Trump Can Deploy Troops to Portland But Not to Chicago

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2:05He's a citizen! He's a citizen! You don't know what's going on, so get the f*** back! Federal Judge Sarah Ellis said the images she's seen indicate her order restricting ICE agents' use of force was being ignored. The judge issued a new order on Friday that federal agents have to turn their body cameras on when making arrests or interacting with the public. Here's Illinois Governor J.B. Pritzker.

2:31Leon Fresco:I think the judge reacted to that properly by ordering that now the federal agents are required to have body cameras on them because they clearly lie about what goes on. Judge Ellis also ordered immigration officials to testify in her courtroom today and answer questions about the aggressive tactics. My guest is Leon Fresco, a partner at Holland & Knight and an expert in immigration law. Leon, explain what's been happening in Chicago with ICE. So what's been happening in Chicago is all based on an operation called Operation Midway Blitz. And that operation started early in October, where there was a deployment of all kinds of federal troops.

3:18There was ICE, there was CBP, there was National Guard troops into the Chicago area to try to ostensibly stop violent protests, help immigration enforcement do their job, stop crying. There's a lot of different justifications that were given for this. But in any case, there was immediate lawsuits by the state of Illinois and the city of Chicago. and there's multiple findings, one that had to do with the use of force and how people were operating. And so there were orders that were given by the judge with regard to having to use body cameras so that the agents wouldn't just be operating without any accountability there.

4:03And the judge was hearing arguments today about the fact that body camera usage wasn't happening and was basically saying, look, you're going to be held in contempt of court if you don't use these body cameras. Then there's also some debate about tear gas being used and whether that's proper to be used during the protest. And so the judge also had ordered the agents to stop dispersing peaceful crowds and ban the use of tear gas on people who are in a threat. And so both of those are part of this overall litigation that involves also limitations on the use of the National Guard, but specifically with regard to the use of force by federal agents, this is the immediate concern is the use of body cameras, especially when there's use of force, and also the use of tear gas and chemical agents without proper justification for it.

4:57Yeah, so last Friday, the judge issued the additional order about the body cams because she was concerned that ICE wasn't obeying her first order that banned the use of tear gas and other munitions against protesters who are not posing an immediate threat. And then she sees all this video of the use of tear gas that the ICE agents didn't listen to her. Correct. That was the concern. She was telling the government attorneys in court, hey, are you following my order? And she said she was, quote, a little startled after seeing, as you said, these TV images of street confrontations that involve tear gas.

5:41And so they had witnesses from ICE and from CBP saying that they are all going to be wearing body cameras now and that this isn't going to be something that's going to happen any longer, that they will respect their order. But we'll see, again, if there's just another injunction that's issued or if there's actually a consent order that's issued or where this judge is going to go here. But But certainly, I think no matter what side you stand on this, there's certainly been an escalation in detention in Chicago. And we will have to see how this all plays out, whether the courts will be able to resolve this escalation on their own or how it will end up getting resolved.

6:21The ICE agents are camouflaged with masks. You can't tell who's who. Could she issue individual contempt citations against specific ICE officers? Absolutely. I mean, at the end of the day, there's multiple remedies here in terms of, yes, one, contempt of court against the ICE leadership, first of all, if she can't identify the individual people, but also against the individual ICE agents. And then there are certainly claims that individuals can file under the Federal Court Claims Act or Bivens, which is the remedy that's created when federal officers personally violate constitutional rights. And so from that perspective, there are multiple claims that can be made both individually and separate lawsuits.

7:11But even in this area, contempt orders can be issued. And the thing with these contempt orders is those can either have a financial component to it or they can actually have in a very unlikely but theoretically possible scenario a prison component to it. And so from that perspective, it does benefit people to follow these orders, because unless they get those orders overturned by an appellate court, the judge has that kind of contempt authority. Is the Trump administration, are they contending that the judge doesn't have the authority to tell them how to carry out their actions? Well, I think this is all going to be part and parcel of the litigation as it goes to the Supreme Court, is they're going to say that the judge certainly has authority in terms of issuing an injunction and enforcing their injunction.

8:03But they're going to say that at the end of the day, the judge's injunction was wrongly issued, that there isn't this constitutional right to have body cameras. That's going to be the argument the Trump administration makes, is that may be something that Congress can put as a requirement, or that may be something that the agencies themselves can put as a requirement, but whether the judge actually has an enforceable manner in which to enforce this body camera obligation, or even the tear gas obligation, they may say, look, the judge exceeded her legal mandate under either Bivens or Bivens. or under the Federal Court Claims Act to come in and say, here are my specific remedies for these issues.

8:51A judge can perhaps say, here is a specific violation that occurred and punish that specific violation, but to issue an injunction with regard to how one can use force or with regard to how one has to document that use of force, that may be considered an overstepping of the bounds, but we'll have to wait and see. I mean, judges have issued those kinds of orders in the past. And we'll just have to see not so much the Seventh Circuit, but if the Supreme Court actually wants to weigh in and limit the abilities that the judges have to issue these prospective enforcement orders that limit the enforcement authorities of the federal government.

9:31As of today, we have conflicting decisions from the Seventh Circuit and the Ninth Circuit. So let's start with the Seventh Circuit's decision from last Thursday extending the order that blocks Trump from deploying National Guard troops in Chicago. And the three-judge panel consisted of a Trump appointee, an Obama appointee, and a George H.W. Bush appointee. Well, again, this was the case that involved both the federalization of deployment and the National Guard deployment in the area of Chicago or of the state of Illinois. And the issue was, first of all, was this subject to judicial review? Because the Trump administration has been arguing that this isn't subject to judicial review and that this should be an unreviewable discretion.

10:26And the court said, no, we actually, when the president wants to operationalize a state guard in contravention of the wishes of the state, that that is a reviewable situation that has specific fractal predicates that the courts can review and that the president's discretion is not absolute there. And so then it starts asking the questions about the statute, which talk about when a president can operationalize the state National Guard in contravention of the wishes of the state. So that is there a rebellion or is there danger of rebellion? And the court rules here that, no, there was protest, but those protests aren't rebellion.

11:09There may be, you know, some political opposition, but that's not designed to actually overturn the government of the United States or to have a coup or some kind of insurrection. So that's not going to be enough to do that. And then it asks, okay, well, is there an inability to execute federal laws? And here the courts basically took the language of DHS against it, where DHS has been saying, hey, we're having record immigration enforcement, we're having a lot of success in arrests and deportations. And so the court says, well, if you have all of that record success, then this must mean you don't have an inability to execute the federal laws.

11:50And so then you don't need this. ICE can operate without the need for guards to protect it. And then also the court ruled that the local and state law enforcement was able to manage their protests without this federal military aid. So you took all of those factors and the court ultimately ruled that the Seventh Circuit ultimately ruled that the district court judge was correct, that there was a harm to Illinois' constitutional right by taking the Guard and operationalizing it against Illinois' wishes and that that harm outweighs the federal interest in deploying the Guard. And so they said, yes, you can federalize the Guard, but you can't deploy the Guard in Illinois pending further proceedings.

12:34And so now the Supreme Court is looking at it and briefing is scheduled to be finalized by the end of Monday, the 20th, and then the Supreme Court will decide what it's going to do. Is it going to issue a temporary stay that allows the guard to keep operating? Or is it going to issue an order saying we're going to consider this on an expedited basis and not issue a stay? So it'll be very interesting to see this week what happens. Could they just ignore it? They could ignore it. We're not taking any action at all. They could just take no action at all. And, you know, hey, we are in a government shutdown, so you never know.

13:10They may say, hey, look, we're not getting paid. We're not doing any cases. Well, we're not getting paid. But I doubt that will happen. If I had to make a prediction, I do think they will probably, as they've been very differential to the president, at least conduct expedited briefings to come up with a decision. If not, even more likely, potentially just allow the president to continue with this deployment without any explanation, subject to a better briefing in the meantime. Because I think what worries them is what if things really did get out of hand and there was an injunction and now you couldn't do anything.

13:49And so I think the Supreme Court might have this practical concern and they'll say, look, at the moment, let's not place any limitations on deployments. And then let's have some very detailed briefing where we can figure this out long term. That's where I think this is most likely to go if I had to make a prediction, but I couldn't say for sure. And coming up next, we're going to talk about the Ninth Circuit's decision, which is the opposite of the Seventh Circuit's decision, meaning that Trump can send federal troops into Portland, Oregon, but not into Chicago, Illinois, at least at this point.

14:25That's coming up next on the Bloomberg Law Show. I'm June Grosso, and you're listening to Bloomberg.

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16:40Leon Fresco:The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. It's a major boost for the administration's effort to send the military into Democratic-led cities. The Ninth Circuit Court of Appeals, in a divided opinion, is allowing President Trump to deploy troops to Portland, Oregon to counter protests against his immigration crackdown.

17:30The two-to-one appellate decision focused on a series of violent acts by protesters starting in early June at a single ICE facility outside downtown Portland. The city and state argued those incidents were isolated and had been handled effectively by local law enforcement. But the appeals court agreed with the administration. Now, last week on Thursday, the Seventh Circuit Court of Appeals ruled that the Trump administration could not send troops into Chicago, Illinois. I've been talking to immigration attorney Leon Fresco. Leon, tell us about this Ninth Circuit decision. The same basic facts, different city, different court?

18:13Correct. So the Ninth Circuit actually ruled differently than the Seventh Circuit. And even though it's the same statute, 10 U.S.C. 12406, which is the federalization of National Guard statute, the difference here is that two out of the three judges, they were judges appointed by Trump on the Ninth Circuit, ruled that the president's actions were likely lawful under this Section 12406, which permits federalization when the president is, quote, unable with the regular forces to execute the laws of the United States. And what the court ruled here is they basically created the standard, and we were talking about this with the Seventh Circuit and the Supreme Court, what standard would be created in terms of deference, and they decided to use a standard called Colorable Assessment of the facts and law within a range of honest judgment.

19:06And so if the president has a colorful assessment of the facts and law within a range of honest judgment, which is a highly deferential standard, then the president's assessment that there is violence that needs to be dealt with is going to be deferred to. And so that executive judgment in national security matters was deferred to here, and the court issued a stay saying that the National Guard can continue in the Oregon case. So did they just make up that standard to apply that standard here? Basically, obviously, there wasn't a case like this before, and so the court took a standard, by the way, a very similar standard in the visa adjudication front.

19:50When you try to sue for visas. It's this sort of facially legitimate and bona fide standard. And even that standard has been taken away almost to where there's no, depending on the context, there's basically no judicial review. Here, they've taken a very similar deferential standard, colorable assessment of facts and law within a range of honest judgment, similar concept, basically saying, unless the president is telling you they're acting illegally, if they basically have any facts to support it, then you defer to the president. And here the court said, look, there were facts. There were months of riots in Portland.

20:28You didn't just have to look at the minutes before the judgment. You could look at the months before. And because of that, the court said there was sufficient evidence here to permit deference and to permit the National Guard to be deployed. So is it because of a difference in the facts in the two cases or a difference in the standard that the court applied? It's a difference in the standard of deference being given to the president. So in the Seventh Circuit, they just analyzed the facts under basically a clearly erroneous standpoint. And they said the district judge wasn't clearly erroneous in deciding that there were no reasons that the federal law couldn't be enforced in the Chicago area.

21:11Here, the court added deference. It said, you can't just look at it that way. You actually have to start with a standard that the president wins unless you show that the president wasn't within this highly deferential standard of colorable assessment of the facts and law within a range of honest judgment. And so the court did look at the facts of Oregon and said, look, Look, here in Oregon, there was a situation where there were months of assaults and arson attempts and doxing of federal agents. And so because of that, that was enough to trigger this, and they're not going to disturb the president's determination there.

21:49That was two to one. There was a dissent where the dissent said that at the end of the day, there isn't any deference that's permitted in this. There wasn't a present emergency. The protests were small and peaceful, and the states have sovereignty, and there's constitutional limits. Just all the stuff the Seventh Circuit said. And so we'll see on an en banc or what happens with the Supreme Court now anyway. Probably this case just sits there as persuasive until the Supreme Court decides something. But lots of wait and see. The judge who dissented a Clinton appointee, Susan Graber, suggested a swift en banc review.

22:37Quote,

22:58play out the string in the way the schedule works. And so here you would normally ask for en banc review. You'd ask for it here in this case. Okay. So Leon, so do you think that the Trump administration will now jump to the Supreme Court and say, hey, we have two conflicting opinions? Well, they're already there. The briefing was already required of Chicago as of the end of today. So I do think they'll do a notice of supplemental authority that says, hey, here's this great Ninth Circuit decision for us. So please let us know what's going on. Let's talk about some other immigration issues. There's a new report that nearly as many migrants have died in detention so far this year than over the four years of the Biden administration.

23:41So you've had ICE reporting 20 detainee deaths in custody since Trump took office compared to 24 deaths in the Biden administration. There are lots of complaints about the conditions in ICE custody. I would say there's multiple factors going on. So the first and most important is when you have more people in custody, more people will perish in custody because that's just an actuarial table situation. And so you have more people in custody than ever before. You have over are 60 ,000 people in custody right now. And that was never anywhere close to that in the Biden administration. You have to remember that during the first two years of the Biden administration, you were dealing with COVID.

24:29And so there was very few people in immigration detention at all during the COVID era. So that's one issue. And then the second issue is during the last two years, the detention centers were much more short term in terms of what they were doing is taking people who had come across the border, detaining them for some period of time, and then either immediately removing them or letting them into the United States, which was called catch and release. And so from that perspective, you're going to have a lot fewer deaths just because the amount of time in detention is much lower per person. So even if you have a lot of people, the amount of time matters.

25:10But now you have more people for more time. You have people being detained until they either win their case or they are deported. You have more people in detention, you have more people in detention in facilities that perhaps cannot hold that many people, and you have a shortage of health professionals. ICE admits that, so they're hiring over 40 new health professionals, including doctors, nurses, psychiatrists, and pharmacists to try to meet this shortage of care, and so that's what's causing the deaths. You have more people detained for a longer period of time with fewer health professionals.

25:48This is unfortunately going to lead to more deaths of people in detention. A terrible situation, a terrible situation all around. Let's talk about another report, also bad news. A new study released Friday said the immigration enforcement policies will decrease the country's workforce by 15 million people over the next decade. I mean, is this being considered at all in Trump's immigration crackdown, the need for workers? So this is kind of a tricky subject, I would say, amongst everybody in this space, because there are so many subtexts to this. You have, first of all, some groups of people who say, that's great, we want fewer people.

26:35and we want fewer people because we think that fewer people means that there will be a higher demand for the workers that are here, which will raise the wages of workers that are here. And yes, there's certainly some truth to that. But remember that the economy is not static, meaning there's not just a set number of jobs, because if that was true, then whatever the population was in 1800, we would have unemployment that is equal to the amount of people we have now in 2025, minus the amount of people in 1800. So it obviously doesn't work that way. It's not that when there's more people, there's more unemployment, because those people create jobs, they need things, they need air cuts, they need mechanics, they need plumbers, etc.