WEBVTT - SEC's Powers Curbed by Supreme Court 0:00:00.560 --> 0:00:05.320 This is Bloomberg Law, with June Grasso from Bloomberg Radio. 0:00:05.640 --> 0:00:07.840 In an eight to one decision this week, the Supreme 0:00:07.840 --> 0:00:10.840 Court has blunted one of the Security and Exchange Commission's 0:00:10.880 --> 0:00:14.280 most powerful legal tools for recouping billions of dollars and 0:00:14.400 --> 0:00:18.600 illegal profits from wrongdoers each year. The majority opinion by 0:00:18.640 --> 0:00:22.279 Justice Sonya so to mayor preserve the SEC's power to 0:00:22.320 --> 0:00:25.640 seek discorchement in federal court as long as the money 0:00:25.720 --> 0:00:29.280 doesn't exceed the wrongdoer's net profits and is used to 0:00:29.360 --> 0:00:33.680 reimburse to frauded investors, something so to major question during 0:00:33.680 --> 0:00:37.479 the oral arguments. If the SEC got the money, it 0:00:37.560 --> 0:00:40.960 could then spend it on protecting investors. But if the 0:00:41.000 --> 0:00:43.520 Treasury is getting it and I know you're gonna save 0:00:43.560 --> 0:00:46.919 money is fungiable. But if the Treasury is getting it, 0:00:47.040 --> 0:00:51.640 we don't really know if it's being used to help investor. 0:00:51.920 --> 0:00:54.680 And in this case, a California couple was ordered to 0:00:54.720 --> 0:00:58.440 pay twenty seven million dollars, well beyond the eight million 0:00:58.440 --> 0:01:01.520 the trial judge found they'd from their scheme to defraud 0:01:01.560 --> 0:01:05.040 investors in a cancer treatment center. Joining me is Jill Fish, 0:01:05.240 --> 0:01:08.480 a professor of business law at the University of Pennsylvania 0:01:08.560 --> 0:01:12.039 Law School, Jill. Both the SEC and the couple appealing 0:01:12.200 --> 0:01:15.039 said they were pleased with the decision. So who really 0:01:15.080 --> 0:01:17.520 won here? I could say neither one or I could 0:01:17.520 --> 0:01:20.679 say both one, and either answer would be right, because 0:01:20.680 --> 0:01:23.880 what the Supreme Court did actually is something a little 0:01:23.880 --> 0:01:27.319 bit different from what either party was looking for. And 0:01:27.560 --> 0:01:31.800 I think the Supreme Court's goal was to rein in 0:01:32.280 --> 0:01:36.280 the scope of the SEC's power to seek disgorgement. But 0:01:36.360 --> 0:01:41.080 it's certainly preserved disgorgement as an equitable remedy. So explain 0:01:41.280 --> 0:01:46.000 what equitable remedy means and how that term and the 0:01:46.080 --> 0:01:50.840 concept played in here. So basically, the SEC can seek 0:01:51.080 --> 0:01:55.560 a variety of different kinds of relief. One classic kind 0:01:55.600 --> 0:01:59.120 of relief is imposing a fine on a party that's 0:01:59.160 --> 0:02:03.880 violated the sex charity's laws. Disgorgement is different. Disgorgement is 0:02:03.960 --> 0:02:08.760 usually understood as giving up or giving back your ill 0:02:08.840 --> 0:02:13.440 gotten gains or your unfair profits, whatever profits the parties 0:02:13.480 --> 0:02:16.720 in this case got. The petitioners in this case, we're 0:02:16.760 --> 0:02:21.480 seeking to get foreign nationals to invest in a so 0:02:21.560 --> 0:02:25.480 called cancer treatment center. So they raised a lot of money, 0:02:25.560 --> 0:02:28.160 a lot of money that was not invested in the 0:02:28.200 --> 0:02:31.560 cancer treatment center. And so what the SEC sought in 0:02:31.600 --> 0:02:35.160 this case, in addition to a fine, was to recover 0:02:35.600 --> 0:02:40.040 those unjust profits. And it's the disgorgement of those unjust 0:02:40.120 --> 0:02:43.760 profits that's the remedy that was contested that the Supreme 0:02:43.760 --> 0:02:47.920 Court was evaluating in this case. Justice Sonya Sotomayor wrote 0:02:47.919 --> 0:02:51.040 the majority opinion. Did she give a sort of formula 0:02:51.240 --> 0:02:55.800 that the SEC has to follow in disgorgement cases? Yeah? So. 0:02:56.160 --> 0:03:00.440 Justice Sotomayor's opinion sets out three guide law mines for 0:03:00.480 --> 0:03:05.800 the SEC when it's seeking disgorgement. So the first guideline 0:03:06.160 --> 0:03:11.440 is disgorgement has to be limited to a party's net profits. 0:03:11.800 --> 0:03:15.119 If a party raises a lot of money but has 0:03:15.240 --> 0:03:19.720 legitimate business expenses, is actually sending that money to build 0:03:19.720 --> 0:03:23.079 a cancer treatment center, to purchase equipment and things like that, 0:03:23.480 --> 0:03:27.679 those aren't net profits. That money doesn't have to be disgorged, 0:03:27.880 --> 0:03:31.320 So it's a limitation on the total amount of disgorgement. 0:03:31.919 --> 0:03:36.280 The second limit that the opinion imposes is disgorgement is 0:03:36.320 --> 0:03:40.800 supposed to be like restitution. It's supposed to provide money 0:03:40.840 --> 0:03:45.120 that's going to benefit the defrauded investors. Now, the opinion 0:03:45.160 --> 0:03:50.120 doesn't explain exactly how that money benefits the investors. It 0:03:50.160 --> 0:03:53.440 doesn't actually say the SEC has to give back the 0:03:53.480 --> 0:03:57.440 money or identify everyone who's been defrauded, track them down, 0:03:57.720 --> 0:03:59.400 figure out a way to put the money in their 0:03:59.440 --> 0:04:03.000 bank account, because that issue wasn't before the court. But 0:04:03.240 --> 0:04:07.480 the benefit for defrauded investors is a key limitation. The 0:04:07.560 --> 0:04:13.840 third limitation is disgorgement is limited to an actual party's profit. 0:04:14.240 --> 0:04:18.280 You can't recover disgorgement from one defendant based on the 0:04:18.320 --> 0:04:22.200 wrongdoing or the profits that were obtained by a second defendant. 0:04:22.520 --> 0:04:27.120 Last year, the SEC obtained three point two billion dollars 0:04:27.160 --> 0:04:32.040 in disgorgement. Is this decision going to limit the amount 0:04:32.160 --> 0:04:37.000 that the SEC can get next year? It's definitely going 0:04:37.040 --> 0:04:40.039 to impose some limits for the reasons that I said. 0:04:40.480 --> 0:04:44.359 So one limit is net profits obviously is going to 0:04:44.400 --> 0:04:47.839 be less than growth profits. If somebody raises a billion 0:04:47.880 --> 0:04:52.360 dollars but has some legitimate business expenses, disgorgement will be 0:04:52.480 --> 0:04:55.599 for something less than a billion. So that's one limit. 0:04:55.800 --> 0:05:00.120 Second limit being able to obtain disgorgement only from the 0:05:00.200 --> 0:05:04.480 individual party that has the wrongful profits. The SEC won't 0:05:04.480 --> 0:05:08.159 be able to get disgorgement from defended X based on 0:05:08.240 --> 0:05:11.680 the profits obtained by defendant Y. So if defendant Y 0:05:11.839 --> 0:05:15.159 is bankrupt, if defendant Y is out of the country 0:05:15.279 --> 0:05:18.520 or unavailable, that again is going to limit the scope 0:05:18.680 --> 0:05:21.800 of what the SEC can recover and will it make 0:05:21.839 --> 0:05:26.920 it more complicated for the SEC to prosecute these cases 0:05:27.200 --> 0:05:30.280 at the district court? Well, I wouldn't say more complicated 0:05:30.320 --> 0:05:34.040 to prosecute the cases. The SEC can always seek disgorgement. 0:05:34.120 --> 0:05:38.279 The SEC also can seek civil finds. Interestingly enough, the 0:05:38.440 --> 0:05:42.600 SEC can also seek disgorgement in an administrative proceeding, and 0:05:42.640 --> 0:05:46.080 we can talk about that separately. So what the opinion 0:05:46.160 --> 0:05:49.839 will do is make it more difficult for the SEC 0:05:50.160 --> 0:05:54.279 to recover all of the money that it's recovered in 0:05:54.279 --> 0:05:56.680 the past. So it's going to be a limitation on 0:05:56.760 --> 0:06:00.040 the amount of the SEC's recovery, but not one that 0:06:00.160 --> 0:06:02.760 the SEC is able to recover it all or whether 0:06:02.800 --> 0:06:05.760 the SEC is able to prove its case. So why 0:06:05.800 --> 0:06:09.200 did Justice Thomas dissent and say he would have barred 0:06:09.200 --> 0:06:12.839 the SEC from seeking disgorgement at all in federal court? 0:06:14.000 --> 0:06:19.159 In a nutshell, Justice Thomas's view was that disgorgement is 0:06:19.480 --> 0:06:24.920 a made up concept, a recent innovation in terms of 0:06:24.960 --> 0:06:28.200 a type of remedy, that it was not part of 0:06:28.240 --> 0:06:34.320 a court traditional equitable powers, and therefore the disgorgement remedy 0:06:34.440 --> 0:06:38.960 doesn't fall within the scope of the SEC's statutory authority. 0:06:39.440 --> 0:06:42.880 So Justice Thomas's opinion is based on the text of 0:06:42.920 --> 0:06:46.960 the statute, which is consistent with his standard approach to 0:06:47.080 --> 0:06:51.800 stutory interpretation, and basically Justice Thomas says the SEC went 0:06:51.839 --> 0:06:56.280 beyond what the statute empowered it to do. You mentioned 0:06:56.320 --> 0:07:02.159 that the SEC can also seek disgorgement to administrative proceedings. 0:07:02.279 --> 0:07:04.159 How does it decide whether to go to court or 0:07:04.240 --> 0:07:09.120 whether to go through administrative proceedings. Well, that's actually been 0:07:09.560 --> 0:07:14.960 an ongoing policy debate. So an administrative proceeding is a 0:07:15.080 --> 0:07:20.400 proceeding before an administrative law judge from actually an SEC employee, 0:07:20.440 --> 0:07:23.400 not an Article three judge, not a separate branch of 0:07:23.480 --> 0:07:28.360 the federal government. And so the SEC has been criticized 0:07:28.640 --> 0:07:33.160 for bringing some cases as administrative proceedings rather than going 0:07:33.200 --> 0:07:37.640 to court. And so this case has the potentially anomalous 0:07:37.720 --> 0:07:41.840 effects of encouraging the SEC, at least in some cases 0:07:42.200 --> 0:07:47.440 to use administrative proceedings instead of civil enforcement actions instead 0:07:47.480 --> 0:07:51.800 of actions in federal court. And of course the sec 0:07:52.120 --> 0:07:57.320 is authority to seek disgorgement in administrative proceedings is clear, 0:07:57.680 --> 0:08:01.440 It's in the statute. So a question that a subsequent 0:08:01.520 --> 0:08:04.080 court is going to have to deal with is whether 0:08:04.120 --> 0:08:08.400 the limitations and lou the limitations of Justice Stamer's opinion 0:08:08.680 --> 0:08:12.280 are going to apply in administrative proceedings or not. It 0:08:12.280 --> 0:08:15.080 would be kind of ironic if there were two different 0:08:15.120 --> 0:08:19.680 types or two different analyzes of disgorgements depending on the forum. 0:08:20.360 --> 0:08:24.160 Why would the SEC ever choose to go to court 0:08:24.840 --> 0:08:27.600 when they can go to an administrative law judge in 0:08:27.640 --> 0:08:31.840 their own bailuwith So that depends on a variety of 0:08:31.880 --> 0:08:36.080 different factors. The SEC had been, as I said, criticized 0:08:36.440 --> 0:08:41.200 for bringing some cases in administrative proceedings. People said that 0:08:41.360 --> 0:08:44.600 the SEC was sort of taking advantage of home court 0:08:44.640 --> 0:08:48.240 advantage and that the proceedings were not subject to the 0:08:48.320 --> 0:08:51.600 same level of protection for dependants. You don't have the 0:08:51.679 --> 0:08:56.440 same discovery process in an administrative proceedings. They occur much 0:08:56.480 --> 0:08:59.080 more quickly and so forth. But there are a lot 0:08:59.080 --> 0:09:02.920 of factors that way into the SEC's choice of which 0:09:03.080 --> 0:09:07.239 avenue to pursue and the type of relief that's available 0:09:07.480 --> 0:09:11.920 probably isn't the best factor to drive that decision. Will 0:09:12.000 --> 0:09:15.800 this affect any other agencies? I read that this decision 0:09:15.880 --> 0:09:20.000 might affect the ftc uh. That's what I read as well. 0:09:20.040 --> 0:09:23.520 I'm not an expert on the SEC, but my understanding 0:09:23.800 --> 0:09:27.720 is that this decision does have consequences in other areas. 0:09:27.760 --> 0:09:30.360 Antitrust is one of those areas. So I think it's 0:09:30.400 --> 0:09:33.880 important beyond this federal securities laws, How has the Court 0:09:34.520 --> 0:09:39.680 in recent years been policing the SEC or not policing 0:09:39.720 --> 0:09:45.400 the SEC. The Court has been policing the SEC pretty carefully. 0:09:45.440 --> 0:09:49.080 There have been a number of areas in which the 0:09:49.280 --> 0:09:54.840 Court has suggested that the SEC is too aggressive, that 0:09:54.960 --> 0:09:59.120 the SEC is acting beyond the scope of its statutory authority, 0:09:59.559 --> 0:10:03.480 and the Court has cautioned the SEC to sort of 0:10:03.520 --> 0:10:07.319 pull things back a little bit. Can the SEC put 0:10:07.520 --> 0:10:15.160 disgorged profits into the treasuries coffers after this decision? The 0:10:15.200 --> 0:10:18.480 answer to that is, we don't know. That's a question 0:10:18.920 --> 0:10:24.040 the Supreme Court expressly declined to answer because that issue 0:10:24.120 --> 0:10:28.640 wasn't really presented to it. The SEC hadn't presented to 0:10:28.720 --> 0:10:31.960 the court a plan of distribution, so the court said, 0:10:31.960 --> 0:10:33.880 we're going to leave that issue for the lower court. 0:10:34.320 --> 0:10:37.640 So it's not clear. There are certainly some cases in 0:10:37.679 --> 0:10:42.040 which distributing the funds to defrauded investors is going to 0:10:42.040 --> 0:10:46.160 be expensive or difficult. It may be the case to 0:10:46.240 --> 0:10:49.440 the lower court finds it acceptable if the money goes 0:10:49.480 --> 0:10:53.320 into some general pool that's available to make investors hole 0:10:53.840 --> 0:10:57.040 in fraud cases overall, But we don't know the answer 0:10:57.040 --> 0:11:00.280 to that question. So now they've sent this case Act 0:11:00.360 --> 0:11:03.200 to the District Court, and the district Court will apply 0:11:03.480 --> 0:11:07.160 what the Supreme Court has said here. Yes, the district 0:11:07.160 --> 0:11:12.520 Court did not calculate the disgorgement remedy based on net profits. 0:11:12.559 --> 0:11:15.360 So at a minimum, the district Court is going to 0:11:15.440 --> 0:11:19.920 have to look at the expenses that the defendants claim 0:11:20.240 --> 0:11:24.440 as legitimate expenses and subtract any legitimate expenses from the 0:11:24.480 --> 0:11:27.200 amount of us disgorgement. So that's one change that we 0:11:27.240 --> 0:11:30.280 know is going to happen. Beyond that, the sec is 0:11:30.280 --> 0:11:32.200 going to have to come up with a plan what 0:11:32.320 --> 0:11:35.640 it intends to do with the money. If it's possible 0:11:35.679 --> 0:11:39.000 to distribute the money in this case, to foreign nationals. 0:11:39.040 --> 0:11:41.440 I guess the SEC will put forth some sort of plan, 0:11:41.920 --> 0:11:45.280 or the SEC will propose something else like a segregated 0:11:45.320 --> 0:11:48.880 fund and investor compensation fund, which may or may not 0:11:48.920 --> 0:11:51.880 pass scrutiny. The one thing I did want to say 0:11:52.000 --> 0:11:57.920 is the analysis in justice Sodomoyer's opinion draws very heavily 0:11:58.080 --> 0:12:01.319 on an aniquest brief that was filed by a law professor, 0:12:01.800 --> 0:12:06.000 Professor Doug Lacock uh Laycock, Professor Doug Laycock of the 0:12:06.040 --> 0:12:09.319 University of Virginia. And if you look at the reasoning 0:12:09.360 --> 0:12:14.480 in this opinion, the analysis of disgorgement as an equitable 0:12:14.520 --> 0:12:18.600 remedy and what that means, and the precise limitations that 0:12:18.840 --> 0:12:22.640 just a sutor puts on the disgorgement remedy, it's very 0:12:22.679 --> 0:12:25.199 influenced by the reasoning and that and make it's brief. 0:12:25.480 --> 0:12:29.559 So I just wanted to uh flag that UM showing 0:12:29.640 --> 0:12:35.240 both I think the importance of understanding uh HIT the 0:12:35.320 --> 0:12:40.439 historical basis of remedial relief and how influential and amicus 0:12:40.480 --> 0:12:42.560 brief could be in this case because the arguments that 0:12:42.600 --> 0:12:45.320 are in this opinion, we're not arguments that were raised 0:12:45.320 --> 0:12:48.160 by either of the parties. Finally, Joe, what was the 0:12:48.240 --> 0:12:52.120 general reaction to this decision? I do think that everybody 0:12:52.200 --> 0:12:55.320 looked at this opinion with a sigh of relief, because 0:12:55.360 --> 0:12:59.400 even though the opinion imposes some tactical requirements on disgorgements, 0:12:59.600 --> 0:13:03.560 it does and eliminate discouragement. It doesn't say discouragement is 0:13:03.640 --> 0:13:07.120 not an equitable remedy, and it doesn't really limit the 0:13:07.360 --> 0:13:12.400 SEC's power to seek equitable relief. And from an enforcement perspective, 0:13:12.720 --> 0:13:17.240 the SEC's power to do that is tremendously important. Thanks Jill. 0:13:17.679 --> 0:13:21.320 That's Jill Fish, professor at the University of Pennsylvania School 0:13:21.320 --> 0:13:25.439 of Law. In a seven to two decision on Thursday, 0:13:25.679 --> 0:13:29.680 the Supreme Court reinforced the Trump administration's ability to quickly 0:13:29.720 --> 0:13:33.680 deport people who enter the country without documentation. Joining me 0:13:33.760 --> 0:13:36.920 is Leon Fresco, a partner at Hollandon Night formerly the 0:13:36.960 --> 0:13:40.720 head of the Justice Department's Office of Immigration Litigation. Leon 0:13:40.840 --> 0:13:44.040 explained what the Court did here. So, what the Supreme 0:13:44.080 --> 0:13:46.880 Court has said is that during the process that is 0:13:46.920 --> 0:13:51.040 known as expedited removal, which is a program that Congress 0:13:51.040 --> 0:13:55.600 past that said, if people from outside the country arrived 0:13:55.640 --> 0:13:59.280 in the United States without any paperwork, they could be 0:13:59.360 --> 0:14:03.840 summarily deported back to where they originally arrived from. What 0:14:03.960 --> 0:14:06.480 the Supreme Court said is that in the situations where 0:14:06.480 --> 0:14:10.840 the people who are arriving claim asylum, there isn't review 0:14:11.160 --> 0:14:14.960 that is available in the federal court for those denials 0:14:15.040 --> 0:14:19.480 that the CDP and men the immigration court is doing 0:14:19.640 --> 0:14:23.000 on those asylum claims. So what happens is from now on, 0:14:23.280 --> 0:14:26.360 there will only be a CBP slash U S c 0:14:26.480 --> 0:14:29.400 I S officer who makes some initial screening as to 0:14:29.440 --> 0:14:32.840 whether the asylum claim is credible, and if that's denied, 0:14:32.880 --> 0:14:37.040 there's an immigration judge who makes a final administrative determination 0:14:37.080 --> 0:14:40.240 and that's it. There is no federal court review as 0:14:40.280 --> 0:14:43.960 to whether those decisions were incorrect and whether that person 0:14:44.000 --> 0:14:47.800 should be allowed to apply for asylum. The credible fear interview, 0:14:47.880 --> 0:14:52.000 that first interview isn't that a very low bar for 0:14:52.320 --> 0:14:55.920 most immigrants. It is intended by the statute to be 0:14:55.960 --> 0:14:58.560 a low bar. The way it works is this, in 0:14:58.680 --> 0:15:01.520 order to simply get a asylum to win your case, 0:15:02.000 --> 0:15:05.720 you have to have what's known as a ten percent 0:15:05.920 --> 0:15:09.400 chance that you will be persecuted in your home country 0:15:09.440 --> 0:15:13.120 on the basis of your race, religion, national origin, political opinion, 0:15:13.240 --> 0:15:16.360 or social group. It's called well founded fear, and that's 0:15:16.360 --> 0:15:19.760 ten percent. In order to get credible fear, which is 0:15:19.800 --> 0:15:22.800 the upfront initial screening that allows you to remain in 0:15:22.840 --> 0:15:26.840 the country while you're asylum case despending, you have to 0:15:26.880 --> 0:15:31.600 have a significant possibility of having a ten percent chance. 0:15:32.080 --> 0:15:35.960 So it's considered a very low threshold, and in the 0:15:35.960 --> 0:15:41.120 Obama administration there was something like people would clear the 0:15:41.240 --> 0:15:44.400 credible fear screening. That's gone down to the mid eighties 0:15:44.720 --> 0:15:48.160 in the Trump administration, and so there's a belief that 0:15:48.320 --> 0:15:51.560 maybe those screenings are being done in a way that 0:15:51.760 --> 0:15:56.080 is more stringent and hence need more federal review. But 0:15:56.280 --> 0:15:59.920 that argument obviously did not prevail with the Supreme Court. 0:16:00.280 --> 0:16:04.160 The reasoning of the seven justices in the majority was split. 0:16:04.720 --> 0:16:07.640 Explain that split, well, there were two issues that were raised, 0:16:08.200 --> 0:16:11.840 and what the two concurring justices Brian and Ginsburg, who 0:16:11.920 --> 0:16:14.760 usually vote with the liberals, said is we don't need 0:16:14.800 --> 0:16:19.080 to resolve the issue of the level of rights that 0:16:19.240 --> 0:16:22.400 people who crossed the border illegally have in the country. 0:16:22.720 --> 0:16:26.280 What we can simply say is that the kind of 0:16:26.400 --> 0:16:29.760 review that the people in this case were asking for 0:16:30.680 --> 0:16:34.840 was review of factual questions, and that kind of review 0:16:35.000 --> 0:16:37.960 is not available in what's called the Avias court of 0:16:38.080 --> 0:16:42.000 jurisdiction because habeas corpus jurisdiction is about whether you are 0:16:42.200 --> 0:16:47.800 legally held in custody without your legal rights. It's about 0:16:47.800 --> 0:16:51.320 whether the law was improperly just in your case. So 0:16:51.400 --> 0:16:54.160 they would have limited it to that, but the five 0:16:54.280 --> 0:16:59.600 conservative justices went further and they said, not only is 0:16:59.680 --> 0:17:03.320 that the issue, but the issue more largely is people 0:17:03.400 --> 0:17:08.040 who want relief from removal are not trying to actually 0:17:08.080 --> 0:17:11.840 get out of custody. They want something different than getting 0:17:11.840 --> 0:17:15.359 out of custody. They want release from removal. So those 0:17:15.400 --> 0:17:19.560 people can never come to court with habeas corpus jurisdiction, 0:17:19.680 --> 0:17:24.240 meaning you're asking the government to release you. Because the 0:17:24.240 --> 0:17:27.160 theory was, even though not being released from physical custody, 0:17:27.400 --> 0:17:30.080 I still am asking to be released from immigration custody, 0:17:30.080 --> 0:17:32.800 which is the custody that I has to deport me. 0:17:33.160 --> 0:17:36.560 And they said, no, no, no, that's not cognizable in 0:17:36.840 --> 0:17:39.840 habeas corpus jurisdiction, so you can't even make that claim. 0:17:40.040 --> 0:17:42.920 And then to add more to this, just as a leado, 0:17:43.040 --> 0:17:45.480 he decided an issue that didn't need to be decided, 0:17:45.640 --> 0:17:49.360 and he said that people who cross the border illegally 0:17:49.400 --> 0:17:52.800 have no due process right. They're just like people who 0:17:53.160 --> 0:17:56.520 are outside the country. So you don't get any special 0:17:57.040 --> 0:18:00.680 increased level of right if you cross the border. Two 0:18:00.720 --> 0:18:05.480 justices dissented, Justices Sonya Soto Mayor and Elena Kagan. They're 0:18:05.520 --> 0:18:09.960 the senses that they view that these rights were always 0:18:10.000 --> 0:18:14.200 allowed in the sense that habeas again needs that your 0:18:14.320 --> 0:18:17.080 body is in the custody of the government, whether it 0:18:17.200 --> 0:18:20.919 be for physical custody or removal custody purposes, and that 0:18:21.080 --> 0:18:25.399 even though this didn't exist at the time of the founding, 0:18:26.119 --> 0:18:29.359 that doesn't matter because there was no emmigration law at 0:18:29.359 --> 0:18:31.800 the time of the founding. If the founders have had 0:18:32.040 --> 0:18:34.320 some knowledge as to what we'd be doing with the 0:18:34.320 --> 0:18:37.760 immigration law, they would have allowed this kind of hadea 0:18:37.800 --> 0:18:40.760 of corpus jurisdiction. Can you see the difference between this 0:18:40.880 --> 0:18:44.639 case and the data case that the administration lost? Sure, 0:18:44.720 --> 0:18:46.919 I think this is again the themes we've been talking 0:18:46.920 --> 0:18:49.200 about in the past. If you're going to really try 0:18:49.240 --> 0:18:52.280 to make a way to carve your way through these things, 0:18:52.359 --> 0:18:55.080 you continue to see two things going on. At the 0:18:55.119 --> 0:18:58.400 same time, people who are here who have some interest 0:18:58.440 --> 0:19:01.720 in America seemed to get treated by the courts better 0:19:02.160 --> 0:19:04.159 than people who are either not here and have been 0:19:04.280 --> 0:19:07.920 travel band or people who have just barely arrived seconds ago. 0:19:08.520 --> 0:19:11.720 And that thread continues to seem to work its way 0:19:11.720 --> 0:19:15.800 through the courts in all of these Thanks. That's Leon Cresco, 0:19:15.920 --> 0:19:18.359 a partner at Hollan didn't night. I'm John Basso, and 0:19:18.440 --> 0:19:19.280 this is Jim Burg.