WEBVTT - Police Reform in the Biden Administration 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.280 --> 0:00:12.200 Jury selection is scheduled to begin next Monday in the 0:00:12.200 --> 0:00:15.880 trial of the former Minneapolis police officer accused of killing 0:00:15.880 --> 0:00:19.720 George Floyd. At the same time, the Biden administration is 0:00:19.720 --> 0:00:22.599 backing a police reform bill in the House that would, 0:00:22.600 --> 0:00:25.840 among other things, banned show coles and no knock warrants. 0:00:26.200 --> 0:00:30.200 Its name the George Floyd Justice and Policing Act. Joining 0:00:30.240 --> 0:00:33.280 me is Jeffrey Fagan, a professor at Columbia Law School, 0:00:33.720 --> 0:00:36.680 tell us a little bit about the Act. Well, the 0:00:36.760 --> 0:00:40.240 Act is about several things UM. One in particular is 0:00:40.320 --> 0:00:47.000 racial profiling and UM. It specifies measures to eliminate racially policing, 0:00:47.080 --> 0:00:51.680 particularly racially racial profiling UM and sets forth the standard 0:00:51.760 --> 0:00:57.640 of UH disparate impact on particular populations minority populations UM 0:00:57.680 --> 0:01:01.040 as the measure of looking in to see whether jurisdiction 0:01:01.160 --> 0:01:05.200 is violating the prohibition on profiling UM. I think, though, 0:01:05.240 --> 0:01:08.000 the most important things to me are the police misconduct 0:01:08.560 --> 0:01:11.520 measures UM. Profiling is a form of misconduct with the 0:01:11.720 --> 0:01:16.920 but the measures to try and UM identify officers who 0:01:16.920 --> 0:01:21.280 are repeat offenders. With respect to who misconduct or excessive 0:01:21.319 --> 0:01:25.800 force or perhaps lethal force, the creation of a registry 0:01:25.840 --> 0:01:30.320 to monitor misconduct across the country, the de certification procedures, 0:01:30.360 --> 0:01:33.600 which I think are extremely important to stop officers from 0:01:33.600 --> 0:01:35.920 pinging around from one department to the other after they 0:01:35.920 --> 0:01:39.200 get in trouble. Um data collections really is built in, 0:01:39.240 --> 0:01:41.240 and it's quite important. We have very little in the 0:01:41.240 --> 0:01:44.600 way of national data on the kinds of issues that 0:01:45.000 --> 0:01:48.800 are the target of the George Floyd Act again, excessive force, 0:01:48.920 --> 0:01:52.640 racial profiling, repeat this conduct, and z on. So I 0:01:52.640 --> 0:01:55.480 think it's a very wide ranging act. I think it 0:01:55.960 --> 0:01:59.000 at least at the federal level, it should have some impacts. 0:01:59.000 --> 0:02:01.560 Now most of the issues that that they try and 0:02:01.600 --> 0:02:04.000 get at are actually state in the city level issues 0:02:04.040 --> 0:02:07.520 are local municipalities. So um, at the very least, it 0:02:07.640 --> 0:02:10.320 sets this this lights of path I think for a 0:02:10.360 --> 0:02:14.040 fairly uniform response across the US with respect to improving 0:02:14.040 --> 0:02:18.880 policing and reducing UH policing equities and the police misconduct 0:02:18.960 --> 0:02:23.000 and ensure your accountability of police to both citizens into 0:02:23.000 --> 0:02:26.560 their local governments. How does the Act handle racial profiling? 0:02:26.600 --> 0:02:30.160 Because isn't sometimes racial profiling something that goes on in 0:02:30.200 --> 0:02:35.320 the officer's head well, you know, it's at the individual level. 0:02:35.480 --> 0:02:37.240 It's you could say that, yeah, it doesn't go on 0:02:37.320 --> 0:02:40.240 in the officer's head. He could perceive where she could 0:02:40.280 --> 0:02:44.920 perceive that a particularly individual is dangerous or up to 0:02:45.120 --> 0:02:49.560 some kind of criminal activity. That's based on perception, and 0:02:49.600 --> 0:02:52.640 those perceptions can be biased, and I think that's one 0:02:52.680 --> 0:02:55.040 of the issues that they try and get at UM. 0:02:55.160 --> 0:02:58.240 I think though, when you think about UM, the way 0:02:58.320 --> 0:03:02.760 the language is set forth in UM Section three one 0:03:02.800 --> 0:03:05.880 two of the Act, they talk about really a pattern, 0:03:06.680 --> 0:03:10.400 and they talk about activities of law enforcement agents and 0:03:10.400 --> 0:03:14.520 a jurisdiction that have had a disparate impact on individuals 0:03:14.560 --> 0:03:17.080 with a particular characteristic, and the characteristic is a racial 0:03:17.160 --> 0:03:22.400 razor gender, but particularly recent ethnicity. So implicitly they're arguing 0:03:22.440 --> 0:03:24.760 for a pattern and practice model, which means some kind 0:03:24.760 --> 0:03:28.720 of statistical analysis overall of the actions of police officers 0:03:28.720 --> 0:03:32.200 with respect to the citizens. Now I've done that. I 0:03:32.360 --> 0:03:35.600 was participately in the David Floyd trial in New York 0:03:35.760 --> 0:03:38.680 on stopping frisk um, and I've been involved in other 0:03:38.920 --> 0:03:44.680 UM racial selective we call selective enforcement cases. And it's 0:03:44.720 --> 0:03:47.760 hard to prove. There's two issues here. One is disparate impact, 0:03:47.800 --> 0:03:52.360 which is a different standard than for example, selective enforcement 0:03:52.480 --> 0:03:56.200 or disparate treatment. And I think there'll be a little 0:03:56.200 --> 0:04:01.440 bit of m conscientiousness in when there are efforts to 0:04:01.560 --> 0:04:05.160 prove disparate impact. It's proven to be in the empirical 0:04:05.200 --> 0:04:07.560 literature by police scholars to be kind of hard to 0:04:07.600 --> 0:04:09.680 pin down. It's one of those things where I think 0:04:09.680 --> 0:04:12.760 everybody knows it's there, but to to say it and 0:04:12.800 --> 0:04:16.560 to find that race UH, net of all other factors 0:04:16.640 --> 0:04:20.120 is driving the patterns that are observed, that's tricky. We 0:04:20.240 --> 0:04:23.159 all may be may sense it. It may be the 0:04:23.200 --> 0:04:25.520 only logical explanation. I think that was one of the 0:04:25.520 --> 0:04:28.600 conclusions we reached in New York. Apart from the statistical conclusion. 0:04:28.640 --> 0:04:30.160 We said, well, if it's not race, what else could 0:04:30.200 --> 0:04:34.320 it be? And I think that the access to the 0:04:34.400 --> 0:04:39.440 standard that UH will lead to some contentious um fights 0:04:39.560 --> 0:04:42.880 once we get to litigation and allegations of violation to 0:04:42.920 --> 0:04:46.000 the Act. Having said all that, I think that the 0:04:46.040 --> 0:04:50.640 acts of a baseline that would lead to I think 0:04:51.000 --> 0:04:54.480 rigorous and and and sweeping empirical research to show and 0:04:54.520 --> 0:04:58.120 identify the patterns and local jurisdictions as well as across 0:04:58.160 --> 0:05:04.279 the federal agencies mentioned sort of tracking police officers to 0:05:04.440 --> 0:05:08.800 see if they repeat conduct. I don't think they they 0:05:09.080 --> 0:05:12.960 I don't think they Act specifies tracking particular officers. I 0:05:12.960 --> 0:05:17.719 think the Act specifies recording incidents of misconduct by officers, 0:05:17.800 --> 0:05:23.520 and then jurisdictions can identify within the data which officers 0:05:23.600 --> 0:05:27.880 are engaging in misconduct repeatedly and which officers may only 0:05:27.920 --> 0:05:33.359 be doing it incidentally, and then ideally the data collection system, 0:05:33.400 --> 0:05:35.320 the archive, would be able to look at the responses 0:05:35.360 --> 0:05:37.400 to those by particular departments to see if they're being 0:05:37.400 --> 0:05:40.960 held accountable. I don't think it's a system to register 0:05:41.160 --> 0:05:45.360 all police and follow their their uh their behavior over 0:05:45.400 --> 0:05:47.799 time and record their misconduct. I think it's an incident 0:05:47.800 --> 0:05:51.240 based system to look at particular incidents to see if 0:05:51.240 --> 0:05:54.839 there are patterns in there. So my question is don't 0:05:54.880 --> 0:05:59.440 police departments across the country already keep track of those officers. 0:06:00.560 --> 0:06:05.400 It's wildly uneven um and for for several reasons. One 0:06:05.480 --> 0:06:07.400 is just simply the preference of the police departments to 0:06:07.480 --> 0:06:11.400 invest their resources in keeping track of officer misconduct to 0:06:12.000 --> 0:06:15.560 a lot of misconduct depends on reporting by civilians to 0:06:16.560 --> 0:06:19.880 either directly that the police are to a civilian oversight board, 0:06:20.360 --> 0:06:24.279 and um uh, some civilians may not want to report. 0:06:24.360 --> 0:06:27.000 I think there's a legitimate fear of retaliation by police 0:06:27.000 --> 0:06:29.839 officers if somebody reports an officer for having engaged in 0:06:30.400 --> 0:06:35.680 excessive forests or or abusive language, or false arrested and 0:06:36.000 --> 0:06:40.640 things like that. So, um, there's a good interesting example 0:06:40.640 --> 0:06:43.440 in Chicago. The police department in Chicago does receive complaints. 0:06:43.480 --> 0:06:47.000 They record a fairly large volume of complaints. But there's 0:06:47.040 --> 0:06:50.360 also a private organization called the Invisible Institute, and they 0:06:50.360 --> 0:06:55.440 received complaints as well. And the private organization Invisible Institute, 0:06:55.440 --> 0:06:58.320 they received nearly twice as many complaints by civilians about 0:06:58.360 --> 0:07:01.360 misconduct by the Chicago Police as do the Chicago Police. 0:07:02.320 --> 0:07:04.760 So I think that tells us something about the sensitivity 0:07:04.800 --> 0:07:08.680 of these archives to willingness of citizens to report to 0:07:08.720 --> 0:07:12.080 an agency that they may have some distrust towards. When 0:07:12.120 --> 0:07:16.720 you look at news articles on this act, the first 0:07:16.720 --> 0:07:20.000 thing you see is that it bans all chokeholds. Are 0:07:20.040 --> 0:07:24.280 there still police stations around the country where choke holds 0:07:24.440 --> 0:07:28.200 are allowed. There's a few they allow chokeholds under particular 0:07:28.840 --> 0:07:31.920 circumstances what they call exiting circumstances, but for the most 0:07:31.960 --> 0:07:36.080 part they're banned. Now the bands um are of question 0:07:36.120 --> 0:07:40.480 will affectiveness and UM. If an officer violated the ban 0:07:40.600 --> 0:07:43.920 in a particular department, whether that officer is sanctioned for 0:07:44.120 --> 0:07:46.920 violating the band depends very much on the discipline systems 0:07:46.920 --> 0:07:50.200 in place in that department, and often the departments will 0:07:50.240 --> 0:07:53.000 look at the particular circumstances in which the officer used 0:07:53.000 --> 0:07:56.239 the chokehold and decide, well, perhaps that officer really didn't 0:07:56.240 --> 0:08:00.000 have a choice. Now, that's hard to prove one more 0:08:00.080 --> 0:08:03.240 or the other, um, but in general I think officers 0:08:03.240 --> 0:08:05.080 do have a choice. There are many ways to simping 0:08:05.160 --> 0:08:08.720 with aspect other than risking their life by cutting off 0:08:08.760 --> 0:08:13.160 their oxygen supply. So um, it's it's a The ban 0:08:13.320 --> 0:08:17.640 is is well stated. I think it has strong expressive 0:08:17.720 --> 0:08:22.400 value to condemn a particular police tactic. Um. Its enforceability 0:08:22.440 --> 0:08:25.400 will vary from place to place, depending on the the 0:08:25.520 --> 0:08:29.560 urgency that police leadership feels towards this and their willingness 0:08:29.600 --> 0:08:34.240 to make their officers angry by curtailing their activities. So 0:08:34.280 --> 0:08:37.560 there's again, many of these provisions are complicated by the 0:08:37.600 --> 0:08:40.679 realities of policing, but they're all pointing in the right 0:08:40.720 --> 0:08:46.200 direction to increase accountability. Does the Act just stop all 0:08:46.480 --> 0:08:50.199 no knock warrants? I believe the intent is to ban 0:08:50.679 --> 0:08:53.880 all no knock warrants. Are there certain instances where no 0:08:54.000 --> 0:08:57.280 knock warrant is needed? You know, it's an interesting question, 0:08:57.360 --> 0:09:00.520 and I think, well, let's put it this way. It 0:09:00.600 --> 0:09:03.280 does band no knock warrants. I would guess that that 0:09:03.520 --> 0:09:09.320 somewhere uh north of se perhaps closer to eight of 0:09:09.600 --> 0:09:13.280 warrants can be served without a no knock provision. Um, 0:09:13.320 --> 0:09:15.960 it's possible that it could be as high as as 0:09:16.120 --> 0:09:20.920 as ninety five or ninety eight or UM. We don't 0:09:20.920 --> 0:09:26.360 have enough research on this question to answer um your 0:09:26.440 --> 0:09:28.640 question and the criticisms of police that you do need 0:09:28.679 --> 0:09:31.680 to keep that possibility. And again it's one of the 0:09:31.720 --> 0:09:35.720 things that that has strong expressive value. But UM, I 0:09:35.760 --> 0:09:37.600 think we need This is an area where we really 0:09:37.600 --> 0:09:41.160 need some research to say to say just how far 0:09:41.160 --> 0:09:46.240 should the band go so qualified immunity just explain what 0:09:46.400 --> 0:09:52.600 qualified immunity is and what this bill would provide. According 0:09:52.640 --> 0:09:54.600 to the Act, very little of it will survive as 0:09:54.640 --> 0:10:00.960 any qualified immunity essentially is UM relieves officers of liability 0:10:01.360 --> 0:10:07.120 for having engaged in um misconduct as simple as that, 0:10:07.200 --> 0:10:11.200 if they engage in excessive force, if they engage in 0:10:11.280 --> 0:10:17.040 false arrest, if they engage in some kind of racial 0:10:17.120 --> 0:10:20.560 profiling for example, that leads to some harm when an 0:10:20.600 --> 0:10:23.840 officer is found, When an officer is found who have 0:10:23.960 --> 0:10:27.840 violated the law, whether civil or criminal, they are quality 0:10:28.000 --> 0:10:32.080 the qualified and meanoring and provisions reliefs of any responsibility 0:10:32.120 --> 0:10:34.120 for the acts that they took, that they engaged in, 0:10:34.800 --> 0:10:38.800 and that includes relief of monetary damages and in some 0:10:38.880 --> 0:10:44.360 instances relief from criminal prosecution. So this would eliminate qualified immunity, 0:10:44.880 --> 0:10:46.720 that's right, It would hold officers feet to the fire. 0:10:47.160 --> 0:10:49.959 This is a federal federal bill, so I mean, how 0:10:50.080 --> 0:10:54.800 much of this will be enforceable at the state level. Well, 0:10:54.920 --> 0:10:57.240 this is an interesting question because some states have their 0:10:57.280 --> 0:11:01.960 own statutes and qualified immunity and there didn't UM. Not surprisingly, 0:11:02.000 --> 0:11:04.280 a number of court cases on qualified immunity in the 0:11:04.360 --> 0:11:07.520 last couple of years, and there's a very very strong, 0:11:08.240 --> 0:11:13.000 well thought out appellate court opinions on this with respect 0:11:13.000 --> 0:11:16.640 to the actions of individual officers. But but there most 0:11:16.640 --> 0:11:20.200 of those cases involve allegations of violations of federal law. 0:11:21.080 --> 0:11:24.000 If there's a case which involves violation of state law, 0:11:24.080 --> 0:11:26.880 that's going to lead to a different um possibly different 0:11:27.080 --> 0:11:30.080 uh standard in the courts to determine where they're qualified 0:11:30.120 --> 0:11:32.679 immunity applies. It depends on how the state statutes wriated. 0:11:33.559 --> 0:11:36.360 But there is federal case law that that's that sustains 0:11:36.440 --> 0:11:39.280 qualified immunity depending on the depending on the statute in 0:11:39.280 --> 0:11:41.480 the circumstances. To give an example, you know, we don't 0:11:41.480 --> 0:11:43.320 we don't really know the parameter that the courts haven't 0:11:43.320 --> 0:11:45.440 really settled on the parameters of it. There was just 0:11:45.520 --> 0:11:48.079 a case in um I believe was in Texas of 0:11:48.240 --> 0:11:53.120 a negligent correctional officer who allowed a person to suffer 0:11:54.559 --> 0:11:57.760 illness um and um some beatings at the hands of 0:11:58.120 --> 0:12:03.360 garden inmates um in well confined, and the courts, the 0:12:03.400 --> 0:12:08.880 lower courts there's um found um the officer gave the 0:12:08.880 --> 0:12:12.079 officer to qualified immunity for any damages. The appellate court 0:12:12.800 --> 0:12:19.600 didn't and um uh they were going to They essentially 0:12:19.600 --> 0:12:22.439 they said there are limits to qualified immunity. And it 0:12:22.559 --> 0:12:25.000 was an interesting opinion in the courts, but it did 0:12:25.000 --> 0:12:27.160 say that you know, there are boundaries on it. The 0:12:27.160 --> 0:12:29.760 boundaries are a little bit porous, and the boundaries are 0:12:29.800 --> 0:12:33.760 really hard to see as a clear um categorical line, 0:12:35.000 --> 0:12:36.880 but there are boundaries on it. But for the most part, 0:12:36.880 --> 0:12:38.319 I think this is going to make it much more 0:12:38.320 --> 0:12:41.040 difficult for officers to claim qualified immunity for the courts 0:12:41.040 --> 0:12:43.480 they granted to them and as far as the rest 0:12:43.480 --> 0:12:45.800 of the act. So if it passes, it would be 0:12:45.840 --> 0:12:50.400 against federal law to let's say, use a choke cold, 0:12:50.640 --> 0:12:52.719 so the officer would have to be charged in the 0:12:52.800 --> 0:12:56.160 federal court. That would put the federal government in in 0:12:56.240 --> 0:12:59.680 the position of doing a lot of policing of the police. 0:13:01.120 --> 0:13:02.800 Well I do would now, I mean the Department of 0:13:02.880 --> 0:13:07.400 Justice has mechanisms by which they can order police departments, um, 0:13:07.440 --> 0:13:12.000 following a civil rights investigation to undertake particular activities to 0:13:12.080 --> 0:13:16.080 remedy acts of civil rights violations. Music call consent degrees. 0:13:16.120 --> 0:13:18.839 In there, they were dormant for the most part unto 0:13:18.920 --> 0:13:24.840 the Trunk administration. They were fairly common um under the 0:13:24.880 --> 0:13:29.640 Obama administration. Um less so under the Bush administration, but 0:13:29.720 --> 0:13:32.560 but probably more so than any other administration during the 0:13:32.559 --> 0:13:37.280 Obama years. And I'm quite sure that given the nominees 0:13:37.320 --> 0:13:41.520 for UM Civil Rights Division, Department of Justice, this this 0:13:41.920 --> 0:13:43.880 activity will be revived. So I think there is a 0:13:43.920 --> 0:13:47.080 mechanism that is going to be reinvigorated, strengthened in the 0:13:47.120 --> 0:13:49.800 Justice Department to pursue these kinds of investigations. So, yes, 0:13:49.840 --> 0:13:53.240 there is some elements, there's some aspects of of federal 0:13:53.240 --> 0:13:56.439 oversecon police departments, and they will be I think expanded 0:13:56.440 --> 0:13:58.840 somewhat under these They would be expanded with or without 0:13:58.880 --> 0:14:01.160 the George Floyd Act, make me clear about that. But 0:14:01.160 --> 0:14:03.760 the George Flight Act gives kind of a foundation and 0:14:03.840 --> 0:14:09.599 a sort of a normative or political political rationale to 0:14:10.960 --> 0:14:15.240 more aggressively overseeing the police activity. A version of the 0:14:15.280 --> 0:14:20.320 bill passed the House last year along partisan lines, but 0:14:20.640 --> 0:14:23.280 it went nowhere in the Senate, which was then controlled 0:14:23.320 --> 0:14:26.360 by Republicans. What do you think it's chances are in 0:14:26.400 --> 0:14:29.680 the Senate this time around. Well, I think we can 0:14:29.720 --> 0:14:32.520 probably count noses in this case, and I my guess 0:14:32.560 --> 0:14:34.760 is that for the most part, there may be some 0:14:34.840 --> 0:14:38.080 tinkering with the act in the Senate version of the Act, 0:14:39.280 --> 0:14:42.600 and that tinkering would be around the margins of police accountability, 0:14:43.680 --> 0:14:48.560 and it might lead to some concessions by some Democratic senators. 0:14:48.600 --> 0:14:52.560 I can imagine Senator Mansion, for example, coming from a 0:14:52.600 --> 0:15:00.080 more conservative state, perhaps Senator Cinema from from Arizona me 0:15:00.160 --> 0:15:03.200 from a more conservative state, having a few qualms about 0:15:03.200 --> 0:15:05.480 certain provisions of the bill. So there might be some 0:15:05.560 --> 0:15:08.880 figuring around the markets. But I think the main thrust 0:15:09.000 --> 0:15:12.800 of the legislation will pass. Now that's a prediction, and 0:15:12.840 --> 0:15:16.520 I'm very bad. I'm a very bad gambler. We appreciate 0:15:16.560 --> 0:15:19.400 the prediction anyway, Thanks so much for being on the show. 0:15:19.800 --> 0:15:24.560 That's Professor Jeffrey Fagan of Columbia Law School. A federal 0:15:24.640 --> 0:15:28.760 judge in Texas extended in order blocking President Joe Biden's 0:15:28.800 --> 0:15:33.600 plan to hall deportations of undocumented immigrants for one hundred days. 0:15:33.920 --> 0:15:38.360 Federal Judge Drew Tipton, a Trump appointee, granted Texas's motion 0:15:38.440 --> 0:15:42.000 for an injunction blocking the plan freeze on removals until 0:15:42.040 --> 0:15:45.240 the case is resolved, which could take months or even years. 0:15:45.480 --> 0:15:48.160 Joining me is Leon Fresco, a partner at Hollandon Knight. 0:15:48.480 --> 0:15:52.200 Leon the judge road a one five page order. What 0:15:52.280 --> 0:15:55.360 was his reasoning here? Well, in the end, what this 0:15:55.440 --> 0:16:01.320 judge was saying, is that, just like other programmatic changes 0:16:01.400 --> 0:16:04.040 that have occurred that have been enjoyed by the courts, 0:16:04.360 --> 0:16:08.120 that here this memo that was then by the Biden 0:16:08.200 --> 0:16:12.680 administration that was specifically instructing I not to engage in 0:16:12.800 --> 0:16:16.240 certain removal operations in order to remove people from the 0:16:16.280 --> 0:16:19.600 United States was a programmatic change that needed to occur 0:16:19.760 --> 0:16:23.840 to the notice and comment process, and so violated the 0:16:23.920 --> 0:16:27.040 I and A. And also that it violated different agreements 0:16:27.120 --> 0:16:30.400 that have been in place with different states about how 0:16:30.520 --> 0:16:34.800 the enforcement of immigration law could occur, and also violated 0:16:34.960 --> 0:16:39.440 the requirements that the president actually enforced the laws. And 0:16:39.600 --> 0:16:45.480 so with all of those results, the court enjoined this memorandum, 0:16:45.520 --> 0:16:48.640 which actually has some cookie results, but in the end 0:16:49.160 --> 0:16:53.960 just says that this memorandum itself can actually be enforced. 0:16:54.160 --> 0:16:58.080 So not going through the comment procedures is something that 0:16:58.240 --> 0:17:01.640 was often used against the Trump administration. So is this 0:17:01.720 --> 0:17:04.720 judge using the same kind of reasoning here? The doctor 0:17:04.760 --> 0:17:07.960 in itself upon which the decision was based upon is 0:17:08.000 --> 0:17:10.640 the typical doctor that you would use to overturn one 0:17:10.640 --> 0:17:14.320 of these prigot edge of the memorandum. The key here, however, 0:17:14.920 --> 0:17:18.000 is that in the end, this is a memorandum about 0:17:18.080 --> 0:17:22.200 how the president is going to enforce immigration law. And 0:17:22.280 --> 0:17:26.800 so even if this particular memo is stricken, it doesn't 0:17:26.880 --> 0:17:30.200 really change the fact that on a case by case basis, 0:17:30.800 --> 0:17:35.280 ICE can't be forced to deport specific people. There's no 0:17:35.400 --> 0:17:37.399 lawsuits that anybody is going to be able to file. 0:17:37.520 --> 0:17:40.800 It's going to say you must import every single person 0:17:40.880 --> 0:17:45.320 you encounter. That's the president's discretion. That's literally in the 0:17:45.400 --> 0:17:48.919 statutes that nobody can do to take away that discretion. 0:17:49.200 --> 0:17:52.480 And so all this does is just eliminate the memo 0:17:53.240 --> 0:17:57.800 as a basis for governing how this ICE discretionary process works, 0:17:58.000 --> 0:18:01.159 which is why the Biden administrations of siquickly issued another 0:18:01.200 --> 0:18:04.960 memo had said if you're going to engage in operations 0:18:05.000 --> 0:18:07.920 against people other than serious criminals, you have to get 0:18:08.040 --> 0:18:13.600 many layers of approval, which basically procedurally accomplishes the same 0:18:13.640 --> 0:18:18.520 objective as saying don't remove people. The Texas A g 0:18:19.000 --> 0:18:24.720 was tweeting victory, etcetera. So the victory maybe the legal victory, 0:18:24.800 --> 0:18:29.280 but on the ground it doesn't make that much difference. Correct, 0:18:29.400 --> 0:18:32.800 It's a victory in paper only, but not in substance. 0:18:32.920 --> 0:18:37.639 Because the paper itself, the memo itself is gone, so 0:18:37.880 --> 0:18:40.159 that no one can site to that memo as a 0:18:40.240 --> 0:18:44.720 basis for why a removal shouldn't occur. But if an 0:18:44.760 --> 0:18:47.680 ICE agent has to go through many layers of review 0:18:47.760 --> 0:18:50.920 in order to engage in an ICE operation, what will 0:18:50.960 --> 0:18:55.680 inevitably occur is that those context that the memo does 0:18:55.760 --> 0:18:59.840 permit or doesn't permit for removal will be inculcated in 0:18:59.840 --> 0:19:02.880 the agency such that whatever somebody tries to go through 0:19:02.920 --> 0:19:05.639 those layers of review, they will be told this is 0:19:05.680 --> 0:19:09.960 not an acceptable operation for a removal and that goal 0:19:10.000 --> 0:19:13.040 will have been accomplished in the same manner. So that 0:19:13.119 --> 0:19:16.520 may be the reason why the Biden administration hasn't said 0:19:16.560 --> 0:19:19.840 that they're going to appeal this decision to the Fifth Circuit. 0:19:20.960 --> 0:19:24.240 Right in the end, it's really much to do about nothing, 0:19:24.920 --> 0:19:31.800 because if you are organizing a prosecutorial discretion regime, that 0:19:31.960 --> 0:19:34.600 regime can be done without needing a memo like this. 0:19:34.880 --> 0:19:37.960 The point of what memo was because on day one 0:19:38.560 --> 0:19:41.920 of the Biden administration, you needed a very broad memo 0:19:42.040 --> 0:19:45.680 like that which essentially said don't support anyone because there 0:19:45.720 --> 0:19:50.440 was no one there at these agencies. Yet he inculcate 0:19:50.600 --> 0:19:54.639 the officers about what the new enforcement priorities were. Now, 0:19:54.680 --> 0:19:58.359 people are slowly being installed. Alle Majorchis has been confirmed 0:19:58.400 --> 0:20:02.000 as the DHS secretary. There are political appointments that are 0:20:02.040 --> 0:20:05.400 moving into these agencies that do not require cetic conformation, 0:20:06.000 --> 0:20:10.359 and those individuals can begin to say to the people, 0:20:10.400 --> 0:20:13.760 and I here are our priorities, and so you should 0:20:13.800 --> 0:20:16.560 not approve a removal as this or this or this, 0:20:17.200 --> 0:20:20.560 and that doesn't need a memo that says don't enforce 0:20:20.640 --> 0:20:22.840 the immigration law, which was sort of the day one 0:20:22.880 --> 0:20:26.200 memo just to stop any removals that were imminent at 0:20:26.200 --> 0:20:29.679 that time. And the judges opinion didn't touch on the 0:20:29.720 --> 0:20:34.840 agreement that the Trump administration made with Texas and some 0:20:35.000 --> 0:20:39.239 other states. Well, in the end, the agreements were not 0:20:39.400 --> 0:20:44.600 necessary to invalidate this decision because what was ultimately necessary 0:20:44.760 --> 0:20:47.560 was just this issue that this was a programmatic change 0:20:47.600 --> 0:20:50.720 that needed to go through the formal rulemaking process, that 0:20:50.800 --> 0:20:54.600 it was going to be implemented. And they don't in 0:20:54.640 --> 0:20:58.360 the end half standings to say that the federal government 0:20:58.400 --> 0:21:01.720 should deport at person that just is not a thing 0:21:01.920 --> 0:21:06.000 in the US law. And so from that perspective, that 0:21:06.160 --> 0:21:08.359 wasn't something that was going to be able to survive 0:21:08.760 --> 0:21:11.800 the Fifth Circuit or Supreme Court review. And so that's 0:21:11.800 --> 0:21:14.640 why I think you don't see the imphasis there. Lean 0:21:14.760 --> 0:21:18.640 you said that the judge's action will have some cookie results. 0:21:19.160 --> 0:21:23.320 Tell us about them. There results in some very unique consequences, 0:21:23.320 --> 0:21:26.280 which is just that this memo itself can't be imforced. 0:21:26.960 --> 0:21:32.159 So you can't say to people, don't deport anyone they 0:21:32.240 --> 0:21:35.600 on the basis of this memo. But there's nothing about 0:21:35.720 --> 0:21:38.679 this case being victorious for the State of Texas that 0:21:38.840 --> 0:21:41.679 is likely to lead to even a single additional person 0:21:41.760 --> 0:21:46.120 being removed or maintained, because the processes that the agency 0:21:46.119 --> 0:21:49.639 has put in place now have made it clear that 0:21:50.280 --> 0:21:53.320 here are the kinds of approval you need in order 0:21:53.359 --> 0:21:57.200 to begin a removal action or to finalize the removal action, 0:21:57.720 --> 0:22:02.280 and when those approve sources are procured, you're not going 0:22:02.320 --> 0:22:05.879 to get that approval unless it's a serious criminal or 0:22:06.040 --> 0:22:09.600 national security case. Let's turn to what's happening now. Because 0:22:09.960 --> 0:22:13.280 there are ports that there have been thousands of unaccompanied 0:22:13.480 --> 0:22:19.000 miners coming through the border. Border patrol agents are apprehending 0:22:19.040 --> 0:22:21.560 an average of more than two hundred children crossing the 0:22:21.600 --> 0:22:26.280 border without a parent every day, but nearly all beds 0:22:26.280 --> 0:22:29.040 for immigrant children maintained by the Department of Health and 0:22:29.119 --> 0:22:32.479 Human Services are full. So what's happening at the border. 0:22:33.240 --> 0:22:35.760 So there are multiple issues that are happening at the 0:22:35.760 --> 0:22:39.080 southern border. One is with regard to asylum speakers, and 0:22:39.160 --> 0:22:43.840 one is with regard to unaccompanied children. So for unaccompanied children, 0:22:43.960 --> 0:22:46.800 the Trump administration, at the final days of the Trump 0:22:46.840 --> 0:22:51.400 administration have actually won a decision that said that what's 0:22:51.440 --> 0:22:54.359 called Title forty two of the Code, which is the 0:22:54.400 --> 0:22:58.280 code having to do with the CDC and disease exclusion, 0:22:58.840 --> 0:23:03.960 permitted the Trump administration to exclude young people on a 0:23:04.040 --> 0:23:08.240 companied miners from the United States because of COVID and 0:23:08.320 --> 0:23:12.040 the COVID crisis. The Biden administration decided that it would 0:23:12.119 --> 0:23:15.639 not use this COVID authority to exclude on a company 0:23:15.720 --> 0:23:20.000 miners and would instead process on accompany miners the way 0:23:20.080 --> 0:23:24.000 they had traditionally been processed under the Flora Settlement Agreement, 0:23:24.000 --> 0:23:26.720 which is that an unaccompanied minor gets to come into 0:23:26.760 --> 0:23:30.159 the United States and make a claim for either asylum 0:23:30.240 --> 0:23:34.680 relief or trafficking relief or what is called special immigrants 0:23:34.720 --> 0:23:39.240 juvenile static. The complication is that when on a company 0:23:39.280 --> 0:23:42.040 miner comes into the United States, they need to be 0:23:42.119 --> 0:23:44.719 housed in a shelter that is run by the Office 0:23:44.760 --> 0:23:48.600 of Refugee Resettlement until the Office of Refugee Resettlement can 0:23:48.640 --> 0:23:51.840 determine that the adult that something to pick up that 0:23:52.000 --> 0:23:56.879 minor isn't some human trafficker or smuggler or terrible individual, 0:23:56.960 --> 0:24:00.159 but it is instead a committed scare stags. And so 0:24:00.359 --> 0:24:04.840 the facilities that are usually over expended for this purpose 0:24:05.200 --> 0:24:08.280 here not only are overexpended, but haves to be out 0:24:08.320 --> 0:24:12.680 about capacity due to the COVID prices. And so this 0:24:12.720 --> 0:24:15.280 is why you're seeing all of these new facilities opening up, 0:24:15.320 --> 0:24:19.080 including this one in Carrizo Springs, Texas, is because they're 0:24:19.119 --> 0:24:23.600 gonna need to be increased capacity if the unaccompanied miners 0:24:23.640 --> 0:24:25.720 are actually going to be allowed into the United States 0:24:25.760 --> 0:24:31.160 as opposed to be excluded using the CDC COVID Exclusion Authority. 0:24:31.640 --> 0:24:35.320 So are more people coming in since since Biden has 0:24:35.359 --> 0:24:40.160 been president, So the numbers are on an uptick. They're 0:24:40.200 --> 0:24:43.040 not yet at the crisis levels that we've seen in 0:24:43.080 --> 0:24:46.359 the past, but there is some concerns that the Department 0:24:46.359 --> 0:24:49.400 of home brand security of citing that those numbers by 0:24:49.440 --> 0:24:53.240 May or June could get up to those levels. And 0:24:53.280 --> 0:24:55.480 the question is, if they get up to those levels, 0:24:55.960 --> 0:24:59.119 will the Biden administration change course and use this title 0:24:59.240 --> 0:25:02.359 forty to afford ready again to exclude people from the 0:25:02.440 --> 0:25:05.200 United States. That's going to be very interesting to see. 0:25:05.560 --> 0:25:09.080 And the other change that was made was ending what 0:25:09.240 --> 0:25:11.920 is known as the Remain in Mexico or the Migrant 0:25:11.960 --> 0:25:16.000 Protection Protocol program, which was a program that required anybody 0:25:16.080 --> 0:25:20.560