Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 1: President Trump has long complained about judges who issue injunctions
Speaker 1: that apply across the country. This includes activist judges who
Speaker 1: have issued nationwide injunctions prohibiting US from enforcing the immigration
Speaker 1: laws enacted even by Congress. Now, the Supreme Court has
Speaker 1: backed him up, lifting a nationwide injunction and letting the
Speaker 1: administration start enforcing its new immigrant wealth test that's designed
Speaker 1: to screen out Green card applicants seen as being at
Speaker 1: risk of becoming dependent on government benefits. Joining me is
Speaker 1: Leon Fresco, a partnered Hollandon Knight and formerly head of
Speaker 1: the Office of Immigration Litigation at the Department of Justice.
Speaker 1: Describe what Trump's new immigrant wealth test is and how
Speaker 1: it differs from the old tests. Sure, the test is
Speaker 1: called the public charge test, and since the teen hundreds,
Speaker 1: Congress actually has had a statute called the Public Charge Statute.
Speaker 1: And what that statute has said is is that if
Speaker 1: a person is coming to the United States from abroad,
Speaker 1: they can be denied entry into the United States if
Speaker 1: the person who's adjudicating their entry determines that they're likely
Speaker 1: to be a public charge, And what public charge has
Speaker 1: historically meant is that they will be reliant on the
Speaker 1: government dole or fisk in order to survive in the
Speaker 1: United States, taxpayers will have to ensure that these individuals
Speaker 1: eat and get support and housing, etcetera. Now, what the
Speaker 1: Trump administration has done is it has in two thousand
Speaker 1: and eighteen decided to change the implementing regulations in order
Speaker 1: to define much more broadly the types of people who
Speaker 1: can be called public charges and thus to be able
Speaker 1: to exclude more foreigners from entering the United States. So
Speaker 1: are they determining in advance who might be a public charge?
Speaker 1: How would they do that? So there's three ways in
Speaker 1: which this gets implemented. The first way it gets implemented
Speaker 1: is for individuals who are abroad who are applying for
Speaker 1: visas to come into the United States. So, when someone
Speaker 1: is abroad and they either want to come because they're
Speaker 1: marrying a US citizen or they have a job, that's
Speaker 1: petition for them to come on an employment based green card.
Speaker 1: The counselor adjudicator when you go to pick up your
Speaker 1: visa at a U. S consulate can make a determination
Speaker 1: as to who is a public charge and if they
Speaker 1: think that person is likely to become a public chart,
Speaker 1: they can deny them the visa right there. The second
Speaker 1: way is that someone is already here, but they're here
Speaker 1: on what's called a non immigrant visa, meaning they came
Speaker 1: as a visitor, or as a student, or as a
Speaker 1: temporary worker, and now they want to apply for a
Speaker 1: green card. Maybe they married a US citizen, or maybe
Speaker 1: a company has asked for them to stay permanently. In
Speaker 1: that situation, that determination can also be rejected if an
Speaker 1: adjudicator here in the United States determined that that person
Speaker 1: is going to become a public charge. And then the
Speaker 1: third way is for individuals who are here on one
Speaker 1: type of visa who wants to change to a second
Speaker 1: type of visa, that application may be denied now if
Speaker 1: the person is determined to be a public charge in
Speaker 1: the future. Now, a New York federal judge blocked the
Speaker 1: policy from going into effect just while the legal fight
Speaker 1: goes forward. So how big a win is this for
Speaker 1: the Trump administration for the Supreme Court to lift that
Speaker 1: injunction and let the policy go forward. Well, by the
Speaker 1: very terms of the arguments that Trump administration was making
Speaker 1: to the New York Court of Appeals to the Second
Speaker 1: Circuit Court of Appeals. They were saying that the harm
Speaker 1: that they would suffer if this rule had been enjoined,
Speaker 1: even for a few more months, was that they would
Speaker 1: not be able to reach people from coming to the
Speaker 1: United States that they would otherwise have wanted to reject.
Speaker 1: And so this is a big win for them from
Speaker 1: that perspective that they will now be able in these
Speaker 1: interim months where the litigation is pending, to reject people
Speaker 1: from the United States that would if otherwise, had to
Speaker 1: have been accepted had this rule not been implemented. So
Speaker 1: the Court as a whole gave no explanation for its order,
Speaker 1: but Justice Neil Gorst, writing for himself, and Justice Clarence Thomas,
Speaker 1: said the Court needs to curb the power of federal
Speaker 1: trial judges to issue these nationwide orders that block a
Speaker 1: government initiative. So is this decision by the Court more
Speaker 1: about the wealth test itself or stopping these nationwide injunctions.
Speaker 1: I think there's quite a mix of both there. And
Speaker 1: I think what may have frustrated the five justices is
Speaker 1: it be one thing if there was litigation about, for instance,
Speaker 1: the applicability of the public charge doctrine two people who
Speaker 1: didn't speak English, or the people with disabilities or the
Speaker 1: people with low credit scores or something like that a
Speaker 1: specific test. But what they express frustration about, at least
Speaker 1: in the concurring opinion, is that the rule was enjoined
Speaker 1: in its entirety as to every single individual, and they're
Speaker 1: saying it cannot be the case that every single aspect
Speaker 1: of this rule is in violation of the statute, and
Speaker 1: because of that, that challenge that tries to make it
Speaker 1: completely invalid should be stayed. This was a split decision
Speaker 1: along ideological lines. Why along ideological lines in a case
Speaker 1: like this are we expecting to see ideological splits in
Speaker 1: the immigration cases going forward? Sure, I think that the
Speaker 1: problem here and it just all comes down to sort
Speaker 1: of what you think is good faith or not good faith.
Speaker 1: If you think that this regulation was done in good faith,
Speaker 1: then there would be no reason to enjoin it in
Speaker 1: its entirety because you think, okay, well, this regulation is
Speaker 1: only going to be applied in very narrow circumstances, and
Speaker 1: even those narrow circumstances, it's applied incorrectly. People can go
Speaker 1: to court and challenge it and that will be fine.
Speaker 1: But the poor dissenters. I think that this was not
Speaker 1: done in good faith, that this is not going to
Speaker 1: be applied narrowly, and that this is going to mean
Speaker 1: tens of thousands of people being excluded who would never
Speaker 1: have been excluded in the past, and that when the
Speaker 1: dust settled on this regulation, you're going to see a
Speaker 1: great amount of human catastrophes in terms of people not
Speaker 1: being able to come into the United States that usually
Speaker 1: were able to come. The new policy is designed to
Speaker 1: screen out Green card applicants seen as being at risk
Speaker 1: of becoming dependent on government benefits. It expands the definition
Speaker 1: of public charge and gives officials broad power to determine
Speaker 1: that someone is at risk of falling into that category.
Speaker 1: To make that determination, Department of Homeland Security officials can
Speaker 1: consider a list of factors including age, health, education, English
Speaker 1: language proficiency, family size, wealth, and credit scores. In a
Speaker 1: five to four vote along ideological lines, the court blocked
Speaker 1: to New York federal judges ruling that was keeping the
Speaker 1: policy from taking effect. What a legal fight goes forward,
Speaker 1: so Leon explained the argument of those states and immigrant
Speaker 1: groups who are challenging the new Wealth test well, the
Speaker 1: argument of the people challenging the immigration tests that they
Speaker 1: say that many of the factors that were added were
Speaker 1: not factors that Congress actually wanted added when it most
Speaker 1: recently popying them as issue a public charge in nine
Speaker 1: and so they're what they say is, look, a Congress
Speaker 1: didn't want immigrants using certain benefits, they simply would have
Speaker 1: excluded immigrants from using those benefits. You can't come in
Speaker 1: after the fact in a regulation and play a gotcha
Speaker 1: game where somebody used a benefit that the Congress allowed
Speaker 1: them to use, that this would make them a public charge.
Speaker 1: The idea being that the entire point of the public
Speaker 1: charge is to be using things that the Congress didn't
Speaker 1: want immigrants to use, but that if the Congress did
Speaker 1: want immigrants to use these benefits, the whole point of
Speaker 1: it being that they didn't consider that a bad thing.
Speaker 1: And so from that perspective, that main argument, plus the
Speaker 1: fact that they broughten the test out to include factors
Speaker 1: like disability, English language knowledge, and credit scores, all things
Speaker 1: that really uh disadvantage knew immigrants of the United States
Speaker 1: who may not know English, but they have a skills
Speaker 1: that certainly makes it very likely that they'll earn money
Speaker 1: or credit score. Nobody comes in with a good credit score.
Speaker 1: People come in with a zero credit score and they
Speaker 1: have to earn it. Those kinds of things become quite
Speaker 1: onerous if they're going to be applied literally and people
Speaker 1: are going to get rejected for these things. So what
Speaker 1: happens next in the litigation? So now the litigation works
Speaker 1: its way through. The second circuit is kind of the
Speaker 1: one that's most developed here, and they will make a
Speaker 1: merits determination and assuming they maintain their merits determination that
Speaker 1: the rule is invalid, then the stay still remains in
Speaker 1: place unless the Supreme Court denied SIRT on the public
Speaker 1: charge case, which is very unlikely, or until the final
Speaker 1: decision of the Supreme Court, So most likely for about
Speaker 1: a year a year and a half, the Supreme Court
Speaker 1: is allowing this public charge rule to take place, to
Speaker 1: take into effect. Which will be interesting because at least
Speaker 1: during this time period, we will have much more anecdotal
Speaker 1: evidence that can be provided to the the Supreme Court on
Speaker 1: the types of people that are being denied visas under
Speaker 1: this that weren't being denied visas before. In within the injunction,
Speaker 1: part of the test is whether they're likely to succeed
Speaker 1: on the merits. So does this mean that those five
Speaker 1: justices are most likely going to allow the Trump administration
Speaker 1: to go forward with this inner wealth test when it
Speaker 1: does come back to the court. I think that's a
Speaker 1: very fair assumption to make here. I don't think they
Speaker 1: would have stayed the rule if they thought there was
Speaker 1: something wrong with the rule. But I think the complication
Speaker 1: with this public charge case is that it is so
Speaker 1: broad that I think the rule is so broad and
Speaker 1: the application is so broad that I think what the
Speaker 1: court really wants to do in a rule like this
Speaker 1: is to say sub parts of this seemed perfectly reasonable.
Speaker 1: You know, if somebody has been living in public housing
Speaker 1: for the last thirty six months, why aren't they a
Speaker 1: public charge when they apply for a green card? That
Speaker 1: might be a very reasonable thing to ask, as opposed
Speaker 1: to if somebody doesn't speak English, why does that make
Speaker 1: them a public charge? And so what they're trying to
Speaker 1: gear the litigants toward is make those kinds of claims,
Speaker 1: the narrower kinds about specific classes of people being denied,
Speaker 1: rather than the entirety of the rules. So I think
Speaker 1: they will uphold the entirety of the rule. But that
Speaker 1: doesn't speak to the sub classes that are likely to
Speaker 1: form of of people being denied under this rule. So
Speaker 1: we've discussed before Leon how the Supreme Court is also
Speaker 1: allowing President Trump to build his wall with funds that
Speaker 1: were diverted from the military until that case goes through
Speaker 1: the courts. Now we have this, So does it seem
Speaker 1: to you as if the Court is just willing to
Speaker 1: let the Trump administration take these huge leaps in immigration?
Speaker 1: I mean, I think it's become evident when you look
Speaker 1: at the travel band case, the asylum case, the border
Speaker 1: wall case, and now this public charge case that the
Speaker 1: institutional litigation that is designed to stop the president from
Speaker 1: at least implementing wholeheartedly reforms on immigration is not going
Speaker 1: to be welcomed by the Supreme Court. The question is,
Speaker 1: does the Supreme Court have the band with to cover
Speaker 1: all of the alsos that are happening on all of
Speaker 1: the different immigration thanks, because otherwise it's gonna end up
Speaker 1: becoming the Supreme Court of Immigration. But when the Supreme
Speaker 1: Court is taking cases, it is saying we want the
Speaker 1: Trump administration's immigration priorities to continue. And that is quite
Speaker 1: a I think a set of events that perhaps was
Speaker 1: not anticipated by the litigants making these cases, and it's
Speaker 1: going to require at some point, especially if the president
Speaker 1: is re elected, a sort of redetermination as to whether
Speaker 1: litigation is the right thing to do in these broader cases,
Speaker 1: because maybe you'll be creating bad president that will last
Speaker 1: a lifetime that you'd rather not create in the situation.
Speaker 1: Of course, now that there are more conservative judges on
Speaker 1: the circuit courts, a lot of the circuit court opinions
Speaker 1: may now go against immigrants. Yeah, that's absolutely correct, and
Speaker 1: that's why personally, when I've done these types of cases,
Speaker 1: I've always tried to stick to the application of the
Speaker 1: law to a certain specific individual, because it's much easier
Speaker 1: to make those cases, and the court looks at those,
Speaker 1: and even conservative judges will say, how could you possibly
Speaker 1: have done that? It's much easier when you're going to
Speaker 1: the court in those instances. When you're doing these broader
Speaker 1: policy challenges. A lot of times both sides go into
Speaker 1: their camps and the decision is just, you know, we
Speaker 1: we decide the decision first and then we come up
Speaker 1: with the law to figure that out later. And you're
Speaker 1: starting to see some of that on both sides of
Speaker 1: the equation here, because I wonder when you have a
Speaker 1: Supreme Court that seems so willing to expand the power
Speaker 1: of the executive over the judiciary, what is left as
Speaker 1: a check on the executive. You know, if if Congress
Speaker 1: can't do it with withholding funds, and if the Supreme
Speaker 1: Court won't do it, then there's no is there. Correct.
Speaker 1: It becomes very complicated because there are these two views
Speaker 1: of the world, and it's been an unresolved issue in
Speaker 1: immigration for about fifty years. Is there are some people
Speaker 1: and this I'm talking now uniquely immigration, not to other
Speaker 1: issues where the president claims broad powers. I'm talking just
Speaker 1: about immigration. There have been people on both sides of
Speaker 1: the island. President Obama made these arguments when it was
Speaker 1: time for Dhaka and Dappa that say, when the president
Speaker 1: does something on immigration, it's broad power that cannot be
Speaker 1: reviewed by the courts. And then there are others who say, no, no, no, no.
Speaker 1: The courts have as much say, scrutinizing these immigration policies
Speaker 1: as they do anything else. And if the president gets
Speaker 1: made here that the president does have these broad power
Speaker 1: as well, that's potentially fine for this president. But of
Speaker 1: course then the court would say that that would happen
Speaker 1: for a subsequent president they may not like. But then similarly,
Speaker 1: you know, a president who puts in policies that will
Speaker 1: exclude many, many, many people will while that person is
Speaker 1: president be creating all kinds of upheaval and difficult times
Speaker 1: for those individuals that immigration lawyers might not have wanted
Speaker 1: and should shouldn't have brought those lawsuits if they knew
Speaker 1: this was going to be the outcome. And so these
Speaker 1: are the difficult balances. But yes, right now it seems
Speaker 1: like the Supreme Court is leaning towards sayings that on immigration,
Speaker 1: the president has extremely broad power that the Court is
Speaker 1: not going to question unless there's some really adverse outcome
Speaker 1: here that that's not being presented in the litigation. So
Speaker 1: that seems to bode ill for the doctor decision that
Speaker 1: we're expecting this term, right. I mean, the way I've
Speaker 1: always thought this doctor decision will come down and we'll
Speaker 1: will wait and see, is that the court will say, look,
Speaker 1: President Obama had the power to make DOCTA and President
Speaker 1: Trump thus has the power to extinguish DOCTA, and neither
Speaker 1: is questioned by the courts. I think that's sort of
Speaker 1: a a split decision in the sense that a new
Speaker 1: president could reinstall data. What would be sort of the
Speaker 1: overreach would be if the court said and President Obama
Speaker 1: didn't have the authority to make data. I don't know
Speaker 1: if they have to go all the way there, but
Speaker 1: if they just leave it at the president has broad
Speaker 1: power either way, then that that gets rid of data,
Speaker 1: and then it provides the sort of large prerogative for
Speaker 1: either president to have expensive immigration powers. Thanks for being
Speaker 1: on Zoomberg long Leon, that's Leon Fresco, a partner's hand
Speaker 1: and Knight