This is Bloomberg Law with June Brusso from Bloomberg Radio.
Never in my life have I had a problem that I did not see an ended.
Two I don't see an ending to this.
New York City Mayor Eric Adams didn't mince words when describing the crisis the city is facing because of the more than one hundred thousand asylum seekers. The Adams administration estimates that ten thousand asylum seekers are arriving each month bust in from Texas and that it will cost the city about twelve billion dollars over the next three years.
This issue will destroy New York City.
My guest is Leon Fresco, a partner at hollanden Knight. He was the former head of the Justice Department's Office of Immigration Litigation during the Obama administration. Leonn Adams says the lack of support from the federal government is alarming. He's reached out to the Biden administration. The bidy administration has criticized what he's done, saying there's no exit strategy. Why isn't the Biden administration stepping in to help out in New York City?
This is a fascinating question, and this is where I think there's been a major lack of congruent in some things that's happened, and it's not really explainable, which is this, Eric Adams has a problem with people arriving in New York with no plan for what they're going to do, and that problem isn't supposed to exist in the immigration law in this sense. Technically, technically, there's a lot of debate about whether you can even be led even to the interior of the United States. Fund we can have
that debate. There's a lot of people who say, no, no, no, you have to either be debained or made to way to Mexico. You shouldn't be allowed in the interior. Well, the Supreme Court I said that's permitted, so fine, people are allowed in the interior. But there's another important points to be made here, which is that Ice, even under the Obama administration, used to have a policy that said, if you don't have anywhere to go, you're going to
be a nice detention. And I don't know where that ended up suddenly being swept under the carpet or being eroded in the water. I don't know where that happened. But I do think Eric Adams has an argument to make, other than the fact that people don't like people being placed in ice custody, that if you come to America and you have no plan of any human being who will care for you while you're here, a friend, a cousin, an uncle, a grandparent, somebody who knows you, then yes,
you have to be places into ice custody. You can't be in a hotel or on the street or something of this nature. That's never what's supposed to happen. The whole point of ICE releasing people from their custody was because they had someone who is going to make sure that these individuals would attend their court proceeding and would move on to the next steps of their taste, not that you would need city housing or you might sleep on the street or something of this nature.
These migrants being shipped to New York City are here legally, right.
What happens is they come to the borders, they are placed into expedited removal proceedings, meaning that you arived here, why are you here? And they say, I don't have a reason to be here other than I'm asking for asylum, So then they get places to expedite the removal proceeding They are then told the only way you can say if you're asking for asylum is you have to establish a credible fear that you will be persecuted on the basis of your race, religion, national origin, political opinion, or
social group. They then meet this criteria, and when they meet this criteria, they are then released from detension and they are just put into the state of Texas, whereby now what the new rental is. Greg Abbotson takes these people upon relief from detension and puts them on a bus and sends them to New York or Chicago or
Los Angeles and Philadelphia. That's the final rental. The previous state of affairs was they just the door opens of the detention facility and they're just sucked in Texas, and that's what Texas said, Well, we don't want any more of that. But now the door opens of the facility and they are placed on a bus to some other locations. And the point is they're supposed to attend their trial quote unquote about whether they will win a fium or not.
But the point was, I just was never supposed to release you from the tension if you didn't actually have a plan of action. Of where you would say if you were released from detension, and for some reason that appears to have changed, and that I think is creating a consequence that's completely different than anything we've seen before, because the bear minimum of what used to happen with migration into the United States if people have some sort of plan of who they would stay with when they
arrived here. And it appears that for whatever reason, that has broken down. And I do think to the extent of a message is spend, don't come here unless you have some plan, because otherwise you'll be placed in nice destension. I do think that's a youthful Venturer's.
Defensive in your view, What has Adams done wrong?
Well, there's a couple of things. Number One, you have to figure out when people are arriving in your city logistically, person of all, and there are some cities. LA County's doing this in an amazing passion. They're really handling this with ease. When you compare this to New York. You first have to figure out is there some place that you can go to? And if you can go to that location, it's much cheaper, even if it's an uber ride of one hundred dollars put them in an uber
for one hundred dollars and send them there. Then have them in a shelter or a hotel. That part logistically has not been handled very well. So that's the first that is identifying are there places people can be sent to immediately send them there. I understand that that's the drain on the city's resources, but it's a larger drain to have shelters at hotels and things of the nagers.
That's number one. Then number two, if people are coming to New York and they have no plan of any kind of where they want to go, so that there's nowhere you can transport them to, then that's where what New York has to do is starts to work with ICE in that situation. Because the problem is there's a government statue, it's not even a regulations, the statutes that says if you apply for asylum, you cannot work for
one hundred and eighty days. Your case has to be tending for at least one hundred and eighty days before you can work. And so for those one hundred and eighty days, are you really going to be seeing people in hotels? The whole point of this one hundred and eighty day asylum rule was to prevent what was called a magnet where people would come to the US to work. But imagine if the magnet now is not only you can't work, but you're in a hotel for one hundred
and eighty days. Well, that's the reverse effect of the whole purpose of not letting people work in the first place. Now, the problem Adams has is by the administration cannot change a statue, and so they're stuck. Everybody's stuck here. Nobody can work when they first come to the United States. And so this is why the solution needs to be one much more year towards sending the message to people that it will not be tolerated. That people simply come here and expect to stay in a hotel. That's not
going to be something that's tolerated. People will have to be an immigration detention unless they have a sponsor that's willing to take care of it.
They tried sending leaflets to Texas basically you're not welcome in New York City.
That didn't work. Apparently, what should he do?
Right?
He needs students, coordinate with a Department of Homeland Security and get them to be much more active in Texas to say to people, do you have a plan and a sponsor for remaining in the United States, And if they say no, then instead of putting them outside of the facility where Texas can then place them on a bus and take them to New York, those people get placed into ice attention until they can get a work permit, and then with the work permit they can be released
and they can work and pay for themselves. But there should not be a scenario where people get to be released from immigration custody in Texas unless they have a US sponsor that's willing to take them. And I think that's the policy thing that Eric Adams probably needs to advocate for now. Whether he does that publicly where he would get criticism from the immigration advocates or privately doesn't matter. But I think that's the only thing that will bring
temporary release to New York. I don't think billions of dollars to New York is fixing anything in terms of the larger situation, because I think you have to come back this new issue. This is not a long existing phenomenon. This is a relatively new issue of people coming to the United States with absolutely nobody that they know of any kind saying that they expect to be housed in
some hotel or facility. That's something completely new, and so the government needs to address this so that this doesn't become a long standing phenomena.
Is this helping Texas sending all these people up here?
From Texas's perspective, this is getting everybody an equal skin in the game, so that pressure gets placed on the Body administration to adopt the remain in Mexico policy that Trump has. That's essentially the endgame for Texas is if you can then get Eric Odams of set In, the mayor of Los Angeles and the mayor of Philadelphia at the mayor of Chicago, and they all drew a bider and say we give up, do something, and then Biden
has to do remain in Mexico. Then, from Texas's perspective, okay, that's a big please, but is not going to happen. I don't know, but certainly to the extense, that's the solution that the cities are offering is give us billions of dollars to put people in hotels. I don't know that that's the best solution. I think you have to put more onus on people coming here to the United States to find their own housing solutions, and if they're
unwilling or unable to find their own housing solutions. That was the entire reason the concept of immigration's attention was created.
Len I want to turn down to DOCA. For the second time, a Texas federal judge has declared DOCA illegal. It's a blow to the Biden administration, which issued regulations to codify DACA in an effort to preserve the legality of the program, which the young immigrants known as Dreamers from deportation, but Texas and eight other Republican led states
continued to challenge DOCA in court. The issue will likely be decided by the Supreme Court, the third time the program's fate will be before the Court.
Seems like we've.
Been hearing about DOCA and court rulings for years and years since it was first launched. Why so many hearings, Why no resolution?
Well, this case has gone through several stages, and so what happened and this might actually be something that the Supreme Court touches upon even when it ends up finally reviewing DACA is that for many years, the DOCCA program itself was actually not challenged by the State of Texas.
The State of Texas only got involved in challenging things when there was a second program at the very end of the Obama administration called da FAV which would have given legal stitus to the parents of undocta ment to children, and that would have been about a four million person legal status program. That's when the State of Texas gets
involved and they end up in joining the program. The Obama administration ends, that's the end of it, and then the question happens, well, what about dot CO, And this is where Jeff Session and the Trump administration tries to get the State of Texas to SEO to actually eliminate doc CO, because the State of Texas actually wasn't interested in eliminating DOCA because of the sympathetic nature of the population and a lot of the problems that DOCTA faults.
But nevertheless, Attorney General Jet Sessions that's design convinces the State of Texas to su and the Attorney General Jet Sessions also tries to eliminate DACA on his own. The Supreme Court says that the way he did it was illegal, so it gets kicked back to the Department of Homeland Security. In the meantime, this lawsuit then restarts because they were waiting for the report to do their decision on what
Jeff Sessions had done. And this lawsuit restarts. But the Trump administration then ends, which brings in the body of the Administration, which brings in a new DOCTA rule. And so now we're finally in September fourteen, twenty twenty three, at the culmination of all of this, where we're now at a direct shot to the Supreme Court about the final choices nobody has ever analyzed, which is it DOCA legal tell us.
About these Homeland Security Department regulations that the Buying administration issued last year.
Sure, so here's the issue. So when DOCA was announced originally in twenty twelve, it was done by a memo. It was not a big long government regulation where there's a notice of proposed rulemaking, there are sixty days of comment, there's a lot of analysis. It wasn't done that way. It was done as a memo, and that memo nobody
bothered it for many years. But then the Obama administration did something called DAPA, which is what I just talked about, and they did that by a memo also, and so in the state of Texas food they said, hey, you didn't do this by notice in comment rulemaking, and the courts agreed, and that was the main reason that the DAPPA program failed. So the idea was, well, if DAPPA and DACA are essentially the same programs, just yeared toward different people, then this needed to also be done by
a rule which had notice in comment rulemaking. And so the Biden administration fixes this argument. So now there is no more of an argument that DOACA is illegal because there was no regulation with notice in comment rulemaking, because in fact, there was a regulation issued by the Biden administration on October thirty first, twenty twenty two, with notice and comment and all the official rulemaking. But the question then became for the court, well is that regulation doing
something but legal? And years where the Court comes down and says, no, this regulation is not doing something that's legal, because you cannot create a program for people who don't have status and give them status, especially authorizations at work. And so that's the issue that's left to be decided by the Supreme Court.
The judge said the creation adoption of the final rule took no steps to avoid any of the substantive pitfalls that have been pointed out, perhaps because DHS did not want to or perhaps because it was not possible to do so and retain the DOCA program as currently constituted.
Do you think that either of those is true?
Well, I think it actually is true in the sense that there are two parts to the backup program. The first part is having a set of criteria for people who cannot be deported, and that part is very important, but it's not the only part, and it's not a program that people would be happy with if that was all that was led. So there's a second step to the program, which is saying, once we've designated this group that cannot be deported, this group also can work while
they're here legally in the United States. And so this is the part that jo Jaanen really takes with saying, look, you never get around the thing that these people can't work, and so the fact that they can work is the main problem I had with the program, and this is what doesn't get fixed in the regulation. Nor is it fair to say that DASS would want a program where those pumps cannot work, because the whole sort of brilliance of the doctor program visa VI that people in it
is that they can live a normal life. They have this work permit. This work permit allows them to get a driver's life, It allows them to get a Social Security number, It allows them to get a bank account, allows them to go to school, it allows them to work. And so if you took away that and just said this is a program of non deportation, it seems us to be DACA as the docas young people know it and experience it.
It. We've talked before about the executive branch and immigration. Isn't this an executive branch function?
So that's what the court is going to have to decide. They're going to have to decide to do components of it. The first component, can you pick a group not to deport? The Supreme Court has basically already decided this issue last year in a case called Biden versus Texas about the prosecutorial discretion guideline, where the Court said the State of Texas doesn't have standing to look at these prosecutorial discretion guidelines. And so that first part of DACA looks very very safe.
The second part about whether the people who are subjective to non prosecution can then be given the ability to work in the United States. That's really what the Court is going to be looking at here, And so that's just going to come down to one of two statues,
picking which one do you like. Do you like the statue that says that if someone is undocumented, there's no choice that the administration has other than encountering them and removing them from the United States, Or do you like the statutes that says that the Secretary of Homeland Security has regulatory authorities for anyone work in the United States,
which would presumably include these young people. So that's the choice the Supreme Court's going to have to make, is which of those statues actually makes more sense in this fact pattern. Can the Secretary of Homeland Security take a slice of undocumented people and actually just out of thin air or in this case of regulation, but nevertheless thin air makes them legal enough so to seek they can work in the United States.
Is the Supreme Court likely to take this case?
They don't have to take the case, but then that would leave a nationwide injunction on new DOCA cases that will be in place. Now what's fascinating is if they then don't end up taking the case at all, then that nationwide injunction expands to ending the program entirely, so they can't be crafty and just say, well, we can not take the case, and then only new cases won't
get taken. The way Judge Haynen's injunction is written is until the Supreme Court does something, we will allow all the people in the existing program to remain and keep renewing their status, but we won't let any new people in. But if the Supreme Court doesn't do anything, then the nationwide injunction becomes permanent and doesn't allow anybody to even
renew their status. So whenever somebody's status expires, that's it can't be renewed, and the DACA program ends gradually over a course of years.
That Supreme Court case last year involving Texas that you were talking about was kind of a surprise coming from this Supreme Court. Do you have any inkling about the Justice's feelings toward DACA.
Well, I mean, at the end of the day, we know that there are three justices that are not going to be on board in any way, shape or forb with the program continuing, which is Alito, Thomas, and Gorss. We know that from the prior cases. What we don't know is Amy, Tony Barrett, and Tavanaughkavanaugh was trying to read some compromise in the prior daca's decision, and by the way, Roberts contains his mind also, so we don't know. I mean, Roberts was pro keeping DACA the last time
around when the Trump administration tries to eliminate it. But the real swing boat is going to be Tony Bears. She has not opigned yet on where she is in DAKA, and so maybe she will be sympathetic towards this group and want to keep it in place. Some compromise will be reached. What I'm hoping for where they miraculously say, hey, look why did Texas state six years to file a lawsuit on this, so many reliance interests came in place.
They don't get the right to food anymore, which is what happened, And I would love for that to be the decision here, because Texas originally didn't care about DACA for so long and only came in when Jeff Sessions forced them food. So to me, from that perspective, that would be a wonderful way to end this. But it's hard to know. Where she will ultimately come out.
Do the States even have standing to challenge.
DOC that's going to be enough. That's going to be another question, because they don't have standing to challenge the first part of DOCA, which is the prosecutorial decision not to support a certain category that's already been decided. What Ben Hainan says in this case, and he's correct, is that in that decision by the Supreme Court, they specifically exented programs that look like DOC not for saying that there is standing, just for saying we don't know if
they're standing, get back to us on this. So that's where we are right now. And then they literally use the words, you know, we do not opign on whether we have standing on a case where there's not just proscutorial discression but prosecutorial discression plus the provision of benefits, which is what happens here. And so that's not a
yes or no that they check with us later. And so J Jayne says, well, that check with us later means that there is standing and so we'll see, we'll see if the Supreme Court agrees with.
That or I mean, should Congress be the one to provide permanent protections to DACA recipients.
Well, for sure, that's the only way to actually provide a country legal status that can't be taken away and brought back and taken away and brought back. Absolutely, is that going to happen anytime in the near future. Not, Given what we're seeing on the border, and given what that means for how Republicans ammigrates an issue, I find it very unlikely.
So the next step is the Supreme Court. Thanks Leon, that's Leon Fresco of Holland and Knight.
Republicans have uncovered serious and credible allegations into President Biden's conduct. Taken together, these allegations paint a picture of a culture of corruption. Now here's what we.
Know so far.
Through our investigations, we have found that President Biden did lie to the American people about his own knowledge of his family's foreign business dealings.
House Speaker Kevin McCarthy opened a formal impeachment inquiry into President Biden for what the Republican leader called a culture of corruption, saying there were serious and credible allegations against Biden. The formal inquiry will focus on his son, Hunter Biden's over these business affairs and whether the President was involved in the dealings or benefited from them, and potentially other topics.
According to a House official familiar with the plans, the impeachment announcement quickly stirred praise from Republican hardliners and scorn from Democrats. The process begins with an investigation by three House committees as Republicans seek to amass evidence for an impeachment vote by the full chamber. If the House votes to impeach Biden, the case moves to a trial of the President and the Democratic led Senate. If House Republicans succeed,
Biden would be the fourth impeached US President Trump. His predecessor was impeached twice by the House, but not convicted in the Senate. My guest is constitutional law professor Susan low Block of Georgetown Law School. Trump was impeached twice. Some House Republicans have been pushing for an impeachment of Biden since they assumed their House majority in January. Is this what the Framer envisioned for impeachment?
No, I don't think so. Impeachment should be a scarcely used, drastic remedy for really bad behavior. I testified when the House was considering impeaching Clinton in the nineties. The House had no idea what an impeachment was because it hadn't happened. Impeaching and president hadn't happened in more than one hundred years. So they had this group of nineteen con law professors
come testify and try and educate them about impeachment. And I was one of them, and we literally conducted a constitutional law class to try and teach them what it is and why it should be only used rarely. And I think we all said, you know, it should be very rare, should not be used often. But if you start impeaching Clinton, now, they're going to open a Pandora's box.
And I think that's exactly what happened. It did unleash this weapon that is now too readily used, being used indiscriminately and much too often.
Going back to Trump, do you even think that he should have been impeached twice?
I think the first impeachment was probably overkill. I think the impeachment for January sixth is warranted.
So in the months that the House has been investigating the Biden family business dealings, it has not found concrete evidence that the President directly financially benefited from his son's business dealings. Should an impeachment inquiries go forward without solid evidence?
I don't believe so. I think impeachment is just as I said, a really drastic remedy, especially when you're talking about impeaching the president. The threat of removing a president is a very serious threat and should be used very cautiously, and I think we have been using it a little too indiscriminately.
They're investigating him for acts that were allegedly done while he was vice president. Does that make any difference about, you know, impeaching him as president.
Well, it's unusual, but I wouldn't suggest that there should be a barrier if he did something as vice president that warrant's impeachment. I do think it's relevant today, even though he's now president. I just don't think that what he did Warren's impeachment.
House Speaker McCarthy unilaterally directed House committees to open an impeachment inquiry after vowing that an inquiry would be launched only with a full House vote, and he blamed his flip flop on Nancy Pelosi changing the rules, which she denied.
Is this unusual? The way he's doing it should there be a full House vote.
I would say yes, yes, it's unusual, and yes there should be a full House vote. It's a really serious step, and we shouldn't lose sight of the fact that impeaching a president and potentially removing him for her undoes the national election. And it should really only be considered for high crimes and misdemeanors and not for little things.
Let's just suppose that it was found that he benefited from Hunter Biden's business deals. In your opinion, would that be a high crime and misdemeanor?
I think I'd have to know more to answer that. I think I'd have to know sort of what his involvement was.
Now, McCarthy said, impeachment proceedings would give House Republicans quote the full power to gather all the facts and answers for the American public. Does it give them any more power to get documents or testimony from the White House?
I am not sure. I think whether it legally does or not, I don't know, But I think as a matter of sort of political pressure, it probably gives a little more weight and it might open up some potential other remedies Congress could use. So I think it does add some weight to their requests.
Former President Trump has been in contact with House Republicans on the impeachment and suggested in a new interview that if the Democrats hadn't impeached him during his time in office, then the House Republicans might not have launched an impeachment inquiry into President Biden. Should anyone be involved besides the House members, I.
Think that we have lost sight of how drastic a remedy impeachment is, and it should be very scarce. I do think that Trump should stay out of it. I'm not sure what his role in that he hasn't a role in this, but I do think that the impeachment remedy is being utilized injudiciously, if there is such a word.
But nearly two thirds of respondents in a CNN poll last week said they believe the President had some involvement in Hunt Biden's business dealings. So if they are able to get enough Republicans to vote simple majority, I guess for impeachment, then the Senate has to have a trial.
Right, Yes, so you need two thirds of the Senate, and in our.
History there's never been two thirds of the Senate voting for impeaching a president for convicting.
The House impeaches and the Senate tries and either it has a conviction or doesn't, And you're right, there's never been a conviction.
The Biden administration has been preparing for this in some sense. Now they're fundraising off it. I'm wondering if you know what their response should be. Is it just let the House do what they want until we see if there's going to be a trial, or are there some ways for them to counter this.
The only way I can think of that the Biden administration can counter this is to generate public opinion opposing it and try and convince the House that it's going down the wrong path. But there's no legal remedy, no judicial remedy. It's just to convince the House that they're making a mistake.
The way this has been.
Done, does it seem purely political for Kevin McCarthy, you know, he's been pressured by some members on the far right and threatened with being voted out as speaker. Is it a political process more than anything else?
It is a political process, and it's designed to be. I mean, it's not a judicial proceeding. It is in the House and the Senate. So it is supposed to be a political remedy, but it should be a remedy of last resort, especially the standard's very high high crimes and misdemeanors. You don't want to take out a nationally elected president out of office for trivial reasons. And we have cheapened the idea of impeachment. It should be very rare, and it's gotten to be less rare.
I'm sure Chief Justice John Roberts would not be happy with having to preside over a third impeachment trial.
I am sure that's right.
Thanks so much for being on the show, Sue. That's Professor Susan Lowblock of Georgetown Law 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. I'm June Grosso and you're listening to Bloomberg