WEBVTT - Immigration Victory for Biden Administration

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>It's the second immigration victory for the Biden administration at

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<v Speaker 1>the Supreme Court in a year. By an eight to

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<v Speaker 1>one vote. That Justice is rejected the challenge by Texas

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<v Speaker 1>and Louisiana to a Biden policy that prioritizes deporting immigrants

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<v Speaker 1>who recently crossed the border or who are considered the

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<v Speaker 1>greatest threat to public safety. The Court held that the

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<v Speaker 1>Republican states lack the legal standing or right to sue something.

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<v Speaker 1>Several justices, including Elena Kagan, pointed out during the oral arguments.

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<v Speaker 2>Immigration policy is supposed to be the zenith of federal power,

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<v Speaker 2>and is supposed to be the zenith of executive power,

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<v Speaker 2>and instead we're creating a system where a combination of

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<v Speaker 2>states and courts can bring immigration policy to a dead halt.

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<v Speaker 1>And Justice Brett Cavanaugh, who wrote the majority opinion, had

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<v Speaker 1>pushed the Texas Solicitor General on whether allowing this suit

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<v Speaker 1>would mean that states could challenge other federal policies.

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<v Speaker 3>Could a state challenge the president's exercise of war powers,

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<v Speaker 3>for example, being a violation of the Constitution or the

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<v Speaker 3>War Powers Resolution? They raised that as an issue that

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<v Speaker 3>your theory would lead to.

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<v Speaker 4>I don't believe, say your honor in part because for example,

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<v Speaker 4>why not, well, definitely because to the state from its

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<v Speaker 4>people going into a foreign war.

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<v Speaker 3>So why couldn't the state then challenge under your theory.

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<v Speaker 1>Here joining me is Leon Fresco, a partner at Holland

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<v Speaker 1>and Knight and the former head of the Department of

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<v Speaker 1>Justice's Office of Immigration Litigation. Leon how big a victory

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<v Speaker 1>was this for the Biden administration.

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<v Speaker 5>This was absolutely a tremendous victory from the same point

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<v Speaker 5>of procutorial discression priorities that the Biden administration has been

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<v Speaker 5>trying to implement and since the beginning of the Biden administration,

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<v Speaker 5>and they've been thwarted. So we're talking about twenty twenty one,

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<v Speaker 5>twenty twenty two, and now halfway through twenty twenty three,

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<v Speaker 5>and finally the Bide administration is going to be able

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<v Speaker 5>to have these prosecutorial discretion priorities so that it's no

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<v Speaker 5>longer a decision as to the discretion of the local

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<v Speaker 5>ICE office in your area to decide whether they are

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<v Speaker 5>going to put you in removal proceedings or not, but

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<v Speaker 5>instead you'll be able to follow this particular memo and

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<v Speaker 5>be able to say the ICE, I'm not within the

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<v Speaker 5>prosecutorial enforcement priority, so mycations taken off the docket, and

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<v Speaker 5>I shouldn't be deported and you should focus on these

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<v Speaker 5>larger national security or criminal priorities that are in your memo.

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<v Speaker 1>So explain what the Biden administration's policy is compared to

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<v Speaker 1>what the Trump administration's policy was.

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<v Speaker 5>So you have to start with the end of the

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<v Speaker 5>Obama administration and then the Trump administration and now the

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<v Speaker 5>Biden administration. But at the end of the Bomba administration

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<v Speaker 5>was the first time that an actual manimal was issued

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<v Speaker 5>like this saying, look, if you are not a criminal,

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<v Speaker 5>a recent border arrival, or a national security threat, you

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<v Speaker 5>are with the bottom of the priority list for ICE deportation,

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<v Speaker 5>meaning I should be focusing all of its resources on criminals,

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<v Speaker 5>national security threats, and recent border arrival. And hence, if

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<v Speaker 5>you find somebody who's been here ten twenty years, don't

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<v Speaker 5>place that person into removal proceedings, don't arrest them, and

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<v Speaker 5>if they happened to already be in removal proceedings, cancel

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<v Speaker 5>them so that you can not take up that court

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<v Speaker 5>plot with this kind of case you should be taking

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<v Speaker 5>it with a criminal state. The Trump administration came in

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<v Speaker 5>and canceled that and said everybody is equally an enforcement priority.

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<v Speaker 5>There isn't one person who should be focusing on more

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<v Speaker 5>than another. Because the theory was if anybody thought they

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<v Speaker 5>were not a priority, that would mean that they would

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<v Speaker 5>have impunity to live in the United States without fear

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<v Speaker 5>of deportation, and they didn't want that. They wanted anybody

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<v Speaker 5>who didn't have status in the United States to theoretically

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<v Speaker 5>think that they could be deported at any time. Now,

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<v Speaker 5>as a reality where these priorities implemented, still in a

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<v Speaker 5>de facto manner, they probably were, and so you did

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<v Speaker 5>probably still see more focus on criminal cases than on

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<v Speaker 5>national security cases and on recent border arrivals. But nevertheless,

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<v Speaker 5>there was a specific memo in the Trump administration saying

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<v Speaker 5>we are not going to prioritize any specific group at

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<v Speaker 5>the expense of another group, meaning any group was equally

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<v Speaker 5>high as a priority, and so if you find anyone

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<v Speaker 5>who could be deported, tried to deport that. So then

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<v Speaker 5>the Binding administration comes in and issue a memo very

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<v Speaker 5>similar to the Obama memo saying again, focus on recent

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<v Speaker 5>border crossers, focus on national security threats, focus on criminals,

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<v Speaker 5>and the State of Texas says that's not legal. You've

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<v Speaker 5>got to focus on everybody like Trump was doing. We

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<v Speaker 5>want to enjoin this, and that's where the Supreme Court. Ultimately,

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<v Speaker 5>after the peral government lost in the district court often

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<v Speaker 5>the Fit Circuit finally said that the State of Texas

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<v Speaker 5>does not have standing to sue to say you're not

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<v Speaker 5>sufficiently enforcing immigration law.

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<v Speaker 1>So I believe that immigration advocates called President Obama the

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<v Speaker 1>deporter in chief. So why would Texas and Louisiana object

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<v Speaker 1>to a policy that's leading to, you know, a lot

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<v Speaker 1>of arrests.

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<v Speaker 5>Well, I think they believe that at the end of

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<v Speaker 5>the day, if you don't have a memo that theoretically

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<v Speaker 5>scares every single person in America that they might be

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<v Speaker 5>deported at any moment, that that memo is then insufficient

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<v Speaker 5>for their purposes. And so they did not like a

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<v Speaker 5>memo that basically said that there were going to be

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<v Speaker 5>groups of people that were deprioritized from deportation and that

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<v Speaker 5>there would be other groups that would be prioritized. They

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<v Speaker 5>preferred the situation under President Trump where everyone was technically

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<v Speaker 5>subject to deportation, and that threat, that sort of enforcement

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<v Speaker 5>by deterrence threat is a high priority for the immigration

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<v Speaker 5>enforcement hawks of which the state of Sextus is and

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<v Speaker 5>other states are where they believe that at the end

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<v Speaker 5>of the day, that kind of nervousness needs to be

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<v Speaker 5>in the immigrant community. And so that's what they were

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<v Speaker 5>suing to reimpose.

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<v Speaker 1>Again, the decision was based on standing. Explain what the

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<v Speaker 1>court found.

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<v Speaker 5>So what the Supreme Court said is, we're not even

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<v Speaker 5>going to get into whether the federal government is legally

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<v Speaker 5>enforcing the immigration law because we don't have to get there.

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<v Speaker 5>What has to happen before any lawsuit even gets to

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<v Speaker 5>the merit about whether the federal government is or isn't

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<v Speaker 5>enforcing immigration law properly. Is it jet that standing to sue?

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<v Speaker 5>And what standing is is the concept that you actually

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<v Speaker 5>have a right to sue. Meaning right now, I may

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<v Speaker 5>not like something I watch on TV where one character

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<v Speaker 5>defeats another character, but I can't go to a court

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<v Speaker 5>to sue because that really doesn't affect me. And if

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<v Speaker 5>you take that concept out to this issue of state,

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<v Speaker 5>what the Court is saying with regard to states is

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<v Speaker 5>that even though there are many circumstances where a states

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<v Speaker 5>consumed in this particular circumstance where a state is trying

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<v Speaker 5>to sue the federal government saying we d not believe

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<v Speaker 5>you are sufficiently enforcing the law. That is not a

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<v Speaker 5>claim that in the hundreds of years of history of

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<v Speaker 5>the United States, is one that any state has ever

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<v Speaker 5>had the ability to win. And in fact, the two

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<v Speaker 5>or three cases that have been decided in this realm

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<v Speaker 5>generally where people say, hey, the federal government isn't sufficiently

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<v Speaker 5>enforcing the law have all been denied for lack of fancing,

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<v Speaker 5>Meaning it's very hard for anybody to see the federal

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<v Speaker 5>government saying, I think that your enforcement is too lacked.

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<v Speaker 5>I think the court should get involved in making the

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<v Speaker 5>enforcement stronger. And at underlying logical common sense reasons is

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<v Speaker 5>what is a court supposed to do if they agree

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<v Speaker 5>and if the PLANETI wins, are they supposed to start saying, Hey,

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<v Speaker 5>there's Steve on twenty fourth Johnson Street, go arrest him,

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<v Speaker 5>and if you don't, we're going to hold you in

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<v Speaker 5>consensive court. Here's Bobby, I'm thirty one Honey Lane. We're

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<v Speaker 5>gonna arrestue if you don't go arrest Bobby. It's impossible,

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<v Speaker 5>and courts are not law enforcement agencies, and how can

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<v Speaker 5>this possibly be enforced by the court. And hence the

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<v Speaker 5>court said, this is the traditional kind of case where

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<v Speaker 5>there's no standing.

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<v Speaker 1>So there was a lot of talk during the oral

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<v Speaker 1>arguments about the fact that the federal government doesn't have

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<v Speaker 1>the capacity to arrest every illegal immigrant in this country.

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<v Speaker 1>Was that any part at all of the decision.

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<v Speaker 5>Absolutely. They tried to say in the decision that you

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<v Speaker 5>can't read this decision as saying that this is going

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<v Speaker 5>to give tart blanche to the federal government to cease

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<v Speaker 5>to enforce laws, that you can't read this decision as

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<v Speaker 5>doing that, although a leader in his defense says that's

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<v Speaker 5>exactly what this decision says. And even though they say

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<v Speaker 5>it's not what it says, in the end, this is

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<v Speaker 5>going to get extended this doctrine. What Justice kevinah who

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<v Speaker 5>wrote the majority decision, said is no, if you advocate

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<v Speaker 5>your enforcement, maybe come back and let's see and we

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<v Speaker 5>can have a decision on whether you've got standing. But

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<v Speaker 5>here there is no dispute that there is enforcement go

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<v Speaker 5>out on and the issue is just whether it's enough enforcement.

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<v Speaker 5>And because they say the last thirty years they fight

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<v Speaker 5>of presidential administrations of both parties have said there's too

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<v Speaker 5>many people who are here without status, had too few

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<v Speaker 5>enforcement resources, so we can't enforce them for everybody. So

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<v Speaker 5>we might as well make memos that talk about who's

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<v Speaker 5>a priority and who isn't. That that is permissible because

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<v Speaker 5>there is enforcement going on, as opposed to some future

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<v Speaker 5>hypothetical scenario where if there was some sort of jubilee

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<v Speaker 5>year where the government said we're not going to enforce

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<v Speaker 5>laws on anybody for any reason. Both do whatever you want.

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<v Speaker 5>So that might be able to be challenged in that

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<v Speaker 5>future hypothetical case.

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<v Speaker 1>So now could this influence other immigration cases that may

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<v Speaker 1>reach the Supreme Court? For example DOCA.

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<v Speaker 5>Well, so that's the interesting question that's being asked, what

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<v Speaker 5>happens to DOCA? And so it depends how you look

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<v Speaker 5>at it. The cases that were cited in this Supreme

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<v Speaker 5>Court case of the United States versus Texas, were they

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<v Speaker 5>exact same cases that were cited by the federal government

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<v Speaker 5>with regard to DOCTA, meaning that they believe on the

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<v Speaker 5>federal government end that the two parts the docas be

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<v Speaker 5>we're not going to deport you parts, but also that

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<v Speaker 5>we're going to give you a work permit part are

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<v Speaker 5>both flip sides of the same coin of prosecutorial discretion,

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<v Speaker 5>meaning that once the government decides that they're not going

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<v Speaker 5>to deport you because you're such a low priority like

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<v Speaker 5>one of these DOCA children, then what are you supposed

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<v Speaker 5>to do when the child turns sixteen? Are you supposed

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<v Speaker 5>to just let them be homeless and diable are the

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<v Speaker 5>living or are you supposed to let them work so

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<v Speaker 5>that the work is not separated from the decision to

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<v Speaker 5>refrain from deportation. Whereas Justice Kindana appeared to say in

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<v Speaker 5>his decision, well, we'll get back to DACA when we

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<v Speaker 5>get to it. He didn't talk about DOCCA, but he

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<v Speaker 5>said if we're talking about not just enforcement but enforcement

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<v Speaker 5>plus benefits, that's not what we're talking about in this case.

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<v Speaker 5>So he leaves the door open for a DOCCA challenge

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<v Speaker 5>and says enforcement plus benefits may be different than just enforcement,

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<v Speaker 5>and so it's going to come down to that question.

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<v Speaker 5>What does the government. What does the Supreme Court think

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<v Speaker 5>about the government's argument that giving someone you're not deporting

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<v Speaker 5>the ability to legally work, is that part of the

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<v Speaker 5>same prosecutorial discretion decision that's not reviewable or is that

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<v Speaker 5>a new thing that thus makes it reviewable.

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<v Speaker 1>So this theory that the Justice has decided this case

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<v Speaker 1>on could be used if states challenge under enforcement of

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<v Speaker 1>drug laws or gun laws, etc.

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<v Speaker 5>Right is correct. Any time a state is challenging in

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<v Speaker 5>the future anything related to a lack of environmental enforcement,

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<v Speaker 5>lack of drug enforcement, lack of gun enforcement, whatever the

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<v Speaker 5>topic is, it's going to be a very very hard

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<v Speaker 5>challenge for a state to seem because again, the courts

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<v Speaker 5>are saying, the coercive power of the federal government is

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<v Speaker 5>not being used against anyone. No one is directly suffering

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<v Speaker 5>as a result of this, and hence there's no standing.

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<v Speaker 5>If you could actually show a human being who is

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<v Speaker 5>being coerced by the government in some way, fine, there

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<v Speaker 5>would be standing. But here, because there isn't anything, there

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<v Speaker 5>is no standing. And then, of course, even if you win,

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<v Speaker 5>what do you win. How do you get a court

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<v Speaker 5>to become an enforcement body. That's where the courts say,

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<v Speaker 5>we can't do that. We're Article three. Enforcement happened with

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<v Speaker 5>Article two as that's the executive and you can't turn

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<v Speaker 5>courts into enforcement agency. That's really the big mental block

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<v Speaker 5>here that the justice is pad is what was the

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<v Speaker 5>court supposed to do? Even in Texas one and nobody

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<v Speaker 5>had a good answer to that.

0:13:20.040 --> 0:13:23.360
<v Speaker 1>It's the second immigration victory for the administration at the

0:13:23.360 --> 0:13:26.960
<v Speaker 1>Supreme Court in a year. Does that signal a change

0:13:26.960 --> 0:13:30.280
<v Speaker 1>in the court or is it just based on the

0:13:30.320 --> 0:13:32.240
<v Speaker 1>facts in law of each of these cases.

0:13:32.720 --> 0:13:35.960
<v Speaker 5>Well, I do think you're seeing some very interesting trends. So,

0:13:36.120 --> 0:13:39.680
<v Speaker 5>for instance, there were three immigration cases decided in the

0:13:39.720 --> 0:13:42.960
<v Speaker 5>last seven days, and there was one case that yes,

0:13:43.160 --> 0:13:46.880
<v Speaker 5>was decided against the foreign nationals related to this issue

0:13:46.880 --> 0:13:52.679
<v Speaker 5>of whether obstruction of justice was requiring an actual investigation

0:13:52.880 --> 0:13:55.840
<v Speaker 5>that was live to be taking place in order to

0:13:55.840 --> 0:13:58.960
<v Speaker 5>deport the person. And even though they ruled that person

0:13:59.040 --> 0:14:01.960
<v Speaker 5>could be deported, and the point was, you start to

0:14:02.000 --> 0:14:08.000
<v Speaker 5>see Justice Gorsage really taking a hard line on deporting people.

0:14:08.400 --> 0:14:11.120
<v Speaker 5>I find that to be a very interesting trend. He's

0:14:11.160 --> 0:14:14.320
<v Speaker 5>basically saying, look, the government has to have very clear

0:14:14.920 --> 0:14:18.200
<v Speaker 5>guidance before they can support people. And that's a very

0:14:18.200 --> 0:14:20.480
<v Speaker 5>interesting thing. You've done that in a couple of cases

0:14:20.600 --> 0:14:23.400
<v Speaker 5>last terments, now this case. So that's one interesting trend.

0:14:23.600 --> 0:14:27.000
<v Speaker 5>And so the second interesting trend you're seeing is Roberts

0:14:27.080 --> 0:14:33.200
<v Speaker 5>and Katana on the issue of challenges the government authority

0:14:33.440 --> 0:14:37.280
<v Speaker 5>to make immigration memos need to have a more expansive

0:14:37.360 --> 0:14:41.520
<v Speaker 5>view of the federal government's ability to operate in this state,

0:14:41.680 --> 0:14:45.040
<v Speaker 5>the administrative state's ability to operate in the state. And

0:14:45.120 --> 0:14:49.120
<v Speaker 5>so that I also find very interesting. And even Justice

0:14:49.160 --> 0:14:52.120
<v Speaker 5>Cony Barrett on this same front, even though she wasn't

0:14:52.480 --> 0:14:55.640
<v Speaker 5>on the majority opinion, she found a different concurring opinion

0:14:55.680 --> 0:14:58.240
<v Speaker 5>on a different part of standing. I do think that

0:14:58.360 --> 0:15:00.960
<v Speaker 5>both in the Remain in Mexico case and in this

0:15:01.080 --> 0:15:06.800
<v Speaker 5>Prosecutorial Discretion case, that block of Justices Kavanaugh, Coony, Barrens,

0:15:07.240 --> 0:15:10.160
<v Speaker 5>and Roberts seems to be saying, look, the states are

0:15:10.160 --> 0:15:13.880
<v Speaker 5>going too far when they want to have say in

0:15:14.320 --> 0:15:17.200
<v Speaker 5>the way immigration laws being enforced. They just have to

0:15:17.240 --> 0:15:21.080
<v Speaker 5>stop doing that. And now we have multiple decisions saying

0:15:21.080 --> 0:15:25.440
<v Speaker 5>that Remain in Mexico and now the Prosecutorial Discretion case,

0:15:25.880 --> 0:15:28.880
<v Speaker 5>And so I think now we're returning sort of back

0:15:28.880 --> 0:15:32.840
<v Speaker 5>to the future, back to the eighteen eighties original purist

0:15:32.880 --> 0:15:35.520
<v Speaker 5>prudence here, which is that looks when the federal government

0:15:35.600 --> 0:15:39.800
<v Speaker 5>is acting in a way that's consistent with the congressional

0:15:39.800 --> 0:15:42.880
<v Speaker 5>grant of authority to the federal government. There's not really

0:15:42.920 --> 0:15:46.120
<v Speaker 5>anything for the court to do here, and that's what

0:15:46.160 --> 0:15:48.000
<v Speaker 5>we're seeing in the last couple of years.

0:15:48.240 --> 0:15:51.880
<v Speaker 1>Coming up, i'll continue this conversation with Leon Fresco and

0:15:51.920 --> 0:15:55.040
<v Speaker 1>we'll talk about two other immigration decisions the Court handed

0:15:55.080 --> 0:15:57.880
<v Speaker 1>down last week. Leon, let's turn now to two other

0:15:57.960 --> 0:16:03.520
<v Speaker 1>Supreme Court decisions from last week in criminal cases involving immigration.

0:16:03.800 --> 0:16:04.640
<v Speaker 1>Tell us about.

0:16:04.480 --> 0:16:08.240
<v Speaker 5>Those the two criminal cases that actually ended up being

0:16:08.360 --> 0:16:13.320
<v Speaker 5>decided against the foreign nationals. But neither of those cases

0:16:13.400 --> 0:16:16.440
<v Speaker 5>were very sympathetic cases to the four nationals, so they're not,

0:16:16.560 --> 0:16:18.800
<v Speaker 5>in terms of their reach, not going to be very broad.

0:16:19.280 --> 0:16:22.880
<v Speaker 5>So the first things is one about inducing people to

0:16:23.000 --> 0:16:26.520
<v Speaker 5>either come to the United States illegally or stay in

0:16:26.560 --> 0:16:29.600
<v Speaker 5>the United States illegally, and so that's been illegal for

0:16:29.640 --> 0:16:33.040
<v Speaker 5>about one hundred years, and there's been several iterations of

0:16:33.080 --> 0:16:35.840
<v Speaker 5>the statutes, the most recent one being in the fifties

0:16:36.160 --> 0:16:40.760
<v Speaker 5>about whether you could make it illegal to induce people

0:16:40.840 --> 0:16:42.960
<v Speaker 5>to either stay in the United States or to come

0:16:43.040 --> 0:16:45.920
<v Speaker 5>to the United States. And so there was this creative

0:16:46.240 --> 0:16:51.280
<v Speaker 5>theory that because the word was called induced, that induces speech,

0:16:51.880 --> 0:16:54.920
<v Speaker 5>and that you would be violating the First Amendment to

0:16:55.360 --> 0:16:59.920
<v Speaker 5>criminalize people for essentially saying, Grandma, please don't leave the

0:17:00.080 --> 0:17:03.280
<v Speaker 5>United States, I know you're here unlawfully. Now, that's not

0:17:03.320 --> 0:17:05.720
<v Speaker 5>what was happening in this case. In this case, there

0:17:05.760 --> 0:17:09.280
<v Speaker 5>was an actual criminal, a person who committed two million

0:17:09.320 --> 0:17:12.600
<v Speaker 5>dollars worth of fraud, inducing people to engage in a

0:17:12.680 --> 0:17:16.560
<v Speaker 5>fake adoption scheme in order to get citizenship, which none

0:17:16.600 --> 0:17:20.160
<v Speaker 5>of that works. And so, but that person was saying,

0:17:20.720 --> 0:17:26.760
<v Speaker 5>because this statute permits the criminalization of someone telling their grandmother, grandma,

0:17:26.920 --> 0:17:30.760
<v Speaker 5>please say don't go home, even though you're an illegal status,

0:17:30.960 --> 0:17:33.280
<v Speaker 5>that that meant that the whole statute needed to be

0:17:33.359 --> 0:17:36.800
<v Speaker 5>struck down under the person thatment ground, by the way,

0:17:36.880 --> 0:17:39.840
<v Speaker 5>the place that was ever prosecuted. And what the court

0:17:39.960 --> 0:17:43.919
<v Speaker 5>found was that that kind of conduct grandma police say

0:17:44.600 --> 0:17:47.920
<v Speaker 5>was not actually written into the statute, and that the

0:17:48.040 --> 0:17:53.240
<v Speaker 5>conduct of inducement actually had to be the intentional encouragement

0:17:53.320 --> 0:17:58.800
<v Speaker 5>and facilitation of an illegal act, meaning, Hey, here's how

0:17:58.840 --> 0:18:02.760
<v Speaker 5>you get a fake ID years, how you get face paperwork,

0:18:02.880 --> 0:18:06.520
<v Speaker 5>here is how you cross the border illegally, go over there,

0:18:06.720 --> 0:18:09.160
<v Speaker 5>go do you know that kind of thing? It couldn't

0:18:09.160 --> 0:18:12.560
<v Speaker 5>just be Grandma police say in America, I will miss you.

0:18:12.680 --> 0:18:16.520
<v Speaker 5>Because that's not actually facilitating in any way of the

0:18:16.520 --> 0:18:20.359
<v Speaker 5>illegal act. So the court limited the way it's going

0:18:20.440 --> 0:18:23.560
<v Speaker 5>to be read to say you actually had that conduct

0:18:23.960 --> 0:18:28.720
<v Speaker 5>talking about facilitating the illegal acts. The speech hustle involves that,

0:18:29.119 --> 0:18:32.000
<v Speaker 5>and if it didn't, you couldn't criminalize it. So that

0:18:32.200 --> 0:18:35.040
<v Speaker 5>was that first case, and then in the second case,

0:18:35.040 --> 0:18:38.840
<v Speaker 5>there was a dispute about people who are being deported

0:18:38.880 --> 0:18:43.840
<v Speaker 5>for committing obstruction of justice. The question was whether you

0:18:43.880 --> 0:18:47.360
<v Speaker 5>could be deported for committing obstruction of justice if there

0:18:47.440 --> 0:18:50.720
<v Speaker 5>wasn't upending investigation. And so there were two kinds of cases.

0:18:51.240 --> 0:18:54.960
<v Speaker 5>One where the person was trying to stop people from

0:18:55.000 --> 0:18:58.080
<v Speaker 5>even speaking to the tops on a domestic violence case,

0:18:58.320 --> 0:19:01.200
<v Speaker 5>and by doing that that would mean an investigation would

0:19:01.240 --> 0:19:05.119
<v Speaker 5>never be launched, so it was pre investigation type obstruction.

0:19:05.880 --> 0:19:08.399
<v Speaker 5>And in the second one, it was after the fact,

0:19:08.560 --> 0:19:11.840
<v Speaker 5>meaning that everything ended, and then it charged the person

0:19:12.480 --> 0:19:15.480
<v Speaker 5>or being an accessory to a crime after the fact.

0:19:15.560 --> 0:19:19.359
<v Speaker 5>So one was pre investigation obstruction and one was post

0:19:19.400 --> 0:19:24.320
<v Speaker 5>investigation obstruction. And so the question was could you be

0:19:24.480 --> 0:19:29.400
<v Speaker 5>deported under the obstruction of justice ground of deportation if

0:19:29.400 --> 0:19:34.359
<v Speaker 5>there wasn't upending investigation, And here six justices, all the

0:19:34.480 --> 0:19:40.080
<v Speaker 5>conservative justices, said yes, you could be deported in this

0:19:40.200 --> 0:19:43.760
<v Speaker 5>situation because in the end, the best time to obstruct

0:19:43.880 --> 0:19:47.960
<v Speaker 5>justice is before an investigation. That's when you would benefit most. So,

0:19:48.560 --> 0:19:52.680
<v Speaker 5>of course Congress meant all aspects of obstruction of justice.

0:19:52.800 --> 0:19:56.199
<v Speaker 5>You didn't need an active, pending investigation in order to

0:19:56.200 --> 0:19:59.240
<v Speaker 5>be deported for obstruction of justice. So in those two

0:19:59.280 --> 0:20:02.480
<v Speaker 5>cases they rule against the immigrants in the cases, neither

0:20:02.520 --> 0:20:06.600
<v Speaker 5>of those are very large cases of applicability.

0:20:06.240 --> 0:20:09.280
<v Speaker 1>And can you reconcile the reasoning in those two criminal

0:20:09.359 --> 0:20:12.640
<v Speaker 1>cases with the reasoning in the main case involving Texas

0:20:12.640 --> 0:20:13.760
<v Speaker 1>and Louisiana.

0:20:13.880 --> 0:20:16.960
<v Speaker 5>In both of those cases, they're basically trying to say

0:20:17.000 --> 0:20:20.879
<v Speaker 5>that the common sense version of the rule remains in place.

0:20:20.880 --> 0:20:23.520
<v Speaker 5>We're not going to start looking for creative ways to

0:20:23.640 --> 0:20:28.159
<v Speaker 5>invalidate congressional statutes. So in a sense, it's consistent with

0:20:28.920 --> 0:20:32.960
<v Speaker 5>the same concept in the larger prosecutorial discretion case, which

0:20:32.960 --> 0:20:36.600
<v Speaker 5>is again Congress is allowing the federal government to have

0:20:36.800 --> 0:20:39.240
<v Speaker 5>the say and how it's doing this, and whether the

0:20:39.240 --> 0:20:42.159
<v Speaker 5>federal government says this is how we're going to enforce

0:20:42.200 --> 0:20:45.239
<v Speaker 5>the law with regard to prosecutorial discussion. This is how

0:20:45.240 --> 0:20:47.840
<v Speaker 5>we're going to enforce it. With regard to obstruction of justice.

0:20:48.040 --> 0:20:50.400
<v Speaker 5>This is how we're going to enforce it with regards

0:20:50.440 --> 0:20:56.040
<v Speaker 5>to inducements of someone staying here illegally or coming here illegally.

0:20:56.520 --> 0:21:01.640
<v Speaker 5>The government's being given different widely in all of sometimes

0:21:01.640 --> 0:21:05.480
<v Speaker 5>out foreign national sometimes it hurts foreign nationals, but the

0:21:05.560 --> 0:21:08.639
<v Speaker 5>corn seems to be giving different every single time to

0:21:09.080 --> 0:21:11.679
<v Speaker 5>the federal government's enforcement priorities here.

0:21:11.840 --> 0:21:15.040
<v Speaker 1>I always appreciate your insights, Leon, Thanks so much. That's

0:21:15.160 --> 0:21:18.160
<v Speaker 1>Leon Fresco, a partner at Holland and Knight. And that's

0:21:18.200 --> 0:21:20.840
<v Speaker 1>it for this edition of The Bloomberg Law Show. Remember

0:21:20.840 --> 0:21:22.959
<v Speaker 1>you can always get the latest legal news on our

0:21:22.960 --> 0:21:27.119
<v Speaker 1>Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

0:21:27.320 --> 0:21:32.359
<v Speaker 1>and at www dot Bloomberg dot com, slash podcast Slash Law,

0:21:32.760 --> 0:21:35.320
<v Speaker 1>and remember to tune into The Bloomberg Law Show every

0:21:35.400 --> 0:21:39.280
<v Speaker 1>weeknight at ten pm Wall Street Time. I'm June Grosso

0:21:39.440 --> 0:21:41.040
<v Speaker 1>and you're listening to Bloomberg