Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 1: President Joe Biden promised an ambitious immigration agenda during the campaign.
Speaker 1: Within a hundred days, I'm going to send to the
Speaker 1: United States Congress a pathway to citizenship for over eleven
Speaker 1: million undocumented people. But his first steps in that direction
Speaker 1: hit a legal roadblock put up by the state of Texas.
Speaker 1: In a sign of the many legal battles to come,
Speaker 1: Texas sued to stop the new administration's one hundred day
Speaker 1: pause on deportations of undocumented immigrants, and in a swift
Speaker 1: legal defeat for the administration, a Texas judge temporarily blocked
Speaker 1: the moratorium. Joining me as immigration law expert, Rick Sue,
Speaker 1: a professor at the University of North Carolina Law School,
Speaker 1: Rick this order by Judge Drew Tipton, a Trump appointee.
Speaker 1: Were you surprised that the judge issued this order so initially?
Speaker 1: I was surprised, right, because my understanding was that the
Speaker 1: challenge was primarily based on agreement, and I just thought
Speaker 1: that not only was the agreement really unenforceable, but that
Speaker 1: for the judge to rule so quickly on this without
Speaker 1: argument without sort of going through everything would be too quick.
Speaker 1: After reading it, though, I realized that the order was
Speaker 1: a lot more limited. It certainly did not address this
Speaker 1: unprecedented agreement between Texas and the federal government, but in
Speaker 1: some ways was more closely situated to something that we've
Speaker 1: seen a lot. This is based on the a p A.
Speaker 1: The Administrative Procedures Acts, a little statute. It seems to
Speaker 1: be following the same kind of strand that was used
Speaker 1: against the Trump administration with regards to the executive orders
Speaker 1: and policies that were issued under his administration. So explain
Speaker 1: the judge reasoning. So the judge is reasoning, Um, there
Speaker 1: were two points that he sort of laughs on too,
Speaker 1: because in order to even get a temporary restraining order,
Speaker 1: there has to be some sense that the party is
Speaker 1: likely to prevail on the merits. Not really data, they
Speaker 1: addressing the merits, but they have to address this sort
Speaker 1: of indirectly from that particular stand and the two points.
Speaker 1: One was that the one day pause violated a provision
Speaker 1: of the federal law on immigration, the Immigration Nationality Act,
Speaker 1: which actually requires individuals with final orders to deportation to
Speaker 1: be removed within ninety days. Right that certain individuals that
Speaker 1: within the pause would not be removed with the ninety days,
Speaker 1: and that this violates the federal law and therefore the
Speaker 1: policy that violates it would then be an Administrated Procedure
Speaker 1: Act problem. I'm having to talk about that because I
Speaker 1: think in some ways it might be a misreading of
Speaker 1: the memo, or at least in my opinions, But nonetheless,
Speaker 1: that's the first claim. The second claim that was made
Speaker 1: is actually similar to the Supreme Court case with regards
Speaker 1: to the Trump administration's efforts to roll back SOCCA. Now,
Speaker 1: if you call from that case, what the Supreme Court
Speaker 1: held was that the justification that was given was insufficient,
Speaker 1: There wasn't sufficient reason for why they were rolling back
Speaker 1: soccer their respective of the other issues around it. And
Speaker 1: in some ways they're making the same argument here that
Speaker 1: the explanation that was given for the need for one
Speaker 1: hundred day pause was not sufficiently articulated, was not satisfactory
Speaker 1: to the court, and for the Court thought that it
Speaker 1: was likely to be ruled arbitrary and capricious, which would
Speaker 1: violate the Administrative Procedure. That again, I have some quipples
Speaker 1: with that particular interpretation, but nonetheless these are at least
Speaker 1: rounded within things that we've seen before, as opposed to
Speaker 1: this agreement, which support itself said raises all sorts of
Speaker 1: constitutional questions, and he is not going to rule on
Speaker 1: that at this point. Just to clarify, the agreement you're
Speaker 1: referring to is won the Trump administration signed with conservative
Speaker 1: states in its final week. The Texas a g claims
Speaker 1: the Department of Homeland Security agreed to consult with Texas
Speaker 1: before making any changes to deportation regulations. How unusual would
Speaker 1: that be? So this is very unusual, not only this
Speaker 1: idea that the federal government would delegate right, this sort
Speaker 1: of obligation to both consult with a particular state or
Speaker 1: even a particular locality, but also even the obligation that
Speaker 1: in this particular agreement that they would hold off and
Speaker 1: making any decisions for six months. They would have to
Speaker 1: announce it, wait six months and get consultation. Clearly, this
Speaker 1: is a last minute sort of effort by the Trump
Speaker 1: administration to try to hamstring any policy changes by the
Speaker 1: Biden administration, and in this case, they're doing it through
Speaker 1: this agreement, through contract, not even through a policy or
Speaker 1: a statute. Personally, I don't see how this agreement that
Speaker 1: Texas is doing on would be enforceable, but it certainly
Speaker 1: sets up the general framework which is the kind of
Speaker 1: politics that we're going to see around immigrations and other
Speaker 1: issues going forward, which is state attorney generals and Republican
Speaker 1: states sort of taking up the mantles challenge of federal government.
Speaker 1: So the Justice Department lawyer said Texas is asking to
Speaker 1: run federal immigration law. Is that the basic argument that
Speaker 1: the Justice Department is going to put forward here? Or
Speaker 1: are there other arguments? Yeah, there's lots of arguments for
Speaker 1: why this agreement, this con practice, last minute contract that
Speaker 1: was signed by the outgoing Department Homeless Security is not enforceable.
Speaker 1: But I think that Justice Department is right in this
Speaker 1: sort of broader cases. All these arguments sort of circle
Speaker 1: around the idea that the federal government cannot delegate or relinquish,
Speaker 1: you know, some sovereign power over policy, either the executive
Speaker 1: in terms of their discretion or even the whole federal
Speaker 1: government in terms of making policy to a state. I mean,
Speaker 1: you know, to go through some of the many arguments, right,
Speaker 1: I mean, one is whether or not the Department Homeless
Speaker 1: Security can even enter into this agreement to bind the
Speaker 1: federal government or bind a future administration, as the Trump
Speaker 1: minister is trying to do. The agency only has the
Speaker 1: power that is delegated to Congress. And I can't find
Speaker 1: any particular delegation by statute that allows to be just
Speaker 1: to bind its own power or even find the federal
Speaker 1: government in this way not to men do that. But
Speaker 1: we're talking about doing this through contract, and we have
Speaker 1: to remember that contract is not usually how governmental policies
Speaker 1: are made. It's to be made through statute. And in fact,
Speaker 1: the federal government has sovereign immunity. You can't usually sue
Speaker 1: the federal government unless it gives permission for that suit
Speaker 1: in contract or towards um. And in this particular case, uh,
Speaker 1: you know, there has this provisions to allow certain suits
Speaker 1: on contract for government contracts where services are good, but
Speaker 1: not for this kind of policy contract or how policy
Speaker 1: do you get made? Third, even if it was delegated, right,
Speaker 1: even if you know somehow Congress allows this kind of
Speaker 1: binding greed to made um, this could run a foul
Speaker 1: of just the basic non delegation doctrine, right, which is
Speaker 1: to say that there are just certain responsibilities and powers
Speaker 1: when it comes to immigration, we know it's an exclusive
Speaker 1: federal responsibility. It's just you know, these powers can't be delegated, right,
Speaker 1: You can't just sort of take a bunch of federal
Speaker 1: government powers and then through contract delegated to a state
Speaker 1: or delegated heck to presumably contract to like a private industry. Uh.
Speaker 1: These are powers that the government has, uh, And there
Speaker 1: are processes by whiches are changed. But to sort of
Speaker 1: stripped that kind of power, that sovereignty and give it
Speaker 1: to another institution, this kind of delegation has ever been tried.
Speaker 1: But even other types of delegations have run to foul
Speaker 1: the non delegation doctorate or separation of powers issues or
Speaker 1: federalism issues. So this runs without all these um uh
Speaker 1: and even just the basic idea of the sovereign power
Speaker 1: of the federal government here be given to arguably a
Speaker 1: state and not even just a state to an attorney general.
Speaker 1: All these agreements just signed with attorney generals, right, which
Speaker 1: itself raises another set of hasn't The Supreme Court, the
Speaker 1: Roberts Court in particular, very much said that immigration is
Speaker 1: a federal matter, not the states. Yes, yeah, and not
Speaker 1: just I mean this is well established in uh sort
Speaker 1: of constitutional law by many Supreme courts, but even recently
Speaker 1: right the Supreme Court has sort of reaffirmed and reasserted
Speaker 1: that this is a federal power and that U. States
Speaker 1: cannot regulate immigration. And in this case, the argument would be,
Speaker 1: they can't regulate immigration, uh when the federal government tries
Speaker 1: to sort of delegate that power to them. In fact,
Speaker 1: we have a more recent decision. It didn't get to
Speaker 1: the Supreme Court, but it was decided most recently in
Speaker 1: the Fourth Circuit, and this was when the Trump administration
Speaker 1: gave veto power to states and localities whether with regard
Speaker 1: to refugees that would be settled within those states and localities. Um,
Speaker 1: so not exactly an agreement, but nonetheless the policy was
Speaker 1: that unless the state or locality agreed to accept refugees,
Speaker 1: they wouldn't put any refugees there. And that was challenge
Speaker 1: again again, you know, on the basis that this goes
Speaker 1: against congressional statute and goes against the sort of power
Speaker 1: that's delegated to the agency. And most recently the Four
Speaker 1: Circuits found that to say that, you know, the statue
Speaker 1: says that you must consult but does not allow you
Speaker 1: to make your decisions on the basis or delegate those
Speaker 1: decisions to the states or localities. And essentially they argued,
Speaker 1: that's what these comministration is trying to do. So we
Speaker 1: seem to have you known earlier attempt Uh. That might
Speaker 1: also be of concert quints in the enforcement of this
Speaker 1: specific agree there might be an objection because Ken Cucinelli
Speaker 1: signed this as senior official performing duties of deputy secretary,
Speaker 1: and so did he have legal authority to even sign
Speaker 1: it or is it a violation of the Federal Vacancies
Speaker 1: Reform Act. Yeah, that's that's absolutely correct. And of course
Speaker 1: there's been other litigation about actions taken by Crichinelli on
Speaker 1: the basis that he does not actually have the power
Speaker 1: to hold that office or to find the department right
Speaker 1: that he's uh, he's overseeing, right or or not oversee
Speaker 1: I guess under the law. So that does raise another issue,
Speaker 1: and I would think that you know, even on top
Speaker 1: of that right to enter into the agreement to make
Speaker 1: this particular policy. This reminds me of the DACA reversal
Speaker 1: that the Supreme Court also reverse recently. Right, I mean,
Speaker 1: this came out of the blue. It's not clear there
Speaker 1: was much consultation, much sort of you know agency certainly
Speaker 1: not standard agency rulemaking in this particular case. So not
Speaker 1: only is it does originally have the power, but is
Speaker 1: the process that he went through in this case also problematic.
Speaker 1: It makes sense as a last minute sort of last
Speaker 1: minute bomb, I think were less for the Biden administration,
Speaker 1: But from a legal manner, this is not how we
Speaker 1: usually imagine agencies operating. Getting back to the judge's order,
Speaker 1: what about your quibbles? Tell us what your quibbles are. Now,
Speaker 1: it is important to note that although certainly most law
Speaker 1: enforcement offices and prosecutors have prosecutorial discretion, it is important
Speaker 1: to note that Congress has limited that discretion somewhat when
Speaker 1: it comes to immigration. Essentially, what it says is that
Speaker 1: the Congress has said that once a final order of
Speaker 1: removal has been issued and besausted all the appeals, that
Speaker 1: the government shall with the court. In fact, that shall
Speaker 1: remove the individual within ninety days. There's some small exceptions,
Speaker 1: but they don't fly here. Now. On the face, it
Speaker 1: does seem like as the court said that the one
Speaker 1: day pause would violate that provision. The reason why how
Speaker 1: to equipbal was because if you read the memo carefully.
Speaker 1: The memo actually does provide an exception or individuals who
Speaker 1: may be subject to this ninety days shall be removed provision,
Speaker 1: and says that individuals who maybe have to be removed
Speaker 1: as a matter of law should be exempted from the policy.
Speaker 1: So it actually seems to me that the policy itself
Speaker 1: accommodate this particular law, at least in the way that
Speaker 1: it will be implemented. Of course, this is very early
Speaker 1: on the challenge, right, so we don't even have a
Speaker 1: case where they violated that law that we can point to.
Speaker 1: So it seems interesting that the court would enjoin or
Speaker 1: at least restraint the entire memo, even though the memo
Speaker 1: doesn't seem to violate this precision that they're pointing to.
Speaker 1: So again, I'm assuming that in further rounds this might
Speaker 1: come up. I don't know if the court will sort
Speaker 1: of unraveled, but at least for my reading, it seems
Speaker 1: to be actually in compliance with that law. Can I
Speaker 1: judge in Victoria, Texas forced the federal government to take
Speaker 1: affirmative action guarding immigration, forced the federal government to deport people.
Speaker 1: This is the sort of million dollar question here, you know,
Speaker 1: any comparison drawn with regard to the nationwide injunctions issued
Speaker 1: against the Trump administration kind of buckles a little bit here,
Speaker 1: because the injunction in those other cases, most injunctions against
Speaker 1: the government is to prevent them from doing something right,
Speaker 1: just sort of maintain whether you're doing But this actually
Speaker 1: is different. Presumably at what Texas wants is actually to
Speaker 1: force the federal government to continue to do deportation. Now,
Speaker 1: what I think here is that it's not entirely clear
Speaker 1: that even the means of the order or the rational
Speaker 1: behind the order can actually force that affirmative actions happen. Now,
Speaker 1: it could be then to buy the administration just says, okay,
Speaker 1: the policy is restrained, but that doesn't necessarily mean that
Speaker 1: we are forced in every case, and are you exercise
Speaker 1: the discretion to remove everyone immediately? And in my opinion,
Speaker 1: it doesn't seem like the restraining order on the policy
Speaker 1: would actually get that far. So the Judge Tipton said,
Speaker 1: nationwide injunctions of executive action are a topic of fierce
Speaker 1: and ongoing debate. Even so we issued a nationwide injunction.
Speaker 1: This is in some ways going to be an interesting
Speaker 1: play out because obviously the criticism during the Trump administration
Speaker 1: when nationwide injunctions would be issued against Trump administration policies. Uh,
Speaker 1: the most of the criticism was from the right and
Speaker 1: conservative leaning judges. Right now, they made their claim sort
Speaker 1: of broadley, you know, sort of in terms of federal
Speaker 1: power and the power of small distrectport that forum shopping, uh,
Speaker 1: and the ability for you know, sort of a very
Speaker 1: early preliminary injunctions to sort of pause federal policy. Well,
Speaker 1: now the tables turned, and it seems like to fight
Speaker 1: all those concerns that were raised before that certainly at
Speaker 1: least wouldwards a disjudge and Texas interests. Uh. They seem
Speaker 1: to be following into the same exact or playbook. What
Speaker 1: I'm curious about the debate over nationwide injunctions is now
Speaker 1: that the administrations have changed, you know, will the Supreme
Speaker 1: Court are or even less they conservative jurists suddenly change
Speaker 1: their minds or are they going to continue which seems
Speaker 1: to be where they were headed this sort of principle
Speaker 1: that they were headed towards, which is disfavoring nationwide injunctions,
Speaker 1: especially when it affects national federal government policies. So I
Speaker 1: think that's the way to be seen right as part
Speaker 1: of this ship going to rule on this or some
Speaker 1: sort of principles, um, and I would say the track
Speaker 1: record has not been so great for my opinion as
Speaker 1: a person that tries to commit to sort of these
Speaker 1: principles and teach my students, you know, neutral principles of law.
Speaker 1: But I'd be interested in what the Supreme Court actually
Speaker 1: does with regard to this kind of reversal and partisan power.
Speaker 1: Biden is issuing a lot of executive orders with regard
Speaker 1: to immigration. Can Republican attorneys general attack those orders in
Speaker 1: the same way and stop his immigration reforms in that way? Yeah,
Speaker 1: So there's sort of two things I think this order suggest.
Speaker 1: I certainly believe if they actually have some sort of
Speaker 1: favor ruling, which again I will still commit to, I
Speaker 1: don't see how on the agreement, Uh, then there would
Speaker 1: be broad range attacks on all sorts of things on
Speaker 1: this particular order. However, though you know a Texas scot
Speaker 1: it's first win if you will, it seems like it's
Speaker 1: still easily worked around that. I think a lot of
Speaker 1: the executive orders in general, but certain agency actions in
Speaker 1: immigration would be able to avoid it. So, for example,
Speaker 1: in avoiding this uh ninety days. That's just one aspect
Speaker 1: of deportation. This doesn't affect what the border law policy
Speaker 1: or even policies on whether or not to bring charges
Speaker 1: against the individual for removal, or whether to stay or removal,
Speaker 1: all those are still in play. Second, the argument that
Speaker 1: was raised here, which again I don't actually think the
Speaker 1: memo explains that much better this that that that most
Speaker 1: agency actions does. But at least with regard to the
Speaker 1: argument here, that's arbitrary and caprecious because it wasn't sufficiently explained.
Speaker 1: The funny thing about the January twenty memo is actually
Speaker 1: it was a precursor to a guidance coming out of
Speaker 1: February one. It's interesting that both Texas and the Court
Speaker 1: didn't even wait for the February first guidance, but I
Speaker 1: understand politically why. But it couldn't really be easily that
Speaker 1: once the February first guidance comes out and has more
Speaker 1: time to explain why the hundred day pausits necessary, or
Speaker 1: once a hundred days are over, another policy to come
Speaker 1: out to explain the priorities of the ongoing administration, that
Speaker 1: at least that second issue that the Court down here
Speaker 1: would go away. This could go away on February one.
Speaker 1: I mean, I don't know what the court will rule,
Speaker 1: but it seems to be something that they find administration
Speaker 1: can do, which is just offer a fuller explanation, which
Speaker 1: in this case I think they're both uh willing and
Speaker 1: more capable of doing than it seemed like with the
Speaker 1: recission of Daka, where the Trump intstress just seemed actually
Speaker 1: really disclined to give a policy rationale for that, probably
Speaker 1: because of the weird politics behind. So now this is
Speaker 1: a temporary restraining order. The judge is going to hold
Speaker 1: a hearing on a preliminary injunction since part of it
Speaker 1: of the very restraining orders of finding that Texas would
Speaker 1: succeed in a temporary injunction. It does it seem as
Speaker 1: if a temporary injunction is the next thing that's going
Speaker 1: to happen. It seems to be um my only sort
Speaker 1: of you know, has anization. But the only thing I'm
Speaker 1: waiting to see is whether or not both the government
Speaker 1: and the court decides to wait for the February first
Speaker 1: guidance to come out, because I think it is very
Speaker 1: possible that at least the the fight administration can use
Speaker 1: the February first guidance to address the concerns that were
Speaker 1: raised in issuing the temporary restraining order. Um, certainly, I
Speaker 1: think the Court can move fast again and try to
Speaker 1: get the preliminary injunction out before the February first guidance.
Speaker 1: I think as a matter of principle, I don't see
Speaker 1: why he would, But I think, you know, if you
Speaker 1: were to wait for the February first guidance that h
Speaker 1: it may be that they can get around it. But
Speaker 1: then again, you know, given how fast that the Court
Speaker 1: has moved, and given how fast would have Texas wants
Speaker 1: to celebrate this, Uh, it may be that even if
Speaker 1: there were further guidance provided that addresses is that the
Speaker 1: Court will still issue a preliminary injunction. Uh. If anything,
Speaker 1: just the whole Biden administration. One thing to note here,
Speaker 1: UH is that the agreement itself that's so controversial was
Speaker 1: intended to hold off Biden administration changes for six months.
Speaker 1: What I'm seeing now is even if the agreement is
Speaker 1: unenforceable at the end, these kind of legal maneuvers that
Speaker 1: they're doing, like that Texas doing made through preliminary injunction
Speaker 1: and just litigation time hold up Biden administration changes or
Speaker 1: at least try to for six months achieving the same goal.
Speaker 1: But through this sort of procedure of litigation, and even
Speaker 1: if these cases end up losing at the circuit level
Speaker 1: or the Supreme Court level, they would have had that
Speaker 1: block which seemed to be their goal, uh, more than
Speaker 1: necessarily getting a particular policy in places. Interesting, if a
Speaker 1: preliminary injunction is issued, one assumes that the Biden administration
Speaker 1: and will appeal, that they'll be appealing to the Fifth Circuit,
Speaker 1: which is the most conservative circuit in the country. I
Speaker 1: believe yes, Are they likely to find an unfriendly court there? Yeah,
Speaker 1: this again I think is hard to say, right, I mean,
Speaker 1: I certainly think in terms of policy. I think in
Speaker 1: terms of you know, sort of understanding or preferences with
Speaker 1: our immigration policy, I think the first ticket would be
Speaker 1: generally considerable unfavorable um And then you know, maybe the
Speaker 1: appeal goes up to the Supreme Court. On the other hand,
Speaker 1: you know, it does raise this question of you know,
Speaker 1: our circuit court judges or even the Supreme Court justices
Speaker 1: going to stick to a long term strategy, right, and
Speaker 1: they're concerned about nationwide injunction, uh in sort of sort
Speaker 1: of trying to tamp them down. Um. So I think
Speaker 1: in some ways it's not just the sort of partisan
Speaker 1: leaning of the judges that may be assigned to the panel,
Speaker 1: but also whether or not, despite their partisan leaning, are
Speaker 1: they going to be thinking in a short term partisan
Speaker 1: perspective or a long term uh sort of you know,
Speaker 1: what do we actually want to see in terms of
Speaker 1: what courts can do regardless of who's uh an administration.
Speaker 1: When at that particular point when the Supreme Court have
Speaker 1: a hard time though, when in cases like the you know,
Speaker 1: the Muslim band, they finally allowed that to go through,
Speaker 1: and yeah, this is not something for the States, this
Speaker 1: is a federal government issue. Yeah, I mean I think
Speaker 1: that's going to be the test. And when I talked
Speaker 1: about the February first guidance or what the Biden administration
Speaker 1: mad to do sort of going forward, I mean, we
Speaker 1: have to remember the Muslim Land that the Supreme Court
Speaker 1: review was version three. Right, they had tried once and
Speaker 1: then they tried again, and then did a third one
Speaker 1: with all these explanations, and it was the third one
Speaker 1: that passed. Right. So I was assuming even for this case,
Speaker 1: you know, it's not going to be this memo that
Speaker 1: will ultimately reviewed. Right. What will be reviewed is, you know,
Speaker 1: either the February first guidance or some other further guidance
Speaker 1: that comes down the road. Presumably if the Supreme Court
Speaker 1: stix to with you know, uh precedent, Uh, it would
Speaker 1: review that third one. And you know, just you need
Speaker 1: to offer an explanation. Is actually not that hard to
Speaker 1: do if you're willing to offer the explanation, right. Um,
Speaker 1: So it would appear to me that if it does
Speaker 1: go that far, that just like the Muslim van uh,
Speaker 1: that the Biden administration will prevail here. But let's not
Speaker 1: also forget it was a long road to the Supreme Court,
Speaker 1: and the Supreme Court can choose whether or not to
Speaker 1: take a case or not. So it could be again,
Speaker 1: if it's a delayed tactic that you know, similar results
Speaker 1: can be produced just buying the delay of the litigation. Um.
Speaker 1: One day, we're going to see similar between the Biden
Speaker 1: administration and the Trump administration. Is the Trump administration kept
Speaker 1: trying to accelerate its cases and facing these district court
Speaker 1: injunctions and try to get out of the Supreme Court
Speaker 1: as fast as possible. Um and although there were criticism
Speaker 1: against that in terms of you know, lighting and go
Speaker 1: through the regular process. I suspect Biden administration is going
Speaker 1: to feel the name if the same tactic and strategy
Speaker 1: has been used as Texas is doing here to hold
Speaker 1: up a lot of these agency decisions from going forward.
Speaker 1: Do you see this lawsuit and the agreement as an
Speaker 1: indication that the tug of war over immigration is going
Speaker 1: to continue in the Biden administration. I think what's important
Speaker 1: about this agreement and the setup that it creates is
Speaker 1: that it's set up a roadmap in which future Biden
Speaker 1: administration policies on immigration is going to be facing a
Speaker 1: wave of state attorney general is really suing on any
Speaker 1: small change, And I see this as essentially the set
Speaker 1: up as the immigration hawks in the Duke is retreating
Speaker 1: to state attorneys generals and to the state level, So
Speaker 1: we're likely to see another wave of state federal litigation again.
Speaker 1: Whether or not they succeed or not, it is important,
Speaker 1: I believe, as political messaging and as sort of showing
Speaker 1: that there is a challenge to the federal government and
Speaker 1: to the Biden administration. It seems similar to what the
Speaker 1: Democratic attorneys General did during the Trump administration. Interesting, it's
Speaker 1: certainly not limited to immigration, but I think immigration you
Speaker 1: have an interesting development. You know, when the federal government
Speaker 1: became dependent and in some ways reliant on state local
Speaker 1: participation for immigration enforcement, what they also opened up is
Speaker 1: a sphere of immigration debates that is no longer limited
Speaker 1: to the halls of Congress or the decision makers and
Speaker 1: lawmakers and federal government. So in some ways, the solicitation
Speaker 1: for assistance now has changed the framework for immigration debates
Speaker 1: so that whether it's Blue states and Republican read the
Speaker 1: federal government or the reverse, that essentially immigration policy is
Speaker 1: now always at the edge of the state and federal relationship.
Speaker 1: So it's interesting how cooperation reliance has now built and
Speaker 1: sort of reshaped the political landscape we're likely you're going
Speaker 1: to see going forward under the bind administration, just as
Speaker 1: we saw it in the reverse under the Trump administration. Rick,
Speaker 1: where does DAKA stand right now? So dakas in a
Speaker 1: strange position right So one thing to note is that, no,
Speaker 1: the Supreme Court at least has not at this point
Speaker 1: determined that DOCTA itself is legal or constitutional. What it
Speaker 1: determined that was that Trump's trying to reverse it violated
Speaker 1: the administrative procedure that but sort of UH did not
Speaker 1: actually decide on that particular legal question of whether or
Speaker 1: not data itself is legal. I suspect that we're going
Speaker 1: to see another ways, and this particular lawsuit on this
Speaker 1: agreement suggests that states are going to be active another
Speaker 1: wave of litigation that challenges it at UH. And that
Speaker 1: also makes sense that Biden, you know, even though he
Speaker 1: is going to uphold DOCTA right now, that Biden's first
Speaker 1: instinct right now is to get a bill to Congress. UH. Certainly,
Speaker 1: his bill proposed is on a much bigger topic with
Speaker 1: regard to immigration reform and unauthorized immigrants generally. But I
Speaker 1: would suspect that within it is an attempt to if
Speaker 1: you can't get that bigger reform, to get DOCCA and
Speaker 1: Dream Act pass specifically. So that makes sense that he
Speaker 1: wants a compersional organization because I think it is still
Speaker 1: an open question, especially at the Supreme Court level, of
Speaker 1: whether or not data itself UH is legal, a question
Speaker 1: that they did not answer in the last case. What
Speaker 1: are like some of the big points of immigration legislation
Speaker 1: that Biden wants to pass so so in the latest proposal,
Speaker 1: it's quite broad, so it's not limited to the Dreamers.
Speaker 1: In fact, they would be closer to Reagan's um amnesty
Speaker 1: provision in granting a pastic citizenship to almost everyone who
Speaker 1: is an on the authorized immigrant who arrived before a
Speaker 1: certain time. Uh, and of course has not been convicted
Speaker 1: of a felony, has page of Texas and other sort
Speaker 1: of provisions that go with it. But unlike let's say,
Speaker 1: Data or the Dream Act, it's not limited to just
Speaker 1: people who ride as children. UM. In some ways, this
Speaker 1: is imagined to be a a reset, if you will,
Speaker 1: of uh, you know, the fact that to to recognize
Speaker 1: the fact that we've tolerated this growing population of unauthorized
Speaker 1: immigrants who don't fit into any legal category, right, who
Speaker 1: has been here for a long time but don't fit
Speaker 1: into any sort of understanding of you know, either immigration
Speaker 1: category or citizens, to sort of acknowledge that they are
Speaker 1: in fact the facto sort of Americanism degree. UM. So
Speaker 1: this seems to be a recognition of that. UM. I
Speaker 1: think it's always that the strong opening gambit, right, UH,
Speaker 1: because I believe, uh, even though there's been strong consensus
Speaker 1: behind the Dreamers even among Republicans with regard to the
Speaker 1: entire or you know, the majority of a notarius immigrants. Uh,
Speaker 1: there's sharp divisions. They're based on party lines. Turning to
Speaker 1: another immigration issue, the wall. First of all, is the
Speaker 1: whole border walled off? Now? No? No, So the vast
Speaker 1: majority of the wall construction was in areas that were
Speaker 1: already sent um. So you know, he would say that
Speaker 1: there were wall construction, but you know, others may argue
Speaker 1: that there was sort of like rehabilitation or sort of reinforcement.
Speaker 1: And of course, in some ways, in terms of the
Speaker 1: new areas that the wall bill, my understanding is less
Speaker 1: than a hundred miles at this particular point. Right. So
Speaker 1: in some ways, in terms of the areas that have
Speaker 1: been um, you know, sort of fenced or walled, it
Speaker 1: actually hasn't changed all that much of before the wall
Speaker 1: construction to after the wall construction. Right, even though the
Speaker 1: areas that are fenced now I don't have been reinforced
Speaker 1: with this particular wall. And the truth does that makes sense?
Speaker 1: I mean there are areas that were not fenced, where
Speaker 1: areas that were difficult defense and those difficulties still persisted. Um.
Speaker 1: And in some ways that's what the Biden administration, in
Speaker 1: canceling it is sort of suggesting that that those money
Speaker 1: that we're uh sort of taken from other pots, the
Speaker 1: most specifically Department of Defense, should not be sort of
Speaker 1: spent in this particular manner, especially in the areas where
Speaker 1: new wall construction would need quite expensive and not tie
Speaker 1: was clear that they would be necessary. But in terms
Speaker 1: of new wall construction or you know, really, I would
Speaker 1: say since the Bush administration, it's you know, the areas
Speaker 1: that have been walled has not been substantially increased under
Speaker 1: the Trump industry. I've been reading about environmentalists complaining that,
Speaker 1: you know, they're destroying environmental sites and they're doing things
Speaker 1: that destroy the habitat for endangered species. Yeah, that's the
Speaker 1: biggest concern right now. Right the new areas of wall
Speaker 1: construction that they were moving on to that in Trump
Speaker 1: sort of accelerated towards the end of his term, were
Speaker 1: areas that were hard to build an areas that were
Speaker 1: either private property or environmentally sensitive areas. UH. Certainly Trump
Speaker 1: waived all sorts of environmental UH restrictions and UH and
Speaker 1: checks in order to sort of accelerate it. Um So
Speaker 1: in some ways. The interesting thing is a lot of
Speaker 1: destruction happened in the last few months of the Trump
Speaker 1: administration and accelerating this development. But it's not clear that
Speaker 1: a wall would be built. So what we got actually
Speaker 1: and why I think Biden was very aggressive in just
Speaker 1: stopping work as soon as you can, was all this
Speaker 1: destruction and all this effort that was going into it,
Speaker 1: even though ultimately there's not gonna be any wall there,
Speaker 1: but the destruction will still persist. Um. So that's what
Speaker 1: they were moving into in terms of the areas of
Speaker 1: new construction. So what invit stop it immediately? I mean,
Speaker 1: my understanding there is that the work should have been
Speaker 1: stopped immediately with regard to some of the more aggressive
Speaker 1: work that was done, But there was a seven days.
Speaker 1: I believe the ultimate pause cannot be beyond seven days,
Speaker 1: so uh, it seemed to give the agencies that were
Speaker 1: in charge of this some discretion within the seven days.
Speaker 1: But my undersetting is that the order was sort of
Speaker 1: as early as possible, but no later than seven days. Uh.
Speaker 1: It's hard to figure right now out exactly how Department
Speaker 1: Homeland Security is executing that executive order, but I think
Speaker 1: Biden may clear that he wanted it, if all possible,
Speaker 1: to be immediate and just provided the seven days as
Speaker 1: a little bit of a great period. If you know
Speaker 1: certain prices can't be stopped immediately or that, uh, you
Speaker 1: can imagine right that, you know, certain things might have
Speaker 1: to be kind of seen forward, because to stop immediately
Speaker 1: maybe worse than to sort of, you know, finish whatever
Speaker 1: they were doing in a situation. But but I see
Speaker 1: my DJs was ordered to stop things that can be
Speaker 1: stopped as early as possible. Thanks for being on the
Speaker 1: Bloomberg Laws show. Rick that's Professor Rick Seu of the
Speaker 1: University of North Carolina Law School. A high school football
Speaker 1: coach insists that he has the right to kneel down
Speaker 1: and pray on the fifty yard line after a game,
Speaker 1: and he's taken his case to the Supreme Court once already.
Speaker 1: Now the Ninth Circuit Court of Appeals will discide whether
Speaker 1: Joe Kennedy's prayer is the sort of private religious act
Speaker 1: protected by the Constitution's free speech clause, or whether the
Speaker 1: prayer at the focal point of a public school event
Speaker 1: is the kind of public speech the school district has
Speaker 1: the right to restrict. The lawsuit against the Washington State
Speaker 1: School District could clarify and shape the workplace free speech
Speaker 1: rights of millions of coaches, teachers, and other public employees
Speaker 1: of all faiths. In the circuit joining me is Stephanie Barkley,
Speaker 1: professor at Notre Dame Law School. If this were done
Speaker 1: in a classroom, what he did on the field, is
Speaker 1: it clear that it would not be protected speech. So
Speaker 1: if a teacher were to offer a prayer in the
Speaker 1: classroom in a way that is, you know, really pressuring
Speaker 1: or coercing students to participate, then the Supreme Courts case
Speaker 1: laws definitely suggests that that would violate the Establishment Clause.
Speaker 1: It's not clear, though, however, that if the teachers, sitting
Speaker 1: at their desk at the front of the classroom set
Speaker 1: a quiet prayer over their lunch, for example, that that
Speaker 1: would violate the Establishment clause. And Justice Alito analogize what
Speaker 1: the coach in this case is doing too, sort of
Speaker 1: a quiet private prayer of that type. So, even within
Speaker 1: the classroom where Establishment Clause protections are heightened, it's not
Speaker 1: as though the rules clearly is that a teacher must
Speaker 1: be precluded from doing anything religious. So explain what the
Speaker 1: coaches argument is he has a few arguments that he's arguing.
Speaker 1: First of all, that there's no captive audience. When he
Speaker 1: goes to pray at the fifty yards line after a
Speaker 1: game to just sort of give thanks for how the
Speaker 1: game went. He's not requiring anyone to participate the audience.
Speaker 1: He isn't stuck there in the way that students are
Speaker 1: in a classroom, and so some of the course of
Speaker 1: elements that we worry about in the classroom just don't
Speaker 1: apply in this particular context. And he's also arguing about
Speaker 1: the sort of slip Reslow arguments on the other side
Speaker 1: that if anything is teacher or coach does any time
Speaker 1: there was an eye side of students, then that's going
Speaker 1: to count as something that's within their official job capacities.
Speaker 1: That that really crowds out the ability for individuals and
Speaker 1: these positions to have any sort of religious exercise or
Speaker 1: to act consistent with their faith. So the school district says,
Speaker 1: in part in its response that it would be violating
Speaker 1: the First Amendment prohibition against state establishment of religion if
Speaker 1: it allowed these prayers to go on. Well, some of
Speaker 1: the Supreme Court president of the establishment clause dating back
Speaker 1: to Okay called Everson is concerned about ways in which
Speaker 1: government might use power of education over impressionable students when
Speaker 1: they're in situations where they can be pressured or course
Speaker 1: to do things, to participate in different sorts of religious exercise.
Speaker 1: And so there's a case a lot about not coercing
Speaker 1: students to pray in school or to participate in other
Speaker 1: sorts of religious activities. And so the school is analogizing,
Speaker 1: appointing to some of that case law and saying here,
Speaker 1: if we allowed this sort of activity by the coach
Speaker 1: to go forward, then we'd be running into some of
Speaker 1: those prohibitions where the Supreme Court has interpreted the establishment clause.
Speaker 1: So is the school basically afraid of getting sued by parents?
Speaker 1: I think that that that is a concern that they're raising.
Speaker 1: Whether or not the parents would win or that would
Speaker 1: actually be a strong claim as a different question, but
Speaker 1: that's certainly the sort of argument that they're making because
Speaker 1: that they could run into other sorts of prohibitions on
Speaker 1: the other side if they are too permissive or accommodating
Speaker 1: of this coach. Where does it play in that he's
Speaker 1: a coach in a position of authority and when he
Speaker 1: praised in the middle of the field, his athletes may
Speaker 1: feel pressured to pray with him. I think that was
Speaker 1: one of the things that the Supreme Court was suggesting.
Speaker 1: This case went up to the Supreme Court previously, and
Speaker 1: the Supreme Court denied for Frary, and then it went
Speaker 1: back down to the Ninth Circuit. And one of the
Speaker 1: reasons that the Supreme Court explained it was denying the case,
Speaker 1: then it's because there were some factual issues that seemed
Speaker 1: to be unresolved. So unresolved factual questions like was the
Speaker 1: coach really on duty or not? Is this really sort
Speaker 1: of part of his job performance, and I think the
Speaker 1: facts that might be relevant to this question, or do
Speaker 1: students actually feel pressured to to participate? Is there any
Speaker 1: evidence of that, because that's something that the government can't
Speaker 1: just sort of make a claim about that, you know,
Speaker 1: they'd have to really back up that sort of an argument.
Speaker 1: But the Supreme Court did seem concerned about the fact
Speaker 1: that if a teacher, just because they're a role model
Speaker 1: or just because students look at them a teacher a
Speaker 1: coach can't engage in any outward manifestation of religious space.
Speaker 1: That would be a pretty remarkable expansion of the law
Speaker 1: in a way that at least just as Aldo was suggesting,
Speaker 1: would be problematic. This case has been going on for
Speaker 1: some time. Stephanie, tell us what's been happening procedurally, right, So,
Speaker 1: when he was first bringing this case, it was um
Speaker 1: based on the school district decision to let him go
Speaker 1: because he was giving a prayer um at the fifty
Speaker 1: yards length. And there's some history about what had led
Speaker 1: up to that prayer, but we can talk about that later.
Speaker 1: But so that was appealed to the Ninth Circuit and
Speaker 1: he last then it was appealed to the Supreme Court,
Speaker 1: and all of this is sort of in a preliminary
Speaker 1: procedural posture. The Supreme Court said there were too many
Speaker 1: factual issues to take the case, that they were concerned
Speaker 1: about the way that the Ninth Circuit had described the
Speaker 1: legal standard, and they sent it back. So now the
Speaker 1: case has traveled again through a district court proceeding. There
Speaker 1: was just a oral argument at the Ninth Circuit this
Speaker 1: week about the case, and then we'll see if if
Speaker 1: they rule against him, then I imagine he'll probably applied
Speaker 1: as a suprememporting and and if they rule for him,
Speaker 1: then it will be a question of whether the school
Speaker 1: board wants to appeal to the Supreme Court or not,
Speaker 1: and of course review at the Supreme Court's discretionary so
Speaker 1: the court can decide whether it wants to take that case.
Speaker 1: During the proceedings below, did he explain why he had
Speaker 1: to pray at the fifty yard line after the game
Speaker 1: while their players on the field, so that his attorney
Speaker 1: was asked about that in oral argument and and just
Speaker 1: described his religious beliefs for that he needed to immediately
Speaker 1: give gratitude um for the game. He was willing to
Speaker 1: wait until all the players exited the field um, and
Speaker 1: so you know, there was no need for him to
Speaker 1: be in view of the players. He said he would
Speaker 1: have been okay even waiting like five minutes um. And
Speaker 1: for a number of years he had agreed with the
Speaker 1: request from the school district not to say any prayers
Speaker 1: where students were particip the painting or we're doing it
Speaker 1: at the same time as him, you know, some of
Speaker 1: his students or athletes. So I'm that that was just
Speaker 1: the way that he described his religious belief that the
Speaker 1: school board asked him basically did to the prayer at
Speaker 1: a different times somewhere else, and he says that would
Speaker 1: just be contrary to what he felt compelled to do
Speaker 1: to show gratitude to God. So, now listening to the
Speaker 1: Ninth Circuit arguments, were there any issues that the judges
Speaker 1: were particularly focused on. The judges were focused on a
Speaker 1: few things that I thought were interesting. That there was
Speaker 1: a lot of trying to make sure they understood the
Speaker 1: timeline and UM, making sure that they knew whether or
Speaker 1: not there has been any coercion of students involved, or
Speaker 1: were they they had felt coerced because that's relevant to
Speaker 1: some of the establishment cluster as prudent and so UM
Speaker 1: Coach Kennedy's lawyer was arguing that, you know, after he
Speaker 1: had received the request from the school district years ago
Speaker 1: not to involve students, he had confided that, UM, there
Speaker 1: are no clear complaints that are focused on his behavior,
Speaker 1: and after that, he's having the prayer on his own,
Speaker 1: not involving students, and UH, and the court was just
Speaker 1: trying to make sure they understood the student involvement and
Speaker 1: how that that might affect their experience at the school.
Speaker 1: They were also interested in, UH, some the other claims
Speaker 1: that coach Kennedy brought under the Free exercise class and
Speaker 1: under Title seven that he was being discriminated against for
Speaker 1: his religious leaves. And the judges seemed interested in trying
Speaker 1: to figure out had the school board actually tried to
Speaker 1: offer an accommodation, had they actually been protective as his
Speaker 1: religious leaves um? And was the rules that the school
Speaker 1: board had espoused in its communication with the coach too
Speaker 1: broad such that it would have really troubling effects on
Speaker 1: basically stripping any sort of public employee of their ability
Speaker 1: to practice their religion at all anytime they were in
Speaker 1: view of students. So one of the judges, Judge Morgan Christian, said,
Speaker 1: I strained to see this being a brief, personal, private
Speaker 1: prayer because the coach had expressed his plans and media
Speaker 1: interviews and social media posts and talks to local churches.
Speaker 1: How did that question He seems like he's expressing his
Speaker 1: opinion there. Yeah, And that was that was definitely an
Speaker 1: important part of the argument. The attorney's response there was that, um,
Speaker 1: you know, private in the sense that he's not including
Speaker 1: the student, he's not, um, you know, trying to include
Speaker 1: other members of the audience. There has the media about
Speaker 1: him defending his right to continue to do that and
Speaker 1: so he's trying to, in the court of law and
Speaker 1: the court of public opinion, try to defend his ability
Speaker 1: to continue. But that doesn't mean that the prayer itself.
Speaker 1: He's trying to make it a spectacle. And we know
Speaker 1: that this is the panel that refe used to grant
Speaker 1: t r O, which is a different standard. But still,
Speaker 1: did you see the court leaning in any direction? I
Speaker 1: think that the court is gonna be probably engaged in
Speaker 1: a pretty fact specific analysis here. And there were a
Speaker 1: couple of times where the court was describing what they
Speaker 1: thought the timeline had been or what involvement of students
Speaker 1: had been, and sometimes attorneys on both sides were correcting
Speaker 1: them and pointing them to other areas in the record.
Speaker 1: So I think the court's ruling is likely going to
Speaker 1: focus on whether or not when they go back and
Speaker 1: look at that record evidence, the photos, the videos, and
Speaker 1: i'm in the declarations from students, doesn't seem like there
Speaker 1: is some sort of actual coercion going on here or not. Um,
Speaker 1: I think it's likely that we'll see a ruling in
Speaker 1: that vein. I'm not sure if they will address if
Speaker 1: you're exercise or the title seven arguments at much length.
Speaker 1: But I think that's those fair important part of the case,
Speaker 1: and one that the Supreme Court for Justices at the
Speaker 1: Supreme Court when this came at last time, signaled that
Speaker 1: that they're interested in and they think um would have
Speaker 1: had enough merit that would have been worthwhile to consider.
Speaker 1: The last time around, you mentioned that before the court
Speaker 1: the Supreme Court didn't take the case, but explained that
Speaker 1: opinion by Justice Alito and who joined in it. That's right.
Speaker 1: So the Court declined to take the case on this
Speaker 1: free speech grounds because they said that there were some
Speaker 1: a lot of factual issues about whether or not he
Speaker 1: was on duty or off duty, or what exactly was
Speaker 1: sort of involved in the scope of his teaching, and
Speaker 1: what the school district was requiring surrounding that. So that's
Speaker 1: what they were saying about the speech claim. But that's
Speaker 1: why they denied the cert petition. At least, this is
Speaker 1: what Justice Alito's um concurring opinion said. But Justice Lado said,
Speaker 1: no party has asked us to consider whether the district court,
Speaker 1: or excuse me, the school district was also violating Title seven,
Speaker 1: or the Free Exercise Clause in the First Amendment of
Speaker 1: the Federal Constitution. And indicated that there was some interest
Speaker 1: in considering those issues. And then um, there were three
Speaker 1: other justices that joined on to that opinion. So just
Speaker 1: suppose this case goes up to the Supreme Court that
Speaker 1: seems to indicate there are at least four justices on
Speaker 1: the Coaches side. Let's say put it colloquially on the
Speaker 1: Coaches side, and then you also have Justice Amy Coney Barrett.
Speaker 1: And this is a court that is very protective of
Speaker 1: religious rights and seems to in the last few years,
Speaker 1: even before Justice Barrett lean in the direction of religious rights.
Speaker 1: Do you have any doubt that they would consider that
Speaker 1: this was within the coaches religious freedoms? I think what
Speaker 1: we can say with confidence is that the Court seems
Speaker 1: interested in reviewing those claims very carefully. I think the
Speaker 1: Court would I want to make sure that they understood
Speaker 1: some of those facts that they had questions about last time. Um,
Speaker 1: And you know, I can't predict necessarily how they would rule,
Speaker 1: but I do think that they would not rule the
Speaker 1: way that they were concerned. The Ninth Circuit had been
Speaker 1: sort of leaning towards previously that that any time a
Speaker 1: public employee is in view of students, they can't do
Speaker 1: anything religious such that a teacher would even get in
Speaker 1: hot water if they set a private prayer over their
Speaker 1: lunch and view of students. So I think what we
Speaker 1: can confidently say is that sort of ruling is out
Speaker 1: of bounds, and that the Print Court would if this
Speaker 1: case made it up to the Supreme Court again, the
Speaker 1: Sprint Court will pay a lot of attention to those
Speaker 1: other claims involving not just history speech tripes, but his
Speaker 1: pre exercise rights um and his rights under Title seven.
Speaker 1: Thanks for being the Bloomberg Laws Stephanie. That's Stephanie Barkley,
Speaker 1: a professor at the University of Notre Dame Law School.
Speaker 1: And that's it for the sedition of the Bloomberg Law Podcast.
Speaker 1: I'm June Grosso. Thanks so much for listening, and remember
Speaker 1: you can always get the latest legal news on our
Speaker 1: Bloomberg Laump podcast. You can find them on Apple Podcasts,
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