# Guns and Drug Users & World Cup Visa Problems

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 19 Jun 2026, 36 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/bab3a0b2-0287-4b7a-a4e3-b46e004986bc/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Constitutional law expert Louis Michael Seidman, a professor at Georgetown Law and author of the book “The Constitution Cannot Save Us: Why We Can No Longer Rely on Our Founding Document,” discusses the Supreme Court allowing marijuana users to have guns. Immigration law expert Leon Fresco, a partner at Holland & Knight and the former head of the Office of Immigration Litigation, discusses World Cup visa problems and the Supreme Court taking up a case involving the prolonged detention of ICE detainees. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: John Adams took a tankard of hard cider with his
[0:11] Speaker 2: breakfast every day. James Madison reportedly drank a pint of
[0:16] Speaker 2: whiskey every day. Thomas Jefferson said he wasn't much of
[0:20] Speaker 2: an user of alcohol. He only had three or four
[0:22] Speaker 2: glasses of wine a nite. Okay, are they all habitual
[0:27] Speaker 2: drunkards who would be properly disarmed for life?
[0:31] Speaker 3: You may be wondering why. Justice Neil Gorsich was questioning
[0:35] Speaker 3: whether some of the Founding Fathers would have been considered
[0:38] Speaker 3: habitual drunkards. After all, the case before the justices was
[0:43] Speaker 3: about a federal law banning gun ownership by marijuana users. Well,
[0:48] Speaker 3: the Supreme Court's recent analysis of Second Amendment cases relies
[0:53] Speaker 3: on the government showing a history of analogous restrictions to
[0:57] Speaker 3: support gun control laws, and in this case, the government
[1:00] Speaker 3: pointed to Founding Error laws that restricted the rights of
[1:04] Speaker 3: habitual drunkards. But the Court wasn't convinced, and today it
[1:09] Speaker 3: ruled unanimously that the government can't categorically bar marijuana users
[1:14] Speaker 3: from possessing firearms and can't prosecute a Texas marijuana smoker
[1:19] Speaker 3: for having a gun. Justice Coursich wrote the majority opinion,
[1:23] Speaker 3: finding that the government's quote expansive approach to the federal
[1:27] Speaker 3: ban couldn't be squared with the country's historical approach toward firearms.
[1:33] Speaker 3: My guest is an expert in constitutional law, Louis Michael Sideman,
[1:38] Speaker 3: a professor at Georgetown Law. His new book is entitled
[1:42] Speaker 3: The Constitution Cannot Save Us Why we can no longer
[1:45] Speaker 3: rely on our founding document. This was about the constitutionality
[1:51] Speaker 3: of one part of the Gun Control Act. So explain
[1:54] Speaker 3: what the justices decided here.
[1:57] Speaker 1: So the Court was unanimous and they held that the
[2:01] Speaker 1: Second Amendment to the Constitution did not permit depriving somebody
[2:05] Speaker 1: of a gun just because of marijuana use. I think
[2:10] Speaker 1: that the Court in this case, it's reached results that
[2:14] Speaker 1: most Americans would think are common sense, make logical sense.
[2:20] Speaker 1: In a case a couple of years ago, the Court
[2:23] Speaker 1: rejected a claim by a violent domestic abuser that he
[2:28] Speaker 1: had a right constitutional right to have a gun. But
[2:32] Speaker 1: the court says an occasional or even a regular marijuana
[2:36] Speaker 1: user does have a right to a gun. And I
[2:38] Speaker 1: think most people can understand that distinction and would probably
[2:42] Speaker 1: agree with it. The problem with what the Court's done
[2:46] Speaker 1: is not with the particular results it's reached. The problem
[2:50] Speaker 1: is with the test it's used. So what the Court
[2:54] Speaker 1: has said is that the way you decide these cases
[2:59] Speaker 1: is by looking to the eighteenth century to the seventeen
[3:04] Speaker 1: hundreds and seeing if there was some practice that was
[3:07] Speaker 1: analogous to the regulation that's being upheld now, and that
[3:12] Speaker 1: leads to really bizarre sorts of historical inquiry. So a
[3:16] Speaker 1: lot of the Court's opinion in this case was devoted
[3:20] Speaker 1: to whether or not laws that restricted the activity of
[3:26] Speaker 1: habitual drunkards in the eighteenth century were the same or
[3:31] Speaker 1: different from laws that prohibit marijuana users in the twenty
[3:35] Speaker 1: first century from having a gun. And that kind of
[3:38] Speaker 1: analysis is kind of silly, because, of course, when you
[3:43] Speaker 1: compare any two statutes, they're going to be alike and
[3:47] Speaker 1: different in an infinite number of respects. So it largely
[3:51] Speaker 1: depends on whether you seize on the likeness of the difference.
[3:55] Speaker 1: And when you're comparing the eighteenth century to the twenty
[3:58] Speaker 1: first century, almost everything is really different because the country
[4:05] Speaker 1: was really different in the eighteenth century.
[4:07] Speaker 4: It was a.
[4:07] Speaker 1: Small, rural, slave dependent republic huddled along the eastern seaboards.
[4:13] Speaker 1: There were no automatic weapons, no dribe by shootings, no terrorism.
[4:20] Speaker 1: It was just a completely different place. So what you
[4:24] Speaker 1: end up with, I think, is the justices having more
[4:29] Speaker 1: or less free range to strite down laws that they
[4:32] Speaker 1: think finally common sense, uphold laws that they don't think.
[4:37] Speaker 1: And if that's all that the justices are going to do,
[4:39] Speaker 1: then that raises really serious questions about whether they are
[4:44] Speaker 1: to be substituting their judgment. Were democratically elected institutions.
[4:49] Speaker 3: Well, I mean, isn't that the problem with this textualist
[4:53] Speaker 3: analysis or originalist analysis that the Court is now wedded
[4:58] Speaker 3: to because of the sixth concern? So you have not
[5:01] Speaker 3: only the conservatives, but the liberal Justice is engaging in
[5:04] Speaker 3: the same kind of analysis looking back in time.
[5:08] Speaker 1: The problem with originalism they're really two separate problem and
[5:13] Speaker 1: they're both really serious. One problem, you might put it
[5:17] Speaker 1: this way. One problem is how would we ever know?
[5:20] Speaker 1: And the other is why would we ever care?
[5:23] Speaker 4: Right?
[5:24] Speaker 1: So, how would we ever know? I have no idea
[5:27] Speaker 1: what James Madison would think about gun control legislation in
[5:32] Speaker 1: twenty first century America. He didn't know anything about it.
[5:35] Speaker 1: Neither did his contemporaries. We're not going to kind of
[5:38] Speaker 1: dig him out of his grave and say, Jimmy, what
[5:41] Speaker 1: do you think about twenty first century America. That's just
[5:45] Speaker 1: not going to happen. So we really don't know the answer.
[5:49] Speaker 1: Suppose we did know the answer, why should anybody care.
[5:53] Speaker 1: The people who wrote the Second Amendment died a very
[5:57] Speaker 1: long time ago. What we do with guns today doesn't
[6:01] Speaker 1: affect them, but it does affect us, and people who
[6:05] Speaker 1: are alive now, I would have thought have some right
[6:08] Speaker 1: to be in control of their own country.
[6:10] Speaker 3: The outcome was unanimous, but the justices were divided on
[6:13] Speaker 3: some of the reasoning. And I think underlying that unanimity
[6:17] Speaker 3: was the fact that, as Justice Gorsuch puught it, millions
[6:21] Speaker 3: of Americans use marijuana, and gorse It said the ruling
[6:25] Speaker 3: was a very narrow one.
[6:27] Speaker 1: The Court's ruling is quite narrow. I think Justice gorse
[6:32] Speaker 1: It's made it narrow in an admirable attempt to get unanimity,
[6:37] Speaker 1: and that's something very rare on this court. And he
[6:40] Speaker 1: achieved that all nine justices agreed with him, And I
[6:43] Speaker 1: think a big part of the reason is because the
[6:46] Speaker 1: opinion makes sense. It makes common sense to say just
[6:50] Speaker 1: because somebody uses marijuana, a drug that, according to Justice Gorsas,
[6:55] Speaker 1: there's some evidence it's more widely used than alcohol today.
[6:59] Speaker 1: So the notion that just because of that, somebody should
[7:03] Speaker 1: be prohibited from owning a gun does seem just silly.
[7:07] Speaker 1: I think the problem is going to arise when the
[7:11] Speaker 1: intuitions of five of the justices are not intuitions widely
[7:17] Speaker 1: shared by most Americans, and then you do face the
[7:20] Speaker 1: difficulty of why they should control these decisions rather than
[7:25] Speaker 1: people who are actually responsible to the American people.
[7:29] Speaker 3: And there was an unusual, maybe even shocking pairing in
[7:33] Speaker 3: one of the concurrences. One of the most conservative Justices,
[7:37] Speaker 3: Samuel Alito, and liberal Justice Elaina Kagan, joined together to
[7:42] Speaker 3: say they would have written an even narrower opinion than
[7:46] Speaker 3: Gorsuch did.
[7:47] Speaker 1: I think that is almost certainly the only case this term,
[7:51] Speaker 1: and maybe the only case ever where the two of
[7:54] Speaker 1: them have joined in an opinion joined by nobody else.
[7:58] Speaker 1: So the opinion is written by Justice Alito, it's joined
[8:01] Speaker 1: by Justice Kagan. Justice Kagan is a very savvy operator,
[8:07] Speaker 1: and it's just become increasingly obvious that there is lots
[8:13] Speaker 1: and lots of tension between the justices. I think what
[8:17] Speaker 1: we're likely to see over the next couple of weeks
[8:20] Speaker 1: are a series of split decisions and very angry decisions.
[8:25] Speaker 1: And so Justice Kagan this was an opportunity for her.
[8:29] Speaker 1: It's important to the Court's public image that they try
[8:34] Speaker 1: to maintain some impression that they're not at each other's
[8:38] Speaker 1: throats and that they can agree about things and that
[8:41] Speaker 1: it's not just politics. So Justice Kagan seized an opportunity
[8:46] Speaker 1: both to demonstrate that and maybe to ingratiate herself some
[8:50] Speaker 1: with Justice Alito. But I wouldn't read too much into it.
[8:54] Speaker 1: The fact is the Court is very sharply divided for
[8:57] Speaker 1: the first time in generation. The division exactly mirrors the
[9:04] Speaker 1: political parties of the presidents who appointed the justices, and
[9:08] Speaker 1: that has led to a dramatic decline in public acceptance
[9:13] Speaker 1: and regard for the Supreme Court.
[9:17] Speaker 3: The Court's conservative majority has expanded Second Amendment rights since
[9:22] Speaker 3: twenty twenty two. Do you see this case as a
[9:26] Speaker 3: continuation of that or something different.
[9:29] Speaker 1: I think that having established some right to gun ownership,
[9:34] Speaker 1: it was inevitable that the Court was going to decide
[9:38] Speaker 1: it have to decide a series of cases about the
[9:42] Speaker 1: reach of that right, and so this is one of
[9:46] Speaker 1: a continuing line of cases that tries to bound the
[9:50] Speaker 1: right in some way, saying this is okay, this is
[9:54] Speaker 1: not okay. Unfortunately, as this progresses, I think it's becoming
[10:00] Speaker 1: more and more apparent that the test the Court is
[10:03] Speaker 1: using to reach those judgments doesn't really solve the problem,
[10:08] Speaker 1: and it's going to be very difficult for the Court
[10:11] Speaker 1: to convince people that it's actually acting in a principled
[10:15] Speaker 1: way and not just responding to the intuition that justices
[10:19] Speaker 1: have about various measures DC.
[10:21] Speaker 3: In sixteen states prohibit gun possession by habitual drug users,
[10:26] Speaker 3: and another twenty two restrict the rights of those people
[10:30] Speaker 3: to carry a weapon in public. Does this affect the
[10:34] Speaker 3: state laws?
[10:35] Speaker 1: Well, the Court is held at the Second Amendment right
[10:39] Speaker 1: applies not just to the federal government but to the
[10:42] Speaker 1: states as well. On the other hand, this decision is
[10:46] Speaker 1: so narrowly written that it's not at all clear that
[10:50] Speaker 1: it would invalidate the state laws you're talking about. In particularly,
[10:54] Speaker 1: the court saved the question or did not address the
[10:58] Speaker 1: question of whether it was constitutional for the government to
[11:03] Speaker 1: preim gun ownership on the part of people addicted to
[11:06] Speaker 1: illegal drugs.
[11:08] Speaker 3: Thanks so much for your analysis today. That's Georgetown Law
[11:11] Speaker 3: professor Louis Michael Sideman. His book is entitled The Constitution
[11:16] Speaker 3: Cannot Save Us? Why we can no longer rely on
[11:19] Speaker 3: our founding document. A note. Michael Bloomberg, the founder majority
[11:24] Speaker 3: owner of Bloomberg LP, the parent company of Bloomberg Radio,
[11:28] Speaker 3: is a donor to groups that support gun control, including
[11:32] Speaker 3: every Town for Gun Safety. Coming up next on the
[11:35] Speaker 3: Bloomberg Law Show. Visa problems at the World Cup. I'm
[11:39] Speaker 3: June Grasso and you're listening to Bloomberg. It was a
[11:43] Speaker 3: stunning World Cup performance as Kate Verd's goalkeeper Vozenia made
[11:49] Speaker 3: seven saves against tournament favorite Spain, with the game ending
[11:54] Speaker 3: in a goalless draw. He was named the Player of
[11:57] Speaker 3: the Match, but cried after the game because his mother
[12:00] Speaker 3: couldn't afford a visa to the United States. Cape Fird
[12:04] Speaker 3: is one of the fifty countries where citizens face a
[12:07] Speaker 3: fifteen thousand dollars fee to obtain US visas due to
[12:12] Speaker 3: President Donald Trump's border crackdown, something Vauzenia's mother couldn't afford.
[12:17] Speaker 3: The story has a happy ending, though, thanks to intervention
[12:20] Speaker 3: from House Minorti leader Jakim Jeffries. He spoke to Secretary
[12:24] Speaker 3: of State Marco Rubio and the State Department has arranged
[12:28] Speaker 3: for Vauzenia's mother to enter the country with all thieves
[12:32] Speaker 3: waived to watch her son's next match. But the World
[12:35] Speaker 3: Cup has exposed many of the problems with Trump's immigration policies.
[12:40] Speaker 3: My guest is immigration law expert ly on Fresco, a
[12:43] Speaker 3: partner Honda Night. Leon tell us about Vazenia.
[12:47] Speaker 5: He just had a remarkable game against Spain. It's almost
[12:50] Speaker 5: a Disney movie thing where he's a forty year old
[12:53] Speaker 5: has been goalie whose time has long passed and he's
[12:57] Speaker 5: working as a part time job seeing the goalie, and
[13:01] Speaker 5: he just stopped the best team in the world from
[13:03] Speaker 5: scoring any goals with.
[13:04] Speaker 4: A remarkable game.
[13:05] Speaker 5: And he wanted his mother to be able to see
[13:08] Speaker 5: the game live, but they denied her visa because the
[13:12] Speaker 5: Trump administration now has a new policy that you have
[13:14] Speaker 5: to put a fifteen thousand dollars bond in order to
[13:18] Speaker 5: come into the country as a visitor, and they didn't
[13:20] Speaker 5: have the money to pay for her to come in,
[13:23] Speaker 5: and so it's sort of a mini human tragedy where
[13:27] Speaker 5: you had this great Disney story in conjunction with this
[13:31] Speaker 5: example where clearly his mother I doubt what have overstayed
[13:35] Speaker 5: her visa after the FIFA matches. But nevertheless, you know,
[13:39] Speaker 5: sanity doesn't prevail.
[13:41] Speaker 3: I mean it took intervention by the House Minority leader
[13:45] Speaker 3: and the Secretary of State only after this guy achieved
[13:50] Speaker 3: fame to get his mother in.
[13:52] Speaker 4: Yeah.
[13:52] Speaker 5: I mean again, these are the things people are fake.
[13:55] Speaker 5: What's interesting about this is these are the things thousands
[13:58] Speaker 5: of people are facing every day. But we're all now
[14:00] Speaker 5: being exposed and uncovered as people literally in the World
[14:04] Speaker 5: Cup are having to go through.
[14:05] Speaker 3: This, including a World Cup referee. Well not a referee now,
[14:09] Speaker 3: I guess the US decided to reject one of the
[14:15] Speaker 3: fifty two referees, and FIFA had said that it undertook
[14:19] Speaker 3: a three year campaign to vet and select these World
[14:24] Speaker 3: Cup referees.
[14:25] Speaker 5: So what happened was there was a referee from Somalia.
[14:29] Speaker 5: And what happens is there are confederations, So there's an
[14:33] Speaker 5: African confederation, a European confederation, a North American confederation, a
[14:39] Speaker 5: South American confederation, et cetera. And those confederations decide who
[14:44] Speaker 5: are the best referees in the matches that are played
[14:47] Speaker 5: in that continent. And so one of the best referees,
[14:50] Speaker 5: who's considered one of the best referees not just in
[14:53] Speaker 5: the African continent, but amongst all the global referees, is
[14:57] Speaker 5: this referee from Somalia. And so FIFA had a rule
[15:01] Speaker 5: with the United States when people affiliated with FIFA wanted
[15:06] Speaker 5: to be able to come to the United States for
[15:08] Speaker 5: the World Cup, the United States should generally allow them in.
[15:11] Speaker 5: This individual applied for a visa to be a referee.
[15:15] Speaker 5: Interestingly enough, there's actually language in the Foreign Affairs Manual
[15:20] Speaker 5: because nothing could be done by Congress that said, well,
[15:24] Speaker 5: but there's not really a good place for these FIFA referees,
[15:27] Speaker 5: so they'll just come in on visitor visas. So he
[15:29] Speaker 5: applied for a visitor visa, and when it came time
[15:32] Speaker 5: to decide whether to approve him or not, the United
[15:36] Speaker 5: States Embassy said, no, this person has ties to al Shabab,
[15:41] Speaker 5: which is the terrorist organization that does terroristic things in Somalia.
[15:47] Speaker 5: And the question is what does that mean, because does
[15:50] Speaker 5: that mean he spoke to someone who was in al
[15:52] Speaker 5: Shabab that he did something. I mean because his daytime
[15:55] Speaker 5: occupation is referee, so it's unclear is it nighttime occupation.
[16:01] Speaker 4: Terrorists or did this go too far?
[16:05] Speaker 5: And so a lot of people were outraged that this
[16:08] Speaker 5: referee was not allowed to officiate in the United States.
[16:12] Speaker 5: But in the end, this referee wasn't assigned to any
[16:15] Speaker 5: games in Canada or Mexico either. So basically what FIFA
[16:19] Speaker 5: said is they'll pay this referee to just work even
[16:22] Speaker 5: though he's not actually gonna work, and they assigned him
[16:25] Speaker 5: to a game in Europe that's coming up in August
[16:28] Speaker 5: to sort of say here's our reparations to you. But
[16:32] Speaker 5: it was one of many situations where the immigration laws
[16:37] Speaker 5: of the United States have intersected with this World Cup
[16:40] Speaker 5: to show how things have significantly changed between twenty twenty
[16:46] Speaker 5: four and now.
[16:47] Speaker 3: You know, there were vague allegations from the Trump administration
[16:52] Speaker 3: about this ref's supposed association, but the administration never released
[16:58] Speaker 3: any evidence to support it's allegations.
[17:02] Speaker 4: Correct.
[17:02] Speaker 5: The problem is in the visa adjudication world, the only
[17:06] Speaker 5: decision maker is the State Department, so there's no federal
[17:10] Speaker 5: court lawsuit you can filed.
[17:12] Speaker 4: The Supreme Court has actually ruled on this twice.
[17:14] Speaker 5: In the last decade, where they've said there's really no
[17:17] Speaker 5: Supreme Court case you can file if the State Department
[17:21] Speaker 5: denies your visa. The people are trying to work through
[17:25] Speaker 5: some exceptions in different cases, but the point being just
[17:28] Speaker 5: for your listeners, it's very very very difficult, if not impossible,
[17:32] Speaker 5: to file a federal court lawsuit for a visa denial,
[17:35] Speaker 5: and especially when the visa denial is on issues like this,
[17:39] Speaker 5: where it's on terroristic grounds, then the problem is the
[17:43] Speaker 5: State Department really is betwixt and between, because yes, it's
[17:47] Speaker 5: possible that they're overdoing it and they shouldn't deny it.
[17:50] Speaker 5: But the problem is, what if they aren't overdoing it,
[17:53] Speaker 5: if they have to actually explain to you, the visa applicant,
[17:57] Speaker 5: here's how we know you're a terrorist, then the concern
[18:00] Speaker 5: is that that would make you have to release sources
[18:03] Speaker 5: and methods of getting information as the government, which you
[18:06] Speaker 5: wouldn't want to do to preserve the sanctity and the
[18:09] Speaker 5: safety of those sources and methods. And so from that standpoint,
[18:13] Speaker 5: everybody just has to assume that people are acting in
[18:16] Speaker 5: good faith. But because of the restrictions that have been
[18:20] Speaker 5: made in the last two years. Those presumptions of good
[18:23] Speaker 5: faith are less given by the rest of the world
[18:26] Speaker 5: when they hear those stories of denials, like the denial
[18:29] Speaker 5: of this referee.
[18:31] Speaker 3: Was there any player who was denied entry?
[18:35] Speaker 5: So interestingly there have been two players who have denied entry,
[18:38] Speaker 5: but they are both denied entry from Canada, which is
[18:41] Speaker 5: oddly enough, they haven't been denied entry from the United States.
[18:45] Speaker 4: The two that have been denied entry from Canada.
[18:47] Speaker 5: One is a player from Ghana who was arrested for rape,
[18:52] Speaker 5: but he hasn't been convicted yet. But when they asked
[18:55] Speaker 5: him in his application was he ever arrested? He put
[18:58] Speaker 5: know and so the Canadians did not allow him. And
[19:01] Speaker 5: he's a very popular player in terms of his his
[19:05] Speaker 5: high level and so this was significant harm for the
[19:08] Speaker 5: Ghanaian team. And now there's a player from the Ivory
[19:12] Speaker 5: Coast who is now implicated in a gambling scheme and
[19:17] Speaker 5: he's been denied entry into Canada.
[19:20] Speaker 4: So there's that.
[19:21] Speaker 3: Let's turn now from the World Cup to the Supreme Court.
[19:24] Speaker 3: So the Supreme Court is going to decide. They took
[19:27] Speaker 3: a case to decide whether immigrants with criminal histories can
[19:32] Speaker 3: be held for prolonged periods in federal custody without a
[19:36] Speaker 3: bond hearing. And this is because of a second Circuit decision.
[19:40] Speaker 4: Correct.
[19:41] Speaker 5: So this has been an issue that's actually been litigated
[19:44] Speaker 5: for the last twenty six years and we haven't been
[19:47] Speaker 5: able to get a solution to this.
[19:49] Speaker 4: Here's what's going on.
[19:50] Speaker 5: There's a statue called Title eight, Section twelve twenty six C,
[19:55] Speaker 5: but also known as two twenty six seed where what
[19:58] Speaker 5: happens is is if you have any kind of criminal
[20:03] Speaker 5: record and that's the reason the government is trying to
[20:06] Speaker 5: deport you. So the government is saying, you know, we're
[20:10] Speaker 5: not deporting you because you overstayed your visa, or we're
[20:13] Speaker 5: not deporting you because of some sort of technical violation.
[20:18] Speaker 5: This is because you were here legally and you committed
[20:22] Speaker 5: a crime and you were convicted of the crime in fact,
[20:25] Speaker 5: and so now we're trying to deport you for that reason.
[20:28] Speaker 5: There's a statute which says, if you just take the
[20:31] Speaker 5: literal interpretation of that statute, Hey, federal government, the second
[20:37] Speaker 5: you find this person who's a foreign national in America
[20:41] Speaker 5: with a criminal conviction, you a must detain them and
[20:45] Speaker 5: b you must keep them detained until such time as
[20:49] Speaker 5: you can effectuate their removal. And by the way, if
[20:52] Speaker 5: they happen to win their removal case, fine you can
[20:54] Speaker 5: release them then. But if they don't win their removal case,
[20:58] Speaker 5: you have to keep them detained for as long as
[21:00] Speaker 5: it takes in order to effectuate their removal. So there's
[21:06] Speaker 5: been two Supreme Court cases. One that was called the
[21:09] Speaker 5: More versus Kim, which was right in the beginning of
[21:11] Speaker 5: the millennium, and then another one called Rodriguez versus Jennings,
[21:16] Speaker 5: which was in during the first Trump administration, where courts
[21:19] Speaker 5: have tried to figure out what does that mean? Does
[21:22] Speaker 5: that really mean forever? What if the government wanted to
[21:25] Speaker 5: hold a person in sort of quote unquote removal process
[21:31] Speaker 5: but forever, just keep them in detention forever and not
[21:34] Speaker 5: actually decide their case.
[21:36] Speaker 4: Could the government get away with doing that? Could that
[21:39] Speaker 4: actually happen?
[21:40] Speaker 5: And so in the first case, the More versus Kim,
[21:43] Speaker 5: that happened at the beginning of the millennium, just as
[21:46] Speaker 5: Kennedy was the plurality fifth vote, and what he said was, look,
[21:51] Speaker 5: we don't have any evidence that this is going on.
[21:53] Speaker 5: Most of these cases take three months, which it turned
[21:56] Speaker 5: out was inaccurate, and the Department of Justice had to
[21:58] Speaker 5: take that back and it was both couple years, but
[22:01] Speaker 5: the Justice Department at that time said it was three months.
[22:04] Speaker 5: And so I said, most of these cases take three months.
[22:07] Speaker 5: And here's what he said, Here's what was the key.
[22:08] Speaker 5: He said, if there was ever a specific case where
[22:12] Speaker 5: things were taking too long, you should come back and
[22:16] Speaker 5: file a as applied challenge saying that you specifically have been
[22:21] Speaker 5: held too long, come back and figure this out. So
[22:24] Speaker 5: then what happened after that was the Ninth Circuit and
[22:27] Speaker 5: the Second Circuit said, well, that seems a little bit
[22:31] Speaker 5: crazy to force every single person to have to do
[22:34] Speaker 5: this in their case. So we're just going to put
[22:36] Speaker 5: a presumption that after six months your detention has been unreasonable.
[22:40] Speaker 5: The government has to decide your case in six months,
[22:43] Speaker 5: or if that then give you a bond hearing. That
[22:45] Speaker 5: doesn't mean release you. That means give you a bond
[22:48] Speaker 5: hearing to decide whether you are too dangerous to be
[22:52] Speaker 5: released or whether you're too much of a flight risk
[22:55] Speaker 5: to be released. And just to be clear, what is
[22:57] Speaker 5: a bond hearing. A bond hearing, even if you've been
[23:00] Speaker 5: charge for murder, you get a bond hearing, and a
[23:02] Speaker 5: lot of people who are charged for murder get bond
[23:05] Speaker 5: even where they actually are released pending the decision whether
[23:09] Speaker 5: to convict them or not. So the idea is, if
[23:12] Speaker 5: in a criminal case there are people suspected for murder
[23:16] Speaker 5: that get bond hearings and actually get bond, that how
[23:20] Speaker 5: in immigration, which is a civil case, could you just
[23:24] Speaker 5: categorically say there's a whole group of people that never
[23:27] Speaker 5: get a bond hearing, no matter how long they've been detained.
[23:30] Speaker 5: So that's why the Second Circuit of the nine second
[23:32] Speaker 5: Circuit said no, no, no, that should be six months.
[23:35] Speaker 5: The Supreme Court in twenty eighteen said absolutely not. Six
[23:38] Speaker 5: months is not what the statute says. Get out of
[23:41] Speaker 5: town with that, we meant what we said, if you
[23:44] Speaker 5: have a specific person who actually has been detained for
[23:49] Speaker 5: a long time, then that person can come back, But
[23:54] Speaker 5: not any six month presumption that that's too long. So
[23:59] Speaker 5: there have been some se cases the Second Circuit, the
[24:02] Speaker 5: Third Circuit, and the Eighth Circuit who are all trying
[24:05] Speaker 5: to figure out what does that unreasonably prolonged situation mean?
[24:11] Speaker 5: And the Second Circuit thought that a person who was
[24:15] Speaker 5: detained in total for seven months.
[24:17] Speaker 4: They said that was too long. This person deserves a
[24:20] Speaker 4: bond hearing, So they didn't.
[24:21] Speaker 5: Make a presumption everybody gets a bond hearing after seven months, but.
[24:26] Speaker 4: They said this person does.
[24:27] Speaker 5: The Third Circuit said, look, we're going to have a
[24:30] Speaker 5: different multi factor reasonable to this test. We're going to
[24:33] Speaker 5: try to figure out whose fault it is, because sometimes
[24:36] Speaker 5: if you put a time period, then the foreign national
[24:39] Speaker 5: can ask for continuances until such time as they can
[24:43] Speaker 5: get then.
[24:44] Speaker 4: This presumption of a bond hearing.
[24:46] Speaker 5: So they're saying, if that's what you're going to do,
[24:47] Speaker 5: we're not going to give you the thing, but we're
[24:50] Speaker 5: going to take into account how long, whose faults, how
[24:53] Speaker 5: close are we to the end, etc. And then you
[24:56] Speaker 5: could get a bond hearing if it's still taking too long.
[24:59] Speaker 5: The Eighth Circuit pose no time limit. They just said, hey,
[25:02] Speaker 5: the Supreme Court meant what it said, and if the
[25:06] Speaker 5: person detained twenty years and that's along their case takes,
[25:09] Speaker 5: then they can be detained for twenty years bid their
[25:12] Speaker 5: criminal That is what it is.
[25:14] Speaker 3: Okay, leon Hold, that thought coming up will continue this conversation.
[25:18] Speaker 3: Also why the Trump administration has set a goal of denaturalizations.
[25:24] Speaker 3: This is Bloomberg. I've been talking to immigration law expert
[25:28] Speaker 3: Leon Fresco of Holland and Knight. Leon tell us what
[25:31] Speaker 3: the Supreme Court is going to decide.
[25:33] Speaker 5: So, now the Supreme Court has to decide these two issues,
[25:38] Speaker 5: which is how long and what is the framework for
[25:42] Speaker 5: deciding if someone can actually happen as applied constitutional challenge
[25:49] Speaker 5: to their detention. And so that's what they're going to
[25:51] Speaker 5: have to decide and they'll be taking that case.
[25:54] Speaker 4: Later in this fall.
[25:55] Speaker 3: So I mean, would this affect a lot of people?
[25:58] Speaker 4: Yes, a lot of people are in the system.
[26:01] Speaker 5: Especially when you say we're going to prioritize the worst
[26:04] Speaker 5: of the worst people with criminal convictions for deportation, then
[26:08] Speaker 5: every one of those people, if you're prioritizing them, are
[26:11] Speaker 5: the ones going through the system. And the idea is
[26:13] Speaker 5: if one of those people with a criminal conviction is apprehended,
[26:17] Speaker 5: then at the moment the law is, they will not
[26:20] Speaker 5: be released until their case is finished.
[26:23] Speaker 4: And by the way, the Congress passed that law for
[26:24] Speaker 4: good reasons.
[26:25] Speaker 5: They were worried that people would either reoffend, meaning they'd
[26:29] Speaker 5: commit more crimes while they were out, or that they
[26:31] Speaker 5: would abscond and there are some statistics that show that
[26:35] Speaker 5: these absconsin rates and the reoffending rates are high. But
[26:40] Speaker 5: you know, nevertheless, the question is do you still get
[26:43] Speaker 5: a chance at least to make your case in terms
[26:46] Speaker 5: of a bond hearing or is the risk of reoffending
[26:50] Speaker 5: and also flight so high that we shouldn't get people
[26:54] Speaker 5: bond no matter what. And I think this no matter
[26:57] Speaker 5: what issue is what the Supreme Court is now going
[27:00] Speaker 5: to have to grapple with. Is there really no limit
[27:02] Speaker 5: to how long the government can keep someone detained without
[27:05] Speaker 5: deciding their case.
[27:07] Speaker 3: Why are they keeping them detained without deciding their case?
[27:10] Speaker 5: So there's a lot of reasons, but the main reason,
[27:13] Speaker 5: and this is kind of the most troubling one, would
[27:15] Speaker 5: be you go to immigration court and you lose your case,
[27:21] Speaker 5: you appeal it, and then you win your case, and
[27:23] Speaker 5: then the judge remands it back to the immigration court
[27:27] Speaker 5: for a new case. And by the time we've done that,
[27:29] Speaker 5: we're already two years into this thing. And so the
[27:32] Speaker 5: question is whose fault is that at that point? And
[27:36] Speaker 5: should the immigrants stay in detention during that or should
[27:41] Speaker 5: the immigrant get a chance for a bond hearing? And
[27:44] Speaker 5: that's really I think the main issue the Court's going
[27:46] Speaker 5: to have to grapple with is who gets the loss.
[27:49] Speaker 5: There is the loss the government's lass because they made
[27:53] Speaker 5: a mistake and the case got appealed and now there's
[27:55] Speaker 5: a new hearing.
[27:56] Speaker 4: Or is it.
[27:57] Speaker 5: You know, if you hadn't appealed your case, you could
[28:01] Speaker 5: have been deported a lot earlier and released from detention.
[28:04] Speaker 5: So if you want to stay and fight your case,
[28:05] Speaker 5: you have to know that you have to do it
[28:07] Speaker 5: from detension. Get over it kind of thing. And so
[28:10] Speaker 5: that's what the court is going to have to grapple
[28:12] Speaker 5: with here.
[28:13] Speaker 3: Something that continues to fascinate me is the Trump administration's
[28:19] Speaker 3: aggressive efforts to denaturalize people who are citizens. I think
[28:25] Speaker 3: CBS News first reported that the administration is planning to
[28:30] Speaker 3: expand the denaturalization push, aiming for two hundred and fifty
[28:34] Speaker 3: cases by the fall, and statistics are that the government
[28:38] Speaker 3: filed an average of just eleven denaturalization cases a year
[28:43] Speaker 3: between nineteen ninety and twenty seventeen. I mean, these cases
[28:48] Speaker 3: take a long time. Why is the government going through this?
[28:52] Speaker 3: Why are they targeting them?
[28:54] Speaker 5: There's two reasons. Reason Number one is they do want
[28:59] Speaker 5: to make everyone who's going through the system very aware
[29:04] Speaker 5: of the fact that, look, if you make any misrepresentation
[29:08] Speaker 5: while you're going through this system, you're never going to
[29:10] Speaker 5: be safe in America. There's always a chance you could
[29:13] Speaker 5: be denaturalized and deported, So make sure that you're giving
[29:18] Speaker 5: accurate information to the government through this entire time. And
[29:21] Speaker 5: then for people who have been naturalized, they also want
[29:25] Speaker 5: to sort of give a deterrent of Hey, if you
[29:28] Speaker 5: do anything bad even after you're naturalized, that makes us
[29:33] Speaker 5: think that you lied on your naturalization case, and we
[29:36] Speaker 5: can somehow then go back and try to you know,
[29:40] Speaker 5: the sort of theory of show me the person, I'll
[29:42] Speaker 5: show you the crime. We can go back and figure
[29:45] Speaker 5: out that you didn't tell us you were in the
[29:47] Speaker 5: Elks club, and now it turns out you were. But
[29:51] Speaker 5: that's not really why we're denaturalizing you. We're denaturalizing you
[29:54] Speaker 5: because of something else we didn't like about you. Then
[29:57] Speaker 5: the idea is to just sort of put that sort
[30:00] Speaker 5: of control on the entire foreign born population in the
[30:05] Speaker 5: United States to basically say, hey, mind your p's and q's,
[30:10] Speaker 5: get your act together, or you could be denaturalized and
[30:14] Speaker 5: look there's gonna be very few applications where everything was perfect,
[30:18] Speaker 5: and then a lot of the adjudications are gonna have
[30:21] Speaker 5: to be by these federal judges deciding whether either the
[30:24] Speaker 5: omission or the error or the misstatement was material such
[30:29] Speaker 5: that a different decision would have been necessary had the
[30:33] Speaker 5: missing or incorrect or erroneous or actually false statement had
[30:39] Speaker 5: been made as part of the immigration process.
[30:42] Speaker 3: I mean, there haven't been that many cases, I take it,
[30:44] Speaker 3: but our judge is generally reluctant, and it's sort of
[30:47] Speaker 3: a high bar for the government to denaturalize someone.
[30:52] Speaker 5: So in my experience, so this was before I left
[30:55] Speaker 5: the private practice, these cases were a slam dunk because
[30:59] Speaker 5: the federal judges were always saying, well, there's so few
[31:02] Speaker 5: of them. If the government really went through all this
[31:05] Speaker 5: trouble to put this case together, I should be taking
[31:09] Speaker 5: this very seriously. And most of these cases used to
[31:11] Speaker 5: be for Nazi war criminals and other sort of the
[31:16] Speaker 5: kinds of people that ends the international would hate because
[31:19] Speaker 5: they terrorized an entire village or something like that. That's
[31:23] Speaker 5: what this used to be for, basically, was for all
[31:25] Speaker 5: these human rights violators. But now if it starts getting
[31:30] Speaker 5: extended out to populations where the person isn't so notorious
[31:36] Speaker 5: or has it done such bleak things. Then these federal judges,
[31:40] Speaker 5: I assume, are going to fall along the ideological lines,
[31:44] Speaker 5: and some are going to say, hey, none of these
[31:46] Speaker 5: are material, so I'm not going to grant them, and
[31:49] Speaker 5: others will say, oh, well whatever if if this administration
[31:52] Speaker 5: doesn't like them, I don't like them. And unfortunately, that's
[31:55] Speaker 5: how a lot of this is happening, and so I
[31:57] Speaker 5: can foresee a lot of that happen. Sure there will
[32:00] Speaker 5: be judges in the middle who will scrutinize and do
[32:03] Speaker 5: a very serious analysis and decide just on the facts.
[32:09] Speaker 5: But I've seen some judges who will just say, look,
[32:12] Speaker 5: I'm not finding that material disrepresentation. Sorry, this is all
[32:16] Speaker 5: ideologically driven. I'm not going to reward it. And others
[32:19] Speaker 5: will say, hey, I trust this administration, and if they
[32:22] Speaker 5: don't want someone here, I'm not going to really look
[32:25] Speaker 5: behind the reason I'm concerned if they're concerned, And so
[32:28] Speaker 5: I think there will be a lot of.
[32:30] Speaker 3: That that goes on, and we don't know yet who
[32:32] Speaker 3: they're targeting.
[32:34] Speaker 5: Well, they say they're targeting only people who lied about
[32:37] Speaker 5: criminal convictions and national security risks. So to that extent,
[32:43] Speaker 5: you know, I would be fine with that too, but
[32:45] Speaker 5: you know, we're gonna.
[32:46] Speaker 4: Have to see case by case how that plays out.
[32:48] Speaker 3: I know we hear national security risks so many times
[32:51] Speaker 3: from the Trump administration in so many different settings that
[32:54] Speaker 3: it's hard to know. Before I let you go, let's
[32:57] Speaker 3: do an update on the Milwaukee County Circuit Court judge
[33:01] Speaker 3: Hannah Dugan, who was convicted of obstruction of justice.
[33:06] Speaker 5: Basically, what happened was she was a judge in just
[33:09] Speaker 5: a local criminal court and she was worried that this
[33:12] Speaker 5: local criminal defendant was going to be arrested by ICE
[33:15] Speaker 5: after having a hearing in her court. And she felt like, look,
[33:19] Speaker 5: if ICE is going to be in our court house,
[33:20] Speaker 5: then people are going to show up to my hearings.
[33:23] Speaker 5: So I have to protect people so that they come
[33:25] Speaker 5: to my hearings. So she told one of the foreign nationals, hey,
[33:28] Speaker 5: go out this other door where the jury goes out,
[33:30] Speaker 5: and then you won't be able to get caught by ICE.
[33:34] Speaker 5: And then I still catches the person anyway, but they say, hey,
[33:37] Speaker 5: this judge was trying to obstruct a proceeding by making
[33:41] Speaker 5: it harder for us to catch this person.
[33:43] Speaker 4: And this judge was convicted. The judge was not acquitted here.
[33:47] Speaker 5: So then the judge filed a motion for acquittal, trying
[33:50] Speaker 5: to rely on a Fourth Circuit decision which talked about
[33:54] Speaker 5: whether a preceding is a pending preceding or not for
[33:58] Speaker 5: the purposes of deciding what is obstruction or not. And
[34:01] Speaker 5: so the judge was trying to argue, look, I wasn't
[34:03] Speaker 5: obstructing any proceeding because there wasn't actually a pending removal
[34:08] Speaker 5: proceeding going on. Only if there was a pending removal
[34:12] Speaker 5: proceeding going on, should I have been convicted. But if
[34:15] Speaker 5: there wasn't one, that would be it. But at the
[34:18] Speaker 5: end of the day, the federal judge here said, I'm sorry,
[34:22] Speaker 5: I don't agree with the fact that this thing needed
[34:26] Speaker 5: to actually have a pending removal proceeding. That's being obstructed here.
[34:32] Speaker 5: If you're obstructing what a pure law enforcement agency is
[34:36] Speaker 5: doing in terms of issuing its own warrants and removal
[34:39] Speaker 5: without court proceedings that it can issue these things, then
[34:43] Speaker 5: you could obstruct that. And so you've obstructed it. And
[34:46] Speaker 5: so at the moment the conviction has been upheld, and
[34:51] Speaker 5: so she's going to try to appeal to the Seventh
[34:53] Speaker 5: Circuit now to try to again figure out what is
[34:56] Speaker 5: a proceeding such that did she obstruct the nature of
[35:01] Speaker 5: that preceding or not?
[35:02] Speaker 4: So did you actually have to know.
[35:04] Speaker 5: This person was in a removal process in order to
[35:07] Speaker 5: obstruct it? Or could she just be convicted for obstructing
[35:12] Speaker 5: ice as efforts to put the foreign national in the
[35:15] Speaker 5: preceding so to speak.
[35:17] Speaker 3: So it becomes a technical kind of issue. But I
[35:20] Speaker 3: haven't heard of another judge doing anything similar, so maybe
[35:23] Speaker 3: this is having a deterrent effect on judges. Always a pleasure, Leon,
[35:29] Speaker 3: thanks so much. That's immigration law expert Leon Fresco, a
[35:33] Speaker 3: partner at Hollanda Knight. And that's it for this edition
[35:36] Speaker 3: of The Bloomberg Law Show. Remember you can always get
[35:39] Speaker 3: the latest legal news on our Bloomberg Law Podcast. You
[35:42] Speaker 3: can find them on Apple Podcasts, Spotify, and at www
[35:46] Speaker 3: dot Bloomberg dot com, Slash podcast Slash Law, and remember
[35:50] Speaker 3: to tune into The Bloomberg Law Show every weeknight at
[35:53] Speaker 3: ten pm Wall Street Time. I'm June Grosso, and you're
[35:57] Speaker 3: listening to Bloomberg

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