Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: President Trump has been complaining about the legal protections given
Speaker 2: to alleged Venezuelan gang members to prevent their quick deportations.
Speaker 3: We're getting them out, and a judge can't say no,
Speaker 3: you have to have a trial. That's the trial is
Speaker 3: going to take two years, and we're going to have
Speaker 3: a very We're going to have a very dangerous country
Speaker 3: if we're not allowed to do what we're entitled to do.
Speaker 1: Well.
Speaker 2: On Friday, the administration lost its bid at the Supreme
Speaker 2: Court to quickly deport about one hundred and seventy six
Speaker 2: alleged Venezuelan gang members to a salvador In prison using
Speaker 2: the seventeen ninety eight Alien Enemies Act. But it got
Speaker 2: to win at the Supreme Court today, when the Justice
Speaker 2: has allowed the administration to end legal protections for three
Speaker 2: hundred and fifty thousand Venezuelans, stripping them of the right
Speaker 2: to temporarily live and work in the US and opening
Speaker 2: many of them to immediate deportations. The Justices lifted a
Speaker 2: federal court order that had said the Venezuelans could keep
Speaker 2: their temporary protected status while a legal fight continues. Joining
Speaker 2: me is immigration law expert Leon Fresco, a partnered Holland
Speaker 2: and Knight. Leon first explained, and I know you've explained
Speaker 2: this many times before, but first explain what temporary protected
Speaker 2: status is.
Speaker 1: Well. Temporary protected status in general is permitted by a
Speaker 1: statute that is enacted by Congress. And what that statue
Speaker 1: does is it allows the president, whoever the president is
Speaker 1: at any given time, to create a class of people that,
Speaker 1: because of either a natural disaster or some political turmoil
Speaker 1: or some environmental problem something that it would be considered
Speaker 1: very dangerous to them to deport them back to their country.
Speaker 1: And so actually, at the end of the Trump presidency
Speaker 1: in twenty twenty, Trump had declared something similar called deferred
Speaker 1: enforced departure for Venezuelans. But what Biden did was he
Speaker 1: changed that to temporary protective status, and he said that
Speaker 1: about three hundred and fifty thousand Venezuelans could stay in
Speaker 1: the country using this temporary protected status under the theory
Speaker 1: that deporting them back to Venezuela would be deporting them
Speaker 1: back to a place where the government was very oppressive,
Speaker 1: and most of these people would probably qualify for asylum anyway,
Speaker 1: and so rather than clog the courts with those asylum cases,
Speaker 1: it's just simpler to have temporary protective status allow them
Speaker 1: to stay legally and work legally while they're in the
Speaker 1: United States. Well, what the Trump administration did when it
Speaker 1: came back in twenty twenty five now is it said
Speaker 1: we're going to cancel those three hundred and fifty thousand
Speaker 1: Venezuelans temporary protective status. But what's interesting about that is
Speaker 1: it didn't just say it's not going to renew it.
Speaker 1: It actually said, if you have it right this minute,
Speaker 1: we're canceling it, which people were shocked because they had
Speaker 1: at least thought they had a reliance interest until the
Speaker 1: time that the temporary protected status would expire, which for
Speaker 1: some people would have been in June and some people
Speaker 1: would have been in October.
Speaker 2: I mean, it sounds like temporary protected status is something
Speaker 2: within the administration's bailliwick.
Speaker 1: Correct, So the administration the president has the authority to
Speaker 1: extend TPS in eighteen months increments under Congress, or not
Speaker 1: to extend it. But what's interesting is in the prior
Speaker 1: Trump administration, there had been temporary protected status given to
Speaker 1: people from Central America, and when the Trump administration tried
Speaker 1: to end it, the lower courts actually gave injunctions, and
Speaker 1: those individuals succeeded for four years during the Trump presidency
Speaker 1: to not have their temporary protective status rescinded because they
Speaker 1: had gotten rulings that there were equal protection violations in
Speaker 1: the way that the temporary protective status had been rescinded,
Speaker 1: because the idea was that Trump was doing this for
Speaker 1: some sort of animus or discriminatory reason and not for
Speaker 1: real judgments on whether those countries had actually changed or not.
Speaker 1: And so interestingly enough, because that strategy worked in the
Speaker 1: first Trump administration to sort of run out the clock,
Speaker 1: then this new attempt in this second administration to do
Speaker 1: the same thing to stop temporary protective status. The individuals
Speaker 1: sued again, saying the same arguments, and they succeeded again
Speaker 1: in getting an injunction in the lower court. But this
Speaker 1: time the Supreme Court today stayed the injunction. So what
Speaker 1: they said was the injunction does not apply to just
Speaker 1: the one issue, so the issue of renewal, meaning that
Speaker 1: now there's not going to be an injunction like there
Speaker 1: was in the first Trumpet administration. That keeps people on
Speaker 1: temporary protected status after it expires. Now, they do say
Speaker 1: that this order doesn't apply to the issues of whether
Speaker 1: you could be ejected from the status earlier, whether your
Speaker 1: work authorization could be taken away early. But what the
Speaker 1: ruling today says is when your status expires, the Supreme
Speaker 1: Court has no order in place giving you your status back,
Speaker 1: and so those are going to have to be litigated
Speaker 1: in the lower court. But in the meantime, there is
Speaker 1: no injunction in place preventing people's temporary protected status from
Speaker 1: expiring on the day it was supposed to expire in
Speaker 1: the first place.
Speaker 2: So, just to be clear, the order today only applies
Speaker 2: to renewal of temporary prient checked IT status. In other words,
Speaker 2: it allows the administration not to renew TPS status.
Speaker 1: So the order from today only pertains to once the
Speaker 1: normal day it was going to expire comes, then it
Speaker 1: is allowed to expire. There is now no injunction as
Speaker 1: of today requiring it to be renewed, and so that's
Speaker 1: what's been changed is there was an injunction saying you
Speaker 1: just can't end this period until the court gets back
Speaker 1: to you, and now that's not true. It can be ended,
Speaker 1: but it has to be ended as of the date
Speaker 1: that it was supposed to end originally, rather than an
Speaker 1: earlier expedited date given by President Trump.
Speaker 2: So how big a victory is this for the Trump administration?
Speaker 1: Obviously, what they're trying to do is flood the zone
Speaker 1: and get as many people to be subject to removal
Speaker 1: early as possible. So from that standpoint, if your concern is,
Speaker 1: I want as many people subject to removal as soon
Speaker 1: as possible, And it is a very big victory for
Speaker 1: the Trump administration to say that they don't have to
Speaker 1: renew the temporary protected status because that is a significant
Speaker 1: change from the first Trump administration. In the first Trump administration,
Speaker 1: the clock ran out from their attempt to end temporary
Speaker 1: protected status for people, and so people were able to
Speaker 1: maintain their temporary protected status during the four entire years
Speaker 1: of the Trump administration, plus obviously the Biden administration. And
Speaker 1: so now the Trump administration in year one gets a
Speaker 1: favorable ruling from the Supreme Court that says that that's
Speaker 1: not going to happen this time around.
Speaker 2: What happens now because the Venezuelans that have temporary protected
Speaker 2: status when it ends, can they be deported or will
Speaker 2: they apply for asylum.
Speaker 1: So what will happen is anybody who is subject to
Speaker 1: deportation is most likely going to apply for asylum. They
Speaker 1: don't have to apply for asylum, but most likely they
Speaker 1: are going to apply for asylum. And from Venezuela, you
Speaker 1: already have a prime of facia eligibility for asylum in
Speaker 1: the sense that you have an oppressive government that commits
Speaker 1: acts of oppression against political enemies. So all of those
Speaker 1: cases are going to have to be heard on an
Speaker 1: individual basis, unless the Trump administration can succeed in this
Speaker 1: other case that it's working on saying that Venezuelans or
Speaker 1: some class of them, can be deported en mass because
Speaker 1: they're alien enemies of the United States. But other than that,
Speaker 1: every Venezuelan is probably going to have to go through
Speaker 1: asylum proceedings, which, again, even if it's just these three
Speaker 1: hundred and fifty thousand, will be two three years of
Speaker 1: court time just for this one group of people.
Speaker 2: How has temporary projected status worked in the past, Do
Speaker 2: people actually go back to their home countries?
Speaker 1: Well, this is problematic because this is where the Trump
Speaker 1: administration has its highest level of currency. Is there's actually
Speaker 1: almost never been an instance other than very small, very
Speaker 1: targeted instances of less than one hundred people, where a
Speaker 1: group of people has been given temporary protective status and
Speaker 1: it's actually been revoked. We have people in America who've
Speaker 1: had temporary protective status since nineteen ninety six and their
Speaker 1: status just keeps getting renewed every eighteen months. And so
Speaker 1: what the Trump administration has said is at some point
Speaker 1: this has to end because it makes a mockery of
Speaker 1: the statute temporary protected status. But what happens is once
Speaker 1: you make someone legal and you give them a work permit,
Speaker 1: and you give them legal status and they have kids
Speaker 1: in the United States, every moment that they're here is
Speaker 1: an extended moment of currency building. And you start getting
Speaker 1: people like these people who've been here since nineteen ninety
Speaker 1: six who are now going to to lose their temporary
Speaker 1: protective status, who will say, hey, I've been here for
Speaker 1: over thirty years and now you're trying to deport me
Speaker 1: just now. And this becomes a big problem for both sides.
Speaker 1: And so that's why it's understandable that people who've been
Speaker 1: here less time, but for some of the temporary protective
Speaker 1: status people who've been here thirty years. Yes, they probably
Speaker 1: shouldn't have had temporary protective status for thirty years, but
Speaker 1: the truth is they've had it now, and so the
Speaker 1: question is what are you going to do with those people.
Speaker 2: They're also moving to revoke temporary protected status for Haitians, Cubans,
Speaker 2: and Nicaragua.
Speaker 1: Everybody, yes, other than South Sudan, which they gave a
Speaker 1: sort of neutral six month extension. Everyone else. They're moving
Speaker 1: so far to say that the conditions have improved in
Speaker 1: all of these countries, no matter how bad others might
Speaker 1: argue theoretically that they are. The Trump administration has said, no,
Speaker 1: the conditions are good enough to warrant deportations to these places,
Speaker 1: and so yes, the temporary protective statuses are being revoked
Speaker 1: from everybody else who has them, and so the idea
Speaker 1: is those individuals will be in undocumented status. And then
Speaker 1: the question becomes, well, what happens to the next? What
Speaker 1: happens to the next is either they leave on their
Speaker 1: own or somebody comes and places them in deportation proceedings.
Speaker 1: And if that happens, then what happens. Does these people
Speaker 1: apply for asylum or do they do something else?
Speaker 2: Coming up next on the Bloomberg Law Show, the Trump
Speaker 2: Administration's Friday defeat at the Supreme Court, and are they
Speaker 2: really talking about a reality show for undocumented immigrants you're
Speaker 2: listening to Bloomberg. The Trump administration had a victory today
Speaker 2: from the Supreme Court, but a defeat on Friday by
Speaker 2: a vote of seven to two. The court blocked the
Speaker 2: administration from deporting about one hundred and seventy six Venezuelans
Speaker 2: to a Salvadorian prison. Fault in the government for giving
Speaker 2: the men in adequate notice and failing to explain how
Speaker 2: they could contest deportation. I've been talking to immigration law
Speaker 2: expert le On Fresco, a partner at Hollanden Knight. Leon
Speaker 2: tell us why the Supreme Court said the Trump administration
Speaker 2: couldn't deport this group of alleged Venezuelan gang members.
Speaker 1: Well, let's start with the legal issue at play. There's
Speaker 1: a law, the Alien Enemies Act from the seventeen hundreds,
Speaker 1: which says that if you are put into this group
Speaker 1: of people who are alien enemies by the president, you
Speaker 1: can be removed without any due process. That's what the
Speaker 1: statute says. And the question is what does that really mean,
Speaker 1: because it gives a step of determining whether you are
Speaker 1: subject to the statue. You know, So the Trump administration says,
Speaker 1: we want to be able to deport these Venezuelan gang
Speaker 1: members from Trend, de Aragua. We want to be able
Speaker 1: to do that without having to have individual trials for
Speaker 1: every one of them. But that skips the step of saying, well,
Speaker 1: what if I'm not one of these people, either because
Speaker 1: I'm Venezuelan but I'm not in the gang, or I'm
Speaker 1: not even Venezuelan in the first place and you just
Speaker 1: got the wrong person, or I'm a US citizen, Where
Speaker 1: do I get to actually make this claim? And so
Speaker 1: first the Supreme Court said, well, you will make this
Speaker 1: claim in a habeas case. That was the first Supreme
Speaker 1: Court decision that came out a month ago that said
Speaker 1: you have to file a habeas corpus and the government
Speaker 1: has to give you notice and an opportunity to do that.
Speaker 1: And then there's a second question, which the courts have
Speaker 1: gone in two different directions on, which is can you
Speaker 1: even use the Alien Enemies Act for this type of situation?
Speaker 1: Because does this Venezuelan gang count as an invading force
Speaker 1: such that you can actually use the Alien Enemies Act
Speaker 1: to deport people, or is this just immigration, it's not
Speaker 1: an invading force coming from Venezuela with the approval of
Speaker 1: the Venezuelan government to invade the United States. Because that's
Speaker 1: the threshold that you have to meet. And so the
Speaker 1: Supreme Court said, look, you got to give people notice
Speaker 1: to make these arguments. The government came back into lower
Speaker 1: courts and there were arguments about, well, how long does
Speaker 1: the government have to let you file your habeas? Is
Speaker 1: it twenty four hours, is it four hours? Is it
Speaker 1: forty eight hours? And what the Supreme Court basically said, finally,
Speaker 1: because it was I think concerned about a situation where
Speaker 1: people were not going to be given enough notice to
Speaker 1: file habeas corpus actions in these cases. It said, look,
Speaker 1: we're saying all of these Venezuelan Alien Enemies Act cases
Speaker 1: until they can get up to this court and we
Speaker 1: can decide these two issues. The Alien enemies is it
Speaker 1: even applicable here? And in specific cases are people subject
Speaker 1: to it even if it is applicable, And the issue
Speaker 1: of what is a proper amount of notice to give
Speaker 1: in a particular case. So the Court said In the meantime,
Speaker 1: we're just putting this injunction in and nobody's going to
Speaker 1: be able to be deported under this Alien Enemies Act
Speaker 1: until we can find so. It tould the lower courts
Speaker 1: get to it, move, move, move quickly, get us these cases,
Speaker 1: and then we will finally decide these larger issues.
Speaker 2: And they mentioned a couple of times that the stakes
Speaker 2: were high, basically because of the case of Kilmar Abrigo Garcia,
Speaker 2: who the government says it can't return. I don't know
Speaker 2: where that case is at this point.
Speaker 1: Well, correct, the problem is there. The irreparable harm argument
Speaker 1: really sort of became nuclear, because if the government is
Speaker 1: going to say that once it deports somebody, it's not
Speaker 1: going to bring them back, then you raise the stakes
Speaker 1: to a level that makes it impossible to say there's
Speaker 1: not going to be a reparable arm. And so this
Speaker 1: might be a situation where again the litigating posture in
Speaker 1: one case came back to the government's credit here, whereas
Speaker 1: that had just done the one time return, then it
Speaker 1: might have won this case. And so these things are
Speaker 1: always operating in a back and forth discussion. Nothing ever
Speaker 1: happens in a vacuum. And so now the government has
Speaker 1: to understand that if it's going to make the arguments
Speaker 1: I want to deport someone it's never going to bring
Speaker 1: them back, then that is irreparable arm by its nature.
Speaker 1: Because you can bring someone back, then maybe you can
Speaker 1: argue there's no irreparable arm. But if you're saying you're
Speaker 1: never going to bring someone back, then that is by
Speaker 1: the definition irreparable arm. We are in that situation now
Speaker 1: where all of these cases have been stated, and with
Speaker 1: regards to Brego Garcia, what you have is a situation
Speaker 1: where the district judge in Maryland is sort of getting
Speaker 1: back into this case now, and even though they're trying
Speaker 1: to theoretically work something out, you have administration officials still
Speaker 1: saying to the Congress that Abrego Garcia is never coming back.
Speaker 1: And so now the district judge in Maryland is really
Speaker 1: starting to lose her patients, and she's trying to figure
Speaker 1: out again back into this adjudicating posture, who ordered what, when, where,
Speaker 1: and why, to try to decide that there's more that
Speaker 1: this judge can order, either with regard to content or
Speaker 1: with regard to relief, that can get Abrego Garcia back
Speaker 1: into the United States.
Speaker 2: So let's move now to Thursday of last week, where
Speaker 2: the birthright citizenship question was before the Supreme Court. I mean,
Speaker 2: was most of it about birthright citizenship or about nationwide injunctions?
Speaker 1: Right? Very little of the case had to do with
Speaker 1: birthright citizenship. There were some remarks by certain of the
Speaker 1: justices where the justices said, you know, let's assume that
Speaker 1: your birthright citizenship argument is wrong, what do we do
Speaker 1: in terms of the injunction here? And so there was
Speaker 1: a lot of that. There was not a lot of
Speaker 1: discussion in regard to anybody trying to argue too much
Speaker 1: that the birthright Citizenship Executive Order was legal, And I
Speaker 1: don't think the Court is ever going to be inclined
Speaker 1: to rule in that direction. But the question is what
Speaker 1: is the remedy for this and here? Really is there
Speaker 1: a way that there's maybe four or five justices that
Speaker 1: would carve out some new standard that has to be
Speaker 1: applied before a nationwide injunction could be issued, or are
Speaker 1: they just going to do away with them period and
Speaker 1: make people have to certify a class and get class
Speaker 1: action relief, which may be available in some types of
Speaker 1: cases and may not be available in other types of cases. So,
Speaker 1: for instance, in the alien enemies that case where those
Speaker 1: are not have to be filed in habeass you actually
Speaker 1: have in this case that just got decided now about pausing,
Speaker 1: you had a LEDO and Thomas saying you can't get
Speaker 1: class action relief in a hate case. And so that's
Speaker 1: the kind of example of perhaps it wouldn't be available,
Speaker 1: and so you would need a nationwide injunction if you're
Speaker 1: going to do this, And so there's a lot of
Speaker 1: those scenarios the Court was trying to grapple with, where
Speaker 1: is there an adequate substitute for a nationwide injunction in
Speaker 1: cases where it's actually needed, or would you be creating
Speaker 1: some pretty crazy outcomes where for instance, as an example,
Speaker 1: just in the birthright citizenship context, if you had two
Speaker 1: different circuits that ruled two different ways on birthright citizenship
Speaker 1: and if the Supreme Court denied third, just to take
Speaker 1: that example, then what would happen is if you apply
Speaker 1: for a passport in California, you might get it, and
Speaker 1: if you applied for a passport in Texas you might
Speaker 1: not get it. And that's absurd that there is literally
Speaker 1: two different rules for American citizenship depending on which passport
Speaker 1: office you apply in, and so you would think that
Speaker 1: this would not be the exact kind of case where
Speaker 1: you'd want to see this issue up. But I don't
Speaker 1: know what they're going to end up with in this context.
Speaker 2: Jess as Elena Kagan, who was a FORMERUS Listener General
Speaker 2: I believe, said something like I wouldn't have brought this
Speaker 2: case if I were you.
Speaker 1: Yeah, it definitely seems as the weirdest case ever to
Speaker 1: bring a nationwide injunction case. You would think you would
Speaker 1: want to bring it with regard to something like can
Speaker 1: you fire people in the parking meter service or something?
Speaker 1: You know some case of states like that way or Okay,
Speaker 1: so maybe the parking meter people in one place would
Speaker 1: be fired in another place. They couldn't be that kind
Speaker 1: of thing. But to do it here in a case
Speaker 1: that clearly there should be one federal standard of who
Speaker 1: is a US citizen and who isn't and where. If
Speaker 1: you don't have one standard, all that will happen is
Speaker 1: that people will move to the location where they can
Speaker 1: get citizenship just seems very strange to use that as
Speaker 1: the case that people want to have this issue of
Speaker 1: nationwide injunction. But at least, it clarifies the issues for
Speaker 1: the court to really think of the stakes here of
Speaker 1: having an interesting background of saying okay in this exact
Speaker 1: nationwide injunction case involving birthright citizenship, if we banned nationwide injunctions,
Speaker 1: how would we move forward in this world? And so
Speaker 1: at least it gives an interesting thought process. It really
Speaker 1: is the opposite of a straw man. This is sort
Speaker 1: of the Steelman thing where if you can write an
Speaker 1: argument in this case for ending nationwide injunctions, then you
Speaker 1: definitely have a strong standard that would apply in pretty
Speaker 1: much any other context.
Speaker 2: Now, let's turn to a reality show where immigrants would
Speaker 2: compete for US citizenship. I say that with a question
Speaker 2: mark because it sounds over the top, But the Department
Speaker 2: of Homeland Security is reportedly con considering being part of
Speaker 2: a show where immigrants would compete in various contests and
Speaker 2: the winner would be awarded citizenship. The show is being
Speaker 2: pitched by Rob Warsoff, who produced the Duck Dynasty reality show.
Speaker 2: Is this doable?
Speaker 1: Leon Well? What has been admitted to so far is
Speaker 1: that there have been meetings with officials at the Department
Speaker 1: of Justice about this, and what has also been I
Speaker 1: think seems to be not refuted by anyone, is that
Speaker 1: Secretary Nome has not met with the individuals trying to
Speaker 1: do this show. But what we know is that there
Speaker 1: is a desire to have a show where it's a
Speaker 1: reality show type competition where there's multiple people trying to
Speaker 1: get US citizenship and only one of them gets it
Speaker 1: at the end of the show. So there's a whittling
Speaker 1: down each episode as to a person who gets eliminated,
Speaker 1: and then only one person or perhaps one family gets
Speaker 1: the citizenship. And so interestingly, I've been asked by various
Speaker 1: reporters if I can think of a way where this
Speaker 1: could actually work under the law, and I haven't actually responded,
Speaker 1: but I'll do it here June, since we have since
Speaker 1: we have our podcast. And so as much as I
Speaker 1: wouldn't want this to be a show, you know, there's
Speaker 1: another immigration show that has huge rating called Ninety Day Fiance.
Speaker 1: I don't know if you've seen that one. I hadn't.
Speaker 2: I didn't know it was an immigration show though, okay, it's.
Speaker 1: An immigration show. Yeah, Because what happens is there's a
Speaker 1: visa called a cave visa. Here's how this works. If
Speaker 1: a US citizen is abroad. Let's say you go abroad
Speaker 1: because you're at your university and you take a semester
Speaker 1: abroad in France or something. Or let's say you're working
Speaker 1: at a project in Germany or Australia or wherever. You
Speaker 1: meet someone that you love. You're now in a very
Speaker 1: difficult situation because if you bring the person into America
Speaker 1: on a visitor visa and you get married to them,
Speaker 1: theoretically that person is committing immigration fraud because you're not
Speaker 1: supposed to be coming in on a visitor visa with
Speaker 1: an intent to get married. And if you do the
Speaker 1: long marriage process, how broad, then you might be separated
Speaker 1: from your spouse for a year or two, which is
Speaker 1: its own hardship. Nobody wants to be separated from their
Speaker 1: spouse for a year or two. So there's a visa
Speaker 1: that was created by Congress called the CA visa, the
Speaker 1: fiance visa, which says, we're going to help you circumvent
Speaker 1: this intent problem by giving you a visa that allows
Speaker 1: you to come in kind of like a visitor, but
Speaker 1: you have to get married in ninety days in order
Speaker 1: to say and then you can do the process like
Speaker 1: if you had met someone here and got married, and
Speaker 1: so that's the fiance visa. But what this TV show
Speaker 1: did is it decided to flip that on its head
Speaker 1: and say, we're going to bring people in and give
Speaker 1: them ninety days to decide whether they fall in love
Speaker 1: with each other or not. If they don't fall in
Speaker 1: love with each other, then they have to go. So
Speaker 1: it's kind of flipped the idea on its head. And
Speaker 1: so because that show has been wildly successful, even though
Speaker 1: it's not really what the fiancee visus for. It's not
Speaker 1: meant for the spouse to say, here, you have ninety
Speaker 1: days to impress me, or you're out of the country.
Speaker 1: It's not meant for that. But that's what this show
Speaker 1: has turned into very riveting television.
Speaker 2: Nevertheless, I'll admit my daughter has watched it.
Speaker 1: No, no, fair enough, I've seen it. I've seen it
Speaker 1: because people have brought it to my attention, and I'm
Speaker 1: both shocked and admiring at the same time that someone
Speaker 1: had such a perverse idea to take the immigration code
Speaker 1: and turn it on its head like this.
Speaker 2: It seems like competing for US citizenship would involve the
Speaker 2: government more. In the show, people.
Speaker 1: Say, well, no, the government doesn't have the authority to
Speaker 1: do well. So I've tried to think how could you
Speaker 1: do this? And the point is you could do it,
Speaker 1: but what you would need to do is you would
Speaker 1: need to have the Department of Justice in cahoots with this.
Speaker 1: And here's how it would work. So there is a
Speaker 1: stud called the cancelation of removal statues. And what the
Speaker 1: cancelation of removal statues says is, if you have been
Speaker 1: here illegally for ten years or more, and you have
Speaker 1: either a US citizen or a lawful permanent resident child
Speaker 1: or spouse who you being deported would cause extreme and
Speaker 1: unusual hardship to them, then you can ask an immigration
Speaker 1: judge to let you cancel your removal and stay in
Speaker 1: the United States. And what actually happens is if the
Speaker 1: immigration judge cancels the removal, you get a green card.
Speaker 1: This is a defense to a deportation proceeding. But again,
Speaker 1: you have to have been here ten years, and you
Speaker 1: have to have a qualifying US citizen child or US
Speaker 1: citizen spouse. And usually the point is these people have
Speaker 1: to be very sick or there has to be some major,
Speaker 1: major problem for why you would get this approved Okay,
Speaker 1: So the rule is only four thousand people can get
Speaker 1: this status a year, and so at the moment there's
Speaker 1: many more people who have been approved for this status,
Speaker 1: then there are slots, and so there's a bunch of
Speaker 1: people whose cases are in abeyan. So what you could
Speaker 1: do if you had the approval from the Department of
Speaker 1: Justice is you could pick twelve of these people whose
Speaker 1: cases are in abeyan and basically have them fight it
Speaker 1: out on TV as perversus, that is, for which one
Speaker 1: of them will get one of these four thousand plucks.
Speaker 1: Now they wouldn't get citizenships, they would get a green card.
Speaker 1: But then there actually is another statue which, if you
Speaker 1: wanted to interpret it again very very very very broadly
Speaker 1: and loosely compared to its text, allows five people, literally
Speaker 1: just five, to be given citizenship immediately if either the
Speaker 1: direct sure of the CIA or the Attorney General or
Speaker 1: the DHS Secretary says they've made an extraordinary contribution to
Speaker 1: the national security of the United States, which obviously winning
Speaker 1: a TV show wouldn't do. But maybe you'd make some
Speaker 1: argument that they provided such a good role model that
Speaker 1: now everyone will last that way, and that will make
Speaker 1: the security of the US better in some way. I
Speaker 1: don't know.
Speaker 2: Maybe you should expect to call from the producer. Leon.
Speaker 2: It sounds like a crazy idea, but there are a
Speaker 2: lot of reality shows that I would never have imagined
Speaker 2: would work. This could be the next one. Thanks so much, Leon.
Speaker 2: That's Leon Fresco of Honden Knight Up. Next, does Trump's
Speaker 2: interim pick for DCUs attorney test the appointment's power? This
Speaker 2: is Bloomberg. President Trump has appointed a second interim US
Speaker 2: attorney for the District of Columbia. Former Fox Knew host
Speaker 2: Janine Pierro was sworn in Wednesday as the next interim
Speaker 2: US Attorney for DC after Trump pulled the nomination of
Speaker 2: Ed Martin, who had served as the interim DC US
Speaker 2: attorney since January. The back to back interim US attorneys
Speaker 2: test the bounds of the federal statute governing temporary officials.
Speaker 2: Joining me, as constitutional law expert Harold Krant, a professor
Speaker 2: at the Chicago Kent College of Law, he'll tell us
Speaker 2: about what happened with Ed Martin that led to Janine
Speaker 2: Piero getting appointed.
Speaker 1: Well.
Speaker 4: The Attorney General, through the President, has the power to
Speaker 4: appoint an interim United States Attorney, which is the chief
Speaker 4: prosecutor for a variety of federal districts. Ed Martin was
Speaker 4: selected as the chief prosecutor for the US Attorney for
Speaker 4: the District of Columbia, and under the statute, a interim
Speaker 4: can serve for one hundred and twenty days. If at
Speaker 4: one hundred and twenty day is there's no permanent US
Speaker 4: Attorney appointed, then according to the statute, it's the DC Circuit,
Speaker 4: which is somewhat unusual then would have the power to
Speaker 4: appoint an interim. After the fact Ed Martin was removed
Speaker 4: from office because of political pressure prior to the one
Speaker 4: hundred and twenty days, which leaves open the question of
Speaker 4: who can fill the gap. Can the Attorney General appoint
Speaker 4: another interim or with that displaced the power of the
Speaker 4: Court to appoint an interim, And in the background is
Speaker 4: the Senate's power to confirm an important position might be
Speaker 4: US Attorney because with these successive interims, who either appointed
Speaker 4: by the Court or by the Attorney General, there is
Speaker 4: no rule for the Senate in terms of confirming a
Speaker 4: permanent person in that position.
Speaker 2: Does the US Attorney have to be from the area
Speaker 2: that he or she's.
Speaker 4: Appointed to there's no residency requirements to knowledge, so she
Speaker 4: is qualified and indeed in the background is lurking. I
Speaker 4: think the Senate would probably confirm her selection as the
Speaker 4: US Attorney even though obviously she's controversial because of her
Speaker 4: background with Fox News.
Speaker 2: So she has one hundred and twenty days in office.
Speaker 2: Is that right?
Speaker 4: That's the question because some people think, and Senator Durbin
Speaker 4: raised the question of whether her appointment was illegal, that
Speaker 4: perhaps the Attorney General can only have one answer appointment
Speaker 4: and after that time, either the Court would have to
Speaker 4: make an interemployment or the President would have to submit
Speaker 4: a permanent name for Senate consideration. So the difficulty with
Speaker 4: her appointment is that it might be illegal. And if
Speaker 4: it's illegal, then anybody who's convicted while she serves as
Speaker 4: the interim use attorney might have grounds to challenge their
Speaker 4: conviction on the ground that she was improperly appointed.
Speaker 2: I mean, it has been done before, right where there's
Speaker 2: the interim after interim after interim.
Speaker 4: There have been several of circumstances of a sort of
Speaker 4: a chain of interim appointments which then cut into either Again,
Speaker 4: the power of the Senate to approve a permanent appointment
Speaker 4: or the power of the court to appoint an interim attorney.
Speaker 4: So it's happened in Massachusetts and a lower court appeldate.
Speaker 4: There was an issue in New Mexico, and I believe
Speaker 4: in Illinois, so that's not unprecedented. But there is very
Speaker 4: few judicial tests, and it's really kind of a question
Speaker 4: of a letter versus the spirit of the law. There's
Speaker 4: nothing in a law that clearly states you can't have two, three,
Speaker 4: four seven interim appointments all less than one hundred and
Speaker 4: twenty days. But it's certainly the spirit of the statute
Speaker 4: that suggests that you only can have one intern appointment
Speaker 4: and then it would go either to a permanent appointment
Speaker 4: or to judicial appointment of a interim use security, which
Speaker 4: has also happened in our history.
Speaker 2: I mean, he could just nominate her to be the
Speaker 2: US Attorney for DC.
Speaker 4: Right absolutely, and I think the Senate would confirm he
Speaker 4: hasn't done that yet, maybe because he wants to see
Speaker 4: how she'll behave I have no idea what the thinking is,
Speaker 4: or maybe he wants to test the statute. But this
Speaker 4: seems to be a very minor tesk in comparison to
Speaker 4: all of the other article two challenges that he has instigated,
Speaker 4: so it's unclear why he hasn't point her and then
Speaker 4: this whole issue would go away.
Speaker 2: In his first term, he said he likes the temporary
Speaker 2: There was more turnover in his first term. At this
Speaker 2: point in his first term, well, I do think.
Speaker 4: That it does give him some kind of immediate power.
Speaker 4: And the message to Janine is, do a great job
Speaker 4: what I want you to do, and then maybe I'll
Speaker 4: give you the permanent employment and I don't want to
Speaker 4: worry about any kind of removal or not. I'll just
Speaker 4: give a permanent employment. And that way he has more
Speaker 4: of a control sort of testing out whether or not
Speaker 4: she would serve his will, if you will effectively in
Speaker 4: that role.
Speaker 2: He's not the only president to use interim appointments. Is
Speaker 2: it a trend sort of? And is that because Senate
Speaker 2: confirmation is difficult.
Speaker 4: Lots of times, particularly at the beginning of an administration,
Speaker 4: before you know all your stucture in order, there's a
Speaker 4: need to have a great many interim appointments, and Congresses
Speaker 4: tried to regulate that, specifically with US attorneys as we're discussing,
Speaker 4: but also with all generally officers nined States, and they've
Speaker 4: done a very complex statue calls of the Federal Vacancy's
Speaker 4: Reform Act, which tries to limit who the president can
Speaker 4: appoint for these acting roles. But this particular statute is
Speaker 4: carve out from the Federal Vacancy Reform Acts, and so
Speaker 4: it is more open ended as to whether these successive
Speaker 4: appointments can be made or not. Not Ironically, President Trump
Speaker 4: benefited from this because in his Moral Lago Documents case,
Speaker 4: Judge Ilean Cannon dismissed the indictment against him because she
Speaker 4: ruled that the Special Council have been illegally appointed. And
Speaker 4: most people disagree with that ruling as a remedy. But
Speaker 4: the problem with the appointment is that that is a
Speaker 4: president or any criminals who's been convicted under the watch
Speaker 4: of an interim US attorney to argue that the whole
Speaker 4: indictment should be thrown out. So again, I think many
Speaker 4: people disagree with Judge Cannon's reasoning in President Trump's case,
Speaker 4: but it does show that there is a risk with
Speaker 4: this particular appointment.
Speaker 2: I mean, if this was a Senate that was less partisan,
Speaker 2: would they be concerned that this is taking away the
Speaker 2: Senate's power.
Speaker 4: Well, that's exactly what Senator Durbin articulated and said that,
Speaker 4: you know, by having the successive or he called it
Speaker 4: a daisy chain of appointment of interims, the president can
Speaker 4: sap the Senate of its power to either confer or
Speaker 4: withhold consent. And you know, in a matter of theory,
Speaker 4: Center Durbin's absolutely correct. But there's nothing in the statute
Speaker 4: specifically that prevents a series of inter appointments.
Speaker 2: And tell us how Trump is pushing his power to
Speaker 2: fire anyone, even those heading independent agencies.
Speaker 4: Indeed, he has discharged members of many agencies that Congress's
Speaker 4: deemed should be somewhat independent of the president's control, namely
Speaker 4: those sitting on top the Federal Labor Relations Authority, the
Speaker 4: National Labor Relations for the Federal Trade Commission, among others
Speaker 4: in his executive order. And well, his conduct suggests that
Speaker 4: there is not such thing as an independent agency. In
Speaker 4: other words, that Congress lacks authority under Article one of
Speaker 4: the Constitution in creating an office to determine that the
Speaker 4: office is more effectively run if it can boast some
Speaker 4: kind of independence from day to day presidential meddling. So
Speaker 4: that's the big issue, And indeed, just a couple of
Speaker 4: days ago, the administration announced that it would not defend
Speaker 4: a challenge to even the independence of an administrative law
Speaker 4: judge in an agency proceeding was a case involving in
Speaker 4: the National Labor Relations Board, and there it's not even
Speaker 4: ahead of an agency. Here, there is somebody who's totally
Speaker 4: subordinate to an agency, and Administration at least has expanded
Speaker 4: this view that even such inferior officers of the United
Speaker 4: States cannot be shielded from a plenary move authority in
Speaker 4: that case of the agency, which again is then subject
Speaker 4: to the plenary move authority of the president. So it's
Speaker 4: even expanding this notion of the fact that there can
Speaker 4: be no independence extended even to independent fact finders who
Speaker 4: are the administrative law judges in those cases, suggests an
Speaker 4: incredible extent and breadth of this theory that there is
Speaker 4: no role for Congress to stay. We want to have
Speaker 4: some independence of scientific judgment, of judicial judgments of inspector
Speaker 4: general judgment, and that seems to be well within both
Speaker 4: historically well within the constitutional purview of Congress to make
Speaker 4: such decisions.
Speaker 2: Is Trump different in this respect, or have other presidents
Speaker 2: wanted the power to fire people in these positions.
Speaker 4: He has expanded this power greatly. President Biden also remove
Speaker 4: some agency officials and say that they should not be
Speaker 4: protected from at will removal, but nothing in comparison to
Speaker 4: President Trump's executive order explaining that he's against all the
Speaker 4: sort of exercises of the independent judgment removed from presidential control.
Speaker 4: And we're seeing this played out in the discharges of
Speaker 4: these agency officials and most recently in his refusal to
Speaker 4: defend the constitutionality unconstitutionality of protections of the suborted administry
Speaker 4: of law judges from at will removal as well. So
Speaker 4: we've seen evidence of this from President Reagan on in
Speaker 4: terms of the last generation and a half, but it's
Speaker 4: really taken a new sort of level of activism by
Speaker 4: President Trumck.
Speaker 2: And I don't know if I've ever heard of a
Speaker 2: court appointing a US attorney.
Speaker 4: I do think that the statute allowing inter appointment of
Speaker 4: US attorneys by the courts is odd. And even though
Speaker 4: the Supreme Court upheld court appointment of the Special Council
Speaker 4: under the Independent Council Act in the Morrison versus Olsen case,
Speaker 4: it's always struck me that these cross branch appointments are
Speaker 4: quite sketchy, and they seem to undercut the notion of
Speaker 4: autonomy of one branch as opposed to the other. So,
Speaker 4: in terms of one potential issue that underlies this recent
Speaker 4: appointment Judine Perrot to be US Attorney of the DC
Speaker 4: Circuit is whether if a court would actually try to
Speaker 4: appoint an interim US attorney, whether the Trump administration would
Speaker 4: attack that as on constitutional under employments plause of the
Speaker 4: Article two. Because I think it's a plausible argument that
Speaker 4: says that the head prosecutors and executive function and why
Speaker 4: should the court be appointing someone with such kind of
Speaker 4: executive authority.
Speaker 2: Well, we'll have to see if anyone even challenges the
Speaker 2: interim following interim appointments. Thanks so much, Hal. That's Professor
Speaker 2: Harold Krant of the Chicago Kent College of Law. And
Speaker 2: that's it for this edition of the Bloomberg Law Show.
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