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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: President Joe Biden is expected to announce an executive action

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Speaker 2: that would give undocumented immigrants who are married to US

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Speaker 2: citizens a path to citizenship. This is Biden's last executive action,

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Speaker 2: putting in place a restrictive new asylum band is being

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Speaker 2: challenged in the courts. Joining me is immigration law expertly

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Speaker 2: on Fresco, a partner at Holland and Knight. Leon tell

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Speaker 2: us what you know about this new executive order on immigration.

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Speaker 1: So tomorrow there's going to be an announcement by the

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Speaker 1: Biden administration which will take what is estimated to be

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Speaker 1: about a million people who are here without lawful status.

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Speaker 1: What they did was they crossed the border illegally. But

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Speaker 1: after they crossed the border illegally, they married a US citizen.

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Speaker 1: And so there's this very often misunderstood part of the

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Speaker 1: law where people think, oh, if you just marry a

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Speaker 1: US citizen, you're fine, you can get a green card.

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Speaker 1: But that's actually not true. That's only true for people

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Speaker 1: who overstaid a visa that they entered in lawfully. But

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Speaker 1: if you actually walk across the border illegally, you actually

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Speaker 1: cannot get a green card. You have to leave the

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Speaker 1: United States and apply for a waiver and hope you

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Speaker 1: get it, And so a lot of people won't take

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Speaker 1: that risk. Well, the Biden administration is announcing a process

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Speaker 1: called parole in place, which is saying you no longer

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Speaker 1: have to leave the country. You can stay here in America,

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Speaker 1: and we will parole you in the country, meaning we

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Speaker 1: will pretend like you entered in legally, so that you

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Speaker 1: now have the ability to apply for a green card

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Speaker 1: based on this marriage. And so that will literally give

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Speaker 1: a past the citizenship to about a million people who

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Speaker 1: did not have it previously.

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Speaker 2: Are they giving them any more rights than they had before,

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Speaker 2: or are they just saying you can do it here.

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Speaker 2: You don't have to go back to your home country.

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Speaker 1: So the right that they're giving them is the right

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Speaker 1: to do it here. Because the point is that ability

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Speaker 1: is not exactly clear in the law whether it exists

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Speaker 1: or not, which is, can you parole somebody to the

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Speaker 1: parole Here's what a parole is. People think of parole

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Speaker 1: with during the normal definition of the word, which is

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Speaker 1: you're in prison, you get let out early. But in immigration,

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Speaker 1: that's not what a parole is. In immigration, what a

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Speaker 1: parole is is a permission flip to be let in

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Speaker 1: the United States even though you don't have any reason

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Speaker 1: to be here. But what happens is that permission slip

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Speaker 1: can be revoked at any time. But usually that permission

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Speaker 1: flip is given to you at the border, at a

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Speaker 1: board of entry at the border when you apply, and

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Speaker 1: it's not given to you from inside the country. Well,

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Speaker 1: a few years ago, there was this thing invented called

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Speaker 1: parole in place. The idea was you didn't have to

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Speaker 1: be given this permission slip at the border, you didn't

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Speaker 1: have to leave and come back. You'd literally be given

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Speaker 1: it while you were inside the United States because there

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Speaker 1: was nothing technically in the law that prohibited it. But

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Speaker 1: why couldn't it be done? And it was done in

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Speaker 1: the context of people who crossed the border illegally, and

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Speaker 1: not just married US citizens, but literally married US citizens

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Speaker 1: who were in the military. There was a program that

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Speaker 1: was done during the Iraq War that said, look, if

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Speaker 1: you were going to go to the Iraq War, you

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Speaker 1: should not have to worry that your undocumented spouse would

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Speaker 1: be deported if you died or something bad happened. So

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Speaker 1: we're going to parole in place your undocumented spouse so

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Speaker 1: that they can have a path to a green card.

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Speaker 1: And that actually still is the law, which is nobody's

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Speaker 1: actually challenged that that if you were the undocumented spouse

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Speaker 1: of a US military person, that that person could get

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Speaker 1: a parole in place. So now what the Biden administration

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Speaker 1: would be doing is trying to expand this experiment to

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Speaker 1: everybody else, not just spouses of US military people, but

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Speaker 1: literally any US citizen. And so the question will be

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Speaker 1: obviously will there be lawsuits filed and will those lawsuits

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Speaker 1: be successful?

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Speaker 2: If you came here illegally and you married a US citizen,

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Speaker 2: does that normally get you citizenship when you go through

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Speaker 2: the process.

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Speaker 1: So only if you entered legally and overstay your visa,

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Speaker 1: could a marriage fix your situation? If you entered illegally,

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Speaker 1: if you cross the border without anybody detecting you, and

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Speaker 1: then you try to fix your situation by marrying a

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Speaker 1: US citizen, that actually requires you to apply for a

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Speaker 1: waiver at an embassy abroad and hope that that waiver

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Speaker 1: is granted to you in order to re enter. And

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Speaker 1: that is why many many people do not do that

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Speaker 1: because they are terrified that they will not be let

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Speaker 1: in because that's a discretionary waiver and if you don't

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Speaker 1: get it, you have no legal recourse, you cannot see,

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Speaker 1: you cannot do anything. And so most people who cross

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Speaker 1: the border and marry a US citizen are not willing

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Speaker 1: to take that process, and so this would obviate that

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Speaker 1: need and would allow them to apply for a Greek

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Speaker 1: Card without leaving the United States. This would allow them

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Speaker 1: to do it from within the United States.

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Speaker 2: Being married to a US citizen does that, you know,

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Speaker 2: weigh in your favor when they're considering whether or not

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Speaker 2: to give you citizenship.

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Speaker 1: So there's a category of getting a green card called

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Speaker 1: spouse of a US citizen. So in any case we're

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Speaker 1: a US citizen marry someone who is not a national

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Speaker 1: of the United States, as long as they follow all

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Speaker 1: the rules, that person can obtain lawful permanent residence. So

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Speaker 1: that exists. So anybody for who's a US citizen today

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Speaker 1: can go to Sweden or Namibia or Australia or wherever

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Speaker 1: and marry a foreign national. And so long as that

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Speaker 1: foreign national isn't a terrorist or a drug dealer or

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Speaker 1: something else, they can go through a process to get

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Speaker 1: that foreign lawful permanent residency. What this is changing is

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Speaker 1: just that there's a barrier that exists that that marriage

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Speaker 1: isn't enough to give the person lawful permanent residency in

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Speaker 1: a case where that person's knocking across the border illegally.

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Speaker 1: So in those cases, at the moment, it doesn't work.

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Speaker 1: You can't get a green card based on marrying a

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Speaker 1: US citizen. But what Biden would do is he would

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Speaker 1: change this so that you could get a green card

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Speaker 1: even if you crossed illegally and marry a US citizen.

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Speaker 2: So I mean, is it likely that most of those

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Speaker 2: one million people will be getting green cards?

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Speaker 1: Well, this is going to be the challenge. There's going

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Speaker 1: to be basically free challenges to this. First will be

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Speaker 1: will there be a court decision that enjoins this, and

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Speaker 1: you know, I'm sure there will be people that challenge

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Speaker 1: its state and perhaps other interested groups who challenge this

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Speaker 1: and say that it's illegal. Secondly, there is the election

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Speaker 1: coming up, and so let's say there's really a million

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Speaker 1: people who are applying for this process. If Trump wins,

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Speaker 1: there's no way that the million people who will have

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Speaker 1: joined the line in order to get their case process.

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Speaker 1: Probably almost none of them will have had their case

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Speaker 1: process by the time Trump comes into office, so he

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Speaker 1: can just cancel all of those applications. Let's say, thank

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Speaker 1: you very much for paying your fee. I don't care.

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Speaker 1: I'm canceling this and the story, and that's going to

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Speaker 1: be the end of that. And so that's problem number two.

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Speaker 1: And then problem number three would be, well, those people,

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Speaker 1: do they have other problems within their cases that would

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Speaker 1: prevent them from getting green cards? Maybe they broke other

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Speaker 1: laws while they were here because they were here without status.

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Speaker 1: Maybe they use fake IDs or other things like that.

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Speaker 1: On a case by case, it's not going to guarantee

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Speaker 1: that everybody could get those green cards. He would say

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Speaker 1: a lot of them could, but they're going to have

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Speaker 1: to wait long amounts of processing time, and they're going

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Speaker 1: to have to help to Biden get reelected.

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Speaker 2: I'm wondering, what are the reasons that you could give

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Speaker 2: in that situation for wanting a green card? I mean,

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Speaker 2: is it that you fled persecution or is it something different?

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Speaker 1: No, the only reason you have to give is I'm

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Speaker 1: married to a US citizen. That's it. That's enough. But

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Speaker 1: the problem is you can't give that reason right now,

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Speaker 1: if you've crossed the border illegally.

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Speaker 2: If Biden stays in office, then let's say, what, ninety

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Speaker 2: percent of the one million people will get.

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Speaker 1: Green cards eventually.

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Speaker 3: Correct.

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Speaker 1: That is correct, even when they ever get around to

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Speaker 1: doing both cases. But yes, correct.

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Speaker 2: Why is Biden issuing this order now when he's been

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Speaker 2: trying to show he's tough on illegal immigration. Just on

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Speaker 2: June fourth, he effectively halted asylum claims at the southern border.

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Speaker 1: The idea is this would be the equivalent of taking

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Speaker 1: the child's aspirin and putting it in some sort of

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Speaker 1: fruit juice or something, and that this would allow it

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Speaker 1: to be able to be swallowed what was being done

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Speaker 1: in the border in regard to asylum with also sort

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Speaker 1: of saying but look, at the same time, I'm doing

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Speaker 1: everything I can to help people who are in the

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Speaker 1: immigrants rights community and in the immigration world, to try

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Speaker 1: to show that I'm compassionate for people, et cetera, et cetera,

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Speaker 1: and maybe try to take some of the votes for

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Speaker 1: people who are the US citizens in these relationships and

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Speaker 1: try to, you know, get votes from those people and

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Speaker 1: their families and anybody else. I don't know, but I

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Speaker 1: think that's sort of the understanding of why this is

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Speaker 1: being done now, and.

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Speaker 2: What would a cause for states to challenge, be states

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Speaker 2: or counties or cities.

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Speaker 1: Sure, so, I think what you're going to see is

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Speaker 1: they're going to argue that the parole program is supposed

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Speaker 1: to be an individual, case by case determination in a

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Speaker 1: humanitarian circumstance, and any time you make these programmatic parole

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Speaker 1: decisions that are not case by case but that are

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Speaker 1: written large applying to categories of people, you can't do that.

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Speaker 1: And so that would be why it would be illegal.

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Speaker 1: And also that Congress specifically wrote these barriers to prevent

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Speaker 1: people who cross illegally from accessing green cards, such that

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Speaker 1: this wasn't a reason to give a parole. A parole

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Speaker 1: would be for a reason that's idiosyncratic and unique to

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Speaker 1: a specific person's case, because of something else that pops up.

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Speaker 1: But the statute is literally working the way it's intended,

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Speaker 1: which is to punish people who cross the border illegally

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Speaker 1: from being able to benefit from that, and that this

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Speaker 1: would actually then subvert the way that the statutory scheme

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Speaker 1: miss supposed to work. Now, the question is, well, the

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Speaker 1: state time standing to make those planes and so that

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Speaker 1: has to show that they're being damaged in some way

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Speaker 1: through this program, and we'll have to see what arguments

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Speaker 1: they can make for that, for how the states themselves

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Speaker 1: are being damaged by the giving of green cards in

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Speaker 1: these situations.

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Speaker 2: Okay, stay with me, Leon. Coming up next on the

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Speaker 2: Bloomberg Law Show, we'll discuss those lawsuits against Biden's executive

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Speaker 2: action effectively ending asylum at the Southern border, also the

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Speaker 2: Supreme Court's decision on immigration. I'm June Grosso and you're

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Speaker 2: listening to Bloomberg. President Joe Biden is expected to announce

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Speaker 2: another executive action on immigration that would give undocumented immigrants

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Speaker 2: who are married to US citizens a path to citizenship.

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Speaker 2: This is Biden's last executive action of June fourth, which

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Speaker 2: effectively halted asylum claims that the Southern Border is being

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Speaker 2: challenged in court by a coalition of immigrant advocacy groups.

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Speaker 2: The lawsuit filed last week is the first chest to

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Speaker 2: the legality of Biden's sweeping crackdown on the border. I've

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Speaker 2: been dug in an immigration law expertly on Fresco of

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Speaker 2: Holland and Knight. It took a while for the ACLU

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Speaker 2: to file a lawsuit against the executive order. We thought

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Speaker 2: it was going to happen right away.

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Speaker 1: Then they filed it on June twelfth in the DC

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Speaker 1: District Court. I think what happened was they were trying

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Speaker 1: to figure out, first of all, what venue to file

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Speaker 1: it in. And secondly, it wasn't just a Biden era announcement.

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Speaker 1: They needed to actually sue once the rule was published,

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Speaker 1: and so that delayed the lawsuit a little bit because

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Speaker 1: they needed to actually publish the rule itself so that

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Speaker 1: they could sew on the published rul, not just the

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Speaker 1: press release. And so that rule was published on June seventh,

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Speaker 1: and so they took the published rule on June seventh,

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Speaker 1: and they filed the lawsuit on June twelfth. Yeah, it

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Speaker 1: wasn't the normal immediate fed lawsuits that they do the

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Speaker 1: same day, but they did file it five days after

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Speaker 1: they could file it.

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Speaker 2: So they're saying that it's the same as what happened

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Speaker 2: with former President Trump and that this is against the

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Speaker 2: asylum laws.

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Speaker 1: Correct. What they're basically saying is that the asylum rule

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Speaker 1: that Biden has passed or that he promulgated the ban

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Speaker 1: basically violates the immigration and Nationality Act, because what they're

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Speaker 1: saying is that the statute is very clear in saying

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Speaker 1: that you can apply for asylum even if you crossed

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Speaker 1: in between the ports of entry illegally, and that any

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Speaker 1: band that you are putting in for that purpose isn't

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Speaker 1: permitted because the ban well, first of all, is a

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Speaker 1: ban on entry. It isn't a ban on people who

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Speaker 1: already entered, so it can't be used as a ban

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Speaker 1: on asylum. But also that the ban law which was

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Speaker 1: put in in the fifties was before the the asylum law.

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Speaker 1: So the asylum law which was put it in the

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Speaker 1: eighties that had this clearly contemplated that you can cross

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Speaker 1: it between the ports of entry, such that you couldn't

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Speaker 1: ban this. That would be the whole point of it.

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Speaker 1: And so those arguments were previously successful in the Ninth Circuit,

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Speaker 1: and so the question is will they be successful here

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Speaker 1: in the DC circuit.

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Speaker 2: I'm surprised that they didn't file in the Ninth Circuit,

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Speaker 2: where they were successful before and where there's a precedent.

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Speaker 1: I think the reason they filed it in the DC

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Speaker 1: circuit is because they believe that this is actually a

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Speaker 1: challenge to the expedited removal statutes. Now because of the

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Speaker 1: way the Biden administration yeared the statute, they wrote it

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Speaker 1: in a way that basically forced the challenge to have

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Speaker 1: to be in the DC District Because what happens is

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Speaker 1: that if you're challenging a change to the expedited removal

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Speaker 1: regime as opposed to just the two twelve f there's

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Speaker 1: a statue that says that has to be done in

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Speaker 1: the DC Court. And I think this is another reason

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Speaker 1: this lawsuit was delayed is because they realize that the

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Speaker 1: way the Biden administration crafted it, they took it out

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Speaker 1: of the jurisdiction of the Ninth Circuit and put it

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Speaker 1: in the jurisdiction of the DC District Court and then

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Speaker 1: ultimately the DC Circuit.

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Speaker 2: A lot of immigration law disputes happening leon and last

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Speaker 2: week the Supreme Court sided with the federal government in

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Speaker 2: a deportation notice dispute. Tell us about that.

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Speaker 1: So in that case, that's the case last week called

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Speaker 1: Compost Javes versus Garland. And so this is literally the

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Speaker 1: third Supreme Court case in the last three years that

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Speaker 1: has to do with this issue of what the notice

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Speaker 1: you give to immigrants is when you place them in

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Speaker 1: deportation proceedings and whether it's proper or not, then how

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Speaker 1: do you fix that? And this starts with the process

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Speaker 1: of when you enter America illegally, you immediately get a

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Speaker 1: piece of paper from the government. If the government finds you,

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Speaker 1: of course cause a notice to appear, and that notice

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Speaker 1: is supposed to have the time and the date and

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Speaker 1: the location of your proceeding. So what the first two

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Speaker 1: cases said is if you don't have that, the court

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Speaker 1: doesn't have jurisdiction over your case, and the court doesn't

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Speaker 1: start building toward this stopping of how long your case

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Speaker 1: has been pending because your case wouldn't have been pending

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Speaker 1: because you were not served properly with a notice that

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Speaker 1: had the time and the date. So in this third

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Speaker 1: instance we weren't debating this, but instead the case was about, well,

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Speaker 1: what happens if you get one of these notices that

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Speaker 1: at first doesn't have the time and the date, but

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Speaker 1: then you get a notice and that's not disputed. You

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Speaker 1: actually do get a notice that says, hey, the time

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Speaker 1: and the date of your proceeding is, say, March fifteen,

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Speaker 1: two pm, Chicago Immigration Cord. You know one one one

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Speaker 1: Jones three and then what happens if you don't show

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Speaker 1: up to that hearing? Can you say, well, I wasn't

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Speaker 1: given the right notice in the first instance, so Immigration

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Speaker 1: can never fix this ever again they have to serve

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Speaker 1: me with the right notice again, but personally they have

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Speaker 1: to come give me this personal correct piece of paper

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Speaker 1: or can they just give you a hearing notice? And

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Speaker 1: so what? Oddly enough, this decision says, and it's a

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Speaker 1: fight four decision, and Gorsich actually goes over to the

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Speaker 1: side of the liberal justices. But it's not enough because

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Speaker 1: Alito Robert Thomas kevanaugh Byrus for the five. They say

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Speaker 1: that even though you could go to this hearing if

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Speaker 1: you showed up and get it dismissed by saying that

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Speaker 1: the notice was wrong, you can't just not show up.

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Speaker 1: If you don't show up, you can be ordered removed.

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Speaker 1: And there's no way to fix this. So the fact

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Speaker 1: that you've got a bad notice up front doesn't give

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Speaker 1: you a right not to show up to the hearing

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Speaker 1: at all. If you got a notice telling you you

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Speaker 1: needed to show up to the hearing, that the government

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Speaker 1: could still deport you for not showing up to the hearing.

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Speaker 1: Because if you want to make the argument that you

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Speaker 1: got a bad notice, you still have to show up

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Speaker 1: and do it. You can't just not show up. And

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Speaker 1: I think this was probably more a process oriented decision

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Speaker 1: than a legal decision, because I don't see how you

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Speaker 1: can square this president with the first two decisions. But

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Speaker 1: I think they just didn't want people to take matters

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Speaker 1: in their own hands and just say, well, I don't

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Speaker 1: have to show up, and I never have to show up,

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Speaker 1: and I never have to be accountable to the immigration system.

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Speaker 1: So they said, no, you have to be accountable. You

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Speaker 1: have to show up, and if you want to make

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Speaker 1: arguments then about your notice being defective, go ahead and

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Speaker 1: do it then. But you can't just refuse to show up.

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Speaker 2: Samuel Alito, who wrote the majority opinion that it blocked

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Speaker 2: immigrants from seeking to challenge removal orders quote in perpetuity

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Speaker 2: based on arguments they could have raised in a hearing

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Speaker 2: that they chose to skip. Is it that they chose

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Speaker 2: to skip the hearing or they didn't know about the

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Speaker 2: hearing they didn't get the notice. But this is what's complicated,

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Speaker 2: is it's always complicated with immigration laws.

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Speaker 1: So here's the point. They did get a notice and

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Speaker 1: in order to trigger the inebsentia removal provision of the statute,

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Speaker 1: you have to show that you got a notice. But

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Speaker 1: what they're saying is that that notice that you have

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Speaker 1: to get to trigger the in absentia is not the

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Speaker 1: same notice you have to get to trigger the entire

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Speaker 1: removal proceeding. So this is what they said. So they said,

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Speaker 1: as long as you get any notice that clearly shows

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Speaker 1: that you were told, you have a hearing on March fifth,

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Speaker 1: twenty twenty four, at eleven am at the US Immigration

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Speaker 1: Court in Chicago one one one Jones Street. If you

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Speaker 1: got that notice, you've got to show up. It doesn't

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Speaker 1: matter that you didn't get the correct notice to appear

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Speaker 1: that's required by statutes, that has all the information. That's

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Speaker 1: the notice you need for the court to have jurisdiction

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Speaker 1: over your case. So if you didn't get that, you

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Speaker 1: can show up at your hearing and say, look, you've

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Speaker 1: got to dismiss my removal proceedings until I get the

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Speaker 1: right notice. You have that argument and you will win

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Speaker 1: that argument. But what Alito is saying is you can't

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Speaker 1: just not show up because the statute that allows the

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Speaker 1: US to deport you when you don't show up doesn't

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Speaker 1: require this notice. It just requires any notice. And so

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Speaker 1: if you got a notice that gave you a time

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Speaker 1: in a day, too bad. You lose.

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Speaker 2: One of the illegal immigrants in the case before the

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Speaker 2: Supreme Court said he has two children who were born

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Speaker 2: in the United States and they would face exceptional hardship

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Speaker 2: if he were deported. I'm just wondering as far as

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Speaker 2: immigrants who have children born here, does that help their

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Speaker 2: case against deportation.

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Speaker 1: So it depends again, So again more of the it depends.

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Speaker 1: There is a provision that allows you, if you've been

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Speaker 1: here ten years and you have US citizen children, that

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Speaker 1: you can say what's called cancelation of removal, meaning you

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Speaker 1: can ask the government to take sympathy for you and

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Speaker 1: give you an administrative relief called cancelation of removal that

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Speaker 1: allows you to say, if you can show it, here's

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Speaker 1: the key exceptional and unusual hardship to one of those

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Speaker 1: US that is in children. So, for instance, maybe one

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Speaker 1: of those children has some disease that can only be

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Speaker 1: treated in the US, something of that nature, and you're

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Speaker 1: their breadwinner, and you can if you go to that

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Speaker 1: home country, Hey, you're not gonna be able to make

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Speaker 1: money to pay for the treatment and be that treatments

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Speaker 1: not available in that country. And so that's that kind

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Speaker 1: of argument you can make, but you can't make it

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Speaker 1: if you don't show up to the hearing. So for

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Speaker 1: if somebody who wanted to make that argument, if they

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Speaker 1: didn't show up to the hearing, what Alito is saying

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Speaker 1: is too bad, you've lost. Now there's no way you're

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Speaker 1: going to be able to revivee your case to make

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Speaker 1: this argument when you didn't show up to the hearing.

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Speaker 2: Leam, what do you think of the reasoning of the

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Speaker 2: majority in this decision.

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Speaker 1: Well, the irony is that this is kind of a

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Speaker 1: bungle decision in the sense that what they're saying is

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Speaker 1: even if the court in the end doesn't have jurisdiction

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Speaker 1: to hear your case, and you would have been able

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Speaker 1: to make that argument, you still can't skip the court proceedings.

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Speaker 1: I don't know of an analogous case ever like this

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Speaker 1: where the court is saying, and this is why Justice

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Speaker 1: course it didn't go for it that a court can

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Speaker 1: deport you in a hearing that it theoretically didn't have

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Speaker 1: jurisdiction to even have the ability to have the hearing,

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Speaker 1: but this is what they've decided. And I think this

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Speaker 1: is a bad fact, bad law, good fact, good life

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Speaker 1: law type situation where I think five justices of the

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Speaker 1: Supreme Court, and especially Justice Roberts is a very swing

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Speaker 1: vote and usually tried to do something practical in a

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Speaker 1: lot of these cases. Just thought, I don't think it's

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Speaker 1: practical to allow a regime that just allows people to

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Speaker 1: skip whenever they want Immigration Court, and I think that

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Speaker 1: just couldn't settle enough for Justice Roberts, and I think

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Speaker 1: that's why they put in this decision.

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Speaker 2: Always a pleasure to have you on, Leon, Thanks so much.

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Speaker 2: That's Leon Fresco, A partner Tollnden Knight. Coming up next

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Speaker 2: on the Bloomberg Law Show. What the Supreme Court's ruling

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Speaker 2: on bump stocks means for gun regulation. A sharply divided

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Speaker 2: Supreme Court throughout the federal ban on bump stocks, the

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Speaker 2: rapid fire gun accessory used in the deadliest mass shooting

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Speaker 2: in modern US history, where a gunman fired more than

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Speaker 2: one thousand rounds into a Las Vegas crowd in eleven minutes,

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Speaker 2: killing sixty people. In twenty seventeen, in a six to

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Speaker 2: three decision down ideological lines. The court's conservatives said regulators

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Speaker 2: exceeded their power by outlining the rapid fire devices. In

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Speaker 2: light of that decision, Senate Majority Leader Chuck Schumer said

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Speaker 2: the Senate will vote this week on restoring a ban

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Speaker 2: on bump stocks.

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Speaker 3: By undoing this most common sense safety ban on deadly

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Speaker 3: bump stocks. This maga Supreme Court has shown the American

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Speaker 3: people how dangerously to the far right they have gone.

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Speaker 2: Joining me is Joseph Bloker, a professor at Duke Law School. Joseph,

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Speaker 2: this case isn't about the Second Amendment. Explain what the

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Speaker 2: issue is here.

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Speaker 4: This is not a case about whether the government can

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Speaker 4: prohibit bump stocks. That was not the question before the court.

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Speaker 4: Not a Second Amendment argument, not a constitutional argument. The

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Speaker 4: question is whether the ATF can under the existing statute

439
00:25:00,280 --> 00:25:03,399
Speaker 4: bump stocks like machine guns. Current federal law has a

440
00:25:03,400 --> 00:25:05,840
Speaker 4: lot of restrictions that apply to the machine guns, and

441
00:25:05,880 --> 00:25:09,360
Speaker 4: it defines machine guns as a weapon that can automatically

442
00:25:09,520 --> 00:25:13,639
Speaker 4: fire more than one shot without manual reloading by and

443
00:25:13,680 --> 00:25:16,680
Speaker 4: this is the key phrase, a single function.

444
00:25:16,600 --> 00:25:17,440
Speaker 1: Of the trigger.

445
00:25:17,640 --> 00:25:20,879
Speaker 4: And what bump stocks do is essentially take a semi

446
00:25:20,920 --> 00:25:24,320
Speaker 4: automatic weapon that is one that fires a single bullet

447
00:25:24,359 --> 00:25:27,080
Speaker 4: with each separate pull of the trigger and makes it

448
00:25:27,200 --> 00:25:30,600
Speaker 4: function like a machine gun that is, an automatic weapon,

449
00:25:30,640 --> 00:25:32,560
Speaker 4: one where you hold down the trigger and bullets continue

450
00:25:32,600 --> 00:25:34,560
Speaker 4: to go. And the way a bump stock does that

451
00:25:34,760 --> 00:25:38,119
Speaker 4: is it harnesses the recoil of the weapon essentially to

452
00:25:38,400 --> 00:25:40,840
Speaker 4: bump it, that is, the weapon or the trigger against

453
00:25:40,880 --> 00:25:44,320
Speaker 4: the finger of the shooter so quickly that in effect,

454
00:25:44,760 --> 00:25:48,000
Speaker 4: a rifle outfitted with a bump stock can shoot eight

455
00:25:48,040 --> 00:25:51,159
Speaker 4: hundred rounds a minute, which you know, looks like a

456
00:25:51,200 --> 00:25:52,879
Speaker 4: machine gun. It sounds like a machine gun. If you've

457
00:25:52,920 --> 00:25:55,280
Speaker 4: seen or heard the footage from the Las Vegas shooting,

458
00:25:55,280 --> 00:25:57,679
Speaker 4: for example, that involved a bump stock, it sounds like

459
00:25:57,680 --> 00:25:59,520
Speaker 4: what most people imagine a machine gun to be like.

460
00:25:59,600 --> 00:26:02,320
Speaker 4: So this case is really about hand bump stocks be

461
00:26:02,359 --> 00:26:06,480
Speaker 4: treated like machine guns under the existing statute. That's really

462
00:26:06,520 --> 00:26:07,200
Speaker 4: really important.

463
00:26:07,920 --> 00:26:11,240
Speaker 2: And how did Justice Clarence Thomas come to his decision

464
00:26:11,320 --> 00:26:14,639
Speaker 2: that quote, a bump stock does not convert a semi

465
00:26:14,680 --> 00:26:18,600
Speaker 2: automatic rifle into a machine gun any more than a

466
00:26:18,640 --> 00:26:21,520
Speaker 2: shooter where the lightning fast trigger finger does.

467
00:26:22,480 --> 00:26:26,040
Speaker 4: It's a really interesting opinion in that Jessa Thomas is

468
00:26:26,640 --> 00:26:30,639
Speaker 4: using images from an amicust brief to illustrate in some

469
00:26:30,800 --> 00:26:34,360
Speaker 4: detail how a bump stock works, and he's really focused

470
00:26:34,359 --> 00:26:39,000
Speaker 4: on the mode of action by which the trigger activates

471
00:26:39,119 --> 00:26:42,760
Speaker 4: the firing mechanism, and the basic takeaway from his opinion,

472
00:26:42,800 --> 00:26:45,240
Speaker 4: I think, is that the trigger has to be reset

473
00:26:45,400 --> 00:26:48,439
Speaker 4: each time, and the bump stock itself is really just

474
00:26:48,480 --> 00:26:51,760
Speaker 4: the technological equivalent of a person with a lightning fast

475
00:26:51,800 --> 00:26:55,200
Speaker 4: trigger finger like the trigger itself has to be depressed repeatedly,

476
00:26:55,480 --> 00:26:58,359
Speaker 4: and so on his reading, that means that that's more

477
00:26:58,480 --> 00:27:02,000
Speaker 4: than a single function of the trigger, and therefore this

478
00:27:02,080 --> 00:27:04,679
Speaker 4: can't be a machine gun. I think the difference between

479
00:27:04,680 --> 00:27:08,119
Speaker 4: his opinion and Justice Soda my Or's descent capture it

480
00:27:08,160 --> 00:27:11,280
Speaker 4: in a sentence is just as Thomas is focused on

481
00:27:11,359 --> 00:27:14,520
Speaker 4: things from the perspective of the gun, and Justice Soda

482
00:27:14,600 --> 00:27:17,480
Speaker 4: my Or is focused on the action of the shooter

483
00:27:17,560 --> 00:27:19,919
Speaker 4: the perspective of the shooter, and she points out a

484
00:27:19,960 --> 00:27:24,120
Speaker 4: single initial pull of the trigger initiates the firing sequence,

485
00:27:24,160 --> 00:27:25,720
Speaker 4: and then as long as you hold your finger in

486
00:27:25,760 --> 00:27:28,679
Speaker 4: place and keep enough pressure on the gun, it continues

487
00:27:28,720 --> 00:27:30,679
Speaker 4: to fire without you having to do anything else. And

488
00:27:30,720 --> 00:27:33,640
Speaker 4: so for her, that's that's a single function in a nutshell.

489
00:27:33,680 --> 00:27:35,520
Speaker 4: I think that's the difference between how they're looking at.

490
00:27:35,400 --> 00:27:39,000
Speaker 2: This case, is what Thomas says technically correct.

491
00:27:39,400 --> 00:27:41,560
Speaker 4: Yeah, I mean, I don't think that there's anything in

492
00:27:41,600 --> 00:27:45,360
Speaker 4: the majority opinion that I see that's technically wrong. It's

493
00:27:45,400 --> 00:27:48,640
Speaker 4: just a question of how you frame the inquiry here, right,

494
00:27:48,800 --> 00:27:51,280
Speaker 4: Like what is the question one needs to ask to

495
00:27:51,359 --> 00:27:54,840
Speaker 4: figure out whether a gun automatically fires more than one

496
00:27:54,880 --> 00:27:56,840
Speaker 4: shot by a single function of the trigger. But you

497
00:27:56,880 --> 00:27:58,840
Speaker 4: know the diagrams that he shows, As far as I

498
00:27:58,840 --> 00:28:01,000
Speaker 4: can tell her to entirely acting, it's just a question

499
00:28:01,080 --> 00:28:03,200
Speaker 4: of is that the right way to understand what the

500
00:28:03,280 --> 00:28:06,359
Speaker 4: question is? And again, just the Sodomior's point is it

501
00:28:06,440 --> 00:28:10,000
Speaker 4: is equally accurate to say that with a single pull

502
00:28:10,119 --> 00:28:12,640
Speaker 4: of the trigger is if you focus on the finger itself,

503
00:28:13,040 --> 00:28:15,640
Speaker 4: the weapon will fire like a machine gun. And that's

504
00:28:15,640 --> 00:28:18,240
Speaker 4: why she says in the opinion, I think I got

505
00:28:18,240 --> 00:28:20,840
Speaker 4: this quote right. When I see a bird that walks

506
00:28:20,880 --> 00:28:22,560
Speaker 4: like a duck, runs like a duck, and quacks like

507
00:28:22,600 --> 00:28:25,040
Speaker 4: a duck, I call that bird a duck. And you

508
00:28:25,080 --> 00:28:28,879
Speaker 4: know here she says, these guns the fire like machine guns,

509
00:28:28,880 --> 00:28:31,840
Speaker 4: and therefore the ATF can choose to call them that,

510
00:28:32,040 --> 00:28:34,359
Speaker 4: and I should say, the ATF rule here was adopted

511
00:28:34,480 --> 00:28:38,080
Speaker 4: in twenty eighteen during the Trump administration in the aftermath

512
00:28:38,160 --> 00:28:41,000
Speaker 4: of the Las Vegas shooting. It was pretty broad bipartisan

513
00:28:41,000 --> 00:28:43,400
Speaker 4: support for it at the time. So you know, what

514
00:28:43,520 --> 00:28:45,360
Speaker 4: happens next is kind of an open question.

515
00:28:46,160 --> 00:28:50,000
Speaker 2: This is a six to three decision down ideological lines.

516
00:28:50,520 --> 00:28:54,440
Speaker 2: Does it really come down to the six conservatives are

517
00:28:54,480 --> 00:28:58,040
Speaker 2: not in favor of restrictions on guns, and the three

518
00:28:58,160 --> 00:29:02,160
Speaker 2: liberals are in favor of restrictions on guns, and the

519
00:29:02,200 --> 00:29:03,840
Speaker 2: outcome is determined by that?

520
00:29:04,440 --> 00:29:07,360
Speaker 4: I mean, that does accurately describe the way that the

521
00:29:07,440 --> 00:29:10,760
Speaker 4: lineups have shaken out. But I think in this case anyway,

522
00:29:10,800 --> 00:29:14,920
Speaker 4: there's a almost a methodological divide between the justices which

523
00:29:14,960 --> 00:29:17,960
Speaker 4: is even more fundamental maybe than their views on guns.

524
00:29:18,200 --> 00:29:21,320
Speaker 4: I mean, of the justices in the majority, based on

525
00:29:21,440 --> 00:29:24,959
Speaker 4: oral argument, and even based on a pretty remarkable concurrence

526
00:29:25,120 --> 00:29:27,520
Speaker 4: that Justice Alito wrote, I think they have a lot

527
00:29:27,560 --> 00:29:30,120
Speaker 4: of sympathy for the prohibition on bump stocks. You know,

528
00:29:30,280 --> 00:29:32,840
Speaker 4: Justice Barretts seemed to be signaling that at oral argument.

529
00:29:33,440 --> 00:29:36,960
Speaker 4: Justice Alito has this concurrence where he again he agrees

530
00:29:37,000 --> 00:29:39,680
Speaker 4: with Justice Thomas that the ATF can't prohibit this. But

531
00:29:40,160 --> 00:29:43,040
Speaker 4: he also goes on to say, there can be little

532
00:29:43,120 --> 00:29:46,840
Speaker 4: doubt that the Congress that enacted this law would have

533
00:29:46,880 --> 00:29:50,240
Speaker 4: not seen any material difference between a machine gun and

534
00:29:50,280 --> 00:29:52,840
Speaker 4: a semi automatic rifle equipped with a bump stock. Do

535
00:29:52,880 --> 00:29:54,320
Speaker 4: you read that and you think, oh, well, he's going

536
00:29:54,400 --> 00:29:56,320
Speaker 4: to vote for the government here. But then he goes

537
00:29:56,360 --> 00:29:59,840
Speaker 4: on to say, but the statutory text is clear and

538
00:30:00,040 --> 00:30:03,200
Speaker 4: we must follow it. So I think the methodological division here,

539
00:30:03,680 --> 00:30:06,440
Speaker 4: again to oversimplify a little bit, is between the justices

540
00:30:06,480 --> 00:30:08,720
Speaker 4: and the majority who see this as a case about

541
00:30:08,800 --> 00:30:11,760
Speaker 4: clear texts that a single function of a trigger cannot

542
00:30:11,760 --> 00:30:14,600
Speaker 4: include the bump stock because the trigger has to be

543
00:30:14,600 --> 00:30:18,640
Speaker 4: depressed repeatedly, and the justices in the descent disagree about

544
00:30:18,680 --> 00:30:21,760
Speaker 4: that text. But also I think believe that the purpose

545
00:30:21,920 --> 00:30:24,360
Speaker 4: of the statute is clear and should play a role here,

546
00:30:24,360 --> 00:30:26,960
Speaker 4: which is the Congress that enacted this would have allowed

547
00:30:27,000 --> 00:30:29,360
Speaker 4: the prohibition on bump stocks and so would have gone

548
00:30:29,360 --> 00:30:31,600
Speaker 4: the other way. So, in addition to the gun thing,

549
00:30:31,640 --> 00:30:34,040
Speaker 4: I think there's a methodological dispute here as well.

550
00:30:35,000 --> 00:30:38,479
Speaker 2: Is it also about the power of the ATF the

551
00:30:38,520 --> 00:30:43,120
Speaker 2: federal agency here to enact and interpret regulations, which is

552
00:30:43,240 --> 00:30:47,160
Speaker 2: really almost a theme this term at the Court. We're

553
00:30:47,160 --> 00:30:50,400
Speaker 2: going to see a lot of cases about agency authority.

554
00:30:50,880 --> 00:30:54,239
Speaker 4: Yet one of the interesting dogs that doesn't bark in

555
00:30:54,320 --> 00:30:59,280
Speaker 4: this case is the status of what's called Chevron deference

556
00:30:59,400 --> 00:31:03,080
Speaker 4: right under the principle of Chevron, which is a case

557
00:31:03,080 --> 00:31:06,040
Speaker 4: which is sort of foundational to the way the administrative

558
00:31:06,040 --> 00:31:12,360
Speaker 4: state works. Courts will defer to agencies reasonable interpretations of

559
00:31:12,520 --> 00:31:16,200
Speaker 4: ambiguous statutes. So if statutory text isn't clear, and let's

560
00:31:16,200 --> 00:31:19,160
Speaker 4: say the EPA or the ATF is charged with enforcing

561
00:31:19,200 --> 00:31:22,000
Speaker 4: that statute, if they adopt a reasonable interpretation of it,

562
00:31:22,200 --> 00:31:24,920
Speaker 4: then courts will say, okay, we'll let that stand. And

563
00:31:24,960 --> 00:31:27,400
Speaker 4: there's a separate case before the Court right now, case

564
00:31:27,440 --> 00:31:31,360
Speaker 4: called Loper Bright, which really presents straightforwardly the question should

565
00:31:31,400 --> 00:31:35,160
Speaker 4: Chevron be overruled? And for administrative law scholars, I think

566
00:31:35,520 --> 00:31:38,239
Speaker 4: that is the single biggest question for administrative law, you know,

567
00:31:38,480 --> 00:31:41,400
Speaker 4: and how long? I mean, that's the basis for how

568
00:31:41,680 --> 00:31:46,040
Speaker 4: so much administrative law and therefore agencies works. Now, this

569
00:31:46,200 --> 00:31:49,840
Speaker 4: case arguably has some endigorous text. You know that this

570
00:31:50,000 --> 00:31:54,040
Speaker 4: single function of the trigger text, and so you might say, well, look,

571
00:31:54,040 --> 00:31:57,320
Speaker 4: the justices disagree about what it means, and therefore it's ambiguous,

572
00:31:57,320 --> 00:32:00,000
Speaker 4: and the ATF has adopted what might be a reasonable

573
00:32:00,120 --> 00:32:02,880
Speaker 4: interpretation that is, a bump stock, you know, can constitute

574
00:32:02,920 --> 00:32:07,480
Speaker 4: machine guns. But the government below disclaimed reliance on Chevron

575
00:32:07,520 --> 00:32:09,240
Speaker 4: and so it's not even cited in any of the

576
00:32:09,240 --> 00:32:11,200
Speaker 4: opinions here, which is a little interesting because it is

577
00:32:11,200 --> 00:32:13,560
Speaker 4: an agency case. I don't know what that signals about

578
00:32:13,600 --> 00:32:15,800
Speaker 4: what's happening in Low or Bright, which we haven't received yet,

579
00:32:15,800 --> 00:32:16,960
Speaker 4: but we'll see.

580
00:32:17,720 --> 00:32:22,440
Speaker 2: Does this decision in any way indicate the outcome of

581
00:32:22,480 --> 00:32:25,760
Speaker 2: the Rahemi case, which is about a federal gun ban

582
00:32:25,920 --> 00:32:31,880
Speaker 2: for people subject to domestic violence restraining orders, although in

583
00:32:31,920 --> 00:32:35,040
Speaker 2: that case it seemed like in the oral arguments that

584
00:32:35,960 --> 00:32:39,400
Speaker 2: many of the justices were on board with the ban.

585
00:32:40,640 --> 00:32:41,440
Speaker 1: Yeah, it's I.

586
00:32:41,360 --> 00:32:44,080
Speaker 4: Think very different. Just there's no Second Amendment claim in

587
00:32:44,120 --> 00:32:47,480
Speaker 4: this case. The methodological questions are very different. At the

588
00:32:47,600 --> 00:32:50,400
Speaker 4: oral argument in Rashini, at least it sounded like most

589
00:32:50,440 --> 00:32:52,520
Speaker 4: of the justices, at least we were on board with

590
00:32:52,560 --> 00:32:55,680
Speaker 4: the government's The government's argument remains to be seen how

591
00:32:55,720 --> 00:32:58,400
Speaker 4: that'll shake out, maybe lots in lots of different ways

592
00:32:58,680 --> 00:33:01,440
Speaker 4: that could go. And and you know that opinion has

593
00:33:01,480 --> 00:33:04,920
Speaker 4: been out since the first week of November a long time,

594
00:33:05,320 --> 00:33:08,920
Speaker 4: so you know, maybe wondering exactly how that's kind of splintering.

595
00:33:09,440 --> 00:33:11,440
Speaker 4: At this point, it's starting to feel to me like

596
00:33:11,520 --> 00:33:14,719
Speaker 4: it's going to be more than two opinions, more than

597
00:33:14,760 --> 00:33:16,520
Speaker 4: just a majority in a dissent. But you know, I

598
00:33:16,520 --> 00:33:17,960
Speaker 4: guess hopefully we'll be seeing.

599
00:33:17,760 --> 00:33:20,760
Speaker 2: Soon, well less than two weeks left in the terms,

600
00:33:20,880 --> 00:33:24,960
Speaker 2: so we'll see you before they go on vacation, I guess. Now.

601
00:33:25,120 --> 00:33:29,160
Speaker 2: Senate Majority Leader Chuck Schumer says they're going to advance

602
00:33:29,280 --> 00:33:34,240
Speaker 2: legislation to ban bump stocks, but that seems unlikely to

603
00:33:34,320 --> 00:33:37,000
Speaker 2: get enough Republican votes in this Senate.

604
00:33:37,600 --> 00:33:40,400
Speaker 4: You know, there are state level prohibitions. I think somewhere

605
00:33:40,400 --> 00:33:43,680
Speaker 4: between fifteen and twenty states already prohibit bump stocks, and

606
00:33:43,920 --> 00:33:46,760
Speaker 4: it may be that more states will adopt those kinds

607
00:33:46,800 --> 00:33:50,120
Speaker 4: of prohibitions now, given that the federal regulation has been

608
00:33:50,120 --> 00:33:53,680
Speaker 4: struck down. We have certainly seen in recent years at

609
00:33:53,680 --> 00:33:55,920
Speaker 4: the state level a lot of action that you know,

610
00:33:55,960 --> 00:33:57,680
Speaker 4: we just haven't seen at the federal level. And it

611
00:33:57,720 --> 00:34:00,800
Speaker 4: comes to bump stocks. I mean, they're prohibited in not

612
00:34:00,880 --> 00:34:04,600
Speaker 4: just blue states, I mean Florida, Louisiana, Indiana, they all

613
00:34:04,600 --> 00:34:06,840
Speaker 4: have restrictions on bump stocks, so maybe to see them

614
00:34:06,880 --> 00:34:09,680
Speaker 4: spread there, like with for example, red flag laws, which

615
00:34:09,719 --> 00:34:13,040
Speaker 4: again more than twenty states have now, including places like Florida,

616
00:34:13,520 --> 00:34:15,799
Speaker 4: So maybe we'll see action at the state level. You know,

617
00:34:15,840 --> 00:34:20,680
Speaker 4: it's really rare that Congress passes gun legislation. It happened

618
00:34:20,680 --> 00:34:23,279
Speaker 4: in twenty twenty with a bipart in Safer Communities Act,

619
00:34:23,520 --> 00:34:26,880
Speaker 4: but that was mostly focused on funding community violence, interruption

620
00:34:27,040 --> 00:34:30,000
Speaker 4: and things like that. There were a couple statutory criminal changes,

621
00:34:30,120 --> 00:34:32,600
Speaker 4: but it's very hard for Congress to get gun legislation

622
00:34:32,719 --> 00:34:33,920
Speaker 4: through these.

623
00:34:33,800 --> 00:34:36,600
Speaker 2: Days, to get any legislation through well.

624
00:34:36,640 --> 00:34:39,400
Speaker 4: And I think that's why. That's precisely why this question

625
00:34:39,480 --> 00:34:41,960
Speaker 4: of what the agencies can do is so important, because

626
00:34:42,280 --> 00:34:44,759
Speaker 4: it's true, like if Congress were to pass this statute,

627
00:34:44,800 --> 00:34:47,040
Speaker 4: it would be on stronger footing, but we know that's

628
00:34:47,080 --> 00:34:49,160
Speaker 4: not realistic because at least it's going to be very hard.

629
00:34:49,200 --> 00:34:53,399
Speaker 4: And that's precisely why the ATF is, you know, doing

630
00:34:53,400 --> 00:34:56,239
Speaker 4: things like passing regulations saying, hey, bump stocks, which they

631
00:34:56,239 --> 00:34:58,600
Speaker 4: didn't know about when they enacted the machine gun prohibition

632
00:34:58,680 --> 00:35:01,160
Speaker 4: are functionally machine guns. We're going to treatom the same, like,

633
00:35:01,239 --> 00:35:03,879
Speaker 4: that's the idea behind that, as the agency is sort

634
00:35:03,880 --> 00:35:06,560
Speaker 4: of doing what Congress would have wanted in that statue.

635
00:35:06,640 --> 00:35:10,080
Speaker 4: It's really tough com matching Congress passening, specifically a prohibition

636
00:35:10,200 --> 00:35:13,760
Speaker 4: on bump stocks, even though again twenty eighteen, the political

637
00:35:13,760 --> 00:35:14,920
Speaker 4: wins seem to be in favor.

638
00:35:15,640 --> 00:35:18,200
Speaker 2: Schumer may advance the bill as soon as tomorrow, so

639
00:35:18,480 --> 00:35:22,279
Speaker 2: we'll find out quickly. Thanks so much for your insights, Joseph.

640
00:35:22,480 --> 00:35:26,640
Speaker 2: That's Professor Joseph Bloker of Duke Law School. Supporters of

641
00:35:26,680 --> 00:35:30,160
Speaker 2: the bump stock ban include every Town for Gun Safety,

642
00:35:30,480 --> 00:35:33,600
Speaker 2: which is backed by Michael Bloomberg, the founder and majority

643
00:35:33,640 --> 00:35:37,560
Speaker 2: owner of Bloomberg LP, the parent company of Bloomberg Radio.

644
00:35:38,360 --> 00:35:41,000
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.

645
00:35:41,360 --> 00:35:43,719
Speaker 2: Remember you can always get the latest legal news by

646
00:35:43,760 --> 00:35:47,600
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

647
00:35:47,880 --> 00:35:51,719
Speaker 2: and at Bloomberg dot com, Slash podcast, Slash Law. I'm

648
00:35:51,800 --> 00:35:54,239
Speaker 2: June Grosso and this is Bloomberg