Latest / Bloomberg Law / Weekend Law: Trump Faces Loss on Birthright Citizenship & Conversion Therapy Ban

Transcript

Weekend Law: Trump Faces Loss on Birthright Citizenship & Conversion Therapy Ban · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
0:08
Speaker 2: A landmark case before the Supreme Court is testing what
0:12
Speaker 2: it means to be an American, and the stakes couldn't
0:16
Speaker 2: be higher. The promise of citizenship for children born in
0:20
Speaker 2: the United States has been part of our collective understanding
0:23
Speaker 2: of the Fourteenth Amendment for more than a century, and
0:27
Speaker 2: during oral arguments, Justice Elena Kagan call the government's claim
0:31
Speaker 2: that our longstanding view of citizenship is wrong. Revision is
0:36
Speaker 2: history and a story.
0:38
Speaker 3: What do you think it should take to accept that
0:41
Speaker 3: story in terms of the magnitude of the evidence that
0:47
Speaker 3: we would need to see in order to accept this
0:52
Speaker 3: revisionist theory and in order to change what I think
0:55
Speaker 3: people have thought the rule was for more than a cent.
1:00
Speaker 2: In an unprecedented move for a sitting president, Trump attended
1:04
Speaker 2: the oral arguments and listened as Justice after Justice. Conservatives
1:10
Speaker 2: and liberals alike questioned whether his executive order ending birthright
1:14
Speaker 2: citizenship could be squared with the Constitution and federal law.
1:19
Speaker 2: Justice has called the government's arguments quirky and the precedents
1:24
Speaker 2: behind them obscure, and Chief Justice John Roberts dismissed Solicitor
1:29
Speaker 2: General John Sowers contention that the country faces a new
1:34
Speaker 2: world in which so called birth tourism is undercutting historic understandings.
1:40
Speaker 4: But of course we're in a new world now.
1:42
Speaker 5: Justice Leader pointed out to where eight billion people are
1:44
Speaker 5: one plane ride away from having a child as a
1:47
Speaker 5: US citizen. Well, it's a new world, it's the same constitution.
1:50
Speaker 2: And Justice's Katanji Brown, Jackson, Amy Coney, Barrett, and Neil
1:54
Speaker 2: Gorsuch looked at the practicalities howould the executive order works.
2:00
Speaker 2: Determining whether a newborn is a citizen of the United
2:03
Speaker 2: States would depend at least in part on how long
2:06
Speaker 2: parents intended to stay in the country.
2:09
Speaker 6: Because now you say your rule turns on whether the
2:12
Speaker 6: person intended to stay in the United States. And I
2:14
Speaker 6: think Justice Barrett brought this up. So we're bringing pregnant
2:17
Speaker 6: women in for depositions. What are we doing to figure
2:21
Speaker 6: this out? The thing about this is then you have
2:23
Speaker 6: to adjudicate if you're looking at parents, and if you're
2:26
Speaker 6: looking at parents domicile, then you have to adjudicate both
2:29
Speaker 6: residents and intent.
2:30
Speaker 7: To say, what if you don't know who the parents.
2:32
Speaker 8: Are, whose domicile matters? I mean, it's not the child, obviously,
2:38
Speaker 8: it's the parents. You'd have us focus on. And you know,
2:42
Speaker 8: what if is it the husband, is it the wife?
2:44
Speaker 8: What if they're unmarried, who's domicile?
2:46
Speaker 2: Every federal court that's considered Trump's executive order has ruled
2:51
Speaker 2: against it. My guest is David Cole, a professor at
2:54
Speaker 2: Georgetown Law and the former National Legal Director of the ACLU. David,
2:59
Speaker 2: you've argued before the Supreme Court. Do you think President
3:02
Speaker 2: Trump sitting in the gallery had an impact on any
3:05
Speaker 2: of the justices.
3:07
Speaker 1: I don't think the justices appreciated the President coming in
3:12
Speaker 1: and sitting in the court in the way that he did.
3:15
Speaker 1: It's never been done before. There's certainly no rule against it,
3:18
Speaker 1: but there is a norm of judicial independence, and there's
3:23
Speaker 1: the appearance of the boss coming in and watching his people,
3:29
Speaker 1: in particular the people he appointed, and making sure they
3:32
Speaker 1: do his bidding. That's just a bad look. It's a
3:35
Speaker 1: bad look for the president, it's a bad look for
3:38
Speaker 1: the court, it's a bad look for the country. So
3:40
Speaker 1: I very much doubt that they appreciated his presence. I
3:44
Speaker 1: don't think it changed their behavior. They conducted the argument
3:48
Speaker 1: in the exact way that you know, I would expect
3:50
Speaker 1: them to. I would say they rose above it. And
3:53
Speaker 1: of course he attended only to hear his side of
3:56
Speaker 1: the argument and left before hearing the other side of
3:59
Speaker 1: the argument, which is a fitting symbol of this president's
4:03
Speaker 1: complete disregard for anyone who disagrees with him, regardless of
4:08
Speaker 1: the merits of the matter.
4:09
Speaker 2: Let's turn to the arguments themselves. The language of the
4:13
Speaker 2: fourteenth Amendment is, all persons born or naturalized in the
4:18
Speaker 2: United States and subject to the jurisdiction thereof are citizens
4:23
Speaker 2: of the United States. The administration's argument is that to
4:27
Speaker 2: be subject to the jurisdiction, a person has to have
4:30
Speaker 2: a direct and immediate allegiance to the United States and
4:34
Speaker 2: have established domicile here, and a lot of the justices
4:38
Speaker 2: asked the Solicitor General basically, you know where are you
4:41
Speaker 2: getting that from?
4:43
Speaker 1: Exactly. Their argument is, you have to establish domicile, and
4:47
Speaker 1: what domicile means is an intent to remain permanently and
4:52
Speaker 1: the legal right to do so. And as a result,
4:55
Speaker 1: that would extend birthright citizenship only to people who are
5:01
Speaker 1: born of lawful permanent residents, not to the millions of
5:06
Speaker 1: people who are born to folks who are here on
5:09
Speaker 1: temporary visas, workers visas, student visas, visitors visas, and not
5:15
Speaker 1: to the millions of people who are here unlawfully. So
5:18
Speaker 1: that's their argument. It is not in the text. Domicile
5:22
Speaker 1: is not in the text. They relied heavily on the
5:25
Speaker 1: fact that in the Supreme Court decision Wang kim ark
5:29
Speaker 1: in eighteen ninety eight that addressed whether the child of
5:34
Speaker 1: Chinese immigrants was a citizen because he was born here,
5:39
Speaker 1: the court described the parents as lawfully present domiciled Chinese aliens.
5:48
Speaker 1: And so he says, well, that's the holding of the case.
5:51
Speaker 1: It only applies to people who are domiciled here, shouldn't
5:54
Speaker 1: apply any anymore broadly. But the case itself does not
5:58
Speaker 1: actually say that domicile is a requirement. In fact, when
6:03
Speaker 1: it addresses domicile, it expressly says that people who are
6:07
Speaker 1: born here are subject to our jurisdiction, meaning they have
6:11
Speaker 1: to follow our laws, whether they are here temporarily or
6:15
Speaker 1: for a long term, independent of any intention to reside
6:19
Speaker 1: here or domicile here. So the court actually rejected this
6:23
Speaker 1: very argument. But because the parents in that case happened
6:27
Speaker 1: to be domiciled, the United States is kind of grasping
6:31
Speaker 1: for straws, I think, and trying to make that a principle.
6:34
Speaker 2: And yet at least five justices asked questions about domicile.
6:39
Speaker 2: The Chief said, isn't it at least something to be
6:42
Speaker 2: concerned about? And those were the questions the ACL you
6:46
Speaker 2: lawyers seemed to be struggling with a bit.
6:48
Speaker 1: Well, I don't know that you were struggling with it.
6:50
Speaker 1: I think what she said was no. In fact, when
6:52
Speaker 1: you read the decision onue kim Ark, what it says
6:56
Speaker 1: is that subject to the jurisdiction was shorthand we are
7:01
Speaker 1: adopting the law that applies at the time in the country,
7:07
Speaker 1: which was the English common law, which was if you
7:10
Speaker 1: were born on our soil, you were a citizen, with
7:14
Speaker 1: very specific exceptions children of foreign ambassadors, children born in
7:21
Speaker 1: land that is occupied by a foreign power, and children
7:26
Speaker 1: of Native Americans on tribal land. And in each of
7:31
Speaker 1: those instances you are not subject to the jurisdiction of
7:34
Speaker 1: the United States, because there's a fiction that sort of
7:37
Speaker 1: even though you're physically here, you are imediately subject to
7:41
Speaker 1: the jurisdiction of the country that you're the ambassador for,
7:45
Speaker 1: or the country that occupies the territory or the American
7:50
Speaker 1: tribe that occupies the tribal land. Those were the only exceptions.
7:55
Speaker 1: That's what the Supreme Court held in eighteen ninety eight,
7:59
Speaker 1: relying on many many authorities that had identified again and
8:03
Speaker 1: again that those are the only exceptions, and that none
8:07
Speaker 1: of those exceptions turned on domicile.
8:10
Speaker 2: Did you think that any of the justices were buying
8:14
Speaker 2: into the government's argument.
8:16
Speaker 1: Justice Alito, without question, probably Justice Thomas as well. I
8:22
Speaker 1: think Justice Barrett very uncomfortable with this argument. I mean,
8:26
Speaker 1: she said, what about what about the children of slaves?
8:29
Speaker 1: The whole point of this fourteenth Amendment was to make
8:34
Speaker 1: the children of slaves citizens and to make it clear
8:38
Speaker 1: that they are citizens if they are born here. Well,
8:41
Speaker 1: slaves came here involuntarily. They were brought here against their will,
8:47
Speaker 1: she says, you know, if anything, they wanted to get
8:49
Speaker 1: out of here as quickly as they could. And yet
8:52
Speaker 1: the whole point of this was that their children, because
8:54
Speaker 1: they were born here, are citizens. And so that's directly
8:58
Speaker 1: contrary to the domicile argument. And then I think a
9:01
Speaker 1: number of justices also asked about the difficulty of determining domicile.
9:06
Speaker 1: What is domicile? How do you determine it? So I
9:10
Speaker 1: count six votes coming out of there that seem quite
9:15
Speaker 1: clearly on the side of the ACLU, and possibly seven.
9:19
Speaker 1: I think Justice Kavanaugh a little bit harder to read,
9:22
Speaker 1: but I think you're likely to see a six to
9:24
Speaker 1: three or seven to two vote. And in part it's
9:27
Speaker 1: because this domicile theory number one was rejected in Juan
9:32
Speaker 1: kim Ark. They specifically said, you are subject to the
9:35
Speaker 1: jurisdiction and therefore a citizen, even if your parents are
9:39
Speaker 1: here only temporarily and without any domicile. And because the
9:44
Speaker 1: sort of related concept of allegiance which the Solicitor General
9:50
Speaker 1: was relying upon proves far too much, and Justice Alito's
9:55
Speaker 1: questions to the ACLU attorney Sicilia Wong made this clear.
9:59
Speaker 1: He says, what about an Iranian who comes here illegally
10:03
Speaker 1: and has a child. That child is an Iranian citizen
10:07
Speaker 1: and he has to fight, you know, in the Iranian
10:10
Speaker 1: army if he ever goes back to Iran. And yet
10:13
Speaker 1: you're saying he's subject to the jurisdiction in the United States.
10:16
Speaker 1: Isn't he subject to the jurisdiction of Iran? And the
10:20
Speaker 1: answer to that, which both Sicilia Wong gave and Justice
10:24
Speaker 1: so tomayor underscored, is that argument would suggest that no
10:29
Speaker 1: one who is a foreign national and has a child here,
10:33
Speaker 1: none of their kids are citizens, because all foreign nationals
10:38
Speaker 1: have allegiance in that sense to the country of their citizenship.
10:42
Speaker 1: If you're a Mexican and you are here, even if
10:45
Speaker 1: you're a lawful permanent resident, you are a citizen of Mexico.
10:48
Speaker 1: You're not a citizen in the United States. And so
10:51
Speaker 1: the extent you have, you know, allegiance, you have allegiance
10:54
Speaker 1: to Mexico, not to this country. And yet even the
10:57
Speaker 1: government does not argue that lawful permit a residents children
11:01
Speaker 1: should not be recognized as citizens, So their reliance on
11:05
Speaker 1: allegiance doesn't explain their own theory, and their reliance on
11:10
Speaker 1: domicile is contrary to the English common law, the American
11:14
Speaker 1: common law, and the decisive Supreme Court case on the
11:18
Speaker 1: matter Long kim Ark. To overturn all of that would
11:22
Speaker 1: be a really remarkable upheaval of sort of the way
11:26
Speaker 1: we have long understood citizenship to operate in this country.
11:30
Speaker 1: And I heard questioning of the scope of the ACLU's position,
11:35
Speaker 1: But I did not hear a lot of support for
11:37
Speaker 1: the notion that the Court should change the rules that
11:40
Speaker 1: govern the citizenship of millions of people in this country.
11:44
Speaker 2: Stay with me, David, coming up next, we'll discuss the
11:47
Speaker 2: implications of a decision made on statutory grounds rather than constitutional.
11:52
Speaker 2: I'm June Grosso and this is Bloomberg.
11:58
Speaker 4: Right ship Ah wait all right?
12:05
Speaker 2: As the Justice has heard arguments on Wednesday about President
12:09
Speaker 2: Trump's attempt to end birthright citizenship, protesters rallied outside the building.
12:15
Speaker 2: Among them was Norman Wang, a seventy five year old
12:18
Speaker 2: retired carpenter. It was his great grandfather who was born
12:23
Speaker 2: in San Francisco to Chinese immigrants, but was prevented from
12:28
Speaker 2: re entering the country after a trip under the Chinese
12:31
Speaker 2: Exclusion Act. His case, United States versus Wang kim Ark,
12:37
Speaker 2: became the landmark ruling that enshrined birthright citizenship in our laws,
12:42
Speaker 2: establishing in eighteen ninety eight that the Fourteenth Amendment guarantees
12:47
Speaker 2: citizenship to virtually everyone born on US soil. But Norman
12:52
Speaker 2: Wang says he's worried that the principle established in his
12:56
Speaker 2: grandfather's case is in jeopardy.
13:00
Speaker 8: Struggle that all of us need to participate because this
13:04
Speaker 8: is for the soul of our country.
13:06
Speaker 2: Wong may not have to worry. During the oral arguments,
13:10
Speaker 2: a majority of Supreme Court justices from across the ideological
13:15
Speaker 2: spectrum expressed skepticism about the Trump administration's argument that children
13:20
Speaker 2: of non citizens are not subject to the jurisdiction of
13:24
Speaker 2: the United States under the fourteenth Amendment, and therefore are
13:28
Speaker 2: not entitled to birthright citizenship. It was telling that the
13:32
Speaker 2: Chief Justice found the legal basis for the government's position
13:36
Speaker 2: questionable or quirky, as he put it.
13:40
Speaker 5: You obviously put a lot of weight on subject to
13:42
Speaker 5: the jurisdiction thereof, But the examples you give to support
13:46
Speaker 5: that strike me as very quirky. You know, children of ambassadors,
13:51
Speaker 5: children of enemies during a hostile invasion, children on warships,
13:56
Speaker 5: and then you expand it to the whole class of
14:01
Speaker 5: illegal aliens are here in the country. I'm not quite
14:05
Speaker 5: sure how you can get to that big group from
14:07
Speaker 5: such tiny and sort of idiosyncratic examples.
14:11
Speaker 2: Well, just as Brett Kavanaugh, a Trump appointee, brought out
14:15
Speaker 2: the fact that in federal statutes enacted in nineteen forty,
14:19
Speaker 2: in nineteen fifty two, Congress used the identical language, suggesting
14:25
Speaker 2: it was endorsing the long held view of birthright citizenship.
14:29
Speaker 9: By the time of the nineteen forty and nineteen fifty
14:32
Speaker 9: two congressional actions, where Congress repeats subject to the jurisdiction
14:40
Speaker 9: thereof given Juan kim Ark, one might have expected Congress
14:45
Speaker 9: to use a different phrase if it wanted to try
14:49
Speaker 9: to disagree with Wan kim Ark on what the scope
14:54
Speaker 9: of birthright citizenship or the scope of citizenship should be.
14:59
Speaker 9: And yet Congress repeats that same language, knowing what the
15:03
Speaker 9: interpretation had been.
15:05
Speaker 2: At the end of two hours of oral arguments, it
15:08
Speaker 2: seemed that there was a majority of justices who would
15:12
Speaker 2: vote against President Trump's attempt to end birthright citizenship by
15:16
Speaker 2: executive order, although there's never certainty until the decision comes out.
15:21
Speaker 2: I've been talking to Georgetown law professor David Cole, the
15:25
Speaker 2: former National Legal Director of the ACLU. David, it was
15:29
Speaker 2: striking that several justices questioned just how this executive order
15:34
Speaker 2: would work in practice, and I think Justice Katanji Brown
15:38
Speaker 2: Jackson asked the most concrete questions.
15:42
Speaker 4: How does this work?
15:43
Speaker 6: Are you suggesting that when a baby is born people
15:47
Speaker 6: have to have documents, present documents. Is this happening in
15:52
Speaker 6: the delivery room? How are we determining when or whether
15:56
Speaker 6: a newborn child is a citizen of the United States under.
16:00
Speaker 2: Did the government have an answer for how they would
16:02
Speaker 2: work this?
16:04
Speaker 1: No, they do not, And that's one of the reasons
16:07
Speaker 1: that domicile is such a bad test. And I think,
16:11
Speaker 1: you know, was rejected in wankim Ark and has not
16:14
Speaker 1: been the test for the last one hundred plus years,
16:18
Speaker 1: and I think would not be a workable scheme. So
16:21
Speaker 1: I mean, I think what the challengers have going for
16:23
Speaker 1: them is the text of the Constitution, the history of
16:28
Speaker 1: English common law and American common law, the Supreme Court
16:32
Speaker 1: decision on point, and the fact that ever since there's
16:37
Speaker 1: been a widespread consensus that people who are born here
16:42
Speaker 1: subject to these very limited exceptions, are citizens. And to
16:46
Speaker 1: sort of throw that into question, not just going forward,
16:50
Speaker 1: but on the government's theory, they are only asking for
16:54
Speaker 1: prospective relief, meaning it would only apply to people who
16:56
Speaker 1: are born after the Court's decision. But that's because that's
17:00
Speaker 1: what the executive word does. But their theory is that
17:03
Speaker 1: unless you were born of a permanent lawful to resident
17:06
Speaker 1: you are not a citizen. That would call into the
17:08
Speaker 1: question the citizenship of millions of people here, And the
17:12
Speaker 1: next day Trump could issue a retroactive executive order and
17:16
Speaker 1: call all of their citizenship into questions. So again, I
17:19
Speaker 1: don't know, And you can never be confident coming out
17:22
Speaker 1: of an argument most of the time, you can't be
17:24
Speaker 1: confident of which way they're going to rule. But it
17:27
Speaker 1: would be such a kind of an earthquake in terms
17:30
Speaker 1: of how we understand citizenship in this country. For the
17:35
Speaker 1: Court to suddenly say, you know, millions of people here,
17:39
Speaker 1: if they're citizens, their citizens by mistake, and no one's
17:43
Speaker 1: foreign national kids are going to be a citizen going
17:45
Speaker 1: forward unless you're a Green card holder. I think that's very,
17:49
Speaker 1: very disruptive, And I just don't see. There's no sort
17:51
Speaker 1: of line of cases that leads us in that direction.
17:55
Speaker 1: There's no sort of strong political movement that has been
17:59
Speaker 1: arguing for that. It's a kind of wacko position. That's
18:03
Speaker 1: a technical term that the president that the President has
18:07
Speaker 1: been advancing. You know, it's consistent with a lot of
18:10
Speaker 1: his anti immigrant views, but it just doesn't have legal,
18:15
Speaker 1: any legal foundation, And for the court to kind of
18:19
Speaker 1: impose that of the country would be quite remarkable. And again,
18:22
Speaker 1: with the exception of Alito and Thomas, I don't think
18:25
Speaker 1: the Trump administration could walk out of that argument confident
18:28
Speaker 1: of anyone's vote other than those two.
18:31
Speaker 2: Just as Kavanaugh asked, why would we address the constitutional
18:35
Speaker 2: issue when our usual practice is to resolve things on
18:39
Speaker 2: statutory grounds rather than constitutional grounds. Will you explain what
18:44
Speaker 2: he was getting at there?
18:46
Speaker 1: Yes, So the case actually presents two questions. Does the
18:50
Speaker 1: Constitution forbid the executive order denying birth right citizenship? And
18:55
Speaker 1: then does a statute that Congress passed in nineteen forty
18:58
Speaker 1: and then re enacted in nineteen fifty two preclude the
19:02
Speaker 1: executive order on birth right citizenship? The statute uses the
19:06
Speaker 1: exact same terms that the Constitution does. But when the
19:11
Speaker 1: statute was adopted in nineteen forty and then again in
19:14
Speaker 1: nineteen fifty two, there was no dispute that persons born
19:19
Speaker 1: here are citizens. So if you're asking about the original
19:23
Speaker 1: meaning of the Fourteenth Amendment, you know there's evidence going
19:28
Speaker 1: both ways. The sg cited some evidence, the ACLU attorney
19:32
Speaker 1: excited other evidence. Ultimately, in wankim Ark, the Supreme Court
19:37
Speaker 1: resolved that dispute but by the time Congress is passing
19:41
Speaker 1: statutes in nineteen forty, in nineteen fifty two, everybody understood
19:45
Speaker 1: this is what it means. You know, if you're born here,
19:47
Speaker 1: you're a citizen. So even if we're not clear about
19:50
Speaker 1: the Constitution, surely we know what Congress meant when it
19:53
Speaker 1: passed this statute. Therefore, the Court could decide the question
19:57
Speaker 1: only on statutory ground, leave the constitutional question unresolved, and
20:03
Speaker 1: that's a more minimalist decision, and I think Kavanaugh was
20:07
Speaker 1: sort of exploring that as a possibility. The difference between
20:11
Speaker 1: deciding it on a statutory ground and deciding on a
20:14
Speaker 1: constitutional ground is that if you decided it on the
20:16
Speaker 1: statutory ground, then Congress the very next day could pass
20:21
Speaker 1: a statute that says no children of illegal immigrants should
20:27
Speaker 1: be citizens, and then that would go back up to
20:30
Speaker 1: the Supreme Court on the question of whether that's consistent
20:33
Speaker 1: with the Constitution. So, you know, it leaves open room
20:38
Speaker 1: for Congress to weigh in and express its views. If
20:43
Speaker 1: you decide the case only on statutory grounds, and as possible,
20:48
Speaker 1: the Court does that, it's the narrowest way to resolve
20:51
Speaker 1: the case. I think, given that the Supreme Court in
20:54
Speaker 1: Huang Kim ark already decided the constitutional question to sort
20:58
Speaker 1: of decide only the statute question would raise questions at
21:02
Speaker 1: least about this citizenship of a whole lot of people
21:06
Speaker 1: here and invite sort of political meddling with you know,
21:10
Speaker 1: who's a citizen and who's not. And the whole purpose
21:13
Speaker 1: of the constitutional amendment was to disable the political branches
21:18
Speaker 1: from defining away citizenship as they had done with respect
21:22
Speaker 1: to the children of slaves.
21:24
Speaker 2: Every court that reviewed Trump's executive order ruled against it.
21:28
Speaker 2: Senior Seattle judge John Kunauer called it blatantly unconstitutional and
21:33
Speaker 2: said it boggles my mind that a lawyer could argue
21:36
Speaker 2: to the contrary. And this was looked at as a
21:39
Speaker 2: sort of fringe theory when the executive order came out.
21:43
Speaker 2: So why do you think the Supreme Court felt the
21:45
Speaker 2: need to take the case.
21:47
Speaker 1: Well, I think there's a sense that it's an important question.
21:52
Speaker 1: And generally speaking, I think when the president has acted
21:56
Speaker 1: in a national way and lower core have declared his
22:01
Speaker 1: actions unconstitutional, there's almost a presumption that the Supreme Court
22:06
Speaker 1: should hear the case, that the president deserves to have
22:10
Speaker 1: his actions reviewed by the Supreme Court, and not just
22:15
Speaker 1: invalidated by lower courts without the Supreme Court even weighing
22:19
Speaker 1: in the same presumption operates with respect to decisions that
22:22
Speaker 1: declare statutes unconstitutional. Even where there's no disagreement among the
22:27
Speaker 1: lower courts that a statute's unconstitutional, the Supreme Court will
22:30
Speaker 1: almost always take that case up because they feel they
22:34
Speaker 1: owe it to their coequal branch of government. And I
22:37
Speaker 1: think that's the case here as well.
22:40
Speaker 2: This case is another test of Trump's assertions of executive
22:45
Speaker 2: power that defy long standing precedent, and this Court's conservative
22:50
Speaker 2: majority has largely ruled in Trump's favor until it struck
22:55
Speaker 2: down his global tariffs, and this could be the second
22:58
Speaker 2: major defeat for him at the Court, in the first
23:02
Speaker 2: immigration related policy to reach the Court for a final ruling.
23:07
Speaker 2: Do you think the tide is turning a bit?
23:09
Speaker 1: You know, at the end of this term, I think
23:10
Speaker 1: you're going to see the Supreme Court having rejected his
23:13
Speaker 1: tariff policy, rejected his birthright decisions of policy, rejected his
23:17
Speaker 1: effort to try to take control of the Federal Reserve Board.
23:20
Speaker 1: Those are significant decisions, and I think if they do
23:23
Speaker 1: come out, they show that even if the Court is
23:26
Speaker 1: very conservative even if Trump is appointed three of their justices.
23:30
Speaker 1: They are an important check when they are doing their job.
23:34
Speaker 1: They are an important check on executive overreach.
23:37
Speaker 2: We will find out the answer definitively by the end
23:40
Speaker 2: of June. Thanks for spending so much time with me, David.
23:44
Speaker 2: That's Professor David Cole of Georgetown Law. Coming up next
23:48
Speaker 2: on the Bloomberg Law Show. The Supreme Court ruled against
23:51
Speaker 2: Colorado's ban on conversion therapy for LGBTQ minors this week.
23:57
Speaker 2: It's a decision that will affect laws in more than
24:00
Speaker 2: half the states. I'm June Grosso and you're listening to Bloomberg.
24:05
Speaker 2: This week, the Supreme Court ruled against Colorado's law banning
24:10
Speaker 2: conversion therapy for LGBTQ minors. In an eight to one ruling,
24:15
Speaker 2: The justices sided with a Christian counselor who says she
24:19
Speaker 2: has a constitutional right to engage in talk therapy to
24:23
Speaker 2: try to change a child's sexual orientation or gender identity.
24:28
Speaker 2: The ruling itself came as no surprise after the oral
24:31
Speaker 2: arguments were the conservative justices like Chief Justice John Roberts
24:36
Speaker 2: and Justice Samuel Alito, made their positions fairly clear.
24:41
Speaker 5: In other words, just because they're engaged in conduct doesn't
24:46
Speaker 5: mean that their words aren't protected.
24:48
Speaker 8: Looks like blatant viewpoint discrimination.
24:51
Speaker 2: Liberal Justice Katanji Brown Jackson was the only dissenter. The
24:56
Speaker 2: ruling cast doubt on similar laws in more than half
24:59
Speaker 2: the states. My guest is Columbia Law School professor Suzanne Goldberg.
25:05
Speaker 2: She's the director of the Sexuality and Gender Law Clinic.
25:08
Speaker 2: Conversion therapy is rejected by every major medical and mental
25:13
Speaker 2: health organization, Yet the Supreme Court, in this eight to
25:16
Speaker 2: one decision, finds that Colorado's ban is a violation of
25:21
Speaker 2: free speech rights. Can you explain their reasoning?
25:25
Speaker 7: First, I want to affirm what you just said that
25:28
Speaker 7: every major medical association says this kind of therapy to
25:31
Speaker 7: change somebody's sexual orientation or gender identity is harmful, especially
25:36
Speaker 7: to young people. And so the court says, even though
25:40
Speaker 7: that may be the case, Colorado cannot regulate what talk
25:45
Speaker 7: therapists say to their young patients because those therapists have
25:50
Speaker 7: a First Amendment free speech right. In other words, the
25:53
Speaker 7: government of Colorado cannot, through regulating provision of medical care
25:58
Speaker 7: or healthcare, say you can't say these things, even though
26:01
Speaker 7: we know and there's evidence that they're harmful.
26:03
Speaker 2: The Age of Colorado defended the law, saying states have
26:07
Speaker 2: long regulated medical practices, including treatments carried out through speech,
26:12
Speaker 2: to protect patients from substandard care. So why doesn't this
26:16
Speaker 2: law fit under the state regulating mental health professionals.
26:21
Speaker 7: So the court says, this is speech. It's pure speech,
26:26
Speaker 7: and under our constitutional doctrine, whenever the government regulates speech,
26:31
Speaker 7: the Court will impose its very highest level of review,
26:34
Speaker 7: its most skeptical scrutiny. And it says in this case,
26:38
Speaker 7: the lower court made a mistake by applying a lower
26:40
Speaker 7: level of review and treating this as regular medical regulation.
26:43
Speaker 7: And Katanji Barm Jackson, in her dissent says, yes, this
26:48
Speaker 7: is actually medical regulation. This is totally within the balance
26:52
Speaker 7: of what a state can do to protect patients against
26:55
Speaker 7: substandard care. It says, though the two sides are really
26:58
Speaker 7: talking past each other, and one of the concerns is
27:01
Speaker 7: how will this interfere with the state's ability to protect
27:05
Speaker 7: patients from what healthcare providers have to say to them.
27:09
Speaker 2: Yeah, the American Psychological Association has said it's deeply concerned
27:14
Speaker 2: about the ruling. Now, I don't think it came as
27:17
Speaker 2: any surprise that the six conservatives voted against the law,
27:21
Speaker 2: But it was surprising to me that the two liberal
27:24
Speaker 2: justices Sonya so To Mayor and Elaina Kagan voted against
27:30
Speaker 2: the law. How did they explain that?
27:32
Speaker 7: In the concurrence they take the same position that this
27:37
Speaker 7: is regulation of speech, and its regulation of speech based
27:41
Speaker 7: on the viewpoint of the speaker. Meaning a speaker can
27:45
Speaker 7: say I affirm that your LGBT, whatever the young person is.
27:51
Speaker 7: But the speaker the therapist cannot say, I don't affirm that,
27:55
Speaker 7: and you should change. And so that is Justice Kagan writes,
28:00
Speaker 7: viewpoint discrimination. And the Court has long subjected viewpoint discrimination
28:05
Speaker 7: to its most skeptical kind of scrutiny. That said, there
28:09
Speaker 7: are many things that the state presumably can regulate and
28:14
Speaker 7: prohibit a medical provider from saying to a patient. One
28:17
Speaker 7: of those examples is, you know, a state should be
28:20
Speaker 7: able to prohibit a provider from encouraging a suicidal patient
28:24
Speaker 7: to take their own life.
28:25
Speaker 4: That is also speech.
28:27
Speaker 7: The Court doesn't wrestle with that, neither the majority nor
28:31
Speaker 7: the concurring opinion of Justice Kagan.
28:33
Speaker 2: Justice Jackson felt so strongly that she read a summary
28:36
Speaker 2: of her opinion from the bench to emphasize her objection here,
28:40
Speaker 2: but it's often the three liberal justices who are in
28:43
Speaker 2: the dissent in cases like this involving transgender rights.
28:48
Speaker 7: This is a difficult case in the sense.
28:51
Speaker 4: That it is government regulation of speech.
28:54
Speaker 7: All nine of them agree on that. Justice Jackson says, yes,
28:59
Speaker 7: it's regulation of speech, but incidental to regulation of healthcare provision.
29:04
Speaker 7: Justice is Kagan and so do mayor stay with the majority,
29:09
Speaker 7: making this an eight to one ruling. Again, I think
29:11
Speaker 7: they try to pull back a little bit from some
29:13
Speaker 7: of the majorities full on, we can never regulate speech,
29:18
Speaker 7: and they suggest that this is quite a narrow ruling,
29:21
Speaker 7: but I think we'll have to see. I mean, I
29:23
Speaker 7: do think there are always concerns when allowing government to
29:26
Speaker 7: regulate speech that the government will regulate too much and
29:29
Speaker 7: suppress speech. And that is clearly something that Justice Kagan
29:34
Speaker 7: is attuned to as well as the majority, But so
29:37
Speaker 7: is Justice Jackson. They just see it differently.
29:39
Speaker 2: Did the majority deal with the fact that conversion therapy
29:44
Speaker 2: is opposed by every major medical organization and studies have
29:49
Speaker 2: linked it to depression, post dramatic stress, and higher rates
29:54
Speaker 2: of suicide.
29:55
Speaker 7: So the majority says that's what these medical associations think now.
30:00
Speaker 7: But the government is not allowed to prescribe an orthodoxy
30:04
Speaker 7: of views. And it's standard again in First Amendment, to
30:07
Speaker 7: say that the reason we are so protective of speech
30:10
Speaker 7: is to allow for the contestation of ideas, to allow
30:13
Speaker 7: that maybe at one point our views are mistaken and
30:16
Speaker 7: we want to change them. And they make the point that, well,
30:19
Speaker 7: you know, some years ago states might have said you
30:22
Speaker 7: cannot support a young person who says there lesbian or gay,
30:26
Speaker 7: or bisexual or transgender. You have to tell them to change.
30:30
Speaker 7: And so the majority says, you know, that could happen.
30:32
Speaker 7: We can't allow any of this. That said, there remains
30:36
Speaker 7: this question whether governments can protect young patients who are
30:43
Speaker 7: facing a demonstrable risk empirically validated if this kind of
30:48
Speaker 7: therapy is used on them. And so it seems to
30:52
Speaker 7: me the majority does not actually wrestle fully.
30:55
Speaker 4: With that question.
30:56
Speaker 2: And does this decision put similar bands in other states
31:01
Speaker 2: in jeopardy?
31:02
Speaker 7: Of course, more than half the states in this country
31:05
Speaker 7: have this kind.
31:06
Speaker 4: Of law or similar laws.
31:07
Speaker 7: Some of them are worded differently, so they may be
31:10
Speaker 7: evaluated somewhat differently. And it's important to also know that
31:14
Speaker 7: virtually all of these laws were passed with bipartisan support.
31:17
Speaker 7: The evidence isn't in question here from any major or
31:23
Speaker 7: nonfringe analyst of the data. What's also important to know
31:29
Speaker 7: is that.
31:29
Speaker 4: This ruling, strong as.
31:31
Speaker 7: It is in favor of the therapist who says she
31:34
Speaker 7: might want to provide this kind of therapy, does not
31:37
Speaker 7: say conversion therapy is good. It does not say conversion
31:41
Speaker 7: therapy is helpful to patients. It doesn't disagree with the
31:46
Speaker 7: Medical Association saying conversion therapy is harmful, and so young
31:50
Speaker 7: people who suffer as a result of conversion therapy can
31:55
Speaker 7: still file medical malpractice lawsuits and consumer fraud lawsuits and
32:00
Speaker 7: obtain a remedy. What states have been trying to do
32:03
Speaker 7: with these laws is prevent the harm in the first place,
32:06
Speaker 7: and the Supreme Court has just taken away state's capacity
32:10
Speaker 7: to do that in many respects.
32:12
Speaker 2: In this case, Colorado hasn't sought to enforce this law,
32:16
Speaker 2: and it sort of reminds me of the Supreme Court
32:18
Speaker 2: case where the web designer, also in Colorado said she
32:22
Speaker 2: didn't want to design for same sex couples, and yet
32:27
Speaker 2: no same sex couple had ever asked her to do
32:29
Speaker 2: a web design, So why is the Supreme Court taking
32:32
Speaker 2: these cases where no one's been injured.
32:35
Speaker 7: There are at least two responses to your rise question.
32:40
Speaker 7: The first is that when the First Amendment is an issue,
32:44
Speaker 7: when people's free speech rights might be chilled, which was
32:47
Speaker 7: the argument here, the Court is more willing to take
32:51
Speaker 7: a case that is hypothetical.
32:54
Speaker 4: As you just said, right, Colorado.
32:55
Speaker 7: Hasn't enforced the law, She hasn't been in any trouble
32:59
Speaker 7: with the law.
33:00
Speaker 4: So this is really, you.
33:01
Speaker 7: Know, a step outside of that kind of hypothetical we
33:04
Speaker 7: might offer in a law school classroom.
33:05
Speaker 4: It's not a real case yet.
33:07
Speaker 7: But when somebody makes an argument that their speech is
33:11
Speaker 7: being chilled by the government regulation, that kind of argument
33:15
Speaker 7: is typically allowed to go forward for good reason. Right,
33:18
Speaker 7: you know, government can chill speech, and we don't want
33:21
Speaker 7: people to have to wait to face criminal punishment or
33:24
Speaker 7: fines before they engage in their speech. There's a second
33:27
Speaker 7: point though, too, to your question, like why are people
33:31
Speaker 7: bringing cases when they haven't not only not gotten in trouble,
33:35
Speaker 7: they haven't even in the case of the web design
33:37
Speaker 7: or offered the services, and neither did ms Childs. And
33:41
Speaker 7: there I think we can see that this is part
33:43
Speaker 7: of a broader agenda on the part of legal organizations
33:47
Speaker 7: to find plaintiffs who are willing to make these claims
33:50
Speaker 7: with a goal of pushing the law in a direction
33:54
Speaker 7: that really restricts the kind of legal protections for LGBT people.
34:00
Speaker 2: Yeah, the therapist was represented by the Alliance Defending Freedom,
34:05
Speaker 2: a Christian legal group that has been behind some of
34:08
Speaker 2: these high profile cases, including overturning the constitutional right to abortion. Suzanne,
34:14
Speaker 2: It's been one loss after the other for transgender rights
34:18
Speaker 2: at the Supreme Court. It upheld Tennessee's ban on gender
34:22
Speaker 2: affirming care for transgender miners. It allowed Trump to fire
34:28
Speaker 2: transgender members of the military and to require new passports
34:32
Speaker 2: to reflect the sex on the holder's birth certificate. So basically,
34:37
Speaker 2: no wins, only losses.
34:39
Speaker 7: I think it certainly does have a relentless feel. And
34:43
Speaker 7: when you couple this most recent series of rulings with
34:46
Speaker 7: the more than a thousand bills that have been introduced
34:49
Speaker 7: in state legislatures around the country to restrict transgender people
34:53
Speaker 7: in the daily activities of living and identity documents like
34:57
Speaker 7: a driver's license that looks like you, or access to
35:01
Speaker 7: a bathroom, or ability to get a passport that reflects identity.
35:06
Speaker 7: There are so many restrictions. Many of these cutbacks on
35:12
Speaker 7: protection for transgender people are coming in the guise of
35:16
Speaker 7: free speech or protecting the religious freedom. But it's a
35:19
Speaker 7: very challenging time.
35:20
Speaker 2: Home, and a decision yet to come in the case
35:23
Speaker 2: of transgender women and girls being able to play on
35:26
Speaker 2: female athletic teams. Thanks for joining me, Suzanne. That's Professor
35:31
Speaker 2: Suzanne Goldberg of Columbia Law School. In other legal news
35:35
Speaker 2: this week, Pam Bondy is out as Attorney General, ending
35:40
Speaker 2: its tumultuous tenure as the nation's top law enforcement official
35:44
Speaker 2: after stumbling in her efforts to carry out President Trump's agenda.
35:48
Speaker 2: Trump announced her departure in a social media post and
35:52
Speaker 2: named Deputy Attorney General Todd Blanche, one of his former
35:55
Speaker 2: defense lawyers, as the acting Attorney General. Bondi oversaw the
36:00
Speaker 2: unprecedented transformation of the Justice Department into an arm of
36:05
Speaker 2: the White House and the large scale firings of career employees.
36:10
Speaker 2: She moved aggressively to investigate the president's perceived enemies, but
36:15
Speaker 2: Trump grew impatient over the lack of progress in prosecuting
36:19
Speaker 2: his adversaries. And was displeased with her handling of the
36:23
Speaker 2: files related to convicted sex offender Jeffrey Epstein. Bondi is
36:28
Speaker 2: the second cabinet member to lose her job, following former
36:32
Speaker 2: DHS Secretary Christy Nome. And that's it for this edition
36:36
Speaker 2: of The Bloomberg Law Show. Remember you can always get
36:39
Speaker 2: the latest legal news on our Bloomberg Law Podcast. You
36:42
Speaker 2: can find them on Apple Podcasts, Spotify, and at www
36:46
Speaker 2: dot bloomberg dot com slash podcast Slash Law, And remember
36:51
Speaker 2: to tune into The Bloomberg Law Show every weeknight at
36:54
Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're
36:57
Speaker 2: listening to Bloomberg