# Trump Can't Fire Fed's Cook Now & Oregon Sues Trump

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 3 Oct 2025, 38 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/44c1d773-3254-453a-891f-b36901806b50/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Elliott Stein, Bloomberg Intelligence Senior Litigation Analyst, discusses the Supreme Court refusing to allow President Trump to immediately fire Federal Reserve Governor Lisa Cook. Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses Oregon suing Trump over deploying the National Guard and Dreamers being able to sign up for DACA again. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: The Supreme Court has refused to allow President Trump to
[0:12] Speaker 2: immediately oust Federal Reserve Governor Lisa Cook over mortgage fraud
[0:17] Speaker 2: allegations she's denied. The order issued today with no dissents
[0:22] Speaker 2: means Cook can remain in her position at least until
[0:26] Speaker 2: the justice is rule and oral arguments in the case
[0:29] Speaker 2: aren't even scheduled until January. The Supreme Court has largely
[0:34] Speaker 2: sided with Trump this year in cases challenging his firings
[0:38] Speaker 2: of officials at different federal agencies, so today's order was rare.
[0:44] Speaker 2: Joining me is elliot Stein, Bloomberg Intelligence senior litigation analyst
[0:49] Speaker 2: Elliott Is this a big win for Cook?
[0:52] Speaker 1: I would say it's a interim win for her because
[0:56] Speaker 1: it does allow her to stay in her position as
[1:00] Speaker 1: a Federal Reserve Board governor while the case continues to
[1:04] Speaker 1: proceed in the Supreme Court. But the Supreme Court didn't
[1:08] Speaker 1: really weigh in further than that, and it said that
[1:12] Speaker 1: it has deferred any ruin for now until after it
[1:16] Speaker 1: can hear oral argument in January of twenty twenty six,
[1:21] Speaker 1: so he will be serving in her current role until then,
[1:25] Speaker 1: at a minimum, and then we'll wait to see what
[1:27] Speaker 1: the justices say.
[1:29] Speaker 2: Beyond that, the Supreme Court has basically sided with Trump
[1:32] Speaker 2: this year in cases challenging his firing of officials at
[1:37] Speaker 2: different federal agencies, for example, the firing of the FTC commissioner,
[1:42] Speaker 2: the firing of the NLRB board member, and the firing
[1:46] Speaker 2: of the Merit Systems Protection Board member, and the Court
[1:50] Speaker 2: has allowed the removal of those officials as the litigation
[1:53] Speaker 2: plays out. So does this say the Supreme Court sees
[1:57] Speaker 2: the FED differently.
[1:58] Speaker 1: Yeah, absolutely, that's exactly right. We've seen so many cases,
[2:03] Speaker 1: including the ones that you mentioned, brought by commissioners of
[2:06] Speaker 1: other agencies a President Trump fired, they sued. Those cases
[2:11] Speaker 1: mostly went in the commissioner's favors in the lower courts,
[2:15] Speaker 1: and then when it got to the Supreme Court, the justices,
[2:17] Speaker 1: usually on either an administrative basis or on an emergency
[2:23] Speaker 1: stay application, essentially overruled the lower courts and allowed the
[2:28] Speaker 1: terminations to take place and take effect while the litigation
[2:32] Speaker 1: played out. This is very notable because at least the
[2:35] Speaker 1: cookcase really is different in that respect. First, you know,
[2:39] Speaker 1: Justice Roberts did not issue an administrative stay like you
[2:43] Speaker 1: did just a couple of weeks ago in the FTC
[2:45] Speaker 1: case involving Rebecca Slaughter, and then he referred it to
[2:49] Speaker 1: all the justices, and the conservative majority on the Supreme
[2:53] Speaker 1: Court didn't rule in President Trump's favor like they did
[2:57] Speaker 1: in some of the other cases, like the NLRB case
[2:59] Speaker 1: to Wilcox's case, in the Foil case, which was another
[3:02] Speaker 1: similar case. I think what's really notable about the Lisa
[3:05] Speaker 1: Cook CAAs is that the Supreme Court really is viewing
[3:08] Speaker 1: the Federal Reserve differently than it is other agencies. And
[3:11] Speaker 1: we already knew that from the Wilcox decision in May,
[3:15] Speaker 1: where the Supreme Court said that the Federal Reserve is unique,
[3:21] Speaker 1: it has a unique structure, it has a unique history,
[3:23] Speaker 1: it's really quasi private according to the justices, and therefore
[3:27] Speaker 1: it's not like these other independent agencies, which the conservative
[3:31] Speaker 1: justices seem to view as more clearly falling under the
[3:34] Speaker 1: executive branch.
[3:36] Speaker 2: And there was no dissent. So now the Court is
[3:39] Speaker 2: going to hear arguments in the case challenging Trump's firing
[3:43] Speaker 2: of FTC Commission Member Rebecca Slaughter. As you mentioned, that's
[3:48] Speaker 2: in early December. Right, does the schedule for the cookcase
[3:53] Speaker 2: suggest that the Justices want to look at the FTC
[3:58] Speaker 2: case before turning to the FED.
[4:03] Speaker 1: Yeah, I think that's a fair reading. I mean, I
[4:05] Speaker 1: think the issues are little distinct, right, I think the
[4:09] Speaker 1: FTC case really is going to concern whether four cause
[4:14] Speaker 1: removal restrictions are constitutional or not, and whether the Humphreys
[4:19] Speaker 1: Executor Supreme Court case from nineteen thirty five, which established
[4:22] Speaker 1: that they are constitutional, should be overruled or not. That's
[4:26] Speaker 1: really what's that issue in that case. This case, at least,
[4:28] Speaker 1: the Cook case almost presumes that the four cause removal
[4:32] Speaker 1: restriction is constitutional, and the issue is what does cause mean?
[4:38] Speaker 1: What does it require? And you know, should there be noticed,
[4:41] Speaker 1: an opportunity to be heard, and who should even make
[4:45] Speaker 1: that determination as to whether the four cause standard has
[4:49] Speaker 1: been met?
[4:50] Speaker 2: And the Trump administration here, the Solicitor General said that
[4:54] Speaker 2: Trump had reason to fire Cook for cause. He also
[4:58] Speaker 2: said the courts don't have the discription to review the
[5:01] Speaker 2: president's determination.
[5:03] Speaker 1: Right. That's the government's argument that a the fore cost
[5:06] Speaker 1: standard is very broad. All requires is something beyond a
[5:10] Speaker 1: policy disagreement, and that it's really up to the president
[5:13] Speaker 1: to determine whether that standard has been met. You know,
[5:17] Speaker 1: at least the Cook obviously takes a different view and says, well,
[5:21] Speaker 1: if it's only up to the president to determine whether
[5:24] Speaker 1: the forecast standard has been met, that essentially renders the
[5:27] Speaker 1: standard meaningless because you've turned it almost into an at
[5:31] Speaker 1: will standard, which should not be your standard at all.
[5:35] Speaker 2: For those few people who may not have heard about
[5:38] Speaker 2: these mortgage investigations, Trump is accused Cook of mortgage fraud,
[5:44] Speaker 2: which she denies. She has not been charged with a
[5:47] Speaker 2: crime yet, and Bloomberg News has previously reported that loan
[5:52] Speaker 2: documents for Cook's Georgia home appear to contradict the claims
[5:57] Speaker 2: made by the FAHFA share build. So this is at
[6:02] Speaker 2: a very early stage. How did the federal judge who
[6:06] Speaker 2: reviewed this look at it?
[6:08] Speaker 1: I think you're exactly right. This is all at a
[6:10] Speaker 1: very early stage, and so they're really trying to determine
[6:13] Speaker 1: what the law even requires before they get into the
[6:16] Speaker 1: facts of the case. The trial court judge essentially held
[6:21] Speaker 1: that four cause can't solely be based on something that
[6:26] Speaker 1: happened before the person was appointed to her current role.
[6:31] Speaker 1: If it is something that happened before she was appointed,
[6:34] Speaker 1: it has to at least tie into her ability to
[6:37] Speaker 1: serve in that role, and that hasn't happened here, according
[6:41] Speaker 1: to the Childcourt judge, and the trial court judge also
[6:43] Speaker 1: said that there has to be some sort of due
[6:46] Speaker 1: process according to the Constitution, and that that wasn't satisfied
[6:49] Speaker 1: here either. The Appeals Court ruled solely on the due
[6:53] Speaker 1: process argument and didn't even get to what four cause requires.
[6:59] Speaker 1: And so, you know, the Supreme Court, we don't know
[7:02] Speaker 1: exactly how far they're going to go. We don't know
[7:04] Speaker 1: if they're going to rule on both those issues. I'm
[7:07] Speaker 1: sure they're going to explore both those issues, but they may,
[7:10] Speaker 1: like the Appeals Court wind not rulin, just on you know,
[7:13] Speaker 1: whether due process is required, and they may say, you know,
[7:16] Speaker 1: if they agree with the Appeals Court, they may say
[7:18] Speaker 1: due process was not satisfied here, and you know, they'll
[7:22] Speaker 1: send it back to the lower courts, or they'll articulate
[7:26] Speaker 1: what due process actually does require and then send it
[7:29] Speaker 1: back to the lower courts to determine whether that standard
[7:33] Speaker 1: was met here or not. So it is early, as
[7:35] Speaker 1: you say, After the Supreme Court rules, most likely it
[7:38] Speaker 1: will go back down to the lower courts.
[7:40] Speaker 2: And did the Trump administration claim that there was notice
[7:46] Speaker 2: to Cook because of social media posts of the president.
[7:50] Speaker 1: Yeah. Their initial argument is that you notice, an opportunity
[7:54] Speaker 1: to be heard isn't even required here because there's no
[7:57] Speaker 1: property interest in a public interest role like the Federal
[8:01] Speaker 1: Reserve Board governor seat. But their argument after that is, okay, well,
[8:06] Speaker 1: if notice is required, it was satisfied here because President
[8:10] Speaker 1: Trump's social media posts gave her ample notice, and she
[8:13] Speaker 1: had ample notice to respond to those posts. And she
[8:17] Speaker 1: hasn't really substantively articulated why the allegations are wrong. But
[8:23] Speaker 1: you know, I think her approach is a sensible one
[8:26] Speaker 1: in the sense that you know, she's saying, look, the
[8:29] Speaker 1: law requires more than that at a minimum, And so
[8:33] Speaker 1: let's argue about what the law requires before we even
[8:35] Speaker 1: get into the factor.
[8:37] Speaker 2: And in this case, you had a group of former
[8:40] Speaker 2: Fed and Treasury officials who served under Republican and Democratic
[8:44] Speaker 2: administrations writing a Friend of the Court brief that urged
[8:48] Speaker 2: the justices to leave Cook in place.
[8:52] Speaker 1: Right, These are amicus briefs, like you said, from former
[8:56] Speaker 1: Federal Reserve Board governors appointed by presidents of both parties,
[9:00] Speaker 1: as well as Treasury Secretary is appointed by presidents of
[9:03] Speaker 1: both parties, arguing why Federal Reserve independence is so important,
[9:09] Speaker 1: and they just point to a more stable monetary policy
[9:13] Speaker 1: in countries where you do have Federal Reserve Board independence.
[9:16] Speaker 1: This again goes to the point which I think the
[9:18] Speaker 1: Supreme Court already picked up on previously in their Wilcox
[9:22] Speaker 1: decision in May as why the Federal Reserve is different
[9:26] Speaker 1: from other independent agencies that more clearly fall under the executive.
[9:31] Speaker 2: France and Elliott, you are giving Kook a sixty chance
[9:35] Speaker 2: to prevail at.
[9:36] Speaker 1: The court exactly. I think she's a slight favorite based
[9:39] Speaker 1: on what we've seen the Supreme Court do in the
[9:42] Speaker 1: Wilcox decision and what we sort of have seen it
[9:44] Speaker 1: do more recently in Justice Roberts not issuing an administrative
[9:48] Speaker 1: stay and again in all the Justices not doing what
[9:52] Speaker 1: they did in these other cases where they allowed the
[9:55] Speaker 1: termination is to take effect while the case plays out.
[9:58] Speaker 1: But it is a close case, a out of unsettled
[10:00] Speaker 1: issues like the ones we've talked about. What is caused?
[10:03] Speaker 1: What does they require? Is there a do process requirement?
[10:07] Speaker 1: What kind of notice is required? And who should make
[10:10] Speaker 1: that determination.
[10:11] Speaker 2: It's a high stakes case and the oral arguments should
[10:14] Speaker 2: be interesting. Thanks so much, Elliott. That's Bloomberg Intelligence senior
[10:19] Speaker 2: litigation analyst Elliott Stein coming up next on the Bloomberg
[10:23] Speaker 2: Law Show. President Trump has already sent troops into Los
[10:28] Speaker 2: Angeles and Chicago over the objections of the governors of
[10:32] Speaker 2: California and Illinois. Oregon isn't waiting for the deployment of troops.
[10:38] Speaker 2: It's already suing Trump over what it says is an
[10:41] Speaker 2: unlawful federalization of the National Guard. I'm June Grosso. When
[10:45] Speaker 2: you're listening to Bloomberg.
[10:47] Speaker 3: There is no insurrection, there is no threat to national security,
[10:53] Speaker 3: and there is no need for military troops in our
[10:56] Speaker 3: major city.
[10:57] Speaker 2: The next city to see the national art on its
[11:00] Speaker 2: streets will be Portland, Oregon. In a post on truth
[11:04] Speaker 2: Social on Saturday, President Trump said he was authorizing troops
[11:09] Speaker 2: to quote protect war ravaged Portland and any of our
[11:13] Speaker 2: ice facilities under siege from attack by Antifa and other
[11:18] Speaker 2: domestic terrorists. But the state isn't waiting for the deployment
[11:22] Speaker 2: to push back, It's already suing Trump over what it
[11:26] Speaker 2: says is an unlawful federalization of the National Guard. Here's
[11:31] Speaker 2: Governor Tina Kotek.
[11:32] Speaker 3: Any deployment would be an abuse of power and a
[11:35] Speaker 3: misuse of federal troops.
[11:37] Speaker 2: My guest is Leon Fresco, a partner at Holland and
[11:39] Speaker 2: Knight and the former head of the Office of Immigration
[11:42] Speaker 2: Litigation in the Obama administration. Leon, is this similar to
[11:46] Speaker 2: what happened in Los Angeles and Chicago where Trump deployed
[11:51] Speaker 2: troops over the objection of those cities mayors and the
[11:56] Speaker 2: state's governors.
[11:58] Speaker 4: Well, it's similar in one respect, and it's different in
[12:01] Speaker 4: another respect. The Los Angeles operations first started off as
[12:07] Speaker 4: much broader National Guard operations basically trying to keep the
[12:12] Speaker 4: peace in Los Angeles due to conflagrations that had happened
[12:16] Speaker 4: as a result of ice enforcement that various home depot
[12:20] Speaker 4: and other type of locations. Whereas here in Portland there
[12:25] Speaker 4: is that type of rhetoric, but at least the discussion
[12:28] Speaker 4: of it is basically only about sending two hundred Oregon
[12:33] Speaker 4: National Guard troops to protect federal facilities, and so the
[12:38] Speaker 4: federal facility protection part was actually viewed as lawful in
[12:43] Speaker 4: Los Angeles when that occurred. What was not viewed as
[12:46] Speaker 4: lawful by the federal courts, there was the larger protection
[12:51] Speaker 4: that didn't involve the protection of federal facilities. And so
[12:55] Speaker 4: even though there's not a lawsuits that's been filed by
[12:58] Speaker 4: the Oregon Attorney General to block the federalization of the
[13:02] Speaker 4: National Guard, at the end of the day, the ICE facilities,
[13:06] Speaker 4: at least according to the Los Angeles order, appear to
[13:09] Speaker 4: be something that the National Guard can be deployed to
[13:13] Speaker 4: protect because it is a federal facility. But we'll wait
[13:17] Speaker 4: and see where this goes because there's other issues of play. Also.
[13:21] Speaker 4: The City of Portland is claiming that ICE violated its
[13:24] Speaker 4: land use agreement with the City of Portland by detaining
[13:28] Speaker 4: individuals for much longer than they were supposed to be detained,
[13:32] Speaker 4: and other issues with regard to how far these protests
[13:37] Speaker 4: are being blocked by the National Guard agents. Are they
[13:40] Speaker 4: just protecting the facilities or are they going further out
[13:43] Speaker 4: than that, And so all of those things will need
[13:45] Speaker 4: to be resolved in a federal court proceeding later this week.
[13:50] Speaker 4: The preliminary injunction hearing is supposed to be determined later
[13:54] Speaker 4: this week, but for now, we're going to basically see
[13:56] Speaker 4: can the Guard be deployed at all. Most likely will
[14:00] Speaker 4: be yes, to protect the federal facility, but then there
[14:02] Speaker 4: will be questions about, again, is Ice violating the terms
[14:07] Speaker 4: of its land use agreement with Oregon? And are these
[14:09] Speaker 4: federal troops doing more than just protecting the federal facility?
[14:13] Speaker 2: So do you think that Oregon officials jump the gun
[14:16] Speaker 2: by filing a lawsuit now instead of waiting to see
[14:22] Speaker 2: how the troops are deployed, whether they just guard the
[14:26] Speaker 2: ICE facilities or whether they engage in policing.
[14:32] Speaker 4: Correct, you would normally want to build a better record
[14:34] Speaker 4: in a situation like this, But I do think that
[14:38] Speaker 4: at this stage of things, there's a lot of politics involved,
[14:44] Speaker 4: and so people just want to get these lawsuits in
[14:46] Speaker 4: and then they'll sort of let the facts come as
[14:49] Speaker 4: as they may, which is not normally how you would
[14:51] Speaker 4: do a lawsuit. But in these days where everything is politics,
[14:55] Speaker 4: you know, there's all of these questions. Was the National
[15:00] Speaker 4: Guard mobilization motivated by politics? Was the lawsuit motivated by politics?
[15:05] Speaker 4: And so there's politics on all sides here, and we'll
[15:10] Speaker 4: just have to wait and see what the court, who
[15:12] Speaker 4: is not supposed to be a political actor, does about
[15:15] Speaker 4: all of these various claims. That are being made. And
[15:18] Speaker 4: also one further complicating fact generally is that in civil
[15:24] Speaker 4: litigation right now, in cases involving the government, unless there's
[15:28] Speaker 4: some threat to life or liberty, those are being continued
[15:33] Speaker 4: right now because of the government shutdown, and so unclear
[15:37] Speaker 4: if these hearings will go forward if there is a
[15:40] Speaker 4: shutdown that continues for some period of time.
[15:43] Speaker 5: To have Illinois or Chicago sued over the deployment, they
[15:48] Speaker 5: sued with regard to the way that ICE is enforcing,
[15:54] Speaker 5: both at the immigration courts and with regard to grant funding,
[15:58] Speaker 5: but not with regard to the National Guard.
[16:01] Speaker 2: So many lawsuits, very difficult to keep drag of them,
[16:04] Speaker 2: but you do.
[16:04] Speaker 4: Yes.
[16:05] Speaker 2: So now you had a judge, a Reagan appointed judge
[16:09] Speaker 2: with forty years experience on the bench, right a blistering
[16:14] Speaker 2: decision finding that the Trump administration unconstitutionally targeted non citizens
[16:21] Speaker 2: over their speech about the guys of war. Tell us
[16:25] Speaker 2: what Judge William Young in Boston, what he found.
[16:28] Speaker 4: Sure, So the case is called the American Association of
[16:31] Speaker 4: University Professors versus Rubio, and it's a question about the
[16:36] Speaker 4: policies that the administration was putting in place with regard
[16:42] Speaker 4: to saying basically, if you support hamas in your rhetoric
[16:47] Speaker 4: on social media, et cetera, that you would, for foreign
[16:51] Speaker 4: policy violation reasons, be deportable from the United States if
[16:55] Speaker 4: you were not a citizen. And so the people who
[16:59] Speaker 4: sued in that case saying this was ideological deportation that
[17:05] Speaker 4: violated the First Amendment. So that was their claim, and
[17:09] Speaker 4: the Trump administration was saying that the deportation was not
[17:13] Speaker 4: based on political speech or pro Palestinian views, but really
[17:18] Speaker 4: at the end of the day, was based on support
[17:21] Speaker 4: for terrorist organizations aka AMAS and national security concerns, meaning
[17:27] Speaker 4: that if people were sort of riling up tensions in
[17:30] Speaker 4: the United States, who are foreign nationals, so they're not
[17:33] Speaker 4: US citizens, they're foreign nationals engaging in dialogue that's meant
[17:37] Speaker 4: to rile up tensions, Why is that in the national
[17:40] Speaker 4: interests of the United States better that you know, people
[17:43] Speaker 4: like that not be here so that they're less quote
[17:46] Speaker 4: unquote tension being riled up. And so this is the
[17:49] Speaker 4: sort of the debate, and the issue is who wins
[17:53] Speaker 4: in this situation? Does the First Amendment win? You know,
[17:57] Speaker 4: as long as you're not doing any actual violence, you're
[18:00] Speaker 4: just advocating on behalf of the Palestinians. And let's say,
[18:03] Speaker 4: even if it's a pro Palestinian solution to the conflict,
[18:07] Speaker 4: is that protected or can the administration, based on the
[18:11] Speaker 4: broad authority given to it by the Congressional Statute, say, look,
[18:16] Speaker 4: the statute say when the Secretary of State finds any
[18:20] Speaker 4: conduct bad for the foreign policy interests of the United States,
[18:24] Speaker 4: the Secretary of State can order a deportation. So who
[18:27] Speaker 4: wins in that fight? And what the Court said was
[18:32] Speaker 4: that this was the First Amendment, plain and simple discrimination.
[18:37] Speaker 4: It was designed to intentionally chill protected speech, to create
[18:42] Speaker 4: the environment of fear regarding pro Palestinian views, so that
[18:48] Speaker 4: people wouldn't voice the opinions because they knew they could
[18:50] Speaker 4: get deported if they voice these opinions. And so if
[18:53] Speaker 4: the Court said that that was unacceptable and that what
[18:57] Speaker 4: needed to happen moving forward is because it would violate
[19:01] Speaker 4: not just the First Amendment but the Administrative Procedure Act,
[19:04] Speaker 4: is that there needed to be clear guidelines on whatever
[19:08] Speaker 4: is it isn't acceptable that that would be what could
[19:12] Speaker 4: they be potentially be implemented in a future case. And
[19:15] Speaker 4: of course those clear guidelines could be challenged. But this
[19:18] Speaker 4: idea that the Secretary of State could just without any warning,
[19:22] Speaker 4: find speech not acceptable and revoke your visa without any
[19:26] Speaker 4: clear guidance he viewed as unacceptable and violatives of the
[19:30] Speaker 4: First Amendment. And then there was a lot of, of course,
[19:34] Speaker 4: very high minded rhetoric about the First Amendment and democracy
[19:38] Speaker 4: and then protection of rights, etc. But at the end,
[19:41] Speaker 4: this is the basic framing of the opinion. And so now,
[19:44] Speaker 4: of course it will go up to the First Circuit
[19:47] Speaker 4: and then the Supreme Court to try to figure out
[19:49] Speaker 4: what's actually going to win in this battle between the
[19:53] Speaker 4: First Amendment and the rights of people to speak in
[19:55] Speaker 4: America about views, whether their views that are popular or
[19:59] Speaker 4: not popular, as long as they're not actually doing anything
[20:03] Speaker 4: else other than just speech versus the Secretary of States
[20:07] Speaker 4: rights under the Congressional laws to if you read the
[20:11] Speaker 4: text of those statutes, pretty much order anyone deported that
[20:15] Speaker 4: he thinks he should for the purposes of protecting US
[20:18] Speaker 4: foreign policy.
[20:19] Speaker 2: Yeah, so, how much of a setback is it for
[20:22] Speaker 2: the administration to exclaim that the Secretary of State has
[20:26] Speaker 2: the authority to revoke visas and green cards under this
[20:31] Speaker 2: rarely used provision.
[20:32] Speaker 4: It will be a major major problem if the higher
[20:38] Speaker 4: level courts say that that statute has written is too
[20:41] Speaker 4: vague to be constitutional, or that the way it's being
[20:46] Speaker 4: applied is nevertheless too vague. Meaning perhaps if you put
[20:50] Speaker 4: some policies with regard to a specific form of conduct,
[20:54] Speaker 4: then maybe you can apply it, but just without warning,
[20:57] Speaker 4: sort of having this catch all. The U don't know
[21:00] Speaker 4: if you're going to get caught in the catch all.
[21:02] Speaker 4: That might be too vague. So I think this has
[21:04] Speaker 4: the potential to be a dramatic setback for the Trump
[21:08] Speaker 4: administration and the Secretary of State. But we'll need to
[21:13] Speaker 4: see some higher courts doing this at the end of
[21:15] Speaker 4: the day, because just the district court decision alone isn't
[21:19] Speaker 4: going to ultimately change the outcome of these cases. So
[21:24] Speaker 4: once these cases get appealed and get to the Supreme Court,
[21:27] Speaker 4: that's where we're going to wait and see. But if
[21:29] Speaker 4: this ruling is maintained, it would be a dramatic alteration
[21:33] Speaker 4: to the policy that the Trump administration was trying to
[21:37] Speaker 4: put in place, which was to say, if you're not
[21:40] Speaker 4: careful with you know, the things you're saying in the
[21:44] Speaker 4: United States while you're here, and you're not a citizen,
[21:47] Speaker 4: you could subject yourself to deportation. So better to just
[21:50] Speaker 4: be here and be like a polite guest in someone's
[21:53] Speaker 4: home where you don't say anything about about anything controversial.
[21:57] Speaker 4: When you're visiting someone's home, you just kind of have
[21:59] Speaker 4: your cake and your wine and then you go.
[22:03] Speaker 5: Take it whine.
[22:04] Speaker 4: I like that combination, Yes, exactly. You just say, how's
[22:07] Speaker 4: the weather outside, it's any degrees, it's lovely, that kind
[22:11] Speaker 4: of thing, And that's pretty much the sense of what
[22:14] Speaker 4: you should be doing here if you're not a US citizen.
[22:17] Speaker 2: And in this one hundred and sixty one page scathing ruling,
[22:21] Speaker 2: the judge directly and sharply criticized President Trump and his
[22:27] Speaker 2: immigration policies, saying they were intended to strike fear into
[22:32] Speaker 2: non citizens and chill freedom of speech.
[22:36] Speaker 4: Look, the judge was very unhappy with the Trump administration.
[22:41] Speaker 4: The judge was very unhappy with the arguments that were
[22:43] Speaker 4: being made about non citizens not having the same First
[22:47] Speaker 4: Amendment rights as US citizens, which, by the way, is
[22:50] Speaker 4: a undecided issue in federal law. I would not say
[22:54] Speaker 4: that that's a decided issue, And in fact, the last
[22:58] Speaker 4: real decision on that, which was a nineteen fifty two
[23:01] Speaker 4: case called Heresiatis versus Shaughnessy, which had to do with
[23:04] Speaker 4: membership in the Communist Party, went against the First Amendment
[23:09] Speaker 4: rights of foreign nationals. And so from the standpoint of
[23:13] Speaker 4: thinking that it's a slam dunk that foreign nationals have
[23:16] Speaker 4: the same First Amendment rights as US citizens, that's not
[23:20] Speaker 4: exactly true, and we'll need to see how the court
[23:22] Speaker 4: deals with it. But nevertheless, this judge just thought that
[23:26] Speaker 4: this was being implemented in a way that was just
[23:30] Speaker 4: unconscionable to the court. And so the Court definitely, in
[23:33] Speaker 4: those one hundred and sixty pages, decided to express itself
[23:37] Speaker 4: and its frustration very openly and was putting, you know,
[23:41] Speaker 4: notes in that the Court had received in the past
[23:44] Speaker 4: and writing notes back to people. It was very personal, obviously,
[23:48] Speaker 4: decision for this judge, and so we'll wait to see
[23:52] Speaker 4: if the appellate courts think that makes it more or
[23:55] Speaker 4: less persuasive moving forward.
[23:58] Speaker 2: And I've never seen anything quite like this in a
[24:00] Speaker 2: judge's opinion. At the start of the judge's opinion, before
[24:05] Speaker 2: the title of the case, it began with words taken
[24:09] Speaker 2: from an anonymous postcard threatening the judge that had been
[24:13] Speaker 2: sent to him in June, and it was a duplication
[24:15] Speaker 2: of the note in this block printing quote Trump has
[24:20] Speaker 2: pardons and tanks, what do you have? And then the
[24:23] Speaker 2: judge typed his response beneath it, dear mister or miss
[24:28] Speaker 2: anonymous alone, I have nothing but my sense of duty.
[24:32] Speaker 2: Together we the people of the United States, you and
[24:35] Speaker 2: me have our magnificent Constitution. Here's how that works out
[24:40] Speaker 2: in a specific case. And then the opinion followed. Does
[24:44] Speaker 2: that change the way in a pellet court will assess
[24:47] Speaker 2: this decision?
[24:49] Speaker 4: I think the problem is this, all of the federal
[24:52] Speaker 4: judges grow up reading these great decisions written by other judges,
[24:58] Speaker 4: where you know, you have a learned or a judge
[25:00] Speaker 4: posner who puts some rhetorical flourishes in cases. And people said,
[25:06] Speaker 4: they those are the famous judges, and they make their mark.
[25:09] Speaker 4: And so every judge wants to add rhetorical flourishes to
[25:13] Speaker 4: their case. And you know, sometimes the judges are very upset.
[25:17] Speaker 4: This judge is clearly very upset here. I think, personally
[25:21] Speaker 4: not that I want to be a judge anytime soon,
[25:23] Speaker 4: but if I were a judge, I think the most
[25:25] Speaker 4: effective judges are the ones that do not make it
[25:28] Speaker 4: look like in any way they're taking any of this personally,
[25:32] Speaker 4: and they're just basically printing out a decision the same
[25:35] Speaker 4: way chat GPT would do it, or you know, Microsoft
[25:39] Speaker 4: co pilot or something very impersonal, but just to lay
[25:42] Speaker 4: out the fact. And when somebody reads those in an
[25:46] Speaker 4: appellate court, they say, wow, that's a very thoughtful judge.
[25:49] Speaker 4: Clearly this judge was just trying to get it right.
[25:52] Speaker 4: Those decisions tend to have much more difference given to
[25:56] Speaker 4: them than the ones where there are these larger rhetorical fishes.
[26:01] Speaker 4: Although when you survive them, if you get those decisions upheld,
[26:06] Speaker 4: then those do become the famous decisions of all time
[26:09] Speaker 4: that get cited to students, that people read them. So
[26:12] Speaker 4: it kind of is a gamble. But this is why
[26:15] Speaker 4: those types of decisions get issued.
[26:18] Speaker 2: So we'll keep watch and see what the First Circuit
[26:21] Speaker 2: thinks of this opinion by Judge Young. Stay with me,
[26:25] Speaker 2: Leon coming up next. After a four year freeze, dreamers
[26:29] Speaker 2: will be able to submit DACA applications again. I'm June
[26:34] Speaker 2: Grosso and you're listening to Bloomberg. About half a million
[26:38] Speaker 2: so called dreamers live and work in the United States,
[26:42] Speaker 2: without fear of deportation. That's because of the Deferred Action
[26:47] Speaker 2: for Childhood Arrivals Program, or DACA, first launched in twenty twelve.
[26:52] Speaker 2: Data offers protections from deportation and work eligibility to immigrants
[26:57] Speaker 2: known as dreamers who arrived in the US as children
[27:00] Speaker 2: and we're no older than thirty when it was set up.
[27:04] Speaker 2: Legal battles over the Obama era program have stretched back
[27:08] Speaker 2: to the first Trump administration's attempt to end the protections.
[27:12] Speaker 2: DOCA has been closed to new applicants since twenty twenty
[27:16] Speaker 2: one while litigation played out, but now, in order to
[27:20] Speaker 2: comply with the court order, federal immigration officials have revealed
[27:24] Speaker 2: plans to reopen the DOCA program to new applicants. I've
[27:28] Speaker 2: been talking immigration law attorney Leon Fresco of Honda Knight. Leon,
[27:33] Speaker 2: tell us how we got here.
[27:35] Speaker 4: So here's what happened. So DOCA has been under a
[27:38] Speaker 4: nationwide injunction because of a lawsuit filed by the State
[27:41] Speaker 4: of Texas in the US District Court in Brownsville. And
[27:44] Speaker 4: so the idea was we wouldn't ever get back to
[27:47] Speaker 4: DOCA ever again until the Supreme Court finally was going
[27:50] Speaker 4: to decide once and for all, is DACA legal or not.
[27:53] Speaker 4: But in the birthright citizenship case, which we've also talked about,
[27:58] Speaker 4: the Supreme Court, although it didn't decide the birthright citizenship issue,
[28:02] Speaker 4: that issue is going to come up now. The Court
[28:05] Speaker 4: did say, you can't have a nationwide injunction. Well, guess
[28:09] Speaker 4: what happened the State of Texas in the case of
[28:12] Speaker 4: Texas versus the administration now Trump, but before Biden that
[28:18] Speaker 4: the state of Texas had a nationwide injunction against DAKA. Well,
[28:22] Speaker 4: you can't have a nation wide injunction. And the story here,
[28:25] Speaker 4: So the US government has agreed you can't have a
[28:27] Speaker 4: nationwide injunction. The Texas Court cannot have a nation wide injunction.
[28:32] Speaker 4: There's going to be a hearing again later this week
[28:34] Speaker 4: depending on the shutdown. So if the court goes forward
[28:37] Speaker 4: with this hearing, even the federal government has said that
[28:40] Speaker 4: the injunction can only basically apply to Texas, which means
[28:44] Speaker 4: for the other forty nine states, there will have to
[28:47] Speaker 4: be a process that reopens up sooner rather than later
[28:50] Speaker 4: where foreign nationals who are eligible for DAKA can now
[28:54] Speaker 4: begin to ask for DAKA again. What will be very
[28:57] Speaker 4: interesting to see is how many people actually do come
[29:00] Speaker 4: forward knowing that if DACA is invalidated, then they become
[29:05] Speaker 4: sitting ducks quote unquote, in the sense that the administration
[29:09] Speaker 4: would say, oh, well, thank you for applying for DACA.
[29:12] Speaker 4: The court has viewed this to be illegal, but thank
[29:14] Speaker 4: you for letting us know where you live and where
[29:17] Speaker 4: you are, and so now you're in deportation proceeding. So
[29:21] Speaker 4: that's the risk people will have to take. But by
[29:24] Speaker 4: the same token, if people get protected by DACA, and
[29:28] Speaker 4: if the Trump administration doesn't want to eliminate DACA, then
[29:31] Speaker 4: presumably they might actually end up being here legally. So
[29:35] Speaker 4: we'll have to wait and see. You have not actually
[29:37] Speaker 4: heard a ton of rhetoric from the Trump administration talking
[29:42] Speaker 4: about deporting people who are in the DACA program. You've
[29:46] Speaker 4: definitely heard it about the people who came during the
[29:49] Speaker 4: Biden administration. But remember that anyone who is on DAKA
[29:54] Speaker 4: was someone who was here since at least two thousand
[29:57] Speaker 4: and seven. So from that endpoint, we're talking about almost
[30:01] Speaker 4: twenty years that these people have been in the United States,
[30:04] Speaker 4: and they came as kids. You have not actually heard
[30:07] Speaker 4: the Trump administration talk about deporting these individuals, and so
[30:11] Speaker 4: it is possible that this program, it is determined to
[30:15] Speaker 4: be legal, might not be eliminated by the Trump administration.
[30:18] Speaker 4: Will have to wait and see.
[30:20] Speaker 2: But the first Trump administration did try to eliminate DACA, right.
[30:24] Speaker 4: Correct, They did try to eliminate DACA, and the Roberts
[30:27] Speaker 4: Court said at that time that the manner in which
[30:30] Speaker 4: they tried to do it was unlawful. But this court,
[30:34] Speaker 4: this Trump administration has basically been letting the court cases
[30:40] Speaker 4: travel as such. And while it definitely hasn't done anything
[30:44] Speaker 4: to help the DOCA recipients, it hasn't tried to scuttle
[30:50] Speaker 4: them in the kinds of ways that you might think
[30:54] Speaker 4: it might try to do in terms of individual revocations
[30:58] Speaker 4: or going to people's houses or things of this nature.
[31:01] Speaker 4: So we'll just have to wait and see. I'm not
[31:02] Speaker 4: saying that there couldn't be an order coming anytime that says, look,
[31:07] Speaker 4: we've changed our mind on DACA and we want it
[31:09] Speaker 4: all gone. But at this point, what they said is
[31:13] Speaker 4: the injunction should be limited to just Texas, and we
[31:17] Speaker 4: understand we're going to need to reprocess people's daca's cases again,
[31:22] Speaker 4: and so we'll have to wait and see what happened
[31:24] Speaker 4: from there.
[31:25] Speaker 2: So at the end of June, there were more than
[31:28] Speaker 2: five hundred and twenty five thousand people enrolled in DACA,
[31:32] Speaker 2: nearly eighty eight thousand of them live in Texas. So
[31:36] Speaker 2: Texas dreamers are not covered by this, so they're going
[31:41] Speaker 2: to have less rights than dreamers in other parts of
[31:44] Speaker 2: the country. How does that make sense?
[31:47] Speaker 4: Correct? I mean that will be a problem, but that
[31:49] Speaker 4: actually has happened a lot in immigration law. So for instance,
[31:53] Speaker 4: there are decisions to this day where if you live
[31:56] Speaker 4: in the Ninth Circuit, the law on asylum will be
[32:00] Speaker 4: better for you than if you live in the Fifth Circuit.
[32:02] Speaker 4: So that does exist in these contexts until the Supreme
[32:05] Speaker 4: Court harmonizes something nationwide, which sometimes they do and sometimes
[32:10] Speaker 4: they don't do. Never is it usually this disparate in
[32:14] Speaker 4: the sense that you can actually qualify for a document
[32:18] Speaker 4: in one state and you cannot qualify for a document
[32:21] Speaker 4: in another state. That's a very rare scenario that's happening
[32:24] Speaker 4: now because of the nationwide injunction issue. But what's interesting
[32:28] Speaker 4: is the way addresses work for the purposes of immigration
[32:33] Speaker 4: forms is you're not tied to Texas for the rest
[32:37] Speaker 4: of your life. If you legitimately move and you occupy
[32:41] Speaker 4: a residence in another state, as opposed to, you know,
[32:45] Speaker 4: actually lying about your address, you can't do that. You
[32:48] Speaker 4: cannot lie about your address. But if you were to
[32:50] Speaker 4: move to California or wherever, then you might actually be
[32:55] Speaker 4: eligible for those DOCA documents even though you were originally
[32:59] Speaker 4: in tech. So people will have decisions to make there
[33:02] Speaker 4: as well.
[33:03] Speaker 2: So, now this is the oddest deportation case I've heard of.
[33:10] Speaker 2: I'm sure you've heard of ones that are even more unique.
[33:14] Speaker 2: But the Des Moines School superintendent Ian Roberts is resigning
[33:20] Speaker 2: while he battles his federal case for deportation. He was
[33:24] Speaker 2: arrested by ICE agents in connection with the previously unreported
[33:29] Speaker 2: final order of removal an immigration judge issued in May
[33:33] Speaker 2: of twenty twenty four. He was hired as the superintendent
[33:38] Speaker 2: in May of twenty twenty three. I'm curious as to
[33:41] Speaker 2: how that could happen.
[33:43] Speaker 4: The way basically these things happen is there's a bunch
[33:49] Speaker 4: of i would say, identity issues in the immigration world,
[33:52] Speaker 4: but the only one that really matters is whatever identity
[33:55] Speaker 4: you have that's tied to your actual fingerprints in life.
[33:59] Speaker 4: So this individual Ian Roberts has an identity as a
[34:05] Speaker 4: Guyanese non citizen, so he's not a citizen of the
[34:08] Speaker 4: United States. He's from Guyana. And that this individual Ian Roberts,
[34:14] Speaker 4: with these fingerprints has a final order of removal because
[34:18] Speaker 4: this e of Roberts did not show up the court,
[34:21] Speaker 4: and so when you don't show up the court, you
[34:23] Speaker 4: have a final removal hearing. Now there's a person also
[34:28] Speaker 4: called Ian Roberts, who claimed in his immigration paperwork that
[34:33] Speaker 4: he gave to the Des Moines Public Schools that he
[34:36] Speaker 4: had resolved his immigration issues and that he had legal status,
[34:41] Speaker 4: and so the school didn't run him through what's called
[34:44] Speaker 4: the e Verify system, which is the system that basically
[34:48] Speaker 4: from the Homeland Security Department can tell you once and
[34:52] Speaker 4: for all who is the person you're dealing with. They
[34:54] Speaker 4: didn't do that. They used what's called the simple A
[34:57] Speaker 4: nine form document, which is the only thing you're actually
[35:02] Speaker 4: required to do as an employer. The everify is an
[35:05] Speaker 4: extra thing you can do. But the I nine paperwork
[35:09] Speaker 4: is simply the person fills out the paperwork and they
[35:12] Speaker 4: give a driver's license and a social Security number. And
[35:16] Speaker 4: if they do that and they claim they're a US citizen.
[35:19] Speaker 4: Then end the story, the employer really can't do anything
[35:23] Speaker 4: about it if that person gives you a driver's license
[35:27] Speaker 4: and a Social Security number and says they're a US citizen.
[35:30] Speaker 4: So the point is that that's the belief of what
[35:33] Speaker 4: Ian Roberts told the Des Moines Public Schools, and so
[35:37] Speaker 4: that's why they hired him. And then that the school
[35:39] Speaker 4: system didn't do a further investigation on this, And so
[35:44] Speaker 4: now Roberts resigns from the school board or from the
[35:49] Speaker 4: school system because this order of deportation ends up getting
[35:53] Speaker 4: executed against him. And Roberts is saying, I thought I
[35:58] Speaker 4: had fixed my city situation, and he's going to try
[36:01] Speaker 4: to make that argument an immigration court, but I don't
[36:04] Speaker 4: know how likely he is to prevail here.
[36:06] Speaker 2: And Liam, before I let you go, the Department of
[36:09] Speaker 2: Justice has just announced the creation of a new office
[36:13] Speaker 2: within the Civil Division that has implications for immigration. So
[36:18] Speaker 2: there used to be five branches.
[36:20] Speaker 4: What now There was an Immigration branch was the branch
[36:23] Speaker 4: I was the head of. There was a Federal Programs branch,
[36:27] Speaker 4: There was an appellate branch. There was just a normal
[36:29] Speaker 4: civil litigation branch, and a consumer protection branch. That Consumer
[36:34] Speaker 4: Protection branch has been eliminated and it's been replaced by
[36:38] Speaker 4: something called the Enforcement and Affirmative Litigation branch. And what's
[36:42] Speaker 4: interesting is that the Affirmative Litigation branch is basically going
[36:46] Speaker 4: to be used to sue states and cities about both
[36:50] Speaker 4: immigration and about transgender issues. And so they're basically going
[36:55] Speaker 4: to be looking across the country for are any transgender
[37:00] Speaker 4: or other type issues, or any sanctuary city, or any
[37:04] Speaker 4: scholarships being given to foreign nationals that are not being
[37:07] Speaker 4: given to citizens or anything like that, and they're just
[37:11] Speaker 4: going to be scouring the waterfront looking for any person
[37:14] Speaker 4: to sue, or any official or any city or any
[37:18] Speaker 4: state that they believe is violating the laws with regards
[37:23] Speaker 4: to both immigration and with regards to transgender issue.
[37:27] Speaker 2: New priorities for this Department of Justice. Thanks so much, Leon.
[37:31] Speaker 2: As always, that's Leon Fresco, a partner at Honda Knight.
[37:35] Speaker 2: And that's it for this edition of The Bloomberg Law Show.
[37:38] Speaker 2: Remember you can always get the latest legal news on
[37:41] Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
[37:45] Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law.
[37:50] Speaker 2: And remember to tune into the Bloomberg Law Show every
[37:53] Speaker 2: weeknight at ten pm Wall Street Time. I'm Jim Grosso
[37:57] Speaker 2: and you're listening to Bloomberg

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