Court Fights Over School Mask Mandates

mandates in schools. Joining me is Bloomberg Legal reporter Eric Larson. So, Eric tell us about the flurry of lawsuits there here fights the underway in Florida and Texas and Oklahoma, And I think it's the cases in Florida are really illustrative as well of what's going on here. There's parents, groups of parents who are concerned about their children catching the

delta variance of the coronavirus. Has food in both state court and federal court saying that the governor's ban on mass mandates and schools violates the state constitution in the state case, and then the federal case say that it violates the Americans with Disabilities Act by putting children at risk. So it's still necessarily early on in the federal case, but the state case, the judge denying the governor the Santus's motion to dismiss on Thursday. So and now there

was a hearing today. What happened at the hearing, So

the hearing is still underway. Um, it's going to end on Wednesday, and it's the hearing on the parents motion for an injunction against Governor de Santus's ban on mass mandates in school So if the parents win this injunction, then all of the sixty seven or so fool boards in Florida will be able to have mass mandates if they wish, without fear of punishment from the state, which right now the governor has said that he will punish these school districts if they try to impose a mass

mandate that does not have an opt out which would allow parents to opt out for any reason. And of course, health experts are saying that if you have a mass mandate, it isn't absolutely mandatory, it just isn't as effective. So there's testimony take it. Who's test of Well, there are health experts and parents on both sides of the issue who are testifying today and tomorrow and through into Wednesday, and they have an opening statement from both sides this morning.

The parents said that they would be presenting evidence that would show that this delta variant in particular is so contagious and it infects children in a way the earlier variant patent, that there's a particular concern about it in a particular need for faith mass in schools as schools are reopening, and they will also hear from parents who just simply say that it is reckless that the State of Florida is putting their children at risk by essentially

exposing them to this virus. You know in these quotes classrooms, private classrooms, or kids you know are very easily able to spread this virus around and take it back to their family and friends. So the state has said that they will also be presenting health experts. They're going to present evidence that they say will show faith masks are

actually detrimental to kids. They focused on the mental health aspects, thing that covering the smiles and laughter of children was actually bad for their mental health and to cause anxiety and depression, and that it would affect bonding between the students and the teacher. They will also be presenting parents saying that they're thankful that they have this final say on whether or not the children cover their faces and schools.

So the health experts on the governor's side, do you know if any of them are going to say that masks don't help to stop people from getting Actually, actually, yes, this is obviously going to be a real point of

contention in in the hearing um. We haven't gotten there yet, but in the opening statement, the governor's lawyer did say that they would be presenting evidence showing that in the last school year, the counties in Florida that had mass mandates versus those that didn't had almost no difference in the number, you know, the percentage of children who contracted COVID, And I think it's pretty clear that the parents side

is going to argue that that's it is outdated. You know that the delta variants started spreading around earlier this year, and that it just isn't going to show the whole picture without taking delta into a full account. I take it that whatever side loses is going to appeal this right, and it looks like we'll be getting the state case is going to be moving on quite a bit faster here.

It's on a faster track. The subtle case is still being briefed, and there hasn't been any types of big hearings or trials like we're having now in the state case. But you can be sure that there will be appeals of regardless of what the decision is and what's happening

in Texas. What is the Texas Supreme Court done? I think on the one hand, the Texas Supreme Court had ruled that Governor Abbott could ban mask mandates, but on the other hand, in the school lawsuit just said that he had to go through the usual appellate procedure and couldn't jump straight to the Texas Supreme Court. That was the ruling I think last week, or it wasn't exactly a ruling on the merit saying that he couldn't do a ban on mask mandates, just that he had to

go through it a different way to defend it. Even though he is in quarantine because he got COVID despite being vaccinated, he's going through with those fights against mass mandates. Absolutely, He's on the same page as Governor Stantus in Florida. You know, they both agree that yes, the virus is dangerous, yes it's spreading around, but at the end of the day, they believe that parents just have to have the last word on whether or not their children were face masks

to school. That it's a matter of parents rights on healthcare matters, and I can tell you in the Florida case, that specific issue is addressed earlier in the hearing last week, where the parents said that you know, this is just like any other vaccine. That compared it to kids having to take vaccines to go to public schools. So that's a serious matter of health for children, and that parents of public school children don't have any choice in that matter.

The judge even pointed out before he issued his ruling that having a stupid cloths over your mouth would seem to be a lot less of a health issue than injecting a vaccine into your children. So he seemed to already be questioning the idea that a face masks with such a serious health matter that parents had to have the last word. But that wasn't his final word on the matter. He will as you were ruling on Wednesday, but he already seemed a little bit skeptical about that.

Thanks Eric. That's Bloomberg Legal reporter Eric Larson. Supreme Court Justice Samuel Alito has put a hold on a Circuit Court ruling that would force the Biden administration to reinstate a Trump administration policy requiring asylum seekers at the southern border to wait in Mexico for their cases to be processed, a policy that has been dormant for more than a year. Alito, who handles emergency matters from Texas, said he was issuing the stay until Tuesday night so that the full court

can consider the application. My guest is Leon Fresco, a partner at Hollandon Knight. So Leon start by telling us about the Migrant Protection Protocols, better known as Remain in Mexico. Well, in December, the Trump administration implemented this program, called the

Migration Protection pro to call MPP Remain in Mexico. What it would do is it would authorize the CDP, the Customs and Border Protection to return people who were not from Mexico, so they were third country nationals, meaning people from either Central America or somewhere else to Mexico for the duration of their removal proceedings. So what would happen is, even if you were found to have a credible fear of persecution, you would not be led into the United States.

You would be placed into Mexico and then told Okay, well, on this day, your appointment is for your immigration case. We're gonna pick you up and bring you across. So let's say the San Diego immigration courts or the Brownsville immigration courts, and we will do your hearing then. But during this whole time that you're waiting for your hearing, you wouldn't be waiting in the United States. You'd be waiting in Mexico for the hearing. Biden came into office

and rescinded the policy. Texas and Missouri sued to challenge Biden's recision. What did the district court judge rule and

what did the appellate court rule? These cases were brought in the district court first in the Northern District of Texas, and then it went to the Fifth Circuits, which is the court of Appeals that governs Texas, and what the court's ruled in both of those occasions was that under the Administrative Procedure Act, the recision of the Trump administration Remain in Mexico memo was arbitrary and capricious, meaning that the reasons that they gave for rescinding the memorandum weren't

in accordance with the actual facts on the ground, so to speak. And so from that perspective, what they were basically trying to say was that how could, for instance, the Biden administration say that they don't have the resources to detain people when they're not detaining anybody. That that's not true. You know, they have the resources to detain people, and then when those resources are filled, then it would make more sense to keep people in Mexico than to

have them come into the United States. So that was the first thing. Then second that if the DHS had previously said that the Migration Protection Protocol contributed to decreasing the number of people coming into the United States, why

would they now say that that's not true? Also the same thing about if the termination hadn't led to the border surge, why is there a border Third, so they kind of flipped every single thing that the administration had given with regard to the facts of the reasons why it was rescinding the program and saying that none of those reasons we're matching the reasons you were seeing on

the ground. Isn't it true that the program was dormant even under the Trump administration in the later years, Well, right, It was very rarely used. They was used, no doubt, but it was very rarely used because it actually is even that program a resource intensive program in terms of having to track people and if you're gonna do it actually the right way. And there was a lot of lawsuits on this policy that hadn't really been settled. You know,

they were working their way through the courts. You need to figure out a way to track people, give them an opportunity to find counsel, all kinds of things that aren't necessarily happening when someone's in Mexico. You know, they have a lot of barriers finding the government again when it's time for their hearing. And so a lot of people had just missed their hearing. And those people were waiting in Mexico still for their hearing and they just missed it because they didn't have access to all of

the resources they needed to actually attend their hearing. So that was one, but then two, when the remain in Mexico policy had actually been put into effect, that was still sort of in a piloted manner. It was the end of and once we got to then COVID happened and they just switched to Title forty two, which is just they'd even bother processing anybody in the United States and returning them into Mexico. They just at that point

just excluded everybody. And so that was the main reason that Remain in Mexico program kind of went away, was because remain in Mexico requires you to process someone in the United States and then return them to Mexico. And what was happening after COVID was no one was getting processed in the United States. They were just being immediately

pushed back into Mexico the second they were encountered. Since the president has authority over immigration policy, how can states or district court judge till the president what he can or can't do. Well, So this is what super complicated about,

not just this case. There's another case headed right up the same highway where a district judge has basically decided to appoint himself director of ICE for all intents and purposes, where he issued about a hundred page opinion saying if ICE is going to have prosecutorial discretion against any individual that it has encountered, it needs to tell the court and explained to the court why it won't actually move forward with that person removal proceedings, which is quite an

intrusive order, something that goes against what had been the decisions of the Supreme Court in the past about the federal government having the ability to determine who it does and doesn't place into removal proceedings and who it does and doesn't remove. At the end of the day, there's a lot of Supreme Court case law on that issue. So I think that second case probably gets overturned by the Supreme Court. The wrinkle here when the Supreme Court

looks at it is this is still a memo. And so there was a memo putting in the remain in Mexico program, and there was a memo rescinding the Remain in Mexico program. And so just like DOCCA was the same concept where people said, hey, can't DOCA just be put in and taken out and the courts can't look at any of this. The courts decided they could look at the memo rescinding DOCCA and say that the memo

did not have sufficient justification. And so this is essentially exactly what's happening here is potentially the Supreme Court could get five votes, I'd imagine, will wait and see on whether this memo resending MPP had sufficient justification. The court affirmed the district court judges ruling. There was a thirty four page opinion, not affirming necessarily on the merits, but denying the stay. And so when you deny the stay,

you do take a look at the merits. And the court thought that there was no factors that warranted a stay here because there was a likelihood that the government will succeed in the case. Because they went through all of those factors that the District Court went through and there was a unanimous three zero decision. They went through all of those factors and agreed with the District Court

that the government doesn't have sufficient detension resources. It's a question about the stats, but they you know, if you do look at the stats because of COVID, whether you attributed to COVID or not, the numbers were less in and so it's kind of a hard thing because then they say, well, in remain in Mexico was in effect and there was no crossings. You took it out and the crossings went up. Well, there's a lot of things that changed because of COVID, but they use that against it.

They found that the termination then of the MPP led to the surge they found to increase people being entering into the United States and school age children going into school and all of that stuff, and so all of these things went together to say that the purpose of the memo, which said that remain in Mexico didn't actually reduce unauthorized immigration, turns out to have been not true. So that's basically what they're resting their laurels on both

the District Court and the Court of Appeals. So now Justice Samuel Alito grants the government a stay until Tuesday, is it yes? So what the order of the Supreme Court says is at eleven fifty nine pm Tuesday night. So basically maybe Wednesday morning, you can say the full court will consider the application, but the responses do from the Texas and Missouri side five pm on Tuesday, and so then the decision, I guess will be made at eleven fifty nine, And so the question is will there

be I votes? I think the most interesting part of this case to me is the foreign policy aspect of this case, which is this is not just about the US and a memo at a policy about immigration enforcement. Remain in Mexico actually requires Mexico to cooperate. And so this is I think the issue that the courts on the lower end did not really take it to account, which is that Mexico says it's not going to cooperate

with remain in Mexico anymore. And so that's something that the Biden administration is siting, saying, well, what are we supposed to do with this injunction in Mexico doesn't cooperate anymore, to which the only answer really that the lower courts have is, well, Trump found the way to make them cooperate. So you're just accepting that they won't cooperate without actually trying, do you have a burden to at least try to get them to cooperate? And so I think this is

the most fascinating part of this case. Will the Supreme Court force the US government to try to force Mexico into accepting romaine in Mexico? Again? I mean that seems to me outside the bounds of what courts usually try to do with regard to intervening in foreign policy. But we'll see. How would courts possibly monitor what the Biden administration is doing with Mexico? How would they possibly monitor

how much pressure they're putting on Mexico. It seems almost ridiculous to try to force the Biden administration to restart a program that has been dormant for more than a year. Well, I think the only thing a court could do if the federal government came back and said, Mexico refuses to do m p P again, because here's the thing. Mexico has verdens to take back Mexican nationals, but they have no legal obligation to take back a non Mexican national

into Mexico, and so they refused to do it. The only thing a court could do, I suppose, is to just put in contempt government officials that they feel aren't trying hard enough. And I mean, is that really? Is a court prepared to do that? Actually start finding and throwing US government officials in jail who they feel have unsuccessfully persuaded Mexico to take back non Mexican nationals into Mexico.

That's what has to happen. And so it seems wow like that would be a very difficult bridge to cross. Ere So can we read anything from Justice Alito issuing this stay? I think when the Solicitor General asks for a stay of a immigration program that is always taken very seriously by the Supreme Court, and you'll always get a chance for nine justices to weigh in before a policy goes into effect where the federal government is telling

you that they on it to be stayed. So I don't read too much into that yet, especially because I think Alito will probably side with the Fifth Circuit. But the question is will there be five justices who will actually figure out a way to side with the federal government here? And I mean, I don't know. It will be very interesting to see what gets cobbled together in terms of a coalition if there are five. Obviously Justice Roberts would join, but I don't know between Gorsege, Coney, Barrett,

and Kavanaugh, which of those three would join. They would be very interesting to see which, if any of those

three would join. What do you think Roberts would join? Well, no, I'm saying if there's five that end up staying this decision, I would find it very hard for that five not to include Justice Roberts because Justice Roberts, at least on his part, has a track record signing onto the Arizona Versus United States decision, which talks about the federal government having discretion over who it the ports, who it doesn't the pore when it does, etcetera. And so he's at

least signed onto that. So he would definitely have to be one of the five if there are gonna be five, because if they lose him, there are not gonna be five votes. Then for paying this decision, Leon remind us about that case. In the Arizona versus US case, Arizona had a law that basically they wanted to have state law enforcement of immigration. Roberts ruled in favor of the

Obama administration and said that the Obama administration. He signed on to a decision from Justice Kennedy that said that the Obama administration had the authority to decide who who to the port and who not to the port, went to deport them and went not to deport them, etcetera, etcetera.

So that's in that decision. So my point being, I find it very hard to figure a scenario where just as Roberts ruled in favor of keeping the program, and yet there are two other conservative justices who have then uphold the stay. I I don't see that happening. How are the numbers at the border. Well, the numbers at the border, this is the problem, are the highest they've been in the last twenty years. Uh. When July ended,

we were talking about over two hundred thousand apprehensions. Now, again, the problem with statistics is you can start parsing them however you want. And so some people say, well, the reason there are so many apprehensions is because this kind of forty two is still in effect, which permits the Biden administration to push people immediately back into Mexico the second that they're apprehended. So what that creates is multiple

crossings by one human being. And so you know, people are having that debate how many of these are multiple crossings, how many of these are unique crossings, But in any case, there certainly is a high number of people crossing the border, so much so that the Biden administration is fighting in court for its ability to continue using the title forty two authority, saying that the conditions are so difficult on the border that they need to be able to continue

using it. Thanks Leon, that's Leon Fresco of hollanden Knight. The U. S Military report its biggest day of evacuation flights out of Afghanistan but the deadly violence that's blocked many desperate evacuees from entering Kabul's airport persists, and the Taliban has warned of consequences if the U S delays withdrawing all troops from Afghanistan passed the August thirty one deadline.

A group that includes veterans who served in Afghanistan has started a fundraising effort to support the evacuation of Afghans from a medical clinic that's been threatened by the Taliban, launching a go fund Me page for Operation We Care Global Afghan Evacuation. One of those leading the effort is Atturning Mario tel a Rico, a partner at Honigman, and he joins me now, so tell us what's happened and why you started this fundraising campaign. Thank you for the

opportunity to talk about this. This is very important to myself as well as my family, So my family members, in particular my aunt Annatlarrico, who is a veteran, opened a clinic in Afghanistan in Kabul just over nine years ago. A history of being in the country as a medic and a medical officer. As she retired as a major in the Army, but she saw the need for continued growth in the medical services in Afghanistan and is a

kind hearted person and dedicated to helping others. Founded this clinic along with help from other members of my family as well as other individuals. But we got word on Sunday when the Taliban entered the capital that a group of men had entered the clinic looking for information. This was coming from staff members of the clinic who sent us images as well as messages describing what was happening

on the ground. When they sent this information, we know quickly realized that what they were likely looking for with information and relating to the clink's efforts in helping the United States, but also information relating to the African nationals who worked at the clinics. And it's our belief and information that the information relating to our staff members was taken and now all of our friends and their families

aren't hiding in the capital. They have been sending us very agonizing messages explaining what's happening on the ground and including one of them as has been beaten by the Taliban and injured. Another one message just that deep scared for his life and that they're going to kill him if they find him, so right away, what our our interests was was to do everything that we could, So we mobilized the team of former veterans, former d o

D members or employees, and former Afghan refugees. We've been working around the clock since we got word that they rated the clinics and luckily we've been able to work in conjunction with other veterans, other or d D members and have created essentially a task force to evacuate our friends and other Taliban targeted Afghans. We have planes ready, we have resources ready, we have assets on the ground in Afghanistan, and we have plans for what will happen

to our friends after they leave the country. We we have host countries that are in Europe that are willing to take all of our friends and help them start a new life, a safe, protected life away from the Taliban. Since the US government is having trouble getting people to the airport, how can you get people out? So without getting into too much detail, for security purposes and the safety of our our assets in the country, you know,

we have creative solutions to help our people out. Obviously, we're doing everything we can to work in conjunction with all governments agencies as well as non government agencies to make sure that everyone is safe. But I don't want to touch too much on the the actual logistic given the security risks. But you are confident that you can get these people to safety. I am confident that we are doing everything we can to get them out as

safely as possible. Obviously, with the uncertainty of what's happening, it is very difficult to safe with any certainty that we can do everything with certainty and safety. But we

have very, very experienced people that are helping. What we really need, because this is a non government effort, is a private partnership of like minded people you know personally have raised several hundred thousand dollars to make this effort possible, and we're looking for more help though, because it is self funded, we're looking for people to help in any way that they can, including we've launched in conjunction directly with executives that go fund me go fund me page.

It's called the Operation We Care Global Afghan Evacuation. To date, since launching, we've raised around four hundred fifty thousand dollars. Our goal is to get north of that hopefully to or around two million to to be able to get all of our people out. That that's right now what the object dip is and we're running parallel paths to get people out on the ground and as well as trying to make sure that we can once they get into the airport to you know, properly escape safely. Are

you trying to do this before the August thirty first deadline? Absolutely, you know we're working around the clock and order to meet that deadline. You know, even if our president extends the deadline, our friends in in Afghanistan face more and more dangerous as everyday passes until we're able to get them out. And obviously this situation is deteriorating and from

reports on the ground, you know that's public. It is not a safe area to be in, and especially for those our friends in their family who are on the ground that they're very scared. We're very worried for them. So how many people are you trying to get out? Roughly so the clinic has roughly a hundred and thirty employees, but they have family members that obviously we are not going to leave behind. So there's several hundred at least with our group, and our broader group has other talibant

targeted to Afghans. So there there are several hundred people that we are trying to evacuate. So you said that you have other countries that they may go to do any of them have you know, special immigrant visas? So our family UM is working with so our friends in their families. Until recently, we're not eligible for the SIVING program.

That's why we're focusing upon this private partnership. They until recently, like I said, we're not eligible because I think it's because they were not directly working with the US government. I know recently that has expanded. So while some of them have been able to apply, it wasn't until recent and given kind of the decuration of the situation on the ground, you know, their their applications, if they were even able to apply in time, have you know, have

diminished in terms of priority. I think you know, there's not a lot that they can do I think at that point. So to do everything we can because they you know, we believe that they're being directly targeted and we know they're beeting targeted by salaband. So we're doing everything we came from a private partnership to get them out as quickly as possible. We need help. You're an attorney. Have you ever done anything where you encountered you know

the morass of problems you have here. Well, you know, as an attorney, we often deal with very complex, intense situations. I'm a corporate lawyer, so I do deal with very complicated situations, but nothing like this. You know, this is

people's lives are at risk. Especially these are people who friends and their families who, knowing full well the danger and potential consequences, sacrifice their own personal stafeties to provide essential medical services to the community, to Americans, to other allies of the United States. You know, we need to do everything we can to help them and get them

out as quickly as possible. And for anyone who's willing to help, you know the best way to help us directly in every dollar that goes to go fund me will be dedicated to helping our people escaped. It's amazing that people of stepping up to actually make a change in this world rather than just complaining about it. It's it's incredible. Thanks Mario. That's Mario Desco of Honigman and

the fundraising effort Operation we Care Global Afghan Evacuation. And that's it for this edition of the Bloomberg Wall Show. Remember you can always at 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. I'm June Brusso and you're listening to Bloomberg