October 31, 2025 • 27 mins
Leon Fresco, a partner at Holland & Knight and the former head of the Office of Immigration Litigation in the Obama administration, discusses the court cases over Trump’s efforts to deploy the National Guard to Democratic-led cities, and the request for more information from the Supreme Court. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
President Donald Trump's efforts to send troops into democratic led
cities is facing its biggest legal tests yet, with a
trial this week over his power to deploy the National
Guard to Portland, Oregon to counter protests. And of course
there is the deployment to Chicago, which is in a
holding mode right now before the Supreme Court. My guest
(00:31):
is immigration law expert Leon Fresco, a partner at Holland
and Knight. There are lawsuits challenging Trump's deployments in Los Angeles, Chicago, Portland,
and DC making their way through the courts. Have any
of them so far answered the question of whether he
legally invoked Section twelve four h six of Title ten
(00:56):
to bring state National Guard troops under federal cos well.
Speaker 1 (01:01):
The closest cases that have done this are the two
to one panel decision in the Portland case, where the
Ninth Circuit Court of Appeals ruled in favor of President Trump.
And they said that the way a court analyzes this,
they're allowed to analyze it. So at least they got
that far. They didn't say that the courts can't analyze it,
(01:24):
but they said they have to use a highly deferential
test and that the standard of review was quote, whether
there was a colorable assessment of the facts in law
within a range of honest judgment, which is a highly
deferential standard that basically said, if the President had any
sort of decent argument for saying that the Guard needed
(01:47):
to be deployed in order to either enforce federal law
or prevent rebellion circumstances, that would be enough. The dissenting
judge said, no, no, no, this is just like a normal
factual question where you have a hearing or a trial
and you come to the factual decision like any trial,
(02:08):
was there a murder, yes or no, it's not any
difference that's given you have a trial, and in this case,
whoever wins under a preponderance of the evidence standard would win.
And the dissenting judge said that there wasn't enough evidence
that there was actually any sort of rebellion or other
(02:28):
issues in Portland. And so now this two to one
decision is now going to go to on bank review.
The Chief Judge said for the court, without needing anybody
to ask, the Chief Judge, there should be on bank review.
And now there's going to be on bank review to
determine whether that two to one decision would apply. In Chicago,
(02:51):
we have a similar situation where the City of Chicago
and the State of Illinois also sued, arguing that the
deployment of the National Guard in the Chicago areas also
violated the Statute and the Tenth Amendment and the posse
comitatis law, which prevents federal troops from enforcing civil laws.
(03:13):
And the judge in that case issued a temporary restraining order.
The Seventh Circuit upheld the ruling, and the President Trump
asked the Supreme Court to lift the tro And now
the Supreme Court in that case has asked for additional
briefing to try to determine whether these words regular forces
(03:35):
in the Statute means military forces, and then how that
interpretation affects the president's authority to federalize the Guard. And
so at the moment, that's where we are on these things.
We don't know exactly what the president can do, what
the standard of review is, et cetera.
Speaker 2 (03:55):
So let's go to the Supreme Court for a second.
And you know that's because the Trump administration filed an
emergency petition to allow them to deploy the troops to Chicago.
So nine days past before the justices issued this order
requesting more information. And this has been a court that's
been very quick to answer Trump's emergency requests, usually in
(04:19):
his favor. What does it tell you that with this request,
they're asking about the specific wording of the law, which
says a president may deploy the guard when he is
quote unable with the regular forces to execute the laws
of the United States.
Speaker 1 (04:38):
What is interesting is they're trying to figure out because
there's two different types of I would say armed personnel
that's discussed. One is regular forces. So who are these
regular forces that the president is allowed to use? And
then when those quote unquote regular forces fail, then the
(04:59):
president is allowed to call in federal service members and
units of the National Guard of any state. So the
question is does regular forces mean that the president can
already send in military troops. That's a little bit complicated
because of it is then who are these federal service
members that the president is then allowed to send in
(05:21):
plus the units of the National Guard of any state.
So that's the question. Does it mean US military forces
or does it mean people like FBI, you know, Homeland
security investigation and things of that nature, so sort of
federal police power force type people, but not actual US
military troops. I think it would make a lot less
(05:45):
sense if regular forces didn't just mean FBI ice HSI,
that kind of thing, the sort of people who enforce
the federal law, the ATF that kind of group as
opposed to the military. Because of it also meant the military.
Then who are these quote unquote federal service members that
can be called into service if the quote unquote regular
(06:09):
forces are not able to execute the law. So that's
what I think it means, but we'll have to wait
and see what the Supreme Court says. It means.
Speaker 2 (06:17):
They don't seem to be in a hurry to decide
because the briefing schedule puts the briefings up until November seventeenth,
and then they have to decide. So that means what
three weeks or so where there won't be any deployment
of troops, correct.
Speaker 1 (06:33):
I mean, this is one of the most complicated and
important consequential questions probably that the Supreme Court has had
in the last couple of decades, because it really does
get to the heart of what a president can and
can't do. With regard to using the military in the
normal streets of the big cities of America. So this
(06:55):
is not something to trivialize or to issue any kind
of quick ruling on. And I think if there was
an actual place in America right now that was ungovernable
and where people couldn't go to work and there were
barricades everywhere and nobody could go to school, maybe there
would be urgency here. But that's not really the urgency
(07:19):
anyone is talking about. There's not a city in America
where no one can go to work, or go to school,
or get treated in a hospital or any of those
major things. At all of these cities. Sports events are
still going on, Concerts are still going on, all of
these things, and so it's hard to say there's an
interrection going on. In a true national emergency where none
(07:40):
of those things were going on, maybe we'd have a
faster ruling. But I think the Court understands here it's
better to get it right.
Speaker 2 (07:48):
But is a Supreme Court to look at the facts
or are they going to look at the law and
interpret that.
Speaker 1 (07:55):
Well, no, I'm saying they're looking at these facts unofficially
to determine how fast they're going in the speed of
the case. But I think what they're going to look
at for the decision in the case is the level
of defference that the President's determination gets. And then based
on the level of defference, they may remand for a
(08:17):
trial or hearing based on that level of difference, or
they may decide they have enough evidence to move forward
with that level of difference and decide, here's what the
facts dictate. Based on the level of difference, we decide.
So it could go either of those two ways, but
we'll just have to wait for the Supreme Court to say.
(08:37):
And plus that may end up being different in Chicago
versus in Portland or in Los Angeles. They may decide
that there is a bigger crisis in one location than
in another, and so in one location they can deploy
the federal troops, and in another location they cannot because
it doesn't rise to whatever new standard they decided to
(08:58):
apply in this case.
Speaker 2 (09:00):
Let's turned out to Greg Bavino, the chief of the
Border Patrol's El Centro sector in California, who's been very
high profile in the Trump Administration's crackdowns on immigration in
sanctuary cities. He's been three decades with the Border Patrol,
(09:20):
and he's emerged as the face of the Trump administration's
most aggressive operations against migrants in these democratic led cities.
Speaker 1 (09:31):
Well, he comes from the Border Patrol, from the US
Customs of Border Protection. He doesn't come from ICE, which
is the Immigration and Customs Enforcement division that actually is
in charge with the detention, apprehension, and removal of people
who are here illegally. That's who does it. It's nice.
The Border Patrol has a different mission. They have two
(09:53):
different parts. They have one that protects the United States
from people trying to cross in between ports of entry,
and they have a second mission of guarding ports of
entry themselves so that people don't get through the ports
of entry who shouldn't get through. And this is the
area of the Border Patrol where mister Baveno comes from.
(10:14):
And this has happened in the past because what happens
is that within the Department of Homeland Security they get
the impression that the people who come through the Border
Patrol have a more police oriented view of the world
because that's what they're doing. They're actually walking around looking
for crime, so to speak. If they see someone cross
(10:36):
the border, then they're going to apprehend them the same
way a police officer if they see someone robbing a store,
they will apprehend them. Whereas ICE traditionally doesn't have that
ethos of operating as roving cops on a beat. They
have more of a here's a list of people we
are passed with deporting today, and now we need to
(10:58):
either go pick them up at work, or pick them
up in the courthouse, or pick them up at home,
and it's a much more targeted planned day. That's how
ICE likes to operate, is within the targeted planned day
for operational concerns. And this has developed over thirty years.
This is not something that's happened over a day or two.
(11:19):
Because what happens is when ICE starts operating in the
same way local police would start operating, which is just
look around and try to find crime, then what you're
doing is looking around and trying to find people who
are there illegally. So just their existence in America is
the crime. And whether you like this policy or don't
(11:43):
like the policy, I'm not even saying anything about the policy.
I would just hope that the listeners of your broadcast
would agree that whether you like it or not when
that gets implemented. When ICE gets deployed in the same
way local police would be deployed, it creates tension on
both sides of the equation, where the people who don't
(12:06):
like ICE deployed in that manner start protesting, start barricading ICE,
start hiding people in their houses, and start doing everything
they can to resist ICE operating in that manner. And
this isn't even new either. You can find stories about
this every day for the last thirty years. It's just
that when you do it at a higher scale, you
(12:27):
get more of it. Or if you don't do this,
then you have the people who say, well, we're not
getting enough arrests, And it's true, you're not going to
get enough arrests if you don't have these roving enforcement
arrests that happened where you could just grab thirty people
at one place at one location just because you think
(12:48):
it looks suspicious there. Yes, that will increase the number
of arrests, but that also increases the level of tension
that you're tightening in that area when you do that.
And again I'm not thinking that, I mean you should
do it or you shouldn't do it, but that's why
the Trump administration has moved a lot of the ICE
(13:09):
agents who are leading these various local locations out of
their positions and is trying to bring in border patrol
people like mister Bovino, because it's saying we need to
change the ethos of ICE and turn it into a
police like unit that's roving around looking for crime, so
to speak. But in this case, again, the crime is
(13:31):
just the existence of the human being in America, which
is what makes it complicated. So you're not observing someone
stealing something, or you're not observing someone injuring somebody. You're
just observing someone standing there and you're asking yourself, is
this person that's standing there standing there illegally and you
(13:52):
don't know they might be, they might not be. But
the act of asking, over and over and over again
creates a level of tension that's completely different than any
other kind of police operation creates. And that's why I,
as I explained previously, I prefers the ethos of saying, look,
I'm sorry, this person Joe Smith is on a list,
(14:14):
they committed a crime or they were ordered deported in
two thousand and eight, and they've managed to stay here
seventeen years. Why do you think that you should defend
this person. That's a much easier law enforcement role to defend,
and that's why they like that as opposed to these
roving operations.
Speaker 2 (14:32):
Coming up next, the governor of Illinois makes a Halloween
request to ice. A group of journalists, news advocacy organizations,
and protesters are suing the government, claiming that federal agents
aggressive tactics in Chicago violated their rights. The case has
(14:52):
grown into something of a referendum on the repeated use
of force by federal agents in the Trump administration crackdown
on illegal immigration. I've been talking to immigration lawyer Leon
Fresco of Honda Night Soully on in that Chicago case.
Federal Judge Sarah Ellis has issued some orders, including requiring
(15:16):
agents to wear visible identification and issue warnings before using
weapons like tear gas or pepper spray. And she's expressed
alarm over videos and photographs that show the agents confronting
protesters and deploying teargas at a weekend Halloween event. We've
(15:37):
been talking about Greg Bavino, the Border Patrol chief, and
she had him on the stand for about an hour
the other day, asking him about the enforcement tactics, and
she ordered him to come back every day to report
to her. But the Seventh Circuit Court of Appeals paused
that order.
Speaker 1 (15:56):
Why well, the Seventh Circuit issued a vary shit decision
putting it on hold. But we can infer from that
that they agreed with the government's argument that the problem is,
and you have to look at this from a practical perspective,
not just from a well, what's the problem with one
hour of coming in and speaking to the judge every day?
(16:17):
But the truth is, if you're doing that, if you're
speaking to the judge every day for one hour, you're
legitimately preparing to give that testimony. Because no one just
sends a witness in to speak to a federal judge
without preparation for the testimony, giving them facts, giving them
everything that's happening that day. So basically, you will have
(16:37):
turned the head of the law enforcement operation into a
professional witness. This person wouldn't actually be able to do
any other work all day. Their entire day would be
devoted to learning the facts that they were going to
give the judge that day, preparing the testimony, and then
testifying that That would be an entire day of work,
(16:58):
and the federal government said, that's that been a thing
that's ever existed where we've ever had a federal judge
turn a US law enforcement official into a federal witness
that has to come every day and just do that
and not actually do the job they're supposed to do.
And they point out the federal government correctly that even
(17:21):
the plaintiffs didn't ask for this, This was just something
the judge did out of frustration with the federal government.
So the plaintiffs didn't ask for it, because I doubt
they would have even imagined the world where such relief
could have ever been granted. But the judge was so
frustrated that the judge granted the relief. And so I
do think it was very helpful to the federal government
(17:42):
to make an argument that, hey, if the plaintiffs don't
want something, why is the judge ordering it.
Speaker 2 (17:48):
Still in place? Is her order that Bevino wear a
body camera and the government has to turn over all
reports documenting when agents used force against members of the
public and also the body camera video by tomorrow.
Speaker 1 (18:05):
So correct, all of the sort of what I would
call transparency requirements and the use of force are all
still in effect, and we will wait and see what
both the Seventh Circuit says in principle at the end
of this and maybe what the Supreme Court says, and
if that is hell to be in effect, and that
could be something that could actually apply to all of
(18:27):
the ICE agents nationwide, is that they have to have
this sort of use of force transparency that didn't exist previously,
and they'll have to wear body cameras, they'll have to
identify themselves. They can't wear masks, and that would be
a dramatic change from the operating events in a lot
of places right now.
Speaker 2 (18:48):
They all wear masks except for Bevino. He doesn't wear
a mask.
Speaker 1 (18:52):
He seems to be very confident in this, there's no
doubt about that.
Speaker 2 (18:56):
Apparently the Trump administration really likes him. Is there a
shake up? Then? Is the Trump administration trying to rely
more on the border patrol, which you know a lot
of these aggressive actions that we see are border patrol,
not ICE.
Speaker 1 (19:14):
Correct, That's what's exactly happening, is the way ICE operates. Yes,
they're headquartered in DC. Yes they're part of Homeland Security. Yes,
they're part of the federal government and controlled by the President,
but they have all these local field offices, and in
the end, each local field office basically operates as its
own satellite that has its own policies, And so it matters.
(19:35):
If you have a field office director who is much
more oriented toward a aggressive enforcement posture, you're going to
have more aggressive enforcement in that field office area. Then
if you have a field office director who's not focused
as much on an aggressive enforcement posture. And so in
about six or seven cities, the administration has decided to
(19:57):
replace the field office directors that were there from ICE,
move them to DC, and replace them with people who
are coming from the Border Patrol to again have this
sort of focus on roving enforcement that we were talking
about earlier, where instead of looking for a set number
of people each day that ICE had determined based on
(20:18):
investigations the previous day or the previous week, it would
actually say, no, we're going to go to a more
aggressive posture and start questioning people on the streets about
whether they have a right to be in the United States.
Speaker 2 (20:31):
I haven't heard the answer yet, but the governor of
Illinois asked ICE not to do any enforcement actions on
Halloween weekend.
Speaker 1 (20:41):
I think that's the type of thing where the way
that usually gets resolved is there isn't an answer given
that capitulates to the governor's request, But it's just obviously
done in a way where Ice knows that they don't
want another conflagration happening during Halloween. They detain somebody who
(21:01):
shouldn't have been detained, and now everybody's in that sort
of Halloween frantic mode and riots start happening, and all
kinds of craziness occurs. And so I do think you're
not gonna see an answer that says, Okay, Governor Pritzker,
we agree with you. We're not going to enforce the
law on Halloween. All of these enforcement officers, everybody has
(21:24):
to remember our human beings.
Speaker 2 (21:26):
Well, don't you think that Bevino. I mean, the point is,
and why the Trump administration likes him, is to put
fear into the hearts of immigrants so that they self deport.
I mean, the videos are pretty brutal.
Speaker 1 (21:42):
Well, the point is this, at the end of the day,
putting aside again any personal opinions anybody has, whoever leads
the operation still relies upon people who live in those communities,
who work in those communities, and an inertia gets created
in all of this despite what people think, where that
(22:03):
inertia only allows certain amounts of limitations of conduct to occur.
And that's why you've seen the administration get frustrated and
they say, look, we were at we wanted three thousand
arrests a day, we were at two thousand. We thought
we were going to get there. Now we're back at
one thousand. What is happening? What's going on? And all
(22:24):
of this ignores that all of this enforcement needs to
be done by human beings who have morale issues, who,
by the way, aren't getting paid right now because the
government is shut down, and are worried about are they
going to be able to keep their house, Are they
going to be able to make their car payments? Are
they going to be able to pay their medical bills?
The last thing they're worried about is I want to
(22:46):
start creating a massive riot on Halloween. I don't think
that's a high priority for these poor agents who aren't
getting paid right now. And so I just think, regardless
of who the leaders are, and regardless even of the
message given, there is a certain amount of inertia that
exists there where people you can only take them so far.
(23:08):
And yes, people want to enforce the immigration law, and
the people there at Ice strongly believe in the importance
of enforcing the immigration law. But there's an operational reality
there that they face every day and that they've seen
over the course of years that when you push things
too far, they know that then it becomes very difficult
(23:28):
to unwind that. And so they're just trying to get
an equilibrium where they can enforce the law as strictly
as they can while still maintaining other forms of order
in the society.
Speaker 2 (23:39):
On another issue, Vice President JD. Vance yesterday advocated a
slow down in legal immigration. We have to get the
overall numbers way way down, but he didn't offer a
firm number.
Speaker 1 (23:53):
I think people need to have a realistic understanding of this.
And this is something because I teach immigration law at
various law schools and that's my first class each semester.
As I tell people and I explain, and I say,
look in America right now, we have three hundred and
fifty million people. And each year, unless it's a year
like a COVID year where everything is out of control
(24:15):
and it's not a normal year, if you are just
running the course of things, you would notice each year
if you go to the Department of Homeland Security immigration statistics,
that one million or so. It fluctuates between about eight
hundred thousand and one point two million, but let's just
say one million for the purposes of this people a
(24:35):
year are given a green card, meaning the right to
permanently reside in the United States each year, and that
comes from a number of places. It comes from US
citizens marrying foreign nationals. That's the largest group by far,
that's about four hundred thousand people per year. It comes
from US citizens bringing in their parents who are foreign nationals,
(24:59):
and that happen. Happens because when people either marry a
US citizen and then they become a citizen one day,
or an employer sponsors them, which is a much smaller number,
but they then become a citizen one day, they can
then bring their parents. So that's another group. So those
parents and then any minor essentially step children. That So
(25:23):
let's say you marry a foreign national, if you're a
US citizen and that person had a child who was
under eighteen, that person can qualify also for a lawful
permanent resident status. So that group right there just that
group each year is about six hundred thousand people per year,
like clockwork, And so the question is will you get
rid of any of those individuals? And then between people
(25:47):
who come for high skilled work, which is about one
hundred and twenty thousand a year, plus another group which
is refugees, which the Trump administration has already zeroed out,
so that's gone, but it used to be about one
hundred thousand a year, and then assiles, which are people
who we didn't know were coming but showed up at
our doorstep. That was about one hundred thousand a year.
(26:10):
Now that's been zero about two So the Trump administration
can actually say it's cut two hundred thousand or so
already from that one million that you're gonna see next
year because you're not gonna have refugees or assilies. So
they can say that, but then there's a debate, Okay,
what about those other eight hundred thousand. Is that too
(26:30):
much or too little? And I think that's a debate
that people are having. But honestly, if you're if you
unless you're gonna say that a US citizen is not
allowed to marry a foreign national and live with them
here in America, most of your legal immigration is still
gonna be high because that number is the bulk of
(26:50):
what our immigration is each year. Is a US citizen
marrying a foreign national.
Speaker 2 (26:55):
And first Lady Milania Trump brought her parents into the
United States from Slovenia and they were able to get
US citizenship through what's known as family based immigration, something
Trump himself has criticized and dubbed chain migration. So he's
a pleasure. Leon, Thanks so much. That's Leon Fresco of
(27:17):
Holland and Knight. And that's it for this edition of
The Bloomberg Law Show. Remember you can always get the
latest legal news on our Bloomberg Law Podcast. You can
find them on Apple Podcasts, Spotify, and at www dot
Bloomberg dot com, slash podcast Slash Law, 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
(27:40):
to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
President Donald Trump's efforts to send troops into democratic led
cities is facing its biggest legal tests yet, with a
trial this week over his power to deploy the National
Guard to Portland, Oregon to counter protests. And of course
there is the deployment to Chicago, which is in a
holding mode right now before the Supreme Court. My guest
(00:31):
is immigration law expert Leon Fresco, a partner at Holland
and Knight. There are lawsuits challenging Trump's deployments in Los Angeles, Chicago, Portland,
and DC making their way through the courts. Have any
of them so far answered the question of whether he
legally invoked Section twelve four h six of Title ten
(00:56):
to bring state National Guard troops under federal cos well.
Speaker 1 (01:01):
The closest cases that have done this are the two
to one panel decision in the Portland case, where the
Ninth Circuit Court of Appeals ruled in favor of President Trump.
And they said that the way a court analyzes this,
they're allowed to analyze it. So at least they got
that far. They didn't say that the courts can't analyze it,
(01:24):
but they said they have to use a highly deferential
test and that the standard of review was quote, whether
there was a colorable assessment of the facts in law
within a range of honest judgment, which is a highly
deferential standard that basically said, if the President had any
sort of decent argument for saying that the Guard needed
(01:47):
to be deployed in order to either enforce federal law
or prevent rebellion circumstances, that would be enough. The dissenting
judge said, no, no, no, this is just like a normal
factual question where you have a hearing or a trial
and you come to the factual decision like any trial,
(02:08):
was there a murder, yes or no, it's not any
difference that's given you have a trial, and in this case,
whoever wins under a preponderance of the evidence standard would win.
And the dissenting judge said that there wasn't enough evidence
that there was actually any sort of rebellion or other
(02:28):
issues in Portland. And so now this two to one
decision is now going to go to on bank review.
The Chief Judge said for the court, without needing anybody
to ask, the Chief Judge, there should be on bank review.
And now there's going to be on bank review to
determine whether that two to one decision would apply. In Chicago,
(02:51):
we have a similar situation where the City of Chicago
and the State of Illinois also sued, arguing that the
deployment of the National Guard in the Chicago areas also
violated the Statute and the Tenth Amendment and the posse
comitatis law, which prevents federal troops from enforcing civil laws.
(03:13):
And the judge in that case issued a temporary restraining order.
The Seventh Circuit upheld the ruling, and the President Trump
asked the Supreme Court to lift the tro And now
the Supreme Court in that case has asked for additional
briefing to try to determine whether these words regular forces
(03:35):
in the Statute means military forces, and then how that
interpretation affects the president's authority to federalize the Guard. And
so at the moment, that's where we are on these things.
We don't know exactly what the president can do, what
the standard of review is, et cetera.
Speaker 2 (03:55):
So let's go to the Supreme Court for a second.
And you know that's because the Trump administration filed an
emergency petition to allow them to deploy the troops to Chicago.
So nine days past before the justices issued this order
requesting more information. And this has been a court that's
been very quick to answer Trump's emergency requests, usually in
(04:19):
his favor. What does it tell you that with this request,
they're asking about the specific wording of the law, which
says a president may deploy the guard when he is
quote unable with the regular forces to execute the laws
of the United States.
Speaker 1 (04:38):
What is interesting is they're trying to figure out because
there's two different types of I would say armed personnel
that's discussed. One is regular forces. So who are these
regular forces that the president is allowed to use? And
then when those quote unquote regular forces fail, then the
(04:59):
president is allowed to call in federal service members and
units of the National Guard of any state. So the
question is does regular forces mean that the president can
already send in military troops. That's a little bit complicated
because of it is then who are these federal service
members that the president is then allowed to send in
(05:21):
plus the units of the National Guard of any state.
So that's the question. Does it mean US military forces
or does it mean people like FBI, you know, Homeland
security investigation and things of that nature, so sort of
federal police power force type people, but not actual US
military troops. I think it would make a lot less
(05:45):
sense if regular forces didn't just mean FBI ice HSI,
that kind of thing, the sort of people who enforce
the federal law, the ATF that kind of group as
opposed to the military. Because of it also meant the military.
Then who are these quote unquote federal service members that
can be called into service if the quote unquote regular
(06:09):
forces are not able to execute the law. So that's
what I think it means, but we'll have to wait
and see what the Supreme Court says. It means.
Speaker 2 (06:17):
They don't seem to be in a hurry to decide
because the briefing schedule puts the briefings up until November seventeenth,
and then they have to decide. So that means what
three weeks or so where there won't be any deployment
of troops, correct.
Speaker 1 (06:33):
I mean, this is one of the most complicated and
important consequential questions probably that the Supreme Court has had
in the last couple of decades, because it really does
get to the heart of what a president can and
can't do. With regard to using the military in the
normal streets of the big cities of America. So this
(06:55):
is not something to trivialize or to issue any kind
of quick ruling on. And I think if there was
an actual place in America right now that was ungovernable
and where people couldn't go to work and there were
barricades everywhere and nobody could go to school, maybe there
would be urgency here. But that's not really the urgency
(07:19):
anyone is talking about. There's not a city in America
where no one can go to work, or go to school,
or get treated in a hospital or any of those
major things. At all of these cities. Sports events are
still going on, Concerts are still going on, all of
these things, and so it's hard to say there's an
interrection going on. In a true national emergency where none
(07:40):
of those things were going on, maybe we'd have a
faster ruling. But I think the Court understands here it's
better to get it right.
Speaker 2 (07:48):
But is a Supreme Court to look at the facts
or are they going to look at the law and
interpret that.
Speaker 1 (07:55):
Well, no, I'm saying they're looking at these facts unofficially
to determine how fast they're going in the speed of
the case. But I think what they're going to look
at for the decision in the case is the level
of defference that the President's determination gets. And then based
on the level of defference, they may remand for a
(08:17):
trial or hearing based on that level of difference, or
they may decide they have enough evidence to move forward
with that level of difference and decide, here's what the
facts dictate. Based on the level of difference, we decide.
So it could go either of those two ways, but
we'll just have to wait for the Supreme Court to say.
(08:37):
And plus that may end up being different in Chicago
versus in Portland or in Los Angeles. They may decide
that there is a bigger crisis in one location than
in another, and so in one location they can deploy
the federal troops, and in another location they cannot because
it doesn't rise to whatever new standard they decided to
(08:58):
apply in this case.
Speaker 2 (09:00):
Let's turned out to Greg Bavino, the chief of the
Border Patrol's El Centro sector in California, who's been very
high profile in the Trump Administration's crackdowns on immigration in
sanctuary cities. He's been three decades with the Border Patrol,
(09:20):
and he's emerged as the face of the Trump administration's
most aggressive operations against migrants in these democratic led cities.
Speaker 1 (09:31):
Well, he comes from the Border Patrol, from the US
Customs of Border Protection. He doesn't come from ICE, which
is the Immigration and Customs Enforcement division that actually is
in charge with the detention, apprehension, and removal of people
who are here illegally. That's who does it. It's nice.
The Border Patrol has a different mission. They have two
(09:53):
different parts. They have one that protects the United States
from people trying to cross in between ports of entry,
and they have a second mission of guarding ports of
entry themselves so that people don't get through the ports
of entry who shouldn't get through. And this is the
area of the Border Patrol where mister Baveno comes from.
(10:14):
And this has happened in the past because what happens
is that within the Department of Homeland Security they get
the impression that the people who come through the Border
Patrol have a more police oriented view of the world
because that's what they're doing. They're actually walking around looking
for crime, so to speak. If they see someone cross
(10:36):
the border, then they're going to apprehend them the same
way a police officer if they see someone robbing a store,
they will apprehend them. Whereas ICE traditionally doesn't have that
ethos of operating as roving cops on a beat. They
have more of a here's a list of people we
are passed with deporting today, and now we need to
(10:58):
either go pick them up at work, or pick them
up in the courthouse, or pick them up at home,
and it's a much more targeted planned day. That's how
ICE likes to operate, is within the targeted planned day
for operational concerns. And this has developed over thirty years.
This is not something that's happened over a day or two.
(11:19):
Because what happens is when ICE starts operating in the
same way local police would start operating, which is just
look around and try to find crime, then what you're
doing is looking around and trying to find people who
are there illegally. So just their existence in America is
the crime. And whether you like this policy or don't
(11:43):
like the policy, I'm not even saying anything about the policy.
I would just hope that the listeners of your broadcast
would agree that whether you like it or not when
that gets implemented. When ICE gets deployed in the same
way local police would be deployed, it creates tension on
both sides of the equation, where the people who don't
(12:06):
like ICE deployed in that manner start protesting, start barricading ICE,
start hiding people in their houses, and start doing everything
they can to resist ICE operating in that manner. And
this isn't even new either. You can find stories about
this every day for the last thirty years. It's just
that when you do it at a higher scale, you
(12:27):
get more of it. Or if you don't do this,
then you have the people who say, well, we're not
getting enough arrests, And it's true, you're not going to
get enough arrests if you don't have these roving enforcement
arrests that happened where you could just grab thirty people
at one place at one location just because you think
(12:48):
it looks suspicious there. Yes, that will increase the number
of arrests, but that also increases the level of tension
that you're tightening in that area when you do that.
And again I'm not thinking that, I mean you should
do it or you shouldn't do it, but that's why
the Trump administration has moved a lot of the ICE
(13:09):
agents who are leading these various local locations out of
their positions and is trying to bring in border patrol
people like mister Bovino, because it's saying we need to
change the ethos of ICE and turn it into a
police like unit that's roving around looking for crime, so
to speak. But in this case, again, the crime is
(13:31):
just the existence of the human being in America, which
is what makes it complicated. So you're not observing someone
stealing something, or you're not observing someone injuring somebody. You're
just observing someone standing there and you're asking yourself, is
this person that's standing there standing there illegally and you
(13:52):
don't know they might be, they might not be. But
the act of asking, over and over and over again
creates a level of tension that's completely different than any
other kind of police operation creates. And that's why I,
as I explained previously, I prefers the ethos of saying, look,
I'm sorry, this person Joe Smith is on a list,
(14:14):
they committed a crime or they were ordered deported in
two thousand and eight, and they've managed to stay here
seventeen years. Why do you think that you should defend
this person. That's a much easier law enforcement role to defend,
and that's why they like that as opposed to these
roving operations.
Speaker 2 (14:32):
Coming up next, the governor of Illinois makes a Halloween
request to ice. A group of journalists, news advocacy organizations,
and protesters are suing the government, claiming that federal agents
aggressive tactics in Chicago violated their rights. The case has
(14:52):
grown into something of a referendum on the repeated use
of force by federal agents in the Trump administration crackdown
on illegal immigration. I've been talking to immigration lawyer Leon
Fresco of Honda Night Soully on in that Chicago case.
Federal Judge Sarah Ellis has issued some orders, including requiring
(15:16):
agents to wear visible identification and issue warnings before using
weapons like tear gas or pepper spray. And she's expressed
alarm over videos and photographs that show the agents confronting
protesters and deploying teargas at a weekend Halloween event. We've
(15:37):
been talking about Greg Bavino, the Border Patrol chief, and
she had him on the stand for about an hour
the other day, asking him about the enforcement tactics, and
she ordered him to come back every day to report
to her. But the Seventh Circuit Court of Appeals paused
that order.
Speaker 1 (15:56):
Why well, the Seventh Circuit issued a vary shit decision
putting it on hold. But we can infer from that
that they agreed with the government's argument that the problem is,
and you have to look at this from a practical perspective,
not just from a well, what's the problem with one
hour of coming in and speaking to the judge every day?
(16:17):
But the truth is, if you're doing that, if you're
speaking to the judge every day for one hour, you're
legitimately preparing to give that testimony. Because no one just
sends a witness in to speak to a federal judge
without preparation for the testimony, giving them facts, giving them
everything that's happening that day. So basically, you will have
(16:37):
turned the head of the law enforcement operation into a
professional witness. This person wouldn't actually be able to do
any other work all day. Their entire day would be
devoted to learning the facts that they were going to
give the judge that day, preparing the testimony, and then
testifying that That would be an entire day of work,
(16:58):
and the federal government said, that's that been a thing
that's ever existed where we've ever had a federal judge
turn a US law enforcement official into a federal witness
that has to come every day and just do that
and not actually do the job they're supposed to do.
And they point out the federal government correctly that even
(17:21):
the plaintiffs didn't ask for this, This was just something
the judge did out of frustration with the federal government.
So the plaintiffs didn't ask for it, because I doubt
they would have even imagined the world where such relief
could have ever been granted. But the judge was so
frustrated that the judge granted the relief. And so I
do think it was very helpful to the federal government
(17:42):
to make an argument that, hey, if the plaintiffs don't
want something, why is the judge ordering it.
Speaker 2 (17:48):
Still in place? Is her order that Bevino wear a
body camera and the government has to turn over all
reports documenting when agents used force against members of the
public and also the body camera video by tomorrow.
Speaker 1 (18:05):
So correct, all of the sort of what I would
call transparency requirements and the use of force are all
still in effect, and we will wait and see what
both the Seventh Circuit says in principle at the end
of this and maybe what the Supreme Court says, and
if that is hell to be in effect, and that
could be something that could actually apply to all of
(18:27):
the ICE agents nationwide, is that they have to have
this sort of use of force transparency that didn't exist previously,
and they'll have to wear body cameras, they'll have to
identify themselves. They can't wear masks, and that would be
a dramatic change from the operating events in a lot
of places right now.
Speaker 2 (18:48):
They all wear masks except for Bevino. He doesn't wear
a mask.
Speaker 1 (18:52):
He seems to be very confident in this, there's no
doubt about that.
Speaker 2 (18:56):
Apparently the Trump administration really likes him. Is there a
shake up? Then? Is the Trump administration trying to rely
more on the border patrol, which you know a lot
of these aggressive actions that we see are border patrol,
not ICE.
Speaker 1 (19:14):
Correct, That's what's exactly happening, is the way ICE operates. Yes,
they're headquartered in DC. Yes they're part of Homeland Security. Yes,
they're part of the federal government and controlled by the President,
but they have all these local field offices, and in
the end, each local field office basically operates as its
own satellite that has its own policies, And so it matters.
(19:35):
If you have a field office director who is much
more oriented toward a aggressive enforcement posture, you're going to
have more aggressive enforcement in that field office area. Then
if you have a field office director who's not focused
as much on an aggressive enforcement posture. And so in
about six or seven cities, the administration has decided to
(19:57):
replace the field office directors that were there from ICE,
move them to DC, and replace them with people who
are coming from the Border Patrol to again have this
sort of focus on roving enforcement that we were talking
about earlier, where instead of looking for a set number
of people each day that ICE had determined based on
(20:18):
investigations the previous day or the previous week, it would
actually say, no, we're going to go to a more
aggressive posture and start questioning people on the streets about
whether they have a right to be in the United States.
Speaker 2 (20:31):
I haven't heard the answer yet, but the governor of
Illinois asked ICE not to do any enforcement actions on
Halloween weekend.
Speaker 1 (20:41):
I think that's the type of thing where the way
that usually gets resolved is there isn't an answer given
that capitulates to the governor's request, But it's just obviously
done in a way where Ice knows that they don't
want another conflagration happening during Halloween. They detain somebody who
(21:01):
shouldn't have been detained, and now everybody's in that sort
of Halloween frantic mode and riots start happening, and all
kinds of craziness occurs. And so I do think you're
not gonna see an answer that says, Okay, Governor Pritzker,
we agree with you. We're not going to enforce the
law on Halloween. All of these enforcement officers, everybody has
(21:24):
to remember our human beings.
Speaker 2 (21:26):
Well, don't you think that Bevino. I mean, the point is,
and why the Trump administration likes him, is to put
fear into the hearts of immigrants so that they self deport.
I mean, the videos are pretty brutal.
Speaker 1 (21:42):
Well, the point is this, at the end of the day,
putting aside again any personal opinions anybody has, whoever leads
the operation still relies upon people who live in those communities,
who work in those communities, and an inertia gets created
in all of this despite what people think, where that
(22:03):
inertia only allows certain amounts of limitations of conduct to occur.
And that's why you've seen the administration get frustrated and
they say, look, we were at we wanted three thousand
arrests a day, we were at two thousand. We thought
we were going to get there. Now we're back at
one thousand. What is happening? What's going on? And all
(22:24):
of this ignores that all of this enforcement needs to
be done by human beings who have morale issues, who,
by the way, aren't getting paid right now because the
government is shut down, and are worried about are they
going to be able to keep their house, Are they
going to be able to make their car payments? Are
they going to be able to pay their medical bills?
The last thing they're worried about is I want to
(22:46):
start creating a massive riot on Halloween. I don't think
that's a high priority for these poor agents who aren't
getting paid right now. And so I just think, regardless
of who the leaders are, and regardless even of the
message given, there is a certain amount of inertia that
exists there where people you can only take them so far.
(23:08):
And yes, people want to enforce the immigration law, and
the people there at Ice strongly believe in the importance
of enforcing the immigration law. But there's an operational reality
there that they face every day and that they've seen
over the course of years that when you push things
too far, they know that then it becomes very difficult
(23:28):
to unwind that. And so they're just trying to get
an equilibrium where they can enforce the law as strictly
as they can while still maintaining other forms of order
in the society.
Speaker 2 (23:39):
On another issue, Vice President JD. Vance yesterday advocated a
slow down in legal immigration. We have to get the
overall numbers way way down, but he didn't offer a
firm number.
Speaker 1 (23:53):
I think people need to have a realistic understanding of this.
And this is something because I teach immigration law at
various law schools and that's my first class each semester.
As I tell people and I explain, and I say,
look in America right now, we have three hundred and
fifty million people. And each year, unless it's a year
like a COVID year where everything is out of control
(24:15):
and it's not a normal year, if you are just
running the course of things, you would notice each year
if you go to the Department of Homeland Security immigration statistics,
that one million or so. It fluctuates between about eight
hundred thousand and one point two million, but let's just
say one million for the purposes of this people a
(24:35):
year are given a green card, meaning the right to
permanently reside in the United States each year, and that
comes from a number of places. It comes from US
citizens marrying foreign nationals. That's the largest group by far,
that's about four hundred thousand people per year. It comes
from US citizens bringing in their parents who are foreign nationals,
(24:59):
and that happen. Happens because when people either marry a
US citizen and then they become a citizen one day,
or an employer sponsors them, which is a much smaller number,
but they then become a citizen one day, they can
then bring their parents. So that's another group. So those
parents and then any minor essentially step children. That So
(25:23):
let's say you marry a foreign national, if you're a
US citizen and that person had a child who was
under eighteen, that person can qualify also for a lawful
permanent resident status. So that group right there just that
group each year is about six hundred thousand people per year,
like clockwork, And so the question is will you get
rid of any of those individuals? And then between people
(25:47):
who come for high skilled work, which is about one
hundred and twenty thousand a year, plus another group which
is refugees, which the Trump administration has already zeroed out,
so that's gone, but it used to be about one
hundred thousand a year, and then assiles, which are people
who we didn't know were coming but showed up at
our doorstep. That was about one hundred thousand a year.
(26:10):
Now that's been zero about two So the Trump administration
can actually say it's cut two hundred thousand or so
already from that one million that you're gonna see next
year because you're not gonna have refugees or assilies. So
they can say that, but then there's a debate, Okay,
what about those other eight hundred thousand. Is that too
(26:30):
much or too little? And I think that's a debate
that people are having. But honestly, if you're if you
unless you're gonna say that a US citizen is not
allowed to marry a foreign national and live with them
here in America, most of your legal immigration is still
gonna be high because that number is the bulk of
(26:50):
what our immigration is each year. Is a US citizen
marrying a foreign national.
Speaker 2 (26:55):
And first Lady Milania Trump brought her parents into the
United States from Slovenia and they were able to get
US citizenship through what's known as family based immigration, something
Trump himself has criticized and dubbed chain migration. So he's
a pleasure. Leon, Thanks so much. That's Leon Fresco of
(27:17):
Holland and Knight. And that's it for this edition of
The Bloomberg Law Show. Remember you can always get the
latest legal news on our Bloomberg Law Podcast. You can
find them on Apple Podcasts, Spotify, and at www dot
Bloomberg dot com, slash podcast Slash Law, 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
(27:40):
to Bloomberg
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