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Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: The Supreme Court's docket this year has an unusually large

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Speaker 1: number of immigration cases that run the gamut from boilerplate

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Speaker 1: to blockbuster. One of the cases in the blockbuster category

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Speaker 1: involves a politically charged issue that could bolster the government's

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Speaker 1: ability to deport undocumented immigrants quickly after their asylum bids

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Speaker 1: are rejected. My guest is constitutional law experts Stephen Vladdock,

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Speaker 1: a professor at the University of Texas Law School. So

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Speaker 1: Steve tell us about the main issues in the case.

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Speaker 1: June in a term full of of big immigration cases,

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Speaker 1: I actually think this is the sleeper. So there's a

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Speaker 1: whole category of non citizens who are placed in something

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Speaker 1: called expedited removal. And the idea is when the government

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Speaker 1: picks up someone right after they surreptitiously enter the country

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Speaker 1: and when they haven't been here for that long, the

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Speaker 1: law ought to treat them as if they were stopped

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Speaker 1: at the border. That you know, we shouldn't necessarily reward

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Speaker 1: folks who cross illegal just for the fact that they

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Speaker 1: weren't captured right on site. In this context, as the

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Speaker 1: term suggests, f tite removal means a much more streamlined

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Speaker 1: process before they are removed from the country, and it

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Speaker 1: also dramatically circumscribes the kinds of claims that folks in

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Speaker 1: this status are allowed to make. So with regard to

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Speaker 1: asylum seekers, for example, there's nowhere near the amount of

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Speaker 1: review of a claim that you know, someone who fled

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Speaker 1: persecution in another country actually credibly did so, or that

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Speaker 1: if they were returned to their home country they face

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Speaker 1: a meaningful risk of violence for you know. A long time,

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Speaker 1: the Supreme Court has operated to the presumption that individuals

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Speaker 1: who are physically present on US soil, whatever their immigration status,

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Speaker 1: are protected by the Constitution. But this case is actually

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Speaker 1: raising whether that's still true and whether the Court still

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Speaker 1: believes that in the context of perhaps the most important

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Speaker 1: constitutional protection, the right of habeas corpus. Basically, the long

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Speaker 1: term of this case is Congress in nine took away

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Speaker 1: from the federal courts the power to hear habeas petitions,

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Speaker 1: basically collateral attacks on the underlying government detention from non

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Speaker 1: sitisen immigrants who are in so called expedited removal proceedings.

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Speaker 1: And the argument in these cases is that by not

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Speaker 1: allowing for habeas. There's no meaningful opportunity for someone with

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Speaker 1: a valid asylum claim whose claim is denied in this

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Speaker 1: expedited context to then challenge that denial in court. When

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Speaker 1: the Third Circuit heard this issue four years ago, it said,

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Speaker 1: note the suspension clause of the Constitution, which protects the

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Speaker 1: right of habeas corpus, does not apply to undocumented immigrants

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Speaker 1: who are in excited removal. And late last year the

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Speaker 1: Ninth Circuit, the Federal Pell's Court in San Francisco, disagreed,

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Speaker 1: creating a circuit split. Tell us a little bit about

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Speaker 1: the plaintiff who says he fears persecution in his country.

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Speaker 1: The Rostertam is a Sri Lankan and he's a Tamil,

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Speaker 1: which basically means that he is in a minority group

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Speaker 1: that has been the subject of significant person acution from

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Speaker 1: the Sri Lankan government. Of course, there's been some violence

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Speaker 1: on the part of this group as well. He entered

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Speaker 1: the United States surreptitiously in California. He was picked up

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Speaker 1: shortly after he entered, and he basically is trying to

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Speaker 1: challenge the government's denial of his asylum claim on the

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Speaker 1: ground that he incredibly fears persecution or other forms of

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Speaker 1: inappropriate treatment if he is returned to Sri Lanka. The

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Speaker 1: District Court concluded that it lacked the ability to hear

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Speaker 1: his habeas petition because of the statute Congress past, and

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Speaker 1: the Ninth Circuit reversed, disagreeing with the Third Circan in

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Speaker 1: holding that the suspension clause applies to anyone on US soil,

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Speaker 1: that whether or not your attention is lawful, which is

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Speaker 1: what the courts will ultimately decide. Congress can't cut the

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Speaker 1: courts out of the loop entirely when it comes to

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Speaker 1: reviewing these kinds of immigration cases. And June. One of

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Speaker 1: the points the Ninth Circuit Majors, I think is a

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Speaker 1: pretty good one is the most important Supreme Court case

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Speaker 1: interpreting the suspension clause and discussing the right of habeas

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Speaker 1: corpus is the boom Median case from two thousand and eight,

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Speaker 1: where the Supreme Court and the context of the non

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Speaker 1: citizen enemy combatants detain the guantanamo held that even they

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Speaker 1: are protected by the suspension clause and are entitled to

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Speaker 1: judicial review of their detention. And then I took it

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Speaker 1: basically said, listen, if that's true, for non citizen enemy

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Speaker 1: combatants at Guantanamo who have never had any connection to

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Speaker 1: the United States. It should be true for undocumented immigrants who,

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Speaker 1: whatever their legal status, are physically present on US soil

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Speaker 1: at the time of their apprehension. So since is the

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Speaker 1: Ninth Circuit the only court to say that that provision

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Speaker 1: of the law is unconstitutional? June the Ninth Circuits the

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Speaker 1: only court to hold that that provisions unconstitutional has applied

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Speaker 1: in this context. But I mean, the reality is there

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Speaker 1: are dozens and dozens of cases in which the district

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Speaker 1: chords have reached the merits in this context. It's only

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Speaker 1: really I think in response to the Third Circuit decision

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Speaker 1: from twenty sixteen, that there's been this renewed focus on

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Speaker 1: the constitutional question. So I don't think that there's a

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Speaker 1: clear weight of authority on this question that necessarily tips

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Speaker 1: in the government's favor. I think what it really is

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Speaker 1: is this case is a referendum on the Guantanamo decision,

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Speaker 1: the bu Media decision from two thousand eight that was

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Speaker 1: five to four. You know, Justice Kavanaugh, who replaced Justice Kennedy.

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Speaker 1: Kennedy had was the swing vote in that decision. Kennedy

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Speaker 1: wrote the majority opinion. I think Justice Kavanaugh is arguably

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Speaker 1: not as sympathetic toward habeas in this context of Justice

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Speaker 1: Kennedy was. So it's another one of these cases where

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Speaker 1: the Kennedy to Kavanaugh shift could have real consequences for

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Speaker 1: the doctrine, and where, in contrast to Guantanamo, where we're

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Speaker 1: only talking about forty detainees who are still there, now,

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Speaker 1: we're talking about tens of thousands of individuals in the

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Speaker 1: United States who would be covered by this ruling. I've

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Speaker 1: been talking to Professor Stephen Vladdock of the University of

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Speaker 1: Texas Law School about a high stakes immigration case at

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Speaker 1: the Supreme Court involving expedited removal. So Steve, explain why

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Speaker 1: that two thousand eight Guantanamo case still seems to be

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Speaker 1: getting so much attention and criticism. The Supreme Court decision

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Speaker 1: in the Median case with regard toble on time with

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Speaker 1: detainees really has been something of the lightning rod. You know,

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Speaker 1: Attorney General Bill Barr in his I think widely noticed

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Speaker 1: speech to the Federal Society back in November, went out

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Speaker 1: of his way to go after that decision, even though

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Speaker 1: it's hard to see how those cases are really at

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Speaker 1: the center of the government's agenda these days, as an

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Speaker 1: example of what he called judicial activism, as an example

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Speaker 1: of you know, progressive justices running amuck, and bars argument

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Speaker 1: was that it was wrong for the courts to insert

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Speaker 1: themselves into the middle of military operations by basically saying, yes,

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Speaker 1: there's a role for the federal courts in reviewing the

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Speaker 1: detention of enemy combatants. But you know, June, whatever folks

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Speaker 1: think about that debate, what's so fascinated to me about

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Speaker 1: the case the Supreme Court set to here at the

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Speaker 1: end of February, the tha GM case, is that you know,

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Speaker 1: these are not enemy combatants. These are not individuals who

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Speaker 1: have any kind of criminal record or any special collection

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Speaker 1: in terry or some you know, these are folks who,

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Speaker 1: at least if their allegations are true, are simply looking

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Speaker 1: for a better life in our fleeing persecution in other countries.

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Speaker 1: And so long as we have a law on the

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Speaker 1: books that says, you know, you're entitled to asylument, certain

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Speaker 1: things are true. The question is who's going to be

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Speaker 1: the ultimate arbiter of these individuals asylum claims, the individual

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Speaker 1: immigration hearing officer for whom all the incentives are increasingly

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Speaker 1: pointed towards denying claims or an independent Article three court,

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Speaker 1: And that's really the stakes of this case and June,

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Speaker 1: just to sort of add one more piece of context

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Speaker 1: to it, All of this is happening while the Trump

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Speaker 1: administration is actually trying to expand the category of non

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Speaker 1: citizens who can be subjected to expedited removal, where the

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Speaker 1: consequences of this case could become even bigger. What is

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Speaker 1: the federal government's argument to the Supreme Court justices to

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Speaker 1: get them to overturn the Ninth Circuits decision. So the

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Speaker 1: government actually makes a series of arguments, and I think

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Speaker 1: the principal argument the government makes is that immigration cases

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Speaker 1: were never meant to be within the ambit of the

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Speaker 1: suspension clause. That in contrast to executive detention like the

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Speaker 1: Guantanamo cases. You know, in this context, individuals like thrasy Gum,

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Speaker 1: they're not really objecting to their detention. They're trying to

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Speaker 1: use habeas as a way of objecting to their removal,

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Speaker 1: where you know, they won't necessarily be detained in their

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Speaker 1: home countries, they just won't be able to stay in

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Speaker 1: the United States. So a big part of the government's

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Speaker 1: argument is that in general, the suspension clause just doesn't

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Speaker 1: apply when non citizens are trying to collaterally attack removal proceedings.

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Speaker 1: But the government also says that in any event, the

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Speaker 1: suspension clause is satisfied, at least in this context, by

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Speaker 1: the limited but not zero review that these kinds of

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Speaker 1: non citizens receive of their claims, as I said, through

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Speaker 1: this immigration hearing officer, through this asylum officer. But I think,

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Speaker 1: you know, a lot's gonna rise and fall in the

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Speaker 1: first part of that argument on whether there's a majority

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Speaker 1: of the justices who agree that removal of non citizens

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Speaker 1: deportation proceedings were not what Habeas was meant to protect

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Speaker 1: at the founding, and it's not what Habeas is meant

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Speaker 1: to protect today. So the justices don't have to overrule precedents,

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Speaker 1: they don't have to overrule Median, they don't have to

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Speaker 1: overrule Median, although I do think, you know, b Median

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Speaker 1: really does lurk over these cases, you know, duns. I

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Speaker 1: think the respondents argued at the certain stage and in

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Speaker 1: the Ninth Circuit, there are a lot of older Supreme

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Speaker 1: Court cases that are ruling the government saver here wouldn't

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Speaker 1: require overruling, but would create some tension where the Supreme

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Speaker 1: Court historically has basically sort of assumed that habeas applied

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Speaker 1: in this context, and the Court has repeatedly suggested that

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Speaker 1: undocumented immigrants, you know, because they're physically on US soil,

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Speaker 1: are protected by at least some of the Constitution. So

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Speaker 1: I think there is a way for the justices to

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Speaker 1: rule for the government without overruling any of their precedents.

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Speaker 1: I do think they would have to give at least

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Speaker 1: some of those precedents a haircut. And you know, I

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Speaker 1: think that's part of what the rout of GM's lawyers

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Speaker 1: are likely to argue in their you know, merits brief,

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Speaker 1: which I think is going to be filed shortly um

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Speaker 1: and at the or argument next month. Do we know

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Speaker 1: what this court's record in immigration is or is it

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Speaker 1: too soon to tell? Well, I mean, I think, you know, June,

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Speaker 1: this case does cont as part of a much larger

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Speaker 1: uptick in the courts immigration docta. I mean, this is

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Speaker 1: the same term the Court is hearing the DOCCA case,

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Speaker 1: which is one of the most important immigration cases that's

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Speaker 1: heard in a long time. You know, we're just coming

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Speaker 1: off of the travel band case. The Court has had

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Speaker 1: applications for emergency relief from the government in two different

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Speaker 1: asylum cases. There's the border wall. So you know, immigration

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Speaker 1: I think is definitely a dominant theme um of this

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Speaker 1: term and of the last couple of terms in the

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Speaker 1: Roberts Court. I guess my hesitation is just that I

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Speaker 1: think this is a different kind of immigration case because

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Speaker 1: unlike all of those other cases, where the fight is

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Speaker 1: over the substance of immigration policy um and whether, for example,

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Speaker 1: the President is acting consistently or inconsistently with the statutes

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Speaker 1: Congress has passed and with the other potentially applicable constitutional provisions,

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Speaker 1: this is a case that's really about the role of

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Speaker 1: the courts in immigration cases in general, in a way

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Speaker 1: that the other cases are not. And so, you know,

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Speaker 1: especially with the Trump administration proposing to expand the number

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Speaker 1: of immigrants who would fall into this expedited removal category,

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Speaker 1: you know, I think this is really a case that's

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Speaker 1: much more front and center about judicial review, where immigration

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Speaker 1: is simply the foil um, whereas I think the other

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Speaker 1: cases are more about the substance of our immigration policies.

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Speaker 1: And that's why I think it's really a sleeper case

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Speaker 1: for the Supreme Court's current term. I mean, obviously folks

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Speaker 1: are fixated on, you know, the abortion case, the Second

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Speaker 1: Amendment case, the you know, Trump tax subpoena cases. But

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Speaker 1: you know, there aren't that many cases the Supreme Court.

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Speaker 1: Here's where it's asked a fundamental question about whether the

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Speaker 1: Constitution requires some role for the courts at all. Um.

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Speaker 1: And so that's why I think, you know, how the

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Speaker 1: court handles this case could have broader, longer term ramifications

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Speaker 1: than any rule that hands down on any of these

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Speaker 1: substantive immigration cases. So after Bumti in many many Guantanamo

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Speaker 1: detainees brought habeas corpus petitions, but some people thought, O

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Speaker 1: the floodgates were open. Is that likely to be an

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Speaker 1: argument here from the federal government that this would open

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Speaker 1: the floodgates to more litigation? So I think, you know,

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Speaker 1: the federal government and it's brief at leastince opening brief.

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Speaker 1: Um doesn't sort of talk so much about those floodgates June,

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Speaker 1: but it does suggest that, you know, a requirement of

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Speaker 1: the kind of judicial review for which the respondent is

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Speaker 1: arguing UM would basically sort of take the expedited out

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Speaker 1: of expediting removal that you know, Congress and the President

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Speaker 1: should be allowed to streamline these proceedings without tradicial interference

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Speaker 1: that requiring courts to actually review at least some of

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Speaker 1: these cases. UM, would you know, do exactly what the

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Speaker 1: statute was meant to prevent, which is, you know, slow

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Speaker 1: down the process in these cases, give these individuals a

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Speaker 1: longer period of time in the United States before they

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Speaker 1: might ultimately be removed. UM. I guess you know, I'm

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Speaker 1: not sure that that's going to be necessarily the the clincher,

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Speaker 1: even if the government wins that I think, you know,

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Speaker 1: from the court's perspective, Um, the resource problem is not

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Speaker 1: really that big of a concern in contrast to the

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Speaker 1: I think the broader concern about whether this decision, if

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Speaker 1: they rule for the government, that's a broader precedent with

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Speaker 1: regard to the rights of undocumented immigrants more generally. UM.

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Speaker 1: And I think you know, it's not hard to see June,

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Speaker 1: how a broader constitutional debate over what kinds of constitutional

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Speaker 1: protections undocumented immigrants might have UM is not only you

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Speaker 1: know in the often, but it's one that's going to

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Speaker 1: be very fraught given the current political climate. While we're

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Speaker 1: on this case, let's revisit for a moment the Guantanamo cases.

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Speaker 1: They're not very many prisoners there, and it's hard to

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Speaker 1: believe that those cases are still going on. Yeah, I mean, June,

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Speaker 1: this this all comes, you know, shortly after what was

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Speaker 1: the eighteenth dan aniversary on January UM eleventh of the

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Speaker 1: opening of Guantanamo UM. And you know, I mean it's

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Speaker 1: it's in one sense, I think it's it's revealing that

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Speaker 1: Guantanamo is no longer part of almost any news story

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Speaker 1: because you know, those cases, those issues really have largely

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Speaker 1: faded from public view. But it's not because anything that's ended.

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Speaker 1: I mean, there are still forty detainees to Quantanamo. There

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Speaker 1: are still you know, ongoing Military Commission pre trial proceedings

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Speaker 1: UM in three major cases, including the nine eleven trial,

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Speaker 1: including you know, the trial of the alleged um USS

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Speaker 1: coal bombing mastermind. And you know, I think one of

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Speaker 1: the things that's interesting about this immigration case is it,

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Speaker 1: you know, it provides an excuse to sort of reflect

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Speaker 1: on the implications of what the Supreme Court held in

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Speaker 1: two thousand and eight, UM, you know, Justice Scalia had

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Speaker 1: written I think quite provocatively in his descent in the

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Speaker 1: media in two thousand and eight that more Americans will

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Speaker 1: be killed as a result of that decision. I'm not

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Speaker 1: sure that's come to fruition. I mean, I think the

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Speaker 1: the ultimate consequences of the Median um we're pretty mixed. Um.

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Speaker 1: So you know, there were in the years after Bumedian.

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Speaker 1: I think June sixty one Guantanamo detainees whose habeas petitions

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Speaker 1: were litigated all the way to a final judgment. Um.

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Speaker 1: Of those, sixty one, thirty prevailed um and twenty nine lost.

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Speaker 1: Uh starry in thirty one lost. It would help if

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Speaker 1: I could do math um right, which is, you know,

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Speaker 1: I mean the definition of a pretty of a pretty

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Speaker 1: mixed verdict. And of the ones who prevailed, you know,

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Speaker 1: the Obama administration found ways to transfer them either to

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Speaker 1: their home countries or the third countries that would take them. So,

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Speaker 1: you know, I'm not sure we've seen the dire consequences

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Speaker 1: that dissenters weren't about. On the flip side, you know,

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Speaker 1: one could also look at the fact that there are

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Speaker 1: still forty detainees at Guantanamo, that only thirty of the

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Speaker 1: sixty one prevailed and say you know, all of that,

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Speaker 1: so that there could be thirty habeas victories. Um, that

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Speaker 1: seems like a lot of work for a very sort

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Speaker 1: of modest outcome. So I think the you know, the

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Speaker 1: where I sort of end up is, I think the

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Speaker 1: Verton guantanamo is very much still a mixed one. But

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Speaker 1: the more important point for present purposes is it hasn't

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Speaker 1: gone away. And so, you know, as the Supreme Court

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Speaker 1: sits to hear argument in this major but different case

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Speaker 1: about habeas and the role of courts in reviewing exactly

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Speaker 1: the branch conduct, you know, I do think it's important

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Speaker 1: not to lose sight of the ongoing implications of the

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Speaker 1: last time the Court did that. Thanks so much, Steve.

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Speaker 1: That's Stephen Vladick, professor at the University of Texas School

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Speaker 1: of Law. And that's it for this edition of Bloomberg Law.

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Speaker 1: Remember you can listen to all the latest legal topics

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Speaker 1: in the news anytime on our Bloomberg Law podcast. You

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Speaker 1: can find them on iTunes, SoundCloud, or at Bloomberg dot

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Speaker 1: com slash podcast Slash Law. I'm June Grosso. Thanks so

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Speaker 1: much for listening, and remember to tuning to the Bloomberg

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