# Mixed Reaction in Courts to Trump's US Troop Plans

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 9 Oct 2025, 37 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/90e0c6ea-d62b-450f-95c4-b371017bbc13/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses hearings in San Francisco and Chicago over Trump deploying the National Guard to Portland and Chicago. Elections law expert Richard Briffault, a professor at Columbia Law School, discusses SCOTUS arguments over a Republican congressman’s suit over mail-in balloting in Illinois. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
[0:08] Speaker 2: President Donald Trump's plan to send hundreds of troops to
[0:12] Speaker 2: Oregon and Illinois to counter protests against his immigration crackdown
[0:17] Speaker 2: faced two major tests today in separate courts, as state
[0:21] Speaker 2: officials continued to raise the alarm about the White House's
[0:25] Speaker 2: domestic use of the military, and there appeared to be
[0:29] Speaker 2: mixed reactions in the contentious hearings in San Francisco and Chicago.
[0:34] Speaker 2: A federal appeals court in San Francisco appeared to back
[0:38] Speaker 2: Trump's request to overturn a temporary order barring his deployment
[0:43] Speaker 2: of the National Guard to Portland, but a federal judge
[0:47] Speaker 2: in Chicago was critical of whether there was legal support
[0:51] Speaker 2: for sending troops into that city. My guest is immigration
[0:55] Speaker 2: law expert Leon Fresco, a partner at Hollanda Knight leont Teli,
[1:00] Speaker 2: tell us about the issue in the appellate court hearing
[1:03] Speaker 2: in San Francisco.
[1:04] Speaker 1: This case involved the Portland deployment of National Guard troops
[1:09] Speaker 1: at the Portland where the Trump administration was saying that
[1:13] Speaker 1: they needed those National Guard troops into Portland to guard
[1:17] Speaker 1: the federal ice facilities and the federal ice officers who
[1:20] Speaker 1: are engaging in their mission, and their argument is that
[1:23] Speaker 1: Portland is such a dangerous place that the Guard is
[1:27] Speaker 1: needed because their local officials are not sufficient to protect
[1:31] Speaker 1: the federal interests that are there in Portland trying to
[1:35] Speaker 1: enforce the immigration laws. And so there was a district
[1:38] Speaker 1: court opinion that enjoyed that use of National Guard for
[1:42] Speaker 1: that purpose and said that the Guard couldn't be used
[1:44] Speaker 1: for that purpose if it was in contravention to the
[1:48] Speaker 1: wishes of the State of Oregon, which is what happened
[1:51] Speaker 1: near the State of Oregon did not want those guards
[1:54] Speaker 1: being sent to Oregon, especially if it was going to
[1:57] Speaker 1: be done for the purposes of supplementing or augment and
[2:00] Speaker 1: immigration enforcement. So that's why they had filed the suit originally.
[2:04] Speaker 1: This case now went to the Ninth Circuit for a
[2:08] Speaker 1: stay of that order so that when it goes on
[2:11] Speaker 1: appeal for the merits that it be stayed so that
[2:14] Speaker 1: the National Guard could be deployed into Portland. And although
[2:18] Speaker 1: there's not a decision yet, it does look like at
[2:20] Speaker 1: the argument two of the Ninth Circuit judges who were
[2:24] Speaker 1: appointed by President Trump were of the belief that yes,
[2:27] Speaker 1: there could be a brightline area where you could be
[2:32] Speaker 1: deploying National Guard troops for improper purposes. But we couldn't
[2:37] Speaker 1: speculate upfront that that was going to happen, and that
[2:41] Speaker 1: if the Guard was going to be strictly deployed just
[2:45] Speaker 1: to guard the federal interest, that that, on its face
[2:48] Speaker 1: would it be a violation of the rules by which
[2:52] Speaker 1: you could deploy the National Guard. And so for that reason,
[2:55] Speaker 1: even though a decision not out, it looks like there
[2:57] Speaker 1: will be a decision that will say, hey, look, if
[3:00] Speaker 1: this is applied in an unconstitutional manner, come back to
[3:04] Speaker 1: us and tell us that. But on its face, we're
[3:06] Speaker 1: not going to say that it's unconstitutional to send National
[3:09] Speaker 1: Guard to Portland.
[3:10] Speaker 2: So what are the rules for sending in the National Guard?
[3:16] Speaker 2: Because the administration is argued in both cases that there's
[3:20] Speaker 2: an active threat of rebellion and that the federal government
[3:24] Speaker 2: can't carry out the law without the National Guard's assistance.
[3:28] Speaker 1: Well, there's various scenarios in which you can bring the
[3:32] Speaker 1: National Guard, and one would be if you thought there
[3:35] Speaker 1: was a rebellion going on, and there is certainly that
[3:39] Speaker 1: area of debate about whether the circumstances in those locations
[3:44] Speaker 1: are tantamount to a rebellion, and that's where in the
[3:49] Speaker 1: Chicago case there's sort of this argument going on there
[3:53] Speaker 1: about whether there's a rebellion or not. But there's also
[3:57] Speaker 1: a different part where it's just the Guard can be
[3:59] Speaker 1: deployed to guard federal property and to guard federal workers
[4:04] Speaker 1: and law enforcement people trying to do their job. So
[4:07] Speaker 1: under either of those two scenarios, the National Guard can
[4:11] Speaker 1: be deployed. And so the question is just the Trump
[4:15] Speaker 1: administration have sufficient evidence that that's all they're going to
[4:19] Speaker 1: be doing, or will they be crossing the line into
[4:22] Speaker 1: enforcement of civil laws, which the National Guard is not
[4:26] Speaker 1: permitted to do. And so that's where when you have
[4:28] Speaker 1: this ICE enforcement it becomes problematic because if the courts
[4:32] Speaker 1: start to think that the National Guard is basically part
[4:35] Speaker 1: and parcel of ICE enforcement, then that's unconstitutional and that's
[4:40] Speaker 1: not permitted. Whereas if the Trump administration can sort of
[4:44] Speaker 1: make this periphery type argument that no, they're not enforcing
[4:47] Speaker 1: immigration law, but they're protecting the ICE agents, because what
[4:51] Speaker 1: happens is whenever ICE tries to work in these sounds,
[4:54] Speaker 1: they're getting harassed, they're getting things thrown at them. They're
[4:58] Speaker 1: getting cars being driven into their cars and all kinds
[5:02] Speaker 1: of other violent acts that they need protection, then that
[5:06] Speaker 1: argument starts to have more salience than if they think
[5:10] Speaker 1: that what the National Guard is doing is not protecting
[5:13] Speaker 1: these ice agents but actually force multiplying immigration enforcement in
[5:19] Speaker 1: those areas.
[5:20] Speaker 2: The two trumpetpointees really grilled the lawyer for Oregon. Judge
[5:25] Speaker 2: Ryan Nelson, asked why Oregon, in the city of Portland,
[5:29] Speaker 2: should be able to second guess the president's determination about
[5:33] Speaker 2: the level of disruption the protests were causing. So the
[5:37] Speaker 2: president who's sitting in Washington is going to determine the
[5:41] Speaker 2: level of protests When a judge in Portland, a Trump appointee,
[5:46] Speaker 2: found that Trump's conclusions were not tethered to the facts.
[5:52] Speaker 1: I do think if there is the debate on what
[5:56] Speaker 1: the level of violence is in Portland, as opposed to
[6:00] Speaker 1: cabining it to protection of federal facilities and federal officers,
[6:05] Speaker 1: and that were instead talking about is there too much
[6:09] Speaker 1: of an insurrection going on supposedly in Portland or in Oregon,
[6:14] Speaker 1: that would then justify the National Guard being brought on
[6:17] Speaker 1: that basis to be able to just generally protect law
[6:20] Speaker 1: and order. Then I do think that argument if it
[6:25] Speaker 1: goes on Bank to the Ninth Circuit, because that argument
[6:28] Speaker 1: may prevail two to one in this panel, but if
[6:31] Speaker 1: it were to go on Bank to the Ninth Circuit,
[6:33] Speaker 1: it would probably be overturned. And then the Supreme Court's
[6:37] Speaker 1: going to have to decide what level of difference goes
[6:40] Speaker 1: to the president for this kind of larger law enforcement
[6:45] Speaker 1: sort of keeping the peace type of National Guard, And
[6:49] Speaker 1: that's going to be brand new law that we're going
[6:52] Speaker 1: to have to see what the Supreme Court does with
[6:54] Speaker 1: regard to these arguments that, wow, things have gotten so bad,
[7:00] Speaker 1: we need the National Guard to actually calm things down.
[7:03] Speaker 1: So they're not just going to be protecting federal facilities
[7:06] Speaker 1: and they're not just going to be protecting the ice officer,
[7:09] Speaker 1: but they're actually going to be protecting everybody because things
[7:12] Speaker 1: have gotten so bad. And so to the extent that
[7:15] Speaker 1: that Trump administration doesn't want a cabin what the Guard
[7:19] Speaker 1: is doing to just the federal protection, then they're going
[7:22] Speaker 1: to need to rely on this larger argument that the
[7:25] Speaker 1: president gets different for what the president means is the
[7:30] Speaker 1: threat level in that area. And then now it's going
[7:32] Speaker 1: to be for the courts to decide is the president
[7:35] Speaker 1: entitled to that difference and for how long of a
[7:37] Speaker 1: period of time, or does the state get that difference
[7:43] Speaker 1: since it's their national guard that's being put into service.
[7:46] Speaker 2: Because appellate courts are supposed to defer to the district
[7:51] Speaker 2: court judges as fact finders, but these two appellate judges
[7:54] Speaker 2: didn't seem to be doing that, didn't seem to be
[7:57] Speaker 2: crediting the district court judge at all.
[8:00] Speaker 1: Well, they may think that the district judge is right
[8:02] Speaker 1: on the facts, but that at the end of the day,
[8:05] Speaker 1: the district judge doesn't have any authority to make any
[8:08] Speaker 1: factual findings. If the decision they're going to issue is
[8:12] Speaker 1: that basically it's not cognitable that a state can come
[8:16] Speaker 1: in and sue and say we disagree with the president's
[8:19] Speaker 1: assessment of the threat level in the States. So if
[8:23] Speaker 1: that's really where they're going, then they're going to have
[8:25] Speaker 1: to figure out some lines that they're drawing in order
[8:29] Speaker 1: to not make that where the president can deploy the
[8:31] Speaker 1: National Guard for any purpose that the president wants. But
[8:34] Speaker 1: it's possible that this two to one panel may issue
[8:38] Speaker 1: a decision that says that that the President gets either
[8:41] Speaker 1: complete difference or almost complete difference to decide when to
[8:46] Speaker 1: deploy the guard. And then we'll have to see when
[8:49] Speaker 1: the und Bank panel of the Ninth Circuit word to intervene,
[8:54] Speaker 1: or perhaps the Supreme Court, what they would say about
[8:56] Speaker 1: their conclusion.
[8:57] Speaker 2: Oregon will probably be luckier if it's just the Bank panel.
[9:01] Speaker 2: And I just want to explain that on this panel
[9:03] Speaker 2: you had a two to one situation, two Trump appointees
[9:08] Speaker 2: and one Clinton appointee. Looking at all the judges on
[9:12] Speaker 2: the Ninth Circuit, there are thirteen Republican appointees and sixteen
[9:19] Speaker 2: Democratic appointees. So if there is an on bank hearing,
[9:23] Speaker 2: the odds are better for organ.
[9:26] Speaker 1: In certain courts, the entire court, meaning all of the
[9:29] Speaker 1: active judges actually sit there and would look at the case.
[9:34] Speaker 1: In the Ninth Circuit there's too many active judges and
[9:37] Speaker 1: so they actually also have a panel. It just happens
[9:39] Speaker 1: to have more judges in it. If they have a
[9:41] Speaker 1: panel of twelve, which is what their m Bank panels are,
[9:45] Speaker 1: then that twelve judge panel. We still don't know what
[9:48] Speaker 1: the takeaway is, but yes, it is more likely that
[9:52] Speaker 1: there will be a panel that contains fewer Trump appointed judges,
[9:57] Speaker 1: and even there, even if a judge was not appointed
[10:01] Speaker 1: by Trump but was appointed by a other Republican president,
[10:05] Speaker 1: sometimes even those judges have shown less deference to the
[10:09] Speaker 1: Trump administration than the judges that have been specifically appointed
[10:13] Speaker 1: by President Trump.
[10:14] Speaker 2: There was a hearing in Chicago today before a federal
[10:19] Speaker 2: judge about Trump's deployment of troops to Chicago. So it
[10:25] Speaker 2: seems like the lower court judges who are looking at
[10:28] Speaker 2: the facts on the ground have different opinions than the
[10:32] Speaker 2: appellate court judges in these situations.
[10:35] Speaker 3: Tell us about what's what the issue is there?
[10:38] Speaker 1: Correct? There? I mean it's the same argument again that
[10:42] Speaker 1: the president's determination about the cities whether they meet the
[10:46] Speaker 1: legal standard for bringing National Guard troops under federal control.
[10:50] Speaker 1: And again here there's two issues, which is are the
[10:55] Speaker 1: guardsmen going to only be protecting federal property and federal
[11:00] Speaker 1: agents or are they going to be stopping a violent insurrection?
[11:05] Speaker 1: And what the judge is saying in the Chicago case
[11:09] Speaker 1: is well, what are you doing? And so the judge
[11:12] Speaker 1: started asking a bunch of questions to the DOJ, which
[11:15] Speaker 1: I think was the correct way to do this, to
[11:18] Speaker 1: try to say which argument are you resting on are
[11:20] Speaker 1: you resting on this is only federal property, or are
[11:24] Speaker 1: you saying that the situation is so bad that you're
[11:27] Speaker 1: going to be doing other kinds of enforcement. And because
[11:31] Speaker 1: the DOJ attorney really I think probably didn't have a
[11:38] Speaker 1: answer on what the full mission was going to be
[11:41] Speaker 1: for these National Guard coming into Chicago, rightfully, couldn't sort
[11:46] Speaker 1: of give the most precise answers to all of these
[11:49] Speaker 1: hypothetical questions. And so the judge looks like the judge
[11:53] Speaker 1: is going to enjoin the National Guard, just like the
[11:56] Speaker 1: Portland District judge did, saying it looks like you're going
[12:00] Speaker 1: to be going beyond the federal protection situation. And because
[12:06] Speaker 1: of that, you haven't shown the fact that you need
[12:09] Speaker 1: to on the ground to be able to show that
[12:12] Speaker 1: you can deploy the Federal National Guard for any other
[12:15] Speaker 1: purpose here.
[12:16] Speaker 2: Yeah, I mean the judge, and this has happened in
[12:19] Speaker 2: other hearings, said she was troubled by what she described
[12:23] Speaker 2: as a disconnect between the official orders from the federal
[12:27] Speaker 2: government directing the activities of military troops in Chicago and
[12:32] Speaker 2: the public statements the rhetoric made by Trump about what
[12:36] Speaker 2: their duties in the city are. I mean, Trump keeps
[12:38] Speaker 2: talking about crime, and when the prosecutors get into court
[12:44] Speaker 2: they talk about how this is, you know, limited. So
[12:48] Speaker 2: the judge said, what I am troubled by at the
[12:50] Speaker 2: moment is when I try to nail down what of
[12:52] Speaker 2: those things that they will do, you don't really offer
[12:54] Speaker 2: a clear answer, probably because they don't have a clear answer, right.
[12:59] Speaker 1: I don't think the ny probably has a clear answer
[13:02] Speaker 1: because I do think the mission hasn't been defined with
[13:05] Speaker 1: the level of specificity that would give the attorney a
[13:09] Speaker 1: clear answer. And so for that reason, I think that
[13:12] Speaker 1: that's just an unfortunate situation for that specific attorney to
[13:16] Speaker 1: be in. But that's the reason why this judge is
[13:19] Speaker 1: then't going to say fine, then what you're trying to
[13:21] Speaker 1: do is you're trying to deploy the National Guard for
[13:25] Speaker 1: a broad purpose, not just for the federal purpose. And
[13:29] Speaker 1: since you're not willing to foreclose this and so because
[13:32] Speaker 1: of that, you haven't submitted enough factual basis that there's
[13:37] Speaker 1: enough chaos and insurrection going on that you need the
[13:40] Speaker 1: National Guard to come in to stop such conduct from
[13:44] Speaker 1: a curry.
[13:45] Speaker 2: And then we'll see what the Seventh Circuit says coming
[13:48] Speaker 2: up Next, we're going to talk about some other immigration issues,
[13:51] Speaker 2: including lawsuits over the high price tag Trump has put
[13:54] Speaker 2: on h One v.
[13:55] Speaker 3: Visus.
[13:56] Speaker 2: I'm Drew and Grasso, and you're listening to Bloomberg. Now
[14:00] Speaker 2: to the continuing legal saga of Kilmore Abrego Garcia, the
[14:05] Speaker 2: Salvadoran man deported in error to l Salvador last March
[14:09] Speaker 2: and then returned to the United States to face criminal
[14:12] Speaker 2: charges in Tennessee. Could he be released on Friday. I've
[14:16] Speaker 2: been talking to immigration attorney Leon Fresco of Holland and Knight.
[14:21] Speaker 3: Leon.
[14:21] Speaker 2: It's been about seven months since the case of Abrego
[14:25] Speaker 2: Garcia was in the headlines. Tell us where his case
[14:29] Speaker 2: stands right now.
[14:31] Speaker 1: So, in the Kilmar Abrego Garcia case, this was the
[14:34] Speaker 1: individual who got sent to El Salvador who had a
[14:37] Speaker 1: protection order that said that they couldn't be deported to
[14:42] Speaker 1: Al Savador specifically on the basis of gang violence, not
[14:46] Speaker 1: on the basis of detention in that Seacott facility, which
[14:49] Speaker 1: is the facility for terrorists that the President Bucella made
[14:53] Speaker 1: in El Savador. But nevertheless there was an order specifically
[14:56] Speaker 1: saying that Abrego Garcia couldn't be deported to El Salvador,
[15:01] Speaker 1: and nevertheless he was and then the question was was
[15:04] Speaker 1: he ever going to be brought back. He ended up
[15:06] Speaker 1: finally being brought back because there was an extradition on
[15:10] Speaker 1: human trafficking charges. The human trafficking charges judge led about
[15:15] Speaker 1: on bond that basically said, it doesn't look like there's
[15:19] Speaker 1: really a much of a case here for human trafficking.
[15:22] Speaker 1: So he was placed back into immigration detention to try
[15:26] Speaker 1: to undo the order that executed the removal to Alsavador
[15:34] Speaker 1: that said there's no more gang violence than Elsavador because
[15:37] Speaker 1: President Bukela has stopped and has actually put in this prison,
[15:41] Speaker 1: et cetera. And they did get an order that basically
[15:45] Speaker 1: said they could do this deportation, but it has to
[15:49] Speaker 1: be to a different country, and so Abraco Garcia has
[15:53] Speaker 1: actually stipulated, fine, I'll go to Costa Rica. And the
[15:58] Speaker 1: United States government's card position and is, no, we don't
[16:00] Speaker 1: want to send you to Costa Rica. We want to
[16:03] Speaker 1: send you to what was formerly known as Swaziland, which
[16:06] Speaker 1: is a little land mass inside of South Africa which
[16:09] Speaker 1: is now called Swatini, and that's where we want to
[16:13] Speaker 1: send you to, which there is case law called Zavidas
[16:18] Speaker 1: versus the United States, which says, once you're in that
[16:21] Speaker 1: situation where the government has said they want to deport
[16:24] Speaker 1: you to a certain location, if they can't show that
[16:28] Speaker 1: it's significantly likely to happen in the foreseeable future, they
[16:32] Speaker 1: have to let you out of detention. And so that's
[16:35] Speaker 1: the current fight is fine, you're not going to send
[16:37] Speaker 1: me to Costa Rica. You want to send me to Swaziland,
[16:40] Speaker 1: flash Swatini. How quickly do you plan on doing this?
[16:43] Speaker 1: Are you just going to keep me in detention for
[16:46] Speaker 1: the foreseeable future? And there's a hearing on Friday. If
[16:50] Speaker 1: the court doesn't get a date certain for this removal,
[16:55] Speaker 1: the court is probably going to let mister Abrego Garcia
[16:58] Speaker 1: out of detention again, which I think will very much
[17:02] Speaker 1: upset the Trump administration and then to have to make
[17:04] Speaker 1: some decisions. Do they just send him to Costa Rica
[17:07] Speaker 1: then or unclear what they'll be willing to do in
[17:09] Speaker 1: that situation.
[17:11] Speaker 2: Why would there be a problem or delay in sending
[17:15] Speaker 2: him to Swatini.
[17:17] Speaker 1: It's possible that the Swine government does want to accept
[17:23] Speaker 1: They have already accepted some people, but they may not
[17:25] Speaker 1: want to accept mister abrago Garcia specifically, or they may
[17:30] Speaker 1: be trying to figure out some plan for what they're
[17:33] Speaker 1: going to do with him when he arrives, and so
[17:36] Speaker 1: these reasons for delays are very unclear. But they're going
[17:40] Speaker 1: to have to come up with a date certain, that
[17:42] Speaker 1: is for a fact, so that if they don't have
[17:44] Speaker 1: a date certain, then the judge is probably going to
[17:47] Speaker 1: let out a brago Garcia on Friday.
[17:50] Speaker 2: He would be let out temporarily or premporarily until there's
[17:54] Speaker 2: a date they can place him immediately back in detention
[17:58] Speaker 2: if they can come up with a date for deportations,
[18:01] Speaker 2: that they could say, Okay, we had.
[18:03] Speaker 1: The travel document, we're now going to deport him on
[18:06] Speaker 1: October twenty first or something.
[18:08] Speaker 2: Leon How often does the government deport people to countries
[18:15] Speaker 2: where they have no connections at all.
[18:19] Speaker 1: So it's not unprecedented. Prior to the Trump administration, I
[18:23] Speaker 1: was involved in a very famous case when I was
[18:25] Speaker 1: in the Department of Justice where there was a Palestinian
[18:28] Speaker 1: terrorist who blew up a plane in Hawaii and he
[18:32] Speaker 1: actually got a plea deal, and in this plea deal,
[18:35] Speaker 1: he was only given twenty five years in prison because
[18:38] Speaker 1: he was supposed to turn in other terrorists, and he
[18:40] Speaker 1: actually didn't end up doing it, and so the twenty
[18:42] Speaker 1: five years ran out and there was no place to
[18:45] Speaker 1: deport him because Israel didn't want to take him. And
[18:47] Speaker 1: so the question is what were we going to do
[18:49] Speaker 1: with this person or were we just going to let
[18:51] Speaker 1: them out and start walking around the United States when
[18:53] Speaker 1: this person had blown up at an airplane And so
[18:57] Speaker 1: the US government made negotiations and actually got Mauritania to
[19:01] Speaker 1: take this individual. So this does happen in cases like this,
[19:04] Speaker 1: but the Trump administration is trying to deploy this in
[19:07] Speaker 1: a much broader fashion. They're sending people to Ghana, to Swatini,
[19:13] Speaker 1: to Libya, to El Salvador, to many other countries. And
[19:17] Speaker 1: they're actually having thesea negotiations with countries that are very
[19:21] Speaker 1: interested in having foreign students and other foreign nationals get
[19:26] Speaker 1: visas to come to America, and they're saying, fine, if
[19:29] Speaker 1: you want better treatment on that, you will have to
[19:31] Speaker 1: agree to accept people who're trying to deport from other countries.
[19:36] Speaker 1: And so some countries like Ghana have said yes and
[19:39] Speaker 1: other countries have said no. But it's going to be
[19:42] Speaker 1: very interesting moving forward. And by the way, the idea
[19:45] Speaker 1: for this is twofold. One is to be able to
[19:48] Speaker 1: execute deportations in cases where you can't currently do it,
[19:53] Speaker 1: So there's just the guns and bolts of it. But secondly,
[19:57] Speaker 1: it's also a massive deterrence where say you're from a
[20:01] Speaker 1: country like Cuba or China, and you say, oh, well,
[20:05] Speaker 1: there's no downside to coming to the US illegally because
[20:08] Speaker 1: China won't accept me or Cuba won't accept me. Well,
[20:12] Speaker 1: now the government can say, yeah, but how about if
[20:14] Speaker 1: we send you to Libya or South Sudan. You're not
[20:17] Speaker 1: going to like that too much, so don't try to
[20:19] Speaker 1: come here. So it's to give also that extra layer
[20:22] Speaker 1: of deterrent so that people won't come here thinking that
[20:25] Speaker 1: their country won't accept them back.
[20:28] Speaker 2: You know, we talked before about President Trump putting one
[20:31] Speaker 2: hundred thousand dollars fee on new h one B workers' visas,
[20:37] Speaker 2: and so a coalition of employers is suing. Isn't it
[20:42] Speaker 2: up to the federal government to set the fee?
[20:45] Speaker 1: So this is going to be a very interesting case.
[20:47] Speaker 1: It's a coalition of unions, universities, nursing companies, and professional organizations,
[20:53] Speaker 1: and what they're saying is that the way this fee
[20:57] Speaker 1: works is if you want to put in the fee,
[21:01] Speaker 1: you have to actually go through the regulatory process of
[21:04] Speaker 1: the Administrative Procedure Act and actually do the whole notice
[21:07] Speaker 1: in comment and do the year long regulatory process with
[21:11] Speaker 1: all the analysis on the economy and everything else. You
[21:14] Speaker 1: can't use the travel ban Authority. And so this is
[21:18] Speaker 1: going to be an argument because the Travel Ban Authority
[21:21] Speaker 1: says very specifically, the President can put any terms and
[21:25] Speaker 1: conditions the president wants on the entry of people into
[21:29] Speaker 1: the United States. But the H one B Statute says
[21:33] Speaker 1: that any changes to the H one B program has
[21:36] Speaker 1: to be done visa the regulation. And so there's two
[21:40] Speaker 1: statutes that literally conflict with one another, and the Court's
[21:44] Speaker 1: going to have to decide which one governs here.
[21:46] Speaker 2: And finally, we've also discussed before Venezuelan's temporary protected status,
[21:53] Speaker 2: and this seems to be in the category of the
[21:55] Speaker 2: lower courts rule one way and then the case gets
[21:59] Speaker 2: to the Supreme Court, the Supreme Court reverses. So the
[22:02] Speaker 2: Supreme Court is allowing Trump to lift the temporary protected
[22:08] Speaker 2: status of Venezuelans.
[22:10] Speaker 1: Correct. This has happened twice. Now, where what happened was
[22:13] Speaker 1: first there was a preliminary injunction, and in the preliminary injunction,
[22:19] Speaker 1: the court ruled the lower court. The district Court ruled
[22:21] Speaker 1: that the president could not get rid of temporary protected
[22:24] Speaker 1: status from Venezuelans because the idea was that the administration
[22:29] Speaker 1: didn't do the analysis of what was actually happening in
[22:32] Speaker 1: Venezuela and predetermined the outcome, and so it was not
[22:37] Speaker 1: a proper revocation of temporary protective status. The Supreme Court
[22:42] Speaker 1: put a stay on that temporary injunction, and so everyone thought, well,
[22:46] Speaker 1: that's over. The Venezuelans have lost their temporary protected status
[22:50] Speaker 1: and the story. Then the District Court said, well, that
[22:53] Speaker 1: stay was only of the temporary injunction, but now I'm
[22:57] Speaker 1: issuing a final injunction. And so I'm I'm that's bound
[23:00] Speaker 1: by that court stay, especially because the court didn't actually
[23:04] Speaker 1: explain it's what. They issued one of these one line
[23:07] Speaker 1: opinions lifting the injunction, saying, hey, we're staying the injunction.
[23:12] Speaker 1: So I don't know what the basis was, but maybe
[23:15] Speaker 1: they didn't like something in the temporary injunction. But now
[23:18] Speaker 1: I'm issuing a final injunction that is really looking at
[23:21] Speaker 1: the evidence of what was considered, so I have the
[23:24] Speaker 1: ability to do this again. So the court again said
[23:27] Speaker 1: the Venezuelans keep their temporary protected status. Everyone was happy
[23:31] Speaker 1: again in the Venezuelan community. But now the government appeals
[23:36] Speaker 1: it and then the Supreme Court issues the exact same
[23:38] Speaker 1: order again staying this protection. So now as of November,
[23:44] Speaker 1: the temporary protected status will be gone and all of
[23:47] Speaker 1: these Venezuelans, hundreds of thousands of them, will be an
[23:50] Speaker 1: illegal status subject to deportation. And it's going to be
[23:54] Speaker 1: very complicated. What's going to happen with all of these individuals?
[23:58] Speaker 2: Leon, Are there any other group groups of foreign nationals
[24:02] Speaker 2: who still have temporary protected status?
[24:04] Speaker 1: The only country that has temporary protected status that has
[24:08] Speaker 1: not been disturbed, interestingly enough, because it's actually what I
[24:13] Speaker 1: would argue the most stable because of who the president
[24:16] Speaker 1: is is El Salvador. But El Salvador obviously has the
[24:21] Speaker 1: president that most friendly, the President Trump, and it appears
[24:25] Speaker 1: that obviously some arrangement was made to keep the El
[24:30] Speaker 1: Salvadoran TPS available. So that's the one country that has
[24:34] Speaker 1: kept its temporary protective status.
[24:37] Speaker 2: That certainly seems odd. Thanks so much, Leon, As always
[24:42] Speaker 2: that's Leon Fresco, a partner at Honda Knight.
[24:47] Speaker 4: What you're sketching out for us is a potential disaster.
[24:52] Speaker 4: In other words, you're saying, if the candidate's going to
[24:55] Speaker 4: win by sixty five percent, no standing. But if the candidate,
[24:59] Speaker 4: you know, hopes to win by a dozen votes, and
[25:02] Speaker 4: there are places in the country where that happens over
[25:04] Speaker 4: and over again, then he has standing. But we're not
[25:08] Speaker 4: going to know that until we get very close to
[25:10] Speaker 4: the election, right, and so it's going to be in
[25:13] Speaker 4: the middle the most fraught time for the court to
[25:15] Speaker 4: get involved in electoral politics. That's when you say we
[25:18] Speaker 4: should jump in.
[25:19] Speaker 2: Chief Justice John Roberts painted a bleak picture of judges
[25:24] Speaker 2: having to make decisions close to an election about whether
[25:28] Speaker 2: a political candidate has the legal right to sue over
[25:32] Speaker 2: their states election laws based on the candidate's chances of
[25:36] Speaker 2: success at the ballot box. The Chief wasn't alone in
[25:40] Speaker 2: that assessment. A majority of conservative justices seem to feel
[25:45] Speaker 2: the same. Illinois Republican and Congressman Mike Bost is challenging
[25:50] Speaker 2: the state law that allows mail in ballots to be
[25:53] Speaker 2: counted if they're received up to two weeks later, the
[25:57] Speaker 2: Seventh Circuit throughout Boss case, finding that the veteran congressman
[26:01] Speaker 2: didn't have standing to sue because his claims of the
[26:05] Speaker 2: law hurting his chances were speculative at best. But the
[26:09] Speaker 2: conservative justices appeared open to allowing Boss's lawsuit to proceed.
[26:15] Speaker 2: They seemed skeptical about the idea that a candidate's vote
[26:18] Speaker 2: totals should affect their ability to sue and a court
[26:22] Speaker 2: making that decision. Here's Justice Neil Gorsuch.
[26:26] Speaker 5: And then along the way, is there something unseemly about
[26:29] Speaker 5: federal courts making prognostications about a candidate's chance of success
[26:36] Speaker 5: immediately before an election that itself might influence the election?
[26:41] Speaker 2: But the liberal justice is questioned whether Bost had shown
[26:44] Speaker 2: evidence that he was harmed by the law. Justice Elena
[26:48] Speaker 2: Kagan told the Assistant Solicitor General Michael Talent that it
[26:52] Speaker 2: seemed like the suit was one in search of a problem.
[26:56] Speaker 6: I mean, I guess I just sort of think, like,
[26:58] Speaker 6: what's the problem here?
[27:00] Speaker 2: The problem here and what our rule gets to is
[27:03] Speaker 2: the fact that candidates are forced to gamble that these
[27:06] Speaker 2: ballots are going to affect the outcome of their elections.
[27:08] Speaker 6: I don't think we've ever actually asked the RNC or
[27:12] Speaker 6: the DNC to do anything like that. What we've asked
[27:15] Speaker 6: the parties to do is to And this is why
[27:17] Speaker 6: you don't get these cases thrown out on standing grounds,
[27:21] Speaker 6: because there are perfectly easy ways for a party to
[27:24] Speaker 6: say why a new rule is going to harm them
[27:27] Speaker 6: in the electoral game.
[27:28] Speaker 2: Illinois is among eighteen states and the District of Columbia
[27:32] Speaker 2: that accept male ballots received after election day as long
[27:37] Speaker 2: as they're postmarked honor before that date. Joining me is
[27:40] Speaker 2: elections law expert Richard Brofalt, a professor at Columbia Law School.
[27:45] Speaker 2: Rich tell us about boss lawsuit.
[27:49] Speaker 7: So, in this case, Congress from Boston's challenging Illinois's law
[27:53] Speaker 7: that permits mail in ballots to be counted up to
[27:56] Speaker 7: two weeks after election day, provided that they are postmarked
[28:00] Speaker 7: of election day basically allows local ports of elections to
[28:03] Speaker 7: count late received ballots provided that they were actually mailed
[28:07] Speaker 7: as of election day. His claim is that the respect
[28:10] Speaker 7: to a congressional election, this violates the federal law that
[28:12] Speaker 7: says that we have a single election day, and that's
[28:15] Speaker 7: the second Tuesday in November.
[28:17] Speaker 2: A lower court found he didn't have standing to sue
[28:20] Speaker 2: tell us about the lower court's decision.
[28:23] Speaker 7: Right, This was the lower court in Illinois, where he's from. Basically,
[28:27] Speaker 7: he did not claim that this was going to cost
[28:29] Speaker 7: him the election. He basically claimed that this could affect
[28:33] Speaker 7: his share of the vote and that it also costs
[28:36] Speaker 7: his campaign some money to keep staff going to monitor
[28:39] Speaker 7: the lead counting of the ballots. But he didn't make
[28:42] Speaker 7: the argument that he was likely to lose, that he
[28:44] Speaker 7: had the essential risk of losing his election because of this.
[28:47] Speaker 7: So the lower court and actually the Court of Appeals
[28:49] Speaker 7: and the seven Circuits found that he didn't have standing.
[28:52] Speaker 7: That standing generally requires that you make an allegation of harm,
[28:56] Speaker 7: and they felt he had not alleged any harm, which
[28:59] Speaker 7: is to say losing election.
[29:00] Speaker 3: He won by like seventy five percent of the vote.
[29:03] Speaker 7: Right, And he's an eight or ten term member of Congress.
[29:06] Speaker 7: And this law in Illinois been on the books now
[29:08] Speaker 7: for quite some time. So he's run and won at
[29:10] Speaker 7: least a half dozen, possibly ten elections under this rule.
[29:14] Speaker 3: What's the threshold legal question here?
[29:17] Speaker 7: Well, the question is whether we as standing. I mean,
[29:19] Speaker 7: this case is being read against the backdrop of the
[29:21] Speaker 7: challenge to abs and de ballots. The ultimate merits question
[29:25] Speaker 7: of whether or not it violates federal law for stakes
[29:28] Speaker 7: to continue to count and nail in ballots after election
[29:31] Speaker 7: day provided their postmark before. Indeed, there's a decision out
[29:34] Speaker 7: of the Fifth Circuit that involve the Mississippi that says
[29:36] Speaker 7: it does violate the law. This is ultimately going to
[29:39] Speaker 7: be about that. But the question before the court of
[29:41] Speaker 7: this time is standing. What are the conditions wherein a
[29:45] Speaker 7: candidates standing to challenge an election law before the election
[29:50] Speaker 7: and Congress and Boast and his lawyer are basically arguing
[29:53] Speaker 7: that the fact that he is a candidate inherently gives
[29:56] Speaker 7: him standing, that candidates by definition have standing to challenge
[30:00] Speaker 7: the laws that govern the running of elections. He also
[30:03] Speaker 7: has some backup arguments, but that's in some sense. His
[30:06] Speaker 7: argument Number one is he is a candidate, therefore he
[30:09] Speaker 7: is standing.
[30:09] Speaker 3: And what is Illinois arguing?
[30:11] Speaker 7: Illinois arguing that under basic standing doctrine General Supreme Court
[30:15] Speaker 7: standing doctrine, you have to make an allegation that there's
[30:18] Speaker 7: a substantial risk of harm and that he hasn't argued
[30:21] Speaker 7: that he hasn't shown that this is likely to cost
[30:24] Speaker 7: him his election. And therefore that that he doesn't understanding
[30:27] Speaker 7: that he has an alleged that this is actually hurting him.
[30:30] Speaker 2: Many of the several many majority of the conservative justices
[30:37] Speaker 2: seem to be signaling support for bost Why.
[30:42] Speaker 7: That was my reading of the argument. And there is
[30:44] Speaker 7: one pretty good argument on his side, which is, although
[30:48] Speaker 7: it's not clear how it fits with traditional standing doctrine,
[30:51] Speaker 7: which is it's good to get these challenges out of
[30:54] Speaker 7: the way for the election. It's better to have this
[30:57] Speaker 7: issue of whether or not late received that de ballast
[31:00] Speaker 7: can be counted resolved a year before the election, since
[31:04] Speaker 7: after the election when everyone might know that it could
[31:07] Speaker 7: actually affect the outcome. So I think as a general rule,
[31:10] Speaker 7: there's broad agreement that challenges to election laws ought to
[31:14] Speaker 7: be resolved outside the context of a current election, and
[31:18] Speaker 7: I think that's what they were largely reacting to.
[31:21] Speaker 2: Several of the justices. I think the Chief Justice and
[31:24] Speaker 2: Justice Kavanaugh were talking about how requiring candidates to show
[31:30] Speaker 2: that a new voting rule created risks would put judges
[31:34] Speaker 2: in the prediction business.
[31:36] Speaker 7: Yeah. I mean, again, the state's argument is he hasn't
[31:39] Speaker 7: shown that he's having a risk of harm. He's been
[31:41] Speaker 7: elected and re elected overwhelmingly in his district many times.
[31:45] Speaker 7: And the state was arguing, he's going to make some
[31:47] Speaker 7: claim consistent with general principles of standing law, that this
[31:51] Speaker 7: law creates a risk of laws for him, risk of harm.
[31:54] Speaker 7: But as you say, the Chief Justice Kavanaugh was saying, well,
[31:57] Speaker 7: that means that you're going to require judges to make
[31:59] Speaker 7: a gain as as to whether he's a shoe in
[32:02] Speaker 7: in which case he doesn't have standing, or he's a
[32:05] Speaker 7: likely winner but there's a chance he might lose in
[32:07] Speaker 7: therefore he has. It's dating and then even the question
[32:10] Speaker 7: of well what about if you're bound to lose, if
[32:13] Speaker 7: you're from a minor party, you're a party that always
[32:16] Speaker 7: loses this district. Does that mean you can't see either
[32:18] Speaker 7: because you can't share you're any worse off because you're
[32:22] Speaker 7: you're going to go from five percent to four percent,
[32:25] Speaker 7: or a converse that you're going to go from ninety
[32:26] Speaker 7: percent eighty five percent. They were saying that the state's
[32:30] Speaker 7: standard it basically invites judges to get into this kind
[32:33] Speaker 7: of political predictions, which they shouldn't be doing.
[32:36] Speaker 5: So.
[32:36] Speaker 2: The liberal justices seemed skeptical of boss claims, and Justice
[32:42] Speaker 2: Kagan said, I have a sense this whole suit's a
[32:45] Speaker 2: little bit in search of a problem. They're perfectly easy
[32:48] Speaker 2: ways for a party to say why a new rule
[32:51] Speaker 2: is going to harm them in the electoral game, So
[32:53] Speaker 2: let the party do it.
[32:54] Speaker 7: That was herview. Herview was that in fact, parties have
[32:57] Speaker 7: been ringing these cases, and it's unclear why the National
[33:00] Speaker 7: Committee itself didn't bring the case or the Illinois Republican Committee.
[33:03] Speaker 7: In some ways, the best argument for boss position is
[33:06] Speaker 7: that it's a good idea to get these cases resolved early.
[33:10] Speaker 7: Her response is that's fine, but you didn't need him
[33:13] Speaker 7: to bring the suit. The Republican Party could have brought
[33:15] Speaker 7: the suit, and the liberals, I think had some concern
[33:19] Speaker 7: about how does this fit in with traditional standing doctrine.
[33:23] Speaker 7: Kagan is mainly the least hostile. It seemed to me
[33:26] Speaker 7: she was looking for a way to allow the case
[33:29] Speaker 7: to find standing, although maybe not on the same terms
[33:32] Speaker 7: as a Boss argument. She recognized the power of the
[33:36] Speaker 7: argument that there should be pre election litigation of this,
[33:39] Speaker 7: but she, like the other liberals, were skeptical didn't quite
[33:42] Speaker 7: see how this fit into traditional standing rules.
[33:46] Speaker 2: Is there a fear that ruling for bost would open
[33:49] Speaker 2: the floodgates to challenges of all sorts of state election rules.
[33:54] Speaker 7: That was the argument that the state raised that right,
[33:57] Speaker 7: that this means unless there's a real standing, lest there's
[34:00] Speaker 7: a real serious risk of injury, anybody could bring any
[34:04] Speaker 7: lawsuit that this basically opens itself up to an effect
[34:07] Speaker 7: open ended litigation. There's something to that. On the other hand,
[34:10] Speaker 7: as thinking Roberts are taking some these suits are being
[34:14] Speaker 7: brought anyway, and there's a lot to be said for
[34:17] Speaker 7: the argument let's have the suit decided before the election,
[34:20] Speaker 7: rather than in the heat of the election or after
[34:23] Speaker 7: the election.
[34:24] Speaker 2: So there were some unusual alliances here. The League of
[34:27] Speaker 2: Women Voters and the ACLU, among others, filed a brief
[34:32] Speaker 2: in support of boss right to bring this legal challenge.
[34:37] Speaker 7: That's right, and it's on that theory. I suspect that
[34:40] Speaker 7: they would be against his position on the merits about
[34:44] Speaker 7: whether or not federal law prohibits accounting of late received
[34:48] Speaker 7: mail in ballots, But I think they agree with the
[34:50] Speaker 7: idea that it's good to get these questions resolved early.
[34:54] Speaker 7: It's good to get these questions resolved before the votes
[34:57] Speaker 7: have actually been cast.
[34:59] Speaker 2: Trump has been vociferous about mail in balloting leading to fraud,
[35:03] Speaker 2: et cetera. And there are several lawsuits brought by allies
[35:08] Speaker 2: of Trump questioning the guidelines in different states around mail
[35:12] Speaker 2: in ballots. Will this decision impact those efforts to stop
[35:17] Speaker 2: the practice of states counting mail in ballots after election day?
[35:21] Speaker 7: Assuming that Bust wins, it will move that issue one
[35:26] Speaker 7: step forward to judicial resolution, although I believe there's already
[35:30] Speaker 7: a case in which a lower court found that late counting. Again,
[35:35] Speaker 7: it's post election day counting of ballots mailed in by
[35:39] Speaker 7: election day. At least one lower court has said that
[35:41] Speaker 7: that does violate the federal law setting a single national
[35:45] Speaker 7: election day. Again, that's only relevant as to federal elections.
[35:49] Speaker 7: So my guess is, one way or the other, we're
[35:51] Speaker 7: going to have this issue for the Supreme Court very soon.
[35:54] Speaker 7: I guess as that issue is going to be resolved,
[35:57] Speaker 7: whether or not he wins this case.
[35:59] Speaker 2: Thanks so much, rich That's Professor Richard Ruffald of Columbia
[36:02] Speaker 2: Law School.
[36:04] Speaker 3: And that's it for this edition of the Bloomberg Law Show.
[36:06] Speaker 2: Remember you can always get the latest legal news on
[36:09] Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
[36:13] Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law.
[36:19] Speaker 3: And remember to tune into The Bloomberg.
[36:20] Speaker 2: Law Show every weeknight at ten pm Wall Street Time.
[36:24] Speaker 2: I'm June Grosso and you're listening to Bloomberg

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