WEBVTT - Did Trump Defy a Court Order? 0:00:02.759 --> 0:00:07.800 This is Bloomberg Law, with June Grossel from Bloomberg Radio 0:00:09.080 --> 0:00:12.360 full to President Bucelli and to al Salvador for accepting 0:00:12.520 --> 0:00:16.320 these heinous monsters where they will face justice. An escalating 0:00:16.440 --> 0:00:21.079 legal fight over the Trump administration's decision to deport hundreds 0:00:21.120 --> 0:00:25.439 of alleged Venezuelan gang members to L Salvador. On Saturday, 0:00:25.680 --> 0:00:30.080 a federal judge issued an order temporarily barring the deportations 0:00:30.520 --> 0:00:35.280 under an eighteenth century wartime law invoked by President Donald Trump. 0:00:35.640 --> 0:00:39.199 The White House says the administration did not refuse to 0:00:39.240 --> 0:00:42.160 comply with a court order. Join me. His immigration law 0:00:42.200 --> 0:00:45.959 expert Leon Fresco, a partner at Hollanda Knight, tell us 0:00:45.960 --> 0:00:51.000 about this eighteenth century wartime law, it's only been used 0:00:51.000 --> 0:00:55.480 three times before the War of eighteen twelve, World War One, 0:00:55.760 --> 0:00:56.640 and World War Two. 0:00:57.240 --> 0:00:59.680 Well, as you said, the Alien Enemies Bag from seventeen 0:00:59.680 --> 0:01:04.399 eighty nine from the John Adams administration was there to 0:01:04.440 --> 0:01:09.960 prevent a situation where essentially either we would get invaded 0:01:10.000 --> 0:01:14.000 and we couldn't take people outside of the United States, 0:01:14.160 --> 0:01:18.960 or we would basically be invaded surrepficiously by people who 0:01:19.000 --> 0:01:21.360 would then sort of pick up arms later at some 0:01:21.480 --> 0:01:25.440 future point and destabilize the United States. And as you said, 0:01:25.959 --> 0:01:28.400 it was invoked three times in the history of the 0:01:28.520 --> 0:01:32.720 United States. And so the question in President Trump's mind 0:01:32.920 --> 0:01:36.760 is can this be invoked now to stop what he 0:01:36.880 --> 0:01:40.000 deems to be an invasion in the same sense, which 0:01:40.040 --> 0:01:43.840 would be that if people from Venezuela are coming at 0:01:43.959 --> 0:01:46.399 large numbers who then come into the United States and 0:01:46.440 --> 0:01:50.080 destabilize certain communities. He feels like that's no different than 0:01:50.120 --> 0:01:53.000 if it had been a coordinated invasion. But said, he 0:01:53.040 --> 0:01:56.920 can designate this group trend Ragua, which is a sort 0:01:56.960 --> 0:02:00.440 of destabilizing gang, and say that they came in with 0:02:00.680 --> 0:02:04.720 the passive acquiescence of the Venezuelan government, such that they're 0:02:04.760 --> 0:02:09.360 a hostile group actor who can be deported without a hearing. 0:02:09.480 --> 0:02:12.480 And so that's what's at stake here, is is that 0:02:13.040 --> 0:02:18.320 something that's possible to do? But quite frankly, even more important, 0:02:18.600 --> 0:02:22.280 the real threshold question is will the court say that 0:02:22.360 --> 0:02:25.760 a determination under the Alien Enemies Act is what's called 0:02:25.760 --> 0:02:29.560 a political question, meaning even if the judges disagree, they 0:02:29.600 --> 0:02:31.720 won't get into it because they just won't review it. 0:02:31.760 --> 0:02:34.160 They'll just say, look, that's for the president to make 0:02:34.200 --> 0:02:37.919 the president swears it out to the Constitution. And if 0:02:37.919 --> 0:02:41.760 the president thinks that somebody is a dangerous organization, we 0:02:41.800 --> 0:02:44.000 don't have time to review this in the courts. They 0:02:44.040 --> 0:02:47.680 just need to make this invocation and get the people out. 0:02:47.840 --> 0:02:50.639 And so that's what's going to be. To me, the 0:02:50.680 --> 0:02:54.440 most interesting threshold question is does this even get a 0:02:54.480 --> 0:02:57.200 review in the first place. Then you have the second 0:02:57.240 --> 0:03:00.400 and third order questions. It just gets a review. What 0:03:00.520 --> 0:03:03.320 is the review? Is the review? Did you make the 0:03:03.440 --> 0:03:06.960 right call? Is this a destabilizing group? And then the 0:03:07.000 --> 0:03:11.040 third order question is, well, is this particular human being 0:03:11.120 --> 0:03:13.720 that you're about to deport one of the people who's 0:03:13.760 --> 0:03:16.240 a member of the group, and in what way can 0:03:16.240 --> 0:03:20.040 someone challenge such a determination? So all of those questions 0:03:20.040 --> 0:03:21.079 are up progress here. 0:03:21.360 --> 0:03:23.920 So it just has to be a destabilizing group or 0:03:23.919 --> 0:03:27.680 does it have to actually be that they're perpetrating an invasion? 0:03:29.040 --> 0:03:31.680 Well, you have to declare that there's an invasion, there's 0:03:31.680 --> 0:03:34.000 no doubt about it. But it doesn't have to be 0:03:34.560 --> 0:03:38.920 an official invasion in the way people think about it, 0:03:38.960 --> 0:03:43.040 where people come in uniform and they actually all have 0:03:43.200 --> 0:03:46.800 guns and helmets and they cross the border. That part 0:03:47.240 --> 0:03:52.240 is not necessary here. What is necessary is that you 0:03:52.440 --> 0:03:57.800 find that people basically are entering the United States again 0:03:58.480 --> 0:04:01.240 in an invasion, so to speak. I'll read the text 0:04:01.440 --> 0:04:04.200 whenever there's a declared war between the United States and 0:04:04.240 --> 0:04:07.480 any foreign nation or government, here's the key. Or any 0:04:07.600 --> 0:04:13.920 invasion or predatory incursion is perpetrated, attempted, or threatened against 0:04:13.920 --> 0:04:16.120 the territory of the United States by any foreign nation 0:04:16.240 --> 0:04:20.120 or government. As the President makes public proclamation of the event, 0:04:20.720 --> 0:04:24.039 all native citizens enizens are subjects of the hostile nation 0:04:24.720 --> 0:04:27.080 who shall be within the United States and non naturalized 0:04:27.120 --> 0:04:30.400 shall be liable to be apprehended, restrained, secured, and remove 0:04:30.440 --> 0:04:33.760 the alien enemies. And so the point being, you don't 0:04:33.839 --> 0:04:37.480 actually need that declared war, You just need an invasion 0:04:37.640 --> 0:04:42.960 or predatory incursion to be proclaimed. And so that's going 0:04:43.040 --> 0:04:45.400 to be the route that is proclaimed. There. 0:04:46.040 --> 0:04:50.279 Five Venezuelans who are in federal custody filed a class 0:04:50.320 --> 0:04:55.839 action lawsuit in federal court claiming that their expulsion under 0:04:55.880 --> 0:05:00.719 this eighteenth century law would violate FI federal law and 0:05:00.760 --> 0:05:04.520 the constitutions guarantee to do process. Tell us what the 0:05:04.680 --> 0:05:07.360 judge decided on Saturday. 0:05:07.279 --> 0:05:11.120 Well, what the judge basically said, is this is super complicated, 0:05:11.160 --> 0:05:14.239 as we've just laid out. There's a lot of issues here. 0:05:14.839 --> 0:05:17.560 You know, again, does the court even have jurisdiction to 0:05:17.680 --> 0:05:21.159 do this? Can the court only do specific people? Can 0:05:21.200 --> 0:05:24.440 they do the whole group? Can they do the nationwide injunction? 0:05:24.839 --> 0:05:27.200 What is the method for reviewing this all of that? 0:05:27.480 --> 0:05:30.520 So what the court said is if these people are 0:05:30.560 --> 0:05:35.000 all in detention, and that means there's no harm that 0:05:35.200 --> 0:05:39.040 will come from this group remaining in detention, then all 0:05:39.080 --> 0:05:40.880 I want to do, as the court is preserve the 0:05:40.920 --> 0:05:44.080 status quo, meaning keep these people in detention, but don't 0:05:44.080 --> 0:05:47.240 actually remove them yet so that I can decide all 0:05:47.240 --> 0:05:49.680 these other issues in the case. And what he had 0:05:49.720 --> 0:05:52.240 said as an oral order during the hearing is if 0:05:52.240 --> 0:05:54.880 there's people that are about to leave or are in 0:05:54.920 --> 0:05:57.480 the air, then they need to be returned back because 0:05:57.520 --> 0:05:59.880 he knew that the time was imminent, and so he 0:06:00.040 --> 0:06:01.839 said that in the oral but that wasn't in the 0:06:01.839 --> 0:06:05.120 written decision. And so that is one of the issues 0:06:05.160 --> 0:06:08.640 here is was the compliance needed for the oral or 0:06:08.680 --> 0:06:10.359 for the written decision or for both. 0:06:10.640 --> 0:06:15.839 There's some confusion. So the White House Press Secretary said 0:06:15.920 --> 0:06:19.360 that the administration did not refuse to comply with a 0:06:19.440 --> 0:06:23.520 court order, but also that the administration believed the order 0:06:23.600 --> 0:06:28.239 was not lawful, unconstitutional, and unfair. It had no lawful 0:06:28.279 --> 0:06:31.680 basis because it was issued after the aliens had already 0:06:31.680 --> 0:06:36.120 been removed from US territory, So it's unclear if they 0:06:36.320 --> 0:06:37.080 disobeyed the. 0:06:37.120 --> 0:06:40.200 Order or not. Who, what, when, where and why will 0:06:40.200 --> 0:06:43.359 have to be established first, and then there will be 0:06:43.360 --> 0:06:46.039 a determination after the who, what, when, where and why 0:06:46.600 --> 0:06:51.600 as to whether, then based on that, was there an 0:06:51.600 --> 0:06:54.120 ability to do what was done or was there not 0:06:54.200 --> 0:06:56.880 a legal ability to do what was done? And then 0:06:57.000 --> 0:07:00.000 based on that, if the court wants to go forward 0:07:00.240 --> 0:07:03.280 and say that something was done that should have been done, 0:07:03.320 --> 0:07:05.320 and the court has to decide what the remedy is, 0:07:05.800 --> 0:07:08.640 and could the remedy be bringing all these people back 0:07:08.880 --> 0:07:11.400 to the United States or could it be something even 0:07:11.640 --> 0:07:17.120 more serious than that, And that's gonna be the questions. 0:07:17.280 --> 0:07:19.720 And you know, I will say this, having worked in 0:07:19.720 --> 0:07:22.080 the Department of Justice and having done this for a 0:07:22.160 --> 0:07:26.280 couple of decades, it's not unusual. The courts have issued 0:07:26.280 --> 0:07:31.000 these orders plenty of times where they say someone has 0:07:31.040 --> 0:07:33.480 to be returned back to the United States who's already 0:07:33.480 --> 0:07:36.160 been deported, the government has to find them in the 0:07:36.200 --> 0:07:37.920 foreign country. They don't even know where they are. They 0:07:37.960 --> 0:07:40.160 have to try to find them and bring them back, 0:07:40.400 --> 0:07:42.280 or the plane is in the middle of the flight 0:07:42.360 --> 0:07:45.080 and they have to bring it back. So I think 0:07:45.160 --> 0:07:48.840 the judge was going along with that sort of pattern 0:07:48.880 --> 0:07:52.440 and practice that had been happening for decades now, because 0:07:52.440 --> 0:07:55.200 the judges knew that these flights could be turned back. 0:07:55.680 --> 0:07:58.960 And this is just the first time an administration has 0:07:59.000 --> 0:08:01.960 taken this position. So we'll be interesting to see what happens. 0:08:02.120 --> 0:08:04.680 It's just different than what I've been done in the past. 0:08:04.800 --> 0:08:06.920 But I don't think this has ever been litigated to 0:08:06.960 --> 0:08:09.040 be fair, So we'll have to wait and see on that. 0:08:09.480 --> 0:08:12.920 You mean, whether the order applies if the plane is 0:08:13.080 --> 0:08:14.960 outside the territory of the United. 0:08:14.760 --> 0:08:17.200 States, right, whether the order applies that the plane is 0:08:17.240 --> 0:08:22.239 outside the territory. And also just logistically, there are safety 0:08:22.280 --> 0:08:25.480 issues involved getting all of these folks on the plane. 0:08:26.160 --> 0:08:29.480 What if you're closer to the landing than to the arrival, 0:08:29.680 --> 0:08:32.240 you know, does the plane have enough fuel? All these 0:08:32.280 --> 0:08:34.600 sorts of questions. You know that none of these things 0:08:34.640 --> 0:08:36.560 we should take for granted, and all need to be 0:08:36.600 --> 0:08:40.120 part of an inquiry to determine these things, because these 0:08:40.120 --> 0:08:43.920 are all super complicated questions. And also to remove people 0:08:44.640 --> 0:08:48.960 is quite an operation. Some people are literally given medicine 0:08:49.000 --> 0:08:53.400 and safety precautions and all this other stuff, and so 0:08:53.440 --> 0:08:55.640 trying to just unwind all of that isn't as easy 0:08:55.640 --> 0:08:57.600 as people think it is to be fair to the 0:08:57.640 --> 0:08:59.000 administration in that sense. 0:08:59.160 --> 0:09:05.120 And what about the idea of paying another country to 0:09:05.240 --> 0:09:11.240 keep these Venezuelans in prison, and apparently it's a notorious prison. 0:09:11.800 --> 0:09:15.079 Well, this is what's complicated is if you could remove 0:09:15.240 --> 0:09:20.040 the people back to Venezuela, it would undermine the argument 0:09:20.160 --> 0:09:23.000 that this is part of an incursion because of Venezuela 0:09:23.040 --> 0:09:27.560 didn't care and accepted the people back. Then it would 0:09:27.600 --> 0:09:30.599 be more complicated to say these are people that the 0:09:30.679 --> 0:09:34.040 Venezuelan government wants in the United States in order to 0:09:34.080 --> 0:09:37.959 destabilize America, because if they're gladly accepting them back, that's 0:09:38.040 --> 0:09:43.320 not the case. So this Elsavador thing becomes part of 0:09:43.400 --> 0:09:46.560 the analysis because what you're saying is Venezuela won't accept 0:09:46.600 --> 0:09:50.120 these people back, so we have to remove them somewhere. 0:09:50.360 --> 0:09:53.360 And so it is permitted under the immigration law to 0:09:53.400 --> 0:09:58.160 remove people to a third country. What gets complicated here 0:09:58.760 --> 0:10:03.480 is what then, Because typically when you do these removals 0:10:03.480 --> 0:10:06.520 to a third country, you just remove the people, meaning 0:10:06.559 --> 0:10:08.960 they get off the plane and they live in the 0:10:09.040 --> 0:10:13.120 third country. It's much rarer. It's not unheard of. Again, 0:10:13.160 --> 0:10:15.040 none of these things are unheard of. They're all just 0:10:15.559 --> 0:10:20.240 less common than more common that the people are detained 0:10:20.280 --> 0:10:26.079 to a third country and they're put into a detention scenario. 0:10:26.760 --> 0:10:29.760 And so the question is, well, what would be the 0:10:29.840 --> 0:10:32.640 length of time that those individuals would be subject to 0:10:32.679 --> 0:10:37.280 that detention Because depending on that then there's claims people 0:10:37.360 --> 0:10:40.400 could make back in the United States about whether that 0:10:40.440 --> 0:10:43.760 would violate a law called the Convention against Torture if 0:10:43.840 --> 0:10:48.480 you're going to detain people indefinitely for that amount of time. 0:10:48.559 --> 0:10:51.800 So this is a very fluid situation, and the courts 0:10:51.840 --> 0:10:54.079 are going to have to grapple with all of those questions. 0:10:54.240 --> 0:10:57.480 So many many questions and so few answers. Coming up 0:10:57.480 --> 0:11:00.720 next on the Bloomberg Laanchow, I'll continue this convertation with 0:11:01.080 --> 0:11:04.560 Leon Fresco of Holland and Knight, a lawsuit over Trump 0:11:04.679 --> 0:11:08.760 executive orders that threaten to deport people who express views 0:11:08.920 --> 0:11:13.040 critical of the US or Israeli government. I'm June Grosso. 0:11:13.040 --> 0:11:17.800 When you're listening to Bloomberg. President Donald Trump is invoking 0:11:17.840 --> 0:11:22.079 the Alien Enemies Act of seventeen ninety eight, a wartime 0:11:22.160 --> 0:11:26.000 authority that allows the president broader leeway on policy and 0:11:26.080 --> 0:11:30.880 executive actions, to speed up mass deportations. Trump claims that 0:11:30.960 --> 0:11:36.520 the Venezuelan gang Trendyarragois is invading the United States. The 0:11:36.600 --> 0:11:40.720 Act has only been used three times before, all during Wars. 0:11:41.080 --> 0:11:44.520 I've been talking to immigration law expert Leon Fresco, a 0:11:44.600 --> 0:11:47.680 partner at Holland and Knight. So Leon plaintiffs in a 0:11:47.760 --> 0:11:51.040 couple of cases have accused the Trump administration of not 0:11:51.520 --> 0:11:55.960 strictly following court orders or sort of slow walking their 0:11:56.000 --> 0:11:59.199 response to court orders. And now there's an indication that 0:11:59.280 --> 0:12:04.000 the Trumpet minute frstration violated a court order in deporting 0:12:04.400 --> 0:12:08.040 a doctor from Lebanon, a kidney transplant specialist who was 0:12:08.080 --> 0:12:12.520 supposed to start work at Brown University as an assistant 0:12:12.520 --> 0:12:17.120 professor of medicine, even though federal Judge Leo Sorkin issued 0:12:17.160 --> 0:12:21.000 an order that an in person hearing be scheduled for 0:12:21.240 --> 0:12:25.679 today with the doctor brought to court. So these instances 0:12:25.720 --> 0:12:28.120 seem to be piling up well. 0:12:28.160 --> 0:12:32.920 Again, without getting into the specifics of each individual case, 0:12:33.480 --> 0:12:37.400 I think it is important that when you do these operations, 0:12:37.559 --> 0:12:41.400 everybody tried to make sure that they're doing exactly what 0:12:41.440 --> 0:12:43.679 they're supposed to do, because in the long run, this 0:12:43.760 --> 0:12:47.720 will make the operations better for everyone involved, for the 0:12:47.800 --> 0:12:53.040 foreign nationals, for the government, for the courts, for the society. 0:12:53.520 --> 0:12:56.160 And so I think the key is if you have 0:12:56.360 --> 0:13:00.199 this accepted reality that there will be more enforcements, there 0:13:00.240 --> 0:13:03.760 will be more removals. This is something that was campaigned 0:13:03.760 --> 0:13:07.800 on and was elected on. The question is how can 0:13:07.880 --> 0:13:11.360 that be done in a way where it is in 0:13:11.440 --> 0:13:14.680 accordance with the way Congress wanted it to be done, 0:13:15.040 --> 0:13:17.800 with the way the courts wanted to be done. And 0:13:18.200 --> 0:13:22.280 there is no doubt that this administration can have that 0:13:22.360 --> 0:13:25.880 kind of robust enforcement, and so the question is just 0:13:26.440 --> 0:13:29.800 doing it in a way where it's beyond reproach. And 0:13:29.880 --> 0:13:33.880 so hopefully, you know there are starts to this, but 0:13:33.960 --> 0:13:37.920 hopefully everything can be done in that way. But yes, 0:13:37.960 --> 0:13:40.840 you're seeing cases where that's certainly being challenged. 0:13:41.160 --> 0:13:45.760 I thought that Venezuela had agreed to take back Venezuelans. 0:13:46.200 --> 0:13:48.680 Yes, this is where it's complicated. I think the key 0:13:48.840 --> 0:13:52.000 is are the people that Venezuela is agreeing to take 0:13:52.080 --> 0:13:56.559 back just people who are not fitting this criminal profile 0:13:57.200 --> 0:14:00.920 and instead people who are fitting a profile file where 0:14:01.200 --> 0:14:03.880 perhaps it's just someone who came on a visitor visa 0:14:04.280 --> 0:14:07.440 or a student visa and overstate that visa, and so 0:14:07.520 --> 0:14:09.920 then it's just a matter of repatriating someone like that 0:14:10.240 --> 0:14:14.120 as opposed to someone with these criminal profiles, which again, 0:14:14.320 --> 0:14:19.360 it does make it harder to invoke the Alien Enemies 0:14:19.400 --> 0:14:23.680 Act if you can deport the people back to that country, 0:14:23.760 --> 0:14:27.000 because the point is it undermines the argument that there 0:14:27.040 --> 0:14:30.160 was an incursion there if the country's accepting it. So 0:14:30.720 --> 0:14:33.120 I think if you're going to try to establish this 0:14:33.200 --> 0:14:35.720 Alien Enemies Act, what you have to say is we've 0:14:35.760 --> 0:14:39.200 asked Venezuela to take these individuals back, and they won't 0:14:39.240 --> 0:14:39.960 take them back. 0:14:40.760 --> 0:14:44.440 Is this an indication of the difficulty that the Trump 0:14:44.440 --> 0:14:49.320 administration is having deporting people because you know, as we've 0:14:49.360 --> 0:14:53.000 discussed before, during his campaign, Trump said, you know, millions 0:14:53.040 --> 0:14:55.920 of people are going to be deported, and we have 0:14:56.680 --> 0:14:59.760 Tom Holman, the Borders are saying, first they're going to 0:15:00.320 --> 0:15:04.560 people who have criminal violations, and you know, we haven't 0:15:04.600 --> 0:15:08.200 seen those mass deportations that were promised. 0:15:08.720 --> 0:15:11.520 Well, the problem is this, there's only so many people 0:15:12.120 --> 0:15:15.720 that are in the pipeline for deportation right now, and 0:15:15.760 --> 0:15:18.720 those are the people with final orders of removal, and 0:15:18.760 --> 0:15:22.800 those are the people with criminal convictions that are easy 0:15:22.880 --> 0:15:25.120 enough to get removal orders for because they don't have 0:15:25.160 --> 0:15:28.880 a way to challenge any further they're removal. That number 0:15:29.360 --> 0:15:32.240 is a finite number, and it's going to be complicated 0:15:32.280 --> 0:15:35.560 to get more than that number in a rapid fashion. 0:15:36.440 --> 0:15:40.240 And so the Alien Enemies Act is designed to try 0:15:40.280 --> 0:15:44.240 to get larger segments out of the United States without 0:15:44.280 --> 0:15:48.080 having to go through that administrative hearing process, because they 0:15:48.080 --> 0:15:50.760 don't want to have to take the months or years 0:15:50.800 --> 0:15:53.920 where this is necessary. The courts right now are taking 0:15:54.000 --> 0:15:57.880 cases for twenty thirty and twenty thirty one, and so 0:15:58.480 --> 0:16:00.800 the problem is what do you do with that situation 0:16:00.960 --> 0:16:04.280 if you're trying to increase the pipeline And there's also 0:16:04.760 --> 0:16:07.720 no funding for this, which is something they're looking to 0:16:07.800 --> 0:16:11.280 fix in the Reconciliation bills, and so from all of 0:16:11.280 --> 0:16:15.240 these perspectives, it's just a matter of I don't think 0:16:15.320 --> 0:16:18.040 anybody is going to doubt that a year or two 0:16:18.080 --> 0:16:20.720 years from now, the removal numbers will be much much 0:16:20.800 --> 0:16:24.880 higher than they are now. The question is is that 0:16:25.000 --> 0:16:28.840 going to be a patient, ramping up approach to get 0:16:28.840 --> 0:16:31.560 there or are there going to be efforts to try 0:16:31.600 --> 0:16:34.240 to get that number as high as possible as soon 0:16:34.280 --> 0:16:34.960 as possible. 0:16:36.160 --> 0:16:40.640 And we've discussed the pending case against the former Columbia 0:16:41.240 --> 0:16:46.400 graduate student where the Trump administration is using a different provision, 0:16:47.000 --> 0:16:48.640 using the Secretary of State. 0:16:49.280 --> 0:16:51.920 Right in that case, they're saying that the Secretary of 0:16:51.960 --> 0:16:55.840 State has designated the Columbia student as a person who 0:16:55.880 --> 0:17:00.800 has serious adverse consequences to the US government and needs 0:17:00.800 --> 0:17:03.320 to be deported on that basis. And this is actually 0:17:03.320 --> 0:17:05.800 similar to the Alien Enemies Act in the sense of 0:17:06.320 --> 0:17:09.840 is it something that is amenable to judicial review or not? 0:17:10.560 --> 0:17:13.439 And that's the question. This is yet another way to 0:17:13.480 --> 0:17:17.679 remove people that's intended to not have judicial review, and 0:17:17.720 --> 0:17:20.760 the question is will the court assign judicial reviews to 0:17:20.800 --> 0:17:21.280 this or not. 0:17:22.160 --> 0:17:26.120 And at Cornell University, professor and two grad students are 0:17:26.240 --> 0:17:31.520 suing Trump and DHS over executive orders that threaten to 0:17:31.560 --> 0:17:35.879 deport and prosecute those who express views critical of the 0:17:36.040 --> 0:17:40.560 US or Israeli governments. This perhaps is also an outgrowth 0:17:40.640 --> 0:17:44.640 of the arrest of that Columbia University graduate student. 0:17:45.720 --> 0:17:48.360 Right. I think what's happening is that there are students 0:17:48.359 --> 0:17:52.360 who are saying, well, rather than wait to see if 0:17:52.400 --> 0:17:56.840 I get arrested, maybe it's a better lead litigation strategy 0:17:56.840 --> 0:18:01.360 for me to proactively sue for some sort of declaratory 0:18:01.440 --> 0:18:06.040 and injunctive relief so that I can actually sort of 0:18:06.119 --> 0:18:10.920 control my own destiny in the United States. I do 0:18:11.000 --> 0:18:13.920 think this is the kind of thing where the government, 0:18:13.920 --> 0:18:16.359 the federal government is going to say, there's no jurisdiction 0:18:16.480 --> 0:18:19.920 to hear this, because you can't actually hear these things 0:18:20.280 --> 0:18:24.440 until you're placed in removal proceedings. The risk of being 0:18:24.520 --> 0:18:26.840 in removal proceedings is not enough. You actually have to 0:18:26.840 --> 0:18:31.639 be placed in removal proceedings, then make these challenges, and 0:18:31.680 --> 0:18:34.439 then if you lose, only then you can go to 0:18:34.480 --> 0:18:38.320 federal courts and appeal your removal order. That's what the 0:18:38.320 --> 0:18:41.560 federal government argues in all of these cases, and so 0:18:41.800 --> 0:18:44.760 it will have to be a departure from that precedent 0:18:45.359 --> 0:18:47.720 by the court that they're going to actually get at 0:18:47.760 --> 0:18:52.320 these issues proactively and upfront. I understand the strategy why 0:18:52.359 --> 0:18:55.800 one would want to control their own destiny, but the 0:18:55.840 --> 0:18:59.679 case law isn't exactly where these students would want it 0:18:59.720 --> 0:19:02.720 to be with regard to being able to challenge these 0:19:02.720 --> 0:19:06.560 things upfront when there isn't currently a deportation proceeding pendent. 0:19:07.040 --> 0:19:10.320 I'm not sure if the students that just sued are 0:19:10.440 --> 0:19:13.240 here on student visas or not. 0:19:13.960 --> 0:19:17.560 Well, yeah, that's not clear either. And if they're just 0:19:17.600 --> 0:19:23.040 attacking the free speech without anything related to immigration, well 0:19:23.040 --> 0:19:25.160 then that's fine. That's going to be its own lawsuit 0:19:25.440 --> 0:19:27.919 and they can attack that and that will just be 0:19:28.000 --> 0:19:30.360 decided on the merite. But if one of the pieces 0:19:30.359 --> 0:19:33.040 of relief that they're asking for is that this order 0:19:33.119 --> 0:19:37.280 cannot be used as a predicate for an immigration action, 0:19:37.520 --> 0:19:39.679 that's where I'm saying that they're going to have a 0:19:39.720 --> 0:19:42.720 tough time actually getting that part of the release. 0:19:43.080 --> 0:19:45.040 Well, some of these issues are definitely going to end 0:19:45.119 --> 0:19:48.280 up at the Supreme Court. Thanks so much, Leon. That's 0:19:48.359 --> 0:19:53.280 Leon Fresco of Honda Knight. Same sex marriage became legal 0:19:53.400 --> 0:19:56.800 nationwide in June of twenty fifteen, when the Supreme Court 0:19:56.880 --> 0:20:00.399 ruling in the case of Obergerfel v. Hodges ublish the 0:20:00.520 --> 0:20:03.920 right to same sex marriage under the Equal Protection Clause 0:20:04.000 --> 0:20:07.520 and the Due Process Clause of the Fourteenth Amendment. Same 0:20:07.560 --> 0:20:11.160 sex marriage rights were bolstered in twenty twenty two when 0:20:11.200 --> 0:20:15.919 Congress passed the Respect for Marriage Act, but conservative legislators 0:20:15.960 --> 0:20:20.480 are increasingly speaking out against that landmark ruling, and this year, 0:20:20.600 --> 0:20:24.720 legislatures in a handful of states have introduced measures urging 0:20:24.760 --> 0:20:29.439 the Supreme Court to overturn Obergerfeld. In North Dakota, the 0:20:29.480 --> 0:20:32.600 House passed such a resolution, but it failed to pass 0:20:32.640 --> 0:20:36.960 in the Senate last Thursday. These resolutions have no legal weight, 0:20:37.320 --> 0:20:41.200 but they do signal the opinions of the legislators. Add 0:20:41.240 --> 0:20:44.840 to that the fact that two conservative Supreme Court Justices, 0:20:45.200 --> 0:20:49.560 Clarence Thomas and Samuel Alito, are on record as wanting 0:20:49.640 --> 0:20:53.560 to revisit the Obergerfelt case, joining me his family law 0:20:53.560 --> 0:20:57.879 attorney Susan Bender, a partner at benderin Crane. So we 0:20:57.880 --> 0:21:00.840 can put this on too context explain in the basis 0:21:01.000 --> 0:21:03.760 of the Supreme Court's ruling in know Bergerfeld. 0:21:04.160 --> 0:21:05.600 Well, first, you know, there are a couple of things 0:21:05.600 --> 0:21:07.960 you have to look at here. Obergeffeld didn't come out 0:21:08.000 --> 0:21:13.600 of the woodwork. Aubergeffel was in twenty fifteen, and Obergeffel 0:21:14.200 --> 0:21:17.760 on the heels of United statesy Windsor said that a 0:21:18.200 --> 0:21:21.160 state is required to give a license between two people 0:21:21.160 --> 0:21:24.240 of the same sex. That's a very big deal, right, 0:21:24.520 --> 0:21:27.240 because at no point before that did the United States 0:21:27.440 --> 0:21:30.119 Supreme Court say that you got to give a license 0:21:30.160 --> 0:21:33.439 to two people the same sex. So that was Obergetfel 0:21:33.480 --> 0:21:38.280 in twenty fifteen. Since twenty and fifteen, states around the country, 0:21:38.600 --> 0:21:40.720 some states have been finding that some states are okay 0:21:40.800 --> 0:21:43.119 with it. In New York State is totally okay with it. Well, 0:21:43.200 --> 0:21:45.680 New York State in twenty eleven came out with a 0:21:45.720 --> 0:21:48.600 statute which says, yep, you got to give license to 0:21:48.640 --> 0:21:51.560 same sex couples in New York State, which is was 0:21:51.560 --> 0:21:53.840 a very big deal in twenty eleven. Let me let 0:21:53.880 --> 0:21:59.000 me assure you after years of discrimination against non heterosexuals. 0:21:59.440 --> 0:22:01.080 It was a a landslide decision. 0:22:02.880 --> 0:22:08.240 Justices Clarence Thomas and Samuel Alito have openly expressed that 0:22:08.280 --> 0:22:13.520 they would like to revisit the Obergerfeld decision, and, as 0:22:13.840 --> 0:22:18.480 Thomas said, in the case that overturned the constitutional right 0:22:18.560 --> 0:22:21.399 to abortion the Dobbs case. He said, as I have 0:22:21.480 --> 0:22:26.399 previously explained, substantive due process is an oxymoron that lacks 0:22:26.440 --> 0:22:29.600 any basis in the Constitution. He called it a legal 0:22:29.600 --> 0:22:34.080 fiction that is particularly dangerous. Explain what substantive due process 0:22:34.320 --> 0:22:37.040 is and how it's important in these decisions. 0:22:37.440 --> 0:22:40.919 He wrote a concurring opinion, and he specifically said, he 0:22:41.600 --> 0:22:46.320 very clearly said that it's time to quote correct the error, okay, 0:22:46.560 --> 0:22:50.359 and the error is that, as you noted, that substantive 0:22:50.400 --> 0:22:54.119 process precedents are demonstra erroneous because there is nothing in 0:22:54.160 --> 0:22:57.960 the Constitution. There's nothing in the Constitution according to Alito 0:22:58.119 --> 0:23:02.560 and Thomas, which gave the court the right to expand 0:23:02.840 --> 0:23:06.280 what would they call fundamental rights. Right to marry, right 0:23:06.359 --> 0:23:10.200 to an abortion, right to interracial relationships. I mean, these 0:23:10.240 --> 0:23:14.359 are all under the number of various provisions of the 0:23:14.359 --> 0:23:18.000 fourteenth Amendment. And if it was up to Thomas and Alito, 0:23:18.040 --> 0:23:20.480 there would be no subject of due process, which means 0:23:21.760 --> 0:23:26.879 contraception under Griswold, right to marry, livings against Virginia. And 0:23:26.960 --> 0:23:31.280 then we have Obergefel and all the rights that many 0:23:31.320 --> 0:23:34.200 of us considered to be our fundamental due process rights. 0:23:35.040 --> 0:23:38.480 Thomas is saying it's not fundamental and it's not due process. 0:23:38.600 --> 0:23:40.239 You should go to the states and work it out 0:23:40.280 --> 0:23:40.840 of the states. 0:23:42.000 --> 0:23:45.639 Are people concerned that there are more justices on the 0:23:45.680 --> 0:23:50.040 Supreme Court that might want to revisit Obergefeld. 0:23:50.440 --> 0:23:52.600 So now getting to the writing on the wall, and 0:23:53.119 --> 0:23:55.920 this is an important point. As you noted in Dobbs, 0:23:56.560 --> 0:23:59.720 Thomas said that it's time to correct the error. It 0:23:59.800 --> 0:24:04.480 is clear to many of us who watch the Court 0:24:04.760 --> 0:24:09.359 that there will come a case percolating, probably procolating right 0:24:09.440 --> 0:24:12.520 now in the States where Thomas and Alito are going 0:24:12.560 --> 0:24:16.840 to have the opportunity to overturn substanitute process cases, and 0:24:16.880 --> 0:24:22.560