Federal Judge Fred Biery Discusses Immigration Policy, Due Process, and the Power of "We the People"

Welcome to Big City, Small Town, the weekly podcast all about San Antonio and the people who make it go and grow. I'm your host, Bob Rivard, and our guest this week is an esteemed one. We have U.S. district Judge Fred Beery from the Western District of Texas in the studio with us. Judge Beery, welcome to Big City, Small Town. Well, thank you for the invitation. The last time I was in this building, I was walking around in my underwear. Well, this was the original Wolf and Markson department store opened in 1903. I know you weren't born that early, but I'm assuming you're telling a story about your childhood and not adult behavior. No, I was an adult walking around this building in my underwear. After Wolf and Marsh closed, the US army leased the ground floor for the pre induction physical for those of us who were getting ready to go off to army basic training. So you come in and take all your clothes off except your underwear, and they line you up and you go through all these medical techs and they check your pulse on your ears and your eyes. And so that's the last time I was here. 1969. That was 1969. Right. Wow. And then this building became a property of Frostbank, and then eventually Graham Weston, and now it's home to Geekdom. And this is where we office. And here we are in the podcast studio, so we're glad to have you. If there's anyone in our audience that hasn't heard your name or know about you, let me just say that you are known nationally, maybe even internationally for your very erudite, literary, often humorous, almost always humorous, sometimes pun riddled legal opinions. And I'm, I'm curious what started you on that path. And you were a county district judge. Of course you were. You know, you're a San Antonio native, I think from the west side. We can talk about that. Your origin story, you became a lawyer. Lawyer, practiced law here, then became a county court, eventually went to the Fourth Court of Appeals. That's where you were serving in 1994 when President Clinton nominated you to become a federal judge. So you've been on the federal bench for 32 years and counting. That's an extraordinarily long record. And at one, at one point, I know you were the chief judge from, I think, 2010-15, but you're clearly the senior judge in terms of rank in the Western District, correct? Yes. And there's about four of you in San Antonio. There's 15 of us total for the whole 92,000 square miles in seven different divisions. That district, I know it goes from here all the way out to West Texas. Where is that district? It goes north to Austin, Waco, and then west to Midland, Pecos, further west to El Paso and then down the Rio Grande river to Del rio and back IH10, Highway 90 back to San Antonio. That is a very large geographical footprint. I have driven the whole thing. Well, go back to your very distinctive style of rendering opinions. And for those who have never been in a federal court, I would invite you to go to federal court here in San Antonio, downtown San Antonio, and go to one of Judge Beery's hearings because the atmosphere in the courtroom is very much like it is in his written opinions. And it's a worthwhile experience, experience as a citizen to sit in federal court for a few hours or a day. Well, my initial lesson about stylistic differences in legal writing was from a Justice Charles Moylan, who lectured at the National Judicial College when I was 33 years old at a judicial conference. And he was known, he was out of Maryland, an appellate court. He was known for writing creatively. And he said, you know, people can disagree with me, but don't mess with my style. And I took that to heart. And I never had an occasion to write creatively until I got to the fourth Court of Appeals. I tried it there on one occasion with a divorce case called Rose vs. Rose. And Justice Shirley Butts was on the panel. She was very professorial, very traditional, and the opening line was Rose versus Rose. This case presents thorny issues. And just as much like the school marm that she was, said, now, Fred, we don't write that way. I said, yes, ma'. Am. So I gave that up on the appellate bench because you have to bounce things off of two other people on the panel. But I got to the federal bench and I don't have to check with anyone. So do you ever hear from your judicial peers on appeals court either at the 5th Court of Appeals in New Orleans, which is the appeals court for the Western District, or even higher, the US Supreme Court, that comment favorably or unfavorably on the tone of your opinions? No. Other than this last case with Liam Ramos, there was a footnote in the majority opinion that noted the creative footnotes that I had in my opinion, but it was neutral in terms of praise or criticism. And Liam Ramos, just to remind our audience, In January of 2026, you ruled that he needed to be released from prison. 5 year old child and not deported. He, I believe, was arrested in Minneapolis. If I'm not Mistaken and brought down here into federal custody, and finally, under your federal order, was released. And do you know his whereabouts today? The case I had had to do with habeas corpus and whether he should be released, not outright, but whether he should be released to have due process under the Constitution, which was the legal ruling. Yes, he and his father are entitled to that. So they were released. They went back to Minneapolis. My understanding is that they did further work within the immigration court system, which is an administrative law system under the executive branch that is not independent like the Article 3 judges are. And I have not heard what the result of that was, whether they were granted asylum or whether they've been deported back to Ecuador. As I noted in the opinion, ultimately, Liam and his father may have to return to their home country, either voluntarily or by deportation process, but they deserve first to have due process. And that was the ruling. And then it's up to that separate immigration court system. Is due process still not just the letter of the law, but in practice, is it something that is still being honored? I wonder what the impact of the Trump administration's immigration policies has been on your docket and whether or not in your opinion, you know, we're following the law here, or whether you and your colleagues are being burdened with legal challenges because the law is not being followed. Well, we've had 10,000 cases filed in this administration, thousands of which are the habeas corpus due process issue. 90% of them have been ruled in favor of due process and against the administration. This is 10,000 in the Western District. No, the whole country. The whole country. Politico had an analysis of it recently. Okay. And that specific issue, originally, the Fifth Circuit had said in two cases, no, the statute allows for mandatory detention of these people. Then the due process constitutional issue was raised, like it was in Ramos. And most of the judges that I know of and the reading I've done are granting release on bond or home confinement, something. But to get out of detention so they can have that due process. That issue now is before the Fifth Circuit. We're anticipating a ruling any day that if the Fifth Circuit says no, you can't release people under these immigration circumstances on that basis, then all of these folks will just have to stay in detention. If the Fifth Circuit says yes, the constitutional concept of due process does apply, then of course the judges can continue to release them under strict scrutiny of, you need to have an ankle monitor, or you can't just let them go, and we don't, but at least they have an opportunity then to Pursue asylum claim or my mother was really born here and therefore I'm a citizen. Those kinds of exceptions to deportation. I think an awful lot of us believe that the immigration system in our country is broken, that we've traditionally, we're a country built on immigration, and the economy dictates that there's constantly millions of jobs that would normally be filled by immigrants, the bottom rung of the ladder, as it were. And at the same time, most of us recognize you can't have mobs of people massively assembling on the border and just crossing without documentation, that that doesn't work either. What is your view after being on the bench all these decades and now facing, you know, your fair share of these 10,000 cases that have influenced the docket here so much and the work you do? What are your thoughts about the system? Well, I tell these mostly young men, although occasionally young women who have snuck in illegally, they've been deported before, and then, therefore, they are prosecuted for illegal reentry after deportation, which is a federal felony. And I'll have 15 or 20 of them in court. I'll say, look, we understand why you want to be here, but you can't be here unless you do it legally. Like the people that I have the good fortune to swear in at naturalization ceremonies. They've taken four to six years and become Americans the right way. But unless you do that, regardless of what administration it is, the law is you can't come here illegally. And so then, of course, and many of them who are apprehended are apprehended not simply because they're here illegally, but because they get arrested for beating their spouse, dwi, drugs, other things that if they were here illegally and stayed out of trouble, they might not have gotten caught. But that happens more often than not. How much of your work week is involved with issues like that? And there's four of you here at the nice, beautiful federal courthouse in downtown San Antonio that we built and 15 in the whole district. What's the docket look like? And are you guys overwhelmed by these immigration cases, or is the system processing people? In due course, in normal times, we would have half of our docket each of us is criminal, half civil, being traditional contracts, patent, medical malpractice, employment law, that sort of thing, with matters related to things other than immigration. Now, where we would have 1500 civil cases a year, divided among the four of us, this year, we're on track to have 8000 civil cases, 6500 of which will be these immigration habeas corpus cases. Now, if the fifth Circuit says it's okay to keep these folks in detention, then presumably those cases will either be put on hold until the Supreme Court ruled and or the lawyers and the parties will quit filing them because there's no relief. One federal judge, no matter how competent, can't possibly handle 2,000 cases in the course of a year. So does the docket just back up or. Yes, the regular docket backs up on the civil side, we have to give precedence on the criminal side. That's the law. So we do what we need to do to deal with speedy trial issues and get these and most 98, 0.9% of the felony criminal cases plead guilty. But you still have to go through the process of negotiations, pretrial hearings, if there are any, that sort of thing. So we try a very few by jury trial, civil or criminal. So we're able to muddle along. Our staff is overwhelmed. Not only the court's lawyers and the administrative people, but also the U.S. attorney's lawyers and the U.S. attorney's staff, which you've got to have two equal sides to have a lawsuit. We've been able to get some extra funding for four additional law clerk positions which will help some, but these are young folks right out of school. It's a two year position. By the time you know where the front door is, your two years is almost up. Now, on the U.S. attorney side, there are districts in the country that don't have that overwhelming caseload. So most of these heaviest cases can be dealt with on pleadings. So they have people, US Attorneys from other districts who are helping out here. They'll come in physically and well, or by remote, by Zoom or computers, but they're still overwhelmed. Do we have any empty chairs for federal judges or. Here we are in the fastest growing part of the country in terms of population growth. Does the President or Congress have the right to, to look at the population growth here and say we need two more federal judges? And even though things are very partisan and the Democrats don't want to approve Republican appointees and Republicans don't want to approve Democratic appointees, is there a, a need and a trend toward bringing you some help? Well, they could if they wanted to. We don't have any vacancies in San Antonio right now. There's one vacancy in Waco, I think, and maybe one in El Paso. But as far as new judgeships, there haven't been any new judgeships since I think the 90s and the Congress would have to pass that. And historically, what that used to being. I don't know how it would work now. Well, the Western District of Texas is going to get five new judges. I'm Senator so and so from Nebraska. Now we don't have a whole lot of cases, but I get to name who the federal judges are to the White House. And so I'm the chairman of the committee that makes this process go forward. So if Texas is going to get five new judgeships, I want five also, which even though they may not be needed. So that's the political back and forth that you get into, but it would have to be a new bill. Well, I want to go back to your artfully written opinions, and I've read many of them, and I just wonder whether or not you've written any recently that come to mind or if there's any over the period of your career that you would point to that were particularly memorable or drew the kind of reaction that landed you in the Wall Street Journal and Washington Post and other national media. Well, the most recent one was the Ramos case, the little bunny ear boy, the one locally that got a lot of attention, both pro and con, was the strip club ordinance that I wrote in double entendre with many puns about. The subtitle of the opinion was the Itsy Bitsy Teeny Weeny bikini case. And it went downhill from there. And that was over where strip clubs could be located, whether the city could ordinance was enforceable, requiring more clothing than what the young ladies wanted to wear. And remind us the outcome of that case. The outcome was I held that the ordinance was enforceable and the strip club owners did not appeal, so that the ordinance is now in effect. And a lot of those places went out of business or they went to places other than the city of San Antonio. So, all right, we've covered strip clubs. Let's switch to a more serious topic, which is our 250th anniversary here in the United States. And this episode is airing on Friday, July 3, one day before the 4th of July in the national celebration. And you wrote an essay for us that we published as our newsletter two days ago on July 1st. Instead of me writing the newsletter every week, we turned it over to you. So talk a little bit about your essay and what motivated that and what your thematic points were there for people in our audience that haven't read it yet, but I hope go back and do read it. I've always been interested in American history. I majored in what was called government at a liberal arts Texas Lutheran University back then. Now it's called political science. Minored in psychology, had wonderful teachers from all different aspects of academic learning, broad education, English, history and so forth. And of course went to law school and have seen the ebbs and flows of American history. We have never been in nirvana. We survived the Civil War, it was a bloody mess. But all that was not all roses after that. And then specifically on the court scene, we've seen the court opinions go back and forth over the course of our history. More recently, in the last hundred and twenty some odd years, you had the Gilded Age where you had the billionaires of that time in charge of the political process. And so you had what became known as the nine zero men on the Supreme Court that you were starting to get the more progressive legislation, trying to get social safety net, economic equality and so forth. And those legislative actions were overturned by the Supreme Court. Well, finally, and I don't know if I made the point in this article, but I've made it before, the Supreme Court is not supreme. We the people are supreme. And we the people theoretically could amend the Constitution. But more practically speaking, we the people can vote for legislators and executives who will follow the dictates of what we the people want. In that example, in 1932, we the People voted in what became the New Deal era. Those Supreme Court justices aged out. And then we saw President Roosevelt nominate many. That pendulum swung. Now President Roosevelt, which I disagree with, wanted to pack the court he wanted. Well, it's taken too long for these old guys to go away. Let's expand the court. So let's add some more. Well, no. So if you add this administration adds three more, well then it goes the other way. Well, let's add three more. Well, eventually you get a Supreme Court that's nothing more than a legislative body. And that's not the way the founders set up the system. So that didn't happen. But in the meantime, of course now in the modern era, the court has gone the direction that some people don't like. And the that's what we the people voted for in terms of those newer nominees. And we the people can change it as long as we have a democratic system and the Republic survives. I used to proudly say to young student classes, our system compared to others is like a football field. You take some systems like Cuba, you had Batista on the five yard line and you had and then it swung to Castro on the five yard line. Iran, you had the Shah on the five yard line and then you have the Ayatollah on the other five yard line. Our system works between the 40 and the 40. Historically it has, but it's not going to ever find equilibrium on the 50 yard line. It's going to swing back and forth. Are you worried about the future of the country? The title of your essay is Will our Republic celebrate its 500th anniversary? I am. If we the people don't start reading and listening and exercising their ability to govern ourselves, and if we just turn it over to pundits or people who have power and don't exercise that, then we will go the way of other great empires that we've seen. Great Britain, Rome, Greece, Spain, Portugal, all of those were great and wealthy empires that still exist, but they're not like they were. And the difference among others is that those systems were based on the I, I, the King, I, the emperor. Our system is based on the we, but it depends on the we doing what the we ought to do in terms of being self educated in governing ourselves. And anyone who reads this essay, judge, will realize that although you're careful about what you write and just as careful about what you don't write, if we take for example the section in the text in in the essay where you talk about the Constitution and Article 1, Section 8, where Congress has the power, uniquely among the three branches of government to declare war, one can't read that without understanding that the Trump administration has launched military adventures in Venezuela with the capture of President Maduro, is engaged in a multi month episode in Iran in concert with Israel. It's sort of an undeclared war and military regime. So how do you balance what you can say and not say as a sitting federal judge or what you write in? Well, in terms of foreign policy, historically the courts have said that's not our game, that's up to the two political branches. In terms of the particular war issue, that's up to Congress. We saw that happen in the Vietnam era, the War Powers act response. There obviously are some political people who are pushing for that now, but the courts are not going to get involved. And then to your specific question about writing, we have to be very careful in terms of speaking and so forth not to talk about issues that may come before the court because otherwise we would be conflicted out. Many of us, I think by tradition have looked to the judicial branch in the federal government as the place where we can rely on the courts and the judges to rise above the politics. Because between the executive branch and Congress, when there's conflict and in society in general and issue impartial law based decisions, I believe that remains the mission. Do you worry as a US District Judge that tradition at your level is being undermined by the politicization of the US Supreme Court Again, that just as it was very politicized in the Gilded Age, that we're in a new Gilded Age and, and it's being politicized anew and that the work that's being done at your level is being undermined at a higher level. I have great hope in the power of lifetime appointment. And we have seen that happen time and time again. President Eisenhower appointed Earl Warren, who was the Republican governor of California, but who then became known as the Warren Court, the great civil rights court of the 1960s. And President Eisenhower was quoted, as I recall of saying, that's the worst appointment I ever made. But we're appointed for life and there's a certain freedom of that. And it used to be that there was no reference to, well, this judge ruled this way and he was appointed by Bill Clinton or he was appointed by Ronald Reagan. Now of course that standard operating procedure, which I'm dismayed about, but that's where it has become. I've ruled on two big cases against my Democratic friends that I came to adulthood with and professional life with. One got affirmed and one was settled after my opinion. Share those cases with us in summary. One of them was the the case where public policy decision where we used to have, and you remember this, we used to have this city charter that was amended to very short two year terms and you couldn't get anything. Those were the harshest term limits in the country at the municipal level. And so my friend Helen Dutmer was the named plaintiff. She filed suit claiming that to be unconstitutional based I've forgotten what ground. At any rate, I wrote that the city charter is like the Constitution and like the Constitution, we the people can amend the city charter. We the people are also allowed to make mistakes. And that was a terrible mistake we the people did of having those extreme term limits. But there's nothing under the federal Constitution that makes that illegal or unenforceable. And analogously I said we the people are entitled and did make a mistake in the federal Constitution. It was called the prohibition of alcohol. And we the people decided that wasn't such a good idea. So we the people repeal that. On the other hand, we the people decided that one of my heroes, Franklin Delano Roosevelt, should not be able or anyone should not be able to be president for four terms. And so we the people amended the Constitution and said no, there's only two. So I ruled in favor of the city and against Ms. Dutler and the people who were interested in and then the city, they eventually they amended the charter. We the people made it two four year terms. We finally well I don't live in the city of San Antonio, so people of San Antonio said yeah, this is too extreme. First we made it four two year terms and we amended it yet again another time and made it two four year terms. We're both baby boomer generation individuals. Judge so I can ask you this question, but what is your view then when you talked about lifetime appointments for the movement in some quarters that there should be term limits on even federal judges because we're all living much longer and whether you're the president or you're the judge, infirmity can set in and yet people aren't necessarily willing to leave office because of that change in their ability to govern. Now you're getting personal. I'm talking about myself I think as a journalist. But first of all judicial independence is paramount. Now to your point, yes, the aging process is not like it was in 1789 and we now have judges in their 90s. Justice Ginsburg was in her 80s and she didn't want to let go. I'm 79 almost. I'm still fit. My staff have been told and I think they will do it if I start losing it. You tell me there is a process within the judicial branch of colleagues encouraging. Say you know Fred, you're kind of missing a step now. Does it work? Will peers be that candid with one another? I don't know. I don't know how often it has happened. Most judges prefer to take what is called senior status so that they are on a part time basis. They can do other things or retire and pursue other issues or fund or employment. There's one case pending of a 98 year old just judge on the court of the D.C. circuit and her colleagues are trying to get her out and she's fighting it and that's somewhere in I think there's a lawsuit. They tried to take her caseload away. In other words, that's the ultimate result. I suppose the other judges, well okay, you can have your office, you can have your staff but you're not going to have any cases. And that's I think was the tactic that was tried that resulted in her filing a lawsuit and put pushing back where that is. I don't know. Wasn't it famously President Obama that is said to have sat down with Judge Ginsburg and explained that if she would retire now he would have the privilege of nominating her replacement and if she waited, that a Republican could win and it would turn the court in the other direction. But she she declined to we are independent cusses. So now the reverse of that story I've told or have read, that when Thurgood Marshall was on the court and President Reagan was president, that Thurgood Marshall instructed his staff that if I were to die and President Reagan is still in office, I want you to have me embalmed, sit me at my desk, and don't tell anybody I'm dead until President Reagan is gone. Is this facetious? No, that's the story. I don't know how true it is, but it's a great story. Well, you tell great stories and that's probably a pretty good place for us to wrap up here as we run out of time. But I appreciate you coming on the podcast, Judge. I've always enjoyed your opinions and I look forward to the future ones you write. Okay, I have one last thing. This young lawyer recently was in court. We finished and he said it's still the court was full. And Judge, going back to this aging thing, I just want to tell you I really enjoyed your last opinion, meaning the Ramos case. I said, counsel, could you use the word latest instead of last? So with that, thank you very much for inviting me. Great to have you. All right, y', all, thanks for listening to this episode of Big City Small Town. If you enjoyed the conversation, please do share it with friends and colleagues who might find it interesting. You can also keep up with our newsletters, Bob Rivard's Midweek and My own San Antonio Something. You can find those linked up@bigcitysmalltown.com our show big city Small Town is made possible by Westin Urban building a city our children want to call home. Geekdom, where startups are born and smart ideas become businesses. 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