Transcript
Birthright Citizenship And The Curious Case Of Judge Dugan
Amicus: A Law Review · Sat May 17, 2025
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on the broadcast stations of civic media as always.
I am delighted and I am honored that you have chosen to spend some of your important and precious time this weekend in conversation, in engagement with me and some of the major stories and there are a lot of them as always in the areas of government and law and the delivery of justice in America, the rule of law in particular.
As always, we take our name here on this broadcast.
Amicus from the Latin, from the legal term, which means friend.
And indeed, indeed, one of the news stories coming out of Justice past week, this major Supreme Court oral argument during the course of that oral argument.
Justice Gorsuch looked at one of the litigants, one of the lawyers appearing in front of him and said, I need all the amici, which is plural for amicus, I can get.
He said, I need all the friends I can get, all the legal advice, all the legal support I can possibly get.
We would like to take Justice Gorsuch up on his commitment to that and also serve as the amicus, the amici for you as well.
Indeed, one of the important stories that we're gonna be talking about,
in this edition of Amicus a Law Review is this major oral argument of just this past week.
It extended well beyond two hours.
It was scheduled for one hour before the Supreme Court.
They went almost two hours with three different lawyers arguing about, yes, that's right, birthright citizenship under the 14th Amendment to the Constitution.
I'm gonna get back to that to tell you a little bit more about where that comes from, why this is percolating up to use another word.
that was much in the debate this past week.
How did this come about?
How is it that we are now talking once again?
about what the 14th Amendment means, and not the language of the 14th Amendment guarantees due process and equal protection, all those other wonderful and good things that animate our nation, but instead looking to the very first phrases of that amendment to the Constitution ratified July 9th, 1868, after the Civil War.
We're gonna talk about what it means today, apparently, according to the President of the United States of America.
contrary to what every federal judge has found in opposition to what our president says that means.
And again, wrestling with that issue a bit, a bit before the Supreme Court this past week.
The big takeaway there, and we'll go into a deeper dive on exactly what some of the justices were concerned about, what they weren't concerned about just this past week.
The big story, however, the big takeaway is no clear resolution.
from their comments, their questions about how they would underscore and address the underlying issue here, which is whether or not birthright citizenship means what it says and says what it means.
And if you were born in the country, born in our United States of America, if you are entitled to citizenship,
The president attempted to carve out some exceptions to that.
We'll talk about what his executive order said.
Instead, the big takeaway from the oral argument, again, lasting two hours, lots of important questions back and forth, lots of hypotheticals, as always, focusing on practical things, all of that premised upon this baseline question about whether a judge judges in this particular instance and in others across the...
country, can impose what are called nationwide injunctions, can a single federal district court judge issue a judgment, issue an opinion, and make that applicable across the nation.
If you are in the northern district of Texas, the eastern district of Wisconsin, the western district of Washington, all of which we have seen produce various orders, can that singular federal judge issue an order?
based upon what she or he determines to be the law and the facts that is applicable to every other jurisdiction in the nation.
That was the focus of the overwhelming period of time during which the Supreme Court was addressing just this past week, the last oral argument of this term, the issue of birthright citizenship.
We'll talk more about what they said, lots of interesting things back and forth.
And again, coming from Justice Gorsuch,
On behalf of all of the judges, I need all the amici I can get.
I need all the friends I can get in terms of understanding this particular question.
of nationwide jurisdiction, nationwide, countrywide injunctions.
Lots of things to say about that.
We're gonna get into that in great detail.
The other major event happening almost at the same time that our United States Supreme Court in Washington, D.C.
is addressing whether or not the president's executive order can accept and can be pursued nationwide, get that acceptance of nationwide applicability.
At the same time, Wisconsin circuit court judge Hannah Dugan, right here in the Eastern District of Wisconsin in another federal courtroom, hers before a magistrate judge in the Eastern District of Wisconsin, downtown Milwaukee, 517 East Wisconsin Avenue.
It is that miraculous, amazing building right there on Wisconsin Avenue.
I suspect many of you have been there, certainly seen it if not gone into.
Take in what is your federal courthouse.
It is not the property of judges.
It's not the property of U.S.
attorneys.
It is your property in the midst of all of this activity in Washington, D.C., simultaneously with that.
We have what's called an arraignment and a plea hearing.
And it comes in the wake, as you know, of the indictment.
the indictment by a federal grand jury of Wisconsin circuit court judge Hannah Dugan.
We'll talk about what happened at that hearing, that arraignment and plea hearing.
We'll talk about the scheduling, yes, of a trial date.
which will probably not stick.
And significantly, we're going to talk about something that happened not only in connection with the indictment.
Why did that happen?
Why is it necessary under the Constitution for a grand jury to determine whether or not there's probable cause here?
What's that all about?
But we'll significantly talk about the importance of something else that happened in the hours before this arraignment, but immediately after the return by the grand jury of this indictment,
We're gonna talk about a motion, a request, a petition filed by the lawyers who are representing Judge Hannah Dugan.
We'll talk about the two bases upon which they are now asking already, right out of the gate.
They're asking the federal trial judge.
It's been assigned to Lynn Adelman.
He's a district court judge, a trial judge in the Eastern District of Wisconsin, a long tenured.
I appeared in front of him as did many other.
as do many other civil and criminal litigants on a regular basis assigned to him.
for pretrial processing, pretrial administration, and ultimately the trial of this case, if it gets that far, the significant other rule of law news just this past week is the filing by the attorneys who are representing defendant Hannah Dugan of a major motion dismiss, asking, asking that the judge, the court, Judge Edelman, dismiss this case outright even before we get to anything further about the merits before
we address anything about the relationship between the statutes that are invoked in that indictment and the specific facts set forth in the complaint and in that indictment finding that there's a basis according to the defense counsel for the judge to dismiss the case based upon the fact that she is immune from prosecution.
Where have we heard that word before?
And indeed invoking, invoking the very rules and principles that the Supreme Court articulated about 11 months ago in that major catastrophic ruling involving immunities that attend a sitting president.
That immunity position now used in this context, asking the judge to dismiss this case on the basis that Judge Hannah Dugan is immune from prosecution based upon the courtroom activities.
alleged in the indictment and secondarily federalism federalism acquires again that civics that you all have it goes back to the 10th amendment that 10th amendment says that power is not delegated to the federal government to the united states by the constitution by this very document nor prohibited by it to the states are reserved to the states respectively or to the people
That's the Tenth Amendment.
That's the federalism under which our system works, invoking both of those principles, immunities and federalism.
The attorneys for Hannah Duggan have filed a motion now pending, even before the arraignment of this past week, now pending in front of the magistrate judge, now pending in front of the district court judge for resolution, asking that the court
petitioning the court to dismiss this outright and again anticipating as the pleading does also say further motions coming up down the road significant significant events going on in Washington DC just this past week and also in Milwaukee, Wisconsin both of them in federal courts both of them addressing different issues and yet and yet both of them are related right because it involves the rule of law
the system of due process that we've talked about so much on this broadcast and many others here on civic media, the notion that everyone is entitled to their day in court to present evidence, to make arguments to present your positions before judges who will administer the case, decide the case,
and resolve it.
Perhaps not in a way that's satisfactory to everyone.
That's why we have the appellate process as well.
But that system of justice so much on display just this past week locally.
right here in Wisconsin and in neighboring states, certainly throughout the United States, with respect to Judge Hannah Dugan, but also coming from our nation's capital, right there on Capitol Hill, that building built in 1935, once again, 90 years after it was established there, created there, constructed there.
the Supreme Court once again convening to determine whether or not the Constitution has vitality.
And if so, how do federal judges interpret all of that?
In addition to all of that, we've got some other rule of law news that you're going to talk about.
We have not chatted a whole lot about another due process matter involving the Menendez brothers in California.
We'll talk about the re-sentencing and the due process there.
And then indeed we're going to talk yet again about another civics matter.
It seems wonky, but it's
It's no less important than the other things.
We're going to talk about disparate impact, disparate impact when it comes to civil rights enforcement in this country, and another executive order that the president issued with respect to the way in which we understand civil rights in America will talk about why his proposal to abandon the notion of disparate impact.
is also potentially, if it stands, going to undermine our understandings of civil rights in America and the way that litigation proceeds in our civil rights courts, no less important than any of the other matters that we talk about, many other things on our docket in this edition of Amica Solar Review.
Stay with us for all of that and more.
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My name is Jim Santel, coming to you from the studios of Civic Media, joined in the studio with my trusted and outstanding producer, Greg.
Together we're going through these major issues, these major rule of law issues.
Important for all of you to note that in this edition of our broadcast,
Greg and I are not taking phone calls because, in fact, we're recording this early.
We're recording this early here in the studios of Civic Media, returning to the live show next week, but we've got a lot to discuss.
So write down your questions, write down your comments, your inquiries, and we will take those in future shows as well.
Again, delighted that you're with me and Greg for this program.
Promise that we begin with what happened just this past week before the United States Supreme Court.
What has this come from?
The case, of course, is called Trump vs. Washington.
It's consolidated with two other matters.
They raised the same issues.
And here's the way the United States Supreme Court described what it was going to do today.
Whether it actually did that is another question.
The Supreme Court, it said, is going to hear oral arguments.
These, once again, these opportunities for the justices to confront and indeed to quiz the lawyers who represent the parties in front of them about the merits of their positions, basically sparring with them.
Asking them to justify their positions that is the oral because it is spoken an argument You'd like to think they're not arguing the same way that you might argue around the dinnertime table But nonetheless an argument because you've got adversaries in that courtroom you hear from the petitioner the people who want something done you hear from a respondent who Presumably is opposed to that action and indeed there were three different attorneys three different attorneys went for the government.
He's the solicitor general of the United States
United States of America.
Third in position in the U.S.
Department of Justice, his name is John Sauer, S-A-U-E-R.
And then there were two other attorneys.
One of them is the Attorney General from the state of New Jersey, one of the many cases that are consolidated.
He spoke at length, hugely compelling presentation, equally compelling by a professor from Georgetown University, also an expert in these areas.
Again, talking with the justices about what should happen in terms of application,
of the 14th Amendment, Supreme Court saying that's going to decide whether to issue a partial stay to suspend, to stop a federal court's preliminary injunction that blocks the Trump administration's executive order called protecting the meaning and value of American citizenship.
That's a lot.
That's a lot.
Lots of language.
There needs to unpack that.
Basically, the issue, as you well know, is courts around the country, including coming out of New Jersey and other places.
throughout the districts of our land have said that the president cannot in fact proceed with the executive order that he issued on the first day of his presidency.
We'll talk about exactly what he did, explain what that's about, explain what the challenge to that's all about.
This past week, the Supreme Court taking up, taking up, as it turns out, not the merits of the underlying position advanced by our president that indeed,
Birthright citizenship should be limited in a way that has not been limited at any time in our nation's history, certainly since the passage of the 14th Amendment in 1868, but rather whether or not the decisions by those lower courts to stop the president from going ahead with his description, with his understanding of Amendment 14, whether that should receive
nationwide application, or instead, should it apply only, only in the specific districts, in the specific courts, in the specific regions, in which the judges are acting?
The question is, what about national applicability?
What about national injunctions?
Can a single federal district court judge, sitting in the Eastern District of Wisconsin, sitting in the Southern District of Texas, in the Western District of Washington, in the Southern
just from New York, you name it, there are 93 of them throughout the country.
Can a single federal district court judge issue a stay, which means stop it, issue an injunction with respect to something going on out there?
In this case, it's a presidential directive.
And can that order, that judgment, that opinion issued by the federal judge, does that have nationwide applicability?
Or is it applicable only, only in that jurisdiction?
The United States Supreme Court this past week spent almost, actually in excess of two hours, two hours debating that issue and spoke only about peaking.
peaking at the merits.
That was the phrase that they repeatedly used this past week, peaking at the merits, the underlying merits of what the president was saying.
And so what did the Supreme Court, what were they wrestling with, at least on the surface, and again, overlaid by this issue about nationwide injunctions?
Well, again, birthright citizenship, of course, verse to the 14th Amendment.
It states that individuals, of course, as you know, born within the United States or an area subject to his jurisdiction, are granted automatic citizenship.
You're born here geographically, you become a citizen.
And birthright citizenship, again, acquired in one of two ways.
It's fairly simple.
You're born within the United States or its territories, or you're being born to U.S.
citizens elsewhere in the world.
and you are united states citizen so on january 20th president trump again based upon some theories have been percolating out there we'll get to a little bit of that seizing upon those academic theories been banding about for a while although rejected by the supreme court
in the latter half of the 19th century issues this executive order saying that the 14th amendment was meant to extend a citizenship to everyone born within the United States but that the 14th amendment always excludes always prohibits from citizenship people who were born in the United States but not
according to the language of the amendment, subject to its jurisdiction.
Things lawyers love, right?
What does that language mean, subject to the jurisdiction?
Well, according to the president and his lawyers and the people who put together this executive order, if that person's mother was unlawfully, not lawfully present in the United States, father, United States citizen, or a lawful permanent resident at the time of the person's birth, or,
If that person's mother's presence in the United States at the time of the birth was lawful but temporary, for example, visiting under the auspices of a visa waiver program, maybe a student to work or a tourist visa, in other words, not
Permanently here again the father not a United States citizen then then that person does not get citizenship in other words if your mother Fundamentally was unlawfully here at the time she gave birth to you in the territory of the United States or if your mother was lawfully here
but here pursuant to a temporary order, a temporary visa, you are not a citizen.
That is a huge change from how we have understood the 14th Amendment and even before that period of time about citizenship and that at least superficially was what the Supreme Court was addressing.
In fact, in fact, they decided to focus on whether or not the injunction as to that applies nationwide.
I'll tell you more about that.
when Amicus Alaravu continues right after this.
My name is Jim Santel.
This is Amicus Alaravu coming to you
From the broadcast stations of Civic Media joined in the studio by my great producer Greg.
We are recording this in part because there is so much to take care of this week, but also anticipating taking your questions on any of this, your comments, your inquiries in our next broadcast next weekend, which will once again be live.
We are talking about one of the two major stories in the rule of law, and that is this major oral argument before the United States Supreme Court justice past week.
The justice is considering whether federal judges fundamentally in the end, this is the way they came down.
on defining what the hearing was all about.
Whether judges have the power to order temporary pauses, known as injunctions, temporary restraining orders, known as nationwide injunctions,
The issue of birthright citizenship formed the backdrop for this, but not the principal show.
And indeed, along the way, the justices picked up on the notion of peaking at the merits, peaking kind of underneath the major argument here to figure out whether or not we need to address that other issue to get to this larger issue about the authority of judges.
to make their decisions nationwide in application.
Now, now, again, the president, when the Supreme Court announced that it was happening, he said that he was happy, happy that the justices were taking up the citizenship issue when the Supreme Court announced that it was taking on this issue.
An important procedural note here that this is not, once again, among the so-called 65 cases that we've talked a lot about on this broadcast.
The things that the Supreme Court's going to be issuing major opinions on in the next six weeks or so.
We've talked a lot about those cases.
They're fully briefed.
They're argued.
Lots of lawyer documents submitted memorandums and oral arguments.
This case, like many others with increasing frequency,
A part of the court's so-called shadow docket is emergency application docket.
And indeed, this one moved with great speed.
The Supreme Court could have once again decided not to take it, could have let the lower courts stand.
That is the injunctions against the president's directive, saying you cannot go forward with your executive order, Mr. President, that limits, that restricts birthright citizenship.
They decided to take this and take it on a fast track.
This is a part of its emergency docket.
Indeed, they acknowledged that somewhat during the course of the oral argument as well, describing some of the concerns about not having litigated completely the lower court issue and once again, therefore having to peek under the covers a bit to figure out whether or not on the merits, on the merits of the executive order,
they should be deciding this larger issue and yet and yet the Supreme Court knows it's deciding all this in the wake of history along the way the parties did in fact may reference once again to history 1898 we thought this case this matter was all settled again the amendment itself in the wake of the Supreme Court 1868
About 30 years later, not short but not long, the Supreme Court decides this issue.
They've already told us what this is all about.
United States versus Wong Kim Ark.
It is still good law in the United States of America.
We'll see if it remains that down the road.
The court at that time, 1898, finds that a man who was born in San Francisco in this nation, but to Chinese parents is in fact a citizen.
And they affirm at that time the 14th amendment means what it says and says what it means So we have got we have got precedent here and yet and yet we've got disputes it comes out of this percolation of Argument about whether or not number one they won Kim arc case should remain precedent But second whether or not the whole concept should be revisited judges in Washington State and Massachusetts Maryland
and other places have issued these nationwide pauses on the policy consistent with what the Supreme Court has done in the past.
And again, all that history does loom large.
We know that the issue comes up.
It's been out there for a few decades.
It comes out of some academic views.
There's a fellow coming from Claremont Institute.
His name is Edward Ehler.
He'd offered some of these theories in some books published in 1997, 2003.
to make this a bit shorter in its genesis recently, its resurrection after a century of focus.
It has to do with a fellow named John Eastman.
You remember him well, John Eastman.
He was the fellow who got himself into a lot of trouble in advocating that the 2020 election was stolen.
It was recommended that John Eastman be disbarred over the episode in which he was promoting
fake slakes of pro-Trump electors who recall this well, urging people to believe that Joe Biden had not won the election.
Mr. Eastman still fighting criminal charges.
They're slowly making their way through the court in Arizona.
And still, although he's appealing it, appealing the withdrawal, the rescission of his law license, it's that fellow, that fellow who gets the ear of the current president once again in the first term, but again in the second term.
And this time in the second term, he gets the ear of the president who issues this executive order saying that in fact,
Birthright citizenship is not as broad as you think it is and in fact we should go back to this Ehrler academicism and find that indeed there are carve-outs for it for a variety of invalid and unsupported reasons but nonetheless that's where all of this comes from and today then we get what is supposed to be again some wrestling with that issue it is not that and the Supreme Court instead focuses again as I have said
on this issue about whether those lower courts and the decisions in which they have followed precedent and followed the language of the 14th Amendment, whether those injunctions that apply nationwide to districts and jurisdictions beyond the particular jurisdictions and districts of the district court judges, including here in the Eastern District of Wisconsin, the Western District of Wisconsin, the Northern District of Illinois, issues that will percolate throughout the nation how broad should this be.
And so you get
Your solicitor general, his name is John Sauer.
You may recall him as well.
He comes back from history too.
John Sauer.
John Sauer was the president's former lawyer.
John Sauer was the person who previously, in a non-government setting, argued before the Supreme Court, just about this time last year, actually April of 2024, argues ultimately, successfully,
on behalf of then-private citizen Donald Trump, former president Donald Trump, now again president, that a president should be immune from prosecution.
This is the attorney who stood before the Supreme Court and said that indeed the Constitution necessitates a finding that presidents are immune from prosecution and stunningly, shockingly, a majority of the Supreme Court, not without virulent dissent, agreed with him.
John Sauer is back.
And now he's in government.
Now he is appointed by the president.
He works for the president.
He works for the attorney general, the deputy attorney general.
Why?
Because they have said he does.
And in fact, his office works for you, and he is supposed to represent you.
And today, in this time of setting all these things on its head, John Sauer, John Sauer,
is representing you in a way that is contrary to the interests of many Americans, indeed opposing the views of many district court judges.
That's his approach these days as he appears before the Supreme Court, and indeed he spars.
He spars with the justices across the board.
He draws, among other things, a distinction between honoring the judgments of courts, the final things entered into a docket, and the opinions
the reasoning, the justification that underlie those things.
If you're scratching your head about that, so am I. He engages with Amy Coney Barrett during the course of this oral argument of Justice past week, a lot of stories, a lot of accounts about the thing called class certification, the differences between a class of people going ahead and a nationwide injunction, a lot of that along the way.
And a lot of this focus upon why it is, why it is that the government
your Department of Justice as voiced by the Solicitor General is so very much opposed, bright line opposed to a universal injunction.
In a case like this where it's important to know what the Constitution says and it's important to know in all jurisdictions and all districts how we understand that judgment of those districts applied across the board.
John Sauer takes a very bright line view again on behalf of
the government on behalf of you candidly if that is the way we understand his role that says that the universal injunctions here cannot stand and indeed applying his views across the board these kinds of things should never apply in cases like this.
It is significant to contrast that view to the view advanced by the
Attorney General of the state of New Jersey again.
He represents the opposition He represents those folks who say you know what there are times when national injunctions should not stand but times like this when they should and it has to do with the nature of the case the nature of the questions and this attorney general from
The state of New Jersey also spars with the justices about all of this along the way you get Katanji Brown Jackson sparring again with John Sauer sparring with the Attorney General about this notion of giving relief in class actions to people who are not parties to the case.
Does that make sense?
What about the situation here where effectively by prosecuting a case in a particular jurisdiction with particular plaintiffs, you're giving relief nationwide.
Lots and lots of back and forth on all of that led by Katanji Brown Jackson.
And along the way, along the way, again, some great language coming out of this oral argument, she talks about the argument being offered by the government as being a catch me if you can system.
promotion, advocacy.
And of course, John Sauer pushes back on that.
But nonetheless, that's the kind of commonplace language.
Katanji Brown Jackson says, can't we just say that the action is unlawful?
Stop doing it.
And if a district court judge says it's unlawful, shouldn't the action simply stop?
And in a situation like this, where we've got nationwide interests, should that not apply across the board?
Lots of back and forth.
Along the way, we've got Justice Alito early on.
asking the question that Sam that he has asked before that Antonin Scalia used to ask on a regular basis talking about standing he'd often ask what's it to you?
What's it to you?
Indeed, Samolito raises that in connection with the interests of the parties in a nationwide injunction versus a much more narrow injunction or a temporary restraining order.
Justice Kagan weighs in on this and she says if you can't enjoin something on a national level
How do you ensure that the law is being enforced?
She talks a lot as well with the Attorney General coming out of the state of New Jersey about the administrative problems affiliated with this.
And indeed, the Attorney General talks about the practical difficulties of establishing a split screen, if you will, more than a split screen, saying that in New Jersey and other places, if you begin to carve out
exceptions to birthright citizenship, you are causing a whole lot of problems, even between states that, again, administer programs differently, administer the rules and regulations of their states differently.
He talks about the practical problems of not having a universal injunction, a universal understanding of what the law means, and describes in great detail the reason why here, here in this case, a nationwide injunction.
is appropriate.
He concedes along the way in a way that John Sauer does not.
It's always helpful during the course of an oral argument if when justices, in this case, are judges before an appellate court or district court look at you and they say, once you concede that your position cannot apply in all instances, it's always wise to say, yes, there may be some exceptions.
And indeed, from New Jersey, we get just that.
The attorney general says, yes, there are times when nationwide injunctions are inapplicable.
And he identifies some of those.
We talk about specific cases, but he goes on to say here, here, that's not the situation.
He talks about three buckets of situations.
Lawyers love to talk about buckets of things.
principles and practices inside theories.
He talks about traditional equities and he says this is what this case is all about, what's fair, what's just to do.
He talks about the articles in the Constitution, the Congress, the Article I implications.
Congress can otherwise authorize things.
can interpret the Constitution.
He says that's not what's going on here.
He talks then about situations where it's really, really important.
And then, and then also nationwide injunctions should in fact be endorsed.
He talks about these three buckets and the justices spar with him about all of that.
and analyze this under the rubrics that he has presented.
Justice Alito and others, including, including Clarence Thomas, who speaks up as well.
He speaks first during the course of the oral argument, talking about history.
and about the applications of the past.
When we come back, I'll tell you more about history, what Amy Coney Barrett said once again about historical implications, and about something called an occupational disease, an occupational disease, that coming from the voice in the words of Justice Samolito, when Amicus, a lot of you, continues.
You're listening to Civic Media.
Find the latest news, information, and archives of all your favorite shows on the Civic Media website, civicmedia.us.
My name's Jim Santel, along with Greg here in the studios of Civic Media.
Necessarily talking about this major
Frankly, unanticipated argument as late as a few weeks and months ago before the Supreme Court about what birthright citizenship means.
Frankly, not as it turns out about what that means, but whether or not judges who are stopping the president from going ahead with his executive order
whether their injunctions apply just in their particular areas or whether those apply nationwide.
We've got a lot of adversarial argument for the Supreme Court just this past week.
Indeed, there is also tremendous argument from a professor from Georgetown University.
She's an expert in these areas who also engages in the same kind of back and forth as do the other lawyers about the merits and demerits of nationwide injunctions along the way it is.
Justice Sam Alito, who says, you know what?
There's this occupational disease out there.
It applies to judges from time to time in which they say, single judges say, I am right and I can do whatever I want to do because I know I'm right and the rest of the world has to follow what I'm saying is right.
I'm convinced I'm right.
Justice Alito says, and therefore, isn't that the problem he says to the professor and to the attorney general?
Isn't that the problem with nationwide universal injunctions?
He talks about there being 680 district court judges
And he says, you know what?
Sometimes they're wrong.
And he's right about that, of course.
We recall on this very broadcast, we talked about this major Fourth Circuit opinion of about a month and a half ago coming out of an appeals court there saying, you know what?
Judges are not perfect.
Appeals courts are not perfect.
Justices sometimes get it wrong, but the executive branch also sometimes gets it wrong.
That, of course, in that major Fourth Circuit Court of Appeals opinion coming out of the immigrant
focusing upon recognizing the imperfections of our government in all areas, but also recognizing the importance of how you remedy those checks and balances.
And again, arguments before the Supreme Court and indeed balances of powers.
And so Justice Alito raising that issue here with the attorneys on all sides.
Justice Thomas, as he often does, we will call well the guns cases that he has.
talked about Rahimi from just this past term.
We've talked a lot about that.
Bruin, his focus on the past as a way of understanding contemporary world in which we live and the validity of laws.
He talks about a bill of peace.
He talks about equity rule 48, the high courts of Chancery, the tax injunctions, and all kinds of other things out there, some of which are completely applicable.
Why?
Because you do look back at history.
You do look back.
at some things of the past for precedent.
And the opposition to that, the pushback from both New Jersey and also Georgetown is, well, those are good starting points.
They cannot animate our understanding of how things should work today.
Universal injunctions today would be very different from the code of the tax code, for example, in 1925 and other places in the past.
1789, a different type of structure in our government.
Therefore, Justice Thomas, the attorney, said, that's an important starting point.
You can base things, your decision on that, but that's not the end point.
You need to
build more generally upon, again, as the attorneys were arguing, the three buckets, traditional equity and congressional engagement and those cases where the standards need to be clear nationwide because the issue is so very important.
And that's the last point, which of course, however the Supreme Court comes down on this, probably not making a final determination about whether or not the underlying action by the parties litigating against the
Presidents executive order whether that is merit or not, but if they decide that the injunction does those injunctions do not extend Beyond the particular jurisdictions that national that national injunctions Universal injunctions cannot stand affects the applicability
of those cases wildly and opens up the possibility that as the litigation continues, the interpretation given by our president will take hold.
That's the reason why that is so significant.
The significance of this argument, yes, it is wonky, and yes, it is about the things that lawyers love to talk about when it comes to how you apply the law.
But ultimately, it does go to the authority of the president.
and his unilateral determination, again, contrary to all the history in our nation, that the 14th Amendment no longer means what it says and says what it means.
That's what this litigation is ultimately almost always about.
It also plainly has implications for many other cases in which federal judges are enjoining and not enjoining, are stopping and not stopping various actions by an executive, not just this president, but other presidents of the past.
And across the board, the litigation and the significance of national injunctions, universal stays on these cases cannot be overstated.
It is important to note in the end that Justice Katanji Brown Jackson spoke in the end about the posture of these cases, she said.
She wants to talk about whether the government continue to do what is clearly unlawful.
She talked about the government's obligation.
to show in litigation that there has been harm to the government by virtue of the injunction that has been entered.
What is the harm?
Sort of putting Justice Alito's comment, what's it to you on its head?
What is the harm and is the government not obliged also to show what the harm is in permitting the law as it has stood for
For time immemorial in our nation, what is the harm to the government in doing that?
A lot of focus on what the harm is to the litigants on the other side, just as Kenji Brown Jackson giving us, not the last word, but almost the last word in this oral argument.
It is difficult to read exactly what the Supreme Court has said about this, once again entirely possible, that judges and justices across the board, we're going to be continuing to wrestle with this, justices Kavanaugh, Barrett in particular, Amy Coney Barrett, may hold the answer as she often does.
When we come back, we'll talk about more rule of law issues, including of another federal courthouse right here in Wisconsin when Amicus, a law review, continues.
My name is Jim Santel, and yes, this is Amicus Hallar Review, our weekly weekend review and analysis of all things.
Rule of law related, justice related, a lot of focus upon the government, this edition, no exception whatsoever, noting importantly that we are recording this broadcast early, in part because of the significance of the subject matter, but also encouraging you, although you cannot call in while this broadcast is being heard throughout the radio broadcast breadth of civic media,
do write down your questions, write down your comments, your questions.
I suspect there will be a lot of them and we'll be sure to revisit those in our next live broadcast next weekend.
We necessarily talk this broadcast about another major rule of law story that we have spent a lot of time talking about here on Amica Solar Review, many of the other
Broadcast shows here on civic media, likewise focusing on the ways in which the rule of law doesn't just apply to things beyond our borders, not just out in Washington or other places, the Southwest border, other areas of our nation, but right here, right here in Wisconsin, right here, right here in our own neighborhoods.
And it is important to take that lesson away too, that these are not esoteric things.
Yes, indeed, they sometimes get very complicated.
We have necessarily had to undertake a nationwide, a national lesson, a series of classes, if you will, and how government works and how criminal constitutional procedure works to understand all of this.
That's what this broadcast and others are all about.
Let's talk about the application of some of those principles, yes, to the prosecution by the United States Department of Justice, your Department of Justice of Wisconsin Circuit Court.
Judge Hannah Dugan.
You know the facts of this.
You know that just this past week, following up on the initial arrest of hers on a criminal complaint, a criminal complaint issued by a magistrate judge, we talked about that in great detail, that included charges basically that she illegally, according to the allegations, helped assisted an undocumented immigrant elude federal authorities.
bringing her bringing that person outside of her courtroom and based upon the allegations in that criminal complaint she is arrested as we know she is brought to the federal courthouse she is arraigned initially on that criminal complaint and released why because as we have said
at such great length because it's the truth.
She shouldn't have been arrested in the first place.
She was not a risk of flight.
She is not a danger to this community.
We'll put on hold for now the question about whether or not even the charges against her truly are valid and will stand the tests of the judicial system.
But we know that in the wake of that process, she is released.
The Supreme Court, the Wisconsin Supreme Court places her an administrative leave.
They have not stripped her of her position.
Administrative leave while all of this is pending.
And we know as well that in the wake of the issuance of that criminal complaint, it only stays in place for 30 days.
And we know once again, invoking the Constitution for the second time in this broadcast that the
Fifth amendment to the Constitution requires what?
That if they're indeed are charges to be brought, they can only be brought upon a presentment to a grand jury.
Basically saying federal charges.
Well, yes, there is this process through the regulations and the statutes passed by Congress to establish and bring into the system someone on a criminal complaint.
Ultimately, for charges to last, for charges to go forward,
Only a grand jury, 16 to 23 people reviewing the same evidence or more evidence or less evidence can determine whether there's probable cause to believe that a crime has been committed.
And they, they are the ones under our Constitution, according to what James Madison wrote all those many years ago.
They're the ones who then issue an indictment if at all and indeed.
That is what happened in the Eastern District of Wisconsin Justice last week, a duly constituted impaneled grand jury.
They probably have worked on many other cases.
We do not know about exactly what their tenure is, nor should they.
The process, again, is in private.
We do not know who they are.
We do not know, at least to this time, exactly, exactly about their deliberations.
What we do know that there were witnesses brought in and out.
We've seen some of those reported on in the local media.
We know as well, we know as well that the information provided to the grand jury in support of their finding that there is probable cause, pretty much parallels what was in the criminal complaint.
And so indeed, when they issue this indictment earlier this week, the grand jury does find that there is probable cause to believe that the defendant here is in fact
Not presumed she is presumed innocent until proven guilty, but not proven guilty nonetheless a finding a probable cause that she has in fact engaged in violations of the federal law Significantly significantly.
That's the routine progress the point of the account and the significance of the event of this past week certainly that she appears in front of the magistrate judge again
And at that time, various procedural things happen.
She enters a plea of not guilty to the counts in the indictment against her.
preserving her right to defend against him and again she has said through her lawyers that they are going to vigorously and effectively and very proactively as they already have going to be defending against the allegations against her in that indictment.
She appears before the magistrate judge and he takes her plea of not guilty and significantly among other things establishes a trial date.
The trial date established is July 21 of yes this year.
highly unlikely, highly unlikely that this case will go to trial by that time.
There is a statute in the federal group of statutes, criminal procedure here, that prescribes that a defendant in the federal system who is charged by an indictment needs to be tried within 70 days of their initial appearance.
The realistic aspect of this is that because of motions being filed, of other things that is highly likely that July 21 date will move dramatically, certainly at a minimum into much later this year, maybe even into next year, as the parties now work in what's called this pre-trial.
This pretrial stage of the proceedings and indeed what's that all about?
Well, this is the time again when the government again by virtue of some obligations under some Supreme Court cases is obliged appropriately to provide the defense with all the information it has all the Discovery is what it's called all the documents the reports of interviews those other kinds of things that are necessary for the defense
And we'll be a part of the prosecution.
No, no surprises here.
That's the idea.
Let's tell, again, pursuant to the fundamental practices of our nation.
Let's tell the defendant what he or she has been charged with.
Let's tell the defendant the bases upon which these charges are going to go forward.
We're going to identify the witnesses, the documents, the events, the photographs, all the kinds of things that the defendant needs to know.
to repair her or his defense.
That's our system.
And that is also prescribed effectively by an interpretation of our Constitution that goes back a very long time.
So that happens.
And that's presumably underway right now.
In addition, of course,
Process contemplates the filing of motions and yes indeed the government can file motions things called motions in limine motions that are going to be addressing various evidentiary issues related to the trial they can do other things and Also, of course those motions can be filed by the defense and those motions can be in various ways They can attack centrally the language of the indictment saying for example that the very bones the outs of the structure the the within the four corners of the
document, they do not allege a federal crime under the statutes.
They can attack the language of the statute as being improper as incomplete.
They can go on to address other things significantly related to the conduct of the government in this matter.
And I anticipate that probably those kinds of motions as well are forthcoming, not only in connection with the mechanisms through which Judge Dugan was initially arrested,
but also the publication in the public domain of that photograph of her in handcuffs.
All of that, all of that going to the conduct of the government, which can also be a subject of emotion to dismiss, to impose sanctions, to impose limitations, all kinds of things can be raised in this pretrial period by which the defense is appropriately putting the government to its proof.
Properly putting the government to
come forward and explain exactly what his position is.
And again, judges, magistrate judges initially, federal district court judges ultimately decide those motions.
In this case, the case has been assigned, the trial has been assigned to Judge Lynn Adelman.
I practice in front of him fairly routinely on both criminal and civil cases.
He is a federal district court judge here in the Eastern District of Wisconsin.
And so as these motions come in, he will be the one.
probably a first cut on them by the magistrate judge, but ultimately he will be deciding issues related to the substance of what this trial is going to look like.
He will be deciding whether this case should be dismissed upon motions filed by the defense.
He'll be deciding those motions filed by the government as well, all as this process, this due process.
about which we've been talking about a whole lot recently.
This is what it's all about.
Let's not have any surprises.
Let's tell everybody about the merits of the case and then ultimately in a court of law in front of a jury.
pulled in from the public, the community generally, they will determine whether or not the government has proved its case beyond a reasonable doubt.
That's where we are right now, and it is in that setting one of the most significant things of the week has also happened.
And that is that among the very first motions, it is actually the very first motion that counsel for defendant Hannah Dugan has filed even before the arraignment of this past week, right out of the gate.
Frankly, hours, hours after the indictment is issued by the grand jury, the defendants, Hannah Dugan, through her attorney, file a motion dismiss.
And the upshot of this is in the first sentence.
This is no ordinary criminal case, Judge Dugan says.
The judge is no ordinary criminal defendant.
And while the petition, the motion, the document filed with the court goes on to describe some of the events and circumstances that are described also in the complaint and also in the indictment.
The reality is that this is a motion in which the defense says, before you get to any of those other petitions that go to the substance, maybe even the conduct of the government, take a look at this on its face and determine judge
that two things are the case.
Number one, that Hannah Duggan is immune from this prosecution by virtue of her being a Wisconsin Circuit Court judge.
And second, that the concept of federalism under the 10th Amendment of the Constitution also precludes the government from prosecuting the case.
When we come back, I'll tell you more about exactly what that motion says, why it's so important, and what we can anticipate again as this case proceeds.
Here on Amicus, Allah Review.
This is Amicus Salarov you coming to you through the broadcast avenues of civic media joined in the studio by my producer wonderful support and outstanding Production from Greg and we are coming to you in a pre-recorded version today because
of the significance of the things we're talking about, two major stories, but some others coming up later in this, the second hour of Amicus, a law review, focusing right now on the content of this motion to dismiss right after the indictment is issued against Judge Hannah Dugan, Wisconsin circuit court judge, now in the federal system.
She is a federal defendant in the federal district court in Eastern Wisconsin.
Her attorneys, even before the first appearance, and that's significant because what they're saying to the judge is this is so important.
This is such
a threshold issue by virtue of filing this, even before the first hearing in which a schedule for the filing of motions is established.
Even before that, they say, Judge, this is so important.
You need to address this at the top.
And again, Judge.
Edelman and the magistrate judge not going to resolve it right away But the very timing of this motion to dismiss based upon its content is not lost on anyone The motion itself says the problems with this prosecution are legion but most immediately the government cannot prosecute the judge because she is entitled to judicial immunity for official acts and goes on to say interestingly citing citing Trump versus United States from the pen of our chief justice
that established for the first time in our nation's history that a president has immunities here.
They're citing that very statute, that very, that very order entered by our Supreme Court in support of the notion that Judge Dugan likewise benefits from
Judicial immunity, when it comes to official acts, the motion says immunity is not just a defense to the prosecution to be determined later.
When those other motions are filed, but when the jury gets in front of the bar of the court and determines whether or not the proof is sufficient by a jury or court, it is an absolute bar at the start.
at the outset.
And that's what the point of this motion is all about.
Not only, not only is there immunity, but also federalism issues have to be resolved.
The motion says swiftly, because the government has no basis in law to prosecute her at all right out of the gate.
Nothing more to be done here other than to bring this to a conclusion.
That's the upshot of this motion to Smith.
And again, goes on to describe in a very intelligible and accessible six, seven page motion.
It is readable.
it is digestible.
It goes on to say that, you know, exactly what happened here, including her motives, her subjective motivations for doing what she allegedly did, they're irrelevant because judges are entitled to absolute immunity for their judicial acts.
Without regard to the reasons that they did these things, we're not analyzing right now exactly what prompted her to do this, if indeed she did that.
and in fact since the early seventeenth century and carried on through common law in the united states judges judges have been entitled to immunities that should apply here the essence of immunity is its possessors entitlement not to have to answer for their conduct in court why because as judges you're immune from that it's not just a defense to liability absolute immunity effectively
prevents the prosecution from going ahead at all.
And beyond that, beyond that the second piece of course of the motion focuses on the 10th amendment.
Now, I suspect that you all know what that is because you learn that in grade school, maybe beyond that, maybe in other civics and social studies classes.
The 10th Amendment, again, says this, the power is not delegated to the United States by the Constitution, by this very document in which the 10th Amendment appears, nor prohibited by it to the states in this document are reserved to the states, respectively, or to the people.
Anything not mentioned here,
Not specifically excluded, prohibited to the states.
everything else the states have responsibility for, and so do you.
And so the motion goes on to focus upon what describes as the deeper, running deeper problems of the indictment.
Immunities aside, the motion says, the indictment runs afoul of the 10th Amendment and constitutional principles of federalism.
Again, this notion that we are divided into states and a federal government, and the federal government has great powers, but so do the states, and those powers not specifically
civically enumerated in the Constitution are reserved to the states.
That includes, the motion says, the general police power.
The states retain it.
The federal government, the motion says, does not have it.
Unsurprisingly then, the American judicial system empirically is almost entirely the realm of the states, and very much aware of that fact.
Civil jurisdiction is limited.
And that's why, for example, right in the middle of this motion, the defense attorneys say that's why we're 94% of criminal cases filed in this country are in state courts.
That certainly is true of Wisconsin and the Eastern District as well.
And the point here is just this.
The motion goes on to say the government's prosecution reaches directly into a state courthouse, not a federal courthouse, disrupting active proceedings, and it interferes with the official duties of an elective judge.
A state defines itself as a sovereign through the structure of its government and the character of those who exercise government authority.
Judge Dugan, the attorney's right, was elected by the people of Milwaukee County to adjudicate their disputes and ministered what?
The laws of Wisconsin.
The federal government violated Wisconsin's sovereignty.
When it disrupted Judge Dugan's courtroom and it is violating Wisconsin sovereignty now with this very prosecution, the court should end the violation of Wisconsin sovereignty and dismiss the indictment outright.
As a practical matter, the attorneys go on to say we'll stand ready to file briefs and to participate in evidentiary hearing on this if the court feels that's necessary.
But the reality is that this is so clear on his face, you don't have to get to any evidence as you look at the indictment, dismiss this right now on the basis of immunity and the basis of a violation of federalism.
That's the petition being made
to Judge Edelman and the courts generally, barred by official acts of immunity and judicial immunity, regardless they go on to say, as this prosecution moves forward, she reserves her right.
She will file more motions.
And indeed, those are the kinds of motions that I described before.
More is certainly coming if indeed Judge Edelman decides to deny this motion.
But if he does, if he does grant this and says, you know what, you're right.
Judge Dugan, federalism has been violated here by virtue of an overreach, and indeed you're immune from prosecution.
One or both of those, he can dismiss this case outright.
And Judge Edelman, as many of us in the legal community know, has always been intellectually acute and bright and focused, and he is open to those kinds of arguments that may seem on their face to be extraordinary, but in fact in the end are not.
And so we'll look to see what Judge Edelman does with this motion as the litigation, the prosecution of Judge Hannah Dugan continues in the federal court here in eastern Wisconsin, as does this broadcast here on Amicus, a law review on the broadcast stations of civic media.
This
We are pre-recorded this weekend.
But we are talking about the major decisions and major actions in the areas of rule of law and justice in our nation, both in our nation's capital and right here in the eastern district of Wisconsin.
Let's head west.
Let's head west to a state court, a state court that happens to be in California, an issue that's percolating up for a long period of time, frankly, decades candidly, but has reached a
court resolution, at least in part, just this past week.
Yes, indeed, this involves the decision by a Los Angeles judge, a state court judge, they're not federal court, to re-sentence Lyle and Eric Menendez to life with the possibility of parole.
with the possibility of parole.
You know what this case is all about.
In 1996, the Menendez brothers, you may recall this, maybe not, found guilty of first degree murder and sentenced to life imprisonment without parole for killing their parents, Jose, who's a music executive in Mary Louise, her mother.
Her name, she went by kitty.
It was their second trial at which they were found guilty of first degree murder.
Two years earlier, a mistrial was declared after two separate juries, one for each brother, impaneled, deadlocked on a verdict.
that two trials proceeded very differently.
Again, important to understand the significance, part of the reason I'm raising it, of pretrial decisions made by judges on motions that determine what's going to happen at a trial.
In the first trial, defense lawyers on behalf of the Menendez brothers claimed that the brothers, you may know this well now based upon the news reporting, had killed their parents after years of what they described as sexual and physical and emotional abuse by their father.
and that they feared for their lives.
Basically the defense of we, we did this because we needed to defend ourselves against the...
criminal behavior and abusive behavior, the abusive behavior of their father.
Their mother, they said, also knew about the abuse but didn't stop it.
Interviews with the jurors after the mistrial revealed that some of them questioned how serious the abuse had been and to what extent it justified their actions.
They by that time had admitted they did the murders early on during the course of the investigation.
They said to authorities, we know nothing about this.
Eventually, they admitted that they did in fact kill their parents, but again, raise this defense of self-defense effectively based upon the things that their father was allegedly doing.
to them at the time in the second trial.
And this is the reason why this is so important, leading to their convictions.
In that trial, the brothers were tried in front of a single jury, no longer bifurcated, no longer two juries for two brothers.
Lawyers for the brothers were limited in what the evidence could be.
The judge, his name is Stanley Weisberg, prohibited the lawyers in the second trial
Unlike the first one, from using the abuse excuse is what it was called at the time.
Essentially, leaving for jurors only one of two options.
Either you quit them...
and you find that that defense is legitimate or a murder conviction, and the jury went with the latter, convicted them and sentenced them again to life imprisonment without the possibility of parole.
Well, of course, all kinds of things happen.
You know some of that.
We've got some evidence that has emerged in recent years.
There's various documentaries talking about one of the members of Minuto came forward and said that, yes, Menendez had sexually assaulted him in the same family home.
There are also these various Netflix projects, including a couple of programs, one of them called Monsters, the Lyle, and Eric Menendez story, another one called the Menendez Brothers that focused again.
upon what had happened way back when and whether or not indeed they were prompted to whether this this abuse excuse as it was called at the time is legitimate and brought the public's attention back to Lyle and Eric Menendez who again spending their lives in prison along the way it's significant to note that yes indeed they have acknowledged that they killed their parents but nonetheless continue to maintain that they were the victims of
horrific sexual and physical abuse.
While in prison, it is significant as well that they did an awful lot of things, not only for their own rehabilitation, but reaching out and engaging with other defendants and other prisoners to improve their lives as well, the kinds of things they have done quite literally in the decades since they were convicted.
And so what happens?
After several hearings and several delays, just this past week, Lyle and Eric Menendez, again, not without a lot of procedural history, involving two different district attorneys, were resentenced this past week to life with the possibility of parole, unlike their first sentence.
They moved a step closer, therefore, to freedom after more than three decades behind bars for killing their parents.
The decision...
By a judge.
He's a Los Angeles state court judge.
His name is Michael Jasek.
J-E-S-I-C of the Los Angeles Superior Court now makes the brothers eligible to go before a parole board.
So they're not a prison yet.
Parole board can also now review whether or not they are entitled to be paroled.
That's the reason why the things that they have done over the period of last three decades are important.
Whether they are contrite, whether they're acknowledging what they have done, even as they continue
to maintain as they do that they were the victims of sexual and physical abuse at the hands of their father, their mother looking in the opposite direction.
And our hearing has already been scheduled for next month.
on a separate clemency petition that's being considered by the governor of California.
His name, as you know, is Gavin Newsom.
The new Los Angeles district attorney, his name is Nathan Huckman, H-O-C-H-M-A-N.
He was elected on promises to take a harder line on crime, had argued against a lighter sentence, and he opposed the position of the prior district attorney in support of a resensing.
Judge Jessica
already rejected some multiple requests by D.A.
Hochman to withdraw a sentencing petition that had been forward and advanced by the D.A.'
's predecessor.
And so the resensing effort, the clemency petition, now the primary legal paths to leading perhaps to the brother's freedom
In recent years, again, Lyle, who is now 57 years old, Eric is now 54, again thrust back into the news, not only by virtue of these social media defenders who have talked more about their cases, but also those TV series and documentaries, and an awful lot of other presentations.
And indeed, during the course of the hearings before the judge, people in support of their present release came forward, including family members.
acknowledging that the brothers had committed these acts, family members come forth and talk about the rehabilitation of the two brothers, describing that as exemplary, highlighted the created programs and counseled and mentored others inside the prison, pursued higher education behind bars.
and others again come forward during the course of the hearing itself in support, in support of their resentencing.
All of that happening again, underscoring a few different things here, underscoring again the importance of decisions made by judges in anticipation of trials.
One wonders out loud if those decisions made by the trial judge, the second trial around, if that judge at that time had permitted them.
to introduce evidence of their physical and sexual assault if the result would have been different, underscoring again the motions that are made by
Petitioners by defendants by the government as well in this pretrial setting and then also the due process issue which we talk about at great length Here's another example of the systems that we have in place in this case.
They're all state related The federal system has the same state system.
How does this work?
Comes upon a petition right of now a former district attorney Not embraced by the present district attorney, but you've got a judge who independently pretty much says I want to do this I want to
what the prior district attorney has presented to me.
He has a hearing, an evidentiary hearing.
He hears from witnesses.
He understands more about what the brothers in this case have done for the past 30 years.
They talk more about the merits of what happened.
what happened during the course of their time in prison, the good things that they have done even while they have been incarcerated, plainly revisiting as well, the horrific events, the horrific events involving the murders of their parents 30 years ago, and the judge in the end makes a determination that they should be sentenced to life with the possibility of parole, which again opens up more due process for them, right?
And that process includes again reviewed by a parole board and other matters that could indeed follow in the wake of that important decision made just this past week.
Menendez brothers not yet freed now in the hands of the parole board.
clemency petition also pending but nonetheless an underscoring of the possibility the possibility even as our sensibilities to things like sexual assault and physical abuse as those change over time things that we may have decided on differently decades ago can be revisited not always with the success not always with clarity in terms of the way that the results are accomplished but nonetheless that's what our system is about
advocates for final point, the notion that the law needs to be vibrant and needs to be responsive to contemporary understandings of justice and truth and decency and humanity and all those good things, a living and breathing law including the Constitution of the United States of America, the Constitution of the state of California, and indeed the Constitution
of Wisconsin as well.
All of that, all of those lessons coming out of the Menendez matter now back in the administrative system, the judicial system, the parole system there in the state of California.
Let's go back, let's go back once again to Washington DC and indeed yet another executive order.
That is significant when it comes to humanity and decency and understanding how it is that our civil rights enforcement in this nation should proceed We know because we've talked about this in prior editions of amicus a law review that there are concerns about what's going on right now inside the civil rights division of the US Department of Justice often said by other attorneys general of all parties from
presidents, both Republican and Democratic, that if you look to the Civil Rights Division and you figure out what they're doing and all the important assignments given them, that gives you some sense about the vitality, the heart, the lifeblood of the Department of Justice generally.
Why is that important?
Why do they say that?
It's because the Civil Rights Division handles so many things that affect so many people.
The other divisions also, absolutely, they're also significant.
The criminal division, the civil division, the environmental division, tax,
all kinds of things out there.
National security, antitrust division, all hugely important.
But the civil rights division, what do they focus on?
They focus on things like voting rights.
Voting in America, ensuring that the Voting Rights Act is enforced, housing, the Fair Ours Housing Act is enforced.
Yes, indeed, the Civil Rights Act, also of the mid-1960s, signed by Lyndon Johnson that gives so many provisions, so in the statutory codification there by Congress, that ensures that in employment and access to so many parts of our national experience that people are treated with decency and their civil rights are enforced.
They do all of those kinds of things inside the Civil Rights Division.
They also do things related to policing in America.
These are the folks who also determine if indeed there's a basis to do a
local specific review of the conduct of a policing entity, a sheriff's department, a city policing agency.
If they're arresting in a way, if they're imposing fines in a way, if they're enforcing the law in a way that's contrary to our Constitution, it is the civil rights division that comes in as it did here in Milwaukee and in other cities around the nation in recent times.
doing assessments and either suing to get those remedies that are needed or also engaging in consent decrees to ensure that those things are remedies.
That's the kind of stuff that the Civil Rights Division does.
It is huge enforcing disability rights, enforcing rights of LGBTQIA citizens, enforcing rights that are familial in nature, all kinds of things, religious freedoms, a capacity to engage in the freedom to observe your faith as
you choose, all of that.
So many things that we pull from the Bill of Rights are enforced by the Civil Rights Division concerning that the Civil Rights Division recently is seeing a huge departure from its ranks of attorneys who traditionally have done that work, plainly those vacancies would be filled.
by an attorney general who has identified a different kind of commission for that unit within the side of the Department of Justice.
She is also taking her guidance from an executive order issued by the president recently.
When we come back, I'll tell you about something else that President Trump has done to strip away a legal tool that has been key to civil rights enforcement for a long, long time in America.
All of that here on Amicus, a law review.
you
My name is Jim Santel, joined here in the studios of Civic Media by Greg Miles, standing producer.
We are finishing up in this our last segment that does not include in this edition of amicus your questions your comments but soliciting those in our next weekend's broadcast keep those in mind and we will follow up on that especially about this story which finishes out our presentation our program this weekend and it has to do with one of those executive orders among the tens of them that have been issued by the president up to this time little noticed issued last month with the spate of other orders
targeting equity policies.
This one, President Trump ordering federal agencies, including especially the Department of Justice, to abandon the use of a long-standing legal tool.
And it is the concept of disparate impact.
I'll explain that in just a moment.
Disparate impact liability to root out discrimination against minorities.
And it is undeniably a huge shift.
again, presumably adopted by an assistant attorney general in the civil rights division who will follow this directive.
In his expansive order, Donald Trump directed the federal government to curtail the use of this disparate impact liability theory.
It has been and remains in many sectors a core tenant.
It's used by for decades, decades to enforce the civil rights act way back from 1964.
by determining whether policies and practices of governments and other entities disproportionately disadvantage certain groups.
It's very key.
A disparate impact test crucial.
in enforcing key portions of all those acts I described before, including prohibitions on federal funding, discriminating based on race and color, national origin.
For decades and decades, it has been relied upon by the government, and yes, by your Department of Justice, to root out those discriminatory practices in, once again, housing, education, policing, basic access to the trappings of life, employment, all kinds of things,
Prosecutors like me and others who again also did a quite a bit of civil litigation as well.
I will tell you the disparate impact test is one of the most important tools for uncovering discrimination because it shows how a seemingly neutral policy, something that on its face may not strike you or even me as being discriminatory.
or violative of the law, somehow is a different outcome.
In practice, when this seemingly neutral policy is put in place, it is a different outcome for different demographic groups.
And it reveals the inequities by virtue of the impact, thus the name disparate impact upon groups.
It is crucial in showing how criminal background and credit checks affect the employment of black people, for example.
How physical capacity tests inhibit employment opportunities for women.
how zoning regulations could violate fair housing laws, how schools in the education setting have have meted out overly harsh discipline to minority students and children with disabilities, all because seemingly superficial and non-discriminatory policies have a disparate impact and irregular impact upon certain communities.
That's what this is all about.
And so, of course, it has been attacked for a long period of time, but it has also been endorsed in
endorsed across the way.
Universally, we know that the executive order, which is likely to face challenges now pushing back on this, limiting its application, falsely claimed that the disparate impact test is unlawful.
And the order goes on to say it violates the Constitution.
In fact, in fact, that's just plain wrong, Mr. President.
The measure was codified, actually put in legislation by Congress in 1991,
And it was a bit impelled by the Supreme Court.
Yes, the same Supreme Court, the same entity we're talking a lot about on this broadcast as recently as what?
2015, 10 years ago, they endorsed and embraced this notion, this doctrine that is animated and led to remedial results that ensure that the American experience is accessible to everyone.
Vital tool, the Supreme Court said, in the work of protecting civil rights, cited in a December, 2024 dissent.
By who?
By Justice Sam Alito.
Sam Alito embraced it in 2024 and now our president has said that in fact it needs to be abandoned and discredited.
He has said, for example, in this order, he calls it the restoring equality of opportunity and meritocracy.
That goes plainly those arguments he's made.
about the country becoming too focused on its racist history and the protections from the civil rights era now have led to reverse racism against non-minority groups.
We have seen that a lot, not only from the president, but others.
And the concept here, of course, is that our civil rights law necessarily need to apply to everyone and that disparate impact theory that doctrine should be applied.
Instead, the president said, disparate impact liabilities are part of a pernicious movement, he said.
to transform America's promise of equal opportunity into a divisive pursuit of results, preordained by irrelevant, immutable characteristics, regardless of individual strengths, effort, or achievement.
That's what the President wrote.
when he issued this executive order, I would offer that people of all political views and perspectives should abandon, should reject, should say that that language alone is not only offensive, it's contrary to what our nation is all about.
And indeed, we are a nation of people of diversity, people with immutable characteristics.
They're set forth in the laws of our nation, our employment laws, our housing laws, our voting laws, all the laws that are passed, they embrace the fact that
people of immutable characteristics makes us strong.
And those actually improve our strengths, our achievements, and our efforts to achieve something that's important to the American experience.
Nonetheless, Donald Trump, again, in this executive order, certainly to be attacked.
This will go into federal court as well, and it will be challenged, as will all the others.
And as a part of our injunction function aspect of this broadcast, we'll tell you more about what happens to this
and all those other executive orders that continue to animate much of our focus here on Amicus Allora View, here on the broadcast stations of Civic Media.
Have a good weekend,
everybody.
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