Latest / Bloomberg Law / SCOTUS: Trump Immigration Wins & 'Vampire' Gun Law

Transcript

SCOTUS: Trump Immigration Wins & 'Vampire' Gun Law · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: The Supreme Court is nearing the end of its term
0:11
Speaker 2: and the number of cases decided along ideological lines is mounting. Today,
0:16
Speaker 2: the Court decided four cases, and three were by six
0:20
Speaker 2: to three votes, with the conservative justices in the majority
0:24
Speaker 2: and the liberal justices in descent. That makes eight such
0:28
Speaker 2: ideological splits out of ten cases announced this week. The
0:33
Speaker 2: Court strengthened the constitutional right to carry a gun in
0:36
Speaker 2: one of those cases. A Hawaii law that bars people
0:40
Speaker 2: from bringing guns onto private property open to the public
0:44
Speaker 2: like stores and hotels without the owner's permission, is known
0:49
Speaker 2: as the vampire rule. That's because vampires, as every horror
0:53
Speaker 2: fan knows, need an invitation to enter a home. Well,
0:57
Speaker 2: the Court's six conservatives just ove a stake into the
1:01
Speaker 2: Hawaii law, saying it violates the Second Amendment. The majority
1:06
Speaker 2: opinion was written by Justice Samuel Alito, who had a
1:10
Speaker 2: what's the big deal attitude during the oral arguments?
1:13
Speaker 3: Why does it matter if store owners and owners of
1:17
Speaker 3: private property is that are generally open to the public
1:21
Speaker 3: don't like guns. Why is it a big deal to
1:23
Speaker 3: say they want people carrying guns? To stay out just
1:27
Speaker 3: put up a sign.
1:28
Speaker 2: But the courts, three liberals, thought it was a big
1:31
Speaker 2: deal and dissented. My guest is Second Amendment expert Andrew Willinger,
1:35
Speaker 2: a professor at the Georgia State University College of Law.
1:39
Speaker 2: Andrew tell us about these so called vampire laws.
1:43
Speaker 4: In terms of this specific type of law, it's a
1:46
Speaker 4: pretty recent innovation in the sense that we've only really
1:49
Speaker 4: seen this since the Brewin decision.
1:52
Speaker 5: So a group of five.
1:53
Speaker 4: States, including Hawaii, in the wake of brew In, which
1:56
Speaker 4: you'll recall, required states to be more leaning in granting
2:00
Speaker 4: concealed carry permits. As a general matter, these states that
2:05
Speaker 4: had previously had very restrictive permiting laws changed their laws,
2:10
Speaker 4: but also enacted new restrictions sensitive place spans. And again,
2:16
Speaker 4: in a case of this group of five states, what
2:19
Speaker 4: they said is that you want to carry your firearm
2:21
Speaker 4: onto private property that's open to the public, so something
2:25
Speaker 4: like a shopping mall and another type of business establishment,
2:28
Speaker 4: whatever it might be. The default is that you cannot
2:32
Speaker 4: do that unless you have express consent from the property owner.
2:36
Speaker 4: And this was a change from the way things tended
2:39
Speaker 4: to work before. Right before it was you could bring
2:41
Speaker 4: your gun onto a private property open to the public
2:44
Speaker 4: unless the property owner posted a sign saying no gun's allowed.
2:48
Speaker 2: And since we're going to be talking about bruin a lot,
2:50
Speaker 2: it established a Second Amendment right to carry a handgun
2:54
Speaker 2: in public and a new legal test that restrictions on
2:58
Speaker 2: Second Amendment rights are or missible only if the government
3:02
Speaker 2: can show a history of similar or analogous restrictions. Okay,
3:07
Speaker 2: turning back to the Hawai case. Now, so it's private property.
3:12
Speaker 2: The property owner has a right to decide who's going
3:15
Speaker 2: to come on his or her property. So why did
3:18
Speaker 2: the sixth Justices strike down the law?
3:21
Speaker 4: Yeah, exactly, so, you're right, it deals with a subset
3:24
Speaker 4: of private property. But I think you're asking goes really
3:28
Speaker 4: to this issue that the Court I think gave short
3:31
Speaker 4: shrift to. We maybe got a taste of that in
3:34
Speaker 4: the oral argument. I think there's actually a very difficult
3:37
Speaker 4: question that Justice Jackson spent a fair amount of time
3:40
Speaker 4: on in her.
3:41
Speaker 5: Descent about how this.
3:44
Speaker 4: As a potential Second Amendment issue, interacts with property law
3:48
Speaker 4: and the well established right to exclude that a property
3:51
Speaker 4: owner has. And that would basically be a question that
3:56
Speaker 4: you would put at the threshold. Step one sort of
3:59
Speaker 4: part of this bruined test. Right, you first need to
4:03
Speaker 4: make sure that the law you're dealing with actually implicates
4:06
Speaker 4: the Second Amendment, actually regulates conduct protected by the Second Amendment.
4:10
Speaker 5: Only then do you go into the.
4:12
Speaker 4: Historical analog part of the test, the part that has
4:16
Speaker 4: gotten I think the most attention, And here I think
4:19
Speaker 4: one of the big takeaways is that the majority siks
4:22
Speaker 4: Justice majority here really does it give a lot of analysis.
4:26
Speaker 4: Justice Alito, writing for the court, sort of says, look,
4:28
Speaker 4: it's anything that hampers the ability of a gun owner
4:32
Speaker 4: to bring their gun wherever they might want to, and
4:35
Speaker 4: that's enough.
4:35
Speaker 1: There.
4:36
Speaker 4: You have a law that implicates the Second Amendment. And
4:39
Speaker 4: then you move on to the second step. And critically,
4:42
Speaker 4: the majority seems to say, there's no historical analysis, no
4:46
Speaker 4: historical materials that really come to bear on that threshold question.
4:50
Speaker 4: It's just sort of a judicial interpretation of the text,
4:54
Speaker 4: which I should note is pretty subjective, right according to
4:57
Speaker 4: the judge. You're gonna have different judges thinking, you know, oh,
5:00
Speaker 4: this does or does not implicate the right to keep
5:02
Speaker 4: in bear arms. But that's what we seem to get
5:05
Speaker 4: from the court here.
5:06
Speaker 2: I mean, property owners can still put up a sign
5:09
Speaker 2: right and say no gun's allowed.
5:11
Speaker 5: They can do that in Hawaii, they can do that
5:14
Speaker 5: in any state.
5:15
Speaker 4: And it's also worth noting that this decision doesn't talk
5:19
Speaker 4: about private property not open to the public, So a
5:23
Speaker 4: private house, for example, there seems to be no debate
5:25
Speaker 4: that a homeowner has the right to prohibit firearms, prohibit
5:30
Speaker 4: you know, a visitor from bringing firearms into the house.
5:33
Speaker 4: And I should also say, like, there are potential ways
5:36
Speaker 4: that states like Hawaii could maybe get to a similar
5:40
Speaker 4: place with a law that's drafted a little bit differently.
5:43
Speaker 4: You know. One way that's sometimes talked about it is
5:46
Speaker 4: to sort of force the choice, So force the business
5:49
Speaker 4: owner to actually make a choice about whether gun carrying
5:52
Speaker 4: is permitted or banned when the business applies for or
5:57
Speaker 4: has to renew their business license, so they'll actually have
5:59
Speaker 4: to make it on that form. And the court doesn't
6:02
Speaker 4: really seem to say that that's a problem atol. It's
6:04
Speaker 4: just the fact here that the state is legislating a
6:08
Speaker 4: default for those business owners that haven't made a choice,
6:11
Speaker 4: and then criminalizing on the back end is the problem.
6:15
Speaker 2: So then how important is this decision If proper owners
6:18
Speaker 2: can still put up a sign and say no gun's allowed.
6:22
Speaker 4: I think in one sense it's narrow, and that's the
6:25
Speaker 4: way we've been talking about.
6:26
Speaker 1: Right.
6:26
Speaker 5: We're talking about five states.
6:28
Speaker 4: Now, to be sure, those are populous states, so I
6:31
Speaker 4: think it's about twenty percent of the population, but five
6:34
Speaker 4: states and laws that are not just recent but basically
6:38
Speaker 4: haven't been enforced because they've all been challenged in court
6:41
Speaker 4: and they've been legal proceedings. Right, So in that sense,
6:44
Speaker 4: it's a pretty narrow decision that then maybe doesn't have
6:46
Speaker 4: a huge impact and there may be some workarounds. I
6:49
Speaker 4: think the bigger impacts are sort of doctrinal in how
6:54
Speaker 4: the court's applying this test that we got in the
6:56
Speaker 4: Brewing case from now four years ago, and there I
7:00
Speaker 4: think the signs are that this is a pretty strict test.
7:04
Speaker 4: Some of the decisions the United States versus Rahiemi, we
7:07
Speaker 4: saw some signs like maybe it's going to be.
7:08
Speaker 5: More flexible test, right just as bears.
7:11
Speaker 4: It seems to be maybe on the fence about you know,
7:13
Speaker 4: how strict of an approaches, this is how many gun
7:15
Speaker 4: laws are actually going to fall when you know, these
7:18
Speaker 4: cases get up to the Supreme Court, and I think
7:20
Speaker 4: this is sort of a step in.
7:21
Speaker 5: The other direction of a pretty strict.
7:24
Speaker 4: Test, because if you have this very very broad, you know,
7:28
Speaker 4: textual definition at step one of the people of arms
7:32
Speaker 4: of what types of restrictions implicate the Second Amendment, and
7:36
Speaker 4: then you have at step two a requirement of a
7:39
Speaker 4: pretty close historical analog which I think is what the
7:42
Speaker 4: court's doing here. Again, that's the second step which the Court.
7:45
Speaker 5: Does get to.
7:46
Speaker 4: That's a difficult test for the government to meet, and
7:49
Speaker 4: so I think this casts some doubt on any legislative
7:53
Speaker 4: effort to innovate in this space, because again we're seeing
7:56
Speaker 4: these laws that were passed in the wake of the
7:58
Speaker 4: Brewing decision is sort of new approach that does draw
8:02
Speaker 4: on some maybe historical parallels. At least the state thought so,
8:06
Speaker 4: but the court that doesn't work, and there are probably
8:09
Speaker 4: many other legislative efforts that may not work if.
8:12
Speaker 5: This is the version of Bruin that that is going
8:14
Speaker 5: to stand.
8:15
Speaker 2: The state did bring up laws that they thought were analogous,
8:19
Speaker 2: but the Conservatives weren't convinced. And with this Bruin test,
8:23
Speaker 2: it's so much a matter of judgment calls.
8:27
Speaker 5: You know, it's interesting. Justice Hagen is by herself.
8:30
Speaker 4: She doesn't join the Jackson des said, and she writes
8:33
Speaker 4: a very short descent, basically saying, look, I'm putting aside
8:37
Speaker 4: this question. You know, she thinks Bruin is wrong, but
8:39
Speaker 4: she didn't talk about that. She doesn't talk about step one.
8:41
Speaker 4: She just says, look, you know, there's this set of
8:43
Speaker 4: historical laws from around the time of the founding that
8:46
Speaker 4: did something similar, and it's not exactly the same, and
8:49
Speaker 4: they may have been directed towards different legislative concerns, but
8:53
Speaker 4: I think they're close enough.
8:55
Speaker 1: Now.
8:55
Speaker 4: Again, the fact that that's only one justice tells you something.
8:58
Speaker 4: But I think the analysis by Justice Alito and then
9:02
Speaker 4: Justice bear It as well, it's a bit of a
9:05
Speaker 4: shift to a more restrictive version of brew It at
9:09
Speaker 4: that second step, because they really are parsing pretty closely,
9:12
Speaker 4: at least when you talk about these anti poaching laws
9:15
Speaker 4: that I think sort of the primary analog. The state
9:18
Speaker 4: also has this Louisiana law, which there's a whole nother
9:21
Speaker 4: discussion about, but the anti poaching laws, there's a pretty
9:25
Speaker 4: close dissection of kind of what's what's driving those what
9:27
Speaker 4: exact type of property was this historically, And that's that's
9:31
Speaker 4: a more restrictive version, I think than we saw in Raheemi.
9:34
Speaker 2: There are other parts of this Hawaii law that weren't
9:38
Speaker 2: an issue at the Supreme Court that ban carrying of
9:40
Speaker 2: firearms in fifteen sensitive locations, including government buildings, public parks,
9:46
Speaker 2: and beaches and bars and restaurants that serve alcohol. Now
9:50
Speaker 2: that's being challenged in lower courts. Do you think that
9:54
Speaker 2: even that is, you know, a step too far for
9:57
Speaker 2: this court that they would outlaw even that.
10:00
Speaker 4: I think you're right to identify that as probably one
10:03
Speaker 4: of the next big cases. And I don't know exactly
10:07
Speaker 4: when we'll see this get up to the Supreme Court
10:09
Speaker 4: or which case they'll take, but I think they have
10:11
Speaker 4: to decide some of these sensitive places bands. I think
10:14
Speaker 4: what's interesting about Justice Alito's opinion here is that it
10:18
Speaker 4: does seem to lean pretty heavily into this idea that
10:22
Speaker 4: you look at the collective burden of the state's gun
10:26
Speaker 4: regulations on gun owners right. So he's emphasizing this point
10:29
Speaker 4: that Judge Van Dyck made below, that you know, there's
10:33
Speaker 4: ninety plus percent of property that's sort of off limits
10:35
Speaker 4: if you take into account the private property default right,
10:39
Speaker 4: and you add up all these sensitive places. So I'm
10:42
Speaker 4: not quite sure what the Court's going to do with
10:44
Speaker 4: that or how it fits into Bruin, right, because you
10:47
Speaker 4: would think under Brewin you would just go play location
10:49
Speaker 4: by location and say, is there a historical analog for
10:52
Speaker 4: this type of a ban in this type of place?
10:55
Speaker 4: But what if the answer is yes, and then you
10:58
Speaker 4: add up all those bands and the court is sort
11:01
Speaker 4: of still worried that it's too inconvenient for gun owners.
11:04
Speaker 4: I'm not sure, but reading a little bit into Alito's opinion,
11:08
Speaker 4: I think there's at least some justices in that six
11:11
Speaker 4: justice majority that may be willing to strike down some
11:14
Speaker 4: of these sensitive place laws. I mean, I would think
11:16
Speaker 4: not all of them, but some of them on the
11:18
Speaker 4: basis that you add them up together and this is
11:21
Speaker 4: just too inconvenient for somebody who wants to carry their
11:23
Speaker 4: gun around.
11:24
Speaker 2: It's been a remarkable expansion of gun rights in just
11:27
Speaker 2: a few years. Thanks so much, Andrew. That's Professor Andrew
11:31
Speaker 2: Willinger of the Georgia State University College of Law. A note.
11:36
Speaker 2: Michael Bloomberg, the founder and majority owner of Bloomberg LP,
11:40
Speaker 2: the parent company of Bloomberg Radio, is a donor to
11:43
Speaker 2: groups that support gun control, including Every Town for Gun Safety.
11:48
Speaker 2: Coming up, the Court gives Trump two immigration wins. This
11:51
Speaker 2: is Bloomberg. The Supreme Court handed two immigration wins to
11:57
Speaker 2: the Trump administration today six to three vote down ideological lines.
12:03
Speaker 2: The Justice is said that President Trump has the power
12:07
Speaker 2: to end legal protections called Temporary Protected status for people
12:11
Speaker 2: from crisis ridden countries. The decision means the administration can
12:16
Speaker 2: deport three hundred and fifty thousand Haitians and seven thousand
12:20
Speaker 2: Syrians who've been living here legally with TPS status. The
12:24
Speaker 2: ruling will buntress the administration's efforts to terminate TPS for
12:29
Speaker 2: eleven other countries. And in the same six to three lineup,
12:34
Speaker 2: the Court ruled that migrants must actually set foot in
12:38
Speaker 2: the United States before applying for asylum. Joining me is
12:42
Speaker 2: immigration law expert Leon Fresco, a partner at Holland and
12:45
Speaker 2: Knight In, the former head of the Office of Immigration
12:48
Speaker 2: Litigation during the Obama administration. Leon, We've talked about TPS before,
12:54
Speaker 2: but remind us about it in what the pros and
12:56
Speaker 2: cons are in this case.
12:58
Speaker 1: Temporary Protected Style is a statute that the Congress passed
13:02
Speaker 1: and that the President signed that says that when there's
13:05
Speaker 1: things like wars or famines or natural disasters, and it
13:12
Speaker 1: wouldn't make any sense for the United States to deport
13:15
Speaker 1: people to a specific country anyway and no one would
13:18
Speaker 1: be expected to go home, then the government can temporarily
13:22
Speaker 1: protect them from being undocumented and thus having to be
13:27
Speaker 1: deported to that location. And those determinations are made every
13:31
Speaker 1: eighteen months. And there had been a criticism prior to
13:35
Speaker 1: President Trump's first term because this was attempted in the
13:39
Speaker 1: first term, but now in the second term too, that
13:41
Speaker 1: whenever a country was appointed for temporary protected status, they
13:44
Speaker 1: were never unappointed, so whatever the temporary emergency was never
13:49
Speaker 1: ceased to exist. To be fair, there were some people
13:52
Speaker 1: in the United States who had temporary protected status since
13:56
Speaker 1: nineteen ninety six in various natural disasters that occurred, so
14:01
Speaker 1: people thought, hey, you know, we need to get this
14:03
Speaker 1: under some order. And then the flip side was, well,
14:06
Speaker 1: people had already developed the roots and had us it
14:09
Speaker 1: is in children, and this was extremely cruel in order
14:12
Speaker 1: to make them suddenly go home after all these years.
14:15
Speaker 1: So you could see the problem on both sides of
14:17
Speaker 1: this equation. They're good arguments on both.
14:19
Speaker 2: Sides, and what's the issue in this case involving TPS
14:23
Speaker 2: status for Haitians and Syrians.
14:26
Speaker 1: The problem in this particular case is that the cases
14:30
Speaker 1: involving Haiti and Syria, the idea was that the plaintiffs
14:35
Speaker 1: were suing saying that there wasn't an analysis done as
14:39
Speaker 1: to whether it was actually dangerous to send people back
14:42
Speaker 1: to Haiti or Syria. And as your listeners, no, Haiti
14:45
Speaker 1: and Syria are not exactly like some of the other
14:48
Speaker 1: countries with TPS. These are countries that continue to have
14:51
Speaker 1: significant problems, and deportation to both of these countries is
14:56
Speaker 1: quite complicated and quite difficult. So the plaintiffs said that
15:00
Speaker 1: there was no way that a determination was actually made
15:04
Speaker 1: because what's supposed to happen is when the eighteen months
15:07
Speaker 1: are coming up to be expired, then the administration is
15:11
Speaker 1: supposed to consult with the Department of Homeland Security the
15:14
Speaker 1: Department of State, get the country conditions and make a
15:18
Speaker 1: determination as to whether those conditions justify an extension of
15:25
Speaker 1: Temporary protected status. And what the plaintiff said was no,
15:30
Speaker 1: that wasn't done. This was a racially animous based decision,
15:35
Speaker 1: meaning the president didn't like immigrants from Syria and from Haiti,
15:40
Speaker 1: and so that's the reason why temporary protected status was
15:45
Speaker 1: not extended. And so the problem is the question in
15:48
Speaker 1: this case was there's an actual judicial review bar. There's
15:52
Speaker 1: a statute called Title eight, Section twelve fifty four AB
15:56
Speaker 1: five A, which precludes judicial review of claims challenging determination
16:02
Speaker 1: of temporary protected status designations. And so the question the
16:07
Speaker 1: Supreme Court was trying to figure out was does that
16:10
Speaker 1: mean just the analysis about whether a country is dangerous
16:16
Speaker 1: or not, or does it mean everything, Meaning that if
16:19
Speaker 1: the President had just said, here's how we're going to
16:21
Speaker 1: decide Haiti, I'm going to blindfold myself and throw a dart,
16:25
Speaker 1: and if the dart hits one location, it will be extended,
16:30
Speaker 1: and if the dart hits another location, it won't be extended.
16:33
Speaker 1: And so the question is could you go to court
16:35
Speaker 1: and challenge even that? And in a six to three decision,
16:40
Speaker 1: essentially what the court said is this means everything. You
16:44
Speaker 1: can't even challenge that, essentially, except you know to the
16:49
Speaker 1: extent that there's a racial claim, You could theoretically maybe
16:53
Speaker 1: get into court if you actually had some very overt evidence,
16:58
Speaker 1: because there.
16:58
Speaker 5: Is evidence in this case.
17:00
Speaker 1: The plaint that's have introduced evidence of racial animus, and
17:02
Speaker 1: that evidence was credited by the district Court and by
17:05
Speaker 1: the Court of Appeals. But here the court said that
17:08
Speaker 1: that evidence of racial discrimination was not enough, that it
17:12
Speaker 1: actually had to be a motivating factor, and that these
17:17
Speaker 1: were just sort of policy views, and that they weren't
17:20
Speaker 1: sufficiently racist enough to actually allow a case like this
17:25
Speaker 1: to go forward. And so that meant that the Haitian
17:28
Speaker 1: and Syrian plaintifts are out of luck, and the Trump
17:30
Speaker 1: administration will be able to end the temporary protective status
17:34
Speaker 1: and start deporting people from Haiti and Syria.
17:37
Speaker 2: The three liberal justices were in dissent, and just as
17:40
Speaker 2: Elaina Kagan quoted extensively from Trump's derogatory comments about Haitian
17:46
Speaker 2: immigrants and we know you talked about s whole countries,
17:50
Speaker 2: she said, the evidence is there playing to see in
17:52
Speaker 2: the president's statements which the majority and for that matter,
17:56
Speaker 2: his own lawyers cannot even bear to repeat the statement's
17:59
Speaker 2: fear shout in their racial undertones and overtones alike, that
18:04
Speaker 2: race entered into the president's resolved to remove Haitians from
18:07
Speaker 2: this country.
18:09
Speaker 1: Yes, I mean, certainly that's what the descent showed. They said,
18:12
Speaker 1: first of all, they don't need to show that race
18:14
Speaker 1: was the only motivating factor for the decision, just that
18:17
Speaker 1: it was one motivating factor. And like you said, they
18:20
Speaker 1: pointed to these extensive public statements by the President about Haitians,
18:24
Speaker 1: which they turned racially charged and reflective of discriminatory attempt.
18:29
Speaker 1: And they said, look, here's the point really at the
18:31
Speaker 1: end of the day, which is that the plant does
18:33
Speaker 1: have not had the trial yet. This is just the
18:36
Speaker 1: eliminary injunction stage, and so how could you at this
18:39
Speaker 1: early stage not say that this is sufficient to meet
18:41
Speaker 1: an initial threshold that would allow you to move forward,
18:46
Speaker 1: you know, just to at least stop it for now
18:48
Speaker 1: while we get to the bottom of what was the
18:50
Speaker 1: true situation here that influenced the TPS termination. But at
18:56
Speaker 1: the end, and this seems to be consistent with what's
18:59
Speaker 1: been going on this entire term, it seems like the
19:03
Speaker 1: Supreme Court patient has worn thin, or there's a fatigue
19:07
Speaker 1: by the Supreme Court for a lot of these immigration
19:09
Speaker 1: challenges now, and they seem to want to let the
19:13
Speaker 1: President have some very broadly way to be able to
19:18
Speaker 1: implement an immigration enforcement restrictive agenda and so this is
19:24
Speaker 1: one where the court has said, look, at the end
19:27
Speaker 1: of the day, if you can open and give TPS
19:30
Speaker 1: to millions of people, you should be equally able to
19:33
Speaker 1: shut it down. And I guess I understand that from
19:36
Speaker 1: sort of a if you were to pick the policy
19:39
Speaker 1: argument and then get the law to justify whatever policy
19:42
Speaker 1: argument you were going to make, it sort of does
19:45
Speaker 1: make sense that why should it be harder to mtps
19:47
Speaker 1: than it is to give TPS since the statue does
19:50
Speaker 1: say temporary and the idea is all of this was discretionary.
19:54
Speaker 1: But you are overcoming some serious trip wires here in
19:59
Speaker 1: terms of saying, really, could you really not review if
20:03
Speaker 1: the president decided to do this by shooting at a dartboard?
20:06
Speaker 1: Is there really not a way to say, hey, that's
20:08
Speaker 1: not the way to do TPS. We're not having a
20:11
Speaker 1: debate here that you said in Haiti there's an eight
20:14
Speaker 1: percent murder raid, and there's really a nine percent murder rate,
20:17
Speaker 1: and so nine is over a threshold that's acceptable and
20:21
Speaker 1: eight is under. We're not having that debate. Of course,
20:24
Speaker 1: Congress shielded that from judicial review, but we're having a
20:28
Speaker 1: debate that you didn't actually even pretend to do the
20:32
Speaker 1: analysis that was necessary in order to actually make a
20:36
Speaker 1: considered decision on TPS. Is that really not reviewable? And
20:41
Speaker 1: that's where this court seems to think, Yes, that's really
20:44
Speaker 1: not reviewable here unless there's some dramatic extreme case that
20:48
Speaker 1: would be very hard in theory to actually ever find.
20:51
Speaker 1: And so that's where this case ends up.
20:54
Speaker 2: So does that mean that the Trump administration now has
20:58
Speaker 2: the go ahead? It tried to dominate protection for thirteen
21:02
Speaker 2: of the seventeen countries I believe who had Temporary protected status,
21:07
Speaker 2: so now it can just go ahead and eliminate TPS
21:10
Speaker 2: for all those other countries.
21:12
Speaker 1: Correct at this point? Now, if you are from one
21:15
Speaker 1: of the countries where TPS has been eliminated, there's probably
21:19
Speaker 1: no hope for you, or I mean even probably is
21:21
Speaker 1: not the right word. There is really no hope for
21:23
Speaker 1: you to get back the TPS unless the President wanted
21:27
Speaker 1: to try to create some other program to not deport
21:30
Speaker 1: people in that fear, but that's highly unlikely. And so yes,
21:33
Speaker 1: all of those individuals will be subject to deportability.
21:37
Speaker 2: So on the ground, how does it work? I mean,
21:39
Speaker 2: you know, okay, we're just going to pick up all
21:41
Speaker 2: the Haitians who had TPS and put them on a plane.
21:45
Speaker 1: Well, here's what happened. So all of the people with
21:47
Speaker 1: TPS have it until a certain date that it expires.
21:50
Speaker 1: If it already expired, then as of this decision, it's expired.
21:54
Speaker 1: If it's going to expire in a week or a
21:56
Speaker 1: month or whenever they got their approval day to Department
22:00
Speaker 1: Homeland Security, lets that continue until that date. And then
22:04
Speaker 1: the day after that expiration date, they are now just
22:07
Speaker 1: like anybody else who the government doesn't really know is
22:11
Speaker 1: here but they know is here, sort.
22:13
Speaker 5: Of kind of thing.
22:14
Speaker 1: And so each of them will have to be given
22:16
Speaker 1: a piece of paper called they notice to a peer.
22:19
Speaker 1: It's like an indictment. This is the immigration quote unquote indictment,
22:23
Speaker 1: starting the removal process. And then they get to make
22:27
Speaker 1: any defenses, so like if they want to apply for asylum,
22:30
Speaker 1: or if they want to say that in the subsequent
22:33
Speaker 1: time they were paroled into the country and they married
22:36
Speaker 1: a US citizen so they should be allowed to stay
22:38
Speaker 1: for that, or who knows. There's not really a lot
22:41
Speaker 1: more defenses there, but asylum would be the main one.
22:44
Speaker 1: Then they can try to stay and ask for asylum,
22:47
Speaker 1: but that's going to be it other than that, if
22:50
Speaker 1: the government gives them a notice to appear and places
22:53
Speaker 1: them in deportation proceedings at some point soon thereafter, they
22:57
Speaker 1: are going to be deported.
22:58
Speaker 2: Tell me up next on the Blog Law Show, I'll
23:01
Speaker 2: continue this conversation with Leon Fresco of Honda Knight. We'll
23:05
Speaker 2: look at the second immigration decision today, where the Supreme
23:09
Speaker 2: Court gave the Trump administration a second win once again
23:13
Speaker 2: in a six to three vote. I'm June Grosso and
23:16
Speaker 2: you're listening to Bloomberg. In a second immigration win for
23:22
Speaker 2: the Trump administration today, the Supreme Court ruled that immigration
23:26
Speaker 2: agents can stop asylum seekers before they reached the US border.
23:32
Speaker 2: It was another six to three decision down ideological lines.
23:35
Speaker 2: I've been talking to immigration law expert Leon Fresco of
23:39
Speaker 2: Honden Knight so Lean. Does this decision mean that migrants
23:43
Speaker 2: have to actually be standing on US soil in order
23:47
Speaker 2: to apply for asylum?
23:49
Speaker 1: Yes, the answers yes to that question. And here's what happened.
23:52
Speaker 1: So this is not really a relevant issue so much
23:55
Speaker 1: in Trump term number two. But what happened was in
23:59
Speaker 1: Trump term number one, there hadn't yet been this epiphany
24:03
Speaker 1: which By the way, this epiphany is going to be
24:05
Speaker 1: something that will be decided by the Supreme Court next term,
24:08
Speaker 1: so it hasn't fully been decided yet. But there was
24:11
Speaker 1: this epiphany at the end of the Biden administration, and
24:14
Speaker 1: it's happened during the entirety of this Trump two term
24:17
Speaker 1: that you could just block people from applying for asylum
24:21
Speaker 1: at all, it doesn't matter where they come from. And
24:24
Speaker 1: so since the end of the Biden administration and this
24:26
Speaker 1: entire Trump administration, everybody who's come across the border asking
24:30
Speaker 1: for asylum has been blocked. So that's why this isn't
24:33
Speaker 1: exactly relevant right now. But if that ends up being
24:37
Speaker 1: overturned and the Supreme Court ends up saying next year,
24:40
Speaker 1: you can't do that, you can't just close down America
24:43
Speaker 1: for people coming to apply asylum, then they will ask
24:47
Speaker 1: the following question, which is, Okay, well, how are you
24:49
Speaker 1: supposed to apply for asylum? And that's where we used
24:53
Speaker 1: to have. You know, you could you could hear quotes
24:55
Speaker 1: from Tom Homan and from from Christy Nome and from
24:58
Speaker 1: others saying no, you got to go to port of
25:00
Speaker 1: entry and that's where you lawfully apply for asylum. So
25:03
Speaker 1: there's fifty of these across the border between Mexico and
25:07
Speaker 1: the United States. There's one in San Diego, there's one
25:10
Speaker 1: in Nogalis, there's one in Brownsville, in McAllen El Paso.
25:14
Speaker 1: And so what happens is you cross one of these bridges,
25:18
Speaker 1: and if you can make it to the US side
25:21
Speaker 1: of the bridge, there's literally aligned. If you can get
25:24
Speaker 1: your foot across the line, there's no dispute that at
25:27
Speaker 1: that point, if you see some US Customs and Border
25:30
Speaker 1: Protection official, you can immediately declare that you want to
25:34
Speaker 1: apply for asylum, and the government has to begin the
25:36
Speaker 1: process of accepting your asylum claim in terms of adjudicating it,
25:41
Speaker 1: not saying it's approved, but starting the process of trying
25:45
Speaker 1: to determine is this an asylum clane that has merit
25:48
Speaker 1: or isn't this an asylum claim that has merit. Now,
25:51
Speaker 1: the problem is during the first Trump administration, so many
25:54
Speaker 1: people were coming across the border. They said, no, no,
25:57
Speaker 1: no, no no, we can't just close the port of entries
26:01
Speaker 1: down to all the other visitors and traffic. That's normal
26:04
Speaker 1: and legitimate, because we're trying to do all these asylum
26:08
Speaker 1: claims at the port of entries. So they created this
26:10
Speaker 1: thing called metering where they said, we're only going to
26:13
Speaker 1: allow fifty people a day to cross the border and
26:17
Speaker 1: ask for asylum. We're not going to let everybody through.
26:21
Speaker 1: And so if you're stuck on the Mexican side, too
26:23
Speaker 1: bad for you. You don't get to do this. So
26:25
Speaker 1: what happened is there was an organization called alot Lavo,
26:28
Speaker 1: which means on the other side. So it's quite you know,
26:32
Speaker 1: literally this is one of the rare good uses of
26:34
Speaker 1: the word literally literally relevant here because it's people standing
26:38
Speaker 1: on the other side on the Mexican border. So who
26:41
Speaker 1: sued and said, what about the people standing on the
26:43
Speaker 1: Mexican border who the US government knows about but is
26:47
Speaker 1: physically preventing them from letting their bodies into America. Haven't
26:51
Speaker 1: they done enough to be able to apply for asylum?
26:55
Speaker 1: And so what the statute says is you have to
26:58
Speaker 1: quote unquote awry in the United States in order to
27:02
Speaker 1: be able to apply for asylum. And so that question
27:06
Speaker 1: was decided by the Supreme Court. What does arrive in
27:09
Speaker 1: the United States mean? Does it mean if you attend
27:13
Speaker 1: to and you fail to set foot because a government
27:16
Speaker 1: person stops you you've arrived, or does it mean you
27:19
Speaker 1: actually have to have one of your feet across the
27:22
Speaker 1: yellow line in order to actually apply for asylum. And here,
27:27
Speaker 1: as you said, the six to three decision again with
27:30
Speaker 1: all the Republican appointed justices on one side all the
27:33
Speaker 1: democratically appointed justices on the other side, says that arise
27:37
Speaker 1: in the United States means you got to have one
27:39
Speaker 1: of your feet across the yellow line. So you've got
27:42
Speaker 1: to arrive in the geographic location when you enter it,
27:46
Speaker 1: and that means to reach the destination. So they said,
27:50
Speaker 1: like a running back doesn't arrive in the end zone
27:52
Speaker 1: when they get to the one yard line in a
27:54
Speaker 1: football game. They have to get in the end zone.
27:57
Speaker 1: And it's the same concept here.
28:00
Speaker 2: So now to the dissent. The justices generally read out
28:04
Speaker 2: summaries of their decisions from the bench, and it's very
28:08
Speaker 2: rare for a dissenting justice to read out his or
28:12
Speaker 2: her descent. It means that they're strongly opposed to the
28:16
Speaker 2: majority's ruling. And today Justice Soda Mayor read her descent
28:21
Speaker 2: parts of her descent saying the majority had gotten the
28:24
Speaker 2: law egregiously wrong and it would lead to more asylum
28:28
Speaker 2: seekers dying while attempting to traverse the desert or drowning
28:32
Speaker 2: in the Rio Grande and really odd. Justice Alito, who
28:37
Speaker 2: wrote the majority, apparently wasn't aware that she was going
28:40
Speaker 2: to read it out loud, and he said, there's much
28:43
Speaker 2: I would have added to my bench statement had I
28:45
Speaker 2: known there would be a dissenting bench statement. I mean,
28:49
Speaker 2: possibly showing that the justices are not communicating well at
28:53
Speaker 2: this stage of the term.
28:56
Speaker 1: I think that it's one of these things where there's
28:58
Speaker 1: very few ways to sort of let off steam, and
29:02
Speaker 1: I think Justice sort of may or may have decided
29:04
Speaker 1: that she just needed to let off steam here and
29:07
Speaker 1: didn't coordinate this in the way where Justice Alito would
29:10
Speaker 1: have known about it. But I also think Justice Alito
29:12
Speaker 1: probably you know, when you have to hear allegations that
29:16
Speaker 1: you've made a decision that's going to lead to people
29:19
Speaker 1: dying who are in horrific circumstances. Obviously, it's very hard,
29:24
Speaker 1: I think if you're any sort of person with emotions,
29:27
Speaker 1: and so that's why he expressed his frustration there. And look,
29:32
Speaker 1: at the end of the day, there's a decent argument
29:34
Speaker 1: on the side of the three justices who dissented which
29:40
Speaker 1: is that they said there is some surplusage in the statute,
29:45
Speaker 1: where the statute uses two different phrases not just arrive
29:49
Speaker 1: in the United States, but also physically present in the
29:52
Speaker 1: United States. So they say, physically present in the United
29:56
Speaker 1: States covers the people whose foot got across the line.
30:00
Speaker 1: So arrive in the United States must mean something different,
30:03
Speaker 1: because why would they use both phrases that either person
30:07
Speaker 1: could apply for asylum a person who arrived in the
30:10
Speaker 1: United States and also a person who was physically present
30:13
Speaker 1: in the United States. So they say, why why would
30:16
Speaker 1: the statute have both of those phrases. It must mean
30:20
Speaker 1: someone like this who's caught three inches from the border. Now,
30:24
Speaker 1: the question, obviously, if you take this argument, is how
30:27
Speaker 1: far away, Like can they cut you in Mexico City?
30:30
Speaker 1: Can you still apply for asylum if they cut you
30:33
Speaker 1: in Bolivia? You know, how far does it mean to be,
30:37
Speaker 1: you know, arriving in the United States? What does that
30:40
Speaker 1: really mean? That's a tough question, and I think that's
30:43
Speaker 1: the sort of weakness of the descent. But nevertheless, they
30:47
Speaker 1: do have that argument about the surplusage, and then they
30:50
Speaker 1: have the common sense policy argument. The look, if you
30:53
Speaker 1: can't go anywhere, So you can't go through the border
30:56
Speaker 1: because now you're shut down. They say, don't go through
30:58
Speaker 1: the border. That's illegal. We don't want people doing that.
31:01
Speaker 1: Fair Enough, nobody who's within the law enforcement community, which
31:04
Speaker 1: includes the Supreme Court justices because they're the ultimate law enforcement,
31:08
Speaker 1: should sanction a regime where you can ask for asylum
31:12
Speaker 1: to go through the border without telling anyone. But then
31:15
Speaker 1: if you can't go through the board of entry, if
31:17
Speaker 1: you can't do that either, what are you supposed to do?
31:20
Speaker 1: And so that's what justice sort of mayor is saying, is, well,
31:22
Speaker 1: you're only alternative. Then if you are really someone seeking asylum,
31:26
Speaker 1: that you're going to die is to sneak in the
31:29
Speaker 1: country and try to not get detected by doing dangerous
31:33
Speaker 1: things like using a tunnel or going in some sort
31:35
Speaker 1: of large truck that has no air conditioning with fifty
31:39
Speaker 1: people in it. And we see those all the time,
31:41
Speaker 1: people dying in those trucks. And so that's the point
31:45
Speaker 1: Cheese making. And it really is an argument that is
31:48
Speaker 1: tough on both sides. But for now, the law is
31:51
Speaker 1: six to three that a administration can say you didn't
31:57
Speaker 1: make it across the yellow line, so you don't get
31:59
Speaker 1: to apply for asylum.
32:00
Speaker 2: The Trump administration is not using this now, but they're
32:04
Speaker 2: stopping asylum in other ways.
32:06
Speaker 1: Right. What they've done is they've used the authority from
32:09
Speaker 1: the travel ban authority, which is INA two twelve F,
32:12
Speaker 1: which is the famous thing where it started first as
32:15
Speaker 1: a ban in twenty seventeen from countries that you know,
32:19
Speaker 1: had populations that had either sort of large terrorist populations
32:24
Speaker 1: or whatever. That was the original ban, and it's been
32:27
Speaker 1: extended in various circumstances COVID, and now it's extended to
32:31
Speaker 1: countries that have high poverty rates, where people collect welfare
32:35
Speaker 1: in the US, et cetera. So Trump created another band,
32:38
Speaker 1: and the ban was I'm banning people who are going
32:42
Speaker 1: to enter the United States in between the ports of entry,
32:46
Speaker 1: meaning you're sneaking across. He says, I'm banning you. Well,
32:49
Speaker 1: that doesn't finish it, because once you've entered, you're the
32:52
Speaker 1: ban on entry doesn't work. So then the next thing
32:55
Speaker 1: he did is he did a regulation. Because asylum is
32:59
Speaker 1: what's called discretionary relief, you don't have to give asylum,
33:03
Speaker 1: So so he did a regulation which said if you
33:08
Speaker 1: are a banned person, then that's one of the reasons
33:11
Speaker 1: in the discretion that you can't get asylum, and so
33:14
Speaker 1: that's what's going to be adjudicated next year at the
33:17
Speaker 1: Supreme Court. Is is that true? Can you do it
33:21
Speaker 1: that way, which is add that as a discretionary thing,
33:25
Speaker 1: or does the statute which literally says anyone physically present
33:29
Speaker 1: in the US can apply for asylum, does it mean
33:33
Speaker 1: once you get across the yellow line, you get across
33:36
Speaker 1: and you can and there's no ban that applies. But
33:40
Speaker 1: at least in twenty twenty six and twenty twenty five
33:44
Speaker 1: and a late part of twenty twenty four because the
33:46
Speaker 1: Biden administration was doing this. Also, to be fair, there's
33:50
Speaker 1: been two years of a complete ban on asylum for
33:54
Speaker 1: people who've been coming through sneaking or trying to sneak
33:57
Speaker 1: across the border, not presenting themselves at the entry. But
34:01
Speaker 1: the point is if that goes away, then you're gonna
34:06
Speaker 1: see the Trump administration try to steer people back toward
34:11
Speaker 1: the ports of entry if you can't ban people anymore,
34:14
Speaker 1: and they're gonna want to use this metering as a
34:17
Speaker 1: way to do it. So there's not thousands of people
34:20
Speaker 1: at the ports every day disrupting the activities at the
34:24
Speaker 1: ports of entry.
34:25
Speaker 2: One big immigration case left on birthright citizenship. Thanks so much, Leon.
34:31
Speaker 2: That's Leon Fresco of Hollanden Knight. And that's it for
34:34
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
34:36
Speaker 2: always get the latest legal news on our Bloomberg Law Podcast.
34:40
Speaker 2: You can find them on Apple Podcasts, Spotify, and at
34:43
Speaker 2: www dot bloomberg dot com slash podcast Slash Law, and
34:48
Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
34:51
Speaker 2: at ten pm Wall Street Time. I'm Junie Grosso and
34:55
Speaker 2: you're listening to Bloomberg