Justices Grapple with Texas Abortion Law

Four of the Justices, Stephen Bryer, Elina Kagan, Sonya Soto Mayor, and the Chief Justice John Roberts, had already voted to pause the law before it went into effect, and Justice Kagan was the most vocal critic of the law, arguing that its purpose was to get around the courts earlier rulings about who can be sued to enforce constitutional rights. And essentially, we would be like, you know, we're open for you're open for business. There's there's ah, there's there's

nothing the Supreme Court can do about it. Guns, same sex marriage, religious rights, whatever you don't like, go ahead. And it came as a bit of a surprise when Justice Brett Kavanaugh signaled he agreed with Kagan. What are you saying, absent that uh, that Second Amendment rights free exercise of religion rights, free speech rights could be targeted by other states in this using the ex part a young uh language on one sixty three, and to really

infringe those and to put huge penalties. To the Chief justice hypothetical say everyone who sells an a R fifteen is liable for a million dollars to any citizen. My guest is Leah Littman, a professor of constitutional law at the University of Michigan Law School. Tell us about what you saw as some of the major concerns that the justices voice, so their concerns they had for both sides. On the plaintift side, they were concerned about the prospect

that plaintifts could sue judges and kirks. In one moment, the Chief Justice said to the advocates, you know, you might understand our hesitation about allowing people to sue judges. You know, they are judges themselves, and that's just not

kind of the ordinary course of this litigation. On the other side, to Texas, several justices indicated a real discomfort with the prospect that states could nullify disfavored constitutional rights and essentially undermine the Supreme Court authority to decide whether state laws are constitutional. Justice Kagan argued that Texas was making an end run around the Supreme Court precedent, and it would be inviting other states to try to flout

other precedent. Justice Kavanaugh talked about a loophole that's being exploited here. So did he seem to suggest that the Court should close up the loophole. So I don't think it is a loophole for the Court to close up so much as a structured state law that no court has ever really confronted, or at least the Supreme Court

has not. That is, no state, as Solicitor General Elizabeth Prelocker said, has ever done what Texas has tried to do, namely, to box out the federal judiciary entirely from enforcing its decisions recognizing a constitutional rights. And so the loophole that Texas exploited was just the general rule m the Supreme Court's decisions that you ordinarily do state executive officials who

have some connection to the enforcement of a law. And what Texas did is it tried to remove all state executive officials from the enforcement of this law and therefore remove any possible defendant that the plantifts could do. In order to prevent this law for being in effect. It seemed like Justice Coursage was pushing back on that and kept asking, you know, have you ever done this before? Has there ever been a suit like this before? Has

there ever been an injunction like this before? Does it seem as if some of the conservative justices were looking for ways to validate that. Yes, I think that concern just doesn't account for the fact that no state has ever tried to entirely boxed out the Supreme Court from enforcing a constitutional right that the Supreme Court has recognized and that the Supreme Court, at least in the here

and now has said continues to exist. And so the other justices just didn't seem bothered by the fact that there hasn't been a similar kind of lawsuit to this one. Chief Justice rock I think Justice Elena Kagan and Samuel Alito referred to this. But Chief Justice Roberts said that the authority the US was claiming and bringing its lawsuit was a limitless, ill defined authority. So they were questioning whether they're ruling if there was a ruling in favor

of the justice to par could it be limited appropriately? Yes, So one question was when if ever, should the United States be allowed to do a state under circumstances like this one um Given that a premise of the United States lawsuit was that Texas had attempted to insulate its law from constitutional challenge in the federal courts, their questions were, well, what other kinds of laws that might be insulated from challenges in federal courts? Could the United States also do?

Did it seem as if, at least at the beginning of the argument that Justice Amy Coney Barrett, she was making an argument that this law would not allow abortion providers to make a full defense in state court if they get sued. So there was this some of the justices saying that state court could take care of this. Yes.

So part of her point was responding to a question from Justice Alito, which is, why isn't it sufficient that if abortion providers are sued, they could just say this law is unconstitutional and air the constitutional arguments in that way?

And Justice Bara's point was that wouldn't actually solve the constitutional problem given that Texas has limited the provider's ability to assert the constitutional defense in these SPA lawsuits, and also Texas has made it so these providers can just be sued again and again and again, and so merely succeeding in one lawsuit isn't going to solve the problem, which of which is you could possibly be sued in

future cases. Did it seem to you as if on the conservative side, Justice Alito, and perhaps on the liberal side, Justice Kagan, they were both trying to make out and clarify the arguments for the conservatives in Aldo's case and for the liberal side in Kagan's case. I think that some of Deffice Kagan's questions were definitely designed to do that. That she wanted to know from the Solicitor General under

what circumstances the United States could bring suit. She also wanted to know what the Solicitor General thought should happen with the United States lawsuit if the Supreme Court allowed the provider's lawsuits to um continue and air the constitutional arguments against SP eight. I don't think Justice Alido was trying to do the same that as I think his questions were much more designed to advocate for a particular position than to clarify the position and to advocate for

the position in favor of the law. Yes, there's a brief and support of abortion clinics that was filed by Second Amendment advocates. Justice Kavanaugh questioned Texas over the prospect that they could use this kind of law against other things, including gun rights. I think the fact that plaintiffs in lawsuits for more favored constitutional rights argue that the Texas scheme should not be able to foreclose judicial review helps the justices to see that this Texas scheme isn't about

or limited to abortion. Instead, the justices wanted to know whether states could use the scheme to undermine religious rights, whether states could use the scheme to undermine gun rights, whether states could use the scheme to undermine contraception, whether states could use the scheme to undermine numerous other constitutional rights. And that question was definitely indicating that concern lurking in

the background is Roe v. Wade. And did it seem as if any of the justices sort of acknowledge that it was a constitutional right that's in jeopardy. So Justice Alito was most explicit in acknowledging that Row and Casey

are in jeopardy. So he asked whether the provider's decision not to perform abortion was not due to spia but was instead due to the fact that the Supreme Court was reconsidering Rowan Casey in a case this term the challenge to the Mississippi statute restricting abortion more than fifteen weeks after a person's last period. Justice Corsage, I think was the one who said, you know, you're seeking an injunction against the world. I think that was actually the

Chief Justice. Okay, so what about that? Who who would be enjoined here? Well? I think the question was about who exactly this injunction extended to did extend to every private individual who might bring a lawsuit under sp A. The Solicitor General clarifies that their position is that the injunction extended to state court judges, state court clerks, as well as any individual who actually brought a lawsuit, so

they were not seeking an injunction against the world. Um, but I think you're right that the uncertainty about who exactly this injunction should apply to all is because of the novelty of this law. It makes it no longer possible to do the ordinary state officials who plantiff typically stew in these cases. They could rule in favor of the abortion providers, or in favor of the federal government or any which way on combinations of those, did you

think that one suit held up better than the other? Um. I think it is possible that the provider's lawsuits is more likely to proceed. Just the justices seemed to be more sympathetic to the arguments from the providers and view that case as a more straightforward extension of existing cases than the lawsuit by the United States. What do you think about the new way these oral arguments are going, which seemed to go on and on and on. To me, it's not as in much of a hot bench as

it used to be. The justfices are certainly interrupting each other less and interrupting the advocates Blessed. I think that is partially just a product of the fact that they got off a year in which they were just questioning people feriata, that is, not asking questions. At the same time, it's possible that we will revert more back to the previous format as additional time passes, But I do think this is a new norm. The last time case was heard this quickly was Bush Fie Gore, and the decision

came down the next day. Are we expecting uh fast decision here as well? I am certainly hoping, and I would have been the Franks are hoping for UH decision quickly because every day that passes. You know, this lower isn't a fact that I had not worked care individual. So I think people are hoping that the court will act quickly, but no one knows. Thanks for being the Bloomberg Lasso. Leah. That's Professor Leah Littman of the University

of Michigan School. A federal jury has decided that a private prison operator must pay more than seventeen million dollars to immigration detainees who were paid one dollar a day to perform tasks such as cooking and cleaning at the company's for profit detention center in Washington State. The jury also determined that Geo Group must pay its detainee workforce minimum wage. Joining me is Leon Fresco, a partner at Hollandon Night. Leon, Have you ever heard of a verdict

on similar grounds? No, In fact, I was a first of its kind litigation. That's still a legal issue that I think you're gonna expect to see go all the way up to the Supreme Court because it's a bit complicated. There is a federal appropriation blow from the nineteen seventies that says that individuals in immigration detention should be given

one dollar a day to engage in voluntary work. And then there was this Washington lawsuit that talked about, well, that's still violating a bunch of different laws, including in this case, the one that prevailed was the state minimum wage laws. And so you ended up getting this big verdict that the work violated the state minimum wage laws.

And so I do think this case isn't going to end without it getting to the Supreme Court, because it does implicate a lot of other federal versus state interests in terms of, well, why camp federal prisoners also be given this option of of of getting minimum wage under state laws. And so the complication is, well, this has sort of been done that way because the contractor is operating the facility, but contractors operate all kinds of facilities,

and so it is a fascinating legal issue. It's right there in the interstases of is it right, is it wrong? I mean, there's just a lot of interesting debate about it. And so while while I do think this verdict is very substantial and it definitely sends a major message, it's not I don't think the last word, I think there's still a lot of litigation to go. They might prevail in the Ninth Circuit, but then the question is they get to the Supreme Court. Work would the Supreme Court

be there? And it sounds like a lot of money. It is a lot of money, but per person it doesn't come out to be that much because there are think are people in the class. Yeah, well, I think

here's the issue. It's not a lot of money per person, that's correct, but it is prohibitive from the standpoint of what happens if people at these facilities and the operators of the facilities are forced to pay actual minimum wage to the individuals who are doing Because the idea of the voluntary work is that it prevents sort of idol't tie in the facility. It does that the contractors actually need the people in the facility to do the work.

They don't, but it's the dea is you get people working and something that they're doing, and so they're not idle in the facilities. And so the question is that if you have to pay for that voluntary work, what's going to happen is the contractors are just gonna provide it and they're going to just give it to other workers instead, not to the not to the people in the detention facilities. And so it will have a couple

of effects. Number One, it will it will move the workout, So yes, it might increase some some jobs to people who aren't in the facilities, but it will also create this idleness in the facility, which is what was this was trying to avoid in the first place. But it certainly it won't moving forward allow people in these contract facilities to get paid minimum wage to do work at the facilities. That that's not going to be the response to this if this actually ends up being what happened

moving forward. Let's talk about remain in Mexico, because this is a policy that the Biden administration didn't want to continue, and the Department of Homeland Security issued a new memo terminating it. Where does that stand, Well, here is where it stands. On October. The bid administration has said, we know that there's a court injunction that forces us to continue this Remain in Mexico policy, but we are going to nevertheless try to provide another justification that will convince

the courts to get rid of its injunction. So that we actually can terminate the Remain in Mexico slash Migrant Protection Protocol policy, and so they actually, I mean, you read this thing. It's incredibly invested thirty nine blog, and it goes through all of the different justifications of why the Biden administration thanks to Remain in Mexico policy won't work,

and it goes through access to council problems. And notice the hearing problem, that people are unsafe at the facilities where they are met Togo, that the US government really can't do anything to create faith facilities in Mexico because we don't have jurisdictions the police these facilities in Mexico, and to keep people saying if it is of course a sovereign country, the fact that people miss their hearing, the fact that it causes people to keep re entering

over and over again because they want to see if they can get themselves up from under this Remain in Mexico policy, and the fact that it would require huge investment in Mexico in order for Mexico to continue to allow this, which was not the case during the Trump administration. So Leon, who will decide whether or not the administration's

memo can go into effect. The question is in the end, is the Northern Disference of Texas going to agree that this meets the standard for not being an arbitrary and capricious revocation of the remaining in Mexico policy and finally allow the Biden administration to remove the policy, or will they say Nope, this is yet again arbitrary and capricious, because there is no justification you can give us for

removing this policy. This policy from a purely immigration enforcement perspective, makes sense to us, and that what you should do is either detain every single person who comes to America while their proceedings are pending, and if you can't maintain them, have them weight in Mexico. But no one should be allowed to just walk in and be free within the United States while their court case is pending, because there's too much of a likelihood that they won't show up

the court. That's what the judge said last time. And so I don't know if the judge is going to be convinced by even this thirty nine page justification that anything should change from that basic view of the world that the judge has that why would you get rid of this policy? You know, there's just the the the the No matter what you think of abut humanitarian concerns, those those are of little concern to me as a judge because I'm looking at this purely from an immigration

enforcement angle. So I don't know if the original District court judge will change, But the question is will the Fifth Certain or the Supreme Court change and say, look, even if the immigration enforcement argument isn't great, all of these other things about the humanitarian costs and the resources and other things are sufficient for an administration to change

the policy. Otherwise an administration will never be able to change any policy no matter what, because as long as one judge thinks it doesn't make any sense, that will be the end of it. And so that will be a very interesting debate to see. Moving forwards, what strikes me is this is a policy put in place by the Trump administration. So it should be a policy that after an election the Biden administration can change. I mean, can the courts force administrations to retain old policies that

they don't believe in? Right? I mean, this is what we're gonna see. We saw this in Data to be fair, where the Trump administration tried to get rid of DACA, and Justice Roberts was the deciding vote. Thing, look the way you try to get rid of DACAS arbitrary and capricius. Try again. And then we never got to litigate the second round of that. Trump was voted out of office, and now we're litigating whether doctor is legal or not.

That's the whole separate issue. But that will be an issue that will work its way up to the Supreme Court. But now on the flip side, we're seeing this, which is Trump's version of DACA was the remain in Mexical policy. And so the question is will there be five justices on the Supreme Court and say, hey, just like DOCCA, guess what, we don't think there's any way that you

can terminate this remain in Mexical policy. That is an arbitrary and capricius because if we're looking at this purely from the immigration enforcement angle, and why would you allow any human being to be able to just walk into the United States, And that's what you're essentially doing if you don't have this remain in Mexico policy. And so

that's the perspective. If you're looking at it from that pure perspective of that, then there's no justification that's going to overcome that if you're viewing it from well, but in Mexico, people are getting a beaten, they're getting a view, there's no way to secure the facilities, they're not getting counsels to show up for the earring, so everybody's losing their case. People don't even know where they're hearing is,

so you can't even get them. You know, there's tons of justifications that they give it that are all very powerful, but none of those have anything to do with ending a legal immigration so to speak. And so that's the question is will any of these other sort of human human first or humanitarian justifications be sufficient to overcome the the pure immigration enforcement reason why this was allowed to remain in the first place. But there are a couple

of differences between DHAKA and remain in Mexico. One the reliance interest that the dreamers have had for years on the policy. But also are the Court's going to tell Mexico what to do? And so suppose Mexico says no, no, we won't. Absolutely, I mean, those are two huge differences, as you point out. One, the reliance interest in DACA was something Justice Roberts specifically bided as one of his reasons for I think this was an arbitrary and comprecions

withdrawal of Dacca. And there isn't necessarily a reliance interest here, although maybe the state of Texas would say, well, we were not being uh faced with so many people coming in without sattist. Now we are, and so now you know we have to change our budgetary plans or whatever. That's not going to be the same kind of reliance interests, Docca.

And so you make an excellent point there, and then from the from the standpoint of the Mexican government, and you're not gonna be able to hold the Mexican government in condemned. So the question is, are our courts really prepared to hold the DHS secretary and other DHS officials in content of court if they can't force people from

other countries, not Mexicans. These are people from Central America or Haiti or Ecuador or other places to go back into Mexico above Mexico's objective, Our courts really going to intervene in foreign policy in a way they were they you know, for two hundred years I've said they can't do and won't do. Uh If this oneted, and that's really going to be the question is it at the district court again or is it up at the Fifth Circuit.

So there's two parts of this litigation. So the first one on the injunction phase is finished and now they're going on the merit phasing in the Fifth Circuit now trying to say on the merits, this first termination of the Migration Protection Protocol should be taken away. That litigation continues. Now there's Memo two and Memo two. So Memo one, litigation on the temporary injunction stuff has been upheld, and Memo one has been stricten and and remain in Mexico

staves in place. But they're doing the full merits briefing now in the Pittcier case. In that case, now in the second issue Memo two, well, Membo two has to start again with the Northern Districts of Texas court and work its way up again all the way up to the Supreme Court. So there's both phases of litigation litigating

Memo one, litigating Memo two. To another immigration story, the Wall Street Journal reported that the Biden administration is looking to settle with the immigrant families who were separate from their children. During the Trump administration, the administration is reportedly considering paying as much as four dollars per person. That seems like a lot of money. Yeah, I think here, So let's start with it. Let's start with Obviously, any

person who's reading a newspaper article is extremely confused. What are we doing here? Should people be getting money for having come across the United States border without lawful status? Because at the end, the argument goes, if somebody is drunk driving and they have a child in their car, they don't keep the parent who's drunk driving and the child together. They put the parent in jail and they put the child in and protect the services. So why

can't you do the same thing here. So that's the argument, and certainly the Biden administration could if it chooses to litigate this a course all the way through. Now here's the thing. You have many, many families going through this situation, and they're all in separate cases, and so all you would need is one big verdict in one of the chords in order for potentially not be able to settle these cases globally. Because you've got one big verdict of

that encourages other of these groups to go forward. The question is, well, will the Supreme Chord actually allow this kind of claim to move forward and why shouldn't they at least try that, And that's a legitimate argument, But I mean, you do have a lot of fact based claims here about the government knowingly I mean you had watch dogs say this, knowingly put forth these policies knowing that there is it going to be a way to keep tracks of the children who are separated from the parents,

and that there would be this massive harm that would take place. They were warned about all of this by people like Jonathan White from h H who was the person in charge at the time of the UH Settlement of Children, and he had said, I don't want to go along with this because it's going to cause all of this tropics. We won't be able to keep track

of the kids. And so once you move forward with that, it's maybe not something that even the Supreme Court can overturn as a factual basis because the government isn't allowed to endanger children knowingly. Regardless of what the reason is, whatever your law enforcement reason is, you still can't knowingly endanger children. And if if a factual finding is made that that's what happened in this case, then the only issue will be about managers, but it won't be a

legal issue anymore. But that's the legal issue, and that's a separate issue about whether politically it is wise to engage in these settlements, because of course you have massive political ball dot from the simplistic arguments that why would anyone pay people here without saddest for just enforcing the law, and so man that's the who nobody wants to be in the middle of. Thanks for being on the Bloomberg

Law Show. Leon. That's immigration law expert Leon Fresco, a partner at Hollanden Night And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news, honor Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, or at www dot Bloomberg dot com, slash podcast, Slash Law, and don't forget to catch The Bloomberg Law Show every week night at ten pm Wall Street time right here on Bloomberg Radio. I'm joom Boso and you're a list