Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg
Speaker 1: Radio Chaos at the Capital on January six. Slowly but surely,
Speaker 1: the rioters are being brought to justice. And now the
Speaker 1: first prison sentence. The man who carried a Trump flag
Speaker 1: onto the Senate floor was sentenced to eight months behind bars,
Speaker 1: far below the sentencing guidelines. Paul Hodgkins had pleaded guilty
Speaker 1: to the felony of obstructing an official proceeding joining me
Speaker 1: as former federal prosecutor Robert Mintz a partner McCarter in English.
Speaker 1: The sentencing guidelines were for fifteen to twenty one months,
Speaker 1: but the judge sentenced to him below the guidelines and
Speaker 1: to less than half the time the prosecutors had asked for.
Speaker 1: Does it seem like a lenien sentence? Well, what the
Speaker 1: judge did in this case was to more or less
Speaker 1: split the difference between what the defense was asking for
Speaker 1: and what prosecutors were asking for. Prosecutors were seeking eighteen months,
Speaker 1: which was the middle of the guideline range, and the
Speaker 1: defense lawyer was asking for a probation or house arrest.
Speaker 1: So this is an eight month sentence. There will be
Speaker 1: eight months that are served in this case because you
Speaker 1: don't get out early under the federal guidelines, and so
Speaker 1: it's a hard sentence in the sense that there will
Speaker 1: be some real jail time that's imposed here. But on
Speaker 1: the other hand, if you look at the overall conduct
Speaker 1: that was involved, some people might look at this as
Speaker 1: a lenion sentence. That's the real puzzle with these sentences.
Speaker 1: Does the judge look at simply the individual acts or
Speaker 1: does the judge look at the broader picture of the
Speaker 1: writing on the violence carried out by the larger group.
Speaker 1: Isn't it considered lenient if it's below the sentence and guidelines. Well,
Speaker 1: the sentencing guidelines are just guidelines at this point, and
Speaker 1: they are followed by judges in the majority of cases.
Speaker 1: But in the District of Columbia, for example, where this
Speaker 1: defendant was sentenced, judges sentenced below the guideline range and
Speaker 1: thirty percent of the cases. So it's not common to
Speaker 1: do it, but it's certainly not entirely unusual. Hodgkins was
Speaker 1: wearing protective eye goggles, he had rope with him and
Speaker 1: white latex gloves. Yet he said he got swept up
Speaker 1: in the march along Pennsylvania avenue. But when you come
Speaker 1: with that kind of gear, you're not just planning on
Speaker 1: going to a rally, are you. Well, that's the issue
Speaker 1: facing judges in these cases. The sentencing guidelines were set
Speaker 1: out to inject some degree of uniformy and fairness so
Speaker 1: that similarly situated defendants would be sentenced two similar terms
Speaker 1: in jail. But in this case, these are unprecedented events
Speaker 1: and the judges have to look at the acts of
Speaker 1: the individuals and way at against the larger mob mentality.
Speaker 1: And what we're seeing a lot on the defense side
Speaker 1: from a legal strategy, is to blame the moment, not
Speaker 1: the man. So they're arguing that their clients were swept
Speaker 1: up in almost a mob mentality, that this was an
Speaker 1: aberration and something that should be considered in the context
Speaker 1: of the full life of the defendant. In this case,
Speaker 1: there were some mitigating factors that the judge Wade. He
Speaker 1: looked at the seriousness of the charge and the damages
Speaker 1: that were done that day, but he also looked at
Speaker 1: the fact that this particular individual had no criminal background.
Speaker 1: This individual did not engage in violence or destroy property,
Speaker 1: and he was among the first to offer a plea
Speaker 1: of guilty so sometimes what judges are doing are trying
Speaker 1: to set the bar and send a message to the
Speaker 1: many other defendants who are out there who have not
Speaker 1: yet decided to plead guilty, that if they do plead guilty,
Speaker 1: they will get a particular kind of sentence. And so
Speaker 1: to some extent, what the judge is doing is trying
Speaker 1: to encourage other defendants out there to consider edering guilty. Please,
Speaker 1: what about the prosecutors wanting to send a message that
Speaker 1: this is unacceptable behavior. She also cited the need to
Speaker 1: deter domestic terrorism. Yes, and that was sort of an
Speaker 1: interesting paction between the prosecutors and the defense. Prosecutors were
Speaker 1: describing the actions of January six as an act of
Speaker 1: domestic terrorism, and some of the defense lawyers in this
Speaker 1: case and in other cases have pushed back on that
Speaker 1: characterization and things was simply a riot that had gone
Speaker 1: too far. The judge in this case sort of struck
Speaker 1: the middle ground. He clearly shot down any suggestion that
Speaker 1: this was an exercise of First Amendment rights. He said
Speaker 1: that this was an instance in which the chambers of
Speaker 1: Congress were empty during the most solemn act of the
Speaker 1: democracy certifying who the next president is. This was clearly
Speaker 1: not an act of First Amendment speech and would not
Speaker 1: be viewed that way by this judge or I think
Speaker 1: any other judge. So on the whole, would you say
Speaker 1: that haul Hodgkinson sentence, Well, the judge did specifically single
Speaker 1: out the symbolism of the actions that day, So, in
Speaker 1: other words, he did not simply look at the fact
Speaker 1: that this individual had entered the Senate floor and marched
Speaker 1: around with a Trump flag. The judge went on to
Speaker 1: say that this was an act of symbolism that was
Speaker 1: unmistakable that the defendant in this case, by entering the
Speaker 1: Senate floor carrying a flag for Trump rather than the
Speaker 1: American flag, was declaring his loyalty to a single individual
Speaker 1: over the nation, and he went so far as to
Speaker 1: characterize it as a threat to democracy. He then did
Speaker 1: give the defendant a sentence that was, as you say,
Speaker 1: below the guideline range, and some would consider it to
Speaker 1: be perhaps too lenient under the circumstances. What's going to
Speaker 1: be interesting going forward is to look at how this
Speaker 1: sentence has set the bar for future defendants who may
Speaker 1: be sentenced. There's essentially three classes of individuals here. There
Speaker 1: are non violent fell ones such as this individual. There
Speaker 1: are others who have put guilty to misdemeanors, and then
Speaker 1: there are those who committed violent felony acts, who have
Speaker 1: injured police officers and who have destroyed property in the
Speaker 1: course of the actions of January six. We have yet
Speaker 1: to see one of those violent felons sentenced, and it
Speaker 1: would be interesting to see how harsh those sentences will be.
Speaker 1: As you said, this will set a bar. But do
Speaker 1: other judges sentencing defendants in this case have to follow this?
Speaker 1: Do they have to say, Oh, Judge Moss only sentenced
Speaker 1: a man who wasn't violent to eight months, I can
Speaker 1: sentence this person two more than that. No, not at all.
Speaker 1: Each judge has the right to make the individual decision
Speaker 1: as to what the sentence should be for the individual defendant.
Speaker 1: No two cases are the same. No two defendants are
Speaker 1: the same. Their backgrounds are different, their conduct is different,
Speaker 1: what they were charged with is different, The time in
Speaker 1: which they decided to plead guilty might be different, the
Speaker 1: extent to which they cooperated with prosecutors might be different.
Speaker 1: So every single defendant will have a set effects and
Speaker 1: circumstances that is different for them, unique to them, and
Speaker 1: each judge will decide for him or herself what the
Speaker 1: appropriate sentence will be. I expect that we will see
Speaker 1: some disparity in sentencing among the various sederal judges who
Speaker 1: handle these cases because they are so unique. There really
Speaker 1: is no precedent for this type of conduct. That capital
Speaker 1: has not been stormed in this country for more than
Speaker 1: two hundred years, and so it's something that is not
Speaker 1: within the history of any of the judges who were
Speaker 1: sitting on the bench. And they're gonna look at these
Speaker 1: facts and circumstances, and they're gonna have to weigh the
Speaker 1: individual conduct against the symbolic impact of what the sentence
Speaker 1: will be. They're gonna have to look at what the
Speaker 1: individual did, and they're also gonna have to look at
Speaker 1: the impact that that conduct may have had on the
Speaker 1: larger group of individuals and on the country as a whole.
Speaker 1: That's gonna be a very difficult balancing test, and I
Speaker 1: think we're going to see different judges come out with
Speaker 1: different sentences under those circumstances this I expect that we
Speaker 1: will see some disparity in sentencing among the various sederal
Speaker 1: judges who handle these cases because they are so unique.
Speaker 1: There really is no precedent for this type of conduct.
Speaker 1: That capital has not been stormed in this country for
Speaker 1: more than two hundred years, and so it's something that
Speaker 1: is not within the history of any of the judges
Speaker 1: who were sitting on the bench. And they're going to
Speaker 1: look at these facts and circumstances, and they're gonna have
Speaker 1: to weigh the individual conduct against the symbolic impact of
Speaker 1: what the sentence will be. They're gonna have to look
Speaker 1: at what the individual did, and they're also gonna have
Speaker 1: to look at the impact that that conduct may have
Speaker 1: had on the larger group of individuals and on the
Speaker 1: country as a whole. That's going to be a very
Speaker 1: difficult balancing test, and I think we're going to see
Speaker 1: different judges come out with different sentences under those circumstances. Hodgkins,
Speaker 1: though he was among the first two offered to plead guilty,
Speaker 1: he didn't enter a cooperation deal with prosecutors. What does
Speaker 1: that mean? Do you get less time with you enter cooperation?
Speaker 1: Do you what does it mean? Yeah? So, if the
Speaker 1: defendant decides to cooperate with prosecutors, that means that they
Speaker 1: provide some substantial assistance in the prosecution of other individuals. So,
Speaker 1: for example, in these cases where they are talking about
Speaker 1: the riots that occurred on January six, the defendant might
Speaker 1: assist prosecutors in identifying other defendants who may have breached
Speaker 1: the capital grounds, who may have engaged in acts of violence,
Speaker 1: who may have destroyed property, and that leads to the
Speaker 1: prosecution of other individuals, and in that case, prosecutors will
Speaker 1: recommend a sentence below the guideline range to reward them
Speaker 1: for assisting them in prosecuting other individuals who are involved
Speaker 1: in criminal conduct. Now, prosecutors did not seek enhanced domestic
Speaker 1: terrorism penalties against Hodgkins. If they did that in the future,
Speaker 1: that would enhance his sentence, right. You know, there are
Speaker 1: certainly opportunities for prosecutors to large these cases in ways
Speaker 1: that will result in longer sentences. So some of what
Speaker 1: we saw in this particular sentencing was a decision by
Speaker 1: prosecutors not to charge a more serious crime than they
Speaker 1: could have under these circumstances. But that's not to say
Speaker 1: with other defendants they might not take a much harder line,
Speaker 1: particularly those who were engaged in violence with police officers
Speaker 1: and those who destroyed property on federal grounds. I think
Speaker 1: we'll see prosecutors throw the book at those individuals, and
Speaker 1: we will certainly see longer prison sentences handed down by
Speaker 1: judges in those cases. So, talking about some of the
Speaker 1: defenses that have been raised so far, a lot of
Speaker 1: the defendants to they were caught up in the chaos.
Speaker 1: Then other defendants say that they've been going through a
Speaker 1: lot the pandemic, or hardships, bad childhoods have been mentioned,
Speaker 1: They were subject to misinformation. One man's attorneys said the
Speaker 1: reason he was there is because he was a dumb
Speaker 1: blank and believed what he heard on Fox News. But
Speaker 1: then as opposed to what they there are the selfies
Speaker 1: they took bragging about their participation in the riot, and
Speaker 1: there was paramilitary equipment they carried with them. How did
Speaker 1: the judge weigh those factors? Well, you've identified what are
Speaker 1: the real tensions here? So you see defense lawyers following
Speaker 1: the well worn path of trying to make their clients
Speaker 1: humanized in front of the judge. Show them as real
Speaker 1: people struggling with typical day to day experiences. And in
Speaker 1: this case, you did have a circumstance because of the
Speaker 1: pandemic where people were suffering, There was unemployment, people were
Speaker 1: affected health wise, lots of stress that was put on individuals,
Speaker 1: and defense lawyers are trying to point to those circumstances
Speaker 1: to show that this was an aberrant act. If their
Speaker 1: clients have no criminal history, they're looking to say that
Speaker 1: these people are not a threat to commit a similar
Speaker 1: crime in the future, and the judge should be lenient
Speaker 1: in terms of their sentencing. On the other hand, prosecutors
Speaker 1: can look to exactly where you're talking about the fact
Speaker 1: that individuals showed up with combat attire, they brought walkie talkies. Uh,
Speaker 1: there was acts of premeditation. This was not a spur
Speaker 1: of the moment kind of decision where they showed up
Speaker 1: to peacefully protest. Necessarily, there's examples and some evidence that
Speaker 1: there was some planning and some uh thought given to
Speaker 1: possibly getting involved in violence based upon the attire of
Speaker 1: many of the people who showed up. So in that case,
Speaker 1: I think a judge could look at that and say,
Speaker 1: this was not an act of somebody who acted impulsively.
Speaker 1: This is something that was planned, There was thought given
Speaker 1: to this, this is something that was premeditated and therefore
Speaker 1: deserves a harsher sentence. But how much reliance would a
Speaker 1: judge place on what the defendant does between the time
Speaker 1: arrested and the time of sentencing. For example, Hodgkins volunteered
Speaker 1: at an animal shelter. There was a woman who wrote
Speaker 1: book and movie reports on Schindler's List, and the legal
Speaker 1: memoir Just Mercy. So these obvious ploys I'm a good person.
Speaker 1: How much do they weigh with a judge, Well, it
Speaker 1: really varies from judge to judge. Judges will look to
Speaker 1: see whether they believe a defendant is truly remorseful, whether
Speaker 1: they are truly contrite, and whether they really do understand
Speaker 1: the significance of their conduct. This is something that was
Speaker 1: a true aberration or something that is likely to be
Speaker 1: repeated in the future. And defense lawyers will often have
Speaker 1: their clients take certain actions, maybe do some community service
Speaker 1: or other things to show the judge, even prior to sentencing,
Speaker 1: that they have learned their lesson, that they are remorseful,
Speaker 1: and that they're looking for a lighter sentence here. So
Speaker 1: sometimes that will affect the judge. Sometimes they will be
Speaker 1: swayed by that and be convinced that this really is
Speaker 1: a good person who simply did one bad thing, as
Speaker 1: opposed to a bad person. Who mayly repeat this conduct
Speaker 1: sometime in the future. Thanks Bob. That's Robert Mints of
Speaker 1: McCarter and English. More than six hundred thousand Dreamers got
Speaker 1: a joke last Friday when a Texas judge declared the
Speaker 1: DOCTA program illegal. On Thursday, Vice President Kamala Harris met
Speaker 1: with Dreamers who came into this country as undocumented children
Speaker 1: to reassure them. I want to make clear to the
Speaker 1: Dreamers who are here and those who are watching from home,
Speaker 1: this is your home. This is your home, and we
Speaker 1: see you, and you are not alone. The judge put
Speaker 1: his order on hold as the appeals process plays out.
Speaker 1: Joining me is Leon Fresco, a partner at Holland and
Speaker 1: Night and the former head of the Justice Department's Office
Speaker 1: of Immigration Litigation. Leon why did the judge declare DOCCA illegal?
Speaker 1: He ruled that it violated the Administrative Procedure Act because
Speaker 1: the change of the immigration law or procedure for permitting
Speaker 1: people who didn't have status to a not just evade removal,
Speaker 1: but be actually obtain employment authorization and have legal status
Speaker 1: and even get in some cases what's called evans parole
Speaker 1: that allows you to travel and re enter the country.
Speaker 1: That process that's all known as data needed to be
Speaker 1: done through a procedure called notice and comment, where a
Speaker 1: proposed rule was promulgated and a comment period would be
Speaker 1: given and then only after that would a final rule
Speaker 1: be issued. And the failure to do that in twelve
Speaker 1: or since between one continues to be fatal to the
Speaker 1: DOCCER program such that it's not valid. This has been
Speaker 1: in the court several times, it's been up to the
Speaker 1: Supreme Court, but this was never brought up that it
Speaker 1: should go through the administrative c direct. Well, here's what's happened.
Speaker 1: This case has had a very tortured procedural history. So
Speaker 1: when DOCCA first came out in the Ice Union was
Speaker 1: the only group that actually sued it wasn't the State
Speaker 1: of Texas about the case related to DACA. And there
Speaker 1: in that case, that case didn't end up going anywhere
Speaker 1: because there was a belief by the courts that the
Speaker 1: Ice Union did not have standing to sue because they
Speaker 1: weren't harmed by the lack of enforcement of immigration law.
Speaker 1: And so that case when nowhere the Ice Union case.
Speaker 1: Then what happened was in when the Obama administration issued
Speaker 1: a different program called DOPA, not DOCA, which was for
Speaker 1: the parents of people who were US citizen children and
Speaker 1: lawful permanent residents children, but the parents who were here
Speaker 1: were undocumented, that they would be able to get a
Speaker 1: similar deferred action and a work permit as the data children.
Speaker 1: When that program was issued. That's when the State of
Speaker 1: Texas sued in the Southern District of Texas in front
Speaker 1: of this judge, Judge Haynan, And that process was about
Speaker 1: a year long process that ended up going to the
Speaker 1: Fifth Circuit in the Supreme Court, where the Supreme Court
Speaker 1: didn't actually hear the case, they just split four four.
Speaker 1: But that meant that the Fifth Circuit decision saying that
Speaker 1: top PA was illegal for lack of notice and comment,
Speaker 1: that that program went away. Then what happened was Trump
Speaker 1: got elected and so people said, well, let's do this
Speaker 1: for dot Com, let's get rid of DOTA, and they
Speaker 1: actually filed that case in front of Judge Haynan. But
Speaker 1: what the Trump administration said is no need to worry
Speaker 1: about that, because we are going to end the doctor
Speaker 1: program ourselves. They ended the DOCTA program that went up
Speaker 1: to the Supreme Court, and the Supreme Court said that
Speaker 1: the way that the DOCTA program was ended was improper,
Speaker 1: and then the suit went all the way back to
Speaker 1: Judge Haynan during now the Biden administration, where now finally
Speaker 1: this issue has been reckoned with, which is whether the
Speaker 1: original dot CO program suffered the same flaws as the
Speaker 1: pop program that was stricken. Is she saying that it's
Speaker 1: not legal to do it as an executive order? The
Speaker 1: enter to your question is yes. But there are two
Speaker 1: schools of thought. There's a school of thought that's held
Speaker 1: pretty much by fifty percent of the legal community that says,
Speaker 1: this is simply about prosecutorial discretion, and so any administration
Speaker 1: can decide who to prosecute and who not to, and
Speaker 1: can even set guidance for who to prosecute and not prosecute.
Speaker 1: And so that's what the Biden and the Obama administration
Speaker 1: previously had thought. And then there's the group of thought
Speaker 1: that's held by about the other fifty percent of the
Speaker 1: legal community that says, no, you can do on a
Speaker 1: case by case individual basis, all the prosecutorial discretion you want,
Speaker 1: but once you write a memo that says these people
Speaker 1: get prosecutorial discretion and these other people who are not
Speaker 1: part of this memo are not guaranteed prosecutorial discretion. That
Speaker 1: is a regulation basically, and that that regulation needs to
Speaker 1: go through the formal rulemaking process. It can't just be
Speaker 1: a memo. So why did the judge stay his decision?
Speaker 1: What he's really saying is, look, I'm staying my decision
Speaker 1: with regard to people already in this program, and I'm
Speaker 1: going to punt it to the Fifth Circuit and or
Speaker 1: the Supreme Court to decide whether my stay should be lifted. So, I,
Speaker 1: Judge Haynan, don't want to be the person that ended
Speaker 1: the DOCCA program for all of the people who are
Speaker 1: already on DACA, because I understand how much reliance there
Speaker 1: is and how many hundreds of thousands of people are
Speaker 1: in that program. So if I'm wrong, I don't want
Speaker 1: to be the person who did this. So I'm going
Speaker 1: to give you a decision on what I think the
Speaker 1: legal outcome is, and I think the legal outcome is
Speaker 1: that DOCCA is illegal. But I'm not going to implement
Speaker 1: that decision. I'm going to stay that decision and allow
Speaker 1: another court to opine on the legality and let them
Speaker 1: decide whether that's it. Now, it's time to issue the
Speaker 1: data recision, or whether we wait till the Supreme Court
Speaker 1: then issues a Docta decision, or maybe the Supreme Court
Speaker 1: says data is legal and there was no need to
Speaker 1: have created this turmoil in the program. So Haynan is
Speaker 1: a George W. Bush appointee. Vox said, he's been described
Speaker 1: as possibly the most anti immigrant judge in the country.
Speaker 1: Does he have a record on immigration? I think what
Speaker 1: where those where those statements come from, is there was
Speaker 1: a decision prior to the Dappa decision, So there's not
Speaker 1: the Dappa case and there's this Docta case. But I
Speaker 1: think where these statements come from like that in the articles,
Speaker 1: is there was a case prior to those two that
Speaker 1: was related to people who are unaccompanied miners coming into
Speaker 1: the United States. And the judge described the process under
Speaker 1: the t v p r A, the Trafficking Victims Protection Act,
Speaker 1: which is the law that was passed unanimously by Congress.
Speaker 1: Mind you, he described that process which requires the government
Speaker 1: to take in an unaccompanied minor and to find a
Speaker 1: guardian for that minor and allow the minor to stay
Speaker 1: with that guardian while their immigration case is pending, not
Speaker 1: in detention, He described that as the US government doing,
Speaker 1: you know, the final piece of the work for the smuggler.
Speaker 1: So the smuggler takes the child to the US government,
Speaker 1: and the US government finishes the smugglers work by providing
Speaker 1: the child exactly to who the smuggler wanted the child
Speaker 1: to be provided to. And so by making that statement
Speaker 1: in that decision, that to where I think sort of
Speaker 1: all of the comments about Judge Hanen were generated from
Speaker 1: because they said, well, that's just the law, so you know,
Speaker 1: the cast it in that manner, uh seemed to show
Speaker 1: that the disagreed with that law. And so then adding
Speaker 1: that to the Doctor decision, the not By decision, and
Speaker 1: now the Docka decision, this is why people levy that criticism.
Speaker 1: So the Supreme Court last year issued a ruling that
Speaker 1: upheld DOCCA, but it doesn't address this issue that would
Speaker 1: be before the court this time. Right, So the Supreme
Speaker 1: Court decision was about whether the manner in which the
Speaker 1: Trump administration revoked DOCTA, whether that manner was procedurally correct,
Speaker 1: because the Trump administration had only said that the reason
Speaker 1: it was revoking DOCCA was because it was illegal. That
Speaker 1: was it. That was the only reason that they gave
Speaker 1: and Justice Roberts had written a decision which said, well,
Speaker 1: you can't say that because you have to take a
Speaker 1: bunch of different interests into account in how you revoked
Speaker 1: the programs, such as the reliance interests of the people
Speaker 1: in the program, and so you have to go back
Speaker 1: and try to do it again. And the Trump administration
Speaker 1: was in the process of trying to do that again
Speaker 1: when obviously the election happened, and so you know, there
Speaker 1: was lower court cases working on that getting its way
Speaker 1: back to Supreme Court. So they never grappled with the
Speaker 1: actual underlying issue. Is the DOCTA program legal? And so
Speaker 1: now that's what's going to be inevitably before the Supreme
Speaker 1: Court is whether the DOCCA program is legal or not.
Speaker 1: Did three conservative justices say DOCCA was illegal? Well? Right,
Speaker 1: so you had the Justice Thomas and Justice Alito and
Speaker 1: Justice Gore said group that said yes that DACA was illegal,
Speaker 1: and they wanted to call it illegal right there. And
Speaker 1: so what you're gonna see in this case is we're
Speaker 1: gonna have to see now what the Roberts and Coney
Speaker 1: Barrett's and having a group decides to do about this.
Speaker 1: And Kavanaugh wanted to do an interesting sort of compromise situation,
Speaker 1: which now we're going to just have to see where
Speaker 1: those three Cavanaugh, Coney, Barrett, and Roberts come into play
Speaker 1: with the decision as to whether DOCCA ends up being
Speaker 1: legal or illegal. Now, everybody's gonna have to grapple with that,
Speaker 1: and that's what we're going to have to wait and see.
Speaker 1: It was a five to four decision that was the
Speaker 1: Chief Justice with the late Justice Ruth Bader Ginsburg and
Speaker 1: the three liberals who are now on the court. So
Speaker 1: it's a way different court now, right, it's a different court,
Speaker 1: And so Kavanaugh, who didn't want to actually grapple with
Speaker 1: the legality of DOCCA, is going to have to do it,
Speaker 1: as is Coney Barrett, who was not on the court,
Speaker 1: and Roberts, who had ruled that DACCA should stay in
Speaker 1: place but hadn't ruled on the legality of DACA. So
Speaker 1: Biden says, the Department of Justice is going to appeal
Speaker 1: the decision that goes to the Fifth Circuit, the most
Speaker 1: conservative circuit in the country. Have they ruled in immigration
Speaker 1: matters before, So the Fifth Circuit has ruled in this
Speaker 1: exact same case for top the program that does the
Speaker 1: exact same things, but for the parents of people who
Speaker 1: have US cities in children. They said the exact same thing,
Speaker 1: that this notice and comment non issuance threatens the whole
Speaker 1: law and makes it fatally flawed such that the program
Speaker 1: is illegal. So they've already done that, And there's no
Speaker 1: reason to expect, because that's binding Fifth Circuit precedent, that
Speaker 1: the Fifth Circuit will change its mind here. And so
Speaker 1: the question is really what happens at the Supreme Court?
Speaker 1: And so there and there's actually a different question too.
Speaker 1: There's two different questions happening at the same time. What
Speaker 1: happened that the Supreme Court? And then secondly, will either
Speaker 1: Congress act in the mean time visa the reconciliation or
Speaker 1: something else, And will the administration actually do a notice
Speaker 1: and comment rule in the meantime that will change the
Speaker 1: matters in this case? President Biden as soon as he
Speaker 1: was in office, he signed an executive order that called
Speaker 1: on the Secretary of Homeland Security and the a G
Speaker 1: to take all actions he deems appropriate consistent with applicable
Speaker 1: law to preserve and fortified DOCCA and DHS reiterated on
Speaker 1: Friday that it remains focused on safeguarding doc and we
Speaker 1: will engage the public in a rulemaking process to preserve
Speaker 1: and fortify DOCCA. Are they talking about a whole new
Speaker 1: rule that will go through rulemaking process and they're talking
Speaker 1: about they're talking about issuing a rule that does exactly
Speaker 1: what Judge Haynan said needed to be done. And so
Speaker 1: I think that rule they've been working on it, So
Speaker 1: it would just be a matter of strategically do they
Speaker 1: want to do it or do they want to wait
Speaker 1: till the litigation is much further along and then do it.
Speaker 1: And I think that's going to be a strategic question,
Speaker 1: but at some point they're gonna want to do it.
Speaker 1: And when they do that, then that will actually make
Speaker 1: the case go all the way back for the real
Speaker 1: issue that hasn't been adjudicated yet, which is does it
Speaker 1: violate to take Care Clause of the Constitution. Jayna didn't
Speaker 1: want to even go down that route because he said
Speaker 1: that it violates the Administrative Procedure Act. So if the
Speaker 1: new rule doesn't violate the Administrative Procedure Act, then they'll
Speaker 1: have to relitigate this issue yet again about to take
Speaker 1: Care clause. How would it violate to take care clause.
Speaker 1: So what the argument of the people who say this
Speaker 1: is that because there are laws that specifically say that
Speaker 1: when the government encounters someone without status, it shall place
Speaker 1: them in removal proceedings, the decision not to do that
Speaker 1: on a categorical basis, not not in the prosecutorial discretion
Speaker 1: one off basis, but in any kind of a grammatic basis,
Speaker 1: would be the president openly flouting the instruction that a
Speaker 1: person shall be placed into removal proceedings when they're encountered
Speaker 1: by the government and they don't have status. Why wouldn't
Speaker 1: they just issue the rule as soon as possible. I
Speaker 1: think the reason is there may be some value so
Speaker 1: long as there's this stay present and even though new
Speaker 1: people can't join the program, at least the people who
Speaker 1: have been relying on the program can stay in it.
Speaker 1: There may be some value in dragging that out as
Speaker 1: long as possible, and then maybe mooting the case out
Speaker 1: later with the rule and making it start all over again.
Speaker 1: If that makes sense that if you do the rule,
Speaker 1: you lose some of that time you might otherwise be
Speaker 1: able to sort of extend by not issuing the rules
Speaker 1: so quickly. The reconciliation process just explain what that is. Sure,
Speaker 1: So what happens is this Congress normally requires a majority
Speaker 1: vote in the House and then sixty votes in the
Speaker 1: Senate in order to pass a law because of what's
Speaker 1: been known in the tradition as the filibuster. And so
Speaker 1: what reconciliation is it's a actual rule that was placed
Speaker 1: in the seventies in the Senate that said, if you're
Speaker 1: going to actually do something for budgetary purposes, this is
Speaker 1: so important that we don't want to have that be
Speaker 1: subject to the filibuster. So that only requires a majority
Speaker 1: vote in the Senate to pass something that will allow
Speaker 1: the budget to be affected in one way or the other.
Speaker 1: And that's called budget reconciliation. And so there's an open
Speaker 1: question as to whether immigration provisions can survive this budget
Speaker 1: reconciliation process, because what can happen is if you oppose
Speaker 1: the provision, you can make what's called the parliamentarian objection,
Speaker 1: and the parliamentarian can decide is this something that has
Speaker 1: a budget impact or not. And so it will really
Speaker 1: depend on how these things are drafted, how narrowly, how broadly,
Speaker 1: and the or broadly there draft him. The harder it
Speaker 1: is to say, this is a budgetary thing and not
Speaker 1: an immigration thing. But if you can really drive some
Speaker 1: very narrow language around generating a fee and exchange for
Speaker 1: people being able to have legal status, it's possible that
Speaker 1: that can survive the reconciliation process and actually be included
Speaker 1: in a fifty vote bill, which will make it much
Speaker 1: easier to save DOTA. Thanks Leon, that's Leon Fresco of
Speaker 1: Hollanden Night. Remember you can always at the latest legal
Speaker 1: news on our Bloomberg Law Podcast. You can find them
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Speaker 1: here on Bloomberg Radio.