Texas Roadblock to Biden's Deportation Pause

In a sign of the many legal battles to come, Texas sued to stop the new administration's one hundred day pause on deportations of undocumented immigrants, and in a swift legal defeat for the administration, a Texas judge temporarily blocked the moratorium. Joining me as immigration law expert, Rick Sue, a professor at the University of North Carolina Law School, Rick this order by Judge Drew Tipton, a Trump appointee. Were you surprised that the judge issued this order so initially?

I was surprised, right, because my understanding was that the challenge was primarily based on agreement, and I just thought that not only was the agreement really unenforceable, but that for the judge to rule so quickly on this without argument without sort of going through everything would be too quick. After reading it, though, I realized that the order was

a lot more limited. It certainly did not address this unprecedented agreement between Texas and the federal government, but in some ways was more closely situated to something that we've seen a lot. This is based on the a p A. The Administrative Procedures Acts, a little statute. It seems to be following the same kind of strand that was used against the Trump administration with regards to the executive orders and policies that were issued under his administration. So explain

the judge reasoning. So the judge is reasoning, Um, there were two points that he sort of laughs on too, because in order to even get a temporary restraining order, there has to be some sense that the party is likely to prevail on the merits. Not really data, they addressing the merits, but they have to address this sort of indirectly from that particular stand and the two points.

One was that the one day pause violated a provision of the federal law on immigration, the Immigration Nationality Act, which actually requires individuals with final orders to deportation to be removed within ninety days. Right that certain individuals that within the pause would not be removed with the ninety days, and that this violates the federal law and therefore the policy that violates it would then be an Administrated Procedure

Act problem. I'm having to talk about that because I think in some ways it might be a misreading of the memo, or at least in my opinions, But nonetheless, that's the first claim. The second claim that was made is actually similar to the Supreme Court case with regards

to the Trump administration's efforts to roll back SOCCA. Now, if you call from that case, what the Supreme Court held was that the justification that was given was insufficient, There wasn't sufficient reason for why they were rolling back

soccer their respective of the other issues around it. And in some ways they're making the same argument here that the explanation that was given for the need for one hundred day pause was not sufficiently articulated, was not satisfactory to the court, and for the Court thought that it was likely to be ruled arbitrary and capricious, which would

violate the Administrative Procedure. That again, I have some quipples with that particular interpretation, but nonetheless these are at least rounded within things that we've seen before, as opposed to this agreement, which support itself said raises all sorts of constitutional questions, and he is not going to rule on that at this point. Just to clarify, the agreement you're referring to is won the Trump administration signed with conservative

states in its final week. The Texas a g claims the Department of Homeland Security agreed to consult with Texas before making any changes to deportation regulations. How unusual would that be? So this is very unusual, not only this idea that the federal government would delegate right, this sort of obligation to both consult with a particular state or even a particular locality, but also even the obligation that in this particular agreement that they would hold off and

making any decisions for six months. They would have to announce it, wait six months and get consultation. Clearly, this is a last minute sort of effort by the Trump administration to try to hamstring any policy changes by the Biden administration, and in this case, they're doing it through this agreement, through contract, not even through a policy or

a statute. Personally, I don't see how this agreement that Texas is doing on would be enforceable, but it certainly sets up the general framework which is the kind of politics that we're going to see around immigrations and other issues going forward, which is state attorney generals and Republican states sort of taking up the mantles challenge of federal government. So the Justice Department lawyer said Texas is asking to run federal immigration law. Is that the basic argument that

the Justice Department is going to put forward here? Or are there other arguments? Yeah, there's lots of arguments for why this agreement, this con practice, last minute contract that was signed by the outgoing Department Homeless Security is not enforceable. But I think that Justice Department is right in this

sort of broader cases. All these arguments sort of circle around the idea that the federal government cannot delegate or relinquish, you know, some sovereign power over policy, either the executive in terms of their discretion or even the whole federal

government in terms of making policy to a state. I mean, you know, to go through some of the many arguments, right, I mean, one is whether or not the Department Homeless Security can even enter into this agreement to bind the federal government or bind a future administration, as the Trump minister is trying to do. The agency only has the

power that is delegated to Congress. And I can't find any particular delegation by statute that allows to be just to bind its own power or even find the federal government in this way not to men do that. But we're talking about doing this through contract, and we have to remember that contract is not usually how governmental policies are made. It's to be made through statute. And in fact,

the federal government has sovereign immunity. You can't usually sue the federal government unless it gives permission for that suit in contract or towards um. And in this particular case, uh, you know, there has this provisions to allow certain suits on contract for government contracts where services are good, but not for this kind of policy contract or how policy

do you get made? Third, even if it was delegated, right, even if you know somehow Congress allows this kind of binding greed to made um, this could run a foul of just the basic non delegation doctrine, right, which is to say that there are just certain responsibilities and powers when it comes to immigration, we know it's an exclusive

federal responsibility. It's just you know, these powers can't be delegated, right, You can't just sort of take a bunch of federal government powers and then through contract delegated to a state or delegated heck to presumably contract to like a private industry. Uh. These are powers that the government has, uh, And there

are processes by whiches are changed. But to sort of stripped that kind of power, that sovereignty and give it to another institution, this kind of delegation has ever been tried. But even other types of delegations have run to foul the non delegation doctorate or separation of powers issues or

federalism issues. So this runs without all these um uh and even just the basic idea of the sovereign power of the federal government here be given to arguably a state and not even just a state to an attorney general. All these agreements just signed with attorney generals, right, which itself raises another set of hasn't The Supreme Court, the Roberts Court in particular, very much said that immigration is

a federal matter, not the states. Yes, yeah, and not just I mean this is well established in uh sort of constitutional law by many Supreme courts, but even recently right the Supreme Court has sort of reaffirmed and reasserted that this is a federal power and that U. States cannot regulate immigration. And in this case, the argument would be, they can't regulate immigration, uh when the federal government tries to sort of delegate that power to them. In fact,

we have a more recent decision. It didn't get to the Supreme Court, but it was decided most recently in the Fourth Circuit, and this was when the Trump administration gave veto power to states and localities whether with regard to refugees that would be settled within those states and localities. Um, so not exactly an agreement, but nonetheless the policy was that unless the state or locality agreed to accept refugees,

they wouldn't put any refugees there. And that was challenge again again, you know, on the basis that this goes against congressional statute and goes against the sort of power that's delegated to the agency. And most recently the Four Circuits found that to say that, you know, the statue says that you must consult but does not allow you to make your decisions on the basis or delegate those decisions to the states or localities. And essentially they argued,

that's what these comministration is trying to do. So we seem to have you known earlier attempt Uh. That might also be of concert quints in the enforcement of this specific agree there might be an objection because Ken Cucinelli signed this as senior official performing duties of deputy secretary, and so did he have legal authority to even sign it or is it a violation of the Federal Vacancies

Reform Act. Yeah, that's that's absolutely correct. And of course there's been other litigation about actions taken by Crichinelli on the basis that he does not actually have the power to hold that office or to find the department right that he's uh, he's overseeing, right or or not oversee I guess under the law. So that does raise another issue, and I would think that you know, even on top of that right to enter into the agreement to make

this particular policy. This reminds me of the DACA reversal that the Supreme Court also reverse recently. Right, I mean, this came out of the blue. It's not clear there was much consultation, much sort of you know agency certainly not standard agency rulemaking in this particular case. So not only is it does originally have the power, but is the process that he went through in this case also problematic.

It makes sense as a last minute sort of last minute bomb, I think were less for the Biden administration, But from a legal manner, this is not how we usually imagine agencies operating. Getting back to the judge's order, what about your quibbles? Tell us what your quibbles are. Now, it is important to note that although certainly most law enforcement offices and prosecutors have prosecutorial discretion, it is important to note that Congress has limited that discretion somewhat when

it comes to immigration. Essentially, what it says is that the Congress has said that once a final order of removal has been issued and besausted all the appeals, that the government shall with the court. In fact, that shall remove the individual within ninety days. There's some small exceptions, but they don't fly here. Now. On the face, it does seem like as the court said that the one

day pause would violate that provision. The reason why how to equipbal was because if you read the memo carefully. The memo actually does provide an exception or individuals who may be subject to this ninety days shall be removed provision, and says that individuals who maybe have to be removed as a matter of law should be exempted from the policy. So it actually seems to me that the policy itself accommodate this particular law, at least in the way that

it will be implemented. Of course, this is very early on the challenge, right, so we don't even have a case where they violated that law that we can point to. So it seems interesting that the court would enjoin or at least restraint the entire memo, even though the memo doesn't seem to violate this precision that they're pointing to. So again, I'm assuming that in further rounds this might come up. I don't know if the court will sort of unraveled, but at least for my reading, it seems

to be actually in compliance with that law. Can I judge in Victoria, Texas forced the federal government to take affirmative action guarding immigration, forced the federal government to deport people.

This is the sort of million dollar question here, you know, any comparison drawn with regard to the nationwide injunctions issued against the Trump administration kind of buckles a little bit here, because the injunction in those other cases, most injunctions against the government is to prevent them from doing something right, just sort of maintain whether you're doing But this actually is different. Presumably at what Texas wants is actually to

force the federal government to continue to do deportation. Now, what I think here is that it's not entirely clear that even the means of the order or the rational behind the order can actually force that affirmative actions happen. Now, it could be then to buy the administration just says, okay, the policy is restrained, but that doesn't necessarily mean that we are forced in every case, and are you exercise

the discretion to remove everyone immediately? And in my opinion, it doesn't seem like the restraining order on the policy would actually get that far. So the Judge Tipton said, nationwide injunctions of executive action are a topic of fierce and ongoing debate. Even so we issued a nationwide injunction. This is in some ways going to be an interesting play out because obviously the criticism during the Trump administration

when nationwide injunctions would be issued against Trump administration policies. Uh, the most of the criticism was from the right and conservative leaning judges. Right now, they made their claim sort of broadley, you know, sort of in terms of federal power and the power of small distrectport that forum shopping, uh, and the ability for you know, sort of a very

early preliminary injunctions to sort of pause federal policy. Well, now the tables turned, and it seems like to fight all those concerns that were raised before that certainly at least wouldwards a disjudge and Texas interests. Uh. They seem

to be following into the same exact or playbook. What I'm curious about the debate over nationwide injunctions is now that the administrations have changed, you know, will the Supreme Court are or even less they conservative jurists suddenly change their minds or are they going to continue which seems to be where they were headed this sort of principle that they were headed towards, which is disfavoring nationwide injunctions,

especially when it affects national federal government policies. So I think that's the way to be seen right as part of this ship going to rule on this or some sort of principles, um, and I would say the track record has not been so great for my opinion as a person that tries to commit to sort of these principles and teach my students, you know, neutral principles of law. But I'd be interested in what the Supreme Court actually does with regard to this kind of reversal and partisan power.

Biden is issuing a lot of executive orders with regard to immigration. Can Republican attorneys general attack those orders in the same way and stop his immigration reforms in that way? Yeah, So there's sort of two things I think this order suggest. I certainly believe if they actually have some sort of favor ruling, which again I will still commit to, I don't see how on the agreement, Uh, then there would be broad range attacks on all sorts of things on

this particular order. However, though you know a Texas scot it's first win if you will, it seems like it's still easily worked around that. I think a lot of the executive orders in general, but certain agency actions in immigration would be able to avoid it. So, for example, in avoiding this uh ninety days. That's just one aspect

of deportation. This doesn't affect what the border law policy or even policies on whether or not to bring charges against the individual for removal, or whether to stay or removal, all those are still in play. Second, the argument that was raised here, which again I don't actually think the memo explains that much better this that that that most agency actions does. But at least with regard to the argument here, that's arbitrary and caprecious because it wasn't sufficiently explained.

The funny thing about the January twenty memo is actually it was a precursor to a guidance coming out of February one. It's interesting that both Texas and the Court didn't even wait for the February first guidance, but I

understand politically why. But it couldn't really be easily that once the February first guidance comes out and has more time to explain why the hundred day pausits necessary, or once a hundred days are over, another policy to come out to explain the priorities of the ongoing administration, that at least that second issue that the Court down here would go away. This could go away on February one.

I mean, I don't know what the court will rule, but it seems to be something that they find administration can do, which is just offer a fuller explanation, which in this case I think they're both uh willing and more capable of doing than it seemed like with the recission of Daka, where the Trump intstress just seemed actually really disclined to give a policy rationale for that, probably because of the weird politics behind. So now this is

a temporary restraining order. The judge is going to hold a hearing on a preliminary injunction since part of it of the very restraining orders of finding that Texas would succeed in a temporary injunction. It does it seem as if a temporary injunction is the next thing that's going to happen. It seems to be um my only sort

of you know, has anization. But the only thing I'm waiting to see is whether or not both the government and the court decides to wait for the February first guidance to come out, because I think it is very possible that at least the the fight administration can use the February first guidance to address the concerns that were

raised in issuing the temporary restraining order. Um, certainly, I think the Court can move fast again and try to get the preliminary injunction out before the February first guidance. I think as a matter of principle, I don't see why he would, But I think, you know, if you were to wait for the February first guidance that h

it may be that they can get around it. But then again, you know, given how fast that the Court has moved, and given how fast would have Texas wants to celebrate this, Uh, it may be that even if there were further guidance provided that addresses is that the Court will still issue a preliminary injunction. Uh. If anything,

just the whole Biden administration. One thing to note here, UH is that the agreement itself that's so controversial was intended to hold off Biden administration changes for six months. What I'm seeing now is even if the agreement is unenforceable at the end, these kind of legal maneuvers that they're doing, like that Texas doing made through preliminary injunction and just litigation time hold up Biden administration changes or at least try to for six months achieving the same goal.

But through this sort of procedure of litigation, and even if these cases end up losing at the circuit level or the Supreme Court level, they would have had that block which seemed to be their goal, uh, more than necessarily getting a particular policy in places. Interesting, if a preliminary injunction is issued, one assumes that the Biden administration and will appeal, that they'll be appealing to the Fifth Circuit, which is the most conservative circuit in the country. I

believe yes, Are they likely to find an unfriendly court there? Yeah, this again I think is hard to say, right, I mean, I certainly think in terms of policy. I think in terms of you know, sort of understanding or preferences with our immigration policy, I think the first ticket would be generally considerable unfavorable um And then you know, maybe the

appeal goes up to the Supreme Court. On the other hand, you know, it does raise this question of you know, our circuit court judges or even the Supreme Court justices going to stick to a long term strategy, right, and they're concerned about nationwide injunction, uh in sort of sort

of trying to tamp them down. Um. So I think in some ways it's not just the sort of partisan leaning of the judges that may be assigned to the panel, but also whether or not, despite their partisan leaning, are they going to be thinking in a short term partisan perspective or a long term uh sort of you know, what do we actually want to see in terms of what courts can do regardless of who's uh an administration.

When at that particular point when the Supreme Court have a hard time though, when in cases like the you know, the Muslim band, they finally allowed that to go through, and yeah, this is not something for the States, this is a federal government issue. Yeah, I mean I think that's going to be the test. And when I talked about the February first guidance or what the Biden administration mad to do sort of going forward, I mean, we have to remember the Muslim Land that the Supreme Court

review was version three. Right, they had tried once and then they tried again, and then did a third one with all these explanations, and it was the third one that passed. Right. So I was assuming even for this case, you know, it's not going to be this memo that will ultimately reviewed. Right. What will be reviewed is, you know, either the February first guidance or some other further guidance

that comes down the road. Presumably if the Supreme Court stix to with you know, uh precedent, Uh, it would review that third one. And you know, just you need to offer an explanation. Is actually not that hard to do if you're willing to offer the explanation, right. Um, So it would appear to me that if it does go that far, that just like the Muslim van uh,

that the Biden administration will prevail here. But let's not also forget it was a long road to the Supreme Court, and the Supreme Court can choose whether or not to take a case or not. So it could be again, if it's a delayed tactic that you know, similar results can be produced just buying the delay of the litigation. Um. One day, we're going to see similar between the Biden

administration and the Trump administration. Is the Trump administration kept trying to accelerate its cases and facing these district court injunctions and try to get out of the Supreme Court as fast as possible. Um and although there were criticism against that in terms of you know, lighting and go

through the regular process. I suspect Biden administration is going to feel the name if the same tactic and strategy has been used as Texas is doing here to hold up a lot of these agency decisions from going forward. Do you see this lawsuit and the agreement as an indication that the tug of war over immigration is going

to continue in the Biden administration. I think what's important about this agreement and the setup that it creates is that it's set up a roadmap in which future Biden administration policies on immigration is going to be facing a wave of state attorney general is really suing on any small change, And I see this as essentially the set up as the immigration hawks in the Duke is retreating to state attorneys generals and to the state level, So

we're likely to see another wave of state federal litigation again. Whether or not they succeed or not, it is important, I believe, as political messaging and as sort of showing that there is a challenge to the federal government and to the Biden administration. It seems similar to what the Democratic attorneys General did during the Trump administration. Interesting, it's certainly not limited to immigration, but I think immigration you

have an interesting development. You know, when the federal government became dependent and in some ways reliant on state local participation for immigration enforcement, what they also opened up is a sphere of immigration debates that is no longer limited to the halls of Congress or the decision makers and

lawmakers and federal government. So in some ways, the solicitation for assistance now has changed the framework for immigration debates so that whether it's Blue states and Republican read the federal government or the reverse, that essentially immigration policy is now always at the edge of the state and federal relationship.

So it's interesting how cooperation reliance has now built and sort of reshaped the political landscape we're likely you're going to see going forward under the bind administration, just as we saw it in the reverse under the Trump administration. Rick, where does DAKA stand right now? So dakas in a strange position right So one thing to note is that, no, the Supreme Court at least has not at this point

determined that DOCTA itself is legal or constitutional. What it determined that was that Trump's trying to reverse it violated the administrative procedure that but sort of UH did not actually decide on that particular legal question of whether or not data itself is legal. I suspect that we're going to see another ways, and this particular lawsuit on this agreement suggests that states are going to be active another

wave of litigation that challenges it at UH. And that also makes sense that Biden, you know, even though he is going to uphold DOCTA right now, that Biden's first instinct right now is to get a bill to Congress. UH. Certainly, his bill proposed is on a much bigger topic with regard to immigration reform and unauthorized immigrants generally. But I would suspect that within it is an attempt to if you can't get that bigger reform, to get DOCCA and

Dream Act pass specifically. So that makes sense that he wants a compersional organization because I think it is still an open question, especially at the Supreme Court level, of whether or not data itself UH is legal, a question that they did not answer in the last case. What are like some of the big points of immigration legislation that Biden wants to pass so so in the latest proposal, it's quite broad, so it's not limited to the Dreamers.

In fact, they would be closer to Reagan's um amnesty provision in granting a pastic citizenship to almost everyone who is an on the authorized immigrant who arrived before a certain time. Uh, and of course has not been convicted of a felony, has page of Texas and other sort of provisions that go with it. But unlike let's say, Data or the Dream Act, it's not limited to just

people who ride as children. UM. In some ways, this is imagined to be a a reset, if you will, of uh, you know, the fact that to to recognize the fact that we've tolerated this growing population of unauthorized immigrants who don't fit into any legal category, right, who has been here for a long time but don't fit into any sort of understanding of you know, either immigration category or citizens, to sort of acknowledge that they are in fact the facto sort of Americanism degree. UM. So

this seems to be a recognition of that. UM. I think it's always that the strong opening gambit, right, UH, because I believe, uh, even though there's been strong consensus behind the Dreamers even among Republicans with regard to the entire or you know, the majority of a notarius immigrants. Uh, there's sharp divisions. They're based on party lines. Turning to another immigration issue, the wall. First of all, is the

whole border walled off? Now? No? No, So the vast majority of the wall construction was in areas that were already sent um. So you know, he would say that there were wall construction, but you know, others may argue that there was sort of like rehabilitation or sort of reinforcement. And of course, in some ways, in terms of the new areas that the wall bill, my understanding is less

than a hundred miles at this particular point. Right. So in some ways, in terms of the areas that have been um, you know, sort of fenced or walled, it actually hasn't changed all that much of before the wall construction to after the wall construction. Right, even though the areas that are fenced now I don't have been reinforced with this particular wall. And the truth does that makes sense? I mean there are areas that were not fenced, where

areas that were difficult defense and those difficulties still persisted. Um. And in some ways that's what the Biden administration, in canceling it is sort of suggesting that that those money that we're uh sort of taken from other pots, the most specifically Department of Defense, should not be sort of spent in this particular manner, especially in the areas where new wall construction would need quite expensive and not tie

was clear that they would be necessary. But in terms of new wall construction or you know, really, I would say since the Bush administration, it's you know, the areas that have been walled has not been substantially increased under the Trump industry. I've been reading about environmentalists complaining that, you know, they're destroying environmental sites and they're doing things that destroy the habitat for endangered species. Yeah, that's the

biggest concern right now. Right the new areas of wall construction that they were moving on to that in Trump sort of accelerated towards the end of his term, were areas that were hard to build an areas that were either private property or environmentally sensitive areas. UH. Certainly Trump waived all sorts of environmental UH restrictions and UH and checks in order to sort of accelerate it. Um So

in some ways. The interesting thing is a lot of destruction happened in the last few months of the Trump administration and accelerating this development. But it's not clear that a wall would be built. So what we got actually and why I think Biden was very aggressive in just stopping work as soon as you can, was all this destruction and all this effort that was going into it, even though ultimately there's not gonna be any wall there,

but the destruction will still persist. Um. So that's what they were moving into in terms of the areas of new construction. So what invit stop it immediately? I mean, my understanding there is that the work should have been stopped immediately with regard to some of the more aggressive work that was done, But there was a seven days. I believe the ultimate pause cannot be beyond seven days, so uh, it seemed to give the agencies that were in charge of this some discretion within the seven days.

But my undersetting is that the order was sort of as early as possible, but no later than seven days. Uh. It's hard to figure right now out exactly how Department Homeland Security is executing that executive order, but I think Biden may clear that he wanted it, if all possible, to be immediate and just provided the seven days as

a little bit of a great period. If you know certain prices can't be stopped immediately or that, uh, you can imagine right that, you know, certain things might have to be kind of seen forward, because to stop immediately maybe worse than to sort of, you know, finish whatever they were doing in a situation. But but I see my DJs was ordered to stop things that can be stopped as early as possible. Thanks for being on the Bloomberg Laws show. Rick that's Professor Rick Seu of the

University of North Carolina Law School. A high school football coach insists that he has the right to kneel down and pray on the fifty yard line after a game, and he's taken his case to the Supreme Court once already.

Now the Ninth Circuit Court of Appeals will discide whether Joe Kennedy's prayer is the sort of private religious act protected by the Constitution's free speech clause, or whether the prayer at the focal point of a public school event is the kind of public speech the school district has the right to restrict. The lawsuit against the Washington State School District could clarify and shape the workplace free speech rights of millions of coaches, teachers, and other public employees

of all faiths. In the circuit joining me is Stephanie Barkley, professor at Notre Dame Law School. If this were done in a classroom, what he did on the field, is it clear that it would not be protected speech. So if a teacher were to offer a prayer in the classroom in a way that is, you know, really pressuring or coercing students to participate, then the Supreme Courts case laws definitely suggests that that would violate the Establishment Clause.

It's not clear, though, however, that if the teachers, sitting at their desk at the front of the classroom set a quiet prayer over their lunch, for example, that that would violate the Establishment clause. And Justice Alito analogize what the coach in this case is doing too, sort of a quiet private prayer of that type. So, even within the classroom where Establishment Clause protections are heightened, it's not as though the rules clearly is that a teacher must

be precluded from doing anything religious. So explain what the coaches argument is he has a few arguments that he's arguing. First of all, that there's no captive audience. When he goes to pray at the fifty yards line after a game to just sort of give thanks for how the game went. He's not requiring anyone to participate the audience. He isn't stuck there in the way that students are in a classroom, and so some of the course of elements that we worry about in the classroom just don't

apply in this particular context. And he's also arguing about the sort of slip Reslow arguments on the other side that if anything is teacher or coach does any time there was an eye side of students, then that's going to count as something that's within their official job capacities. That that really crowds out the ability for individuals and these positions to have any sort of religious exercise or

to act consistent with their faith. So the school district says, in part in its response that it would be violating the First Amendment prohibition against state establishment of religion if

it allowed these prayers to go on. Well, some of the Supreme Court president of the establishment clause dating back to Okay called Everson is concerned about ways in which government might use power of education over impressionable students when they're in situations where they can be pressured or course to do things, to participate in different sorts of religious exercise. And so there's a case a lot about not coercing students to pray in school or to participate in other

sorts of religious activities. And so the school is analogizing, appointing to some of that case law and saying here, if we allowed this sort of activity by the coach to go forward, then we'd be running into some of those prohibitions where the Supreme Court has interpreted the establishment clause. So is the school basically afraid of getting sued by parents? I think that that that is a concern that they're raising.

Whether or not the parents would win or that would actually be a strong claim as a different question, but that's certainly the sort of argument that they're making because that they could run into other sorts of prohibitions on the other side if they are too permissive or accommodating of this coach. Where does it play in that he's a coach in a position of authority and when he praised in the middle of the field, his athletes may

feel pressured to pray with him. I think that was one of the things that the Supreme Court was suggesting. This case went up to the Supreme Court previously, and the Supreme Court denied for Frary, and then it went back down to the Ninth Circuit. And one of the reasons that the Supreme Court explained it was denying the case, then it's because there were some factual issues that seemed to be unresolved. So unresolved factual questions like was the

coach really on duty or not? Is this really sort of part of his job performance, and I think the facts that might be relevant to this question, or do students actually feel pressured to to participate? Is there any evidence of that, because that's something that the government can't just sort of make a claim about that, you know, they'd have to really back up that sort of an argument.

But the Supreme Court did seem concerned about the fact that if a teacher, just because they're a role model or just because students look at them a teacher a coach can't engage in any outward manifestation of religious space. That would be a pretty remarkable expansion of the law in a way that at least just as Aldo was suggesting, would be problematic. This case has been going on for

some time. Stephanie, tell us what's been happening procedurally, right, So, when he was first bringing this case, it was um based on the school district decision to let him go because he was giving a prayer um at the fifty yards length. And there's some history about what had led up to that prayer, but we can talk about that later. But so that was appealed to the Ninth Circuit and he last then it was appealed to the Supreme Court, and all of this is sort of in a preliminary

procedural posture. The Supreme Court said there were too many factual issues to take the case, that they were concerned about the way that the Ninth Circuit had described the legal standard, and they sent it back. So now the

case has traveled again through a district court proceeding. There was just a oral argument at the Ninth Circuit this week about the case, and then we'll see if if they rule against him, then I imagine he'll probably applied as a suprememporting and and if they rule for him, then it will be a question of whether the school board wants to appeal to the Supreme Court or not, and of course review at the Supreme Court's discretionary so the court can decide whether it wants to take that case.

During the proceedings below, did he explain why he had to pray at the fifty yard line after the game while their players on the field, so that his attorney was asked about that in oral argument and and just described his religious beliefs for that he needed to immediately give gratitude um for the game. He was willing to wait until all the players exited the field um, and so you know, there was no need for him to be in view of the players. He said he would

have been okay even waiting like five minutes um. And for a number of years he had agreed with the request from the school district not to say any prayers where students were particip the painting or we're doing it at the same time as him, you know, some of

his students or athletes. So I'm that that was just the way that he described his religious belief that the school board asked him basically did to the prayer at a different times somewhere else, and he says that would just be contrary to what he felt compelled to do to show gratitude to God. So, now listening to the Ninth Circuit arguments, were there any issues that the judges were particularly focused on. The judges were focused on a

few things that I thought were interesting. That there was a lot of trying to make sure they understood the timeline and UM, making sure that they knew whether or not there has been any coercion of students involved, or were they they had felt coerced because that's relevant to some of the establishment cluster as prudent and so UM Coach Kennedy's lawyer was arguing that, you know, after he had received the request from the school district years ago

not to involve students, he had confided that, UM, there are no clear complaints that are focused on his behavior, and after that, he's having the prayer on his own, not involving students, and UH, and the court was just trying to make sure they understood the student involvement and how that that might affect their experience at the school.

They were also interested in, UH, some the other claims that coach Kennedy brought under the Free exercise class and under Title seven that he was being discriminated against for his religious leaves. And the judges seemed interested in trying to figure out had the school board actually tried to offer an accommodation, had they actually been protective as his

religious leaves um? And was the rules that the school board had espoused in its communication with the coach too broad such that it would have really troubling effects on basically stripping any sort of public employee of their ability to practice their religion at all anytime they were in

view of students. So one of the judges, Judge Morgan Christian, said, I strained to see this being a brief, personal, private prayer because the coach had expressed his plans and media interviews and social media posts and talks to local churches. How did that question He seems like he's expressing his opinion there. Yeah, And that was that was definitely an

important part of the argument. The attorney's response there was that, um, you know, private in the sense that he's not including the student, he's not, um, you know, trying to include other members of the audience. There has the media about him defending his right to continue to do that and so he's trying to, in the court of law and the court of public opinion, try to defend his ability to continue. But that doesn't mean that the prayer itself.

He's trying to make it a spectacle. And we know that this is the panel that refe used to grant t r O, which is a different standard. But still, did you see the court leaning in any direction? I think that the court is gonna be probably engaged in

a pretty fact specific analysis here. And there were a couple of times where the court was describing what they thought the timeline had been or what involvement of students had been, and sometimes attorneys on both sides were correcting them and pointing them to other areas in the record.

So I think the court's ruling is likely going to focus on whether or not when they go back and look at that record evidence, the photos, the videos, and i'm in the declarations from students, doesn't seem like there is some sort of actual coercion going on here or not. Um, I think it's likely that we'll see a ruling in that vein. I'm not sure if they will address if you're exercise or the title seven arguments at much length.

But I think that's those fair important part of the case, and one that the Supreme Court for Justices at the Supreme Court when this came at last time, signaled that that they're interested in and they think um would have had enough merit that would have been worthwhile to consider. The last time around, you mentioned that before the court the Supreme Court didn't take the case, but explained that opinion by Justice Alito and who joined in it. That's right.

So the Court declined to take the case on this free speech grounds because they said that there were some a lot of factual issues about whether or not he was on duty or off duty, or what exactly was sort of involved in the scope of his teaching, and what the school district was requiring surrounding that. So that's what they were saying about the speech claim. But that's why they denied the cert petition. At least, this is

what Justice Alito's um concurring opinion said. But Justice Lado said, no party has asked us to consider whether the district court, or excuse me, the school district was also violating Title seven, or the Free Exercise Clause in the First Amendment of the Federal Constitution. And indicated that there was some interest in considering those issues. And then um, there were three

other justices that joined on to that opinion. So just suppose this case goes up to the Supreme Court that seems to indicate there are at least four justices on the Coaches side. Let's say put it colloquially on the Coaches side, and then you also have Justice Amy Coney Barrett. And this is a court that is very protective of religious rights and seems to in the last few years, even before Justice Barrett lean in the direction of religious rights.

Do you have any doubt that they would consider that this was within the coaches religious freedoms? I think what we can say with confidence is that the Court seems interested in reviewing those claims very carefully. I think the Court would I want to make sure that they understood some of those facts that they had questions about last time. Um, And you know, I can't predict necessarily how they would rule, but I do think that they would not rule the

way that they were concerned. The Ninth Circuit had been sort of leaning towards previously that that any time a public employee is in view of students, they can't do anything religious such that a teacher would even get in hot water if they set a private prayer over their

lunch and view of students. So I think what we can confidently say is that sort of ruling is out of bounds, and that the Print Court would if this case made it up to the Supreme Court again, the Sprint Court will pay a lot of attention to those other claims involving not just history speech tripes, but his pre exercise rights um and his rights under Title seven. Thanks for being the Bloomberg Laws Stephanie. That's Stephanie Barkley, a professor at the University of Notre Dame Law School.

And that's it for the sedition of the Bloomberg Law Podcast. I'm June Grosso. Thanks so much for listening, and remember you can always get the latest legal news on our Bloomberg Laump podcast. You can find them on Apple Podcasts, Spotify and wherever you get your favorite podcasts. You're listening to Bloomberg