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Jailing Immigrants Without Bond & ICE Plays Whack-a-Mole · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
• 0:08
  Speaker 2: The acting head of ICE, Todd Lyons, defended his agency's
• 0:13
  Speaker 2: training standards and denounced threats against officers at a hearing
• 0:17
  Speaker 2: before the House Homeland Security Committee today, let me.
• 0:20
  Speaker 3: Send a message to anyone who thinks they can intimidate us,
• 0:23
  Speaker 3: you will fail well.
• 0:24
  Speaker 2: The shootings of Renee Good and Alex Pretty have drawn
• 0:27
  Speaker 2: by partisan scrutiny and calls for transparency. The hearing largely
• 0:32
  Speaker 2: played out along partisan lines. There were some heated moments,
• 0:36
  Speaker 2: like this when New York Democrat Dan Goldman asked Lyons
• 0:40
  Speaker 2: about US citizens being asked for proof of citizenship?
• 0:44
  Speaker 3: Do you know what other regimes in the twentieth century
• 0:48
  Speaker 3: century required similar proof of citizenship?
• 0:52
  Speaker 1: Yes, sir? What so those various nefarious regimes that did that?
• 0:59
  Speaker 3: Is Nazi one?
• 1:00
  Speaker 1: Yes?
• 1:01
  Speaker 3: But I is the Soviet Union life I'm asking the questions.
• 1:05
  Speaker 3: Is the Soviet Union one?
• 1:06
  Speaker 1: Yes, sir? But I told you.
• 1:07
  Speaker 2: A topic that was not addressed at the hearings is
• 1:11
  Speaker 2: one that affects every non citizen detained by ICE, the
• 1:15
  Speaker 2: Trump Administration's mandatory detention policy. It's a reversal of every
• 1:21
  Speaker 2: other administration's policy for the last thirty years. The Trump
• 1:25
  Speaker 2: administration is detaining all non citizens without hearings indefinitely, even
• 1:31
  Speaker 2: if they've lived in this country for decades and have
• 1:34
  Speaker 2: no criminal records. And in a huge win for the administration,
• 1:38
  Speaker 2: the ultra conservative Fifth Circuit Court of Appeals just greenlit
• 1:43
  Speaker 2: that mandatory detention policy. My guest is Leon Fresco, a
• 1:47
  Speaker 2: partner at hollanden Knight and the former head of the
• 1:50
  Speaker 2: Office of Immigration Litigation in the Obama administration. Lee and
• 1:55
  Speaker 2: I want to start with what's been happening in the
• 1:57
  Speaker 2: lower federal courts the Trump administration. The immigration courts have
• 2:02
  Speaker 2: largely stopped conducting bond hearings, even though three federal judges
• 2:08
  Speaker 2: explicitly declare that non citizen detainees have a right to
• 2:13
  Speaker 2: argue for their release, so the right to a bond hearing.
• 2:17
  Speaker 2: But there was contrary guidance by the head immigration judge
• 2:22
  Speaker 2: who said the immigration judges weren't bound by the federal
• 2:26
  Speaker 2: judges orders.
• 2:28
  Speaker 1: What happens is that there is Supreme Court precedent from
• 2:32
  Speaker 1: a couple of years ago during the Biden administration that
• 2:36
  Speaker 1: clarify that the only court in America that can issue
• 2:40
  Speaker 1: injunctive relief of immigration, deportation or detention statue is the
• 2:46
  Speaker 1: Supreme Court. And so what that has meant is that
• 2:49
  Speaker 1: the lower courts, when they're trying to issue relief in
• 2:53
  Speaker 1: certain cases, the only thing they can issue is what's
• 2:56
  Speaker 1: called declaratory judgment relief. They can say, we declare that
• 3:02
  Speaker 1: the immigration authorities are acting in an unlawful manner, and
• 3:07
  Speaker 1: based on that declaration, we are ordering that there be
• 3:10
  Speaker 1: a release of a particular person who we are claiming
• 3:14
  Speaker 1: is wrongfully detained. And usually that's done in a habeas
• 3:18
  Speaker 1: corpus matter, which is what happened is someone says, my
• 3:21
  Speaker 1: body is wrongfully detained by the federal government, please release me. Now,
• 3:27
  Speaker 1: what has been happening is, and we'll talk more about
• 3:30
  Speaker 1: this when we get to the Fifth Circuit case, is
• 3:33
  Speaker 1: that ISA has taken the position that nobody can be
• 3:35
  Speaker 1: released from detention if they snuck across the border or
• 3:39
  Speaker 1: the United States. It doesn't matter if it was thirty
• 3:41
  Speaker 1: years ago, twenty years ago, or anything. If we catch you,
• 3:45
  Speaker 1: that means you're in detention until your deportation case is over.
• 3:50
  Speaker 1: And so from that perspective, people have been filing habeas
• 3:54
  Speaker 1: corpus petitions trying to say that that's an improper decision
• 4:00
  Speaker 1: and let me unt. And what has happened is that
• 4:05
  Speaker 1: when they win, they get declaratory relief, they don't get
• 4:09
  Speaker 1: injunctive relief. And so now the immigration courts under the
• 4:13
  Speaker 1: Department of Justice, so Pambombi, being the Attorney General and
• 4:18
  Speaker 1: then bringing those orders down to her designees in the
• 4:22
  Speaker 1: Department of Justice and the Immigration courts, has said a
• 4:27
  Speaker 1: declaratory judgment is not an injunction. It doesn't force us
• 4:32
  Speaker 1: to do anything. It just declares that we've acted illegally,
• 4:35
  Speaker 1: which is you know, quite a stretch. You know, usually
• 4:39
  Speaker 1: people defer to these declarations, but here the Department of
• 4:43
  Speaker 1: Justice is saying, we are not going to defer to
• 4:47
  Speaker 1: these declarations that we're acting illegally. We will wait till
• 4:52
  Speaker 1: the Supreme Court enjoins us to do anything. And so
• 4:55
  Speaker 1: now they're ignoring the court orders, which is setting up
• 4:59
  Speaker 1: these CROs where the district court judges are going to
• 5:03
  Speaker 1: decide whether to have to hold the Justice Department officials
• 5:07
  Speaker 1: and the ICE officials in contempt. And if they do,
• 5:11
  Speaker 1: what does that mean and would people get ordered to
• 5:14
  Speaker 1: be thrown in jail if they would, who would enforce
• 5:17
  Speaker 1: these orders? We use these words, but these words are
• 5:21
  Speaker 1: the definition of a constitutional crisis, which is when you
• 5:24
  Speaker 1: have a court ordering something, and you even have a
• 5:29
  Speaker 1: content proceeding and the administration will ignore that. Then that's
• 5:33
  Speaker 1: when you have a constitutional crisis, because then no longer
• 5:37
  Speaker 1: does the administration say that it will submit itself to
• 5:41
  Speaker 1: the rule of the courts in terms of their decisions.
• 5:44
  Speaker 1: And that's when you have potentially problematic situations.
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  Speaker 2: But if the Supreme Court ruled that, then is the
• 5:52
  Speaker 2: Department of Justice in the right here?
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  Speaker 1: Well, the Supreme Court has it ruled about these bond issues.
• 5:59
  Speaker 1: But if they've ruled that, which they have, that they
• 6:02
  Speaker 1: are the only ones who can issue an injunction, then
• 6:06
  Speaker 1: the injunction would be for policy wide challenges. For instance,
• 6:12
  Speaker 1: you challenge a certain memo or you challenge a certain
• 6:16
  Speaker 1: program that got put into place in the immigration world.
• 6:20
  Speaker 1: But in these habeas cases, it's a little bit more
• 6:23
  Speaker 1: complicated because the whole point of a habeas case is
• 6:27
  Speaker 1: you're not getting an injunction. In a habeas you're getting
• 6:29
  Speaker 1: an order. You're getting a rid of habeas corpus, which
• 6:32
  Speaker 1: is done in a declaratory nature, and so to say
• 6:37
  Speaker 1: we're not subject to habeas petitions anymore. We don't have
• 6:41
  Speaker 1: to respect those decisions unless somebody gets all the way
• 6:45
  Speaker 1: to the Supreme Court and the Supreme Court says release
• 6:48
  Speaker 1: them on a habeas that's unprecedented territory.
• 6:53
  Speaker 2: Both the Fifth and the Seventh Circuit had arguments on
• 6:56
  Speaker 2: the same day. The Fifth Circuit made its decision within
• 7:00
  Speaker 2: days of the arguments. I mean, how big a victory
• 7:04
  Speaker 2: is that Fifth Circuit decision for the administration.
• 7:08
  Speaker 1: The reason it's a big victory is because most of
• 7:10
  Speaker 1: the detention facilities in the United States are in the
• 7:14
  Speaker 1: Fifth Circuit Texas, Louisiana, and Mississippi. It's a big part
• 7:19
  Speaker 1: of the detention infrastructure of the United States is actually
• 7:22
  Speaker 1: in those locations. And so what the Fifth Circuit held
• 7:27
  Speaker 1: is that if a person crossed the border illegally and
• 7:32
  Speaker 1: entered the United States illegally, if and when the United
• 7:36
  Speaker 1: States government finally apprehends them, whether it's two days later,
• 7:41
  Speaker 1: ten days later, one year later, twenty years later, forty
• 7:44
  Speaker 1: years later, none of that matters. What matters is that
• 7:48
  Speaker 1: they were apprehended when they had crossed the border. Illegally,
• 7:53
  Speaker 1: and so under the version of the statute that the
• 7:56
  Speaker 1: Trump administration and the Fifth Circuit feel is the correct
• 8:00
  Speaker 1: interpretation of the statute, they say that no matter when
• 8:03
  Speaker 1: you're apprehended, if you've crossed illegally, what your intent is.
• 8:09
  Speaker 1: Your intent is you're trying still every day of your life,
• 8:13
  Speaker 1: to be admitted into the United States legally, that this
• 8:17
  Speaker 1: is your goal. Because the statue uses these words seeking admission,
• 8:21
  Speaker 1: and what it says is if you're seeking admission into
• 8:24
  Speaker 1: the United States, then if you get apprehended, you will
• 8:28
  Speaker 1: be detained indefinitely without bond until we decide whether you
• 8:32
  Speaker 1: win or lose your deportation case. And so that's the definition.
• 8:37
  Speaker 1: Previously for the last thirty years, all the administrations prior
• 8:42
  Speaker 1: to this said that at a certain point after you
• 8:46
  Speaker 1: cross the border, you're no longer seeking admission, you're just
• 8:49
  Speaker 1: here in the country, and that seeking admission is only
• 8:52
  Speaker 1: for people apprehended at or near the border right when
• 8:56
  Speaker 1: they're trying to cross. It's not for people who've been
• 8:58
  Speaker 1: here an extended period of time. Those people are entitled
• 9:02
  Speaker 1: to bond. And so this is a new interpretation that's
• 9:06
  Speaker 1: different than what has occurred in the last thirty years.
• 9:10
  Speaker 1: And so what the Fifth Circuit has said is absolutely
• 9:13
  Speaker 1: if someone is in detention in the Fifth Circuit and
• 9:16
  Speaker 1: they cross the border illegally, it does not matter how
• 9:19
  Speaker 1: long they've been in the country. They can be detained
• 9:22
  Speaker 1: during the entire removal hearing without bond until they can
• 9:25
  Speaker 1: finally be deported.
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  Speaker 2: And if the Seventh Circuit comes out with a contrary decision,
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  Speaker 2: it won't make that much difference because not that many
• 9:35
  Speaker 2: people are held in detention in the territory of the
• 9:39
  Speaker 2: Seventh Circuit.
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  Speaker 1: Correct. What's very interesting about this is usually the government
• 9:44
  Speaker 1: is motivated to go to the Supreme Court whenever it's
• 9:47
  Speaker 1: got bad law. But it would be very interesting if
• 9:51
  Speaker 1: what will have to happen is that the Fifth Circuit
• 9:55
  Speaker 1: petitioners that the foreign nationals will have to go to
• 9:58
  Speaker 1: the Supreme Court and that the Supreme Court takes the case,
• 10:02
  Speaker 1: because usually the Supreme Court only takes these cases for
• 10:05
  Speaker 1: the most part, because the Department of Justice is asking
• 10:08
  Speaker 1: them to take the case. Almost always, when the Department
• 10:11
  Speaker 1: of Justice wants the Supreme Court to take a case,
• 10:14
  Speaker 1: they take it. But the Department of Justice may say,
• 10:16
  Speaker 1: you know what, if we lose in the Seventh Circuit
• 10:18
  Speaker 1: or the Ninth Circuit, No big deal. We'll just put
• 10:21
  Speaker 1: the visa overstate people in detention in those facilities and
• 10:26
  Speaker 1: they can get a bond and it's not a big
• 10:27
  Speaker 1: deal and whatever. But for the people we want to
• 10:30
  Speaker 1: keep in detention as the border crossers, we will put
• 10:35
  Speaker 1: them in detention in the Fifth Circuit, and that way
• 10:38
  Speaker 1: they won't be able to have a habeas petition. And
• 10:41
  Speaker 1: if the Supreme Court never takes this case, then that
• 10:43
  Speaker 1: can't be fixed. And so from their perspective, there's a
• 10:47
  Speaker 1: possibility they may not ask perserciary review in the Supreme Court,
• 10:52
  Speaker 1: and that the only way it would get there would
• 10:55
  Speaker 1: be if the foreign nationals involved actually try to appeal
• 11:00
  Speaker 1: a fitth Circuit decision to the Supreme Court.
• 11:03
  Speaker 2: When immigrants are released as their case is being processed,
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  Speaker 2: do they have better odds of fighting their removal from
• 11:12
  Speaker 2: the country.
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  Speaker 1: Yeah, here's what happens. There's two sort of big dramatic
• 11:17
  Speaker 1: complications when immigration detension is involved. One to the extent
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  Speaker 1: that you have family and friends and everybody else, you're
• 11:25
  Speaker 1: separated from them, and you're separated from your source of income,
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  Speaker 1: which makes it harder for you to even hire a
• 11:31
  Speaker 1: lawyer in the first place, so you may not have
• 11:33
  Speaker 1: a lawyer because you can't afford a lawyer. But second,
• 11:36
  Speaker 1: and even more importantly than that, so you don't have
• 11:38
  Speaker 1: your family, you don't have any money, you can't hire
• 11:40
  Speaker 1: a lawyer. That's bad enough theoretically, but then it gets
• 11:43
  Speaker 1: even worse, which is, even if you have a lawyer,
• 11:46
  Speaker 1: the lawyer now has to communicate with you, basically through
• 11:50
  Speaker 1: ICE whatever ICE decides to allow you to be able
• 11:54
  Speaker 1: to communicate with your lawyer. So you know, most of
• 11:57
  Speaker 1: these detention facilities are in the middle of nowhere, they're
• 12:00
  Speaker 1: not near any lawyers, and so very few lawyers are
• 12:03
  Speaker 1: driving out or flying hours and hours. Usually what you're
• 12:07
  Speaker 1: having to do is set up conferences visa the you're
• 12:11
  Speaker 1: passing documents to the client through ICE. ICE is getting
• 12:15
  Speaker 1: this and they're getting the documents back. So any sort
• 12:17
  Speaker 1: of attorney client privilege is not that it's not respected,
• 12:21
  Speaker 1: it just doesn't exist because you're passing documents through ICE.
• 12:25
  Speaker 1: So the only way to have attorney client privilege would
• 12:28
  Speaker 1: be for lawyers to drive many, many hours or fly
• 12:32
  Speaker 1: and drive to these remote facilities. So all of that
• 12:35
  Speaker 1: makes it very very hard if you're trying to prepare,
• 12:38
  Speaker 1: let's say, an asylum application, which requires if you were
• 12:41
  Speaker 1: if you were doing a gold standard asylum case, you'd
• 12:45
  Speaker 1: be with your client maybe eight to sixteen hours getting
• 12:49
  Speaker 1: their whole story, documenting it, saying where can I get
• 12:53
  Speaker 1: this proof from? Where can I get this document from?
• 12:57
  Speaker 1: Trying to really set forward a case, and you just
• 13:01
  Speaker 1: don't have the ability to do any of that if
• 13:03
  Speaker 1: your client is a detention. So it basically is like saying, fine,
• 13:08
  Speaker 1: we're gonna let you play basketball, but you can't use
• 13:10
  Speaker 1: your left arm or your right leg. Good luck to youse,
• 13:13
  Speaker 1: see if you can win this match against Shaquille O'Neal
• 13:17
  Speaker 1: or something like that. That's basically what happens if you're
• 13:21
  Speaker 1: an immigration detention.
• 13:22
  Speaker 2: Coming up next, I'll continue this conversation with Leon Fresco.
• 13:26
  Speaker 2: Lawyers are struggling to find their detained clients in a
• 13:30
  Speaker 2: game of whackam o by ice. This is Bloomberg.
• 13:37
  Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
• 13:43
  Speaker 2: The federal courts have been flooded with habeas petitions from
• 13:47
  Speaker 2: immigrants claiming their detention is illegal. According to pro Publica.
• 13:52
  Speaker 2: The Trump administration's push for mass deportations has resulted in
• 13:57
  Speaker 2: more than eighteen thousand habeas potis filed in federal court
• 14:02
  Speaker 2: in the first thirteen months of Trump's second term. That's
• 14:06
  Speaker 2: more than we're filed under the last three administrations combined.
• 14:11
  Speaker 2: I've been talking to Immigration attorney Leon Fresco of Honda
• 14:14
  Speaker 2: Night So, Leon, with this Fifth Circuit decision, will that
• 14:18
  Speaker 2: flood subside tug?
• 14:20
  Speaker 1: You're in the Fifth Circuit absolutely, because that becomes binding President,
• 14:24
  Speaker 1: So none of those habeas petitions will work in the
• 14:27
  Speaker 1: district courts in Texas, Mississippi, and Louisiana. If you are
• 14:31
  Speaker 1: in other district courts around the country, the problem you
• 14:34
  Speaker 1: have is that that Fifth Circuit decision could be cited
• 14:37
  Speaker 1: as persuasive, and maybe the particular district judge who's listening
• 14:41
  Speaker 1: to the case will find it persuasive, and then you'll
• 14:44
  Speaker 1: need to go to the Circuit court and we'll have
• 14:46
  Speaker 1: to see what happens. But the other problem that could
• 14:49
  Speaker 1: happen is the government can try to move you and
• 14:53
  Speaker 1: get your habeas dismissed, and then the court would have
• 14:55
  Speaker 1: to decide whether it wants to keep the habeasts or not.
• 14:58
  Speaker 1: So there's just too much uncertainty and procedural machinations that
• 15:03
  Speaker 1: can occur in all of these cases, where at the
• 15:06
  Speaker 1: end of the day, many many of these foreign nationals involved,
• 15:09
  Speaker 1: unless they get some very committed pro bono project, are
• 15:12
  Speaker 1: not going to have the resources to make all of
• 15:15
  Speaker 1: these challenges.
• 15:16
  Speaker 2: It almost sounds like game over.
• 15:18
  Speaker 1: I mean, the only way that this detention issue will
• 15:22
  Speaker 1: change is if the Supreme Court gets involved and says
• 15:26
  Speaker 1: that the Fifth Circuit got it wrong. But if the
• 15:28
  Speaker 1: Fifth Circuit decision stands, then what you will see as
• 15:31
  Speaker 1: the entire detention infrastructure of America moved to the Fifth Circuit,
• 15:36
  Speaker 1: and then that will be how it operates.
• 15:38
  Speaker 2: So then is it as important that the Justice Department
• 15:42
  Speaker 2: is overhauling the Board of Immigration Appeals and cutting off
• 15:47
  Speaker 2: an avenue for challenging immigration court orders.
• 15:50
  Speaker 1: Well, that absolutely is critical for all of these cases,
• 15:53
  Speaker 1: because a removal in the United States cannot occur currently
• 15:59
  Speaker 1: unless there's two levels of review, one before one immigration
• 16:02
  Speaker 1: judge and two before the Board of Immigration Appeals. Then
• 16:06
  Speaker 1: there's theoretically a third one where you can go to
• 16:09
  Speaker 1: the Federal Court of Appeals and they can decide whether
• 16:13
  Speaker 1: they want to review your case and issue US stay.
• 16:16
  Speaker 1: But if they don't issue US stay while the case
• 16:18
  Speaker 1: is under review, you can actually be deported while the
• 16:21
  Speaker 1: case is under review, and you'd have to win and
• 16:24
  Speaker 1: hope that you can get re reparolled back into the
• 16:29
  Speaker 1: United States if you win your case, but in the
• 16:32
  Speaker 1: meantime you've been deported. So it's not so easy there.
• 16:37
  Speaker 1: The only guarantee of non non deportation is to be
• 16:40
  Speaker 1: either before the immigration judge or before the Board of
• 16:43
  Speaker 1: Immigration Appeals. Now here's what the Trump administration is saying,
• 16:49
  Speaker 1: and to this extent they're mostly correct. Is they've said,
• 16:54
  Speaker 1: if you really look at what the Board of Immigration
• 16:56
  Speaker 1: Appeals does, in ninety percent of cases, they just issue
• 17:02
  Speaker 1: a rubber stamp decision that says, you know, what, the
• 17:04
  Speaker 1: immigration judge was correct, So we don't really have anything
• 17:08
  Speaker 1: more substantive to add to this. And then people either
• 17:12
  Speaker 1: get deported or they review it to the federal Court
• 17:16
  Speaker 1: of Appeals that applies to them. And so what they're
• 17:18
  Speaker 1: saying is if this process takes one year or two
• 17:22
  Speaker 1: years or three years, as it does for many cases,
• 17:25
  Speaker 1: in order to ultimately get a decision, that's not very
• 17:27
  Speaker 1: substantively helpful. Why not just get rid of this altogether,
• 17:32
  Speaker 1: and just if you lose in front of the Immigration court,
• 17:35
  Speaker 1: go directly to the Federal Court of Appeals and not
• 17:38
  Speaker 1: even have this if it's not adding anything to it. Now,
• 17:41
  Speaker 1: on the other side, the advocates would say, yeah, well
• 17:45
  Speaker 1: that's that's because you're not taking this process seriously. This
• 17:49
  Speaker 1: is not meaningful appellate review. That doesn't mean get rid
• 17:52
  Speaker 1: of it, that means make it meaningful appellet review. And
• 17:56
  Speaker 1: so you really have two completely different view points here.
• 18:00
  Speaker 1: But it has not been to be fair meaningful appellate
• 18:05
  Speaker 1: review under either the Trump administration or the Biden administration
• 18:10
  Speaker 1: or the other Trump administration, or the Obama administration or
• 18:13
  Speaker 1: the Bush administration. It was never meaningful appellate review. And
• 18:18
  Speaker 1: so you start really grappling with this issue of if
• 18:22
  Speaker 1: you don't really have it, and all it's doing is
• 18:25
  Speaker 1: delaying people's deportation by a year or two, then what
• 18:29
  Speaker 1: is really going on here? And so that's going to
• 18:32
  Speaker 1: be a debate because so now what's interesting is that
• 18:35
  Speaker 1: the federal statutes never say that there needs to be
• 18:39
  Speaker 1: something called the Board of Immigration Appeals. They don't say
• 18:42
  Speaker 1: anything like that. They just say the Attorney General has
• 18:45
  Speaker 1: to establish something, and whatever that is, that's the system.
• 18:49
  Speaker 1: So the system that the Attorney General established had an
• 18:52
  Speaker 1: immigration court and a Board of Immigration Appeals. So now
• 18:55
  Speaker 1: by regulation they're trying to say, you don't need this
• 18:59
  Speaker 1: Board of Immigration Appeals anymore unless the entire board decides
• 19:04
  Speaker 1: on bank. We're going to listen to a case only
• 19:06
  Speaker 1: then in those situations. So they're saying, in that situation,
• 19:10
  Speaker 1: we'll have that, but otherwise we won't have it, and
• 19:13
  Speaker 1: so they'll be a lawsuit. But I don't know how
• 19:15
  Speaker 1: likely it is to be successful. Now they may not
• 19:18
  Speaker 1: have followed the correct formalities because they're not doing notice
• 19:21
  Speaker 1: and comment, and I don't know why. If you're doing it,
• 19:23
  Speaker 1: I think if you're doing something this substantive, I think
• 19:26
  Speaker 1: you'd want to dot all the i's and cross all
• 19:29
  Speaker 1: the t's, even if it takes six months longer, because
• 19:32
  Speaker 1: it's a very large substantive change here. But nevertheless, it
• 19:38
  Speaker 1: might get dinged for the lack of formalities. But if
• 19:40
  Speaker 1: it doesn't get dinged on the lack of formalities, I'm
• 19:43
  Speaker 1: not so optimistic for the challengers that they would actually
• 19:47
  Speaker 1: win here because there's nothing in the statute that actually
• 19:50
  Speaker 1: requires this Board of Immigration Appeals to exist.
• 19:53
  Speaker 2: So the chief judge of the Minnesota Courts US District,
• 19:57
  Speaker 2: Judge Patrick Schiltz, found that ICE had violated court orders
• 20:02
  Speaker 2: almost one hundred times in seventy four cases brought by
• 20:05
  Speaker 2: immigrants so far this year, and many other federal judges
• 20:09
  Speaker 2: have found that ICE is not complying with their orders,
• 20:13
  Speaker 2: or they're being threatened by judges with contempt, and so
• 20:17
  Speaker 2: then they comply with court orders, but they're slow walking.
• 20:21
  Speaker 2: I mean, many federal judges are finding that ICE is
• 20:25
  Speaker 2: not complying with court orders, or they're being threatened by
• 20:30
  Speaker 2: judges with contempt, and so then they comply with court orders,
• 20:34
  Speaker 2: but they're slow walking. I mean, what's going on in
• 20:37
  Speaker 2: the courts?
• 20:39
  Speaker 1: I think there are many different issues, and so it's
• 20:42
  Speaker 1: not one clear issue. It's many different issues. Number One,
• 20:47
  Speaker 1: there is the issue of the amount of litigation that's
• 20:52
  Speaker 1: happening now because of this new policy that says that
• 20:55
  Speaker 1: if you've crossed the border illegally, there is no bond
• 21:00
  Speaker 1: hearing for you. So that's a change from the past.
• 21:03
  Speaker 1: The system didn't align itself, So it's this expression of
• 21:08
  Speaker 1: building the airplane while you're trying to fly it. There
• 21:11
  Speaker 1: was a system in place where when you got detained
• 21:14
  Speaker 1: by ICE, you filed for a bond hearing, and that
• 21:18
  Speaker 1: bond hearing was done in an immigration court by an
• 21:21
  Speaker 1: immigration judge, and the government was represented by an ICE attorney,
• 21:26
  Speaker 1: and the foreign national either represented themselves or had an attorney. Now,
• 21:32
  Speaker 1: if your client is detained and they're not allowed to
• 21:36
  Speaker 1: have bond because of this new policy, then what people
• 21:41
  Speaker 1: are doing is they're filing habeas petitions. And the habeas
• 21:44
  Speaker 1: petition doesn't have ICE as the attorney, it has a
• 21:48
  Speaker 1: USDJ attorney, and those attorneys are understaffed, and in fact,
• 21:53
  Speaker 1: the USDOJ attorneys many of them are resigning, and so
• 21:57
  Speaker 1: all of these offices are understaffed, and now they're having
• 22:01
  Speaker 1: this surge of cases. So they have this surge of
• 22:04
  Speaker 1: cases and they're having to deal with not the immigration courts,
• 22:10
  Speaker 1: but the federal courts, and ICE is having to respond
• 22:13
  Speaker 1: to all of these various court orders at the same time,
• 22:18
  Speaker 1: it's trying to have a record number of people in detention.
• 22:22
  Speaker 1: There's currently something like seventy three thousand foreign nationals in detention.
• 22:27
  Speaker 1: That number normally is something like forty thousand, thirty five thousand,
• 22:32
  Speaker 1: but now we're up to about seventy three thousand per day.
• 22:36
  Speaker 1: And so you have the government lawyers, we have something
• 22:39
  Speaker 1: like eighty or ninety of these cases that they're trying
• 22:42
  Speaker 1: to handle, all at the exact same time, and the
• 22:46
  Speaker 1: ICE agents who are dealing with the fact that these
• 22:49
  Speaker 1: foreign nationals may have been in that location when the
• 22:53
  Speaker 1: habeas was filed, but they might have gotten moved because
• 22:57
  Speaker 1: they needed to move the person to a different facility,
• 23:00
  Speaker 1: either because of real reasons or procedural imaginations. I mean,
• 23:05
  Speaker 1: there could have been beaesels on a facility and they
• 23:08
  Speaker 1: needed to move them, or there could have been a
• 23:11
  Speaker 1: glut of people that were in one facility, an overpopulation,
• 23:15
  Speaker 1: so you need it to move. And so the point
• 23:18
  Speaker 1: is a lot of things conspire together when you don't
• 23:21
  Speaker 1: build out this infrastructure proportionally, all at the same time,
• 23:26
  Speaker 1: such that there's a lot of ignoring of these orders
• 23:30
  Speaker 1: by necessity and also by choice. I'm not going to
• 23:34
  Speaker 1: discount that there's by choice as well, but it's not
• 23:37
  Speaker 1: all by choice. Some of it is by necessity in
• 23:40
  Speaker 1: terms of the way they're doing it, and so it's tough,
• 23:44
  Speaker 1: and it's tough for the courts to unwind all of that,
• 23:47
  Speaker 1: and the judges are getting frustrated, and especially if they
• 23:51
  Speaker 1: feel like their orders are being completely ignored. Unless the
• 23:54
  Speaker 1: Supreme Court steps in very quickly and does something, it's
• 23:58
  Speaker 1: going to end one of three ways. Either it will
• 24:02
  Speaker 1: end with all of this being enjoined and restoring back
• 24:05
  Speaker 1: to the original system where the bond situation exists again,
• 24:09
  Speaker 1: and it goes back to the immigration court and everybody
• 24:12
  Speaker 1: remembers the old system. That's one way. It could end
• 24:15
  Speaker 1: with nobody getting bond of any kind if they've crossed illegally,
• 24:20
  Speaker 1: and then that's just the law of the land. And
• 24:23
  Speaker 1: then the problem subsides because there won't be content of
• 24:26
  Speaker 1: court because the federal Court won't be involved in this anymore.
• 24:28
  Speaker 1: That's the second solution, or the third solution will be
• 24:33
  Speaker 1: the Supreme Court doesn't do anything, and we just end
• 24:37
  Speaker 1: up with a constitutional crisis, and that would be the
• 24:40
  Speaker 1: worst of all worlds. And so hopefully the Supreme Court
• 24:44
  Speaker 1: will step in and bring some order into this process
• 24:47
  Speaker 1: as soon as possible so that we don't end up
• 24:49
  Speaker 1: with this constitutional crisis.
• 24:51
  Speaker 2: And attorneys across the country are struggling to find their
• 24:55
  Speaker 2: detained clients, who are often being moved to out of
• 25:00
  Speaker 2: state facilities and bounced around by ice. An ACLU lawyer
• 25:04
  Speaker 2: called it a game of whack a mole from the beginning.
• 25:07
  Speaker 2: You can't find your clients. If you find them, you
• 25:10
  Speaker 2: can't access them because there are no phones or visitation rooms.
• 25:15
  Speaker 2: And if you do find them, it takes weeks to
• 25:17
  Speaker 2: contact them, and sometimes they're just moved and deported.
• 25:23
  Speaker 1: Absolutely, if you are a representative of a person, a
• 25:26
  Speaker 1: foreign national who's in immigration detention, it's the most challenging
• 25:31
  Speaker 1: time it's ever been to do that. And as I said,
• 25:34
  Speaker 1: it's really for the foreign national to say that they
• 25:38
  Speaker 1: have a process that is meaningful in the sense that
• 25:43
  Speaker 1: when you're a criminal. Let's say, when you're a criminal
• 25:46
  Speaker 1: and you're in detention, you're usually in detention within some
• 25:49
  Speaker 1: reasonable space from your attorney, and a criminal defense can
• 25:54
  Speaker 1: be planned and a criminal defense can be implemented in
• 25:57
  Speaker 1: a court of law. Here is, if you lived in
• 26:02
  Speaker 1: I don't know, Houston, or you lived in Atlanta, or
• 26:05
  Speaker 1: you lived in New York, you could be detained in
• 26:08
  Speaker 1: Kansas or in Louisiana or something and then whatever lawyer
• 26:13
  Speaker 1: you would have procured wouldn't have done you any good
• 26:16
  Speaker 1: because that lawyer is not going to travel to Louisiana
• 26:19
  Speaker 1: or Mississippi or somewhere else in order to be able
• 26:22
  Speaker 1: to reach you. And then even if they did, you
• 26:24
  Speaker 1: might be moved the next day. And so the question
• 26:28
  Speaker 1: of how you actually conduct the defense when you can't
• 26:31
  Speaker 1: speak to a lawyer is very, very complicated. And this
• 26:34
  Speaker 1: is yet another issue that is going to have to
• 26:38
  Speaker 1: come to some resolution because people are going to start
• 26:41
  Speaker 1: saying that they've had due process violations within these contexts,
• 26:46
  Speaker 1: and the courts are going to have to decide what
• 26:48
  Speaker 1: is the process that you're due in these situations.
• 26:51
  Speaker 2: Even when ICE does release detainees, judges are finding that
• 26:57
  Speaker 2: they're releasing them in other states without their papers or
• 27:00
  Speaker 2: phones and with just the clothes on their back. So
• 27:03
  Speaker 2: some judges have been issuing very detailed orders. For example,
• 27:08
  Speaker 2: one Minnesota judge said ICE had to release a detainee
• 27:13
  Speaker 2: one in Minnesota, two with all personal documents and belongings
• 27:17
  Speaker 2: such as driver's license, cell phone, three without conditions such
• 27:21
  Speaker 2: as ankle monitors or tracking devices, and four with all
• 27:25
  Speaker 2: clothing and outer wear he was wearing at the time
• 27:28
  Speaker 2: of detention or other proper winter attire.
• 27:32
  Speaker 1: It is very complicated, no doubt. And this is something
• 27:35
  Speaker 1: I remember from the very first case that I won
• 27:37
  Speaker 1: with a client in detention, a long long time ago.
• 27:40
  Speaker 1: I won't date myself. I remember speaking to a senior
• 27:44
  Speaker 1: lawyer and I said, what do I do now? And
• 27:45
  Speaker 1: they said, no, when you win a case and your
• 27:48
  Speaker 1: client is in detention, what ICE does is they just
• 27:51
  Speaker 1: opened the door of the facility, and so you better
• 27:53
  Speaker 1: go get them. Because my client was in the middle
• 27:55
  Speaker 1: of the Everglades, and so it was just a matter
• 27:58
  Speaker 1: of that they either are going to walk from the
• 28:00
  Speaker 1: middle of the Everglades into civilization or somebody has to
• 28:03
  Speaker 1: go get them. This is not new. This has always
• 28:06
  Speaker 1: been that way. That all ICE does is open the
• 28:09
  Speaker 1: door of the detention facility and say, okay, walk out
• 28:13
  Speaker 1: of here. And so as more and more people are detained,
• 28:17
  Speaker 1: and they're detained at more remote locations, people are saying, well,
• 28:21
  Speaker 1: I can't just drive to go get this person. That's
• 28:25
  Speaker 1: not a thing anymore. Because I'm an attorney in Minneapolis
• 28:29
  Speaker 1: and my client is in Louisiana. So what do I
• 28:33
  Speaker 1: do now? And so this is why you're seeing some
• 28:35
  Speaker 1: of these orders.
• 28:36
  Speaker 2: Now you've got a trip to the Everglades out of
• 28:39
  Speaker 2: that case, Leon, thanks so much as always. That's Leon
• 28:43
  Speaker 2: Fresco of Holland and Night coming up next, And appeals
• 28:46
  Speaker 2: court is weighing undoing a block on federal grant freezes.
• 28:51
  Speaker 2: I'm June Grosso and you're listening to Bloomberg. The DC
• 28:57
  Speaker 2: Federal Appeals Court seems skeptical that a court order blocking
• 29:01
  Speaker 2: the Trump administration from freezing trillions of dollars in grant
• 29:06
  Speaker 2: funds was still needed. That was after a Justice Department
• 29:10
  Speaker 2: lawyers said the government would have quote no conceivable reason
• 29:14
  Speaker 2: to do it again. The three judge panel heard arguments
• 29:18
  Speaker 2: in a challenge by nonprofit organizations to the administration's pause
• 29:23
  Speaker 2: last year on financial assistance programs, the move that prompted
• 29:28
  Speaker 2: widespread confusion across agencies. Joining me is Bloomberg Law reporter
• 29:33
  Speaker 2: Suzanne Monnac. Suzanne tell us about the underlying dispute.
• 29:38
  Speaker 4: Explain what was it handy, what was.
• 29:41
  Speaker 2: It issue here? I mean the original court order.
• 29:46
  Speaker 5: So the DC Circuit, the Federal Appeals Court here in Washington,
• 29:49
  Speaker 5: is considering what to do with a lower court ruling
• 29:51
  Speaker 5: from really about a year ago that had barred the
• 29:54
  Speaker 5: Trump administration from freezing federal assistant funds nationwide. And these
• 29:58
  Speaker 5: Federal assistants funds were grants that would go to nonprofits
• 30:01
  Speaker 5: or small businesses. And shortly after we saw President Donald
• 30:04
  Speaker 5: Trump returned to office, they issued a memo that ended
• 30:07
  Speaker 5: up sparking quite a bit of chaos and confusion to
• 30:09
  Speaker 5: federal agencies that these funds vendoral assistance programs needed to
• 30:13
  Speaker 5: be reviewed for alignment with other executive orders. It resulted
• 30:17
  Speaker 5: in a pause to trillions of dollars worth of funding,
• 30:20
  Speaker 5: really at the expense of quite a few companies or
• 30:23
  Speaker 5: nonprofits that rely on those funds.
• 30:26
  Speaker 2: So a lower court judge had issued a temporary injunction
• 30:29
  Speaker 2: to stop the government from freezing the funds.
• 30:33
  Speaker 4: That's correct.
• 30:34
  Speaker 5: So we saw a lower court judge, which was Judge
• 30:36
  Speaker 5: Lauren Alikhon and the DC District Court had specifically prohibited
• 30:40
  Speaker 5: the government from implementing any quote unilateral, non individualized directives
• 30:45
  Speaker 5: end quote with.
• 30:46
  Speaker 4: The respective federal funds.
• 30:47
  Speaker 5: So that really applied to a broad based freeze on
• 30:51
  Speaker 5: federal funding as opposed to individual friezes of certain funds.
• 30:55
  Speaker 5: And so that was really what was that issue or
• 30:58
  Speaker 5: largely part of what was that issue during this appeals
• 31:01
  Speaker 5: court hearing that we had last week, and what the
• 31:03
  Speaker 5: d C Circuit is now considering is whether such a
• 31:05
  Speaker 5: broad order has a place today.
• 31:08
  Speaker 2: There were hearings around the country about these friezes of
• 31:11
  Speaker 2: federal funds. How is this freeze different from some of
• 31:15
  Speaker 2: the other ones we heard about.
• 31:17
  Speaker 5: Of course, we saw a lot of litigation that was
• 31:19
  Speaker 5: prompted when this funding freeze happened, largely just because there
• 31:22
  Speaker 5: was so much confusion. I mean, the judge herself described
• 31:26
  Speaker 5: chaos in this funding freeze. The Trump administration did seek
• 31:30
  Speaker 5: to walk it back shortly after they issued the initial
• 31:33
  Speaker 5: memo that caused so much confusion by issuing a Q
• 31:36
  Speaker 5: and A that stopped to clarify that this was not
• 31:38
  Speaker 5: intended to be a full funding freeze, but rather something
• 31:42
  Speaker 5: for individual agencies to only freeze funds that were potentially
• 31:47
  Speaker 5: in conflict with executive orders. So there was just confusion
• 31:50
  Speaker 5: really about the scope initially. But yes, of course we
• 31:53
  Speaker 5: saw a lot of litigation across spurts. This is specifically
• 31:55
  Speaker 5: the DC case, and that one was about the funding
• 31:58
  Speaker 5: freeze overall.
• 31:59
  Speaker 4: As opposed to grant freeze.
• 32:01
  Speaker 2: What was the main issue that the DC appellate judges
• 32:05
  Speaker 2: were concerned with.
• 32:07
  Speaker 5: The Trump administration is now on appeal seeking to have.
• 32:10
  Speaker 4: This lower court order lifted.
• 32:11
  Speaker 5: They're arguing that essentially it's not needed anymore, that it's relevant,
• 32:15
  Speaker 5: and that it's causing problems at their agency. Specifically, they've said,
• 32:18
  Speaker 5: you know, this funding freeze that we did was really
• 32:20
  Speaker 5: specific to the fact that the new administration had just
• 32:23
  Speaker 5: come into office. We wanted to do a full review
• 32:26
  Speaker 5: of the money that was going out. This wouldn't apply again,
• 32:28
  Speaker 5: like this just would never happen again. And they claimed
• 32:31
  Speaker 5: that we saw the government lawyer or tell the court
• 32:33
  Speaker 5: that it's led to some confusion about what the White
• 32:35
  Speaker 5: House's Budget Office is allowed to do.
• 32:37
  Speaker 4: Are they allowed to freeze what funds? What other funds?
• 32:40
  Speaker 5: And so they said to the court, even if you
• 32:41
  Speaker 5: don't choose to fully, you know, order this lower court
• 32:44
  Speaker 5: ruling to be lifted, that perhaps you would order it
• 32:46
  Speaker 5: to be clarified so that we could have clarity that
• 32:49
  Speaker 5: it really only applies to a full one hundred percent
• 32:52
  Speaker 5: funding freeze as opposed to more tailored funding pauses. That
• 32:55
  Speaker 5: way they may be interested in doing, and the court
• 32:58
  Speaker 5: seemed somewhat i would say, receptive to that argument that
• 33:01
  Speaker 5: perhaps this preliminary injunction from a year ago just really
• 33:05
  Speaker 5: doesn't apply anymore. It was, you know, in its time,
• 33:08
  Speaker 5: and we saw the appeals court judges even say, you know,
• 33:10
  Speaker 5: we understand why the lower court did this given the
• 33:13
  Speaker 5: information it had before it, but now, you know, given
• 33:16
  Speaker 5: what we're hearing from the government, it's been a year,
• 33:18
  Speaker 5: We're not sure that it makes sense that this would
• 33:20
  Speaker 5: still be in place. It was a temporary order after all.
• 33:23
  Speaker 2: So if the government says we're not going to do
• 33:26
  Speaker 2: a funding freeze like that anymore, then why do they
• 33:29
  Speaker 2: need the lower court order to be specific about what
• 33:33
  Speaker 2: they can and cannot freeze.
• 33:35
  Speaker 5: That's a great question, and that was something that we
• 33:37
  Speaker 5: really saw the attorney for the nonprofits who's with Democracy
• 33:41
  Speaker 5: Forward Foundation press at the hearing. Well, if she's you know,
• 33:45
  Speaker 5: she said, if the government is saying that we don't
• 33:47
  Speaker 5: plan to freeze anything fully, then why did they care
• 33:49
  Speaker 5: about this injunction being lifted. I think where I kind
• 33:52
  Speaker 5: of saw the government lawyer try to make that explanation
• 33:55
  Speaker 5: was that they were arguing it was causing confusion at
• 33:58
  Speaker 5: the Office Management and Budget, and so just the way
• 34:01
  Speaker 5: that the lower court order was phrased, it was seeming
• 34:03
  Speaker 5: to be interpreted as a full funding freeze, but I
• 34:06
  Speaker 5: guess there was some you know, confusion about whether or
• 34:08
  Speaker 5: not it would always be interpreted that way, and so
• 34:10
  Speaker 5: they were asking for at a minimum, more clarity from
• 34:13
  Speaker 5: the appeals court. But that's correct, And that was really
• 34:15
  Speaker 5: also one thing that Judge Bradley Garcia, who's one of
• 34:17
  Speaker 5: the judges on the panel, you know, specifically raised that
• 34:19
  Speaker 5: if we were to see the Trump administration try to
• 34:22
  Speaker 5: freeze a specific you know, grant fund something that say
• 34:25
  Speaker 5: didn't align with executive orders on DEI initiatives or environmental issues,
• 34:29
  Speaker 5: that kind of thing, that it wouldn't even be covered
• 34:32
  Speaker 5: under the current injunction because the current injunction only applies
• 34:35
  Speaker 5: to a full federal freeze, as he interpreted it, and
• 34:38
  Speaker 5: wouldn't apply to a more narrow function. And he said,
• 34:41
  Speaker 5: you know, it's hard to see what maintaining this injunction
• 34:42
  Speaker 5: would do to protect your clients, the nonprofits. So that was,
• 34:46
  Speaker 5: you know, something that we saw discussed as well. So
• 34:49
  Speaker 5: it was just this idea that this injunction as it
• 34:52
  Speaker 5: was issued might have made sense at the time, it
• 34:54
  Speaker 5: perhaps doesn't anymore. But then, of course we did see
• 34:56
  Speaker 5: the attorney with Democracy Forward say, you know, feel that
• 35:00
  Speaker 5: the government had not given enough assurances that this wasn't
• 35:03
  Speaker 5: going to be repeated the government said, government's lawyer said
• 35:06
  Speaker 5: things like, you know, there's no reason why we would
• 35:08
  Speaker 5: do this again, but did stop somewhat short of saying specifically,
• 35:11
  Speaker 5: I promise we will not do this again. And that's
• 35:13
  Speaker 5: really what the nonprofits attorney wanted to hear.
• 35:16
  Speaker 2: In order for the judges to declare this mood, do
• 35:18
  Speaker 2: they have to believe that the Trump administration is true
• 35:22
  Speaker 2: to its word and it's not going to initiate any
• 35:25
  Speaker 2: of these.
• 35:26
  Speaker 4: Freezes, not necessarily.
• 35:28
  Speaker 5: And that's one thing that it sounds like the judges
• 35:29
  Speaker 5: did consider was they said, you know, if we take
• 35:32
  Speaker 5: them at their word and we you know, go ahead
• 35:35
  Speaker 5: and order that this injunction be lifted, and then the
• 35:37
  Speaker 5: government were to go turn around and do the exact thing,
• 35:40
  Speaker 5: there would be a legal remedy for that. And so
• 35:43
  Speaker 5: I think in a way they were that was part
• 35:44
  Speaker 5: of their thinking was, you know, even if we did
• 35:48
  Speaker 5: lift this injunction, there's still recourse for you to come
• 35:51
  Speaker 5: back to court if the government turns around and says,
• 35:53
  Speaker 5: never mind, we're doing exactly the thing that we did
• 35:55
  Speaker 5: a year ago.
• 35:56
  Speaker 4: So there would still be legal recourse there.
• 35:58
  Speaker 5: So it almost seems that it doesn't matter, or at
• 36:00
  Speaker 5: least in the view of the appeals court judges, you know,
• 36:02
  Speaker 5: because there might be legal resource either way, whether the
• 36:05
  Speaker 5: injunction were still in effect or not.
• 36:07
  Speaker 2: So did it seem like they were leaning toward the
• 36:09
  Speaker 2: government in the hearing.
• 36:11
  Speaker 5: It seemed to me that my read of that panel
• 36:16
  Speaker 5: was that they were leaning to the government at least,
• 36:18
  Speaker 5: you know, really seemed to be receptive to the argument
• 36:21
  Speaker 5: that this injunction. You know, this many months later, and
• 36:24
  Speaker 5: given how much the situation has changed on the ground
• 36:28
  Speaker 5: that perhaps this isn't the one that makes sense to
• 36:30
  Speaker 5: have anymore. But certainly we'll see there's always a risk
• 36:32
  Speaker 5: to trying to read the tea leaves in court.
• 36:34
  Speaker 2: Let's turn now to the Federal Judiciary's Research Office removing
• 36:40
  Speaker 2: part of a climate section from an updated manual on
• 36:45
  Speaker 2: Scientific Evidence after backlash from Republican appointed attorneys general. So
• 36:53
  Speaker 2: they've had this manual and they're just updating it.
• 36:56
  Speaker 4: That's right.
• 36:56
  Speaker 5: This is a manual they've issued before. This is the
• 36:58
  Speaker 5: fourth edition. The ord though, was back in twenty eleven,
• 37:01
  Speaker 5: so it's been a while since we've seen an update.
• 37:03
  Speaker 5: And of course, when it comes to scientific evidence, these
• 37:05
  Speaker 5: things move quickly, so we see topics in this fourth
• 37:08
  Speaker 5: edition manual that include, for example, artificial intelligence. And the
• 37:11
  Speaker 5: idea is to provide judges with a little bit more
• 37:13
  Speaker 5: information when they're considering what evidence might be allowed to
• 37:16
  Speaker 5: be you know, included in you know, in litigation, like
• 37:19
  Speaker 5: just to kind of help them handle that evidence, to
• 37:21
  Speaker 5: know what would be an expert, what are a good
• 37:23
  Speaker 5: expert qualifications, just to give them an overview of some
• 37:26
  Speaker 5: of the issues that might be coming before them.
• 37:28
  Speaker 2: More than two dozen Republican appointed Attorneys General objected.
• 37:33
  Speaker 4: To this, that's correct.
• 37:34
  Speaker 5: They specifically objected to a section within the scientific manual
• 37:38
  Speaker 5: that was focused on climate science, written by two professors
• 37:42
  Speaker 5: affiliated with Columbia University who wrote, you know, eighty plus
• 37:46
  Speaker 5: ninety plus pages about climate science, s, greenhouse gases, you know,
• 37:49
  Speaker 5: just various concepts overview of climate science and also and
• 37:53
  Speaker 5: really what I think the Attorney General took issue with
• 37:56
  Speaker 5: a bit on the role of humans in climate change.
• 37:58
  Speaker 2: So by doing this, by taking this out, then the
• 38:02
  Speaker 2: federal judiciary is bowing to the climate deniers who think
• 38:07
  Speaker 2: that humans don't have anything to do with climate change.
• 38:11
  Speaker 4: It would appear that way.
• 38:12
  Speaker 5: The Attorney's General argued that this was a disputed, you know,
• 38:15
  Speaker 5: area of science, and that they didn't feel that the
• 38:18
  Speaker 5: researchers had you know, done a good enough job to
• 38:21
  Speaker 5: include you know, maybe more climate skeptics, you know, had
• 38:25
  Speaker 5: you know, acted like a human role in climate change
• 38:28
  Speaker 5: was you know, a given, and that they were concerned
• 38:30
  Speaker 5: that this would sway or favor, say environmental advocates in
• 38:34
  Speaker 5: climate related litigation where they may be seeking to hold
• 38:36
  Speaker 5: a government, local government, or a company accountable for their
• 38:40
  Speaker 5: environmental impact. And I think that's where they felt like
• 38:42
  Speaker 5: this would maybe put a thumb on the scale. I think,
• 38:44
  Speaker 5: as they said, in those types of cases. I spoke
• 38:47
  Speaker 5: to one of the researchers, and you know, she said
• 38:50
  Speaker 5: that her section had gone through all of the same
• 38:52
  Speaker 5: rigorous peer review as the other chapters that were left in.
• 38:56
  Speaker 2: And who is it that makes the final decision on.
• 38:58
  Speaker 5: This decision came from, at least as it was publicized,
• 39:01
  Speaker 5: the Federal Judicial Center, which is the research arm of
• 39:04
  Speaker 5: the Federal Judiciary. So we saw really a one sentence
• 39:07
  Speaker 5: letter from Judge Robin Rosenberg, who's the chair of the FJAC,
• 39:10
  Speaker 5: notifying the leader of the Attorney's General Group that the
• 39:13
  Speaker 5: section had been omitted. As she phrased it, there was
• 39:16
  Speaker 5: not any detail about what you discussion had gone on,
• 39:19
  Speaker 5: or you know, what considerations were taken into account. We
• 39:22
  Speaker 5: really just have that one page letter and the FJAC
• 39:25
  Speaker 5: decline to comment further.
• 39:26
  Speaker 2: It seems like they folded pretty quickly. Thanks so much, Suzanne,
• 39:30
  Speaker 2: always interesting to talk to you. That's Bloomberg Law reporter
• 39:34
  Speaker 2: Suzanne Monyac, and that's it for this edition of the
• 39:37
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• 39:40
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• 39:48
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• 39:55
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