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Trump Wants to End Birthright Citizenship & Justice Thomas' Ethics · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: As part of my plan to secure the border, on
0:10
Speaker 2: day one my new term in office, I will sign
0:13
Speaker 2: an executive order making clear to federal agencies that, under
0:18
Speaker 2: the correct interpretation of the law going forward, the future
0:22
Speaker 2: children of illegal aliens will not receive automatic US citizenship.
0:27
Speaker 3: President elect Donald Trump has promised to end birthright citizenship
0:32
Speaker 3: as soon as he gets into office. The policy means
0:35
Speaker 3: that anyone born in the United States automatically becomes an
0:39
Speaker 3: American citizen, even if they're born to someone who's here illegally.
0:44
Speaker 3: The leading Supreme Court case on birthright citizenship dates back
0:49
Speaker 3: to eighteen ninety eight, and any attempt to get rid
0:52
Speaker 3: of it will certainly face legal challenges. Joining me is
0:56
Speaker 3: immigration law expert Leon Fresco, a partner at Holliday Night.
1:00
Speaker 3: Leon give us a little bit of the history of
1:03
Speaker 3: birthright citizenship.
1:05
Speaker 1: Well. Birthright citizenship is basically a product of the Civil
1:09
Speaker 1: War and the end of Slavery Amendments, the thirteen fourteen
1:12
Speaker 1: to fifteenth amendments that were enacted to end slavery, and
1:16
Speaker 1: under the fourteenth Amendment, what it said was that anyone
1:19
Speaker 1: born in the United States that was within the jurisdiction
1:23
Speaker 1: of the United States, and that's going to be the
1:25
Speaker 1: key point, is a citizen. And so this had nothing
1:28
Speaker 1: to do with anything related to immigration. It was just
1:31
Speaker 1: to say you couldn't have people born here who were
1:34
Speaker 1: not citizens because that was sort of the way of
1:37
Speaker 1: the world at that time, which is, you had slaves
1:40
Speaker 1: and you had people who were not slaves, and to
1:42
Speaker 1: end that you had to say people who were born
1:45
Speaker 1: here had the full right of citizenship. And so that
1:49
Speaker 1: was the way it was written to end slavery. Now,
1:52
Speaker 1: what that translates to for the purposes of post the
1:56
Speaker 1: enactment of the fourteenth Amendment and where we are today
1:59
Speaker 1: is that any person born in the United States is
2:02
Speaker 1: a citizen. So that can literally mean that if someone
2:07
Speaker 1: was here on a tourist visa and they had to
2:09
Speaker 1: go to the hospital and then the baby was delivered
2:11
Speaker 1: at that moment, that baby would be a US citizen,
2:14
Speaker 1: even if they only spent one day in the United States.
2:17
Speaker 1: As long as they can get the recording of the
2:20
Speaker 1: birth in the United States, that baby would be entitled
2:23
Speaker 1: to US citizenship, which also means that when that baby
2:27
Speaker 1: turns twenty one years old, they could actually petition for
2:31
Speaker 1: a green card for the parents who were here on
2:33
Speaker 1: a tourist visa as well.
2:36
Speaker 3: So that language of the Fourteenth Amendment quote all persons
2:40
Speaker 3: born or naturalized in the United States and subject to
2:44
Speaker 3: the jurisdiction thereof, are citizens of the United States, And
2:49
Speaker 3: some proponents of immigration restrictions have argued that those words
2:54
Speaker 3: subject to the jurisdiction thereof in the fourteenth Amendment allow
3:00
Speaker 3: the US to deny citizenship to babies born to those
3:05
Speaker 3: in the country illegally.
3:07
Speaker 1: So the real purpose of that language of subject to
3:11
Speaker 1: the jurisdiction is to cover the following situation. If I
3:15
Speaker 1: am here and I am working for the Embassy of Denmark,
3:20
Speaker 1: let's say that means that I am, you know, an
3:24
Speaker 1: ambassador or a consul general or something. I am subject
3:28
Speaker 1: to the privileges and immunities of something called the Vienna
3:31
Speaker 1: Convention on Consular Relations. You may have seen, or your
3:34
Speaker 1: viewers or listeners may have seen, you know, movies like
3:38
Speaker 1: Lethal Weapon where people say I have diplomatic community, you
3:41
Speaker 1: cannot arrest me for whatever crimes I'm committing in this
3:45
Speaker 1: movie or whatever. And that comes from the Vienna Convention
3:49
Speaker 1: on Consular Relations, meaning people who have diplomatic community are
3:53
Speaker 1: not subject to the jurisdiction of the United States. So
3:56
Speaker 1: what does that mean. If people who have diplomatic community
3:59
Speaker 1: have children in the United States, those children do not
4:03
Speaker 1: become US citizens. That's what that means. It's historically been
4:07
Speaker 1: meant to apply to people with diplomatic communities. President Trump,
4:11
Speaker 1: and they want to say that someone who is here
4:13
Speaker 1: in America illegally, who has children in the United States
4:18
Speaker 1: is not covered by the fourteenth Amendment because they're saying
4:22
Speaker 1: that they want to interpret this clause of not being
4:26
Speaker 1: subject to the jurisdiction of the United States as meaning
4:30
Speaker 1: that those individuals don't get birthright citizenship, which has not
4:35
Speaker 1: been historically the case. Historically, even if an inndocumented person
4:38
Speaker 1: has children, those children are Americans. Here's what's interesting about that.
4:44
Speaker 1: If you really want to make that argument, what you
4:46
Speaker 1: would technically be saying is that an undocumented person is
4:51
Speaker 1: not subject to the jurisdiction of the United States, meaning
4:54
Speaker 1: that they have diplomatic communities. So someone who's here without
4:58
Speaker 1: status could act, you know, park their car illegally or
5:03
Speaker 1: speed or do something else and they would say, well,
5:06
Speaker 1: you know, the President says that I'm that's subject to
5:09
Speaker 1: the jurisdiction of the United States. So there you go
5:12
Speaker 1: and the story. So I don't know how they intend
5:15
Speaker 1: to harmonize that point for the purposes of this discussion.
5:18
Speaker 3: Is there only one case, one Supreme Court case that's considered.
5:23
Speaker 1: There is a case from more than one hundred years
5:25
Speaker 1: ago called the United States versus One kim Ark, and
5:29
Speaker 1: it was a case where there was a child born
5:31
Speaker 1: in the United States to Chinese parents who at that
5:34
Speaker 1: time were prohibited from becoming US citizens because there was
5:38
Speaker 1: all of these laws about how to exclude Chinese nationals,
5:42
Speaker 1: and then there was laws about actually deporting legal Chinese
5:45
Speaker 1: people who were here, and so they were trying to
5:48
Speaker 1: deport this child who was part of this you know,
5:54
Speaker 1: just Chinese uh desire to deport people from China, and
6:00
Speaker 1: they said that in this situation, that child is a
6:03
Speaker 1: US citizen, you can't actually deport this person because the
6:07
Speaker 1: child was born in the United States. And so that's
6:11
Speaker 1: the only case we have analyzing that issue. And the
6:15
Speaker 1: question is, Okay, if President Trump issues an executive order
6:18
Speaker 1: when it gets challenged, would this version of the Supreme
6:22
Speaker 1: Court decide no, we're going to actually look at this
6:25
Speaker 1: again and decide that this subject to the jurisdiction actually
6:30
Speaker 1: can be interpreted in a way to prevent people who
6:32
Speaker 1: are undocumented from being able to have kids who are
6:36
Speaker 1: US citizens.
6:37
Speaker 3: So, as you mentioned, Trump said that he could enact
6:42
Speaker 3: a plan to do away with birthright citizenship through an
6:46
Speaker 3: executive order.
6:48
Speaker 1: Correct, and the plan would be as follows. What he
6:51
Speaker 1: would try to do is to force the issue and
6:53
Speaker 1: get it before the courts. In this way, he would
6:56
Speaker 1: just issue an executive order that says, dear United States
7:00
Speaker 1: Passport Office, if somebody comes and applies for a passport
7:04
Speaker 1: and the only thing that they hand you is a
7:06
Speaker 1: birth certificate and they don't give you anything else, You're
7:11
Speaker 1: gonna have to find out some information about the parents
7:13
Speaker 1: before you give them a US passport. And this will
7:17
Speaker 1: require a major change in the way the Passport Office operates. Currently,
7:22
Speaker 1: you show your birth certificate, that's the end of story.
7:24
Speaker 1: That they confirm it with the state registrar, and that's
7:28
Speaker 1: the end. You get a passport. Now you will have
7:31
Speaker 1: to show some information on at least one of your
7:35
Speaker 1: parents to show that at least one of them was
7:38
Speaker 1: legally here inside the United States at the time of
7:41
Speaker 1: your birth. And so that's going to be quite fascinating
7:45
Speaker 1: because that will require a whole new adjudication to occur
7:50
Speaker 1: that didn't previously occur. So on top of just the
7:54
Speaker 1: normal adjudication that would be well, is this whole exercise
8:00
Speaker 1: of trying to get rid of birthright citizenship illegal and
8:04
Speaker 1: that litigation is certainly going to happen. There might actually
8:07
Speaker 1: be case by case adjudication, which is permitted. There's a
8:10
Speaker 1: lot of this passport adjudication that goes on in America,
8:13
Speaker 1: which is that when the state Department denies you a passport,
8:16
Speaker 1: you can actually file a federal court case and you
8:18
Speaker 1: can say, look, I don't have this information because my
8:21
Speaker 1: mother or my father abandoned me or whatever reason. And
8:24
Speaker 1: you might be someone who's lineage is here four hundred
8:27
Speaker 1: years but you don't know because you were abandoned by
8:30
Speaker 1: your parents or something else. And it's all going to
8:33
Speaker 1: be quite fascinating to see how the Passport office handles
8:38
Speaker 1: all of this. But that's the idea get that case
8:41
Speaker 1: in motion by triggering through an executive order an instruction
8:46
Speaker 1: to the State Department that says, don't just accept the
8:49
Speaker 1: birth certificate. You're gonna have to find out some information
8:52
Speaker 1: about the parents of these individuals to see if at
8:55
Speaker 1: least one of them was in legal status before this
8:59
Speaker 1: child was born, before you give them a US passport.
9:02
Speaker 1: And then there's a belief that the executive order would
9:04
Speaker 1: also cover the Social Security Administration and would say that
9:09
Speaker 1: if a child tries to apply for a Social Security number,
9:13
Speaker 1: that social Security number wouldn't be given unless, again there's
9:17
Speaker 1: some beliefs that the parents were in the United States legally.
9:21
Speaker 1: This also would require a dramatic change in how the
9:25
Speaker 1: Social Security Administration does this, because a lot of this
9:28
Speaker 1: has already been sort of automated through the hospital that
9:32
Speaker 1: you have a hospital and you have a birth, and
9:33
Speaker 1: you have a birth certificate, and then you have a
9:36
Speaker 1: Social Security number that gets generated, and a lot of
9:39
Speaker 1: this is quite almost automated in its nature. And so
9:43
Speaker 1: now you have to have this new and quite potentially
9:47
Speaker 1: burden some extra requirements that you provide all of the
9:51
Speaker 1: evidence on the parents. It's going to actually be quite
9:54
Speaker 1: a cumbersome process while it's in litigation.
9:57
Speaker 3: If he issued an executive order like that, it would
10:00
Speaker 3: immediately be challenged in the courts. What do you think
10:04
Speaker 3: the chances are that the courts would allow.
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Speaker 1: That my sort of belief in terms of if you
10:11
Speaker 1: had judges that were CHET GPT judges and not human judges,
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Speaker 1: for instance, I don't think the case would get very far.
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Speaker 1: Meaning I don't think that you could end birthright citizenship
10:21
Speaker 1: in this way because I think given the historical interpretation
10:25
Speaker 1: of it, and given what this word subject to the
10:28
Speaker 1: jurisdiction means and what it was intended for, I don't
10:32
Speaker 1: see how it would be possible to say that it
10:35
Speaker 1: was intended to cover undocumented individuals. So I do think
10:40
Speaker 1: it would be more of just saying you tried, and
10:43
Speaker 1: then having the court shut it down and then moving
10:45
Speaker 1: to some other mechanism to try to resolve this. But
10:50
Speaker 1: because the judges are human and there isn't just a
10:54
Speaker 1: chat GPT component to this, you never know. Maybe some
10:58
Speaker 1: people will make that argument, because there's certainly a lot
11:00
Speaker 1: of political people making the argument right now. But I
11:04
Speaker 1: just don't think you get to fight Supreme Court justices
11:06
Speaker 1: at the end of the day on this issue, because
11:09
Speaker 1: I think the textualists will be clear that we know
11:13
Speaker 1: what the intent of this was at the time that
11:16
Speaker 1: was written, and there's no way we can say it
11:19
Speaker 1: meant to cover this issue of immigration because during the
11:22
Speaker 1: Civil War we still didn't really have immigration laws yet
11:26
Speaker 1: in the United States. The first real immigration laws came
11:31
Speaker 1: after the Civil War in the late eighteen hundreds. So
11:34
Speaker 1: the idea that anything related to the Fourteenth Amendment had
11:37
Speaker 1: anything to do with immigration would be very difficult to
11:41
Speaker 1: justify because it just wasn't in the cards at that time.
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Speaker 3: Okay, stay with me, Leon coming up next on the
11:49
Speaker 3: Bloomberg Law Show, Why MAGA is fighting over h one
11:53
Speaker 3: B visas. I'm June Gross. When you're listening to Bloomberg.
11:57
Speaker 3: Donald Trump has promised a crack down on illegal immigration
12:01
Speaker 3: on day one of his administration. He's also promised to
12:05
Speaker 3: get rid of birthright citizenship, which gives anyone born in
12:09
Speaker 3: this country American citizenship, even if their parents are here
12:13
Speaker 3: illegally or are here legally on tourist visas.
12:17
Speaker 2: My order will also end their unfair practice known as
12:20
Speaker 2: birth tourism. Were hundreds of thousands of people from all
12:24
Speaker 2: over the planet squad in hotels for their last few
12:28
Speaker 2: weeks of pregnancy to illegitimately and illegally obtain you a
12:33
Speaker 2: citizenship for the child, often to later exploit chain migration
12:39
Speaker 2: to jump the line and get green cards for themselves
12:42
Speaker 2: and their family members.
12:44
Speaker 3: I've been talking to immigration law expert Leon Fresco. Leon
12:49
Speaker 3: Trump could attempt to end birthright citizenship through a constitutional amendment, theoretically,
12:56
Speaker 3: because a constitutional amendment requires two thirds of both houses
13:02
Speaker 3: and ratification by three fourths of the state legislature, so
13:05
Speaker 3: it's almost an impossibility these days. Are there any estimates
13:09
Speaker 3: of how many people have birthright citizenship who are born
13:14
Speaker 3: here but their parents are not here legally.
13:17
Speaker 1: Well, one of the issues is it's going to depend
13:20
Speaker 1: how you want to define the excluded class, because some
13:24
Speaker 1: people want to say your parents had to have had
13:27
Speaker 1: citizenship or at least a green card meaning lawful permanent residence,
13:32
Speaker 1: and if they were here on any other visa, meaning
13:35
Speaker 1: a tourist visa. So even if they were here legally,
13:37
Speaker 1: but they were here on a tourist visa or a
13:39
Speaker 1: work visa. Some of these work visas can be quite
13:42
Speaker 1: extensive in terms of their length that these still wouldn't
13:46
Speaker 1: count to confer birthright citizenship. So if we were talking
13:49
Speaker 1: about that, we'd be talking about millions of people. If
13:53
Speaker 1: we're talking about just the children of two purely undocumented parents,
14:00
Speaker 1: we're probably talking about hundreds of thousands of people. So
14:03
Speaker 1: we're not talking about millions of people full we are
14:06
Speaker 1: talking about hundreds of thousands of people. But there is
14:10
Speaker 1: some concern and it has been raised in the past,
14:12
Speaker 1: and it's certainly not something that is nonexistent about this
14:16
Speaker 1: concept of quote unquote birth tourism where people come to
14:21
Speaker 1: the United States for the purpose of creating a United
14:26
Speaker 1: States that is in child that can then be used
14:29
Speaker 1: to apply for the Green card for the parents twenty
14:31
Speaker 1: one years later. And that certainly does happen, and I've
14:34
Speaker 1: seen those cases, so it's not that it doesn't happen.
14:38
Speaker 1: But the question is with those people also be excluded
14:42
Speaker 1: from the group. I know that they want to exclude
14:45
Speaker 1: those people moving forward, but then actually you also have
14:48
Speaker 1: some legitimate questions about there are many scenarios where what
14:53
Speaker 1: is happening is it's not quote unquote birth tourism, but
14:58
Speaker 1: that's a country doesn't necessarily have a specific medical advanced
15:04
Speaker 1: thing for whatever medical situation is happening in a pregnancy,
15:09
Speaker 1: and the doctors in that country will say, hey, you
15:11
Speaker 1: really need to travel to the US because you have
15:14
Speaker 1: a very high risk pregnancy or there's some complication with
15:17
Speaker 1: the fetus or whatever it may be. And the question
15:21
Speaker 1: is are all of those people going to be banned
15:24
Speaker 1: from entering the United States? Currently those people are banned.
15:27
Speaker 1: What they have to show is that they have enough
15:29
Speaker 1: money to have the coverage and cover the costs, and
15:33
Speaker 1: that there really is some medical urgency for this. And
15:36
Speaker 1: if you don't actually have any immigration problems in your background,
15:40
Speaker 1: you can get a visitor visa. And would this be
15:43
Speaker 1: eliminated here even in these cases of very high risk pregnancies.
15:48
Speaker 1: I don't know, but it would certainly be one step
15:51
Speaker 1: backward in these specific humanitarian cases.
15:55
Speaker 3: And let's say there is birthright citizenship. A child is
15:59
Speaker 3: born one years later tries to get green cards for
16:02
Speaker 3: his or her parents. Are those green cards easy to
16:06
Speaker 3: get if you're a citizen?
16:08
Speaker 1: Yeah, believe it or not, they are. The test would
16:11
Speaker 1: be that you would have to show that there's a
16:13
Speaker 1: US citizen, which that child is now, who's over twenty one,
16:17
Speaker 1: and that they are applying for their parents, and that
16:20
Speaker 1: there is an actual parent child relationship there. And that's it.
16:25
Speaker 1: That's the test. I mean. The only other thing that
16:27
Speaker 1: is required is you need the child to have a
16:31
Speaker 1: certain amount of financial means in order to guarantee that
16:35
Speaker 1: the parents will not be dependent on welfare. But usually
16:39
Speaker 1: what happens in that situation is the parents will give
16:42
Speaker 1: the child the assets that are necessary in order to
16:46
Speaker 1: have that burden mess or they find a United States
16:50
Speaker 1: citizen who's willing to provide that guarantee that they won't
16:55
Speaker 1: use public benefits. But that's the only real obstacle is this,
17:00
Speaker 1: Who's going to be able to say that you won't
17:02
Speaker 1: be using public benefits? There's an assets test that's there
17:07
Speaker 1: that you could just say I have sufficient assets to
17:09
Speaker 1: make sure that this doesn't happen.
17:11
Speaker 3: Well, could Trump change that part of it and say
17:14
Speaker 3: we're not going to get green cards that easily?
17:16
Speaker 1: Well, what Trump could do is make it harder in
17:19
Speaker 1: that situation to meet the assets test. That certainly he
17:23
Speaker 1: can do through the public charge a component of this,
17:26
Speaker 1: but he can't actually change how the green card works
17:31
Speaker 1: without changing the statute. So there you would need Congress,
17:34
Speaker 1: and you certainly could do that. You couldn't do it
17:37
Speaker 1: through the child because then you'd have what's called two
17:39
Speaker 1: different classes of citizens, and you could have an equal
17:42
Speaker 1: protection problem, but you could do it through legislating against
17:47
Speaker 1: the parents. And you could say that a parent who
17:51
Speaker 1: gave birth to a child in the United States while
17:56
Speaker 1: either on a visitor visa or any illegal status, is
18:00
Speaker 1: not able to obtain lawful permanent residence on the basis
18:03
Speaker 1: of that child. So you do it that way, You've
18:06
Speaker 1: put a ban on the parents and not on the child,
18:10
Speaker 1: and so that way it wouldn't be an equal protection violation.
18:14
Speaker 1: And so you could do that, but again this would
18:16
Speaker 1: require an act of Congress. And the question is, you
18:19
Speaker 1: know what is Congress willing to do on a bipartisan basis.
18:22
Speaker 1: I do think you could get to something like that
18:25
Speaker 1: if you had a larger overhaul of everything, and so
18:29
Speaker 1: you had some things that helped people who were already here,
18:32
Speaker 1: and then you did some things on the enforcement side
18:34
Speaker 1: and all of that. You could get to a bill
18:37
Speaker 1: like that. But just a bill that just did that
18:40
Speaker 1: would probably be unlikely to get any Democratic support without
18:44
Speaker 1: something in it that Democrats also want.
18:47
Speaker 3: Let's talk about the H one B visas and this
18:50
Speaker 3: public fight among high profile supporters of Trump over these
18:55
Speaker 3: visas for highly skilled workers. Are we just talking about
18:59
Speaker 3: eighty five thousand visas a year? Is that the cap?
19:03
Speaker 1: Well, here's what's very interesting about that. The program is
19:05
Speaker 1: actually quite complex in this sense. So there's first a
19:09
Speaker 1: sixty five thousand annual cap for people who apply for
19:14
Speaker 1: the visa who have a college degree and have a
19:17
Speaker 1: job that requires that specific college degree. Then there's an
19:21
Speaker 1: extra twenty thousand for people who have a master's degree
19:26
Speaker 1: and have a job that requires that master's degree. So
19:30
Speaker 1: that's the key test is that it has to match that.
19:33
Speaker 1: But in addition, there's an exemption from the cap, meaning
19:36
Speaker 1: you can exceed the cap in an unlimited amount for
19:40
Speaker 1: any individual who is employed by either a nonprofit research institution.
19:46
Speaker 1: That would be things like you know, the Script's Research
19:49
Speaker 1: Foundation or the Bookings Institute, or any nonprofit that does research,
19:55
Speaker 1: or a university, so a university can also employ the person,
20:00
Speaker 1: and also the governments themselves or a contractor who's providing
20:05
Speaker 1: the services to the government. And so through those mechanisms
20:10
Speaker 1: you actually have you know, maybe two three hundred thousand
20:13
Speaker 1: people a year who use the H one B visa
20:17
Speaker 1: one way or the other in order to remain in
20:20
Speaker 1: the United States, and the traditional pipeline is you come
20:23
Speaker 1: as a foreign student. You then do something called OPT
20:27
Speaker 1: which is optional practical training, which is something that was
20:30
Speaker 1: invented by regulation, which allows you to work while you
20:34
Speaker 1: are on a student visa. Then if the company that
20:37
Speaker 1: you're working for like to you, they petition for you
20:40
Speaker 1: to have one of visa AH one B visas. And
20:43
Speaker 1: then if that happens and they like you even further,
20:46
Speaker 1: they can petition for you to have a Green card.
20:49
Speaker 1: But the problem is these green card categories are all
20:52
Speaker 1: backlogs for many, many, many years, and so what's happening
20:56
Speaker 1: is people are stuck on these H one B visas
20:59
Speaker 1: for many years. And both the people on the H
21:03
Speaker 1: one V visa but also the competitors for the people
21:07
Speaker 1: on the H one V visas believe that this creates
21:10
Speaker 1: a workplace situation that is very anti American worker because
21:15
Speaker 1: if you have people that are basically stuck at an employer,
21:20
Speaker 1: then that not only makes them in a difficult situation,
21:24
Speaker 1: but it also makes the American competitors disadvantage because why
21:28
Speaker 1: wouldn't an employer prefer someone who's stuck than someone who
21:32
Speaker 1: has free agency.
21:34
Speaker 3: So Leon it doesn't seem like it's that many people.
21:37
Speaker 3: Then why this focus on it. I mean, we're not
21:40
Speaker 3: talking millions.
21:41
Speaker 1: Are we correct? We're not talking millions. The reason I
21:46
Speaker 1: think that you see this anger in this debate is
21:49
Speaker 1: because it's a very emotional debate, meaning that the people
21:54
Speaker 1: who feel that they've been aggrieved by this feel that
21:58
Speaker 1: they've done everything correct, meaning they've gone to a university,
22:02
Speaker 1: they've obtained the degree. It's been a degree and some
22:05
Speaker 1: subject that's not been a highly desirable one, meaning you're
22:10
Speaker 1: doing something very difficult at school. You're getting an engineering degree,
22:13
Speaker 1: or you're getting a mechanical engineering degree, or or something
22:17
Speaker 1: that is a very very difficult, arduous experience. So you
22:20
Speaker 1: do all of that, and then at the end of
22:22
Speaker 1: the day, your reward isn't like it might be if
22:25
Speaker 1: you go into banking and you're making millions of dollars.
22:28
Speaker 1: You're making not so much money, and you're competing with
22:31
Speaker 1: people from all over the world where those people are
22:35
Speaker 1: driving down the cost of your wages. This is what
22:38
Speaker 1: people get angry about, and even if it hasn't happened
22:41
Speaker 1: to them, they anecdotally will know of a story in
22:45
Speaker 1: which it's happened and they get upset about it.
22:49
Speaker 3: And so what are Trump supporters who are critics of
22:52
Speaker 3: the H one B visa program looking to do.
22:56
Speaker 1: Basically, here is what they would want to do. And
22:59
Speaker 1: this is where it gets super complicated right now. Unlike
23:04
Speaker 1: the green card process, because when you apply for someone
23:07
Speaker 1: for unemployment based green card, in many circumstances, not all,
23:11
Speaker 1: but in many, the way you have to get that
23:14
Speaker 1: employment based green card is to do what's called the
23:16
Speaker 1: labor market test, where you proved to the Department of Labor.
23:20
Speaker 1: I tried to hire an American, but that American was
23:23
Speaker 1: not available, and so that's why I had to hire
23:26
Speaker 1: the foreign national. Now, there's a lot of criticism about
23:29
Speaker 1: how that process works and how people operate in it
23:32
Speaker 1: and all of that. So that process is by no
23:35
Speaker 1: means perfect, but they want to put that into the
23:39
Speaker 1: H one B as well, because right now the H
23:41
Speaker 1: one B does not prevent a company from directly hiring
23:47
Speaker 1: a foreign worker without trying to first determine if an
23:50
Speaker 1: American was available for the job. There are some people
23:53
Speaker 1: who just want to end the program or to have
23:56
Speaker 1: President Trump do a travel band like he did with
23:59
Speaker 1: other visa You know when there was the Middle Eastern
24:02
Speaker 1: Travel Band and just say, look, I'm banning the whole program.
24:05
Speaker 1: But that's not ultimately what the press release of President
24:09
Speaker 1: Trump said or what others said. What they came to
24:14
Speaker 1: is this other debate of where they want to go
24:16
Speaker 1: is to say, if somebody's going to hire someone on
24:20
Speaker 1: an H one B, they have to show that there
24:22
Speaker 1: isn't an American worker who can do that job. But
24:25
Speaker 1: here's where that gets complicated. The H one B Statute
24:29
Speaker 1: was written with such detail and complexity unlike any other
24:33
Speaker 1: statute because when it was written, it was written by
24:36
Speaker 1: baffers and legislators who knew how contentious immigration was and
24:42
Speaker 1: how it could be subject to the wins of different administrations.
24:45
Speaker 1: So they were very wise at the time and how
24:48
Speaker 1: they implemented their goals, and so unlike many other things,
24:52
Speaker 1: these individuals actually were very very careful on how they
24:56
Speaker 1: wrote it. And so any change to the H one
24:59
Speaker 1: B pretty much has be done by statute, meaning Congress
25:02
Speaker 1: has the right to change it. It's very hard to
25:05
Speaker 1: change it administratively.
25:06
Speaker 3: And big picture, leon do you think that come Inauguration day,
25:11
Speaker 3: homeland security is going to be geared up enough to
25:14
Speaker 3: start deportations that will see that.
25:17
Speaker 1: I think you will start to see operations that are
25:20
Speaker 1: meant to capture the public attention. So I think they
25:25
Speaker 1: will say, here, give me a list of people with
25:28
Speaker 1: criminal convictions, and give me a list of people with
25:32
Speaker 1: deportation orders that have already been issued, and we're going
25:35
Speaker 1: to start operations in big cities that are for the
25:39
Speaker 1: purpose of finding those people and detaining them and putting
25:43
Speaker 1: them in deportation proceedings. And so the idea will be
25:47
Speaker 1: that by doing those operations and announcing them and putting
25:51
Speaker 1: them in the press, and perhaps doing some things that
25:54
Speaker 1: were more noticeable than in the past, well maybe instead
25:58
Speaker 1: of going to the person's house, you go to the
26:01
Speaker 1: person's workplace or to some other public place and pick
26:05
Speaker 1: the person up. That would lead to sort of more
26:09
Speaker 1: tension and nervousness in the communities that are affected by
26:13
Speaker 1: these operations, so that people would start to say, well,
26:16
Speaker 1: I can't live with this kind of stress. I'm going
26:18
Speaker 1: to just leave the United States. And so I think
26:21
Speaker 1: that's what you're going to see. I don't think you're
26:24
Speaker 1: going to see millions of people being detained or any
26:27
Speaker 1: of that. I don't think there's the infrastructure for it.
26:30
Speaker 1: There's not the legal resources for this. But the idea is,
26:35
Speaker 1: can certain operations be created that have enough publicity and
26:39
Speaker 1: create enough nervousness that people will then decide that they
26:42
Speaker 1: want to leave the United States.
26:45
Speaker 3: I have a feeling the next four years there's going
26:48
Speaker 3: to be a lot of immigration issues for you to
26:50
Speaker 3: talk about. Leon, Thanks so much. That's Leon Fresco of
26:54
Speaker 3: Holland and Knight coming up next. Justice Clarence Thomas appears
26:58
Speaker 3: to be off the hook those ethical violations. This is Bloomberg.
27:04
Speaker 3: Justice Clarence Thomas has been mired in controversy since Pro
27:08
Speaker 3: public Are revealed in twenty twenty three that he accepted
27:12
Speaker 3: luxury trips and gifts worth millions of dollars from a
27:15
Speaker 3: GOP mega donor for decades, and now the federal Judiciary
27:20
Speaker 3: has decided Thomas will not face a federal investigation of
27:24
Speaker 3: ethics violations. The US Judicial Conference announced that it will
27:29
Speaker 3: not refer allegations that Thomas may have violated ethics laws
27:34
Speaker 3: to the Justice Department. The Conference also announced that it
27:37
Speaker 3: will not refer allegations that Justice Katanji Brown Jackson failed
27:42
Speaker 3: to report her husband's income from medical malpractice consulting fees.
27:47
Speaker 3: Joining me is ethics law expert Stephen Gillers, a professor
27:50
Speaker 3: at NYU Law School. In this letter, Judge Robert Conrad,
27:55
Speaker 3: the director of the Administrative Office of the US Courts,
28:00
Speaker 3: and the Judicial Conference does not superintend the justices of
28:04
Speaker 3: the Supreme Court, only lower courts. Is that really the case?
28:09
Speaker 4: No, it's not. And that's the most troubling part of
28:11
Speaker 4: Conrad's letter, because that view means that no justice, not
28:17
Speaker 4: only Thomas in this instance, is subject to referral by
28:22
Speaker 4: the Federal Judicial Conference. I think that conrad conclusion is indefensible. Certainly,
28:30
Speaker 4: it is not defended credibly, and that surprising in and
28:33
Speaker 4: of itself. Remember how we got here. There's a prelude
28:37
Speaker 4: to this, and for a long time there was no
28:40
Speaker 4: code of ethics for the Supreme Court at all, and
28:43
Speaker 4: then an adopted one in twenty three without an enforcement provision,
28:50
Speaker 4: and various observers thought, well, maybe the Judicial Conference would
28:56
Speaker 4: be the enforcer. Maybe there's some way to create or
29:00
Speaker 4: authority or jurisdiction and the Conference to enforce the new
29:04
Speaker 4: Supreme Court ethics code. But that never came to pass,
29:08
Speaker 4: and so we have in that code a document that
29:12
Speaker 4: is really aspirational only because a justice could violate it
29:16
Speaker 4: clearly and still not be subject to any kind of
29:20
Speaker 4: enforcement or sanction or repercussion. However, when we come to
29:25
Speaker 4: the financial disclosures, we're in a different category altogether, because
29:29
Speaker 4: Congress has said that the financial disclosure rules apply to
29:36
Speaker 4: all judicial officers, including the Supreme Court. So we have
29:41
Speaker 4: congressional authorization for other branches and agencies of government to
29:48
Speaker 4: view justices as within the financial disclosure obligations. And then
29:54
Speaker 4: Congress has also said in the Ethics and Government Debt
29:58
Speaker 4: that when any of certain listed actors have reasonable cause
30:04
Speaker 4: to believe that a judicial officer has willfully violated the
30:11
Speaker 4: financial disclosure requirements, that person shall it's mandatory, shall report
30:20
Speaker 4: the violation, or at least the reasonable cause to believe,
30:24
Speaker 4: to the Attorney General. And that includes the judicial conference
30:28
Speaker 4: a duty to report to the Attorney General when there's
30:31
Speaker 4: reasonable cause to believe there's a willful violation. Now that
30:35
Speaker 4: brings us to Thomas and his many receipts of bounty
30:41
Speaker 4: from others during the course of his presence on the
30:44
Speaker 4: Court and in reviewing the allegations of Senator Whitehouse and
30:51
Speaker 4: Representative Johnson, Mister Conrad. Judge Conrad, and remarkably never says
30:57
Speaker 4: that Thomas's conduct, has reviewed by the Conference across two years,
31:03
Speaker 4: does not reveal a reasonable cause to believe that he
31:08
Speaker 4: willfully violated the reporting obligations. It does not exonerate Thomas
31:14
Speaker 4: from that charge. I mean, that would have been hard enough,
31:18
Speaker 4: but it does not.
31:20
Speaker 3: Yes, So, Senator Sheldon Whitehouse said that the Judiciary's response
31:25
Speaker 3: contains a number of inconsistencies and strange claims and doesn't
31:30
Speaker 3: address whether there's reasonable cause to believe that Thomas wilfully
31:34
Speaker 3: broke the disclosure law.
31:37
Speaker 4: Rather, what Conrad says is, well, says three things. Well,
31:42
Speaker 4: it's all been taken care of them, and Thomas is
31:45
Speaker 4: in compliance. But he's not in compliance even apply from
31:48
Speaker 4: the trips and the personal hospitality, there are other things
31:52
Speaker 4: he did not report. The second, he says that anyway
31:57
Speaker 4: the reporting obligation can the Attorney General does not apply
32:01
Speaker 4: to justices, even though the two statutes were talking about
32:04
Speaker 4: applies to justices. And for that proposition, he says, well,
32:10
Speaker 4: one of the sentences in the Federal Code about reporting
32:14
Speaker 4: refers to circuit judges and reporting to the judicial council
32:20
Speaker 4: of a circuit or district judges. And given that sentence,
32:25
Speaker 4: it must be that the Congress did not intend for
32:28
Speaker 4: reporting of Supreme Court will for violations, which is a
32:31
Speaker 4: non sequitur. If a lower court judge is guilty or
32:36
Speaker 4: maybe guilty of will for violation, you report to this
32:40
Speaker 4: circuit council, says the statute. It doesn't say you don't
32:44
Speaker 4: report to the Attorney General. The Supreme Court justices are
32:47
Speaker 4: not subject to judicial council, so you can't report to
32:51
Speaker 4: the judicial council for a justice. But the sentences still
32:55
Speaker 4: remains that the conference shall report bought reasonable cause to
33:01
Speaker 4: believe willful violation. To Finally, Conrad seems to think that
33:06
Speaker 4: the council just doesn't have power because it was not authorized,
33:10
Speaker 4: specifically authorized in the statutes to report such findings of
33:15
Speaker 4: reasonable cause to believe there was a willful violation. Now
33:20
Speaker 4: this is a remarkable statement. The idea that a federal
33:24
Speaker 4: agency needs the approval of Congress to report that a
33:31
Speaker 4: federal official may have willfully violated a regulation is incomprehensible.
33:38
Speaker 4: You don't need congressional authorization. One would hope that any
33:45
Speaker 4: federal worker who has reason to believe that another federal
33:51
Speaker 4: workers is willfully violating a federal statute that they could
33:56
Speaker 4: report without going first to Congress and asking forced the
34:00
Speaker 4: civic authority to report. So the idea that Conrad feels
34:05
Speaker 4: that he is without power to report wrongdoing or a
34:09
Speaker 4: possible wrongdoing because Congress didn't tell him to is quite
34:14
Speaker 4: sad and troubling. It suggests that we may never get,
34:19
Speaker 4: even for statutes that specifically recognize justices as within their ambit,
34:25
Speaker 4: we may never get any kind of opportunity by an
34:31
Speaker 4: outside body to review their conduct with a view toward
34:36
Speaker 4: determining whether or not they behavior violated a law that
34:40
Speaker 4: Congress passed. This aggravates the situation, but it seems like
34:45
Speaker 4: there will be no place to go after this unless
34:47
Speaker 4: Congress legislates, which is unlikely.
34:50
Speaker 3: He also said that the request became moot when the
34:53
Speaker 3: Democrats asked the ag Merrick Garland to appoint a special
34:58
Speaker 3: counsel to investigate.
35:00
Speaker 4: Right and there's a problem there too, because the conference
35:04
Speaker 4: has spent two years looking into Thomas and perhaps Intulito.
35:08
Speaker 4: Presumably in those two years they have gathered a lot
35:11
Speaker 4: of information, information that they hope explains one of their
35:16
Speaker 4: grounds for not reporting Thomas, but that information may be
35:21
Speaker 4: valuable to the Attorney General. The Attorney General may get
35:24
Speaker 4: a letter from white House and Johnson's asking for an
35:27
Speaker 4: investigation or what have you. The white House and Johnson
35:31
Speaker 4: don't have the information that Conrad has, and Conrad's not
35:36
Speaker 4: sharing it because he says Congress didn't specifically authorize him
35:40
Speaker 4: to do that. And so while it is true that
35:44
Speaker 4: others can complain, they can't complain on the same factual record,
35:49
Speaker 4: the record that Conrad will have accumulated over two years.
35:53
Speaker 4: That could help in a decision whether or not the
35:56
Speaker 4: Attorney General should invoke the authority to see a civil
36:01
Speaker 4: remedy for wilful violation of the law.
36:05
Speaker 3: We're talking about decades of travel and gifts, etc. And
36:09
Speaker 3: he only has to report them. He's allowed to take them,
36:13
Speaker 3: but he just has.
36:13
Speaker 4: To report them. That's right. And you know, when people
36:17
Speaker 4: were talking about the enforcement of the new Supreme Court
36:20
Speaker 4: Ethics Code, behind that complaint was the hope that enforcement
36:26
Speaker 4: could lead to some kind of sanction, because if it cannot,
36:28
Speaker 4: what good is it. Even if the sanction is only
36:31
Speaker 4: a public document disagreeing with what the justice did or
36:34
Speaker 4: did not do. This is totally different. This is only reporting.
36:39
Speaker 4: No one's asking the Judicial conference to visit a penalty
36:42
Speaker 4: on Thomas or others who willfully failed to report. The
36:47
Speaker 4: penalty in the statute is in the authorization of the
36:52
Speaker 4: Attorney General to bring a civil or even a criminal
36:55
Speaker 4: action for willful failure to report, not a finding. That
37:00
Speaker 4: is Conrad doesn't have to make a finding that anyone
37:04
Speaker 4: violated the law. He just has to make a finding
37:08
Speaker 4: that he has reasonable cause to believe that there was
37:11
Speaker 4: a willful violation.
37:13
Speaker 3: So the referral for Thomas came from two Democrats in Congress.
37:18
Speaker 3: There was also a referral for Justice Katanji Brown Jackson
37:23
Speaker 3: from a conservative legal group for not reporting her husband's
37:27
Speaker 3: medical malpractice consultations.
37:30
Speaker 4: Yeah, this is remarkable because this is one instance, one instance,
37:36
Speaker 4: and just compare that to Thomas, one instance in which
37:40
Speaker 4: relatively knew justice failed to report a spouse's compensation and
37:46
Speaker 4: then corrected it. There's no parallel between the recidivist behavior
37:53
Speaker 4: of Thomas. We still don't know if the reporting that
37:57
Speaker 4: Thomas has done is complete. I think we know that
38:00
Speaker 4: it is not complete as regards certain things other than
38:03
Speaker 4: personal hospitality, so comparing Jackson to Thomas makes no sense.
38:09
Speaker 4: It's just a captive to say, well, your side does
38:12
Speaker 4: the same thing, which is ridiculous.
38:15
Speaker 3: Let me ask you about the Chief Justice's year end report,
38:19
Speaker 3: and he's calling criticism of judges and justices and protests
38:24
Speaker 3: outside justices houses intimidation of the judiciary.
38:30
Speaker 4: Well, it's certainly going to a justice' house is troubling.
38:34
Speaker 4: The family is their children are there. I think the
38:38
Speaker 4: federal judiciary has an interest in publicly criticizing ticketing or
38:44
Speaker 4: demonstrations before a justice's house, but certainly not in harsh
38:50
Speaker 4: criticism of a justices behavior. That's what it's all about.
38:53
Speaker 4: That comes with the territory and critics of a particular
38:57
Speaker 4: justice for his or her opinion who aggressively in print,
39:02
Speaker 4: for example, criticized that justice. That's what the petition clause
39:07
Speaker 4: of the First Amendment is all about.
39:10
Speaker 3: The Supreme Court, as you know, the latest Gallup poll
39:13
Speaker 3: is at an all time low. And I keep on
39:14
Speaker 3: saying every time his new pole all time low because
39:17
Speaker 3: he keeps getting lower and lower.
39:19
Speaker 4: Yeah, I mean, none of.
39:20
Speaker 3: This will help people to have more confidence in the court.
39:25
Speaker 4: No, but let me be an optimist for a second
39:27
Speaker 4: okay against my better judgment. The Three Court first stat
39:31
Speaker 4: in seventeen ninety. Justice Thomas came on the Court in
39:35
Speaker 4: the nineteen nineties, two hundred plus years later. Between seventeen
39:39
Speaker 4: ninety and nineteen ninety, we did not have a serious problem.
39:44
Speaker 4: Fordis is the most obvious one in the last seventy
39:48
Speaker 4: five years, and that was comparatively minor. Justice Fortis's behavior.
39:53
Speaker 4: Justice Douglas created a lot of waves, but also comparatively
39:58
Speaker 4: minor compared to what we have today. What we have
40:01
Speaker 4: today is ninety percent a result of the behavior of
40:05
Speaker 4: one man, Clarence Thomas and to a much lesser extent,
40:10
Speaker 4: Justice Alito. Both are in their seventies. Even if we
40:14
Speaker 4: do nothing, time will change the composition of the Court
40:18
Speaker 4: and they will no longer be on it. And so
40:21
Speaker 4: my optimistic wish is that once they're gone, and especially
40:26
Speaker 4: once Thomas is gone, will revert to the relatively quiescent
40:31
Speaker 4: era between seventeen ninety and nineteen ninety. That Thomas is
40:37
Speaker 4: a one man reputation destroyer for the Court. He seems
40:41
Speaker 4: to have no sense of responsibility and no sense of shame.
40:44
Speaker 4: But most of the problem the Court is facing now
40:47
Speaker 4: is a product of his behavior if we're talking about
40:50
Speaker 4: behavioral justices. Other reasons the Court is suffering is because
40:56
Speaker 4: of its decisions, most particularly the DBS decision, and not
41:01
Speaker 4: only there's no way to change that, that's inherent in
41:04
Speaker 4: the process. During the Warren era, the Court suffered reputational
41:10
Speaker 4: hit from the right because of the decisions Miranda and
41:14
Speaker 4: others they had the warrant Court adopted. That's their job.
41:19
Speaker 4: I mean, we may disagree with what gor Citro Kavanaugh believe,
41:23
Speaker 4: but they're doing their job. There's no reason to believe
41:26
Speaker 4: their conclusions in those cases are improper as their influence improperly.
41:34
Speaker 4: They're saying what they think. We may not like what
41:36
Speaker 4: they think, but that's what they're doing and it's what
41:39
Speaker 4: we want them to honestly do, although some might prefer
41:43
Speaker 4: that they reach a different result.
41:45
Speaker 3: Always a pleasure. Thanks so much. That's Professor Steven Gillers
41:49
Speaker 3: of NYU Law School, And that's it for this edition
41:52
Speaker 3: of the Bloomberg Law Show. Remember you can always get
41:55
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41:58
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42:02
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