This is Bloomberg Law with June Grossel from Bloomberg Radio.
All illegal entry will immediately be halted, and we will begin the process of returning millions and millions of criminal aliens back to the places from which they came.
Just hours after taking office, President Donald Trump signed a flood of executive orders on immigration, ranging from declaring a national emergency at the southern border and barring asylum to fast tracking deportations of undocumented immigrants and cutting off birthright citizenship, a right he's long railed against.
Where a person comes in, has a baby, and the baby is essentially a citizen of the United States for eighty five years, with all of those benefits. It's ridiculous. It's ridiculous, and it has to end.
The ink was barely dry on the executive orders before attorneys general from twenty two New states sued to block the order ending birthright citizenship, saying it was a guarantee enshrined in the fourteenth Amendment that children born in the United States are US citizens.
And this executive order is an assault on the rule of law. It attacks a right that is core to our nation's earliest days. President has overstepped his authority by a mile.
Joining me is Leon Fresco, a partner at Hollanda Knight. He was the head of the Office of Immigration Litigation during the Obama administration. Leon, the first federal judge to consider one of Trump's executive orders, blocked it, ruling from the bench after a short hearing. Judge John Kunauer said in his four decades on the bench he'd never seen such a clear case of a blatantly unconstitutional order as that ending birthright citizenship.
Explain why, well, there are two reasons. One, the case law that's interpreted this for the last one hundred and fifty years has said that any individual born in the United States has merthright citizenship. This comes from a long lineage of Chinese Exclusion Act cases, where in the eighteen hundred they tried to exclude new Chinese individuals from entering, then they tried to deport Chinese non citizens, and finally they tried to deport children of Chinese non citizens who
had been born in the United States. And those cases held you couldn't deport those children because those children were United States citizens, because they were born in the United States. And it's also noteworthy that all of these arguments about immigration are irrelevant because the Fourteenth Amended came out at a time where there were no immigration laws, and so at that time it was just assumed, because that was the law from England, that if you were born in
the land, you were a citizen of that land. And so there's nothing that tracks this to allow this concept of saying that someone who is born in the United States isn't a citizen and this concept of well, but you're outside the jurisdiction of the United States. Well, if that's true, then, as the judge pointed out that there was not really a good answer from the Department of Justice, are you saying that these individuals can then commit any crimes that they want and they be fine because there's
outside the jurisdiction of the United States? And they said no, But then how does that work. You're either subject to the jurisdiction or you're not. You can't have that both ways. And I think you're going to see that happen in many courts, even in the Supreme Court.
The judge gave the Trump Justice Department lawyers sort of a legal beatdown, criticizing their lawyering. Quote, it just boggles my mind that any lawyer could argue birthright citizenship is unconstitutional and scolding the Department of Justice for even entertaining the idea.
The question, I think which will be interesting will be, because the judge was hinting at this, could lawyers that were involved in either crafting such an argument or the executive order themselves, or even arguing these cases? Could those
lawyers face potential penalties. I'm not going to voice any opinion on that, but the judge certainly started talking about where are the lawyers here to say that this shouldn't be something that would be done, So I think that's an interesting issue potentially to monitor.
It's expected that the case will be appealed all the way to the Supreme Court. The only time the Supreme Court ruled on this issue was back in eighteen ninety eight, when it found that a baby born in San Francisco to Chinese immigrants was a US citizen. Do you have any reason to believe that the justices today, even as conservative as they are, would overrule that precedent.
I think if you take textualist view, it still supports birthrights that is in chip in the United States. If you take a historical view, which is another thing conservatives do. It still supports birthrights. It is in chip in the United States, And again, unless the Department of Justice can square the circle and come up with a way in which you can be subject to the jurisdiction of the United States for criminal laws, but not subject to the
jurisdiction of the United States for citizenship purposes. How those two sets of concepts can mean different things when you're using the exact same set of words. That's going to be the biggest challenge. I don't know how you can do that, and that's what creates the fatal problem in their case.
Let's turn out to one of Trump's signature campaign promises, and it'll be.
The largest deportation in the history of our country, and we have no.
Choice.
But we're not seeing the mass raids and deportations that were sort of advertised.
Well, they are publicizing what I would say routine operations of ICE have historically been with a little bit of extra emphasis. So I would say that there are greater numbers of arrests and apprehensions than we're being done under
the Biden administration. But what they are doing is they're really trying to publicize that to create the sense of this is going to be an environment of a large immigration enforcement posture, So individuals really need to be careful and look into this and maybe leave on their own so that you don't feel like you might get involved
in one of these operations. Now, the one interesting announcement that really is going to be impactful is the Biden administration led in a lot of people under what it's called parole. And parole is a status that's very different in immigration law than any other status because it's a status that can both be freely given, but it's also
a status that can be freely revoked. And so there was a MAMMO that was issued by the Acting Secretary of Homeland Security that said, look, if you have a reason to revoke someone's parole, just do it and put them in expedited removal. And the point is unless those
individuals then asked for asylum. That is a large group of people, almost a million people that came in under paroles of the Divide administration that they could decide we're going to use this group as low hanging fruit and we're just going to start going to their homes and revoking their paroles and giving them expedited removal orders sending
them out of the United States. That's going to be a very interesting group to monitor if that actually will be done or not, because those people would have entered with the permission of the United States.
Welle On. The ACLU filed a suit this week to stop Trump's expansion of this expedited removal process to immigrants who can't prove they've been living in the United States continuously for two years.
Yes, So what happens is whenever there's any change to the expedited removal process, you have to file a lawsuit in the districts of Columbia. So the ACLU is saying, look, we're gonna challenge the authority for the Trump administration to so quickly move without the regulatory process from the fourteen day limit on expedited removal that the Biden administration had to the two year limit on expedited removal that the Trump administration wants to put in, which is the maximum
statutory time period permitted previously. I would say that the ACLU would have had a very good argument from the standpoint of, look, this is a mess. How do you find out if someone's been here a year and a half versus two years and a half. This is going to be so complicated if they've crossed the border, et cetera.
But in this parole example, where you actually know with one hundred percent certainty when someone arrives in the United States, there actually is some justification from the Trump administration if they want to go down this route, which of course will create its own complexities, both moral and operational. But nevertheless, if they want to go down the route of revoking the paroles that were given by the Biden administration, then they will know this person was here less than two years.
We can give them an expedited removal order. We wouldn't be breaking any laws, and we should be allowed to do this because we disagree that these paroles ever should have been given in the first place, and so we believe that there's a set of people that are in this country that should never have been allowed in here. And I do think that argument, even if it doesn't get initial sympathy in either the District Court or the DC Circuit, could see a level of sympathy in the
Supreme Court. And so I think that one is going to be an interesting case to watch because even if there's a victory in the lower court, which is by no means guaranteed. I think that one is going to be interesting to monitor all the way through the Supreme Court.
It's been expected that they're going to have some raids and sanctuary cities, and the Justice Department has ordered federal prosecutors to investigate state or local officials they believe are interfering with the crackdown on immigration, saying they could face criminal charges. There's no precedent for prosecuting state or local officials who resist federal immigration enforcement. I mean, what would the charge be.
So there's one interesting case which isn't exactly like that, but I don't know if you recall it. June from a while back, there was a judge in Massachusetts. There was a state court judge, and I believe she told someone in the illegal status, hey, ices in the courthouse, use my back door and go outside the back entrance of the court so that they won't apprehend you. And Ice during the Trump administration did prosecute that judge, and
then the Biden administration ended up rescinding that prosecution. I don't know if you remember that, bac Pas.
I do.
I do, But that's the kind of thing they're talking about, which is there's a lot If you are a state or local official and you have a law that says you're not allowed to share certain information with ice, then you can't be prosecuted for following that law. But that's different than if you are quote unquote harboring or concealing under eight USC. Thirteen twenty four. And that would mean let's say they show up at a library or a school or something, and you're a local official. There's one
thing about saying, look, I can't help you. I don't know what you want me to say. The state laws prohibit me from helping you. That's one thing that's not going to be harboring or concealment. But if what you say is I can't help you, and then at the same time you're typing a text, Hey, get all these people out of here, have them use the rear entrance,
then that could be harboring and concealing. And so those are the examples that they're going to be trying to look for to try to have prosecutions for a.
Group of eleven Attorneys general are already pushing back on that order. Stettying a nineteen ninety seven Supreme Court case that said the federal government can't force state officials to enforce federal programs under the tenth Amendment. So we shall see where that goes. Stay with me, Leon. Coming up, we'll discuss the line military troops at the southern border can't cross. I'm June Gross. When you're listening to Bloomberg.
I will declare a national emergency at our southern border.
This week. After declaring a national emergency at the Southern border, President Donald Trump sent fifteen hundred active duty military to the border indefinitely suspended asylum, lifted longtime rules restricting ice raids near schools and churches, cut off the refugee resettlement program, and expanded fast track deportations. A number of lawsuits have already been filed over these actions, and more are likely to come. I've been talking to immigration law expert Leon Fresco,
a partner at Hollanda Knight. Leon officials say that the troops at the southern border will fly helicopters to assist border patrol agents and help in the construction of barriers, and that there's no plan for them to be used for law enforcement. Explain why things would change if the military were used for law enforcement at the border.
So there is this very long held principle called posse cometadis which says that the military is prohibited from being engaged inside the United States for law enforcement purposes. So that's not permitted under the Posse Commetadas Act. And so what creates the problem there is then, well what can the military actually do on the border. And this continues to come up, whether it's the National Guard or the military, and the traditional answer has been, well, they can observe
people crossing. They can then report that to the domestic military officials, which in this case would be CBP and ICE, and then CBP and ICE can come pick them up. But also, in addition, they can just look very scary, and so you would have all these military folks with
machine guns and helmets and tanks on the border. This potentially could lead to a view, hey, it's very scary for me to cross, Let me not do that, And that certainly would be a deterrent for most people, I believe, But you know, if some people then start to get the message, hey, if those people aren't actually going to do anything, you can still cross, and let's say, ask for asylum. Then that's not going to be a deterrent
in the long run. Now, there's other things that the Trump administration is trying to do to prevent people from actually staying and asking for asylum, such as remain in Mexico and the various asylum bands that they've also put in this week. But those two are going to be litigated, and so we're going to be in a very interesting posture. I do think in the short term you're going to
see a significant decrease in mortar crossings. But the question is in the long term, two years from now, what kind of conversation are we having if all of these measures have been revoked as unlawful and now we're back to the Congress to have to change the environment.
So Trump also directed through executive order that the incoming Secretary of Defense and Homeland Security chief report back within ninety days if they think an eighteen oh seven law called the Insurrection Act should be invoked so that the military could do law enforcement at the border.
Well. Yeah, so the point is if they think that there are actual invasions happening by people of a country. Now, ideally you would do this in a congressional declaration of war. That's when you usually have this in vote. But if you don't have a declaration of war, which is not required under the statue, but it's easier to justify, then what you have to say still is that countries such as Venezuela. I don't think they're going to say it for El Savador because the leader of Al Sabador is
actually quite friendly with many conservatives. Although Trump has criticized him, many Conservatives adore the leader of El Savador, So they may just say it for Venezuela that Venezuela is actually authorizing an incursion of dangerous people into the United States for the purposes of destabilizing the United States. And if they make that argument, then they can say, if you're identified as one of those dangerous people, all we have to do is just find you and take your body out.
We don't have to put you in any court under the Alien Enemies Act. And so that's going to be very interesting to see which groups they actually designate for that.
I would be very shocked if MS thirteen and Alsavador gets invoked for that, because it would require an implicit message that the Alsavador government is actually trying to send these people to the US for the purposes of destabilizing the US, which, by the way, Trump has said, But I do think that would be very unpopular in the conservative movement to criticize the president of El Salvador.
In this way.
But Venezuela will be the most likely to watch.
Leon Trump suspended asylum indefinitely. And that's been a part of US law since nineteen eighty Have losses been filed over that.
That one already exists. It's already against the Biden administration, and it's just being amended in DC to add that. So they actually had that, They already had a debate. So there's a lawsuit on the summer Biden asylum restrictions.
Then when Trump shut down the CDP one app, which is the app that you would use to then legally come to the port of entry, the ACLU came in and said, hey, I need to change this lawsuit to include the ending of the CBP one app because now the defense that the Biden administration had, which is there is no asylum ben you just have to go to the port of entry and use the CBP one app,
that defense is gone. The judge said, look, I'm not going to require them to turn back on the CBP one app If there's a specific case or two that you want to bring to my attention, we might be able to get those people their appointments, but to just turn it on for an indefinite period, he didn't sem
to to interest it in that outcome. Now he didn't do a final ruling, but still the determination about whether the asylum ban first one, the Biden one now plus the Trump one, whether that ban is gonna be permitted, we still don't know. So now that's all going to be analyzed as to what is the current ban, and then we're going to get a decision on that. Again, if I think this was an AI judge or a machine judge, they'd probably say that you can't just ban
asylum completely on the border like this. The Congress would have to change the laws to do it. But we'll wait and see what the.
Outcome is, and we'll certainly be waiting for a lot of decisions on the immigration scene. So it's a pleasure to have you on, Leon, Thanks so much. That's Leon Fresco of Holland and Knight, mister.
Chief Justice, and may it please the Court, we're here today because Ashton Barnes was shot and killed on the side of a Texas highway after being pulled over for unpaid tolls. The question before this court is how to determine whether Astron's Fourth Amendment rights were violated.
In April of twenty sixteen, a Houston police officer shot an unarmed black man twice during a routine traffic stop over unpaid tolls. Lower courts had dismissed the excessive force lawsuit filed against the officer by the victim's mother, but the Supreme Court took another look at the case this week, and justice is across the ideological spectrum appeared to agree that the analysis by the lower courts focusing on the
two seconds prior to the officer shooting was wrong. Here are Justices Elena Kagan and Neil Gorsuch.
We have two opinions below, actually both the Circuit Court and the District Court, who expressed a desire to look beyond two seconds, but said, we can only look at the prior two seconds.
If the only thing we're concerned with is this tut this two second rule, whether it's there or not, Mister McLeod, and we just clarify that as not the law, and.
There seemed to be a consensus that courts must consider the totality of the circumstances when determining whether an officer used excessive force. Here's Justice amy Cony Barrett questioning the lawyer for the victim's mother.
If we said moment of the threat is wrong, and we don't articulate a precise standard other than saying our regular totality of the circumstances test supplies as just as Sotomayor said, that's really what you're asking for.
Although Justice Brett Kavanaugh repeatedly expressed concerns about the implications of such a decision on police officers making traffic stops.
An officer does not get the time we've spent here today to make the decision. Do I let it go knowing that this person could do serious harm or has done and we'll never catch the person, or do I jump on the car and they have to make that decision in about what do you tell them?
Joining me is former federal Prosecutor George U. House of Richard's Carrington. George, tell us what happened during this routine traffic stop.
So the case is focused on a shooting by a Houston police officer not named Felix of Ashton Barnes, a young man in April of twenty sixteen. The plaintiff is his mother, who is suing the officer for using an excessive force and violation of the Fourth Amendment arising from the killing. The question in this case is did the police officer use excessive force in defending himself versus the officer's right indeed duty to protect himself during routine law
enforcement operations. That's the question. The courts below decided in favor of the officer on papers. There was no trial yet and the facts are actually, unfortunately not that unusual because, as you know, a traffic stop is one of the
most dangerous police operations that in domestic violence calls. Officers hate this because they are encountering a situation where unknown dangerous will occur in rapid, split second motion, and the courts of traditionally recognized this and deferred to the officers. In this case, the officer stopped the car, came up to the driver's window ordered Barnes to get out. Barnes refused and then started arguing with him, and the officer said get out of the car, which is normal police practice.
Barnes started to drive off. Now at that point the officer reached in to grab the keys and as a result, he is now riding along as the car begins to take off down a highway. A bad situation. And at that point his weapon was out and he shot the driver twice and killed him. So at issue here in the court, which is the only interesting thing for US lawyers, is the test for determining the reasonableness of the officers use to force. The normal standard is the totality of
the circumstances. That's the test that most lawyers would apply. But the lower court looked at a different standard. They looked at the last two seconds of what happened. And in those that case it's a day to easy giveaway for the officer because at that point he's stuck in the car, he's about to be armed, so he takes immediate action. So, really is which test is taken?
Why did the lower Court and the Fifth Circuit used They call it the moment of threat doctrine. Why didn't they use the totality of the circumstances doctrine?
Well, I don't really know, except that if you use the moment of threat doctrine. On this case, then there's no factual question and the case is dismissed on summary judgmal So you never go to trial. If you look at the totality of the circumstances, there presents a factual issue that is more difficult for the court to dispose of the case in summary judgment, which means, no, we never get to the question of qualified immunity and we never get to a factual question. So that's why they
like that standard better. It's a foregone conclusion to the officer, and that is too narrow because the courts need to look at what led up to the moment of danger, look at all of the behavior. That's the totality of the circumstances, which is normally the legal test that courts would apply.
How do the justice's weigh concerns for the safety of officers.
The justices all seemed to be interested in protecting officer safety. Kavanaf, for example, said, look, what's an officer supposed to do at a traffic stop when someone pulls away? Just let them go. He asked that question, noting that in some situations the driver may be in the middle of committing other criminal acts, so it's not only officers safety, but public safety.
On the other hand, Justice Neil Gorsich seemed like he didn't want the Court to issue a decision that was too pro police.
Why would we put a thumb on the scale that way and say that it's almost impossible to make out a Fourth Amendment claim in those circumstances. Given the varied nature of encounters between police officers and citizens across the country. The standard we've always said reasonableness is a totality of the circumstances.
And he's right in a way that if you go over the moment of danger doctrine, it seems to be highly likely that the police officer wins, as opposed to the totality of circumstances, which is a general rule makes it more difficult at least for the police officer to win at the summer judgment state. So Justice Gorsas wants
to see the system be fair and balanced. I mean, it's kind of ironic that this case is argued in the Supreme Court hours after the President of the United States pardons scores of violent felons who injured police officers. So I think police officer safety is in everyone's mind, perhaps for the president. So the Court I think will come out with a strong opinion to thing. Officers have to be supported. But we're not going to go in
the moment of danger doctrine. It's too narrow, too automatic win for the officer, and that was what Gorsus was saying. I predict that the court will go back to saying it has to be the totality of the circumstances, and no, we don't agree that if the officer. This is for the planeff's position, as the officer acted negligently, he was stupid to reach in the car, and he put himself in a position of danger, and therefore he's not entitled to defend himself. That's technically not the law.
So one of the judges at the Fifth Circuit took the unusual step of asking the justices to clarify how judges should determine when deadly force is reasonable and constitutional. But did it seem like we're not going to get a decision explaining what excessive force is and what it is, and that it's going to be a very narrow decision.
You're right, and for a good reason. It's impossible to define objectively what excessive force is. Because the pantheon of behavior that would be unreasonable i e. Excessive force is simply too broad. It can't be specified. That's why it
typically is a jury question. And of course it has the issue here if you adopt a very narrow view, if you only focused on the officers' actions immediately before the killing, the officers are almost always going to win, except of course, of the George Floyd killing when he had no chance of protecting that behavior.
So will it be sent back to the Fifth Circuit Then.
Most likely is it will be sent back to the trial court district court to apply the correct standard, which is the totality of the circumstances. And in this case, once the judge takes the totality and the circumstances into account, the judge will in law likelihood issue the same decision
ruling for the officers. That'll go back to the Fifth Circuit, who will affirm, and it'll go back to the Supreme Court who will probably say yes, totality the circumstances test is the appropriate test in almost all cases.
So you think even with the totality of the circumstances test, the ruling will still be for the officer.
Probably most people will come down if they've viewed all the facts, that the officer should have just let him drive off. He would later be apprehended, but even the later apprehensionists in this case. Now you have a fleeing suspect and there's increased risk to public safety and the officer safety, So you're not ultimately solving the problem. But again, that argument says that the police officer acted negligently because
of his actions, he put himself in danger. That may be true, but the law is very clear that the officer doesn't it is right or self protection just because he makes a mistake. And the courts have long recognized and should recognize further that officers have one of the most difficult, dangerous jobs on the planet. They have to act incredibly fast on breaking circumstances, particularly at night, and
you're going to make mistakes in those situations. Than the courts have generally recognized that, and that's when they come down on the side of the officer.
So even if the officer is found to have violated Barnes's right, the officer might still be or would probably be shielded by qualified immunity great question.
Yes, so qualified immunity would be the officer's defense even if it found that his actions violated the individual's constitutional rights. Qualified immunity protects the officers when they believe reasonably that they are acting consistent with the Constitution and not in violation. So that is again a factual question that we could
come back to the court. Qualified immunity was not an issue in this case, so I predict at some point during the next few terms we will get the case involving qualified immunity and the Court may have more to say about.
That, particularly after the George Floyd case. There's been a lot of critique of the qualified immunity doctrine as protecting law enforcement from accountability for misconduct. Others say qualified immunity is necessary because it protects government officials from frivolous lawsuits. But do you think that this Roberts Court is likely to change it?
No, I think this Court is likely to clarify it. Now. Remember George Floyd, the officer was never close to qualifying for qualified immunity because he was convicted a criminal intent. So when you know that you are violating someone's rights, it is your intent to harm them or to violate their rights. You don't qualify for qualified immunity. Qualified immunity is you have an objectively reasonable belief turns out to
be wrong that you're acting consistent with the Constitution. That's a narrow band of protection, but it doesn't protect police officers who can make criminal acts.
So in this case, if they rule as we think, they are sent it back and say you've applied the wrong standard, it doesn't change Supreme Court precedent, does it.
I mean it actually is consistent with most of their precedent, which frequently they reiterate the totality of the circumstances. You've got to consider everything that happened before and after the moment of force to determine the reasonableness of the officer's behavior. That decision would be consistent with their precedent. Going with this new doctrine of the moment of danger, I think that's a novel and unwise approach.
Always great to talk to you, George, thanks so much for being on the show. That's former federal prosecutor George Newhouse of Richard's Carrington. 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 Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, 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