1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you insight and analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 5 00:00:16,280 --> 00:00:19,680 Speaker 1: and on Bloomberg dot com slash podcasts. It's one of 6 00:00:19,720 --> 00:00:23,440 Speaker 1: the biggest cases of the Supreme Court's term, involving presidential 7 00:00:23,520 --> 00:00:27,200 Speaker 1: powers and the fate of seven hundred thousands so called dreamers, 8 00:00:27,440 --> 00:00:31,640 Speaker 1: and in oral arguments the Supreme Courts conservative justices seemed 9 00:00:31,640 --> 00:00:35,000 Speaker 1: inclined to let President Trump cancel the DOCCA program that 10 00:00:35,080 --> 00:00:40,559 Speaker 1: shields those young undocumented immigrants from deportation. Justice Sonya Soto Mayora, 11 00:00:40,640 --> 00:00:44,160 Speaker 1: like some of the other liberal justices, expressed concern about 12 00:00:44,200 --> 00:00:47,680 Speaker 1: the reliance dreamers placed on the DOCCA program. I think 13 00:00:47,720 --> 00:00:50,080 Speaker 1: my colleagues have rightly pointed there's a whole lot of 14 00:00:50,120 --> 00:00:55,800 Speaker 1: reliance interests that were looked at, including the very president 15 00:00:55,960 --> 00:01:03,600 Speaker 1: of current president telling DOCTA eligible people that they were 16 00:01:03,640 --> 00:01:07,440 Speaker 1: safe under him and that he would find a way 17 00:01:07,480 --> 00:01:13,040 Speaker 1: to keep them here, and so he hasn't and instead 18 00:01:13,120 --> 00:01:16,520 Speaker 1: he's done this, and that I think has something to 19 00:01:16,720 --> 00:01:21,000 Speaker 1: be considered before you resend a policy right, not just 20 00:01:21,120 --> 00:01:23,600 Speaker 1: saying I'll give you six months to do it right, 21 00:01:24,160 --> 00:01:28,320 Speaker 1: to destroy your lives. But some conservative justices accepted the 22 00:01:28,360 --> 00:01:32,800 Speaker 1: administration's reasons for terminating DACA. Others saw no point in 23 00:01:32,840 --> 00:01:36,480 Speaker 1: making the Trump administration provide more elaborate reasoning in the future. 24 00:01:36,880 --> 00:01:40,920 Speaker 1: Here's Justice Neil Gorsch. I think your your friend on 25 00:01:40,920 --> 00:01:43,560 Speaker 1: the other side, would say, we did addrest for Alliance 26 00:01:43,640 --> 00:01:46,520 Speaker 1: interrists in a paragraph, and we could do it in 27 00:01:46,640 --> 00:01:50,520 Speaker 1: fifteen pages. But we'd say pretty much the same thing 28 00:01:50,560 --> 00:01:53,040 Speaker 1: at the end of the day, and it takes another 29 00:01:53,120 --> 00:01:57,080 Speaker 1: six years, and it would leave this class of persons 30 00:01:57,240 --> 00:02:01,800 Speaker 1: under a continuing cloud of uncertainty and continue stasis in 31 00:02:01,840 --> 00:02:05,200 Speaker 1: the political branches because they would not have a baseline 32 00:02:05,240 --> 00:02:08,359 Speaker 1: rule of decision from this court. Joining me is Neil Kinkoff, 33 00:02:08,360 --> 00:02:11,880 Speaker 1: a professor of constitutional law at Georgia State University College 34 00:02:11,880 --> 00:02:16,919 Speaker 1: of Law, explain the issue before the justices. The issue 35 00:02:17,000 --> 00:02:22,519 Speaker 1: is a fairly technical issue relating to the agency's discretion 36 00:02:22,680 --> 00:02:28,160 Speaker 1: to rescind the DACCA program. And really it turns on 37 00:02:28,200 --> 00:02:34,560 Speaker 1: the question of why the administration is rescinding the DOCCA program. 38 00:02:34,600 --> 00:02:38,480 Speaker 1: If it's doing it just as a matter of policy, discretion, 39 00:02:39,160 --> 00:02:44,280 Speaker 1: then that decision is essentially unreviewable by the courts. If, 40 00:02:44,360 --> 00:02:47,880 Speaker 1: on the other hand, it's doing it because it thinks 41 00:02:48,000 --> 00:02:52,400 Speaker 1: DACA was illegal, then the court can review that decision. 42 00:02:53,000 --> 00:02:54,920 Speaker 1: And so a lot of the argument had to do 43 00:02:55,040 --> 00:02:59,000 Speaker 1: with that. And one of the arguments that gets made is, well, 44 00:02:59,160 --> 00:03:02,640 Speaker 1: why should it matter. The administration clearly wants to rescind this, 45 00:03:02,880 --> 00:03:06,760 Speaker 1: so who cares whether it's for reasons of law or 46 00:03:06,800 --> 00:03:11,480 Speaker 1: reasons of policy discretion. And the answer is twofold. First 47 00:03:11,520 --> 00:03:17,000 Speaker 1: of all, the agency's decision leaned very heavily on the 48 00:03:17,080 --> 00:03:23,600 Speaker 1: supposed illegality of DHAKA and gave only very brief attention 49 00:03:23,680 --> 00:03:28,280 Speaker 1: to policy reasons. And in fact, President Trump himself has 50 00:03:28,360 --> 00:03:30,600 Speaker 1: said that as a matter of policy, he wants to 51 00:03:30,639 --> 00:03:34,920 Speaker 1: adhere to something like DACA. So if it's based only 52 00:03:34,960 --> 00:03:38,760 Speaker 1: on policy, it's not actually clear that the administration would 53 00:03:38,800 --> 00:03:42,680 Speaker 1: rescind data. And so in fact, their emphasis has been 54 00:03:42,840 --> 00:03:45,840 Speaker 1: on the argument that well, it was illegal, it really 55 00:03:46,240 --> 00:03:50,240 Speaker 1: unlikely to be true reading of the law. And so 56 00:03:50,360 --> 00:03:53,520 Speaker 1: the court is wrestling with this question of whether or 57 00:03:53,600 --> 00:03:57,680 Speaker 1: not they should force the administration to own the policy, 58 00:03:57,760 --> 00:04:01,400 Speaker 1: which is ultimately the stakes in this case. Transparency the 59 00:04:01,480 --> 00:04:06,000 Speaker 1: administration if it wants to rescind Daca can but it 60 00:04:06,040 --> 00:04:08,200 Speaker 1: needs to say we are doing it, and we are 61 00:04:08,240 --> 00:04:11,600 Speaker 1: doing it as a matter of policy, and not hide 62 00:04:11,640 --> 00:04:16,719 Speaker 1: behind a lawyer's legal opinion. Didn't a solicitor general say 63 00:04:16,720 --> 00:04:20,120 Speaker 1: at the arguments we own the policy. He did, But 64 00:04:20,279 --> 00:04:25,000 Speaker 1: that's hardly a sort of official pronouncement to the public 65 00:04:25,400 --> 00:04:29,400 Speaker 1: from the administration. Right, So the solicitor General saying this 66 00:04:29,520 --> 00:04:33,480 Speaker 1: in the cosseted warrens of the Supreme Court doesn't have 67 00:04:33,520 --> 00:04:37,320 Speaker 1: the same kind of transparency as the Secretary of the 68 00:04:37,360 --> 00:04:40,800 Speaker 1: Department of Homeland Security or the President actually in a 69 00:04:40,880 --> 00:04:44,960 Speaker 1: press conference saying on camera, we are rescinding the Dacca 70 00:04:45,080 --> 00:04:48,720 Speaker 1: policy because we are opposed to this policy. Right, That's 71 00:04:48,720 --> 00:04:51,599 Speaker 1: a position, in fact, the President has never been willing 72 00:04:52,160 --> 00:04:56,240 Speaker 1: to take, and every public pronouncement he's made is one 73 00:04:56,279 --> 00:04:59,480 Speaker 1: of sympathy for Dacca and for the dreamers. So the 74 00:05:00,040 --> 00:05:03,000 Speaker 1: insequence of a Supreme Court ruling should be that if 75 00:05:03,040 --> 00:05:06,240 Speaker 1: the president wants to do that, the president has to 76 00:05:06,279 --> 00:05:10,320 Speaker 1: own it. So Neil. It seems from everyone who was 77 00:05:10,600 --> 00:05:16,200 Speaker 1: watching the arguments that the conservative justices seem to support 78 00:05:16,360 --> 00:05:19,599 Speaker 1: the Trump administration in this and seem to be willing 79 00:05:19,600 --> 00:05:23,360 Speaker 1: to rule that DACA is illegal. Well, I'm not sure 80 00:05:23,360 --> 00:05:25,960 Speaker 1: they're going to be willing to rule that DOCCA is illegal. 81 00:05:26,160 --> 00:05:29,919 Speaker 1: I think it's pretty clear that the conservative justices want 82 00:05:30,040 --> 00:05:33,680 Speaker 1: to just say, well, the president can resend this policy 83 00:05:33,680 --> 00:05:36,160 Speaker 1: if the president wants to, and we'd really rather not 84 00:05:36,279 --> 00:05:39,760 Speaker 1: get into the reasons. Some of the conservative justices said 85 00:05:39,800 --> 00:05:43,320 Speaker 1: they think DOCCA is illegal, although it's awfully hard to 86 00:05:43,360 --> 00:05:47,599 Speaker 1: square that conclusion with their conclusion that President Trump's travel 87 00:05:47,680 --> 00:05:51,440 Speaker 1: ban was permissible. Right, I mean, it's not the same 88 00:05:51,480 --> 00:05:55,240 Speaker 1: section of the immigration law, but it is still the 89 00:05:55,279 --> 00:05:58,800 Speaker 1: immigration law, and the underpinning of that case. The reasoning 90 00:05:58,839 --> 00:06:02,200 Speaker 1: for that case was the immigration law gives the president 91 00:06:02,760 --> 00:06:06,360 Speaker 1: great discretion with respect to who comes in and who 92 00:06:06,400 --> 00:06:10,880 Speaker 1: stays in, and if that's right, the same reasoning leads 93 00:06:10,920 --> 00:06:14,240 Speaker 1: to the conclusion that President Obama's decision about whom to 94 00:06:14,320 --> 00:06:18,040 Speaker 1: deport is well within the kind of discretion that the 95 00:06:18,080 --> 00:06:20,920 Speaker 1: immigration law gives to the president. And in fact, there's 96 00:06:20,960 --> 00:06:25,160 Speaker 1: an awful lot of precedent from president's Republican and democratic 97 00:06:25,560 --> 00:06:28,560 Speaker 1: doing exactly the kind of thing the President Obama did. 98 00:06:29,000 --> 00:06:31,760 Speaker 1: So I don't think the Court is actually very eager 99 00:06:31,839 --> 00:06:36,080 Speaker 1: to get at the legality of Dhaka itself. So might 100 00:06:36,120 --> 00:06:40,640 Speaker 1: the Conservative justices be willing then to say that the 101 00:06:40,760 --> 00:06:45,360 Speaker 1: reasoning for it, the policy reasons behind it, were legitimate. 102 00:06:45,839 --> 00:06:48,520 Speaker 1: It could The problem of them doing that is the 103 00:06:48,520 --> 00:06:53,920 Speaker 1: policy reasons articulated we're really really thin. And so if 104 00:06:53,960 --> 00:06:57,880 Speaker 1: the administration is going to resend Dhaka on policy grounds, 105 00:06:57,920 --> 00:07:01,320 Speaker 1: the Administrative Procedure Act makes it pretty clear they need 106 00:07:01,360 --> 00:07:04,159 Speaker 1: to say what those crowns are right, They need to 107 00:07:04,240 --> 00:07:08,599 Speaker 1: actually do the policy analysis and not say, well, this 108 00:07:08,680 --> 00:07:11,800 Speaker 1: is some political promise from the President that that we're 109 00:07:11,840 --> 00:07:14,120 Speaker 1: trying to enforce. So where do you think the court 110 00:07:14,160 --> 00:07:17,320 Speaker 1: will come down. I think ultimately they're going to issue 111 00:07:17,440 --> 00:07:22,080 Speaker 1: a not very clear opinion that has the conclusion that 112 00:07:22,200 --> 00:07:25,040 Speaker 1: the President can rassind Dhaka. I don't think it's going 113 00:07:25,040 --> 00:07:27,880 Speaker 1: to be very clear exactly why they're letting him do that, 114 00:07:28,240 --> 00:07:31,200 Speaker 1: other than to say, well, the President has discretion here 115 00:07:31,440 --> 00:07:35,480 Speaker 1: and we don't want to get involved in interfering with that. 116 00:07:36,000 --> 00:07:39,200 Speaker 1: Is it going to be dependent on Chief Justice Robert 117 00:07:39,520 --> 00:07:43,720 Speaker 1: because you mentioned the travel ban, so he was with 118 00:07:43,760 --> 00:07:46,960 Speaker 1: the Conservatives and the travel band case, but he was 119 00:07:47,240 --> 00:07:51,640 Speaker 1: with the liberals in the census question case. So is 120 00:07:51,640 --> 00:07:55,080 Speaker 1: it up to him. Well, he's the obvious justice that 121 00:07:55,240 --> 00:07:59,880 Speaker 1: sometimes swings against presidential power. So he's he's the fit 122 00:08:00,160 --> 00:08:03,040 Speaker 1: vote that I think, for the most part, people are 123 00:08:03,080 --> 00:08:06,320 Speaker 1: looking for. I think certainly Justice Kavanaugh is not going 124 00:08:06,360 --> 00:08:10,200 Speaker 1: to vote for the Dreamers. I don't think Thomas will 125 00:08:10,560 --> 00:08:13,680 Speaker 1: Gore such an Alito are are possible as well. So 126 00:08:13,800 --> 00:08:16,680 Speaker 1: I don't think Roberts is the only potential swing vote, 127 00:08:16,680 --> 00:08:20,119 Speaker 1: but he's the most likely. Justice. Sonia Soto Mayor said, 128 00:08:20,160 --> 00:08:22,480 Speaker 1: this is not about the law. This is about our 129 00:08:22,600 --> 00:08:26,160 Speaker 1: choice to destroy lives. If it's not about the law, 130 00:08:26,200 --> 00:08:29,680 Speaker 1: then why is it before the Supreme Court? And is 131 00:08:29,720 --> 00:08:33,360 Speaker 1: she going outside? You know the confines of what's before 132 00:08:33,400 --> 00:08:38,480 Speaker 1: the court. Well, the law requires the administrative agency to 133 00:08:38,679 --> 00:08:43,319 Speaker 1: make a reasoned decision, and so the reasons it gives 134 00:08:43,520 --> 00:08:48,640 Speaker 1: relate to the dramatic consequences that follow from ending DAKA, 135 00:08:48,960 --> 00:08:51,559 Speaker 1: and so I think what Justice Soto Mayor was getting 136 00:08:51,600 --> 00:08:55,319 Speaker 1: at there is it is the proper role of the 137 00:08:55,320 --> 00:08:59,600 Speaker 1: courts to force the administration to consider the consequences of 138 00:08:59,640 --> 00:09:02,800 Speaker 1: its action. They can't tell them not to take the action, 139 00:09:03,240 --> 00:09:07,320 Speaker 1: but the administration has to consider and justify those consequences. 140 00:09:07,360 --> 00:09:10,560 Speaker 1: And if you look at the actual policy rationale it gave. 141 00:09:10,679 --> 00:09:14,080 Speaker 1: Like I said, it's incredibly thin. It notices that there 142 00:09:14,080 --> 00:09:18,040 Speaker 1: would be dramatic consequences to deporting all the Dreamers, and 143 00:09:18,080 --> 00:09:22,600 Speaker 1: then says, essentially, our hands are tied because Dacca was illegal. Well, 144 00:09:22,640 --> 00:09:25,840 Speaker 1: if that's wrong, that Dacca was illegal, now it has 145 00:09:25,880 --> 00:09:30,360 Speaker 1: to consider whether or not it's willing to voluntarily impose 146 00:09:30,440 --> 00:09:35,800 Speaker 1: those consequences. And nothing in their rationale indicated that they 147 00:09:35,800 --> 00:09:39,920 Speaker 1: were willing voluntarily to impose those consequences. Only that g 148 00:09:40,120 --> 00:09:43,240 Speaker 1: We're sorry, our hands are tied because Dacca was illegal. 149 00:09:43,760 --> 00:09:47,640 Speaker 1: What impressed you about the arguments? The impression I came 150 00:09:47,640 --> 00:09:52,839 Speaker 1: away with was just how how much the conservative justices 151 00:09:52,960 --> 00:09:56,760 Speaker 1: really wanted to defer to the executive branch. I think 152 00:09:56,800 --> 00:10:00,520 Speaker 1: that has real foreboding for a lot of cases that 153 00:10:00,559 --> 00:10:03,360 Speaker 1: are coming down the pike, not just the Dreamer case, 154 00:10:03,440 --> 00:10:08,160 Speaker 1: which deals with an important, even almost existential question for 155 00:10:08,280 --> 00:10:11,319 Speaker 1: hundreds of thousands of Americans. I don't want to minimize 156 00:10:11,360 --> 00:10:14,240 Speaker 1: the importance of that case, but when we think about it, 157 00:10:14,320 --> 00:10:17,240 Speaker 1: saying the context of the ongoing impeachment and all of 158 00:10:17,280 --> 00:10:21,520 Speaker 1: the legal questions relating to that, I think the posture 159 00:10:21,559 --> 00:10:25,800 Speaker 1: that the conservative justices took at oral argument sort of 160 00:10:26,440 --> 00:10:29,439 Speaker 1: has a foreshadowing for cases that are apt to come 161 00:10:29,440 --> 00:10:32,360 Speaker 1: out of that other area. I mean, I don't think 162 00:10:32,360 --> 00:10:36,120 Speaker 1: there's a very important legal question involved in this case. 163 00:10:36,240 --> 00:10:41,080 Speaker 1: You know, ultimately, of course, the Trump administration can rescind DOKA. 164 00:10:41,240 --> 00:10:44,480 Speaker 1: It was a matter of executive discretion when Obama issued it, 165 00:10:44,600 --> 00:10:48,200 Speaker 1: and it's a matter of executive discretion to rescind it. 166 00:10:48,200 --> 00:10:50,480 Speaker 1: It is the case that they have to give good 167 00:10:50,480 --> 00:10:54,160 Speaker 1: and valid reasons and stick by those reasons. But I 168 00:10:54,200 --> 00:10:57,040 Speaker 1: have a certain amount of sympathy for the argument that, well, 169 00:10:57,320 --> 00:11:00,280 Speaker 1: why bother making them go back and redo it, because 170 00:11:00,320 --> 00:11:02,720 Speaker 1: they're just going to paper the record, and you know, 171 00:11:03,000 --> 00:11:05,680 Speaker 1: maybe they will. In fact, I expect that they will, 172 00:11:05,840 --> 00:11:08,680 Speaker 1: but there's a chance that they wouldn't, And given the 173 00:11:08,720 --> 00:11:12,200 Speaker 1: importance of the issue, I think it's maybe appropriate to 174 00:11:12,240 --> 00:11:14,640 Speaker 1: make them do it right. But again, it's not a 175 00:11:14,720 --> 00:11:18,319 Speaker 1: very important question of law. It's very clear that this 176 00:11:18,440 --> 00:11:21,520 Speaker 1: is just a matter of executive discretion, and what's being 177 00:11:21,640 --> 00:11:24,960 Speaker 1: argued over isn't whether the president has the power or 178 00:11:25,000 --> 00:11:27,719 Speaker 1: whether the administration has the power. It's more did they 179 00:11:28,000 --> 00:11:31,360 Speaker 1: dot their eyes and cross their keys? Thanks Neil, that's 180 00:11:31,400 --> 00:11:35,040 Speaker 1: Neil Kinkoff, a professor at Georgia State University College of Law. 181 00:11:38,000 --> 00:11:40,920 Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can 182 00:11:40,960 --> 00:11:44,720 Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud, 183 00:11:44,800 --> 00:11:48,680 Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso. 184 00:11:49,160 --> 00:11:53,000 Speaker 1: This is Bloomberg Ye.