WEBVTT - Trump Gag Order May Be Restored in Part 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.680 --> 0:00:14.239 The argument went an hour longer than scheduled as a 0:00:14.320 --> 0:00:17.400 DC Federal Appellate court weighed whether to put back in 0:00:17.560 --> 0:00:21.759 place a gag order that barred Donald Trump from comments 0:00:21.800 --> 0:00:26.360 that target prosecutors, potential witnesses, and courts staff in the 0:00:26.400 --> 0:00:31.159 federal election subversion case. Trump's lawyer John Sower argued that 0:00:31.200 --> 0:00:34.640 the former president has an absolute First Amendment right to 0:00:34.720 --> 0:00:39.000 talk about the case, especially because he's running again for president. 0:00:39.800 --> 0:00:43.479 The order is unprecedented and it says a terrible president 0:00:43.560 --> 0:00:47.080 for future restrictions on corpor political speech. This is a 0:00:47.159 --> 0:00:49.720 radical departure from the only cases that have considered this 0:00:49.840 --> 0:00:54.120 particular form of restriction and restriction on a criminal defenderical 0:00:54.160 --> 0:00:56.480 campaign for public office, and it does so in the 0:00:56.480 --> 0:01:00.480 context of a hotly contested campaign for the high office 0:01:00.480 --> 0:01:02.080 in the United States and America. 0:01:02.160 --> 0:01:06.480 But the three judges seemed skeptical of the absolutist arguments 0:01:06.480 --> 0:01:10.320 he was making. Judge Patricia Millett made a distinction between 0:01:10.480 --> 0:01:14.800 campaign speech and speech aimed at derailing or corrupting the 0:01:14.800 --> 0:01:16.320 criminal justice process. 0:01:17.280 --> 0:01:20.080 I'm not tunning out everyone who speaks for only. This 0:01:20.120 --> 0:01:22.400 does only effect no one's shutting down and everyone's. It 0:01:22.480 --> 0:01:26.200 is only affecting the speech temporarily during a criminal frile 0:01:26.240 --> 0:01:28.640 process by someone who has indicted as a felon. No 0:01:28.680 --> 0:01:30.880 one here is threatening the First Amendment. 0:01:30.880 --> 0:01:36.160 Broadly, there's limited legal precedent for restricting speech of political candidates, 0:01:36.400 --> 0:01:39.600 and the stakes are high given the volume and intensity 0:01:39.600 --> 0:01:43.120 of Trump's public comments about the case and the massive 0:01:43.200 --> 0:01:47.560 public platform he holds. Joining me is Joshua Castenberg, a 0:01:47.560 --> 0:01:50.680 professor at the University of New Mexico Law School and 0:01:50.760 --> 0:01:54.760 a former judge in the US Air Force. Trump's lawyer 0:01:54.800 --> 0:01:59.920 pushed an absolutist argument that Trump's speech can't be restrict 0:02:00.080 --> 0:02:00.840 did at all. 0:02:01.600 --> 0:02:05.120 Well, so a person does not have the right to 0:02:05.280 --> 0:02:09.440 try to affect or alter the outcome of a trial 0:02:09.560 --> 0:02:16.000 by intimidating witnesses, intimidating judges, intimidating jurors. But they do 0:02:16.040 --> 0:02:18.280 have a right to defend themselves in the court of 0:02:18.320 --> 0:02:22.360 public opinions. And there's an old case on point called 0:02:22.360 --> 0:02:27.079 Bridges versus California, where a labor leader named Harry Bridges 0:02:27.440 --> 0:02:31.600 was accused of trying to chill a jury chill a 0:02:31.680 --> 0:02:36.720 prosecution against him, and Bridges was held in contempt. You know, 0:02:36.800 --> 0:02:40.160 Harry Bridges was not the most popular of individuals among 0:02:40.200 --> 0:02:42.359 the powers that be because he was the president of 0:02:42.440 --> 0:02:46.200 the Longshoreman's Union and in the midst of the depression 0:02:46.320 --> 0:02:50.200 had engaged in some strike activity. He did, to a 0:02:50.200 --> 0:02:53.560 certain degree, do what Trump is doing now, which is 0:02:54.080 --> 0:02:57.880 take his case to the public. The difference, though, is 0:02:57.919 --> 0:03:03.880 that Bridges was conveying to the public that the longshoreman 0:03:04.000 --> 0:03:08.120 would go on strike again if the prosecution didn't back 0:03:08.200 --> 0:03:12.120 off on him. That's fundamentally different, though, than these hints 0:03:12.160 --> 0:03:16.360 of direct threats to jurors, to the judge, to the prosecutor. 0:03:16.520 --> 0:03:20.760 So it's not a slam dunk case for the former president. 0:03:21.200 --> 0:03:24.080 On the other hand, he does have First Amendment rights, 0:03:24.120 --> 0:03:26.720 and he has the rights to make political speech, and 0:03:26.800 --> 0:03:29.960 so the gag order has to be crafted very narrowly 0:03:30.040 --> 0:03:33.600 because his right to make political speech includes his right 0:03:33.680 --> 0:03:36.240 to object to being prosecuted for a case that he 0:03:36.320 --> 0:03:41.000 believes and some of his followers believe, is being done 0:03:41.040 --> 0:03:43.560 to affect the presidential election against him. 0:03:43.800 --> 0:03:46.600 Trump's attorney said the test was whether there was a 0:03:46.640 --> 0:03:50.920 clear and present danger resulting from his speech. But the 0:03:51.120 --> 0:03:54.960 judges said that Supreme Court President requires there be a 0:03:55.080 --> 0:03:59.680 balancing test that weighs First Amendment rights against protecting the 0:03:59.840 --> 0:04:02.480 entire tegrity of a trial by restricting some of the 0:04:02.520 --> 0:04:06.000 defendant speech. Are the judges writer, or is the defense 0:04:06.080 --> 0:04:06.760 right right? 0:04:07.040 --> 0:04:07.200 Oh? 0:04:07.240 --> 0:04:10.040 The judges are right. Here's the thing. You can have 0:04:10.080 --> 0:04:13.680 an absolutist view of the First Amendment, but when you 0:04:13.760 --> 0:04:17.360 become a defendant or a witness in a criminal case, 0:04:17.760 --> 0:04:22.359 your First Amendment rights do not include putting fear into 0:04:22.400 --> 0:04:26.200 the judicial process. And that's where the balancing test comes up. 0:04:26.240 --> 0:04:29.600 Trump's attorneys are citing to Oliver Wendell Holmes Junior's a 0:04:29.680 --> 0:04:32.440 clear and present change er test that he created in 0:04:32.480 --> 0:04:36.680 a dissent after World War One. That test has nothing 0:04:36.720 --> 0:04:41.640 to do specifically with a defendant on trial. That test 0:04:41.720 --> 0:04:44.720 has to do with general life speech that's made an 0:04:44.720 --> 0:04:48.240 opposition to some government program, and in that case it 0:04:48.279 --> 0:04:51.240 was the draft in World War One. That test has 0:04:51.320 --> 0:04:55.880 nothing to do specifically with a defendant on trial. That 0:04:56.040 --> 0:04:59.240 test has to do with general life speech that's made 0:04:59.240 --> 0:05:02.719 an opposition into some government program, and in that case 0:05:02.760 --> 0:05:04.600 it was the draft in World War one. 0:05:05.680 --> 0:05:09.240 Judge Millett also posed some questions about the potential that 0:05:09.360 --> 0:05:13.400 Trump would try to intimidate witnesses, and she used the 0:05:13.440 --> 0:05:15.960 example of former Vice president Mike Pence. 0:05:16.600 --> 0:05:20.080 Let's assume former Vice President Mike Pence is going to 0:05:20.120 --> 0:05:27.920 testify and it's the night before his testimony. Couldn't the 0:05:27.960 --> 0:05:34.600 defendant tweet out, Mike Pence can still fix this. Mike 0:05:34.680 --> 0:05:39.360 Pence can still do the right thing if he says 0:05:39.440 --> 0:05:42.600 the right stuff tomorrow. First of all, is that communicating 0:05:42.600 --> 0:05:43.120 with the witness? 0:05:43.640 --> 0:05:47.520 Okay, it's just broadcasting a statement of core political social 0:05:47.600 --> 0:05:49.040 media likely. 0:05:48.880 --> 0:05:53.320 Not trying to protect a witness from intimidation seems like 0:05:53.880 --> 0:05:57.200 perhaps the most important reason for a gag order before 0:05:57.240 --> 0:05:57.760 a trial. 0:05:58.600 --> 0:06:02.960 Yeah, so try to intimidate a witness from testifying to 0:06:03.040 --> 0:06:06.520 the truth. What I would say on that is, if 0:06:06.560 --> 0:06:10.760 there's evidence that he's trying to affect pensive testimony from 0:06:11.440 --> 0:06:15.920 not testifying truthfully, then you've got an obstruction of justice. 0:06:15.920 --> 0:06:18.680 In order to prevent a perversion of the judicial process, 0:06:18.720 --> 0:06:22.320 the judge would be in her right or his right 0:06:23.000 --> 0:06:27.560 to issue a ruling a gag order on the individuals. 0:06:27.960 --> 0:06:30.280 So I think the question from the judges and the 0:06:30.360 --> 0:06:33.800 right in that particular case. But you know, Trump is 0:06:33.960 --> 0:06:37.479 very good at saying one thing and then just saying, well, 0:06:37.600 --> 0:06:39.880 you misinterpreted me. And I have a right to speak 0:06:39.960 --> 0:06:43.320 my mind and I have a right to campaign for office. Well, 0:06:43.640 --> 0:06:45.960 both of those are true. He certainly has a right 0:06:46.000 --> 0:06:48.600 to speak his mind, and he certainly has a right 0:06:48.640 --> 0:06:51.720 to campaign for office. But he doesn't have a right 0:06:52.360 --> 0:06:55.960 to pervert the judicial process. And that's where the balancing 0:06:56.040 --> 0:06:56.920 test comes in. 0:06:57.360 --> 0:06:59.839 It looked to me like this was a narrowly tailored order, 0:07:00.279 --> 0:07:03.800 but they did suggest it was broad and that there 0:07:03.880 --> 0:07:08.640 was a distinction between threats and harassment of prosecutors versus 0:07:08.680 --> 0:07:10.600 threats to witnesses or jurors. 0:07:11.640 --> 0:07:14.920 Yeah, they were commenting on Jack Smith's tough skin, and 0:07:15.000 --> 0:07:18.000 the general public would know who Jack Smith is right now. 0:07:18.040 --> 0:07:21.280 And he's in a different role because he's a prosecutor 0:07:21.360 --> 0:07:24.360 than being a juror or a witness. And you know, 0:07:24.560 --> 0:07:27.400 what there is is a mindset, and it's a mindset 0:07:27.520 --> 0:07:31.720 that has come in regarding prosecutors that prosecutors. 0:07:31.080 --> 0:07:32.239 Have to have thick skins. 0:07:32.240 --> 0:07:35.280 They're going to get accused of things, including in court 0:07:35.400 --> 0:07:39.680 sometimes by defense counsel, and they can't fire back, and 0:07:40.000 --> 0:07:44.040 I think that's what's going on here. I mean, Jack Smith, 0:07:44.200 --> 0:07:48.000 I don't think has presented any real evidence yet, and 0:07:48.080 --> 0:07:52.040 maybe there is evidence there that Trump's statements have resulted in, 0:07:52.800 --> 0:07:55.720 you know, a real chill to the ability of the 0:07:55.760 --> 0:08:01.120 prosecutors to do their job as ethical prosecutors. I suppose 0:08:01.480 --> 0:08:06.640 what you could make the argument on is that today, 0:08:06.920 --> 0:08:11.880 when someone liked Donald Trump or someone of public importance 0:08:12.720 --> 0:08:15.840 makes an allegation against someone else, in the world of 0:08:15.960 --> 0:08:19.600 artificial intelligence, in the world of people being able to 0:08:19.640 --> 0:08:23.200 mask who they are as people in terms of their 0:08:23.240 --> 0:08:27.160 real identity, you get all kinds of nasty emails and 0:08:27.280 --> 0:08:31.200 phone calls and bots thrown your way. I've experienced that 0:08:31.320 --> 0:08:34.560 I gave a very neutral comment to the New York 0:08:34.640 --> 0:08:38.600 Times in twenty and seventeen or twenty and sixteen about 0:08:39.040 --> 0:08:42.959 boie Bergdal and all I did was give a history 0:08:43.000 --> 0:08:45.360 of the charge that he was charged with, which was 0:08:45.679 --> 0:08:48.720 desertion also in the face of the enemy and the like. 0:08:48.880 --> 0:08:50.240 And I got a. 0:08:50.200 --> 0:08:53.600 Dozen or more kind of hate emails that my way. 0:08:53.679 --> 0:08:55.480 And it was hard to tell whether they were real 0:08:55.559 --> 0:08:59.000 people in the United States or bots doing it, but 0:08:59.040 --> 0:09:01.160 they seem to know enough about me based on a 0:09:01.200 --> 0:09:04.360 public bio to do that. And I've talked to prosecutors, 0:09:04.960 --> 0:09:07.120 and I've talked to a couple of judges who've said 0:09:07.200 --> 0:09:13.520 on cases that involve people of real important significance, and 0:09:13.679 --> 0:09:16.720 they say it's become routine that they get harassed. And 0:09:16.800 --> 0:09:19.920 so I think Jack Smith's side has a point that 0:09:20.840 --> 0:09:25.040 when Trump argues that you know, he's being prosecuted as 0:09:25.040 --> 0:09:27.800 a political vendetta and he's going to go after Jacksmith, 0:09:27.840 --> 0:09:30.920 he encourages his people to do that, that there really 0:09:31.000 --> 0:09:33.880 is a threat to the judicial process, and that means 0:09:33.880 --> 0:09:37.480 there's a threat to democracy. But the judges are supposed 0:09:37.520 --> 0:09:41.079 to maintain and protect the integrity of the judicial process. 0:09:41.160 --> 0:09:44.560 And I think out of this some of the gag 0:09:44.679 --> 0:09:47.160 order will survive, but some of it will be narrowed. 0:09:47.880 --> 0:09:48.120 Yeah. 0:09:48.160 --> 0:09:51.600 Do you think the narrowing will be basically taking the 0:09:51.640 --> 0:09:53.160 prosecutors out of the equation. 0:09:54.200 --> 0:09:56.800 Yes, I think that's where the narrowing will be, and 0:09:56.880 --> 0:09:59.760 they'll go back to the traditional model of the prosecutor 0:10:00.160 --> 0:10:02.880 to have a tough skin and is in a different 0:10:02.920 --> 0:10:04.000 position altogether. 0:10:04.679 --> 0:10:08.160 Although we do know that all the prosecutors involved in 0:10:08.200 --> 0:10:11.760 these criminal and civil cases have said that they've been 0:10:11.840 --> 0:10:14.880 threatened and their staffs have been threatened. So now the 0:10:14.920 --> 0:10:17.199 defense says, if they lose this, they're going to go 0:10:17.240 --> 0:10:20.439 to the Supreme Court. The Supreme Court has the option 0:10:20.520 --> 0:10:22.800 of taking the case or not taking the case. Do 0:10:22.840 --> 0:10:25.760 you think the Supreme Court will take a gag order 0:10:25.800 --> 0:10:26.439 case like this? 0:10:27.520 --> 0:10:30.720 I don't think the Supreme Court will take a gag 0:10:30.840 --> 0:10:35.719 order case. Normally, we are talking about the former president 0:10:35.840 --> 0:10:39.680 who is campaigning to be president, and that does make 0:10:39.720 --> 0:10:42.439 it somewhat different. I would say it's a fifty to 0:10:42.520 --> 0:10:45.800 fifty chance they will on the one, and the Supreme 0:10:45.800 --> 0:10:48.559 Court doesn't want to set a precedent in terms of 0:10:48.640 --> 0:10:50.920 gag orders. They would set a president in terms of 0:10:50.920 --> 0:10:54.400 a contempt finding. But you know, you've got a former 0:10:54.440 --> 0:10:58.120 president running once more for president, and this has an 0:10:58.200 --> 0:11:02.240 unusual constitutional aspect to it. Beyond the power of the judiciary. 0:11:02.320 --> 0:11:06.560 It has the unusual aspect of how does a candidate 0:11:06.600 --> 0:11:11.199 who's running for office the nation's highest office, have to 0:11:11.240 --> 0:11:16.240 be confined in his speech while facing criminal trials. It's 0:11:16.400 --> 0:11:21.520 almost like it invites the separation of powers analysis to it. 0:11:21.520 --> 0:11:25.680 It's once again unprecedented, which we've said so many times 0:11:26.440 --> 0:11:27.800 with respect to Trump. 0:11:28.200 --> 0:11:30.960 You know, it reminds me in a way of a 0:11:31.080 --> 0:11:34.920 case involving judicial power and the presidency, but it's not 0:11:35.040 --> 0:11:38.679 quite it's not really on point. But it's a nineteen 0:11:38.720 --> 0:11:43.720 twenty four case called ex Parte Grossman. Grossman was a 0:11:43.760 --> 0:11:49.240 bootlegger in Chicago and found guilty of contempt in front 0:11:49.280 --> 0:11:52.880 of Judge Kennesaw Mountain Landis, who you know, is sort 0:11:52.880 --> 0:11:55.480 of famous for later becoming the first commissioner of Major 0:11:55.520 --> 0:12:02.200 League Baseball, and the contempt or was simply because Landis 0:12:02.280 --> 0:12:04.760 ordered him to stop making and selling booze and he 0:12:04.800 --> 0:12:08.160 wouldn't do it. On the very first day of Calvin 0:12:08.200 --> 0:12:12.000 Coolidge's presidency, after Harding dies and Coolidge gets born in 0:12:12.880 --> 0:12:18.120 Coolidge pardons Grossman, and Grossman was a contributor to the 0:12:18.120 --> 0:12:21.040 Illinois Republican Party, So you can kind of understand how 0:12:21.040 --> 0:12:23.400 this happened. It was one of the very first things 0:12:23.400 --> 0:12:28.360 Calvin Coolidge did. Landis made the decision that because a 0:12:28.440 --> 0:12:32.600 contempt finding wasn't a conviction in the classic sense, but 0:12:32.720 --> 0:12:35.680 rather was to uphold the power of the judiciary over 0:12:35.800 --> 0:12:40.600 miscreants who violate judicial orders, that Coolidge didn't have the 0:12:40.640 --> 0:12:43.920 authority to issue a pardon. It goes up to the 0:12:43.960 --> 0:12:48.760 Supreme Court. The Supreme Court decides that a president has 0:12:48.920 --> 0:12:53.600 really unique authorities that are broad. And when I think 0:12:53.640 --> 0:12:56.360 about that case, and I think about Trump running for 0:12:56.400 --> 0:13:00.040 the office of the presidency, I would say, normally the 0:13:00.040 --> 0:13:02.880 Supreme Court wouldn't take up even come close to taking 0:13:02.960 --> 0:13:04.959 up a gag order, but in this case they might 0:13:05.000 --> 0:13:07.439 because it does involve the power of the presidency. 0:13:08.240 --> 0:13:12.120 Donald Trump has presented more issues over the power of 0:13:12.120 --> 0:13:16.840 the presidency, probably than any other president in history. Thanks 0:13:16.880 --> 0:13:21.120 so much, josh That's Professor Joshua Castenberg of the University 0:13:21.120 --> 0:13:22.640 of New Mexico Law School. 0:13:23.360 --> 0:13:26.560 We need a president who's going to restore law and 0:13:26.840 --> 0:13:29.240 order in the United States of America. 0:13:29.320 --> 0:13:34.079 Texas Governor Greg Abbott endorsed Donald Trump on Sunday, focusing 0:13:34.120 --> 0:13:37.480 on the hardline immigration policies that have played a role 0:13:37.640 --> 0:13:41.160 in both their political careers. The border is a centerpiece 0:13:41.200 --> 0:13:44.360 of Abbot's agenda in an escalating fight with the Biden 0:13:44.360 --> 0:13:48.480 administration over immigration, The three term governor has approved billions 0:13:48.480 --> 0:13:52.679 of dollars in new border wall construction, authorized razor wire 0:13:52.760 --> 0:13:55.840 on the banks of the Rio Grande, and bust thousands 0:13:55.840 --> 0:13:59.680 of migrants to democratic led cities, and Abbot is expected 0:13:59.679 --> 0:14:01.880 to sow on what would be one of Texas's most 0:14:01.920 --> 0:14:05.640 aggressive measures to date, a law that allows police officers 0:14:05.640 --> 0:14:09.560 to arrest migrants suspected of entering the country illegally and 0:14:09.600 --> 0:14:14.040 empowers judges to effectively deport them. Joining me is immigration 0:14:14.160 --> 0:14:17.120 law expert Leon Fresco, a partner at Holland and Knight. 0:14:17.960 --> 0:14:21.560 He's expected to sign Greg Abbott one of the harshest 0:14:21.760 --> 0:14:25.320 anti immigration laws. It makes it a state crime to 0:14:25.440 --> 0:14:28.960 cross into Texas from another country without papers. Is that 0:14:29.000 --> 0:14:30.680 basically what it is or is there more to tell 0:14:30.680 --> 0:14:31.360 about what it is? 0:14:31.400 --> 0:14:34.720 Actually? That's basically the law. The law is intended to 0:14:34.840 --> 0:14:38.840 give the state of Texas the ability to basically stop 0:14:38.840 --> 0:14:43.400 a legal immigration into Texas by allowing state and local 0:14:43.440 --> 0:14:47.360 police officers the ability to arrest someone that they've witnessed 0:14:47.400 --> 0:14:50.760 crossing the border and telling them you have two options. 0:14:50.840 --> 0:14:53.400 Go back, which would be their preferred option. They don't 0:14:53.400 --> 0:14:55.640 actually want to put people in jail because of what 0:14:55.680 --> 0:14:58.720 a huge resource constraint that's going to be. But the 0:14:58.760 --> 0:15:01.040 second option is to say, if you don't go back, 0:15:01.080 --> 0:15:03.240 we're going to put you in jail for this misdemeanor 0:15:03.600 --> 0:15:07.080 that we've created, which is called crossing the border illegally 0:15:07.160 --> 0:15:11.240 and during the State of Texas. Now having said that, 0:15:11.280 --> 0:15:15.160 the state of Arizona tried this same thing in twenty 0:15:15.200 --> 0:15:18.200 eleven twenty twelve, and that's what led to the famous 0:15:18.200 --> 0:15:22.160 Supreme Court case called Arizona versus the United States, where 0:15:22.240 --> 0:15:27.160 the Supreme Court decided that that was preempted by federal law. 0:15:27.280 --> 0:15:29.960 So you couldn't pass a law like that because only 0:15:30.000 --> 0:15:34.080 the federal government had the ability to punish this kind 0:15:34.080 --> 0:15:38.440 of unauthorized immigration. And the theory at the time was 0:15:39.000 --> 0:15:42.360 that the conflicts between what states might do and the 0:15:42.360 --> 0:15:46.000 federal government could lead to all of these unforeseen public 0:15:46.120 --> 0:15:50.040 policy outcomes and foreign policy outcomes, that it was very 0:15:50.040 --> 0:15:53.440 important that the United States speak with one voice and 0:15:53.560 --> 0:15:58.960 one comprehensive strategy visa the immigration It may be that 0:15:59.080 --> 0:16:02.720 now that the Justice have changed in composition because the 0:16:02.760 --> 0:16:07.200 only guaranteed vote you would have for the Arizona case, 0:16:07.360 --> 0:16:10.440 Justice Roberts did vote on the side of the federal 0:16:10.440 --> 0:16:13.720 government in the Arizona case. So you know, Justice Roberts 0:16:13.760 --> 0:16:18.120 will not probably decide to overturn Arizona but then you 0:16:18.280 --> 0:16:21.920 probably also have Justice Brown Jackson and Justice Soda Bayor 0:16:22.040 --> 0:16:24.840 and Justice Kagan. Justice Kagan at the time had been 0:16:24.920 --> 0:16:28.520 recute because he's been working on this matter as Solicitor General. 0:16:28.560 --> 0:16:32.080 But you'd assume those four would vote to uphold Arizona. 0:16:32.600 --> 0:16:34.720 And then the question is going to be, well, we 0:16:34.800 --> 0:16:39.280 know Thomas and Alito already voted to allow states to 0:16:39.320 --> 0:16:42.320 have this immigration authority, so nono. The question is, well, 0:16:42.360 --> 0:16:45.680 what about Kavanagh Borsa, said Cony Barrett, And that's where 0:16:45.720 --> 0:16:50.840 it's gonna matter. Will vote three vote to overturn the 0:16:51.120 --> 0:16:55.240 Arizona law, And the question is how will they do it, 0:16:55.360 --> 0:16:57.960 because there's a broadway and a narrow way to do it. 0:16:58.400 --> 0:17:01.440 The narrow way would be to say, look, this is 0:17:01.480 --> 0:17:06.280 completely consistent with federal immigration laws. So just like a 0:17:06.359 --> 0:17:09.679 state can punish drugs, so does the federal government. We 0:17:09.720 --> 0:17:13.040 don't tell states you can't punish illegal drugs in your 0:17:13.119 --> 0:17:17.119 state because the federal government punishes illegal drugs. No, we 0:17:17.240 --> 0:17:20.560 allow them to work in fandom to do this, and 0:17:20.680 --> 0:17:22.960 so that might happen as if they say, look, these 0:17:23.000 --> 0:17:26.879 are not inconsistent. These are completely consistent. So only in 0:17:26.960 --> 0:17:31.879 that scenario that permitted, or they may actually do something 0:17:32.040 --> 0:17:36.960 very broad and say that the Constitution doesn't in any 0:17:37.000 --> 0:17:40.399 way prevent state from having immigration laws, and that would 0:17:40.400 --> 0:17:43.560 sort of take us back to the beginning of immigration laws, 0:17:43.640 --> 0:17:47.120 to the eighteen eighties where that issue was litigated and 0:17:47.760 --> 0:17:50.000 the court said, well, even though there's nothing in the 0:17:50.040 --> 0:17:55.400 Constitution that explains this, we still must assume because there's 0:17:55.400 --> 0:17:57.240 no way you can have a federal government if it 0:17:57.320 --> 0:18:01.960 can't control immigration. So maybe this will not be the case, 0:18:02.040 --> 0:18:04.040 and they will go back to the pre eighteen eighty 0:18:04.240 --> 0:18:06.639 view that if the sting is not written in the Constitution, 0:18:07.200 --> 0:18:09.880 that means that the states have the ability to regulate 0:18:09.960 --> 0:18:13.520 it in addition, and so that may happen here and 0:18:13.600 --> 0:18:15.760 there may be an ability for the states to actually 0:18:15.840 --> 0:18:18.480 enforce them a grace law. So we'll see how broadly 0:18:18.840 --> 0:18:22.280 or narrowly, or perhaps not at all. The Arizona case 0:18:22.320 --> 0:18:23.719 from twenty twelve is changed. 0:18:24.280 --> 0:18:29.840 The last term, though, wasn't there a surprising ruling against Texas? 0:18:29.840 --> 0:18:31.080 And I think it was Missouri. 0:18:31.680 --> 0:18:34.840 So there was two cases and they had split views. 0:18:34.920 --> 0:18:40.320 There was one case involving the Texas prosecutorial discretion standards, 0:18:40.840 --> 0:18:43.679 where the Supreme Court said, look, Ice is allowed to 0:18:43.680 --> 0:18:47.760 have a prosecutorial discretion memo, and the federal government can't 0:18:47.760 --> 0:18:53.640 be sued for not prosecuting people within this prosecutorial discretion 0:18:53.800 --> 0:18:56.159 memo that states won prosecuted. It's not up to the 0:18:56.200 --> 0:19:00.280 states to determine who the federal government should prosecute. So 0:19:00.400 --> 0:19:03.359 that's different than they can the states take matters into 0:19:03.359 --> 0:19:06.120 their own hands. So what we know based on last 0:19:06.200 --> 0:19:09.600 year that the states cannot dictate who the federal government 0:19:10.480 --> 0:19:13.560 needs to prosecute. But now we would have a second issue, well, 0:19:13.600 --> 0:19:15.760 can the states take matters into their own hands and 0:19:15.880 --> 0:19:18.760 prosecute if the federal government doesn't. And so there was 0:19:18.800 --> 0:19:22.600 a case called Kansas versus Garcia that was a little 0:19:22.600 --> 0:19:25.199 bit of a deviation from Arizona for the purposes of 0:19:25.280 --> 0:19:29.160 employment verification, where they said the state of Kansas could 0:19:29.240 --> 0:19:34.280 prosecute people who had used fake identities to get jobs 0:19:34.359 --> 0:19:37.040 because of the reason of immigration. And there had been 0:19:37.080 --> 0:19:39.960 an argument in that case that it was prehisted, and 0:19:40.080 --> 0:19:42.160 the court said, no, it's not pre emptant. The state 0:19:42.160 --> 0:19:46.600 of Kansas could prosecute people who use faith forms to 0:19:46.880 --> 0:19:49.960 get jobs, even if it was an immigration reason for 0:19:50.119 --> 0:19:52.920 using the faith form. And so it will be very 0:19:52.920 --> 0:19:56.200 interesting to see whether they continue to go down that 0:19:56.359 --> 0:19:59.520 route of the Kansas case to allow states to take 0:19:59.560 --> 0:20:02.439 manners of to their own hands, or whether they just 0:20:02.640 --> 0:20:05.520 uphold Arizona and not allow this to happen. 0:20:06.119 --> 0:20:09.879 Immigrants groups are said that they're going to oppose this, 0:20:10.000 --> 0:20:13.920 that it's unconstitutional, they say it's discriminatory and it will 0:20:14.000 --> 0:20:16.840 victimize people of Latino descent. 0:20:17.520 --> 0:20:20.240 Well, I think the question will be a matter of implementation, 0:20:20.400 --> 0:20:23.679 and the Supreme Court has not been too kind to 0:20:23.960 --> 0:20:29.000 these facial challenges where we assume upfront that the brunt 0:20:29.040 --> 0:20:32.719 of the enforcement is going to be toward Latino immigrants 0:20:32.720 --> 0:20:35.600 and not talking about who's coming, because obviously people if 0:20:35.600 --> 0:20:39.320 they're coming from Mexico into the United States and from 0:20:39.320 --> 0:20:42.679 the Western Hemisphere, are more likely than not going to 0:20:42.720 --> 0:20:45.240 be from a Western Hemisphere country, which might be deaned 0:20:45.240 --> 0:20:48.520 the Latino Hispanic country. Sure, but that's not what they 0:20:48.560 --> 0:20:52.240 mean by racial profiling here. They mean what about if 0:20:52.280 --> 0:20:55.240 they didn't actually see the person crossing, but they just 0:20:55.359 --> 0:20:59.440 assume minutes later by based on how someone looks that 0:20:59.800 --> 0:21:03.439 they were someone who just crossed the statue. Doesn't prevent 0:21:03.520 --> 0:21:06.359 this kind of arrest and so this should be the 0:21:06.440 --> 0:21:09.040 kind of statues that should be enjoined because it is 0:21:09.080 --> 0:21:12.760 too prone to this kind of racial abuse, where people 0:21:12.760 --> 0:21:15.200 who look a certain way are more likely or less 0:21:15.320 --> 0:21:18.040 likely to be viewed as someone who just crossed the 0:21:18.119 --> 0:21:21.720 border than somebody who looks a different way. The Supreme Court, 0:21:21.840 --> 0:21:24.560 even in the Arizona case, but in many other cases 0:21:24.560 --> 0:21:29.000 since then, has basically taken the tact of saying, don't 0:21:29.160 --> 0:21:32.280 come to me with these theoretical claims. If this is happening, 0:21:32.640 --> 0:21:36.320 who wants it starts happening, and then will address it 0:21:36.400 --> 0:21:39.639 then and will decide whether this is too much of 0:21:39.680 --> 0:21:42.360 a radical law because of the way its being implemented. 0:21:42.359 --> 0:21:45.720 It's to continue to be allowed to be implemented, but preemptively. 0:21:46.160 --> 0:21:49.440 We're no longer going to sort of start facially striking 0:21:49.520 --> 0:21:52.120 down these laws when we have no idea how they're 0:21:52.160 --> 0:21:53.000 going to be implemented. 0:21:53.760 --> 0:21:57.320 Lenn is part of this just messaging that Texas is 0:21:57.400 --> 0:22:00.919 trying every way it can to message don't come to 0:22:01.080 --> 0:22:04.679 Texas because this will take years to get through the system. 0:22:04.800 --> 0:22:08.119 Right. I think if the courts are being faithful to 0:22:08.359 --> 0:22:11.720 the President, then yes, they have to enjoin the law, 0:22:12.359 --> 0:22:14.199 and then let it work its way up to the 0:22:14.240 --> 0:22:17.240 Supreme Court. Now having said that, the Supreme Court may 0:22:17.960 --> 0:22:20.960 somehow lift a say and say, hey, there's a likelihood 0:22:21.000 --> 0:22:23.040 of success here. I don't know if they do that 0:22:23.080 --> 0:22:25.720 on a rapid basis, or if they'd wait all the 0:22:25.720 --> 0:22:28.840 way through before they would do something like overturn a 0:22:28.920 --> 0:22:32.040 prior president. I would assume they'd wait all the way through, 0:22:32.080 --> 0:22:34.440 and they'd keep to say all the way through, and 0:22:34.560 --> 0:22:37.400 so the actual briefing on the merits, which as you say, 0:22:37.440 --> 0:22:41.080 will take years. But I do think it's fair to 0:22:41.119 --> 0:22:44.200 say that if this law were to actually go into effect, 0:22:44.720 --> 0:22:47.439 and you were to actually put the choice to people, 0:22:47.440 --> 0:22:49.520 hey do you want to spend time in jail or 0:22:49.560 --> 0:22:50.960 do you want to just go back to the port 0:22:50.960 --> 0:22:53.800 of entry where you could try again in a different state. 0:22:54.160 --> 0:22:56.159 I don't know how many people might think that second 0:22:56.240 --> 0:22:58.720 choice would be a benefit to the state of sixes. 0:22:59.119 --> 0:23:03.000 And so it does lead you to think that, yes, 0:23:03.119 --> 0:23:05.960 Texas is doing it partly for politics, partly to show 0:23:06.000 --> 0:23:10.080 they're doing everything they can, partly to make set the message. 0:23:10.200 --> 0:23:12.800 All of that. They're still doubts. But I do also 0:23:12.880 --> 0:23:15.639 think that if this were ever to be implemented. It 0:23:15.720 --> 0:23:19.520 certainly might change the calculus that somebody has when they're 0:23:19.520 --> 0:23:22.560 crossing the post of crossing in a different location. 0:23:23.000 --> 0:23:25.720 Coming up next, we'll look at how US Customs and 0:23:25.800 --> 0:23:30.240 Border Protection is paying a data broker for powerful surveillance 0:23:30.359 --> 0:23:33.520 tools to monitor immigrants and others in the country. This 0:23:33.640 --> 0:23:36.880