Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: The Insular Cases are a series of rulings from the
Speaker 1: nineteen hundreds establishing that people in US territories don't have
Speaker 1: the same constitutional rights as other Americans. The cases are
Speaker 1: almost universally described as racist, even by some Supreme Court
Speaker 1: justices in a concurrence. In a case last year, Justice
Speaker 1: Neil Gorstch called for the Insular cases to be overruled,
Speaker 1: describing them as shameful and based on ugly racial stereotypes.
Speaker 1: If that's true, why shouldn't we just admit that cases
Speaker 1: were incorrectly decided? Fast forward to this Monday. Civil rights
Speaker 1: groups urged the Court to take a case involving birthright
Speaker 1: citizenship that could undo the Insular cases, but the Justices
Speaker 1: turned the case down. My guest is and Lofasso, a
Speaker 1: constitutional a professor at the West Virginia University College of Law,
Speaker 1: and tell us about this challenge brought by three Samoans
Speaker 1: who live in Utah. So basically, the three Samoans and
Speaker 1: a nonprofit organization of saying that they're entitled to birthright
Speaker 1: citizenizenship by virtue of the fact that they were born
Speaker 1: in Samoa. After the Civil War, the Fourteenth made clear
Speaker 1: under the Citizenship Clause that anyone born in the United
Speaker 1: States is entitled to birthright citizenship and was really initially
Speaker 1: intended to make sure that former slaves were absolutely citizens.
Speaker 1: It is til to all the rights of a citizen.
Speaker 1: Then what happened was after the Spanish American War, the
Speaker 1: United States acquired territories that overseas, and there were series
Speaker 1: of cases at the turn of the century. Some say six,
Speaker 1: some say nine, some say more than that, but in
Speaker 1: any event, a small series of cases that stated that
Speaker 1: this was not a seraily the case and that these
Speaker 1: overseas territories that were acquired specifically in the Spanish American War,
Speaker 1: the United States was allowed to govern them as colonies.
Speaker 1: And this is what many people believe was reading the
Speaker 1: power to colonize into the United States Constitution. So they
Speaker 1: want these cases to be overturned. So it's clear that
Speaker 1: the United States doesn't have this power to colonize the
Speaker 1: fact that they are not US citizens, meaning they can't vote,
Speaker 1: they can't serve on juries or run for state or
Speaker 1: federal office. So these insular cases, Conservative Justice Neil Gorcich
Speaker 1: and liberal Justice Sonya Soto Mayor have both expressed concern
Speaker 1: about the Insular cases remaining on the books, but neither
Speaker 1: of them dissented here. Well, there's a couple of things
Speaker 1: going on here. They may not have had the votes
Speaker 1: to overturn the precedent, so why even go there. There
Speaker 1: were also a lot of problems with this case. Samoa
Speaker 1: is very unique. It wasn't part of the original Insular cases.
Speaker 1: This case can be decided without referring to them, so
Speaker 1: they could decide this case purely on constitutional grounds and
Speaker 1: not go to be insular cases. There is no split
Speaker 1: in the circuits on this issue either. Six courts have
Speaker 1: looked at it, all six have agreed. The second of all,
Speaker 1: when the Supreme Court takes a case, it doesn't just
Speaker 1: take it because it thinks it's an important federal issue.
Speaker 1: There's what's a good vehicle for deciding this case. That
Speaker 1: means there aren't any extraneous issues that could prevent them
Speaker 1: from coming into a conclusion because they don't even have
Speaker 1: to look at the Insular cases to decide this. So
Speaker 1: that's why it would be considered a poor vehicle for
Speaker 1: revisiting the Insular cases. Politics are also involved here. Might
Speaker 1: that be another reason the court didn't take this case. Currently,
Speaker 1: they're negotiatings between the United States and Samoa about how
Speaker 1: to progress preserve the Samoan way of life, which I
Speaker 1: hope I'm not mispronouncing this, but it's called fa Samoa,
Speaker 1: and so there's a lot of concern among the Samoans
Speaker 1: and the government of Samoa that a birthright citizenship might
Speaker 1: disrupt their way of life. The Samoan people right now
Speaker 1: and have not reached a consensus as to whether or
Speaker 1: not they want to have citizenship. And there's a streamlined
Speaker 1: process for people born in Samoa to become US citizens,
Speaker 1: So that means that many Samoans might say, well, we
Speaker 1: still don't want the birthright. If an individual wants to
Speaker 1: become a U. S. Citizen, they can, It will be
Speaker 1: very easy. And I know many of us in the
Speaker 1: United States might sing, why would anyone not want the
Speaker 1: American citizens But some people don't, so I think that's
Speaker 1: also important to respect, and that was one of the
Speaker 1: points that the brief for the Samoan government made, is like,
Speaker 1: why would we want this court by judicial fiat to
Speaker 1: impose U. S citizenship on every person born in Samoa,
Speaker 1: where right now there is not a political consensus, so
Speaker 1: it would almost be colonization in a different way by
Speaker 1: judicial fiat saying now you are automatically U s citizens,
Speaker 1: and so there is this political dimension that perhaps the
Speaker 1: Court didn't want to wait in on. Everything I've read
Speaker 1: about the Insular cases says racist. Course, it said ugly
Speaker 1: racial stereotypes. I mean, some of the language in some
Speaker 1: of those cases is sort of astonishing. Isn't that something
Speaker 1: that the Supreme Court should want to overrule? Yeah, it should,
Speaker 1: But we don't want the Supreme Court to overreach on
Speaker 1: an issue because even though in this case it might
Speaker 1: be a good thing, we don't want them to then
Speaker 1: feel emboldened to overreach. I mean, especially they might be
Speaker 1: gun shy after what happened last term where they didn't
Speaker 1: have to reach Row versus way at all. I mean
Speaker 1: Justice Roberts made that clears concurrence in Daubs, and yet
Speaker 1: they overturned Roversus Wade. They got tremendous criticism. Many people
Speaker 1: are now more than ever, are saying that the Court
Speaker 1: is illegitimate. So it's really important for the courts to
Speaker 1: take a more conservative. By conservative, I don't mean politically conservative.
Speaker 1: But what I mean by that approach is a more
Speaker 1: cautious approach. If they're going to undo precedent, they have
Speaker 1: to do it when the time is right, when it's
Speaker 1: squarely presented. Otherwise, even if it's it's welcome at that moment,
Speaker 1: it allows them to do it in other times when
Speaker 1: it's much more unpopular. For example, in Daubed, the co
Speaker 1: counsel in the case said, the Supreme Court's refusal to
Speaker 1: reconsider the insular cases today continues to reflect that equal
Speaker 1: justice under law does not mean the same for the
Speaker 1: three point six million residents of US territories as it
Speaker 1: does for everyone else. Does he have a point? Yeah,
Speaker 1: I mean he has a point, and that's an important point.
Speaker 1: And the underlying problem of colonization is a significant point,
Speaker 1: especially right now with the death of the Queen of England,
Speaker 1: that issue became very newsworthy and the whole history of
Speaker 1: colonization is an ugly history. So yeah, that's a really
Speaker 1: important substantive point. But and I'm not necessarily defending what
Speaker 1: the Supreme Court did. What I'm saying is why I
Speaker 1: think they did what they did, which is this idea
Speaker 1: that the case has to be presented to them. Let
Speaker 1: me give you a ridiculous example. If this case we're
Speaker 1: about something that has to do with corporate law and
Speaker 1: nothing to do with territories, you wouldn't want them to say, oh,
Speaker 1: and by the way, the insular cases need to be
Speaker 1: overruled here. It's obviously is much more related to the
Speaker 1: insular cases. They could reach it, but my guess is
Speaker 1: the charitable guess is that they wanted it to be
Speaker 1: squarely presented. The other problem is they may not have
Speaker 1: the votes. This is where I'm concerned. What if gors
Speaker 1: which wants to overrule it, thought mayor maybe the other
Speaker 1: two liberals, but the others don't, so they only have
Speaker 1: four votes. And if that's the case, it would be
Speaker 1: worse to then reaffirm those cases. So that could be
Speaker 1: the other one. Another thing is that they knew they
Speaker 1: were going to reaffirm the lower court's decision here, but
Speaker 1: they were going to avoid this issue anyway because they
Speaker 1: didn't have the votes on this particular issue. So I
Speaker 1: think that's much more likely. Even though yeah, sure, there
Speaker 1: is definitely a point that these are racist cases. There's
Speaker 1: a lot of problems with these cases, and we need
Speaker 1: to come to a reckoning with our past and our
Speaker 1: treatment of different areas that we have so called, and
Speaker 1: this world is even used in some of the briefs conquered,
Speaker 1: so I think that is important. The ten Circuit said
Speaker 1: it was for Congress to bestow the privilege of US citizenships. Yeah,
Speaker 1: that's the precedent right now, is that this would be
Speaker 1: Congress's job up and certainly different treaties. I've said that,
Speaker 1: But the Samoan people under principles of self determination right
Speaker 1: now and have not reached a consensus as to whether
Speaker 1: or not they want to have citizenship. You know, we're
Speaker 1: just going to have to wait till another day to
Speaker 1: see what they do about the insular cases, which obviously
Speaker 1: are are problematic, but there were also problems that any
Speaker 1: way the Supreme Court decided in this case could have
Speaker 1: been considered racist as well. So it's a very complicated
Speaker 1: area and this was not called a clean vehicle to
Speaker 1: decide these cases. Thanks so much. And that's Professor and
Speaker 1: Lo Faso of the West Virginia University College of Law.
Speaker 1: Rishi Sunac will be Britain's next Prime Minister. The forty
Speaker 1: two year old member of the Conservative Party will be
Speaker 1: sworn in as the country's third leader in less than
Speaker 1: two months, and it's first ever prime minister of color.
Speaker 1: It is the greatest privilege of my life to be
Speaker 1: able to serve the party I love and give back
Speaker 1: to the country I owe so much too. Joining me
Speaker 1: to discuss a new prime minister is Ambassador Robert Holliman,
Speaker 1: the President and CEO of Crowell and Mooring International. He
Speaker 1: served as Deputy United States Trade Representative from two thousand
Speaker 1: fourteen to two thousand seventeen. So what's your take on
Speaker 1: Rishi Sunac as the new prime minister? This is very
Speaker 1: much a UK decision to make, and the people who
Speaker 1: are in the rooms as they're making the decisions are
Speaker 1: clearly the you know, the best place to understand from
Speaker 1: how Rishi Sunac will serve as the Prime Minister. With
Speaker 1: that said, I think we can see kind of looking
Speaker 1: across the Atlantic from the US, um we can see
Speaker 1: that there's a significant need for the UK to reassert
Speaker 1: a level and show the world a level of stability.
Speaker 1: Clearly that can often be best accomplished with somebody who
Speaker 1: is a known player, but who is um as they
Speaker 1: may determine at the time carrying less of the baggage
Speaker 1: that some of the other potential contenders would have. UM
Speaker 1: And so I think in that sense, you know, he's
Speaker 1: a known player, he's understood. How this affects domestic politics
Speaker 1: within the UK or something I wouldn't be in a
Speaker 1: position to um to comment on, but how this affects
Speaker 1: the UK standing with the US or with the rest
Speaker 1: of the world community. I think the US will be
Speaker 1: um um pleased to see somebody come into place with
Speaker 1: the hope that he will have a um you know,
Speaker 1: a less rocky tenure than his immediate predecessor. I mean,
Speaker 1: one of the things I think is a hallmark and
Speaker 1: a strength of the U s UK relationship is that
Speaker 1: it can, you know, weather a variety of storms and
Speaker 1: turbulence through elections, whether their party elections or national elections
Speaker 1: in either country. So I think we'll move on well
Speaker 1: with mercy soon act. So he said today, there's no
Speaker 1: doubt we face profound economic challenges. Can you describe some
Speaker 1: of the economic challenges that the UK is facing right now? Sure?
Speaker 1: I think they're really threefold. Um. One, there's the purely
Speaker 1: domestic UK economic challenges with rising inflation rates, with recent
Speaker 1: needs for intervention into the British economy UM, and UM
Speaker 1: the high costs that are still associated with them, not
Speaker 1: only the you know, the lingering aftermaths of the COVID pandemic,
Speaker 1: but also the lingering economic challenges as a result of
Speaker 1: Bruxit UM. So they have significant domestic challenges that are
Speaker 1: creating concerns not only in the marketplace within the UK,
Speaker 1: but also on the part of UK citizens. I think
Speaker 1: the second part of it is how does the UK
Speaker 1: UM hold up in the light of the rest of
Speaker 1: the world. UM. You know, they're the fifth largest economy
Speaker 1: in the world, so they matter enormously in terms of
Speaker 1: the global economy. They matter significantly in terms of their
Speaker 1: economic and political stability UM. And simply for the US
Speaker 1: and the UK. They are a key ally of the
Speaker 1: United States, not only on economics but on national security
Speaker 1: and defense UH and supportive democracy, so they play an
Speaker 1: outsize role UM and any lack of stability economically or
Speaker 1: politically in the UK is certainly a source of concern
Speaker 1: for the U. US. And finally, I think in a
Speaker 1: world where we see an increasing number of authoritarian regimes
Speaker 1: that are gaining power, UM, the ability to have a
Speaker 1: democratic regime in the UK. UH in a stable regime
Speaker 1: is important force of the global discussions that are happening.
Speaker 1: I'm not talking about small p politics discussions, but I'm
Speaker 1: just talking about having a strong voice by which the UK,
Speaker 1: as such a large economy can speak up on the
Speaker 1: world stage on issues that go beyond the borders of
Speaker 1: the UK. So those are the key issues that I
Speaker 1: see at play. I think the most important ones that
Speaker 1: the UK is working on now are on their domestic ones.
Speaker 1: How do they restore confidence at home? How do they
Speaker 1: stabilize their economy, how do they manage to deal with
Speaker 1: some of the inflation issues and try to regain in
Speaker 1: the growth they're looking for. Um. The others are certainly
Speaker 1: hugely important, certainly for the US. But I suspect what
Speaker 1: the UK is focused on right now is how do
Speaker 1: they write the ship at home um and get get
Speaker 1: the kind of stability they need. Say, trade relationships now, well,
Speaker 1: it's substantial, and you know the good news I think
Speaker 1: it's it's say, it's sort of it's largely unaffected by
Speaker 1: any of the recent political turmoils within the UK. UM.
Speaker 1: You know, it's a large trade relationship the US is
Speaker 1: accounts for nearly twenty of all trade by the UK,
Speaker 1: so we are a enormous trading partner for the UK.
Speaker 1: The US is obviously a much larger economy, but UK
Speaker 1: trade is five of total US trade, so this is
Speaker 1: an extremely important relationship. I think another factor that really
Speaker 1: underscores the importance of it is around foreign direct investment,
Speaker 1: which is another key element of trade, and the UK
Speaker 1: is the number one destination by country or foreign investment
Speaker 1: coming out of the US UM it's nearly a trillion
Speaker 1: dollars as last year, and the UK is investing merely
Speaker 1: half a trillion dollars in the US in UM, so
Speaker 1: as a source of both bilateral trade but a source
Speaker 1: of the investments in each country is making the other.
Speaker 1: It's enormous and the good news is that that continues
Speaker 1: to be a strong trade relationship and a source of
Speaker 1: economic stability between our two countries. I think the question though,
Speaker 1: that that poses is does that relationship between the US
Speaker 1: and the UK get better and how has the Brexit
Speaker 1: vote and the aftermath of Brexit affected the US and
Speaker 1: the UK, And there I think the jury is still
Speaker 1: out uh And in fact I would say that the
Speaker 1: UK has not obtained even more favorable benefits in trade
Speaker 1: with the U S or other countries that they had
Speaker 1: hoped to obtain following their departure from the EU. The
Speaker 1: UK and the US were negotiating a bilateral free trade
Speaker 1: agreement during the Trump administration. What happened to that? Where
Speaker 1: does that stand? That bilateral free trade agreement really fell
Speaker 1: by the wayside, largely as a result of domestic priorities
Speaker 1: within the United States. Liz Trust had been in the
Speaker 1: Trade Secretary War Administer for the UK when those discussions started,
Speaker 1: so certainly she had a history of working on those discussions. Um,
Speaker 1: I think what happened in the United States it was
Speaker 1: really twofold. One is that the Trade Promotion authority that
Speaker 1: the US Congress had in place that would enable, whether
Speaker 1: it was the Trump administration or the Biden administration, to
Speaker 1: negotiate new free trade agreements on favorable terms, that authority
Speaker 1: expired in the middle of So in the absence of
Speaker 1: that authority, it is difficult for any White House to
Speaker 1: negotiate a free trade agreement, whether with the UK or
Speaker 1: any other country. And those really are the trade promotion
Speaker 1: authority practices that Congress imposes on itself To say that
Speaker 1: if a trade agreement is brought back to them, that
Speaker 1: they will approve it on an expedited approve or disapprove
Speaker 1: or does that they retain the ability to disapprove, but
Speaker 1: that they would act on it on a expedited time frame,
Speaker 1: and that they would consider it as a totality of
Speaker 1: an agreement not subject to the amendment process which Congress
Speaker 1: uses for most typical legislation. So that Trade Promotion Authority
Speaker 1: was in place. It was put in place when I
Speaker 1: was in office in the Obama administration, but expired in
Speaker 1: the middle of last year, and so without Trade Promotion Authority,
Speaker 1: it becomes very difficult for a White House to undertake
Speaker 1: a new free trade negotiation um with confidence that they
Speaker 1: could successfully conclude it and then actually get it approved
Speaker 1: by Congress in the implementing legislation. So that expired. I
Speaker 1: think the second thing is that the Biden administration has
Speaker 1: really been focused on all series of domestic priorities, whether
Speaker 1: it was the Inflation Reduction Act or UM, it was
Speaker 1: the infrastructure bill, or it was focused on clean energy
Speaker 1: other health matters, and so it really has not been
Speaker 1: a top of mind priority for the Biden administration to
Speaker 1: negotiate the agreement, particularly in the absence of trade Promotion authority,
Speaker 1: So it's really um foundered. Uh, and it's sort of
Speaker 1: on a side track now, largely because of US domestic issues.
Speaker 1: I think the question I supposed that, you know, could
Speaker 1: it be revived in the next Congress, you know, that
Speaker 1: remains to be seen. But for the moment, the EU
Speaker 1: and the UK both have relationships with the US that
Speaker 1: are substantially similar. The UK doesn't have anything less favorable
Speaker 1: than the EU has with the US, nor does the
Speaker 1: UK have anything more favorable. We don't have a comprehensive
Speaker 1: trade agreement with the EU and the UK. There are
Speaker 1: a series of smaller agreements that are in place that
Speaker 1: were ranged from things like pharmaceuticals to certain types of
Speaker 1: machines to mined spirits. Those we've negotiated with the UK,
Speaker 1: just like we have with the EU. So what would
Speaker 1: it take for the US to negotiate a trade agreement
Speaker 1: with the UK? I think it would take three things. One,
Speaker 1: it would take the US Congress deciding that they wanted
Speaker 1: to adopt a narrow trade Promotion authority that would say
Speaker 1: that the US could negotiate a free trade agreement with
Speaker 1: the UK and the UK alone, and that would be
Speaker 1: the easiest, most surgical way in which the Congress could
Speaker 1: act to say that they supported a trade agreement with
Speaker 1: the UK, even if they weren't willing to say, as
Speaker 1: they're not that they would support a whole series of
Speaker 1: other free trade agreements with other countries. Secondly, it would
Speaker 1: have to be viewed in the economic interest by both
Speaker 1: the US and the UK, but particularly the US to
Speaker 1: take that on at a time of the coming year
Speaker 1: where we're certainly going to have a series of economic challenges,
Speaker 1: including inflation in both markets. And Three, I think it
Speaker 1: would have take a meeting of the minds that involved
Speaker 1: not only the business community, but labor community and NGOs
Speaker 1: to say that there was something about the long term
Speaker 1: special relationship between the UK and the US that needed
Speaker 1: to be coupled with a special trade agreement. It's entirely possible.
Speaker 1: I don't think it's probable. Thanks for being on the show.
Speaker 1: That's Ambassador Robert Hollingman of Crowland Mooring, and that's it
Speaker 1: for this edition of the Bloomberg Law Show. We member.
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Speaker 1: week night at ten BM Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg