WEBVTT - Supreme Court Rules Against Unions Again 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:08.880 --> 0:00:11.760 The Supreme Court has ruled that the government can indefinitely 0:00:11.800 --> 0:00:15.360 detain certain immigrants who re entered the country illegally and 0:00:15.400 --> 0:00:18.759 say they'll face persecution or torture if they're deported to 0:00:18.760 --> 0:00:21.520 their native countries. In a six or three decision down 0:00:21.560 --> 0:00:25.000 audiological lines, the Court held that the immigrants are not 0:00:25.200 --> 0:00:27.840 entitled to a hearing about whether they should be released 0:00:28.080 --> 0:00:31.160 while their cases work their way through the system. Joining 0:00:31.200 --> 0:00:34.360 me is Leon Fresco, a partner at Hollandon Knight Leon. 0:00:34.440 --> 0:00:38.680 Who are the immigrants? This decision concerns, Well, the group 0:00:38.840 --> 0:00:42.680 is actually small in terms of written large the amount 0:00:42.720 --> 0:00:45.360 of people that come to the border, but in a 0:00:45.440 --> 0:00:49.159 border certain situation could end up being actually a significant 0:00:49.200 --> 0:00:52.000 number of people. And that's because it's the group of 0:00:52.040 --> 0:00:55.440 people who have been deported any time in the past 0:00:56.120 --> 0:00:58.480 and who seeks to come back and re enter the 0:00:58.600 --> 0:01:03.440 United States. I've or they've been ordered deported and asked 0:01:03.560 --> 0:01:07.800 for not asylum because they're not eligible for asylum, but 0:01:07.959 --> 0:01:12.800 basically a release from a second deportation called withholding of 0:01:12.920 --> 0:01:15.959 removal that says that the country that they're a citizen 0:01:16.080 --> 0:01:19.440 from is so dangerous that they will be persecuted there. 0:01:20.040 --> 0:01:23.920 So why aren't they eligible for asylum? Well, what happens 0:01:24.040 --> 0:01:28.000 is you're only eligible for asylum, which is a specific 0:01:28.040 --> 0:01:30.720 type of relief that actually gives you a pass to 0:01:30.840 --> 0:01:34.280 citizenship in the United States if you apply for it 0:01:34.760 --> 0:01:38.360 when you first enter the United States and are not 0:01:38.600 --> 0:01:43.760 ordered deported. But if you've been ordered deported previously and 0:01:43.880 --> 0:01:49.680 try to re enter illegally and are apprehended re entering illegally, 0:01:50.240 --> 0:01:54.120 then you're not eligible for asylum. You're only eligible for 0:01:54.360 --> 0:01:58.760 something called withholding of removal, which serves the same purpose 0:01:58.840 --> 0:02:01.440 as asylum, and that which is that you don't get 0:02:01.440 --> 0:02:04.600 supported to the country you're afraid of being deported to. 0:02:05.120 --> 0:02:08.160 But does that give you a path to citizenship? You're 0:02:08.280 --> 0:02:14.160 only in America in lux until such time as the 0:02:14.200 --> 0:02:16.760 crisis in your country is over. Not for some people 0:02:17.040 --> 0:02:19.360 that ends up being the rest of their lives, but 0:02:19.440 --> 0:02:22.640 other people could be removed if the situation changes in 0:02:22.680 --> 0:02:26.760 their country. All right, So tell us about the majority opinions. 0:02:26.880 --> 0:02:30.160 So this case is a difficult case because it's a 0:02:30.240 --> 0:02:34.359 case about when someone goes through this process of re 0:02:34.520 --> 0:02:38.840 entering the United States. Are they allowed to have bob 0:02:39.040 --> 0:02:42.200 meaning do they have to stay in detention during the 0:02:42.200 --> 0:02:45.280 whole time that they're asking for this withholding of removal 0:02:45.360 --> 0:02:48.440 release or will they be you know, will they be 0:02:49.160 --> 0:02:51.720 are able to ask for bond and be released on 0:02:51.800 --> 0:02:54.680 conditions of release or could they be detained for up 0:02:54.720 --> 0:02:58.720 to one year or two years while they're asking for release. 0:02:59.160 --> 0:03:03.559 And so all of the administrations, including the Biden administration, 0:03:03.639 --> 0:03:06.640 so you have Obama, you have Trump, that you have Biden, 0:03:07.200 --> 0:03:10.400 have said that in this group of people who is 0:03:10.520 --> 0:03:15.680 re entering the United States, they're subject to detention under 0:03:15.720 --> 0:03:20.440 a statute that says, when we're trying to deport a 0:03:20.520 --> 0:03:25.320 person who's already been ordered deported, we are allowed to 0:03:25.400 --> 0:03:29.320 detain them without fonds. That's been the position of the 0:03:29.400 --> 0:03:35.560 last three administrations. The litigant position, the the non citizens said, know, 0:03:36.320 --> 0:03:40.520 what we're subject to is a detention provision that applies 0:03:40.560 --> 0:03:44.040 to people who are going through brand new proceedings, because 0:03:44.120 --> 0:03:46.680 that's what we're going through is brand new proceedings when 0:03:46.720 --> 0:03:49.920 we've re entered, and in those brand new proceedings, you're 0:03:49.960 --> 0:03:52.800 allowed to apply for Biden. So there had been a 0:03:52.840 --> 0:03:57.840 circuit split some circuits that said, the provision that applies 0:03:57.880 --> 0:04:00.880 to people who have already been deported is what applies, 0:04:00.920 --> 0:04:03.680 and other people said, so this is a new proceeding. 0:04:04.200 --> 0:04:07.960 So uh, the conservative justices of the Supreme Courts that 0:04:08.120 --> 0:04:13.120 six So the six to three decisions ruled that in fact, 0:04:13.320 --> 0:04:19.680 the Obama Trump Biden position was correct, and that the 0:04:19.720 --> 0:04:22.920 detensive statute that applies to people who have already been 0:04:23.080 --> 0:04:27.120 ordered deported applied to this group that re enters after 0:04:27.200 --> 0:04:31.039 they've been deported, but that they can be detained for 0:04:31.320 --> 0:04:34.839 the entirety of these proceedings, even if they take one 0:04:34.920 --> 0:04:39.000 year or two years. They can be detained without found 0:04:39.440 --> 0:04:44.480 in an immigration detention facility until these proceedings have been adjudicated. 0:04:44.800 --> 0:04:48.880 So Justice Alito, who wrote the majority opinions, said, basically, 0:04:48.920 --> 0:04:52.160 the question isn't whether they can be deported, but where 0:04:52.200 --> 0:04:55.360 they'll be deported too. Is that true? They're all going 0:04:55.400 --> 0:04:58.360 to be deported? Yes, And in fact, this is an 0:04:58.480 --> 0:05:04.760 argument that the sending opinions of the three liberal justices Briar, Soda, Mayor, 0:05:04.920 --> 0:05:07.200 and Kagan don't even address because they know it's a 0:05:07.279 --> 0:05:10.200 difficult argument, and that's why they didn't address it. When 0:05:10.240 --> 0:05:14.760 a person re enters the United States after being ordered deported, 0:05:15.160 --> 0:05:18.479 they're asking for withholding of removal from the country they're 0:05:18.480 --> 0:05:21.799 a citizen of. So let's say you're from El Savador. 0:05:21.839 --> 0:05:24.400 You're saying, please don't support me back to El Savador 0:05:24.680 --> 0:05:27.840 because I'm going to be persecuted there. That does not 0:05:28.000 --> 0:05:32.599 limit under US immigration law, the Immigration and Customs Enforcement 0:05:32.680 --> 0:05:37.000 Division from supporting that individual to Mexico or to Sweden 0:05:37.440 --> 0:05:41.200 or to Ghana. It's just a matter of whether any 0:05:41.240 --> 0:05:44.280 of those countries will actually accept this human being, which 0:05:44.320 --> 0:05:47.120 is very very rare, and the court talks about it 0:05:47.160 --> 0:05:50.719 only happens in one person of withholding of revootball cases. 0:05:50.960 --> 0:05:53.880 We then usually what happens in those cases is those 0:05:53.920 --> 0:05:56.400 are people we really want out of the United States 0:05:56.440 --> 0:05:59.800 because they're very dangerous and we don't want them walking around. 0:06:00.320 --> 0:06:03.000 And so what we do is we basically make some 0:06:03.160 --> 0:06:06.560 diplomatic heels where we say, if you want something from us, 0:06:06.640 --> 0:06:08.520 what is it that you want and if we give 0:06:08.560 --> 0:06:11.200 it to you, will you take X, y Z people? 0:06:11.839 --> 0:06:15.120 And so the United States makes these diplomatic deals and 0:06:15.160 --> 0:06:18.720 we remove certain people. And so just as Aldo's points is, 0:06:19.520 --> 0:06:23.039 we're not having a debate about whether the person is 0:06:23.040 --> 0:06:27.120 going to avoid deportation, because the person can be deported 0:06:27.200 --> 0:06:30.039 at any moment if you find a country that's not 0:06:30.160 --> 0:06:33.040 going to persecute them. So the fact that they're just 0:06:33.080 --> 0:06:37.479 trying to evade deportation to one specific country doesn't make 0:06:37.560 --> 0:06:41.680 this a brand new proceeding. It's just an ancillary proceeding 0:06:41.720 --> 0:06:45.719 happening after the fact to just avoid deportations to a 0:06:45.760 --> 0:06:51.040 specific country. But they can avoid deportation written large, and 0:06:51.160 --> 0:06:53.960 stay in the United States. And so for that reason 0:06:54.880 --> 0:06:57.080 is why he says that the statutes that apply to 0:06:57.160 --> 0:07:00.240 people who have already been ordered deported as is that 0:07:00.279 --> 0:07:03.599 those people can be detained without bonds while we're trying 0:07:03.640 --> 0:07:07.960 to execute their removal order. Is what applies here. Justice 0:07:08.000 --> 0:07:12.880 Brier wrote the dissenting opinion for the three liberal justices. 0:07:12.920 --> 0:07:17.320 What was his reasoning. His reasoning was based much more on, 0:07:17.640 --> 0:07:22.119 and rightly so, the facts of what's actually going on here, 0:07:22.880 --> 0:07:25.920 and Congress is knowledge of the facts that are going on, 0:07:26.720 --> 0:07:30.560 rather than maybe the actual text of the statutes, and 0:07:30.760 --> 0:07:35.720 saying Congress clunkily wrote this sect because at the end 0:07:35.720 --> 0:07:38.520 of the day, they would never have wanted people to 0:07:38.560 --> 0:07:42.560 be detained for two years it while these things are 0:07:42.600 --> 0:07:48.320 being decided, and they knew that withholding of removal is 0:07:48.360 --> 0:07:51.680 a type of release that is very very very rarely 0:07:52.840 --> 0:07:57.400 uh thwarted by a third country deportation, and meaning they 0:07:57.480 --> 0:08:00.880 knew that withholding of removal was based sically a new 0:08:00.960 --> 0:08:06.880 immigration proceedings where you're going and you're deciding again whether 0:08:06.920 --> 0:08:09.240 the person can be deported, because if they win, they're 0:08:09.240 --> 0:08:11.960 gonna be able to say, as a matter of practice, 0:08:12.040 --> 0:08:15.520 nobody's actually gonna send them to Sweden or France or 0:08:15.560 --> 0:08:18.520 Australia or any of that. And so because they do 0:08:18.640 --> 0:08:24.120 the practical efforts of this, you should interpret the statute 0:08:24.640 --> 0:08:27.720 in light of that practical knowledge of how the immigration 0:08:27.800 --> 0:08:31.760 system works and say that they meant that this was 0:08:31.800 --> 0:08:34.959 a new hearing and because there was a new hearing, 0:08:35.720 --> 0:08:39.520 that person can be eligible for bonds. And so I 0:08:39.559 --> 0:08:41.800 mean this makes a big difference because at the end 0:08:41.800 --> 0:08:45.560 of the day, if you're eligible for bonds, then there 0:08:45.600 --> 0:08:50.120 are a lot less disincentive for returning to the United 0:08:50.160 --> 0:08:53.520 States if you've been deported, because the idea is that 0:08:53.679 --> 0:08:56.800 you can return and make a prime of fasia claim 0:08:57.280 --> 0:09:00.200 that you're going to be persecuted in your country, you 0:09:00.240 --> 0:09:04.600 can get bond Then the idea is maybe more people 0:09:05.000 --> 0:09:08.000 will be willing to take that risk then people who 0:09:08.040 --> 0:09:10.960 don't know. If I get caught, I'm gonna be detained 0:09:10.960 --> 0:09:13.560 for one year or two years, and if I lose, 0:09:13.960 --> 0:09:15.719 what will have been the point of all of this. 0:09:16.360 --> 0:09:19.600 So the idea is the reason you've seen the Biden 0:09:19.640 --> 0:09:23.360 administration stay with the Trump administration stay with the Obama 0:09:23.400 --> 0:09:27.000 administration's positions is they don't want people who have been 0:09:27.280 --> 0:09:31.600 deported already coming back into the United States thinking there's 0:09:31.640 --> 0:09:34.520 a calculus where they will be able to get bonded 0:09:34.559 --> 0:09:37.640 into the United States and be able to return and 0:09:37.679 --> 0:09:40.679 just walk around. They wanted to say, look, if you're 0:09:40.720 --> 0:09:45.720 a legitimate refugee who is worried about death, then being 0:09:45.760 --> 0:09:49.080 in a detention facility while your claimed attending, as horrible 0:09:49.080 --> 0:09:51.720 as it is, it's still preferable to death, so you 0:09:51.760 --> 0:09:55.400 will come. But if you're not a legitimate refugee and 0:09:55.559 --> 0:09:59.719 you're not actually facing death upon removal, then it is 0:09:59.800 --> 0:10:04.360 let likely you will be willingly give up your freedom 0:10:04.559 --> 0:10:07.040 in a change for a very small chance to remain 0:10:07.480 --> 0:10:09.960 in the United States. And so that's why you've seen 0:10:10.440 --> 0:10:15.160 all three administrations takes this position. So is it basically 0:10:15.200 --> 0:10:21.120 a textualist reading by the majority and a practical interpretation 0:10:21.520 --> 0:10:25.480 by the descent. Yes, that's basically what it comes down to. 0:10:26.240 --> 0:10:30.160 If you've seen this this term where sometimes the sexual 0:10:30.200 --> 0:10:33.440 reading helps the non citizens and sometimes it hurts the 0:10:33.480 --> 0:10:37.840 non citizens. And here the textualist reading, if somebody is 0:10:37.840 --> 0:10:41.760 being honest about it, hurts the non citizens. Because there's 0:10:41.800 --> 0:10:45.160 no way you can say that there isn't a removal 0:10:45.280 --> 0:10:49.640 order that exists for someone who's re entering the country 0:10:49.720 --> 0:10:52.800 after they've been ordered removed. That removal order does exist, 0:10:53.280 --> 0:10:57.559 and it can be executed to one and nine countries, 0:10:57.559 --> 0:11:00.679 but maybe just the one that's the person doesn't want 0:11:00.720 --> 0:11:04.400 it execute it to So even if it's practically true 0:11:04.440 --> 0:11:09.640 that it won't be executed with probability as any of 0:11:09.679 --> 0:11:12.400 those other countries. So none of those other countries want 0:11:12.480 --> 0:11:15.600 this person and they won't give them a passport to enter, 0:11:16.280 --> 0:11:19.800 it is still theoretically possible. And so as a matter 0:11:19.880 --> 0:11:24.000 of sexualist interpretation, there's no way you can say that 0:11:24.080 --> 0:11:28.600 there's a new proceeding that is to decide whether someone 0:11:28.720 --> 0:11:31.920 is going to be ordered removed, which is what the 0:11:32.679 --> 0:11:36.840 liberal argument requires you to say. And so that's why 0:11:36.920 --> 0:11:41.160 I think probably as a matter of sexualist interpretation, the 0:11:41.200 --> 0:11:45.719 majority opinion is correct. So now we've discussed before the 0:11:45.840 --> 0:11:51.320 last three decisions in immigration cases were unanimous. This is 0:11:51.400 --> 0:11:55.960 six to three down ideological lines. What made the difference here? 0:11:56.000 --> 0:12:01.880 Do you think the difference is? This is a case which, 0:12:02.160 --> 0:12:07.520 if interpreted by an administration that is trying to have 0:12:07.600 --> 0:12:12.640 a draconian path on immigration, will lead to some pretty 0:12:12.640 --> 0:12:16.400 harsh outcome. Meaning you could have people in detention for 0:12:16.640 --> 0:12:18.719 quite a long time and just lock them up and 0:12:18.840 --> 0:12:22.280 throw away the key while their case of sending and 0:12:22.320 --> 0:12:26.200 in these cases take forever. Then people will just know 0:12:26.440 --> 0:12:28.520 I'm just gonna be locked up forever if I try 0:12:28.559 --> 0:12:30.880 to come into the United States. And so you have 0:12:31.000 --> 0:12:34.560 the three liberal justices saying we don't want to sign 0:12:34.559 --> 0:12:38.280 on to that. That sounds repugnant to us. But I 0:12:38.320 --> 0:12:42.080 think the solutions to that will be to allow what 0:12:42.200 --> 0:12:47.000 are called as applied challenges, which you can say, look, 0:12:47.080 --> 0:12:50.480 maybe this statute reads the way it is, but there 0:12:50.480 --> 0:12:53.000 should be no statute in the United States that allows 0:12:53.040 --> 0:12:56.400 me to stay longer than a year in immigration detention. 0:12:56.440 --> 0:12:59.559 Because this is not criminal detention. I haven't committed a crime. 0:12:59.600 --> 0:13:02.800 I'm just sitting here in immigration attenion and the government 0:13:02.880 --> 0:13:05.480 is taking too long to do my case. And so 0:13:06.000 --> 0:13:09.719 that's what this will now lead to is what are 0:13:09.760 --> 0:13:13.240 calls as applied challenges, where there's an individual whose case 0:13:13.320 --> 0:13:16.520 is taking too long, they will then file a position 0:13:16.559 --> 0:13:19.960 for rid of a bas corpus in the U. S. Disrecord, 0:13:20.200 --> 0:13:23.719 saying my case is taking too long. It's unconstitutional to 0:13:23.800 --> 0:13:28.400 hold be this long, and that will be an issue 0:13:28.520 --> 0:13:31.760 if the administration is holding people that long. I don't 0:13:31.800 --> 0:13:36.120 think the Biden administration we'll hold people that long, but 0:13:36.240 --> 0:13:39.480 if there's some new administration, you'll see those kinds of 0:13:39.559 --> 0:13:45.040 cases arising. Now. I've read that the number of imprisoned 0:13:45.040 --> 0:13:50.360 asylum seekers has jumped exponentially under the Biden administration, that 0:13:50.440 --> 0:13:54.959 it doubled from fourteen thousand early in the year to 0:13:56.000 --> 0:14:02.000 thousand in June. Why so be because what has happened 0:14:02.080 --> 0:14:06.120 is people think of the immigration border issue as an 0:14:06.120 --> 0:14:09.840 issue of just Mexico and Central America, but that's actually 0:14:09.880 --> 0:14:12.080 not true. We have a much more fluid and dynamic 0:14:12.160 --> 0:14:15.240 border than we've ever had before, and so what happens 0:14:15.320 --> 0:14:17.880 is that people think that there's an entry route into 0:14:17.920 --> 0:14:20.960 the United States through the southern border. You start to 0:14:20.960 --> 0:14:23.480 see people from all over the world show up at 0:14:23.480 --> 0:14:26.760 your southern border. You don't just see people from Mexico 0:14:26.840 --> 0:14:29.960 and Central America. And so what happens is there's more 0:14:30.000 --> 0:14:32.240 of these people who are from all over the world 0:14:32.600 --> 0:14:36.240 show up at the southern border. Mexico doesn't just let 0:14:36.280 --> 0:14:39.320 you return them to Mexico because they're not Mexican. So 0:14:39.480 --> 0:14:42.160 it doesn't work that way. You can't send someone from 0:14:42.160 --> 0:14:45.680 Cuba or Ecuador, which are two of the big big 0:14:45.920 --> 0:14:50.160 sending countries right now, but there's others. There's Venezuela, Colombia, 0:14:50.600 --> 0:14:52.520 there's a lot of place. There's people from a lot 0:14:52.560 --> 0:14:55.560 of places coming to the southern border. Mexico says, well, 0:14:55.600 --> 0:14:57.840 these people are Mexican, why do you think you can 0:14:57.920 --> 0:15:01.120 send them back here? And so they have to be 0:15:01.200 --> 0:15:05.440 detained in our facilities until we can actually process their 0:15:05.480 --> 0:15:09.760 deportation to the actual country they're a citizen of. And 0:15:09.920 --> 0:15:14.120 so that's what's leading to this massive increase and fight 0:15:14.320 --> 0:15:18.680 in detention at the immigration and customer facilities. I found 0:15:18.720 --> 0:15:24.720 this interesting. There's disagreement about the term used for illegal immigrants, 0:15:24.760 --> 0:15:26.760 just as a leader in the majority and Justice Thomas 0:15:26.800 --> 0:15:30.000 in a concurrence use the term alien, but just as 0:15:30.040 --> 0:15:32.840 prior in the descent used the term non citizen, and 0:15:32.880 --> 0:15:36.600 apparently the Solicitor General is using the term non citizen 0:15:36.840 --> 0:15:40.280 recently as well. Is it just a question of sort 0:15:40.280 --> 0:15:44.080 of being politically correct or is there a difference. There's 0:15:44.120 --> 0:15:47.880 a huge problem because the Immigration Code, so the actual 0:15:47.960 --> 0:15:50.880 text of the statute uses the word alien, so it 0:15:50.920 --> 0:15:53.280 doesn't use any other word, and it says an alien 0:15:53.320 --> 0:15:55.800 as a person who is neither a citizen or a 0:15:55.880 --> 0:15:58.960 national of the United States. And so what's weird is 0:15:59.000 --> 0:16:01.960 we have these two categories of people in the United States. 0:16:01.960 --> 0:16:05.080 We have citizens that we have naginals, and for most 0:16:05.080 --> 0:16:08.800 people that we think of with US passports are citizens. 0:16:08.800 --> 0:16:11.960 But there are some people who are US nationals. But 0:16:12.040 --> 0:16:15.600 those are people like from American Samoa and from the 0:16:15.680 --> 0:16:18.760 Swayne Island and stuff like that, who are not actually 0:16:18.880 --> 0:16:21.720 US citizens, but they all an allegiance to the United 0:16:21.760 --> 0:16:25.320 States or US nationals. That's called And so the reason 0:16:25.400 --> 0:16:29.640 that's complicated is when the politically correct term non citizen 0:16:29.800 --> 0:16:32.520 is applied, you could be a US national and not 0:16:32.600 --> 0:16:36.080 actually be a citizens, So the pert non citizen is 0:16:36.120 --> 0:16:40.600 actually imprecise. Thanks Leon. That's Leon Fresco of Hollandon Knight. 0:16:42.760 --> 0:16:46.640 The Supreme Court rule that California was violating the Constitution 0:16:46.960 --> 0:16:51.240 with the decades old regulation that gives union organizers access 0:16:51.280 --> 0:16:54.440 to agricultural company land for part of the year to 0:16:54.520 --> 0:16:58.840 talk to workers in nine provision that grew out of 0:16:58.840 --> 0:17:02.240 the efforts of Caesar Chavez to give farm workers collective 0:17:02.240 --> 0:17:06.240 bargaining rights. The six to three vote down audiological lines 0:17:06.359 --> 0:17:09.560 is the latest blow to unions. In the majority opinion, 0:17:09.680 --> 0:17:15.000 Chief Justice John Roberts concluded the California regulation unconstitutionally interfered 0:17:15.119 --> 0:17:17.879 with the growers property rights and a provision in the 0:17:17.920 --> 0:17:23.240 Constitution that prohibits governments from taking private property without just compensation. 0:17:23.920 --> 0:17:26.760 Joining me is Bethanie Burger, a professor at the University 0:17:26.760 --> 0:17:30.359 of Connecticut School of Law. How much of a blow 0:17:30.480 --> 0:17:35.000 is this decision for unions? So this is a blow 0:17:35.480 --> 0:17:40.199 for California migrant farm workers. As far as I know, 0:17:41.400 --> 0:17:45.639 no other state has a statute or regulation like this 0:17:45.880 --> 0:17:52.240 protecting migrant farm workers. For unions, this shows that the 0:17:52.280 --> 0:17:55.159 majority on the Supreme Court just doesn't like unions. But 0:17:56.000 --> 0:18:00.680 unions that are not farm worker unions are protected by 0:18:01.119 --> 0:18:06.760 the National Labor Relations Act, which gives access to employer 0:18:06.840 --> 0:18:13.240 property when there is no effective way to reach employees 0:18:13.600 --> 0:18:18.320 off the property. So it's effect on unions generally might 0:18:18.359 --> 0:18:24.000 be relatively confined. So explain the majority's reasoning here. So 0:18:24.560 --> 0:18:28.440 the majority said, Well, the first part of the opinion 0:18:28.920 --> 0:18:37.199 says that whenever the government authorizes and involuntary entry into property, 0:18:37.680 --> 0:18:40.560 that is a taking, and the only question is what 0:18:40.640 --> 0:18:45.040 compensation is doing. But that new per se rule is, 0:18:45.520 --> 0:18:48.320 as the Court said in another case, only a per 0:18:48.359 --> 0:18:51.320 se rule for a few pages in the u S Reports, 0:18:51.320 --> 0:18:56.320 because the Court immediately includes a lot of exceptions to 0:18:56.600 --> 0:19:00.639 that pier se rule of invasions that will not be taking. 0:19:01.000 --> 0:19:08.000 So what this leaves for lower courts, for regulators, for 0:19:08.480 --> 0:19:13.520 just individuals is a tough process of trying to figure 0:19:13.560 --> 0:19:18.520 out when those exceptions apply or not. Did Chief Justice 0:19:18.600 --> 0:19:22.640 John Roberts year from precedent. I've been reading that he's 0:19:22.760 --> 0:19:29.040 rewriting the takings clause. That's correct. Yeah, So the majority 0:19:29.080 --> 0:19:32.840 claims to rely on precedent, But what in fact it 0:19:32.920 --> 0:19:38.680 does is it takes isolated phrases out of context. And 0:19:38.880 --> 0:19:42.399 twist them into something that they never said, and in 0:19:42.480 --> 0:19:46.119 fact twists them sometimes into the opposite of what the 0:19:46.160 --> 0:19:51.240 decision said. So, for example, the court says that a 0:19:51.400 --> 0:19:56.800 government authorization of a right to enter is a per 0:19:56.840 --> 0:20:01.920 se taking, and it distinguishes is the prune Yard decision 0:20:02.160 --> 0:20:06.720 from about right to speak at malls by saying that 0:20:06.880 --> 0:20:09.960 was only because the property was open to the public. 0:20:10.440 --> 0:20:14.480 But prune Yard said, this is a taking of the 0:20:14.560 --> 0:20:18.520 right to exclude, but not all takings of rights to 0:20:18.600 --> 0:20:24.199 exclude our takings under the Constitution. So that's the opposite 0:20:24.240 --> 0:20:28.240 of what the court held in Theater points. Similarly, there 0:20:28.280 --> 0:20:34.159 are a number of cases that holds that physical invasions 0:20:34.240 --> 0:20:39.240 are taking from the Supreme Court, but they only do 0:20:39.440 --> 0:20:45.320 so after they find that the invasions significantly undermined the 0:20:45.400 --> 0:20:52.200 owner's economic interest. And indeed, those cases sometimes said not 0:20:52.400 --> 0:20:56.200 every invasion is going to be a taking, And in 0:20:56.240 --> 0:21:00.399 this case, Theater point made no out of station that 0:21:00.440 --> 0:21:03.600 there was any invasion of its economic interests, So it's 0:21:03.600 --> 0:21:07.439 inconsistent with those decisions as well. Just explain what the 0:21:07.480 --> 0:21:13.200 takings clause is. The takings clause says that the government 0:21:13.480 --> 0:21:19.800 cannot authorize a taking of private property for public use 0:21:20.080 --> 0:21:25.600 without just compensation. So if the government takes property in 0:21:26.080 --> 0:21:29.040 the constitutional sense, it has to pay for it. But 0:21:29.520 --> 0:21:32.640 there are some cases where that's easy to apply, taking 0:21:32.640 --> 0:21:37.400 somebody's house, saying that somebody's land is going to be 0:21:37.880 --> 0:21:41.760 taken for a road. Those are easy cases. The hard 0:21:41.800 --> 0:21:48.280 cases are when the government doesn't permanently physically take anything. 0:21:48.960 --> 0:21:54.200 And in those cases the court has applied kind of 0:21:54.320 --> 0:21:57.600 balancing test, say why are they doing it? Is there 0:21:57.680 --> 0:22:00.359 much of an impact on the owner's interests, and in 0:22:00.359 --> 0:22:03.720 a lot of cases says there isn't a taking. That's 0:22:03.760 --> 0:22:06.840 what the Supreme Court changed in theater point, what does 0:22:06.880 --> 0:22:09.960 it tell you that this is a six to three decision. 0:22:10.280 --> 0:22:14.840 So what this means to me is that the conservative 0:22:14.880 --> 0:22:20.480 majority on the Supreme Court is willing to expand private 0:22:20.520 --> 0:22:25.320 property rights even when it violates precedents. And that may 0:22:25.359 --> 0:22:29.520 be very significant for the taking clues or almost a century, 0:22:29.840 --> 0:22:36.240 taking decisions have generally been split decisions, been five four decisions, 0:22:36.240 --> 0:22:39.000 with one justice or the other going back and forth. 0:22:39.119 --> 0:22:43.400 If this continues, that's no longer the case. Talking about 0:22:43.400 --> 0:22:46.919 the union aspect of this, there have been several decisions 0:22:46.960 --> 0:22:52.120 from this court eroding union power, including one that overturned 0:22:52.119 --> 0:22:55.359 a forty year old precedent, the Janice case. They've all 0:22:55.400 --> 0:22:58.400 been five to four as well, or now six to three. 0:22:58.760 --> 0:23:00.760 I don't even know if the union has Unions have 0:23:00.880 --> 0:23:05.600 won any cases at the Supreme Court in recent memory. 0:23:05.800 --> 0:23:10.399 I think people watching the Supreme Court recognize that this 0:23:10.560 --> 0:23:14.080 is the Supreme Court that is not friendly to unions. 0:23:14.320 --> 0:23:20.359 The Janic's case is the biggest example. But this adds 0:23:20.359 --> 0:23:24.400 to that list. And now explain what the liberals said 0:23:24.440 --> 0:23:28.920 in dissent. So one of the points of the liberals 0:23:28.960 --> 0:23:32.359 I think is kind of wrong. One of them was 0:23:32.440 --> 0:23:37.760 to say this is just the regulation, not a physical invasion, 0:23:38.200 --> 0:23:42.439 and that is based on a past decision. But the 0:23:42.480 --> 0:23:47.000 distinction really doesn't make sense. The other points are more accurate. First, 0:23:47.480 --> 0:23:52.200 this case is inconsistent with past presidents. The Supreme Court 0:23:52.400 --> 0:23:59.040 has never said that a temporary invasion that doesn't cause 0:23:59.240 --> 0:24:03.359 any eco nom the corm is a taking certainly not 0:24:03.480 --> 0:24:06.439 a person taking. In fact, it said the opposite. The 0:24:06.680 --> 0:24:14.080 second point is that these exceptions create a lot of uncertainty, 0:24:14.680 --> 0:24:20.119 and they may, if interpreted in a certain way, in fact, 0:24:20.200 --> 0:24:25.040 threatened lots of health and safety regulations. The third point 0:24:25.640 --> 0:24:30.280 is that it's not clear what this decision actually does, 0:24:30.600 --> 0:24:35.200 even for the regulation issue. So the taking classes. If 0:24:35.240 --> 0:24:38.280 you take property, you have to pay, but what do 0:24:38.280 --> 0:24:40.480 you have to pay. You have to pay the fair 0:24:40.560 --> 0:24:44.840 market value of what's been taken. And here, from everything 0:24:44.840 --> 0:24:48.359 that was presented below, the fair market value appears to 0:24:48.440 --> 0:24:53.600 be zero. There wasn't any evidence that this economically harmed 0:24:53.920 --> 0:24:58.560 the growers. So the Supreme Court tells something like this 0:24:58.880 --> 0:25:03.080 with respect to interest on account, where the interest would 0:25:03.080 --> 0:25:07.280 be so small that it wouldn't even make economic sense 0:25:07.320 --> 0:25:10.959 to collect it. And in that case it had to 0:25:11.040 --> 0:25:13.919 go back in another decision and say, well, you know what, 0:25:14.119 --> 0:25:17.560 since the fair market value of this is effectively zero, 0:25:17.720 --> 0:25:20.800 you don't even have to bother to go through the 0:25:20.840 --> 0:25:24.200 takings analysis here, just say yeah, it's a taking, but 0:25:24.359 --> 0:25:26.600 you don't have to pay for it. And so something 0:25:26.720 --> 0:25:30.359 like that might happen here. What Justice Brier said was 0:25:30.880 --> 0:25:34.240 if the government wants to do something like this, they 0:25:34.280 --> 0:25:37.639 could do the economic analysis and say we're going to 0:25:37.720 --> 0:25:41.879 give you one dollar in nominal damages for this invasion. 0:25:42.359 --> 0:25:45.399 You come back and show us that the fair market 0:25:45.440 --> 0:25:48.960 value of it was more. So that's another possibility. During 0:25:49.000 --> 0:25:52.959 the oral arguments, Justice Barrett said, it could be as 0:25:53.000 --> 0:25:55.960 little as fifty dollars. I don't know where she got 0:25:55.960 --> 0:25:59.280 that figure from. So do you think that the next 0:25:59.320 --> 0:26:04.359 step is then determining compensation. So the case goes back 0:26:04.400 --> 0:26:08.720 down to determine what compensation would be. What is the 0:26:08.720 --> 0:26:13.000 fair market value here? And it might be one dollar 0:26:13.480 --> 0:26:17.920 nominal damages. That's something that happened in the Supreme Court 0:26:18.080 --> 0:26:22.680 first per se physical invasion case in n where they said, 0:26:22.720 --> 0:26:26.000 even saying that somebody can put a cable box on 0:26:26.040 --> 0:26:29.680 your roof that you don't see, that doesn't undermine the 0:26:29.760 --> 0:26:32.000 value of your property, that is a per se taking. 0:26:32.520 --> 0:26:34.760 And it went back down to the state of New York, 0:26:34.800 --> 0:26:37.040 and New York said, okay, it's a taking. You get 0:26:37.040 --> 0:26:40.119 one dollar because it doesn't undermine the value of your property. 0:26:40.160 --> 0:26:43.560 So that could happen here. So then if you look 0:26:43.560 --> 0:26:46.399