WEBVTT - Texas Roadblock to Biden's Deportation Pause 0:00:00.480 --> 0:00:05.720 You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:06.400 --> 0:00:10.959 President Joe Biden promised an ambitious immigration agenda during the campaign. 0:00:11.560 --> 0:00:13.520 Within a hundred days, I'm going to send to the 0:00:13.600 --> 0:00:17.800 United States Congress a pathway to citizenship for over eleven 0:00:17.840 --> 0:00:21.440 million undocumented people. But his first steps in that direction 0:00:21.640 --> 0:00:24.560 hit a legal roadblock put up by the state of Texas. 0:00:24.920 --> 0:00:27.080 In a sign of the many legal battles to come, 0:00:27.440 --> 0:00:30.880 Texas sued to stop the new administration's one hundred day 0:00:30.880 --> 0:00:35.360 pause on deportations of undocumented immigrants, and in a swift 0:00:35.479 --> 0:00:40.080 legal defeat for the administration, a Texas judge temporarily blocked 0:00:40.080 --> 0:00:44.120 the moratorium. Joining me as immigration law expert, Rick Sue, 0:00:44.280 --> 0:00:47.280 a professor at the University of North Carolina Law School, 0:00:47.680 --> 0:00:51.720 Rick this order by Judge Drew Tipton, a Trump appointee. 0:00:52.080 --> 0:00:56.120 Were you surprised that the judge issued this order so initially? 0:00:56.160 --> 0:00:59.160 I was surprised, right, because my understanding was that the 0:00:59.480 --> 0:01:02.600 challenge was primarily based on agreement, and I just thought 0:01:02.680 --> 0:01:05.840 that not only was the agreement really unenforceable, but that 0:01:05.959 --> 0:01:08.360 for the judge to rule so quickly on this without 0:01:08.440 --> 0:01:11.520 argument without sort of going through everything would be too quick. 0:01:11.760 --> 0:01:14.640 After reading it, though, I realized that the order was 0:01:14.680 --> 0:01:17.800 a lot more limited. It certainly did not address this 0:01:18.200 --> 0:01:22.440 unprecedented agreement between Texas and the federal government, but in 0:01:22.480 --> 0:01:25.479 some ways was more closely situated to something that we've 0:01:25.520 --> 0:01:28.120 seen a lot. This is based on the a p A. 0:01:28.319 --> 0:01:31.640 The Administrative Procedures Acts, a little statute. It seems to 0:01:31.720 --> 0:01:35.120 be following the same kind of strand that was used 0:01:35.120 --> 0:01:39.120 against the Trump administration with regards to the executive orders 0:01:39.120 --> 0:01:42.640 and policies that were issued under his administration. So explain 0:01:42.760 --> 0:01:46.399 the judge reasoning. So the judge is reasoning, Um, there 0:01:46.400 --> 0:01:49.040 were two points that he sort of laughs on too, 0:01:49.080 --> 0:01:51.720 because in order to even get a temporary restraining order, 0:01:51.760 --> 0:01:54.160 there has to be some sense that the party is 0:01:54.200 --> 0:01:56.600 likely to prevail on the merits. Not really data, they 0:01:56.600 --> 0:01:58.520 addressing the merits, but they have to address this sort 0:01:58.560 --> 0:02:01.360 of indirectly from that particular stand and the two points. 0:02:01.480 --> 0:02:06.320 One was that the one day pause violated a provision 0:02:06.600 --> 0:02:10.440 of the federal law on immigration, the Immigration Nationality Act, 0:02:10.760 --> 0:02:14.920 which actually requires individuals with final orders to deportation to 0:02:14.960 --> 0:02:18.160 be removed within ninety days. Right that certain individuals that 0:02:18.280 --> 0:02:20.680 within the pause would not be removed with the ninety days, 0:02:20.720 --> 0:02:23.079 and that this violates the federal law and therefore the 0:02:23.120 --> 0:02:26.040 policy that violates it would then be an Administrated Procedure 0:02:26.040 --> 0:02:27.960 Act problem. I'm having to talk about that because I 0:02:27.960 --> 0:02:29.640 think in some ways it might be a misreading of 0:02:29.680 --> 0:02:31.960 the memo, or at least in my opinions, But nonetheless, 0:02:32.040 --> 0:02:34.320 that's the first claim. The second claim that was made 0:02:34.480 --> 0:02:38.119 is actually similar to the Supreme Court case with regards 0:02:38.160 --> 0:02:41.840 to the Trump administration's efforts to roll back SOCCA. Now, 0:02:41.880 --> 0:02:44.360 if you call from that case, what the Supreme Court 0:02:44.400 --> 0:02:48.160 held was that the justification that was given was insufficient, 0:02:48.240 --> 0:02:51.240 There wasn't sufficient reason for why they were rolling back 0:02:51.280 --> 0:02:54.960 soccer their respective of the other issues around it. And 0:02:55.000 --> 0:02:56.920 in some ways they're making the same argument here that 0:02:57.120 --> 0:02:59.880 the explanation that was given for the need for one 0:03:00.080 --> 0:03:04.720 hundred day pause was not sufficiently articulated, was not satisfactory 0:03:04.800 --> 0:03:07.280 to the court, and for the Court thought that it 0:03:07.360 --> 0:03:11.000 was likely to be ruled arbitrary and capricious, which would 0:03:11.040 --> 0:03:14.280 violate the Administrative Procedure. That again, I have some quipples 0:03:14.320 --> 0:03:17.800 with that particular interpretation, but nonetheless these are at least 0:03:17.960 --> 0:03:20.960 rounded within things that we've seen before, as opposed to 0:03:21.000 --> 0:03:24.040 this agreement, which support itself said raises all sorts of 0:03:24.040 --> 0:03:26.400 constitutional questions, and he is not going to rule on 0:03:26.440 --> 0:03:29.359 that at this point. Just to clarify, the agreement you're 0:03:29.400 --> 0:03:33.320 referring to is won the Trump administration signed with conservative 0:03:33.440 --> 0:03:37.240 states in its final week. The Texas a g claims 0:03:37.280 --> 0:03:42.160 the Department of Homeland Security agreed to consult with Texas 0:03:42.200 --> 0:03:47.680 before making any changes to deportation regulations. How unusual would 0:03:47.720 --> 0:03:50.880 that be? So this is very unusual, not only this 0:03:51.000 --> 0:03:54.839 idea that the federal government would delegate right, this sort 0:03:54.880 --> 0:03:58.360 of obligation to both consult with a particular state or 0:03:58.400 --> 0:04:02.040 even a particular locality, but also even the obligation that 0:04:02.200 --> 0:04:04.760 in this particular agreement that they would hold off and 0:04:04.880 --> 0:04:07.920 making any decisions for six months. They would have to 0:04:07.960 --> 0:04:11.800 announce it, wait six months and get consultation. Clearly, this 0:04:11.880 --> 0:04:13.680 is a last minute sort of effort by the Trump 0:04:13.720 --> 0:04:17.560 administration to try to hamstring any policy changes by the 0:04:17.640 --> 0:04:21.000 Biden administration, and in this case, they're doing it through 0:04:21.040 --> 0:04:24.240 this agreement, through contract, not even through a policy or 0:04:24.279 --> 0:04:27.480 a statute. Personally, I don't see how this agreement that 0:04:27.600 --> 0:04:31.320 Texas is doing on would be enforceable, but it certainly 0:04:31.400 --> 0:04:34.599 sets up the general framework which is the kind of 0:04:34.680 --> 0:04:37.280 politics that we're going to see around immigrations and other 0:04:37.320 --> 0:04:40.720 issues going forward, which is state attorney generals and Republican 0:04:40.800 --> 0:04:44.120 states sort of taking up the mantles challenge of federal government. 0:04:44.760 --> 0:04:47.919 So the Justice Department lawyer said Texas is asking to 0:04:48.000 --> 0:04:51.760 run federal immigration law. Is that the basic argument that 0:04:51.800 --> 0:04:54.320 the Justice Department is going to put forward here? Or 0:04:54.360 --> 0:04:58.080 are there other arguments? Yeah, there's lots of arguments for 0:04:58.200 --> 0:05:01.320 why this agreement, this con practice, last minute contract that 0:05:01.400 --> 0:05:04.719 was signed by the outgoing Department Homeless Security is not enforceable. 0:05:05.040 --> 0:05:06.760 But I think that Justice Department is right in this 0:05:06.839 --> 0:05:09.360 sort of broader cases. All these arguments sort of circle 0:05:09.400 --> 0:05:15.040 around the idea that the federal government cannot delegate or relinquish, 0:05:15.200 --> 0:05:19.360 you know, some sovereign power over policy, either the executive 0:05:19.480 --> 0:05:21.719 in terms of their discretion or even the whole federal 0:05:21.720 --> 0:05:24.320 government in terms of making policy to a state. I mean, 0:05:24.440 --> 0:05:26.680 you know, to go through some of the many arguments, right, 0:05:26.720 --> 0:05:29.400 I mean, one is whether or not the Department Homeless 0:05:29.400 --> 0:05:32.640 Security can even enter into this agreement to bind the 0:05:32.680 --> 0:05:35.880 federal government or bind a future administration, as the Trump 0:05:35.920 --> 0:05:38.440 minister is trying to do. The agency only has the 0:05:38.520 --> 0:05:41.640 power that is delegated to Congress. And I can't find 0:05:41.680 --> 0:05:45.200 any particular delegation by statute that allows to be just 0:05:45.520 --> 0:05:48.679 to bind its own power or even find the federal 0:05:48.720 --> 0:05:51.159 government in this way not to men do that. But 0:05:51.600 --> 0:05:54.359 we're talking about doing this through contract, and we have 0:05:54.400 --> 0:05:57.800 to remember that contract is not usually how governmental policies 0:05:57.839 --> 0:06:00.400 are made. It's to be made through statute. And in fact, 0:06:00.480 --> 0:06:03.720 the federal government has sovereign immunity. You can't usually sue 0:06:03.720 --> 0:06:06.440 the federal government unless it gives permission for that suit 0:06:06.800 --> 0:06:10.600 in contract or towards um. And in this particular case, uh, 0:06:10.880 --> 0:06:14.000 you know, there has this provisions to allow certain suits 0:06:14.040 --> 0:06:17.640 on contract for government contracts where services are good, but 0:06:17.720 --> 0:06:20.880 not for this kind of policy contract or how policy 0:06:20.880 --> 0:06:24.880 do you get made? Third, even if it was delegated, right, 0:06:24.960 --> 0:06:28.080 even if you know somehow Congress allows this kind of 0:06:28.120 --> 0:06:31.960 binding greed to made um, this could run a foul 0:06:32.000 --> 0:06:34.520 of just the basic non delegation doctrine, right, which is 0:06:34.560 --> 0:06:37.840 to say that there are just certain responsibilities and powers 0:06:38.200 --> 0:06:40.360 when it comes to immigration, we know it's an exclusive 0:06:40.400 --> 0:06:44.120 federal responsibility. It's just you know, these powers can't be delegated, right, 0:06:44.160 --> 0:06:46.679 You can't just sort of take a bunch of federal 0:06:46.680 --> 0:06:49.680 government powers and then through contract delegated to a state 0:06:50.240 --> 0:06:54.680 or delegated heck to presumably contract to like a private industry. Uh. 0:06:54.720 --> 0:06:57.240 These are powers that the government has, uh, And there 0:06:57.240 --> 0:07:00.000 are processes by whiches are changed. But to sort of 0:07:00.120 --> 0:07:02.960 stripped that kind of power, that sovereignty and give it 0:07:03.000 --> 0:07:06.200 to another institution, this kind of delegation has ever been tried. 0:07:06.240 --> 0:07:08.760 But even other types of delegations have run to foul 0:07:08.800 --> 0:07:11.960 the non delegation doctorate or separation of powers issues or 0:07:12.000 --> 0:07:15.560 federalism issues. So this runs without all these um uh 0:07:15.640 --> 0:07:18.720 and even just the basic idea of the sovereign power 0:07:18.880 --> 0:07:22.600 of the federal government here be given to arguably a 0:07:22.720 --> 0:07:24.840 state and not even just a state to an attorney general. 0:07:24.920 --> 0:07:27.600 All these agreements just signed with attorney generals, right, which 0:07:27.760 --> 0:07:32.080 itself raises another set of hasn't The Supreme Court, the 0:07:32.240 --> 0:07:36.560 Roberts Court in particular, very much said that immigration is 0:07:36.560 --> 0:07:41.040 a federal matter, not the states. Yes, yeah, and not 0:07:41.200 --> 0:07:44.280 just I mean this is well established in uh sort 0:07:44.320 --> 0:07:47.360 of constitutional law by many Supreme courts, but even recently 0:07:47.440 --> 0:07:50.920 right the Supreme Court has sort of reaffirmed and reasserted 0:07:51.000 --> 0:07:54.360 that this is a federal power and that U. States 0:07:54.520 --> 0:07:57.560 cannot regulate immigration. And in this case, the argument would be, 0:07:57.600 --> 0:08:01.400 they can't regulate immigration, uh when the federal government tries 0:08:01.440 --> 0:08:04.120 to sort of delegate that power to them. In fact, 0:08:04.120 --> 0:08:05.960 we have a more recent decision. It didn't get to 0:08:05.960 --> 0:08:08.680 the Supreme Court, but it was decided most recently in 0:08:08.720 --> 0:08:12.320 the Fourth Circuit, and this was when the Trump administration 0:08:12.840 --> 0:08:17.280 gave veto power to states and localities whether with regard 0:08:17.360 --> 0:08:21.400 to refugees that would be settled within those states and localities. Um, 0:08:21.520 --> 0:08:24.720 so not exactly an agreement, but nonetheless the policy was 0:08:24.800 --> 0:08:27.640 that unless the state or locality agreed to accept refugees, 0:08:27.640 --> 0:08:30.520 they wouldn't put any refugees there. And that was challenge 0:08:30.560 --> 0:08:33.480 again again, you know, on the basis that this goes 0:08:33.520 --> 0:08:36.600 against congressional statute and goes against the sort of power 0:08:36.679 --> 0:08:39.439 that's delegated to the agency. And most recently the Four 0:08:39.480 --> 0:08:42.400 Circuits found that to say that, you know, the statue 0:08:42.440 --> 0:08:45.319 says that you must consult but does not allow you 0:08:45.400 --> 0:08:49.360 to make your decisions on the basis or delegate those 0:08:49.400 --> 0:08:52.600 decisions to the states or localities. And essentially they argued, 0:08:52.640 --> 0:08:54.960 that's what these comministration is trying to do. So we 0:08:55.040 --> 0:08:58.560 seem to have you known earlier attempt Uh. That might 0:08:58.640 --> 0:09:01.880 also be of concert quints in the enforcement of this 0:09:01.920 --> 0:09:05.960 specific agree there might be an objection because Ken Cucinelli 0:09:06.559 --> 0:09:12.600 signed this as senior official performing duties of deputy secretary, 0:09:12.880 --> 0:09:15.440 and so did he have legal authority to even sign 0:09:15.520 --> 0:09:18.920 it or is it a violation of the Federal Vacancies 0:09:18.960 --> 0:09:22.680 Reform Act. Yeah, that's that's absolutely correct. And of course 0:09:22.720 --> 0:09:27.200 there's been other litigation about actions taken by Crichinelli on 0:09:27.240 --> 0:09:31.200 the basis that he does not actually have the power 0:09:31.840 --> 0:09:34.880 to hold that office or to find the department right 0:09:34.920 --> 0:09:37.880 that he's uh, he's overseeing, right or or not oversee 0:09:37.920 --> 0:09:40.880 I guess under the law. So that does raise another issue, 0:09:41.160 --> 0:09:42.840 and I would think that you know, even on top 0:09:42.880 --> 0:09:45.000 of that right to enter into the agreement to make 0:09:45.040 --> 0:09:48.359 this particular policy. This reminds me of the DACA reversal 0:09:48.480 --> 0:09:51.319 that the Supreme Court also reverse recently. Right, I mean, 0:09:51.320 --> 0:09:53.600 this came out of the blue. It's not clear there 0:09:53.640 --> 0:09:57.720 was much consultation, much sort of you know agency certainly 0:09:57.760 --> 0:10:01.880 not standard agency rulemaking in this particular case. So not 0:10:01.920 --> 0:10:04.679 only is it does originally have the power, but is 0:10:04.720 --> 0:10:08.360 the process that he went through in this case also problematic. 0:10:08.600 --> 0:10:11.280 It makes sense as a last minute sort of last 0:10:11.320 --> 0:10:14.000 minute bomb, I think were less for the Biden administration, 0:10:14.080 --> 0:10:15.920 But from a legal manner, this is not how we 0:10:15.960 --> 0:10:20.040 usually imagine agencies operating. Getting back to the judge's order, 0:10:20.400 --> 0:10:23.880 what about your quibbles? Tell us what your quibbles are. Now, 0:10:24.000 --> 0:10:26.839 it is important to note that although certainly most law 0:10:26.960 --> 0:10:32.360 enforcement offices and prosecutors have prosecutorial discretion, it is important 0:10:32.360 --> 0:10:35.959 to note that Congress has limited that discretion somewhat when 0:10:35.960 --> 0:10:39.200 it comes to immigration. Essentially, what it says is that 0:10:39.320 --> 0:10:42.120 the Congress has said that once a final order of 0:10:42.160 --> 0:10:46.560 removal has been issued and besausted all the appeals, that 0:10:46.640 --> 0:10:49.120 the government shall with the court. In fact, that shall 0:10:49.240 --> 0:10:52.160 remove the individual within ninety days. There's some small exceptions, 0:10:52.160 --> 0:10:54.960 but they don't fly here. Now. On the face, it 0:10:55.000 --> 0:10:57.040 does seem like as the court said that the one 0:10:57.320 --> 0:11:00.480 day pause would violate that provision. The reason why how 0:11:00.480 --> 0:11:03.679 to equipbal was because if you read the memo carefully. 0:11:03.760 --> 0:11:08.080 The memo actually does provide an exception or individuals who 0:11:08.120 --> 0:11:11.400 may be subject to this ninety days shall be removed provision, 0:11:11.840 --> 0:11:15.520 and says that individuals who maybe have to be removed 0:11:15.520 --> 0:11:18.200 as a matter of law should be exempted from the policy. 0:11:18.320 --> 0:11:21.439 So it actually seems to me that the policy itself 0:11:21.559 --> 0:11:24.920 accommodate this particular law, at least in the way that 0:11:24.920 --> 0:11:27.839 it will be implemented. Of course, this is very early 0:11:27.880 --> 0:11:29.360 on the challenge, right, so we don't even have a 0:11:29.400 --> 0:11:31.600 case where they violated that law that we can point to. 0:11:32.040 --> 0:11:36.360 So it seems interesting that the court would enjoin or 0:11:36.400 --> 0:11:39.839 at least restraint the entire memo, even though the memo 0:11:40.040 --> 0:11:43.000 doesn't seem to violate this precision that they're pointing to. 0:11:43.120 --> 0:11:46.120 So again, I'm assuming that in further rounds this might 0:11:46.160 --> 0:11:47.760 come up. I don't know if the court will sort 0:11:47.760 --> 0:11:50.040 of unraveled, but at least for my reading, it seems 0:11:50.040 --> 0:11:54.040 to be actually in compliance with that law. Can I 0:11:54.200 --> 0:11:58.319 judge in Victoria, Texas forced the federal government to take 0:11:58.520 --> 0:12:03.880 affirmative action guarding immigration, forced the federal government to deport people. 0:12:04.480 --> 0:12:08.160 This is the sort of million dollar question here, you know, 0:12:08.280 --> 0:12:12.280 any comparison drawn with regard to the nationwide injunctions issued 0:12:12.280 --> 0:12:15.560 against the Trump administration kind of buckles a little bit here, 0:12:15.720 --> 0:12:18.839 because the injunction in those other cases, most injunctions against 0:12:18.840 --> 0:12:21.280 the government is to prevent them from doing something right, 0:12:21.320 --> 0:12:23.920 just sort of maintain whether you're doing But this actually 0:12:24.080 --> 0:12:27.320 is different. Presumably at what Texas wants is actually to 0:12:27.440 --> 0:12:31.320 force the federal government to continue to do deportation. Now, 0:12:31.480 --> 0:12:33.839 what I think here is that it's not entirely clear 0:12:33.880 --> 0:12:36.559 that even the means of the order or the rational 0:12:36.640 --> 0:12:40.280 behind the order can actually force that affirmative actions happen. Now, 0:12:40.320 --> 0:12:43.240 it could be then to buy the administration just says, okay, 0:12:43.440 --> 0:12:47.040 the policy is restrained, but that doesn't necessarily mean that 0:12:47.080 --> 0:12:49.920 we are forced in every case, and are you exercise 0:12:50.000 --> 0:12:53.720 the discretion to remove everyone immediately? And in my opinion, 0:12:53.800 --> 0:12:56.160 it doesn't seem like the restraining order on the policy 0:12:56.280 --> 0:13:00.000 would actually get that far. So the Judge Tipton said, 0:13:00.200 --> 0:13:03.960 nationwide injunctions of executive action are a topic of fierce 0:13:04.000 --> 0:13:08.160 and ongoing debate. Even so we issued a nationwide injunction. 0:13:08.600 --> 0:13:11.760 This is in some ways going to be an interesting 0:13:11.840 --> 0:13:16.280 play out because obviously the criticism during the Trump administration 0:13:16.480 --> 0:13:20.760 when nationwide injunctions would be issued against Trump administration policies. Uh, 0:13:20.880 --> 0:13:23.040 the most of the criticism was from the right and 0:13:23.280 --> 0:13:26.960 conservative leaning judges. Right now, they made their claim sort 0:13:26.960 --> 0:13:29.320 of broadley, you know, sort of in terms of federal 0:13:29.360 --> 0:13:33.520 power and the power of small distrectport that forum shopping, uh, 0:13:33.600 --> 0:13:36.560 and the ability for you know, sort of a very 0:13:36.559 --> 0:13:40.520 early preliminary injunctions to sort of pause federal policy. Well, 0:13:40.520 --> 0:13:43.240 now the tables turned, and it seems like to fight 0:13:43.320 --> 0:13:46.200 all those concerns that were raised before that certainly at 0:13:46.280 --> 0:13:50.120 least wouldwards a disjudge and Texas interests. Uh. They seem 0:13:50.160 --> 0:13:53.160 to be following into the same exact or playbook. What 0:13:53.240 --> 0:13:56.480 I'm curious about the debate over nationwide injunctions is now 0:13:56.520 --> 0:13:59.760 that the administrations have changed, you know, will the Supreme 0:13:59.800 --> 0:14:03.760 Court are or even less they conservative jurists suddenly change 0:14:03.800 --> 0:14:07.280 their minds or are they going to continue which seems 0:14:07.280 --> 0:14:09.679 to be where they were headed this sort of principle 0:14:09.840 --> 0:14:13.319 that they were headed towards, which is disfavoring nationwide injunctions, 0:14:13.920 --> 0:14:17.680 especially when it affects national federal government policies. So I 0:14:17.679 --> 0:14:19.280 think that's the way to be seen right as part 0:14:19.360 --> 0:14:21.080 of this ship going to rule on this or some 0:14:21.160 --> 0:14:23.920 sort of principles, um, and I would say the track 0:14:23.960 --> 0:14:26.760 record has not been so great for my opinion as 0:14:26.760 --> 0:14:29.440 a person that tries to commit to sort of these 0:14:29.440 --> 0:14:32.560 principles and teach my students, you know, neutral principles of law. 0:14:33.240 --> 0:14:35.400 But I'd be interested in what the Supreme Court actually 0:14:35.440 --> 0:14:39.160 does with regard to this kind of reversal and partisan power. 0:14:40.480 --> 0:14:44.200 Biden is issuing a lot of executive orders with regard 0:14:44.240 --> 0:14:49.640 to immigration. Can Republican attorneys general attack those orders in 0:14:49.680 --> 0:14:55.640 the same way and stop his immigration reforms in that way? Yeah, 0:14:55.760 --> 0:14:58.840 So there's sort of two things I think this order suggest. 0:14:58.960 --> 0:15:02.400 I certainly believe if they actually have some sort of 0:15:02.440 --> 0:15:05.440 favor ruling, which again I will still commit to, I 0:15:05.480 --> 0:15:08.840 don't see how on the agreement, Uh, then there would 0:15:08.840 --> 0:15:11.800 be broad range attacks on all sorts of things on 0:15:11.960 --> 0:15:15.360 this particular order. However, though you know a Texas scot 0:15:15.440 --> 0:15:18.560 it's first win if you will, it seems like it's 0:15:18.680 --> 0:15:22.000 still easily worked around that. I think a lot of 0:15:22.000 --> 0:15:26.040 the executive orders in general, but certain agency actions in 0:15:26.120 --> 0:15:29.240 immigration would be able to avoid it. So, for example, 0:15:29.400 --> 0:15:33.040 in avoiding this uh ninety days. That's just one aspect 0:15:33.040 --> 0:15:36.120 of deportation. This doesn't affect what the border law policy 0:15:36.520 --> 0:15:38.680 or even policies on whether or not to bring charges 0:15:38.760 --> 0:15:42.040 against the individual for removal, or whether to stay or removal, 0:15:42.080 --> 0:15:45.120 all those are still in play. Second, the argument that 0:15:45.200 --> 0:15:47.880 was raised here, which again I don't actually think the 0:15:47.880 --> 0:15:51.000 memo explains that much better this that that that most 0:15:51.000 --> 0:15:53.360 agency actions does. But at least with regard to the 0:15:53.440 --> 0:15:57.000 argument here, that's arbitrary and caprecious because it wasn't sufficiently explained. 0:15:57.640 --> 0:16:00.400 The funny thing about the January twenty memo is actually 0:16:00.400 --> 0:16:02.920 it was a precursor to a guidance coming out of 0:16:03.000 --> 0:16:06.120 February one. It's interesting that both Texas and the Court 0:16:06.160 --> 0:16:08.240 didn't even wait for the February first guidance, but I 0:16:08.320 --> 0:16:11.440 understand politically why. But it couldn't really be easily that 0:16:11.480 --> 0:16:13.800 once the February first guidance comes out and has more 0:16:13.800 --> 0:16:17.840 time to explain why the hundred day pausits necessary, or 0:16:17.960 --> 0:16:20.480 once a hundred days are over, another policy to come 0:16:20.520 --> 0:16:24.360 out to explain the priorities of the ongoing administration, that 0:16:24.440 --> 0:16:27.040 at least that second issue that the Court down here 0:16:27.240 --> 0:16:29.960 would go away. This could go away on February one. 0:16:30.040 --> 0:16:31.360 I mean, I don't know what the court will rule, 0:16:31.440 --> 0:16:33.640 but it seems to be something that they find administration 0:16:33.680 --> 0:16:36.640 can do, which is just offer a fuller explanation, which 0:16:36.640 --> 0:16:39.600 in this case I think they're both uh willing and 0:16:39.720 --> 0:16:42.040 more capable of doing than it seemed like with the 0:16:42.080 --> 0:16:44.960 recission of Daka, where the Trump intstress just seemed actually 0:16:45.000 --> 0:16:49.160 really disclined to give a policy rationale for that, probably 0:16:49.160 --> 0:16:51.920 because of the weird politics behind. So now this is 0:16:51.960 --> 0:16:54.800 a temporary restraining order. The judge is going to hold 0:16:54.840 --> 0:16:59.320 a hearing on a preliminary injunction since part of it 0:16:59.560 --> 0:17:03.120 of the very restraining orders of finding that Texas would 0:17:03.160 --> 0:17:06.000 succeed in a temporary injunction. It does it seem as 0:17:06.000 --> 0:17:07.959 if a temporary injunction is the next thing that's going 0:17:08.000 --> 0:17:13.600 to happen. It seems to be um my only sort 0:17:13.640 --> 0:17:16.639 of you know, has anization. But the only thing I'm 0:17:16.680 --> 0:17:20.120 waiting to see is whether or not both the government 0:17:20.440 --> 0:17:24.840 and the court decides to wait for the February first 0:17:24.840 --> 0:17:27.480 guidance to come out, because I think it is very 0:17:27.520 --> 0:17:31.960 possible that at least the the fight administration can use 0:17:31.960 --> 0:17:35.479 the February first guidance to address the concerns that were 0:17:35.560 --> 0:17:40.080 raised in issuing the temporary restraining order. Um, certainly, I 0:17:40.080 --> 0:17:42.119 think the Court can move fast again and try to 0:17:42.560 --> 0:17:45.640 get the preliminary injunction out before the February first guidance. 0:17:45.960 --> 0:17:47.480 I think as a matter of principle, I don't see 0:17:47.480 --> 0:17:50.560 why he would, But I think, you know, if you 0:17:50.600 --> 0:17:52.800 were to wait for the February first guidance that h 0:17:52.920 --> 0:17:54.560 it may be that they can get around it. But 0:17:54.760 --> 0:17:56.800 then again, you know, given how fast that the Court 0:17:56.840 --> 0:17:59.160 has moved, and given how fast would have Texas wants 0:17:59.200 --> 0:18:02.400 to celebrate this, Uh, it may be that even if 0:18:02.440 --> 0:18:05.840 there were further guidance provided that addresses is that the 0:18:05.880 --> 0:18:09.400 Court will still issue a preliminary injunction. Uh. If anything, 0:18:09.440 --> 0:18:13.280 just the whole Biden administration. One thing to note here, 0:18:13.800 --> 0:18:17.119 UH is that the agreement itself that's so controversial was 0:18:17.160 --> 0:18:21.760 intended to hold off Biden administration changes for six months. 0:18:22.280 --> 0:18:24.600 What I'm seeing now is even if the agreement is 0:18:24.680 --> 0:18:28.040 unenforceable at the end, these kind of legal maneuvers that 0:18:28.080 --> 0:18:31.520 they're doing, like that Texas doing made through preliminary injunction 0:18:31.680 --> 0:18:36.399 and just litigation time hold up Biden administration changes or 0:18:36.400 --> 0:18:39.720 at least try to for six months achieving the same goal. 0:18:39.880 --> 0:18:43.160 But through this sort of procedure of litigation, and even 0:18:43.200 --> 0:18:45.480 if these cases end up losing at the circuit level 0:18:45.600 --> 0:18:48.080 or the Supreme Court level, they would have had that 0:18:48.119 --> 0:18:51.720 block which seemed to be their goal, uh, more than 0:18:51.760 --> 0:18:56.000 necessarily getting a particular policy in places. Interesting, if a 0:18:56.080 --> 0:18:59.960 preliminary injunction is issued, one assumes that the Biden administration 0:19:00.000 --> 0:19:03.480 and will appeal, that they'll be appealing to the Fifth Circuit, 0:19:03.600 --> 0:19:07.080 which is the most conservative circuit in the country. I 0:19:07.160 --> 0:19:14.880 believe yes, Are they likely to find an unfriendly court there? Yeah, 0:19:15.160 --> 0:19:17.919 this again I think is hard to say, right, I mean, 0:19:17.960 --> 0:19:21.240 I certainly think in terms of policy. I think in 0:19:21.359 --> 0:19:24.680 terms of you know, sort of understanding or preferences with 0:19:24.800 --> 0:19:28.000 our immigration policy, I think the first ticket would be 0:19:28.880 --> 0:19:33.040 generally considerable unfavorable um And then you know, maybe the 0:19:33.040 --> 0:19:36.000 appeal goes up to the Supreme Court. On the other hand, 0:19:36.119 --> 0:19:38.840 you know, it does raise this question of you know, 0:19:39.119 --> 0:19:42.560 our circuit court judges or even the Supreme Court justices 0:19:43.000 --> 0:19:46.720 going to stick to a long term strategy, right, and 0:19:46.800 --> 0:19:52.520 they're concerned about nationwide injunction, uh in sort of sort 0:19:52.520 --> 0:19:55.560 of trying to tamp them down. Um. So I think 0:19:55.560 --> 0:19:57.800 in some ways it's not just the sort of partisan 0:19:57.920 --> 0:20:00.479 leaning of the judges that may be assigned to the panel, 0:20:01.200 --> 0:20:03.840 but also whether or not, despite their partisan leaning, are 0:20:03.840 --> 0:20:05.920 they going to be thinking in a short term partisan 0:20:06.000 --> 0:20:09.080 perspective or a long term uh sort of you know, 0:20:09.119 --> 0:20:11.320 what do we actually want to see in terms of 0:20:11.359 --> 0:20:15.480 what courts can do regardless of who's uh an administration. 0:20:15.720 --> 0:20:18.560 When at that particular point when the Supreme Court have 0:20:18.600 --> 0:20:21.800 a hard time though, when in cases like the you know, 0:20:21.880 --> 0:20:25.480 the Muslim band, they finally allowed that to go through, 0:20:25.840 --> 0:20:28.320 and yeah, this is not something for the States, this 0:20:28.440 --> 0:20:31.080 is a federal government issue. Yeah, I mean I think 0:20:31.160 --> 0:20:33.680 that's going to be the test. And when I talked 0:20:33.720 --> 0:20:36.600 about the February first guidance or what the Biden administration 0:20:36.640 --> 0:20:38.679 mad to do sort of going forward, I mean, we 0:20:38.720 --> 0:20:42.200 have to remember the Muslim Land that the Supreme Court 0:20:42.240 --> 0:20:45.119 review was version three. Right, they had tried once and 0:20:45.119 --> 0:20:47.240 then they tried again, and then did a third one 0:20:47.280 --> 0:20:49.239 with all these explanations, and it was the third one 0:20:49.280 --> 0:20:52.560 that passed. Right. So I was assuming even for this case, 0:20:52.680 --> 0:20:54.639 you know, it's not going to be this memo that 0:20:54.680 --> 0:20:57.919 will ultimately reviewed. Right. What will be reviewed is, you know, 0:20:58.160 --> 0:21:00.919 either the February first guidance or some other further guidance 0:21:00.960 --> 0:21:04.000 that comes down the road. Presumably if the Supreme Court 0:21:04.080 --> 0:21:08.520 stix to with you know, uh precedent, Uh, it would 0:21:08.560 --> 0:21:11.040 review that third one. And you know, just you need 0:21:11.040 --> 0:21:13.600 to offer an explanation. Is actually not that hard to 0:21:13.600 --> 0:21:16.720 do if you're willing to offer the explanation, right. Um, 0:21:16.760 --> 0:21:18.800 So it would appear to me that if it does 0:21:18.840 --> 0:21:21.760 go that far, that just like the Muslim van uh, 0:21:21.920 --> 0:21:25.040 that the Biden administration will prevail here. But let's not 0:21:25.040 --> 0:21:28.160 also forget it was a long road to the Supreme Court, 0:21:28.480 --> 0:21:30.760 and the Supreme Court can choose whether or not to 0:21:30.800 --> 0:21:33.160 take a case or not. So it could be again, 0:21:33.160 --> 0:21:36.080 if it's a delayed tactic that you know, similar results 0:21:36.080 --> 0:21:39.960 can be produced just buying the delay of the litigation. Um. 0:21:40.040 --> 0:21:41.800 One day, we're going to see similar between the Biden 0:21:41.800 --> 0:21:44.680 administration and the Trump administration. Is the Trump administration kept 0:21:44.720 --> 0:21:48.440 trying to accelerate its cases and facing these district court 0:21:48.800 --> 0:21:51.160 injunctions and try to get out of the Supreme Court 0:21:51.200 --> 0:21:54.399 as fast as possible. Um and although there were criticism 0:21:54.400 --> 0:21:56.280 against that in terms of you know, lighting and go 0:21:56.359 --> 0:21:59.320 through the regular process. I suspect Biden administration is going 0:21:59.359 --> 0:22:02.160