This is Bloomberg Law with June Brusso from Bloomberg Radio.

The Biden administration says that Texas's sweeping immigration law, known as SB four, is unconstitutional because it violates the federal government's sole authority to set immigration policy.

The law authorizes state officials to arrest, detain, and deport non citizens who enter the country illegally, but it's only gone into effect for a grand total of nine hours.

That's because it's been meandering through the federal courts, including a trip to the Supreme Court, and in the law's second appearance at the Fifth Circuit Court of Appeals, the Texas Elicitor General Lloyd Nielsen made a remarkable admission, maybe the law goes too far.

What Texas has done here is they have looked at the Supreme Court's president and they have tried to develop a statute that goes up to the line of court precedent but allows Texas to protect the border.

Now, to be fair, maybe Texas went too far, and that's the question the Sport's going to have to decide.

But that's the context of which we are here.

Texas has looked at the Supreme Court precedent and the laws that Congress has enacted and has tried to develop a law that goes up to the edge, but no further.

It was before the same panel that on March twenty six, by a two to one vote, blocked the law temporarily in an opinion by Chief Judge Priscilla Richmond, who wrote that the law likely interferes with federal immigration policy, but at oral arguments, the Solicitor General now claimed that Texas doesn't deport anybody.

He said police would take migrants to a port of entry controlled by the federal government, leaving Chief Judge Richmond to question the point of the law.

You can take let's say, one hundred and fifty people at a time back to Eagle.

Pass, Yes, or some other port of entry, Yes.

Your honor, and then the federal government's going to process him.

Is that how you yes, your honor, And that's it's going to.

Say, here's your notice or whatever you can stay in.

And so then Texas, what's the status?

What has the statute accomplished?

I'm just curious.

Yes, joining me is immigration law expert Leon Fresco, a partner at Holland and Knight and a former Justice Department official.

Leon Tell us about the litigation over this law.

This case has gone through quite the long and winding road.

To use the Beatles reference, where it starts in the District Court, and the District Court enjoins the law very simply as being in contravention to the Supreme Court's twenty twelve decision in Arizona.

Then the Fifth Circuit actually lifts the same momentarily and says that the law can go into effect, and then that goes to the Supreme Court, who then says, hey, wait a second, there actually wasn't a real ruling here with regard to the merits of whether the state should be lifted or not, so we're not going to get involved in reviewing what is a de facto decision that just says, go to the Supreme Court and figure that out.

So when they kicked it back to the Fifth Circuit, the Fifth Circuit, paneled two to one, actually put in a temporary stay.

And then what happened is while the law is temporarily saved, there is now an oral argument that occurred on whether that state should be extended.

But at the moment, the law is not in effect and it stayed pursuing to a temporary state, and what.

Would the law allow Texas to do.

The law would allow Texas to basically create the facto deportation events, essentially, because while Texas cannot actually deport people to Mexico, what they would do is if they apprehended people who were unlawfully in Texas, they would then take those people, transport them to the Mexico Texas border and say you have two choices.

Either go into Mexico or if we catch you again, you will be arrested and you will actually be charged with a felony of remaining in the United States or re entering the United States, depending on what you do after you've already been charged with the misdemeanor.

And so that was placed under great scrutiny in this oral argument because Texas tried to recast that as no, we're not actually creating these self deportations, we're just going to give them to the federal government and we're cooperating with them so that they can do it, to which the court said, well, guess what the federal government's doing you and they're saying they don't want this cooperation, So how can you say that's what you're doing.

And this is where there was some complications in the oral argument.

Yeah, it was kind of surprising that the Czexas Solicitor General said that the law was crafted in a way that goes up to the line of Supreme Court President, and he admitted that maybe across.

The line, right, he was basically trying to get what's known as a severance doctrine, where the illegal parts of the law could be severed away while still keeping the legal parts of the law.

But the problem is, it's not really clear what's legal under the Arizona case.

The only thing that Arizona permits is for state officials to check on someone's status and report them die.

So, yes, they can do that, and they've been doing that, and they can continue to do that.

But with regard to actually arresting people and charging them for a crime, the Arizona Supreme Court decision actually already says that is illegal.

And then when you add this second component of actually taking human beings back to the Mexico US border line and telling them and you have two options to port yourself or face four criminal charges, that would be completely in contravention of the Arizona Supreme Court case.

Let's say Texas does this will Mexico take those people back?

Well, this is where Mexico has said that it's not going to cooperate with any state or local deportation efforts.

It will only cooperate with the federal government.

Now what's not clear is what does that mean.

So Mexico could say if the individuals are crossing the ports of entry, they could say, we're not going to let you cross the ports of entry.

But if Texas basically scares people into recrossing the river back into Mexico, not clear what Mexico would do there.

Are they going to try to grab them and push people back into the US.

That can create a horrible you know, human ping pong essentially where you have forces taking people and pushing them back and forth.

So it's not clear what would happen realistically in that Todario.

But in any case, Texas what it's really trying to do is use fear to deter people a from not even coming into Texas in the first place, instead going into California or Arizona.

But also if they do go into Texas, then to go away and either leave Texas or go into Bangsico.

Did they even discuss in the oral arguments Texas's claim that their law mayrors federal law and the federal government divide administration isn't enforcing federal law, so they get to.

Well, correct, that's the claim of Texas.

They're basically making two claims.

One is that their law mirror's federal law, like you said, and the federal government isn't enforcing it, so they should get the opportunity to enforce it.

And one of the judges who used to be the former Texas solicitor General is now in the Fifth Circuit who was appointed by President Trump.

He had a lot of sympathy for that and certainly pushing the federal government on this lack of enforcement issue.

But at the end of the day, the point is it's very difficult to say you're cooperating with the federal effort when the federal government, who gets different in these proceedings, says, and I think successfully and persuasively to the other two judges, that this isn't contravention of what the federal government is trying to do.

They don't want this assistant.

They view this assistant as illegal.

It puts the judges in a very difficult position as to whether it will allow this to continue.

So you had the Trump appointee asking tough questions of the federal government's attorney, and then you had one judge who had ruled against Texas in this matter before didn't say much, but then the Chief Judge had a lot to say, right.

And the Chief Judge is actually appointed by George Bush, and she's the Chief Judge of the Court, and was actually in the past considered a conservative who might potentially be on the Supreme Court.

And she was very out of it about how difficult it was to square the circle with regard to the claims that the State of Texas was making and how it was going to actually implement this law if it was getting all of this resistance from both Mexico and from the federal government.

Because at the end of the day, if the states were going to take the matters into their own hands, how would that actually work as a functional matter when this has so much of a foreign policy nexus into what's being negotiated between the United States and Mexico.

After this Fifth Circuit rules, what happens next in.

The case, Well, then it can be appealed again to the Supreme Court, where the Supreme Court would decide whether to uphold the Texas law or whether to continue to say that the Texas law is unconstitutional.

It's likely the Fifth Circuit that here is actually likely to say that the Texas law is unconstitutional.

Perhaps Texas will try to get a momentary victory by going on bank in the Fifth Circuit for the full panel, which is a more conservative court, but regardless, even if they get the temporary victory, he will ultimately go to the Supreme Court.

And even though there are three justices that are unaccounted for, you have Kavanaugh, you have Cony Barrett, and you have Gorsas who are unaccounted for and could vote to overturn the Arizona law, along with Justices Thomas and Alito who voted during Arizona on the side of Arizona.

So perhaps the Flights could vote to overturn the Arizona decision, but it seems unlikely that that would happen because again of these ramifications of how a state then ends up interacting with the Mexican government with regard to this act of basically self supporting people back into Mexico who oftentimes will not even be Mexican, will be from Venezuela or Cuba or some other place where Mexico has no reason to take people back into Mexico.

Yeah, and the Chief Judge did mention that Arizona case, saying the laws on the books.

So we'll see when that ruling comes out.

Stay with me.

Leon.

Coming up next, I'll continue this conversation with Leon Fresco of Holland and Knight.

The Texas governor journeys to New York City, but not by bus.

It wasn't by bus, but Texas Governor Greg Abbott did make the trip to New York City to headline the New York Republican Party's annual gala last Thursday, and Abbot said he had no plans to let up on busing migrants to the sanctuary city, continuing his war of words with the Mayor Eric Adams.

The complaining by Mayor Adams, there's nothing short than stunning.

What he has is a tiny fraction of what Texas gets every single day.

The governor did not take the mayor up on his offer to spend a night in one of the city's migrant shelters.

I've been talking to immigration law expert Leon Fresco of Holland and Knight Leon.

Immigration is going to be one of the top issues in the presidential campaign.

And we've talked before about hints from the Biden administration that there might be an executive action by the president.

Is there any more talk or thought by the Biden administration of taking some kind of executive action in light of the fact that they couldn't get the immigration bill passed well.

The Biden administration is certainly continuing this process.

They are really engaging in a lot of debate whether it's better to place a policy in effect that they know will be enjoyed by the court simply so that they can say they tried, or whether they should try to engage in a policy that might not be as effective dominant if you looked at it on its face, but could actually survive judicial scrutiny.

But the interesting news is that when March ended, March was actually as a hair lower than people were expecting with regards to border crossings.

And that's because Mexico has agreed along with the Biden administration to help the Bide administration, especially with regards to Venezuelan.

So they are detaining Venezuelans, they are preventing Venezuelan from entering the United States, and they're actually removing Venezuelans back into Venezuela.

And so this is having some nominal but yet somewhat appreciable effect on the border with regards to numbers crossing.

And so only if those numbers were to get back to the rates that were worried about, I think is when you'd see these policies potentially being promulgated.

Leam.

We've talked before about many migrants who are arrested and then released.

But in the case of eight Venezuelan migrants who were illegally squatting illegally squatting in a home in New York and they were arrested and found with drugs and guns, they were released, but I seem to have gotten involved.

Then Ice then arrested or re arrested three of them and lodged detainer requests for four others being held in local custody.

Yes, so depending on where the Venezuelans cases, and some of the Venezuelans who were apprehended in New York actually already had final deportation orders and the problem was Venezuela won't take those individuals back and so the US government needs to decide what it's going to do with those But some of those individuals actually hadn't even had their process finished, because what happened was they were in the middle of the deportation process and the individuals absconded and didn't show up at their hearings.

And so in those situations, I have said, look what the City of New York is done with.

Whatever criminal penalties are going to be provided to those individuals, then we want them so that we can try to place them in deportation proceeding.

Now, the ultimate problem with all of these Venezuelans is going to be what happens next.

If Venezuela will not accept those individuals, what is the federal government willing to do.

Is it willing to sanction Venezuela in some way that will actually be meaningful to Venezuela so that it will start accepting individuals.

Will it actually try to do something different in terms of parrots to make it more attractive for Venezuela to accept people but that's the larger issue.

Or will it try to find some country who will accept Venezuelans in exchange for some favor that the US government is willing to do, perhaps with regard to foreign aid or trade or something else.

But those are the options that are available to the federal government.

But this Venezuelan issue is going to continue, ne you to be complicated so long as Venezuela is not accepting people that the United States is trying to remove there.

So is that why Venezuelans are in the spotlight because the country's not accepting people back or are there other reasons why?

Well, there's a lot of issues going on at one time.

One, obviously there's a mass exodus of Venezuelans into the United States.

Second, there are now appearing to be some efforts with regard to Venezuela with sort of emptying out some of the undesirables from Venezuela in a way similar to what Fidel Castro did in Cuba in the nineteen eighties to make Venezuelan to sort of alleviate the social pressures on Venezuela.

But those pressures now get transferred to the United States as some of those individuals arrived who are not necessarily as safe as some others.

And so I think that's what you're seeing, is you're seeing the confluence of a different group of Venezuelans entering into the United States, addition to the fact that those individuals then can't be removed back into Venezuela.

And so this is something, like I said, the last time you saw this was in the nineteen eighties, and when this happened then it was destabilizing the quite some number of places until those communities could figure out what they were going to do.

Let's say Ice has some Venezuela's in custody, what are its options.

So what happens is there's an opinion from the Supreme Court that actually was post this nineteen eighties issue, which was called Zavidas.

And in that opinion, what they said was, if you can't deport someone and you know you can't support someone, you've tried for six months while you've had them in detention and you can't support them, you have to release them back into society under an order of supervision where they have to report and check in, unless you can show that there's such a danger to society that you can indefinitely detain them.

And so the federal government has been very concerned about trying to stretch out the constitutionality of whether it can indefinitely detain people, but basically, anytime someone breaks their conditions, you can place them back in detention for six months at a time, but that's very difficult, and so if you're going to be tracking people and they're going to be committing crimes in between the time they're in immigration detention, that's the sort of thing that the public doesn't like to year about when the federal government's doing that.

They don't understand what's going on.

But the problem is there is the Supreme Court decision, which you know, understandably, you don't want to have someone in detention for fifty years because their government won't accept them.

And all they might have done is commit something like a shoplifting offense, and now they're suddenly in prison for fifty years.

So you have to be careful.

There obviously is a balance, but here the balance has led to a situation where there's a little bit of a lack of safety and stability some places because there are all these Venezuelans who are being caught doing things in New York City and they can't be detained because there's a cap to how long they can be detained.

Due to the fact that they can't actually be removed back to Venezuela.

It is so complicated because you're right, you read the stories and you go, well, why are they still here?

They've been in and out of jail and continue committing crimes.

You know, why isn't something being done?

I mean, it's just so complicated and confused.

I mean, you could, you could conceivably And this is the thing nobody's ever tried to do, is have an aggressive action against some country like Venezuela and say, look, we are by force.

And this is the kind of thing Trump has talked about, we are by force bringing people here, and go ahead, shoot out us.

You know, try whatever you're gonna try, but we're gonna We're gonna still deport these people.

We don't care.

But obviously something like that hasn't yet been dried in American history, so it's not clear.

Maybe President Trump would try that, or maybe with scare a country to accepting people under the threat that he's going to try these forced deportations, but it would be considered an act of aggression because you're invading a country's territorial boundaries without their permissions.

And the numbers in March were better, but still incredibly high.

Right, It's still very high compared to past years, that past decades, but compared to this recent last twelve months.

March was a bit of a break from what people expected was going to happen in March, and that's because all of the Venezuelas people thought were coming were not coming because Mexico was stopping them.

And Venezuela has agreed to allow deportations from Mexico, even if it hasn't agreed to allow deportations from the United States.

The majority of migrants, what country are they from?

Well, people are still coming from all over the world, and Mexico actually still is the highest number in terms of just your number.

But they're coming from Cuba, they're coming from Haiti, They're coming from Venezuela.

They're coming from Nicaragua, They're coming from Central America, savad or Juatemala, there is they're coming from Ecuador.

They're coming now from parts of Africa and from China, and so it's everywhere, but Venezuela has sort of been the choke point in terms of just the numbers get really high when the surges of Venezuelan come in.

And this is why immigration is going to be one of the top issues this presidential election season.

Thanks so much, Leon for once again helping us to understand how complicated immigration issues are.

That's Leon Fresco of Holland and Knight.

In other legal news today, Donald Trump asked a New York appeals court to move his hush money criminal trial out of Manhattan and reverse his gag order in an eleventh hour bid for delay just a week before the trial is scheduled to start.

At an emergency hearing today, the former president's lawyers asked an appellate judge to postpone the April fifteenth trial while they fight for a change of venue.

Trump's lawyer argued that he faces quote real potential prejudice as a defendant in heavily democratic Manhattan.

Citing defense surveys and a review of media coverage.

Trump Is suggested on social media that the trial should be moved to Staten Island, the only New York City borough he won in twenty sixteen and twenty twenty.

The appella chief for the Manhattan District Attorney's Office, Stephen Woo, said the question in this case is not whether a random poll of New Yorkers from whatever neighborhood are able to be impartial.

It's about whether a trial court is able to select a jury of twelve impartial jurors.

He also blamed Trump for stoking pre trial publicity with countless media appearances talking about the facts of the case, the witnesses, and so on.

Justice Elizabeth Gonzalez noted at today's hearing that it didn't involve an appeal per se, but the defense's desire for an emergency stay, an order that would prevent the trial from starting on time.

She said she would review related court filings and issue a decision quote at some point.

Coming up next on the Bloomberg Law Show, the First Amendment shields a Broadway producer's casting decision from discrimination claims.

I'm June Grosse and you're listening to Bloomberg.

He hadies down is the Tony Award winning musical about the myth of Orpheus and Euryticy, and it's now the latest example of how the First Amendment can shield casting decisions from claims of discrimination.

Joining Me's employment law expert Anthony Ansee, a partner at Pross Gower Rose Tony, tell us about the facts here because it seemed like the producers of this show were sort of between a rock and a hard place when they realized that the chorus consisted of all black actors and Orpheus, who rescues the chorus from never ending labor, was a white actor.

So I think they were trying to balance some very important issues on both sides, and interestingly, I think they were being racially sensitive.

That's perhaps the most ironic part of this case.

By making the decision that they made, They in the initial configuration of the cast, had a white actor on the one hand who was playing one of the lead roles, and a number of other cast members were all black, and the inadvertent message that apparently was being inferred from that was one of a white savior saving the black cast members, and that was what sort of touched off the ultimate decision that they made with respect to the casting.

So the producers fired a black actor in the chorus and replaced her with a white actor, and she sued them.

What were the grounds of her suit?

She sued for a number of things, most particularly employment discrimination because she said that she was in a protected class as she is, that she was terminated because of her race, and that in almost every other context, you can imagine in an employment setting would probably be enough to at least continue to pursue the case.

Interestingly, with those claims with respect to employment discriminations were dismissed at the very earliest stage, at the pleadings stage.

So was it dismissed because the producers raised a First Amendment defense and tell us about that right?

So what the court did is they very deliberately went through first her allegations and concluded that she had at least the makings of a successful lawsuit.

As I said, she was in a protected category.

She says that her race was a factor, if not the primary factor, in the termination decision, and sought to pursue a claim for discrimination based upon her race.

The producers, however, argued in response that they had a First Amendment right to make the decision that they made, and in particular with respect to casting a Broadway play, they said was an expression of their First Amendment rights and they therefore were immune, they argued from a discrimination claim such as the one that was being brought by the former employee in this case, and am Matt and.

Federal judge agreed with the producers as far as the discrimination claim she dismissed the plaintiffs discrimination claims, but allowed her retaliation claims to go forward.

I should offer a cautionary note here, and that is that this arose obvis in the entertainment context for a Broadway production.

And there are a few other cases, and I emphasize just a few, that have similarly arisen in the entertainment industry, principally involving casting related decisions that are made by employers.

And most, if not all the cases that I found, at least so far, and there's probably not more than five or six of them, have endorsed the producers or the directors, or the individuals who are otherwise making the employment decisions.

For example, there's been some cases involving beauty contests and things like that, involving, for example, transgender applicants to an all female beauty contest, And almost all these cases come out the same way, and that is that the courts that have reviewed these claims of discrimination have come down on the side of the defendant of the employer, saying that this is a very unique situation in which there is creative expression that occurs, and that creative expression in the form of casting is detected by the First Amendment.

And you have to tell me about the case involving the Bachelor, because that's such a popular, popular show appointment viewing.

Yes, And this most recent opinion, which came out just on March seventh, so it's brand new, it does rely to some extent on the so called Bachelor opinion, which is from a federal court in Tennessee in twenty twelve, so it actually is quite a while ago.

And that case involved two black men who claimed that they sought to but were not permitted, to be on the Bachelor show in twenty twelve.

And they said that the reason was that they were black, and they noted in their lawsuit that up to that point, at least all of the contestants had been white.

And they went further and said that the producers were refusing to cast non white bachelors and bachelorettes by the way, to avoid the quote controversy stemming from an interracial romance, and to convey the message quote that only all white relationships are desirable and worthy of national attention.

Now, not surprisingly, the producers vehemently and categorically denied that those were the messages that they sought to send or that those were the motivating factors behind the decisions that had been made, but the court said it didn't matter.

The court said, again using the First Amendment affirmative defense that played out in the Hadestown case, that even if let's assume for a moment, because that's what happens on emotion to dismiss, you assume everything that's being alleged is true.

And then the court asks itself the question, even if everything that is being alleged is true, is that a basis to continue with this lawsuit?

So for purpose of promotion to dismiss.

In the Bachelor case, the court assumed that the producers may have had those unsavory points of view with respect to interracial romance and with respect to all white relationships and so on, and said that even if that were the case, it wouldn't matter.

That this is still expression of a creative nature that is being exercised by the producers, and as a result of that, the inquiry stops.

That the First Amendment basically stands in the way of a discrimination claim by someone who is claiming that there was some invidious discrimination behind the decision making.

This casting claim was even used with regard to television news, which I found really interesting.

I think most people know that, in general, the decisions to hire TV news reporters or in this case, whether people are based in part on how they look.

In California, these kinds of cases, and again there's just a smattering of them, very few cases involving these kinds of claims and these kinds of defenses, at least in the published record, but they are dealt with slightly differently in California.

We actually in California have something called the Anti SLAP stat which is kind of acronym's gone wild, and slap is spelled with two p's, so it's the anti slapp statue, and that stands for strategic lawsuit against public participation.

So yeah, I think it's an acronym in search of words and not the other way around.

But in any event, what it is is a means by which a defendant who is making a casting decision, as you mentioned in one case involving an on air weather reporter, is able to essentially dismiss the claim that's brought alleging discrimination, and the basis for dismissal is this first amendment.

The same kind of first Amendment defense that we've been talking about.

So that's what happened in this case.

An older white male challenged decision that was made to instead of hiring him, hiring younger, more attractive female weather reporters, and he alleged that that was discrimination based upon his age and his gender.

And he said that because younger attractive female form being hired as on air weather reporters, that obviously had a discriminatory effect and precluded him from being hired.

And again this same analysis was used in the case.

The court indulged the possibility that that was in fact what was going on, that the local weather reporter was being hired based upon gender, or based upon age or attractiveness, what have you.

And the court said, nonetheless, the television station in that case was involved in quote expressive activity under the First Amendment, and that such selection choices were quote essentially casting decisions.

We don't typically think of the weather reporter as a casting decision, but it's not very difficult to imagine that because it does have some of the same characters.

And therefore, once again the employer, the producer, under these circumstances was immune from this discrimination claim that was being alleged by the prospective weather reporter.

So do you think that all these cases mean that you know, whether it's film or theater or TV, that producers can cast whomever they want in a roll and know that if discrimination claims are filed, they're going to win.

I think that we're close to that if it is genuinely a casting related decision, and it is genuinely connected to some kind of creative expression, and I know those are rubbery words, and it's probably going to be the case if it hasn't already been the case, and maybe some cases that we've not yet seen published that those might be inapplicable in certain decisions.

But I think that anybody who is either thinking of suing an entertainment company and who might be subject to some form of casting or some form of selection by the producer or by the entertainment related company, I think is going to have tougher odds in being able to proceed with a lawsuit.

Conversely, I think that anybody who's defending as I do defend employers many within the entertainment industry, if there is something related to expression of creativity or casting, this should be a first stop consideration and I think, obviously there's going to be limits to that that probably would not apply to an in house lawyer at a studio or at a Broadway production, or an accountant.

It probably wouldn't apply to somebody who's a member of the crew who's not necessarily going to be in any way exposed to the public in terms of the performance.

So I think, although this is interesting and categorically uncharacteristic, I guess of what we typically think of in terms of discrimination lawsuits, it is a very powerful defense, very narrow area within the entertainment industry, and one that I think you don't have to look much further than I went back and checked.

In my view of The Godfather, I think the motion picture movie from the nineteen seventies would be much different if the casting decisions had been different.

And we all know it's a matter of public record that some of the most influential producers of that film preferred some of the leading actors of the day, including Laurence Olivier, George C.

Scott, and even Danny Thomas as the Godfather Beato Corleone, over Marlon Brando.

And it was really only the very strong creative decision and the force of personality, and of course the influence that Francis Ford Coppola had as the director that he was able to make sure that his singular choice, Marlon Brando, was chosen for that role.

But it doesn't take a lot of imagination to think what would that motion and picture have been like if any of those individuals, all fine actors had been cast and not the iconic Marlon Brando or al Pacino.

Because Francis Ford Coppla had a fight tooth and nail to get al Pacino in that.

Role, that is correct.

There's been a lot of post Godfather history, including a relatively recent television dramatization about the casting and the production of the film that talked a lot about that and that mister Baccino was on thin ice and the producers very much did not want him.

And of course you can't imagine anyone being Michael corleone other than al Pacina.

You really can't at this point.

Thanks so much, Tony for your Godfather insights as well as your legal insights.

That's Anthony on Seedi of Pross Cower Rose