WEBVTT - Judge Calls Immigration Efforts `Unacceptable'

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. On Friday, the

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<v Speaker 1>California federal judge presiding over the reunification of immigrant children

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<v Speaker 1>separated from their parents called the government efforts unacceptable. Earlier

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<v Speaker 1>in the weeks, Senate Judiciary Committee Chairman Chuck Grassley also

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<v Speaker 1>criticized the administration's policies. However, like many well intentioned policies UH,

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<v Speaker 1>these UH were on there were unintended consequences. And in

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<v Speaker 1>another federal courtroom on Friday, on the opposite side of

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<v Speaker 1>the country, a judge upheld his order that the DOCCA

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<v Speaker 1>program should be fully restored, giving the administration twenty days

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<v Speaker 1>to appeal. Joining me is David Beer, immigration policy analyst

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<v Speaker 1>at the Cato Institute. David turning to the federal court

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<v Speaker 1>room in d C. Judge John Bates gave the Trump

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<v Speaker 1>administration a second chance to show him there was a

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<v Speaker 1>legitimate reason to rescind DOCCA. Tell us what he asked

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<v Speaker 1>the administration and what the administration provided. Well, when the

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<v Speaker 1>administration first rescinded DOCCA for the Dreamers, who immigrants who

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<v Speaker 1>entered the United States as children, Uh, they did not

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<v Speaker 1>explain why they believed that that was a proper decision

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<v Speaker 1>for the government to be taking. And so what the

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<v Speaker 1>court found was that this decision was arbitrary and capricius

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<v Speaker 1>did not have a basis in law, and the judge

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<v Speaker 1>required the administration to reissue that memo rescinding that policy

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<v Speaker 1>or provide the court with a valid legal reasons why

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<v Speaker 1>it believed that that policy was unlawful. Uh, the government

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<v Speaker 1>really failed to do that, And the decision um from

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<v Speaker 1>the judge really lays out in detail why the court

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<v Speaker 1>felt that the Department of Homeland Security has not shown

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<v Speaker 1>why they are taking this action. So the judge didn't

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<v Speaker 1>say that the DHS secretary didn't have authority to rescind

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<v Speaker 1>the program. So if the Trump administration, which is expected

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<v Speaker 1>to appeal, can come up with a better explanation, with

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<v Speaker 1>a good explanation, is it possible that the judge will

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<v Speaker 1>rescind the order or that the appeals Court will Well,

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<v Speaker 1>at this point, really the Appeals Court is going to

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<v Speaker 1>be looking at whether or not the judge has abused

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<v Speaker 1>his discretion in this case too basically enjoin the memos

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<v Speaker 1>that the Department of Homeland Security has put out, so

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<v Speaker 1>that they're really going to be ruling on whether or

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<v Speaker 1>not uh DHS has provided the courts with a legitimate

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<v Speaker 1>reason so they could overturn it. But at this point,

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<v Speaker 1>you know, providing new rationales is not going to help

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<v Speaker 1>the administration. It's going to be decided based on what

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<v Speaker 1>they've already put out there. And what's your legal opinion

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<v Speaker 1>about what they've put out there? Do you think you

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<v Speaker 1>can sustain an appeal? Well, I would be surprised that

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<v Speaker 1>if this went to the Supreme Court, the Supreme Court

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<v Speaker 1>did not uphold the determinations by the Department of Homeland Security.

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<v Speaker 1>I mean, when this policy was rolled out, was done

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<v Speaker 1>without going through the regulatory process. Uh. This has always

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<v Speaker 1>been an agency uh you know, the types of decisions

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<v Speaker 1>that agencies have routinely taken based on their own discretion

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<v Speaker 1>without judicial review. And it's somewhat surprising that the the

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<v Speaker 1>administration has so far been unable to convince any court

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<v Speaker 1>across the country that they actually have the authority to

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<v Speaker 1>do this without providing a detailed explanation of their decision.

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<v Speaker 1>And part of the reason why they've had so much

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<v Speaker 1>trouble is that they've tried to say that they're not

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<v Speaker 1>doing this for policy reasons. It's not that they don't

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<v Speaker 1>want DOCCA to exist. It's that they believe that DOCCA

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<v Speaker 1>is illegal. And that is what the judge continuously came

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<v Speaker 1>back to and said, you never explained why you think

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<v Speaker 1>it's illegal, and your justifications for why you think so

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<v Speaker 1>don't hold any water. So why not tell us the

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<v Speaker 1>real reasons that you're doing that? And they failed, again,

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<v Speaker 1>uh to provide the real reasons for them taking this action.

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<v Speaker 1>There have been previous court rulings in California and New York.

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<v Speaker 1>There's another case pending in Texas which may find the

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<v Speaker 1>program to be unconstitutional. The Ninth Circuit is going to

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<v Speaker 1>issue a decision. How do all these cases fit together?

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<v Speaker 1>It's really all of these cases so far have pointed

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<v Speaker 1>in the same direction that, uh, you know, really the

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<v Speaker 1>administration has done a very poor job in how they

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<v Speaker 1>have justified the decision to rescind DOCCA. And of course

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<v Speaker 1>you uh may know that the court in Texas is

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<v Speaker 1>also looking at this. This is the same court that's

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<v Speaker 1>struck down the Obama administration's expansion of a DOCTA program

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<v Speaker 1>to parents of of of American born children, and UH,

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<v Speaker 1>he is likely to strike down DOCTA based on the

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<v Speaker 1>reasoning that he provided back in and so we could

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<v Speaker 1>have conflict thing decisions both in d C and Texas

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<v Speaker 1>and California, one requiring the administration to continue DAKA and

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<v Speaker 1>the other ones UH, the other one in Texas UH

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<v Speaker 1>striking it down. So that will lead to the Supreme

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<v Speaker 1>Court intervening and deciding the issue once and for all.

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<v Speaker 1>And you think the Supreme Court will uphold the government's position.

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<v Speaker 1>I expect that the Supreme Court will side with the

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<v Speaker 1>administration on this issue, despite the fact that more lower

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<v Speaker 1>courts have gone against the admitted the administration. That's right

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<v Speaker 1>because well, I think the reason is that, as I

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<v Speaker 1>explained before, many agency actions UH similar to this one

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<v Speaker 1>have been taken in the past and have been allowed

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<v Speaker 1>to stand, particularly decisions about whether or not to um

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<v Speaker 1>issue certain benefits on a discretionary basis or within certain

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<v Speaker 1>administrative acts, such as creating a program for people who

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<v Speaker 1>do not want to remove David, we run out of time.

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<v Speaker 1>It's always great to have you on. That's David Beer,

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<v Speaker 1>immigration policy analyst at the Cato Institute. Four cities have

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<v Speaker 1>had enough of executive actions that are slowly killing Obamacare,

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<v Speaker 1>and they're letting the Trump administration know that with a lawsuit.

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<v Speaker 1>Just last week, the Trump administration announced that it would

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<v Speaker 1>allow insurers to offer short term healthcare plan that don't

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<v Speaker 1>meet the Affordable Care Acts minimum coverage requirements. Health and

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<v Speaker 1>Human Services Secretary Alex Azar explained the change in an

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<v Speaker 1>interview with Bloomberg. These can be fifty to eighty percent

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<v Speaker 1>cheaper than Obamacare exchange plans, So this is a really

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<v Speaker 1>important new option for millions of Americans. Joining me is

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<v Speaker 1>Timothy Johns, a professor at Washington and Lee University School

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<v Speaker 1>of Law. Tim the City's claimed that the Trump administration

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<v Speaker 1>is trying to sabotage Obamacare, and they explain all this

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<v Speaker 1>in a nearly one fifty page complaint. Give us some

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<v Speaker 1>of the highlights of the administration's actions they're complaining about. Well.

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<v Speaker 1>The complaint focuses on two different kinds of actions. One

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<v Speaker 1>is a rule that was put out earlier this year

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<v Speaker 1>to govern the sale of of insurance policies for for

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<v Speaker 1>and the complaints singles out quite a number of things

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<v Speaker 1>that are included in that rule that are reducing the

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<v Speaker 1>regulation of health insurers UH and reducing access by consumers

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<v Speaker 1>to information about health insurance and generally will probably have

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<v Speaker 1>the effect of suppressing enrollment. Beyond that, the complaint also

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<v Speaker 1>and the complaint alleges that those actions violate the Administrative

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<v Speaker 1>Procedures Act, which governs the UM the promulgation of federal regulations,

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<v Speaker 1>in that the rules are arbitrary and capricious and also

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<v Speaker 1>in violation of federal law. The second UH issue raised

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<v Speaker 1>by the complaint, which is a bigger issue UM, which

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<v Speaker 1>is the claim that the administration generally is violating what

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<v Speaker 1>is called to take care clause of the Constitution. The

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<v Speaker 1>United States Constitution U requires the president to take care

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<v Speaker 1>that the laws are faithfully executed UM, and President Trump

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<v Speaker 1>has repeatedly said, and the complaint listed pages of his

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<v Speaker 1>tweets and statements that he is trying to kill the

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<v Speaker 1>Affordable Care Act, which is a law that was duly

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<v Speaker 1>enacted by Congress and which Congress refused to repeal last

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<v Speaker 1>year when it had the chance. UM and so it

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<v Speaker 1>lifts a number of action is taken by the Trump administration,

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<v Speaker 1>including the new Short Term Rule UM and other rules

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<v Speaker 1>that are driving up the cost of health insurance for

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<v Speaker 1>people with pre existing conditions UM and undermining the market

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<v Speaker 1>for health insurance coverage. So Tim has to take care.

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<v Speaker 1>Clause of the Constitution gotten much play, so to speak,

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<v Speaker 1>in the federal courts. There haven't been a lot of

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<v Speaker 1>cases raising the issue in this way. There are Supreme

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<v Speaker 1>Court cases and appellate court cases that are cited in

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<v Speaker 1>the complaint that make it clear that the president, the

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<v Speaker 1>federal government does not have the option of simply ignoring

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<v Speaker 1>federal law, of simply refusing to enforce federal law. But

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<v Speaker 1>what's going on here is really unprecedented. Uh. It's it's

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<v Speaker 1>hard to think of another instance where a pres evident

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<v Speaker 1>has so openly and vociferously and uh and actively in

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<v Speaker 1>the actions that the administration has taken refuse to implement

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<v Speaker 1>a federal law and done everything that it could do

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<v Speaker 1>to undermine that a federal law that was adopted by

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<v Speaker 1>Congress that as we all remember from from Civics in

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<v Speaker 1>high school. UM, Congress adopts the law and the President

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<v Speaker 1>executes and enforces the law, and this president is just

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<v Speaker 1>refusing to do that with the Affordable Care Act. So

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<v Speaker 1>the Trump administration hasn't filed a response yet, But can

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<v Speaker 1>you anticipate what the response might be? Uh? Yeah, I

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<v Speaker 1>mean I would guess that they will probably start by

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<v Speaker 1>trying to raise jurisdictional issues, challenging whether the cities, which

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<v Speaker 1>are in fact heavily burdened by the administration's actions, have

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<v Speaker 1>the right to sue um and then I guess will

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<v Speaker 1>probably also claim that that to take care claus is unenforceable,

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<v Speaker 1>and so we'll see where they go. They do have

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<v Speaker 1>some time to respond, although I'm not privy to the

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<v Speaker 1>what the planeffs planned to do, but if they move

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<v Speaker 1>for a preliminary injunction, then maybe things will move more quickly. Now,

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<v Speaker 1>is this suit an uphill battle for the cities or

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<v Speaker 1>which side has the advantage here? In your mind? Well,

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<v Speaker 1>because it is a claim that is going to be

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<v Speaker 1>somewhat novel, I think it will be somewhat of an

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<v Speaker 1>uphill battle. On the other hand, as you pointed out,

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<v Speaker 1>this is a very long complaint that points out in

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<v Speaker 1>great detail many actions the administration has taken to undermine

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<v Speaker 1>the Affordable Care Act um and uh. And so I

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<v Speaker 1>think that there is certainly a very good possibility that

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<v Speaker 1>it will succeed in some of those claims. Least, the

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<v Speaker 1>Justice Department announced that it would not defend Obamacare against

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<v Speaker 1>a lawsuit that was brought by the Attorney's General of

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<v Speaker 1>Texas and nineteen other Republican led states. How does that

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<v Speaker 1>fit in with the scenario that this lawsuit points out? Well,

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<v Speaker 1>I think the lawsuit specifically mentions that action is one

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<v Speaker 1>of the actions that the Trump administration has been taking

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<v Speaker 1>to sabotage the the Affordable Care Act um. And yes,

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<v Speaker 1>that's very concerning. Uh that the administration they they did

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<v Speaker 1>not say that they would not defend the entire law,

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<v Speaker 1>but they said specifically that they would not defend the

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<v Speaker 1>parts of the law that protect people with pre existing

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<v Speaker 1>conditions um and make sure that they get affordable health coverage.

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<v Speaker 1>So it's it's kind of ironic that a provision of

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<v Speaker 1>the law that is supported by the vast majority of

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<v Speaker 1>the American republic of public, including a majority of Republicans

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<v Speaker 1>in recent polls, is the one provision that this administration

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<v Speaker 1>has singled out to say that they will refuse to enforce.

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<v Speaker 1>Just about a minute here, we're seeing Trump's words and

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<v Speaker 1>specifically his tweets used in several lawsuits. Now, how have

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<v Speaker 1>courts responded in general to the use of the tweets

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<v Speaker 1>and lawsuits. Well, that's that's a developing issue. But in

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<v Speaker 1>some of the cases involving immigration law, at least some

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<v Speaker 1>of the courts have found the tweets to be significant

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<v Speaker 1>evidence of the Trump administration's position. And in a case

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<v Speaker 1>like this, where the claim is that the administration is

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<v Speaker 1>explicitly not fulfilling its obligation to implement and enforce the law,

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<v Speaker 1>I think the tweets are very powerful evidence that that's

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<v Speaker 1>exactly what's going on. And what's the what do you

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<v Speaker 1>what do you put the chances at of the states

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<v Speaker 1>or the city's rather being able to get an injunction here?

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<v Speaker 1>I'm I'm sorry, Okay, forget that's all right. We run

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<v Speaker 1>out of time anyway. Thank you so much. That's Timothy Josh,

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<v Speaker 1>professor at Washington and Lee University School of Law. Thanks

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<v Speaker 1>for listening to the Bloomberg Law Podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple podcast, SoundCloud, and

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<v Speaker 1>on Bloomberg dot com. Slash Podcast. I'm June Basso. This

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<v Speaker 1>is Bloomberg