This is Bloomberg Law with June Grosso from Bloomberg Radio.
They're calling it Operation Midway Blitz. President Donald Trump has started his immigration cracked down in Chicago, with agents flooding the city as it becomes the latest flashpoint in a national struggle over how far the federal government can push local authorities in sanctuary cities to cooperate with its immigration agenda.
Though the administration has said the operation will target the worst of the worst criminals who are not in the country legally, Illinois Governor J. B. Pritzker says the operation is making many law abiding immigrants, even those who are citizens, fearful.
They're afraid to go shopping, They're afraid to take their own children.
To school because they have mixed status households.
Immigration advocates say that ICE agents also appear to be stopping and arresting people on the street. So how will the Supreme Court's ruling this week that lifted the ban on ICE agents in LA stopping and detaining people solely based on their race, language, occupation, or location affect the
ICE operations in Chicago. My guest is Laura Muokerjee, a professor at Columbia Law School, and director of the school's immigrants Rights clinic, Laura, how do you think the Supreme Court's ruling this week will affect these immigration stops?
The Supreme Court issued a devastating opinion on Monday. It's first worth noting that the full Court issued a decision that was only one paragraph long, and it was accompanied by a concurring opinion by Justice Kavanaugh and a dissenting opinion that was joined by this three liberal progressive justices, Justice Mayor, Justice Kagan, and Justice Jackson. And the question in the case is whether a federal district court's decision
should stand. And the federal district court had found that raids were part of a pattern of conduct by the government that likely violated the Fourth Amendment. And the district court found that the government was stopping individuals based solely on four factors. They're apparent race or ethnicity, whether they spoke Spanish or English with an accent, the type of location where they were found, such as a car wash or a bus stop, and the type of job that
they appeared to work at. And the district court found that these four factors, taken alone, that's not sufficient to satisfy the Fourth amendments requirement of reasonable suspicion, and the District Court enjoined the federal government immigration officers from using those four factors alone in carrying out immigration enforcement. The Executive brand then appealed that case to the Ninth Circuit, and the Ninth Circuit said, while the case is pending,
we're going to let the lower court decision stand. And then the Executive Branch further appealed that to the US Supreme Court, and in monday's one paragraph decision, the Court said, we are vacating, we are ending the lower court decision. What this means in practice is that immigration officers, as well as other law enforcement officers now practically have an invitation to engage in racial profiling when they are carrying
out stops. As the concurrence by Justice Kavanaugh suggests, race ethnicity can now be used as a factor in establishing reasonable suspicion about whether or not a person is in the United States illegally without documentation.
Justice Kavanaugh really downplayed what these stops are like, saying, you know, it's typically brief. You can go free after you show you're a citizen or that you're here illegally. Does that comport with reality.
Justice.
Kavanagh's concurrence minimizes the violence that is used in these stops and minimizes the harm to individuals, families, and communities from racial profiling. One of the plaintiffs in this very case is Jason Gavidia, a Latino US citizen who was ordered to stop by masked agents and they asked him questions then used violence against him, even though he had repeated at least three times that he's an American citizen.
They took his phone, they pushed him up against the metal gated fence, They put his hands behind his back, they twisted his arms, and they never gave him his ID back. Another US citizen, Jorge Viramontes, was repeatedly questioned when he was at his place of work between June ninth and June nineteenth of this year. Every time he was asked if he was a US citizen, he had to show his ID. And the effect of this decision is that America has become a show me your papers
country for the overwhelming majority of people of color. While this decision specifically focuses on people who are Latino in LA, the implications of this decision invite racial profiling nationwide.
I said they were going to flood the zone. This gives them now the authority to go full speed ahead. What does that mean for cities like Los Angeles and Chicago.
With the passage of the so called Big Beautiful Bill, there are now billions more dollars allocated to ICE and immigration enforcement and immigration detention. What this opens up is the possibility for immigration officers and federal law enforcement officers on the streets of many major cities in the United States. Now. I hope we never get to that point, and we are seeing the people and elected officials of Chicago resisting there so that what happened in LA isn't replicated in Chicago.
And in terms of what happens next, it will be up to the American people and the extent to which we can resist the worst abuses of the executive brand.
So I know you represent some families that are in ICED attention. How difficult is it to represent someone who's being held by ICE?
It is extraordinarily difficult to represent people in ICE custody. Right now, the youngest person I'm representing in ICE custody is only two years old. Immigration detention centers are often located in areas that are hard to access in geographically remote areas of the country. For example, the Family Detention Center in Dilley, Texas is more than an hour outside of San Antonio, and it can be difficult to have
reliable access to your clients and to prepare court hearings. Increasingly, immigration court hearings for asylum seekers who are detained or being scheduled on a very fast turnaround time because the administration is trying to push forward deportations as quickly as possible without sufficient time and sufficient due process for many
immigrants to prepare. It's also very difficult for many immigrants to access counsel while they are in detention because it's so much harder to contact a lawyer and get someone to work with you while you're detained.
I mean, what's life like in an iced atention facility.
It's very difficult for many immigrants in immigration custody. Overwhelmingly, immigration detention centers are overcrowded and unsanitary. Often people don't have access to high quality or sufficient food. At the Family Detention Center in Dilly, children have submitted swarn testimony to federal court explaining that there is not adequate clean water putable water and that adults at times have pushed children out of the way in an effort to get
access to the water. There are questions about the quality of metaw care in immigration detention centers, and immigration detention is simply not an appropriate place for children who are seeking asylum. One of the cases I worked on the summer involved a six year old child with a leukemia diagnosis who was arrested when he and his family showed up to their immigration court hearing in LA and then
they were detained for over a month. During that time, I begged DHS to release the six year old boy and his family, and it took filing a federal habeas petition, so a petition in federal court for DHS to realize that this family should not be detained.
Aren't there special protections for children?
For decades, immigrant children has received protections under an agreement a settlement agreed known as the Flora's Settlement Agreement, which requires the federal government to provide basic minimum protections for children in federal care, both in terms of conditions of custody and prioritizing children for release. Because nearly everyone recognizes that children shouldn't be in federal immigration custody federal detention
centers for long periods of time. Very Unfortunately, the Trump administration has moved to terminate, meaning end, the protections in the Flora's Settlement Agreement, and if the Trump administration prevails in court, children in federal immigration custody will be left with virtually no means of protection.
As far as the asylum hearings themselves, are the standards what they should be, or are they imposing tougher standards for asylum?
Increasingly it's harder to win asylum in the US United States. In recent days, the Board of Immigration Appeals has issued multiple opinions that rescind protections for categories of asylum seekers, such as asylum seekers who've been persecuted based on their membership in a particular family or based on their gender and nationality, for example, for survivors of domestic violence. In addition, there have been myriad changes on the immigration judge bench.
Since January of twenty twenty five. It appears that more than one hundred immigration judges has been fired, and the Trump administration is trying to replace those seasoned immigration judges with judges from the military jag officers who Instead of being trained for months, which has historically been the standard for immigration judges, will receive two weeks of training before dealing with cases on a daily basis where people's lives
are literally at risk. These are life or death decisions for many of the individuals who appear before immigration court.
Laura, thanks so much for giving us a little bit of an inside look at iced attention. That's Professor Laura Mukherjee of Columbia Law School. Coming up next, the Supreme Court is taking on Trump's tariffs. This is bloomberg.
If you took away tariffs, we could end up being a third world country.
President Trump warned of dire consequences after the US Court of Appeals for the Federal Circuit ruled that he had exceeded his authority by invoking an emergency law to hit nations across the globe with steep tariffs. The administration rushed to the Supreme Court to appeal, asking for a quick resolution concerning his signature economic policy.
If that ruling everyone against US, I guess would have to give back hundreds of billions. We would have to give trillions and trillions of dollars back to countries that have been ripping us off for the last thirty five years, and I can't imagine it happening on a legal basis. They have no legal basis whatsoever. But on a common sense basis, it would destroy America.
The Supreme Court accommodated Trump, as the conservative majority has in almost all of the emergency cases filed since January. It's set a lightning fast timetable by the Court standards with arguments in November. The appeal will test the conservative controlled court. It will be the first time during Trump's second term that the justices will actually hear arguments, get full briefings, and then weigh the underlying legal merits of
an administration policy. Joining me is David Townshend, a partner in Dorsey and Whitney's international trade group. Dave, the Court has set an unusually aggressive schedule for the court. When do you think we'll get a decision?
Hard to know. The Supreme Court, you can move at its own case. The schedule that was agreed to had been proposed by the United States and its appeal from the Federal Circuit decision, and was not opposed and actually supported by the plaintiffs in the case. Who are US importers and alleged that the tariffs are unlawful in terms of schedule. I suppose because they did establish expedited briefing.
We have the hearing in November. If the Supreme Court wanted to move very quickly, it could issue something before the end of the year. It's also possible that this will go well into twenty twenty six before we actually have an opinion.
The Federal Circuit ruled seven to four that AIPA, the International Emergency Economic Powers Act, doesn't authorize the these tariffs. Explain how the Federal Circuit came to that conclusion.
Yeah, the Federal Circuit had said that the case is really a statutory interpretation case, at least in terms of the opinion issued by the Federal Circuit. Federal Circuit was looking at whether the International Emergency Economic Powers Actor AIPA authorizes the teriffs that the Trump administration has imposed on global sources, including for trade deficits as well as fentanyl related tariffs under a EPA, and the Federal Circuit said that it didn't think AEPA did authorize the teriffs that
the Trump administration imposed and held them all awful. The Federal story it looked to a couple different sources to support its conclusion. There's quite a bit of discussion in the opinion about other areas of US trade law, areas where Congress had used words explicitly allowing the imposition or adjustment of tariffs or duties. When the Federal cirgut noted that AEPA doesn't use the word duties or tariffs in it it allows the regulation of importation into the United States.
But in light of the absence of the words tariffs or duties, but all sergu found that they did not think Congress intended that AEPA allowed the imposition of global tariffs in the way the Trump administration had done. They also pointed out that as a constitutional matter, the power to impose duties under Article one resides with Congress, and they use that as a way to interpret AEPA as
inconsistent with what the Trump administration had done. And they also noted that no prior president had used AIPA to impose tariffs.
So it sounds like the majority sort of took the safe route, the conservative route in their analysis, although there were dissenting judges.
Yeah, I mean, the federal circuit fractured seven to four. As you said, there were some of the judges on the Federal Circuit who said that ap but never allows tariffs. The majority opinion didn't quite go that far, and then the descent said that they do think AIPA is intended to allow the president to impose the kind of tarifs and adjust the tariffs in the way the Trump administration has.
I mean, I think that the majority opinion really sticks to this as a statutory interpretation question at its core, rather than looking to the constitutional issues such as a non delegation doctrine that decide the case.
What's the key argument that the Trump administration is making here? Does it focus on that provision in AEPA that says that the president can regulate the importation of property to address an emergency?
Yeah? Right. The AYEPA text allows the president to take action to regulate the importation of items into the United States. And the Trump administration's core argument is that the power to regulate encompasses the power to impose taxes and duties such as they've done here. And as support for that, they note that the AEPA statute itself allows a variety of actions. It allows broad discretion to the president to prohibit importation of items into the United States. It allows
the president to prohibit transactions with certain countries. There are certain persons in non US locations, and so if it allows the prohibition of transactions or the prohibition of imports, and also allows the regulation of imports, then, according to the Trump administration, follows that they can impose taxes or duties or something short of such prohibitions, including the terrorf regime that the Trump administration is currently administering under AEPA
and using as a basis to negotiate trade agreements with other countries.
Of course, no one knows how the Supreme Court will rule, but Bloomberg Intelligence has determined there is a sixty percent chance that the justices will agree that the reciprocal tariffs are illegal because the trade deficit isn't an emergency. But we'll find that the fentanyl tariffs are lawful and reinstate them.
What do you think, Yeah, it's possible that the Supreme Court could do something like that, And certainly the ultimate outcome in terms of what the Supreme Court issues as any remedy should it find the IPA terrifs or unlawful, is wide open and difficult to predict. I think that the initial statutory question, does AEPA allow the imposition of tariffs is one question, and the Supreme Court could say
something like, yes, we think APA can permit tariffs. And in fact, there's a lengthy discussion in the Federal Circuit opinion about a prior court case called Yoshida, where an appellate court had looked at exactly that issue under the APA predecessor statute called the Trading with the Enemy Act.
So there's the question, does APO out tariffs? They could answer that yes, it does, but they could also say something to the effect of the executive orders issued here in some manner go beyond what we think AYIPA was intended to permit, especially if the Supreme Court thinks that's wide open into discretionary and how the administration is adjusting
the tariffs. I'm not sure I would say that I think that outcome is likely, but it does show you that there are various steps of the analysis that the Supreme Court could use to ultimately reach the outcoming conclusion in the case.
No present before has tried to use AIPA to impose tariffs, but has the Court addressed anything similar in the past.
Yeah, the Supreme Court has looked at AIPA before. For example, there was a prior case involved the Iranian hostages that were taken during the Iranian Revolution. The United States citizens who were held hostage in Iran, and the President had used AIPA as a basis to negotiate a process for the hostages to be released, but also for the resolution of claims against Iran that arose out of the revolution,
where's people's property had been seized or taken. And so the Supreme Court was forced in that case to look at whether AEPA allowed the president to essentially nullify court cases that were ongoing and property that had been sees pursued to those court cases. And in that case, the Supreme Court said that AIPA is a broad grant of power. It is designed to allow the president to negotiate and thus would allow the president to freeze or exterminate claims
in US courts relating to the Iranian Revolution. I mean, you know, whether that has a bearing on the issue before the Court now relating to tariffs and the Trump administration executive order is sort of unclear. It's it's not hard to distinguish between the situation the Supreme Court looked at there and the one before the Court today.
Could the Major Questions doctrine come into play because that stopped Biden from his student loan program.
The Federal Circuit said, yes, that the Major Questions doctrine is relevant here. They noted the vast what they called economics and political significance of the case, and the Federal Circuit found that countfuls for a narrower view of what Congress intended in enacting AEPA, especially given that the President had never previously used AIPA as a basis for the imposition of tariff. Whether that is the path that the Supreme Court ultimately uses to resolve the case very difficult
to predict. And at the Federal turget it did not think the Major Questions doctrine prohibited the executive orders and the imposition of tariffs here, both the reciprocal and the fentanyl related tariffs. So you know, you can dig both sides. Whether the Supreme Court will be persuaded that that doctrine applies is unclear.
Coming up next on the Bloomberg Law Show, I'll continue this conversation with Dave Townsend. How is all this uncertainty about the tariffs affecting companies? I'm June Grasso, and you're listening to Bloomberg.
But some whack job put in a lawsuit. It went before a very liberal court, and the liberal court ruled who was eleven? They ruled seven to four, with one of the most liberal of them all voting in our favor. Because they're patriots. I think I give tremendous credit to that judge. And now it's going to the Supreme Court. We're going to be asking for early admittance. But some whack job put in a lawsuit. It went before a very liberal court, and the liberal court ruled was eleven.
They've ruled seven to four, with one of the most liberal of them all voting in our favor because they're patriots. I think I give tremendous credit to that judge. And now it's going to the Supreme Court.
The Supreme Court has agreed to take up an appeal from the Trump administration after lower courts found most of his tariffs illegal. The case involves two sets of import taxes, both of which Trump justified by declaring a national emergency. The challenged taxes include Trump's April second Liberation Day tariffs, which impose levies of ten to fifty percent on most US imports, depending on the country they come from, and also tariff's Trump imposed on Canada, Mexico, and China in
the name of addressing fentanyl trafficking. The cases were brought by Democratic led states and a group of small businesses. The US Court of Appeals for the Federal Circuit ruled that Trump exceeded his authority by invoking an emergency law AIPA to hit nations across the globe with steep tariffs, upholding an earlier ruling by the Court of International Trade. I've been talking to Dave Townshend of Dorsey and Whitney. Dave, let's say that the Supreme Court rules against the tariffs
across the board. I mean, what happens then the government has to refund money? How would it work?
There are several different avenues of relief that could come out of the Supreme Court case here, and obviously we don't know until the Supreme Court actually rules on it. The Court of International Trade, the lower court at originally issued relief at the all importers that had said if it's illegal, as to the plaintiffs, that's the illegal as to all and if directed the government to cease collecting
the reciprocal and sentinel related tariff under APA. The Federal Circuit stepped in and paused the effect of that part of this cit ruling, and in its August twenty ninth rolling, the Federal Circuit agreed largely with the Court of International Trade out of the outcome of the case, that is, the IPA terriffs were held unlawful, but it again stayed its decision and impact pending appeals at the Supreme Court.
So that's just a long way of saying the original look at this from the Court of International Trades that the relief should apply to everybody, should apply to all importers. The Federal Circuit did note that this Court of International Trades failed to look at whether such a nationwide remedy was appropriate in light of a Supreme Court case recently issued.
That case was dealing with birthright citizenship. So the Federal Circuit was saying to the Court of International Trade, you have to look at this intervening case to see whether it would be appropriate for a nationwide revenue. There are under trade other avenues for relief here for companies looking to recoup the revenue. One would be to bring their
own court case. Another would be to pursue protests against the US Customs in due course as the import entries go through the normal process of review, liquidation, and finalization by US Customs. So we don't know. I mean, I think ultimately there could be an administrative process established here if there were a ruling against the United States that would allow importers to come back and prove they were
owed money. It's also possible that there won't be a process and that companies will just be forced to go through the usual court or administrative processes.
Does the Supreme Court consider on any level the difficult process of unwinding the tariffs?
Yeah, I think the Supreme Court has in other circumstances that you know, it's concerned about accepting arguments in favor of plaintiffs that would cause a painful unwinding process for the US government. Whether that has much, if any of
an impact here is hard to say. I think that you know, from my perspective as an attorney who who advises US importers and is familiar with the importation process, there is an automated process by which these AEPA teriffs are imposed, and that automated process creates the data the government needs to identify and refund the tariffs. So I'm not ultimately convinced that the process of refunding the tariffs would just be so hopelessly complicated that the government couldn't
do it. And I'll just give you one example of why that is, the government in the ordinary course does not liquidate import entries for roughly ten months until the data endoration, and so you can go all the way back to import entries in April when the reciprocal tariffs are originally imposed, and those entries are not yet finalized
by customs. So there is sort of a way for the government to easily track and then refund the duties if they had to, although the scale of it would be massive, obviously.
And so as far as you know businesses or importers that you represent, what does this period of uncertainty until the Supreme Court rules, what does it do to them?
In the meantime, everyone's paying the tariffs, and so I think companies are still trying to assess what the likelihood is that there could be refunds here I can tell you that companies, and we've seen this in the news and listeners have probably seen it in retail stores where prices have gone up in certain cases, or contracts have been revised in a way to permit companies to raise prices as a result of the tariffs, and all of that would all of a sudden be called into question
if the Supreme Court ultimately ruled that the tariffs were illegal. Though, whether there would be a rollback or reductions of price as a result of the case and or because of refunds received by importers. I think that would be different
potentially in different industries and in different market situations. But you know, I can tell you that there have already been adjustments, and so how quickly things would snap back that would be something that businesses would have to I think consider on a case by case basis.
Is there anything else that businesses are considering in light of these tariffs.
Well, I think the way the tariffs were imposed, companies could see them coming. They built up inventories in the first quarter of the year. Those inventories that most been drawn down in such a way that now they're having and have been recently having to make tough decisions on
the pricing and whether they're passing on the terraffs. You know, in terms of looking forward, I think companies are balancing whether to wait and see whether the terrorifts are ultimately upheld or whether they just take the action they feel that it is appropriate.
Now.
I mean, I would say this about what the ultimate impact of the Supreme Court case is. If they were to find that the tariffs were unlawful and strike them down. The Trump administration isn't just going to give up. There will be a second, you know, a plan B so to speak, that probably is already prepared that would be imposed very quickly, is what I suspect. And so it's not as though if the Supreme Court issues are ruling against the United States, it's not as though the teriffts
will just be gone. There will be something coming down the pipeline, probably fairly quickly to impose something similar.
Yeah, Administration officials have basically downplayed the impact of the litigation and said that most of the terriffs can be imposed by other legal avenues. I mean, what would that be and why didn't they use it in the first place.
I think the administration chose to use IEPA because it was they knew they could do it quickly and immediately, and they wanted to begin the process of negotiating trade agreements as fast as possible because it's a lengthy process to negotiate trade agreements. There are a variety of other legal authorities the administration could use if they needed to replace the IEPA TIFFs. I would expect a combination of
authorities would be used. Something immediate that allows them to impose tariffs right away, coupled with some combination of Section two thirty two, which is national security related tariffs and three oh one, what's their teriffs to address on SAT trading practices like the kind of Trump administration imposed on China in twenty eighteen, And so they would be able to cobble together something that looks at least somewhat similar to the current regime in terms of the ultimate impact
and the ultimate size of the tariffs.
If these tariffs are upheld, how much of a victory would that be for Trump and how much would it bolster presidential power?
It would be significant, no doubt, because what that would do in the most immediate terms, Obviously, the executive orders
would remain the IPA teriffs would remain. I think the Trump administration would be likely to view that as a signal that they can use their AEPA authority to adjust up or down as they see fit the tariff rates for countries, and they would be emboldened to continue the course of potentially raising tariffs on countries that take actions they don't like and lowering them for countries that agree to, you know, whatever trade concessions they're hoping to get out
of those countries. So I think that process would just continue and it would be fully legal looking forward.
Thanks for joining me, Dave. That's David Townsend, a partner in Dorsey and Whitney's International Trade Group. 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 Jim Grosso, and you're listening to Bloomberg