 Vermont PBS in cooperation with Orca Media and the Vermont Press Bureau presents Capital Beat, the Week in Review, from the Vermont State House. Here's host Neil Goswami. Welcome back to Capital Beat. I'm Neil Goswami with the Vermont Press Bureau. It's been about one week since President Donald Trump signed his executive order on immigration and border security. And joining me today here in the State House cafeteria is Attorney General T.J. Donovan. And the governor's legal counsel, J. Pershing Johnson. Thank you, Neil. Thanks so much, both of you, for being here. We've heard a lot in the last week about this executive order and the implications that it might have here in Vermont and around the country. I am hoping that the two of you can help us make some sense of what the executive order actually says and what it does. Perhaps, Mr. Attorney General, you could get us started. Well, there were three executive orders. One was what we are calling a travel ban, limiting folks from seven different countries from entering the United States. The second one was in regards to the so-called sanctuary cities. And the third one had to do with the so-called wall along the southern border in the United States. Obviously, what has received the most attention is the travel ban given the high refugee population here in the state and given the work that the city of Rutland was doing in welcoming 100 families from Syria. But also the issue in regards to this so-called sanctuary status and the threat of losing federal funding. And so my position, I was proud to sign on with 16 other attorney generals to say that President Trump's executive order was unconstitutional and un-American. Why it's unconstitutional in my opinion is it's a violation of the Equal Protection Clause in terms of treating people differently based on the religion. It's a violation of the establishment clause essentially saying that we have one religion in this country. I also think it raises 10th amendment issues in terms of directing state and local law enforcement arguing to engage in federal police powers. Obviously the 10th amendment is the state's rights amendment. So all these issues are issues that concern rightfully so all of us. We are a nation of immigrants. We are a state of immigrants. We have over 26,000 immigrants in the state of Vermont. It's an economic driver for this state. It's an economic development issue for this state. It's something that we've been working on in our office not only on the legal issues but on legislative issues to make sure that we protect all of them. Ms. Johnson, what in the past week has the state learned about these executive orders in terms of its direct impact on Vermont? Well from what we know in terms of the executive orders we know that the greatest impact in the short terms on the existing refugee populations. So obviously with the Rutland refugee resettlement effort that's going to be have to put on hold so you have two families here you have other families who are waiting to come who are not going to be able to get here. I think something else that particularly concerns me are the other refugee populations around the state who basically have a right of family reunification once they get here or had a right of family reunification and any of those kinds of applications that are in the pipeline are not going to be able to happen either. So I think it's really the impact on the people who are here in Vermont now. Do these orders halt permanently the refugees from Syria that were planning to come and settle in Rutland? Yeah I think Syria is the executive orders essentially run for 90 days but my understanding is that Syria stands alone it's been singled out in a permanent in terms of a permanent ban in terms of immigrating to this country. So as I said it raises a lot of issues due process issues equal protection, the establishment costs, 10th amendment issues and so this is something that obviously is impacting not only folks in this state this is a national issue this is an issue that I think most of us and when you talk about the harm all you have to do is turn on the TV read the paper and see people protesting in the streets peaceful protests I might add here in Montpelier and Burlington all over this country because this goes to the core function of who we are as a country but we said it was not only unconstitutional but it's un-American. Does the governor's office find the same issues and concerns with these executive orders? The Attorney General mentioned the Equal Protection Clause the Establishment Clause, 10th amendment concerns as the governor's legal counsel do you agree with that assessment in terms of the legality or constitutionality of this? We do Neil we have in the first two executive orders particularly as they relate to the ability, the language is so broad and it's very very big we've reached out to the Department of Homeland Security and the US DOJ and we haven't gotten any additional guidance it is very broad it's very vague but what you can read from the face of the words is that there seems to be some intention to be able to detain on suspicion of a crime only so we believe that that would be a fourth amendment violation in both of the original two orders there were provisions with respect to not requiring but engaging with states to enter into what people referred to as 287G agreements which essentially under the federal law permit states to enter into these agreements with the federal government to perform immigration enforcement functions typically the way that works I think is the states are looking to engage in those functions they must get federal authority to do that because it's exclusively in the jurisdiction of federal government in this case the concept is sort of turned on its head where the federal government is saying we will reach out to you with agreements you will sign them and act as our agents the federal law provides that that's at the sole cost of the state it also provides expressly that there is no requirement to enter into the agreements so that's why the governor is taking the position he has with respect to declining to enter into an agreement should one be sent to the state and also to somehow address the concern of what happens if they are sent to local jurisdictions Vermont has a strong agricultural community particularly dairy farms we're a state that relies heavily on tourism and in particular there are many foreign workers at ski resorts do we know what this impact might be on those sectors of the Vermont economy will we be able to have foreign workers on dairy farms will we be able to have foreign workers at ski resorts let me just say one thing if all unauthorized immigrants were removed from Vermont the state would lose $249 million in economic activity $110 million in gross state product in 1800 jobs this is an economic development issue these folks are vital to our economy we have to have an honest conversation about who's doing the work on our farms in this state we have to have an honest conversation about who's cleaning our hotel rooms in this state and it's not just Whip's room it's more to stand up and defend them in this state and this is why this is not just a Vermont issue not just an American issue but a human rights issue so would these orders target foreign workers that have a work visa to be here and work on a dairy farm or in an apple orchard or at a ski resort they don't target anyone who's here legally with documentation the people they target are the people who are not documented so the executive order that I think TJ referred to as the sanctuary city order is really a very strong statement of the president's power to enforce the immigration laws so we're going to be working with the Attorney General's office moving forward to I think determine what our legal avenues are but it's going to be problematic for the state and it should be pointed out nobody is advocating not to comply with the federal law here and I think the law is clear where you can't prohibit a law enforcement office or an agency from disclosing immigration information to the federal government we're always going to comply with that and there's very valid legitimate reasons to do that nobody is saying let's not communicate when we're aware of a judicial warrant supported by a problem or cause or respond to a detainer which is essentially a request to hold somebody when it's supported by a problem or cause that is the foundation, really a due process issue that is the foundation of our legal system what we're saying is how do you protect people within the rule of law with those protections in this state and what it comes down to is this it comes down to access to justice because we want victims we want women who are victims of domestic violence we want victims of crime to feel comfortable and confident that when they call the police to report that they've been victims of crime they get the same service and access to justice that you and I get that's what this is about so both the attorney general's office and the governor's office have taken some initial steps to respond to the executive orders the attorney general's office you've created a task force with a broad spectrum of folks who are participating it's only been a handful of days since you created it but have you learned anything more about what this task force can or cannot do or what your office can or cannot do? I would say the first thing I've learned is how complicated this area of law is and I think one of the struggles that everybody's having not just in this state, across this nation this is a subject matter where not many lawyers have practiced it and so developing the subject matter expertise is incredibly important number two, the demand that there is action and making sure that what steps the state takes are consistent with federal law at the same time protecting the most vulnerable among us and also the desire of Vermonters who want to help sending out a press release this afternoon meal we're going to break it here although this isn't going to film until Monday night so it's not breaking news that we're asking, working with the Vermont Bar Association to recruit Vermont lawyers to provide pro bono legal services on the issues of immigration and detention because so many Vermont lawyers have said what can we do to help and to create a pool of lawyers get them trained up by immigration attorneys where there are frankly only a few in this state so we have a pool of ready, willing, and able Vermont attorneys who are going to provide access to justice to the Vermonters who are most at risk right now the governor's office outlined earlier this week at least five concrete steps that he is willing to take perhaps you can run us briefly through what those steps will be also the first was to have me as legal counsel reach out to the AG's office with respect to what our legal remedies might be in connection with constitutional law claims so we've actually met early this week to discuss some of those issues as TJ said, he's established this task force to advise the AG's office it's going to be a deliberative process there are going to be issues of standing that have to be carefully considered and the AG's office has terrific expertise in the areas of civil rights and criminal law immigration law is a very tough area the standards of due process are different so that's going to be, so we have reached out we're working together and we'll continue to work together the governor established a civil and civil rights and criminal justice cabinet and essentially that's meeting tomorrow morning at 11 TJ's a part of that, we've assembled a number of representatives of law enforcement, state agencies who are going to be affected like agriculture, human services, obviously state police a representative of mayors around the state and the defender general's office obviously the governor will all be there I think the idea is there is to get stakeholders to express their concerns because obviously in many cases there are going to be competing concerns but what kind of a legislative strategy can we take in order to address our particular concern with the executive orders which is these 287 agreements and I think get a sense of where the policy issues are what kinds of programs are already in place that are very important to law enforcement obviously defender general is going to have Fourth Amendment issues and concerns that might not be raised in the very beginning by the state law enforcement agencies so I think to get all of that information on the table and to inform the conversation about legislation so that we can work together and bring something to the legislature that's coherent, that's unified and addresses I think some of the most immediate concerns Yeah, in the week since these have been announced have you learned anything more that the state can do in its response? I think a couple of things I think as Jay said looking at specific legislation which I think is the work is being done now researching all legal options Jay is absolutely right when she talks about the issue of standing which is how do you demonstrate essentially harm to the state and when you look at the cases that have been filed by different states right now whether it's Massachusetts, New York, Virginia you had those states intervening in essentially the ACLU matters which were temporary strainers to stay where people were detained The outlier case of those that were following is the Washington State case where there was not, where they filed in their own they didn't intervene into a pending action where they alleged that essentially the travel ban order caused an economic harm to Washington State as a whole through their tech industry, through their universities because of their economy that's set for a hearing this Friday and we're watching that very closely and so looking and doing the research about really it comes down to an issue of standing for a robot at this time we also know this one of the critical things that we have to remember here is this, this is like day 13 and what we need to do is be much more proactive that's going to require us to do our work up front so we don't react and lose days when people are at risk to actually understand what are the likely executive orders to come down what is the likely legislation that couldn't be passed how's it going to impact the most minimal and what are the proactive steps that we can do and that is legal action and legislation I just wanted to say that we're also, like I said we've reached out to the Department of Justice, Homeland Security to get additional guidance which you haven't received yet but we'll continue I think to seek to push on that the other would be that we are, our agencies are continuing to work with our refugee populations to support them, I mean those services haven't stopped those services are still funded and right now I think we're doing what we can to protect the immigrant and refugee populations who are in the state now I was saying that I've been a prosecutor for most of my career and I'm sure this is consistent with Jesus Christ we've always had great relationships with our federal partners and law enforcement and I don't see that changing I think what we need to do is clarify some of our laws to get some clarification about the exact implementation of these executive orders to find the common ground but never to waver on our commitment to protecting the most vulnerable in our state and I think the language is very clear in terms of, at least from my position when you talk, you're never going to be able to prohibit sending information, disclosing information to the federal government that's clear in my opinion you're never going to advise law enforcement not to comply with the court order whether it be a detainer, an arrest warrant or a search warrant that's supported by probable cause what we have to look at are these so-called administrative detainers which are kind of based on suspicion where you don't have that finding by a neutral magistrate those are the protections that we want to build that is consistent with public safety public safety is always going to come first but I think in this fabric of maintaining Vermont as a safe and vibrant community this is doable it's going to take some work it's going to take some collaboration it's certainly going to take some communication but I think that we can do this in a way that protects the most vulnerable and maintain a positive and collaborative working relationship with federal law enforcement you mentioned there are a number of legal challenges filed against the federal government at this point or against the executive order including this one in Washington that as you said is an outlier either of your offices considering joining or filing a lawsuit at this point in time we're doing our due diligence right now in terms of the research in terms of addressing the standing issue that both Jay and I articulated and watching very closely what will happen and I would say that all options are on the table right now for us it's the same for the governor's office the AG's office is our lawyer and so we're working closely with them to express our particular constitutional concerns and like I said they're working with their task force to sort of work through the issues and I imagine we'll be being briefed on how that's going so we're really looking forward to working with the AG's office to advise the governor on our legal options what the risks might be and how we might proceed and let me identify a risk we've got to be careful about federal funding here right well that was my next question and that just has to be discussed openly and honestly and looking at risks here and so at the same time is there a way to again challenge the constitutionality of these orders to protect the monitors at the same time perhaps not risk so giving them out of federal dollars that come into this state there is no easy answer I think what I'm trying to do as attorney general is to be deliberate and not to rush to gather all the information to do our research to see what happens particularly in Washington on Friday and to make informed decisions that is in the best interest of this state in all per monitors it's my understanding that there are financial sanctions included in these orders there are also called sanctuary cities or other jurisdictions that don't comply with them number one what is a sanctuary city or a sanctuary state and are we that are we in danger of losing some funding with respect to the state we've talked to our state police our bias free policing policy is compliant with federal law so we don't believe that federal funding is at risk when it comes to the state we haven't seen what the G's office has done but we haven't seen the kinds of actions that our municipalities have taken to declare themselves sanctuary cities that's something they should consider with respect to compliance with federal law because the fact is if they're not compliant and they have federal grant agreements that say they will comply with federal law it's an easy leap for the Trump administration to jump on that compliance exercise and declare them to be non-compliant kind of funding so that's not an exercise in contract administration when it comes to any state that any exercise that the state any action that the state takes with respect to 287G first of all you can't force a state to you can't commandeer the resources of a state to act on behalf of the federal government but there is case law which indicates that there could be incentives imposed so that states adopt policies that they wouldn't otherwise adopt the thing is any any action like that would have to be very very closely tied to the kind of action that you're taking so say we said to the federal government we're not signing your agreement they were to say fine we're pulling your funding constitutionally they could really only pull funding from that area that's very closely related to that which in our case would be something like border control and immigration enforcement so it works kind of contrary to the Trump purpose if you're going to tell us that you're going to pull that funding so that's I think that the risk we don't know obviously what the risks are but I think that's the I think we have very good constitutional basis for pushing back on any penalties for not executing one of these 287G agreements let me just say this there's no legal designation as a sanctuary city right there's no tiny definition for it no and that's the problem I actually don't support people labeling sanctuary cities or sanctuary states it's the policy that underlies that so called designation which is important and as Jay said looking at the fair and unbiased policing policy how many municipalities and towns have adopted that making sure that we're not collecting certain information whether it's religious affiliation sexual orientation so it's the policy work that's important you have to comply with the federal law I think that's just a right line when it comes to certain federal law in the area of immigration and one of the goals that we have out of the task force is producing some guidance for our towns and cities in Vermont because I'm sure as we go forward here over the next couple of years this is going to be an issue that does not go away people need to know what the law is and people need to make informed decision about how best to proceed look the money issue has as I said earlier it's got to be discussed and because it would have a significant impact to some cities and towns and outside the narrow financial sanctions that you mentioned that the Trump administration could apply are there any other negative impacts that you can think of here in Vermont and I'll say I just have a couple of minutes left so in terms of passing policies blow back from the Trump administration is there any other negative consequence you can think of for not complying with these orders? well again it's not the issue we're not being forced to comply I don't think that's I think as Jay articulated those incentives are perhaps an issue that needs to be discussed a lot look I think what the first two weeks of the last two weeks have shown whether it's a downside or an upside this is going to be a fight and when you look at it from a perspective you're talking about states' rights you're talking about the health, the safety and the welfare of Vermont citizens we have a role to play in that and that is a fight worth having we are all out of time so we'll have to leave it there I thank you both for shedding a little more light on this tricky situation Vermont and other states find themselves in and on behalf of Orca Media and Vermont PBS we thank you for tuning in and watching join us again next week here at the Vermont State House