Weekend Law: Texas Maps, ICE Profiling & Agency Power

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1:54Mark, get wise. T's and C's apply.

2:00This is Bloomberg Law with June Grosso from Bloomberg Radio. There being 95 members present, a quorum is not present. For the third time in a week, the Texas House of Representatives was unable to reach a quorum on Friday as dozens of Democratic lawmakers continued their walkout to block an unusual mid-decade redistricting in the state. It's designed to give Republicans five additional seats in the midterm elections. But despite arrest warrants, threats of prosecution and removal from office, the Democrats who left the state, like Representative Chris Turner, have shown no signs of buckling. This is a nationwide fight, and we want everyone in the country to understand what the stakes are.

2:48So Greg Abbott can make all the threats he wants. We're going to continue to fight. Largely unnoticed, with the focus on Texas' voting maps, is that the Supreme Court has indicated it will consider outlawing the use of race in drawing voting maps, setting up a showdown with implications for dozens of congressional districts with predominantly minority populations. My guest is elections law expert Rick Hassan, a professor at UCLA Law School. So Rick, Texas already gerrymandered its maps in 2021, and that's still in the courts. Is what it's doing now trying to redistrict again to get five extra Republican seats, is that constitutional?

3:31Well, that remains to be seen. What's going to happen if Texas draws its districts again is they will almost certainly be challenged as violating either the Voting Rights Act or as violating the Constitution's prohibition on racial gerrymandering. And that'll get tied up in the courts, just as the current round of redistricting is going to get tied up in the courts. What the federal courts are not going to do is say it's unconstitutional as a partisan gerrymander that is drawing the district lines to favor Republicans over Democrats, Because back in 2019, the Supreme Court decided a case called Rucho v.

4:07Common Cause, where the court said that there are no standards to judge under the Constitution whether partisan gerrymandering goes too far. Several blue states have threatened retaliatory redistricting, but two key states, New York and California, have commissions drawing up the maps. So would they be able to retaliate in time for the midterms? Well, as far as the California case goes, which is the one I'm most familiar with living here in California, the way that registering could be done consistent with state law in the middle of the decade would have to be through a voter passed measure. Because voters earlier passed a measure, actually two ballot measures, establishing a nonpartisan or multipartisan commission and then extending that commission's job to include drawn congressional districts.

5:00To overturn a ballot measure in California, you need a new ballot measure. So what the legislature and the governor are talking about doing now is drafting a new redistricting plan and putting it before voters in a special election. If it passes, the new redistricting plan would be in effect. And then that could be challenged in court. But I think that, again, because partisan gerrymandering is not something that federal courts will police, there wouldn't be much of a federal basis unless you can make an argument, again, like under the Voting Rights Act or as a racial gerrymander, the districts somehow are...

5:30illegal. It's sort of startling to hear the Republicans in Texas and the president say, you know, we're doing this to get more seats. Well, one reason why we've seen legislators in Texas and earlier in North Carolina say, we are doing a partisan gerrymander, like proudly admitting it, it's because they're trying to deflect the argument, no, you're doing this on racial grounds, you're doing this to make it harder for black and Latino and Native American voters to elect their candidates of choice, which could raise a Voting Rights Act question or could raise a racial gerrymandering question under the Equal Protection Clause.

6:03So if the Supreme Court says we're not going to police politics, but we are going to police race, then of course they want to say if they're trying to defend it, we're just doing politics. And so the courts have to try and sort that out, which is a very difficult thing to do when in a place like Texas, minority voters are much more likely to vote for Democrats and white voters for Republicans. As far as the Supreme Court policing race. The justices are ordering re-argument of a case that was argued in March involving a Louisiana congressional map that created an additional majority Black district.

6:38What are the implications? So what we're talking about here is a case called Louisiana versus Calais, and it was already argued last March. And it was one of these cases where the Louisiana legislature, thanks to an earlier lawsuit, drew a second congressional district where black voters could elect their candidate of choice to a congressional district. And the argument in the earlier case was you had to draw the second district to comply with Section 2 of the Voting Rights Act. Well, then a new group of voters came in and they said, hey, when you drew that second district, you made race the predominant factor in drawing those lines.

7:15And you don't have a compelling reason to do so, and therefore you're committing a racial gerrymander in violation of the 14th Amendment's Equal Protection Clause. Back in March, the court heard argument in that case where the main issue was, was race really the predominant factor, the main reason why the second lines were drawn the way they were, or was it really about politics? If it's really about politics, then it's not a racial gerrymander. Again, I find this distinction nonsensical when you have so much overlap between race and party in these southern states. But it looked like yet another in a series of cases where the court's deciding whether race or party predominates.

7:51But then at the end of the Supreme Court's term in June, rather than decide the case, the court issued a somewhat unusual order saying, we're going to hear re-argument in the case. We're going to want additional briefing, but we're not telling you yet what we want the briefing on. And then it was not until after 5 p.m. August 1st, Friday night news dump, where the court issued this kind of obscure cryptic order that I read as really asking the question whether Section 2 of the Voting Rights Act remains constitutional. And the way this comes into the case is, if race did predominate, then the only way you can do that in drawing district lines is if you have a compelling reason to do so.

8:30And the compelling reason that has been considered is, well, the Voting Rights Act made me do it. I had to do it to comply with Section 2. Now the court wants to hear maybe it's unconstitutional to apply Section 2 and make race the predominant factor when you're drawing these district lines. So it really brings these two lines of cases, the Voting Rights Act cases and the racial gerrymandering cases together in a way where the Voting Rights Act may lose. And the Supreme Court appears poised to consider striking down the second big pillar of the Voting Rights Act after it had already struck down the first pillar in 2013 in the Shelby County v.

9:10Holder case. Many of the court's conservatives have been what you might call hostile to the Voting Rights Act, and some seem to think that the Voting Rights Act no longer provides a legitimate basis for mapmakers to intentionally create majority black or majority Hispanic districts. Well, so the most recent piece of evidence we have on what the court thinks about the Voting Rights Act, aside from this order that came out in the Louisiana case, is a case that was decided a few years ago out of Alabama involving very similar facts of the Voting Rights Act requiring the drawing of an additional black majority district.

9:48And in this case, Allen v. Milligan, the Supreme Court on a 5-4 vote upheld the requirement that these districts be drawn. The two conservatives who were in the majority with the three liberals on the court were Chief Justice Roberts and Justice Kavanaugh, making it a 5-4 decision with Justices Gorsuch, Barrett, Alito, and Thomas in dissent. But Justice Kavanaugh, in the majority, wrote separately to say, I'm intrigued by the argument that maybe Section 2 is no longer constitutional because of the passage of time and the changes in political conditions. This isn't the case to decide that, but there may come a case down the line where we need to address that.

10:25And I think now this Louisiana case is that case. So Kavanaugh could prove to be the fifth vote. And Roberts, who has shown some hostility in Voting Rights Act cases in the past, including the Shelby County case I mentioned, could be a sixth vote. If the court divides along party lines, along ideological lines, the Voting Rights Act Section 2 could either be whittled down or killed off. And so what started off as a pretty small, not blockbuster case out of Louisiana could turn out to be the most important voting rights case of this decade. I mean, that was just a few years ago. Why do you think the court has reached this sort of monumental moment or decision now?

11:10Well, you know, John Roberts likes to move slowly. Let's just take the killing off of Section 5 of the Voting Rights Act, which happened in Shelby County. That was the provision that said the states with a history of racial discrimination in voting need to get approval before they make their voting changes to make sure that minority voters would not be made worse off. Congress renewed Section 5 in 2006. The Supreme Court first took up the issue of overturning Section 5 in 2009 in a case called Northwest Austin Municipal Utility District No. 1 v. Holder. And in that case, the court punted on the question, but strongly signals that in a future case, it could strike down Section 5.

11:51It was not until 2013, right? So you're talking about seven years after Congress acts that Roberts was finally ready to pull the trigger. And so Roberts moves slowly. He whittles things away. And again, the court in the Louisiana case could whittle it away at the Voting Rights Act, make it essentially toothless without striking it down directly. But I think what's coming is not likely to be good for the Voting Rights Act. So you think they might strike it down completely? They might strike it down completely, or they might say it's unconstitutional as applied in Louisiana, and then it will take time to figure out, well, what does that mean?

12:25How does it apply in other cases? That would be much more of a John Roberts faux minimalist move, looking like they're moving slowly. But in fact, you know, I was telling my editor of the piece that I wrote, Slate, about this, that, you know, the media loves to cover the car crash, the Texas redistricting, you know, legislators getting on planes. And that's great visuals, great story. But the Supreme Court does slow poisoning. And so it's very hard to cover. So here's an order that's issued, you know, Friday after 5 p.m. in August. I mean, who's going to cover it on the weekend about a case that they're going to hear arguments about probably sometime in December or maybe in January and then they'll issue an opinion in June that will be very hard to understand.

13:11So the court is still doing a lot of damage, but it does it in a way that is much harder to cover and much harder for the public to grasp. But it does look like this case could end up being one of the blockbusters of the next Supreme Court term. Thanks so much for joining me, Rick. That's Professor Rick Hassan of UCLA Law School. I'm June Grosso, and you're listening to Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. DoorDash, the largest food delivery company in the U.S., is building its own delivery drones and has gained the necessary FAA approvals to operate them commercially.

13:53The latest in its effort to delegate more orders to robots as a way of cutting delivery times. Bloomberg's Natalie Lung reports the company says it has been conducting pilot programs with various restaurants, some of which have seen their order volume grow during the test period. The effort marks an expansion of DoorDash's in-house robotics efforts to reduce reliance on human couriers for some orders, as their wages constitute a key expense to the business. Drones are also a way for DoorDash to cut delivery times on orders from more remote locations that some dashers may not want. That's the Bloomberg Tech Minute brought to you by ChatGPT.

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15:10Elevate your wins with Adio. Start your free trial at adio.com slash iHeart. Hey, everybody. This is Kevin. This is Nick. Hey, this is Joe. From Hey Jonas. You know, I recently learned that every 36 minutes, another child in the U.S. is diagnosed with cancer. Think about that for a second. Some of the bravest warriors you will ever meet aren't professional athletes or superheroes. They're kids in this fight. And every day these young warriors face challenges most adults couldn't imagine. Yet they continue to show up with incredible courage, determination, and hope. That's why we're proud to support Hyundai Hope on Wheels.

15:42The past 28 years, with support from Hyundai, their dealers, and every new Hyundai sold, Hope on Wheels has contributed over$300 million to childhood cancer research, helping save more than 40 ,000 kids. But we're not done yet. We need your help. Together, let's bring every warrior home. Learn more at HyundaiUSA.com slash Hope on Wheels or ask about Hope on Wheels at your local Hyundai dealer. Los Angeles has been in a battle with the Trump administration over its aggressive immigration enforcement. Mayor Karen Bass has repeatedly called out ICE, saying its masked agents in unmarked cars were grabbing suspected undocumented migrants off the streets in what looked like kidnappings.

16:25We know that Los Angeles is the test case and we will stand strong. And we do so because the people snatched off city streets and chased through parking lots are our co-workers, our neighbors, our family members, and they are Angelina. In a fast-moving case, a federal judge found that there was, quote, a mountain of evidence that ICE agents' tactics were violating the Constitution. She issued an order barring agents in L.A. from stopping and questioning people on the basis of race or ethnicity, their speaking Spanish or English with an accent, the type of work they do, or their presence at a particular location.

17:06Three weeks later, the Ninth Circuit Court of Appeals turned down a Trump administration appeal and left the judge's ban almost completely in place. And six days later, on Thursday of this week, the administration asked the Supreme Court to lift the ban. Joining me is immigration attorney Leon Fresco, a partner at Holland & Knight. He was the head of the Office of Immigration Litigation in the Obama administration. Leon, explain what the district judge ordered in the L.A. case. Well, the original case involved the challenge to something that was called Operation at Large, which was a federal immigration enforcement initiative in Los Angeles.

17:47There were these ICE contact teams targeting locations such as car washes and Home Depots and other places believed to employ undocumented workers. And there was a lawsuit claiming that these roving patrols detained individuals without reasonable suspicion, violating the Fourth Amendment. And the district court had held on July 11th that the plaintiffs were likely to succeed in proving unconstitutional seizures. So the judge restricted federal agents from conducting these ICE raids and stops without a reasonable suspicion. So what that means is that instead of walking around and trying to say this person looks like somebody that's not here legally, which has a sort of dubious application that people get worried about because they say, well, how are you making those decisions?

18:39what they're trying to do is convert ICE back into a list sort of agency where it says, we know today we're going to go after person one person, two person, three person, four person, five. And then they go and they look for these people because they know they're here undocumented rather than just grabbing people in the middle of the street. And so that's really the end goal of this lawsuit. And so, yes, there are times where they will still be able to pick people up because they'll have a reasonable suspicion for another reason other than they're on a list. But mostly this limits ice to the sort of list based enforcement.

19:19And what was the government's argument in defense of these tactics at the Ninth Circuit? They said two things. They said, first of all, that the organizational plaintiffs in the case didn't even have standing to bring the case. And they also said that, in general, they weren't violating the Fourth Amendment because they have the ability and the right to enforce immigration law. They have the right to question anybody about their lawful presence in the United States at any time. That's what the statute permits them to do. The Ninth Circuit said first that the organizational plaintiffs had standing because they showed that these kind of roving patrols forced them to divert their resources instead of carrying out other missions of supporting immigrants' rights in the community.

20:06They had to move to divert the resources into dealing with these enforcement actions. So that was the standing issue, and they said there was standing. But they also said that with regard to these claims about reasonable suspicion and Fourth Amendment violations caused by ICE officers roving around looking for people, they said that, yes, that does also seem to have a likelihood of success enough that they would not say the district court's ruling. It was a 3-0 decision. And so the court basically allowed almost all of the ruling to take place, except there was one line in the injunction that prevented ICE from even asking individuals about their immigration status, absent reasonable suspicion.

20:50that was paid. They were allowed to still do that. That was considered overbroad and problematic in terms of enforcement and constitutional interpretation. But the rest of the injunction was allowed to continue. So the judge ruled that ICE can't detain people based on their apparent race or ethnicity. So speaking Spanish or accented English or being at locations such as Home Depot parking lots. What does constitute reasonable suspicion then? The main thing that people who file this lawsuit basically are trying to limit ICE is to say, you have to have some sort of knowledge of the person you're looking for and of their immigration status before you go looking for those individuals.

21:41So for instance, if you're at an immigration court, then you'll know if somebody has that status or not, so then you can pick them up after. Or if, again, you're working off a list of people who have lost their status that you know from the Department of Homeland Security databases, and you're going to pick up those people at their work or at their home, you then have reasonable suspicion and you can do that. And what the decision also allows is, so for instance, let's say there's 20 undocumented people at a work site that they know about because they have it in their database, then they can ask, okay, well, what about the other people at this work site?

22:17I want to see the paperwork for them because then there's a reasonable suspicion because you've already established that there's 20 undocumented people at that work site, that the employer hires undocumented people. But in terms of just randomly generating leads by going to places and making these sort of facial decisions, how this person looks or how they present themselves, etc. That's the kind of thing that is enjoined under this injunction. How much of a hindrance is this order to ICE? Well, it depends if you say how much of a hindrance is it to their deterrent operations as opposed to their removal operations.

23:02It's not really a deterrent at all to their removal operations in the sense of ICE has pretty sophisticated databases where it knows where most of the undocumented people in this country are and where they live. And ICE, if they want to, can go and pick up as many people as it has detention space to detain. And so there's never a shortage of people that ICE can pick up on any given day to place in detention, given the limited detention space it has. But what it does limit is ICE's ability to engage in the kind of patrols that are designed to create a deterrent effect, meaning people are nervous to remain here in the United States because they think, oh, if I take a city bus or if I just go shopping or if I'm taking my child to school, I could be apprehended at any moment.

23:53The design of those operations isn't to meet the quota, so to speak. It's to instead create a deterrent effect that tells people if you stay here, you never know what day is going to be the day you're apprehended, so you should just return home. And so that's where it's limiting the operation is in that deterrent effect. The government is asking the Supreme Court to lift the ban, saying that the judge overstepped her authority. The government's been quite aggressive in appealing to the Supreme Court, and they've been getting better results in the Supreme Court with saying some of these injunctions.

24:29And I could foresee the Supreme Court lifting or saying parts of the injunction that limit ICE's hands. I mean, I don't see them potentially taking away the whole injunction, but I could see them giving ICE a little bit more wiggle room here. Leon, in another lawsuit challenging the constitutionality of ICE agents in Los Angeles, impersonating police officers or using other ruses in order to enter a home or convince someone to come outside to make an arrest. ICE has reached a court-approved settlement and agreed not to use those subterfuges anymore. I mean, what were they doing to cause this lawsuit to be filed?

25:14This is sort of a larger issue, which is that as people in the immigration rights movement have become very, very successful in communicating messages of know your rights. A lot of people in the immigration community have understood that ICE can be refused entry into a home unless they have a judicial warrant. So if they have an administrative warrant or if they just say, can you let me in, you're totally within your right to say, no, I don't want to let you in. And ICE can't go in. If ICE goes in, then whatever operation they did is invalid under the law once it eventually gets to a court. So a lot of individuals know this now.

25:52So ISIS had to operate, and this has been happening for many years. This is not a recent thing. So ISIS had to operate where they try to find ways around these limitations. So they try to get people to come outside. They say, hey, your car is broken, or hey, I need some direction. Can you come outside or whatever? And then once they're outside, then they can conduct their legal action. Or they say they're police. Can they be let inside? And if people think they're police but not ICE, then they let them inside. And so the idea of this lawsuit was to say ICE has to not do those tactics. They have to say that they're ICE, both in their clothing and in their verbiage, and so that when they are engaging in those operations now under the settlement, then the individuals will know this is ICE.