with these people? You know,
Speaker 4: do you do trials for whether they're going to be
Speaker 4: torture or not. Who are these Americans having to take
Speaker 4: care of these people in Djibouti? You know they can't
Speaker 4: go home now. It was a big mess, and so
Speaker 4: I think the Supreme Court was worried about just this
Speaker 4: logistical nightmare of having at least a month or two
Speaker 4: or maybe more of hearings and trials for these eight
Speaker 4: individuals to may claims about whether they would face torture
Speaker 4: in South Sudan, and so basically threw its hands up
Speaker 4: and said, you know what, we're done with this. Allow
Speaker 4: these people to be sent to South Sudan. But in
Speaker 4: the meantime, that's created a president now where the Trump
Speaker 4: administration will be able to send anybody to South Sudan
Speaker 4: or Libya or any other country it wants to. You
Speaker 4: won't have an opportunity to be able to raise a
Speaker 4: claim that you would be tortured in that country. You
Speaker 4: can only raise a claim that you will be tortured
Speaker 4: in your country a citizenship. But they'll say, fine, okay,
Speaker 4: so you'll be tortured in your country a citizenship, whatever
Speaker 4: that may be. But who cares, We're now going to
Speaker 4: send you to Libya or South Sudan or some other country,
Speaker 4: and so I did not expect the Supreme Court to
Speaker 4: not allow for some due process to be able to
Speaker 4: make these claims. But that is where we are, and
Speaker 4: so at the moment, unless the Supreme Court comes back
Speaker 4: and revisits this later, which by the way, it has
Speaker 4: done in other issues. There were some times during the
Speaker 4: Biden administration where it lets certain things go into effect
Speaker 4: that then it later said, this makes no sense, why
Speaker 4: did that happen, and then it actually enjoined them. And
Speaker 4: so this could and maybe even probably would happen later
Speaker 4: moving on in the future, especially depending on if the
Speaker 4: news starts getting really stark and people start actually dying,
Speaker 4: you know, if they get deported to certain places, then
Speaker 4: the facts may get bad enough that the Court does
Speaker 4: revisit this, and maybe more quickly than not. But at
Speaker 4: the moment, the current state of affairs is the Trump
Speaker 4: administration can deport any foreign national to any country it
Speaker 4: wants to, as long as it's not their country of
Speaker 4: citizenship where they fear persecution or torture.
Speaker 2: So in the past month, the Trump administration has ramped
Speaker 2: up raids on home holmes, workplaces, courthouses, some more than
Speaker 2: one hundred and fifty lawsuits across the US have been
Speaker 2: filed alleging that federal agents are using excessive force and
Speaker 2: warrantless arrests while engaging in illegal racial profiling to target
Speaker 2: non white people. I see why they're suing. Do these
Speaker 2: suits have a chance.
Speaker 4: Well, the problem is these are very fact intensive suits
Speaker 4: that don't really lend themselves to class action. What they
Speaker 4: lend themselves really, if you're looking at this again from
Speaker 4: the dispassionate computerized judge, issue is, in a specific case,
Speaker 4: was a specific person apprehended by ICE because of an
Speaker 4: enforcement action that violated the need to go get a warrant. So,
Speaker 4: for instance, as an example, suppose that ICE was in
Speaker 4: an apartment building and had a warrant to get one person,
Speaker 4: Joe Smith at apartment one oh one, and then ICE
Speaker 4: just started knocking on all the doors. Than anytime someone
Speaker 4: opened a door who look you of a certain ethnic group,
Speaker 4: that I just apprehended that person and been asked questions later,
Speaker 4: that would be a situation where that person's apprehension would
Speaker 4: violate the Fourth Amendment. And then they could say, within
Speaker 4: the context of their removal proceedings, you need to dismiss
Speaker 4: my removal proceedings because they started on the basis of
Speaker 4: this violation of my Fourth Amendment right, So that would
Speaker 4: be the way to handle that. As a class, it
Speaker 4: becomes more complicated because there unfortunately does need to be
Speaker 4: This is sort of one of the oddest debates. And
Speaker 4: this debate I saw it a lot when I was
Speaker 4: a staffer in the Congress, and I'd have this debate
Speaker 4: with many of my fellow Democratic colleagues. I'd say, look,
Speaker 4: the whole point of these alienage statutes, whether you like
Speaker 4: it or not, is there does need to be a
Speaker 4: certain racial profiling component to it, because the whole point
Speaker 4: is we need to profile are you a citizen or
Speaker 4: are you not? And so we need to get to
Speaker 4: the bottom of that, and so we do need to
Speaker 4: treat people differently on this. This isn't like another law
Speaker 4: where you know it's burglary and that we don't care
Speaker 4: about the human being who's doing the burglary. We just
Speaker 4: ask are you in the house? We find, we arrestue.
Speaker 4: If you're not in the house, you're not the burglar.
Speaker 4: We don't arrestue. Okay, those are easy, but the whole
Speaker 4: purpose of these crimes. Unfortunately is these are status based crimes.
Speaker 4: This is not like other crimes. So you do have
Speaker 4: to treat certain people differently just based on their status.
Speaker 4: And so because of that, this becomes very complicated because
Speaker 4: the government does have to arrest people on the basis
Speaker 4: of these sort of immutable factors which are their status.
Speaker 4: And so that's why I don't think as these cases
Speaker 4: percolate up the courts. They may be successful at the
Speaker 4: beginning in certain individual district courts, but as these cases
Speaker 4: percolate up the courts, I think that the Supreme which
Speaker 4: has been very very adverse to any kind of facial
Speaker 4: challenges of any kind and has always really been trying
Speaker 4: to push litigants towards these as applied challenges in their
Speaker 4: particular case, especially in this type of framework, is really
Speaker 4: going to say to individuals, look, if I did something
Speaker 4: to you in your particular case, challenge it either within
Speaker 4: the context of your removal proceeding, or sue them. You know,
Speaker 4: let's say you're a US citizen and you got placed
Speaker 4: in nice custody for ten days, to them and say
Speaker 4: why was I placed a nice custody for ten days?
Speaker 4: And you know, get civil damages or something like that.
Speaker 4: But to actually have injunctive relief that sort of creates
Speaker 4: new procedures that ICE has to follow. I don't think
Speaker 4: that the Supreme Court is going to allow that to
Speaker 4: be put in place.
Speaker 2: Class actions are not easy. Thanks so much, Leon. That's
Speaker 2: Leon Fresco of Hound and Knight. Coming up. Who wins
Speaker 2: Who loses? In Trump's Tax Bill? This is Bloomberg and
Speaker 2: nearly nine hundred pages. President Trump's new tax bill is
Speaker 2: a sprawling collection of tax breaks, spending cuts, and other
Speaker 2: Republican priorities, including new money for national defense and deportations.
Speaker 2: So who wins and who loses? My guest is an
Speaker 2: expert in tax law, Alex Raskolnikov, a professor at Columbia
Speaker 2: Law School. Alex, what are your biggest takeaways from the bill?
Speaker 1: Well, the two biggest takeaways is one, it's enormously expensive,
Speaker 1: and it just drings the moment of reckoning much closer.
Speaker 1: It's going to increase the deficit by trillions of dollars,
Speaker 1: and sooner or later the bond market is going to
Speaker 1: make us pay. That's in terms of revenue and then
Speaker 1: in terms of distribution. It is basically an extension of
Speaker 1: twenty seventeen bill, which favored the better off, and this
Speaker 1: one favors the better off even more because of the
Speaker 1: pretty harsh measures having to do with health care and
Speaker 1: food stems at the bottom of the distribution, So it's
Speaker 1: pretty regressive.
Speaker 2: The Congressional Budget Office projected the bill would increase federal
Speaker 2: deficits by nearly three point three trillion, But Senate Republicans
Speaker 2: are proposing a different strategy of figuring that out.
Speaker 1: Yes, okay, it's easier to understand with spending than with taxes.
Speaker 1: So I'll just give you an example of what Democrats
Speaker 1: may do next time they're in power. So let's say
Speaker 1: they want to help people who are struggling economically, and
Speaker 1: they decide to enact the program that's going to guarantee
Speaker 1: every American an annual income of let's say forty thousand
Speaker 1: dollars a year. Okay, so if you make twenty, you're
Speaker 1: going to get extra twenty, and if you make ten,
Speaker 1: you're going to get extra thirty. And if you make nothing,
Speaker 1: you get forty thousand a year. So, you know, not lavish,
Speaker 1: but pretty good. Obviously, it's going to cost enormous amount
Speaker 1: of money, right, so the Democrats are going to say, oh,
Speaker 1: but we're going to enact this program only for one month.
Speaker 1: So they pass a law that enacts is unbelievably generous
Speaker 1: program for one month, and a week later they convene again.
Speaker 1: Congress convenes again and say, well, we're now going to
Speaker 1: extend this program permanently. How much is going to cost?
Speaker 1: And so what Republicans are saying now equivalent to what
Speaker 1: Democrats are going to say, then it's going to cost nothing.
Speaker 1: It's going to cost nothing because there's already a forty
Speaker 1: thousand dollars payment. And so we're just continuing with what
Speaker 1: Republicans call current policy. It's not the law. The law
Speaker 1: is that the program expires, but the policy is that
Speaker 1: the program is active now, and so it costs nothing.
Speaker 1: To extend something forever that costs enormous amount of money.
Speaker 1: So that's the trick.
Speaker 2: It's quite a trick. You mentioned the Medicaid and snap
Speaker 2: how many people are going to be out of health insurance.
Speaker 1: So here too, they're varying forecasts, and of course Democrats
Speaker 1: are saying more in Republicans are saying less. So I
Speaker 1: think a pretty reasonable forecast is about ten million people
Speaker 1: will lose insurance, will lose Medicaid. The big reason is
Speaker 1: there's going to be work requirements, and so people who
Speaker 1: can't meet them will lose coverage. Half of the ten
Speaker 1: million roughly these are all estimates, but half of the
Speaker 1: ten million is estimated to lose medicaid because they will
Speaker 1: not comply with work requirements because you know, it's like
Speaker 1: they may not have access to the internet, or they
Speaker 1: may not just understand how to feel forms, or they
Speaker 1: may not know that they need to feal forms. So
Speaker 1: these people would not comply with requirements even though they
Speaker 1: could comply, they just won't feel the right form in
Speaker 1: the right place. Now you're talking about low income population
Speaker 1: with you know, hard lives and a lot of worries about,
Speaker 1: you know, where the food is going to come from tomorrow.
Speaker 1: So it's not unreasonable to say that some people will
Speaker 1: just not do what they should do and could in
Speaker 1: principle do. But it's an estimate. But under any estimate,
Speaker 1: any estimate, I think it's safe to say that millions
Speaker 1: of people are going to lose medicale And what about.
Speaker 2: The claim that you know, the very very rich billionaires, etc.
Speaker 2: Are going to benefit from the bill?
Speaker 1: They're definitely going to benefit from the bill. I don't
Speaker 1: understand where the claims are coming on the Democratic side,
Speaker 1: but there's the greatest beneficiary or that this is the
Speaker 1: bill that's like the biggest giveaway to billionaires. Official scoring
Speaker 1: from the government does not show distributional consequences above two
Speaker 1: million a year of income, so we're not definitely talking
Speaker 1: about billionaires, and you know, these people are going to
Speaker 1: be better off. The bill is fairly regressive, but it's
Speaker 1: not specific to billionaires. When I'm thinking about what specific
Speaker 1: provisions in the bill can disproportionately benefit billionaires, I don't
Speaker 1: think them. So there are definitely provisions that benefit millionaires
Speaker 1: and multimillionaires and billionaires, but in terms of the impact
Speaker 1: in terms of how it's going to feel compared to
Speaker 1: the taxes they pay. Now, it's going to be millionaires
Speaker 1: and people making you know, somewhere from two to five
Speaker 1: hundred thousand a year who are going to really feel
Speaker 1: the biggest difference in terms of comparing to what they're paying.
Speaker 2: Now, what about the salt taxes? I mean they raise
Speaker 2: those just for a time.
Speaker 1: That's why I said that, you know, it's millionaires and
Speaker 1: people making two to hundred thousands a year, so two
Speaker 1: to five hundred thousand a year reference was about soul,
Speaker 1: So it's a pretty noticeable change. It's temporary, but noticeable
Speaker 1: extra allowance of a deduction that will be felt by
Speaker 1: people making about that amount, like two to five hundred
Speaker 1: thousand something like that. So, of course, state taxes vary
Speaker 1: by state and the thresholds vary by state, so it's
Speaker 1: hard to be prec but roughly, like you know, the
Speaker 1: affluent people who are not rich probably but doing well.
Speaker 1: Now you said it's temporary, Yeah, it's temporary. The entire
Speaker 1: personal income tax side of twenty seventeen reform was temporary
Speaker 1: and guess what, it just became permanent. So this is
Speaker 1: the thing both parties tried to do. Democrats tried to
Speaker 1: do it with build back better you know, if something
Speaker 1: is expensive. They passed these changes in law that's temporary
Speaker 1: changes fully hoping and planning to make them permanent, because
Speaker 1: not making them permanent, you could argue, is a tax increase.
Speaker 2: And what about some of the promises that Trump made,
Speaker 2: like no tax on tips.
Speaker 1: Yes, it's also temporary, but it's enacted. There will be
Speaker 1: no tax on tips. How much money is going to
Speaker 1: save is a question. You need to remember that about
Speaker 1: forty percent of taxpayers they know federal income tax, and
Speaker 1: that's what we're talking about here, we're talking about changes
Speaker 1: in federal income tax law. So about forty percent being
Speaker 1: no federal income tax at all, and so no tax
Speaker 1: on tips means nothing to them. Then of course it
Speaker 1: won't surprise you that the compliance rate on reporting kIPS
Speaker 1: is not super high. So some people who are not
Speaker 1: reporting any kIPS even though they get them, you know,
Speaker 1: that doesn't matter for them that there's going to be
Speaker 1: no tax on chips. But for some people it will
Speaker 1: and it feels good, you know, if you're getting kIPS.
Speaker 1: But there's like this new rule that you don't have
Speaker 1: to pay tax. It's also temporary. So just like this
Speaker 1: state in local tax xtra reduction is going to expire,
Speaker 1: I think by the end of twenty eight and then
Speaker 1: those see it's going to be the same game again
Speaker 1: and again that not extending, it will be a tax increase.
Speaker 2: And what about no taxes on Social Security? That didn't happen,
Speaker 2: did it?
Speaker 1: No, that did not happen. I'll tell you something happened.
Speaker 1: But whatever happened definitely is not no tax on Social Security.
Speaker 1: What happened is that seniors get an extra deduction six thousand,
Speaker 1: double for married couples. Extra deduction. Now, what does it
Speaker 1: mean in terms of Social Security? And seniors are people
Speaker 1: who get Social Security most of them, So a lot
Speaker 1: of people who already get Social Security now are part
Speaker 1: of that forty percent that don't owe any federal income taxes.
Speaker 1: So a deduction is useless if you don't owe any tax.
Speaker 1: For some people who do pay some taxes, this deduction
Speaker 1: will possibly reduce or possibly eliminate the tax, so for
Speaker 1: them it's going to be a valuable deduction. But it's
Speaker 1: not specifically tied to Social Security income. And for some
Speaker 1: people who paid a lot of money into the system
Speaker 1: and received pretty or maybe have some other sources of income,
Speaker 1: they will take a deduction of extra six thousand and
Speaker 1: will still low tax. So there's no rule that says
Speaker 1: social secure the income is not subject.
Speaker 2: I've been hearing from people who have heavy student loan debt,
Speaker 2: usually medical school or graduate school debt, complaining about what
Speaker 2: this bill does, what have they changed there?
Speaker 1: So they definitely may changes to long repaining programs. They're complicated,
Speaker 1: I mean it depends on what kind of loans these are,
Speaker 1: It depends on the kinds of jobs people do, and
Speaker 1: it also depends on how much money people learned. These
Speaker 1: changes affect people whose loan payments were reduced because their
Speaker 1: incomes were sufficiently low. So doctors are not the first
Speaker 1: people who come to mind when you think about this,
Speaker 1: But for people whose incomes are fairly low, you know,
Speaker 1: for some of them, loan repayments under the old program
Speaker 1: were just eliminated basically as long as the income is law,
Speaker 1: and that has gone away, so as I understand that
Speaker 1: there will be either many fewer or no people who
Speaker 1: owe student loan payments who will be allowed to pay
Speaker 1: nothing at all. But I think the minimum payment from
Speaker 1: what I've seen, is something like ten dollars a month,
Speaker 1: So it's more of an instrument for the government like
Speaker 1: to know who owes something than a real payment. Ten dollars,
Speaker 1: I think is a pretty phenomenal amount. That's one big
Speaker 1: change in student loan repayment. I'm sure there are others,
Speaker 1: but these are complex programs.
Speaker 2: Is it still a boon to businesses?
Speaker 1: So yes, there are new deductions very favorable basically allowing
Speaker 1: businesses to subtract what they pay on equipment, and also
Speaker 1: on R and B. You know, if a business buy
Speaker 1: the machine that's going to last ten years or twenty years,
Speaker 1: the economic depreciation lasts for twenty years. The value of
Speaker 1: the machine gradually declines with where and care. But these
Speaker 1: provisions allow subtraction immediately of whatever is spent the equipment
Speaker 1: and also on R and B. The argument where this
Speaker 1: is not terrible is that it's supposed to be promoting
Speaker 1: economic growth. Right, so if businesses can invest in equipment
Speaker 1: and this and that long lived asset and take deductions
Speaker 1: right away, it makes it more profitable for the business
Speaker 1: to do so, so they will do the investment, they
Speaker 1: will invest in research and so on. So that's the
Speaker 1: standard economic rationale for allowing this generous deduction. It's basically
Speaker 1: a subsidy. It's not reflecting economic deterioration. The counter argument
Speaker 1: is that this is a subsidy for equipment like long
Speaker 1: lasting equipment, and long lasting equipment these days is robots,
Speaker 1: and so this is a tax incentive. And you know,
Speaker 1: the machines are replacing people increasingly, so maybe it's not
Speaker 1: a good idea to facilitate them. And further replacements of
Speaker 1: people by machine. So that's sort of a more recent
Speaker 1: concern that this bill does not address and intact makes
Speaker 1: more serious.
Speaker 2: The rise of AI. Can't get away from it. There
Speaker 2: were a lot of promises made with the last tax
Speaker 2: bill passed during Trump's first administration. What was the real
Speaker 2: effect of the last bill?
Speaker 1: There was nothing like, nothing like what Republicans were saying
Speaker 1: in twenty seventeen. There was some economic growth in nominal terms,
Speaker 1: meaning if you just look at dollars that was attributed
Speaker 1: to the exchanges, and I think if you look at
Speaker 1: the growth of the economy as percentage of growth domestic product,
Speaker 1: they basically was not. So again, you know, there are
Speaker 1: many ways to do this estimates and democratic economists and
Speaker 1: Republican economists again come out with predictable differences. But it
Speaker 1: was pretty clear then, I mean, there was really no significant,
Speaker 1: serious doubts that the growth effects are not going to
Speaker 1: be large, and they weren't, and so it's going to
Speaker 1: be the same this time. Well, of course this comes
Speaker 1: on top of massive threat of tariffs that are really
Speaker 1: bad for growth. So you know, like this is hardly
Speaker 1: a Congress and the president for super focused on economic growth.
Speaker 2: And that may be an understatement, we'll see. Thanks so
Speaker 2: much for joining me.
Speaker 4: Alex.
Speaker 2: That's Professor Alex Raskolnikov of Columbia Law School. And that's
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
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