Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: We've lost about one out of every five butterflies from
Speaker 2: twenty to twenty twenty. Scientists released a new study last
Speaker 2: month showing that in the last twenty years, nearly one
Speaker 2: quarter of all butterflies have been wiped out, with the
Speaker 2: loss of habitat being one of the major causes. It
Speaker 2: was just at the end of last year, after years
Speaker 2: of scientists warning that the number of monarch butterflies were shrinking,
Speaker 2: that US Wildlife officials put the monarch butterfly on the
Speaker 2: endangered species list. It's really quite troubling to see that
Speaker 2: monarch populations are declining, and if there aren't enough flowers
Speaker 2: to feed monarchs, imagine all the lesser known pollinators that
Speaker 2: aren't getting the things that they need. But this month,
Speaker 2: the Trump administration issued a proposed revision to the Endangered
Speaker 2: Species Act that would cut nearly all habitat protections for
Speaker 2: injured species like the monarch butterfly, the manage, the northern
Speaker 2: spotted owl, the whooping crane, and the green sea turtle,
Speaker 2: just to name a few. Turining me is environmental law
Speaker 2: expert pat Parento A. Professor at the Vermont Law and
Speaker 2: Graduate School. So that the Trump administration wants to scrap
Speaker 2: how the government defines harm in the Endangered Species Act,
Speaker 2: tell us how it's been defined since basically the Reagan administration.
Speaker 1: So the Act prohibits was called take of protected species,
Speaker 1: and take is further defined by a whole string of
Speaker 1: verbs including kill, wound, trap, but also harm or harassed.
Speaker 1: And it's those two words harm and harassed in the
Speaker 1: Endangered Species Act of nineteen seventy three. That were new concepts,
Speaker 1: and it took some time to define what those concepts meant.
Speaker 1: But in regards to harm, there was a very critical
Speaker 1: decision issued way back in the early nineteen eighties actually
Speaker 1: by the Ninth Circuit Court of Appeals in a case
Speaker 1: out of Hawaii involving the Palila bird, an endangered bird,
Speaker 1: which ruled that destruction of habitat constitutes harm. And as
Speaker 1: a result of that decision, the Department of Interior under
Speaker 1: then Secretary Babbitt promulgated this rule, defining harm to mean
Speaker 1: actions including habitat modification that actually kills or injures listed
Speaker 1: species by interfering with essential behavioral conditions like breeding, feeding,
Speaker 1: and sheltering. So it's a long definition, but its bottom
Speaker 1: line is the court's ruled that habitat loss is a
Speaker 1: take is prohibited under the d Species Act. Congress subsequently,
Speaker 1: after the Polila case, enacted an amendment to the Endangered
Speaker 1: Species Act in nineteen eighty two. I was there, I
Speaker 1: testified on this, which said, Okay, to protect landowner from
Speaker 1: finding themselves in violation of the Act, we're going to
Speaker 1: create a special permit process, which is called the incidental
Speaker 1: take permit, and we're going to require that landowners, if
Speaker 1: they want one of these permits, come up with a
Speaker 1: habitat conservation plan to mitigate an offset the loss of
Speaker 1: habitat for the activity logging, mining, grazing, all kinds of
Speaker 1: activity that would result in loss of habitat. So the
Speaker 1: point is this harm rule has a very long history,
Speaker 1: and it's one that Congress deliberately codified in the Endangered
Speaker 1: Species Act. That's why they created the permit for So
Speaker 1: the idea now that you would eliminate the definition of
Speaker 1: harm just rescind it, wipe it off the books, and
Speaker 1: not replace it, which is what is being proposed by
Speaker 1: Secretary Bergham. It's crazy, I mean it flies in the faith.
Speaker 1: What's the surprise here of this whole history of how
Speaker 1: the courts and Congress have dealt with this critical idea
Speaker 1: of protecting habitat. When you think about it, habitat loss
Speaker 1: is the major driver of extinction in the United States
Speaker 1: and globally. So to just eliminate it from the one
Speaker 1: law that's designed to prevent extinction, it's really nut the
Speaker 1: proposed change.
Speaker 2: Are they saying it's because of the Supreme Court's decision
Speaker 2: in Low or Bright eliminating the Chevron.
Speaker 1: Doctrine, Well they are. The irony, of course, is the
Speaker 1: United States Supreme Court, in a very very famous case
Speaker 1: which I submitted an amicus brief on behalf of E. O. Wilson,
Speaker 1: the late great conservation biologists, the biologist, by the way,
Speaker 1: who first warn the world that we were in an
Speaker 1: era of extinction. It was his work way back in
Speaker 1: the sixties that identified the loss of habitat as the
Speaker 1: main driver of extinction. Right, So we filed this brief
Speaker 1: in a case called sweet Home versus Babbitt, in which
Speaker 1: the US Supreme Court upheld by a sixty to three
Speaker 1: vote the harm rule that I just described. Right, So,
Speaker 1: now you have the Trump administration saying, yeah, but the
Speaker 1: Supreme Court has overruled Chevron, which means, of course that
Speaker 1: the Supreme Court's decision in Sweet Home is no longer controlling.
Speaker 1: But wait a minute. When you read Chief Justice Roberts's
Speaker 1: opinion in Low for Bright, he specifically says that decisions
Speaker 1: that have upheld rules based on Chevron are still in effect. Yea,
Speaker 1: So now you have the Trump administration saying, well, but
Speaker 1: we're going to change the rule by eliminating it for harm,
Speaker 1: and therefore we don't have to give the prior interpretation
Speaker 1: any significance, any difference at all. But that's not what
Speaker 1: Robert said. He said that prior decisions based on Chevron
Speaker 1: defference are entitled to what are called statutory starry decisives,
Speaker 1: in other words, precedent right. And he made it clear
Speaker 1: that it wasn't just a matter of saying, oh, well,
Speaker 1: never mind that a rule was formally upheld. He said,
Speaker 1: you have to justify, you know, new decisions to change
Speaker 1: your rule under the usual requirements of reversing prior rules, right,
Speaker 1: which is what we call the state farm doctrine, which
Speaker 1: means you have to justify repealing a rule based on
Speaker 1: change of circumstances, new facts, something has happened that justify
Speaker 1: rethinking why the original rule should be completely reversed. But again,
Speaker 1: all of the evidence suggests there's no basis for eliminating
Speaker 1: habitat protection from the Protections of the Endangered Species Act.
Speaker 1: If anything, what we're seeing is that habitat loss is
Speaker 1: now affecting all species. You know. The Cornell Lab, you know,
Speaker 1: the famous ornithological lab at Cornell University, issued an incredible
Speaker 1: decision this last year saying three billion birds three billion
Speaker 1: birds have disappeared from the United States since nineteen seventy
Speaker 1: and that's primarily related to habitat loss. Pesticides and other
Speaker 1: things come into play. Habitat loss is the reason that
Speaker 1: we're losing our incredible array of species. So this idea
Speaker 1: that the local Bright decision somehow justifies eliminating protection for
Speaker 1: habitat is once again crazy.
Speaker 2: So the Center for Biological Diversity issued a report identifying
Speaker 2: ten endangered animals at risk from this proposal by the
Speaker 2: Trump administration. They include the whooping crane, monarch, butterflies, manatees,
Speaker 2: the northern spotted owl, the Florida panther, desert tortoises, etc.
Speaker 2: And a lot of those are very popular species that
Speaker 2: most of the public would probably want to protect.
Speaker 1: Right at one time, you could measure the abundance of
Speaker 1: monarch butterflies in the billions, and the western population of
Speaker 1: monarch butterflies has been reduced by I think something like
Speaker 1: eighty percent maybe more and is really in danger of extinction.
Speaker 1: It's incredible to say that butterflies that used to light
Speaker 1: up the landscape all across the United States. I mean,
Speaker 1: we have them right here in our fields at are
Speaker 1: place here in Vermont, not as many as we used
Speaker 1: to have, but still it's like the passenger pigeons, right,
Speaker 1: Flocks of passenger pigeons, history says, used to darken the
Speaker 1: skies throughout much of the central part of the United States.
Speaker 1: And then just we're gone, and we're seeing the same
Speaker 1: thing with species like monarch butterflies. And we've got an
Speaker 1: administration you know, that wants to eliminate the one law
Speaker 1: that's designed to prevent that, or to substantially weaken it,
Speaker 1: if not eliminate it. It's really quite remarkable.
Speaker 2: So would this Trump administration change limit the Endangered Species
Speaker 2: Act to prohibiting only intentional direct killings.
Speaker 1: Of animals, right, And that's what Justice Scalia's descent in
Speaker 1: this Sweet Home decision said, is that you can only
Speaker 1: interpret harm in the same way that you interpret the
Speaker 1: verb kill. So to kill means direct impact on the
Speaker 1: individual animal, as Scalia famously put it, a strikes B.
Speaker 1: But in her concurring opinion in Sweet Home, Justice O'Connor that, now,
Speaker 1: wait a minute, eliminating the ability of a species to
Speaker 1: reproduce is the essential kinds of injury. How can you
Speaker 1: say that only a strikes B constitutes harm, you know,
Speaker 1: eliminating the breeding habitat of species and their ability to reproduce,
Speaker 1: essentially eliminating the species. So it was a fascinating interchange
Speaker 1: between O'Connor and Scalia, not the first to last, by
Speaker 1: the way of those who disagreeing in print, sometimes quite
Speaker 1: tartly over how to interpret a statutory term. So once again,
Speaker 1: and this whole idea that only things that directly affect
Speaker 1: the species is ignoring what the science is telling us
Speaker 1: is the major reason we're driving species extinct.
Speaker 2: So then do you think that when this is challenged
Speaker 2: in the courts, that the administration will lose?
Speaker 1: Yes, they should and they will. Now, when it finally
Speaker 1: goes back to the Supreme Court, we'll actually see whether
Speaker 1: Justice Roberts you know, sort of caution in the Lower
Speaker 1: Bright case stands up. In other words, is he going
Speaker 1: to look at this question of can you just simply
Speaker 1: wave your hand, you know, and eliminate this harm rule
Speaker 1: without any justification at all other than to say we
Speaker 1: don't think it's the single best reading of the statue.
Speaker 1: That's the rationale that the Trump administration is using to
Speaker 1: repeal the harm rule. You know, the single best interpretationation,
Speaker 1: says the Trump administration is Kalia's descent in sweet Home.
Speaker 1: So when this thing finally if it does, then it
Speaker 1: may not get back to the Supreme Court. We'll actually
Speaker 1: see whether or not just saying we're going to repeal
Speaker 1: a rule because in our view, the Trump administration view,
Speaker 1: it's not the best reading of the statute can prevail.
Speaker 1: And by the way, you know, the Trump administration is
Speaker 1: not going to get any difference for that interpretation either.
Speaker 1: That is the central message of Loper Bright. Nobody, no
Speaker 1: agency gets difference anymore under Lower Bright, including Trump.
Speaker 2: After the biotech and genetic engineering company said it successfully
Speaker 2: created three dire wolf puppies. The Secretary of the Interior,
Speaker 2: Doug Bergham, said, the only thing we'd like to see
Speaker 2: go extinct is the need for an endangered species list
Speaker 2: to exist. He compared it to Hotel California, where once
Speaker 2: you're on the list, you never get out.
Speaker 3: Wow.
Speaker 1: So the dire wolf story, it turns out those aren't
Speaker 1: dire wolves. They're an amalgamation of genetic manipulation of different
Speaker 1: painted species. If you really look behind the headlines of
Speaker 1: that story, not the dire wolf, get the knockoffs. It's
Speaker 1: a Hollywood production of a dire wolf. That's not what
Speaker 1: we're talking about with endangered species conservation. The original Act
Speaker 1: in nineteen seventy three had some incredible observations, really profound observations,
Speaker 1: things like in danger, species hold answers to questions we
Speaker 1: haven't even learned how to ask. I mean, it was
Speaker 1: really profound, right. It was like the driver of evolution
Speaker 1: on Earth is speciation and the way that species adapt.
Speaker 1: And of course nine of the species that ever existed
Speaker 1: on the Earth are extinct, so extinction is a part
Speaker 1: of the natural process. But the difference is human caused extinction,
Speaker 1: which again EO. Wilson and others documented and proved was
Speaker 1: accelerating at sometimes one hundred times and other times even
Speaker 1: a thousand times greater than what they called the background
Speaker 1: rate of extinction, which is sort of the natural evolution
Speaker 1: of species on Earth. Right, So this idea that we
Speaker 1: can recreate species, this sort of Jurassic Park notion that
Speaker 1: we don't need to preserve the natural diversity of the Earth,
Speaker 1: the natural process of evolution, that we can invent species
Speaker 1: whenever we feel like it really is a Hollywood idea.
Speaker 1: It has nothing to do with science, nothing to do
Speaker 1: with the fact that you know, natural species, including insects,
Speaker 1: which are in great decline, are incredibly important as we know,
Speaker 1: to human survival on the Earth. Scientists are saying, if
Speaker 1: we continue on the path that we're continuing to drive
Speaker 1: more and more just simply insects species to extinction, we're
Speaker 1: going to have tremendous impacts on pollination, tremendous impacts on
Speaker 1: food supply. And you can do the same thing with
Speaker 1: the oceans. You destroy the coral reefs. That's a third
Speaker 1: of the marine biodiversity on Earth. When you think about
Speaker 1: all of the protein that we get from the oceans,
Speaker 1: that depend on natural systems, natural organisms that are attracted
Speaker 1: to coral reefs. You're just inviting catastrophe when you suggest
Speaker 1: that we don't have to be concerned with preserving the
Speaker 1: natural history of the world.
Speaker 2: Is this all about making it easier for oil and
Speaker 2: gas producers? What's the goal of the Trump administration.
Speaker 1: Yeah, I mean it's property rights, it's landowner rights in part.
Speaker 1: Although what we've seen with the Harm rule in place
Speaker 1: is that there have been millions, more than twenty million
Speaker 1: acres of land, private lands that have been conserved under
Speaker 1: this incidental take permit program I mentioned, and allowed logging
Speaker 1: and mining and other activities to occur, just with offsetting mitigation.
Speaker 1: So it's not true that the Harm rule has prevented
Speaker 1: anything anything. There's no evidence that any landowner has suffered
Speaker 1: what's called a taking, a constitutional taking of property as
Speaker 1: a result of the Endangered Species Act. Never, never, So
Speaker 1: the whole idea that you have to eliminate this one
Speaker 1: mechanism of protection is simply wrong. There's no fact, no evidence.
Speaker 1: If you look at the proposed rule to resind the
Speaker 1: Harm rule in the Federal Register, and by the way,
Speaker 1: the comment period is still open until May nineteenth. For
Speaker 1: those who are interested in that, you can go look
Speaker 1: at it. It's a very short statement. We're simply repealing
Speaker 1: the harm rule. We're not replacing it. We're just pretending
Speaker 1: like we're going to erase the word from the statute,
Speaker 1: which of course violate canon number one of statutory interpretation,
Speaker 1: which is every word of a statute must be given effect.
Speaker 1: You don't just erase it because you find it difficult
Speaker 1: or whatever. You have to do something with it. And
Speaker 1: the proposal is to do nothing with it, to just
Speaker 1: erase it as if it never existed.
Speaker 2: So would this move by the Trump administration, would it
Speaker 2: got the Endangered Species Act?
Speaker 1: It would drive a huge hole through the Act, for sure.
Speaker 1: There are other reasons why the Act still you know,
Speaker 1: provides protection. It still requires consultation, although there's another you know,
Speaker 1: Burghum directive now saying that we're going to shorten up
Speaker 1: the time for consultation. When a proposed activity oil and
Speaker 1: gas leasing for example, or other forms of fossil fuel development,
Speaker 1: where that threatens an endangered species, there's a requirement that
Speaker 1: there be consultation. And there's still a provision that says
Speaker 1: if an action would jeopardize a species, it can't go
Speaker 1: forward unless it gets an exemption and so forth. But
Speaker 1: the point is by taking out the central protective mechanism
Speaker 1: of the Act, the take prohibition applies to everyone, private parties, state,
Speaker 1: tribal entities, counties. I mean, it's the most comprehensive provision
Speaker 1: in the Act that protect species no matter where they are,
Speaker 1: whether or not federal land or not private land, state land,
Speaker 1: or wherever they are, they're protected by the take prohibition
Speaker 1: and this incidental take permit process.
Speaker 4: Right.
Speaker 1: So it's a really central mechanism of the law. It's
Speaker 1: not the only one, and it doesn't mean that the
Speaker 1: law would simply disappear without it, but the ability to
Speaker 1: protect habitat on non federal lands, which is where most
Speaker 1: of the habitat is, would be severely diminished.
Speaker 2: There's a lot at stake here.
Speaker 1: I don't think this one is going to survive. I
Speaker 1: really don't. But the point is we're going to have
Speaker 1: to fight about it for years instead of moving forward
Speaker 1: with making the laws work better. And certainly there's ways
Speaker 1: of improving the way the Endangered Species Act works to
Speaker 1: make it more effective at recovery, for example, and to
Speaker 1: provide more incentives for landowners. That's fine, you know, let's
Speaker 1: have that conversation. But just going backwards that's not going
Speaker 1: to help anything.
Speaker 2: We'll see what happens after the notice and comment period
Speaker 2: is over. Thanks so much.
Speaker 3: Pat.
Speaker 2: That's Professor Pat Parento of the Vermont Law and Graduate School.
Speaker 2: The Trump administration's immigration moves have been in the headlines.
Speaker 2: Last Friday, it was the FBI's arrest of a Wisconsin
Speaker 2: judge for allegedly helping an undocumented immigrant evade ICE borders
Speaker 2: are Tom Homan defended the arrest.
Speaker 5: You can sit aside and watch you. You can argue
Speaker 5: against us, always want, and protest all you want. But
Speaker 5: when you cross that line. I've said this to a
Speaker 5: thousand times, when you cross that line to impediment or
Speaker 5: annoying Harbard, concealing an illego alahaim Ice, you will be prosecuted,
Speaker 5: judge or not.
Speaker 2: And then the removal of three children who are US
Speaker 2: citizens to Honduras with their mothers who were being deported.
Speaker 2: Secretary of State Marco Rubio set it's up to the
Speaker 2: families to decide whether the children go with their mothers
Speaker 2: who are being deported, or stay in the US.
Speaker 4: If someone's in this country unlawfully, illegally, that person gets deported.
Speaker 4: If that person is with a two year old child
Speaker 4: or has a two year old child and says, I
Speaker 4: want to take my child with you with me, Well,
Speaker 4: now what you have two choices. You can say yes,
Speaker 4: of course, you can take your child, whether they're a
Speaker 4: citizen or not, because it's your child. Or you can
Speaker 4: say yes, you can go, but your child must stay behind.
Speaker 4: And then your headlines would read us holding hostage two
Speaker 4: year old, four year old, seven year old while mother deported.
Speaker 4: So the mother, the parents make that choice.
Speaker 2: My guest is immigration law expert Leon Fresco, a partner
Speaker 2: at Holland and Knight. Three US citizen children from two
Speaker 2: families were removed from the United States with their mothers
Speaker 2: who were being deported to Honduras, and Secretary of State
Speaker 2: Marco Rubio defended the removals, saying it was the mother's choice.
Speaker 3: Well, this is not an uncommon fact pattern, which is
Speaker 3: there are many of these so called mixed status families,
Speaker 3: and what that means is that one or both of
Speaker 3: the pirates might be documented. And then obviously, if a
Speaker 3: child is born in the United States, the child is
Speaker 3: a US citizen, and the question is what happens there?
Speaker 3: And normally what happens in that situation is ice like
Speaker 3: in any arrest, there's a car and there's a parent
Speaker 3: and a child in a drunk driving situation. If you
Speaker 3: have an arrest, what happens is the authority say, what
Speaker 3: would you like the dispensation to be for the child?
Speaker 3: Is there some plan that you had in this situation,
Speaker 3: and it might be in the case of a US
Speaker 3: citizen child of an undocumented parent, an aunt, an uncle,
Speaker 3: a cousin. Dispute in this case is that I didn't
Speaker 3: give that opportunity for those wishes to be carried out.
Speaker 3: And that's what the federal court judge is going to
Speaker 3: have to determine, is was that plan not carried out?
Speaker 3: And the reason this matters is, yes, the US citizen
Speaker 3: could come back into the US, but it takes time
Speaker 3: to go to an embassy and get a passport appointment,
Speaker 3: and get that evidence and do all of that that
Speaker 3: could take months in the ordinary course. Is perhaps the
Speaker 3: court would want to order that much more quickly and
Speaker 3: not have to go through the process of getting a
Speaker 3: passport and doing all of those appointments and evidence and
Speaker 3: everything else, or maybe the court will simply order that
Speaker 3: a passport be printed immediately and get the citizen back
Speaker 3: to the United States if that is the parent wishes,
Speaker 3: which that seems to be the allegations in these complaints,
Speaker 3: and so that's what's going to have to be worked
Speaker 3: out here. But yes, sometimes the parents actually say to
Speaker 3: bring their children with them back to the home country,
Speaker 3: and that's their right and they can do that. And
Speaker 3: sometimes they want the children in the United States and
Speaker 3: that's their right. But usually this gets worked out through
Speaker 3: some process, and Ice is currently saying that got worked
Speaker 3: out here, and this is what the parents chose. The
Speaker 3: lawsuits are saying the parents didn't choose this, and that's
Speaker 3: what's going to have to be played out in court.
Speaker 2: So what happens if one parent wants the child to stay,
Speaker 2: Let's say it's a parent with US citizenship, and the
Speaker 2: other wants to take the child with them.
Speaker 3: That almost puts us into one of those famous Elim
Speaker 3: Gonzalez type situations of the past, and that would actually
Speaker 3: be a very interesting question. In a scenario like that,
Speaker 3: What would normally happen is then that's an issue for
Speaker 3: the state court. Child custody judges to determine, and in
Speaker 3: that situation, the state court child custody judges are going
Speaker 3: to have to determine what's in the best interests of
Speaker 3: the child. And that may certainly be a completely different
Speaker 3: analysis if a child is being deported to a country
Speaker 3: where the conditions are very similar to those in the
Speaker 3: United States as opposed to one where the conditions are
Speaker 3: quite onerous and very difficult for the child to live in.
Speaker 3: And also is one parent capable of caring for the
Speaker 3: child is the other one, And so all of that
Speaker 3: would need to be determined by a state court judge.
Speaker 3: And that's what would happen in a case like this.
Speaker 2: So does there have to be a hearing before the
Speaker 2: child can be removed with the parent?
Speaker 3: No, the problem is there's no hearing at all. The
Speaker 3: child is a US citizen, and so the immigration court
Speaker 3: has no jurisdiction whatsoever for any child of any kind.
Speaker 3: But what has to happen is that if there is
Speaker 3: a parent and a child that are physically together and
Speaker 3: you're trying to deport the parent only you have to
Speaker 3: give the parent some process visa the what they want
Speaker 3: to have happened to the child. And so the parent
Speaker 3: is well within their rights to say I want the
Speaker 3: child to come with me. That the parent doesn't lose
Speaker 3: jurisdiction over the child by virtue of the deportation, but
Speaker 3: they also have the right to say I have this
Speaker 3: other plan for my child, and they can give the child,
Speaker 3: who's a US citizen, to someone in the United States,
Speaker 3: and then it will be up to those individuals who
Speaker 3: are remains with the child if they want to get
Speaker 3: some sort of formal guardianship established in the courts. They
Speaker 3: don't have to, but ideally they would so that you know,
Speaker 3: decisions can be made about the child's life by this guardian,
Speaker 3: whether it be school decisions or health decisions or anything
Speaker 3: related to that.
Speaker 2: Apparently the mother was taken into custody while she was
Speaker 2: attending a routine check in last week.
Speaker 3: Yes, the problem is there that those check ins were
Speaker 3: quote unquote routine in the previous administration, but now those
Speaker 3: check ins are not going to be routine because they
Speaker 3: are going to be people without status reporting to ICE.
Speaker 3: And so this is a fine line that ICE has
Speaker 3: to balance, which is do they want people reporting to
Speaker 3: these check ins or not, because if people don't report
Speaker 3: to the check ins, obviously their fugitives and ICE will
Speaker 3: have to catch them. But if people report to the
Speaker 3: check ins and they're all detained, then they're going to
Speaker 3: stop reporting to the chickens. And so this is the
Speaker 3: challenge ICE is going to have to face, and they're
Speaker 3: going to have to decide which one they prefer in
Speaker 3: this situation.
Speaker 2: So now turning to another case that got a lot
Speaker 2: of headlines last week a lot of attention is the
Speaker 2: Justice Department charged Wisconsin judge with obstructing an immigration arrest
Speaker 2: operation and concealing a person from arrest. Tell us what
Speaker 2: happened here.
Speaker 3: Well, here you had a situation where a state court
Speaker 3: judge as part of a routine state court criminal proceeding,
Speaker 3: although it was a domestic violence proceeding, which certainly adds
Speaker 3: to the complications here because obviously you certainly want to
Speaker 3: try to punish people who commit domestic violence, but nevertheless,
Speaker 3: this was a domestic violence based court proceeding. And what
Speaker 3: happened here is that the judge heard and was aware
Speaker 3: of the fact that ICE was in the building and
Speaker 3: was looking to take custody over the person after their
Speaker 3: hearing was going to be concluded. The judge then asked
Speaker 3: ICE to go visit with the chief judge, and while
Speaker 3: that was happening, then there was one ICE officer that
Speaker 3: was still there that was in plain clothes, so the
Speaker 3: judge didn't know there was still one government official still
Speaker 3: there left who was observing all of this, and this
Speaker 3: individual observed the judge then take this individual through the
Speaker 3: jury box so that they could leave the building, and
Speaker 3: then ICE had basically chased the individual down as opposed
Speaker 3: to what they were expecting, which would be sort of
Speaker 3: a much easier transfer once the person left the courtroom.
Speaker 3: And so from that perspective, they charged the judge with,
Speaker 3: as you said, obstructing an investigation and proceeding an arrest.
Speaker 3: And interestingly enough, they didn't actually charge the judge with
Speaker 3: harboring or concealing an undocumented person, which is sort of
Speaker 3: the charge that's been discussed in the new that one
Speaker 3: wasn't charged. It was just the normal any arrest, any investigation,
Speaker 3: that you were obstructing any arrest, and that's what was charged.
Speaker 3: And this is going to be a very interesting question
Speaker 3: because it's going to be in the federal court for
Speaker 3: the federal court judge to try to figure out does
Speaker 3: the state court judge have this jurisdictional concern over the
Speaker 3: court and being able to maintain their docket and being
Speaker 3: able to maintain an orderly court system, so to speak,
Speaker 3: that they can actually do something like this or does
Speaker 3: that not extend out for the purposes of an arrest
Speaker 3: or immigration law or anything else. Because I think what
Speaker 3: the judge would probably say, although I obviously haven't heard
Speaker 3: from the judge, is something akin to find this person
Speaker 3: is an immigration fugitive, no doubt, and probably ICE. You
Speaker 3: would want ICE to catch this evasion fugitive. But the
Speaker 3: question is, once people who are in criminal court proceedings
Speaker 3: are being asked to come into state court for those
Speaker 3: criminal proceedings, if they know ICE is going to be there,
Speaker 3: do you now want to make them a double fugitive
Speaker 3: and have them be a fugitive not just from ICE
Speaker 3: but also from the state criminal court, Which is what
Speaker 3: will happen if people start thinking that ICE is going
Speaker 3: to pick people up in the state court for criminal cases,
Speaker 3: or do you want them at least to attend the
Speaker 3: state criminal court sentence them, deal with that and then
Speaker 3: ICE can get them later. So that's I think the
Speaker 3: argument that the state court judge is going to make
Speaker 3: and then Ice is going to say, no, that jurisdiction
Speaker 3: doesn't extend to a judge being able to govern the
Speaker 3: in and outs of how someone comes in and out
Speaker 3: of a building, because at that point that is actively
Speaker 3: thwarding a arrest, and that's going to be up for
Speaker 3: the court to decide in that situation, who's right, who's
Speaker 3: got the ability to govern the courthouse in that specific situation.
Speaker 2: Lee unreportedly the FBI had an administrative warrant. Is that
Speaker 2: something a judge would be expected to comply with?
Speaker 3: Well, this is going to be another problem. They didn't
Speaker 3: have a judicial warrant, they had an administrative warrant, and
Speaker 3: so the administrative warrant, this is going to be another
Speaker 3: debate and this this is a continued sort of issue
Speaker 3: in the immigration laws. What does that administrative immigration warrant
Speaker 3: get to from Ice? And really a lot of legal
Speaker 3: commentators have said not much at the end of the day,
Speaker 3: because all it allows you to do is to be
Speaker 3: in a public space. Now, Ice was in a public space,
Speaker 3: they were not in a private space in the courthouse.
Speaker 3: But at the end of the day, does that administrative
Speaker 3: warrant actually suffice for the purposes of the elements of
Speaker 3: this crime, which is that you are obstructing in a
Speaker 3: lawful arrest, And so that's going to be the question.
Speaker 3: Perhaps the court will say you needed a judicial warrant
Speaker 3: for that obstruction to take place, and the administrative warrant
Speaker 3: was not sufficient to meet the elements of the charge,
Speaker 3: and so the judge will be able to get exonerated
Speaker 3: on that. That's definitely going to be another claim that's made,
Speaker 3: and we'll have to see if the court wants to
Speaker 3: be persuaded by that argument, which is that the administrative
Speaker 3: as opposed to the judicial warrant is not enough.
Speaker 2: Regardless of you know, the facts here, what the ice
Speaker 2: did or what the authorities did. The FBI was very
Speaker 2: unusual in that they didn't allow a sitting judge to
Speaker 2: surrender to authorities, but rather they arrested her at the
Speaker 2: courthouse and they had her sitting for hours in a
Speaker 2: holding cell.
Speaker 3: That's certainly always this debate about what happens when you
Speaker 3: arrest someone and if someone is not a public safety thread,
Speaker 3: is the person allowed to enter custody with a lawyer
Speaker 3: and with arrangements done because the person is not going
Speaker 3: to be a public safety threat. They're not going to
Speaker 3: be a fugitive. One would certainly imagine that would be
Speaker 3: the case with a judge, obviously, because the judges an't
Speaker 3: offenserve of the court has to follow the law. It's
Speaker 3: not going to be a fugitive, it's not going to
Speaker 3: flee to some other country, it's not going to commit violence.
Speaker 3: And so those criticisms are obviously in line with what
Speaker 3: traditional practice is and it will be up to the
Speaker 3: government officials to explain why they felt the need to
Speaker 3: deviate from that and not allow a reporting in that situation.
Speaker 2: So is it an escalation of the Trump administration's sort
Speaker 2: of standoffs or fights with federal judges to arrest.
Speaker 3: A judge, Well, this would be a state court judge.
Speaker 3: But I mean certainly that is the rhetoric that is
Speaker 3: coming out now, which is that there will be no
Speaker 3: interference with these ICE operations, and if there's anyone actively
Speaker 3: interfering with ICE operations, they will be arrested. Whether it
Speaker 3: would be for this basic which is interfering with any
Speaker 3: arrest that's the one the state court judge was arrested for,
Speaker 3: or whether it's the harboring or concealing offense in EUSC
Speaker 3: thirteen twenty four. That's immigration base. And certainly there's executive
Speaker 3: orders that are coming out now today about the same issue,
Speaker 3: basically instructing the Department of Justice to go look for
Speaker 3: these cases and to arrest people who are obstructing these investigations.
Speaker 3: And the courts are going to have to decide what
Speaker 3: is obstruction and what is people trying to either maintain
Speaker 3: their judicial proceedings, or cities trying to govern their cities,
Speaker 3: or states trying to govern their states. Where does the
Speaker 3: line cross over from non cooperation to obstruction and who
Speaker 3: can do what? And I think if there's enough of
Speaker 3: these prosecutions, you're actually going to see multiple cases going
Speaker 3: up through the court where there's nuances in each situation,
Speaker 3: and so well, that's going to be quite fascinating to watch.
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
Speaker 2: this conversation with Leon Fresco of Honda Knight. There seems
Speaker 2: to be some movement by the government in the case
Speaker 2: involving Kilmar Abrigo Garcia, who was mistakenly deported to l Salvador.
Speaker 2: I'm June Grosso. When you're listening to Bloomberg so no,
Speaker 2: it appears that there's been a break in the standoff
Speaker 2: involving or Brego Garcia, who I think almost everyone knows
Speaker 2: his name by now, who was mistakenly sent to prison
Speaker 2: in l Salvador. The judge in the case granted the
Speaker 2: Trump administration a week long pause in detailing what steps
Speaker 2: they're taking to get him back. But apparently the administration
Speaker 2: said in court papers that it had held appropriate diplomatic
Speaker 2: discussions with l Salvador.
Speaker 3: Apparently there is some belief that this is going to
Speaker 3: be resolved in some amicable manner that will make the
Speaker 3: litigants happy on the plaintiff side, on Abrego Garcia side,
Speaker 3: and allow the case to be dismissed against the government. Obviously,
Speaker 3: there would be no other reason why, if you were
Speaker 3: an attorney with a client in that Elsavador in prison,
Speaker 3: why you would allow a week long continuance for this.
Speaker 3: And so what's not clear is if there's going to
Speaker 3: be just a release from custody and not a repatriation,
Speaker 3: and then the plaintiffs are going to have to figure
Speaker 3: out how the repatriation occurs, or if there will actually
Speaker 3: be a full fledge repatriation, or if there will be
Speaker 3: some ability to go to Mexico or something like that.
Speaker 3: All of this is undetermined, but certainly I would imagine
Speaker 3: that they're close enough to a settlement at this point
Speaker 3: that that's why both the judge in this case and
Speaker 3: the plaintiffs have agreed to move forward with that extension,
Speaker 3: because otherwise there would be no logic to it.
Speaker 2: We would watch in courtroom battle student protests over the
Speaker 2: Trump administration revoking student visas, and now they've apparently walked
Speaker 2: that back.
Speaker 3: Yes, as we discussed last week, there was always this
Speaker 3: question about whether ICE had the ability to simply delete
Speaker 3: students from the database and then put them in illegal status,
Speaker 3: and the litigants who are representing the students said, no,
Speaker 3: you cannot do that. You cannot delete people from a database.
Speaker 3: That's not how it works. If you want to take
Speaker 3: away a student status, you actually have to serve them
Speaker 3: with a notice that they're going to be placed into
Speaker 3: deportation proceedings and then actually get an order deporting them.
Speaker 3: That's how you do it. You can't just delete them
Speaker 3: from the database. And it appears the administration has agreed
Speaker 3: and it has restored the students who are deleted from
Speaker 3: the database. Back on to the database. Now, the question
Speaker 3: is they haven't said they're doing that for all of
Speaker 3: the students yet, and so there are some students who
Speaker 3: are are still going to be suing because they specifically
Speaker 3: haven't been restored to the database, and so those cases
Speaker 3: will continue. But there has at least been some acknowledgement
Speaker 3: that this act of deleting you from the database doesn't
Speaker 3: put you into a legal status.
Speaker 2: Do you know why the Trump administration decided to change
Speaker 2: its policy here?
Speaker 3: They literally lost in every single court. There wasn't one
Speaker 3: court who agreed. There were tens of these cases, and
Speaker 3: in every one of the cases they lost. And there's
Speaker 3: just nothing in the regulation. You can go to the
Speaker 3: Student Visa Regulation EIGHTCFR two fourteen point two F in
Speaker 3: case anybody's interested, and there's nothing in there about this
Speaker 3: about being able to just delete someone from the database.
Speaker 3: And that caused them to be an unlawful status. And
Speaker 3: so because of that, now in this new world where
Speaker 3: there's no deference given to administrative agencies, sometimes that actually backfires.
Speaker 3: And so here they're not going to get different to
Speaker 3: something that isn't even in the regulations. You can't find it,
Speaker 3: and so that's why they've lost all of these cases.
Speaker 2: Thanks so much, Leon. That's Leon Fresco of Holland and Knight.
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
Speaker 2: Remember you can always get the latest legal news on
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 2: and at www dot bloomberg dot com slash podcast Slash Law,
Speaker 2: and remember to tune into The Bloomberg Law Show every
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
Speaker 2: and you're listening to Bloomberg