Trump Demands End to Due Process for Illegal Immigrants

critics are calling for due process for detainees. Democratic Senator Elizabeth Warren spoke to reporters after visiting detainees at our border control center in McAllen, Texas. When a woman comes here with her four year old son and says, I am asking for amnesty. I have been threatened by gangs in my home country, we should at least give her

a hearing. Joining me as Rick, super professor at Syrah Ques University and an expert in immigration law, Rick, under US law and the international treaties that we are Party two, can Trump just turn away immigrants at the border without a hearing of any kind? Uh? Not if they're making a credible claim for asylum. Um and many of these Central Americans who are coming are in fact here to make that particular claim under those obligations, they deserve at

least the pre screening kind of the past. That hearing on their particular claim tell us about due process and whether due process applies to immigrants. So this is actually quite interesting. Uh, it's a topic that's been debated a lot, but there actually is already a process by which Congress has authorized the presidents to remove individuals without having to go through a judge or hearing. That's assuming that there isn't an asylum claim, and in fact that's been used since. Um.

The irony of his statement. Trump's statement is actually the reason why there is so much more hearings than judges now, is the because of the zero tolerance policy. Is because he said that he wants to criminally prosecute everyone that comes other than just to remove them. Uh. So it's not clear what if he really is just interested in removal,

then zero tolerance seems to go against that. If he wants to criminally prosecute other than remove them, give them prison time, that's why we're talking about judges and hearings. Can he do that by executive order or does he need Congress to act. So Congress right now already has something called exbsity removal, and that was passing that allows him, under certain circumstances to remove individuals without being subject to

a hearing or appearance before a judge. Um. Now, if they were to remove them, that wouldn't be criminal prosecution. There'd be no prison time there. Um. And in fact, that's been used for quite a while. There are some people who say that itself maybe a due process violation, but no court is sound that to be the case. Um. If there wasn't a final came made, however, then Congress would have to change that. Uh. And actually it's not

clear they could either because of our international obligations. But in some way is what he's complaining about is again something of his own making. It's a zero tolerance policy that is coming against his use of explod removal, which is just for removal, not for prosecution. People who are following this are often hearing one case name the Flores consent decree. Tell us about that and what that requires. So the Floora's consent degree essentially is about the treatment

of children who are in US custody. Um. It was applied up until this point primarily for unaccompanied miners people children who came without parents at all. It was only recently that the argument was made that we were to take children away from their parents, then they become unaccompanied

and therefore the Flora's agreement comes into play. But the Floor's agreement by itself essentially is about not uh the conditions of custody for children and a strongly favors releasing them either to a sponsor or to a parent, and not keep them in custody while their claims are being heard. Um. And that's why it's coming up right now, is about whether or not uh, they need to be sort of released, especially when the administration wants to keep the parents in

jail pending criminal prosecution. Tell tell me about what the proceedings have been before, um, A federal district judge Dolly g about the Flora's decision. Yeah. So essentially, what the Obama administration had tried to do or thought when there was the surge of accompanying miners coming with their parents, was to try to maintain many of them in some sort of family detention facility. Um. But that when this particular the Florest Agreement with a long time ago. Right,

So this is uh in thees. Essentially, what the recent judge said is that even for these individuals who are accompanied, the Florist Agreement still applies. And therefore what the floor this particular ruling on the Florist agreement said was that children really should be released, hopefully ideally within twenty days uh and be kept in detention while they await their proceeding UM. And that's essentially what Obama did towards a lot of years of his administration, uh, and that drew

the ire of this idea of catch and release. Rick, We're learning a lot about some of the children who have been held before Trump became president and um and the conditions that they've been held in. There are a lot of allegations. Tell us what what you know and where where this stands right now? Yeah, So one thing that Obama confronted, which Trump is a from fronting now is that it's very difficult to ramp up detention capacity capabilities.

And there were a lot of allegations under the Obama administration that the facilities that they set up for were uh inadequate, that there were all sorts of concerns about the conditions themselves, allegations of abuse UM and and the like. UM. Now, there were a little bit of different with regard to facilities that were set up for immediate detention. This was done by Department Homeless Security, and of course the facilities

handled by Office of Refugee and Settlement. Those are a little bit different, but both have been alleged to be inadequate in their own way. UM. That is essentially why the bambinistration ultimately concluded that the expense and the difficulty of doing this uh could be a leevie. By releasing certain individuals out UH, there's some assurance that they would

show up for hearing. UH. It seems like the zero tallenge policy and the proproach of the Trump administration is to go back to that particular stance of trying to keep them in detention and maybe doing family separation as well. UM. And essentially they're confronting the same problem of the Bomb administration confronted, but just in a much larger scale. So what who is who is suing um for these children right now who are still being held in in these facilities.

So there's a lot of different immigration attorneys that are involved in this representing specific individual clients. UM, and there are civil rights organizations representing a group of them that are challenging this UM. And really all the focus right

now is UH. A lot of the focus right now is on trying to clarify the limits of the Floors agreement and how that would apply, UH, and more generally, UH lobbying Congress to UH do something or impose some sort of requirement on what needs to be done in this case. Congress has acted on this issue on several occasions, UH, though not this particular situation because it's I don't think it was anticipated that it would come to this Rick

just about a minute here. But you know, we've talked a lot about the children being reunited with their parents children who were taken away. Is is that more a logistical problem now than a legal problem? Uh, it's a little bit of both. UM. Certainly, there's a logistical problem, and that is just the coordination between all the various agencies ramping up all the information collecting. It's a bureaucratic nightmare,

and I think we're getting reports of that. But there is a legal issue here as well, because it's not clear after the unit sification what's going to happen. Um, the Trump administration is a very unclear of whether or not they're going to still stick with the zero tolerance policy, which means criminal prosecution. But they're going to criminally prosecute them, these individuals won't be released, so that would potentially mean detention for both parents and children in a different facility.

All right, thanks so much, Rick. This is a really complicated issue and we appreciate your insight. That's ricks to a professor at Syracuse University Law School. American Express when a major victory the Supreme Court today in a five to four ruling, the court throughout a lawsuit by the federal government and more than a dozen states accusing AMEX of thwarting competition with its policy. Joining me is Bloomberg,

New Supreme Court reporter Greg's store. So Gregg tell us about this decision, hi June, because, Yeah, this is a case where, um, the federal government and what are now eleven states we're suing American Express saying that the policy

they have uh forwards competition. And what the policy did was it said, uh it does is it says to merchants, you cannot if you're going to accept our card, you cannot try to steer customers to another credit card that charges you lower fees, So the merchant can't say, hey, pay pay for your purchase with this other card and

will give you a discount customer. The Supreme Court today throughout this lawsuit, said the government had focused too much on the impact on merchants and hadn't shown that there was actually any negative impact on the ultimate consumers. Why did this case divide the court along ideological lines? Is it just the business angle? It's a good question, m I trust cases do this sometimes, um, not not always.

Justice Brier wrote, wrote a dissenting opinion. UM, and it's you know, basically just just um uh different views on whether a business practice might actually be harming competition. That's the kind of thing that UM. Liberals and Democratic appointees have a tendency to be quicker to say, yes, there is harm to competition and that's what happened here. Does this Does this case have any implications for the tech industry?

It might well. So there was a lot of concern among consumer advocates that if the court did what it ALTI ended up doing here, uh, throwing up the suit allowing this American Express policy that it can make it harder to sue UM high tech companies as well. And basically, the the what this whole thing is about is order known as two sided markets, where you have two transactions that are going on that are closely connected to each other. In American expresses case, it's with a merchant and with

a customer and UM. Those kinds of two sided markets happen a lot in the tech industry. So, for example, Uber is dealing both with the driver and with the passenger and UH. The concern among consumer advocates and they're they're concerned today is that this ruling will make it much much harder to challenge a company like Uber if there's there are some indications that they are forwarding competition one way or another. So, Greg, there was another gerrymandering

decision which promises to be controversial as well. Tell us about that. Yeah, So, so the court ruled in a Texas case that where a lower court had said that Republican lawmakers in Texas head intentionally discriminated on the basis of race and drawing districts. Now it's a little in the court again divided five to four with the Conservatives in the majority. This was a little bit of an

unusual case because Texas defense was um. The districts we drew were actually ones that a court in an earlier phase of his litigation had put in place as interim maps. And even if you now think that those districts are um are are potentially discriminatory, you can't find us to have intentionally discriminated if all we were doing was using a map that apparently a court thought was good enough

to be put in place on an interim basis. The Supreme Court today agreed with Republicans, and with one minor exception when small exception said that these two challenged maps, one for the state legislature one for for Congress, could stand. So Judge greg was it the was it the facts of this case? Does the Supreme Court still stand for the fact that you know part isn't racial gerrymandering is against the law, but it didn't happen in this case? Or does it not stand for that anymore? Yeah? No, No,

it's the racial gerrymander can still be a problem. And the reason I say can and not necessarily is is that because you have the Voting Rights Act in the background, which sometimes requires people to to think about race when they're drawing districts, because the Voting Rights Act, among other things, is designed to ensure that minorities don't get blocked out of of being able to elect elect people. Uh they're choosing. Um, so there are always some there's always some ability to

use race. But here in this case, the Supreme Court uh made it much harder to sue. In particular, UM, it's more likely to be a Republican legislature for doing things that that, in the views of those who sued, actually made it harder for minorities to elect somebody if they're choosing. About a minute, here, tell us about what happened in the North Carolina case. Yes, so this is a partisan juryman during case and not racial juryman dring. And last week we recall the Court basically punted in

a couple of big partisan jurymandering cases. Refused to decide whether you could ever have a district that was so uh artisan that it was unconstitutional. There's another case about the North Carolina court throughout Republican drawing districts. Today, the Supreme Court UH basically kicked that case back, said take another look at it. Ultimately, I think it will go back up to the Supreme Court, probably at the end

of next term. All right, Greg, well, breathe deeply. Tomorrow we're going to be checking in with you again because the Court is going to be issuing more opinions coming up. That's Bloomberg New Supreme Court reporter Greg Store. One of the opinions that we're waiting for, of course, is the opinion on the Trump travel ban, which has gone up to the Supreme Court, as well as the opinion on mandatory union fees that will be coming up this week as the Court near the end of its term this week.

Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg