WEBVTT - SCOTUS Rules Immigrants Can Be Detained Indefinitely 0:00:00.440 --> 0:00:07.960 Yea. This is Bloombird Law with June Brusso from Bloomberg Radio. 0:00:09.200 --> 0:00:12.040 This week, the Supreme Court made it more difficult for 0:00:12.119 --> 0:00:16.120 immigrants to challenge their detention in court while their deportation 0:00:16.239 --> 0:00:19.360 cases are pending. In a pair of cases, the Court 0:00:19.440 --> 0:00:23.800 rule that immigrants can be detained indefinitely without bond hearings 0:00:24.040 --> 0:00:27.600 and that they can't challenge their detentions by banding together 0:00:27.640 --> 0:00:31.000 as a class. During oral arguments. Some of the jostices, 0:00:31.080 --> 0:00:36.760 like Stephen Bryer, expressed concerns about indefinite attention. Everybody gets 0:00:36.800 --> 0:00:39.440 bail hearings that you're going to detain for a significant 0:00:39.479 --> 0:00:43.720 amount of time every criminal case, debtors used to in 0:00:43.800 --> 0:00:48.040 debtor prisons, Mental people being confined in hospitals have the 0:00:48.080 --> 0:00:51.720 equivalent where you're going to day a person, not even 0:00:51.760 --> 0:00:55.280 a criminal, you know, for months and months and months. 0:00:56.520 --> 0:00:58.920 Why aren't they at least entitled to a bail hearing. 0:00:59.160 --> 0:01:03.200 But severalice has suggested the proper procedure would be for 0:01:03.240 --> 0:01:06.920 the immigrants to file a habeas corpus petition, where a 0:01:07.000 --> 0:01:10.120 judge would decide the issue. Here are Justice is Neil 0:01:10.160 --> 0:01:13.960 Gorsch and Amy Coney Barrett, I did not understand Mr 0:01:14.000 --> 0:01:19.080 Reyner to contest that a habeas petition seeking relief on 0:01:19.120 --> 0:01:23.080 a constitutional ground could be entertained by this court on 0:01:23.120 --> 0:01:28.440 the basis that um detention has lasted too long without 0:01:28.480 --> 0:01:32.959 sufficient explanation. You know, if you're bringing a habeas action, 0:01:33.040 --> 0:01:36.120 you do have a judge, so you have a truly neutral, 0:01:36.600 --> 0:01:39.480 uh decision maker as justice of course, just suggesting not 0:01:39.600 --> 0:01:42.280 someone who's a member of the executive branch joining me 0:01:42.319 --> 0:01:45.759 to sort through these decisions. Is Leon Fresco, a partner 0:01:45.760 --> 0:01:49.240 at Hollandon Knight and formerly head of the Justice Department's 0:01:49.280 --> 0:01:53.840 Office of Immigration Litigation. Leon, were these decisions a one 0:01:53.920 --> 0:01:59.280 to punch for immigrants and immigration advocates? Absolutely due, there 0:01:59.400 --> 0:02:02.920 was that only a very difficult day from the standpoint 0:02:03.000 --> 0:02:06.200 that the immigration law. I would say, if you were 0:02:06.200 --> 0:02:08.959 looking at it during the period of somewhere between two 0:02:08.960 --> 0:02:12.360 thousand and nine and two thousand and fifteen two thousand 0:02:12.360 --> 0:02:15.560 and sixteen, both of these cases would have been decided 0:02:15.639 --> 0:02:18.919 completely the other way. And now the Supreme Court has 0:02:19.040 --> 0:02:22.799 changed and the ethos has changed, and now you not 0:02:22.840 --> 0:02:25.480 only have these five four decisions, but you actually have 0:02:25.560 --> 0:02:29.560 decisions with liberal justice assigning onto them that are sort 0:02:29.560 --> 0:02:33.480 of cracking down on immigration lawsuits. And from that standpoint, 0:02:33.520 --> 0:02:36.840 it's a whole new, completely different world than it was before. 0:02:37.320 --> 0:02:42.280 One case was unanimous and Justice Sotomayor wrote the majority opinion. 0:02:42.720 --> 0:02:45.679 The other case on class actions was split six to 0:02:45.800 --> 0:02:50.680 three down ideological lines and Justice Soto Mayor dissented. We 0:02:50.720 --> 0:02:54.399 don't often see Justice Soto Mayor writing a majority opinion 0:02:54.760 --> 0:02:58.960 in immigration cases. Well, it's certainly unusual in this court, 0:02:59.040 --> 0:03:01.639 and it's certainly in usual in a case where it's 0:03:01.720 --> 0:03:05.960 restricting rights of non citizens who want to file lawsuits. 0:03:06.040 --> 0:03:08.440 If you would have had some sort of wager in 0:03:08.480 --> 0:03:11.440 a casino to three years ago, that Justice sort of 0:03:11.480 --> 0:03:15.400 Mayor would have written a decision making it more difficult 0:03:15.440 --> 0:03:18.120 for non citizens to have a right to be released 0:03:18.120 --> 0:03:21.520 from detention. That would have been like seven to one 0:03:21.520 --> 0:03:24.720 odd And now you have such a decision. And so 0:03:25.000 --> 0:03:27.400 really this was a tough day for the advocates in 0:03:27.440 --> 0:03:31.400 the immigration world. So why because we hear her voice 0:03:31.600 --> 0:03:35.880 in the second case where she's an advocate for immigrants. 0:03:36.440 --> 0:03:38.720 Was it because of the text of the statute in 0:03:38.760 --> 0:03:43.600 the first case in this detention regime, nothing anywhere in 0:03:43.640 --> 0:03:47.680 the statute talks about bob hearings and burden of proof 0:03:47.680 --> 0:03:51.000 and anything else. So if the Court was being asked 0:03:51.000 --> 0:03:55.880 to make a decision, does this statute actually require bond hearings. 0:03:56.120 --> 0:03:58.760 Does this statute actually require the burden of proof to 0:03:58.760 --> 0:04:01.400 be on the government. It's not intellectually honest. You can't 0:04:01.400 --> 0:04:03.240 look at a statute book and read any of that 0:04:03.440 --> 0:04:06.240 because none of that's in there. So it seems like 0:04:06.400 --> 0:04:10.520 in that context, the liberal justices gave in and said, look, 0:04:10.560 --> 0:04:12.560 this might be a place where we might want to 0:04:12.600 --> 0:04:16.520 build some credibility and some bipartisanship and come together and 0:04:16.560 --> 0:04:19.880 say the statutory regime doesn't work there. I do think 0:04:19.960 --> 0:04:22.720 that's the intent, because otherwise I don't think you would 0:04:22.720 --> 0:04:26.120 have seen this decision because the path of where these 0:04:26.160 --> 0:04:34.359 decisions were going sen were in giving expensive rights to 0:04:34.440 --> 0:04:37.920 non citizens to have bomb hearings, and now here in 0:04:37.960 --> 0:04:41.080 this case, what the Supreme Court is saying is we 0:04:41.200 --> 0:04:44.840 are going to make people who are in detention for 0:04:44.920 --> 0:04:48.280 extended periods of time go through the process of either 0:04:48.400 --> 0:04:52.880 hiring a lawyer and filing a federal habeas corpus petition, 0:04:53.360 --> 0:04:55.039 or they'll have to figure out how to do it 0:04:55.080 --> 0:04:59.599 themselves pro sed to file these federal habeas petitions. But 0:04:59.680 --> 0:05:02.520 we're not gonna just skip that step and make it 0:05:02.600 --> 0:05:06.280 easier by sort of presuming that in six months you 0:05:06.320 --> 0:05:09.000 get a bond hearing, because the statute doesn't say it. 0:05:09.320 --> 0:05:11.880 And so if the statute doesn't say it, we can't 0:05:11.920 --> 0:05:15.320 as a court start adding things that aren't in the statute. 0:05:15.680 --> 0:05:17.960 That aren't in the statute. It sort of makes sense 0:05:18.040 --> 0:05:21.080 from a literal point of view, but from a practical 0:05:21.120 --> 0:05:24.040 point of view, what it's doing is is it's putting 0:05:24.080 --> 0:05:27.839 a lot more onus on the foreign national who's detained 0:05:28.200 --> 0:05:31.839 to either get a lawyer and have to file a 0:05:31.920 --> 0:05:35.680 federal habeas complaint, which is pretty hard and work intensive, 0:05:36.080 --> 0:05:38.720 and it's either expensive or you've got to find some 0:05:38.839 --> 0:05:42.040 pro bono organization that has resources, or you're gonna have 0:05:42.080 --> 0:05:44.640 to figure out how to argue your own federal court 0:05:44.720 --> 0:05:48.839 habeas petition in order to get yourselves out of indefinite detention. 0:05:49.279 --> 0:05:51.960 And so that's the impact of that decision. And we 0:05:52.000 --> 0:05:54.720 have to back up a little here explain the first decision, 0:05:55.160 --> 0:05:58.240 the facts and what's going on. Right, So what happens 0:05:58.279 --> 0:06:03.279 in this Artiaga Martine cases as follows, you have individuals 0:06:03.320 --> 0:06:08.080 who have actually been deported from the United States and 0:06:08.120 --> 0:06:10.479 then they come back in and they say, during the 0:06:10.600 --> 0:06:14.000 time that I was deported and now that I'm coming 0:06:14.040 --> 0:06:18.080 back in, something has happened whereby I'm now eligible for 0:06:18.200 --> 0:06:22.120 relief from deportation because I'm going to be persecuted in 0:06:22.160 --> 0:06:25.960 the country that I'm fleeing. Now, those people can't get asylum, 0:06:26.080 --> 0:06:29.160 which is a relief that gives you a path to citizenship, 0:06:29.480 --> 0:06:33.640 but they can get something called withholding of removal, which 0:06:33.680 --> 0:06:37.800 says you can stay here in limbo until your country 0:06:37.880 --> 0:06:41.240 has better conditions than what it has today. But what 0:06:41.360 --> 0:06:45.560 happens is if you re enter after you've been deported, 0:06:45.960 --> 0:06:49.120 you are to be detained in the statute for as 0:06:49.120 --> 0:06:51.640 long as it takes for this proceeding to take place. 0:06:52.279 --> 0:06:54.600 And so what was happening is for some people, they 0:06:54.640 --> 0:06:58.280 were being detained for so long that they started filing 0:06:58.440 --> 0:07:01.440 habeas complaints and for the real court saying that they 0:07:01.440 --> 0:07:04.800 should be entitled to a bond hearing, and that that 0:07:04.880 --> 0:07:09.200 bond hearing should determine whether they are actually someone who 0:07:09.360 --> 0:07:10.960 is going to be dangerous or is going to be 0:07:10.960 --> 0:07:13.760 a flight risk, and if not, they should be released. 0:07:14.120 --> 0:07:17.360 And so there was actually decisions from the Third Circuit 0:07:17.440 --> 0:07:20.720 and the Ninth Circuit saying, look, we don't want thousands 0:07:20.720 --> 0:07:24.480 of these habeas decisions coming to our federal courts, so 0:07:24.520 --> 0:07:27.679 we're just gonna make up presumption that after six months 0:07:28.440 --> 0:07:31.320 you get a bond hearing, meaning the government just has 0:07:31.400 --> 0:07:33.960 to give you the bond hearing after six months, and 0:07:34.040 --> 0:07:37.880 they have to decide whether you are a flight risk 0:07:38.080 --> 0:07:43.280 or are dangerous. And the government appealed these decisions, and 0:07:43.360 --> 0:07:45.800 what the Supreme Court said is, look, there's nothing in 0:07:45.880 --> 0:07:47.880 the statute that talks about any of this. This is 0:07:47.920 --> 0:07:51.480 literally all made up by courts. We get white. Courts 0:07:51.480 --> 0:07:54.520 are making this up because it's a convenient thing to 0:07:54.720 --> 0:07:58.320 just say, in six months, we don't presume that you'll 0:07:58.320 --> 0:08:01.000 have to file a federal habea is and it will 0:08:01.040 --> 0:08:03.360 be done on a one by one basis. Let's just 0:08:03.440 --> 0:08:07.520 make this class wide and simple and after six months 0:08:07.960 --> 0:08:10.880 you can just get automatically a bond hearing. Yes, it 0:08:10.880 --> 0:08:14.280 would be much simpler, easier to use framework. But the 0:08:14.320 --> 0:08:18.240 Court said, none of that is actually written anywhere, and 0:08:18.320 --> 0:08:21.160 so courts can't make it up. And so that's why 0:08:21.320 --> 0:08:25.080 the foreign nationals in this case lost. Let's talk about 0:08:25.080 --> 0:08:29.520 the second case, where it becomes more difficult to challenge 0:08:29.760 --> 0:08:33.520 immigration policies in court because you can't do it based 0:08:33.559 --> 0:08:36.840 on a class action. So tell us about the second case. 0:08:37.000 --> 0:08:42.040 What happened there. In the second case, it's basically similar 0:08:42.120 --> 0:08:45.840 facts where you have people coming in from Mexico who 0:08:45.840 --> 0:08:49.480 are detained again after re entering the United States, and 0:08:49.520 --> 0:08:52.959 they're making basically the same claim again that they're entitled 0:08:52.960 --> 0:08:56.760 to bomb hearings after six months of detention, and they're 0:08:56.800 --> 0:08:58.920 trying to do it as a class as opposed to 0:08:59.000 --> 0:09:03.280 one person trying to make precedent for themselves. They're doing 0:09:03.320 --> 0:09:05.480 it as a class so that they can basically get 0:09:05.520 --> 0:09:11.280 a nationwide decision that would say, nationwide, everybody going through 0:09:11.960 --> 0:09:15.640 this process gets a bond hearing if they're still detained 0:09:15.640 --> 0:09:18.360 after six months, if the government hasn't figured out whether 0:09:18.400 --> 0:09:20.240 they're going to give them this relief or not after 0:09:20.320 --> 0:09:23.080 six months, they can't just keep them detained forever. They 0:09:23.080 --> 0:09:25.760 have to give them a bond hearing after six months. 0:09:25.880 --> 0:09:28.920 And so, in addition to the merits of this claim, 0:09:28.960 --> 0:09:31.720 which we talked about two seconds ago, in the other case, 0:09:32.160 --> 0:09:36.840 the Johnson versus Artiaga Martinez case. This case, which is 0:09:36.880 --> 0:09:40.720 the Garland versus a Lamam Gonzalez case, was again one 0:09:40.760 --> 0:09:44.560 where in the lower courts they said that class action 0:09:44.640 --> 0:09:49.160 relief was available, and the Department of Justice appealed this, 0:09:49.400 --> 0:09:52.760 and this was the Trump administration appealed it, but the 0:09:52.880 --> 0:09:56.880 bid the administration kept the appeal going, meaning even they 0:09:57.040 --> 0:10:00.400 wanted to get rid of these class action lawsuits. And 0:10:00.520 --> 0:10:05.640 what really came to bear is a statute which actually says, 0:10:06.120 --> 0:10:09.880 it's called a USC Section twelve fifty two, that federal 0:10:09.920 --> 0:10:14.440 courts do not have jurisdiction to enjoin or restrain the 0:10:14.520 --> 0:10:17.199 operation of provisions of the I and A, and it 0:10:17.240 --> 0:10:20.679 gives a list of them. And so then the question is, well, 0:10:20.720 --> 0:10:23.640 does that mean then that they can't they can't enjoin that. 0:10:24.320 --> 0:10:27.560 And so this was literally a huge semantics debate, which 0:10:27.640 --> 0:10:30.680 is the people who wanted to have this ability to 0:10:30.720 --> 0:10:34.079 do class wide injunction said, yes, of course, you can't 0:10:34.200 --> 0:10:38.600 enjoin a statute if that's the actual correct reading of 0:10:38.679 --> 0:10:41.920 that statute, meaning of course you can enjoin an illegal 0:10:42.000 --> 0:10:44.560 reading of the statute. What this says is you just 0:10:44.640 --> 0:10:48.040 can't enjoin a legal reading of the statute. So I 0:10:48.080 --> 0:10:52.160 still get to enjoin any statute that's illegal, and what 0:10:52.240 --> 0:10:54.920 the majority opinion said and what the government said, and 0:10:54.960 --> 0:10:57.320 what the people who prevailed said said, no, no, no, 0:10:57.320 --> 0:10:59.960 no no. This means you can't even attempt to get 0:11:00.080 --> 0:11:03.720 an injunction of the statute. It doesn't matter whether the 0:11:03.800 --> 0:11:07.120 statute were debating whether it's legal or not. You're doing 0:11:07.160 --> 0:11:10.120 something extra there. What this is saying is we don't 0:11:10.160 --> 0:11:14.800 even have jurisdiction to try for an attempt to determine 0:11:14.800 --> 0:11:17.480 whether that statute is legal or not legal on a 0:11:17.559 --> 0:11:21.120 class wide basis. What has to happen is an individual 0:11:21.160 --> 0:11:23.959 person has to make that claim. And great, if they 0:11:23.960 --> 0:11:26.200 get all the way up to the Supreme Court and 0:11:26.360 --> 0:11:28.880 they get a decision saying something, well, then that will 0:11:28.920 --> 0:11:32.800 be the way that that applies nationally. But otherwise that 0:11:32.880 --> 0:11:36.079 decision will just apply to that one person, or it 0:11:36.160 --> 0:11:38.240 might apply to that circuit if it goes to the 0:11:38.480 --> 0:11:40.880 Circuit Court of Appeals. But you're not going to be 0:11:40.880 --> 0:11:44.720 able to get a nationwide injunction of certain statutes in 0:11:44.760 --> 0:11:48.880 the I and A by doing a district court nationwide 0:11:48.920 --> 0:11:54.040 class action trying to enjoin the detention and deportation provisions 0:11:54.040 --> 0:11:57.080 of the I and A. So in this case this 0:11:57.200 --> 0:12:02.320 was six to three down ideological line. Justice Son wrote 0:12:02.360 --> 0:12:06.000 the descent and said, I respectfully dissent from the courts 0:12:06.200 --> 0:12:12.640 blinkered analysis that elevates piecemeal dictionary definitions and policy concerns 0:12:12.760 --> 0:12:16.760 over plain meaning and context. I mean, she was basically, 0:12:16.880 --> 0:12:20.040 very powerfully trying to say that, at the end of 0:12:20.040 --> 0:12:24.719 the day, if you have an illegal version of a statute, 0:12:25.200 --> 0:12:27.520 there's no way that you can write a statute that 0:12:27.600 --> 0:12:30.679 prevents an injunction of an illegal version of the statute, 0:12:31.080 --> 0:12:34.360 and that the court was taking the way the statute 0:12:34.480 --> 0:12:39.559 was written to literally and saying that the Congress can 0:12:39.600 --> 0:12:45.200 can literally ban jurisdictionally any lawsuited immigration in any manner 0:12:45.200 --> 0:12:48.000 in which it is written. And what justice sort of 0:12:48.000 --> 0:12:50.040 mayor was trying to say, what the descent is, No, 0:12:50.320 --> 0:12:53.920 that's not true. There's no way you can ban lawsuits 0:12:54.160 --> 0:12:57.679 into trying to say that a statute is illegal. Now, 0:12:58.240 --> 0:13:02.600 what's a very resting flip side to this case, and 0:13:02.640 --> 0:13:06.200 now we're gonna see whether these are consistently held beliefs 0:13:06.240 --> 0:13:09.560 by the court or not. Is that a lot of 0:13:09.600 --> 0:13:12.640 the lawsuits are being filed by the state of Texas 0:13:12.760 --> 0:13:15.560 and by other states are trying to do the exact 0:13:15.600 --> 0:13:19.320 same thing that these lawsuits were trying to do. So 0:13:19.960 --> 0:13:22.480 either they're gonna now come up with some post hoc 0:13:22.640 --> 0:13:25.800 rationale why the State of Texas can keep going and 0:13:25.840 --> 0:13:30.720 filing their own lawsuits that are not individual immigrant lawsuits 0:13:31.200 --> 0:13:35.079 challenging certain statutes, or all of those are going to 0:13:35.160 --> 0:13:39.000 be dismissed too, which will mean that the Biden administration 0:13:39.200 --> 0:13:42.560 for now and then some other administration later we'll be 0:13:42.640 --> 0:13:46.320 able to have carte blanche interpretations of how they want 0:13:46.320 --> 0:13:49.959 to administer these statutes. So that's to me going to 0:13:50.000 --> 0:13:52.559 be the most interesting part to see is are we 0:13:52.600 --> 0:13:55.320 going to start seeing courts bending over backwards to try 0:13:55.320 --> 0:13:58.959 to distinguish this, or is this literally gonna shut down 0:13:59.400 --> 0:14:02.000 all of these lawsuits where people are trying to make 0:14:02.360 --> 0:14:07.520 programmatic changes to immigration in cases where there is not 0:14:07.600 --> 0:14:11.000 an individual immigrant whose rights are at stake, So then 0:14:11.040 --> 0:14:14.600 this might apply. We might see this in the remaining 0:14:14.679 --> 0:14:17.920 Mexico case, which the court has yet to issue the 0:14:17.920 --> 0:14:21.240 decision in. Absolutely, we could see this in a bunch 0:14:21.280 --> 0:14:23.880 of cases, and we're gonna have to wait and see 0:14:23.880 --> 0:14:26.720 how this court wants to apply that, and how lower 0:14:26.760 --> 0:14:29.680 courts want to apply that, because what this is saying 0:14:29.840 --> 0:14:32.720 is basically there's a subset of statutes and they involve 0:14:33.040 --> 0:14:36.560 the detention and removal of non citizens. And what this 0:14:36.640 --> 0:14:39.600 is saying is in those statutes involving the detention and 0:14:39.640 --> 0:14:42.400 removal of non citizens, you've got to do that within 0:14:42.480 --> 0:14:45.280 the individual case of a non citizen. And by the way, 0:14:45.320 --> 0:14:48.200 that doesn't mean you can't get national application. You can. 0:14:48.680 --> 0:14:50.600 But what has to happen is in order to get 0:14:50.680 --> 0:14:53.760 national application is it has to go to the Supreme 0:14:53.760 --> 0:14:57.120 Court or if not, you'll get circuit court application or 0:14:57.200 --> 0:15:00.680 district court application. But what you can't do get a 0:15:00.760 --> 0:15:04.760 nationwide class action that's done in one district because you 0:15:04.880 --> 0:15:07.560 had a class action certified. It has to be done 0:15:07.840 --> 0:15:11.720 in an individual case. And so what that means for 0:15:11.800 --> 0:15:13.960 the State of Texas and all these other places is 0:15:14.000 --> 0:15:17.320 they don't have individual immigrants going through cases at all, 0:15:17.920 --> 0:15:20.000 and so it will be very interesting if they will 0:15:20.040 --> 0:15:24.840 have any jurisdiction to be able to challenge these statutes 0:15:25.080 --> 0:15:29.000 or these processes that also deal with the tension and 0:15:29.080 --> 0:15:32.000 removal that they don't like the way the Biden administration 0:15:32.120 --> 0:15:34.760 is operating the tension and removal or will they be 0:15:34.880 --> 0:15:36.720 kicked out of court as well. That's going to be 0:15:36.800 --> 0:15:40.480 very fascinating to see. Well, this decision have a lot 0:15:40.520 --> 0:15:47.920 of repercussions for immigrants and immigration advocates to challenge immigration 0:15:48.080 --> 0:15:52.240 policies in court. That will slow down the process in 0:15:52.720 --> 0:15:57.239 cases where there's a new policy that's announced on enforcement 0:15:57.880 --> 0:15:59.840 and instead of being able to go to one court 0:16:00.080 --> 0:16:03.560 get a nationwide injunction, you will actually have to find 0:16:04.040 --> 0:16:07.600 immigrants suffering and then go to all of those different 0:16:07.640 --> 0:16:10.800 courts where immigrants are suffering and try to get rulings 0:16:10.800 --> 0:16:13.800 in those circuits so that it doesn't apply in those 0:16:13.800 --> 0:16:17.200 particular circuits until you go to the Supreme Court. So 0:16:17.240 --> 0:16:19.240 that's going to be the big change, And then the 0:16:19.240 --> 0:16:22.160 other big change will be what about it no immigrants 0:16:22.200 --> 0:16:24.800 are suffering at all? So, for instance, what if you're 0:16:24.840 --> 0:16:27.760 the state of Texas or the state of Louisiana and 0:16:27.800 --> 0:16:30.400 you're trying to file a lawsuit? Will you be able 0:16:30.440 --> 0:16:33.920 to actually do it since you're not actually representing anyone 0:16:33.960 --> 0:16:36.560 that's going through the process. And so that's what's going 0:16:36.600 --> 0:16:39.920 to be fascinating to see, And we'll find out soon 0:16:40.000 --> 0:16:43.040 in two to three weeks before the term ends, Leon, 0:16:43.160 --> 0:16:45.960 stay with me. Coming up, we'll discuss a case the 0:16:46.000 --> 0:16:50.320 Supreme Court throughout where some Republican led states were trying 0:16:50.320 --> 0:16:53.920 to take the administration to court over its recision of 0:16:54.000 --> 0:16:57.600 the Trump Public Charge Rule. You're listening to Bloomberg in 0:16:58.520 --> 0:17:03.360 the Biden administration engaged in some legal gamesmanship in rescinding 0:17:03.360 --> 0:17:07.320 a hot button Trump immigration policy, the so called public 0:17:07.440 --> 0:17:11.240 Charge Rule, and then drafting its own rule without following 0:17:11.280 --> 0:17:16.520 administrative law procedure, leaving a tangled legal aftermath. Arizona and 0:17:16.560 --> 0:17:20.200 other Republican led states took the administration to court over 0:17:20.240 --> 0:17:24.600 the rule change, and during oral arguments, Supreme Court justices 0:17:24.680 --> 0:17:30.600 across the ideological spectrum appeared annoyed with the Administration's legal maneuvers. 0:17:30.600 --> 0:17:35.840 Here are Justices Samuel Alito and Elena Kagan. I congratulate 0:17:35.920 --> 0:17:39.119 whoever it is in the Justice Department or the Executive 0:17:39.119 --> 0:17:44.800 branch who devised this strategy and was able to implement 0:17:44.880 --> 0:17:52.480 it with military precision to effect the removal of the 0:17:52.560 --> 0:17:58.520 issue from our docket and two side step notice and 0:17:58.640 --> 0:18:04.080 comment rulemaking. We shouldn't be green lighting that behavior for 0:18:04.200 --> 0:18:08.240 your administration or any other administration, all right, and and 0:18:08.240 --> 0:18:13.960 and and on that assumption, what should be the remedy 0:18:14.000 --> 0:18:17.119 because it just seems as though you're here and saying, 0:18:17.560 --> 0:18:19.840 you know, you can just tell us to go home, 0:18:19.880 --> 0:18:22.320 and and and nothing's going to happen to us, and 0:18:22.359 --> 0:18:24.920 everybody will just do it the next time. This week, 0:18:24.960 --> 0:18:27.840 the Supreme Court appeared to throw its hands up and 0:18:27.880 --> 0:18:31.520 dismiss the case. I've been talking to immigration law expert 0:18:31.600 --> 0:18:35.040 Leon Fresco of Holland and Knight. The decision was one 0:18:35.119 --> 0:18:39.320 sentence long and said the states petition seeking review was 0:18:39.440 --> 0:18:43.840 dismissed as improvidently granted, so basically saying we shouldn't have 0:18:43.880 --> 0:18:46.439 taken this case in the first place. But do we 0:18:46.520 --> 0:18:50.000 know why they dismissed the case. There's basically a pretty 0:18:50.040 --> 0:18:54.879 good indication in the two paid concurrent where Justice is 0:18:55.040 --> 0:18:59.600 Robert Thomas, Alito and Gores that actually explain in their 0:19:00.000 --> 0:19:03.560 ears why they think this case needed to be sent back. 0:19:03.840 --> 0:19:06.520 And that is because at the end of the day, 0:19:06.560 --> 0:19:09.639 there were too many issues that were wrapped up around 0:19:09.640 --> 0:19:12.280 this case. And one could see that during the oral 0:19:12.400 --> 0:19:15.280 argument where the justices were all over the place. So 0:19:15.400 --> 0:19:18.600 just give you some context, this was originally a case 0:19:18.640 --> 0:19:22.160 about whether the Trump public charge rule was legal or not. 0:19:22.640 --> 0:19:24.679 And there were a bunch of courts that that it 0:19:24.760 --> 0:19:27.119 was legal, and there was only one court that it 0:19:27.240 --> 0:19:30.639 wasn't legal, and the Supreme Court that actually let that 0:19:30.840 --> 0:19:34.480 public charge rule go into effects. But then what happened 0:19:34.560 --> 0:19:38.560 was the President Biden reversed the public charge rule and said, 0:19:39.280 --> 0:19:42.879 there's this one chord that says in Illinois that the 0:19:42.880 --> 0:19:46.920 public charge rule is the legal We agree with this 0:19:46.960 --> 0:19:50.080 one court in Illinois, so we're just going to not 0:19:50.280 --> 0:19:52.879 use the Donald Trump public charge rule. We're going to 0:19:52.920 --> 0:19:56.920 acquiesce in the decision of this Illinois court. And so 0:19:57.040 --> 0:20:01.520 now when the states tried to intervene in that case 0:20:01.600 --> 0:20:04.840 so that they could say no, no, no, that ruling 0:20:04.960 --> 0:20:09.080 is incorrect and we should be allowed to move forward, 0:20:09.720 --> 0:20:11.760 the court was sort of all over the place because 0:20:11.800 --> 0:20:13.920 they said, well, wait a second, now there's a new 0:20:14.440 --> 0:20:18.440 Joe Biden public charge rules. And so there's issues of muteness, 0:20:18.560 --> 0:20:21.480 there's issues of standing, and all of these other things. 0:20:21.480 --> 0:20:24.040 So there are so many and none of them were 0:20:24.080 --> 0:20:28.720 the one about whether states can intervene. That the courts 0:20:28.760 --> 0:20:31.720 to forget it. Let's just start from scribe here, since 0:20:31.720 --> 0:20:34.359 there's a new public charge chool and if the state 0:20:34.520 --> 0:20:37.280 wants to sue on this new public charge rule, they 0:20:37.280 --> 0:20:39.879 can go ahead and do that. So then this doesn't 0:20:39.880 --> 0:20:43.760 have anything to do with whether states can intervene in 0:20:43.800 --> 0:20:48.880 a case like this. Well, the original reason for granting 0:20:48.920 --> 0:20:52.800 surgery in this case was whether the states could intervene 0:20:53.640 --> 0:20:57.359 in challenging what President Biden had done, which was to 0:20:57.440 --> 0:21:01.600 acquiesce to that one district court decision in Illinois. But 0:21:01.720 --> 0:21:04.560 what the court said is so much has happened since 0:21:04.640 --> 0:21:07.320 that that now this case is all over the place. 0:21:07.400 --> 0:21:11.119 Now Biden actually changed the rule. So what difference would 0:21:11.119 --> 0:21:14.880 it make if we allow them to intervene, Because what 0:21:14.920 --> 0:21:17.240 are you left to do about if the rule has 0:21:17.280 --> 0:21:20.080 already changed. And so what they all agree to is, look, 0:21:20.160 --> 0:21:22.760 let's just dismissed this case and move on with our lives. 0:21:22.880 --> 0:21:25.600 So does this give the Biden administration or any other 0:21:25.600 --> 0:21:30.160 administration a roadmap for the future. So it's a rare 0:21:30.920 --> 0:21:34.879 situation because it could only happen in the exact situation 0:21:35.000 --> 0:21:40.359 like this, where what happens is somebody sues and you 0:21:40.480 --> 0:21:43.280 just accept the decision you want to accept. So yes, 0:21:43.400 --> 0:21:46.880 you could actually do that always. You can always accept 0:21:47.000 --> 0:21:50.800 a decision from a court that you like and then 0:21:51.000 --> 0:21:54.359 just do that instead of reversing a regulation by notice 0:21:54.400 --> 0:21:59.920 a comment. The only difference is that usually in those 0:22:00.119 --> 0:22:02.960 kinds of lawsuits, the States would have had an opportunity 0:22:03.000 --> 0:22:07.720 to intervene from the beginning, and if they don't intervene, 0:22:07.760 --> 0:22:10.520 then it's going to be their fault at bat the end. Here, 0:22:10.600 --> 0:22:14.800 the problem was because those lawsuits were being defended by 0:22:14.840 --> 0:22:18.960 the Trump administration, the States felt no need to intervene, 0:22:19.520 --> 0:22:22.159 and so it was only when Biden got elected and 0:22:22.240 --> 0:22:25.640 acquiesced that is much much later, that the States came 0:22:25.680 --> 0:22:29.080 in very late in the game and tried to intervene 0:22:29.119 --> 0:22:32.480 and resuscitate this case. And so that's why the courts 0:22:32.480 --> 0:22:35.239 are saying this is so unique and kind of like 0:22:35.280 --> 0:22:38.240 a unicorn set of fact. There's no need for us 0:22:38.240 --> 0:22:41.280 to really get involved in this. Thanks so much, Leon. 0:22:42.119 --> 0:22:47.440 That's Leon Fresco of Hollandon Knight. The January six Committee 0:22:47.480 --> 0:22:50.439 focused at the last hearing, they kind introducing evidence of 0:22:50.520 --> 0:22:53.760 pressure and former President Donald Trump put on his Vice 0:22:53.800 --> 0:22:57.840 president Mike Tense to delay or reject the certification of 0:22:57.920 --> 0:23:02.680 Joe Biden's election victory continuing to make its case against Trump. 0:23:02.920 --> 0:23:06.359 Joining me is Attorney Jordan Strauss, Kroll Managing Director and 0:23:06.520 --> 0:23:11.199 Kroll Institute fellow. Give me your general impression of the 0:23:11.280 --> 0:23:15.040 hearings to this point. I think my general impression is 0:23:15.560 --> 0:23:19.159 this was, in fact, the most complex investigation in history. 0:23:19.359 --> 0:23:23.400 And we've heard that from everyone involved in it. We've 0:23:23.400 --> 0:23:26.720 seen it from the committee's activities, you know, over a 0:23:26.720 --> 0:23:30.200 thousand interviews in eighteen months. I'm personally just bulled over 0:23:30.280 --> 0:23:32.879 by how much they were able to get done and 0:23:32.960 --> 0:23:36.439 what really is a relatively short amount of time. Um 0:23:36.480 --> 0:23:38.280 and by the way, and I think that's sentiment shared 0:23:38.280 --> 0:23:40.320 by the Attorney General and the Deputy Attorney General, who 0:23:40.359 --> 0:23:42.960 you know, between them were on Enron and the Federal 0:23:42.960 --> 0:23:46.240 bombing right to the most other most complex cases in history. 0:23:46.440 --> 0:23:50.440 I think it's really hard to conduct very very complex investigations. 0:23:50.480 --> 0:23:52.160 You know, we do this for businesses all the time, 0:23:52.160 --> 0:23:54.800 and it's it's tough. And what's even harder than running 0:23:54.840 --> 0:23:58.320 the investigation and finding the facts is explaining the facts. 0:23:58.280 --> 0:24:01.440 And I think the Committee has done a very compelling 0:24:01.560 --> 0:24:06.520 jobs so far explaining in pretty simple terms the findings 0:24:06.520 --> 0:24:11.200 from this really complex investigation. City. Remember, Jamie Raskin said 0:24:11.200 --> 0:24:14.920