April 28, 2025 • 39 mins
Environmental law expert Pat Parenteau, a professor at the Vermont Law & Graduate School, describes how a proposed Trump administration revision to the Endangered Species Act will jeopardize endangered species. Immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the latest immigration cases. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:09):
We've lost about one out of every five butterflies from
twenty to twenty twenty. Scientists released a new study last
month showing that in the last twenty years, nearly one
quarter of all butterflies have been wiped out, with the
loss of habitat being one of the major causes. It
was just at the end of last year, after years
(00:30):
of scientists warning that the number of monarch butterflies were shrinking,
that US Wildlife officials put the monarch butterfly on the
endangered species list. It's really quite troubling to see that
monarch populations are declining, and if there aren't enough flowers
to feed monarchs, imagine all the lesser known pollinators that
aren't getting the things that they need. But this month,
(00:51):
the Trump administration issued a proposed revision to the Endangered
Species Act that would cut nearly all habitat protections for
injured species like the monarch butterfly, the manage, the northern
spotted owl, the whooping crane, and the green sea turtle,
just to name a few. Turining me is environmental law
(01:11):
expert pat Parento A. Professor at the Vermont Law and
Graduate School. So that the Trump administration wants to scrap
how the government defines harm in the Endangered Species Act,
tell us how it's been defined since basically the Reagan administration.
Speaker 1 (01:29):
So the Act prohibits was called take of protected species,
and take is further defined by a whole string of
verbs including kill, wound, trap, but also harm or harassed.
And it's those two words harm and harassed in the
(01:50):
Endangered Species Act of nineteen seventy three. That were new concepts,
and it took some time to define what those concepts meant.
But in regards to harm, there was a very critical
decision issued way back in the early nineteen eighties actually
by the Ninth Circuit Court of Appeals in a case
(02:11):
out of Hawaii involving the Palila bird, an endangered bird,
which ruled that destruction of habitat constitutes harm. And as
a result of that decision, the Department of Interior under
then Secretary Babbitt promulgated this rule, defining harm to mean
(02:32):
actions including habitat modification that actually kills or injures listed
species by interfering with essential behavioral conditions like breeding, feeding,
and sheltering. So it's a long definition, but its bottom
(02:52):
line is the court's ruled that habitat loss is a
take is prohibited under the d Species Act. Congress subsequently,
after the Polila case, enacted an amendment to the Endangered
Species Act in nineteen eighty two. I was there, I
testified on this, which said, Okay, to protect landowner from
(03:16):
finding themselves in violation of the Act, we're going to
create a special permit process, which is called the incidental
take permit, and we're going to require that landowners, if
they want one of these permits, come up with a
habitat conservation plan to mitigate an offset the loss of
(03:38):
habitat for the activity logging, mining, grazing, all kinds of
activity that would result in loss of habitat. So the
point is this harm rule has a very long history,
and it's one that Congress deliberately codified in the Endangered
Species Act. That's why they created the permit for So
(04:00):
the idea now that you would eliminate the definition of
harm just rescind it, wipe it off the books, and
not replace it, which is what is being proposed by
Secretary Bergham. It's crazy, I mean it flies in the faith.
What's the surprise here of this whole history of how
(04:22):
the courts and Congress have dealt with this critical idea
of protecting habitat. When you think about it, habitat loss
is the major driver of extinction in the United States
and globally. So to just eliminate it from the one
law that's designed to prevent extinction, it's really nut the
(04:46):
proposed change.
Speaker 2 (04:47):
Are they saying it's because of the Supreme Court's decision
in Low or Bright eliminating the Chevron.
Speaker 1 (04:53):
Doctrine, Well they are. The irony, of course, is the
United States Supreme Court, in a very very famous case
which I submitted an amicus brief on behalf of E. O. Wilson,
the late great conservation biologists, the biologist, by the way,
who first warn the world that we were in an
era of extinction. It was his work way back in
(05:14):
the sixties that identified the loss of habitat as the
main driver of extinction. Right, So we filed this brief
in a case called sweet Home versus Babbitt, in which
the US Supreme Court upheld by a sixty to three
vote the harm rule that I just described. Right, So,
now you have the Trump administration saying, yeah, but the
(05:38):
Supreme Court has overruled Chevron, which means, of course that
the Supreme Court's decision in Sweet Home is no longer controlling.
But wait a minute. When you read Chief Justice Roberts's
opinion in Low for Bright, he specifically says that decisions
that have upheld rules based on Chevron are still in effect. Yea,
(06:00):
So now you have the Trump administration saying, well, but
we're going to change the rule by eliminating it for harm,
and therefore we don't have to give the prior interpretation
any significance, any difference at all. But that's not what
Robert said. He said that prior decisions based on Chevron
(06:23):
defference are entitled to what are called statutory starry decisives,
in other words, precedent right. And he made it clear
that it wasn't just a matter of saying, oh, well,
never mind that a rule was formally upheld. He said,
you have to justify, you know, new decisions to change
your rule under the usual requirements of reversing prior rules, right,
(06:49):
which is what we call the state farm doctrine, which
means you have to justify repealing a rule based on
change of circumstances, new facts, something has happened that justify
rethinking why the original rule should be completely reversed. But again,
(07:11):
all of the evidence suggests there's no basis for eliminating
habitat protection from the Protections of the Endangered Species Act.
If anything, what we're seeing is that habitat loss is
now affecting all species. You know. The Cornell Lab, you know,
the famous ornithological lab at Cornell University, issued an incredible
(07:36):
decision this last year saying three billion birds three billion
birds have disappeared from the United States since nineteen seventy
and that's primarily related to habitat loss. Pesticides and other
things come into play. Habitat loss is the reason that
(07:56):
we're losing our incredible array of species. So this idea
that the local Bright decision somehow justifies eliminating protection for
habitat is once again crazy.
Speaker 2 (08:12):
So the Center for Biological Diversity issued a report identifying
ten endangered animals at risk from this proposal by the
Trump administration. They include the whooping crane, monarch, butterflies, manatees,
the northern spotted owl, the Florida panther, desert tortoises, etc.
And a lot of those are very popular species that
(08:35):
most of the public would probably want to protect.
Speaker 1 (08:39):
Right at one time, you could measure the abundance of
monarch butterflies in the billions, and the western population of
monarch butterflies has been reduced by I think something like
eighty percent maybe more and is really in danger of extinction.
It's incredible to say that butterflies that used to light
(09:02):
up the landscape all across the United States. I mean,
we have them right here in our fields at are
place here in Vermont, not as many as we used
to have, but still it's like the passenger pigeons, right,
Flocks of passenger pigeons, history says, used to darken the
skies throughout much of the central part of the United States.
And then just we're gone, and we're seeing the same
(09:25):
thing with species like monarch butterflies. And we've got an
administration you know, that wants to eliminate the one law
that's designed to prevent that, or to substantially weaken it,
if not eliminate it. It's really quite remarkable.
Speaker 2 (09:41):
So would this Trump administration change limit the Endangered Species
Act to prohibiting only intentional direct killings.
Speaker 1 (09:51):
Of animals, right, And that's what Justice Scalia's descent in
this Sweet Home decision said, is that you can only
interpret harm in the same way that you interpret the
verb kill. So to kill means direct impact on the
individual animal, as Scalia famously put it, a strikes B.
(10:16):
But in her concurring opinion in Sweet Home, Justice O'Connor that, now,
wait a minute, eliminating the ability of a species to
reproduce is the essential kinds of injury. How can you
say that only a strikes B constitutes harm, you know,
(10:37):
eliminating the breeding habitat of species and their ability to reproduce,
essentially eliminating the species. So it was a fascinating interchange
between O'Connor and Scalia, not the first to last, by
the way of those who disagreeing in print, sometimes quite
tartly over how to interpret a statutory term. So once again,
(11:00):
and this whole idea that only things that directly affect
the species is ignoring what the science is telling us
is the major reason we're driving species extinct.
Speaker 2 (11:14):
So then do you think that when this is challenged
in the courts, that the administration will lose?
Speaker 1 (11:22):
Yes, they should and they will. Now, when it finally
goes back to the Supreme Court, we'll actually see whether
Justice Roberts you know, sort of caution in the Lower
Bright case stands up. In other words, is he going
to look at this question of can you just simply
wave your hand, you know, and eliminate this harm rule
(11:45):
without any justification at all other than to say we
don't think it's the single best reading of the statue.
That's the rationale that the Trump administration is using to
repeal the harm rule. You know, the single best interpretationation,
says the Trump administration is Kalia's descent in sweet Home.
So when this thing finally if it does, then it
(12:08):
may not get back to the Supreme Court. We'll actually
see whether or not just saying we're going to repeal
a rule because in our view, the Trump administration view,
it's not the best reading of the statute can prevail.
And by the way, you know, the Trump administration is
not going to get any difference for that interpretation either.
(12:29):
That is the central message of Loper Bright. Nobody, no
agency gets difference anymore under Lower Bright, including Trump.
Speaker 2 (12:39):
After the biotech and genetic engineering company said it successfully
created three dire wolf puppies. The Secretary of the Interior,
Doug Bergham, said, the only thing we'd like to see
go extinct is the need for an endangered species list
to exist. He compared it to Hotel California, where once
you're on the list, you never get out.
Speaker 3 (13:00):
Wow.
Speaker 1 (13:02):
So the dire wolf story, it turns out those aren't
dire wolves. They're an amalgamation of genetic manipulation of different
painted species. If you really look behind the headlines of
that story, not the dire wolf, get the knockoffs. It's
(13:22):
a Hollywood production of a dire wolf. That's not what
we're talking about with endangered species conservation. The original Act
in nineteen seventy three had some incredible observations, really profound observations,
things like in danger, species hold answers to questions we
(13:44):
haven't even learned how to ask. I mean, it was
really profound, right. It was like the driver of evolution
on Earth is speciation and the way that species adapt.
And of course nine of the species that ever existed
on the Earth are extinct, so extinction is a part
(14:08):
of the natural process. But the difference is human caused extinction,
which again EO. Wilson and others documented and proved was
accelerating at sometimes one hundred times and other times even
a thousand times greater than what they called the background
(14:28):
rate of extinction, which is sort of the natural evolution
of species on Earth. Right, So this idea that we
can recreate species, this sort of Jurassic Park notion that
we don't need to preserve the natural diversity of the Earth,
the natural process of evolution, that we can invent species
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whenever we feel like it really is a Hollywood idea.
It has nothing to do with science, nothing to do
with the fact that you know, natural species, including insects,
which are in great decline, are incredibly important as we know,
to human survival on the Earth. Scientists are saying, if
we continue on the path that we're continuing to drive
(15:12):
more and more just simply insects species to extinction, we're
going to have tremendous impacts on pollination, tremendous impacts on
food supply. And you can do the same thing with
the oceans. You destroy the coral reefs. That's a third
of the marine biodiversity on Earth. When you think about
all of the protein that we get from the oceans,
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that depend on natural systems, natural organisms that are attracted
to coral reefs. You're just inviting catastrophe when you suggest
that we don't have to be concerned with preserving the
natural history of the world.
Speaker 2 (15:52):
Is this all about making it easier for oil and
gas producers? What's the goal of the Trump administration.
Speaker 1 (16:02):
Yeah, I mean it's property rights, it's landowner rights in part.
Although what we've seen with the Harm rule in place
is that there have been millions, more than twenty million
acres of land, private lands that have been conserved under
this incidental take permit program I mentioned, and allowed logging
(16:25):
and mining and other activities to occur, just with offsetting mitigation.
So it's not true that the Harm rule has prevented
anything anything. There's no evidence that any landowner has suffered
what's called a taking, a constitutional taking of property as
(16:49):
a result of the Endangered Species Act. Never, never, So
the whole idea that you have to eliminate this one
mechanism of protection is simply wrong. There's no fact, no evidence.
If you look at the proposed rule to resind the
Harm rule in the Federal Register, and by the way,
the comment period is still open until May nineteenth. For
(17:11):
those who are interested in that, you can go look
at it. It's a very short statement. We're simply repealing
the harm rule. We're not replacing it. We're just pretending
like we're going to erase the word from the statute,
which of course violate canon number one of statutory interpretation,
which is every word of a statute must be given effect.
(17:36):
You don't just erase it because you find it difficult
or whatever. You have to do something with it. And
the proposal is to do nothing with it, to just
erase it as if it never existed.
Speaker 2 (17:50):
So would this move by the Trump administration, would it
got the Endangered Species Act?
Speaker 1 (17:57):
It would drive a huge hole through the Act, for sure.
There are other reasons why the Act still you know,
provides protection. It still requires consultation, although there's another you know,
Burghum directive now saying that we're going to shorten up
the time for consultation. When a proposed activity oil and
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gas leasing for example, or other forms of fossil fuel development,
where that threatens an endangered species, there's a requirement that
there be consultation. And there's still a provision that says
if an action would jeopardize a species, it can't go
forward unless it gets an exemption and so forth. But
the point is by taking out the central protective mechanism
(18:42):
of the Act, the take prohibition applies to everyone, private parties, state,
tribal entities, counties. I mean, it's the most comprehensive provision
in the Act that protect species no matter where they are,
whether or not federal land or not private land, state land,
(19:03):
or wherever they are, they're protected by the take prohibition
and this incidental take permit process.
Speaker 4 (19:09):
Right.
Speaker 1 (19:10):
So it's a really central mechanism of the law. It's
not the only one, and it doesn't mean that the
law would simply disappear without it, but the ability to
protect habitat on non federal lands, which is where most
of the habitat is, would be severely diminished.
Speaker 2 (19:29):
There's a lot at stake here.
Speaker 1 (19:31):
I don't think this one is going to survive. I
really don't. But the point is we're going to have
to fight about it for years instead of moving forward
with making the laws work better. And certainly there's ways
of improving the way the Endangered Species Act works to
make it more effective at recovery, for example, and to
(19:51):
provide more incentives for landowners. That's fine, you know, let's
have that conversation. But just going backwards that's not going
to help anything.
Speaker 2 (20:00):
We'll see what happens after the notice and comment period
is over. Thanks so much.
Speaker 3 (20:05):
Pat.
Speaker 2 (20:06):
That's Professor Pat Parento of the Vermont Law and Graduate School.
The Trump administration's immigration moves have been in the headlines.
Last Friday, it was the FBI's arrest of a Wisconsin
judge for allegedly helping an undocumented immigrant evade ICE borders
are Tom Homan defended the arrest.
Speaker 5 (20:27):
You can sit aside and watch you. You can argue
against us, always want, and protest all you want. But
when you cross that line. I've said this to a
thousand times, when you cross that line to impediment or
annoying Harbard, concealing an illego alahaim Ice, you will be prosecuted,
judge or not.
Speaker 2 (20:44):
And then the removal of three children who are US
citizens to Honduras with their mothers who were being deported.
Secretary of State Marco Rubio set it's up to the
families to decide whether the children go with their mothers
who are being deported, or stay in the US.
Speaker 4 (21:02):
If someone's in this country unlawfully, illegally, that person gets deported.
If that person is with a two year old child
or has a two year old child and says, I
want to take my child with you with me, Well,
now what you have two choices. You can say yes,
of course, you can take your child, whether they're a
citizen or not, because it's your child. Or you can
say yes, you can go, but your child must stay behind.
And then your headlines would read us holding hostage two
(21:25):
year old, four year old, seven year old while mother deported.
So the mother, the parents make that choice.
Speaker 2 (21:31):
My guest is immigration law expert Leon Fresco, a partner
at Holland and Knight. Three US citizen children from two
families were removed from the United States with their mothers
who were being deported to Honduras, and Secretary of State
Marco Rubio defended the removals, saying it was the mother's choice.
Speaker 3 (21:50):
Well, this is not an uncommon fact pattern, which is
there are many of these so called mixed status families,
and what that means is that one or both of
the pirates might be documented. And then obviously, if a
child is born in the United States, the child is
a US citizen, and the question is what happens there?
And normally what happens in that situation is ice like
(22:12):
in any arrest, there's a car and there's a parent
and a child in a drunk driving situation. If you
have an arrest, what happens is the authority say, what
would you like the dispensation to be for the child?
Is there some plan that you had in this situation,
and it might be in the case of a US
citizen child of an undocumented parent, an aunt, an uncle,
(22:34):
a cousin. Dispute in this case is that I didn't
give that opportunity for those wishes to be carried out.
And that's what the federal court judge is going to
have to determine, is was that plan not carried out?
And the reason this matters is, yes, the US citizen
could come back into the US, but it takes time
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to go to an embassy and get a passport appointment,
and get that evidence and do all of that that
could take months in the ordinary course. Is perhaps the
court would want to order that much more quickly and
not have to go through the process of getting a
passport and doing all of those appointments and evidence and
everything else, or maybe the court will simply order that
(23:15):
a passport be printed immediately and get the citizen back
to the United States if that is the parent wishes,
which that seems to be the allegations in these complaints,
and so that's what's going to have to be worked
out here. But yes, sometimes the parents actually say to
bring their children with them back to the home country,
(23:36):
and that's their right and they can do that. And
sometimes they want the children in the United States and
that's their right. But usually this gets worked out through
some process, and Ice is currently saying that got worked
out here, and this is what the parents chose. The
lawsuits are saying the parents didn't choose this, and that's
what's going to have to be played out in court.
Speaker 2 (23:56):
So what happens if one parent wants the child to stay,
Let's say it's a parent with US citizenship, and the
other wants to take the child with them.
Speaker 3 (24:06):
That almost puts us into one of those famous Elim
Gonzalez type situations of the past, and that would actually
be a very interesting question. In a scenario like that,
What would normally happen is then that's an issue for
the state court. Child custody judges to determine, and in
that situation, the state court child custody judges are going
(24:29):
to have to determine what's in the best interests of
the child. And that may certainly be a completely different
analysis if a child is being deported to a country
where the conditions are very similar to those in the
United States as opposed to one where the conditions are
quite onerous and very difficult for the child to live in.
And also is one parent capable of caring for the
(24:52):
child is the other one, And so all of that
would need to be determined by a state court judge.
And that's what would happen in a case like this.
Speaker 2 (25:01):
So does there have to be a hearing before the
child can be removed with the parent?
Speaker 3 (25:07):
No, the problem is there's no hearing at all. The
child is a US citizen, and so the immigration court
has no jurisdiction whatsoever for any child of any kind.
But what has to happen is that if there is
a parent and a child that are physically together and
you're trying to deport the parent only you have to
(25:29):
give the parent some process visa the what they want
to have happened to the child. And so the parent
is well within their rights to say I want the
child to come with me. That the parent doesn't lose
jurisdiction over the child by virtue of the deportation, but
they also have the right to say I have this
other plan for my child, and they can give the child,
(25:53):
who's a US citizen, to someone in the United States,
and then it will be up to those individuals who
are remains with the child if they want to get
some sort of formal guardianship established in the courts. They
don't have to, but ideally they would so that you know,
decisions can be made about the child's life by this guardian,
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whether it be school decisions or health decisions or anything
related to that.
Speaker 2 (26:19):
Apparently the mother was taken into custody while she was
attending a routine check in last week.
Speaker 3 (26:28):
Yes, the problem is there that those check ins were
quote unquote routine in the previous administration, but now those
check ins are not going to be routine because they
are going to be people without status reporting to ICE.
And so this is a fine line that ICE has
to balance, which is do they want people reporting to
(26:49):
these check ins or not, because if people don't report
to the check ins, obviously their fugitives and ICE will
have to catch them. But if people report to the
check ins and they're all detained, then they're going to
stop reporting to the chickens. And so this is the
challenge ICE is going to have to face, and they're
going to have to decide which one they prefer in
this situation.
Speaker 2 (27:09):
So now turning to another case that got a lot
of headlines last week a lot of attention is the
Justice Department charged Wisconsin judge with obstructing an immigration arrest
operation and concealing a person from arrest. Tell us what
happened here.
Speaker 3 (27:26):
Well, here you had a situation where a state court
judge as part of a routine state court criminal proceeding,
although it was a domestic violence proceeding, which certainly adds
to the complications here because obviously you certainly want to
try to punish people who commit domestic violence, but nevertheless,
this was a domestic violence based court proceeding. And what
(27:50):
happened here is that the judge heard and was aware
of the fact that ICE was in the building and
was looking to take custody over the person after their
hearing was going to be concluded. The judge then asked
ICE to go visit with the chief judge, and while
that was happening, then there was one ICE officer that
(28:13):
was still there that was in plain clothes, so the
judge didn't know there was still one government official still
there left who was observing all of this, and this
individual observed the judge then take this individual through the
jury box so that they could leave the building, and
then ICE had basically chased the individual down as opposed
to what they were expecting, which would be sort of
(28:34):
a much easier transfer once the person left the courtroom.
And so from that perspective, they charged the judge with,
as you said, obstructing an investigation and proceeding an arrest.
And interestingly enough, they didn't actually charge the judge with
harboring or concealing an undocumented person, which is sort of
(28:57):
the charge that's been discussed in the new that one
wasn't charged. It was just the normal any arrest, any investigation,
that you were obstructing any arrest, and that's what was charged.
And this is going to be a very interesting question
because it's going to be in the federal court for
the federal court judge to try to figure out does
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the state court judge have this jurisdictional concern over the
court and being able to maintain their docket and being
able to maintain an orderly court system, so to speak,
that they can actually do something like this or does
that not extend out for the purposes of an arrest
(29:39):
or immigration law or anything else. Because I think what
the judge would probably say, although I obviously haven't heard
from the judge, is something akin to find this person
is an immigration fugitive, no doubt, and probably ICE. You
would want ICE to catch this evasion fugitive. But the
question is, once people who are in criminal court proceedings
(30:03):
are being asked to come into state court for those
criminal proceedings, if they know ICE is going to be there,
do you now want to make them a double fugitive
and have them be a fugitive not just from ICE
but also from the state criminal court, Which is what
will happen if people start thinking that ICE is going
to pick people up in the state court for criminal cases,
(30:23):
or do you want them at least to attend the
state criminal court sentence them, deal with that and then
ICE can get them later. So that's I think the
argument that the state court judge is going to make
and then Ice is going to say, no, that jurisdiction
doesn't extend to a judge being able to govern the
in and outs of how someone comes in and out
(30:44):
of a building, because at that point that is actively
thwarding a arrest, and that's going to be up for
the court to decide in that situation, who's right, who's
got the ability to govern the courthouse in that specific situation.
Speaker 2 (30:59):
Lee unreportedly the FBI had an administrative warrant. Is that
something a judge would be expected to comply with?
Speaker 3 (31:06):
Well, this is going to be another problem. They didn't
have a judicial warrant, they had an administrative warrant, and
so the administrative warrant, this is going to be another
debate and this this is a continued sort of issue
in the immigration laws. What does that administrative immigration warrant
get to from Ice? And really a lot of legal
commentators have said not much at the end of the day,
(31:29):
because all it allows you to do is to be
in a public space. Now, Ice was in a public space,
they were not in a private space in the courthouse.
But at the end of the day, does that administrative
warrant actually suffice for the purposes of the elements of
this crime, which is that you are obstructing in a
(31:53):
lawful arrest, And so that's going to be the question.
Perhaps the court will say you needed a judicial warrant
for that obstruction to take place, and the administrative warrant
was not sufficient to meet the elements of the charge,
and so the judge will be able to get exonerated
on that. That's definitely going to be another claim that's made,
(32:14):
and we'll have to see if the court wants to
be persuaded by that argument, which is that the administrative
as opposed to the judicial warrant is not enough.
Speaker 2 (32:23):
Regardless of you know, the facts here, what the ice
did or what the authorities did. The FBI was very
unusual in that they didn't allow a sitting judge to
surrender to authorities, but rather they arrested her at the
courthouse and they had her sitting for hours in a
holding cell.
Speaker 3 (32:44):
That's certainly always this debate about what happens when you
arrest someone and if someone is not a public safety thread,
is the person allowed to enter custody with a lawyer
and with arrangements done because the person is not going
to be a public safety threat. They're not going to
be a fugitive. One would certainly imagine that would be
the case with a judge, obviously, because the judges an't
(33:05):
offenserve of the court has to follow the law. It's
not going to be a fugitive, it's not going to
flee to some other country, it's not going to commit violence.
And so those criticisms are obviously in line with what
traditional practice is and it will be up to the
government officials to explain why they felt the need to
(33:25):
deviate from that and not allow a reporting in that situation.
Speaker 2 (33:30):
So is it an escalation of the Trump administration's sort
of standoffs or fights with federal judges to arrest.
Speaker 3 (33:40):
A judge, Well, this would be a state court judge.
But I mean certainly that is the rhetoric that is
coming out now, which is that there will be no
interference with these ICE operations, and if there's anyone actively
interfering with ICE operations, they will be arrested. Whether it
would be for this basic which is interfering with any
(34:01):
arrest that's the one the state court judge was arrested for,
or whether it's the harboring or concealing offense in EUSC
thirteen twenty four. That's immigration base. And certainly there's executive
orders that are coming out now today about the same issue,
basically instructing the Department of Justice to go look for
(34:22):
these cases and to arrest people who are obstructing these investigations.
And the courts are going to have to decide what
is obstruction and what is people trying to either maintain
their judicial proceedings, or cities trying to govern their cities,
or states trying to govern their states. Where does the
(34:43):
line cross over from non cooperation to obstruction and who
can do what? And I think if there's enough of
these prosecutions, you're actually going to see multiple cases going
up through the court where there's nuances in each situation,
and so well, that's going to be quite fascinating to watch.
Speaker 2 (35:03):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Leon Fresco of Honda Knight. There seems
to be some movement by the government in the case
involving Kilmar Abrigo Garcia, who was mistakenly deported to l Salvador.
I'm June Grosso. When you're listening to Bloomberg so no,
it appears that there's been a break in the standoff
(35:26):
involving or Brego Garcia, who I think almost everyone knows
his name by now, who was mistakenly sent to prison
in l Salvador. The judge in the case granted the
Trump administration a week long pause in detailing what steps
they're taking to get him back. But apparently the administration
(35:46):
said in court papers that it had held appropriate diplomatic
discussions with l Salvador.
Speaker 3 (35:53):
Apparently there is some belief that this is going to
be resolved in some amicable manner that will make the
litigants happy on the plaintiff side, on Abrego Garcia side,
and allow the case to be dismissed against the government. Obviously,
there would be no other reason why, if you were
an attorney with a client in that Elsavador in prison,
(36:14):
why you would allow a week long continuance for this.
And so what's not clear is if there's going to
be just a release from custody and not a repatriation,
and then the plaintiffs are going to have to figure
out how the repatriation occurs, or if there will actually
be a full fledge repatriation, or if there will be
(36:34):
some ability to go to Mexico or something like that.
All of this is undetermined, but certainly I would imagine
that they're close enough to a settlement at this point
that that's why both the judge in this case and
the plaintiffs have agreed to move forward with that extension,
because otherwise there would be no logic to it.
Speaker 2 (36:56):
We would watch in courtroom battle student protests over the
Trump administration revoking student visas, and now they've apparently walked
that back.
Speaker 3 (37:08):
Yes, as we discussed last week, there was always this
question about whether ICE had the ability to simply delete
students from the database and then put them in illegal status,
and the litigants who are representing the students said, no,
you cannot do that. You cannot delete people from a database.
That's not how it works. If you want to take
(37:30):
away a student status, you actually have to serve them
with a notice that they're going to be placed into
deportation proceedings and then actually get an order deporting them.
That's how you do it. You can't just delete them
from the database. And it appears the administration has agreed
and it has restored the students who are deleted from
the database. Back on to the database. Now, the question
(37:54):
is they haven't said they're doing that for all of
the students yet, and so there are some students who
are are still going to be suing because they specifically
haven't been restored to the database, and so those cases
will continue. But there has at least been some acknowledgement
that this act of deleting you from the database doesn't
(38:17):
put you into a legal status.
Speaker 2 (38:19):
Do you know why the Trump administration decided to change
its policy here?
Speaker 3 (38:25):
They literally lost in every single court. There wasn't one
court who agreed. There were tens of these cases, and
in every one of the cases they lost. And there's
just nothing in the regulation. You can go to the
Student Visa Regulation EIGHTCFR two fourteen point two F in
case anybody's interested, and there's nothing in there about this
(38:45):
about being able to just delete someone from the database.
And that caused them to be an unlawful status. And
so because of that, now in this new world where
there's no deference given to administrative agencies, sometimes that actually backfires.
And so here they're not going to get different to
something that isn't even in the regulations. You can't find it,
(39:09):
and so that's why they've lost all of these cases.
Speaker 2 (39:12):
Thanks so much, Leon. That's Leon Fresco of Holland and Knight.
And that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com slash podcast Slash Law,
and remember to tune into The Bloomberg Law Show every
(39:33):
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:09):
We've lost about one out of every five butterflies from
twenty to twenty twenty. Scientists released a new study last
month showing that in the last twenty years, nearly one
quarter of all butterflies have been wiped out, with the
loss of habitat being one of the major causes. It
was just at the end of last year, after years
(00:30):
of scientists warning that the number of monarch butterflies were shrinking,
that US Wildlife officials put the monarch butterfly on the
endangered species list. It's really quite troubling to see that
monarch populations are declining, and if there aren't enough flowers
to feed monarchs, imagine all the lesser known pollinators that
aren't getting the things that they need. But this month,
(00:51):
the Trump administration issued a proposed revision to the Endangered
Species Act that would cut nearly all habitat protections for
injured species like the monarch butterfly, the manage, the northern
spotted owl, the whooping crane, and the green sea turtle,
just to name a few. Turining me is environmental law
(01:11):
expert pat Parento A. Professor at the Vermont Law and
Graduate School. So that the Trump administration wants to scrap
how the government defines harm in the Endangered Species Act,
tell us how it's been defined since basically the Reagan administration.
Speaker 1 (01:29):
So the Act prohibits was called take of protected species,
and take is further defined by a whole string of
verbs including kill, wound, trap, but also harm or harassed.
And it's those two words harm and harassed in the
(01:50):
Endangered Species Act of nineteen seventy three. That were new concepts,
and it took some time to define what those concepts meant.
But in regards to harm, there was a very critical
decision issued way back in the early nineteen eighties actually
by the Ninth Circuit Court of Appeals in a case
(02:11):
out of Hawaii involving the Palila bird, an endangered bird,
which ruled that destruction of habitat constitutes harm. And as
a result of that decision, the Department of Interior under
then Secretary Babbitt promulgated this rule, defining harm to mean
(02:32):
actions including habitat modification that actually kills or injures listed
species by interfering with essential behavioral conditions like breeding, feeding,
and sheltering. So it's a long definition, but its bottom
(02:52):
line is the court's ruled that habitat loss is a
take is prohibited under the d Species Act. Congress subsequently,
after the Polila case, enacted an amendment to the Endangered
Species Act in nineteen eighty two. I was there, I
testified on this, which said, Okay, to protect landowner from
(03:16):
finding themselves in violation of the Act, we're going to
create a special permit process, which is called the incidental
take permit, and we're going to require that landowners, if
they want one of these permits, come up with a
habitat conservation plan to mitigate an offset the loss of
(03:38):
habitat for the activity logging, mining, grazing, all kinds of
activity that would result in loss of habitat. So the
point is this harm rule has a very long history,
and it's one that Congress deliberately codified in the Endangered
Species Act. That's why they created the permit for So
(04:00):
the idea now that you would eliminate the definition of
harm just rescind it, wipe it off the books, and
not replace it, which is what is being proposed by
Secretary Bergham. It's crazy, I mean it flies in the faith.
What's the surprise here of this whole history of how
(04:22):
the courts and Congress have dealt with this critical idea
of protecting habitat. When you think about it, habitat loss
is the major driver of extinction in the United States
and globally. So to just eliminate it from the one
law that's designed to prevent extinction, it's really nut the
(04:46):
proposed change.
Speaker 2 (04:47):
Are they saying it's because of the Supreme Court's decision
in Low or Bright eliminating the Chevron.
Speaker 1 (04:53):
Doctrine, Well they are. The irony, of course, is the
United States Supreme Court, in a very very famous case
which I submitted an amicus brief on behalf of E. O. Wilson,
the late great conservation biologists, the biologist, by the way,
who first warn the world that we were in an
era of extinction. It was his work way back in
(05:14):
the sixties that identified the loss of habitat as the
main driver of extinction. Right, So we filed this brief
in a case called sweet Home versus Babbitt, in which
the US Supreme Court upheld by a sixty to three
vote the harm rule that I just described. Right, So,
now you have the Trump administration saying, yeah, but the
(05:38):
Supreme Court has overruled Chevron, which means, of course that
the Supreme Court's decision in Sweet Home is no longer controlling.
But wait a minute. When you read Chief Justice Roberts's
opinion in Low for Bright, he specifically says that decisions
that have upheld rules based on Chevron are still in effect. Yea,
(06:00):
So now you have the Trump administration saying, well, but
we're going to change the rule by eliminating it for harm,
and therefore we don't have to give the prior interpretation
any significance, any difference at all. But that's not what
Robert said. He said that prior decisions based on Chevron
(06:23):
defference are entitled to what are called statutory starry decisives,
in other words, precedent right. And he made it clear
that it wasn't just a matter of saying, oh, well,
never mind that a rule was formally upheld. He said,
you have to justify, you know, new decisions to change
your rule under the usual requirements of reversing prior rules, right,
(06:49):
which is what we call the state farm doctrine, which
means you have to justify repealing a rule based on
change of circumstances, new facts, something has happened that justify
rethinking why the original rule should be completely reversed. But again,
(07:11):
all of the evidence suggests there's no basis for eliminating
habitat protection from the Protections of the Endangered Species Act.
If anything, what we're seeing is that habitat loss is
now affecting all species. You know. The Cornell Lab, you know,
the famous ornithological lab at Cornell University, issued an incredible
(07:36):
decision this last year saying three billion birds three billion
birds have disappeared from the United States since nineteen seventy
and that's primarily related to habitat loss. Pesticides and other
things come into play. Habitat loss is the reason that
(07:56):
we're losing our incredible array of species. So this idea
that the local Bright decision somehow justifies eliminating protection for
habitat is once again crazy.
Speaker 2 (08:12):
So the Center for Biological Diversity issued a report identifying
ten endangered animals at risk from this proposal by the
Trump administration. They include the whooping crane, monarch, butterflies, manatees,
the northern spotted owl, the Florida panther, desert tortoises, etc.
And a lot of those are very popular species that
(08:35):
most of the public would probably want to protect.
Speaker 1 (08:39):
Right at one time, you could measure the abundance of
monarch butterflies in the billions, and the western population of
monarch butterflies has been reduced by I think something like
eighty percent maybe more and is really in danger of extinction.
It's incredible to say that butterflies that used to light
(09:02):
up the landscape all across the United States. I mean,
we have them right here in our fields at are
place here in Vermont, not as many as we used
to have, but still it's like the passenger pigeons, right,
Flocks of passenger pigeons, history says, used to darken the
skies throughout much of the central part of the United States.
And then just we're gone, and we're seeing the same
(09:25):
thing with species like monarch butterflies. And we've got an
administration you know, that wants to eliminate the one law
that's designed to prevent that, or to substantially weaken it,
if not eliminate it. It's really quite remarkable.
Speaker 2 (09:41):
So would this Trump administration change limit the Endangered Species
Act to prohibiting only intentional direct killings.
Speaker 1 (09:51):
Of animals, right, And that's what Justice Scalia's descent in
this Sweet Home decision said, is that you can only
interpret harm in the same way that you interpret the
verb kill. So to kill means direct impact on the
individual animal, as Scalia famously put it, a strikes B.
(10:16):
But in her concurring opinion in Sweet Home, Justice O'Connor that, now,
wait a minute, eliminating the ability of a species to
reproduce is the essential kinds of injury. How can you
say that only a strikes B constitutes harm, you know,
(10:37):
eliminating the breeding habitat of species and their ability to reproduce,
essentially eliminating the species. So it was a fascinating interchange
between O'Connor and Scalia, not the first to last, by
the way of those who disagreeing in print, sometimes quite
tartly over how to interpret a statutory term. So once again,
(11:00):
and this whole idea that only things that directly affect
the species is ignoring what the science is telling us
is the major reason we're driving species extinct.
Speaker 2 (11:14):
So then do you think that when this is challenged
in the courts, that the administration will lose?
Speaker 1 (11:22):
Yes, they should and they will. Now, when it finally
goes back to the Supreme Court, we'll actually see whether
Justice Roberts you know, sort of caution in the Lower
Bright case stands up. In other words, is he going
to look at this question of can you just simply
wave your hand, you know, and eliminate this harm rule
(11:45):
without any justification at all other than to say we
don't think it's the single best reading of the statue.
That's the rationale that the Trump administration is using to
repeal the harm rule. You know, the single best interpretationation,
says the Trump administration is Kalia's descent in sweet Home.
So when this thing finally if it does, then it
(12:08):
may not get back to the Supreme Court. We'll actually
see whether or not just saying we're going to repeal
a rule because in our view, the Trump administration view,
it's not the best reading of the statute can prevail.
And by the way, you know, the Trump administration is
not going to get any difference for that interpretation either.
(12:29):
That is the central message of Loper Bright. Nobody, no
agency gets difference anymore under Lower Bright, including Trump.
Speaker 2 (12:39):
After the biotech and genetic engineering company said it successfully
created three dire wolf puppies. The Secretary of the Interior,
Doug Bergham, said, the only thing we'd like to see
go extinct is the need for an endangered species list
to exist. He compared it to Hotel California, where once
you're on the list, you never get out.
Speaker 3 (13:00):
Wow.
Speaker 1 (13:02):
So the dire wolf story, it turns out those aren't
dire wolves. They're an amalgamation of genetic manipulation of different
painted species. If you really look behind the headlines of
that story, not the dire wolf, get the knockoffs. It's
(13:22):
a Hollywood production of a dire wolf. That's not what
we're talking about with endangered species conservation. The original Act
in nineteen seventy three had some incredible observations, really profound observations,
things like in danger, species hold answers to questions we
(13:44):
haven't even learned how to ask. I mean, it was
really profound, right. It was like the driver of evolution
on Earth is speciation and the way that species adapt.
And of course nine of the species that ever existed
on the Earth are extinct, so extinction is a part
(14:08):
of the natural process. But the difference is human caused extinction,
which again EO. Wilson and others documented and proved was
accelerating at sometimes one hundred times and other times even
a thousand times greater than what they called the background
(14:28):
rate of extinction, which is sort of the natural evolution
of species on Earth. Right, So this idea that we
can recreate species, this sort of Jurassic Park notion that
we don't need to preserve the natural diversity of the Earth,
the natural process of evolution, that we can invent species
(14:49):
whenever we feel like it really is a Hollywood idea.
It has nothing to do with science, nothing to do
with the fact that you know, natural species, including insects,
which are in great decline, are incredibly important as we know,
to human survival on the Earth. Scientists are saying, if
we continue on the path that we're continuing to drive
(15:12):
more and more just simply insects species to extinction, we're
going to have tremendous impacts on pollination, tremendous impacts on
food supply. And you can do the same thing with
the oceans. You destroy the coral reefs. That's a third
of the marine biodiversity on Earth. When you think about
all of the protein that we get from the oceans,
(15:35):
that depend on natural systems, natural organisms that are attracted
to coral reefs. You're just inviting catastrophe when you suggest
that we don't have to be concerned with preserving the
natural history of the world.
Speaker 2 (15:52):
Is this all about making it easier for oil and
gas producers? What's the goal of the Trump administration.
Speaker 1 (16:02):
Yeah, I mean it's property rights, it's landowner rights in part.
Although what we've seen with the Harm rule in place
is that there have been millions, more than twenty million
acres of land, private lands that have been conserved under
this incidental take permit program I mentioned, and allowed logging
(16:25):
and mining and other activities to occur, just with offsetting mitigation.
So it's not true that the Harm rule has prevented
anything anything. There's no evidence that any landowner has suffered
what's called a taking, a constitutional taking of property as
(16:49):
a result of the Endangered Species Act. Never, never, So
the whole idea that you have to eliminate this one
mechanism of protection is simply wrong. There's no fact, no evidence.
If you look at the proposed rule to resind the
Harm rule in the Federal Register, and by the way,
the comment period is still open until May nineteenth. For
(17:11):
those who are interested in that, you can go look
at it. It's a very short statement. We're simply repealing
the harm rule. We're not replacing it. We're just pretending
like we're going to erase the word from the statute,
which of course violate canon number one of statutory interpretation,
which is every word of a statute must be given effect.
(17:36):
You don't just erase it because you find it difficult
or whatever. You have to do something with it. And
the proposal is to do nothing with it, to just
erase it as if it never existed.
Speaker 2 (17:50):
So would this move by the Trump administration, would it
got the Endangered Species Act?
Speaker 1 (17:57):
It would drive a huge hole through the Act, for sure.
There are other reasons why the Act still you know,
provides protection. It still requires consultation, although there's another you know,
Burghum directive now saying that we're going to shorten up
the time for consultation. When a proposed activity oil and
(18:19):
gas leasing for example, or other forms of fossil fuel development,
where that threatens an endangered species, there's a requirement that
there be consultation. And there's still a provision that says
if an action would jeopardize a species, it can't go
forward unless it gets an exemption and so forth. But
the point is by taking out the central protective mechanism
(18:42):
of the Act, the take prohibition applies to everyone, private parties, state,
tribal entities, counties. I mean, it's the most comprehensive provision
in the Act that protect species no matter where they are,
whether or not federal land or not private land, state land,
(19:03):
or wherever they are, they're protected by the take prohibition
and this incidental take permit process.
Speaker 4 (19:09):
Right.
Speaker 1 (19:10):
So it's a really central mechanism of the law. It's
not the only one, and it doesn't mean that the
law would simply disappear without it, but the ability to
protect habitat on non federal lands, which is where most
of the habitat is, would be severely diminished.
Speaker 2 (19:29):
There's a lot at stake here.
Speaker 1 (19:31):
I don't think this one is going to survive. I
really don't. But the point is we're going to have
to fight about it for years instead of moving forward
with making the laws work better. And certainly there's ways
of improving the way the Endangered Species Act works to
make it more effective at recovery, for example, and to
(19:51):
provide more incentives for landowners. That's fine, you know, let's
have that conversation. But just going backwards that's not going
to help anything.
Speaker 2 (20:00):
We'll see what happens after the notice and comment period
is over. Thanks so much.
Speaker 3 (20:05):
Pat.
Speaker 2 (20:06):
That's Professor Pat Parento of the Vermont Law and Graduate School.
The Trump administration's immigration moves have been in the headlines.
Last Friday, it was the FBI's arrest of a Wisconsin
judge for allegedly helping an undocumented immigrant evade ICE borders
are Tom Homan defended the arrest.
Speaker 5 (20:27):
You can sit aside and watch you. You can argue
against us, always want, and protest all you want. But
when you cross that line. I've said this to a
thousand times, when you cross that line to impediment or
annoying Harbard, concealing an illego alahaim Ice, you will be prosecuted,
judge or not.
Speaker 2 (20:44):
And then the removal of three children who are US
citizens to Honduras with their mothers who were being deported.
Secretary of State Marco Rubio set it's up to the
families to decide whether the children go with their mothers
who are being deported, or stay in the US.
Speaker 4 (21:02):
If someone's in this country unlawfully, illegally, that person gets deported.
If that person is with a two year old child
or has a two year old child and says, I
want to take my child with you with me, Well,
now what you have two choices. You can say yes,
of course, you can take your child, whether they're a
citizen or not, because it's your child. Or you can
say yes, you can go, but your child must stay behind.
And then your headlines would read us holding hostage two
(21:25):
year old, four year old, seven year old while mother deported.
So the mother, the parents make that choice.
Speaker 2 (21:31):
My guest is immigration law expert Leon Fresco, a partner
at Holland and Knight. Three US citizen children from two
families were removed from the United States with their mothers
who were being deported to Honduras, and Secretary of State
Marco Rubio defended the removals, saying it was the mother's choice.
Speaker 3 (21:50):
Well, this is not an uncommon fact pattern, which is
there are many of these so called mixed status families,
and what that means is that one or both of
the pirates might be documented. And then obviously, if a
child is born in the United States, the child is
a US citizen, and the question is what happens there?
And normally what happens in that situation is ice like
(22:12):
in any arrest, there's a car and there's a parent
and a child in a drunk driving situation. If you
have an arrest, what happens is the authority say, what
would you like the dispensation to be for the child?
Is there some plan that you had in this situation,
and it might be in the case of a US
citizen child of an undocumented parent, an aunt, an uncle,
(22:34):
a cousin. Dispute in this case is that I didn't
give that opportunity for those wishes to be carried out.
And that's what the federal court judge is going to
have to determine, is was that plan not carried out?
And the reason this matters is, yes, the US citizen
could come back into the US, but it takes time
(22:54):
to go to an embassy and get a passport appointment,
and get that evidence and do all of that that
could take months in the ordinary course. Is perhaps the
court would want to order that much more quickly and
not have to go through the process of getting a
passport and doing all of those appointments and evidence and
everything else, or maybe the court will simply order that
(23:15):
a passport be printed immediately and get the citizen back
to the United States if that is the parent wishes,
which that seems to be the allegations in these complaints,
and so that's what's going to have to be worked
out here. But yes, sometimes the parents actually say to
bring their children with them back to the home country,
(23:36):
and that's their right and they can do that. And
sometimes they want the children in the United States and
that's their right. But usually this gets worked out through
some process, and Ice is currently saying that got worked
out here, and this is what the parents chose. The
lawsuits are saying the parents didn't choose this, and that's
what's going to have to be played out in court.
Speaker 2 (23:56):
So what happens if one parent wants the child to stay,
Let's say it's a parent with US citizenship, and the
other wants to take the child with them.
Speaker 3 (24:06):
That almost puts us into one of those famous Elim
Gonzalez type situations of the past, and that would actually
be a very interesting question. In a scenario like that,
What would normally happen is then that's an issue for
the state court. Child custody judges to determine, and in
that situation, the state court child custody judges are going
(24:29):
to have to determine what's in the best interests of
the child. And that may certainly be a completely different
analysis if a child is being deported to a country
where the conditions are very similar to those in the
United States as opposed to one where the conditions are
quite onerous and very difficult for the child to live in.
And also is one parent capable of caring for the
(24:52):
child is the other one, And so all of that
would need to be determined by a state court judge.
And that's what would happen in a case like this.
Speaker 2 (25:01):
So does there have to be a hearing before the
child can be removed with the parent?
Speaker 3 (25:07):
No, the problem is there's no hearing at all. The
child is a US citizen, and so the immigration court
has no jurisdiction whatsoever for any child of any kind.
But what has to happen is that if there is
a parent and a child that are physically together and
you're trying to deport the parent only you have to
(25:29):
give the parent some process visa the what they want
to have happened to the child. And so the parent
is well within their rights to say I want the
child to come with me. That the parent doesn't lose
jurisdiction over the child by virtue of the deportation, but
they also have the right to say I have this
other plan for my child, and they can give the child,
(25:53):
who's a US citizen, to someone in the United States,
and then it will be up to those individuals who
are remains with the child if they want to get
some sort of formal guardianship established in the courts. They
don't have to, but ideally they would so that you know,
decisions can be made about the child's life by this guardian,
(26:14):
whether it be school decisions or health decisions or anything
related to that.
Speaker 2 (26:19):
Apparently the mother was taken into custody while she was
attending a routine check in last week.
Speaker 3 (26:28):
Yes, the problem is there that those check ins were
quote unquote routine in the previous administration, but now those
check ins are not going to be routine because they
are going to be people without status reporting to ICE.
And so this is a fine line that ICE has
to balance, which is do they want people reporting to
(26:49):
these check ins or not, because if people don't report
to the check ins, obviously their fugitives and ICE will
have to catch them. But if people report to the
check ins and they're all detained, then they're going to
stop reporting to the chickens. And so this is the
challenge ICE is going to have to face, and they're
going to have to decide which one they prefer in
this situation.
Speaker 2 (27:09):
So now turning to another case that got a lot
of headlines last week a lot of attention is the
Justice Department charged Wisconsin judge with obstructing an immigration arrest
operation and concealing a person from arrest. Tell us what
happened here.
Speaker 3 (27:26):
Well, here you had a situation where a state court
judge as part of a routine state court criminal proceeding,
although it was a domestic violence proceeding, which certainly adds
to the complications here because obviously you certainly want to
try to punish people who commit domestic violence, but nevertheless,
this was a domestic violence based court proceeding. And what
(27:50):
happened here is that the judge heard and was aware
of the fact that ICE was in the building and
was looking to take custody over the person after their
hearing was going to be concluded. The judge then asked
ICE to go visit with the chief judge, and while
that was happening, then there was one ICE officer that
(28:13):
was still there that was in plain clothes, so the
judge didn't know there was still one government official still
there left who was observing all of this, and this
individual observed the judge then take this individual through the
jury box so that they could leave the building, and
then ICE had basically chased the individual down as opposed
to what they were expecting, which would be sort of
(28:34):
a much easier transfer once the person left the courtroom.
And so from that perspective, they charged the judge with,
as you said, obstructing an investigation and proceeding an arrest.
And interestingly enough, they didn't actually charge the judge with
harboring or concealing an undocumented person, which is sort of
(28:57):
the charge that's been discussed in the new that one
wasn't charged. It was just the normal any arrest, any investigation,
that you were obstructing any arrest, and that's what was charged.
And this is going to be a very interesting question
because it's going to be in the federal court for
the federal court judge to try to figure out does
(29:18):
the state court judge have this jurisdictional concern over the
court and being able to maintain their docket and being
able to maintain an orderly court system, so to speak,
that they can actually do something like this or does
that not extend out for the purposes of an arrest
(29:39):
or immigration law or anything else. Because I think what
the judge would probably say, although I obviously haven't heard
from the judge, is something akin to find this person
is an immigration fugitive, no doubt, and probably ICE. You
would want ICE to catch this evasion fugitive. But the
question is, once people who are in criminal court proceedings
(30:03):
are being asked to come into state court for those
criminal proceedings, if they know ICE is going to be there,
do you now want to make them a double fugitive
and have them be a fugitive not just from ICE
but also from the state criminal court, Which is what
will happen if people start thinking that ICE is going
to pick people up in the state court for criminal cases,
(30:23):
or do you want them at least to attend the
state criminal court sentence them, deal with that and then
ICE can get them later. So that's I think the
argument that the state court judge is going to make
and then Ice is going to say, no, that jurisdiction
doesn't extend to a judge being able to govern the
in and outs of how someone comes in and out
(30:44):
of a building, because at that point that is actively
thwarding a arrest, and that's going to be up for
the court to decide in that situation, who's right, who's
got the ability to govern the courthouse in that specific situation.
Speaker 2 (30:59):
Lee unreportedly the FBI had an administrative warrant. Is that
something a judge would be expected to comply with?
Speaker 3 (31:06):
Well, this is going to be another problem. They didn't
have a judicial warrant, they had an administrative warrant, and
so the administrative warrant, this is going to be another
debate and this this is a continued sort of issue
in the immigration laws. What does that administrative immigration warrant
get to from Ice? And really a lot of legal
commentators have said not much at the end of the day,
(31:29):
because all it allows you to do is to be
in a public space. Now, Ice was in a public space,
they were not in a private space in the courthouse.
But at the end of the day, does that administrative
warrant actually suffice for the purposes of the elements of
this crime, which is that you are obstructing in a
(31:53):
lawful arrest, And so that's going to be the question.
Perhaps the court will say you needed a judicial warrant
for that obstruction to take place, and the administrative warrant
was not sufficient to meet the elements of the charge,
and so the judge will be able to get exonerated
on that. That's definitely going to be another claim that's made,
(32:14):
and we'll have to see if the court wants to
be persuaded by that argument, which is that the administrative
as opposed to the judicial warrant is not enough.
Speaker 2 (32:23):
Regardless of you know, the facts here, what the ice
did or what the authorities did. The FBI was very
unusual in that they didn't allow a sitting judge to
surrender to authorities, but rather they arrested her at the
courthouse and they had her sitting for hours in a
holding cell.
Speaker 3 (32:44):
That's certainly always this debate about what happens when you
arrest someone and if someone is not a public safety thread,
is the person allowed to enter custody with a lawyer
and with arrangements done because the person is not going
to be a public safety threat. They're not going to
be a fugitive. One would certainly imagine that would be
the case with a judge, obviously, because the judges an't
(33:05):
offenserve of the court has to follow the law. It's
not going to be a fugitive, it's not going to
flee to some other country, it's not going to commit violence.
And so those criticisms are obviously in line with what
traditional practice is and it will be up to the
government officials to explain why they felt the need to
(33:25):
deviate from that and not allow a reporting in that situation.
Speaker 2 (33:30):
So is it an escalation of the Trump administration's sort
of standoffs or fights with federal judges to arrest.
Speaker 3 (33:40):
A judge, Well, this would be a state court judge.
But I mean certainly that is the rhetoric that is
coming out now, which is that there will be no
interference with these ICE operations, and if there's anyone actively
interfering with ICE operations, they will be arrested. Whether it
would be for this basic which is interfering with any
(34:01):
arrest that's the one the state court judge was arrested for,
or whether it's the harboring or concealing offense in EUSC
thirteen twenty four. That's immigration base. And certainly there's executive
orders that are coming out now today about the same issue,
basically instructing the Department of Justice to go look for
(34:22):
these cases and to arrest people who are obstructing these investigations.
And the courts are going to have to decide what
is obstruction and what is people trying to either maintain
their judicial proceedings, or cities trying to govern their cities,
or states trying to govern their states. Where does the
(34:43):
line cross over from non cooperation to obstruction and who
can do what? And I think if there's enough of
these prosecutions, you're actually going to see multiple cases going
up through the court where there's nuances in each situation,
and so well, that's going to be quite fascinating to watch.
Speaker 2 (35:03):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Leon Fresco of Honda Knight. There seems
to be some movement by the government in the case
involving Kilmar Abrigo Garcia, who was mistakenly deported to l Salvador.
I'm June Grosso. When you're listening to Bloomberg so no,
it appears that there's been a break in the standoff
(35:26):
involving or Brego Garcia, who I think almost everyone knows
his name by now, who was mistakenly sent to prison
in l Salvador. The judge in the case granted the
Trump administration a week long pause in detailing what steps
they're taking to get him back. But apparently the administration
(35:46):
said in court papers that it had held appropriate diplomatic
discussions with l Salvador.
Speaker 3 (35:53):
Apparently there is some belief that this is going to
be resolved in some amicable manner that will make the
litigants happy on the plaintiff side, on Abrego Garcia side,
and allow the case to be dismissed against the government. Obviously,
there would be no other reason why, if you were
an attorney with a client in that Elsavador in prison,
(36:14):
why you would allow a week long continuance for this.
And so what's not clear is if there's going to
be just a release from custody and not a repatriation,
and then the plaintiffs are going to have to figure
out how the repatriation occurs, or if there will actually
be a full fledge repatriation, or if there will be
(36:34):
some ability to go to Mexico or something like that.
All of this is undetermined, but certainly I would imagine
that they're close enough to a settlement at this point
that that's why both the judge in this case and
the plaintiffs have agreed to move forward with that extension,
because otherwise there would be no logic to it.
Speaker 2 (36:56):
We would watch in courtroom battle student protests over the
Trump administration revoking student visas, and now they've apparently walked
that back.
Speaker 3 (37:08):
Yes, as we discussed last week, there was always this
question about whether ICE had the ability to simply delete
students from the database and then put them in illegal status,
and the litigants who are representing the students said, no,
you cannot do that. You cannot delete people from a database.
That's not how it works. If you want to take
(37:30):
away a student status, you actually have to serve them
with a notice that they're going to be placed into
deportation proceedings and then actually get an order deporting them.
That's how you do it. You can't just delete them
from the database. And it appears the administration has agreed
and it has restored the students who are deleted from
the database. Back on to the database. Now, the question
(37:54):
is they haven't said they're doing that for all of
the students yet, and so there are some students who
are are still going to be suing because they specifically
haven't been restored to the database, and so those cases
will continue. But there has at least been some acknowledgement
that this act of deleting you from the database doesn't
(38:17):
put you into a legal status.
Speaker 2 (38:19):
Do you know why the Trump administration decided to change
its policy here?
Speaker 3 (38:25):
They literally lost in every single court. There wasn't one
court who agreed. There were tens of these cases, and
in every one of the cases they lost. And there's
just nothing in the regulation. You can go to the
Student Visa Regulation EIGHTCFR two fourteen point two F in
case anybody's interested, and there's nothing in there about this
(38:45):
about being able to just delete someone from the database.
And that caused them to be an unlawful status. And
so because of that, now in this new world where
there's no deference given to administrative agencies, sometimes that actually backfires.
And so here they're not going to get different to
something that isn't even in the regulations. You can't find it,
(39:09):
and so that's why they've lost all of these cases.
Speaker 2 (39:12):
Thanks so much, Leon. That's Leon Fresco of Holland and Knight.
And that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com slash podcast Slash Law,
and remember to tune into The Bloomberg Law Show every
(39:33):
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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