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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Should you be

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Speaker 1: allowed to wear a Make America Great Again hat or

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Speaker 1: a me Too button when you go to vote? The

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Speaker 1: Supreme Court justices appeared to be divided about that at

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Speaker 1: oral arguments today. They were reviewing a challenge to a

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Speaker 1: Minnesota law which bans the wearing of a political badge,

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Speaker 1: political button, or other political insignia inside the polling place.

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Speaker 1: My guest is Daniel Wiener, senior counsel at the Brennan Center.

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Speaker 1: He was at the arguments today. Daniel, all states forbid

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Speaker 1: electioneering at the polls and within a buffrage zone. What's

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Speaker 1: the first amendment argument of the challengers here? Well? Sure, well, first,

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Speaker 1: thanks very much for having me today. UM. The challengers

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Speaker 1: essentially are arguing that while all states prohibit electioneering, UM,

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Speaker 1: Minnesota goes farther in prohibiting all political apparel, and that

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Speaker 1: that effort to broaden the restriction is unconstitutionally over broad. Um.

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Speaker 1: The Court actually pressed the challengers a bit though, to

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Speaker 1: explain in more detail how they thought Minnesota had exceeded

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Speaker 1: the first amendments, had exceeded the the appropriate scope of

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Speaker 1: the law, and they and they weren't really able to

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Speaker 1: answer the question, partly because I think, um, you know,

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Speaker 1: there is some divided opinion, and some of them, uh

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Speaker 1: might have even said that, uh, you know, laws that

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Speaker 1: prohibit any electioneering are unconstitutional, so they didn't really want

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Speaker 1: to be pinned down on that. But essentially, this law

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Speaker 1: goes farther even than the laws that just prohibit, you know,

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Speaker 1: a button with a candidate's name on it. I understand

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Speaker 1: that according to Bloomberg News Supreme Court report of Greg's store,

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Speaker 1: the justices question the lawyers about all kinds of hypothetical

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Speaker 1: t shirts bearing parts of the Constitution and coordinated efforts

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Speaker 1: to wear white clothing to the polls. Is there a

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Speaker 1: problem with drawing a line with a law like this, Well,

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Speaker 1: you know, I am a little skeptical because, frankly, line

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Speaker 1: drawing is part of the law, and I think, as

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Speaker 1: the counsel for the state pointed out, when you go

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Speaker 1: to vote, there are election judges, and they have to

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Speaker 1: draw all sorts of lines, and they have to exercise discretion. Minnesota,

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Speaker 1: you know, for instance, is the same day registration states states.

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Speaker 1: So the election judge has to make a decision on

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Speaker 1: the spot about whether you're eligible to vote. Uh and

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Speaker 1: and and they have to do that. Um. So, while

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Speaker 1: line drawing certainly is an issue, and it needs to

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Speaker 1: be uh you know, constrained to some extent, the fact

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Speaker 1: that lines have to be drawn, I don't think in

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Speaker 1: and of itself should be a problem. Was that in

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Speaker 1: Minnesota's main defense. That was one of Minnesota's main defenses. Um.

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Speaker 1: You know, they also, uh, I think hammered very heavily

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Speaker 1: on the justifications for this rule, including the notion of

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Speaker 1: decorum in the polling place and uh the idea that

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Speaker 1: when you go to vote, no matter how raucous the

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Speaker 1: campaign was, the actual voting experience should be one where

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Speaker 1: you put that aside and you have kind of a

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Speaker 1: calm environment. And somewhat surprisingly, Justice Kennedy, who is tends

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Speaker 1: to be a very forceful advocate for First Amendment rights,

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Speaker 1: actually seemed to sympathize with that point of view. As

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Speaker 1: the Justice Brier um so that's something that they hammered on,

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Speaker 1: and then they also hammered And this is certainly what

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Speaker 1: the Brennan Center has emphasized the most on the fact

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Speaker 1: that some of the apparel the petitioners wanted to wear,

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Speaker 1: specifically the apparel calling on election workers to check identification

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Speaker 1: UM in a state that does not require oun identification,

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Speaker 1: was far more than just passive political expression, but was

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Speaker 1: actually attempting to manipulate the electoral process. And that goes

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Speaker 1: far beyond sort of the initial arguments, and petitioners actually

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Speaker 1: kind of backtracked on that eventually and conceded the point,

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Speaker 1: could you hazard a guess as to where a majority

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Speaker 1: of the justices would be on this? Or it was

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Speaker 1: it too much confusion? You know, it's always hard to

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Speaker 1: do that from oral argument, as we've seen time and again,

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Speaker 1: and and the court was divided. I I would, you know,

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Speaker 1: say that if I were the state, I might be

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Speaker 1: cautiously optimistic UM that uh, the Court will reject uh

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Speaker 1: the sort of legal challenge petitioners have brought a facial

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Speaker 1: overbreath challenge. However, I think also the Court is not

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Speaker 1: entirely comfortable with how UM the state is administering this law,

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Speaker 1: and there might be a suggestion that they ought to

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Speaker 1: do things differently, but it is relatively hard. It's it's

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Speaker 1: fairly hard to tell. And this was not a case

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Speaker 1: where they a majority of the court played its cards

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Speaker 1: very Obviously, the Supreme Court upheld a ban on electioneering

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Speaker 1: within one feet of a polling place some time ago.

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Speaker 1: Is this analogous? Well, yes, because obviously the Supreme Court

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Speaker 1: has made very clear that inside a polling place and

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Speaker 1: within a hundred feet there are other very important government

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Speaker 1: interests that need to come into play, not only to

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Speaker 1: corem but also frankly protecting the fundamental right to vote,

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Speaker 1: which is also actually a First Amendment right. Um, this

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Speaker 1: is analogous, uh, inasmuch as the state is trying to

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Speaker 1: do the same thing. But I think the state would

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Speaker 1: say that they're going a little farther in prohibiting not

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Speaker 1: just literal election nearing, but other uh you know, political

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Speaker 1: uh material that that could reasonably be seen to be

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Speaker 1: focused on an electoral choice. Um. We at the Brandan

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Speaker 1: Center have suggested that if if the Court wanted to

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Speaker 1: narrow the statute to maintain its constitutionality, it could just

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Speaker 1: focus on that electioneering element, and it could adopt a

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Speaker 1: sort of interpretation of it that would have let let

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Speaker 1: it do that. Um. So in that sense it is

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Speaker 1: analogous um and their paths the court could take if

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Speaker 1: it is uncomfortable with some of the sort of more

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Speaker 1: out there hypotheticals that the petitioners offered, what could the

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Speaker 1: court do? Well? The court and this is you know,

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Speaker 1: a bit of a legal uh is legal in the weeds.

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Speaker 1: The court can adopt what it called what we in

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Speaker 1: the law call a saving construction, where it takes a

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Speaker 1: plausible interpretation of the statute that would not raise constitutional questions.

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Speaker 1: It can say, look, we're going to interpret the statute

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Speaker 1: that way and that avoids the constitutional issue. Our position

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Speaker 1: is that they could do that if they are concerned

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Speaker 1: some of the hypothetical examples that the positioners raised. I mean,

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Speaker 1: that's an important point here, which is that for all

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Speaker 1: the sort of examples of people wearing white or you know,

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Speaker 1: people coming in with the text of the constitution, the

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Speaker 1: only actual examples in the record are people who wanted

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Speaker 1: to wear buttons calling on poll workers to check I D.

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Speaker 1: And many of those people also had T shirts that

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Speaker 1: had the name and some slogans associated with the Tea Party, which,

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Speaker 1: as you were calling two thousand and ten, was also

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Speaker 1: very focused on electing candidates. So all the other stuff

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Speaker 1: out there is to some extent noise, and there are

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Speaker 1: ways for the court to deal with those hypotheticals short

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Speaker 1: of just striking down the law. All right, well, we

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Speaker 1: will see what happens. It does sound like it was

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Speaker 1: a very spirited oral argument that you attended. Thanks so much, Daniel.

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Speaker 1: That's Daniel Weener. He is senior councilor counsel at the

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Speaker 1: Brennan Center. It was a bitter divide on the Supreme

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Speaker 1: Court over a decision that immigrants are being held by

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Speaker 1: the government while facing deportation are not entitled to bail hearings,

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Speaker 1: even after months or perhaps years in custody. It was

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Speaker 1: a five to three vote. Justice Brier summarized the descent

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Speaker 1: from the bench in a rare move to show how

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Speaker 1: fervently the liberal justices disagreed with the majority. Joining me

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Speaker 1: is Leon Fresco, a partner at Holland and Knight. Leon.

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Speaker 1: The Court overturned and Appeals Court ruling that had required

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Speaker 1: bond hearings every six months for immigrants who are detained.

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Speaker 1: What was the reasoning of the majority. So this is

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Speaker 1: a bit complex, but I'll try to make it as

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Speaker 1: simple as possible, which is that the Ninth Circuit had

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Speaker 1: held that the statute, which requires certain types of immigrants

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Speaker 1: to be detained, and these are crim people, immigrants with

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Speaker 1: criminal convictions, and immigrants who apply for asylum at the border, UH,

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Speaker 1: could not be constitutional if it was if it was

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Speaker 1: a statute that permitted indefinite detention past six months without

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Speaker 1: a bad bond hearing. And what they said is there's

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Speaker 1: more than one way to read the statute, and so

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Speaker 1: we will read it in the constitutional way, which is

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Speaker 1: that after every six months you need a bond hearing.

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Speaker 1: And what the Supreme Court said is there is no

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Speaker 1: way to read the statute to allow to have any

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Speaker 1: kind of release from detention. It's a mandatory detention statute.

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Speaker 1: So if you want to go ahead and rule that

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Speaker 1: statute on constitutional, you can go ahead and do that

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Speaker 1: Ninth Circuit and then we'll come back and decide whether

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Speaker 1: that statute is constitutional or not. But there's nothing that

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Speaker 1: in that permits an interpretation of the statute where a

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Speaker 1: bond hearing would be required every six months. So there's

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Speaker 1: a hook here because the justices sent the case back

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Speaker 1: to the Ninth Circuit, and the a c l U

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Speaker 1: says they are going to go over the Ninth Circuit

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Speaker 1: now and seek bail hearings with constitutional arguments. What might

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Speaker 1: those be? So the argument is that there's that at

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Speaker 1: some point an immigrants removal process takes so long that

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Speaker 1: it's unconstitutional to hold them forever without a bond hearing

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Speaker 1: to determine whether they are too dangerous to be released

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Speaker 1: or whether they are some sort of unacceptable flight risk.

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Speaker 1: And so courts have grappled around the country on one

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Speaker 1: off basis not not class action. And that's a key

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Speaker 1: fact because the Supreme Court is saying these might not

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Speaker 1: be something that could be decided as a class Every

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Speaker 1: individual might have to file an individual claim. But courts

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Speaker 1: around the country have held an individual one off cases

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Speaker 1: that if an immigrants removal proceedings takes longer than a year,

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Speaker 1: that maybe after a year it becomes unconstitutional to hold

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Speaker 1: them without a bond hearing. That that really the government

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Speaker 1: has a burden to try to decide, one way or

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Speaker 1: another the fate of the immigrants in a year or less.

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Speaker 1: If we're gonna mandatorially detain them. But the problem is

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Speaker 1: the reason the court says this is not to acceptable

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Speaker 1: to a class is that there are sometimes where the

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Speaker 1: people in detention engaging dilatory tactics to delay their cases

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Speaker 1: in order to get released. And so this is why

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Speaker 1: they say it needs to be decided on a one

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Speaker 1: off case a basis instead of making a categorical rule.

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Speaker 1: So Justice Pryor wrote an impassioned descent, joined by Justice

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Speaker 1: is Ruth Bader Ginsburg and Sonya. So to Mayor tell

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Speaker 1: us more about the descent. Well, so the descent is

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Speaker 1: saying that the statute is clearly readable in a way

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Speaker 1: that permits uh. Two kinds of interpretations. One that there

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Speaker 1: there one way to interpret the statute. UH, you a

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Speaker 1: person would be able to have released because the detention

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Speaker 1: is on the statute if you look at like a

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Speaker 1: pure literal meaning without any sort of context, the statutes

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Speaker 1: has detained them for their removal proceedings, meaning to detain

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Speaker 1: them until the eating starts. So you detain a person

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Speaker 1: and you get their proceedings started, and at that point

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Speaker 1: the detention ceases to be mandatory, and so the substance.

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Speaker 1: Those are two ways of reading the statute that either

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Speaker 1: the detention is only mandatory until the point that the

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Speaker 1: removal proceedings starts, as opposed to that the detention is

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Speaker 1: mandatory for the entire length of the removal proceeding, even

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Speaker 1: if it's five years, ten years, twenty years. That because

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Speaker 1: of that, you can't have an interpretation that allows five

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Speaker 1: to twenty years of immigration detention. So we need one

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Speaker 1: that permits bond hearings after a length of time. The

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Speaker 1: problem with the Brier and other arguments is that there's

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Speaker 1: nowhere if you go look in the in the in

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Speaker 1: the actual code, there's nowhere that it says six months.

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Speaker 1: Six months is just literally taken out of nowhere and

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Speaker 1: invented as a standard, and so that really is a

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Speaker 1: a problem with the interpretation. Whereas in the post removal cases,

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Speaker 1: which is where this all started from. It used this

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Speaker 1: used to be a concept that was applied only to

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Speaker 1: people who we could deport, but the country we're trying

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Speaker 1: to deport them two doesn't accept them, like Cuba or

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Speaker 1: Cambodia or some other places. And then we have two choices,

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Speaker 1: detain a person for the rest of their life or

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Speaker 1: let them out. And so there the Court said it's unconstitutional.

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Speaker 1: Off after six months of trying to deport them, you cannot,

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Speaker 1: you cannot do it. Then you have to let them out.

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Speaker 1: But that statute had the words days in there and

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Speaker 1: this one doesn't. And tomorrow from a sorry Leon, let's

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Speaker 1: let's just move on for for a moment. We only

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Speaker 1: have about a minute left. The Court had asked for

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Speaker 1: additional briefs on the constitutional question but never reached it

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Speaker 1: isn't why did the court not reach that question? They

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Speaker 1: want the Ninth Circuit to determine two questions. Number one,

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Speaker 1: can this be viewed as a class Can all people

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Speaker 1: detain past a certain amount of fine be viewed the same?

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Speaker 1: Or do these have to be individually decided based on

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Speaker 1: the length of detension in an individual's case. And then

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Speaker 1: once that decided, the Supreme Courts can of then figure out, okay,

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Speaker 1: at what length of time does the tension cease to

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Speaker 1: be constitutional? But they did not want to opine on

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Speaker 1: that without individual fact patterns to decide individual cases. So

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Speaker 1: the a c l U says that it is gladly

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Speaker 1: going to go before the Ninth Circuit and relitigate this

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Speaker 1: case and use a constitutional argument and we should mention

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Speaker 1: that even defendants accused of serious crimes have the right

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Speaker 1: to go before a judge and request fail Thank you, Leon.

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Speaker 1: That's Leon Fresco, a partner at Holland and Night. Thanks

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Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on bloomberg dot com slash podcast. I'm June Rosso. This

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Speaker 1: is Bloomberg yea