1
00:00:02,759 --> 00:00:07,000
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

2
00:00:09,080 --> 00:00:12,040
Speaker 2: We've lost about one out of every five butterflies from

3
00:00:12,039 --> 00:00:16,160
Speaker 2: twenty to twenty twenty. Scientists released a new study last

4
00:00:16,200 --> 00:00:19,720
Speaker 2: month showing that in the last twenty years, nearly one

5
00:00:19,840 --> 00:00:23,239
Speaker 2: quarter of all butterflies have been wiped out, with the

6
00:00:23,280 --> 00:00:26,920
Speaker 2: loss of habitat being one of the major causes. It

7
00:00:27,000 --> 00:00:30,040
Speaker 2: was just at the end of last year, after years

8
00:00:30,040 --> 00:00:34,640
Speaker 2: of scientists warning that the number of monarch butterflies were shrinking,

9
00:00:34,800 --> 00:00:38,640
Speaker 2: that US Wildlife officials put the monarch butterfly on the

10
00:00:38,760 --> 00:00:42,239
Speaker 2: endangered species list. It's really quite troubling to see that

11
00:00:42,280 --> 00:00:45,720
Speaker 2: monarch populations are declining, and if there aren't enough flowers

12
00:00:45,720 --> 00:00:48,640
Speaker 2: to feed monarchs, imagine all the lesser known pollinators that

13
00:00:48,680 --> 00:00:51,200
Speaker 2: aren't getting the things that they need. But this month,

14
00:00:51,280 --> 00:00:55,280
Speaker 2: the Trump administration issued a proposed revision to the Endangered

15
00:00:55,320 --> 00:00:59,640
Speaker 2: Species Act that would cut nearly all habitat protections for

16
00:00:59,680 --> 00:01:05,080
Speaker 2: injured species like the monarch butterfly, the manage, the northern

17
00:01:05,120 --> 00:01:08,800
Speaker 2: spotted owl, the whooping crane, and the green sea turtle,

18
00:01:09,040 --> 00:01:11,720
Speaker 2: just to name a few. Turining me is environmental law

19
00:01:11,760 --> 00:01:14,920
Speaker 2: expert pat Parento A. Professor at the Vermont Law and

20
00:01:14,959 --> 00:01:19,559
Speaker 2: Graduate School. So that the Trump administration wants to scrap

21
00:01:19,959 --> 00:01:24,280
Speaker 2: how the government defines harm in the Endangered Species Act,

22
00:01:24,600 --> 00:01:28,880
Speaker 2: tell us how it's been defined since basically the Reagan administration.

23
00:01:29,319 --> 00:01:34,360
Speaker 1: So the Act prohibits was called take of protected species,

24
00:01:34,400 --> 00:01:37,959
Speaker 1: and take is further defined by a whole string of

25
00:01:38,080 --> 00:01:45,160
Speaker 1: verbs including kill, wound, trap, but also harm or harassed.

26
00:01:46,000 --> 00:01:50,240
Speaker 1: And it's those two words harm and harassed in the

27
00:01:50,320 --> 00:01:55,080
Speaker 1: Endangered Species Act of nineteen seventy three. That were new concepts,

28
00:01:55,480 --> 00:01:59,480
Speaker 1: and it took some time to define what those concepts meant.

29
00:02:00,120 --> 00:02:04,400
Speaker 1: But in regards to harm, there was a very critical

30
00:02:04,440 --> 00:02:08,600
Speaker 1: decision issued way back in the early nineteen eighties actually

31
00:02:09,120 --> 00:02:11,799
Speaker 1: by the Ninth Circuit Court of Appeals in a case

32
00:02:11,840 --> 00:02:16,160
Speaker 1: out of Hawaii involving the Palila bird, an endangered bird,

33
00:02:16,200 --> 00:02:22,000
Speaker 1: which ruled that destruction of habitat constitutes harm. And as

34
00:02:22,040 --> 00:02:25,880
Speaker 1: a result of that decision, the Department of Interior under

35
00:02:26,040 --> 00:02:31,680
Speaker 1: then Secretary Babbitt promulgated this rule, defining harm to mean

36
00:02:32,200 --> 00:02:39,880
Speaker 1: actions including habitat modification that actually kills or injures listed

37
00:02:39,919 --> 00:02:47,440
Speaker 1: species by interfering with essential behavioral conditions like breeding, feeding,

38
00:02:47,680 --> 00:02:52,320
Speaker 1: and sheltering. So it's a long definition, but its bottom

39
00:02:52,400 --> 00:02:57,400
Speaker 1: line is the court's ruled that habitat loss is a

40
00:02:57,560 --> 00:03:03,160
Speaker 1: take is prohibited under the d Species Act. Congress subsequently,

41
00:03:03,320 --> 00:03:07,720
Speaker 1: after the Polila case, enacted an amendment to the Endangered

42
00:03:07,760 --> 00:03:10,680
Speaker 1: Species Act in nineteen eighty two. I was there, I

43
00:03:10,760 --> 00:03:16,519
Speaker 1: testified on this, which said, Okay, to protect landowner from

44
00:03:16,760 --> 00:03:20,360
Speaker 1: finding themselves in violation of the Act, we're going to

45
00:03:20,400 --> 00:03:24,720
Speaker 1: create a special permit process, which is called the incidental

46
00:03:25,160 --> 00:03:29,160
Speaker 1: take permit, and we're going to require that landowners, if

47
00:03:29,160 --> 00:03:32,120
Speaker 1: they want one of these permits, come up with a

48
00:03:32,240 --> 00:03:38,000
Speaker 1: habitat conservation plan to mitigate an offset the loss of

49
00:03:38,040 --> 00:03:42,640
Speaker 1: habitat for the activity logging, mining, grazing, all kinds of

50
00:03:42,680 --> 00:03:46,720
Speaker 1: activity that would result in loss of habitat. So the

51
00:03:46,760 --> 00:03:51,360
Speaker 1: point is this harm rule has a very long history,

52
00:03:52,320 --> 00:03:57,200
Speaker 1: and it's one that Congress deliberately codified in the Endangered

53
00:03:57,240 --> 00:04:00,760
Speaker 1: Species Act. That's why they created the permit for So

54
00:04:00,840 --> 00:04:05,400
Speaker 1: the idea now that you would eliminate the definition of

55
00:04:05,480 --> 00:04:08,240
Speaker 1: harm just rescind it, wipe it off the books, and

56
00:04:08,240 --> 00:04:11,840
Speaker 1: not replace it, which is what is being proposed by

57
00:04:11,880 --> 00:04:16,360
Speaker 1: Secretary Bergham. It's crazy, I mean it flies in the faith.

58
00:04:16,880 --> 00:04:21,560
Speaker 1: What's the surprise here of this whole history of how

59
00:04:22,120 --> 00:04:26,960
Speaker 1: the courts and Congress have dealt with this critical idea

60
00:04:27,480 --> 00:04:31,880
Speaker 1: of protecting habitat. When you think about it, habitat loss

61
00:04:32,120 --> 00:04:37,080
Speaker 1: is the major driver of extinction in the United States

62
00:04:37,560 --> 00:04:41,360
Speaker 1: and globally. So to just eliminate it from the one

63
00:04:41,480 --> 00:04:46,039
Speaker 1: law that's designed to prevent extinction, it's really nut the

64
00:04:46,080 --> 00:04:47,039
Speaker 1: proposed change.

65
00:04:47,520 --> 00:04:51,320
Speaker 2: Are they saying it's because of the Supreme Court's decision

66
00:04:51,360 --> 00:04:54,040
Speaker 2: in Low or Bright eliminating the Chevron.

67
00:04:53,720 --> 00:04:57,839
Speaker 1: Doctrine, Well they are. The irony, of course, is the

68
00:04:58,000 --> 00:05:00,880
Speaker 1: United States Supreme Court, in a very very famous case

69
00:05:00,920 --> 00:05:04,560
Speaker 1: which I submitted an amicus brief on behalf of E. O. Wilson,

70
00:05:04,600 --> 00:05:08,320
Speaker 1: the late great conservation biologists, the biologist, by the way,

71
00:05:08,640 --> 00:05:11,520
Speaker 1: who first warn the world that we were in an

72
00:05:11,560 --> 00:05:14,919
Speaker 1: era of extinction. It was his work way back in

73
00:05:14,960 --> 00:05:19,040
Speaker 1: the sixties that identified the loss of habitat as the

74
00:05:19,080 --> 00:05:22,760
Speaker 1: main driver of extinction. Right, So we filed this brief

75
00:05:22,960 --> 00:05:26,080
Speaker 1: in a case called sweet Home versus Babbitt, in which

76
00:05:26,120 --> 00:05:28,960
Speaker 1: the US Supreme Court upheld by a sixty to three

77
00:05:29,040 --> 00:05:32,279
Speaker 1: vote the harm rule that I just described. Right, So,

78
00:05:33,080 --> 00:05:38,279
Speaker 1: now you have the Trump administration saying, yeah, but the

79
00:05:38,320 --> 00:05:42,360
Speaker 1: Supreme Court has overruled Chevron, which means, of course that

80
00:05:42,480 --> 00:05:46,600
Speaker 1: the Supreme Court's decision in Sweet Home is no longer controlling.

81
00:05:46,680 --> 00:05:49,839
Speaker 1: But wait a minute. When you read Chief Justice Roberts's

82
00:05:49,839 --> 00:05:55,080
Speaker 1: opinion in Low for Bright, he specifically says that decisions

83
00:05:55,120 --> 00:06:00,160
Speaker 1: that have upheld rules based on Chevron are still in effect. Yea,

84
00:06:00,960 --> 00:06:05,120
Speaker 1: So now you have the Trump administration saying, well, but

85
00:06:05,160 --> 00:06:08,880
Speaker 1: we're going to change the rule by eliminating it for harm,

86
00:06:09,240 --> 00:06:14,400
Speaker 1: and therefore we don't have to give the prior interpretation

87
00:06:14,839 --> 00:06:18,840
Speaker 1: any significance, any difference at all. But that's not what

88
00:06:18,960 --> 00:06:23,479
Speaker 1: Robert said. He said that prior decisions based on Chevron

89
00:06:23,560 --> 00:06:29,360
Speaker 1: defference are entitled to what are called statutory starry decisives,

90
00:06:29,360 --> 00:06:32,920
Speaker 1: in other words, precedent right. And he made it clear

91
00:06:33,000 --> 00:06:35,800
Speaker 1: that it wasn't just a matter of saying, oh, well,

92
00:06:35,839 --> 00:06:39,679
Speaker 1: never mind that a rule was formally upheld. He said,

93
00:06:40,040 --> 00:06:43,560
Speaker 1: you have to justify, you know, new decisions to change

94
00:06:43,560 --> 00:06:49,200
Speaker 1: your rule under the usual requirements of reversing prior rules, right,

95
00:06:49,240 --> 00:06:53,120
Speaker 1: which is what we call the state farm doctrine, which

96
00:06:53,200 --> 00:06:57,760
Speaker 1: means you have to justify repealing a rule based on

97
00:06:58,000 --> 00:07:04,240
Speaker 1: change of circumstances, new facts, something has happened that justify

98
00:07:05,000 --> 00:07:11,120
Speaker 1: rethinking why the original rule should be completely reversed. But again,

99
00:07:11,880 --> 00:07:15,480
Speaker 1: all of the evidence suggests there's no basis for eliminating

100
00:07:15,760 --> 00:07:20,360
Speaker 1: habitat protection from the Protections of the Endangered Species Act.

101
00:07:20,600 --> 00:07:24,480
Speaker 1: If anything, what we're seeing is that habitat loss is

102
00:07:24,600 --> 00:07:30,400
Speaker 1: now affecting all species. You know. The Cornell Lab, you know,

103
00:07:30,440 --> 00:07:36,040
Speaker 1: the famous ornithological lab at Cornell University, issued an incredible

104
00:07:36,320 --> 00:07:42,480
Speaker 1: decision this last year saying three billion birds three billion

105
00:07:42,560 --> 00:07:47,440
Speaker 1: birds have disappeared from the United States since nineteen seventy

106
00:07:47,880 --> 00:07:52,640
Speaker 1: and that's primarily related to habitat loss. Pesticides and other

107
00:07:52,680 --> 00:07:56,840
Speaker 1: things come into play. Habitat loss is the reason that

108
00:07:56,840 --> 00:08:02,360
Speaker 1: we're losing our incredible array of species. So this idea

109
00:08:03,280 --> 00:08:08,480
Speaker 1: that the local Bright decision somehow justifies eliminating protection for

110
00:08:08,600 --> 00:08:12,200
Speaker 1: habitat is once again crazy.

111
00:08:12,560 --> 00:08:17,040
Speaker 2: So the Center for Biological Diversity issued a report identifying

112
00:08:17,160 --> 00:08:20,480
Speaker 2: ten endangered animals at risk from this proposal by the

113
00:08:20,520 --> 00:08:26,240
Speaker 2: Trump administration. They include the whooping crane, monarch, butterflies, manatees,

114
00:08:26,440 --> 00:08:31,000
Speaker 2: the northern spotted owl, the Florida panther, desert tortoises, etc.

115
00:08:31,840 --> 00:08:35,040
Speaker 2: And a lot of those are very popular species that

116
00:08:35,520 --> 00:08:38,160
Speaker 2: most of the public would probably want to protect.

117
00:08:39,040 --> 00:08:44,160
Speaker 1: Right at one time, you could measure the abundance of

118
00:08:44,200 --> 00:08:49,160
Speaker 1: monarch butterflies in the billions, and the western population of

119
00:08:49,240 --> 00:08:53,480
Speaker 1: monarch butterflies has been reduced by I think something like

120
00:08:53,520 --> 00:08:58,320
Speaker 1: eighty percent maybe more and is really in danger of extinction.

121
00:08:58,640 --> 00:09:02,720
Speaker 1: It's incredible to say that butterflies that used to light

122
00:09:02,840 --> 00:09:05,679
Speaker 1: up the landscape all across the United States. I mean,

123
00:09:05,720 --> 00:09:07,760
Speaker 1: we have them right here in our fields at are

124
00:09:08,080 --> 00:09:10,839
Speaker 1: place here in Vermont, not as many as we used

125
00:09:10,840 --> 00:09:14,360
Speaker 1: to have, but still it's like the passenger pigeons, right,

126
00:09:14,520 --> 00:09:17,440
Speaker 1: Flocks of passenger pigeons, history says, used to darken the

127
00:09:17,440 --> 00:09:21,840
Speaker 1: skies throughout much of the central part of the United States.

128
00:09:21,920 --> 00:09:25,040
Speaker 1: And then just we're gone, and we're seeing the same

129
00:09:25,080 --> 00:09:28,839
Speaker 1: thing with species like monarch butterflies. And we've got an

130
00:09:28,840 --> 00:09:33,360
Speaker 1: administration you know, that wants to eliminate the one law

131
00:09:33,720 --> 00:09:36,960
Speaker 1: that's designed to prevent that, or to substantially weaken it,

132
00:09:37,000 --> 00:09:41,160
Speaker 1: if not eliminate it. It's really quite remarkable.

133
00:09:41,880 --> 00:09:47,559
Speaker 2: So would this Trump administration change limit the Endangered Species

134
00:09:47,600 --> 00:09:52,199
Speaker 2: Act to prohibiting only intentional direct killings.

135
00:09:51,640 --> 00:09:56,680
Speaker 1: Of animals, right, And that's what Justice Scalia's descent in

136
00:09:56,760 --> 00:10:01,600
Speaker 1: this Sweet Home decision said, is that you can only

137
00:10:01,679 --> 00:10:04,920
Speaker 1: interpret harm in the same way that you interpret the

138
00:10:05,040 --> 00:10:10,360
Speaker 1: verb kill. So to kill means direct impact on the

139
00:10:10,400 --> 00:10:15,640
Speaker 1: individual animal, as Scalia famously put it, a strikes B.

140
00:10:16,480 --> 00:10:22,199
Speaker 1: But in her concurring opinion in Sweet Home, Justice O'Connor that, now,

141
00:10:22,200 --> 00:10:26,320
Speaker 1: wait a minute, eliminating the ability of a species to

142
00:10:26,440 --> 00:10:31,200
Speaker 1: reproduce is the essential kinds of injury. How can you

143
00:10:31,320 --> 00:10:37,080
Speaker 1: say that only a strikes B constitutes harm, you know,

144
00:10:37,280 --> 00:10:42,319
Speaker 1: eliminating the breeding habitat of species and their ability to reproduce,

145
00:10:42,920 --> 00:10:48,400
Speaker 1: essentially eliminating the species. So it was a fascinating interchange

146
00:10:48,840 --> 00:10:51,959
Speaker 1: between O'Connor and Scalia, not the first to last, by

147
00:10:51,960 --> 00:10:55,720
Speaker 1: the way of those who disagreeing in print, sometimes quite

148
00:10:55,880 --> 00:10:59,839
Speaker 1: tartly over how to interpret a statutory term. So once again,

149
00:11:00,000 --> 00:11:04,800
Speaker 1: and this whole idea that only things that directly affect

150
00:11:04,800 --> 00:11:08,559
Speaker 1: the species is ignoring what the science is telling us

151
00:11:08,880 --> 00:11:13,000
Speaker 1: is the major reason we're driving species extinct.

152
00:11:14,120 --> 00:11:17,280
Speaker 2: So then do you think that when this is challenged

153
00:11:17,280 --> 00:11:21,440
Speaker 2: in the courts, that the administration will lose?

154
00:11:22,640 --> 00:11:26,920
Speaker 1: Yes, they should and they will. Now, when it finally

155
00:11:26,920 --> 00:11:29,920
Speaker 1: goes back to the Supreme Court, we'll actually see whether

156
00:11:30,240 --> 00:11:34,400
Speaker 1: Justice Roberts you know, sort of caution in the Lower

157
00:11:34,520 --> 00:11:37,160
Speaker 1: Bright case stands up. In other words, is he going

158
00:11:37,280 --> 00:11:40,920
Speaker 1: to look at this question of can you just simply

159
00:11:41,280 --> 00:11:45,400
Speaker 1: wave your hand, you know, and eliminate this harm rule

160
00:11:45,840 --> 00:11:49,400
Speaker 1: without any justification at all other than to say we

161
00:11:49,480 --> 00:11:52,400
Speaker 1: don't think it's the single best reading of the statue.

162
00:11:52,600 --> 00:11:56,080
Speaker 1: That's the rationale that the Trump administration is using to

163
00:11:56,120 --> 00:12:00,240
Speaker 1: repeal the harm rule. You know, the single best interpretationation,

164
00:12:00,679 --> 00:12:05,280
Speaker 1: says the Trump administration is Kalia's descent in sweet Home.

165
00:12:05,600 --> 00:12:08,240
Speaker 1: So when this thing finally if it does, then it

166
00:12:08,320 --> 00:12:11,840
Speaker 1: may not get back to the Supreme Court. We'll actually

167
00:12:12,040 --> 00:12:15,760
Speaker 1: see whether or not just saying we're going to repeal

168
00:12:15,880 --> 00:12:19,880
Speaker 1: a rule because in our view, the Trump administration view,

169
00:12:20,200 --> 00:12:23,679
Speaker 1: it's not the best reading of the statute can prevail.

170
00:12:24,480 --> 00:12:26,959
Speaker 1: And by the way, you know, the Trump administration is

171
00:12:27,000 --> 00:12:29,800
Speaker 1: not going to get any difference for that interpretation either.

172
00:12:29,960 --> 00:12:33,840
Speaker 1: That is the central message of Loper Bright. Nobody, no

173
00:12:33,960 --> 00:12:38,679
Speaker 1: agency gets difference anymore under Lower Bright, including Trump.

174
00:12:39,120 --> 00:12:43,480
Speaker 2: After the biotech and genetic engineering company said it successfully

175
00:12:43,640 --> 00:12:48,800
Speaker 2: created three dire wolf puppies. The Secretary of the Interior,

176
00:12:48,880 --> 00:12:51,280
Speaker 2: Doug Bergham, said, the only thing we'd like to see

177
00:12:51,280 --> 00:12:54,480
Speaker 2: go extinct is the need for an endangered species list

178
00:12:54,559 --> 00:12:58,240
Speaker 2: to exist. He compared it to Hotel California, where once

179
00:12:58,280 --> 00:12:59,720
Speaker 2: you're on the list, you never get out.

180
00:13:00,800 --> 00:13:01,199
Speaker 3: Wow.

181
00:13:02,280 --> 00:13:06,680
Speaker 1: So the dire wolf story, it turns out those aren't

182
00:13:06,720 --> 00:13:13,199
Speaker 1: dire wolves. They're an amalgamation of genetic manipulation of different

183
00:13:13,679 --> 00:13:18,320
Speaker 1: painted species. If you really look behind the headlines of

184
00:13:18,360 --> 00:13:22,360
Speaker 1: that story, not the dire wolf, get the knockoffs. It's

185
00:13:22,400 --> 00:13:26,120
Speaker 1: a Hollywood production of a dire wolf. That's not what

186
00:13:26,200 --> 00:13:31,480
Speaker 1: we're talking about with endangered species conservation. The original Act

187
00:13:32,200 --> 00:13:38,440
Speaker 1: in nineteen seventy three had some incredible observations, really profound observations,

188
00:13:38,480 --> 00:13:44,720
Speaker 1: things like in danger, species hold answers to questions we

189
00:13:44,880 --> 00:13:50,000
Speaker 1: haven't even learned how to ask. I mean, it was

190
00:13:50,040 --> 00:13:53,559
Speaker 1: really profound, right. It was like the driver of evolution

191
00:13:53,720 --> 00:13:58,400
Speaker 1: on Earth is speciation and the way that species adapt.

192
00:13:58,520 --> 00:14:03,199
Speaker 1: And of course nine of the species that ever existed

193
00:14:03,600 --> 00:14:07,520
Speaker 1: on the Earth are extinct, so extinction is a part

194
00:14:08,040 --> 00:14:13,200
Speaker 1: of the natural process. But the difference is human caused extinction,

195
00:14:13,720 --> 00:14:18,720
Speaker 1: which again EO. Wilson and others documented and proved was

196
00:14:18,960 --> 00:14:23,840
Speaker 1: accelerating at sometimes one hundred times and other times even

197
00:14:23,920 --> 00:14:28,200
Speaker 1: a thousand times greater than what they called the background

198
00:14:28,560 --> 00:14:32,160
Speaker 1: rate of extinction, which is sort of the natural evolution

199
00:14:32,840 --> 00:14:37,040
Speaker 1: of species on Earth. Right, So this idea that we

200
00:14:37,240 --> 00:14:42,400
Speaker 1: can recreate species, this sort of Jurassic Park notion that

201
00:14:42,440 --> 00:14:45,480
Speaker 1: we don't need to preserve the natural diversity of the Earth,

202
00:14:45,880 --> 00:14:49,560
Speaker 1: the natural process of evolution, that we can invent species

203
00:14:49,600 --> 00:14:52,880
Speaker 1: whenever we feel like it really is a Hollywood idea.

204
00:14:53,160 --> 00:14:56,360
Speaker 1: It has nothing to do with science, nothing to do

205
00:14:56,560 --> 00:15:01,600
Speaker 1: with the fact that you know, natural species, including insects,

206
00:15:01,600 --> 00:15:05,440
Speaker 1: which are in great decline, are incredibly important as we know,

207
00:15:06,040 --> 00:15:09,080
Speaker 1: to human survival on the Earth. Scientists are saying, if

208
00:15:09,440 --> 00:15:12,600
Speaker 1: we continue on the path that we're continuing to drive

209
00:15:12,760 --> 00:15:17,720
Speaker 1: more and more just simply insects species to extinction, we're

210
00:15:17,760 --> 00:15:22,040
Speaker 1: going to have tremendous impacts on pollination, tremendous impacts on

211
00:15:22,120 --> 00:15:25,120
Speaker 1: food supply. And you can do the same thing with

212
00:15:25,200 --> 00:15:29,160
Speaker 1: the oceans. You destroy the coral reefs. That's a third

213
00:15:29,320 --> 00:15:32,440
Speaker 1: of the marine biodiversity on Earth. When you think about

214
00:15:32,560 --> 00:15:35,560
Speaker 1: all of the protein that we get from the oceans,

215
00:15:35,840 --> 00:15:40,800
Speaker 1: that depend on natural systems, natural organisms that are attracted

216
00:15:40,800 --> 00:15:46,160
Speaker 1: to coral reefs. You're just inviting catastrophe when you suggest

217
00:15:46,200 --> 00:15:49,880
Speaker 1: that we don't have to be concerned with preserving the

218
00:15:49,960 --> 00:15:51,720
Speaker 1: natural history of the world.

219
00:15:52,200 --> 00:15:57,320
Speaker 2: Is this all about making it easier for oil and

220
00:15:57,440 --> 00:16:01,320
Speaker 2: gas producers? What's the goal of the Trump administration.

221
00:16:02,280 --> 00:16:07,280
Speaker 1: Yeah, I mean it's property rights, it's landowner rights in part.

222
00:16:07,840 --> 00:16:11,040
Speaker 1: Although what we've seen with the Harm rule in place

223
00:16:11,960 --> 00:16:15,600
Speaker 1: is that there have been millions, more than twenty million

224
00:16:15,600 --> 00:16:20,680
Speaker 1: acres of land, private lands that have been conserved under

225
00:16:20,720 --> 00:16:25,440
Speaker 1: this incidental take permit program I mentioned, and allowed logging

226
00:16:25,520 --> 00:16:31,520
Speaker 1: and mining and other activities to occur, just with offsetting mitigation.

227
00:16:31,960 --> 00:16:37,880
Speaker 1: So it's not true that the Harm rule has prevented

228
00:16:38,480 --> 00:16:44,400
Speaker 1: anything anything. There's no evidence that any landowner has suffered

229
00:16:44,400 --> 00:16:49,080
Speaker 1: what's called a taking, a constitutional taking of property as

230
00:16:49,120 --> 00:16:52,960
Speaker 1: a result of the Endangered Species Act. Never, never, So

231
00:16:53,320 --> 00:16:57,280
Speaker 1: the whole idea that you have to eliminate this one

232
00:16:57,400 --> 00:17:03,000
Speaker 1: mechanism of protection is simply wrong. There's no fact, no evidence.

233
00:17:03,120 --> 00:17:06,240
Speaker 1: If you look at the proposed rule to resind the

234
00:17:06,320 --> 00:17:08,560
Speaker 1: Harm rule in the Federal Register, and by the way,

235
00:17:09,040 --> 00:17:11,800
Speaker 1: the comment period is still open until May nineteenth. For

236
00:17:11,880 --> 00:17:14,880
Speaker 1: those who are interested in that, you can go look

237
00:17:14,920 --> 00:17:18,800
Speaker 1: at it. It's a very short statement. We're simply repealing

238
00:17:19,359 --> 00:17:22,560
Speaker 1: the harm rule. We're not replacing it. We're just pretending

239
00:17:22,600 --> 00:17:25,480
Speaker 1: like we're going to erase the word from the statute,

240
00:17:25,760 --> 00:17:31,000
Speaker 1: which of course violate canon number one of statutory interpretation,

241
00:17:31,200 --> 00:17:36,360
Speaker 1: which is every word of a statute must be given effect.

242
00:17:36,800 --> 00:17:40,280
Speaker 1: You don't just erase it because you find it difficult

243
00:17:40,440 --> 00:17:43,760
Speaker 1: or whatever. You have to do something with it. And

244
00:17:44,080 --> 00:17:46,679
Speaker 1: the proposal is to do nothing with it, to just

245
00:17:47,000 --> 00:17:49,080
Speaker 1: erase it as if it never existed.

246
00:17:50,400 --> 00:17:54,280
Speaker 2: So would this move by the Trump administration, would it

247
00:17:54,400 --> 00:17:56,720
Speaker 2: got the Endangered Species Act?

248
00:17:57,200 --> 00:18:01,840
Speaker 1: It would drive a huge hole through the Act, for sure.

249
00:18:02,119 --> 00:18:05,600
Speaker 1: There are other reasons why the Act still you know,

250
00:18:05,680 --> 00:18:11,199
Speaker 1: provides protection. It still requires consultation, although there's another you know,

251
00:18:11,240 --> 00:18:14,520
Speaker 1: Burghum directive now saying that we're going to shorten up

252
00:18:14,560 --> 00:18:19,679
Speaker 1: the time for consultation. When a proposed activity oil and

253
00:18:19,760 --> 00:18:23,680
Speaker 1: gas leasing for example, or other forms of fossil fuel development,

254
00:18:23,880 --> 00:18:27,479
Speaker 1: where that threatens an endangered species, there's a requirement that

255
00:18:27,520 --> 00:18:31,399
Speaker 1: there be consultation. And there's still a provision that says

256
00:18:31,400 --> 00:18:34,320
Speaker 1: if an action would jeopardize a species, it can't go

257
00:18:34,480 --> 00:18:37,720
Speaker 1: forward unless it gets an exemption and so forth. But

258
00:18:38,160 --> 00:18:42,679
Speaker 1: the point is by taking out the central protective mechanism

259
00:18:42,720 --> 00:18:49,560
Speaker 1: of the Act, the take prohibition applies to everyone, private parties, state,

260
00:18:49,920 --> 00:18:55,680
Speaker 1: tribal entities, counties. I mean, it's the most comprehensive provision

261
00:18:55,720 --> 00:18:59,440
Speaker 1: in the Act that protect species no matter where they are,

262
00:18:59,480 --> 00:19:03,560
Speaker 1: whether or not federal land or not private land, state land,

263
00:19:03,640 --> 00:19:07,159
Speaker 1: or wherever they are, they're protected by the take prohibition

264
00:19:07,640 --> 00:19:09,840
Speaker 1: and this incidental take permit process.

265
00:19:09,960 --> 00:19:10,200
Speaker 4: Right.

266
00:19:10,680 --> 00:19:15,200
Speaker 1: So it's a really central mechanism of the law. It's

267
00:19:15,280 --> 00:19:17,480
Speaker 1: not the only one, and it doesn't mean that the

268
00:19:17,560 --> 00:19:21,919
Speaker 1: law would simply disappear without it, but the ability to

269
00:19:22,040 --> 00:19:26,040
Speaker 1: protect habitat on non federal lands, which is where most

270
00:19:26,040 --> 00:19:29,280
Speaker 1: of the habitat is, would be severely diminished.

271
00:19:29,560 --> 00:19:30,919
Speaker 2: There's a lot at stake here.

272
00:19:31,560 --> 00:19:34,119
Speaker 1: I don't think this one is going to survive. I

273
00:19:34,160 --> 00:19:36,639
Speaker 1: really don't. But the point is we're going to have

274
00:19:36,720 --> 00:19:41,280
Speaker 1: to fight about it for years instead of moving forward

275
00:19:41,760 --> 00:19:45,679
Speaker 1: with making the laws work better. And certainly there's ways

276
00:19:45,680 --> 00:19:48,679
Speaker 1: of improving the way the Endangered Species Act works to

277
00:19:48,800 --> 00:19:51,720
Speaker 1: make it more effective at recovery, for example, and to

278
00:19:51,800 --> 00:19:55,640
Speaker 1: provide more incentives for landowners. That's fine, you know, let's

279
00:19:55,680 --> 00:19:59,679
Speaker 1: have that conversation. But just going backwards that's not going

280
00:19:59,720 --> 00:20:00,520
Speaker 1: to help anything.

281
00:20:00,800 --> 00:20:03,760
Speaker 2: We'll see what happens after the notice and comment period

282
00:20:03,840 --> 00:20:05,520
Speaker 2: is over. Thanks so much.

283
00:20:05,600 --> 00:20:05,919
Speaker 3: Pat.

284
00:20:06,400 --> 00:20:10,000
Speaker 2: That's Professor Pat Parento of the Vermont Law and Graduate School.

285
00:20:10,440 --> 00:20:14,560
Speaker 2: The Trump administration's immigration moves have been in the headlines.

286
00:20:15,240 --> 00:20:18,680
Speaker 2: Last Friday, it was the FBI's arrest of a Wisconsin

287
00:20:18,800 --> 00:20:25,000
Speaker 2: judge for allegedly helping an undocumented immigrant evade ICE borders

288
00:20:25,040 --> 00:20:27,600
Speaker 2: are Tom Homan defended the arrest.

289
00:20:27,880 --> 00:20:30,120
Speaker 5: You can sit aside and watch you. You can argue

290
00:20:30,119 --> 00:20:32,520
Speaker 5: against us, always want, and protest all you want. But

291
00:20:32,560 --> 00:20:34,439
Speaker 5: when you cross that line. I've said this to a

292
00:20:34,480 --> 00:20:38,200
Speaker 5: thousand times, when you cross that line to impediment or

293
00:20:38,240 --> 00:20:43,000
Speaker 5: annoying Harbard, concealing an illego alahaim Ice, you will be prosecuted,

294
00:20:43,720 --> 00:20:44,280
Speaker 5: judge or not.

295
00:20:44,800 --> 00:20:47,920
Speaker 2: And then the removal of three children who are US

296
00:20:48,000 --> 00:20:51,840
Speaker 2: citizens to Honduras with their mothers who were being deported.

297
00:20:52,440 --> 00:20:55,760
Speaker 2: Secretary of State Marco Rubio set it's up to the

298
00:20:55,840 --> 00:20:59,120
Speaker 2: families to decide whether the children go with their mothers

299
00:20:59,359 --> 00:21:02,080
Speaker 2: who are being deported, or stay in the US.

300
00:21:02,880 --> 00:21:06,600
Speaker 4: If someone's in this country unlawfully, illegally, that person gets deported.

301
00:21:06,760 --> 00:21:08,840
Speaker 4: If that person is with a two year old child

302
00:21:08,920 --> 00:21:10,359
Speaker 4: or has a two year old child and says, I

303
00:21:10,400 --> 00:21:12,880
Speaker 4: want to take my child with you with me, Well,

304
00:21:12,880 --> 00:21:14,960
Speaker 4: now what you have two choices. You can say yes,

305
00:21:15,000 --> 00:21:16,720
Speaker 4: of course, you can take your child, whether they're a

306
00:21:16,760 --> 00:21:19,200
Speaker 4: citizen or not, because it's your child. Or you can

307
00:21:19,240 --> 00:21:22,080
Speaker 4: say yes, you can go, but your child must stay behind.

308
00:21:22,240 --> 00:21:25,560
Speaker 4: And then your headlines would read us holding hostage two

309
00:21:25,600 --> 00:21:28,120
Speaker 4: year old, four year old, seven year old while mother deported.

310
00:21:28,359 --> 00:21:30,800
Speaker 4: So the mother, the parents make that choice.

311
00:21:31,320 --> 00:21:34,520
Speaker 2: My guest is immigration law expert Leon Fresco, a partner

312
00:21:34,560 --> 00:21:38,320
Speaker 2: at Holland and Knight. Three US citizen children from two

313
00:21:38,520 --> 00:21:41,879
Speaker 2: families were removed from the United States with their mothers

314
00:21:41,920 --> 00:21:45,440
Speaker 2: who were being deported to Honduras, and Secretary of State

315
00:21:45,520 --> 00:21:49,800
Speaker 2: Marco Rubio defended the removals, saying it was the mother's choice.

316
00:21:50,400 --> 00:21:53,520
Speaker 3: Well, this is not an uncommon fact pattern, which is

317
00:21:53,560 --> 00:21:56,640
Speaker 3: there are many of these so called mixed status families,

318
00:21:56,680 --> 00:21:59,040
Speaker 3: and what that means is that one or both of

319
00:21:59,080 --> 00:22:02,520
Speaker 3: the pirates might be documented. And then obviously, if a

320
00:22:02,600 --> 00:22:04,760
Speaker 3: child is born in the United States, the child is

321
00:22:04,760 --> 00:22:07,960
Speaker 3: a US citizen, and the question is what happens there?

322
00:22:08,000 --> 00:22:12,240
Speaker 3: And normally what happens in that situation is ice like

323
00:22:12,320 --> 00:22:15,520
Speaker 3: in any arrest, there's a car and there's a parent

324
00:22:15,560 --> 00:22:19,000
Speaker 3: and a child in a drunk driving situation. If you

325
00:22:19,080 --> 00:22:22,400
Speaker 3: have an arrest, what happens is the authority say, what

326
00:22:22,440 --> 00:22:25,159
Speaker 3: would you like the dispensation to be for the child?

327
00:22:25,280 --> 00:22:28,560
Speaker 3: Is there some plan that you had in this situation,

328
00:22:28,720 --> 00:22:31,320
Speaker 3: and it might be in the case of a US

329
00:22:31,359 --> 00:22:34,639
Speaker 3: citizen child of an undocumented parent, an aunt, an uncle,

330
00:22:34,720 --> 00:22:38,639
Speaker 3: a cousin. Dispute in this case is that I didn't

331
00:22:38,680 --> 00:22:42,400
Speaker 3: give that opportunity for those wishes to be carried out.

332
00:22:42,480 --> 00:22:45,280
Speaker 3: And that's what the federal court judge is going to

333
00:22:45,359 --> 00:22:48,640
Speaker 3: have to determine, is was that plan not carried out?

334
00:22:49,240 --> 00:22:52,360
Speaker 3: And the reason this matters is, yes, the US citizen

335
00:22:52,359 --> 00:22:54,880
Speaker 3: could come back into the US, but it takes time

336
00:22:54,960 --> 00:22:57,800
Speaker 3: to go to an embassy and get a passport appointment,

337
00:22:57,880 --> 00:23:00,159
Speaker 3: and get that evidence and do all of that that

338
00:23:00,200 --> 00:23:03,119
Speaker 3: could take months in the ordinary course. Is perhaps the

339
00:23:03,160 --> 00:23:06,480
Speaker 3: court would want to order that much more quickly and

340
00:23:06,960 --> 00:23:09,199
Speaker 3: not have to go through the process of getting a

341
00:23:09,240 --> 00:23:11,919
Speaker 3: passport and doing all of those appointments and evidence and

342
00:23:11,960 --> 00:23:15,320
Speaker 3: everything else, or maybe the court will simply order that

343
00:23:15,359 --> 00:23:19,720
Speaker 3: a passport be printed immediately and get the citizen back

344
00:23:19,720 --> 00:23:22,400
Speaker 3: to the United States if that is the parent wishes,

345
00:23:22,440 --> 00:23:26,320
Speaker 3: which that seems to be the allegations in these complaints,

346
00:23:26,400 --> 00:23:28,680
Speaker 3: and so that's what's going to have to be worked

347
00:23:28,680 --> 00:23:32,760
Speaker 3: out here. But yes, sometimes the parents actually say to

348
00:23:32,760 --> 00:23:36,040
Speaker 3: bring their children with them back to the home country,

349
00:23:36,320 --> 00:23:38,800
Speaker 3: and that's their right and they can do that. And

350
00:23:38,880 --> 00:23:41,600
Speaker 3: sometimes they want the children in the United States and

351
00:23:41,640 --> 00:23:44,800
Speaker 3: that's their right. But usually this gets worked out through

352
00:23:44,840 --> 00:23:48,440
Speaker 3: some process, and Ice is currently saying that got worked

353
00:23:48,480 --> 00:23:50,919
Speaker 3: out here, and this is what the parents chose. The

354
00:23:51,000 --> 00:23:53,720
Speaker 3: lawsuits are saying the parents didn't choose this, and that's

355
00:23:53,720 --> 00:23:55,320
Speaker 3: what's going to have to be played out in court.

356
00:23:56,119 --> 00:23:59,320
Speaker 2: So what happens if one parent wants the child to stay,

357
00:23:59,440 --> 00:24:03,639
Speaker 2: Let's say it's a parent with US citizenship, and the

358
00:24:03,760 --> 00:24:05,920
Speaker 2: other wants to take the child with them.

359
00:24:06,320 --> 00:24:09,440
Speaker 3: That almost puts us into one of those famous Elim

360
00:24:09,480 --> 00:24:14,320
Speaker 3: Gonzalez type situations of the past, and that would actually

361
00:24:14,359 --> 00:24:17,080
Speaker 3: be a very interesting question. In a scenario like that,

362
00:24:17,600 --> 00:24:20,840
Speaker 3: What would normally happen is then that's an issue for

363
00:24:20,920 --> 00:24:26,159
Speaker 3: the state court. Child custody judges to determine, and in

364
00:24:26,200 --> 00:24:29,280
Speaker 3: that situation, the state court child custody judges are going

365
00:24:29,320 --> 00:24:31,280
Speaker 3: to have to determine what's in the best interests of

366
00:24:31,320 --> 00:24:36,320
Speaker 3: the child. And that may certainly be a completely different

367
00:24:36,359 --> 00:24:38,879
Speaker 3: analysis if a child is being deported to a country

368
00:24:38,920 --> 00:24:42,080
Speaker 3: where the conditions are very similar to those in the

369
00:24:42,160 --> 00:24:45,200
Speaker 3: United States as opposed to one where the conditions are

370
00:24:45,520 --> 00:24:48,520
Speaker 3: quite onerous and very difficult for the child to live in.

371
00:24:48,720 --> 00:24:52,320
Speaker 3: And also is one parent capable of caring for the

372
00:24:52,400 --> 00:24:54,760
Speaker 3: child is the other one, And so all of that

373
00:24:54,800 --> 00:24:57,160
Speaker 3: would need to be determined by a state court judge.

374
00:24:57,600 --> 00:25:00,400
Speaker 3: And that's what would happen in a case like this.

375
00:25:01,680 --> 00:25:04,040
Speaker 2: So does there have to be a hearing before the

376
00:25:04,160 --> 00:25:06,800
Speaker 2: child can be removed with the parent?

377
00:25:07,760 --> 00:25:10,320
Speaker 3: No, the problem is there's no hearing at all. The

378
00:25:10,400 --> 00:25:13,720
Speaker 3: child is a US citizen, and so the immigration court

379
00:25:13,760 --> 00:25:18,359
Speaker 3: has no jurisdiction whatsoever for any child of any kind.

380
00:25:18,480 --> 00:25:21,560
Speaker 3: But what has to happen is that if there is

381
00:25:21,600 --> 00:25:25,719
Speaker 3: a parent and a child that are physically together and

382
00:25:25,760 --> 00:25:29,879
Speaker 3: you're trying to deport the parent only you have to

383
00:25:29,920 --> 00:25:33,480
Speaker 3: give the parent some process visa the what they want

384
00:25:33,760 --> 00:25:36,760
Speaker 3: to have happened to the child. And so the parent

385
00:25:36,880 --> 00:25:38,920
Speaker 3: is well within their rights to say I want the

386
00:25:39,000 --> 00:25:42,000
Speaker 3: child to come with me. That the parent doesn't lose

387
00:25:42,400 --> 00:25:46,560
Speaker 3: jurisdiction over the child by virtue of the deportation, but

388
00:25:46,840 --> 00:25:49,000
Speaker 3: they also have the right to say I have this

389
00:25:49,080 --> 00:25:53,560
Speaker 3: other plan for my child, and they can give the child,

390
00:25:53,640 --> 00:25:56,200
Speaker 3: who's a US citizen, to someone in the United States,

391
00:25:56,240 --> 00:25:59,600
Speaker 3: and then it will be up to those individuals who

392
00:25:59,640 --> 00:26:02,200
Speaker 3: are remains with the child if they want to get

393
00:26:02,240 --> 00:26:06,600
Speaker 3: some sort of formal guardianship established in the courts. They

394
00:26:06,600 --> 00:26:10,040
Speaker 3: don't have to, but ideally they would so that you know,

395
00:26:10,240 --> 00:26:14,160
Speaker 3: decisions can be made about the child's life by this guardian,

396
00:26:14,240 --> 00:26:17,840
Speaker 3: whether it be school decisions or health decisions or anything

397
00:26:17,880 --> 00:26:18,600
Speaker 3: related to that.

398
00:26:19,000 --> 00:26:23,919
Speaker 2: Apparently the mother was taken into custody while she was

399
00:26:24,080 --> 00:26:27,080
Speaker 2: attending a routine check in last week.

400
00:26:28,080 --> 00:26:31,240
Speaker 3: Yes, the problem is there that those check ins were

401
00:26:31,720 --> 00:26:36,639
Speaker 3: quote unquote routine in the previous administration, but now those

402
00:26:36,760 --> 00:26:40,080
Speaker 3: check ins are not going to be routine because they

403
00:26:40,080 --> 00:26:43,399
Speaker 3: are going to be people without status reporting to ICE.

404
00:26:44,200 --> 00:26:46,920
Speaker 3: And so this is a fine line that ICE has

405
00:26:46,960 --> 00:26:49,879
Speaker 3: to balance, which is do they want people reporting to

406
00:26:49,960 --> 00:26:53,080
Speaker 3: these check ins or not, because if people don't report

407
00:26:53,119 --> 00:26:55,600
Speaker 3: to the check ins, obviously their fugitives and ICE will

408
00:26:55,640 --> 00:26:58,080
Speaker 3: have to catch them. But if people report to the

409
00:26:58,160 --> 00:27:01,359
Speaker 3: check ins and they're all detained, then they're going to

410
00:27:01,359 --> 00:27:03,639
Speaker 3: stop reporting to the chickens. And so this is the

411
00:27:03,720 --> 00:27:06,080
Speaker 3: challenge ICE is going to have to face, and they're

412
00:27:06,080 --> 00:27:08,439
Speaker 3: going to have to decide which one they prefer in

413
00:27:08,480 --> 00:27:09,200
Speaker 3: this situation.

414
00:27:09,800 --> 00:27:13,040
Speaker 2: So now turning to another case that got a lot

415
00:27:13,040 --> 00:27:16,280
Speaker 2: of headlines last week a lot of attention is the

416
00:27:16,400 --> 00:27:21,480
Speaker 2: Justice Department charged Wisconsin judge with obstructing an immigration arrest

417
00:27:21,600 --> 00:27:25,639
Speaker 2: operation and concealing a person from arrest. Tell us what

418
00:27:25,760 --> 00:27:26,639
Speaker 2: happened here.

419
00:27:26,640 --> 00:27:29,639
Speaker 3: Well, here you had a situation where a state court

420
00:27:29,760 --> 00:27:33,800
Speaker 3: judge as part of a routine state court criminal proceeding,

421
00:27:33,840 --> 00:27:37,399
Speaker 3: although it was a domestic violence proceeding, which certainly adds

422
00:27:37,520 --> 00:27:41,760
Speaker 3: to the complications here because obviously you certainly want to

423
00:27:42,200 --> 00:27:45,960
Speaker 3: try to punish people who commit domestic violence, but nevertheless,

424
00:27:46,400 --> 00:27:50,320
Speaker 3: this was a domestic violence based court proceeding. And what

425
00:27:50,560 --> 00:27:56,400
Speaker 3: happened here is that the judge heard and was aware

426
00:27:56,440 --> 00:27:59,240
Speaker 3: of the fact that ICE was in the building and

427
00:27:59,480 --> 00:28:03,080
Speaker 3: was looking to take custody over the person after their

428
00:28:03,160 --> 00:28:06,760
Speaker 3: hearing was going to be concluded. The judge then asked

429
00:28:06,800 --> 00:28:09,720
Speaker 3: ICE to go visit with the chief judge, and while

430
00:28:09,720 --> 00:28:13,359
Speaker 3: that was happening, then there was one ICE officer that

431
00:28:13,480 --> 00:28:16,879
Speaker 3: was still there that was in plain clothes, so the

432
00:28:17,000 --> 00:28:20,200
Speaker 3: judge didn't know there was still one government official still

433
00:28:20,200 --> 00:28:22,199
Speaker 3: there left who was observing all of this, and this

434
00:28:22,280 --> 00:28:25,879
Speaker 3: individual observed the judge then take this individual through the

435
00:28:25,960 --> 00:28:28,719
Speaker 3: jury box so that they could leave the building, and

436
00:28:28,760 --> 00:28:32,840
Speaker 3: then ICE had basically chased the individual down as opposed

437
00:28:32,880 --> 00:28:34,840
Speaker 3: to what they were expecting, which would be sort of

438
00:28:34,840 --> 00:28:38,440
Speaker 3: a much easier transfer once the person left the courtroom.

439
00:28:39,000 --> 00:28:42,880
Speaker 3: And so from that perspective, they charged the judge with,

440
00:28:43,160 --> 00:28:47,600
Speaker 3: as you said, obstructing an investigation and proceeding an arrest.

441
00:28:48,320 --> 00:28:52,480
Speaker 3: And interestingly enough, they didn't actually charge the judge with

442
00:28:52,600 --> 00:28:57,200
Speaker 3: harboring or concealing an undocumented person, which is sort of

443
00:28:57,240 --> 00:29:00,600
Speaker 3: the charge that's been discussed in the new that one

444
00:29:00,680 --> 00:29:04,520
Speaker 3: wasn't charged. It was just the normal any arrest, any investigation,

445
00:29:04,760 --> 00:29:08,520
Speaker 3: that you were obstructing any arrest, and that's what was charged.

446
00:29:09,160 --> 00:29:11,600
Speaker 3: And this is going to be a very interesting question

447
00:29:11,920 --> 00:29:13,600
Speaker 3: because it's going to be in the federal court for

448
00:29:13,640 --> 00:29:17,440
Speaker 3: the federal court judge to try to figure out does

449
00:29:18,120 --> 00:29:23,360
Speaker 3: the state court judge have this jurisdictional concern over the

450
00:29:23,400 --> 00:29:27,120
Speaker 3: court and being able to maintain their docket and being

451
00:29:27,160 --> 00:29:31,680
Speaker 3: able to maintain an orderly court system, so to speak,

452
00:29:31,920 --> 00:29:35,000
Speaker 3: that they can actually do something like this or does

453
00:29:35,000 --> 00:29:39,000
Speaker 3: that not extend out for the purposes of an arrest

454
00:29:39,160 --> 00:29:42,120
Speaker 3: or immigration law or anything else. Because I think what

455
00:29:42,160 --> 00:29:46,800
Speaker 3: the judge would probably say, although I obviously haven't heard

456
00:29:46,800 --> 00:29:51,120
Speaker 3: from the judge, is something akin to find this person

457
00:29:51,240 --> 00:29:54,960
Speaker 3: is an immigration fugitive, no doubt, and probably ICE. You

458
00:29:55,000 --> 00:29:58,320
Speaker 3: would want ICE to catch this evasion fugitive. But the

459
00:29:58,400 --> 00:30:02,840
Speaker 3: question is, once people who are in criminal court proceedings

460
00:30:03,280 --> 00:30:05,440
Speaker 3: are being asked to come into state court for those

461
00:30:05,480 --> 00:30:08,560
Speaker 3: criminal proceedings, if they know ICE is going to be there,

462
00:30:08,920 --> 00:30:11,480
Speaker 3: do you now want to make them a double fugitive

463
00:30:11,520 --> 00:30:14,080
Speaker 3: and have them be a fugitive not just from ICE

464
00:30:14,400 --> 00:30:16,760
Speaker 3: but also from the state criminal court, Which is what

465
00:30:16,840 --> 00:30:19,800
Speaker 3: will happen if people start thinking that ICE is going

466
00:30:19,880 --> 00:30:23,240
Speaker 3: to pick people up in the state court for criminal cases,

467
00:30:23,760 --> 00:30:25,959
Speaker 3: or do you want them at least to attend the

468
00:30:26,000 --> 00:30:28,720
Speaker 3: state criminal court sentence them, deal with that and then

469
00:30:28,760 --> 00:30:31,600
Speaker 3: ICE can get them later. So that's I think the

470
00:30:31,760 --> 00:30:34,520
Speaker 3: argument that the state court judge is going to make

471
00:30:34,600 --> 00:30:38,120
Speaker 3: and then Ice is going to say, no, that jurisdiction

472
00:30:38,280 --> 00:30:42,760
Speaker 3: doesn't extend to a judge being able to govern the

473
00:30:42,840 --> 00:30:44,760
Speaker 3: in and outs of how someone comes in and out

474
00:30:44,800 --> 00:30:47,400
Speaker 3: of a building, because at that point that is actively

475
00:30:47,560 --> 00:30:51,480
Speaker 3: thwarding a arrest, and that's going to be up for

476
00:30:51,520 --> 00:30:54,120
Speaker 3: the court to decide in that situation, who's right, who's

477
00:30:54,120 --> 00:30:58,720
Speaker 3: got the ability to govern the courthouse in that specific situation.

478
00:30:59,000 --> 00:31:03,640
Speaker 2: Lee unreportedly the FBI had an administrative warrant. Is that

479
00:31:03,760 --> 00:31:06,120
Speaker 2: something a judge would be expected to comply with?

480
00:31:06,600 --> 00:31:08,920
Speaker 3: Well, this is going to be another problem. They didn't

481
00:31:08,920 --> 00:31:12,360
Speaker 3: have a judicial warrant, they had an administrative warrant, and

482
00:31:12,440 --> 00:31:14,960
Speaker 3: so the administrative warrant, this is going to be another

483
00:31:15,000 --> 00:31:18,160
Speaker 3: debate and this this is a continued sort of issue

484
00:31:18,200 --> 00:31:21,840
Speaker 3: in the immigration laws. What does that administrative immigration warrant

485
00:31:21,960 --> 00:31:26,320
Speaker 3: get to from Ice? And really a lot of legal

486
00:31:26,400 --> 00:31:29,480
Speaker 3: commentators have said not much at the end of the day,

487
00:31:29,920 --> 00:31:32,280
Speaker 3: because all it allows you to do is to be

488
00:31:32,320 --> 00:31:35,840
Speaker 3: in a public space. Now, Ice was in a public space,

489
00:31:35,880 --> 00:31:39,040
Speaker 3: they were not in a private space in the courthouse.

490
00:31:39,600 --> 00:31:43,840
Speaker 3: But at the end of the day, does that administrative

491
00:31:43,880 --> 00:31:48,719
Speaker 3: warrant actually suffice for the purposes of the elements of

492
00:31:48,760 --> 00:31:53,400
Speaker 3: this crime, which is that you are obstructing in a

493
00:31:53,640 --> 00:31:56,360
Speaker 3: lawful arrest, And so that's going to be the question.

494
00:31:56,400 --> 00:31:59,120
Speaker 3: Perhaps the court will say you needed a judicial warrant

495
00:31:59,360 --> 00:32:03,000
Speaker 3: for that obstruction to take place, and the administrative warrant

496
00:32:03,120 --> 00:32:06,920
Speaker 3: was not sufficient to meet the elements of the charge,

497
00:32:07,400 --> 00:32:10,760
Speaker 3: and so the judge will be able to get exonerated

498
00:32:10,800 --> 00:32:13,560
Speaker 3: on that. That's definitely going to be another claim that's made,

499
00:32:14,040 --> 00:32:16,840
Speaker 3: and we'll have to see if the court wants to

500
00:32:17,160 --> 00:32:20,200
Speaker 3: be persuaded by that argument, which is that the administrative

501
00:32:20,200 --> 00:32:23,080
Speaker 3: as opposed to the judicial warrant is not enough.

502
00:32:23,440 --> 00:32:27,800
Speaker 2: Regardless of you know, the facts here, what the ice

503
00:32:27,880 --> 00:32:31,520
Speaker 2: did or what the authorities did. The FBI was very

504
00:32:31,600 --> 00:32:35,440
Speaker 2: unusual in that they didn't allow a sitting judge to

505
00:32:35,560 --> 00:32:39,960
Speaker 2: surrender to authorities, but rather they arrested her at the

506
00:32:40,000 --> 00:32:43,040
Speaker 2: courthouse and they had her sitting for hours in a

507
00:32:43,040 --> 00:32:43,840
Speaker 2: holding cell.

508
00:32:44,320 --> 00:32:49,000
Speaker 3: That's certainly always this debate about what happens when you

509
00:32:49,120 --> 00:32:51,760
Speaker 3: arrest someone and if someone is not a public safety thread,

510
00:32:52,240 --> 00:32:56,400
Speaker 3: is the person allowed to enter custody with a lawyer

511
00:32:56,520 --> 00:32:59,120
Speaker 3: and with arrangements done because the person is not going

512
00:32:59,160 --> 00:33:00,720
Speaker 3: to be a public safety threat. They're not going to

513
00:33:00,720 --> 00:33:03,240
Speaker 3: be a fugitive. One would certainly imagine that would be

514
00:33:03,240 --> 00:33:05,480
Speaker 3: the case with a judge, obviously, because the judges an't

515
00:33:05,480 --> 00:33:08,040
Speaker 3: offenserve of the court has to follow the law. It's

516
00:33:08,040 --> 00:33:09,640
Speaker 3: not going to be a fugitive, it's not going to

517
00:33:09,680 --> 00:33:12,720
Speaker 3: flee to some other country, it's not going to commit violence.

518
00:33:13,240 --> 00:33:18,480
Speaker 3: And so those criticisms are obviously in line with what

519
00:33:18,640 --> 00:33:21,600
Speaker 3: traditional practice is and it will be up to the

520
00:33:21,640 --> 00:33:24,880
Speaker 3: government officials to explain why they felt the need to

521
00:33:25,640 --> 00:33:29,720
Speaker 3: deviate from that and not allow a reporting in that situation.

522
00:33:30,480 --> 00:33:34,840
Speaker 2: So is it an escalation of the Trump administration's sort

523
00:33:34,880 --> 00:33:40,520
Speaker 2: of standoffs or fights with federal judges to arrest.

524
00:33:40,160 --> 00:33:43,320
Speaker 3: A judge, Well, this would be a state court judge.

525
00:33:43,320 --> 00:33:46,840
Speaker 3: But I mean certainly that is the rhetoric that is

526
00:33:46,880 --> 00:33:49,600
Speaker 3: coming out now, which is that there will be no

527
00:33:49,720 --> 00:33:53,960
Speaker 3: interference with these ICE operations, and if there's anyone actively

528
00:33:54,000 --> 00:33:57,600
Speaker 3: interfering with ICE operations, they will be arrested. Whether it

529
00:33:57,640 --> 00:34:01,800
Speaker 3: would be for this basic which is interfering with any

530
00:34:01,880 --> 00:34:04,440
Speaker 3: arrest that's the one the state court judge was arrested for,

531
00:34:05,000 --> 00:34:08,880
Speaker 3: or whether it's the harboring or concealing offense in EUSC

532
00:34:09,000 --> 00:34:13,840
Speaker 3: thirteen twenty four. That's immigration base. And certainly there's executive

533
00:34:13,920 --> 00:34:17,200
Speaker 3: orders that are coming out now today about the same issue,

534
00:34:17,840 --> 00:34:22,279
Speaker 3: basically instructing the Department of Justice to go look for

535
00:34:22,320 --> 00:34:27,760
Speaker 3: these cases and to arrest people who are obstructing these investigations.

536
00:34:27,760 --> 00:34:30,239
Speaker 3: And the courts are going to have to decide what

537
00:34:30,440 --> 00:34:34,840
Speaker 3: is obstruction and what is people trying to either maintain

538
00:34:34,920 --> 00:34:39,920
Speaker 3: their judicial proceedings, or cities trying to govern their cities,

539
00:34:40,040 --> 00:34:42,960
Speaker 3: or states trying to govern their states. Where does the

540
00:34:43,000 --> 00:34:49,759
Speaker 3: line cross over from non cooperation to obstruction and who

541
00:34:49,800 --> 00:34:52,160
Speaker 3: can do what? And I think if there's enough of

542
00:34:52,200 --> 00:34:55,439
Speaker 3: these prosecutions, you're actually going to see multiple cases going

543
00:34:55,520 --> 00:34:59,320
Speaker 3: up through the court where there's nuances in each situation,

544
00:34:59,520 --> 00:35:02,480
Speaker 3: and so well, that's going to be quite fascinating to watch.

545
00:35:03,160 --> 00:35:05,480
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

546
00:35:05,480 --> 00:35:09,600
Speaker 2: this conversation with Leon Fresco of Honda Knight. There seems

547
00:35:09,640 --> 00:35:12,280
Speaker 2: to be some movement by the government in the case

548
00:35:12,360 --> 00:35:17,920
Speaker 2: involving Kilmar Abrigo Garcia, who was mistakenly deported to l Salvador.

549
00:35:18,600 --> 00:35:21,800
Speaker 2: I'm June Grosso. When you're listening to Bloomberg so no,

550
00:35:21,960 --> 00:35:26,200
Speaker 2: it appears that there's been a break in the standoff

551
00:35:26,280 --> 00:35:31,040
Speaker 2: involving or Brego Garcia, who I think almost everyone knows

552
00:35:31,040 --> 00:35:34,600
Speaker 2: his name by now, who was mistakenly sent to prison

553
00:35:34,640 --> 00:35:38,080
Speaker 2: in l Salvador. The judge in the case granted the

554
00:35:38,080 --> 00:35:42,280
Speaker 2: Trump administration a week long pause in detailing what steps

555
00:35:42,320 --> 00:35:46,279
Speaker 2: they're taking to get him back. But apparently the administration

556
00:35:46,520 --> 00:35:50,600
Speaker 2: said in court papers that it had held appropriate diplomatic

557
00:35:50,680 --> 00:35:52,480
Speaker 2: discussions with l Salvador.

558
00:35:53,520 --> 00:35:57,360
Speaker 3: Apparently there is some belief that this is going to

559
00:35:57,400 --> 00:36:00,719
Speaker 3: be resolved in some amicable manner that will make the

560
00:36:00,760 --> 00:36:04,280
Speaker 3: litigants happy on the plaintiff side, on Abrego Garcia side,

561
00:36:04,719 --> 00:36:08,280
Speaker 3: and allow the case to be dismissed against the government. Obviously,

562
00:36:08,320 --> 00:36:10,960
Speaker 3: there would be no other reason why, if you were

563
00:36:10,960 --> 00:36:13,960
Speaker 3: an attorney with a client in that Elsavador in prison,

564
00:36:14,000 --> 00:36:17,279
Speaker 3: why you would allow a week long continuance for this.

565
00:36:17,840 --> 00:36:20,600
Speaker 3: And so what's not clear is if there's going to

566
00:36:20,680 --> 00:36:24,560
Speaker 3: be just a release from custody and not a repatriation,

567
00:36:24,719 --> 00:36:27,560
Speaker 3: and then the plaintiffs are going to have to figure

568
00:36:27,560 --> 00:36:30,400
Speaker 3: out how the repatriation occurs, or if there will actually

569
00:36:30,400 --> 00:36:34,040
Speaker 3: be a full fledge repatriation, or if there will be

570
00:36:34,680 --> 00:36:38,799
Speaker 3: some ability to go to Mexico or something like that.

571
00:36:39,160 --> 00:36:43,480
Speaker 3: All of this is undetermined, but certainly I would imagine

572
00:36:43,520 --> 00:36:45,800
Speaker 3: that they're close enough to a settlement at this point

573
00:36:45,840 --> 00:36:49,000
Speaker 3: that that's why both the judge in this case and

574
00:36:49,160 --> 00:36:53,800
Speaker 3: the plaintiffs have agreed to move forward with that extension,

575
00:36:53,880 --> 00:36:55,960
Speaker 3: because otherwise there would be no logic to it.

576
00:36:56,280 --> 00:37:01,719
Speaker 2: We would watch in courtroom battle student protests over the

577
00:37:01,719 --> 00:37:07,440
Speaker 2: Trump administration revoking student visas, and now they've apparently walked

578
00:37:07,440 --> 00:37:07,960
Speaker 2: that back.

579
00:37:08,600 --> 00:37:11,839
Speaker 3: Yes, as we discussed last week, there was always this

580
00:37:11,920 --> 00:37:16,000
Speaker 3: question about whether ICE had the ability to simply delete

581
00:37:16,160 --> 00:37:21,360
Speaker 3: students from the database and then put them in illegal status,

582
00:37:21,880 --> 00:37:24,759
Speaker 3: and the litigants who are representing the students said, no,

583
00:37:24,920 --> 00:37:28,280
Speaker 3: you cannot do that. You cannot delete people from a database.

584
00:37:28,320 --> 00:37:30,879
Speaker 3: That's not how it works. If you want to take

585
00:37:30,920 --> 00:37:33,399
Speaker 3: away a student status, you actually have to serve them

586
00:37:33,400 --> 00:37:35,319
Speaker 3: with a notice that they're going to be placed into

587
00:37:35,719 --> 00:37:39,600
Speaker 3: deportation proceedings and then actually get an order deporting them.

588
00:37:39,640 --> 00:37:42,239
Speaker 3: That's how you do it. You can't just delete them

589
00:37:42,280 --> 00:37:46,000
Speaker 3: from the database. And it appears the administration has agreed

590
00:37:46,480 --> 00:37:50,200
Speaker 3: and it has restored the students who are deleted from

591
00:37:50,280 --> 00:37:53,880
Speaker 3: the database. Back on to the database. Now, the question

592
00:37:54,000 --> 00:37:56,560
Speaker 3: is they haven't said they're doing that for all of

593
00:37:56,600 --> 00:37:59,799
Speaker 3: the students yet, and so there are some students who

594
00:37:59,880 --> 00:38:02,920
Speaker 3: are are still going to be suing because they specifically

595
00:38:03,440 --> 00:38:08,040
Speaker 3: haven't been restored to the database, and so those cases

596
00:38:08,080 --> 00:38:12,560
Speaker 3: will continue. But there has at least been some acknowledgement

597
00:38:13,080 --> 00:38:17,040
Speaker 3: that this act of deleting you from the database doesn't

598
00:38:17,080 --> 00:38:18,920
Speaker 3: put you into a legal status.

599
00:38:19,000 --> 00:38:22,280
Speaker 2: Do you know why the Trump administration decided to change

600
00:38:23,000 --> 00:38:24,040
Speaker 2: its policy here?

601
00:38:25,239 --> 00:38:28,640
Speaker 3: They literally lost in every single court. There wasn't one

602
00:38:28,760 --> 00:38:32,239
Speaker 3: court who agreed. There were tens of these cases, and

603
00:38:32,320 --> 00:38:34,399
Speaker 3: in every one of the cases they lost. And there's

604
00:38:34,480 --> 00:38:37,080
Speaker 3: just nothing in the regulation. You can go to the

605
00:38:37,120 --> 00:38:41,560
Speaker 3: Student Visa Regulation EIGHTCFR two fourteen point two F in

606
00:38:41,600 --> 00:38:45,239
Speaker 3: case anybody's interested, and there's nothing in there about this

607
00:38:45,440 --> 00:38:48,480
Speaker 3: about being able to just delete someone from the database.

608
00:38:48,960 --> 00:38:52,319
Speaker 3: And that caused them to be an unlawful status. And

609
00:38:52,400 --> 00:38:55,920
Speaker 3: so because of that, now in this new world where

610
00:38:56,200 --> 00:39:02,000
Speaker 3: there's no deference given to administrative agencies, sometimes that actually backfires.

611
00:39:02,040 --> 00:39:05,120
Speaker 3: And so here they're not going to get different to

612
00:39:05,200 --> 00:39:08,600
Speaker 3: something that isn't even in the regulations. You can't find it,

613
00:39:09,040 --> 00:39:11,960
Speaker 3: and so that's why they've lost all of these cases.

614
00:39:12,320 --> 00:39:15,479
Speaker 2: Thanks so much, Leon. That's Leon Fresco of Holland and Knight.

615
00:39:16,320 --> 00:39:18,640
Speaker 2: And that's it for this edition of The Bloomberg Law Show.

616
00:39:18,960 --> 00:39:21,319
Speaker 2: Remember you can always get the latest legal news on

617
00:39:21,360 --> 00:39:25,640
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

618
00:39:25,840 --> 00:39:30,879
Speaker 2: and at www dot bloomberg dot com slash podcast Slash Law,

619
00:39:31,280 --> 00:39:33,880
Speaker 2: and remember to tune into The Bloomberg Law Show every

620
00:39:33,920 --> 00:39:37,840
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

621
00:39:37,960 --> 00:39:39,560
Speaker 2: and you're listening to Bloomberg