SCOTUS Rules Immigrants Can Be Detained Indefinitely

like Stephen Bryer, expressed concerns about indefinite attention. Everybody gets bail hearings that you're going to detain for a significant amount of time every criminal case, debtors used to in debtor prisons, Mental people being confined in hospitals have the equivalent where you're going to day a person, not even a criminal, you know, for months and months and months. Why aren't they at least entitled to a bail hearing.

But severalice has suggested the proper procedure would be for the immigrants to file a habeas corpus petition, where a judge would decide the issue. Here are Justice is Neil Gorsch and Amy Coney Barrett, I did not understand Mr Reyner to contest that a habeas petition seeking relief on a constitutional ground could be entertained by this court on the basis that um detention has lasted too long without

sufficient explanation. You know, if you're bringing a habeas action, you do have a judge, so you have a truly neutral, uh decision maker as justice of course, just suggesting not someone who's a member of the executive branch joining me to sort through these decisions. Is Leon Fresco, a partner at Hollandon Knight and formerly head of the Justice Department's Office of Immigration Litigation. Leon, were these decisions a one

to punch for immigrants and immigration advocates? Absolutely due, there was that only a very difficult day from the standpoint that the immigration law. I would say, if you were looking at it during the period of somewhere between two thousand and nine and two thousand and fifteen two thousand and sixteen, both of these cases would have been decided

completely the other way. And now the Supreme Court has changed and the ethos has changed, and now you not only have these five four decisions, but you actually have decisions with liberal justice assigning onto them that are sort of cracking down on immigration lawsuits. And from that standpoint, it's a whole new, completely different world than it was before. One case was unanimous and Justice Sotomayor wrote the majority opinion. The other case on class actions was split six to

three down ideological lines and Justice Soto Mayor dissented. We don't often see Justice Soto Mayor writing a majority opinion in immigration cases. Well, it's certainly unusual in this court, and it's certainly in usual in a case where it's restricting rights of non citizens who want to file lawsuits.

If you would have had some sort of wager in a casino to three years ago, that Justice sort of Mayor would have written a decision making it more difficult for non citizens to have a right to be released from detention. That would have been like seven to one odd And now you have such a decision. And so really this was a tough day for the advocates in the immigration world. So why because we hear her voice in the second case where she's an advocate for immigrants.

Was it because of the text of the statute in the first case in this detention regime, nothing anywhere in the statute talks about bob hearings and burden of proof and anything else. So if the Court was being asked to make a decision, does this statute actually require bond hearings. Does this statute actually require the burden of proof to be on the government. It's not intellectually honest. You can't look at a statute book and read any of that

because none of that's in there. So it seems like in that context, the liberal justices gave in and said, look, this might be a place where we might want to build some credibility and some bipartisanship and come together and

say the statutory regime doesn't work there. I do think that's the intent, because otherwise I don't think you would have seen this decision because the path of where these decisions were going sen were in giving expensive rights to non citizens to have bomb hearings, and now here in this case, what the Supreme Court is saying is we are going to make people who are in detention for extended periods of time go through the process of either

hiring a lawyer and filing a federal habeas corpus petition, or they'll have to figure out how to do it themselves pro sed to file these federal habeas petitions. But we're not gonna just skip that step and make it easier by sort of presuming that in six months you get a bond hearing, because the statute doesn't say it. And so if the statute doesn't say it, we can't as a court start adding things that aren't in the statute.

That aren't in the statute. It sort of makes sense from a literal point of view, but from a practical point of view, what it's doing is is it's putting a lot more onus on the foreign national who's detained to either get a lawyer and have to file a federal habeas complaint, which is pretty hard and work intensive, and it's either expensive or you've got to find some pro bono organization that has resources, or you're gonna have to figure out how to argue your own federal court

habeas petition in order to get yourselves out of indefinite detention. And so that's the impact of that decision. And we have to back up a little here explain the first decision,

the facts and what's going on. Right, So what happens in this Artiaga Martine cases as follows, you have individuals who have actually been deported from the United States and then they come back in and they say, during the time that I was deported and now that I'm coming back in, something has happened whereby I'm now eligible for relief from deportation because I'm going to be persecuted in

the country that I'm fleeing. Now, those people can't get asylum, which is a relief that gives you a path to citizenship, but they can get something called withholding of removal, which says you can stay here in limbo until your country has better conditions than what it has today. But what happens is if you re enter after you've been deported, you are to be detained in the statute for as long as it takes for this proceeding to take place.

And so what was happening is for some people, they were being detained for so long that they started filing habeas complaints and for the real court saying that they should be entitled to a bond hearing, and that that bond hearing should determine whether they are actually someone who is going to be dangerous or is going to be a flight risk, and if not, they should be released.

And so there was actually decisions from the Third Circuit and the Ninth Circuit saying, look, we don't want thousands of these habeas decisions coming to our federal courts, so we're just gonna make up presumption that after six months you get a bond hearing, meaning the government just has to give you the bond hearing after six months, and they have to decide whether you are a flight risk

or are dangerous. And the government appealed these decisions, and what the Supreme Court said is, look, there's nothing in the statute that talks about any of this. This is literally all made up by courts. We get white. Courts are making this up because it's a convenient thing to just say, in six months, we don't presume that you'll have to file a federal habea is and it will be done on a one by one basis. Let's just make this class wide and simple and after six months

you can just get automatically a bond hearing. Yes, it would be much simpler, easier to use framework. But the Court said, none of that is actually written anywhere, and so courts can't make it up. And so that's why the foreign nationals in this case lost. Let's talk about the second case, where it becomes more difficult to challenge immigration policies in court because you can't do it based on a class action. So tell us about the second case.

What happened there. In the second case, it's basically similar facts where you have people coming in from Mexico who are detained again after re entering the United States, and they're making basically the same claim again that they're entitled to bomb hearings after six months of detention, and they're trying to do it as a class as opposed to

one person trying to make precedent for themselves. They're doing it as a class so that they can basically get a nationwide decision that would say, nationwide, everybody going through this process gets a bond hearing if they're still detained after six months, if the government hasn't figured out whether they're going to give them this relief or not after six months, they can't just keep them detained forever. They have to give them a bond hearing after six months.

And so, in addition to the merits of this claim, which we talked about two seconds ago, in the other case, the Johnson versus Artiaga Martinez case. This case, which is the Garland versus a Lamam Gonzalez case, was again one where in the lower courts they said that class action relief was available, and the Department of Justice appealed this, and this was the Trump administration appealed it, but the bid the administration kept the appeal going, meaning even they

wanted to get rid of these class action lawsuits. And what really came to bear is a statute which actually says, it's called a USC Section twelve fifty two, that federal courts do not have jurisdiction to enjoin or restrain the operation of provisions of the I and A, and it gives a list of them. And so then the question is, well, does that mean then that they can't they can't enjoin that.

And so this was literally a huge semantics debate, which is the people who wanted to have this ability to do class wide injunction said, yes, of course, you can't enjoin a statute if that's the actual correct reading of that statute, meaning of course you can enjoin an illegal reading of the statute. What this says is you just

can't enjoin a legal reading of the statute. So I still get to enjoin any statute that's illegal, and what the majority opinion said and what the government said, and what the people who prevailed said said, no, no, no, no no. This means you can't even attempt to get an injunction of the statute. It doesn't matter whether the statute were debating whether it's legal or not. You're doing

something extra there. What this is saying is we don't even have jurisdiction to try for an attempt to determine whether that statute is legal or not legal on a class wide basis. What has to happen is an individual person has to make that claim. And great, if they get all the way up to the Supreme Court and they get a decision saying something, well, then that will

be the way that that applies nationally. But otherwise that decision will just apply to that one person, or it might apply to that circuit if it goes to the Circuit Court of Appeals. But you're not going to be able to get a nationwide injunction of certain statutes in the I and A by doing a district court nationwide class action trying to enjoin the detention and deportation provisions of the I and A. So in this case this

was six to three down ideological line. Justice Son wrote the descent and said, I respectfully dissent from the courts blinkered analysis that elevates piecemeal dictionary definitions and policy concerns

over plain meaning and context. I mean, she was basically, very powerfully trying to say that, at the end of the day, if you have an illegal version of a statute, there's no way that you can write a statute that prevents an injunction of an illegal version of the statute, and that the court was taking the way the statute was written to literally and saying that the Congress can can literally ban jurisdictionally any lawsuited immigration in any manner

in which it is written. And what justice sort of mayor was trying to say, what the descent is, No, that's not true. There's no way you can ban lawsuits into trying to say that a statute is illegal. Now, what's a very resting flip side to this case, and now we're gonna see whether these are consistently held beliefs by the court or not. Is that a lot of the lawsuits are being filed by the state of Texas and by other states are trying to do the exact

same thing that these lawsuits were trying to do. So either they're gonna now come up with some post hoc rationale why the State of Texas can keep going and filing their own lawsuits that are not individual immigrant lawsuits challenging certain statutes, or all of those are going to be dismissed too, which will mean that the Biden administration for now and then some other administration later we'll be able to have carte blanche interpretations of how they want

to administer these statutes. So that's to me going to be the most interesting part to see is are we going to start seeing courts bending over backwards to try to distinguish this, or is this literally gonna shut down all of these lawsuits where people are trying to make programmatic changes to immigration in cases where there is not an individual immigrant whose rights are at stake, So then this might apply. We might see this in the remaining Mexico case, which the court has yet to issue the

decision in. Absolutely, we could see this in a bunch of cases, and we're gonna have to wait and see how this court wants to apply that, and how lower courts want to apply that, because what this is saying is basically there's a subset of statutes and they involve the detention and removal of non citizens. And what this is saying is in those statutes involving the detention and removal of non citizens, you've got to do that within the individual case of a non citizen. And by the way,

that doesn't mean you can't get national application. You can. But what has to happen is in order to get national application is it has to go to the Supreme Court or if not, you'll get circuit court application or district court application. But what you can't do get a nationwide class action that's done in one district because you had a class action certified. It has to be done

in an individual case. And so what that means for the State of Texas and all these other places is they don't have individual immigrants going through cases at all, and so it will be very interesting if they will have any jurisdiction to be able to challenge these statutes or these processes that also deal with the tension and removal that they don't like the way the Biden administration is operating the tension and removal or will they be kicked out of court as well. That's going to be

very fascinating to see. Well, this decision have a lot of repercussions for immigrants and immigration advocates to challenge immigration

policies in court. That will slow down the process in cases where there's a new policy that's announced on enforcement and instead of being able to go to one court get a nationwide injunction, you will actually have to find immigrants suffering and then go to all of those different courts where immigrants are suffering and try to get rulings in those circuits so that it doesn't apply in those

particular circuits until you go to the Supreme Court. So that's going to be the big change, And then the other big change will be what about it no immigrants are suffering at all? So, for instance, what if you're the state of Texas or the state of Louisiana and you're trying to file a lawsuit? Will you be able to actually do it since you're not actually representing anyone

that's going through the process. And so that's what's going to be fascinating to see, And we'll find out soon in two to three weeks before the term ends, Leon, stay with me. Coming up, we'll discuss a case the Supreme Court throughout where some Republican led states were trying to take the administration to court over its recision of

the Trump Public Charge Rule. You're listening to Bloomberg in the Biden administration engaged in some legal gamesmanship in rescinding a hot button Trump immigration policy, the so called public Charge Rule, and then drafting its own rule without following

administrative law procedure, leaving a tangled legal aftermath. Arizona and other Republican led states took the administration to court over the rule change, and during oral arguments, Supreme Court justices across the ideological spectrum appeared annoyed with the Administration's legal maneuvers.

Here are Justices Samuel Alito and Elena Kagan. I congratulate whoever it is in the Justice Department or the Executive branch who devised this strategy and was able to implement it with military precision to effect the removal of the issue from our docket and two side step notice and

comment rulemaking. We shouldn't be green lighting that behavior for your administration or any other administration, all right, and and and and on that assumption, what should be the remedy because it just seems as though you're here and saying, you know, you can just tell us to go home, and and and nothing's going to happen to us, and everybody will just do it the next time. This week, the Supreme Court appeared to throw its hands up and

dismiss the case. I've been talking to immigration law expert Leon Fresco of Holland and Knight. The decision was one sentence long and said the states petition seeking review was dismissed as improvidently granted, so basically saying we shouldn't have taken this case in the first place. But do we

know why they dismissed the case. There's basically a pretty good indication in the two paid concurrent where Justice is Robert Thomas, Alito and Gores that actually explain in their ears why they think this case needed to be sent back. And that is because at the end of the day, there were too many issues that were wrapped up around this case. And one could see that during the oral

argument where the justices were all over the place. So just give you some context, this was originally a case about whether the Trump public charge rule was legal or not. And there were a bunch of courts that that it was legal, and there was only one court that it wasn't legal, and the Supreme Court that actually let that

public charge rule go into effects. But then what happened was the President Biden reversed the public charge rule and said, there's this one chord that says in Illinois that the public charge rule is the legal We agree with this one court in Illinois, so we're just going to not use the Donald Trump public charge rule. We're going to

acquiesce in the decision of this Illinois court. And so now when the states tried to intervene in that case so that they could say no, no, no, that ruling is incorrect and we should be allowed to move forward, the court was sort of all over the place because they said, well, wait a second, now there's a new Joe Biden public charge rules. And so there's issues of muteness, there's issues of standing, and all of these other things. So there are so many and none of them were

the one about whether states can intervene. That the courts to forget it. Let's just start from scribe here, since there's a new public charge chool and if the state wants to sue on this new public charge rule, they can go ahead and do that. So then this doesn't have anything to do with whether states can intervene in a case like this. Well, the original reason for granting surgery in this case was whether the states could intervene in challenging what President Biden had done, which was to

acquiesce to that one district court decision in Illinois. But what the court said is so much has happened since that that now this case is all over the place. Now Biden actually changed the rule. So what difference would it make if we allow them to intervene, Because what are you left to do about if the rule has already changed. And so what they all agree to is, look, let's just dismissed this case and move on with our lives. So does this give the Biden administration or any other

administration a roadmap for the future. So it's a rare situation because it could only happen in the exact situation like this, where what happens is somebody sues and you just accept the decision you want to accept. So yes, you could actually do that always. You can always accept a decision from a court that you like and then just do that instead of reversing a regulation by notice

a comment. The only difference is that usually in those kinds of lawsuits, the States would have had an opportunity to intervene from the beginning, and if they don't intervene,

then it's going to be their fault at bat the end. Here, the problem was because those lawsuits were being defended by the Trump administration, the States felt no need to intervene, and so it was only when Biden got elected and acquiesced that is much much later, that the States came in very late in the game and tried to intervene and resuscitate this case. And so that's why the courts are saying this is so unique and kind of like a unicorn set of fact. There's no need for us

to really get involved in this. Thanks so much, Leon. That's Leon Fresco of Hollandon Knight. The January six Committee focused at the last hearing, they kind introducing evidence of pressure and former President Donald Trump put on his Vice president Mike Tense to delay or reject the certification of Joe Biden's election victory continuing to make its case against Trump. Joining me is Attorney Jordan Strauss, Kroll Managing Director and

Kroll Institute fellow. Give me your general impression of the hearings to this point. I think my general impression is this was, in fact, the most complex investigation in history. And we've heard that from everyone involved in it. We've seen it from the committee's activities, you know, over a thousand interviews in eighteen months. I'm personally just bulled over by how much they were able to get done and

what really is a relatively short amount of time. Um and by the way, and I think that's sentiment shared by the Attorney General and the Deputy Attorney General, who you know, between them were on Enron and the Federal bombing right to the most other most complex cases in history. I think it's really hard to conduct very very complex investigations. You know, we do this for businesses all the time,

and it's it's tough. And what's even harder than running the investigation and finding the facts is explaining the facts. And I think the Committee has done a very compelling jobs so far explaining in pretty simple terms the findings from this really complex investigation. City. Remember, Jamie Raskin said on CNN, I suppose our entire investigation is a referral of crimes, both to the Department of Justice and to

the American people. What did you see in the presentations that you would consider a sort of pitch to d o J to prosecute Trump? So on that it is clear that the Justice Department is listening and watching. We know that because Attorney General Garland said that the January six team is going to be watching very carefully the hearings, and because instead he will be watching very carefully the hearings. The number of statutes that could be in play are

pretty large. Uh. And again, the facts are so so complex. I think it's hard to stay until they've closed their case and until they've finished presenting information. Who could be charged with what? And I think it's also very important to remember that the standard of proof in a criminal

case is beyond a reasonable doubt. You know, when I was at the Justice Department and working on complex investigations, I can say that the level of certainty not just of guilt, but also that guilt could be proven to a jury beyond a reasonable doubt for a prosecutor before they before they move forward needed to be a hundred percent in the minds of the prosecutor, even though that's not the legal standard, right, it needs to be that high before they move forward. When you're dealing with very

old statutes here. So if you look at like seditious conspiracy, there's only really a handful of examples. Some of them rise into constitutional levels in the last fifty years. I'm not aware of a single case where insurrection, where the crime of insurrection was charged in the last hundred and fifty years. Right, So you're dealing with really complex statutes that have really close adjacencies to core constitutional freedoms. Right.

It's okay to publicly disagree with the court case. It's okay to publicly take a political position on something that's not supported by the fact. It's not okay to then say, you know, we're going to store the court because we disagree with this court order. Right. So there's a lot of nuanced here, and I think that the Department thus far has taken a very careful approach to charging and charging decisions that's you know, consistent with with our old

frends from law school, the rule of lenity. Right. The Canada construction that says you have to look at criminal cases narrowly, and I think that's going to continue. And I think that unless there is really really incredibly incredibly strong evidence that's presented by the committee or that's adduced through some other investigative method, I think it's unlikely the Department would elect to move forward with charges that are that novel against someone that's that senior. Might they consider

a charge like obstructing an official proceeding. You have this issue of the complexity of the facts, the complexity of the law, and the application of those complex facts too in some cases kind of unsettled areas of the law. The obstruction of of a congressional proceedings is something that a lot of the insurrectionists and writers have been charged with and something that a lot of them have pled

guilty on. There is this one outstanding district court case suggesting that, uh that the bus Turnings Office has read that law in an overly and unconstitutionally broadway. There are six other district court judges who have who have found the other way. So I think that's something that will kind of go up on appeal. But again, you know these these legal issues which in some cases are complex, and in some cases I think are relatively simple. Right.

You don't really want to bring an edge case when you're dealing with conduct that is so close to constitutionally protected behavior for the first time. Right. I think that there are probably other older statutes which might be a little bit more on poin, but there isn't really the level and kind and quality of precedence to guide charging decisions that there is for more contemporary statutes. That makes things hard. As far as the Georgia investigation, do you

think the path is clearer there? I think that because the Georgia investigation involves Georgia's state law, we also ultimately involved the Georgia jury, there may be more direct tasks to prosecuting individuals who if they applied inappropriate pressure to

do something illegal, particularly for the secretary of State. Again, those are laws that don't approach being constitutional in nature in some of the ways that that that federal laws do, So it might be a I don't want to say no investigation in criminal cases ever straightforward, but that there might be a more straightforward path there. Of course, no

one has ever prosecuted a former president. Do you think that the Justice Department is looking for more then they would normally look for in a case, more than just you know, being convinced that someone is guilty and that you can prove it, because they know what's at stake. So when they are high profile or high consequence criminal defendants, and this is certainly case when I when I was at d o J. And I think it's always been

the case there, they always receive more attention. So be it a high profile counter terrorism case or a high profile securities broad case, it's always going to receive extra layers. One of the reasons that it receives extra layers is when you're doing something high consequence, you want to make sure that that senior leadership knows uh and you know, you might want to stress test the theory of the case a little bit more than usual, so you know,

more memos, more meetings. Right. One of the reasons might be that you're making a novel application of the law, or you're using a law of like thedicious conspiracy that's just not used very often. And I no, you know, the last time there was a seditious conspiracy charge, the Department had the citious conspiracy charge dismissed by judge in Michigan. Right, they didn't. They didn't even get to a point where, um,

where they could where they could fully try it. So yeah, you know, you combine that with the complexity of the fact finding, the fact that this is going to need to be presented to a grand jury and explained to a grand jury who's then going to need to indict, and I think again the January six Committee is doing an extraordinary job of explaining this really complex series of events, right that has to happen to a grand jury and

then to uh to a district cord jury. Yes, I I do think that that they're probably receiving additional attention. That said, Judge Garland has said that the approach of the Department is going to be to work its way up and to bring more complex and more meaningful cases as the more complex and more meaningful facts emerge, and they they've done just that so far. I mean, I think that there's just this balance of what a lot of people want to see happen versus what should happen,

versus what can happen. And this is probably the highest, one of the highest prop cases in history. But dealing with the dynamics of that I think are not are not unusual. And we saw this in uh, you know, the bank collapses after two thousand eight with with Enron and the corporate fraud in the the you know, in in two thousand and one and two thousand two, in

some of the early terrorism cases. And I do think, you know, this is a Justice Department that has said it's going to move really deliberately and really carefully and over time. I think that is probably the correct approach. Thanks Jordan's that's Jordan Strauss Kroll Managing Director. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our

Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten b m. Wall Street Time. I'm June Grosso, and you're listening to Bloomberg