WEBVTT - IVF Threatened by Unprecedented Alabama Decision 0:00:03.200 --> 0:00:07.920 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:10.400 --> 0:00:13.920 What I'm really concerned about though, is could we legally 0:00:13.960 --> 0:00:15.360 retrieve our embryos. 0:00:16.440 --> 0:00:20.920 There's mostly concern, there's worry, there's some anger. 0:00:26.600 --> 0:00:31.400 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:32.800 --> 0:00:36.320 What I'm really concerned about though, is could we legally 0:00:36.360 --> 0:00:42.519 retrieve our embryos. There's mostly concern, there's worry, there's some 0:00:42.720 --> 0:00:46.800 anger as patients and physicians want to be able to 0:00:46.800 --> 0:00:50.400 make these decisions together, collaboratively and not have these decisions 0:00:50.400 --> 0:00:52.360 made for us and without our input. 0:00:52.920 --> 0:00:56.560 Doctors and IVF patients are caught up in a mixture 0:00:56.560 --> 0:01:00.240 of emotions and a lot of confusion after the Alibamma 0:01:00.320 --> 0:01:06.360 Supreme Court's unprecedented decision that frozen embryos are children. The 0:01:06.440 --> 0:01:10.280 decision means doctors like Mamy MacLean could now face criminal 0:01:10.400 --> 0:01:15.119 charges or punitive damages if they discard unused frozen embryos, 0:01:15.280 --> 0:01:18.160 which is a normal part of the iv process. 0:01:18.480 --> 0:01:21.160 This ruling is so incomplete, and it leaves those of 0:01:21.200 --> 0:01:23.880 us who are sitting face to face with patients just 0:01:23.920 --> 0:01:26.319 with the inability to comment on what is safe and 0:01:26.360 --> 0:01:27.800 what is legal for them Right. 0:01:27.680 --> 0:01:32.840 Now, Alabama's largest hospital and several fertility clinics are pausing 0:01:32.920 --> 0:01:37.920 in vitro fertilization treatments because of legal concerns, and patients 0:01:38.040 --> 0:01:41.160 like Matt Clary and his wife are in limbo. They'd 0:01:41.200 --> 0:01:44.120 plan to go through another round of IVF this summer, 0:01:44.400 --> 0:01:47.160 but are now unsure whether it will be available. 0:01:47.560 --> 0:01:51.320 Nobody has the answers of how do you navigate this? 0:01:51.920 --> 0:01:56.120 Joining me is healthcare attorney Harry Nelson of Nelson Hardiman Harry. 0:01:56.400 --> 0:01:59.920 The Alabama Supreme Court is the first court to rule 0:02:00.000 --> 0:02:05.080 so that frozen embryos are children, citing anti abortion language 0:02:05.080 --> 0:02:08.880 in Alabama's constitution. But the facts of this case are 0:02:08.960 --> 0:02:09.639 rather odd. 0:02:10.240 --> 0:02:13.960 It appears that this decision was the result of a 0:02:14.080 --> 0:02:17.679 very calculated case. The case involved two families who had 0:02:17.720 --> 0:02:21.320 had children through a fertility center and had additional embryos 0:02:21.480 --> 0:02:26.079 stored at the center. Those embryos were destroyed in a 0:02:26.160 --> 0:02:30.680 bizarre incident where another patient apparently walked into an unauthorized area, 0:02:30.800 --> 0:02:34.040 opened a freezer, pulled out the storage container with the embryos. 0:02:34.120 --> 0:02:38.640 The suffered immediate freezer burn and dropped the container, resulting 0:02:38.680 --> 0:02:41.720 in the destruction, and so it doesn't seem obvious at 0:02:41.800 --> 0:02:45.119 least to me that the natural response of someone who 0:02:45.480 --> 0:02:48.560 had hoped to use an embryo for a future in 0:02:48.680 --> 0:02:52.320 vitro fertilization would be, you know, to sue for wrongful 0:02:52.360 --> 0:02:55.400 death of a minor. Right, yea, certainly people would be aggrieved. 0:02:55.440 --> 0:02:58.200 But it certainly seems there's a calculated decision to bring 0:02:58.280 --> 0:03:01.959 a case under this law. Law and challenged the destruction 0:03:02.160 --> 0:03:05.520 to use this incident to test whether the loss of 0:03:05.560 --> 0:03:09.160 an embryo in this manner could somehow be considered the 0:03:09.200 --> 0:03:12.679 same as the death of a child. So that was 0:03:12.720 --> 0:03:14.880 the legal theory they went forward on, and they lost 0:03:15.120 --> 0:03:18.359 in the lower court, And then the Alabama Supreme Court 0:03:18.480 --> 0:03:22.600 surprised most people by agreeing with the theory that the 0:03:22.680 --> 0:03:26.200 parent who lost these embryos alleged, or that their lawyer's alleged, 0:03:26.280 --> 0:03:29.840 which was that the accidental destruction of the embryos in 0:03:29.880 --> 0:03:33.040 an embryo lab, I mean, a fertility center was the 0:03:33.200 --> 0:03:38.600 legal equivalent of killing their children, that an embryo being 0:03:38.640 --> 0:03:41.960 stored in this lab a fertilized embryo, which, according to 0:03:42.040 --> 0:03:44.840 the testimony, was an equivalent of a few days old 0:03:45.040 --> 0:03:47.360 into the pregnancy process, but less than a week that 0:03:47.440 --> 0:03:50.360 that was the same as a fully born child who 0:03:50.400 --> 0:03:53.440 had been killed. You know, it's an extreme position and 0:03:53.520 --> 0:03:56.600 it raises all kinds of troubling implications for anybody who 0:03:56.760 --> 0:04:00.760 is involved at all in the process of extracting, storing, 0:04:01.120 --> 0:04:05.120 implanting embryos, handling them in any way. The simple meaning 0:04:05.120 --> 0:04:07.320 of this case is that you are potentially, if anything 0:04:07.360 --> 0:04:11.400 happens to these embryos, you are effectively committing the equivalent 0:04:11.400 --> 0:04:13.400 of a homicide or a manslaughter of a child. 0:04:14.200 --> 0:04:19.440 The common practice with a patient undergoing IVF, multiple embryos 0:04:19.480 --> 0:04:22.919 are created right so that the patient can try again 0:04:23.200 --> 0:04:27.400 if an attempt at pregnancy fail. So what kind of 0:04:27.480 --> 0:04:31.000 problem does a decision like this create, right? 0:04:31.120 --> 0:04:33.560 You know, it's a difficult procedure in which there's no 0:04:33.680 --> 0:04:37.400 certainty that a single embryo will implant. In fact, if 0:04:37.400 --> 0:04:39.719 you go back just twenty years ago, prior to the 0:04:39.760 --> 0:04:43.880 octomom case, it was common practice for many fertility doctors 0:04:44.279 --> 0:04:48.000 to implant the significantly larger numbers of embryos to see 0:04:48.000 --> 0:04:51.040 which ones would succeed. And it's still a common practice 0:04:51.120 --> 0:04:54.359 to implant smaller numbers of multiple embryos, which is one 0:04:54.400 --> 0:04:56.720 of the reasons we see a lot more twins resulting 0:04:56.839 --> 0:05:00.440 from IVF. The problem now is that, based on the case, 0:05:00.640 --> 0:05:04.599 the handling of those embryos is effectively the handling of 0:05:04.960 --> 0:05:08.479 live children. I don't know, between the age of one 0:05:08.520 --> 0:05:12.120 day old newborn to seventeen year olds. Those embryos have 0:05:12.200 --> 0:05:15.400 the same legal status as those children. And these are 0:05:15.560 --> 0:05:19.960 embryos that are in the hands of labs, doctors, hospitals, 0:05:20.320 --> 0:05:24.640 surgery centers, and really a world of new questions of 0:05:24.680 --> 0:05:28.440 what their responsibilities are, Like what happens if the power 0:05:28.480 --> 0:05:31.000 goes off and there's a destruction that way, What happens 0:05:31.000 --> 0:05:33.680 if they aren't used and they're simply sitting there is 0:05:33.720 --> 0:05:37.160 there any consequence if they're no longer usable, What happens 0:05:37.240 --> 0:05:39.880 if there's a dispute between the parents? What is their status? 0:05:39.880 --> 0:05:42.800 They are no longer property, they are live right. So 0:05:42.920 --> 0:05:46.120 this is a radical new legal world that we've entered 0:05:46.200 --> 0:05:46.920 with this decision. 0:05:47.440 --> 0:05:52.239 Usually the parents have the right to decide what happens 0:05:52.279 --> 0:05:55.360 to embryos that are not used. 0:05:55.720 --> 0:05:59.280 Correct until now and in every other state, embryos are 0:06:00.040 --> 0:06:05.200 effectively property. The parents have full discretion over what to 0:06:05.240 --> 0:06:08.640 do with them. Parents can decide if they don't want 0:06:08.680 --> 0:06:12.080 to pursue further privs, and there were remaining embryos, they 0:06:12.080 --> 0:06:16.120 could simply demand that they be destroyed, and they would 0:06:16.120 --> 0:06:19.880 be destroyed like any other kind of tissue in a lab, right, 0:06:20.040 --> 0:06:22.200 And it's not that they would have hero value, but 0:06:22.240 --> 0:06:25.520 they would not have the value accorded under Alabama law 0:06:25.600 --> 0:06:27.719 to a life, and they would not be facing the 0:06:27.760 --> 0:06:31.680 dire consequences of having essentially taken a life by the 0:06:31.720 --> 0:06:34.720 negligence of allowing a patient a third party to get 0:06:34.760 --> 0:06:38.880 into the facility. So all kinds of really scary implications 0:06:38.920 --> 0:06:40.960 about what this new status means. 0:06:41.240 --> 0:06:45.080 Also, can you do genetic testing on embryos? 0:06:45.120 --> 0:06:48.240 Then the question of whether you can do genetic testing 0:06:48.320 --> 0:06:50.600 or what you can do to these embryos short of 0:06:50.720 --> 0:06:54.080 destroying them is a really interesting question. There's nothing in 0:06:54.120 --> 0:06:58.080 this decision that suggests that you couldn't do genetic testing. However, 0:06:58.720 --> 0:07:02.040 any time that you have any kind of contact with, 0:07:02.240 --> 0:07:06.960 you know, embryonic tissue, you are effectively potentially taking a risk. Right, 0:07:07.000 --> 0:07:10.360 there is a risk that the extraction, even though it's 0:07:10.440 --> 0:07:13.320 often done safely. I think doctor's rul routinely tell patients, 0:07:13.360 --> 0:07:15.720 there is a chance that this will result in destruction. 0:07:15.880 --> 0:07:19.200 So I think genetic testing just became in this context, 0:07:19.240 --> 0:07:23.200 became basically off limits in Alabama because it could result 0:07:23.640 --> 0:07:26.720 in the destruction of a tissue and therefore essentially a killing. 0:07:27.240 --> 0:07:30.280 And this is a decision where the court hands down 0:07:30.360 --> 0:07:36.120 this radical decision and then just says, Okay, we're done, 0:07:36.200 --> 0:07:40.240 and the implications are left to I don't know, the 0:07:40.280 --> 0:07:45.480 medical profession, patience, the legislature who. 0:07:45.320 --> 0:07:48.200 Decides yeah, it's you know, this decision in many ways 0:07:48.320 --> 0:07:51.120 reminds me it sort of parallels the DA decision itself, 0:07:51.120 --> 0:07:53.440 which revealed Roe v. Wade in the sense that the 0:07:53.440 --> 0:07:57.360 Supreme Court said, we'reishing this proclamation that rowan too far, 0:07:57.440 --> 0:07:59.800 and we're kicking it back to the states to this 0:08:00.320 --> 0:08:02.840 and there was this almost like assumption that the problem 0:08:02.880 --> 0:08:05.000 would just sort itself out at the state level, and 0:08:05.040 --> 0:08:08.200 in fact, we've gotten a result of national chaos over 0:08:08.640 --> 0:08:11.920 the last nearly two years. And this decision does exactly 0:08:11.960 --> 0:08:15.600 the same thing in this smaller context of IVF and 0:08:15.640 --> 0:08:19.120 Alabama and embryos, because it's created a world of chaos 0:08:19.120 --> 0:08:23.240 where all these different actors parents who are considering IVF 0:08:23.680 --> 0:08:28.160 and fertility treatment, fertility doctors, hospitals, health systems, medical school 0:08:28.160 --> 0:08:32.520 training programs, storage companies. Everybody's got to make these new decisions, 0:08:32.880 --> 0:08:36.240 and there will certainly be new regulations, but there's a 0:08:36.280 --> 0:08:39.920 lot of personal decisions just to sort of avoid this 0:08:40.040 --> 0:08:43.880 whole uncertain, chaotic environment in favor of going to states 0:08:43.880 --> 0:08:47.000 where this is totally uncontroversial territory, Harry. 0:08:47.040 --> 0:08:50.200 Some doctors are saying that patients because of this could 0:08:50.240 --> 0:08:54.520 have to endure longer and more costly treatments to try 0:08:54.559 --> 0:08:57.960 to achieve a pregnancy if they're only allowed to create 0:08:58.400 --> 0:09:02.440 one embryo per cycle, and one cycle of IVF now 0:09:02.520 --> 0:09:06.680 calls about fifteen to twenty five thousand dollars. Tell us 0:09:06.720 --> 0:09:08.480 a little about the process. 0:09:08.640 --> 0:09:10.880 The process, if you speak to any woman who's had it, 0:09:10.960 --> 0:09:12.640 or couples that have gone through it, is it's quite 0:09:12.679 --> 0:09:16.360 an intensive process to prepare for it, for the extraction 0:09:16.400 --> 0:09:19.079 of the eggs, and then essentially the fertilization of the 0:09:19.120 --> 0:09:21.760 sperm and egg happened in the lab, and then once 0:09:21.840 --> 0:09:25.439 there's confirmed fertilization and just a little bit of growth 0:09:25.559 --> 0:09:28.120 of the embryo, it is then implanted. And you know, 0:09:28.160 --> 0:09:31.360 there's a question of whether the women's uterusm will accept 0:09:31.360 --> 0:09:34.640 the tissue and whether it will attach appropriately, and then 0:09:34.760 --> 0:09:38.040 there continue to be questions and a risk of unsuccessful 0:09:38.040 --> 0:09:42.560 implantation or miscarriage is a very significant risk. This is 0:09:42.559 --> 0:09:47.600 an amazing miracle of reproductive health technology that's a dance fertility, 0:09:47.640 --> 0:09:49.920 and in recent decades that's made this a possibility. But 0:09:50.000 --> 0:09:52.600 I'd personally know multiple couples that have had to go 0:09:52.640 --> 0:09:55.800 through round after round of this procedure, and that was 0:09:55.840 --> 0:10:01.000 with implanting multiple embryos just to get to success full pregnancy. 0:10:01.040 --> 0:10:04.960 And so basically this has eliminated the possibility of more 0:10:05.000 --> 0:10:08.280 than one embryo being implanted, and it means that the 0:10:08.280 --> 0:10:13.120 odds of each treatment of each IVF attempt are now reduced. 0:10:13.200 --> 0:10:15.360 If you do it in Alabama, where you certainly can't 0:10:15.400 --> 0:10:17.959 do more than one embryo, and it's become higher risk. 0:10:18.000 --> 0:10:20.960 I suppose most fertility doctors would probably do two and 0:10:21.040 --> 0:10:23.560 allow for the possibility of twins if that's acceptable to 0:10:23.640 --> 0:10:27.600 the mother. But you're really still really narrowing the chances 0:10:27.640 --> 0:10:31.840 of a successful implantation and a successful pregnancy delivered to terms. 0:10:31.880 --> 0:10:33.600 So it's very likely that women will have to do 0:10:33.640 --> 0:10:36.199 this more. And that also is compounded by the fact that, 0:10:36.520 --> 0:10:40.000 in addition to being difficult and emotionally stressful, it's extremely 0:10:40.040 --> 0:10:43.760 expensive and very few people have the resources to repeat 0:10:43.800 --> 0:10:48.160 this process over and over again without significant financial backing. 0:10:48.640 --> 0:10:52.000 As we said, the ruling is only valid in Alabama, 0:10:52.120 --> 0:10:56.199 but at least eleven states have broadly defined personhood is 0:10:56.360 --> 0:11:00.520 beginning at fertilization in their state laws. So can we 0:11:00.640 --> 0:11:06.000 expect the anti abortion movement to start pushing decisions like 0:11:06.040 --> 0:11:07.480 this in other states? 0:11:08.080 --> 0:11:08.280 Yeah? 0:11:08.320 --> 0:11:13.040 Absolutely. I think that the logic of the decision here 0:11:13.200 --> 0:11:16.720 is something that the right to life movement is supportive of, 0:11:17.080 --> 0:11:20.120 which is sort of treating embryos with more sanctity in 0:11:20.160 --> 0:11:23.920 all of these states and eliminating practices that have bothered 0:11:24.000 --> 0:11:25.600 them for a long time. Right, Like I said, we 0:11:25.800 --> 0:11:28.720 already in the last fifteen years, certain practices in fertility 0:11:28.840 --> 0:11:32.120 have already gone away under pressure, including the practice of 0:11:32.320 --> 0:11:35.600 implanting multiple embryos and then doing a reduction to remove 0:11:35.640 --> 0:11:37.920 embryos to get to the right number. It would not 0:11:37.960 --> 0:11:40.040 be surprising to be the law in all of these states, 0:11:40.040 --> 0:11:42.880 and it is a logical implication of saying that life 0:11:42.920 --> 0:11:45.720 begins at conception. I mean it would require some different 0:11:45.840 --> 0:11:51.480 articulation that would potentially devalue what's occurring at conception or 0:11:51.520 --> 0:11:54.560 immediately after to say otherwise. So I think this position 0:11:54.640 --> 0:11:57.600 is going to be supported by the pro life community, 0:11:57.720 --> 0:11:58.960 and I think the rest of us are going to 0:11:58.960 --> 0:12:00.880 have to figure out how to deal with it. 0:12:01.200 --> 0:12:03.800 Would you say this is a new chapter in the 0:12:04.040 --> 0:12:07.080 continuing fight over women's reproductive rights. 0:12:07.640 --> 0:12:09.360 Yeah, I do think this is in the sense of 0:12:09.360 --> 0:12:11.760 new chapter. I don't think people should be surprised, right, 0:12:11.800 --> 0:12:14.360 I think that we've seen the implications already pose the 0:12:14.400 --> 0:12:17.160 repeal of Roe v. Wade with regard to not just abortion, 0:12:17.280 --> 0:12:20.800 but with regards to miscarriage treatment and seeing it extended 0:12:20.840 --> 0:12:24.199 into fertility. This is something that was absolutely predicted right 0:12:24.240 --> 0:12:27.400 after the repeal, not surprising. People should not be surprised 0:12:27.440 --> 0:12:32.080 to see contraception be the next battlefield. And these questions 0:12:32.120 --> 0:12:35.280 all are really going to push at what most of 0:12:35.360 --> 0:12:39.239 us have accepted as the traditional you know, right round reproduction, 0:12:39.559 --> 0:12:42.160 reproductive health access that women had, and that all of 0:12:42.200 --> 0:12:44.400 us that none of it should surprise anybody who was 0:12:44.440 --> 0:12:47.440 thinking through the implications when this repeal happened, and there 0:12:47.440 --> 0:12:48.079 were sure to. 0:12:48.040 --> 0:12:51.760 Be more ripple effects of the Supreme Court overturning Row. 0:12:52.240 --> 0:12:55.920 Thanks so much, Harry. That's Harry Nelson of Nelson Hardiman. 0:12:56.360 --> 0:13:00.440 I'm June Grasso, and you're listening to Bloomberg Day. Between 0:13:00.440 --> 0:13:02.360 now and November, the American people are going to know 0:13:03.400 --> 0:13:05.800 that the only reason the border is not secure is 0:13:05.880 --> 0:13:09.720 Donald Trump and as maga Republican friends. And it seems 0:13:09.760 --> 0:13:13.160 like President Joe Biden is trying to keep that promise 0:13:13.240 --> 0:13:16.920 of showing up Trump and Republicans who killed the biparties 0:13:16.960 --> 0:13:20.319 in border deal by making some changes of his own. 0:13:20.840 --> 0:13:25.880 The Biden administration is considering taking unilateral executive action using 0:13:25.960 --> 0:13:30.440 provisions of federal immigration law repeatedly tapped by former President 0:13:30.480 --> 0:13:34.040 Donald Trump, to enact a crackdown at the southern border. 0:13:34.520 --> 0:13:38.800 According to Bloomberg's sources, the administration has been exploring options 0:13:38.840 --> 0:13:42.640 that Biden could deploy on his own without congressional approval, 0:13:43.040 --> 0:13:45.960 but it's far from clear that the measures could withstand 0:13:46.160 --> 0:13:49.800 almost certain court challenges. Here to tell us about them 0:13:49.960 --> 0:13:52.960 is Leon Fresco, a partner at Holland and Knight. He 0:13:53.080 --> 0:13:55.440 was the former head of the Office of Civil Immigration 0:13:55.600 --> 0:13:59.040 Litigation in the Obama administration. So Leon tell us what 0:13:59.200 --> 0:14:00.880 measures Biden is considering. 0:14:01.280 --> 0:14:04.800 President Biden is considering a number of options, which some 0:14:04.880 --> 0:14:07.280 of them have been tried in the past and some 0:14:07.480 --> 0:14:11.319 have been rejected in the past because of questions about 0:14:11.320 --> 0:14:13.719 their legality. But let me take you through them. So 0:14:14.400 --> 0:14:18.840 the most important in terms of impact would be trying 0:14:18.880 --> 0:14:22.360 to take what is normally known as the travel ban statues, 0:14:22.800 --> 0:14:27.520 which is INA Section to twelve F, and actually saying 0:14:27.560 --> 0:14:32.280 that it can be used to remove people whose bodies 0:14:32.320 --> 0:14:35.800 have already entered the United States without letting them apply 0:14:35.920 --> 0:14:39.600 for asylum. Trump tried this, and the reason it didn't 0:14:39.640 --> 0:14:44.000 work is because the two twelve F travel ban statues 0:14:44.320 --> 0:14:48.240 uses this very interesting word in the immigration law, entry 0:14:48.560 --> 0:14:52.880 into the United States. But the problem is, under millions 0:14:52.880 --> 0:14:55.720 of cases that exist in immigration law, and you know, 0:14:55.720 --> 0:14:58.000 all the way up to the Supreme Court, this word 0:14:58.280 --> 0:15:03.560 entry means preventing the actual body from answering the United States. 0:15:03.680 --> 0:15:07.560 But once you've entered, then what's needed is a deportation. 0:15:08.400 --> 0:15:12.600 And so what the travel band statue prevents is an entry. 0:15:12.680 --> 0:15:15.320 But the entry here has already occurred, and so the 0:15:15.400 --> 0:15:18.960 question is, can you use this travel band statute deport 0:15:19.040 --> 0:15:24.440 someone without going through the normal deportation process, and that's 0:15:24.440 --> 0:15:26.600 going to be ultimately a question for the courts. But 0:15:26.680 --> 0:15:30.440 most likely is that's not going to be allowed because 0:15:30.480 --> 0:15:34.040 that wasn't allowed under the Trump administration. Even though that 0:15:34.120 --> 0:15:36.960 specific question didn't work its way all the way up 0:15:37.000 --> 0:15:39.480 to the Supreme Court. That is one of the things 0:15:39.520 --> 0:15:42.160 that they're discussing. The question is how likely it will 0:15:42.200 --> 0:15:44.040 be to succeed. It Just that's number one. 0:15:44.120 --> 0:15:46.080 Let me just stop you a minute. So in that 0:15:46.240 --> 0:15:51.480 case they would take migrants to enter the country and immediately. 0:15:50.920 --> 0:15:54.840 Deport them right Their argument would be employing I Ina 0:15:54.960 --> 0:15:58.520 too twelve f the ban on entry statutes to say 0:15:58.560 --> 0:16:01.440 that even though you've entered, we're not gonna let you 0:16:01.640 --> 0:16:06.760 answer because you've entered illegally. Entry means legal entry, and 0:16:06.840 --> 0:16:10.320 so we're banning any kind of illegal entry. And so 0:16:10.440 --> 0:16:12.200 once we find you, we're allowed to kick you out 0:16:12.200 --> 0:16:15.440 without getting asylum, without any due process of any kind. 0:16:15.640 --> 0:16:19.800 Any look to see about asylum or any trafficking or 0:16:19.840 --> 0:16:22.480 anything else. That's not going to be our concern. We're 0:16:22.520 --> 0:16:25.320 just gonna take you and move you right back into 0:16:25.360 --> 0:16:28.360 Mexico without any of that. And so the question will 0:16:28.360 --> 0:16:32.360 be does this ability that decides you give to prevent 0:16:32.560 --> 0:16:36.880 an entry work after an entry has already been made 0:16:37.280 --> 0:16:41.040 in a case where the entry made was illegal, And 0:16:41.080 --> 0:16:43.000 so that's gonna be the question that a court will 0:16:43.000 --> 0:16:44.000 have to determine. 0:16:44.520 --> 0:16:48.040 I'm sure that that definition of entry doesn't meet the 0:16:48.240 --> 0:16:53.120 Merriam Webster Dictionary definition, but legal interpretation is another thing. 0:16:53.440 --> 0:16:56.600 But it sounds like that wouldn't pass legal scrutiny when 0:16:56.600 --> 0:16:58.680 it's challenged, which it surely will be. 0:16:59.040 --> 0:17:02.240 It may also be that the Biden administration doesn't care 0:17:02.280 --> 0:17:04.640 if that gets a join because at least from their 0:17:04.680 --> 0:17:07.720 per sective, they can say, look, we tried. Do you 0:17:07.840 --> 0:17:11.520 now see that this takes Congress, Congress down back to you. 0:17:12.160 --> 0:17:15.800 The Biden administration is also discussing ways to make it 0:17:15.880 --> 0:17:20.200 harder for migrants to pass the initial screening for asylum seekers, 0:17:20.880 --> 0:17:23.680 essentially raising the standard tell us about that. 0:17:24.280 --> 0:17:27.520 The standard right now is called credible fear, And what 0:17:27.680 --> 0:17:29.600 that says under the law is do you have a 0:17:29.640 --> 0:17:36.560 significant possibility of having an asylum case that's plausible? And 0:17:36.880 --> 0:17:40.240 the issue is that there is some dicta in the court. 0:17:40.480 --> 0:17:43.399 This is not binding law, but it's pretty strong dicta 0:17:43.520 --> 0:17:46.360 that even for an asylum case, you have to show 0:17:46.400 --> 0:17:49.320 that you have a ten percent chance of being persecuted 0:17:49.359 --> 0:17:52.880 in your home country. So this credible fear standard is 0:17:52.960 --> 0:17:56.080 do you have a significant possibility of having a ten 0:17:56.119 --> 0:18:00.360 percent chance? And so if a pretty lenient standard, and 0:18:00.440 --> 0:18:03.439 so what that means is a lot of people qualified. 0:18:03.480 --> 0:18:07.720 Now if you raise the standard, many people believe Congress 0:18:07.760 --> 0:18:10.080 is the one that needs to do that, because every 0:18:10.080 --> 0:18:13.440 single time that the government has tried to raise the standard, 0:18:13.880 --> 0:18:16.560 whether they do it on paper or whether they do 0:18:16.640 --> 0:18:18.960 it verbally, they kind of give a hint in so 0:18:19.119 --> 0:18:22.240 the agents look start finding ways to deny these claims. 0:18:22.680 --> 0:18:26.080 The advocates figure it out, they sue, and they enjoy 0:18:26.640 --> 0:18:29.840 whatever new move was done, because the law is actually 0:18:29.840 --> 0:18:34.320 pretty firm that it's this specific credible fear standard that 0:18:34.400 --> 0:18:37.439 must be applied at the moment until such time as 0:18:37.520 --> 0:18:38.520 Congress changes it. 0:18:38.920 --> 0:18:42.359 All right, that makes two that seem unlikely to withstand 0:18:42.440 --> 0:18:45.000 court challenges. What else are they discussing? 0:18:45.440 --> 0:18:48.320 So then the next few possibilities are these sort of 0:18:48.920 --> 0:18:53.080 more acnee tried and truth. Always they try to do 0:18:53.119 --> 0:18:56.639 this and they never work. Resolutions like for instance, moving 0:18:56.720 --> 0:19:00.920 to a last in, first out processing to them, which 0:19:00.960 --> 0:19:04.080 what they say is, okay, let's just clear the decks 0:19:04.760 --> 0:19:08.760 of the millions of cases that we have for deportation, 0:19:08.880 --> 0:19:12.440 which is making things take many months. Let's just immediately 0:19:12.480 --> 0:19:16.280 put someone who comes tomorrow into the court so that way, 0:19:16.359 --> 0:19:20.159 at least these new cases are moving quickly and we 0:19:20.359 --> 0:19:24.040 can get them process. But what happens is that never 0:19:24.160 --> 0:19:27.320 works because the person then says, I haven't found the 0:19:27.400 --> 0:19:30.320 lawyer yet, and there's case law about getting people a 0:19:30.440 --> 0:19:33.119 chance to find the lawyer, and so you have to 0:19:33.119 --> 0:19:35.880 give them several weeks to do that. And then once 0:19:35.920 --> 0:19:39.720 you've done that, then you've already moved from this urgent 0:19:40.119 --> 0:19:44.160 processing point and we're back to square one again. So 0:19:44.480 --> 0:19:47.680 that issue of can we clear the decks and move 0:19:47.760 --> 0:19:52.359 cases quickly has unfortunately, And let's we're going to start 0:19:52.400 --> 0:19:56.480 assigning people lawyers so that then they have to make 0:19:56.520 --> 0:19:59.240 their asylum case on the spot. That would be a 0:19:59.280 --> 0:20:03.080 way you could people through the court quickly, But I 0:20:03.119 --> 0:20:06.280 don't think Congress has given enough funding to make that 0:20:06.320 --> 0:20:10.440 succeed at any grand scale, And I think people would 0:20:10.480 --> 0:20:13.760 be against that on the conservative side because they would say, 0:20:13.760 --> 0:20:17.320 why are you getting free lawyers to the foreign nationals 0:20:17.320 --> 0:20:20.359 coming illegally. But the problem is is if you don't 0:20:20.400 --> 0:20:22.480 do that, there's all the Staate well that says you 0:20:22.560 --> 0:20:25.639 have to give people a reasonable tine period to find 0:20:25.680 --> 0:20:29.199 a lawyer, which then subverts this ability to have a 0:20:29.320 --> 0:20:30.680 rocket docket essentially. 0:20:31.160 --> 0:20:34.159 And they're also considering detaining more people. 0:20:34.680 --> 0:20:37.679 The problem is they are one, you need additional congressional 0:20:37.720 --> 0:20:40.399 funding to do it, which ICE is now saying they 0:20:40.400 --> 0:20:43.480 actually can have lesson to be able to detain people. 0:20:43.520 --> 0:20:46.240 And number two, you can't detain anyone where there's a 0:20:46.320 --> 0:20:50.240 kid involved, so you couldn't detain families coming together, and 0:20:50.320 --> 0:20:54.119 you can't detain children at all, and so you would 0:20:54.119 --> 0:20:57.480 just be detaining single adults, which the government is already 0:20:57.520 --> 0:21:01.120 doing at the capacity they're doing. The problem is many 0:21:01.160 --> 0:21:06.440 many more people coming than the detention spaces that exists. 0:21:06.760 --> 0:21:10.000 You know, maybe you can start using military bases and 0:21:10.080 --> 0:21:13.199 other things of this nature and not what can be done, 0:21:13.320 --> 0:21:16.560 but it's gonna need more funding to convince people you 0:21:16.640 --> 0:21:18.720 really are serious about detaining people. 0:21:19.320 --> 0:21:23.440 Does Biden have the resources for any of these plans 0:21:23.480 --> 0:21:25.680 to be implemented, so. 0:21:25.760 --> 0:21:28.320 For the ban, he certainly does. The the band doesn't 0:21:28.400 --> 0:21:31.399 cost anything. The question is will the court uphold the 0:21:31.440 --> 0:21:37.920 ban for the increased detention. He's gonna need additional funding 0:21:38.520 --> 0:21:42.159 from Congress for things like, you know, food for the 0:21:42.200 --> 0:21:45.920 people that are being detained, housing, transportations to move them 0:21:45.960 --> 0:21:49.479 to these detention facilities, things of nature. So all of 0:21:49.480 --> 0:21:52.480 that will be needed. The question is will Congress give 0:21:52.520 --> 0:21:55.440 them that funding or what the Biden administration could do 0:21:55.600 --> 0:22:00.560 theoretically is divert resources from other Department of Homeland Security 0:22:00.600 --> 0:22:03.800 priorities to this. But the question is how much money 0:22:03.920 --> 0:22:06.439 is they're really in the budget to divert to this 0:22:06.560 --> 0:22:09.120 that's not being used for something useful. I mean, surely 0:22:09.400 --> 0:22:11.560 there will be some programs you can divert to this, 0:22:12.040 --> 0:22:14.879 but I don't know in terms of the billions that 0:22:14.920 --> 0:22:18.680 will be needed that they're billions left diverts. So that's 0:22:18.720 --> 0:22:21.160 why you would think the Congress would need to pass 0:22:21.200 --> 0:22:21.840 the funds for that. 0:22:22.400 --> 0:22:25.919 It sounds like all of these plans might have a 0:22:26.000 --> 0:22:28.520 problem in the courts, correct. 0:22:28.160 --> 0:22:31.000 And I think that's where the question ultimately comes down to. 0:22:31.720 --> 0:22:37.000 Is the Biden administration proposing these changes to simply have 0:22:37.160 --> 0:22:40.280 them lose because it knows that they will lose, but 0:22:40.280 --> 0:22:42.600 at least they can say, look, we tried, and now 0:22:42.720 --> 0:22:46.359 isn't it obvious that Congress needs sacked. That's one option 0:22:47.119 --> 0:22:51.280 or option two. Aren't doing it to just say they 0:22:51.280 --> 0:22:53.040 did something at the end of the day. I mean, 0:22:53.359 --> 0:22:57.080 that's ultimately the question. It's not clear what the goal is. 0:22:57.119 --> 0:23:00.560 But if the goal is that they thing that there's 0:23:00.560 --> 0:23:03.679 something they can do at a moment that doesn't have 0:23:03.720 --> 0:23:08.760 some Congressional assistance, that's going to completely stem the tide 0:23:08.800 --> 0:23:11.240 of what's happening at the border. It's going to be very, 0:23:11.320 --> 0:23:14.480 very difficult to accomplish because they're going to need at 0:23:14.560 --> 0:23:17.400 least assistance from the court. Maybe they don't need assistance 0:23:17.440 --> 0:23:19.840 from Congress, but they're going to at least need assistant 0:23:19.880 --> 0:23:22.000 from the courts to do something that the courts have 0:23:22.119 --> 0:23:23.200