Latest / Bloomberg Law / Did Trump Defy a Court Order?

Transcript

Did Trump Defy a Court Order? · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio
0:09
Speaker 1: full to President Bucelli and to al Salvador for accepting
0:12
Speaker 1: these heinous monsters where they will face justice. An escalating
0:16
Speaker 1: legal fight over the Trump administration's decision to deport hundreds
0:21
Speaker 1: of alleged Venezuelan gang members to L Salvador. On Saturday,
0:25
Speaker 1: a federal judge issued an order temporarily barring the deportations
0:30
Speaker 1: under an eighteenth century wartime law invoked by President Donald Trump.
0:35
Speaker 1: The White House says the administration did not refuse to
0:39
Speaker 1: comply with a court order. Join me. His immigration law
0:42
Speaker 1: expert Leon Fresco, a partner at Hollanda Knight, tell us
0:45
Speaker 1: about this eighteenth century wartime law, it's only been used
0:51
Speaker 1: three times before the War of eighteen twelve, World War One,
0:55
Speaker 1: and World War Two.
0:57
Speaker 2: Well, as you said, the Alien Enemies Bag from seventeen
0:59
Speaker 2: eighty nine from the John Adams administration was there to
1:04
Speaker 2: prevent a situation where essentially either we would get invaded
1:10
Speaker 2: and we couldn't take people outside of the United States,
1:14
Speaker 2: or we would basically be invaded surrepficiously by people who
1:19
Speaker 2: would then sort of pick up arms later at some
1:21
Speaker 2: future point and destabilize the United States. And as you said,
1:25
Speaker 2: it was invoked three times in the history of the
1:28
Speaker 2: United States. And so the question in President Trump's mind
1:32
Speaker 2: is can this be invoked now to stop what he
1:36
Speaker 2: deems to be an invasion in the same sense, which
1:40
Speaker 2: would be that if people from Venezuela are coming at
1:43
Speaker 2: large numbers who then come into the United States and
1:46
Speaker 2: destabilize certain communities. He feels like that's no different than
1:50
Speaker 2: if it had been a coordinated invasion. But said, he
1:53
Speaker 2: can designate this group trend Ragua, which is a sort
1:56
Speaker 2: of destabilizing gang, and say that they came in with
2:00
Speaker 2: the passive acquiescence of the Venezuelan government, such that they're
2:04
Speaker 2: a hostile group actor who can be deported without a hearing.
2:09
Speaker 2: And so that's what's at stake here, is is that
2:13
Speaker 2: something that's possible to do? But quite frankly, even more important,
2:18
Speaker 2: the real threshold question is will the court say that
2:22
Speaker 2: a determination under the Alien Enemies Act is what's called
2:25
Speaker 2: a political question, meaning even if the judges disagree, they
2:29
Speaker 2: won't get into it because they just won't review it.
2:31
Speaker 2: They'll just say, look, that's for the president to make
2:34
Speaker 2: the president swears it out to the Constitution. And if
2:37
Speaker 2: the president thinks that somebody is a dangerous organization, we
2:41
Speaker 2: don't have time to review this in the courts. They
2:44
Speaker 2: just need to make this invocation and get the people out.
2:47
Speaker 2: And so that's what's going to be. To me, the
2:50
Speaker 2: most interesting threshold question is does this even get a
2:54
Speaker 2: review in the first place. Then you have the second
2:57
Speaker 2: and third order questions. It just gets a review. What
3:00
Speaker 2: is the review? Is the review? Did you make the
3:03
Speaker 2: right call? Is this a destabilizing group? And then the
3:07
Speaker 2: third order question is, well, is this particular human being
3:11
Speaker 2: that you're about to deport one of the people who's
3:13
Speaker 2: a member of the group, and in what way can
3:16
Speaker 2: someone challenge such a determination? So all of those questions
3:20
Speaker 2: are up progress here.
3:21
Speaker 1: So it just has to be a destabilizing group or
3:23
Speaker 1: does it have to actually be that they're perpetrating an invasion?
3:29
Speaker 2: Well, you have to declare that there's an invasion, there's
3:31
Speaker 2: no doubt about it. But it doesn't have to be
3:34
Speaker 2: an official invasion in the way people think about it,
3:38
Speaker 2: where people come in uniform and they actually all have
3:43
Speaker 2: guns and helmets and they cross the border. That part
3:47
Speaker 2: is not necessary here. What is necessary is that you
3:52
Speaker 2: find that people basically are entering the United States again
3:58
Speaker 2: in an invasion, so to speak. I'll read the text
4:01
Speaker 2: whenever there's a declared war between the United States and
4:04
Speaker 2: any foreign nation or government, here's the key. Or any
4:07
Speaker 2: invasion or predatory incursion is perpetrated, attempted, or threatened against
4:13
Speaker 2: the territory of the United States by any foreign nation
4:16
Speaker 2: or government. As the President makes public proclamation of the event,
4:20
Speaker 2: all native citizens enizens are subjects of the hostile nation
4:24
Speaker 2: who shall be within the United States and non naturalized
4:27
Speaker 2: shall be liable to be apprehended, restrained, secured, and remove
4:30
Speaker 2: the alien enemies. And so the point being, you don't
4:33
Speaker 2: actually need that declared war, You just need an invasion
4:37
Speaker 2: or predatory incursion to be proclaimed. And so that's going
4:43
Speaker 2: to be the route that is proclaimed. There.
4:46
Speaker 1: Five Venezuelans who are in federal custody filed a class
4:50
Speaker 1: action lawsuit in federal court claiming that their expulsion under
4:55
Speaker 1: this eighteenth century law would violate FI federal law and
5:00
Speaker 1: the constitutions guarantee to do process. Tell us what the
5:04
Speaker 1: judge decided on Saturday.
5:07
Speaker 2: Well, what the judge basically said, is this is super complicated,
5:11
Speaker 2: as we've just laid out. There's a lot of issues here.
5:14
Speaker 2: You know, again, does the court even have jurisdiction to
5:17
Speaker 2: do this? Can the court only do specific people? Can
5:21
Speaker 2: they do the whole group? Can they do the nationwide injunction?
5:24
Speaker 2: What is the method for reviewing this all of that?
5:27
Speaker 2: So what the court said is if these people are
5:30
Speaker 2: all in detention, and that means there's no harm that
5:35
Speaker 2: will come from this group remaining in detention, then all
5:39
Speaker 2: I want to do, as the court is preserve the
5:40
Speaker 2: status quo, meaning keep these people in detention, but don't
5:44
Speaker 2: actually remove them yet so that I can decide all
5:47
Speaker 2: these other issues in the case. And what he had
5:49
Speaker 2: said as an oral order during the hearing is if
5:52
Speaker 2: there's people that are about to leave or are in
5:54
Speaker 2: the air, then they need to be returned back because
5:57
Speaker 2: he knew that the time was imminent, and so he
6:00
Speaker 2: said that in the oral but that wasn't in the
6:01
Speaker 2: written decision. And so that is one of the issues
6:05
Speaker 2: here is was the compliance needed for the oral or
6:08
Speaker 2: for the written decision or for both.
6:10
Speaker 1: There's some confusion. So the White House Press Secretary said
6:15
Speaker 1: that the administration did not refuse to comply with a
6:19
Speaker 1: court order, but also that the administration believed the order
6:23
Speaker 1: was not lawful, unconstitutional, and unfair. It had no lawful
6:28
Speaker 1: basis because it was issued after the aliens had already
6:31
Speaker 1: been removed from US territory, So it's unclear if they
6:36
Speaker 1: disobeyed the.
6:37
Speaker 2: Order or not. Who, what, when, where and why will
6:40
Speaker 2: have to be established first, and then there will be
6:43
Speaker 2: a determination after the who, what, when, where and why
6:46
Speaker 2: as to whether, then based on that, was there an
6:51
Speaker 2: ability to do what was done or was there not
6:54
Speaker 2: a legal ability to do what was done? And then
6:57
Speaker 2: based on that, if the court wants to go forward
7:00
Speaker 2: and say that something was done that should have been done,
7:03
Speaker 2: and the court has to decide what the remedy is,
7:05
Speaker 2: and could the remedy be bringing all these people back
7:08
Speaker 2: to the United States or could it be something even
7:11
Speaker 2: more serious than that, And that's gonna be the questions.
7:17
Speaker 2: And you know, I will say this, having worked in
7:19
Speaker 2: the Department of Justice and having done this for a
7:22
Speaker 2: couple of decades, it's not unusual. The courts have issued
7:26
Speaker 2: these orders plenty of times where they say someone has
7:31
Speaker 2: to be returned back to the United States who's already
7:33
Speaker 2: been deported, the government has to find them in the
7:36
Speaker 2: foreign country. They don't even know where they are. They
7:37
Speaker 2: have to try to find them and bring them back,
7:40
Speaker 2: or the plane is in the middle of the flight
7:42
Speaker 2: and they have to bring it back. So I think
7:45
Speaker 2: the judge was going along with that sort of pattern
7:48
Speaker 2: and practice that had been happening for decades now, because
7:52
Speaker 2: the judges knew that these flights could be turned back.
7:55
Speaker 2: And this is just the first time an administration has
7:59
Speaker 2: taken this position. So we'll be interesting to see what happens.
8:02
Speaker 2: It's just different than what I've been done in the past.
8:04
Speaker 2: But I don't think this has ever been litigated to
8:06
Speaker 2: be fair, So we'll have to wait and see on that.
8:09
Speaker 1: You mean, whether the order applies if the plane is
8:13
Speaker 1: outside the territory of the United.
8:14
Speaker 2: States, right, whether the order applies that the plane is
8:17
Speaker 2: outside the territory. And also just logistically, there are safety
8:22
Speaker 2: issues involved getting all of these folks on the plane.
8:26
Speaker 2: What if you're closer to the landing than to the arrival,
8:29
Speaker 2: you know, does the plane have enough fuel? All these
8:32
Speaker 2: sorts of questions. You know that none of these things
8:34
Speaker 2: we should take for granted, and all need to be
8:36
Speaker 2: part of an inquiry to determine these things, because these
8:40
Speaker 2: are all super complicated questions. And also to remove people
8:44
Speaker 2: is quite an operation. Some people are literally given medicine
8:49
Speaker 2: and safety precautions and all this other stuff, and so
8:53
Speaker 2: trying to just unwind all of that isn't as easy
8:55
Speaker 2: as people think it is to be fair to the
8:57
Speaker 2: administration in that sense.
8:59
Speaker 1: And what about the idea of paying another country to
9:05
Speaker 1: keep these Venezuelans in prison, and apparently it's a notorious prison.
9:11
Speaker 2: Well, this is what's complicated is if you could remove
9:15
Speaker 2: the people back to Venezuela, it would undermine the argument
9:20
Speaker 2: that this is part of an incursion because of Venezuela
9:23
Speaker 2: didn't care and accepted the people back. Then it would
9:27
Speaker 2: be more complicated to say these are people that the
9:30
Speaker 2: Venezuelan government wants in the United States in order to
9:34
Speaker 2: destabilize America, because if they're gladly accepting them back, that's
9:38
Speaker 2: not the case. So this Elsavador thing becomes part of
9:43
Speaker 2: the analysis because what you're saying is Venezuela won't accept
9:46
Speaker 2: these people back, so we have to remove them somewhere.
9:50
Speaker 2: And so it is permitted under the immigration law to
9:53
Speaker 2: remove people to a third country. What gets complicated here
9:58
Speaker 2: is what then, Because typically when you do these removals
10:03
Speaker 2: to a third country, you just remove the people, meaning
10:06
Speaker 2: they get off the plane and they live in the
10:09
Speaker 2: third country. It's much rarer. It's not unheard of. Again,
10:13
Speaker 2: none of these things are unheard of. They're all just
10:15
Speaker 2: less common than more common that the people are detained
10:20
Speaker 2: to a third country and they're put into a detention scenario.
10:26
Speaker 2: And so the question is, well, what would be the
10:29
Speaker 2: length of time that those individuals would be subject to
10:32
Speaker 2: that detention Because depending on that then there's claims people
10:37
Speaker 2: could make back in the United States about whether that
10:40
Speaker 2: would violate a law called the Convention against Torture if
10:43
Speaker 2: you're going to detain people indefinitely for that amount of time.
10:48
Speaker 2: So this is a very fluid situation, and the courts
10:51
Speaker 2: are going to have to grapple with all of those questions.
10:54
Speaker 1: So many many questions and so few answers. Coming up
10:57
Speaker 1: next on the Bloomberg Laanchow, I'll continue this convertation with
11:01
Speaker 1: Leon Fresco of Holland and Knight, a lawsuit over Trump
11:04
Speaker 1: executive orders that threaten to deport people who express views
11:08
Speaker 1: critical of the US or Israeli government. I'm June Grosso.
11:13
Speaker 1: When you're listening to Bloomberg. President Donald Trump is invoking
11:17
Speaker 1: the Alien Enemies Act of seventeen ninety eight, a wartime
11:22
Speaker 1: authority that allows the president broader leeway on policy and
11:26
Speaker 1: executive actions, to speed up mass deportations. Trump claims that
11:30
Speaker 1: the Venezuelan gang Trendyarragois is invading the United States. The
11:36
Speaker 1: Act has only been used three times before, all during Wars.
11:41
Speaker 1: I've been talking to immigration law expert Leon Fresco, a
11:44
Speaker 1: partner at Holland and Knight. So Leon plaintiffs in a
11:47
Speaker 1: couple of cases have accused the Trump administration of not
11:51
Speaker 1: strictly following court orders or sort of slow walking their
11:56
Speaker 1: response to court orders. And now there's an indication that
11:59
Speaker 1: the Trumpet minute frstration violated a court order in deporting
12:04
Speaker 1: a doctor from Lebanon, a kidney transplant specialist who was
12:08
Speaker 1: supposed to start work at Brown University as an assistant
12:12
Speaker 1: professor of medicine, even though federal Judge Leo Sorkin issued
12:17
Speaker 1: an order that an in person hearing be scheduled for
12:21
Speaker 1: today with the doctor brought to court. So these instances
12:25
Speaker 1: seem to be piling up well.
12:28
Speaker 2: Again, without getting into the specifics of each individual case,
12:33
Speaker 2: I think it is important that when you do these operations,
12:37
Speaker 2: everybody tried to make sure that they're doing exactly what
12:41
Speaker 2: they're supposed to do, because in the long run, this
12:43
Speaker 2: will make the operations better for everyone involved, for the
12:47
Speaker 2: foreign nationals, for the government, for the courts, for the society.
12:53
Speaker 2: And so I think the key is if you have
12:56
Speaker 2: this accepted reality that there will be more enforcements, there
13:00
Speaker 2: will be more removals. This is something that was campaigned
13:03
Speaker 2: on and was elected on. The question is how can
13:07
Speaker 2: that be done in a way where it is in
13:11
Speaker 2: accordance with the way Congress wanted it to be done,
13:15
Speaker 2: with the way the courts wanted to be done. And
13:18
Speaker 2: there is no doubt that this administration can have that
13:22
Speaker 2: kind of robust enforcement, and so the question is just
13:26
Speaker 2: doing it in a way where it's beyond reproach. And
13:29
Speaker 2: so hopefully, you know there are starts to this, but
13:33
Speaker 2: hopefully everything can be done in that way. But yes,
13:37
Speaker 2: you're seeing cases where that's certainly being challenged.
13:41
Speaker 1: I thought that Venezuela had agreed to take back Venezuelans.
13:46
Speaker 2: Yes, this is where it's complicated. I think the key
13:48
Speaker 2: is are the people that Venezuela is agreeing to take
13:52
Speaker 2: back just people who are not fitting this criminal profile
13:57
Speaker 2: and instead people who are fitting a profile file where
14:01
Speaker 2: perhaps it's just someone who came on a visitor visa
14:04
Speaker 2: or a student visa and overstate that visa, and so
14:07
Speaker 2: then it's just a matter of repatriating someone like that
14:10
Speaker 2: as opposed to someone with these criminal profiles, which again,
14:14
Speaker 2: it does make it harder to invoke the Alien Enemies
14:19
Speaker 2: Act if you can deport the people back to that country,
14:23
Speaker 2: because the point is it undermines the argument that there
14:27
Speaker 2: was an incursion there if the country's accepting it. So
14:30
Speaker 2: I think if you're going to try to establish this
14:33
Speaker 2: Alien Enemies Act, what you have to say is we've
14:35
Speaker 2: asked Venezuela to take these individuals back, and they won't
14:39
Speaker 2: take them back.
14:40
Speaker 1: Is this an indication of the difficulty that the Trump
14:44
Speaker 1: administration is having deporting people because you know, as we've
14:49
Speaker 1: discussed before, during his campaign, Trump said, you know, millions
14:53
Speaker 1: of people are going to be deported, and we have
14:56
Speaker 1: Tom Holman, the Borders are saying, first they're going to
15:00
Speaker 1: people who have criminal violations, and you know, we haven't
15:04
Speaker 1: seen those mass deportations that were promised.
15:08
Speaker 2: Well, the problem is this, there's only so many people
15:12
Speaker 2: that are in the pipeline for deportation right now, and
15:15
Speaker 2: those are the people with final orders of removal, and
15:18
Speaker 2: those are the people with criminal convictions that are easy
15:22
Speaker 2: enough to get removal orders for because they don't have
15:25
Speaker 2: a way to challenge any further they're removal. That number
15:29
Speaker 2: is a finite number, and it's going to be complicated
15:32
Speaker 2: to get more than that number in a rapid fashion.
15:36
Speaker 2: And so the Alien Enemies Act is designed to try
15:40
Speaker 2: to get larger segments out of the United States without
15:44
Speaker 2: having to go through that administrative hearing process, because they
15:48
Speaker 2: don't want to have to take the months or years
15:50
Speaker 2: where this is necessary. The courts right now are taking
15:54
Speaker 2: cases for twenty thirty and twenty thirty one, and so
15:58
Speaker 2: the problem is what do you do with that situation
16:00
Speaker 2: if you're trying to increase the pipeline And there's also
16:04
Speaker 2: no funding for this, which is something they're looking to
16:07
Speaker 2: fix in the Reconciliation bills, and so from all of
16:11
Speaker 2: these perspectives, it's just a matter of I don't think
16:15
Speaker 2: anybody is going to doubt that a year or two
16:18
Speaker 2: years from now, the removal numbers will be much much
16:20
Speaker 2: higher than they are now. The question is is that
16:25
Speaker 2: going to be a patient, ramping up approach to get
16:28
Speaker 2: there or are there going to be efforts to try
16:31
Speaker 2: to get that number as high as possible as soon
16:34
Speaker 2: as possible.
16:36
Speaker 1: And we've discussed the pending case against the former Columbia
16:41
Speaker 1: graduate student where the Trump administration is using a different provision,
16:47
Speaker 1: using the Secretary of State.
16:49
Speaker 2: Right in that case, they're saying that the Secretary of
16:51
Speaker 2: State has designated the Columbia student as a person who
16:55
Speaker 2: has serious adverse consequences to the US government and needs
17:00
Speaker 2: to be deported on that basis. And this is actually
17:03
Speaker 2: similar to the Alien Enemies Act in the sense of
17:06
Speaker 2: is it something that is amenable to judicial review or not?
17:10
Speaker 2: And that's the question. This is yet another way to
17:13
Speaker 2: remove people that's intended to not have judicial review, and
17:17
Speaker 2: the question is will the court assign judicial reviews to
17:20
Speaker 2: this or not.
17:22
Speaker 1: And at Cornell University, professor and two grad students are
17:26
Speaker 1: suing Trump and DHS over executive orders that threaten to
17:31
Speaker 1: deport and prosecute those who express views critical of the
17:36
Speaker 1: US or Israeli governments. This perhaps is also an outgrowth
17:40
Speaker 1: of the arrest of that Columbia University graduate student.
17:45
Speaker 2: Right. I think what's happening is that there are students
17:48
Speaker 2: who are saying, well, rather than wait to see if
17:52
Speaker 2: I get arrested, maybe it's a better lead litigation strategy
17:56
Speaker 2: for me to proactively sue for some sort of declaratory
18:01
Speaker 2: and injunctive relief so that I can actually sort of
18:06
Speaker 2: control my own destiny in the United States. I do
18:11
Speaker 2: think this is the kind of thing where the government,
18:13
Speaker 2: the federal government is going to say, there's no jurisdiction
18:16
Speaker 2: to hear this, because you can't actually hear these things
18:20
Speaker 2: until you're placed in removal proceedings. The risk of being
18:24
Speaker 2: in removal proceedings is not enough. You actually have to
18:26
Speaker 2: be placed in removal proceedings, then make these challenges, and
18:31
Speaker 2: then if you lose, only then you can go to
18:34
Speaker 2: federal courts and appeal your removal order. That's what the
18:38
Speaker 2: federal government argues in all of these cases, and so
18:41
Speaker 2: it will have to be a departure from that precedent
18:45
Speaker 2: by the court that they're going to actually get at
18:47
Speaker 2: these issues proactively and upfront. I understand the strategy why
18:52
Speaker 2: one would want to control their own destiny, but the
18:55
Speaker 2: case law isn't exactly where these students would want it
18:59
Speaker 2: to be with regard to being able to challenge these
19:02
Speaker 2: things upfront when there isn't currently a deportation proceeding pendent.
19:07
Speaker 1: I'm not sure if the students that just sued are
19:10
Speaker 1: here on student visas or not.
19:13
Speaker 2: Well, yeah, that's not clear either. And if they're just
19:17
Speaker 2: attacking the free speech without anything related to immigration, well
19:23
Speaker 2: then that's fine. That's going to be its own lawsuit
19:25
Speaker 2: and they can attack that and that will just be
19:28
Speaker 2: decided on the merite. But if one of the pieces
19:30
Speaker 2: of relief that they're asking for is that this order
19:33
Speaker 2: cannot be used as a predicate for an immigration action,
19:37
Speaker 2: that's where I'm saying that they're going to have a
19:39
Speaker 2: tough time actually getting that part of the release.
19:43
Speaker 1: Well, some of these issues are definitely going to end
19:45
Speaker 1: up at the Supreme Court. Thanks so much, Leon. That's
19:48
Speaker 1: Leon Fresco of Honda Knight. Same sex marriage became legal
19:53
Speaker 1: nationwide in June of twenty fifteen, when the Supreme Court
19:56
Speaker 1: ruling in the case of Obergerfel v. Hodges ublish the
20:00
Speaker 1: right to same sex marriage under the Equal Protection Clause
20:04
Speaker 1: and the Due Process Clause of the Fourteenth Amendment. Same
20:07
Speaker 1: sex marriage rights were bolstered in twenty twenty two when
20:11
Speaker 1: Congress passed the Respect for Marriage Act, but conservative legislators
20:15
Speaker 1: are increasingly speaking out against that landmark ruling, and this year,
20:20
Speaker 1: legislatures in a handful of states have introduced measures urging
20:24
Speaker 1: the Supreme Court to overturn Obergerfeld. In North Dakota, the
20:29
Speaker 1: House passed such a resolution, but it failed to pass
20:32
Speaker 1: in the Senate last Thursday. These resolutions have no legal weight,
20:37
Speaker 1: but they do signal the opinions of the legislators. Add
20:41
Speaker 1: to that the fact that two conservative Supreme Court Justices,
20:45
Speaker 1: Clarence Thomas and Samuel Alito, are on record as wanting
20:49
Speaker 1: to revisit the Obergerfelt case, joining me his family law
20:53
Speaker 1: attorney Susan Bender, a partner at benderin Crane. So we
20:57
Speaker 1: can put this on too context explain in the basis
21:01
Speaker 1: of the Supreme Court's ruling in know Bergerfeld.
21:04
Speaker 3: Well, first, you know, there are a couple of things
21:05
Speaker 3: you have to look at here. Obergeffeld didn't come out
21:08
Speaker 3: of the woodwork. Aubergeffel was in twenty fifteen, and Obergeffel
21:14
Speaker 3: on the heels of United statesy Windsor said that a
21:18
Speaker 3: state is required to give a license between two people
21:21
Speaker 3: of the same sex. That's a very big deal, right,
21:24
Speaker 3: because at no point before that did the United States
21:27
Speaker 3: Supreme Court say that you got to give a license
21:30
Speaker 3: to two people the same sex. So that was Obergetfel
21:33
Speaker 3: in twenty fifteen. Since twenty and fifteen, states around the country,
21:38
Speaker 3: some states have been finding that some states are okay
21:40
Speaker 3: with it. In New York State is totally okay with it. Well,
21:43
Speaker 3: New York State in twenty eleven came out with a
21:45
Speaker 3: statute which says, yep, you got to give license to
21:48
Speaker 3: same sex couples in New York State, which is was
21:51
Speaker 3: a very big deal in twenty eleven. Let me let
21:53
Speaker 3: me assure you after years of discrimination against non heterosexuals.
21:59
Speaker 3: It was a a landslide decision.
22:02
Speaker 1: Justices Clarence Thomas and Samuel Alito have openly expressed that
22:08
Speaker 1: they would like to revisit the Obergerfeld decision, and, as
22:13
Speaker 1: Thomas said, in the case that overturned the constitutional right
22:18
Speaker 1: to abortion the Dobbs case. He said, as I have
22:21
Speaker 1: previously explained, substantive due process is an oxymoron that lacks
22:26
Speaker 1: any basis in the Constitution. He called it a legal
22:29
Speaker 1: fiction that is particularly dangerous. Explain what substantive due process
22:34
Speaker 1: is and how it's important in these decisions.
22:37
Speaker 3: He wrote a concurring opinion, and he specifically said, he
22:41
Speaker 3: very clearly said that it's time to quote correct the error, okay,
22:46
Speaker 3: and the error is that, as you noted, that substantive
22:50
Speaker 3: process precedents are demonstra erroneous because there is nothing in
22:54
Speaker 3: the Constitution. There's nothing in the Constitution according to Alito
22:58
Speaker 3: and Thomas, which gave the court the right to expand
23:02
Speaker 3: what would they call fundamental rights. Right to marry, right
23:06
Speaker 3: to an abortion, right to interracial relationships. I mean, these
23:10
Speaker 3: are all under the number of various provisions of the
23:14
Speaker 3: fourteenth Amendment. And if it was up to Thomas and Alito,
23:18
Speaker 3: there would be no subject of due process, which means
23:21
Speaker 3: contraception under Griswold, right to marry, livings against Virginia. And
23:26
Speaker 3: then we have Obergefel and all the rights that many
23:31
Speaker 3: of us considered to be our fundamental due process rights.
23:35
Speaker 3: Thomas is saying it's not fundamental and it's not due process.
23:38
Speaker 3: You should go to the states and work it out
23:40
Speaker 3: of the states.
23:42
Speaker 1: Are people concerned that there are more justices on the
23:45
Speaker 1: Supreme Court that might want to revisit Obergefeld.
23:50
Speaker 3: So now getting to the writing on the wall, and
23:53
Speaker 3: this is an important point. As you noted in Dobbs,
23:56
Speaker 3: Thomas said that it's time to correct the error. It
23:59
Speaker 3: is clear to many of us who watch the Court
24:04
Speaker 3: that there will come a case percolating, probably procolating right
24:09
Speaker 3: now in the States where Thomas and Alito are going
24:12
Speaker 3: to have the opportunity to overturn substanitute process cases, and
24:16
Speaker 3: specifically Obergefell and the United States se Windsor and perhaps
24:22
Speaker 3: Gruswold and other substance thute process cases. There's no question
24:26
Speaker 3: in our minds that is going to happen. The question
24:28
Speaker 3: is not whether. The question is when. And that's an
24:31
Speaker 3: important factor because cases have to percolate up to the
24:34
Speaker 3: Supreme Court. You just don't go to the Supreme Court
24:37
Speaker 3: and say, hey, listen, I want to undo Obergeffel, which
24:40
Speaker 3: some of the states have been trying to do by
24:41
Speaker 3: passing resolutions. So the Court. Supreme Court will have to
24:45
Speaker 3: take the case and on the issue of Obergeffel and
24:49
Speaker 3: the Respect for Marriage Act, we believe it's going to happen.
24:52
Speaker 3: We just don't know when, and of course we're hoping
24:55
Speaker 3: it doesn't happen within this administration. I don't want to
24:58
Speaker 3: get political, but if it happened within this administration, because
25:02
Speaker 3: of the event right now, it's pretty clear to us
25:04
Speaker 3: that Obergefell will be reversed.
25:06
Speaker 1: There as like thirty five states that have laws or
25:10
Speaker 1: constitutional amendments on the books that would reinstate bans on
25:14
Speaker 1: same sex marriage if the Obergefel ruling were overturned, and
25:19
Speaker 1: some states have introduced resolutions asking the Supreme Court to
25:23
Speaker 1: overturn Obergerfeld. None of those has passed that I know of.
25:27
Speaker 3: Well, we have well right now we have nine states
25:32
Speaker 3: which have formulated resolutions to encourage the Supreme Court to
25:37
Speaker 3: overturn Obergeffell. That we know for sure as of right now,
25:43
Speaker 3: many states have same sex marriage on the books. So
25:46
Speaker 3: the question then becomes, I'm going to say, Thomas and
25:50
Speaker 3: Alito going to send it back to the states for
25:52
Speaker 3: the states to maybe reassess Obergeffell in light of this administration,
25:58
Speaker 3: that would.
25:58
Speaker 1: Be, my guests, the Respect for Marriage Act in twenty
26:02
Speaker 1: twenty two. What does that do?
26:05
Speaker 3: Well, let me just say the Respect for Marriage Act,
26:07
Speaker 3: I think was a brilliant name because in nineteen and
26:10
Speaker 3: I have to say this, nineteen ninety six, it was
26:14
Speaker 3: President Clinton at that point, supported by the foreign President Biden,
26:19
Speaker 3: the Defensive Marriage Act, which said that a marriage could
26:23
Speaker 3: be between only one man and one woman. So now
26:25
Speaker 3: fast forward to twenty twenty two, some brilliant I would say,
26:29
Speaker 3: congress person said no, we're gonna call it the respects
26:31
Speaker 3: Marriage Act. And what the Respect for Marriage Act says
26:35
Speaker 3: is And by the way, this was congressional. This was
26:40
Speaker 3: congressional after Dobbs. So after Dobbs that come out with
26:44
Speaker 3: the Respectful Marriage Act was says well, marriage can be
26:47
Speaker 3: between members of the same sex. And if a particular
26:51
Speaker 3: state grants marriage between same sex couples, the other states
26:56
Speaker 3: have to give a comedy. They have to recognize it,
26:58
Speaker 3: which is important. So for example, in New York State,
27:02
Speaker 3: if we have same sex marriage couple and they moved
27:04
Speaker 3: to North Dakota, which no longer recognize the same sex
27:07
Speaker 3: marriage in death state, North Dakota has to respect New
27:10
Speaker 3: York state law. That's a very big deal, and that
27:13
Speaker 3: was twenty twenty two unto the Biden administration. On the
27:16
Speaker 3: heels of Dobbs.
27:18
Speaker 1: Let's just say that the Supreme Court overturns same sex marriage,
27:24
Speaker 1: then Congress has to also overturn the Respect for Marriage Act.
27:28
Speaker 3: Yes, unless unless the Supreme Court both overturns over Geffell
27:35
Speaker 3: and reverses the Congressional decision. That's possible. Totally possible. And
27:41
Speaker 3: that's my guess again, you know, for talking opinion here,
27:45
Speaker 3: that's what the Supreme Court is waiting to do. They're
27:47
Speaker 3: waiting for this, for the ability to address substantives due process,
27:51
Speaker 3: address over Geffell, reverse it, and reverse the Respect for
27:55
Speaker 3: Marriage Act. Just like DOMA was overturned in part by
27:59
Speaker 3: the United States. They're in twenty thirteen. The Supreme Court
28:02
Speaker 3: has the power to overturn the Respect for Marriage Act.
28:05
Speaker 3: The question is will they do it.
28:08
Speaker 1: As far as Trump goes, he's attacked LGBTQ rights since
28:13
Speaker 1: day one during his campaign, et cetera. But he hasn't
28:17
Speaker 1: directly targeted same sex marriage, has he.
28:20
Speaker 3: Not to my knowledge, not to mych And what he
28:22
Speaker 3: targeted was more having to do with the transgender issues.
28:26
Speaker 3: He has not to my knowledge, attacked or addressed same
28:30
Speaker 3: sex marriage.
28:31
Speaker 1: If the Supreme Court were to reverse the right to
28:35
Speaker 1: same sex marriage, then you have all these couples who
28:38
Speaker 1: are already married, many of whom have children. It would
28:43
Speaker 1: throw their lives into chaos. I mean, what would happen?
28:46
Speaker 3: So that's where family court practitioners do best. There are
28:52
Speaker 3: two major problems if same sex marriage is reversed. One
28:57
Speaker 3: is financial, of course, and one is parents. Who is
29:01
Speaker 3: the parent? So, for example, in New York State it
29:04
Speaker 3: is presumed and in many states also a child born
29:07
Speaker 3: of the marriage is presumed to be the child of
29:10
Speaker 3: that marriage. So in New York State, the non biological
29:15
Speaker 3: parent can go into a hospital, make decisions on behalf
29:19
Speaker 3: of the child, and roll the childs in school do
29:21
Speaker 3: all the things their parents do. So if Obergeffel and
29:24
Speaker 3: the respectful marriage acts are overturned, does it call into
29:28
Speaker 3: question the ability of the other parent to make those
29:32
Speaker 3: decisions on behalf of the child, and then their state
29:35
Speaker 3: decisions and their medical decisions, in the school decisions, there
29:38
Speaker 3: are all the kinds of decisions that parents have. Does
29:41
Speaker 3: a call into question in my view, it will, but
29:44
Speaker 3: it would require my opinion, both reversal of Obergeffel and
29:49
Speaker 3: the respectful Marriage Acts.
29:51
Speaker 1: What are you advising your clients who are in same
29:54
Speaker 1: sex marriages and have children? Are there any proactive steps
29:57
Speaker 1: that they're taking now?
29:59
Speaker 3: When are clients tell us they're going to travel, and
30:03
Speaker 3: if they travel to a state, let's say like Florida,
30:07
Speaker 3: we have called Florida attorneys, and Florida attorneys have prepared
30:11
Speaker 3: powers of attorney for both parents to be able to
30:16
Speaker 3: make decisions on behalf of that child for any purpose,
30:19
Speaker 3: for any purpose including financial, medical, hospitalization. Those are the
30:25
Speaker 3: big three issues off the top of my head right now.
30:27
Speaker 3: In terms of finances, we have our clients prepare everything
30:31
Speaker 3: from certain kind of life insurance trusts to actual life
30:36
Speaker 3: insurance policies, to owning property as joint tenants with rights
30:40
Speaker 3: of survivorship which means it goes from one party to
30:43
Speaker 3: the next party of party one passes away instead of
30:47
Speaker 3: going through the estate. There are issues having to do
30:51
Speaker 3: with estate planning or beneficial designations in wills. Which has
30:55
Speaker 3: wills mended? You know, typically it will say all of
30:59
Speaker 3: my properties to go to my children who survived well,
31:04
Speaker 3: we can't say my children who survive. We have to
31:06
Speaker 3: put in the names of the children who survived because
31:10
Speaker 3: if well, I'm not worthing of New York State. But
31:12
Speaker 3: if in another state parties moved to another state, will
31:15
Speaker 3: that state permit the beneficiary who's a child of the
31:21
Speaker 3: marriage in New York but not recognized in another state
31:25
Speaker 3: to inherit. So what we do is as family law practitioners,
31:30
Speaker 3: as we read the writing on the wall, and we
31:33
Speaker 3: do a state planning powers of attorney and then financial planning.
31:38
Speaker 1: Do you see any cases right now at the appellate
31:42
Speaker 1: level or lower court levels that might end up at
31:46
Speaker 1: the Supreme Court threatening same sex marriage?
31:50
Speaker 3: All right? So right now, you know, I comb the
31:54
Speaker 3: internet and I haven't seen yet any cases that are
32:00
Speaker 3: on all fours to make it to the Supreme Court
32:02
Speaker 3: on the issue of reversing ober Geftfel and the Respect
32:05
Speaker 3: for Marriage Act. But remember, there are organizations around the
32:08
Speaker 3: country looking for those cases to have the opportunity to
32:12
Speaker 3: work themselves up to the system to reverse ober Guestfell
32:15
Speaker 3: and the Respect for Marriage Act. But sitting here right
32:17
Speaker 3: now between you and me, there are no cases that
32:19
Speaker 3: I'm aware of that fit all fours.
32:21
Speaker 1: Thanks for joining me. That's Susan Bender of Bender and
32:25
Speaker 1: Crane and that's it for this edition of The Bloomberg
32:27
Speaker 1: Law Show. Remember you can always get the latest legal
32:30
Speaker 1: news on our Bloomberg Law Podcast. You can find them
32:33
Speaker 1: on Apple Podcasts, Spotify, and at www dot Bloomberg dot
32:38
Speaker 1: com slash podcast Slash Law, and remember to tune into
32:41
Speaker 1: The Bloomberg Law Show every weeknight at ten pm Wall
32:45
Speaker 1: Street Time. I'm June Grosso and you're listening to Bloomberg