Ep 206 — Who’s Afraid of the Fourth Amendment?

Again, this is the Supreme Court's fault for making everything so bifurcated and balkanized and forcing there to be all of these individual lawsuits and saying there can be no relief that just says, stop breaking the law, Donald Trump and your minions, right? That every single person affected has to individually sue and no decision is presidential. That's this chaos that the Supreme Court has created. And I don't really know what comes next, but it's very clear to me, you know, that that the Justice Department is not going to abide by it. Welcome to Law and Chaos, where the Justice Department thinks it doesn't have to obey court orders. It can just make up its own rules. and the former Duke of York is under criminal investigation. Big Tech is ready to swallow the Fourth Amendment whole. We've got a lot to cover, so let's get after it. Happy Friday, Chaos Monkeys. I'm Liz Dye, and with me as always is Andrew Torres. Andrew, how are you? Hey, Liz. I am great. I don't love the three days of rain, but I do love it raining away, this piled snow outside. It's been such a mess. You know, I'm from the mid-Atlantic. There should not be giant three-foot piles of snow, filthy snow, snow with dog pee on it, just clogging up every corner. I demand a recount. I agree. Okay, well, happy day before the tariff decision, maybe, possibly. I mean, to all who celebrate. Yeah, right. I mean, look, I will celebrate depending on how it comes down. Although I think most observers, including us who listen to the oral argument, expect the Supreme Court to rule that Trump cannot just steal Congress's tariff power. Trump is pissed that they haven't ruled yet. And, you know, like, actually, girl, same. Anyway, tomorrow is a Supreme Court decision day and people have been saying for a month that the tariff ruling is imminent. So I guess we'll see. Yeah, it's always dangerous to try and read the tea leaves. I remain optimistic that the Supreme Court is holding it so that Sam Alito can write a 500-page screaming tantrum of a dissent. I don't think they would hold it this long for Sotomayor or Kagan, much less Justice Jackson, obviously. Although, now that I say this, I suppose if it's Chief Justice Roberts who's writing the dissent that they would hold it for as long as he wanted. Right. If he were if he were in the minority with the. Yeah, I don't think about that. Yeah. OK. Today we are going to talk about a class action out of California, which aims to block the Department of Homeland Security from enforcing its mandatory detention policy and setting up a network of concentration camps to intern immigrants. Then we've got two stories about surveillance technology. One's about cameras collecting images of us every time we leave the house. And the other is about dynamic pricing at the grocery store. And for subscribers, we're going to catch up with Trump's dumbass lawyers. who are still trying to get Hillary Clinton at the 11th Circuit. But first, target alerts. Let's start off easy with some low stakes sunshine state corruption. The Tampa Bay Times reports that Florida Attorney General James Utmeier has a lucrative new side hustle. He's been given a $100,000 adjunct professor gig at the University of Florida Law School. This is low stake. I mean, Utmeier is teaching, what, 20, 30 classes, right? Because look, adjuncts get paid horribly. Like they get a few thousand dollars per semester max. Lawyers who do that do it out of devotion to the profession. Wait for it. Utmeier, Professor Utmeier, is teaching a two credit seminar on constitutional law. It has, I think, 15 students, something like that. That would be $50,000 for this semester. The article says he gets paid eight times the cost of the average adjunct. Oh, Florida. But, Liz, not to worry because the Supreme Court has just announced it's going out of its way to adhere to the highest standards of ethics. Oh, they're going to adopt mandatory recusal and conflict of interest rules? Not those standards. What they're going to do is require litigants to add stock symbols to their briefs to identify potential conflicts of interest. Right. And then they can like get AI to like kick it out. I mean, look, this is ridiculous. I don't understand why the people making our laws need to be day trading. What the hell? The fact that these assholes feel the need, no, no, the entitlement to trade individual stocks while sitting on the Supreme Court is, it's of a piece with every other corrupt thing about this worthless institution. And I guess we should be clear parsing the individual justices here. This is Chief Justice Roberts and Justice Alita, right? I think the others mostly don't own individual stocks, right? Appropriately. And as we know, Clarence Thomas likes his kitbacks in the form of RVs and fancy vacations and $1,000 bottles of wine. Uh-huh. Well, who doesn't? Yeah. Moving on to Pennsylvania, we have an update on Judge Cynthia Rufi's order Monday to restore the exhibit on enslaved people who lived at President's House in Philadelphia under George Washington. That museum is run jointly by the National Park Service and the city of Philadelphia. And the Trump administration unilaterally removed the exhibit and basically every mention of slavery in January. On Wednesday, Judge Rufi noted that the exhibit had not been put back up as per her order. And she gave the administration until Friday to fix that. They filed an emergency motion for stay, arguing that the government is going to be irreparably harmed if it has to say true words about slavery. while this case is being appealed. Of course they appeal. And good grief, these people are terrible through and through. But I am relieved to say that they did reinstall the exhibit this morning after Judge Rafi cleared her throat at them. I guess they knew they were never going to get a stay from either her or the Third Circuit. What's your emergency? You know, as you said, saying true things, pending appeal. So, you know, might as well bite the bullet. But good story. I'm happy to see that going back up. We'll take good news and we can get it. Yes. OK. Our blog post today was about the ongoing disaster of all of these thousands of habeas cases, which are swamping courts in every state, since the Department of Homeland Security decided that it could detain immigrants indefinitely without allowing them the opportunity to get released in a bond hearing. Yeah. And not just that it could, but that, in fact, detention is mandatory and that virtually every immigrant anywhere in the country is now ineligible for bond hearings to determine if they can be safely released into the community. So our post was about the District of New Jersey, where Judge Michael Farby Ars ordered the U.S. Attorney's Office to compile a list of all of the judicial orders it had violated in the past month. And since Lena Haber has wandered off to do something else, she's not in charge of that office anymore. The U.S. Attorney's Office actually did what it was told without a tremendous amount of inappropriate commentary and sneering. Yes, but I think the answer to how many court orders it had violated was 56 out of 542, which is a lot. Judge Farby-Ars was, I guess, sympathetic, at least up to a point. He appreciates that the Justice Department cannot make ICE comply with orders like a normal client. Right. We talked a lot about the Department of Justice being caught in the middle between on the one side, they've got these courts and judges. And on the other side, they've got the executive branch agencies. And look, the line attorneys themselves are in this terrible position because they have no client control. They can't they can't make DHS do anything. And they're the ones closest to hand when a court wants to apply pressure to ensure that its orders get followed. Which is what happened last night in Minnesota. It was a case involving a Mexican national named Rigoberto Soto Jimenez, who has lived in Minnesota since 2018. He got picked up by ICE in January under the erroneous interpretation of the mandatory detention policy, and he filed a habeas petition on February 2nd. The case was assigned to Judge Laura Provenzino. She ordered the government to answer by February 5th. It did not, so the petition for habeas was granted, and the court ordered the government to release Soto Jimenez by the 13th in Minnesota. And I emphasize that because we've talked at length about how Homeland Security is seizing people and then pushing them out the door in Texas or releasing them back in Minnesota, but without their winter coats or without their identity documents. And that's that appears to be what happened here. The government dumped this guy in El Paso, right? The habeas release order came down and then he said, fine. And they pushed him out the door of the detention facility in Texas without his identity documents. and no means to get him back to Minnesota. He did eventually make it home. But at a hearing on Wednesday, Judge Provenzino said she's going to fine the assistant U.S. attorney assigned to this case $500 a day until DHS got Soto Jimenez's documents back in his hand. Yeah, good for Judge Provenzino. I mean, that lawyer was one of the JAG attorneys who are employed by the Defense Department who have been surged into federal courts to make up for the fact that the offices at the Department of Justice have been hollowed out by resignations and firings, you know, as they are dealing with this onslaught of habeas petitions. So this is somebody who was not qualified to be in that role in the first place. And they have to rely on anybody they can find because there increasingly are fewer and fewer people to find at the Department of Justice. Yeah, we've talked a bunch about Julie Lee, the lawyer who had that crash out in court in Minnesota a couple of weeks ago. She was an immigration lawyer. She worked for DHS and then she was kind of seconded to the U.S. Attorney's Office and she didn't know how to do any of the things. She didn't even have a login for the computer or an email. And it's causing all of these disasters. But like we said, these these are lawyers who are standing up in court and representing the government. So they, you know, they have ethical duties as lawyers to not mislead the court. And as we said, they're the ones who are closest at hand when judges need to apply leverage. So that's what happened here. My understanding is that Soto Jimenez did get back his documents today. You know, there was a lot of harrumphing from the Justice Department about how this was abusive by the judge and whatever. But I don't know what they want judges to do. I think this isn't abusive. I think this is late. Yeah. That this is pressure that should have been applied earlier and should be applied regularly. I mean, look, it's different for this guy. He's his JAG attorney. He can't quit because that would be that would be disobeying an order. Right. He's he's got his own specific issues. Right. He can't quit in the way that a civilian can quit. But look, you have an ethical duty as a lawyer. Don't lie to the court. And, you know, you pay your money, you take your chances. And finally, for our last docket alert, the former Duke of York, Andrew Mountbatten-Windsor, was arrested yesterday and questioned about possible misconduct when he was in office over revelations in the Jeffrey Epstein files. Of course, former Prince Andrew's association with Epstein has been known for years. That's how he got unprincified after this disastrous interview in 2019 when he denied an allegation by Virginia Jufra, one of Epstein's victims, that he, Prince Andrew, had assaulted her. She described him as gross and sweaty. And he said it couldn't possibly have been him because he was unable to sweat in the 90s due to an adrenaline overdose from when he was in service in the Falkland Islands. Yeah, that went over. So the newest revelations suggest that he revealed state business to Epstein so that Epstein could monetize it. Sweaty or not, this dude is gross in all the ways. But I must say, I am impressed with his brother, King Charles, putting out a statement saying the law must take its course. And apropos of nothing, on the same day that South Korea sent its former president to jail for life for trying to mount a coup. Oh, Lord, I have seen what you have done for others. Do it for me, please. Yeah. Before we celebrate, I mean, Donald Trump will probably give Prince Andrew asylum. Okay. Before we go to the hat break, I do want to slip in a moment of levity from the deposition of Les Wexner. He's one of the billionaires who facilitated Epstein's crime. But I think, under questioning by Congress, that his lawyer didn't love Wexner's answer. It was just regularly done. answer the question okay i mean how do you feel about that okay we all think we all appreciate that wexner is a inveterate piece of shit fine stipulated what is a practitioner you know you make an assessment as as a practitioner every time you have a client who has to go into a deposition or testify or be cross-examined or just write a statement you ask yourself what's this guy gonna do that that's gonna hurt his own cause and like you know sometimes you need a signal like uh if i clear my throat really loudly after objecting that means stop sometimes you need a hey make sure that if you're hungry you do not this actually literally happened to me where i had a witness say oh we could just continue the deposition through lunch and like the last two hours from like three to four o'clock were you know like he was angry at just answering whatever to get out of there so i uh no sympathy for wexner probably not even any sympathy for the lawyer who represents Wexner, but like, keep your answers to five words or less or I will kick you in the shins again. Something like that. Okay, we're going to talk about the Department of Homeland Security's mandatory detention policy and a class action against it right after this brief ad break, unless you are a subscriber at patreon.com slash lawandchaospod or lawandchaospod.com, in which case you will not be having an ad break. Not now. Not ever. And we're back. Let's talk about the ongoing dispute over mandatory detention of refugees and asylum seekers. This is a deliberate decision by the Department of Homeland Security to violate the law over and over, no matter how many courts tell them not to. and it's causing the judiciary to basically buckle under the weight of these thousands of habeas cases that have to be adjudicated immediately before ICE kidnaps these petitioners to the Fifth Circuit or just goes ahead and deports them. Yeah, this is a really important story. We've talked about it a bunch recently, particularly in episode 200 The legal dispute is over what are called the mandatory detention provisions of 8 U Section 1225 subsection B2A That provision says in the case of an applicant for admission the alien shall be detained for a proceeding under Section 1229A of this title. And that section, 1225, specifically applies to people who show up at the border seeking asylum and turn themselves in. So that proceeding under 1229A is what's known as a credible fear hearing, which the immigrant is supposed to get within 24 hours or as soon as possible, but in no event longer than a week. Okay, that's the legal background. Last July, Homeland Security put out a secret internal memo that leaked, reclassifying basically every immigrant without a green card anywhere in the country as an applicant for admission under 1225. The implication is that they can pick somebody who's been on the non-detained docket for years. Now they must be detained and are not entitled to a bond hearing. So DHS can lock them up in concentration camps forever, or really what they want is until they give up and agree to be deported, right? Which that's the whole point of the exercise. Right. And hundreds of courts have now told them that this is wrong as a matter of law. We do not have indefinite detention without process in this country. It's offensive to the Constitution and it's contrary to the law. So people going through the immigration process are entitled to a bond hearing where a judge makes a determination that the person is not dangerous and releases them. Right. It says, come and check in every whatever six months, whatever it is. The very next section in the code, section 1226, says that the attorney general may release the alien on bond or conditional parole. Now, every court but the Fifth Circuit, which is the Fifth Circuit, has looked at that and said, no, DOJ, you can't just pretend 1226 out of existence by pretending that the statute governing asylum applicants at the border applies to millions of people who have been paroled by immigration courts into the interior, sometimes decades ago, and even given permission to work. But the Department of Homeland Security just keeps on doing it, which has resulted in thousands of habeas petitions by all these immigrants who were picked up and interned in DHS's gulags under this newly discovered mandatory detention policy. And I think it's important to say that Homeland Security could not have done this without a big assist from the Supreme Court in Trump versus Casa. That was the birthright citizenship case. Instead of issuing an actual ruling, which would have been adverse to the Trump administration because birthright citizenship is guaranteed by the 14th Amendment, and that's been clear for 150 years, the conservative justices decided to use that case as a vehicle to blow up nationwide injunctions instead. So if a judge in, say, the Middle District of Pennsylvania says, no, Donald Trump, you may not have ICE detain people indefinitely. That is unconstitutional. That ruling can't act as a bar nationwide. It can only ban that unconstitutional thing in the Middle District of Pennsylvania, and maybe not even there. The precise Supreme Court ruling in CASA is that courts can only grant complete relief to the parties in front of them. And so the practical implication is that the Trump administration has treated this as an opportunity to have a get out of precedent free card. So no matter how many courts grant habeas petitions and say, no, you are reading 1225 incorrectly, the Trump administration just keeps doing it because they don't care about precedent established by a prior district court opinion. Yeah, it's even more pernicious than that because district court rulings aren't binding basically on anyone, particularly after Casa. But a circuit court ruling is binding precedent for the entire circuit. And so the Justice Department is really taking care not to appeal it in places where it thinks it's going to lose. That is, it's only appealing in places where it thinks it might get blessing for its preposterous interpretation of 1225 and have an appeals court greenlight this mandatory detention. So the Fifth Circuit actually did bless this a couple of weeks ago. And I believe today it was argued before the Eighth Circuit. And the early reporting is that the Eighth Circuit seemed sort of receptive to this or to a similar interpretation, basically, that the that the attorney general may, you know, release people on bond, but doesn't isn't obligated to release people on bond. I think that the I think that's the way they're going. But that's that's all tea leaves at this point. The point is that the Justice Department is not appealing the hundreds of habeas grants in places like Los Angeles or New York, where courts have said, give this person a bond hearing or release him. They're just giving the bond hearing or mostly just releasing because if they appeal there in the Ninth Circuit or the Second Circuit, they're going to get rulings that say no. And those rulings are going to be precedential in huge swaths of this country. With blue states. With blue states, right, in places where they would like to keep interning people. And so they're trying very hard to avoid getting a circuit court precedent since they've decided district court precedents don't matter. So they've set it up so that in the Fifth Circuit, they can grab up anybody. But everywhere else, immigrants are having to sue individually and file their own individual habeas claims to get themselves out to get to get a bond. And that, as we said, is a direct result of Trump v. Casa. Yeah, two things. Number one, on the last episode, we talked about how even some trial court judges in Texas are fighting back against that. They're saying, okay, that's the administration's statutory interpretation of 1225, but individual immigrants still have their constitutional rights. And second, everywhere else in the absence of nationwide injunctions, what attorneys are doing and what district courts have been receptive to are relying on class actions to get relief for more than just the person or handful of people that are in front of the court. And even though class actions are way worse vehicle, right? They have higher administrative hurdles. They require all the injured parties to be injured in almost exactly the same way. They're slower. They require separate certification. It's inferior, but it is better than doing nothing. And in the Central District of California, there is one such class action seeking to enjoin mandatory detention under 1225. That case is captioned Maldonado Bautista v. Noam. It is on the docket of Judge Sunshine Sykes. In December, Judge Sykes certified a class of bond-eligible immigrants defined as all non-citizens in the United States without lawful status who, one, have entered or will enter the United States without inspection, two, were not or will not be apprehended upon arrival, and three, are not or will not be subject to the mandatory detention at the time the Department of Homeland Security. makes an initial custody determination. So, in English, Judge Sykes's class is everyone in the country who didn't just present themselves at the border seeking asylum, which, by the way, is the appropriate interpretation of 1225 versus 1226. Judge Sykes ruled that the plaintiffs in front of her were not subject to mandatory detention under 1225 B-2 and are therefore entitled to a bond hearing. She also barred enforcement of that July internal ICE memo that we talked about that said immigrants without lawful status were categorically ineligible for a bond hearing. The government actually did appeal that ruling to the Ninth Circuit. Because it's a nationwide injunction. Effectively. Yeah, you can have a nationwide class action. Our listeners may have been opted into one on, you know, antitrust grounds. Inferior mechanism, but can at least sweep up the entire population. But I have to say, I don't think the government appealed that ruling very hard. They did not ask the Ninth Circuit for a stay pending appeal because Department of Homeland Security figured out one weird trick to keep violating the law, which is why courts across the country are still drowning in habeas petitions from immigrants who have been denied a bond here. Yeah. And that one weird trick is found in an immigration court case called Matter of Yajore Hurtado. And please forgive me if I butcher these names. Don't go looking for this case on PACER, you will not find it. It's a holding by the Board of Immigration Appeals. Remember, immigration judges are not part of the Article III federal judiciary. They're administrative adjudicators, and they're part of the executive branch, specifically the Executive Office for Immigration Review, which is inside the Department of Justice. And that means that immigration judges are DOJ employees, not life-tenured federal judges. They conduct hearings that look and feel like court proceedings, but they are part of the executive enforcement apparatus, not the independent federal judiciary. They do not have Article III protections like lifetime appointments or salary insulation, and they are subject to supervision by the attorney general. And indeed, Pam Bondi has fired hundreds of immigration judges she thought were inappropriately deferential to the rights of immigrants appearing before them. Immigration judges' decisions are appealable to the Board of Immigration Appeals, which is also an administrative body within the Department of Justice under the command of the attorney general. So TLDR, the immigration court system is part of the executive branch, not the judiciary. Yeah, so much that I want to talk about here. But if I can just put the rabbit in the hat, the Board of Immigration Appeals is part of the Justice Department. In contrast to most of the horrible stuff going on in the immigration context that comes out of Customs and Border Patrol, CBP or ICE, those agencies are under Department of Homeland Security. But you cannot blame DHS Secretary Kristi Noem for the BIA. That's Pam Bondi's shop. Yeah. So, OK, put a pin in that. In September, the BIA ruled in matter of Ujuri Hurtado that immigrant detainees were ineligible for a bond hearing under this Fakakta interpretation of 1225. And then after Judge Sykes granted class certification and issued this final judgment in January in the Maldonado-Bautista case, Teresa Riley, who is the chief immigration judge at the Department of Justice, issued this guidance to all immigration judges. So this is what's coming out of DOJ. Judge Riley said Maldonado Bautista is not a nationwide injunction and does not purport to vacate, stay or enjoin your jury Hurtado. That's the that's the immigration court decision that said, yeah, this is a great interpretation of 1225 lock people up forever. Continuing, therefore, your jury Hurtado remains binding precedent on agency adjudicators. That's immigration law courts. For clarification, declaratory judgments differ from injunctions in that the former clarifies parties legal rights and relationships without ordering specific action, while the latter is a court order compelling a party to do or stop doing a specific act. A declaratory judgment is not an equitable remedy and does not by itself have the effect of compelling specific action by a party. Thank you for your attention to this matter. Okay, so that's a lot. And do I see your temples are throbbing a little bit? Yeah, because that advice is insane. None of that is law. How can a lawyer possibly put that advice, you hear the air quotes, into writing? I mean, according to her bio on justice.gov, Teresa Riley is a real lawyer. She clerked for a real federal judge and served as a real federal prosecutor and then a real state prosecutor. So she must, she has to know that what she is saying is not correct. She's telling immigration judges, who, by the way, are also lawyers, to violate a federal judge's order. Just, just, what? Right, right. So, of course, this directive leaked. I assume that the Maldonado-Bautista plaintiffs cited it in their motion to enforce the judgment. Again, we can't see that because immigration cases are, for the most part, sealed on the public docket, which is a bummer because Judge Sykes told the government to explain in their own words how an immigration judge's order trumps a U.S. district court order, and I would love to see how the DOJ lawyers briefed in that one. I would like to see who signed it. Yeah, that too. Luckily for us, Judge Sykes summarized the argument that they made and whoo. Basically, the Department of Justice is arguing that the order only enjoined the DHS memo and not the Board of Immigrant Appeals ruling. And that this is a direct quote. The court has not vacated matter of Yajure Hurtado. Hurtado. And then they say, even if matter of usury Hurtado were vacated, immigration courts would follow circuit precedent and the statutory text under their own interpretive authority. Their own interpretive authority, like it's a modern dance class, not concentration camps. But in all seriousness, note that they said we follow circuit precedent, which is, I mean, They're admitting they ignore district court orders. Yeah. And to be clear, what we're saying is that the trial courts are U.S. district courts for the district of X, right? Middle District of Pennsylvania, District of Maryland, whatever. The circuit courts are the U.S. courts of appeal for the circuits that sit over all of those district courts. And they're saying we only follow what those circuit courts are saying. And at the same time, that's a mighty convenient position to take when you as the administration are doing your damnedest to make sure there never is any circuit precedent anywhere but the Fifth Circuit. Yeah. Okay. Their second argument is that the practical implication of a declaratory judgment is, quote, at most limited to its preclusive effect in habeas litigation filed by bond-eligible class members. So basically what they're saying is that habeas petitioners can cite to the ruling, but the declaratory judgment doesn't mean that the government has to change its behavior. I mean, it's a bold strategy, Cotton. And it did not pay off. I mean, this order is a bench slap of the highest order. We could spend 20 minutes just reading the whole thing. I argued for that. But before we enjoy some righteous rhetoric, I do want to point out two important things. First, the slippage here is that the government is pretending that the statutory analysis involves the Declaratory Judgment Act only, right? That is that they're acting as though the plaintiff submitted an academic question of law, like as a certified question to the court and asked for a ruling. No, this is also an Administrative Procedure Act claim. And the court issued a declaratory judgment interpreting the law, which is what courts are for, and finding that the government was violating the law. So Judge Sykes issued relief under the Administrative Procedure Act. This was not just a declaratory judgment. She can order the government to comply. Second pretending that the executive branch gets to do an interpretive dance as you called it to decide the statute It is utter contempt for the separation of powers It is emphatically the province and duty of the judicial department to say what the law is Everybody who went to law school can summon that quote off the top of their head because that's Marbury versus Madison. The most important Supreme Court case in our nation's history. The executive branch does not get to ignore court orders because they would like to interpret the statute in a different way. Yeah, we could have a whole digression into Chevron deference here since the conservatives made sure that agencies interpretation of statute meant nothing. So that's on you guys. But we do not have time. Instead, we're going to quote Judge Sykes. Here's what she said. The court, possibly out of naivete, entrusted respondents to abide by the law as declared in the final judgment. Instead, respondents chose to privilege an executive interpretation of law over the judiciaries. Yajure Hurtado is functionally equivalent to the DHS interim policy, though respondents seek to obfuscate the identity of these executive actions by referencing internal agency regulations to which respondents selectively adhere. The court's initial decision to deny petitioners' request to vacate your jury hurtado under the APA, that is the Administrative Procedure Act, was an act of judicial restraint, a formality. However, based on the representations respondents have made to the court, it is evident that further relief is both necessary and proper. The court vacates your jury hurtado under the APA. There you go. Be careful what you wish for. Yeah. But let's pull that pin because we have talked a lot about the horrible position that the Justice Department lawyers are in, the line attorneys, having to deal with these thousands of habeas cases, which they, you know, they're like the dog with the tennis ball machine, you know, throwing all these balls at them. There's no possible way they could hit them all. Remember that lawyer Julie Lee in Minnesota who lost her mind in court and said she'd like to be held in contempt because then she could get a day off instead of fighting every hour with ICE to comply with court orders. We talked in our blog post yesterday about the U.S. Attorney's Office in New Jersey explaining to a court how hard it's working. So, you know, please don't sanction us because DHS refuses to follow court orders. And in the main, judges who have often been U.S. attorneys themselves are sympathetic to line attorneys who cannot get DHS to abide by orders. I mean, they're basically like, yeah, sucks for you that you can't control your client, the client here being Department of Homeland Security. But I think it's important to note from this opinion that Judge Sykes isn't isn't seeing any daylight between DOJ and DHS. She just refers to respondents and says that's you, all of you, the entire executive branch, that they're one entity. And even if you could separate DHS, you know, ICE from the Department of Justice, you can't do it here because these immigration courts are a part of the Justice Department. And the Justice Department is, you know, you can't it's it's not one degree of separation away. The Justice Department is the same entity which the U.S. attorneys are. I mean, these immigration courts are not part of the U.S. attorney's office. But if the Justice Department itself is carrying out a facially illegal policy and distorting the law and violating the separation of powers, you can't say, well, that's that's the client. No, no, no, friend. That's the lawyer. That's the entire agency. And that's why Judge Sykes refers to respondents throughout, not DHS, not ICE, not CBP, just respondents. And we, you and I, I think, are still sympathetic to the awful position these line attorneys are in. Like that JAG lawyer that got sanctioned in Minnesota, right, he was ordered to do it and he got immediately assigned 100 habeas cases in a month. This is a guy who I'm sure has no experience doing that before. I feel sorry for him on a personal level. But this is a good reminder that the Justice Department bears a tremendous amount of responsibility for this mandatory detention policy, too. They dummied up this immigration ruling, kind of recreating the vacated DHS memo. So that's not on the client. That's on DOJ. Yeah. And DOJ has chosen a strategy that requires it to be overworked at this point. So, you know, yeah, I have some human compassion. But like if the Supreme Court is going to take away the tools that we would otherwise have to just get declaratory relief, declaring a policy unconstitutional and have it apply. Right. Because something can't be unconstitutional for one group of plaintiffs, but perfectly fine for another. Well, we wouldn't be here. And we are. Yeah. And I mean, just kind of play out what happens next. You've now got the Fifth Circuit saying this mandatory detention policy is fine. You've got this district court ruling in the Ninth Circuit in the Central District of California, theoretically enjoining the policy nationwide. And this again, this is the Supreme Court's fault for making everything so bifurcated and balkanized and forcing there to be all of these individual lawsuits and saying there can be no relief that just says, stop breaking the law, Donald Trump and your minions. Right. That every single person affected has to individually sue and no decision is precedential. That's this chaos that the Supreme Court has created. And I don't really know what comes next, but it's very clear to me that the Justice Department is not going to abide by it, right? That there will be this ruling in California. I think that they might abide by this ruling in the Central District of California, which is good because that's where Los Angeles is. I don't think that they're going to abide by it anywhere else. It's clear that they're not going to abide by it anywhere else. And so we've now got this mess, which is 100% on the Supreme Court. Agreed. Okay, if you are a subscriber at any level at lawandchaospod.com or patreon.com slash lawandchaospod, we have a fun story in the subscriber bonus. It begins with a story that we have been laughing about since 2022, back in the good old days when Donald Trump was just a vexatious litigate represented by dingbat lawyers filing sanctionably bad lawsuits and not, you know, an existential threat to humanity as we know it. This story features, I think, essentially our entire rogues gallery of idiot lawyers that have represented Donald Trump. And we're going to laugh a lot. For everybody else, we will see you after this brief ad break with a story about surveillance. And we're back. Okay, Liz, let's talk about big data law surveillance, and both in the private sector and by the government. Okay, so Marimar Martinez is a preschool teacher in Chicago, and she's a U.S. citizen. On October 4th, she was literally driving to church to drop off donated clothes like that shit you cannot make up. That's true. She saw a vehicle carrying CBP agents through her neighborhood and she started following it, honking her horn and shouting La Migra out the window. Right. The Border Patrol agents did not like that. Another car also joined this thing. At some point, she was next to them and they rammed their car into her, jumped out of the car and shot her five times after shouting, do something bitch. They then rousted her from her hospital bed and arrested her for forcibly obstructing an official in the exercise of his duties. We talked about this case in episode 184 when it got dropped because it was clear that everything that the agents had said about getting boxed in by a convoy of Antifa protesters was bullshit. They said that Marimar Martinez had rammed their car. They clearly had rammed her car. The body cam footage was real clear about it. So that case was dropped. But the Department of Homeland Security said all kinds of horrible shit about her, that she was domestic terrorist, that she'd rammed law enforcement. And they continued to say it long after the case had gone away. And so Martinez moved to modify the protective order in the case and unseal the evidence. To be clear, in criminal cases, the government has to produce a lot of evidence to the defendant, all of this exculpatory and inculpatory evidence, Brady and Giglio and all the other decisions. But that evidence is usually sealed, right? It's subject to a protective order because you don't want the defendant to be able to use it in other contexts. But here, Marimar Martinez said, my government continues to defame me and call me a terrorist so I should be able to disseminate the evidence proving that I am not, including all of these, including the body camera footage, including various statements and these incredibly incriminating texts from the agent who shot her and who joked about it and got, you know, all these attaboys from Greg Bovino. Yeah, we're going to buy you beers after. Right, And said things like I shot her five times through the windshield and there was deflected off the windshield. And like, that's not what happened, dude. You shot her through the side of I mean, yes, a couple of the shots went through the windshield because he said that she was trying to run him over. But a lot of those shots went through the passenger side window, which is not someplace that you can shoot through if you're being run over by the car. So, I mean, that's that's why the case got dismissed. And so Martinez moved to modify the protective order to get all of this, to spring all of this data and let her publish it so that she could clear her own name since the government refused to retract its statements. And among that information that she got apparently in discovery from the government was information showing that the government had 30 days of images of her car driving around the city of Chicago before that encounter, before she was shot. And the FBI apparently got that surveillance data from a third party company called Flock that provides surveillance cameras and license plate readers to law enforcement. Right. Actually, if you guys watched the Super Bowl and you saw that Amazon Ring commercial where they found the lost dog named Milo and then five minutes after the Super Bowl, people were like, you know, you could use that for like stalkers could use that surveillance that that networking all of these Ring cameras wasn't such a great thing. So Amazon was about to enter into a partnership with Flock, which does, as you said, it's not even that they sell the cameras to law enforcement, although they do. It's that they install license plate readers and cameras in public places. And so that Amazon was saying, look, this will be able to network all of these cameras together and generate a complete picture of people as they move through the world. And nobody wants that. That's creepy and terrible. Did they not see The Dark Knight Rises? Right, right. I mean, this is like all of that. They're creating minority report and being like, isn't this great? And people are like, no, of course it's not great. Yeah. So Martinez has all of this data. And she says that she should be able to release the images of herself. And the government says, oh, no, if you release it, then criminals will know where the cameras are and they'll be able to hide their criming. And Martinez said, that's fine. I don't have to release anything. I will drop my motion to modify this protective order and unseal this evidence if you will just publicly acknowledge that I'm not a domestic terrorist. And the government said no. So, OK, this is a lot of buildup to a story that's about the Fourth Amendment, because it really forces us to think about this network of cameras that are all around us. And at what point does that become a search that would require a warrant? How comfortable are we with this in the Fourth Amendment context? Right. We have talked a lot about technology outpacing prior legal norms. And until about the last decade or so, the test for whether the government needs to get a warrant under the Fourth Amendment was largely driven by physical notions of trespass because that's how it would spy on you. So it doesn't violate your Fourth Amendment rights if government agents paw through the trash that you have taken out to the corner of the street. It does if they paw through your trash right on the cartilage of your home or in your kitchen or whatever, even though it's the same trash. It's the physical notion of trespass that governs when the Fourth Amendment kicks in. In the same way, it doesn't violate your Fourth Amendment rights for undercover cops to take your photo if you're driving around in your car on the street. It does if they peek through your windows and push aside the blinds. So the general heuristic for the past 60 or 70 years has been basically if you're out in public, you have no expectation of privacy. No Fourth Amendment protections apply. If you're in your house, you do have an expectation of privacy, which might suggest under that heuristic that Flock is free to surveil you when you're driving down the street and then turn that data over to law enforcement, which, you know, seems kind of Orwellian. It does. OK, so the first case to test this inside outside heuristic for, you know, reasonable expectation of privacy is USV Jones in 2012, in which federal agents suspected Antoine Jones, a nightclub owner, of being a mastermind of a drug trafficking ring. And one of the things kingpins do is make sure they're never in the same room as the product. So it's a little bit hard to catch them. So the government tried to compile as much data on Jones as they could and specifically on his whereabouts because they wanted to get him in the same room as the dope. One of the ways that they did that was by hiding a GPS tracker on his car and collecting, you know, all of his location data from this tracking device. And then it used that data to secure an indictment for drug trafficking. And at trial, the trial court judge used the traditional private yes, public no formulation and suppressed the GPS data that the government gathered from when Jones's car was parked at home in his driveway saying he had a right to he had an expectation of privacy there, but held that he had no expectation of privacy when he was out on the road. So most of that GPS data came in and he was convicted. That conviction got reversed on appeal. And the Supreme Court applied a slightly more nuanced version, but again, still the old outside-inside paradigm. Yes, Jones was out in public. When the government sticks something on your personal property, when it hides a tracker in your car, that's a physical intrusion. Physical intrusion is like a trespass. Trespass triggers the Fourth Amendment. Therefore, it needs a warrant for that. So Jones's conviction got thrown out. But Supreme Court Justice Sonia Sotomayor realized that like the day was coming soon when the government could track your movement without physically installing a device on your car, without this trespassery physical intrusion. So in a concurrence she wrote that the same technological advances that have made possible non trespassery surveillance techniques will also affect the legal test by shaping the evolution of societal privacy expectations I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I'm pretty prescient, Justice Sotomayor, in 2012. Now, what she's saying is that, okay, under the historical test that we've used, you didn't have a legally protected expectation of privacy when you're driving around on the street in the sense that one isolated person might see you, take your photo. That's a risk you take going out in public. But even when you take that risk, you probably still have some aggregate expectation of privacy that you're not being secretly tailed the entire time or monitored by, you know, a movie style level of satellite or spy cameras. So that's the mosaic theory of the Fourth Amendment. That is that while no one single public surveillance data point can be a physical intrusion, a series of data points taken together to capture all of your movements might violate the Fourth Amendment. That is one little blue tile is in a picture, but thousands of them, thousands of pixels can make up a mosaic. Right. Sotomayor's mosaic theory was adopted by the Supreme Court seven years later in a case called Carpenter v. U.S. That involved the government getting cell phone records from T-Mobile under the Stored Communications Act of 1994, which said that the government could compel a private company, telecom company, to turn over phone records if it offers, quote, specific and articulable facts showing that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. And that is lower than the standard for a warrant. And the Supreme Court said, no, that will not do. It's closed, but you've got to go get a search warrant. And what they said was, given the unique nature of cell phone location records, the fact that the information is held by a third party does not overcome the user's claims to Fourth Amendment protection. Whether the government employs its own surveillance technology, and then there's a cite back to the Jones case, or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements. OK, so then let's come back to Marimar Martinez. What she's going to show us, I mean, I don't think she's going to release her own images of her own car that would endanger her. But we're talking here about 30 days of retrospective data collected on her by a commercial provider and then given to the police, perhaps with a warrant, perhaps without. We don't know. But the important thing here is it was all collected before she was a suspect in any crime. And so it just points up the fact that we are moving in this direction where, you know, thanks to the cell phones in our pockets, commercial providers are collecting this mosaic, exactly what Justice Sotomayor was talking about, and selling it, not even to the government, selling it to anybody who wants it. And when it sells it or gives it to the government, does that violate the Fourth Amendment? Is that so much data that it should only be accessible with a warrant? And we, I mean, it's an evolving area. Yeah. And it's something we're going to keep an eye on. Okay, we're going to take one more quick ad break unless you're a subscriber, in which case, not for you. And we're back. Before the break, we talked about the criminal and Fourth Amendment component of big data and surveillance. Let's talk about the second aspect. And that is something near and dear to my heart, which is grocery shopping. Listen. Man loves grocery shopping. You have no idea. Have you ever used Instacart? Have I raising three kids and working seven jobs ever had groceries delivered to my house? Yes. Yes, I have, sir. Well, then you may have noticed that not only are prices expensive on Instacart, but they're weird. They fluctuate all the time. Do not get me started on the substitution policy. No, you cannot swap in boxed stock for better than bullion. You monster. Okay. Anyway, last year, Consumer Reports teamed up with some other policy groups to study how Instacart sets its prices. What they found was that Instacart apparently uses big data for dynamic pricing to extract the maximum profit from each customer. Shook. I'm shook. Right. But in practice, what that means is that people who bought the exact same goods from the exact same store at the exact same time were charged different prices. And not just, you know, tiny different, right? It varied by as much as 25%. Okay, so here's the methodology. More than 400 shoppers were synced up to order the exact same items at the exact same time from the exact same store, like you said, Safeway in Washington, D.C. And they found that virtually every item had a different price for each person. The average cart varied by 7% for each shopper. One particular example was a dozen Lucerne eggs. That's a brand of eggs in this part of the country. Instacart charged $399, $428, $459, $469, or $479, depending on how much they thought you would be willing to pay. And Instacart confirmed that it uses these enormous data algorithms to set prices, but it did not expound on how those prices are tabulated. Yeah, not a surprise. Okay, so that's the first part of the story. Combine the Instacart story with the trend towards grocery stores using electronic shelf labels. That is, instead of printing out physical stickers or signs that show the price, there are these little digital screens. They have some apparently at some Whole Foods, although not any that I've seen, and Kroger stores already. And Walmart has said that it is going to install electronic shelf labels at 2,300 stores by the end of this year, 2026. So, like, the tech geek in me is definitely a little interesting. No, it is bad. Look, if prices are displayed on an electronic screen, obviously the store can change it when you're walking by, depending on how much it thinks you have in your checking account. And so Senator Elizabeth Warren wrote Kroger a letter and said, hey, are you planning to use surge pricing? And Kroger wrote back and said, no, we definitely don't. Absolutely not. But, you know, stores already kind of surge price. I mean, you know, I know after the enormous snowstorm out here, I paid way more for ice melt than, you know, when I could find it. And just the other day, I bought a frozen turkey for 19 cents a pound, which is like 1 1 20th of what I had to pay back in November. I mean, I'm not sure that's surge pricing. I think that's like nobody wants to eat a goddamn turkey in March. Fair. But OK, surge pricing seems kind of fair. But OK, I think it's important to differentiate between two kinds of surge pricing. Like there's one where everybody is going to pay more for Uber at rush hour. And then there's one that says, I think you should pay more for Uber because you are rich or you are actually, to be fair, often it is you are poor and desperate. And so you don't have the luxury of waiting to make another choice. Yeah, I think that is exactly right. And I think that intuition was what led Democratic Senators Ben Lujan and Jeff Merkley to draft the Stop Price Gouging in Grocery Stores Act of 2026. We will link to that text of that in the show notes. To be clear, this bill is still in committee. It's a Democratic-sponsored bill. It doesn't have a number assigned to it. It may not make it out of the committee. Likely will not. Usually we don't talk about pending legislation. But, Liz, I think you and I thought that this was interesting in two ways. I mean, first were the kinds of consumer protection activities that Democrats are interested in. And second, sort of the larger question about how you go about effectuating that in a government where the enforcement mechanism, the executive branch, is fundamentally broken. And, you know, in the past, right, you knew Republicans would come in and would be less likely to enforce the EPA regulations that you put in or, you know, consumer protection laws or workplace safety. But the system wasn't so broken that they would bork the actual studies. Right. Like George W. Bush's EPA could be trusted to at least have an expert prepare the study properly. You know, you might have political appointees at the top monkey with it, but you would at least know that the underlying data would be correct. Here, I don't think we have that level of trust. Definitely not. Okay. So we're going to talk about how the bill gets around the Trump administration. But I think maybe we should go back and talk about what the bill would actually do, which is to define two major types of unfair trade practices by retail food stores. Those are price gouging and the aforementioned surveillance pricing. Okay. So the price gouging ban is an operator of a retail store may not sell or offer for sale an item at a grossly excessive price. Well, what's a grossly excessive price? That is going to be whatever the FTC, the Federal Trade Commission, says it is. And the law offers guidance. It says the FTC shall consider as part of the definition whether it's more than 20% higher than the average price over the last six months. Okay, so that could be problematic. The ban on surveillance pricing is a little bit more complicated. That is the next section 3A. It says that a food store may not adjust the price of any item based on the personal information of the consumer, including those collected using facial recognition technology or using an electronic shelf label to change the price of an item for a consumer based on the personal information of such a consumer. So it also bans electronic shelf labels and it requires a store to disclose if it uses facial recognition technology, which all of a sudden I'm a lot more nervous going into the grocery store than I was before we did the store. Yeah. So just as with price gouging, the store can also avoid liability for dynamic pricing if it demonstrates to the FTC that differential pricing is offered uniformly to all consumers who meet some kind of publicly disclosed discount or award criteria. So basically, if you look, if you have a shopper's card and it gets you whatever, 20% off of some item on a specific day, you will have your little shopper's transponder and it will give you that price. That's fine. That's available to everybody. That's a dynamic price that will be acceptable under the law. But if it's like you're poor and so we're going to charge you more because we know you can't go to the big store in the suburbs and you can't make it to Costco, then like, no. Yeah. And the law specifically lays out 14 different classes of data that, you know, things like immutable characteristics like race, weirdly eye color is listed as well. I mean, that has to be, you know, part of the underlying information that they're collecting. I have no idea how that becomes part of the profile. But, you know, your address, right, so they can profile you based on where you live, your Internet search history, all sorts of things. The law says you can't use that as the basis for dynamic pricing. So now I want to talk about the way in which the law attempts to navigate around a federal trade commission that is captive by the Trump administration, right? And they do that in two ways. The first is a non-preemption provision. And I'm kind of painting with a broad brush here. But in general, in the 1990s, Democrats wanted the federal government to set nationwide standards to preempt state law, right? so that environmental standards didn't get ignored in red states. And now I think an illustration of how much we've gone backwards, right? The concern is that blue states will pass legislation and the federal government will say, oh, we preempted that and the standard is nothing, right? So the first half of that says, defines what counts as preemption incredibly narrowly and specifically says if states offer more protection, then that doesn't count. States can do that. And the second thing is that it allows individuals and state attorney generals to bring lawsuits to enforce the law. So even if Pam Bondi decides she's not going to go forward or Andrew Ferguson at the FTC decides that they're not going to investigate, there are these private rights of action. And the way in which you incentivize a private right of action and the contingency fee lawyers who represent plaintiffs would set statutory damages of $3,000 per violation plus costs and attorney's fees if you win in court. And it also has this really interesting provision that says that states can't enforce pre-arbitration waivers or pre-dispute joint action waivers that would allow them to get around this act. In other words, say, oh, if you come into this store, you agree to let us, you disclaim any liability under the Stop Price Gouging Act. And let me explain kind of how that would kick in, because you might be thinking, like, I don't sign a contract when I go into Whole Foods. But actually, you probably do. Yes, you do. If you use Amazon Prime, if you have a store credit card, if you have the store discount card, that's why they make you sign up for those things. Or if you're a member of a subscription club like, you know, Sam's Club, you know, all of those are contractual agreements that they have these terms and they typically require you to waive your right to trial. Often, at minimum, at least your right to a jury trial, as well as the right to bring your lawsuit as a class action. And in general, those waivers are enforceable. So this legislation says you can't waive the provisions of this legislation in the future. Okay. Interesting stuff to think about. I could see a populist kind of push for that. Like you could get some rando like Josh Hawley, who thought if there was something in it for him, or Rand Paul supporting this kind of legislation, it's interesting. But I do think we're going to have to, look, we're not going to talk about Trump every day for the rest of our lives. We are going to have interesting legal issues when we get to the other side of this era. And hopefully we'll have the political clout to make some really important changes. And these are changes which I think are going to be important because technology is racing ahead while we're busy fighting to save democracy and civil rights. And it can't steal a march on us. All right. That is going to do it for us this week. Thank you so much for hanging out. We would love it if you would become a subscriber at patreon.com slash law and chaos pod or law and chaos pod.com. And we would also greatly appreciate if you would give us a five star review on your podcast platform of choice. We'll be back Monday with more written content and Tuesday with another podcast. Have a lovely weekend, you guys. Law and chaos podcast is production of raise up to media LLC is intended solely as entertainment does not constitute legal advice and does not form an attorney-client relationship. This show is researched and written by Liz Dye and produced by Bryce Blankenagle. Long Chaos Pod, copyright, Receptor Media, LLC, all rights reserved.