Weekend Law: DOE Dismantled, Afghan Reprieve & Mega Deals

June Grasso talks to the legal experts about the top stories of the week.

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Episode Transcript

Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.

Speaker 2 (00:09):
And it sounds strange, doesn't it.

Speaker 3 (00:10):
Department of Education. We're going to eliminate it, and everybody
knows it's right.

Speaker 4 (00:15):
In March, President Trump signed an executive order to dissolve
the Department of Education, which oversees billions of dollars in
funding for everything from student loans to special needs and
nutritional programs. Trump said that the essential services provided by
the department will be picked up by other agencies and

(00:36):
guess who else.

Speaker 3 (00:37):
All we have to do is get the students to
get guidance from the people that love them and cherish them,
including their parents, by the way, who will be totally
involved in their education along with the boards.

Speaker 4 (00:49):
Well. Twenty Democratic state attorneys general sued, arguing that the
administration's actions to dismantle the DOE are illegal and unconstitutional
because only Congress has the authority to eliminate the department.
Here's New Jersey Attorney General Matthew Platkin.

Speaker 5 (01:07):
They're hurting our kids to score cheap political points. And
I think for the eighty five percent of families in
this country that rely on public education, this is an
affront to all of us.

Speaker 4 (01:17):
A federal judge in Boston agreed and said that the
Trump purge would leave the department unable to perform duties
required by the law. He used a preliminary injunction in May,
blocking the administration from downsizing the department, But on Monday,
a divided Supreme Court lifted that judge's order and allowed

(01:37):
Trump to resume dismantling the DOE over a blistering dissent
by the court's three liberals joining me is constitutional law
expert David super, a professor at Georgetown Law. Trump can't
officially eliminate the Department of Education, or any department, but
can he effectively dismantle it?

Speaker 2 (01:59):
He has dumb with the Department of Education. I don't
think it's lawful. I don't even understand a plausible legal
theory why it might be lawful. But he has certainly
done that.

Speaker 4 (02:11):
Given the Court's previous rulings for Trump, especially last week's
ruling that allowed the administration to begin mass firings at
federal agencies, did this decision come as any surprise.

Speaker 2 (02:24):
This one did for several reasons. One is it came
without any explanation at all. What the Court's done in
prior cases upholding the administration is nitpick the challengers to death,
finding small, often semantic defect in what they've done. It's
truing jurisdiction extraordinarily strictly. But in this case, they simply

(02:48):
allowed the President to go forward with activities that seempatently
illegal without giving any explanation as to why it was acceptable.

Speaker 4 (02:57):
Are the Supreme Court's conservatives just ignoring the decisions of
the lower courts because here the Boston Federal judge said
the purge would lead the Department unable to perform duties
required under US law. Are the conservative just ignoring what
the district court judges find they seem to.

Speaker 2 (03:18):
Be which is inappropriate because on questions of fact, appellate
courts are supposed to be highly deferential to the lower courts.
That's true now, that was true at the time of
the founding, So that should not be a difficult proposition
for originalists in this case.

Speaker 4 (03:33):
As you said, there's no opinion, so we don't know
what they based this on. But can we assume that
they found the government would win on the merits.

Speaker 2 (03:44):
That's really the only plausible explanation. The lower Court's decision
seems to have met all procedural requirements. The lower court
was preserving the status quaal, which is a traditional form
of an injunction. And clearly there is irreparable injury alleged
by the plaintiffs that would be impossible to address if

(04:08):
the department is in fact collapsed. So the court must
be concluding that plaintiffs will ultimately lose on the merits,
But it doesn't tell us how, and I can't guess.

Speaker 4 (04:19):
Jes As Sonya Sotomayor, who wrote the dissent on behalf
of the three liberal justices, said the decision was indefensible,
handing the president the power to repeal statutes by firing
all those necessary to carry them out. Do you agree
with her dissent?

Speaker 2 (04:38):
I'm afraid I do. The Supreme Court has talked in
other settings about the effects of actions. When it found
the president couldn't be criminally prosecuted for actions taken in office,
the court couldn't find anything in the concuition or statutes

(04:59):
that supports them. What the Court said is the effect
of this who would be the week in the president
too much? Well, the effect of what the president has
done to the Department of Education is to collapse the department,
and there's a lower court that hurd a great deal
of evidence that has reached that conclusion. It's disturbing that

(05:21):
the Supreme Court is not recognizing those effects when it
was so eager to do so in other cases.

Speaker 4 (05:28):
Since April, the Supreme Court has signed with Trump every
time he made an emergency request. That's fifteen times, on
issues ranging from immigration and the firing of federal workers
to dismissing transgender service members from the military. Is that
a contrast to the way the Supreme Court treated President Biden.

Speaker 2 (05:51):
It's a contrast of the way they treated President Biden,
who had many of his most important policies and joined
from day one, including policies that would have been much
easier to unwind if they were ultimately found unlawful than,
for example, destroying the Education Department or destroying you as aid.

(06:11):
This is also more deferential than we saw in the
first few months of this administration, which is even more disturbing.

Speaker 4 (06:21):
Can you hazard a guess as to why they're giving
Trump everything he wants? Are they just throwing up their
hands and saying he's the president?

Speaker 2 (06:30):
Well, the Chief Justice has long been known for wanting
to present as united a court as possible, and the
Chief Justice in the first month of the administration was
able to get some of his conservative colleagues to join

(06:51):
him in the liberals in reigning in the excesses of
this administration. I'm guessing that the Chief Justice has reached
the point of despairing of getting his colleagues to join him,
and is not eager to override the administration on bear
five four or six three votes.

Speaker 4 (07:12):
Trump and Education Secretary Linda McMahon have repeatedly said that
this is going to return responsibility for education to the states.
But don't the States already have the brunt of responsibility
for education?

Speaker 2 (07:27):
Of course they do. Education. This country's overwhelmingly state funded,
even more overwhelmingly state controlled. The Department of Education has
been limited to providing additional funds where state and local
resources are insufficient, and providing things that are more efficiently
purchased on a national level, such as curriculums such as

(07:52):
guidance and sharing of best practices. The Department of Education
is a well of the least intrusive federal agencies. Statement
doesn't make very much them.

Speaker 4 (08:02):
The Trump administration says they want to return education to
the States, but on Monday, twenty four states and the
District of Columbia sued the Trump administration for withholding more
than six billion dollars in federal funding for education programs.
North Carolina Attorney General Jeff Jackson said the consequences could

(08:23):
be dire for American students.

Speaker 1 (08:26):
The effect is going to be massive, and it's going
to be immediate. This is plainly against the laws, against
the constitutions, against the impoundment. From a legal standpoint, this
is not a hard case.

Speaker 4 (08:37):
So the Trump administration's actions seem to be a little contradictory.

Speaker 2 (08:42):
Yes, which suggests that this is more of a nuilist
approach than a different philosophy. You wilect a different president,
you should expect that they'll pursue a different philosophy. But
so far, what we're seeing here is or wrecking ball.
We know they're against lots and lots of things, it's
not clear what they're for.

Speaker 4 (09:00):
Trump has argued in the past that, you know, the
Education Department is unnecessary and also a tool of woke culture.
The agency is charged with enforcing civil rights laws that
bar discrimination and federally funded schools, and that office is
going to be hit particularly hard by this. It's going

(09:20):
to lose about half its staff and seven of eleven
regional offices. I mean, do you think that's part of
the goal here to eliminate that.

Speaker 2 (09:30):
It's hard to know, because this administration has used civil
rights allegations to buttress its attack on colleges and universities.
So it's clearly interested in using the Education Department as
a club. If you want to talk about limiting the
role of federal government, having it try to micromanage how

(09:54):
a university makes faculty appointments and selects people for tenure.
It's a huge overreach beyond the traditional role of the
federal government, and that was not done under Joe Biden
or Barack Obama. That's something that this administration has innovated,
though they're not very consistent about whether they want a
strong or a weak education department.

Speaker 4 (10:15):
David, you often give me examples from history, anything in
US history that's instructive here.

Speaker 2 (10:20):
There's one thing that strikes me about this, which is
that this Court has told us again and again that
it's originalist. The fourth law that Congress passed after the
ratification of the Constitution was to start creating cabinet departments.
So the first Congress understood that it got to choose

(10:42):
what cabinet departments we would have. And you would think
an originalist court would pay special attention to that and
not allow a president to make these decisions. If George
Washington couldn't decide what cabinet departments we would have, Shirley
Donald Trump can't.

Speaker 4 (10:59):
And another point from his street, George Washington refused to
run for a third term. Thanks so much, David. That's
constitutional law professor David Super of Georgetown Law. And according
to a Quinnipiac poll in March, sixty percent of voters
opposed Trump's plan to eliminate the Education Department, with thirty
three percent supporting it. Coming up next on the Bloomberg

(11:21):
Law Show, Trump's anti trust enforcers clear three deals worth
sixty three billion dollars in one week. We'll talk about
what that signals for the next four years. Remember you
can always get the latest legal news by listening to
our Bloomberg Law podcast wherever you get your favorite podcasts.
I'm June Grosso and you're listening to Bloomberg.

Speaker 6 (11:43):
I see it as my job to scrutinize deals consistently
with the timeline Congress created and our antitrust laws. And
if we think that they are illegal and we think
that we can win in court, we're going to go
to court. But if we don't think that they are
illegal or we don't think we can win in court,
the FTC is going to get out of the way.

Speaker 4 (12:02):
Federal Trade Commission Chair Andrew Ferguson has repeatedly said that
if his agency can resolve issues with a proposed merger,
it will get out of the way. And it appears
that both Trump's anti trust enforcers are getting out of
the way of multi billion dollar deals. In the last
week of June, the FTC cleared candymaker mars thirty six

(12:24):
billion dollar acquisition of pringles maker Kellinova, It approved Omnicom's
thirteen point five billion dollar buyout of rival into Public,
which will create the world's largest advertising agency, and the
Department of Justice cleared Hewlett Packard's fourteen billion dollar acquisition
of Juniper Networks. More than sixty three billion dollars in

(12:48):
deals cleared in the same week. Who better to explain
what's happening with the anti trust regulators than my guest
Harry First, a professor at NYU Law School who specializes
in anti trust, Harry the FTC, and the Justice Department
cleared three deals worth more than sixty three billion dollars

(13:08):
in the last week of June. What does this tell you?
Is it the change in management?

Speaker 7 (13:13):
Well, there's certainly a change in management. The question that
everyone asked when management changed is what direction? So I
think people were looking at two big things. One where
the cases against the dominant platforms, the big tech platforms
that were ongoing neared five of those what would they
do with those? And the second is what were they

(13:34):
going to do with mergers? So on the first they've
kept them going. They haven't dismissed anything. They're litigating them
just like they were before, in fact emphasizing the continuity
of the position of departments taking in some ways maybe
not surprising given sort of the maybe populism streak in

(13:54):
the Trump administration, but in some way surprising because they
have moved closer in closer to put up or shut up.
You know, you have to remedy these things. So that's
where we are with those. The other side was the mergers,
and out of the box they filed the case HP's
acquisition of Juniper Networks, and it was the first case
they filed, and it looked like a Biden complaint. I

(14:19):
think people were saying, look, what they're going to do
is they'll they'll pull the merger guidelines that were issued
in twenty twenty three by the Biden FTC and Justice
Department widely viewed as pretty aggressive in terms of enforcement. Yeah,
maybe they're going to pull those and pull back from
merger enforcement. But what we saw in that first case

(14:40):
was they file the case, they cite the twenty twenty
three guidelines, they follow them, they say, hey, this case
is presumptively bad because it increases concentration, and you know,
they're trying to suppress the more innovative firm.

Speaker 3 (14:55):
WHOA.

Speaker 7 (14:55):
That seems to me surprising, So I thought, well, maybe
it's something in the changeover. That person who signed it,
maybe doesn't understand what he's done, or who knows. You know,
we're not well supervised. But they kept it going. And
so the next question is, well, what are they going
to do with these cases? And you're right now we're

(15:15):
seeing a string of dismissals.

Speaker 4 (15:18):
Let's look closer at the Hewlett Packard acquisition of Juniper Networks.
What was the settlement like there?

Speaker 7 (15:25):
The Justice Department announced the settlement. So on a Saturday,
a hot news Yeah, thatatur day, June the twenty eighth,
they announced the settlement of HP Juniper. This is a
fourteen billion dollar acquisition. So the settlement that they explain,
and this isn't over yet because the judge has to
approve it spins off some part of HPE that does

(15:50):
networks for small business. So it looks like small ball.
You know, it's not even clear how that's going to
affect competition. Remember they pleaded that this was highly constant, traded, industry,
anti competitive, strong head to head competition between the two firms.
What's the other part. The other part is a compulsory
license to the software that Juniper has called missed. Now,

(16:13):
a compulsory license means actually the merge firm gets to
keep it. They don't have to get rid of it.
All they have to do is license it for which
they'll get some money, but non exclusively, so they get
to keep it. And then do they have a potential
licensee for this, No, they don't seem to have anyone.

(16:35):
They are going to appoint a trustee. So who's going
to take this license? Is as valuable? Isn't it not explained?
And they say maybe a second party will show up. Well,
a second party shows up, says the decree with a
bid of over eight million dollars, they can have a
license to eight million dollars. Might be a second bid.
Remember this acquistition is of fourteen billion dollars acquisitions. So

(16:59):
is an exclusive license to this software valuable? Will someone
come up and take it? Who might it be? No idea?
So that's where we are. Looks to me like we
can call it, shall we say, a really weak remedy
for a case that's pleaded That looked very strong. So

(17:20):
this is your insight into where merger enforcement might be going.
The first case out of the box looks strong when
it's pleded. Looks to me at the moment, ay, maybe
more information will turn up pretty weak on the remedy
that they go forward to allow the merger to go forward.
And this seems to be the mantra that you know,

(17:42):
we've got these strong guidelines on the books that look
very pro enforcement. Maybe we'll file a case and then
have a weak remedy. Or here's another good part. Maybe
we won't file a case at all and just let
these things go through.

Speaker 4 (18:01):
The Omnicon deal creates the world's largest advertising agency, and
they got FTC approval by agreeing to stop withholding online
ads for political reasons, so no economic concessions, you know.

Speaker 7 (18:17):
Another tactic is just to let it go through. And
in the advertising agency creates the largest advertising agency ever
for an administration that talks about how horrible concentration is.
You have to wonder exactly what's going on. There is
one more moler I guess interesting case in any trust

(18:38):
division allowing a merger to go forward, and it's a
cellular phone merger and it's T Mobile acquiring a smaller
company called US Cellular, and that they led through without anything.
But interestingly, they filed something that's called a closing statement
explaining why they closed case. This is pretty rare for

(19:02):
the Justice Department to do or the FTC. They don't
usually explain why they don't do something, and there's a
lot of controversy about this, but this one they explained,
and I urge people to go and read it because
it's sort of funny. It's like, I think of you
remember the old Chinese fortune cookies, oh yeah, you know, right,
and you always thought you'd open one up whether the
fortune would be help I'm being held prisoner in a

(19:26):
Chinese fortune cookie factory. Well this was sort of like that,
because the closing statement was almost a statement about why
this merger was so any competitive and why it's so
needed to be stopped that we didn't do anything. And
what's also sort of great about it, and it is
from the closing statement, this is just a department writing

(19:48):
the company understood the unmet needs of customers. Okay, this
is the company that's going to be acquired, the company
that understood the unmet needs of customers, right, and they
called the customer's farm town, frugal and hart Land families.
All right, it's just great. And these in some ways

(20:08):
would sound like you know, JD. Van throte this, and
they are the consumers. You would think this administration purports
the one to protect, and instead what they're going to
be allowed to do is to join the Sprint network,
which presumably they decide not to do in the first
place when they signed up with US Cellular. And then
it goes on to lament the concentration in the cell

(20:30):
phone market. It's a big three, and we the Justice Department,
and we don't seem, you know, to be doing anything
about this. It is truly a curious document. Final curious
point on this Sprint T Mobile merger was supposed to
establish a fourth carrier, you know, through Dish. So Sprint

(20:50):
had to give Boost Mobile system to Dish to help
them establish a fourth carrier. No hint in this state
that there's a fourth carrier that might emerge, even though
this apartment is at this very moment supervising the decree
that they entered that purported to establish or hope to

(21:14):
establish a fourth carrier. So this is curious, bizarre prisoner
in the Fortune Cookie factory material. But again it's sort
of this why we see these problems, But hey, I
don't think we're going to do anything about it.

Speaker 4 (21:31):
Harry FTC chair Ferguson has criticized the buying administration for
its refusal to negotiate settlements. Listen to what he said
and tell me what you think.

Speaker 6 (21:42):
In the previous administration, a deal would enter the FTC
and it would sort of disappear, and sometimes it could
disappear for months while you know, novel ideas were floated,
different theories and sometimes it sort of seemed like the
FTC was hoping that deals would die on the vine
while they wait for regulatory clearance. I want nothing to.

Speaker 4 (22:02):
Do with that.

Speaker 7 (22:03):
I mean, you can always make a deal if you're
willing to give up a lot, that's not hard to do.
You either don't do anything, you know, the cell phone acquisition,
or you do something weak the HP Juniper Networks merger.
There was reason why the Biden administration forces said we're
backing away from all these deals is because the remedies

(22:27):
that had been agreed in so many of these deals
turned out to be ineffective. There were studies of this
that you know, you'd say, oh boy, this will re
establish competition in the market, and then it didn't. And
so what happened that people basically went forward and we
lost competition. You know, every once in a while to

(22:47):
be some good remedy. But basically the argument was, you know,
it's really hard to create competition through these government decrees.
The better thing is not to let competition go away
by allowing them. So, you know, that was the basis
of the policy in the Justice Department the FPC. Not
that they didn't settle cases, they didn't and not all

(23:10):
of them were actually effective. They weren't, but the overall
thrust was worth seeing. We're not settling. And then parties
were put together deals knowing that there was a greater
chance of litigation. Now it's gone the other way, and
you know, I think that this is what a deal

(23:32):
making the administration would want. And it looks to me
like that's where they're going, always with the ability to
bring suit in a case that suits them, because the
twenty twenty freaquent oidelines have a lot of discretion in them.
And the flip side of we'll negotiate a lot is

(23:53):
but maybe not with you. So we have yet to
see with whom they are tough.

Speaker 4 (23:59):
It's always great to get you insides. Harry some from
inside a fortune cookie. Thanks so much. That's Professor Harry
First of NYU Law School. Coming up next on the
Bloomberg Law Show. Thousands of Afghans get a temporary reprieve
from being deported. We'll talk to their attorney. I'm June
Grosso and you're listening to Bloomberg. A reprieve for nearly

(24:23):
twelve thousand Afghans. The Fourth Circuit Court of Appeals has
stepped in to keep protections in place that have prevented
the Trump administration from deporting them, at least until Monday.
The administration has moved aggressively to remove temporary protected status,
or TPS from Afghans and hundreds of thousands of people

(24:44):
from six other countries as part of the administration's efforts
to ramp up deportations. Joining me is Samuel Siegel, senior
counsel at the Institute for Constitutional Advocacy and Protection at
Georgetown Law. They're suing the administration and over the revocation
of temporary protected status for Afghans on behalf of KASA,

(25:05):
a nonprofit immigrant advocacy group. So, before the appeals court
stepped in, the Trump administration had planned to deport nearly
twelve thousand Afghans this past Monday. Tell us what happened.

Speaker 5 (25:19):
So, the Trump administration had announced that it was ending
temporary protected status for Afghanistan this week, it announced that
the conditions that initially led to the designation of that country,
the ongoing on conflict between Taliban and other insurgent groups,
and the extraordinary humanitarian conditions, were essentially no longer so

(25:39):
severe that it merited that designation. I guess to take
a step back and talk a little bit about TPS.
TPS is a status that the Secretary of Homeland Security
can designate a particular country for based on certain conditions
in those countries, particularly if the country's experiencing an ongoing
armed conflict, if there's a natural disaster, or if there's

(26:00):
another extraordinary condition in the country. If the Secretary makes
that conclusion, then he or she will designate the country
for TPS, which allows individuals from those countries to live
and work in this country for a particular set period
of time. Secretary of Manorcus concluded that Afghanistan merited that
determination back in twenty twenty two and extended in twenty

(26:23):
twenty three based on those conflicts and the conditions in Afghanistan,
and Secretary norm at least purported to say that those
conditions no longer existed now. Of course, our challenge, one
of our arguments is in fact, that purported rationale for
the decision is not the one that's actually motivating the
actions here. Our argument is that this is a preordained

(26:44):
decision as part of the Trump administration's broader effort to
reduce the number of non white immigrants in this country,
and that's the basis on which we have asked the
Fourth Circuit to pause the PPS termination while the appeal
plays out.

Speaker 4 (27:00):
Also arguing that the Homeland Security Secretary's determination that there
are notable improvements in the security and economic situation in
Afghanistan and that Afghan nationals can return safely, are you
also arguing that that's actually incorrect.

Speaker 5 (27:20):
We're not making that specific argument, in part because of
some jurisdictional bars on what the courts are allowed to consider.
I think what we are as pointing to that the
conditions in the country are not good, and this further
supports the argument that the purported rationales that things have
improved are not the actual one. So it's that mismatch
between what's actually going on in Afghanistan and the actions

(27:43):
here that support our argument that even if things might
have improved a little bit, and that's not really the
reason that she's doing that. And I would just note
to this effect. You know, as part of the litigation here,
the administration had to produce an administrative record, which is
all the things that were in front of the Secretary
when she made her decision, and in November of twenty

(28:06):
twenty four, the US Customs and Immigration Service concluded that,
and I'm going to quote here quote Afghanistan's civilian population
faces dire challenges, including a collapsing economy and healthcare system,
ubiquitous food and security exacerbated by drought, and widespread insecurity
due to decades of armed conflict and insurgency that are

(28:27):
entering a new danger phase. So again, we're not necessarily
challenging the underlying factual conclusion of what's going on here,
but we're saying that these kinds of statements from the
federal government itself demonstrate that there's really something else going
on here.

Speaker 4 (28:42):
So Federal Judge Schwang allowed your challenge to TPS to
go forward, but he declined to halt the administration's policy
and preserve GPS protections. He found that your group hadn't
established sufficient likelihood of success on the merits. Why he
thought that you wouldn't succeed on the merits.

Speaker 5 (29:03):
Here, I think Judge Swang issued a well considered and
balanced opinion. He concluded, as you said, that our challenge
can go ahead, notwithstanding a couple of jurisdictional arguments that
the defendants had raised. And he also concluded by pointing
to things like the US Custom and Immigration Service report
that I just quoted that we had plausibly alleged that

(29:23):
the action taken with respect to Afghanistan is part of
a broader policy to reduce the number of non white
immigrants in this country and to effectively terminate almost all
TPS designations. But then he said, we had not yet
introduced enough evidence to sort of get over that likelihood
of the success on the Merits hump, and so there's
some delta there in his mind that we hadn't yet demonstrated,

(29:47):
and he said, look, I'm going to allow this claim
to go forward, but at this point I'm not going
to enter relief. So we respectfully disagree with that part
of Judge Chwang's ruling. We think that the allegations we
made here and the evidence before the court was sufficient
to a minimum temporarily pause the termination of Afghanistan's TPS

(30:10):
designation while we get that discovery wall things play out.
And that's sort of the similar request that we've made
of the Fourth Circuit is just to postpone this agency
action while the appeal plays out. And one thing I'll
just note here, you know, Judge Chwang noted that other
courts have entered preliminary relief of some sort in response
to similar claims and similar amounts of evidence in the

(30:32):
past and the first Trump administration and said, well, we
hadn't produced enough evidence here. I think it's important to
note that in those cases, the time between when the
end of the TPS designation was announced and when it
took effect was in most cases more than a year.
So those parties had, you know, much more time to

(30:52):
produce the kind of evidence that Judge Chwang is asking for.
When we're asking for just this sort of temporary relief wall,
things are playing out the merits. We think that first
of all, the evidence that we have produced and the
things that we've pointed to, like the thing from USCS
that I pointed you to, like some other statements from
President Trump and Secretary Nome, demonstrate that this is part

(31:13):
of a preordained effort and demonstrate that we will likely
succeed on the merits when we get there, especially as
we get into discovery and produce more evidence in support
of our argument.

Speaker 4 (31:23):
The Fourth Circuit gave you an administrative stay for a
week until Monday. What's been happening.

Speaker 5 (31:29):
Right so for right now, as you mentioned at the outset.
The Afghan PPS designation was set to expire on Monday.
By virtue of the Fourth Circuit's decision, it postpones that
action for at least that week, which means that Afghans
who are facing the possibility of either having to leave
this country or exist in some legal limbo and not
be able to work, are able to do so for

(31:50):
at least this week. In the interim, the Court has
asked us to brief our request formally called a postponement
of agency action pending appeal, and then we'll get it decision,
presumably at some point before Monday at eleven to fifty
nine pm.

Speaker 4 (32:05):
Is this a losing battle in the end, because if
and when it reaches the Supreme Court, you're not likely
to find a receptive audience, at least among the conservative justices.
At the end of May, the Supreme Court allowed the
Trump administration to immediately strip the legal right to temporarily
live and work in the US from as many as

(32:26):
half a million people from Cuba, Haiti, Nicaragua, and Venezuela.
And that followed another order in May that allowed the
administration to end TPS protections for three hundred and fifty
thousand Venezuelans. So is the Supreme Court likely to end
TPS protections for Afghans as well.

Speaker 5 (32:46):
So I don't want to make too many predictions about
exactly what the Supreme Court is going to do here.
I will say that we're very confident in our case,
and I'd just like to parse out those prior grants
of I think stays of lower court orders. So with
respect to the qubations Venezuelans and Nicaraguans, that was actually
with respect to a parole program that had been adopted
by the Biden administration, so it didn't involve temporary protected status,

(33:10):
and I think, you know, sort of trying to extrapolate
what the court said they are and apply it here,
I think is a very difficult thing. Similarly, with respect
to the Venezuelan program, that was was respect to the
temporary protected status, but in that case the arguments that
were being made were different from the ones that are
being made here.

Speaker 2 (33:25):
There.

Speaker 5 (33:26):
For example, the plaintiffs argued that Secretary Majorcists, who had
extended the TPS designation for Venezuela for about eighteen months
at the end of the Biden administration, and then Secretary
Nome had revoked that extension. The plaintiffs there argued that
Secretary Nome doesn't have that sort of authority. We, by contrast,

(33:46):
here are arguing that the reasons that we're given were pretextual,
that this was a preordained effort. Also, you know, I
think there are extremely strong equities here, as Judge Schwang
recognized in his decision. I mean with Afghans in particular,
we're talking about individuals who served our country. One of
the members of Kassa who's our client here is a

(34:09):
person named Bs who faced death threats due to her
work as an interpreter for international and United States agencies,
and she's fearful that if she's returned, she's going to
be targeted by the Taliban if she goes back to Afghanistan.
So again, I think it's always a little bit of
a hazardous proposition of guessing what the Supreme Court might
do if we get there. But we think that we've

(34:29):
got a very strong case and that what the Court
did with respect to Venezuela and with respect to the
parole program doesn't shed all that much light on what
it might do here.

Speaker 4 (34:38):
Can some of the Afghans that you're representing apply for
special immigrant visas or asylum.

Speaker 5 (34:46):
Some may be able to, you know, but I think
it's important to emphasize here that TPS is the bird
in the hand. It guarantees them the ability to be
in this country. It guarantees them the ability to work
in this country. It guarantees them under the statute, they
cannot be put in detention on the basis of their
immigration status. Things that may not apply to everyone that

(35:09):
is securing or in the process at least of securing
relief through other means. So there might be other things
that are available. Whether or not they will ever be
able to take advantage of those status, you know, who knows,
especially as this administration has assiduously worked to make those
kinds of relief further out of reach.

Speaker 4 (35:27):
And how do you respond to the White House's statements
that Temporary protected Status was never intended to be a
de facto asylum program, and that's not supposed to be
just renewed over and over again.

Speaker 5 (35:39):
And I think that's certainly right. I mean, it's baked
into the name temporary protected status, but there are specific
criteria that the Secretary is supposed to analyze in good
faith in determining whether or not to designate a country
in the first place, and to extend, including for example,
whether or not there's an ongoing armed conflict there. The

(36:00):
Secretary offers reasons that are contrary to one or offers
reasons that are pretextual. We just don't think that that's
the basis for being able to terminate a TPS protection.
And if she makes a good faith assessment, then this
can be terminated. And TPS designations have been terminated in
the past, just hasn't done what the statue requires in

(36:21):
this instance.

Speaker 4 (36:22):
Thanks for joining me today. That's Samuel Siegel of the
Institute for Constitutional Advocacy and Protection at Georgetown Law. 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,

(36:44):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg