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A Tiny Fish Caught in the Culture Wars

Jan 28, 202538 min
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Episode description

Constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law, discusses the Trump Administration asking SCOTUS to pause four cases. Caleb Scoville, a sociology professor at Tufts University, discusses how a tiny fish got caught in the culture wars. Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses some novel cases against Trump immigration policies. June Grasso hosts.

See omnystudio.com/listener for privacy information.

Transcript

Speaker 1

This is Bloomberg Law with June Grossel from Bloomberg Radio. The Trump administration is asking the Supreme Court to pause four cases so that the federal agencies involved can reassess the government's position in the cases, signaling the new administration will change the positions taken by the Biden administration. The cases involved a Biden regulation granting loan forgiveness for defrauded student borrowers, an EPA waiver to California, and two other

cases involving Biden EPA regulations joining me? Is constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law, How is it fairly recent that a new administration comes in and changes the federal government's position before the Supreme Court?

Speaker 2

It was a long standing practice where the new administration would defend the legal positions of the prior administration. That has been jettisoned by both Democrats and Republicans in more recent years. And I think it makes some sense. Why waste the court's time to go over something when the administration may change position and moved out the whole controversy here?

Speaker 3

The administration is asking for a pause.

Speaker 1

Are they really asking for a pause or since they're asking to stop all written briefing deadlines, does that put the cases on indefinite hold?

Speaker 2

It puts the cases on indefinite hold. They're asking the court for that leeway in order for the agencies involved in this case, mostly the EPA, to reevaluate and change position. And if the EPA does change the position in three of the four cases, that would moot out the current controversies. At their court agreed to accept they.

Speaker 1

Want to review Biden's regulation granting loan forgiveness for defrauded student borrowers.

Speaker 2

So in this case, I think it's quite a sound policy, but it's one that the administration can change. The administration has set up certain kinds of regulations that say, if the student can show that he or she was defrauded by the educational institution, then that creates a borrower defense and the student need not pay back student loans. Obviously, this is controversial as controversial because President Trump was a defendant himself in for the Trump University for some of

these prior cases. But it's a relatively straightforward Department of Education policy. Nonetheless, the new Department of Education may want to reconsider and to change the regulations and that therefore would again moved out the case and the court need not waste its resources in deciding whether the Biden administration had the authority to create this boro defense, which the

Circuit questioned. But certainly this has caused some concern for students who are deciding whether they have to pay back the loans from education that they may not have actually received.

Speaker 1

Another case centers on the Environmental Protection Agency's decision to grant California permission to set stronger climate.

Speaker 3

Rules for cars.

Speaker 1

So this is that sort of infamous California waiver.

Speaker 2

Yeah, and the Trump administration actually limited that waiver during the Glasgow round, so it's not surprising that the administration will take another look at allowing California to impose these

relatively stringent requirements on one bill manufacturers. Ironically, if you will, the case actually has to do with standing question about whether there is kind of addressability for a claim by industry analysis is that this rule will change the kind of composition of cars in terms of electric, hybrid or gas powered that will be marketed across the country. So the case doesn't really relate to this exemption for California at all. It has to do with whether fuel producers

can challenge it. But nonetheless, what the Trump administration said was, we're thinking of limiting the waiver the California So the entire challenge, including the adjustibility issue before the court will be mooted out. And just to add, I mean, it may not be technically mooted out, but there's really no pressing need for the Court to continue its analysis. It's probably alive as an Article three matter, but prudentially there's no reason for the court to hear the case.

Speaker 1

I mean, why even say that they're just considering it. On his first day back in office, Trump said in an executive order that he was seeking the repeal of the new waiver granted to California in December. So it seems obvious where they are. Why are they pretending they're just.

Speaker 2

Going to look at it, because it hasn't happened yet. You know, once we get some senior administrators at EPA with some authority, I'm sure that the exemption will be, if not eliminated, at least scaled back for California. But that hasn't happened yet. And to allow at least the new officials to get into office, and to make a binding order. It was a sort of a cautious, respectful approach for the administration to take.

Speaker 1

The Trump administration also ask the Supreme Court to pause two other environmental cases. Tell us about them.

Speaker 2

Those cases concern in one case, whether there was a denial of an exemption for field companies to not comply with certain kinds of regulations for clean air. And in the other case, it has to do with the good neighbor policy that the EPA has established and a challenge to that. So in these cases it has to do with actually a venue where these cases can be heard. And the administration said, you know, look, as a technical matter,

venue issue is alive. It hasn't been resolved. But if we are going to change our EPA policy so radically, then the underlying lawsuits may not have any kind of both left to them. So you may want to save your resources, Supreme Court and not hear the case.

Speaker 1

In three of the cases at the court, filing show that at least one party is objecting to halting the schedule.

Speaker 3

How does that lay in?

Speaker 1

Is the court likely to grant what the administration wants?

Speaker 2

I think the court is likely to, but in the past it hasn't always done that. There was someone infamous case at the start of the Biden administration dealing with again an EPA matter, where the Court said, yes, it's unlikely that there's a continuing, active controversy, but it may be resumed so it's not dead from an Article three contest, and so it actually hurt the case. So the Court has the capacity to hear these cases, despite what the

Trump administration attorneys have requested. I think they're unlikely to because there is not such a need to clarify the underlying rules at this time or to even decide the venue issue that the Court is likely then to be respectful to the Trump position and get rid of these cases.

Speaker 4

They have the power to.

Speaker 2

So we'll have to wait to see, and if.

Speaker 1

The Supreme Court wants the case is to continue, the justices could point a lawyer to argue the Biden administration's position.

Speaker 4

Yeah.

Speaker 2

Look, the Court has done that in the past. You've appointed Niki Kuriei to really represent the interests of the former administration because the current administrations are no longer defending the policy, and the Court has done that for generations in a number of cases where they've done it more

frequently in recent years, so it could happen. And so, for instance, give you an example, maybe this question of venue, about whether you can sue only in the DC circuit under a statute is complicating individuals' lives in terms of where to sue. It happened before, it may raise its head again in the future, and so the court says, look,

we have a case, let's resolve it now. And that would be a good reason why the court might then appoint someone to represent the Biden administration position on the venue question.

Speaker 1

On Friday, the Justice Department actually reversed Biden administration position in one case over Louisiana's congressional map.

Speaker 3

But that won't have any effect on.

Speaker 1

The case itself, right, because it's not the Biden administration that's suing there. No.

Speaker 2

In that case, it really had to do with an unusual situation where the Republican Louisiana administration was in favor of the new map and yet it was challenged and held to be in violation of the Voting Rights Act. So it was a very unusual political alignment where the political leadership but Republicans, thought that this was a safer way to comply with the Voting Rights Amendment. But obviously we'll have to see what happens.

Speaker 1

These requests involve cases that haven't been argued yet. There are some argued cases that seem to shout out that the Trump administration would want to change positions, and one is the case over Tennessee's ban on gender affirming medical care for transgender miners.

Speaker 2

Yeah, the Scrimmtic case is the one that comes to everybody's mind, and whether the court decided to take the petition that was filed by the Biden administration as opposed to private parties is one for the ages. But it looks pretty clear that the Trump administration may well decide to go slow on the gender firming care and not

have the Supreme Court hear the challenge right now. But on the other hand, maybe they think they have the votes and they've pledged it they only want to have two sexes on passports, and maybe they decided they don't want to have gender firming care and they may want the Court to continue to hear the case. But that's a great example of where a change of administration may or may not result in the Court jettis in the case.

Speaker 1

You know, if you go by the oral arguments, it seemed like Tennessee had the upper hand in the ural arguments. So maybe the Trump administration might want to just take a chance on that.

Speaker 4

They might.

Speaker 2

They might, and I think that they are in pretty good shape, not legally but with the Supreme Court, and so they may make a calculation that this is actually furthering their mission to try to get the court to come down and say that it's within the States rights to limit gender of firming.

Speaker 1

Care also arguments over these ghost guns, which are largely untraceable firearms, and that involves the federal regulation.

Speaker 3

It's been argued, but that might be.

Speaker 1

A case where the Trump administration changes position.

Speaker 2

I think that's going to be a close case because the Biden administration had such a overwhelming case on satutory construction that the regulation could be salvaged. And it's just not clear to me that even the Trump administration is in favor of ghost guns. But as you point out, it's within the purview of the new administration to resin

the regulation. And so if they do resin the regulation, then people can manufacture and sell ghost guns in their basements without any kind of identification and pass by all sorts of regulatory hurdles. That's an extreme position, but it's one that the Trump administration might take.

Speaker 3

And Biden did this too.

Speaker 1

He asked the Justice Department to freeze the battle over the border wall.

Speaker 2

The Bide administration tried to get with respect to some environmental cases as well. And I think as respectful of the Court to tell the Court that this may no longer be a true controversy and that the Court is better off using its limited resources in another area. So I think both administrations active respectfully and by asking the Court to pause. And we'll just have to see what the positions the comp administration ultimately will take.

Speaker 1

Yes, especially when the new Solicitor General is appointed. Thanks so much, Hal. That's Professor Harold Krent of the Chicago Kent College of Law, coming up next on the Bloomberg Law Show. It's a tiny endangered fish that's become part of the culture wars. In fact, President Trump has even blamed it for California's wildfires, but Governor Gavin Newsom begs to differ. I'm June Grosso and you're listening to Bloomberg.

Speaker 3

This is Bloomberg Law with June Grosso from Bloomberg Radio.

Speaker 1

The Delta smelt is a three in silvery bluefish that has somehow become a scapegoat or perhaps escapefish for legal protections to save endangered species and even stranger. President Tromp blames the tiny fish for the devastating California wildfires, saying protections for the Delta smelt led to gaps in water access.

Speaker 5

They talk about the Delta smelt, which is a fish that's is big, but it is it is really not doesn't have to be protected because it's in other areas. It's in numerous other areas, so it doesn't have to be protected. The people of California have to be protected.

Speaker 1

Trump even signed an executive order on day one targeting the Delta smelt entitled Putting People over Fish Stopping Radical Environmentalism to provide water to southern California. But Governor Gavin Newsom says that Tromp has the fact all wrong and that state reservoirs in southern California are completely full.

Speaker 3

And somehow connecting the Delta smelt to this fire, which is inexcusable because it's inaccurate, also incomprehensible to anyone that understands water policy.

Speaker 5

In the state.

Speaker 1

Joining me is Caleb Scoville, a sociology professor at Tuff's University who's writing a book on the politics of the Delta smelt. So Caleb, tell us a little about this little fish.

Speaker 6

The Delta smelt is a small, translucent fish, you know, it's not two three inches long. It lives in the Sacramento San Joaquin Delta, which is where California's major river systems converge, just east of the San Francisco Bay where before the rivers kind of converge and flow out to the Bay. It's a fish that only lives in that area. It's California's largest estuary and it is also the center

of California's water district system. So it's where giant pumps were installed in the mid twentieth century to irrigate farmland in the Central Valley California San Joaquin Valley, and also provides water to major cities in central and southern California, as well as the Silicon Valley. So the fish is small, but it's a native fish that used to be one of the most abundant species in that ecosystem, and it has declined in recent decades because of the human transformations of its ecosystem.

Speaker 1

When did it start to become controversial.

Speaker 6

That's a complicated question. You know, the species became considered for listing under the Endangered Species Act in the late nineteen eighties and early nineteen nineties, and at the time, you know, it was somewhat controversial because regulators and stakeholders, you know, agricultural interest cities, understood that it may complicate the operation of California's water infrastructure. So it was controversial even before it was listed under the Endangered Species Act.

But this controversy was mostly within the world of California water policy. So in the early nineteen nineties, there were you know, concerns about what the effects of protecting this

species would be. When it was listed under the Endangered Species Act, it continued to be controversial, but the listening of this species, and also conflict over water quality standards between the federal government and the state government resulted actually in a lot of cooperation to avoid future lawsuits, and so the controversy sort of died down a little bit, and it really wasn't until the mid two thousands, the mid aus and late aughts that the controversy picked up

again and This was initially precipitated by a legal decision by a judge in California, actually a Republican appointed judge that the regulations protecting this species from those pumps that send water to farms and cities in California, the way that they were running the pumps was in violation of the Endangerous Species Act, and so this resulted in a brief but dramatics shut off of the pump, and then in order that new regulations had to be put in place.

It was twenty seven two eight that this unfolded.

Speaker 1

Before that was anything in particular done when it was put on the endangered Species list to help preserve it.

Speaker 6

Yeah, so when a species is listed under the Endangered Species Act, so any federal agency that has a project that's going to affect the species and could potentially cause harm to the species has to come up with basically a plan to avoid jeopardizing and continued existence of that species.

So there were regulations that essentially regulated the amount of water that could be pumped at particular times, and then there were a series of other measures, you know, including various ways of managing water that were tried to save the species from extinction. It's complicated. I mean, there were some habitat restoration projects. There was something called the environmental Water account, which is essentially like setting aside a certain amount of water could be used to pump into its

habitat at certain periods of time. All of this is basically a way of managing water to try to balance the needs of ecosystems and the human interest in extracting water from its habitat. Now, I should mention that the ADULTA smelt is just one species among many that are affected by California's water distribution system. Salmon that are native to that area are also listed on the Endangered Species Act as our sturgeon, and there's a whole complex ecosystem.

So the ADULTA smelt, it's one species, but it's also very sensitive species, so it's often treated as a kind of indicator species for the overall quality and help of

the ecosystem. And these initial efforts, it was called the calf Ed program cl feed program were intended to sort of balance the needs of the environment and people's interest in water, and as also as a way to provide stability to avoid future lawsuits that might shut down the system because people were really interested in stability.

Speaker 1

When the judge issued this order, how did it change what California was doing with its water systems.

Speaker 6

Or did it did require the agencies to rewrite the way that they were regulating the pumps and managing water in dams. I don't think it's fair to say that it completely reorganized the way water was used in the States. It's a very complex regulatory process that involves using the best available science to come up with a plan to

avoid jeopardizing the continued existence of this species. So there was an initial shutdown of water for just a very short amount of time days, and then there was a new regulatory regime that was put in place, and that was in place for many years. Overall, protections of the Delta Smeuth only account for a pretty small, pretty marginal amount of water that could have otherwise been used by people. But it was the dramatic shut off that actually created

a lot of headlines. And so really the controversy even then was fairly muted, and what made it a national controversy was actually not anything regulatory at all or anything legal. It was when Sean Hannity had an entire episode of his show on the Delta Smelt sort of blaming drought and Great Recession era hardships on the protections of the Delta Smelt. So that was in two thousand and nine, actually, more than a year after the decision that resulted in

the brief shut off of the pumps. So Hannity is actually the person who brought the Delta Smelt into the national public sphere.

Speaker 1

And why do you think this caught on as a controversy.

Speaker 6

First of all, was the contact Barack Obama had just become president of the United States. There was also a recession which was causing a lot of employment right after the financial crisis of two thousand and eight. California also at that time, and it continues to be with Trump just kind of an avatar for everything that is supposedly wrong with liberalism and environmentalism in the United States for a certain subset of conservative commentators. So those aspects sort

of align. And then the Delta Smelt, being a very small and obscure species that is uncharismatic. You know, it's two inches long, it has a funny name, it became a vessel for the implicit message that liberal environmentalists in cities care more about a small uncharismatic species of fish than they care about hardworking.

Speaker 2

Honest people like you.

Speaker 6

So there's a kind of implicit message and sometimes very explicit message that environmentalists simply don't care about their fellow Americans. And you know that could also go for liberals, or could go for Obama, or could go for in this case Skeavin Newsom. And you know, because of the delta smell is a species that doesn't have obvious use to people. Isn't large or beautiful or charismatic. Right, It's not the

bald eagle, it's not even the salmon. It becomes a very useful symbol for everything that's supposed to be wrong with environmentalism in America.

Speaker 1

You wrote that the frequent usage of descriptors like tiny or little suggests that the delta smelt small size and lack of charisma made it the perfect icon to drum up right wing resentment, allowing you to become a divisive cultural object. Yeah, I mean it's a culture war, is fish now?

Speaker 4

Yeah?

Speaker 6

Exactly. And so there's a very complex and interesting history of California water that the delta smelt plays a role in. And the delta smelt is regulated by the Amagive Species Act. It has accounted for some amount of water being set aside and not used by people over the years. That's true, However, this is a much smaller proportion than many critics would imagine. And also those regulations that protect the Delta smelt also protect the quality of the water for people to use.

Because of the where the pumps are, There's only so much you can extract at a particular time, especially, you know, depending on hydrologic conditions, there's only so much you can extract without pulling in seawater right becoming too salty to even use to irrigate crops or drink.

Speaker 4

So the idea, you know, that you.

Speaker 6

Could just stop these regulations and take as much wonder as you want is not true at all. So the culture war thing, you know, in two thousand and nine, I see that as kind of the moment where the delta smelt escaped the world of California water politics. And I've done a systematic media analysis to show that there's no relationship between the hydrologic effects of protecting this species

and when the controversy flares up. So really, the delta smelt as culture war symbol or culture war object has very little to do with the world of California water.

Speaker 1

President Trump has blame protections for this fish for the devastating Palisades fire, that the gaps in water access were due to this delta smelt.

Speaker 6

Yes, he has, and let's be clear, that's completely false.

Speaker 2

There's zero truth to it.

Speaker 4

Right.

Speaker 6

You can see why that connection would pop into his mind because there are regulations of the species that do regulate how much water can be extracted from the sacrament of San Juaking Delta to California's water projects, which are the infrastructure systems. So you can understand the connection. But it's very easy to refuse what he said by looking at the reservoir levels in California and in Southern California in particular, most of which are at or above average

for this time of year. There's plenty of water, so it's not a supply issue. If there was an issue with how much water we could take out of the delta because of Endangered Species X protection, it would be

reflected in the in the reservoir levels. There were issues at the local level for the system that was designed to handle maybe a house fire, to be able to handle a city fire, right and I'm not qualified to say what should have been done there, but the invocation of the delta smelt is a complete misdirection and it does nothing to help the situation, and in fact, it distracts from you know, the real tragedy and the real problems that we face in a you know, climate change

world and also just in cities that face hazards that we need to need to manage.

Speaker 1

So what's the status of the delta smelt right now?

Speaker 6

Yeah, the delta smelt remains listed on the endangered species list, as experts working in the systems and natural scientists working in the system would say, it's arguably functionally extinct. So that doesn't mean that there are no delta smelt left in the system, but there are very few. It is

not what it used to be. There's now actually many more delta smelts living in a captive population sort of trying to maintain the species and do some experimental releases to try to potentially propagate it permanently in the delta than there are in the wild. So it's actually kind of a sad example of what we've done to ecosystems, but it's not as much of a factor in California water policy as it might seem given how much we're talking about it, And there.

Speaker 1

Are other protected fish in California.

Speaker 6

There are other species protections like salmon. And you'll notice that the folks who will vilify the Delta smelt and regulations of the Delta melt rarely mentioned Sam because they know that driving salmon to extinction is not a very politically popular project. So I think that says something about why the Delta smelt is such a useful strategic object for people who want to play kind of divisive culture

war games against environmentalists or imagined environmentalists. But you know, there's a lot of other species that probably deserve our care just as much.

Speaker 1

It's really a fascinating evolution of the Delta smelt into a culture wars issue. Thanks so much, Caleb. That's Caleb Scoville, a sociology professor at Tufts University. Coming up next, some unique lawsuits against the federal government.

Speaker 3

Over ice raids. This is Bloomberg.

Speaker 1

More arrests in President Trump's cracked down on illegal migrants. I says there were nearly twelve hundred arrests yesterday and today. Federal agents conducted publicized arrests of undocumented migrants in New York City, with the new Homeland Security Secretary Christy Nome on hand to watch. She posted a video saying, quote, dirt bags like this will continue to be removed from

our streets. ICE has also touted rests in Chicago, Baltimore, Buffalo, Atlanta, and San Francisco, saying the total of arrests since January twenty third is three thousand, five hundred and fifty two. In the meantime, some novel lawsuits have been filed over

the Trump immigration enforcement actions. Chicago. Organizations that advocate for the national Sanctuary City movement have sued the federal government over its decision to conduct mass deportation rates in the city, saying that the policy violates their First Amendment rights, and a group of Quaker congregations from four states has sued the federal government over a recent policy reversal that allows immigration agents to conduct searches and arrests in so called

sensitive areas like churches and schools. They say the policy violates their First Amendment rights. Joining me is immigration law expert Leon Fresco, a partner at Holland and Knight. Chicago organizations are suing the federal government over its decision to conduct mass deportation raids in the city. I mean, explain what the violation they claim is.

Speaker 4

This is quite a creative lawsuit. I am dubious on its chances of success, but basically they are approaching it from this premise. They are saying that these Chicago organizations have a right to advocate for Chicago to be a sanctuary city, and that the Seventh Circuit, which is the Court of Appeals that governs the Chicago area, so that's the court right below the Supreme Court, has ruled that there's nothing that Chicago does that violates anything related to

immigration law. And so because these groups have a First Amendment right to advocate that Chicago maintain its sanctuary policies that don't violate immigration law. Because of statements that the Trump administration and Trump administration officials have made against Chicago saying that because they are so boisterous in their sanctuary city policies, they will be retaliated against with immigration enforcement.

That this is not legitimate immigration enforcement. This is instead an attempt to thwart free speech, which could lead to the apprehension of perhaps US citizens engaging in free speech or helping immigrants, et cetera. And so their requested relief is no more raids in Chicago. And so that's where I think the case goes a little bit off the rails. Is that seems quite broad to fix this potential violation their claiming might occur.

Speaker 3

So this is novel.

Speaker 1

Have you ever heard this kind of an argument being made before.

Speaker 4

I have seen a similar argument to this with regard to people in immigration detention, where they say I've been retaliated against because I went on a hunger strike or I protested the conditions of my immigration detention, and hence my recourse for this should be that I don't get deported because I need to be able to pursue this

claim that my First Amendment rights have been violated. And the courts have been very dubious and skeptical of these on an individual basis, So to think that they'll do it on a city wide basis and just ban, you know, these types of enforcement actions in Chicago on this basis seems very unlikely. And it's also extremely unlikely because the case has been assigned to a judge that was appointed

vice President Trump. So if they thought that they were going to have a good chance, maybe because a different type of judge might be appointed. They didn't get the best of luck there, and so from that standpoint, I think a generally unlawful theory. You know, they lead to even more lack of success given where it's been assigned.

Speaker 3

I mean, I don't.

Speaker 1

See how a city can stop lawful deportation raids by the federal government.

Speaker 3

I mean, the federal government has the right to make these.

Speaker 4

Raids, right, oh, correct. And this isn't even a city. This is organizations within a city saying that they want to continue having their free speech and that these raids harm their free speech because they're being done in retaliation for their free speech. I mean, look, it's worth a shot. It's a creative argument. It's interesting, but I don't think it's likely to be successful at the end of the day.

Speaker 1

So the Trump administration is targeting, you know, Chicago, also targeting New York, and there were raids, and the Secretary of Homeland Security went on these raates and she posted about the raid.

Speaker 4

Well, I think, look, they are trying to very much trigger to the public that immigration enforcement is a thing.

It's happening. If you are here and legally, you need to be afraid of it, and so they're trying to get as much bang for the buck as they can, knowing that at the end of the day they are running up against very soon a significant push up against what's the current detention capacity, and so very soon, either they're going to have to release the very people they've just been arresting and create the sort of hamster wheel where they arrest people, they put it on TV, but

then a couple of weeks later they get released because there's no facilities for them, or they're going to have to get congressional funding quite quickly to start ramping up the detention and removal capacity. But it's not going to be sustainable to do a thousand arrests a day, and then all of a sudden think that that's going to lead to an indefinite ability to do that without more detention space, without more imtegration courts, et cetera.

Speaker 1

I'm curious because apparently the New York Police Department told officers that it's rules block them because New York is a sanctuary city, it's rules block them from participating in immigration enforcement actions conducted by ICE.

Speaker 3

But the Mayor Eric Adams.

Speaker 1

Seemed to imply that this was being done in coordination with the NYPD.

Speaker 4

Well, I think that what happens is immigration enforcement is in the eye of the beholder. And so if the NYPD is simply there to protect the ICE agents, so to speak, and is not actually interacting in any way with the actual people being apprehended, who are the foreign nationals, then they can try to have it both ways and say they're not in any way, shape or form engaging in immigration enforcement. They're there to protect the ICE agents, and I think that's what you're seeing there.

Speaker 1

And another novel lawsuit about the raids, a collection of Quaker group is suing the Trump administration over its policy that allows federal agents to arrest undocumented immigrants in houses of worship.

Speaker 4

Yes, this is an outgrowth of the policy that was called the Sensitive Locations policy, where the Sensitive Locations Policy was actually rescinded and says now that instead of not being able to go into places like schools and churches to create immigration actions, that there now can be ICE going into these churches and schools, et cetera. Now here's

the interesting thing about that. I don't think ICE has any intention of doing large scale raids in schools or churches or anywhere else like that in any of those sense of locations. But what they are trying to discourage, because this has happened a lot. I mean, this happened a few times during the Bush administration in two thousand and seven, is that people would run into a church

they saw ice was coming. You know, they'd get some notice and they'd see ice coming and they'd run out of the back of their house and into a church. And that these standoffs would happened in these churches where the church would provide sanctuary for the person for months, and you'd see articles about this and you'd say, what is going on here? And so they're trying to avoid them by saying, look, that's not going to happen. We'll go in and we will grab that person if they

expect to run into the church to do that. But of course, now you're going to have this lawsuit and we'll see how successful it is. I don't think it's likely to be successful. But the concept will be that they will say that this was a change that is, you know, needed to be done by notice and comment visa the Administrative Procedure Act, and you can't just make

such an arbitrary and capricious change. And it's also violating the First Amendment freedom of religion because people now won't be allowed to worship in the way they want to because they're afraid that ice is going to come and get them. And so we'll see. I mean, I will say this, the Supreme Court has been much more tolerant or favorable toward religious based arguments than non religious based arguments.

So to the extent that one is making a religious based argument that your freedom of religion is being impinged upon being able to go to church because now you're afraid that church is going to be a place where you're going to get snagged. I mean, it's interesting. I think the question is where does that get narrowly tailored? And also, the courts don't like these sort of facial

challenges without facts. I think what they would say is, look, if you come to us with a specific set of violations as applied, we may say, yes, as applied, these are violating the First Amendment and your free exercise of religion. But just telling us that immigration raids in general can happen in churches doesn't seem like this kind of facial challenge that the Supreme Court likes. So you have their aversion to facial challenges, plus you have their favorability toward

religious challenges. Plus you have the fact that a lot of people do like immigration enforcement in the Supreme Court, all clashing together. But my imagination would be that the immigration enforcement will prevail there until specific examples are given.

Speaker 1

It makes more sense to me than the sanctuary Cities case. At least it's got your first amendment in religion, whereas the sanctuary Cities case, the argument seems really attenuated.

Speaker 4

It's a little bit more of a challenge to win that case.

Speaker 3

But as you.

Speaker 1

Said, both are challenging. Thanks so much, Leon. That's Leon Fresco, a partnered hollanden Knight. And In other legal news today, a federal judge in Washington has temporarily blocked the Trump administration from enforcing a new directive to hal payments of federal grants, loans, and other assistants to an array of programs across the country. The order was in response to a lawsuit filed by a coalition of nonprofit organizations challenging

the payment freeze. The suit claims that even a temporary halt in funding could immediately deprive people and communities of their life saving services, including healthcare, small business support, and programs for the LGBTQ community. The judge will hold another hearing on February third to consider whether to order a longer term freeze. 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 podcasts. 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

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