Latest / Bloomberg Law / SCOTUS May Hand Trump a Loss on Birthright Citizenship

Transcript

SCOTUS May Hand Trump a Loss on Birthright Citizenship · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: With President Trump, sitting in the first row of the gallery,
0:11
Speaker 2: watching Supreme Court justices from across the ideological spectrum, appeared
0:17
Speaker 2: skeptical that an executive order he issued hours after his
0:21
Speaker 2: inauguration last year could be squared with the Constitution and
0:26
Speaker 2: federal law. The Fourteenth Amendment has long been understood to
0:29
Speaker 2: guarantee citizenship to virtually everyone born on US soil, but
0:35
Speaker 2: Trump's executive order would upend that and restrict birthright citizenship
0:40
Speaker 2: to babies with at least one parent who's a US
0:43
Speaker 2: citizen or a Green Card holder. Several justices called the
0:47
Speaker 2: Trump administration's arguments quirky and obscure, among other things. Here
0:52
Speaker 2: are Justices Elena Kagan and Neil Gorsuch.
0:56
Speaker 3: Where does this principal come from? Allegiance domicile allegiance. I
1:02
Speaker 3: think you point to a Lincoln funeral speech as your
1:06
Speaker 3: primary example of where this principle comes from. It's certainly
1:10
Speaker 3: not what we think of when we think of the
1:12
Speaker 3: word jurisdiction.
1:14
Speaker 4: And the stuff you have about unlawfully present. It's like
1:18
Speaker 4: Roman law sources you're going to.
1:20
Speaker 2: And Chief Justice John Roberts dismissed Solicitor General John sowers
1:25
Speaker 2: contention that the country faces a new world in which
1:29
Speaker 2: so called birth tourism was undercutting the historic understanding.
1:35
Speaker 5: We're in a new world now, is justice, Leader pointed
1:37
Speaker 5: out to where eight billion people are one plane ride
1:39
Speaker 5: away from having a child's a US citizen.
1:42
Speaker 4: Well, it's a new world. It's the same constitution.
1:44
Speaker 2: And justice is Katanji Brown Jackson and Amy Coney. Barrett
1:49
Speaker 2: asked about the practicalities, just how would the executive Order
1:53
Speaker 2: be applied in practice given the determination would depend at
1:58
Speaker 2: least in part on how long irons intended to stay
2:01
Speaker 2: in the United.
2:02
Speaker 6: States, because now you say your rule turns on whether
2:05
Speaker 6: the person intended to stay in the United States. And
2:07
Speaker 6: I think Justice Barrett brought this up. So we're bringing
2:10
Speaker 6: pregnant women in for depositions. What are we doing to
2:13
Speaker 6: figure this out?
2:15
Speaker 7: I can imagine it being messy on some applications. So
2:19
Speaker 7: how what would you do with what the common law
2:21
Speaker 7: called foundlings? You know the thing about this is then
2:24
Speaker 7: you have to adjudicate if you're looking at parents, and
2:27
Speaker 7: if you're looking at parents domicile, then you have to
2:30
Speaker 7: adjudicate both residents and intent to say, what if you
2:32
Speaker 7: don't know who the parents are.
2:34
Speaker 2: Trump's executive order would affect an estimated two hundred and
2:37
Speaker 2: fifty thousand children born to undocumented immigrants and temporary visitors
2:43
Speaker 2: each year. My guest is Leon Fresco, a partner at
2:46
Speaker 2: Honda and Knight. He's the former head of the Office
2:49
Speaker 2: of Civil Immigration Litigation in the Obama administration. Leon explained
2:54
Speaker 2: what Trump's executive order would do.
2:58
Speaker 1: So, the executive order is actually a little bit complicated
3:02
Speaker 1: in the sense that what it does is it says
3:05
Speaker 1: that if you are an adult in the United States
3:09
Speaker 1: and a child is born from you, that child citizenship
3:15
Speaker 1: is going to be based on a very complicated set
3:18
Speaker 1: of tests. But essentially you're going to need one parent
3:22
Speaker 1: who is at least a lawful, permanent resident of the
3:25
Speaker 1: United States at the time of the child's birth. Now,
3:30
Speaker 1: the arguments today don't actually dive with that executive order.
3:36
Speaker 2: The language of the fourteenth Amendment is all persons born
3:40
Speaker 2: or naturalized in the United States and subject to the
3:44
Speaker 2: jurisdiction thereof are citizens of the United States. So the
3:48
Speaker 2: key issue here revolves around the interpretation of those words.
3:53
Speaker 1: The fourteenth Amendment, which was passed obviously as part of
3:57
Speaker 1: the end of the Civil War, basically said that if
4:01
Speaker 1: you were born in the United States, you are a
4:04
Speaker 1: US citizen so long as you are subject to the
4:07
Speaker 1: jurisdiction of the United States. And so there were some
4:12
Speaker 1: initial exceptions that were sort of understood in the common
4:15
Speaker 1: law historically as people who were not subjective to the
4:19
Speaker 1: jurisdiction of the United States, which were children of diplomats,
4:23
Speaker 1: invading armies and theny occupiers. Those were the historical groups
4:30
Speaker 1: of people that were considered not subject to the jurisdiction
4:33
Speaker 1: of the United States. But and this wasn't spoken about
4:36
Speaker 1: it all during the oral argument, But I think it's
4:38
Speaker 1: very important for your listeners to understand the history of this.
4:42
Speaker 1: If you were just some random person in the eighteen
4:45
Speaker 1: sixties who entered the United States and just got here,
4:49
Speaker 1: there was no thing called deportation or admission or inspection.
4:55
Speaker 1: So if you just arrived here from England or Ireland
4:59
Speaker 1: or in the eighteen sixties, if you were here for
5:03
Speaker 1: five years and could get some witnesses to testify to
5:08
Speaker 1: that in a judicial proceeding, you can naturalized to be
5:11
Speaker 1: a comme a US citizen, And at that time there
5:15
Speaker 1: was no debate or dispute that someone who was born
5:19
Speaker 1: here wouldn't even have to do that. They would just
5:22
Speaker 1: be a US citizen unless they were a slave or
5:25
Speaker 1: a child of slaves. So the question is where do
5:28
Speaker 1: we go now in a world where there is this
5:32
Speaker 1: process that you have to be admitted lawfully into the
5:35
Speaker 1: United States if you're not born here in order to enter.
5:38
Speaker 1: Where does that interface with this eighteen sixties amendment which
5:44
Speaker 1: says that you're only a citizen of you're subject to
5:47
Speaker 1: the jurisdiction of the United States. And that was the
5:49
Speaker 1: debate that the Court was having today.
5:52
Speaker 2: The Solicitor General faced a barrage of skeptical questions. What
5:57
Speaker 2: was his main argument?
5:58
Speaker 1: So his main argument is not necessarily that quote unquote
6:03
Speaker 1: an illegal immigrant or an undocumented person who has a
6:08
Speaker 1: child can't be a US citizen. That's sort of the
6:10
Speaker 1: policy argument. The government's position was that subject to the
6:14
Speaker 1: jurisdiction of the United States means that that person has
6:19
Speaker 1: to have a domicile in the United States in order
6:24
Speaker 1: for them to be able to pass citizenship onto their
6:28
Speaker 1: children when they're born here. And the way they define
6:32
Speaker 1: domicile isn't just that you have a house here or
6:34
Speaker 1: a physical presence, but they say you have to have
6:37
Speaker 1: the legal right to be able to reside here indefinitely,
6:41
Speaker 1: meaning there can't be an expiration date on your status,
6:46
Speaker 1: the legal capacity to form a permanent allegiance to the
6:49
Speaker 1: United States, and that you've submitted to that full sovereign authority.
6:54
Speaker 1: So they add all of these definitions onto the word
6:59
Speaker 1: subject to the jurisdiction of the United States, and they
7:02
Speaker 1: say that that's what domicile means. Because there was a
7:07
Speaker 1: case called Wangar Kim from eighteen ninety eight which held
7:13
Speaker 1: that a child born in the United States to non
7:16
Speaker 1: citizen parents was a citizen at birth. But in that
7:19
Speaker 1: case they mentioned domicile twenty times. And it's unclear why
7:25
Speaker 1: that case mentioned domicile twenty times, but nevertheless it does.
7:30
Speaker 1: And the court was debating why it said that. But
7:33
Speaker 1: in the end the government says, because it mentioned that
7:37
Speaker 1: word domicile so many times, it must mean something. And
7:40
Speaker 1: so the government's position is that if the wang Kim
7:45
Speaker 1: Supreme Court case said you have to be domiciled in
7:49
Speaker 1: the United States in order to be given US citizenship,
7:55
Speaker 1: that that must mean something, and so that's their argument.
7:58
Speaker 1: And certainly there were some justices who seemed interested in
8:02
Speaker 1: that argument. They didn't just automatically discount it. Much like
8:06
Speaker 1: every lower court basically shunted aside these arguments. The Supreme
8:10
Speaker 1: Court seemed much more interested in these arguments.
8:14
Speaker 2: Yeah, one of the judges who found the executive order unconstitutional,
8:19
Speaker 2: Seattle judge John Kunauer, called it blatantly unconstitutional and said, quote,
8:25
Speaker 2: it boggles my mind that a lawyer could argue to
8:28
Speaker 2: the contrary. But here we have a few Supreme Court
8:32
Speaker 2: justices seeming to go down that rabbit hole. Justice Alito
8:36
Speaker 2: certainly seemed interested in it. Any other justices well.
8:40
Speaker 1: Justice Alito, Justice Thomas, I think were interested in it.
8:44
Speaker 1: And then I think that Justice Corsic was trying to
8:47
Speaker 1: engage with the argument, as was Justice Kavanaugh. And the
8:52
Speaker 1: question is I think Roberts and Cony Barrett not as much. So,
8:57
Speaker 1: if we were going to get to the latter part
8:59
Speaker 1: of this discussion of a forecasting, I don't know where
9:02
Speaker 1: the fifth vote would be for the Trump administration. But nevertheless,
9:06
Speaker 1: they were all asking questions about why this word domicile
9:10
Speaker 1: was being used in the wang Arkim decision. And from
9:16
Speaker 1: that standpoint, we're trying to get at maybe was there
9:19
Speaker 1: really something here to the government's argument that, yes, you
9:23
Speaker 1: had to be domiciled in the United States in order
9:27
Speaker 1: to be someone who can actually converse it is in
9:29
Speaker 1: chip onto your children.
9:30
Speaker 2: The ACLU's lawyer seemed to have the greatest problem with
9:35
Speaker 2: answering the justices questions about domicile.
9:39
Speaker 1: Right, because what the court was asking her is why
9:43
Speaker 1: was this being used so much? And could it be
9:46
Speaker 1: And this was Justice Alito's question. Could it be that
9:49
Speaker 1: the reason it was being used was because in the
9:52
Speaker 1: historical example that I gave you, while it was true
9:56
Speaker 1: that anybody from Ireland or England, or Norway or Denmark
10:01
Speaker 1: had just arrive in the United States and naturalize and
10:05
Speaker 1: become a US citizen, that wasn't true for Chinese nationals.
10:08
Speaker 1: They were the one group that was subject to exclusion
10:11
Speaker 1: and potentially deportation due to race based restrictions. And so
10:17
Speaker 1: the question was, would the child of a Chinese national
10:22
Speaker 1: who was trying to live here permanently and was owing
10:25
Speaker 1: no allegiance to China, would that child be given US citizenship?
10:30
Speaker 1: And so what Justice Alito's point was in a scenario
10:35
Speaker 1: like that where the person had entered legally and had
10:39
Speaker 1: done everything right, but just couldn't become a citizen because
10:43
Speaker 1: the laws prevented them from proceeding any further, that the
10:47
Speaker 1: holding of wang our kids should be limited to that.
10:49
Speaker 1: It should be limited to a scenario like that where
10:52
Speaker 1: you entered legally, you've done everything you can, and that's it.
10:58
Speaker 1: So in that scenario, your child be a US citizen.
11:01
Speaker 1: But there were a lot of complicated questions that then
11:04
Speaker 1: derived from there, which I think Justice coney Bart asked
11:08
Speaker 1: a very interesting one with regard to how slavery work
11:12
Speaker 1: and how it interfaced with human trafficking, because she asked,
11:16
Speaker 1: what if in the eighteen sixties or after, you know,
11:21
Speaker 1: the slave owner illegally trafficked slaves into the United States,
11:28
Speaker 1: would those children have been US citizens? And the Solicitor
11:32
Speaker 1: General said yes, that's the whole point of this law.
11:35
Speaker 1: And so then Justice coney Bart asked, well, what if
11:38
Speaker 1: someone was the modern day equivalent of a slave, now
11:41
Speaker 1: they were human trafficked into the United States, why wouldn't
11:45
Speaker 1: those children then be citizens of the United States, even
11:48
Speaker 1: if the executive order would cover them because they would
11:52
Speaker 1: only cover citizens and residents of the United States, and
11:56
Speaker 1: the Solicitor General didn't have a good answer for that question.
11:59
Speaker 1: He said, well, well, we can figure out a humanitarian
12:02
Speaker 1: exception to this, but that's not really what the executive
12:05
Speaker 1: order does. And so from that standpoint, I think what's
12:10
Speaker 1: going to ultimately make the difference is going to be
12:14
Speaker 1: how you try to apply something like this in practice.
12:18
Speaker 1: And I think there were questions there from Justice Jackson,
12:22
Speaker 1: Justice Roberts, and Justice Cony Barrett about these concepts of, Hey,
12:26
Speaker 1: you're going to take a very simple, bright line rule,
12:29
Speaker 1: and you're going to try to figure out all of
12:31
Speaker 1: these various permutations of it where people might end up
12:34
Speaker 1: with citizenship and might not. And I think that's ultimately
12:38
Speaker 1: going to be what troubles enough members of the Court
12:41
Speaker 1: to say that the executive Order is not valid. But
12:45
Speaker 1: it's going to be very interesting in terms of the
12:48
Speaker 1: analysis there.
12:51
Speaker 2: The Supreme Court seemed poised today to reject President Donald
12:55
Speaker 2: Trump's attempt to roll back birthright citizenship, in a case
12:59
Speaker 2: that was magnified by his presence in the courtroom. Conservative
13:03
Speaker 2: and liberal justice. His question whether Trump's executive order declaring
13:08
Speaker 2: that children born to parents who are in the United
13:11
Speaker 2: States illegally or temporarily are not American citizens could be
13:16
Speaker 2: squared with either constitution or federal law. Trump heard as
13:20
Speaker 2: his Solicitor General, John Sower, faced one skeptical question after another.
13:26
Speaker 2: The Fourteenth Amendment guarantees citizenship to anyone who's born in
13:30
Speaker 2: the United States and quote, subject to the jurisdiction thereof.
13:35
Speaker 2: The Solicitor General argued that the provision applies only to
13:39
Speaker 2: people who have a direct and immediate allegiance to the
13:42
Speaker 2: United States and have established domicile in the country. The
13:46
Speaker 2: Chief Justice had some problems with his argument.
13:49
Speaker 5: You obviously put a lot of weight on subject to
13:51
Speaker 5: the jurisdiction thereof, But the examples you give to support
13:55
Speaker 5: that strike me as very quirky. You know, children of
13:59
Speaker 5: an assators, children of enemies during a hostile invasion, children
14:04
Speaker 5: on warships, and then you expand it to the whole
14:08
Speaker 5: class of illegal aliens are here in the country. I'm
14:13
Speaker 5: not quite sure how you can get to that big
14:16
Speaker 5: group from such tiny and sort of idiosyncratic examples.
14:20
Speaker 2: In a series of decisions, lower courts have struck down
14:23
Speaker 2: the Executive Order as unconstitutional. The decisions have invoked the
14:27
Speaker 2: Supreme Court's eighteen ninety eight ruling in wankim Arc, which
14:32
Speaker 2: held at the US born child of Chinese nationals was
14:36
Speaker 2: a citizen, and Conservative Justice Brett Kavanaugh, a Trump appointee,
14:41
Speaker 2: cited that ruling in questioning whether the executive order was
14:45
Speaker 2: legal under federal statutes enacted in nineteen forty in nineteen
14:50
Speaker 2: fifty two.
14:51
Speaker 4: By the time of the nineteen forty and nineteen fifty
14:54
Speaker 4: two congressional actions, where Congress repeats subject to the jurisdiction
15:01
Speaker 4: thereof given Juan kim Ark, one might have expected Congress
15:06
Speaker 4: to use a different phrase if it wanted to try
15:11
Speaker 4: to disagree with.
15:12
Speaker 8: Wan kim Ark on what the scope of birthright citizenship
15:17
Speaker 8: or the scope of citizenship should be. And yet Congress
15:22
Speaker 8: repeats that same language, knowing what the interpretation had been.
15:27
Speaker 2: No court has accepted the Trump administration's argument. I've been
15:31
Speaker 2: talking to immigration law expert ly on Fresco of Holland
15:35
Speaker 2: and Knight lenn As we were saying, a lot of
15:37
Speaker 2: justices asked questions about the multiple references to domicile in
15:43
Speaker 2: that eighteen ninety eight decision. Is there a legal definition
15:48
Speaker 2: of domicile in the immigration laws.
15:50
Speaker 1: Well, I mean, normally, it's just that you live there.
15:52
Speaker 1: That's when we're talking about domicile for the purposes of
15:57
Speaker 1: you know, service a process or or where you have
16:01
Speaker 1: jurisdiction of the court. The court doesn't say, oh, you
16:06
Speaker 1: had this car accident in Maryland, but you're undocumented until now,
16:11
Speaker 1: you cannot be sued because you don't have a domicile
16:14
Speaker 1: in Maryland. They don't say that they allow you to
16:17
Speaker 1: be sued because that's the state of your domicile. Or
16:20
Speaker 1: you were operating this fraud operation out of New York State,
16:24
Speaker 1: but because you were here illegally, you were not able
16:27
Speaker 1: to set up a domicile. They don't ask that question,
16:30
Speaker 1: that second question about whether you were here legally or
16:34
Speaker 1: not and did not prevent you from having a domicile.
16:36
Speaker 1: The domicile normally just means where you are residing. And
16:41
Speaker 1: so this is a new unique thing that the government
16:44
Speaker 1: is arguing, which is that being here legally is a
16:47
Speaker 1: prerequisite to being able to form a domicile in the
16:50
Speaker 1: United States.
16:51
Speaker 2: When we first heard about this Trump executive order and
16:55
Speaker 2: the birthright citizenship, it seemed absurd and legal scholars were
17:00
Speaker 2: talking about how this, you know, wouldn't pass Muster. At
17:03
Speaker 2: the beginning of the Solicitor General's argument, just as Kagan said,
17:07
Speaker 2: his arguments were obscure and the Chief Justice called them quirky,
17:11
Speaker 2: But it seemed like by the end more justices were
17:14
Speaker 2: giving it credence than I thought initially would.
17:18
Speaker 1: Yes, I agree, I did not think that the pace
17:21
Speaker 1: of the argument went very well. But I actually think
17:24
Speaker 1: and we haven't touched on this yet, but I actually
17:27
Speaker 1: think perhaps it was a strategically genius move for President
17:32
Speaker 1: Trump to attend the oral argument, because I think that
17:35
Speaker 1: by him attending the oral argument, it actually made the
17:39
Speaker 1: questions from the conservative justices perhaps in a tone that
17:44
Speaker 1: they wouldn't have been had he not been there, And
17:47
Speaker 1: I think from that standpoint, it definitely may have impacted
17:52
Speaker 1: the way that argument went. I do think the argument
17:55
Speaker 1: presented by the Solicitor General might have been more sharply
17:59
Speaker 1: contested by the justices had President Trump not been there,
18:02
Speaker 1: but I think they didn't want to upset him, or
18:06
Speaker 1: you know, I just think people are sensitive to these
18:08
Speaker 1: human dynamics. It will be interesting to see what actually
18:11
Speaker 1: comes out of the decision making process versus the oral argument.
18:15
Speaker 1: Whereas usually you can tell a lot more from the
18:17
Speaker 1: oral argument. It's possible that this oral argument moved a
18:21
Speaker 1: bit into the world of theatrics. I do think though,
18:25
Speaker 1: that even though the questions were subtle, there were some
18:29
Speaker 1: very difficult questions, and I think one of them and
18:32
Speaker 1: this sort of touched on the Major Questions doctrine. Bye,
18:36
Speaker 1: by the way, for your listeners, the Major Questions doctrine
18:38
Speaker 1: is a doctrine that was created out of this Trump
18:41
Speaker 1: majority Supreme Court that basically says, if you're gonna have
18:45
Speaker 1: something like a regulation or an executive order that interprets
18:48
Speaker 1: the statute, and the statute is ambiguous, you're gonna need
18:51
Speaker 1: something better than that. For the regulation or the executive
18:56
Speaker 1: order to actually have power. You're gonna need Congress to
18:58
Speaker 1: come in and say and if it's a really important deal,
19:01
Speaker 1: and so, you can't have anything more important than citizenship.
19:04
Speaker 1: And so someone asked the question to the Solicitor General,
19:08
Speaker 1: what kind of evidence do we need after one hundred
19:12
Speaker 1: and fifty years of thinking that there was birthright citizenship
19:17
Speaker 1: in America to change it all of a sudden, like,
19:20
Speaker 1: how can we do that on the basis of just
19:23
Speaker 1: one president's executive order, when for one hundred and fifty
19:26
Speaker 1: years we thought it was one way. If this was
19:29
Speaker 1: so obvious, why did it go on for one hundred
19:32
Speaker 1: and fifty years? You know, what is the level of
19:35
Speaker 1: evidence we would need to overturn that on the basis
19:37
Speaker 1: of an executive order rather than Congress weighing in and
19:41
Speaker 1: changing it. And I didn't think that the Solicitor General
19:45
Speaker 1: really answered that question. I think the Solicitor General just said, well,
19:48
Speaker 1: you don't have to overturn anything. This was always how
19:51
Speaker 1: it was, and this was the way the Supreme Court
19:55
Speaker 1: thought it was also, and just basically trying to edge
19:58
Speaker 1: around the question. But I think if the Court really
20:02
Speaker 1: focuses on that question, which is sort of a corollary
20:06
Speaker 1: of the major questions doctrine, which is is this really
20:10
Speaker 1: an ambiguous question? Which I think if you're at five
20:13
Speaker 1: to four or something, you have to say is an
20:16
Speaker 1: ambiguous question? And you even had Justice course it say
20:19
Speaker 1: this is a mess. There's good arguments on both sides,
20:22
Speaker 1: and you had some other justices say that, and you
20:25
Speaker 1: had Justice Kavanaugh talking about the statute. Because there's two things.
20:29
Speaker 1: There's the Constitution and there's a statute, which says the
20:32
Speaker 1: same thing as the Constitution, which was passed in the
20:35
Speaker 1: nineteen forties, after there was already eighty years of this
20:41
Speaker 1: belief that you had birthright citizenship. So if you didn't
20:45
Speaker 1: think there was birthright citizenship, why would you pass the
20:48
Speaker 1: same exact words in a statute in nineteen forty If
20:52
Speaker 1: you wanted to change it, you would change it. And
20:54
Speaker 1: so the argument is based on all of that history,
20:58
Speaker 1: why would an executive order be sufficient given this major
21:02
Speaker 1: questions doctrine to change it? And I think that's going
21:05
Speaker 1: to be the ultimate argument that the Court's going to
21:07
Speaker 1: have to struggle with. That. Plus the administrability aspect of
21:12
Speaker 1: this Leon explained some of the problems in administering it.
21:17
Speaker 1: What do you do in all of these edge cases
21:20
Speaker 1: where you know, someone was smuggled into the country, someone's
21:23
Speaker 1: an applicant for a green card but they haven't gotten
21:26
Speaker 1: their green card yet, but they are an applicant for it.
21:29
Speaker 1: What you know, what do you do in all of
21:30
Speaker 1: these cases? And they're the administration is not going to
21:34
Speaker 1: have very good answers with regard to those questions, and
21:38
Speaker 1: I think the Court's going to have to decide, well,
21:40
Speaker 1: maybe it doesn't care about those administrability questions, or it says,
21:45
Speaker 1: look at the end of the day, if we're going
21:48
Speaker 1: to go down this road, and they may do this,
21:50
Speaker 1: they may they may potentially say at the end of
21:53
Speaker 1: the day, maybe Congress can have something to say about this,
21:57
Speaker 1: but they will need to say something about this, and
22:01
Speaker 1: we won't do it ourselves. So if Congress wants to
22:05
Speaker 1: change the way that the birthright citizenship law work, there's
22:10
Speaker 1: enough wiggle room there to define what subject to jurisdiction means.
22:13
Speaker 1: But Congress is going to have to do that, and
22:15
Speaker 1: that may be a ruling that the Court makes.
22:17
Speaker 2: So, just as Kavanaugh said, we'd like to decide the
22:20
Speaker 2: statutory question rather than the constitutional question. So if they
22:24
Speaker 2: based it on a statue, they base it on that
22:27
Speaker 2: nineteen forties law you're talking about, correct.
22:30
Speaker 1: They may say one of two things. They may either
22:32
Speaker 1: say that the nineteen forties law is ambiguous and based
22:37
Speaker 1: on the major questions doctrine go back to Congress and
22:41
Speaker 1: Congress has to figure out if they don't want certain
22:43
Speaker 1: people to get citizenship or not. Or they may say
22:46
Speaker 1: that the nineteen forties law is completely clear and what
22:50
Speaker 1: the nineteen forties law says is we knew for eighty
22:55
Speaker 1: years that there was citizenship that was given to people
22:59
Speaker 1: who are born in the United States, and we didn't
23:02
Speaker 1: change it because if we wanted to change it, we
23:04
Speaker 1: would have written words that were different. But we wrote
23:06
Speaker 1: the exact same words as part of a larger statutory scheme,
23:10
Speaker 1: because it wasn't just those few words. That was one
23:14
Speaker 1: basis in which you would get citizenship, and then it
23:17
Speaker 1: added other basies. So like it said, if you were
23:19
Speaker 1: born abroad but one of your parents was a US
23:22
Speaker 1: citizen and they'd lived here for five years, they could
23:25
Speaker 1: give you citizenship. So there was a bunch of ways.
23:28
Speaker 1: But the first way was you were born here, and
23:31
Speaker 1: that was the first law, and that law mirrored exactly
23:36
Speaker 1: word for word the Constitution. And so again, if they
23:40
Speaker 1: didn't think that that was true after eighty years of
23:44
Speaker 1: that being true, they would have tried to change it.
23:46
Speaker 1: So unclear, and the Solicitor General's answer was, well, they
23:52
Speaker 1: thought it was what it was in the eighteen sixties,
23:55
Speaker 1: and what it was in the eighteen sixties was that
23:57
Speaker 1: you didn't get birthright citizenship. Well, well, okay, but that's
24:01
Speaker 1: not really what happened. That's not true, and so I
24:05
Speaker 1: don't know where that puts the solicitors center. But so
24:07
Speaker 1: I do think if it's a statutory decision, then the
24:11
Speaker 1: statutory decision would be not in favor of the government.
24:15
Speaker 1: And that's why the government said, if you're going to
24:17
Speaker 1: rule against us, please use the statutory decision, because then
24:22
Speaker 1: what that would do is it would punt the issue
24:25
Speaker 1: to Congress to say, potentially, the Constitution doesn't prevent Congress
24:31
Speaker 1: from clarifying who is subject to the jurisdiction for the
24:34
Speaker 1: purposes of citizenship, and so now Congress can go and
24:38
Speaker 1: regulate in this matter if it wants to, and that
24:41
Speaker 1: would be fascinated. They would then punk the issue back
24:46
Speaker 1: to the Congress, and I could see if the government's
24:49
Speaker 1: going to win that being their win. I don't see
24:53
Speaker 1: them upholding this executive order. I don't see that. I
24:57
Speaker 1: don't see five votes for saying this executive order it's fine.
25:00
Speaker 1: But I think a win for the government would be
25:03
Speaker 1: that the Constitution hasn't frozen birthright citizenship in perpetuity forever.
25:09
Speaker 1: But what it has done is it has given Congress
25:12
Speaker 1: the ability to say who is subject to the jurisdiction
25:17
Speaker 1: of the United States, and we'll see we'll see what happened.
25:21
Speaker 2: Leon, what's your account of the justice's positions.
25:24
Speaker 1: I think there's three for sure in terms of validating
25:28
Speaker 1: the executive order, which are Justice Brown Jackson, Justice Kagan,
25:32
Speaker 1: Justice Sotomayor. There's Thomas and Alito for sure in upholding
25:36
Speaker 1: the executive order. And then the question is Justice Robert,
25:40
Speaker 1: Justice Course, Justice Kavanaugh, Justice Cony Barrett. And I think
25:44
Speaker 1: Robert asked enough question talking about the kooky nature of
25:48
Speaker 1: the government's executive order that he would be the fourth
25:51
Speaker 1: vote to invalidate the executive order. And I think Kavanaugh
25:56
Speaker 1: is trying to build a coalition around this statutory argument,
26:00
Speaker 1: which I think ultimately they carry the day because he
26:05
Speaker 1: may be the fifth vote concurring in the judgment essentially
26:09
Speaker 1: that the executive order is void. But he may say
26:13
Speaker 1: it's void because Congress hasn't done something, but Congress could
26:17
Speaker 1: do something, and I think there would be four votes
26:20
Speaker 1: for that for sure. I don't know where, just as
26:23
Speaker 1: Cony Barrett would be. I think her discussion about the
26:25
Speaker 1: human traffic thing and her history in the past with
26:29
Speaker 1: being friendly toward foreign national cases in other areas leads
26:34
Speaker 1: me to think she's not a fan of this executive
26:37
Speaker 1: order in any way, shape or form. So she might
26:40
Speaker 1: be a fifth clean vote for invalidating the order on
26:44
Speaker 1: constitutional grounds. But I could actually see no majority on
26:49
Speaker 1: invalidating the order on constitutional grounds, but a majority on
26:54
Speaker 1: invalidating the order on either constitutional or statutory grounds, with
27:00
Speaker 1: concurring opinions trying to figure out which one works and
27:03
Speaker 1: which one doesn't.
27:04
Speaker 2: I'm not sure why they took this case, opening a
27:07
Speaker 2: can of worm sort of.
27:09
Speaker 1: I really think they wanted to get some finality. It
27:11
Speaker 1: was an issue of incredible importance. The Trump administration asked
27:15
Speaker 1: them to take the case. And it is very very
27:19
Speaker 1: very rare that when the Solicitor General asked the Supreme
27:22
Speaker 1: Court to take a case, they don't take it. Some
27:24
Speaker 1: things happened, but very very very rare. So they wanted
27:28
Speaker 1: to bring some finality to this. But they may end
27:32
Speaker 1: up really sort of getting up all the sites to
27:36
Speaker 1: this if they do what I think they're gonna do,
27:38
Speaker 1: which is punted to the Congress and say, hey, Congress,
27:43
Speaker 1: if you want to put some limits to this term
27:46
Speaker 1: of jurisdiction, then domicile go ahead. Have at it now.
27:50
Speaker 1: Will the Congress ever pass up to law. Will there
27:52
Speaker 1: be sixty votes? Would it be worth for the Republicans
27:55
Speaker 1: to finally abandon the filibuster in order to do this?
27:59
Speaker 1: Would it be the kind of thing where if you
28:01
Speaker 1: abandoned the filibuster, it would literally change who was a citizen,
28:04
Speaker 1: depending on who was in Congress at that time. It
28:07
Speaker 1: could end up being completely crazy. We'll see, But we've
28:11
Speaker 1: seen enough dramatic change from this court on other issues
28:15
Speaker 1: that I don't put it past them to allow this
28:17
Speaker 1: to happen.
28:18
Speaker 2: I thought it would They would have to pass a
28:20
Speaker 2: constitutional amendment in order to change what the forteenth Amendment says.
28:24
Speaker 1: So one outcome would be and this is what they
28:27
Speaker 1: asked the ACLU lawyer, And what Cecilia Wan was saying
28:30
Speaker 1: is it's frozen in time. That's it. The exceptions that
28:34
Speaker 1: we know are the only exceptions, and the Constitution bans
28:38
Speaker 1: any future exception. So that's the ruling that the foreign
28:42
Speaker 1: national wants in this case, that the ACLU want, that
28:45
Speaker 1: the immigration advocates want, that's what they want. That Congress
28:48
Speaker 1: has no power on this, but that doesn't have to
28:51
Speaker 1: be the ruling. The ruling could be that Congress does
28:55
Speaker 1: have the power within limits to regulate who is subject
28:59
Speaker 1: to the jurisdic of the United States, given that this
29:02
Speaker 1: issue of immigration and nationality was not an issue in
29:06
Speaker 1: the eighteen sixties, and so we will allow Congress to
29:10
Speaker 1: regulate in this space. But it has to be Congress,
29:12
Speaker 1: it can't be an executive order. And so the executive
29:16
Speaker 1: order is thrown out. Because from that standpoint, the Court
29:18
Speaker 1: is still happy they threw out the executive order, no
29:21
Speaker 1: confusion has caused. Anything that happens later is subject to
29:25
Speaker 1: the political process. But it's not dead, because if you
29:27
Speaker 1: make it a constitutional then it's dead forever. But if
29:31
Speaker 1: you make it statutory, you at least allow this to
29:34
Speaker 1: be a political thing. And I really do think that
29:36
Speaker 1: there are some justices on the Court that are bothered
29:40
Speaker 1: enough by the concept of birth tourism, which is where
29:44
Speaker 1: people pay to have their children in the United States,
29:47
Speaker 1: and other things of this nature, that they do want
29:50
Speaker 1: to leave the possibility open that there could be some
29:53
Speaker 1: remedy for this other than a constitutional amendment, because they
29:57
Speaker 1: know that that would be killing it otherwise. That's why,
30:00
Speaker 1: for some reason, if you put a gun to my head,
30:02
Speaker 1: I would say that they're going to try to figure
30:05
Speaker 1: out some way not to make it a completely frozen
30:07
Speaker 1: and time constitutional question, but we'll see what happens.
30:12
Speaker 2: We'll see by the end of June. Thanks so much
30:14
Speaker 2: for spending so much time with me. Leon. That's Leon
30:17
Speaker 2: Fresco of Honda Night, and that's it for this edition
30:20
Speaker 2: of The Bloomberg Law Show. Remember you can always get
30:22
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You
30:26
Speaker 2: can find them on Apple Podcasts, Spotify, and at www
30:30
Speaker 2: dot bloomberg dot com slash podcast Slash Law, and remember
30:34
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
30:37
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
30:41
Speaker 2: listening to Bloomberg