August 5, 2025 • 41 mins
Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the 9th Circuit ruling upholding a judge’s order barring racial profiling by ICE. Debbie Kaminer, a professor of law at Baruch College, discusses workplace accommodations for religion. June Grasso hosts.
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Episode Transcript
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
Los Angeles has been a hotspot for the Trump administration's
immigration efforts, with accusations that ICE agents were using racial
profiling and other illegal tactics.
Speaker 3 (00:21):
The mask men in unmarked cars, no license plate, no
real uniforms, jumping out of cars with rifles, and snatching
people off the street, leading a lot of people to
think maybe kidnappings were taking place.
Speaker 2 (00:36):
That was Mayor Karen Bass on ABC's This Week. A
federal judge found last month that there was a quote
mountain of evidence that ICE agents tactics were violating the Constitution.
She issued an order barring agents in LA from stopping
and questioning people on the basis of race or ethnicity,
(00:57):
speaking Spanish or English with an accent, the type of
work they do, or their presence at a particular location
like a car wash, a tow yard, or an agricultural site,
and the Ninth Circuit Court of Appeals has unanimously backed
that order, leaving the ball in the administration's court. My
(01:18):
guest is an expert in immigration law. Leon Fresco, a
partnered Holland and Knight. Leon explained what the district judge
ordered in the LA case.
Speaker 1 (01:27):
Well, the original case involved the challenge to something that
was called Operation at Large, which was a federal immigration
enforcement initiative in Los Angeles. There were these ICE contact
teams targeting locations such as car washes and home depots
and other places believed to employ undocumented workers. And there
(01:48):
was a lawsuit claiming that these roving patrols detained individuals
without reasonable suspicion, violating the Fourth Amendment, and the District
Court at health on Julia Lae Eaven that the plaintiffs
were likely to succeed improving unconstitutional seizures. So the judge
restricted federal agents from conducting these ICE rays and stops
(02:11):
without a reasonable suspicion. So what that means is that
instead of walking around and trying to say this person
looks like somebody that's not here legally, which has a
sort of dubious application that people get worried about because
they say, well, how are you making those decisions? What
(02:32):
they're trying to do is convert ICE back into a
list sort of agency where it says, we know today
we're going to go after person one, person two, person three,
person four, person five, and then they go and they
look for these people because they know they're here undocumented,
rather than just grabbing people in the middle of the street.
(02:53):
And so that's really the end goal of this lawsuit.
And so yes, there are times where they'll still be
able to pick people up because they'll have a reasonable
subspicion for another reason other than they're on a list.
But mostly this limits ICE to this sort of list
based enforcement.
Speaker 2 (03:10):
And what was the government's argument at the Ninth Circuit when.
Speaker 1 (03:15):
The government appealed, They said two things. They said, first
of all, that the organizational plaintiffs and the case didn't
even have standing to bring the case, because organizational plaintiffs
were the ones bringing the case, you know, because if
you have an individual plane, if it's hard because you say, well,
what are the odds that you particularly are going to
be grabbed by Ice, so you don't really have standing
(03:37):
to make the claim. So instead there were these organizational
planiffs who brought the case. And they also said that
in general they weren't violating the Fourth Amendment because they
have the ability and then the right to enforce immigration law.
They have the right to question anybody about their lawful
presence in the United states at any times what the
(04:00):
statue permits them to do. The Ninth Circuit said two things. First,
that the organizational planets had standing because they showed that
these kind of roving patrols forced them to divert their
resources from instead of carrying out other missions of supporting immigrants'
rights in the community, they had to move to divert
the resources into dealing with these enforcement actions. So that
(04:23):
was the standing issue, and they said there was standing.
But they also said that with regard to these claims
about reasonable suspicion and force Amendment violations caused by ICE
officers roving around looking for people, they said that yes,
that does also seem to have a likelihood of success
enough that they would not say the District Court's ruling
(04:45):
it was a three zero decision, and so the court
basically allowed almost all of the ruling to take place,
except there was one line in the injunction that prevented
ICE from even asking individuals about their immigration reasonable suspicion.
That was say, they were allowed to still do that.
(05:06):
That was considered overbroad and problematic in terms of enforcement
and constitutional interpretation, but the rest of the injunction was
allowed to continue.
Speaker 2 (05:17):
So the judge rule that ICE can't attain people based
on their apparent race or ethnicity, So speaking Spanish or
accented English, or being at locations such as home depot
parking lots, what does constitute reasonable suspicion?
Speaker 1 (05:35):
Then the main thing that people who file this lawsuit
basically are trying to limit ICE is to say you
have to have some sort of knowledge of the person
you're looking for and of their immigration status before you
go looking for those individuals. So, for instance, if you're
(05:55):
at an immigration court, then you'll know if somebody has
that status or not, so then you can pay them
up after or if again, you're working off a list
of people who have lost their status that you know
from the Department of Homeland Security databases and you're going
to pick up those people at their work or at
their homes, you then have reasonable suspicion and you can
do that. And what the decision also allows is so,
(06:17):
for instance, let's say there's twenty undocumented people at a
work site that they know about because they have it
in their database, then they can ask, Okay, well, what
about the other people at this work site? I want
to see the paperwork for them, because then there's a
reasonable suspicion because you've already established that there's twenty undocumented
(06:37):
people at that work site, that the employer hires undocumented people.
But in terms of just randomly generating leads by going
to places and making these sort of facial decisions, I
am concerned about how this person looks or how they
present themselves, etc. That's the kind of thing that is
(06:59):
enjoying them this injunction.
Speaker 2 (07:01):
How much of a hindrance is this order to ICE, Well.
Speaker 1 (07:07):
It depends if you say how much of a hindrance
is it to their deterrent operations as opposed to their
removal operations. It's not really a deterrent at all to
their removal operations in the sense of ICE has pretty
sophisticated databases where it knows where most of the undocument
the people in this country are and where they live,
(07:29):
and ICE, if they want to, can go and pick
up as many people as it has detention space to detain,
and so there's never a shortage of people that ICE
can pick up on any given day to place and
detention given the limited detention space it has. But what
it does limit is ICE's ability to engage in the
(07:50):
kind of patrols that are designed to create a deterrent effect,
meaning people are nervous to remain here in the United
States because they think, oh, if I take a city bus,
or if I just go shopping, or if I'm taking
my child to school, I could be apprehended at any moment.
The design of those operations isn't to meet the quota,
(08:12):
so to speak. It's to instead create a deterrent effect
that tells people, if you stay here, you never know
what day is going to be the day you're apprehended,
so you should just return home. And so that's where
it's limiting the operation. Isn't that deterrent effect.
Speaker 2 (08:29):
So the government has two options. It can ask for
an onbink hearing to reconsider the panel's decision, or it
could ask the Supreme Court to stay the order. Do
you think it will do either of those things.
Speaker 1 (08:43):
I think the government has been quite aggressive in appealing
to the Supreme Court, so I do think the government
probably will not take the step of going to the
unbank Ninth Circuit because that will simply delay thing and
probably unlikely to be considered unbanked by the Ninth Circuit
unless they happen to get a perfect setup of the
twelve judges that would be picked for the unbound panel.
(09:05):
Then I mean, theoretically it could happen, but the odds
are not so great for that purpose. And they've been
getting better results in the Supreme Court with saying some
of these injunctions, and I could foresee the Supreme Court
lifting or staying parts of the injunction that limit ICE's hands.
I mean, I don't see them potentially taking away the
(09:28):
whole injunction, but I could see them giving Ice a
little bit more wiggle room here. And so I do
think they're going to try their hand there to see
if they can continue, because I think they view these
city roving operations as an important part of their deterrent force,
and so they really want to be engaging in these
(09:49):
and I don't think they'll give it up that easily.
Speaker 2 (09:51):
So during this hearing, the Ninth Circuit hearing, the judges
asked the government lawyer repeatedly whether the Trump administer has
set a quota of three thousand immigration arrests a day.
That number has been bandied about, and it started with
I believe Stephen Miller, White House advisor, the government lawyer
Yakovrov said he didn't know, and the judges said, okay,
(10:14):
submit a letter, and in the letter he said that
was incorrect, that there wasn't a goal of three thousand.
I mean, do you think there's a goal.
Speaker 1 (10:24):
I think the way they're trying to basically square the
circle is to say that there's not a memo or
a policy or anything in place where they don't hit
three thousand in a day. Something bad happens to somebody
at ice, or somebody's pay gets dogs or anything like that.
So they recognize, yes, people have said three thousand a day,
(10:47):
that is something that's been said in the media, but
there's not any operational context that actually requires three thousand
people to be arrested today. And the truth is there
goal is to detain as many people as they can
each day. I think three thousand is probably not a
policy in the sense that it has to hit three
(11:08):
thousand or something happens legally where somebody's heels responsible for
not hitting three thousand, So I think that's probably an
accurate statement. But the intent or the goal is to
detain as many people as possible. If that was six thousand,
they'd be happier than if it was four thousand, or
if it was two thousand, and So if the idea
(11:30):
behind this lawsuit is that these roving patrols are being
done to generate as many removals as possible, there are
as many detentions as possible, I don't think the administration
would dispute that. But the issue is do they have
this quota? And I think the quota would only bother
them from the standpoint that any law enforcement operation that's
(11:53):
not geared toward enforcing the law in that individual case,
but that's geared toward a larger quota, creates trouble with
regard to sort of the motives of the government in
how it's operating and how it's conducting law enforcement. Those
have been problematic cases and other contexts in the court.
But I think it's just fair to say there's not
(12:14):
a quota that is operationalized, but rather just a goal, Hey,
get as many people as you can in detention and
in deportation proceedings as humanly possible, and so the number
three thousand was a goal in terms of you should
be able to do this. But again, I think it's
fair enough to say that there's no legal consequences for
(12:36):
not hitting that number coming up next.
Speaker 2 (12:38):
I just agree that agents in Los Angeles won't impersonate
police officers to make arrests and homes. You're listening to Bloomberg.
We've been talking about the Ninth Circuit backing a judge's
order barring immigration agents in Los Angeles barring immigration agents
in the Los Angeles area from using racial profile filing
(13:00):
to detain in question suspected undocumented migrants. Well, in another
lawsuit challenging the constitutionality of ICE agents in LA impersonating
police officers or using other ruses to make home arrests,
ICE has reached a court approved settlement. Under the agreement,
ICE officers can't claim to be state or local law
(13:23):
enforcement or misrepresent the nature of their visit in order
to enter a home or persuade a resident to come outside.
I've been talking to immigration attorney Leon Fresco of Holland
and Knight. Leon explain what ICE officers were doing.
Speaker 1 (13:41):
This is sort of a larger issue, which is that
as the people in the immigration rights movement have become
very very successful in communicating messages of know your Right,
a lot of people in the immigration community have understood
that ICE can be refused entry into a home unless
they have a judice warrant. So if they have an
(14:01):
administrative warrant, or if they just say can you let
me in, you're totally within your right to say no,
I don't want to let you in, and I can't
go in. If I goes in, then whatever operation they
did is invalid under the law once it eventually gets
to a court. And so a lot of individuals know
this now. So ICE has had to operate in this
(14:21):
sort of and this has been happening for many years.
This is not a recent thing, but the settlement is
recent where they try to find ways around these limitations.
So they try to get people to come outside. They say, hey,
your car is broken, or hey I need some directions,
can you come outside or whatever, and then once they're
outside then they can conduct their legal action. Or they
(14:42):
say they're police, can they be let inside? And if
people think they're police but not ICE, then they let
them inside. And so the idea of this lawsuit was
to say ICE has to not do those tactics of
giving some sort of not whole truth or or potent
deviation from the truth in what their operations are. They
(15:03):
have to say that their ICE both in their clothing
and in their verbiage, and so that when they are
engaging in those operations. Now under this settlement, then the
individuals will know this is ICE. ICE is strength enter
the home. I can refuse it unless they have a
judicial warrant.
Speaker 2 (15:20):
Yeah, so they have to have a warrant that's signed
by a judge, and those are hard to get.
Speaker 1 (15:25):
It's not that they're hard to get, but it's time
consuming because judges only have so many things they can
do on a given day. And if ICE is trying
to get one of those warrants, they have to set
up the paperwork that says, here's this person, here's how
we know they entered illegally, or they entered legally but
they've overstayed their status, and then you wait for the
(15:46):
judge they issue the warrant, and then the judge issues
the warrant. So all of this takes time, and it's
time that ICE doesn't want to be spending when it
can just write up an administrative warrant on their work
processing documents. So they try to do that, but if
they're not successful, then they have to go and get
a warrant from a judge, meaning also they have to
get the Department of Justice lawyer involved, and those lawyers
(16:10):
want to be doing other things. They don't necessarily want
to be doing this, although they're being ordered to do
more of this, and so that's the sort of barriers
to entry to get those warrants. So it's not hard legally,
but you just have to get a lot of people
interested in terms of the judge and the Department of
Justice and others in issuing the warrant. And so that
takes fine and resources.
Speaker 2 (16:31):
And so you mentioned clothing identifying them as ice. Do
ICE agents often have clothing that says police instead of ice.
Speaker 1 (16:41):
They for a number of years have been engaging in
these operations where what the front of their shirt would
say was the word police. And that did and they said, well,
police has this sort of general meaning of a person
who enforces law. So we are correct to be able
to say police. We don't have to say ice. We
just have to say we are people who enforce the laws.
(17:04):
But now in this settlement I can't do that. It
actually has to say it is ice, not just that
it's believed.
Speaker 2 (17:11):
One more question on clothing ICE agents. Whenever you see
video of them or photos they're wearing masks. Is there
a problem with them wearing masks as well? I mean,
I take it they're wearing masks to conceal their identity.
Speaker 1 (17:26):
Right at the moment, this mask issue is one that's
being hotly debated in the Congress for this upcoming appropriations bill.
They're trying to see if they can actually get some
language in there that maybe the Republicans will agree to
with regard to people being able to identify themselves so
that people aren't worried whether these are fake ICE officers
(17:46):
who are actually criminals trying to take advantage. But at
the moment, there isn't any court order or anything that
says that the agents can't wear masks. The agents wear
masks because they don't want people coming to their homes.
Now in this social media you could say, oh, that's
ICE agent Fred Smith who lives on one one one
Smith Lane, and so go to their house and yell
(18:07):
at them. They're trying to avoid that scenario. That is
a scenario that whether you agree with immigration enforcement or not,
the people that I don't deserve to have their houses
raided by angry people in the community. And so it's
one of those terrible situations all the way around. But
the wearing a mask, there's going to need to be
(18:28):
I think most people agree some sort of limiting principle
here where there has to be some identification that's done
and shown that says I'm an ice agent. So maybe
the person wears a mask, but during the immediate apprehension says,
here's my badge and I'm an ice agent, and they
show it, and then that follows the problem. But I
(18:50):
think the current way where someone just is completely unidentified
wearing a mask and putting someone in a van, I
think if that continues, you will see courts getting involved,
and I think you'll even see Congress getting involved, because
those are not the kind of images that one typically
associates with normal law enforcement. You want the law enforcement
(19:13):
to be more transparent than that, and so we will see.
But the concerns are well understood, they're well justified. But
there has to be some principle where at least I
think a badge is shown or something happens so that
people can know, Okay, this is a nice agent that's
doing this operation.
Speaker 2 (19:29):
Let's turn now to visas to get into the country.
The State Department is proposing requiring applicants for business and
tourists visas, some applicants to post bonds up to fifteen
thousand dollars. Who are they targeting here?
Speaker 1 (19:46):
So this is a pilot program, And what they're trying
to do is they are worried that there are certain
countries that have very high over stay rates. That means
that a visa gets issued and the person doesn't go
home and they instead stay in the the United States.
And so what they're trying to do is to create
a financial disincentive for people to do that, which is
(20:06):
a bond, meaning you put up this money and you
don't get it back if you don't go home. And
so right now they're doing about two dozen countries that
have a ten percent or higher overstay rate. Most of
these are African countries. And what they're going to say
to the State Department is charge these bonds and if
only if they can put up the bond, will they
get the visa. Now, this is an interesting concept. This
(20:29):
is actually a concept that even when I was a
staffer back on the hill, you know, a long long
time ago, many many many years ago, I actually was
in favor of this concept. But in a slightly different way,
meaning that a lot of what the State Department does
is guess work, trying to guess is someone going to
(20:50):
overstay or not. They really don't have any idea. They're
just trying to do the best they can under some
challenging circumstances. And so I had pushed the State Department
personally as as baff Director of the Immigration sub Committee,
to do these bonds, but in a way where it
basically what would happen was if someone was refused a visa,
they could overcome the refusal by putting up a bond
(21:13):
and say, hey, if you really think I'm going to overstay,
you're fifty thousand dollars saying I'm not going to oversay.
And the State Department had traditionally and by traditionally, I
need at least the last two three decades take in
the view, there was no bond you could make people
pay that would substitute from their desire to overstay. So
if you made the bond twenty thousand, fifty thousand, they've
(21:36):
just put up the money and overstay and they don't care.
And so it appears that Trump administration does not agree
with that. They so they're putting up the bond. But
the issue is who's going to get charged this bond.
So is this bond and this is we're gonna have
to wait and see. Is this bond going to get
charged to people who would otherwise have already been approved
(21:59):
and now they have to pay a bond? Or is
this going to be the way I wanted it, which
was someone whose case was iffy, who you thought could
be approved, but you're a little nervous, so you deny it.
Now you can put a bond in and you can
approve the visa because now they can pay and show
that they're serious about going back. And so if it's
(22:20):
this second concept, I think that's actually an improvement from
where we were before. But if it's the first concept,
then it's useful for your listeners to know that getting
a visa from any of these countries in Africa is very,
very hard. You have to be extraordinarily wealthy in order
to get a visa, so that your overstay risk is
(22:42):
almost zero in that context. And so just to make
those people have to pay a bond when it was
clear they were already going to go home seems excessive
and unnecessary. So that's what We're going to wait and
see is what context, because it's still going to be
optional for the individual consular officials to decide whether the
bond would be zero, five, ten thousand, or up to
(23:04):
fifteen thousand that's the highest they can charge, and who
they will give the bonds too. So we'll have to
wait and see. But I do think if there was
a scenario where this could be applied to people who
otherwise wouldn't have been permitted to travel, I'm not so
against it, but I think we'll have to wait and see.
Speaker 2 (23:22):
There. Does it involve a lot of paperwork? Does this
put additional burdens?
Speaker 1 (23:27):
Well, this is going to be a brand new thing
for the state Department. Absolutely. They don't have the infrastructure
in place to a collect the money, be hold the money,
see pay back the money, the determine if you actually
earned your bond, meaning you came back. And then the
question also is what does this mean. So for instance,
a visitor visa, sometimes it's a ten year visa and
(23:50):
it allows you to go back and forth as many
times as you want during those ten years. So the
question is you have to keep putting up the fifteen
thousand every single time you enter, you only have to
do it the first time and show that you went
back the first time. Because if you only have to
do it the first time, then somebody can become very
creative and say, let me just you know, come back
(24:10):
the first time, but then the second time I enter
is the time I can overstay. So I don't know
what they're going to do about all of that. I
don't think they quite know either, but they're going to
have to work out all of those issues.
Speaker 2 (24:21):
The administration is also tightening visa requirements for certain people.
We talked about them denying visa to the Venezuelan Little
League team, so now they're going to deny female transgender
athletes petitions for extraordinary ability visas. First of all, what
is an extraordinary ability visa?
Speaker 1 (24:42):
I have a lot of these. So for instance, if
you're going to watch now upcoming the US Open tennis
tournament in New York, I know a lot of people
love that. I have. Any tennis players that are my
clients that come in on these extraordinary ability visas, and
what happens is you basically show hey immigration service. These
tennis players are at the top of their field. They're
(25:03):
in the members of either of the ATP, which is
the men's tournament or the WTA the women's tournament. And
because they've reached the top let's say one hundred ranking,
that means they're one of the top hundred tennis players
in their field. So they have extraordinary ability. So you
should give them a visa, and that visa lasts for
three years, and so they can then come in the
(25:24):
country and play in the tennis tournament for three years,
or it could be the same thing for Formula one
drivers or for golfers. You get the pictures the points
of those visas. What they're trying to say is, suppose
you end up being one of the best female tennis
players in the world, but you are born a man.
(25:44):
Could you get one of these visas? And what they're
saying is, no, we won't give you one of those
visas if we can determine that you're coming to America
to play in the female part of the US Open,
but you are born a man. Now, I don't know
at the moment who that would apply to. I mean,
I know theoretically, but what I'm saying is, at the moment,
I don't know if there is a specific athlete who
(26:08):
was born a man who's trying to come into the
United States to compete in an event like this in
the female category. But with the Olympics coming up, perhaps
the concern is maybe this could happen, even though the
Olympic Committee said they will not allow people who are
born men to compete in the women's events. But nevertheless,
this is now a clear line in the sand saying
(26:30):
don't even try to get the visa because we won't
allow it.
Speaker 2 (26:33):
At some point, when you know international organizations are thinking
about where their next tournament or their next event should
take place, are they going to start considering, well, if
we go to the US, a certain number of people
are not going to be let in for various reasons.
(26:53):
I mean, they also blocked the Cuban volleyball team from
playing in Puerto Rico.
Speaker 1 (26:59):
I think there's gonna have to be long term analyses
here because obviously any new events that get scheduled in
the US will be beyond twenty twenty eight. And so
the question is do people want to assume that whatever
the immigration policies that are in the existence now will
be in existence past twenty twenty eight. Those are all
the kinds of gambling and speculation that people put in place.
(27:23):
I think if people thought that, then I do think
there would be a likelihood you wouldn't see as many
events scheduled in the United States in the future. But
if people think that the immigration policy will revert back
to some more moderate tones, then they might not care
and they might schedule these events in the United States
because obviously it's very lucrative to hold these events in
(27:45):
the United States, and they have the infrastructure and the
stadiums and everything else. But I think that those determinations
we're gonna have to wait and see. But I mean,
I think we're going to see pretty soon with the
World Cup coming up next summer. Are those stadiums full
or are they emptied? Did people travel, were they allowed
to travel? Do we hear stories of people not getting in?
(28:06):
And then obviously twenty twenty eight at the Olympics, we're
athletes banned from competing. And if we really start to
see that, or we're coaches or families or fans of
the team banned from entering, the more we see that,
then the more likely that even if there's a different president,
people will just say, look for a little while, we
need to calm ourselves from the US until we redetermine
(28:30):
the landscape, and then we could decide to come back in.
Speaker 2 (28:33):
Our immigration policy certainly does change from administration to administration.
Thanks so much, Leon. That's Leon Fresco of Holland and
Knight coming up next. When religious accommodations in the workplace
impose a higher burden on coworkers, you're listening to Bloomberg.
(28:54):
There's been a line of lower court decisions following the
Supreme Court's twenty twenty three rule that employers under Title
seven of the Civil Rights Act need to be the
higher bar to refuse a religious accommodation as an undue hardship.
Could the Trump administrations loosening accommodation rules for religious employees
(29:15):
place a higher burden on their coworkers. Joining me is
Beru College professor Debbie Kamener, who's been studying this. Debbie,
tell us about your paper.
Speaker 4 (29:25):
So what I'm actually trying to send this up right
now is an article on Title seven, which requires religious
accommodation in the workplace. And there was a case Grass
versus the Joy It came down two years ago, and
it was a sort of weird Supreme Court case because
we have the Roberts Court, which is so pro religion
(29:46):
and also FAU pro business. And when you think about
religious accommodation in the workplace, in many ways, what it
does is it pits religious rights against business rights because
if you have more religious acommodation, you would need to
give religious employee time off to celebrate their religious holiday.
Then the employer has to bear the cost. What the
(30:09):
court did in Graph is they did this very strange
thing where they wrote the decision in a way where
more accommodation is required. But it's possible for both lower
courts and employers to now shift that increase the commodation
costs to coworkers. So instead of the employer having to say,
pay somebody over time to work the extra hours or
(30:32):
suffer a loss and productivity in the workplace, what the
employer does is they just stay to coworkers, sorry, you
have to work the undesirable shifts of the religious employee.
So what I've been looking at is what has been
happening since Graph came down two years ago, and what
are the lower courts and then the employers doing, and
(30:53):
have they actually been shifting this increased the accommodation costs
to co workers, and in many instances it seems like
they are. So it seems like what's happening isn't these
co workers who are bearing the cost of the accommodation
and there's the party with the least power. So I
have been finding that to be very, very problematic.
Speaker 2 (31:15):
How have the courts been handling these issues?
Speaker 4 (31:18):
So the courts what they used to say is they
used to say that anything more than a deminimous or
minimal cost was not required. So if for example, a
religious employee regularly needed their status off, that in many
instances would be more than a deminimous cost because it
(31:39):
would mean that a religious employees co workers would have
to work that undesirable weekend shift on a regular basis.
The cases I do want to emphasize they're just starting
to come down. But courts are now requiring the lower
courts this higher level of accommodation, and they seem very
unconcerned earned with an impact on coworkers. What they're saying
(32:03):
is that unless the coworkers are impacted in a way
that there's a direct financial cost to the business itself. So,
like you know, the co workers are very annoyed that
they have to work. The religious employees shifts, so you know,
they're letting it be known, and they're morale issues and
it's leading to efficiency issues and productivity issues. That could
(32:26):
be an undue hardship. But if it's just an impact
on coworkers alone and the co workers, particularly a very
powerless coworker, you know, think about somebody maybe like stocking
the shells and the target store. They may be very
concerned about complaining, and if they are, the imposition on
them would not be considered an undue hardship. So it's
(32:50):
this very odd thing where the burden is now being
shifted to the coworkers to bear this increased accommodation cost.
Speaker 2 (32:59):
And so is it the co workers who are complaining
or filing complaints.
Speaker 4 (33:03):
Well, so what's happening, which is sort of interesting, is
is the employers say we can't accommodate. And then if
an employer says they can't accommodate, the religious employee will
soothe saying the Title seven was violated, that they have
a right to accommodation. And there are cases where actually
the employers will say, well, we can't accommodate because it's
(33:26):
an imposition on coworkers. So there are cases where the
employers are concerned with the coworkers. They'll say, we can't accommodate.
It's an imposition on coworkers. And the courts will then say,
we are not particularly concerned with an imposition on the
coworkers themselves. So once the courts start saying that, I
think what's going to end up happening is employers will say, oh, okay,
(33:48):
courts don't care about imposition on coworkers. We're just going
to shift the cost to coworkers to avoid the litigation.
And again, I do want to emphasize this is at
the very very early stages, but this is sort of
what has been going on.
Speaker 2 (34:05):
So this new memo from the Trump administration encouraging federal
government employees to express their faith and proselytize coworkers, how
would it affect that.
Speaker 4 (34:19):
I don't think it would have a huge effect on that,
because what the memo is saying is the memo is
clearly requiring this higher level of accommodation. One of the
very odd things in the memo is they seem to
be very unconcerned with whether or not the person engaging
in cases of religious expression whether it's a supervisor or
(34:41):
not a supervisor. And the reason that I found to
be very odd is that the court traditionally are understandably
very concerned when you're dealing with religious expression, you know,
which are different than the time off cases, but they're
very concerned with religious question of supervisors because the impact
(35:03):
on employees is going to be very different. The memoir
was very odd. They cited a case called Tamas versus Toulon,
and in that case, essentially what the court had said
is that accommodation of religious expression is not required, in
part because you're dealing with a supervisor. But the memos
(35:27):
seemed to be citing that almost for the position that
you know, it doesn't matter if an employee is a
supervisor or not in a supervisory role. So that was
that was a very very odd thing.
Speaker 2 (35:40):
There's been a lot of Supreme Court cases where religious
rights clash with LGBTQ rights. Tell us about the cases
coming up where employees claim a religious right to intentionally
misgender their co workers.
Speaker 4 (35:58):
Yeah, so you know they're but there's been like this
ongoing thing where you have a conflict between religious rights
and religious liberties and LGBTQ rights. And in the constitutional realm,
you had what is a creative three of three, you
had Masterpiece cake Shop, And now you're also having these
cases starting to come down, while more of them are
(36:20):
coming down under Title seven. And essentially, what these religious
employees are saying is they are saying that we believe
that gender is assigned to birth, and we have a
religious belief. We must speak our truth. And if our
truth is you are a biological male, then we refuse
(36:42):
to call you she, and we need a religious accommodation
to do that. And what's interesting, and I don't want
to make too much of these decisions because they're just
starting to come down, the court seems to be very
very concerned with the dignitary rights of the transgender employees
(37:03):
or the transgender one case that involves students who are
being intentionally misgendered in these cases, so courts aren't basically
saying you cannot accommodate somebody who has a need to
intentionally misgender, you know, someone in the workplace, whether it's
an employee or this was one big case that involves students.
(37:26):
So that's like another way where these cases are starting
to go.
Speaker 2 (37:30):
But the Trump administration's Religion Memo just applies to government employees.
Speaker 4 (37:37):
So the Religion Memo covers both religious employees rights under
the Constitution, because religious employees have constitutional rights. But then
it also covers religious employees rights under Title seven because
if you're a government employee, you have both constitutional rights
and statutory rights to religious expression in the workplace. So
(38:00):
it's covering both of those, and it is essentially interpreting
cases or in some cases misinterpreting cases, to provide an
extremely high level of accommodation of religious expression in the workplace.
Speaker 2 (38:19):
Will these ideas or requirements migrate to the private sector.
Will the EOC sort of up its game in that regard?
Speaker 4 (38:29):
That's a very good question. I don't know. What's interesting
is that the EEOC guidance that has come down on
religion in the workplace over the last few years. There
are few parts, very small parts that have been rescinded,
but when I last checked, like a week ago, most
(38:49):
of it is still up. You know, courts now, and
I don't have any kind of great expertise in administrative law,
but courts are now focusing much less on what the
EEOC has to say. Could it I guess, you know,
It's like I think, with all of these things, if
(39:09):
employers see this, and employers are reading about the fact
that more religious accommodation is required, just in like a
very non legalistic sense. You keep hearing about how the
administration is requiring more religious expression in the workplace, more
religious accommodation in the workplace, and you're an employer and
(39:30):
you just want to make your widgets, and you don't
want to have to deal with litigation, you may just
over accommodate because it's the easiest thing to do. And
I do think that this type of a memo is
going to encourage that. I am most concerned about the
types of employees who have to show up in the
(39:50):
workplace every single day, who can't work remotely, and who
now are going to be told that they have to
work a religious employees less desirable shifts. But there's something
about that which is a little unfair. And there's also
something that is very strange, particularly with Title seven, that
(40:14):
here you have the statute which was passed, the stop
Discrimination in Employment, and under the statue, religious employees are
saying we have a right to discriminate against LGBTQ employees.
And that's what I'm watching and what I'm most interested in.
Speaker 2 (40:35):
Thanks for joining me, Debbie. That's Debbie Camoner, a professor
of law at Beru College. In other legal news today,
the House Oversight Committee has subpoenaed the Justice Department for
files in the Jeffrey Epstein sex trafficking investigation. It's also
seeking depositions with the Clintons and former law enforcement officials.
(40:57):
The committee's actions show how even with awmakers away from
Washington on a month long break, interest in the Epstein
files is still running high. The committee has issued subpoenas
for depositions with former President Bill Clinton, former Secretary of
State Hillary Clinton, and former Attorneys General Merrick Garland, Bill Barr,
(41:20):
Jeff Sessions, Loretta Lynch, Eric Holder, and Alberto Gonzalez. And
that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news Honor
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
(41:40):
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg,
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
Los Angeles has been a hotspot for the Trump administration's
immigration efforts, with accusations that ICE agents were using racial
profiling and other illegal tactics.
Speaker 3 (00:21):
The mask men in unmarked cars, no license plate, no
real uniforms, jumping out of cars with rifles, and snatching
people off the street, leading a lot of people to
think maybe kidnappings were taking place.
Speaker 2 (00:36):
That was Mayor Karen Bass on ABC's This Week. A
federal judge found last month that there was a quote
mountain of evidence that ICE agents tactics were violating the Constitution.
She issued an order barring agents in LA from stopping
and questioning people on the basis of race or ethnicity,
(00:57):
speaking Spanish or English with an accent, the type of
work they do, or their presence at a particular location
like a car wash, a tow yard, or an agricultural site,
and the Ninth Circuit Court of Appeals has unanimously backed
that order, leaving the ball in the administration's court. My
(01:18):
guest is an expert in immigration law. Leon Fresco, a
partnered Holland and Knight. Leon explained what the district judge
ordered in the LA case.
Speaker 1 (01:27):
Well, the original case involved the challenge to something that
was called Operation at Large, which was a federal immigration
enforcement initiative in Los Angeles. There were these ICE contact
teams targeting locations such as car washes and home depots
and other places believed to employ undocumented workers. And there
(01:48):
was a lawsuit claiming that these roving patrols detained individuals
without reasonable suspicion, violating the Fourth Amendment, and the District
Court at health on Julia Lae Eaven that the plaintiffs
were likely to succeed improving unconstitutional seizures. So the judge
restricted federal agents from conducting these ICE rays and stops
(02:11):
without a reasonable suspicion. So what that means is that
instead of walking around and trying to say this person
looks like somebody that's not here legally, which has a
sort of dubious application that people get worried about because
they say, well, how are you making those decisions? What
(02:32):
they're trying to do is convert ICE back into a
list sort of agency where it says, we know today
we're going to go after person one, person two, person three,
person four, person five, and then they go and they
look for these people because they know they're here undocumented,
rather than just grabbing people in the middle of the street.
(02:53):
And so that's really the end goal of this lawsuit.
And so yes, there are times where they'll still be
able to pick people up because they'll have a reasonable
subspicion for another reason other than they're on a list.
But mostly this limits ICE to this sort of list
based enforcement.
Speaker 2 (03:10):
And what was the government's argument at the Ninth Circuit when.
Speaker 1 (03:15):
The government appealed, They said two things. They said, first
of all, that the organizational plaintiffs and the case didn't
even have standing to bring the case, because organizational plaintiffs
were the ones bringing the case, you know, because if
you have an individual plane, if it's hard because you say, well,
what are the odds that you particularly are going to
be grabbed by Ice, so you don't really have standing
(03:37):
to make the claim. So instead there were these organizational
planiffs who brought the case. And they also said that
in general they weren't violating the Fourth Amendment because they
have the ability and then the right to enforce immigration law.
They have the right to question anybody about their lawful
presence in the United states at any times what the
(04:00):
statue permits them to do. The Ninth Circuit said two things. First,
that the organizational planets had standing because they showed that
these kind of roving patrols forced them to divert their
resources from instead of carrying out other missions of supporting immigrants'
rights in the community, they had to move to divert
the resources into dealing with these enforcement actions. So that
(04:23):
was the standing issue, and they said there was standing.
But they also said that with regard to these claims
about reasonable suspicion and force Amendment violations caused by ICE
officers roving around looking for people, they said that yes,
that does also seem to have a likelihood of success
enough that they would not say the District Court's ruling
(04:45):
it was a three zero decision, and so the court
basically allowed almost all of the ruling to take place,
except there was one line in the injunction that prevented
ICE from even asking individuals about their immigration reasonable suspicion.
That was say, they were allowed to still do that.
(05:06):
That was considered overbroad and problematic in terms of enforcement
and constitutional interpretation, but the rest of the injunction was
allowed to continue.
Speaker 2 (05:17):
So the judge rule that ICE can't attain people based
on their apparent race or ethnicity, So speaking Spanish or
accented English, or being at locations such as home depot
parking lots, what does constitute reasonable suspicion?
Speaker 1 (05:35):
Then the main thing that people who file this lawsuit
basically are trying to limit ICE is to say you
have to have some sort of knowledge of the person
you're looking for and of their immigration status before you
go looking for those individuals. So, for instance, if you're
(05:55):
at an immigration court, then you'll know if somebody has
that status or not, so then you can pay them
up after or if again, you're working off a list
of people who have lost their status that you know
from the Department of Homeland Security databases and you're going
to pick up those people at their work or at
their homes, you then have reasonable suspicion and you can
do that. And what the decision also allows is so,
(06:17):
for instance, let's say there's twenty undocumented people at a
work site that they know about because they have it
in their database, then they can ask, Okay, well, what
about the other people at this work site? I want
to see the paperwork for them, because then there's a
reasonable suspicion because you've already established that there's twenty undocumented
(06:37):
people at that work site, that the employer hires undocumented people.
But in terms of just randomly generating leads by going
to places and making these sort of facial decisions, I
am concerned about how this person looks or how they
present themselves, etc. That's the kind of thing that is
(06:59):
enjoying them this injunction.
Speaker 2 (07:01):
How much of a hindrance is this order to ICE, Well.
Speaker 1 (07:07):
It depends if you say how much of a hindrance
is it to their deterrent operations as opposed to their
removal operations. It's not really a deterrent at all to
their removal operations in the sense of ICE has pretty
sophisticated databases where it knows where most of the undocument
the people in this country are and where they live,
(07:29):
and ICE, if they want to, can go and pick
up as many people as it has detention space to detain,
and so there's never a shortage of people that ICE
can pick up on any given day to place and
detention given the limited detention space it has. But what
it does limit is ICE's ability to engage in the
(07:50):
kind of patrols that are designed to create a deterrent effect,
meaning people are nervous to remain here in the United
States because they think, oh, if I take a city bus,
or if I just go shopping, or if I'm taking
my child to school, I could be apprehended at any moment.
The design of those operations isn't to meet the quota,
(08:12):
so to speak. It's to instead create a deterrent effect
that tells people, if you stay here, you never know
what day is going to be the day you're apprehended,
so you should just return home. And so that's where
it's limiting the operation. Isn't that deterrent effect.
Speaker 2 (08:29):
So the government has two options. It can ask for
an onbink hearing to reconsider the panel's decision, or it
could ask the Supreme Court to stay the order. Do
you think it will do either of those things.
Speaker 1 (08:43):
I think the government has been quite aggressive in appealing
to the Supreme Court, so I do think the government
probably will not take the step of going to the
unbank Ninth Circuit because that will simply delay thing and
probably unlikely to be considered unbanked by the Ninth Circuit
unless they happen to get a perfect setup of the
twelve judges that would be picked for the unbound panel.
(09:05):
Then I mean, theoretically it could happen, but the odds
are not so great for that purpose. And they've been
getting better results in the Supreme Court with saying some
of these injunctions, and I could foresee the Supreme Court
lifting or staying parts of the injunction that limit ICE's hands.
I mean, I don't see them potentially taking away the
(09:28):
whole injunction, but I could see them giving Ice a
little bit more wiggle room here. And so I do
think they're going to try their hand there to see
if they can continue, because I think they view these
city roving operations as an important part of their deterrent force,
and so they really want to be engaging in these
(09:49):
and I don't think they'll give it up that easily.
Speaker 2 (09:51):
So during this hearing, the Ninth Circuit hearing, the judges
asked the government lawyer repeatedly whether the Trump administer has
set a quota of three thousand immigration arrests a day.
That number has been bandied about, and it started with
I believe Stephen Miller, White House advisor, the government lawyer
Yakovrov said he didn't know, and the judges said, okay,
(10:14):
submit a letter, and in the letter he said that
was incorrect, that there wasn't a goal of three thousand.
I mean, do you think there's a goal.
Speaker 1 (10:24):
I think the way they're trying to basically square the
circle is to say that there's not a memo or
a policy or anything in place where they don't hit
three thousand in a day. Something bad happens to somebody
at ice, or somebody's pay gets dogs or anything like that.
So they recognize, yes, people have said three thousand a day,
(10:47):
that is something that's been said in the media, but
there's not any operational context that actually requires three thousand
people to be arrested today. And the truth is there
goal is to detain as many people as they can
each day. I think three thousand is probably not a
policy in the sense that it has to hit three
(11:08):
thousand or something happens legally where somebody's heels responsible for
not hitting three thousand, So I think that's probably an
accurate statement. But the intent or the goal is to
detain as many people as possible. If that was six thousand,
they'd be happier than if it was four thousand, or
if it was two thousand, and So if the idea
(11:30):
behind this lawsuit is that these roving patrols are being
done to generate as many removals as possible, there are
as many detentions as possible, I don't think the administration
would dispute that. But the issue is do they have
this quota? And I think the quota would only bother
them from the standpoint that any law enforcement operation that's
(11:53):
not geared toward enforcing the law in that individual case,
but that's geared toward a larger quota, creates trouble with
regard to sort of the motives of the government in
how it's operating and how it's conducting law enforcement. Those
have been problematic cases and other contexts in the court.
But I think it's just fair to say there's not
(12:14):
a quota that is operationalized, but rather just a goal, Hey,
get as many people as you can in detention and
in deportation proceedings as humanly possible, and so the number
three thousand was a goal in terms of you should
be able to do this. But again, I think it's
fair enough to say that there's no legal consequences for
(12:36):
not hitting that number coming up next.
Speaker 2 (12:38):
I just agree that agents in Los Angeles won't impersonate
police officers to make arrests and homes. You're listening to Bloomberg.
We've been talking about the Ninth Circuit backing a judge's
order barring immigration agents in Los Angeles barring immigration agents
in the Los Angeles area from using racial profile filing
(13:00):
to detain in question suspected undocumented migrants. Well, in another
lawsuit challenging the constitutionality of ICE agents in LA impersonating
police officers or using other ruses to make home arrests,
ICE has reached a court approved settlement. Under the agreement,
ICE officers can't claim to be state or local law
(13:23):
enforcement or misrepresent the nature of their visit in order
to enter a home or persuade a resident to come outside.
I've been talking to immigration attorney Leon Fresco of Holland
and Knight. Leon explain what ICE officers were doing.
Speaker 1 (13:41):
This is sort of a larger issue, which is that
as the people in the immigration rights movement have become
very very successful in communicating messages of know your Right,
a lot of people in the immigration community have understood
that ICE can be refused entry into a home unless
they have a judice warrant. So if they have an
(14:01):
administrative warrant, or if they just say can you let
me in, you're totally within your right to say no,
I don't want to let you in, and I can't
go in. If I goes in, then whatever operation they
did is invalid under the law once it eventually gets
to a court. And so a lot of individuals know
this now. So ICE has had to operate in this
(14:21):
sort of and this has been happening for many years.
This is not a recent thing, but the settlement is
recent where they try to find ways around these limitations.
So they try to get people to come outside. They say, hey,
your car is broken, or hey I need some directions,
can you come outside or whatever, and then once they're
outside then they can conduct their legal action. Or they
(14:42):
say they're police, can they be let inside? And if
people think they're police but not ICE, then they let
them inside. And so the idea of this lawsuit was
to say ICE has to not do those tactics of
giving some sort of not whole truth or or potent
deviation from the truth in what their operations are. They
(15:03):
have to say that their ICE both in their clothing
and in their verbiage, and so that when they are
engaging in those operations. Now under this settlement, then the
individuals will know this is ICE. ICE is strength enter
the home. I can refuse it unless they have a
judicial warrant.
Speaker 2 (15:20):
Yeah, so they have to have a warrant that's signed
by a judge, and those are hard to get.
Speaker 1 (15:25):
It's not that they're hard to get, but it's time
consuming because judges only have so many things they can
do on a given day. And if ICE is trying
to get one of those warrants, they have to set
up the paperwork that says, here's this person, here's how
we know they entered illegally, or they entered legally but
they've overstayed their status, and then you wait for the
(15:46):
judge they issue the warrant, and then the judge issues
the warrant. So all of this takes time, and it's
time that ICE doesn't want to be spending when it
can just write up an administrative warrant on their work
processing documents. So they try to do that, but if
they're not successful, then they have to go and get
a warrant from a judge, meaning also they have to
get the Department of Justice lawyer involved, and those lawyers
(16:10):
want to be doing other things. They don't necessarily want
to be doing this, although they're being ordered to do
more of this, and so that's the sort of barriers
to entry to get those warrants. So it's not hard legally,
but you just have to get a lot of people
interested in terms of the judge and the Department of
Justice and others in issuing the warrant. And so that
takes fine and resources.
Speaker 2 (16:31):
And so you mentioned clothing identifying them as ice. Do
ICE agents often have clothing that says police instead of ice.
Speaker 1 (16:41):
They for a number of years have been engaging in
these operations where what the front of their shirt would
say was the word police. And that did and they said, well,
police has this sort of general meaning of a person
who enforces law. So we are correct to be able
to say police. We don't have to say ice. We
just have to say we are people who enforce the laws.
(17:04):
But now in this settlement I can't do that. It
actually has to say it is ice, not just that
it's believed.
Speaker 2 (17:11):
One more question on clothing ICE agents. Whenever you see
video of them or photos they're wearing masks. Is there
a problem with them wearing masks as well? I mean,
I take it they're wearing masks to conceal their identity.
Speaker 1 (17:26):
Right at the moment, this mask issue is one that's
being hotly debated in the Congress for this upcoming appropriations bill.
They're trying to see if they can actually get some
language in there that maybe the Republicans will agree to
with regard to people being able to identify themselves so
that people aren't worried whether these are fake ICE officers
(17:46):
who are actually criminals trying to take advantage. But at
the moment, there isn't any court order or anything that
says that the agents can't wear masks. The agents wear
masks because they don't want people coming to their homes.
Now in this social media you could say, oh, that's
ICE agent Fred Smith who lives on one one one
Smith Lane, and so go to their house and yell
(18:07):
at them. They're trying to avoid that scenario. That is
a scenario that whether you agree with immigration enforcement or not,
the people that I don't deserve to have their houses
raided by angry people in the community. And so it's
one of those terrible situations all the way around. But
the wearing a mask, there's going to need to be
(18:28):
I think most people agree some sort of limiting principle
here where there has to be some identification that's done
and shown that says I'm an ice agent. So maybe
the person wears a mask, but during the immediate apprehension says,
here's my badge and I'm an ice agent, and they
show it, and then that follows the problem. But I
(18:50):
think the current way where someone just is completely unidentified
wearing a mask and putting someone in a van, I
think if that continues, you will see courts getting involved,
and I think you'll even see Congress getting involved, because
those are not the kind of images that one typically
associates with normal law enforcement. You want the law enforcement
(19:13):
to be more transparent than that, and so we will see.
But the concerns are well understood, they're well justified. But
there has to be some principle where at least I
think a badge is shown or something happens so that
people can know, Okay, this is a nice agent that's
doing this operation.
Speaker 2 (19:29):
Let's turn now to visas to get into the country.
The State Department is proposing requiring applicants for business and
tourists visas, some applicants to post bonds up to fifteen
thousand dollars. Who are they targeting here?
Speaker 1 (19:46):
So this is a pilot program, And what they're trying
to do is they are worried that there are certain
countries that have very high over stay rates. That means
that a visa gets issued and the person doesn't go
home and they instead stay in the the United States.
And so what they're trying to do is to create
a financial disincentive for people to do that, which is
(20:06):
a bond, meaning you put up this money and you
don't get it back if you don't go home. And
so right now they're doing about two dozen countries that
have a ten percent or higher overstay rate. Most of
these are African countries. And what they're going to say
to the State Department is charge these bonds and if
only if they can put up the bond, will they
get the visa. Now, this is an interesting concept. This
(20:29):
is actually a concept that even when I was a
staffer back on the hill, you know, a long long
time ago, many many many years ago, I actually was
in favor of this concept. But in a slightly different way,
meaning that a lot of what the State Department does
is guess work, trying to guess is someone going to
(20:50):
overstay or not. They really don't have any idea. They're
just trying to do the best they can under some
challenging circumstances. And so I had pushed the State Department
personally as as baff Director of the Immigration sub Committee,
to do these bonds, but in a way where it
basically what would happen was if someone was refused a visa,
they could overcome the refusal by putting up a bond
(21:13):
and say, hey, if you really think I'm going to overstay,
you're fifty thousand dollars saying I'm not going to oversay.
And the State Department had traditionally and by traditionally, I
need at least the last two three decades take in
the view, there was no bond you could make people
pay that would substitute from their desire to overstay. So
if you made the bond twenty thousand, fifty thousand, they've
(21:36):
just put up the money and overstay and they don't care.
And so it appears that Trump administration does not agree
with that. They so they're putting up the bond. But
the issue is who's going to get charged this bond.
So is this bond and this is we're gonna have
to wait and see. Is this bond going to get
charged to people who would otherwise have already been approved
(21:59):
and now they have to pay a bond? Or is
this going to be the way I wanted it, which
was someone whose case was iffy, who you thought could
be approved, but you're a little nervous, so you deny it.
Now you can put a bond in and you can
approve the visa because now they can pay and show
that they're serious about going back. And so if it's
(22:20):
this second concept, I think that's actually an improvement from
where we were before. But if it's the first concept,
then it's useful for your listeners to know that getting
a visa from any of these countries in Africa is very,
very hard. You have to be extraordinarily wealthy in order
to get a visa, so that your overstay risk is
(22:42):
almost zero in that context. And so just to make
those people have to pay a bond when it was
clear they were already going to go home seems excessive
and unnecessary. So that's what We're going to wait and
see is what context, because it's still going to be
optional for the individual consular officials to decide whether the
bond would be zero, five, ten thousand, or up to
(23:04):
fifteen thousand that's the highest they can charge, and who
they will give the bonds too. So we'll have to
wait and see. But I do think if there was
a scenario where this could be applied to people who
otherwise wouldn't have been permitted to travel, I'm not so
against it, but I think we'll have to wait and see.
Speaker 2 (23:22):
There. Does it involve a lot of paperwork? Does this
put additional burdens?
Speaker 1 (23:27):
Well, this is going to be a brand new thing
for the state Department. Absolutely. They don't have the infrastructure
in place to a collect the money, be hold the money,
see pay back the money, the determine if you actually
earned your bond, meaning you came back. And then the
question also is what does this mean. So for instance,
a visitor visa, sometimes it's a ten year visa and
(23:50):
it allows you to go back and forth as many
times as you want during those ten years. So the
question is you have to keep putting up the fifteen
thousand every single time you enter, you only have to
do it the first time and show that you went
back the first time. Because if you only have to
do it the first time, then somebody can become very
creative and say, let me just you know, come back
(24:10):
the first time, but then the second time I enter
is the time I can overstay. So I don't know
what they're going to do about all of that. I
don't think they quite know either, but they're going to
have to work out all of those issues.
Speaker 2 (24:21):
The administration is also tightening visa requirements for certain people.
We talked about them denying visa to the Venezuelan Little
League team, so now they're going to deny female transgender
athletes petitions for extraordinary ability visas. First of all, what
is an extraordinary ability visa?
Speaker 1 (24:42):
I have a lot of these. So for instance, if
you're going to watch now upcoming the US Open tennis
tournament in New York, I know a lot of people
love that. I have. Any tennis players that are my
clients that come in on these extraordinary ability visas, and
what happens is you basically show hey immigration service. These
tennis players are at the top of their field. They're
(25:03):
in the members of either of the ATP, which is
the men's tournament or the WTA the women's tournament. And
because they've reached the top let's say one hundred ranking,
that means they're one of the top hundred tennis players
in their field. So they have extraordinary ability. So you
should give them a visa, and that visa lasts for
three years, and so they can then come in the
(25:24):
country and play in the tennis tournament for three years,
or it could be the same thing for Formula one
drivers or for golfers. You get the pictures the points
of those visas. What they're trying to say is, suppose
you end up being one of the best female tennis
players in the world, but you are born a man.
(25:44):
Could you get one of these visas? And what they're
saying is, no, we won't give you one of those
visas if we can determine that you're coming to America
to play in the female part of the US Open,
but you are born a man. Now, I don't know
at the moment who that would apply to. I mean,
I know theoretically, but what I'm saying is, at the moment,
I don't know if there is a specific athlete who
(26:08):
was born a man who's trying to come into the
United States to compete in an event like this in
the female category. But with the Olympics coming up, perhaps
the concern is maybe this could happen, even though the
Olympic Committee said they will not allow people who are
born men to compete in the women's events. But nevertheless,
this is now a clear line in the sand saying
(26:30):
don't even try to get the visa because we won't
allow it.
Speaker 2 (26:33):
At some point, when you know international organizations are thinking
about where their next tournament or their next event should
take place, are they going to start considering, well, if
we go to the US, a certain number of people
are not going to be let in for various reasons.
(26:53):
I mean, they also blocked the Cuban volleyball team from
playing in Puerto Rico.
Speaker 1 (26:59):
I think there's gonna have to be long term analyses
here because obviously any new events that get scheduled in
the US will be beyond twenty twenty eight. And so
the question is do people want to assume that whatever
the immigration policies that are in the existence now will
be in existence past twenty twenty eight. Those are all
the kinds of gambling and speculation that people put in place.
(27:23):
I think if people thought that, then I do think
there would be a likelihood you wouldn't see as many
events scheduled in the United States in the future. But
if people think that the immigration policy will revert back
to some more moderate tones, then they might not care
and they might schedule these events in the United States
because obviously it's very lucrative to hold these events in
(27:45):
the United States, and they have the infrastructure and the
stadiums and everything else. But I think that those determinations
we're gonna have to wait and see. But I mean,
I think we're going to see pretty soon with the
World Cup coming up next summer. Are those stadiums full
or are they emptied? Did people travel, were they allowed
to travel? Do we hear stories of people not getting in?
(28:06):
And then obviously twenty twenty eight at the Olympics, we're
athletes banned from competing. And if we really start to
see that, or we're coaches or families or fans of
the team banned from entering, the more we see that,
then the more likely that even if there's a different president,
people will just say, look for a little while, we
need to calm ourselves from the US until we redetermine
(28:30):
the landscape, and then we could decide to come back in.
Speaker 2 (28:33):
Our immigration policy certainly does change from administration to administration.
Thanks so much, Leon. That's Leon Fresco of Holland and
Knight coming up next. When religious accommodations in the workplace
impose a higher burden on coworkers, you're listening to Bloomberg.
(28:54):
There's been a line of lower court decisions following the
Supreme Court's twenty twenty three rule that employers under Title
seven of the Civil Rights Act need to be the
higher bar to refuse a religious accommodation as an undue hardship.
Could the Trump administrations loosening accommodation rules for religious employees
(29:15):
place a higher burden on their coworkers. Joining me is
Beru College professor Debbie Kamener, who's been studying this. Debbie,
tell us about your paper.
Speaker 4 (29:25):
So what I'm actually trying to send this up right
now is an article on Title seven, which requires religious
accommodation in the workplace. And there was a case Grass
versus the Joy It came down two years ago, and
it was a sort of weird Supreme Court case because
we have the Roberts Court, which is so pro religion
(29:46):
and also FAU pro business. And when you think about
religious accommodation in the workplace, in many ways, what it
does is it pits religious rights against business rights because
if you have more religious acommodation, you would need to
give religious employee time off to celebrate their religious holiday.
Then the employer has to bear the cost. What the
(30:09):
court did in Graph is they did this very strange
thing where they wrote the decision in a way where
more accommodation is required. But it's possible for both lower
courts and employers to now shift that increase the commodation
costs to coworkers. So instead of the employer having to say,
pay somebody over time to work the extra hours or
(30:32):
suffer a loss and productivity in the workplace, what the
employer does is they just stay to coworkers, sorry, you
have to work the undesirable shifts of the religious employee.
So what I've been looking at is what has been
happening since Graph came down two years ago, and what
are the lower courts and then the employers doing, and
(30:53):
have they actually been shifting this increased the accommodation costs
to co workers, and in many instances it seems like
they are. So it seems like what's happening isn't these
co workers who are bearing the cost of the accommodation
and there's the party with the least power. So I
have been finding that to be very, very problematic.
Speaker 2 (31:15):
How have the courts been handling these issues?
Speaker 4 (31:18):
So the courts what they used to say is they
used to say that anything more than a deminimous or
minimal cost was not required. So if for example, a
religious employee regularly needed their status off, that in many
instances would be more than a deminimous cost because it
(31:39):
would mean that a religious employees co workers would have
to work that undesirable weekend shift on a regular basis.
The cases I do want to emphasize they're just starting
to come down. But courts are now requiring the lower
courts this higher level of accommodation, and they seem very
unconcerned earned with an impact on coworkers. What they're saying
(32:03):
is that unless the coworkers are impacted in a way
that there's a direct financial cost to the business itself. So,
like you know, the co workers are very annoyed that
they have to work. The religious employees shifts, so you know,
they're letting it be known, and they're morale issues and
it's leading to efficiency issues and productivity issues. That could
(32:26):
be an undue hardship. But if it's just an impact
on coworkers alone and the co workers, particularly a very
powerless coworker, you know, think about somebody maybe like stocking
the shells and the target store. They may be very
concerned about complaining, and if they are, the imposition on
them would not be considered an undue hardship. So it's
(32:50):
this very odd thing where the burden is now being
shifted to the coworkers to bear this increased accommodation cost.
Speaker 2 (32:59):
And so is it the co workers who are complaining
or filing complaints.
Speaker 4 (33:03):
Well, so what's happening, which is sort of interesting, is
is the employers say we can't accommodate. And then if
an employer says they can't accommodate, the religious employee will
soothe saying the Title seven was violated, that they have
a right to accommodation. And there are cases where actually
the employers will say, well, we can't accommodate because it's
(33:26):
an imposition on coworkers. So there are cases where the
employers are concerned with the coworkers. They'll say, we can't accommodate.
It's an imposition on coworkers. And the courts will then say,
we are not particularly concerned with an imposition on the
coworkers themselves. So once the courts start saying that, I
think what's going to end up happening is employers will say, oh, okay,
(33:48):
courts don't care about imposition on coworkers. We're just going
to shift the cost to coworkers to avoid the litigation.
And again, I do want to emphasize this is at
the very very early stages, but this is sort of
what has been going on.
Speaker 2 (34:05):
So this new memo from the Trump administration encouraging federal
government employees to express their faith and proselytize coworkers, how
would it affect that.
Speaker 4 (34:19):
I don't think it would have a huge effect on that,
because what the memo is saying is the memo is
clearly requiring this higher level of accommodation. One of the
very odd things in the memo is they seem to
be very unconcerned with whether or not the person engaging
in cases of religious expression whether it's a supervisor or
(34:41):
not a supervisor. And the reason that I found to
be very odd is that the court traditionally are understandably
very concerned when you're dealing with religious expression, you know,
which are different than the time off cases, but they're
very concerned with religious question of supervisors because the impact
(35:03):
on employees is going to be very different. The memoir
was very odd. They cited a case called Tamas versus Toulon,
and in that case, essentially what the court had said
is that accommodation of religious expression is not required, in
part because you're dealing with a supervisor. But the memos
(35:27):
seemed to be citing that almost for the position that
you know, it doesn't matter if an employee is a
supervisor or not in a supervisory role. So that was
that was a very very odd thing.
Speaker 2 (35:40):
There's been a lot of Supreme Court cases where religious
rights clash with LGBTQ rights. Tell us about the cases
coming up where employees claim a religious right to intentionally
misgender their co workers.
Speaker 4 (35:58):
Yeah, so you know they're but there's been like this
ongoing thing where you have a conflict between religious rights
and religious liberties and LGBTQ rights. And in the constitutional realm,
you had what is a creative three of three, you
had Masterpiece cake Shop, And now you're also having these
cases starting to come down, while more of them are
(36:20):
coming down under Title seven. And essentially, what these religious
employees are saying is they are saying that we believe
that gender is assigned to birth, and we have a
religious belief. We must speak our truth. And if our
truth is you are a biological male, then we refuse
(36:42):
to call you she, and we need a religious accommodation
to do that. And what's interesting, and I don't want
to make too much of these decisions because they're just
starting to come down, the court seems to be very
very concerned with the dignitary rights of the transgender employees
(37:03):
or the transgender one case that involves students who are
being intentionally misgendered in these cases, so courts aren't basically
saying you cannot accommodate somebody who has a need to
intentionally misgender, you know, someone in the workplace, whether it's
an employee or this was one big case that involves students.
(37:26):
So that's like another way where these cases are starting
to go.
Speaker 2 (37:30):
But the Trump administration's Religion Memo just applies to government employees.
Speaker 4 (37:37):
So the Religion Memo covers both religious employees rights under
the Constitution, because religious employees have constitutional rights. But then
it also covers religious employees rights under Title seven because
if you're a government employee, you have both constitutional rights
and statutory rights to religious expression in the workplace. So
(38:00):
it's covering both of those, and it is essentially interpreting
cases or in some cases misinterpreting cases, to provide an
extremely high level of accommodation of religious expression in the workplace.
Speaker 2 (38:19):
Will these ideas or requirements migrate to the private sector.
Will the EOC sort of up its game in that regard?
Speaker 4 (38:29):
That's a very good question. I don't know. What's interesting
is that the EEOC guidance that has come down on
religion in the workplace over the last few years. There
are few parts, very small parts that have been rescinded,
but when I last checked, like a week ago, most
(38:49):
of it is still up. You know, courts now, and
I don't have any kind of great expertise in administrative law,
but courts are now focusing much less on what the
EEOC has to say. Could it I guess, you know,
It's like I think, with all of these things, if
(39:09):
employers see this, and employers are reading about the fact
that more religious accommodation is required, just in like a
very non legalistic sense. You keep hearing about how the
administration is requiring more religious expression in the workplace, more
religious accommodation in the workplace, and you're an employer and
(39:30):
you just want to make your widgets, and you don't
want to have to deal with litigation, you may just
over accommodate because it's the easiest thing to do. And
I do think that this type of a memo is
going to encourage that. I am most concerned about the
types of employees who have to show up in the
(39:50):
workplace every single day, who can't work remotely, and who
now are going to be told that they have to
work a religious employees less desirable shifts. But there's something
about that which is a little unfair. And there's also
something that is very strange, particularly with Title seven, that
(40:14):
here you have the statute which was passed, the stop
Discrimination in Employment, and under the statue, religious employees are
saying we have a right to discriminate against LGBTQ employees.
And that's what I'm watching and what I'm most interested in.
Speaker 2 (40:35):
Thanks for joining me, Debbie. That's Debbie Camoner, a professor
of law at Beru College. In other legal news today,
the House Oversight Committee has subpoenaed the Justice Department for
files in the Jeffrey Epstein sex trafficking investigation. It's also
seeking depositions with the Clintons and former law enforcement officials.
(40:57):
The committee's actions show how even with awmakers away from
Washington on a month long break, interest in the Epstein
files is still running high. The committee has issued subpoenas
for depositions with former President Bill Clinton, former Secretary of
State Hillary Clinton, and former Attorneys General Merrick Garland, Bill Barr,
(41:20):
Jeff Sessions, Loretta Lynch, Eric Holder, and Alberto Gonzalez. And
that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news Honor
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
(41:40):
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg,
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