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Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio

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Speaker 1: full to President Bucelli and to al Salvador for accepting

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Speaker 1: these heinous monsters where they will face justice. An escalating

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Speaker 1: legal fight over the Trump administration's decision to deport hundreds

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Speaker 1: of alleged Venezuelan gang members to L Salvador. On Saturday,

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Speaker 1: a federal judge issued an order temporarily barring the deportations

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Speaker 1: under an eighteenth century wartime law invoked by President Donald Trump.

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Speaker 1: The White House says the administration did not refuse to

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Speaker 1: comply with a court order. Join me. His immigration law

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Speaker 1: expert Leon Fresco, a partner at Hollanda Knight, tell us

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Speaker 1: about this eighteenth century wartime law, it's only been used

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Speaker 1: three times before the War of eighteen twelve, World War One,

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Speaker 1: and World War Two.

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Speaker 2: Well, as you said, the Alien Enemies Bag from seventeen

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Speaker 2: eighty nine from the John Adams administration was there to

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Speaker 2: prevent a situation where essentially either we would get invaded

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Speaker 2: and we couldn't take people outside of the United States,

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Speaker 2: or we would basically be invaded surrepficiously by people who

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Speaker 2: would then sort of pick up arms later at some

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Speaker 2: future point and destabilize the United States. And as you said,

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Speaker 2: it was invoked three times in the history of the

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Speaker 2: United States. And so the question in President Trump's mind

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Speaker 2: is can this be invoked now to stop what he

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Speaker 2: deems to be an invasion in the same sense, which

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Speaker 2: would be that if people from Venezuela are coming at

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Speaker 2: large numbers who then come into the United States and

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Speaker 2: destabilize certain communities. He feels like that's no different than

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Speaker 2: if it had been a coordinated invasion. But said, he

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Speaker 2: can designate this group trend Ragua, which is a sort

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Speaker 2: of destabilizing gang, and say that they came in with

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Speaker 2: the passive acquiescence of the Venezuelan government, such that they're

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Speaker 2: a hostile group actor who can be deported without a hearing.

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Speaker 2: And so that's what's at stake here, is is that

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Speaker 2: something that's possible to do? But quite frankly, even more important,

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Speaker 2: the real threshold question is will the court say that

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Speaker 2: a determination under the Alien Enemies Act is what's called

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Speaker 2: a political question, meaning even if the judges disagree, they

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Speaker 2: won't get into it because they just won't review it.

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Speaker 2: They'll just say, look, that's for the president to make

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Speaker 2: the president swears it out to the Constitution. And if

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Speaker 2: the president thinks that somebody is a dangerous organization, we

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Speaker 2: don't have time to review this in the courts. They

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Speaker 2: just need to make this invocation and get the people out.

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Speaker 2: And so that's what's going to be. To me, the

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Speaker 2: most interesting threshold question is does this even get a

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Speaker 2: review in the first place. Then you have the second

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Speaker 2: and third order questions. It just gets a review. What

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Speaker 2: is the review? Is the review? Did you make the

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Speaker 2: right call? Is this a destabilizing group? And then the

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Speaker 2: third order question is, well, is this particular human being

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Speaker 2: that you're about to deport one of the people who's

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Speaker 2: a member of the group, and in what way can

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Speaker 2: someone challenge such a determination? So all of those questions

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Speaker 2: are up progress here.

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Speaker 1: So it just has to be a destabilizing group or

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Speaker 1: does it have to actually be that they're perpetrating an invasion?

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Speaker 2: Well, you have to declare that there's an invasion, there's

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Speaker 2: no doubt about it. But it doesn't have to be

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Speaker 2: an official invasion in the way people think about it,

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Speaker 2: where people come in uniform and they actually all have

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Speaker 2: guns and helmets and they cross the border. That part

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Speaker 2: is not necessary here. What is necessary is that you

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Speaker 2: find that people basically are entering the United States again

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Speaker 2: in an invasion, so to speak. I'll read the text

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Speaker 2: whenever there's a declared war between the United States and

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Speaker 2: any foreign nation or government, here's the key. Or any

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Speaker 2: invasion or predatory incursion is perpetrated, attempted, or threatened against

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Speaker 2: the territory of the United States by any foreign nation

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Speaker 2: or government. As the President makes public proclamation of the event,

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Speaker 2: all native citizens enizens are subjects of the hostile nation

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Speaker 2: who shall be within the United States and non naturalized

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Speaker 2: shall be liable to be apprehended, restrained, secured, and remove

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Speaker 2: the alien enemies. And so the point being, you don't

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Speaker 2: actually need that declared war, You just need an invasion

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Speaker 2: or predatory incursion to be proclaimed. And so that's going

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Speaker 2: to be the route that is proclaimed. There.

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Speaker 1: Five Venezuelans who are in federal custody filed a class

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Speaker 1: action lawsuit in federal court claiming that their expulsion under

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Speaker 1: this eighteenth century law would violate FI federal law and

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Speaker 1: the constitutions guarantee to do process. Tell us what the

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Speaker 1: judge decided on Saturday.

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Speaker 2: Well, what the judge basically said, is this is super complicated,

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Speaker 2: as we've just laid out. There's a lot of issues here.

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Speaker 2: You know, again, does the court even have jurisdiction to

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Speaker 2: do this? Can the court only do specific people? Can

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Speaker 2: they do the whole group? Can they do the nationwide injunction?

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Speaker 2: What is the method for reviewing this all of that?

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Speaker 2: So what the court said is if these people are

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Speaker 2: all in detention, and that means there's no harm that

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Speaker 2: will come from this group remaining in detention, then all

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Speaker 2: I want to do, as the court is preserve the

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Speaker 2: status quo, meaning keep these people in detention, but don't

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Speaker 2: actually remove them yet so that I can decide all

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Speaker 2: these other issues in the case. And what he had

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Speaker 2: said as an oral order during the hearing is if

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Speaker 2: there's people that are about to leave or are in

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Speaker 2: the air, then they need to be returned back because

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Speaker 2: he knew that the time was imminent, and so he

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Speaker 2: said that in the oral but that wasn't in the

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Speaker 2: written decision. And so that is one of the issues

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Speaker 2: here is was the compliance needed for the oral or

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Speaker 2: for the written decision or for both.

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Speaker 1: There's some confusion. So the White House Press Secretary said

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Speaker 1: that the administration did not refuse to comply with a

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Speaker 1: court order, but also that the administration believed the order

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Speaker 1: was not lawful, unconstitutional, and unfair. It had no lawful

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Speaker 1: basis because it was issued after the aliens had already

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Speaker 1: been removed from US territory, So it's unclear if they

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Speaker 1: disobeyed the.

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Speaker 2: Order or not. Who, what, when, where and why will

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Speaker 2: have to be established first, and then there will be

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Speaker 2: a determination after the who, what, when, where and why

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Speaker 2: as to whether, then based on that, was there an

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Speaker 2: ability to do what was done or was there not

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Speaker 2: a legal ability to do what was done? And then

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Speaker 2: based on that, if the court wants to go forward

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Speaker 2: and say that something was done that should have been done,

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Speaker 2: and the court has to decide what the remedy is,

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Speaker 2: and could the remedy be bringing all these people back

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Speaker 2: to the United States or could it be something even

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Speaker 2: more serious than that, And that's gonna be the questions.

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Speaker 2: And you know, I will say this, having worked in

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Speaker 2: the Department of Justice and having done this for a

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Speaker 2: couple of decades, it's not unusual. The courts have issued

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Speaker 2: these orders plenty of times where they say someone has

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Speaker 2: to be returned back to the United States who's already

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Speaker 2: been deported, the government has to find them in the

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Speaker 2: foreign country. They don't even know where they are. They

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Speaker 2: have to try to find them and bring them back,

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Speaker 2: or the plane is in the middle of the flight

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Speaker 2: and they have to bring it back. So I think

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Speaker 2: the judge was going along with that sort of pattern

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Speaker 2: and practice that had been happening for decades now, because

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Speaker 2: the judges knew that these flights could be turned back.

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Speaker 2: And this is just the first time an administration has

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Speaker 2: taken this position. So we'll be interesting to see what happens.

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Speaker 2: It's just different than what I've been done in the past.

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Speaker 2: But I don't think this has ever been litigated to

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Speaker 2: be fair, So we'll have to wait and see on that.

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Speaker 1: You mean, whether the order applies if the plane is

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Speaker 1: outside the territory of the United.

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Speaker 2: States, right, whether the order applies that the plane is

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Speaker 2: outside the territory. And also just logistically, there are safety

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Speaker 2: issues involved getting all of these folks on the plane.

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Speaker 2: What if you're closer to the landing than to the arrival,

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Speaker 2: you know, does the plane have enough fuel? All these

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Speaker 2: sorts of questions. You know that none of these things

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Speaker 2: we should take for granted, and all need to be

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Speaker 2: part of an inquiry to determine these things, because these

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Speaker 2: are all super complicated questions. And also to remove people

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Speaker 2: is quite an operation. Some people are literally given medicine

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Speaker 2: and safety precautions and all this other stuff, and so

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Speaker 2: trying to just unwind all of that isn't as easy

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Speaker 2: as people think it is to be fair to the

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Speaker 2: administration in that sense.

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Speaker 1: And what about the idea of paying another country to

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Speaker 1: keep these Venezuelans in prison, and apparently it's a notorious prison.

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Speaker 2: Well, this is what's complicated is if you could remove

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Speaker 2: the people back to Venezuela, it would undermine the argument

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Speaker 2: that this is part of an incursion because of Venezuela

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Speaker 2: didn't care and accepted the people back. Then it would

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Speaker 2: be more complicated to say these are people that the

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Speaker 2: Venezuelan government wants in the United States in order to

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Speaker 2: destabilize America, because if they're gladly accepting them back, that's

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Speaker 2: not the case. So this Elsavador thing becomes part of

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Speaker 2: the analysis because what you're saying is Venezuela won't accept

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Speaker 2: these people back, so we have to remove them somewhere.

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Speaker 2: And so it is permitted under the immigration law to

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Speaker 2: remove people to a third country. What gets complicated here

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Speaker 2: is what then, Because typically when you do these removals

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Speaker 2: to a third country, you just remove the people, meaning

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Speaker 2: they get off the plane and they live in the

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Speaker 2: third country. It's much rarer. It's not unheard of. Again,

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Speaker 2: none of these things are unheard of. They're all just

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Speaker 2: less common than more common that the people are detained

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Speaker 2: to a third country and they're put into a detention scenario.

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Speaker 2: And so the question is, well, what would be the

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Speaker 2: length of time that those individuals would be subject to

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Speaker 2: that detention Because depending on that then there's claims people

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Speaker 2: could make back in the United States about whether that

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Speaker 2: would violate a law called the Convention against Torture if

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Speaker 2: you're going to detain people indefinitely for that amount of time.

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Speaker 2: So this is a very fluid situation, and the courts

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Speaker 2: are going to have to grapple with all of those questions.

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Speaker 1: So many many questions and so few answers. Coming up

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Speaker 1: next on the Bloomberg Laanchow, I'll continue this convertation with

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Speaker 1: Leon Fresco of Holland and Knight, a lawsuit over Trump

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Speaker 1: executive orders that threaten to deport people who express views

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Speaker 1: critical of the US or Israeli government. I'm June Grosso.

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Speaker 1: When you're listening to Bloomberg. President Donald Trump is invoking

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Speaker 1: the Alien Enemies Act of seventeen ninety eight, a wartime

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Speaker 1: authority that allows the president broader leeway on policy and

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Speaker 1: executive actions, to speed up mass deportations. Trump claims that

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Speaker 1: the Venezuelan gang Trendyarragois is invading the United States. The

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Speaker 1: Act has only been used three times before, all during Wars.

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Speaker 1: I've been talking to immigration law expert Leon Fresco, a

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Speaker 1: partner at Holland and Knight. So Leon plaintiffs in a

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Speaker 1: couple of cases have accused the Trump administration of not

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Speaker 1: strictly following court orders or sort of slow walking their

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Speaker 1: response to court orders. And now there's an indication that

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Speaker 1: the Trumpet minute frstration violated a court order in deporting

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Speaker 1: a doctor from Lebanon, a kidney transplant specialist who was

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Speaker 1: supposed to start work at Brown University as an assistant

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Speaker 1: professor of medicine, even though federal Judge Leo Sorkin issued

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Speaker 1: an order that an in person hearing be scheduled for

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Speaker 1: today with the doctor brought to court. So these instances

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Speaker 1: seem to be piling up well.

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Speaker 2: Again, without getting into the specifics of each individual case,

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Speaker 2: I think it is important that when you do these operations,

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Speaker 2: everybody tried to make sure that they're doing exactly what

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Speaker 2: they're supposed to do, because in the long run, this

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Speaker 2: will make the operations better for everyone involved, for the

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Speaker 2: foreign nationals, for the government, for the courts, for the society.

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Speaker 2: And so I think the key is if you have

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Speaker 2: this accepted reality that there will be more enforcements, there

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Speaker 2: will be more removals. This is something that was campaigned

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Speaker 2: on and was elected on. The question is how can

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Speaker 2: that be done in a way where it is in

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Speaker 2: accordance with the way Congress wanted it to be done,

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Speaker 2: with the way the courts wanted to be done. And

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Speaker 2: there is no doubt that this administration can have that

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Speaker 2: kind of robust enforcement, and so the question is just

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Speaker 2: doing it in a way where it's beyond reproach. And

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Speaker 2: so hopefully, you know there are starts to this, but

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Speaker 2: hopefully everything can be done in that way. But yes,

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Speaker 2: you're seeing cases where that's certainly being challenged.

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Speaker 1: I thought that Venezuela had agreed to take back Venezuelans.

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Speaker 2: Yes, this is where it's complicated. I think the key

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Speaker 2: is are the people that Venezuela is agreeing to take

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Speaker 2: back just people who are not fitting this criminal profile

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Speaker 2: and instead people who are fitting a profile file where

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Speaker 2: perhaps it's just someone who came on a visitor visa

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Speaker 2: or a student visa and overstate that visa, and so

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Speaker 2: then it's just a matter of repatriating someone like that

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Speaker 2: as opposed to someone with these criminal profiles, which again,

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Speaker 2: it does make it harder to invoke the Alien Enemies

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Speaker 2: Act if you can deport the people back to that country,

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Speaker 2: because the point is it undermines the argument that there

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Speaker 2: was an incursion there if the country's accepting it. So

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Speaker 2: I think if you're going to try to establish this

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Speaker 2: Alien Enemies Act, what you have to say is we've

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Speaker 2: asked Venezuela to take these individuals back, and they won't

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Speaker 2: take them back.

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Speaker 1: Is this an indication of the difficulty that the Trump

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Speaker 1: administration is having deporting people because you know, as we've

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Speaker 1: discussed before, during his campaign, Trump said, you know, millions

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Speaker 1: of people are going to be deported, and we have

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Speaker 1: Tom Holman, the Borders are saying, first they're going to

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Speaker 1: people who have criminal violations, and you know, we haven't

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Speaker 1: seen those mass deportations that were promised.

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Speaker 2: Well, the problem is this, there's only so many people

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Speaker 2: that are in the pipeline for deportation right now, and

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Speaker 2: those are the people with final orders of removal, and

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Speaker 2: those are the people with criminal convictions that are easy

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Speaker 2: enough to get removal orders for because they don't have

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Speaker 2: a way to challenge any further they're removal. That number

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Speaker 2: is a finite number, and it's going to be complicated

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Speaker 2: to get more than that number in a rapid fashion.

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Speaker 2: And so the Alien Enemies Act is designed to try

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Speaker 2: to get larger segments out of the United States without

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Speaker 2: having to go through that administrative hearing process, because they

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Speaker 2: don't want to have to take the months or years

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Speaker 2: where this is necessary. The courts right now are taking

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Speaker 2: cases for twenty thirty and twenty thirty one, and so

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Speaker 2: the problem is what do you do with that situation

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Speaker 2: if you're trying to increase the pipeline And there's also

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Speaker 2: no funding for this, which is something they're looking to

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Speaker 2: fix in the Reconciliation bills, and so from all of

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Speaker 2: these perspectives, it's just a matter of I don't think

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Speaker 2: anybody is going to doubt that a year or two

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Speaker 2: years from now, the removal numbers will be much much

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Speaker 2: higher than they are now. The question is is that

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Speaker 2: going to be a patient, ramping up approach to get

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Speaker 2: there or are there going to be efforts to try

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Speaker 2: to get that number as high as possible as soon

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Speaker 2: as possible.

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Speaker 1: And we've discussed the pending case against the former Columbia

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Speaker 1: graduate student where the Trump administration is using a different provision,

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Speaker 1: using the Secretary of State.

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Speaker 2: Right in that case, they're saying that the Secretary of

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Speaker 2: State has designated the Columbia student as a person who

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Speaker 2: has serious adverse consequences to the US government and needs

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Speaker 2: to be deported on that basis. And this is actually

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Speaker 2: similar to the Alien Enemies Act in the sense of

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Speaker 2: is it something that is amenable to judicial review or not?

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Speaker 2: And that's the question. This is yet another way to

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Speaker 2: remove people that's intended to not have judicial review, and

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Speaker 2: the question is will the court assign judicial reviews to

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Speaker 2: this or not.

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Speaker 1: And at Cornell University, professor and two grad students are

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Speaker 1: suing Trump and DHS over executive orders that threaten to

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Speaker 1: deport and prosecute those who express views critical of the

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Speaker 1: US or Israeli governments. This perhaps is also an outgrowth

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Speaker 1: of the arrest of that Columbia University graduate student.

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Speaker 2: Right. I think what's happening is that there are students

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Speaker 2: who are saying, well, rather than wait to see if

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Speaker 2: I get arrested, maybe it's a better lead litigation strategy

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Speaker 2: for me to proactively sue for some sort of declaratory

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Speaker 2: and injunctive relief so that I can actually sort of

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Speaker 2: control my own destiny in the United States. I do

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Speaker 2: think this is the kind of thing where the government,

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Speaker 2: the federal government is going to say, there's no jurisdiction

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Speaker 2: to hear this, because you can't actually hear these things

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Speaker 2: until you're placed in removal proceedings. The risk of being

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Speaker 2: in removal proceedings is not enough. You actually have to

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Speaker 2: be placed in removal proceedings, then make these challenges, and

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Speaker 2: then if you lose, only then you can go to

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Speaker 2: federal courts and appeal your removal order. That's what the

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Speaker 2: federal government argues in all of these cases, and so

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Speaker 2: it will have to be a departure from that precedent

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Speaker 2: by the court that they're going to actually get at

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Speaker 2: these issues proactively and upfront. I understand the strategy why

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Speaker 2: one would want to control their own destiny, but the

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Speaker 2: case law isn't exactly where these students would want it

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Speaker 2: to be with regard to being able to challenge these

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Speaker 2: things upfront when there isn't currently a deportation proceeding pendent.

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Speaker 1: I'm not sure if the students that just sued are

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Speaker 1: here on student visas or not.

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Speaker 2: Well, yeah, that's not clear either. And if they're just

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Speaker 2: attacking the free speech without anything related to immigration, well

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Speaker 2: then that's fine. That's going to be its own lawsuit

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Speaker 2: and they can attack that and that will just be

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Speaker 2: decided on the merite. But if one of the pieces

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Speaker 2: of relief that they're asking for is that this order

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Speaker 2: cannot be used as a predicate for an immigration action,

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Speaker 2: that's where I'm saying that they're going to have a

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Speaker 2: tough time actually getting that part of the release.

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Speaker 1: Well, some of these issues are definitely going to end

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Speaker 1: up at the Supreme Court. Thanks so much, Leon. That's

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Speaker 1: Leon Fresco of Honda Knight. Same sex marriage became legal

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Speaker 1: nationwide in June of twenty fifteen, when the Supreme Court

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Speaker 1: ruling in the case of Obergerfel v. Hodges ublish the

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Speaker 1: right to same sex marriage under the Equal Protection Clause

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Speaker 1: and the Due Process Clause of the Fourteenth Amendment. Same

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Speaker 1: sex marriage rights were bolstered in twenty twenty two when

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Speaker 1: Congress passed the Respect for Marriage Act, but conservative legislators

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Speaker 1: are increasingly speaking out against that landmark ruling, and this year,

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Speaker 1: legislatures in a handful of states have introduced measures urging

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Speaker 1: the Supreme Court to overturn Obergerfeld. In North Dakota, the

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Speaker 1: House passed such a resolution, but it failed to pass

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Speaker 1: in the Senate last Thursday. These resolutions have no legal weight,

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Speaker 1: but they do signal the opinions of the legislators. Add

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Speaker 1: to that the fact that two conservative Supreme Court Justices,

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Speaker 1: Clarence Thomas and Samuel Alito, are on record as wanting

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Speaker 1: to revisit the Obergerfelt case, joining me his family law

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Speaker 1: attorney Susan Bender, a partner at benderin Crane. So we

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Speaker 1: can put this on too context explain in the basis

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Speaker 1: of the Supreme Court's ruling in know Bergerfeld.

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Speaker 3: Well, first, you know, there are a couple of things

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Speaker 3: you have to look at here. Obergeffeld didn't come out

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Speaker 3: of the woodwork. Aubergeffel was in twenty fifteen, and Obergeffel

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Speaker 3: on the heels of United statesy Windsor said that a

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Speaker 3: state is required to give a license between two people

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Speaker 3: of the same sex. That's a very big deal, right,

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Speaker 3: because at no point before that did the United States

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Speaker 3: Supreme Court say that you got to give a license

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Speaker 3: to two people the same sex. So that was Obergetfel

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Speaker 3: in twenty fifteen. Since twenty and fifteen, states around the country,

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Speaker 3: some states have been finding that some states are okay

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Speaker 3: with it. In New York State is totally okay with it. Well,

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Speaker 3: New York State in twenty eleven came out with a

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Speaker 3: statute which says, yep, you got to give license to

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Speaker 3: same sex couples in New York State, which is was

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Speaker 3: a very big deal in twenty eleven. Let me let

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Speaker 3: me assure you after years of discrimination against non heterosexuals.

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Speaker 3: It was a a landslide decision.

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Speaker 1: Justices Clarence Thomas and Samuel Alito have openly expressed that

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Speaker 1: they would like to revisit the Obergerfeld decision, and, as

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Speaker 1: Thomas said, in the case that overturned the constitutional right

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Speaker 1: to abortion the Dobbs case. He said, as I have

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Speaker 1: previously explained, substantive due process is an oxymoron that lacks

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Speaker 1: any basis in the Constitution. He called it a legal

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Speaker 1: fiction that is particularly dangerous. Explain what substantive due process

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Speaker 1: is and how it's important in these decisions.

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Speaker 3: He wrote a concurring opinion, and he specifically said, he

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Speaker 3: very clearly said that it's time to quote correct the error, okay,

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Speaker 3: and the error is that, as you noted, that substantive

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Speaker 3: process precedents are demonstra erroneous because there is nothing in

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Speaker 3: the Constitution. There's nothing in the Constitution according to Alito

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Speaker 3: and Thomas, which gave the court the right to expand

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Speaker 3: what would they call fundamental rights. Right to marry, right

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Speaker 3: to an abortion, right to interracial relationships. I mean, these

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Speaker 3: are all under the number of various provisions of the

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Speaker 3: fourteenth Amendment. And if it was up to Thomas and Alito,

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Speaker 3: there would be no subject of due process, which means

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Speaker 3: contraception under Griswold, right to marry, livings against Virginia. And

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Speaker 3: then we have Obergefel and all the rights that many

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Speaker 3: of us considered to be our fundamental due process rights.

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Speaker 3: Thomas is saying it's not fundamental and it's not due process.

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Speaker 3: You should go to the states and work it out

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Speaker 3: of the states.

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Speaker 1: Are people concerned that there are more justices on the

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Speaker 1: Supreme Court that might want to revisit Obergefeld.

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Speaker 3: So now getting to the writing on the wall, and

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Speaker 3: this is an important point. As you noted in Dobbs,

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Speaker 3: Thomas said that it's time to correct the error. It

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Speaker 3: is clear to many of us who watch the Court

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Speaker 3: that there will come a case percolating, probably procolating right

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Speaker 3: now in the States where Thomas and Alito are going

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Speaker 3: to have the opportunity to overturn substanitute process cases, and

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Speaker 3: specifically Obergefell and the United States se Windsor and perhaps

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Speaker 3: Gruswold and other substance thute process cases. There's no question

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Speaker 3: in our minds that is going to happen. The question

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Speaker 3: is not whether. The question is when. And that's an

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Speaker 3: important factor because cases have to percolate up to the

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Speaker 3: Supreme Court. You just don't go to the Supreme Court

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Speaker 3: and say, hey, listen, I want to undo Obergeffel, which

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Speaker 3: some of the states have been trying to do by

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Speaker 3: passing resolutions. So the Court. Supreme Court will have to

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Speaker 3: take the case and on the issue of Obergeffel and

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Speaker 3: the Respect for Marriage Act, we believe it's going to happen.

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Speaker 3: We just don't know when, and of course we're hoping

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Speaker 3: it doesn't happen within this administration. I don't want to

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Speaker 3: get political, but if it happened within this administration, because

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Speaker 3: of the event right now, it's pretty clear to us

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Speaker 3: that Obergefell will be reversed.

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Speaker 1: There as like thirty five states that have laws or

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Speaker 1: constitutional amendments on the books that would reinstate bans on

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Speaker 1: same sex marriage if the Obergefel ruling were overturned, and

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Speaker 1: some states have introduced resolutions asking the Supreme Court to

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Speaker 1: overturn Obergerfeld. None of those has passed that I know of.

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Speaker 3: Well, we have well right now we have nine states

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Speaker 3: which have formulated resolutions to encourage the Supreme Court to

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Speaker 3: overturn Obergeffell. That we know for sure as of right now,

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Speaker 3: many states have same sex marriage on the books. So

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Speaker 3: the question then becomes, I'm going to say, Thomas and

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Speaker 3: Alito going to send it back to the states for

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Speaker 3: the states to maybe reassess Obergeffell in light of this administration,

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Speaker 3: that would.

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Speaker 1: Be, my guests, the Respect for Marriage Act in twenty

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Speaker 1: twenty two. What does that do?

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Speaker 3: Well, let me just say the Respect for Marriage Act,

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Speaker 3: I think was a brilliant name because in nineteen and

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Speaker 3: I have to say this, nineteen ninety six, it was

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00:26:14,119 --> 00:26:18,959
Speaker 3: President Clinton at that point, supported by the foreign President Biden,

436
00:26:19,359 --> 00:26:23,320
Speaker 3: the Defensive Marriage Act, which said that a marriage could

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00:26:23,359 --> 00:26:25,520
Speaker 3: be between only one man and one woman. So now

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00:26:25,760 --> 00:26:29,480
Speaker 3: fast forward to twenty twenty two, some brilliant I would say,

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00:26:29,520 --> 00:26:31,720
Speaker 3: congress person said no, we're gonna call it the respects

440
00:26:31,800 --> 00:26:35,200
Speaker 3: Marriage Act. And what the Respect for Marriage Act says

441
00:26:35,480 --> 00:26:39,760
Speaker 3: is And by the way, this was congressional. This was

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00:26:40,160 --> 00:26:44,639
Speaker 3: congressional after Dobbs. So after Dobbs that come out with

443
00:26:44,680 --> 00:26:47,640
Speaker 3: the Respectful Marriage Act was says well, marriage can be

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00:26:47,640 --> 00:26:51,200
Speaker 3: between members of the same sex. And if a particular

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00:26:51,280 --> 00:26:56,520
Speaker 3: state grants marriage between same sex couples, the other states

446
00:26:56,560 --> 00:26:58,520
Speaker 3: have to give a comedy. They have to recognize it,

447
00:26:58,960 --> 00:27:02,040
Speaker 3: which is important. So for example, in New York State,

448
00:27:02,119 --> 00:27:04,879
Speaker 3: if we have same sex marriage couple and they moved

449
00:27:04,880 --> 00:27:07,600
Speaker 3: to North Dakota, which no longer recognize the same sex

450
00:27:07,640 --> 00:27:10,760
Speaker 3: marriage in death state, North Dakota has to respect New

451
00:27:10,840 --> 00:27:13,320
Speaker 3: York state law. That's a very big deal, and that

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00:27:13,480 --> 00:27:16,800
Speaker 3: was twenty twenty two unto the Biden administration. On the

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00:27:16,840 --> 00:27:18,120
Speaker 3: heels of Dobbs.

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00:27:18,600 --> 00:27:23,360
Speaker 1: Let's just say that the Supreme Court overturns same sex marriage,

455
00:27:24,280 --> 00:27:28,440
Speaker 1: then Congress has to also overturn the Respect for Marriage Act.

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00:27:28,960 --> 00:27:34,880
Speaker 3: Yes, unless unless the Supreme Court both overturns over Geffell

457
00:27:35,240 --> 00:27:40,480
Speaker 3: and reverses the Congressional decision. That's possible. Totally possible. And

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00:27:41,560 --> 00:27:45,080
Speaker 3: that's my guess again, you know, for talking opinion here,

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00:27:45,320 --> 00:27:47,600
Speaker 3: that's what the Supreme Court is waiting to do. They're

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00:27:47,600 --> 00:27:51,320
Speaker 3: waiting for this, for the ability to address substantives due process,

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00:27:51,600 --> 00:27:55,480
Speaker 3: address over Geffell, reverse it, and reverse the Respect for

462
00:27:55,560 --> 00:27:58,760
Speaker 3: Marriage Act. Just like DOMA was overturned in part by

463
00:27:59,080 --> 00:28:02,760
Speaker 3: the United States. They're in twenty thirteen. The Supreme Court

464
00:28:02,800 --> 00:28:05,040
Speaker 3: has the power to overturn the Respect for Marriage Act.

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00:28:05,040 --> 00:28:07,360
Speaker 3: The question is will they do it.

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00:28:08,200 --> 00:28:13,760
Speaker 1: As far as Trump goes, he's attacked LGBTQ rights since

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00:28:13,880 --> 00:28:17,240
Speaker 1: day one during his campaign, et cetera. But he hasn't

468
00:28:17,280 --> 00:28:19,720
Speaker 1: directly targeted same sex marriage, has he.

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00:28:20,160 --> 00:28:22,480
Speaker 3: Not to my knowledge, not to mych And what he

470
00:28:22,560 --> 00:28:25,960
Speaker 3: targeted was more having to do with the transgender issues.

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00:28:26,359 --> 00:28:30,720
Speaker 3: He has not to my knowledge, attacked or addressed same

472
00:28:30,760 --> 00:28:31,439
Speaker 3: sex marriage.

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00:28:31,880 --> 00:28:35,679
Speaker 1: If the Supreme Court were to reverse the right to

474
00:28:35,720 --> 00:28:38,960
Speaker 1: same sex marriage, then you have all these couples who

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00:28:38,960 --> 00:28:43,200
Speaker 1: are already married, many of whom have children. It would

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00:28:43,240 --> 00:28:45,840
Speaker 1: throw their lives into chaos. I mean, what would happen?

477
00:28:46,520 --> 00:28:52,360
Speaker 3: So that's where family court practitioners do best. There are

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00:28:52,360 --> 00:28:57,840
Speaker 3: two major problems if same sex marriage is reversed. One

479
00:28:57,880 --> 00:29:01,400
Speaker 3: is financial, of course, and one is parents. Who is

480
00:29:01,600 --> 00:29:04,600
Speaker 3: the parent? So, for example, in New York State it

481
00:29:04,680 --> 00:29:07,080
Speaker 3: is presumed and in many states also a child born

482
00:29:07,840 --> 00:29:10,719
Speaker 3: of the marriage is presumed to be the child of

483
00:29:10,760 --> 00:29:15,800
Speaker 3: that marriage. So in New York State, the non biological

484
00:29:15,880 --> 00:29:19,320
Speaker 3: parent can go into a hospital, make decisions on behalf

485
00:29:19,320 --> 00:29:21,120
Speaker 3: of the child, and roll the childs in school do

486
00:29:21,200 --> 00:29:24,920
Speaker 3: all the things their parents do. So if Obergeffel and

487
00:29:24,960 --> 00:29:28,160
Speaker 3: the respectful marriage acts are overturned, does it call into

488
00:29:28,240 --> 00:29:32,440
Speaker 3: question the ability of the other parent to make those

489
00:29:32,480 --> 00:29:35,520
Speaker 3: decisions on behalf of the child, and then their state

490
00:29:35,560 --> 00:29:38,680
Speaker 3: decisions and their medical decisions, in the school decisions, there

491
00:29:38,680 --> 00:29:41,320
Speaker 3: are all the kinds of decisions that parents have. Does

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00:29:41,320 --> 00:29:44,000
Speaker 3: a call into question in my view, it will, but

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00:29:44,160 --> 00:29:49,320
Speaker 3: it would require my opinion, both reversal of Obergeffel and

494
00:29:49,360 --> 00:29:50,680
Speaker 3: the respectful Marriage Acts.

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00:29:51,000 --> 00:29:53,960
Speaker 1: What are you advising your clients who are in same

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00:29:54,000 --> 00:29:57,560
Speaker 1: sex marriages and have children? Are there any proactive steps

497
00:29:57,560 --> 00:29:58,680
Speaker 1: that they're taking now?

498
00:29:59,120 --> 00:30:03,720
Speaker 3: When are clients tell us they're going to travel, and

499
00:30:03,800 --> 00:30:06,640
Speaker 3: if they travel to a state, let's say like Florida,

500
00:30:07,320 --> 00:30:11,360
Speaker 3: we have called Florida attorneys, and Florida attorneys have prepared

501
00:30:11,800 --> 00:30:16,000
Speaker 3: powers of attorney for both parents to be able to

502
00:30:16,000 --> 00:30:19,080
Speaker 3: make decisions on behalf of that child for any purpose,

503
00:30:19,400 --> 00:30:25,560
Speaker 3: for any purpose including financial, medical, hospitalization. Those are the

504
00:30:25,600 --> 00:30:27,840
Speaker 3: big three issues off the top of my head right now.

505
00:30:27,880 --> 00:30:31,200
Speaker 3: In terms of finances, we have our clients prepare everything

506
00:30:31,280 --> 00:30:36,640
Speaker 3: from certain kind of life insurance trusts to actual life

507
00:30:36,680 --> 00:30:40,920
Speaker 3: insurance policies, to owning property as joint tenants with rights

508
00:30:40,920 --> 00:30:43,360
Speaker 3: of survivorship which means it goes from one party to

509
00:30:43,400 --> 00:30:47,080
Speaker 3: the next party of party one passes away instead of

510
00:30:47,200 --> 00:30:50,960
Speaker 3: going through the estate. There are issues having to do

511
00:30:51,120 --> 00:30:55,520
Speaker 3: with estate planning or beneficial designations in wills. Which has

512
00:30:55,600 --> 00:30:59,200
Speaker 3: wills mended? You know, typically it will say all of

513
00:30:59,240 --> 00:31:04,000
Speaker 3: my properties to go to my children who survived well,

514
00:31:04,000 --> 00:31:06,040
Speaker 3: we can't say my children who survive. We have to

515
00:31:06,040 --> 00:31:10,080
Speaker 3: put in the names of the children who survived because

516
00:31:10,680 --> 00:31:12,360
Speaker 3: if well, I'm not worthing of New York State. But

517
00:31:12,400 --> 00:31:15,480
Speaker 3: if in another state parties moved to another state, will

518
00:31:15,520 --> 00:31:21,560
Speaker 3: that state permit the beneficiary who's a child of the

519
00:31:21,680 --> 00:31:24,600
Speaker 3: marriage in New York but not recognized in another state

520
00:31:25,040 --> 00:31:30,640
Speaker 3: to inherit. So what we do is as family law practitioners,

521
00:31:30,680 --> 00:31:33,400
Speaker 3: as we read the writing on the wall, and we

522
00:31:33,480 --> 00:31:37,719
Speaker 3: do a state planning powers of attorney and then financial planning.

523
00:31:38,360 --> 00:31:42,160
Speaker 1: Do you see any cases right now at the appellate

524
00:31:42,280 --> 00:31:46,680
Speaker 1: level or lower court levels that might end up at

525
00:31:46,680 --> 00:31:49,600
Speaker 1: the Supreme Court threatening same sex marriage?

526
00:31:50,040 --> 00:31:54,240
Speaker 3: All right? So right now, you know, I comb the

527
00:31:54,320 --> 00:32:00,280
Speaker 3: internet and I haven't seen yet any cases that are

528
00:32:00,320 --> 00:32:02,600
Speaker 3: on all fours to make it to the Supreme Court

529
00:32:02,720 --> 00:32:05,080
Speaker 3: on the issue of reversing ober Geftfel and the Respect

530
00:32:05,120 --> 00:32:08,880
Speaker 3: for Marriage Act. But remember, there are organizations around the

531
00:32:08,920 --> 00:32:12,560
Speaker 3: country looking for those cases to have the opportunity to

532
00:32:12,600 --> 00:32:14,959
Speaker 3: work themselves up to the system to reverse ober Guestfell

533
00:32:15,000 --> 00:32:17,120
Speaker 3: and the Respect for Marriage Act. But sitting here right

534
00:32:17,160 --> 00:32:19,080
Speaker 3: now between you and me, there are no cases that

535
00:32:19,120 --> 00:32:21,280
Speaker 3: I'm aware of that fit all fours.

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00:32:21,680 --> 00:32:24,920
Speaker 1: Thanks for joining me. That's Susan Bender of Bender and

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00:32:25,000 --> 00:32:27,480
Speaker 1: Crane and that's it for this edition of The Bloomberg

538
00:32:27,560 --> 00:32:30,240
Speaker 1: Law Show. Remember you can always get the latest legal

539
00:32:30,280 --> 00:32:33,239
Speaker 1: news on our Bloomberg Law Podcast. You can find them

540
00:32:33,280 --> 00:32:38,000
Speaker 1: on Apple Podcasts, Spotify, and at www dot Bloomberg dot

541
00:32:38,040 --> 00:32:41,720
Speaker 1: com slash podcast Slash Law, and remember to tune into

542
00:32:41,720 --> 00:32:45,080
Speaker 1: The Bloomberg Law Show every weeknight at ten pm Wall

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00:32:45,120 --> 00:32:48,960
Speaker 1: Street Time. I'm June Grosso and you're listening to Bloomberg