WEBVTT - Supreme Court Clears Trump Immigrant Wealth Test 0:00:00.680 --> 0:00:05.320 You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:05.680 --> 0:00:09.920 President Trump has long complained about judges who issue injunctions 0:00:09.960 --> 0:00:16.040 that apply across the country. This includes activist judges who 0:00:16.040 --> 0:00:20.920 have issued nationwide injunctions prohibiting US from enforcing the immigration 0:00:21.040 --> 0:00:25.160 laws enacted even by Congress. Now, the Supreme Court has 0:00:25.200 --> 0:00:28.560 backed him up, lifting a nationwide injunction and letting the 0:00:28.560 --> 0:00:33.360 administration start enforcing its new immigrant wealth test that's designed 0:00:33.360 --> 0:00:36.120 to screen out Green card applicants seen as being at 0:00:36.240 --> 0:00:40.159 risk of becoming dependent on government benefits. Joining me is 0:00:40.240 --> 0:00:43.199 Leon Fresco, a partnered Hollandon Knight and formerly head of 0:00:43.200 --> 0:00:46.279 the Office of Immigration Litigation at the Department of Justice. 0:00:46.840 --> 0:00:51.240 Describe what Trump's new immigrant wealth test is and how 0:00:51.280 --> 0:00:55.920 it differs from the old tests. Sure, the test is 0:00:55.960 --> 0:01:00.880 called the public charge test, and since the teen hundreds, 0:01:01.040 --> 0:01:05.440 Congress actually has had a statute called the Public Charge Statute. 0:01:05.520 --> 0:01:08.800 And what that statute has said is is that if 0:01:08.840 --> 0:01:12.160 a person is coming to the United States from abroad, 0:01:12.800 --> 0:01:16.319 they can be denied entry into the United States if 0:01:16.760 --> 0:01:20.800 the person who's adjudicating their entry determines that they're likely 0:01:20.880 --> 0:01:24.080 to be a public charge, And what public charge has 0:01:24.160 --> 0:01:26.920 historically meant is that they will be reliant on the 0:01:27.040 --> 0:01:31.560 government dole or fisk in order to survive in the 0:01:31.640 --> 0:01:34.959 United States, taxpayers will have to ensure that these individuals 0:01:35.080 --> 0:01:39.520 eat and get support and housing, etcetera. Now, what the 0:01:39.600 --> 0:01:43.480 Trump administration has done is it has in two thousand 0:01:43.480 --> 0:01:48.160 and eighteen decided to change the implementing regulations in order 0:01:48.200 --> 0:01:51.960 to define much more broadly the types of people who 0:01:52.000 --> 0:01:55.360 can be called public charges and thus to be able 0:01:55.400 --> 0:01:59.360 to exclude more foreigners from entering the United States. So 0:01:59.480 --> 0:02:04.279 are they determining in advance who might be a public charge? 0:02:04.400 --> 0:02:07.160 How would they do that? So there's three ways in 0:02:07.280 --> 0:02:10.440 which this gets implemented. The first way it gets implemented 0:02:11.000 --> 0:02:14.480 is for individuals who are abroad who are applying for 0:02:14.639 --> 0:02:18.600 visas to come into the United States. So, when someone 0:02:18.840 --> 0:02:21.160 is abroad and they either want to come because they're 0:02:21.200 --> 0:02:24.280 marrying a US citizen or they have a job, that's 0:02:24.400 --> 0:02:27.360 petition for them to come on an employment based green card. 0:02:28.040 --> 0:02:31.160 The counselor adjudicator when you go to pick up your 0:02:31.280 --> 0:02:34.440 visa at a U. S consulate can make a determination 0:02:34.520 --> 0:02:37.040 as to who is a public charge and if they 0:02:37.080 --> 0:02:40.000 think that person is likely to become a public chart, 0:02:40.120 --> 0:02:42.760 they can deny them the visa right there. The second 0:02:42.760 --> 0:02:46.119 way is that someone is already here, but they're here 0:02:46.160 --> 0:02:48.760 on what's called a non immigrant visa, meaning they came 0:02:48.800 --> 0:02:51.240 as a visitor, or as a student, or as a 0:02:51.280 --> 0:02:54.240 temporary worker, and now they want to apply for a 0:02:54.280 --> 0:02:57.840 green card. Maybe they married a US citizen, or maybe 0:02:58.080 --> 0:03:01.440 a company has asked for them to stay permanently. In 0:03:01.520 --> 0:03:06.639 that situation, that determination can also be rejected if an 0:03:06.639 --> 0:03:09.880 adjudicator here in the United States determined that that person 0:03:10.000 --> 0:03:12.400 is going to become a public charge. And then the 0:03:12.440 --> 0:03:15.239 third way is for individuals who are here on one 0:03:15.280 --> 0:03:18.160 type of visa who wants to change to a second 0:03:18.160 --> 0:03:22.360 type of visa, that application may be denied now if 0:03:22.760 --> 0:03:25.040 the person is determined to be a public charge in 0:03:25.080 --> 0:03:28.520 the future. Now, a New York federal judge blocked the 0:03:28.600 --> 0:03:32.280 policy from going into effect just while the legal fight 0:03:32.480 --> 0:03:35.800 goes forward. So how big a win is this for 0:03:35.880 --> 0:03:40.160 the Trump administration for the Supreme Court to lift that 0:03:40.360 --> 0:03:44.080 injunction and let the policy go forward. Well, by the 0:03:44.200 --> 0:03:47.360 very terms of the arguments that Trump administration was making 0:03:47.640 --> 0:03:50.080 to the New York Court of Appeals to the Second 0:03:50.120 --> 0:03:53.280 Circuit Court of Appeals. They were saying that the harm 0:03:53.360 --> 0:03:56.560 that they would suffer if this rule had been enjoined, 0:03:56.600 --> 0:03:58.960 even for a few more months, was that they would 0:03:59.000 --> 0:04:01.480 not be able to reach people from coming to the 0:04:01.560 --> 0:04:04.560 United States that they would otherwise have wanted to reject. 0:04:05.160 --> 0:04:07.280 And so this is a big win for them from 0:04:07.320 --> 0:04:10.320 that perspective that they will now be able in these 0:04:10.440 --> 0:04:14.440 interim months where the litigation is pending, to reject people 0:04:14.560 --> 0:04:16.839 from the United States that would if otherwise, had to 0:04:16.839 --> 0:04:20.760 have been accepted had this rule not been implemented. So 0:04:21.120 --> 0:04:24.000 the Court as a whole gave no explanation for its order, 0:04:24.440 --> 0:04:29.120 but Justice Neil Gorst, writing for himself, and Justice Clarence Thomas, 0:04:29.240 --> 0:04:32.479 said the Court needs to curb the power of federal 0:04:32.520 --> 0:04:36.360 trial judges to issue these nationwide orders that block a 0:04:36.480 --> 0:04:40.039 government initiative. So is this decision by the Court more 0:04:40.279 --> 0:04:45.520 about the wealth test itself or stopping these nationwide injunctions. 0:04:46.440 --> 0:04:48.920 I think there's quite a mix of both there. And 0:04:48.960 --> 0:04:52.160 I think what may have frustrated the five justices is 0:04:52.680 --> 0:04:55.919 it be one thing if there was litigation about, for instance, 0:04:55.960 --> 0:05:00.240 the applicability of the public charge doctrine two people who 0:05:00.520 --> 0:05:04.680 didn't speak English, or the people with disabilities or the 0:05:04.800 --> 0:05:07.640 people with low credit scores or something like that a 0:05:07.640 --> 0:05:12.200 specific test. But what they express frustration about, at least 0:05:12.200 --> 0:05:15.520 in the concurring opinion, is that the rule was enjoined 0:05:15.520 --> 0:05:19.520 in its entirety as to every single individual, and they're 0:05:19.560 --> 0:05:22.640 saying it cannot be the case that every single aspect 0:05:22.720 --> 0:05:26.600 of this rule is in violation of the statute, and 0:05:26.800 --> 0:05:30.080 because of that, that challenge that tries to make it 0:05:30.400 --> 0:05:34.920 completely invalid should be stayed. This was a split decision 0:05:34.960 --> 0:05:40.000 along ideological lines. Why along ideological lines in a case 0:05:40.080 --> 0:05:43.880 like this are we expecting to see ideological splits in 0:05:44.240 --> 0:05:48.200 the immigration cases going forward? Sure, I think that the 0:05:48.279 --> 0:05:52.159 problem here and it just all comes down to sort 0:05:52.200 --> 0:05:55.520 of what you think is good faith or not good faith. 0:05:55.600 --> 0:05:58.440 If you think that this regulation was done in good faith, 0:05:58.880 --> 0:06:00.919 then there would be no reason to enjoin it in 0:06:00.960 --> 0:06:04.839 its entirety because you think, okay, well, this regulation is 0:06:04.839 --> 0:06:09.200 only going to be applied in very narrow circumstances, and 0:06:09.320 --> 0:06:12.840 even those narrow circumstances, it's applied incorrectly. People can go 0:06:12.880 --> 0:06:16.200 to court and challenge it and that will be fine. 0:06:16.760 --> 0:06:20.000 But the poor dissenters. I think that this was not 0:06:20.120 --> 0:06:22.240 done in good faith, that this is not going to 0:06:22.279 --> 0:06:25.080 be applied narrowly, and that this is going to mean 0:06:25.160 --> 0:06:28.080 tens of thousands of people being excluded who would never 0:06:28.160 --> 0:06:31.159 have been excluded in the past, and that when the 0:06:31.440 --> 0:06:35.159 dust settled on this regulation, you're going to see a 0:06:35.320 --> 0:06:40.159 great amount of human catastrophes in terms of people not 0:06:40.279 --> 0:06:42.520 being able to come into the United States that usually 0:06:42.520 --> 0:06:44.919 were able to come. The new policy is designed to 0:06:44.960 --> 0:06:48.480 screen out Green card applicants seen as being at risk 0:06:48.560 --> 0:06:52.760 of becoming dependent on government benefits. It expands the definition 0:06:52.760 --> 0:06:56.320 of public charge and gives officials broad power to determine 0:06:56.320 --> 0:06:59.200 that someone is at risk of falling into that category. 0:06:59.480 --> 0:07:03.080 To make that determination, Department of Homeland Security officials can 0:07:03.120 --> 0:07:08.120 consider a list of factors including age, health, education, English 0:07:08.200 --> 0:07:12.960 language proficiency, family size, wealth, and credit scores. In a 0:07:13.040 --> 0:07:16.480 five to four vote along ideological lines, the court blocked 0:07:16.480 --> 0:07:19.040 to New York federal judges ruling that was keeping the 0:07:19.120 --> 0:07:22.679 policy from taking effect. What a legal fight goes forward, 0:07:23.600 --> 0:07:28.280 so Leon explained the argument of those states and immigrant 0:07:28.360 --> 0:07:31.680 groups who are challenging the new Wealth test well, the 0:07:31.840 --> 0:07:34.880 argument of the people challenging the immigration tests that they 0:07:34.920 --> 0:07:37.760 say that many of the factors that were added were 0:07:37.800 --> 0:07:42.160 not factors that Congress actually wanted added when it most 0:07:42.240 --> 0:07:45.080 recently popying them as issue a public charge in nine 0:07:45.960 --> 0:07:49.080 and so they're what they say is, look, a Congress 0:07:49.120 --> 0:07:52.080 didn't want immigrants using certain benefits, they simply would have 0:07:52.120 --> 0:07:55.520 excluded immigrants from using those benefits. You can't come in 0:07:55.560 --> 0:07:58.720 after the fact in a regulation and play a gotcha 0:07:58.760 --> 0:08:02.200 game where somebody used a benefit that the Congress allowed 0:08:02.200 --> 0:08:05.280 them to use, that this would make them a public charge. 0:08:05.400 --> 0:08:08.360 The idea being that the entire point of the public 0:08:08.440 --> 0:08:11.640 charge is to be using things that the Congress didn't 0:08:11.680 --> 0:08:14.200 want immigrants to use, but that if the Congress did 0:08:14.200 --> 0:08:17.080 want immigrants to use these benefits, the whole point of 0:08:17.120 --> 0:08:19.240 it being that they didn't consider that a bad thing. 0:08:19.920 --> 0:08:23.960 And so from that perspective, that main argument, plus the 0:08:24.000 --> 0:08:27.360 fact that they broughten the test out to include factors 0:08:27.400 --> 0:08:32.880 like disability, English language knowledge, and credit scores, all things 0:08:32.960 --> 0:08:37.480 that really uh disadvantage knew immigrants of the United States 0:08:37.480 --> 0:08:39.440 who may not know English, but they have a skills 0:08:39.760 --> 0:08:42.920 that certainly makes it very likely that they'll earn money 0:08:43.040 --> 0:08:45.680 or credit score. Nobody comes in with a good credit score. 0:08:45.679 --> 0:08:47.760 People come in with a zero credit score and they 0:08:47.800 --> 0:08:50.960 have to earn it. Those kinds of things become quite 0:08:50.960 --> 0:08:54.120 onerous if they're going to be applied literally and people 0:08:54.160 --> 0:08:56.720 are going to get rejected for these things. So what 0:08:56.840 --> 0:09:00.959 happens next in the litigation? So now the litigation works 0:09:00.960 --> 0:09:03.160 its way through. The second circuit is kind of the 0:09:03.160 --> 0:09:05.840 one that's most developed here, and they will make a 0:09:05.920 --> 0:09:10.240 merits determination and assuming they maintain their merits determination that 0:09:10.320 --> 0:09:13.600 the rule is invalid, then the stay still remains in 0:09:13.679 --> 0:09:17.240 place unless the Supreme Court denied SIRT on the public 0:09:17.320 --> 0:09:21.120 charge case, which is very unlikely, or until the final 0:09:21.200 --> 0:09:24.480 decision of the Supreme Court, So most likely for about 0:09:24.520 --> 0:09:27.319 a year a year and a half, the Supreme Court 0:09:27.440 --> 0:09:30.720 is allowing this public charge rule to take place, to 0:09:30.760 --> 0:09:33.720 take into effect. Which will be interesting because at least 0:09:33.800 --> 0:09:36.520 during this time period, we will have much more anecdotal 0:09:36.559 --> 0:09:39.280 evidence that can be provided to the the Supreme Court on 0:09:39.360 --> 0:09:42.840 the types of people that are being denied visas under 0:09:42.880 --> 0:09:46.640 this that weren't being denied visas before. In within the injunction, 0:09:46.840 --> 0:09:50.079 part of the test is whether they're likely to succeed 0:09:50.160 --> 0:09:53.439 on the merits. So does this mean that those five 0:09:53.559 --> 0:09:57.640 justices are most likely going to allow the Trump administration 0:09:57.880 --> 0:10:01.240 to go forward with this inner wealth test when it 0:10:01.320 --> 0:10:03.960 does come back to the court. I think that's a 0:10:04.080 --> 0:10:06.680 very fair assumption to make here. I don't think they 0:10:06.679 --> 0:10:08.560 would have stayed the rule if they thought there was 0:10:08.600 --> 0:10:11.240 something wrong with the rule. But I think the complication 0:10:11.320 --> 0:10:14.360 with this public charge case is that it is so 0:10:14.520 --> 0:10:17.680 broad that I think the rule is so broad and 0:10:17.720 --> 0:10:20.320 the application is so broad that I think what the 0:10:20.360 --> 0:10:22.720 court really wants to do in a rule like this 0:10:22.840 --> 0:10:26.079 is to say sub parts of this seemed perfectly reasonable. 0:10:26.720 --> 0:10:28.880 You know, if somebody has been living in public housing 0:10:28.920 --> 0:10:31.160 for the last thirty six months, why aren't they a 0:10:31.160 --> 0:10:34.080 public charge when they apply for a green card? That 0:10:34.160 --> 0:10:37.800 might be a very reasonable thing to ask, as opposed 0:10:37.840 --> 0:10:40.240 to if somebody doesn't speak English, why does that make 0:10:40.280 --> 0:10:43.080 them a public charge? And so what they're trying to 0:10:43.120 --> 0:10:46.800 gear the litigants toward is make those kinds of claims, 0:10:46.840 --> 0:10:50.560 the narrower kinds about specific classes of people being denied, 0:10:51.120 --> 0:10:53.439 rather than the entirety of the rules. So I think 0:10:53.440 --> 0:10:55.960 they will uphold the entirety of the rule. But that 0:10:56.040 --> 0:10:58.840 doesn't speak to the sub classes that are likely to 0:10:58.920 --> 0:11:03.079 form of of people being denied under this rule. So 0:11:03.320 --> 0:11:08.400 we've discussed before Leon how the Supreme Court is also 0:11:08.480 --> 0:11:13.120 allowing President Trump to build his wall with funds that 0:11:13.200 --> 0:11:17.360 were diverted from the military until that case goes through 0:11:17.360 --> 0:11:21.320 the courts. Now we have this, So does it seem 0:11:21.360 --> 0:11:25.120 to you as if the Court is just willing to 0:11:25.240 --> 0:11:31.239 let the Trump administration take these huge leaps in immigration? 0:11:32.280 --> 0:11:34.559 I mean, I think it's become evident when you look 0:11:34.600 --> 0:11:38.240 at the travel band case, the asylum case, the border 0:11:38.280 --> 0:11:43.160 wall case, and now this public charge case that the 0:11:43.200 --> 0:11:47.600 institutional litigation that is designed to stop the president from 0:11:47.640 --> 0:11:54.320 at least implementing wholeheartedly reforms on immigration is not going 0:11:54.400 --> 0:11:56.920 to be welcomed by the Supreme Court. The question is, 0:11:56.960 --> 0:11:59.360 does the Supreme Court have the band with to cover 0:11:59.480 --> 0:12:01.440 all of the alsos that are happening on all of 0:12:01.480 --> 0:12:04.440 the different immigration thanks, because otherwise it's gonna end up 0:12:04.440 --> 0:12:08.400 becoming the Supreme Court of Immigration. But when the Supreme 0:12:08.440 --> 0:12:11.080 Court is taking cases, it is saying we want the 0:12:11.080 --> 0:12:16.640 Trump administration's immigration priorities to continue. And that is quite 0:12:16.840 --> 0:12:21.679 a I think a set of events that perhaps was 0:12:21.880 --> 0:12:27.800 not anticipated by the litigants making these cases, and it's 0:12:27.840 --> 0:12:30.440 going to require at some point, especially if the president 0:12:30.520 --> 0:12:35.400 is re elected, a sort of redetermination as to whether 0:12:35.480 --> 0:12:39.400 litigation is the right thing to do in these broader cases, 0:12:39.440 --> 0:12:42.839 because maybe you'll be creating bad president that will last 0:12:42.840 --> 0:12:45.839 a lifetime that you'd rather not create in the situation. 0:12:46.360 --> 0:12:50.000 Of course, now that there are more conservative judges on 0:12:50.520 --> 0:12:54.319 the circuit courts, a lot of the circuit court opinions 0:12:54.360 --> 0:12:58.720 may now go against immigrants. Yeah, that's absolutely correct, and 0:12:58.840 --> 0:13:02.600 that's why personally, when I've done these types of cases, 0:13:02.640 --> 0:13:05.160 I've always tried to stick to the application of the 0:13:05.240 --> 0:13:09.200 law to a certain specific individual, because it's much easier 0:13:09.200 --> 0:13:11.440 to make those cases, and the court looks at those, 0:13:11.520 --> 0:13:14.600 and even conservative judges will say, how could you possibly 0:13:14.600 --> 0:13:17.120 have done that? It's much easier when you're going to 0:13:17.240 --> 0:13:19.920 the court in those instances. When you're doing these broader 0:13:20.520 --> 0:13:23.880 policy challenges. A lot of times both sides go into 0:13:23.880 --> 0:13:27.040 their camps and the decision is just, you know, we 0:13:27.040 --> 0:13:29.360 we decide the decision first and then we come up 0:13:29.360 --> 0:13:31.719 with the law to figure that out later. And you're 0:13:31.760 --> 0:13:35.120 starting to see some of that on both sides of 0:13:35.120 --> 0:13:38.880 the equation here, because I wonder when you have a 0:13:38.960 --> 0:13:44.400 Supreme Court that seems so willing to expand the power 0:13:44.440 --> 0:13:49.400 of the executive over the judiciary, what is left as 0:13:49.440 --> 0:13:52.880 a check on the executive. You know, if if Congress 0:13:52.920 --> 0:13:56.920 can't do it with withholding funds, and if the Supreme 0:13:57.000 --> 0:14:01.679 Court won't do it, then there's no is there. Correct. 0:14:01.720 --> 0:14:04.720 It becomes very complicated because there are these two views 0:14:04.760 --> 0:14:07.640 of the world, and it's been an unresolved issue in 0:14:07.679 --> 0:14:11.400 immigration for about fifty years. Is there are some people 0:14:11.520 --> 0:14:14.240 and this I'm talking now uniquely immigration, not to other 0:14:14.280 --> 0:14:17.480 issues where the president claims broad powers. I'm talking just 0:14:17.559 --> 0:14:20.840 about immigration. There have been people on both sides of 0:14:20.920 --> 0:14:23.640 the island. President Obama made these arguments when it was 0:14:23.680 --> 0:14:26.800 time for Dhaka and Dappa that say, when the president 0:14:26.840 --> 0:14:30.360 does something on immigration, it's broad power that cannot be 0:14:30.440 --> 0:14:34.240 reviewed by the courts. And then there are others who say, no, no, no, no. 0:14:34.360 --> 0:14:38.560 The courts have as much say, scrutinizing these immigration policies 0:14:38.840 --> 0:14:42.240 as they do anything else. And if the president gets 0:14:42.280 --> 0:14:45.560 made here that the president does have these broad power 0:14:45.600 --> 0:14:49.000 as well, that's potentially fine for this president. But of 0:14:49.040 --> 0:14:51.000 course then the court would say that that would happen 0:14:51.040 --> 0:14:55.360 for a subsequent president they may not like. But then similarly, 0:14:55.960 --> 0:14:58.480 you know, a president who puts in policies that will 0:14:58.560 --> 0:15:02.040 exclude many, many, many people will while that person is 0:15:02.080 --> 0:15:07.520 president be creating all kinds of upheaval and difficult times 0:15:07.600 --> 0:15:10.800 for those individuals that immigration lawyers might not have wanted 0:15:11.200 --> 0:15:13.680 and should shouldn't have brought those lawsuits if they knew 0:15:13.720 --> 0:15:15.960 this was going to be the outcome. And so these 0:15:16.000 --> 0:15:19.240 are the difficult balances. But yes, right now it seems 0:15:19.240 --> 0:15:22.320 like the Supreme Court is leaning towards sayings that on immigration, 0:15:22.800 --> 0:15:26.200 the president has extremely broad power that the Court is 0:15:26.280 --> 0:15:31.800 not going to question unless there's some really adverse outcome 0:15:31.880 --> 0:15:35.720 here that that's not being presented in the litigation. So 0:15:36.280 --> 0:15:39.960 that seems to bode ill for the doctor decision that 0:15:40.000 --> 0:15:43.520 we're expecting this term, right. I mean, the way I've 0:15:43.520 --> 0:15:46.120 always thought this doctor decision will come down and we'll 0:15:46.120 --> 0:15:49.040 will wait and see, is that the court will say, look, 0:15:49.160 --> 0:15:53.080 President Obama had the power to make DOCTA and President 0:15:53.120 --> 0:15:56.800 Trump thus has the power to extinguish DOCTA, and neither 0:15:56.960 --> 0:15:59.760 is questioned by the courts. I think that's sort of 0:15:59.800 --> 0:16:02.280 a a split decision in the sense that a new 0:16:02.280 --> 0:16:05.680 president could reinstall data. What would be sort of the 0:16:05.800 --> 0:16:09.680 overreach would be if the court said and President Obama 0:16:09.680 --> 0:16:11.880 didn't have the authority to make data. I don't know 0:16:11.920 --> 0:16:14.160 if they have to go all the way there, but 0:16:14.320 --> 0:16:17.320 if they just leave it at the president has broad 0:16:17.360 --> 0:16:21.040 power either way, then that that gets rid of data, 0:16:21.440 --> 0:16:25.000 and then it provides the sort of large prerogative for 0:16:25.160 --> 0:16:30.120 either president to have expensive immigration powers. Thanks for being 0:16:30.160 --> 0:16:33.600 on Zoomberg long Leon, that's Leon Fresco, a partner's hand 0:16:33.640 --> 0:16:33.960 and Knight