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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash Podcasts. In an interview

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Speaker 1: with Axios on HBO, President Trump asserted that he can

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Speaker 1: end birthright citizenship in the US with an executive order.

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Speaker 1: We're the only country in the world where a person

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Speaker 1: comes in, has a baby, and the baby is essentially

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Speaker 1: a citizen of the United States for eighty five years,

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Speaker 1: with all of those benefits. It's ridiculous. It's ridiculous, and

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Speaker 1: it has to end. In fact, many countries, including Canada, Mexico, Brazil,

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Speaker 1: and Argentina have US style birthright citizenship, and President Trump's

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Speaker 1: efforts are likely to meet stiff resistance in the courts.

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Speaker 1: Joining me is Susannah Sherriot, professor at Vanderbilt University Law School.

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Speaker 1: Most legal scholars, not all, but most say the law

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Speaker 1: on its face and interpretations show that children born to

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Speaker 1: illegal immigrants are US citizens. Explain the basis of that

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Speaker 1: legal thinking well. The Fourteenth Amendment to the Constitution starts

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Speaker 1: by saying, all persons born or naturalized in the United

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Speaker 1: States and subject to the jurisdiction thereof, are citizens of

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Speaker 1: the United States and of the state wherein they reside.

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Speaker 1: So the Fourteenth Amendment says it right there. If you're

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Speaker 1: born in the United States, you are a citizen. Now

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Speaker 1: explain the legal perspective of those who point to those

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Speaker 1: words subject to the jurisdiction thereof and say the Fourteenth

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Speaker 1: Amendment doesn't cover the children of illegal immigrants. Well, what

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Speaker 1: the purpose of the subject to the jurisdiction thereof language

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Speaker 1: was to codify the common law exceptions to birthright citizenship.

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Speaker 1: So at the time uh that the Fourteenth Amendment was adopted,

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Speaker 1: and in fact, at the time of the American Revolution,

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Speaker 1: common law in England and then eventually common law in

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Speaker 1: the United States had birthright citizenship. But there were two exceptions. Uh,

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Speaker 1: you were not a citizen if you were born in

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Speaker 1: a country but you were the child of diplomats from

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Speaker 1: a foreign country, and you were not I didn't have

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Speaker 1: birthright citizenship if you were born in a country but

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Speaker 1: you were the child of uh an alien enemies in

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Speaker 1: hostile occupation. As the common law put it. In other words,

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Speaker 1: foreign diplomats and invading armies were not subject to the

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Speaker 1: jurisdiction of the host country, and so their children were

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Speaker 1: didn't have birthright citizenship. And the purpose of the subject

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Speaker 1: to jurisdiction language was just to make it clear that

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Speaker 1: although most people would have birthright citizenship, those two exceptions

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Speaker 1: would continue to be exceptions. Explain the Supreme Courts position.

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Speaker 1: It's never addressed this particular issue directly, and uh, the

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Speaker 1: case in which it did address this issue was a well,

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Speaker 1: it did address it pretty directly. It was in eight UM.

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Speaker 1: It was um in a case called Wang Kim Arc

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Speaker 1: and Wang Wang kim Arc had been born in the

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Speaker 1: United States of parents who were Chinese citizens. Now it

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Speaker 1: so happened that, uh, they were legally in the United States.

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Speaker 1: But you know, the Supreme Court never even mentioned that.

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Speaker 1: The majority opinion never cared whether they were legal or illegal.

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Speaker 1: The majority opinion simply said they were residing in the

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Speaker 1: United States, and he was born in the United States.

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Speaker 1: And they said unequivocally the nothing is better settled than

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Speaker 1: the doctrine the children, even of aliens born in a

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Speaker 1: country while the parents are residents, there are subjects by birth,

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Speaker 1: and the court went out of its way to say

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Speaker 1: the only two exceptions were for diplomats and invading armies. Uh.

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Speaker 1: And that it it didn't matter why the parents were here,

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Speaker 1: or how long they were here, or even if they

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Speaker 1: were here for a few days temporarily so journeying here,

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Speaker 1: the court said, Uh, the children would still be citizens. UH.

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Speaker 1: So I think that case is in fact directly on

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Speaker 1: point in some ways. UH. Kim Want Kim arc had

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Speaker 1: an even bigger problem than the under the children of

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Speaker 1: undocumented immigrants today. Under the law of the United States

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Speaker 1: and the law of China at the time, his parents

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Speaker 1: could never have become citizens. Chinese people who were born

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Speaker 1: in China could not become American citizens. So the only

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Speaker 1: way he could become a citizen was because he was

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Speaker 1: born here. So President Trump says he can end birthright

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Speaker 1: citizenship with an executive order? Does that conflict with the

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Speaker 1: administration claims that President Obama could not start DOCCA with

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Speaker 1: a unilateral action. It does conflict with that, um, and

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Speaker 1: it's I think uh, and even a weaker claim that

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Speaker 1: is uh. Starting DOCCA might have taken congressional approval, but

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Speaker 1: it wasn't trying to change constitutional rules. Uh. What President

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Speaker 1: Trump says he wants to do would be to try

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Speaker 1: to change the constitutional rule, which he couldn't do even

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Speaker 1: if he had Congress with him. That is, even Congress

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Speaker 1: couldn't pass a law stripping uh these American born children

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Speaker 1: of their birthright citizenship. Assuming that this is not just

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Speaker 1: a plan of Trump's to rev up his base before

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Speaker 1: the midterms, and that he actually does issue an executive

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Speaker 1: order to end birthright citizenship, what kind of challenges would

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Speaker 1: that face in the courts? Well, I think it would

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Speaker 1: be challenged in mediate ly, um by children who were

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Speaker 1: born here and who would therefore be in danger of

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Speaker 1: having their citizens born here of undocumented immigrants, and who

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Speaker 1: would therefore be in danger of having their citizenship taken away.

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Speaker 1: And I believe that the Attorney General of the State

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Speaker 1: of Washington has already indicated that he would bring suit

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Speaker 1: on behalf of uh the American citizens within his state

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Speaker 1: who would be affected by this. The state of Washington

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Speaker 1: was heavily involved in and brought several of the cases

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Speaker 1: challenging Trump's travel band order Susannah if it did reach

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Speaker 1: the Supreme Court. By some stretch of the imagination, are

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Speaker 1: there justices on the Court who might support Trump's interpretation.

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Speaker 1: I certainly hope not, because there's really no plausible legal

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Speaker 1: argument in favor of it. This is a constitutional doctrine.

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Speaker 1: It is right there in the Constitution. The text is clear,

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Speaker 1: the history is clear, the precedent is clear. So it

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Speaker 1: really doesn't matter what your theory of constitutional interpretation is.

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Speaker 1: It all points to the same thing, which is that

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Speaker 1: it would take a constitutional amendment to change birthright citizenship.

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Speaker 1: And just remind us about how much it takes to

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Speaker 1: have a constitutional amendment and why we're not likely to

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Speaker 1: see one. Well, the Congress, both hases of Congress have

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Speaker 1: to propose it, and then it has to be ratified

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Speaker 1: by three quarters of the states. And it's only the

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Speaker 1: Constitution has only been amended twenty seven times, and ten

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Speaker 1: of those were all at once, so highly unlikely. But um,

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Speaker 1: there has there has been some minority viewpoints through the

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Speaker 1: years about this amendment. What what brings it up every

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Speaker 1: once in a while, Well, I think it's um, birthright

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Speaker 1: citizenship is not always very popular. There are a lot

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Speaker 1: of things in the Constitution that aren't popular, and from

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Speaker 1: time to time, both state governments and the federal government

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Speaker 1: or will in those governments um try to change them

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Speaker 1: or try to get around them, and usually it ends

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Speaker 1: up in the courts, and the courts say no, all right,

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Speaker 1: thanks so much, Susannah, thanks for joining us at Susannah Sherry,

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Speaker 1: a professor at Vanderbilt University Law School. Google wants to

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Speaker 1: give eight point five million dollars to charity to settle

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Speaker 1: a consumer privacy class action, but that settlement is being

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Speaker 1: questioned at the Supreme Court. Joining us as Bloomberg News

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Speaker 1: Supreme Court reporter Greg Store who was in at the

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Speaker 1: arguments this morning. So, Greg, the idea of the settlement

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Speaker 1: is that there are a h million Google users, So

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Speaker 1: instead of compensating them directly with about four cents each,

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Speaker 1: let's give the settlement money to a few charities. What's

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Speaker 1: the objection to the settlement that brought the case to

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Speaker 1: the Supreme Court. The objection is that there's a man

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Speaker 1: named Ted Frank who also argued the case, and he

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Speaker 1: uh uh uh interviewed in the case to say, look,

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Speaker 1: it's not fair that this money that is supposed to

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Speaker 1: go to people like me, uh instead goes to these

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Speaker 1: handpicked organizations, handpicked by the plaintiff's lawyers and by the

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Speaker 1: company being sued Google. Uh. The he says that the

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Speaker 1: district court should have required uh them, if they're going

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Speaker 1: to settle the case, to come up with some feasible

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Speaker 1: way for sending at least some of the money to

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Speaker 1: the individuals who he says were harmed. Settlements like this

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Speaker 1: where class members get nothing, are really rare. There was

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Speaker 1: researched by a Harvard law professor that indicated only eighteen

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Speaker 1: cases ever where federal courts approve these kind of settlements.

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Speaker 1: Why did the Supreme Court even agree to hear this case? Yeah,

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Speaker 1: that that is a good question. Yeah, that's that's a

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Speaker 1: research by Harvard law professor William Rubinstein. Um. The the court,

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Speaker 1: you know, is often skeptical about both plaintiffs lawyers and

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Speaker 1: class action lawsuits. And in this case, uh, there is

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Speaker 1: some reason for the court to be skeptical about the

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Speaker 1: intentions of both Google and the lawyers behind the case.

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Speaker 1: And when I say there's reason, there's at least reason

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Speaker 1: for the Court's conservative members. Uh. They are the ones

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Speaker 1: who are asking the toughest questions about the settlement. Today.

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Speaker 1: If the settlement gets thrown out, it will probably be

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Speaker 1: a decision with UH that is at least primarily coming

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Speaker 1: from the conservative wing of the court. Tell us more

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Speaker 1: about what you gleaned from the justices questions at oral arguments,

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Speaker 1: well done? It It's actually quite complicated because there's also

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Speaker 1: another question that cuts across ideological lines on the court,

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Speaker 1: having to do with whether this type of suit should

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Speaker 1: have gotten into court in the first place. UH. There's

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Speaker 1: an earlier Supreme Court case a couple of years ago

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Speaker 1: involving the notion of standing, that is, the idea that

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Speaker 1: you have to be injury before you can bring a

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Speaker 1: case in in federal court. And there are some questions

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Speaker 1: in court today about whether the users who filed this

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Speaker 1: lawsuit over this this um UH thing called referral headers.

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Speaker 1: They claim is basically that UM, when you do a

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Speaker 1: search on the internet on Google and then you click

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Speaker 1: on some website that Google is then sending that information

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Speaker 1: about what your search terms were to the company whose

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Speaker 1: website you you call up UH. And there were some

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Speaker 1: real questions about whether anybody had shown they were harmed

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Speaker 1: by that practice. And if there are five justices who

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Speaker 1: are are concerned enough, it could be that the court

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Speaker 1: doesn't actually reach the issues in the case about the

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Speaker 1: settlement itself, because the decision in this case could be

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Speaker 1: just what you said, no, no decision basically about the fundamentals,

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Speaker 1: or it could be some you know, earth shaking decision

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Speaker 1: about class actions. It could and you know, and what

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Speaker 1: you have to do to to settle the case. Um.

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Speaker 1: One of the teresting dynamics here was the two newest justices,

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Speaker 1: brit Kavanaugh and Neil Gorsich Um seemed to be concerned

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Speaker 1: about very different things. So Kavanaugh, uh was didn't seem

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Speaker 1: to be bothered by the standing point. He was more

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Speaker 1: concerned about this settlement where the money was going to justice. Course,

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Speaker 1: it didn't seem to be concerned about the settlement, or

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Speaker 1: at least he didn't ask any questions about it. But

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Speaker 1: he was one of the ones who was very concerned

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Speaker 1: about whether this case should have been brought in the

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Speaker 1: first place. Uh So, you may have a split among

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Speaker 1: the conservative justices about what exactly to do in this case.

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Speaker 1: What about the Chief Justice John Roberts, because he was

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Speaker 1: the one that some years ago hinted that this these

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Speaker 1: kind of settlements might be interesting for the court to

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Speaker 1: look at in the right situation. Yeah, he he was

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Speaker 1: someone who did express a lot of concern about where

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Speaker 1: the money was going to. He uh, you know, was skeptical.

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Speaker 1: So one of the groups getting the money is a

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Speaker 1: r P, the Senior Citizens Advocacy Group, and he was

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Speaker 1: uh kind of scratch his head is too as to

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Speaker 1: why uh that made any sense allocating the money to

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Speaker 1: that group did anything to actually deal with the underlying

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Speaker 1: complaint in this case. UM. He also expressed a concern

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Speaker 1: that that some of the money was going to a

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Speaker 1: group that Google had donated to before. UM. So he

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Speaker 1: certainly seemed to be one of the justices who had

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Speaker 1: wanted to take this case in the first place. Uh,

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Speaker 1: and would like to restrict these sorts of settlements. Greg,

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Speaker 1: just give us a little bit of background about the

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Speaker 1: Supreme Court's attitude in recent years. You might say that

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Speaker 1: Robert's courts attitude towards class actions highly skeptical. They have

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Speaker 1: uh really scaled them back in a variety of contacts.

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Speaker 1: The one that probably got the most attention was a

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Speaker 1: case involving Walmart and a discrimination suit against Walmart, where

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Speaker 1: they essentially said, um, this loss is nationwide, loss is

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Speaker 1: too sprawling, involved employees from too many different and too

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Speaker 1: many different situations. Um, this is a little bit different

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Speaker 1: because in this case, the company actually likes the ability

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Speaker 1: to settle these suits. So to the extent you think

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Speaker 1: that this court has a tendency to favor of the

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Speaker 1: companies in these big class action suits. Here's a case

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Speaker 1: where Google is actually urging the court to uphold this settlement.

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Speaker 1: It has managed to get rid of the suit at

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Speaker 1: a relatively small, uh price tag for for Google, and uh,

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Speaker 1: you know, the money actually went to some organizations that

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Speaker 1: Google doesn't seem to mind giving money to. All Right,

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Speaker 1: thanks so much, Greg. That's Greg Store, Bloomberg News Supreme

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Speaker 1: Court reporter. And one of the objections of the plaintiffs

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Speaker 1: in this case was to the two million dollars going

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Speaker 1: to the attorneys in this case, the class action attorneys.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, Sounds

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Speaker 1: Out and on Bloomberg dot com Slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg m HM.