WEBVTT - Courts Delay Reopening and New Trump Census Fight 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.080 --> 0:00:09.080 A shooting last Sunday at New Jersey Federal judge Estra 0:00:09.160 --> 0:00:12.320 Salis's home that killed her son and wounded her husband 0:00:12.720 --> 0:00:17.280 highlights the threats to judges outside the courthouse. While attacks 0:00:17.320 --> 0:00:20.479 on federal judges and their families are rare, the U. S. 0:00:20.520 --> 0:00:25.079 Marshals Service, task with protecting about hundred federal judges and 0:00:25.160 --> 0:00:29.159 thirty thousand, three hundred other court officials, reported increases in 0:00:29.200 --> 0:00:33.760 threats and inappropriate communications against the judiciary in recent years. 0:00:34.120 --> 0:00:38.000 Joining me as Bloomberg Law reporter Madison Alder tell us 0:00:38.080 --> 0:00:43.960 about the suspect and his legal background. So, the suspect here, 0:00:44.600 --> 0:00:47.920 Roy Dun Hollander, is you know, a lawyer. He had 0:00:48.000 --> 0:00:51.400 some big law tighs um, but he hadn't worked for 0:00:51.440 --> 0:00:53.720 a big law firm in quite some time. And what 0:00:53.800 --> 0:00:56.880 we found at our research, she has now deceased by 0:00:56.920 --> 0:01:00.520 the way um. According to the Youth Attorney's Office in 0:01:00.560 --> 0:01:04.080 the districts of New Jersey, he was not apprehended. Some 0:01:04.160 --> 0:01:07.039 reports are saying that he was found of the potentially 0:01:07.040 --> 0:01:11.600 a self inflicted gunshot wound. And you know Hollander had 0:01:11.640 --> 0:01:16.640 a case before Sallas, this judge whose family was attacked. 0:01:17.000 --> 0:01:22.680 He appeared before her in case about the male only 0:01:22.840 --> 0:01:25.760 military draft. From what we can tell as the docket, 0:01:25.880 --> 0:01:29.480 he was physically before her in court. Um looks like 0:01:29.560 --> 0:01:34.880 once in and you know, maybe appeared by phone before that. 0:01:35.520 --> 0:01:39.959 Do we know if the judge was the target. We 0:01:40.040 --> 0:01:43.479 do not know yet. The Attorney General bar announced that 0:01:43.920 --> 0:01:45.679 there's going to be an investigation of this by the 0:01:45.720 --> 0:01:49.040 Marshall Service. You know, they're probably looking into that, but 0:01:49.120 --> 0:01:51.920 there haven't been further details on on if she was 0:01:52.080 --> 0:01:56.400 the target of attack. It we rarely hear about attacks 0:01:56.480 --> 0:02:01.400 on judges. How rare are they They're they're pretty rare. Um, 0:02:01.440 --> 0:02:04.000 They overall are are pretty rare over the years, though 0:02:04.000 --> 0:02:07.000 there there have been several They come to mind when 0:02:07.000 --> 0:02:10.640 another one happens again. Um, so you know there have 0:02:10.720 --> 0:02:13.799 been um at least four judges that have been killed 0:02:14.040 --> 0:02:17.720 in attacks. And then there's another case in two thousand's 0:02:17.760 --> 0:02:21.920 five where a judge's husband and mother were attacked in 0:02:22.000 --> 0:02:27.280 her home and that case actually prompted an appropriation by Congress. 0:02:27.320 --> 0:02:32.440 It's homarly dollars to fund security systems for judges and 0:02:32.639 --> 0:02:35.400 security systems for their homes. So you know, some of 0:02:35.440 --> 0:02:39.360 these attacks have prompted action by Congress before. You know, 0:02:39.400 --> 0:02:41.440 there hasn't been discussions of that this time. It is 0:02:41.440 --> 0:02:46.000 still early, but it isn't unprecedented that you know, security 0:02:46.080 --> 0:02:48.680 is heightened after an attack like this. Has there been 0:02:48.720 --> 0:02:53.520 a slight increase in violence against judges according to the 0:02:53.600 --> 0:02:57.400 Marshall's Office, So there haven't been an increase in violence 0:02:57.440 --> 0:03:01.480 against judges, but there has been an increase in incidents 0:03:01.560 --> 0:03:05.400 inappropriate communications and threats. They say that that has risen 0:03:05.440 --> 0:03:09.600 by more than In their budget submission, the Marshal Service 0:03:09.639 --> 0:03:14.200 budget submission for UM, they addressed this and you know 0:03:14.280 --> 0:03:17.440 said that they expected to rise steadily over the next 0:03:17.440 --> 0:03:20.040 few years. UM and they're saying that could come from 0:03:20.320 --> 0:03:24.040 complex thrusts is what they call them. Uh. So you 0:03:24.040 --> 0:03:27.280 know this is coming as you know, judges maybe are 0:03:27.360 --> 0:03:30.760 facing a little bit more turbulence when it comes to 0:03:30.800 --> 0:03:33.760 their their positions and the types of threast that they're getting. 0:03:34.280 --> 0:03:38.200 Aren't judges protected by the U. S. Marshal Service, they 0:03:38.240 --> 0:03:41.720 are UM the U S. Marshal Service. You know, I 0:03:41.720 --> 0:03:44.960 I spoke to one man who who used to be 0:03:45.720 --> 0:03:49.120 UH the U s Marshal John S. Mufflers, the former 0:03:49.120 --> 0:03:53.880 administrator chief Inspector of the National Center for Judicial Security, 0:03:54.000 --> 0:03:57.720 and he told me that these courts are fortresses. Um, 0:03:57.800 --> 0:04:03.960 they are very protected, but the more likely uh place 0:04:04.040 --> 0:04:09.120 for an attack, it's outside of the courtroom. So for judges, um, 0:04:09.200 --> 0:04:13.200 like any public figure, they're more likely subject to an 0:04:13.240 --> 0:04:16.000 attack when it is at their home at a place 0:04:16.000 --> 0:04:20.360 that they frequent um, grocery store. Um. And those are 0:04:20.400 --> 0:04:23.440 areas where they're they're always you have going to be 0:04:23.480 --> 0:04:26.040 on alerts. This is something that you know, judges are 0:04:26.080 --> 0:04:29.720 concerned about. Their concerned about this for their families. Um. 0:04:29.760 --> 0:04:31.839 You know, and it's supposed to people who said this 0:04:32.000 --> 0:04:37.279 particular situation seems like it was probably pretty unavoidable. You know. 0:04:37.320 --> 0:04:40.800 You can only do so much to to protect yourself 0:04:40.880 --> 0:04:43.640 outside of the court and protect your homes. Are they 0:04:43.680 --> 0:04:49.520 given protection at their homes? Yes, so there isn't necessarily 0:04:50.240 --> 0:04:54.559 martial service protection at their home. But um, this after 0:04:54.600 --> 0:04:58.560 that two thousand five attack on the judges on a 0:04:58.560 --> 0:05:03.679 federal judges family, Congress appropriated new new money to fund 0:05:04.080 --> 0:05:07.520 home security systems. So that is what judges um are 0:05:07.600 --> 0:05:10.720 able to have for their home security. Systems. Um, you know, 0:05:10.760 --> 0:05:14.359 they they can be protected that way, but um, it 0:05:14.480 --> 0:05:17.920 isn't necessarily you know, it's not like the Secret Service. 0:05:18.279 --> 0:05:21.280 You know, it's not like they have a bodyguard stationed 0:05:21.279 --> 0:05:24.680 outside of their house. And what about Supreme Court justices. 0:05:25.200 --> 0:05:28.640 Supreme Court sustices are a different story. They do have 0:05:28.720 --> 0:05:31.960 heightened protection where they go and you know, where they're speaking, 0:05:32.400 --> 0:05:35.039 but unfortunately, for a lot of lower court judges it's 0:05:35.040 --> 0:05:36.880 not the same. So there are quite a few of them, 0:05:37.000 --> 0:05:39.760 so I think it it becomes a matter of its 0:05:39.880 --> 0:05:42.279 essentially being a big lift to have that kind of 0:05:42.320 --> 0:05:46.240 security for every every lower court judge. Maddie, you spoke 0:05:46.320 --> 0:05:50.320 to retired federal judge David herned In, a former chair 0:05:50.360 --> 0:05:54.320 of the Judicial Conferences Committee on Judicial Security, and he 0:05:54.480 --> 0:05:57.479 said that the attack on the judge is home would 0:05:57.480 --> 0:06:00.160 have been difficult to prevent. And it's that kind the 0:06:00.279 --> 0:06:05.560 thing that judges have to worry about all the time. Right, Um, yeah, 0:06:05.640 --> 0:06:09.000 this is this is something that is a reality for 0:06:09.120 --> 0:06:12.719 judges that you know, it is rare that there are attacks, 0:06:12.800 --> 0:06:15.920 but um, you know, judges are in a position where 0:06:15.960 --> 0:06:21.360 they are dealing with really sensitive issues sometimes and um, 0:06:21.480 --> 0:06:23.400 you know that can that can put them in a 0:06:23.440 --> 0:06:26.480 position to be the subject of anger for people. Like 0:06:26.480 --> 0:06:29.360 we said, in this attack on on judge solves the family, 0:06:29.640 --> 0:06:31.839 we don't know if she was the subject, but in 0:06:31.920 --> 0:06:34.840 many of these other attacks, judges were the subject of 0:06:34.880 --> 0:06:37.800 the attack, and they were the subjective of some kind 0:06:37.800 --> 0:06:41.240 of Harvard anger. Um. So it's it's the reality of 0:06:41.240 --> 0:06:45.960 the job. Unfortunately, let's turn to the court houses themselves now. 0:06:46.360 --> 0:06:49.360 Federal and state courts have been struggling to figure out 0:06:49.400 --> 0:06:53.880 how to resume more normal operations while protecting public health 0:06:54.360 --> 0:06:57.480 after the pandemic forced them this spring to postpone jury 0:06:57.520 --> 0:07:02.160 trials and whole more proceedings remotely via video and audio. 0:07:03.000 --> 0:07:05.960 Courts have begun to reopen, but some courts are pumping 0:07:06.000 --> 0:07:10.880 the brakes on reopening efforts as COVID nineteen cases rise 0:07:11.080 --> 0:07:15.560 throughout much of the US. How many courts are pumping 0:07:15.560 --> 0:07:20.560 the brakes on reopening, Well, we've actually seen a few courts, 0:07:20.680 --> 0:07:25.960 um many federal courts sighting increases in their areas when 0:07:26.080 --> 0:07:29.640 they decided to extend their previous orders and say, you know, 0:07:29.680 --> 0:07:31.360 we're not going to be reopening. We're not going to 0:07:31.480 --> 0:07:35.560 restart in person operations. We've actually seen some pushback states 0:07:35.560 --> 0:07:40.000 for restarting things like dury trials UM fighting those increases 0:07:40.160 --> 0:07:44.480 in in cases UM. But in other areas, we are 0:07:44.560 --> 0:07:48.760 seeing a little bit of tension between courts UH, staff 0:07:48.840 --> 0:07:53.240 and lawyers in terms of reopening UM. You know, there 0:07:53.280 --> 0:07:55.720 have been a couple of lawsuits, there's been at least 0:07:55.720 --> 0:07:59.240 one OSHA complaint UM you know, and there's there's questions 0:07:59.480 --> 0:08:04.720 urgent about help and safety and standards to keep these 0:08:04.720 --> 0:08:09.560 courthouses safe for for workers and attorneys. Have any lawyers 0:08:09.720 --> 0:08:12.440 or lawyers groups said we don't want you to open 0:08:12.600 --> 0:08:15.400 the courts. We don't want to come back to the 0:08:15.400 --> 0:08:20.800 courthouse right now, or perhaps even victims or witnesses who 0:08:20.880 --> 0:08:23.520 have to testify don't want to come into that situation. 0:08:24.080 --> 0:08:26.240 So we have seen a little bit of pushback, and 0:08:26.400 --> 0:08:30.240 in New York that came to ahead when several public 0:08:30.240 --> 0:08:34.040 defender groups sued the federal or the state courts UM 0:08:34.559 --> 0:08:38.000 on July fourteenth, you know, saying that UM, this is 0:08:38.040 --> 0:08:40.480 a violation of the ad A to have in person 0:08:40.679 --> 0:08:43.800 hearings and require them, and the court push back on that, 0:08:43.960 --> 0:08:48.120 saying that in person hearings you know, aren't aren't they 0:08:48.120 --> 0:08:52.360 could be UM, they could be moved to a virtual 0:08:52.400 --> 0:08:56.880 proceeding if if that is something that the judge degrees upon. UM. 0:08:57.080 --> 0:09:00.200 But you know, public defender groups are are worried about 0:09:00.040 --> 0:09:03.160 us for themselves and their clients, and you know, they 0:09:03.160 --> 0:09:05.840 don't want their clients to be put in a position 0:09:05.840 --> 0:09:08.319 where they have to be called into court and potentially 0:09:08.679 --> 0:09:11.080 be put in contact with the of the virus in 0:09:11.559 --> 0:09:15.920 in the courtroom. And that actually followed another lawsuit from 0:09:16.280 --> 0:09:21.240 the Court Officers Union uh IN in New York, filed 0:09:21.440 --> 0:09:25.640 the beginning of July. And that lawsuit also alleges that 0:09:26.240 --> 0:09:30.920 the state courts didn't provide enough personal protective equipment and 0:09:31.000 --> 0:09:35.720 didn't provide enough sanitation to prevent people from getting sick. UM. 0:09:35.800 --> 0:09:38.160 So there are some there's some legal action on this 0:09:38.280 --> 0:09:41.880 in New York already. UM. I haven't seen legal action 0:09:41.960 --> 0:09:45.720 elsewhere in the country, but UM, New York is is now. 0:09:45.880 --> 0:09:49.600 You know, we'll see how these cases UH go forward. 0:09:50.040 --> 0:09:52.840 So what is this? What is the status of the 0:09:52.840 --> 0:09:55.640 courts in New York or any of them open yet? 0:09:56.880 --> 0:09:59.600 So the New York court system has been doing a 0:09:59.600 --> 0:10:06.440 garage suits reopening UM, and recently they started grand juries 0:10:06.480 --> 0:10:09.600 again and they are starting some in person operations, which 0:10:09.760 --> 0:10:13.320 was kind of the flashpoint for this lawsuit. That was 0:10:13.360 --> 0:10:17.000 when the public defenders wrote a letter to the New 0:10:17.080 --> 0:10:20.120 York State courts saying, you know, we don't feel comfortable 0:10:20.200 --> 0:10:23.480 with this, and then later filed the lawsuit. But you know, 0:10:23.559 --> 0:10:27.760 New York courts have they were they were pretty pretty 0:10:27.840 --> 0:10:30.640 much completely virtual for a period of time and then 0:10:30.960 --> 0:10:34.800 gradually started moving back to these uh in person operations. 0:10:36.200 --> 0:10:38.720 How did they work it out? Do they decide before 0:10:39.480 --> 0:10:42.960 trial or before hearings what's going to happen? Or do 0:10:43.040 --> 0:10:46.400 they just call them into the courthouse if you know? Um, 0:10:46.760 --> 0:10:50.000 you know what? I I don't know that, um. And yeah, 0:10:50.000 --> 0:10:54.160 that's a great question. Um. I think that a lot 0:10:54.200 --> 0:10:56.920 of these courts that it depends on the judge, it 0:10:56.920 --> 0:10:59.400 depends on the courtroom. UM. So it could be different 0:10:59.440 --> 0:11:02.679 case by taste. But you know, these are these are 0:11:02.760 --> 0:11:06.080 general orders and general guidance from the courts and the 0:11:06.120 --> 0:11:08.920 court system. UM. And I think that's what's being taken 0:11:08.920 --> 0:11:12.040 issue with right now. I imagine that the court officers, 0:11:12.080 --> 0:11:15.240 a lot of the court officers aren't so happy to 0:11:15.280 --> 0:11:18.760 be back in person, and and that is the that 0:11:18.880 --> 0:11:21.880 is the other lawsuit here is the court officers, and 0:11:21.920 --> 0:11:25.480 you know, they're saying that, uh, they weren't provided with 0:11:25.720 --> 0:11:30.480 the right amount of personal protective equipment. Of course, the 0:11:30.800 --> 0:11:35.480 court disputed that they said, you know, uh, they have 0:11:35.559 --> 0:11:40.040 provided tens of thousands of masks like loves and face shields. Um. 0:11:40.280 --> 0:11:44.040 But the court officers are saying that there have been 0:11:44.120 --> 0:11:46.880 union members who have actually died from this virus in 0:11:46.920 --> 0:11:50.400 New York and UM, you know that's the something that 0:11:50.400 --> 0:11:53.400 they're trying to prevent going forward, and something they're saying 0:11:53.440 --> 0:11:56.760 that the courts had a hand in. What are the 0:11:56.800 --> 0:12:00.080 new safety measures that the courts have inced to you 0:12:00.200 --> 0:12:04.200 did so, there are plenty of new safety measures across 0:12:04.200 --> 0:12:08.960 the country to respond to the reopening and in person operations. 0:12:09.000 --> 0:12:11.880 One of the most common ones that we're seeing is 0:12:12.280 --> 0:12:18.160 requiring masks for people requiring social distancing. Uh So, North 0:12:18.200 --> 0:12:22.080 Carolina's Supreme Court required maps in all courthouses throughout the state. 0:12:22.120 --> 0:12:26.200 It's also something that we're seeing very popular in federal courts. UM, 0:12:26.280 --> 0:12:30.040 for masks to be required in in public areas for 0:12:30.040 --> 0:12:33.640 for both courtgoers and for staff. Um. You know, there 0:12:33.679 --> 0:12:37.320 are also checks at the doors for courthouses, so they're 0:12:37.400 --> 0:12:41.480 they're testing people's temptsures, they're asking them some some health questions, 0:12:41.800 --> 0:12:44.360 UM to try to make sure that people aren't coming 0:12:44.400 --> 0:12:47.960 into the courthouse that they have you know, fever. UM. 0:12:48.160 --> 0:12:51.440 And then there are also some courthouses that are shutting 0:12:51.520 --> 0:12:54.280 down when they have a case of the virus in 0:12:54.320 --> 0:12:57.280 the courthouse. This was something we saw early on. Several 0:12:57.320 --> 0:13:02.040 courthouses had court workers UM and and court officers who 0:13:02.280 --> 0:13:05.880 were testing positive for the virus. So the courthouse tests down, 0:13:06.200 --> 0:13:09.400 they have the General Services Administration come in and and 0:13:09.520 --> 0:13:13.000 clean it out. That's the organization that helps the sanitation 0:13:13.240 --> 0:13:17.440 and administration of these buildings and UH it used to 0:13:17.600 --> 0:13:20.360 have them come in and help get the buildings ready 0:13:20.400 --> 0:13:24.280 for people to be there again. And we're seeing that 0:13:24.360 --> 0:13:27.480 again in in at least one area in the Northern 0:13:27.480 --> 0:13:31.880 District of Georgia closed its Gainsville courthouse on July fifteenth 0:13:32.000 --> 0:13:35.360 after a court officer tested positive for the virus. UH. 0:13:35.600 --> 0:13:39.439 They said that that courthouse will will be closed until 0:13:39.520 --> 0:13:42.040 they can clean it properly so they can get people 0:13:42.040 --> 0:13:45.520 back in. UM. So what we're seeing a few different 0:13:45.520 --> 0:13:50.480 measures happening across the country. New safety measures. UH. You know, 0:13:50.559 --> 0:13:53.439 I think a lot of courts and people entering them 0:13:53.480 --> 0:13:58.920 are are concerned about these environments where people are pushed 0:13:58.920 --> 0:14:01.719 together into the same room. And sometimes it's because they 0:14:01.840 --> 0:14:03.679 most of the time it's because they have to be there. 0:14:03.720 --> 0:14:05.880 It's not a choice. It's not like so many of 0:14:05.960 --> 0:14:07.960 these are the businesses we see where you can be 0:14:08.080 --> 0:14:11.679 there of your own accord. If you're in court, there 0:14:11.760 --> 0:14:14.160 is a matter that you have to resolve UM, and 0:14:14.200 --> 0:14:18.120 that's one of the major concerns for for courses that 0:14:18.600 --> 0:14:22.160 you know they are, they're dealing with a population that 0:14:23.240 --> 0:14:26.320 is forced into this environment. In your story, I read 0:14:26.400 --> 0:14:31.880 that they're encountering some resistance from independent minded judges. Tell 0:14:31.960 --> 0:14:36.040 us about that. So in Georgia, UM, the Chief Justice 0:14:36.040 --> 0:14:40.200 Harold Mountain, received a few complaints that judges UH in 0:14:40.240 --> 0:14:44.440 the state had violated health or safety guidelines, and I 0:14:44.480 --> 0:14:46.560 spoke to him. He said some of those some of 0:14:46.560 --> 0:14:49.280 those cases were true, some of them to him, didn't 0:14:49.280 --> 0:14:52.960 line up with what reality was UM, but he said 0:14:52.960 --> 0:14:57.920 he recognized the continuing issue that judges potentially weren't following 0:14:58.040 --> 0:15:01.000 guidelines UM or the percept and that they weren't following 0:15:01.000 --> 0:15:04.080 guidelines and so UM in an order on July tenth, 0:15:04.360 --> 0:15:07.360 he said, you know, we're going to make sure that 0:15:08.040 --> 0:15:11.760 people are following these safety guidelines for in person proceedings, 0:15:11.840 --> 0:15:15.360 and he encouraged these of video conference as well. Um, 0:15:15.440 --> 0:15:18.560 and he extended previous orders uh to make sure that 0:15:18.600 --> 0:15:21.440 measures that were already put in place by the court were, um, 0:15:21.520 --> 0:15:24.400 we're still in place. So you know, that's the other 0:15:24.440 --> 0:15:28.240 issue with a lot of of course, is that judges 0:15:28.320 --> 0:15:31.120 are pretty independent in their own courtrooms and the decisions 0:15:31.120 --> 0:15:34.160 that they can make. Uh. So making sure that all 0:15:34.160 --> 0:15:36.880 of those individual judges are are following these guidelines or 0:15:36.920 --> 0:15:40.480 every courtroom is addressing them the same is a challenge 0:15:40.520 --> 0:15:42.800 for courts. Thanks so much for being on the Bloomberg 0:15:42.840 --> 0:15:48.240 Laws Show, Maddie. That's Madison Alder, Bloomberg Law Reporter. It 0:15:48.360 --> 0:15:50.840 is essential that we have a clear breakdown of the 0:15:50.920 --> 0:15:54.240 number of citizens and non citizens that make up the 0:15:54.360 --> 0:15:58.840 US populations. And President Trump is not letting a Supreme 0:15:58.880 --> 0:16:02.040 Court decision stop him from his goal of ensuring that 0:16:02.240 --> 0:16:07.680 undocumented immigrants are not counted in. After the Supreme Court 0:16:07.680 --> 0:16:11.000 blocked the administration's effort to add a citizenship question to 0:16:11.080 --> 0:16:14.440 the census form last year, Trump ordered the census Bureau 0:16:14.520 --> 0:16:18.120 to gather citizenship data from the administrative records of federal 0:16:18.120 --> 0:16:21.600 and state agencies. Not only didn't I back down, I 0:16:21.720 --> 0:16:25.120 backed up because anybody else would have given this up 0:16:25.160 --> 0:16:28.280 a long time ago. The problem is we had three 0:16:28.440 --> 0:16:31.720 very unfriendly court That order is still being challenged in 0:16:31.760 --> 0:16:36.480 the courts. But Trump has already taken another step. On Tuesday, 0:16:36.520 --> 0:16:41.440 he signed a presidential memorandum to bar undocumented immigrants from 0:16:41.440 --> 0:16:44.520 being counted in the census, another move that's sure to 0:16:44.560 --> 0:16:48.640 be challenged in the courts on constitutional grounds. Joining EASi 0:16:48.680 --> 0:16:51.880 le On Fresco A partnered Holland and Knight, formerly the 0:16:51.920 --> 0:16:55.960 head of the Jostice Department's Office of Immigration Litigation. Leon 0:16:56.080 --> 0:16:59.160 is this memorandum away for President Trump to get around 0:16:59.200 --> 0:17:03.960 the Supreme Court decision blocking the citizenship question. Well, the 0:17:04.119 --> 0:17:09.879 idea originally of adding the citizenship questions to the census 0:17:10.160 --> 0:17:13.440 was to try to in some way get at this 0:17:13.560 --> 0:17:16.640 question of who wasn't a citizen so that they could 0:17:16.640 --> 0:17:21.080 be excluded from the census. And so now even though 0:17:21.080 --> 0:17:25.159 the citizenship question wasn't added to the census, what the 0:17:25.280 --> 0:17:27.679 Trump administration is trying to say as well, we have 0:17:27.800 --> 0:17:32.240 other ways of trying to determine who's here without status, 0:17:32.280 --> 0:17:35.480 and by using those other ways, I will then make 0:17:35.520 --> 0:17:37.919 an order that says I'm not going to council people 0:17:38.000 --> 0:17:41.760 towards the census. So does this presidential memorandum have the 0:17:41.840 --> 0:17:44.600 force of an executive order? This does not have the 0:17:44.640 --> 0:17:47.399 exact power of an executive order because the difference between 0:17:47.400 --> 0:17:50.800 a presidential memorandum and an executive order is as an 0:17:50.800 --> 0:17:53.880 executive order has to be published in the federal register, 0:17:54.600 --> 0:17:57.879 and there's ways you can procedurally challenge it for not 0:17:58.240 --> 0:18:01.479 be done properly. The President is saying, is I'm not 0:18:01.520 --> 0:18:05.440 making anything formal. I'm just issuing a policy memo that 0:18:05.560 --> 0:18:09.520 defines what a person is for the census as a 0:18:09.560 --> 0:18:14.120 person who is here with legal immigration status or a U. S. Citizen. 0:18:14.560 --> 0:18:18.359 It cannot be a person with undocumented status. And so 0:18:18.480 --> 0:18:21.560 he's just saying, that's just a policy memo that can't 0:18:21.600 --> 0:18:25.160 be then talaced in court, because I, the President, get 0:18:26.320 --> 0:18:29.560 power and authority to determine who a person is from 0:18:29.600 --> 0:18:32.680 the purposes of the centsive. Let's take the legal questions 0:18:32.720 --> 0:18:36.679 first and then the practical questions. The Constitution says that 0:18:36.760 --> 0:18:39.439 House districts shall be based on the whole number of 0:18:39.480 --> 0:18:45.760 persons in each state. What have courts interpreted that to mean? Well, 0:18:45.760 --> 0:18:48.440 what the course of interpret that to mean is that 0:18:48.480 --> 0:18:52.479 there's a difference between person and citizen in the United 0:18:52.520 --> 0:18:56.960 States Constitution. And sometimes the United States Constitution uses citizen 0:18:57.480 --> 0:19:00.480 and sometimes they uses person. And so to use this 0:19:00.600 --> 0:19:04.560 person it means person. It means any human being without 0:19:04.600 --> 0:19:08.760 regard to any sort of immigration statate. And so that's 0:19:08.840 --> 0:19:11.800 what the courts have met there. Now, you don't have 0:19:11.960 --> 0:19:15.960 to count people who are not subject to the jurisdiction 0:19:16.040 --> 0:19:19.040 of the US government. So who are those people? Diplomat 0:19:19.320 --> 0:19:22.119 people at the United NATed, people at the World Bank, 0:19:22.600 --> 0:19:26.119 the I M F, etcetera. So those individuals wouldn't be 0:19:26.119 --> 0:19:29.760 counted in the sensis, but other persons who are subjects 0:19:29.760 --> 0:19:33.320 to the jurisdiction of the United States government are counted 0:19:33.359 --> 0:19:38.280 in the census. We've had Attorneys General California and New 0:19:38.400 --> 0:19:41.920 York say that this is unconstitutional. The a c LU 0:19:42.119 --> 0:19:45.280 has said, we'll see him in court. We won last time, 0:19:45.320 --> 0:19:48.560 We're going to win again. What would be the basis 0:19:48.600 --> 0:19:52.920 of a lawsuit against this memorandum? So there's two basics 0:19:52.920 --> 0:19:56.240 for the lawsuit. One is procedural and one is substantive. 0:19:56.720 --> 0:19:59.480 The procedural basis for the lawsuit is to say that 0:19:59.560 --> 0:20:03.680 you can't do this via presidential memorandum, because this is 0:20:03.720 --> 0:20:07.240 actually a substantive change of the law. When you're defining 0:20:07.280 --> 0:20:10.520 who is a human being for the purposes of the census, 0:20:10.560 --> 0:20:13.040 you can't just do that in a policy memo that 0:20:13.119 --> 0:20:15.080 you just kind of whipped up in the middle of 0:20:15.119 --> 0:20:17.399 the day. It has to go through all of the 0:20:17.440 --> 0:20:22.159 formal rulemaking processes and have noticed the common and regulations, 0:20:22.160 --> 0:20:25.280 the things of this nature. It can't just be a 0:20:25.359 --> 0:20:29.119 memo like that. That's number one, but then substantively that 0:20:29.240 --> 0:20:32.800 the legal claim made in the memo, which is that 0:20:32.960 --> 0:20:37.080 undocumented individuals are not subject to being counted even though 0:20:37.080 --> 0:20:39.520 they may have been here ten years, twenty years, thirty 0:20:39.600 --> 0:20:42.960 years in the United States and thus are domiciled here 0:20:43.520 --> 0:20:47.080 for the purposes of the census, that there's no legal 0:20:47.119 --> 0:20:50.159 basis available for that contingments. Do you think this is 0:20:50.160 --> 0:20:53.080 a slam dunk case for the A C l U 0:20:53.480 --> 0:20:56.760 or the A G S. Yeah. I would be incredibly 0:20:56.880 --> 0:21:00.600 shocked if at the end of the day the plaists 0:21:00.600 --> 0:21:03.679 in this case did not prevail for the simple reason 0:21:03.800 --> 0:21:07.520 that when we want to talk about the context of originalism, 0:21:07.640 --> 0:21:10.320 back at the time of the Constitution, we didn't have 0:21:10.400 --> 0:21:13.880 all of these billions of different immigration statuses and who 0:21:13.960 --> 0:21:16.200 was a citizen, and who was a Green Guard older, 0:21:16.640 --> 0:21:22.000 and who was undocumented and who was in a transitionary status. 0:21:22.040 --> 0:21:23.840 I mean, right now, when you look at all of this, 0:21:24.400 --> 0:21:28.760 there's hundreds of different immigration statusies and some are influx 0:21:28.840 --> 0:21:31.960 and some aren't. And so that's why the census uses 0:21:32.000 --> 0:21:36.240 the word person, and the person means person. And so 0:21:36.359 --> 0:21:39.119 if you're gonna take person to mean something else now 0:21:39.560 --> 0:21:43.040 after you've been doing it one way for hundreds of years, 0:21:43.040 --> 0:21:47.639 that that new interpretation excluding persons will not be allowed 0:21:47.680 --> 0:21:51.280 to prevail. So let's look at this practically. Now, how 0:21:51.280 --> 0:21:56.399 would the administration actually determine the number of illegal immigrants 0:21:56.440 --> 0:22:01.320 in this country and in specific counties within the states. 0:22:01.480 --> 0:22:05.520 So this is actually a very interesting issue. There was 0:22:05.880 --> 0:22:09.800 all the way up till a document of the Department 0:22:09.840 --> 0:22:13.800 of Homeland Security would publish every year called Estimate of 0:22:13.880 --> 0:22:18.520 Undocumented Individuals in the United States, and the most recent 0:22:18.600 --> 0:22:21.560 one of those is about two years old. So that 0:22:21.560 --> 0:22:25.520 wouldn't be an accurate town. The Sense of Bureau itself, 0:22:25.560 --> 0:22:29.480 through the ACS surveys, has also tried to estimate the 0:22:29.760 --> 0:22:35.199 undocumented towns. But what's also fascinating about this, it's almost 0:22:35.200 --> 0:22:39.480 impossible to do because people continually on a daily basis, 0:22:39.480 --> 0:22:42.440 and I'm not talking about one person or two people. 0:22:42.480 --> 0:22:46.000 I'm talking about tens of thousands of people every day 0:22:46.160 --> 0:22:50.680 go in and out of undocumented status because they might 0:22:50.720 --> 0:22:53.440 have overstayed there visa by a day or two. They 0:22:53.520 --> 0:22:56.520 put in an application to fix this, this gets sick, 0:22:56.880 --> 0:22:59.600 or they put in an application to fix it before 0:22:59.640 --> 0:23:01.600 they were say but U S C I s A 0:23:01.640 --> 0:23:05.399 taken too long to renew it. So they're in undocumented 0:23:05.440 --> 0:23:08.560 status during the middle of the time while the application 0:23:08.680 --> 0:23:13.080 is pending, and so it's uncalculable. All of this would 0:23:13.080 --> 0:23:16.720 have to be an estimate, and when you're doing this estimate, 0:23:17.080 --> 0:23:20.199 it is subject to wild deviations, which is why you 0:23:20.320 --> 0:23:23.840 have some of the restrictionist immigration groups saying no, these 0:23:23.880 --> 0:23:27.239 numbers are in the twenty million range, and you have 0:23:27.400 --> 0:23:29.879 the Department of Homeland Security of the Sense of Bureau 0:23:30.240 --> 0:23:34.040 say no, it's between eleven and fourty million, and others 0:23:34.119 --> 0:23:36.280 say no, no, no no, no, no, in fact, a lot 0:23:36.280 --> 0:23:38.960 of people have returned to Mexico. And it's even less 0:23:39.000 --> 0:23:42.120 than that. The president's mental actually says, well, the president 0:23:42.240 --> 0:23:46.159 can just pick how many people are undocuments, And because 0:23:46.200 --> 0:23:49.879 of these wild deviations, that seems like the kind of 0:23:49.880 --> 0:23:53.400 thing that almost as too arbitrary for its own good. 0:23:54.000 --> 0:23:56.399 Even if the Census Bureau or the Department of Homeland 0:23:56.440 --> 0:24:01.280 Security could calculate the number of illegal miigrants in the country, 0:24:01.480 --> 0:24:05.360 how would they administer this? The President would just say, Okay, 0:24:05.359 --> 0:24:07.320 this is the number for this state, this is the 0:24:07.400 --> 0:24:10.400 number for that stay right. The way the executive Order 0:24:10.560 --> 0:24:14.400 reads the way this would work is if California had 0:24:14.440 --> 0:24:18.879 a population of sixty million people, as an example, and 0:24:18.920 --> 0:24:22.320 then the Department of Homeland Security, along with the Census Bureau, 0:24:22.800 --> 0:24:25.680 were to determine that there was a population of three 0:24:25.720 --> 0:24:30.080 million undocumented people in California, they would just abtract sixty 0:24:30.200 --> 0:24:34.520 by three and say, now California has fifty seven. But 0:24:34.600 --> 0:24:37.640 they'd also have to do it vias of each county. 0:24:37.840 --> 0:24:39.800 And I don't see how you can get to that 0:24:39.880 --> 0:24:43.760 granular level of data, because you know, the county formulas 0:24:43.880 --> 0:24:47.080 also matter in the senses as well, and not only 0:24:47.119 --> 0:24:49.840