WEBVTT - Justices Grapple with Texas Abortion Law 0:00:01.160 --> 0:00:04.000 On Monday, the Supreme Court heard arguments in a high 0:00:04.080 --> 0:00:07.560 stakes case over the strictest abortion law in the country, 0:00:07.920 --> 0:00:11.080 the Texas law that has stopped most abortions in the state. 0:00:11.760 --> 0:00:15.520 A key focus was on the unusual provision Texas included 0:00:15.800 --> 0:00:19.520 that makes the law enforceable only through private lawsuits in 0:00:19.640 --> 0:00:22.960 order to keep federal courts from getting involved and blocking it. 0:00:23.400 --> 0:00:27.600 Four of the Justices, Stephen Bryer, Elina Kagan, Sonya Soto Mayor, 0:00:27.680 --> 0:00:31.159 and the Chief Justice John Roberts, had already voted to 0:00:31.240 --> 0:00:34.479 pause the law before it went into effect, and Justice 0:00:34.560 --> 0:00:38.120 Kagan was the most vocal critic of the law, arguing 0:00:38.120 --> 0:00:40.720 that its purpose was to get around the courts earlier 0:00:40.800 --> 0:00:44.520 rulings about who can be sued to enforce constitutional rights. 0:00:45.280 --> 0:00:48.440 And essentially, we would be like, you know, we're open 0:00:48.560 --> 0:00:53.080 for you're open for business. There's there's ah, there's there's 0:00:53.080 --> 0:00:56.280 nothing the Supreme Court can do about it. Guns, same 0:00:56.320 --> 0:01:00.760 sex marriage, religious rights, whatever you don't like, go ahead. 0:01:01.080 --> 0:01:02.920 And it came as a bit of a surprise when 0:01:03.000 --> 0:01:06.600 Justice Brett Kavanaugh signaled he agreed with Kagan. What are 0:01:06.600 --> 0:01:10.880 you saying, absent that uh, that Second Amendment rights free 0:01:10.880 --> 0:01:15.080 exercise of religion rights, free speech rights could be targeted 0:01:15.959 --> 0:01:19.760 by other states in this using the ex part a 0:01:19.880 --> 0:01:23.720 young uh language on one sixty three, and to really 0:01:24.520 --> 0:01:27.440 infringe those and to put huge penalties. To the Chief 0:01:27.520 --> 0:01:31.640 justice hypothetical say everyone who sells an a R fifteen 0:01:32.400 --> 0:01:35.080 is liable for a million dollars to any citizen. My 0:01:35.160 --> 0:01:38.080 guest is Leah Littman, a professor of constitutional law at 0:01:38.080 --> 0:01:41.479 the University of Michigan Law School. Tell us about what 0:01:41.600 --> 0:01:44.800 you saw as some of the major concerns that the 0:01:44.920 --> 0:01:49.640 justices voice, so their concerns they had for both sides. 0:01:49.960 --> 0:01:54.559 On the plaintift side, they were concerned about the prospect 0:01:55.040 --> 0:02:00.400 that plaintifts could sue judges and kirks. In one moment, 0:02:00.560 --> 0:02:03.880 the Chief Justice said to the advocates, you know, you 0:02:03.960 --> 0:02:09.840 might understand our hesitation about allowing people to sue judges. 0:02:09.919 --> 0:02:12.320 You know, they are judges themselves, and that's just not 0:02:12.480 --> 0:02:15.360 kind of the ordinary course of this litigation. On the 0:02:15.400 --> 0:02:20.800 other side, to Texas, several justices indicated a real discomfort 0:02:20.880 --> 0:02:26.079 with the prospect that states could nullify disfavored constitutional rights 0:02:26.120 --> 0:02:31.480 and essentially undermine the Supreme Court authority to decide whether 0:02:31.520 --> 0:02:37.120 state laws are constitutional. Justice Kagan argued that Texas was 0:02:37.200 --> 0:02:40.560 making an end run around the Supreme Court precedent, and 0:02:40.560 --> 0:02:43.240 it would be inviting other states to try to flout 0:02:43.440 --> 0:02:47.960 other precedent. Justice Kavanaugh talked about a loophole that's being 0:02:48.160 --> 0:02:52.600 exploited here. So did he seem to suggest that the 0:02:52.639 --> 0:02:56.320 Court should close up the loophole. So I don't think 0:02:56.360 --> 0:02:58.760 it is a loophole for the Court to close up 0:02:58.919 --> 0:03:03.040 so much as a structured state law that no court 0:03:03.080 --> 0:03:06.120 has ever really confronted, or at least the Supreme Court 0:03:06.200 --> 0:03:10.239 has not. That is, no state, as Solicitor General Elizabeth 0:03:10.240 --> 0:03:15.000 Prelocker said, has ever done what Texas has tried to do, namely, 0:03:15.080 --> 0:03:20.600 to box out the federal judiciary entirely from enforcing its 0:03:21.160 --> 0:03:26.080 decisions recognizing a constitutional rights. And so the loophole that 0:03:26.200 --> 0:03:30.920 Texas exploited was just the general rule m the Supreme 0:03:30.960 --> 0:03:37.000 Court's decisions that you ordinarily do state executive officials who 0:03:37.040 --> 0:03:40.360 have some connection to the enforcement of a law. And 0:03:40.400 --> 0:03:43.520 what Texas did is it tried to remove all state 0:03:43.560 --> 0:03:47.240 executive officials from the enforcement of this law and therefore 0:03:47.400 --> 0:03:51.880 remove any possible defendant that the plantifts could do. In 0:03:52.000 --> 0:03:55.760 order to prevent this law for being in effect. It 0:03:55.840 --> 0:04:00.560 seemed like Justice Coursage was pushing back on that and 0:04:00.680 --> 0:04:03.880 kept asking, you know, have you ever done this before? 0:04:03.880 --> 0:04:05.720 Has there ever been a suit like this before? Has 0:04:05.760 --> 0:04:08.600 there ever been an injunction like this before? Does it 0:04:08.640 --> 0:04:11.440 seem as if some of the conservative justices were looking 0:04:11.480 --> 0:04:16.040 for ways to validate that. Yes, I think that concern 0:04:16.400 --> 0:04:19.039 just doesn't account for the fact that no state has 0:04:19.040 --> 0:04:22.920 ever tried to entirely boxed out the Supreme Court from 0:04:23.040 --> 0:04:26.920 enforcing a constitutional right that the Supreme Court has recognized 0:04:27.000 --> 0:04:29.839 and that the Supreme Court, at least in the here 0:04:29.880 --> 0:04:33.039 and now has said continues to exist. And so the 0:04:33.080 --> 0:04:36.000 other justices just didn't seem bothered by the fact that 0:04:36.440 --> 0:04:39.560 there hasn't been a similar kind of lawsuit to this one. 0:04:40.120 --> 0:04:43.120 Chief Justice rock I think Justice Elena Kagan and Samuel 0:04:43.120 --> 0:04:47.760 Alito referred to this. But Chief Justice Roberts said that 0:04:48.080 --> 0:04:51.359 the authority the US was claiming and bringing its lawsuit 0:04:51.839 --> 0:04:56.480 was a limitless, ill defined authority. So they were questioning 0:04:56.520 --> 0:04:59.000 whether they're ruling if there was a ruling in favor 0:04:59.000 --> 0:05:03.560 of the justice to par could it be limited appropriately? Yes, 0:05:03.760 --> 0:05:08.120 So one question was when if ever, should the United 0:05:08.160 --> 0:05:11.080 States be allowed to do a state under circumstances like 0:05:11.160 --> 0:05:14.680 this one um Given that a premise of the United 0:05:14.680 --> 0:05:18.200 States lawsuit was that Texas had attempted to insulate its 0:05:18.279 --> 0:05:23.400 law from constitutional challenge in the federal courts, their questions were, well, 0:05:23.480 --> 0:05:26.400 what other kinds of laws that might be insulated from 0:05:26.720 --> 0:05:29.800 challenges in federal courts? Could the United States also do? 0:05:30.839 --> 0:05:33.280 Did it seem as if, at least at the beginning 0:05:33.279 --> 0:05:38.159 of the argument that Justice Amy Coney Barrett, she was 0:05:38.240 --> 0:05:41.880 making an argument that this law would not allow abortion 0:05:41.920 --> 0:05:45.880 providers to make a full defense in state court if 0:05:45.920 --> 0:05:47.719 they get sued. So there was this some of the 0:05:47.800 --> 0:05:51.279 justices saying that state court could take care of this. Yes. 0:05:51.480 --> 0:05:54.760 So part of her point was responding to a question 0:05:54.880 --> 0:05:59.360 from Justice Alito, which is, why isn't it sufficient that 0:05:59.680 --> 0:06:03.600 if abortion providers are sued, they could just say this 0:06:03.680 --> 0:06:09.640 law is unconstitutional and air the constitutional arguments in that way? 0:06:09.760 --> 0:06:13.320 And Justice Bara's point was that wouldn't actually solve the 0:06:13.400 --> 0:06:19.760 constitutional problem given that Texas has limited the provider's ability 0:06:19.880 --> 0:06:25.200 to assert the constitutional defense in these SPA lawsuits, and 0:06:25.400 --> 0:06:29.919 also Texas has made it so these providers can just 0:06:30.000 --> 0:06:34.520 be sued again and again and again, and so merely 0:06:34.640 --> 0:06:38.160 succeeding in one lawsuit isn't going to solve the problem, 0:06:38.400 --> 0:06:42.640 which of which is you could possibly be sued in 0:06:42.760 --> 0:06:46.800 future cases. Did it seem to you as if on 0:06:46.839 --> 0:06:52.080 the conservative side, Justice Alito, and perhaps on the liberal side, 0:06:52.160 --> 0:06:56.160 Justice Kagan, they were both trying to make out and 0:06:56.320 --> 0:07:01.599 clarify the arguments for the conservatives in Aldo's case and 0:07:01.680 --> 0:07:05.120 for the liberal side in Kagan's case. I think that 0:07:05.240 --> 0:07:08.640 some of Deffice Kagan's questions were definitely designed to do that. 0:07:08.760 --> 0:07:11.880 That she wanted to know from the Solicitor General under 0:07:11.880 --> 0:07:15.760 what circumstances the United States could bring suit. She also 0:07:15.800 --> 0:07:19.119 wanted to know what the Solicitor General thought should happen 0:07:19.240 --> 0:07:22.120 with the United States lawsuit if the Supreme Court allowed 0:07:22.120 --> 0:07:26.760 the provider's lawsuits to um continue and air the constitutional 0:07:26.800 --> 0:07:30.840 arguments against SP eight. I don't think Justice Alido was 0:07:30.880 --> 0:07:32.920 trying to do the same that as I think his 0:07:33.080 --> 0:07:37.200 questions were much more designed to advocate for a particular 0:07:37.240 --> 0:07:40.640 position than to clarify the position and to advocate for 0:07:40.680 --> 0:07:44.320 the position in favor of the law. Yes, there's a 0:07:44.320 --> 0:07:47.760 brief and support of abortion clinics that was filed by 0:07:47.880 --> 0:07:55.080 Second Amendment advocates. Justice Kavanaugh questioned Texas over the prospect 0:07:55.160 --> 0:08:00.280 that they could use this kind of law against other things, 0:08:00.320 --> 0:08:06.240 including gun rights. I think the fact that plaintiffs in 0:08:06.320 --> 0:08:10.840 lawsuits for more favored constitutional rights argue that the Texas 0:08:10.840 --> 0:08:15.559 scheme should not be able to foreclose judicial review helps 0:08:15.640 --> 0:08:19.160 the justices to see that this Texas scheme isn't about 0:08:19.840 --> 0:08:22.960 or limited to abortion. Instead, the justices wanted to know 0:08:23.400 --> 0:08:26.480 whether states could use the scheme to undermine religious rights, 0:08:26.480 --> 0:08:29.080 whether states could use the scheme to undermine gun rights, 0:08:29.080 --> 0:08:32.800 whether states could use the scheme to undermine contraception, whether 0:08:32.840 --> 0:08:36.760 states could use the scheme to undermine numerous other constitutional rights. 0:08:36.800 --> 0:08:40.760 And that question was definitely indicating that concern lurking in 0:08:40.800 --> 0:08:45.840 the background is Roe v. Wade. And did it seem 0:08:45.920 --> 0:08:50.880 as if any of the justices sort of acknowledge that 0:08:51.000 --> 0:08:56.680 it was a constitutional right that's in jeopardy. So Justice 0:08:56.679 --> 0:09:01.080 Alito was most explicit in acknowledging that Row and Casey 0:09:01.120 --> 0:09:05.840 are in jeopardy. So he asked whether the provider's decision 0:09:06.240 --> 0:09:09.960 not to perform abortion was not due to spia but 0:09:10.040 --> 0:09:12.120 was instead due to the fact that the Supreme Court 0:09:12.120 --> 0:09:16.040 was reconsidering Rowan Casey in a case this term the 0:09:16.120 --> 0:09:19.720 challenge to the Mississippi statute restricting abortion more than fifteen 0:09:19.720 --> 0:09:23.760 weeks after a person's last period. Justice Corsage, I think 0:09:23.840 --> 0:09:26.400 was the one who said, you know, you're seeking an 0:09:26.400 --> 0:09:29.959 injunction against the world. I think that was actually the 0:09:30.000 --> 0:09:33.400 Chief Justice. Okay, so what about that? Who who would 0:09:33.400 --> 0:09:37.040 be enjoined here? Well? I think the question was about 0:09:37.120 --> 0:09:41.160 who exactly this injunction extended to did extend to every 0:09:41.240 --> 0:09:44.079 private individual who might bring a lawsuit under sp A. 0:09:44.520 --> 0:09:47.440 The Solicitor General clarifies that their position is that the 0:09:47.480 --> 0:09:52.079 injunction extended to state court judges, state court clerks, as 0:09:52.080 --> 0:09:55.920 well as any individual who actually brought a lawsuit, so 0:09:56.400 --> 0:10:00.000 they were not seeking an injunction against the world. Um, 0:10:00.000 --> 0:10:03.160 but I think you're right that the uncertainty about who 0:10:03.160 --> 0:10:09.120 exactly this injunction should apply to all is because of 0:10:09.160 --> 0:10:12.760 the novelty of this law. It makes it no longer 0:10:12.800 --> 0:10:16.120 possible to do the ordinary state officials who plantiff typically 0:10:16.160 --> 0:10:20.000 stew in these cases. They could rule in favor of 0:10:20.040 --> 0:10:24.559 the abortion providers, or in favor of the federal government 0:10:24.880 --> 0:10:28.720 or any which way on combinations of those, did you 0:10:28.920 --> 0:10:35.079 think that one suit held up better than the other? Um. 0:10:35.120 --> 0:10:39.439 I think it is possible that the provider's lawsuits is 0:10:39.559 --> 0:10:42.920 more likely to proceed. Just the justices seemed to be 0:10:42.960 --> 0:10:46.360 more sympathetic to the arguments from the providers and view 0:10:46.400 --> 0:10:50.320 that case as a more straightforward extension of existing cases 0:10:50.440 --> 0:10:53.320 than the lawsuit by the United States. What do you 0:10:53.360 --> 0:10:56.280 think about the new way these oral arguments are going, 0:10:56.360 --> 0:10:59.760 which seemed to go on and on and on. To me, 0:11:00.000 --> 0:11:02.679 it's not as in much of a hot bench as 0:11:02.679 --> 0:11:06.720 it used to be. The justfices are certainly interrupting each 0:11:06.720 --> 0:11:09.280 other less and interrupting the advocates Blessed. I think that 0:11:09.360 --> 0:11:11.480 is partially just a product of the fact that they 0:11:11.520 --> 0:11:13.760 got off a year in which they were just questioning 0:11:13.760 --> 0:11:16.840 people feriata, that is, not asking questions. At the same time, 0:11:16.880 --> 0:11:20.280 it's possible that we will revert more back to the 0:11:20.320 --> 0:11:23.600 previous format as additional time passes, But I do think 0:11:23.640 --> 0:11:28.200 this is a new norm. The last time case was 0:11:28.280 --> 0:11:31.600 heard this quickly was Bush Fie Gore, and the decision 0:11:31.640 --> 0:11:35.679 came down the next day. Are we expecting uh fast 0:11:35.720 --> 0:11:38.880 decision here as well? I am certainly hoping, and I 0:11:38.920 --> 0:11:42.800 would have been the Franks are hoping for UH decision 0:11:42.920 --> 0:11:45.440 quickly because every day that passes. You know, this lower 0:11:45.480 --> 0:11:48.920 isn't a fact that I had not worked care individual. 0:11:49.320 --> 0:11:52.640 So I think people are hoping that the court will 0:11:52.640 --> 0:11:55.480 act quickly, but no one knows. Thanks for being the 0:11:55.480 --> 0:11:59.280 Bloomberg Lasso. Leah. That's Professor Leah Littman of the University 0:11:59.280 --> 0:12:04.560 of Michigan School. A federal jury has decided that a 0:12:04.600 --> 0:12:08.760 private prison operator must pay more than seventeen million dollars 0:12:08.760 --> 0:12:12.360 to immigration detainees who were paid one dollar a day 0:12:12.440 --> 0:12:15.000 to perform tasks such as cooking and cleaning at the 0:12:15.000 --> 0:12:19.520 company's for profit detention center in Washington State. The jury 0:12:19.600 --> 0:12:23.600 also determined that Geo Group must pay its detainee workforce 0:12:23.760 --> 0:12:27.280 minimum wage. Joining me is Leon Fresco, a partner at 0:12:27.280 --> 0:12:30.800 Hollandon Night. Leon, Have you ever heard of a verdict 0:12:30.880 --> 0:12:34.400 on similar grounds? No, In fact, I was a first 0:12:34.400 --> 0:12:37.760 of its kind litigation. That's still a legal issue that 0:12:37.840 --> 0:12:40.000 I think you're gonna expect to see go all the 0:12:40.040 --> 0:12:43.440 way up to the Supreme Court because it's a bit complicated. 0:12:43.520 --> 0:12:48.000 There is a federal appropriation blow from the nineteen seventies 0:12:48.040 --> 0:12:52.439 that says that individuals in immigration detention should be given 0:12:52.480 --> 0:12:56.640 one dollar a day to engage in voluntary work. And 0:12:56.679 --> 0:13:00.320 then there was this Washington lawsuit that talked about, well, 0:13:00.440 --> 0:13:04.040 that's still violating a bunch of different laws, including in 0:13:04.120 --> 0:13:07.160 this case, the one that prevailed was the state minimum 0:13:07.160 --> 0:13:10.640 wage laws. And so you ended up getting this big 0:13:10.760 --> 0:13:15.080 verdict that the work violated the state minimum wage laws. 0:13:15.200 --> 0:13:18.439 And so I do think this case isn't going to 0:13:18.600 --> 0:13:22.719 end without it getting to the Supreme Court, because it 0:13:22.760 --> 0:13:26.160 does implicate a lot of other federal versus state interests 0:13:26.640 --> 0:13:30.520 in terms of, well, why camp federal prisoners also be 0:13:31.360 --> 0:13:35.640 given this option of of of getting minimum wage under 0:13:35.720 --> 0:13:39.480 state laws. And so the complication is, well, this has 0:13:39.480 --> 0:13:41.760 sort of been done that way because the contractor is 0:13:41.800 --> 0:13:46.800 operating the facility, but contractors operate all kinds of facilities, 0:13:46.840 --> 0:13:50.720 and so it is a fascinating legal issue. It's right 0:13:50.920 --> 0:13:55.880 there in the interstases of is it right, is it wrong? 0:13:55.920 --> 0:13:59.120 I mean, there's just a lot of interesting debate about it. 0:13:59.480 --> 0:14:02.640 And so while while I do think this verdict is 0:14:02.840 --> 0:14:06.680 very substantial and it definitely sends a major message, it's 0:14:06.800 --> 0:14:09.439 not I don't think the last word, I think there's 0:14:09.440 --> 0:14:11.800 still a lot of litigation to go. They might prevail 0:14:12.160 --> 0:14:14.679 in the Ninth Circuit, but then the question is they 0:14:14.720 --> 0:14:17.040 get to the Supreme Court. Work would the Supreme Court 0:14:17.120 --> 0:14:20.080 be there? And it sounds like a lot of money. 0:14:20.120 --> 0:14:22.800 It is a lot of money, but per person it 0:14:22.840 --> 0:14:24.640 doesn't come out to be that much because there are 0:14:24.720 --> 0:14:28.800 think are people in the class. Yeah, well, I think 0:14:28.840 --> 0:14:30.920 here's the issue. It's not a lot of money per person, 0:14:31.040 --> 0:14:34.520 that's correct, but it is prohibitive from the standpoint of 0:14:35.320 --> 0:14:39.240 what happens if people at these facilities and the operators 0:14:39.240 --> 0:14:43.000 of the facilities are forced to pay actual minimum wage 0:14:43.520 --> 0:14:47.600 to the individuals who are doing Because the idea of 0:14:47.640 --> 0:14:51.560 the voluntary work is that it prevents sort of idol't 0:14:51.560 --> 0:14:55.160 tie in the facility. It does that the contractors actually 0:14:55.200 --> 0:14:57.880 need the people in the facility to do the work. 0:14:57.960 --> 0:15:01.240 They don't, but it's the dea is you get people 0:15:01.280 --> 0:15:04.000 working and something that they're doing, and so they're not 0:15:04.280 --> 0:15:07.040 idle in the facilities. And so the question is that 0:15:07.240 --> 0:15:10.400 if you have to pay for that voluntary work, what's 0:15:10.400 --> 0:15:13.800 going to happen is the contractors are just gonna provide 0:15:13.840 --> 0:15:16.040 it and they're going to just give it to other 0:15:16.160 --> 0:15:18.840 workers instead, not to the not to the people in 0:15:18.920 --> 0:15:22.760 the detention facilities. And so it will have a couple 0:15:22.760 --> 0:15:26.440 of effects. Number One, it will it will move the workout, 0:15:26.520 --> 0:15:30.240 So yes, it might increase some some jobs to people 0:15:30.280 --> 0:15:32.960 who aren't in the facilities, but it will also create 0:15:33.000 --> 0:15:36.040 this idleness in the facility, which is what was this 0:15:36.120 --> 0:15:38.680 was trying to avoid in the first place. But it 0:15:38.800 --> 0:15:44.200 certainly it won't moving forward allow people in these contract 0:15:44.280 --> 0:15:47.120 facilities to get paid minimum wage to do work at 0:15:47.160 --> 0:15:49.760 the facilities. That that's not going to be the response 0:15:49.840 --> 0:15:52.680 to this if this actually ends up being what happened 0:15:52.720 --> 0:15:56.280 moving forward. Let's talk about remain in Mexico, because this 0:15:56.400 --> 0:16:01.400 is a policy that the Biden administration didn't want to continue, 0:16:02.040 --> 0:16:04.920 and the Department of Homeland Security issued a new memo 0:16:05.200 --> 0:16:09.480 terminating it. Where does that stand, Well, here is where 0:16:09.480 --> 0:16:15.080 it stands. On October. The bid administration has said, we 0:16:15.200 --> 0:16:18.040 know that there's a court injunction that forces us to 0:16:18.120 --> 0:16:22.200 continue this Remain in Mexico policy, but we are going 0:16:22.240 --> 0:16:27.120 to nevertheless try to provide another justification that will convince 0:16:27.160 --> 0:16:30.360 the courts to get rid of its injunction. So that 0:16:30.400 --> 0:16:34.960 we actually can terminate the Remain in Mexico slash Migrant 0:16:34.960 --> 0:16:38.560 Protection Protocol policy, and so they actually, I mean, you 0:16:38.640 --> 0:16:42.880 read this thing. It's incredibly invested thirty nine blog, and 0:16:42.960 --> 0:16:46.360 it goes through all of the different justifications of why 0:16:46.840 --> 0:16:51.080 the Biden administration thanks to Remain in Mexico policy won't work, 0:16:51.600 --> 0:16:55.120 and it goes through access to council problems. And notice 0:16:55.160 --> 0:16:59.119 the hearing problem, that people are unsafe at the facilities 0:16:59.160 --> 0:17:02.080 where they are met Togo, that the US government really 0:17:02.120 --> 0:17:06.000 can't do anything to create faith facilities in Mexico because 0:17:06.040 --> 0:17:10.040 we don't have jurisdictions the police these facilities in Mexico, 0:17:10.160 --> 0:17:12.040 and to keep people saying if it is of course 0:17:12.119 --> 0:17:16.359 a sovereign country, the fact that people miss their hearing, 0:17:17.160 --> 0:17:20.399 the fact that it causes people to keep re entering 0:17:20.520 --> 0:17:22.800 over and over again because they want to see if 0:17:22.800 --> 0:17:25.560 they can get themselves up from under this Remain in 0:17:25.640 --> 0:17:29.320 Mexico policy, and the fact that it would require huge 0:17:29.320 --> 0:17:33.359 investment in Mexico in order for Mexico to continue to 0:17:33.440 --> 0:17:36.680 allow this, which was not the case during the Trump administration. 0:17:37.080 --> 0:17:40.480 So Leon, who will decide whether or not the administration's 0:17:40.600 --> 0:17:44.040 memo can go into effect. The question is in the end, 0:17:44.160 --> 0:17:47.640 is the Northern Disference of Texas going to agree that 0:17:47.760 --> 0:17:52.359 this meets the standard for not being an arbitrary and 0:17:52.440 --> 0:17:57.320 capricious revocation of the remaining in Mexico policy and finally 0:17:57.359 --> 0:18:02.160 allow the Biden administration to remove the policy, or will 0:18:02.200 --> 0:18:05.640 they say Nope, this is yet again arbitrary and capricious, 0:18:05.680 --> 0:18:10.360 because there is no justification you can give us for 0:18:10.720 --> 0:18:16.560 removing this policy. This policy from a purely immigration enforcement perspective, 0:18:16.960 --> 0:18:19.720 makes sense to us, and that what you should do 0:18:19.880 --> 0:18:23.680 is either detain every single person who comes to America 0:18:24.040 --> 0:18:27.760 while their proceedings are pending, and if you can't maintain them, 0:18:28.000 --> 0:18:30.119 have them weight in Mexico. But no one should be 0:18:30.200 --> 0:18:34.359 allowed to just walk in and be free within the 0:18:34.440 --> 0:18:37.280 United States while their court case is pending, because there's 0:18:37.320 --> 0:18:39.560 too much of a likelihood that they won't show up 0:18:39.600 --> 0:18:42.280 the court. That's what the judge said last time. And 0:18:42.480 --> 0:18:45.480 so I don't know if the judge is going to 0:18:45.560 --> 0:18:49.800 be convinced by even this thirty nine page justification that 0:18:49.960 --> 0:18:52.720 anything should change from that basic view of the world 0:18:52.760 --> 0:18:55.800 that the judge has that why would you get rid 0:18:55.840 --> 0:18:58.520 of this policy? You know, there's just the the the 0:18:58.520 --> 0:19:01.960 the No matter what you think of abut humanitarian concerns, 0:19:02.119 --> 0:19:05.040 those those are of little concern to me as a 0:19:05.160 --> 0:19:08.080 judge because I'm looking at this purely from an immigration 0:19:08.440 --> 0:19:12.080 enforcement angle. So I don't know if the original District 0:19:12.119 --> 0:19:15.040 court judge will change, But the question is will the 0:19:15.119 --> 0:19:18.400 Fifth Certain or the Supreme Court change and say, look, 0:19:18.880 --> 0:19:24.600 even if the immigration enforcement argument isn't great, all of 0:19:24.640 --> 0:19:28.080 these other things about the humanitarian costs and the resources 0:19:28.119 --> 0:19:31.840 and other things are sufficient for an administration to change 0:19:31.840 --> 0:19:34.840 the policy. Otherwise an administration will never be able to 0:19:34.920 --> 0:19:38.600 change any policy no matter what, because as long as 0:19:38.600 --> 0:19:41.240 one judge thinks it doesn't make any sense, that will 0:19:41.280 --> 0:19:43.840 be the end of it. And so that will be 0:19:43.840 --> 0:19:47.520 a very interesting debate to see. Moving forwards, what strikes 0:19:47.600 --> 0:19:50.560 me is this is a policy put in place by 0:19:50.560 --> 0:19:54.920 the Trump administration. So it should be a policy that 0:19:55.200 --> 0:19:59.480 after an election the Biden administration can change. I mean, 0:19:59.560 --> 0:20:06.000 can the courts force administrations to retain old policies that 0:20:06.280 --> 0:20:09.119 they don't believe in? Right? I mean, this is what 0:20:09.160 --> 0:20:12.320 we're gonna see. We saw this in Data to be fair, 0:20:13.000 --> 0:20:16.159 where the Trump administration tried to get rid of DACA, 0:20:16.359 --> 0:20:19.199 and Justice Roberts was the deciding vote. Thing, look the 0:20:19.240 --> 0:20:23.119 way you try to get rid of DACAS arbitrary and capricius. 0:20:23.320 --> 0:20:26.119 Try again. And then we never got to litigate the 0:20:26.160 --> 0:20:29.320 second round of that. Trump was voted out of office, 0:20:29.920 --> 0:20:32.520 and now we're litigating whether doctor is legal or not. 0:20:32.640 --> 0:20:34.679 That's the whole separate issue. But that will be an 0:20:34.680 --> 0:20:37.359 issue that will work its way up to the Supreme Court. 0:20:37.720 --> 0:20:40.600 But now on the flip side, we're seeing this, which 0:20:40.680 --> 0:20:44.240 is Trump's version of DACA was the remain in Mexical policy. 0:20:45.200 --> 0:20:48.080 And so the question is will there be five justices 0:20:48.119 --> 0:20:50.919 on the Supreme Court and say, hey, just like DOCCA, 0:20:51.440 --> 0:20:54.840 guess what, we don't think there's any way that you 0:20:54.880 --> 0:20:57.800 can terminate this remain in Mexical policy. That is an 0:20:57.880 --> 0:21:01.360 arbitrary and capricius because if we're looking at this purely 0:21:01.840 --> 0:21:05.000 from the immigration enforcement angle, and why would you allow 0:21:05.440 --> 0:21:07.800 any human being to be able to just walk into 0:21:07.840 --> 0:21:11.800 the United States, And that's what you're essentially doing if 0:21:11.840 --> 0:21:14.800 you don't have this remain in Mexico policy. And so 0:21:15.040 --> 0:21:17.600 that's the perspective. If you're looking at it from that 0:21:18.040 --> 0:21:22.760 pure perspective of that, then there's no justification that's going 0:21:22.800 --> 0:21:25.720 to overcome that if you're viewing it from well, but 0:21:26.119 --> 0:21:29.440 in Mexico, people are getting a beaten, they're getting a view, 0:21:29.920 --> 0:21:32.760 there's no way to secure the facilities, they're not getting 0:21:32.800 --> 0:21:36.080 counsels to show up for the earring, so everybody's losing 0:21:36.080 --> 0:21:38.320 their case. People don't even know where they're hearing is, 0:21:38.680 --> 0:21:41.639 so you can't even get them. You know, there's tons 0:21:41.680 --> 0:21:44.879 of justifications that they give it that are all very powerful, 0:21:45.480 --> 0:21:48.720 but none of those have anything to do with ending 0:21:48.760 --> 0:21:51.960 a legal immigration so to speak. And so that's the 0:21:52.080 --> 0:21:54.840 question is will any of these other sort of human 0:21:55.000 --> 0:22:02.040 human first or humanitarian justifications be sufficient to overcome the 0:22:02.040 --> 0:22:07.399 the pure immigration enforcement reason why this was allowed to 0:22:07.440 --> 0:22:10.359 remain in the first place. But there are a couple 0:22:10.400 --> 0:22:15.520 of differences between DHAKA and remain in Mexico. One the 0:22:15.640 --> 0:22:19.960 reliance interest that the dreamers have had for years on 0:22:20.040 --> 0:22:23.440 the policy. But also are the Court's going to tell 0:22:23.480 --> 0:22:27.159 Mexico what to do? And so suppose Mexico says no, no, 0:22:27.359 --> 0:22:30.720 we won't. Absolutely, I mean, those are two huge differences, 0:22:30.760 --> 0:22:33.760 as you point out. One, the reliance interest in DACA 0:22:33.840 --> 0:22:37.879 was something Justice Roberts specifically bided as one of his 0:22:38.000 --> 0:22:41.280 reasons for I think this was an arbitrary and comprecions 0:22:41.320 --> 0:22:46.320 withdrawal of Dacca. And there isn't necessarily a reliance interest here, 0:22:46.400 --> 0:22:49.280 although maybe the state of Texas would say, well, we 0:22:49.280 --> 0:22:53.520 were not being uh faced with so many people coming 0:22:53.560 --> 0:22:56.679 in without sattist. Now we are, and so now you 0:22:56.720 --> 0:22:59.119 know we have to change our budgetary plans or whatever. 0:22:59.400 --> 0:23:02.119 That's not going to be the same kind of reliance interests, Docca. 0:23:02.520 --> 0:23:06.359 And so you make an excellent point there, and then 0:23:06.480 --> 0:23:09.520 from the from the standpoint of the Mexican government, and 0:23:09.760 --> 0:23:11.880 you're not gonna be able to hold the Mexican government 0:23:11.880 --> 0:23:15.719 in condemned. So the question is, are our courts really 0:23:15.760 --> 0:23:21.040 prepared to hold the DHS secretary and other DHS officials 0:23:21.080 --> 0:23:25.000 in content of court if they can't force people from 0:23:25.040 --> 0:23:28.960 other countries, not Mexicans. These are people from Central America 0:23:29.200 --> 0:23:32.960 or Haiti or Ecuador or other places to go back 0:23:33.200 --> 0:23:37.840 into Mexico above Mexico's objective, Our courts really going to 0:23:37.960 --> 0:23:41.480 intervene in foreign policy in a way they were they 0:23:41.680 --> 0:23:44.440 you know, for two hundred years I've said they can't 0:23:44.480 --> 0:23:48.320 do and won't do. Uh If this oneted, and that's 0:23:48.359 --> 0:23:50.760 really going to be the question is it at the 0:23:50.840 --> 0:23:53.600 district court again or is it up at the Fifth Circuit. 0:23:54.119 --> 0:23:57.040 So there's two parts of this litigation. So the first 0:23:57.080 --> 0:24:00.000 one on the injunction phase is finished and now they're 0:24:00.040 --> 0:24:04.240 going on the merit phasing in the Fifth Circuit now 0:24:04.560 --> 0:24:09.000 trying to say on the merits, this first termination of 0:24:09.080 --> 0:24:15.399 the Migration Protection Protocol should be taken away. That litigation continues. 0:24:15.600 --> 0:24:19.160 Now there's Memo two and Memo two. So Memo one, 0:24:19.200 --> 0:24:23.520 litigation on the temporary injunction stuff has been upheld, and 0:24:23.760 --> 0:24:27.480 Memo one has been stricten and and remain in Mexico 0:24:27.720 --> 0:24:30.920 staves in place. But they're doing the full merits briefing 0:24:30.960 --> 0:24:34.600 now in the Pittcier case. In that case, now in 0:24:34.680 --> 0:24:38.080 the second issue Memo two, well, Membo two has to 0:24:38.119 --> 0:24:41.320 start again with the Northern Districts of Texas court and 0:24:41.400 --> 0:24:44.159 work its way up again all the way up to 0:24:44.200 --> 0:24:47.880 the Supreme Court. So there's both phases of litigation litigating 0:24:47.920 --> 0:24:53.280 Memo one, litigating Memo two. To another immigration story, the 0:24:53.359 --> 0:24:57.399 Wall Street Journal reported that the Biden administration is looking 0:24:57.440 --> 0:25:00.359 to settle with the immigrant families who were separate from 0:25:00.400 --> 0:25:05.240 their children. During the Trump administration, the administration is reportedly 0:25:05.280 --> 0:25:10.399 considering paying as much as four dollars per person. That 0:25:10.480 --> 0:25:12.760 seems like a lot of money. Yeah, I think here, 0:25:12.840 --> 0:25:15.480