June 14, 2025 • 37 mins
Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the top immigration-related issues of the week from the fight over Trump deploying the National Guard to Los Angeles to the handcuffing of California’s US Senator Alex Padilla. Jimmy Gurule, a professor at Notre Dame Law School and the former Under Secretary for Enforcement at the Department of the Treasury, discusses the legal fight over Trump’s tariffs. June Grasso hosts.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:13):
There were demonstrations in more than a dozen major cities
across the country this week over the Trump administration's immigration crackdown,
as ICE conducts high profile workplace raids. In response to
the protests in Los Angeles, President Trump deployed thousands of
Guard troops and hundreds of active duty Marines to the
(00:34):
city without the request of the state's governor.
Speaker 3 (00:38):
If we weren't there, if we didn't bring in the
National and the Marines, and you would probably have a
city that was burning.
Speaker 2 (00:45):
To the ground, just like it was a number of
months ago.
Speaker 3 (00:48):
With the housing.
Speaker 2 (00:50):
But California took Trump to court, saying his choice to
deploy the National Guard to police civilian communities is an expansive, dangerous,
concesent option of federal executive power, and on Thursday, federal
Judge Charles Pryor found that Trump's actions were illegal and
that the LA protests fell far short of the legal
(01:11):
requirements of a rebellion needed to justify a federal deployment.
He ordered Trump to return command of the guardsman to
California Governor Gavin Newsom.
Speaker 4 (01:22):
He must work under the constraints as a constitutional officer
of the Constitution of the United States of America. That's
what this court order demands of the President of the
United States. He is not a monarch, he is not
a king, and he should stop acting like one.
Speaker 2 (01:40):
But just a few hours later, a federal appeals court
temporarily blocked the judge's order, saying it will hold a
hearing on the matter on Tuesday. Joining me is immigration
law expert Leon Fresco, a partner at Holland and Knight
and the former head of the Office of Immigration Litigation
in the Obama administration.
Speaker 5 (01:59):
Leon J.
Speaker 2 (02:00):
Judch Charles Bryer, who by the way, is Justice Stephen
Bryer's brother, wrote this scathing opinion, finding that the president
acted illegally in deploying the troops, exceeding both his statutory
authority and violating the Tenth Amendment. Tell us how he
came to that conclusion.
Speaker 1 (02:19):
So there's a couple of things. The first was that
President Trump said that he had authority under ten USC.
Section twelve four h six, which provides that the president
can call federal service members and units of the National
Guard of any state when the United States is either
invaded or is in danger of invasion, or there's a
(02:41):
rebellion or a danger of rebellion, or most notably, that
the president is unable with the regular forces to execute
the laws of the United States. And so that was
the real argument that was being made there, And what
Judge Briar really tried to get a grip on and
try to figure out was, there's two questions here. One,
(03:05):
did you violate that statue because there really wasn't any
type of rebellion or an inability to enforce the law.
But second, is there some inherent authority that the president
has that makes these kinds of questions unreviewable? Because even
if this was a dispute about the rebellion or not,
(03:26):
the Trump administration was saying, this is our decision, this
is committed to our discretion. It's not for the courts
to review this. And so this is where Bryer said
two different points. One, on the statue, there was no
consultation with the governor, which is required under the statue.
Congress wrote that there has to be meaningful consultation with
(03:47):
the governor before taking over the state's national guard. And secondly,
there wasn't this rebellion or invasion or inability.
Speaker 6 (03:57):
To enforce the law.
Speaker 1 (03:59):
So nothing justified the federalization.
Speaker 6 (04:02):
Of the National Guards. And this is the kind of.
Speaker 1 (04:05):
Determination that can be reviewed. And if you can't review
this determination, then there is no check of any kind
on the President being able to deploy the National Guard
for any purpose, at any time, for any reason. And
that's what really was animating a lot of his concerns
in the ruling during the oral arguments, and I think
(04:29):
that's going to be really the main question that is
grappled with both by the Ninth Circuit and by the
Supreme Court ultimately, this question of is this really unreviewable?
And if it's unreviewable, what does that mean moving forward
for giving the president authority to mobilize federal troops whatever
the presidencyes fits.
Speaker 2 (04:50):
So we've talked before about the court's deferring to the
president's decisions on foreign policy and national security, but Judge
Bryant said this case involved domestic use of military force,
on which the courts can certainly weigh in. Is that
the line that he found.
Speaker 1 (05:09):
To correct the limiting principle that at the end of
the day led the judge to believe this is reviewable
is the fact that if this was something that in
some way implicated foreign policy or the use of the
military to deter an actual foreign invasion happening, that might
(05:30):
be something where the courts have no role. But here
the fact that the fact pattern was in all four corners.
Speaker 6 (05:40):
Limited to a domestic dispute.
Speaker 1 (05:43):
That led the judge to say, in this instance, where
you have a federal military action in a domestic dispute,
the courts have to have an ability to analyze this
and to be able to have some constraints on presidential authority. Otherwise,
if it were to be committed to a discretion of
(06:06):
the president, would mean that the president could just employ
these federal troops at any time for any purpose, and
he viewed that as unacceptable under the Constitution. Now, I
think the Trump administration would make some arguments, which they've
done in is that the influx of foreign nationals.
Speaker 6 (06:22):
Is itself an invasion.
Speaker 1 (06:24):
But the courts, other than one judge in one of
the cases in Pennsylvania, the courts so far have not
actually characterized the influx of foreign nationals during the Biden
administration that as an actual invasion in the sense that
the folks that entered are there to overthrow the government
of the United States.
Speaker 2 (06:43):
Just within hours of Briar's decision, the Trump administration went
to the Ninth Circuit and a panel of judges consisting
of two Trump appointees and one Biden appointee. But Judge
Briar's decision on hold and they're going to have a
hearing on Tuesday. How do you think the Ninth Circuit
did that when Judge Bryer had found irreparable harm to
(07:05):
the city and that the presence of troops in LA
was itself inflaming tensions with protesters.
Speaker 1 (07:13):
Well, there was an administray to stay put until Friday
for the district Court, and so all that was really
done by the Ninth Circuit. And this was a unanimous
decision to the extent that it's a one page decision.
But nevertheless, there wasn't a dissent from this administrative stay.
Is they just basically held this in obeyance to have
(07:35):
a hearing on Tuesday and then they might make a
decision shortly thereafter. But I do think there is probably
some view of the events going on in the world
right now and some desired to maybe keep the status
quo for the weekend.
Speaker 6 (07:51):
Just in case, with all.
Speaker 1 (07:53):
The conflagrations going on everywhere, it might not necessarily be
a good thing to be having civil unrest in Los Angeles.
So I think there might be some prudential consideration there
in keeping the stay over the weekends. But you know,
hard to read minds, but I think that probably is
underlying some of this.
Speaker 2 (08:13):
There are concerns that President Trump might send troops to
other cities because his June seventh Proclamation is broad and
allows troops to be sent anywhere protests are likely to occur.
Will Judge Bryar's order, if upheld on appeal, have any impact.
Speaker 1 (08:33):
So the order itself certainly provides a president for other
states and other cities to actually look at this order
and say two things. One that there is court jurisdiction
in order to review this. And I think that's going
to be the key argument to the extent that that
gets to the Supreme Court is forget about interpreting the statues.
(08:55):
Is there actually jurisdiction to interpret the statues? And then
once you start getting to interpreting the statue, then the
administration is in a bit of a more difficult pickle here,
because then you have to decide is there a rebellion,
is there an invasion?
Speaker 6 (09:11):
Is there an inability to enforce the law?
Speaker 1 (09:14):
And there at the moment, the factual record on that
is not as full sum for the administration as they
might want going into court, and so they would definitely
need more than what happened in Los Angeles to be
able to deploy the National Guard in the military, especially
to enforce ice operations. But they might not need anything
(09:36):
at all if the Supreme Court ends up saying that
this isn't something that's reviewable. But I think every court's
going to have the same struggle that just Briar ed,
which is it makes sense in one sense to defer
to the administration because these are very serious questions, These
are very difficult issues.
Speaker 6 (09:54):
But if you have complete.
Speaker 1 (09:56):
Deference, what is to stop a very arbitraryan a precious
application of this for pretty much any reason.
Speaker 6 (10:03):
And so that's where this gets complicated.
Speaker 2 (10:06):
The last time a president activated a state's National Guard
without a request from the governor was in nineteen sixty five,
when President Lyndon Johnson used the Guard to protect civil
rights demonstrators in Alabama after the governor refused to do so.
Some are pointing to that as precedent for Trump's actions here.
Speaker 1 (10:28):
Well, I think the problem is there you would say
the same thing, which was there was an inability to
enforce the federal law. The states did not want to
enforce the federal law, and so you needed to actually
have the National Guard there to enforce the federal law.
Here there is an assertion that the states are not
enforcing the federal law. But the problem is, in these
(10:49):
immigration contexts, the states don't enforce the federal law. They're
not supposed to round people up and deport them, so
that's just for the federal government to do. Now, if
the state police was actually blocking the ability to find
people for deportation, I think the President would be in
(11:10):
a much stronger ground here, But they would need that
sort of evidence to be presenting the court in this context,
which is here we are just trying to have ice
agents enforce the law, and we're encountering actual resistance from
state and local officials to our ability to do this,
as opposed to verbal you know, hey, go do this,
(11:31):
which is you know most of what you see. If
there was actual impeditent and roadblock, then I do think
this argument would be a much stronger of the administration's part.
Speaker 2 (11:41):
Stay with me. Leon. Coming up next, I'll continue this
conversation with Leon Fresco. We'll discuss why Senator Alex Paedilla
of California was forcibly removed from the Homeland Security Secretary's
press conference and handcuffed. I'm June Grosso and you're listening
to Bloomberg. This week, President Trump ordered the deployment of
(12:02):
about four thousand National Guard troops and seven hundred marines
to Los Angeles following protests that have been concentrated in
a few blocks downtown over his stepped up enforcement of
immigration laws. And on Thursday, as lawyers for the state
and the federal government were arguing in La federal court
(12:23):
about whether the President had overstepped his authority by deploying
the National Guard without the governor's request, in the Federal Building,
the senior US Senator from California, Alex Paedia, was forcibly
removed from the press conference of Homeland Security Secretary Christy
Nome as he interrupted her to try to ask a question.
Speaker 1 (12:44):
I have a question.
Speaker 7 (12:45):
The secretary.
Speaker 2 (12:48):
Of the senator was pushed from the room by FBI
agents and Secret Service, who then forced him to the
ground in the hallway outside and handcuffed him.
Speaker 7 (12:59):
If this is how the Department of homett Security responds
to a senator with a question, you can only imagine
what they're doing to farm workers, to cuts to day labors.
Speaker 2 (13:15):
I've been talking to immigration law expert Leon Fresco, a
partner at Hollanda Knight. Leon, let's put this incident with
Senator Padilla in context. In the last two months, there
have been arrests of a Wisconsin judge, a New Jersey congresswoman,
and a California union leader, all with regard to immigration
(13:36):
issues and the borders are. Tom Holman has even threatened
to arrest the governor of California for obstructing immigration enforcement,
and the President said that would be great. And now
we have this handcuffing of a US senator. Is this
an attempt to try to intimidate officials, to warn them
about interfering with the ICE crackdown?
Speaker 1 (13:58):
Well, I think there's a bunch of points that all
have to be separated factually and contextually. There is, on
one side of the spectrum a scenario whereby ICE is
in the middle of an operation and there's some official
who does something that makes it so that that operation
is not successful. So if you had the judge who
(14:18):
escorts the person that ICE is looking for outside of
a different door so that ICE can't find them, you
can say that that's harboring or concealing, because that statute
is very broad and pretty much any assistance.
Speaker 6 (14:32):
Like that that you give to someone who you.
Speaker 1 (14:34):
Know is in the country illegally, you are violating the statue.
So that's one scenario. Then you have the other scenario.
The two things that have happened, one with the congresswoman
from New Jersey in the detention facility and now Senator Pania.
These are very complicated because we don't have anybody with
(14:55):
clean hands in the sense of you have in the
video Senator Pania coming into this press conference. You have
Secretary Nomes speaking and he's speaking over her, and he's
walking toward her direction, and it's speaking over her. It's
not like he waits till there's a pause to ask
a question. He's verbally interrupting her press conference. But then
(15:17):
you had that dealt with in a manner where it's
not just that he's taken out of the room and
the door is closed. Let's say, but he's taken out
of the room, he's put to the floor, and he's handcuffed,
and so there's the argument there about excessive force and
whether any of that was necessary, and those are going
to be complicated issues. I don't think much is going
to happen. I don't think the federal government's going to
(15:40):
prosecute any of the agents involved. I don't know what's
going to happen with regard to these escalations moving forward.
Ideally we would come toward some sort of pass forward
in this country where there's consensus on immigration.
Speaker 2 (15:56):
Enforcement is part of this, the pressure on ice age
and to increase the rest to something like three thousand
a day, up from roughly six hundred and sixty a day.
Speaker 1 (16:06):
You know, we're in months six now of this administration.
I think in months one, two, and three, where there
was this discussion about really focusing on criminal backgrounds first,
that was happening, and yes there might be some people
who were protesting, but those people were really on the
fringes because it's really hard to argue against supporting people
(16:28):
with criminal convictions. But I do think there needs to
be some discussion about this, and I even think the president,
to his credit, actually said that when he said in
a press conference this week that he was concerned that
enforcement might be affecting the farms and the hospitality industry,
and so there might be some opportunity here to provide
(16:50):
some guidance. And what I've heard from people in the
sphere who are more reasonable is, look, people with criminal
backgrounds and people who came in the last four years
during the period where there was this open border policy
of people coming through the border at hundreds of thousands
a month, that should be the focus. And then if
(17:12):
you're sort of here before twenty twenty, maybe you wouldn't
be a focus of the immigration enforcement. Something like that
I think would blower the tensions here while still giving
plenty of work that can occupy this administration for the
rest of the four years.
Speaker 5 (17:29):
Yeah.
Speaker 2 (17:29):
On Thursday, Trump did seem to be softening his stance
on undocumented farm workers and hospitality workers.
Speaker 3 (17:38):
Our farmers are being hurt badly by you know, they
have very good workers. They've worked for him for twenty years.
They're not citizens, but they've turned out to be, you know, great,
and we're gonna have to do something about that.
Speaker 2 (17:51):
I mean, is there a way to carve out certain
migrants who work on farms or in the hospitality industry.
Speaker 1 (17:57):
That might be unseemly to right at exactly like that.
But there have been prosecutorial discretion memos both under the
Obama administration and the Biden administration. And in fact, there's
a Supreme Court case where the State of Texas challenge
the Biden administration prosecutorial discretion memo, and the Supreme Court
said that none of your business, State of Texas, the
(18:19):
Biden administration can have a prosecutorial discretion memo. So to
the extent that President Trump wants the AHS to have
such a prosecutorial discretion memo, yes, it could say we're
going to not focus on the farms and the hospitality industry.
But I think probably what would be well advised is
(18:40):
rather than just those very narrow carve outs, I think
it's about a larger sort of way.
Speaker 6 (18:47):
To diffuse tensions.
Speaker 1 (18:48):
And I think that that would probably be a memo
that said, yes, you can stick industries that you're concerned about.
But I think again, there's plenty of people for ICE
to put through.
Speaker 6 (18:59):
The product says, if you.
Speaker 1 (19:00):
Are limiting it to criminal non citizens and also people
who've arrived during the Biden administration. Let's say that's still
millions of people. You will not get to all of
those people, if that's what you focus on, and you
don't have to say, well, we won't one hundred percent
go after other people, but you can say those folks
will be deprioritized and will not be the subjects of
(19:23):
any affirmative operations. And I think that would do a
lot toward diffusing a lot of this tension, but still giving,
Like I said, plenty of work for the Trump administration
to do with regard to removal lean.
Speaker 2 (19:37):
I want to talk for a moment about the case
of Mahmoud Khalil, who was a leader in the pro
Palestinian protests at Columbia and the first person arrested in
the Trump crackdown on student activism.
Speaker 1 (19:51):
There are two grounds for trying to deport him. The
most important ground, the court said, is this statute, which
says that if the Secretary of State finds them that
your conduct would be detrimental to the United States foreign policy,
they can order your deportation. And what the court found
was that this provision is constitutionally void because it's too vague.
(20:12):
The vagueness doctor means that when you pass the law,
nobody knows how to implement the law in a way
where they.
Speaker 6 (20:19):
Can follow it.
Speaker 1 (20:19):
So suppose the Congress passed the law that said you
can't be out too late at night, what would that mean?
You would know what too late at night meant. Would
it mean eight pm, would it mean nine pm? Would
it mean ten pm? And so that would be void
for vagueness, so one would know. And it's the same
concept here. How do you know what speech you can
make that's going to make you subject to a policy
(20:43):
that says that you can be deported for violating the
foreign policy interests of the United States, And so unless
there's clearer guidance, given that's a too vague statute.
Speaker 6 (20:55):
Now, the problem is.
Speaker 1 (20:56):
There's two other big arguments that the government has. They're
saying that they're also trying to deport him because he
lied on his green card application, because he didn't disclose
that he had worked for the Syria Office and the
British Embassy in Bay Route. Also that he didn't disclose
that he worked at the United Nations Relief and Works
Agency for the Palestinian refugees. And he also didn't disclose
(21:18):
he was a member of the Columbia University Apartheid the
Best Group, and so all of these things would have
been informative in his green card application, and the fact
that he didn't disclose those leads him to also be
deportable on that and so that's one argument. And the second
argument is whether this habeas petition that was filed by
mister Khalil is actually the right for him to make
(21:39):
any of these arguments or whether he can only make
it in the removal process so that it would be
at the end if he's ordered to deport it, only
then could he make his argument. That's also very strong
argument that the government has, and so we're going to
have to see both of those before we see if
mister Khalil ultimately gets freed from dessension.
Speaker 2 (22:00):
The New Jersey judge had ruled that the government couldn't
continue to hold him on that first ground, the foreign
policy ground, but on Friday, the government's submitted papers saying
that it could continue to hold him on the second
ground that he'd lied on his green card application. So
the judge refused to order his release, saying he hadn't
(22:20):
presented enough evidence that detention on those grounds was unlawful.
Is lying on your green card application enough to get
you deported?
Speaker 1 (22:30):
I mean the can because given that he's not a citizen,
he doesn't have to be denaturalized, which is a very
long process that involves a federal court trial. That doesn't
need to happen, so well, the only thing that needs
to happen is he would need to be placed into
removal proceedings. And then when he's placed into removal proceedings,
the only thing that needs to happen there is that
an immigration judge needs to agree that he lied on
(22:52):
his green card application, and that basically that's going to
be an issue of materiality and so worthy three omissions
material they have changed something, And the only people that
are going to matter there are the immigration judge and
then the Board of Immigration Appeals, which is the administrative appeal,
and then maybe a Court of Appeals if it's ruled
(23:13):
that this is something that the courts have jurisdiction to review.
Speaker 6 (23:17):
But that's it.
Speaker 1 (23:17):
That's the only people. So this whole other issue of
the importance Marco Rubio determination and that statute and everything
else may end up getting shunted to the side, and
the real issue that he ends up getting removed for
may end up just being this application issue.
Speaker 2 (23:33):
In your experience, do people often get removed for lying
on their green card application.
Speaker 1 (23:40):
It's usually a proxy for something more serious, just like
it is here, which is they wouldn't say to you
four years after your green card application, Hey, you forgot
to mention that you were in the Elks Club from
November to January of twenty twelve. They're not going to
depart you for that, even though yes, if you were
a member of the l club, you have to mention it.
(24:02):
But they're not going to support you for that. But
usually what they're concerned about is if they have some
reason that they want to deport you, and they can
show look, this actually would have had a material impact
on your application, But they can't support you for any
other reason because you haven't.
Speaker 6 (24:19):
Actually been convicted of a crime.
Speaker 1 (24:22):
This would be a reason that they have used in
the past and could use in the future against people.
Speaker 2 (24:27):
That seems like what might be happening here. Leon, thanks
so much for once again taking us through the maze
that is immigration law. That's Leon Fresco of Honda Night
Coming up. Trump gets a reprieve from a court order
blocking his tariffs. I'm June Grosso and you're listening to Bloomberg.
As President Donald Trump's trade war plays out in the headlines,
(24:50):
a legal battle is playing out in the courts over
his use of emergency powers to impose tariffs. Trump announced
the reciprocal tariffs on imports for from almost sixty countries
on April second.
Speaker 3 (25:03):
In short, chronic trade deficits are no longer merely an
economic problem. They're a national emergency that threatens our security
and our very way of life. It's a very great
threat to our country, and for these reasons, starting tomorrow,
the United States will implement reciprocal tariffs on other nations.
Speaker 2 (25:22):
Trump cited trade deficits with other countries and drug trafficking
at the border as national emergencies that allowed him to
invoke the International Emergency Economic Powers Act or IEPA to
impose tariffs by executive order. At least six lawsuits have
been filed challenging this first time use of AIPA to
(25:43):
impose tariffs, and the US Court of International Trade ruled
unanimously on May twenty eighth that Trump had exceeded his
authority and ordered the tariffs blocked. But this week the
US Court of Appeals for the Federal Circuit gave Trump
a reprieve, deciding that the tear tariffs can remain in
place until it designs the case. My guest is Jimmy Garula,
(26:05):
a professor at Notre Dame Law School. He's a former
federal prosecutor and was the under Secretary for Enforcement at
the Department of the Treasury during the George W. Bush administration. Jimmy,
why did the US Trade Court rule that AIPA doesn't
give Trump the authority to impose these tariffs.
Speaker 5 (26:24):
Well, first, it's important to understand that there are really
two types of tariffs that are implicated in the US
Court of International Trades decision. So first, there are the
AIPA Fetanyl migration tariffs, and these pertain specifically to China, Mexico,
and Canada. And here President Trump has declared that there
(26:47):
is a national emergency, it's an unusual and extraordinary threat
to the national security, economy, and foreign policy of the
United States. And therefore his response after making that emergency
declaration is to impose tariffs against these three countries. The
second group of tariffs, or the worldwide retaliatory tariffs, And
(27:12):
there the unusual and extraordinary threat. You know, the national
emergency involves trade deficits, and this is much broader. It's
not limited to these three countries, you know, China, Mexico,
and Canada, but it extends to all of the US
trading partners. And the claim is that, oh, we've got
this trade deficit, this is an unusual and extraordinary threat.
It threatens the economy of the United States, and therefore
(27:35):
the response is the imposition of tariffs, you know, worldwide.
And so the Court of International Trade you know, struck
down both sets of tariffs. With respect to the fetanyl
migration tariffs, the court found that there wasn't a sufficient
nexus between the so called national emergency, the importation the
(27:58):
abuse of fetanyl, and tariffs. There just wasn't a sufficient nexus. Like,
if the emergency is drug trafficking, drug importation, then what's
the relationship between that and tariffs, And the court just
said there isn't a sufficient nexus between the two. And
IEPA just doesn't justify the use of tariffs in this way.
(28:19):
So again it's a statutory construction issue involving the interpretation
of the International Emergency Economic Powers Act With respect to
the second, the Worldwide retaliation tariffs have said that the
language an IEPA, which it authorizes a president to regulate
importation through economic stinctions the courses, does not confer unlimited
(28:40):
tariff authority on the president and therefore struck down that
set of tariffs as well.
Speaker 2 (28:46):
So the appellate court is allowing Trump to keep the
tariffs in effect while it plans to hold arguments July thirty. First,
did it offer a reason for siding with the administration
at this It didn't.
Speaker 5 (29:01):
In fact, if you look at the order, it's very short.
I think it's four pages, and so it's very conclusiony
in nature and doesn't really spell out the reasons why
it is basically blocking the nationwide permanent injunction on the tariffs,
but just said that it was warranted in this case.
One could reasonably speculate that the Pellet Court is just
(29:22):
concerned about the impact and the implications of the lower
court decision. I mean, if the tariffs are illegal and
therefore should be block pursuant to this permanent restraining order,
then it's going to just, you know, turn on its head.
You know, the Trump administration's policy, economic policy with respect
to foreign affairs, commercial trade, worldwide, And so I think
(29:46):
before the Court is willing to authorize this or permit
action that has such far reaching impact that it wants
to give the parties ample opportunity to fully brief and
litigate the issue, use for the Appellate Court to consider.
Speaker 2 (30:02):
Those challenging the tariffs they seek an emergency appeal to
the Supreme Court. Has the Supreme Court ruled on IEPA before.
Speaker 5 (30:12):
Yes, there have been some Supreme Court decisions interpreting, you know,
the scope of AEPA. But this specific issue of whether
IEPA authorizes the president to use tariffs as an economic
sanction in response to the national emergency, that's an issue
of first impression, and the reason being to that this
(30:34):
is the first time, you know, the use of tariffs
under IEPA by President Trump is the first time in
the history of AEPA, which was enacted by Congress in
nineteen seventy seven. It's the first time any president has
used IEPA to authorize the imposition of tariffs against any country,
let alone every trading partner of the United States. So
(30:54):
it's an issue of first impression.
Speaker 2 (30:56):
You were under Secretary for Enforcement at the Department of
the Treasury dealing with AIPA. I mean, what was APA
used for.
Speaker 5 (31:03):
It was used in a dramatically different situation than it's
being used today by the Trump administration. When I was
under secretary, President George W. Bush declared an emergency with
respect to foreign terrorist organizations and specifically al Qaeda that
was responsible for the nine to eleven terror attacks, and
that was the national emergency, the threatened national security, and
(31:26):
AEPA was used to block transactions between individuals that were
supporting al Qaeda directly or indirectly providing support to al Kaeda.
So it blocked transactions and it authorized the freezing of
any assets in the United States that were linked to
al Qaeda or its supporters or sympathizers. There was never
(31:46):
any attempt to impose economic sanctions against any country that, say,
was providing some assistance or support to al Qaeda. So
it was a very very different context and situation, and
tariffs never even came up as a thought for of
AEPA in that situation.
Speaker 2 (32:05):
If he's allowed to use ayep in this way, how
much does that broaden his authority.
Speaker 5 (32:12):
Well, that's a concern, and that was one of the
issues and points raised in the decision by the US
Court of International Trade that this would provide the president
just expansive authority to impose economic sanctions on countries. And further,
the court argue that, wait a second, there are statutes,
(32:33):
federal statutes that Congress has enacted that authorize the president
under very limited and focused circumstances to impose terrors on countries.
And so to give the president this type of sweeping
authority to use tariffs uner ap in this way would
render those statutes the NOTTI. I mean, it would really
(32:54):
undermine the purpose of those states. Why do we need
those statutes? They would become redundant and unnecessary. And so
there seems to be an inherent conflict between the president's
use of AIPA in this broadway that again would undermine
these existing statues that Congress has enacted for the specific
purpose of the president imposing tariffs and unique specific situations.
Speaker 2 (33:18):
Yeah, and administration officials have you know, publicly downplayed the
impact of the Trade Court's decision, saying that most of
the tariffs can be imposed by other means. So then
why didn't they impose them by other means? Is it
because this is.
Speaker 5 (33:32):
Quicker, Yeah, it's easier, it's easier. So to use AEPA
in this way, it provides the president much broader sweeping
authority with respect to the imposition of tariffs. These other
federal statutes are more nuanced, they're more focused, and they
are more restrictive in terms of, you know, when these
tariffs can be imposed and with respect to what types
(33:55):
of commercial transactions. And so I think that the Trump
administrayation has attempted to avoid, you know, the more nuanced, restrictive,
kind of more difficult method or authorization for imposing tariffs
under those statutes and said, why do we want to
go there. We've got AEPA. Let's just use AEPA and IEPA.
You know, we don't have to be concerned about, you know,
(34:17):
the narrow focus on specific commercial transactions, and we can
just impose these tariffs across the board with respect to
every country that were engaged in regulatory trade.
Speaker 2 (34:27):
Do you think that the Appellate Court, after it hears
oral arguments, will affirm the US Court of International Trades
decision to block the tariffs.
Speaker 5 (34:37):
I think there are some very compelling reasons for striking
down the tariffs under AEPA. And I think again it
comes down to a very kind of basic fundamental statutory
construction question, you know, does IEPA authorize these types of
economic sanctions tariffs? And then at the same time, well,
we've got these other federal statutes, so it's not as
(34:59):
if that A already is going to be removed from
the president altogether. He just has to do it the
right way. So that would be an argument in favor
of banning the tariffs under a EPA. You could still
do it Trump administration. You just have to do it
the right way through these other statutes that Congresses enacted
that deal specifically with tariffs, rather than AIPA, which says
(35:21):
nothing in the statutory text whatsoever about tariffs. The word
tariff is never mentioned once in i EPA, And so
I think it's a way in which there could be
kind of a compromise. You know, you can't use AIPA
for these purposes, but we're not saying that tariffs are illegal.
But you just have to do it the right way
through the use of these other federal statutes.
Speaker 2 (35:40):
Is it time for Congress to get involved here?
Speaker 5 (35:43):
Well, they could, you know, they could, of course. You know,
we're living in a world now where there's a very
divided Congress, and the Republican majority at the House is
razor thin, and so there's no guarantee that if Congress
decided to enact legislation to permit President Trump to do
(36:05):
what he's doing now under AEPA, that that would be enacted,
that you know, such a legislation would pass through the
House of Representatives with this very small minority that the
majority Republicans have at this time.
Speaker 2 (36:18):
Does this legal fight over AEPA fit into the wave
of lawsuits over Trump executive orders that test the limits
of presidential authority.
Speaker 5 (36:29):
We're seeing it time and time again. It's just the
president pushing the boundaries of executive authority, you know, beyond
reasonable limits. He wants to accumulate as much power in
the executive branch as possible, and he's looking for every
opportunity to do so. And so he's taking you know, statutes, regulations,
whatever it might be, and he's interpreting them in the broadest,
(36:52):
you know, kind of most unreasonable way to afford him
that authority and power. And really it's up to the
courts to provide that check on balance on that authority
because clearly, you know, Congress has abdicated its responsibilities and
is doing little or nothing on these issues.
Speaker 2 (37:08):
Thanks so much for joining me, Jimmy and sharing your insights.
That's Professor Jimmy Garoule of Notre Dame Law.
Speaker 8 (37:14):
School, 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.
(37:35):
I'm June Grosso and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:13):
There were demonstrations in more than a dozen major cities
across the country this week over the Trump administration's immigration crackdown,
as ICE conducts high profile workplace raids. In response to
the protests in Los Angeles, President Trump deployed thousands of
Guard troops and hundreds of active duty Marines to the
(00:34):
city without the request of the state's governor.
Speaker 3 (00:38):
If we weren't there, if we didn't bring in the
National and the Marines, and you would probably have a
city that was burning.
Speaker 2 (00:45):
To the ground, just like it was a number of
months ago.
Speaker 3 (00:48):
With the housing.
Speaker 2 (00:50):
But California took Trump to court, saying his choice to
deploy the National Guard to police civilian communities is an expansive, dangerous,
concesent option of federal executive power, and on Thursday, federal
Judge Charles Pryor found that Trump's actions were illegal and
that the LA protests fell far short of the legal
(01:11):
requirements of a rebellion needed to justify a federal deployment.
He ordered Trump to return command of the guardsman to
California Governor Gavin Newsom.
Speaker 4 (01:22):
He must work under the constraints as a constitutional officer
of the Constitution of the United States of America. That's
what this court order demands of the President of the
United States. He is not a monarch, he is not
a king, and he should stop acting like one.
Speaker 2 (01:40):
But just a few hours later, a federal appeals court
temporarily blocked the judge's order, saying it will hold a
hearing on the matter on Tuesday. Joining me is immigration
law expert Leon Fresco, a partner at Holland and Knight
and the former head of the Office of Immigration Litigation
in the Obama administration.
Speaker 5 (01:59):
Leon J.
Speaker 2 (02:00):
Judch Charles Bryer, who by the way, is Justice Stephen
Bryer's brother, wrote this scathing opinion, finding that the president
acted illegally in deploying the troops, exceeding both his statutory
authority and violating the Tenth Amendment. Tell us how he
came to that conclusion.
Speaker 1 (02:19):
So there's a couple of things. The first was that
President Trump said that he had authority under ten USC.
Section twelve four h six, which provides that the president
can call federal service members and units of the National
Guard of any state when the United States is either
invaded or is in danger of invasion, or there's a
(02:41):
rebellion or a danger of rebellion, or most notably, that
the president is unable with the regular forces to execute
the laws of the United States. And so that was
the real argument that was being made there, And what
Judge Briar really tried to get a grip on and
try to figure out was, there's two questions here. One,
(03:05):
did you violate that statue because there really wasn't any
type of rebellion or an inability to enforce the law.
But second, is there some inherent authority that the president
has that makes these kinds of questions unreviewable? Because even
if this was a dispute about the rebellion or not,
(03:26):
the Trump administration was saying, this is our decision, this
is committed to our discretion. It's not for the courts
to review this. And so this is where Bryer said
two different points. One, on the statue, there was no
consultation with the governor, which is required under the statue.
Congress wrote that there has to be meaningful consultation with
(03:47):
the governor before taking over the state's national guard. And secondly,
there wasn't this rebellion or invasion or inability.
Speaker 6 (03:57):
To enforce the law.
Speaker 1 (03:59):
So nothing justified the federalization.
Speaker 6 (04:02):
Of the National Guards. And this is the kind of.
Speaker 1 (04:05):
Determination that can be reviewed. And if you can't review
this determination, then there is no check of any kind
on the President being able to deploy the National Guard
for any purpose, at any time, for any reason. And
that's what really was animating a lot of his concerns
in the ruling during the oral arguments, and I think
(04:29):
that's going to be really the main question that is
grappled with both by the Ninth Circuit and by the
Supreme Court ultimately, this question of is this really unreviewable?
And if it's unreviewable, what does that mean moving forward
for giving the president authority to mobilize federal troops whatever
the presidencyes fits.
Speaker 2 (04:50):
So we've talked before about the court's deferring to the
president's decisions on foreign policy and national security, but Judge
Bryant said this case involved domestic use of military force,
on which the courts can certainly weigh in. Is that
the line that he found.
Speaker 1 (05:09):
To correct the limiting principle that at the end of
the day led the judge to believe this is reviewable
is the fact that if this was something that in
some way implicated foreign policy or the use of the
military to deter an actual foreign invasion happening, that might
(05:30):
be something where the courts have no role. But here
the fact that the fact pattern was in all four corners.
Speaker 6 (05:40):
Limited to a domestic dispute.
Speaker 1 (05:43):
That led the judge to say, in this instance, where
you have a federal military action in a domestic dispute,
the courts have to have an ability to analyze this
and to be able to have some constraints on presidential authority. Otherwise,
if it were to be committed to a discretion of
(06:06):
the president, would mean that the president could just employ
these federal troops at any time for any purpose, and
he viewed that as unacceptable under the Constitution. Now, I
think the Trump administration would make some arguments, which they've
done in is that the influx of foreign nationals.
Speaker 6 (06:22):
Is itself an invasion.
Speaker 1 (06:24):
But the courts, other than one judge in one of
the cases in Pennsylvania, the courts so far have not
actually characterized the influx of foreign nationals during the Biden
administration that as an actual invasion in the sense that
the folks that entered are there to overthrow the government
of the United States.
Speaker 2 (06:43):
Just within hours of Briar's decision, the Trump administration went
to the Ninth Circuit and a panel of judges consisting
of two Trump appointees and one Biden appointee. But Judge
Briar's decision on hold and they're going to have a
hearing on Tuesday. How do you think the Ninth Circuit
did that when Judge Bryer had found irreparable harm to
(07:05):
the city and that the presence of troops in LA
was itself inflaming tensions with protesters.
Speaker 1 (07:13):
Well, there was an administray to stay put until Friday
for the district Court, and so all that was really
done by the Ninth Circuit. And this was a unanimous
decision to the extent that it's a one page decision.
But nevertheless, there wasn't a dissent from this administrative stay.
Is they just basically held this in obeyance to have
(07:35):
a hearing on Tuesday and then they might make a
decision shortly thereafter. But I do think there is probably
some view of the events going on in the world
right now and some desired to maybe keep the status
quo for the weekend.
Speaker 6 (07:51):
Just in case, with all.
Speaker 1 (07:53):
The conflagrations going on everywhere, it might not necessarily be
a good thing to be having civil unrest in Los Angeles.
So I think there might be some prudential consideration there
in keeping the stay over the weekends. But you know,
hard to read minds, but I think that probably is
underlying some of this.
Speaker 2 (08:13):
There are concerns that President Trump might send troops to
other cities because his June seventh Proclamation is broad and
allows troops to be sent anywhere protests are likely to occur.
Will Judge Bryar's order, if upheld on appeal, have any impact.
Speaker 1 (08:33):
So the order itself certainly provides a president for other
states and other cities to actually look at this order
and say two things. One that there is court jurisdiction
in order to review this. And I think that's going
to be the key argument to the extent that that
gets to the Supreme Court is forget about interpreting the statues.
(08:55):
Is there actually jurisdiction to interpret the statues? And then
once you start getting to interpreting the statue, then the
administration is in a bit of a more difficult pickle here,
because then you have to decide is there a rebellion,
is there an invasion?
Speaker 6 (09:11):
Is there an inability to enforce the law?
Speaker 1 (09:14):
And there at the moment, the factual record on that
is not as full sum for the administration as they
might want going into court, and so they would definitely
need more than what happened in Los Angeles to be
able to deploy the National Guard in the military, especially
to enforce ice operations. But they might not need anything
(09:36):
at all if the Supreme Court ends up saying that
this isn't something that's reviewable. But I think every court's
going to have the same struggle that just Briar ed,
which is it makes sense in one sense to defer
to the administration because these are very serious questions, These
are very difficult issues.
Speaker 6 (09:54):
But if you have complete.
Speaker 1 (09:56):
Deference, what is to stop a very arbitraryan a precious
application of this for pretty much any reason.
Speaker 6 (10:03):
And so that's where this gets complicated.
Speaker 2 (10:06):
The last time a president activated a state's National Guard
without a request from the governor was in nineteen sixty five,
when President Lyndon Johnson used the Guard to protect civil
rights demonstrators in Alabama after the governor refused to do so.
Some are pointing to that as precedent for Trump's actions here.
Speaker 1 (10:28):
Well, I think the problem is there you would say
the same thing, which was there was an inability to
enforce the federal law. The states did not want to
enforce the federal law, and so you needed to actually
have the National Guard there to enforce the federal law.
Here there is an assertion that the states are not
enforcing the federal law. But the problem is, in these
(10:49):
immigration contexts, the states don't enforce the federal law. They're
not supposed to round people up and deport them, so
that's just for the federal government to do. Now, if
the state police was actually blocking the ability to find
people for deportation, I think the President would be in
(11:10):
a much stronger ground here, But they would need that
sort of evidence to be presenting the court in this context,
which is here we are just trying to have ice
agents enforce the law, and we're encountering actual resistance from
state and local officials to our ability to do this,
as opposed to verbal you know, hey, go do this,
(11:31):
which is you know most of what you see. If
there was actual impeditent and roadblock, then I do think
this argument would be a much stronger of the administration's part.
Speaker 2 (11:41):
Stay with me. Leon. Coming up next, I'll continue this
conversation with Leon Fresco. We'll discuss why Senator Alex Paedilla
of California was forcibly removed from the Homeland Security Secretary's
press conference and handcuffed. I'm June Grosso and you're listening
to Bloomberg. This week, President Trump ordered the deployment of
(12:02):
about four thousand National Guard troops and seven hundred marines
to Los Angeles following protests that have been concentrated in
a few blocks downtown over his stepped up enforcement of
immigration laws. And on Thursday, as lawyers for the state
and the federal government were arguing in La federal court
(12:23):
about whether the President had overstepped his authority by deploying
the National Guard without the governor's request, in the Federal Building,
the senior US Senator from California, Alex Paedia, was forcibly
removed from the press conference of Homeland Security Secretary Christy
Nome as he interrupted her to try to ask a question.
Speaker 1 (12:44):
I have a question.
Speaker 7 (12:45):
The secretary.
Speaker 2 (12:48):
Of the senator was pushed from the room by FBI
agents and Secret Service, who then forced him to the
ground in the hallway outside and handcuffed him.
Speaker 7 (12:59):
If this is how the Department of homett Security responds
to a senator with a question, you can only imagine
what they're doing to farm workers, to cuts to day labors.
Speaker 2 (13:15):
I've been talking to immigration law expert Leon Fresco, a
partner at Hollanda Knight. Leon, let's put this incident with
Senator Padilla in context. In the last two months, there
have been arrests of a Wisconsin judge, a New Jersey congresswoman,
and a California union leader, all with regard to immigration
(13:36):
issues and the borders are. Tom Holman has even threatened
to arrest the governor of California for obstructing immigration enforcement,
and the President said that would be great. And now
we have this handcuffing of a US senator. Is this
an attempt to try to intimidate officials, to warn them
about interfering with the ICE crackdown?
Speaker 1 (13:58):
Well, I think there's a bunch of points that all
have to be separated factually and contextually. There is, on
one side of the spectrum a scenario whereby ICE is
in the middle of an operation and there's some official
who does something that makes it so that that operation
is not successful. So if you had the judge who
(14:18):
escorts the person that ICE is looking for outside of
a different door so that ICE can't find them, you
can say that that's harboring or concealing, because that statute
is very broad and pretty much any assistance.
Speaker 6 (14:32):
Like that that you give to someone who you.
Speaker 1 (14:34):
Know is in the country illegally, you are violating the statue.
So that's one scenario. Then you have the other scenario.
The two things that have happened, one with the congresswoman
from New Jersey in the detention facility and now Senator Pania.
These are very complicated because we don't have anybody with
(14:55):
clean hands in the sense of you have in the
video Senator Pania coming into this press conference. You have
Secretary Nomes speaking and he's speaking over her, and he's
walking toward her direction, and it's speaking over her. It's
not like he waits till there's a pause to ask
a question. He's verbally interrupting her press conference. But then
(15:17):
you had that dealt with in a manner where it's
not just that he's taken out of the room and
the door is closed. Let's say, but he's taken out
of the room, he's put to the floor, and he's handcuffed,
and so there's the argument there about excessive force and
whether any of that was necessary, and those are going
to be complicated issues. I don't think much is going
to happen. I don't think the federal government's going to
(15:40):
prosecute any of the agents involved. I don't know what's
going to happen with regard to these escalations moving forward.
Ideally we would come toward some sort of pass forward
in this country where there's consensus on immigration.
Speaker 2 (15:56):
Enforcement is part of this, the pressure on ice age
and to increase the rest to something like three thousand
a day, up from roughly six hundred and sixty a day.
Speaker 1 (16:06):
You know, we're in months six now of this administration.
I think in months one, two, and three, where there
was this discussion about really focusing on criminal backgrounds first,
that was happening, and yes there might be some people
who were protesting, but those people were really on the
fringes because it's really hard to argue against supporting people
(16:28):
with criminal convictions. But I do think there needs to
be some discussion about this, and I even think the president,
to his credit, actually said that when he said in
a press conference this week that he was concerned that
enforcement might be affecting the farms and the hospitality industry,
and so there might be some opportunity here to provide
(16:50):
some guidance. And what I've heard from people in the
sphere who are more reasonable is, look, people with criminal
backgrounds and people who came in the last four years
during the period where there was this open border policy
of people coming through the border at hundreds of thousands
a month, that should be the focus. And then if
(17:12):
you're sort of here before twenty twenty, maybe you wouldn't
be a focus of the immigration enforcement. Something like that
I think would blower the tensions here while still giving
plenty of work that can occupy this administration for the
rest of the four years.
Speaker 5 (17:29):
Yeah.
Speaker 2 (17:29):
On Thursday, Trump did seem to be softening his stance
on undocumented farm workers and hospitality workers.
Speaker 3 (17:38):
Our farmers are being hurt badly by you know, they
have very good workers. They've worked for him for twenty years.
They're not citizens, but they've turned out to be, you know, great,
and we're gonna have to do something about that.
Speaker 2 (17:51):
I mean, is there a way to carve out certain
migrants who work on farms or in the hospitality industry.
Speaker 1 (17:57):
That might be unseemly to right at exactly like that.
But there have been prosecutorial discretion memos both under the
Obama administration and the Biden administration. And in fact, there's
a Supreme Court case where the State of Texas challenge
the Biden administration prosecutorial discretion memo, and the Supreme Court
said that none of your business, State of Texas, the
(18:19):
Biden administration can have a prosecutorial discretion memo. So to
the extent that President Trump wants the AHS to have
such a prosecutorial discretion memo, yes, it could say we're
going to not focus on the farms and the hospitality industry.
But I think probably what would be well advised is
(18:40):
rather than just those very narrow carve outs, I think
it's about a larger sort of way.
Speaker 6 (18:47):
To diffuse tensions.
Speaker 1 (18:48):
And I think that that would probably be a memo
that said, yes, you can stick industries that you're concerned about.
But I think again, there's plenty of people for ICE
to put through.
Speaker 6 (18:59):
The product says, if you.
Speaker 1 (19:00):
Are limiting it to criminal non citizens and also people
who've arrived during the Biden administration. Let's say that's still
millions of people. You will not get to all of
those people, if that's what you focus on, and you
don't have to say, well, we won't one hundred percent
go after other people, but you can say those folks
will be deprioritized and will not be the subjects of
(19:23):
any affirmative operations. And I think that would do a
lot toward diffusing a lot of this tension, but still giving,
Like I said, plenty of work for the Trump administration
to do with regard to removal lean.
Speaker 2 (19:37):
I want to talk for a moment about the case
of Mahmoud Khalil, who was a leader in the pro
Palestinian protests at Columbia and the first person arrested in
the Trump crackdown on student activism.
Speaker 1 (19:51):
There are two grounds for trying to deport him. The
most important ground, the court said, is this statute, which
says that if the Secretary of State finds them that
your conduct would be detrimental to the United States foreign policy,
they can order your deportation. And what the court found
was that this provision is constitutionally void because it's too vague.
(20:12):
The vagueness doctor means that when you pass the law,
nobody knows how to implement the law in a way
where they.
Speaker 6 (20:19):
Can follow it.
Speaker 1 (20:19):
So suppose the Congress passed the law that said you
can't be out too late at night, what would that mean?
You would know what too late at night meant. Would
it mean eight pm, would it mean nine pm? Would
it mean ten pm? And so that would be void
for vagueness, so one would know. And it's the same
concept here. How do you know what speech you can
make that's going to make you subject to a policy
(20:43):
that says that you can be deported for violating the
foreign policy interests of the United States, And so unless
there's clearer guidance, given that's a too vague statute.
Speaker 6 (20:55):
Now, the problem is.
Speaker 1 (20:56):
There's two other big arguments that the government has. They're
saying that they're also trying to deport him because he
lied on his green card application, because he didn't disclose
that he had worked for the Syria Office and the
British Embassy in Bay Route. Also that he didn't disclose
that he worked at the United Nations Relief and Works
Agency for the Palestinian refugees. And he also didn't disclose
(21:18):
he was a member of the Columbia University Apartheid the
Best Group, and so all of these things would have
been informative in his green card application, and the fact
that he didn't disclose those leads him to also be
deportable on that and so that's one argument. And the second
argument is whether this habeas petition that was filed by
mister Khalil is actually the right for him to make
(21:39):
any of these arguments or whether he can only make
it in the removal process so that it would be
at the end if he's ordered to deport it, only
then could he make his argument. That's also very strong
argument that the government has, and so we're going to
have to see both of those before we see if
mister Khalil ultimately gets freed from dessension.
Speaker 2 (22:00):
The New Jersey judge had ruled that the government couldn't
continue to hold him on that first ground, the foreign
policy ground, but on Friday, the government's submitted papers saying
that it could continue to hold him on the second
ground that he'd lied on his green card application. So
the judge refused to order his release, saying he hadn't
(22:20):
presented enough evidence that detention on those grounds was unlawful.
Is lying on your green card application enough to get
you deported?
Speaker 1 (22:30):
I mean the can because given that he's not a citizen,
he doesn't have to be denaturalized, which is a very
long process that involves a federal court trial. That doesn't
need to happen, so well, the only thing that needs
to happen is he would need to be placed into
removal proceedings. And then when he's placed into removal proceedings,
the only thing that needs to happen there is that
an immigration judge needs to agree that he lied on
(22:52):
his green card application, and that basically that's going to
be an issue of materiality and so worthy three omissions
material they have changed something, And the only people that
are going to matter there are the immigration judge and
then the Board of Immigration Appeals, which is the administrative appeal,
and then maybe a Court of Appeals if it's ruled
(23:13):
that this is something that the courts have jurisdiction to review.
Speaker 6 (23:17):
But that's it.
Speaker 1 (23:17):
That's the only people. So this whole other issue of
the importance Marco Rubio determination and that statute and everything
else may end up getting shunted to the side, and
the real issue that he ends up getting removed for
may end up just being this application issue.
Speaker 2 (23:33):
In your experience, do people often get removed for lying
on their green card application.
Speaker 1 (23:40):
It's usually a proxy for something more serious, just like
it is here, which is they wouldn't say to you
four years after your green card application, Hey, you forgot
to mention that you were in the Elks Club from
November to January of twenty twelve. They're not going to
depart you for that, even though yes, if you were
a member of the l club, you have to mention it.
(24:02):
But they're not going to support you for that. But
usually what they're concerned about is if they have some
reason that they want to deport you, and they can
show look, this actually would have had a material impact
on your application, But they can't support you for any
other reason because you haven't.
Speaker 6 (24:19):
Actually been convicted of a crime.
Speaker 1 (24:22):
This would be a reason that they have used in
the past and could use in the future against people.
Speaker 2 (24:27):
That seems like what might be happening here. Leon, thanks
so much for once again taking us through the maze
that is immigration law. That's Leon Fresco of Honda Night
Coming up. Trump gets a reprieve from a court order
blocking his tariffs. I'm June Grosso and you're listening to Bloomberg.
As President Donald Trump's trade war plays out in the headlines,
(24:50):
a legal battle is playing out in the courts over
his use of emergency powers to impose tariffs. Trump announced
the reciprocal tariffs on imports for from almost sixty countries
on April second.
Speaker 3 (25:03):
In short, chronic trade deficits are no longer merely an
economic problem. They're a national emergency that threatens our security
and our very way of life. It's a very great
threat to our country, and for these reasons, starting tomorrow,
the United States will implement reciprocal tariffs on other nations.
Speaker 2 (25:22):
Trump cited trade deficits with other countries and drug trafficking
at the border as national emergencies that allowed him to
invoke the International Emergency Economic Powers Act or IEPA to
impose tariffs by executive order. At least six lawsuits have
been filed challenging this first time use of AIPA to
(25:43):
impose tariffs, and the US Court of International Trade ruled
unanimously on May twenty eighth that Trump had exceeded his
authority and ordered the tariffs blocked. But this week the
US Court of Appeals for the Federal Circuit gave Trump
a reprieve, deciding that the tear tariffs can remain in
place until it designs the case. My guest is Jimmy Garula,
(26:05):
a professor at Notre Dame Law School. He's a former
federal prosecutor and was the under Secretary for Enforcement at
the Department of the Treasury during the George W. Bush administration. Jimmy,
why did the US Trade Court rule that AIPA doesn't
give Trump the authority to impose these tariffs.
Speaker 5 (26:24):
Well, first, it's important to understand that there are really
two types of tariffs that are implicated in the US
Court of International Trades decision. So first, there are the
AIPA Fetanyl migration tariffs, and these pertain specifically to China, Mexico,
and Canada. And here President Trump has declared that there
(26:47):
is a national emergency, it's an unusual and extraordinary threat
to the national security, economy, and foreign policy of the
United States. And therefore his response after making that emergency
declaration is to impose tariffs against these three countries. The
second group of tariffs, or the worldwide retaliatory tariffs, And
(27:12):
there the unusual and extraordinary threat. You know, the national
emergency involves trade deficits, and this is much broader. It's
not limited to these three countries, you know, China, Mexico,
and Canada, but it extends to all of the US
trading partners. And the claim is that, oh, we've got
this trade deficit, this is an unusual and extraordinary threat.
It threatens the economy of the United States, and therefore
(27:35):
the response is the imposition of tariffs, you know, worldwide.
And so the Court of International Trade you know, struck
down both sets of tariffs. With respect to the fetanyl
migration tariffs, the court found that there wasn't a sufficient
nexus between the so called national emergency, the importation the
(27:58):
abuse of fetanyl, and tariffs. There just wasn't a sufficient nexus. Like,
if the emergency is drug trafficking, drug importation, then what's
the relationship between that and tariffs, And the court just
said there isn't a sufficient nexus between the two. And
IEPA just doesn't justify the use of tariffs in this way.
(28:19):
So again it's a statutory construction issue involving the interpretation
of the International Emergency Economic Powers Act With respect to
the second, the Worldwide retaliation tariffs have said that the
language an IEPA, which it authorizes a president to regulate
importation through economic stinctions the courses, does not confer unlimited
(28:40):
tariff authority on the president and therefore struck down that
set of tariffs as well.
Speaker 2 (28:46):
So the appellate court is allowing Trump to keep the
tariffs in effect while it plans to hold arguments July thirty. First,
did it offer a reason for siding with the administration
at this It didn't.
Speaker 5 (29:01):
In fact, if you look at the order, it's very short.
I think it's four pages, and so it's very conclusiony
in nature and doesn't really spell out the reasons why
it is basically blocking the nationwide permanent injunction on the tariffs,
but just said that it was warranted in this case.
One could reasonably speculate that the Pellet Court is just
(29:22):
concerned about the impact and the implications of the lower
court decision. I mean, if the tariffs are illegal and
therefore should be block pursuant to this permanent restraining order,
then it's going to just, you know, turn on its head.
You know, the Trump administration's policy, economic policy with respect
to foreign affairs, commercial trade, worldwide, And so I think
(29:46):
before the Court is willing to authorize this or permit
action that has such far reaching impact that it wants
to give the parties ample opportunity to fully brief and
litigate the issue, use for the Appellate Court to consider.
Speaker 2 (30:02):
Those challenging the tariffs they seek an emergency appeal to
the Supreme Court. Has the Supreme Court ruled on IEPA before.
Speaker 5 (30:12):
Yes, there have been some Supreme Court decisions interpreting, you know,
the scope of AEPA. But this specific issue of whether
IEPA authorizes the president to use tariffs as an economic
sanction in response to the national emergency, that's an issue
of first impression, and the reason being to that this
(30:34):
is the first time, you know, the use of tariffs
under IEPA by President Trump is the first time in
the history of AEPA, which was enacted by Congress in
nineteen seventy seven. It's the first time any president has
used IEPA to authorize the imposition of tariffs against any country,
let alone every trading partner of the United States. So
(30:54):
it's an issue of first impression.
Speaker 2 (30:56):
You were under Secretary for Enforcement at the Department of
the Treasury dealing with AIPA. I mean, what was APA
used for.
Speaker 5 (31:03):
It was used in a dramatically different situation than it's
being used today by the Trump administration. When I was
under secretary, President George W. Bush declared an emergency with
respect to foreign terrorist organizations and specifically al Qaeda that
was responsible for the nine to eleven terror attacks, and
that was the national emergency, the threatened national security, and
(31:26):
AEPA was used to block transactions between individuals that were
supporting al Qaeda directly or indirectly providing support to al Kaeda.
So it blocked transactions and it authorized the freezing of
any assets in the United States that were linked to
al Qaeda or its supporters or sympathizers. There was never
(31:46):
any attempt to impose economic sanctions against any country that, say,
was providing some assistance or support to al Qaeda. So
it was a very very different context and situation, and
tariffs never even came up as a thought for of
AEPA in that situation.
Speaker 2 (32:05):
If he's allowed to use ayep in this way, how
much does that broaden his authority.
Speaker 5 (32:12):
Well, that's a concern, and that was one of the
issues and points raised in the decision by the US
Court of International Trade that this would provide the president
just expansive authority to impose economic sanctions on countries. And further,
the court argue that, wait a second, there are statutes,
(32:33):
federal statutes that Congress has enacted that authorize the president
under very limited and focused circumstances to impose terrors on countries.
And so to give the president this type of sweeping
authority to use tariffs uner ap in this way would
render those statutes the NOTTI. I mean, it would really
(32:54):
undermine the purpose of those states. Why do we need
those statutes? They would become redundant and unnecessary. And so
there seems to be an inherent conflict between the president's
use of AIPA in this broadway that again would undermine
these existing statues that Congress has enacted for the specific
purpose of the president imposing tariffs and unique specific situations.
Speaker 2 (33:18):
Yeah, and administration officials have you know, publicly downplayed the
impact of the Trade Court's decision, saying that most of
the tariffs can be imposed by other means. So then
why didn't they impose them by other means? Is it
because this is.
Speaker 5 (33:32):
Quicker, Yeah, it's easier, it's easier. So to use AEPA
in this way, it provides the president much broader sweeping
authority with respect to the imposition of tariffs. These other
federal statutes are more nuanced, they're more focused, and they
are more restrictive in terms of, you know, when these
tariffs can be imposed and with respect to what types
(33:55):
of commercial transactions. And so I think that the Trump
administrayation has attempted to avoid, you know, the more nuanced, restrictive,
kind of more difficult method or authorization for imposing tariffs
under those statutes and said, why do we want to
go there. We've got AEPA. Let's just use AEPA and IEPA.
You know, we don't have to be concerned about, you know,
(34:17):
the narrow focus on specific commercial transactions, and we can
just impose these tariffs across the board with respect to
every country that were engaged in regulatory trade.
Speaker 2 (34:27):
Do you think that the Appellate Court, after it hears
oral arguments, will affirm the US Court of International Trades
decision to block the tariffs.
Speaker 5 (34:37):
I think there are some very compelling reasons for striking
down the tariffs under AEPA. And I think again it
comes down to a very kind of basic fundamental statutory
construction question, you know, does IEPA authorize these types of
economic sanctions tariffs? And then at the same time, well,
we've got these other federal statutes, so it's not as
(34:59):
if that A already is going to be removed from
the president altogether. He just has to do it the
right way. So that would be an argument in favor
of banning the tariffs under a EPA. You could still
do it Trump administration. You just have to do it
the right way through these other statutes that Congresses enacted
that deal specifically with tariffs, rather than AIPA, which says
(35:21):
nothing in the statutory text whatsoever about tariffs. The word
tariff is never mentioned once in i EPA, And so
I think it's a way in which there could be
kind of a compromise. You know, you can't use AIPA
for these purposes, but we're not saying that tariffs are illegal.
But you just have to do it the right way
through the use of these other federal statutes.
Speaker 2 (35:40):
Is it time for Congress to get involved here?
Speaker 5 (35:43):
Well, they could, you know, they could, of course. You know,
we're living in a world now where there's a very
divided Congress, and the Republican majority at the House is
razor thin, and so there's no guarantee that if Congress
decided to enact legislation to permit President Trump to do
(36:05):
what he's doing now under AEPA, that that would be enacted,
that you know, such a legislation would pass through the
House of Representatives with this very small minority that the
majority Republicans have at this time.
Speaker 2 (36:18):
Does this legal fight over AEPA fit into the wave
of lawsuits over Trump executive orders that test the limits
of presidential authority.
Speaker 5 (36:29):
We're seeing it time and time again. It's just the
president pushing the boundaries of executive authority, you know, beyond
reasonable limits. He wants to accumulate as much power in
the executive branch as possible, and he's looking for every
opportunity to do so. And so he's taking you know, statutes, regulations,
whatever it might be, and he's interpreting them in the broadest,
(36:52):
you know, kind of most unreasonable way to afford him
that authority and power. And really it's up to the
courts to provide that check on balance on that authority
because clearly, you know, Congress has abdicated its responsibilities and
is doing little or nothing on these issues.
Speaker 2 (37:08):
Thanks so much for joining me, Jimmy and sharing your insights.
That's Professor Jimmy Garoule of Notre Dame Law.
Speaker 8 (37:14):
School, 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.
(37:35):
I'm June Grosso and you're listening to Bloomberg
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