This is Bloomberg Law, with June Grossel from Bloomberg Radio.
We know that this is simply un American, but as enraging as the news is for Minny Angelinos and people across the country, let me make this very clear for the press and to our country that we will not allow the Supreme Court or anyone to divide us.
Los Angeles Mayor Karen Bass slammed the Supreme Court's emergency ruling on Monday that lifted a federal judge's order that barred ice agents from stomping people solely on the basis of their race, language, job, or location. The ruling was six to three down ideological lines, and the conservative majority didn't provide an explanation for their decision, but immigration advocates say it means the court has basically legalized racial profiling.
Emigration agents are now being given the power to profile, stop, detain, and arrest people because of the color of their skin, the language they speak, or the work that they do.
We should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job, wrote Justice to the mayor.
Justice Sonya Sotomayor wrote a blistering descent for the Court's liberals, writing that she would not stand idly by while our constitutional freedoms are lost and pointing out that the reasoning behind the Court's entirely unexplained order is anyone's guests. My guest is David Harris, a professor at the University of Pittsburgh Law School and an expert in racial profiling. David, under the Fourth Amendment, when can law enforcement agents stop someone?
People can be stopped by the police under the Fourth Amendment when there is reasonable suspicion that a crime is afoot and they may be involved in the crime, and reasonable suspicion is less than probable cause, but it is based on facts and reasons. Now, when we transition from detecting crime to looking at immigration issues, the standard is still reasonable suspicion. There must be facts and there must
be proper inferences. But what we're looking for, of course, is whether a person is in immigration status or not. And you're still looking at reasonable suspicion. So what would those factors be for immigration? The standard is the same. You just have to reference facts.
What exactly did the Supreme Court do in its decision on Monday.
Well, what they did was to stop the decision of the lower court stay it. The lower court in Los Angeles had decided that ICE and its law enforcement allies were using factors to stop people that inevitably led to
unconstitutional stops. And the lower court had said, you may not use, either alone or in combination, the factors of somebody's Hispanic or Latino appearance, speaking Spanish or having an accent to speak Spanish appearance, that you are engaged in low wage work and being at a location associated with day labor. And the Court said, you can't do this anymore because I can see from the evidence that I took. The judge said that this is being done in ways
that violate the Constitution. And what the Supreme Court did on its emergency docket was to say, no, no, this order will not go into effect. We're holding it for now until we have more time to look at it.
And Justice Kavanaugh wrote an opinion that is not a full opinion, it is not for the court, saying that he believed that the administration of Trump and his allies who want to be able to use those factors will succeed when they get to a full hearing that they'll win, and therefore Ice and the police allies can go back to using those factors when they stop people to see
if they are in violation of the immigration laws. And this called forth some opinions from the other justices, notably Justice Sonia Sotomayer, who said that this was going to lead us in the wrong direction. You'd have people being stopped just for their Hispanic appearance, just for speaking Spanish.
So is what the courts do. Though the court conveniently, as you mentioned, did not issue a majority opinion, so we don't know why they said this. But are they basically saying, well, racial profiling's okay.
Then what they're doing is they're looking back and this is the best we can tell. We're not really sure because, like you said, there is no opinion, there's been no briefing on this, there's been no argument, there's no full opinion, so we're having to speculate to some extent. But what they seem to be saying, based on the fact that they stopped the lower court's ruling, which would have put a stop to all of this, and Justice Kavanaugh's opinion
for himself is it's okay. To use some combination of those four factors, ethnic appearance, Spanish speaking or accent, appearance of being a low wage worker in these particular locations. Now, Kavanaugh was clear on saying, you can't just say, well, this person looks Mexican and that's enough. That wouldn't be alone by itself. But it's a very slippery slope down to exactly that point. Our experience with this sort of
thing goes back many years now. I've been studying racial and ethnic profiling for well over thirty years, and we've seen it. We've seen exactly this kind of thing before. We saw it when Arizona enacted they show your paper statue back in about two thousand and eight or so, and Sheriff Joe Arpaio went to town on that and it was just picking up people because of how they looked and their Spanish speaking or their accent. And that
is racial profiling by any other name. I mean, we don't want to call it that, fine, but that's what happened. Law enforcement begins to lean on the most obvious factors, and that's what the judge saw in Los Angeles, and that's why the judge stopped them from doing this in the first place. So all of this will move immigration enforcement efforts right up to that very same line, and we will have people getting picked up just for how
they look, weather they're Spanish speaking. It's going to happen as night follows day.
And I mean, the only way you'll get to see what the officers relied on is if a case is brought right.
Exactly, and there will be some cases broad chances there, because one of the other effects of this is going to be that lots of people will be interrogated and even picked up and arrested who are in good order as far as immigration law. That's another thing that we see.
Whenever there is widespread sort of dragnet pulling people in on these very basic factors, they end up making mistakes law enforcement folks do when they're allowed to lean on those kind of factors, and we will get a few people who end up in custody, maybe for a few days, maybe for a long time, maybe even getting deported before it can be reversed and they can bring a case. Justice Kavanaugh says in his opinion, well, look, if everything's
in order, they'll just let you go. And he says it's an important problem in Los Angeles, because there's an estimate of stake two million people who are undocumented in Los Angeles. But what he does say is that there are millions more who share those characteristics, who have ethnic features of people from Latin America, who speak Spanish, who have a Spanish accent, and they're going to be swept up in this too, and that's where the cases will probably come from.
Just as Kavanaugh said, as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are US citizens or otherwise legally in the United States.
He doesn't mention that one of the plaintiffs here, Jason Brian Gavidia, who's an American citizen, was stopped by immigration agents, shoved into a metal fence and his arm was twisted behind his back, all the while that he's shouting, I'm American, I was born in East LA And there's video of it that anyone can see on the internet.
Look literally based off with skin color.
Gavidia says that he was frightened and the agents took his phone and ID. He was released, but he never did get his ID card back.
Yeah, I mean this is going to happen. This is going to happen more now that everybody can see, including the ICE agents and the police are helping them, that they've been given the green light. So we will have that happen. It's a certainty. And for Justice Cavanaugh to say, hey, it's all fine as long as you carrying your papers with it, well, I mean, do you carry your birth certificate to work? I mean does everybody do that? And even if you do, you might not get those things back.
You can be in big trouble even if you have crushed every t and dited every eye and you were born here. So I just really took offense at that. I think it's somebody who never has to confront these problems making a pronouncement he knows nothing about.
So Justice Sodomayo wrote a stinging descent quote, we should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. She quoted a nineteen seventy five case that said it was unconstitutional for the border patrol to stop a car and question its occupants when the only ground for suspicion was that they appeared to be of Mexican ancestry. Does this shadow docket decision contradict that decision or is it broader.
It's a little broader, But again we're less to speculate because it's just on the shadow docket and there's been no full opinion. There was no briefing for the court, there was no argument. But that's a live question.
For sure.
There is an older case that says things like that you have to go beyond just ethnic appearance, but certainly it does also say that same case, ethnic appearance counts. And my experience, in the experience of those who study this as I have, is that when that's a factor that is relied on, even with others in the mix, law enforcement leans heavily on. It discounts the other factors that may go in the other direction, and you get
mistakes and the enforcement itself becomes less efficient. But more than that, people who are in good order will have this imposed on them, and it'll be up to them to prove no, no, I'm here legally, I was born here, whatever it is. Instead of the other way around.
Coming up is Chicago. Next, this is Bloomberg. I've been talking to Professor David Harris of the University of Pittsburgh Law School about the Supreme Court in a six to three decision and lifting a restraining order from a judge who found that roving patrols were conducting indiscriminate stomps in and around LA. The order had barred immigration agents from stomping people solely based on their race, language, job, or location. So Ice has promised in an online post to quote
continue to flood the zone in Los Angeles. So they seem to be taking this as an okay from the Supreme Court.
Absolutely, it's the green light. They can all see it. Everybody can read it. And when they say flood the zone, they mean lots and lots of people from our force will be out there doing this. And you know, like I said before, this is just so unfortunate because when we pour people into a problem like this and we give them, give them the green light and the thumbs up, we know that some people are going to be impacted negatively who have done nothing wrong and shouldn't have to
be imposed upon. And long range, what you care about is public safety. If that's on your agenda, you are doing the wrong thing. You're cutting off your nose despite your face. Because public safety depends on public support. You need the public to give the police information about what's
what in the neighborhoods. If this is happening not just to people who might be deported legitimately, let's say, but to other members of their family who are here legally, to people who are just in the neighborhood and who have been born here because they look a certain way. That is going to alienate people, not just from ice but from police generally. And that is a terrible message to send out, and it makes them less likely to cooperate with any policing of any type, and that will
leave predators on our streets. So this immigration policy of flooding the zone with forces with these low accuracy factors, this is going to make it more dangerous for us just on the level of regular crime.
The way they're stopping based on these factors, I mean, is that proving to be a good way to find people who are here illegally. Are they making a lot of arrest because of that?
Undoubtedly they are making some arrest of people who are deportable. There's no doubt about that. It works. Sometimes the question is isn't there a better way that doesn't also sweep in lots of people who have nothing to do with this, who are not part of whatever you consider the immigration problem. If you simply rely on this sort of blunt instrument, you're going to be doing damage along with whatever you see as moving toward your goals. So it will work,
There's no question that sometimes it will work. Can I give you a number? No? Is it nine out of ten times? Is it one out of two times? Nobody knows? And this stuff isn't being tracked. But when you lean on ethnic or racial appearance even as one factor along, the data for years and years has been clear that this kind of approach is far less accurate than others you might use, and it alienates the public that you really need to support you.
Yeah, I was reading that in some neighborhoods in Los Angeles, when they see those vans with tinted windows, the neighbors who are here legally go out and warn people.
And absolutely, and we can't be surprised by that given what we've seen, given the way that force has been used on people, and that has been sort of publicized, pushed out. Look, this is a good thing. Is it surprising? Not at all? People have been put in fear by this, and quite deliberately put in fear. So you can't be shocked when members of the public turn around and say, this isn't the kind of thing I want going on, and they start warning people. You know, they're not on
the enforcement team, they're on the non enforcement team. Think of it like.
That immigration advocates say and fear that this is going to open the door to racial profiling of Hispanic people across the United States. Do you think now that the Supreme Court has said this is okay in Los Angeles, it'll be okay in Chicago or New York or other cities.
Well, again, we're left without full knowledge of what the Supreme Court has done or will do, because they have made this statement, put out this stay of the lower court's order, and then you have Justice Kavanaugh's opinion, which doesn't represent the whole court. We don't know how far they will go or what they will say in the end.
But people who know just the headline, if they're in the enforcement business, that's how they're going to take it Supreme Court says it's okay to use racial or ethnic appearance. They're not even going to make the distinction that Justice Kavanaugh does, which is that wouldn't be enough by itself. They're going to take it as racial profiling is okay. And if it's okay in LA, why wouldn't it be okay in Chicago or New York. So this has the potential to do a lot of damage in ways that
we would probably want to avoid. But with this decision, the way it's come out and the insufficient explanation, I think there's no avoiding it.
And just as so Demayor pointed out that there's no way of knowing what the reasoning of the Court was. That it's anybody's guess what they based this on. I mean, is it possible that they didn't base it on what Kavanaugh says?
No, he's probably got most of it in the sense that there is a legitimate legal issue about issuing an injunction under the current standards of the court to stop activity like this, and there's a legitimate legal issue about whether you can have ethnic or racial appearance being a factor. And he suggests that he thinks the law is clear on that, and that's going to be debated if there's ever a full argument and a full briefing of this for the court, and we'll see where the court comes out.
But if he's an indication, that's how many of the justices on the right we'll see it.
The judge below made some specific findings. Now the case is going to go forward. I mean, is there any chance that there'll be some different kind of findings that will change the Supreme Court's mind? It seemed like the court below is pretty thorough.
It was, and no matter what the Supreme Court does, let's say that they follow what we have on the books now, which leaves us guessing with a full opinion that basically follows up and down with what Justice Kavanas said. If that's the case, you will have lower courts still confronted with lawsuits by people who are citizens or legal permanent presidents. You will have lower courts receiving information about
what ice is done. Have they only relied, for instance, on racial appearance, ethnic appearance without considering other factors, and cases will continue to come. What tells me that is prior experience when this kind of an order comes out. Hey, let's flood the zone. Let's get in there, let's get everybody, vacuum them up. Mistakes are going to be made, and those will end up in a record, and a lower court will walk along the lines dictated by the Supreme
Court whatever it decides. But I don't think these cases will stop coming, just given the volume of activity and the way the people from ICE are being urged to proceed by those in charge.
There's a preliminary injunction hearing schedule for September twenty fourth, But in light of this Supreme Court decision, can a judge is your preliminary injunction at this point?
And whatever it was that the lower court did is stayed, So proceedings will not go forward on that level until there's clarity.
And when will their reclarity?
Your guess is as good as mine. I don't think anybody knows. And the more of these emergency shadow docket cases we get with the half opinions that aren't supposed to be precedents, but then Justice Gorsuch tells us no, the lower court should be looking at them as authoritative. In the National Student Health case, I mean, confusion is
really sprouting here. It's really really hard for lower courts and for anybody to know what's happening when and when we might have some real clarity on any of these issues.
Yes, Justice gor such did not like that in the space of a few weeks, all these different courts were not following the Supreme Court's obvious guidance.
Yeah, that's right. And yet that quote obvious guidance is coming in a form which has always been regarded as without presidential value. So for him to say that, I really think was just out of line. The lower Court in that instance apologized that he did not mean to ignore them. But what are you supposed to do? I mean, I wouldn't want that job right now of trying to figure out what the Supreme Court is telling me to do.
And now, apparently in Chicago, local activists said that, you know, ICE agents had been targeted in their tactics presenting warrants at specific homes or detaining people an immigration court. But now they're stopping people on the streets in what seems to be a fairly random fashion. So it seems to be copying what they did in La.
Well, exactly random stops, that kind of roving, random stops, that's exactly what the lower court judge had in mind. Those don't have to be unconstitutional in the legal sense, but they lead to that behavior. That's essentially what the judge in the Los Angeles case found. And you know, when you basically tell them it's all up to you. All you have to do is see somebody who looks hispanic and is dressed for low wage work. You know
they're just going to go to town with that. You know they're going to follow the direction that the Supreme Court has pointed them. So I hope nobody is surprised to see that.
So, David, how big a win is this for the Trump administration.
Well, it's a win in the sense that a judge in Los Angeles on the ground ordered this activity stopped in the form that it was taking, and now the Supreme Court has said no, it can go forward. It's not a permanent win, even if we have good indications that this is the direction that the Supreme Court is going to go. But again, we're less in a little
confusion about that. What we do know is that now Ice and whatever law enforcement allies have signed up to help will go ahead and keep doing things the way they were in Los Angeles, with these kind of randomized activities sweeping in lots of people, some of whom are undocumented and some of whom are not. And I would predict, without knowing how people think in the White House, that they're going to applaud that and remind me.
What happened with the show me your papers in Arizona.
Yeah, what happened there is the law passed. It was a state law, and police started going with that, and Sheriff Joe, you know, chief among them, and it was pretty quickly found that he was using ethnic appearance, focusing on Latino people in ways that violated the Fourth Amendment and violated the Equal Protection claw. A judge ordered it stopped, and he went ahead and did it anyway, and he ended up in criminal contempt. That's why Trump eventually had to pardon him.
Now it's coming back to me. Thanks so much, David, It's always great to talk to you. That's Professor David Harris of the University of Pittsburgh School of Law. Coming up next on The Bloomberg Law Show. President Trump calls a birthday note he allegedly sent to Joffree Epstein a dead issue, but many Democrats and Republicans I'm June Grosso
and you're listening to Bloomberg. House Democrats on the committee that's looking into the Jeffrey Epstein case have released a photo they say is from a compilation of the fiftieth birthday messages for Epstein. It's allegedly written and signed by President Trump, something the White House has consistently denied. President
did not write this letter. He did not sign this letter, and that's why the President's external legal team is aggressively pursuing litigation against the Wall Street Journal and they will continue to The compilation, also known as the Birthday Book, is from two thousand and three. Trump has said in the past that he had a falling out with Epstein
in the mid two thousands. This comes as lawmakers on both sides of the isle are calling for the entirety of the files on Jeffrey Epstein's case to be released to the public. Joining me is Laura Davison, Washington Deputy Bureau Chief. You know, the talk today has been about this birthday card to Epstein, allegedly from Trump. Tell us how we got here? Yes.
So, this was something that The Wall Street Journal originally reported on over the summer back in July, and they, you know, referenced a birthday card where Trump was referring to a wonderful secret and it included sort of a suggestive drawing and was signed by the President to Jeffrey Epstein and given to him for his fiftieth birthday. At
the time, you know, Trump vehemently denied this. All know, He's team still denies that this is an authentic document that he that he sent, but we've never had the image of it. So what's happened over the past couple of months as the the Epstein story has really become a wedge issue for Republicans that you know, you have a group of Republicans including some you know, people who
have been known to be very staunch Trump allies. People are like Marjorie Taylor Green and James Comer at the Resite Committee in the House, they have been pushing to release more documents from Epstein's estate. This actually came to a head at the at the very end of July in the House, Mike Johnson sent his members home early because this is becoming such a hot button political issue. It did not die over the August recess, and as lawmakers have come back to Washington this week. They have
subpoenaed and then received documents from Epstein's estate. So this includes not only this birthday card that they released Democrats will not released the image of it, but it also include other papers from his estate, things like entries from his contact books spanning a couple of decades, and you know, information about his bank accounts, as well as his last will and testament. So there was a lot of papers
that have been released. You know, this has been the piece of information that has you know, certainly gotten the most buzz. You know, it was released yesterday afternoon and immediately, i mean Trump's team came out and said that, you know, it couldn't possible. They say that the signatures don't match. You know, Trump has said that he doesn't draw, and so therefore this couldn't be, you know, something he would
have created. I'll note that there are several other drawings out there in the public domain that he's donated to various groups. But this has been you know, a sort of Trump Denny Deny strategy is clearly what his team is employing here.
And he said today that this is a dead issue. What makes him think that it doesn't.
Seem dead it's certainly not a dead issue if you ask both Democrats as well as Republicans on the hill and also you know, out on you know, kind of among his base. This is something that has also animated a lot of voters as well. But this is something that that Trump wants.
To go away.
And so by branding it a dead issue, he is, you know, signaling that he does not want to talk about this. But of course this because he continues to be a political issue that is dogging him and splitting the Republican Party.
I know, I had to look twice or three times when I saw the picture of Marjorie Taylor Green being hugged by Rocanna. So, I mean that goes to the fact that there are Republicans pushing for the release of the Epstein, all the Epstein documents.
Reck.
Yes, I mean, so Marjorie Taylor Green, you know, who is you know, among one of the most vocal and conservative voices in the House of Representatives, has joined forces with Rocanna, who is a Democrat from California, you know, someone who's also thought to sort of be a rising star within the Democratic Party, you know, seeking higher office and higher ambitions. They have joined together in this effort
to get the people Epstein abused to come forward. Marjorie Taylor Green has said she would come forward and you know, release more information on the House floor. This is a very unlikely duo and on perhaps any other issue they
would not agree. But this just shows that one, this is something that is really ignited a fire among some Republicans, and you know, has also been an issue for Democrats, you know, cynically, you know, some Republicans are saying Democrats are just using this as a way to embarrass the president or as a way to you know, kind of further sew division among the Republican party. But there's no denying that this has become a political issue, whether or not Trump wants it to be.
Explain what's happening with this discharge petition.
So essentially what Thomas Massey, again a Republican who has actually had sort of his own uh splits with Trump on on other issues relating tax policy and and government spending, they had been pushing for this discharge position petition, which is essentially a way to force a vote on the House floor. Generally, it is the majority party, you have the speaker and the majority leader who's determining what things
come up for a vote. But there is a way that if you get enough support from from fellow UH House members, that you can force an issue up.
For a vote.
They have so far not gotten enough support to make this happen, but if they could, they could, you know, one put some Republicans in a very tricky situation where they may you know, politically, uh, you know, sort of be of two minds of whether they should break with Trump and vote to release more of these Epstein documents or uh, if they side with Trump, with the potent actually you know, anger their own voters by you know, sort of asking to quell some of these documents from being released.
They have something like more than thirty thousand documents. How many more are there?
You know, I don't know the total number of documents that exist, though the House Republicans, you know, they started releasing these as they've been getting them. There's more to come, and they you know, a lot of what has been out there at least and last week that they started
releasing was already in the public domain or was heavily redacted. Essentially, they want, you know, sort of the full bounty of documents released without reactions so they can finally, you know, they say, if they have these kind of get to the bottom of you know, who Jeffrey Epstein was in contact and who else might have been implicated, you know, in you know, his activities with the underage girls.
So when does this end? I just I see no end in sight here.
What is really difficult here is that, you know, Republicans, at least before Trump was in office, really primed their base their supporters that there would be some sort of smoking gun, some answer just as long as they could get their hands on these documents, that there was a
client list. Pam Bondi said out there that she would be releasing what is you know, frequently the case in some of these very messy situations where you have, you know, you know, someone who is now deceased and you're trying to piece together a very complicated and you know, perhaps sordid affair is that there aren't solid and specific answers
that you can get posthumously. So as long as both Republicans and Democrats continue to be this drum, it will be an issue whether this continues to be an issue into the midterms or in twenty twenty eighties that's a very long way away. Hard to know if that will continue to be out there, but it's clear that there's probably not going to be some very decisive answer that's just going to pop up in a document that will put this matter to rest.
Thanks so much, Laura. That's Washington Deputy Bureau Chief Flora Davison, 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 PODCA. 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