5-3-25 The Weekend Hour 2: Federal Judges Are Destroying the Rule of Law at the Border

Episode Transcript

Speaker 1 (00:00):
Broadcasting Life from Denver, Colorado. It's the weekend of Michael Brown.
Really happy to have you joining the program today. The
first rule of engagement is pretty easy. If you want
to engage with the program, send me a text message
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Mike or Michael. Tell me anything, ask me anything, and

(00:20):
give me a follow over on social media on the
X platform formerly known as Twitter, and my handle is
at Michael Brown USA at Michael Brown USA. So go
do those two things right now, Chop chob. So yesterday
on my local program, I started talking about a case
that arises out of the Federal Eastern District Court of

(00:41):
California and a judge by the name of Jennifer Thurston,
and I did have time to finish the program, so
I told all the all of the local audience come
and listen to it today because I wanted to get this.
I wanted to get this in before something changes, because
you know, when you look around at everything that I
know it's being driven by Trump primarily, but I also

(01:04):
think just life in general is just speeding up. I mean,
someone's fallen asleep and their foot's on the accelerator, and
the news and the changes and everything just keeps going
wam bam, thank you ma'am, and it's just not stopping.
So I sometimes we're not across these stories. And when
I do show prep and I put together my pos

(01:26):
my pile of stuff, I have to go through it
like every forty eight hours or so and just throw
stuff away because it's you know, the bureaucrats have a
great term that they use called OBE, and that's not
the order of the British Empire overtaken by events. And
so there are some stories I look at that I think, wow,

(01:48):
this is I was gonna do this story, but I
never got to because there were some other more important
stories and then boom suddenly it gets OBE and it's like, okay,
now I go go back and research it again. So
I want to do this story now because in a
way it is an example of how let me back

(02:09):
up yesterday. I know this is on Thursday, because this
is what prompted me to go look up this case
on Thursday. Now. I live at a relatively I used
to say. I would have said one time, maybe ten
years ago, that I live in probably the most conservative

(02:30):
county in Colorado. I live in Douglas County, Colorado. It's
a suburb of south of Denver. It's about twelve miles
from where I'm sitting right here. Douglas County has changed
over the years as more and more people have moved
into that county. It is I mean, it still, don't
get me wrong, it's still predominantly conservative, but it's certainly

(02:51):
beginning to change. And I noticed the changes in subtle ways.
One of the ways that I noticed it on Friday,
either it must it's Thursday. I noticed this. I'm coming
back through a major intersection. It's a let me see
it be a six lane intersection, three lanes every direction

(03:13):
plus turn lanes, and I knows it's backed up and
it's the middle of the enp. I can't figure that
why it's backed up. It's like maybe three thirty four
o'clock and that area is not usually backed up at
that time of day. And as I get clos right here, honking,
and I'm and then I see it and I'm like, oh,
there's a whole bunch of people with placards and posters

(03:34):
and flags and everything. And I'm thinking, to somebody on
strike it's not an election. I'm trying to figure out
what the hell's going on, so you know knows me.
I got to get over in the right lane so
I can see what the placards say. And you know,
and if I were so inclined, but I would never
do this, you know, roll I went, you know, roll
the window down and scream at people. But of course

(03:56):
I didn't do it. And by the way, who rolls
down a window anymore? You don't roll a window down.
You gotta be pretty old be rolling down a window.
They were some of the signs were impeach Trump, and
I thought, for what, And then I looked at the
other signs, and it was like, we don't deport children,

(04:19):
or do not deport children, or it is immoral to
deport children. And of course I'm thinking about children. We
haven't deported any children. Now. There are some children that
have gone home with their parents who are illegal aliens.
They may have been American citizens, but they were miners
and the mom got to choose. And by the way,
we do separate families in this country all the time.

(04:46):
Mom or dad get convicted of a crime, they get
sent off to prison. And if it's a single mother
or a single father. Then the child is either turned
over to the custody of a grandparent or a relative, or,
in many unfortunate wis, they might get turned over to
the state and next thing you know, they're in the
foster system. It's awful, but we separate children, We separate

(05:09):
families all the time. Or you get a military family
where mom or dad wants them is a member of
the military and they get shipped off for overseas assignment
and mom or dad, whichever one's the custodial parent that's
not a mayor of the military, stays back. So I'm
just looking at this crowd and I'm thinking, you don't
really have a freaking clue what you're talking about. So

(05:32):
let's go back to April twenty nine. Last week, Judge
Jennifer Thurston, who is one of the federal trial judges
in Eastern District of California, announced just announced in one
of her rulings that Customs and Border Patrol and Immigrations

(05:52):
and Customs Enforcement officers can no longer rely upon the
exact statute that Congress drafted for those men and women
of the Border Patrol in Ice to use when pursuing
an unlawful entrant. As I pointed out last or yesterday,

(06:15):
it's called the Illegal Immigration Reform, the Illegal Immigration Reform
and Immigrant Responsibility Act of nineteen ninety six. Now, who
was president in nineteen ninety six. Do you remember who
it was? It was a guy with the name of
Bill Clinton. Do you remember who was in charge of

(06:43):
the House in the Senate in nineteen ninety six, Republicans.
The point is Republicans and Democrats worked together to pass
this legislation, the Illegal Immigration Reform and Immigrant Responsibility Act
of nineteen ninety six. And as I started explaining yesterday,
the bill does several things that I really want you

(07:05):
to focus on. First and foremost, It enhanced border enforcement
and security. It increased number of border patrol agents. It
mandated to constraint. It didn't just say you can. It
mandated Clinton to start using fencing and other barriers in
high traffic border areas, such as around San Diego, for example.

(07:28):
They could use fencing technology, whatever it was. But those
enhanced measures were mandated. And it also increased penalties for smuggling.
It increased penalties for document fraud. It imposed higher fines
and stronger or longer prison sentences for those crimes. And
then it did something that a lot of people don't remember.

(07:54):
It criminalized illegal re entry. It established penalties for coming
back into the United States after you have been deported,
maybe the felony prison terms up to two years for
just a simple re entry, like you know, we took
you to Tijuana and you know, frog marshed you across

(08:17):
the border, and then when we turned our backs, you
just turn around and walk back in. That would be
a simple re entry. But for those who did that
and had a criminal record, it's a felony and a
prison sentence of up to twenty years. And then it

(08:37):
did this. It expanded and broadened the grounds for deportation.
Even minor crimes could be a basis for a mandatory
of deportation. And it made some changes to legal immigration.
It imposed stricter income requirements for US citizens or legal

(09:02):
residents who are sponsoring family members to come to this country.
The sponsors or the family members were required to demonstrate
income that was at least one hundred and twenty five
percent above the federal poverty line. And it also made
you supply affidavits you had to prove that you could
do it. You could do this, and then it became

(09:23):
a binding contract between you, the government, and the person
you were sponsoring that you were going to do that.
But then we get to the Coudi grass in this
legislation about deportation and detention. Now, remember this is the
law that the judge in the Eastern District of California
just throughout the window. I'll tell you about these portions. Next,

(09:47):
it is the Weekend with Michael Brown, Texas Word Michael,
Michael to three three, one zero three of you right back.
So Weekend with Michael Brown. Thanks for joining in. I
appreciate you listening to the program. You know, one of
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(10:10):
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the podcast. I really do appreciate that. So let's go

(10:32):
back to the Illegal Immigration Reformant Immigrant Responsibility Act of
nineteen ninety six, passed by a Republican House and Senate
and signed by a Democrats President mill Clinton. Because when
it comes to deportation and detention, the statute in terms
of mandatory detention. Mandatory detention, it required that for non

(10:56):
citizens that had criminal conviction, even if they were pending
deportation proceedings, and it limited Listen closely, it limits judicial discretion.
I'm if I read the entire text to take forever,
but just suffices to say that it required mandatory detention

(11:20):
for aliens, particularly illegal aliens that have criminal convictions, who
may or may not have pending deportation proceedings, and it
limits judicial discretion about what they can do. So the
judges are limited, not not the executive branch. That's the

(11:42):
first thing to remember. The second thing to remember is
this It provided for expedited removal. So the statute expanded
the use of expedited removal proceedings, and that allowed immigration
officers think CBP or ice to deport certain illegal aliens.
Take a deep breath, Michael, Listen closely, all of you

(12:04):
who are absolutely screaming due process, due process, due process.
It expanded the use of an expedited removal proceeding, allowing
immigration officers such as CBP and ICE to deport undocumented
or illegal aliens without a hearing before an immigration judge,

(12:28):
especially but not limited to those that are apprehended within
one hundred miles of the border or that are apprehended
within fourteen days of being able to prove when they
came into the country. And it even applied that rule retroactively.
Now it's immaterial to our discussion. But the other thing

(12:48):
that you might be interested in is it also restricted
access to public benefits for illegal aliens. It barred almost
all of them from federal benefits for the first five
years they were in the United States. Now you might
get upset and say, oh, by five years, well, because

(13:09):
that gave under the previous provisions that gave the immigration's
immigration officials. At the time this was passed, it was
called Immigration and Naturalization Service the i in S. Just
to make it clear, it expanded it to five years
before an illegal alien could go on the public dole

(13:31):
because they wanted to give i ins additional time to
get them out of the country before they got hooked
on out on your money, on our money. So back
to the judge, the dispute in this case seems to
be as I said on Friday, the best word I

(13:52):
could think of was pedestrian. In other words, it just
seems pretty typical. So here's what happened. The ACLU sued CBP.
They were conducting something called Operation Return to Sender. It
resulted in a bunch, actually several dozen arrests that were
inland from the border. Because remember this is the eastern

(14:14):
District of California, so this is not like in La
or San Diego. This is inland. Now, the plaintiffs that
are suing the government alleged they were racially profiled, they
were subject to coercive paperwork, which I find funny because
aren't we all subjected to coercive paperwork from the government.

(14:38):
And of course they claim they didn't get their Miranda
style warnings. You know that you're entitled to a lawyer,
and if you can't afford a lawyer, one will be
appointed to you for you. And if you say anything
you know it can will be using a court of
law against you, blah blah blah blah. And further, the
judge responded with this command that the agents to go

(15:00):
get a judicial warrant or at a minimum, probably showed
probable cause of imminent flight before they could arrest any
suspected illegal alien, and that the agents could not coerce,
try attempt whatever to get them to voluntarily leave unless

(15:20):
those agents first advised the illegal alien of every conceivable
right they could think of, and only then if they
chose to leave of their own enlightened accord. I guess
the order itself is ninety pages. As I said yesterday,

(15:42):
it's kind of like she grabbed all of this presidential
authority granted by this Act in nineteen ninety six and
took it to herself. She acted way beyond her authority,
in my opinion, because remember section thirteen fifty seven A
to two that I casually mentioned earlier authorizes immigration officers

(16:05):
to aprehend without a warrant any alien that the officer
has reason to believe is here illegally and is likely
to escape before they can go get a warrant. Now,
why would she then say you got to get a
warrant first? Because I think this judge is actually acting
as an accomplice. Does that upset you? Do you think

(16:29):
I'm being outrageous? No, memb. The statute says that the
officers have the right to deport them without a hearing before,
you know, going before an immigration judge. So she's saying, no, no, no,
you have to get a warrant and you have to

(16:50):
wait for that warrant. Now imagine so, oh, we've got
you here, the judge says, we can't hold you. We
have to go get a warrant first, So please do
just stay right here, don't move, don't move, Let's go
get a warrant. So they have to run the federal court,
get a warrant, or run to an immigration judge, get
a warrant, and then come back, hope they're still there,
and say, okay, now you're sorry. Now we're gonna take

(17:11):
you in. Think about what Congress insisted on and what
Congress deliberately omitted. It required reason, not an affidavit swarm
before a federal magistrate or a federal judge. It required
likelihood of flight, not some sort of claravoyant serrant certainty,

(17:31):
just oh, we think you might be the kind of
person who's going to try to run and hide. And
it gave those powers to border enforcement because that often
happens in places and moments where courthouses and all these
formalities are not available or at least immediately available speaking
with Michael Brown. Stay tuned. I'll be right back. Michael

(18:00):
Brown joins me here, the former FEMA director of talk
show host Michael Brown. Brownie, No, Brownie, You're doing a
heck of a job the Weekend with Michael Brown. Hey,
welcome back to the Weekend with Michael Brown. Glad to
have you with me. We're doing We're kind of doing
a con law lesson this this hour in the context
of I know you've heard that the reason these federal

(18:22):
judges are overturning all of these you know, deportations, the
Garcia case, which we may talk about in a little bit,
they're always screaming about you've taken away their due process rights. Well,
what I want to teach you, I guess I know

(18:45):
I'm acting like a law professor here, which I used
to be, so I tend to do that sometimes is
help you understand that due process isn't always what you think.
There is. The most broad due process you can imagine.
You're entitled to a jury of your peers. You have

(19:05):
the right to cross examine witnesses and present your own case.
The government has to prove beyond the reasonable death that
you're guilty of a crime, that you know, you get
this full panoply of rights that are both procedural and
substantive in a criminal trial. Well, even though there is

(19:27):
some cloak of criminality. For example, you you illegally enter
the country the first time, that's like getting a speeding ticket,
and you're not really entitled to do process. You enter
the country the second time after you've been deported, that's
a felony, And many people jump to the conclusion that

(19:49):
because it's a felony, you're entitled to do process. But
that's what this nineteen ninety six law said. Wait a minute, no,
you don't have to do that, because this is this
is an ara of the law where the government, in
particular the executive branch the Congress, and both the executive
branch the political the political branches. Let's say they have

(20:13):
plenary immigration authority plenary pl e nary meaning absolute. Give
him example, in a case called the United States versus
Ramsey nineteen seventy seven, customs agents opened envelopes without prior
warrants on the strength of this principle under the nineteen

(20:39):
ninety six law that you don't always have to have
all of these hearings or anything else. The Court approved,
of course, said no, that's absolutely fine. In a case
called the Department of Homeland Security versus there, they're a
CDM is spelled th h u r ai ssig I

(20:59):
a M their Singian. It's a twenty twenty case. The
Court reminded us again that expedited removal under the nineteen
ninety six law with either truncated hearings meaning shortened hearings
or no hearings, does not violate due process because Congress possesses.
Congress has this plenary authority over admission to this country

(21:24):
and exclusion from this country. So Judge Thurston, this outlandish
outlaw judge in California, unmoved, undeterred by these Supreme Court precedents,
insists that the Fourth Amendment reasonables. There's a Fourth Amendment

(21:46):
rule that says, whatever you do, whatever procedures you use,
should be reasonable. Well, the Congress that has the authority
under the Constitution, immigration law is designated to Congress. It's
one of the enumerated powers of Congress, and Congress through

(22:08):
the Immigration and Naturalization Act of nineteen I think it's
thirty four. And in this case, this law from nineteen
ninety six has said to the president, has said to
the executive branch, we are delegating this authority to you
to do these things, and we're going to outline a
box within which you can operate. So the judges, in

(22:32):
my humble opinion, have to follow what Congress said, because
the Supreme Court has already in two cases said that
that box that Congress drew, that said the executive branch
can operate within. The box is constitutional, and you can
truncate or shorten these hearings or completely eliminate these hearings

(22:56):
if you meet these certain requirements. Judge Thurston, unmoved by
those that understanding of the Constitution, unmoved by the two
Supreme Court cases I just described for you, and acting
on her own volition, acting on her own political beliefs,

(23:17):
ruled otherwise. She insists that the Fourth Amendment's reasonableness clause
requires her rule to go get a warrant first, So
that order kind of amounts to the following syllogism. If

(23:37):
you will major premise, the Constitution bars unreasonable arrests, minor premise,
and arrest without a judicial warrant, is unreasonable conclusion. The
statute permitting such arrests is unenforceable in my district. Now
that syllogism fails because its minor premise is both historically
and doctrinally false. The disenforcement blocks the executive from actually

(24:03):
executing the law until a higher court intercedes. That is
not an originalist view of the Constitution, because from the
very first Congress, statues have empowered the executive, for example,
to go seize a vessel on the high seas, to
arrest and expel smugglers, to do the same with deserters

(24:27):
without any sort of judicial preclearance. In other's, without going to,
you know, to a judge and say, hey, we need
a warrant. For example, Andrew Jackson's proclamation to the people
of South Carolina denounced nullification, warning that a state cannot
pick and choose among federal laws. Well, that's exactly what
you know. Judge Thurston does not stand in the state legislature,

(24:49):
but her order performs a more subtless species of nullification.
She dislikes the speed with which the nineteen ninety six
law allows deportation. She doesn't lie, kid, so she just
unilaterally slows it down on her own. She doesn't like
or at least distrust administrative warrants, so she says they're unconstitutional.

(25:12):
She doesn't even paying attention, or she just willfully forgets
that Congress reduced procedural protections for these unlawful entrants, for
these illegal aliens, precisely because the political branches, the Article
one legislature, the Article two executive branch, they've got to
decide how poorous our borders will or will not be. Now,

(25:38):
if you're a part of that stupid crowd that I
saw protesting the other day, you're going to protest that
the Constitution is not suspended at the real Grand River. Well,
quite so. Due process remains, but it's due process do
under the circumstances, and due process under the circumstances. The

(26:00):
Congress and the Supreme Court have said. This is what
it is. You can detain them if they're a flight risk,
you can withhold any sort of bond or anything else,
and you can send their butts right back across the border.
You know what this judge does is she effectively takes

(26:25):
an illegal alien and kind of elevates them and gives
them citizen status by insisting that only she or other
federal judges can authorize their detention. It's not what Congress
said that reading. That reading absolutely contradicts the structure of
that act, of the nineteen ninety six law. It absolutely

(26:49):
contradicts the history of immigration enforcement. It absolutely contradicts the
text of Article two that establishes the authority of the
President of the United States of America, who has the
duty to take care that the laws be faithfully executed.
He is acting under the nineteen ninety six law, and
he's making sure that we faithfully executed. You know the

(27:10):
other thing Article two does if that's the president with
the authority over the executive departments, So practically, what does
that mean that immigration officers are an extension of his
constitutional authority? And if you try to keep those officers

(27:30):
from exercising power that Congress granted them, is the same
as hobbling the president. And I'll just say this, I
think that's exactly what she wants to do. And by
doing so, what is she doing. She is herself the
one that is nullifying the rule of law. She herself

(27:51):
is the one that is violating due process. She herself
is the one that is saying, oh, I'm going to
take these powers for myself because she's not interpreting, she's
making up her own rules. You know. The defenders of

(28:13):
these orders invoke fairness. They say the voluntary departure is coersive.
When you're you know, confronted by a guy in a
or a woman in a green uniform and they've got
a gun on them. They say racial profiling demeans human dignity.

(28:33):
They say that no one should ever sign a legal
form without a lawyer. You sign how many of you?
You know, Michael and I were just talking about apps.
How many of you have recently just downloaded an app
or you just signed up for something. Did you have
a lawyer review the terms of service before you signed
the document? No, because you just want the app. You

(28:55):
don't want to hire a lawyer, You don't want to
read through the terms of service. I would recommend that
you do as a lawyer to at least so you understand,
so you're not surprised when that app says, oh, yeah,
we can track your movements, or we can do this,
or we can do that. Well, she thinks that, you know,
maybe she's just defending. Maybe she wants lawyers to have

(29:17):
a full employment Act, and she wants you know, a
lawyer for every little thing that goes on anywhere in
terms of immigration. You just you just get stopped, you know,
and they find out you're an illegal alien. Well, got
to get a lawyer right away. The practical consequences of
her injunction expose the very folly of her injunction, and

(29:39):
I'll tell you why. Next, it's the Weekend with Michael Brown.
Text the word Michael Michael to three three was one
zero three. Go follow me on x formerly Twitter at
Michael Brown USA, LL be right back. Hey, welcome back
to the Weekend with Michael Brown. Glad to have you
with me. So we're talking about this judge and Eastern

(30:00):
District of California that basically shut down Operation Return to
Sender that icn CBP were going through. So what her
order does in a nutshell is this, It prevents any
arrest of an illegal alien unless they first go get

(30:21):
a judicial warrant. In other words, go in front of
a federal judge and get a warrant or be able
to show that the alien is likely to flee before
the warrant can be obtained. Now that itself means there
will be delays, that showing will rarely satisfy a judge

(30:43):
who is already against what Trump is doing. So the
administrative warrant just becomes a dead letter in all but name.
In other words, you're never gonna be able to get
these warrants. She has effectively stopped them from enforcing the
nineteen ninety six law. And many lay people scream, but

(31:07):
we have to do that because of due process. Well,
that is absolutely wrong. That attitude or that belief relies
on a case. You don't know this, but I'm explaining
to you why people are telling you this. There's a
case called Boy versus United States. It's an eighteen eighty

(31:29):
six decision that involved customs forfeiture and on the general
proposition that warrantless searchers searches are presumptively unreasonable. But it
neglects all the other cases that I told you, plus
even others ross Montoya, the sixty mile checkpoint cases, the

(31:52):
two US Supreme Court cases I told you about, each
of which underlines the broad latitude that is given to
the congressional and the executive branches when it comes to
immigration matters. In fact, this order ignores the explicit language
of the nineteen ninety six law that limits judicial review

(32:14):
of these matters to very narrow circumstances. It disregards the
thirst Again case decided less than five years ago, where
the Supreme Court upheld the very abridgment ADU process that
this judge is now trying to put back into place.
So you know, you got to ask yourself, is this

(32:38):
judge acting politically? If Joe Biden were trying to do
these things? Operation returned to sender, would she say, oh,
that's fine because she was nominated by Biden confirmed in
late twenty twenty one, so her legal thinking like, like

(32:58):
a lot of Biden's nomine please reflect this sort of
academic skepticism toward executive enforcement discretion. And of course it's
all based on social justice too. But the Constitution doesn't
fluctuate based on who's in office. Powers that blong to
Obama when he granted the Deferred Action for Childhood Arrivals

(33:21):
DACA belong equally to President Trump when he instructs Ice
to deport those same individuals. So the framers of the
Constitution gave us a mechanism for correcting something that might
be considered a statutory excess, namely, pass a new law,

(33:42):
pass a different law. If she thinks this law is wrong,
it's not her courtroom to try that. She can go
to Congress and lobby to titan the standards, or broaden
her oversight, or just repeal, expedite removal all together. Until then,
her duty, like every lower court in this country, is

(34:05):
to apply the law as written and as has been
interpreted by the Supreme Court. And if you don't believe me,
Chief Justice Marshall, our first chief Justice wrote that it
is emphatically the province and the duty of the judicial
department to say what the law is, not what the
law ought to be. So she's clearly begone even what

(34:29):
our first Chief Justice said. So what's going to happen next? Well,
this case will get appealed to the Ninth Circuit, the
Ninth Circuit in San Francisco, their record on immigration is mixed.
The appellate panel might affirm this. Listener General will then
petition for sirt to the US Supreme Court. The Supreme
Court might take the case as another skirmish in this

(34:50):
ongoing battle over immigration policy. And I think if the
Supreme Court does, I don't think her case will stand. Meanwhile,
what's going on? Think about what's going on in the meantime,
cartels continue to operate, and the illegal alien that gets
past a distracted agent, well, should that illegal alien should

(35:16):
not be like, oh, breathe deeply that the judiciary is
safeguarding his or her theoretical due process rights. He'll go
look for work shelter, anonymity, he'll get on the dole.
They'll start using up tax payer money. If he brings
a family, they'll they'll take up space in public schools.

(35:36):
So this opinion has wide ranging effects. Ultimately, the issue
is not compassion versus cruelty. It's not rights like due
process rights versus what they call the enophobia. It's authority
versus usurpation. Congress wrote this nineteen ninety six law in

(36:01):
order to streamline enforcement. An article twos tells the president
you've got the duty to enforce the law as Congress
wrote it. But I guess Judge Thurston wants to do
it a different way. She wants to do it her way.
This is why I think the Supreme Court ultimately would
take this case. But what I hope, what I really

(36:22):
hope that you will not do in the future is
think that, oh, we're violating these people's due process rights.
Due process was always defined differently for different circumstances. Congress
always had the right to define what is a reasonable
or unreasonable search or seizure, and they've done that in

(36:45):
the courts have upheld that time and time again. Do
I think sometimes Congress goes overboard? Sure do sometimes Congress
not go far enough. Sure, But that's why we have
That's why Congress is the first brand speek Way Way