WEBVTT - Birthright Citizenship Reverse Faces Tough Legal Odds 0:00:03.480 --> 0:00:07.560 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.640 --> 0:00:10.440 day we bring you insight and analysis into the most 0:00:10.480 --> 0:00:13.399 important legal news of the day. You can find more 0:00:13.480 --> 0:00:18.040 episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud, 0:00:18.320 --> 0:00:22.840 and on Bloomberg dot com slash Podcasts. In an interview 0:00:22.840 --> 0:00:26.880 with Axios on HBO, President Trump asserted that he can 0:00:27.040 --> 0:00:30.760 end birthright citizenship in the US with an executive order. 0:00:31.520 --> 0:00:34.400 We're the only country in the world where a person 0:00:34.479 --> 0:00:36.879 comes in, has a baby, and the baby is essentially 0:00:36.880 --> 0:00:39.240 a citizen of the United States for eighty five years, 0:00:39.240 --> 0:00:42.960 with all of those benefits. It's ridiculous. It's ridiculous, and 0:00:43.000 --> 0:00:47.440 it has to end. In fact, many countries, including Canada, Mexico, Brazil, 0:00:47.560 --> 0:00:52.040 and Argentina have US style birthright citizenship, and President Trump's 0:00:52.040 --> 0:00:55.280 efforts are likely to meet stiff resistance in the courts. 0:00:55.680 --> 0:00:59.640 Joining me is Susannah Sherriot, professor at Vanderbilt University Law School. 0:01:00.320 --> 0:01:03.600 Most legal scholars, not all, but most say the law 0:01:03.720 --> 0:01:07.800 on its face and interpretations show that children born to 0:01:08.080 --> 0:01:12.920 illegal immigrants are US citizens. Explain the basis of that 0:01:13.040 --> 0:01:18.080 legal thinking well. The Fourteenth Amendment to the Constitution starts 0:01:18.200 --> 0:01:22.080 by saying, all persons born or naturalized in the United 0:01:22.120 --> 0:01:26.399 States and subject to the jurisdiction thereof, are citizens of 0:01:26.440 --> 0:01:29.560 the United States and of the state wherein they reside. 0:01:29.800 --> 0:01:32.640 So the Fourteenth Amendment says it right there. If you're 0:01:32.640 --> 0:01:36.120 born in the United States, you are a citizen. Now 0:01:36.160 --> 0:01:40.120 explain the legal perspective of those who point to those 0:01:40.120 --> 0:01:44.440 words subject to the jurisdiction thereof and say the Fourteenth 0:01:44.440 --> 0:01:49.400 Amendment doesn't cover the children of illegal immigrants. Well, what 0:01:49.520 --> 0:01:53.040 the purpose of the subject to the jurisdiction thereof language 0:01:53.760 --> 0:01:58.720 was to codify the common law exceptions to birthright citizenship. 0:01:59.040 --> 0:02:01.880 So at the time uh that the Fourteenth Amendment was adopted, 0:02:01.880 --> 0:02:03.960 and in fact, at the time of the American Revolution, 0:02:04.680 --> 0:02:07.480 common law in England and then eventually common law in 0:02:07.520 --> 0:02:13.000 the United States had birthright citizenship. But there were two exceptions. Uh, 0:02:13.040 --> 0:02:16.120 you were not a citizen if you were born in 0:02:16.200 --> 0:02:19.600 a country but you were the child of diplomats from 0:02:19.600 --> 0:02:22.560 a foreign country, and you were not I didn't have 0:02:22.600 --> 0:02:25.480 birthright citizenship if you were born in a country but 0:02:25.560 --> 0:02:29.440 you were the child of uh an alien enemies in 0:02:29.600 --> 0:02:33.440 hostile occupation. As the common law put it. In other words, 0:02:33.919 --> 0:02:40.000 foreign diplomats and invading armies were not subject to the 0:02:40.120 --> 0:02:44.480 jurisdiction of the host country, and so their children were 0:02:44.560 --> 0:02:48.320 didn't have birthright citizenship. And the purpose of the subject 0:02:48.320 --> 0:02:51.840 to jurisdiction language was just to make it clear that 0:02:51.880 --> 0:02:56.519 although most people would have birthright citizenship, those two exceptions 0:02:56.520 --> 0:03:01.040 would continue to be exceptions. Explain the Supreme Courts position. 0:03:01.120 --> 0:03:06.480 It's never addressed this particular issue directly, and uh, the 0:03:06.520 --> 0:03:11.240 case in which it did address this issue was a well, 0:03:11.280 --> 0:03:14.960 it did address it pretty directly. It was in eight UM. 0:03:14.960 --> 0:03:18.440 It was um in a case called Wang Kim Arc 0:03:18.840 --> 0:03:21.400 and Wang Wang kim Arc had been born in the 0:03:21.520 --> 0:03:26.079 United States of parents who were Chinese citizens. Now it 0:03:26.280 --> 0:03:30.680 so happened that, uh, they were legally in the United States. 0:03:30.840 --> 0:03:33.359 But you know, the Supreme Court never even mentioned that. 0:03:33.400 --> 0:03:37.560 The majority opinion never cared whether they were legal or illegal. 0:03:38.000 --> 0:03:41.280 The majority opinion simply said they were residing in the 0:03:41.440 --> 0:03:44.520 United States, and he was born in the United States. 0:03:44.680 --> 0:03:49.400 And they said unequivocally the nothing is better settled than 0:03:49.480 --> 0:03:53.680 the doctrine the children, even of aliens born in a 0:03:53.760 --> 0:03:58.600 country while the parents are residents, there are subjects by birth, 0:03:58.880 --> 0:04:00.840 and the court went out of its way to say 0:04:00.840 --> 0:04:05.440 the only two exceptions were for diplomats and invading armies. Uh. 0:04:05.440 --> 0:04:08.520 And that it it didn't matter why the parents were here, 0:04:08.960 --> 0:04:10.840 or how long they were here, or even if they 0:04:10.840 --> 0:04:14.320 were here for a few days temporarily so journeying here, 0:04:14.400 --> 0:04:18.960 the court said, Uh, the children would still be citizens. UH. 0:04:19.040 --> 0:04:21.359 So I think that case is in fact directly on 0:04:21.440 --> 0:04:25.840 point in some ways. UH. Kim Want Kim arc had 0:04:25.880 --> 0:04:29.400 an even bigger problem than the under the children of 0:04:29.480 --> 0:04:34.160 undocumented immigrants today. Under the law of the United States 0:04:34.200 --> 0:04:37.520 and the law of China at the time, his parents 0:04:37.520 --> 0:04:42.039 could never have become citizens. Chinese people who were born 0:04:42.120 --> 0:04:47.080 in China could not become American citizens. So the only 0:04:47.120 --> 0:04:49.359 way he could become a citizen was because he was 0:04:49.400 --> 0:04:54.320 born here. So President Trump says he can end birthright 0:04:54.440 --> 0:04:59.039 citizenship with an executive order? Does that conflict with the 0:04:59.080 --> 0:05:04.080 administration claims that President Obama could not start DOCCA with 0:05:04.200 --> 0:05:09.359 a unilateral action. It does conflict with that, um, and 0:05:09.640 --> 0:05:13.600 it's I think uh, and even a weaker claim that 0:05:13.760 --> 0:05:19.520 is uh. Starting DOCCA might have taken congressional approval, but 0:05:19.600 --> 0:05:24.680 it wasn't trying to change constitutional rules. Uh. What President 0:05:24.680 --> 0:05:27.000 Trump says he wants to do would be to try 0:05:27.040 --> 0:05:30.880 to change the constitutional rule, which he couldn't do even 0:05:30.920 --> 0:05:34.120 if he had Congress with him. That is, even Congress 0:05:34.360 --> 0:05:40.080 couldn't pass a law stripping uh these American born children 0:05:40.320 --> 0:05:44.920 of their birthright citizenship. Assuming that this is not just 0:05:45.520 --> 0:05:48.279 a plan of Trump's to rev up his base before 0:05:48.279 --> 0:05:52.080 the midterms, and that he actually does issue an executive 0:05:52.160 --> 0:05:56.159 order to end birthright citizenship, what kind of challenges would 0:05:56.160 --> 0:05:59.159 that face in the courts? Well, I think it would 0:05:59.200 --> 0:06:03.719 be challenged in mediate ly, um by children who were 0:06:03.760 --> 0:06:06.479 born here and who would therefore be in danger of 0:06:06.560 --> 0:06:10.599 having their citizens born here of undocumented immigrants, and who 0:06:10.600 --> 0:06:14.040 would therefore be in danger of having their citizenship taken away. 0:06:14.120 --> 0:06:17.360 And I believe that the Attorney General of the State 0:06:17.400 --> 0:06:21.360 of Washington has already indicated that he would bring suit 0:06:21.400 --> 0:06:25.640 on behalf of uh the American citizens within his state 0:06:25.880 --> 0:06:29.040 who would be affected by this. The state of Washington 0:06:29.120 --> 0:06:32.120 was heavily involved in and brought several of the cases 0:06:32.240 --> 0:06:37.120 challenging Trump's travel band order Susannah if it did reach 0:06:37.200 --> 0:06:40.920 the Supreme Court. By some stretch of the imagination, are 0:06:40.960 --> 0:06:45.120 there justices on the Court who might support Trump's interpretation. 0:06:46.440 --> 0:06:50.960 I certainly hope not, because there's really no plausible legal 0:06:51.080 --> 0:06:55.000 argument in favor of it. This is a constitutional doctrine. 0:06:55.000 --> 0:06:58.279 It is right there in the Constitution. The text is clear, 0:06:58.640 --> 0:07:02.039 the history is clear, the precedent is clear. So it 0:07:02.080 --> 0:07:06.039 really doesn't matter what your theory of constitutional interpretation is. 0:07:06.520 --> 0:07:09.360 It all points to the same thing, which is that 0:07:09.480 --> 0:07:14.520 it would take a constitutional amendment to change birthright citizenship. 0:07:14.960 --> 0:07:18.400 And just remind us about how much it takes to 0:07:18.480 --> 0:07:21.120 have a constitutional amendment and why we're not likely to 0:07:21.160 --> 0:07:24.120 see one. Well, the Congress, both hases of Congress have 0:07:24.160 --> 0:07:26.200 to propose it, and then it has to be ratified 0:07:26.480 --> 0:07:30.200 by three quarters of the states. And it's only the 0:07:30.200 --> 0:07:33.480 Constitution has only been amended twenty seven times, and ten 0:07:33.520 --> 0:07:38.320 of those were all at once, so highly unlikely. But um, 0:07:38.480 --> 0:07:43.000 there has there has been some minority viewpoints through the 0:07:43.080 --> 0:07:46.720 years about this amendment. What what brings it up every 0:07:46.800 --> 0:07:50.600 once in a while, Well, I think it's um, birthright 0:07:50.640 --> 0:07:53.360 citizenship is not always very popular. There are a lot 0:07:53.360 --> 0:07:55.960 of things in the Constitution that aren't popular, and from 0:07:56.040 --> 0:07:59.280 time to time, both state governments and the federal government 0:07:59.400 --> 0:08:02.920 or will in those governments um try to change them 0:08:03.040 --> 0:08:05.880 or try to get around them, and usually it ends 0:08:05.920 --> 0:08:09.480 up in the courts, and the courts say no, all right, 0:08:09.520 --> 0:08:12.920 thanks so much, Susannah, thanks for joining us at Susannah Sherry, 0:08:13.120 --> 0:08:22.280 a professor at Vanderbilt University Law School. Google wants to 0:08:22.320 --> 0:08:25.320 give eight point five million dollars to charity to settle 0:08:25.320 --> 0:08:29.000 a consumer privacy class action, but that settlement is being 0:08:29.120 --> 0:08:32.319 questioned at the Supreme Court. Joining us as Bloomberg News 0:08:32.320 --> 0:08:35.480 Supreme Court reporter Greg Store who was in at the 0:08:35.559 --> 0:08:39.439 arguments this morning. So, Greg, the idea of the settlement 0:08:39.600 --> 0:08:42.920 is that there are a h million Google users, So 0:08:43.000 --> 0:08:47.080 instead of compensating them directly with about four cents each, 0:08:47.160 --> 0:08:50.320 let's give the settlement money to a few charities. What's 0:08:50.360 --> 0:08:53.320 the objection to the settlement that brought the case to 0:08:53.360 --> 0:08:56.559 the Supreme Court. The objection is that there's a man 0:08:56.640 --> 0:08:59.040 named Ted Frank who also argued the case, and he 0:08:59.720 --> 0:09:02.440 uh uh uh interviewed in the case to say, look, 0:09:02.520 --> 0:09:04.800 it's not fair that this money that is supposed to 0:09:04.800 --> 0:09:07.960 go to people like me, uh instead goes to these 0:09:08.000 --> 0:09:12.360 handpicked organizations, handpicked by the plaintiff's lawyers and by the 0:09:12.400 --> 0:09:17.000 company being sued Google. Uh. The he says that the 0:09:17.040 --> 0:09:20.320 district court should have required uh them, if they're going 0:09:20.360 --> 0:09:22.480 to settle the case, to come up with some feasible 0:09:22.520 --> 0:09:25.680 way for sending at least some of the money to 0:09:25.840 --> 0:09:29.800 the individuals who he says were harmed. Settlements like this 0:09:30.000 --> 0:09:33.400 where class members get nothing, are really rare. There was 0:09:33.440 --> 0:09:37.600 researched by a Harvard law professor that indicated only eighteen 0:09:37.720 --> 0:09:41.320 cases ever where federal courts approve these kind of settlements. 0:09:41.480 --> 0:09:44.960 Why did the Supreme Court even agree to hear this case? Yeah, 0:09:44.960 --> 0:09:47.079 that that is a good question. Yeah, that's that's a 0:09:47.360 --> 0:09:52.760 research by Harvard law professor William Rubinstein. Um. The the court, 0:09:53.080 --> 0:09:57.920 you know, is often skeptical about both plaintiffs lawyers and 0:09:58.120 --> 0:10:02.360 class action lawsuits. And in this case, uh, there is 0:10:02.400 --> 0:10:06.360 some reason for the court to be skeptical about the 0:10:06.400 --> 0:10:10.560 intentions of both Google and the lawyers behind the case. 0:10:10.600 --> 0:10:12.800 And when I say there's reason, there's at least reason 0:10:12.840 --> 0:10:15.960 for the Court's conservative members. Uh. They are the ones 0:10:16.000 --> 0:10:19.600 who are asking the toughest questions about the settlement. Today. 0:10:19.640 --> 0:10:22.480 If the settlement gets thrown out, it will probably be 0:10:22.520 --> 0:10:26.480 a decision with UH that is at least primarily coming 0:10:26.600 --> 0:10:29.240 from the conservative wing of the court. Tell us more 0:10:29.240 --> 0:10:33.600 about what you gleaned from the justices questions at oral arguments, 0:10:33.920 --> 0:10:37.440 well done? It It's actually quite complicated because there's also 0:10:37.880 --> 0:10:41.160 another question that cuts across ideological lines on the court, 0:10:41.480 --> 0:10:44.560 having to do with whether this type of suit should 0:10:44.559 --> 0:10:47.720 have gotten into court in the first place. UH. There's 0:10:47.720 --> 0:10:49.800 an earlier Supreme Court case a couple of years ago 0:10:51.000 --> 0:10:54.400 involving the notion of standing, that is, the idea that 0:10:54.440 --> 0:10:56.360 you have to be injury before you can bring a 0:10:56.960 --> 0:11:00.800 case in in federal court. And there are some questions 0:11:00.800 --> 0:11:06.160 in court today about whether the users who filed this 0:11:06.280 --> 0:11:11.360 lawsuit over this this um UH thing called referral headers. 0:11:11.360 --> 0:11:15.400 They claim is basically that UM, when you do a 0:11:15.400 --> 0:11:18.480 search on the internet on Google and then you click 0:11:18.559 --> 0:11:21.840 on some website that Google is then sending that information 0:11:21.880 --> 0:11:25.040 about what your search terms were to the company whose 0:11:25.080 --> 0:11:27.720 website you you call up UH. And there were some 0:11:27.760 --> 0:11:31.920 real questions about whether anybody had shown they were harmed 0:11:31.920 --> 0:11:34.400 by that practice. And if there are five justices who 0:11:34.400 --> 0:11:36.760 are are concerned enough, it could be that the court 0:11:36.760 --> 0:11:39.240 doesn't actually reach the issues in the case about the 0:11:39.280 --> 0:11:43.240 settlement itself, because the decision in this case could be 0:11:43.760 --> 0:11:47.920 just what you said, no, no decision basically about the fundamentals, 0:11:48.040 --> 0:11:51.680 or it could be some you know, earth shaking decision 0:11:51.720 --> 0:11:56.360 about class actions. It could and you know, and what 0:11:56.480 --> 0:11:58.559 you have to do to to settle the case. Um. 0:11:59.440 --> 0:12:03.240 One of the teresting dynamics here was the two newest justices, 0:12:03.280 --> 0:12:06.760 brit Kavanaugh and Neil Gorsich Um seemed to be concerned 0:12:06.760 --> 0:12:11.240 about very different things. So Kavanaugh, uh was didn't seem 0:12:11.240 --> 0:12:13.520 to be bothered by the standing point. He was more 0:12:13.520 --> 0:12:17.720 concerned about this settlement where the money was going to justice. Course, 0:12:17.720 --> 0:12:19.599 it didn't seem to be concerned about the settlement, or 0:12:19.600 --> 0:12:21.800 at least he didn't ask any questions about it. But 0:12:21.920 --> 0:12:23.560 he was one of the ones who was very concerned 0:12:23.559 --> 0:12:25.520 about whether this case should have been brought in the 0:12:25.640 --> 0:12:29.040 first place. Uh So, you may have a split among 0:12:29.080 --> 0:12:32.439 the conservative justices about what exactly to do in this case. 0:12:32.960 --> 0:12:35.680 What about the Chief Justice John Roberts, because he was 0:12:35.760 --> 0:12:39.400 the one that some years ago hinted that this these 0:12:39.440 --> 0:12:41.839 kind of settlements might be interesting for the court to 0:12:41.880 --> 0:12:45.120 look at in the right situation. Yeah, he he was 0:12:45.720 --> 0:12:48.920 someone who did express a lot of concern about where 0:12:48.920 --> 0:12:52.760 the money was going to. He uh, you know, was skeptical. 0:12:52.920 --> 0:12:55.160 So one of the groups getting the money is a 0:12:55.280 --> 0:12:58.320 r P, the Senior Citizens Advocacy Group, and he was 0:12:58.960 --> 0:13:01.840 uh kind of scratch his head is too as to 0:13:01.920 --> 0:13:05.839 why uh that made any sense allocating the money to 0:13:05.920 --> 0:13:09.720 that group did anything to actually deal with the underlying 0:13:09.800 --> 0:13:14.080 complaint in this case. UM. He also expressed a concern 0:13:14.200 --> 0:13:16.640 that that some of the money was going to a 0:13:17.120 --> 0:13:21.800 group that Google had donated to before. UM. So he 0:13:22.280 --> 0:13:25.600 certainly seemed to be one of the justices who had 0:13:25.640 --> 0:13:28.160 wanted to take this case in the first place. Uh, 0:13:28.200 --> 0:13:32.080 and would like to restrict these sorts of settlements. Greg, 0:13:32.200 --> 0:13:35.440 just give us a little bit of background about the 0:13:35.520 --> 0:13:38.839 Supreme Court's attitude in recent years. You might say that 0:13:38.960 --> 0:13:43.960 Robert's courts attitude towards class actions highly skeptical. They have 0:13:44.600 --> 0:13:48.160 uh really scaled them back in a variety of contacts. 0:13:47.920 --> 0:13:50.760 The one that probably got the most attention was a 0:13:50.800 --> 0:13:55.960 case involving Walmart and a discrimination suit against Walmart, where 0:13:55.960 --> 0:14:00.360 they essentially said, um, this loss is nationwide, loss is 0:14:00.400 --> 0:14:04.080 too sprawling, involved employees from too many different and too 0:14:04.080 --> 0:14:08.280 many different situations. Um, this is a little bit different 0:14:08.320 --> 0:14:11.600 because in this case, the company actually likes the ability 0:14:11.679 --> 0:14:15.160 to settle these suits. So to the extent you think 0:14:15.600 --> 0:14:19.040 that this court has a tendency to favor of the 0:14:19.080 --> 0:14:21.840 companies in these big class action suits. Here's a case 0:14:21.960 --> 0:14:26.520 where Google is actually urging the court to uphold this settlement. 0:14:26.520 --> 0:14:28.480 It has managed to get rid of the suit at 0:14:28.480 --> 0:14:33.160 a relatively small, uh price tag for for Google, and uh, 0:14:33.200 --> 0:14:35.640 you know, the money actually went to some organizations that 0:14:35.720 --> 0:14:39.600 Google doesn't seem to mind giving money to. All Right, 0:14:39.640 --> 0:14:42.960 thanks so much, Greg. That's Greg Store, Bloomberg News Supreme 0:14:43.000 --> 0:14:46.040 Court reporter. And one of the objections of the plaintiffs 0:14:46.080 --> 0:14:48.720 in this case was to the two million dollars going 0:14:48.840 --> 0:14:53.479 to the attorneys in this case, the class action attorneys. 0:14:53.520 --> 0:14:56.440 Thanks for listening to the Bloomberg Law Podcast. You can 0:14:56.480 --> 0:15:00.000 subscribe and listen to the show on Apple Podcasts, Sounds 0:15:00.040 --> 0:15:04.200 Out and on Bloomberg dot com Slash podcast. I'm June Brosso. 0:15:04.680 --> 0:15:11.840 This is Bloomberg m HM.