This is Bloomberg Law, with June Grossel from Bloomberg Radio full to President Bucelli and to al Salvador for accepting these heinous monsters where they will face justice. An escalating legal fight over the Trump administration's decision to deport hundreds of alleged Venezuelan gang members to L Salvador. On Saturday, a federal judge issued an order temporarily barring the deportations under an eighteenth century wartime law invoked by President Donald Trump. The White House says the administration did not refuse to comply with a court order. Join me. His immigration law expert Leon Fresco, a partner at Hollanda Knight, tell us about this eighteenth century wartime law, it's only been used three times before the War of eighteen twelve, World War One, and World War Two.

This is Bloomberg Law, with June Grossel from Bloomberg Radio full to President Bucelli and to al Salvador for accepting these heinous monsters where they will face justice. An escalating legal fight over the Trump administration's decision to deport hundreds of alleged Venezuelan gang members to L Salvador. On Saturday, a federal judge issued an order temporarily barring the deportations under an eighteenth century wartime law invoked by President Donald Trump. The White House says the administration did not refuse to comply with a court order. Join me. His immigration law expert Leon Fresco, a partner at Hollanda Knight, tell us about this eighteenth century wartime law, it's only been used three times before the War of eighteen twelve, World War One, and World War Two.

Well, as you said, the Alien Enemies Bag from seventeen eighty nine from the John Adams administration was there to prevent a situation where essentially either we would get invaded and we couldn't take people outside of the United States, or we would basically be invaded surrepficiously by people who would then sort of pick up arms later at some future point and destabilize the United States. And as you said, it was invoked three times in the history of the United States. And so the question in President Trump's mind is can this be invoked now to stop what he deems to be an invasion in the same sense, which would be that if people from Venezuela are coming at large numbers who then come into the United States and destabilize certain communities. He feels like that's no different than if it had been a coordinated invasion. But said, he can designate this group trend Ragua, which is a sort of destabilizing gang, and say that they came in with the passive acquiescence of the Venezuelan government, such that they're a hostile group actor who can be deported without a hearing. And so that's what's at stake here, is is that something that's possible to do? But quite frankly, even more important, the real threshold question is will the court say that a determination under the Alien Enemies Act is what's called a political question, meaning even if the judges disagree, they won't get into it because they just won't review it. They'll just say, look, that's for the president to make the president swears it out to the Constitution. And if the president thinks that somebody is a dangerous organization, we don't have time to review this in the courts. They just need to make this invocation and get the people out. And so that's what's going to be. To me, the most interesting threshold question is does this even get a review in the first place. Then you have the second and third order questions. It just gets a review. What is the review? Is the review? Did you make the right call? Is this a destabilizing group? And then the third order question is, well, is this particular human being that you're about to deport one of the people who's a member of the group, and in what way can someone challenge such a determination? So all of those questions are up progress here.

Well, as you said, the Alien Enemies Bag from seventeen eighty nine from the John Adams administration was there to prevent a situation where essentially either we would get invaded and we couldn't take people outside of the United States, or we would basically be invaded surrepficiously by people who would then sort of pick up arms later at some future point and destabilize the United States. And as you said, it was invoked three times in the history of the United States. And so the question in President Trump's mind is can this be invoked now to stop what he deems to be an invasion in the same sense, which would be that if people from Venezuela are coming at large numbers who then come into the United States and destabilize certain communities. He feels like that's no different than if it had been a coordinated invasion. But said, he can designate this group trend Ragua, which is a sort of destabilizing gang, and say that they came in with the passive acquiescence of the Venezuelan government, such that they're a hostile group actor who can be deported without a hearing. And so that's what's at stake here, is is that something that's possible to do? But quite frankly, even more important, the real threshold question is will the court say that a determination under the Alien Enemies Act is what's called a political question, meaning even if the judges disagree, they won't get into it because they just won't review it. They'll just say, look, that's for the president to make the president swears it out to the Constitution. And if the president thinks that somebody is a dangerous organization, we don't have time to review this in the courts. They just need to make this invocation and get the people out. And so that's what's going to be. To me, the most interesting threshold question is does this even get a review in the first place. Then you have the second and third order questions. It just gets a review. What is the review? Is the review? Did you make the right call? Is this a destabilizing group? And then the third order question is, well, is this particular human being that you're about to deport one of the people who's a member of the group, and in what way can someone challenge such a determination? So all of those questions are up progress here.

So it just has to be a destabilizing group or does it have to actually be that they're perpetrating an invasion?

So it just has to be a destabilizing group or does it have to actually be that they're perpetrating an invasion?

Well, you have to declare that there's an invasion, there's no doubt about it. But it doesn't have to be an official invasion in the way people think about it, where people come in uniform and they actually all have guns and helmets and they cross the border. That part is not necessary here. What is necessary is that you find that people basically are entering the United States again in an invasion, so to speak. I'll read the text whenever there's a declared war between the United States and any foreign nation or government, here's the key. Or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government. As the President makes public proclamation of the event, all native citizens enizens are subjects of the hostile nation who shall be within the United States and non naturalized shall be liable to be apprehended, restrained, secured, and remove the alien enemies. And so the point being, you don't actually need that declared war, You just need an invasion or predatory incursion to be proclaimed. And so that's going to be the route that is proclaimed. There.

Well, you have to declare that there's an invasion, there's no doubt about it. But it doesn't have to be an official invasion in the way people think about it, where people come in uniform and they actually all have guns and helmets and they cross the border. That part is not necessary here. What is necessary is that you find that people basically are entering the United States again in an invasion, so to speak. I'll read the text whenever there's a declared war between the United States and any foreign nation or government, here's the key. Or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government. As the President makes public proclamation of the event, all native citizens enizens are subjects of the hostile nation who shall be within the United States and non naturalized shall be liable to be apprehended, restrained, secured, and remove the alien enemies. And so the point being, you don't actually need that declared war, You just need an invasion or predatory incursion to be proclaimed. And so that's going to be the route that is proclaimed. There.

Five Venezuelans who are in federal custody filed a class action lawsuit in federal court claiming that their expulsion under this eighteenth century law would violate FI federal law and the constitutions guarantee to do process. Tell us what the judge decided on Saturday.

Five Venezuelans who are in federal custody filed a class action lawsuit in federal court claiming that their expulsion under this eighteenth century law would violate FI federal law and the constitutions guarantee to do process. Tell us what the judge decided on Saturday.

Well, what the judge basically said, is this is super complicated, as we've just laid out. There's a lot of issues here. You know, again, does the court even have jurisdiction to do this? Can the court only do specific people? Can they do the whole group? Can they do the nationwide injunction? What is the method for reviewing this all of that? So what the court said is if these people are all in detention, and that means there's no harm that will come from this group remaining in detention, then all I want to do, as the court is preserve the status quo, meaning keep these people in detention, but don't actually remove them yet so that I can decide all these other issues in the case. And what he had said as an oral order during the hearing is if there's people that are about to leave or are in the air, then they need to be returned back because he knew that the time was imminent, and so he said that in the oral but that wasn't in the written decision. And so that is one of the issues here is was the compliance needed for the oral or for the written decision or for both.

Well, what the judge basically said, is this is super complicated, as we've just laid out. There's a lot of issues here. You know, again, does the court even have jurisdiction to do this? Can the court only do specific people? Can they do the whole group? Can they do the nationwide injunction? What is the method for reviewing this all of that? So what the court said is if these people are all in detention, and that means there's no harm that will come from this group remaining in detention, then all I want to do, as the court is preserve the status quo, meaning keep these people in detention, but don't actually remove them yet so that I can decide all these other issues in the case. And what he had said as an oral order during the hearing is if there's people that are about to leave or are in the air, then they need to be returned back because he knew that the time was imminent, and so he said that in the oral but that wasn't in the written decision. And so that is one of the issues here is was the compliance needed for the oral or for the written decision or for both.

There's some confusion. So the White House Press Secretary said that the administration did not refuse to comply with a court order, but also that the administration believed the order was not lawful, unconstitutional, and unfair. It had no lawful basis because it was issued after the aliens had already been removed from US territory, So it's unclear if they disobeyed the.

There's some confusion. So the White House Press Secretary said that the administration did not refuse to comply with a court order, but also that the administration believed the order was not lawful, unconstitutional, and unfair. It had no lawful basis because it was issued after the aliens had already been removed from US territory, So it's unclear if they disobeyed the.

Order or not. Who, what, when, where and why will have to be established first, and then there will be a determination after the who, what, when, where and why as to whether, then based on that, was there an ability to do what was done or was there not a legal ability to do what was done? And then based on that, if the court wants to go forward and say that something was done that should have been done, and the court has to decide what the remedy is, and could the remedy be bringing all these people back to the United States or could it be something even more serious than that, And that's gonna be the questions. And you know, I will say this, having worked in the Department of Justice and having done this for a couple of decades, it's not unusual. The courts have issued these orders plenty of times where they say someone has to be returned back to the United States who's already been deported, the government has to find them in the foreign country. They don't even know where they are. They have to try to find them and bring them back, or the plane is in the middle of the flight and they have to bring it back. So I think the judge was going along with that sort of pattern and practice that had been happening for decades now, because the judges knew that these flights could be turned back. And this is just the first time an administration has taken this position. So we'll be interesting to see what happens. It's just different than what I've been done in the past. But I don't think this has ever been litigated to be fair, So we'll have to wait and see on that.

Order or not. Who, what, when, where and why will have to be established first, and then there will be a determination after the who, what, when, where and why as to whether, then based on that, was there an ability to do what was done or was there not a legal ability to do what was done? And then based on that, if the court wants to go forward and say that something was done that should have been done, and the court has to decide what the remedy is, and could the remedy be bringing all these people back to the United States or could it be something even more serious than that, And that's gonna be the questions. And you know, I will say this, having worked in the Department of Justice and having done this for a couple of decades, it's not unusual. The courts have issued these orders plenty of times where they say someone has to be returned back to the United States who's already been deported, the government has to find them in the foreign country. They don't even know where they are. They have to try to find them and bring them back, or the plane is in the middle of the flight and they have to bring it back. So I think the judge was going along with that sort of pattern and practice that had been happening for decades now, because the judges knew that these flights could be turned back. And this is just the first time an administration has taken this position. So we'll be interesting to see what happens. It's just different than what I've been done in the past. But I don't think this has ever been litigated to be fair, So we'll have to wait and see on that.

You mean, whether the order applies if the plane is outside the territory of the United.

You mean, whether the order applies if the plane is outside the territory of the United.

States, right, whether the order applies that the plane is outside the territory. And also just logistically, there are safety issues involved getting all of these folks on the plane. What if you're closer to the landing than to the arrival, you know, does the plane have enough fuel? All these sorts of questions. You know that none of these things we should take for granted, and all need to be part of an inquiry to determine these things, because these are all super complicated questions. And also to remove people is quite an operation. Some people are literally given medicine and safety precautions and all this other stuff, and so trying to just unwind all of that isn't as easy as people think it is to be fair to the administration in that sense.

States, right, whether the order applies that the plane is outside the territory. And also just logistically, there are safety issues involved getting all of these folks on the plane. What if you're closer to the landing than to the arrival, you know, does the plane have enough fuel? All these sorts of questions. You know that none of these things we should take for granted, and all need to be part of an inquiry to determine these things, because these are all super complicated questions. And also to remove people is quite an operation. Some people are literally given medicine and safety precautions and all this other stuff, and so trying to just unwind all of that isn't as easy as people think it is to be fair to the administration in that sense.

And what about the idea of paying another country to keep these Venezuelans in prison, and apparently it's a notorious prison.

And what about the idea of paying another country to keep these Venezuelans in prison, and apparently it's a notorious prison.

Well, this is what's complicated is if you could remove the people back to Venezuela, it would undermine the argument that this is part of an incursion because of Venezuela didn't care and accepted the people back. Then it would be more complicated to say these are people that the Venezuelan government wants in the United States in order to destabilize America, because if they're gladly accepting them back, that's not the case. So this Elsavador thing becomes part of the analysis because what you're saying is Venezuela won't accept these people back, so we have to remove them somewhere. And so it is permitted under the immigration law to remove people to a third country. What gets complicated here is what then, Because typically when you do these removals to a third country, you just remove the people, meaning they get off the plane and they live in the third country. It's much rarer. It's not unheard of. Again, none of these things are unheard of. They're all just less common than more common that the people are detained to a third country and they're put into a detention scenario. And so the question is, well, what would be the length of time that those individuals would be subject to that detention Because depending on that then there's claims people could make back in the United States about whether that would violate a law called the Convention against Torture if you're going to detain people indefinitely for that amount of time. So this is a very fluid situation, and the courts are going to have to grapple with all of those questions.

Well, this is what's complicated is if you could remove the people back to Venezuela, it would undermine the argument that this is part of an incursion because of Venezuela didn't care and accepted the people back. Then it would be more complicated to say these are people that the Venezuelan government wants in the United States in order to destabilize America, because if they're gladly accepting them back, that's not the case. So this Elsavador thing becomes part of the analysis because what you're saying is Venezuela won't accept these people back, so we have to remove them somewhere. And so it is permitted under the immigration law to remove people to a third country. What gets complicated here is what then, Because typically when you do these removals to a third country, you just remove the people, meaning they get off the plane and they live in the third country. It's much rarer. It's not unheard of. Again, none of these things are unheard of. They're all just less common than more common that the people are detained to a third country and they're put into a detention scenario. And so the question is, well, what would be the length of time that those individuals would be subject to that detention Because depending on that then there's claims people could make back in the United States about whether that would violate a law called the Convention against Torture if you're going to detain people indefinitely for that amount of time. So this is a very fluid situation, and the courts are going to have to grapple with all of those questions.

So many many questions and so few answers. Coming up next on the Bloomberg Laanchow, I'll continue this convertation with Leon Fresco of Holland and Knight, a lawsuit over Trump executive orders that threaten to deport people who express views critical of the US or Israeli government. I'm June Grosso. When you're listening to Bloomberg. President Donald Trump is invoking the Alien Enemies Act of seventeen ninety eight, a wartime authority that allows the president broader leeway on policy and executive actions, to speed up mass deportations. Trump claims that the Venezuelan gang Trendyarragois is invading the United States. The Act has only been used three times before, all during Wars. I've been talking to immigration law expert Leon Fresco, a partner at Holland and Knight. So Leon plaintiffs in a couple of cases have accused the Trump administration of not strictly following court orders or sort of slow walking their response to court orders. And now there's an indication that the Trumpet minute frstration violated a court order in deporting a doctor from Lebanon, a kidney transplant specialist who was supposed to start work at Brown University as an assistant professor of medicine, even though federal Judge Leo Sorkin issued an order that an in person hearing be scheduled for today with the doctor brought to court. So these instances seem to be piling up well.

So many many questions and so few answers. Coming up next on the Bloomberg Laanchow, I'll continue this convertation with Leon Fresco of Holland and Knight, a lawsuit over Trump executive orders that threaten to deport people who express views critical of the US or Israeli government. I'm June Grosso. When you're listening to Bloomberg. President Donald Trump is invoking the Alien Enemies Act of seventeen ninety eight, a wartime authority that allows the president broader leeway on policy and executive actions, to speed up mass deportations. Trump claims that the Venezuelan gang Trendyarragois is invading the United States. The Act has only been used three times before, all during Wars. I've been talking to immigration law expert Leon Fresco, a partner at Holland and Knight. So Leon plaintiffs in a couple of cases have accused the Trump administration of not strictly following court orders or sort of slow walking their response to court orders. And now there's an indication that the Trumpet minute frstration violated a court order in deporting a doctor from Lebanon, a kidney transplant specialist who was supposed to start work at Brown University as an assistant professor of medicine, even though federal Judge Leo Sorkin issued an order that an in person hearing be scheduled for today with the doctor brought to court. So these instances seem to be piling up well.

Again, without getting into the specifics of each individual case, I think it is important that when you do these operations, everybody tried to make sure that they're doing exactly what they're supposed to do, because in the long run, this will make the operations better for everyone involved, for the foreign nationals, for the government, for the courts, for the society. And so I think the key is if you have this accepted reality that there will be more enforcements, there will be more removals. This is something that was campaigned on and was elected on. The question is how can that be done in a way where it is in accordance with the way Congress wanted it to be done, with the way the courts wanted to be done. And there is no doubt that this administration can have that kind of robust enforcement, and so the question is just doing it in a way where it's beyond reproach. And so hopefully, you know there are starts to this, but hopefully everything can be done in that way. But yes, you're seeing cases where that's certainly being challenged.

Again, without getting into the specifics of each individual case, I think it is important that when you do these operations, everybody tried to make sure that they're doing exactly what they're supposed to do, because in the long run, this will make the operations better for everyone involved, for the foreign nationals, for the government, for the courts, for the society. And so I think the key is if you have this accepted reality that there will be more enforcements, there will be more removals. This is something that was campaigned on and was elected on. The question is how can that be done in a way where it is in accordance with the way Congress wanted it to be done, with the way the courts wanted to be done. And there is no doubt that this administration can have that kind of robust enforcement, and so the question is just doing it in a way where it's beyond reproach. And so hopefully, you know there are starts to this, but hopefully everything can be done in that way. But yes, you're seeing cases where that's certainly being challenged.

I thought that Venezuela had agreed to take back Venezuelans.

I thought that Venezuela had agreed to take back Venezuelans.

Yes, this is where it's complicated. I think the key is are the people that Venezuela is agreeing to take back just people who are not fitting this criminal profile and instead people who are fitting a profile file where perhaps it's just someone who came on a visitor visa or a student visa and overstate that visa, and so then it's just a matter of repatriating someone like that as opposed to someone with these criminal profiles, which again, it does make it harder to invoke the Alien Enemies Act if you can deport the people back to that country, because the point is it undermines the argument that there was an incursion there if the country's accepting it. So I think if you're going to try to establish this Alien Enemies Act, what you have to say is we've asked Venezuela to take these individuals back, and they won't take them back.

Yes, this is where it's complicated. I think the key is are the people that Venezuela is agreeing to take back just people who are not fitting this criminal profile and instead people who are fitting a profile file where perhaps it's just someone who came on a visitor visa or a student visa and overstate that visa, and so then it's just a matter of repatriating someone like that as opposed to someone with these criminal profiles, which again, it does make it harder to invoke the Alien Enemies Act if you can deport the people back to that country, because the point is it undermines the argument that there was an incursion there if the country's accepting it. So I think if you're going to try to establish this Alien Enemies Act, what you have to say is we've asked Venezuela to take these individuals back, and they won't take them back.

Is this an indication of the difficulty that the Trump administration is having deporting people because you know, as we've discussed before, during his campaign, Trump said, you know, millions of people are going to be deported, and we have Tom Holman, the Borders are saying, first they're going to people who have criminal violations, and you know, we haven't seen those mass deportations that were promised.

Is this an indication of the difficulty that the Trump administration is having deporting people because you know, as we've discussed before, during his campaign, Trump said, you know, millions of people are going to be deported, and we have Tom Holman, the Borders are saying, first they're going to people who have criminal violations, and you know, we haven't seen those mass deportations that were promised.

Well, the problem is this, there's only so many people that are in the pipeline for deportation right now, and those are the people with final orders of removal, and those are the people with criminal convictions that are easy enough to get removal orders for because they don't have a way to challenge any further they're removal. That number is a finite number, and it's going to be complicated to get more than that number in a rapid fashion. And so the Alien Enemies Act is designed to try to get larger segments out of the United States without having to go through that administrative hearing process, because they don't want to have to take the months or years where this is necessary. The courts right now are taking cases for twenty thirty and twenty thirty one, and so the problem is what do you do with that situation if you're trying to increase the pipeline And there's also no funding for this, which is something they're looking to fix in the Reconciliation bills, and so from all of these perspectives, it's just a matter of I don't think anybody is going to doubt that a year or two years from now, the removal numbers will be much much higher than they are now. The question is is that going to be a patient, ramping up approach to get there or are there going to be efforts to try to get that number as high as possible as soon as possible.

Well, the problem is this, there's only so many people that are in the pipeline for deportation right now, and those are the people with final orders of removal, and those are the people with criminal convictions that are easy enough to get removal orders for because they don't have a way to challenge any further they're removal. That number is a finite number, and it's going to be complicated to get more than that number in a rapid fashion. And so the Alien Enemies Act is designed to try to get larger segments out of the United States without having to go through that administrative hearing process, because they don't want to have to take the months or years where this is necessary. The courts right now are taking cases for twenty thirty and twenty thirty one, and so the problem is what do you do with that situation if you're trying to increase the pipeline And there's also no funding for this, which is something they're looking to fix in the Reconciliation bills, and so from all of these perspectives, it's just a matter of I don't think anybody is going to doubt that a year or two years from now, the removal numbers will be much much higher than they are now. The question is is that going to be a patient, ramping up approach to get there or are there going to be efforts to try to get that number as high as possible as soon as possible.

And we've discussed the pending case against the former Columbia graduate student where the Trump administration is using a different provision, using the Secretary of State.

And we've discussed the pending case against the former Columbia graduate student where the Trump administration is using a different provision, using the Secretary of State.

Right in that case, they're saying that the Secretary of State has designated the Columbia student as a person who has serious adverse consequences to the US government and needs to be deported on that basis. And this is actually similar to the Alien Enemies Act in the sense of is it something that is amenable to judicial review or not? And that's the question. This is yet another way to remove people that's intended to not have judicial review, and the question is will the court assign judicial reviews to this or not.

Right in that case, they're saying that the Secretary of State has designated the Columbia student as a person who has serious adverse consequences to the US government and needs to be deported on that basis. And this is actually similar to the Alien Enemies Act in the sense of is it something that is amenable to judicial review or not? And that's the question. This is yet another way to remove people that's intended to not have judicial review, and the question is will the court assign judicial reviews to this or not.

And at Cornell University, professor and two grad students are suing Trump and DHS over executive orders that threaten to deport and prosecute those who express views critical of the US or Israeli governments. This perhaps is also an outgrowth of the arrest of that Columbia University graduate student.

And at Cornell University, professor and two grad students are suing Trump and DHS over executive orders that threaten to deport and prosecute those who express views critical of the US or Israeli governments. This perhaps is also an outgrowth of the arrest of that Columbia University graduate student.

Right. I think what's happening is that there are students who are saying, well, rather than wait to see if I get arrested, maybe it's a better lead litigation strategy for me to proactively sue for some sort of declaratory and injunctive relief so that I can actually sort of control my own destiny in the United States. I do think this is the kind of thing where the government, the federal government is going to say, there's no jurisdiction to hear this, because you can't actually hear these things until you're placed in removal proceedings. The risk of being in removal proceedings is not enough. You actually have to be placed in removal proceedings, then make these challenges, and then if you lose, only then you can go to federal courts and appeal your removal order. That's what the federal government argues in all of these cases, and so it will have to be a departure from that precedent by the court that they're going to actually get at these issues proactively and upfront. I understand the strategy why one would want to control their own destiny, but the case law isn't exactly where these students would want it to be with regard to being able to challenge these things upfront when there isn't currently a deportation proceeding pendent.

Right. I think what's happening is that there are students who are saying, well, rather than wait to see if I get arrested, maybe it's a better lead litigation strategy for me to proactively sue for some sort of declaratory and injunctive relief so that I can actually sort of control my own destiny in the United States. I do think this is the kind of thing where the government, the federal government is going to say, there's no jurisdiction to hear this, because you can't actually hear these things until you're placed in removal proceedings. The risk of being in removal proceedings is not enough. You actually have to be placed in removal proceedings, then make these challenges, and then if you lose, only then you can go to federal courts and appeal your removal order. That's what the federal government argues in all of these cases, and so it will have to be a departure from that precedent by the court that they're going to actually get at these issues proactively and upfront. I understand the strategy why one would want to control their own destiny, but the case law isn't exactly where these students would want it to be with regard to being able to challenge these things upfront when there isn't currently a deportation proceeding pendent.

I'm not sure if the students that just sued are here on student visas or not.

I'm not sure if the students that just sued are here on student visas or not.

Well, yeah, that's not clear either. And if they're just attacking the free speech without anything related to immigration, well then that's fine. That's going to be its own lawsuit and they can attack that and that will just be decided on the merite. But if one of the pieces of relief that they're asking for is that this order cannot be used as a predicate for an immigration action, that's where I'm saying that they're going to have a tough time actually getting that part of the release.

Well, yeah, that's not clear either. And if they're just attacking the free speech without anything related to immigration, well then that's fine. That's going to be its own lawsuit and they can attack that and that will just be decided on the merite. But if one of the pieces of relief that they're asking for is that this order cannot be used as a predicate for an immigration action, that's where I'm saying that they're going to have a tough time actually getting that part of the release.

Well, some of these issues are definitely going to end up at the Supreme Court. Thanks so much, Leon. That's Leon Fresco of Honda Knight. Same sex marriage became legal nationwide in June of twenty fifteen, when the Supreme Court ruling in the case of Obergerfel v. Hodges ublish the right to same sex marriage under the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Same sex marriage rights were bolstered in twenty twenty two when Congress passed the Respect for Marriage Act, but conservative legislators are increasingly speaking out against that landmark ruling, and this year, legislatures in a handful of states have introduced measures urging the Supreme Court to overturn Obergerfeld. In North Dakota, the House passed such a resolution, but it failed to pass in the Senate last Thursday. These resolutions have no legal weight, but they do signal the opinions of the legislators. Add to that the fact that two conservative Supreme Court Justices, Clarence Thomas and Samuel Alito, are on record as wanting to revisit the Obergerfelt case, joining me his family law attorney Susan Bender, a partner at benderin Crane. So we can put this on too context explain in the basis of the Supreme Court's ruling in know Bergerfeld.

Well, some of these issues are definitely going to end up at the Supreme Court. Thanks so much, Leon. That's Leon Fresco of Honda Knight. Same sex marriage became legal nationwide in June of twenty fifteen, when the Supreme Court ruling in the case of Obergerfel v. Hodges ublish the right to same sex marriage under the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Same sex marriage rights were bolstered in twenty twenty two when Congress passed the Respect for Marriage Act, but conservative legislators are increasingly speaking out against that landmark ruling, and this year, legislatures in a handful of states have introduced measures urging the Supreme Court to overturn Obergerfeld. In North Dakota, the House passed such a resolution, but it failed to pass in the Senate last Thursday. These resolutions have no legal weight, but they do signal the opinions of the legislators. Add to that the fact that two conservative Supreme Court Justices, Clarence Thomas and Samuel Alito, are on record as wanting to revisit the Obergerfelt case, joining me his family law attorney Susan Bender, a partner at benderin Crane. So we can put this on too context explain in the basis of the Supreme Court's ruling in know Bergerfeld.

Well, first, you know, there are a couple of things you have to look at here. Obergeffeld didn't come out of the woodwork. Aubergeffel was in twenty fifteen, and Obergeffel on the heels of United statesy Windsor said that a state is required to give a license between two people of the same sex. That's a very big deal, right, because at no point before that did the United States Supreme Court say that you got to give a license to two people the same sex. So that was Obergetfel in twenty fifteen. Since twenty and fifteen, states around the country, some states have been finding that some states are okay with it. In New York State is totally okay with it. Well, New York State in twenty eleven came out with a statute which says, yep, you got to give license to same sex couples in New York State, which is was a very big deal in twenty eleven. Let me let me assure you after years of discrimination against non heterosexuals. It was a a landslide decision.

Well, first, you know, there are a couple of things you have to look at here. Obergeffeld didn't come out of the woodwork. Aubergeffel was in twenty fifteen, and Obergeffel on the heels of United statesy Windsor said that a state is required to give a license between two people of the same sex. That's a very big deal, right, because at no point before that did the United States Supreme Court say that you got to give a license to two people the same sex. So that was Obergetfel in twenty fifteen. Since twenty and fifteen, states around the country, some states have been finding that some states are okay with it. In New York State is totally okay with it. Well, New York State in twenty eleven came out with a statute which says, yep, you got to give license to same sex couples in New York State, which is was a very big deal in twenty eleven. Let me let me assure you after years of discrimination against non heterosexuals. It was a a landslide decision.

Justices Clarence Thomas and Samuel Alito have openly expressed that they would like to revisit the Obergerfeld decision, and, as Thomas said, in the case that overturned the constitutional right to abortion the Dobbs case. He said, as I have previously explained, substantive due process is an oxymoron that lacks any basis in the Constitution. He called it a legal fiction that is particularly dangerous. Explain what substantive due process is and how it's important in these decisions.

Justices Clarence Thomas and Samuel Alito have openly expressed that they would like to revisit the Obergerfeld decision, and, as Thomas said, in the case that overturned the constitutional right to abortion the Dobbs case. He said, as I have previously explained, substantive due process is an oxymoron that lacks any basis in the Constitution. He called it a legal fiction that is particularly dangerous. Explain what substantive due process is and how it's important in these decisions.

He wrote a concurring opinion, and he specifically said, he very clearly said that it's time to quote correct the error, okay, and the error is that, as you noted, that substantive process precedents are demonstra erroneous because there is nothing in the Constitution. There's nothing in the Constitution according to Alito and Thomas, which gave the court the right to expand what would they call fundamental rights. Right to marry, right to an abortion, right to interracial relationships. I mean, these are all under the number of various provisions of the fourteenth Amendment. And if it was up to Thomas and Alito, there would be no subject of due process, which means contraception under Griswold, right to marry, livings against Virginia. And then we have Obergefel and all the rights that many of us considered to be our fundamental due process rights. Thomas is saying it's not fundamental and it's not due process. You should go to the states and work it out of the states.

He wrote a concurring opinion, and he specifically said, he very clearly said that it's time to quote correct the error, okay, and the error is that, as you noted, that substantive process precedents are demonstra erroneous because there is nothing in the Constitution. There's nothing in the Constitution according to Alito and Thomas, which gave the court the right to expand what would they call fundamental rights. Right to marry, right to an abortion, right to interracial relationships. I mean, these are all under the number of various provisions of the fourteenth Amendment. And if it was up to Thomas and Alito, there would be no subject of due process, which means contraception under Griswold, right to marry, livings against Virginia. And then we have Obergefel and all the rights that many of us considered to be our fundamental due process rights. Thomas is saying it's not fundamental and it's not due process. You should go to the states and work it out of the states.

Are people concerned that there are more justices on the Supreme Court that might want to revisit Obergefeld.

Are people concerned that there are more justices on the Supreme Court that might want to revisit Obergefeld.

So now getting to the writing on the wall, and this is an important point. As you noted in Dobbs, Thomas said that it's time to correct the error. It is clear to many of us who watch the Court that there will come a case percolating, probably procolating right now in the States where Thomas and Alito are going to have the opportunity to overturn substanitute process cases, and specifically Obergefell and the United States se Windsor and perhaps Gruswold and other substance thute process cases. There's no question in our minds that is going to happen. The question is not whether. The question is when. And that's an important factor because cases have to percolate up to the Supreme Court. You just don't go to the Supreme Court and say, hey, listen, I want to undo Obergeffel, which some of the states have been trying to do by passing resolutions. So the Court. Supreme Court will have to take the case and on the issue of Obergeffel and the Respect for Marriage Act, we believe it's going to happen. We just don't know when, and of course we're hoping it doesn't happen within this administration. I don't want to get political, but if it happened within this administration, because of the event right now, it's pretty clear to us that Obergefell will be reversed.

So now getting to the writing on the wall, and this is an important point. As you noted in Dobbs, Thomas said that it's time to correct the error. It is clear to many of us who watch the Court that there will come a case percolating, probably procolating right now in the States where Thomas and Alito are going to have the opportunity to overturn substanitute process cases, and specifically Obergefell and the United States se Windsor and perhaps Gruswold and other substance thute process cases. There's no question in our minds that is going to happen. The question is not whether. The question is when. And that's an important factor because cases have to percolate up to the Supreme Court. You just don't go to the Supreme Court and say, hey, listen, I want to undo Obergeffel, which some of the states have been trying to do by passing resolutions. So the Court. Supreme Court will have to take the case and on the issue of Obergeffel and the Respect for Marriage Act, we believe it's going to happen. We just don't know when, and of course we're hoping it doesn't happen within this administration. I don't want to get political, but if it happened within this administration, because of the event right now, it's pretty clear to us that Obergefell will be reversed.

There as like thirty five states that have laws or constitutional amendments on the books that would reinstate bans on same sex marriage if the Obergefel ruling were overturned, and some states have introduced resolutions asking the Supreme Court to overturn Obergerfeld. None of those has passed that I know of.

There as like thirty five states that have laws or constitutional amendments on the books that would reinstate bans on same sex marriage if the Obergefel ruling were overturned, and some states have introduced resolutions asking the Supreme Court to overturn Obergerfeld. None of those has passed that I know of.

Well, we have well right now we have nine states which have formulated resolutions to encourage the Supreme Court to overturn Obergeffell. That we know for sure as of right now, many states have same sex marriage on the books. So the question then becomes, I'm going to say, Thomas and Alito going to send it back to the states for the states to maybe reassess Obergeffell in light of this administration, that would.

Well, we have well right now we have nine states which have formulated resolutions to encourage the Supreme Court to overturn Obergeffell. That we know for sure as of right now, many states have same sex marriage on the books. So the question then becomes, I'm going to say, Thomas and Alito going to send it back to the states for the states to maybe reassess Obergeffell in light of this administration, that would.

Be, my guests, the Respect for Marriage Act in twenty twenty two. What does that do?

Be, my guests, the Respect for Marriage Act in twenty twenty two. What does that do?

Well, let me just say the Respect for Marriage Act, I think was a brilliant name because in nineteen and I have to say this, nineteen ninety six, it was President Clinton at that point, supported by the foreign President Biden, the Defensive Marriage Act, which said that a marriage could be between only one man and one woman. So now fast forward to twenty twenty two, some brilliant I would say, congress person said no, we're gonna call it the respects Marriage Act. And what the Respect for Marriage Act says is And by the way, this was congressional. This was congressional after Dobbs. So after Dobbs that come out with the Respectful Marriage Act was says well, marriage can be between members of the same sex. And if a particular state grants marriage between same sex couples, the other states have to give a comedy. They have to recognize it, which is important. So for example, in New York State, if we have same sex marriage couple and they moved to North Dakota, which no longer recognize the same sex marriage in death state, North Dakota has to respect New York state law. That's a very big deal, and that was twenty twenty two unto the Biden administration. On the heels of Dobbs.

Well, let me just say the Respect for Marriage Act, I think was a brilliant name because in nineteen and I have to say this, nineteen ninety six, it was President Clinton at that point, supported by the foreign President Biden, the Defensive Marriage Act, which said that a marriage could be between only one man and one woman. So now fast forward to twenty twenty two, some brilliant I would say, congress person said no, we're gonna call it the respects Marriage Act. And what the Respect for Marriage Act says is And by the way, this was congressional. This was congressional after Dobbs. So after Dobbs that come out with the Respectful Marriage Act was says well, marriage can be between members of the same sex. And if a particular state grants marriage between same sex couples, the other states have to give a comedy. They have to recognize it, which is important. So for example, in New York State, if we have same sex marriage couple and they moved to North Dakota, which no longer recognize the same sex marriage in death state, North Dakota has to respect New York state law. That's a very big deal, and that was twenty twenty two unto the Biden administration. On the heels of Dobbs.

Let's just say that the Supreme Court overturns same sex marriage, then Congress has to also overturn the Respect for Marriage Act.

Let's just say that the Supreme Court overturns same sex marriage, then Congress has to also overturn the Respect for Marriage Act.

Yes, unless unless the Supreme Court both overturns over Geffell and reverses the Congressional decision. That's possible. Totally possible. And that's my guess again, you know, for talking opinion here, that's what the Supreme Court is waiting to do. They're waiting for this, for the ability to address substantives due process, address over Geffell, reverse it, and reverse the Respect for Marriage Act. Just like DOMA was overturned in part by the United States. They're in twenty thirteen. The Supreme Court has the power to overturn the Respect for Marriage Act. The question is will they do it.

Yes, unless unless the Supreme Court both overturns over Geffell and reverses the Congressional decision. That's possible. Totally possible. And that's my guess again, you know, for talking opinion here, that's what the Supreme Court is waiting to do. They're waiting for this, for the ability to address substantives due process, address over Geffell, reverse it, and reverse the Respect for Marriage Act. Just like DOMA was overturned in part by the United States. They're in twenty thirteen. The Supreme Court has the power to overturn the Respect for Marriage Act. The question is will they do it.

As far as Trump goes, he's attacked LGBTQ rights since day one during his campaign, et cetera. But he hasn't directly targeted same sex marriage, has he.

As far as Trump goes, he's attacked LGBTQ rights since day one during his campaign, et cetera. But he hasn't directly targeted same sex marriage, has he.

Not to my knowledge, not to mych And what he targeted was more having to do with the transgender issues. He has not to my knowledge, attacked or addressed same sex marriage.

Not to my knowledge, not to mych And what he targeted was more having to do with the transgender issues. He has not to my knowledge, attacked or addressed same sex marriage.

If the Supreme Court were to reverse the right to same sex marriage, then you have all these couples who are already married, many of whom have children. It would throw their lives into chaos. I mean, what would happen?

If the Supreme Court were to reverse the right to same sex marriage, then you have all these couples who are already married, many of whom have children. It would throw their lives into chaos. I mean, what would happen?

So that's where family court practitioners do best. There are two major problems if same sex marriage is reversed. One is financial, of course, and one is parents. Who is the parent? So, for example, in New York State it is presumed and in many states also a child born of the marriage is presumed to be the child of that marriage. So in New York State, the non biological parent can go into a hospital, make decisions on behalf of the child, and roll the childs in school do all the things their parents do. So if Obergeffel and the respectful marriage acts are overturned, does it call into question the ability of the other parent to make those decisions on behalf of the child, and then their state decisions and their medical decisions, in the school decisions, there are all the kinds of decisions that parents have. Does a call into question in my view, it will, but it would require my opinion, both reversal of Obergeffel and the respectful Marriage Acts.

So that's where family court practitioners do best. There are two major problems if same sex marriage is reversed. One is financial, of course, and one is parents. Who is the parent? So, for example, in New York State it is presumed and in many states also a child born of the marriage is presumed to be the child of that marriage. So in New York State, the non biological parent can go into a hospital, make decisions on behalf of the child, and roll the childs in school do all the things their parents do. So if Obergeffel and the respectful marriage acts are overturned, does it call into question the ability of the other parent to make those decisions on behalf of the child, and then their state decisions and their medical decisions, in the school decisions, there are all the kinds of decisions that parents have. Does a call into question in my view, it will, but it would require my opinion, both reversal of Obergeffel and the respectful Marriage Acts.

What are you advising your clients who are in same sex marriages and have children? Are there any proactive steps that they're taking now?

What are you advising your clients who are in same sex marriages and have children? Are there any proactive steps that they're taking now?

When are clients tell us they're going to travel, and if they travel to a state, let's say like Florida, we have called Florida attorneys, and Florida attorneys have prepared powers of attorney for both parents to be able to make decisions on behalf of that child for any purpose, for any purpose including financial, medical, hospitalization. Those are the big three issues off the top of my head right now. In terms of finances, we have our clients prepare everything from certain kind of life insurance trusts to actual life insurance policies, to owning property as joint tenants with rights of survivorship which means it goes from one party to the next party of party one passes away instead of going through the estate. There are issues having to do with estate planning or beneficial designations in wills. Which has wills mended? You know, typically it will say all of my properties to go to my children who survived well, we can't say my children who survive. We have to put in the names of the children who survived because if well, I'm not worthing of New York State. But if in another state parties moved to another state, will that state permit the beneficiary who's a child of the marriage in New York but not recognized in another state to inherit. So what we do is as family law practitioners, as we read the writing on the wall, and we do a state planning powers of attorney and then financial planning.

When are clients tell us they're going to travel, and if they travel to a state, let's say like Florida, we have called Florida attorneys, and Florida attorneys have prepared powers of attorney for both parents to be able to make decisions on behalf of that child for any purpose, for any purpose including financial, medical, hospitalization. Those are the big three issues off the top of my head right now. In terms of finances, we have our clients prepare everything from certain kind of life insurance trusts to actual life insurance policies, to owning property as joint tenants with rights of survivorship which means it goes from one party to the next party of party one passes away instead of going through the estate. There are issues having to do with estate planning or beneficial designations in wills. Which has wills mended? You know, typically it will say all of my properties to go to my children who survived well, we can't say my children who survive. We have to put in the names of the children who survived because if well, I'm not worthing of New York State. But if in another state parties moved to another state, will that state permit the beneficiary who's a child of the marriage in New York but not recognized in another state to inherit. So what we do is as family law practitioners, as we read the writing on the wall, and we do a state planning powers of attorney and then financial planning.

Do you see any cases right now at the appellate level or lower court levels that might end up at the Supreme Court threatening same sex marriage?

Do you see any cases right now at the appellate level or lower court levels that might end up at the Supreme Court threatening same sex marriage?

All right? So right now, you know, I comb the internet and I haven't seen yet any cases that are on all fours to make it to the Supreme Court on the issue of reversing ober Geftfel and the Respect for Marriage Act. But remember, there are organizations around the country looking for those cases to have the opportunity to work themselves up to the system to reverse ober Guestfell and the Respect for Marriage Act. But sitting here right now between you and me, there are no cases that I'm aware of that fit all fours.

All right? So right now, you know, I comb the internet and I haven't seen yet any cases that are on all fours to make it to the Supreme Court on the issue of reversing ober Geftfel and the Respect for Marriage Act. But remember, there are organizations around the country looking for those cases to have the opportunity to work themselves up to the system to reverse ober Guestfell and the Respect for Marriage Act. But sitting here right now between you and me, there are no cases that I'm aware of that fit all fours.

Thanks for joining me. That's Susan Bender of Bender and Crane and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg

Thanks for joining me. That's Susan Bender of Bender and Crane and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg