Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. On Friday, the
Speaker 1: California federal judge presiding over the reunification of immigrant children
Speaker 1: separated from their parents called the government efforts unacceptable. Earlier
Speaker 1: in the weeks, Senate Judiciary Committee Chairman Chuck Grassley also
Speaker 1: criticized the administration's policies. However, like many well intentioned policies UH,
Speaker 1: these UH were on there were unintended consequences. And in
Speaker 1: another federal courtroom on Friday, on the opposite side of
Speaker 1: the country, a judge upheld his order that the DOCCA
Speaker 1: program should be fully restored, giving the administration twenty days
Speaker 1: to appeal. Joining me is David Beer, immigration policy analyst
Speaker 1: at the Cato Institute. David turning to the federal court
Speaker 1: room in d C. Judge John Bates gave the Trump
Speaker 1: administration a second chance to show him there was a
Speaker 1: legitimate reason to rescind DOCCA. Tell us what he asked
Speaker 1: the administration and what the administration provided. Well, when the
Speaker 1: administration first rescinded DOCCA for the Dreamers, who immigrants who
Speaker 1: entered the United States as children, Uh, they did not
Speaker 1: explain why they believed that that was a proper decision
Speaker 1: for the government to be taking. And so what the
Speaker 1: court found was that this decision was arbitrary and capricius
Speaker 1: did not have a basis in law, and the judge
Speaker 1: required the administration to reissue that memo rescinding that policy
Speaker 1: or provide the court with a valid legal reasons why
Speaker 1: it believed that that policy was unlawful. Uh, the government
Speaker 1: really failed to do that, And the decision um from
Speaker 1: the judge really lays out in detail why the court
Speaker 1: felt that the Department of Homeland Security has not shown
Speaker 1: why they are taking this action. So the judge didn't
Speaker 1: say that the DHS secretary didn't have authority to rescind
Speaker 1: the program. So if the Trump administration, which is expected
Speaker 1: to appeal, can come up with a better explanation, with
Speaker 1: a good explanation, is it possible that the judge will
Speaker 1: rescind the order or that the appeals Court will Well,
Speaker 1: at this point, really the Appeals Court is going to
Speaker 1: be looking at whether or not the judge has abused
Speaker 1: his discretion in this case too basically enjoin the memos
Speaker 1: that the Department of Homeland Security has put out, so
Speaker 1: that they're really going to be ruling on whether or
Speaker 1: not uh DHS has provided the courts with a legitimate
Speaker 1: reason so they could overturn it. But at this point,
Speaker 1: you know, providing new rationales is not going to help
Speaker 1: the administration. It's going to be decided based on what
Speaker 1: they've already put out there. And what's your legal opinion
Speaker 1: about what they've put out there? Do you think you
Speaker 1: can sustain an appeal? Well, I would be surprised that
Speaker 1: if this went to the Supreme Court, the Supreme Court
Speaker 1: did not uphold the determinations by the Department of Homeland Security.
Speaker 1: I mean, when this policy was rolled out, was done
Speaker 1: without going through the regulatory process. Uh. This has always
Speaker 1: been an agency uh you know, the types of decisions
Speaker 1: that agencies have routinely taken based on their own discretion
Speaker 1: without judicial review. And it's somewhat surprising that the the
Speaker 1: administration has so far been unable to convince any court
Speaker 1: across the country that they actually have the authority to
Speaker 1: do this without providing a detailed explanation of their decision.
Speaker 1: And part of the reason why they've had so much
Speaker 1: trouble is that they've tried to say that they're not
Speaker 1: doing this for policy reasons. It's not that they don't
Speaker 1: want DOCCA to exist. It's that they believe that DOCCA
Speaker 1: is illegal. And that is what the judge continuously came
Speaker 1: back to and said, you never explained why you think
Speaker 1: it's illegal, and your justifications for why you think so
Speaker 1: don't hold any water. So why not tell us the
Speaker 1: real reasons that you're doing that? And they failed, again,
Speaker 1: uh to provide the real reasons for them taking this action.
Speaker 1: There have been previous court rulings in California and New York.
Speaker 1: There's another case pending in Texas which may find the
Speaker 1: program to be unconstitutional. The Ninth Circuit is going to
Speaker 1: issue a decision. How do all these cases fit together?
Speaker 1: It's really all of these cases so far have pointed
Speaker 1: in the same direction that, uh, you know, really the
Speaker 1: administration has done a very poor job in how they
Speaker 1: have justified the decision to rescind DOCCA. And of course
Speaker 1: you uh may know that the court in Texas is
Speaker 1: also looking at this. This is the same court that's
Speaker 1: struck down the Obama administration's expansion of a DOCTA program
Speaker 1: to parents of of of American born children, and UH,
Speaker 1: he is likely to strike down DOCTA based on the
Speaker 1: reasoning that he provided back in and so we could
Speaker 1: have conflict thing decisions both in d C and Texas
Speaker 1: and California, one requiring the administration to continue DAKA and
Speaker 1: the other ones UH, the other one in Texas UH
Speaker 1: striking it down. So that will lead to the Supreme
Speaker 1: Court intervening and deciding the issue once and for all.
Speaker 1: And you think the Supreme Court will uphold the government's position.
Speaker 1: I expect that the Supreme Court will side with the
Speaker 1: administration on this issue, despite the fact that more lower
Speaker 1: courts have gone against the admitted the administration. That's right
Speaker 1: because well, I think the reason is that, as I
Speaker 1: explained before, many agency actions UH similar to this one
Speaker 1: have been taken in the past and have been allowed
Speaker 1: to stand, particularly decisions about whether or not to um
Speaker 1: issue certain benefits on a discretionary basis or within certain
Speaker 1: administrative acts, such as creating a program for people who
Speaker 1: do not want to remove David, we run out of time.
Speaker 1: It's always great to have you on. That's David Beer,
Speaker 1: immigration policy analyst at the Cato Institute. Four cities have
Speaker 1: had enough of executive actions that are slowly killing Obamacare,
Speaker 1: and they're letting the Trump administration know that with a lawsuit.
Speaker 1: Just last week, the Trump administration announced that it would
Speaker 1: allow insurers to offer short term healthcare plan that don't
Speaker 1: meet the Affordable Care Acts minimum coverage requirements. Health and
Speaker 1: Human Services Secretary Alex Azar explained the change in an
Speaker 1: interview with Bloomberg. These can be fifty to eighty percent
Speaker 1: cheaper than Obamacare exchange plans, So this is a really
Speaker 1: important new option for millions of Americans. Joining me is
Speaker 1: Timothy Johns, a professor at Washington and Lee University School
Speaker 1: of Law. Tim the City's claimed that the Trump administration
Speaker 1: is trying to sabotage Obamacare, and they explain all this
Speaker 1: in a nearly one fifty page complaint. Give us some
Speaker 1: of the highlights of the administration's actions they're complaining about. Well.
Speaker 1: The complaint focuses on two different kinds of actions. One
Speaker 1: is a rule that was put out earlier this year
Speaker 1: to govern the sale of of insurance policies for for
Speaker 1: and the complaints singles out quite a number of things
Speaker 1: that are included in that rule that are reducing the
Speaker 1: regulation of health insurers UH and reducing access by consumers
Speaker 1: to information about health insurance and generally will probably have
Speaker 1: the effect of suppressing enrollment. Beyond that, the complaint also
Speaker 1: and the complaint alleges that those actions violate the Administrative
Speaker 1: Procedures Act, which governs the UM the promulgation of federal regulations,
Speaker 1: in that the rules are arbitrary and capricious and also
Speaker 1: in violation of federal law. The second UH issue raised
Speaker 1: by the complaint, which is a bigger issue UM, which
Speaker 1: is the claim that the administration generally is violating what
Speaker 1: is called to take care clause of the Constitution. The
Speaker 1: United States Constitution U requires the president to take care
Speaker 1: that the laws are faithfully executed UM, and President Trump
Speaker 1: has repeatedly said, and the complaint listed pages of his
Speaker 1: tweets and statements that he is trying to kill the
Speaker 1: Affordable Care Act, which is a law that was duly
Speaker 1: enacted by Congress and which Congress refused to repeal last
Speaker 1: year when it had the chance. UM and so it
Speaker 1: lifts a number of action is taken by the Trump administration,
Speaker 1: including the new Short Term Rule UM and other rules
Speaker 1: that are driving up the cost of health insurance for
Speaker 1: people with pre existing conditions UM and undermining the market
Speaker 1: for health insurance coverage. So Tim has to take care.
Speaker 1: Clause of the Constitution gotten much play, so to speak,
Speaker 1: in the federal courts. There haven't been a lot of
Speaker 1: cases raising the issue in this way. There are Supreme
Speaker 1: Court cases and appellate court cases that are cited in
Speaker 1: the complaint that make it clear that the president, the
Speaker 1: federal government does not have the option of simply ignoring
Speaker 1: federal law, of simply refusing to enforce federal law. But
Speaker 1: what's going on here is really unprecedented. Uh. It's it's
Speaker 1: hard to think of another instance where a pres evident
Speaker 1: has so openly and vociferously and uh and actively in
Speaker 1: the actions that the administration has taken refuse to implement
Speaker 1: a federal law and done everything that it could do
Speaker 1: to undermine that a federal law that was adopted by
Speaker 1: Congress that as we all remember from from Civics in
Speaker 1: high school. UM, Congress adopts the law and the President
Speaker 1: executes and enforces the law, and this president is just
Speaker 1: refusing to do that with the Affordable Care Act. So
Speaker 1: the Trump administration hasn't filed a response yet, But can
Speaker 1: you anticipate what the response might be? Uh? Yeah, I
Speaker 1: mean I would guess that they will probably start by
Speaker 1: trying to raise jurisdictional issues, challenging whether the cities, which
Speaker 1: are in fact heavily burdened by the administration's actions, have
Speaker 1: the right to sue um and then I guess will
Speaker 1: probably also claim that that to take care claus is unenforceable,
Speaker 1: and so we'll see where they go. They do have
Speaker 1: some time to respond, although I'm not privy to the
Speaker 1: what the planeffs planned to do, but if they move
Speaker 1: for a preliminary injunction, then maybe things will move more quickly. Now,
Speaker 1: is this suit an uphill battle for the cities or
Speaker 1: which side has the advantage here? In your mind? Well,
Speaker 1: because it is a claim that is going to be
Speaker 1: somewhat novel, I think it will be somewhat of an
Speaker 1: uphill battle. On the other hand, as you pointed out,
Speaker 1: this is a very long complaint that points out in
Speaker 1: great detail many actions the administration has taken to undermine
Speaker 1: the Affordable Care Act um and uh. And so I
Speaker 1: think that there is certainly a very good possibility that
Speaker 1: it will succeed in some of those claims. Least, the
Speaker 1: Justice Department announced that it would not defend Obamacare against
Speaker 1: a lawsuit that was brought by the Attorney's General of
Speaker 1: Texas and nineteen other Republican led states. How does that
Speaker 1: fit in with the scenario that this lawsuit points out? Well,
Speaker 1: I think the lawsuit specifically mentions that action is one
Speaker 1: of the actions that the Trump administration has been taking
Speaker 1: to sabotage the the Affordable Care Act um. And yes,
Speaker 1: that's very concerning. Uh that the administration they they did
Speaker 1: not say that they would not defend the entire law,
Speaker 1: but they said specifically that they would not defend the
Speaker 1: parts of the law that protect people with pre existing
Speaker 1: conditions um and make sure that they get affordable health coverage.
Speaker 1: So it's it's kind of ironic that a provision of
Speaker 1: the law that is supported by the vast majority of
Speaker 1: the American republic of public, including a majority of Republicans
Speaker 1: in recent polls, is the one provision that this administration
Speaker 1: has singled out to say that they will refuse to enforce.
Speaker 1: Just about a minute here, we're seeing Trump's words and
Speaker 1: specifically his tweets used in several lawsuits. Now, how have
Speaker 1: courts responded in general to the use of the tweets
Speaker 1: and lawsuits. Well, that's that's a developing issue. But in
Speaker 1: some of the cases involving immigration law, at least some
Speaker 1: of the courts have found the tweets to be significant
Speaker 1: evidence of the Trump administration's position. And in a case
Speaker 1: like this, where the claim is that the administration is
Speaker 1: explicitly not fulfilling its obligation to implement and enforce the law,
Speaker 1: I think the tweets are very powerful evidence that that's
Speaker 1: exactly what's going on. And what's the what do you
Speaker 1: what do you put the chances at of the states
Speaker 1: or the city's rather being able to get an injunction here?
Speaker 1: I'm I'm sorry, Okay, forget that's all right. We run
Speaker 1: out of time anyway. Thank you so much. That's Timothy Josh,
Speaker 1: professor at Washington and Lee University School of Law. Thanks
Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe
Speaker 1: and listen to the show on Apple podcast, SoundCloud, and
Speaker 1: on Bloomberg dot com. Slash Podcast. I'm June Basso. This
Speaker 1: is Bloomberg