Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: Federal court rulings this weekend on immigration enforcement handed the
Speaker 2: Trump administration a win and a loss, despite the fact
Speaker 2: that the federal judges in both cases excoriated the administration's
Speaker 2: enforcement actions. A Texas federal judge ordered the release of
Speaker 2: a five year old and his father who were detained
Speaker 2: in Minnesota and sent to a detention center, but a
Speaker 2: Minneapolis federal judge refused to halt the immigration enforcement surge
Speaker 2: in Minnesota. My guest is immigration law expert lyon Fresco,
Speaker 2: a partner at Holda Knight Leon. There seems to be
Speaker 2: a change in tone from the Trump administration. President Trump
Speaker 2: instructed to the Homeland Security Secretary not to intervene in
Speaker 2: protests or unrested democratic led cities unless local officials formally
Speaker 2: request assistance. DHS Secretary Christi nom said today that every
Speaker 2: immigration officer on the ground will be issued body worn
Speaker 2: cameras immediately. And of course last week we had borders
Speaker 2: our Tom Homan saying that mistakes had been made.
Speaker 3: I think there are two different philosophies, and I think
Speaker 3: we're going to have for the remainder of this administration
Speaker 3: a struggle back and forth between these two different philosophies,
Speaker 3: and one is rooted in practical law enforcement and legal doctrine,
Speaker 3: which is what Tom Holman wants, which is to say,
Speaker 3: we have whatever number, whether it's eleven million, twelve million,
Speaker 3: twenty million, whatever number of people we have here without status,
Speaker 3: if we're really going to focus our resources on a
Speaker 3: specific subset of people, focus on people who are criminals
Speaker 3: and people with removal orders, and don't focus on the
Speaker 3: larger population, because this make the job of ICE much
Speaker 3: more difficult in the sense that it creates these inflammatory
Speaker 3: conditions that we're seeing across the country. Number one, but
Speaker 3: number two, the agents are trained for detention and removal.
Speaker 3: They're not trained for these local police tactics, regardless of
Speaker 3: whether it's to border patrol or whether it's ICE. They're
Speaker 3: not trained for that. They're trained for apprehension of a
Speaker 3: particular person who's a foreign national, either in their home
Speaker 3: or the workplace, or the court, bringing them to detention
Speaker 3: and removing them from the country. And the border patrol
Speaker 3: is trained to guard the border. They're not trained to
Speaker 3: interact with us. It is entered and try to make
Speaker 3: determinations as to who's here legally and who isn't in
Speaker 3: a conflagration in a city. So that's one group. The
Speaker 3: second group the philosophies are partly focused on this concept
Speaker 3: of quotas and arrest numbers at all costs, but really
Speaker 3: what they're trying to accomplish is to create deterrents such
Speaker 3: that the conditions in the United States are so anxiety
Speaker 3: producing that people make the determination that it's better for
Speaker 3: them to self deport and to take the offer that
Speaker 3: the US government is giving them to self deport rather
Speaker 3: than to remain in the United States and hope they
Speaker 3: can figure out a way to outlast this current administration.
Speaker 3: And those are the two theories, and those theories go
Speaker 3: back and forth depending on who is in charge at
Speaker 3: a particular moment and whose theory is being accepted at
Speaker 3: a particular moment. And the point is one is going
Speaker 3: to yield probably more numbers than the other, but at
Speaker 3: different times. Meaning if there's a lot of court injunctions
Speaker 3: and a lot of city conflagrations, maybe you might have
Speaker 3: yielded more numbers just having this blanket immigration deportation frenzy,
Speaker 3: But at the end you won't really, because you'll get
Speaker 3: a lot of stops and starts there. Whereas it's like
Speaker 3: the tortoise and the hair, if you do things the
Speaker 3: right way, in a slow and steady fashion. Yes it
Speaker 3: isn't this mass deportation of millions of people, but you
Speaker 3: get less injunctions, you get less orders overturning your work,
Speaker 3: and you actually get deportations. And so this is what
Speaker 3: Tom Holman has known. But to say that this is
Speaker 3: going to be the state of affairs for any extended
Speaker 3: period of time is foolish because this has changed many
Speaker 3: times and will continue to change many times during this administration.
Speaker 2: A recent case that's gotten a lot of attention is
Speaker 2: the five year old and his father who were detained
Speaker 2: in Minnesota and sent to a detention center in Texas.
Speaker 2: In ordering the release of the five year old and
Speaker 2: his father, Texas Judge Fred Bury accused the government of cruelty,
Speaker 2: saying the case had its genesis quote in the ill
Speaker 2: conceived and incompetently implemented government pursuit of daily deportation quotas
Speaker 2: apparently even if it requires traumatizing children.
Speaker 3: So here's what happened. So you have a father whose
Speaker 3: name is Adrian Conejo Arias and his son Liam. And
Speaker 3: basically what is conceded here is that there's a detention
Speaker 3: of the father in a way where the father is
Speaker 3: separated from the child, and the detention of that father
Speaker 3: relied on an administrative warrant, not a judicial warrant, and
Speaker 3: was part of a broader enforcement regime driven by the
Speaker 3: deportation numbers that the administration felt that it needed to have,
Speaker 3: and not because there was an actual reason to detain
Speaker 3: this person. Why do we say that, because this person
Speaker 3: was in the middle of the asylum process and did
Speaker 3: not have any criminal issues. So the point is, usually
Speaker 3: when that happens, they let you play out the asylum
Speaker 3: process and if you win, good, you win, and you're
Speaker 3: on your way to lawful permanent residency. But if you lose,
Speaker 3: that's when they detain you and move you into the
Speaker 3: deportation process. They very very rarely. Something usually has to happen,
Speaker 3: like an arrest or some sort of very bad thing
Speaker 3: to just pick someone up who's in the middle of
Speaker 3: the asylum process and just put them in detention, especially
Speaker 3: when there's children involved. But that's what happens here. They
Speaker 3: separate the child from the father for a moment, they
Speaker 3: try to give the child to the mother. The mother
Speaker 3: is terrified of Ice and is basically not allowing Ice
Speaker 3: to give the mother the child because she's worried if
Speaker 3: Ice opens the door, she's going to be apprehended. So
Speaker 3: the child and the father are taken to the Dilly
Speaker 3: Family Immigration Processing Center in Texas. And usually the way
Speaker 3: that works is when families come in the United States,
Speaker 3: that's where families are detained and then they're led out
Speaker 3: because there's immigration decisions that don't let children be in
Speaker 3: immigration detention for longer than two weeks, So usually it
Speaker 3: works that way. But in this way, they were trying
Speaker 3: to put the child and the father in detention, hoping
Speaker 3: they could get them on their way out. The problem is,
Speaker 3: of course, there's a pending asylum case, so you can't
Speaker 3: do anything. All you can do is just detain them
Speaker 3: for the purpose of having a new arrest number and
Speaker 3: a new detention bed occupation number, but not to actually
Speaker 3: accomplish a removal. So what happened? So these individuals file
Speaker 3: a habeas petition saying why have you detained them in
Speaker 3: the middle of the asylum process. What's the point of this?
Speaker 3: And even though that's technically something that needs to be
Speaker 3: done as part of an immigration bond hearing, the immigration
Speaker 3: courts are currently not considering those cases because there's an opinion,
Speaker 3: that's an administrative opinion that granted courts have refused to
Speaker 3: accept hundreds of times now because many people have filed habeas's,
Speaker 3: hundreds and hundreds of them all around the country, and
Speaker 3: almost all of those habeases are successful, saying that this
Speaker 3: blanket detention that's not being even considered for bond hearing
Speaker 3: is unconstitutional and violates the statute. And so that's basically
Speaker 3: what this court says. It says, hey, there's not a
Speaker 3: reason not to let these people out of the bond.
Speaker 3: And the arrest itself lacked constitutionally sufficient process because again
Speaker 3: it relied on administrative warrants instead of judicial warrants and
Speaker 3: was part of this broader enforcement regime driven by daily
Speaker 3: deportation quotas, not individualized probable cause determination. And then that's
Speaker 3: when the judge started talking about eighteen oh seven cases
Speaker 3: and the Magna Carta and Blackstone and biblical references and
Speaker 3: the Declaration of Independence, and basically, in a very very
Speaker 3: scathing fashion, criticizing this administration, and so that's that's why
Speaker 3: the release was ordered. There, This judge was very up
Speaker 3: at the government and the release was ordered. Now, ultimately
Speaker 3: there's going to be a grappling here, not in this
Speaker 3: particular case, i'd imagine, but ultimately where the Supreme Court's
Speaker 3: going to have to figure out can these habeas petitions
Speaker 3: be listened to? Did the government do the wrong thing
Speaker 3: with this blanket detention no bond order that it's issued,
Speaker 3: And that's all going to have to shake itself out.
Speaker 2: Deputy Attorney General Todd Blanche has disputed the claim that
Speaker 2: the father had properly followed the legal asylum process.
Speaker 3: There's a very meaningful dispute about whether they had properly
Speaker 3: applied for asylum.
Speaker 2: And said the Justice Department is going to appeal the
Speaker 2: judge's ruling.
Speaker 3: Well, I think at the end of the day, if
Speaker 3: they want to appeal this case, they're going to be
Speaker 3: appealing it within the context of the legal issues being
Speaker 3: what they are. And again we've talked about this several times.
Speaker 3: Its concept of sometimes the statutes are quite ri and
Speaker 3: here they might prevail in the fact that the statutes
Speaker 3: themselves may foreclose habeas in this context and say that
Speaker 3: the bond situation has to happen within the removal preceding process.
Speaker 3: So it is all possible, but it's just not a
Speaker 3: very sympathetic fact pattern because you have this five year
Speaker 3: old child in immigration detention, and I understand that there's
Speaker 3: definitely factual disputes about what happened during the detention and
Speaker 3: also what happened with regard to him perfecting his asylum claim.
Speaker 3: But nevertheless, I just don't know that this is where
Speaker 3: they want to plant their flag as this being the
Speaker 3: case that ends up in the Supreme Court and having
Speaker 3: them decide whether a habeas is proper, because I think
Speaker 3: most people would say maybe this was the exact case
Speaker 3: you'd want a habeas in. They probably want the habeas
Speaker 3: in a much less sympathetic context to the foreign national.
Speaker 3: But we'll have to wait and see maybe they will
Speaker 3: pick this, or.
Speaker 2: Maybe they'll reconsider after some thought. Stay with me. Leon.
Speaker 2: Coming up next on the Bloomberg Lawn Show, a Minnesota
Speaker 2: judge criticizes the Trump administration's immigration enforcement but refuses to
Speaker 2: stop it. I'm June Grosso, and you're listening to Bloomberg.
Speaker 2: A Minneapolis federal judge has ruled that she won't stop
Speaker 2: the immigration enforcement surge in Minnesota and the Twin Cities
Speaker 2: as a lawsuit over it proceeds. Judge Catherine Menendez on
Speaker 2: Saturday denied a preliminary injunction sought in the lawsuit file
Speaker 2: this month by state Attorney General Keith Ellison and the
Speaker 2: mayors of Minneapolis and Saint Paul. I've been talking to
Speaker 2: immigration attorney Leon Fresco of Holland and Knight. So there
Speaker 2: was another scathing opinion by a judge in Minneapolis, Judge Menendez,
Speaker 2: and she acknowledged that Minnesota and the cities have made
Speaker 2: a strong showing that Operation Metro ser has had and
Speaker 2: will continue to have profound and even heartbreaking consequences, and
Speaker 2: also found evidence that ICE and Border Patrol agents have
Speaker 2: engaged in racial profiling, excessive use of force, and other
Speaker 2: harmful actions. But still she wouldn't stop the federal immigration operation.
Speaker 3: Correct. What happened was you had the State of Minnesota,
Speaker 3: the City of Minneapolis, and the City of Saint Paul's
Speaker 3: suing to halt what was called Operation Metro Surge, which
Speaker 3: is the large scale immigration enforcement operation that was going
Speaker 3: on in Minnesota, and they were arguing that the Tenth
Speaker 3: Amendment was violated due to anti commandeering, meaning that their
Speaker 3: forces were being commandeered by the federal government without their consent,
Speaker 3: also violating principles of equal state sovereignty, and also functioning
Speaker 3: as political retaliation because they chose to be a sanctuary jurisdiction,
Speaker 3: which in this case just meant that they didn't want
Speaker 3: to cooperate with ICE to do arrest. They said, you know,
Speaker 3: the ICE is on its own. We don't have to cooperate,
Speaker 3: and so we will not. And so what the judge
Speaker 3: said is, as you said, there were a lot of
Speaker 3: things that bothered the judge with regard to racial profiling
Speaker 3: and the way immigration enforcement was being done, and she
Speaker 3: didn't decide whether that operation was lawful overall, and she
Speaker 3: certainly did not endorse the wisdom, fairness, or morality of
Speaker 3: the operation. And she did, of course, like we said,
Speaker 3: cited the racial profiling, excessive force, and unlawful arrest. But
Speaker 3: what she decided was whether an injunction would be tenable
Speaker 3: under this tenth Amendment and equal sovereignty theory. And ultimately,
Speaker 3: what the court said is that the plaintiffs failed to
Speaker 3: show a likelihood of success under existing Supreme Court president
Speaker 3: because the law is very narrow and undeveloped, and basically,
Speaker 3: the Court didn't have a workable legal standard for determining
Speaker 3: how many Fed agencies too many when aggressive enforcement crosses
Speaker 3: the line from lawful pressure into unconstitutional coercion. And so
Speaker 3: even though she said it wasn't legally frivolous, she didn't
Speaker 3: see how she could have an extraordinary remedy where a
Speaker 3: judge would halt a federal law enforcement operation. And I
Speaker 3: think here there are two key points. I think it's
Speaker 3: probably not lost on the judge that tom Holman did
Speaker 3: say what he said. Perhaps the judge was concerned about
Speaker 3: after tom Holman said what he said, getting involved and
Speaker 3: not basically letting this process play out. Perhaps if the
Speaker 3: process continued to play out in a way that was
Speaker 3: more escalatory, you might have seen a different decision. But
Speaker 3: I think that the tom Homan discussions about dialing it down,
Speaker 3: I think were very helpful Number one, and I think
Speaker 3: number two, at the end of the day, the judge
Speaker 3: was also concerned about how there would be this basically
Speaker 3: day to day governance of the federal government in one
Speaker 3: of these contexts, and so I think the judge basically said,
Speaker 3: let's see what Tom Holman is going to be doing
Speaker 3: in Minneapolis, and then we can come back and revisit this,
Speaker 3: but for now, this is not the time perhaps to
Speaker 3: issue this injunction.
Speaker 2: So now, in the category of another day, another immigration lawsuit,
Speaker 2: the Trump administration is being sued over that ban on
Speaker 2: immigration from seventy five countries, where the State Department suspended
Speaker 2: the approval of visas from seventy five countries. More than
Speaker 2: eighty five percent of the countries are non European with
Speaker 2: significant non white populations. Tell us about this new lawsuit.
Speaker 3: There's organizational plainefs and also there's individual plainifs, including US
Speaker 3: citizens traina petition for their family members, and also highly
Speaker 3: skilled employment based immigrant visa applications meaning people coming here
Speaker 3: to do very important things that aren't banned because they're
Speaker 3: from the seventy five countries. And there's a few documents.
Speaker 3: There's a blanket visa band cable that was issued on
Speaker 3: January fourteenth of twenty twenty six, and there was a
Speaker 3: councular processing cable. And what they're saying is these cables
Speaker 3: that basically say that the reason there's a seventy five
Speaker 3: country ban is because they're worried that the people from
Speaker 3: these seventy five countries are going to come in and
Speaker 3: use welfare benefits. That this violates the entire statutory scheme
Speaker 3: of the Immigration and Nationality Act for a couple of reasons.
Speaker 3: Number One, there's literally this is the weirdest thing. And
Speaker 3: I hate using this word literally, but here it is
Speaker 3: the appropriate use of the word. There is literally a
Speaker 3: provision in the Immigration and Nationality Act that says that
Speaker 3: you can't discriminate when you're giving out green cards based
Speaker 3: on the country that someone's from. It actually says it
Speaker 3: right there in writing. And that's interesting because that's usually
Speaker 3: within the context of what the administration is not supposed
Speaker 3: to do. Is it's not supposed to say, give the
Speaker 3: green cards to this country as opposed to another. It's
Speaker 3: supposed to be first come, first served, within the confined
Speaker 3: of after you get more than seven percent from any
Speaker 3: one country your cat. That's fine, that's a different part
Speaker 3: of the statue. But other than that, it's supposed to
Speaker 3: be first come, first serve. So they're saying, look, there's
Speaker 3: a clear statue that says you can't do this. The
Speaker 3: problem is there's another statue which says that the president
Speaker 3: can ban whoever the president wants if the president thinks
Speaker 3: that's in the national interests of the country. And that's
Speaker 3: already been given some difference in the Trump versus Hawaii
Speaker 3: case from the first administration. So again you have these
Speaker 3: dueling statutes. Which statute will win. Will it be the
Speaker 3: travel ban statute or will it be the statute that
Speaker 3: says you can't discriminate based on who you give green
Speaker 3: cards to. Now what was interesting is that same argument
Speaker 3: was made in the travel ban case but was rejected.
Speaker 3: But interestingly, the reason it was rejected was because the
Speaker 3: travel ban case back then was not a ban on
Speaker 3: green cards. It was a ban on all kinds of
Speaker 3: other visas, visitor visa, student visas, other kinds of temporary visas.
Speaker 3: But it actually wasn't a ban on green cards. And
Speaker 3: so this is going to be very interesting is does
Speaker 3: this ban that's an actual ban on green cards violate
Speaker 3: the statutory language which says you can't discriminate in the
Speaker 3: allocation of green cards based on what country someone is from.
Speaker 3: So that's number one, and then number two, the fact
Speaker 3: that the underlying fear is that the people coming will
Speaker 3: be public charges, so to speak, meaning that they will
Speaker 3: rely on the federal government and the taxpayers for money.
Speaker 3: The point there is, look Congress created a statutory scheme
Speaker 3: for this. They said that when that's true, there has
Speaker 3: to be a sponsor who is a US citizen or
Speaker 3: a lawful permanent resident, and that person has to make
Speaker 3: a certain amount of money. And in that situation, if
Speaker 3: welfare benefits are obtained, then it's this sponsor who has
Speaker 3: to pay them back. They've agreed to do this, But
Speaker 3: that's the scheme, And the point is you can't come
Speaker 3: up with another scheme now because you don't like the
Speaker 3: existing scheme. So that's the point of the argument.
Speaker 2: And how often do sponsors have to pay back welfare
Speaker 2: benefits in practice?
Speaker 3: I can't even think of a case. I don't know
Speaker 3: of a case. I really don't know if a case
Speaker 3: exists where a sponsor has ever been asked to pay
Speaker 3: back the money that someone has obtained from public benefit.
Speaker 3: So it's a very interesting question in terms of why
Speaker 3: that's not happened. But that's the scheme. So we're going
Speaker 3: to see who wins within this context. Will they be
Speaker 3: correct that between the statutory language that says you can't
Speaker 3: discriminate on a particular country and the statutory language that
Speaker 3: says this is how you address this public charge concern
Speaker 3: that that framework means you can't have the kind of
Speaker 3: ban that the president issued, or will the President be
Speaker 3: able to again succeed relying on his blanket banning authority
Speaker 3: that allows him to basically ban any foreign national from
Speaker 3: the United States for any reason, as long as he
Speaker 3: thinks it's in the interests of the United States. So
Speaker 3: that's the question, and this is going to be yet
Speaker 3: another instance where these dueling statutes are going to have
Speaker 3: to be analyzed.
Speaker 2: So a senior staff attorney at the National Immigration Law Center,
Speaker 2: which brought this along with other legal organizations, said that
Speaker 2: the regions and countries where immigration is banned under the
Speaker 2: new policy boor an eerie resemblance to quota as enforced
Speaker 2: by nineteen twenty statutes that were abolished during the Civil
Speaker 2: Rights era, and that this was a freechext to limit
Speaker 2: legal immigration and to reinstate those old racial quotas.
Speaker 3: Correct the quotas that existed basically at that time only
Speaker 3: allowed people from Europe to come to the United States
Speaker 3: and not people from Asia or Africa, or South America
Speaker 3: or the Caribbean or anywhere else. And that's the language
Speaker 3: that I told you about, the language which said you
Speaker 3: can't discriminate on the basis of national origin anymore. That
Speaker 3: has to be a first come, first serve allocation of
Speaker 3: green card. That's the language that ended the quotas. So
Speaker 3: the quotas existed until the nineteen sixties, and then in
Speaker 3: the nineteen sixties that language was put in which eliminated
Speaker 3: the quotas. And so the question is what happens now.
Speaker 3: Can the President, through his travel ban authority, which doesn't
Speaker 3: just allow him to ban travel, but allows him to
Speaker 3: ban any any entry of any kind by any non
Speaker 3: US citizen, can he use this at such an expansive
Speaker 3: way to basic redo the quotas of the pre nineteen
Speaker 3: sixties era, or will the courts put some limitation on
Speaker 3: the president? And that is going to be a very
Speaker 3: interesting question.
Speaker 2: Another interesting ruling was the Ninth Circuit saying that the
Speaker 2: DHS Secretary didn't have the authority to vacate TPS status
Speaker 2: for Venezuela and Haiti tell us why, Because TPS status
Speaker 2: is something that's supposed to be temporary, so why can't
Speaker 2: she Yeah, this has been.
Speaker 3: A complicated case because this case has gone back and
Speaker 3: forth several times where there's been preliminary injunctions where the
Speaker 3: court lower courts have said, hey, we know there's temporary
Speaker 3: protected status. What temporary protected status is, by the way,
Speaker 3: is a statutory provision that says that the president if
Speaker 3: they think there's some sort of natural disaster or some
Speaker 3: sort of pandemic or something else in a particular country,
Speaker 3: that in that situation, the president can say for eighteen months, hey,
Speaker 3: people who are stuck here in the US are not
Speaker 3: here illegally, they're temporarily protected. And then what's happened is
Speaker 3: every eighteen months that gets renewed, renewed, renewed. And so
Speaker 3: then this question was, Okay, what happened when those eighteen
Speaker 3: months expired for Venezuela in eighty Is President Trump in
Speaker 3: some way bound to do something other than let them expire?
Speaker 3: And so there was a lawsuit saying that the Secretary
Speaker 3: of Onland Security Christinome, exceeded her statutory authority in vacating
Speaker 3: and terminating the temporary protected status. And there's been injunction
Speaker 3: saying they had to come back, and then the Supreme
Speaker 3: Court has said it doesn't have to come back. And
Speaker 3: so one of the things that's complicated is Secretary No
Speaker 3: didn't just let it expire, and she done that. She
Speaker 3: might have actually had a better case, but she tried
Speaker 3: to vacate the existing temporary protected status, and so by
Speaker 3: doing that, the Court said that she exceeded her statutory
Speaker 3: authority to vacate this, and then by doing that is
Speaker 3: sort of basically using that as a mechanism to extend
Speaker 3: temporary protected status as much as possible. I don't think
Speaker 3: here the Supreme Court is ultimately going to have a
Speaker 3: lot of sympathy, especially when the time actually expires and
Speaker 3: there really is no temporary protected status left because the
Speaker 3: time has expired. And basically I don't think the Supreme
Speaker 3: Court will say that there's any judge that can require
Speaker 3: a president to renew temporary protected status. So I think
Speaker 3: ultimately this is going to end up being much ado
Speaker 3: about nothing. But the Ninth Circuit is trying its best
Speaker 3: to keep the Venezuelan and Haitian population protected from deportation.
Speaker 3: But I don't think in the long run this is
Speaker 3: going to be successful.
Speaker 2: Texas has its own H one divisa policy.
Speaker 3: So here's what happens. So let's go through this because
Speaker 3: this is very interesting. You sure, H one B visa
Speaker 3: is a visa for highly skilled foreign nationals to come
Speaker 3: to the United States to perform highly skilled work and
Speaker 3: has a two prong tests. The test is, is there
Speaker 3: a job that needs to be filled that that specific
Speaker 3: job requires a very specific degree, And then does the
Speaker 3: person who's coming to fill that job have that degree
Speaker 3: not some may not some random degree, but that specific
Speaker 3: degree to do that job. If you can, you can
Speaker 3: get an H one B visa. The H one B visa, however,
Speaker 3: has a cap at sixty five thousand visas per year,
Speaker 3: plus another twenty thousand if you happen to have a
Speaker 3: master's degree or above from a US university, so eighty
Speaker 3: five thousand. Let's say. Now here's what's fascinating. There are
Speaker 3: ways to get above that cap. And the main way
Speaker 3: to get above that cap is if the person applying
Speaker 3: for the H one B visa, the company, sorry, or whatever,
Speaker 3: the petitioner is either a US university or it's a
Speaker 3: governmental institution. Those are the main ways that those institutions
Speaker 3: can exceed the cap, and so there are a lot
Speaker 3: of universities who exceed the cap and bring in a
Speaker 3: lot of people on H one B visas. What are
Speaker 3: they bringing them in for. They're bringing them into be professors, researchers,
Speaker 3: and the biggest one, and this is where this is
Speaker 3: getting really complicated, is that you may have noticed that
Speaker 3: a lot of state universities now provide a lot of
Speaker 3: healthcare all around the country in their hospitals and their
Speaker 3: hospital systems, et cetera. And so a lot of doctors
Speaker 3: and other medical professionals come on these H one B
Speaker 3: visas and they're doing a lot of important work where
Speaker 3: if you didn't have them, then these hospitals would be
Speaker 3: chronically understaffed. So what happens You now have states like
Speaker 3: Florida and Texas saying, guess what, we are going to
Speaker 3: ban our universities from hiring anyone on an H one
Speaker 3: B visa application, whether it's a professor, a doctor, a researcher,
Speaker 3: or anything else. And so this is what's interesting about this.
Speaker 3: There are certainly some H one B visas that I've
Speaker 3: seen in some of these state universities that are frivolous.
Speaker 3: You know, they're hiring an athletic trainer for the lacrosse
Speaker 3: team or something like that, and it's like, well, you
Speaker 3: really can't find an athletic trainer in the United States
Speaker 3: who can do this that kind of thing. So there's
Speaker 3: some of that where you can say, Okay, look, that's
Speaker 3: a little bit frivolous. But when we're talking about doctors
Speaker 3: and researchers and others we're not it doesn't lend itself
Speaker 3: to the political talking point that oh, these people would
Speaker 3: be hired by you know, Americans would be hired to
Speaker 3: fill every one of these positions if it wasn't for this.
Speaker 3: And so yes, the states have it in their prerogative
Speaker 3: to ban their universities from hiring anyone on H one B.
Speaker 3: But at the end of the day, I do think
Speaker 3: there's gonna be some negative drawback from especially the healthcare
Speaker 3: fields and these universities where they say, look, we weren't
Speaker 3: there was no one we could get other than these people.
Speaker 3: What are we supposed to do now? And I think
Speaker 3: that's going to be very fascinating to see how it plays.
Speaker 2: Out the complexities of the immigration law. Thanks so much, Leon.
Speaker 2: That's Leon Fresco, a partner at Hollanda Knight. Coming up
Speaker 2: next on the Bloomberg Law Show, We'll tell you why
Speaker 2: the Pulitzer Prize Committee is demanding a lot of confidential
Speaker 2: reports from President Trump, including internal communications between the Trump
Speaker 2: White House and the Russians. I'm June Grosso and you're
Speaker 2: listening to Bloomberg. The Pulletzer Prize Committee is demanding confidential
Speaker 2: records from President Trump, including an unredacted copy of Robert
Speaker 2: Muller's report and internal communications between the Trump White House
Speaker 2: and the Uessians. The committee is asking for the documents
Speaker 2: to defend against Trump's defamation lawsuit against them. Joining me
Speaker 2: is Bloomberg Last senior correspondent Alex Ebert. Alex tell us
Speaker 2: about Trump's lawsuit against the Pulitzer Prize Board.
Speaker 1: Yeah, Trump's Pulitzer Prize Board defamation lawsuit is kind of
Speaker 1: a bank shot. So we all know about the reporting
Speaker 1: by Washington Post and New York Times into trump connections
Speaker 1: with Russians during his twenty sixteen presidential campaign. That reporting
Speaker 1: combined won Pulitzer Prize in twenty eighteen, and Trump was
Speaker 1: mad about that and constantly complaining about it the Politzer
Speaker 1: Prize Board in twenty eighteen issued a statement standing by
Speaker 1: it and saying that the reporting was fine and their
Speaker 1: investigations into the awards that they're not going to change
Speaker 1: their position. Trump said that itself was defamation, and so
Speaker 1: he brought a lawsuit in Florida State Court alleging that
Speaker 1: this defamation is harming his reputation. This was in twenty
Speaker 1: twenty two, when Trump was kind of in the wilderness
Speaker 1: and trying to come back from the January sixth debacle
Speaker 1: following the attack on the Capitol, and so he was
Speaker 1: in Florida licking his wounds and coming back, and this
Speaker 1: lawsuits persisted until today.
Speaker 2: So what stall this case? Even before he became president?
Speaker 1: There were lots of stalls in this case, and most
Speaker 1: of them were around questions of do you even have
Speaker 1: personal jurisdiction here? Is this case even bringable? And efforts
Speaker 1: by the Politzer Board to stay the case. Once Trump
Speaker 1: was a candidate for president and then became president, the
Speaker 1: Florida state courts they handled all those things, said nope,
Speaker 1: there's a personal jurisdiction here. You know, Trump's a resident,
Speaker 1: he can sue the Politzer Board here. And they took
Speaker 1: on the issues of stay as well. And said, no,
Speaker 1: the president can decide whether or not he wants to
Speaker 1: spend his time, you know, bringing personal lawsuits in state court,
Speaker 1: and we're not going to interfere with that decision.
Speaker 2: Tell us about the documents that the Pulitzer Board is
Speaker 2: looking for.
Speaker 1: Right, So, the first element of a defamation claim is
Speaker 1: this statement has to be false here. That means that
Speaker 1: the reporting into Trump's ties with Russians during the twenty
Speaker 1: sixteen campaign has to be false. And so you're looking
Speaker 1: at sort of a who's who of communications from the
Speaker 1: Trump administration and Russian officials and all of the different
Speaker 1: reports that folks like Robert Muller and future councils have
Speaker 1: done looking into those ties. We're talking about confidential state
Speaker 1: secrets here, you know that involve our spy organizations looking
Speaker 1: into things that Russians may or may not have done
Speaker 1: to interfere with our elections. Those things are not completely
Speaker 1: unredacted and publicly available. And so the Politzer Board here
Speaker 1: is saying, hey, if you want to say that it
Speaker 1: is false that your campaign had connections with Russians, then
Speaker 1: you've got to cough up these records.
Speaker 2: And has the Trump administration refused to given the records.
Speaker 1: We're at the beginning here, so we'll see what they do.
Speaker 1: But attorneys that we're talking with say that this could
Speaker 1: have serious implications for state secrets litigation going down the road.
Speaker 1: If the President is just going to say, hey, I'm
Speaker 1: bringing a personal lawsuit, therefore I'm going to disclose all
Speaker 1: this stuff, that could cause some serious problems.
Speaker 3: Right.
Speaker 1: So, across the country, we have the Department of Justice
Speaker 1: intervening in cases as a third party to protect state
Speaker 1: secrets on behalf of the government. These are normally things
Speaker 1: where like Raytheon or Northward Drummond are arguing in state
Speaker 1: court about like who owns a piece of scientific material right,
Speaker 1: or some IP and the Justice Department will intervene in
Speaker 1: and say, hey, we can't disclose all this because some
Speaker 1: of this might be state secrets protected things that we
Speaker 1: don't want foreigners to be able to see or other
Speaker 1: people in the United States. Those state secrets then are
Speaker 1: seriously protected, some of the most protected information by our government,
Speaker 1: and so the Department of Justice routinely intervenes to prevent
Speaker 1: this disclosure. Here we have the head of the Executive,
Speaker 1: Donald Trump, potentially needing to disclose some of these things
Speaker 1: just so he can keep his defamation suit going in Florida,
Speaker 1: or he could throw another big wrench in here and
Speaker 1: say you're not entitled to this stuff, and then the
Speaker 1: court is left to say, do I view this in
Speaker 1: camera and let this go forward? And we have various
Speaker 1: precedent on this that say that's not really workable.
Speaker 2: And it's a state judge. So does the state judge
Speaker 2: even have the security clearance necessary to look at these documents?
Speaker 1: Yeah, different national security litigators that I've spoken with have
Speaker 1: looked into this and said, this might be the second
Speaker 1: time only that a state secrets privilege will be advocated
Speaker 1: in state trial court. Right because in federal court, we
Speaker 1: generally have you know, federal judges with security clearance and
Speaker 1: the infrastructure to be able to view these things in camera.
Speaker 1: That's not the same thing in state court. It's not
Speaker 1: set up for that. And so there's a question of
Speaker 1: whether or not the judge and his staff would even
Speaker 1: have the sort of clearance needed to view these things
Speaker 1: in camera, not in front of the parties, in order
Speaker 1: to make sure that the secrets of the government are protected.
Speaker 1: And here we're talking about things that are routinely protected, right,
Speaker 1: sources and methods of spy agencies, you know, looking into
Speaker 1: how foreign powers are trying to influence our government and
Speaker 1: the things we do here. So these are things that
Speaker 1: even the folks I've spoken with that are extremely skeptical
Speaker 1: of the way the government might classify things as you know,
Speaker 1: protected or confidential. They say, this might you know, strongly
Speaker 1: qualify under any standard for that sort of protection.
Speaker 2: What would happen if they can't get the documents? Would
Speaker 2: the case be dismissed or put on hold?
Speaker 1: In a normal world, June, this would be a catch
Speaker 1: twenty two. Right, we find ourselves with a plaintiff that
Speaker 1: is refusing to produce documents that are necessary for the
Speaker 1: defense to you know, bring their defense to the judge
Speaker 1: and to a jury, and the judge would say, listen,
Speaker 1: no evidence here is being disclosed. Therefore we aren't to
Speaker 1: dismiss the case. The experts I've spoken to say, in
Speaker 1: different circuits around the country, judges have come to that
Speaker 1: same conclusion. Right, if you're not going to come forward
Speaker 1: with these documents, you can't maintain this case. We even
Speaker 1: have a decision from the DC Circuit from Scalia that
Speaker 1: basically said it would be false it would be, you know,
Speaker 1: a travesty to basically trick the jury. You know, we
Speaker 1: know that there are these documents out there and they
Speaker 1: would give the defense some sort of you know, a
Speaker 1: strong position, but we're going to ignore that and just
Speaker 1: let the plaintiff move forward. But this is twenty twenty six,
Speaker 1: and this is a unique situation because Trump is in
Speaker 1: control of those records, and so the experts we spoke with,
Speaker 1: you know, are wondering how the court is going to
Speaker 1: deal with this. You know, can they force the president
Speaker 1: to disclose this And if the president, who has the
Speaker 1: sole authority to declassify this information, doesn't do it, does
Speaker 1: the court have the right to dismiss the case. It's
Speaker 1: an open question.
Speaker 2: Trump has brought several lawsuits against media companies during this
Speaker 2: second administration. Do we know how many.
Speaker 1: I'm not aware of the tally. I've kind of run
Speaker 1: out of fingers and toes on that. But one expert
Speaker 1: I've spoken with has said that just in the cases
Speaker 1: where Trump has alleged damages of some quantifiable amount, he's
Speaker 1: already demanded sixty five billion dollars and a lot of
Speaker 1: this is over cases where the issue is elections. That
Speaker 1: he's won, and so there's a question of, you know,
Speaker 1: how far a president can take this strategy, and whether
Speaker 1: or not the normal defenses that you'd have in cases
Speaker 1: like defamation work in this system.
Speaker 2: Yeah, and the problem is a lot of the media
Speaker 2: companies have settled with him. Let's turn to another case, though,
Speaker 2: start by reminding us about that landmark more than thirty
Speaker 2: eight million dollar verdict against Chiquida.
Speaker 1: Sure, this landmark verdict is both large in its amount
Speaker 1: but also was sort of a shock across a particular
Speaker 1: legal community, and that's the human rights community. So it
Speaker 1: was the first time that a US corporation was held
Speaker 1: liable in US court for human rights abuses. And what
Speaker 1: we have here, basically is the theory of neglige where
Speaker 1: Chakda was found liable for funding paramilitary groups that assaulted
Speaker 1: and killed people in the region where Chakda operated. The
Speaker 1: organization was taking money from Jaquita, and Chaquita was saying,
Speaker 1: this is basically a protection racket. We can't be responsible.
Speaker 1: We were, you know, basically, but in rock and hard place,
Speaker 1: we either have to pay this money or we can't operate.
Speaker 1: And the plaintiffs were saying, no, you knew what was
Speaker 1: happening here when in the nineties, you know, mostly we
Speaker 1: had these paramilitary groups that were killing hundreds, potentially thousands
Speaker 1: of people in the region where you get all of
Speaker 1: this fruit for Chikeita. The verdicts came down and nine
Speaker 1: different individuals were found to have damages. Right, these are
Speaker 1: survivors of the victims of the people killed by the
Speaker 1: paramilitary group. And this is just a drop in this
Speaker 1: massive ocean of potential claims. Right, this is a bell
Speaker 1: the trial, and they are about four five hundred plaintiffs
Speaker 1: suing the company, So we're looking at potentially billions of
Speaker 1: dollars of damages. But also this first of its kind
Speaker 1: verdict where these plaintiffs could potentially point to other cases
Speaker 1: and say, hey, this is a roadmap for you to
Speaker 1: sue other US corporations if they're doing dirty things abroad.
Speaker 2: Now, there's an appeal challenging the verdict based on the
Speaker 2: jury receiving faulty instructions.
Speaker 3: Right.
Speaker 1: The issue right now is a really complex one involving
Speaker 1: how you make that work. So the court decided to
Speaker 1: take Colombian law and base the trial off of that.
Speaker 1: But because Colombian law wouldn't fill all of the gaps
Speaker 1: in the way that we can prosecute these negligence cases.
Speaker 1: The court had to gap fill, right, This is the
Speaker 1: way that we do this in the United States. When
Speaker 1: we do this selection of law thing, we have to
Speaker 1: fill that gaps when we need to. And so when
Speaker 1: it came to liability here, the big question before the
Speaker 1: trial court was how do we fill the gap in
Speaker 1: Columbia law when it comes to the liability of Chakdah.
Speaker 1: And the trial court they say that they, unfortunately for
Speaker 1: the plaintiffs, decided to use federal common law when they
Speaker 1: did that instead of Florida common law. And so the
Speaker 1: question for the Court of Appeals was is that a
Speaker 1: big enough of a problem that it undermines the jury
Speaker 1: verdict here?
Speaker 2: Tell us about some of the concerns of the appellate judges.
Speaker 1: Yeah, some of their concerns where you know, if you
Speaker 1: have the wrong standard in these jury instructions, then whatever
Speaker 1: outcome the jurors come to that might not be the law.
Speaker 1: And so the plaintiffs were arguing, Hey, the federal standard
Speaker 1: here and the state standard they're not that different. And
Speaker 1: if you look at the facts, you know, we're talking
Speaker 1: about extreme facts that would apply to either standard. But jakdah,
Speaker 1: and it seems like they got the ear of the
Speaker 1: judges is saying, listen, there's a pretty big difference when
Speaker 1: it comes to negligence standards. If you have a difference
Speaker 1: between causing something as the standard or being a factor
Speaker 1: in something, then that's a big gap. That's a golf
Speaker 1: that the jury can jump through. And so they're arguing
Speaker 1: that state law would say you have to really be
Speaker 1: more of a but for cause of something to be
Speaker 1: liable here, and the federal standard is more like, oh,
Speaker 1: you have to be a factor in the deaths and
Speaker 1: that the injury of these plaintiffs family members.
Speaker 2: Thanks Alex. That's Bloomberg Law's Alex Ebert, and that's it
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
Speaker 2: can always get the latest legal news on our Bloomberg
Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
Speaker 2: and remember to tune into The Bloomberg Law Show every
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 2: and you're listening to Bloomberg