Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: Let me be clear, the Department does not tolerate any
Speaker 1: mistreatment of any migrant and will not tolerate any violation
Speaker 1: of its values, principles and ethics. Deputy of Homeland Security
Speaker 1: Secretary Alejandro Majorcis said horse patrols have been suspended and
Speaker 1: an investigation is underway after footage emerged of border patrol
Speaker 1: agents using horses to block and move migrants on the
Speaker 1: banks of the Rio Grande. A massive migrant camp sprouted
Speaker 1: in the town of Del Rido, Texas, speaking at about
Speaker 1: thirty thousand people, mainly Haitians, many of whom have been
Speaker 1: in Mexico or other Latin American countries for years. The
Speaker 1: camp has now been cleared. Some migrants have been deported,
Speaker 1: others have been allowed to stay in the United States,
Speaker 1: at least temporarily, to pursue their claims for asylum. However,
Speaker 1: the controversy over the treatment of the Haitian migrants remains.
Speaker 1: Joining me Is Leon Fresco, a partnered Hollanden Night, a
Speaker 1: former immigration official in the Obama administration. Leon there's been
Speaker 1: outrage over the conduct of these border patrol agents. So
Speaker 1: it's clear that what they were doing was they were
Speaker 1: taking the reins from the horses and using them to
Speaker 1: try to restrain people trying to come into the country
Speaker 1: and also to push people back into Haiti. But the
Speaker 1: point is, regardless of what you're doing, a the opticks
Speaker 1: of the situation are unfortunate. But all of this is
Speaker 1: a result of a lack of planning on how to
Speaker 1: address foreseeable surges into the southern border. And so this
Speaker 1: is where I have a bit of frustration because I
Speaker 1: had a lot of sympathy towards the Binden administration, but
Speaker 1: this is now October basically, and you could have taken
Speaker 1: the time period that existed due to the COVID crisis
Speaker 1: and due to the fact that when you inherited the
Speaker 1: border it was a closed border and say to the
Speaker 1: immigration community, we need a few months to build the
Speaker 1: plane first before we fly it. And the problem is
Speaker 1: you haven't had that. You had them trying to hold
Speaker 1: times to simultaneously fly the plane and build it, and
Speaker 1: so you've never put the capacity there to have expedited processing,
Speaker 1: to have sent adjudication of asylum, so that you would
Speaker 1: never get to a position where you would have thousands
Speaker 1: of people surging in any one location. Now we've heard
Speaker 1: a million times and Secretary Majorcas said this, the immigration
Speaker 1: system is broken. But do they have the ability to
Speaker 1: do what you just suggested within the parameters of what
Speaker 1: they're working with. Well, the point is you never have
Speaker 1: the ability to do it instantaneously, but you have the
Speaker 1: ability if you invest in a momentary pause to build
Speaker 1: a system with your allies in the region that actually
Speaker 1: has regional processing centers all around the region where people
Speaker 1: can go and asked for asylum or refugee status. And
Speaker 1: then if you try to get around them and go
Speaker 1: to the southern border, you would tell people know there's
Speaker 1: no entrance. That's a lot here. You're being excluded from
Speaker 1: the country because you have to apply for asylum through
Speaker 1: these regional processing centers in Mexico and in Central America.
Speaker 1: There was a way to do this, and unfortunately this
Speaker 1: time that could have been used during the COVID era
Speaker 1: to say the people, look, we can't allow people to
Speaker 1: come in through the southern border. During the COVID area,
Speaker 1: we weren't allowing people to do this viasa the Europe
Speaker 1: until November. You could have used that same time period
Speaker 1: that we had with Europe and built a very solid
Speaker 1: refugee system the process people abroad, and that was fair
Speaker 1: and actually had a robust number of people that you
Speaker 1: let in. You could have done that, but that wasn't done.
Speaker 1: Maiorcas was asked if the administration policies are encouraging more immigration.
Speaker 1: Is that true to a certain extent. Are some of
Speaker 1: the migrants coming here because Biden is in office. Well,
Speaker 1: there's always a factor here that's sensitive to what people
Speaker 1: are hearing, and so what people are hearing sometimes can
Speaker 1: be true, and what people are hearing can sometimes be false.
Speaker 1: And so you can't control if smugglers are telling people
Speaker 1: false narratives about coming to the United States. But in
Speaker 1: this case, the narrative had some truth to it because
Speaker 1: you had, For in the Haitian example, the temporary protective
Speaker 1: status for Haitians in the United States was extended to
Speaker 1: a larger group of Haitians than had already had that status,
Speaker 1: and I agreed with doing that. The point is, if
Speaker 1: you're going to do that, and then you have to say, well,
Speaker 1: the foreseeable outcome of that is there's going to be
Speaker 1: a desire from other Haitians to want to come into
Speaker 1: the United States to see a Vaguan take advance of
Speaker 1: both this program or maybe a later extension that would
Speaker 1: happen for additional Asians. And so at that point, that's
Speaker 1: where you have to say, these things don't happen in
Speaker 1: a vacuum. We have to have a system that is compassionate,
Speaker 1: but also it is stringent for people who don't want
Speaker 1: to use the vehicles of compassion. And that's the place
Speaker 1: where I think there will be an equilibrium on this.
Speaker 1: You're starting to see it, but the equilibrium is going
Speaker 1: to take some sing to develop. Man, what do you
Speaker 1: think is likely to happen with the investigation into the
Speaker 1: border agents. Well, the point is this, whenever there's any
Speaker 1: use of force, which is essentially what this is, you
Speaker 1: have to go through the protocols of a use and
Speaker 1: force investigation and determine whether the use of force was
Speaker 1: justified or not in a picular situation. And the problem
Speaker 1: with a lot of these video footages if you don't
Speaker 1: get the whole context of what was happening before, what
Speaker 1: was happening after, nobody has any idea. Now, are the
Speaker 1: videos that you saw in the sharp context that you
Speaker 1: saw them in pleasant videos to look at. No, they
Speaker 1: are not. But until you have all of the information
Speaker 1: and all of the facts, it's hard to make a
Speaker 1: determination that someone acted without cause or acted in the
Speaker 1: wrong way because you don't know what they're trained to
Speaker 1: do in that situation. You don't know what was happening,
Speaker 1: you don't know what they did in the reality the
Speaker 1: minutes before that, and so there's nothing that anybody can
Speaker 1: say commenting on it that takes the place of an investigation.
Speaker 1: That's what's required under the law, and so that's the
Speaker 1: new pace that's that's necessary here. As far as the
Speaker 1: numbers we've been given on the Haitians, about twelve thousand,
Speaker 1: four hundred were released into the US waiting to have
Speaker 1: their asylum cases heard by Immigrant Asian judges, five thousand
Speaker 1: processed by DHS, three thousand in detention, eight thousand returned
Speaker 1: to Mexico, and only about hundred were on flights to Haiti.
Speaker 1: So my first question is what happened to the Biden
Speaker 1: administration using Title forty two to turn the Haitians away.
Speaker 1: Did they decide it wasn't a good idea. I think
Speaker 1: they've been pretty consistent about the fact that they want
Speaker 1: to use Title forty two in situations that it's single adults.
Speaker 1: In situations where there are families or unaccompanied minors, they
Speaker 1: are not wanting to use this title forty two authorities.
Speaker 1: And so the reason you saw these dis joints that
Speaker 1: outcomes is because there were some number of people in
Speaker 1: families and they didn't want to use the title forty
Speaker 1: two and families, and even with some single adults, you
Speaker 1: can't use Title forty two if they have absolutely no
Speaker 1: paperwork and Mexico isn't willing to accept them. So you
Speaker 1: have to have some plan for once you send them
Speaker 1: to Mexico, what's going to happen to them, because Mexico
Speaker 1: is also a partner in the Title forty two efforts.
Speaker 1: And so it's a lot easier to use Cital forty
Speaker 1: two with mexict maginals or even with Central American nationals
Speaker 1: that Mexico can have a plan for wek creating back
Speaker 1: to their neighboring country. But with Haitians, it's a lot
Speaker 1: more complicated to use Cital forty two because the Haitian
Speaker 1: doesn't belong either in Mexico or Central America or the
Speaker 1: United States or anywhere else they belong, either in Haiti
Speaker 1: or some of them had gotten some permission to reside
Speaker 1: in other parts of South America, and so Mexico would say,
Speaker 1: why are you bringing these individuals here? They have no
Speaker 1: jurisdiction to be here, and so that's why you saw
Speaker 1: these disjointed outcome, he said. The Biden administration doesn't like
Speaker 1: to use Title forty two to expel families, but they're
Speaker 1: appealing a judge's order that forbids them from expelling migrant
Speaker 1: family under Title forty two. Yes, and I think there's
Speaker 1: two issues there. Number One, there's the issue of having
Speaker 1: the tool in the tool box, and so they definitely
Speaker 1: believe that they need to have the tool in the
Speaker 1: tool box. But simultaneously, while they're in this litigation, they
Speaker 1: don't want to have thousands of families being excluded under
Speaker 1: Title forty two because a that weakens their litigation position
Speaker 1: that they're only using this tool when it's absolutely needed.
Speaker 1: But be they don't actually have a lot of desire
Speaker 1: to use this tool for families, because there is some
Speaker 1: sympathy for these children, especially sometimes when the children are
Speaker 1: vulnerable ages and you're seeing them at the order and
Speaker 1: you're seeing very sympathetic cases. It's hard to sympally just
Speaker 1: turn those people back and say good luck to you.
Speaker 1: You know, never come here, and whatever happens to you happen.
Speaker 1: And so you have those factors. You have the sympathy factor,
Speaker 1: you have fact that in the litigation you're trying to
Speaker 1: keep the tool alive for when it's really needed. And
Speaker 1: also though you don't want to have thousands and thousands
Speaker 1: that in the cases, because it makes it a lot
Speaker 1: easier for the platance to win than if you say
Speaker 1: you're using it only for cases where it's absolutely needed. Now,
Speaker 1: a notice to appear is typically the first step in
Speaker 1: the deportation process, but the buying administration is handing out
Speaker 1: notices to report. What's the difference. So we talked about
Speaker 1: this in the past. There's been this litigation about that
Speaker 1: your removal proceeding is totally nullified under the law. Now,
Speaker 1: the Supreme Court has said this twice if you get
Speaker 1: a notice to appear that doesn't have the exact time
Speaker 1: they place and location of the hearing. And so what
Speaker 1: happens is when you're having thousands and thousands of people
Speaker 1: and you have no idea where the heck these folks
Speaker 1: are going to how can you say, appear at the
Speaker 1: U S Immigration Court in Chicago on October fourth at
Speaker 1: at seven thirty a m. You don't know. It's it's
Speaker 1: way too complicated. And so what they want to do
Speaker 1: is try to get people to do an ICE check
Speaker 1: in and only then issue the notice to appear that
Speaker 1: has the data that's needed. Because if you issue the
Speaker 1: data that's needs and usually the notice appear without the
Speaker 1: data that's needed, and then the person either misses the
Speaker 1: court date or never shows up or anything, then you
Speaker 1: actually can't move forward with their removal because everything was void.
Speaker 1: You never gave them the right process at the beginning.
Speaker 1: So what they're trying to do is a range of
Speaker 1: situation where the person doesn't show up to their ICE
Speaker 1: check in, they can be detained and then you can
Speaker 1: give them their notice to appear with their actual right
Speaker 1: hearing day. And actually what you would do if you
Speaker 1: would do it in the detention facility itself, as you
Speaker 1: would say, here's your first hearing, and once you've given
Speaker 1: them their first hearing from them on, you've complied with
Speaker 1: the requirements under the law. The DHS Secretary also spoke
Speaker 1: about the conditions for asylum, which we've talked about many times,
Speaker 1: and it seems that when you you listen to the
Speaker 1: stories that a lot of the Haitians are claiming asylum
Speaker 1: for economic reasons, would economic reasons ever get you asylum?
Speaker 1: Purely economic deprivation is not sufficient to get asylum. Now,
Speaker 1: you can have a situation where if what you're suffering
Speaker 1: is pure economic deprivation because of your political opinion. So
Speaker 1: let's say they say people who supported this presidential candidate
Speaker 1: will never be allowed to get a job or access
Speaker 1: to banking, or access to food or anything else. Even
Speaker 1: if you're not tortured or not placed in jail or anything,
Speaker 1: that can be asylum. But if there's general economic deprivation
Speaker 1: countrywide and it's not based specifically on your political opinion
Speaker 1: or your social group, or your religions, or your race
Speaker 1: or your national origin, then that's never going to be
Speaker 1: sufficient to get asylum. Which is why many people who
Speaker 1: apply for asylum don't end up qualifying, is because you
Speaker 1: have to fit that very narrow group of people of
Speaker 1: why they're suffering. Some people are predicting that this is
Speaker 1: going to happen at the border again, is the Biden
Speaker 1: administration doing anything right now to prevent this from happening again. Well,
Speaker 1: the only thing that's happening right now under the Biden
Speaker 1: administration is they're trying to get a new regulation out
Speaker 1: that would make meritorious asylum claims easier to grant right
Speaker 1: there at the border, so that the less meritorious asylum
Speaker 1: claims are placed into a smaller pile of cases. The
Speaker 1: problem is at the end right now, the current backlog
Speaker 1: is in the millions, and no matter who you're placing
Speaker 1: in this quote unquote smaller piles, and no matter who
Speaker 1: you're prioritizing, you're seeing this already, for instance, in Boston
Speaker 1: and in Los Angeles, these priority dockets quote unquote still
Speaker 1: have dred people in cases for one judge, and so
Speaker 1: that judgesn't go to get around to doing all of
Speaker 1: those fifties hundred cases anytime soon. And so even if
Speaker 1: you said, well, the goal was to get those done
Speaker 1: in nine months, it's clear you're not going to get
Speaker 1: those done in nine months. And so I just think
Speaker 1: at some point we have to grapple with a system.
Speaker 1: And neither side has done this, neither Trump nor Biden.
Speaker 1: Because Trump in the end, didn't have the goal of
Speaker 1: one thing, the meritorious cases in the United States. Their
Speaker 1: approach was they didn't want any cases in the United States,
Speaker 1: and the Biden administration hasn't wanted to be perceived as
Speaker 1: overly insensitive to these cases, which is also a valid goal.
Speaker 1: So both goals are valid depending on how you look
Speaker 1: at it. But I just think we need to get
Speaker 1: to an approach finally at some point where we have
Speaker 1: regional processing centers in Mexico in Central America where people
Speaker 1: can go and make those claims and actually have assistance
Speaker 1: making those claims so they don't do it on their own.
Speaker 1: They would have people from our government as that to
Speaker 1: make these claims, and then those cases get adjudicated and
Speaker 1: you either use that process and you get into the
Speaker 1: United States, or if you don't use that process, you
Speaker 1: are automatically excluded from the United States. And I think
Speaker 1: that's the fairest thing we can do for this hemisphere,
Speaker 1: is to give people with fair asylum claims a chance
Speaker 1: to do it. But it doesn't have to be at
Speaker 1: our southern border. And so this is what continues to
Speaker 1: be the complicating practicer here. So the governor of Texas
Speaker 1: has said that they're going to start arresting people for trespassing.
Speaker 1: Is that the order that's being a challenge by the
Speaker 1: Biden administration. Well, I'm first of all, that's the provision
Speaker 1: that Jan Brewer in twelves during the Arizona and Law.
Speaker 1: At all of those three court cases, she was trying
Speaker 1: to do the same concept basically, which was to arrest
Speaker 1: undocumented people for dress passing in Arizona. But yeah, Blue
Speaker 1: being salad. It's one of many things being valid by
Speaker 1: the by the administration. But the interesting question is they're
Speaker 1: trying to pee up an issue that if you look
Speaker 1: at who decided the Arizona decision, that was the six
Speaker 1: three decisions, but the six justices who rules for the case,
Speaker 1: the only ones who are left are Robert Prota, Major Kagan,
Speaker 1: and and Roberts. And so you have five justices who
Speaker 1: either ruled on behalf of Arizona or are news to
Speaker 1: the court, which is having a Coney, Barrett and Dorsage.
Speaker 1: And so the question is with those five justices end
Speaker 1: up overturning the Arizona And so it's possible that with
Speaker 1: these five justices who are not on the record or
Speaker 1: on the record on the side of state enforcement of
Speaker 1: immigration law, they may decide that the Arizona decision should
Speaker 1: be overturned and that state can start doing immigration enforcements.
Speaker 1: That would be similar to, for instance, states enforcing drug laws.
Speaker 1: The federal government enforces drug laws and state enforced drug laws,
Speaker 1: and so you might end up actually seeing that. And
Speaker 1: I think that's not necessarily going to be decided this week,
Speaker 1: but it's definitely something to be looking for during the
Speaker 1: course of the Biden presidency. Okay, so now I want
Speaker 1: to talk about the Biden administration released its proposed measure
Speaker 1: to preserve and fortify DACO. Well, one of the criticisms
Speaker 1: that has been given in this litigation about the legality
Speaker 1: of DACCA was that DOCCA was not simply an issue
Speaker 1: of prosecutorial disgray shion, but was actually a program. And
Speaker 1: why it was with a program. It was a program
Speaker 1: because it had requirements had to be under succeed, you
Speaker 1: had to arrive priored at twelve, you had to have
Speaker 1: not committed certain crimes. And so once you start putting
Speaker 1: criteria on these lists of prosecutorial discretion, and it's not
Speaker 1: just a case by case decision, but it's actually based
Speaker 1: on criteria that that needed to be something that was
Speaker 1: done through formal rulemaking. And so one of the things
Speaker 1: that the court had said was that Doctor was illegal
Speaker 1: because formal rulemaking has not been issued to actually implement
Speaker 1: the program. And so now the Biden administration has finally,
Speaker 1: after all of these years, decided to implement the formal
Speaker 1: rulemaking for the program. Now that will shield it from
Speaker 1: that attack. But then there will be the ultimate question,
Speaker 1: which is the one that we've been at this for
Speaker 1: ten years and nobody's ever ruled that definitively, which is
Speaker 1: is data illegal? I mean, tim a president actually healed
Speaker 1: a certain segment of the population from removal and then
Speaker 1: actually allow them to work in the United States. That's
Speaker 1: the question that hasn't been decided yet, and so that's
Speaker 1: the question that will ultimately be set up to the
Speaker 1: Supreme Court as a result of this regulation. So they'll
Speaker 1: be able to get all of the procedural reasons for
Speaker 1: invalidating Doctor out of the way, and we will now
Speaker 1: be finally peeing up this issue of is DOCTA at
Speaker 1: the end of the day, something a president can or
Speaker 1: can't move. So this rule will will answer the concerns
Speaker 1: that that Texas judge had. Yes, it will. I will
Speaker 1: answer the procedural complaints that the Texas judge had, which
Speaker 1: is that the proper procedures were not followed in implementing DOCTA,
Speaker 1: that there wasn't the formal rulemaking, and then notice and comment.
Speaker 1: People can comment on the rule and say what they
Speaker 1: don't like, and then you issue a final rule that's
Speaker 1: going to take care of all of that, but it
Speaker 1: won't take care of the judge's decision that in the
Speaker 1: end DOCCA is illegal, that the laws have not forbid
Speaker 1: the shielding of a certain group from deportation, followed by
Speaker 1: then not just the shielding, but the implementation of work
Speaker 1: rights and rights to travel abroad from this group. And
Speaker 1: so with that that will finally be the substantive legal
Speaker 1: issue beat up to the Supreme Court is whether DOCA
Speaker 1: is actually legal or illegal. And so that's the issue
Speaker 1: that finally no court is grappled with. Finally the Supreme
Speaker 1: Court wild grapple with it at some point. That's Leon
Speaker 1: Fresco of Hondon Knight. We have a lot to talk
Speaker 1: about today. Let's get started with Apple TV plus One
Speaker 1: thing CEO Tim Cook did not talk about the Apple
Speaker 1: event was the injunction that will go into effect on
Speaker 1: December nine, requiring Apple to make most significant change to
Speaker 1: its app store business model since launching. In the antitrust
Speaker 1: lawsuit brought by Epic Games, the judge ruled that Apple
Speaker 1: must give developers the option of bypassing its commission on
Speaker 1: in app purchases, a cut that runs as high as
Speaker 1: thirty percent and could cost the tech giant a few
Speaker 1: billion dollars annually. Joining me is antitrust law expert Harry First,
Speaker 1: a professor at and Why You Law School? Harry. There
Speaker 1: was a lot of talk after the decision about the
Speaker 1: hit to Apple, but it was Epic that filed for
Speaker 1: an appeal first. So who won this case? It was
Speaker 1: pretty much a loss for Epic and a lot of
Speaker 1: gain for Apple and your right. Epic filed the appeal
Speaker 1: because they want to go further than the judges somewhat
Speaker 1: limited but very interesting injunction which will stop to some
Speaker 1: degree the requirement that you can't steer people to less
Speaker 1: expensive payment system. Did the judges ruling leave enough m
Speaker 1: for Apple to try to keep its app store revenue
Speaker 1: stream largely intact? For example, it could still collect a
Speaker 1: commission of up to despite the ruling. Yeah, there's nothing
Speaker 1: that prevents Apple from collecting whatever it can collect. And
Speaker 1: the mechanism that Apple chose, which is to run it
Speaker 1: through its own payment system, is smart from Apple's point
Speaker 1: of view. As she pointed out, it makes sure that
Speaker 1: they track all the revenue that's generated through the app store.
Speaker 1: Everything that flows through they get, and it doesn't say
Speaker 1: they can't charge royalties to app developers in a different way,
Speaker 1: using different formulas. You know, any party that's trying to
Speaker 1: do something like what Apple's doing has to figure out
Speaker 1: a way that will allow them to make the charges
Speaker 1: and not too many people will escape. So it's not
Speaker 1: clear even at this point how many people will escape
Speaker 1: or whether consumers will bother to choose, because they still
Speaker 1: have to have the option of paying through, you know,
Speaker 1: an in app purchase, and I don't play video games,
Speaker 1: and my guests, as consumers in the middle of the
Speaker 1: video game, would prefer to click, then have to do
Speaker 1: two clicks, which seems to be an impossible burden for people.
Speaker 1: So it may not siphon off that much revenue. Epic
Speaker 1: will have to give some sort of incentive to gamers
Speaker 1: to do this to, you know, make the out of
Speaker 1: app purchase of longer life for a wand or whatever
Speaker 1: in the world people purchase for so much money, apparently
Speaker 1: on the video games they own, like Fortnite. So not
Speaker 1: clear how much of a difference it will make, and
Speaker 1: if it does start to make a revenue stream difference,
Speaker 1: certainly Apple configure out a different approach. The judges order
Speaker 1: doesn't say that Apple has to keep Fortnite on the
Speaker 1: App Store, so they could say, you know, unless you
Speaker 1: pass X number of dollars, you're out of here. And
Speaker 1: I don't see anything in the order that she entered
Speaker 1: at forbids that, and in the main part of federal charges.
Speaker 1: It seems to me it's pretty clear that they could
Speaker 1: do that. So a lot yet to be written. And
Speaker 1: of course this is just one case. You know, there
Speaker 1: are cases elsewhere, and it's unclear what the federal government
Speaker 1: might do. This maybe a little bit of a roadmap
Speaker 1: in certain ways for the federal government. And of course
Speaker 1: there are a non US government's Koreast in the process
Speaker 1: of passing a statute dealing with app stores in the
Speaker 1: fourth highest revenue jurisdiction in the world, which is South Korea.
Speaker 1: The key part was the fight to define the market
Speaker 1: in question. The judge disagreed with both sides about the
Speaker 1: definition of the market. Tell us what she decided and
Speaker 1: whether that will affect any future lawsuits by the Justice Department. Well,
Speaker 1: first of all, one thing to keep in mind, I
Speaker 1: think in terms of how it might affect future cases,
Speaker 1: her decision was very much fact bound. In other words,
Speaker 1: it depended a law on the evidence presented to her
Speaker 1: by the parties. Now, these are very good lawyers, so
Speaker 1: they tailored the case the way they thought it would
Speaker 1: be best. But to some extent it didn't convince in
Speaker 1: a number of different ways. It's not clear that that's irreparable. So,
Speaker 1: for example, a big thing was that she didn't believe
Speaker 1: that consumers were really locked into the Apple platform. I
Speaker 1: am not an Apple user. You may be my view
Speaker 1: of Apple users as they're fanatically locked in. So this
Speaker 1: may be just a failure of proof that it wasn't
Speaker 1: quite presented. She didn't say they weren't locked in. She
Speaker 1: said Epic didn't prove they were. Now, if they're locked
Speaker 1: in or they can't exit, I would prefer to think
Speaker 1: of it that way. That means that if you want
Speaker 1: to serve roughly half of the consumers of games or
Speaker 1: any app, you've got to be on that platform. I mean,
Speaker 1: you just can't give up that market. And if they
Speaker 1: won't migrate over to Android or something else, you are
Speaker 1: a subject to the power of Apple. So I think
Speaker 1: a future case may look at the facts differently or
Speaker 1: try to present them a little differently. So this does
Speaker 1: not bind all future cases, and you're right. The leadoff
Speaker 1: question is how do we define the market. That's very
Speaker 1: unusual for a judge to pick a market that neither
Speaker 1: party proposed, and that she has to sort of make
Speaker 1: up market shares, which are sort of guesses because there
Speaker 1: really wasn't all that much evidence about this market. And
Speaker 1: the market share has turned out to be pivotal because
Speaker 1: they're under six and for monopoly power in the US,
Speaker 1: you're not going to find cases where the shares under six.
Speaker 1: So that was a big deal. It could be different
Speaker 1: next year, you know, Apple selling more iPhones, their markets
Speaker 1: there might be higher. They might find themselves next year
Speaker 1: as having monopoly, and so Apple dodged the worst case
Speaker 1: scenario that the judge might determine that it was a monopolist,
Speaker 1: right right, that was the first part, but that wasn't
Speaker 1: She wasn't content to stop with that. She it up.
Speaker 1: She said, okay, let's go on, because there's a different claim.
Speaker 1: It counts. It doesn't depend on their being a monopolis.
Speaker 1: Different number of counts. Just you know, that's just the
Speaker 1: agreements and restraint of trade. And then she undercut the
Speaker 1: case completely or not. Whether the conduct was anti competitive
Speaker 1: very fair away, although she did indicate that it did
Speaker 1: have some adverse effects on developers, on consumers and on innovation.
Speaker 1: You know that the app store itself, it's sort of
Speaker 1: sat there not you know, Appleton just milking it and
Speaker 1: not really making it better despite complaints about various um
Speaker 1: functionalities that it didn't have. Sort of reminds me of
Speaker 1: what Microsoft did with Internet Explorer for so many years.
Speaker 1: They used it as a gateway and it was a
Speaker 1: terrible program. So there's that. But in the end, she
Speaker 1: cut down the case in every which way and very thoroughly.
Speaker 1: So do you think that in the future, either other
Speaker 1: plaintiffs or the government can use her decision as a
Speaker 1: roadmap for their case. Yes, I say, you know, people do.
Speaker 1: As a teacher, I firmly believe that people learned. So yes,
Speaker 1: I believe it's a belief. It's not necessarily true, but
Speaker 1: it's a belief. So UM, I think you know, any
Speaker 1: litigant UM still concerned with the app store, and there
Speaker 1: are both with Google and UM and with Apple. UM,
Speaker 1: we'll look at this and say, Okay, where where did
Speaker 1: the case not work? And how can we do better
Speaker 1: in the next case? What sort of facts would we
Speaker 1: need to present better, um than in a way that
Speaker 1: would convince the next judge, you know, different judge. And again,
Speaker 1: these were factual determinations. She said Epic didn't carry the
Speaker 1: burden approving some of these things, not that Apple showed
Speaker 1: it was untrue, just that the plaintiff didn't carry its burden.
Speaker 1: So yes, I think there will be some roadmap effect.
Speaker 1: I think that the end of the case, the California part,
Speaker 1: actually is the most interesting and maybe isn't getting as
Speaker 1: much attention as it should because I think that's a
Speaker 1: roadmap for the Federal Trade Commission to use UM, not
Speaker 1: the Sherman Act, which is a normal thing, but unfair
Speaker 1: methods of competition under the Federal Trade Commission Act. And
Speaker 1: that's what she finally went for Harry, will you just
Speaker 1: go back a bit and explain what she did in
Speaker 1: that part of the case. So what what she did was,
Speaker 1: after she pretty much eviscerated Epics case, she said, ah hah,
Speaker 1: but you also do have a state claim under state law.
Speaker 1: And there were two state laws. One is California state
Speaker 1: anti trust law. So she threw out all those claims
Speaker 1: as well under state anti trust law called the Cartwright Act.
Speaker 1: But there's unfair competition law in California which just prohibits
Speaker 1: unfair methods of competition. And she said, well, this is
Speaker 1: a little different because that's broader than the way we
Speaker 1: look at things under normally anti trust law. Um, we're
Speaker 1: not confined two, Um, such a high standard of proof.
Speaker 1: We can look at what she called incipient violations, not
Speaker 1: quite violations. And that gave her the room to say,
Speaker 1: you know, there's really some anti competitive effects. You know,
Speaker 1: they're charging this huge commission rate four years which they
Speaker 1: haven't adjusted, which there are no competitive pressure to have
Speaker 1: them adjust. They're making huge profits. I mean, Plane showed
Speaker 1: that she accepted that idea. Uh, and consumers are being
Speaker 1: denied information so they can make choices, so they're not
Speaker 1: told Hey, you know you could you could buy these
Speaker 1: things outside the and and it would be cheaper. They're
Speaker 1: not being told that, so she said, you gotta tell them. Uh.
Speaker 1: And that lack of information, which he found important for
Speaker 1: market markets needs information, could be an unfair method of
Speaker 1: competition under federal law under Section five of the Federal
Speaker 1: Trade Commission Act. If the FTC wants to use that route,
Speaker 1: it's not quite this is a broader gives them a
Speaker 1: little more power. Uh. And um, I think that's an
Speaker 1: interesting roadmap for the Commission to look at. Harry Apple
Speaker 1: said it's still too early to determine how or when
Speaker 1: exactly it will implement the changes, and that it needs
Speaker 1: to have conversations with the judge. Is that normal that
Speaker 1: you'd have conversations with a judge who already issued a
Speaker 1: ruling about what you're going to do. Well, there's always implementation.
Speaker 1: And um, she did issue an injunction. I don't recall
Speaker 1: whether there's a time within which they have to implement it,
Speaker 1: and that could be subject to negotiation. They could um
Speaker 1: take an appeal to the Court of Appeals to have
Speaker 1: them stay the imposition of that injunction pending you know,
Speaker 1: full review of the case. So that's a possibility. Um,
Speaker 1: And you know the judge also could say, you know,
Speaker 1: show me that you can't do it, but I don't
Speaker 1: believe it, and you just remove this restriction, So just
Speaker 1: follow this injunction. Let's see why it's so hard. So
Speaker 1: it's hard for me to stay whether so you know
Speaker 1: there's still some play in the joints on this. But um,
Speaker 1: you know, judges, when they enter injunctions you usually want
Speaker 1: the litigants to obey, and you know, as a litigant,
Speaker 1: you you want to abet. You don't want to be
Speaker 1: held in contempt. Uh. So Um, if the judge isn't,
Speaker 1: I don't know whether she's scheduled any hearing, and we
Speaker 1: already have appeals by Epic. I assume Apple is going
Speaker 1: to appeal as well. Um, So hard to say exactly
Speaker 1: when this will happen or if it will happen. It's
Speaker 1: the Court of Appeals may simply, um, stop in position
Speaker 1: of the injunction until until the appeals are fully heard.
Speaker 1: Do any appeals issues you know, jump out at you. Oh.
Speaker 1: The first thing I would say is I would read
Speaker 1: that case from epics point of view is, oh, what
Speaker 1: are we gonna do. So it's a pretty thorough opinion.
Speaker 1: I mean, I think, frankly, there's some legal mistakes in it,
Speaker 1: but are they critical legal mistakes. I'm not sure. You know,
Speaker 1: it might be picking around the edges, but that's not
Speaker 1: what epics about. And I think they have to attack
Speaker 1: the fundamental way the court decided the case when a
Speaker 1: lot of it is factual, and appellate courts don't sit
Speaker 1: to review the facts. Although they do that, they don't
Speaker 1: say they do. So. The appelate courts are there to
Speaker 1: review matters of law, and it may be that they're
Speaker 1: going to have to come up with an argument for
Speaker 1: why her choosing this market, this nonprofit market by either side,
Speaker 1: and this particular one why that is reversible and infects
Speaker 1: the whole rest of the case. So I think, shall
Speaker 1: we say it's not a slam dunk reversal to say
Speaker 1: the least. People are pointing to this decision as proof
Speaker 1: that the antitrust laws need to be updated. Do you agree? Well?
Speaker 1: I do think the anti trust laws that there are
Speaker 1: have to be legislative fixes to some of this, some
Speaker 1: having to do with putting the burden of proof in
Speaker 1: certain cases on defendants. I'm not a d certain what
Speaker 1: the legislative fix would be for this opinion, and the
Speaker 1: courts are generally conservative in the law. But I don't
Speaker 1: read this so much as a judge whose conservative of
Speaker 1: in the law, as a judge who's not quite convinced
Speaker 1: by the case that's put before her. So as a
Speaker 1: general matter, these cases are not faring well at the moment,
Speaker 1: and they're going to take a long time, and this
Speaker 1: is an argument for legislative change, maybe more so the
Speaker 1: f TC's case against Facebook and the coming cases against Google.
Speaker 1: You know, there's a good argument something should be done,
Speaker 1: particularly with regard to the large platforms. But one thing
Speaker 1: this case reminds us is that each of these high
Speaker 1: tech platforms is a little different. They offer somewhat different products,
Speaker 1: they present different competition issues. They're tied together because they're
Speaker 1: such powerful companies and they're so ubiquitous in our lives
Speaker 1: that people are concerned about them. It's always a delight
Speaker 1: to speak to you, Harry, Thanks so much. That's Professor
Speaker 1: Harry First of m y U Law School. An untraventional
Speaker 1: audit of Maricopa County, Arizona, nearly two point one in
Speaker 1: ballots by a company with no experience and election security
Speaker 1: found the hand count of ballots largely matched the county's
Speaker 1: certified election results, with Biden winning an extra three hundred
Speaker 1: sixty votes under the audit ordered by Republican States senators.
Speaker 1: Despite the results, Trump allies pointed to the report's claims
Speaker 1: of malfeasance and errors by election officials, which county officials
Speaker 1: said are easily debunked by anyone familiar with election processes,
Speaker 1: and the stop the Steel movement is going forward with
Speaker 1: election audits in other states, even Texas, which Trump won.
Speaker 1: Joining me is Liz Howard, senior counsel for the Brennan
Speaker 1: Center for Justice. So letz tell us about the Maricopa
Speaker 1: County audit. So, you know, one of the most important
Speaker 1: things from from the report is that it provided additional
Speaker 1: confirmation that Biden did, in fact win the election in
Speaker 1: Maricopa County, you know. But unfortunately it also shows where
Speaker 1: again these actors who have no experience in election administration,
Speaker 1: simply took routine election administration practices and attempted to cast
Speaker 1: what they don't understand as suspicious. And we've seen the
Speaker 1: same captive characters use this playbook over and over and
Speaker 1: over again, and really, you know, they're concerns that this
Speaker 1: is just, you know, an effort to sabotage our election
Speaker 1: officials in our election systems by store loosers. Trump and
Speaker 1: his allies are using the report to say that there
Speaker 1: were problems with the election in Arizona. What are they
Speaker 1: using in the report? So times since one of the
Speaker 1: um things that they're using is they have classified as
Speaker 1: sucicius falsely that there are over two thousand Arizona voters
Speaker 1: who share the same name and birth year. So this
Speaker 1: is actually not suspicious, and they're full reasons that we
Speaker 1: can explain this. So for instance, the birthday paradox, which
Speaker 1: explains that in a group of about forty people, there's
Speaker 1: a nine chance that who will share the same birthday,
Speaker 1: which would just be months and day. Um. And here
Speaker 1: they're talking about people that share the same name in
Speaker 1: birth year. Obviously, especially when they're clustered around the same year.
Speaker 1: You're gonna see where names, you know, rise and fall
Speaker 1: and popularity. So for instance, Jennifer was the most popular
Speaker 1: names for girls born in the nineteen seventies, so there
Speaker 1: were about a hundred and sixty Jennifers born every day
Speaker 1: in the USA between nineteen seventy and nineteen seventy nine, right,
Speaker 1: and so facts like these mean that it's not unexpected
Speaker 1: for there to be multiple voters in Arizona, which has
Speaker 1: over three million voters who share the same name in
Speaker 1: birth year. Do we know how much it cost Arizona
Speaker 1: to do this audit? I think that they are still
Speaker 1: working on total cost estiments. But what we know right
Speaker 1: now is that UM the Senate costs are closing in
Speaker 1: on half a million dollars. And one of the other
Speaker 1: big costs that has been incurred in the Arizona partisan
Speaker 1: review has to do with the costs required to replace
Speaker 1: the voting equipment that was given over to the Cybern
Speaker 1: Engine who again have no experience in election administration and
Speaker 1: are not certified by the federal United States Election Assistance
Speaker 1: commissioned to test voting equipment. The replacement costs for this
Speaker 1: UM for the equipment Americopa County has been estimated at
Speaker 1: two point eight million dollars. And those are just the
Speaker 1: financial costs of this audit, you know, of course, that
Speaker 1: doesn't begin to address the other costs of this audit
Speaker 1: to the election officials who have had to spend you know,
Speaker 1: an inordinate amount of time not only you know, just
Speaker 1: transferring the ballots and the voting equipment um to the Senate,
Speaker 1: but also debunking all of the false information that continues
Speaker 1: to come out from the cyber ninjas and others associated
Speaker 1: again with this partisan review in a Maricopa county. So,
Speaker 1: despite that, Texas is now going to review results from
Speaker 1: four large counties, three one by Biden. But this isn't
Speaker 1: a state that Trump won. What is the governor saying?
Speaker 1: Why are they doing this? So the governor's statement didn't
Speaker 1: include any details. What he said he's going to do
Speaker 1: or that the Secretary of State office is going to
Speaker 1: do is a forensic audit. So first, the secretary of
Speaker 1: State office is vacant right now, there is no Secretary
Speaker 1: of State. Uh. Second, I am unaware of and of
Speaker 1: what exactly a forensic goot it means. And he has
Speaker 1: not provided any details that I'm aware of about what
Speaker 1: exactly that means to him in Texas or for our
Speaker 1: election officials. And then in Wisconsin, is there also an
Speaker 1: audit in Wisconsin schedules? Yet? So again in Wisconsin, the
Speaker 1: election results have already been audited, and the Trump campaign
Speaker 1: already conducted a recount and multiple Wisconsin jurisdiction. The audit
Speaker 1: conducted by election officials and the recount, which was done
Speaker 1: in conjunction with campaign officials and led by election officials,
Speaker 1: both provided confirmation that Biden won the election. Currently, there
Speaker 1: is a legislator kind of established a separate entity led
Speaker 1: by a gentleman named Gableman, that is tasked with reviewing
Speaker 1: the election results. This process has already been marred with
Speaker 1: concerning procedures. For instance, Gablements and out requests for information
Speaker 1: to multiple clerks in the state of Wisconsin, and this
Speaker 1: request was sent to the stand box and otherwise marked
Speaker 1: as a concern in the inboxes of many of the
Speaker 1: election officials because the email address from which it came
Speaker 1: was a Gmail address, and the Gmail address wasn't for
Speaker 1: Mr Gablement. You know, we have serious concerns about this,
Speaker 1: and the process in Wisconsin is also costing Wisconsin tax
Speaker 1: payers thousands and thousands of dollars. Liz, you were talking
Speaker 1: about some of the election machinery having to be decommissioned
Speaker 1: in Arizona. Explain why they have to do that. So
Speaker 1: so far what we've seen in multiple states is right.
Speaker 1: The equipment is handed over to these actors who again
Speaker 1: do not are not federally certified and are not contractors
Speaker 1: of the local election officials, subject to the various restrictions.
Speaker 1: The Secretary of State in Arizona, after she spoke with
Speaker 1: an in coordination with UM, the Cyber Security and Infrastructure
Speaker 1: Security Agency at the US of Apartment of Homeland Security,
Speaker 1: sent a letter to the Americopa County officials saying that
Speaker 1: there was a significant concern because the voting machines have
Speaker 1: been accessed by these people, and the voting machines were
Speaker 1: UM decommissioned. And also you've seen in Pennsylvania where a
Speaker 1: small county provided access to their voting machines to one
Speaker 1: of the vendors that is also associated with the Arizona
Speaker 1: partisan review. The Department of State's office, in conjunction with
Speaker 1: the vendor said you may not use this equipment again.
Speaker 1: And in Pennsylvania are they moving for more audits in Pennsylvania?
Speaker 1: So to be clear, the election results in Pennsylvania have
Speaker 1: already been audited twice. In Pennsylvania, there is a statutory
Speaker 1: um what we think of as a traditional post election
Speaker 1: tabulation audit where election officials in every jurisdiction in Pennsylvania
Speaker 1: a review two thousand or two percent of the ballots
Speaker 1: cast in their jurisdiction. And again, so that initial statutory
Speaker 1: audit provided confirmation that Biden did win the election, and
Speaker 1: UM sixty three out of the sixty seven jurisdictions in
Speaker 1: Pennsylvania also voluntarily participated in a risk lemining audit, and
Speaker 1: that audit again provided further evidence that Biden won the election.
Speaker 1: So this election has already been audited multiple times. There
Speaker 1: is really no need at all for an additional audit
Speaker 1: at this juncture. So when initially UM, a legislator who's
Speaker 1: been a very public stop the steal proponent, sent letters
Speaker 1: to multiple local election officials in the state asking for
Speaker 1: information very similar to what the subpoenas that the Arizona
Speaker 1: legislators used when taking all of this the ballots and
Speaker 1: the voting machines from er Copa. Any officials, the local
Speaker 1: election officials who had seen what had happened in a
Speaker 1: Maricopa county told that legislator that they were not going
Speaker 1: to be responding to his requests. But we've subsequently seen
Speaker 1: is is President Trump publicly identifying the Republican leadership in
Speaker 1: Pennsylvania and demanding that they do something to audit the results.
Speaker 1: So recently they sent a subpoena to the Secretary of
Speaker 1: State asking for UM a variety of information about the election,
Speaker 1: which would include the last four digits of the social
Speaker 1: Security number of of some voters, which has been a
Speaker 1: significant concern, and there is now UM litigation regarding the
Speaker 1: regarding that subpoena. There's been so much reporting about the
Speaker 1: number of legislatures that are changing election laws. Do you
Speaker 1: have numbers on how many states? So generally, right like
Speaker 1: the state legislatures are going to be the ones that
Speaker 1: are determining state law. So law, of course doesn't UM
Speaker 1: cover every situation. So UM, you know, local election officials
Speaker 1: have some discretion. The amount of discretion that they have
Speaker 1: is going to very state the state, which will depend
Speaker 1: upon state law. So we put out the voting laws
Speaker 1: round up periodically, and I think we just had one
Speaker 1: that came out a couple of months ago and that
Speaker 1: does categorize and numbers. Are most of these laws being
Speaker 1: challenged in court. So my colleagues recently filed to in
Speaker 1: Texas regarding UM. The bill that was just passed there,
Speaker 1: which addresses some election administration practices. UM. And of course, uh,
Speaker 1: you know what we just saw in Texas is the
Speaker 1: governor just announced that the Secretary of State is going
Speaker 1: to conduct the friends aboudit in four county. So the
Speaker 1: states that are passing these laws, is it about more
Speaker 1: than access to the ballot? Is it about giving county
Speaker 1: officials control over election results at some point? So I
Speaker 1: think there are a couple of things. So while in
Speaker 1: multiple states we've seen some of the most concerning provisions
Speaker 1: stripped out of the bills that were subsequently signed into law. So,
Speaker 1: for instance, in Texas, one of the only provisions that
Speaker 1: was struck from the voting bill that was recently passed
Speaker 1: would have allowed the state legislature to basically overturn election results.
Speaker 1: It would have been a manner given them the power
Speaker 1: to certify um different election results than what the vote
Speaker 1: counts indicated. And so while it didn't pass this year,
Speaker 1: I have concerns that this is not the last time
Speaker 1: that we're going to see bills like this in exists
Speaker 1: and in other states across the country. Again, you know,
Speaker 1: with what we're seeing across the country, I mean these
Speaker 1: these appear to the efforts to sabotage our election officials, UM,
Speaker 1: and to sabotage our election administration system. You know, we
Speaker 1: we know that. UM. You know, what these UM part
Speaker 1: of the election reviews are actually doing is costing tax
Speaker 1: payers millions of dollars UM. And they are spurring on
Speaker 1: UM death threats and other threats against our election officials.
Speaker 1: And they're wasting the time of our election officials, UM,
Speaker 1: which now in their normal calendar, they would be beginning
Speaker 1: to plan and prepare for elections UM in which are
Speaker 1: which are coming up. Because you know, one of the again,
Speaker 1: one of the most concerning things about this is the
Speaker 1: election that they are attempting to cast doubt on happened
Speaker 1: almost a year ago. UM. Joe Biden was torn in
Speaker 1: in January of this year, you know, nine months ago.
Speaker 1: What they are endeavoring to do is not about increasing
Speaker 1: voter confidence. Thanks Liz. That's Liz Howard, senior counsel for
Speaker 1: the Brennan Center for Justice. And that's it for this
Speaker 1: edition of the Bloomberg Law Show. Remember you can always
Speaker 1: get the latest legal news on our Bloomberg Law Podcast.
Speaker 1: You can find them on Apple Podcasts. Spotify and at
Speaker 1: www dot Bloomberg dot com. Slash podcast slash Law, I'm
Speaker 1: Jun Brosso. You're listening to Boomla