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This is amicus a law review and my name is Jim Santel I am your host on this broadcast of the civic media radio stations throughout the state of Wisconsin and beyond Delighted and honored as always that you have chosen to spend some of your weekend time with me and my producer max where together We're also taking your phone calls your comments your questions Your inquiries on the subject matters that we will be addressing on this broadcast that phone number is eight five five
752-4842, one more time, that's 855-752-4842.
As always, on Amicus Law Review, we take our commission, we take our mission from that word, Amicus, that is both Latin and it is also a legal term meaning friend.
The concept, the idea behind this broadcast, always to provide information and insight that is helpful to you, to our community and understand
standing the world around us specifically focusing on rule of law issues and government issues and justice related issues.
This broadcast this weekend is no different.
We will talk about the specifics of that agenda, which is both ambitious, but also achievable with your involvement, with your participation in our broadcast this weekend before we get to that and identifying specifically what is on our list of major topics.
about which we will be discussing.
It is important to note, of course, that this is Memorial Day weekend, Memorial Day, originally known as Decoration Day.
First National Observance of Memorial Day occurred way back on May 30th, 1868, in the wake of the Civil War.
It was proclaimed by Commander-in-Chief John Logan of the Grand Army of the Republic to honor Union soldiers who had died in the American Civil War.
And although many national observances followed that, and those are local and county and state and nationwide, it's also significant to note that the National Cemetery Administration, which is indeed a division of the Department of Veterans Affairs, today credits a woman named Mary Ann Williams with originating the idea which we see around Wisconsin, around the nation.
this weekend, of screwing the graves of soldiers with flowers.
That credited to Mary Ann Williams.
She came up with the original idea of doing that, again, shortly after the Civil War, recognizing the significant deaths, the contributions made by soldiers to that time, including specifically focusing, of course, on the Civil War, official recognition of the holiday spread among the states,
1873, New York becomes one of those states that officially recognizes Memorial Day and specifically, specifically, Decoration Day.
And the World Wars turn it into a day of remembrance for all members of the U.S.
military, of course, not just those from the Civil War and that prompted Congress, of course, as late as 1971, ultimately to change the name from Decoration Day to Memorial Day, recognizing those who fought in our military
died in service to our nation, observing the ultimate sacrifice that they made.
Most historians reflect that about 1.3 million soldiers have died since the time of our Revolutionary Wars of this nation.
It is significant to note that not only because of the losses that they have suffered, but because of the reasons why those losses
today remain not in vain, remain important indeed, critically important to understanding our nation.
The reason why those people, those members of our military gave their lives, the ultimate sacrifice, which we memorialize and remember and decorate this weekend is because they meant to preserve something.
They meant to enforce something, mean to establish something here in our nation.
And that includes, of course,
in many ways the fundamental principles upon which we have been a nation since the time of the Declaration of Independence, certainly since the time of the Constitution as well.
Things like due process and equal protection.
and yes, the rule of law as well.
And so it is important that on this Memorial Day weekend, we reflect on the contributions, the profound contributions made by American citizens generally and very specifically with great particularization, the losses, the sacrifices given by our military to preserve democracy, to preserve our republic, to create the very systems upon which we
rely today and which we benefit from to this day.
That includes those fundamental constitutional principles which we discuss all the time on this broadcast and other broadcasts.
of civic media.
Once again, delighted to have you participate in that discussion of civics and constitutional concepts and the roles, for example, of the Supreme Court and the legislature, the executive branch, all of those things bundled up inside rule of law considerations.
Today, necessarily consistent with the commission that is given us by virtue of our recognition of Memorial Day, of Decoration Day, of the sacrifices made by
military individuals, women and men alike throughout our history is significant to note that we're going to be spending some time talking about some major things that the United States Supreme Court did just this past week as a part of our constitutional regime, our constitutional structure, three cases in particular involving religion.
involving the roles of federal agencies and yes indeed involving immigration and specifically immigrants in America.
We'll spend some time talking about what other federal judges did just this past week in connection with
once again, immigration and deportations, an attempt to bring the Department of Education rather to its end, and yes, an attempt by the executive branch to also affect the conduct, the behavior, and the instruction at Harvard University by our president.
We'll talk about what a
federal district court judge did just late this past week in connection with that fight, that battle between Harvard University and our president, all of that coming up here on Amicus.
A lot of you, important to begin, however, with a discussion of a fundamental civics concept.
Something that, again, came into our attention once again.
We have talked about it a lot here on this broadcast.
It is the concept of habeas corpus, and yes, indeed, you know, you know where we're going with this.
Just this past week, a committee, a duly constituted committee of the United States Senate.
As a part of its oversight responsibilities, one of the things specifically
two members of our Congress to do.
This is the checks and balances.
This is one of the ways in which the Congress checks the executive branch.
And yes, indeed, also the judicial branch.
There are those occasions, though they're rare, when members of the judiciary, including the Chief Justice, will appear in front of members of the Congress to talk about the operations of the courts.
More frequently members of the executive branch cabinet level officers others involved in non executive agencies an important thing to know that we have and recognize Supreme Court weighing in on that very issue this past week
those agency representatives also appear in front of the Congress what to do what to accomplish again the oversight there are founding fathers anticipated all of that in anticipation perhaps of the passes of
passage of legislation, which indeed is exactly what the Congress is supposed to do, determining what kinds of laws we should have in our nation as we look forward in about 17, 18 months from now, celebrating the 250th anniversary of our nation.
Throughout that time, a legislative function, local levels, county levels, state levels, and certainly federal levels, deciding what the laws are.
executed by an executive branch and, yes, interpreted by a judicial branch this past week as a part of that oversight responsibility that directive given by us to our representatives, our elected representatives in the Congress.
The United States Senate conducted a hearing with the Secretary of Homeland Security.
You know who that is.
That's Christine Ohm.
And she appeared there as a part of this oversight process to provide information to the Senate about why
her agency is doing, obviously, much in the spotlight these days as Homeland Security issues, specifically these issues related to deportations, loom large, not just in Washington, D.C., but in virtually every district in our nation.
Kristi Noem appearing in front of that Senate committee this past week and engaging in some discussion.
with Senator Maggie Hassan, H-A-S-A-N.
She's from New Hampshire.
She is a Democrat, if that makes a difference, and it shouldn't, because Senator Hassan was this past week talking about some fundamental concepts that should indeed and must animate every aspect of our government, that is, the Constitution and principles decided under it, specifically the concept of habeas corpus.
In particular, applicable, of course,
to the Homeland Security Department.
Why?
Because it is involved, not exclusively, but in a major way, especially now, in issues related to the bodies of deportees, people who are identified and, yes, are being deported from this nation.
not just in this administration, but in virtually every other contemporary administration, Republican and Democrat, they've all done it.
And they've all done it until now, until now with some imperfections, but they've done it until now based upon the legislative commands given to the executive branch, based upon the constitutional principles that animate all of that.
And so this past week.
in connection with this exchange between Kristi Noem, our Secretary of Homeland Security, and Senator Hassan, the question arises, what does habeas corpus mean?
What does it mean?
What do those Latin words mean?
What does the term mean?
And when asked about that by Senator Maggie Hassan, this is what our Secretary of Homeland Security said in response.
She said, habeas corpus is a constitutional right.
that the president has to be able to remove people from this country.
That is wrong.
That is inaccurate.
And indeed, without missing a beat, Senator Hassan said that's incorrect.
There was some over talking a few things that were confusing back and forth.
But the ultimate
point of the exchange was that Senator Hassan needed to school our Secretary of Homeland Security and the fundamental constitutional principle of habeas corpus.
She said accurately, she said habeas corpus is the legal principle that requires that the government provide a public reason.
for detaining and imprisoning people.
If not for that protection, the Senator went on to say, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason.
Habeas Corpus, Senator Hassan said, is the foundational right that separates free societies like America from police states like North Korea, and she could have added,
many others.
It is important that on this broadcast of Amicus Allah Review, we spend some time pulling that apart, understanding as a friend of the community what habeas corpus is all about.
The senator got it right.
The secretary got it wrong.
And when we come back when we talk more about the reasons why habeas corpus is important, especially, especially on this Memorial Day,
People died for that concept.
It is important to understand the significance of it when we continue here on this
broadcast.
My name is Jim Santel.
I am your host for this broadcast, joined in the studios of Civic Media by my producer, Max, and together we're taking your inquiries, your questions.
at number 855-752-4842.
You can also drop a line in our chat box and let us know what you're thinking about in connection with our service as a friend of the community, providing information necessarily beginning this broadcast with some fundamental instruction that frankly,
Every grade school student probably knows something about.
High school students know a lot about.
College students know everything about, but our Secretary of Homeland Security plainly does not know about, and that is the concept of habeas corpus.
Interestingly, our founding fathers, the people who put together the Constitution, mentioned it only once.
And no, it is not.
It is not in Article 2, which is the executive branch authority of our Constitution.
It's not there.
It is not a right
of the president to deport people it instead is a right granted to every resident, every person, every citizen who is here in the United States of America.
The Latin habeas corpus basically literally means you should have the body.
You should have the body.
Let's parse that about and know that Senator Son got it just right in terms of the process.
It is one of these foundational, historical, and yes indeed contemporary principles to promote the rule of law and ensure the delivery of justice in our nation and in other nations around the world by seeking a writ, an order from a judge, a judicial officer, a writ
of habeas corpus, a petitioner, someone who is detained, someone who is imprisoned, is asking to be released from that detention, that imprisonment by a judicial officer, by the person to whom you are seeking that relief, following, following what an opportunity to know about the charges that are,
prompted the detention in the first place to defend against those charges by doing what?
By presenting evidence, right?
By ensuring that the court, the judicial officer, knows who you are, understands as you should as well the charges against you, and has an opportunity to evaluate.
The evidence, the testimony, the documents, whatever you've got that suggests what the government is doing is wrong, is inaccurate, is premised upon false information, and therefore the body, the corpus, should be released by that judicial officer.
That's habeas corpus.
A deprivation of personal liberty, which as I've often said, is perhaps one of the most significant, if not the most significant thing that a government can do.
And that's why this writ, the writ of habeas corpus, the concept of habeas
Corpus petitions and seeking that writ is that the core of our existence as a nation, as Senator Hassan got it just right, it is the reason why once again 1.3 million Americans
have died on battlefields to preserve who we are and what we are.
Habeas corpus is one of those core meanings, those purposes, those definitions, those procedures that make us who we are.
And so, and so it is in article one.
Yes, that's the legislative branch, secretary Noam.
The legislative branch is section nine clause two of the constitution that says the privilege, that is the privilege to petition for Habeas corpus.
to a judge, to a judicial officer shall not be suspended, not be revoked, unless when in cases of rebellion or invasion, the public safety may require it.
In other words, only when there is a true catastrophe that threatens the very existence of the nation, the kinds of things that we have seen very rarely in our nation's history, we saw it.
in the 1860s.
Yes indeed, Abraham Lincoln suspended habeas corpus briefly, but notably, notably also then secured the approval of what?
The United States Congress, because it is in that first provision.
of our Constitution, that it is the Congress that Congress, it has to give its express action and its explicit approval for a suspension of habeas corpus, because it's so important to the lifeblood of our nation.
It is not the kind of thing that a president can do unilaterally.
It is an authority.
It is a provision in article one of the Constitution, section nine, clause two.
that enables only the Congress to suspend it in times once again of rebellion when the very nature of our nation, our country, is at risk of being lost, invasion by a foreign power, the public safety, the very security of our nation is at risk.
And under those circumstances, yes indeed, for a limited period of time,
that petition that capacity to go into a court and seek relief through habeas corpus can be suspended we are not we are not in that position right now and so indeed the congress has no intention legitimate congress has no intention of suspending habeas corpus the president has no capacity to do it and no secretary gnome it's not a capacity of the president to deport people
whom he identifies as a threat to our nation.
That is wrong.
That is inaccurate.
And it is important to understand, once again, on a Memorial Day weekend, Secretary Noam, that this is one of those things that people died for, our military service members, women and men, across our nation's history.
for nearly 250 years have died for this brave principle.
It is important that you understand, Secretary Nome, the significance of that and understand it as you undertake this important work in terms of supervising and overseeing immigration policy, migration policy, the enforcement of it, which, yes indeed, is given to you
by the Congress by virtue of enabling legislation, establishing the Department of Homeland Security, establishing your position, it is a core function, a core function that you understand exactly what the language means and that you're able to testify before Congress intelligently.
It is good that we have people like Senator Hassan in the United States Senate who know what that's about and others know it as well.
All of us know it because we are Americans who appreciate the significance of these fundamental rights, including things like equal protection, yes, due process, much related, much related to habeas corpus.
All of us appreciate and embrace that indeed.
I would venture that although we may disagree with the things that they do, the nine members of the Supreme Court, each one of them also knows what habeas corpus is.
They deal with that on a regular basis.
And indeed, just this past week, our Supreme Court has been engaging in
Some of its core functions in deciding some cases much of it without explanation But deciding cases that are important to the future of America again the kinds of things for which our military officers and servicemen died on battlefields to protect Let's talk about the application of basic civics concepts
in the Supreme Court just this past week, the Supreme Court on Monday of just this past week as a part of its continuing oversight.
Yes, it's involvement in checking, in checking the Department of Homeland Security and the executive branch on many of these decisions that it's making with respect to Venezuelan and other migrants and immigrants and their deportations to nations now across the planet.
Supreme Court on Monday, permitting the Trump administration, at least for now, at least for now, this is not the dispositive end all decision, but for now, permitting the Trump administration, yes, Kristi Noem, to remove protections, removing protections previously set legislatively, permitted by the Biden administration,
for nearly 350,000 Venezuelan immigrants who had previously been allowed to remain in this nation in the United States without the risk of deportation under a program, a legislative regime called temporary protected status.
Temporary protected status established by the Congress shielding 350,000 immigrants under the Biden administration.
As we return, we'll tell you exactly what the Supreme Court did
in justifying or not explaining what it was doing here.
All important issues here on Amicus, a law review.
This is Amicus, a love of you.
My name's Jim Santel.
I'm your host this hour and next hour as well.
On this Memorial Day weekend, thinking about the ultimate sacrifices made by about 1.3 million Americans in the many wars of our nation to preserve our democracy, to preserve and promote the interests of justice and the rule of law in our republic.
That is also one of the assignments, of course, of our United States Supreme Court, among the other branches, checks and balances, all of that in the Constitution just this past week, our Supreme Court doing some things that are a part of its assignment, that is decide cases and measuring, measuring the merits and demerits of cases in front of us.
Among the things that they did on Monday of this past week, again, very much in the ambit, in the category of
deportation issues and immigration issues that loom so large in our national discussion these days.
On Monday, the Supreme Court permitting the Trump administration to go ahead, as is in its discretion now, to lift the protections for about 350,000 Venezuelan immigrants who had previously been protected under a program under a legislative structure called the Temporary Protected Status.
What is that all about?
Well, temporary protected status program.
It was enacted by Congress and signed into law by President George H. W. Bush.
Many years ago, what does it do?
It allows migrants from nations.
that have experienced national disasters of various kinds, armed conflicts, or other extraordinary instabilities to live and work legally, legally in the United States of America.
Presidents then can invoke that statutory regime to protect
certain categories of people who are here again fleeing their own nations because of those disasters, those conflicts, those instabilities that prompt them to leave their countries and come here.
And so what happened was that during the Biden administration, during the administration of Joe Biden just completed, Joe Biden invoked that statute and gave protection for about 350,000 Venezuelan immigrants.
Now what happened was that in March of this year, actually even a month before that, in February of this year, Christine Nome, again the Secretary of Homeland Security, terminated that program under the new administration.
And she basically removed the protections provided by the previous administration for these hundreds of thousands of Venezuelans
properly legally here in march in march about a month after that administrative executive action by our secretary of a judge named edward chen he is in the federal district court in san francisco blocked that move said no you can't do this the administration effort to remove those protections while the case is moving forward you cannot do that he said that the plaintiffs here that is
Petitioners among those hundreds of thousands of Venezuelan immigrants now no longer protected under the concept of temporary protected status that they they in fact have a legitimate claim to make they said they were likely to succeed on the merits in showing
The Secretary's actions had been, in his words, unauthorized by law, arbitrary and capricious.
That is a legal way that lawyers love to invoke that kind of language as do judges and saying, it's not without reason.
It's not without a basis.
And it cannot be identified as...
justifiable within the four corners of the legislation.
And also he says, motivated by unconstitutional animus.
Animus means anger, it means dislike.
Arguably even means racial animus.
Looking at people who are other than people in this nation and saying that because of that, we are going to remove from you.
the protection that you would otherwise have under temporary protected status, once again, unauthorized by law, arbitrary and capricious, motivated by unconstitutional animus.
He then went on to find that terminating the initiative, as the secretary had attempted to do a month earlier, would, in his words, inflict irreparable harm on hundreds of thousands of persons whose lives and families and livelihoods will be severely disrupted.
Indeed.
the effect of removing those protections on what is being identified as the largest immigration decision.
made in our nation's history affecting a greater number of people ever before in our nation's history, a profound impact upon the individuals, their lives, families, and livelihoods.
But he goes beyond that.
He says beyond just the individual impact of removing this protection established by the Biden administration, he goes on to say it would cost the United States billions in economic activities, plainly talking about the impact of removing a huge swath.
our employment population from our nation and but also he said in your public health and safety in communities throughout the United States of America he says the effects of this this unconstitutionally animated action by the secretary have these profound effects
And as a result of that, he enters a preliminary injunction, says, stop doing it.
What happens is the Ninth Circuit Court of Appeals, that is the larger appeals court out there in the west portion of our nation, affirms what Judge Chen has done.
In March, they say, yes, indeed, this has got to be stopped, at least for now, at least for now, until we can try this and determine whether or not indeed the government has a legitimate...
position to articulate, whether the 350,000 Venezuelans are right about this, that's what we have trials for.
And the lower court, the appeals court, both of them say, while the litigation is pending, let's keep everything in place.
Let's make certain that we do not deport these people until we're certain, until we're certain, if ever, that there's a basis upon which to do it and that this particular statute, again, the temporary protected status statute has been properly invoked.
by the Biden administration, by the Trump administration.
Let's take a look at that.
Well, the administration, the Trump administration is not satisfied with that, as is the normal course of conduct.
You wait until the case is tried.
There are other processes.
Yes, indeed, you can appeal.
And they did appeal to the United States Supreme Court.
This a part of the emergency docket, the
Solicitor General of the United States, John Sauer, runs into the Supreme Court as he can do procedurally and asked the Supreme Court to take this up on an emergency basis.
Do something right now because if you don't do this, the very nature of our government, the very enforcement of our laws will be compromised.
Stop this from happening.
And what this is, is the stopping of the protection.
So we've got a couple of...
Negatives there right double negatives stop the stopping in other words permit us to go ahead Permit us Supreme Court to go ahead with this decision that the secretaries made to lift to lift the protections as to these 350,000 Venezuelans and permit us to begin to go ahead deporting them Even while the litigation the final litigation the trial on the merits of whether or not
The statute is properly invoked.
All of that is still pending.
All of that is still underway.
And indeed, this past Monday, the Supreme Court, the United States Supreme Court, on its shadow docket, its emergency docket, did in fact, did in fact permit the Trump administration to go ahead for now, plainly going to revisit this when the case is finally resolved.
But while the case is pending, the Supreme Court said, you
Mr. President can go ahead.
You, Madam Secretary, can go ahead and begin to deport these 350,000 Venezuelan immigrants significantly as is a part of this docket, a source of increasing concern every single week when this continues to be invoked.
The court's very brief order is unsigned, giving no reasons, which again is typical when the justices rule on emergency applications.
No vote count is listed.
Although it's significant to note that Justice Katangi Brown Jackson noted that she would have denied the administration's request.
So we don't know.
We don't know exactly what the numbers are.
We don't know the justification for this because this is the way that the so-called shadow or emergency docket worked.
The
Case obviously continues to proceed apace at the lower court, at the trial court, presumably at the appeals court as well.
And as it does, of course, the Supreme Court now can begin, the administration with the imprimatur of the Supreme Court can begin to remove these people from our nations.
status here.
The significance of this, that Judge Chen's opinion, again, all but overturned, again establishing this preliminary injunction, Judge Chen saying the provision did not permit him from deciding whether the secretary was authorized to vacate the protections.
We're talking about specific issues here inside of the application of the law.
The Solicitor General in opposition plainly to what Judge Chen had done tells the Supreme Court that the scope of Judge Chen's ruling, this is echoing a complaint that the administration has made to justices repeatedly in its request for their intervention, the scope is too broad.
And again, as we talked about just last week in our broadcast, once again, the Solicitor General raising this concern about the national, the across the board invocation.
of these kinds of orders.
The solicitor general saying the district court entered nation-wide relief, supplanting, removing, supplanting Secretary Noam's assessment of the national interest and area into which a district court is uniquely unqualified to intrude.
That's what the solicitor general wrote.
He asked the justices to act promptly and they did.
He said the courts immediate action is especially warranted because protracted litigation will effectively preclude the president from enforcing a critical component of the administration's immigration.
policy.
Now lawyers for the challengers say just the opposite and they say no reason to move this quickly and they're outraged that this happened.
They respond by saying that the law creating the program strictly limited early terminations of protections and they said the secretary's action was not authorized under the law.
Go on to write and say to the Supreme Court, nowhere does the statute grant the secretary this kind of authority to vacate or rescind an extension.
They add that oh by the way
the Solicitor General's approach would leave federal courts powerless to stop even the most blatantly lawless agency action whether to restrict it in this instance or expand it.
And of course we know the Supreme Court has filed and addressed in its filings, in this case its orders, other kinds of situations like this in its emergency docket in addition to the nature of this particular order that is affecting arguably the largest group.
of immigrants ever before in our nation's history, 350,000 people now subject to deportation previously protected under the law, a huge change in the status and condition of major numbers of people who are here in our nation.
In addition to that, it is increasingly troubling that our Supreme Court makes this decision without providing information to you, to me, to all of us about the reasons for their doing it.
Give us some sense.
Mr. Chief Justice and others about the reasons why you're doing this.
Let us understand the reason why this suspension has been accomplished.
Give us a reason why the petitioners are wrong and why the Solicitor General is right.
Tell us that.
and yet we don't get that in this latest case coming out of the Supreme Court just this past week.
Two other cases also coming out of the Supreme Court's litigation docket just this past week.
This one not in the area of deportation, immigration, but once again going to fundamental things like due process and yes indeed equal protection and the fundamental notions that we embrace as Americans in our Constitution have done so for nearly 250
This is the First Amendment.
A major First Amendment decision, or I should say probably more accurately, a non-decision made this past week because it may in fact come up again.
Having to do with the establishment clause of the Constitution, the very first amendment to our Constitution, as you know well, says the government.
It basically says the Congress, but it's interpreted to mean the government generally.
No government entity in our nation shall make a law respecting an establishment of religion, goes on to say, or prohibiting the free exercise thereof.
That's the first set of words.
That's the first phraseology in the First Amendment to our Constitution.
It is the establishment clause.
It's the free exercise clause.
It says basically what you know all too well.
when it comes to government action, hands off.
This is fundamental separation of church and state that has been a part of our nation ever since the Constitution was established and enforced by the United States Supreme Court and federal courts and state courts and others legislatively endorsed repeatedly.
by our legislators, elected by us, also by judges appointed and elected to uphold the Constitution of the United States, affording everyone in their own discretion
their capacity to do what they would like when it comes to their own faith and the exercise of that and indeed prohibiting the establishment, the creation of any religion by the government when we come back.
We'll talk about how the Supreme Court interpreted that all-important language under the Constitution here on Amicus, a law review.
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 is Jim Santel.
We are talking in this our first hour all about the United States Supreme Court and its actions just this past week implementing yes the Constitution invoking principles important to the present and future status of our Republic just this past Thursday issuing what can only be considered one of the major decisions of at least recent years when it comes to the First Amendment right.
to freedom of religion, both the exercise clause, but most importantly, the freedom of establishment.
to be free from government intervention in establishing, creating, enforcing, and even promoting religion.
We do not do that in this nation.
We have not done that since the time that James Madison and George Mason and others wrote that important language passed by our very first Congress, establishing that there will be no established religion in the government.
The Congress and other entities of government will do nothing to promote, certainly not to denigrate or to destroy religion.
We do not get involved in religion and do not do anything affirmatively to enhance religion
in our nation.
Well, this past week again on Thursday, the United States Supreme Court did something very interesting.
It's by virtue of a decision made by Amy Coney Barrett to recuse herself in this case.
Significant to note, that's one of the reasons why this decision, this opinion, this ruling by the Supreme Court is important.
It's because, yes indeed, there is still this notion of recusal inside the Supreme Court and Amy Coney Barrett
who is also our associate justice here in the seven circuit from the Supreme Court.
Amy Coney Barrett looked at this situation.
She said, you know what?
I know one of the petitioners.
I have a relationship, a professional relationship with one of the attorneys who's petitioning in front of me.
in this case.
And for that reason, for that reason, I'm not going to participate in this.
And she accuses herself.
And that's the right thing to do.
A lesson for the other members of the Supreme Court, when they have situations like this, where you've got particular relationships with people appearing in front of you, whether they're friendships or professional relationships, that's what you do.
High marks as recently has been the case to Amy Coney Barrett, who makes her way in the United States Supreme Court.
What that does is
It reduces to eight the number of people deciding this case and yes indeed the result of that Is it an evenly divided Supreme Court?
Four members say yes four members say no to the specific issue presented to us under this Establishment clause case before the Supreme Court and the question the question is whether or not to allow Oklahoma
Oklahoma, the state of Oklahoma, this case comes from the Oklahoma Supreme Court, appealed as you know directly from the Supreme Court to the United States Supreme Court.
Can Oklahoma use government money, tax dollars, to run the nation's first religious charter school?
There in that state it would teach a curriculum infused by Catholic doctrine in a tie the court split four to four over the Oklahoma plan and again Amy Coney Barrett creates that four to four by saying I shouldn't be involved in this appearance of impropriety I don't want to be involved in it.
She's right to do so and so the decision is split
And what that means is that by virtue of a split decision, the court is obliged to say, again, based upon that four to four tally about how each remaining justice voted, the court then says that the lower court ruling, that is the Oklahoma Supreme Court ruling, is affirmed.
It is affirmed by an equally divided court.
And that's what we hear from the United States Supreme Court.
We do not once again get any reasoning from any of the justices.
that either the four deciding to support the lower court decision or those opposed to it.
But it does mean that that deadlock keeps in place that Oklahoma Supreme Court ruling.
The state court, the Oklahoma Supreme Court, what had they done?
They had blocked a proposal.
that initially was approved by a committee, a group there in Oklahoma, a proposal for the Oklahoma School District.
It's called the St.
Isidore of Seville Catholic Virtual School.
It was going to be operated by the Archdiocese of Oklahoma City and the Diocese of Tulsa, and it was aimed to incorporate Catholic teachings into, as it said in its petitions, in every aspect of its activities.
That's where the issue comes in.
Can you use state
Tax dollars?
To do that, can you support a charter school like this that has, as one of its core missions, the teaching of religious doctrine?
Can you do that?
Can you do that properly?
We thought we had resolved this.
We thought it should not have been a significant issue.
But indeed, charter schools across the country are seeking to be independently run, often by nonprofits, but based upon this notion that even though they may be doing just that, they're entitled to government money's tax
state monies to support what they're doing.
And they were arguing in this particular case that they would be a private school, but in contract with the government, taking monies from the government, that's the question.
The issue is likely to come up in front of the courts yet again as more charter schools around the country test this principle.
this particular case of course going back to all kinds of issues the charter school case of course one of the two or three that's pending in front of the Supreme Court we've talked about this case previously the brief ruling here again provides us with some insight into where the Supreme Court may be these days just because of the significance of the four to four split now an awful lot of people
speculating about who among the four on either side.
It is likely, of course, that Amy Coney Barrett, very clear that Amy Coney Barrett did not participate in this, but likely that three others, we know them well, that is Katanji Brown Jackson and Sonia Sotomayor and Elena Kagan, almost certainly they voted, they voted again in opposition to the granting of this right of the school to get the money, basically to support, to support what the Oklahoma
Attorney General wanted to have accomplished here, significant aside, the Oklahoma Attorney General was in opposition.
was in opposition to affording this school the opportunity to get state funds to run its operation.
They were the ones coming to the Supreme Court saying, please, please do not permit this to go forward.
So we know at least three of the justices.
We likely know who they are.
The question is, who's number four?
And again, it can't be Amy Coney Barrett, unlikely it's Sam Alito, unlikely it's Clarence Thomas.
And so you're left with at least three others.
Those, of course, include Brett Kavanaugh.
and Neil Gorsuch.
Perhaps the most likely interpretation we don't know for sure is, interestingly, the Chief Justice, John Roberts.
Now, during the course of the oral argument on this case, which we talked about at great length, you may recall that discussion, John Roberts, interestingly, was all over the map.
He was asking questions of both sides, those who wanted to support the school.
And those who said, no, this is an inappropriate constitutional establishment of religion.
And as we come back in our second hour, we'll tell you more.
about what happened in this particular case, why it is it's so important understanding what's going ahead when it comes to the jurisprudence of establishment clause cases in America, and then we'll talk about yet another case coming out of the Supreme Court just this past week affecting, affecting the rule of law and justice in America.
All of that as our broadcast here continues.
This is the second hour of our weekend broadcast every week addressing the major issues in the rule of law and justice.
and the delivery of justice to America and in many ways around the world as well as much of our court work these days is focused upon our status and our presence in the international community as well.
We know our Supreme Court is a part of that, not only the structure of our government, but also
That movement, that effort by all of us to ensure that democracy endures and the Supreme Court represents one of those structures that provides checks and balances to the other branches, the legislature and the executive branch as well, and also has this responsibility for determining whether the ultimate final decisions of state courts.
state courts are consistent with the constitution and indeed as a part of our review in this broadcast of amicus hello review talking about three major cases that the supreme court decided sort of didn't decide this past week in connection with the establishment clause of the constitution prohibiting the congress prohibiting government from establishing or doing anything else that promotes enhances encourages
religion in America.
This is once again the idea of separation of church and state.
The Supreme Court has in front of it just this past week as it has had in previous weeks.
The oral argument very colorful, not giving a whole lot of indication about how the Supreme Court could go on this in an Oklahoma case.
It stems from this dispute once again over the approval of a Catholic virtual school.
It aimed to provide an online school to bring Catholic education to families across rural Oklahoma.
And after the state's charter school had been approved and approved by a group of people responsible for reviewing these kinds of things initially, the state's attorney general stepped in and he sued to stop it.
And he was arguing that a religious public school like this would violate would violate the First Amendment's prohibition on government establishment of religion and the state's Constitution ban on spending public money To support religious institutions of this sort relying upon the precedent of our nation again prohibiting the establishment of religion the Oklahoma Supreme Court
agrees with him, it rules against the school, says you cannot take those monies, you cannot be a part of the public school regime.
Majority saying in these, the words of the Oklahoma Supreme Court, it would create a slippery slope that may lead to the destruction of Oklahoma's freedom to participate in the religion of their choice without fear of government intervention.
The Supreme Court there went on to say this particular school is a public charter school.
and writing beyond that, that the state law that allows such schools requires them to be non-sectarian.
Can't be religious in nature if you are a state public charter school.
Under both state and federal law, the majority of the Oklahoma Supreme Court said the state is not authorized to establish or fund St.
Isidor.
Can't do this.
A very clear statement, again by the
Attorney General, the executive branch, if you will, of the state of Oklahoma and also by the Supreme Court.
And when this gets to the United States Supreme Court, again, by virtue of the decision by Amy Coney Barrett to recuse herself, again, that's based upon her affiliation, her knowledge.
She has a close friend.
Who is?
a professor at Notre Dame Law School who's leading this advocacy on behalf of schools like St.
Isidore.
So Amy Cooney Barrett recuses herself and that leaves eight justices to decide the case.
They split four to four, leaving the question, who's the fourth among the four who said no to the school?
And yes, and yes to what the attorney general and the Supreme Court of Oklahoma said,
An awful lot of speculation in the wake of this, and it may have been John Roberts.
The reason why that's so significant is just this.
Because John Roberts, as you know from our previous discussions here on this broadcast, has been an advocate for a new and novel and very pro-religious.
pro-pro-religious approach to these kinds of cases and a whole series of cases, decisions by the Supreme Court in recent years.
It has been John Roberts who's written many of these opinions, who's also put together majority opinions that say that the question is whether or not the decision by the government, by the Congress, by whatever the entity is, it's whether or not you are discriminating against religion.
Is the conduct that you're approving
in some way discriminatory against faith groups, religious groups.
And if you think about it, what that means is that religious entities will almost always win because any exclusion, again, based upon the fact, the conclusion that to give, for example, monies to a school, give monies to a church to support construction or other activities of that church, and deciding not to do that,
That by its very nature is a low-level form of discrimination, right?
And so in virtue of all of these cases in this new standard articulated by the Chief Justice, religion has won.
It's caused an awful lot of people to say, gee, do we still have a separation of church and state?
Is that prohibition on establishment still there?
If in fact you can...
Permit the use of monies and other support by a government under all these circumstances where to do otherwise To decide not to do that would be discriminatory in fact what he has done in recent cases is to supplant the long-standing standard and that's been about Entanglements again another big word you all know what that means it basically the question is gee
Based upon what's going on here, what is the nature of the government action that is purportedly establishing or supporting or promoting religion?
Is that conduct so greatly entangled somehow, involved in participating in the religion itself that it cannot stand?
Maybe some de minimis, some small nature of involvement is okay.
But if the entanglement really does support religion, establishes, somehow encourages that faith, then it cannot stand.
And that has been the standard again until Chief Justice Roberts in recent years came along with this, no, that's not right.
That's not the right standard discriminatory practice instead.
And so it is very interesting to see that if indeed it is the Chief Justice who made
his decision to go along with the other three that he is now in not a majority, not a minority, but presumably looked at this and said that, yes, indeed, this is a situation where the establishment clause does prohibit this kind of entanglement between the state of Oklahoma, funding through tax dollars of a religious institution, does prohibit that, that maybe, just maybe.
He is altering somewhat his view on the standard to be used in future religious cases.
Maybe it was simply that in his own deliberation this was not discrimination against this particular school.
We do not know but it certainly is interesting to see that a
Supreme Court Justice, the chief, who up to now has been very pro-religion and again receiving a lot of criticism from many sides for being on the side of beginning to erase the establishment clause in the Constitution.
Here, here, he basically affirms it.
And again, the language of the Supreme Court affirming the lower court's decision by virtue of a tie at the Supreme Court, that happens in this four-to-four decision of just this past week in front of
of the United States Supreme Court, other cases, at least two others affecting and implying some applications of religious issues and concerns.
We're still waiting for those.
Those will be coming forth in the next six weeks or so.
Here on this broadcast, we'll continue to monitor all of that.
But this past week, an interesting case, not deciding definitively because of the four to four split and also then opening up the door.
The future cases were the same kind of thing will be tested likely in the coming term Maybe the term after that this is not the last word on it and it may well be that in those future cases Amy Coney Barrett will not have their accusal issue which will send her back into a situation where she can deliberate and decide
along with her eight colleagues on the merits of a case like this.
Lots of things to come up in this particular issue.
First Amendment, once again, on the docket of our Supreme Court just this past week.
Also on the docket of our Supreme Court this past week, and yet a third case, a third case that's significant, monumental even when it comes to the authority of the presidency under the Constitution to act.
As this president and other presidents in the future may act we have talked before about this thing called the unitary executive theory Advanced by the president a couple of months ago when he issued that executive order saying that if you've got any legal interpretation any legal understanding of any federal agency whether it is inside the executive branch or those Independent agencies that are out there created by Congress any determination you make about what the
law is that is contrary, contrary to the law as I say it, is not permitted.
Or it may well be that the Attorney General would give you an opinion on something that she has to say.
That is an invocation of this unitary executive theory that anything that's not, that
particularly executive, legislative in nature, or especially judicial in nature is by its very nature, executive in nature, and the president has complete control over, yes indeed, not only what the law is inside those independent agencies, but also who is hired, who's fired, what is the composition of the leadership of those agencies, who's in charge?
And the Unitary Executive Theory, you should know, not only announced and articulated again in Project 2025, an attempt to codify it in one of those executive orders that the president has issued.
earlier this year but now also in that big so-called beautiful bill it's also incorporated into this legislation that's now being considered now by the Senate of the of the Congress it is out there and indeed this past week the Supreme Court without identifying it by that name also addressing one consequence of adopting this unitary executive theory where the chief executive the president has complete authority over every
agency, including those, including those intended and designed by the Congress to be independent in nature.
And so, what did the Supreme Court do just this past week when it came to at least three different agencies, a bit of a split decision, in the end, in the end, a decision that sends both some
concerning signals about the future and also at least one right now, somewhat satisfying determination about the future of one of those independent agencies.
Let's begin with that positive news.
It has to do, yes, that's right, with the Federal Reserve and the chair named Jerome Powell.
Before the Supreme Court this past week and one of its major decisions as we come back here in Amicus, a law review, I'll tell you what the Supreme Court did there and in other agency considerations as this broadcast continues.
you
My name is Jim Santel and this is Amica Solar Review, our weekly weekend review of all things related to the rule of law and justice and the promotion of a republic through those trappings of our fundamental principles and our constitution and beyond.
Spending some good considerable amount of time this weekend talking about three things that the Supreme Court did just this past week.
Yes, in the areas of the Establishment Clause and to the First Amendment.
Also having to do with the authority of the Secretary of Homeland Security with respect to
temporary protected status of some 350,000 Venezuelan immigrants.
And now talking about a decision, a split decision made by the Supreme Court when it comes to the authority of the president to fire the heads.
the leadership, the members of the boards of directors of independent agencies, and those are three in number.
There certainly are many more than that out there, the three in number before the Supreme Court in particular.
Supreme Court talking about something called the Labor Relations, National Labor Relations Board, the NLRB, they are responsible for an awful lot of administrative rule setting, and yes adjudication at an administrative level of things related to labor in America, no small thing.
no small thing.
Also the Merit Systems Protection Board, that acronym is the MSPB.
Those are the folks who make decisions about another very significant issue in our national discourse.
That is, circumstances under which personnel the employees of our federal government are hired and fired, terminations, all kinds of things.
They review appeals of decisions to terminate employees in the federal government.
We have seen a lot of that.
We've got those agencies.
And then we also have the Federal Reserve.
You know that well.
These are the folks who, among other things, are responsible for our economic status and our condition, among other responsibilities.
Many others out there, but the board, including its chair right now, that's Jerome Powell, sets interest rates, right?
And those affect dramatically all kinds of things.
And because of that and the nature of, yes, what the NLRB does and what the MSPB does and the Federal Reserve does,
all of those created independent of the executive branch.
And that's created by the Congress to be independent because you don't want an executive, regardless of what their political focus and their animation is, you don't want the president to be affecting things like...
decisions on personnel or decisions on how labor should in fact be administered and adjudicated.
You don't want a president making decisions about interest rates.
All of those things should be done in a nonpartisan
non-political way based upon what based upon the merits of the cases in front of them in the instance of those two agencies, the MSPB and the NLRB, you want to make decisions inside the Federal Reserve based upon what you think are the best interests of the economic vitality and strength of our nation, not dependent upon what a president may want to do when it comes to things like inflation and other matters related to the cost of living in America.
And so this past week,
somewhat wrestling with all of those issues, the Supreme Court issues what can only be described as a somewhat of a split decision giving the president what he wanted, what he wanted in connection with the NLRB and the MSPB, but also saying keep your hands off the Federal Reserve.
Supreme Court this past week basically shielding the Federal Reserve from the president's push to fire some top officials again at these independent agencies.
and also along the way, also along the way, saving that when it comes to the Federal Reserve, that because it is a uniquely structured quasi-private entity, that's the language of our Supreme Court just this past week, because of that, Mr. President, you do not have the authority to fire Jerome Powell.
The reason why that issue is significant is because in recent times The president has sent some conflicting signals about his happiness or his disappointment with the chair of the Federal Reserve He posted on April 17th that Powell's termination cannot come fast enough and then on April 22nd a few days later He said that he's no intention of firing the chairman of the Federal Reserve Well, all of that again in the public domain the Supreme Court basically this past week saying hands
off the Federal Reserve, why?
Because it's a quasi-private entity and it's uniquely structured.
And so at least for now, Jerome Powell, who's also maintained very publicly that the president has no capacity to fire him.
He has said that publicly.
Many others have said that in the commission given the Federal Reserve, it's an independent authorization from Congress.
Can't do that.
You cannot terminate members of the board.
You can't terminate the chair of the board.
Powell has said that appears that the Supreme Court agrees with him.
And so at least with respect to that independent agency, hands off, Mr. President.
But in once again, this unsigned ruling, again, there is the problem, not a lot of explanation aside from this specific reference to what the Federal Reserve is these days.
The unsigned ruling does grant the President.
The authority when it comes to the National Labor Relations Board and the Merit Systems Protection Board to terminate to terminate the jobs of Gwen Gwen Wilcox who is a board member of the NLRB and Kathy Harris who's a board member of the MSPB can terminate their their their positions and The order the decision of this past week basically extends
a temporary decision again entered by the Chief Justice way back in April 9th when he let Donald Trump remove those two and override the job protections that the Congress has created for both roles to insulate them again from White House control.
The Chief Justice previously saying, yes, indeed, you can go ahead and fire them.
Both Wilcox and Harris had argued that letting the president remove them would leave Powell vulnerable.
And the same concept that would involve terminating them would apply to the Fed board and the chair as well.
But the court said, again, it's unsigned order that it disagreed with Wilcox and Harris's contention.
Number one, that the president did not have the authority even in the
interim basis to fire them and also that they are just like the Federal Reserve and the contention of course by Wilcox and Harris was that arguments in their cases having to do with their agencies necessarily implicate they wrote the constitutionality of four cause removal protections from members of the Federal Reserve's Board of Governors and other members of other agencies.
Now what are they talking about there?
Well again the legislation
that establishes all of these independent agencies.
Yes, it says yes indeed.
The leadership, the board members can be removed, but only for cause.
Some sort of dereliction in duty, failure to do what they're supposed to do, some negligence, perhaps some malfeasance in office.
It's a for cause standard.
And here, the representatives of both the NLRB and the Merit Systems Protection Board saying no for cause dismissal here just because the president doesn't like us.
and that's an inappropriate basis upon which to do it.
The Supreme Court previously from the pen of the Chief Justice and now again this week saying that even as the challenges to that position of the president go ahead once again the litigation still proceeding at the lower courts even while that's going on the Supreme Court this past week telling those members of the NLRB and the MSPB that the president can in fact fire them and that the jobs that they had those positions they encumbered
can, in fact, be vacated.
And they are basically now without jobs by virtue of what the Supreme Court has said.
Again, on this interim basis, needless to say, again, without a whole lot of explanation, the decision by the Supreme Court is being blasted from many, many sectors.
And indeed, we do get.
We do get one of the plain dissenters here.
Her name is Elena Kagan.
She says that permitting the firings, she describes this as nothing short of extraordinary.
And she invokes a thing.
called the Humphries executor case.
It was a 1935 Supreme Court case in which the Congress shielded high-ranking officials from being fired, and it paved the way for these independent agencies to go forward and proliferate throughout the government.
When we come back, I'll tell you more about that case, what Elena Kagan said, and then we're gonna move on to other cases coming out of our federal district courts across the nation here on Amicus, a lot of you.
this is amicus a lot of you my name is Jim Santel and we are continuing in this the second hour of our weekend broadcast to talk about the major things that the Supreme Court has done just this past week including in this significant it's very wonky I know
but nonetheless, a significant case involving the future of independent agencies in America.
We've talked a lot about that in the past.
These are independent agencies established by the Congress to be just that, to ensure that their decision-making process is premised upon facts and the law and the application of regulations established by the Congress and enforced by these agencies, independent
of partisan involvement and political thought from the White House.
Well, this past week, again, the Supreme Court chipping away at that independence by saying, with respect to the Federal Reserve, yes, keep your hands off.
That one is indeed a quasi-private.
It's uniquely structured.
Cannot, cannot fire the Federal Reserve chair or members of the Board of Governors there.
But as to the MSPB, the Merit Systems Protection Board of the National Labor Group.
Labor Relations Board.
There, in fact, you can indeed, at least preliminarily, get rid of some members of those boards that you do not like.
Again, this is an unsigned order, and the Supreme Court goes on to say that it's not making a final decision.
Again, litigation.
continues still at a very early stage but as the litigation continues the Supreme Court says yes indeed the executive branch the president can indeed fire these two and goes on to say that the president can in fact remove without cause without reason without justification based upon their actual performance can remove without cause officers who exercise
Powers that are in the nature of an executive, subject to some narrow exceptions that do not apply here.
That's a big statement to make, even in this very, very skeletal kind of docket, we once again have some authority in this area.
It has to do with a case called Humphrey's Executor.
It's 1935, and in that case, the Congress did in fact shield some of these high-ranking officials from being fired by a president who didn't like...
what they were doing.
And it paved the way once again for the establishment of more of these so-called independent agencies.
It is invoked by Justice Elena Kagan, who's not happy, not happy with what the Supreme Court has done this past week.
She blasts the court decision and she says that this is nothing short of extraordinary.
She said it allows the president to overrule the decision in Humphreys by fiat.
by Fiat, she said the decision has forced the majority to create a bespoke, but by that she means a particular custom fitted exception for the Federal Reserve.
She basically says this makes no sense.
And although again, we do not get a lengthy opinion, frankly, no opinion at all.
We do get some sense about the dissent inside the Supreme Court on this issue.
It will be back.
It will be back.
Down the road, as will these other matters we've talked about involving once again First Amendment issues and certainly immigration issues with respect to deportations.
being undertaken by this president.
All of that happening before the United States Supreme Court this past week, lots going on.
We're going to be spending a lot of time in the next five to six weeks on this broadcast analyzing pulling apart the other major decisions.
There are about 35 of them.
The Supreme Court has yet to issue a magnets docket of about 65.
They're going to be coming out in a flurried speed this coming month or so.
And again, every weekend we'll be pulling apart those
major cases and talking about them here on this broadcast.
We necessarily also talk about the major decisions coming out of another branch of the federal courts, if you will.
Those are the federal district court judges.
We've got the trial judges.
We've got the appeals court judges.
And then we have the Supreme Court.
Those are the three levels.
Trial judges, the district court judges, 93 districts around the country.
They continue to be very active, very active.
And as I've said before, others have said the same.
They are the guardrails.
They're the ones who right now are hearing these cases involving challenges to various executive orders issued by the president and all sorts of things, including, yes, indeed, including things related to education and including things related to deportations.
Judges, the district court judges are almost to a person
and not completely saying to the president, you can't do this, or at least preliminarily, it appears that you should not be able to exercise the authority that you do seem to want to exercise, and they're enjoining.
They're stopping the president from going ahead with these executive orders, while once again the litigation proceeds.
eventually leading to trials in all these cases.
We've got three more instances of those just this past week, among many others that are taking place.
We've got this involving education, one of two education cases.
I suspect you know what the other one is.
It involves Harvard University, but this one involves the Department of Education, a federal judge.
His name is Muang Jun.
He is in the U.S.
District Court of Massachusetts, and he issues, yes, indeed, a preliminary
This one is big and he blocks he blocks President Trump's executive order doing what?
Dismantling the Department of Education and that order also directing officials officials again That is the judges order directing the officials there to reinstate literally thousands of fired federal employees from the Department of Education We know that just this past week Linda McMahon who is the Secretary of Education told the House of Pro
operations committee.
There's many as three-fourths, three-quarters of the roughly 2,000 staff members of her agency, of the Department of Education, have lost their jobs.
They're no longer there as a result of the Musk team efforts to reduce government.
as it impacted the Department of Education.
Well, this past week, again, a challenge to that huge reduction, a challenge to the President's order to begin to ramp down what the Department of Education is all about, entered by Judge John at the U.S.
District Court in Massachusetts at preliminary injunction, and remains in force until the case is resolved at a higher court or the judge himself overturns it.
Again, likely it's going to be appealed
Again, to the appeals court, maybe ultimately makes its way.
To the United States Supreme Court this particular case it is the product of some school districts in Massachusetts the American Federation of Teachers and some attorneys general who said that the the president's March order to block to block or to prevent the Department of Education going forward should in fact be blocked and the court should reverse this massive round of layoffs the judge agreed with those arguments and said that the actions equated to as he said
an illegal shutdown of the agency which only the Congress can abolish Congress created it only the Congress can bring it
to an end.
He said this, the record abundantly reveals that the defendant's true intention, the defendant, meaning the administration and the president and the secretary of education, their true intention is to effectively dismantle the department without an authorizing statute.
The judge had previously entered again some orders directing, directing that the Trump administration released about $65 million in some teacher training grants.
You may recall that.
We talked about that as well.
Turns out that an appeals court upheld that order, but the Supreme Court in April overturned it.
And so those dollars, those teacher training grants, those are not being sent on to school districts around the nation.
We'll see what happens when this connection, that is the future vitality of those jobs at the Department of Education, the basic vitality of the entire Department of Education now,
in the dockets of our federal courts.
Presumably we're going to go ahead and appeals court reviewing what Judge June has done here and will also presumably one day get at least a decision by the Supreme Court about whether or not to review those decisions about whether the
President has the capacity to bring to its conclusion a federal agency this one not independent This is inside the executive branch.
Can you bring to conclusion an agency?
Properly authorized by the Congress without Congress saying we're now going to end that agency the judge the judge saying you need Legislation to do that the president saying no he can do it by virtue of executive order, which is what he has done
Again, more rule of law, more checks and balances, more division of authorities and responsibilities with which the courts and all of us wrestle.
That's coming out of the Department of Education.
We know as well that there are other matters, other matters coming out of the Harvard University matter.
You know this well.
We've talked about this at great length.
We've talked about the...
battle between Harvard University and the President of the United States of America, the administration early on announcing that it's going to rescind about $450 million in research funding to the school and also directing
that these school stop doing various things with respect to admissions, hiring policies, personnel audits, shutter its diversity programs, its equity programs, its inclusion programs, and a war has ensued.
Not a battlefield war, but a war between the president and Harvard University back and forth.
Harvard filing a lawsuit claiming that what the president is attempting to do is a violation of their First Amendment rights to teach, to speak, to assemble.
to advocate for positions and also a violation of something called the Administrative Procedures Act that requires that these kinds of things that is the rescission of grants and programs and directives can only be done at least initially through an administrative process that the president has not followed that.
All kinds of allegations made initially.
The Harvard University lawyers have already amended once their petition when indeed the president has upped the stakes on all of this and further indicated
that he is going to stop various funding levels to Harvard.
And indeed, the war, the battle, has continued this past week.
As the Trump administration says, it's halting Harvard's ability to enroll, that's right, international students, halting Harvard University's ability to enroll students from foreign nations, taking aim, once again, at a critical funding source for the nation's oldest and wealthiest college, and also plainly affecting drum.
dramatically this large portion of the student body there at Harvard could affect about a quarter of the students total of this total student body of the school and this again it comes after back and forth in recent weeks between all of these issues related to
Harvard University and its compliance with what the president wants it to do in all of these other areas.
The lawsuit again is further amended and indeed the lawyers for Harvard University go back into court and indeed they file a complaint.
On Friday in Boston denouncing this latest move with respect to international students as a blatant violation of the US Constitution The university warning the decision would have an immediate and devastating effect on the institution and more than 7,000 students were there getting an education on visas and here once again We've got more judges involved.
Yes indeed as late as Friday US District Judge Allison Burroughs.
She is once again there in mass
Massachusetts, she issues a temporary restraining order to halt the implementation of the policy.
She enjoins, she stops the president from going ahead with telling Harvard that it can no longer enroll international students through the administrative processes.
of the federal government.
This is also involved involving Kristi Noem because this is accomplished by the federal student visa program.
If the visa program says that these students can no longer be there under Homeland Security, their capacity to be present here in this country is rescinded, their capacity to be educated at Harvard University is also removed.
And all this raises all these questions about the school certification
all kinds of things related to this decision to revoke student visa program opportunities.
An awful lot of people out there saying this is not only unprecedented, but the use of the Department of Homeland Security to reshape a student body of a university revoking access to the vetting systems there.
It's unique to targeting this particular institution that certifies again who these students are every year is unprecedented, many people are saying.
And plainly, plainly now going to the subject of more litigation in the federal courts, including in front of the judge, Ellison Burroughs, who has stopped its enforcement.
So at least for now, those 7,000 students at Harvard, very uncertain, very unclear about their future, not only their student visas, but whether they continue to be enrolled in Harvard, very uncertain, but at least for now.
in this weekend, this Memorial Day weekend, when we think about all things American and our presence on the planet and the good things that come from a diverse population there at Harvard and yes indeed at every other college, university, trade school, two-year colleges and universities and other institutions around the country, the good things that come when we have people in these settings who are diverse.
and who are there because we invite them to be a part of our unity and the significance of education that comes from now.
That's really being tested by all of this.
Now we've got a federal judge who has said that indeed that's the reason why this can happen.
It cannot happen as we go forward.
When we come back a couple more
you
Supreme Court and now the district court judges three other cases among many, many this past week, one involving a decision by a federal district court judge in Massachusetts to stop the administration from denying Harvard's ability to enroll international students.
We've got another judge also saying that the
chief executive cannot go ahead with another executive orders, that one trying to mothball to bring to its end the Department of Education, yet we've got a third one getting back once again to this all-important issue related to deportations.
Here, here again, another federal judge is his involvement in these cases, having to do with immigration, and in particular a judge named Murphy.
who finds, in fact, this past week, Brian Murphy, that the Trump administration had violated an order of his that he issued last month, barring officials, barring officials inside the executive branch from deporting people to other countries, not their own.
And that's the key to this, without first giving them an opportunity to object to their removal to those nations.
This is the so-called South Sudan case that you've heard a lot about.
The finding by, again, Judge Brian Murphy, he's
in Massachusetts, one of the strongest rebukes of this administration.
Basically, he has previously said that when it comes to decisions to deport a particular group of people, and indeed we've got eight people in this particular matter, they're from Cuba and Laos and Mexico and South Sudan and Burma and Vietnam, they're previously being convicted of crimes and those crimes are heinous.
They're murder and sexual assault and robbery, other things, there's no doubt.
that our system has resulted in judgments against them, finding them guilty, and also finding them deportable, and the judge saying that before you do that, however, you've got to provide them with notice and opportunity to object to their removal, to nations other than their countries of origin, and that's the rub.
That's the reason why, that's the reason why this is back in the news, Judge Murphy's saying that you have violated by virtue of sending these eight
You know the story here, arguably to South Sudan, arguably to the East African nation of Djibouti.
We don't know exactly where these folks are right now, but because you have done that without conferring with them and without giving them due process with respect to where they will land, what country you are taking them to, that is expressly contrary to what Judge Brian Murphy entered, the order, the directive he has given to the Homeland Security Department early on in this.
here and he said that the administration's violation could ultimately result here in a finding of yes that's right criminal contempt criminal contempt we know that there are other judges who have likewise
proposed the same thing.
The judge has asked, Brian, this is the judge, Brian Murphy has asked the Homeland Security Department, and yes, Kristi Noem once again, to quickly determine whether it was possible to hold hearings for those eight men while they remained in US custody overseas.
What can we do to ensure that the process, the due process about their relocation to another nation is followed?
And what is Brian Murphy's point?
Brian Murphy's point is not to suggest that these people
Their judgments should be overturned not to suggest that the deportation proceedings which otherwise afforded to them have not been given to them in an incomplete way but is indicated to them to the Homeland Security and to them as well that due process procedure is not complete because the notices and the information you've given them the Opportunity afforded to them to defend against their removal to a country other than their own has not been afforded
to them, and that's the point.
And so Judge Murphy is looking for an opportunity here still to find a way if he can conduct those hearings, perhaps overseas, in a way that will give them the due process that what the Congress of the United States of America has established for the Department of Homeland Security in all of these cases.
He is enforcing the law.
He is not doing what the press secretary said just this past week, violating
the law, interceding in international affairs in a way that he has no authority to do.
That's not the case.
He is enforcing the very law, the process that, yes, indeed, is given to people who are convicted of crimes.
also ordered to be deported, even that process established by the Constitution to be enforced by the federal judiciary in this country, that's the rule of law, that's due process, that's all those things of equal protection in our Constitution.
Judge Murphy said that it's not immediately clear what he's going to do if he finds out that indeed his order has been violated, but he is intending to find out.
And he asked for a list of names of people inside Homeland Security,
inside the government generally, who are responsible for violating what he feels is his order, telling them that they've got to provide this due process to these eight people.
He said, I want the names.
So I can notify them that they might all face, as he said, criminal contempt.
And as we've said before, what does that involve?
That involves certainly fines upon the federal government, which is stunning.
Certainly some limitations in future litigation.
And yes, indeed, the possibility of detention until that contempt is somehow purged.
These are not simple things being said by this judge.
We know Judge Boseberg, Judge James Boseberg, the chief judge in the District of Columbia.
Dennis in Maryland has said much the same thing.
We know that there are other judges.
Stephanie Gallagher has likewise indicated the government may well be violating her orders in refusing to comply with what she has said in connection with all sorts of immigrants, migrants who are facing deportation and not being afforded the due process that is required by what?
By the law.
The law not created by them
passed by Congress to be enforced by them, but to be followed by an executive branch that repeatedly is not doing just that.
That's the concern.
That's the rule of law concern.
And that is why, for example, one of the appeals courts in adjudicating some of these cases has, as said, it is becoming far too common in all these cases that we are being confronted again with the efforts of the executive branch to set aside the rule of law in pursuit
of its own goals, those goals partisan and not, not consistent with the rule of law, which gets us back finally to Memorial Day and the reasons why all of this is so important.
When I was in Iraq for two years, I saw on a daily basis the soldiers who were there, many of them going out every day to battle.
the wars there on behalf of our nation and the other nations in that conflict, to do it to preserve, again, not just in Iraq, but around the world, the kinds of things that we've talked about on this broadcast today, and the kinds of things we continue to talk about in furtherance of our nation's integrity, the notion that everyone, regardless of whether you're a citizen or resident, is entitled to due process, that's the reason they died.
And that's the reason they gave up their lives to sacrifice for us and the future of a nation that continues and should continue to embrace in 2025 all of those key principles upon which we're founded.
We'll come back again next week and talk more about all that for now.
Have a pensive Memorial Day weekend, everybody.
Take
care.
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