1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,560 --> 00:00:11,680 Speaker 2: With President Trump, sitting in the first row of the gallery, 3 00:00:11,760 --> 00:00:17,480 Speaker 2: watching Supreme Court justices from across the ideological spectrum, appeared 4 00:00:17,560 --> 00:00:21,560 Speaker 2: skeptical that an executive order he issued hours after his 5 00:00:21,640 --> 00:00:25,880 Speaker 2: inauguration last year could be squared with the Constitution and 6 00:00:26,000 --> 00:00:29,760 Speaker 2: federal law. The Fourteenth Amendment has long been understood to 7 00:00:29,840 --> 00:00:35,120 Speaker 2: guarantee citizenship to virtually everyone born on US soil, but 8 00:00:35,240 --> 00:00:40,240 Speaker 2: Trump's executive order would upend that and restrict birthright citizenship 9 00:00:40,400 --> 00:00:43,280 Speaker 2: to babies with at least one parent who's a US 10 00:00:43,360 --> 00:00:47,280 Speaker 2: citizen or a Green Card holder. Several justices called the 11 00:00:47,360 --> 00:00:52,760 Speaker 2: Trump administration's arguments quirky and obscure, among other things. Here 12 00:00:52,800 --> 00:00:55,440 Speaker 2: are Justices Elena Kagan and Neil Gorsuch. 13 00:00:56,240 --> 00:01:02,920 Speaker 3: Where does this principal come from? Allegiance domicile allegiance. I 14 00:01:02,920 --> 00:01:06,240 Speaker 3: think you point to a Lincoln funeral speech as your 15 00:01:06,319 --> 00:01:09,920 Speaker 3: primary example of where this principle comes from. It's certainly 16 00:01:10,000 --> 00:01:12,440 Speaker 3: not what we think of when we think of the 17 00:01:12,480 --> 00:01:14,000 Speaker 3: word jurisdiction. 18 00:01:14,680 --> 00:01:17,840 Speaker 4: And the stuff you have about unlawfully present. It's like 19 00:01:18,000 --> 00:01:19,880 Speaker 4: Roman law sources you're going to. 20 00:01:20,840 --> 00:01:25,840 Speaker 2: And Chief Justice John Roberts dismissed Solicitor General John sowers 21 00:01:25,880 --> 00:01:29,680 Speaker 2: contention that the country faces a new world in which 22 00:01:29,720 --> 00:01:34,560 Speaker 2: so called birth tourism was undercutting the historic understanding. 23 00:01:35,360 --> 00:01:37,039 Speaker 5: We're in a new world now, is justice, Leader pointed 24 00:01:37,040 --> 00:01:39,360 Speaker 5: out to where eight billion people are one plane ride 25 00:01:39,400 --> 00:01:42,080 Speaker 5: away from having a child's a US citizen. 26 00:01:42,200 --> 00:01:44,720 Speaker 4: Well, it's a new world. It's the same constitution. 27 00:01:44,720 --> 00:01:48,760 Speaker 2: And justice is Katanji Brown Jackson and Amy Coney. Barrett 28 00:01:49,160 --> 00:01:53,560 Speaker 2: asked about the practicalities, just how would the executive Order 29 00:01:53,600 --> 00:01:57,920 Speaker 2: be applied in practice given the determination would depend at 30 00:01:58,000 --> 00:02:01,400 Speaker 2: least in part on how long irons intended to stay 31 00:02:01,440 --> 00:02:02,360 Speaker 2: in the United. 32 00:02:02,120 --> 00:02:05,440 Speaker 6: States, because now you say your rule turns on whether 33 00:02:05,480 --> 00:02:07,600 Speaker 6: the person intended to stay in the United States. And 34 00:02:07,640 --> 00:02:10,120 Speaker 6: I think Justice Barrett brought this up. So we're bringing 35 00:02:10,160 --> 00:02:13,880 Speaker 6: pregnant women in for depositions. What are we doing to 36 00:02:13,960 --> 00:02:15,120 Speaker 6: figure this out? 37 00:02:15,440 --> 00:02:18,560 Speaker 7: I can imagine it being messy on some applications. So 38 00:02:19,200 --> 00:02:21,359 Speaker 7: how what would you do with what the common law 39 00:02:21,400 --> 00:02:24,480 Speaker 7: called foundlings? You know the thing about this is then 40 00:02:24,520 --> 00:02:27,000 Speaker 7: you have to adjudicate if you're looking at parents, and 41 00:02:27,000 --> 00:02:30,000 Speaker 7: if you're looking at parents domicile, then you have to 42 00:02:30,040 --> 00:02:32,800 Speaker 7: adjudicate both residents and intent to say, what if you 43 00:02:32,800 --> 00:02:33,880 Speaker 7: don't know who the parents are. 44 00:02:34,040 --> 00:02:37,440 Speaker 2: Trump's executive order would affect an estimated two hundred and 45 00:02:37,440 --> 00:02:42,960 Speaker 2: fifty thousand children born to undocumented immigrants and temporary visitors 46 00:02:43,120 --> 00:02:46,480 Speaker 2: each year. My guest is Leon Fresco, a partner at 47 00:02:46,480 --> 00:02:49,360 Speaker 2: Honda and Knight. He's the former head of the Office 48 00:02:49,400 --> 00:02:54,480 Speaker 2: of Civil Immigration Litigation in the Obama administration. Leon explained 49 00:02:54,480 --> 00:02:57,200 Speaker 2: what Trump's executive order would do. 50 00:02:58,000 --> 00:03:02,160 Speaker 1: So, the executive order is actually a little bit complicated 51 00:03:02,240 --> 00:03:04,680 Speaker 1: in the sense that what it does is it says 52 00:03:05,240 --> 00:03:09,400 Speaker 1: that if you are an adult in the United States 53 00:03:09,960 --> 00:03:15,440 Speaker 1: and a child is born from you, that child citizenship 54 00:03:15,560 --> 00:03:18,359 Speaker 1: is going to be based on a very complicated set 55 00:03:18,360 --> 00:03:22,080 Speaker 1: of tests. But essentially you're going to need one parent 56 00:03:22,560 --> 00:03:25,840 Speaker 1: who is at least a lawful, permanent resident of the 57 00:03:25,919 --> 00:03:30,200 Speaker 1: United States at the time of the child's birth. Now, 58 00:03:30,480 --> 00:03:34,960 Speaker 1: the arguments today don't actually dive with that executive order. 59 00:03:36,000 --> 00:03:40,080 Speaker 2: The language of the fourteenth Amendment is all persons born 60 00:03:40,280 --> 00:03:44,080 Speaker 2: or naturalized in the United States and subject to the 61 00:03:44,160 --> 00:03:48,720 Speaker 2: jurisdiction thereof are citizens of the United States. So the 62 00:03:48,800 --> 00:03:53,320 Speaker 2: key issue here revolves around the interpretation of those words. 63 00:03:53,520 --> 00:03:57,480 Speaker 1: The fourteenth Amendment, which was passed obviously as part of 64 00:03:57,520 --> 00:04:01,119 Speaker 1: the end of the Civil War, basically said that if 65 00:04:01,160 --> 00:04:04,440 Speaker 1: you were born in the United States, you are a 66 00:04:04,560 --> 00:04:07,760 Speaker 1: US citizen so long as you are subject to the 67 00:04:07,880 --> 00:04:11,320 Speaker 1: jurisdiction of the United States. And so there were some 68 00:04:12,200 --> 00:04:15,440 Speaker 1: initial exceptions that were sort of understood in the common 69 00:04:15,520 --> 00:04:19,080 Speaker 1: law historically as people who were not subjective to the 70 00:04:19,160 --> 00:04:23,560 Speaker 1: jurisdiction of the United States, which were children of diplomats, 71 00:04:23,760 --> 00:04:30,080 Speaker 1: invading armies and theny occupiers. Those were the historical groups 72 00:04:30,120 --> 00:04:33,200 Speaker 1: of people that were considered not subject to the jurisdiction 73 00:04:33,279 --> 00:04:36,480 Speaker 1: of the United States. But and this wasn't spoken about 74 00:04:36,520 --> 00:04:38,200 Speaker 1: it all during the oral argument, But I think it's 75 00:04:38,240 --> 00:04:41,280 Speaker 1: very important for your listeners to understand the history of this. 76 00:04:42,000 --> 00:04:45,120 Speaker 1: If you were just some random person in the eighteen 77 00:04:45,200 --> 00:04:48,839 Speaker 1: sixties who entered the United States and just got here, 78 00:04:49,400 --> 00:04:55,000 Speaker 1: there was no thing called deportation or admission or inspection. 79 00:04:55,680 --> 00:04:59,440 Speaker 1: So if you just arrived here from England or Ireland 80 00:04:59,560 --> 00:05:03,680 Speaker 1: or in the eighteen sixties, if you were here for 81 00:05:03,800 --> 00:05:08,120 Speaker 1: five years and could get some witnesses to testify to 82 00:05:08,200 --> 00:05:11,760 Speaker 1: that in a judicial proceeding, you can naturalized to be 83 00:05:11,839 --> 00:05:15,440 Speaker 1: a comme a US citizen, And at that time there 84 00:05:15,560 --> 00:05:19,520 Speaker 1: was no debate or dispute that someone who was born 85 00:05:19,560 --> 00:05:22,159 Speaker 1: here wouldn't even have to do that. They would just 86 00:05:22,240 --> 00:05:25,000 Speaker 1: be a US citizen unless they were a slave or 87 00:05:25,040 --> 00:05:28,800 Speaker 1: a child of slaves. So the question is where do 88 00:05:28,880 --> 00:05:32,560 Speaker 1: we go now in a world where there is this 89 00:05:32,640 --> 00:05:35,240 Speaker 1: process that you have to be admitted lawfully into the 90 00:05:35,279 --> 00:05:38,320 Speaker 1: United States if you're not born here in order to enter. 91 00:05:38,839 --> 00:05:44,200 Speaker 1: Where does that interface with this eighteen sixties amendment which 92 00:05:44,240 --> 00:05:47,200 Speaker 1: says that you're only a citizen of you're subject to 93 00:05:47,240 --> 00:05:49,760 Speaker 1: the jurisdiction of the United States. And that was the 94 00:05:49,800 --> 00:05:51,440 Speaker 1: debate that the Court was having today. 95 00:05:52,160 --> 00:05:57,159 Speaker 2: The Solicitor General faced a barrage of skeptical questions. What 96 00:05:57,240 --> 00:05:58,239 Speaker 2: was his main argument? 97 00:05:58,640 --> 00:06:03,440 Speaker 1: So his main argument is not necessarily that quote unquote 98 00:06:03,440 --> 00:06:07,880 Speaker 1: an illegal immigrant or an undocumented person who has a 99 00:06:08,000 --> 00:06:10,320 Speaker 1: child can't be a US citizen. That's sort of the 100 00:06:10,400 --> 00:06:14,440 Speaker 1: policy argument. The government's position was that subject to the 101 00:06:14,560 --> 00:06:19,640 Speaker 1: jurisdiction of the United States means that that person has 102 00:06:19,680 --> 00:06:24,880 Speaker 1: to have a domicile in the United States in order 103 00:06:24,920 --> 00:06:28,160 Speaker 1: for them to be able to pass citizenship onto their 104 00:06:28,279 --> 00:06:31,920 Speaker 1: children when they're born here. And the way they define 105 00:06:32,000 --> 00:06:34,919 Speaker 1: domicile isn't just that you have a house here or 106 00:06:34,960 --> 00:06:37,400 Speaker 1: a physical presence, but they say you have to have 107 00:06:37,839 --> 00:06:41,560 Speaker 1: the legal right to be able to reside here indefinitely, 108 00:06:41,640 --> 00:06:45,560 Speaker 1: meaning there can't be an expiration date on your status, 109 00:06:46,080 --> 00:06:49,480 Speaker 1: the legal capacity to form a permanent allegiance to the 110 00:06:49,600 --> 00:06:54,279 Speaker 1: United States, and that you've submitted to that full sovereign authority. 111 00:06:54,400 --> 00:06:59,279 Speaker 1: So they add all of these definitions onto the word 112 00:06:59,440 --> 00:07:02,640 Speaker 1: subject to the jurisdiction of the United States, and they 113 00:07:02,720 --> 00:07:07,280 Speaker 1: say that that's what domicile means. Because there was a 114 00:07:07,480 --> 00:07:13,560 Speaker 1: case called Wangar Kim from eighteen ninety eight which held 115 00:07:13,640 --> 00:07:16,440 Speaker 1: that a child born in the United States to non 116 00:07:16,480 --> 00:07:19,720 Speaker 1: citizen parents was a citizen at birth. But in that 117 00:07:19,920 --> 00:07:25,120 Speaker 1: case they mentioned domicile twenty times. And it's unclear why 118 00:07:25,160 --> 00:07:29,600 Speaker 1: that case mentioned domicile twenty times, but nevertheless it does. 119 00:07:30,240 --> 00:07:33,040 Speaker 1: And the court was debating why it said that. But 120 00:07:33,400 --> 00:07:37,040 Speaker 1: in the end the government says, because it mentioned that 121 00:07:37,120 --> 00:07:40,760 Speaker 1: word domicile so many times, it must mean something. And 122 00:07:40,840 --> 00:07:45,360 Speaker 1: so the government's position is that if the wang Kim 123 00:07:45,480 --> 00:07:49,120 Speaker 1: Supreme Court case said you have to be domiciled in 124 00:07:49,160 --> 00:07:54,560 Speaker 1: the United States in order to be given US citizenship, 125 00:07:55,000 --> 00:07:58,520 Speaker 1: that that must mean something, and so that's their argument. 126 00:07:58,600 --> 00:08:02,560 Speaker 1: And certainly there were some justices who seemed interested in 127 00:08:02,600 --> 00:08:06,280 Speaker 1: that argument. They didn't just automatically discount it. Much like 128 00:08:06,480 --> 00:08:10,440 Speaker 1: every lower court basically shunted aside these arguments. The Supreme 129 00:08:10,480 --> 00:08:13,600 Speaker 1: Court seemed much more interested in these arguments. 130 00:08:14,000 --> 00:08:18,840 Speaker 2: Yeah, one of the judges who found the executive order unconstitutional, 131 00:08:19,120 --> 00:08:25,120 Speaker 2: Seattle judge John Kunauer, called it blatantly unconstitutional and said, quote, 132 00:08:25,320 --> 00:08:28,520 Speaker 2: it boggles my mind that a lawyer could argue to 133 00:08:28,560 --> 00:08:31,920 Speaker 2: the contrary. But here we have a few Supreme Court 134 00:08:32,080 --> 00:08:36,480 Speaker 2: justices seeming to go down that rabbit hole. Justice Alito 135 00:08:36,640 --> 00:08:40,199 Speaker 2: certainly seemed interested in it. Any other justices well. 136 00:08:40,160 --> 00:08:43,920 Speaker 1: Justice Alito, Justice Thomas, I think were interested in it. 137 00:08:44,040 --> 00:08:47,200 Speaker 1: And then I think that Justice Corsic was trying to 138 00:08:47,280 --> 00:08:52,320 Speaker 1: engage with the argument, as was Justice Kavanaugh. And the 139 00:08:52,440 --> 00:08:56,640 Speaker 1: question is I think Roberts and Cony Barrett not as much. So, 140 00:08:57,000 --> 00:08:59,040 Speaker 1: if we were going to get to the latter part 141 00:08:59,040 --> 00:09:02,560 Speaker 1: of this discussion of a forecasting, I don't know where 142 00:09:02,559 --> 00:09:06,400 Speaker 1: the fifth vote would be for the Trump administration. But nevertheless, 143 00:09:06,679 --> 00:09:10,239 Speaker 1: they were all asking questions about why this word domicile 144 00:09:10,400 --> 00:09:16,200 Speaker 1: was being used in the wang Arkim decision. And from 145 00:09:16,240 --> 00:09:19,160 Speaker 1: that standpoint, we're trying to get at maybe was there 146 00:09:19,200 --> 00:09:23,200 Speaker 1: really something here to the government's argument that, yes, you 147 00:09:23,280 --> 00:09:26,960 Speaker 1: had to be domiciled in the United States in order 148 00:09:27,040 --> 00:09:29,199 Speaker 1: to be someone who can actually converse it is in 149 00:09:29,280 --> 00:09:30,439 Speaker 1: chip onto your children. 150 00:09:30,840 --> 00:09:35,120 Speaker 2: The ACLU's lawyer seemed to have the greatest problem with 151 00:09:35,440 --> 00:09:39,520 Speaker 2: answering the justices questions about domicile. 152 00:09:39,360 --> 00:09:43,040 Speaker 1: Right, because what the court was asking her is why 153 00:09:43,200 --> 00:09:46,080 Speaker 1: was this being used so much? And could it be 154 00:09:46,200 --> 00:09:49,320 Speaker 1: And this was Justice Alito's question. Could it be that 155 00:09:49,559 --> 00:09:52,520 Speaker 1: the reason it was being used was because in the 156 00:09:52,679 --> 00:09:56,080 Speaker 1: historical example that I gave you, while it was true 157 00:09:56,800 --> 00:10:01,679 Speaker 1: that anybody from Ireland or England, or Norway or Denmark 158 00:10:01,679 --> 00:10:05,040 Speaker 1: had just arrive in the United States and naturalize and 159 00:10:05,080 --> 00:10:08,640 Speaker 1: become a US citizen, that wasn't true for Chinese nationals. 160 00:10:08,640 --> 00:10:11,319 Speaker 1: They were the one group that was subject to exclusion 161 00:10:11,840 --> 00:10:16,720 Speaker 1: and potentially deportation due to race based restrictions. And so 162 00:10:17,040 --> 00:10:21,640 Speaker 1: the question was, would the child of a Chinese national 163 00:10:22,120 --> 00:10:25,559 Speaker 1: who was trying to live here permanently and was owing 164 00:10:25,640 --> 00:10:30,559 Speaker 1: no allegiance to China, would that child be given US citizenship? 165 00:10:30,640 --> 00:10:34,840 Speaker 1: And so what Justice Alito's point was in a scenario 166 00:10:35,080 --> 00:10:39,800 Speaker 1: like that where the person had entered legally and had 167 00:10:39,840 --> 00:10:43,320 Speaker 1: done everything right, but just couldn't become a citizen because 168 00:10:43,320 --> 00:10:46,880 Speaker 1: the laws prevented them from proceeding any further, that the 169 00:10:47,000 --> 00:10:49,679 Speaker 1: holding of wang our kids should be limited to that. 170 00:10:49,920 --> 00:10:52,880 Speaker 1: It should be limited to a scenario like that where 171 00:10:52,880 --> 00:10:57,839 Speaker 1: you entered legally, you've done everything you can, and that's it. 172 00:10:58,000 --> 00:11:01,080 Speaker 1: So in that scenario, your child be a US citizen. 173 00:11:01,320 --> 00:11:04,240 Speaker 1: But there were a lot of complicated questions that then 174 00:11:04,800 --> 00:11:08,240 Speaker 1: derived from there, which I think Justice coney Bart asked 175 00:11:08,280 --> 00:11:11,800 Speaker 1: a very interesting one with regard to how slavery work 176 00:11:12,320 --> 00:11:16,680 Speaker 1: and how it interfaced with human trafficking, because she asked, 177 00:11:16,760 --> 00:11:20,560 Speaker 1: what if in the eighteen sixties or after, you know, 178 00:11:21,000 --> 00:11:27,680 Speaker 1: the slave owner illegally trafficked slaves into the United States, 179 00:11:28,000 --> 00:11:32,160 Speaker 1: would those children have been US citizens? And the Solicitor 180 00:11:32,320 --> 00:11:35,200 Speaker 1: General said yes, that's the whole point of this law. 181 00:11:35,400 --> 00:11:38,360 Speaker 1: And so then Justice coney Bart asked, well, what if 182 00:11:38,400 --> 00:11:41,240 Speaker 1: someone was the modern day equivalent of a slave, now 183 00:11:41,280 --> 00:11:45,040 Speaker 1: they were human trafficked into the United States, why wouldn't 184 00:11:45,040 --> 00:11:48,640 Speaker 1: those children then be citizens of the United States, even 185 00:11:48,679 --> 00:11:52,200 Speaker 1: if the executive order would cover them because they would 186 00:11:52,240 --> 00:11:56,040 Speaker 1: only cover citizens and residents of the United States, and 187 00:11:56,120 --> 00:11:59,280 Speaker 1: the Solicitor General didn't have a good answer for that question. 188 00:11:59,360 --> 00:12:02,079 Speaker 1: He said, well, well, we can figure out a humanitarian 189 00:12:02,120 --> 00:12:05,640 Speaker 1: exception to this, but that's not really what the executive 190 00:12:05,720 --> 00:12:10,319 Speaker 1: order does. And so from that standpoint, I think what's 191 00:12:10,360 --> 00:12:13,480 Speaker 1: going to ultimately make the difference is going to be 192 00:12:14,160 --> 00:12:17,960 Speaker 1: how you try to apply something like this in practice. 193 00:12:18,320 --> 00:12:21,360 Speaker 1: And I think there were questions there from Justice Jackson, 194 00:12:22,320 --> 00:12:26,320 Speaker 1: Justice Roberts, and Justice Cony Barrett about these concepts of, Hey, 195 00:12:26,320 --> 00:12:28,559 Speaker 1: you're going to take a very simple, bright line rule, 196 00:12:29,320 --> 00:12:31,200 Speaker 1: and you're going to try to figure out all of 197 00:12:31,240 --> 00:12:34,720 Speaker 1: these various permutations of it where people might end up 198 00:12:34,760 --> 00:12:38,760 Speaker 1: with citizenship and might not. And I think that's ultimately 199 00:12:38,800 --> 00:12:41,160 Speaker 1: going to be what troubles enough members of the Court 200 00:12:41,600 --> 00:12:45,400 Speaker 1: to say that the executive Order is not valid. But 201 00:12:45,880 --> 00:12:47,960 Speaker 1: it's going to be very interesting in terms of the 202 00:12:48,000 --> 00:12:48,920 Speaker 1: analysis there. 203 00:12:51,080 --> 00:12:55,040 Speaker 2: The Supreme Court seemed poised today to reject President Donald 204 00:12:55,080 --> 00:12:59,760 Speaker 2: Trump's attempt to roll back birthright citizenship, in a case 205 00:12:59,800 --> 00:13:03,800 Speaker 2: that was magnified by his presence in the courtroom. Conservative 206 00:13:03,800 --> 00:13:08,520 Speaker 2: and liberal justice. His question whether Trump's executive order declaring 207 00:13:08,559 --> 00:13:11,439 Speaker 2: that children born to parents who are in the United 208 00:13:11,440 --> 00:13:16,560 Speaker 2: States illegally or temporarily are not American citizens could be 209 00:13:16,640 --> 00:13:20,679 Speaker 2: squared with either constitution or federal law. Trump heard as 210 00:13:20,720 --> 00:13:26,319 Speaker 2: his Solicitor General, John Sower, faced one skeptical question after another. 211 00:13:26,920 --> 00:13:30,560 Speaker 2: The Fourteenth Amendment guarantees citizenship to anyone who's born in 212 00:13:30,600 --> 00:13:34,880 Speaker 2: the United States and quote, subject to the jurisdiction thereof. 213 00:13:35,320 --> 00:13:38,960 Speaker 2: The Solicitor General argued that the provision applies only to 214 00:13:39,040 --> 00:13:42,040 Speaker 2: people who have a direct and immediate allegiance to the 215 00:13:42,120 --> 00:13:46,240 Speaker 2: United States and have established domicile in the country. The 216 00:13:46,320 --> 00:13:49,280 Speaker 2: Chief Justice had some problems with his argument. 217 00:13:49,679 --> 00:13:51,679 Speaker 5: You obviously put a lot of weight on subject to 218 00:13:51,720 --> 00:13:55,480 Speaker 5: the jurisdiction thereof, But the examples you give to support 219 00:13:55,520 --> 00:13:59,440 Speaker 5: that strike me as very quirky. You know, children of 220 00:13:59,480 --> 00:14:04,360 Speaker 5: an assators, children of enemies during a hostile invasion, children 221 00:14:04,400 --> 00:14:08,920 Speaker 5: on warships, and then you expand it to the whole 222 00:14:08,960 --> 00:14:13,840 Speaker 5: class of illegal aliens are here in the country. I'm 223 00:14:13,880 --> 00:14:16,240 Speaker 5: not quite sure how you can get to that big 224 00:14:16,280 --> 00:14:20,160 Speaker 5: group from such tiny and sort of idiosyncratic examples. 225 00:14:20,600 --> 00:14:23,600 Speaker 2: In a series of decisions, lower courts have struck down 226 00:14:23,640 --> 00:14:27,800 Speaker 2: the Executive Order as unconstitutional. The decisions have invoked the 227 00:14:27,840 --> 00:14:32,600 Speaker 2: Supreme Court's eighteen ninety eight ruling in wankim Arc, which 228 00:14:32,640 --> 00:14:36,040 Speaker 2: held at the US born child of Chinese nationals was 229 00:14:36,080 --> 00:14:41,120 Speaker 2: a citizen, and Conservative Justice Brett Kavanaugh, a Trump appointee, 230 00:14:41,600 --> 00:14:45,600 Speaker 2: cited that ruling in questioning whether the executive order was 231 00:14:45,680 --> 00:14:49,960 Speaker 2: legal under federal statutes enacted in nineteen forty in nineteen 232 00:14:50,040 --> 00:14:50,600 Speaker 2: fifty two. 233 00:14:51,400 --> 00:14:54,280 Speaker 4: By the time of the nineteen forty and nineteen fifty 234 00:14:54,320 --> 00:15:01,400 Speaker 4: two congressional actions, where Congress repeats subject to the jurisdiction 235 00:15:01,560 --> 00:15:06,800 Speaker 4: thereof given Juan kim Ark, one might have expected Congress 236 00:15:06,840 --> 00:15:10,600 Speaker 4: to use a different phrase if it wanted to try 237 00:15:11,040 --> 00:15:12,320 Speaker 4: to disagree with. 238 00:15:12,320 --> 00:15:17,720 Speaker 8: Wan kim Ark on what the scope of birthright citizenship 239 00:15:17,960 --> 00:15:22,080 Speaker 8: or the scope of citizenship should be. And yet Congress 240 00:15:22,120 --> 00:15:26,440 Speaker 8: repeats that same language, knowing what the interpretation had been. 241 00:15:27,200 --> 00:15:31,560 Speaker 2: No court has accepted the Trump administration's argument. I've been 242 00:15:31,560 --> 00:15:35,000 Speaker 2: talking to immigration law expert ly on Fresco of Holland 243 00:15:35,000 --> 00:15:37,640 Speaker 2: and Knight lenn As we were saying, a lot of 244 00:15:37,960 --> 00:15:43,360 Speaker 2: justices asked questions about the multiple references to domicile in 245 00:15:43,400 --> 00:15:48,000 Speaker 2: that eighteen ninety eight decision. Is there a legal definition 246 00:15:48,040 --> 00:15:50,080 Speaker 2: of domicile in the immigration laws. 247 00:15:50,400 --> 00:15:52,760 Speaker 1: Well, I mean, normally, it's just that you live there. 248 00:15:52,920 --> 00:15:56,520 Speaker 1: That's when we're talking about domicile for the purposes of 249 00:15:57,160 --> 00:16:01,640 Speaker 1: you know, service a process or or where you have 250 00:16:01,760 --> 00:16:06,520 Speaker 1: jurisdiction of the court. The court doesn't say, oh, you 251 00:16:06,720 --> 00:16:11,840 Speaker 1: had this car accident in Maryland, but you're undocumented until now, 252 00:16:11,880 --> 00:16:14,800 Speaker 1: you cannot be sued because you don't have a domicile 253 00:16:14,840 --> 00:16:17,080 Speaker 1: in Maryland. They don't say that they allow you to 254 00:16:17,080 --> 00:16:20,120 Speaker 1: be sued because that's the state of your domicile. Or 255 00:16:20,400 --> 00:16:23,800 Speaker 1: you were operating this fraud operation out of New York State, 256 00:16:24,320 --> 00:16:27,480 Speaker 1: but because you were here illegally, you were not able 257 00:16:27,520 --> 00:16:30,480 Speaker 1: to set up a domicile. They don't ask that question, 258 00:16:30,680 --> 00:16:34,160 Speaker 1: that second question about whether you were here legally or 259 00:16:34,200 --> 00:16:36,400 Speaker 1: not and did not prevent you from having a domicile. 260 00:16:36,440 --> 00:16:41,280 Speaker 1: The domicile normally just means where you are residing. And 261 00:16:41,320 --> 00:16:44,000 Speaker 1: so this is a new unique thing that the government 262 00:16:44,080 --> 00:16:47,240 Speaker 1: is arguing, which is that being here legally is a 263 00:16:47,280 --> 00:16:50,480 Speaker 1: prerequisite to being able to form a domicile in the 264 00:16:50,600 --> 00:16:51,320 Speaker 1: United States. 265 00:16:51,880 --> 00:16:55,480 Speaker 2: When we first heard about this Trump executive order and 266 00:16:55,680 --> 00:16:59,760 Speaker 2: the birthright citizenship, it seemed absurd and legal scholars were 267 00:17:00,160 --> 00:17:03,560 Speaker 2: talking about how this, you know, wouldn't pass Muster. At 268 00:17:03,560 --> 00:17:07,080 Speaker 2: the beginning of the Solicitor General's argument, just as Kagan said, 269 00:17:07,119 --> 00:17:11,240 Speaker 2: his arguments were obscure and the Chief Justice called them quirky, 270 00:17:11,560 --> 00:17:14,840 Speaker 2: But it seemed like by the end more justices were 271 00:17:14,880 --> 00:17:18,159 Speaker 2: giving it credence than I thought initially would. 272 00:17:18,720 --> 00:17:21,040 Speaker 1: Yes, I agree, I did not think that the pace 273 00:17:21,240 --> 00:17:24,840 Speaker 1: of the argument went very well. But I actually think 274 00:17:24,880 --> 00:17:27,680 Speaker 1: and we haven't touched on this yet, but I actually 275 00:17:27,720 --> 00:17:32,160 Speaker 1: think perhaps it was a strategically genius move for President 276 00:17:32,200 --> 00:17:35,320 Speaker 1: Trump to attend the oral argument, because I think that 277 00:17:35,440 --> 00:17:39,520 Speaker 1: by him attending the oral argument, it actually made the 278 00:17:39,720 --> 00:17:44,320 Speaker 1: questions from the conservative justices perhaps in a tone that 279 00:17:44,400 --> 00:17:47,080 Speaker 1: they wouldn't have been had he not been there, And 280 00:17:47,160 --> 00:17:52,280 Speaker 1: I think from that standpoint, it definitely may have impacted 281 00:17:52,320 --> 00:17:55,520 Speaker 1: the way that argument went. I do think the argument 282 00:17:55,600 --> 00:17:59,120 Speaker 1: presented by the Solicitor General might have been more sharply 283 00:17:59,200 --> 00:18:02,639 Speaker 1: contested by the justices had President Trump not been there, 284 00:18:02,960 --> 00:18:05,800 Speaker 1: but I think they didn't want to upset him, or 285 00:18:06,080 --> 00:18:08,000 Speaker 1: you know, I just think people are sensitive to these 286 00:18:08,080 --> 00:18:11,040 Speaker 1: human dynamics. It will be interesting to see what actually 287 00:18:11,080 --> 00:18:15,560 Speaker 1: comes out of the decision making process versus the oral argument. 288 00:18:15,560 --> 00:18:17,560 Speaker 1: Whereas usually you can tell a lot more from the 289 00:18:17,680 --> 00:18:21,760 Speaker 1: oral argument. It's possible that this oral argument moved a 290 00:18:21,800 --> 00:18:25,160 Speaker 1: bit into the world of theatrics. I do think though, 291 00:18:25,200 --> 00:18:28,960 Speaker 1: that even though the questions were subtle, there were some 292 00:18:29,600 --> 00:18:32,560 Speaker 1: very difficult questions, and I think one of them and 293 00:18:32,680 --> 00:18:36,200 Speaker 1: this sort of touched on the Major Questions doctrine. Bye, 294 00:18:36,200 --> 00:18:38,600 Speaker 1: by the way, for your listeners, the Major Questions doctrine 295 00:18:38,680 --> 00:18:41,359 Speaker 1: is a doctrine that was created out of this Trump 296 00:18:41,400 --> 00:18:44,960 Speaker 1: majority Supreme Court that basically says, if you're gonna have 297 00:18:45,080 --> 00:18:48,200 Speaker 1: something like a regulation or an executive order that interprets 298 00:18:48,200 --> 00:18:51,360 Speaker 1: the statute, and the statute is ambiguous, you're gonna need 299 00:18:51,400 --> 00:18:55,960 Speaker 1: something better than that. For the regulation or the executive 300 00:18:56,040 --> 00:18:58,800 Speaker 1: order to actually have power. You're gonna need Congress to 301 00:18:58,840 --> 00:19:01,600 Speaker 1: come in and say and if it's a really important deal, 302 00:19:01,920 --> 00:19:04,400 Speaker 1: and so, you can't have anything more important than citizenship. 303 00:19:04,760 --> 00:19:07,760 Speaker 1: And so someone asked the question to the Solicitor General, 304 00:19:08,280 --> 00:19:12,359 Speaker 1: what kind of evidence do we need after one hundred 305 00:19:12,400 --> 00:19:16,480 Speaker 1: and fifty years of thinking that there was birthright citizenship 306 00:19:17,080 --> 00:19:20,240 Speaker 1: in America to change it all of a sudden, like, 307 00:19:20,320 --> 00:19:22,720 Speaker 1: how can we do that on the basis of just 308 00:19:23,000 --> 00:19:26,679 Speaker 1: one president's executive order, when for one hundred and fifty 309 00:19:26,760 --> 00:19:29,639 Speaker 1: years we thought it was one way. If this was 310 00:19:29,680 --> 00:19:32,639 Speaker 1: so obvious, why did it go on for one hundred 311 00:19:32,640 --> 00:19:34,960 Speaker 1: and fifty years? You know, what is the level of 312 00:19:35,000 --> 00:19:37,960 Speaker 1: evidence we would need to overturn that on the basis 313 00:19:37,960 --> 00:19:41,240 Speaker 1: of an executive order rather than Congress weighing in and 314 00:19:41,359 --> 00:19:45,119 Speaker 1: changing it. And I didn't think that the Solicitor General 315 00:19:45,200 --> 00:19:48,840 Speaker 1: really answered that question. I think the Solicitor General just said, well, 316 00:19:48,880 --> 00:19:51,640 Speaker 1: you don't have to overturn anything. This was always how 317 00:19:51,680 --> 00:19:55,000 Speaker 1: it was, and this was the way the Supreme Court 318 00:19:55,000 --> 00:19:58,919 Speaker 1: thought it was also, and just basically trying to edge 319 00:19:58,960 --> 00:20:02,119 Speaker 1: around the question. But I think if the Court really 320 00:20:02,400 --> 00:20:06,520 Speaker 1: focuses on that question, which is sort of a corollary 321 00:20:06,600 --> 00:20:09,960 Speaker 1: of the major questions doctrine, which is is this really 322 00:20:10,000 --> 00:20:13,480 Speaker 1: an ambiguous question? Which I think if you're at five 323 00:20:13,560 --> 00:20:16,280 Speaker 1: to four or something, you have to say is an 324 00:20:16,320 --> 00:20:19,560 Speaker 1: ambiguous question? And you even had Justice course it say 325 00:20:19,800 --> 00:20:22,359 Speaker 1: this is a mess. There's good arguments on both sides, 326 00:20:22,800 --> 00:20:25,480 Speaker 1: and you had some other justices say that, and you 327 00:20:25,520 --> 00:20:29,240 Speaker 1: had Justice Kavanaugh talking about the statute. Because there's two things. 328 00:20:29,240 --> 00:20:32,159 Speaker 1: There's the Constitution and there's a statute, which says the 329 00:20:32,200 --> 00:20:35,280 Speaker 1: same thing as the Constitution, which was passed in the 330 00:20:35,359 --> 00:20:41,320 Speaker 1: nineteen forties, after there was already eighty years of this 331 00:20:41,560 --> 00:20:45,440 Speaker 1: belief that you had birthright citizenship. So if you didn't 332 00:20:45,480 --> 00:20:48,560 Speaker 1: think there was birthright citizenship, why would you pass the 333 00:20:48,640 --> 00:20:52,280 Speaker 1: same exact words in a statute in nineteen forty If 334 00:20:52,280 --> 00:20:54,479 Speaker 1: you wanted to change it, you would change it. And 335 00:20:54,560 --> 00:20:58,080 Speaker 1: so the argument is based on all of that history, 336 00:20:58,880 --> 00:21:02,240 Speaker 1: why would an executive order be sufficient given this major 337 00:21:02,359 --> 00:21:05,840 Speaker 1: questions doctrine to change it? And I think that's going 338 00:21:05,920 --> 00:21:07,879 Speaker 1: to be the ultimate argument that the Court's going to 339 00:21:07,960 --> 00:21:12,080 Speaker 1: have to struggle with. That. Plus the administrability aspect of 340 00:21:12,119 --> 00:21:16,360 Speaker 1: this Leon explained some of the problems in administering it. 341 00:21:17,280 --> 00:21:19,520 Speaker 1: What do you do in all of these edge cases 342 00:21:20,160 --> 00:21:23,639 Speaker 1: where you know, someone was smuggled into the country, someone's 343 00:21:23,640 --> 00:21:26,280 Speaker 1: an applicant for a green card but they haven't gotten 344 00:21:26,320 --> 00:21:29,119 Speaker 1: their green card yet, but they are an applicant for it. 345 00:21:29,200 --> 00:21:30,679 Speaker 1: What you know, what do you do in all of 346 00:21:30,720 --> 00:21:34,720 Speaker 1: these cases? And they're the administration is not going to 347 00:21:34,800 --> 00:21:38,479 Speaker 1: have very good answers with regard to those questions, and 348 00:21:38,520 --> 00:21:40,400 Speaker 1: I think the Court's going to have to decide, well, 349 00:21:40,440 --> 00:21:45,680 Speaker 1: maybe it doesn't care about those administrability questions, or it says, 350 00:21:45,760 --> 00:21:48,479 Speaker 1: look at the end of the day, if we're going 351 00:21:48,520 --> 00:21:50,760 Speaker 1: to go down this road, and they may do this, 352 00:21:50,880 --> 00:21:53,879 Speaker 1: they may they may potentially say at the end of 353 00:21:53,920 --> 00:21:57,560 Speaker 1: the day, maybe Congress can have something to say about this, 354 00:21:57,720 --> 00:22:00,520 Speaker 1: but they will need to say something about this, and 355 00:22:01,160 --> 00:22:05,080 Speaker 1: we won't do it ourselves. So if Congress wants to 356 00:22:05,200 --> 00:22:10,000 Speaker 1: change the way that the birthright citizenship law work, there's 357 00:22:10,119 --> 00:22:13,680 Speaker 1: enough wiggle room there to define what subject to jurisdiction means. 358 00:22:13,880 --> 00:22:15,879 Speaker 1: But Congress is going to have to do that, and 359 00:22:15,920 --> 00:22:17,680 Speaker 1: that may be a ruling that the Court makes. 360 00:22:17,800 --> 00:22:20,399 Speaker 2: So, just as Kavanaugh said, we'd like to decide the 361 00:22:20,440 --> 00:22:24,760 Speaker 2: statutory question rather than the constitutional question. So if they 362 00:22:24,840 --> 00:22:27,200 Speaker 2: based it on a statue, they base it on that 363 00:22:27,440 --> 00:22:30,560 Speaker 2: nineteen forties law you're talking about, correct. 364 00:22:30,640 --> 00:22:32,720 Speaker 1: They may say one of two things. They may either 365 00:22:32,840 --> 00:22:37,560 Speaker 1: say that the nineteen forties law is ambiguous and based 366 00:22:37,560 --> 00:22:41,000 Speaker 1: on the major questions doctrine go back to Congress and 367 00:22:41,200 --> 00:22:43,320 Speaker 1: Congress has to figure out if they don't want certain 368 00:22:43,359 --> 00:22:46,520 Speaker 1: people to get citizenship or not. Or they may say 369 00:22:46,560 --> 00:22:50,760 Speaker 1: that the nineteen forties law is completely clear and what 370 00:22:50,800 --> 00:22:54,960 Speaker 1: the nineteen forties law says is we knew for eighty 371 00:22:55,080 --> 00:22:59,800 Speaker 1: years that there was citizenship that was given to people 372 00:22:59,800 --> 00:23:02,520 Speaker 1: who are born in the United States, and we didn't 373 00:23:02,600 --> 00:23:04,359 Speaker 1: change it because if we wanted to change it, we 374 00:23:04,359 --> 00:23:06,880 Speaker 1: would have written words that were different. But we wrote 375 00:23:06,920 --> 00:23:10,840 Speaker 1: the exact same words as part of a larger statutory scheme, 376 00:23:10,880 --> 00:23:14,080 Speaker 1: because it wasn't just those few words. That was one 377 00:23:14,160 --> 00:23:16,960 Speaker 1: basis in which you would get citizenship, and then it 378 00:23:17,000 --> 00:23:19,280 Speaker 1: added other basies. So like it said, if you were 379 00:23:19,280 --> 00:23:22,120 Speaker 1: born abroad but one of your parents was a US 380 00:23:22,200 --> 00:23:24,960 Speaker 1: citizen and they'd lived here for five years, they could 381 00:23:25,040 --> 00:23:27,679 Speaker 1: give you citizenship. So there was a bunch of ways. 382 00:23:28,080 --> 00:23:31,399 Speaker 1: But the first way was you were born here, and 383 00:23:31,520 --> 00:23:36,879 Speaker 1: that was the first law, and that law mirrored exactly 384 00:23:36,960 --> 00:23:40,120 Speaker 1: word for word the Constitution. And so again, if they 385 00:23:40,240 --> 00:23:44,040 Speaker 1: didn't think that that was true after eighty years of 386 00:23:44,080 --> 00:23:46,239 Speaker 1: that being true, they would have tried to change it. 387 00:23:46,760 --> 00:23:51,960 Speaker 1: So unclear, and the Solicitor General's answer was, well, they 388 00:23:52,000 --> 00:23:55,160 Speaker 1: thought it was what it was in the eighteen sixties, 389 00:23:55,200 --> 00:23:57,840 Speaker 1: and what it was in the eighteen sixties was that 390 00:23:57,920 --> 00:24:01,880 Speaker 1: you didn't get birthright citizenship. Well, well, okay, but that's 391 00:24:01,920 --> 00:24:05,159 Speaker 1: not really what happened. That's not true, and so I 392 00:24:05,160 --> 00:24:07,439 Speaker 1: don't know where that puts the solicitors center. But so 393 00:24:07,480 --> 00:24:11,240 Speaker 1: I do think if it's a statutory decision, then the 394 00:24:11,240 --> 00:24:15,920 Speaker 1: statutory decision would be not in favor of the government. 395 00:24:15,960 --> 00:24:17,680 Speaker 1: And that's why the government said, if you're going to 396 00:24:17,760 --> 00:24:22,120 Speaker 1: rule against us, please use the statutory decision, because then 397 00:24:22,200 --> 00:24:25,080 Speaker 1: what that would do is it would punt the issue 398 00:24:25,119 --> 00:24:31,160 Speaker 1: to Congress to say, potentially, the Constitution doesn't prevent Congress 399 00:24:31,160 --> 00:24:34,520 Speaker 1: from clarifying who is subject to the jurisdiction for the 400 00:24:34,560 --> 00:24:38,840 Speaker 1: purposes of citizenship, and so now Congress can go and 401 00:24:38,880 --> 00:24:41,800 Speaker 1: regulate in this matter if it wants to, and that 402 00:24:41,840 --> 00:24:45,800 Speaker 1: would be fascinated. They would then punk the issue back 403 00:24:46,119 --> 00:24:49,879 Speaker 1: to the Congress, and I could see if the government's 404 00:24:49,920 --> 00:24:53,359 Speaker 1: going to win that being their win. I don't see 405 00:24:53,359 --> 00:24:57,359 Speaker 1: them upholding this executive order. I don't see that. I 406 00:24:57,400 --> 00:25:00,000 Speaker 1: don't see five votes for saying this executive order it's fine. 407 00:25:00,560 --> 00:25:02,880 Speaker 1: But I think a win for the government would be 408 00:25:03,320 --> 00:25:08,840 Speaker 1: that the Constitution hasn't frozen birthright citizenship in perpetuity forever. 409 00:25:09,560 --> 00:25:12,760 Speaker 1: But what it has done is it has given Congress 410 00:25:12,800 --> 00:25:17,760 Speaker 1: the ability to say who is subject to the jurisdiction 411 00:25:17,880 --> 00:25:21,160 Speaker 1: of the United States, and we'll see we'll see what happened. 412 00:25:21,359 --> 00:25:24,280 Speaker 2: Leon, what's your account of the justice's positions. 413 00:25:24,800 --> 00:25:28,480 Speaker 1: I think there's three for sure in terms of validating 414 00:25:28,520 --> 00:25:32,359 Speaker 1: the executive order, which are Justice Brown Jackson, Justice Kagan, 415 00:25:32,480 --> 00:25:36,600 Speaker 1: Justice Sotomayor. There's Thomas and Alito for sure in upholding 416 00:25:36,640 --> 00:25:39,879 Speaker 1: the executive order. And then the question is Justice Robert, 417 00:25:40,040 --> 00:25:44,359 Speaker 1: Justice Course, Justice Kavanaugh, Justice Cony Barrett. And I think 418 00:25:44,480 --> 00:25:48,159 Speaker 1: Robert asked enough question talking about the kooky nature of 419 00:25:48,240 --> 00:25:51,520 Speaker 1: the government's executive order that he would be the fourth 420 00:25:51,600 --> 00:25:55,400 Speaker 1: vote to invalidate the executive order. And I think Kavanaugh 421 00:25:56,160 --> 00:25:59,880 Speaker 1: is trying to build a coalition around this statutory argument, 422 00:26:00,400 --> 00:26:05,000 Speaker 1: which I think ultimately they carry the day because he 423 00:26:05,040 --> 00:26:08,600 Speaker 1: may be the fifth vote concurring in the judgment essentially 424 00:26:09,119 --> 00:26:13,439 Speaker 1: that the executive order is void. But he may say 425 00:26:13,520 --> 00:26:17,280 Speaker 1: it's void because Congress hasn't done something, but Congress could 426 00:26:17,280 --> 00:26:20,920 Speaker 1: do something, and I think there would be four votes 427 00:26:20,960 --> 00:26:23,000 Speaker 1: for that for sure. I don't know where, just as 428 00:26:23,000 --> 00:26:25,879 Speaker 1: Cony Barrett would be. I think her discussion about the 429 00:26:25,960 --> 00:26:29,399 Speaker 1: human traffic thing and her history in the past with 430 00:26:29,520 --> 00:26:34,680 Speaker 1: being friendly toward foreign national cases in other areas leads 431 00:26:34,720 --> 00:26:37,440 Speaker 1: me to think she's not a fan of this executive 432 00:26:37,520 --> 00:26:40,640 Speaker 1: order in any way, shape or form. So she might 433 00:26:40,800 --> 00:26:44,439 Speaker 1: be a fifth clean vote for invalidating the order on 434 00:26:44,520 --> 00:26:49,679 Speaker 1: constitutional grounds. But I could actually see no majority on 435 00:26:49,840 --> 00:26:54,320 Speaker 1: invalidating the order on constitutional grounds, but a majority on 436 00:26:54,400 --> 00:26:59,679 Speaker 1: invalidating the order on either constitutional or statutory grounds, with 437 00:27:00,359 --> 00:27:03,359 Speaker 1: concurring opinions trying to figure out which one works and 438 00:27:03,400 --> 00:27:04,199 Speaker 1: which one doesn't. 439 00:27:04,640 --> 00:27:06,960 Speaker 2: I'm not sure why they took this case, opening a 440 00:27:07,240 --> 00:27:08,479 Speaker 2: can of worm sort of. 441 00:27:09,080 --> 00:27:11,840 Speaker 1: I really think they wanted to get some finality. It 442 00:27:11,880 --> 00:27:15,600 Speaker 1: was an issue of incredible importance. The Trump administration asked 443 00:27:15,600 --> 00:27:19,280 Speaker 1: them to take the case. And it is very very 444 00:27:19,400 --> 00:27:22,560 Speaker 1: very rare that when the Solicitor General asked the Supreme 445 00:27:22,560 --> 00:27:24,280 Speaker 1: Court to take a case, they don't take it. Some 446 00:27:24,440 --> 00:27:28,560 Speaker 1: things happened, but very very very rare. So they wanted 447 00:27:28,560 --> 00:27:31,959 Speaker 1: to bring some finality to this. But they may end 448 00:27:32,040 --> 00:27:36,159 Speaker 1: up really sort of getting up all the sites to 449 00:27:36,240 --> 00:27:38,560 Speaker 1: this if they do what I think they're gonna do, 450 00:27:38,640 --> 00:27:42,879 Speaker 1: which is punted to the Congress and say, hey, Congress, 451 00:27:43,080 --> 00:27:45,960 Speaker 1: if you want to put some limits to this term 452 00:27:46,040 --> 00:27:50,520 Speaker 1: of jurisdiction, then domicile go ahead. Have at it now. 453 00:27:50,600 --> 00:27:52,640 Speaker 1: Will the Congress ever pass up to law. Will there 454 00:27:52,680 --> 00:27:55,640 Speaker 1: be sixty votes? Would it be worth for the Republicans 455 00:27:55,640 --> 00:27:59,160 Speaker 1: to finally abandon the filibuster in order to do this? 456 00:27:59,560 --> 00:28:01,119 Speaker 1: Would it be the kind of thing where if you 457 00:28:01,160 --> 00:28:04,840 Speaker 1: abandoned the filibuster, it would literally change who was a citizen, 458 00:28:04,920 --> 00:28:07,919 Speaker 1: depending on who was in Congress at that time. It 459 00:28:07,960 --> 00:28:11,000 Speaker 1: could end up being completely crazy. We'll see, But we've 460 00:28:11,040 --> 00:28:15,320 Speaker 1: seen enough dramatic change from this court on other issues 461 00:28:15,560 --> 00:28:17,800 Speaker 1: that I don't put it past them to allow this 462 00:28:17,880 --> 00:28:18,320 Speaker 1: to happen. 463 00:28:18,520 --> 00:28:20,080 Speaker 2: I thought it would They would have to pass a 464 00:28:20,119 --> 00:28:24,160 Speaker 2: constitutional amendment in order to change what the forteenth Amendment says. 465 00:28:24,240 --> 00:28:27,199 Speaker 1: So one outcome would be and this is what they 466 00:28:27,280 --> 00:28:30,800 Speaker 1: asked the ACLU lawyer, And what Cecilia Wan was saying 467 00:28:30,920 --> 00:28:34,920 Speaker 1: is it's frozen in time. That's it. The exceptions that 468 00:28:34,960 --> 00:28:38,560 Speaker 1: we know are the only exceptions, and the Constitution bans 469 00:28:38,560 --> 00:28:42,240 Speaker 1: any future exception. So that's the ruling that the foreign 470 00:28:42,320 --> 00:28:45,360 Speaker 1: national wants in this case, that the ACLU want, that 471 00:28:45,360 --> 00:28:48,120 Speaker 1: the immigration advocates want, that's what they want. That Congress 472 00:28:48,160 --> 00:28:51,640 Speaker 1: has no power on this, but that doesn't have to 473 00:28:51,680 --> 00:28:55,400 Speaker 1: be the ruling. The ruling could be that Congress does 474 00:28:55,480 --> 00:28:59,280 Speaker 1: have the power within limits to regulate who is subject 475 00:28:59,320 --> 00:29:02,720 Speaker 1: to the jurisdic of the United States, given that this 476 00:29:02,960 --> 00:29:06,800 Speaker 1: issue of immigration and nationality was not an issue in 477 00:29:06,840 --> 00:29:10,120 Speaker 1: the eighteen sixties, and so we will allow Congress to 478 00:29:10,200 --> 00:29:12,480 Speaker 1: regulate in this space. But it has to be Congress, 479 00:29:12,520 --> 00:29:15,920 Speaker 1: it can't be an executive order. And so the executive 480 00:29:16,000 --> 00:29:18,680 Speaker 1: order is thrown out. Because from that standpoint, the Court 481 00:29:18,720 --> 00:29:21,240 Speaker 1: is still happy they threw out the executive order, no 482 00:29:21,400 --> 00:29:25,040 Speaker 1: confusion has caused. Anything that happens later is subject to 483 00:29:25,080 --> 00:29:27,800 Speaker 1: the political process. But it's not dead, because if you 484 00:29:27,840 --> 00:29:31,240 Speaker 1: make it a constitutional then it's dead forever. But if 485 00:29:31,240 --> 00:29:34,080 Speaker 1: you make it statutory, you at least allow this to 486 00:29:34,080 --> 00:29:36,840 Speaker 1: be a political thing. And I really do think that 487 00:29:36,840 --> 00:29:40,080 Speaker 1: there are some justices on the Court that are bothered 488 00:29:40,200 --> 00:29:44,480 Speaker 1: enough by the concept of birth tourism, which is where 489 00:29:44,480 --> 00:29:47,040 Speaker 1: people pay to have their children in the United States, 490 00:29:47,400 --> 00:29:50,880 Speaker 1: and other things of this nature, that they do want 491 00:29:50,920 --> 00:29:53,200 Speaker 1: to leave the possibility open that there could be some 492 00:29:53,360 --> 00:29:57,200 Speaker 1: remedy for this other than a constitutional amendment, because they 493 00:29:57,200 --> 00:29:59,840 Speaker 1: know that that would be killing it otherwise. That's why, 494 00:30:00,160 --> 00:30:02,200 Speaker 1: for some reason, if you put a gun to my head, 495 00:30:02,280 --> 00:30:05,160 Speaker 1: I would say that they're going to try to figure 496 00:30:05,160 --> 00:30:07,520 Speaker 1: out some way not to make it a completely frozen 497 00:30:07,560 --> 00:30:12,080 Speaker 1: and time constitutional question, but we'll see what happens. 498 00:30:12,240 --> 00:30:14,360 Speaker 2: We'll see by the end of June. Thanks so much 499 00:30:14,400 --> 00:30:17,160 Speaker 2: for spending so much time with me. Leon. That's Leon 500 00:30:17,200 --> 00:30:20,200 Speaker 2: Fresco of Honda Night, and that's it for this edition 501 00:30:20,240 --> 00:30:22,880 Speaker 2: of The Bloomberg Law Show. Remember you can always get 502 00:30:22,880 --> 00:30:26,040 Speaker 2: the latest legal news on our Bloomberg Law Podcast. You 503 00:30:26,080 --> 00:30:30,160 Speaker 2: can find them on Apple Podcasts, Spotify, and at www 504 00:30:30,320 --> 00:30:34,600 Speaker 2: dot bloomberg dot com slash podcast Slash Law, and remember 505 00:30:34,600 --> 00:30:37,560 Speaker 2: to tune into The Bloomberg Law Show every weeknight at 506 00:30:37,600 --> 00:30:41,080 Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're 507 00:30:41,160 --> 00:30:42,360 Speaker 2: listening to Bloomberg