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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. President Trump continues

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Speaker 1: to ratchet up his rhetoric on immigration policy, tweeting that

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Speaker 1: illegal immigrants should be sent back without an appearance before

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Speaker 1: a judge without due process. At the same time his

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Speaker 1: critics are calling for due process for detainees. Democratic Senator

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Speaker 1: Elizabeth Warren spoke to reporters after visiting detainees at our

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Speaker 1: border control center in McAllen, Texas. When a woman comes

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Speaker 1: here with her four year old son and says, I

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Speaker 1: am asking for amnesty. I have been threatened by gangs

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Speaker 1: in my home country, we should at least give her

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Speaker 1: a hearing. Joining me as Rick, super professor at Syrah

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Speaker 1: Ques University and an expert in immigration law, Rick, under

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Speaker 1: US law and the international treaties that we are Party two,

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Speaker 1: can Trump just turn away immigrants at the border without

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Speaker 1: a hearing of any kind? Uh? Not if they're making

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Speaker 1: a credible claim for asylum. Um and many of these

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Speaker 1: Central Americans who are coming are in fact here to

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Speaker 1: make that particular claim under those obligations, they deserve at

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Speaker 1: least the pre screening kind of the past. That hearing

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Speaker 1: on their particular claim tell us about due process and

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Speaker 1: whether due process applies to immigrants. So this is actually

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Speaker 1: quite interesting. Uh, it's a topic that's been debated a lot,

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Speaker 1: but there actually is already a process by which Congress

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Speaker 1: has authorized the presidents to remove individuals without having to

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Speaker 1: go through a judge or hearing. That's assuming that there

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Speaker 1: isn't an asylum claim, and in fact that's been used since. Um.

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Speaker 1: The irony of his statement. Trump's statement is actually the

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Speaker 1: reason why there is so much more hearings than judges now,

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Speaker 1: is the because of the zero tolerance policy. Is because

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Speaker 1: he said that he wants to criminally prosecute everyone that

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Speaker 1: comes other than just to remove them. Uh. So it's

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Speaker 1: not clear what if he really is just interested in removal,

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Speaker 1: then zero tolerance seems to go against that. If he

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Speaker 1: wants to criminally prosecute other than remove them, give them

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Speaker 1: prison time, that's why we're talking about judges and hearings.

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Speaker 1: Can he do that by executive order or does he

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Speaker 1: need Congress to act. So Congress right now already has

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Speaker 1: something called exbsity removal, and that was passing that allows him,

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Speaker 1: under certain circumstances to remove individuals without being subject to

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Speaker 1: a hearing or appearance before a judge. Um. Now, if

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Speaker 1: they were to remove them, that wouldn't be criminal prosecution.

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Speaker 1: There'd be no prison time there. Um. And in fact,

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Speaker 1: that's been used for quite a while. There are some

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Speaker 1: people who say that itself maybe a due process violation,

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Speaker 1: but no court is sound that to be the case. Um.

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Speaker 1: If there wasn't a final came made, however, then Congress

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Speaker 1: would have to change that. Uh. And actually it's not

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Speaker 1: clear they could either because of our international obligations. But

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Speaker 1: in some way is what he's complaining about is again

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Speaker 1: something of his own making. It's a zero tolerance policy

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Speaker 1: that is coming against his use of explod removal, which

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Speaker 1: is just for removal, not for prosecution. People who are

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Speaker 1: following this are often hearing one case name the Flores

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Speaker 1: consent decree. Tell us about that and what that requires.

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Speaker 1: So the Floora's consent degree essentially is about the treatment

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Speaker 1: of children who are in US custody. Um. It was

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Speaker 1: applied up until this point primarily for unaccompanied miners people

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Speaker 1: children who came without parents at all. It was only

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Speaker 1: recently that the argument was made that we were to

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Speaker 1: take children away from their parents, then they become unaccompanied

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Speaker 1: and therefore the Flora's agreement comes into play. But the

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Speaker 1: Floor's agreement by itself essentially is about not uh the

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Speaker 1: conditions of custody for children and a strongly favors releasing

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Speaker 1: them either to a sponsor or to a parent, and

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Speaker 1: not keep them in custody while their claims are being heard. Um.

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Speaker 1: And that's why it's coming up right now, is about

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Speaker 1: whether or not uh, they need to be sort of released,

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Speaker 1: especially when the administration wants to keep the parents in

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Speaker 1: jail pending criminal prosecution. Tell tell me about what the

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Speaker 1: proceedings have been before, um, A federal district judge Dolly

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Speaker 1: g about the Flora's decision. Yeah. So essentially, what the

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Speaker 1: Obama administration had tried to do or thought when there

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Speaker 1: was the surge of accompanying miners coming with their parents,

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Speaker 1: was to try to maintain many of them in some

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Speaker 1: sort of family detention facility. Um. But that when this

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Speaker 1: particular the Florest Agreement with a long time ago. Right,

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Speaker 1: So this is uh in thees. Essentially, what the recent

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Speaker 1: judge said is that even for these individuals who are accompanied,

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Speaker 1: the Florist Agreement still applies. And therefore what the floor

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Speaker 1: this particular ruling on the Florist agreement said was that

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Speaker 1: children really should be released, hopefully ideally within twenty days

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Speaker 1: uh and be kept in detention while they await their

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Speaker 1: proceeding UM. And that's essentially what Obama did towards a

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Speaker 1: lot of years of his administration, uh, and that drew

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Speaker 1: the ire of this idea of catch and release. Rick,

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Speaker 1: We're learning a lot about some of the children who

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Speaker 1: have been held before Trump became president and um and

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Speaker 1: the conditions that they've been held in. There are a

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Speaker 1: lot of allegations. Tell us what what you know and

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Speaker 1: where where this stands right now? Yeah, So one thing

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Speaker 1: that Obama confronted, which Trump is a from fronting now

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Speaker 1: is that it's very difficult to ramp up detention capacity capabilities.

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Speaker 1: And there were a lot of allegations under the Obama

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Speaker 1: administration that the facilities that they set up for were

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Speaker 1: uh inadequate, that there were all sorts of concerns about

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Speaker 1: the conditions themselves, allegations of abuse UM and and the like. UM. Now,

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Speaker 1: there were a little bit of different with regard to

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Speaker 1: facilities that were set up for immediate detention. This was

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Speaker 1: done by Department Homeless Security, and of course the facilities

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Speaker 1: handled by Office of Refugee and Settlement. Those are a

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Speaker 1: little bit different, but both have been alleged to be

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Speaker 1: inadequate in their own way. UM. That is essentially why

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Speaker 1: the bambinistration ultimately concluded that the expense and the difficulty

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Speaker 1: of doing this uh could be a leevie. By releasing

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Speaker 1: certain individuals out UH, there's some assurance that they would

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Speaker 1: show up for hearing. UH. It seems like the zero

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Speaker 1: tallenge policy and the proproach of the Trump administration is

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Speaker 1: to go back to that particular stance of trying to

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Speaker 1: keep them in detention and maybe doing family separation as well. UM.

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Speaker 1: And essentially they're confronting the same problem of the Bomb

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Speaker 1: administration confronted, but just in a much larger scale. So

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Speaker 1: what who is who is suing um for these children

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Speaker 1: right now who are still being held in in these facilities.

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Speaker 1: So there's a lot of different immigration attorneys that are

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Speaker 1: involved in this representing specific individual clients. UM, and there

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Speaker 1: are civil rights organizations representing a group of them that

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Speaker 1: are challenging this UM. And really all the focus right

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Speaker 1: now is UH. A lot of the focus right now

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Speaker 1: is on trying to clarify the limits of the Floors

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Speaker 1: agreement and how that would apply, UH, and more generally,

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Speaker 1: UH lobbying Congress to UH do something or impose some

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Speaker 1: sort of requirement on what needs to be done in

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Speaker 1: this case. Congress has acted on this issue on several occasions, UH,

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Speaker 1: though not this particular situation because it's I don't think

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Speaker 1: it was anticipated that it would come to this Rick

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Speaker 1: just about a minute here. But you know, we've talked

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Speaker 1: a lot about the children being reunited with their parents

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Speaker 1: children who were taken away. Is is that more a

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Speaker 1: logistical problem now than a legal problem? Uh, it's a

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Speaker 1: little bit of both. UM. Certainly, there's a logistical problem,

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Speaker 1: and that is just the coordination between all the various

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Speaker 1: agencies ramping up all the information collecting. It's a bureaucratic nightmare,

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Speaker 1: and I think we're getting reports of that. But there

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Speaker 1: is a legal issue here as well, because it's not

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Speaker 1: clear after the unit sification what's going to happen. Um,

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Speaker 1: the Trump administration is a very unclear of whether or

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Speaker 1: not they're going to still stick with the zero tolerance policy,

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Speaker 1: which means criminal prosecution. But they're going to criminally prosecute them,

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Speaker 1: these individuals won't be released, so that would potentially mean

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Speaker 1: detention for both parents and children in a different facility.

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Speaker 1: All right, thanks so much, Rick. This is a really

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Speaker 1: complicated issue and we appreciate your insight. That's ricks to

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Speaker 1: a professor at Syracuse University Law School. American Express when

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Speaker 1: a major victory the Supreme Court today in a five

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Speaker 1: to four ruling, the court throughout a lawsuit by the

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Speaker 1: federal government and more than a dozen states accusing AMEX

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Speaker 1: of thwarting competition with its policy. Joining me is Bloomberg,

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Speaker 1: New Supreme Court reporter Greg's store. So Gregg tell us

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Speaker 1: about this decision, hi June, because, Yeah, this is a

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Speaker 1: case where, um, the federal government and what are now

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Speaker 1: eleven states we're suing American Express saying that the policy

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Speaker 1: they have uh forwards competition. And what the policy did

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Speaker 1: was it said, uh it does is it says to merchants,

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Speaker 1: you cannot if you're going to accept our card, you

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Speaker 1: cannot try to steer customers to another credit card that

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Speaker 1: charges you lower fees, So the merchant can't say, hey,

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Speaker 1: pay pay for your purchase with this other card and

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Speaker 1: will give you a discount customer. The Supreme Court today

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Speaker 1: throughout this lawsuit, said the government had focused too much

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Speaker 1: on the impact on merchants and hadn't shown that there

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Speaker 1: was actually any negative impact on the ultimate consumers. Why

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Speaker 1: did this case divide the court along ideological lines? Is

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Speaker 1: it just the business angle? It's a good question, m

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Speaker 1: I trust cases do this sometimes, um, not not always.

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Speaker 1: Justice Brier wrote, wrote a dissenting opinion. UM, and it's

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Speaker 1: you know, basically just just um uh different views on

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Speaker 1: whether a business practice might actually be harming competition. That's

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Speaker 1: the kind of thing that UM. Liberals and Democratic appointees

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Speaker 1: have a tendency to be quicker to say, yes, there

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Speaker 1: is harm to competition and that's what happened here. Does

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Speaker 1: this Does this case have any implications for the tech industry?

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Speaker 1: It might well. So there was a lot of concern

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Speaker 1: among consumer advocates that if the court did what it

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Speaker 1: ALTI ended up doing here, uh, throwing up the suit

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Speaker 1: allowing this American Express policy that it can make it

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Speaker 1: harder to sue UM high tech companies as well. And basically,

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Speaker 1: the the what this whole thing is about is order

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Speaker 1: known as two sided markets, where you have two transactions

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Speaker 1: that are going on that are closely connected to each other.

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Speaker 1: In American expresses case, it's with a merchant and with

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Speaker 1: a customer and UM. Those kinds of two sided markets

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Speaker 1: happen a lot in the tech industry. So, for example,

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Speaker 1: Uber is dealing both with the driver and with the

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Speaker 1: passenger and UH. The concern among consumer advocates and they're

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Speaker 1: they're concerned today is that this ruling will make it

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Speaker 1: much much harder to challenge a company like Uber if

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Speaker 1: there's there are some indications that they are forwarding competition

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Speaker 1: one way or another. So, Greg, there was another gerrymandering

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Speaker 1: decision which promises to be controversial as well. Tell us

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Speaker 1: about that. Yeah, So, so the court ruled in a

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Speaker 1: Texas case that where a lower court had said that

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Speaker 1: Republican lawmakers in Texas head intentionally discriminated on the basis

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Speaker 1: of race and drawing districts. Now it's a little in

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Speaker 1: the court again divided five to four with the Conservatives

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Speaker 1: in the majority. This was a little bit of an

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Speaker 1: unusual case because Texas defense was um. The districts we

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Speaker 1: drew were actually ones that a court in an earlier

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Speaker 1: phase of his litigation had put in place as interim maps.

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Speaker 1: And even if you now think that those districts are

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Speaker 1: um are are potentially discriminatory, you can't find us to

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Speaker 1: have intentionally discriminated if all we were doing was using

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Speaker 1: a map that apparently a court thought was good enough

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Speaker 1: to be put in place on an interim basis. The

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Speaker 1: Supreme Court today agreed with Republicans, and with one minor

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Speaker 1: exception when small exception said that these two challenged maps,

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Speaker 1: one for the state legislature one for for Congress, could stand.

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Speaker 1: So Judge greg was it the was it the facts

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Speaker 1: of this case? Does the Supreme Court still stand for

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Speaker 1: the fact that you know part isn't racial gerrymandering is

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Speaker 1: against the law, but it didn't happen in this case?

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Speaker 1: Or does it not stand for that anymore? Yeah? No, No,

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Speaker 1: it's the racial gerrymander can still be a problem. And

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Speaker 1: the reason I say can and not necessarily is is

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Speaker 1: that because you have the Voting Rights Act in the background,

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Speaker 1: which sometimes requires people to to think about race when

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Speaker 1: they're drawing districts, because the Voting Rights Act, among other things,

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Speaker 1: is designed to ensure that minorities don't get blocked out

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Speaker 1: of of being able to elect elect people. Uh they're choosing. Um,

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Speaker 1: so there are always some there's always some ability to

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Speaker 1: use race. But here in this case, the Supreme Court

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Speaker 1: uh made it much harder to sue. In particular, UM,

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Speaker 1: it's more likely to be a Republican legislature for doing

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Speaker 1: things that that, in the views of those who sued,

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Speaker 1: actually made it harder for minorities to elect somebody if

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Speaker 1: they're choosing. About a minute, here, tell us about what

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Speaker 1: happened in the North Carolina case. Yes, so this is

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Speaker 1: a partisan juryman during case and not racial juryman dring.

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Speaker 1: And last week we recall the Court basically punted in

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Speaker 1: a couple of big partisan jurymandering cases. Refused to decide

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Speaker 1: whether you could ever have a district that was so

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Speaker 1: uh artisan that it was unconstitutional. There's another case about

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Speaker 1: the North Carolina court throughout Republican drawing districts. Today, the

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Speaker 1: Supreme Court UH basically kicked that case back, said take

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Speaker 1: another look at it. Ultimately, I think it will go

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Speaker 1: back up to the Supreme Court, probably at the end

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Speaker 1: of next term. All right, Greg, well, breathe deeply. Tomorrow

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Speaker 1: we're going to be checking in with you again because

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Speaker 1: the Court is going to be issuing more opinions coming up.

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Speaker 1: That's Bloomberg New Supreme Court reporter Greg Store. One of

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Speaker 1: the opinions that we're waiting for, of course, is the

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Speaker 1: opinion on the Trump travel ban, which has gone up

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Speaker 1: to the Supreme Court, as well as the opinion on

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Speaker 1: mandatory union fees that will be coming up this week

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Speaker 1: as the Court near the end of its term this week.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brasso.

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Speaker 1: This is Bloomberg