This is Bloomberg Law with June Brusso from Bloomberg Radio.

This is Bloomberg Law with June Brusso from Bloomberg Radio.

The Supreme Court will not force West Point to drop its consideration of race and admissions, at least for now. On Friday, with a two sentence unsigned order and no public descents, the Justices turned down the group that won the blockbuster decision last year banning affirmative action in colleges and universities. The Court said, quote, the record before this Court is underdeveloped, and this order should not be construed as expressing any view on the merits of the constitutional question. My guest is Audrey Anderson, head of the higher education practice at bass Berry and Simms. Audrey start by reminding us about that affirmative action decision and the footnote that the Chief Justice dropped.

The Supreme Court will not force West Point to drop its consideration of race and admissions, at least for now. On Friday, with a two sentence unsigned order and no public descents, the Justices turned down the group that won the blockbuster decision last year banning affirmative action in colleges and universities. The Court said, quote, the record before this Court is underdeveloped, and this order should not be construed as expressing any view on the merits of the constitutional question. My guest is Audrey Anderson, head of the higher education practice at bass Berry and Simms. Audrey start by reminding us about that affirmative action decision and the footnote that the Chief Justice dropped.

Sure in the case against Harvard and the University of North Carolina at Chapel Hill, the Supreme Court held that colleges and universities could not use race and admissions where they were doing so for the educational benefits of a diverse student body. In that case, though, they dropped a footnote in the decision saying that what we're doing today doesn't say anything about the use of race in our nation's military academies, because the military academies may have potentially distinct interests from the civilian colleges and universities. And they dropped that footnote because the United States had filed an amicas brief saying that they used race as a factor in admitting students to the military academies, and they did so for all the reasons that civilian colleges and universities did. But then in addition to that, the military academies also had additional national security based interests that supported their use of race. So the court said, look, in this case against UNC and Harvard, we're not ruling on any of those different interests that the military academies might have. So unlike all the civilian college and universities, there isn't one of them that now says that they are using race as a factor in admissions. Everybody stopped. But at West Point and at the Naval Academy, they still say that we're going to use race and admissions.

Sure in the case against Harvard and the University of North Carolina at Chapel Hill, the Supreme Court held that colleges and universities could not use race and admissions where they were doing so for the educational benefits of a diverse student body. In that case, though, they dropped a footnote in the decision saying that what we're doing today doesn't say anything about the use of race in our nation's military academies, because the military academies may have potentially distinct interests from the civilian colleges and universities. And they dropped that footnote because the United States had filed an amicas brief saying that they used race as a factor in admitting students to the military academies, and they did so for all the reasons that civilian colleges and universities did. But then in addition to that, the military academies also had additional national security based interests that supported their use of race. So the court said, look, in this case against UNC and Harvard, we're not ruling on any of those different interests that the military academies might have. So unlike all the civilian college and universities, there isn't one of them that now says that they are using race as a factor in admissions. Everybody stopped. But at West Point and at the Naval Academy, they still say that we're going to use race and admissions.

Do we know exactly how they use race and admissions?

Do we know exactly how they use race and admissions?

From the filings in the court cases that are pending right now, we can see how they use race and admissions. I'm not as familiar with how the Naval Academy uses race, But for West Point, the papers show us that it is done in a different way than at civil colleges and universities. And that's because you get into West Point in a different way than you get into a usual college or university. Almost everybody who gets into West Point gets in through a nomination from a member of Congress. And what West Point says is that for those applicants who get in through a nomination from a member of Congress, there's no consideration of race at all in those applications. They get scored through something called the whole candidate score that does not take race into account. However, after those applicants are admitted, there are some additional spaces left in the class. First, I can tell the papers haven't told us how many spaces in the class are still open. After that, and then there are a couple of buckets, one called additional Applicants bucket, which is for people who were nominated by a member of Congress but didn't get in through that route, so you can get in that way. Those applicants are considered by race. Also, the superintendent of the Academy can nominate people to be admitted to the academy, so those folks get in with race being considered also. And then there's this third process that is the analog to early decision at a civilian university, which is called a letter of acceptance. So applicants can apply for a letter of acceptance kind of at the front end of the process. And if you get a letter of acceptance early on, but then for some reason you don't get in through the regular process of getting in through a member of Congress, west Point says we will find a spot for you. It sounds to me like kind of like a guarantee in handing out those letters of acceptance they also consider race.

From the filings in the court cases that are pending right now, we can see how they use race and admissions. I'm not as familiar with how the Naval Academy uses race, But for West Point, the papers show us that it is done in a different way than at civil colleges and universities. And that's because you get into West Point in a different way than you get into a usual college or university. Almost everybody who gets into West Point gets in through a nomination from a member of Congress. And what West Point says is that for those applicants who get in through a nomination from a member of Congress, there's no consideration of race at all in those applications. They get scored through something called the whole candidate score that does not take race into account. However, after those applicants are admitted, there are some additional spaces left in the class. First, I can tell the papers haven't told us how many spaces in the class are still open. After that, and then there are a couple of buckets, one called additional Applicants bucket, which is for people who were nominated by a member of Congress but didn't get in through that route, so you can get in that way. Those applicants are considered by race. Also, the superintendent of the Academy can nominate people to be admitted to the academy, so those folks get in with race being considered also. And then there's this third process that is the analog to early decision at a civilian university, which is called a letter of acceptance. So applicants can apply for a letter of acceptance kind of at the front end of the process. And if you get a letter of acceptance early on, but then for some reason you don't get in through the regular process of getting in through a member of Congress, west Point says we will find a spot for you. It sounds to me like kind of like a guarantee in handing out those letters of acceptance they also consider race.

This suit was brought against West Point by Students for Fair Admissions. That's the group behind all these lawsuits challenging affirmative action in colleges and universities. And in reaction to this decision, the group issued a statement, and it seemed to me they were misinterpreting the Chief Justice's footnote. They said the Supreme Court didn't address military academies in that decision only because the Court didn't know how they used race. That's not what the Chief Justice said, is it?

This suit was brought against West Point by Students for Fair Admissions. That's the group behind all these lawsuits challenging affirmative action in colleges and universities. And in reaction to this decision, the group issued a statement, and it seemed to me they were misinterpreting the Chief Justice's footnote. They said the Supreme Court didn't address military academies in that decision only because the Court didn't know how they used race. That's not what the Chief Justice said, is it?

No, it's not. I think that they're selling the court short. I think the court was more talking about we're not discussing these because the military academies are putting forth a different interest, a different purpose for using race. So I think there's two things the courts didn't know. First of all, we need to look at this whatever different interest the military is putting forward. They're saying, yeah, we have the same educational interest everybody else has, but we also have a national security based interest that requires us to use race. I think that's what they were really talking about when they talk about potentially distinct legal interests. So it's does the military have a different compelling interest that supports the use of race? And then the second part then is are they using it in a narrowly tailored way, which is what SFFA is talking about. They didn't know how they were using race.

No, it's not. I think that they're selling the court short. I think the court was more talking about we're not discussing these because the military academies are putting forth a different interest, a different purpose for using race. So I think there's two things the courts didn't know. First of all, we need to look at this whatever different interest the military is putting forward. They're saying, yeah, we have the same educational interest everybody else has, but we also have a national security based interest that requires us to use race. I think that's what they were really talking about when they talk about potentially distinct legal interests. So it's does the military have a different compelling interest that supports the use of race? And then the second part then is are they using it in a narrowly tailored way, which is what SFFA is talking about. They didn't know how they were using race.

So students for Fair Admissions ask for an injunction, and the Supreme Court said no in an order, and it's sort of uncommon. There was a two sentence statement. It said, the record before this Court is underdeveloped, and this order should not be construed as expressing any of you on the merits of the constitutional question. There were no public descents, not even from you know, the super conservative justices who have long opposed affirmative action. And even though they say, don't construe this in any way, we still try to look behind it. So what do you make of their statement?

So students for Fair Admissions ask for an injunction, and the Supreme Court said no in an order, and it's sort of uncommon. There was a two sentence statement. It said, the record before this Court is underdeveloped, and this order should not be construed as expressing any of you on the merits of the constitutional question. There were no public descents, not even from you know, the super conservative justices who have long opposed affirmative action. And even though they say, don't construe this in any way, we still try to look behind it. So what do you make of their statement?

Well, what I make of their statement is that, but if the whole court had not agreed to make that statement, that we're not saying anything on the merits of the constitutional question, you would have had some of the more conservative members of the Court dissenting saying we need to put an injunction in place right now because this is so clearly unconstitutional. Didn't you read our opinion? That's how I read that. I mean, I think you also have to look at you in the very aggressive litigation position that Students for Fair Admissions took in this case, that once their injunction was denied by the district court, they filed for emergency injunctive relief from the Second Circuit. And then even before the Second Circuit ruled, and not even two weeks after oral argument at the Second Circuit, they filed their motion for emergency injunctive relief before the Supreme Court, saying it is so urgent that you take action that you need to take action even before the Court of Appeals can rule on this. So they were going with a very very aggressive position in this case and making, you know, an argument that, oh, it is so clear, we don't even need any factual development. And for somebody who just basically believes that there is a color blind constitution, that's probably a very appealing argument. So that's what I think is going on there.

Well, what I make of their statement is that, but if the whole court had not agreed to make that statement, that we're not saying anything on the merits of the constitutional question, you would have had some of the more conservative members of the Court dissenting saying we need to put an injunction in place right now because this is so clearly unconstitutional. Didn't you read our opinion? That's how I read that. I mean, I think you also have to look at you in the very aggressive litigation position that Students for Fair Admissions took in this case, that once their injunction was denied by the district court, they filed for emergency injunctive relief from the Second Circuit. And then even before the Second Circuit ruled, and not even two weeks after oral argument at the Second Circuit, they filed their motion for emergency injunctive relief before the Supreme Court, saying it is so urgent that you take action that you need to take action even before the Court of Appeals can rule on this. So they were going with a very very aggressive position in this case and making, you know, an argument that, oh, it is so clear, we don't even need any factual development. And for somebody who just basically believes that there is a color blind constitution, that's probably a very appealing argument. So that's what I think is going on there.

I mean, they've been aggressive, but their cases have been going on for years and years and years. Why do you think there were so aggressive in this instance.

I mean, they've been aggressive, but their cases have been going on for years and years and years. Why do you think there were so aggressive in this instance.

Well, I think they're so aggressive partly because they really believe in their in their argument, and they honestly believe that white people are being hurt by not being able to go to West Point. I do believe that that is part of what is motivating them. But I think that they are also they are hoping to get as much out of the Harvard and UNC decision as they possibly can. They got a big win there, and they're kind of saying, well, let's see just how much we can get out of it. Maybe we can get out of it an injunction immediately to stop West Point. So I think that the really interesting question that I haven't figured out an answer to and it could because I just haven't really dived into all the details of the Naval Academy case. Is that their strategy in the Naval Academy case is quite different. They lost at the District Court for very similar reasons. The district Court said, we don't have enough facts here. In order to do strict scrutiny, we really need a factual record to scrutinize, and at this early stage, with no discovery, with no exchange of information, we don't have that factual record that we can scrutinize. So we've got to get some facts before we can do strict scrutiny. And on that one, the District Court ruled and Students for Fair Admissions has not appealed, no less gone for an emergency injunction. They're just letting the case play out, as often happens in litigation. So they've started discovery in that matter and have a trial set for the fall. So it's really interesting to me. I don't know why they treated the Naval Academy case differently than the West Point case.

Well, I think they're so aggressive partly because they really believe in their in their argument, and they honestly believe that white people are being hurt by not being able to go to West Point. I do believe that that is part of what is motivating them. But I think that they are also they are hoping to get as much out of the Harvard and UNC decision as they possibly can. They got a big win there, and they're kind of saying, well, let's see just how much we can get out of it. Maybe we can get out of it an injunction immediately to stop West Point. So I think that the really interesting question that I haven't figured out an answer to and it could because I just haven't really dived into all the details of the Naval Academy case. Is that their strategy in the Naval Academy case is quite different. They lost at the District Court for very similar reasons. The district Court said, we don't have enough facts here. In order to do strict scrutiny, we really need a factual record to scrutinize, and at this early stage, with no discovery, with no exchange of information, we don't have that factual record that we can scrutinize. So we've got to get some facts before we can do strict scrutiny. And on that one, the District Court ruled and Students for Fair Admissions has not appealed, no less gone for an emergency injunction. They're just letting the case play out, as often happens in litigation. So they've started discovery in that matter and have a trial set for the fall. So it's really interesting to me. I don't know why they treated the Naval Academy case differently than the West Point case.

And the West Point case now is back on the ordinary track.

And the West Point case now is back on the ordinary track.

Well, no, because they still have an appeal pending before the Second Circuit. So that case now, it kind of ironically will likely be slowed down because the district Court probably won't do anything with it until the Second Circuit rules. And all the Second Circuit has done now is to say we're denying your requests for immediate relief. Said, hey, Second Circuit, while you're deciding our appeal, you need to enter an injunction right now and then decide the appeal. So the Second Circuits said, okay, well, we've got this appeal, but we're not going to give you immediate relief while we're deciding it. We're going to decide the appeal now. So they still have to decide the appeal in the Second Circuit, So that's going to slow them down a little bit. In the West Point case.

Well, no, because they still have an appeal pending before the Second Circuit. So that case now, it kind of ironically will likely be slowed down because the district Court probably won't do anything with it until the Second Circuit rules. And all the Second Circuit has done now is to say we're denying your requests for immediate relief. Said, hey, Second Circuit, while you're deciding our appeal, you need to enter an injunction right now and then decide the appeal. So the Second Circuits said, okay, well, we've got this appeal, but we're not going to give you immediate relief while we're deciding it. We're going to decide the appeal now. So they still have to decide the appeal in the Second Circuit, So that's going to slow them down a little bit. In the West Point case.

How have universities been dealing with the Supreme Court's affirmative action decision? Have they been considering race holistically?

How have universities been dealing with the Supreme Court's affirmative action decision? Have they been considering race holistically?

No one is saying that they're considering race anymore. So I have to imagine that they have all stopped using race. They all changed their admissions policies to stop using race as a factor, because the Supreme Court said to do so is unconstitutional and we will have to see after this admission cycle what difference that makes, if any, in the diversity of the classes that they end up with.

No one is saying that they're considering race anymore. So I have to imagine that they have all stopped using race. They all changed their admissions policies to stop using race as a factor, because the Supreme Court said to do so is unconstitutional and we will have to see after this admission cycle what difference that makes, if any, in the diversity of the classes that they end up with.

Dartmouth's College will once again require standardized testing for applicants. It's following MIT in reversing a pandemic error shift away from tests such as the SAT and ACT. Dartmouth said in a statement today that restoring the testing mandate will help attract the most promising and diverse students to our campuses. I've been talking to Audrey Anderson, head of the higher education practice at Bass, Barry and Simms. Audrey Dartmouth says this is going to attract more diverse candidates. But I thought there was a complaint about standardized testing, that it's unfair to lower income students.

Dartmouth's College will once again require standardized testing for applicants. It's following MIT in reversing a pandemic error shift away from tests such as the SAT and ACT. Dartmouth said in a statement today that restoring the testing mandate will help attract the most promising and diverse students to our campuses. I've been talking to Audrey Anderson, head of the higher education practice at Bass, Barry and Simms. Audrey Dartmouth says this is going to attract more diverse candidates. But I thought there was a complaint about standardized testing, that it's unfair to lower income students.

I think it's really interesting June and they've Dartmouth did its own little study on this, and others have been doing studies as well about you know, if you're only looking at great point averages and teacher recommendations and extracurricular activities, if you have a student who coming from a disadvantage background, it can be hard for that student to stand out, and elite colleges may not be very familiar with their high school. If a student from one of those high schools gets a standardized test score, that might not be a quote unquote perfect score on the SAT or the ACT, but it's still a strong score. It is a way for that student to distinguish themselves. And from just the little bit I've read about the research that Dartmouth did and that others have done, it's a way for a school like Dartmouth that says, look, we will allow in students with a range of test scores, and when we look at test scores, we're going to consider a test score differently from a student that comes from a disadvantaged high school, disadvantaged background. Then we're going to look at a student from a school that's in a very affluent area, and that we're going to assume that student's got a very affluent background. So we think that we should and what the Furthermore, their study found they looked at students who applied from lower income backgrounds and chose not to report their test scores, but they somehow found out what those test scores were, and they found that some of those students Dartmouth did not accept who had not reported their test scores but said that if they'd reported their test scores, Dartmouth would have taken them, really because because the student thought their test score was too low, because it was probably well below the median score of what Dartmouth said was in their class, but based on their high school background, the people at Dartmouth are saying, well, we would have known that a student with that kind of test score from that high school was a very strong student because they don't have they didn't have a kind of academic background in high school that these other students had. So a score of fourteen hundred from that student is really a show a whole lot of academic strength. So that's really interesting. I think schools are going to be making a lot of different choices. But one of the things that was asked on one interview I saw that Dartmouth person was well, aren't you afraid that this data is going to make it easier for people like students for fair admissions to sue you and say that you're really using race and admissions because it might show that your students of color have lower average test scores than your white students. And the person from Dartmouth said, we're not worried about that we are really about access for students from disadvantaged backgrounds. But that is I mean, that's one of the things I've thought about for a long time is if you don't have that test score data, you've really taken probably the biggest arrow out of sffa's quiver. That's really what they rely on to show you must be discriminating on the basis of race.

I think it's really interesting June and they've Dartmouth did its own little study on this, and others have been doing studies as well about you know, if you're only looking at great point averages and teacher recommendations and extracurricular activities, if you have a student who coming from a disadvantage background, it can be hard for that student to stand out, and elite colleges may not be very familiar with their high school. If a student from one of those high schools gets a standardized test score, that might not be a quote unquote perfect score on the SAT or the ACT, but it's still a strong score. It is a way for that student to distinguish themselves. And from just the little bit I've read about the research that Dartmouth did and that others have done, it's a way for a school like Dartmouth that says, look, we will allow in students with a range of test scores, and when we look at test scores, we're going to consider a test score differently from a student that comes from a disadvantaged high school, disadvantaged background. Then we're going to look at a student from a school that's in a very affluent area, and that we're going to assume that student's got a very affluent background. So we think that we should and what the Furthermore, their study found they looked at students who applied from lower income backgrounds and chose not to report their test scores, but they somehow found out what those test scores were, and they found that some of those students Dartmouth did not accept who had not reported their test scores but said that if they'd reported their test scores, Dartmouth would have taken them, really because because the student thought their test score was too low, because it was probably well below the median score of what Dartmouth said was in their class, but based on their high school background, the people at Dartmouth are saying, well, we would have known that a student with that kind of test score from that high school was a very strong student because they don't have they didn't have a kind of academic background in high school that these other students had. So a score of fourteen hundred from that student is really a show a whole lot of academic strength. So that's really interesting. I think schools are going to be making a lot of different choices. But one of the things that was asked on one interview I saw that Dartmouth person was well, aren't you afraid that this data is going to make it easier for people like students for fair admissions to sue you and say that you're really using race and admissions because it might show that your students of color have lower average test scores than your white students. And the person from Dartmouth said, we're not worried about that we are really about access for students from disadvantaged backgrounds. But that is I mean, that's one of the things I've thought about for a long time is if you don't have that test score data, you've really taken probably the biggest arrow out of sffa's quiver. That's really what they rely on to show you must be discriminating on the basis of race.

We'll see how many schools follow Dartmouth and MIT. Standardized testing is optional at this point at Harvard, which of course lost that Affirmative Action Supreme Court case. Thanks for some interesting insights, Audrey. That's Audrey Anderson of Bass, Barry and Simms. Let's turn now to the long awaited Senate bill on Border Security and Foreign Aid. The more than one hundred eighteen billion dollar compromise would crack down on illegal border crossings, make it harder to apply for asylum, and speed up deportations of undocumented migrants, but it now faces criticism from both the left and the right, the most serious threat coming from Republicans led by former President Donald Trump. Republican Senator James Langford, one of the bill's authors, has been trying to combat misinformation and stress the importance of getting a border deal now.

We'll see how many schools follow Dartmouth and MIT. Standardized testing is optional at this point at Harvard, which of course lost that Affirmative Action Supreme Court case. Thanks for some interesting insights, Audrey. That's Audrey Anderson of Bass, Barry and Simms. Let's turn now to the long awaited Senate bill on Border Security and Foreign Aid. The more than one hundred eighteen billion dollar compromise would crack down on illegal border crossings, make it harder to apply for asylum, and speed up deportations of undocumented migrants, but it now faces criticism from both the left and the right, the most serious threat coming from Republicans led by former President Donald Trump. Republican Senator James Langford, one of the bill's authors, has been trying to combat misinformation and stress the importance of getting a border deal now.

Even when President Trump was president, we had days of more than four thousand people illegally crossing our border a day. We had huge spike days even during that time period. If we don't actually fix the loopholes in the law, regardless of who's president, that's never going to get better.

Even when President Trump was president, we had days of more than four thousand people illegally crossing our border a day. We had huge spike days even during that time period. If we don't actually fix the loopholes in the law, regardless of who's president, that's never going to get better.

Joining me is Leon Fresco of Honda Night, the former head of the Office of Immigration Litigation at the Justice Department. Leon, what stands out to you in this bill is it's going to be.

Joining me is Leon Fresco of Honda Night, the former head of the Office of Immigration Litigation at the Justice Department. Leon, what stands out to you in this bill is it's going to be.

Up to the eye of the beholder in terms of what people want to do moving forward. If people want to build a long term structure that will reduce the number of people coming across the border, albeit not immediately, it will take some time, then this bill is a bill they should consider voting for because at the end of the day, the things this bill does is it provides a ceiling on a worst case scenario in the border, which, depending on who the president is, could be either four thousand people. That's when that ceiling can be enacted, and then it must be enacted at border crossing levels of five thousand per day. And when that happens, they're basically at shut down, which means that people cannot come across anymore. They're just immediately removed. You can't ask for a side, you can't ask for anything else, you immediately get turned back. Now, to do that, there's gonna be a infrastructure that's going to need to be built over the course of time, where people are put in place to put in that infrastructure. Because there's another system that gets put in place where people can ask for asylum through a different screening process, and that process will always have at a bare minimum fourteen hundred people per day. That process is going to take some time to need to get us to speed, and so there's gonna be some bumpiness as that process moves forward. Now, having said that, there are some challenges on both sides of the equation. On the left side of the equation, there's still the grumbling of why was this border enforcement bill done, paired with Ukraine and other funding, and that's part of some larger overhaul of the entire immigration system. So that's the griping on the left, and you're seeing Bernie Fenders, Bob Menendez, and Alex Padilla saying that's they have three Democratic senators saying that and then on the right you have this idea of the borders should just be closed, period and there should be no number of people at the end of the day who are forbidded to cross to make asylum claims, and the story all the asylum planes should either be made in Mexico or not made at all. It's unclear, and so that part is a little bit also troubling, because you want to be a nation of laws and you want to be a nation of immigrants and of values. They want to do both, and it's unclear if there's space even for any asylum seekers to present themselves in any forum under a conservative plan. But nevertheless, that's where we're left. And then there's people saying that Biden should just do this on his own, which the problem is not even Trump nor Biden could do this on their own. There is this legislative need to actually put in such changes to the asylum system. But for now it's politically expedient to say that Biden could do this on his own when he really can't.

Up to the eye of the beholder in terms of what people want to do moving forward. If people want to build a long term structure that will reduce the number of people coming across the border, albeit not immediately, it will take some time, then this bill is a bill they should consider voting for because at the end of the day, the things this bill does is it provides a ceiling on a worst case scenario in the border, which, depending on who the president is, could be either four thousand people. That's when that ceiling can be enacted, and then it must be enacted at border crossing levels of five thousand per day. And when that happens, they're basically at shut down, which means that people cannot come across anymore. They're just immediately removed. You can't ask for a side, you can't ask for anything else, you immediately get turned back. Now, to do that, there's gonna be a infrastructure that's going to need to be built over the course of time, where people are put in place to put in that infrastructure. Because there's another system that gets put in place where people can ask for asylum through a different screening process, and that process will always have at a bare minimum fourteen hundred people per day. That process is going to take some time to need to get us to speed, and so there's gonna be some bumpiness as that process moves forward. Now, having said that, there are some challenges on both sides of the equation. On the left side of the equation, there's still the grumbling of why was this border enforcement bill done, paired with Ukraine and other funding, and that's part of some larger overhaul of the entire immigration system. So that's the griping on the left, and you're seeing Bernie Fenders, Bob Menendez, and Alex Padilla saying that's they have three Democratic senators saying that and then on the right you have this idea of the borders should just be closed, period and there should be no number of people at the end of the day who are forbidded to cross to make asylum claims, and the story all the asylum planes should either be made in Mexico or not made at all. It's unclear, and so that part is a little bit also troubling, because you want to be a nation of laws and you want to be a nation of immigrants and of values. They want to do both, and it's unclear if there's space even for any asylum seekers to present themselves in any forum under a conservative plan. But nevertheless, that's where we're left. And then there's people saying that Biden should just do this on his own, which the problem is not even Trump nor Biden could do this on their own. There is this legislative need to actually put in such changes to the asylum system. But for now it's politically expedient to say that Biden could do this on his own when he really can't.

Why can he Why can't he issue an executive order?

Why can he Why can't he issue an executive order?

So the most he can do is what Trump started to try to do, which was this process called remain in Mexico, which is, take people who are into the United States and move them back into Mexico for processing of their immigration cases in Mexico. You couldn't just stop it. You couldn't just ban it, which is what people are saying now. You'd have to continue processing their cases in Mexico. And so that requires a lot of cooperation with Mexico because these people need to actually be there, they need to be reachable for the purposes of their cases. There needs to be an infrastructure that set up. Mexico needs to agree to accept people from other countries to allow them to wait in Mexico while their asylum playing is pending, as opposed to then if somebody gets supported to Mexico, Mexico can then deport them back to a different country that's not permitted here, because those people actually have to stay to be able to make their claim in the United States. And so even at the height of the Trump levels of remain in Mexico, we were not doing more than a few hundred people like this to day. And so if we're talking about five thousand people per day, we've not had that yet. There's no infrastructure yet for that arrangement, and that's what Biden can do. He can't just ban people from asking for asylum. That's where he needs a new statutory hook for that, as the Ninth Circuit has twice, once un they're Trump and now on they're Biden says, you can't ban people from applying for asylum in the United States. Instead, you can do this remain in Mexico, but you would need to build this infrastructure. And for the purposes of the political side of this, nobody thinks you could actually ramp that up now by the time they would make any difference for election day, it would still take a lot of time. And so that's where people are stuck at the moment.

So the most he can do is what Trump started to try to do, which was this process called remain in Mexico, which is, take people who are into the United States and move them back into Mexico for processing of their immigration cases in Mexico. You couldn't just stop it. You couldn't just ban it, which is what people are saying now. You'd have to continue processing their cases in Mexico. And so that requires a lot of cooperation with Mexico because these people need to actually be there, they need to be reachable for the purposes of their cases. There needs to be an infrastructure that set up. Mexico needs to agree to accept people from other countries to allow them to wait in Mexico while their asylum playing is pending, as opposed to then if somebody gets supported to Mexico, Mexico can then deport them back to a different country that's not permitted here, because those people actually have to stay to be able to make their claim in the United States. And so even at the height of the Trump levels of remain in Mexico, we were not doing more than a few hundred people like this to day. And so if we're talking about five thousand people per day, we've not had that yet. There's no infrastructure yet for that arrangement, and that's what Biden can do. He can't just ban people from asking for asylum. That's where he needs a new statutory hook for that, as the Ninth Circuit has twice, once un they're Trump and now on they're Biden says, you can't ban people from applying for asylum in the United States. Instead, you can do this remain in Mexico, but you would need to build this infrastructure. And for the purposes of the political side of this, nobody thinks you could actually ramp that up now by the time they would make any difference for election day, it would still take a lot of time. And so that's where people are stuck at the moment.

Under the bill, it would expedite the asylum processing timeline from years to six months. Wouldn't that require a lot more people.

Under the bill, it would expedite the asylum processing timeline from years to six months. Wouldn't that require a lot more people.

Well, yes, they're doing two things. They're hiring about four thousand new people, but they're also ending the situation where people go to immigration court for their cases. There would just basically be a screening up front by a new screening division of what is called US Citizenship and Immigration Services. So that's the people who do the legal immigration part of the American system. So they would hire a new refugee corps of about four thousand people in it, and those people would do an initial screening, and one of three things could happen at that initial screening. Either the person could be immediately disqualified and then would be removed subject to an appeal. That's the proposedly would take place within seventy two hours. We'll see if it can actually take place so quickly, but nevertheless, that would be one option. The second option would be the case would be so compelling that it would be obvious this person actually qualified for asylum and you wouldn't need some lengthy trial. So, for instance, if people were fleeing a well known holocaust that's happening in some country, then everybody well, no, oh, yeah, you're from ex country, there is a holocaust in that country. We get it, okay, so end the story. So those people would not need to go through the whole machinations of a trial or three. You then actually have a longer proceeding that's supposed to take place within six months. That will then be the final distermination about whether you win asylum or not.

Well, yes, they're doing two things. They're hiring about four thousand new people, but they're also ending the situation where people go to immigration court for their cases. There would just basically be a screening up front by a new screening division of what is called US Citizenship and Immigration Services. So that's the people who do the legal immigration part of the American system. So they would hire a new refugee corps of about four thousand people in it, and those people would do an initial screening, and one of three things could happen at that initial screening. Either the person could be immediately disqualified and then would be removed subject to an appeal. That's the proposedly would take place within seventy two hours. We'll see if it can actually take place so quickly, but nevertheless, that would be one option. The second option would be the case would be so compelling that it would be obvious this person actually qualified for asylum and you wouldn't need some lengthy trial. So, for instance, if people were fleeing a well known holocaust that's happening in some country, then everybody well, no, oh, yeah, you're from ex country, there is a holocaust in that country. We get it, okay, so end the story. So those people would not need to go through the whole machinations of a trial or three. You then actually have a longer proceeding that's supposed to take place within six months. That will then be the final distermination about whether you win asylum or not.

Does this peel have any effect on the migrants who have come into the country the last year. Does it affect No.

Does this peel have any effect on the migrants who have come into the country the last year. Does it affect No.

No, And that's a big criticism of the Republicans is for the people that have come in this year and last year and the year before, there is to be some larger organization in place in terms of authority to remove those people. Now, what there will be is there's a lot more funding for ICE to try to engage in removal processes, and there's more funding for immigration courts to try to have more cases done. But really, at the end of the day, those things take time because one ICE can't do anything unless the people involved have a removal order. So they've got to now finish the immigration court system. And the thing is, you can spend all the money you want on immigration court, but at the end of the day, these these buildings are finite buildings, meaning you can only put judges in so many places in these buildings. So you'll either need to get more buildings for people to have more cases, or you'll have to have more of these very unsatisfactory video conference hearings where people are having all kinds of trouble hearing one another, and really you would be very disappointed in the kind of just this that happened in these video conference theories. But that would be another alternative. But if you wanted to do it right, where there was more capacity in an actual courtroom for people to actually do their cases, that's going to take time to implement.

No, And that's a big criticism of the Republicans is for the people that have come in this year and last year and the year before, there is to be some larger organization in place in terms of authority to remove those people. Now, what there will be is there's a lot more funding for ICE to try to engage in removal processes, and there's more funding for immigration courts to try to have more cases done. But really, at the end of the day, those things take time because one ICE can't do anything unless the people involved have a removal order. So they've got to now finish the immigration court system. And the thing is, you can spend all the money you want on immigration court, but at the end of the day, these these buildings are finite buildings, meaning you can only put judges in so many places in these buildings. So you'll either need to get more buildings for people to have more cases, or you'll have to have more of these very unsatisfactory video conference hearings where people are having all kinds of trouble hearing one another, and really you would be very disappointed in the kind of just this that happened in these video conference theories. But that would be another alternative. But if you wanted to do it right, where there was more capacity in an actual courtroom for people to actually do their cases, that's going to take time to implement.

Coming up next, Texas Governor Greg Abbott gathers other Republican governors at the border to try to ratchet up the pressure on the Biden administration. You're listening to Bloomberg from Bloomberg Radio.

Coming up next, Texas Governor Greg Abbott gathers other Republican governors at the border to try to ratchet up the pressure on the Biden administration. You're listening to Bloomberg from Bloomberg Radio.

I think it's awesome because what's fixing to happen is that Greg Abbott is probably going to mop the floor with Joe Biden.

I think it's awesome because what's fixing to happen is that Greg Abbott is probably going to mop the floor with Joe Biden.

That was one of the protesters in a convoy that started in Virginia and travel through nine states before reaching Texas this weekend to rally in support of Texas Governor Greg Abbot's defiance of the federal government. More than a dozen Republican governors also travel to Texas to support Abbot and to call on Biden to do more to secure the border. Abbot slam the Biden administration for what he claims is standing in the way of Texas defending its own border.

That was one of the protesters in a convoy that started in Virginia and travel through nine states before reaching Texas this weekend to rally in support of Texas Governor Greg Abbot's defiance of the federal government. More than a dozen Republican governors also travel to Texas to support Abbot and to call on Biden to do more to secure the border. Abbot slam the Biden administration for what he claims is standing in the way of Texas defending its own border.

The president is obligated by laws passed by Congress to actually secure the border and deny illegal entry.

The president is obligated by laws passed by Congress to actually secure the border and deny illegal entry.

I've been talking to immigration law expertly on Fresco, a partner at Holland and Knight. Texas has already been deploying National Guard troops and state police officers since twenty twenty one on the border, and they started stringing up that wire in twenty twenty two. Explain what changed last month at Eagle Pass or Shelby Park.

I've been talking to immigration law expertly on Fresco, a partner at Holland and Knight. Texas has already been deploying National Guard troops and state police officers since twenty twenty one on the border, and they started stringing up that wire in twenty twenty two. Explain what changed last month at Eagle Pass or Shelby Park.

Well, what's happening is Texas is putting barriers up along private land that the federal government doesn't control. But the problem is those barriers are preventing the border patrol from accessing people crossing the United States. Which is it all depends how you look at it. Texas would say those barriers are preventing people from coming into Texas, so that's why they're there, and the Border patrol would say, no, that's preventing us from accessing the people try to come into Texas because we may need to give life saving care, or we may need to arrest them, or whatever the reason may be. And so you have this is completely opposite point of view depending on where you're looking at it. And so the federal government suit has said you can't do this. You can't have this blockade that prevents the border patrol from being able to patrol the border, and so you have an injunction right now or a stay essentially where five Supreme Court justices agreed. And now the question is, well, what is the Biden administration willing to do, because the only authority they have is to cut down this wiring, that's what they have. From that perspective, do they want to do that if it's going to lead to some sort of violent confrontation and so we haven't seen that happen yet, and that's the issue really at the end of the day. I mean, yes, they can hold the governor in content, but in order to hold the governor in contempt, even all of this is just paperwork. So fine, you hold the governor in contempt. Now what are you still going and trying to cut down the wiring? And if you are, that's where the violence could take place. So the court becomes irrelevant here, and this is where you saw some of these Sunday shows are people asking is that an acceptable concervative position to basically nullify a court and make them irrelevant, Because at the end of the day, what's going to have to happen is there's going to have to be a violent confrontation in order to bring down those wires. That's the problem that's happening in Texas right now, and it's unclear how is how that would end.

Well, what's happening is Texas is putting barriers up along private land that the federal government doesn't control. But the problem is those barriers are preventing the border patrol from accessing people crossing the United States. Which is it all depends how you look at it. Texas would say those barriers are preventing people from coming into Texas, so that's why they're there, and the Border patrol would say, no, that's preventing us from accessing the people try to come into Texas because we may need to give life saving care, or we may need to arrest them, or whatever the reason may be. And so you have this is completely opposite point of view depending on where you're looking at it. And so the federal government suit has said you can't do this. You can't have this blockade that prevents the border patrol from being able to patrol the border, and so you have an injunction right now or a stay essentially where five Supreme Court justices agreed. And now the question is, well, what is the Biden administration willing to do, because the only authority they have is to cut down this wiring, that's what they have. From that perspective, do they want to do that if it's going to lead to some sort of violent confrontation and so we haven't seen that happen yet, and that's the issue really at the end of the day. I mean, yes, they can hold the governor in content, but in order to hold the governor in contempt, even all of this is just paperwork. So fine, you hold the governor in contempt. Now what are you still going and trying to cut down the wiring? And if you are, that's where the violence could take place. So the court becomes irrelevant here, and this is where you saw some of these Sunday shows are people asking is that an acceptable concervative position to basically nullify a court and make them irrelevant, Because at the end of the day, what's going to have to happen is there's going to have to be a violent confrontation in order to bring down those wires. That's the problem that's happening in Texas right now, and it's unclear how is how that would end.

So is Texas then not strictly defying the Supreme Court order because the Biden administration hasn't go on there and said we want to go and cut these wires.

So is Texas then not strictly defying the Supreme Court order because the Biden administration hasn't go on there and said we want to go and cut these wires.

Correct, That's the problem is we're in this cold war where nobody's trying, say, heating the war yet because in the customs and Border protection, if they try to cut the wire, will this lead to a violent confrontation or will it just be permitted? And only when that answer evolved do we know if Texas is in contents of quart or not.

Correct, That's the problem is we're in this cold war where nobody's trying, say, heating the war yet because in the customs and Border protection, if they try to cut the wire, will this lead to a violent confrontation or will it just be permitted? And only when that answer evolved do we know if Texas is in contents of quart or not.

And in the meantime, Texas is preventing any migrants from crossing at that particular point.

And in the meantime, Texas is preventing any migrants from crossing at that particular point.

Correct, people are now dispersing into other parts of Texas and into Arizona and into California and in through the water. And so these things always operate in a sort of air in the balloon way where the air will go to a different part of the balloon. If you sleeze on another part of the balloon, but also the numbers are less because of the weather. You're seeing colder weather, and so we will see how this all ends up shaking up. But when the spring comes, is there's no new authority, there's going to be numbers, and we'll see if Texas tries to do this in other parts of Texas. The other thing that makes this complicated is all of that land is private land, and so there are private ranchers and landowners that may not want Texas doing this, or they may say, hey, look you're taking my property. You owe me a lot of money for doing this, and so that's where this stuff starts to get more complicated than in this area that's a park.

Correct, people are now dispersing into other parts of Texas and into Arizona and into California and in through the water. And so these things always operate in a sort of air in the balloon way where the air will go to a different part of the balloon. If you sleeze on another part of the balloon, but also the numbers are less because of the weather. You're seeing colder weather, and so we will see how this all ends up shaking up. But when the spring comes, is there's no new authority, there's going to be numbers, and we'll see if Texas tries to do this in other parts of Texas. The other thing that makes this complicated is all of that land is private land, and so there are private ranchers and landowners that may not want Texas doing this, or they may say, hey, look you're taking my property. You owe me a lot of money for doing this, and so that's where this stuff starts to get more complicated than in this area that's a park.

Abba has been trying to justify his actions at the border by calling this an invasion, referring to language and Article one, Section ten. Does that make his argument any stronger than say Arizona's was so many years ago.

Abba has been trying to justify his actions at the border by calling this an invasion, referring to language and Article one, Section ten. Does that make his argument any stronger than say Arizona's was so many years ago.

There are two arguments. One the we're just supplementing the federal government three sources and what Congress wanted the federal government to do. That's the Arizona argument, and that argument failed, and so what would be recalled wired is for the five justices Kavanaugh, Alito, Borsic Thomas, and Cony Barrett. It would require those fives to come in control and say, yes, we're going to overturn Arizona, which I don't know because Cony Barrett didn't do it with regards to this Eagle Pass case. So you start to think she would probably side with maintaining the Arizona president given that the basic ideals of the Arizona president are what led to this wire case where she ruled in favor of the federal government. So from that perspective, that one's not probably gonna work, and I think Texas now realizes this. So they switched to this invasion logic, which is that at the end of the day, the federal government has a duty to protect states from invasion, and if not, the states can take the matters into their own hands. But again, the invasion has to have a different character than the one that this is because the law is pretty clear there has to be a of the country that's doing the invading, and it has to be a declaration of war and all of these other things, and there's none of that. You know, there's times you can't say that there's a specific country who's engineering this for the purposes of invading the United States, because people are coming from everywhere, and so you know that's both a bad fact for the Bide administration politically, but for this legal case, it makes them much harder to argue there's an actual invasion per.

There are two arguments. One the we're just supplementing the federal government three sources and what Congress wanted the federal government to do. That's the Arizona argument, and that argument failed, and so what would be recalled wired is for the five justices Kavanaugh, Alito, Borsic Thomas, and Cony Barrett. It would require those fives to come in control and say, yes, we're going to overturn Arizona, which I don't know because Cony Barrett didn't do it with regards to this Eagle Pass case. So you start to think she would probably side with maintaining the Arizona president given that the basic ideals of the Arizona president are what led to this wire case where she ruled in favor of the federal government. So from that perspective, that one's not probably gonna work, and I think Texas now realizes this. So they switched to this invasion logic, which is that at the end of the day, the federal government has a duty to protect states from invasion, and if not, the states can take the matters into their own hands. But again, the invasion has to have a different character than the one that this is because the law is pretty clear there has to be a of the country that's doing the invading, and it has to be a declaration of war and all of these other things, and there's none of that. You know, there's times you can't say that there's a specific country who's engineering this for the purposes of invading the United States, because people are coming from everywhere, and so you know that's both a bad fact for the Bide administration politically, but for this legal case, it makes them much harder to argue there's an actual invasion per.

Se Lee and I also want to ask you about the situation in New York, which has been struggling with the nearly two hundred thousand migrants who have arrived in the city in the last two years. A group of migrants who attacked two police officers, and most of those have been released, some without any bail. Supposedly three took a bus out of the city. Only one remains in jail. Here's what Mayor Adams had to say.

Se Lee and I also want to ask you about the situation in New York, which has been struggling with the nearly two hundred thousand migrants who have arrived in the city in the last two years. A group of migrants who attacked two police officers, and most of those have been released, some without any bail. Supposedly three took a bus out of the city. Only one remains in jail. Here's what Mayor Adams had to say.

Have you assaught police officers on the street?

Have you assaught police officers on the street?

I believe if you've found guilty, you should be the federal government should do their job of deploying that person.

I believe if you've found guilty, you should be the federal government should do their job of deploying that person.

So there's a bunch of different issues. So there's the first issue of when you enter the United States, one of three things is happening with these individuals. Either they've actually gone through the process of establishing a credible fear that they are facing persecution, if they get supported back that's that they are free and they are able to walk around the United States while their case is pending. That's option number one. Option number two is they never even did that. There were just so many people on a specific day that they crossed that literally I just said to them, go into America and we'll figure out what your court date is later. And so that could be the group that they're in. That's an option. Or third, people could have fucking in that situation. But in any of those three scenarios, they're now here. What happens is if you commit a crime like the police beatings that we saw, there's two different determinations that happen. Number one, there is does the criminal entity, meaning in this case, New York want to put this person into bail or in detention, And that doesn't matter whether that person is a citizen or the person who has the most illegal status in history. That they have to make that decision based on the crime and the law. And so New York has laws that people criticize for being very weak on who gets bail and who has to be in detention. And so that's one issue that has nothing to do with the immigration status. So there's a first question, why is anybody, no matter what their status is, who's beating police officers not in jail? Fair enough? So New York doesn't put those people into detention. They're free. Now there's an ice question, will I put those people in detention? I certainly has the ability to put anybody at once in removal proceedings into immigration detention on the grounds that they are a danger to society. They certainly can do that. And the question is can I now find these people? And I think what happened was these people are scondent now and so it's a little bit trickier to find them. But if I find them, I certainly can put them in immigration detention while they're immigration removal cases pending. But it may not want to remove these people while they're criminal cases pending, because what you don't want to do. This is a misnomer that people make all the time. They say, why don't you just support the person and just end this all? But the problem is if you deport people without making them face their criminal sanctions, then what happens is, let's say somebody could murder somebody and you just support them so they never go to jail, and then one week later they're back in the US and they're a murderer. So you don't want that. You want the person in detention because you have to assume there's a high likelihood that they find some way to sneak back in to America. So you have to make them serve their criminal sentence. So you have to time this properly to have ice have the people in detention while they're waiting for their New York criminal things and whatever those New York criminal thingtions are over, then you proceed with the removal.

So there's a bunch of different issues. So there's the first issue of when you enter the United States, one of three things is happening with these individuals. Either they've actually gone through the process of establishing a credible fear that they are facing persecution, if they get supported back that's that they are free and they are able to walk around the United States while their case is pending. That's option number one. Option number two is they never even did that. There were just so many people on a specific day that they crossed that literally I just said to them, go into America and we'll figure out what your court date is later. And so that could be the group that they're in. That's an option. Or third, people could have fucking in that situation. But in any of those three scenarios, they're now here. What happens is if you commit a crime like the police beatings that we saw, there's two different determinations that happen. Number one, there is does the criminal entity, meaning in this case, New York want to put this person into bail or in detention, And that doesn't matter whether that person is a citizen or the person who has the most illegal status in history. That they have to make that decision based on the crime and the law. And so New York has laws that people criticize for being very weak on who gets bail and who has to be in detention. And so that's one issue that has nothing to do with the immigration status. So there's a first question, why is anybody, no matter what their status is, who's beating police officers not in jail? Fair enough? So New York doesn't put those people into detention. They're free. Now there's an ice question, will I put those people in detention? I certainly has the ability to put anybody at once in removal proceedings into immigration detention on the grounds that they are a danger to society. They certainly can do that. And the question is can I now find these people? And I think what happened was these people are scondent now and so it's a little bit trickier to find them. But if I find them, I certainly can put them in immigration detention while they're immigration removal cases pending. But it may not want to remove these people while they're criminal cases pending, because what you don't want to do. This is a misnomer that people make all the time. They say, why don't you just support the person and just end this all? But the problem is if you deport people without making them face their criminal sanctions, then what happens is, let's say somebody could murder somebody and you just support them so they never go to jail, and then one week later they're back in the US and they're a murderer. So you don't want that. You want the person in detention because you have to assume there's a high likelihood that they find some way to sneak back in to America. So you have to make them serve their criminal sentence. So you have to time this properly to have ice have the people in detention while they're waiting for their New York criminal things and whatever those New York criminal thingtions are over, then you proceed with the removal.

Every time I think I understand immigration law, something else happens that proves that I don't. That's why we have you, Leon, Thanks so much for explaining all the ins and outs to us. That's Leon Fresco, a partner hollanden Knight. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast Slash Law. I'm June Grosso and this is Bloomberg

Every time I think I understand immigration law, something else happens that proves that I don't. That's why we have you, Leon, Thanks so much for explaining all the ins and outs to us. That's Leon Fresco, a partner hollanden Knight. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast Slash Law. I'm June Grosso and this is Bloomberg