Judges Blast Trump Immigration Actions

21:02Leon Fresco:that this violates the entire statutory scheme of the Immigration and Nationality Act for a couple of reasons. Number one, there's literally, this is the weirdest thing, and I hate using this word literally, but here it is the appropriate use of the word. There is literally a provision in the Immigration and Nationality Act that says that you can't discriminate when you're giving out green cards based on the country that someone's from. It actually says it right there in writing, and that's interesting because that's usually within the context of what the administration is not supposed to do is it's not supposed to say give the green cards to this country as opposed to another it's supposed to be first come first serve within the confine of after you get more than seven percent from any one country you're capped that's fine that's a different part of the statute but other than that it's supposed to be first come first serve so they're saying look, there's a clear statute that says you can't do this.

22:01Leon Fresco:The problem is there's another statute which says that the president can ban whoever the president wants if the president thinks that's in the national interest of the country. And that's already been given some deference in the Trump versus Hawaii case from the first administration. So again, you have these dueling statutes. Which statute will win? Will it be the travel ban statute or will it be the statute that says you can't discriminate based on who you give green cards to? Now, what was interesting is that same argument was made in the travel ban case, but was rejected. But interestingly, the reason it was rejected was because the travel ban case back then was not a ban on green cards.

22:46Leon Fresco:It was a ban on all kinds of other visas, visitor visas, student visas, other kinds of temporary visas. But it actually wasn't a ban on green cards. And so this is going to be very interesting, is does this ban that's an actual ban on green cards violate the statutory language which says you can't discriminate in the allocation of green cards based on what country someone is from. So that's number one. And then number two, the fact that the underlying fear is that the people coming will be public charges, so to speak, meaning that they will rely on the federal government and the taxpayers for money.

23:23Leon Fresco:The point there is, look, Congress created a statutory scheme for this. They said that when that's true, there has to be a sponsor who is a U.S. citizen or a lawful permanent resident, and that person has to make a certain amount of money. And in that situation, if welfare benefits are obtained, then it's this sponsor who has to pay them back. They've agreed to do this. But that's the scheme. And the point is, you can't come up with another scheme now because you don't like the existing scheme. So that's the point of the argument.

23:55Alex Ebert:And how often do sponsors have to pay back welfare benefits? In practice, I can't even think of a case.

24:02Leon Fresco:I don't know of a case. I really don't know if a case exists where a sponsor has ever been asked to pay back the money that someone has obtained from public benefit. So it's a very interesting question in terms of why that's not happened. But that's the scheme. So we're going to see who wins within this context. Will they be correct that between the statutory language that says you can't discriminate on a particular country and the statutory language that says this is how you address this public charge concern, that that framework means you can't have the kind of ban that the president issued?

24:39Leon Fresco:or will the president be able to again succeed relying on his blanket banning authority that allows him to basically ban any foreign national from the United States for any reason, as long as he thinks it's in the interest of the United States. So that's the question. And this is going to be yet another instance where these dueling statutes are going to have to be analyzed.

25:02Alex Ebert:So a senior staff attorney at the National Immigration Law Center, which brought this along with other legal organizations, said that the regions and countries where immigration is banned under the new policy bore an eerie resemblance to quotas enforced by 1920 statutes that were abolished during the civil rights era, and that this was a pretext to limit legal immigration and to reinstate those old racial quotas. Correct.

25:34Leon Fresco:The quotas that existed basically at that time only allowed people from Europe to come to the United States and not people from Asia or Africa or South America or the Caribbean or anywhere else. And that's the language that I told you about, the language which said you can't discriminate on the basis of national origin anymore. That has to be a first-come, first-served allocation of green card. That's the language that ended the quotas. So the quotas existed until the 1960s, and then in the 1960s, that language was put in, which eliminated the quotas. And so the question is, what happens now? Can the president, through his travel ban authority, which doesn't just allow him to ban travel, but allows him to ban any entry of any kind by any non-U.S.

26:22Leon Fresco:citizen, can he use this in such an expansive way to basically redo the quotas of the pre-1960s era, or will the courts put some limitation on the president. And that is going to be a very interesting question.

26:37Alex Ebert:Another interesting ruling was the Ninth Circuit saying that the DHS secretary didn't have the authority to vacate TPS status for Venezuela and Haiti. Tell us why, because TPS status is something that's supposed to be temporary. So why can't she?

26:55Leon Fresco:Yeah, this has been a complicated case because this case has gone back and forth several times where there's been preliminary injunctions where the lower courts have said, hey, we know there's temporary protective status. What temporary protective status is, by the way, is a statutory provision that says that the president, if they think there's some sort of natural disaster or some sort of pandemic or something else in a particular country that in that situation, the president can say for 18 months, hey, people who are stuck here in the U.S. are not here illegally. They're temporarily protected.

27:33Leon Fresco:And then what's happened is every 18 months that gets renewed, renewed, renewed. And so then this question was, okay, what happened when those 18 months expired for Venezuela and Haiti? Is President Trump in some way bound to do something other than let them expire. And so there was a lawsuit saying that the Secretary of Homeland Security, Kristi Noem, exceeded her statutory authority in vacating and terminating the temporary protected status. And there's been injunctions saying they had to come back. And then the Supreme Court has said it doesn't have to come back. And so one of the things that's complicated is Secretary Noam didn't just let it expire.

28:15Leon Fresco:Had she done that, she might have actually had a better case. But she tried to vacate the existing temporary protected status. And so by doing that, the court said that she exceeded her statutory authority to vacate this. And then by doing that, is sort of basically using that as a mechanism to extend temporary protected status as much as possible. I don't think here the Supreme Court is ultimately going to have a lot of sympathy, especially when the time actually expires and there really is no temporary protected status left because the time has expired. And basically, I don't think the Supreme Court will say that there's any judge that can require a president to renew temporary protected status.

29:04Leon Fresco:So I think ultimately this is going to end up being much ado about nothing, but the Ninth Circuit is trying its best to keep the Venezuelan and Haitian population protected from deportation. But I don't think in the long run this is going to be successful.

29:19Alex Ebert:Texas has its own H-1B visa policy? So here's what happens.

29:23Leon Fresco:So let's go through this because this is a very interesting issue. So the H-1B visa is a visa for highly skilled foreign nationals to come to the United States to perform highly skilled work. It has a two-pronged test. The test is, is there a job that needs to be filled that that specific job requires a very specific degree? And then does the person who's coming to fill that job have that degree? Not some random degree, but that specific degree to do that job. If you can, you can get an H-1B visa. The H-1B visa, however, has a cap. It's 65 ,000 visas per year, plus another 20 ,000 if you happen to have a master's degree or above from a U.S.

30:07Leon Fresco:university. So 85 ,000, let's say. Now, here's what's fascinating. There are ways to get above that cap. And the main way to get above that cap is if the person applying for the H-1B visa, the company, sorry, or whatever, the petitioner, is either a U.S. university or it's a governmental institution. Those are the main ways that those institutions can exceed the cap. And so there are a lot of universities who exceed the cap and bring in a lot of people on H-1B visas. What are they bringing them in for? They're bringing them in to be professors, researchers. And the biggest one, and this is where this is getting really complicated, is that you may have noticed that a lot of state universities now provide a lot of health care all around the country in their hospitals and their hospital systems, et cetera.

31:02Leon Fresco:And so a lot of doctors and other medical professionals come on these H-1B visas. And they're doing a lot of important work where if you didn't have them, then these hospitals would be chronically understaffed. So what happens? You now have states like Florida and Texas saying, guess what? We are going to ban our universities from hiring anyone on an H-1B visa application, whether it's a professor, a doctor, a researcher, or anything else. And so this is what's interesting about this. There are certainly some H-1B visas that I've seen in some of these state universities that are frivolous. They're hiring an athletic trainer for the lacrosse team or something like that.

31:50Leon Fresco:And it's like, well, you really can't find an athletic trainer in the United States who can do this, that kind of thing. So there's some of that where you can say, okay, look, that's a little bit frivolous. But when we're talking about doctors and researchers and others, we're not, it doesn't lend itself to the political talking point that, oh, these people would be hired by, you know, Americans would be hired to fill every one of these positions if it wasn't for this. And so, yes, the states have it in their prerogative to ban their universities from hiring anyone on H-1B. But at the end of the day, I do think there's going to be some negative drawback from especially the healthcare fields in these universities, where they say, look, we weren't, there was no one we could get other than these people.

32:39Leon Fresco:What are we supposed to do now? And I think that's going to be very fascinating to see how it plays out.

32:45Alex Ebert:The complexities of the immigration law. Thanks so much, Leon. That's Leon Fresco, a partner at Holland and Knight. Coming up next on the Bloomberg Law Show. We'll tell you why the Pulitzer Prize Committee is demanding a lot of confidential reports from President Trump, including internal communications between the Trump White House and the Russians. I'm June Grosso, and you're listening to Bloomberg. Hello, hello. I'm Malcolm Gladwell, host of the podcast Smart Talks with IBM. I recently sat down with IBM's chairman and CEO, Arvind Krishna, and I asked him, how can companies use AI to its fullest potential to create smarter business?

33:28Alex Ebert:My one advice to them, pick areas you can scale. Don't pick the shiny little toys on the side. For example? If anybody has more than 10 % of what they had for customer service 10 years ago, they're already five years behind. If anybody is not using AI to make their developers who write software 30 % more productive today with the goal of being 70 % more productive. Yeah. So we are not asking our clients to be the first experiment on it. We say, you can leverage what we did. We're happy to bring out all our learnings, including what needs to change in the process, because the biggest change is not technology, it's getting people to accept that there's a different way to do things.

34:18Alex Ebert:To listen to the full conversation, visit ibm.com slash smarttalks.

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36:01Alex Ebert:The Pulitzer Prize Committee is demanding confidential records from President Trump, including an unredacted copy of Robert Mueller's report and internal communications between the Trump White House and the Russians. The committee is asking for the documents to defend against Trump's defamation lawsuit against them. Joining me is Bloomberg Law senior correspondent Alex Ebert. Alex, tell us about Trump's lawsuit against the Pulitzer Prize board.

36:30June Grasso:Yeah, Trump's Pulitzer Prize board defamation lawsuit is kind of a bang shot. So we all know about the reporting by Washington Post and New York Times into Trump connections with Russians during his 2016 presidential campaign. That reporting combined won Pulitzer Prize in 2018, and Trump was mad about that and constantly complaining about it. The Pulitzer Prize Board in 2018 issued a statement standing by it and saying that the reporting is fine and their investigations into the award said they're not going to change their position. Trump said that itself was defamation. And so he brought a lawsuit in Florida state court alleging that this defamation is harming his reputation.

37:20June Grasso:This was in 2022 when Trump was kind of in the wilderness and trying to come back from the January 6th debacle following the attack on the Capitol. And so he was in Florida licking his wounds and coming back. And this lawsuit has persisted until today.

37:38Alex Ebert:So what stalled this case even before he became president?

37:43June Grasso:There were lots of stalls in this case, and most of them were around questions of, do you even have personal jurisdiction here? Is this case even bringable? And efforts by the Pulitzer board to stay the case once Trump was a candidate for president and then became president. The Florida state courts, they handled all those things, said, nope, there's personal jurisdiction here. You know, Trump's a resident. He can sue the Pulitzer board here. And they took on the issues of the state as well and said, no, the president can decide whether or not he wants to spend his time, you know, bringing personal lawsuits in state court.

38:23June Grasso:And we're not going to interfere with that decision.

38:25Alex Ebert:Tell us about the documents that the Pulitzer board is looking for.

38:29June Grasso:Right. Right. So the first element of a defamation claim is the statement has to be false. Here, that means that the reporting into Trump's ties with Russians during the 2016 campaign has to be false. And so you're looking at sort of a who's who of communications from the Trump administration and Russian officials and all of the different reports that folks like Robert Mueller and future counsels have done looking into those ties. We're talking about confidential state secrets here, you know, that involve our spy organizations looking into things that Russians may or may not have done to interfere with our elections.

39:10June Grasso:Those things are not completely unredacted and publicly available. And so the Pulitzer board here is saying, hey, if you want to say that it is false that your campaign had connections with Russians, then you've got to cough up these records.

39:25Alex Ebert:And has the Trump administration refused to give in the records?

39:31June Grasso:We're at the beginning here, so we'll see what they do. But attorneys that we're talking with say that this could have serious implications for state secrets litigation going down the road. If the president is just going to say, hey, I'm bringing a personal lawsuit, therefore I'm going to disclose all of this stuff, that could cause some serious problems, right? So across the country, we have the Department of Justice intervening in cases as a third party to protect state secrets on behalf of the government. These are normally things where like Raytheon or Northrop Drummond are arguing in state court about like who owns a piece of scientific material, right, or some IP.

40:11June Grasso:And the Justice Department will intervene and say, hey, we can't disclose all this because some of this might be state secrets. protected things that we don't want foreigners to be able to see or other people in the United States. Those state secrets then are seriously protected, some of the most protected information by our government. And so the Department of Justice routinely intervenes to prevent this disclosure. Here we have the head of the executive, Donald Trump, potentially needing to disclose some of these things just so he can keep his defamation suit going in Florida. Or he could throw another big wrench in here and say, you're not entitled to this stuff.

40:51June Grasso:And then the court is left to say, do I view this in camera and let this go forward? And we have various precedent on this that say, that's not really workable.

41:00Alex Ebert:And it's a state judge. So does the state judge even have the security clearance necessary to look at these documents? Yeah.

41:11June Grasso:Different national security litigators that I've spoken with have looked into this and said, this might be the second time only that a state seeker's privilege will be advocated in state trial court, right? Because in federal court, we generally have, you know, federal judges with security clearance and the infrastructure to be able to view these things in camera. That's not the same thing in state court. It's not set up for that. And so there's a question of whether or not the judge and his staff would even have the sort of clearance needed to view these things in camera, not in front of the parties, in order to make sure that the secrets of the government are protected.

41:51June Grasso:And here we're talking about things that are routinely protected, right? Sources and methods of spy agencies, you know, looking into how foreign powers are trying to influence our government and the things we do here. So these are things that even the folks I've spoken with that are extremely skeptical of the way the government might classify things as, you know, protected or confidential, they say this might, you know, strongly qualify under any standard for that sort of protection.

42:20Alex Ebert:What would happen if they can't get the documents? Would the case be dismissed or put on hold?

42:27June Grasso:In a normal world, June, this would be a catch-22, right? We find ourselves with a plaintiff that is refusing to produce documents that are necessary for the defense to bring their defense to the judge and to a jury. And the judge would say, listen, no evidence here is being disclosed, therefore warrant to dismiss the case. The experts I've spoken to say in different circuits around the country, judges have come to that same conclusion, right? If you're not going to come forward with these documents, you can't maintain this case. We even have a decision from the DC circuit from Scalia that basically said it would be false, it would be, you know, a travesty to basically trick the jury.

43:15June Grasso:You know, we know that there are these documents out there and they would give the defense some sort of, you know, strong position, but we're going to ignore that and just let the plaintiff move forward. But this is 2026 and this is a unique situation because Trump is in control of those records. And so the experts we spoke with, you know, are wondering how the court is going to deal with this. You know, can they force the president to disclose this? And if the president, who has the sole authority to declassify this information, doesn't do it, does the court have the right to dismiss the case?

43:51June Grasso:It's an open question.

43:52Alex Ebert:Trump has brought several lawsuits against media companies during this second administration. Do we know how many?

44:00June Grasso:I'm not aware of the tally. I've kind of run out of fingers and toes on that. But one expert I've spoken with has said that just in the cases where Trump has alleged damages of some quantifiable amount, he's already demanded$65 billion. And a lot of this is over cases where the issue is elections that he's won. And so there's a question of, you know, how far a president can take this strategy and whether or not the normal defenses that you'd have in cases like defamation work in this sort of system.

44:38Alex Ebert:Yeah. And the problem is a lot of the media companies have settled with him. Let's turn to another case, though. Start by reminding us about that landmark more than$38 million verdict against Chiquita. Sure.

44:54June Grasso:This landmark verdict is both large in its amount, but also was sort of a shock across a particular legal community, and that's the human rights community. So it was the first time that a U.S. corporation was held liable in U.S. court for human rights abuses. And what we have here basically is the theory of negligence, where Chiquita was found liable for funding paramilitary groups that assaulted and killed people in the region where Chiquita operated. The organization was taking money from Chiquita, and Chiquita was saying, this is basically a protection racket. We can't be responsible. We were basically putting a rock and hard place.

45:38June Grasso:We either have to pay this money or we can't operate. And the plaintiffs were saying, no, you knew what was happening here when in the 90s, mostly, we had these paramilitary groups that were killing hundreds, potentially thousands of people in the region where you get all of this fruit for Chiquita. The verdict came down and nine different individuals were found to have damages. These are survivors of the victims of the people killed by the paramilitary group. And this is just a drop in this massive ocean of potential claims, right? This is a bellwether trial, and there are about 4 ,500 plaintiffs suing the company.

46:20June Grasso:So we're looking at potentially billions of dollars of damages, but also this first of its kind verdict where these plaintiffs could potentially point to other cases and say, hey, this is a roadmap for you to sue other US corporations if they're doing dirty things abroad.

46:38Alex Ebert:Now, there's an appeal challenging the verdict based on the jury receiving faulty instructions. Right.

46:46June Grasso:The issue right now is a really complex one involving how you make that work. So the court decided to take Colombian law and base the trial off of that. But because Colombian law wouldn't fill all of the gaps in the way that we can prosecute these negligence cases, the court had to gap fill, right? This is the way that we do this in the United States. When we do this selection of law thing, we have to fill the gaps when we need to. And so when it came to liability here, the big question before the trial court was, how do we fill the gap in Columbia law when it comes to the liability of Chiquita?

47:27June Grasso:And the trial court, they say that they, They, unfortunately for the plaintiffs, decided to use federal common law when they did that instead of Florida common law. And so the question for the Court of Appeals was, is that a big enough of a problem that it undermines the jury verdict here?

47:48Alex Ebert:Tell us about some of the concerns of the appellate judges.

47:51June Grasso:Yeah, some of their concerns were, you know, if you have the wrong standard in these jury instructions, then whatever outcome the jurors come to, that might not be the law. And so the plaintiffs were arguing, hey, the federal standard here and the state standard are not that different. And if you look at the facts, you know, we're talking about extreme facts that would apply to either standard. But Chiquita, and it seems like they got the ear of the judges, is saying, listen, there's a pretty big difference when it comes to negligence standards. If you have a difference between causing something as the standard or being a factor in something, then that's a big gap.

48:29June Grasso:That's a gulf that the jury can jump through. And so they're arguing that state law would say you have to really be more of a but for cause of something to be liable here. And the federal standard is more like you have to be a factor in the deaths and the injury of these plaintiff's family members.

48:48Alex Ebert:Thanks, Alex. That's Bloomberg Law's Alex Ebert. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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