Dave Aronberg, Palm Beach County State Attorney, discusses the acquittal of Daniel Penny in the subway chokehold trial and the extradition of Luigi Mangione. Leon Fresco, a partner at Holland & Knight discusses the Supreme Court’s decision in a case involving sham marriages. June Grasso hosts.
This is Bloomberg Law with June Brusso from Bloomberg Radio.
Both applause and anger erupted in a Manhattan courtroom this week when a jury announced its verdict of not guilty in the trial of Daniel Penny for the chocold death of Jordan Neely on a Manhattan subway in twenty twenty three. It was a reflection of how the case divided New Yorkers over issues of race, homelessness, and mental illness in a city where millions ride the subway every day. During the month long trial, prosecutors said the former marine went too far after Neelie had an outburst that frightened writers, but Penny's lawyers argued that he put his own safety on the line to protect other passengers from a threatening man. The trial may be over, but the legal ramifications are not joining me, is Dave Ahrenberg, Palm Beach County State Attorney Dave. Over the four days of deliberations, the jury asked to rewatch the bystander videos of Penny restraining Neely, the officer's bodycam videos, and video of Penny's interview with police detectives. They also wanted to rehear the medical examiner's testimony about issuing a death certificate before Neale's full toxicology reports came in, and they asked the judge to read back the definitions of criminal negligence and recklessness. Can you tell from those requests what they were likely hung up on.
It's really the overall narrative, and it was never a question whether Penny sought out to kill the victim in this case, Jordan Neely. It was whether he acted recklessly, whether he went too far, And even with the lesser charge of negligent homicide, you only need to act carelessly. So they really wanted to know if this guy just went too far, and they wanted to hear from bystanders and want to see video. And by all appearances, it looked like Daniel Penny was a good samaritan, would step up to try to help people, and he was there to hold Jordan Neely down in that choke hold. It depends how you define it. Until the threat abated, and was it too long? That was the question for the jury, and the jury ultimately said, if it's too long or not, we can't make a clear delineation beyond a reasonable doubt, And so therefore not guilty.
On Friday, the jury came back twice and told the judge they were deadlocked on the manslaughter charge, which is the top charge, and then the prosecutors made a motion to drop the manslaughter charge, and the judge allowed that and told the jurors that they were going to go back and deliberate the lesser charge of criminally negligent homicide. Vents had asked for a mistrial. The defense attorney said doing this could unfairly sway the jury and potentially encourage a compromise verdict. Shouldn't the judge have declared a mistrial after the jury said they were deadlocked.
No, because it is the prerogative of prosecutors to seek a verdict on the lesser counts, And just because you can't come up with a verdict on the biggest count manslaughter in this case, doesn't mean that you can't look to door B. Because prosecutors wanted any type of conviction in this case, and quite frankly, I think this case probably should not have been brought because I think going into it, prosecutors had to know it was very unlikely that they would get a conviction beyond a reasonable doubt. After all, jurors take the subway too, and all of us have had experiences with someone with untreated mental illness scaring people on the subway. So I thought this was an uphill battle. But I do say that the prosecutors should have been able to seek a verdict on the lesser charge, and they were.
So the prosecution makes a strategic decision about what charges to bring, so here they also brought the lesser included charge. So when their strategy backfires and the jury can't come to a decision on the top charge, why should the prosecution be allowed to say, Okay, forget the top charge, we're just going to go with the lower charge.
Now, Well, the defense has all the advantages. For example, if they wanted to take an appeal, they can after the verdict is done. The prosecutors cannot appeal. Now, once the person's acquitted, that's it for the prosecutors. So the prosecutors have the entire burden of proof. They've got to prove everything beyond a reasonable doubt. The defense doesn't have to prove anything, and if it goes the wrong way for prosecutors, they're out of luck. Whereas the defense can appeal and appeal and appeal, so the system actually favors defendants. One of the few advantages that a prosecutor has is that they decide on the charges and they can decide whether to ask for a lesser and clue charges. And that's what they did here.
So here's one of the many things that surprised me. The jury deliberates for four days on the manslaughter charge, the top charge, and there's one or more holdouts, they can't reach a decision. They go back to deliberate on the lesser charge of criminally negligent homicide, and in an hour they come back with a verdict of not guilty. So they were stuck on the top charge, but they're not stuck on the lower charge. It sort of doesn't compute to.
Me, June, you hit the nail on the head. This was the biggest head scratcher because they took a while hand ringing over the largest charge, the most difficult charge, the manslaughter charge, and after there were holdouts and they couldn't come to a verdict, you would think that they would then deliberate justice extensively with just as many holdouts on the lesser charge. I mean, lesser charge is much easier to convict Penny on. But yet they quitted him on that one very quickly, And I think the reason is durre fatigue during fatigue is a real thing. They have the weekend to think about it. They came back and they hold out the ones who could not equit. Daniel Penny on the biggest charge, manslaughter, decided it wasn't worth a fight anymore and let's just let him go.
I understand that one of the jurors, when the judge said you're going to go home for the weekend and come back on Monday and consider the lesser charge, was shaking his head back and forth. I mean, what chery wants to come back after a weekend. That's why you have so many Friday verdicts. What do you think was the strongest part of the defense. They argued that the medical examiner's report was wrong, that the choke hold didn't cause Neely's death. Do you think it was those arguments or was it the fact that you have this guy who started out with good intentions. Even the prosecutor admitted that, and right things got away from him.
Even the prosecution said that Daniel Penny acted with the right mindset. He was acting in self defense. This was not a murder case. This is a case at some point when perhaps Jordan Neely stopped breathing, although that was a big bone of contention when that happened, or perhaps when the subway cars opened at the station, that Daniel Penny had an obligation to release the choke hold and that's where he crossed the line. But see, that's like a very difficult question for jurors, is to make that distinction between heroism and being a killer. And so it's tough for jurors beyond a reasonable doubt to find that delineation. And I think that's why this case was always going to be an uphill battle for prosecutors, because no one doubt that Journey was threatening people on the train, scared people, even the witnesses for the prosecution that, yeah, we were scared by him. The question is at what point do you cross the line and go too far? And to ask a jury to find beyond a easonable doubt that someone went too far, it's so hard when they probably have taken the subways, when they have been scared themselves, and when they probably wish at some point in their life that a Daniel Penny had stood up to protect them.
The police interviewed Penny and let him go, and there was a lot of pressure on the DA from community members and from even some lawmakers to charge him. You think this is a case that shouldn't have been brought. So do you think the DA just gave in to the pressure.
Well, he still had to take it to the grand jury. So although it is the DA's decision to pursue it, you still could go through a grand jury. And yes there was community pressure, But I do think that the DA did have a legitimate case. I mean, the subway doors opened, Jordan Neely didn't appear to be breathing, the threat had subsided. With that said, as a prosecutor, I'm not sure I would have brought this case because you have to have a good faith believe that you can get a conviction beyond a reasonable doubt. And as I said, if those jurors had taken the subway like all or most of them probably have, there's no way you were going to get a conviction beyond a reasonable doubt for manslaughter. Maybe for the lesser crime, but then is it worth crosskinging the case for criminally negligent homicide, even that would be an uphill climb. So these are the calculations the prosecutor has to make. So was there enough evidence to convict Daniel Penny? Sure, but it was never going to happen on manslaughter and unlikely on the lesser charge. So because of that, as a prosecutor, you probably shouldn't bring the case.
There have been demonstrations throughout the trial on both sides. Some people are looking at this and saying race was a factor. Others are saying frustration with the failure to address homelessness and mental illness. Do you think any of that played in or was the jury just looking at what happened?
Oh?
No, the jury is just looking at the evidence in front of them, and the larger issues are not supposed to come into play. But you know, you can't take away from each jurors own lived experience. And this whole thing was a tragedy all around the fact that Jordan Neely had a lifetime of mental illness and it was largely untreated, even though there were opportunities for him to get treatment, and sometimes he did, and you know, his family expressed frustration, but his father apparently was not in his life, and it just is a tragedy all around. No one wants to someone's end this way. At the same time, you know, when you take the subway, there's just not enough law enforcement on the cars, and so you have people with untreated mental illness causing a stir and threatening people and making people scared. And then what happens, Well, if you have a good samaritan who steps up and does something about it, that person should normally be heralded as a hero. But in this case, it looks like he did go too far. He kept that hole too far. But could a jury make that delineation? At what point did he go too far? Can you prove beyond a reasonable doubt? Then instead of being a hero, he turned into a criminal. That's why this case was always an uphill battle for prosecutors. That's why I think it probably should not have been brought.
Neelie's father filed a civil lawsuit against Penny, alledging that Penny committed assault and battery against Neelie and accusing him of causing his son's death through negligence, carelessness, and recklessness. I mean, the standard in a civil trial is much lower.
Well, it's a much easier case than civil court because the civil standard is not beyond a reasonable doubt, it's by a preponderance of the evidence. Is it more likely than not that this occurred? And so yes, it is a much better case against Daniel Penny civilly than criminally. I'm not surprised that it has brought. It is one way for the family of Jordan Neely to obtain a measure of justice in their eyes. I don't know which way it will go, but definitely is a better chance. Now, if Daniel Penny had been convicted, then that lawsuit would have been much much easier, because once you've been proven beyond a reasonable doubt of acting carelessly or rec lessly, then that comes into play in the civil court and you're almost certain of winning a civil judgment.
I don't want to seem insensitive, but there's always the question of damages in a civil trial because Neely was homeless, so it doesn't seem like there are any economic damages. And if his father wasn't in his life, will it be difficult to prove non economic damages.
It is not being callous, You're being realistic because you have to prove damages and if you're not in someone's life, and if someone was homeless, that is going to be a consideration if you do win the civil case. So the question of damages would come after the question of whether Daniel Penny acted negligently, whether he violated civil rules of court rules, But then you'd go to the question of what are the damages, And that's why I think that they may not be able to recover much, if anything at all.
The defense says that they're considering a malicious prosecution lawsuit against the DA and others behind the charges, saying the medical examiner colluded with the DA's office. They said the district attorney needed the medical examiner to act quickly, and he did just that. It was like they wanted to try and get him on something. How difficult are malicious prosecution cases?
Oh? Those are very hard.
I mean you really have to prove some bad faith and that hardly ever works in this case. If the DA was motivated by political pressure, that's still not malicious prosecution. As long as you have the evidence. And as I said, there was enough evidence here at least to file the charge, at least to seek an indictment. And yes, you could have been convicted of one of these charges, maybe just a lesser charge based on the evidence, But because of the lived experiences of the jurors, I thought that that would never happen. And so, you know, both sides can be right about this. The defense can be right that this case should never have been brought. At the same time, the prosecution can be right that there was enough evidence to bring the case. Both sides can be true on this one. Now, this was a sign of the time. This case reflected a larger split amongst the public about issues of crime and race, and homelessness and mental illness. And in the end, because there was such a split, because there was such a controversy, you were never going to get a unanimous jury, a twelve percent jury to decide beyond a reasonable doubt that Daniel Penny committed manslaughter. Maybe a lesser crime, possibly, but even that was too high of a burden for this jury.
Dave, I want to ask you a few questions about this case that has been in the headlines. Luiji Mangioni has been arrested for the fatal shooting of a healthcare executive in New York City. He was arrested in Pennsylvania and he's fighting extradition. Why is he fighting extradition to New York. It's going to happen, isn't it.
It's inevitable. They're just forestalling the obvious. And there have been a lot of theories out there. Maybe one reason is he wants to avoid Riker's prison as long as possible, but he's going to get there. Or perhaps they want to worse prosecutors to give up extra evidence that they wouldn't be entitled to otherwise at a hearing in Pennsylvania. But really, extradition hearings are so easy. The only main argument is is this the guy who is described? And the problem cause after David, do you have the right person is? Or is it mistaken identity? Well it's clearly not mistaken identity. So this is going to happen. He's going to be extradited. They're just delaying the inevitable.
There seems to be a lot of evidence against him already. They reportedly have ballistics from the gun he was carrying, that Matt shellcasing's found at the scene. They have his manifesto, which speaks to his motive. It's early, but do you see any defenses here?
I think the only real defense would be that Mangioni acted with such in a severe emotional disturbance that he was so upset about the way the insurance companies treated him and his family that this could be a manslaughter case and not a murder case. Now I would disagree with that. I think this is clear murder. I think it should be premeditated. But that, to me, will be the best offense to try to get a conviction on a lesser count that will allow them to get out of prison one day. Now, as far as another potential defense, there's what you call jury nullification. Jury nullification is when the jurors drew the evidence and see the law and disregard it. Instead of doing what they're told by the prosecution and the judge, they go their own way because they have sympathy for the defendant. They're not supposed to do it, but it happens. It's a prosecutor's worst nightmare. That is a possibility in a case like this, where there's so many emotions about it and so many hard feelings and frustrations towards the insurance industry.
If the jury is anything like the Internet, it seems like jury nullification is a possibility. Because there has been support from Angioni on social media.
And as a prosecutor, it's disappointing, and it shows you this is an age we're living it in the age of impunity, where you can say what you want, you can do what you want, and nothing sticks to you. You can get elected to what you want no matter what path. You can be appointed to what you want, no matter what you've done. And you know, it's a reflection or where we are, where people are treating this guy as a hero when it's not a very courageous thing to put on a mask, lie in wait for an unarmed man and then shoot him in the back and then run away. And then when he's caught, he is quiet and then starts shaking. Not exactly captain courage. So he's not someone who should be raised up and lionized. He's someone who is a murderer and should spend the rest of his life in prison.
So he's great to get the prosecutor's perspective, Dave, thanks so much. That's pom Beach County State Attorney Dave Arenberg.
I'll put you each in a room and I'll ask you every little question. They're a real couple would know about each other. Step two. I dig deeper. I look at your phone records. I talk to your neighbors, I interview your coworkers. If your answers don't match up at every point, you will be deported indefinitely, and you, young man, will have committed a felony punishable by a fine of two hundred and fifty thousand dollars in a stay of five years in federal president.
The Proposal is just one of many rom coms where someone threatened with deportation enters into a sham marriage for the US citizen. The movies usually have happy endings, but a real life case before the Supreme Court doesn't seem to be headed in that direction. The Justice is ruled unanimously that federal courts can't second guess the government revoking a visa due to a sham marriage. That's left to the discretion of the Department of Homeland Security. Joining me is an expert in immigration law, and in this movie The Proposal, Leon Fresco a partner at Holland and Knight. So Leon tell us about the couple in this.
Case, so the situation is actually pretty straightforward. There was a US citizen the US citizen applied for a visa for the spouse to be able to get law permanent residents in the United States. The first part of the process, because there's two parts, one is is the marriage valid? And then the second is is everything fine in the background check? The first part is the marriage valid, that's what's called the visa petition that was approved. And so they thought, okay, we're all said, now we're on to the second part, the background check. Everything's going to be good. And then during the background check process, they said, you know what, We're going to revoke the initial approval because we didn't realize at the time that the foreign husband who they were trying to get the green card for had actually been involved in a sham marriage where supposedly the person in that marriage said that this guy had paid five thousand dollars to try to get a green card. And I don't know why USCIS didn't know it initially, but they figured it out the second time around, and so they revoked the petition. They then took an administrative appeal. They lost in the administrative appeal, so they tried to file a federal court case, and the issue in the federal court case was, is this decision to revoke the initial approval something that you can actually review in the federal court.
So there are mandatory and discretionary decisions, and discretionary decisions can't be reviewed by a court.
Right, So the way the Immigration Code works, there's a lot of things that the government is very concerned that if you start giving judicial review for there will be thousands, if not hundreds of thousands of federal court cases. So what they do is the Congress writes laws that say, here's what we're going to do. We are gonna say that in certain situations, the agencies that deal with immigrants will get the final word, meaning sometimes they can be nice, sometimes they can be mean, but whatever they decide, they will get the final word because there's no way we can possibly allow thousands of not hundreds of thousands of cases to challenge these agencies and what they're saying. There's other times that the statute say, if you make a decision, you can get review. And so the question is does a particular statute in any given instance give the final discretionary word to the agency so that you can't review it, or if the decision is one that has to be made yes or no, and there's no discretion. You can't. You either have to decide, for instance, is the person qualified under the visa to do the it work, And so that's either a yes or no. And if you say yes, that's fineman. You say no, you can get review of that. I am qualified. I know they said that I'm not, but I am. That's the kind of thing where review is available. But if the Congress says no, this is a discretionary decision, we want it to be decided by the agency, and they can either be nice or mean, but it's up to them. Then they're the last You cannot go to federal court. So the question is what is this statute Where the statute says that if you have a reason by sham marriage, that they can revoke the approval for good and sufficient cause, so it doesn't say that they have to. Then that's the key. The statue says, if you come across a sham marriage in any part of this process, you can revoke it for good and sufficient cause. But because it says you can revoke and it doesn't say you have to revoke, then the Supreme Court said, hey, that's again a discretionary decision that either the agency can decide to let it slide even if there was a sham marriage, or they can decide to revoke the petition. But in either case that's a discretionary decision because it doesn't say you shall revoke. It says you can revoke if you see that there was a sham marriage involved. And so because of that, they say that that's then not a decision that the federal courts can review. And that was a nothing, rare, nine nothing Supreme Court decision that was actually written by Justice Jackson, who's considered probably to be the most of the compassionate judges toward immigrants on the court. Even she said that this is the kind of discretionary decision that is not reviewable in this situation.
I thought that sham marriages barred people from remaining in the country legally, that if they found a sham marriage, you were out.
So interestingly, here's how that worked. If you apply on step one, so you say I'm a US citizen, I want to marry a foreign nationalist, you're in step one of the process. If USCIS encounters there that there was a sham marriage in any part of this process, either the US citizen had been in a sham marriage in the past, or the foreign national had been in a shen marriage in the past, they must deny that petition, and that petition therefore can be reviewed in federal courts. But this is not how that happened. This was after the fact USCIS find out that there was an error, do you have to revoke it? And what they said was nobody says in this statute that you have to revoke it. You could just let it slide. Now there's evidence in this case, and Justice Jackson cites to it that says, well, USCIS never lets it slide. They never are nice to people in this situation. They always revoke every single case where they see that there was a sham marriage involved. But what Justice Jackson says is who cares. That doesn't matter what they actually do. What matters is whether the legislature gives them the discretion to overlook it or not. And because it does, the language of the statutes give the discretion to the immigration agency to overlook a sham marriage if it is found after the fact after an approval, not beforehand. But if it is found after the fact, then that's considered a discretionary decision, and so the decision to revoke, which is discretionary, then cannot be reviewed. But this does lead to sort of perverse situations. One would be what if the government was not comfortable with the decision to deny upfront, because maybe the marriage was a little bit shammy but not super shammy, So they would be worried that if they denied it upfront there would be federal court reviews. They could just revoke it after approval and then it wouldn't be reviewable and that would be the end of it. The reason they don't end up caring in this context. Now, there will be other contexts where this ends up mattering, but the court basically said, well, be a of those on another case. In this marriage context, this doesn't bother us because you can always just apply again, and if they deny you, now that they know about this Shen marriage, you can get the federal court review you were worried about. And in fact, the plaintiff in this case is literally in the middle of this, So it just seemed like a why are you complaining case at the end of the day, since you actually can get the federal court review that you want by simply putting in a brand new application, and there's no bar in this instance to putting in a brand new application. So that's why I think you end up getting the nine zero decision is because in the end, yes, this will close out a way that theoretically could have been available for a revocation of a marriage case. But in the end, what it makes clear is that if you are in this exact situation where your marriage was approved for immigration green card purposes, but now it's been revoked on step two when you're going through the background check process, that all you have to do is file step one again and they'll have to deny it because now they know about the sham marriage, and since they have to deny it, that's what you'll be able to get the review of that denial.
Practically, it seems ridiculous just adding steps to the process. So if you step back and look at what's going to happen, did the couple actually win the case? Because now the woman can start the application over, it will be denied because it's a sham marriage, but then she'll be able to appeal to a federal court to review that denial.
So at least the court did make clear that she can do all of that, but she didn't win the case from the standpoint of the relief she actually wanted, which was to immediately be able to get a decision right now as to whether that was really a sham marriage. So she can't get and she has to restart the process, like you've said, and so it's a non ultimate loss, but it's a loss in this forum, in these proceedings. For what she wanted.
Is that what Justice Jackson meant when she said Congress created room for mercy in the process.
Well, she met mercy in two ways here. The mercy that she really meant was that the agency, if they wanted to overlook the sham marriage, they theoretically could have overlooked the sham marriage. So that's the real mercy that she meant, and that's why she said it was discretionary and why it wasn't in the end a reviewable decision, because in the end, the agency has the discretion to grant mercy. But she also meant that there is this second out year in this particular fact pattern, which is why the case is limited to this particular fact pattern for now, which is the marriage issue. Where in marriage issue you can go in and you can actually restart and do a new application and then get the federal court review that you want.
Leon. I mean, when the federal court reviews it, they're going to see there was a sham marriage, correct, So the judge will rule against the couple. So what's the point here? Is it just to delay the inevitable?
So sometimes the hope is this that occasionally what will happen is so you'll have the uscis the Immigration Service, We'll say that there was a sham marriage, and then you'll have an administrative appeal, but it goes to people who are generally inclined to be deferential to the agency, and so they'll say it was a sham marriage. But you hope you can get a federal court judge who maybe looks a little bit more askance at the government that says, you know, what, why are you viewing things in such a skeptical, cynical light. You know, I know there was five thousand dollars exchange, but that was for love or something, you know, who knows. And so you get one of these judges who baby doesn't really trust the government so much, and maybe you could get a decision that's better than you could have ever hoped for, and so that's what they're looking for, is that kind of hail mayor is here in this situation.
Since Homeland Securities decision is the final word in this area, Now, does that strengthen executive power over immigration?
Well, in this instance, they didn't say in this case that, for instance, if unemployment green card petition is granted, that there's not any federal court review over a revocation because they're what what happened is you couldn't just refile an application because if there's a revocation, what usually happens is you're now in illegal status and in an employment green card if application, you have to be in legal status the whole time or you can't get a green card. So there it would be a huge problem. But in the marriage context, you can fall into illegal status, it's not a problem. The marriage fixes it. So that's why it's not a problem in this marriage context. But in the employment green card context, the government could totally harm someone's life permanently if they were to do the cynical acts of approving unemployment green card and then revoking it. And so that would be a very interesting case to see what happens there because there there isn't a solution of refiling available because when you filed, you were in legal status. But what always happens is then later after you file, whatever status you were in always expires. And what you're doing is you're waiting for the green card to be approved, and that's what preserves your status. But if it's refused, you don't have a status anymore at that point. And so those are the cases that are going to be very interesting to watch. It's inevitable that that case is going to come to the court now at some point.
I'm curious because there are lots of movies about, you know, sham marriages for Green Corp purposes? Are there actually a lot of sham marriages?
So here's what's very interesting is what is a marriage? And the famous judge Posner has a decision that really goes into this, which is, you know, talk about movies. One of my favorite ones of this variety is the one with Ryan Reynolds and Sandra Bullock.
Uh huh yes, called the.
Proposal Yes, where he says at the end, I want to marry you so that I can date you. And the question is would that be a legitimate purpose for an immigration marriage? Because in the end, you are still professing some sort of love there. And so what Judge Poster said is, here's what I'm concerned about. This is not exactly the law, but I find the very persuasive, and I keep trying to convince the agencies that this is the real issue, and they're almost there, is this did money change hands? Because if money changed hands, that's a sham marriage. But any other kind of marriage, you know, I go to Harvard and my wife goes to Stanford. We love each other, but we don't live together. Non immigration marriages that are just like that, and so that's where it gets super complicated. And so the issue is, I think did money change hands? And that really is the main thing they look for, But they also do look are you living together? And if not, why are you not living together? And you know, is their constant communication, is their joint assets, all of these things and those areas sometimes are not conventional in certain marriages, but they still want to try to enforce those conventions on these immigration marriages.
Let's turn out to a judge in North Dakota ruling that nineteen Republican led states don't have to provide health insurance coverage to DONCA recipients.
Nineteen states sued the federal government saying that we did not like a rule that was promulgated in May of twenty twenty four which said for the first time that people who had DACA and DACA remember was done in twenty twelve, so this was a rule that didn't happen for twelve years, were now to be considered lawfully present in the United States for the purposes of deciding whether they could access the Obamacare healthcare system. And so for the first twelve years of DACA, the people on DACA were not considered lawfully present. But now there was a rule saying they have to be considered lawfully present, and the states were saying, well, we don't want these DACA people to be added to our exchanges because now this is going to cost administration costs and fees and everything else. What's fascinating is that North Dakota, which is where the venue of the court is. North Dakota ended up having a very flimsy standing argument, which is the court for whatever reason, accepted I don't necessarily agree with it, which is that people will remain in America if they have access to this healthcare that they wouldn't otherwise have remained, and hence they'll remain in North Dakota, and North Dakota shouldn't have to tolerate that. And the point is, I don't know of anyone on DHAKA who's not staying or staying based on the healthcare issue. What really matters to them is the status and the work permit. The healthcare is an extra thing which they're very happy to have, but it isn't the reason they're saying or not saying. And so I do wonder when that case ultimately gets to further review in the circuit court, if that standing decision is actually going to prevail there. But then once the court found standing, the court then held that because for the first twelve years, nobody thought that these folks were lawfully present in the United States, and Congress never wrote the words DACA as a status, you couldn't use DACA as a status to call them lawfully present in the United States. So that part of the decision was more straightforward.
Do you think that an administration can reclassify people as legally present in the US.
So here's this interesting. The Obamacare language left it blank. So there's other public benefits that define which immigrants can get which status is so, for instance, food stamps and housing benefits and other things actually have a list. And the court actually says, which I think cuts both ways, Well, doca's not on any of these lists, so how can we have it for the Obamacare list? But what's interesting is, well, why didn't Obamacare have a list? Maybe they did want to give that discretion to the agencies in order to decide what were the statuses? So fair enough, you know, I think that argument could cut either way. The fact that Care didn't actually have a list of statuses could I think fifty to fifty goal to the federal government argument or to what the states are saying. But I do think where the problem is is if Congress is saying you have to be lawfully present, and Congress never wrote anywhere in any statute ever in the history of mankind that there's a status called DOCA, Well what do you do with that? Do you allow an agency to be able to invent a status in order to be able to give healthcare to people? And that I do think becomes a tougher argument. Now, having said all of this, I think the Trump administration would easily have written a regulation soon enough rescinding this, so it wouldn't have been necessary to have this decision. But as long as this injunction is in place, they won't have to write that decision. And then, sort of much later down the roads, we're talking June twenty twenty six, most likely we'll probably see a decision by the Supreme Court revoking the entire DACA exercise as unlawful. And then at that point this would obviously go away as well, because there wouldn't even be DOCA at all, And then we'd have a congressional fight. What gets done as the fate for these people who've had DOCA previously.
Do you think the Supreme Court would actually, because doca's been before the Supreme Court before, you think that the Supreme Court will say DOCA is unconstitutional?
So two parts.
First, the Court has never actually answered the question is DACA legal or not, which is fascinating. All the courts have done so far as to say whether the revocation of DOCA actually followed the Administrative Procedure Act, to which Justice Roberts said no. But also, here's the very interesting part.
The votes are.
Now different, so that even if you lost Justice Roberts. You could still get a fight for decision revoking DOCA that would have Gorsicch and Cony, Barrett and and Thomas and Alito. And so there is a much larger chance than in that previous decision that you could actually get a ruling that says DACA is illegal.
I believe that Trump said he was willing to work with Democrats to help DACA people.
Right, It's very likely that the way this would get teed up is as follows. You would have maybe one year all of twenty twenty five and half of twenty twenty six, where you've shown significant enforcements, to which then the president could feel like he's gotten enough of a credibility, that he's created enough enforcement that when this decision inevitably comes out in June of twenty twenty six saying that DACA is not legal, then he could say, Okay, well, now we can actually have a negotiation as to the parts of our immigration system that need to be fixed, because the public now has confidence that we have our border under control and that if you come here unlawfully, you'll be deported. But we'll have to see how that all plays out. I don't know, and that may even be an optimistic view, but that's the only way anything like this would happen. Then that the Congress rarely acts unless there's an emergency, So the emergency would have to be created, and what is that emergency. The emergency would be the Supreme Court resfinding Zaka program.
Thanks so much for being on the show. Leon, that's Leon Fresco of Holland and Knight. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law. I'm June Grosso and this is Bloomberg