Weekend Law: Religion in Schools, Mass Deportations & Nvidia Suit

Published Nov 16, 2024, 1:41 AM

First amendment expert Caroline Mala Corbin, a professor at the University of Miami Law School, discusses a judge blocking a Louisiana law requiring the posting of the Ten Commandments in classrooms. Former US Solicitor General Gregory Garre, a partner at Latham & Watkins, discusses Supreme Court arguments over a shareholders’ security action lawsuit against Nvidia. Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses Trump’s plans for mass deportations. June Grasso hosts.

This is Bloomberg Law with June Brusso from Bloomberg Radio.

This bill mandates the display of the Ten Commandments in every classroom in public, elementary, secondary, in post education schools in a state Louisiana.

Louisiana is the first state to require that the Ten Commandments be displayed in public school classrooms since nineteen eighty, when the Supreme Court struck down a similar Kentucky law on First Amendment grounds. Governor Jeff Landry signed the bill, which requires a poster sized, state approved version of the Ten Commandments to be posted in public classrooms from kindergartens up to universities by January first.

Because if you want to respect the rule of law, you got to start from the original law giver, which was Moses.

But a federal judge has stepped in to stop that from happening, finding that the law is unconstitutional on its face. With state officials vowing to appeal the ruling, the legal showdown won't end tier and may even end up at the Supreme Court. Joining me is an expert in the First Amendment. Caroline mal KORbin, a professor at the University of Miami Law School, tell us about the judges ruling almost two hundred pages.

It was indeed very long. It was one hundred and seventy seven pages. So Louisiana had passed a law mandating the posting of a particular version of the Ten Commandments in every single classroom in the public schools of Louisiana, both case through twelve and the university level. And this was challenged, not surprisingly on Establishment laws ground, and the District Court gave sort of two paths of why this was in fact in violation the establishment clause, and his first line of discussion was that there is very clear precedent on this matter. Kentucky had tried the same thing back in nineteen eighty. It too had passed the law requiring the posting of the Ten Commandments in every single classroom, and the court said, no, you can't do that. There is no real secular reason for this. You can't impose a religion on the walls like that. It is unconstitutional. And so there is Supreme Court precedent directly on point. And so the District Court said, under this decision, which is still good law because the Supreme Court has not yet explicitly overruled it, this law cannot survive. And so that was one approach, which is very straightforward. And then it had another line of argument because there is concerned that the Supreme Court is going to overrule that decision, and in fact, that's partly what Louisiana is hoping. And so given this new Christian friendly Supreme Court, it may well decide that that precedent is no longer good, in part because it relied on some doctrine that the Supreme Court had rejected, so anticipating that that argument, which should be enough, might not be enough, it also analyzed the case under the Supreme court more recent rulings and the Supreme Court's more recent rulings have said, when you're trying to decide whether something violates the establishment clause or not, you must refer to the history and tradition of the practice in question. And so that's what the distcurt did, and in fact, there was even an expert who testified. And then the question was is there a history and tradition of posting the Ten Commandments on the walls of public schools? And the answer was no, there's no.

Will you describe the current test the Supreme Court uses in establishment clause cases.

Yeah, There used to be several different tests the court might rely on in evaluating establishment clause challenges, and they have different names. There was the Lemon tests, the endorsement test, the history and tradition test, the coercion test. In that decision, the Supreme Court essentially killed off two of them, and it said, we are no longer going to rely on the Lemon tests, We're no longer going to rely on the endorsement test. So what the court is going to consider going forward when faced with an establishment clause challenge is a history and tradition analysis, and also it will consider whether anyone is being compelled into practicing religion against their will. And so those the two frame work the court will use going forward. And the District Court in fact used them again in anticipation of its reliance on precedent not being enough for the current court and conducted a history and tradition analysis and also found them to be rather coercive.

Louisiana is going to appeal, and they're in the Fifth Circuit, which indeed the most conservative circuit in the country, has handed down some novel rulings lately, some of them even too much for the Supreme Court do you have any confidence in how the Fifth Circuit will rule.

I do not have any confidence in how they were ruled. But it would not surprise me if they pick up the baton that the Louisiana Statute laid down and argue that there is in fact a history and tradition of the Ten Commandments in schools, and therefore there is nothing wrong with having posters, and would not surprise me if they said it was not at all coercive, because no one's being forced to pray or do any particular religious exercise. So I would not be surprised if again they constructed a history in accurate history, by the way, because the expert did quite a good job of dismantling some of the claims that Louisiana made in its text, including a completely fabricated quotation from James Madison. But nonetheless they will claim that there is parenty of evidence of having the Ten Commandments of schools, and even if there's no evidence of Ten Commandment posters and schools, it doesn't matter. It's enough that there were mention of the Ten Commandment or reading of the Ten Commandment, and therefore there's no violation of the Establishment Clause and they were a claimed that simply looking at the Ten Commandments is not going to force children into doing anything religious, and therefore there is no stay aublishment clause violation.

The Supreme Court that ruled on the Kentucky case in nineteen eighty was a very different court from the Roberts Court of today, with its conservative super majority. I can't remember the last time religion lost at this court. Do you think that if this gets to the Supreme Court that the Kentucky case will stand?

I don't know, because the Supreme Court has traditionally been especially mindful of the establishment clause in the school context for a couple of reasons. The first is that, you know, the children in school are considered very young and very impressionable, and therefore the government has heightened responsibilities towards them. And second is that the students at school are a captive audience. They have no choice but to be there. They're sort of doubly captives. The government requires that they attend school at an as school under the control of the school, and therefore, again there are heightened responsibilities when you're dealing with the young, impressional students who are also a captive audience. Will the Supreme Court continue to honor these considerations. I don't know, Possibly not, Caroline.

Other states have tried to pass laws similar to Louisiana's, and in Oklahoma, the states Superintendent of Schools ordered that the Bible be incorporated into lessons, while Florida recently approved having volunteer religious chaplains serving as school counselors. Is a conservative Christian movement trying to move the line and incorporate religion into public school classrooms.

Oh, I don't think there's any questions. I think that the Supreme Court has made it clear that it is very sympathetic towards lanes of religious exercise. It has also made it clear that it does not hold the establishment clause in high esteem. And so I think this is the vanguard of trying to get religion back into the schools, and depending on the outcome of this case, we'll see what happens in the rest of the country.

This brings up another question in these cases of trying to incorporate religion into public schools, what religion is being incorporated.

One of the really interesting things about this challenge is it not just the introduction of religion into school but it's the introduction of only one faith tradition into the school because the Ten Commandments on the wall are the Protestant King Jin's version of the Ten Commandments. Different faith traditions have different types of Ten Commandments. So, for example, the Catholic version is different because this one says thou shalt make to thyself no graven images, whereas that particular prohibition is not in the Catholic version of the Ten Commandments, whereas in the Jewish version of the Ten Commandments. The first commandment here is I am the Lord thy God, and the Jewish Ten Commandments it is I Am the Lord thy God that brought you forth from Egypt. And these are actually crucial theological differences. And I mention this because under existing doctrine, as the district Court highlighted, the court made it clear that the state cannot discriminate against any other religion, it can't favor one religion over others, it can't intentionally discriminate against other religions. And the choice of this particular version seems to be doing exactly that. And it's particularly problematic because if you look at our history and tradition, at one point to the extent there was any religion in the schools, it was Protestant religion, and it was explicitly meant to exclude Catholics. And the Court has long expressed concern about anti Catholic sentiments in our country's history, and this could be seen as the remnant of that historical hostility the Catholics that they so often complain about and revile. So it might be a little more complicated for them than it would otherwise be with another particular religious practice in the schools. But the fact that this is a Protestant ten Commandments before a court long characterized much of the history in the United States as anti Catholic, maybe you would give them pause.

Well, the next stop is the Fifth Circuit. We'll see what happens there first. Thanks so much, Caroline. That's Professor Caroline Malikorbin of the University of Miami Law School. I'm June Grosso and you're listening to Bloomberg. It's one of two Supreme Court cases within a week over securities fraud class actions against giant tech companies. Last Wednesday it was Meta's Facebook. This Wednesday it was in Vidia. Investors are suing in Vidia for misleading them about how much its profits depended on the volatile crypto money market. But the tech company says the lawsuit isn't supported by evidence like company documents to back up its claims. Justice Kataji Brown Jackson questioned how the investors could even get that kind of evidence at this initial stage of the litigation.

I guess my concern is that you appear to be requiring for plaintiffs to actually have the evidence in order to plead their case. And I didn't understand the pleading standards, even with particularity, to require that they have the documents. Nor do I understand how they could have the documents when discovery hasn't occurred yet.

And several of the justices seem to have buyer's remorse about granting review in the case, saying it was two facts specific and didn't present the kind of broad legal issues that normally prompt Supreme Court review. Here are Justices Sonya so To, Mayor Elena Kagan, and Samuel Alito.

We often don't grant sir to error correct? Is this entire case just an error? Correction? Oh, these particular documents are not precise enough. It becomes less and less us clear why we took this case number one as just as sodam your suggested, and number two why you should win it.

This is a highly technical subject and I just don't understand how a court is supposed to evaluate that at the pleading stage.

Joining me is Gregory gar a partner at Latham and Watkins, and the former Solicitor General of the United States, Greg tell Us about the issue before the court.

So, this case involves the pleading requirements under the Private Securities Litigation Reform Act, and specifically what a planiff has to show to plead with the requisite particularity when the claim is that a company misled investors based on internal information that it knew, and the question is, does a planiff in that situation have to actually produce or describe in detail the internal company documents that the planiff says represents the company's knowledge, or can you prove that knowledge through inferences by relying on expert reports and the like?

And so Justice Katanji Brown Jackson said that in video was basically asking the plaintiffs to have the evidence at the pleating stage before they get discovery.

Right, And that's the pushback that the more liberal justices had for the company's lawyer. The reason for these lawsuits is you typically get into federal court by passing the pleating requirements, and then you get discovery and potentially access to the company's documents. So Justice Jackson sort of said that the company was trying to put the planets in an impossible bind to produce the documents before discovery had ensued. And the company's response to that was that they weren't actually requiring the documents themselves, or that they described the documents in every detail, but they simply had to describe the documents with some particularity. That was really the crux of the case that the company put before the court.

What did you see as the concerns of some of the other justices.

Well, I think that there was a frustration on the court that they really weren't presented with a clear legal rule on either side of the case, and that ultimately the case seemed to boil down to the application of existing law to a really long complaint, which is something that district courts do all the time, but the Supreme Court justices don't do, and particularly don't like to do. And so you could see throughout the argument that there was a frustration on the part of the justices that they were being asked to undertake a task that they typically don't do in engaging in a sort of error correction based on their own reading of the complaint.

Yeah, it seems like justices across the ideological spectrum were concerned about that and showed a little bit of perhaps buyer's remorse. Do you think they were questioning whether they should have granted cert in this case?

I think they were. And of course, the Supreme Court gets to decide which cases it hears every year, and so it can pick the cases it likes. And here I think you're right that there were some buyers remorse that the case, once it was fully briefed and presented to the court at argument, wasn't necessarily the case that they thought they were buying when they agreed to hear it. And so one possible outcome is that the court would simply decline to decide the case at all and to dig it, which means that they would dismiss the writ of Cercherai. The rit agreed to hear the case as improvidently granted, so the case could simply go away.

The shareholders claim that in twenty seventeen and twenty eighteen, the CEO hid the fact that record revenue growth was being driven by mining related sales of the company's graphic processing units rather than buy sales for gaming. And it was just as Neil Gorzich who really got into that.

So he pressed the lawyers on both sides really about what inferences could be drawn about what the CEO knew, and of question whether or not it was plausible that a CEO wouldn't know about potential downtick in sales and the magnitude alleged here billions of dollars, And so he had tough questions and he clearly was, you know, I think, prepared to get into the weeds of this case to resolve it, just.

As Kavanaugh expressed a concern that outside groups and in Vidia's lawyer had raised that the Ninth Circuit decision being appealed here created a sort of blueprint or roadmap for plaintiffs to use to get around the heightened pleading requirements in the private securities that EGAY should reform.

Act right and just Kavanaugh was probably the most outspoken justice on the side of the company at the World Argument, and his concern was that if the Ninth Circuit decision in this case is allowed, then it just creates a blueprint or recipe for points to file where anytime you have a stop drop, you can just go out and find an expert that would put together numbers that would contradict a company's public statements and then ledge in a lawsuit that the company keeps records that its executives look at and argued that those records would have matched their own experts numbers, And so there you have it. Presto a securities action that would proceed past the motion to dismiss stage. And in these sorts of cases, particularly with class actions, that's really the ballgame.

Because the pressure on the company is then to settle.

There's enormous pressure on the companies to settle in that context given the potential damages. Although here Justice Kavanaugh actually pressed the planoff's lawyer on what the magnitude of the damages would be, and the planiff's lawyer was a little bit coy and ultimately said he did not know the answer to that question, you know, perhaps because the amount was potentially quite large.

Yeah, that was a really interesting exchange as Justice Kavanaugh kept pressing the attorney for the plane Tives Deepak Gupta. Here's a part of that exchange.

How much money is at stake in this case? The words the few are to prevail ultimately in the.

Class, not as much as it might seem, because I don't want the court to get the impression that this enormous delta of sales is what's at issue. It would be an issue would be you would have to show lost causation and materiality. What are you seeking, like if you ran the table, what are you seeking? Roughly, I don't know what the numbers are. You're on her.

Several of the justices seem to be saying too. In Nvidia's lawyer, well you want a bright line test, and we can't give you a bright line test. And the Chief Justice didn't seem to be happy with either side's position.

He wasn't, as he put it, I think, you know, both sides want to present this in black and white terms, but there really wasn't a clear rule on either side that the court was likely to adopt, and so they were left in this middle ground that again probably would it is a very narrow ruling that would require the justices to roll up their sleeves and apply the pleading standard to the particular allegations here in this extensive complaint, which is something that the Supreme Court Justices probably don't want to spend their time doing.

In twenty twenty two, in Vidia agreed to pay five and a half million dollars to settle related allegations by the Securities and Exchange Commission that it didn't properly disclose the impact of cryptomining on its gaming business as usual without admitting or denying the findings. Does that have any impact here?

Not?

Really.

It came up in oral argument the government was participating in the case, and the Biden administration came in on the side of the plaintiffs here and argued that the Ninth Circuit had gotten it right. And the Justices did ask about that sec action. But this case is really going to rise or fall on its own allegations under the demands of the PSLRA.

Just last week, the Justices were considering whether to shut down another class action investors lawsuit against Facebook stemming from the privacy scandal, involving the Cambridge Analytical Political consulting firm. Is there a reason why they took two similar cases this term, is this a real problem?

I think it's probably fortuitous that the two cases happened to come to the Court at the same time. That said, both cases came out of the Ninth Circuit, and the Ninth Circuit has been sort of a hotbed for this kind of litigation, and so it's not surprising in that sense that some of these cases has gotten to the Supreme Court. But having taken two of these cases and heard them in the same week, and I think it's sort to say that in most cases the justices were grappling for answers. It may be a while before the Justices decide to wade back into this area.

So what's your take. Do you think that there needs to be more specificity and pleading in the kinds of cases?

I think, you know, Congress was wise to pass the Private Securities Litigation Reform Act, and those pleading standards you know, have and should have teeth. I think in this area usually the pleting standard at the motion to the Smiths stage is you know, the critical test in the litigation, because once you get past that pleting stage, then you get discovery. The cost of litigation rise greatly and you have a threat of enormous damages that often push defendants into settlement even when they strongly believe that there was no securities fraud in the first place. So I think courts you have to police these requirements carefully. So in that sense, it's not surprising that the Supreme Court with intervene where it fears that a court has either veered from the law or where courts have taken conflicting positions on what these standards require.

Always great to get your insights, Greg, Thanks so much. That's Gregorgar of Latham and Watkins, the former US Solicitor General. I'm June Grosso on your list, listening to Bloomberg.

One day one of my new administration, we will begin the largest deportation operation in American history.

We have no choice.

The centerpiece of Donald Trump's re election campaign was avowed to carry out the largest mass deportations of illegal immigrants in the country's history, and the President elect has already decided on the person to carry out his plan as borders are former ICE Director Tom Homan.

We're going to take the handcuffs off Ice that the Biden administration put on him.

Trump has even decided on the two hundred and twenty five year old law he'll use.

I will invoke the Alien Enemies Act of seventeen ninety eight.

But there are about eleven million undocumented immigrants in the country, and there are laws protecting them, logistical problems sending them home, and although Trump says there's no price tag, the cost of deporting them is estimated at three hundred and fifty billion dollars. Joining me is an expert in immigration law, Leon Fresco, a partner at Holland and Knight and the former head of the Office of Immigration Litigation at the Department of Justice. Join the Obama administration. Leon tell us what it would take to carry out these nasty portations and some of the obstacles.

It's going to be a multi stage process, and it's going to require an all hands on that governmental approach, because this is not just a matter of the Department of Homeland Security or ICE or the border. It's going to require the State Department. It's going to require the entire diplomatic corps negotiating with all of the countries in South America, in the Middle East, and in China that we're trying to actually deport people too. And so this is not going to be a very simple first step. You've heard Tom Holman say in various contexts that this isn't going to just be a grab bag where individuals are simply apprehended for no reason, but that there's going to be a targeted effort here. So the first targeted effort would obviously be criminal non citizens. So anybody with a criminal record is going to be the number one top priority for removal. So the question is, well, when you apprehend those individuals, where do you put them? There's about forty to forty five thousand beds that are available right now. Obviously, if you're doing the largest deportation program in history, you're going to need a lot more beds. Where are those beds coming from. We've heard the idea that that could be a military basis, that there would be barrack for that purpose. So fine, you place people in those military barracks, you have them in detention, you put them in detention proceeding, And the question is will there be a place to actually deport those people to when this is all said and done, will there be countries that are willing to actually accept these individuals. So that's where again the State Department is going to have to play in What kind of.

Due process would the immigrants be entitled to before being deported?

The question is, are you going to need to do a whole due process deportation hearing where these hearings are currently backed up by seven years in the immigration court, or will Trump be able to get away with using what's called the Alien Enemies Act, which is a law that's been around since the late seventeen hundred, which allows deportation without due process. But you have to show that a country is specifically trying to infiltrate the United States with people designed to destabilize the United States. So will that be reviewable in a court of law? Because courts have said that things like that in the past are political questions that are not reviewable. Will they be reviewable? And if they are reviewable, will courts say that any country people are from is actually doing this on purpose, is actually sending criminal foreign nationals into the United States for the purpose of the states the country. So all of those are questions that are going to have to be grappled with pretty early on in order to determine whether such an operation could be successful.

Will it be difficult for ice to even find the people it wants to deport.

Well, believe it or not, that's actually the easy part. These days. With all of the artificial intelligence that is has procured in the last several years and databases and documents, pretty much anyone who's left any kind of digital footprint, ICE knows where they are, either from their cells, phone, their car, whether they ordered a pizza, anything of this nature. So unless you've been living in the middle of the woods as a hermit, ice will be able to find you if it wants to find you, relatively quickly. So that's sort of a twentieth century concern at this point. The finding is the easy part. The question is what do you do when you find the person? Where do you literally detain the person? And where do you actually deport the person? And that where the Trump administration is going to have their work cut out for them.

Which countries have not agreed to receive deportation flights, So right now.

It's almost impossible to deport anyone to China, which is a big source of our removal orders. We have tens of thousands of not over one hundred thousand removal orders for people who can be deported to China, but China won't accept those individuals. Cuba is another big one. Cuba. There's probably hundreds of thousands of Cubans who can be deported to Cuba, but Cuba has not and probably will not accept people. Given the country is almost in complete ruins and there's another hurricane potentially coming there and so the country is still destabilized. Accepting hundreds of thousands of people is likely not an option there. Venezuela has not accepted recently people to be deported back to Venezuela. Haiti basically has no government. They fired their prime minister. How do you deport people there? Nicaragua is another country that doesn't let people get deported back to Nicaragua from the United States. And so those are just some examples, but pretty much any country, if you're going to start doing large numbers of people may start objecting to that as saying, look, you're going to destabilize our country. Because the United States is a big country with three hundred and fifty million people, but countries with a million people, if you suddenly put in fifty thousand deportees who are all criminals, that could lead to quite the destabilization in those countries, and so they may do everything possible to try to thwart these deportations.

Trump said on NBC. I think that there's no price tag on this, but I saw estimates that put the cost at more than three hundred billion dollars.

Well, it depends what kinds of costs you're incorporating into this. So first of all, there's the normal cost that everyone would agree to include, which are the costs of detention, which include obviously care and feeding and medicine and all of that for the people while they're in custody. The cost of the actual removal itself, the planes. Many times ICE uses chartered planes to do this, all of that, But then they talk about the cost of what happens then to the economy because interestingly, an undocumented person when they're working in the United States is a net positive to the US federal budget because what's happening is they're paying taxes and they're not getting any benefits because they don't qualify for any benefits. And so this is actually something that the Congressional Budget Office talks about all the time. It's only when people get status and can get benefits that they become potentially a net negative to the budget. But when you remove all these undocumented workers from the economy, you actually create a larger budget deficit hole, and so that's also being counted toward those three hundred billion dollars.

There are some immigration policies that Trump wants to put in place. Again, why does the remain in Mexico. How difficult would it be to restore that?

Well?

Under the remain in Mexico policy, the way that would work is that in an individual enters the United States and asks for asylum, their asylum application is put into the system and is put in line. But where you wait is in Mexico. You don't wait in the United States. And so that was finally allowed by the Supreme Court as legal in twenty nineteen and was about to be implemented in earnest by the Trump administration until COVID happened, And then that didn't end up happening because what happened was instead of putting the cases in the line, the Trump administration simply just rejected people. And that actually continued into the Biden administration, and, believe it or not, as happening now. So the remain in Mexico policy will only be needed if the band that is currently in place which the Biden administration has in place at the moment, is overturned by the court. Now it is likely to be overturned by the courts. That case has sort of been low walked because of the election. I don't think that the people suing wanted to destabilize the border situation right before the election. But now that the election has happened, that case is back up in the forefront. And if the Biden border policy is enjoined, which is essentially a ban, nobody can apply for asylum right now who entered illegally into the United States. If that ban is taken away by the courts and said that that ban is illegal, that's when the Trump administration will need to use remain in Mexico. And the obstacle there is that Mexico has to agree to do this, and a couple of things have happened since the last Trump administration. The Supreme Court of Mexico has said that that's not legal. But the question will be what does that mean If Trump threatens Mexico with fifty percent tariffs on their cars unless they do this. Does the new president of Mexico, Miss Shinbaum, then say, well, we're gonna have to figure something out with our Supreme Court and everything else to make this a possibility, because we don't want fifty percent tariffs on our cars. So all of these levers are in play to try to figure out whether remain in Mexico needs to be placed back and can it be placed back?

And what do you think about the choice of Tom Holman as borders.

Are Tom Holman, the thing I can say about him is he has always been, under many different presidents, a public servant who salutes the flag, and when people have given him a lawful order, he has executed the lawful order. And so this is what he's being charged to do now, is to lead the largest deportation program in history. Now, because he comes from Ice and because he has lived this for several decades, he understands the actual challenges from a legal and logistical standpoint in a way that appointing somebody who's a more political person but less of a detailed orient the person wouldn't know. And that's why I've heard come home and say things like, look, we're gonna have priorities, We're going to have certain people that we look at first, because at the end of the day, that's actually how you have to do this Leon.

We've talked a lot about the obstacles, but bottom line, do you think Trump will be able to carry out these nass deportations?

People don't remember what happened in two thousand and seven. Two thousand and seven was the last time there was actually any significant robust immigration enforcement in the middle of the street, these sort of large scale raids of work fits. When that last happened, that puts such fear in the immigrant community that people stopped going to work, people were hiding. So what I think they're actually trying to accomplish more than anything, is like what you're seeing in all these other areas with foreign policy and with tariffs and where everything else, you sort of lay down a marker that this is going to be the worst thing you've ever seen. And what you're hoping it does is it incentivizes enough people to self support you are going to see a more robust effort to remove people. But I think at the end of the day, if four hundred thousand people end up getting removed in twenty twenty five, that might be ambitious based on where the infrastructure is now, and so we're not talking about ten millions but the hope is that if it's done in a way that creates enough nervousness in the community, that individuals will decide that they can't live with this level of nervousness and they would take matters into their own hands and leave the country.

Thanks Leon, always a pleasure. That's Leon Fresco of Honda Knight. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news by subscribing to the Bloomberg Law Podcast or downloading this show at Bloomberg dot com, slash podcast, slash Law. I'm joom Bronco and you're listening to Bloomberg

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