1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:11,480 --> 00:00:15,960 Speaker 2: Even some fellow Democrats, like Congressman Roe Conna, have called 3 00:00:16,000 --> 00:00:19,840 Speaker 2: on eighty nine year old Senator Dianne Feinstein to resign 4 00:00:19,960 --> 00:00:23,599 Speaker 2: from Congress because of her absence since March, which is 5 00:00:23,680 --> 00:00:26,400 Speaker 2: stalling President Biden's judicial nominees. 6 00:00:26,880 --> 00:00:29,319 Speaker 3: So I think many colleagues are hoping she will come 7 00:00:29,360 --> 00:00:30,880 Speaker 3: to the conclusion her own. 8 00:00:30,920 --> 00:00:32,400 Speaker 1: They have a lot of respect for her. 9 00:00:32,560 --> 00:00:34,839 Speaker 3: They don't want to push her in a corner, but 10 00:00:34,880 --> 00:00:37,559 Speaker 3: they're hoping that she will make this decision to have 11 00:00:37,640 --> 00:00:40,960 Speaker 3: dignity in ending a distinguished career. 12 00:00:41,280 --> 00:00:43,920 Speaker 2: The same could be said of ninety five year old 13 00:00:44,000 --> 00:00:47,280 Speaker 2: Judge Paulie Newman of the US Court of Appeals for 14 00:00:47,360 --> 00:00:50,640 Speaker 2: the Federal Circuit. A panel of her fellow judges is 15 00:00:50,680 --> 00:00:55,480 Speaker 2: investigating allegations that Newman may be suffering from cognitive impairment 16 00:00:55,720 --> 00:00:58,880 Speaker 2: that makes her unfit to serve on the bench. Judge 17 00:00:58,920 --> 00:01:01,880 Speaker 2: Newman has been on the Fed Circuit since nineteen eighty 18 00:01:01,960 --> 00:01:05,080 Speaker 2: four and is known as a champion of strong patent 19 00:01:05,160 --> 00:01:07,880 Speaker 2: rights and the most prolific writer of descents in the 20 00:01:07,920 --> 00:01:10,640 Speaker 2: history of the court. But now there is a possibility 21 00:01:10,640 --> 00:01:13,920 Speaker 2: that her legacy may be tarnished by a drawn out 22 00:01:14,000 --> 00:01:17,840 Speaker 2: judicial clash. Joining me is Arthur Hellman, a professor at 23 00:01:17,840 --> 00:01:20,880 Speaker 2: the University of Pittsburgh Law School and an expert on 24 00:01:20,959 --> 00:01:25,400 Speaker 2: judicial ethics. As I understand it, usually the federal judiciary 25 00:01:25,480 --> 00:01:31,720 Speaker 2: resolves these kinds of issues privately. So are these proceedings unprecedented? 26 00:01:32,240 --> 00:01:37,520 Speaker 4: It's certainly unprecedented to have a judicial council or a 27 00:01:37,600 --> 00:01:44,279 Speaker 4: chief judge announced publicly that they've initiated proceedings that appear 28 00:01:44,360 --> 00:01:48,640 Speaker 4: to be designed to push a judge into retirement. That 29 00:01:48,720 --> 00:01:52,440 Speaker 4: has never happened before. As you mentioned, there have been 30 00:01:52,480 --> 00:01:57,040 Speaker 4: problems with judges who appear no longer able to carry 31 00:01:57,080 --> 00:02:01,240 Speaker 4: on their judicial duties. And yes, in the the usual case, 32 00:02:01,560 --> 00:02:06,080 Speaker 4: the chief judge and other judges work privately and behind 33 00:02:06,120 --> 00:02:09,399 Speaker 4: the scenes, and most of the time they do succeed 34 00:02:09,480 --> 00:02:15,320 Speaker 4: eventually in persuading the elderly or impaired judge to retire, 35 00:02:15,440 --> 00:02:19,120 Speaker 4: to take senior status and stop hearing a full load 36 00:02:19,160 --> 00:02:19,760 Speaker 4: of cases. 37 00:02:20,040 --> 00:02:24,400 Speaker 2: So these health problems apparently started years ago. She had 38 00:02:24,560 --> 00:02:27,919 Speaker 2: an undisclosed health event in the summer of twenty twenty 39 00:02:27,960 --> 00:02:31,320 Speaker 2: one and agreed to take on a reduced workload then 40 00:02:31,400 --> 00:02:34,799 Speaker 2: she fainted at an oral argument. According to the complaint, 41 00:02:35,520 --> 00:02:39,120 Speaker 2: half the judges on the court, including the Chief Judge, 42 00:02:39,280 --> 00:02:44,600 Speaker 2: spoke to her about these concerns. So was this just 43 00:02:44,680 --> 00:02:45,600 Speaker 2: the next step? 44 00:02:46,280 --> 00:02:49,360 Speaker 4: Yes, I think that, with one exception, I think Chief 45 00:02:49,400 --> 00:02:52,160 Speaker 4: Judge Moore has handled this by the book or by 46 00:02:52,200 --> 00:02:56,960 Speaker 4: the Act. She began by talking to other judges, thinking 47 00:02:57,000 --> 00:03:00,240 Speaker 4: about what judges had said to her before she had 48 00:03:00,280 --> 00:03:03,360 Speaker 4: done anything. She talked to judges, she talked with staff, 49 00:03:03,400 --> 00:03:05,760 Speaker 4: She got a full picture of what appeared to be 50 00:03:05,840 --> 00:03:12,480 Speaker 4: going on, and all this without any formal proceeding. And 51 00:03:12,840 --> 00:03:15,560 Speaker 4: it's very telling that on the last page of that 52 00:03:15,840 --> 00:03:21,240 Speaker 4: order she explains that before filing the order and initiating 53 00:03:21,280 --> 00:03:25,640 Speaker 4: this formal proceeding, she gave a copy of the draft 54 00:03:25,800 --> 00:03:29,160 Speaker 4: order to Judge Newman and said, look, this is what 55 00:03:29,240 --> 00:03:32,720 Speaker 4: I'm planning to do. I really hope I won't have 56 00:03:32,840 --> 00:03:35,280 Speaker 4: to do it. I'll give you a week please think 57 00:03:35,320 --> 00:03:40,680 Speaker 4: about that. And Judge Moore's hope, obviously was that during 58 00:03:40,720 --> 00:03:43,920 Speaker 4: that week Judge Newman would agree to some kind of arrangement, 59 00:03:44,120 --> 00:03:48,400 Speaker 4: including taking senior status that would obviate the need to 60 00:03:48,720 --> 00:03:51,320 Speaker 4: identify a complaint. But that did not happen. 61 00:03:51,960 --> 00:03:55,280 Speaker 2: There were concerns brought to the Chief Judge about Newman's 62 00:03:55,320 --> 00:03:59,520 Speaker 2: extensive delays in resolving cases and concerns that she may 63 00:03:59,560 --> 00:04:04,000 Speaker 2: suffer from impairment of cognitive abilities, and it stated that 64 00:04:04,360 --> 00:04:08,240 Speaker 2: she routinely makes statements in open court and during deliberative 65 00:04:08,280 --> 00:04:12,320 Speaker 2: proceedings that demonstrate a clear lack of awareness over the 66 00:04:12,440 --> 00:04:16,159 Speaker 2: issues in the cases. So is the concern that she's 67 00:04:16,600 --> 00:04:19,800 Speaker 2: causing the court to look bad to the public. 68 00:04:20,800 --> 00:04:24,039 Speaker 4: Oh, I think it's not simply to look bad, but 69 00:04:24,600 --> 00:04:29,279 Speaker 4: she's interfering with the administration of justice in the court. 70 00:04:29,600 --> 00:04:34,440 Speaker 4: I mean the delays that Judge Moore chronicles there in 71 00:04:34,839 --> 00:04:38,159 Speaker 4: detail are very long delays. I mean a couple of 72 00:04:38,160 --> 00:04:41,120 Speaker 4: them are I think a couple of years between the 73 00:04:41,160 --> 00:04:44,560 Speaker 4: time that Judge Newman was given a case when it 74 00:04:44,640 --> 00:04:48,279 Speaker 4: was ready for submission and the time she finally disposed 75 00:04:48,320 --> 00:04:52,040 Speaker 4: of it. And then in other cases, Judge Moore reassigns 76 00:04:52,160 --> 00:04:56,680 Speaker 4: cases because they'd been sitting in Judge Newman's chambers for 77 00:04:57,120 --> 00:05:02,320 Speaker 4: so long without resolution. And it's important to litigants and 78 00:05:02,480 --> 00:05:05,800 Speaker 4: to the court to get cases disposed of in a 79 00:05:05,880 --> 00:05:09,480 Speaker 4: reasonable amount of time, and that apparently is not happening 80 00:05:09,640 --> 00:05:12,680 Speaker 4: or was not happening with many of the cases assigned 81 00:05:12,680 --> 00:05:15,560 Speaker 4: to Judge Newman. So it's more than an appearance. It 82 00:05:15,680 --> 00:05:19,200 Speaker 4: really is interference with the effective business of the court. 83 00:05:19,680 --> 00:05:24,400 Speaker 2: So explain what this special Committee investigation is. 84 00:05:24,920 --> 00:05:29,960 Speaker 4: Sure, we're talking first about a process that Congress authorized 85 00:05:30,320 --> 00:05:34,440 Speaker 4: back in nineteen eighty in the Judicial Conduct and Disability Act, 86 00:05:35,120 --> 00:05:39,320 Speaker 4: and proceedings under that Act are usually initiated by the 87 00:05:39,360 --> 00:05:42,800 Speaker 4: filing of a complaint by somebody outside the court, a 88 00:05:42,839 --> 00:05:45,719 Speaker 4: litigant or a lawyer, can be anybody actually doesn't have 89 00:05:45,760 --> 00:05:48,200 Speaker 4: to be anybody connected with the case of the court. 90 00:05:48,400 --> 00:05:52,400 Speaker 4: So ninety something percent of the proceedings are initiated in 91 00:05:52,440 --> 00:05:56,320 Speaker 4: that way. But the statute also authorizes the Chief Judge 92 00:05:56,480 --> 00:06:00,799 Speaker 4: to its initiate proceeding by identifying a complaint, and once 93 00:06:00,839 --> 00:06:05,000 Speaker 4: the complaint is identified, the process is the same as 94 00:06:05,040 --> 00:06:08,480 Speaker 4: it would be if the complaint had been filed by 95 00:06:08,520 --> 00:06:13,120 Speaker 4: an outsider, so there's a single process for all complaints. Now, 96 00:06:13,160 --> 00:06:17,479 Speaker 4: most of those complaints that are filed are dismissed because 97 00:06:17,480 --> 00:06:23,000 Speaker 4: they're obviously frivolous or simply an attempt to relitigate the case. 98 00:06:23,720 --> 00:06:28,320 Speaker 4: But if it's not a complaint, if there's something to it, 99 00:06:28,720 --> 00:06:32,040 Speaker 4: which is what we have here, the Chief Judge cannot 100 00:06:32,120 --> 00:06:37,040 Speaker 4: go ahead and decide anything. The Chief Judge must appoint 101 00:06:37,120 --> 00:06:40,479 Speaker 4: a special committee, which in this case consisted of the 102 00:06:40,560 --> 00:06:43,719 Speaker 4: Chief Judge, who under the statute must be a member 103 00:06:43,720 --> 00:06:47,560 Speaker 4: of the special committee, and two other circuit judges. So 104 00:06:47,680 --> 00:06:51,039 Speaker 4: we have a three person committee, including the Chief Judge, 105 00:06:51,080 --> 00:06:55,400 Speaker 4: whose job is to investigate the allegations in the complaint. 106 00:06:56,240 --> 00:06:58,919 Speaker 4: And that's what's going on. They actually did quite a 107 00:06:58,920 --> 00:07:01,960 Speaker 4: bit of work and came up with the quest as 108 00:07:02,000 --> 00:07:06,520 Speaker 4: it initially was for Judge Newman to undergo some testing 109 00:07:06,720 --> 00:07:10,880 Speaker 4: because of the concerns about her mental fitness, and she 110 00:07:10,960 --> 00:07:14,040 Speaker 4: has said no, she won't do that, and so that 111 00:07:14,200 --> 00:07:17,480 Speaker 4: is setting up a major test of the Act because 112 00:07:17,680 --> 00:07:22,880 Speaker 4: it has never been authoritatively decided whether circuit councils have 113 00:07:23,040 --> 00:07:27,280 Speaker 4: the authority to order a mental examination. Now, there was 114 00:07:27,320 --> 00:07:30,640 Speaker 4: a case a few years ago where the Committee on 115 00:07:30,720 --> 00:07:35,360 Speaker 4: Judicial Conducts and Disability of the Judicial Conference said that yes, 116 00:07:35,760 --> 00:07:39,800 Speaker 4: Circuit councils have that authority, but the Judicial Conference Committee 117 00:07:39,880 --> 00:07:43,360 Speaker 4: is not a court, and eventually that's going to have 118 00:07:43,400 --> 00:07:47,120 Speaker 4: to be resolved by a federal court in a proceeding 119 00:07:47,400 --> 00:07:49,600 Speaker 4: starting in the district court this. 120 00:07:49,480 --> 00:07:52,960 Speaker 2: Move to have her undergo medical testing. She's refused to 121 00:07:53,000 --> 00:07:56,400 Speaker 2: accept service of the order. So the committee has now 122 00:07:56,440 --> 00:07:59,840 Speaker 2: expanded the scope of its investigation and is now looking 123 00:07:59,880 --> 00:08:03,600 Speaker 2: at to whether Newman has failed to cooperate in violation 124 00:08:03,760 --> 00:08:07,120 Speaker 2: of the rules. So can they now go from that 125 00:08:07,320 --> 00:08:11,360 Speaker 2: point forgetting about her mental health and just look at 126 00:08:11,480 --> 00:08:14,840 Speaker 2: her failure to cooperate in violation of the rules. 127 00:08:15,440 --> 00:08:20,400 Speaker 4: Well, that's certainly a possibility, although I'm not sure that 128 00:08:20,400 --> 00:08:26,080 Speaker 4: that would give them all that they eventually decide is necessary. 129 00:08:26,400 --> 00:08:31,160 Speaker 4: In other words, an active misconduct that is failure to 130 00:08:31,240 --> 00:08:35,320 Speaker 4: cooperate would be a fairly limited act. I'm not sure 131 00:08:35,320 --> 00:08:38,080 Speaker 4: what the sanctions, what the discipline would be for that. 132 00:08:38,920 --> 00:08:42,880 Speaker 4: But if they're really concerned, as apparently they are, that 133 00:08:43,240 --> 00:08:47,920 Speaker 4: Judge Newman is mentally impaired and cannot perform her duties, 134 00:08:48,559 --> 00:08:52,520 Speaker 4: then they want to do something that will get her 135 00:08:52,640 --> 00:08:56,120 Speaker 4: off cases, because it is obviously not in the public 136 00:08:56,200 --> 00:09:01,440 Speaker 4: interest to have an impaired judge deciding case. So I'm 137 00:09:01,480 --> 00:09:06,640 Speaker 4: not sure that this new allegation will be the dispositive 138 00:09:06,720 --> 00:09:09,720 Speaker 4: one because one other things I should mention here while 139 00:09:09,720 --> 00:09:14,319 Speaker 4: we're talking about process, the new rules or relatively new 140 00:09:14,400 --> 00:09:19,360 Speaker 4: rules authorize a chief judge to ask the Chief Justice 141 00:09:19,800 --> 00:09:24,120 Speaker 4: to transfer a proceeding under the Act, and one of 142 00:09:24,160 --> 00:09:29,320 Speaker 4: the circumstances that justify a transfer is what I might 143 00:09:29,320 --> 00:09:33,640 Speaker 4: call colloquially bad blood on the court or distrust among 144 00:09:33,720 --> 00:09:37,760 Speaker 4: the judges, And there's certainly some evidence here that that 145 00:09:37,920 --> 00:09:41,200 Speaker 4: is what is going on that Judge Newman doesn't think 146 00:09:41,240 --> 00:09:45,720 Speaker 4: she'll get a fair shake from her fellow judges, who, 147 00:09:46,400 --> 00:09:49,720 Speaker 4: as she sees it, have already decided that is no 148 00:09:49,800 --> 00:09:52,400 Speaker 4: longer fit to serve. So I do think this is 149 00:09:52,440 --> 00:09:56,880 Speaker 4: an instance where transfer to another circuit could really be 150 00:09:57,080 --> 00:10:00,880 Speaker 4: very helpful. And Judge Moore is no done that up 151 00:10:00,880 --> 00:10:04,520 Speaker 4: to this point, but I think she could still do it, 152 00:10:04,679 --> 00:10:07,439 Speaker 4: and I think that might make I might call it 153 00:10:07,520 --> 00:10:09,480 Speaker 4: peaceful resolution easier. 154 00:10:10,120 --> 00:10:14,240 Speaker 2: I was looking into this and Ohio Federal Judge John 155 00:10:14,400 --> 00:10:18,480 Speaker 2: Adams was admonished by the Sixth Circuit. Two judicial panels 156 00:10:18,480 --> 00:10:22,240 Speaker 2: found he committed misconduct, found his actions to be outside 157 00:10:22,240 --> 00:10:25,920 Speaker 2: the scope of normal acceptable behavior, and ordered him to 158 00:10:25,960 --> 00:10:29,960 Speaker 2: undergo a mental health examine. Twenty sixteen. He thought back, 159 00:10:30,120 --> 00:10:31,480 Speaker 2: and he's still on the bench. 160 00:10:32,160 --> 00:10:36,120 Speaker 4: Well, Yes, that was resolved with the dropping of most 161 00:10:36,160 --> 00:10:41,560 Speaker 4: of the misconduct allegations. He actually brought suit in Federal 162 00:10:41,600 --> 00:10:48,040 Speaker 4: District court to challenge the mental examination order. That challenge 163 00:10:48,120 --> 00:10:52,640 Speaker 4: was mooted when the council withdrew most of the allegations. 164 00:10:52,960 --> 00:10:55,200 Speaker 4: So that was the case that gave rise to the 165 00:10:55,559 --> 00:11:00,880 Speaker 4: opinion by the Committee of the Judicial Conference saying that yes, 166 00:11:01,080 --> 00:11:05,400 Speaker 4: circuit councils do have that authority. That was resolved at 167 00:11:05,440 --> 00:11:08,920 Speaker 4: the Circuit conference level, at the committee level, which tells 168 00:11:09,040 --> 00:11:13,120 Speaker 4: us that if the order were to come before the 169 00:11:13,200 --> 00:11:16,120 Speaker 4: Judicial Conference Committee, the order in the Vege Newman's case, 170 00:11:16,400 --> 00:11:20,000 Speaker 4: I assume the Conference committee would reach the same result. 171 00:11:20,360 --> 00:11:23,920 Speaker 4: But the Judicial Conference Committee is not a court, and 172 00:11:24,000 --> 00:11:27,920 Speaker 4: we do not have a judicial resolution of that very 173 00:11:27,960 --> 00:11:31,600 Speaker 4: important and I think very difficult issue. The system is 174 00:11:31,640 --> 00:11:35,680 Speaker 4: set up to protect the independence of federal judges, and 175 00:11:35,760 --> 00:11:38,840 Speaker 4: yet at the same time, the judicial system has a 176 00:11:38,880 --> 00:11:43,320 Speaker 4: responsibility to assure that the judges who are deciding cases 177 00:11:43,400 --> 00:11:46,800 Speaker 4: are competent to do so. And how that's resolved and 178 00:11:46,920 --> 00:11:51,840 Speaker 4: what the statutory and constitutional answer is eventually is going 179 00:11:51,880 --> 00:11:55,800 Speaker 4: to have to come before some court for a judicial answer. 180 00:11:56,280 --> 00:12:00,240 Speaker 2: We also have the parallel instance at this time of 181 00:12:00,320 --> 00:12:04,679 Speaker 2: Senator Dianne Feinstein, which she's missed dozens of Senate votes 182 00:12:04,720 --> 00:12:07,480 Speaker 2: and refuses to step down. I think, you know, as 183 00:12:07,520 --> 00:12:10,880 Speaker 2: America ages, we may see more and more of these problems. 184 00:12:10,960 --> 00:12:14,800 Speaker 2: Should there be a mandatory retirement age for judges. 185 00:12:15,040 --> 00:12:18,920 Speaker 4: Well, you know, if we were writing a constitution today, 186 00:12:19,800 --> 00:12:23,160 Speaker 4: I'm quite sure we would not put in a provision 187 00:12:23,320 --> 00:12:27,160 Speaker 4: for a lifetime tenure for judges. I believe no state 188 00:12:27,440 --> 00:12:32,000 Speaker 4: has copied that element of the Federal Constitution, but that 189 00:12:32,160 --> 00:12:35,720 Speaker 4: is what is in the Constitution, and I think almost 190 00:12:35,880 --> 00:12:41,559 Speaker 4: all scholars, there's a minority view, but almost all scholars 191 00:12:41,720 --> 00:12:46,120 Speaker 4: believe that under the Constitution that we have. The only 192 00:12:46,160 --> 00:12:50,480 Speaker 4: way to remove an Article three judge like Judge Newman, 193 00:12:51,120 --> 00:12:54,480 Speaker 4: is through the process of impeachment by the House and 194 00:12:55,000 --> 00:12:59,480 Speaker 4: trial and removal by the Senate. There's just no other 195 00:12:59,559 --> 00:13:04,079 Speaker 4: constance tuitional process. What is not so clear is what 196 00:13:04,240 --> 00:13:09,319 Speaker 4: judicial councils can do constitutionally. There have been several instances 197 00:13:09,360 --> 00:13:14,200 Speaker 4: in the past where judicial councils have suspended judges from 198 00:13:14,240 --> 00:13:17,760 Speaker 4: hearing cases for some substantial periods of time, and a 199 00:13:17,800 --> 00:13:21,000 Speaker 4: couple of those have been challenged in court, but in 200 00:13:21,040 --> 00:13:26,000 Speaker 4: each instance, the suspensions ended by the time the court 201 00:13:26,080 --> 00:13:28,840 Speaker 4: was ready to decide the case, and so the court 202 00:13:29,040 --> 00:13:33,600 Speaker 4: never decided whether it is constitutional to do that or 203 00:13:33,640 --> 00:13:36,800 Speaker 4: to what extent I mean. I think at some point 204 00:13:37,440 --> 00:13:41,479 Speaker 4: taking cases away from a judge on a permanent basis 205 00:13:42,080 --> 00:13:45,600 Speaker 4: would be tantamount to removing that judge from office. But 206 00:13:46,320 --> 00:13:52,160 Speaker 4: temporary suspensions or suspensions limited to particular classes of cases 207 00:13:52,360 --> 00:13:55,880 Speaker 4: or cases involving particular litigants, we've had some of those. 208 00:13:56,160 --> 00:14:01,679 Speaker 4: Those are not clearly unconstitutional, but again we just don't 209 00:14:01,720 --> 00:14:05,880 Speaker 4: have any authoritative decision on where that line has been drawn. 210 00:14:06,080 --> 00:14:09,800 Speaker 4: And you're right that with an aging population, with all 211 00:14:09,880 --> 00:14:14,200 Speaker 4: these medical miracles that enable people to live for far, 212 00:14:14,440 --> 00:14:17,560 Speaker 4: far longer than was the case at the time of 213 00:14:17,600 --> 00:14:21,080 Speaker 4: the framing, we're going to see more and more situations 214 00:14:21,200 --> 00:14:24,120 Speaker 4: like this, and we can hope that judges are able 215 00:14:24,240 --> 00:14:27,160 Speaker 4: to resolve them as they resolved most of them in 216 00:14:27,200 --> 00:14:31,400 Speaker 4: the past, informally, without the need for these formal and 217 00:14:31,480 --> 00:14:36,040 Speaker 4: in this instance, very public proceedings. It's an awful way 218 00:14:36,680 --> 00:14:40,720 Speaker 4: for a distinguished judge, as Judge Newman is, to enter 219 00:14:40,720 --> 00:14:43,960 Speaker 4: her career this way in a battle over whether she's 220 00:14:44,000 --> 00:14:44,920 Speaker 4: mentally competent. 221 00:14:45,640 --> 00:14:49,480 Speaker 2: So just to clarify is the only way to remove 222 00:14:49,480 --> 00:14:52,360 Speaker 2: her from the bench to have Congress go through the 223 00:14:52,400 --> 00:14:53,520 Speaker 2: impeachment process. 224 00:14:54,080 --> 00:14:56,880 Speaker 4: Well, there's one other avenue that I have not mentioned, 225 00:14:56,920 --> 00:14:58,920 Speaker 4: and I'm not sure I've seen it mentioned in any 226 00:14:58,960 --> 00:15:01,880 Speaker 4: of the articles either. There is a statute at section 227 00:15:02,000 --> 00:15:05,840 Speaker 4: three seventy two C of the Judicial Code which authorizes 228 00:15:06,000 --> 00:15:12,480 Speaker 4: the Judicial Council to certify a judge as disabled, and 229 00:15:12,560 --> 00:15:16,360 Speaker 4: when that happens, the President can appoint a new judge 230 00:15:16,400 --> 00:15:19,120 Speaker 4: to fill the position. Now, the statute is not clear 231 00:15:19,480 --> 00:15:25,680 Speaker 4: on whether the disabled judge is effectively removed from office 232 00:15:26,080 --> 00:15:29,480 Speaker 4: or prevented from here in cases, that's the implication, and 233 00:15:29,560 --> 00:15:33,400 Speaker 4: of course if it is the functional equivalent of removal 234 00:15:33,440 --> 00:15:37,400 Speaker 4: from office, then it does raise some serious constitutional questions. 235 00:15:38,040 --> 00:15:42,040 Speaker 4: But the certification under three seventy two B is one 236 00:15:42,040 --> 00:15:45,880 Speaker 4: of the options the Council has under the nineteen eighty Act. 237 00:15:46,480 --> 00:15:48,720 Speaker 4: So I have to think that that's one of the 238 00:15:48,720 --> 00:15:52,560 Speaker 4: things that Judge Moore and her colleagues are considering as 239 00:15:52,600 --> 00:15:53,720 Speaker 4: they move forward with this. 240 00:15:54,520 --> 00:15:55,760 Speaker 2: Has that been done before? 241 00:15:56,240 --> 00:16:01,600 Speaker 4: I'm aware of one three seventy two to be certification 242 00:16:01,840 --> 00:16:06,160 Speaker 4: years ago where the judge did. It was actually before, 243 00:16:06,280 --> 00:16:10,120 Speaker 4: just before the Act was passed. The judge did not 244 00:16:10,320 --> 00:16:13,440 Speaker 4: contest there was a very odd situation because three seventy 245 00:16:13,480 --> 00:16:18,040 Speaker 4: two A provides for a voluntary disability retirement, and the 246 00:16:18,120 --> 00:16:20,760 Speaker 4: judge said, well, I'm not going to retire under three 247 00:16:20,840 --> 00:16:24,240 Speaker 4: seventy two A, but if you send the certificate to 248 00:16:24,280 --> 00:16:28,360 Speaker 4: the President, I won't challenge it. So there was no 249 00:16:29,000 --> 00:16:33,800 Speaker 4: challenge to the three seventy two B. And as far 250 00:16:33,840 --> 00:16:38,160 Speaker 4: as I'm aware, there haven't been others. If there have 251 00:16:38,240 --> 00:16:43,440 Speaker 4: been others, they were not challenged. So there is no Again, 252 00:16:43,480 --> 00:16:49,080 Speaker 4: as you say, there's no authoritative decision on how three 253 00:16:49,160 --> 00:16:55,040 Speaker 4: seventy two B does operate or should operate, or whether 254 00:16:55,680 --> 00:16:59,320 Speaker 4: it is in fact consistent with the lifetime tenure of 255 00:16:59,400 --> 00:17:00,560 Speaker 4: Article three judges. 256 00:17:00,880 --> 00:17:03,440 Speaker 2: I'm just stunned that someone at the age of ninety 257 00:17:03,440 --> 00:17:05,440 Speaker 2: five doesn't want to retire. 258 00:17:06,359 --> 00:17:09,199 Speaker 4: Now, I think most people would feel that way. You know, 259 00:17:09,280 --> 00:17:12,400 Speaker 4: that's one of the reasons why we don't see this 260 00:17:12,600 --> 00:17:17,160 Speaker 4: problem very often, because most people feel that way. Most people, 261 00:17:17,200 --> 00:17:21,159 Speaker 4: after having performed a job for twenty or thirty years 262 00:17:21,240 --> 00:17:25,680 Speaker 4: or more, are very happy, especially federal judges who can 263 00:17:26,200 --> 00:17:29,480 Speaker 4: continue to sit part time and continue to get paid 264 00:17:29,560 --> 00:17:33,280 Speaker 4: and continue to have many of the perquisistive office. Most 265 00:17:33,359 --> 00:17:37,879 Speaker 4: judges are happy to take senior status and provide the 266 00:17:37,880 --> 00:17:41,239 Speaker 4: opportunity for another judge to sit on the court. But 267 00:17:41,280 --> 00:17:46,359 Speaker 4: there's one comment that Judge Moore reported where she quotes 268 00:17:46,680 --> 00:17:50,680 Speaker 4: Judge Judge Newman is saying she refused to consider senior status, 269 00:17:50,720 --> 00:17:53,480 Speaker 4: saying that she was the only person who cared about 270 00:17:53,480 --> 00:17:58,359 Speaker 4: the patent system and innovation policy. So that seems to 271 00:17:58,400 --> 00:18:01,159 Speaker 4: be what is driving Judge Knew. She thinks that of 272 00:18:01,200 --> 00:18:05,200 Speaker 4: all the colleagues on the Federal Circuit there, she's the 273 00:18:05,200 --> 00:18:08,679 Speaker 4: only one who, really, as she said, cares about the 274 00:18:08,720 --> 00:18:11,760 Speaker 4: patent system, and that seems to be driving her to 275 00:18:11,800 --> 00:18:16,440 Speaker 4: this recalcitrance and her unwillingness to do what, as you suggest, 276 00:18:16,560 --> 00:18:19,880 Speaker 4: most judges would have done a long time ago. Take 277 00:18:19,960 --> 00:18:27,480 Speaker 4: senior status and enjoy some leisure along with the opportunity 278 00:18:27,520 --> 00:18:28,680 Speaker 4: to decide cases. 279 00:18:29,119 --> 00:18:32,800 Speaker 2: Thanks so much, appreciate your being here, bes Professor Arthur 280 00:18:32,800 --> 00:18:37,240 Speaker 2: Hellman of the University of Pittsburgh Law School. The Supreme 281 00:18:37,280 --> 00:18:40,320 Speaker 2: Court justice has appeared to favor a broad view of 282 00:18:40,359 --> 00:18:44,520 Speaker 2: when the government can deport legal immigrants convicted of certain crimes, 283 00:18:44,920 --> 00:18:47,400 Speaker 2: including many who have been in the US for decades. 284 00:18:47,920 --> 00:18:51,160 Speaker 2: The question and argument centered on what types of crimes 285 00:18:51,240 --> 00:18:55,400 Speaker 2: related to obstruction of justice count as an aggravated felony 286 00:18:55,440 --> 00:18:59,119 Speaker 2: that can trigger deportation, and specifically whether there must be 287 00:18:59,160 --> 00:19:03,280 Speaker 2: an active invents investigation or proceeding to qualify joining Me's 288 00:19:03,280 --> 00:19:07,520 Speaker 2: immigration law. Expertly on Fresco, a partnered Honden Knight tell 289 00:19:07,600 --> 00:19:13,520 Speaker 2: us about these two defendants in this case, Well, there. 290 00:19:13,359 --> 00:19:16,520 Speaker 1: Were two defendants with two separate crimes that had their 291 00:19:16,560 --> 00:19:21,800 Speaker 1: cases consolidated before the court. The defendant from California, whose 292 00:19:21,880 --> 00:19:27,480 Speaker 1: name was Cordero Garcia, was basically convicted of a sexual 293 00:19:27,560 --> 00:19:32,320 Speaker 1: assault based crime, and what they said was in addition, 294 00:19:32,400 --> 00:19:36,080 Speaker 1: he had a conviction of dissuading the witness from reporting 295 00:19:36,160 --> 00:19:39,240 Speaker 1: the crime, and that was the conviction that the government 296 00:19:39,359 --> 00:19:43,800 Speaker 1: was using to accomplish his deportation under the grounds of 297 00:19:43,880 --> 00:19:47,000 Speaker 1: it being an obstruction of justice offense. And the other person, 298 00:19:47,119 --> 00:19:51,840 Speaker 1: Jean Francois Pougin, was someone who fled guilty in Virginia 299 00:19:51,960 --> 00:19:56,520 Speaker 1: to being an accessory after the fact of obstruction of justice. 300 00:19:57,119 --> 00:20:01,679 Speaker 1: And there they really aren't clear at all in the 301 00:20:01,720 --> 00:20:04,840 Speaker 1: record as to what he was obstructing as an accessory 302 00:20:04,920 --> 00:20:09,680 Speaker 1: after the fact, but it was basically trying to clean 303 00:20:09,800 --> 00:20:13,280 Speaker 1: up somebody else's crime in that situation, and so from 304 00:20:13,280 --> 00:20:17,520 Speaker 1: that standpoint, his was a little bit more sympathetic factually 305 00:20:18,200 --> 00:20:21,640 Speaker 1: than the other one, mister Cordero, who had the situation 306 00:20:21,800 --> 00:20:22,960 Speaker 1: with the sexual assault. 307 00:20:23,200 --> 00:20:26,080 Speaker 2: So leam just a question before we get to the 308 00:20:26,119 --> 00:20:30,159 Speaker 2: main issue. Couldn't a judge order someone removed from the 309 00:20:30,280 --> 00:20:34,439 Speaker 2: United States just on the basis of any crime that 310 00:20:34,440 --> 00:20:36,800 Speaker 2: they have committed? I mean, does it have to be 311 00:20:36,840 --> 00:20:38,080 Speaker 2: a specific crime? 312 00:20:38,520 --> 00:20:40,480 Speaker 1: So here's the interest to that question. It's a two 313 00:20:40,480 --> 00:20:43,680 Speaker 1: part answer. Yes, is the first part. You can deport 314 00:20:43,800 --> 00:20:49,320 Speaker 1: someone pretty much over almost any crime. But if a 315 00:20:49,320 --> 00:20:52,959 Speaker 1: crime is known as an aggravated felony, then there's no 316 00:20:53,080 --> 00:20:56,480 Speaker 1: relief from removal that you can get. There's relief from 317 00:20:56,520 --> 00:21:00,520 Speaker 1: removal you can apply for depending on other crimes that 318 00:21:00,800 --> 00:21:04,000 Speaker 1: you've been convicted of, less serious crimes than what are 319 00:21:04,040 --> 00:21:08,560 Speaker 1: known as aggravated felony. Then you can apply for different 320 00:21:08,640 --> 00:21:12,399 Speaker 1: kinds of release. There's one called cancelation of removal. There's 321 00:21:12,440 --> 00:21:15,320 Speaker 1: also you can apply for asylum instead of being banned 322 00:21:15,320 --> 00:21:18,440 Speaker 1: from asylum, where you'd have to actually prove that you're 323 00:21:18,480 --> 00:21:20,320 Speaker 1: going to get tortured. Is the only way you could 324 00:21:20,320 --> 00:21:23,879 Speaker 1: say that wouldn't necessarily be the case if you weren't 325 00:21:23,880 --> 00:21:26,679 Speaker 1: an aggravated fellas. So it actually has a lot of 326 00:21:26,720 --> 00:21:31,399 Speaker 1: serious consequences there, and that is why the government wants 327 00:21:31,440 --> 00:21:33,840 Speaker 1: to use that tool because then it's an open and 328 00:21:33,920 --> 00:21:37,280 Speaker 1: just case and they can support you. But it's obviously 329 00:21:37,320 --> 00:21:40,359 Speaker 1: why the foreign nationals don't want to be called aggravated fellas. 330 00:21:40,480 --> 00:21:43,560 Speaker 2: So just tell us about this question of an offense 331 00:21:43,640 --> 00:21:46,080 Speaker 2: relating to obstruction of justice. 332 00:21:46,400 --> 00:21:51,040 Speaker 1: Sure, the Immigration and Nationality Act lays out a bunch 333 00:21:51,080 --> 00:21:55,680 Speaker 1: of different criteria for what you can be deported for, 334 00:21:56,440 --> 00:22:00,320 Speaker 1: and the worst criteria is that you're someone who been 335 00:22:00,359 --> 00:22:04,200 Speaker 1: convicted of an aggravated felony, and it actually lays out 336 00:22:04,720 --> 00:22:09,879 Speaker 1: an alphabet soup full of aggravated feladies a b cd E. 337 00:22:10,280 --> 00:22:13,399 Speaker 1: It keeps giving crime after crime after crime after crime, 338 00:22:13,600 --> 00:22:16,560 Speaker 1: and when you finally get the letter s you get 339 00:22:16,600 --> 00:22:19,880 Speaker 1: to this letter of the statutes that says an offense 340 00:22:20,080 --> 00:22:24,560 Speaker 1: relating to obstruction of justice And so the question is 341 00:22:24,600 --> 00:22:28,120 Speaker 1: what does that mean? And Congress, they really do need 342 00:22:28,160 --> 00:22:31,879 Speaker 1: to clean up this whole system of how deportation works 343 00:22:31,960 --> 00:22:35,119 Speaker 1: because what they did was when they wrote these statutes 344 00:22:35,200 --> 00:22:38,000 Speaker 1: is they were trying to scoop up federal and state 345 00:22:38,080 --> 00:22:42,240 Speaker 1: crimes generally, and so they didn't have time to actually 346 00:22:42,440 --> 00:22:45,720 Speaker 1: write down in the statues, here are all the crimes 347 00:22:45,800 --> 00:22:49,200 Speaker 1: we want to include in this basket. They just kind 348 00:22:49,200 --> 00:22:52,440 Speaker 1: of gave these general descriptions but said, everybody will figure 349 00:22:52,480 --> 00:22:55,040 Speaker 1: this out later. It's not for us to be figuring 350 00:22:55,080 --> 00:22:57,840 Speaker 1: this out here. And so now the court is grappled 351 00:22:57,880 --> 00:23:02,199 Speaker 1: with this question what is an offense relating to obstruction 352 00:23:02,359 --> 00:23:05,920 Speaker 1: of justice? And so what the court was actually asking 353 00:23:06,080 --> 00:23:08,639 Speaker 1: in this case in terms of what it was trying 354 00:23:08,680 --> 00:23:13,919 Speaker 1: to resolve, is the simple question of does a pending proceeding, 355 00:23:14,760 --> 00:23:18,320 Speaker 1: either a judicial proceeding with what one of the foreign 356 00:23:18,400 --> 00:23:21,080 Speaker 1: nationals want is they said, there has actually be a 357 00:23:21,480 --> 00:23:26,920 Speaker 1: pending judicial proceeding, or does at least a pending investigation 358 00:23:27,160 --> 00:23:31,600 Speaker 1: has to be occurring in order for someone to be 359 00:23:32,200 --> 00:23:36,119 Speaker 1: convicted of an offense related to obstruction of justice? Or, 360 00:23:36,600 --> 00:23:40,119 Speaker 1: as the government was saying, if you were even blocking 361 00:23:40,160 --> 00:23:44,919 Speaker 1: an investigation from beginning, or if after the fact you 362 00:23:45,000 --> 00:23:49,000 Speaker 1: are still obstructing either of those two also counts as 363 00:23:49,040 --> 00:23:52,800 Speaker 1: obstruction of justice even though there wasn't a pending or 364 00:23:52,880 --> 00:23:59,400 Speaker 1: ongoing investigation or judicial proceeding. So that was the argument 365 00:23:59,480 --> 00:24:02,160 Speaker 1: in this case is what do you have to do 366 00:24:02,400 --> 00:24:06,280 Speaker 1: to be deported as an aggravated felon? In this obstruction 367 00:24:06,359 --> 00:24:09,679 Speaker 1: of justice category, you actually have to be obstructing something 368 00:24:09,720 --> 00:24:13,400 Speaker 1: that exists currently. Or could you be obstructing even an 369 00:24:13,440 --> 00:24:16,639 Speaker 1: investigation from even starting in the first place and that 370 00:24:16,680 --> 00:24:18,840 Speaker 1: would be enough to deport you. Or could you be 371 00:24:19,119 --> 00:24:22,480 Speaker 1: obstructing after the facts as an accessory after the fact, 372 00:24:22,880 --> 00:24:25,320 Speaker 1: and that would also be enough to deport you as well. 373 00:24:25,560 --> 00:24:28,280 Speaker 2: And several appellate courts were split on. 374 00:24:28,320 --> 00:24:33,439 Speaker 1: This Yes, correct. The Ninth Circuit ruled that yes, you 375 00:24:33,520 --> 00:24:37,439 Speaker 1: needed an ongoing proceeding in order to actually have this 376 00:24:37,560 --> 00:24:40,919 Speaker 1: obstruction of justice, and the Fourth Circuit defers to the 377 00:24:40,920 --> 00:24:43,840 Speaker 1: Board of Immigration Appeal but said, you don't need an 378 00:24:43,880 --> 00:24:48,119 Speaker 1: ongoing investigation or proceeding in order to be convicted of 379 00:24:48,119 --> 00:24:51,360 Speaker 1: an aggravated felony, that that would be still considered obstruction 380 00:24:51,440 --> 00:24:55,640 Speaker 1: of justice if it was either trying to block an 381 00:24:56,240 --> 00:24:59,760 Speaker 1: investigation from beginning or it was trying to conceal something 382 00:25:00,160 --> 00:25:00,960 Speaker 1: after the fact. 383 00:25:01,640 --> 00:25:05,200 Speaker 2: So during the oral arguments, were the justices split on 384 00:25:05,400 --> 00:25:06,640 Speaker 2: ideological lines. 385 00:25:07,160 --> 00:25:10,200 Speaker 1: No, they were all struggling with trying to figure out 386 00:25:10,400 --> 00:25:13,639 Speaker 1: how to grapple with these issues, and I mean this 387 00:25:13,760 --> 00:25:17,480 Speaker 1: has been one area in general where you've seen a 388 00:25:17,600 --> 00:25:21,920 Speaker 1: split between Justice Thomas and Justice Alito, where Justice Alito 389 00:25:22,040 --> 00:25:26,040 Speaker 1: is very pro government enforcement and he usually sides with 390 00:25:26,119 --> 00:25:30,399 Speaker 1: the government in these deportation cases, and Justice Thomas and 391 00:25:30,520 --> 00:25:34,359 Speaker 1: in this case, Justice Roberts also were struggling. And Justice 392 00:25:34,359 --> 00:25:38,119 Speaker 1: Thomas traditionally struggles with these issues of what does a 393 00:25:38,160 --> 00:25:41,520 Speaker 1: conviction mean and how many collateral results can you get 394 00:25:41,760 --> 00:25:46,360 Speaker 1: from a conviction where a person isn't it really understanding 395 00:25:46,400 --> 00:25:49,440 Speaker 1: the nature of everything that they're bleeding guilty to at 396 00:25:49,480 --> 00:25:52,000 Speaker 1: the time that they're pleading guilty to it. And so 397 00:25:52,200 --> 00:25:56,679 Speaker 1: from that perspective, Justice Thomas has ruled traditionally in several 398 00:25:56,760 --> 00:26:00,159 Speaker 1: cases in favor of foreign national in these contexts. But 399 00:26:00,280 --> 00:26:03,879 Speaker 1: both Justice Roberts and Justice Thomas were struggling because they 400 00:26:03,880 --> 00:26:07,320 Speaker 1: didn't like either argument that was being made. They did 401 00:26:07,359 --> 00:26:11,560 Speaker 1: not like the argument from the foreign nationals because they 402 00:26:11,640 --> 00:26:15,679 Speaker 1: could come up with many of different analogies of people 403 00:26:15,800 --> 00:26:21,760 Speaker 1: obstructing investigation before they started. That would be the kind 404 00:26:21,760 --> 00:26:25,120 Speaker 1: of thing that Congress would want to stop. But they 405 00:26:25,160 --> 00:26:29,000 Speaker 1: also didn't want this to get out of hand and say, 406 00:26:29,040 --> 00:26:30,960 Speaker 1: at the end of the day, that you could basically 407 00:26:31,040 --> 00:26:34,520 Speaker 1: call anything obstruction even if there was no proof that 408 00:26:34,560 --> 00:26:36,960 Speaker 1: an investigation was going to begin, or should have began, 409 00:26:37,640 --> 00:26:41,480 Speaker 1: or anything else. And so from their perspective, the government 410 00:26:41,560 --> 00:26:44,200 Speaker 1: they thought was way too broad, but they didn't think 411 00:26:44,320 --> 00:26:48,040 Speaker 1: that the foreign nationals were providing a sufficient limiting principle 412 00:26:48,520 --> 00:26:51,280 Speaker 1: to the fact that they didn't think it always had 413 00:26:51,359 --> 00:26:56,199 Speaker 1: to be a pending or ongoing proceeding or investigation, that 414 00:26:56,440 --> 00:26:59,560 Speaker 1: is what triggered the obstruction of justice penalty. And then 415 00:27:00,160 --> 00:27:02,640 Speaker 1: Roberts had an issue with the fact that the way 416 00:27:02,720 --> 00:27:07,119 Speaker 1: the statute is written says not obstruction of justice, but 417 00:27:07,240 --> 00:27:11,160 Speaker 1: an offense relating to obstruction of justice. He thought that 418 00:27:11,240 --> 00:27:15,040 Speaker 1: must mean that it's broader than just obstruction of justice. 419 00:27:15,560 --> 00:27:17,840 Speaker 1: And so this is the issue that the justices were 420 00:27:17,840 --> 00:27:19,400 Speaker 1: grappulling to switch to. 421 00:27:19,359 --> 00:27:23,080 Speaker 2: Other immigration matters. Living in New York City, you know, 422 00:27:23,280 --> 00:27:25,639 Speaker 2: there was a time when we were seeing Texas was 423 00:27:25,680 --> 00:27:28,879 Speaker 2: buzzing up migrants. I haven't heard of that for a while. 424 00:27:29,480 --> 00:27:32,119 Speaker 1: The reason you haven't heard about this is because the 425 00:27:32,240 --> 00:27:36,760 Speaker 1: three legay school approach that the Biden administration implemented at 426 00:27:36,760 --> 00:27:39,919 Speaker 1: the beginning of the year, at least for now, is 427 00:27:40,000 --> 00:27:43,119 Speaker 1: actually holding firm. And what do I mean by that. 428 00:27:43,680 --> 00:27:47,160 Speaker 1: I mean that they wanted to do three things. Number one, 429 00:27:47,480 --> 00:27:50,400 Speaker 1: say that anybody who was coming to the border had 430 00:27:50,440 --> 00:27:54,240 Speaker 1: to come through the ports of entry. Number two, don't 431 00:27:54,240 --> 00:27:56,040 Speaker 1: even come to the ports of entry if you don't 432 00:27:56,080 --> 00:27:59,520 Speaker 1: have to apply for a legal pathway to enter the 433 00:27:59,600 --> 00:28:04,480 Speaker 1: United State State, which is this program where thirty thousand Venezuelan's, Cubans, 434 00:28:04,560 --> 00:28:08,280 Speaker 1: Theicaraguans and Asians can apply to be let in each month. 435 00:28:08,720 --> 00:28:10,879 Speaker 1: And Third, if you do try to come in between 436 00:28:10,920 --> 00:28:14,399 Speaker 1: the border, we will just exclude you under Title forty 437 00:28:14,400 --> 00:28:17,040 Speaker 1: two and tell you make an appointment to come through 438 00:28:17,040 --> 00:28:20,879 Speaker 1: the ports of entry. That program has actually led to 439 00:28:21,000 --> 00:28:24,399 Speaker 1: far fewer people coming across the border in between the 440 00:28:24,400 --> 00:28:26,760 Speaker 1: ports of entry, which were who the people were being 441 00:28:26,840 --> 00:28:29,800 Speaker 1: buzzed to New York and to other places in the Northeast. 442 00:28:30,000 --> 00:28:32,639 Speaker 1: Now what's going to happen this summer is that parole 443 00:28:32,720 --> 00:28:35,960 Speaker 1: program is taken away, and now that Title forty two 444 00:28:36,080 --> 00:28:38,680 Speaker 1: is taken away, you know, we're going to be very 445 00:28:38,720 --> 00:28:41,240 Speaker 1: interested to see what will happen in the upcoming months. 446 00:28:41,960 --> 00:28:44,760 Speaker 1: And this is where the Biden administration is going to 447 00:28:44,760 --> 00:28:48,600 Speaker 1: have a significant challenge moving forward. But at least for 448 00:28:48,840 --> 00:28:51,800 Speaker 1: the first few months of the year. The Biden administration 449 00:28:51,880 --> 00:28:54,000 Speaker 1: has a pretty strong argument that if they had just 450 00:28:54,120 --> 00:28:57,360 Speaker 1: been allowed to implement the system the way they were 451 00:28:57,400 --> 00:29:00,440 Speaker 1: trying to implement it, you wouldn't be seen being this 452 00:29:00,560 --> 00:29:03,480 Speaker 1: need for bussing or anything else because the numbers wouldn't 453 00:29:03,480 --> 00:29:06,760 Speaker 1: be as substantial as they were previous to this three 454 00:29:06,800 --> 00:29:07,560 Speaker 1: pronged approach. 455 00:29:07,880 --> 00:29:10,200 Speaker 2: And what's the status of Title forty two. 456 00:29:10,720 --> 00:29:14,920 Speaker 1: Well, Title forty two is gone now because of the 457 00:29:14,920 --> 00:29:18,640 Speaker 1: situation with the COVID nineteen national Emergency being ended. When 458 00:29:18,680 --> 00:29:22,960 Speaker 1: Biden signs that bill ending the COVID nineteen emergency, hence 459 00:29:23,000 --> 00:29:26,600 Speaker 1: the title forty two authority that's based on the COVID emergency. 460 00:29:26,880 --> 00:29:29,520 Speaker 1: And so what the Biden administration is trying to transfer 461 00:29:29,640 --> 00:29:33,640 Speaker 1: to now is this thing called an asylum ban, which 462 00:29:33,680 --> 00:29:37,000 Speaker 1: will say that if you entered the United States through 463 00:29:37,040 --> 00:29:41,360 Speaker 1: any other country, which obviously everybody does, they answer through Mexico, 464 00:29:42,080 --> 00:29:45,120 Speaker 1: you had to apply in any place where you could 465 00:29:45,120 --> 00:29:47,360 Speaker 1: have applied prior to the United States. So the only 466 00:29:47,400 --> 00:29:50,200 Speaker 1: people who will be exempt from this requirement will be 467 00:29:50,280 --> 00:29:53,840 Speaker 1: Mexican who obviously can't apply for asylum in Mexico. But 468 00:29:53,960 --> 00:29:56,960 Speaker 1: everyone else who enters through Mexico will have been required 469 00:29:57,280 --> 00:30:01,080 Speaker 1: to have applied in Mexico before during in the United States, 470 00:30:01,560 --> 00:30:05,360 Speaker 1: or alternatively, they could use one of the legal pathways 471 00:30:05,440 --> 00:30:09,040 Speaker 1: unless that gets enjoined, or alternatively they can do one 472 00:30:09,040 --> 00:30:12,560 Speaker 1: of the orderly appointments for asylum at supports of entry. 473 00:30:12,600 --> 00:30:15,120 Speaker 1: But if you try to go in between, the idea 474 00:30:15,240 --> 00:30:18,040 Speaker 1: is that you will be banned from doing that, and 475 00:30:18,120 --> 00:30:20,960 Speaker 1: then the question will be, Okay, that's going to go 476 00:30:21,000 --> 00:30:24,440 Speaker 1: in litigation and will that ban be allowed to survive. 477 00:30:25,000 --> 00:30:28,160 Speaker 1: The Trump administration had tried a similar ban and look 478 00:30:28,320 --> 00:30:31,440 Speaker 1: like it was going to be successful ultimately, but we 479 00:30:31,520 --> 00:30:35,480 Speaker 1: didn't get to the final resolution of that because the 480 00:30:35,520 --> 00:30:39,480 Speaker 1: Trump administration ended before those cases get to the Supreme Court. 481 00:30:39,640 --> 00:30:41,800 Speaker 2: So this is one case of the Supreme Court. But 482 00:30:41,880 --> 00:30:44,480 Speaker 2: there are some other immigration cases coming up, so tell 483 00:30:44,560 --> 00:30:45,240 Speaker 2: us about. 484 00:30:44,960 --> 00:30:47,320 Speaker 1: Those down the road. I think you're going to see 485 00:30:47,360 --> 00:30:50,200 Speaker 1: three or four very interesting cases coming up down the road, 486 00:30:50,200 --> 00:30:52,640 Speaker 1: which I think are the really important ones to monitor. 487 00:30:53,080 --> 00:30:55,280 Speaker 1: The first one will be on this parole program that 488 00:30:55,320 --> 00:30:58,920 Speaker 1: the Biden administration first did with Ukrainians and even with 489 00:30:59,040 --> 00:31:02,360 Speaker 1: Ukrainians as challenge, but is now being challenged now that 490 00:31:02,400 --> 00:31:05,760 Speaker 1: it's been moved to Venezuelan, the Garaguans, Cubans, and Haitians. 491 00:31:05,840 --> 00:31:08,800 Speaker 1: Is that legal Does the administration have the authority to 492 00:31:08,880 --> 00:31:12,920 Speaker 1: parole people into the country based on specific criteria and 493 00:31:13,000 --> 00:31:16,280 Speaker 1: in such significant numbers. So that's the first challenge that 494 00:31:16,360 --> 00:31:17,920 Speaker 1: that's going to be coming out of Texas, and I 495 00:31:17,920 --> 00:31:19,960 Speaker 1: think that one will get to the Supreme Court. The 496 00:31:20,040 --> 00:31:22,960 Speaker 1: second one will be on this asylum ban. Does the 497 00:31:23,320 --> 00:31:26,400 Speaker 1: administration have the ability to ban people from applying for 498 00:31:26,440 --> 00:31:29,520 Speaker 1: asylum if they enter in between the ports of entry? 499 00:31:29,760 --> 00:31:33,080 Speaker 1: And then third, you're likely to see an interesting challenge 500 00:31:33,080 --> 00:31:36,640 Speaker 1: if Florida passes the type of laws which will basically 501 00:31:36,680 --> 00:31:39,760 Speaker 1: be challenged under the old Arizona Supreme Court case in 502 00:31:39,800 --> 00:31:45,040 Speaker 1: twenty twelve about states punishing employers for hiring of documented 503 00:31:45,040 --> 00:31:49,640 Speaker 1: people and for punishing everyday citizens for helping people without status. 504 00:31:49,680 --> 00:31:54,240 Speaker 1: Those kinds of things will retest Arizona, and the court 505 00:31:54,280 --> 00:31:57,800 Speaker 1: has changed since the Arizona Court of twenty twelve, And 506 00:31:57,840 --> 00:32:00,840 Speaker 1: so the question is will the decision in ariz twenty 507 00:32:00,880 --> 00:32:05,320 Speaker 1: twelve actually stand or will just do Supreme Court say, 508 00:32:05,400 --> 00:32:08,640 Speaker 1: you know what states actually can supplement and add to 509 00:32:08,720 --> 00:32:11,840 Speaker 1: immigration law enforcement? And so I think those are the 510 00:32:11,840 --> 00:32:14,040 Speaker 1: three interesting cases to WATUS moving forward. 511 00:32:14,280 --> 00:32:17,080 Speaker 2: That's Leon Fresco of Honden Knight. This is Bloomberg