Courts Delay Reopening and New Trump Census Fight

highlights the threats to judges outside the courthouse. While attacks on federal judges and their families are rare, the U. S. Marshals Service, task with protecting about hundred federal judges and thirty thousand, three hundred other court officials, reported increases in threats and inappropriate communications against the judiciary in recent years. Joining me as Bloomberg Law reporter Madison Alder tell us about the suspect and his legal background. So, the suspect here,

Roy Dun Hollander, is you know, a lawyer. He had some big law tighs um, but he hadn't worked for a big law firm in quite some time. And what we found at our research, she has now deceased by the way um. According to the Youth Attorney's Office in the districts of New Jersey, he was not apprehended. Some reports are saying that he was found of the potentially a self inflicted gunshot wound. And you know Hollander had a case before Sallas, this judge whose family was attacked.

He appeared before her in case about the male only military draft. From what we can tell as the docket, he was physically before her in court. Um looks like once in and you know, maybe appeared by phone before that. Do we know if the judge was the target. We do not know yet. The Attorney General bar announced that there's going to be an investigation of this by the Marshall Service. You know, they're probably looking into that, but there haven't been further details on on if she was

the target of attack. It we rarely hear about attacks on judges. How rare are they They're they're pretty rare. Um, They overall are are pretty rare over the years, though there there have been several They come to mind when another one happens again. Um, so you know there have been um at least four judges that have been killed

in attacks. And then there's another case in two thousand's five where a judge's husband and mother were attacked in her home and that case actually prompted an appropriation by Congress. It's homarly dollars to fund security systems for judges and security systems for their homes. So you know, some of these attacks have prompted action by Congress before. You know, there hasn't been discussions of that this time. It is still early, but it isn't unprecedented that you know, security

is heightened after an attack like this. Has there been a slight increase in violence against judges according to the Marshall's Office, So there haven't been an increase in violence against judges, but there has been an increase in incidents inappropriate communications and threats. They say that that has risen by more than In their budget submission, the Marshal Service budget submission for UM, they addressed this and you know said that they expected to rise steadily over the next

few years. UM and they're saying that could come from complex thrusts is what they call them. Uh. So you know this is coming as you know, judges maybe are facing a little bit more turbulence when it comes to their their positions and the types of threast that they're getting. Aren't judges protected by the U. S. Marshal Service, they

are UM the U S. Marshal Service. You know, I I spoke to one man who who used to be UH the U s Marshal John S. Mufflers, the former administrator chief Inspector of the National Center for Judicial Security, and he told me that these courts are fortresses. Um, they are very protected, but the more likely uh place for an attack, it's outside of the courtroom. So for judges, um, like any public figure, they're more likely subject to an attack when it is at their home at a place

that they frequent um, grocery store. Um. And those are areas where they're they're always you have going to be on alerts. This is something that you know, judges are concerned about. Their concerned about this for their families. Um. You know, and it's supposed to people who said this particular situation seems like it was probably pretty unavoidable. You know. You can only do so much to to protect yourself outside of the court and protect your homes. Are they

given protection at their homes? Yes, so there isn't necessarily martial service protection at their home. But um, this after that two thousand five attack on the judges on a federal judges family, Congress appropriated new new money to fund home security systems. So that is what judges um are able to have for their home security. Systems. Um, you know, they they can be protected that way, but um, it isn't necessarily you know, it's not like the Secret Service.

You know, it's not like they have a bodyguard stationed outside of their house. And what about Supreme Court justices. Supreme Court sustices are a different story. They do have heightened protection where they go and you know, where they're speaking, but unfortunately, for a lot of lower court judges it's not the same. So there are quite a few of them, so I think it it becomes a matter of its essentially being a big lift to have that kind of

security for every every lower court judge. Maddie, you spoke to retired federal judge David herned In, a former chair of the Judicial Conferences Committee on Judicial Security, and he said that the attack on the judge is home would have been difficult to prevent. And it's that kind the

thing that judges have to worry about all the time. Right, Um, yeah, this is this is something that is a reality for judges that you know, it is rare that there are attacks, but um, you know, judges are in a position where they are dealing with really sensitive issues sometimes and um, you know that can that can put them in a

position to be the subject of anger for people. Like we said, in this attack on on judge solves the family, we don't know if she was the subject, but in many of these other attacks, judges were the subject of the attack, and they were the subjective of some kind of Harvard anger. Um. So it's it's the reality of the job. Unfortunately, let's turn to the court houses themselves now.

Federal and state courts have been struggling to figure out how to resume more normal operations while protecting public health after the pandemic forced them this spring to postpone jury trials and whole more proceedings remotely via video and audio. Courts have begun to reopen, but some courts are pumping the brakes on reopening efforts as COVID nineteen cases rise

throughout much of the US. How many courts are pumping the brakes on reopening, Well, we've actually seen a few courts, um many federal courts sighting increases in their areas when they decided to extend their previous orders and say, you know, we're not going to be reopening. We're not going to restart in person operations. We've actually seen some pushback states for restarting things like dury trials UM fighting those increases

in in cases UM. But in other areas, we are seeing a little bit of tension between courts UH, staff and lawyers in terms of reopening UM. You know, there have been a couple of lawsuits, there's been at least one OSHA complaint UM you know, and there's there's questions urgent about help and safety and standards to keep these courthouses safe for for workers and attorneys. Have any lawyers or lawyers groups said we don't want you to open

the courts. We don't want to come back to the courthouse right now, or perhaps even victims or witnesses who have to testify don't want to come into that situation.

So we have seen a little bit of pushback, and in New York that came to ahead when several public defender groups sued the federal or the state courts UM on July fourteenth, you know, saying that UM, this is a violation of the ad A to have in person hearings and require them, and the court push back on that, saying that in person hearings you know, aren't aren't they could be UM, they could be moved to a virtual

proceeding if if that is something that the judge degrees upon. UM. But you know, public defender groups are are worried about us for themselves and their clients, and you know, they don't want their clients to be put in a position where they have to be called into court and potentially be put in contact with the of the virus in in the courtroom. And that actually followed another lawsuit from the Court Officers Union uh IN in New York, filed

the beginning of July. And that lawsuit also alleges that the state courts didn't provide enough personal protective equipment and didn't provide enough sanitation to prevent people from getting sick. UM. So there are some there's some legal action on this in New York already. UM. I haven't seen legal action elsewhere in the country, but UM, New York is is now. You know, we'll see how these cases UH go forward.

So what is this? What is the status of the courts in New York or any of them open yet? So the New York court system has been doing a garage suits reopening UM, and recently they started grand juries again and they are starting some in person operations, which was kind of the flashpoint for this lawsuit. That was when the public defenders wrote a letter to the New York State courts saying, you know, we don't feel comfortable

with this, and then later filed the lawsuit. But you know, New York courts have they were they were pretty pretty much completely virtual for a period of time and then gradually started moving back to these uh in person operations. How did they work it out? Do they decide before trial or before hearings what's going to happen? Or do they just call them into the courthouse if you know? Um, you know what? I I don't know that, um. And yeah,

that's a great question. Um. I think that a lot of these courts that it depends on the judge, it depends on the courtroom. UM. So it could be different case by taste. But you know, these are these are general orders and general guidance from the courts and the court system. UM. And I think that's what's being taken

issue with right now. I imagine that the court officers, a lot of the court officers aren't so happy to be back in person, and and that is the that is the other lawsuit here is the court officers, and you know, they're saying that, uh, they weren't provided with the right amount of personal protective equipment. Of course, the court disputed that they said, you know, uh, they have

provided tens of thousands of masks like loves and face shields. Um. But the court officers are saying that there have been union members who have actually died from this virus in New York and UM, you know that's the something that they're trying to prevent going forward, and something they're saying

that the courts had a hand in. What are the new safety measures that the courts have inced to you did so, there are plenty of new safety measures across the country to respond to the reopening and in person operations. One of the most common ones that we're seeing is requiring masks for people requiring social distancing. Uh So, North Carolina's Supreme Court required maps in all courthouses throughout the state.

It's also something that we're seeing very popular in federal courts. UM, for masks to be required in in public areas for for both courtgoers and for staff. Um. You know, there are also checks at the doors for courthouses, so they're they're testing people's temptsures, they're asking them some some health questions, UM to try to make sure that people aren't coming

into the courthouse that they have you know, fever. UM. And then there are also some courthouses that are shutting down when they have a case of the virus in the courthouse. This was something we saw early on. Several courthouses had court workers UM and and court officers who were testing positive for the virus. So the courthouse tests down, they have the General Services Administration come in and and

clean it out. That's the organization that helps the sanitation and administration of these buildings and UH it used to have them come in and help get the buildings ready for people to be there again. And we're seeing that again in in at least one area in the Northern District of Georgia closed its Gainsville courthouse on July fifteenth

after a court officer tested positive for the virus. UH. They said that that courthouse will will be closed until they can clean it properly so they can get people back in. UM. So what we're seeing a few different measures happening across the country. New safety measures. UH. You know, I think a lot of courts and people entering them are are concerned about these environments where people are pushed

together into the same room. And sometimes it's because they most of the time it's because they have to be there. It's not a choice. It's not like so many of these are the businesses we see where you can be there of your own accord. If you're in court, there is a matter that you have to resolve UM, and that's one of the major concerns for for courses that you know they are, they're dealing with a population that is forced into this environment. In your story, I read

that they're encountering some resistance from independent minded judges. Tell us about that. So in Georgia, UM, the Chief Justice Harold Mountain, received a few complaints that judges UH in the state had violated health or safety guidelines, and I

spoke to him. He said some of those some of those cases were true, some of them to him, didn't line up with what reality was UM, but he said he recognized the continuing issue that judges potentially weren't following guidelines UM or the percept and that they weren't following guidelines and so UM in an order on July tenth, he said, you know, we're going to make sure that people are following these safety guidelines for in person proceedings,

and he encouraged these of video conference as well. Um, and he extended previous orders uh to make sure that measures that were already put in place by the court were, um, we're still in place. So you know, that's the other issue with a lot of of course, is that judges are pretty independent in their own courtrooms and the decisions

that they can make. Uh. So making sure that all of those individual judges are are following these guidelines or every courtroom is addressing them the same is a challenge for courts. Thanks so much for being on the Bloomberg Laws Show, Maddie. That's Madison Alder, Bloomberg Law Reporter. It is essential that we have a clear breakdown of the number of citizens and non citizens that make up the

US populations. And President Trump is not letting a Supreme Court decision stop him from his goal of ensuring that undocumented immigrants are not counted in. After the Supreme Court blocked the administration's effort to add a citizenship question to the census form last year, Trump ordered the census Bureau to gather citizenship data from the administrative records of federal and state agencies. Not only didn't I back down, I backed up because anybody else would have given this up

a long time ago. The problem is we had three very unfriendly court That order is still being challenged in the courts. But Trump has already taken another step. On Tuesday, he signed a presidential memorandum to bar undocumented immigrants from being counted in the census, another move that's sure to be challenged in the courts on constitutional grounds. Joining EASi le On Fresco A partnered Holland and Knight, formerly the

head of the Jostice Department's Office of Immigration Litigation. Leon is this memorandum away for President Trump to get around the Supreme Court decision blocking the citizenship question. Well, the idea originally of adding the citizenship questions to the census was to try to in some way get at this question of who wasn't a citizen so that they could

be excluded from the census. And so now even though the citizenship question wasn't added to the census, what the Trump administration is trying to say as well, we have other ways of trying to determine who's here without status, and by using those other ways, I will then make an order that says I'm not going to council people towards the census. So does this presidential memorandum have the

force of an executive order? This does not have the exact power of an executive order because the difference between a presidential memorandum and an executive order is as an executive order has to be published in the federal register, and there's ways you can procedurally challenge it for not be done properly. The President is saying, is I'm not

making anything formal. I'm just issuing a policy memo that defines what a person is for the census as a person who is here with legal immigration status or a U. S. Citizen. It cannot be a person with undocumented status. And so he's just saying, that's just a policy memo that can't be then talaced in court, because I, the President, get power and authority to determine who a person is from the purposes of the centsive. Let's take the legal questions

first and then the practical questions. The Constitution says that House districts shall be based on the whole number of persons in each state. What have courts interpreted that to mean? Well, what the course of interpret that to mean is that there's a difference between person and citizen in the United States Constitution. And sometimes the United States Constitution uses citizen and sometimes they uses person. And so to use this person it means person. It means any human being without

regard to any sort of immigration statate. And so that's what the courts have met there. Now, you don't have to count people who are not subject to the jurisdiction of the US government. So who are those people? Diplomat people at the United NATed, people at the World Bank, the I M F, etcetera. So those individuals wouldn't be counted in the sensis, but other persons who are subjects to the jurisdiction of the United States government are counted

in the census. We've had Attorneys General California and New York say that this is unconstitutional. The a c LU has said, we'll see him in court. We won last time, We're going to win again. What would be the basis of a lawsuit against this memorandum? So there's two basics for the lawsuit. One is procedural and one is substantive. The procedural basis for the lawsuit is to say that you can't do this via presidential memorandum, because this is

actually a substantive change of the law. When you're defining who is a human being for the purposes of the census, you can't just do that in a policy memo that you just kind of whipped up in the middle of the day. It has to go through all of the formal rulemaking processes and have noticed the common and regulations, the things of this nature. It can't just be a

memo like that. That's number one, but then substantively that the legal claim made in the memo, which is that undocumented individuals are not subject to being counted even though they may have been here ten years, twenty years, thirty years in the United States and thus are domiciled here for the purposes of the census, that there's no legal basis available for that contingments. Do you think this is a slam dunk case for the A C l U

or the A G S. Yeah. I would be incredibly shocked if at the end of the day the plaists in this case did not prevail for the simple reason that when we want to talk about the context of originalism, back at the time of the Constitution, we didn't have all of these billions of different immigration statuses and who was a citizen, and who was a Green Guard older, and who was undocumented and who was in a transitionary status.

I mean, right now, when you look at all of this, there's hundreds of different immigration statusies and some are influx and some aren't. And so that's why the census uses the word person, and the person means person. And so if you're gonna take person to mean something else now after you've been doing it one way for hundreds of years, that that new interpretation excluding persons will not be allowed

to prevail. So let's look at this practically. Now, how would the administration actually determine the number of illegal immigrants in this country and in specific counties within the states. So this is actually a very interesting issue. There was all the way up till a document of the Department of Homeland Security would publish every year called Estimate of Undocumented Individuals in the United States, and the most recent one of those is about two years old. So that

wouldn't be an accurate town. The Sense of Bureau itself, through the ACS surveys, has also tried to estimate the undocumented towns. But what's also fascinating about this, it's almost impossible to do because people continually on a daily basis, and I'm not talking about one person or two people. I'm talking about tens of thousands of people every day go in and out of undocumented status because they might

have overstayed there visa by a day or two. They put in an application to fix this, this gets sick, or they put in an application to fix it before they were say but U S C I s A taken too long to renew it. So they're in undocumented status during the middle of the time while the application

is pending, and so it's uncalculable. All of this would have to be an estimate, and when you're doing this estimate, it is subject to wild deviations, which is why you have some of the restrictionist immigration groups saying no, these numbers are in the twenty million range, and you have the Department of Homeland Security of the Sense of Bureau say no, it's between eleven and fourty million, and others say no, no, no no, no, no, in fact, a lot

of people have returned to Mexico. And it's even less than that. The president's mental actually says, well, the president can just pick how many people are undocuments, And because of these wild deviations, that seems like the kind of thing that almost as too arbitrary for its own good. Even if the Census Bureau or the Department of Homeland Security could calculate the number of illegal miigrants in the country,

how would they administer this? The President would just say, Okay, this is the number for this state, this is the number for that stay right. The way the executive Order reads the way this would work is if California had a population of sixty million people, as an example, and then the Department of Homeland Security, along with the Census Bureau, were to determine that there was a population of three million undocumented people in California, they would just abtract sixty

by three and say, now California has fifty seven. But they'd also have to do it vias of each county. And I don't see how you can get to that granular level of data, because you know, the county formulas also matter in the senses as well, and not only are sad as this trans it, but people are trans the A two and so to get to that level of granularity, it's almost certainly throwing a dart up against the wall and just picking a number that the dark heads.

And so that's the kind of thing you don't want to do, Whereas it's much easier to just count how many human beings are in the United States of a specific side. I want to look at the political implications here, and a study last year by the Center for Immigration Studies, which is a conservative group, said that excluding immigrants would take three seats away from the Blue states and redistribute them to the red states. So there are real implications

of this count Oh absolutely. I mean the executive memorandum itself actually lays that out and says, excluding the words that uses is it says affording congressional representation and therefore formal political influence the state on account of their presence within their borders of aliens who have not followed the

steps to secure lawful immigration stidus undermine those principles. But what they're saying they go on to say that they don't want to reward state for basically doing things to encourage undocumented individuals to come into the United States and to be in their specific states. And so they are trying to say, we want to punish the states that are welcoming toward immigrants and reward the fates that are

not welcoming towards immigrants. After the Supreme Court ruled on the citizenship question, President Trump ordered the Census fuiour to gather citizenship data from the records of federal and state agencies, and a majority of states refused to share information about driver's licenses or I D Cards. That's being challenged in court.

Where does that stand right? That challenge is pending, And there was actually of news about that today where the court in the case that said, hey, this new executive order actually becomes quite important in these cases now because now we see that this wasn't just some requie for data.

This actually is being applied in this particular method. And so the court seems to think in that case that the new executive order seems to undermine the arguments being made by the government about needing this data, because if the point of this data was the acting service of this executive order or this presidential memorandum, the court did not even claimed to want to go in that rut, They're going to be lawsuits filed, guaranteed lawsuits filed. Will

this be put on hold? Will they be able to get temporary restraining orders to put this on hold as the case is proceed My understanding is lawsuits will be filed next week in New York and in California, and in one of those two courts, if not, both will likely put a temporary restraining order on this, and then

it will work its way up the court. And then the question is will the Supreme Court rule in order to make sure that the count is decided with or without this issue, or whether Supreme Court just denied third and say look where we're done with the census issue and move on. And so that's that's what we wait to see. But but we should have some clarification one way or another from the Supreme Court regarding its interest

in this matter. I would say, before the beginning of the fall, how long does the Census Bureau have to

actually complete the census? So the completion of the census now because of COVID has been delayed till the end of September, and then after the end of September, then it's planning on going through a process between October and April, the process of portunment counts and redistricting data, and then they planned to deliver that nfortunateate count to the President on April thirty, which basically needs If the president is not Donald Trump, then none of this will matter anyway.

But if the President is Donald Trump, then Free Court has to basically decide by April should that apportionment counts include undocumented individuals or not include a documented individuals. Thanks le on exile on Presco A partnered Hondon Knight. I'm June Grosso and this is Bloomberg