1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 2 00:00:06,400 --> 00:00:10,959 Speaker 1: President Joe Biden promised an ambitious immigration agenda during the campaign. 3 00:00:11,560 --> 00:00:13,520 Speaker 1: Within a hundred days, I'm going to send to the 4 00:00:13,600 --> 00:00:17,800 Speaker 1: United States Congress a pathway to citizenship for over eleven 5 00:00:17,840 --> 00:00:21,440 Speaker 1: million undocumented people. But his first steps in that direction 6 00:00:21,640 --> 00:00:24,560 Speaker 1: hit a legal roadblock put up by the state of Texas. 7 00:00:24,920 --> 00:00:27,080 Speaker 1: In a sign of the many legal battles to come, 8 00:00:27,440 --> 00:00:30,880 Speaker 1: Texas sued to stop the new administration's one hundred day 9 00:00:30,880 --> 00:00:35,360 Speaker 1: pause on deportations of undocumented immigrants, and in a swift 10 00:00:35,479 --> 00:00:40,080 Speaker 1: legal defeat for the administration, a Texas judge temporarily blocked 11 00:00:40,080 --> 00:00:44,120 Speaker 1: the moratorium. Joining me as immigration law expert, Rick Sue, 12 00:00:44,280 --> 00:00:47,280 Speaker 1: a professor at the University of North Carolina Law School, 13 00:00:47,680 --> 00:00:51,720 Speaker 1: Rick this order by Judge Drew Tipton, a Trump appointee. 14 00:00:52,080 --> 00:00:56,120 Speaker 1: Were you surprised that the judge issued this order so initially? 15 00:00:56,160 --> 00:00:59,160 Speaker 1: I was surprised, right, because my understanding was that the 16 00:00:59,480 --> 00:01:02,600 Speaker 1: challenge was primarily based on agreement, and I just thought 17 00:01:02,680 --> 00:01:05,840 Speaker 1: that not only was the agreement really unenforceable, but that 18 00:01:05,959 --> 00:01:08,360 Speaker 1: for the judge to rule so quickly on this without 19 00:01:08,440 --> 00:01:11,520 Speaker 1: argument without sort of going through everything would be too quick. 20 00:01:11,760 --> 00:01:14,640 Speaker 1: After reading it, though, I realized that the order was 21 00:01:14,680 --> 00:01:17,800 Speaker 1: a lot more limited. It certainly did not address this 22 00:01:18,200 --> 00:01:22,440 Speaker 1: unprecedented agreement between Texas and the federal government, but in 23 00:01:22,480 --> 00:01:25,479 Speaker 1: some ways was more closely situated to something that we've 24 00:01:25,520 --> 00:01:28,120 Speaker 1: seen a lot. This is based on the a p A. 25 00:01:28,319 --> 00:01:31,640 Speaker 1: The Administrative Procedures Acts, a little statute. It seems to 26 00:01:31,720 --> 00:01:35,120 Speaker 1: be following the same kind of strand that was used 27 00:01:35,120 --> 00:01:39,120 Speaker 1: against the Trump administration with regards to the executive orders 28 00:01:39,120 --> 00:01:42,640 Speaker 1: and policies that were issued under his administration. So explain 29 00:01:42,760 --> 00:01:46,399 Speaker 1: the judge reasoning. So the judge is reasoning, Um, there 30 00:01:46,400 --> 00:01:49,040 Speaker 1: were two points that he sort of laughs on too, 31 00:01:49,080 --> 00:01:51,720 Speaker 1: because in order to even get a temporary restraining order, 32 00:01:51,760 --> 00:01:54,160 Speaker 1: there has to be some sense that the party is 33 00:01:54,200 --> 00:01:56,600 Speaker 1: likely to prevail on the merits. Not really data, they 34 00:01:56,600 --> 00:01:58,520 Speaker 1: addressing the merits, but they have to address this sort 35 00:01:58,560 --> 00:02:01,360 Speaker 1: of indirectly from that particular stand and the two points. 36 00:02:01,480 --> 00:02:06,320 Speaker 1: One was that the one day pause violated a provision 37 00:02:06,600 --> 00:02:10,440 Speaker 1: of the federal law on immigration, the Immigration Nationality Act, 38 00:02:10,760 --> 00:02:14,920 Speaker 1: which actually requires individuals with final orders to deportation to 39 00:02:14,960 --> 00:02:18,160 Speaker 1: be removed within ninety days. Right that certain individuals that 40 00:02:18,280 --> 00:02:20,680 Speaker 1: within the pause would not be removed with the ninety days, 41 00:02:20,720 --> 00:02:23,079 Speaker 1: and that this violates the federal law and therefore the 42 00:02:23,120 --> 00:02:26,040 Speaker 1: policy that violates it would then be an Administrated Procedure 43 00:02:26,040 --> 00:02:27,960 Speaker 1: Act problem. I'm having to talk about that because I 44 00:02:27,960 --> 00:02:29,640 Speaker 1: think in some ways it might be a misreading of 45 00:02:29,680 --> 00:02:31,960 Speaker 1: the memo, or at least in my opinions, But nonetheless, 46 00:02:32,040 --> 00:02:34,320 Speaker 1: that's the first claim. The second claim that was made 47 00:02:34,480 --> 00:02:38,119 Speaker 1: is actually similar to the Supreme Court case with regards 48 00:02:38,160 --> 00:02:41,840 Speaker 1: to the Trump administration's efforts to roll back SOCCA. Now, 49 00:02:41,880 --> 00:02:44,360 Speaker 1: if you call from that case, what the Supreme Court 50 00:02:44,400 --> 00:02:48,160 Speaker 1: held was that the justification that was given was insufficient, 51 00:02:48,240 --> 00:02:51,240 Speaker 1: There wasn't sufficient reason for why they were rolling back 52 00:02:51,280 --> 00:02:54,960 Speaker 1: soccer their respective of the other issues around it. And 53 00:02:55,000 --> 00:02:56,920 Speaker 1: in some ways they're making the same argument here that 54 00:02:57,120 --> 00:02:59,880 Speaker 1: the explanation that was given for the need for one 55 00:03:00,080 --> 00:03:04,720 Speaker 1: hundred day pause was not sufficiently articulated, was not satisfactory 56 00:03:04,800 --> 00:03:07,280 Speaker 1: to the court, and for the Court thought that it 57 00:03:07,360 --> 00:03:11,000 Speaker 1: was likely to be ruled arbitrary and capricious, which would 58 00:03:11,040 --> 00:03:14,280 Speaker 1: violate the Administrative Procedure. That again, I have some quipples 59 00:03:14,320 --> 00:03:17,800 Speaker 1: with that particular interpretation, but nonetheless these are at least 60 00:03:17,960 --> 00:03:20,960 Speaker 1: rounded within things that we've seen before, as opposed to 61 00:03:21,000 --> 00:03:24,040 Speaker 1: this agreement, which support itself said raises all sorts of 62 00:03:24,040 --> 00:03:26,400 Speaker 1: constitutional questions, and he is not going to rule on 63 00:03:26,440 --> 00:03:29,359 Speaker 1: that at this point. Just to clarify, the agreement you're 64 00:03:29,400 --> 00:03:33,320 Speaker 1: referring to is won the Trump administration signed with conservative 65 00:03:33,440 --> 00:03:37,240 Speaker 1: states in its final week. The Texas a g claims 66 00:03:37,280 --> 00:03:42,160 Speaker 1: the Department of Homeland Security agreed to consult with Texas 67 00:03:42,200 --> 00:03:47,680 Speaker 1: before making any changes to deportation regulations. How unusual would 68 00:03:47,720 --> 00:03:50,880 Speaker 1: that be? So this is very unusual, not only this 69 00:03:51,000 --> 00:03:54,839 Speaker 1: idea that the federal government would delegate right, this sort 70 00:03:54,880 --> 00:03:58,360 Speaker 1: of obligation to both consult with a particular state or 71 00:03:58,400 --> 00:04:02,040 Speaker 1: even a particular locality, but also even the obligation that 72 00:04:02,200 --> 00:04:04,760 Speaker 1: in this particular agreement that they would hold off and 73 00:04:04,880 --> 00:04:07,920 Speaker 1: making any decisions for six months. They would have to 74 00:04:07,960 --> 00:04:11,800 Speaker 1: announce it, wait six months and get consultation. Clearly, this 75 00:04:11,880 --> 00:04:13,680 Speaker 1: is a last minute sort of effort by the Trump 76 00:04:13,720 --> 00:04:17,560 Speaker 1: administration to try to hamstring any policy changes by the 77 00:04:17,640 --> 00:04:21,000 Speaker 1: Biden administration, and in this case, they're doing it through 78 00:04:21,040 --> 00:04:24,240 Speaker 1: this agreement, through contract, not even through a policy or 79 00:04:24,279 --> 00:04:27,480 Speaker 1: a statute. Personally, I don't see how this agreement that 80 00:04:27,600 --> 00:04:31,320 Speaker 1: Texas is doing on would be enforceable, but it certainly 81 00:04:31,400 --> 00:04:34,599 Speaker 1: sets up the general framework which is the kind of 82 00:04:34,680 --> 00:04:37,280 Speaker 1: politics that we're going to see around immigrations and other 83 00:04:37,320 --> 00:04:40,720 Speaker 1: issues going forward, which is state attorney generals and Republican 84 00:04:40,800 --> 00:04:44,120 Speaker 1: states sort of taking up the mantles challenge of federal government. 85 00:04:44,760 --> 00:04:47,919 Speaker 1: So the Justice Department lawyer said Texas is asking to 86 00:04:48,000 --> 00:04:51,760 Speaker 1: run federal immigration law. Is that the basic argument that 87 00:04:51,800 --> 00:04:54,320 Speaker 1: the Justice Department is going to put forward here? Or 88 00:04:54,360 --> 00:04:58,080 Speaker 1: are there other arguments? Yeah, there's lots of arguments for 89 00:04:58,200 --> 00:05:01,320 Speaker 1: why this agreement, this con practice, last minute contract that 90 00:05:01,400 --> 00:05:04,719 Speaker 1: was signed by the outgoing Department Homeless Security is not enforceable. 91 00:05:05,040 --> 00:05:06,760 Speaker 1: But I think that Justice Department is right in this 92 00:05:06,839 --> 00:05:09,360 Speaker 1: sort of broader cases. All these arguments sort of circle 93 00:05:09,400 --> 00:05:15,040 Speaker 1: around the idea that the federal government cannot delegate or relinquish, 94 00:05:15,200 --> 00:05:19,360 Speaker 1: you know, some sovereign power over policy, either the executive 95 00:05:19,480 --> 00:05:21,719 Speaker 1: in terms of their discretion or even the whole federal 96 00:05:21,720 --> 00:05:24,320 Speaker 1: government in terms of making policy to a state. I mean, 97 00:05:24,440 --> 00:05:26,680 Speaker 1: you know, to go through some of the many arguments, right, 98 00:05:26,720 --> 00:05:29,400 Speaker 1: I mean, one is whether or not the Department Homeless 99 00:05:29,400 --> 00:05:32,640 Speaker 1: Security can even enter into this agreement to bind the 100 00:05:32,680 --> 00:05:35,880 Speaker 1: federal government or bind a future administration, as the Trump 101 00:05:35,920 --> 00:05:38,440 Speaker 1: minister is trying to do. The agency only has the 102 00:05:38,520 --> 00:05:41,640 Speaker 1: power that is delegated to Congress. And I can't find 103 00:05:41,680 --> 00:05:45,200 Speaker 1: any particular delegation by statute that allows to be just 104 00:05:45,520 --> 00:05:48,679 Speaker 1: to bind its own power or even find the federal 105 00:05:48,720 --> 00:05:51,159 Speaker 1: government in this way not to men do that. But 106 00:05:51,600 --> 00:05:54,359 Speaker 1: we're talking about doing this through contract, and we have 107 00:05:54,400 --> 00:05:57,800 Speaker 1: to remember that contract is not usually how governmental policies 108 00:05:57,839 --> 00:06:00,400 Speaker 1: are made. It's to be made through statute. And in fact, 109 00:06:00,480 --> 00:06:03,720 Speaker 1: the federal government has sovereign immunity. You can't usually sue 110 00:06:03,720 --> 00:06:06,440 Speaker 1: the federal government unless it gives permission for that suit 111 00:06:06,800 --> 00:06:10,600 Speaker 1: in contract or towards um. And in this particular case, uh, 112 00:06:10,880 --> 00:06:14,000 Speaker 1: you know, there has this provisions to allow certain suits 113 00:06:14,040 --> 00:06:17,640 Speaker 1: on contract for government contracts where services are good, but 114 00:06:17,720 --> 00:06:20,880 Speaker 1: not for this kind of policy contract or how policy 115 00:06:20,880 --> 00:06:24,880 Speaker 1: do you get made? Third, even if it was delegated, right, 116 00:06:24,960 --> 00:06:28,080 Speaker 1: even if you know somehow Congress allows this kind of 117 00:06:28,120 --> 00:06:31,960 Speaker 1: binding greed to made um, this could run a foul 118 00:06:32,000 --> 00:06:34,520 Speaker 1: of just the basic non delegation doctrine, right, which is 119 00:06:34,560 --> 00:06:37,840 Speaker 1: to say that there are just certain responsibilities and powers 120 00:06:38,200 --> 00:06:40,360 Speaker 1: when it comes to immigration, we know it's an exclusive 121 00:06:40,400 --> 00:06:44,120 Speaker 1: federal responsibility. It's just you know, these powers can't be delegated, right, 122 00:06:44,160 --> 00:06:46,679 Speaker 1: You can't just sort of take a bunch of federal 123 00:06:46,680 --> 00:06:49,680 Speaker 1: government powers and then through contract delegated to a state 124 00:06:50,240 --> 00:06:54,680 Speaker 1: or delegated heck to presumably contract to like a private industry. Uh. 125 00:06:54,720 --> 00:06:57,240 Speaker 1: These are powers that the government has, uh, And there 126 00:06:57,240 --> 00:07:00,000 Speaker 1: are processes by whiches are changed. But to sort of 127 00:07:00,120 --> 00:07:02,960 Speaker 1: stripped that kind of power, that sovereignty and give it 128 00:07:03,000 --> 00:07:06,200 Speaker 1: to another institution, this kind of delegation has ever been tried. 129 00:07:06,240 --> 00:07:08,760 Speaker 1: But even other types of delegations have run to foul 130 00:07:08,800 --> 00:07:11,960 Speaker 1: the non delegation doctorate or separation of powers issues or 131 00:07:12,000 --> 00:07:15,560 Speaker 1: federalism issues. So this runs without all these um uh 132 00:07:15,640 --> 00:07:18,720 Speaker 1: and even just the basic idea of the sovereign power 133 00:07:18,880 --> 00:07:22,600 Speaker 1: of the federal government here be given to arguably a 134 00:07:22,720 --> 00:07:24,840 Speaker 1: state and not even just a state to an attorney general. 135 00:07:24,920 --> 00:07:27,600 Speaker 1: All these agreements just signed with attorney generals, right, which 136 00:07:27,760 --> 00:07:32,080 Speaker 1: itself raises another set of hasn't The Supreme Court, the 137 00:07:32,240 --> 00:07:36,560 Speaker 1: Roberts Court in particular, very much said that immigration is 138 00:07:36,560 --> 00:07:41,040 Speaker 1: a federal matter, not the states. Yes, yeah, and not 139 00:07:41,200 --> 00:07:44,280 Speaker 1: just I mean this is well established in uh sort 140 00:07:44,320 --> 00:07:47,360 Speaker 1: of constitutional law by many Supreme courts, but even recently 141 00:07:47,440 --> 00:07:50,920 Speaker 1: right the Supreme Court has sort of reaffirmed and reasserted 142 00:07:51,000 --> 00:07:54,360 Speaker 1: that this is a federal power and that U. States 143 00:07:54,520 --> 00:07:57,560 Speaker 1: cannot regulate immigration. And in this case, the argument would be, 144 00:07:57,600 --> 00:08:01,400 Speaker 1: they can't regulate immigration, uh when the federal government tries 145 00:08:01,440 --> 00:08:04,120 Speaker 1: to sort of delegate that power to them. In fact, 146 00:08:04,120 --> 00:08:05,960 Speaker 1: we have a more recent decision. It didn't get to 147 00:08:05,960 --> 00:08:08,680 Speaker 1: the Supreme Court, but it was decided most recently in 148 00:08:08,720 --> 00:08:12,320 Speaker 1: the Fourth Circuit, and this was when the Trump administration 149 00:08:12,840 --> 00:08:17,280 Speaker 1: gave veto power to states and localities whether with regard 150 00:08:17,360 --> 00:08:21,400 Speaker 1: to refugees that would be settled within those states and localities. Um, 151 00:08:21,520 --> 00:08:24,720 Speaker 1: so not exactly an agreement, but nonetheless the policy was 152 00:08:24,800 --> 00:08:27,640 Speaker 1: that unless the state or locality agreed to accept refugees, 153 00:08:27,640 --> 00:08:30,520 Speaker 1: they wouldn't put any refugees there. And that was challenge 154 00:08:30,560 --> 00:08:33,480 Speaker 1: again again, you know, on the basis that this goes 155 00:08:33,520 --> 00:08:36,600 Speaker 1: against congressional statute and goes against the sort of power 156 00:08:36,679 --> 00:08:39,439 Speaker 1: that's delegated to the agency. And most recently the Four 157 00:08:39,480 --> 00:08:42,400 Speaker 1: Circuits found that to say that, you know, the statue 158 00:08:42,440 --> 00:08:45,319 Speaker 1: says that you must consult but does not allow you 159 00:08:45,400 --> 00:08:49,360 Speaker 1: to make your decisions on the basis or delegate those 160 00:08:49,400 --> 00:08:52,600 Speaker 1: decisions to the states or localities. And essentially they argued, 161 00:08:52,640 --> 00:08:54,960 Speaker 1: that's what these comministration is trying to do. So we 162 00:08:55,040 --> 00:08:58,560 Speaker 1: seem to have you known earlier attempt Uh. That might 163 00:08:58,640 --> 00:09:01,880 Speaker 1: also be of concert quints in the enforcement of this 164 00:09:01,920 --> 00:09:05,960 Speaker 1: specific agree there might be an objection because Ken Cucinelli 165 00:09:06,559 --> 00:09:12,600 Speaker 1: signed this as senior official performing duties of deputy secretary, 166 00:09:12,880 --> 00:09:15,440 Speaker 1: and so did he have legal authority to even sign 167 00:09:15,520 --> 00:09:18,920 Speaker 1: it or is it a violation of the Federal Vacancies 168 00:09:18,960 --> 00:09:22,680 Speaker 1: Reform Act. Yeah, that's that's absolutely correct. And of course 169 00:09:22,720 --> 00:09:27,200 Speaker 1: there's been other litigation about actions taken by Crichinelli on 170 00:09:27,240 --> 00:09:31,200 Speaker 1: the basis that he does not actually have the power 171 00:09:31,840 --> 00:09:34,880 Speaker 1: to hold that office or to find the department right 172 00:09:34,920 --> 00:09:37,880 Speaker 1: that he's uh, he's overseeing, right or or not oversee 173 00:09:37,920 --> 00:09:40,880 Speaker 1: I guess under the law. So that does raise another issue, 174 00:09:41,160 --> 00:09:42,840 Speaker 1: and I would think that you know, even on top 175 00:09:42,880 --> 00:09:45,000 Speaker 1: of that right to enter into the agreement to make 176 00:09:45,040 --> 00:09:48,359 Speaker 1: this particular policy. This reminds me of the DACA reversal 177 00:09:48,480 --> 00:09:51,319 Speaker 1: that the Supreme Court also reverse recently. Right, I mean, 178 00:09:51,320 --> 00:09:53,600 Speaker 1: this came out of the blue. It's not clear there 179 00:09:53,640 --> 00:09:57,720 Speaker 1: was much consultation, much sort of you know agency certainly 180 00:09:57,760 --> 00:10:01,880 Speaker 1: not standard agency rulemaking in this particular case. So not 181 00:10:01,920 --> 00:10:04,679 Speaker 1: only is it does originally have the power, but is 182 00:10:04,720 --> 00:10:08,360 Speaker 1: the process that he went through in this case also problematic. 183 00:10:08,600 --> 00:10:11,280 Speaker 1: It makes sense as a last minute sort of last 184 00:10:11,320 --> 00:10:14,000 Speaker 1: minute bomb, I think were less for the Biden administration, 185 00:10:14,080 --> 00:10:15,920 Speaker 1: But from a legal manner, this is not how we 186 00:10:15,960 --> 00:10:20,040 Speaker 1: usually imagine agencies operating. Getting back to the judge's order, 187 00:10:20,400 --> 00:10:23,880 Speaker 1: what about your quibbles? Tell us what your quibbles are. Now, 188 00:10:24,000 --> 00:10:26,839 Speaker 1: it is important to note that although certainly most law 189 00:10:26,960 --> 00:10:32,360 Speaker 1: enforcement offices and prosecutors have prosecutorial discretion, it is important 190 00:10:32,360 --> 00:10:35,959 Speaker 1: to note that Congress has limited that discretion somewhat when 191 00:10:35,960 --> 00:10:39,200 Speaker 1: it comes to immigration. Essentially, what it says is that 192 00:10:39,320 --> 00:10:42,120 Speaker 1: the Congress has said that once a final order of 193 00:10:42,160 --> 00:10:46,560 Speaker 1: removal has been issued and besausted all the appeals, that 194 00:10:46,640 --> 00:10:49,120 Speaker 1: the government shall with the court. In fact, that shall 195 00:10:49,240 --> 00:10:52,160 Speaker 1: remove the individual within ninety days. There's some small exceptions, 196 00:10:52,160 --> 00:10:54,960 Speaker 1: but they don't fly here. Now. On the face, it 197 00:10:55,000 --> 00:10:57,040 Speaker 1: does seem like as the court said that the one 198 00:10:57,320 --> 00:11:00,480 Speaker 1: day pause would violate that provision. The reason why how 199 00:11:00,480 --> 00:11:03,679 Speaker 1: to equipbal was because if you read the memo carefully. 200 00:11:03,760 --> 00:11:08,080 Speaker 1: The memo actually does provide an exception or individuals who 201 00:11:08,120 --> 00:11:11,400 Speaker 1: may be subject to this ninety days shall be removed provision, 202 00:11:11,840 --> 00:11:15,520 Speaker 1: and says that individuals who maybe have to be removed 203 00:11:15,520 --> 00:11:18,200 Speaker 1: as a matter of law should be exempted from the policy. 204 00:11:18,320 --> 00:11:21,439 Speaker 1: So it actually seems to me that the policy itself 205 00:11:21,559 --> 00:11:24,920 Speaker 1: accommodate this particular law, at least in the way that 206 00:11:24,920 --> 00:11:27,839 Speaker 1: it will be implemented. Of course, this is very early 207 00:11:27,880 --> 00:11:29,360 Speaker 1: on the challenge, right, so we don't even have a 208 00:11:29,400 --> 00:11:31,600 Speaker 1: case where they violated that law that we can point to. 209 00:11:32,040 --> 00:11:36,360 Speaker 1: So it seems interesting that the court would enjoin or 210 00:11:36,400 --> 00:11:39,839 Speaker 1: at least restraint the entire memo, even though the memo 211 00:11:40,040 --> 00:11:43,000 Speaker 1: doesn't seem to violate this precision that they're pointing to. 212 00:11:43,120 --> 00:11:46,120 Speaker 1: So again, I'm assuming that in further rounds this might 213 00:11:46,160 --> 00:11:47,760 Speaker 1: come up. I don't know if the court will sort 214 00:11:47,760 --> 00:11:50,040 Speaker 1: of unraveled, but at least for my reading, it seems 215 00:11:50,040 --> 00:11:54,040 Speaker 1: to be actually in compliance with that law. Can I 216 00:11:54,200 --> 00:11:58,319 Speaker 1: judge in Victoria, Texas forced the federal government to take 217 00:11:58,520 --> 00:12:03,880 Speaker 1: affirmative action guarding immigration, forced the federal government to deport people. 218 00:12:04,480 --> 00:12:08,160 Speaker 1: This is the sort of million dollar question here, you know, 219 00:12:08,280 --> 00:12:12,280 Speaker 1: any comparison drawn with regard to the nationwide injunctions issued 220 00:12:12,280 --> 00:12:15,560 Speaker 1: against the Trump administration kind of buckles a little bit here, 221 00:12:15,720 --> 00:12:18,839 Speaker 1: because the injunction in those other cases, most injunctions against 222 00:12:18,840 --> 00:12:21,280 Speaker 1: the government is to prevent them from doing something right, 223 00:12:21,320 --> 00:12:23,920 Speaker 1: just sort of maintain whether you're doing But this actually 224 00:12:24,080 --> 00:12:27,320 Speaker 1: is different. Presumably at what Texas wants is actually to 225 00:12:27,440 --> 00:12:31,320 Speaker 1: force the federal government to continue to do deportation. Now, 226 00:12:31,480 --> 00:12:33,839 Speaker 1: what I think here is that it's not entirely clear 227 00:12:33,880 --> 00:12:36,559 Speaker 1: that even the means of the order or the rational 228 00:12:36,640 --> 00:12:40,280 Speaker 1: behind the order can actually force that affirmative actions happen. Now, 229 00:12:40,320 --> 00:12:43,240 Speaker 1: it could be then to buy the administration just says, okay, 230 00:12:43,440 --> 00:12:47,040 Speaker 1: the policy is restrained, but that doesn't necessarily mean that 231 00:12:47,080 --> 00:12:49,920 Speaker 1: we are forced in every case, and are you exercise 232 00:12:50,000 --> 00:12:53,720 Speaker 1: the discretion to remove everyone immediately? And in my opinion, 233 00:12:53,800 --> 00:12:56,160 Speaker 1: it doesn't seem like the restraining order on the policy 234 00:12:56,280 --> 00:13:00,000 Speaker 1: would actually get that far. So the Judge Tipton said, 235 00:13:00,200 --> 00:13:03,960 Speaker 1: nationwide injunctions of executive action are a topic of fierce 236 00:13:04,000 --> 00:13:08,160 Speaker 1: and ongoing debate. Even so we issued a nationwide injunction. 237 00:13:08,600 --> 00:13:11,760 Speaker 1: This is in some ways going to be an interesting 238 00:13:11,840 --> 00:13:16,280 Speaker 1: play out because obviously the criticism during the Trump administration 239 00:13:16,480 --> 00:13:20,760 Speaker 1: when nationwide injunctions would be issued against Trump administration policies. Uh, 240 00:13:20,880 --> 00:13:23,040 Speaker 1: the most of the criticism was from the right and 241 00:13:23,280 --> 00:13:26,960 Speaker 1: conservative leaning judges. Right now, they made their claim sort 242 00:13:26,960 --> 00:13:29,320 Speaker 1: of broadley, you know, sort of in terms of federal 243 00:13:29,360 --> 00:13:33,520 Speaker 1: power and the power of small distrectport that forum shopping, uh, 244 00:13:33,600 --> 00:13:36,560 Speaker 1: and the ability for you know, sort of a very 245 00:13:36,559 --> 00:13:40,520 Speaker 1: early preliminary injunctions to sort of pause federal policy. Well, 246 00:13:40,520 --> 00:13:43,240 Speaker 1: now the tables turned, and it seems like to fight 247 00:13:43,320 --> 00:13:46,200 Speaker 1: all those concerns that were raised before that certainly at 248 00:13:46,280 --> 00:13:50,120 Speaker 1: least wouldwards a disjudge and Texas interests. Uh. They seem 249 00:13:50,160 --> 00:13:53,160 Speaker 1: to be following into the same exact or playbook. What 250 00:13:53,240 --> 00:13:56,480 Speaker 1: I'm curious about the debate over nationwide injunctions is now 251 00:13:56,520 --> 00:13:59,760 Speaker 1: that the administrations have changed, you know, will the Supreme 252 00:13:59,800 --> 00:14:03,760 Speaker 1: Court are or even less they conservative jurists suddenly change 253 00:14:03,800 --> 00:14:07,280 Speaker 1: their minds or are they going to continue which seems 254 00:14:07,280 --> 00:14:09,679 Speaker 1: to be where they were headed this sort of principle 255 00:14:09,840 --> 00:14:13,319 Speaker 1: that they were headed towards, which is disfavoring nationwide injunctions, 256 00:14:13,920 --> 00:14:17,680 Speaker 1: especially when it affects national federal government policies. So I 257 00:14:17,679 --> 00:14:19,280 Speaker 1: think that's the way to be seen right as part 258 00:14:19,360 --> 00:14:21,080 Speaker 1: of this ship going to rule on this or some 259 00:14:21,160 --> 00:14:23,920 Speaker 1: sort of principles, um, and I would say the track 260 00:14:23,960 --> 00:14:26,760 Speaker 1: record has not been so great for my opinion as 261 00:14:26,760 --> 00:14:29,440 Speaker 1: a person that tries to commit to sort of these 262 00:14:29,440 --> 00:14:32,560 Speaker 1: principles and teach my students, you know, neutral principles of law. 263 00:14:33,240 --> 00:14:35,400 Speaker 1: But I'd be interested in what the Supreme Court actually 264 00:14:35,440 --> 00:14:39,160 Speaker 1: does with regard to this kind of reversal and partisan power. 265 00:14:40,480 --> 00:14:44,200 Speaker 1: Biden is issuing a lot of executive orders with regard 266 00:14:44,240 --> 00:14:49,640 Speaker 1: to immigration. Can Republican attorneys general attack those orders in 267 00:14:49,680 --> 00:14:55,640 Speaker 1: the same way and stop his immigration reforms in that way? Yeah, 268 00:14:55,760 --> 00:14:58,840 Speaker 1: So there's sort of two things I think this order suggest. 269 00:14:58,960 --> 00:15:02,400 Speaker 1: I certainly believe if they actually have some sort of 270 00:15:02,440 --> 00:15:05,440 Speaker 1: favor ruling, which again I will still commit to, I 271 00:15:05,480 --> 00:15:08,840 Speaker 1: don't see how on the agreement, Uh, then there would 272 00:15:08,840 --> 00:15:11,800 Speaker 1: be broad range attacks on all sorts of things on 273 00:15:11,960 --> 00:15:15,360 Speaker 1: this particular order. However, though you know a Texas scot 274 00:15:15,440 --> 00:15:18,560 Speaker 1: it's first win if you will, it seems like it's 275 00:15:18,680 --> 00:15:22,000 Speaker 1: still easily worked around that. I think a lot of 276 00:15:22,000 --> 00:15:26,040 Speaker 1: the executive orders in general, but certain agency actions in 277 00:15:26,120 --> 00:15:29,240 Speaker 1: immigration would be able to avoid it. So, for example, 278 00:15:29,400 --> 00:15:33,040 Speaker 1: in avoiding this uh ninety days. That's just one aspect 279 00:15:33,040 --> 00:15:36,120 Speaker 1: of deportation. This doesn't affect what the border law policy 280 00:15:36,520 --> 00:15:38,680 Speaker 1: or even policies on whether or not to bring charges 281 00:15:38,760 --> 00:15:42,040 Speaker 1: against the individual for removal, or whether to stay or removal, 282 00:15:42,080 --> 00:15:45,120 Speaker 1: all those are still in play. Second, the argument that 283 00:15:45,200 --> 00:15:47,880 Speaker 1: was raised here, which again I don't actually think the 284 00:15:47,880 --> 00:15:51,000 Speaker 1: memo explains that much better this that that that most 285 00:15:51,000 --> 00:15:53,360 Speaker 1: agency actions does. But at least with regard to the 286 00:15:53,440 --> 00:15:57,000 Speaker 1: argument here, that's arbitrary and caprecious because it wasn't sufficiently explained. 287 00:15:57,640 --> 00:16:00,400 Speaker 1: The funny thing about the January twenty memo is actually 288 00:16:00,400 --> 00:16:02,920 Speaker 1: it was a precursor to a guidance coming out of 289 00:16:03,000 --> 00:16:06,120 Speaker 1: February one. It's interesting that both Texas and the Court 290 00:16:06,160 --> 00:16:08,240 Speaker 1: didn't even wait for the February first guidance, but I 291 00:16:08,320 --> 00:16:11,440 Speaker 1: understand politically why. But it couldn't really be easily that 292 00:16:11,480 --> 00:16:13,800 Speaker 1: once the February first guidance comes out and has more 293 00:16:13,800 --> 00:16:17,840 Speaker 1: time to explain why the hundred day pausits necessary, or 294 00:16:17,960 --> 00:16:20,480 Speaker 1: once a hundred days are over, another policy to come 295 00:16:20,520 --> 00:16:24,360 Speaker 1: out to explain the priorities of the ongoing administration, that 296 00:16:24,440 --> 00:16:27,040 Speaker 1: at least that second issue that the Court down here 297 00:16:27,240 --> 00:16:29,960 Speaker 1: would go away. This could go away on February one. 298 00:16:30,040 --> 00:16:31,360 Speaker 1: I mean, I don't know what the court will rule, 299 00:16:31,440 --> 00:16:33,640 Speaker 1: but it seems to be something that they find administration 300 00:16:33,680 --> 00:16:36,640 Speaker 1: can do, which is just offer a fuller explanation, which 301 00:16:36,640 --> 00:16:39,600 Speaker 1: in this case I think they're both uh willing and 302 00:16:39,720 --> 00:16:42,040 Speaker 1: more capable of doing than it seemed like with the 303 00:16:42,080 --> 00:16:44,960 Speaker 1: recission of Daka, where the Trump intstress just seemed actually 304 00:16:45,000 --> 00:16:49,160 Speaker 1: really disclined to give a policy rationale for that, probably 305 00:16:49,160 --> 00:16:51,920 Speaker 1: because of the weird politics behind. So now this is 306 00:16:51,960 --> 00:16:54,800 Speaker 1: a temporary restraining order. The judge is going to hold 307 00:16:54,840 --> 00:16:59,320 Speaker 1: a hearing on a preliminary injunction since part of it 308 00:16:59,560 --> 00:17:03,120 Speaker 1: of the very restraining orders of finding that Texas would 309 00:17:03,160 --> 00:17:06,000 Speaker 1: succeed in a temporary injunction. It does it seem as 310 00:17:06,000 --> 00:17:07,959 Speaker 1: if a temporary injunction is the next thing that's going 311 00:17:08,000 --> 00:17:13,600 Speaker 1: to happen. It seems to be um my only sort 312 00:17:13,640 --> 00:17:16,639 Speaker 1: of you know, has anization. But the only thing I'm 313 00:17:16,680 --> 00:17:20,120 Speaker 1: waiting to see is whether or not both the government 314 00:17:20,440 --> 00:17:24,840 Speaker 1: and the court decides to wait for the February first 315 00:17:24,840 --> 00:17:27,480 Speaker 1: guidance to come out, because I think it is very 316 00:17:27,520 --> 00:17:31,960 Speaker 1: possible that at least the the fight administration can use 317 00:17:31,960 --> 00:17:35,479 Speaker 1: the February first guidance to address the concerns that were 318 00:17:35,560 --> 00:17:40,080 Speaker 1: raised in issuing the temporary restraining order. Um, certainly, I 319 00:17:40,080 --> 00:17:42,119 Speaker 1: think the Court can move fast again and try to 320 00:17:42,560 --> 00:17:45,640 Speaker 1: get the preliminary injunction out before the February first guidance. 321 00:17:45,960 --> 00:17:47,480 Speaker 1: I think as a matter of principle, I don't see 322 00:17:47,480 --> 00:17:50,560 Speaker 1: why he would, But I think, you know, if you 323 00:17:50,600 --> 00:17:52,800 Speaker 1: were to wait for the February first guidance that h 324 00:17:52,920 --> 00:17:54,560 Speaker 1: it may be that they can get around it. But 325 00:17:54,760 --> 00:17:56,800 Speaker 1: then again, you know, given how fast that the Court 326 00:17:56,840 --> 00:17:59,160 Speaker 1: has moved, and given how fast would have Texas wants 327 00:17:59,200 --> 00:18:02,400 Speaker 1: to celebrate this, Uh, it may be that even if 328 00:18:02,440 --> 00:18:05,840 Speaker 1: there were further guidance provided that addresses is that the 329 00:18:05,880 --> 00:18:09,400 Speaker 1: Court will still issue a preliminary injunction. Uh. If anything, 330 00:18:09,440 --> 00:18:13,280 Speaker 1: just the whole Biden administration. One thing to note here, 331 00:18:13,800 --> 00:18:17,119 Speaker 1: UH is that the agreement itself that's so controversial was 332 00:18:17,160 --> 00:18:21,760 Speaker 1: intended to hold off Biden administration changes for six months. 333 00:18:22,280 --> 00:18:24,600 Speaker 1: What I'm seeing now is even if the agreement is 334 00:18:24,680 --> 00:18:28,040 Speaker 1: unenforceable at the end, these kind of legal maneuvers that 335 00:18:28,080 --> 00:18:31,520 Speaker 1: they're doing, like that Texas doing made through preliminary injunction 336 00:18:31,680 --> 00:18:36,399 Speaker 1: and just litigation time hold up Biden administration changes or 337 00:18:36,400 --> 00:18:39,720 Speaker 1: at least try to for six months achieving the same goal. 338 00:18:39,880 --> 00:18:43,160 Speaker 1: But through this sort of procedure of litigation, and even 339 00:18:43,200 --> 00:18:45,480 Speaker 1: if these cases end up losing at the circuit level 340 00:18:45,600 --> 00:18:48,080 Speaker 1: or the Supreme Court level, they would have had that 341 00:18:48,119 --> 00:18:51,720 Speaker 1: block which seemed to be their goal, uh, more than 342 00:18:51,760 --> 00:18:56,000 Speaker 1: necessarily getting a particular policy in places. Interesting, if a 343 00:18:56,080 --> 00:18:59,960 Speaker 1: preliminary injunction is issued, one assumes that the Biden administration 344 00:19:00,000 --> 00:19:03,480 Speaker 1: and will appeal, that they'll be appealing to the Fifth Circuit, 345 00:19:03,600 --> 00:19:07,080 Speaker 1: which is the most conservative circuit in the country. I 346 00:19:07,160 --> 00:19:14,880 Speaker 1: believe yes, Are they likely to find an unfriendly court there? Yeah, 347 00:19:15,160 --> 00:19:17,919 Speaker 1: this again I think is hard to say, right, I mean, 348 00:19:17,960 --> 00:19:21,240 Speaker 1: I certainly think in terms of policy. I think in 349 00:19:21,359 --> 00:19:24,680 Speaker 1: terms of you know, sort of understanding or preferences with 350 00:19:24,800 --> 00:19:28,000 Speaker 1: our immigration policy, I think the first ticket would be 351 00:19:28,880 --> 00:19:33,040 Speaker 1: generally considerable unfavorable um And then you know, maybe the 352 00:19:33,040 --> 00:19:36,000 Speaker 1: appeal goes up to the Supreme Court. On the other hand, 353 00:19:36,119 --> 00:19:38,840 Speaker 1: you know, it does raise this question of you know, 354 00:19:39,119 --> 00:19:42,560 Speaker 1: our circuit court judges or even the Supreme Court justices 355 00:19:43,000 --> 00:19:46,720 Speaker 1: going to stick to a long term strategy, right, and 356 00:19:46,800 --> 00:19:52,520 Speaker 1: they're concerned about nationwide injunction, uh in sort of sort 357 00:19:52,520 --> 00:19:55,560 Speaker 1: of trying to tamp them down. Um. So I think 358 00:19:55,560 --> 00:19:57,800 Speaker 1: in some ways it's not just the sort of partisan 359 00:19:57,920 --> 00:20:00,479 Speaker 1: leaning of the judges that may be assigned to the panel, 360 00:20:01,200 --> 00:20:03,840 Speaker 1: but also whether or not, despite their partisan leaning, are 361 00:20:03,840 --> 00:20:05,920 Speaker 1: they going to be thinking in a short term partisan 362 00:20:06,000 --> 00:20:09,080 Speaker 1: perspective or a long term uh sort of you know, 363 00:20:09,119 --> 00:20:11,320 Speaker 1: what do we actually want to see in terms of 364 00:20:11,359 --> 00:20:15,480 Speaker 1: what courts can do regardless of who's uh an administration. 365 00:20:15,720 --> 00:20:18,560 Speaker 1: When at that particular point when the Supreme Court have 366 00:20:18,600 --> 00:20:21,800 Speaker 1: a hard time though, when in cases like the you know, 367 00:20:21,880 --> 00:20:25,480 Speaker 1: the Muslim band, they finally allowed that to go through, 368 00:20:25,840 --> 00:20:28,320 Speaker 1: and yeah, this is not something for the States, this 369 00:20:28,440 --> 00:20:31,080 Speaker 1: is a federal government issue. Yeah, I mean I think 370 00:20:31,160 --> 00:20:33,680 Speaker 1: that's going to be the test. And when I talked 371 00:20:33,720 --> 00:20:36,600 Speaker 1: about the February first guidance or what the Biden administration 372 00:20:36,640 --> 00:20:38,679 Speaker 1: mad to do sort of going forward, I mean, we 373 00:20:38,720 --> 00:20:42,200 Speaker 1: have to remember the Muslim Land that the Supreme Court 374 00:20:42,240 --> 00:20:45,119 Speaker 1: review was version three. Right, they had tried once and 375 00:20:45,119 --> 00:20:47,240 Speaker 1: then they tried again, and then did a third one 376 00:20:47,280 --> 00:20:49,239 Speaker 1: with all these explanations, and it was the third one 377 00:20:49,280 --> 00:20:52,560 Speaker 1: that passed. Right. So I was assuming even for this case, 378 00:20:52,680 --> 00:20:54,639 Speaker 1: you know, it's not going to be this memo that 379 00:20:54,680 --> 00:20:57,919 Speaker 1: will ultimately reviewed. Right. What will be reviewed is, you know, 380 00:20:58,160 --> 00:21:00,919 Speaker 1: either the February first guidance or some other further guidance 381 00:21:00,960 --> 00:21:04,000 Speaker 1: that comes down the road. Presumably if the Supreme Court 382 00:21:04,080 --> 00:21:08,520 Speaker 1: stix to with you know, uh precedent, Uh, it would 383 00:21:08,560 --> 00:21:11,040 Speaker 1: review that third one. And you know, just you need 384 00:21:11,040 --> 00:21:13,600 Speaker 1: to offer an explanation. Is actually not that hard to 385 00:21:13,600 --> 00:21:16,720 Speaker 1: do if you're willing to offer the explanation, right. Um, 386 00:21:16,760 --> 00:21:18,800 Speaker 1: So it would appear to me that if it does 387 00:21:18,840 --> 00:21:21,760 Speaker 1: go that far, that just like the Muslim van uh, 388 00:21:21,920 --> 00:21:25,040 Speaker 1: that the Biden administration will prevail here. But let's not 389 00:21:25,040 --> 00:21:28,160 Speaker 1: also forget it was a long road to the Supreme Court, 390 00:21:28,480 --> 00:21:30,760 Speaker 1: and the Supreme Court can choose whether or not to 391 00:21:30,800 --> 00:21:33,160 Speaker 1: take a case or not. So it could be again, 392 00:21:33,160 --> 00:21:36,080 Speaker 1: if it's a delayed tactic that you know, similar results 393 00:21:36,080 --> 00:21:39,960 Speaker 1: can be produced just buying the delay of the litigation. Um. 394 00:21:40,040 --> 00:21:41,800 Speaker 1: One day, we're going to see similar between the Biden 395 00:21:41,800 --> 00:21:44,680 Speaker 1: administration and the Trump administration. Is the Trump administration kept 396 00:21:44,720 --> 00:21:48,440 Speaker 1: trying to accelerate its cases and facing these district court 397 00:21:48,800 --> 00:21:51,160 Speaker 1: injunctions and try to get out of the Supreme Court 398 00:21:51,200 --> 00:21:54,399 Speaker 1: as fast as possible. Um and although there were criticism 399 00:21:54,400 --> 00:21:56,280 Speaker 1: against that in terms of you know, lighting and go 400 00:21:56,359 --> 00:21:59,320 Speaker 1: through the regular process. I suspect Biden administration is going 401 00:21:59,359 --> 00:22:02,160 Speaker 1: to feel the name if the same tactic and strategy 402 00:22:02,200 --> 00:22:04,879 Speaker 1: has been used as Texas is doing here to hold 403 00:22:05,000 --> 00:22:08,679 Speaker 1: up a lot of these agency decisions from going forward. 404 00:22:09,600 --> 00:22:12,240 Speaker 1: Do you see this lawsuit and the agreement as an 405 00:22:12,280 --> 00:22:16,080 Speaker 1: indication that the tug of war over immigration is going 406 00:22:16,119 --> 00:22:20,200 Speaker 1: to continue in the Biden administration. I think what's important 407 00:22:20,200 --> 00:22:23,080 Speaker 1: about this agreement and the setup that it creates is 408 00:22:23,200 --> 00:22:26,320 Speaker 1: that it's set up a roadmap in which future Biden 409 00:22:26,440 --> 00:22:30,320 Speaker 1: administration policies on immigration is going to be facing a 410 00:22:30,320 --> 00:22:33,840 Speaker 1: wave of state attorney general is really suing on any 411 00:22:33,960 --> 00:22:36,800 Speaker 1: small change, And I see this as essentially the set 412 00:22:36,880 --> 00:22:39,720 Speaker 1: up as the immigration hawks in the Duke is retreating 413 00:22:39,760 --> 00:22:42,720 Speaker 1: to state attorneys generals and to the state level, So 414 00:22:42,920 --> 00:22:46,719 Speaker 1: we're likely to see another wave of state federal litigation again. 415 00:22:46,760 --> 00:22:49,440 Speaker 1: Whether or not they succeed or not, it is important, 416 00:22:49,480 --> 00:22:53,040 Speaker 1: I believe, as political messaging and as sort of showing 417 00:22:53,160 --> 00:22:55,680 Speaker 1: that there is a challenge to the federal government and 418 00:22:55,720 --> 00:22:58,480 Speaker 1: to the Biden administration. It seems similar to what the 419 00:22:58,520 --> 00:23:03,280 Speaker 1: Democratic attorneys General did during the Trump administration. Interesting, it's 420 00:23:03,280 --> 00:23:06,320 Speaker 1: certainly not limited to immigration, but I think immigration you 421 00:23:06,359 --> 00:23:09,240 Speaker 1: have an interesting development. You know, when the federal government 422 00:23:09,280 --> 00:23:13,119 Speaker 1: became dependent and in some ways reliant on state local 423 00:23:13,160 --> 00:23:17,240 Speaker 1: participation for immigration enforcement, what they also opened up is 424 00:23:17,280 --> 00:23:20,640 Speaker 1: a sphere of immigration debates that is no longer limited 425 00:23:20,720 --> 00:23:23,399 Speaker 1: to the halls of Congress or the decision makers and 426 00:23:23,480 --> 00:23:26,919 Speaker 1: lawmakers and federal government. So in some ways, the solicitation 427 00:23:27,000 --> 00:23:30,919 Speaker 1: for assistance now has changed the framework for immigration debates 428 00:23:30,960 --> 00:23:34,240 Speaker 1: so that whether it's Blue states and Republican read the 429 00:23:34,280 --> 00:23:38,119 Speaker 1: federal government or the reverse, that essentially immigration policy is 430 00:23:38,200 --> 00:23:42,480 Speaker 1: now always at the edge of the state and federal relationship. 431 00:23:42,600 --> 00:23:47,120 Speaker 1: So it's interesting how cooperation reliance has now built and 432 00:23:47,200 --> 00:23:49,840 Speaker 1: sort of reshaped the political landscape we're likely you're going 433 00:23:49,920 --> 00:23:52,800 Speaker 1: to see going forward under the bind administration, just as 434 00:23:52,800 --> 00:23:56,520 Speaker 1: we saw it in the reverse under the Trump administration. Rick, 435 00:23:56,600 --> 00:24:00,280 Speaker 1: where does DAKA stand right now? So dakas in a 436 00:24:00,480 --> 00:24:03,840 Speaker 1: strange position right So one thing to note is that, no, 437 00:24:04,160 --> 00:24:07,399 Speaker 1: the Supreme Court at least has not at this point 438 00:24:08,280 --> 00:24:13,720 Speaker 1: determined that DOCTA itself is legal or constitutional. What it 439 00:24:13,800 --> 00:24:16,840 Speaker 1: determined that was that Trump's trying to reverse it violated 440 00:24:16,920 --> 00:24:20,159 Speaker 1: the administrative procedure that but sort of UH did not 441 00:24:20,320 --> 00:24:23,000 Speaker 1: actually decide on that particular legal question of whether or 442 00:24:23,000 --> 00:24:26,000 Speaker 1: not data itself is legal. I suspect that we're going 443 00:24:26,040 --> 00:24:29,359 Speaker 1: to see another ways, and this particular lawsuit on this 444 00:24:29,440 --> 00:24:32,359 Speaker 1: agreement suggests that states are going to be active another 445 00:24:32,400 --> 00:24:35,320 Speaker 1: wave of litigation that challenges it at UH. And that 446 00:24:35,440 --> 00:24:38,280 Speaker 1: also makes sense that Biden, you know, even though he 447 00:24:38,359 --> 00:24:42,040 Speaker 1: is going to uphold DOCTA right now, that Biden's first 448 00:24:42,080 --> 00:24:46,760 Speaker 1: instinct right now is to get a bill to Congress. UH. Certainly, 449 00:24:46,840 --> 00:24:49,439 Speaker 1: his bill proposed is on a much bigger topic with 450 00:24:49,480 --> 00:24:53,480 Speaker 1: regard to immigration reform and unauthorized immigrants generally. But I 451 00:24:53,520 --> 00:24:56,440 Speaker 1: would suspect that within it is an attempt to if 452 00:24:56,440 --> 00:24:59,359 Speaker 1: you can't get that bigger reform, to get DOCCA and 453 00:24:59,520 --> 00:25:02,240 Speaker 1: Dream Act pass specifically. So that makes sense that he 454 00:25:02,240 --> 00:25:04,360 Speaker 1: wants a compersional organization because I think it is still 455 00:25:04,400 --> 00:25:07,000 Speaker 1: an open question, especially at the Supreme Court level, of 456 00:25:07,000 --> 00:25:10,359 Speaker 1: whether or not data itself UH is legal, a question 457 00:25:10,400 --> 00:25:13,919 Speaker 1: that they did not answer in the last case. What 458 00:25:14,000 --> 00:25:18,200 Speaker 1: are like some of the big points of immigration legislation 459 00:25:18,240 --> 00:25:22,719 Speaker 1: that Biden wants to pass so so in the latest proposal, 460 00:25:22,960 --> 00:25:26,400 Speaker 1: it's quite broad, so it's not limited to the Dreamers. 461 00:25:26,440 --> 00:25:31,600 Speaker 1: In fact, they would be closer to Reagan's um amnesty 462 00:25:31,600 --> 00:25:35,760 Speaker 1: provision in granting a pastic citizenship to almost everyone who 463 00:25:35,840 --> 00:25:38,479 Speaker 1: is an on the authorized immigrant who arrived before a 464 00:25:38,480 --> 00:25:41,480 Speaker 1: certain time. Uh, and of course has not been convicted 465 00:25:41,520 --> 00:25:44,400 Speaker 1: of a felony, has page of Texas and other sort 466 00:25:44,400 --> 00:25:47,400 Speaker 1: of provisions that go with it. But unlike let's say, 467 00:25:47,560 --> 00:25:50,480 Speaker 1: Data or the Dream Act, it's not limited to just 468 00:25:50,720 --> 00:25:54,040 Speaker 1: people who ride as children. UM. In some ways, this 469 00:25:54,119 --> 00:25:57,920 Speaker 1: is imagined to be a a reset, if you will, 470 00:25:58,440 --> 00:26:01,080 Speaker 1: of uh, you know, the fact that to to recognize 471 00:26:01,119 --> 00:26:05,160 Speaker 1: the fact that we've tolerated this growing population of unauthorized 472 00:26:05,200 --> 00:26:08,440 Speaker 1: immigrants who don't fit into any legal category, right, who 473 00:26:08,440 --> 00:26:11,160 Speaker 1: has been here for a long time but don't fit 474 00:26:11,280 --> 00:26:15,240 Speaker 1: into any sort of understanding of you know, either immigration 475 00:26:15,320 --> 00:26:18,520 Speaker 1: category or citizens, to sort of acknowledge that they are 476 00:26:18,520 --> 00:26:22,240 Speaker 1: in fact the facto sort of Americanism degree. UM. So 477 00:26:22,359 --> 00:26:25,159 Speaker 1: this seems to be a recognition of that. UM. I 478 00:26:25,200 --> 00:26:29,480 Speaker 1: think it's always that the strong opening gambit, right, UH, 479 00:26:29,520 --> 00:26:33,760 Speaker 1: because I believe, uh, even though there's been strong consensus 480 00:26:33,760 --> 00:26:38,720 Speaker 1: behind the Dreamers even among Republicans with regard to the 481 00:26:39,000 --> 00:26:43,280 Speaker 1: entire or you know, the majority of a notarius immigrants. Uh, 482 00:26:43,320 --> 00:26:46,960 Speaker 1: there's sharp divisions. They're based on party lines. Turning to 483 00:26:47,000 --> 00:26:51,760 Speaker 1: another immigration issue, the wall. First of all, is the 484 00:26:51,800 --> 00:26:56,040 Speaker 1: whole border walled off? Now? No? No, So the vast 485 00:26:56,080 --> 00:26:59,080 Speaker 1: majority of the wall construction was in areas that were 486 00:26:59,040 --> 00:27:03,119 Speaker 1: already sent um. So you know, he would say that 487 00:27:03,119 --> 00:27:05,400 Speaker 1: there were wall construction, but you know, others may argue 488 00:27:05,440 --> 00:27:08,480 Speaker 1: that there was sort of like rehabilitation or sort of reinforcement. 489 00:27:09,000 --> 00:27:11,119 Speaker 1: And of course, in some ways, in terms of the 490 00:27:11,240 --> 00:27:14,200 Speaker 1: new areas that the wall bill, my understanding is less 491 00:27:14,200 --> 00:27:16,840 Speaker 1: than a hundred miles at this particular point. Right. So 492 00:27:17,200 --> 00:27:19,520 Speaker 1: in some ways, in terms of the areas that have 493 00:27:19,800 --> 00:27:22,760 Speaker 1: been um, you know, sort of fenced or walled, it 494 00:27:22,920 --> 00:27:27,840 Speaker 1: actually hasn't changed all that much of before the wall 495 00:27:27,840 --> 00:27:30,480 Speaker 1: construction to after the wall construction. Right, even though the 496 00:27:30,520 --> 00:27:32,719 Speaker 1: areas that are fenced now I don't have been reinforced 497 00:27:32,720 --> 00:27:35,120 Speaker 1: with this particular wall. And the truth does that makes sense? 498 00:27:35,160 --> 00:27:37,240 Speaker 1: I mean there are areas that were not fenced, where 499 00:27:37,280 --> 00:27:41,520 Speaker 1: areas that were difficult defense and those difficulties still persisted. Um. 500 00:27:41,800 --> 00:27:44,960 Speaker 1: And in some ways that's what the Biden administration, in 501 00:27:45,040 --> 00:27:47,720 Speaker 1: canceling it is sort of suggesting that that those money 502 00:27:47,760 --> 00:27:50,760 Speaker 1: that we're uh sort of taken from other pots, the 503 00:27:50,840 --> 00:27:53,639 Speaker 1: most specifically Department of Defense, should not be sort of 504 00:27:53,680 --> 00:27:56,440 Speaker 1: spent in this particular manner, especially in the areas where 505 00:27:56,480 --> 00:28:00,200 Speaker 1: new wall construction would need quite expensive and not tie 506 00:28:00,240 --> 00:28:02,800 Speaker 1: was clear that they would be necessary. But in terms 507 00:28:02,840 --> 00:28:06,400 Speaker 1: of new wall construction or you know, really, I would 508 00:28:06,440 --> 00:28:10,040 Speaker 1: say since the Bush administration, it's you know, the areas 509 00:28:10,080 --> 00:28:13,120 Speaker 1: that have been walled has not been substantially increased under 510 00:28:13,160 --> 00:28:17,800 Speaker 1: the Trump industry. I've been reading about environmentalists complaining that, 511 00:28:18,119 --> 00:28:21,919 Speaker 1: you know, they're destroying environmental sites and they're doing things 512 00:28:21,960 --> 00:28:26,840 Speaker 1: that destroy the habitat for endangered species. Yeah, that's the 513 00:28:26,880 --> 00:28:29,440 Speaker 1: biggest concern right now. Right the new areas of wall 514 00:28:29,440 --> 00:28:31,919 Speaker 1: construction that they were moving on to that in Trump 515 00:28:32,040 --> 00:28:35,359 Speaker 1: sort of accelerated towards the end of his term, were 516 00:28:35,400 --> 00:28:38,000 Speaker 1: areas that were hard to build an areas that were 517 00:28:38,040 --> 00:28:43,160 Speaker 1: either private property or environmentally sensitive areas. UH. Certainly Trump 518 00:28:43,240 --> 00:28:49,400 Speaker 1: waived all sorts of environmental UH restrictions and UH and 519 00:28:49,480 --> 00:28:52,479 Speaker 1: checks in order to sort of accelerate it. Um So 520 00:28:52,560 --> 00:28:54,880 Speaker 1: in some ways. The interesting thing is a lot of 521 00:28:54,920 --> 00:28:57,760 Speaker 1: destruction happened in the last few months of the Trump 522 00:28:57,760 --> 00:29:01,400 Speaker 1: administration and accelerating this development. But it's not clear that 523 00:29:01,440 --> 00:29:04,280 Speaker 1: a wall would be built. So what we got actually 524 00:29:04,280 --> 00:29:07,040 Speaker 1: and why I think Biden was very aggressive in just 525 00:29:07,080 --> 00:29:09,959 Speaker 1: stopping work as soon as you can, was all this 526 00:29:10,080 --> 00:29:13,000 Speaker 1: destruction and all this effort that was going into it, 527 00:29:13,320 --> 00:29:16,080 Speaker 1: even though ultimately there's not gonna be any wall there, 528 00:29:16,160 --> 00:29:19,680 Speaker 1: but the destruction will still persist. Um. So that's what 529 00:29:19,800 --> 00:29:21,360 Speaker 1: they were moving into in terms of the areas of 530 00:29:21,400 --> 00:29:24,880 Speaker 1: new construction. So what invit stop it immediately? I mean, 531 00:29:24,960 --> 00:29:28,160 Speaker 1: my understanding there is that the work should have been 532 00:29:28,160 --> 00:29:30,680 Speaker 1: stopped immediately with regard to some of the more aggressive 533 00:29:30,720 --> 00:29:33,520 Speaker 1: work that was done, But there was a seven days. 534 00:29:33,560 --> 00:29:37,640 Speaker 1: I believe the ultimate pause cannot be beyond seven days, 535 00:29:37,680 --> 00:29:40,520 Speaker 1: so uh, it seemed to give the agencies that were 536 00:29:40,520 --> 00:29:44,000 Speaker 1: in charge of this some discretion within the seven days. 537 00:29:44,000 --> 00:29:46,320 Speaker 1: But my undersetting is that the order was sort of 538 00:29:46,360 --> 00:29:49,440 Speaker 1: as early as possible, but no later than seven days. Uh. 539 00:29:49,440 --> 00:29:52,360 Speaker 1: It's hard to figure right now out exactly how Department 540 00:29:52,400 --> 00:29:55,760 Speaker 1: Homeland Security is executing that executive order, but I think 541 00:29:55,800 --> 00:29:59,080 Speaker 1: Biden may clear that he wanted it, if all possible, 542 00:29:59,120 --> 00:30:02,160 Speaker 1: to be immediate and just provided the seven days as 543 00:30:02,600 --> 00:30:04,800 Speaker 1: a little bit of a great period. If you know 544 00:30:04,880 --> 00:30:08,840 Speaker 1: certain prices can't be stopped immediately or that, uh, you 545 00:30:08,880 --> 00:30:12,400 Speaker 1: can imagine right that, you know, certain things might have 546 00:30:12,520 --> 00:30:15,200 Speaker 1: to be kind of seen forward, because to stop immediately 547 00:30:15,240 --> 00:30:18,760 Speaker 1: maybe worse than to sort of, you know, finish whatever 548 00:30:18,800 --> 00:30:21,400 Speaker 1: they were doing in a situation. But but I see 549 00:30:21,440 --> 00:30:23,600 Speaker 1: my DJs was ordered to stop things that can be 550 00:30:23,600 --> 00:30:26,040 Speaker 1: stopped as early as possible. Thanks for being on the 551 00:30:26,080 --> 00:30:29,080 Speaker 1: Bloomberg Laws show. Rick that's Professor Rick Seu of the 552 00:30:29,160 --> 00:30:33,880 Speaker 1: University of North Carolina Law School. A high school football 553 00:30:33,960 --> 00:30:36,560 Speaker 1: coach insists that he has the right to kneel down 554 00:30:36,640 --> 00:30:39,320 Speaker 1: and pray on the fifty yard line after a game, 555 00:30:39,680 --> 00:30:42,600 Speaker 1: and he's taken his case to the Supreme Court once already. 556 00:30:43,280 --> 00:30:45,880 Speaker 1: Now the Ninth Circuit Court of Appeals will discide whether 557 00:30:45,960 --> 00:30:49,200 Speaker 1: Joe Kennedy's prayer is the sort of private religious act 558 00:30:49,240 --> 00:30:52,960 Speaker 1: protected by the Constitution's free speech clause, or whether the 559 00:30:52,960 --> 00:30:55,560 Speaker 1: prayer at the focal point of a public school event 560 00:30:56,040 --> 00:30:58,600 Speaker 1: is the kind of public speech the school district has 561 00:30:58,600 --> 00:31:01,760 Speaker 1: the right to restrict. The lawsuit against the Washington State 562 00:31:01,840 --> 00:31:05,560 Speaker 1: School District could clarify and shape the workplace free speech 563 00:31:05,680 --> 00:31:09,440 Speaker 1: rights of millions of coaches, teachers, and other public employees 564 00:31:09,480 --> 00:31:12,880 Speaker 1: of all faiths. In the circuit joining me is Stephanie Barkley, 565 00:31:13,000 --> 00:31:16,800 Speaker 1: professor at Notre Dame Law School. If this were done 566 00:31:16,800 --> 00:31:20,200 Speaker 1: in a classroom, what he did on the field, is 567 00:31:20,240 --> 00:31:24,280 Speaker 1: it clear that it would not be protected speech. So 568 00:31:24,480 --> 00:31:28,040 Speaker 1: if a teacher were to offer a prayer in the 569 00:31:28,080 --> 00:31:32,360 Speaker 1: classroom in a way that is, you know, really pressuring 570 00:31:32,560 --> 00:31:36,760 Speaker 1: or coercing students to participate, then the Supreme Courts case 571 00:31:36,840 --> 00:31:40,600 Speaker 1: laws definitely suggests that that would violate the Establishment Clause. 572 00:31:40,720 --> 00:31:43,520 Speaker 1: It's not clear, though, however, that if the teachers, sitting 573 00:31:43,560 --> 00:31:46,320 Speaker 1: at their desk at the front of the classroom set 574 00:31:46,320 --> 00:31:49,200 Speaker 1: a quiet prayer over their lunch, for example, that that 575 00:31:49,200 --> 00:31:53,680 Speaker 1: would violate the Establishment clause. And Justice Alito analogize what 576 00:31:53,760 --> 00:31:55,960 Speaker 1: the coach in this case is doing too, sort of 577 00:31:56,160 --> 00:31:59,000 Speaker 1: a quiet private prayer of that type. So, even within 578 00:31:59,040 --> 00:32:04,360 Speaker 1: the classroom where Establishment Clause protections are heightened, it's not 579 00:32:04,480 --> 00:32:08,520 Speaker 1: as though the rules clearly is that a teacher must 580 00:32:08,520 --> 00:32:13,480 Speaker 1: be precluded from doing anything religious. So explain what the 581 00:32:13,560 --> 00:32:18,080 Speaker 1: coaches argument is he has a few arguments that he's arguing. 582 00:32:18,320 --> 00:32:21,920 Speaker 1: First of all, that there's no captive audience. When he 583 00:32:22,040 --> 00:32:27,040 Speaker 1: goes to pray at the fifty yards line after a 584 00:32:27,080 --> 00:32:28,960 Speaker 1: game to just sort of give thanks for how the 585 00:32:29,000 --> 00:32:33,160 Speaker 1: game went. He's not requiring anyone to participate the audience. 586 00:32:33,200 --> 00:32:35,360 Speaker 1: He isn't stuck there in the way that students are 587 00:32:35,360 --> 00:32:37,520 Speaker 1: in a classroom, and so some of the course of 588 00:32:37,600 --> 00:32:40,480 Speaker 1: elements that we worry about in the classroom just don't 589 00:32:40,480 --> 00:32:44,000 Speaker 1: apply in this particular context. And he's also arguing about 590 00:32:45,440 --> 00:32:48,200 Speaker 1: the sort of slip Reslow arguments on the other side 591 00:32:48,240 --> 00:32:52,720 Speaker 1: that if anything is teacher or coach does any time 592 00:32:52,720 --> 00:32:55,360 Speaker 1: there was an eye side of students, then that's going 593 00:32:55,400 --> 00:32:58,800 Speaker 1: to count as something that's within their official job capacities. 594 00:32:58,840 --> 00:33:03,280 Speaker 1: That that really crowds out the ability for individuals and 595 00:33:03,320 --> 00:33:06,520 Speaker 1: these positions to have any sort of religious exercise or 596 00:33:06,560 --> 00:33:11,200 Speaker 1: to act consistent with their faith. So the school district says, 597 00:33:11,280 --> 00:33:14,800 Speaker 1: in part in its response that it would be violating 598 00:33:15,200 --> 00:33:19,240 Speaker 1: the First Amendment prohibition against state establishment of religion if 599 00:33:19,240 --> 00:33:23,600 Speaker 1: it allowed these prayers to go on. Well, some of 600 00:33:23,600 --> 00:33:27,640 Speaker 1: the Supreme Court president of the establishment clause dating back 601 00:33:27,680 --> 00:33:33,040 Speaker 1: to Okay called Everson is concerned about ways in which 602 00:33:33,280 --> 00:33:39,320 Speaker 1: government might use power of education over impressionable students when 603 00:33:39,320 --> 00:33:42,440 Speaker 1: they're in situations where they can be pressured or course 604 00:33:42,520 --> 00:33:47,120 Speaker 1: to do things, to participate in different sorts of religious exercise. 605 00:33:47,280 --> 00:33:51,040 Speaker 1: And so there's a case a lot about not coercing 606 00:33:51,080 --> 00:33:55,000 Speaker 1: students to pray in school or to participate in other 607 00:33:55,040 --> 00:34:00,720 Speaker 1: sorts of religious activities. And so the school is analogizing, 608 00:34:00,720 --> 00:34:03,400 Speaker 1: appointing to some of that case law and saying here, 609 00:34:03,440 --> 00:34:06,400 Speaker 1: if we allowed this sort of activity by the coach 610 00:34:06,440 --> 00:34:09,719 Speaker 1: to go forward, then we'd be running into some of 611 00:34:09,760 --> 00:34:13,800 Speaker 1: those prohibitions where the Supreme Court has interpreted the establishment clause. 612 00:34:14,480 --> 00:34:18,640 Speaker 1: So is the school basically afraid of getting sued by parents? 613 00:34:20,400 --> 00:34:23,240 Speaker 1: I think that that that is a concern that they're raising. 614 00:34:23,760 --> 00:34:25,560 Speaker 1: Whether or not the parents would win or that would 615 00:34:25,600 --> 00:34:28,360 Speaker 1: actually be a strong claim as a different question, but 616 00:34:28,440 --> 00:34:31,200 Speaker 1: that's certainly the sort of argument that they're making because 617 00:34:31,280 --> 00:34:34,759 Speaker 1: that they could run into other sorts of prohibitions on 618 00:34:34,800 --> 00:34:38,239 Speaker 1: the other side if they are too permissive or accommodating 619 00:34:38,239 --> 00:34:42,200 Speaker 1: of this coach. Where does it play in that he's 620 00:34:42,239 --> 00:34:46,680 Speaker 1: a coach in a position of authority and when he 621 00:34:46,760 --> 00:34:50,160 Speaker 1: praised in the middle of the field, his athletes may 622 00:34:50,239 --> 00:34:54,560 Speaker 1: feel pressured to pray with him. I think that was 623 00:34:54,600 --> 00:34:56,799 Speaker 1: one of the things that the Supreme Court was suggesting. 624 00:34:57,840 --> 00:35:01,399 Speaker 1: This case went up to the Supreme Court previously, and 625 00:35:01,520 --> 00:35:04,319 Speaker 1: the Supreme Court denied for Frary, and then it went 626 00:35:04,560 --> 00:35:07,360 Speaker 1: back down to the Ninth Circuit. And one of the 627 00:35:07,400 --> 00:35:09,799 Speaker 1: reasons that the Supreme Court explained it was denying the case, 628 00:35:09,840 --> 00:35:12,680 Speaker 1: then it's because there were some factual issues that seemed 629 00:35:12,719 --> 00:35:18,279 Speaker 1: to be unresolved. So unresolved factual questions like was the 630 00:35:18,360 --> 00:35:22,480 Speaker 1: coach really on duty or not? Is this really sort 631 00:35:22,520 --> 00:35:26,920 Speaker 1: of part of his job performance, and I think the 632 00:35:27,040 --> 00:35:29,200 Speaker 1: facts that might be relevant to this question, or do 633 00:35:29,440 --> 00:35:34,000 Speaker 1: students actually feel pressured to to participate? Is there any 634 00:35:34,080 --> 00:35:37,560 Speaker 1: evidence of that, because that's something that the government can't 635 00:35:37,600 --> 00:35:40,040 Speaker 1: just sort of make a claim about that, you know, 636 00:35:40,080 --> 00:35:42,880 Speaker 1: they'd have to really back up that sort of an argument. 637 00:35:43,320 --> 00:35:46,240 Speaker 1: But the Supreme Court did seem concerned about the fact 638 00:35:46,239 --> 00:35:49,440 Speaker 1: that if a teacher, just because they're a role model 639 00:35:49,520 --> 00:35:52,080 Speaker 1: or just because students look at them a teacher a 640 00:35:52,120 --> 00:35:55,439 Speaker 1: coach can't engage in any outward manifestation of religious space. 641 00:35:55,600 --> 00:35:59,160 Speaker 1: That would be a pretty remarkable expansion of the law 642 00:35:59,200 --> 00:36:01,760 Speaker 1: in a way that at least just as Aldo was suggesting, 643 00:36:01,760 --> 00:36:04,480 Speaker 1: would be problematic. This case has been going on for 644 00:36:04,560 --> 00:36:08,799 Speaker 1: some time. Stephanie, tell us what's been happening procedurally, right, So, 645 00:36:08,920 --> 00:36:12,879 Speaker 1: when he was first bringing this case, it was um 646 00:36:13,880 --> 00:36:17,759 Speaker 1: based on the school district decision to let him go 647 00:36:17,840 --> 00:36:21,240 Speaker 1: because he was giving a prayer um at the fifty 648 00:36:21,320 --> 00:36:23,840 Speaker 1: yards length. And there's some history about what had led 649 00:36:23,920 --> 00:36:25,560 Speaker 1: up to that prayer, but we can talk about that later. 650 00:36:25,600 --> 00:36:27,920 Speaker 1: But so that was appealed to the Ninth Circuit and 651 00:36:27,960 --> 00:36:31,120 Speaker 1: he last then it was appealed to the Supreme Court, 652 00:36:31,160 --> 00:36:33,160 Speaker 1: and all of this is sort of in a preliminary 653 00:36:33,239 --> 00:36:36,239 Speaker 1: procedural posture. The Supreme Court said there were too many 654 00:36:36,280 --> 00:36:39,480 Speaker 1: factual issues to take the case, that they were concerned 655 00:36:39,520 --> 00:36:42,000 Speaker 1: about the way that the Ninth Circuit had described the 656 00:36:42,080 --> 00:36:44,440 Speaker 1: legal standard, and they sent it back. So now the 657 00:36:44,480 --> 00:36:48,879 Speaker 1: case has traveled again through a district court proceeding. There 658 00:36:48,920 --> 00:36:51,719 Speaker 1: was just a oral argument at the Ninth Circuit this 659 00:36:51,800 --> 00:36:55,680 Speaker 1: week about the case, and then we'll see if if 660 00:36:55,719 --> 00:36:58,920 Speaker 1: they rule against him, then I imagine he'll probably applied 661 00:36:58,960 --> 00:37:01,400 Speaker 1: as a suprememporting and and if they rule for him, 662 00:37:01,440 --> 00:37:03,640 Speaker 1: then it will be a question of whether the school 663 00:37:03,640 --> 00:37:06,040 Speaker 1: board wants to appeal to the Supreme Court or not, 664 00:37:06,120 --> 00:37:09,200 Speaker 1: and of course review at the Supreme Court's discretionary so 665 00:37:09,600 --> 00:37:11,560 Speaker 1: the court can decide whether it wants to take that case. 666 00:37:12,080 --> 00:37:16,720 Speaker 1: During the proceedings below, did he explain why he had 667 00:37:16,760 --> 00:37:21,200 Speaker 1: to pray at the fifty yard line after the game 668 00:37:21,280 --> 00:37:25,600 Speaker 1: while their players on the field, so that his attorney 669 00:37:25,640 --> 00:37:27,840 Speaker 1: was asked about that in oral argument and and just 670 00:37:27,920 --> 00:37:31,480 Speaker 1: described his religious beliefs for that he needed to immediately 671 00:37:31,560 --> 00:37:36,160 Speaker 1: give gratitude um for the game. He was willing to 672 00:37:36,440 --> 00:37:40,000 Speaker 1: wait until all the players exited the field um, and 673 00:37:40,040 --> 00:37:43,120 Speaker 1: so you know, there was no need for him to 674 00:37:43,160 --> 00:37:46,120 Speaker 1: be in view of the players. He said he would 675 00:37:46,120 --> 00:37:50,200 Speaker 1: have been okay even waiting like five minutes um. And 676 00:37:51,600 --> 00:37:53,400 Speaker 1: for a number of years he had agreed with the 677 00:37:53,480 --> 00:37:58,560 Speaker 1: request from the school district not to say any prayers 678 00:37:58,719 --> 00:38:01,080 Speaker 1: where students were particip the painting or we're doing it 679 00:38:01,120 --> 00:38:03,560 Speaker 1: at the same time as him, you know, some of 680 00:38:03,600 --> 00:38:07,640 Speaker 1: his students or athletes. So I'm that that was just 681 00:38:07,680 --> 00:38:10,200 Speaker 1: the way that he described his religious belief that the 682 00:38:10,560 --> 00:38:13,840 Speaker 1: school board asked him basically did to the prayer at 683 00:38:13,840 --> 00:38:16,000 Speaker 1: a different times somewhere else, and he says that would 684 00:38:16,040 --> 00:38:19,120 Speaker 1: just be contrary to what he felt compelled to do 685 00:38:19,239 --> 00:38:22,840 Speaker 1: to show gratitude to God. So, now listening to the 686 00:38:22,960 --> 00:38:27,560 Speaker 1: Ninth Circuit arguments, were there any issues that the judges 687 00:38:27,600 --> 00:38:31,480 Speaker 1: were particularly focused on. The judges were focused on a 688 00:38:31,520 --> 00:38:33,680 Speaker 1: few things that I thought were interesting. That there was 689 00:38:33,760 --> 00:38:36,360 Speaker 1: a lot of trying to make sure they understood the 690 00:38:36,480 --> 00:38:42,040 Speaker 1: timeline and UM, making sure that they knew whether or 691 00:38:42,040 --> 00:38:46,239 Speaker 1: not there has been any coercion of students involved, or 692 00:38:46,239 --> 00:38:48,799 Speaker 1: were they they had felt coerced because that's relevant to 693 00:38:48,880 --> 00:38:52,640 Speaker 1: some of the establishment cluster as prudent and so UM 694 00:38:52,840 --> 00:38:57,600 Speaker 1: Coach Kennedy's lawyer was arguing that, you know, after he 695 00:38:57,640 --> 00:39:00,239 Speaker 1: had received the request from the school district years ago 696 00:39:00,520 --> 00:39:03,759 Speaker 1: not to involve students, he had confided that, UM, there 697 00:39:03,760 --> 00:39:06,880 Speaker 1: are no clear complaints that are focused on his behavior, 698 00:39:07,760 --> 00:39:10,560 Speaker 1: and after that, he's having the prayer on his own, 699 00:39:10,680 --> 00:39:14,360 Speaker 1: not involving students, and UH, and the court was just 700 00:39:14,400 --> 00:39:17,960 Speaker 1: trying to make sure they understood the student involvement and 701 00:39:18,000 --> 00:39:20,960 Speaker 1: how that that might affect their experience at the school. 702 00:39:21,200 --> 00:39:23,920 Speaker 1: They were also interested in, UH, some the other claims 703 00:39:23,960 --> 00:39:27,799 Speaker 1: that coach Kennedy brought under the Free exercise class and 704 00:39:28,000 --> 00:39:31,279 Speaker 1: under Title seven that he was being discriminated against for 705 00:39:31,400 --> 00:39:34,359 Speaker 1: his religious leaves. And the judges seemed interested in trying 706 00:39:34,360 --> 00:39:38,319 Speaker 1: to figure out had the school board actually tried to 707 00:39:38,360 --> 00:39:41,840 Speaker 1: offer an accommodation, had they actually been protective as his 708 00:39:41,880 --> 00:39:45,160 Speaker 1: religious leaves um? And was the rules that the school 709 00:39:45,160 --> 00:39:48,440 Speaker 1: board had espoused in its communication with the coach too 710 00:39:48,480 --> 00:39:51,600 Speaker 1: broad such that it would have really troubling effects on 711 00:39:51,719 --> 00:39:55,040 Speaker 1: basically stripping any sort of public employee of their ability 712 00:39:55,080 --> 00:39:58,200 Speaker 1: to practice their religion at all anytime they were in 713 00:39:58,280 --> 00:40:04,120 Speaker 1: view of students. So one of the judges, Judge Morgan Christian, said, 714 00:40:04,760 --> 00:40:08,080 Speaker 1: I strained to see this being a brief, personal, private 715 00:40:08,080 --> 00:40:12,960 Speaker 1: prayer because the coach had expressed his plans and media 716 00:40:13,040 --> 00:40:17,600 Speaker 1: interviews and social media posts and talks to local churches. 717 00:40:18,160 --> 00:40:21,239 Speaker 1: How did that question He seems like he's expressing his 718 00:40:21,280 --> 00:40:26,520 Speaker 1: opinion there. Yeah, And that was that was definitely an 719 00:40:26,560 --> 00:40:31,120 Speaker 1: important part of the argument. The attorney's response there was that, um, 720 00:40:31,200 --> 00:40:34,280 Speaker 1: you know, private in the sense that he's not including 721 00:40:34,320 --> 00:40:38,360 Speaker 1: the student, he's not, um, you know, trying to include 722 00:40:38,360 --> 00:40:41,280 Speaker 1: other members of the audience. There has the media about 723 00:40:41,400 --> 00:40:44,600 Speaker 1: him defending his right to continue to do that and 724 00:40:44,640 --> 00:40:48,680 Speaker 1: so he's trying to, in the court of law and 725 00:40:48,719 --> 00:40:51,280 Speaker 1: the court of public opinion, try to defend his ability 726 00:40:51,320 --> 00:40:54,720 Speaker 1: to continue. But that doesn't mean that the prayer itself. 727 00:40:54,840 --> 00:40:57,600 Speaker 1: He's trying to make it a spectacle. And we know 728 00:40:57,680 --> 00:41:00,840 Speaker 1: that this is the panel that refe used to grant 729 00:41:01,480 --> 00:41:04,080 Speaker 1: t r O, which is a different standard. But still, 730 00:41:04,520 --> 00:41:07,960 Speaker 1: did you see the court leaning in any direction? I 731 00:41:08,000 --> 00:41:10,759 Speaker 1: think that the court is gonna be probably engaged in 732 00:41:10,760 --> 00:41:13,520 Speaker 1: a pretty fact specific analysis here. And there were a 733 00:41:13,560 --> 00:41:17,400 Speaker 1: couple of times where the court was describing what they 734 00:41:17,440 --> 00:41:20,160 Speaker 1: thought the timeline had been or what involvement of students 735 00:41:20,160 --> 00:41:23,640 Speaker 1: had been, and sometimes attorneys on both sides were correcting 736 00:41:23,680 --> 00:41:25,800 Speaker 1: them and pointing them to other areas in the record. 737 00:41:25,880 --> 00:41:28,759 Speaker 1: So I think the court's ruling is likely going to 738 00:41:28,800 --> 00:41:31,319 Speaker 1: focus on whether or not when they go back and 739 00:41:31,360 --> 00:41:34,360 Speaker 1: look at that record evidence, the photos, the videos, and 740 00:41:34,400 --> 00:41:37,880 Speaker 1: i'm in the declarations from students, doesn't seem like there 741 00:41:38,040 --> 00:41:42,640 Speaker 1: is some sort of actual coercion going on here or not. Um, 742 00:41:42,680 --> 00:41:45,239 Speaker 1: I think it's likely that we'll see a ruling in 743 00:41:45,239 --> 00:41:47,920 Speaker 1: that vein. I'm not sure if they will address if 744 00:41:47,920 --> 00:41:51,719 Speaker 1: you're exercise or the title seven arguments at much length. 745 00:41:52,320 --> 00:41:54,239 Speaker 1: But I think that's those fair important part of the case, 746 00:41:54,239 --> 00:41:57,200 Speaker 1: and one that the Supreme Court for Justices at the 747 00:41:57,200 --> 00:42:00,120 Speaker 1: Supreme Court when this came at last time, signaled that 748 00:42:00,120 --> 00:42:02,799 Speaker 1: that they're interested in and they think um would have 749 00:42:02,840 --> 00:42:05,960 Speaker 1: had enough merit that would have been worthwhile to consider. 750 00:42:06,000 --> 00:42:09,080 Speaker 1: The last time around, you mentioned that before the court 751 00:42:09,120 --> 00:42:12,799 Speaker 1: the Supreme Court didn't take the case, but explained that 752 00:42:12,880 --> 00:42:18,160 Speaker 1: opinion by Justice Alito and who joined in it. That's right. 753 00:42:18,280 --> 00:42:21,239 Speaker 1: So the Court declined to take the case on this 754 00:42:21,520 --> 00:42:24,200 Speaker 1: free speech grounds because they said that there were some 755 00:42:24,600 --> 00:42:27,319 Speaker 1: a lot of factual issues about whether or not he 756 00:42:27,360 --> 00:42:30,040 Speaker 1: was on duty or off duty, or what exactly was 757 00:42:30,080 --> 00:42:33,400 Speaker 1: sort of involved in the scope of his teaching, and 758 00:42:33,800 --> 00:42:39,279 Speaker 1: what the school district was requiring surrounding that. So that's 759 00:42:39,280 --> 00:42:42,799 Speaker 1: what they were saying about the speech claim. But that's 760 00:42:42,800 --> 00:42:45,520 Speaker 1: why they denied the cert petition. At least, this is 761 00:42:45,520 --> 00:42:49,560 Speaker 1: what Justice Alito's um concurring opinion said. But Justice Lado said, 762 00:42:49,840 --> 00:42:55,000 Speaker 1: no party has asked us to consider whether the district court, 763 00:42:55,640 --> 00:42:58,680 Speaker 1: or excuse me, the school district was also violating Title seven, 764 00:42:59,200 --> 00:43:02,120 Speaker 1: or the Free Exercise Clause in the First Amendment of 765 00:43:02,120 --> 00:43:06,160 Speaker 1: the Federal Constitution. And indicated that there was some interest 766 00:43:06,280 --> 00:43:11,040 Speaker 1: in considering those issues. And then um, there were three 767 00:43:11,040 --> 00:43:14,840 Speaker 1: other justices that joined on to that opinion. So just 768 00:43:14,880 --> 00:43:17,319 Speaker 1: suppose this case goes up to the Supreme Court that 769 00:43:17,400 --> 00:43:20,839 Speaker 1: seems to indicate there are at least four justices on 770 00:43:20,880 --> 00:43:24,279 Speaker 1: the Coaches side. Let's say put it colloquially on the 771 00:43:24,280 --> 00:43:28,040 Speaker 1: Coaches side, and then you also have Justice Amy Coney Barrett. 772 00:43:28,080 --> 00:43:33,000 Speaker 1: And this is a court that is very protective of 773 00:43:33,480 --> 00:43:36,960 Speaker 1: religious rights and seems to in the last few years, 774 00:43:37,000 --> 00:43:41,080 Speaker 1: even before Justice Barrett lean in the direction of religious rights. 775 00:43:41,160 --> 00:43:43,839 Speaker 1: Do you have any doubt that they would consider that 776 00:43:44,360 --> 00:43:49,160 Speaker 1: this was within the coaches religious freedoms? I think what 777 00:43:49,200 --> 00:43:53,520 Speaker 1: we can say with confidence is that the Court seems 778 00:43:53,560 --> 00:43:58,000 Speaker 1: interested in reviewing those claims very carefully. I think the 779 00:43:58,000 --> 00:44:01,080 Speaker 1: Court would I want to make sure that they understood 780 00:44:01,080 --> 00:44:04,239 Speaker 1: some of those facts that they had questions about last time. Um, 781 00:44:05,120 --> 00:44:09,160 Speaker 1: And you know, I can't predict necessarily how they would rule, 782 00:44:09,239 --> 00:44:11,880 Speaker 1: but I do think that they would not rule the 783 00:44:11,920 --> 00:44:14,920 Speaker 1: way that they were concerned. The Ninth Circuit had been 784 00:44:14,960 --> 00:44:18,719 Speaker 1: sort of leaning towards previously that that any time a 785 00:44:18,800 --> 00:44:21,920 Speaker 1: public employee is in view of students, they can't do 786 00:44:21,960 --> 00:44:25,759 Speaker 1: anything religious such that a teacher would even get in 787 00:44:25,840 --> 00:44:28,400 Speaker 1: hot water if they set a private prayer over their 788 00:44:28,440 --> 00:44:30,440 Speaker 1: lunch and view of students. So I think what we 789 00:44:30,480 --> 00:44:33,239 Speaker 1: can confidently say is that sort of ruling is out 790 00:44:33,280 --> 00:44:36,360 Speaker 1: of bounds, and that the Print Court would if this 791 00:44:36,440 --> 00:44:38,880 Speaker 1: case made it up to the Supreme Court again, the 792 00:44:38,920 --> 00:44:40,600 Speaker 1: Sprint Court will pay a lot of attention to those 793 00:44:40,640 --> 00:44:44,080 Speaker 1: other claims involving not just history speech tripes, but his 794 00:44:44,600 --> 00:44:47,480 Speaker 1: pre exercise rights um and his rights under Title seven. 795 00:44:47,640 --> 00:44:51,000 Speaker 1: Thanks for being the Bloomberg Laws Stephanie. That's Stephanie Barkley, 796 00:44:51,080 --> 00:44:53,680 Speaker 1: a professor at the University of Notre Dame Law School. 797 00:44:53,840 --> 00:44:56,560 Speaker 1: And that's it for the sedition of the Bloomberg Law Podcast. 798 00:44:56,760 --> 00:44:59,920 Speaker 1: I'm June Grosso. Thanks so much for listening, and remember 799 00:45:00,000 --> 00:45:02,000 Speaker 1: you can always get the latest legal news on our 800 00:45:02,000 --> 00:45:05,640 Speaker 1: Bloomberg Laump podcast. You can find them on Apple Podcasts, 801 00:45:05,680 --> 00:45:10,000 Speaker 1: Spotify and wherever you get your favorite podcasts. You're listening 802 00:45:10,040 --> 00:45:10,719 Speaker 1: to Bloomberg