1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,480 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud 5 00:00:18,320 --> 00:00:22,800 Speaker 1: and on Bloomberg dot com slash podcasts. President Trump tweeted 6 00:00:22,800 --> 00:00:25,840 Speaker 1: about a big United States Supreme Court win, and it 7 00:00:25,920 --> 00:00:29,200 Speaker 1: was indeed a big win for Trump. The court bolstered 8 00:00:29,200 --> 00:00:32,360 Speaker 1: Trump on one of his signature issues, clearing his administration 9 00:00:32,440 --> 00:00:35,120 Speaker 1: to enforce a new rule that will bar nearly all 10 00:00:35,240 --> 00:00:38,480 Speaker 1: Central American migrants from applying for asylum at the US 11 00:00:38,600 --> 00:00:41,760 Speaker 1: Mexico border. Joining me is Harold Krant, dean of the 12 00:00:41,800 --> 00:00:44,240 Speaker 1: Chicago Kent College of Law and author of the book 13 00:00:44,280 --> 00:00:48,720 Speaker 1: Presidential Powers. Harold, this was an emergency application by the 14 00:00:48,760 --> 00:00:53,240 Speaker 1: Trump administration. What did the court decide? The court that 15 00:00:53,440 --> 00:00:58,840 Speaker 1: lifted the injunction that preclude implementation of the new rule, 16 00:00:58,920 --> 00:01:02,320 Speaker 1: which required, as you mentioned, anybody from South America to 17 00:01:02,440 --> 00:01:06,920 Speaker 1: first apply for asylum in Mexico before they could apply 18 00:01:07,120 --> 00:01:11,280 Speaker 1: in the United States. That obviously prevents individuals all those 19 00:01:11,319 --> 00:01:14,920 Speaker 1: all individuals from Honduras or Guatemala, though not from Mexico, 20 00:01:15,040 --> 00:01:17,640 Speaker 1: to common sick a stylum in the United States. So 21 00:01:18,040 --> 00:01:21,240 Speaker 1: this is a new policy of the Trump administration that 22 00:01:21,360 --> 00:01:26,360 Speaker 1: reverses settled asylum practices that lower courts had put on hold. 23 00:01:26,800 --> 00:01:30,000 Speaker 1: So this isn't a case of the justices keeping the 24 00:01:30,080 --> 00:01:34,119 Speaker 1: status quo intact while the case winds its way through 25 00:01:34,120 --> 00:01:39,640 Speaker 1: the courts. Have courts before the Roberts Court done something similar. 26 00:01:40,640 --> 00:01:42,760 Speaker 1: The Supreme Court has said that a stay of an 27 00:01:42,760 --> 00:01:45,840 Speaker 1: a junction is an extraordinary remedy and the question is 28 00:01:45,840 --> 00:01:49,440 Speaker 1: whether the situation merited what the Slicitor General said in 29 00:01:49,480 --> 00:01:52,880 Speaker 1: this case, and it does have at least some credence. 30 00:01:52,920 --> 00:01:57,120 Speaker 1: In my view is that if the Supreme Court is 31 00:01:57,160 --> 00:01:59,880 Speaker 1: going to take the case anyway, then that may have 32 00:02:00,200 --> 00:02:03,600 Speaker 1: started a flaw of people to try to get across 33 00:02:03,600 --> 00:02:07,520 Speaker 1: the border um because of the injunction until the Supreme 34 00:02:07,520 --> 00:02:09,840 Speaker 1: Court could reach the merits of the case. It's not 35 00:02:09,919 --> 00:02:13,520 Speaker 1: a frivolous argument, and that may have persuaded the Court 36 00:02:13,880 --> 00:02:16,959 Speaker 1: that the harm was so to the United States was 37 00:02:17,080 --> 00:02:21,600 Speaker 1: so great that it justified the extraordinary remedy of staying 38 00:02:21,600 --> 00:02:25,160 Speaker 1: the injunction while the before while the case goes through 39 00:02:25,160 --> 00:02:27,280 Speaker 1: the courts. So the Supreme courts will get to hear 40 00:02:27,280 --> 00:02:31,480 Speaker 1: this on the merits again, probably this term. Does this 41 00:02:32,400 --> 00:02:36,959 Speaker 1: early ruling indicate to you that they will also approve 42 00:02:37,639 --> 00:02:41,960 Speaker 1: of the order when it comes to them. There are 43 00:02:41,960 --> 00:02:46,400 Speaker 1: two principal factors that a court will consider an extraordinary 44 00:02:46,440 --> 00:02:49,000 Speaker 1: situation like this. One is what is it's a peak 45 00:02:49,000 --> 00:02:52,200 Speaker 1: at the merits? How likely is the government to win 46 00:02:52,440 --> 00:02:57,240 Speaker 1: or the pro um uh migrants groups will win. The 47 00:02:57,440 --> 00:03:00,320 Speaker 1: second one is what's the level of the harm? So 48 00:03:00,520 --> 00:03:03,640 Speaker 1: it is possible that just because the level of the 49 00:03:03,720 --> 00:03:08,160 Speaker 1: harm is considered so great that the court granted the 50 00:03:08,280 --> 00:03:11,560 Speaker 1: stay because of that, not because of the merits. But 51 00:03:11,880 --> 00:03:14,960 Speaker 1: I think it also is a pretty strong signal that 52 00:03:15,040 --> 00:03:19,840 Speaker 1: the court will likely uphold the administration's policy. And the 53 00:03:19,880 --> 00:03:22,400 Speaker 1: biggest legal issue in my view is I think you 54 00:03:22,400 --> 00:03:25,480 Speaker 1: put it pretty well. This is a direct change of policy. 55 00:03:26,040 --> 00:03:29,120 Speaker 1: And even though there was some discretion that the government 56 00:03:29,160 --> 00:03:32,920 Speaker 1: has about enforcing these immigration rules, shouldn't Congress be the 57 00:03:32,919 --> 00:03:36,560 Speaker 1: one to change that dramatically our policy as opposed to 58 00:03:37,160 --> 00:03:41,560 Speaker 1: uh the administration by a one sentence order. As you mentioned, 59 00:03:41,600 --> 00:03:45,160 Speaker 1: it was an unsigned order. There were two justices dissenting 60 00:03:45,360 --> 00:03:49,640 Speaker 1: Justices Sonya Sato Mayor and Ruth Bader Ginsburg. What was 61 00:03:49,680 --> 00:03:53,000 Speaker 1: their argument against allowing the policy to go into effect. 62 00:03:53,920 --> 00:03:56,840 Speaker 1: Their arguments were that this is not such an extraordinary situation. 63 00:03:56,880 --> 00:03:58,960 Speaker 1: They didn't talk that much about the harm, but they 64 00:03:58,960 --> 00:04:02,240 Speaker 1: did talk about the mayor, and they were very skeptical 65 00:04:02,680 --> 00:04:06,880 Speaker 1: of the administration's arguments on the marriage for Appold and 66 00:04:07,160 --> 00:04:10,160 Speaker 1: the claim. They said there was no rush. There should 67 00:04:10,160 --> 00:04:13,360 Speaker 1: have been open discussion, and they thought that this was 68 00:04:13,400 --> 00:04:17,080 Speaker 1: so dramatically different than the statute previous statute that have 69 00:04:17,160 --> 00:04:19,720 Speaker 1: been in place that it was likely that it would 70 00:04:19,760 --> 00:04:22,880 Speaker 1: be considered to be a violation of the statute. They 71 00:04:22,920 --> 00:04:26,080 Speaker 1: also agreed to some extent with the lower courts finding 72 00:04:26,520 --> 00:04:30,800 Speaker 1: that the government hadn't adequately justified a need for the 73 00:04:30,839 --> 00:04:33,080 Speaker 1: new rule, and that was a yet a separate ground 74 00:04:33,120 --> 00:04:36,760 Speaker 1: that the disrecord had used in granting the injunction. So 75 00:04:36,880 --> 00:04:40,159 Speaker 1: the it's again they really focused mostly on the merits. 76 00:04:40,200 --> 00:04:42,920 Speaker 1: They also did it said that didn't seem like there 77 00:04:43,000 --> 00:04:46,880 Speaker 1: was a huge need to say the injunction. So they 78 00:04:46,880 --> 00:04:50,880 Speaker 1: wrote separately to express their displeasure with seven other members 79 00:04:50,880 --> 00:04:54,719 Speaker 1: of the court. So mayor also wrote, quote, Historically the 80 00:04:54,760 --> 00:04:58,440 Speaker 1: government has made this kind of request rarely. Now it 81 00:04:58,520 --> 00:05:03,840 Speaker 1: does so reflexively. As we've discussed before, the Trump administration 82 00:05:04,000 --> 00:05:08,520 Speaker 1: has repeatedly skipped the normal processes of cases going up 83 00:05:08,560 --> 00:05:12,480 Speaker 1: to the court, and the Court is rewarding them here 84 00:05:12,680 --> 00:05:16,120 Speaker 1: for for doing so. At what point does it become 85 00:05:16,600 --> 00:05:20,279 Speaker 1: crying wolf too often? Yeah, I mean, that's a great question, 86 00:05:20,480 --> 00:05:23,280 Speaker 1: and it's there's no easy line drawing here. But there 87 00:05:23,360 --> 00:05:28,120 Speaker 1: is another side to it. Lower courts have been revealing 88 00:05:28,200 --> 00:05:32,320 Speaker 1: or manifesting their displeasure with the Trump administration by issuing 89 00:05:32,360 --> 00:05:35,480 Speaker 1: these nationwide injunctions. It may be appropriate in this case, 90 00:05:35,520 --> 00:05:38,880 Speaker 1: but in other cases perhaps not. And so courts are 91 00:05:39,000 --> 00:05:42,640 Speaker 1: trying to limit the ability of the Trump administration to 92 00:05:42,640 --> 00:05:46,320 Speaker 1: to govern by issuing these nationwide injunctions, and that then 93 00:05:46,560 --> 00:05:49,880 Speaker 1: really forces the administration to go to the Supreme Court 94 00:05:50,200 --> 00:05:55,160 Speaker 1: as the only uh place left where they could defend 95 00:05:55,360 --> 00:05:58,240 Speaker 1: your administration's policies. So the fact that they're issuing more 96 00:05:58,279 --> 00:06:02,920 Speaker 1: of these emergency um stay of the injunctions is also 97 00:06:03,040 --> 00:06:05,880 Speaker 1: in part of reflection of the fact that lower courts 98 00:06:05,880 --> 00:06:10,640 Speaker 1: have been very aggressive in trying to limit application of 99 00:06:10,720 --> 00:06:14,440 Speaker 1: Trump Administration's policies. So Harold, in July, the Court allowed 100 00:06:14,480 --> 00:06:18,799 Speaker 1: the administration to begin using Pentagon money to build the wall. 101 00:06:19,279 --> 00:06:22,480 Speaker 1: But in December the Court refused to let Trump start 102 00:06:22,600 --> 00:06:27,480 Speaker 1: automatically rejecting all asylum claims by people crossing the border illegally. 103 00:06:27,839 --> 00:06:30,160 Speaker 1: And now we have this in about a minute. Can 104 00:06:30,200 --> 00:06:35,320 Speaker 1: you square those three rulings? Well, it's pretty it's impossible 105 00:06:35,320 --> 00:06:37,520 Speaker 1: without going into the marriage. And I think that's it's 106 00:06:37,560 --> 00:06:42,159 Speaker 1: a good reminder that in trying to each application is separate. 107 00:06:42,200 --> 00:06:46,359 Speaker 1: Each application is based both upon the court Supreme Courts 108 00:06:46,440 --> 00:06:49,200 Speaker 1: view of the merits of the situation as well as 109 00:06:49,240 --> 00:06:51,720 Speaker 1: the view of the harm. And while I certainly disagreate 110 00:06:51,800 --> 00:06:55,080 Speaker 1: with the Supreme Court's decision with respect to building the wall, 111 00:06:55,600 --> 00:06:57,520 Speaker 1: I do think that each can be squared a little 112 00:06:57,520 --> 00:07:00,320 Speaker 1: bit because of the Supreme courts different assess and of 113 00:07:00,480 --> 00:07:04,000 Speaker 1: the strength of the of the marriage as well as 114 00:07:04,040 --> 00:07:08,080 Speaker 1: the magnitude of the harm that might fulfall the administration. 115 00:07:08,240 --> 00:07:10,760 Speaker 1: Thank you so much, Harold. That's Harold Crant, dean of 116 00:07:10,760 --> 00:07:13,400 Speaker 1: the Chicago Kent College of Law. His book is called 117 00:07:13,480 --> 00:07:18,360 Speaker 1: Presidential Powers. Thanks for listening to the Bloomberg Law Podcast. 118 00:07:18,720 --> 00:07:22,760 Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud, 119 00:07:22,840 --> 00:07:26,760 Speaker 1: and on Bloomberg dot com. Slash podcast I'm June Brosso. 120 00:07:27,240 --> 00:07:32,200 Speaker 1: This is Bloomberg. Yeah.