--:-- A. Martinez: Welcome to Up First from NPR News. I'm A. Martinez.
--:-- Le La Foddle: I'm Le La Foddle.
--:-- A. Martinez: You gotta do that every morning now. President Trump says the shutdown standoff hurt Republicans in Tuesday's elections. You read the posters that the shutdown was a big factor, negative for the Republicans. Democrats say those results show voters don't want them to back down.
--:-- A. Martinez: A decades-old law gives the president the power to regulate imports, but does he have the right to tax them? Even conservative Supreme Court justices are questioning Trump's authority to impose tariffs, a key piece of his economic agenda.
--:-- A. Martinez: And Chicago is winning, so far, in court battles against the administration's immigration crackdown in the city. A federal judge ordered cleaner detention centers and limits on the use of force.
--:-- A. Martinez: Stay with us, we'll give you the news you need to start your day.
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--:-- A. Martinez: This is day 37 of a now record-long government shutdown. Yeah, and earlier this week, some Democrats suggested they were searching for a way out as Americans felt the intense pain of furloughs, travel delays, and unpaid SNAP benefits. But Democratic victories at the ballot box on Tuesday have emboldened many to hold firm as President Trump acknowledges that the shutdown hurt Republicans on election night.
--:-- Sam Greenglass: NPR congressional reporter Sam Greenglass is here. So, all right, Sam, let's start with the view from the White House. You just heard Layla talk about how Trump acknowledges that the shutdown hurt his party with voters. And he met with Senate Republicans for breakfast yesterday. What was his message? What did he say to him?
--:-- Sam Greenglass: The president told Senate Republicans there was a lot to discuss, including what the party should do about their losses on election night. And also about the shutdown, how that relates to last night. I think if you read the pollsters, the shutdown was a big factor, negative for the Republicans. Trump has been urging Republicans to end the shutdown by eliminating the Senate filibuster. That would lower the votes needed to pass bills. Congressional Republicans, you know, have mostly gone along with Trump's wishes. But Senator Mike Rounds of South Dakota says getting rid of the filibuster is just not going to happen. The Senate was designed to really be a place where consensus is brought about to making decisions that could stand the test of time. Simply going to make the Senate a mini version of the House is not what any of us really want to do. And there's another reason Republicans are hesitant to ditch the filibuster They want to keep it in case they end up in the minority
--:-- A. Martinez: All right so if most Republicans then are saying no to President Trump desire to bust the filibuster I mean are we seeing a different solution emerge
--:-- Sam Greenglass: So both sides have been pretty dug in here, but this week, some bipartisan talks did seem to pick up steam, possibly a short-term funding measure into December, along with votes on a small package of regular appropriations bills. Democratic Senator John Ossoff of Georgia has been involved in those talks, and I asked whether he'd accept anything short of a deal to preserve expiring Obamacare subsidies. That's an issue that's been at the heart of this shutdown debate. Conversations are ongoing. It's good that people are talking. There's real urgency to prevent this huge spike in health care costs and to reopen the government. Republicans would need eight Democrats to sign on to a deal to reopen the government, and Republicans have said that would become more doable as the shutdown pain got worse.
--:-- A. Martinez: So how do the election results affect all that
--:-- Sam Greenglass: Well, there has always been a camp of Democrats who say any deal has to include an ironclad extension of those Obamacare subsidies. And many of them think their performance on Tuesday validates that position. Vermont Senator Bernie Sanders says he needs not just a Senate vote on extending the subsidies, but also assurance that the measure would pass in the House and that Trump would sign it into law. If you simply had a nebulous vote that wasn't going to go anyplace, I think we've got to continue the fight. On Tuesday, Senate Minority Leader Chuck Schumer was kind of vague about what he could live with. On Wednesday, he made it sound like his caucus was not going to relent. The election results were not vague. They were not unclear. They were a lightning bolt.
--:-- A. Martinez: So, Sam, where does this leave things
--:-- Sam Greenglass: Schumer and House Minority Leader Hakeem Jeffries are calling for a meeting with Trump on Air Force One on Sunday. I asked Trump whether he was interested in negotiating with Democrats, but he reiterated that they were the ones who needed to back down. The question is, will Tuesday change that calculus or will this shutdown stretch into a sixth week?
--:-- A. Martinez: That's NPR congressional reporter Sam Greenglass. Thanks, Sam.
--:-- Sam Greenglass: Thank you.
--:-- A. Martinez: The Supreme Court has not yet issued a major ruling against President Trump in his second term. They heard arguments yesterday in a case about Trump's tariffs. We don't know yet what the opinion will say, but the justices' questions yesterday, including from conservatives, were skeptical of Trump's positions.
--:-- Danielle Kurtzleben: NPR White House correspondent Danielle Kurtzleben was listening. Good morning, Danielle.
--:-- Danielle Kurtzleben: Good morning.
--:-- A. Martinez: Okay, so just recap for us. What were these arguments about
--:-- Danielle Kurtzleben: Well, they were about the law that Trump used to impose those tariffs you mentioned. It's a 1977 law called the International Emergency Economic Powers Act, or IEPA. And it gives a president broad economic powers during an emergency. So in this case, you had a group of businesses and states arguing that that law does not give the president the power to impose these tariffs. In fact, they noted that IEPA doesn't even contain the word tariffs.
--:-- A. Martinez: So what was the administration arguing here
--:-- Danielle Kurtzleben: There's a key phrase in IEPA that was central to the arguments. That law says a president can, quote, regulate imports. Solicitor General John Sauer said that allows a president to tariff because, he argued, tariffs are simply a basic way to regulate imports. But that connected then to a bigger constitutional question. whether in the process of regulating imports, the president is allowed to tax because the Constitution gives Congress the power to raise revenue
--:-- A. Martinez: And this led to a lot of questions about what the president can and can do
--:-- Danielle Kurtzleben: Justice Kavanaugh at one point suggested that he didn't think that Congress intended to create what he called a donut hole That is, he didn't think they meant to allow a president to regulate imports using, say, sweeping embargoes, but not to impose even a minimal tariff.
--:-- A. Martinez: And here we're going to hear him talking to Benjamin Gutman, one of the lawyers challenging the tariffs. That doesn't seem, but I want to get your answer, to have a lot of common sense behind it. I think it absolutely does because it's a fundamentally different power. It's not a donut hole. It's a different kind of pastry.
--:-- A. Martinez: That got laughter in the courtroom. It even got a chuckle out of Kavanaugh. But what Gutman was saying was that this is about types of powers, that the law gives the president broad powers, but that that simply doesn't include tariffs. So not about pastries then, Daniel.
--:-- Danielle Kurtzleben: Right. What sense did you get? I mean, you watch this a lot more closely than I did, of how the justices felt about these arguments.
--:-- A. Martinez: Well, as you said, there was some skepticism. The more liberal justices were definitely more open to the arguments against the tariffs. But even some more conservative justices seemed skeptical of the government's arguments. Justice Gorsuch was especially concerned about whether Congress was delegating one of its core jobs to the president here and whether that's even allowed.
--:-- A. Martinez: What would prohibit Congress from just abdicating all responsibility to regulate foreign commerce? for that matter, declare war to the president.
--:-- Danielle Kurtzleben: We don't contend that he could do that. Why not? Well, because we're dealing with a statute again that has a whole... I'm not asking about the statute. General, I'm not asking about the statute. I'm asking for your theory of the Constitution.
--:-- A. Martinez: And there were a few exchanges like that with Gorsuch really poking at Sauer's rationale.
--:-- A. Martinez: And what happens if they decide against the president
--:-- Danielle Kurtzleben: Well, on tariffs, the ultimate effect is unclear. I mean, a bunch of his tariffs would then be illegal. But other tariffs, like the ones he's imposed on particular goods like steel and aluminum, those would remain. And he could use other laws to impose more.
--:-- A. Martinez: Now, as for Trump himself, he has called this the most important Supreme Court case ever. So, yeah, he'd be upset. But also importantly, we would be seeing this court trying to meaningfully rein in his power.
--:-- A. Martinez: So we would see what comes of that. And a ruling is expected by July.
--:-- A. Martinez: And Pierre's Danielle Kurtzleben, thank you so much.
--:-- Danielle Kurtzleben: Thank you.
--:-- A. Martinez: Chicagoans opposed to President Donald Trump's aggressive immigration campaign are taking his administration to court and winning so far. This week, there's been hours of testimony as one federal judge listened to accounts about citizens jarring encounters with federal agents. And another judge ordered the administration to improve the conditions at an immigration holding facility in a Chicago suburb.
--:-- John Seidel: John Seidel with Chicago Public Media and the Chicago Sun-Times has been covering this and is with me now. Good morning.
--:-- John Seidel: Good morning.
--:-- A. Martinez: So these legal fights have been going on for over a month. In what ways has the city prevailed
--:-- John Seidel: Well, last month, a federal judge in Chicago ruled against Trump's efforts to deploy National Guard troops here. And another judge limited federal agents' use of force against protesters and required a senior official to actually sit for a lengthy deposition. And now that judge, Sarah Ellis, is preparing to rule on what's called a preliminary injunction. It would basically extend the order she issued last month that governs agents' use of force here.
--:-- A. Martinez: When Judge Ellis held a hearing yesterday in order to make that decision, what was the testimony like
--:-- John Seidel: Yeah, she presided over an eight-hour hearing Wednesday. She heard from a woman who said she found herself staring down the barrel of a gun just for filming the arrest of day laborers. The judge heard from a pastor who said he was shot in the head by pepper balls while praying outside a holding facility. And the judge heard the video testimony of U Border Patrol Commander Greg Bovino who become the public face of this campaign He said the use of force here has been quote more than exemplary
--:-- A. Martinez: And now Judge Ellis says she plans to hand down her ruling today Tell us more about Bovino
--:-- John Seidel: Bovino came here from California, where he led operation at large. That led to a very controversial ruling by the Supreme Court, which allowed agents in that operation to continue stopping people based on factors like race and language. Bovino was accused last month of throwing tear gas into a crowd in Chicago's Little Village neighborhood without justification. Federal authorities say he did so while being confronted by a hostile mob. They even said he'd been hit in the head with a rock. But attorneys told Judge Ellis yesterday that Bovino finally admitted he threw the tear gas before the rock entered the picture. Bovino's deposition was conducted privately, and we're waiting to see how much of it becomes public.
--:-- A. Martinez: Now, we mentioned the ruling about an immigration facility. What is happening in that one
--:-- John Seidel: That's right. Judge Robert Gettleman presided over a similar hearing Tuesday. That one revolved around the conditions inside this holding center in suburban Broadview. It's where most people arrested by immigration agents find themselves being held, at least for a short while. Until this summer, the facility hadn't been intended as a long-term holding center. But Gettleman heard that people are being held there for days at a time, 100 to 150 people to a cell. They often have nowhere to sleep but the floor, he was told. And many are sleeping near a dirty toilet.
--:-- A. Martinez: Though it's long been considered a detention or processing center, Judge Gettleman said it seems more like a prison.
--:-- A. Martinez: And Wednesday, he ordered that people held there should all be given clean bedding and a mat, that each holding room should be cleaned at least twice a day, and that everyone should be given adequate supplies of soap, towels, toilet paper, and other hygiene products.
--:-- A. Martinez: John Seidel with Chicago Public Media and the Chicago Sun-Times. John, thank you for your reporting.
--:-- John Seidel: You're welcome.
--:-- A. Martinez: And that's Up First for Thursday, November 6th. I'm Leila Faldin. And I'm A. Martinez.
--:-- A. Martinez: If you enjoy starting your day with Up First, and I know that you do, please consider donating to your local NPR station. When you give to your local NPR station, you help keep journalists on the ground in your community. Keep the NPR network strong. Visit donate.npr.org slash upfirst to contribute.
--:-- A. Martinez: And for more news and conversations, listen to our radio show morning edition. You can find it on your local NPR station or at npr.org. Or on your app.
--:-- A. Martinez: Today's episode of Up First was edited by Jason Breslow, Krishnadev Calamur Cheryl Corely, Mohamad ElBardicy, and Alice Woelfle.
--:-- A. Martinez: It was produced by Ziad Buchh, Nia Dumas and Christopher Thomas.
--:-- A. Martinez: We get engineering support from Stacey Abbott. And our technical director is David Greenburg.
--:-- A. Martinez: Join us again tomorrow.
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--:-- A. Martinez: This is Up First from NPR News. I'm A. Martinez.
