WEBVTT - Immigration Chaos at the Border 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.640 --> 0:00:13.200 Let me be clear, the Department does not tolerate any 0:00:13.240 --> 0:00:18.040 mistreatment of any migrant and will not tolerate any violation 0:00:18.120 --> 0:00:23.200 of its values, principles and ethics. Deputy of Homeland Security 0:00:23.320 --> 0:00:28.240 Secretary Alejandro Majorcis said horse patrols have been suspended and 0:00:28.280 --> 0:00:32.320 an investigation is underway after footage emerged of border patrol 0:00:32.440 --> 0:00:36.159 agents using horses to block and move migrants on the 0:00:36.200 --> 0:00:40.080 banks of the Rio Grande. A massive migrant camp sprouted 0:00:40.080 --> 0:00:43.080 in the town of Del Rido, Texas, speaking at about 0:00:43.120 --> 0:00:46.640 thirty thousand people, mainly Haitians, many of whom have been 0:00:46.640 --> 0:00:50.239 in Mexico or other Latin American countries for years. The 0:00:50.320 --> 0:00:54.000 camp has now been cleared. Some migrants have been deported, 0:00:54.040 --> 0:00:56.560 others have been allowed to stay in the United States, 0:00:56.640 --> 0:01:00.320 at least temporarily, to pursue their claims for asylum. However, 0:01:00.360 --> 0:01:04.080 the controversy over the treatment of the Haitian migrants remains. 0:01:04.720 --> 0:01:07.920 Joining me Is Leon Fresco, a partnered Hollanden Night, a 0:01:07.959 --> 0:01:11.720 former immigration official in the Obama administration. Leon there's been 0:01:11.800 --> 0:01:16.440 outrage over the conduct of these border patrol agents. So 0:01:16.640 --> 0:01:18.679 it's clear that what they were doing was they were 0:01:18.680 --> 0:01:22.319 taking the reins from the horses and using them to 0:01:22.520 --> 0:01:26.400 try to restrain people trying to come into the country 0:01:26.400 --> 0:01:29.600 and also to push people back into Haiti. But the 0:01:29.720 --> 0:01:33.560 point is, regardless of what you're doing, a the opticks 0:01:33.560 --> 0:01:37.920 of the situation are unfortunate. But all of this is 0:01:37.920 --> 0:01:41.000 a result of a lack of planning on how to 0:01:41.120 --> 0:01:46.200 address foreseeable surges into the southern border. And so this 0:01:46.240 --> 0:01:48.280 is where I have a bit of frustration because I 0:01:48.320 --> 0:01:51.240 had a lot of sympathy towards the Binden administration, but 0:01:51.440 --> 0:01:56.760 this is now October basically, and you could have taken 0:01:57.160 --> 0:02:01.200 the time period that existed due to the COVID crisis 0:02:01.240 --> 0:02:03.560 and due to the fact that when you inherited the 0:02:03.600 --> 0:02:07.240 border it was a closed border and say to the 0:02:07.280 --> 0:02:11.280 immigration community, we need a few months to build the 0:02:11.360 --> 0:02:15.360 plane first before we fly it. And the problem is 0:02:15.760 --> 0:02:18.680 you haven't had that. You had them trying to hold 0:02:18.680 --> 0:02:22.760 times to simultaneously fly the plane and build it, and 0:02:22.800 --> 0:02:28.160 so you've never put the capacity there to have expedited processing, 0:02:28.639 --> 0:02:32.040 to have sent adjudication of asylum, so that you would 0:02:32.040 --> 0:02:34.120 never get to a position where you would have thousands 0:02:34.120 --> 0:02:38.240 of people surging in any one location. Now we've heard 0:02:38.280 --> 0:02:42.400 a million times and Secretary Majorcas said this, the immigration 0:02:42.480 --> 0:02:46.120 system is broken. But do they have the ability to 0:02:46.280 --> 0:02:49.760 do what you just suggested within the parameters of what 0:02:49.919 --> 0:02:53.440 they're working with. Well, the point is you never have 0:02:53.600 --> 0:02:57.680 the ability to do it instantaneously, but you have the 0:02:57.720 --> 0:03:02.720 ability if you invest in a momentary pause to build 0:03:02.720 --> 0:03:06.560 a system with your allies in the region that actually 0:03:06.639 --> 0:03:11.240 has regional processing centers all around the region where people 0:03:11.280 --> 0:03:15.959 can go and asked for asylum or refugee status. And 0:03:16.000 --> 0:03:18.840 then if you try to get around them and go 0:03:19.080 --> 0:03:21.840 to the southern border, you would tell people know there's 0:03:21.840 --> 0:03:25.119 no entrance. That's a lot here. You're being excluded from 0:03:25.160 --> 0:03:27.919 the country because you have to apply for asylum through 0:03:28.000 --> 0:03:32.239 these regional processing centers in Mexico and in Central America. 0:03:32.360 --> 0:03:36.280 There was a way to do this, and unfortunately this 0:03:36.360 --> 0:03:39.040 time that could have been used during the COVID era 0:03:39.160 --> 0:03:41.800 to say the people, look, we can't allow people to 0:03:41.840 --> 0:03:44.080 come in through the southern border. During the COVID area, 0:03:44.680 --> 0:03:47.360 we weren't allowing people to do this viasa the Europe 0:03:47.520 --> 0:03:50.880 until November. You could have used that same time period 0:03:50.920 --> 0:03:55.440 that we had with Europe and built a very solid 0:03:55.480 --> 0:03:59.360 refugee system the process people abroad, and that was fair 0:03:59.680 --> 0:04:02.720 and actually had a robust number of people that you 0:04:02.880 --> 0:04:05.720 let in. You could have done that, but that wasn't done. 0:04:06.120 --> 0:04:11.520 Maiorcas was asked if the administration policies are encouraging more immigration. 0:04:11.840 --> 0:04:14.360 Is that true to a certain extent. Are some of 0:04:14.400 --> 0:04:19.280 the migrants coming here because Biden is in office. Well, 0:04:19.320 --> 0:04:23.880 there's always a factor here that's sensitive to what people 0:04:23.920 --> 0:04:26.640 are hearing, and so what people are hearing sometimes can 0:04:26.640 --> 0:04:29.880 be true, and what people are hearing can sometimes be false. 0:04:30.400 --> 0:04:34.400 And so you can't control if smugglers are telling people 0:04:34.560 --> 0:04:37.920 false narratives about coming to the United States. But in 0:04:37.960 --> 0:04:41.119 this case, the narrative had some truth to it because 0:04:41.160 --> 0:04:45.600 you had, For in the Haitian example, the temporary protective 0:04:45.600 --> 0:04:48.880 status for Haitians in the United States was extended to 0:04:48.960 --> 0:04:52.240 a larger group of Haitians than had already had that status, 0:04:52.240 --> 0:04:54.960 and I agreed with doing that. The point is, if 0:04:54.960 --> 0:04:58.480 you're going to do that, and then you have to say, well, 0:04:58.960 --> 0:05:02.320 the foreseeable outcome of that is there's going to be 0:05:02.400 --> 0:05:06.120 a desire from other Haitians to want to come into 0:05:06.120 --> 0:05:09.159 the United States to see a Vaguan take advance of 0:05:09.200 --> 0:05:12.640 both this program or maybe a later extension that would 0:05:12.680 --> 0:05:16.560 happen for additional Asians. And so at that point, that's 0:05:16.640 --> 0:05:20.120 where you have to say, these things don't happen in 0:05:20.120 --> 0:05:24.440 a vacuum. We have to have a system that is compassionate, 0:05:24.720 --> 0:05:28.120 but also it is stringent for people who don't want 0:05:28.160 --> 0:05:32.400 to use the vehicles of compassion. And that's the place 0:05:32.440 --> 0:05:35.320 where I think there will be an equilibrium on this. 0:05:35.440 --> 0:05:39.000 You're starting to see it, but the equilibrium is going 0:05:39.040 --> 0:05:41.560 to take some sing to develop. Man, what do you 0:05:41.600 --> 0:05:45.159 think is likely to happen with the investigation into the 0:05:45.200 --> 0:05:49.240 border agents. Well, the point is this, whenever there's any 0:05:49.360 --> 0:05:52.200 use of force, which is essentially what this is, you 0:05:52.240 --> 0:05:54.640 have to go through the protocols of a use and 0:05:54.720 --> 0:05:58.159 force investigation and determine whether the use of force was 0:05:58.240 --> 0:06:01.719 justified or not in a picular situation. And the problem 0:06:01.839 --> 0:06:05.560 with a lot of these video footages if you don't 0:06:05.560 --> 0:06:08.640 get the whole context of what was happening before, what 0:06:08.720 --> 0:06:12.880 was happening after, nobody has any idea. Now, are the 0:06:12.960 --> 0:06:16.400 videos that you saw in the sharp context that you 0:06:16.480 --> 0:06:19.040 saw them in pleasant videos to look at. No, they 0:06:19.040 --> 0:06:22.920 are not. But until you have all of the information 0:06:22.960 --> 0:06:25.200 and all of the facts, it's hard to make a 0:06:25.240 --> 0:06:29.760 determination that someone acted without cause or acted in the 0:06:29.760 --> 0:06:32.440 wrong way because you don't know what they're trained to 0:06:32.480 --> 0:06:35.279 do in that situation. You don't know what was happening, 0:06:35.279 --> 0:06:38.320 you don't know what they did in the reality the 0:06:38.360 --> 0:06:42.200 minutes before that, and so there's nothing that anybody can 0:06:42.279 --> 0:06:46.520 say commenting on it that takes the place of an investigation. 0:06:46.680 --> 0:06:49.560 That's what's required under the law, and so that's the 0:06:49.640 --> 0:06:52.360 new pace that's that's necessary here. As far as the 0:06:52.440 --> 0:06:55.160 numbers we've been given on the Haitians, about twelve thousand, 0:06:55.240 --> 0:06:57.800 four hundred were released into the US waiting to have 0:06:57.880 --> 0:07:02.080 their asylum cases heard by Immigrant Asian judges, five thousand 0:07:02.160 --> 0:07:07.960 processed by DHS, three thousand in detention, eight thousand returned 0:07:08.000 --> 0:07:12.840 to Mexico, and only about hundred were on flights to Haiti. 0:07:13.280 --> 0:07:16.000 So my first question is what happened to the Biden 0:07:16.040 --> 0:07:20.800 administration using Title forty two to turn the Haitians away. 0:07:20.920 --> 0:07:23.640 Did they decide it wasn't a good idea. I think 0:07:23.640 --> 0:07:26.880 they've been pretty consistent about the fact that they want 0:07:26.920 --> 0:07:31.680 to use Title forty two in situations that it's single adults. 0:07:31.720 --> 0:07:36.120 In situations where there are families or unaccompanied minors, they 0:07:36.120 --> 0:07:39.280 are not wanting to use this title forty two authorities. 0:07:39.680 --> 0:07:42.960 And so the reason you saw these dis joints that 0:07:43.040 --> 0:07:45.400 outcomes is because there were some number of people in 0:07:45.480 --> 0:07:47.840 families and they didn't want to use the title forty 0:07:47.880 --> 0:07:51.360 two and families, and even with some single adults, you 0:07:51.480 --> 0:07:54.440 can't use Title forty two if they have absolutely no 0:07:54.600 --> 0:07:59.000 paperwork and Mexico isn't willing to accept them. So you 0:07:59.120 --> 0:08:01.960 have to have some plan for once you send them 0:08:02.000 --> 0:08:05.280 to Mexico, what's going to happen to them, because Mexico 0:08:05.480 --> 0:08:09.080 is also a partner in the Title forty two efforts. 0:08:09.240 --> 0:08:11.320 And so it's a lot easier to use Cital forty 0:08:11.320 --> 0:08:16.000 two with mexict maginals or even with Central American nationals 0:08:16.000 --> 0:08:20.600 that Mexico can have a plan for wek creating back 0:08:20.640 --> 0:08:23.680 to their neighboring country. But with Haitians, it's a lot 0:08:23.720 --> 0:08:27.200 more complicated to use Cital forty two because the Haitian 0:08:27.280 --> 0:08:31.240 doesn't belong either in Mexico or Central America or the 0:08:31.320 --> 0:08:34.200 United States or anywhere else they belong, either in Haiti 0:08:34.600 --> 0:08:37.160 or some of them had gotten some permission to reside 0:08:37.440 --> 0:08:41.000 in other parts of South America, and so Mexico would say, 0:08:41.000 --> 0:08:43.440 why are you bringing these individuals here? They have no 0:08:43.640 --> 0:08:46.840 jurisdiction to be here, and so that's why you saw 0:08:46.880 --> 0:08:51.000 these disjointed outcome, he said. The Biden administration doesn't like 0:08:51.120 --> 0:08:54.480 to use Title forty two to expel families, but they're 0:08:54.480 --> 0:08:59.400 appealing a judge's order that forbids them from expelling migrant 0:08:59.440 --> 0:09:03.640 family under Title forty two. Yes, and I think there's 0:09:03.640 --> 0:09:06.920 two issues there. Number One, there's the issue of having 0:09:07.000 --> 0:09:10.160 the tool in the tool box, and so they definitely 0:09:10.200 --> 0:09:12.559 believe that they need to have the tool in the 0:09:12.559 --> 0:09:17.320 tool box. But simultaneously, while they're in this litigation, they 0:09:17.400 --> 0:09:21.720 don't want to have thousands of families being excluded under 0:09:21.760 --> 0:09:25.760 Title forty two because a that weakens their litigation position 0:09:26.120 --> 0:09:29.199 that they're only using this tool when it's absolutely needed. 0:09:29.800 --> 0:09:34.439 But be they don't actually have a lot of desire 0:09:34.760 --> 0:09:39.120 to use this tool for families, because there is some 0:09:39.280 --> 0:09:43.200 sympathy for these children, especially sometimes when the children are 0:09:43.320 --> 0:09:46.200 vulnerable ages and you're seeing them at the order and 0:09:46.280 --> 0:09:49.679 you're seeing very sympathetic cases. It's hard to sympally just 0:09:50.080 --> 0:09:52.600 turn those people back and say good luck to you. 0:09:52.600 --> 0:09:56.120 You know, never come here, and whatever happens to you happen. 0:09:56.559 --> 0:09:59.240 And so you have those factors. You have the sympathy factor, 0:09:59.600 --> 0:10:02.439 you have fact that in the litigation you're trying to 0:10:02.520 --> 0:10:05.560 keep the tool alive for when it's really needed. And 0:10:05.679 --> 0:10:08.640 also though you don't want to have thousands and thousands 0:10:08.640 --> 0:10:10.640 that in the cases, because it makes it a lot 0:10:10.640 --> 0:10:13.240 easier for the platance to win than if you say 0:10:13.320 --> 0:10:17.440 you're using it only for cases where it's absolutely needed. Now, 0:10:17.559 --> 0:10:21.120 a notice to appear is typically the first step in 0:10:21.160 --> 0:10:25.520 the deportation process, but the buying administration is handing out 0:10:25.679 --> 0:10:30.600 notices to report. What's the difference. So we talked about 0:10:30.640 --> 0:10:34.440 this in the past. There's been this litigation about that 0:10:34.559 --> 0:10:39.480 your removal proceeding is totally nullified under the law. Now, 0:10:39.520 --> 0:10:42.280 the Supreme Court has said this twice if you get 0:10:42.320 --> 0:10:44.960 a notice to appear that doesn't have the exact time 0:10:45.040 --> 0:10:49.720 they place and location of the hearing. And so what 0:10:49.800 --> 0:10:52.280 happens is when you're having thousands and thousands of people 0:10:52.360 --> 0:10:54.839 and you have no idea where the heck these folks 0:10:54.880 --> 0:10:58.440 are going to how can you say, appear at the 0:10:58.559 --> 0:11:02.360 U S Immigration Court in Chicago on October fourth at 0:11:02.520 --> 0:11:05.760 at seven thirty a m. You don't know. It's it's 0:11:05.800 --> 0:11:09.080 way too complicated. And so what they want to do 0:11:09.120 --> 0:11:11.960 is try to get people to do an ICE check 0:11:12.040 --> 0:11:16.240 in and only then issue the notice to appear that 0:11:16.360 --> 0:11:19.439 has the data that's needed. Because if you issue the 0:11:19.559 --> 0:11:22.400 data that's needs and usually the notice appear without the 0:11:22.480 --> 0:11:25.440 data that's needed, and then the person either misses the 0:11:25.480 --> 0:11:28.200 court date or never shows up or anything, then you 0:11:28.280 --> 0:11:33.240 actually can't move forward with their removal because everything was void. 0:11:33.320 --> 0:11:36.000 You never gave them the right process at the beginning. 0:11:36.280 --> 0:11:39.719 So what they're trying to do is a range of 0:11:39.880 --> 0:11:42.360 situation where the person doesn't show up to their ICE 0:11:42.440 --> 0:11:45.800 check in, they can be detained and then you can 0:11:45.840 --> 0:11:49.240 give them their notice to appear with their actual right 0:11:49.400 --> 0:11:52.560 hearing day. And actually what you would do if you 0:11:52.559 --> 0:11:55.079 would do it in the detention facility itself, as you 0:11:55.120 --> 0:11:58.280 would say, here's your first hearing, and once you've given 0:11:58.280 --> 0:12:01.760 them their first hearing from them on, you've complied with 0:12:01.840 --> 0:12:05.319 the requirements under the law. The DHS Secretary also spoke 0:12:05.360 --> 0:12:09.800 about the conditions for asylum, which we've talked about many times, 0:12:09.840 --> 0:12:12.679 and it seems that when you you listen to the 0:12:12.720 --> 0:12:16.440 stories that a lot of the Haitians are claiming asylum 0:12:16.559 --> 0:12:21.520 for economic reasons, would economic reasons ever get you asylum? 0:12:21.840 --> 0:12:26.360 Purely economic deprivation is not sufficient to get asylum. Now, 0:12:26.400 --> 0:12:29.760 you can have a situation where if what you're suffering 0:12:29.880 --> 0:12:33.920 is pure economic deprivation because of your political opinion. So 0:12:34.000 --> 0:12:37.760 let's say they say people who supported this presidential candidate 0:12:38.040 --> 0:12:40.920 will never be allowed to get a job or access 0:12:40.960 --> 0:12:44.960 to banking, or access to food or anything else. Even 0:12:45.000 --> 0:12:48.160 if you're not tortured or not placed in jail or anything, 0:12:48.520 --> 0:12:52.920 that can be asylum. But if there's general economic deprivation 0:12:53.360 --> 0:12:58.360 countrywide and it's not based specifically on your political opinion 0:12:58.520 --> 0:13:01.640 or your social group, or your religions, or your race 0:13:01.840 --> 0:13:04.760 or your national origin, then that's never going to be 0:13:04.800 --> 0:13:08.800 sufficient to get asylum. Which is why many people who 0:13:08.800 --> 0:13:11.560 apply for asylum don't end up qualifying, is because you 0:13:11.640 --> 0:13:14.520 have to fit that very narrow group of people of 0:13:14.600 --> 0:13:18.160 why they're suffering. Some people are predicting that this is 0:13:18.200 --> 0:13:21.240 going to happen at the border again, is the Biden 0:13:21.240 --> 0:13:27.199 administration doing anything right now to prevent this from happening again. Well, 0:13:27.240 --> 0:13:30.360 the only thing that's happening right now under the Biden 0:13:30.360 --> 0:13:34.679 administration is they're trying to get a new regulation out 0:13:35.520 --> 0:13:41.960 that would make meritorious asylum claims easier to grant right 0:13:41.960 --> 0:13:46.360 there at the border, so that the less meritorious asylum 0:13:46.360 --> 0:13:50.440 claims are placed into a smaller pile of cases. The 0:13:50.600 --> 0:13:54.120 problem is at the end right now, the current backlog 0:13:54.200 --> 0:13:57.319 is in the millions, and no matter who you're placing 0:13:57.360 --> 0:14:00.480 in this quote unquote smaller piles, and no matter who 0:14:00.520 --> 0:14:04.080 you're prioritizing, you're seeing this already, for instance, in Boston 0:14:04.160 --> 0:14:09.120 and in Los Angeles, these priority dockets quote unquote still 0:14:09.200 --> 0:14:13.960 have dred people in cases for one judge, and so 0:14:14.080 --> 0:14:16.559 that judgesn't go to get around to doing all of 0:14:16.600 --> 0:14:20.280 those fifties hundred cases anytime soon. And so even if 0:14:20.320 --> 0:14:23.000 you said, well, the goal was to get those done 0:14:23.000 --> 0:14:25.440 in nine months, it's clear you're not going to get 0:14:25.440 --> 0:14:28.120 those done in nine months. And so I just think 0:14:28.160 --> 0:14:31.760 at some point we have to grapple with a system. 0:14:31.920 --> 0:14:35.280 And neither side has done this, neither Trump nor Biden. 0:14:35.400 --> 0:14:38.880 Because Trump in the end, didn't have the goal of 0:14:39.640 --> 0:14:44.920 one thing, the meritorious cases in the United States. Their 0:14:45.040 --> 0:14:48.480 approach was they didn't want any cases in the United States, 0:14:48.520 --> 0:14:53.440 and the Biden administration hasn't wanted to be perceived as 0:14:53.560 --> 0:14:57.480 overly insensitive to these cases, which is also a valid goal. 0:14:57.560 --> 0:14:59.720 So both goals are valid depending on how you look 0:14:59.760 --> 0:15:01.960 at it. But I just think we need to get 0:15:02.000 --> 0:15:05.360 to an approach finally at some point where we have 0:15:05.440 --> 0:15:10.360 regional processing centers in Mexico in Central America where people 0:15:10.400 --> 0:15:13.800 can go and make those claims and actually have assistance 0:15:14.320 --> 0:15:16.520 making those claims so they don't do it on their own. 0:15:16.560 --> 0:15:19.240 They would have people from our government as that to 0:15:19.320 --> 0:15:23.320 make these claims, and then those cases get adjudicated and 0:15:23.360 --> 0:15:25.960 you either use that process and you get into the 0:15:26.040 --> 0:15:28.720 United States, or if you don't use that process, you 0:15:28.760 --> 0:15:32.480 are automatically excluded from the United States. And I think 0:15:32.560 --> 0:15:35.720 that's the fairest thing we can do for this hemisphere, 0:15:36.320 --> 0:15:39.200 is to give people with fair asylum claims a chance 0:15:39.240 --> 0:15:41.440 to do it. But it doesn't have to be at 0:15:41.440 --> 0:15:44.480 our southern border. And so this is what continues to 0:15:44.640 --> 0:15:49.000 be the complicating practicer here. So the governor of Texas 0:15:49.080 --> 0:15:54.760 has said that they're going to start arresting people for trespassing. 0:15:55.240 --> 0:15:57.520 Is that the order that's being a challenge by the 0:15:57.520 --> 0:16:02.880 Biden administration. Well, I'm first of all, that's the provision 0:16:02.960 --> 0:16:06.840 that Jan Brewer in twelves during the Arizona and Law. 0:16:07.000 --> 0:16:09.800 At all of those three court cases, she was trying 0:16:09.840 --> 0:16:12.520 to do the same concept basically, which was to arrest 0:16:13.080 --> 0:16:16.760 undocumented people for dress passing in Arizona. But yeah, Blue 0:16:16.840 --> 0:16:20.240 being salad. It's one of many things being valid by 0:16:20.320 --> 0:16:25.280 the by the administration. But the interesting question is they're 0:16:25.320 --> 0:16:28.680 trying to pee up an issue that if you look 0:16:28.680 --> 0:16:31.960 at who decided the Arizona decision, that was the six 0:16:32.120 --> 0:16:38.240 three decisions, but the six justices who rules for the case, 0:16:38.840 --> 0:16:44.480 the only ones who are left are Robert Prota, Major Kagan, 0:16:45.320 --> 0:16:49.880 and and Roberts. And so you have five justices who 0:16:49.920 --> 0:16:53.720 either ruled on behalf of Arizona or are news to 0:16:53.760 --> 0:16:57.000 the court, which is having a Coney, Barrett and Dorsage. 0:16:57.080 --> 0:17:00.360 And so the question is with those five justices end 0:17:00.440 --> 0:17:04.840 up overturning the Arizona And so it's possible that with 0:17:05.080 --> 0:17:09.920 these five justices who are not on the record or 0:17:10.000 --> 0:17:12.760 on the record on the side of state enforcement of 0:17:12.800 --> 0:17:17.320 immigration law, they may decide that the Arizona decision should 0:17:17.320 --> 0:17:22.280 be overturned and that state can start doing immigration enforcements. 0:17:22.720 --> 0:17:26.240 That would be similar to, for instance, states enforcing drug laws. 0:17:26.240 --> 0:17:30.679 The federal government enforces drug laws and state enforced drug laws, 0:17:30.880 --> 0:17:33.879 and so you might end up actually seeing that. And 0:17:33.960 --> 0:17:36.880 I think that's not necessarily going to be decided this week, 0:17:37.280 --> 0:17:39.919 but it's definitely something to be looking for during the 0:17:39.920 --> 0:17:43.120 course of the Biden presidency. Okay, so now I want 0:17:43.160 --> 0:17:47.200 to talk about the Biden administration released its proposed measure 0:17:47.480 --> 0:17:52.360 to preserve and fortify DACO. Well, one of the criticisms 0:17:52.400 --> 0:17:55.160 that has been given in this litigation about the legality 0:17:55.160 --> 0:17:58.480 of DACCA was that DOCCA was not simply an issue 0:17:58.480 --> 0:18:04.160 of prosecutorial disgray shion, but was actually a program. And 0:18:04.160 --> 0:18:06.040 why it was with a program. It was a program 0:18:06.080 --> 0:18:08.800 because it had requirements had to be under succeed, you 0:18:08.840 --> 0:18:13.120 had to arrive priored at twelve, you had to have 0:18:13.600 --> 0:18:17.040 not committed certain crimes. And so once you start putting 0:18:17.080 --> 0:18:21.760 criteria on these lists of prosecutorial discretion, and it's not 0:18:21.960 --> 0:18:25.280 just a case by case decision, but it's actually based 0:18:25.320 --> 0:18:28.280 on criteria that that needed to be something that was 0:18:28.320 --> 0:18:31.440 done through formal rulemaking. And so one of the things 0:18:31.440 --> 0:18:34.480 that the court had said was that Doctor was illegal 0:18:34.560 --> 0:18:38.880 because formal rulemaking has not been issued to actually implement 0:18:38.960 --> 0:18:42.400 the program. And so now the Biden administration has finally, 0:18:42.440 --> 0:18:46.280 after all of these years, decided to implement the formal 0:18:46.359 --> 0:18:49.720 rulemaking for the program. Now that will shield it from 0:18:49.840 --> 0:18:53.400 that attack. But then there will be the ultimate question, 0:18:53.520 --> 0:18:55.840 which is the one that we've been at this for 0:18:55.920 --> 0:19:00.119 ten years and nobody's ever ruled that definitively, which is 0:19:00.119 --> 0:19:04.520 is data illegal? I mean, tim a president actually healed 0:19:04.920 --> 0:19:08.920 a certain segment of the population from removal and then 0:19:09.000 --> 0:19:12.080 actually allow them to work in the United States. That's 0:19:12.119 --> 0:19:16.320 the question that hasn't been decided yet, and so that's 0:19:16.359 --> 0:19:19.159 the question that will ultimately be set up to the 0:19:19.280 --> 0:19:22.160 Supreme Court as a result of this regulation. So they'll 0:19:22.160 --> 0:19:25.359 be able to get all of the procedural reasons for 0:19:25.440 --> 0:19:28.960 invalidating Doctor out of the way, and we will now 0:19:29.040 --> 0:19:34.359 be finally peeing up this issue of is DOCTA at 0:19:34.400 --> 0:19:36.679 the end of the day, something a president can or 0:19:36.760 --> 0:19:42.000 can't move. So this rule will will answer the concerns 0:19:42.040 --> 0:19:46.120 that that Texas judge had. Yes, it will. I will 0:19:46.200 --> 0:19:51.240 answer the procedural complaints that the Texas judge had, which 0:19:51.240 --> 0:19:55.720 is that the proper procedures were not followed in implementing DOCTA, 0:19:55.840 --> 0:19:59.439 that there wasn't the formal rulemaking, and then notice and comment. 0:20:00.040 --> 0:20:02.000 People can comment on the rule and say what they 0:20:02.040 --> 0:20:04.800 don't like, and then you issue a final rule that's 0:20:04.840 --> 0:20:06.800 going to take care of all of that, but it 0:20:06.880 --> 0:20:09.199 won't take care of the judge's decision that in the 0:20:09.320 --> 0:20:12.120 end DOCCA is illegal, that the laws have not forbid 0:20:12.640 --> 0:20:16.200 the shielding of a certain group from deportation, followed by 0:20:16.320 --> 0:20:19.639 then not just the shielding, but the implementation of work 0:20:19.760 --> 0:20:23.720 rights and rights to travel abroad from this group. And 0:20:23.760 --> 0:20:28.040 so with that that will finally be the substantive legal 0:20:28.080 --> 0:20:31.439 issue beat up to the Supreme Court is whether DOCA 0:20:31.640 --> 0:20:35.600 is actually legal or illegal. And so that's the issue 0:20:35.640 --> 0:20:39.080 that finally no court is grappled with. Finally the Supreme 0:20:39.080 --> 0:20:41.840 Court wild grapple with it at some point. That's Leon 0:20:41.880 --> 0:20:46.320 Fresco of Hondon Knight. We have a lot to talk 0:20:46.359 --> 0:20:51.480 about today. Let's get started with Apple TV plus One 0:20:51.520 --> 0:20:54.840 thing CEO Tim Cook did not talk about the Apple 0:20:54.920 --> 0:20:57.679 event was the injunction that will go into effect on 0:20:57.720 --> 0:21:01.480 December nine, requiring Apple to make most significant change to 0:21:01.560 --> 0:21:05.280 its app store business model since launching. In the antitrust 0:21:05.359 --> 0:21:08.480 lawsuit brought by Epic Games, the judge ruled that Apple 0:21:08.560 --> 0:21:12.240 must give developers the option of bypassing its commission on 0:21:12.400 --> 0:21:15.520 in app purchases, a cut that runs as high as 0:21:15.560 --> 0:21:18.560 thirty percent and could cost the tech giant a few 0:21:18.600 --> 0:21:23.080 billion dollars annually. Joining me is antitrust law expert Harry First, 0:21:23.160 --> 0:21:26.119 a professor at and Why You Law School? Harry. There 0:21:26.200 --> 0:21:28.679 was a lot of talk after the decision about the 0:21:28.760 --> 0:21:31.359 hit to Apple, but it was Epic that filed for 0:21:31.400 --> 0:21:35.320 an appeal first. So who won this case? It was 0:21:35.640 --> 0:21:39.080 pretty much a loss for Epic and a lot of 0:21:39.160 --> 0:21:42.800 gain for Apple and your right. Epic filed the appeal 0:21:42.960 --> 0:21:46.600 because they want to go further than the judges somewhat 0:21:46.680 --> 0:21:51.320 limited but very interesting injunction which will stop to some 0:21:51.400 --> 0:21:56.000 degree the requirement that you can't steer people to less 0:21:56.040 --> 0:22:00.159 expensive payment system. Did the judges ruling leave enough m 0:22:00.240 --> 0:22:03.360 for Apple to try to keep its app store revenue 0:22:03.440 --> 0:22:07.119 stream largely intact? For example, it could still collect a 0:22:07.160 --> 0:22:11.840 commission of up to despite the ruling. Yeah, there's nothing 0:22:11.880 --> 0:22:15.640 that prevents Apple from collecting whatever it can collect. And 0:22:15.880 --> 0:22:18.680 the mechanism that Apple chose, which is to run it 0:22:18.720 --> 0:22:22.040 through its own payment system, is smart from Apple's point 0:22:22.040 --> 0:22:24.280 of view. As she pointed out, it makes sure that 0:22:24.359 --> 0:22:28.200 they track all the revenue that's generated through the app store. 0:22:28.240 --> 0:22:32.320 Everything that flows through they get, and it doesn't say 0:22:32.320 --> 0:22:37.960 they can't charge royalties to app developers in a different way, 0:22:38.520 --> 0:22:42.160 using different formulas. You know, any party that's trying to 0:22:42.320 --> 0:22:45.320 do something like what Apple's doing has to figure out 0:22:45.720 --> 0:22:48.640 a way that will allow them to make the charges 0:22:48.760 --> 0:22:51.960 and not too many people will escape. So it's not 0:22:52.080 --> 0:22:55.120 clear even at this point how many people will escape 0:22:55.440 --> 0:22:59.120 or whether consumers will bother to choose, because they still 0:22:59.200 --> 0:23:02.080 have to have the option of paying through, you know, 0:23:02.119 --> 0:23:05.280 an in app purchase, and I don't play video games, 0:23:05.280 --> 0:23:07.280 and my guests, as consumers in the middle of the 0:23:07.400 --> 0:23:10.240 video game, would prefer to click, then have to do 0:23:10.280 --> 0:23:14.320 two clicks, which seems to be an impossible burden for people. 0:23:14.720 --> 0:23:19.200 So it may not siphon off that much revenue. Epic 0:23:19.280 --> 0:23:22.920 will have to give some sort of incentive to gamers 0:23:22.960 --> 0:23:25.480 to do this to, you know, make the out of 0:23:25.520 --> 0:23:29.639 app purchase of longer life for a wand or whatever 0:23:29.680 --> 0:23:32.560 in the world people purchase for so much money, apparently 0:23:33.000 --> 0:23:36.800 on the video games they own, like Fortnite. So not 0:23:37.000 --> 0:23:39.879 clear how much of a difference it will make, and 0:23:39.920 --> 0:23:42.320 if it does start to make a revenue stream difference, 0:23:42.440 --> 0:23:46.480 certainly Apple configure out a different approach. The judges order 0:23:46.560 --> 0:23:50.239 doesn't say that Apple has to keep Fortnite on the 0:23:50.240 --> 0:23:53.679 App Store, so they could say, you know, unless you 0:23:53.760 --> 0:23:56.920 pass X number of dollars, you're out of here. And 0:23:57.040 --> 0:23:59.640 I don't see anything in the order that she entered 0:23:59.800 --> 0:24:03.680 at forbids that, and in the main part of federal charges. 0:24:04.160 --> 0:24:06.720 It seems to me it's pretty clear that they could 0:24:06.760 --> 0:24:09.720 do that. So a lot yet to be written. And 0:24:09.800 --> 0:24:12.040 of course this is just one case. You know, there 0:24:12.040 --> 0:24:16.360 are cases elsewhere, and it's unclear what the federal government 0:24:16.520 --> 0:24:18.800 might do. This maybe a little bit of a roadmap 0:24:18.800 --> 0:24:21.520 in certain ways for the federal government. And of course 0:24:21.560 --> 0:24:24.640 there are a non US government's Koreast in the process 0:24:24.680 --> 0:24:28.280 of passing a statute dealing with app stores in the 0:24:28.400 --> 0:24:32.760