This is Bloomberg Law with June Grosseol from Bloomberg Radio.
Several protests in New York City over the arrest by ICE agents of Mahmoud Khalil, a former Columbia grad student who was the lead negotiator and spokesman during protests against Israel on campus last spring.
This is a.
Movement, an anti war movement.
We have sparked similar Gazza solidarity encampments across the nation and even across the globe.
Secretary of State Marco Rubio revoked Khalil's green card under a rarely used provision of the immigration law that allows for revocation when a foreigner's presence is detrimental to US foreign policy.
This is not about free speech. This is about people that don't have a right to be in the United States. To begin with, No one has a right to a student.
No one has a right to a green card.
By the way, New York federal Judge Jesse Furman has blocked Khalil's deportation while he considers the case. Joining me is immigration law expert Leon Fresco, a partner at Holland and Knight. He was the head of the Office of Immigration litigation in the Obama administration. Leon tell us about the provision of the immigration law that the Trump administration is using to try to deport Khalil.
So, there is a statute, which is Title eight USC. Twelve twenty seven, which lays out an entire list. It's basically a menu of choices that the government can use to say why they're deporting someone. And so if you meet any of those grounds, you could be deported based on one of those grounds. And so the ground that the government has chosen is the one called foreign policies.
The exact word, say, an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy
consequences for the United States is deportable. So what Secretary Rubio is saying is that he has the sole, unreviewable discretion to decide that any person who is not a citizen of the United States can be deported if he believes that their presence in the United States would have potentially serious adverse foreign policy consequences, and he has decided that this Mahmoud Khalil beats that criteria because of the conduct that he committed in the university.
So is it true that it's solely up to the Secretary of State that there's no court review.
Well, so this is where there's a debate right now. There's a famous case that actually the sister who's now deceased, the sister of President Trump, Mary and Trump Berry, when she was a district court judge in nineteen ninety six, said that that statute was not constitutional because it was too vague, because it did not allow for an opportunity for the non citizen to actually be heard and be
able to make any discussion about this. But then the Third Circuit, which at that time had Judge Alito who's now Justice Alito on it, actually vacated the judgment because they had to go through the ordinary immigration process, meaning a federal judge couldn't hijack that process, which is one of the issues that Judge Furman is going to have
to deal with. This Can he hijack this and make this analysis now or does it have to go through the whole immigration process first, and then you can make the challenge at the end if you still been't ordered deported. So the point is we don't know yet if this
law will be ruled unconstitutional or not. The problem is there was a similar law in the nineteen sixty two case of Heiresiatis versus Sean, which talks about this concept of you could deport lawful permanent residents aka Green card holders if they were not just communists, they could have been past communists, meaning if at any time in their life they had ever espoused communism, you could deport them. Even if they had ten US citizen children and a
US citizen spouse, et cetera. Didn't matter. And the Court in Heresiata said, yep, if Congress makes a ground of deportation and it's in a statue and it's law, we're not going to declare that unconstitutional. You change it if you don't like it, makes the Congress change the law. And so the question will be whether this Supreme Court in twenty twenty five, seventy five years later, thinks that that's true, that there's no constraints around this ground of deportations.
Before you get anywhere near the constitutional question, there's an issue of jurisdiction that New York Judge Jesse furmanh has to decide in this habeas corpus petition that Khalil's lawyers have filed habeas, basically being a request that the judge require the government to bring a person in custody before the court. Because right now Khalil is being held in Louisiana, more than one thousand miles away from where he was arrested.
Obviously, there's going to be a larger discussion about whether a habeas is even the appropriate mechanism for challenging these kinds of decisions. But first we have to figure out what's the right court to even make any of those decisions in that's what we're fighting about now. And so the question is would New York ever be the right forum given that the detention facility for the people who are detained in New York for immigration purposes is in
New Jersey. Number one, and then also number two that at the moment that the person filed the habeas, which was at four in the morning or whenever they filed it, they were already detained in New Jersey. So the human body had actually left New York and was detained in New Jersey. Then after that the person is transferred to Louisiana. And so the government is saying, well, since they're in Louisiana.
That's now where the habeas has to be filed. And so now what the court has to debate is whether that transfer to Louisiana was done for nefarious purposes to evade jurisdiction in New York or New Jersey, or whether it was done for a legitimate reason like that there
was no detention space in New Jersey. And so the court is going to have I think a tough time saying that the case should be in the Southern District of New York because mister Macmoud Khalil was not in New York when the habeas was filed, and there was nothing irregular about having him in New Jersey because that's where the immigration detention facility is for New York City. So I do think it's possible that he will at least be reassigned to New Jersey.
You mentioned the issue of whether the transfer was done for nefarious purposes. Khalil's lawyers called shipping him to Louisiana a shell game by ice designed to take him out of the New York Court's jurisdiction and isolate him far from his lawyers and his family. I'll just mention that Louisiana is in the Fifth Circuit, which is the most conservative circuit court in the country.
Certainly, there are some strong arguments that they're making that the court is going to have to grapple with with regard to whether the transfer to Louisiana serve some purpose other than evasion of jurisdiction. And that is in a twenty ten opinion in the Supreme Court about Guantanamo and about transfers and habeas jurisdiction. So there is pretty good case law that discusses what courts are supposed to look
at with regard to these transfers. There's a difference certainly between Louisiana and New Jersey with regards to access to the detayee and closest to the family, and even the Third Circuit versus the Fifth Circuit. So those things all matter. But the point is it may not end up mattering with regard to this particular judge in New York City because it seems difficult to figure out how he has jurisdiction in New York City when the habeas was filed when the person was in New Jersey.
The Trump administration has said that Khalil is a threat to national security. His lawyers say, he's just a protest exercising his free speech rights. When does that issue get litigated.
Here's what's interesting about this. Once you take this ground of deportability, which simply asks the question as to whether the Secretary of State has reasonable grounds to believe that this human being's presence in the United States can cause serious adverse foreign policy consequences. Once that's the issue, what the human being did is irrelevant in that sense, that
is not part of the determination. The determination if there is going to be quote unquote a trial, which is going to need to be a decision, by the way, is there even a trial. The trial will just be about whether the Secretary of State has reasonable ground to believe that this would have foreign policy consequences. So you would be an interesting thought experiment. Why couldn't Secretary Rubio just get picked any country in the world, just pick
one and have them issue an affi. David say, yeah, we would be very upset if the US kept this person into the United States, and in that scenario, you've met your burden significant adverse foreign policy consequences. If this person remains in the United States, the court will have to decide whether that's a constitutional statute, but it certainly would have meant the factual threshold, which has nothing to
do with terrorism. In the end, the threshold in this statute is just whether this human being's presence in the United States would cause serious adverse foreign policy consequences for the United State.
Faith wouldn't a court be reluctant to substitute its opinion for the Secretary of States in a matter of foreign policy.
It seems very likely that that will be true, but we will have to wait and see. And so I think what the student is going to say is, Look, the Secretary of State doesn't have any reasonable ground to believe that my individual presence, as just one person is going to affect US foreign policy? Why would they think that? So that's going to be their argument, and maybe a court is receptive to that argument.
So Rubio said, this is not about free speech? Is he right?
The question is does the First Amendment provide a defense to this deportation ground? So this is where the heresiatis versus Shaughnessy case says that the First Amendment basically doesn't apply to any deportation ground. At the end of the day, it's not a defense to any of them, because these issues involving non citizens are given such deference that when the Congress actually passes the law and the President signs it, the courts aren't going to overturn a ground of deportation.
They're just going to allow it to remain. But is that even relevant to this ground of deportation? Because maybe Rubio's doing it to placate that other countries so that there aren't serious adverse foreign policy consequences, then why isn't he within his grounds to do that? And so you do that? Plus the jurisdictional issues, whether it's avieas and whether it's challengeable at the beginning or whether you have to wait till the end. Those are the players. That's the real complication here.
So many complications in this case. Thanks so much for explaining them to us. Leon. That's Leon Fresco of Holland and Knight. Coming up next, the Supreme Court is taking up a case involving a ban on conversion therapy, and that's causing some concern. I'm June Grosso. When you're listening to Bloomberg, your parents.
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The movie boy Erased is about the gay son of ultra religious parents who sent a conversion therapy to change his sexual identity. It's based on the memoir by Garret Conley chronicling the abuses of that therapy. About half the states now bar conversion therapy for minors, and all major medical and mental health organizations have condemned the therapy as unscientific and potentially dangerous for young people, increasing the risk
of depression, substance abuse, and suicide. And now the Supreme Court has decided to take up a First Amendment check challenge to Colorado's ban on conversion therapy from minors. A licensed counselor who says she views her work as an outgrowth of her Christian faith, claims the ban violates her free speech rights. My guest is First Amendment law expert Caroline Mallet Corbin, a professor at the University of Miami, law school Caroline tell us about this case.
The Supreme Court has granted THR meaning it will hear a case involving a law that bans what is known as conversion therapy. It's more official designation is sexual orientation change efforts, and this is basically an attempt to make gay kids straight, that's their historical origins. More specifically, the law says that licensed counselors cannot practice conversion therapy on minors.
So if you want to undergo this so called counseling as an adult, you are allowed to, but licensed practitioners of mental health cannot practice conversion therapy on minors. I also note that there is an exemption for therapists engaged in the practice of religious ministry. So the reason why the law has banned conversion therapy is that it is unscientific, harmful, and futile. So all the reputable medical associations have come
out against it for two reasons. One, you can't change someone's sexual orientation, and second, studies show that it actually hurts kids. So, for example, one study found that even holding constant other valuables, the children who have been subjected to this therapy or twice as likely to think about suicide and at least twice as likely to try suicide.
So states who have a long history of regulating the medical profession and ensuring that practices conform with standard care decided this is not a practice we should allow in our states, and Colorado is one of about twenty states that therefore have forbidden this practice four licensed medical professions as applied to kids children under eighteen.
So what does the counselor's speech claim turn on?
The legal question turns on whether you think of counseling as conduct the practice of medicine, or you think of counseling as pure speech. And this matters because the government has a lot more viewway to regulate the practice of medicine, even if it incidentally affects speech, then it does regulating speech. Generally, the presumption is that if the government is regulating speech because of its content or viewpoint, if it's trying to tell people what they are allowed or not allowed to say,
that kind of content regulation is presumptively unconstitutional. Generally, we don't want the government deciding what we're allowed to say or what we're allowed to hear. So if this is considered a regulation of speech, then it is problematic under the free speech clause. It's not automatically unconstitutional, it's presumptively unconstitutional.
On the other hand, if it is viewed as the regulation of medical practice the regulation of conduct, then the state is going to have a much easier time showing this is just ensuring that people who are licensed by the state are meeting standards of care in the medical practice. And this is something the states have always done regulate what doctors can and can't do, and including folding into that what they can and can't say as part of their practice of medicine.
The tense Circuit Court of Appeals, in a divided opinion sided with Colorado, explain what their reasoning was.
Okay, here's the thing. This is not the first time court has ever encountered the question of how should we think about regulation of medicine even if it involves speech. And the backdrop to this case is the Supreme Court's ruling about abortion counseling. So this case is about mental
health counseling. There is precedence on abortion counseling. By abortion counseling, I mean the laws in many states that require doctors before they provide an abortion to a woman requires the doctors to read, often a state dictated script about the dangers and perils of abortion and about the alternatives to abortion. So just about every state requires that abortion providers say this script or provide this information to women before they
are allowed to have an abortion. And doctors challenge those regulations as violating their free speech. They said, you are compelling us to say things that aren't necessarily accurate and certainly not what we would normally say under our normal practice of medicine. And the Supreme Court upheld the abortion counseling on the grounds that it was not a direct regulation of speech, but a regulation of the medical profession
that happened to affect speech. So basically, the precedent that the Tenth Circuit relied on was precedent the Supreme Court had created when ruling about abortion counseling. And so the Tenth Circuit to just said, listen, if the state telling the doctors what they must say to women before they have an abortion, if abortion counseling is merely the regulation of the medical profession, then surely the regulation of a kind of therapy in mental health counseling is also the
regulation of medicine that incidentally affects speech. That was the argument that the Tenth Circuit made to support their claim that this is not a direct attack on speech, it's a regulation of medicine.
In twenty twenty three, the Court with you used to take a challenge to a similar ban in Washington State. That was over the dessense of three justices, Conservatives Clarence Thomas, Samuel Alito, and Brett Cavanaugh. So that means that they've gotten at least one other justice on their side, because they need four votes to take a case.
Exactly right. So generally one of the major reasons that the Supreme Court will decide to hear a case is if there's a circuit split, and there is a circuit split on this issue. So the Eleventh Circuit has held that these bands violate free speech clause, and the Ninth and tenth have held no, they are perfectly constitutional. And there was a split even a couple of years ago. But as you explain, the Supreme Court doesn't hear every
appeal that goes before it. They only hear an appeal that at least four justices want to hear, And in twenty twenty three they were not four, but this year there are four, so that's enough to hear the case. We don't know who the fourth is because they don't announce who they are. I mean, we can guess that the dissenters are three of them, but we don't know who the fourth is. Now.
I can't give one hundred percent guarantee on this, but it's most likely that the fourth vote is one of the other Conservative justices. Does the fact that it's the Conservatives that want to take this case up tell you that they're looking to reverse the Tenth Circuit, in other words, strike down the ban on conversion therapy.
Personally, I am always nervous when the Supreme Court grants circ in a case involving a Conservative Christian who wants to inflict some kind of harm on a vulnerable community like the LGBT community, because I think the Supreme Court is exceptionally receptive to the claims of conservative Christians, and I think they real they don't show much care about the consequences of the religious practices of conservative Christians and how they harm those in the LGBT community. So I'm worried.
On the other hand, at this point, we know there are four votes but we don't yet know if there are five votes though that is not all that reassuring, but at least it's not a completely foregone conclusion.
Caroline, the licensed counselor, is being represented by the Alliance Defending Freedom, which is a conservative Christian law firm and advocacy group that has one case is at the Supreme Court before in Colorado involving the baker who didn't want to bake cakes for gay weddings and the web designer who didn't want to design websites for gay couples, even though no one had actually asked her to design a website for a gay couple.
Yeah, the group that's bringing this is a group that regularly brings challenges to anti discrimination laws on behalf of conservative Christians, and this is yet another one, and they've had incredible success before the Supreme Court. They were also the group that challenged California's attempt to require crisis pregnancy centers, which often pretend to be comprehensive medical centers when they're not.
They're just anti abortion places that try and lure women into their doors to try and prevent them from having an abortion. Anyhow, California tried to deal with this practice by requiring crisis pregnancy centers to let people know that they were not, in fact a licensed medical provider, even though they often pretended to be one, and the Supreme Court held that violated the crisis pregnancy center's pre speech
rights as well. So there is definitely a pattern of cases brought claiming free speech violations of regulations that are designed to protect from harm and to protect from discrimination, and these are getting struck down in the name of pre speech.
The oral argument should be interesting, but we won't hear them until the Supreme Court's next term, which starts in October. Thanks Caroline. That's Professor Caroline Malik Corbin of the University of Miami Law School. Coming up next on the Bloomberg Law Show. It looks like New York City Mayor Eric Adams is going to score a get out of jail free card. I'm June Grosso and you're listening to Bloomberg.
New York City Mayor Eric Adams was one of four Democratic mayors of sanctuary cities to testify before the House Oversight Committee last week, but the criminal corruption case against Adams took center stage as the mayor was grilled by several Democratic lawmakers about the allegations that the Justice Department agreed to dismiss the charges against Adams in return for his helping the Trump administration with its efforts to deport immigrants.
California Representative Robert Garcia quized Adams.
And Mayor Adams. I also want to be very clear, are you selling out New Yorkers to save yourself from prosecution.
There's no deal, no quick pro qual and I did nothing wrong, and anything dealing with this case had a deference to Judge Hoe, who's now addressing it. I'm going to refer to his actions.
Well, mister Mayor, it appears to me at least that you are selling New Yorkers out. It appears that you are working with Tom Homan, who is clearly clearly focused on family separation and deportations.
And now it appears that Adams will almost certainly score a get out of jail free card. Paul Clement, the former US Solicitor General appointed by Judge Dale as a friend of the Court, has recommended the case against Adams be dismissed permanently. Joining me is former federal prosecutor Robert Mintz, a partner maccarter and English Bob explain why Judge Hoe appointed Clement.
Judge Dalejo took the very unusual step of appointing Paul Clement, who had been the US Solicitor General during the George W. Bush administration and has argued more than one hundred cases before the Supreme Court, to give him advice with regard to how to handle this dismissal motion, essentially based upon his view that he was getting a one sided argument.
In other words, both the defense lawyer and the government in this case were seeking to have the indictment dismissed, and the judge wanted to hear the other side of the argument. That's why he appointed Paul Clement to give him advice as to what issues he should be considering, really what his options were here with regard to this motion.
Clement wrote a thirty three page brief. One important point was that the executive branch is the one that chooses when to prosecute and when not to prosecute.
You're exactly right that Paul Clement did not really get into the merits of these arguments from both sides. If you recall, the acting Deputy Attorney General had ordered this Southern District to dismiss the case, and there were a series of prosecutors, including the acting US Attorney at the time, who resigned rather than follow that order, saying that the reasons for the dismissal were improper, that it was about
politics and not about the merits of the case. But ultimately, mister Clement concluded that the judge here doesn't really have much in the way of options. That essentially, if the executive branch, meaning the prosecution and the Department of Justice, choose to dismiss the case, there's not much the judge
can do about it. He pointed out that ultimately, even if the court were to order the case to go forward, could simply run out the clock, in other words, do nothing with the case until there was what's called a speedy trial violation, and then the defense would move to
dismiss the case. So short of appointing a special prosecutor, which is rarely done, and it's possible that it's not even constitutional to do it in this circumstance, mister Clement recommended to the judge that there's really nothing for him to do here but to grant the dismissal, and that's why he didn't get into the back and forth between the former Southern District prosecutors and the Department of Justice as to the motivations behind this motion to dismiss the
indictment against Mayor Adam.
Clement didn't discuss the evidence against Adams, the strength of the charges against him, he wrote, private citizens and courts can't force a prosecution, no matter how clearly someone has violated a federal criminal statute. Of course, the Justice Department didn't discuss the evidence when it first ordered the missile.
If you remember, it was made explicit by the acting Deputy US Attorney Emo Beauvat that this directive to dismiss the case was not done on the merits. He expressly said that he was not looking at either the evidence or the legal theory behind the case. Now, in a more recent filing by the Department of Justice, they did
mention the merits of the case. So they have shifted slightly to argue in papers they filed before the court that the legal arguments underpinning the bribery charges against Mayor Adams,
they said, was weak. That is something that is within the scope of the Department of Justice certainly to consider in deciding whether or not to continue to pursue the case, but it really wasn't the driving force, and they again reiterated the earlier statements that the prosecution of Mayor Adams would interfere with his ability to cooperate with this administration moved to crack down on illegal immigration, and that really, as the basis to see, could dismiss the indictment at
this time. There is I.
Believe, just one line in the thirty three pages where Clement says there's evidence that suggests the decision to dismiss the indictment was undertaken in bad faith. So that's one line dropped there, referring to, you know, Emil Beauvey's order to dismiss the indictment being in bad faith. Where does the judge weigh that?
Mister Clement did make mention that the evidence quoting here suggests the decision to dismiss the indictment was undertaken in bad face. The Department of Justice has made the argument that the prosecution was politically motivated. Ultimately, Paul Clement decides that the judge does not have to weigh in, and it's unnecessary for him to determine whether or not the case was politically motivated from the start, or whether or not this dismissal was motivated by some kind of improper
political means. Meant said ultimately it was unnecessary for Judge Hoe to settle that dispute under either view. He wrote, there was little justification for allowing a potential reindictment of the mayor, and that's why he recommended to the judge
that he grant the motion to dismiss. But unlike what was requested by the Department of Justice, he said that that dismissal should be with prejudice, in other words, to be dismissed in a way that the prosecution could never bring the case down the road, and that would eliminate the potential for critics of this decision to be able to argue that the Department of Justice was trying to have it both ways, was trying to have the case dismissed now but leave the prospect of bringing that indictment
down the road in order to try to continue to influence the mayor to cooperate with the Trump administration's immigration policies.
Bob Clement wrote that if the charges weren't dismissed with prejudice, meaning they couldn't be brought aga again, they would hang like the proverbial sort of damocles over Adams. But if you have a public official who's been charged with corruption and the chargers are being dropped for political reasons, why should he be given a free pass.
I think what mister comment was getting at is that one of the reasons that the Southern District Prosecutors objected so strenuously to this dismissal is that they argue that in meetings with the Defense Council there was discussions that
amounted to essentially a quid pro quo. In other words, there were discussions about the mayor's ability to continue to cooperate with the Trump administration in its immigration enforcement policies, and whether or not the indictment and the trial that would be upcoming would interfere in the ability to do that, and in acknowledging that it would that obviously, any criminal trial of an elected official is going to take away their attention and their time from carrying out their public duties,
that that was a reason to dismiss them at this time. The Southern District prosecutor said that was essentially a quid pro quot In agreement on the part of the mayor to support the Trump administration in exchange for a dismissal of the criminal charges, and the Department of Justice, I think was responding to that by saying, we're not asking for a dismissal that is permanent. We're not asking to bar the prosecution forever. We're just saying it should be
dismissed at this time until after the election. And that's why the Department of Justice was asking for the dismissal
without prejudice. But mister Clement said that the quid pro quot that was hanging over this whole dismissal was something that could only be eliminated if the dismissal was with prejudice, and that way, the argument that the mayor would be taking any actions in order to curry favor with the Trump administration would be removed because there would be no possibility that the Department of Justice could indict him down the road if you failed to cooperate with the Trump
administration immigration policies.
Mean talk about a get out of jail free card for Adams because he was accused of agreeing to a quid pro quote. Now the whole case is going to be dropped against him. It doesn't seem like equal justice under the law.
Now. I think a lot of people are very troubled by this whole scenario. Ultimately, mister Clement concluded that the judge's hands were tied, that he really had no ability to fight the dismissal. If the Department of Justice had decided, almost for whatever reason, to dismiss the case, the judge had no choice but to do that, but to follow through and to dismiss the case. And he even advised against an extensive judicial investigation into the Department of Justices actions.
In other words, he didn't even think it was necessary for the judge to delve into the motivations behind the Department of Justice to seek the dismissal, or likewise, the motivation for the former Southern District prosecutors for refusing to follow that directive. Mister Clement wrote into his submission to the judge, when the publicly available information is sufficient to inform judicial decision making, there are sound reasons to avoid
further inquiries. So he basically concluded that nothing good could come of digging into this further, and that the judge did not have discretion here to refuse to dismiss the case, and there was really no reason to get into this dispute between the former Southern District prosecutors and the Department of Justice about who was right, who was wrong, who was insubordinate, and who was acting properly with an ethical guidelines and who was acting based upon political motivation.
Judge Hoo doesn't have to accept Clement's recommendation, but does it seem likely that he will.
Absolutely. Judge ho is not legally bound to accept mister Clement's recommendation, but he did independently seek out his guidance, and it seems likely that he's going to follow the recommendation of mister Clement, certainly to the extent that he
ultimately dismisses the case with prejudice. And I think again that resolves the question of the Trump administration or the Department of Justice using this dismissal as sort of a cudgel hanging over the mayor's head to stay to the mayor, in so many words, if you don't follow our directive and if you don't cooperate with the immigration policies of his administration, there's always the possibility that this indictment comes back again that it gets reinstated and that you're once
again facing criminal charges. By dismissing the case with prejudice, that threat is essentially eliminated.
And it seems that Judge Hooe's decision is imminent because he canceled a hearing that was scheduled for Friday, saying he does not at this time believe that oral argument is necessary. So most likely they'll be good news soon for the mayor. Always a pleasure, Bob, thanks so much. That's Robert Mints of McCarter and English. And that's it for this edition of The Bloomberg Law Show. Remember you can own always get the latest legal news on our
Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg