Transcripts For CSPAN3 Immigration Policy Discussion At Migr

CSPAN3 Immigration Policy Discussion At Migration Policy Institute Conference July 13, 2024

That is true for the speakers as well and the audience. So i will not use any time to repeat what the speakers would need for introduction, but they come from three important perspectives on the debate. This is obviously a law and policy conference. I think that we will discuss a little bit more law than we have discussed in other panels, and hopefully a little policy as well. So the broad theme for the panel which is true for a lot of the immigration stuff since trump took over is some important issues having been sort of shuttled between and among three branchs of the government. In one way of the wall leaning from one branch of the government, and each branch of the government is putting the can in the other persons lap, and hoping that the can will stop there somewhere. Many of the cans have not stopped. So this is the chance to see where the cans are and where they will finally land. So i will begin talking to the panelists in more of a conversation topic, and so we can get into the issues. And let me start with sis celia, because she represents the uclu which is the president s conon the side more than any other organization, and it has brought more than 100 cases against this administration. As law school, every law student would salivate for the 100 cases, but we are going to stick to one or two. And start with daca, and this is one audience that i dont have to say what daca stands for. So start with daca, and the can has been shuttled by three branchs of the government, and the president ended the program, and lawsuit was brought almost the very next day to challenge injunction and the president said it is the job of congress to do this, and david hale is going to end up doing nothing, because congress could argue that the court were busy and they did not intervene to provide the protection, and that can has to be stopped. We passed a bill in the house. I have to point that out. And nothing is a little inaccurate there. And so, i will i will give you some of what has happened in congress, but it is not resolved. Fair enough, chris. And so on what we are going to hear an argument on the daca case. And cecilia tee up for us what are the challenges that you are seeking in the case, and what is the governments defense, and how is the court going to rule, and when is it going to court . Sure. Thank you, mousse, and thank you all for inviting us to the conference. It is always very illuminating. And so we have filed over 100immigrationrelated cases against the Trump Administration, but the daca rescinding case is not one of them. I am not one of the litigators on that case and i should make that important disclaimer, but i have spoken to many of the attorneys who are doing that including the folks from the National Immigration law center from the state of california and other states and municipalities, and make the road new york, et cetera, et cetera. But to take away that i would highlight both from the daca rescission cases from the Supreme Court now as well as every other major Immigration Initiative from the Trump Administration and i would include the muslim ban, and cluster of policy change, and the public charge rule, and rescission of the dhaka, and also the sanctuary city policies of this administration. The lesson from all of the many Court Battles over all of those issues is twofold. The first lesson is that litigation in support of immigrant communities has never been more important than it has been under the Trump Administration, and so for all of you georgetown and other Law School Students here, you are in the right place doing the right thing and to get ready to do more of the right thing. So, even when we have unfortunately lost as with the muslim ban when we got injunctions from all of the lower federal courts, but ultimately the state of hawaii lost in the Supreme Court, and we bought time for people, and in the case of the muslim ban, countless people were able to get to the death bed of a loved one here in the United States, and attend someones graduation, and be there for the birth of the child, and be at an important academic conference or business meeting, et cetera, et cetera, and in the case of the rescission of daca, i am optimistic about the daca case, and dont chak thshake that, pl but i am optimistic, and even if, even if the Supreme Court were to rule against all of, all of the immigrant groups and states and municipalities that are harmed by the rescission of dhaka, that kind of litigation even when unsuccessful has so many consequences to protect people, and again, to buy people a little bit more time, and buy people more time with documented status, and dacamented status, and it is a important vehicle i think to talk about how we think in this country about immigration. It is important to look at how the asylum mistakes have been made in the immigrant Rights Groups have made, and mistakes in talking about the path to legal citizenship in the past, and the dreamers, themselves, have been in the lead both as clients in litigation, as litigants and as advocates in their own right and in pointing out some of the mistakes with respect to people who are already in the United States and lack lawful status. So that is lesson one. Lesson two is a flipside. Most of the claims are under the Administration Procedures act and most of those cases are about the abuse of executive authority, about Trump Administration taking to an extreme an illegal extreme laws, the application of laws that are already on the books. Lesson two is that we cannot rely on the professed will of the executive branch even when we have friends in the executive branch. We cannot rely on executive Branch Officials to comport with unwritten norms and the enforcement of laws that are repeatedly subject to abusive, illegal and immoral, immoral application must be struck from the books one way or another. That is the way i see the abuse starting with the muslim ban, and the minority statutory that was the beginning of the asylum ban proclamation. And people are picking up loaded guns that are lying around in the immigration and nationality act, and in the jurisprudence of plenary power and old Supreme Court precedents. And to be clear, i should be really clear about one thing as a litigator, all of the policies that our agency has challenged under the Trump Administration is illegal under law. I am not saying that precedents need to be overturned in order to challenge the illegalities of the trump policies, but if we no longer want the loaded weapons the be lying around for the next donald trump, the next abusive White Nationalist, and i dont say that lightly, but face it, these are the White Nationalist policies [ applause ] then we need to make sure that the loaded is disarmed. So we have seen this with the use of the expedited removal of the statutory maximum which all of the previous administrations in both parties have, you know, without conventional wisdom exceeds the bounds of due process, and the public grounds of municipality which we will talk about this on panel, and also the mass detention without individualized hearing, and exceptional, exceptional under u. S. Law, and civil detention, and the immigration detention is the only area in u. S. Law where civil detention can be imposed without an individualized hearing on the flight risk in danger, and extraordinary, and yet that is approved by the Supreme Court so far. And efforts to limit the review of other reviews to challenge the systemic litigation. So, i think that Going Forward and david and kate will talk more about this along with mousse, we really need to uproot the frame of law breaking that has infected immigration policy making since 1996 most pertinently, and both from the law and from our framing of the policy debate. No more get right with the law. Okay. No more legalizing the border so that we can look at the system to look at individuals as due process and individualized scrutiny of people as individual human beings, and that is my take away. Thank you. And just the philosophical case, and it is going to be argued november 12th. You have argued before the Supreme Court very skillfully, but you are not going to argue this case. I lost. It was a surprise twice to do this argument. Yes. Could you tell me who it is, and how the choice was made . Sure. Gangs, im not one of the litigants, but i was peripherally involved in discussion about this. And you all know that ted olson, the noted conservative and member of the Supreme Court bar is going to be arguing the case in support of daca against the rescission of daca, and it is an interesting, and i have to say somewhat painful discussion. There were what is it, seven separate lawsuits coming out of three different districts, and Federal District courts that are consolidated in the Supreme Court, and states and municipal tis i should add Michael Mongen who is the solicitor general of california is going to be splitting the argument with ted olson, and with the pending Supreme Court, and contingent on the Supreme Court approval, and that is what the respondents have made. And so, this is what happens when our issues get to the Supreme Court, and Nancy Moravetz has talked about this topic where we have an entrenched Supreme Court bar that is not very diverse, and it does not necessarily represent movements and when the movement cases make it for the court, and so there was a pretty fraught discussion i think among, and it is no secret among the various groups of the counsel and parties, and ted olson, you know, to give credit where credit is due, is someone who i think that he is a choice calculated to appeal as broad a group of justices as possible. It is a decision calculated to win a majority. But i must say that as someone who is a immigrants Rights Movement lawyer, and aclu lawyer, and there are so many extraordinarily brilliant lawyers in our movement who could argue this case. And i have to just express my personal sentiment that i think that ted olson is a brilliant choice in some ways, but i also feel some regrets, i guess. Not regrets, since it was not my decision, but a little sad that we dont have a Movement Lawyer up there. So, you said that you were optimistic about the daca case. Could you tell me why you are optimistic when three or four years ago on the case that had the same arguments that we by now know that the four conservative judges voted and never know about the vote, and it was a tie decision. They probably voted to say that it was unlawful, and why do you think that dacar is going to be unlawful . Well, obviously, the Supreme Court affirmed the Supreme Court circuit by a 44 tie, and i guess that twoword answer that legal realism, and i think that this case is a political one, and like many hot button cases in front of the Supreme Court. And i have to believe that there are not going to be five justices who have the stomach to agree with the Trump Administration on this one. I think that we have seen this court already, and who will in the census case, the right way, and i think that this, too, daca would be a road too far to get to the technical reasons that this case is different. There is an argument that as to dapa, the inila had a adjustment to the parents of dreamers, and which isnt present here. And theres also alliance interest that here we are talking about the rescission of the program that is in effect for years already, and that the people have come to rely on that. And finally, you know, there is a dynamic here of the pattern of the solicitor general here providing incorrect data to the court, and there was the Trump Administration saying that daca was in the texas case in the dapa case, the Trump Administration took the position that the Obama Administration had applied daca in a boilerplate way, and that basically anyone who met the qualifications for daca under the jay joeh johnson memo would relief, and judge hainan relied on that and the fifth circuit also relied on that, and the argument here is that evidence since then has demonstrated that in fact, the Obama Administration was applied the agency under obama, and the Trump Administration, and applying for it, and it was a rubber stamp, and they were not handing out daca to everybody. So i think that, this correction and development of the record in the subsequent litigation, and that is very important. Okay. So i let you off soon. But, the rule which a lot of people who are earned can about here is going to dedefect, and nine lawsuits brought, and how there is good fallout from the Trump Administration, and 14 attorneys general of the United States brought action against the charge. It was a lively discussion from the Southern District of new york, and what you are doing with the public charge is, and what is the time line that people should be looking at . Sure. Again, a disclaimer that we are not involved in the fully charged litigation, and none of the cases is the public charged case, but i did speak to niko from nmilk about the hearing tht took place in california last week. As to the time line, you know, i think that almost the litigants with the exception of one case has sought a preliminary injunction, and the idea is to get the rule enjoined before the october 15th Effective Date as you told me, since i was on the train this morning and not preparing for this and not looking at the news, that the readout from new york was positive and for the challengers, the readout was also positive on the Northern District of california case. I will say that in the Northern District of california, the district judge did express some concern about the request for a nationwide injunction. She has requested additional briefing on the scope of injunction and urged the parties to try to reach an agreement on the scope of injunction, which i dont believe it is going to happen, based on a little inside information, but it is interesting, because we have seen the 9th circuit in the return to the mexico case which is an aclu case litigate the preliminary injunction that we have gotten from the court that was nationwide in scope to the 9th circuit. So i think that what you may see if we can read the tea leaves from the argument in front of judge hamilton is that she may be preemptively trying to narrow the geographical scope of the injunction. Okay. But on this, we talked about the asylum a lot in to a good part of the conference and many of us are surprised by the Supreme Court letting it go ahead the new rule on the transom country go forward and how do you read that on the merits . The Supreme Court did not purport to rule on the merits at all, and so we have to take them on their word at that, and continue the litigate it. The stay, and there is no getting around the fact that the stay order is painful. And, you know, we have a situation where the previous panels went through in greater detail that we have the first asylum proclamation which put everybody through the ports of entry, and then the administration was bottlenecking, and then they did return to mexico which is leading to estimates of 20,000 people including kids. Stuck in mexico. Sleeping on the ground, and then the third world country proclamation. It hurts, because we are desperate to get relief for people who deserve to have asylum in our country, and who have been turned away in every possible juncture by this administration. So, you know, i think that we take this court at its word. We keep going with the litigation, and keep litigating it, and build our word to show the harms clients, and thats it. Okay. David, now your turn. You are as you represent the will of the people. You really by now have the more interesting places in this debate, you spend a lot of time in the administration the last administration, please. On the hill, both as minority and as majority counsel. And so, just start with the daca thing. Sure. Because, obviously, the hope was congress would intervene in the daca case. First on the budget, which it decided not to do, but because the litigation was going, people were protected, and that sort of is going to end as we now discuss at some point. But you did also manage to pass impressive legislation in the house and got nowhere in the senate. Let me ask you two questions. If the Supreme Court rules that the end of daca was lawful, what do you think the congress is going to do . Sure. And even if the Supreme Court says it was to end it was not unlawful, what do you think the court will do . Sure. So if i can just address first of all thank you to npi, the clinic, georgetown, appreciate the invitation. So one, i want to say i am not as i am not as optimistic, i should say, about the Supreme Court. I think the Supreme Court

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