This is Bloomberg Law with June Graasso

from Bloomberg Radio.

During oral arguments this week, the

Supreme Court justices struggle with the

question of whether a geoence warrant

that compelled Google to share location

data from cell phones near a crime scene

is an unlawful search that violates the

Fourth Amendment. Justices ran through

hypotheticals trying to compare the

process to a traditional physical search

of a hotel or storage locker. Some, like

Chief Justice John Roberts, expressed

concerns about the surveillance of

locations like churches or political

rallies. One of the central concerns

that's been voiced of course is what's

to prevent the government from using

this to find out the identities of uh

everybody at a particular church, a

particular political organization. Um

what are the restraints that would

prevent that from becoming a problem?

>> Others were concerned that the

government's position on publicly

visible movements would extend to

private residences. Here's Justice Amy

Coney Barrett. Now you're telling

Justice Kagan really that if you go into

a private home it wouldn't be a search.

I mean if you tra trace location

services I mean I understand in this

case and is that true that in this case

you're saying he didn't you didn't pick

him up in any home?

>> Well your honor he was he he eventually

stopped at the end of his journey away

from the bank at a group of homes. But

there's testimony. This is page 129.

>> Not inside the home. You

>> we couldn't tell which home he was even

in.

>> Okay. But you really are saying that you

could track someone going inside a home.

Justice Sotomayor asked Mr. Unicowski

about movements inside a home, movements

to the bathroom, movements to the

bedroom, all of that. My guest is former

federal prosecutor George New House of

Richard's Carrington. George, will you

explain what a geoence warrant is and

how police use them? Geoffence warrants

are the latest technology innovation

that's raising some very interesting

Fourth Amendment issues. So essentially

Google which is everywhere ubiquitous

collects an massive amount of data

location data from you and me and people

with phones who walk around and they

have to agree to allow this by the way.

So you can turn your location services

off but most people don't and Google

collects information about millions of

its customers. But what's amazing about

the geoence is it's able to sort through

this massive amount of data and here are

all the people that were within 150

yards at a particular time and date. So

it's very useful was used in this case

to identify the suspect. So it's like a

search warrant in reverse. Normally they

know who the suspect is and they want to

search for physical evidence. In this

case the the geoence warrants allow law

enforcement to locate the suspect they

otherwise don't know. It's ingenious and

of course some very novel technology.

>> And this case is about a bank robber who

actually eluded police until they turned

to the geoence warrant.

>> Correct. His name is Shatri. He robbed a

Virginia bank. Probably walked in with a

demand note and no one knew who he was.

And he walked out, by the way, with

$100,000 in cash. So it was a a very

successful bank robber. He got away. He

was on surveillance video, but otherwise

no one knew who he was. The police

didn't know who he was. But they saw

something interesting on the

surveillance. They saw him talking on

his phone. So they knew he had a cell

phone. And of course, most of us,

wherever you go, your cell phone is with

you. And oh, by the way, that means that

your cell phone is pinging towers and

Google and telling people where what

your location is. So knowing that he had

a phone, they prepared this search

warrant, which is literally a judicially

signed document that required Google to

search through all this data and

produce. They did it actually in three

productions. The first one was anomized,

meaning they didn't identify who the

customers were, but they identified how

many and location and then they did

several different tiers until they got

to the third tier with more information.

And then Google was able to give them

the names and phone numbers of three

suspects, one of whom was Shatry. And

that led to a real search warrant for

his house where guess what? They found

$100,000 in cash easily incriminating

him. So now what what's the question

before the Supreme Court?

>> So typically in these cases the the

first question is was the application to

Google it's a warrant but was that a

search under the fourth amendment

because typically if it's a search it

has to pass the reasonleness question

and of course the one of the things the

justices talked about in the argument

was you know normally if you have a

warrant you're in good shape. a lot of

the these test cases where they're

acting without a warrant. Here they had

a warrant and the question was did the

warrant then have probable cause

sufficient to allow the judge to sign

the magistrate to sign the warrant. And

of course they didn't have probable

cause as to any specific individual.

That's the the twist in this case. So

they weren't looking for evidence. They

were looking to see who did it, the

identification. And that's that's novel.

There was a lot of concern about the

broadness of the Trump administration's

position here and you had justices like

the chief justice saying what's to

prevent the government from using this

to find out the identities of everybody

at a particular church, a particular

political organization. Justice Amy

Coney Barrett said so you could track

someone going inside a home, movements

to the bathroom, movements to the

bedroom, all of that. Well, first of

all, I think they're overstating the

preciseness of the technology. It's not

that precise really. It's it's a geo

circle. It's 100 yards. They don't

necessarily know where you're going or

what you're doing, but they can see

where you are. And yes, those concerns

were raised. I think the response to

that is, well, first of all, it can't be

used for general surveillance. you have

to be investigating a criminal action, a

bank robbery or national security or you

know they were worried about identifying

murderers and other people who committed

crimes. So I don't think it'd be used

that far but the concern is that some of

the people talking about this said this

case is unique because the principle of

government seems to be search first and

develop suspicion or evidence later. And

normally it's the other way around. They

get the evidence first and then they use

that to further identify the individual

who's responsible. So I think that's

probably less of a concern, but the

breadth of this particular tool in the

hands of law enforcement is staggering.

>> And any other concerns that you heard

from the justices?

>> Well, again, they're always concerned

now when they deal with these cases

because the way technology develops so

fast, it quickly outstrips prior cases.

I mean, the last time we had a

significant Fourth Amendment search of

this nature, it would be Carpenter, the

California case where this police seized

and then searched a cell phone incident

to arrest. And of course, the courts are

concerned about protecting the privacy

of individuals. The argument that the

government made in this case, which I

think is a pretty strong argument, is in

a sense, everyone who carries a cell

phone, they may not know that Google is

doing this, but they've consented to

location services. So, at that point,

they have a and the phrase is a

diminished expectation of privacy, and

that's usually where it turns.

>> How do you think they'll come out?

>> Well, I mean, I listened to the

argument, which was interesting. I

didn't see the argument as quite as

divided as some of the commentators

have. I think quite clearly the action

will be affirmed. What they're probably

likely to do is write an opinion that

will seek to put some guard rails up,

put some parameters. Here's what the

police have to do. Things that they

can't do would be including, you know,

start following people around. And there

are lots of uses that they could

conceivably be concerned about that by

writing a narrow opinion affirming the

conviction and the use of the geoence.

In this case, the court may be trying to

put up boundaries, as they did in the

Miranda decision and in other decisions

in the past.

>> It seems when privacy is at stake, it's

something that concerns them personally

and the oral arguments are a lot

livelier with more energy.

>> Energy and good humor. At one point,

Barrett commented that she was aware

that when she walked into, you know,

Nordstrom's or one of these stores where

she was shopping that the store seemed

to know she was there. And this is true.

This is what Google does with this data.

It sells the data and then you

immediately get text messages asking if

you're interested in a special on XYZ.

So you say, "Oh my gosh, my phone knows

exactly where I am and what I'm doing."

And the justices all seem to enjoy that.

But so the point is when the justices

can relate to the use of the technology

in their own personal lives, then they

stand up and they take attention and

they tend to be very careful in the

opinion because it affects them as well

as everyone else.

>> It's a learning experience sometimes for

us and for them.

>> Correct. Anyway, a fascinating case and

um it'll be interesting to see where it

comes out. It's clear to me and a few

others that although they were

interested in a lot of the variations

and the particular concerns were

expressed that seems to be a clear

majority of the court, the justices who

are supporting law enforcement want to

make sure that the tools of the law

enforcement trade are enabled.

>> And do you think that it could hamper

police in their investigations if they

have to comply with certain requirements

that were referred to? Well, again, it's

hard to say. Yes, if the court said you

cannot obtain a search warrant unless

you are have more specific information

about the individual. And there was also

some disconcern about what we call the

lack of particularity. It was a very

general warrant. In fact, there was

discussion about comparing it to the

general warrants that were issued by the

British authorities in the revolution

that led to the fourth amendment. But I

think they will do enough to make sure

that this is a tool is going to be very

useful. But of course the other problem

is it will also continue to develop as

technology develops. We are entering an

age of surveillance. I hate to say this

and and that's the one thing that

everyone should be concerned about.

>> That certainly seemed to cut across the

ideological divide. Thanks so much for

your insights, George. That's former

federal prosecutor George New House of

Richard's Carrington. President Trump's

past remarks disparaging Haiti became

part of the oral arguments in two cases

before the Supreme Court this week that

test the Department of Homeland

Securityurities powered to end temporary

protections for migrants from crisis

ridden countries like Haiti and Syria.

Justice Sonia Sotomayor said that

Trump's past comments about Haiti seemed

to show that an improper discriminatory

purpose may have played a part in the

decision to cut off temporary protected

status.

>> That Haiti is a quote filthy, dirty, and

disgusting country. I'm quoting

him. and where he complained that the

United States takes people from such

countries instead of people from Norway,

Sweden or Denmark where he declared

illegal uh where uh he declared illegal

immigrants which he associated with TPS

as poisoning the blood of America. The

administration told the court that those

past remarks by the president were not

racist and shouldn't get in the way of

the government stripping away temporary

protections for migrants. But the

overarching question was whether judges

have authority to even review the DHS

secretar's decision. Some of the

conservative justices like Clarence

Thomas question that. Would you be kind

enough to uh say what else is reviewable

under despite uh the uh the uh

jurisdiction stripping provision because

it seems pretty broad. It says there is

no judicial review of any determination

of the attorney general.

>> My guest is immigration law expert Leon

Fresco, a partner at Holland Knight.

Leon, start by giving us the background

of these cases. In September and in June

of 2025, the DHS secretary at the time,

Christine Gnome, terminated temporary

protected status designations for Syria

and Haiti. What that means is the

president has the ability to at any time

say that the conditions in a country are

so unacceptable that it would not be a

good idea to deport people to those

countries. And then that triggers an

18-month period called temporary

protected status. So that had been done

under the Biden administration for Syria

and Haiti. And the Trump administration

lifted these designations for Syria and

Haiti because they said that there was

no more need for this. And they said it

was in the national interest of the

United States to not have TPS, which was

a subsequent argument in this case that

what does that have to do with anything

here? This is sort of a larger issue of

what are the conditions in those

countries? But nevertheless, the

immigration advocates found plaintiffs

who were Syrian and Haitian to sue the

Department of Homeland Security over

their TPS revocation termination. And

those cases worked their way up the

district court and the appellet court

and they're now before the Supreme Court

on the issue of whether those

designations are reviewable and if they

are reviewable, what can be reviewed?

So, several of the conservative justices

sort of harped on the fact that the 1990

law that created TPS says there's no

judicial review of the secretar's

determination.

>> Correct. And there's a lot of case law

on this issue of judicial review. And

the big one is McNary. That's a big case

that had to deal with other parts of the

immigration code where they say there's

no judicial review. And the issue that

comes into play is does that mean

everything is not subject to judicial

review or the final decision isn't

subject to judicial review. And this is

where there was a lot of debate and

discussion there because the idea was

well fine if you really did a good job

analyzing the issue. You contacted the

State Department. You'd had your experts

on the ground tell you that Haiti was

fine and that Syria was fine. Well, then

that wouldn't be something subject to

review. But what if everybody had found

out? Let's say they had put it on

YouTube as an example where you

blindfold the secretary and you say,

"Throw a dart and wherever the dart

lands, that's what we're going to do

with TPS. We're either going to do yes

or no." Could you review that? would you

have any remedy if that's how they made

the decision on TPS? And it looked like

there were three justice who said even

that would not be reviewable. But there

seemed to be about five justices who

thought, "Wait a second. If really

something like that happened where you

just made a mockery of the review

process on whether to terminate or

whether to renew TPS, then that might be

something we would need to look at

because how could you just allow a

situation like that to stand?"

>> Leon, and the Liberal Justices brought

this up. Then Homeland Security

Secretary Christine Gnome, did she take

any of the, you know, required steps in

cancelling the TPS protections?

>> That's the concern that they have is

they say that at the end of the day, she

really didn't review the country

conditions that were necessary. she

really didn't have the consultations

that were necessary in order to make the

determinations that it actually was safe

to deport people to Syria and to Haiti.

They said this was just very brief email

to the State Department and then

boilerplate responses saying there were

no foreign policy concerns. And so

they're saying, "Look, we're not saying

you have to have a massive trial here,

but if that's all you do, and then by

the way, you discuss in your revocation

notice that it's just in the national

interest to revoke this, you know, that

the American people not be subjected to

immigration from these countries."

That's not really what matters in these

determinations. What the statute says

matters are the conditions on the ground

and whether it has become safe to deport

those individuals to those countries

based on the conditions on the ground.

And lawyers for the immigrants pointed

to State Department advisories that warn

US citizens not to travel to either

country because of risks of terrorism,

kidnapping, and armed conflict. Can you

lay out where you think the justices

stand? It looks to me like there will be

five votes, Jackson, Kagan, Sotomayor,

but also it looks like Justice Barrett

and Justice Roberts that are signaling

concern with this idea that there might

have been some administrative pretext

and procedural irregularity there. And

that what would happen is you would not

have a categorical rule that says under

no circumstances is anything reviewable.

But what it would say is you could have

review as to whether the procedures that

the Congress requested were followed and

if they were whatever the outcome is

that can't be reviewed because at the

end of the day you need to have some

ability there to say hey there's

difference given to these

determinations. This is not the province

of judges to say whether Haiti is too

dangerous or whether Syria is too

dangerous. How do the judges know that?

But you have to follow the procedures.

You can't throw a dart on a dart board

and figure this out. And it looked like

there were three justices, Thomas, Alo,

and possibly Gorsuch, who seemed to be

concerned that this TPS question, it

isn't just about difference to President

Trump, but it's also about the fact that

there's foreign policy questions here

about what we say about foreign

countries. And the vast majority of time

when you say that something implicates

foreign policy that then becomes what is

known as a political question which

means it's not something the courts will

elect to review. They'll say look that's

fully in the province of the president

and we don't get involved in that. I

don't know where Justice Kavanaaugh will

go. seemed very uncertain based on the

argument, but I think there's at least

five votes to say you could have review

as to whether the procedure was

followed, but not judicial review of

whether the right decision was made.

>> So last week, the Supreme Court

considered how much discretion

immigration officers should have at the

border. Tell us what the question is

here and whether this comes up often or

not.

>> So this is a complicated issue. So, I'll

I'll give you this example. So, a lot of

times people they get what's called a

green card, which means that they're a

lawful permanent resident of the United

States. And so, when they get that,

they're finally relieved that they're

not going to have to sweat it out every

time they travel and come back into the

United States because the idea is they

should be allowed to live in the United

States. End of story. But there are some

occasions

where that's not true. where you can

actually be scrutinized when you try to

come back in the country. One of the

main ones is the question of whether you

abandoned your lawful permanent

residency. And this comes up all the

time. People will will live outside of

the US for way too long and they'll try

to come back in and the Customs and

Border Protection will say, "Are are you

really living here?" That happens a lot.

That would probably happen thousands of

times a year. But another one will be,

and that's the one that happened in this

case, was did you commit a criminal act

when you were in the United States or

outside of the United States that we

were not aware of previously, but now

we're aware of it. And because you've

committed that criminal act, now you are

subject to deportation.

And so in this case, that's what

happened. They said that this person,

Mr. Lao had a pending criminal charge.

So what they said was, "Look, we know

that it would be massively unfair to

just, you know, you boarded a plane with

a green card. You haven't been ordered

deported. You haven't even been

convicted of a crime. You just have a

pending criminal charge. So we know it

would be totally unlawful and

unreasonable to not let you in the

country." So, but what they did was they

kind of tried to do this weird middle

ground thing where they said, "Well,

here's what we're going to do. We're not

going to admit you into the country as a

lawful permanent resident. We're going

to admit you into the country as a

parole." And what a parole is, it's a

legal fiction. It's just saying we will

let your body into the US so that your

body can be here. But when you're a

parole, your legal body, not your actual

body, your actual body is in the US.

your legal body is still outside the US.

And what that means is the government

could at any time revoke that parole and

deport you. And so that's what actually

happens here is had they admitted him as

a lawful permanent resident, they would

have subsequently had no basis to deport

him. But because they admitted him as a

parole, what they subsequently did was

say, "Ha, well, we admitted you as a

parole. Now we're going to revoke your

parole." And so this Supreme Court case

really came down to the issue of whether

the CBP is allowed to do that or whether

they have to admit anyone who enters

with a green card as a green card

holder. So that's the first question.

But sort of the deeper question which

was really at the heart of this and this

is why this case is so interesting is

and I teach this talk because I teach

immigration law at GW Law School. I

teach in my very first class that for

the longest time the immigration law was

based on good faith meaning good faith

of the applicant and good faith of the

government. And if you stop basing

immigration law on good faith the whole

system collapses. Well here this was

testing that concept because what the

plaintiffs and the side for the foreign

nationals were saying was you can't

trust the government to act in a good

faith manner here. Look at what they did

here. So from now on, that can't happen.

And what the conservatives and the

enforcement people were saying is, do

you really think that our government is

just going to psychotically not let

green card holders in just so that they

could deport them later? But the point

is, if the Supreme Court doesn't act to

prevent this, they will have that

authority to do that to green card

holders, which is to say, for any

reason, we're not going to let you in

with your green card. We we know we

can't ban you, so we'll parole you in

and if for any reason we want to revoke

your parole later, we can do it. Even

though there was no actual reason to

deport you, they can just by the legal

fiction of you re-entering the country

just decide to do this to you. So that's

the question and the court was really

struggling with this issue. There was a

lot of skepticism at the issue that

there would be no standard at the border

by which the government could be

prevented from saying that you're not a

lawful permanent resident. This really

troubled people, but they also don't

want a mini trial at the airport about

whether you should be admitted or not.

So, this is very hard to figure out

where this is going to go. But I do

think there's going to be some

constraints as to what the CBP, the

Customs and Border Protection could do

in terms of trying to figure out when

they can refuse to allow you to enter as

a lawful permanent resident if you

present a lawful permanent resident uh

card. And one other thing, the argument

got so crazy that people were talking

about why not just dismiss this case as

improvidently granted and go back to the

second circuit's decision. You know,

we're going to create a Pandora's box

here. So, any outcome is possible here.

So, this doesn't happen all the time. It

might happen a few thousand times a

year, but it's really a question of do

you want to give the government, do you

trust it enough to give it the authority

where it can ruin any green card

holder's life for any reason, or do you

want to put that constraint? And that's

where it really comes down to whether

you believe the government largely acts

in good faith or whether you believe the

government largely doesn't act in good

faith.

>> That's a more loaded question nowadays

than it was probably years ago. I've

been talking to Leon Fresco of Holland

Knight. He was the former head of the

Office of Civil Immigration Litigation

in the Obama administration. So, let's

turn now to an issue that will most

likely end up at the Supreme Court

because there's a split in the circuits,

mandatory detention for all. So the

second circuit here in New York ruled

unanimously with a Trump appointee on

the panel that the administration can't

jail immigrants without the chance to

seek bond. Have they been trying to do

this?

>> So this is a very complicated case. So

let me give you the original way this

worked and then what happened and then

the case. So, in 1996, there was a law

called the Illegal Immigration

Enforcement and Responsibility Act. And

that law said that there was an issue

called expedited removal where if you

just showed up at the border or a port

of entry and you didn't have any reason

to be here, then the government could

detain you without bond until your

removal proceedings were concluded and

then they could deport you. But the way

that statute was written, it says if you

are an alien, meaning you're not a US

citizen, you're a foreign national who

is an applicant for admission, meaning

you want to one day be legally admitted

into the United States, you must be

detained mandatorily, but it says if you

are an alien seeking admission. So it

has two different things in the same

statute, applicant for admission and

seeking admission. So for the first 30

years after that statute was written,

the way that the immigration authorities

thought about this was as follows. If

you were apprehended at the border or at

the port of entry or at the seapport or

airport, whatever it may be, that that

was a person who was an applicant for

admission and seeking admission. that

person could be detained and that person

didn't have an opportunity to seek bond

if their removal proceedings were

pending. But if you had snuck across the

border and made it through and you were

no longer being chased, we never even

knew you were here. You just entered at

that point. You were no longer seeking

admission. You weren't caught while you

were trying to seek admission to the

United States. You were caught well

after that. And that would be a person

that would be subject to the normal

immigration removal statutes which say

that if you either overstay your visa,

that one everybody agrees. If you

overstay your visa and you're caught,

yes, you can be deported and yes, you're

placed in removal proceedings, but

you're entitled to a bond hearing to

determine whether you should be detained

during these proceedings. and you are

entitled to bond if you're not a flight

risk or if you're not dangerous to

society. So everybody agrees to that

with people that overstayed their visa.

But there's this question that the Trump

administration has decided to

resuscitate which is well is this really

true for the people who stuck across the

border and didn't get caught? What are

they more like? Are they more like the

visa overstay people or are they more

like the people who were just

apprehended at the border? And so the

Trump administration decided to say,

"No, no, no. They are just like the

people who were apprehended at the

border. It doesn't matter that they were

successful in sneaking across. They

should be not rewarded for that. They

should also be mandatorily detained."

So, what you've been seeing is thousands

of habius petitions being filed because

people who went to immigration court for

their hearings were suddenly being put

in detention. Even though they had been

given bond, they were suddenly being

told, "We don't have any authority to

give you bond, so you're going to be put

in detention." And people have been

filing federal habiuses.

>> Tell us more about the split between the

second circuit and the fifth circuit and

the eighth circuit. in the fifth circuit

and in the eighth circuit. Those courts

agreed with the Trump administration.

But now this second circuit is the first

court that agrees with the foreign

national litigants. And they say that

because this statute uses two different

terms in the same statute for mandatory

detention. Not only do you have to be an

applicant for admission, which is

everybody in the immigration court is an

applicant for admission because if

you're not if you're fighting your

deportation, you're necessarily saying I

want to be admitted here legally. Don't

deport me. So yes, that part's true. But

because the statute also uses the words

seeking admission that that means

currently that the verbiage of that

means you have to be caught when you're

trying to enter the United States when

you're first asking for permission not

subsequently much later. And so that's

what the second circuit says. And they

say look 30 years of this matters. And

it also matters that when you're

detaining people for not committing a

crime, but for immigration, which is a

civil matter, if you're going to hold

people without bond, that's a serious

constitutional problem because even

criminals get bonded. I mean, you can

murder somebody and potentially get

bond. So, why would someone who just uh

has an immigration violation not be

entitled to bond? And so that's what the

court said is in a case like that where

there's serious constitutional concerns,

if there's an ambiguity where the law

can be read 50/50 one way, 50/50 the

other, we can't possibly choose the one

that creates constitutional concerns.

And so that's why the second circuit

decided to say that those individuals

are now entitled to bond. Now, this case

is for sure going to go to the Supreme

Court because there's a circuit split

and the Supreme Court will have to

decide what to do next. I'm waiting for

you to say one day, this is an easy case

because these immigration cases are all

so complicated. We've talked often about

the way ICE officers mask themselves up

and a California law that required ICE

agents to identify themselves in public

has been temporarily blocked by the

Ninth Circuit. First of all, tell us

about the law itself. It's in the

California Penal Code and it says that

if you are a nonuniformed

federal law enforcement officer, which

they're really kind of triggering toward

ICE, cuz ICE is the ones that wear the

masks and the nonidentifying uniforms.

If you're performing law enforcement

duties, you could be criminally

prosecuted for that. So, you have a duty

to display identification.

And if you don't display identification

and you're nonuniformed in California,

the California police can essentially

arrest ICE agents and place them in jail

>> and explain why the appeals court said

that California law is an unlawful

attempt to regulate the federal

government.

>> And so the question was, does that

violate the supremacy clause? And the

debate is California is saying yes, we

we agree that we're regulating the

federal government in that sense because

we're telling them that if they want to

have ICE operating in California, they

have to be visible. They have to say

their ICE and they can't have masks. But

we're doing this for public safety

reasons and we're not actually

interfering

in their operations. ICE can still

deport whoever it wants. It can still

capture whoever it wants. it just has to

identify itself. So they were trying to

say that should be an exception and the

federal government was saying no no no

any regulation of federal law

enforcement officers and agencies it

doesn't matter how good your reason is

or how benevolent your reason is or

anything. It's just not possible under

the supremacy clause because then we end

up with an eye of the beholder situation

of who thinks what regulation is in the

best interest and a good faith and all

of that. That's not really what matters.

The supremacy clause is a strict

liability situation here where you can't

have any direct regulation by states or

localities of federal officers and

agents in the performance of their

federal duties. And these judges were

not so conservative and they agreed

unanimously that an injunction was

necessary to the California law because

they said, "Yeah, at the end of the day,

you can't have any direct regulation. It

doesn't matter that there's a minimal

burden or that it's a safety issue, that

it's not interfering or anything like

that. It's just saying there's a very

bright line rule and you can't cross it,

that the states cannot directly regulate

federal operation. They can't put rules

that federal officers have to follow and

especially not criminal rules where they

go to jail if they don't follow those

rules. So, I don't think that this is a

case where the Supreme Court's going to

need to do anything because I think that

at the end of the day, it may just

finish there at the Ninth Circuit. But,

uh, it's a very interesting attempt by

California and a very interesting

decision by the Ninth Circuit. I mean,

the way the ICE officers are masked up,

A, it looks frightening, but B, you have

no idea who's arresting you, who's

stopping you. I mean, it's really

discomforting in so many ways, and

there's nothing that California or any

state can do about it.

>> Well, the answer to that is you have to

put that in an appropriations bill. And

that's why we currently have a shutdown

of the Department of Homeland Security

is, you know, I and we I mean, yes, the

TSA is back because President Trump is

using money from other legislation to

pay for them and everything, but you

have the Secretary of Homeland Security

saying they're going to run out of money

in May and it is currently shut down.

The Department of Homeland Security in

essence because there they don't have

appropriations for because of this

issue. the the the issue is that the

Democrats in the Congress want ICE and

CBP to operate under specific guidelines

like this and the Republicans don't want

ICE and CBP to operate under specific

guidelines like this. But this is the

forum in which it has to be settled

because if it's settled in the federal

courts then you know you could just you

could see where people would be nervous

about this kind of thing because suppose

some other state said look if you want

to enforce civil rights law in our state

you can't be of a certain race or

something or we're going to arrest you

or you know who knows what conditions

people can start putting in uh if if

they were not so benevolent and who

decides whether those conditions are

benevolent or not. And so it is really

just easier to have a bright line rule

that says, "Hey, the federal government

gets to decide how its federal officers

and and operators do things. The states

have no role. And if they break the law,

you can always file a bivven lawsuit. If

they broke the law, visav specifically,

you can file a bivid lawsuit, section

1983, whatever it takes to say, I want

to get paid because my civil rights were

violated. Or if on the larger scale, you

think there's a problem, then you do the

political advocacy necessary to get that

changed in an appropriations bill. And

that's literally the fight that we're

having right now.

>> Leon, do you know when ICE officers

started masking up like this? I do not

think that that happened any time before

the Trump administration. It might have

happened on very specific targeted

operations where there were very

dangerous people involved, but not as a

matter of just uniform practice that

happened in this most recent

administration.

>> We covered a lot today, Leon. Thanks so

much. That's Leon Fresco of Holland

Night. 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 Podcast, Spotify, and at

www.bloomberg.com/mpodcast/law.

And remember to tune in to the Bloomberg

Law Show every week night at 1000 p.m.

Wall Street time. I'm June Graasso and

you're listening to Bloomberg.