1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,519 --> 00:00:15,440 Speaker 1: No No. On the streets, the US is embroiled in 3 00:00:15,520 --> 00:00:19,279 Speaker 1: its fiercest struggle over race since the nineteen sixties, but 4 00:00:19,360 --> 00:00:22,479 Speaker 1: in the courtrooms, conservatives are seeing their best shot in 5 00:00:22,600 --> 00:00:25,919 Speaker 1: decades to get rid of race in college admissions. Some 6 00:00:26,040 --> 00:00:29,760 Speaker 1: of the nation's most prestigious universities are fighting a raft 7 00:00:29,800 --> 00:00:34,080 Speaker 1: of legal challenges accusing them of unfairly waiting the admissions 8 00:00:34,120 --> 00:00:38,760 Speaker 1: process through affirmative action. The multiple efforts to defeat race 9 00:00:38,800 --> 00:00:43,159 Speaker 1: conscious admissions on several levels, including by Trump's Justice Department, 10 00:00:43,440 --> 00:00:47,120 Speaker 1: are intended to get an increasingly conservative Supreme Court to 11 00:00:47,280 --> 00:00:51,760 Speaker 1: rethink its decisions on affirmative action. My guest is Audrey Anderson, 12 00:00:51,800 --> 00:00:55,360 Speaker 1: who heads the education practice at Bass Barian Sims. She 13 00:00:55,520 --> 00:00:59,120 Speaker 1: was the former General counsel of Vanderbilt University. Audrey says, 14 00:00:59,160 --> 00:01:03,120 Speaker 1: it seems sort incongruous that this legal fight to reverse 15 00:01:03,160 --> 00:01:07,039 Speaker 1: affirmative action is picking up while the country is in 16 00:01:07,120 --> 00:01:11,160 Speaker 1: this epic struggle over race. Well, this is a little 17 00:01:11,160 --> 00:01:17,479 Speaker 1: bit penundrums of where the legal principles are with affirmative accents. 18 00:01:18,280 --> 00:01:21,600 Speaker 1: The marketing in the streets and Our protests are about 19 00:01:21,959 --> 00:01:27,440 Speaker 1: unjust treatment of people based on race. The legal constructs 20 00:01:27,640 --> 00:01:31,880 Speaker 1: for affirmative action at a college or university are not 21 00:01:32,040 --> 00:01:36,959 Speaker 1: justified on evening out the inequitable treatment based on race. 22 00:01:37,160 --> 00:01:41,640 Speaker 1: It's not to remedy past discrimination. So when we as 23 00:01:41,680 --> 00:01:45,080 Speaker 1: lawyers are thinking about this, the only reason that the 24 00:01:45,160 --> 00:01:52,160 Speaker 1: Supreme Court has approved consideration of race in university admissions 25 00:01:52,280 --> 00:01:55,840 Speaker 1: is in order to build a student body that has 26 00:01:55,920 --> 00:02:00,440 Speaker 1: a certain level of diversity to improve the educational period. 27 00:02:01,000 --> 00:02:05,200 Speaker 1: They are not allowed to use race and admissions in 28 00:02:05,400 --> 00:02:09,640 Speaker 1: order to make up for the hundreds of years of 29 00:02:09,720 --> 00:02:14,240 Speaker 1: discrimination against black and brown people in the United States. 30 00:02:14,680 --> 00:02:18,200 Speaker 1: So from a legal perspective, we're almost operating in two 31 00:02:18,280 --> 00:02:21,760 Speaker 1: different universes, and that's a really hard thing for people 32 00:02:21,800 --> 00:02:25,359 Speaker 1: to wrap their heads around. Behind the three major suits 33 00:02:25,400 --> 00:02:29,440 Speaker 1: against Harvard, the University of North Carolina, and the University 34 00:02:29,480 --> 00:02:33,720 Speaker 1: of Texas is the activists Edward Blum who founded Students 35 00:02:33,760 --> 00:02:37,320 Speaker 1: for Fair Admissions. Are they saying that these universities are 36 00:02:37,360 --> 00:02:40,560 Speaker 1: not complying with established law or are they saying more 37 00:02:40,600 --> 00:02:44,000 Speaker 1: than that? Well, Jude, I think they're really saying two things. 38 00:02:44,120 --> 00:02:47,920 Speaker 1: They are saying that Harvard is not complying with the 39 00:02:47,960 --> 00:02:51,400 Speaker 1: Supreme Court law that says, if you are going to 40 00:02:51,520 --> 00:02:55,400 Speaker 1: use race in university admissions, you have to do it 41 00:02:55,440 --> 00:03:00,000 Speaker 1: in a way that is narrowly colored. And Edward Blum 42 00:03:00,040 --> 00:03:03,680 Speaker 1: says that Harvard is not using race in a way 43 00:03:03,720 --> 00:03:07,200 Speaker 1: that is narrowly tailored. But make no mistake. In each 44 00:03:07,200 --> 00:03:11,320 Speaker 1: one of these cases, they are also arguing that actually 45 00:03:11,440 --> 00:03:15,400 Speaker 1: the Supreme Court precedents from the University of Michigan cases 46 00:03:15,760 --> 00:03:19,120 Speaker 1: are wrong, and that actually the proper way to read 47 00:03:19,160 --> 00:03:22,560 Speaker 1: the Constitution is to say that it does not allow 48 00:03:22,760 --> 00:03:26,800 Speaker 1: university to be conscious of a race to use race 49 00:03:27,040 --> 00:03:30,680 Speaker 1: as any kind of a factor in admission. In every 50 00:03:30,680 --> 00:03:33,680 Speaker 1: one of their briefs they drop a footnote that says, 51 00:03:33,880 --> 00:03:37,680 Speaker 1: lower Court, we know you can't consider this argument because 52 00:03:37,680 --> 00:03:40,440 Speaker 1: it's only for the Supreme Court. But by the way, 53 00:03:40,520 --> 00:03:43,520 Speaker 1: we think the Supreme Court decisions in the University of 54 00:03:43,520 --> 00:03:48,120 Speaker 1: Michigan cases are wrong. So Blum's ultimate goal is to 55 00:03:48,160 --> 00:03:51,800 Speaker 1: get the University of Michigan case overruled by the Supreme Court. 56 00:03:51,960 --> 00:03:55,840 Speaker 1: That's his ultimate goal in the Harvard case, which is 57 00:03:56,040 --> 00:04:00,160 Speaker 1: now at the Federal Appeals Court. Asians account for sent 58 00:04:00,280 --> 00:04:03,760 Speaker 1: of the admitted class at Harvard the plaintiffs said, if 59 00:04:03,840 --> 00:04:08,200 Speaker 1: judged purely on academics, they would make up of the 60 00:04:08,240 --> 00:04:12,200 Speaker 1: admitted class. So do the plaintiffs want everyone to be 61 00:04:12,320 --> 00:04:15,800 Speaker 1: judged purely on academics, So then Harvard would have a 62 00:04:15,880 --> 00:04:21,360 Speaker 1: class with Asian Americans. Well, that's one of the problems. 63 00:04:21,680 --> 00:04:26,479 Speaker 1: We're looking at it this way. Harvard and Yale and 64 00:04:26,520 --> 00:04:32,000 Speaker 1: Columbia and Stanford, they could completely fill their class a 65 00:04:32,160 --> 00:04:36,240 Speaker 1: number of times over with students with purple puff boys 66 00:04:36,480 --> 00:04:40,240 Speaker 1: and a purple cl So it's really just fillingness to 67 00:04:40,400 --> 00:04:43,680 Speaker 1: say that we're only going to judge students on the 68 00:04:43,720 --> 00:04:48,279 Speaker 1: basis of their quote unquote academic merit. What these schools 69 00:04:48,320 --> 00:04:51,040 Speaker 1: are trying to do, and what the Supreme Court has 70 00:04:51,040 --> 00:04:53,880 Speaker 1: said they have a First Amendment right to do, is 71 00:04:53,960 --> 00:04:59,320 Speaker 1: to choose students that they believe are best suited for 72 00:04:59,720 --> 00:05:02,839 Speaker 1: the institution, and that does not have to be death 73 00:05:02,920 --> 00:05:06,400 Speaker 1: based on academic merit. But f f f A and 74 00:05:06,520 --> 00:05:09,200 Speaker 1: other groups to like them keep trying to say, well, 75 00:05:09,640 --> 00:05:12,039 Speaker 1: all you should look at is academic merit, because that 76 00:05:12,240 --> 00:05:15,960 Speaker 1: is quote unquote objective, and any time you put a 77 00:05:16,120 --> 00:05:21,480 Speaker 1: subjective component into your admissions criteria, you might be discriminating 78 00:05:21,480 --> 00:05:25,000 Speaker 1: against someone what is the Justice Department's role here? So, 79 00:05:25,279 --> 00:05:29,680 Speaker 1: in general, the Justice Department has the responsibility to enforce 80 00:05:29,839 --> 00:05:33,520 Speaker 1: a federal law that we call Title six. Title six 81 00:05:33,560 --> 00:05:37,919 Speaker 1: of the Civil Rights Act requires that institutions that receive 82 00:05:38,040 --> 00:05:41,640 Speaker 1: federal funds cannot discriminate on the basis of rights. So 83 00:05:41,680 --> 00:05:45,600 Speaker 1: the Department of Justice is in charge of enforcing that law, 84 00:05:46,000 --> 00:05:49,880 Speaker 1: and it always has been since Trump has been in power. 85 00:05:50,560 --> 00:05:53,359 Speaker 1: The way that the Department of Justice has decided it 86 00:05:53,400 --> 00:05:57,120 Speaker 1: needs to enforce Titles fox is to make sure that 87 00:05:57,279 --> 00:06:01,280 Speaker 1: affirmative action is not being used to discriminate against whites 88 00:06:01,320 --> 00:06:05,560 Speaker 1: and Asians. Now, the Justice Department sent Yale University a 89 00:06:05,680 --> 00:06:10,799 Speaker 1: letter threatening to sue unless Yale agrees to stop considering race. 90 00:06:11,600 --> 00:06:16,000 Speaker 1: The government said that quote unlawfully dividing Americans into racial 91 00:06:16,040 --> 00:06:21,040 Speaker 1: and ethnic blocks fosters stereotypes, bitterness and division. Was this 92 00:06:21,160 --> 00:06:24,600 Speaker 1: letter unusual in any way? So the government, when it's 93 00:06:24,600 --> 00:06:27,760 Speaker 1: in fourth Entitle six can bring an accent in federal 94 00:06:27,800 --> 00:06:32,000 Speaker 1: courts to sue an institution to force it to comply 95 00:06:32,120 --> 00:06:35,120 Speaker 1: with the law. What they're supposed to do before bert 96 00:06:35,400 --> 00:06:38,800 Speaker 1: suit is work in good space with the institution to 97 00:06:38,880 --> 00:06:42,720 Speaker 1: negotiate to get the institution to comply with federal law. 98 00:06:43,200 --> 00:06:46,240 Speaker 1: So the unusual thing about this letter to Yale was 99 00:06:46,320 --> 00:06:49,680 Speaker 1: that it didn't go into much detail about exactly how 100 00:06:49,800 --> 00:06:53,440 Speaker 1: Yale was in violation of the law, what Yale could 101 00:06:53,520 --> 00:06:57,160 Speaker 1: do to come into compliance short of this not having 102 00:06:57,160 --> 00:07:00,640 Speaker 1: affirmative action and have kind of a timetabe for Yale 103 00:07:00,640 --> 00:07:04,159 Speaker 1: to come into compliance. Rather than just saying, you know, 104 00:07:04,240 --> 00:07:07,400 Speaker 1: if you don't stop using your affirmative action program in 105 00:07:07,440 --> 00:07:10,640 Speaker 1: the matter of weeks, we will sue you. Usually they 106 00:07:10,640 --> 00:07:14,440 Speaker 1: would say you need to consider applications in this way 107 00:07:14,800 --> 00:07:16,800 Speaker 1: rather than that way, and we'd like to see you 108 00:07:17,480 --> 00:07:22,120 Speaker 1: institute that change over the next admission cycle, and then 109 00:07:22,160 --> 00:07:24,480 Speaker 1: we'll take another look at your data, and then we'll 110 00:07:24,520 --> 00:07:26,920 Speaker 1: talk to you again, and then we'll determine whether we're 111 00:07:26,960 --> 00:07:29,120 Speaker 1: going to sue. So that's the way the Department of 112 00:07:29,200 --> 00:07:32,800 Speaker 1: Justice usually works with institutions. So that was one of 113 00:07:32,800 --> 00:07:35,400 Speaker 1: the things that was surprising about that letter to Yale. 114 00:07:35,880 --> 00:07:38,080 Speaker 1: So then, does this indicate a step up in the 115 00:07:38,120 --> 00:07:42,600 Speaker 1: Trump administration's overlooked of the use of affirmative action in 116 00:07:42,680 --> 00:07:46,880 Speaker 1: college admissions. Yes, it's a stump up and it's very aggressive. 117 00:07:47,120 --> 00:07:49,840 Speaker 1: As I was saying that the very short timing. They've 118 00:07:49,840 --> 00:07:52,640 Speaker 1: been Yale to say we're going to sue to me. 119 00:07:52,760 --> 00:07:55,720 Speaker 1: That sets off alarm belt because they're doing it. I 120 00:07:55,800 --> 00:07:59,200 Speaker 1: think the file suit before the election in case Trump 121 00:07:59,280 --> 00:08:01,960 Speaker 1: is not elected, and they'll already have that lawsuit going 122 00:08:02,040 --> 00:08:05,360 Speaker 1: and on the books, and a new bid administration will 123 00:08:05,360 --> 00:08:08,120 Speaker 1: have to deal with it with a lawsuit taking a 124 00:08:08,160 --> 00:08:11,040 Speaker 1: position that a BigMan decision probably won't want to take, 125 00:08:11,400 --> 00:08:15,400 Speaker 1: and they can change their position, but it's just administratively 126 00:08:15,520 --> 00:08:19,000 Speaker 1: and politically awkward. So the goal seems to be to 127 00:08:19,040 --> 00:08:22,000 Speaker 1: get this to the Supreme Court. Are they any closer 128 00:08:22,040 --> 00:08:25,920 Speaker 1: that goal? Absolutely? I think that the students for Fare 129 00:08:25,920 --> 00:08:28,760 Speaker 1: Admission has been strategic in the way that they are 130 00:08:28,800 --> 00:08:33,480 Speaker 1: pursuing this litigation. So the best way to get an 131 00:08:33,520 --> 00:08:36,400 Speaker 1: issue before the Supreme Court of the United States is 132 00:08:36,400 --> 00:08:39,920 Speaker 1: to generate what we call a conflict among the circuits. 133 00:08:39,920 --> 00:08:42,600 Speaker 1: So right now, the Harvard cases before the first Circuit 134 00:08:42,760 --> 00:08:46,320 Speaker 1: Court of Appeals, they will issue a decision right now, 135 00:08:46,320 --> 00:08:48,880 Speaker 1: are s f A is going to have a trial 136 00:08:49,160 --> 00:08:52,640 Speaker 1: happened in the Middle District of North Carolina for the 137 00:08:52,720 --> 00:08:56,320 Speaker 1: University of North Carolina. Whatever happens with that suit, it 138 00:08:56,360 --> 00:08:59,679 Speaker 1: will be appealed to the Fourth Circuit Court of Appeals. 139 00:09:00,040 --> 00:09:02,560 Speaker 1: Ever loses in the First Circuit with the Harvard case, 140 00:09:02,640 --> 00:09:05,200 Speaker 1: they will ask the Supreme Court to review it. Supreme 141 00:09:05,240 --> 00:09:08,080 Speaker 1: Court may review it, they may not. But then we 142 00:09:08,160 --> 00:09:11,160 Speaker 1: go to the North Carolina case. Whatever happens at trial, 143 00:09:11,200 --> 00:09:13,720 Speaker 1: they'll appeal it to the Fourth Circuit. Whatever happens at 144 00:09:13,720 --> 00:09:16,880 Speaker 1: the Fourth Circuit, whoever loses will go to the Supreme Court, 145 00:09:17,280 --> 00:09:19,719 Speaker 1: and at that point there will be a decision from 146 00:09:19,720 --> 00:09:23,320 Speaker 1: the First Circuit. If the Fourth Circuit disagrees with the 147 00:09:23,360 --> 00:09:26,760 Speaker 1: First Circuit, that's when the Supreme Court should be stepping in. 148 00:09:27,200 --> 00:09:29,640 Speaker 1: And then the Texas case is in yet another circuit, 149 00:09:29,760 --> 00:09:34,360 Speaker 1: in the Fifth Circuit. So Blomb, by kicking these schools 150 00:09:34,400 --> 00:09:38,280 Speaker 1: in different parts of the country, is trying to set up, 151 00:09:38,640 --> 00:09:42,560 Speaker 1: I think, a conflict amongst the circuits, which makes it 152 00:09:42,640 --> 00:09:46,280 Speaker 1: more likely that the Supreme Court will step in. If 153 00:09:46,280 --> 00:09:49,960 Speaker 1: the Supreme Court steps in, it will be a court 154 00:09:50,040 --> 00:09:53,560 Speaker 1: with a new conservative majority on it. Is there a 155 00:09:53,600 --> 00:09:57,960 Speaker 1: concern that the Court might reverse the Michigan decision. Yes, 156 00:09:58,080 --> 00:10:01,280 Speaker 1: I think there is a concern at will be overruled, 157 00:10:01,640 --> 00:10:04,520 Speaker 1: or they may don't even have to overrule it. You 158 00:10:04,640 --> 00:10:08,720 Speaker 1: might remember that in Rudder. The controlling opinion by Justice 159 00:10:08,800 --> 00:10:12,160 Speaker 1: O'Connor had language in it that I would call Getta 160 00:10:12,559 --> 00:10:15,199 Speaker 1: not important to the holding, not part of the holding. 161 00:10:15,600 --> 00:10:18,719 Speaker 1: But there's language in it that says, we don't expect 162 00:10:18,760 --> 00:10:22,160 Speaker 1: the need for affirmative action to go on forever. In 163 00:10:22,240 --> 00:10:25,400 Speaker 1: twenty five years, we won't need it anymore. That was 164 00:10:25,440 --> 00:10:29,000 Speaker 1: in two thousand and three. So I think that the 165 00:10:29,160 --> 00:10:32,280 Speaker 1: Supreme Court justice could even try to say, well, we're 166 00:10:32,320 --> 00:10:37,040 Speaker 1: not even overruling that precedent. We're just said, as Justice 167 00:10:37,040 --> 00:10:41,319 Speaker 1: O'Connor presisted, that the need for infirmative action is gone. Now, 168 00:10:41,320 --> 00:10:46,040 Speaker 1: when somebody says that, I think then the public will say, 169 00:10:46,240 --> 00:10:48,720 Speaker 1: we'll look at what's been happening in the streets the 170 00:10:48,840 --> 00:10:52,720 Speaker 1: summer and say, really, I'm not quite sure how you 171 00:10:52,760 --> 00:10:55,800 Speaker 1: can say the need for affirmative action is gone. Thanks 172 00:10:55,800 --> 00:10:58,920 Speaker 1: for being the Bloomberg Laws show. Audrey, that's Audrey Anderson 173 00:10:58,960 --> 00:11:04,480 Speaker 1: of Bass Variance MS. The clash over undocumented immigrants and 174 00:11:04,480 --> 00:11:08,160 Speaker 1: the Census is back at the Supreme Court. President Trump 175 00:11:08,280 --> 00:11:10,800 Speaker 1: lost the fight to add a citizenship question to the 176 00:11:10,840 --> 00:11:14,239 Speaker 1: census at the Court. His Plan B is an executive 177 00:11:14,320 --> 00:11:17,600 Speaker 1: order for federal agencies to hand over existing data on 178 00:11:17,760 --> 00:11:21,520 Speaker 1: undocumented immigrants to the Census Bureau so it can exclude 179 00:11:21,559 --> 00:11:24,200 Speaker 1: them from its count. Today, I'm here to say we 180 00:11:24,280 --> 00:11:27,000 Speaker 1: are not backing down on our reffort to determine the 181 00:11:27,040 --> 00:11:33,080 Speaker 1: citizenship status of the United States population. The problem is 182 00:11:33,120 --> 00:11:36,040 Speaker 1: that a three judge panel rule the President doesn't have 183 00:11:36,120 --> 00:11:39,280 Speaker 1: the authority to do that. So now Trump is back 184 00:11:39,320 --> 00:11:42,080 Speaker 1: at the Supreme Court to appeal that decision, and the 185 00:11:42,160 --> 00:11:45,640 Speaker 1: justices have decided to expedite his appeal. My guest is 186 00:11:45,720 --> 00:11:49,520 Speaker 1: Leon Fresco, a partner at Hollandon Knight. Trump has asked 187 00:11:49,640 --> 00:11:54,320 Speaker 1: the Supreme Court to let the President exclude undocumented immigrants 188 00:11:54,360 --> 00:11:57,559 Speaker 1: from the census count. Now, most people thinking about this 189 00:11:57,679 --> 00:12:01,320 Speaker 1: will say, well, wasn't this settled by the Supreme Court 190 00:12:01,559 --> 00:12:05,120 Speaker 1: when the court ruled that the administration couldn't ad a 191 00:12:05,120 --> 00:12:09,240 Speaker 1: citizenship question to the census. Well, that was a different case. 192 00:12:09,520 --> 00:12:14,880 Speaker 1: Impact The citizenship question was decided on a procedural issue 193 00:12:15,040 --> 00:12:18,600 Speaker 1: rather than the substantive decision of whether you could ask 194 00:12:18,640 --> 00:12:22,120 Speaker 1: about citizenship in the census. It was decided on the 195 00:12:22,160 --> 00:12:25,880 Speaker 1: fact that the Bourbon of Commerce the Census Bureau didn't 196 00:12:25,920 --> 00:12:29,320 Speaker 1: follow the correct procedures in order to add that question 197 00:12:29,640 --> 00:12:33,080 Speaker 1: so late in the process about citizenship, and that the 198 00:12:33,200 --> 00:12:36,680 Speaker 1: reasons that the government gave for adding that citizenship question 199 00:12:36,760 --> 00:12:40,400 Speaker 1: were pretextual because there had been some comments in the 200 00:12:40,480 --> 00:12:44,520 Speaker 1: record about wanting to add this for purposes of trying 201 00:12:44,600 --> 00:12:49,320 Speaker 1: to discount non citizen people from the census. And so 202 00:12:49,440 --> 00:12:51,840 Speaker 1: one could say, well, maybe that it covers it, but 203 00:12:51,920 --> 00:12:55,800 Speaker 1: it doesn't exactly cover it, because the issue wasn't decided 204 00:12:55,840 --> 00:12:58,959 Speaker 1: could you count non citizen people in the census. It 205 00:12:59,120 --> 00:13:02,200 Speaker 1: was just decide that that the reason that was given, 206 00:13:02,559 --> 00:13:06,920 Speaker 1: which was supposedly about voting right, was pretextual in light 207 00:13:07,000 --> 00:13:09,240 Speaker 1: of the comments that had been given about the non 208 00:13:09,280 --> 00:13:12,559 Speaker 1: citizens issue. So Leon tell us about this three judge 209 00:13:12,600 --> 00:13:16,640 Speaker 1: panel decision started as a case in the federal disrecord 210 00:13:16,679 --> 00:13:20,000 Speaker 1: in New York. But what happens is under the constitution, 211 00:13:20,080 --> 00:13:25,480 Speaker 1: apportionate cases under the census actually our three judge panel cases. 212 00:13:25,920 --> 00:13:29,199 Speaker 1: So two circuit judges from the Second Circuit were added 213 00:13:29,320 --> 00:13:32,720 Speaker 1: to the district judge in New York, and those three 214 00:13:32,800 --> 00:13:37,560 Speaker 1: judges entered an order that said that the calculation that 215 00:13:37,640 --> 00:13:42,160 Speaker 1: you would exclude people with undocumented statue from the census 216 00:13:42,200 --> 00:13:47,600 Speaker 1: was unconstitutional and violated the abortionment clause. My question is 217 00:13:47,600 --> 00:13:51,000 Speaker 1: more about the practical aspects of this. How would the 218 00:13:51,040 --> 00:13:57,400 Speaker 1: Trump administration conclusively determine who's an undocumented status and where 219 00:13:57,400 --> 00:14:02,040 Speaker 1: they're living to lower the census count. There are surveys 220 00:14:02,080 --> 00:14:05,840 Speaker 1: that are done both by the Department of Homeland Security 221 00:14:06,200 --> 00:14:10,079 Speaker 1: and by the Census Bureau in the American Community Survey 222 00:14:10,240 --> 00:14:13,120 Speaker 1: that's done on a more frequent basis and the ten 223 00:14:13,200 --> 00:14:16,520 Speaker 1: year Census basis that are supposed to find out that 224 00:14:16,600 --> 00:14:20,080 Speaker 1: information and take it into account and try to make 225 00:14:20,240 --> 00:14:25,000 Speaker 1: estimates as to what is the undocumented population in the country. 226 00:14:25,280 --> 00:14:29,720 Speaker 1: But those estimates are not very accurate, and so you 227 00:14:29,800 --> 00:14:34,280 Speaker 1: could be potentially costing a state, a member of Congress 228 00:14:34,760 --> 00:14:37,560 Speaker 1: if you are even the inaccurate on an order of 229 00:14:37,600 --> 00:14:40,320 Speaker 1: magnitude of a few thousand people one way or another. 230 00:14:40,920 --> 00:14:44,640 Speaker 1: And when we're talking about eleven million people or ten 231 00:14:44,680 --> 00:14:47,960 Speaker 1: million people or twelve million people, where we don't even 232 00:14:47,960 --> 00:14:52,880 Speaker 1: know and there's not really any estimates that's firm, there's 233 00:14:52,920 --> 00:14:55,800 Speaker 1: not a consensus on the estimate. Some people write these 234 00:14:55,800 --> 00:14:59,920 Speaker 1: reports that say that there's twenty million people that are undocumented, 235 00:15:00,040 --> 00:15:04,440 Speaker 1: and that lack of consensus that's out there really makes 236 00:15:04,480 --> 00:15:07,760 Speaker 1: it very hard to figure out how you deduce people 237 00:15:08,040 --> 00:15:10,520 Speaker 1: if you don't actually have an objective one for one 238 00:15:10,640 --> 00:15:14,080 Speaker 1: match in terms of census status. If they do that, 239 00:15:14,160 --> 00:15:17,240 Speaker 1: it sounds like it's ripe for challenge. Well correct, and 240 00:15:17,400 --> 00:15:21,320 Speaker 1: that was the argument actually the administration was making, is well, 241 00:15:21,840 --> 00:15:24,680 Speaker 1: tell us after the fact, if we actually hurt a 242 00:15:24,800 --> 00:15:29,720 Speaker 1: states apportionment, then you should challenge our calculation. Don't challenge 243 00:15:29,720 --> 00:15:34,160 Speaker 1: it now, it's too early. And the second Circuit rejective 244 00:15:34,200 --> 00:15:37,240 Speaker 1: that argument, saying, look, it's still illegal. So even if 245 00:15:37,240 --> 00:15:41,280 Speaker 1: nobody was hurt, they're still hurt by having this illegal 246 00:15:41,280 --> 00:15:45,000 Speaker 1: policy place upon people. And so we're gonna invalidate it 247 00:15:45,040 --> 00:15:49,040 Speaker 1: without waiting to see if a particular states counts was hard. 248 00:15:49,360 --> 00:15:52,080 Speaker 1: As a matter of this, and when is the Census 249 00:15:52,080 --> 00:15:55,640 Speaker 1: Bureau going to stop its counting? The President is trying 250 00:15:55,760 --> 00:15:59,840 Speaker 1: to say that there's a sastatory deadline of December thirty 251 00:16:00,000 --> 00:16:04,360 Speaker 1: earth and because of that, the census should stop counting 252 00:16:04,400 --> 00:16:08,360 Speaker 1: as of today, and a disrecord in California has actually 253 00:16:08,480 --> 00:16:12,080 Speaker 1: enjoined that stopping of the count and has scheduled the 254 00:16:12,080 --> 00:16:15,320 Speaker 1: stopping of the counts to take till October thirty. Because 255 00:16:15,360 --> 00:16:19,360 Speaker 1: there's no justification for why they would stop counting earlier 256 00:16:19,360 --> 00:16:22,040 Speaker 1: than they had originally said. And so the court had 257 00:16:22,160 --> 00:16:26,680 Speaker 1: enjoined that, and now the federal government is saying, well, 258 00:16:26,760 --> 00:16:30,120 Speaker 1: we're gonna keep coming till October fifth. And so there 259 00:16:30,200 --> 00:16:33,000 Speaker 1: was hearing me about whether that contempt of the court 260 00:16:33,160 --> 00:16:36,400 Speaker 1: ruling and whether that October fifth decision is going to 261 00:16:36,440 --> 00:16:39,640 Speaker 1: be vacated and whether that will be moved to October thirty. 262 00:16:39,680 --> 00:16:43,880 Speaker 1: I against authority to do that. Leon Trump is seeking 263 00:16:43,880 --> 00:16:48,200 Speaker 1: an argument session in late November or early December. That 264 00:16:48,320 --> 00:16:54,160 Speaker 1: sets of a possibility that conservative Supreme Court nominee Amy 265 00:16:54,200 --> 00:16:57,840 Speaker 1: Coney Barrett could be on that panel. Would that make 266 00:16:57,880 --> 00:17:01,160 Speaker 1: a difference to have one more conservative? Is last time 267 00:17:01,240 --> 00:17:04,240 Speaker 1: Chief Justice John Roberts was the swing vote, so it 268 00:17:04,320 --> 00:17:08,240 Speaker 1: was basically conservatives versus liberals. I mean, at this point, 269 00:17:09,000 --> 00:17:13,359 Speaker 1: it's hard to predict. It's it's possible that we would 270 00:17:13,359 --> 00:17:16,960 Speaker 1: have an unprecedented ruling we've never had before, which is 271 00:17:17,000 --> 00:17:20,440 Speaker 1: that people without science in America, even though the census 272 00:17:20,440 --> 00:17:23,720 Speaker 1: has count all people, that those people are not people 273 00:17:24,000 --> 00:17:27,200 Speaker 1: and that they don't count as people. Uh. And usually 274 00:17:27,320 --> 00:17:31,119 Speaker 1: you don't see those rulings because the Constitution uses the 275 00:17:31,119 --> 00:17:34,800 Speaker 1: word citizen. And you know, so there's a difference that 276 00:17:34,880 --> 00:17:37,680 Speaker 1: when you use the word person or where you use 277 00:17:37,760 --> 00:17:40,400 Speaker 1: the word citizen and makes that you would use persons 278 00:17:40,600 --> 00:17:43,440 Speaker 1: when you meant persons, and it would use citizen when 279 00:17:43,440 --> 00:17:47,879 Speaker 1: it meant citizens. And so that was the idea, and 280 00:17:47,920 --> 00:17:51,000 Speaker 1: that's how that's been how the Constitution has been interpreted. 281 00:17:51,320 --> 00:17:54,199 Speaker 1: So this would be sort of a ground breaking decisions 282 00:17:54,200 --> 00:17:57,800 Speaker 1: that would deviate from president to say that suddenly people 283 00:17:57,840 --> 00:18:01,560 Speaker 1: doesn't don't need doesn't mean people being people with some 284 00:18:01,680 --> 00:18:04,879 Speaker 1: sort of status of the United States, that's comfortised. If 285 00:18:04,920 --> 00:18:08,200 Speaker 1: this isn't actually even to say don't count a documented 286 00:18:08,240 --> 00:18:11,639 Speaker 1: people think, don't count people with temporary visas or anything 287 00:18:11,680 --> 00:18:16,000 Speaker 1: else like this either. So it seems as if President Trump, 288 00:18:16,200 --> 00:18:21,639 Speaker 1: you know, during his last election campaign in s he 289 00:18:21,760 --> 00:18:25,120 Speaker 1: talked about immigration all the time, as he did during 290 00:18:25,160 --> 00:18:29,359 Speaker 1: most of his presidency immigration the wall. But does it 291 00:18:29,440 --> 00:18:33,640 Speaker 1: seem as if the topic of immigration is fading into 292 00:18:33,680 --> 00:18:37,520 Speaker 1: the background a little, It wasn't even mentioned its debates. 293 00:18:38,200 --> 00:18:41,879 Speaker 1: I think it depends who the audience is. If the 294 00:18:41,920 --> 00:18:46,280 Speaker 1: audience is the people being affected by the immigration plans, 295 00:18:46,720 --> 00:18:52,040 Speaker 1: new immigration plans that are very robot and effect hundreds 296 00:18:52,080 --> 00:18:55,879 Speaker 1: of thousands of people a day, are issued almost on 297 00:18:55,920 --> 00:19:00,600 Speaker 1: a weekly basis, So from the administration context, wouldn't say 298 00:19:00,600 --> 00:19:03,200 Speaker 1: it faded into the background. I would still say it's 299 00:19:03,280 --> 00:19:07,920 Speaker 1: the front and center regulatory priority of this whiteout. It's 300 00:19:08,040 --> 00:19:10,879 Speaker 1: the most important thing. It's just a question of the 301 00:19:11,320 --> 00:19:14,960 Speaker 1: the news sector. This is the most interesting story of 302 00:19:15,000 --> 00:19:19,080 Speaker 1: the day. Given that in general COVID is still the 303 00:19:19,080 --> 00:19:22,520 Speaker 1: biggest story that there is, plus the social unrest, plus 304 00:19:22,560 --> 00:19:26,880 Speaker 1: the election, people seem to want to talk less about COVID. 305 00:19:27,280 --> 00:19:31,040 Speaker 1: I'd be sorry less about immigration because COVID has sort 306 00:19:31,080 --> 00:19:34,359 Speaker 1: of put immigration into the background, both in terms of 307 00:19:34,400 --> 00:19:38,320 Speaker 1: there isn't necessarily at this moment a very high need 308 00:19:38,680 --> 00:19:40,880 Speaker 1: for new people to come in the country. There isn't 309 00:19:40,960 --> 00:19:44,719 Speaker 1: travel that allowing this. The embassies aren't open for the 310 00:19:44,720 --> 00:19:47,600 Speaker 1: most part. You know, they are open, but it's it's mattering, 311 00:19:48,320 --> 00:19:53,360 Speaker 1: and so it's not really something that that as at 312 00:19:53,400 --> 00:19:56,200 Speaker 1: the forefront because of the COVID issues. Then it will 313 00:19:56,280 --> 00:19:59,359 Speaker 1: be that it was, and then it will be post COVID. 314 00:20:00,680 --> 00:20:04,920 Speaker 1: Point taking leon and to your point, there are new 315 00:20:05,000 --> 00:20:09,120 Speaker 1: fees that are supposed to come into effect on October two, 316 00:20:09,680 --> 00:20:13,760 Speaker 1: which would jack up the fees that immigrants pay when 317 00:20:13,800 --> 00:20:16,080 Speaker 1: they come to the United States and tell us a 318 00:20:16,119 --> 00:20:20,240 Speaker 1: federal judges blocked that right the last night, a federal 319 00:20:20,400 --> 00:20:23,720 Speaker 1: judge blocks the new fee rules that would have increased 320 00:20:23,720 --> 00:20:29,040 Speaker 1: BE pubstantially for certain different categories including naturalization and UH 321 00:20:29,080 --> 00:20:33,640 Speaker 1: and filing for temporary visas. And that be was invalidated 322 00:20:33,680 --> 00:20:37,400 Speaker 1: because they actually ruled that the current Secretary of Homeland Security, 323 00:20:37,480 --> 00:20:42,440 Speaker 1: Chad Wolf, was improperly appointed as head of Homeland Security, 324 00:20:42,720 --> 00:20:47,119 Speaker 1: so he did not have authority to promulgate that rules 325 00:20:47,880 --> 00:20:51,120 Speaker 1: on the feet. And so if that's true, that's can 326 00:20:51,200 --> 00:20:54,960 Speaker 1: actually affect a lot of different rule that does to 327 00:20:55,119 --> 00:20:57,919 Speaker 1: be rules. So this is gonna be very interesting as 328 00:20:57,960 --> 00:21:00,720 Speaker 1: that gets litigated to higher it all the way after 329 00:21:00,760 --> 00:21:05,000 Speaker 1: the Supreme Court. Will the Supreme Court find that Chad 330 00:21:05,040 --> 00:21:09,280 Speaker 1: Wolf was improperly appointed? And I, you know, I think 331 00:21:09,280 --> 00:21:11,240 Speaker 1: it will be a close case. I don't know that 332 00:21:11,240 --> 00:21:14,480 Speaker 1: that's a hard is an issue. It seems hyper part 333 00:21:14,480 --> 00:21:16,879 Speaker 1: has been in the sense that you're asking whether President 334 00:21:16,960 --> 00:21:20,560 Speaker 1: Trump's appoint the was appointed properly, But it's really just 335 00:21:20,680 --> 00:21:24,439 Speaker 1: a technical legal question. And look, if you decide it 336 00:21:24,520 --> 00:21:27,080 Speaker 1: one way, then that means another administration that you're not 337 00:21:27,200 --> 00:21:31,359 Speaker 1: ideologically aligned with can do the same thing and find 338 00:21:31,440 --> 00:21:33,280 Speaker 1: that they can do the same thing. But if you 339 00:21:33,400 --> 00:21:37,639 Speaker 1: decided in a way that you're validating it, well, that 340 00:21:37,720 --> 00:21:40,119 Speaker 1: means that other administrations can't do the same thing. But 341 00:21:40,200 --> 00:21:43,240 Speaker 1: it also means that a lot of policies that were 342 00:21:43,320 --> 00:21:46,359 Speaker 1: promulgated while Chad Wolf has been as ahead of the 343 00:21:46,400 --> 00:21:49,880 Speaker 1: Department of Homeland Security would suddenly be in danger. How 344 00:21:49,960 --> 00:21:53,119 Speaker 1: much are being hyped? Does it really make a difference 345 00:21:53,280 --> 00:21:57,320 Speaker 1: to It depends because it's between six hundred dollars and 346 00:21:57,359 --> 00:22:01,199 Speaker 1: a thousand dollars per applications, and so if you're in 347 00:22:01,240 --> 00:22:04,080 Speaker 1: a situation where it's a business paying for a worker, 348 00:22:04,480 --> 00:22:07,200 Speaker 1: it might not make a huge difference. But if you're 349 00:22:07,200 --> 00:22:09,920 Speaker 1: in a situation where you're a family of four who 350 00:22:09,960 --> 00:22:13,400 Speaker 1: came here through either a work program or a refugee 351 00:22:13,400 --> 00:22:17,760 Speaker 1: program or some other programs, and now you're being asked 352 00:22:17,760 --> 00:22:21,760 Speaker 1: to pay an additional four thousand dollars per citizenship that 353 00:22:21,880 --> 00:22:26,119 Speaker 1: you didn't have before, maybe that cost prohibitive and you 354 00:22:26,160 --> 00:22:29,000 Speaker 1: don't want to become a citizen at that point. Another 355 00:22:29,119 --> 00:22:32,040 Speaker 1: proposed rule that I haven't heard very much about is 356 00:22:32,080 --> 00:22:37,639 Speaker 1: the biometrics immigration rule, So six million would be immigrants 357 00:22:37,680 --> 00:22:42,560 Speaker 1: would face expanded collection of Irish scans, palm and voice prints, 358 00:22:42,880 --> 00:22:47,000 Speaker 1: facial recognition, and d n A. What's the stated purpose 359 00:22:47,080 --> 00:22:51,119 Speaker 1: of this? Well, I think what had happened was that 360 00:22:51,240 --> 00:22:56,399 Speaker 1: the biometric collection in the administration had been done in 361 00:22:56,600 --> 00:23:00,640 Speaker 1: kind of a ad hoc manner and there wasn't sort 362 00:23:00,640 --> 00:23:03,199 Speaker 1: of an overarching rule that explains, this is what we 363 00:23:03,280 --> 00:23:06,760 Speaker 1: wanted to collect and this is why. But from that component, 364 00:23:07,320 --> 00:23:10,720 Speaker 1: that's perfectly valid, and also there needed to be a 365 00:23:10,760 --> 00:23:15,280 Speaker 1: couple of clarifications about when you could collect fingerprints from 366 00:23:15,320 --> 00:23:19,320 Speaker 1: miners who are going through the system, and also what 367 00:23:19,520 --> 00:23:22,280 Speaker 1: do you do with the shocking amount of people you'd 368 00:23:22,320 --> 00:23:25,520 Speaker 1: be surprised who you can't take fingerprints from. There's like, 369 00:23:25,640 --> 00:23:28,639 Speaker 1: you know, seedier citizens a lot of times for whatever reason, 370 00:23:28,960 --> 00:23:32,640 Speaker 1: have problems you're getting fingerprints from them, or people who 371 00:23:32,640 --> 00:23:36,640 Speaker 1: work in construction and who've had damage to their fingers, 372 00:23:36,720 --> 00:23:41,159 Speaker 1: and so you know, now there's a from that standpoint, 373 00:23:41,320 --> 00:23:45,040 Speaker 1: you conferensise the ability to get back up biometrics such 374 00:23:45,040 --> 00:23:48,640 Speaker 1: as Irish scans or facial scans and that kind of thing. 375 00:23:48,720 --> 00:23:52,520 Speaker 1: So from that component it's good, but it also lays 376 00:23:52,560 --> 00:23:56,200 Speaker 1: out very broad guidelines of being able to collect these things. 377 00:23:56,280 --> 00:24:01,440 Speaker 1: Conceivably in every single case, in for any single purpose 378 00:24:01,520 --> 00:24:04,679 Speaker 1: that is desired by the Department of Moland Security. And 379 00:24:04,760 --> 00:24:06,879 Speaker 1: that's where folks are taking But wait a second, is 380 00:24:06,920 --> 00:24:11,600 Speaker 1: this too broad because of how much how many biometrics 381 00:24:11,600 --> 00:24:14,520 Speaker 1: that allows people to collect for pretty much any reason 382 00:24:14,600 --> 00:24:19,160 Speaker 1: that they feel is a justified reason for homeland security purposes. 383 00:24:19,640 --> 00:24:21,919 Speaker 1: Almost every time I talked to you, Leon, I have 384 00:24:22,040 --> 00:24:25,120 Speaker 1: to ask a question about the wall, and I support 385 00:24:25,200 --> 00:24:27,040 Speaker 1: I think that that is going to play. You know, 386 00:24:27,119 --> 00:24:29,560 Speaker 1: President Trump is going to emphasize his building of the 387 00:24:29,600 --> 00:24:33,360 Speaker 1: wall in his campaign. So where does the wall stand 388 00:24:33,480 --> 00:24:36,600 Speaker 1: and what are the legal challenges to it? Well, the 389 00:24:36,640 --> 00:24:40,920 Speaker 1: wall continues to be built quite a pace at this point. Uh. 390 00:24:40,960 --> 00:24:44,720 Speaker 1: And there's you know, about four miles of wall that's 391 00:24:44,880 --> 00:24:49,320 Speaker 1: official wall, like kind of President Trump said he was 392 00:24:49,359 --> 00:24:55,120 Speaker 1: going to build, but only five miles of it are 393 00:24:55,240 --> 00:25:00,320 Speaker 1: in locations that didn't have some barrier previously. So it 394 00:25:00,440 --> 00:25:04,280 Speaker 1: just depends whether you want to call that wall or 395 00:25:04,400 --> 00:25:08,399 Speaker 1: not wall. And so that's in the eye of the beholder. 396 00:25:08,840 --> 00:25:13,119 Speaker 1: But there's not a lot of new locations that didn't 397 00:25:13,119 --> 00:25:16,399 Speaker 1: have a barrier that have this new wall that I 398 00:25:16,440 --> 00:25:19,000 Speaker 1: think the President would call the kind of wall that 399 00:25:19,040 --> 00:25:22,680 Speaker 1: he promised, so is it is it still being challenged 400 00:25:22,720 --> 00:25:25,919 Speaker 1: at the Supreme Court the use of military money to 401 00:25:26,160 --> 00:25:29,280 Speaker 1: fund the wall. Well, the Supreme Court has allowed all 402 00:25:29,320 --> 00:25:32,199 Speaker 1: of these challenges to be saved in the sense that 403 00:25:32,280 --> 00:25:35,239 Speaker 1: the wall can continue to be built as they go up, 404 00:25:35,640 --> 00:25:39,760 Speaker 1: but no final determination has been reached about whether the 405 00:25:39,840 --> 00:25:43,159 Speaker 1: Supreme Court will stop construction of the wall at some 406 00:25:43,240 --> 00:25:47,800 Speaker 1: point saying that it's illegal. So yes, the circuits have 407 00:25:47,800 --> 00:25:52,600 Speaker 1: have continued to bring that litigation a pace to say yes, 408 00:25:52,640 --> 00:25:55,720 Speaker 1: this is still illegal. But one would suspect that with 409 00:25:55,800 --> 00:25:59,000 Speaker 1: the composition of the court now, which is by three, 410 00:25:59,280 --> 00:26:01,720 Speaker 1: and then if it had of Big six three, that 411 00:26:01,800 --> 00:26:05,320 Speaker 1: there's not gonna be a barrier to the President building 412 00:26:05,359 --> 00:26:07,719 Speaker 1: the wall, at least with the current litigation that has 413 00:26:07,760 --> 00:26:11,359 Speaker 1: been filed. There may be at some point pretty soon 414 00:26:11,480 --> 00:26:14,120 Speaker 1: as they try to put wall in places where there 415 00:26:14,240 --> 00:26:18,040 Speaker 1: wasn't wall. Some adverse possession evan in the main type 416 00:26:18,040 --> 00:26:21,640 Speaker 1: of litigation, But that's different than the litigation we've seen 417 00:26:21,640 --> 00:26:24,200 Speaker 1: in the pass, which is that the funding has been 418 00:26:24,240 --> 00:26:27,879 Speaker 1: improperly diverted from the wall. Well, that's the one that's 419 00:26:27,880 --> 00:26:31,359 Speaker 1: been said and hasn't been allowed to stop the construction 420 00:26:31,400 --> 00:26:34,840 Speaker 1: of the Wall. Thanks for being on the Bloomberg Law Show. Leon, 421 00:26:35,240 --> 00:26:38,800 Speaker 1: that's Leon Fresco, a partner at Hollanden Knight. And that's 422 00:26:38,840 --> 00:26:41,399 Speaker 1: it for the sedition to the Bloomberg Law Show. Remember 423 00:26:41,400 --> 00:26:43,280 Speaker 1: you can always get the latest legal news on our 424 00:26:43,280 --> 00:26:47,920 Speaker 1: Bloomberg Law Podcast. You can find them on Apple podcast, SoundCloud, 425 00:26:48,080 --> 00:26:52,840 Speaker 1: or a www dot bloomberg dot com slash podcast Slash Law. 426 00:26:53,240 --> 00:26:56,359 Speaker 1: I'm June Grasso. Thanks so much for listening and remember 427 00:26:56,400 --> 00:26:58,920 Speaker 1: to change The Bloomberg Law Show every weeknight. Attend and 428 00:26:59,000 --> 00:27:14,280 Speaker 1: Eastern I hear Humper Radio in mhd h