WEBVTT - Trump Demands End to Due Process for Illegal Immigrants

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. President Trump continues

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<v Speaker 1>to ratchet up his rhetoric on immigration policy, tweeting that

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<v Speaker 1>illegal immigrants should be sent back without an appearance before

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<v Speaker 1>a judge without due process. At the same time his

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<v Speaker 1>critics are calling for due process for detainees. Democratic Senator

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<v Speaker 1>Elizabeth Warren spoke to reporters after visiting detainees at our

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<v Speaker 1>border control center in McAllen, Texas. When a woman comes

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<v Speaker 1>here with her four year old son and says, I

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<v Speaker 1>am asking for amnesty. I have been threatened by gangs

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<v Speaker 1>in my home country, we should at least give her

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<v Speaker 1>a hearing. Joining me as Rick, super professor at Syrah

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<v Speaker 1>Ques University and an expert in immigration law, Rick, under

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<v Speaker 1>US law and the international treaties that we are Party two,

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<v Speaker 1>can Trump just turn away immigrants at the border without

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<v Speaker 1>a hearing of any kind? Uh? Not if they're making

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<v Speaker 1>a credible claim for asylum. Um and many of these

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<v Speaker 1>Central Americans who are coming are in fact here to

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<v Speaker 1>make that particular claim under those obligations, they deserve at

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<v Speaker 1>least the pre screening kind of the past. That hearing

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<v Speaker 1>on their particular claim tell us about due process and

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<v Speaker 1>whether due process applies to immigrants. So this is actually

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

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<v Speaker 1>but there actually is already a process by which Congress

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<v Speaker 1>has authorized the presidents to remove individuals without having to

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<v Speaker 1>go through a judge or hearing. That's assuming that there

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

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<v Speaker 1>The irony of his statement. Trump's statement is actually the

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<v Speaker 1>reason why there is so much more hearings than judges now,

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<v Speaker 1>is the because of the zero tolerance policy. Is because

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<v Speaker 1>he said that he wants to criminally prosecute everyone that

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<v Speaker 1>comes other than just to remove them. Uh. So it's

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<v Speaker 1>not clear what if he really is just interested in removal,

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<v Speaker 1>then zero tolerance seems to go against that. If he

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<v Speaker 1>wants to criminally prosecute other than remove them, give them

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

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<v Speaker 1>Can he do that by executive order or does he

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<v Speaker 1>need Congress to act. So Congress right now already has

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<v Speaker 1>something called exbsity removal, and that was passing that allows him,

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<v Speaker 1>under certain circumstances to remove individuals without being subject to

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<v Speaker 1>a hearing or appearance before a judge. Um. Now, if

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

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

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<v Speaker 1>that's been used for quite a while. There are some

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<v Speaker 1>people who say that itself maybe a due process violation,

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<v Speaker 1>but no court is sound that to be the case. Um.

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<v Speaker 1>If there wasn't a final came made, however, then Congress

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<v Speaker 1>would have to change that. Uh. And actually it's not

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<v Speaker 1>clear they could either because of our international obligations. But

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<v Speaker 1>in some way is what he's complaining about is again

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<v Speaker 1>something of his own making. It's a zero tolerance policy

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<v Speaker 1>that is coming against his use of explod removal, which

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<v Speaker 1>is just for removal, not for prosecution. People who are

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<v Speaker 1>following this are often hearing one case name the Flores

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<v Speaker 1>consent decree. Tell us about that and what that requires.

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<v Speaker 1>So the Floora's consent degree essentially is about the treatment

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<v Speaker 1>of children who are in US custody. Um. It was

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<v Speaker 1>applied up until this point primarily for unaccompanied miners people

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<v Speaker 1>children who came without parents at all. It was only

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<v Speaker 1>recently that the argument was made that we were to

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<v Speaker 1>take children away from their parents, then they become unaccompanied

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<v Speaker 1>and therefore the Flora's agreement comes into play. But the

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<v Speaker 1>Floor's agreement by itself essentially is about not uh the

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<v Speaker 1>conditions of custody for children and a strongly favors releasing

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<v Speaker 1>them either to a sponsor or to a parent, and

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<v Speaker 1>not keep them in custody while their claims are being heard. Um.

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<v Speaker 1>And that's why it's coming up right now, is about

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<v Speaker 1>whether or not uh, they need to be sort of released,

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<v Speaker 1>especially when the administration wants to keep the parents in

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<v Speaker 1>jail pending criminal prosecution. Tell tell me about what the

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<v Speaker 1>proceedings have been before, um, A federal district judge Dolly

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<v Speaker 1>g about the Flora's decision. Yeah. So essentially, what the

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<v Speaker 1>Obama administration had tried to do or thought when there

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<v Speaker 1>was the surge of accompanying miners coming with their parents,

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<v Speaker 1>was to try to maintain many of them in some

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<v Speaker 1>sort of family detention facility. Um. But that when this

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<v Speaker 1>particular the Florest Agreement with a long time ago. Right,

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<v Speaker 1>So this is uh in thees. Essentially, what the recent

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<v Speaker 1>judge said is that even for these individuals who are accompanied,

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<v Speaker 1>the Florist Agreement still applies. And therefore what the floor

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<v Speaker 1>this particular ruling on the Florist agreement said was that

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<v Speaker 1>children really should be released, hopefully ideally within twenty days

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<v Speaker 1>uh and be kept in detention while they await their

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<v Speaker 1>proceeding UM. And that's essentially what Obama did towards a

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<v Speaker 1>lot of years of his administration, uh, and that drew

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<v Speaker 1>the ire of this idea of catch and release. Rick,

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<v Speaker 1>We're learning a lot about some of the children who

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<v Speaker 1>have been held before Trump became president and um and

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<v Speaker 1>the conditions that they've been held in. There are a

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<v Speaker 1>lot of allegations. Tell us what what you know and

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<v Speaker 1>where where this stands right now? Yeah, So one thing

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<v Speaker 1>that Obama confronted, which Trump is a from fronting now

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

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<v Speaker 1>And there were a lot of allegations under the Obama

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<v Speaker 1>administration that the facilities that they set up for were

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<v Speaker 1>uh inadequate, that there were all sorts of concerns about

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<v Speaker 1>the conditions themselves, allegations of abuse UM and and the like. UM. Now,

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<v Speaker 1>there were a little bit of different with regard to

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<v Speaker 1>facilities that were set up for immediate detention. This was

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<v Speaker 1>done by Department Homeless Security, and of course the facilities

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<v Speaker 1>handled by Office of Refugee and Settlement. Those are a

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<v Speaker 1>little bit different, but both have been alleged to be

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<v Speaker 1>inadequate in their own way. UM. That is essentially why

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<v Speaker 1>the bambinistration ultimately concluded that the expense and the difficulty

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<v Speaker 1>of doing this uh could be a leevie. By releasing

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<v Speaker 1>certain individuals out UH, there's some assurance that they would

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<v Speaker 1>show up for hearing. UH. It seems like the zero

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<v Speaker 1>tallenge policy and the proproach of the Trump administration is

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<v Speaker 1>to go back to that particular stance of trying to

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<v Speaker 1>keep them in detention and maybe doing family separation as well. UM.

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<v Speaker 1>And essentially they're confronting the same problem of the Bomb

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<v Speaker 1>administration confronted, but just in a much larger scale. So

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<v Speaker 1>what who is who is suing um for these children

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<v Speaker 1>right now who are still being held in in these facilities.

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<v Speaker 1>So there's a lot of different immigration attorneys that are

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<v Speaker 1>involved in this representing specific individual clients. UM, and there

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<v Speaker 1>are civil rights organizations representing a group of them that

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<v Speaker 1>are challenging this UM. And really all the focus right

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<v Speaker 1>now is UH. A lot of the focus right now

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<v Speaker 1>is on trying to clarify the limits of the Floors

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<v Speaker 1>agreement and how that would apply, UH, and more generally,

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<v Speaker 1>UH lobbying Congress to UH do something or impose some

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<v Speaker 1>sort of requirement on what needs to be done in

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<v Speaker 1>this case. Congress has acted on this issue on several occasions, UH,

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<v Speaker 1>though not this particular situation because it's I don't think

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<v Speaker 1>it was anticipated that it would come to this Rick

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

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<v Speaker 1>a lot about the children being reunited with their parents

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<v Speaker 1>children who were taken away. Is is that more a

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<v Speaker 1>logistical problem now than a legal problem? Uh, it's a

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

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<v Speaker 1>and that is just the coordination between all the various

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

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<v Speaker 1>and I think we're getting reports of that. But there

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<v Speaker 1>is a legal issue here as well, because it's not

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

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<v Speaker 1>the Trump administration is a very unclear of whether or

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

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

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<v Speaker 1>these individuals won't be released, so that would potentially mean

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<v Speaker 1>detention for both parents and children in a different facility.

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<v Speaker 1>All right, thanks so much, Rick. This is a really

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<v Speaker 1>complicated issue and we appreciate your insight. That's ricks to

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<v Speaker 1>a professor at Syracuse University Law School. American Express when

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<v Speaker 1>a major victory the Supreme Court today in a five

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<v Speaker 1>to four ruling, the court throughout a lawsuit by the

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<v Speaker 1>federal government and more than a dozen states accusing AMEX

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<v Speaker 1>of thwarting competition with its policy. Joining me is Bloomberg,

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<v Speaker 1>New Supreme Court reporter Greg's store. So Gregg tell us

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<v Speaker 1>about this decision, hi June, because, Yeah, this is a

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<v Speaker 1>case where, um, the federal government and what are now

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<v Speaker 1>eleven states we're suing American Express saying that the policy

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<v Speaker 1>they have uh forwards competition. And what the policy did

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<v Speaker 1>was it said, uh it does is it says to merchants,

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<v Speaker 1>you cannot if you're going to accept our card, you

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<v Speaker 1>cannot try to steer customers to another credit card that

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<v Speaker 1>charges you lower fees, So the merchant can't say, hey,

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<v Speaker 1>pay pay for your purchase with this other card and

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<v Speaker 1>will give you a discount customer. The Supreme Court today

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<v Speaker 1>throughout this lawsuit, said the government had focused too much

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<v Speaker 1>on the impact on merchants and hadn't shown that there

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<v Speaker 1>was actually any negative impact on the ultimate consumers. Why

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<v Speaker 1>did this case divide the court along ideological lines? Is

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

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<v Speaker 1>I trust cases do this sometimes, um, not not always.

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<v Speaker 1>Justice Brier wrote, wrote a dissenting opinion. UM, and it's

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<v Speaker 1>you know, basically just just um uh different views on

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<v Speaker 1>whether a business practice might actually be harming competition. That's

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<v Speaker 1>the kind of thing that UM. Liberals and Democratic appointees

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<v Speaker 1>have a tendency to be quicker to say, yes, there

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<v Speaker 1>is harm to competition and that's what happened here. Does

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<v Speaker 1>this Does this case have any implications for the tech industry?

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<v Speaker 1>It might well. So there was a lot of concern

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<v Speaker 1>among consumer advocates that if the court did what it

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<v Speaker 1>ALTI ended up doing here, uh, throwing up the suit

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<v Speaker 1>allowing this American Express policy that it can make it

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<v Speaker 1>harder to sue UM high tech companies as well. And basically,

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<v Speaker 1>the the what this whole thing is about is order

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<v Speaker 1>known as two sided markets, where you have two transactions

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<v Speaker 1>that are going on that are closely connected to each other.

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<v Speaker 1>In American expresses case, it's with a merchant and with

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<v Speaker 1>a customer and UM. Those kinds of two sided markets

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<v Speaker 1>happen a lot in the tech industry. So, for example,

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<v Speaker 1>Uber is dealing both with the driver and with the

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<v Speaker 1>passenger and UH. The concern among consumer advocates and they're

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<v Speaker 1>they're concerned today is that this ruling will make it

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<v Speaker 1>much much harder to challenge a company like Uber if

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<v Speaker 1>there's there are some indications that they are forwarding competition

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<v Speaker 1>one way or another. So, Greg, there was another gerrymandering

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<v Speaker 1>decision which promises to be controversial as well. Tell us

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<v Speaker 1>about that. Yeah, So, so the court ruled in a

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<v Speaker 1>Texas case that where a lower court had said that

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<v Speaker 1>Republican lawmakers in Texas head intentionally discriminated on the basis

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<v Speaker 1>of race and drawing districts. Now it's a little in

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<v Speaker 1>the court again divided five to four with the Conservatives

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<v Speaker 1>in the majority. This was a little bit of an

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<v Speaker 1>unusual case because Texas defense was um. The districts we

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<v Speaker 1>drew were actually ones that a court in an earlier

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<v Speaker 1>phase of his litigation had put in place as interim maps.

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<v Speaker 1>And even if you now think that those districts are

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<v Speaker 1>um are are potentially discriminatory, you can't find us to

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<v Speaker 1>have intentionally discriminated if all we were doing was using

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<v Speaker 1>a map that apparently a court thought was good enough

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<v Speaker 1>to be put in place on an interim basis. The

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<v Speaker 1>Supreme Court today agreed with Republicans, and with one minor

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<v Speaker 1>exception when small exception said that these two challenged maps,

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<v Speaker 1>one for the state legislature one for for Congress, could stand.

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<v Speaker 1>So Judge greg was it the was it the facts

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<v Speaker 1>of this case? Does the Supreme Court still stand for

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<v Speaker 1>the fact that you know part isn't racial gerrymandering is

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

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<v Speaker 1>Or does it not stand for that anymore? Yeah? No, No,

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<v Speaker 1>it's the racial gerrymander can still be a problem. And

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<v Speaker 1>the reason I say can and not necessarily is is

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<v Speaker 1>that because you have the Voting Rights Act in the background,

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<v Speaker 1>which sometimes requires people to to think about race when

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

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<v Speaker 1>is designed to ensure that minorities don't get blocked out

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

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<v Speaker 1>so there are always some there's always some ability to

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<v Speaker 1>use race. But here in this case, the Supreme Court

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<v Speaker 1>uh made it much harder to sue. In particular, UM,

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<v Speaker 1>it's more likely to be a Republican legislature for doing

0:13:32.440 --> 0:13:35.080
<v Speaker 1>things that that, in the views of those who sued,

0:13:35.760 --> 0:13:38.720
<v Speaker 1>actually made it harder for minorities to elect somebody if

0:13:38.720 --> 0:13:41.160
<v Speaker 1>they're choosing. About a minute, here, tell us about what

0:13:41.240 --> 0:13:45.240
<v Speaker 1>happened in the North Carolina case. Yes, so this is

0:13:45.280 --> 0:13:48.440
<v Speaker 1>a partisan juryman during case and not racial juryman dring.

0:13:48.520 --> 0:13:53.000
<v Speaker 1>And last week we recall the Court basically punted in

0:13:53.040 --> 0:13:56.760
<v Speaker 1>a couple of big partisan jurymandering cases. Refused to decide

0:13:56.800 --> 0:13:58.800
<v Speaker 1>whether you could ever have a district that was so

0:13:59.400 --> 0:14:03.320
<v Speaker 1>uh artisan that it was unconstitutional. There's another case about

0:14:03.320 --> 0:14:07.280
<v Speaker 1>the North Carolina court throughout Republican drawing districts. Today, the

0:14:07.320 --> 0:14:10.680
<v Speaker 1>Supreme Court UH basically kicked that case back, said take

0:14:10.679 --> 0:14:13.199
<v Speaker 1>another look at it. Ultimately, I think it will go

0:14:13.280 --> 0:14:15.080
<v Speaker 1>back up to the Supreme Court, probably at the end

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<v Speaker 1>of next term. All right, Greg, well, breathe deeply. Tomorrow

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<v Speaker 1>we're going to be checking in with you again because

0:14:20.680 --> 0:14:24.400
<v Speaker 1>the Court is going to be issuing more opinions coming up.

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<v Speaker 1>That's Bloomberg New Supreme Court reporter Greg Store. One of

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<v Speaker 1>the opinions that we're waiting for, of course, is the

0:14:29.920 --> 0:14:32.880
<v Speaker 1>opinion on the Trump travel ban, which has gone up

0:14:32.880 --> 0:14:35.440
<v Speaker 1>to the Supreme Court, as well as the opinion on

0:14:35.640 --> 0:14:38.640
<v Speaker 1>mandatory union fees that will be coming up this week

0:14:38.640 --> 0:14:41.240
<v Speaker 1>as the Court near the end of its term this week.

0:14:41.680 --> 0:14:44.640
<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

0:14:44.680 --> 0:14:48.359
<v Speaker 1>subscribe and listen to the show on Apple podcast, SoundCloud,

0:14:48.480 --> 0:14:52.360
<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brasso.

0:14:52.880 --> 0:14:54.119
<v Speaker 1>This is Bloomberg