Ep 206 — Who’s Afraid of the Fourth Amendment?

Balkanized, enforcing there to be all of these individual lawsuits and saying there can be

“no relief that just says stop breaking the law Donald Trump and your minions, right?”

That every single person affected has to individually sue and no decision is presidential. That's, that's this chaos that the Supreme Court has created. And I don't really know what comes next but it's very clear to me that the Justice Department is not going to abide by it. Welcome to Law and Chaos where the Justice Department thinks it doesn't have to obey

court orders, it can just make up its own rules and the former Duke of York is under criminal investigation. Big tech was ready to swallow the Fourth Amendment poll. We've got a lot to cover so let's get after it.

Happy Friday, Chaos Monkeys. I'm Listion with me as always.

Is Andrew Torres. Andrew, how are you? Hello, I am great. I don't love the like three days of rain but I do love it raining away. This piled snow outside. Yes, such a mess. I, you know, I'm from the mid Atlantic. There should not be giant three foot piles of snow, filthy snow with dog P on it just clocking up every corner. I demand a recount. I agree. Okay, well, happy day before the tariff decision may be possible.

I mean, two all who sell them. Yeah, right. I mean, look, I will celebrate depending on how it

“comes down. Although, I think most observers, including us, who listen to the oral argument,”

expect a Supreme Court to rule that Trump cannot just steal Congress's tariff power. Trump is pissed that they haven't ruled yet. And, you know, like, actually girls. I anyway, tomorrow is a Supreme Court decision day and people have been saying for a month

that the tariff ruling is imminent. So I guess we'll see. Yeah, it's always dangerous to try and

read the tea leaves. I remain optimistic that the Supreme Court is holding it. So the Samelito can write a 500 page screaming tantrum of a descent. I don't think they would hold it this long for, so to my or cake in much less justice Jackson. Obviously, although, now that I say this, I suppose if it's Chief Justice Roberts who's writing the descent that they would hold it for as long as he wanted. Right. If he were if he were in the minority with the, yeah, I don't want to think

about that. Yeah. Okay. Today we are going to talk about a class action out of California, which aims to block the Department of Homeland Security from enforcing its mandatory detention policy and setting up a network of concentration camps to intern immigrants. Then we've got two stories about surveillance technology. One's about cameras collecting images of us every time we leave the house and the others about dynamic pricing at the grocery store. And for subscribers,

we're going to catch up with Trump's dumbass lawyers who are still trying to get hit or reclitten

at the 11th circuit. But first let's turn off EZ with some low stakes sunshine state corruption.

The Tampa Bay Times reports that Florida Attorney General James Utmire has a lucrative new side hustle. He's been given a hundred thousand dollar adjunct professor gig at the University of Florida Law School. I, this is low sting. I mean, Utmire is teaching about 20, 30 classes. Right. His little adjuncts get paid horribly. Like they get a few thousand dollars per semester or max or lawyers who do that do it out of devotion to the profession. Wait for it. Utmire. Professor Utmire is teaching a two

“credit seminar on constitutional law. It has, I think, 15 students something like that. That would be”

$50,000 for this semester. New article says he gets paid eight times the cost of the average adjunct. Oh, Florida. But Liz, not to worry because the Supreme Court has just announced it's going out of its way to adhere to the highest standards of ethics. Oh, they're going to adopt mandatory recusal and conflict of interest roles. Who did not those standard? What they're going to do is require litigants to add stocks and bulls to their briefs to identify potential conflicts of

interest. Right. And then they can get AI to like kick it out. I mean, look, this ridiculous. I don't understand why the people making our laws need to be day trading. What the hell? The fact that these assholes feel the need. No, no. The entitlement to trade individual stocks while sitting on the Supreme Court is, it's of a piece with every other corrupt there. You about this worthless institution. And I guess we should be clear parsing the individual justices here.

This is Chief Justice Roberts and Justice Alina, right? I think the others mostly don't own

RVs and fancy vacations. $1,000 bottles of wine. Uh-huh. Well, who doesn't? Yeah. Moving on to Pennsylvania,

“we have an update on Judge Cynthia Rufi's order Monday to restore the exhibit on enslaved people who”

lived at President's house in Philadelphia under George Washington. That museum is run jointly by the National Park Service and the City of Philadelphia. And the Trump administration unilaterally removed the exhibit and basically every mention of slavery in January. On Wednesday, Judge Rufi noted that the exhibit had not been put back up as per her order and she gave the administration until Friday to fix that. They filed an emergency motion for

stay arguing that the government is going to be irreparably harmed. Even as to say true words about slavery while this case is being appealed. I have, of course, they appeal and could grieve these people are terrible through and through. But I am relieved to say that they did reinstall the

exhibit this morning after Judge Rufi cleared her throat at that. I guess they knew they were never

“going to get a stay from either her or the third serve. What's your emergency? As you said, saying”

true things are pending appeal. So, you know, might as well bite the bullet. But good story. I'm happy to see that. I mean, we'll take good news and we can get it. Our blog post today was about the ongoing disaster of all of these thousands of habeas cases, which are swamping courts in every state since the Department of Homeland Security decided that it could detain immigrants indefinitely without allowing them the opportunity to get released in a bond hearing.

Yeah, and not just that it could, but that in fact, detention is mandatory and that virtually every immigrant anywhere in the country is now ineligible for bond hearings to determine if they can be safely released into the community. So, our post was about the District of New Jersey where Judge Michael Farrier's ordered the US Attorney's Office to compile a list of all of the judicial orders that had violated in the past month. And since Weenahabah has wandered off to do

something else. She's not in charge of that office anymore. The US Attorney's Office actually did what it was told without a tremendous amount of inappropriate commentary and sneering.

“Yeah, yes, but I think the answer to how many court orders it had violated was”

56 out of 542, which is a lot. The Judge Farrier's was, I guess, sympathetic, at least up to a pointy, appreciates that the Justice Department cannot make ice comply with orders like a normal client. Right, we talked a lot about the Department of Justice being caught in the middle between on the one side they've got these courts and judges and on the other side they've got the executive branch agencies. And look, the line attorneys themselves are in this terrible position because

they have no client control. They can't, they can't make DHS do anything. And they're the ones closest to hand what a court wants to apply pressure to ensure that its orders get followed. Yeah, which is what happened last night in Minnesota. There was a case involving a Mexican national named Urgiverto Soto Jimenez, who has lived in Minnesota since 2018. He got picked up by icy in January under the erroneous interpretation of the mandatory detention policy. And he filed

a habeas petition on February 2nd. The case was assigned to Judge Laura Provenzino. She ordered the government to answer by February 5th. It did not. So the petition for habeas was granted and the court ordered the government to release Soto Jimenez by the 13th in Minnesota. And I emphasize that because we've talked at length about how hairland security is, seizing people and then pushing them out the door in Texas or releasing them back in Minnesota. But without their winter

coats, I mean, you know, or without their identity documents. And that's that appears to be what happened here. The government dumped this guy in El Paso, right? The the habeas release order came down and then he said fine and they pushed them out the door of the detention facility in Texas without his identity documents. And no means to get him back to Minnesota. He did eventually make it home. But at a hearing on Wednesday, Judge Provenzino said she's going to find the assistant

US attorney assigned to this case $500 a day until DHS got Soto Jimenez's documents back in his hand. Yeah, good for Judge Provenzino. I mean, that lawyer was one of the jag attorneys who are employed by the defense department who have been surged into federal courts to make up for the fact that the offices at the Department of Justice have been hollowed out by resignations and firing, you know, as they are dealing with this onslaught of habeas petition. So this is somebody who was

not qualified to be in that role in the first place and they have to rely on anybody that can find

Yeah, we've talked a bunch about Julie Lee, the lawyer who had that crash out in court in Minnesota.

A couple of weeks ago she was an immigration lawyer. She worked for DHS and then she was kind of seconded to the US attorney's office and she didn't know how to do any of the things. She didn't even have a login for the computer or an email and it's causing all of these disasters. But like we said, these these are lawyers who are standing up in court and representing the government. So they, you know, they have ethical duties as lawyers to not mislead the court. And as we said,

“they're the ones who are closest at hand when judges need to apply leverage. So that's what”

happened here. My understanding is that sort of him and as did get back his documents today, you know, there was a lot of herum thing from the Justice Department about how this was abusive, by the judge and whatever, but I don't know what they want judges to do. I think this isn't abusive. I think this is late. Yeah. That this is pressure that should have been applied earlier and should be applied regularly. I mean, look, it's it's different for this guy. He says jag attorney. He can't

quit because that would be that would be disobeying in order, right? He's he's got his own specific issues, right? He can't quit in the way that a civilian can quit. But look, you have an ethical duty as a lawyer. Don't don't lie to the court and, you know, you tell your pay money, you take your chances.

And finally, for our last talk at alert, the former Duke of York Andrew Mountbatten Windsor

was arrested yesterday and questioned about possible misconduct when he was in office of a revelations in the Jeffrey Epstein files. Of course, former Prince Andrews Association with

“Epstein has been willing for years. That's how we got unprinsified after this disaster scenario”

B1 2019 when he denied an allegation by Virginia Jufer, one of Epstein's victims, that he Prince Andrew had assaulted her. She described him as gross and sweaty. And he said, it couldn't possibly have been him because he was unable to sweat in the 90s due to an adrenaline overdose from when he was in service in the Falkon Island. Yeah, that went over. So the newest revelations

suggest that he revealed state business to Epstein, so that Epstein could monetize it.

Sweaty or not, this dude is grossy and all the way. But I'm gonna say, I am impressed with his brother King Charles putting out a statement saying the law must take its course and apropos nothing on the same day that South Korea sent its former president to jail for life for trying to mount a coup. Lord, I have seen what you've done for others. Do it for me, please. Heck yeah, before we celebrate, I mean Donald Trump will probably give Prince Andrew a side.

Okay, before we go to the Heppard, I do want to slip in a moment of levity from the deposition of less wexner. He's one of the billionaires who facilitated Epstein's crime.

“But I think, under questioning by Congress, that his lawyer didn't love wexner's answer.”

It was just regularly done. Answer the question. Okay. I mean, how do you feel about that? Okay, we all think we all appreciate that wexner is an inveterate piece of shit. Fine, stipulated. What is a practitioner? You know, you make an assessment. As a practitioner, every time you have a client who has to go into a deposition or testify, be cross-examined or just right a statement, you ask yourself,

what's this guy going to do that's going to hurt his own cause? And like, you know, sometimes you need a signal like, if I clear my throat really loudly after objecting, that means stop. Sometimes you need a, hey, make sure that if you're hungry, you do not this actually literally happen to me, where I had a witness say, oh, we could just continue the deposition through lunch. And like, the last two hours from like three to four o'clock were, you know, like, he was angry and just

answered whatever to get out of there. So, no sympathy for wexner, probably not even any sympathy for the lawyer who represents a wexner, but like, keep your answers to five words unless or I'm kick you in the shins again. Uh, something like that. Okay, we're going to talk about the department of Homeland Security's mandatory detention policy and a class action against it right after this brief ad break unless you are a subscriber of patreon.com/law and cast pod or law and chaos pod.com. In

which case you will not be having an ad break, not now, not ever.

asylum seekers. This is a deliberate decision by the Department of Homeland Security to violate the law. Over and over no matter how many courts tell them not to. And it's causing the judiciary to

basically buckle under the weight of these thousands of habeas cases that have to be adjudicated

immediately before ice kidnappers, these petitioners to the fissurker just goes ahead and reports them.

“Yeah, this is a really important story. We talked about it a bunch recently, uh, particularly an episode”

200. The legal dispute is over what are called the mandatory detention provisions of AUSC Section 1225, subsection B2A. That provision says in the case of an applicant for admission, the alien shall be detained for a preceding under section 1229A of this title. And that section 1225 specifically applies to people who show up at the border seeking asylum and turn themselves in. So that preceding under 1229A is what's known as a credible fear hearing, which the immigrant is supposed to get

within 24 hours or as soon as possible, but you know it then longer than a week. Okay, that's the legal background. Last July, Homeland Security put out a secret internal memo that leaked. Reclassifying

basically every immigrant without a green card anywhere in the country as an applicant for admission

under 1225. The implication is that they can pick somebody who's been on the nondetained

“bucket for years. Now, they must be detained and are not entitled to a bond hearing. So”

they just can lock them up in concentration camps forever or really what they want is until they give up and agreed to be deported, right, which that that's the whole point of the exercise. Right. And hundreds of courts have now told them that this is wrong as a matter of law. We do not have indefinite detention without process in this country. It's offensive to the constitution and it's contrary to the law. So people going through the immigration process are entitled to a

bond hearing where a judge makes a determination that the person is not dangerous and releases them, right, it says come and check in every whatever six months, whatever it is. Yeah. The very next section in the code section 1226 says that the attorney general may release the alien on bond or conditional parole. Now, every court, butt of his circuit, which, I mean, is to his circuit, has looked at that and said, no, DOJ, you can't just pretend 1226 out of existence by pretending

that the statute governing asylum applicants at the border applies to millions of people who have been parole by immigration courts into the interior. Sometimes decades ago, and even given permission to work, but the Department of Homeland Security just keeps on doing it, which is resulted in thousands of habeas petitions by all these immigrants who were picked up and

“interned in DHS's Gulags under this newly discovered mandatory detention policy. And I think it's”

important to say that Homeland Security could not have done this without a big assist from the Supreme Court in Trump versus CASA. That was the birthright citizenship case instead of issuing an actual ruling, which would have been adverse to the Trump administration, because birthright citizenship is guaranteed by the 14th Amendment, and that's been clear for 150 years. The conservative justices decided to use that case as a vehicle to blow up nationwide injunctions instead.

So, if a judge in, say, the Middle District of Pennsylvania says no Donald Trump, you may not have ice detained people indefinitely. That is unconstitutional. That only can't act as a bar nationwide. It can only ban that unconstitutional thing in the Middle District of Pennsylvania, and maybe not even there. The precise Supreme Court ruling in CASA is that courts can only grant complete relief to the parties in front of them. And so the practical implication is that the

Trump administration has treated this as an opportunity to have a get out of precedent free court. So, no matter how many courts grant habeas petitions and say no, you are reading 1225 incorrectly the Trump administration just keeps doing it because they don't care about precedent established by a prior district court opinion. Yeah, it's even more pernicious than that,

because district court rulings aren't binding basically on anyone, particularly after CASA,

but a circuit court ruling is binding precedent for the entire circuit. And so the Justice Department is really taking care not to appeal it in places where it thinks it's going to lose. That is, it's only appealing in places where it thinks it might get blessing for his preposterous interpretation of 1225, and having appeals court green light this mandatory detention. So, the fifth circuit actually did bless this a couple of weeks ago, and I believe today was argued

sort of receptive to this door to a similar interpretation, basically that the, that the attorney

general may, you know, release people on bond, but doesn't, isn't obligated to release people

“on bond, as I think that the, I think that's the way they're going, but that's, that's all T leaves”

at this point. The point is that the Justice Department is not appealing the hundreds of habeas grants in places like Los Angeles or New York, where courts have said, "Give this person a bond hearing or release him." They're just giving the bond hearing or mostly just releasing because if they appeal there in the 9th circuit or the 2nd circuit, they're going to get rulings that say, "No," and those rulings are going to be presidential in huge swathes of this country

and it's blue states. In blue states, right, in places where they would like to keep in turning people, and so they're trying very hard to avoid getting a circuit court precedents, since they've decided to district court precedents, don't matter. So, they've set it up, so that in the fifth circuit, they can, you know, grab up anybody, but everywhere else, immigrants are having to sue individually and file their own individual habeas claims to get

“themselves out to get them to get a bond. And that, as we said, is a direct result of Trump's”

costs. Yeah, two things. Number one, on the last episode we talked about how even some trial court judges in Texas are fighting back against that. They're saying, "Okay, that's the administration's statutory interpretation of 1225, but individual immigrants still have their constitutional rights."

Yeah. And second, everywhere else in the absence of nationwide injunctions, what attorneys are

doing and what district courts have been receptive to are relying on class actions to get relief for more than just the person who are handful of people that are in front of the court. And even though class actions are way worse vehicle, right, they have hired administrative hurdles. They require all the injured parties to be injured in almost exactly the same way. They're slower. They require separate certification, right? It's inferior, but it is better than doing nothing. And in the

central district of California, there is one such class action seeking to enjoy mandatory detention under 1225. That case is captioned, "Maldonado Baltista versus Nome, it is on the Docket of Judge Sunshine, Sikes in December, Judge Sikes, certified a class of bond eligible immigrants defined

as all non-citizens in the United States without lawful status, who one have entered or will enter

the United States without inspection, two were not or will not be apprehended upon arrival, and three are not or will not be subject to the mandatory detention at the time the Department of Homeland Security makes an initial custody determination." So, in English, Judge Sikes' class is everyone in the country who didn't just present themselves at the border seeking the asylum, which, by the way, is the appropriate interpretation of 1225 versus

1226. Judge Sikes ruled that the plaintiffs in front of her were not subject to mandatory detention under 1225 B2, and are therefore entitled to a bond hearing. She also barred enforcement of that July internal ice memo that we talked about that said immigrants without lawful status, more categorically and eligible for a bond hearing. The government actually did appeal that rolling to the United States. Because it's a nation like Junction. You can have a nationwide

class action. Our listeners may have been opted into one on anti-trust grants, inferior mechanism, the can at least sweep up the entire population. But I have to say, I don't think the government appealed that ruling very hard. They did not ask the United States for a stay pending appeal because the Department of Homeland Security figured out one weird trick to keep violating law, which is why courts across the country are still drowning in heaviest petitions from immigrants

who have been denied of on here. Yeah, and that one weird trick is found in an immigration court case called Matter of Your Jory Hurtada, and please forgive me if I put your names. Don't go looking for this case on Pacer. You will not find it. It's a holding by the Board of Immigration Appeals.

“Remember, immigration judges are not part of the Article III federal judiciary. They're administrative”

adjudicators. And they're part of the executive branch, specifically the executive office for immigration review, which is inside the Department of Justice. And that means that immigration judges are DOJ employees, not life-tenured federal judges. They conduct hearings that look and feel like court proceedings. But they are part of the executive enforcement apparatus, not the independent federal judiciary. They do not have Article III protections, like lifetime appointments,

or salary insulation, and they are subject to supervision by the attorney general. And indeed, Pam Bondi has fired hundreds of immigration judges. She thought we're inappropriately deferential to the rights of immigrants appearing before them.

which is also a administrative body within the Department of Justice under the command of the attorney

“general. So, TLDR, the immigration court system is part of the executive branch, not the judiciary.”

Yes, so much. And I want to talk about it, but if I can just put the rabbit in the head, the Board of Immigration Appeals is part of the Justice Department. In contrast to most of the horrible stuff going on in the immigration context, there comes out of customs and border patrol, CBP, or ICE. Those agencies are under Department of Homeland Security. But you cannot blame DHS Secretary Christy Known for the BIA. That's Pam Bondi shock.

Yeah. So, okay, put a pin in that. In September, the BIA ruled in matter of Ujory Hurtado, that immigrant detainees were ineligible for a bond hearing under this Fakhaqta interpretation of 1225. And then, after Judge Sik's grantee class certification and issued this final judgment in January in the Maldonado

“Battista case, Theresa Riley, who is the chief immigration judge at the Department of Justice,”

issued this guidance to all immigration judges. So, this is what's coming out of DOJ. Judge Riley said, "Maldonado Battista is not a nationwide injunction and does not purport you vacate, stay or enjoy in your jury Hurtado." That's the immigration court decision that said, "Yeah, this is a great interpretation of 1225. Lock people up forever." Continuing. Therefore, Ujory Hurtado remains binding precedent on agency adjudicators. That's immigration

law courts. For clarification, declaratory judgments differ from injunctions in that the former clarifies party's legal rights and relationships without ordering specific action. While the latter is a court order compelling a party to do or stop doing a specific act. A declaratory judgment is not an equitable remedy and does not by itself have the effect of compelling specific action by a party. Thank you for your attention to this matter. Okay, so that does a lot.

And do I see your temples are throbbing a little bit? Yeah, because that advice is insane. None of that is well, how can a lawyer possibly put that advice you hear the air quotes into writing? I mean, according to her bio on justice.gov, Teresa Riley is a real lawyer. She clerk for a real federal judge and served as a real federal prosecutor and then a real state prosecutor. So she must. She has to know that what she is saying is not correct.

She's telling immigration judges who, by the way, are also to violate a federal judge's order. Just what? Right. Right. So of course, this directly. I assume that the Maldonado bought to use a plaintiff cited it in their motion to enforce the judgment. Again, we can't. See that because immigration cases are for the most part sealed on the public document, which is there's a bummer whose judge's sikes told the government to explain in their home words how an

immigration judge's order trumps a US district court order and I would love to see how the DOJ lawyers briefed in that one. I would like to see who signed it. Yeah, that too. Luckily for us,

judge sikes summarized the argument that they made and who basically the Department of Justice

is arguing that the order only enjoyed the DHS memo and not the Board of Immigrant Appeals ruling and that this is a direct quote. The court has not vacated matter of Yajuray, Hurtado and then they say even if matter of Yajuray, Hurtado were vacated, immigration courts would follow circuit precedent and the statutory text under their own interpretive authority. Their own interpretive authority, like it's a modern dance class, not concentration against,

but but but I do in all seriousness note that they said we follow circuit precedent, which is, I mean, they're admitting they ignore district court orders. Yeah, and to be clear

“what we're saying is that the trial courts are US district courts for the district of X, right?”

And that'll district of Pennsylvania, district of Maryland, whatever. The circuit courts are the US courts of appeal for the circuits that sit overall of those district courts and they're saying we only follow what those circuit courts are saying and at the same time, that's a mighty convenient

position to take when US the administration are doing your damnedest to make sure they're never

is any circuit president anywhere but the fifth circuit. Yeah. Okay, their second argument is that the practical implication of a declaratory judgment is, quote, at most, limited to its

they're saying is that habeas petitioners can cite to the ruling, but the declaratory judgment doesn't mean that the government has to change its behavior. I mean, it's, it's a bull's try to check out. Yeah, it did not pay off. I mean, this order is a bench slap of the highest, or we could spend 20 minutes just reading the whole thing. I argued for that, but before we enjoy some

“righteous rhetoric, I do want to point out two important things. First, the slippage here is that”

the government is pretending that the statutory analysis involves the declaratory judgment act only. That is that they're acting as though the plaintiff submitted an academic question of law, like as a certified question to the court and asked for ruling. No, that this is also an administrative procedure act. And the court issued a declaratory judgment interpreting the law, which is what courts are for, and finding that the government was violating the law. So judge sex

issued relief under the administrative procedure act. This was not just a declaratory judgment.

She can order the government to comply. Second, pretending that the executive branch gets to do

an interpretive dance, as you call it, to decide the statute. Yeah, it is utter contempt for the separation of powers. It is, emphatically, the province and duty of the judicial department to say what the law is, everybody went to law school can summon that quote off the top of their

“act, because that's Marbury versus Madison. Are we the most important Supreme Court case in our”

nation's history, right? The executive branch does not get to ignore court orders, because they would like to interpret the statute in a different way. Yeah, we could have a whole depression into Chevron, different here since the conservatives made sure that agencies, interpretation of statute meant nothing. So that's on you guys. But we do not have time.

Instead, we're going to quote judge sex. Here's what she said. The court, possibly out of naive

a day, entrusted respondents to abide by the law as declared in the final judgment. Instead, respondents chose to privilege an executive interpretation of law over the judiciary's, you jury her title is functionally equivalent to the DHS interim policy, the respondents seek to obfuscate the identity of these executive actions by referencing internal agency regulations to which respondents selectably adhere. The court's initial decision to deny

petitioners request to vacate your jury her title under the APA, that is the administrative procedure. Was an act of judicial restraint, a formality, however based on the representations respondents have made to the court, it is evident that further relief is both necessary and proper. The court vacates your jury her title under the APA. There you go. Be careful what you wish for her. Yeah, but let's pull that pin. Because we have

talked a lot about the horrible position that the Justice Department lawyers are in the line of attorneys, having to deal with these thousands of habeas cases, which they, you know, they're like the dog with the tennis ball machine, you know, throwing all these balls at them. There's no possible way they could hit them all. Remember, we, that lawyer, Julie Lee, in Minnesota, who lost her mind in court and said she'd like to be held in contempt, because then she

could get a day off instead of fighting every hour with ICE to comply with court orders. We talked in our blog post yesterday about the US attorney's office in New Jersey, explaining to a court how hard it's working. So, you know, please don't sanction us because DHS, which uses to follow court orders. And in the main judges who have often been US attorneys themselves are sympathetic to line attorneys who cannot get DHS to abide by orders. I mean,

they're basically like, yes, sucks for you, that you can't control your client. The client here

“being Department of Homeland Security. But I think it's important to note from this opinion,”

that Judge Sykes isn't, isn't seeing any daylight between D.O.J. and DHS. She just refers to respondents and says, that's you, all of you, the entire executive branch, that they're one entity. And even if you could separate DHS, you know, for ICE from the Department of Justice, you can't do it here because these immigration courts are a part of the Justice Department. And the Justice Department is, you know, you can't, it's not one degree of separation away.

The Justice Department is the same entity which the US attorneys are. Right. I mean, these immigration courts are not part of the US attorney's office, but if the Justice Department itself is carrying out a facially illegal policy and just sorting a law and violating the separation of powers, you can't say, well, that's, that's the client. No, no, no, no, friend, that's the lawyer. That's the entire agency. And that's why Judge

Sykes refers to respondents throughout, not DHS, not ICE, not CBP, just respondents. And we,

that, that Jagdler, that, that got sanctioned in Minnesota, right? He, he was ordered to do it,

“and he got immediately assigned a hundred habeas cases in a month. This is guy, I'm sure has no”

experience doing that before. I, I, I feel sorry for him on a personal level, but this is a good reminder that the Justice Department bears a tremendous amount of responsibility for this mandatory detention policy, too. They dumbed up this immigration ruling, kind of recreating the vacated DHS memo. So that's not on the client. That, that's on DOJ. Yeah, and DOJ has chosen a strategy that requires it to be overwork at this point. So, you know, yeah, I have some human

compassion, but like, if the Supreme Court is going to take away the tools that we would

otherwise have to just get declaratory relief declaring a policy on constitutional and have it

apply, right? Because something can't be unconstitutional for one group of plaintiffs, but perfectly

“fine for another, what we wouldn't be here. And then we are. Yeah, and, I mean, just kind of play out”

what happens next. You've now got the fifth circuit saying this mandatory detention policy is fine. You've got this district court ruling in the Ninth Circuit in the Central District of California, theoretically, enjoying the policy nationwide. And, and this again, this is the Supreme Court's fault for making everything so bifurcated and Balkanized and forcing there to be all of these individual lawsuits and saying there can be no relief that just says stop breaking the law Donald Trump

and your minions, right, that every single person affected has to individually sue and no decision

is presidential. That's, that's this chaos that the Supreme Court has created. And I don't really know what comes next, but it's very clear to me, you know, that that the Justice Department's

“not got abide by it, right, that there will be this ruling in California. I think that they might”

abide by this ruling in the Central District of California, which is good because that's where Los Angeles is. I don't think that they're going to abide by it anywhere else. It's clear that they're not going to abide by it anywhere else. And so we've now got this mess, which is 100% on the Supreme Court. Agreed. Okay, if you are a subscriber at any level at lawncastpod.com or Patreon.com/ lawncastpod, we have a fun story in the subscriber bonus. It begins with a story that we have been laughing about

since 2022 back in the couple days when Donald Trump was just a vexatious litigate represented by ding-bat lawyers filing sanctionably bad lawsuits. And not, you know, an existential, threat to humanity as we know it, the story features. I think essentially our entire rogue's gallery of idiot lawyers that have represented Donald Trump said, and we're going to laugh aloud. For everybody else, we will see you after this brief at-break with a story about

surveillance. And we're back. Okay, Liz, let's talk about big data law surveillance and both in the private sector and by their cover. Okay, so Maramar Martinez is a preschool teacher in Chicago and she's a US citizen. On October 4th, she was literally driving to church to drop off donated clothes like that's sure you cannot make up. That's true. She saw a vehicle carrying CBP agents through her

neighborhood and she started following it, honking her horn and shouting, "Lum migra out the window." Great. The border patrol agents did not like that. Another car also joined this thing. At some point, she was next to them and they rammed their car into her, jumped out of the car, and shot her five times after shouting, "Do something bitch." They then roused it her from her hospital bed and arrested her for forcefully obstructing an official in

the exercise of his duties. We talked about this case in episode 184. When it got dropped, because it was clear that everything that the agents had said about getting boxed in by a convoy of antifa protesters was bullshit. They said that Maramar Martinez had rammed their car. They clearly had rammed her car. The body cam footage was real clear about it. So that case was dropped. But the Department of Homeland Security said all kinds of horrible

shit about her that she was domestic terrorists, that she'd rammed law enforcement, and they continued to say it long after the case had gone away. And so Martinez moved to modify the protective

produce a lot of evidence to the defendant, all of this expulatory and incompetent evidence,

“braiding and giggly on all the other decisions. But that evidence is usually sealed.”

It's subject to a protective order because you don't want the defendant to be able to use it in other contexts. But here, Maramar Martinez said, "My government continues to defame me and call me a terrorist so I should be able to disseminate the evidence proving that I am not including all of these including the body camera footage including various statements and these incredibly incriminating text from the agent who shot her and who joked about it and got all these

adabois from Greg Bovino. Yeah, we're gonna buy you beers and stuff. Right. And said things like, I shot her five times through the windshield and there was deflected off the windshield and like, that's not what happened, dude. You shot her through the side of, I mean, yes, a couple of the shots went through the windshield because he said that she was trying to run him over. But a lot of those shots went through the passenger side window, which is not some place that you can shoot through

“if you're being run over by the car. So I mean, that's why the case got dismissed. And so Martinez”

moved to modify the protective order to get all of this, to you know, spring all of this data and let her publish it so that she could clear her own names since the government refused to retract its statements. And, and among that information that she got apparently in discovery from the government was information showing that the government had 30 days of images of her car driving around the city of Chicago before that encounter, before she was shot. And the FBI apparently got

that surveillance data from a third party company called Flock that provides surveillance cameras

and license plate readers to law enforcement. Right. Actually, if you guys watched the Super Bowl and you saw that Amazon ring commercial where they found the lost dog named Milo. And then five minutes after the Super Bowl people were like, you know, you could use that for like stalkers could use that surveillance that net working all of these ring cameras wasn't such a great thing. So Amazon had a was about to enter into a partnership with Flock, which does, as you said, it's not,

it's not even that they sell the cameras to law enforcement, although they do, it's that they install license plate readers and cameras in public places. And so that Amazon was saying, look, this will be up. We'll be able to network all of these cameras together and generate of complete picture of people as they move through the world. And nobody wants that. So there's a creepy intent. Did they not see the dark night rises? Right. I mean, this is like all of

that you're creating minority report and being like, you're using this grade and people like, no, of course, it's not great. Yeah. So Martinez has all of this data. And she says that she should be able to release the images of herself. And the government says, oh, no, if you release it, then criminals will know where the cameras are and they'll be able to hide their priming. And Martinez said, that's fine. I don't have to release anything. I will drop my motion to

modify this protective order and unseal this evidence. If you will just publicly acknowledge that I'm not a domestic terrorist and their government said, no, so, okay, this is a lot of build-up to a story that's about the Fourth Amendment. Because it really forces us to think about this network of cameras that are all around us. And at what point does that become a search that will require a warrant? Right. How comfortable are we with this in the Fourth Amendment context?

Right. We have talked a lot about technology, outpacing prior legal norms. And until about the last decade or so, the test for whether the government needs to get a warrant under the

“Fourth Amendment was largely driven by physical notions of trespass because that's how it would”

spy on you. Right. So it doesn't violate your Fourth Amendment rights if government agents paw through the trash that you have taken out to the corner of the street. Right. It does if they paw through your trash right on the cartilage of your home or in your kitchen or whatever. Even though it's the same trash. Right. It's the physical notion of trespass that that governs when the Fourth Amendment kicks in. In the same way, it doesn't violate your Fourth Amendment rights

for undercover cops to take your photo if you're driving around in your car on the street. It does if they peek through your windows and push aside the blinds. Right. So the general

heuristic for the past 60 or 70 years has been basically if you're out in public, you have no

expectation of privacy, no Fourth Amendment protections apply. If you're in your house, you do have an expectation of privacy, which might suggest under that heuristic that flock is free to surveil you when you're driving down the street and then turn that data over to law enforcement

outside heuristic for you know, reasonable expectation of privacy is USB Jones in 2012, in which

“federal agents suspected and torn Jones a nightclub owner of being a mastermind of a drug trafficking ring.”

And what of the things Kingpins do is make sure they're never in the same room as the product.

So it's a little bit hard to catch them. So the government tried to compile as much data on Jones as they could and specifically on his whereabouts because they wanted to get him in the same room as the dope. One of the ways that they did that was by hiding in GPS tracker on his car and collecting you know all of his location data from this from this tracking device and then it used that data to secure an indictment for drug trafficking. And a trial that the the trucker judge used the

traditional private yes public no formulation and suppressed the the GPS data that the government gathered from when Jones's car was parked at home in his driveway saying he had a right to

he had an expectation of privacy there but help that he had no expectation of privacy when he was

“out on the road. So most of that GPS data came in and he was convicted. That conviction got reversed”

on appeal. And the Supreme Court applied a slightly more nuanced version but again still the old outside inside paradigm. Yes Jones was out in public when the government sticks something on your personal property when it hides a tracker in your car that's a physical intrusion. Physical intrusion is like a trespass, trespass triggers the fourth amendment therefore it needs a work for that. So Jones is conviction got thrown out. But Supreme Court Justice on your soda

Myor realized that like the day was coming soon when the government could track your movement without physically installing a device on your car without this trespassery physical intrusion. So in a concurrent she wrote that the same technological advances that have made possible non trespassery surveillance techniques will also affect the legal test by shaping the evolution

“of societal privacy expectations. I would take these attributes of GPS monitoring into account”

when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movement. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain more or less it will their political and religious beliefs sexual habits and so on. I pretty pressured just to sort of mind what she's saying is that okay under the historical test that we've used you didn't

have a legally protected expectation of privacy when you're driving around on the street in the sense that one isolated person might see you take your photo that that's a risk you take going out in public. But even when you take that rescue you probably still have some aggregate expectation of privacy that you're not being secretly tailed the entire time or monitored by a movie style level of satellite or spy cameras. So that's the mosaic theory of the fourth amendment that is that while

no one single public surveillance data point can be a physical intrusion a series of data points taken together to capture all of your movements might violate the fourth amendment that is one little blue tireless in a picture but thousands of them, thousands of pixels can make up a mosaic. So to my worst mosaic theory was adopted by the Supreme Court seven years later in a case called Carpenter v.us. That involved the government getting cell phone records from T-Mobile

under the stored communications act of 1994 which said that the government could compel a private company, telecom company, to turn over phone records if it offers, quote, "specific and articulate facts showing that there are reasonable grounds to believe that the record sought a relevant and material to an ongoing criminal investigation and that is lower than the standard for a warrant." And the Supreme Court said, "No, that will not do its clubs, but you've got to go

get a search warrant." And what they said was, given the unique nature of cell phone location records,

the fact that the information is held by a third party does not overcome the user's claims to

fourth amendment protection whether the government employs its own surveillance technology and then there's a site back to the Jones case or leverages the technology of a wireless carrier we hold than an individual maintains a legitimate expectation of privacy in the record of his physical movements. Okay, so then let's come back to Marmar Martinez. What she's going to show us? I mean, I don't think she's going to release her own images of her own car that would endanger her,

but we're talking here about 30 days of retrospective data collected on her by a commercial provider and then given to the police, perhaps with a warrant, perhaps without we don't know, but the important thing here is it was all collected before she was a suspect in any crime.

thanks to the cell phones in our pockets, commercial providers are collecting this mosaic exactly

what, just as soon as Maya was talking about and selling it, not even to the government, selling it to anybody who wants it and when it sells it or gives it to the government, does that

“violate the fourth amendment? Is that so much data that it should only be accessible with a warrant?”

And we, I mean, it's an evolving area and it's, it's something we're going to keep an eye on. Okay, we're going to take one more quick ad break unless you are a subscriber in which case, not for you. And we're back. Before the break, we talked about the criminal and fourth amendment component

of big data and surveillance. Let's talk about the second aspect of that, that is something

near and dear to my heart, which is grocery shopping. Listen, that was grocery shopping. You got no idea. Have you ever used to insta-car? I, if I raising three kids and working seven jobs, I've ever had groceries to deliver to my house. Yes, yes, I have, sir. Well, then you may have noticed that not only are prices expensive on insta-car,

“but they do, we hear, they fluctuate all the time. Do not get me started on the substitution policy. No,”

you cannot swap in box stock for better than bullion and you monster. Okay. Anyway, last year, consumer reports teamed up with some other policy groups to study how insta-car sets its prices. And what they found was that insta-car apparently uses big data for dynamic pricing to extract the maximum profit from each customer. Sure. Yeah, sure. But in practice, what that means is the people who block the exact same goods from the exact same store at the exact same time were charged

different prices. And not just, you know, tiny different, right? Like it varies by as much as 25%. Okay. So here's the methodology. More than 400 shoppers were synced up to order the exact same item that the exact same time from the exact same store, like you said, safeway in Washington, D.C. And they found that virtually every item had a different price for each person, the average cart very by 7% for each shopper. One particular example was a dozen Lucerne eggs. That's a brand

of eggs in this part of the country. Insta-cart charged 399, 428, 459, 469 or 479, depending on how much they thought you would be willing to pay and insta-cart confirmed that it uses these enormous data algorithms to set prices. But it did not expound on on how those prices are

tabulated. Yeah, that is a surprise. Okay. So that's the first part of the store.

Combining the Insta-cart story with the trend towards grocery stores using electronic shelf labels. That is instead of printing out physical stickers or signs that show the price. There are these little digital screens. They have some apparently at some Whole Foods. It looked not any that I've seen. And croaker stores already, and Walmart has said that it is going to install electronic shelf labels at 2300 stores by the end of this year, 2026.

So like the tech geek at me is definitely a little interesting. No, it is bad luck. If prices are displayed on an electronic screen, obviously the store can change it when you're walking by depending on how much it thinks you have in your checking account. And so Senator Elizabeth Warren wrote croaker a letter and said, "Hey, are you planning to use search pricing?" And croaker wrote back and said, "No, we definitely don't." Absolutely not.

But you know, stores already kind of search price. I mean, you know, I know after the enormous snowstorm out here, I paid way more for ice melt than when I could find it. And just the other day, I bought a frozen turkey for 19 cents a pound, which is like 120 of what I had to pay back in November. I mean, I'm not sure that's search pricing. I think that's like nobody wants to need a goddamn turkey in March, but okay, search pricing seems kind of fair. But okay, I think

it's important to differentiate between two kinds of search pricing. Like there's one where everybody is going to pay more for Uber at rush hour. And then there's one that says,

“"I think you should pay more for Uber because you are rich or you are actually to be fair."”

Often it is, you are poor and desperate. And so you don't have the luxury of waiting to make another choice. Yeah, I think that is exactly right. And I think that intuition was what led Democratic senators Ben Lohan and Jeff Merkle to draft the stop price gouging in grocery stores

committee, right? It's a Democratic sponsored bill. It doesn't have a number assigned to it. It may not make it out of the committee. You know, likely, well, usually we don't talk about pending legislation,

“but Liz, I think even I thought that this was interesting in two ways. I mean, first were”

the kinds of consumer protection activities that Democrats are interested in. And second,

sort of the larger question about how you go about effectuating that in a government where the enforcement mechanism, the executive branch is fundamentally broken. And, you know, in the past, right, you knew Republicans would come in and would be less likely to enforce the EPA regulations that you put it or, you know, consumer protection laws and workplace safety. But the system wasn't so broken that they would break the actual studies. George W. Bush's EPA could be trusted

to at least have an expert prepared the study properly. You know, you might have political appointees at the top monkey with it, but you would at least know that the underlying data would be correct. Here, I don't think we have that level of trust. Definitely not. Okay. So we're going to talk

“about how the bill gets around the Trump administration in it. But I think maybe we should go back”

and talk about what the bill would actually do, which is to define two major types of unfair trade practices by retail food stores. Those are price gouging and aforementioned surveillance prices. Okay. So the price gouging ban is an operator of a retail store may not sell or offer for sale and item at a grossly excessive price. Well, what's a grossly excessive price? That is going to be whatever the FTC, the federal trade commission says it is. And the law offers guidance is

as the FTC shall consider as part of the definition, whether it's more than 20% higher than the average price over the last six months. Okay. So that could be problematic. The ban on surveillance pricing is a little bit more complicated. That is the next section three. It says that a food store may not adjust the price of any item based on the personal information of the consumer, including those collected using facial recognition technology or using an electronic shelf label to change the

price of an item for a consumer based on the personal information of such consumer. So it also ban's electronic shelf labels and it requires a store to disclose if it uses facial recognition technology, which all of a sudden have a lot more nervous going into the grocery store that I was before we did the store. Yeah. So just as with price gouging, the store can also avoid liability for dynamic pricing. If it demonstrates the FTC that differential pricing is offered uniformly to

all consumers who meet some kind of publicly disclosed discount or word criteria. So basically,

if you look, if you have a shoppers card and it gets you whatever 20% off of some item on a specific day, you will have your little shoppers transponder and it will give you that price. That's fine. That's available to everybody. That's a dynamic price that will be acceptable under the law. But if it's like you're poor and so we're going to charge you more because we know you can't go to the big store in the suburbs and you can't make it to Costco then like no. Yeah. And the loss specifically

lays out 14 different classes of data that things like immutable characteristics like race, that weirdly eye color is listed well. I mean that has to be part of the underlying information that they're collecting. I have no idea how that becomes part of the profile. But you know, you're address, right? So they can profile you based on where you live. Your internet search history, all sorts of things. The law says you can't use that as the basis for dynamic pricing. So now I want

to talk about the way in which the law attempts to navigate around a federal trade commission

that is captive by the Trump administration, right? And they do that in two ways. The first is

a non preemption provision and I'm kind of painting with a broad brush here. But in general, in the 1990s Democrats wanted the federal government to set nationwide standards to pre-empt state law,

“right? You know, environmental standards didn't get ignored in red states. And now I think”

an illustration of how much, how much we've gone backwards, right? The concern is that blue states will pass legislation and the federal government will say, oh, and where we preempted that in standard is nothing, right? So the first half of that says defines what counts as preemption credibly narrowly and specifically says if states offer more protection, then that doesn't count. States can do that. And the second thing is that it allows individuals and state attorney generals

to bring lawsuits to enforce the law. So even if Pam Bondi decides she's not going to go for order, Andrew Ferguson at the FTC decides that they're not going to investigate. There are

is, and the contingency fee lawyers who represent plaintiffs, would set statutory damages of $3,000

“per violation plus costs and attorneys fees if you win in court. And it also says this really”

interesting provision that says that states can't enforce pre-arbitration waivers or pre-disput joint action waivers that would allow them to get around this act right. In other words, say, oh, if you come into the store, you would agree to let us. You disclaim any liability under the

stop price gouging act. And let me explain kind of how that would kick in because you might be

thinking like, uh, I'll sign a contract when I go into Whole Foods. But actually, you probably do. If you use Amazon Prime, if you have a store credit card, if you have the store

“discount card, that's why they make you sign up for those things. Or if you're a member of a”

subscription club, like, you know, SAMHSA club, you know, all of those are contractual agreements

that they have these terms and they typically require you to wave your right to trial,

often at minimum, at least your right to a jury trial, as well as the right to bring your lawsuit as a class action. And in general, those waivers are enforceable. So this legislation says, you can't wave the provisions of this legislation in the future. Okay, interesting stuff to think about. It's, I could see a populist kind of push for that, like you could get some Rando, like Josh Hawley who thought if there was something in it for him or, or Rand Paul

supporting this kind of legislation. It's, uh, it's interesting. But I do think we're going to have to look, we're not going to talk about Trump every day for the rest of our lives. We are going to have interesting legal issues when we get to the other side of this era. And hopefully we'll have

“the political cloud to make some really important changes. And, and these are changes which I”

think are, are going to be important because that technology is racing ahead while we're busy fighting to save democracy and civil rights. And, um, it, it can't steal a march on us. All right, that is going to do it for us this week. Thank you so much for hanging out. We would love it if you would become a subscriber at patreon.com/linecastpod or law and chaospod.com. And we would also greatly appreciate if you would give us a five star review on your podcast platform of choice.

We'll be back Monday with more written content and Tuesday with another podcast. Have a lovely weekend, do you guys? Law and chaos podcast is production of Razepton Media LLC. Isn't it solely his entertainment? Does not constitute legal advice? It does not form an attorney-clime relationship. This shows research and written advices dying produced by Bryce Blank and Eggle,

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