Latest / Bloomberg Law / Arizona Election Rules & J. Lo Files for Divorce

Transcript

Arizona Election Rules & J. Lo Files for Divorce · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: The Supreme Court has handed Arizona Republicans a partial victory
0:15
Speaker 2: in a five to four decision. The Court is allowing
0:17
Speaker 2: Arizona to require proof of citizenship to register to vote
0:22
Speaker 2: using the form provided by the state for state elections. However,
0:26
Speaker 2: the Court refused to allow Arizona to require voters to
0:29
Speaker 2: provide proof of citizenship when they register using a standard
0:34
Speaker 2: federal form to vote for president or by mail. Four justices,
0:38
Speaker 2: Liberals Sonya Sotomayor, Elena Kagan, and Katanji Brown Jackson, and
0:43
Speaker 2: conservative Amy Coney Barrett, would have rejected all the rnc's requests.
0:48
Speaker 2: Joining me is Rebecca Green, a professor at William and
0:51
Speaker 2: Mary Law School and co director of the Election Law Program.
0:55
Speaker 2: Rebecca Arizona handles federal and state elections in an unusual
0:59
Speaker 2: way way tell us about it.
1:01
Speaker 3: So the way that elections are run in the United
1:05
Speaker 3: States is largely a matter of state law. So state
1:08
Speaker 3: legislatures make most of the laws that govern elections in
1:10
Speaker 3: the United States, but the federal government, through some provisions
1:15
Speaker 3: in the Constitution, is given the authority to make laws
1:21
Speaker 3: that affect elections. So then they've done that many, many times.
1:24
Speaker 3: So you can think of the Help America Vote Act
1:26
Speaker 3: after Bush versus Gore, you know, you can think about
1:29
Speaker 3: the National Voter Registration Act, which is often called the
1:33
Speaker 3: Voter Voter Act, which Congress passed in nineteen ninety three.
1:36
Speaker 3: And the authority that Congress derives to pass federal legislation
1:40
Speaker 3: that affects how states administer elections has long been rooted
1:44
Speaker 3: in the Constitution, and those laws are examples of Congress
1:47
Speaker 3: using those powers. So in twenty twenty two in Arizona,
1:52
Speaker 3: there's been a lot of debate in Arizona, to put
1:54
Speaker 3: it lightly, over proof of citizenship requirements. There was a
1:58
Speaker 3: twenty thirteen case where the challenge was essentially whether or
2:03
Speaker 3: not Arizona had to use the federal form for registering voters.
2:06
Speaker 3: The federal form did not have a proof of citizenship requirement.
2:10
Speaker 3: In other words, you didn't have to show what proof
2:12
Speaker 3: with the document that you were a US citizen, but
2:14
Speaker 3: you did have to check a box, you know, certifying
2:18
Speaker 3: that you were a citizen under penalty of perjury and
2:21
Speaker 3: criminal finction. And so the US Supreme Court held that
2:26
Speaker 3: that form that the national law, the federal law requiring
2:30
Speaker 3: use of that federal form or acceptance of that federal
2:33
Speaker 3: form preempted state law. In other words, that Congress had
2:36
Speaker 3: sort of more authority than a state over that particular
2:40
Speaker 3: question since Congress had spoken in federal law trump's state law.
2:44
Speaker 3: So what's happening here in Arizona more recently is this
2:48
Speaker 3: claim that there's actually a difference between presidential elections and
2:53
Speaker 3: other federal elections like elections for Congress. And the theory
2:58
Speaker 3: is that the US Constitution, through articles to authority, is
3:05
Speaker 3: different than time placer manner authority that Congress might have
3:09
Speaker 3: under Article one, Section four, so that there's different provisions
3:13
Speaker 3: that authorize Congress to write laws that affect elections. So
3:17
Speaker 3: the argument anyway is that when it comes to selecting
3:20
Speaker 3: presidential electors, state legislators have exclusive authority and Congress through
3:26
Speaker 3: the MVRA through the Motor Voter Law doesn't have authority.
3:29
Speaker 3: So basically, what Arizona's trying to do is to bifurcate
3:33
Speaker 3: how elections are run, to make it sort of a
3:36
Speaker 3: different set of rules for presidential elections versus other kinds
3:39
Speaker 3: of federal elections and state elections. It's very confusing, but
3:43
Speaker 3: I hope that that unpacked it at least a little.
3:45
Speaker 2: Yeah. So, now, from what I understand, an Arizona federal
3:48
Speaker 2: judge blocked the state's proof of citizenship law, and then
3:52
Speaker 2: a ninth Circuit panel reinstated it, but a different appeals
3:56
Speaker 2: panel blocked it in a two to one decision. What
4:00
Speaker 2: has the response been to Arizona's argument by the federal government.
4:05
Speaker 3: The briefs in the case, you know, go through all
4:09
Speaker 3: of the kind of settled practice in terms of recognizing
4:13
Speaker 3: the congressional authority to legislate in presidential elections, and they
4:18
Speaker 3: talk about different parts of the Constitution that authorize Congress
4:21
Speaker 3: to do so. So there's just been sort of a
4:23
Speaker 3: pushback both with respect to how we all understand the
4:26
Speaker 3: process to work, and also what authority Congress has in
4:30
Speaker 3: this area in the different areas of the Constitution like
4:33
Speaker 3: the causes I mentioned, and also authority under the fourteenth
4:36
Speaker 3: and fifteenth Amendments, the Necessary and Proper Clause. There's all
4:39
Speaker 3: kinds of pushback to this idea that state legislators have
4:43
Speaker 3: exclusive authority to legislate when it comes to presidential elections.
4:47
Speaker 2: Is this a novel argument in Arizona or have other
4:50
Speaker 2: states tried this?
4:52
Speaker 3: I don't believe any other state has tried this, but
4:55
Speaker 3: I know that many other states are sort of on
4:56
Speaker 3: board with this argument, and you know, it's something that
5:00
Speaker 3: Arizona has tried in the past, and other states like Kansas,
5:03
Speaker 3: for example, have, especially with this proof of citizenship question,
5:07
Speaker 3: you know, tried to kind of end run around the
5:10
Speaker 3: federal law by having a different system for the state
5:13
Speaker 3: elections and federal elections in terms of what's required to
5:16
Speaker 3: register to vote. So there's been pushback from states. I
5:19
Speaker 3: wouldn't say a lot, but there's been some states that
5:21
Speaker 3: have pushed back against this idea that federal law controls
5:25
Speaker 3: and set up different systems so that at least for
5:27
Speaker 3: state elections that would be a different process. So this
5:30
Speaker 3: has been a live question for several years now.
5:33
Speaker 2: So with this decision, did the Supreme Court just sort
5:35
Speaker 2: of split the baby?
5:37
Speaker 3: So the court did sort of split the baby. I
5:39
Speaker 3: guess that's some way of putting it. But most importantly,
5:42
Speaker 3: the court preserved use of the federal form for presidential
5:46
Speaker 3: elections for Arizona voters. So new voters can still use
5:50
Speaker 3: the federal form to vote in federal elections and the
5:54
Speaker 3: federal form. The distinction here again is that the federal
5:58
Speaker 3: form only requires that voters essentially check a box affirming
6:02
Speaker 3: under penalty of perjury, which you know has criminal sanctions
6:06
Speaker 3: attached to it, that they are in fact US citizens,
6:09
Speaker 3: and then voters who use the state form the court held,
6:13
Speaker 3: can be required to show proof of citizenship to vote
6:16
Speaker 3: in state elections. There had been a bifurcated system of
6:19
Speaker 3: registration already in Arizona, and this opinion doesn't just disrupt that.
6:23
Speaker 2: What about the per sale principle that you don't change
6:26
Speaker 2: anything so close to an election.
6:28
Speaker 3: Yeah, that's why the ruling was surprising in that sense.
6:32
Speaker 3: You know, you'd think that the court would want to
6:34
Speaker 3: keep in place what the lower court did because we're
6:37
Speaker 3: so close to an election. But it did disrupt it slightly,
6:40
Speaker 3: although it kept part of this day alive. So it
6:43
Speaker 3: will create confusion. In fact, if you read some of
6:45
Speaker 3: the coverage of the decision, you know, there does seem
6:49
Speaker 3: to be quite a bit of confusion about what exactly
6:51
Speaker 3: it means. It's very hard to parse courses in unreasoned order,
6:54
Speaker 3: so we don't know what they're thinking, and so you know,
6:57
Speaker 3: if the Court is concerned about confusion, you know, in
6:59
Speaker 3: the lead up to an election, that certainly doesn't seem
7:01
Speaker 3: to help.
7:01
Speaker 2: It wasn't Justice Kavanaugh the one who talked about the
7:04
Speaker 2: per sale prints but about you know, not changing things,
7:08
Speaker 2: yes for an election.
7:10
Speaker 3: Yes he was, and he was not one of the
7:12
Speaker 3: justices who's signed on to the order issue. So we
7:15
Speaker 3: don't you know, and that this is what happens on
7:16
Speaker 3: the shadow docket is we don't know even justices who
7:19
Speaker 3: sort of stand behind, you know, the outcome that we
7:21
Speaker 3: don't know why. So it's all of a mystery at
7:24
Speaker 3: this point.
7:25
Speaker 2: So as far as like on the ground in Arizona,
7:28
Speaker 2: does anything change.
7:29
Speaker 3: Well it does mean something changes. So it means that
7:32
Speaker 3: people who want a register to vote in state elections
7:36
Speaker 3: using the state form must provide proof of citizenship in
7:40
Speaker 3: order to do so. And there had been a stay
7:43
Speaker 3: on that previously, and now that stay is lifted, meaning
7:46
Speaker 3: that anyone who uses a state form to register to
7:48
Speaker 3: vote must show proof of citizenship in order to be
7:51
Speaker 3: put on the rules. You know, I guess people in
7:53
Speaker 3: Arizona are somewhat used to a bifurcated system, but you
7:56
Speaker 3: can imagine people being confused about what the court order
7:59
Speaker 3: means and whether or not they're still registered. And I
8:02
Speaker 3: think there's going to be a lot of people in
8:04
Speaker 3: Arizona sort of waking up and trying to figure out
8:07
Speaker 3: to make sure that they are in fact registered and
8:10
Speaker 3: that they're okay. People who registered using the federal form.
8:13
Speaker 3: You know, there's been no change, so they should be fine.
8:15
Speaker 3: But again, they may be confused. And that's the risk,
8:17
Speaker 3: you know, that you run into when you're making changes
8:20
Speaker 3: or mouling this close to an election.
8:22
Speaker 2: Do you think that this opens the floodgates to other
8:26
Speaker 2: Republican states or groups who want to challenge election roles
8:30
Speaker 2: so close to the election, You know.
8:33
Speaker 3: I really don't think so. You know, I think that
8:35
Speaker 3: we are kind of in the last phases of this
8:38
Speaker 3: election season, and I don't expect that courts, particularly federal courts,
8:42
Speaker 3: are going to want to rock the vote. Now that
8:44
Speaker 3: people have started registering, now that you know, ballots will
8:47
Speaker 3: be printed soon, I think we're getting into the zone
8:50
Speaker 3: where I think courts are going to be extremely worried
8:53
Speaker 3: about causing confusion among voters and election officials.
8:56
Speaker 2: Republicans are always pushing the proof of citizenship requirement. Why
9:01
Speaker 2: is that?
9:02
Speaker 3: Yeah, so I think it's in response to the kind
9:06
Speaker 3: of concern that non citizens are voting in large numbers,
9:10
Speaker 3: which of course has not been documented to be a
9:13
Speaker 3: widespread problem. There's no evidence of that happening. And you know,
9:16
Speaker 3: it's also I think people can understand that, you know,
9:19
Speaker 3: if you're an undocumented immigrant, there's a lot on the
9:22
Speaker 3: line if you go and, you know, fraudulently register to
9:26
Speaker 3: vote in terms of your ability to ultimately gain citizenship.
9:30
Speaker 3: So it would be a huge risk, and the idea
9:32
Speaker 3: that a huge number of people are doing that is
9:34
Speaker 3: pretty hard to square with the reality that you're really
9:37
Speaker 3: putting yourself in the crosshairs in terms of getting you know,
9:40
Speaker 3: deported or in trouble criminally for registering to vote if
9:43
Speaker 3: you're not a citizen. So it's not a problem that's
9:46
Speaker 3: been documented, and you can understand why it wouldn't be
9:49
Speaker 3: happening on a large scale because people would really be
9:51
Speaker 3: jeopardizing their status they did so, not to mention facing
9:54
Speaker 3: criminal sanctions. So that said, you know, I think the
9:57
Speaker 3: immigration issue is a really hot political issue, and you know,
10:01
Speaker 3: I think that people who are circulating these theories are
10:04
Speaker 3: trying to gain some traction politically by doing so.
10:07
Speaker 2: Usually before an election, there is a lot of litigation
10:10
Speaker 2: over election rules, et cetera. Has that happened this.
10:13
Speaker 3: Cycle, Yes, of course, it absolutely has. And just you know,
10:17
Speaker 3: I think people might be concerned that there'd be a
10:20
Speaker 3: lot of challenges to state rules, you know, both from
10:22
Speaker 3: Democrats and Republicans, but I think it's important to remember
10:25
Speaker 3: that that's a feature of our system, not a bug.
10:27
Speaker 3: In other words, anybody can challenge the way our elections
10:30
Speaker 3: are run and the court will hear it, and that's
10:32
Speaker 3: kind of how the system works. And the idea is
10:34
Speaker 3: that that gets kind of worked out far in advance
10:37
Speaker 3: of election, so that the rules are in place and
10:39
Speaker 3: any concerns that somebody would have about the rules would,
10:42
Speaker 3: you know, have open opportunity for people to challenge and
10:45
Speaker 3: the court to hear those concerns well in advance of
10:47
Speaker 3: an election, so that by the time you get to
10:50
Speaker 3: the election, you know the rules are in place and
10:52
Speaker 3: people feel confident that they're constitutional and otherwise administrable and correct.
10:57
Speaker 2: Thanks so much for being on the show, Rebecca. That's
10:59
Speaker 2: Professor Rebecca Green of William and Mary Law School coming
11:03
Speaker 2: up next on the Bloomberg Law Show, Republican states are
11:06
Speaker 2: suing the Biden administration over its new program giving a
11:10
Speaker 2: path to citizenship to immigrants without legal status married to
11:15
Speaker 2: US citizens. I'm June Grosso when you're listening to Bloomberg.
11:20
Speaker 2: Texas and fifteen other Republican led states are suing to
11:24
Speaker 2: end a federal program that could potentially give nearly half
11:28
Speaker 2: a million immigrants without legal status who are married to
11:32
Speaker 2: US citizens a pathway to citizenship. President Joe Biden had
11:36
Speaker 2: announced the program in June.
11:38
Speaker 4: For those wives, their husbands, and their children who have
11:41
Speaker 4: lived in America for a decade or more but are undocumented,
11:44
Speaker 4: This act will allow them to file a paperwork for
11:47
Speaker 4: legal status in the United States. A lot of them
11:50
Speaker 4: work while they remain with their families in the United States.
11:53
Speaker 2: The states suing to stop the program say that the
11:56
Speaker 2: administration bypassed Congress to create a pathway to sity lisenship
12:00
Speaker 2: for quote blatant political purposes. Joining me is immigration law
12:05
Speaker 2: expertly On Fresco, a partner at Holland and Knight Leo.
12:08
Speaker 2: We've discussed this before, but remind us what this program
12:12
Speaker 2: is about.
12:13
Speaker 1: It's called the implementation of Keeping Families Together Program, or
12:18
Speaker 1: it's also known as the PIP, the Parole and Place program.
12:22
Speaker 1: It's a program that the Biden administration put in at
12:25
Speaker 1: the same time that it put in its executive order
12:28
Speaker 1: closing the border, to balance that out by saying that
12:32
Speaker 1: in addition to that provision, there would be a provision
12:35
Speaker 1: that would be more compassionate. I would say that people
12:39
Speaker 1: who are married to United States citizens but who cannot
12:43
Speaker 1: obtain legal status because they crossed the border of the
12:48
Speaker 1: United States unlawfully, those individuals will now be able to
12:52
Speaker 1: get legal status because the thing that was banning them,
12:56
Speaker 1: which was that their admission was not done legally, will
12:59
Speaker 1: be cured by this parole in Place, which will basically
13:03
Speaker 1: say we will now admit you, but we won't make
13:05
Speaker 1: you actually come to the border and re enter legally.
13:09
Speaker 1: We'll just give you a parole, which is a sort
13:12
Speaker 1: of a permission slip that says, as of this moment,
13:15
Speaker 1: you've entered the United States legally, so now you can
13:18
Speaker 1: go ahead and petition for a green card or lawful
13:22
Speaker 1: permanent residence as it is known because of your mayriage
13:25
Speaker 1: to a US.
13:26
Speaker 2: The visit so Texas and sixteen Republican led states are
13:31
Speaker 2: suing to end the program. What's their main legal attack.
13:36
Speaker 1: Well, they have a lot of different theories about why
13:38
Speaker 1: this is not a legal program, but basically it comes
13:43
Speaker 1: down to a couple of main ones, which is that
13:46
Speaker 1: at the end of the day, they say that the
13:49
Speaker 1: parole program that the Biden administration has put in is
13:52
Speaker 1: suffering from two main legal defects. The first is that
13:57
Speaker 1: the very concept of parole in place, So it's been
14:00
Speaker 1: used in the past, and it was used mostly for
14:03
Speaker 1: the undocumented spousands of people in the military, so nobody
14:07
Speaker 1: cared because people didn't like the idea that a person
14:10
Speaker 1: in the military could have their stouse supported. So people
14:14
Speaker 1: generally thought I was fined and then sue at the time.
14:17
Speaker 1: But now they're sort of saying, look, we should revisit
14:20
Speaker 1: this concept of can you actually be given a parole
14:24
Speaker 1: if you're already inside the United States? So that's their
14:27
Speaker 1: first argument is that that concept in and of itself
14:30
Speaker 1: is illegal. Now, what a parole is is it's a
14:33
Speaker 1: permission for someone who's at the border, who's outside of
14:37
Speaker 1: the country, who's trying to enter. It's a permission to
14:40
Speaker 1: allow them to enter but it's not a document that
14:44
Speaker 1: you can get once you're inside the United States. So
14:48
Speaker 1: that's their first argument. Their second argument is that in
14:51
Speaker 1: nineteen ninety six, Congress dramatically limited the parole authority to
14:57
Speaker 1: a case by case basis and a on an urgent
15:00
Speaker 1: humanitarian circumstance. And they're saying that neither of those two
15:05
Speaker 1: things applies here because this isn't a case by case basis.
15:08
Speaker 1: This is a programmatic change where even though the administration
15:13
Speaker 1: is saying, look, there's discretion to deny this on a
15:15
Speaker 1: case by case basis and all decisions shall be made
15:19
Speaker 1: on a case by case basis, they're saying there's sort
15:21
Speaker 1: of this wink wink understanding. If you meet the criteria
15:25
Speaker 1: for the program, you are going to get it. And
15:28
Speaker 1: so they say that violates the case by case requirement
15:32
Speaker 1: because this is not case by case, it's programmatic. And secondly,
15:35
Speaker 1: they're saying that, look, even if this was case by case,
15:38
Speaker 1: you can only grant parole for urgent humanitarian reasons or
15:42
Speaker 1: for a significant public benefit. That's what those two words
15:45
Speaker 1: that are in the statue. One is urgent humanitarian reason,
15:48
Speaker 1: second is significant public benefit. And they're saying that neither
15:52
Speaker 1: actually exists here, because all this is is an end
15:55
Speaker 1: run around what Congress wanted, which was Congress didn't want
15:59
Speaker 1: people who the border without authorization to be able to
16:03
Speaker 1: gain legal status in any way. They wanted them to
16:05
Speaker 1: have to leave and have to redo it from the outside.
16:09
Speaker 1: And so they're saying it can never be an urgent
16:12
Speaker 1: humanitarian reason or a significant public benefit to have a
16:15
Speaker 1: parole program whose goal is to circumvent the Congress's statute.
16:20
Speaker 2: The Republicans who are attacking it say it's essentially a
16:23
Speaker 2: form of amnesty for people who broke the law. I mean,
16:27
Speaker 2: Biden is giving special privileges to people because they happen
16:30
Speaker 2: to be married to US citizens, whereas other people who
16:33
Speaker 2: are here who crossed illegally as well, and who've been
16:36
Speaker 2: here for the same amount of time and who haven't
16:38
Speaker 2: violated the laws, et cetera, et cetera, aren't given this.
16:42
Speaker 2: So it does seem a little bit unfair to me.
16:45
Speaker 1: Well, it is correct to say that, you know, whatever
16:48
Speaker 1: word you want to use, amnesty or some other word,
16:51
Speaker 1: it is correct to say that people who are currently
16:53
Speaker 1: in an unlawful status will if this program survive these
16:57
Speaker 1: court cases be allowed to end, they're not only into
17:01
Speaker 1: just a lawful status, but ultimately to lawful permanent residency,
17:05
Speaker 1: and ultimately, even after that, potentially US citizenship if this
17:10
Speaker 1: program is allowed to continue, so long as they were
17:12
Speaker 1: married to US citizens. And it is true that all
17:15
Speaker 1: of this is sort of being made up on the fly,
17:17
Speaker 1: in the sense that this requirement that you had to
17:20
Speaker 1: have been in the country for ten years, none of
17:22
Speaker 1: this is based on anything. It's just based on the
17:25
Speaker 1: way they wanted to define the program, which is that
17:27
Speaker 1: you have to have been here for ten years and
17:29
Speaker 1: you have to be married to a US citizen. And
17:31
Speaker 1: you're correct, there's other things you could be that could
17:34
Speaker 1: be more compelling or less compelling, but they didn't choose
17:38
Speaker 1: either of those. This is the concept that they chose.
17:41
Speaker 1: And one would say, well, why did they choose this? Well,
17:45
Speaker 1: one is because there's an actual US citizen who sort
17:48
Speaker 1: of has skin in the game here and that there
17:50
Speaker 1: would be harm to that US citizen if they lose
17:53
Speaker 1: their spouse due to deportation. But secondly, there is this
17:57
Speaker 1: concept that was already in place its entirety, but the
18:01
Speaker 1: only difference was the only people who could take advantage
18:03
Speaker 1: of this were spouses of people in the military, So
18:07
Speaker 1: now it will be spouses of all us. It is
18:09
Speaker 1: ins as opposed to just spileses of people as a military.
18:12
Speaker 2: Yeah, and the Republicans also say that, you know, this
18:15
Speaker 2: is close to the election. It's blatant the Biden administration
18:20
Speaker 2: is playing politics here. I mean, has this idea ever
18:23
Speaker 2: come up before?
18:24
Speaker 1: Sure, when the military parole program was announced, this was
18:29
Speaker 1: the fear of a lot of Republicans. They said, one day,
18:32
Speaker 1: somebody's going to try to expand this to all us.
18:34
Speaker 1: It is in spouses, and they will say because we
18:37
Speaker 1: didn't object to it at the time when we did
18:39
Speaker 1: it for the military, that we lost our right to
18:43
Speaker 1: object to this and law and behold, some of those
18:46
Speaker 1: people who did criticize the program at the time have
18:48
Speaker 1: been proven right that that ended up happening, that this
18:51
Speaker 1: program did get expanded. But it is also true that
18:54
Speaker 1: no one filed a lawsuit or objected to the military
18:58
Speaker 1: parole program at the time. I'm other than some of
19:01
Speaker 1: the people who do this professionally for a living, who
19:04
Speaker 1: don't want any programs of this kind of any kind done,
19:07
Speaker 1: They did say this would happen, And so now it
19:10
Speaker 1: has happened. So from the extent of has this been
19:13
Speaker 1: considered the idea was, yes, it was considered from the
19:16
Speaker 1: day that the military program was announced over a decade ago,
19:20
Speaker 1: that that would be the potential outcome of this, as
19:23
Speaker 1: they would try to do all spouses at some point.
19:26
Speaker 1: But was this done as an election item? Well, certainly
19:29
Speaker 1: it was done very close to the election. It was
19:31
Speaker 1: done at the same time that the border was closed
19:34
Speaker 1: to appease people who are criticizing that the border was closed.
19:38
Speaker 1: And so there's not an immunity to those criticisms because
19:42
Speaker 1: one could point to those facts and say this was
19:45
Speaker 1: done for political reasons. In any case, the question is
19:48
Speaker 1: what happens now. And I think the administration is taking
19:52
Speaker 1: these applications, and I think both immigration lawyers and the
19:57
Speaker 1: clients going through this needs to be very careful and
19:59
Speaker 1: needs to decide is this something that I want to
20:02
Speaker 1: do where if this gets enjoined or if the administration changes.
20:07
Speaker 1: And now I've put my name forward and I've exposed
20:10
Speaker 1: myself as someone who's here illegally, and I've given my address,
20:14
Speaker 1: and I've given all my biographical information I could be
20:17
Speaker 1: found immediately, is that something people think is wise to
20:21
Speaker 1: do so. I don't know how many people you're going
20:23
Speaker 1: to see applying for this before the election, as opposed
20:27
Speaker 1: to perhaps the idea being that the US citizens who
20:31
Speaker 1: would benefit from this would vote for this knowing that
20:34
Speaker 1: the election is going to be the difference as to
20:36
Speaker 1: whether this policy or this program actually becomes a program
20:40
Speaker 1: that actually gets implemented in its entirety. And also perhaps
20:44
Speaker 1: the relatives of these US citizens may have some sympathy
20:48
Speaker 1: for the plight of the US citizen, so to that extent,
20:51
Speaker 1: it is potentially a useful political move, but a political
20:55
Speaker 1: move down the list.
20:56
Speaker 2: To estimate that about half a million people could be eligible.
21:00
Speaker 2: Factor that in So what do you think how strong
21:03
Speaker 2: are the Republican States arguments against this program?
21:07
Speaker 1: Well? I think there's a lot of very interesting arguments,
21:10
Speaker 1: and the arguments about the way you read the statute
21:16
Speaker 1: are now going to be viewed along the lines of
21:18
Speaker 1: no deference to the administration any longer as we now know.
21:22
Speaker 1: And so the question is does the statute, when you
21:26
Speaker 1: have a plane reading of it, permit this type of
21:28
Speaker 1: parole in place? And that's ultimately going to come down
21:32
Speaker 1: to one judge in Texas well First, there will be
21:35
Speaker 1: the standing question, and the standing question will be very
21:38
Speaker 1: interesting because the most likely way that the states will
21:41
Speaker 1: lose here is in the standing question, which they've lost
21:45
Speaker 1: recently in other lawsuits, because the argument would be, why
21:49
Speaker 1: would it be a problem to take people who are
21:52
Speaker 1: here unlawfully and make them legal? What harm does the
21:55
Speaker 1: suits of the states, and the state is saying, well,
21:57
Speaker 1: five years from now, we may need to get benefit
22:00
Speaker 1: to these people when they're eligible for benefits. But interestingly,
22:04
Speaker 1: there's a thing in the law called an affidavit of
22:07
Speaker 1: support which says that if you're sponsoring someone for a
22:10
Speaker 1: marriage based screen cards, you actually have to prevent them
22:14
Speaker 1: from getting benefits, meaning you have to pay for whatever
22:17
Speaker 1: it is they need under the law. So it actually
22:20
Speaker 1: will be very interesting to see on standing if the
22:24
Speaker 1: state loses, that's the most likely way the state will lose.
22:28
Speaker 1: But if they can survive the standing issue, then the
22:32
Speaker 1: question is going to be will a judge first in
22:36
Speaker 1: Texas and the Fifth Circuit, then the Supreme Court decides
22:39
Speaker 1: by looking at this statue just the plane language without
22:42
Speaker 1: any difference. Two things, is parole something you can actually
22:46
Speaker 1: do is inside the United States, It'll be hard to
22:49
Speaker 1: make that argument. I don't know a very clear statutory
22:54
Speaker 1: reference that says you can grant parole already inside the
22:57
Speaker 1: United States as opposed to that something that's happen at
23:00
Speaker 1: the border. Now, that problem theoretically can be fixed by
23:03
Speaker 1: making everyone in this program just check in at the
23:06
Speaker 1: border and come back. So that would sort of be
23:09
Speaker 1: a pyrrhic victory for the States if they ended up
23:12
Speaker 1: winning that, but fair enough. But then the second one
23:15
Speaker 1: that I think they more want to win on is
23:18
Speaker 1: that there isn't a significant public benefit or an urgent
23:21
Speaker 1: humanitarian reason for doing this, And I think that's where
23:25
Speaker 1: the rubber is going to meet the road, and that's
23:27
Speaker 1: literally just going to be the opinion of the judges,
23:30
Speaker 1: because if there's no difference, then the judges have to
23:33
Speaker 1: decide is this an urgent humanitarian reason or a significant
23:37
Speaker 1: public benefit or isn't it. And I think that's going
23:40
Speaker 1: to be a very interesting question which will just be
23:43
Speaker 1: in the eye of the beholder.
23:45
Speaker 2: And the beholder will be a Texast judge and then
23:47
Speaker 2: the very conservative Fifth Circuit. This goes to my next question.
23:52
Speaker 2: They're asking for an injunction to stop the applications, etc.
23:56
Speaker 2: While the lawsuit plays out, is it likely that a
23:59
Speaker 2: check this judge will give them an injunction. I'm not
24:02
Speaker 2: sure which judge is in charge of this case.
24:05
Speaker 1: Well, I think the judge that got assigned in the
24:08
Speaker 1: Eastern Districts of Texas may in fact grant the injunction.
24:13
Speaker 1: But the point is going to be, you know, about
24:17
Speaker 1: standing really at the end of the day, because I
24:21
Speaker 1: think these judges are sympathetic in the Eastern Districts of
24:24
Speaker 1: Texas to the arguments that are being made by the
24:27
Speaker 1: State of Texas. But I think the issue is just
24:29
Speaker 1: going to be can they survive this question of standing?
24:33
Speaker 1: Where is the harm that they're going to be able
24:35
Speaker 1: to show here? And if they lose on standing, then no,
24:38
Speaker 1: they won't get the injunction. But I do think if
24:41
Speaker 1: they can get fast to standing, then I think in
24:44
Speaker 1: general that will mean the court is sympathetic toward wanting
24:47
Speaker 1: to end this program and will then enjoying the program.
24:51
Speaker 1: They'll have to go all the way to the Supreme Court,
24:53
Speaker 1: probably because the Fifth Circuit will probably maintain that injunction
24:57
Speaker 1: and they'll have to go to the Supreme Court to
24:59
Speaker 1: try to get a stay. And the question is will
25:01
Speaker 1: they be able to get such a say, I don't know.
25:04
Speaker 1: Sometimes the Supreme Court in these recent cases hasn't allowed
25:07
Speaker 1: to say they've kept the injunction in place. And then
25:10
Speaker 1: only when the case finally works its way up to
25:12
Speaker 1: the Supreme Court do they end up making a decision
25:15
Speaker 1: that supports what divided the administration wanted.
25:17
Speaker 2: To get in this program, they have to pay a
25:19
Speaker 2: five hundred eighty dollars fee, fill out a long questionnaire,
25:23
Speaker 2: an explanation of why they deserve humanitarian parole, and supporting
25:28
Speaker 2: documents about how long they've been in the country. There
25:30
Speaker 2: hasn't been anybody who's been assessed at this point. I mean,
25:33
Speaker 2: does it sound like it's more than just a rubber stamp.
25:37
Speaker 1: Well, I think the question is going to be whether
25:40
Speaker 1: this really is going to be done on a case
25:42
Speaker 1: by case discretionary basis. And I do think some people
25:45
Speaker 1: will be denied, because people are always denied. People were
25:48
Speaker 1: denied for DOCA to the program that was done for
25:50
Speaker 1: undocumented children, the Deferred Action Program, there were children that
25:54
Speaker 1: were denied for DOCA who met the criteria of the program,
25:58
Speaker 1: but we're still denied as a matter of discretion, and
26:01
Speaker 1: usually that might be because someone had an arrest, or
26:04
Speaker 1: they have something problematic in their background or something of
26:08
Speaker 1: that effect. So not everyone is going to get in.
26:11
Speaker 1: But the question is, if it's ninety eight percent ninety
26:14
Speaker 1: nine percent, is that still a programmatic program or is
26:18
Speaker 1: it still a case by case determination. Now the court
26:21
Speaker 1: won't have the benefit of that analysis here, but they
26:25
Speaker 1: may have it from other programs that can be looked
26:28
Speaker 1: at that were also deemed to be case by case applications,
26:32
Speaker 1: such as the Cuban Hation Nicaragua Venezuelan program that was
26:36
Speaker 1: done and that was to parole people from outside the
26:38
Speaker 1: United States, and also DACA. So that's the state of
26:42
Speaker 1: tex state of the judges. Every time they say they're
26:45
Speaker 1: doing these case by case determinations, they're still approving high
26:49
Speaker 1: ninety percentile applications. So are these really case by case
26:53
Speaker 1: determination that will again be in the eye of the
26:56
Speaker 1: beholder of the judge to determine based on their individual
26:59
Speaker 1: of stuff of that definition.
27:02
Speaker 2: Texas has been bussing migrants to New York for some months.
27:08
Speaker 2: Texas has apparently stopped bussing migrants to New York.
27:11
Speaker 1: Ques. Yes, Why what happens is that at the moment,
27:16
Speaker 1: there seems to be a hold in place that's been
27:19
Speaker 1: happening as a result of this Biden administration closing the border.
27:23
Speaker 1: It's been very interesting because you've had the ACLU not
27:26
Speaker 1: actually asked for a preliminary injunction to get rid of
27:30
Speaker 1: that policy. There actually appears to be a datante there
27:34
Speaker 1: where they're taking the slow road and basically letting the
27:38
Speaker 1: Biden administration get through the election. And so the combination
27:42
Speaker 1: of that asylum ban, and the combination of Mexico enforcing
27:47
Speaker 1: its border, and the combination of Panama also enforcing not
27:52
Speaker 1: letting people get from South America into Panama, all of
27:56
Speaker 1: that accumulation has really reduced an number of people appearing
28:01
Speaker 1: at the southern border to ride across illegally. And so
28:04
Speaker 1: because of that, there just aren't enough people for the
28:08
Speaker 1: Abbot administration in Texas. I actually put on buses and
28:12
Speaker 1: sent to other places.
28:14
Speaker 2: Thanks so much. Leon. That's Leon Fresco of Holland and
28:17
Speaker 2: Knight coming up next. Some unusual aspects of the j
28:21
Speaker 2: Lo ben Affleck divorce. This is Bloomberg.
28:26
Speaker 1: You're saying that.
28:29
Speaker 2: The salary it's just a song and no indication of
28:36
Speaker 2: how Jennifer Lopez is feeling after filing for divorce from
28:40
Speaker 2: Ben Affleck, exactly two years after they were married. The
28:45
Speaker 2: couple famously split in two thousand and three, calling off
28:49
Speaker 2: their first engagement. Both went their separate ways, got married,
28:53
Speaker 2: had kids, got divorced, and almost twenty years later found
28:58
Speaker 2: their way back to each other. And now Lopez has
29:01
Speaker 2: filed for divorce. Joining me is celebrity divorce lawyer Christopher Melcher,
29:06
Speaker 2: a partner at Wallser Melcher and Yoda Chris. This is
29:09
Speaker 2: her fourth marriage, his second marriage. I haven't read anything
29:13
Speaker 2: about a prenup. Would you be surprised if there wasn't
29:17
Speaker 2: a prenup.
29:18
Speaker 5: It's highly unlikely that this couple got married without a
29:21
Speaker 5: premarital agreement. They've been married before, They've had other relationships.
29:26
Speaker 5: They're both wealthy with kids of prior relationships that need
29:31
Speaker 5: to be protected or inheritance rights, so it would be
29:35
Speaker 5: improbable in my mind that they got married without a
29:38
Speaker 5: premaral agreement.
29:39
Speaker 2: According to things that I've read Tabloid and others, they
29:43
Speaker 2: pre planned the terms of the split, and he had
29:46
Speaker 2: moved out of the house in something like May, and
29:49
Speaker 2: they put the mansion on the market in June. So
29:52
Speaker 2: she filed pro per without a lawyer. That seems unusual.
29:56
Speaker 2: Is it unusual?
29:57
Speaker 5: It's really unusual. There's no way in my mind that
30:01
Speaker 5: she did this without the assistance of a lawyer. She
30:04
Speaker 5: just chose not to list the name of that lawyer
30:07
Speaker 5: on the paperwork. I think this was probably for image purposes,
30:13
Speaker 5: to make it look like this would not be a fight,
30:16
Speaker 5: that it's going to be just processed as an agreed
30:19
Speaker 5: upon divorce. So I think that's the message she's trying
30:22
Speaker 5: to send with the no lawyer listed on the paperwork.
30:26
Speaker 5: Most of these cases are resolved before they file in court,
30:31
Speaker 5: and that's the smartest way to go because they can
30:33
Speaker 5: maintain their privacy and they can do it quietly agree
30:37
Speaker 5: on all the terms. The only reason why she needed
30:41
Speaker 5: to file for divorce and that instance, is to get
30:44
Speaker 5: their marriage terminated, because the judge has to be the
30:47
Speaker 5: one who ends the marriage, and they can only do
30:50
Speaker 5: that with an active case. So that's probably what we're
30:53
Speaker 5: seeing is a fully documented and agreed upon settlement of
30:57
Speaker 5: all financial issues. It's already signed by them, and now
31:02
Speaker 5: she just needed to file this case to ask the
31:05
Speaker 5: judge to terminate their marital status.
31:08
Speaker 2: She listed the date of separation as April twenty sixth.
31:12
Speaker 2: Why is that significant?
31:14
Speaker 5: In California, we have a partnership model for marriage, So
31:19
Speaker 5: any property that either spouse acquired from the date of
31:22
Speaker 5: marriage to the date of separation is community property and
31:27
Speaker 5: is shared fifteen fifty. So when the spouses stop living
31:33
Speaker 5: together with the intention of ending the marriage, and one
31:36
Speaker 5: spouse is communicated, hey, we're done, then they're legally separated.
31:40
Speaker 5: That terminates or ends this marital partnership. So that's why
31:45
Speaker 5: it's important to know the date of marriage and the
31:47
Speaker 5: data separation to understand what assets or streams of income
31:51
Speaker 5: were acquired or earned during that period.
31:55
Speaker 2: And as far as we know, the mansion in Beverly
31:58
Speaker 2: Hills worth something like sixty million, is the main asset
32:01
Speaker 2: that was acquired after they were married.
32:04
Speaker 5: They did acquire this really expensive property in Beverly Hills
32:07
Speaker 5: during their marriage, so that would be community property unless
32:11
Speaker 5: they had a premarital agreement or other side agreement that
32:15
Speaker 5: made it different, like equally separate or owned in separate
32:19
Speaker 5: proportions to each other. The down payment that was made
32:24
Speaker 5: on the house if it came from like for example,
32:27
Speaker 5: Jennifer's premarital property. Then by lass you would be credited
32:30
Speaker 5: with that and get reimbursed off the top for the
32:33
Speaker 5: down payment, and only the appreciation would be split with
32:37
Speaker 5: then again unless they had some other kind of arrangement.
32:40
Speaker 5: The problem though, is that this house was not owned
32:43
Speaker 5: for very long, and it might have increased in value
32:47
Speaker 5: a bit, but it's very expensive to sell a home.
32:50
Speaker 5: There's not only the real estate commissions, but in Los
32:53
Speaker 5: Angeles we have a mansion tax. So if the house
32:56
Speaker 5: succeeds five million dollars, there's quite an expensive taxes that
33:00
Speaker 5: are levied on that property. So this would likely result
33:05
Speaker 5: in a loss to the couple.
33:07
Speaker 2: So she asked for no spousal support, and she asked
33:10
Speaker 2: that afflic not get any either. I mean with very
33:14
Speaker 2: rich people who go into marriage later, who have children
33:20
Speaker 2: from separate marriages, I mean, is there normally a lot
33:22
Speaker 2: of fighting or controversy in the divorce or is it.
33:26
Speaker 5: Easier, Well, it should be easier to solve these problems
33:31
Speaker 5: between two wealthy couples, but it's all relative. It doesn't
33:35
Speaker 5: matter how much money somebody has, they never want to
33:38
Speaker 5: give it to their former spouse or partner and there's
33:43
Speaker 5: a lot of resentment or resistance to sharing after a
33:47
Speaker 5: marriage relationship is broken up. Now Here, either one of
33:51
Speaker 5: these has no need for support. They're extraordinarily wealthy. There's
33:54
Speaker 5: no need for support from one or the other. So
33:57
Speaker 5: that wasn't going to be really an issue. In other
34:00
Speaker 5: cases in California, when one spouse has all the money
34:04
Speaker 5: and the other is left really without any assets, there's
34:06
Speaker 5: going to be substantial spouse will support to maintain that
34:11
Speaker 5: spouse at the marital standard of living.
34:14
Speaker 2: She requested a new name on their filing. She got
34:18
Speaker 2: some criticism for changing her name when she got married. Nowadays,
34:24
Speaker 2: do most women keep their own name or change their name?
34:27
Speaker 5: Well, certainly things have evolved over time with regard to
34:31
Speaker 5: women taking their husband's surname. But here she has the
34:36
Speaker 5: right to have her maiden name restored, so she has
34:40
Speaker 5: checked that box on her divorce petition, which is common.
34:45
Speaker 5: And so when the wife chooses to take her husband's surname,
34:51
Speaker 5: sometimes they'll maintain that surname married name if they have
34:56
Speaker 5: children together, because it's just whatever reason seems to be
35:01
Speaker 5: more convenient or less confusing for the mom to maintain
35:07
Speaker 5: her married name when they have kids together, but when
35:10
Speaker 5: there's no children, many times we will see a request
35:14
Speaker 5: to restore the maiden name.
35:16
Speaker 2: She filed for the divorce. Is it just how it looks?
35:21
Speaker 2: Is there any advantage for one party to file rather
35:24
Speaker 2: than the other.
35:25
Speaker 5: There's a slight legal advantage to being the first to
35:28
Speaker 5: file because they can maintain the initiative over the case.
35:33
Speaker 5: As the petitioner. They get to go first if there's
35:35
Speaker 5: a trial, but most of these cases are not litigated.
35:39
Speaker 5: They're mostly all settled, so the decision on who the
35:43
Speaker 5: petitioner will be sometimes is left up to a coin flip.
35:47
Speaker 5: If the couple's really getting along and because there can
35:50
Speaker 5: only be one petitioner and then the other is automatically
35:53
Speaker 5: they responded, So sometimes they'll just flip a coin to
35:57
Speaker 5: figure out who's going to be the person to file first.
36:00
Speaker 5: Other times there's a lot of messaging and thought around it,
36:03
Speaker 5: which I would suspect is going on here. Where was
36:07
Speaker 5: important for Jennifer to be the one who took the
36:11
Speaker 5: lead and said I am filing for divorce. I want
36:13
Speaker 5: this divorce. Maybe Ben had said, Hey, if you want
36:17
Speaker 5: a divorce, fine, I'm not going to fight you, but
36:19
Speaker 5: I'm not going to be the one asking for it.
36:22
Speaker 5: So there's a lot of dynamics that are involved with
36:26
Speaker 5: that relationship that will dictate who's going to be the
36:30
Speaker 5: one to file first.
36:31
Speaker 2: And speaking of appearances, she filed on the second anniversary
36:37
Speaker 2: of their Georgia wedding and hours before the Obama spoke
36:42
Speaker 2: at the convention. I take it hours before the Obama
36:46
Speaker 2: spoke because she hoped somehow that this wouldn't be noticed.
36:49
Speaker 2: How could that be? But is there any message or
36:53
Speaker 2: anything about filing on the second anniversary.
36:56
Speaker 1: I got to.
36:56
Speaker 5: Think that there's some reason why she filed the day
37:01
Speaker 5: she did, because there was no urgency to it. So
37:04
Speaker 5: some some spouses need to file immediately to get protection,
37:09
Speaker 5: financial protection or protection against abuse, and that'll drive the
37:13
Speaker 5: filing date. Here, there was no reason for her to
37:15
Speaker 5: file on that date other than to send some kind
37:18
Speaker 5: of message that you know, this was two years, you know,
37:22
Speaker 5: a second anniversary. Or what I think more cynically is
37:27
Speaker 5: that she picked a date that would also involve a
37:31
Speaker 5: lot of media attention to try to detract from it
37:35
Speaker 5: now and that that did bear out true. Although the
37:39
Speaker 5: story got quite a bit of attention on the day
37:42
Speaker 5: that it was filed. There were a lot of reporters
37:45
Speaker 5: who were engaged with the Democratic National Convention, and so
37:51
Speaker 5: that did detract at least some of the initial attention
37:54
Speaker 5: away from the case.
37:56
Speaker 2: And pren ups. Are prenups still for the rich or
38:01
Speaker 2: are they more for people who have blended families? Where
38:05
Speaker 2: do you see the most prenups or is it just
38:07
Speaker 2: across the board.
38:09
Speaker 5: I mean, we see a lot of people asking for
38:11
Speaker 5: prenups that maybe don't need them. Certainly, I think that
38:15
Speaker 5: they're indicated when a spouse or perspective spouse has children
38:20
Speaker 5: from a prior relationship, because there's rights of inheritance that
38:25
Speaker 5: need to be preserved for those children of the prior marriage,
38:29
Speaker 5: let's say, and it's just a really horrible thing to
38:33
Speaker 5: put the child at verse now to this step parent
38:37
Speaker 5: that's coming on seeing And so the way I look
38:41
Speaker 5: at it is that perspective spouse with the kids has
38:45
Speaker 5: prior obligations to those children and also now taking on
38:48
Speaker 5: new obligations to the spouse. So a prenup is a
38:52
Speaker 5: really nice way of balancing those things, and I think
38:55
Speaker 5: is appropriate. The other time is when we have somebody
38:59
Speaker 5: with the extraordinary wealth and complex finances, that need to
39:04
Speaker 5: be protected and also just make it easy to sort
39:08
Speaker 5: out in the event of a breakup. That is fine
39:12
Speaker 5: in my mind to have a premieral agreement, but not
39:14
Speaker 5: a one sided you get nothing and like it deal,
39:18
Speaker 5: which is oftentimes what's proposed. And sure that's most protective,
39:22
Speaker 5: but it's also detrimental, I think to the relationship because
39:27
Speaker 5: it creates a power imbalance and resentment there where one
39:32
Speaker 5: spouse has everything and the other spouse has nothing. And
39:36
Speaker 5: to think that that party, that unmoneyed party, is going
39:39
Speaker 5: to be happy in that situation is just really unrealistic.
39:43
Speaker 2: Thanks so much for joining me, Chris. That celebrity divorce
39:46
Speaker 2: attorney Christopher Melcher, And that's it for this edition of
39:49
Speaker 2: the Bloomberg Law podcast. Remember you can always get the
39:52
Speaker 2: latest legal news by subscribing and listening to the show
39:55
Speaker 2: on Apple Podcasts, Spotify, and at Bloomberg dot com podcast
40:00
Speaker 2: slash Law. I'm June Grosso and this is Bloomberg