Ep 204 — Horsefeathers!

I mean, clearly this was an immigration dragnet using these criminal warrants as an excuse to get around the Fourth Amendment so that they could search and detain hundreds of mostly Latino people, none of whom were suspected of actual crimes. Yeah, I think it is worth starting with the fact that ICE does not have general detention and arrest authority. Welcome to Law and Chaos, where the Trump administration is teaming up with local law enforcement to hunt immigrants. And trial judges in Texas are finding workarounds for the Fifth Circuit's obscene rulings. And Jeanine Pirro is really, really bad at her job. 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, there's so much of everything all the time. I know. I know. I really feel like our brains are being wild. We really aren't set up psychologically to not only have the never-ending stream of bad news, but have it being fed to us all day long on social media. But you know, we have some really good news stories to cover today. We've got positive developments. We've got judges fighting back. It's not all doom and gloom. It's not all doom and gloom. And I really do think that people are going to need another Atari episode soon. Magic the Gathering. Oh, okay. All right. So we got another jam-packed news day, as you said. We'll talk about this fascinating case in Ohio where the ACLU is suing state and federal officials for conspiring to deny immigrants their civil rights. It's a really important case when we've seen so many local officials cooperating with ICE because local officials are vulnerable to Section 1983 suits in ways that federal officials are not. We're going to talk about that. A Trump appointee in D.C. is barring the government from interning former death row inmates in Supermax. That's a really good ruling. Like you said, we'll talk about the fallout from the Fifth Circuit's mandatory internment camp ruling last week. And Andrew, you listened to a hearing before Judge Ana Reyes today on temporary protected status for Haitian immigrants, which was also interesting for what it says about the court writ large. And for subscribers, we have more on Pam Bondi's one weird trick to get around Senate confirmation for U.S. attorneys. But first, talking alert. So beginning with a big mazel tov to Janine Pirro, the U.S. attorney for the District of Columbia, who once again continues to innovate the practice of law. We are speaking, of course about her effort to indict six Democratic members of Congress. Their crime was making a video in November reminding active duty members of the military that they have a right and indeed a duty to refuse to carry out illegal orders. Yeah, and these legislators are all former members of the military or the intelligence community. They are right morally. They are right legally. That's Senators Mark Kelly and Alyssa Slotkin, along with Representatives Jason Crow, Maggie Goodlander, Chris Deluzio and Chrissy Hullay. So Donald Trump screeched onto social that that was seditious behavior punishable by death. And then Jeanine Pirro tried to indict these legislators for something. It's not clear from the reporting exactly what. Yeah, well, whatever it is, she failed. And not just in the way that we've come to expect, like there is no prosecutor in history who gets no billed more than Jeanine Pirro. It is astonishing, particularly since Grand juries don't have to be unanimous. You have to get 12 votes out of a potential 23 grand jurors. And you only have to convince them that there is probable cause to believe that a crime has been committed. Right. That is a much lower threshold than beyond a reasonable doubt that you need to win a trial. It's a lower threshold than just more likely than not. It's like 30 percent or so. Right. And Jeanine Pirro's lawyers got zero votes. Yeah. Not a single grand juror voted to issue an indictment, according to NBC. I don't even know how that's possible. And how do we saw the names of the line prosecutors today? They were published by NBC. How do those guys not immediately shave their heads and move to an ashram? Grand juries, man. Who would have thought that they would be this bulwark against fascism? So I am not even joking. Right. Six years ago, I was doing a story on the incorporation doctrine and I read a bunch of law review articles that were rather persuasively at the time suggested that grand juries aren't even a substantive right. I mean, we've all heard the saying you can indict a ham sandwich. Well, no, I think you basically have to retire that one. It is yet another thing that Donald Trump has broken along with the presumption of regularity at the Department of Justice. You know, I'm not mad about either of those things. Grand juries should serve as a check on prosecutors, particularly when every other check and balance has failed us. And in related news, Judge Richard Leon in D.C. whacked Pete Hegseth across the nose with a rolled up newspaper and said, not on my watch. It should have rubbed his nose in it. Look, but I have to say that not on my watch is more or less a direct quote from Judge Leon's order. This is from Senator Mark Kelly's lawsuit to block Hegseth from reducing his rank and docking his retirement, you know, in addition to pursuing criminal charges. Right. Because of the video. Right. Right. So on the very first page of this 15 page order, Judge Leon says, Secretary Hegseth relies on the well-established doctrine that military service members enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces. OK, unfortunately for Secretary Hegseth, no court has ever extended those principles to retired service members, much less a retired service member serving in Congress and exercising oversight responsibility over the military. This court will not be the first to do so. And then it has one of 15 of his of Judge Leon's trademark exclamation points. He does use a lot of exclamation points. That's kind of his thing. But again, this is another old bull of the judiciary standing up to this tide of fascism. Yeah. When you say old bull, Judge Leon was put on the bench by George W. Bush. He is, I think, fair to say, rabidly conservative. Our buddy Kel McClanahan considers him the most partisan Republican judge that he's ever appeared in front of. And Judge Leon is plainly disgusted by this Republican administration's attack on the rule of law. Yeah, I love when he says this court has all it needs to conclude that defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees. After all, as Bob Dylan famously said, you don't need a weatherman to know which way the wind blows. To say the least, our retired veterans deserve more respect from their government and our Constitution demands they receive it. Exclamation point. my mom says that sometimes the dylan part not not the stuff about the military retirees although i am sure she would agree hi mom so judge leon also used the term horse feathers in this opinion as in horse feathers while congress has chosen to apply the uniform code of military justice to military retirees as well as active duty service members that choice has little bearing on the scope of the first amendment protection for retirees the first amendment is a limitation on the power of Congress, not the other way around. I cannot believe that these assholes of the Trump administration are making me Team Richard Leon. It's the strangest of bedfellows. Indeed. I do wonder if he's going to be added to the list of judges to impeach, which Pam Bondi and her howler monkeys are apparently compiling. Bloomberg and Reuters say that she's putting together a hit list for Congress. OK, we could do an entire show on this. And we may wind up. Yeah. I think it is illustrative, a really important point, and that is that none of this is actually about convicting anyone for actual crimes, right? Which, by the way, is the actual job of the Department of Justice. And so look at these stunts lately, right? This administration is not going to convict Don Lemon for criminal journalism. They're not going to convict anyone for voter fraud in Fulton County, Georgia. They're not going to convict members of Congress for making a video. And they're not going to impeach judges just because they're on Trump's enemies list. The Department of Justice is using, wielding the prosecutorial power to inflict pain on Trump's enemies, plain and simple. The civilians, of course, but also the other branches of government, right? The Department of Justice is deliberately painting a target on the back of legislators and judges. It is such a gross, abusive power. Yeah, we're going to talk about that a fair bit when we get to Judge Reyes' hearing today. We'll talk about it at the end of the show. But I agree that the Trump administration is basically in a war with judiciary, right? Everything but the Supreme Court and the Fifth Circuit. And that's one of the reasons we keep covering this dispute over the U.S. attorneys, because having failed to bully the Senate into getting rid of the blue slip rule and confirming his cronies as chief prosecutors in the blue states where where his enemies tend to live. Pam Bondi and Donald Trump are now trying to bully the judiciary into doing it for them. Yeah, we've talked a lot about Trump's hack attorneys, Lindsay Halligan and Alina Hava, trying to hang on as de facto U.S. attorneys in Virginia and New Jersey, respectively, despite the Senate's refusal to confirm them. Under the blue slip rule, district court and U.S. attorney nominees don't move forward without a sign off from the home state senators, which means Trump can't get his worst cronies confirmed as chief prosecutor in the states where his enemies tend to live. Pam Bondi has spent a year trying to get around this, despite every court to have considered the question, and I believe it's seven at our last count, telling her no, right? No court has ever endorsed any of the theories that she has put forth. Right. So there is another way besides Senate confirmation for these attorneys to get confirmed. Congress passed a law allowing district judges to fill U.S. attorney vacancies when there is no confirmed nominee. That law is 28 U.S.C. Section 546D. And this week, the judges in the Northern District of New York did just that. A month ago, Trump's crony, John Sarconi, was disqualified by yet another court. And yesterday, the judges appointed Donald Kinsella, a very experienced lawyer, to head up the U.S. Attorney's Office in Albany as interim U.S. attorney. Kinsella has 50 years, literally 50 years practicing law, much of it at the U.S. Attorney's Office in the Northern District of New York. unlike Sarconi, Trump's crony, who never worked as a prosecutor until Trump tapped him for this job so that he could use subpoena power in that office to harass New York Attorney General Letitia James. And to illustrate whether this administration values competence or loyalty, five hours later, the DOJ fired Kinsella, right? Deputy Attorney General Todd Blanche, one of Trump's many, many personal lawyers who are now running the Justice Department, tweeted out, judges don't pick U.S. attorneys. The president of the United States does. See Article 2 of our Constitution. You are fired, Donald Kinsella. Yeah, Todd Blanche presiding over this wholesale assault on the First, Fourth, and Fifth Amendments, lecturing other people about Constitution, how does it go, is quite a thing. Yeah, especially since Blanche left out that part where the Constitution says, with the advice and consent of the Senate, right? Like Trump can nominate principal officers, but he can't just install them by executive fiat. I mean, it is Congress and the judges who are acting legally here. The president is not, again, as every court to consider these questions has always ruled. Yeah, this issue is not going to go away. Yeah. Especially because the judges in New Jersey put out a request for candidates to lead the U.S. Attorney's Office in New Jersey. Right. So they want to do the same thing that just happened in New York, and the Trump administration immediately axed the competent candidate there. So presumably that's what's going to happen if they hire anybody in New Jersey. And there's actually some super interesting litigation over the workaround Pam Bondi magicked up in New Jersey after the Third Circuit told Alina Havada quit holding herself out as U.S. attorney. If you're a subscriber, we're going to get into that right now. For everyone else we will see you on the other side of this brief ad break to talk about the administration efforts to one weird trick their way around the Fourth and Fifth Amendments and the rest of the Constitution And we're back. OK, let's talk now about a couple of cases where the Trump administration is appropriating a legal procedure and perverting it so that it accomplishes something completely illegal and cruel. The first is in Idaho. It involves an attack by the government on a horse race at a Latino festival on October 19th. And I know attack is like a strong word, but I don't I just don't think there's any other word for it. This was a Mexican heritage festival attended mostly by families. At one o'clock in the afternoon, a helicopter circled overhead and 200 state and federal law enforcement agents with their guns drawn descended on this peaceful crowd of like 400 people. According to the complaint, police officials, federal and state, zip tied everyone over the age of about 10 and kettled them for four hours on the racetrack itself with no shelters or bathrooms or food. They had no medics. So multiple people whom they hit on the head could not receive care. The agents did, however, erect a tent for themselves, in which they interrogated the attendees about their immigration status at leisure. And by the way, this was, as we said, a joint operation between DHS and the state and local police. Another Kavanaugh stuff. Yeah. So like Justice Kegstan said, it's fine if they racially profile you. The friendly masked man without identification just asks you if you're a citizen and then lets you go if you say yes. There's no Fourth Amendment problem here. Sarcasm aside, this complaint is deeply, deeply disturbing. It describes officers zip-tying minors and then tightening the restraints when the kids complained. One child still has scars four months later. They used racial slurs, which may be the least surprising thing in all of this. They shot machine guns into the air and at cars. Yeah. The putative justification for this assault was illegal gambling. Oh. The feds had a warrant to arrest the owner of the racetrack and four others for running an unlicensed betting operation. And they used the warrant as justification to detain 400 people for four hours and check their immigration status. And the warrants, by the way, they arrested those guys immediately. The last one of the guys wasn't there that day, but everybody else they got. And then even though this was a warrant for the arrest of these people, they barely bothered to search the business office where this alleged gambling operation was taking place. I mean, clearly, this was an immigration dragnet using these criminal warrants as an excuse to get around the Fourth Amendment so that they could search and detain hundreds of mostly Latino people, none of whom were suspected of actual crimes. Yeah, I think it is worth starting with the fact that ICE does not have general detention and arrest authority, right? Like, I think the authority that the Department of Homeland Security is relying on here is 8 U.S.C. section 1357. That allows DHS ICE to make arrests for crimes that the agents actually witness or felonies for which they have reasonable suspicion to make a stop and then conduct an advanced inquiry, right? And the reason for that is because you don't want to have a situation where an ICE agent watches somebody commit a crime and then has to wait for law enforcement to come back with a warrant for the crime that they just went. No, you give them this sort of joint authority. But DHS, as is the case with virtually everything the Trump administration has done in its second term, is stretching that beyond the breaking point to say that they don't have to have reasonable suspicion to stop someone in the area where a crime has been committed. That that is not the law. But DHS has publicly said that that's their belief that it's what the law is. So here they had a warrant for five guys, which they then bootstrapped into a general immigration raid on hundreds of families who happen to be nearby, who they don't even allege had anything to do with the crime. So the lawsuit brought by the families alleges eight causes of action. And the connective tissue underlying those eight causes of action are the 42 U.S.C. sections 1983 and 1985 claims. Those statutes were enacted as part of the Civil Rights Act of 1871. And they are the civil laws that you can bring for damages when law enforcement officials violate your civil rights. But there's a problem. And that's that Section 1983 claims are only available when your rights are violated by someone acting under color of state law like your local cops. You cannot sue ICE or the FBI under Section 1983. That's because those laws were passed, as you said, part of the Civil Rights Act, and there aren't federal police. So the problem Congress was trying to solve were local cops in southern states beating up black citizens and depriving them of their civil rights. So there wasn't an analogous federal statute. And then as federal law enforcement expanded in the 20th century, the Supreme Court filled in that gap by creating the federal equivalent of a Section 1983 claim in a case called Bivens versus six unknown narcotics agents, which they immediately began paring back so much that it sort of doesn't exist anymore. The joke is that you qualify for a Bivens action if your name is Webster Bivens. I know it's not. You're out of luck. Right, right. In particular, the Supreme Court made it virtually impossible in 2022 to bring a Bivens action against ICE agents. That was a case called Egbert v. Boulay, which we've talked about a bunch of times on the show. Right. So the bottom line is that these plaintiffs are represented by experienced ACLU lawyers. And they know they have to walk a tightrope here. They can't bring the 1983 claims against ICE or FBI agents alone because they're feds. And they don't want to allege Bivens claims against those federal agents because they know they're probably going to lose in light of the Supreme Court's decision in Egbert versus Wohl. So what the lawyers have done here is really clever. They've alleged a conspiracy between the state actors that they can sue under Section 1983. That is the local police departments and the sheriff's office. And they've alleged that they were in a conspiracy with FBI and ICE. And as long as at least one of the members of the conspiracy was acting under color of state law, that qualifies under the statute. But the flip side of this is that it means that the burden of proof will be on the plaintiffs to show that there was a meeting of the minds among all of the co-conspirators to violate the civil rights of those individuals who are present. I love this case. It is so interesting and creative. And like, look, I know that meeting of the minds is supposed to be an uphill climb. But here, the state and local police rolled up there in a convoy, right? They worked together to herd these poor people into this functionally a paddock and detain them. And then they all posted over social media congratulating each other on their joint effort. So I think that that might not be the hardest part of this claim. Now, that said, 1983 cases are very hard to win. And this one is styled as a class action. But I think it is very important that we keep bringing these cases. This is Nazi shit, right? They sorted the festival attendees by color. And they violated the civil rights of all of these families. And not that it matters. It wouldn't matter if these were if these were mostly non-citizens. Right. Kavanaugh and we talk about Kavanaugh stops because Justice Kavanaugh in this disgraceful kind of running his mouth in one of the shadow docket decisions said it's fine if they racial profile because lots of people in these places are undocumented immigrants. But the fact of the matter is that most Latino people in Idaho are not undocumented, right? Most of them have legal status. So there isn't even that ridiculous crutch, which Kavanaugh kind of wrote into the law, like, well, if there's a lot of, you know, statistically speaking, like, no, not statistically speaking. This was just targeting people because they were Latino. Yeah. And using these gambling warrants as a bootstrap end. So I'm very glad about this lawsuit. I think it's important to kind of hold these people to their paces and publicize what they've done. Strong agree. OK, our second act of bootstrapped cruelty, for lack of a better term, has to do with 37 death row inmates whose sentences were commuted by President Biden in December of 2024. At that time, these inmates were all housed at the Bureau of Prisons Special Confinement Unit in Terre Haute Penitentiary in Indiana. When their sentences were commuted, that triggered a process to move them back to other prisons since they weren't on death row anymore. None of these prisoners was slated to go to ADX Florence, which is the supermax prison in Colorado known as Alcatraz of the Rockies. That is a horrible, horrible, inhumane place. It has 23 hours a day in solitary confinement. There's basically no contact with the outside world. It is specifically for prisoners who are deemed too dangerous to be in a regular prison. That's where they put El Chapo Guzman and Ted Kaczynski. The only one of these death row clemency grants guys who wasn't sent there was transferred to Arizona since Trump's executive order instructed Bondi to see if any of the states wanted to take a track at killing these prisoners and imposing capital punishment. And apparently Arizona said yes. Yeah, I want to unpack that just a little bit. So what President Biden did was commute rather than pardon these 37 death row inmates. That was reduced the sentence from to be executed to life imprisonment without parole. That's why they're still within the Bureau of Prison system. And now what Donald Trump is trying to do is take it out on those 37 recipients by sticking them in the very worst prison he can direct them to. It's just absolute naked cruelty. Right. So, yeah, on his first day in office, Trump put out this executive order instructing the AG to ensure that these offenders are imprisoning conditions consistent with the monstrosity of their crimes and the threats they pose, which is, you know, and then almost immediately all 37 of them were told that they were being transferred to ADX Florence. So these inmates sued. They raised a bunch of administrative and constitutional claims. And that case landed on the docket of Judge Tim Kelly in D.C. We've talked about Judge Kelly before. I have practiced in front of Judge Kelly. He is a Trump appointee, but he's not a MAGA guy. He's basically a normie conservative. And he wrote an extremely thoughtful opinion saying that it violated the plaintiff's due process rights to dump them in this maximally restrictive prison without an individualized determination that that was an appropriate placement for each one of the defendants. He said that, quote, Two, those officials intervened in the BOP redesignation process that was already underway, dictating outcomes with which BOP officials subordinate to them were not genuinely free to disagree, which resulted in a dramatic uniform about face in how those redesignations were handled. Yeah. And there's an ample testamentary and documentary record on this, right? All of these redeterminations were already underway, and the Bureau of Prisons had told lawyers for these inmates, we think you're going to go here, we think you're going to go there. None of the places was ADX Florence. Yeah And the key word there is predetermined right If your supervisor has told you in advance send these people to ADX Florence then that violates your due process rights because you not getting any process right It already been decided in advance And the law is just very very clear that if a supervising official has told you to reach a particular outcome that not a fair process Yeah, I think it's also interesting that Judge Kelly cited Trump's social media posts telling the plaintiff to go to hell as evidence that there was no real process here. I mean, during the first Trump administration, you saw the courts really hesitant to look at Trump's public outbursts as evidence of intent or animus. And I think that was in part because the Justice Department stood apart from him or at least claimed to, aspired to stand apart from the president. Here, they've made it a point to say we are, you know, basically an arm of the president and the president can control everything. If you don't support the president's agenda, we will fire you. Yeah. Right. And look, Pam Bondi, make sure to let that be known every day on social media. Here, in this case, she put out these horrible, bloodthirsty social media posts gloating about how awful it would be for these men at ADX Florence. Just so gross. Right. And of course, those posts showed up in Tim Kelly's opinion, which, you know, they weren't referencing Bill Barr's tweets the first time around. Anyway, look, I think so much about Justice Blackmun saying in 1994, I shall no longer tinker with the machinery of death. And looking at this case is so gross and it really drives home how much state sanctioned murder has corrupted our entire justice system. You've got the attorney general reveling in sadism and pretending that it's like justice and virtue. I agree 100%. I mean, I don't think you can strike a middle ground here. Yeah. So, OK, every one of these inmates, even the one who'd been an orderly in Terre Haute and had zero disciplinary record for 22 years, got the exact same recommendation verbatim saying staff reviewed the inmate security needs. The committee reviewed his history of disciplinary infractions, institutional adjustment, threat to staff and inmates in current presentation. And it was determined that his security concerns were extraordinary and he could be placed in the ADX. Boiler plate language, cut and paste. That is not an individualized review. That is a predetermined outcome at the direction of the head of the Department of Justice. I mean, at the direction of the president, right? The Justice Department denied it, of course. But, you know, they also denied moving Ghislaine Maxwell to Club Fed after she said Trump was innocent as a lamb, even though Club Fed, by the way, is categorically off limits to sex offenders. My point is the Department of Justice just lies all the time. Yeah. And Trump's appointees know that, especially the ones in D.C. who spent four years mopping up the damage from January 6th only to have Trump pardon every single insurrectionist. But let's not lose sight of this good thing that happened here, which is Judge Kelly said, no, you can't just pretend prisoners have no due process rights. These are unpopular people, and it is important to not lose our humanity by denying theirs. And the court did it in a way that signals he's no longer giving this administration the presumption of regularity. And I think from a Trump appointee, that's huge. I agree. Okay. We're going to take another quick ad break, unless you're a subscriber at LawAndChaosPod.com or on Patreon.com slash LawAndChaosPod, in which case, no ads for you. Not today, not ever. And for everyone else, we will be right back. talking about the filthy Fifth Circuit and how the district court judges are handling their chaos. And we're back. On Tuesday's show, we broke down the Fifth Circuit's decision to green light concentration camps. Liz, you named that episode. Fifth Circuit goes full Korematsu, and I don't think that's an exaggeration. This was a signal that this administration can intern every single immigrant who doesn't have legal residence here if they want to. The case is captioned Buen Rostro-Mendez v. Bondi, and it is the first time where an appellate court blessed the Trump administration's ahistorical and wrong interpretation of the illegal immigration Reform and Immigrant Responsibility Act of 1996, known as IRERA. Until last Friday, it was settled law that under IRERA, the mandatory detention provisions of 8 U.S.C. Section 1225 apply only to applicants for admission, that's the language in the statute, who are immediately detained at the border. Everybody else was subject to the next clause, 1226. Those are the discretionary detention provisions, and that gives any detainee being held by Homeland Security the right to request a bond hearing before an immigration judge. If that immigration judge determines that the immigrant is neither a danger to the community nor a sufficient flight risk, they can order that person released after posting a bond of at least $1,500 and their agreement to abide by the law, check in with the Homeland Security from time to time, that sort of thing. Every prior president, including Donald Trump in his first term, understood IRIRA to work in that way. But then on July 8th, the administration issued this secret internal memo purporting to revisit that longstanding legal analysis. Under the new interpretation, DHS was free to classify any immigrant present in the United States outside of legal status as an applicant for admission for purposes of Section 1225, regardless of whether that immigrant had been detained at the border or had been on the non-detained docket for years or was in fact in the asylum process. Right. And just to illustrate how radical this argument, that argument was rejected by the United States Supreme Court in a 2018 opinion written by Justice Samuel Alito. It was also rejected by the Seventh Circuit Court of Appeals, which is the only other appellate court to weigh in on it. It was rejected by more than 350 district court judges because all of these cases have to go individually. So the administration kept going back with the same loser argument. Everybody except the hacky, just a handful, 12 cases, four or five of the hackiest Trump appointees ever signed on to this argument because it's nonsense. But on Friday, February 6th, the Fifth Circuit gave Trump what he wanted. They said that Section 1225 does indeed permit DHS to detain millions of immigrants indefinitely without even giving them a bond hearing. So now ICE is going to kidnap people and immediately move them to the Fifth Circuit. It's going to be a race to get them out of every other circuit before their families can hire lawyers and file habeas corpus petitions where they live. Because as we've said, habeas has to be filed where the person is. So if DHS seizes an immigrant off the street and ships him to Texas or Louisiana or Mississippi before he can talk to a lawyer or his family can hire a lawyer and file a habeas petition on his behalf, Then that petition is going to have to be filed in the Fifth Circuit where they've said he doesn't have a statutory right to a bond hearing. Even somebody who has been in the country for years and was kind of let go and has established a life, hasn't done anything wrong, paid taxes, went to work, that person can be interned indefinitely and without a bond hearing. But once again, the district court judges are pushing back in the days since the Fifth Circuit handed down its ruling. At least two judges in Texas, including a George W. Bush appointee named Kathleen Cardone, have determined that when Rostro Mendez does not prevent them from requiring the government to give bond hearings. This is, I think, another really good illustration of why the rule of law still matters and why we cover these cases in so much depth. Right. Because what these two judges did was to carefully parse the Fifth Circuit's language and then craft the appropriate legal remedy. So here's what happened. The Fifth Circuit, as you said, Liz, agreed with the Trump administration's wrong interpretation of the statutes, which are eight U.S.C. sections 1225 and 1226. 1226. And that means that, again, in the view of the Fifth Circuit, Congress did indeed delegate to ICE the power to detain millions of immigrants indefinitely without due process back when it enacted IRERA in 1996. Even though, you know, no president has ever noticed that power until now. And there's contemporaneous language in the legislative history that said they were concerned about ICE being able to detain 40,000 immigrants. But, you know, what's millions, right? But that's not the end of the story because Congress, whatever it wants to delegate to an executive branch agency, cannot delegate powers that are in excess of the Constitution. And the Constitution doesn't just protect citizens. It protects the people. And that means it is well settled as a matter of law that non-citizens in this country have basic Fourth Amendment rights to due process. So the Fifth Circuit's holding was a statutory holding. It said that the statute 1225 does not entitle immigrants detained by ICE in Texas to a bond hearing when they're detained pending removal proceedings. But that has nothing to do with the Constitution. The Fifth Circuit did not talk about that constitutional due process issue. It just confined itself to the statutory interpretation. And so when it came back to the trial court, they didn't send it and say, here, you must dismiss Buen Rostro-Mendez's habeas petition. They sent it back to the trial judge for further proceedings consistent with the opinion. And because the government only asked the Fifth Circuit to bless its interpretation of the statute, that opinion did not prevent trial court judges from ordering detainees to be given a bond hearing on constitutional grounds, which is a totally different thing. Right. And Judge David Briones arrived at essentially the same outcome. Right. He relegated the Fifth Circuit's opinion to a footnote in his order. And again, he ordered the government to give an ICE detainee a bond hearing. And what he said in that footnote was this court acknowledges the Fifth Circuit's presidential decision in Buenrastro Mendez v. Bondi issued on February 6th to 2026. However, Buenrastro Mendez does not change this case's outcome on procedural due process grounds. In its original due process analysis, this court accepted without deciding that respondents interpretation of the statute was true. So, in other words, he's saying, yeah, what the Fifth Circuit concluded doesn't change my analysis on the Constitution at all. So, OK, bottom line here, the trial courts who want to do the right thing are going to be able to do it. They will be able to do it on constitutional basis, even though the Fifth Circuit has had this fakakta statutory ruling and so that they will be able to grant these habeas petitions. Now, this is terrible, right? It's terrible. I mean, this is terrible that we're living under this ridiculous statutory regime, which would theoretically justify these. What are concentration camps? Massive concentration camps in the Fifth Circuit. But all is not lost. There are certainly bases for judges who would like to provide relief to provide it. I think that's right. And I would add on top of that, that the Fifth Circuit's opinion in Point Ross Tremendous is not binding precedent in the 47 states that are not in the Fifth Circuit. Those judges, even district court judges, are free to say, yeah, we don't find that reasoning persuasive at all. OK, we're going to take our last ad break and then we're going to come back with another story about district judges fighting back. And this time it is Judge Ana Reyes in D.C. We've talked about her a lot. She's amazing. And this is a case about temporary protected status. And today, during a hearing, Judge Reyes did something really remarkable. And we're back. Okay Liz let talk TPS which is Temporary Protected Status The relevant statute here is 8 U Section 1254A It says that if a country is subject to an ongoing armed conflict or an earthquake flood drought epidemic or other environmental disaster then the Attorney General may but does not have to designate all or part of that country for Temporary Protected Status for TPS for a temporary period of time not to exceed 18 months During that time frame any immigrant who is a citizen of the TPS state who meets a very lengthy list of criteria for eligibility may not be deported back to the country until that temporary emergency expires. This is a humanitarian program because, you know, as a country, we think it's morally unconscionable to deport anyone to a natural disaster or a war zone, regardless of all of the other legal considerations. Well, you say we, but when Trump took office, Kristi Noem immediately purported to rescind the TPS designations for Venezuela and Haiti. That's illegal. There's no provision to rescind those designations in the statutes. And the court stopped it, or at least I should say held proceedings such that it didn't go into effect in February of 2025. It dragged out until December of 2025. The Supreme Court allowed that to go forward. But as we have seen, those TPS designations were about to reach the end of their natural lifespan anyway. And this is the critical part for this lawsuit. Under 8 U.S.C. 1254A, Secretary Christine Ohm does in fact have the authority to terminate those designations for Venezuela and for Haiti. And she purported to do that in December. But 1254A requires that the government shall review the conditions in a TPS country and shall determine whether the conditions for such designation continue to be met and shall provide for publication each such determination, including the basis for the determination. So she has to say why and she didn't. Instead, what she did is tweet. I just met with the president. I am recommending a full travel ban on every damn country that's been flooding our nation with killers, leeches and entitlement junkies. Our forefathers built this nation on blood, sweat, and the unyielding love of freedom not for foreign invaders to slaughter our heroes, suck dry our hard-earned tax dollars or snatch the benefits owed to Americans. We don't want them, not one. I know I've said gross like eight times this episode, but like, how does a human being say that? I have no idea. By the way. She's a Christian. Not that it matters, but the TPS program does not suck dry our hard-earned tax dollars. It actually is a substantial revenue generator. TPS holders pay $5.2 billion in taxes annually. Anyway, a group of plaintiffs looked at that tweet and the underlying conditions, and they sued to block Noam from terminating Haiti's TPS designation. That case is captioned Leslie Miot. Apologies if I'm getting the name wrong. V. Trump. I'm going to first start off. I'm going to let Judge Reyes summarize who the plaintiffs are. She says in her order, Plaintiffs are five Haitian TPS holders. They are not, it emerges, killers, leeches, or entitlement junkies. They are instead Fritz-Emmanuel Leslie Miot, a neuroscientist researching Alzheimer's disease. Rudolf Civil, a software engineer at a national bank. Marlena Gale Noble, a laboratory assistant in the toxicology department. Merica Merlene Laguerre, a college economics major. and Vilbrun Dorsainville, a full-time registered nurse. So Judge Reyes ruled that bleeding out racist shit on social media doesn't actually qualify as a reasoned determination for the purposes of the Administrative Procedure Act, but is in fact arbitrary and capricious. And then she entered a stay of the TPS termination pursuant to 5 U.S.C. Section 705. That's effectively a preliminary injunction. And by the way, as we were recording this just today, Judge Patty Sarris in Massachusetts ruled in the exact same way. I mean, in less colorful terms, but with respect to South Sudanese TPS residents of the country. So that's another good ruling. So the government demanded that Judge Reyes stay her ruling pending appeal, which would have allowed them, by the way, to deport all of these people immediately. 350,000. 350,000 people. And they said it was an emergency. She had to stay it right away, but they were a little hinky on why. Yeah, that's right. And to that point, Judge Reyes held a hearing today in which she denied the government's request for a stay. And she pointed out the inconsistency of the government kind of trying to have it both ways, right? And she viewed that through the lens of irreparable harm, which is one of the things you need to demonstrate in order to get a court to issue a stay of its orders, right? The DOJ lawyers, as you point out, Liz, were deliberately squirrely about whether they intended to start deporting Haitians as soon as the order was stayed. I mean, they definitely did. Right. Right. And so what Judge Reyes said was, look, either the government doesn't have any concrete plans to start immediate deportation proceedings, at which point they're not suffering any harm, let alone irreparable harm. My order isn't stopping you from doing a thing you don't want to do anyway. Or if the government does intend to start deporting Haitians as soon as the TPS status is terminated, then, yeah, OK, in that case, you might be harmed by the 705 stay order. But in that case, if that's really what you want to do, it's pretty obvious that the plaintiffs are going to suffer far worse irreparable harm, right? Like not just that they're being sent to Haiti, which is a war zone, but because they will then be outside the jurisdiction of U.S. courts. Yeah, I don't want to skip over that part. If Judge Reyes' order is stayed and the administration can terminate Haiti's TPS designation, then that will let the Trump administration immediately today deport 350,000 immigrants to a country that is on the State Department's level for do not travel list. Right. That's that's an international state of emergency. There's widespread gang violence, kidnapping and civil unrest. And last week, four Haitian women who we'd recently deported to Haiti from Puerto Rico were found dead. They've been beheaded. So for the government to say, we are going to suffer irreparable harm if you don't let us carry out these deportations immediately is so crazy as compared to the irreparable harm that people will be subject to if they're deported to a war zone. So those are the real stakes of this. I mean, a lot of it sort of seems bloodless and we talk a lot about the one weird trick of it, but that's what we're talking about here. Yeah. So that was really remarkable and significant. And as you said, a matter of life and death. And then Judge Reyes did did something else. She began by saying, I wasn't sure if I wanted to put this on the record, but but I talked to my colleagues on the bench. Right. Other judges in the U.S. District Court for D.C. And I think I have to. And and she started out with this kind of self-effacing anecdote. I'm like, where is this going? She says, yeah, last night I was at Georgetown Law School. I was asked to moderate a debate by the Federalist that the Federalist Society had put on. The topic was was Dobbs correctly decided. And then this was sort of the last moment of levity. she said you know moderating a debate about abortion is going to be the least controversial thing i do this year and then she says for the record yes i am an immigrant to this country no i didn't hide that fact during the nomination process i didn't hide it from the american bar association i didn't hide it from president biden i didn't hide it from the 100 members of the senate that voted on my confirmation. And then she said, and yet when I decide these immigration cases, I get referred to as a foreign born lesbian. I don't get referred to as a magna cum laude graduate of Harvard Law School with 22 years of legal experience. And then she started reading her hate mail. And I don't know how to reproduce that. Right. She gets called the C word so often that what she said was, well, I can take it. But you guys should at least pick up a thesaurus now and then. She read one email that said, I hope you lose your life at lunchtime, you worthless. And then there was a slur. She read another email that said, the best way you can help America is to eat a bullet. And then Judge Reyes said that her colleagues are also getting death threats, themselves and their families. So, OK, look, those emails are obviously appalling. But the fact that she talked about this from the bench is really a sea change. And I think I think we need to kind of let's go back in just like four years, less than four years to when Judge Tanya Chutkin, also in the U.S. District Court for the District of Columbia, was presiding over Trump v. United States. And she issued the kind of the mildest of gag orders, not saying that Trump couldn't attack her, but saying he couldn't attack jurors and couldn't attack line attorneys in the U.S. Attorney's Office. And Trump and Todd Blanche, by the way, screamed bloody murder that this was a great assault on the First Amendment. And part of the reason that he was able to make that argument was that there was for such a long time this taboo on judges and public officials, but particularly judges talking about the threats to them. One, because it kind of made it look like maybe they would be swayed by these threats, but also because the security apparatus around them said, if you acknowledge these threats, you will encourage them. And so judges just never talked about it, right? You would occasionally get a conviction. In fact, somebody, you know, multiple people went to jail for threatening, threatening Judge Chetkin and threatening Fonnie Willis, the Fulton County prosecutor. But they didn't talk about it because, as again, that was not the judicial culture. And now they're starting to talk about it because I think, A, it's much, much, much worse. Like we talked in the first segment about the Justice Department compiling a hit list of judges that they want to move to impeach. And that is, you know, that is a part of what we see every day with the Justice Department, Pam Bondi and Todd Blanche attacking judges in their social media feeds with the direct goal of making sure that they get harassed all the time. Yeah, they know exactly what they're doing. Right. It's an effort to intimidate. It is an effort to make it costlier for judges to do their job. It's an attack on the judiciary. And of course, it comes from the top right. Donald Trump tweets horrible shit all the time. And so I read this not as a panic call, but as a place where the judges are going to start to talk about this because ignoring it has allowed Trump and his minions to get away with it in ways that are really, really, really dangerous. I think that is exactly right. And as I was listening to this recitation of the hate mail, I was wondering how that got situated on the record in this case, right? Like this is not in the context of a motion for a gag order, right? This was not in the context of a motion for sanctions. What it was leading to was Judge Reyes saying on the record with DOJ lawyers present, we, and by that she meant the entire federal judiciary, will not be intimidated. That's what she said word for word. She laid down the marker. And I'm glad to see it for all of the reasons that you said. I absolutely am glad to see it. I mean, I think it is a sign of distress from the judiciary, right? And a signal that their traditional kind of reticence to speak in celerity is not serving them well. And it's, look, we've seen many, many signs of distress. But I think it's important that what she said was, I'm not telling you this because I'm scared. I'm telling you this because I'm not scared and you're not going to scare me, which is important. And that's the note I want to end on here. So thank you guys so much for hanging out with us and trusting us. I know that these are not always easy conversations to listen to, but we're glad that you're here with us. So we'd love for you to support us at patreon.com slash lawandchaospod or lawandchaospod.com or leave us a five-star review on your podcast platform of choice. Have a lovely, lovely weekend. And I hope that it is thawing where you are. It's still pretty icy where we are, but we got hope. We got hope it'll get to be 40 degrees this weekend. Thanks, guys. Law and Chaos Podcast is a production of Raised 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. Law and Chaos Pod. Copyright Raised Up to Media, LLC. All rights reserved.