SCOTUS Blocks Rastafarian's Suit Against Prison Guards

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1:07So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. This is Bloomberg Law with June Grosso from Bloomberg Radio. It is undisputed that my client has alleged an assault that is just brazenly illegal.

1:52He was at respondent's mercy in federally funded custody when he handed them a copy of controlling precedent holding that Rulupa protected his right to keep his hair long. They threw it away, handcuffed him to a chair, and shaved him bald. Damon Landor is a devout Rastafarian who hadn't cut his hair in two decades following his faith in which dreadlocks are a sacred symbol. So when he was transferred to a Louisiana prison with just weeks left on his five-month sentence, Landor handed prison guards a copy of an appeals court decision holding that cutting religious prisoners' dreadlocks violated federal law.

2:30But a guard threw the ruling into the trash, and despite Landor's pleas, he was handcuffed to a chair and held down as his knee-length dreadlocks were cut and his head was shaved. During oral arguments, the Supreme Court justices condemned Landor's treatment and the blatant disregard of his religious rights. Here's conservative Justice Amy Coney Barrett. Look, the facts of this case are egregious. So if on the facts we were looking for a case in which there should be money damages, this is it. But it turns out this case wasn't it. Today, in a 6-3 decision, the court's conservative majority ruled that Landor cannot sue the prison officials who cut off his dreadlocks, finding that the Religious Land Use and Institutionalized Persons Act, better known as RELUPA, can't be used to hold those who violate inmates' religious rights financially responsible.

3:28The opinion was written by Justice Neil Gorsuch, who telegraphed that conclusion during the arguments. The circuits are unanimously against you and have been for many, many, many years. So saying that something awful is going to happen, whatever's happened has happened, right? But the liberal justices disagreed. And in a dissent by Justice Ketanji Brown-Jackson expressed concerns that now state prison officials will have little incentive to follow the law regarding the religious rights of inmates. My guest is Richard Garnett, a professor at Notre Dame Law School and director of the school's program on church, state and society.

4:09Rick, what's your reaction to this decision and the implications of this decision? The result in this case and the Landor case is not surprising. Given the way the oral arguments went, it was clear that the justices or at least a majority of them were very focused on the federalism issues in this case. And that's what makes this case kind of tricky. It has a religious freedom dimension, for sure, because the facts involve a really shocking violation of a prisoner's religious freedom rights. But there's also this kind of technical constitutional law question about the power of Congress to authorize certain kinds of lawsuits.

4:47And so, you know, some of the reactions to the case, I think, are misguided in the sense that I've seen some reports that, oh, this is just the court not caring about a minority religion. I think that's not the right way to think about it. You know, a group of the justices, the six in the majority here, have a pretty consistent vision of federalism. And they believe that there are limits on the federal government's power to authorize certain kinds of relief against state officials. Now, I should confess, I filed a brief on the side of the prisoner in this case. In my view, the right answer was that this action was authorized.

5:21But the reason the court ruled against him, in my view, was not because it was unbothered by the egregiousness of this violation, but because they just didn't think the federal government had the power to authorize the suit. So what this means, in my opinion, among other things, is that state governments need to really step up and make sure they provide meaningful relief for prisoners whose religious liberty rights are violated by officials, as Mr. Landor's clearly were. Relupa was designed to protect the religious rights of inmates. So why doesn't it work for this inmate whose religious rights were, I mean, everyone agrees, clearly and blatantly violated?

6:01Yeah, this is, and I apologize for getting into the weeds a little bit, but RALUPA is a special kind of statute. It's authorized by what we call the spending power, which means that it's not so much a direct regulation as it is a deal. The Congress says to the states, if you want this money, then you have to agree to comply with this understanding of religious liberty rights. The wrinkle in this case is that Mr. Landor wasn't suing the state. He wasn't suing the state prison. He was suing the prison employee in that employee's personal capacity. So, you know, you're not suing the prison. You're suing, you know, Officer Jones.

6:39And the thing is, Officer Jones never took any federal money. So he didn't make this deal with the federal government. So according to the court, since Officer Jones, that's not his name, I'm making that up, didn't make the deal with the federal government, that means that the federal statute doesn't authorize a lawsuit against Jones. And it's all based on these kind of, you know, first year law school constitutional law debates about the regulatory powers of Congress and how much power Congress has to attach strings to the money it spends. And there's a long tradition of the court saying, you know, there are limits on the strings you can attach to money.

7:14So again, nothing in today's opinion denies that the officers behaved badly and that Mr. Landor's religious freedom was violated. It's that the particular relief that Landor was seeking, that's a money damages lawsuit against an individual, wasn't authorized by the statute or couldn't be authorized by the statute. So the majority said that state employees didn't consent to face lawsuits in their personal capacities when Congress passed RALUPA. As a practical matter, when would an employee willingly consent to be sued? And Justice Ketanji Brown Jackson in dissent said today's decision magically transforms a federal statute into an invitation to be accepted or declined, deemed binding only if each particular defendant has explicitly agreed to be penalized.

8:05I mean, to the average person, the dissent makes sense. Well, and again, I was on that side in the end. I do think she oversimplifies the federalism issue. There's plenty of precedent to the effect that these regulatory spending arrangements do function kind of like a contract. That said, in my view, the better ruling would have been to say that when the state entered into this effectively contract with the federal government and took on the burdens to respect the religious liberty of inmates, that because these folks are the employees of the state, those folks kind of take employment subject to the requirements that are laid on their employers.

8:43And that includes what the statute calls appropriate relief, which if you really want to get in the weeds, that's kind of what this case really came down to is what counts as appropriate relief. So a concern that Justice Jackson raised and that I share, even though I think she oversimplifies a bit, is that, you know, the incentives on state prison employees to respect religious inmates' rights, those incentives are going to be muted a bit if they're not subject to damages for, you know, egregious violations. I mean, this wasn't kind of a judgment call, reasonable minds can disagree kind of thing.

9:18It's very clear on the facts of this case that Mr. Landor's rights were, again, outrageously violated. And so there's a concern, and this is one of the concerns that Justice Jackson raised and that I share, is that the effectiveness of the statute, which, I mean, as you said earlier, June, the point of the whole statute was to protect prisoners' religious freedom rights, is going to be weakened or undermined if that kind of, what do you want to call it, stick is pulled away. Could Landor have sued the state and the state prison system? Yeah, so this is about a particular cause of action, and there are almost certainly other ones that in theory could have been available to him.

9:54And again, my hope is that some states will respond by making sure that they create additional causes of action for prisoners like this. But there's a tendency, and we're all familiar with it, that it's easy to kind of lose sight of prisoners and their rights. Out of sight, out of mind, we tend to other our prisoners. But it isn't the case that this decision means that Landor would never have any relief for this kind of violation. The decision is limited to relief under this particular statute. The court in 2020 allowed Muslim men to sue over their inclusion on the FBI's no-fly list under a sister statute, the Religious Freedom Restoration Act.

10:35Explain why the same reasoning didn't apply here. Yeah, this is an important distinction, or at least it was to the court. So the Religious Freedom Restoration Act is not a spending power statute. It's a statute that rests on Congress's power to enforce the 14th Amendment. And it's a statute that only applies to the federal government. RELUPA is, on the one hand, much broader. It applies to not only the federal government, but to states. On the other hand, it's also narrower because the basis for it, the justification for the RELUPA statute, is this spending power. And the lines of doctrine about Congress's power under the 14th Amendment are just different from the lines of precedent about Congress's power under the spending clause.

11:19And again, I know this is really the kind of thing that makes normal people's eyes glaze over, so I apologize to anybody who's listening to it. But for legal purposes, it really does make a difference which power Congress is using. And with RALUPA, because it was only applying to the federal government, these federalism concerns are not in play. Congress is perfectly within its rights to subject the federal government to various standards of liability and to create causes of action against the federal government. But because we have a federalist system, it's more complicated when Congress imposes standards on the states.

11:49That's what explains the difference. Can you explain why this would be a, you know, there was an ideological split, why it would be a conservative liberal split on this? Again, this is generalizing with these labels and so on, but it tends to be the case that the conservatives are more interested in federalism. And it tends to be the case that the liberals are more friendly to Congress's power to create causes of action. What divided the court was not the importance of religious freedom. I mean, you know, a couple of years ago, we had a case involving a Muslim prisoner who wanted to grow a beard and it was nine to zero.

12:23Everybody agreed on the importance of that under Rulupa. But there was no question about federalism in that case because the cause of action wasn't against the person in his individual capacity. It was against the prison system. So the justices, you know, whether they're appointed by Democrats or Republicans, they all agree that the religious freedom rights of prisoners are important. But divided them here were these issues that divide them in lots of cases. Again, debates about federal power and debates about the ability to create causes of action. We've talked before that, you know, there's been a string of victories for religious liberty.

12:58Is this the first in a long time where there was a defeat, you might say, for religious interests? I'm thinking out loud here. It is the first in a while. So certainly religious freedom claimants have done well with this court. Now, I suppose some might say, for example, that when a claimant filed a lawsuit against the War Memorial Cross in the American Legion case, that they were seeking to vindicate their religious freedom and they lost. But I think it's certainly true that this court has been friendly to religious freedom claims. But, you know, I can't think of any of those claims that involve the same federalism concerns that this one did.

13:35Probably the last case I can think of where the religious freedom claimants lost was Trump versus Hawaii, which was a challenge to the so-called Muslim ban that the Trump administration had put into place early in its first administration, I think. Thanks so much for your insights today, Rick. That's Professor Richard Garnett of Notre Dame Law School. Coming up next, in another six to three decision, the court sides with the Trump administration on green card holders. This is Bloomberg. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need.

14:14Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English.

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15:34Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. Whether you're planning a big tech event, launching a new campaign, or just stocking up on team gear, finding the right promotional products makes all the difference. 4imprint offers thousands of options, from on-trend apparel and premium drinkware, to tech, totes, and giveaways, so you can find the right fit for any audience, purpose, or budget. You can customize it all. Your logo, your message, your look. And many items come with no setup charge to help you save.

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16:48The 6-3 decision down ideological lines centered on an immigration officer's decision to put a green card holder on immigration parole when he returned from a short trip to China because he'd been accused of a third-degree trademark counterfeiting crime. The conservative majority, in an opinion by Justice Clarence Thomas, reversed the Second Circuit Court of Appeals and said that the The Immigration and Nationality Act doesn't require border officers to establish by clear and convincing evidence that the green card holder had committed a crime involving moral turpitude. While the dissenting liberal justices, in an opinion written by Justice Ketanji Brown-Jackson, said that the decision effectively sentences the green card holder to immigration limbo before he'd been convicted of any crime.

17:42Joining me is Leon Fresco, a partner at Holland & Knight and the former head of the Office of Immigration Litigation in the Obama administration. Leon, will you start with the basics about green card holders and what happens when they re-enter the country? Sure. So here's what happens. When a person obtains a green card, or what is also known as lawful permanent residence in the United States, the common conception is that that person can just stay permanently in the United States. And if they want to become a citizen, they can become a citizen. But if they don't want to become a citizen for whatever reason, maybe if they're from a country that they'll lose their citizenship from there so they don't do it, then that's fine too.

18:27But that's actually not true. There are ways you can lose your green card. And one of the ways you can lose your green card is if you commit a criminal offense that is a deportable offense. So what happens is a lot of times people don't realize the sort of interplays between the green card law and the immigration law until they travel outside of the United States. And so here's what happens when you travel outside the United States. When you travel outside of the United States and you try to reenter, you show your green card to the Customs and Border Protection official who is at the airport. and 99 out of 100 times that's not a big deal they swipe your green card and they let you in the country but what the law says is that if you in the intervening time that you traveled or we didn't realize it before and now we're just realizing it for the first time that you committed some sort of criminal offense then it's not a taken for granted thing that you just re-enter the United States with your green card.

19:39What they basically say in the statute is you start from scratch again having to prove that you are entitled to be admitted in the United States. And so the question in this Supreme Court case is what happens in a world where the person was accused of the crime, and in this case it was a crime of trademark counterfeiting, It was a Chinese citizen who was charged with trademark counterfeiting. So what happens when it's a person who's charged with a crime but not convicted of a crime? And so if this person had never left the United States, they could never be placed into deportation proceedings unless and until they actually were convicted of the crime.

20:30The charging wouldn't change anything because if they were innocent, then that would not lead to any deportation. But this issue did not arise with the person just staying in the United States. This arose where a person becomes a lawful permanent resident in 2007. They get charged for the crime in May of 2012. they leave the United States and then try to re-enter the United States while the charge was pending. And so at that point, the Customs and Border Protection says, look, in this situation, you don't get the presumption that you are a lawful permanent resident who just gets to re-enter the United States, we treat you like everybody else who, if you are charged with a crime, don't get to just enter scot-free.

21:28So what we're going to do is, yes, we'll let you enter because you do have this green card, but we're not going to let you enter as a lawful permanent resident. We're going to enter you in as a parolee, and that way, when we try to deport you, if you try to use your lawful permanent residency as a defense to deportation, you will have the burden of proof to show that you're not deportable, as opposed to the government having the burden of proof to show that you are deportable. And so that's what happened here. This was an appeal from a Second Circuit decision. But there's a split in the circuits on this issue, probably one of the reasons why the court took this case.

22:15So there was a circuit split between the Second Circuit, who had ruled in favor of the foreign national, and previous decisions from the Fifth and the Ninth Circuit that said, hey, wait a second, in these cases, why doesn't the border patrol that's at the airport, why don't they have to do exactly the same thing an immigration judge would have to do if this person had never left the United States, which is essentially wait to see if they're convicted of the crime before they strip someone of their lawful permanent residency. So that's what the Second Circuit said. The government appealed that decision because they didn't want to shortcut the ability of the Border Patrol to find people with criminal issues at the airport and place them in removal proceedings.

23:04They view that as an important safeguard for America. We don't think about people until they try to reenter. That's a good sort of reminder. Hey, this person exists. Let's check their background. And so they like that that reminder exists in the system. And so they ask for a Supreme Court review. And when the government asks for a Supreme Court review, they usually get it. And in this case, it turns out the Supreme Court held today, 6-3, that, yes, Customs and Border Protection at the airport does not have to actually put you through sort of a little mini hearing or wait until you're actually convicted of a crime.

23:44They are more than capable or legally able to now, after this decision, take someone who's been charged of a crime but not convicted of a crime and conditionally allow them in the country with what's called a parole, which is just basically a legal fiction that even though your body's in the U.S., your legal body is still waiting to see what will happen after a hearing. And so they said they can do that. And then at the time of the immigration court hearing, now the burden will be on the foreign national to prove that they shouldn't be deported, as opposed to the burden being on the government.

24:24The six conservatives didn't say there had to be any standard. The Second Circuit had said clear and convincing evidence of the crime at the border, but there's no standard at all. It could be the intuition of the officer. The court actually did leave open the separate question of what appropriate evidentiary standard, if any, applies at the border. So you're correct. At the moment, it's totally up to the discretion of the Customs and Border Protection whether to say, I think there's something wrong with your immigration status, that I'm not going to just accept your green card as evidence that you should be lawfully, permanently admitted to the United States.

25:05Instead, I'm going to just parole you in and let an immigration court figure that out. Every time the Supreme Court does something like this, it always leads to a subsequent case that needs to clarify this. I understand an incrementalist approach generally, but whenever something like this happens, it's inevitable where two or three more years of just chaos occurs because the Supreme Court didn't want to give an evidentiary standard in the first place here. And the Supreme Court ultimately doesn't do that in this case because in between the time of this fact pattern and now the person does actually get convicted of this counterfeiting offense.

25:51And so the court figures, OK, if this person is convicted of the counterfeiting offense, then it's not really important that we go down this road because it's not going to make a difference in this case. This person, now the only decision left is whether this counterfeiting offense is what's called a crime involving moral turpitude or it isn't. And that comes down to the concept of whether it's really considered a moral offense, like a murder or a rape or a burglary or something, or is it considered a pure regulatory offense? And if it's a pure regulatory offense, then this person won't be deported.

26:29But that's the point is the court basically leaves this more important issue of it for another day of what the border patrol, whether they have any standards at all before they can decide to reject your green card and conditionally let you in the country as opposed to lawfully permanently letting you in the country. And so, yes, that's yet another uncertainty now for even people who have been here 20, 30 years. So, Leon, who is going to make that decision about whether the crime is one of moral turpitude? That will now be made first by an immigration judge who's an employee of the Department of Justice.

27:08It's going to get remanded all the way back down. It gets remanded to the Second Circuit, but the Second Circuit will remand it down to the Board of Immigration Appeals, who will remand it back down to the immigration judge. And then it'll work its way back up to the Second Circuit because presumably the immigration court, especially now in the current climate, will probably rule that it is a crime involving moral turpitude. And then it'll be up to the Second Circuit, who no longer has to defer to the immigration courts anymore under the Loper Bright line of cases, which says, look, when there's a legal issue, there's a legal issue.