Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: It's the second immigration victory for the Biden administration at
Speaker 1: the Supreme Court in a year. By an eight to
Speaker 1: one vote. That Justice is rejected the challenge by Texas
Speaker 1: and Louisiana to a Biden policy that prioritizes deporting immigrants
Speaker 1: who recently crossed the border or who are considered the
Speaker 1: greatest threat to public safety. The Court held that the
Speaker 1: Republican states lack the legal standing or right to sue something.
Speaker 1: Several justices, including Elena Kagan, pointed out during the oral arguments.
Speaker 2: Immigration policy is supposed to be the zenith of federal power,
Speaker 2: and is supposed to be the zenith of executive power,
Speaker 2: and instead we're creating a system where a combination of
Speaker 2: states and courts can bring immigration policy to a dead halt.
Speaker 1: And Justice Brett Cavanaugh, who wrote the majority opinion, had
Speaker 1: pushed the Texas Solicitor General on whether allowing this suit
Speaker 1: would mean that states could challenge other federal policies.
Speaker 3: Could a state challenge the president's exercise of war powers,
Speaker 3: for example, being a violation of the Constitution or the
Speaker 3: War Powers Resolution? They raised that as an issue that
Speaker 3: your theory would lead to.
Speaker 4: I don't believe, say your honor in part because for example,
Speaker 4: why not, well, definitely because to the state from its
Speaker 4: people going into a foreign war.
Speaker 3: So why couldn't the state then challenge under your theory.
Speaker 1: Here joining me is Leon Fresco, a partner at Holland
Speaker 1: and Knight and the former head of the Department of
Speaker 1: Justice's Office of Immigration Litigation. Leon how big a victory
Speaker 1: was this for the Biden administration.
Speaker 5: This was absolutely a tremendous victory from the same point
Speaker 5: of procutorial discression priorities that the Biden administration has been
Speaker 5: trying to implement and since the beginning of the Biden administration,
Speaker 5: and they've been thwarted. So we're talking about twenty twenty one,
Speaker 5: twenty twenty two, and now halfway through twenty twenty three,
Speaker 5: and finally the Bide administration is going to be able
Speaker 5: to have these prosecutorial discretion priorities so that it's no
Speaker 5: longer a decision as to the discretion of the local
Speaker 5: ICE office in your area to decide whether they are
Speaker 5: going to put you in removal proceedings or not, but
Speaker 5: instead you'll be able to follow this particular memo and
Speaker 5: be able to say the ICE, I'm not within the
Speaker 5: prosecutorial enforcement priority, so mycations taken off the docket, and
Speaker 5: I shouldn't be deported and you should focus on these
Speaker 5: larger national security or criminal priorities that are in your memo.
Speaker 1: So explain what the Biden administration's policy is compared to
Speaker 1: what the Trump administration's policy was.
Speaker 5: So you have to start with the end of the
Speaker 5: Obama administration and then the Trump administration and now the
Speaker 5: Biden administration. But at the end of the Bomba administration
Speaker 5: was the first time that an actual manimal was issued
Speaker 5: like this saying, look, if you are not a criminal,
Speaker 5: a recent border arrival, or a national security threat, you
Speaker 5: are with the bottom of the priority list for ICE deportation,
Speaker 5: meaning I should be focusing all of its resources on criminals,
Speaker 5: national security threats, and recent border arrival. And hence, if
Speaker 5: you find somebody who's been here ten twenty years, don't
Speaker 5: place that person into removal proceedings, don't arrest them, and
Speaker 5: if they happened to already be in removal proceedings, cancel
Speaker 5: them so that you can not take up that court
Speaker 5: plot with this kind of case you should be taking
Speaker 5: it with a criminal state. The Trump administration came in
Speaker 5: and canceled that and said everybody is equally an enforcement priority.
Speaker 5: There isn't one person who should be focusing on more
Speaker 5: than another. Because the theory was if anybody thought they
Speaker 5: were not a priority, that would mean that they would
Speaker 5: have impunity to live in the United States without fear
Speaker 5: of deportation, and they didn't want that. They wanted anybody
Speaker 5: who didn't have status in the United States to theoretically
Speaker 5: think that they could be deported at any time. Now,
Speaker 5: as a reality where these priorities implemented, still in a
Speaker 5: de facto manner, they probably were, and so you did
Speaker 5: probably still see more focus on criminal cases than on
Speaker 5: national security cases and on recent border arrivals. But nevertheless,
Speaker 5: there was a specific memo in the Trump administration saying
Speaker 5: we are not going to prioritize any specific group at
Speaker 5: the expense of another group, meaning any group was equally
Speaker 5: high as a priority, and so if you find anyone
Speaker 5: who could be deported, tried to deport that. So then
Speaker 5: the Binding administration comes in and issue a memo very
Speaker 5: similar to the Obama memo saying again, focus on recent
Speaker 5: border crossers, focus on national security threats, focus on criminals,
Speaker 5: and the State of Texas says that's not legal. You've
Speaker 5: got to focus on everybody like Trump was doing. We
Speaker 5: want to enjoin this, and that's where the Supreme Court. Ultimately,
Speaker 5: after the peral government lost in the district court often
Speaker 5: the Fit Circuit finally said that the State of Texas
Speaker 5: does not have standing to sue to say you're not
Speaker 5: sufficiently enforcing immigration law.
Speaker 1: So I believe that immigration advocates called President Obama the
Speaker 1: deporter in chief. So why would Texas and Louisiana object
Speaker 1: to a policy that's leading to, you know, a lot
Speaker 1: of arrests.
Speaker 5: Well, I think they believe that at the end of
Speaker 5: the day, if you don't have a memo that theoretically
Speaker 5: scares every single person in America that they might be
Speaker 5: deported at any moment, that that memo is then insufficient
Speaker 5: for their purposes. And so they did not like a
Speaker 5: memo that basically said that there were going to be
Speaker 5: groups of people that were deprioritized from deportation and that
Speaker 5: there would be other groups that would be prioritized. They
Speaker 5: preferred the situation under President Trump where everyone was technically
Speaker 5: subject to deportation, and that threat, that sort of enforcement
Speaker 5: by deterrence threat is a high priority for the immigration
Speaker 5: enforcement hawks of which the state of Sextus is and
Speaker 5: other states are where they believe that at the end
Speaker 5: of the day, that kind of nervousness needs to be
Speaker 5: in the immigrant community. And so that's what they were
Speaker 5: suing to reimpose.
Speaker 1: Again, the decision was based on standing. Explain what the
Speaker 1: court found.
Speaker 5: So what the Supreme Court said is, we're not even
Speaker 5: going to get into whether the federal government is legally
Speaker 5: enforcing the immigration law because we don't have to get there.
Speaker 5: What has to happen before any lawsuit even gets to
Speaker 5: the merit about whether the federal government is or isn't
Speaker 5: enforcing immigration law properly. Is it jet that standing to sue?
Speaker 5: And what standing is is the concept that you actually
Speaker 5: have a right to sue. Meaning right now, I may
Speaker 5: not like something I watch on TV where one character
Speaker 5: defeats another character, but I can't go to a court
Speaker 5: to sue because that really doesn't affect me. And if
Speaker 5: you take that concept out to this issue of state,
Speaker 5: what the Court is saying with regard to states is
Speaker 5: that even though there are many circumstances where a states
Speaker 5: consumed in this particular circumstance where a state is trying
Speaker 5: to sue the federal government saying we d not believe
Speaker 5: you are sufficiently enforcing the law. That is not a
Speaker 5: claim that in the hundreds of years of history of
Speaker 5: the United States, is one that any state has ever
Speaker 5: had the ability to win. And in fact, the two
Speaker 5: or three cases that have been decided in this realm
Speaker 5: generally where people say, hey, the federal government isn't sufficiently
Speaker 5: enforcing the law have all been denied for lack of fancing,
Speaker 5: Meaning it's very hard for anybody to see the federal
Speaker 5: government saying, I think that your enforcement is too lacked.
Speaker 5: I think the court should get involved in making the
Speaker 5: enforcement stronger. And at underlying logical common sense reasons is
Speaker 5: what is a court supposed to do if they agree
Speaker 5: and if the PLANETI wins, are they supposed to start saying, Hey,
Speaker 5: there's Steve on twenty fourth Johnson Street, go arrest him,
Speaker 5: and if you don't, we're going to hold you in
Speaker 5: consensive court. Here's Bobby, I'm thirty one Honey Lane. We're
Speaker 5: gonna arrestue if you don't go arrest Bobby. It's impossible,
Speaker 5: and courts are not law enforcement agencies, and how can
Speaker 5: this possibly be enforced by the court. And hence the
Speaker 5: court said, this is the traditional kind of case where
Speaker 5: there's no standing.
Speaker 1: So there was a lot of talk during the oral
Speaker 1: arguments about the fact that the federal government doesn't have
Speaker 1: the capacity to arrest every illegal immigrant in this country.
Speaker 1: Was that any part at all of the decision.
Speaker 5: Absolutely. They tried to say in the decision that you
Speaker 5: can't read this decision as saying that this is going
Speaker 5: to give tart blanche to the federal government to cease
Speaker 5: to enforce laws, that you can't read this decision as
Speaker 5: doing that, although a leader in his defense says that's
Speaker 5: exactly what this decision says. And even though they say
Speaker 5: it's not what it says, in the end, this is
Speaker 5: going to get extended this doctrine. What Justice kevinah who
Speaker 5: wrote the majority decision, said is no, if you advocate
Speaker 5: your enforcement, maybe come back and let's see and we
Speaker 5: can have a decision on whether you've got standing. But
Speaker 5: here there is no dispute that there is enforcement go
Speaker 5: out on and the issue is just whether it's enough enforcement.
Speaker 5: And because they say the last thirty years they fight
Speaker 5: of presidential administrations of both parties have said there's too
Speaker 5: many people who are here without status, had too few
Speaker 5: enforcement resources, so we can't enforce them for everybody. So
Speaker 5: we might as well make memos that talk about who's
Speaker 5: a priority and who isn't. That that is permissible because
Speaker 5: there is enforcement going on, as opposed to some future
Speaker 5: hypothetical scenario where if there was some sort of jubilee
Speaker 5: year where the government said we're not going to enforce
Speaker 5: laws on anybody for any reason. Both do whatever you want.
Speaker 5: So that might be able to be challenged in that
Speaker 5: future hypothetical case.
Speaker 1: So now could this influence other immigration cases that may
Speaker 1: reach the Supreme Court? For example DOCA.
Speaker 5: Well, so that's the interesting question that's being asked, what
Speaker 5: happens to DOCA? And so it depends how you look
Speaker 5: at it. The cases that were cited in this Supreme
Speaker 5: Court case of the United States versus Texas, were they
Speaker 5: exact same cases that were cited by the federal government
Speaker 5: with regard to DOCTA, meaning that they believe on the
Speaker 5: federal government end that the two parts the docas be
Speaker 5: we're not going to deport you parts, but also that
Speaker 5: we're going to give you a work permit part are
Speaker 5: both flip sides of the same coin of prosecutorial discretion,
Speaker 5: meaning that once the government decides that they're not going
Speaker 5: to deport you because you're such a low priority like
Speaker 5: one of these DOCA children, then what are you supposed
Speaker 5: to do when the child turns sixteen? Are you supposed
Speaker 5: to just let them be homeless and diable are the
Speaker 5: living or are you supposed to let them work so
Speaker 5: that the work is not separated from the decision to
Speaker 5: refrain from deportation. Whereas Justice Kindana appeared to say in
Speaker 5: his decision, well, we'll get back to DACA when we
Speaker 5: get to it. He didn't talk about DOCCA, but he
Speaker 5: said if we're talking about not just enforcement but enforcement
Speaker 5: plus benefits, that's not what we're talking about in this case.
Speaker 5: So he leaves the door open for a DOCCA challenge
Speaker 5: and says enforcement plus benefits may be different than just enforcement,
Speaker 5: and so it's going to come down to that question.
Speaker 5: What does the government. What does the Supreme Court think
Speaker 5: about the government's argument that giving someone you're not deporting
Speaker 5: the ability to legally work, is that part of the
Speaker 5: same prosecutorial discretion decision that's not reviewable or is that
Speaker 5: a new thing that thus makes it reviewable.
Speaker 1: So this theory that the Justice has decided this case
Speaker 1: on could be used if states challenge under enforcement of
Speaker 1: drug laws or gun laws, etc.
Speaker 5: Right is correct. Any time a state is challenging in
Speaker 5: the future anything related to a lack of environmental enforcement,
Speaker 5: lack of drug enforcement, lack of gun enforcement, whatever the
Speaker 5: topic is, it's going to be a very very hard
Speaker 5: challenge for a state to seem because again, the courts
Speaker 5: are saying, the coercive power of the federal government is
Speaker 5: not being used against anyone. No one is directly suffering
Speaker 5: as a result of this, and hence there's no standing.
Speaker 5: If you could actually show a human being who is
Speaker 5: being coerced by the government in some way, fine, there
Speaker 5: would be standing. But here, because there isn't anything, there
Speaker 5: is no standing. And then, of course, even if you win,
Speaker 5: what do you win. How do you get a court
Speaker 5: to become an enforcement body. That's where the courts say,
Speaker 5: we can't do that. We're Article three. Enforcement happened with
Speaker 5: Article two as that's the executive and you can't turn
Speaker 5: courts into enforcement agency. That's really the big mental block
Speaker 5: here that the justice is pad is what was the
Speaker 5: court supposed to do? Even in Texas one and nobody
Speaker 5: had a good answer to that.
Speaker 1: It's the second immigration victory for the administration at the
Speaker 1: Supreme Court in a year. Does that signal a change
Speaker 1: in the court or is it just based on the
Speaker 1: facts in law of each of these cases.
Speaker 5: Well, I do think you're seeing some very interesting trends. So,
Speaker 5: for instance, there were three immigration cases decided in the
Speaker 5: last seven days, and there was one case that yes,
Speaker 5: was decided against the foreign nationals related to this issue
Speaker 5: of whether obstruction of justice was requiring an actual investigation
Speaker 5: that was live to be taking place in order to
Speaker 5: deport the person. And even though they ruled that person
Speaker 5: could be deported, and the point was, you start to
Speaker 5: see Justice Gorsage really taking a hard line on deporting people.
Speaker 5: I find that to be a very interesting trend. He's
Speaker 5: basically saying, look, the government has to have very clear
Speaker 5: guidance before they can support people. And that's a very
Speaker 5: interesting thing. You've done that in a couple of cases
Speaker 5: last terments, now this case. So that's one interesting trend.
Speaker 5: And so the second interesting trend you're seeing is Roberts
Speaker 5: and Katana on the issue of challenges the government authority
Speaker 5: to make immigration memos need to have a more expansive
Speaker 5: view of the federal government's ability to operate in this state,
Speaker 5: the administrative state's ability to operate in the state. And
Speaker 5: so that I also find very interesting. And even Justice
Speaker 5: Cony Barrett on this same front, even though she wasn't
Speaker 5: on the majority opinion, she found a different concurring opinion
Speaker 5: on a different part of standing. I do think that
Speaker 5: both in the Remain in Mexico case and in this
Speaker 5: Prosecutorial Discretion case, that block of Justices Kavanaugh, Coony, Barrens,
Speaker 5: and Roberts seems to be saying, look, the states are
Speaker 5: going too far when they want to have say in
Speaker 5: the way immigration laws being enforced. They just have to
Speaker 5: stop doing that. And now we have multiple decisions saying
Speaker 5: that Remain in Mexico and now the Prosecutorial Discretion case,
Speaker 5: And so I think now we're returning sort of back
Speaker 5: to the future, back to the eighteen eighties original purist
Speaker 5: prudence here, which is that looks when the federal government
Speaker 5: is acting in a way that's consistent with the congressional
Speaker 5: grant of authority to the federal government. There's not really
Speaker 5: anything for the court to do here, and that's what
Speaker 5: we're seeing in the last couple of years.
Speaker 1: Coming up, i'll continue this conversation with Leon Fresco and
Speaker 1: we'll talk about two other immigration decisions the Court handed
Speaker 1: down last week. Leon, let's turn now to two other
Speaker 1: Supreme Court decisions from last week in criminal cases involving immigration.
Speaker 1: Tell us about.
Speaker 5: Those the two criminal cases that actually ended up being
Speaker 5: decided against the foreign nationals. But neither of those cases
Speaker 5: were very sympathetic cases to the four nationals, so they're not,
Speaker 5: in terms of their reach, not going to be very broad.
Speaker 5: So the first things is one about inducing people to
Speaker 5: either come to the United States illegally or stay in
Speaker 5: the United States illegally, and so that's been illegal for
Speaker 5: about one hundred years, and there's been several iterations of
Speaker 5: the statutes, the most recent one being in the fifties
Speaker 5: about whether you could make it illegal to induce people
Speaker 5: to either stay in the United States or to come
Speaker 5: to the United States. And so there was this creative
Speaker 5: theory that because the word was called induced, that induces speech,
Speaker 5: and that you would be violating the First Amendment to
Speaker 5: criminalize people for essentially saying, Grandma, please don't leave the
Speaker 5: United States, I know you're here unlawfully. Now, that's not
Speaker 5: what was happening in this case. In this case, there
Speaker 5: was an actual criminal, a person who committed two million
Speaker 5: dollars worth of fraud, inducing people to engage in a
Speaker 5: fake adoption scheme in order to get citizenship, which none
Speaker 5: of that works. And so, but that person was saying,
Speaker 5: because this statute permits the criminalization of someone telling their grandmother, grandma,
Speaker 5: please say don't go home, even though you're an illegal status,
Speaker 5: that that meant that the whole statute needed to be
Speaker 5: struck down under the person thatment ground, by the way,
Speaker 5: the place that was ever prosecuted. And what the court
Speaker 5: found was that that kind of conduct grandma police say
Speaker 5: was not actually written into the statute, and that the
Speaker 5: conduct of inducement actually had to be the intentional encouragement
Speaker 5: and facilitation of an illegal act, meaning, Hey, here's how
Speaker 5: you get a fake ID years, how you get face paperwork,
Speaker 5: here is how you cross the border illegally, go over there,
Speaker 5: go do you know that kind of thing? It couldn't
Speaker 5: just be Grandma police say in America, I will miss you.
Speaker 5: Because that's not actually facilitating in any way of the
Speaker 5: illegal act. So the court limited the way it's going
Speaker 5: to be read to say you actually had that conduct
Speaker 5: talking about facilitating the illegal acts. The speech hustle involves that,
Speaker 5: and if it didn't, you couldn't criminalize it. So that
Speaker 5: was that first case, and then in the second case,
Speaker 5: there was a dispute about people who are being deported
Speaker 5: for committing obstruction of justice. The question was whether you
Speaker 5: could be deported for committing obstruction of justice if there
Speaker 5: wasn't upending investigation. And so there were two kinds of cases.
Speaker 5: One where the person was trying to stop people from
Speaker 5: even speaking to the tops on a domestic violence case,
Speaker 5: and by doing that that would mean an investigation would
Speaker 5: never be launched, so it was pre investigation type obstruction.
Speaker 5: And in the second one, it was after the fact,
Speaker 5: meaning that everything ended, and then it charged the person
Speaker 5: or being an accessory to a crime after the fact.
Speaker 5: So one was pre investigation obstruction and one was post
Speaker 5: investigation obstruction. And so the question was could you be
Speaker 5: deported under the obstruction of justice ground of deportation if
Speaker 5: there wasn't upending investigation, And here six justices, all the
Speaker 5: conservative justices, said yes, you could be deported in this
Speaker 5: situation because in the end, the best time to obstruct
Speaker 5: justice is before an investigation. That's when you would benefit most. So,
Speaker 5: of course Congress meant all aspects of obstruction of justice.
Speaker 5: You didn't need an active, pending investigation in order to
Speaker 5: be deported for obstruction of justice. So in those two
Speaker 5: cases they rule against the immigrants in the cases, neither
Speaker 5: of those are very large cases of applicability.
Speaker 1: And can you reconcile the reasoning in those two criminal
Speaker 1: cases with the reasoning in the main case involving Texas
Speaker 1: and Louisiana.
Speaker 5: In both of those cases, they're basically trying to say
Speaker 5: that the common sense version of the rule remains in place.
Speaker 5: We're not going to start looking for creative ways to
Speaker 5: invalidate congressional statutes. So in a sense, it's consistent with
Speaker 5: the same concept in the larger prosecutorial discretion case, which
Speaker 5: is again Congress is allowing the federal government to have
Speaker 5: the say and how it's doing this, and whether the
Speaker 5: federal government says this is how we're going to enforce
Speaker 5: the law with regard to prosecutorial discussion. This is how
Speaker 5: we're going to enforce it. With regard to obstruction of justice.
Speaker 5: This is how we're going to enforce it with regards
Speaker 5: to inducements of someone staying here illegally or coming here illegally.
Speaker 5: The government's being given different widely in all of sometimes
Speaker 5: out foreign national sometimes it hurts foreign nationals, but the
Speaker 5: corn seems to be giving different every single time to
Speaker 5: the federal government's enforcement priorities here.
Speaker 1: I always appreciate your insights, Leon, Thanks so much. That's
Speaker 1: Leon Fresco, a partner at Holland and Knight. And that's
Speaker 1: it for this edition of The Bloomberg Law Show. Remember
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