1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloombird Law, with June Bresso from Bloomberg Radio 2 00:00:10,800 --> 00:00:13,960 Speaker 1: turning out of arguments on Monday over the football coach 3 00:00:14,000 --> 00:00:16,919 Speaker 1: who lost his job at a public high school outside 4 00:00:16,960 --> 00:00:20,959 Speaker 1: Seattle after repeatedly taking a knee alongside his players on 5 00:00:21,000 --> 00:00:24,759 Speaker 1: the fifty yard line after games. The coach, Joe Kennedy, 6 00:00:24,840 --> 00:00:29,000 Speaker 1: said the school district violated his constitutional rights by punishing 7 00:00:29,080 --> 00:00:32,960 Speaker 1: his private religious expression, But the district argued that Kennedy's 8 00:00:32,960 --> 00:00:37,200 Speaker 1: prayers were becoming a community spectacle and left players feeling 9 00:00:37,280 --> 00:00:41,360 Speaker 1: pressured to join using hypotheticals, the justice is struggled to 10 00:00:41,400 --> 00:00:44,360 Speaker 1: find the proper line to draw to balance the First 11 00:00:44,360 --> 00:00:47,880 Speaker 1: Amendment rights of teachers and coaches with the school's need 12 00:00:47,960 --> 00:00:51,440 Speaker 1: to protect students. Here are the Chief Justice and Justices 13 00:00:51,520 --> 00:00:56,160 Speaker 1: Amy Coney, Barrett and Brett Kavanaugh. What if the activity 14 00:00:56,760 --> 00:01:00,480 Speaker 1: on the field did not consist of this kneeling down briefly, 15 00:01:00,760 --> 00:01:05,639 Speaker 1: but something more um extensive, standing up on the fifty 16 00:01:05,720 --> 00:01:12,640 Speaker 1: yard line, arms outstretched, uh engaging in audible prayer. Let's 17 00:01:12,640 --> 00:01:16,040 Speaker 1: say he says the our Father with arms outstretched, and 18 00:01:16,240 --> 00:01:18,400 Speaker 1: it starts causing a lot of havoc in the stand. 19 00:01:19,760 --> 00:01:23,080 Speaker 1: Your coach does the sign of the Cross right before 20 00:01:23,120 --> 00:01:26,720 Speaker 1: the game? Uh is that could a school fire the 21 00:01:26,720 --> 00:01:28,800 Speaker 1: coach for the sign of the cross right before the game. 22 00:01:29,280 --> 00:01:33,160 Speaker 1: Some of the justices like kavan On Elena Kagan, express 23 00:01:33,280 --> 00:01:37,400 Speaker 1: concern that players might feel coerced to participate in the prayer. 24 00:01:37,760 --> 00:01:40,600 Speaker 1: If you look at our prayer cases, the idea of 25 00:01:40,720 --> 00:01:44,720 Speaker 1: why the school can discipline him is that that puts 26 00:01:44,760 --> 00:01:49,000 Speaker 1: a kind of undoe pressure, a kind of coercion on 27 00:01:49,280 --> 00:01:53,200 Speaker 1: students to participate in with the des activities when they 28 00:01:53,240 --> 00:01:55,800 Speaker 1: may not wish to, when their religion is different, or 29 00:01:55,920 --> 00:02:00,520 Speaker 1: when they have no religion. Here, the suspicion by parents 30 00:02:00,600 --> 00:02:05,200 Speaker 1: that the reason Johnny's starting and you're not is he 31 00:02:05,800 --> 00:02:10,480 Speaker 1: was part of the prayer circle. My guest is Richard Garnett, 32 00:02:10,600 --> 00:02:14,240 Speaker 1: a professor at Notre Dame Law School. That's the issue here, Rick, 33 00:02:14,960 --> 00:02:18,280 Speaker 1: So what's the issue here in the Kennedy case is 34 00:02:18,600 --> 00:02:21,360 Speaker 1: whether an order that was given to coach Kennedy that 35 00:02:21,440 --> 00:02:25,480 Speaker 1: he had to refrain from any religious expression or activity 36 00:02:25,480 --> 00:02:28,720 Speaker 1: in view of students, whether that order was consistent with 37 00:02:28,840 --> 00:02:31,600 Speaker 1: his First Amendment rights at the time the order was given. 38 00:02:31,800 --> 00:02:34,920 Speaker 1: The record is pretty clear that the school district was 39 00:02:34,960 --> 00:02:37,920 Speaker 1: of the view that they had to require Coach Kennedy 40 00:02:37,960 --> 00:02:41,600 Speaker 1: to stop engaging in this publicly visible prayer because the 41 00:02:41,680 --> 00:02:45,200 Speaker 1: Establishment Clause required it. That is, the districts thought that 42 00:02:45,520 --> 00:02:48,760 Speaker 1: the separation of church and state required the district to 43 00:02:48,840 --> 00:02:52,200 Speaker 1: prevent the coach from engaging in this public prayer. Now, 44 00:02:52,240 --> 00:02:55,000 Speaker 1: Coach Kennedy says, on the other hand, you're misunderstanding the 45 00:02:55,040 --> 00:02:58,440 Speaker 1: separation of church and state, and you're violating my First 46 00:02:58,480 --> 00:03:01,919 Speaker 1: Amendment rights to engage aging religious expression. I'm a citizen 47 00:03:02,000 --> 00:03:03,880 Speaker 1: like anybody else. I'm allowed to pray in public if 48 00:03:03,880 --> 00:03:06,160 Speaker 1: I want to, And so at the oral arguments it 49 00:03:06,240 --> 00:03:08,480 Speaker 1: was interesting because I think one of the challenges for 50 00:03:08,520 --> 00:03:12,320 Speaker 1: the justices was that the litigation position of the school 51 00:03:12,320 --> 00:03:15,120 Speaker 1: district seems to have changed. So at the early stages 52 00:03:15,480 --> 00:03:18,280 Speaker 1: of this case, their position was, look, we had to 53 00:03:18,320 --> 00:03:21,880 Speaker 1: require Coach Kennedy to stop praying, otherwise people would have 54 00:03:21,880 --> 00:03:24,880 Speaker 1: gotten the wrong idea that we were sponsoring the prayer 55 00:03:24,960 --> 00:03:27,520 Speaker 1: and that that would have been an Establishment Clause violation. 56 00:03:27,680 --> 00:03:31,440 Speaker 1: And in the Supreme Court yesterday during arguments, though the 57 00:03:31,480 --> 00:03:34,079 Speaker 1: district's position seems to have changed too well. The reason 58 00:03:34,160 --> 00:03:36,160 Speaker 1: we had to tell coach Kennedy to stop this is 59 00:03:36,200 --> 00:03:39,960 Speaker 1: that he was coercing his players into participating in a prayer, 60 00:03:40,000 --> 00:03:43,640 Speaker 1: And the Constitution obviously doesn't permit government officials to course 61 00:03:43,720 --> 00:03:46,640 Speaker 1: anybody to participate in religious activities. So I think part 62 00:03:46,680 --> 00:03:49,960 Speaker 1: of the oral arguments was the justices trying to sort 63 00:03:50,000 --> 00:03:53,320 Speaker 1: out what exactly the district's position is and then to 64 00:03:53,480 --> 00:03:58,080 Speaker 1: evaluate the competing argument. Was this about the coach offering 65 00:03:58,440 --> 00:04:03,320 Speaker 1: up silent prayer on the field after the games, or 66 00:04:03,520 --> 00:04:07,640 Speaker 1: was it about the coach offering a prayer surrounded by 67 00:04:07,960 --> 00:04:11,960 Speaker 1: players after the game. It's a great question, and the 68 00:04:12,000 --> 00:04:15,760 Speaker 1: answer is it's not entirely clear, and the justices spent 69 00:04:15,840 --> 00:04:17,360 Speaker 1: a lot of the time with the oral argument trying 70 00:04:17,400 --> 00:04:19,039 Speaker 1: to dig into the facts. So what appears to be 71 00:04:19,080 --> 00:04:23,200 Speaker 1: the case is that over time, the coach's prayer and 72 00:04:23,320 --> 00:04:26,640 Speaker 1: the kind of surrounding context for the prayer change, and 73 00:04:26,720 --> 00:04:30,279 Speaker 1: also the district's stance changed. The lawyer for the coach 74 00:04:30,720 --> 00:04:33,760 Speaker 1: was urging the justices to focus on the order that 75 00:04:33,880 --> 00:04:36,120 Speaker 1: was given to the coach, that that's what's relevant here, 76 00:04:36,240 --> 00:04:39,760 Speaker 1: and the order said that he wasn't permitted to engage 77 00:04:39,960 --> 00:04:43,920 Speaker 1: in public religious expression if it was viewable by students. 78 00:04:44,000 --> 00:04:46,200 Speaker 1: In a sense, what the lawyer for coach Kennedy is 79 00:04:46,200 --> 00:04:49,440 Speaker 1: suggesting the justices need to focus on that order and 80 00:04:49,520 --> 00:04:52,760 Speaker 1: not on what might have happened later as media attention 81 00:04:52,880 --> 00:04:55,400 Speaker 1: grew and as some people from the stands or other 82 00:04:55,440 --> 00:04:58,000 Speaker 1: players for the teams started joining and so on, the 83 00:04:58,040 --> 00:05:01,000 Speaker 1: lawyer for the school district wanted to adjusted the justices 84 00:05:01,120 --> 00:05:03,640 Speaker 1: that they should consider not just the order that was 85 00:05:03,680 --> 00:05:05,880 Speaker 1: given to the coach, but they should consider all of 86 00:05:05,920 --> 00:05:09,680 Speaker 1: the reactions that these third parties had to the controversy 87 00:05:09,760 --> 00:05:11,800 Speaker 1: as it developed. It's a common problem in some of 88 00:05:11,800 --> 00:05:15,679 Speaker 1: these cases involving religious expression and religious symbols is that 89 00:05:15,800 --> 00:05:18,760 Speaker 1: the facts are fluid and they kind of evolve, and 90 00:05:18,920 --> 00:05:22,000 Speaker 1: it will be interesting to see how the justices pinned 91 00:05:22,040 --> 00:05:25,200 Speaker 1: down what it is they're actually evaluating. But as I 92 00:05:25,240 --> 00:05:28,000 Speaker 1: saw it, and I think a majority of the justices 93 00:05:28,000 --> 00:05:31,000 Speaker 1: saw it as well, it appeared that the district again 94 00:05:31,120 --> 00:05:34,400 Speaker 1: had shifted its position from what it originally relied on 95 00:05:34,920 --> 00:05:37,280 Speaker 1: when it disciplined the coach Kennedy is to what it's 96 00:05:37,320 --> 00:05:40,520 Speaker 1: arguing now in the court. How would focusing on that 97 00:05:40,680 --> 00:05:44,640 Speaker 1: order helped the coach's case. This is an employment discrimination case, 98 00:05:44,800 --> 00:05:48,000 Speaker 1: and what coach Kennedy is challenging is the fact that 99 00:05:48,040 --> 00:05:50,000 Speaker 1: there was an order given to him that he not 100 00:05:50,200 --> 00:05:54,040 Speaker 1: pray in view of his students, and that that order, 101 00:05:54,160 --> 00:05:58,120 Speaker 1: because he violated it caused his adverse employment action. Now 102 00:05:58,160 --> 00:06:00,480 Speaker 1: that order, if you think about it, is incredible abroad. 103 00:06:00,560 --> 00:06:02,360 Speaker 1: I mean, it would suggest that this came up in 104 00:06:02,480 --> 00:06:05,159 Speaker 1: oral argument. You know, if in the lunchroom high school 105 00:06:05,200 --> 00:06:07,440 Speaker 1: teacher about her head and made the sign of the 106 00:06:07,480 --> 00:06:09,600 Speaker 1: Cross instead of grace, or one of the examples that 107 00:06:09,640 --> 00:06:11,640 Speaker 1: came up was a teacher came to school with ashes 108 00:06:11,640 --> 00:06:14,320 Speaker 1: on ash Wednesday, that would all be in violation of 109 00:06:14,360 --> 00:06:16,560 Speaker 1: the order. And so if the court is focusing just 110 00:06:16,800 --> 00:06:18,880 Speaker 1: on the order that was given to Kennedy and the 111 00:06:18,920 --> 00:06:22,000 Speaker 1: adverse employment action that followed, I think a lot of 112 00:06:22,040 --> 00:06:26,039 Speaker 1: this other atmospheric is kind of not relevant. And what 113 00:06:26,120 --> 00:06:30,120 Speaker 1: about some of the justices concerns that the players might 114 00:06:30,200 --> 00:06:35,200 Speaker 1: feel pressured to participate in the coach's prayer. There actually 115 00:06:35,240 --> 00:06:38,599 Speaker 1: isn't any controversy really in First Amendment law about the 116 00:06:38,600 --> 00:06:41,839 Speaker 1: basic proposition that government officials are not allowed to force 117 00:06:41,880 --> 00:06:45,320 Speaker 1: people to engage in religious actions. So everybody agrees that 118 00:06:45,360 --> 00:06:47,520 Speaker 1: you can't do that. The problem is in this case 119 00:06:47,560 --> 00:06:50,400 Speaker 1: and coach Kennedy's cases, that wasn't the reason that he 120 00:06:50,480 --> 00:06:53,320 Speaker 1: was disciplined. The reason he was disciplined had to do 121 00:06:53,400 --> 00:06:57,040 Speaker 1: with this so called endorsement test. And the district's position 122 00:06:57,240 --> 00:07:00,440 Speaker 1: was we have to censor coach Kennedy's because if we don't, 123 00:07:00,680 --> 00:07:05,599 Speaker 1: people will perceive somehow that the district is endorsing religion. 124 00:07:05,680 --> 00:07:08,800 Speaker 1: So the district's position, it's argument at the beginning, was 125 00:07:08,880 --> 00:07:12,480 Speaker 1: the Establishment Clause requires us to limit this expression. Now 126 00:07:12,480 --> 00:07:15,000 Speaker 1: the districts position has began to evolved over time. They 127 00:07:15,040 --> 00:07:18,240 Speaker 1: relied more on the coersion theory in the Supreme Court. 128 00:07:18,440 --> 00:07:21,840 Speaker 1: But there really isn't evidence that any of the players, 129 00:07:21,840 --> 00:07:26,040 Speaker 1: in fact, we're courced to engage in any religious activity. 130 00:07:26,040 --> 00:07:28,160 Speaker 1: At least there was no there was no evidence of 131 00:07:28,200 --> 00:07:30,840 Speaker 1: this that was relied on by the district when they 132 00:07:30,840 --> 00:07:32,960 Speaker 1: disciplined to coach Kennedy. So I think this is a 133 00:07:32,960 --> 00:07:35,080 Speaker 1: little bit of a muddying of the waters because it 134 00:07:35,240 --> 00:07:38,760 Speaker 1: isn't the controversial position. The conservatives and the liberals agree 135 00:07:39,000 --> 00:07:42,440 Speaker 1: that the First Amendment doesn't permit coercion to participate in 136 00:07:42,480 --> 00:07:45,120 Speaker 1: religious activity, that that's kind of a core violation of 137 00:07:45,120 --> 00:07:47,000 Speaker 1: the First Amendment. But what is an issue, and what 138 00:07:47,080 --> 00:07:50,240 Speaker 1: I think some of the more conservative justices were emphasizing 139 00:07:50,240 --> 00:07:53,680 Speaker 1: in oral argument is there's this theory kicking around for 140 00:07:53,720 --> 00:07:56,960 Speaker 1: the last forty years called the endorsement test, which is 141 00:07:56,960 --> 00:07:59,960 Speaker 1: that simplifying a bit that the First Amendment is violent 142 00:08:00,440 --> 00:08:05,040 Speaker 1: if the government, even indirectly, is perceived by third parties 143 00:08:05,200 --> 00:08:08,440 Speaker 1: as quote unquote endorsing religion. And that's the theory that 144 00:08:08,480 --> 00:08:10,760 Speaker 1: the district relied on when they discipline to coach Kennedy. 145 00:08:10,880 --> 00:08:13,160 Speaker 1: And that's the theory that I should disclose. I I 146 00:08:13,200 --> 00:08:15,480 Speaker 1: file a brief in the case arguing that the court 147 00:08:15,520 --> 00:08:17,440 Speaker 1: should reject this test, that this is not what the 148 00:08:17,520 --> 00:08:21,600 Speaker 1: Establishment Clause means. So my hope is that the justices 149 00:08:21,800 --> 00:08:25,600 Speaker 1: will state clearly and will provide guidance to the lower 150 00:08:25,640 --> 00:08:28,520 Speaker 1: courts and school district officials around the country that the 151 00:08:28,640 --> 00:08:32,000 Speaker 1: Establishment Clause, which is obviously crucially important for religious freedom, 152 00:08:32,080 --> 00:08:36,120 Speaker 1: it doesn't give judges the authority to try to interpret 153 00:08:36,200 --> 00:08:38,880 Speaker 1: every government event and decide whether or not, in some 154 00:08:39,000 --> 00:08:44,040 Speaker 1: abstract way, it endorses religion. Almost every analyst seems to 155 00:08:44,120 --> 00:08:47,360 Speaker 1: agree that the justices are going to rule for the coach. 156 00:08:48,000 --> 00:08:50,960 Speaker 1: Do you agree? Yeah? I do? I mean, I guess 157 00:08:51,000 --> 00:08:54,800 Speaker 1: I'd say. I think some analysts I've seen have said, well, 158 00:08:54,920 --> 00:08:56,599 Speaker 1: you know, we know the court's going to rule for 159 00:08:56,640 --> 00:08:59,679 Speaker 1: the coach because of you know, red versus Blue or 160 00:09:00,040 --> 00:09:02,280 Speaker 1: Republican versus Democrats. I think that's wrong. I think they're 161 00:09:02,280 --> 00:09:04,760 Speaker 1: gonna rule for the coach because the law pretty clearly 162 00:09:04,840 --> 00:09:07,080 Speaker 1: protects the right of people to engage in a religious 163 00:09:07,080 --> 00:09:11,080 Speaker 1: expression in the public square. And the law doesn't require 164 00:09:11,160 --> 00:09:14,800 Speaker 1: governments to censor private religious speech out of some vague 165 00:09:14,840 --> 00:09:18,760 Speaker 1: fear of endorsement. The law does guarantee that there can't 166 00:09:18,800 --> 00:09:21,800 Speaker 1: be any coercion by government to participate in prayer. But 167 00:09:21,840 --> 00:09:24,800 Speaker 1: that didn't happen here. Could the justices issue a narrow 168 00:09:24,920 --> 00:09:29,040 Speaker 1: ruling or a broad ruling? Yeah, so more broad ruling, 169 00:09:29,280 --> 00:09:31,480 Speaker 1: and the one that I confess i'd like to see 170 00:09:31,640 --> 00:09:35,120 Speaker 1: would involve some doctrinal cleanup, and it would involve the 171 00:09:35,160 --> 00:09:38,600 Speaker 1: justices having to say, look, for forty years, we've had 172 00:09:38,640 --> 00:09:42,720 Speaker 1: this endorsement test kind of lurking in the background of 173 00:09:42,720 --> 00:09:47,880 Speaker 1: our of our rules regarding the First Amendment, and we're 174 00:09:47,920 --> 00:09:49,760 Speaker 1: just here to tell you that that's not the rule anymore. 175 00:09:49,880 --> 00:09:51,920 Speaker 1: So lower courts, you don't have to worry about that 176 00:09:51,920 --> 00:09:54,480 Speaker 1: that that would be a broader ruling, and I think 177 00:09:54,480 --> 00:09:57,080 Speaker 1: that would be efficient and that would help. That would 178 00:09:57,120 --> 00:09:59,760 Speaker 1: really help school officials so they didn't have to worry 179 00:09:59,760 --> 00:10:02,400 Speaker 1: about being sued when they permit free speech, and they 180 00:10:02,400 --> 00:10:05,960 Speaker 1: could dedicate their resources to better things. A more narrow 181 00:10:06,080 --> 00:10:08,800 Speaker 1: ruling might be just to say, look, our doctrine is 182 00:10:08,840 --> 00:10:11,880 Speaker 1: the same as it always was, but on these facts 183 00:10:12,200 --> 00:10:15,640 Speaker 1: there was no coercion, there was no endorsement, and therefore 184 00:10:15,760 --> 00:10:19,320 Speaker 1: coach Kennedy's First Amendment rights were violated when he was disciplined. 185 00:10:19,360 --> 00:10:22,760 Speaker 1: That would be the more narrow and some analysts have 186 00:10:22,960 --> 00:10:26,320 Speaker 1: called this one of the most consequential cases in recent 187 00:10:26,400 --> 00:10:30,560 Speaker 1: years testing the separation of church and state. Do you 188 00:10:30,600 --> 00:10:33,679 Speaker 1: see it that way? No, unless the court takes the 189 00:10:33,720 --> 00:10:36,760 Speaker 1: broader approach that I suggested and cleans up its doctrine, 190 00:10:36,760 --> 00:10:38,120 Speaker 1: as I hope it will. But I think a lot 191 00:10:38,120 --> 00:10:40,200 Speaker 1: of the analysts who are referring to it that way 192 00:10:40,440 --> 00:10:44,080 Speaker 1: are claiming, in my view, incorrectly that a win for 193 00:10:44,120 --> 00:10:46,800 Speaker 1: the coach would mean that effectively you could just go 194 00:10:46,880 --> 00:10:49,920 Speaker 1: back to having state sponsored school prayer in public schools, 195 00:10:50,080 --> 00:10:52,840 Speaker 1: and that's false. Even if the coach wins, wouldn't call 196 00:10:52,920 --> 00:10:55,800 Speaker 1: into question the sixty year old rulings that you can't 197 00:10:55,800 --> 00:10:59,240 Speaker 1: have official government composed prayers in public school as part 198 00:10:59,240 --> 00:11:01,920 Speaker 1: of the curriculum. Those rulings from the sixties, I'm confident 199 00:11:02,000 --> 00:11:05,280 Speaker 1: are not going anywhere. Thanks so much, Rick. That's Professor 200 00:11:05,360 --> 00:11:10,400 Speaker 1: Richard Garnett of Notre Dame Law School. The oral argument 201 00:11:10,440 --> 00:11:13,120 Speaker 1: we have just concluded is the last the Court will 202 00:11:13,200 --> 00:11:18,440 Speaker 1: hear with Justice Brier on the bench for twenty eight years. 203 00:11:18,480 --> 00:11:24,280 Speaker 1: This has been his arena for remarks, profound and moving, questions, 204 00:11:24,440 --> 00:11:32,000 Speaker 1: challenging and insightful, and hypotheticals downright silly. This sitting alone 205 00:11:32,120 --> 00:11:38,440 Speaker 1: has brought us radioactive muskrats and John the Tigerman. As 206 00:11:38,480 --> 00:11:41,800 Speaker 1: the last oral argument of the term concluded on Wednesday, 207 00:11:42,080 --> 00:11:46,199 Speaker 1: Chief Justice John Roberts gave a touching tribute to Justice 208 00:11:46,240 --> 00:11:50,440 Speaker 1: Stephen Bryer, who's retiring after nearly three decades on the bench. 209 00:11:50,960 --> 00:11:54,600 Speaker 1: For now, we leave the courtroom with deep appreciation for 210 00:11:54,679 --> 00:11:59,400 Speaker 1: the privilege of sharing this bench with him. During his 211 00:11:59,520 --> 00:12:03,360 Speaker 1: last argument, out of more than two thousand, Justice Brier 212 00:12:03,440 --> 00:12:07,560 Speaker 1: did not present any of those fantastical hypotheticals he's known 213 00:12:07,679 --> 00:12:11,679 Speaker 1: for this term, involving everything from four ft long cigars 214 00:12:11,720 --> 00:12:15,640 Speaker 1: smoked through hookahs to arbitrating with a spider. But there 215 00:12:15,760 --> 00:12:19,199 Speaker 1: was some classic Brier and they don't prosecute the particular 216 00:12:19,280 --> 00:12:22,880 Speaker 1: crimes when they take place in Indian country. They're prosecuted 217 00:12:22,880 --> 00:12:25,559 Speaker 1: in federal court. Now, am I right or wrong? I'm 218 00:12:25,600 --> 00:12:27,960 Speaker 1: not an expert and you are more of one. So 219 00:12:28,040 --> 00:12:30,719 Speaker 1: am I right or wrong about that? Joining me is 220 00:12:30,800 --> 00:12:34,880 Speaker 1: Carl Tobias, a professor at the University of Richmond Law School. Carl, 221 00:12:34,920 --> 00:12:38,840 Speaker 1: what was Justice Brier's greatest impact on the Court. Well, 222 00:12:38,880 --> 00:12:42,959 Speaker 1: I think it was a whole mix of different ideas. 223 00:12:43,040 --> 00:12:48,840 Speaker 1: But I think his collegiality and his willingness to probe 224 00:12:49,200 --> 00:12:52,199 Speaker 1: the issues in all cases that came before the Court 225 00:12:52,320 --> 00:12:56,000 Speaker 1: and the quality of his questioning during oral argument were 226 00:12:56,080 --> 00:13:00,440 Speaker 1: all important parts of his legacy. But of he was 227 00:13:00,480 --> 00:13:05,120 Speaker 1: an expert in administrative law and regulation as a faculty 228 00:13:05,160 --> 00:13:09,000 Speaker 1: member at Harvard and on the First Circuit, and just 229 00:13:09,160 --> 00:13:13,120 Speaker 1: an astute observer of the Constitution and the branches of government, 230 00:13:13,240 --> 00:13:17,040 Speaker 1: and how it was helpful for the Court to be 231 00:13:17,120 --> 00:13:21,120 Speaker 1: able to probe separation of powers issues, and all of 232 00:13:21,160 --> 00:13:25,160 Speaker 1: the insights that he had about understanding American government and history. 233 00:13:25,720 --> 00:13:30,520 Speaker 1: We were expecting some of his fantastical hypothetical in his 234 00:13:30,640 --> 00:13:33,240 Speaker 1: last oral argument. We didn't hear those, but we did 235 00:13:33,240 --> 00:13:35,040 Speaker 1: hear him ask of the lawyers, as he's done so 236 00:13:35,080 --> 00:13:39,520 Speaker 1: many times, am I right or wrong? No other justice 237 00:13:39,559 --> 00:13:43,520 Speaker 1: frames questions that way, you know, sort of challenging exactly, 238 00:13:43,800 --> 00:13:48,800 Speaker 1: and sometimes the lawyers would engage and other times they wouldn't. 239 00:13:48,920 --> 00:13:53,280 Speaker 1: But he had a reputation for asking probing questions and 240 00:13:53,559 --> 00:13:56,199 Speaker 1: that was valuable. Also has a great sense of humor, 241 00:13:56,559 --> 00:13:59,480 Speaker 1: dry wit, and a number of other attributes that made 242 00:13:59,559 --> 00:14:04,359 Speaker 1: him a great justice. But his collegiality and his willingness 243 00:14:04,440 --> 00:14:09,559 Speaker 1: and capacity for trying to find practical solutions to very 244 00:14:09,559 --> 00:14:13,160 Speaker 1: difficult issues was critical and very important to the court 245 00:14:13,240 --> 00:14:15,800 Speaker 1: for a long period of time. So let's turn out 246 00:14:15,840 --> 00:14:19,600 Speaker 1: to future judges. The White House announced the first batch 247 00:14:19,640 --> 00:14:23,120 Speaker 1: of planned judicial nominations in more than two months, and 248 00:14:23,200 --> 00:14:28,560 Speaker 1: it featured several candidates with prosecutorial experience and law firm partners. 249 00:14:29,040 --> 00:14:31,920 Speaker 1: Those are the types of roles that are often found 250 00:14:32,040 --> 00:14:34,920 Speaker 1: on courts. But Biden had made this push to nominate 251 00:14:35,040 --> 00:14:39,360 Speaker 1: lawyers with public defender and civil rights background. Do you 252 00:14:39,360 --> 00:14:41,960 Speaker 1: think he's trying to nominate people that will get through 253 00:14:42,040 --> 00:14:47,680 Speaker 1: faster or just balancing out his nominations. Well, I think both. 254 00:14:47,760 --> 00:14:51,320 Speaker 1: I mean I think he was and we saw, yeah, 255 00:14:51,440 --> 00:14:58,040 Speaker 1: just yesterday another match of five that looked somewhat more 256 00:14:58,880 --> 00:15:02,360 Speaker 1: like his earlier lines, people who have been federal public defenders. 257 00:15:02,400 --> 00:15:06,320 Speaker 1: So I think we'll see a mix. But mostly I 258 00:15:06,360 --> 00:15:12,160 Speaker 1: think UH concerned about the mid terms and basically trying 259 00:15:12,280 --> 00:15:19,040 Speaker 1: to UH seat as many as possible of Pellate court 260 00:15:19,160 --> 00:15:23,840 Speaker 1: and district court judges in those vacancies as can do 261 00:15:24,240 --> 00:15:27,600 Speaker 1: before the mid term election and probably after the mid 262 00:15:27,720 --> 00:15:31,800 Speaker 1: term election in a lame duck session. Uh and so 263 00:15:31,880 --> 00:15:34,880 Speaker 1: and I think the administration is making the assumption and 264 00:15:35,680 --> 00:15:38,360 Speaker 1: uh the Democrats may lose the majority in the Senate 265 00:15:38,880 --> 00:15:44,080 Speaker 1: in November, and so UH want to be as successful 266 00:15:44,120 --> 00:15:48,120 Speaker 1: as they can in that period of time. And there 267 00:15:48,120 --> 00:15:51,280 Speaker 1: are many in the pipeline, many are coming forward from 268 00:15:51,320 --> 00:15:55,400 Speaker 1: the committee and are on the floor now, and I 269 00:15:55,440 --> 00:15:58,400 Speaker 1: think they will move as expeditiously as they can. And 270 00:15:58,560 --> 00:16:04,240 Speaker 1: a hearing again yesterday a four five historic nominees. All 271 00:16:04,480 --> 00:16:10,760 Speaker 1: five were women who are people of color, and one 272 00:16:11,040 --> 00:16:15,440 Speaker 1: was a lawyer doing civil rights work for entire career. 273 00:16:16,080 --> 00:16:22,640 Speaker 1: Another was the first Bangladeshi nominee for district court, and 274 00:16:22,720 --> 00:16:26,880 Speaker 1: the first female Muslim who would sit on a district court, 275 00:16:27,360 --> 00:16:31,160 Speaker 1: and others who had been engaged in federal public defender 276 00:16:31,520 --> 00:16:36,440 Speaker 1: or related types of work. And so we're seeing a 277 00:16:36,520 --> 00:16:39,920 Speaker 1: pivot back to the lower federal courts, circuit and district 278 00:16:40,600 --> 00:16:45,080 Speaker 1: and moving everything as fast as possible. In the Judiciary Committee, 279 00:16:45,120 --> 00:16:47,760 Speaker 1: I expect that hearing every two weeks, and I think 280 00:16:47,800 --> 00:16:51,600 Speaker 1: Durban has committed to that and moving people to votes 281 00:16:51,800 --> 00:16:55,920 Speaker 1: and then onto the floor. Thanks Carl. That's Carl Tobias, 282 00:16:56,000 --> 00:17:00,520 Speaker 1: professor at the University of Richmond Law School. The question 283 00:17:00,560 --> 00:17:04,200 Speaker 1: before the Supreme Court was whether the Biden administration can 284 00:17:04,200 --> 00:17:07,960 Speaker 1: revoke the Trump Remain in Mexico program, which has forced 285 00:17:07,960 --> 00:17:11,320 Speaker 1: tens of thousands of asylum seekers to stay south of 286 00:17:11,359 --> 00:17:14,919 Speaker 1: the border while their applications are processed. Some of the 287 00:17:15,040 --> 00:17:18,280 Speaker 1: justices seemed to struggle with the conflict between the law 288 00:17:18,320 --> 00:17:21,680 Speaker 1: and the facts. The fact is that Congress has never 289 00:17:21,760 --> 00:17:25,400 Speaker 1: allocated enough money to detain the number of asylum seekers 290 00:17:25,400 --> 00:17:28,639 Speaker 1: that show up at the border. Here's Chief Justice John Roberts, 291 00:17:29,080 --> 00:17:31,560 Speaker 1: You're in a position where the facts have sort of 292 00:17:31,640 --> 00:17:36,440 Speaker 1: overtaken the law, um, and that's what are we supposed 293 00:17:36,480 --> 00:17:38,480 Speaker 1: to do. It's still our job to say what the 294 00:17:38,560 --> 00:17:40,959 Speaker 1: law is. And if we say what the law is 295 00:17:41,040 --> 00:17:42,919 Speaker 1: and you tell us we can't do anything about it, 296 00:17:43,440 --> 00:17:45,520 Speaker 1: where do you think that leaves us? And then there 297 00:17:45,600 --> 00:17:48,920 Speaker 1: was the question of the courts interfering with foreign policy 298 00:17:49,280 --> 00:17:53,560 Speaker 1: and forcing the administration to negotiate with Mexico. Here's Justice 299 00:17:53,560 --> 00:17:57,520 Speaker 1: Elena Kagan. What do you mean it doesn't require negotiation 300 00:17:57,560 --> 00:17:59,280 Speaker 1: with the foreign power. What are we supposed to do 301 00:17:59,359 --> 00:18:02,520 Speaker 1: just drive truckloads of people into Mexico and leave them 302 00:18:02,560 --> 00:18:06,280 Speaker 1: without negotiating with Mexico. My guest is Leon Fresco, a 303 00:18:06,400 --> 00:18:09,080 Speaker 1: partner at Hollandon Knight. I want to start with the 304 00:18:09,160 --> 00:18:13,520 Speaker 1: general question, which is this is a Trump era policy. 305 00:18:13,760 --> 00:18:19,960 Speaker 1: Administrations change and policies change. Why can't the Biden administration 306 00:18:20,480 --> 00:18:24,360 Speaker 1: institute its own policy. Well, because there's two separate arguments 307 00:18:24,359 --> 00:18:26,320 Speaker 1: that are being made by the State of Texas, and 308 00:18:26,320 --> 00:18:29,160 Speaker 1: we'll find out if they're correct or not. The first 309 00:18:29,359 --> 00:18:35,680 Speaker 1: is that the statute itself actually requires the Biden administration 310 00:18:36,000 --> 00:18:40,200 Speaker 1: to use this remain in Mexico policy in a situation 311 00:18:40,240 --> 00:18:44,879 Speaker 1: where there's not enough detention space to actually hold every 312 00:18:44,880 --> 00:18:48,639 Speaker 1: single person coming across the border while their case is decided. 313 00:18:48,840 --> 00:18:51,679 Speaker 1: That's the argument that the State of Texas is making. 314 00:18:51,840 --> 00:18:55,200 Speaker 1: That's their first argument. And so if the Biden administration 315 00:18:55,320 --> 00:18:58,960 Speaker 1: is actually violating a statute, then that's a very simple 316 00:18:59,080 --> 00:19:02,040 Speaker 1: argument for State of Texas to make and to prevail on. 317 00:19:02,119 --> 00:19:04,880 Speaker 1: And then their second argument is, well, even if they 318 00:19:04,880 --> 00:19:08,800 Speaker 1: didn't violate the statute and they have discretion for how 319 00:19:08,880 --> 00:19:13,520 Speaker 1: to interpret the statute, their ending of the migration protocols 320 00:19:13,600 --> 00:19:18,040 Speaker 1: in this situation is arbitrary and capricious because they're not 321 00:19:18,160 --> 00:19:23,120 Speaker 1: providing sufficiently good enough reasons for ending the Migration Protection 322 00:19:23,160 --> 00:19:26,639 Speaker 1: Protocol or what's known as remain in Mexico. This is 323 00:19:27,840 --> 00:19:33,159 Speaker 1: immigration law. Have presidents since n followed this law. So 324 00:19:33,480 --> 00:19:38,000 Speaker 1: the nine Statutes that creates the ability to move people 325 00:19:38,160 --> 00:19:43,240 Speaker 1: into Mexico while their asylum cases pending is a maze statute. 326 00:19:43,280 --> 00:19:46,720 Speaker 1: And that's a very big thing that the Biden administration 327 00:19:46,800 --> 00:19:48,960 Speaker 1: was really focusing on during this argument, is that the 328 00:19:48,960 --> 00:19:52,399 Speaker 1: statute says the administration may do this, as opposed to 329 00:19:52,720 --> 00:19:56,520 Speaker 1: the administration child do this. And what has happened is 330 00:19:56,720 --> 00:20:00,359 Speaker 1: that the only administration that really actually did this in 331 00:20:00,400 --> 00:20:03,800 Speaker 1: any kind of measure was the Trump administration. And so 332 00:20:03,960 --> 00:20:06,520 Speaker 1: they started doing this near the end of the Trump 333 00:20:06,560 --> 00:20:10,520 Speaker 1: administration after a long scenario that they had with Mexico 334 00:20:10,600 --> 00:20:13,960 Speaker 1: where they threatened them over tyiffs and other things unless 335 00:20:14,000 --> 00:20:17,399 Speaker 1: Mexico allowed this to occur. And so then a silent 336 00:20:17,440 --> 00:20:21,040 Speaker 1: speakers were housed in Mexico, although even during the Trump administration, 337 00:20:21,200 --> 00:20:24,040 Speaker 1: not in large numbers, because at the end of the day, 338 00:20:24,080 --> 00:20:27,040 Speaker 1: there was litigation going on and there really still wasn't 339 00:20:27,040 --> 00:20:29,679 Speaker 1: the capacity to do this in large numbers. And so 340 00:20:29,800 --> 00:20:32,159 Speaker 1: one of the interesting things that came up in tease 341 00:20:32,280 --> 00:20:36,320 Speaker 1: argument was the admission by everybody, by the Department of Justice, 342 00:20:36,520 --> 00:20:38,800 Speaker 1: by the State of Texas, and by many of the 343 00:20:38,920 --> 00:20:43,080 Speaker 1: justices that even the Trump administration would be violating the 344 00:20:43,119 --> 00:20:46,240 Speaker 1: Remain in Mexico Statute if it was to be interpreted 345 00:20:46,680 --> 00:20:50,080 Speaker 1: the way Texas wanted it, which would be to require 346 00:20:50,720 --> 00:20:55,159 Speaker 1: every person who's not detained to be placed into this 347 00:20:55,200 --> 00:20:58,600 Speaker 1: program in Mexico. It was clear that Trump administration wasn't 348 00:20:58,600 --> 00:21:02,040 Speaker 1: doing anything like that. Only on what about courts interfering 349 00:21:02,080 --> 00:21:05,360 Speaker 1: in foreign policy? That's a no no, isn't it. This 350 00:21:05,440 --> 00:21:08,280 Speaker 1: is where the justices said, look, we've for hundreds of 351 00:21:08,359 --> 00:21:10,400 Speaker 1: years and we're not going to get involved in these 352 00:21:10,400 --> 00:21:13,760 Speaker 1: foreign policy questions? Why do you want us getting involved 353 00:21:13,800 --> 00:21:15,600 Speaker 1: in this now? And I think this has been the 354 00:21:15,640 --> 00:21:18,439 Speaker 1: weakest part of this case is how much of this 355 00:21:18,520 --> 00:21:22,040 Speaker 1: program depends on Mexico and how much the judges will 356 00:21:22,119 --> 00:21:26,760 Speaker 1: have to intervene in foreign policy in order to make 357 00:21:26,800 --> 00:21:29,520 Speaker 1: sure that an injunction like this has maintained. And so 358 00:21:29,560 --> 00:21:32,119 Speaker 1: I think this is what makes the most uncomfortable. But 359 00:21:32,200 --> 00:21:36,480 Speaker 1: I also think the justices are equally uncomfortable with taking 360 00:21:36,520 --> 00:21:40,240 Speaker 1: this tool off the table and what they're hearing then 361 00:21:40,280 --> 00:21:42,920 Speaker 1: with regard to Title forty two coming down the pike 362 00:21:43,200 --> 00:21:47,320 Speaker 1: and saying, well, we don't want to potentially be contributory 363 00:21:47,359 --> 00:21:50,800 Speaker 1: factor to a large surge at the order. And so 364 00:21:51,160 --> 00:21:53,800 Speaker 1: it's not exactly clear how this has going to come out. 365 00:21:54,240 --> 00:21:58,200 Speaker 1: Tell us what the major concern of the justices seem 366 00:21:58,280 --> 00:22:00,359 Speaker 1: to be. You you know, there were a few scenes. 367 00:22:00,800 --> 00:22:03,600 Speaker 1: The most interesting one sort of as an initial matter, 368 00:22:03,680 --> 00:22:07,840 Speaker 1: was whether the court had jurisdictions to even consider the claim, 369 00:22:07,920 --> 00:22:10,800 Speaker 1: which is I think something that the courts have been 370 00:22:10,840 --> 00:22:13,680 Speaker 1: skipping in prior cases. But I think the issue has 371 00:22:13,760 --> 00:22:16,800 Speaker 1: become one where these cases keep coming over and over 372 00:22:16,840 --> 00:22:18,919 Speaker 1: and over and over again to the court. And so 373 00:22:18,960 --> 00:22:22,720 Speaker 1: there's a statute called a USC Section twelve fifty two, 374 00:22:23,400 --> 00:22:27,600 Speaker 1: paragraph f one, which says, if you're seeking injunctive relief 375 00:22:27,880 --> 00:22:31,280 Speaker 1: of any aspects of the immigration system, you're not. The 376 00:22:31,320 --> 00:22:33,320 Speaker 1: court has no jurisdiction to do that. All they can 377 00:22:33,400 --> 00:22:38,119 Speaker 1: do is address case by case questions in the issues 378 00:22:38,160 --> 00:22:41,119 Speaker 1: of a specific person that's going through the system. But 379 00:22:41,240 --> 00:22:44,919 Speaker 1: they can't do these large injunctive relief cases. And so 380 00:22:44,960 --> 00:22:47,159 Speaker 1: what's interesting is courts have gotten around that in the 381 00:22:47,160 --> 00:22:49,719 Speaker 1: past by saying, well, this is an injunctive relief, this 382 00:22:49,800 --> 00:22:52,480 Speaker 1: is a declaratory relief. And so I don't know. I 383 00:22:52,520 --> 00:22:54,959 Speaker 1: don't know if they're gonna revisit this now or if 384 00:22:55,000 --> 00:22:57,280 Speaker 1: they're just gonna yet against get the step and say 385 00:22:57,280 --> 00:23:00,800 Speaker 1: we have jurisdiction. But then so after you skipped that step. 386 00:23:00,800 --> 00:23:02,720 Speaker 1: But it was interesting that a lot of the conservative 387 00:23:02,800 --> 00:23:07,200 Speaker 1: justices were the ones asking about jurisdiction, because I think 388 00:23:07,240 --> 00:23:09,879 Speaker 1: a lot of the liberal justices probably don't want to 389 00:23:09,920 --> 00:23:13,040 Speaker 1: decide the case on those grounds because I could easily 390 00:23:13,040 --> 00:23:15,840 Speaker 1: come back to hunt them later in the future administration 391 00:23:16,240 --> 00:23:19,359 Speaker 1: where other kinds of states want to sue. And so 392 00:23:19,640 --> 00:23:21,560 Speaker 1: I don't know that it will be interesting to see, 393 00:23:21,600 --> 00:23:23,639 Speaker 1: but I don't think there will be five boats on 394 00:23:23,720 --> 00:23:26,639 Speaker 1: the jurisdictional question, although I do think there will be 395 00:23:26,640 --> 00:23:31,480 Speaker 1: some interesting perhaps either dissent or concurrences that mentioned this 396 00:23:31,640 --> 00:23:35,680 Speaker 1: jurisdictional issue. So that's number one. The second issue that 397 00:23:35,840 --> 00:23:39,359 Speaker 1: was that came up as a result of this is, well, 398 00:23:39,680 --> 00:23:44,040 Speaker 1: what does the statute say? Does the statute require the 399 00:23:44,080 --> 00:23:48,240 Speaker 1: administration to move people into Mexico where there's that detention space, 400 00:23:48,560 --> 00:23:50,880 Speaker 1: And that's what the State of Texas is saying. They're 401 00:23:50,880 --> 00:23:55,960 Speaker 1: saying because the statute says that you shall detain anybody 402 00:23:56,080 --> 00:23:59,800 Speaker 1: coming into the United States who's seeking asylum. That when 403 00:23:59,840 --> 00:24:02,760 Speaker 1: you don't detain people who are coming into the United 404 00:24:02,760 --> 00:24:06,240 Speaker 1: States who are thinking asylum, presumably because it's not sufficient 405 00:24:06,720 --> 00:24:12,960 Speaker 1: detention capacity, then the may in the Migration Protection Protocol 406 00:24:13,000 --> 00:24:16,479 Speaker 1: statue transforms into a shell. It's the next thing that 407 00:24:16,520 --> 00:24:19,960 Speaker 1: you have to do as opposed to remaining as a MAY. 408 00:24:20,119 --> 00:24:24,280 Speaker 1: It doesn't it doesn't become an option. It becomes the options, 409 00:24:24,400 --> 00:24:27,480 Speaker 1: the things that you have to do in that situation. 410 00:24:27,880 --> 00:24:30,520 Speaker 1: And so the way they read the statute is there's 411 00:24:30,560 --> 00:24:32,800 Speaker 1: only two choices. You don't have to detain anybody. You 412 00:24:32,800 --> 00:24:35,680 Speaker 1: could keep everybody in Mexico. But if you want to 413 00:24:35,760 --> 00:24:38,920 Speaker 1: let people in, that's fine, but you have to detain them. 414 00:24:39,160 --> 00:24:41,480 Speaker 1: And if you don't detain them, that's when you go 415 00:24:41,560 --> 00:24:44,520 Speaker 1: into Mexico. That's the way they read the statutes. The 416 00:24:44,560 --> 00:24:48,800 Speaker 1: Biden administration reads it as no, this is one tool 417 00:24:48,920 --> 00:24:52,720 Speaker 1: which we can either use or not use in this situation, 418 00:24:53,320 --> 00:24:56,399 Speaker 1: and so we are using it, but we are using 419 00:24:56,400 --> 00:25:01,960 Speaker 1: it with very limited, uh characteristic, and very very limited spheres, 420 00:25:02,000 --> 00:25:04,200 Speaker 1: and we don't want to use it at all because 421 00:25:04,200 --> 00:25:06,280 Speaker 1: there are other tools that we can use, such as 422 00:25:06,359 --> 00:25:10,119 Speaker 1: bonds and alternatives the detention that that we believe will 423 00:25:10,840 --> 00:25:13,560 Speaker 1: so you know, do the same have the same techniques, 424 00:25:13,880 --> 00:25:17,560 Speaker 1: have the same success as remain in Mexico. So then 425 00:25:17,680 --> 00:25:22,919 Speaker 1: Brent Kavanaugh. Justice Kavanaugh got uh concerned about that explanation 426 00:25:22,960 --> 00:25:26,320 Speaker 1: and said he did not find that particularly compelling, and 427 00:25:26,480 --> 00:25:29,760 Speaker 1: that the remain in Mexico policy seems to be a 428 00:25:29,880 --> 00:25:33,240 Speaker 1: very sound policy, that there would be no reason that 429 00:25:33,359 --> 00:25:37,280 Speaker 1: was an arbitrary or capricious to actually try to discontinue 430 00:25:37,320 --> 00:25:41,159 Speaker 1: that program, and that the Biden administration didn't have the 431 00:25:41,280 --> 00:25:44,360 Speaker 1: authority to be letting in all of these individuals into 432 00:25:44,400 --> 00:25:46,800 Speaker 1: the United States. Who are not detained in order to 433 00:25:46,840 --> 00:25:49,920 Speaker 1: wait for their asylum plane. And so then there was 434 00:25:49,960 --> 00:25:53,040 Speaker 1: a lot of chatter amongst the justices about that issue. 435 00:25:53,080 --> 00:25:55,439 Speaker 1: Do they have the authority? What is the authority to 436 00:25:55,600 --> 00:26:01,680 Speaker 1: let in people? And there seems to be some consensus, 437 00:26:01,720 --> 00:26:04,200 Speaker 1: although it's hard to say amongst some number of the 438 00:26:04,280 --> 00:26:09,199 Speaker 1: justices that, look, if there's not sufficient detention capacity, because 439 00:26:09,200 --> 00:26:11,760 Speaker 1: the Congress does say if you're asking for asylum at 440 00:26:11,800 --> 00:26:13,879 Speaker 1: the boarder, you should be detained while that case is 441 00:26:13,920 --> 00:26:18,000 Speaker 1: going on. But if there isn't sufficient detention capacity, that 442 00:26:18,280 --> 00:26:21,760 Speaker 1: the next situation would be that what has to happen 443 00:26:21,840 --> 00:26:25,080 Speaker 1: as a matter of administering the system is you release 444 00:26:25,160 --> 00:26:27,919 Speaker 1: the person into the United States and the dispatutory scheme 445 00:26:28,440 --> 00:26:31,720 Speaker 1: understands that, as does the history of what's gone on 446 00:26:32,119 --> 00:26:35,320 Speaker 1: in the United States for many decades now. And so 447 00:26:36,359 --> 00:26:40,480 Speaker 1: there's that issue, and then it goes into, finally the 448 00:26:40,600 --> 00:26:44,240 Speaker 1: argument about well, what about foreign policy? Are courts getting 449 00:26:44,320 --> 00:26:48,640 Speaker 1: way too much into foreign policy here? Because what happens 450 00:26:48,800 --> 00:26:53,560 Speaker 1: if the you know, the remain in Mexico in junction continues, 451 00:26:53,640 --> 00:26:56,960 Speaker 1: but Mexico and the United States can't continue, what are 452 00:26:56,960 --> 00:27:00,320 Speaker 1: the courts to do? And here is where Texas sort 453 00:27:00,359 --> 00:27:03,359 Speaker 1: of the least of the argument, where they were saying, well, 454 00:27:03,359 --> 00:27:06,200 Speaker 1: the port could lift the injunction that if it wasn't 455 00:27:06,200 --> 00:27:11,480 Speaker 1: satisfied that the US was negotiating in it was negotiating 456 00:27:11,480 --> 00:27:13,840 Speaker 1: in good faith, that wasn't making it with Mexico, wasn't 457 00:27:13,840 --> 00:27:17,679 Speaker 1: making any significant headway. And this is where the Justice 458 00:27:17,720 --> 00:27:20,280 Speaker 1: is said, look, we've for hundreds of years and we're 459 00:27:20,320 --> 00:27:22,879 Speaker 1: not going to get involved in these foreign policy questions. 460 00:27:23,240 --> 00:27:25,400 Speaker 1: Why do you want us getting involved in this now? 461 00:27:25,440 --> 00:27:27,560 Speaker 1: And I think this has been the weakest part of 462 00:27:27,600 --> 00:27:30,560 Speaker 1: this case is how much of this program depends on 463 00:27:30,640 --> 00:27:34,360 Speaker 1: Mexico and how much the judges will have to intervene 464 00:27:34,359 --> 00:27:38,760 Speaker 1: in foreign policy in order to make sure that an 465 00:27:38,760 --> 00:27:41,480 Speaker 1: injunction like this has maintained. And so I think that's 466 00:27:41,520 --> 00:27:43,720 Speaker 1: the biggest problem. I think this is what makes the 467 00:27:43,840 --> 00:27:47,520 Speaker 1: most uncomfortable, But I also think the justices are equally 468 00:27:47,600 --> 00:27:53,040 Speaker 1: uncomfortable with taking this tool off the table and what 469 00:27:53,160 --> 00:27:55,960 Speaker 1: they're hearing then with regard to Title forty two coming 470 00:27:55,960 --> 00:27:59,640 Speaker 1: down the pike and saying, well, we don't want to 471 00:27:59,640 --> 00:28:03,040 Speaker 1: put the actually be a contributory factor to a large 472 00:28:03,040 --> 00:28:06,879 Speaker 1: surge as the order and so it's not exactly clear 473 00:28:06,920 --> 00:28:08,840 Speaker 1: how this has going to come out. I do think 474 00:28:09,320 --> 00:28:13,880 Speaker 1: there are five justices that are sympathetic to enough different 475 00:28:14,000 --> 00:28:18,119 Speaker 1: arguments to allow the remaining Mexical policy to be ended, 476 00:28:18,520 --> 00:28:20,480 Speaker 1: but I don't know if they will call less around 477 00:28:20,480 --> 00:28:23,480 Speaker 1: a specific answer, and so it will be very hard 478 00:28:23,520 --> 00:28:27,159 Speaker 1: to predict. I think where this case is going. You 479 00:28:27,160 --> 00:28:29,480 Speaker 1: think there are five that are sympathetic to having the 480 00:28:29,520 --> 00:28:33,120 Speaker 1: policy ended, well, not the policy ended. So I think 481 00:28:33,160 --> 00:28:36,600 Speaker 1: there's two or three justices that would say there's no jurisdiction, 482 00:28:37,119 --> 00:28:40,400 Speaker 1: which is interesting, and so the case would end from there, 483 00:28:40,480 --> 00:28:43,520 Speaker 1: meaning that there was no jurisdiction to challenge the ending 484 00:28:43,520 --> 00:28:46,520 Speaker 1: of the remain in Mexico policy. And I think then 485 00:28:46,520 --> 00:28:49,280 Speaker 1: the three liberal justices think, look, this can be ended. 486 00:28:49,320 --> 00:28:53,160 Speaker 1: It's not arbitrary and capricious. The demo was perfectly reasonable 487 00:28:53,240 --> 00:28:56,080 Speaker 1: and the story. And so the question is will those 488 00:28:56,560 --> 00:29:00,560 Speaker 1: six lead to a judgment that ends the ruling for 489 00:29:00,600 --> 00:29:03,400 Speaker 1: the Biden administration or will they not be able to 490 00:29:03,440 --> 00:29:07,120 Speaker 1: agree on such a judgment, and will they end up 491 00:29:07,160 --> 00:29:11,120 Speaker 1: going somewhere else that actually upholds to remain in Mexico policies. 492 00:29:11,160 --> 00:29:13,920 Speaker 1: That would be very interesting to see. I don't exactly 493 00:29:13,960 --> 00:29:15,960 Speaker 1: have a good field based on the argument. How this 494 00:29:16,040 --> 00:29:20,000 Speaker 1: will turn out will know in two months, but I 495 00:29:20,040 --> 00:29:22,000 Speaker 1: think it's going to be a very very close call. 496 00:29:22,120 --> 00:29:26,680 Speaker 1: I think there for sure three justices who say this 497 00:29:26,800 --> 00:29:29,880 Speaker 1: is a terrible policy that's being lifted. It should be 498 00:29:29,920 --> 00:29:34,080 Speaker 1: kept in place. The Biden administration is acting arbitrarily and cambrecionsly. 499 00:29:34,440 --> 00:29:37,240 Speaker 1: I think you have on that front. You have Thomas, 500 00:29:37,360 --> 00:29:42,040 Speaker 1: you have you have Leedo, and you have Gortage in 501 00:29:42,080 --> 00:29:46,520 Speaker 1: that situation. Then we don't know where Robert's Kavanaugh and 502 00:29:46,520 --> 00:29:48,640 Speaker 1: and Justice Coney Barrett are going to be in this 503 00:29:48,800 --> 00:29:51,320 Speaker 1: situation there they seem to be more of the swing 504 00:29:51,400 --> 00:29:55,360 Speaker 1: votes here. And then we know we have Briar, we 505 00:29:55,440 --> 00:29:57,840 Speaker 1: have sort of my yard, we have Kagan, who are 506 00:29:57,960 --> 00:30:00,200 Speaker 1: sort of in the camp off. Look, they can if 507 00:30:00,320 --> 00:30:02,680 Speaker 1: the memo there was a memo made by Trump, there's 508 00:30:02,680 --> 00:30:05,880 Speaker 1: a memo made by Biden. This memo is perfectly reasonable. 509 00:30:06,160 --> 00:30:09,480 Speaker 1: They have the discretion to lift the policy. And so 510 00:30:09,600 --> 00:30:12,400 Speaker 1: where those three middle justices go is what I think 511 00:30:12,520 --> 00:30:15,440 Speaker 1: is gonna matter here. Can you read anything into the 512 00:30:15,480 --> 00:30:20,640 Speaker 1: fact that the Supreme Court rejected the Biden administration's request 513 00:30:20,760 --> 00:30:24,960 Speaker 1: to block the lower court's decision. I mean, you would 514 00:30:24,960 --> 00:30:27,800 Speaker 1: think ordinarily that that would be the end all, be all, 515 00:30:28,200 --> 00:30:30,120 Speaker 1: and that it's very clear you're gonna end up back 516 00:30:30,160 --> 00:30:34,120 Speaker 1: with the same six three decision that maintains the decisions 517 00:30:34,120 --> 00:30:39,600 Speaker 1: to block the Biden administrations from lifting the migration protection protocols. 518 00:30:39,640 --> 00:30:43,400 Speaker 1: But what you could sense in the argument was these 519 00:30:43,440 --> 00:30:47,000 Speaker 1: justices personally grappling with a lot of the argument in 520 00:30:47,040 --> 00:30:50,160 Speaker 1: a way that made it clear that perhaps they hadn't 521 00:30:50,200 --> 00:30:54,160 Speaker 1: really been as informed as to the details of both 522 00:30:54,200 --> 00:30:57,600 Speaker 1: the statutes and the policies placed on the border, such 523 00:30:57,640 --> 00:31:00,760 Speaker 1: that there's certainly reason to believe that the decision of change. 524 00:31:00,960 --> 00:31:04,880 Speaker 1: They didn't seem to be fully aware of everything going 525 00:31:04,920 --> 00:31:08,720 Speaker 1: on at this argument, and so from that I could 526 00:31:08,720 --> 00:31:11,120 Speaker 1: see the position changing. But of course, I think if 527 00:31:11,120 --> 00:31:15,200 Speaker 1: you were a person who was prognosticating this and trying 528 00:31:15,200 --> 00:31:17,520 Speaker 1: to stay on the state side, you would say, well, 529 00:31:17,520 --> 00:31:19,360 Speaker 1: of course it's gonna say it's the same six to 530 00:31:19,440 --> 00:31:21,760 Speaker 1: three as it was before. I think that would be 531 00:31:22,120 --> 00:31:25,920 Speaker 1: logical and the conventional wisdom. But I just think that 532 00:31:25,920 --> 00:31:30,160 Speaker 1: there was enough new information and insight from this from 533 00:31:30,200 --> 00:31:34,480 Speaker 1: this hearing that it's not likely that at least one 534 00:31:34,560 --> 00:31:37,240 Speaker 1: vote won't change. I could see at least one vote changing. 535 00:31:37,280 --> 00:31:39,600 Speaker 1: The question is whether there will be two. That's an 536 00:31:39,600 --> 00:31:44,400 Speaker 1: interesting question. Whose vote do you see changing? Because I 537 00:31:44,440 --> 00:31:48,120 Speaker 1: think Roberts for sure could change. And then the question 538 00:31:48,200 --> 00:31:52,400 Speaker 1: is is there one between Cony Barrett or Kavanaugh or 539 00:31:52,440 --> 00:31:55,880 Speaker 1: maybe even Justice Thomas saying there's no jurisdiction and so 540 00:31:56,040 --> 00:31:58,040 Speaker 1: he just votes for the judgment because he was the 541 00:31:58,040 --> 00:32:00,960 Speaker 1: one bringing up that there's no jurisdic and maybe he 542 00:32:01,040 --> 00:32:04,120 Speaker 1: can somehow come into the five in that way and 543 00:32:04,200 --> 00:32:07,080 Speaker 1: that somehow that makes it enough. I don't know, we'll 544 00:32:07,080 --> 00:32:10,480 Speaker 1: have to see. This brings up several questions. Does this 545 00:32:10,680 --> 00:32:14,680 Speaker 1: mean that the United States either has to detain people 546 00:32:15,000 --> 00:32:18,600 Speaker 1: who are seeking asylum or send them back to Mexico, 547 00:32:18,840 --> 00:32:22,240 Speaker 1: that there's no letting them into the country under this, Well, 548 00:32:22,440 --> 00:32:24,800 Speaker 1: that would be the arguments that the State of Texas 549 00:32:24,920 --> 00:32:28,280 Speaker 1: is making. The problem is I think everybody has to 550 00:32:28,360 --> 00:32:30,680 Speaker 1: hear it, so there's no way to have those be 551 00:32:31,160 --> 00:32:34,640 Speaker 1: the only two options, because Mexico is not permitting, in 552 00:32:34,720 --> 00:32:38,280 Speaker 1: terms of numbers, every single person to be forced to 553 00:32:38,320 --> 00:32:42,280 Speaker 1: remain in Mexico that can't be detained. Mexico is trying 554 00:32:42,320 --> 00:32:45,880 Speaker 1: to keep those numbers much smaller. And it's also mandating 555 00:32:45,920 --> 00:32:49,120 Speaker 1: that anybody waiting in Mexico has to have their case 556 00:32:49,200 --> 00:32:51,920 Speaker 1: heard for in at least six or sorry, at the 557 00:32:51,960 --> 00:32:54,920 Speaker 1: most six months, And so you can't do that if 558 00:32:54,920 --> 00:32:57,000 Speaker 1: you have hundreds of thousands of people in the system, 559 00:32:57,240 --> 00:32:58,760 Speaker 1: You're not gonna be able to hear all of those 560 00:32:58,800 --> 00:33:02,880 Speaker 1: folks case six months, which then leads to, Okay, what 561 00:33:02,920 --> 00:33:07,040 Speaker 1: would happen next if Texas then says, well, you're not 562 00:33:07,320 --> 00:33:13,080 Speaker 1: enforcing this injunction? Do does the court hold Biden administration 563 00:33:13,200 --> 00:33:16,640 Speaker 1: people in contempt? And I think this is where the 564 00:33:16,720 --> 00:33:20,320 Speaker 1: Court's got a bit incrediblous, which was, how are you 565 00:33:20,360 --> 00:33:23,840 Speaker 1: going to hold people in contempt for the fact that 566 00:33:23,920 --> 00:33:29,080 Speaker 1: Mexico isn't allowing you to enforce the Migration Protection Protocol 567 00:33:29,200 --> 00:33:32,600 Speaker 1: in this manner, which means either detain people or keep 568 00:33:32,640 --> 00:33:35,440 Speaker 1: them in Mexico. There will always be some number that 569 00:33:35,480 --> 00:33:38,080 Speaker 1: has to come to the United States because either Mexico 570 00:33:38,480 --> 00:33:41,800 Speaker 1: won't take them back or we don't have sufficient detention 571 00:33:41,840 --> 00:33:44,720 Speaker 1: capacity in the United States. And so the question is 572 00:33:44,800 --> 00:33:47,280 Speaker 1: what will that number be? What will be an acceptable 573 00:33:47,400 --> 00:33:50,000 Speaker 1: version of that number? And I think the Court, as 574 00:33:50,040 --> 00:33:53,960 Speaker 1: the grapple with, doesn't want to continue litigating that, because 575 00:33:54,000 --> 00:33:57,520 Speaker 1: that's what will happen is if that number gets too high, 576 00:33:57,960 --> 00:34:00,960 Speaker 1: there will be litigation about content of court and the 577 00:34:01,000 --> 00:34:05,240 Speaker 1: government violating the injunction or does it just want to say, look, 578 00:34:05,320 --> 00:34:08,640 Speaker 1: let's go back to the old system, however flawed it 579 00:34:08,680 --> 00:34:12,560 Speaker 1: may be, where this is a tool that can be used, 580 00:34:12,760 --> 00:34:15,520 Speaker 1: but it is not a tool that courts will require 581 00:34:16,000 --> 00:34:20,600 Speaker 1: administrations to you. Thanks so much, Leon, that's Leon Fresco 582 00:34:20,800 --> 00:34:21,680 Speaker 1: of Hollanden Knight