Latest / rationally BASED / Episode 34 | Immigration and Due Process: the Emerging Battleground

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Episode 34 | Immigration and Due Process: the Emerging Battleground · rationally BASED

0:00
SPEAKER_01: Welcome back to Rationally Based, a podcast about law and politics on the edge.
0:04
SPEAKER_01: I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.
0:07
SPEAKER_02: I'm Catherine Johnson with Center of the American Experiment.
0:10
SPEAKER_00: And I'm Josh Kleinfeld, Rouse Professor of Law at George Mason's Scalia School of Law.
0:15
SPEAKER_00: Katherine, what's on deck?
0:17
SPEAKER_02: Well, this is a uh Supreme Court preview episode in some ways.
0:22
SPEAKER_02: Uh the new Supreme Court term will begin soon in October.
0:25
SPEAKER_02: So we are going to talk about three cases on immigration and due process.
0:30
SPEAKER_02: The first is that upcoming Supreme Court case about legal immigrants, lawful permanent residents convicted of major crimes who are being held pending a deportation hearing.
0:40
SPEAKER_02: Do they have due process, a due process right to be released if their detention lasts too long?
0:45
SPEAKER_02: Second Circuit says yes, and so district courts in the Second Circuit are ordering sex offenders and other criminals to be released.
0:52
SPEAKER_02: Then we have a Fifth Circuit case about illegal immigrants who have not been convicted of other crimes and are also being held pending a deportation hearing.
1:00
SPEAKER_02: Do they have a due process right to be released if their detention lasts too long?
1:04
SPEAKER_02: Third, a DC circuit case about recently arrived illegal immigrants whom ICE is trying to deport using fast track procedures.
1:12
SPEAKER_02: Basically the same deportation procedures for uh that we would use as we catch people at the border.
1:18
SPEAKER_02: Do they have a right to additional protections based on due process because they are physically in the country already?
1:23
SPEAKER_01: So lots of due process.
1:24
SPEAKER_01: Let's dive in.
1:39
SPEAKER_00: Okay, Catherine, Josh, what's where should we start?
1:43
SPEAKER_00: Why don't we start with the big picture and then the SCOTUS case?
1:47
SPEAKER_00: So what we've got in this episode is a whole series of cases about due process being used to blunk the Trump administration's efforts to deport immigrants who are legally subject to deportation.
1:58
SPEAKER_00: And the headliner is a SCOTUS case, but it's been bubbling up in the circuit courts as well in a variety of different, like factually distinct, different contexts.
2:07
SPEAKER_00: So here's the here's the big takeaway.
2:10
SPEAKER_00: Due process is emerging as perhaps the key legal issue connected to immigration in 2026-2027.
2:18
SPEAKER_00: It is the chief arsenal in the weapon of progressives who are opposed to the Trump administration's um uh policies on immigration.
2:26
SPEAKER_00: And here at Rationally Base, we aim to give you not just the surface level of cases, but the real legal substance.
2:33
SPEAKER_00: So what we're gonna do today is talk about the immigration issues, but we're also gonna talk about the larger legal concept of due process.
2:40
SPEAKER_00: We'll dive into that so you know what's, you know, what what this um weapon uh in the progressive arsenal really amounts to and where it's legitimately used and where it's not.
2:49
SPEAKER_02: Yeah, so we can probably start with just laying the groundwork of the Supreme Court case that is coming up this October.
2:55
SPEAKER_02: Um, this case is called Ganalo v.
2:58
SPEAKER_02: Black.
2:59
SPEAKER_02: Uh, can someone help me there?
3:00
SPEAKER_00: Uh no.
3:01
SPEAKER_00: I don't think it is.
3:02
SPEAKER_00: I don't know.
3:02
SPEAKER_00: I don't know how it's pronounced either.
3:03
SPEAKER_00: Ganalo is good with me.
3:05
SPEAKER_02: All right, gnalo.
3:06
SPEAKER_02: And uh at issue is 8 USC section 1226C, unlike 8 USC section 1225, which is what the Trump administration says requires mandatory detention of all illegal aliens, section 1226 is about deportable aliens, including lawful aliens, like those on tourist visas or any kind of lawful permanent resident status.
3:32
SPEAKER_02: So, from what I understand from the statute, it basically says if you're a deportable or removable alien, like a lawful permanent resident who's become deportable for some reason, then the government may detain that person.
3:46
SPEAKER_02: But when it comes to certain of these lawful permanent residents or other removable aliens, the statute provides that if they are convicted of certain crimes, and usually crimes of moral turpitude or aggravated felonies, then they must be detained pending the proceedings to remove them.
4:06
SPEAKER_01: I can't help you.
4:07
SPEAKER_01: I can't help you with moral turpitude either.
4:09
SPEAKER_01: Like actually, Joshua, you're the since we're here, let's digress for one moment.
4:13
SPEAKER_01: What is a crime of moral turpitude?
4:15
SPEAKER_01: Are criminal resident criminal law?
4:16
SPEAKER_02: Great question.
4:18
SPEAKER_00: So um in the old days, crimes of moral turpitude were a subclass of felonies that were particularly serious or called your moral character into question to a to a great extent.
4:29
SPEAKER_00: Things like um uh perjuring yourself on the witness stand, um, defrauding people, robbing people, um, certain kinds of violent crimes.
4:39
SPEAKER_00: These were the crimes of moral turpitude, and in opposed to what?
4:42
SPEAKER_00: Like what crimes are not moral turpitude?
4:44
SPEAKER_00: And that would be like tons of misdemeanors are not crimes of moral turpitude.
4:48
SPEAKER_00: Um uh in today's world, we have thousands and thousands of crimes, many of which are regulatory crimes or misdemeanors or felonies, but felonies of a technical nature that don't call your like long-term uh character as a person greatly into question.
5:02
SPEAKER_00: And so moral turpitude has always been a subcategory of criminal law for the things that make it um, you know, inappropriate for you to um to be a witness or other things that require a sort of honest character.
5:16
SPEAKER_01: Okay, so Catherine, back to the statute.
5:18
SPEAKER_01: So just in case you weren't following, if they are deportable and have committed, or by virtue of having committed, right, one or the other, a crime of moral turpitude or an aggravated felony, to the extent aggravated felonies are not morally turpitudinous, isn't it?
5:33
SPEAKER_00: Yeah, there there are there they do overlap sometimes.
5:35
SPEAKER_00: So, like one of the good.
5:40
SPEAKER_01: I like that word.
5:41
SPEAKER_00: That's a deal that is one of the cases we're dealing with involves a guy who had um some sort of sexual contact.
5:50
SPEAKER_00: Uh, I don't know if it was sex exactly, but some sort of sexual relationship with an 11-year-old.
5:56
SPEAKER_00: That's one of the plaintiffs in this case.
5:58
SPEAKER_00: That would be a crime that is both an aggravated felony and a crime of moral turpitude and makes him subject to deportation.
6:05
SPEAKER_01: I I think it was the child was under 11.
6:07
SPEAKER_01: Uh, because that's I think it was under 12.
6:09
SPEAKER_00: Whatever.
6:10
SPEAKER_01: Go ahead.
6:11
SPEAKER_01: But okay, so as Catherine said, the statute requires that they be detained pending removal, right?
6:18
SPEAKER_01: And I think we have the statute and uh parts of the statute in front of us, Catherine.
6:22
SPEAKER_02: Yeah, so what the statute said is says is that the attorney general shall take into custody um any alien who A is inadmissible by reason of having committed any offense covered in another section of this title, is deportable by reason of having committed any offense covered in another certain section of this title.
6:42
SPEAKER_02: C is deportable under a different section of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least one year.
6:53
SPEAKER_02: And then, or any alien who is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or serious bodily injury to another person.
7:13
SPEAKER_02: Like kind of a random selection, if you ask me.
7:15
SPEAKER_02: But the statute quite clearly requires a mandatory detention of any alien who has committed these crimes, pending a decision on whether the alien is to be removed from the United States.
7:33
SPEAKER_02: So this is the due process claim.
7:35
SPEAKER_02: Um, any kind of asylum claim, they they bring up these cat claims, all of these kind of internal appeals to the Board of Immigration, uh, it can take a long time because the alien himself is choosing to go through all of these proceedings that we call due process, right?
7:51
SPEAKER_01: Right.
7:52
SPEAKER_01: I I do think this is an important point that we will come back to.
7:55
SPEAKER_01: But at any point, theoretically, the alien could just return home, right, to the home country.
8:01
SPEAKER_01: And they can choose to make asylum claims, they can choose to make CAT claims, they can choose to appeal their process.
8:06
SPEAKER_01: It's not like the immigration judges are just saying, eh, we'll get to your case in nine months because we've we've got a backlog.
8:13
SPEAKER_01: That's not the issue here.
8:15
SPEAKER_01: So they're pending, they're being detained pending the decision to remove them, which decision could take a long time, depending on how many appeals, how many asylum claims are made, uh, and so on.
8:26
SPEAKER_01: Okay, so we've got two cases that the Supreme Court's hearing together, right, under this Ganalo v.
8:32
SPEAKER_01: Black case, right?
8:34
SPEAKER_01: Um uh one involves Carol Black, who's uh a male convicted of sexual abuse.
8:40
SPEAKER_01: This is Josh, you what you were mentioning, right?
8:41
SPEAKER_01: The child under 11 years old.
8:43
SPEAKER_00: Yeah, I think I was mistaken.
8:44
SPEAKER_01: Under 11, not under 12.
8:46
SPEAKER_01: Yeah, if and so endangering the love for the child.
8:49
SPEAKER_01: Uh so that puts him squarely under one of the statutes.
8:51
SPEAKER_01: He was detained for seven months.
8:53
SPEAKER_01: That doesn't even sound that long before the district court in the Second Circuit uh said had to be released.
8:58
SPEAKER_01: And then another GM.
8:59
SPEAKER_01: So I don't know if GM uh was a minor before or why.
9:03
SPEAKER_01: I don't think so.
9:04
SPEAKER_01: So actually, why is it just the initials?
9:05
SPEAKER_01: I'm not sure.
9:06
SPEAKER_01: But was convicted of assault, sentenced to years imprisonment, and he was detained 21 months when he was ultimately released because of a COVID injunction, actually, like several years ago.
9:16
SPEAKER_01: Um, and um actually the reason neither has been removed yet is because apparently once they're released, they get they go on the back burner because they have people who are still detained and they're trying to process them faster.
9:27
SPEAKER_01: So it's kind of interesting.
9:28
SPEAKER_01: So we have seven months, 21 months, the Second Circuit um ordered that they both were detained for too long under due process.
9:36
SPEAKER_01: Josh, what what's your take on uh these you know sort of circumstances before we dive into the legal stuff here?
9:42
SPEAKER_02: Can I say one thing?
9:43
SPEAKER_02: Like the the balls on this guy to have this kind of offense and then be like, I'm gonna take this to the Supreme Court because I think there is a technical technical issue going on here.
9:53
SPEAKER_02: Like, oh my god, like the crime is so horrendous, and now he thinks seven months is is too is too much.
10:01
SPEAKER_02: This is really kind of insane.
10:03
SPEAKER_00: You know, well, okay, I think the circumstances around these plaintiffs help fill in what the case is really about.
10:12
SPEAKER_01: I'm sorry.
10:14
SPEAKER_01: I just wanted on the record that I'm with Catherine.
10:16
SPEAKER_01: Go ahead, Josh.
10:17
SPEAKER_00: Well, I I I think these cases are trickier than they sound, as bad as these uh plaintiffs are.
10:22
SPEAKER_00: So the the circumstances around these plaintiffs fill in what the case is really about.
10:26
SPEAKER_00: Um, so Carol Black, again, a male, despite the name Carol, came to the United States in 1983 at age 21 as a lawful permanent resident.
10:36
SPEAKER_00: And he was convicted by a jury in 2000 of sexual abuse of a child under 11, uh, under 11.
10:43
SPEAKER_00: And he got sentenced at the time, so this is 26 years ago now, he got sentenced at the time for that crime.
10:50
SPEAKER_00: And shockingly, I don't know what that judge was thinking, but shockingly, he just got probation.
10:55
SPEAKER_00: So he was convicted by a jury of sexual assault of a child under 11.
11:00
SPEAKER_00: Go to prison for that, surely, right?
11:02
SPEAKER_00: But he didn't.
11:02
SPEAKER_00: He just got probation.
11:04
SPEAKER_00: That stunned me.
11:06
SPEAKER_00: In any case, the relevant part for present purposes is there were no immigration consequences at the time.
11:13
SPEAKER_00: So there were no immigration, he wasn't detained, he wasn't deported for 20 years until Trump won, when ICE detained him.
11:23
SPEAKER_00: And so what happened?
11:25
SPEAKER_00: Okay, in two, he's a lawful permanent resident, he commits a crime for which he is deportable under the statute in the year 2000, and he's convicted by a jury.
11:35
SPEAKER_00: It's not like the crime is hypothetical, he is convicted by a jury.
11:38
SPEAKER_00: And then you would think, you would expect he would go automatically into like detention and deportation proceedings, because that's what the statute says, but it did not happen.
11:47
SPEAKER_00: Uh, and it didn't happen to lots of people in that position.
11:50
SPEAKER_00: He was treated just like a citizen.
11:52
SPEAKER_00: He got his sentence, he served his sentence, which was just probation, and then he came out, and then in Trump won, so uh in the 2000s, in the you know, shortly before 2020, ICE agents snapped him up and detained him and uh were holding him pending deportation proceedings.
12:10
SPEAKER_00: And GM, this other plaintiff, is the same story.
12:13
SPEAKER_00: He came to the United States in 2011 at age 23 again as a lawful permanent resident.
12:20
SPEAKER_00: He pled guilty to assault in 2012.
12:22
SPEAKER_00: He did go to prison.
12:24
SPEAKER_00: He spent about 18 months there, and he came out and he went right back to his normal life.
12:28
SPEAKER_00: He was like living with his mom.
12:30
SPEAKER_00: And there were no immigration consequences whatsoever for five years until again Trump won when ICE detained him and held him.
12:39
SPEAKER_00: So big SCOTUS cases are about something, right?
12:42
SPEAKER_00: There's a larger context that gives the real subject matter.
12:46
SPEAKER_00: And what this case is about is ICE under Trump sweeping up long-term non-citizens with criminal records.
12:53
SPEAKER_00: And presidents before Trump did not do this.
12:56
SPEAKER_00: They varied in their willingness to detain and deport people who committed crimes, immigrants who committed crimes.
13:03
SPEAKER_00: But you'd think from the statute that it would just be automatic, because the statute says it's supposed to be automatic.
13:09
SPEAKER_00: You commit like a major crime, a major felony, a crime of moral turpitude, and you're a citizen, or excuse me, and you're an immigrant, not a citizen, well, you get detained, and then there's deportation proceedings.
13:20
SPEAKER_00: But it was not automatic.
13:22
SPEAKER_00: It wasn't automatic under any president.
13:25
SPEAKER_00: Most of these folks just went back to normal life after their um criminal proceedings as if nothing had happened, as if they were citizens.
13:32
SPEAKER_00: So when Trump first came to office, he ordered ICE to find these folks with old convictions and put them in detention facilities and start deporting them.
13:42
SPEAKER_00: And uh progressives and liberals objected that this was a surprise enforcement of the law, that there's something wrongful about it, that they're members of the American community, that this is hard-hearted, et cetera, et cetera.
13:55
SPEAKER_00: The policy problem is what this, you know, before Trump started doing this, we were allowing non-citizens to stay despite major crimes on their record.
14:06
SPEAKER_00: And the constitutional and rule of law problem is Congress's will was not being respected.
14:11
SPEAKER_00: Congress speaks through statutes.
14:13
SPEAKER_00: And the statute says explicitly that if a non-citizen commits one of these major crimes, the executive, quote, shall detain them pending deportation.
14:22
SPEAKER_00: That's the statutory structure, like remove non-citizens who commit major crimes.
14:27
SPEAKER_00: One of the great lessons of my whole, I've spent my adult life in the law, and one of the great lessons of a life in the law is that the law does not enforce itself.
14:36
SPEAKER_00: So Congress can write whatever it wants.
14:38
SPEAKER_00: If the executive or uh the governor, the mayor, the CEO of your company, uh, the president doesn't want to enforce it.
14:46
SPEAKER_00: It is all but impossible to make them enforce it, and they can effectively rewrite the law based on non-enforcement.
14:53
SPEAKER_00: And the immigration context is example number one.
14:56
SPEAKER_00: Trump is regarded as tough on immigration, but all he was doing was enforcing the immigration laws that Congress wrote when other presidents didn't.
15:05
SPEAKER_00: And that's the larger context here as Trump came around and started sweeping up immigrants with long, long-ago histories of criminal offending and saying, hey, the statute says you're supposed to be deported, we're going to detain you pending deportation.
15:21
SPEAKER_00: And, you know, liberal progressive judges objected.
15:25
SPEAKER_02: Why didn't people want to deport them before?
15:27
SPEAKER_02: I guess I was there just a backlog?
15:29
SPEAKER_02: There's too many of these people.
15:31
SPEAKER_02: I mean, someone who has um was it raped or sexually abused a child?
15:36
SPEAKER_02: There's no one in our country who thinks that that person should stay here, right?
15:39
SPEAKER_02: So how did these people end up here for an additional 20 years?
15:42
SPEAKER_02: Or does the other side really think those people should just stay here?
15:47
SPEAKER_00: That's a mystery to me, Catherine.
15:49
SPEAKER_00: It's such a great question.
15:50
SPEAKER_00: And um okay, was it pro-immigration sentiment?
15:58
SPEAKER_00: Was it sort of bureaucratic distraction and routine?
16:01
SPEAKER_00: There was just no procedure for it.
16:03
SPEAKER_00: Was it a massive backlog in our immigration courts?
16:06
SPEAKER_00: I just don't know.
16:07
SPEAKER_00: I mean, you would think that you've got a guy who is in a jury trial.
16:12
SPEAKER_00: And the question of the jury trial is did you criminally sexually assault someone under the age of 11, let's say a 10-year-old, and he is convicted, right?
16:22
SPEAKER_00: So that is as final as our system has.
16:24
SPEAKER_00: He's convicted beyond a reasonable doubt.
16:26
SPEAKER_00: It comes out in the trial that he's a non-citizen.
16:29
SPEAKER_00: You'd think it would just be routine that he would just be like turned over to federal authorities for um, like for routine deportation processing, and he'd be in prison serving out his state prison sentence or in an ICE facility and detention.
16:44
SPEAKER_00: And upon release from prison, he'd be deported.
16:47
SPEAKER_00: But that isn't how it works.
16:49
SPEAKER_00: Um, it is never automatic.
16:51
SPEAKER_00: It is um, I don't know about the word never, but it is not routinely automatic.
16:56
SPEAKER_00: Instead, um, we've just got tons and tons of people running around America with non-citizen status and serious criminal records, and they are not deported until Trump comes around sometimes 20 years later and says deport them.
17:09
SPEAKER_02: Yeah.
17:10
SPEAKER_02: Well, Elon, what do you think about the actual merits of this case here?
17:14
SPEAKER_02: Uh, what's your response?
17:16
SPEAKER_01: Yeah, so this is super interesting.
17:18
SPEAKER_01: Remember, it's not a question of the statute.
17:20
SPEAKER_01: So the next topic that we're going to revisit and that we've talked a lot about is the mandatory detention of those here illegally under 8USC 1225, which Catherine you mentioned.
17:29
SPEAKER_01: There, there's a debate over what the statute means exactly.
17:32
SPEAKER_01: No one debates what this statute means.
17:34
SPEAKER_01: No one debates uh that Carol Black and GM are within the statutory definition, that they're within the category of aliens to which the statute applies, that they uh have committed offenses that the statute refers to.
17:46
SPEAKER_01: So there's no question of statutory interpretation.
17:49
SPEAKER_01: They must be detained if the statute is to be followed.
17:53
SPEAKER_01: The question is instead a constitutional one.
17:56
SPEAKER_01: Is the statute constitutional, or does the statute somehow deprive them of liberty without due process of law?
18:04
SPEAKER_01: I actually think this the answer to this is easy and obvious, or so I did until before we were, you know, doing going over the show notes, and it turns out Josh and I disagree about this again, but I'm right about this, and I still maintain well we'll see, we'll see.
18:18
SPEAKER_01: You'll have a you'll have a chance, Josh.
18:19
SPEAKER_01: So just wait.
18:20
SPEAKER_01: Let me um there's sort of a lot to build up here.
18:23
SPEAKER_01: Uh, and so uh what is the original meaning of due process of law?
18:28
SPEAKER_01: I just kind of want to start there.
18:29
SPEAKER_01: This is a bit contested, um, but I think originalists generally agree about this.
18:34
SPEAKER_01: And I have a book called The Second Founding, uh, an introduction to the 14th Amendment, where I talk about this.
18:37
SPEAKER_02: Another You haven't ever mentioned your books before.
18:40
SPEAKER_02: Sorry, yeah, give it a clip.
18:42
SPEAKER_01: It's not the one over my shoulder.
18:44
SPEAKER_01: So I wanted, you know, to re-emphasize that I have two other books, including The Second Founding, an introduction to the 14th Amendment, um, which also has a really wonderful cover, and it's also just like 20 bucks.
18:55
SPEAKER_01: So you should absolutely buy it.
18:56
SPEAKER_01: You don't have to read it, but definitely worth a buy, uh, if you ask me.
18:59
SPEAKER_01: Anyway, where I go through the original meaning, sort of due process.
19:02
SPEAKER_01: A hugely influential paper here has also been Nathan Chapman and Michael McConnell have a paper called Due Process, a separation of powers, which I highly recommend to everybody in the Yale Law Journal.
19:11
SPEAKER_01: But the basic idea, as I understand it, of due process of law, is that before someone can be deprived of life, liberty, or property, right, before someone's house can be seized, before someone can be sent to the Tower of London, before someone can be executed, right?
19:25
SPEAKER_01: Two criteria must be satisfied.
19:28
SPEAKER_01: Criteria number one, there must be established law.
19:32
SPEAKER_01: Okay?
19:33
SPEAKER_01: What this means is um the king or even parliament can't say, uh, you know, Catherine, we really don't like sweaters.
19:41
SPEAKER_01: You're wearing a sweater, go to the Tower of London.
19:43
SPEAKER_01: Oh shoot, I'm wearing a sweater too.
19:45
SPEAKER_01: Okay, so Elon and Catherine, you go to the Tower of London.
19:47
SPEAKER_01: What it can do is pass a statute that says we find um sweaters uh made with foreign cloth to be illegal, and anyone who wear wears one shall be punishable by death.
20:00
SPEAKER_01: Let's suppose crazy.
20:01
SPEAKER_01: Okay, crazy, unreasonable.
20:03
SPEAKER_01: Okay, but the point is the law is established in advance.
20:05
SPEAKER_01: And if tomorrow, you know, you nevertheless wear a sweater, uh that is the law was established and you violated the law.
20:13
SPEAKER_01: It just has to be known in advance.
20:15
SPEAKER_01: The second criteria is your violation of the law has to be adjudicated according to certain fundamental procedures.
20:23
SPEAKER_01: Okay, there are really sort of two possibilities here.
20:27
SPEAKER_01: The narrow possibility is also that the procedures must merely be established in advance.
20:32
SPEAKER_01: So in England, this was probably the correct view, by the way, uh, at least in the 18th century, maybe not before.
20:38
SPEAKER_01: But in in Britain, you know, if Parliament wanted to give no procedure whatsoever, I suppose it could do that, right?
20:45
SPEAKER_01: But the minimum criterion was that the procedures had to be established in advance.
20:50
SPEAKER_01: A more capacious view was probably maintained, you know, under sort of the older English understanding of customary rights.
20:56
SPEAKER_01: And it's certainly the view in America that not only does the procedure have to be established in advance, but certain fundamental procedures always must be followed.
21:04
SPEAKER_01: There's certain fundamental minimum that even the legislature can't necessarily take away.
21:08
SPEAKER_01: Okay, so bottom line, there must be established law, and the procedures must be established in advance, and sort of, you know, the the procedures for determining your violation of the law uh have to meet certain landmark criteria.
21:23
SPEAKER_00: Okay.
21:23
SPEAKER_00: And can I just jump in here really, really quick?
21:25
SPEAKER_00: I don't mean to interrupt your flow there, Ilan.
21:27
SPEAKER_00: I agree with everything you've said.
21:29
SPEAKER_00: I just want to highlight something implicit in what you've said, which is that due process is not sort of like a contemporary, progressive, liberal left-wing invention or something like that.
21:41
SPEAKER_00: By no means.
21:42
SPEAKER_00: Due process is is a totally ancient feature of the rule of law and liberty in Anglo American civilization, right?
21:51
SPEAKER_00: So um I read that the first recorded reference to the phrase due process of law is from the 1300s in England.
21:58
SPEAKER_00: Uh, it always had natural.
22:01
SPEAKER_00: Did you read it in my book?
22:02
SPEAKER_00: The second chapter.
22:03
SPEAKER_00: I did not.
22:04
SPEAKER_00: I read it in Harold Berman's book, but uh um I might have read it in your book too.
22:09
SPEAKER_00: Um so due process is ancient, it's not a progressive uh invention.
22:14
SPEAKER_00: Um, it's also explicit in the constitution.
22:17
SPEAKER_00: So it isn't like extra-textual or something.
22:19
SPEAKER_00: The constitution explicitly says that the federal government, and for that matter, an amendment, the state governments, shall be bound by due process of law.
22:28
SPEAKER_00: So I just wanted to, you know, say I think due process is being misused in these cases, and we'll talk about how, but that doesn't mean there's something, you know, like conservatives or mega-conservatives should be opposed to due process.
22:41
SPEAKER_00: That would be crazy.
22:41
SPEAKER_00: We are in favor of due process.
22:43
SPEAKER_01: Right.
22:43
SPEAKER_01: So I should have started with that.
22:45
SPEAKER_01: So the Fifth Amendment, right, says no person shall be deprived of life, liberty, or property without due process of law.
22:51
SPEAKER_01: And the 14th Amendment, to which Josh was alluding, then makes that applicable to the states.
22:55
SPEAKER_01: No state shall deprive any person of life, liberty, or property without due process of law.
23:00
SPEAKER_01: So let me actually, you know, let's I was gonna go through this whole historical development, but um, I'd rather um spar with Josh.
23:08
SPEAKER_01: Again, we're jousting, and we'll see Catherine who who who by whom you are persuaded here.
23:12
SPEAKER_01: Under the original meaning, I think this is obviously not a due process problem.
23:17
SPEAKER_01: Why?
23:18
SPEAKER_01: Okay, because the the only due process problem here is this the statute says you are to be detained.
23:26
SPEAKER_01: You're to lose your freedom under condition A plus condition B.
23:32
SPEAKER_01: Condition A being your alien classification, condition B being a conviction uh for having committed some crime.
23:39
SPEAKER_01: In both of these cases, nobody denies that they are that they meet these conditions.
23:44
SPEAKER_01: No amount of additional process is necessary to determine whether they meet conditions A and condition B.
23:51
SPEAKER_01: If someone, if Carol Black said, Hey, I actually was not convicted of a crime under the statute, that then should needs to be adjudicated.
23:59
SPEAKER_01: They can't then just detain you until that is adjudicated.
24:02
SPEAKER_01: That's absolutely true.
24:03
SPEAKER_01: If Carol Black says, actually, I was born in the United States, I'm a birthright citizen despite my apparent immigration status, okay, then you can file a habeas petition, and that needs to be heard.
24:15
SPEAKER_01: That needs to be adjudicated.
24:17
SPEAKER_01: But if the two again, there's an there's a law established in advance that says if you meet condition A and condition B, you shall be detained.
24:24
SPEAKER_01: You shall lose your freedom for the duration in this case of the removal proceedings.
24:28
SPEAKER_01: There's no question that they meet condition A and condition B.
24:32
SPEAKER_01: That means no additional process is necessary.
24:34
SPEAKER_01: The law was established in advance.
24:36
SPEAKER_01: This is clearly not what is called a procedural due process problem.
24:40
SPEAKER_01: I just don't see this as a procedural due process problem.
24:43
SPEAKER_01: Now, what are what is Carol Black uh claiming and what is GM claiming?
24:47
SPEAKER_01: Well, their lawyers are claiming, well, they're entitled to a hearing to determine whether they're a danger to the community or a flight risk, or whether they are not those things such that they should be released on bot.
25:01
SPEAKER_01: Okay, but this that has nothing to do with the statute.
25:05
SPEAKER_01: You're trying to rewrite the statute.
25:07
SPEAKER_01: What they are saying is the statute is substantively unreasonable because it requires detention of these individuals who meet condition A and condition B.
25:17
SPEAKER_01: Whereas what they think is it would be more reasonable that if you are not a flight risk, you should be let off.
25:23
SPEAKER_01: If you're not a danger to the community, you should be let out on bond.
25:26
SPEAKER_01: But that's a question of the substantive merits of the statute.
25:30
SPEAKER_01: It is not a procedural due process problem.
25:33
SPEAKER_01: So properly understood, it is actually a substantive due process claim.
25:39
SPEAKER_01: So I'm happy saying more, and I want to say more about what substantive due process is.
25:44
SPEAKER_01: But Josh, let me get your reactions first.
25:47
SPEAKER_00: Yeah, so I do think of the procedural due process, substantive due process distinction a little differently.
25:52
SPEAKER_00: And um uh so as I think about it and have and have sort of been educated in the subject matter, uh, the core of procedural due process, core due process was always three things.
26:05
SPEAKER_00: You have a right to uh notice of the claim or accusation against you, you have an opportunity to be heard, and you have a fair and neutral decision maker.
26:15
SPEAKER_00: Those those three things.
26:16
SPEAKER_00: So to see clearly how important that is to liberty, um, think about what it means to lack it.
26:22
SPEAKER_00: Imagine that the police come to your house and grab you and you say, what for?
26:26
SPEAKER_00: And there's no answer.
26:27
SPEAKER_00: Or you say, what for?
26:29
SPEAKER_00: And they say you cheated on your taxes, and you say, No, I didn't, and that's it.
26:33
SPEAKER_00: You just disappeared at that point.
26:35
SPEAKER_00: Well, that would be a violation of your right to be heard, right?
26:39
SPEAKER_00: Or imagine you said, they say you cheated on your taxes, and you say, I have a right to be heard.
26:44
SPEAKER_00: I never cheated on my taxes, and you go before the court and uh the court is working for the police officer, and and the court isn't taking your argument at all seriously, no matter how good your argument is.
26:55
SPEAKER_00: That too would be an argument, uh problem with court due process, procedural due process.
27:01
SPEAKER_00: So, you know, big picture, a free society is characterized by a certain relationship to government.
27:06
SPEAKER_00: If you the government wants to do something adverse to you, uh you have a right to find out why and to argue against it and have a fair another person from the government, a judge uh or uh or some other neutral third party adjudicate that.
27:20
SPEAKER_00: And that is a good thing.
27:22
SPEAKER_00: So it can go wrong, and one of the ways in which it's gone wrong is judges freestyling and making up substantive due process claims.
27:31
SPEAKER_00: Um, and what that is, is when um uh there are claims that aren't really procedural in character.
27:39
SPEAKER_00: They're actually claims against laws that the judges just think are unjust or unreasonable in substance.
27:46
SPEAKER_00: So, like minimum wage, um a judge might say, a judge did say that's a substantive due process violation, people have a right to work.
27:54
SPEAKER_00: Or um there might be a law limiting abortion, and judges say that's a substantive due process violation, there's a right of privacy.
28:01
SPEAKER_00: And those things ultimately amount to just a judicial power grab.
28:05
SPEAKER_00: And the other way in which due process goes wrong is judges and lawyers using it to gum up the works.
28:11
SPEAKER_00: So maybe you have a law allowing capital punishment, the other side wants to stop capital punishment, but it fails, it tries to get it done politically and it fails, it tries to get it done through the Eighth Amendment and it fails.
28:23
SPEAKER_00: Okay, what do you fall back on?
28:24
SPEAKER_00: Due process.
28:26
SPEAKER_00: We need more review to see if there's new evidence.
28:28
SPEAKER_00: Your lawyer wasn't good enough, the jury wasn't fair enough, just more and more procedure for endless delay.
28:33
SPEAKER_00: And I think that's what we're seeing in these cases.
28:35
SPEAKER_00: But the reason I think this of this as fundamentally a procedural due process claim is what are these plaintiffs asking for?
28:44
SPEAKER_00: You know, Carol Black and GM.
28:46
SPEAKER_00: They're saying you can't hold us indefinitely without a hearing, right?
28:50
SPEAKER_00: That's for Okay, I disagree.
28:53
SPEAKER_00: Let me just finish the thought.
28:54
SPEAKER_00: Let me let me just get so um you can't hold us for eight months, 21 months.
29:00
SPEAKER_00: Imagine it was four years.
29:01
SPEAKER_00: You can't hold us for 48 months without a deportation hearing, deport us or release us.
29:06
SPEAKER_00: You can't just detain us indefinitely without a hearing.
29:09
SPEAKER_00: Why?
29:10
SPEAKER_00: Because procedural due process is I have a right to a hearing before a neutral decision maker.
29:15
SPEAKER_00: Okay, go for it, Elon.
29:17
SPEAKER_01: So hard disagree.
29:19
SPEAKER_01: It's not procedural due process because it's tantamount to saying the following.
29:24
SPEAKER_01: Okay, as you your let me take your example.
29:27
SPEAKER_01: Oh, you've committed tax fraud, and and you it would be procedural if you said no, I didn't, I want a chance to prove it, and they didn't give you a chance to prove it.
29:34
SPEAKER_01: But that's not what's happening here.
29:36
SPEAKER_01: You committed tax fraud.
29:37
SPEAKER_01: Yes, I did.
29:38
SPEAKER_01: In fact, I was convicted of tax fraud.
29:40
SPEAKER_01: I had my due process, I had my hearing.
29:42
SPEAKER_01: Okay, now you under the statute have a mandatory minimum of 10 years in prison.
29:46
SPEAKER_01: Okay, so I go to jail for 10 years, and then I file a lawsuit under our habeas proceeding saying that the 10-year mandatory minimum violates so-called due process because I'm not a flight risk to the community and I'm a good person of good moral character, and 10 years is too long, and I should be released.
30:04
SPEAKER_01: Okay, I want a hearing to determine those things.
30:07
SPEAKER_01: That doesn't make it a procedural due process because the thing to be determined at the hearing is totally irrelevant to the statute, which means that you are asking to alter the substance of the statute because you find it substantively unreasonable.
30:20
SPEAKER_01: I don't think that's procedural due process at all.
30:23
SPEAKER_01: And so that's what's going on here.
30:25
SPEAKER_01: And one lower, like other issue, Josh, is like they're they're they're not saying this is too long, deport me or release me.
30:32
SPEAKER_01: They can leave at any time.
30:33
SPEAKER_01: The reason it's taking so long to deport them is because they're insisting on all their internal agency review process.
30:38
SPEAKER_01: They're insisting on the due process that they get in the removal proceedings to then argue that there's a due process violation by detaining them while they avail themselves of the due process rights in the immigration proceedings.
30:51
SPEAKER_01: The whole thing just strikes me as crazy.
30:53
SPEAKER_01: Before I get your reaction and if I've convinced anybody, uh one thing about substantive due process, I just again want to emphasize the point.
31:01
SPEAKER_01: This is not an old idea.
31:03
SPEAKER_01: This is a very new idea.
31:04
SPEAKER_01: Some people say it's an old idea, okay?
31:06
SPEAKER_01: There are conservatives and originalists who say it's an old idea.
31:09
SPEAKER_01: But it's this idea that there are unwritten substantive limits on legislative power that judges say uh can enforce, even if, again, they're not written anywhere in the constitution.
31:19
SPEAKER_01: This is why Josh says that it's this sort of free-floating judicial policy uh power, right?
31:25
SPEAKER_01: Uh basically judicial policy-making power.
31:27
SPEAKER_01: It's where we get Roe v.
31:28
SPEAKER_01: Wade.
31:28
SPEAKER_01: Abortion isn't written anywhere in the Constitution.
31:31
SPEAKER_01: There's no procedural question like, oh, did you commit an abortion?
31:35
SPEAKER_01: Abortion was a crime, you should go to jail.
31:38
SPEAKER_01: No, all of that would meet procedural due process.
31:40
SPEAKER_01: It's the idea that it would be substantively unreasonable.
31:43
SPEAKER_01: It would substantively violate some fundamental unwritten right to an abortion, to choose, right, to terminate a pregnancy.
31:50
SPEAKER_01: Uh, and this concept of substantive due process, that the due process clause imposes these unwritten substantive limits on legislative power, it's oxymoronic, right?
31:59
SPEAKER_01: Um, John Hart Ely famously described it as like saying green pastel redness or something like that.
32:04
SPEAKER_01: It doesn't make sense.
32:05
SPEAKER_01: Is it about substance or is it about process, right?
32:07
SPEAKER_01: It's what got you Obergefell, the right to same-sex marriage.
32:10
SPEAKER_01: I'm not saying some of these cases couldn't be decided under some equality grounds or equal protection ground, but substantive due process has done a lot of mischief.
32:18
SPEAKER_01: And it seems to me that they are ultimately the claims here boil down to the proposition that it is substantively unreasonable to detain someone for a long period of time if they're not a flight risk to the community pending deportation proceedings.
32:31
SPEAKER_01: That is a substantive due process argument, and it will lose.
32:35
SPEAKER_01: It should lose 9-0, but it will definitely lose at least six to three uh at the Supreme Court, if you ask me.
32:41
SPEAKER_02: So, Josh, are you arguing that it's not a substantive due process issue and it's a procedural due process issue?
32:46
SPEAKER_02: Even though Carol Black and their his team, they're arguing that it's substantive due process issue?
32:53
SPEAKER_00: No, no, they're not arguing it's substantive due process.
32:55
SPEAKER_00: John Sauer, the solicitor general, is arguing that it's substantive due process, and Elon agrees with them.
32:59
SPEAKER_00: Carol Black and his team are arguing that it's procedural due process.
33:03
SPEAKER_02: Okay.
33:04
SPEAKER_01: I think we need a little clarification because to be clear, they are claiming their argument is a procedural due process argument.
33:10
SPEAKER_01: What I am saying, and what John Sauer is saying, is actually, no, you are masking a substantive due process argument under the language of procedure.
33:18
SPEAKER_01: That's right.
33:18
SPEAKER_00: That's right.
33:19
SPEAKER_00: And one more point about this: procedural due process versus substantive due process is uh a kind of an academic question or a gloss on the doctrine.
33:29
SPEAKER_00: I mean, at the end of the day, the question is: is this a good due process argument?
33:35
SPEAKER_00: Um and that is, I think I disagree with Ilan at two levels.
33:40
SPEAKER_00: Um, I see it as procedural, not substantive, and I'll explain why in a second.
33:45
SPEAKER_00: And I think it's a reasonably good argument, even though I would ultimately disagree with it if I were on the quote itself.
33:52
SPEAKER_00: I mean, honestly, Ilan, this might be a temperament thing, because the number of times you've been like, this is obviously wrong, and I'll be like, it's not obviously wrong, but I agree that it's wrong.
34:00
SPEAKER_00: I mean, that's just like you and me all the time, right?
34:02
SPEAKER_00: So to some extent it might just be our kind of intellectual temperament.
34:06
SPEAKER_00: Um, okay, I'll give you my take.
34:09
SPEAKER_00: I'm obviously right.
34:12
SPEAKER_00: I think it's possibly right.
34:14
SPEAKER_00: Yeah.
34:16
SPEAKER_00: All right.
34:16
SPEAKER_00: So why do I think this is procedural?
34:19
SPEAKER_00: Um, because uh they are complaining about the procedural protections being afforded them.
34:27
SPEAKER_00: They're asking for their hearing to come faster.
34:30
SPEAKER_00: And they're saying that if you detain me, I mean indefinite detention, if you're objecting to indefinite detention, that is a per that is procedural due process.
34:37
SPEAKER_00: You're saying you have a right not to be indefinitely detained.
34:41
SPEAKER_00: The analogy would be something like this.
34:43
SPEAKER_00: Imagine that you're, I'll take what Elon was working with, the um imagine tax evasion case.
34:49
SPEAKER_00: Imagine you are sentenced to tax evasion, and then you're held pending sentencing, and there's a separate sentencing hearing.
34:55
SPEAKER_00: This happens all the time in criminal law.
34:57
SPEAKER_00: There's a conviction proceeding and a sentencing proceeding.
34:59
SPEAKER_00: But now imagine you get convicted of tax evasion and you're held and held and held and held, and it's been 10 years, and you've never gotten your sentencing hearing.
35:11
SPEAKER_00: And you're like, wait a minute, sentence me.
35:14
SPEAKER_00: I mean, maybe the sentence for tax evasion is five years, and I've already stayed double that because I've just been detained for 10 years pending my sentencing hearing.
35:22
SPEAKER_00: That's not right.
35:23
SPEAKER_00: And that wouldn't be an objection to the statute in substance.
35:26
SPEAKER_00: That would be a procedural objection to indefinite detention.
35:29
SPEAKER_00: So that's how why I'm thinking of this as proceeding.
35:32
SPEAKER_00: And it's also why I think it's not a crazy argument that Carol Black and GM are making.
35:37
SPEAKER_00: I mean, it you can imagine uh like they're held pending deportation proceedings, and the they're held for one year, for two years, for three years, for four.
35:48
SPEAKER_00: Maybe JD Vance wins the next election, four becomes five, six, seven, maybe it's eight, maybe another Republican uh wins, it becomes 12 years of detain.
35:57
SPEAKER_00: At some point, you have you are doing the, you know, throw them in the Tower of London and just forget about them thing instead of doing what you've lawfully got to do, which is deport them.
36:07
SPEAKER_00: So um it's it's I mean, the at some point, this is why their argument isn't crazy.
36:14
SPEAKER_00: At some point, they've been detained for so long pending a deportation hearing that it is functionally indefinite detention and their due process rights are being uh denied.
36:27
SPEAKER_02: Can't they deport themselves at any time, Josh?
36:30
SPEAKER_00: They can.
36:30
SPEAKER_00: I don't think that relieves the uh due process violation.
36:34
SPEAKER_00: I I guess it's interesting.
36:36
SPEAKER_00: I mean, you could say um all they have to do is voluntarily leave, like ring the ring the like tap their, I don't know, their fork against the door of the jail cell and say, I'm ready to go, and get deported back to wherever they came from.
36:49
SPEAKER_00: I don't think that really I mean what they have is a right to a deportation hearing.
36:54
SPEAKER_00: And that is what's being delayed indefinitely.
36:56
SPEAKER_00: Maybe that maybe something else.
36:59
SPEAKER_00: I I yeah, I I disagree.
37:01
SPEAKER_01: So I don't want to rehash it or beat a dead horse, but like again, the statute uh requires mandatory detention if they meet certain qualifications.
37:11
SPEAKER_01: They meet those qualifications.
37:13
SPEAKER_01: Nothing the hearing will show will change that.
37:16
SPEAKER_01: So it is a is it a challenge to the substantive reasonableness of the statute?
37:20
SPEAKER_00: Now you can say but it's a constitutional right.
37:22
SPEAKER_00: So you can challenge the substantive reasonableness of the statute.
37:25
SPEAKER_00: You can say, well, excuse me, you can challenge the procedures afforded in the statute.
37:30
SPEAKER_00: So there's nothing like wrong with saying, okay, this statute violates my constitutional due process rights.
37:36
SPEAKER_00: That's just saying the statute's unconstitutional for procedural reasons.
37:40
SPEAKER_01: But again, that's not what's happening here, right?
37:43
SPEAKER_01: If the statute said, if you meet two characteristics, you shall be detained, and the executive gets to decide whether you meet those two characteristics and there's no adjudication.
37:52
SPEAKER_01: Again, that's a situation of someone saying, Hey, I'm actually an American citizen, or actually, I fall outside the scope of the statute.
37:58
SPEAKER_01: And if the executive official just said, no, I disagree with you, and you're indefinitely detained, that would be a procedural due process problem.
38:05
SPEAKER_01: Not here.
38:05
SPEAKER_01: Here, there is no question that they fall within this classification of aliens who shall be detained, who must be detained, and therefore it is not procedure.
38:15
SPEAKER_01: The question of is it reasonable to detain them that long while their other due process rights are being availing themselves of their other due process rights to the removal proceedings, to the deportation proceedings, is a substantive reasonableness question.
38:29
SPEAKER_01: And it's clearly substantively reasonable if we even believe in substantive due process, which we don't, at least I don't, um, for the reason Catherine said, which is the only reason it's taking this long is because they are availing themselves of internal agency procedures that give them a right to ensure uh you know to make claims that would withhold their removal, so to speak.
38:50
SPEAKER_01: Well, okay, you don't have to avail yourself of that.
38:53
SPEAKER_01: And the law says if you choose to avail yourself of that, you will be held pending your deportation.
38:58
SPEAKER_01: Because it turns out that 95% of these claims will fail, right?
39:01
SPEAKER_01: And they will be deported.
39:02
SPEAKER_01: Right.
39:03
SPEAKER_01: So, but that's again a substantive reasonableness under the statute.
39:06
SPEAKER_01: But Josh, you make a good point, and it I think it goes to show that it's all about framing how you're gonna do that.
39:12
SPEAKER_00: Yeah, so many things.
39:14
SPEAKER_00: And I just want to be clear the way I would uh sorry, just I wouldn't decide in GM's favor or Carol Black's favor in this case, if I were a judge.
39:22
SPEAKER_00: I would, I would say um uh they do have due process rights, but they can and should and must be detained, locked up, while awaiting deportation, while awaiting their deportation hearing, unless they are locked up for so long that it's tantamount to a second punishment or indefinite uh detention.
39:44
SPEAKER_00: And I don't think it rises to that level in either case.
39:46
SPEAKER_00: So that would be that would be the way I'd handle it as a judge.
39:49
SPEAKER_00: They'd still lose.
39:49
SPEAKER_00: I just treat it a little differently analytically than Elon would.
39:53
SPEAKER_02: It's hard for me to have these conversations because if I was in charge, I would skip over all of this and I would just hang the guy because he like sexually assaulted some trials.
40:02
SPEAKER_02: I mean, like, why this is all this is a little bit much for me.
40:05
SPEAKER_01: Many things you could do preceding the deportation that would solve the problem, perhaps.
40:10
SPEAKER_01: Yeah.
40:10
SPEAKER_02: Thank you.
40:11
SPEAKER_02: One other thing I wanted to bring up, um, because we talked about it before.
40:14
SPEAKER_02: I just wanted to quickly reference the conversation we had with Will Chamberlain, which was about the Zadvidas case.
40:20
SPEAKER_02: Is that how you said that one?
40:21
SPEAKER_02: The Supreme Court there held that there was no likelihood that Zadvidas would ever be removed because Lithuania didn't want to take him and there was nowhere else for him to go.
40:31
SPEAKER_02: So we talked about this issue where people end up getting detained for a long time.
40:35
SPEAKER_02: Um, but it's because their home country wouldn't take them.
40:38
SPEAKER_02: So it's a definite detention, not an indefinite detention.
40:42
SPEAKER_02: Is that the same situation or is it a little bit different?
40:45
SPEAKER_01: Right.
40:46
SPEAKER_01: So um in this uh case in the Second Circuit, Judge Menashi made this point a lot.
40:52
SPEAKER_01: Um, Judge Menashi, we've talked about on this podcast before.
40:55
SPEAKER_01: Um, again, not Josh's colleague, but in a way, predecessor.
41:00
SPEAKER_00: My predecessor.
41:01
SPEAKER_00: He he was the general counsel of the Department of Education before I was the general counsel of the Department of Education.
41:06
SPEAKER_00: He was general counsel under he was acting general counsel under Trump one.
41:10
SPEAKER_00: I was acting general counsel uh under Trump two previously.
41:13
SPEAKER_01: And he was at Scalia Law School before you were at Scalia Law School.
41:17
SPEAKER_01: Yes, he was a professor at my law school before I was a professor at Scalia Law School.
41:20
SPEAKER_01: Indeed.
41:21
SPEAKER_01: And so uh Judge Menache really focused on this in his, I think it was a denial of from a hearing on Bach in the Second Circuit, and it was very persuasive, uh short opinion.
41:30
SPEAKER_01: So I we commend Judge Menashi's opinion there to our uh listeners, but he explained this is unlike Zidvaitis or Zadvidas, you don't have to consider that issue.
41:40
SPEAKER_01: So in that case, I think it was 2000 or 2001, he was literally indefinitely detained because there was only one country he could plausibly go back to, and they didn't want him.
41:48
SPEAKER_01: They're like, no, you keep the criminal.
41:50
SPEAKER_01: And so, like, okay, well, he's deportable, we don't have to keep him, but we can't send him to Lithuania.
41:55
SPEAKER_01: So, what do we do?
41:56
SPEAKER_01: Does he languish in detention literally forever?
41:59
SPEAKER_01: Here, what they're saying is you don't have to address that, as Judge Menashi explained, because um it's it is definite.
42:06
SPEAKER_01: It could it could be seven months, it could be seven years.
42:09
SPEAKER_01: It depends on how much the internal agency process is used by the alien, right?
42:15
SPEAKER_01: Um but the point is the proceedings come to a close with the final removal decision.
42:20
SPEAKER_01: And uh, in that sense, it's not indefinite in the same way as the Zadvidas case was.
42:25
SPEAKER_01: Let me just say one last thing about this.
42:26
SPEAKER_01: Even Zadvidas, though, is substantive due process.
42:29
SPEAKER_01: Again, procedurally, there's no question that the statute allowed him to be detained pending removal to some other country.
42:35
SPEAKER_01: And then there's this question, okay, what if he can never be removed to another country?
42:38
SPEAKER_01: Do we indefinitely detain him?
42:40
SPEAKER_01: Assuming the statute allowed that, that's a question of substantive unreasonableness.
42:44
SPEAKER_01: Is it substantively so unreasonable, so outrageous to detain someone forever, even though the statute allows it for for because he doesn't belong in this country and he can't go anywhere else?
42:56
SPEAKER_01: And you know what?
42:59
SPEAKER_00: Yeah, sure.
43:00
SPEAKER_00: Did you say can we put him on a boat?
43:02
SPEAKER_02: Yeah, like that's just Australia.
43:06
SPEAKER_02: Australia had that little island where they would ship people off to.
43:10
SPEAKER_02: Do you know about this?
43:11
SPEAKER_01: Well, Australia itself.
43:18
SPEAKER_02: I don't know if they're still doing this, but this was I visited Australia a while ago.
43:21
SPEAKER_02: Yes, and this was a huge issue.
43:22
SPEAKER_02: They were putting their the people there illegally off on a little island if no one else would take them.
43:26
SPEAKER_00: What's the visit the island?
43:29
SPEAKER_00: Is that a tourist thing?
43:31
SPEAKER_00: Okay, Ilan, I have a bet for you.
43:34
SPEAKER_00: So um the Ganalo case involves this.
43:36
SPEAKER_00: I mean, sh it's very likely the Supreme Court will address the distinction between procedural and substantive due process.
43:43
SPEAKER_00: And however they rule, I think they're rule um against the plaintiffs.
43:46
SPEAKER_00: That is, they'll rule in favor of the administration because it's a stronger argument.
43:50
SPEAKER_00: But uh they were probably opine on whether this is a substantive due process issue or a procedural due process issue.
43:58
SPEAKER_00: I think it's procedural.
44:00
SPEAKER_00: Think it's substantive.
44:01
SPEAKER_00: How about five dollars?
44:04
SPEAKER_00: Let's bet.
44:04
SPEAKER_00: Let's we can revisit it on this podcast and see what the Supreme Court says.
44:09
SPEAKER_00: Five hundred.
44:11
SPEAKER_02: That's better.
44:14
SPEAKER_00: Five dollars, five dollars.
44:15
SPEAKER_00: Okay, that's a a kind of a big bet.
44:19
SPEAKER_00: You're very confident.
44:20
SPEAKER_00: Um five dollars.
44:21
SPEAKER_00: It's an honor bet.
44:22
SPEAKER_00: I was thinking of it as an honor bet.
44:24
SPEAKER_01: Sure, honor bet.
44:25
SPEAKER_01: It's the difference in our dispositions again.
44:26
SPEAKER_01: I think I'm obviously right uh, you know, about X, Y, or Z.
44:30
SPEAKER_01: And sometimes to be clear, I'm obviously right that the issue is complicated.
44:34
SPEAKER_01: But I whatever it is that I think is always obvious to me.
44:37
SPEAKER_01: I I just want to defend my sort of true disposition.
44:40
SPEAKER_00: Yeah, I don't I don't relate to ideas that way.
44:42
SPEAKER_00: Uh what I do is I tend to experience them as very dubious and doubtful, and then gradually to work my way through to a conclusion.
44:50
SPEAKER_00: And then I'm firm in my conclusion.
44:52
SPEAKER_00: I'm not easily moved, but I never think about it.
44:55
SPEAKER_01: But I I I wonder if that's what I'm actually saying, right?
44:58
SPEAKER_01: Because like, look at the incorporation stuff that I've written.
45:00
SPEAKER_01: This is going a little bit off the rails, but you know, it's not unrelated to substantive due process because that is the idea through which the Bill of Rights is incorporated against the states.
45:08
SPEAKER_01: Everyone thinks that the 14th amendment was intended to incorporate it.
45:11
SPEAKER_01: I went in thinking it was obvious, then I looked at all the evidence, and it's like, ah, there's actually shockingly little evidence.
45:17
SPEAKER_01: And then I kind of saw this alternative picture, and now I can't unsee that picture, and that picture is obvious to me.
45:24
SPEAKER_01: I think it's obvious, but it's not obvious to most people.
45:27
SPEAKER_01: So maybe I'm misusing the word obvious, right?
45:30
SPEAKER_01: Maybe that's the wrong word here, right?
45:32
SPEAKER_01: I think sometimes things become obvious when they are laid out, even if other people don't see it.
45:37
SPEAKER_01: But then I guess it's not obvious if other people don't see it.
45:39
SPEAKER_01: So maybe I'm misusing the word.
45:41
SPEAKER_00: But anyway, we're getting very meta.
45:44
SPEAKER_00: Let's get let's get to the next case.
45:46
SPEAKER_02: All right, our next topic is a Fifth Circuit case, Rodriguez versus Ortega, also about immigrants who are being held pending a deportation hearing.
45:55
SPEAKER_02: But these ones are not legal immigrants who have been commit convicted of crimes.
46:00
SPEAKER_02: These are illegal immigrants who have not been convicted of crimes other than like immigrating here illegally.
46:07
SPEAKER_02: So we've just been talking about AUSC section 1226.
46:13
SPEAKER_02: But listeners of this podcast will know that we've talked frequently about 8 USD section 1225.
46:18
SPEAKER_02: That's a section that the Trump administration has argued requires detention of all aliens who illegally entered the United States.
46:26
SPEAKER_02: So 1226 is about aliens generally, including lawful permanent residents, those on visas, visa overstays, and the like.
46:34
SPEAKER_02: And it provides that some of them may be detained pending removal or deportation proceedings, and that others must be detained.
46:42
SPEAKER_02: Um that's the discussion we just had.
46:44
SPEAKER_02: So there's a split in the circuit courts over whether illegal entrants, all of them, must be detained if they are eventually caught, even if they've been in the country for many years.
46:55
SPEAKER_02: Now, if you follow us on Substack, rationallybased.substack.com.
47:01
SPEAKER_01: And don't forget to like and follow and subscribe.
47:04
SPEAKER_01: I forgot to say that at the beginning of the episode.
47:06
SPEAKER_01: If you've gotten this far and you've liked it this far, please do all those things.
47:10
SPEAKER_01: Give us a rating, give us a review, and as Catherine just said, follow us on rationallybased.substack.com because what did we say there, Catherine?
47:17
SPEAKER_02: Well, we said uh there we had a post piecing together the various textual parts of the statute.
47:22
SPEAKER_02: We think the Trump administration has a pretty good argument because the statute deems all of these aliens to be applicants for admission.
47:29
SPEAKER_02: And since applicants for admission are seeking admission, obviously, they have to be detained.
47:35
SPEAKER_02: The Fifth Circuit was the first court to side with the Trump administration on this argument, but that didn't stop district judges in the Fifth Circuit from continuing to order these aliens released anyway.
47:46
SPEAKER_02: And the argument that they made was that if the Fifth Circuit's interpretation was correct, then that would violate due process.
47:54
SPEAKER_02: So we had some drama.
47:55
SPEAKER_02: A panel of the Fifth Circuit agreed with these district judges that the prior panel's interpretation would mean the statute violates due process.
48:04
SPEAKER_02: But then the full court, on its own initiative, which I'm told is very rare, ordered the case to be rehearsed in front of the full court.
48:12
SPEAKER_02: The case is called Rodriguez versus Ortega.
48:14
SPEAKER_02: That's what I introduced this with, and briefing will be completed by next month.
48:19
SPEAKER_02: So, Elon, how is any of this any different from what we just described?
48:23
SPEAKER_02: It sounds to me pretty similar, but how does this differ?
48:26
SPEAKER_01: Yes.
48:27
SPEAKER_01: So the third case we're going to talk about is different, because I think it is a procedural due process question.
48:32
SPEAKER_01: But here I think it's still a substantive due process question.
48:35
SPEAKER_01: We don't have to belabor it.
48:36
SPEAKER_01: I actually think our discussion on the Ganala V Black case answers this case.
48:39
SPEAKER_01: By the way, to the listeners, I can't remember if Josh or Catherine mentioned this.
48:42
SPEAKER_01: We package this is sort of like a Supreme Court preview.
48:45
SPEAKER_01: This might, this will go up to the Supreme Court at some point.
48:48
SPEAKER_01: Um, Ganala V Block's already there.
48:50
SPEAKER_01: Um the Supreme Court certainly will hear the statutory question.
48:54
SPEAKER_01: I don't know if it'll get to the due process question anytime soon, but all of these are destined in some way, I think, for the Supreme Court.
49:00
SPEAKER_01: Uh so what's at issue here is the same, the same problem as Ganalov Black under 1225, which again deals with any illegal aliens.
49:08
SPEAKER_01: So it's not lawful permanent residents who've become deportable, but any illegal alien who's been caught and say lived here for 40 years, maybe he he entered 40 years ago and uh was caught.
49:19
SPEAKER_01: The Trump administration view is they must be detained under the statute.
49:23
SPEAKER_01: We've talked about it on the podcast before.
49:25
SPEAKER_01: That is a hard question, where there are arguments on both sides, right?
49:28
SPEAKER_01: And we've made the argument, including on Substack, for why the Trump administration is right.
49:32
SPEAKER_01: But on the assumption that these that the statute supports the Trump administration, that the Trump administration is correct, that they must be detained if they illegally entered this country, pending their removal from this country.
49:45
SPEAKER_01: And if there's no question that these individuals were illegally detained, in other or were uh excuse me, were illegal in the country, right?
49:52
SPEAKER_01: In other words, that they fall within the category of aliens to whom the statute applies, right?
49:56
SPEAKER_01: You know, the for whom the statute requires mandatory detention.
49:59
SPEAKER_01: And in these cases, there isn't any question about that.
50:02
SPEAKER_01: So long as that's true, this is a substantive due process challenge.
50:07
SPEAKER_01: Okay.
50:07
SPEAKER_01: They can say, oh, I want a hearing to establish that I'm not a flight risk.
50:12
SPEAKER_01: Okay, this that's irrelevant to the statute.
50:14
SPEAKER_01: It's no different than someone saying, I want a hearing to establish that I have a really nice wife or a really nice husband or that my kids really need me.
50:23
SPEAKER_01: Okay, it doesn't matter.
50:26
SPEAKER_01: Those are substantive due process arguments because you're challenging the substance of the statute.
50:30
SPEAKER_01: The hearing you are asking for is to adduce facts that are simply irrelevant to the question of whether you should be detained or must be detained under the statute.
50:39
SPEAKER_01: And therefore, it is a substantive due process argument about these unwritten substantive limits on what Congress is allowed to do.
50:46
SPEAKER_01: It is not a procedural due process argument.
50:49
SPEAKER_01: I think the Fifth Circuit will see it that way.
50:51
SPEAKER_01: I'll bet another$5, Josh, but the Fifth Circuit's very friendly territory for me.
50:55
SPEAKER_01: So uh uh, but what I don't know, what's your take?
50:57
SPEAKER_01: Is it clearer here, or do you still maintain that you think it's procedural due process?
51:01
SPEAKER_00: I I do think it's procedural due process, but I agree with you that um uh the court's ruling in Ganalo will likely resolve this.
51:10
SPEAKER_00: I mean, at core, it's the same issue.
51:13
SPEAKER_00: This case, the relevant distinction here is not the fact that in the one case you have illegal immigrants, and in the other case, you have legal permanent residents who have committed crimes.
51:22
SPEAKER_00: The question in these two cases is when there's an immigrant who is deportable, and the statute says detain this person pending a deportation hearing, and the deportation hearing takes a really long time.
51:36
SPEAKER_00: When, if ever, do you have to release this person?
51:40
SPEAKER_00: Can the detention take years?
51:42
SPEAKER_00: At what point does it cross over into a due process violation uh when the detention goes on for um months and months or years and years as you await the deportation hearing?
51:53
SPEAKER_00: So all that matters is that you have a deportable immigrant.
51:56
SPEAKER_00: It doesn't matter that it's an illegal immigrant versus an immigrant who committed crimes from a due process standpoint, in my view.
52:03
SPEAKER_00: So I think that um these two cases will be whether literally or effectively resolved together by the Supreme Court's reasoning.
52:11
SPEAKER_00: And I'll tell you, my take on it is I would really love to hear thoughts on the court issue by judges who are not ideologically opposed to deporting immigrants.
52:22
SPEAKER_00: I mean, the question here about the law is a hard question.
52:26
SPEAKER_00: And it's getting scooped up into the fight over immigration because judges who are ideologically opposed to deporting immigrants are using due process as an excuse.
52:38
SPEAKER_00: They're using it as an excuse to gum up the works and interfere with deportations, just as, you know, decades ago, it was all but routine for judges opposed to capital punishment to use due process to gum up the works of capital punishment.
52:56
SPEAKER_00: We're seeing the same thing here.
52:58
SPEAKER_00: So, but there is a good due process argument.
53:01
SPEAKER_00: There, it's the argument I presented before.
53:03
SPEAKER_00: If you're holding a person pending a deportation hearing and they are entitled to a deportation hearing, but it's taking forever to get it, and you just continue detaining them, at some point you might be violating their right to a hearing.
53:18
SPEAKER_00: And that's the due process claim that I think is reasonable.
53:22
SPEAKER_00: And again, I'd I just love to hear what judges think, but it's become so politicized because of this immigration context.
53:28
SPEAKER_00: So, you know, take those extraordinary facts you alluded to, Catherine.
53:33
SPEAKER_00: Here's a little more detail about those.
53:35
SPEAKER_00: In February 2026, a panel of the Fifth Circuit ruled that illegal immigrants must be detained pending a deportation hearing.
53:43
SPEAKER_00: It's mandatory, no bond hearing given.
53:46
SPEAKER_00: There was a Reagan, a Trump, and a Biden judge on the panel.
53:49
SPEAKER_00: I mean appointed judges, appointed by Reagan, Trump, and Biden.
53:52
SPEAKER_00: The Reagan and Trump judges agreed, the Biden judge dissented, right?
53:57
SPEAKER_00: And then just five months later, July 2026, this both cases happened in 2026.
54:02
SPEAKER_00: There was another panel of the Fifth Circuit, which ruled that detained illegal immigrants have a due process right to a hearing regarding their detention and to be released on bond in the meanwhile.
54:15
SPEAKER_00: And that was an Obama-appointed judge and actually a George W.
54:18
SPEAKER_00: Bush appointed judge over a Trump judge dissent.
54:21
SPEAKER_00: And then eight days after that opinion, the Fifth Circuit granted rehearing on Bonk on its own motion, which automatically vacated the decision.
54:31
SPEAKER_00: And this whole thing just has the feel of panels fighting out their progressive, anti-progressive political views while wearing robes.
54:39
SPEAKER_00: It is a really bad look for the judiciary.
54:43
SPEAKER_00: It's undignified.
54:44
SPEAKER_00: I don't know what the solution is, but um boy, would I wish it otherwise.
54:49
SPEAKER_00: And frankly, I'd like to hear uh how a judge who is not ideologically committed to one side or another in the immigration wars thinks about the due process issue because I think it's a hard issue.
55:01
SPEAKER_02: I don't know if that judge exists.
55:02
SPEAKER_02: Do you think I I think this is similar to the conversation we have a lot on this show, which is, you know, can you be um kind of a neutral arbiter of the law?
55:11
SPEAKER_02: Is the judiciary ever, you know, making decisions that are completely separate from their political beliefs?
55:16
SPEAKER_02: I think no.
55:17
SPEAKER_02: And I think a lot of what we talk about is um they're brought up as excuses to justify their political beliefs in one way or another, due process here.
55:25
SPEAKER_02: But we've talked about many other ways that judges will do this and they'll use, you know, the legal principle that they feel suits them best to come to their pre-um established political opinion.
55:38
SPEAKER_02: Now that's kind of like a doomer perspective, right?
55:41
SPEAKER_02: But I think that that's how a lot of people see it, especially now anyway.
55:45
SPEAKER_00: You know, that that view in law schools it's known as legal realism.
55:50
SPEAKER_00: Um it's kind of a hard legal realism.
55:52
SPEAKER_00: Um I think it might be a little bit too cynical, but even if you were right, you can easily imagine a judge who cares more about due process than about immigration.
56:04
SPEAKER_00: And so maybe they have a political view about due process.
56:08
SPEAKER_00: They're really committed to like, no, due process means everybody gets a hearing, or due process does not, due process allows for mandatory detention.
56:17
SPEAKER_00: And at least you'd be hearing them not using due process as a fig leaf while they fight about immigration, but actually fighting about due process itself.
56:26
SPEAKER_00: I think as a second best, I'd be happy with that.
56:29
SPEAKER_00: But I don't think we even have the second best.
56:31
SPEAKER_00: I'm just, I'm worried that due process is just the football that's being kicked around as people fight about, um, fight about their immigration.
56:40
SPEAKER_01: Yeah, and a 10-second point about this, Catherine, your concern materialized in the statutory interpretation question in this case, right?
56:48
SPEAKER_01: Is the Trump administration right on the meaning of the statute?
56:51
SPEAKER_01: And all every single judge to agree with the Trump administration is a Republican-appointed judge.
56:56
SPEAKER_01: Every single judge to disagree, not every single, I actually do think that.
57:00
SPEAKER_01: There's one exception.
57:01
SPEAKER_01: Yeah.
57:01
SPEAKER_00: Um can I just mention something else?
57:03
SPEAKER_00: For all we know, one of these like 10 or 15 judges involved with the cases we've discussed so far, for all we know, one of them, two of them, five of them are totally neutral arbiters doing their job appropriately, but there's no way to tell the difference under the circumstances.
57:19
SPEAKER_00: So if someone really means every word they say about the due process clause, there's no way to tell the difference between that person and someone who is just purely motivated by immigration and is pretending to have a view about the due process clause.
57:32
SPEAKER_00: And that's that's part of what makes this uh process of sort of judicial integrity so difficult.
57:39
SPEAKER_02: That's a good point.
57:40
SPEAKER_02: And I think that a lot of people see judges as doing things like, you know, siding with the other side in certain kind of strategic ways as being the way that they try to prove that they are not political and ideological and they are actually just following the law.
57:57
SPEAKER_02: I think of like Amy Coney Barrett on the recent decision, you know, the birthright decision.
58:01
SPEAKER_02: I think a lot of people saw that as she's just siding with the left on this one because she doesn't want to be seen as a total person on the right.
58:07
SPEAKER_02: You know what I mean?
58:07
SPEAKER_02: So no matter what, I can make a cynical take on the judiciary, even though I fully agree with you, Josh.
58:14
SPEAKER_02: I think you're right that you can't tell the difference.
58:16
SPEAKER_01: Well, let's talk about our last case, which is a procedural due process uh question.
58:22
SPEAKER_01: So maybe this will actually sharpen uh the disagreement that I have with Josh, uh, if at all.
58:28
SPEAKER_01: Um so this involves expedited removal.
58:31
SPEAKER_01: It's called Make the Road and actually involves a dispute over jurisdiction too between two uh judges who uh I hope are friends at the pod, um, uh Judge Justin Walker and Judge Naomi Rao, both excellent judges on the DC circuit.
58:45
SPEAKER_01: They disagree on the jurisdictional question, which I'm eager to talk about.
58:48
SPEAKER_01: But maybe Catherine, bring it down to earth first.
58:51
SPEAKER_02: Yeah, so like you said, it's about expedited removal.
58:54
SPEAKER_02: All of these topics connect under 8 USC section 1225, which involves all those illegally entering or who illegally entered.
59:03
SPEAKER_02: The administration is allowed to remove most of them from the country, but for a subset, it can engage in what's called an expedited removal.
59:10
SPEAKER_02: These are much faster than normal removals, and normally there isn't even an immigration judge involved.
59:16
SPEAKER_02: The statute basically allows the executive branch to designate certain categories for expedited removal.
59:22
SPEAKER_02: It's always applied expedited removal to arriving aliens, those who come to a port of entry.
59:28
SPEAKER_02: But what about those who evaded inspection and snuck into the country, those who are already in the United States?
59:35
SPEAKER_02: The statutes allow the executive branch to designate those individuals for expedited removal so long as they haven't been in the US continuously for at least two years.
59:46
SPEAKER_02: So for a long time, the executive branch didn't apply expedited removal to this whole category.
59:52
SPEAKER_02: It limited it, for example, to anyone caught within 100 miles of the border and who entered within the previous 14 days.
59:59
SPEAKER_02: But again, the statute allows the designation of any illegal alien caught anywhere if he hasn't been continuously in the US for two years.
1:00:09
SPEAKER_02: So the Trump administration tried to expand this designation to the maximum allowable by statute, not just once, but twice.
1:00:17
SPEAKER_02: It first did so in 2019, but it was enjoined by a district court.
1:00:22
SPEAKER_02: Surprise, surprise.
1:00:23
SPEAKER_02: Then the Biden administration assumed power and rescinded the effort anyway.
1:00:27
SPEAKER_02: So they were ready to go with a second attempt on day one, like they were with a lot of stuff we talk about.
1:00:32
SPEAKER_02: Kudos.
1:00:33
SPEAKER_02: On January 21st, 2025.
1:00:35
SPEAKER_02: And it was, of course, enjoined again.
1:00:37
SPEAKER_02: The DC circuit recently ruled that the administration could proceed with its policy.
1:00:42
SPEAKER_02: Seems easy under the statute, right?
1:00:45
SPEAKER_02: But there was another due process argument.
1:00:47
SPEAKER_02: Can you guys explain?
1:00:49
SPEAKER_01: Yeah, so really there's the question of does Trump have authority to have this policy?
1:00:55
SPEAKER_01: And the answer is yes, obviously.
1:00:56
SPEAKER_01: Obviously, you can the statute allows them to use expedited removal for anybody who has not been in the country continuously for two years, caught anywhere in the country.
1:01:06
SPEAKER_01: Now, historically, it wasn't used that way because it starts to get hard to prove, right?
1:01:11
SPEAKER_01: If you were, you know, if you're caught in Detroit and you entered two years ago or three years ago in the southern border, and you, you know, how do you know if you've been here continuously, not continuously for two years and so on?
1:01:21
SPEAKER_01: It gets harder to prove.
1:01:22
SPEAKER_01: And here it is a due process argument.
1:01:24
SPEAKER_01: The organization Make the Road, uh, which is uh filed this challenge in in multiple places, but including uh this was in the DC, actually, uh it was in New York, but the statute I think requires the challenges to be brought in DC.
1:01:36
SPEAKER_01: So DC circuit, so now I'm uh but I I may have that a little bit wrong, but it's in the DC circuit.
1:01:41
SPEAKER_01: Uh, they are making a procedural due process argument.
1:01:44
SPEAKER_01: They are arguing that in extending uh the rule to anybody in the country who entered within the previous two years, the administration is not giving sufficient opportunity for a detained individual to prove that they were, in fact, continuously in the country for more than two years.
1:02:01
SPEAKER_01: Make the Road is also claiming uh that the administration is not giving an opportunity for people to make credible fear uh allegations for asylum purposes, even though the statute does allow that as well.
1:02:14
SPEAKER_01: If all of those things are true, they would be plausible procedural due process arguments.
1:02:19
SPEAKER_01: Um, but in this case, on the merits of that, the DC circuit basically said um the fact that some individual officers aren't following the law by not referring you to a credible fear interview for asylum, for example, doesn't mean the Trump administration's policy, which allows for it, does allow for credible fear determination is unlawful.
1:02:41
SPEAKER_01: So there seems to be some officers who truly are acting unlawfully here by not giving a chance to prove that you haven't been, that you have been continuously in the United States and that you don't have credible fear and so on of going back to whatever country.
1:02:54
SPEAKER_01: Um, but that sounds like it's on the ground individual officers who should be enjoined.
1:02:58
SPEAKER_01: It's not the policy itself that's a problem.
1:03:01
SPEAKER_01: And that's basically what the DC circuit held.
1:03:04
SPEAKER_01: Josh, any take on the merits before we talk about the uh jurisdictional quirk?
1:03:09
SPEAKER_00: Yeah, I think this is another case where you've got a due process argument that has some merit but is being used in an abusive context.
1:03:16
SPEAKER_00: So let's steel man the argument of the make the road, I think it's a nonprofit, right?
1:03:21
SPEAKER_00: The make the road nonprofit.
1:03:22
SPEAKER_00: Okay, let me try to steel man that.
1:03:24
SPEAKER_00: So the way the expedited procedure works, right?
1:03:27
SPEAKER_00: This is all about the expedited procedure, this case.
1:03:31
SPEAKER_00: And the way the expedited procedure works is basically an immigration officer, an ICE officer, does an interview with the um with the immigrant.
1:03:41
SPEAKER_00: And if the answers come out in a way that doesn't give them a right to stay in this country, then the officer says, okay, just deport them immediately, and they just get deported.
1:03:50
SPEAKER_00: And um the thing is, the grounds for staying or for getting a more extensive procedural protection, uh, the immigrant doesn't necessarily know them.
1:04:03
SPEAKER_00: So the ICE officer doesn't have to tell the immigrant, hey, if you've been here two years or more continuously, you get to stay.
1:04:12
SPEAKER_00: The ICE officer doesn't have to tell the immigrant if you have a credible fear of religious persecution, you get to stay, or at least you get additional proceedings.
1:04:20
SPEAKER_00: So the ICE officer just starts saying to the immigrant, um, I don't know, I'd have to look at the particular questions in the interview, but um, you know, what's your name?
1:04:29
SPEAKER_00: Where are you from?
1:04:30
SPEAKER_00: When did you arrive?
1:04:31
SPEAKER_00: Stuff like that.
1:04:32
SPEAKER_00: And then just says, okay, you're deployable, you're out of here.
1:04:35
SPEAKER_00: And what Make the Road is saying is, wait a minute, the immigrant has has to be entitled to assert their statutory grounds for more extensive process or for staying.
1:04:44
SPEAKER_00: They have to be able to be told if you've been here for two years continuously, you can provide evidence of that, you can stay.
1:04:51
SPEAKER_00: So they should be given information, they should be given counsel, they should be given a judge, not just an interview with really an adverse party, the ICE officer who is trying to deport them and not telling them what their underlying rights are.
1:05:03
SPEAKER_00: Okay, so that is not a crazy argument from first principles.
1:05:09
SPEAKER_00: Um, but as a procedural due process minimum, do they have notice?
1:05:16
SPEAKER_00: Do they have an opportunity to be heard?
1:05:18
SPEAKER_00: Well, yes, they do have an opportunity to be heard.
1:05:21
SPEAKER_00: They're being heard by the immigration officer.
1:05:24
SPEAKER_00: It's pretty minimal.
1:05:25
SPEAKER_00: The government says ICE doesn't have to give immigrants legal advice.
1:05:29
SPEAKER_00: They get an interview, that is enough.
1:05:32
SPEAKER_00: And I guess my take on it, and this is a take you've heard from me in probably, I don't know, half a dozen other episodes on diverse issues.
1:05:43
SPEAKER_00: It's kind of a populist take on constitutional law.
1:05:46
SPEAKER_00: You've got a democratic process by which Congress makes the law.
1:05:50
SPEAKER_00: And Congress created this expedited process because they wanted to get rid of illegal immigrants more rapidly than.
1:06:00
SPEAKER_00: Than would otherwise be available with an immigration judge.
1:06:02
SPEAKER_00: And then you've got a second democratic process that brings Donald Trump to office twice, largely on immigration grounds.
1:06:09
SPEAKER_00: And then you've got judges and nonprofits trying to use vague constitutional law.
1:06:16
SPEAKER_00: And ancient as due process of law is, it is vague.
1:06:19
SPEAKER_00: They're trying to use vague constitutional law to thwart that double democratic process.
1:06:25
SPEAKER_00: The legal argument isn't crazy, but it is improper to for judges to assert kind of when you don't have a really clear mandate from the constitution, when it's vague, when it's open-ended, when it's arguable and it could go either way, they should not get in the way of the democratic will to that extent.
1:06:45
SPEAKER_00: So that's my take on it is that you know the expedited process is pretty tough on immigrants, but it's tough within the four corners of allowable constitutional law and it's consistent with the democratic will.
1:06:58
SPEAKER_01: I agree with yeah, I agree with Josh.
1:07:00
SPEAKER_00: Look at that.
1:07:01
SPEAKER_00: Ah, hey, that's a winner.
1:07:03
SPEAKER_00: That's a win at the end of the episode.
1:07:05
SPEAKER_01: So not quite the end because let me just say the jurisdictional dispute, because when Justin Walker and Naomi Rao, two stalwarts of the DC circuit, both Trump appointees, disagree about something, you need to listen because an academic paper is, I don't know, necessary.
1:07:22
SPEAKER_01: And in fact, I may have just posted one yesterday that touches on this topic.
1:07:27
SPEAKER_01: So if anybody is interested in whether the Administrative Procedure Act, through its sec through its Section 706 uh language, which allows judges or courts to set aside unlawful agency action, does that mean they could like literally erase the statutes from the regulatory books, from the code of federal regulation?
1:07:44
SPEAKER_01: Can they bind non-parties by vacating a regulation?
1:07:47
SPEAKER_01: I just posted a paper called Set Aside.
1:07:49
SPEAKER_01: Um, and so go to SSR Ed and look at that if you're interested in this issue.
1:07:53
SPEAKER_01: But let me, the dispute between Justice Judge Walker and Judge Rao deals with this question.
1:07:58
SPEAKER_01: So let me just, I know we're kind of out of time.
1:08:01
SPEAKER_01: So if you stuck with us, just give me two minutes of your time to lay this out and we'll talk more in the future.
1:08:06
SPEAKER_01: So the statute strips the courts of a certain kind of jurisdiction.
1:08:11
SPEAKER_01: What does the statute say?
1:08:13
SPEAKER_01: It says, regardless of the nature of the action or claim, no court other than the Supreme Court shall have jurisdiction or authority to enjoin or restrain the operation of these immigration provisions, other than with respect to the application of such provisions to an individual alien against whom proceedings have been initiated.
1:08:32
SPEAKER_01: All claims, in other words, that the statutes unlawful or the policy is unlawful have to be brought by the individual as a defense to the removal proceedings, for example.
1:08:40
SPEAKER_01: But this, make the road, was a challenge to the policy, period, of extending it to all aliens without, you know, giving sufficient process and so on.
1:08:48
SPEAKER_01: Okay.
1:08:49
SPEAKER_01: So what's the problem here?
1:08:51
SPEAKER_01: The district court didn't issue an injunction.
1:08:54
SPEAKER_01: The statute, remember, prohibits courts from enjoining or restraining.
1:08:58
SPEAKER_01: Well, there was no injunction.
1:08:59
SPEAKER_01: The district court issued an administrative stay under section 705 of the APA, which basically allows courts to make all necessary for claims under the APA.
1:09:09
SPEAKER_01: The courts may issue necessary and appropriate process to postpone the effective date of an agency action.
1:09:15
SPEAKER_01: Well, if this is an agency rule, then I'm not enjoining or restraining an officer from enforcing the rule.
1:09:22
SPEAKER_01: I am simply keeping the rule from even taking effect.
1:09:26
SPEAKER_01: I am basically temporarily vacating the rule.
1:09:29
SPEAKER_01: So I'm not enjoining an officer.
1:09:31
SPEAKER_01: I'm not operating on the officers.
1:09:32
SPEAKER_01: I, the court, am operating on the rule itself, which is what happens when judges vacate or set aside agency regulations, which is all of my new paper is about.
1:09:42
SPEAKER_01: So what's the dispute?
1:09:43
SPEAKER_01: Judge Walker thought that this was okay.
1:09:45
SPEAKER_01: Judge Walker thought that the court had jurisdiction because if it could vacate the rule ultimately, then surely it could issue a stay of the rule and for interim relief.
1:09:56
SPEAKER_01: It didn't violate the statute because it the court's stay wasn't an injunction.
1:10:01
SPEAKER_01: It wasn't restraining an officer.
1:10:03
SPEAKER_01: It wasn't enjoining an officer.
1:10:04
SPEAKER_01: It was simply staying the rule itself.
1:10:07
SPEAKER_01: And Judge Rao, I'm closer to Judge Rao on this.
1:10:10
SPEAKER_01: Um, she basically said in this case it was committed to agency discretion by law, so it really didn't matter.
1:10:15
SPEAKER_01: Uh, and for that reason, the administrative state was inappropriate.
1:10:18
SPEAKER_01: But for whatever it's worth, uh, I actually um uh don't think that the APA authorizes judges most of the time to operate directly on the rules themselves.
1:10:30
SPEAKER_01: So I think the way rules are enjoined is by enjoining officers from enforcing those rules.
1:10:36
SPEAKER_01: And so a stay and an injunction is one and the same.
1:10:38
SPEAKER_01: That is what my paper basically argues.
1:10:41
SPEAKER_01: And so I don't think Judge Walker or Judge Rao is has exactly my view, either of them, but I'm closer to Judge Rao about this.
1:10:47
SPEAKER_01: Weights super technical, probably.
1:10:49
SPEAKER_01: Uh, and so we will unpack that sort of when we have a future opportunity to do so.
1:10:54
SPEAKER_01: But that is sort of a debate um to watch.
1:10:57
SPEAKER_01: All right.
1:10:58
SPEAKER_00: It's almost like a I was gonna say it's almost like a jurisprudential uh uh question of like how do you characterize the different actions a judge might take under the APA?
1:11:10
SPEAKER_00: That's right.
1:11:11
SPEAKER_00: Both technical and philosophical.
1:11:13
SPEAKER_00: I think we'll have to wait on that until we get some more movement in the courts.
1:11:17
SPEAKER_02: What do I as a non-lawyer do with these like C L E credits that I'm gaining from doing this podcast?
1:11:22
SPEAKER_02: I feel like I should get some sort of like, I mean, what what do I get out of this?
1:11:26
SPEAKER_02: I don't know.
1:11:26
SPEAKER_02: I guess, I guess just the knowledge.
1:11:28
SPEAKER_02: Thank you guys.
1:11:29
SPEAKER_01: You're most welcome.
1:11:30
SPEAKER_01: And there are some states where you could probably just sit for the bar exam and become a lawyer without taking going to law school.
1:11:35
SPEAKER_01: I don't know if there are many, but you could always go there and practice there, Catherine.
1:11:38
SPEAKER_02: I like that idea with that knowledge.
1:11:40
SPEAKER_01: Well, that's all we have time for today.
1:11:42
SPEAKER_01: Thank you for your attention.
1:11:43
SPEAKER_01: As always, hit that like and subscribe button.
1:11:45
SPEAKER_01: Leave us a rating, leave us a review, and we will see you next week.