Supreme Court Rules Against Unions Again

while their cases work their way through the system. Joining me is Leon Fresco, a partner at Hollandon Knight Leon. Who are the immigrants? This decision concerns, Well, the group is actually small in terms of written large the amount of people that come to the border, but in a border certain situation could end up being actually a significant number of people. And that's because it's the group of people who have been deported any time in the past and who seeks to come back and re enter the

United States. I've or they've been ordered deported and asked for not asylum because they're not eligible for asylum, but basically a release from a second deportation called withholding of removal that says that the country that they're a citizen from is so dangerous that they will be persecuted there.

So why aren't they eligible for asylum? Well, what happens is you're only eligible for asylum, which is a specific type of relief that actually gives you a pass to citizenship in the United States if you apply for it when you first enter the United States and are not ordered deported. But if you've been ordered deported previously and try to re enter illegally and are apprehended re entering illegally,

then you're not eligible for asylum. You're only eligible for something called withholding of removal, which serves the same purpose as asylum, and that which is that you don't get supported to the country you're afraid of being deported to. But does that give you a path to citizenship? You're only in America in lux until such time as the crisis in your country is over. Not for some people that ends up being the rest of their lives, but other people could be removed if the situation changes in

their country. All right, So tell us about the majority opinions. So this case is a difficult case because it's a case about when someone goes through this process of re

entering the United States. Are they allowed to have bob meaning do they have to stay in detention during the whole time that they're asking for this withholding of removal release or will they be you know, will they be are able to ask for bond and be released on conditions of release or could they be detained for up to one year or two years while they're asking for release.

And so all of the administrations, including the Biden administration, so you have Obama, you have Trump, that you have Biden, have said that in this group of people who is re entering the United States, they're subject to detention under a statute that says, when we're trying to deport a person who's already been ordered deported, we are allowed to detain them without fonds. That's been the position of the

last three administrations. The litigant position, the the non citizens said, know, what we're subject to is a detention provision that applies to people who are going through brand new proceedings, because that's what we're going through is brand new proceedings when we've re entered, and in those brand new proceedings, you're

allowed to apply for Biden. So there had been a circuit split some circuits that said, the provision that applies to people who have already been deported is what applies, and other people said, so this is a new proceeding.

So uh, the conservative justices of the Supreme Courts that six So the six to three decisions ruled that in fact, the Obama Trump Biden position was correct, and that the detensive statute that applies to people who have already been ordered deported applied to this group that re enters after they've been deported, but that they can be detained for the entirety of these proceedings, even if they take one

year or two years. They can be detained without found in an immigration detention facility until these proceedings have been adjudicated. So Justice Alito, who wrote the majority opinions, said, basically, the question isn't whether they can be deported, but where they'll be deported too. Is that true? They're all going

to be deported? Yes, And in fact, this is an argument that the sending opinions of the three liberal justices Briar, Soda, Mayor, and Kagan don't even address because they know it's a difficult argument, and that's why they didn't address it. When a person re enters the United States after being ordered deported, they're asking for withholding of removal from the country they're a citizen of. So let's say you're from El Savador. You're saying, please don't support me back to El Savador

because I'm going to be persecuted there. That does not limit under US immigration law, the Immigration and Customs Enforcement Division from supporting that individual to Mexico or to Sweden or to Ghana. It's just a matter of whether any of those countries will actually accept this human being, which is very very rare, and the court talks about it only happens in one person of withholding of revootball cases.

We then usually what happens in those cases is those are people we really want out of the United States because they're very dangerous and we don't want them walking around. And so what we do is we basically make some diplomatic heels where we say, if you want something from us, what is it that you want and if we give it to you, will you take X, y Z people? And so the United States makes these diplomatic deals and

we remove certain people. And so just as Aldo's points is, we're not having a debate about whether the person is going to avoid deportation, because the person can be deported at any moment if you find a country that's not going to persecute them. So the fact that they're just trying to evade deportation to one specific country doesn't make this a brand new proceeding. It's just an ancillary proceeding happening after the fact to just avoid deportations to a

specific country. But they can avoid deportation written large, and stay in the United States. And so for that reason is why he says that the statutes that apply to people who have already been ordered deported as is that those people can be detained without bonds while we're trying to execute their removal order. Is what applies here. Justice Brier wrote the dissenting opinion for the three liberal justices.

What was his reasoning. His reasoning was based much more on, and rightly so, the facts of what's actually going on here, and Congress is knowledge of the facts that are going on, rather than maybe the actual text of the statutes, and saying Congress clunkily wrote this sect because at the end of the day, they would never have wanted people to be detained for two years it while these things are being decided, and they knew that withholding of removal is

a type of release that is very very very rarely uh thwarted by a third country deportation, and meaning they knew that withholding of removal was based sically a new immigration proceedings where you're going and you're deciding again whether the person can be deported, because if they win, they're gonna be able to say, as a matter of practice, nobody's actually gonna send them to Sweden or France or

Australia or any of that. And so because they do the practical efforts of this, you should interpret the statute in light of that practical knowledge of how the immigration system works and say that they meant that this was a new hearing and because there was a new hearing,

that person can be eligible for bonds. And so I mean this makes a big difference because at the end of the day, if you're eligible for bonds, then there are a lot less disincentive for returning to the United States if you've been deported, because the idea is that you can return and make a prime of fasia claim that you're going to be persecuted in your country, you can get bond Then the idea is maybe more people will be willing to take that risk then people who

don't know. If I get caught, I'm gonna be detained for one year or two years, and if I lose, what will have been the point of all of this. So the idea is the reason you've seen the Biden administration stay with the Trump administration stay with the Obama administration's positions is they don't want people who have been deported already coming back into the United States thinking there's a calculus where they will be able to get bonded into the United States and be able to return and

just walk around. They wanted to say, look, if you're a legitimate refugee who is worried about death, then being in a detention facility while your claimed attending, as horrible as it is, it's still preferable to death, so you will come. But if you're not a legitimate refugee and you're not actually facing death upon removal, then it is let likely you will be willingly give up your freedom in a change for a very small chance to remain in the United States. And so that's why you've seen

all three administrations takes this position. So is it basically a textualist reading by the majority and a practical interpretation by the descent. Yes, that's basically what it comes down to. If you've seen this this term where sometimes the sexual reading helps the non citizens and sometimes it hurts the non citizens. And here the textualist reading, if somebody is

being honest about it, hurts the non citizens. Because there's no way you can say that there isn't a removal order that exists for someone who's re entering the country after they've been ordered removed. That removal order does exist, and it can be executed to one and nine countries, but maybe just the one that's the person doesn't want it execute it to So even if it's practically true that it won't be executed with probability as any of

those other countries. So none of those other countries want this person and they won't give them a passport to enter, it is still theoretically possible. And so as a matter of sexualist interpretation, there's no way you can say that there's a new proceeding that is to decide whether someone is going to be ordered removed, which is what the liberal argument requires you to say. And so that's why I think probably as a matter of sexualist interpretation, the

majority opinion is correct. So now we've discussed before the last three decisions in immigration cases were unanimous. This is six to three down ideological lines. What made the difference here? Do you think the difference is? This is a case which, if interpreted by an administration that is trying to have a draconian path on immigration, will lead to some pretty

harsh outcome. Meaning you could have people in detention for quite a long time and just lock them up and throw away the key while their case of sending and in these cases take forever. Then people will just know I'm just gonna be locked up forever if I try to come into the United States. And so you have the three liberal justices saying we don't want to sign

on to that. That sounds repugnant to us. But I think the solutions to that will be to allow what are called as applied challenges, which you can say, look, maybe this statute reads the way it is, but there should be no statute in the United States that allows me to stay longer than a year in immigration detention. Because this is not criminal detention. I haven't committed a crime. I'm just sitting here in immigration attenion and the government

is taking too long to do my case. And so that's what this will now lead to is what are calls as applied challenges, where there's an individual whose case is taking too long, they will then file a position for rid of a bas corpus in the U. S. Disrecord, saying my case is taking too long. It's unconstitutional to hold be this long, and that will be an issue

if the administration is holding people that long. I don't think the Biden administration we'll hold people that long, but if there's some new administration, you'll see those kinds of cases arising. Now. I've read that the number of imprisoned asylum seekers has jumped exponentially under the Biden administration, that it doubled from fourteen thousand early in the year to

thousand in June. Why so be because what has happened is people think of the immigration border issue as an issue of just Mexico and Central America, but that's actually not true. We have a much more fluid and dynamic border than we've ever had before, and so what happens is that people think that there's an entry route into the United States through the southern border. You start to see people from all over the world show up at your southern border. You don't just see people from Mexico

and Central America. And so what happens is there's more of these people who are from all over the world show up at the southern border. Mexico doesn't just let you return them to Mexico because they're not Mexican. So it doesn't work that way. You can't send someone from Cuba or Ecuador, which are two of the big big sending countries right now, but there's others. There's Venezuela, Colombia, there's a lot of place. There's people from a lot

of places coming to the southern border. Mexico says, well, these people are Mexican, why do you think you can send them back here? And so they have to be detained in our facilities until we can actually process their deportation to the actual country they're a citizen of. And so that's what's leading to this massive increase and fight in detention at the immigration and customer facilities. I found

this interesting. There's disagreement about the term used for illegal immigrants, just as a leader in the majority and Justice Thomas in a concurrence use the term alien, but just as prior in the descent used the term non citizen, and apparently the Solicitor General is using the term non citizen recently as well. Is it just a question of sort

of being politically correct or is there a difference. There's a huge problem because the Immigration Code, so the actual text of the statute uses the word alien, so it doesn't use any other word, and it says an alien as a person who is neither a citizen or a national of the United States. And so what's weird is we have these two categories of people in the United States. We have citizens that we have naginals, and for most people that we think of with US passports are citizens.

But there are some people who are US nationals. But those are people like from American Samoa and from the Swayne Island and stuff like that, who are not actually US citizens, but they all an allegiance to the United States or US nationals. That's called And so the reason that's complicated is when the politically correct term non citizen is applied, you could be a US national and not actually be a citizens, So the pert non citizen is

actually imprecise. Thanks Leon. That's Leon Fresco of Hollandon Knight. The Supreme Court rule that California was violating the Constitution with the decades old regulation that gives union organizers access to agricultural company land for part of the year to talk to workers in nine provision that grew out of the efforts of Caesar Chavez to give farm workers collective bargaining rights. The six to three vote down audiological lines

is the latest blow to unions. In the majority opinion, Chief Justice John Roberts concluded the California regulation unconstitutionally interfered with the growers property rights and a provision in the Constitution that prohibits governments from taking private property without just compensation. Joining me is Bethanie Burger, a professor at the University of Connecticut School of Law. How much of a blow is this decision for unions? So this is a blow

for California migrant farm workers. As far as I know, no other state has a statute or regulation like this protecting migrant farm workers. For unions, this shows that the majority on the Supreme Court just doesn't like unions. But unions that are not farm worker unions are protected by the National Labor Relations Act, which gives access to employer property when there is no effective way to reach employees off the property. So it's effect on unions generally might

be relatively confined. So explain the majority's reasoning here. So the majority said, Well, the first part of the opinion says that whenever the government authorizes and involuntary entry into property, that is a taking, and the only question is what

compensation is doing. But that new per se rule is, as the Court said in another case, only a per se rule for a few pages in the u S Reports, because the Court immediately includes a lot of exceptions to that pier se rule of invasions that will not be taking. So what this leaves for lower courts, for regulators, for just individuals is a tough process of trying to figure out when those exceptions apply or not. Did Chief Justice John Roberts year from precedent. I've been reading that he's

rewriting the takings clause. That's correct. Yeah, So the majority claims to rely on precedent, But what in fact it does is it takes isolated phrases out of context. And twist them into something that they never said, and in fact twists them sometimes into the opposite of what the

decision said. So, for example, the court says that a government authorization of a right to enter is a per se taking, and it distinguishes is the prune Yard decision from about right to speak at malls by saying that was only because the property was open to the public. But prune Yard said, this is a taking of the right to exclude, but not all takings of rights to exclude our takings under the Constitution. So that's the opposite

of what the court held in Theater points. Similarly, there are a number of cases that holds that physical invasions are taking from the Supreme Court, but they only do so after they find that the invasions significantly undermined the owner's economic interest. And indeed, those cases sometimes said not every invasion is going to be a taking, And in this case, Theater point made no out of station that there was any invasion of its economic interests, So it's

inconsistent with those decisions as well. Just explain what the takings clause is. The takings clause says that the government cannot authorize a taking of private property for public use without just compensation. So if the government takes property in the constitutional sense, it has to pay for it. But there are some cases where that's easy to apply, taking somebody's house, saying that somebody's land is going to be

taken for a road. Those are easy cases. The hard cases are when the government doesn't permanently physically take anything. And in those cases the court has applied kind of balancing test, say why are they doing it? Is there much of an impact on the owner's interests, and in a lot of cases says there isn't a taking. That's what the Supreme Court changed in theater point, what does it tell you that this is a six to three decision.

So what this means to me is that the conservative majority on the Supreme Court is willing to expand private property rights even when it violates precedents. And that may be very significant for the taking clues or almost a century, taking decisions have generally been split decisions, been five four decisions, with one justice or the other going back and forth.

If this continues, that's no longer the case. Talking about the union aspect of this, there have been several decisions from this court eroding union power, including one that overturned a forty year old precedent, the Janice case. They've all been five to four as well, or now six to three. I don't even know if the union has Unions have won any cases at the Supreme Court in recent memory.

I think people watching the Supreme Court recognize that this is the Supreme Court that is not friendly to unions. The Janic's case is the biggest example. But this adds to that list. And now explain what the liberals said in dissent. So one of the points of the liberals I think is kind of wrong. One of them was to say this is just the regulation, not a physical invasion, and that is based on a past decision. But the

distinction really doesn't make sense. The other points are more accurate. First, this case is inconsistent with past presidents. The Supreme Court has never said that a temporary invasion that doesn't cause any eco nom the corm is a taking certainly not a person taking. In fact, it said the opposite. The second point is that these exceptions create a lot of uncertainty, and they may, if interpreted in a certain way, in fact,

threatened lots of health and safety regulations. The third point is that it's not clear what this decision actually does, even for the regulation issue. So the taking classes. If you take property, you have to pay, but what do you have to pay. You have to pay the fair market value of what's been taken. And here, from everything that was presented below, the fair market value appears to be zero. There wasn't any evidence that this economically harmed

the growers. So the Supreme Court tells something like this with respect to interest on account, where the interest would be so small that it wouldn't even make economic sense to collect it. And in that case it had to go back in another decision and say, well, you know what, since the fair market value of this is effectively zero, you don't even have to bother to go through the takings analysis here, just say yeah, it's a taking, but you don't have to pay for it. And so something

like that might happen here. What Justice Brier said was if the government wants to do something like this, they could do the economic analysis and say we're going to give you one dollar in nominal damages for this invasion. You come back and show us that the fair market value of it was more. So that's another possibility. During the oral arguments, Justice Barrett said, it could be as little as fifty dollars. I don't know where she got that figure from. So do you think that the next

step is then determining compensation. So the case goes back down to determine what compensation would be. What is the fair market value here? And it might be one dollar nominal damages. That's something that happened in the Supreme Court first per se physical invasion case in n where they said, even saying that somebody can put a cable box on your roof that you don't see, that doesn't undermine the value of your property, that is a per se taking. And it went back down to the state of New York,

and New York said, okay, it's a taking. You get one dollar because it doesn't undermine the value of your property. So that could happen here. So then if you look at that, the compensation could be very little, and you look at the fact that the n l RB controls elsewhere, it seems like this is more a defeat in name that it won't have that much impact. Well, no, it does have a very big impact on every other area

of property law and regulation. So now potentially any time that the law says that individuals can enter somebody else's land without permission, there's a possible claim that that is a taking, and it has to be determined whether it comes within one of those three exceptions or it's not. What's the compensation would be tell us what the three exceptions are. So the three exceptions are, first, if it's not a trest pass, and because trust pass is a

common law doctrine, that's not all that clear what that means. Second, it's the right to enter is part of the longstanding principles of property law, and there are tons of rights to enter that have been recognized for hundreds of years, and new one have been added. So if it comes

within one of those, then it's an exception. To the third, the court said that the government can require entry to property as a condition of receiving certain benefits, and they said that all health and safety exceptions should come within that. But there is some scrutiny about whether the entry is sufficiently connected to the harm That suggests that's not as

easy as an exception as the court said. So determining the scope of the exception is going to be up in the first place to lower courts and regulators, but it will eventually get to the Supreme Court. So if the Supreme Court keeps the composition that it has and the preferences that the six justices and the majority have, then those exceptions are going to get narrowed the Pacific legal foundation ist and two at the Supreme Court. So does that show that property rights win at the Supreme

Court most of the time. Well, so it depends on you to find property rights. So I would say that property rights include the right of the government to protect everybody's interest in property in safe working condition and so on. So it's a particular vision of property rights that favors favor certain people and doesn't favor other interests. Thanks Bethany. That's Bethany Burger other University of Connecticut School of Law. I'm John Galso, and you're listening to Bloomberg.