1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio. 2 00:00:08,760 --> 00:00:12,880 Speaker 2: A landmark case before the Supreme Court is testing what 3 00:00:12,920 --> 00:00:16,280 Speaker 2: it means to be an American, and the stakes couldn't 4 00:00:16,280 --> 00:00:20,079 Speaker 2: be higher. The promise of citizenship for children born in 5 00:00:20,079 --> 00:00:23,880 Speaker 2: the United States has been part of our collective understanding 6 00:00:23,920 --> 00:00:27,320 Speaker 2: of the Fourteenth Amendment for more than a century, and 7 00:00:27,440 --> 00:00:31,800 Speaker 2: during oral arguments, Justice Elena Kagan call the government's claim 8 00:00:31,920 --> 00:00:36,560 Speaker 2: that our longstanding view of citizenship is wrong. Revision is 9 00:00:36,720 --> 00:00:38,880 Speaker 2: history and a story. 10 00:00:38,920 --> 00:00:41,559 Speaker 3: What do you think it should take to accept that 11 00:00:41,760 --> 00:00:47,800 Speaker 3: story in terms of the magnitude of the evidence that 12 00:00:47,880 --> 00:00:52,080 Speaker 3: we would need to see in order to accept this 13 00:00:52,440 --> 00:00:55,680 Speaker 3: revisionist theory and in order to change what I think 14 00:00:55,800 --> 00:01:00,040 Speaker 3: people have thought the rule was for more than a cent. 15 00:01:00,640 --> 00:01:04,920 Speaker 2: In an unprecedented move for a sitting president, Trump attended 16 00:01:04,920 --> 00:01:10,039 Speaker 2: the oral arguments and listened as Justice after Justice. Conservatives 17 00:01:10,040 --> 00:01:14,800 Speaker 2: and liberals alike questioned whether his executive order ending birthright 18 00:01:14,920 --> 00:01:19,240 Speaker 2: citizenship could be squared with the Constitution and federal law. 19 00:01:19,800 --> 00:01:23,959 Speaker 2: Justice has called the government's arguments quirky and the precedents 20 00:01:24,040 --> 00:01:29,479 Speaker 2: behind them obscure, and Chief Justice John Roberts dismissed Solicitor 21 00:01:29,600 --> 00:01:34,000 Speaker 2: General John Sowers contention that the country faces a new 22 00:01:34,080 --> 00:01:39,880 Speaker 2: world in which so called birth tourism is undercutting historic understandings. 23 00:01:40,319 --> 00:01:42,240 Speaker 4: But of course we're in a new world now. 24 00:01:42,440 --> 00:01:44,600 Speaker 5: Justice Leader pointed out to where eight billion people are 25 00:01:44,640 --> 00:01:47,480 Speaker 5: one plane ride away from having a child as a 26 00:01:47,520 --> 00:01:50,160 Speaker 5: US citizen. Well, it's a new world, it's the same constitution. 27 00:01:50,680 --> 00:01:54,840 Speaker 2: And Justice's Katanji Brown, Jackson, Amy Coney, Barrett, and Neil 28 00:01:54,920 --> 00:02:00,320 Speaker 2: Gorsuch looked at the practicalities howould the executive order works. 29 00:02:00,320 --> 00:02:03,280 Speaker 2: Determining whether a newborn is a citizen of the United 30 00:02:03,280 --> 00:02:06,600 Speaker 2: States would depend at least in part on how long 31 00:02:06,720 --> 00:02:09,600 Speaker 2: parents intended to stay in the country. 32 00:02:09,600 --> 00:02:12,240 Speaker 6: Because now you say your rule turns on whether the 33 00:02:12,280 --> 00:02:14,400 Speaker 6: person intended to stay in the United States. And I 34 00:02:14,400 --> 00:02:17,240 Speaker 6: think Justice Barrett brought this up. So we're bringing pregnant 35 00:02:17,280 --> 00:02:21,000 Speaker 6: women in for depositions. What are we doing to figure 36 00:02:21,040 --> 00:02:23,600 Speaker 6: this out? The thing about this is then you have 37 00:02:23,639 --> 00:02:26,120 Speaker 6: to adjudicate if you're looking at parents, and if you're 38 00:02:26,120 --> 00:02:29,720 Speaker 6: looking at parents domicile, then you have to adjudicate both 39 00:02:29,760 --> 00:02:30,639 Speaker 6: residents and intent. 40 00:02:30,760 --> 00:02:32,880 Speaker 7: To say, what if you don't know who the parents. 41 00:02:32,520 --> 00:02:37,800 Speaker 8: Are, whose domicile matters? I mean, it's not the child, obviously, 42 00:02:38,240 --> 00:02:42,320 Speaker 8: it's the parents. You'd have us focus on. And you know, 43 00:02:42,360 --> 00:02:44,280 Speaker 8: what if is it the husband, is it the wife? 44 00:02:44,360 --> 00:02:46,519 Speaker 8: What if they're unmarried, who's domicile? 45 00:02:46,880 --> 00:02:51,240 Speaker 2: Every federal court that's considered Trump's executive order has ruled 46 00:02:51,280 --> 00:02:54,640 Speaker 2: against it. My guest is David Cole, a professor at 47 00:02:54,720 --> 00:02:59,720 Speaker 2: Georgetown Law and the former National Legal Director of the ACLU. David, 48 00:02:59,760 --> 00:03:02,840 Speaker 2: you've argued before the Supreme Court. Do you think President 49 00:03:02,919 --> 00:03:05,839 Speaker 2: Trump sitting in the gallery had an impact on any 50 00:03:05,919 --> 00:03:06,799 Speaker 2: of the justices. 51 00:03:07,440 --> 00:03:12,360 Speaker 1: I don't think the justices appreciated the President coming in 52 00:03:12,440 --> 00:03:14,919 Speaker 1: and sitting in the court in the way that he did. 53 00:03:15,160 --> 00:03:18,760 Speaker 1: It's never been done before. There's certainly no rule against it, 54 00:03:18,800 --> 00:03:23,240 Speaker 1: but there is a norm of judicial independence, and there's 55 00:03:23,480 --> 00:03:29,400 Speaker 1: the appearance of the boss coming in and watching his people, 56 00:03:29,440 --> 00:03:32,520 Speaker 1: in particular the people he appointed, and making sure they 57 00:03:32,680 --> 00:03:35,880 Speaker 1: do his bidding. That's just a bad look. It's a 58 00:03:35,880 --> 00:03:38,160 Speaker 1: bad look for the president, it's a bad look for 59 00:03:38,200 --> 00:03:40,000 Speaker 1: the court, it's a bad look for the country. So 60 00:03:40,360 --> 00:03:44,120 Speaker 1: I very much doubt that they appreciated his presence. I 61 00:03:44,200 --> 00:03:48,360 Speaker 1: don't think it changed their behavior. They conducted the argument 62 00:03:48,360 --> 00:03:50,320 Speaker 1: in the exact way that you know, I would expect 63 00:03:50,320 --> 00:03:53,120 Speaker 1: them to. I would say they rose above it. And 64 00:03:53,200 --> 00:03:56,320 Speaker 1: of course he attended only to hear his side of 65 00:03:56,320 --> 00:03:59,280 Speaker 1: the argument and left before hearing the other side of 66 00:03:59,320 --> 00:04:02,920 Speaker 1: the argument, which is a fitting symbol of this president's 67 00:04:03,320 --> 00:04:08,120 Speaker 1: complete disregard for anyone who disagrees with him, regardless of 68 00:04:08,240 --> 00:04:09,360 Speaker 1: the merits of the matter. 69 00:04:09,920 --> 00:04:13,560 Speaker 2: Let's turn to the arguments themselves. The language of the 70 00:04:13,600 --> 00:04:18,039 Speaker 2: fourteenth Amendment is, all persons born or naturalized in the 71 00:04:18,160 --> 00:04:23,400 Speaker 2: United States and subject to the jurisdiction thereof are citizens 72 00:04:23,400 --> 00:04:27,080 Speaker 2: of the United States. The administration's argument is that to 73 00:04:27,120 --> 00:04:30,599 Speaker 2: be subject to the jurisdiction, a person has to have 74 00:04:30,680 --> 00:04:34,640 Speaker 2: a direct and immediate allegiance to the United States and 75 00:04:34,720 --> 00:04:38,480 Speaker 2: have established domicile here, and a lot of the justices 76 00:04:38,520 --> 00:04:41,919 Speaker 2: asked the Solicitor General basically, you know where are you 77 00:04:41,960 --> 00:04:43,240 Speaker 2: getting that from? 78 00:04:43,440 --> 00:04:47,800 Speaker 1: Exactly. Their argument is, you have to establish domicile, and 79 00:04:47,839 --> 00:04:52,400 Speaker 1: what domicile means is an intent to remain permanently and 80 00:04:52,480 --> 00:04:55,640 Speaker 1: the legal right to do so. And as a result, 81 00:04:55,880 --> 00:05:01,320 Speaker 1: that would extend birthright citizenship only to people who are 82 00:05:01,839 --> 00:05:06,320 Speaker 1: born of lawful permanent residents, not to the millions of 83 00:05:06,400 --> 00:05:09,160 Speaker 1: people who are born to folks who are here on 84 00:05:09,520 --> 00:05:15,440 Speaker 1: temporary visas, workers visas, student visas, visitors visas, and not 85 00:05:15,640 --> 00:05:18,720 Speaker 1: to the millions of people who are here unlawfully. So 86 00:05:18,920 --> 00:05:22,240 Speaker 1: that's their argument. It is not in the text. Domicile 87 00:05:22,320 --> 00:05:25,000 Speaker 1: is not in the text. They relied heavily on the 88 00:05:25,040 --> 00:05:29,160 Speaker 1: fact that in the Supreme Court decision Wang kim ark 89 00:05:29,279 --> 00:05:33,720 Speaker 1: in eighteen ninety eight that addressed whether the child of 90 00:05:34,320 --> 00:05:39,440 Speaker 1: Chinese immigrants was a citizen because he was born here, 91 00:05:39,960 --> 00:05:47,839 Speaker 1: the court described the parents as lawfully present domiciled Chinese aliens. 92 00:05:48,279 --> 00:05:50,800 Speaker 1: And so he says, well, that's the holding of the case. 93 00:05:51,200 --> 00:05:54,440 Speaker 1: It only applies to people who are domiciled here, shouldn't 94 00:05:54,440 --> 00:05:58,400 Speaker 1: apply any anymore broadly. But the case itself does not 95 00:05:58,800 --> 00:06:03,039 Speaker 1: actually say that domicile is a requirement. In fact, when 96 00:06:03,040 --> 00:06:07,840 Speaker 1: it addresses domicile, it expressly says that people who are 97 00:06:07,880 --> 00:06:11,560 Speaker 1: born here are subject to our jurisdiction, meaning they have 98 00:06:11,640 --> 00:06:15,719 Speaker 1: to follow our laws, whether they are here temporarily or 99 00:06:15,880 --> 00:06:19,800 Speaker 1: for a long term, independent of any intention to reside 100 00:06:19,880 --> 00:06:23,440 Speaker 1: here or domicile here. So the court actually rejected this 101 00:06:23,600 --> 00:06:27,600 Speaker 1: very argument. But because the parents in that case happened 102 00:06:27,680 --> 00:06:31,280 Speaker 1: to be domiciled, the United States is kind of grasping 103 00:06:31,320 --> 00:06:34,480 Speaker 1: for straws, I think, and trying to make that a principle. 104 00:06:34,720 --> 00:06:39,120 Speaker 2: And yet at least five justices asked questions about domicile. 105 00:06:39,560 --> 00:06:42,080 Speaker 2: The Chief said, isn't it at least something to be 106 00:06:42,240 --> 00:06:45,840 Speaker 2: concerned about? And those were the questions the ACL you 107 00:06:46,080 --> 00:06:48,240 Speaker 2: lawyers seemed to be struggling with a bit. 108 00:06:48,560 --> 00:06:50,200 Speaker 1: Well, I don't know that you were struggling with it. 109 00:06:50,240 --> 00:06:52,800 Speaker 1: I think what she said was no. In fact, when 110 00:06:52,839 --> 00:06:55,919 Speaker 1: you read the decision onue kim Ark, what it says 111 00:06:56,120 --> 00:07:01,720 Speaker 1: is that subject to the jurisdiction was shorthand we are 112 00:07:01,760 --> 00:07:07,080 Speaker 1: adopting the law that applies at the time in the country, 113 00:07:07,120 --> 00:07:10,040 Speaker 1: which was the English common law, which was if you 114 00:07:10,120 --> 00:07:13,800 Speaker 1: were born on our soil, you were a citizen, with 115 00:07:14,400 --> 00:07:21,440 Speaker 1: very specific exceptions children of foreign ambassadors, children born in 116 00:07:21,880 --> 00:07:26,560 Speaker 1: land that is occupied by a foreign power, and children 117 00:07:26,720 --> 00:07:31,120 Speaker 1: of Native Americans on tribal land. And in each of 118 00:07:31,160 --> 00:07:34,960 Speaker 1: those instances you are not subject to the jurisdiction of 119 00:07:34,960 --> 00:07:37,720 Speaker 1: the United States, because there's a fiction that sort of 120 00:07:37,760 --> 00:07:41,920 Speaker 1: even though you're physically here, you are imediately subject to 121 00:07:41,960 --> 00:07:45,320 Speaker 1: the jurisdiction of the country that you're the ambassador for, 122 00:07:45,520 --> 00:07:50,560 Speaker 1: or the country that occupies the territory or the American 123 00:07:50,600 --> 00:07:55,400 Speaker 1: tribe that occupies the tribal land. Those were the only exceptions. 124 00:07:55,560 --> 00:07:58,960 Speaker 1: That's what the Supreme Court held in eighteen ninety eight, 125 00:07:59,360 --> 00:08:03,760 Speaker 1: relying on many many authorities that had identified again and 126 00:08:03,800 --> 00:08:07,240 Speaker 1: again that those are the only exceptions, and that none 127 00:08:07,320 --> 00:08:09,520 Speaker 1: of those exceptions turned on domicile. 128 00:08:10,400 --> 00:08:14,480 Speaker 2: Did you think that any of the justices were buying 129 00:08:14,520 --> 00:08:16,680 Speaker 2: into the government's argument. 130 00:08:16,960 --> 00:08:22,160 Speaker 1: Justice Alito, without question, probably Justice Thomas as well. I 131 00:08:22,200 --> 00:08:26,120 Speaker 1: think Justice Barrett very uncomfortable with this argument. I mean, 132 00:08:26,160 --> 00:08:29,440 Speaker 1: she said, what about what about the children of slaves? 133 00:08:29,840 --> 00:08:33,480 Speaker 1: The whole point of this fourteenth Amendment was to make 134 00:08:34,040 --> 00:08:38,240 Speaker 1: the children of slaves citizens and to make it clear 135 00:08:38,280 --> 00:08:40,680 Speaker 1: that they are citizens if they are born here. Well, 136 00:08:41,160 --> 00:08:46,640 Speaker 1: slaves came here involuntarily. They were brought here against their will, 137 00:08:47,120 --> 00:08:49,480 Speaker 1: she says, you know, if anything, they wanted to get 138 00:08:49,520 --> 00:08:51,880 Speaker 1: out of here as quickly as they could. And yet 139 00:08:52,240 --> 00:08:54,360 Speaker 1: the whole point of this was that their children, because 140 00:08:54,400 --> 00:08:58,080 Speaker 1: they were born here, are citizens. And so that's directly 141 00:08:58,200 --> 00:09:01,079 Speaker 1: contrary to the domicile argument. And then I think a 142 00:09:01,160 --> 00:09:05,920 Speaker 1: number of justices also asked about the difficulty of determining domicile. 143 00:09:06,000 --> 00:09:09,800 Speaker 1: What is domicile? How do you determine it? So I 144 00:09:10,000 --> 00:09:14,400 Speaker 1: count six votes coming out of there that seem quite 145 00:09:15,360 --> 00:09:19,840 Speaker 1: clearly on the side of the ACLU, and possibly seven. 146 00:09:19,920 --> 00:09:22,559 Speaker 1: I think Justice Kavanaugh a little bit harder to read, 147 00:09:22,679 --> 00:09:24,560 Speaker 1: but I think you're likely to see a six to 148 00:09:24,600 --> 00:09:27,400 Speaker 1: three or seven to two vote. And in part it's 149 00:09:27,480 --> 00:09:32,000 Speaker 1: because this domicile theory number one was rejected in Juan 150 00:09:32,120 --> 00:09:35,520 Speaker 1: kim Ark. They specifically said, you are subject to the 151 00:09:35,559 --> 00:09:39,080 Speaker 1: jurisdiction and therefore a citizen, even if your parents are 152 00:09:39,080 --> 00:09:44,560 Speaker 1: here only temporarily and without any domicile. And because the 153 00:09:44,600 --> 00:09:50,480 Speaker 1: sort of related concept of allegiance which the Solicitor General 154 00:09:50,640 --> 00:09:55,480 Speaker 1: was relying upon proves far too much, and Justice Alito's 155 00:09:55,600 --> 00:09:59,400 Speaker 1: questions to the ACLU attorney Sicilia Wong made this clear. 156 00:09:59,440 --> 00:10:03,160 Speaker 1: He says, what about an Iranian who comes here illegally 157 00:10:03,720 --> 00:10:07,520 Speaker 1: and has a child. That child is an Iranian citizen 158 00:10:07,600 --> 00:10:10,040 Speaker 1: and he has to fight, you know, in the Iranian 159 00:10:10,240 --> 00:10:13,320 Speaker 1: army if he ever goes back to Iran. And yet 160 00:10:13,360 --> 00:10:16,319 Speaker 1: you're saying he's subject to the jurisdiction in the United States. 161 00:10:16,760 --> 00:10:20,400 Speaker 1: Isn't he subject to the jurisdiction of Iran? And the 162 00:10:20,520 --> 00:10:24,280 Speaker 1: answer to that, which both Sicilia Wong gave and Justice 163 00:10:24,320 --> 00:10:29,560 Speaker 1: so tomayor underscored, is that argument would suggest that no 164 00:10:29,600 --> 00:10:33,480 Speaker 1: one who is a foreign national and has a child here, 165 00:10:33,960 --> 00:10:37,599 Speaker 1: none of their kids are citizens, because all foreign nationals 166 00:10:38,000 --> 00:10:42,679 Speaker 1: have allegiance in that sense to the country of their citizenship. 167 00:10:42,679 --> 00:10:45,199 Speaker 1: If you're a Mexican and you are here, even if 168 00:10:45,200 --> 00:10:48,720 Speaker 1: you're a lawful permanent resident, you are a citizen of Mexico. 169 00:10:48,760 --> 00:10:50,960 Speaker 1: You're not a citizen in the United States. And so 170 00:10:51,200 --> 00:10:54,400 Speaker 1: the extent you have, you know, allegiance, you have allegiance 171 00:10:54,480 --> 00:10:57,440 Speaker 1: to Mexico, not to this country. And yet even the 172 00:10:57,480 --> 00:11:01,320 Speaker 1: government does not argue that lawful permit a residents children 173 00:11:01,640 --> 00:11:05,360 Speaker 1: should not be recognized as citizens, So their reliance on 174 00:11:05,440 --> 00:11:09,880 Speaker 1: allegiance doesn't explain their own theory, and their reliance on 175 00:11:10,000 --> 00:11:14,880 Speaker 1: domicile is contrary to the English common law, the American 176 00:11:14,920 --> 00:11:18,920 Speaker 1: common law, and the decisive Supreme Court case on the 177 00:11:18,920 --> 00:11:22,400 Speaker 1: matter Long kim Ark. To overturn all of that would 178 00:11:22,440 --> 00:11:25,840 Speaker 1: be a really remarkable upheaval of sort of the way 179 00:11:26,280 --> 00:11:30,160 Speaker 1: we have long understood citizenship to operate in this country. 180 00:11:30,200 --> 00:11:34,640 Speaker 1: And I heard questioning of the scope of the ACLU's position, 181 00:11:35,120 --> 00:11:37,320 Speaker 1: But I did not hear a lot of support for 182 00:11:37,400 --> 00:11:40,400 Speaker 1: the notion that the Court should change the rules that 183 00:11:40,600 --> 00:11:44,000 Speaker 1: govern the citizenship of millions of people in this country. 184 00:11:44,200 --> 00:11:47,080 Speaker 2: Stay with me, David, coming up next, we'll discuss the 185 00:11:47,120 --> 00:11:52,679 Speaker 2: implications of a decision made on statutory grounds rather than constitutional. 186 00:11:52,840 --> 00:11:55,440 Speaker 2: I'm June Grosso and this is Bloomberg. 187 00:11:58,360 --> 00:12:03,520 Speaker 4: Right ship Ah wait all right? 188 00:12:05,480 --> 00:12:09,120 Speaker 2: As the Justice has heard arguments on Wednesday about President 189 00:12:09,160 --> 00:12:14,680 Speaker 2: Trump's attempt to end birthright citizenship, protesters rallied outside the building. 190 00:12:15,240 --> 00:12:18,920 Speaker 2: Among them was Norman Wang, a seventy five year old 191 00:12:18,960 --> 00:12:23,400 Speaker 2: retired carpenter. It was his great grandfather who was born 192 00:12:23,440 --> 00:12:28,160 Speaker 2: in San Francisco to Chinese immigrants, but was prevented from 193 00:12:28,240 --> 00:12:31,760 Speaker 2: re entering the country after a trip under the Chinese 194 00:12:31,800 --> 00:12:36,640 Speaker 2: Exclusion Act. His case, United States versus Wang kim Ark, 195 00:12:37,040 --> 00:12:42,199 Speaker 2: became the landmark ruling that enshrined birthright citizenship in our laws, 196 00:12:42,320 --> 00:12:47,280 Speaker 2: establishing in eighteen ninety eight that the Fourteenth Amendment guarantees 197 00:12:47,360 --> 00:12:52,240 Speaker 2: citizenship to virtually everyone born on US soil. But Norman 198 00:12:52,320 --> 00:12:56,040 Speaker 2: Wang says he's worried that the principle established in his 199 00:12:56,200 --> 00:12:58,679 Speaker 2: grandfather's case is in jeopardy. 200 00:13:00,000 --> 00:13:04,400 Speaker 8: Struggle that all of us need to participate because this 201 00:13:04,600 --> 00:13:06,200 Speaker 8: is for the soul of our country. 202 00:13:06,920 --> 00:13:10,360 Speaker 2: Wong may not have to worry. During the oral arguments, 203 00:13:10,640 --> 00:13:14,880 Speaker 2: a majority of Supreme Court justices from across the ideological 204 00:13:15,000 --> 00:13:20,800 Speaker 2: spectrum expressed skepticism about the Trump administration's argument that children 205 00:13:20,920 --> 00:13:24,640 Speaker 2: of non citizens are not subject to the jurisdiction of 206 00:13:24,679 --> 00:13:28,640 Speaker 2: the United States under the fourteenth Amendment, and therefore are 207 00:13:28,679 --> 00:13:32,480 Speaker 2: not entitled to birthright citizenship. It was telling that the 208 00:13:32,559 --> 00:13:36,440 Speaker 2: Chief Justice found the legal basis for the government's position 209 00:13:36,920 --> 00:13:40,040 Speaker 2: questionable or quirky, as he put it. 210 00:13:40,400 --> 00:13:42,400 Speaker 5: You obviously put a lot of weight on subject to 211 00:13:42,400 --> 00:13:46,120 Speaker 5: the jurisdiction thereof, But the examples you give to support 212 00:13:46,240 --> 00:13:51,280 Speaker 5: that strike me as very quirky. You know, children of ambassadors, 213 00:13:51,800 --> 00:13:56,079 Speaker 5: children of enemies during a hostile invasion, children on warships, 214 00:13:56,679 --> 00:14:00,280 Speaker 5: and then you expand it to the whole class of 215 00:14:01,400 --> 00:14:04,960 Speaker 5: illegal aliens are here in the country. I'm not quite 216 00:14:05,040 --> 00:14:07,720 Speaker 5: sure how you can get to that big group from 217 00:14:07,760 --> 00:14:10,800 Speaker 5: such tiny and sort of idiosyncratic examples. 218 00:14:11,559 --> 00:14:15,560 Speaker 2: Well, just as Brett Kavanaugh, a Trump appointee, brought out 219 00:14:15,559 --> 00:14:19,520 Speaker 2: the fact that in federal statutes enacted in nineteen forty, 220 00:14:19,520 --> 00:14:24,920 Speaker 2: in nineteen fifty two, Congress used the identical language, suggesting 221 00:14:25,080 --> 00:14:29,320 Speaker 2: it was endorsing the long held view of birthright citizenship. 222 00:14:29,880 --> 00:14:32,720 Speaker 9: By the time of the nineteen forty and nineteen fifty 223 00:14:32,760 --> 00:14:39,880 Speaker 9: two congressional actions, where Congress repeats subject to the jurisdiction 224 00:14:40,000 --> 00:14:45,280 Speaker 9: thereof given Juan kim Ark, one might have expected Congress 225 00:14:45,280 --> 00:14:49,080 Speaker 9: to use a different phrase if it wanted to try 226 00:14:49,480 --> 00:14:54,200 Speaker 9: to disagree with Wan kim Ark on what the scope 227 00:14:54,360 --> 00:14:58,840 Speaker 9: of birthright citizenship or the scope of citizenship should be. 228 00:14:59,560 --> 00:15:03,360 Speaker 9: And yet Congress repeats that same language, knowing what the 229 00:15:03,360 --> 00:15:04,920 Speaker 9: interpretation had been. 230 00:15:05,400 --> 00:15:08,640 Speaker 2: At the end of two hours of oral arguments, it 231 00:15:08,800 --> 00:15:11,920 Speaker 2: seemed that there was a majority of justices who would 232 00:15:12,000 --> 00:15:16,680 Speaker 2: vote against President Trump's attempt to end birthright citizenship by 233 00:15:16,760 --> 00:15:21,720 Speaker 2: executive order, although there's never certainty until the decision comes out. 234 00:15:21,920 --> 00:15:25,320 Speaker 2: I've been talking to Georgetown law professor David Cole, the 235 00:15:25,400 --> 00:15:29,400 Speaker 2: former National Legal Director of the ACLU. David, it was 236 00:15:29,480 --> 00:15:34,680 Speaker 2: striking that several justices questioned just how this executive order 237 00:15:34,720 --> 00:15:38,440 Speaker 2: would work in practice, and I think Justice Katanji Brown 238 00:15:38,600 --> 00:15:42,000 Speaker 2: Jackson asked the most concrete questions. 239 00:15:42,120 --> 00:15:43,360 Speaker 4: How does this work? 240 00:15:43,680 --> 00:15:47,600 Speaker 6: Are you suggesting that when a baby is born people 241 00:15:47,720 --> 00:15:52,000 Speaker 6: have to have documents, present documents. Is this happening in 242 00:15:52,040 --> 00:15:56,320 Speaker 6: the delivery room? How are we determining when or whether 243 00:15:56,760 --> 00:16:00,240 Speaker 6: a newborn child is a citizen of the United States under. 244 00:16:00,880 --> 00:16:02,800 Speaker 2: Did the government have an answer for how they would 245 00:16:02,800 --> 00:16:03,240 Speaker 2: work this? 246 00:16:04,400 --> 00:16:07,320 Speaker 1: No, they do not, And that's one of the reasons 247 00:16:07,320 --> 00:16:10,840 Speaker 1: that domicile is such a bad test. And I think, 248 00:16:11,200 --> 00:16:14,160 Speaker 1: you know, was rejected in wankim Ark and has not 249 00:16:14,360 --> 00:16:17,840 Speaker 1: been the test for the last one hundred plus years, 250 00:16:18,240 --> 00:16:21,040 Speaker 1: and I think would not be a workable scheme. So 251 00:16:21,160 --> 00:16:23,760 Speaker 1: I mean, I think what the challengers have going for 252 00:16:23,840 --> 00:16:28,440 Speaker 1: them is the text of the Constitution, the history of 253 00:16:28,520 --> 00:16:32,280 Speaker 1: English common law and American common law, the Supreme Court 254 00:16:32,320 --> 00:16:37,160 Speaker 1: decision on point, and the fact that ever since there's 255 00:16:37,200 --> 00:16:41,920 Speaker 1: been a widespread consensus that people who are born here 256 00:16:42,560 --> 00:16:46,320 Speaker 1: subject to these very limited exceptions, are citizens. And to 257 00:16:46,480 --> 00:16:50,640 Speaker 1: sort of throw that into question, not just going forward, 258 00:16:50,760 --> 00:16:53,880 Speaker 1: but on the government's theory, they are only asking for 259 00:16:54,000 --> 00:16:56,680 Speaker 1: prospective relief, meaning it would only apply to people who 260 00:16:56,720 --> 00:17:00,000 Speaker 1: are born after the Court's decision. But that's because that's 261 00:17:00,080 --> 00:17:03,320 Speaker 1: what the executive word does. But their theory is that 262 00:17:03,520 --> 00:17:06,600 Speaker 1: unless you were born of a permanent lawful to resident 263 00:17:06,960 --> 00:17:08,800 Speaker 1: you are not a citizen. That would call into the 264 00:17:08,880 --> 00:17:12,320 Speaker 1: question the citizenship of millions of people here, And the 265 00:17:12,359 --> 00:17:16,000 Speaker 1: next day Trump could issue a retroactive executive order and 266 00:17:16,160 --> 00:17:19,879 Speaker 1: call all of their citizenship into questions. So again, I 267 00:17:19,920 --> 00:17:22,439 Speaker 1: don't know, And you can never be confident coming out 268 00:17:22,480 --> 00:17:24,560 Speaker 1: of an argument most of the time, you can't be 269 00:17:24,640 --> 00:17:27,040 Speaker 1: confident of which way they're going to rule. But it 270 00:17:27,040 --> 00:17:30,320 Speaker 1: would be such a kind of an earthquake in terms 271 00:17:30,359 --> 00:17:35,560 Speaker 1: of how we understand citizenship in this country. For the 272 00:17:35,640 --> 00:17:39,600 Speaker 1: Court to suddenly say, you know, millions of people here, 273 00:17:39,880 --> 00:17:43,480 Speaker 1: if they're citizens, their citizens by mistake, and no one's 274 00:17:43,480 --> 00:17:45,720 Speaker 1: foreign national kids are going to be a citizen going 275 00:17:45,760 --> 00:17:49,000 Speaker 1: forward unless you're a Green card holder. I think that's very, 276 00:17:49,080 --> 00:17:51,640 Speaker 1: very disruptive, And I just don't see. There's no sort 277 00:17:51,680 --> 00:17:54,720 Speaker 1: of line of cases that leads us in that direction. 278 00:17:55,280 --> 00:17:59,240 Speaker 1: There's no sort of strong political movement that has been 279 00:17:59,480 --> 00:18:03,800 Speaker 1: arguing for that. It's a kind of wacko position. That's 280 00:18:03,800 --> 00:18:07,280 Speaker 1: a technical term that the president that the President has 281 00:18:07,320 --> 00:18:10,679 Speaker 1: been advancing. You know, it's consistent with a lot of 282 00:18:10,720 --> 00:18:14,880 Speaker 1: his anti immigrant views, but it just doesn't have legal, 283 00:18:15,440 --> 00:18:19,199 Speaker 1: any legal foundation, And for the court to kind of 284 00:18:19,640 --> 00:18:22,760 Speaker 1: impose that of the country would be quite remarkable. And again, 285 00:18:22,880 --> 00:18:25,560 Speaker 1: with the exception of Alito and Thomas, I don't think 286 00:18:25,680 --> 00:18:28,800 Speaker 1: the Trump administration could walk out of that argument confident 287 00:18:28,840 --> 00:18:30,800 Speaker 1: of anyone's vote other than those two. 288 00:18:31,560 --> 00:18:35,200 Speaker 2: Just as Kavanaugh asked, why would we address the constitutional 289 00:18:35,359 --> 00:18:39,840 Speaker 2: issue when our usual practice is to resolve things on 290 00:18:39,960 --> 00:18:44,600 Speaker 2: statutory grounds rather than constitutional grounds. Will you explain what 291 00:18:44,640 --> 00:18:45,600 Speaker 2: he was getting at there? 292 00:18:46,720 --> 00:18:50,359 Speaker 1: Yes, So the case actually presents two questions. Does the 293 00:18:50,440 --> 00:18:55,439 Speaker 1: Constitution forbid the executive order denying birth right citizenship? And 294 00:18:55,480 --> 00:18:58,920 Speaker 1: then does a statute that Congress passed in nineteen forty 295 00:18:58,960 --> 00:19:02,399 Speaker 1: and then re enacted in nineteen fifty two preclude the 296 00:19:02,480 --> 00:19:06,320 Speaker 1: executive order on birth right citizenship? The statute uses the 297 00:19:06,400 --> 00:19:11,159 Speaker 1: exact same terms that the Constitution does. But when the 298 00:19:11,240 --> 00:19:14,439 Speaker 1: statute was adopted in nineteen forty and then again in 299 00:19:14,520 --> 00:19:19,119 Speaker 1: nineteen fifty two, there was no dispute that persons born 300 00:19:19,160 --> 00:19:23,679 Speaker 1: here are citizens. So if you're asking about the original 301 00:19:23,760 --> 00:19:27,920 Speaker 1: meaning of the Fourteenth Amendment, you know there's evidence going 302 00:19:28,080 --> 00:19:32,760 Speaker 1: both ways. The sg cited some evidence, the ACLU attorney 303 00:19:32,760 --> 00:19:37,440 Speaker 1: excited other evidence. Ultimately, in wankim Ark, the Supreme Court 304 00:19:37,480 --> 00:19:41,280 Speaker 1: resolved that dispute but by the time Congress is passing 305 00:19:41,280 --> 00:19:45,359 Speaker 1: statutes in nineteen forty, in nineteen fifty two, everybody understood 306 00:19:45,560 --> 00:19:47,520 Speaker 1: this is what it means. You know, if you're born here, 307 00:19:47,640 --> 00:19:50,200 Speaker 1: you're a citizen. So even if we're not clear about 308 00:19:50,240 --> 00:19:53,919 Speaker 1: the Constitution, surely we know what Congress meant when it 309 00:19:53,960 --> 00:19:57,800 Speaker 1: passed this statute. Therefore, the Court could decide the question 310 00:19:57,960 --> 00:20:03,639 Speaker 1: only on statutory ground, leave the constitutional question unresolved, and 311 00:20:03,680 --> 00:20:07,119 Speaker 1: that's a more minimalist decision, and I think Kavanaugh was 312 00:20:07,160 --> 00:20:11,040 Speaker 1: sort of exploring that as a possibility. The difference between 313 00:20:11,040 --> 00:20:14,080 Speaker 1: deciding it on a statutory ground and deciding on a 314 00:20:14,119 --> 00:20:16,359 Speaker 1: constitutional ground is that if you decided it on the 315 00:20:16,400 --> 00:20:21,480 Speaker 1: statutory ground, then Congress the very next day could pass 316 00:20:21,520 --> 00:20:27,280 Speaker 1: a statute that says no children of illegal immigrants should 317 00:20:27,280 --> 00:20:30,240 Speaker 1: be citizens, and then that would go back up to 318 00:20:30,280 --> 00:20:33,879 Speaker 1: the Supreme Court on the question of whether that's consistent 319 00:20:33,920 --> 00:20:37,919 Speaker 1: with the Constitution. So, you know, it leaves open room 320 00:20:38,240 --> 00:20:43,280 Speaker 1: for Congress to weigh in and express its views. If 321 00:20:43,320 --> 00:20:48,440 Speaker 1: you decide the case only on statutory grounds, and as possible, 322 00:20:48,480 --> 00:20:51,800 Speaker 1: the Court does that, it's the narrowest way to resolve 323 00:20:51,800 --> 00:20:54,800 Speaker 1: the case. I think, given that the Supreme Court in 324 00:20:54,840 --> 00:20:58,520 Speaker 1: Huang Kim ark already decided the constitutional question to sort 325 00:20:58,560 --> 00:21:02,600 Speaker 1: of decide only the statute question would raise questions at 326 00:21:02,680 --> 00:21:06,000 Speaker 1: least about this citizenship of a whole lot of people 327 00:21:06,040 --> 00:21:10,280 Speaker 1: here and invite sort of political meddling with you know, 328 00:21:10,320 --> 00:21:13,200 Speaker 1: who's a citizen and who's not. And the whole purpose 329 00:21:13,280 --> 00:21:17,639 Speaker 1: of the constitutional amendment was to disable the political branches 330 00:21:18,080 --> 00:21:22,000 Speaker 1: from defining away citizenship as they had done with respect 331 00:21:22,040 --> 00:21:23,479 Speaker 1: to the children of slaves. 332 00:21:24,000 --> 00:21:27,680 Speaker 2: Every court that reviewed Trump's executive order ruled against it. 333 00:21:28,160 --> 00:21:33,720 Speaker 2: Senior Seattle judge John Kunauer called it blatantly unconstitutional and 334 00:21:33,800 --> 00:21:36,399 Speaker 2: said it boggles my mind that a lawyer could argue 335 00:21:36,440 --> 00:21:39,040 Speaker 2: to the contrary. And this was looked at as a 336 00:21:39,080 --> 00:21:42,879 Speaker 2: sort of fringe theory when the executive order came out. 337 00:21:43,560 --> 00:21:45,760 Speaker 2: So why do you think the Supreme Court felt the 338 00:21:45,760 --> 00:21:47,080 Speaker 2: need to take the case. 339 00:21:47,640 --> 00:21:51,280 Speaker 1: Well, I think there's a sense that it's an important question. 340 00:21:52,040 --> 00:21:56,200 Speaker 1: And generally speaking, I think when the president has acted 341 00:21:56,920 --> 00:22:01,040 Speaker 1: in a national way and lower core have declared his 342 00:22:01,160 --> 00:22:06,240 Speaker 1: actions unconstitutional, there's almost a presumption that the Supreme Court 343 00:22:06,600 --> 00:22:10,720 Speaker 1: should hear the case, that the president deserves to have 344 00:22:10,920 --> 00:22:15,000 Speaker 1: his actions reviewed by the Supreme Court, and not just 345 00:22:15,440 --> 00:22:19,280 Speaker 1: invalidated by lower courts without the Supreme Court even weighing 346 00:22:19,320 --> 00:22:22,840 Speaker 1: in the same presumption operates with respect to decisions that 347 00:22:22,920 --> 00:22:27,639 Speaker 1: declare statutes unconstitutional. Even where there's no disagreement among the 348 00:22:27,680 --> 00:22:30,520 Speaker 1: lower courts that a statute's unconstitutional, the Supreme Court will 349 00:22:30,520 --> 00:22:34,160 Speaker 1: almost always take that case up because they feel they 350 00:22:34,200 --> 00:22:37,080 Speaker 1: owe it to their coequal branch of government. And I 351 00:22:37,080 --> 00:22:39,600 Speaker 1: think that's the case here as well. 352 00:22:40,119 --> 00:22:45,000 Speaker 2: This case is another test of Trump's assertions of executive 353 00:22:45,160 --> 00:22:50,040 Speaker 2: power that defy long standing precedent, and this Court's conservative 354 00:22:50,200 --> 00:22:55,439 Speaker 2: majority has largely ruled in Trump's favor until it struck 355 00:22:55,480 --> 00:22:58,800 Speaker 2: down his global tariffs, and this could be the second 356 00:22:58,840 --> 00:23:01,960 Speaker 2: major defeat for him at the Court, in the first 357 00:23:02,040 --> 00:23:06,800 Speaker 2: immigration related policy to reach the Court for a final ruling. 358 00:23:07,080 --> 00:23:08,960 Speaker 2: Do you think the tide is turning a bit? 359 00:23:09,200 --> 00:23:10,600 Speaker 1: You know, at the end of this term, I think 360 00:23:10,600 --> 00:23:13,199 Speaker 1: you're going to see the Supreme Court having rejected his 361 00:23:13,280 --> 00:23:17,000 Speaker 1: tariff policy, rejected his birthright decisions of policy, rejected his 362 00:23:17,040 --> 00:23:20,480 Speaker 1: effort to try to take control of the Federal Reserve Board. 363 00:23:20,840 --> 00:23:23,639 Speaker 1: Those are significant decisions, and I think if they do 364 00:23:23,760 --> 00:23:26,080 Speaker 1: come out, they show that even if the Court is 365 00:23:26,200 --> 00:23:29,840 Speaker 1: very conservative even if Trump is appointed three of their justices. 366 00:23:30,240 --> 00:23:34,320 Speaker 1: They are an important check when they are doing their job. 367 00:23:34,359 --> 00:23:36,760 Speaker 1: They are an important check on executive overreach. 368 00:23:37,240 --> 00:23:40,840 Speaker 2: We will find out the answer definitively by the end 369 00:23:40,840 --> 00:23:43,760 Speaker 2: of June. Thanks for spending so much time with me, David. 370 00:23:44,040 --> 00:23:48,200 Speaker 2: That's Professor David Cole of Georgetown Law. Coming up next 371 00:23:48,200 --> 00:23:51,840 Speaker 2: on the Bloomberg Law Show. The Supreme Court ruled against 372 00:23:51,840 --> 00:23:57,200 Speaker 2: Colorado's ban on conversion therapy for LGBTQ minors this week. 373 00:23:57,800 --> 00:24:00,480 Speaker 2: It's a decision that will affect laws in more than 374 00:24:00,520 --> 00:24:04,480 Speaker 2: half the states. I'm June Grosso and you're listening to Bloomberg. 375 00:24:05,840 --> 00:24:10,240 Speaker 2: This week, the Supreme Court ruled against Colorado's law banning 376 00:24:10,320 --> 00:24:15,440 Speaker 2: conversion therapy for LGBTQ minors. In an eight to one ruling, 377 00:24:15,720 --> 00:24:19,560 Speaker 2: The justices sided with a Christian counselor who says she 378 00:24:19,640 --> 00:24:23,840 Speaker 2: has a constitutional right to engage in talk therapy to 379 00:24:23,920 --> 00:24:28,240 Speaker 2: try to change a child's sexual orientation or gender identity. 380 00:24:28,480 --> 00:24:31,800 Speaker 2: The ruling itself came as no surprise after the oral 381 00:24:31,960 --> 00:24:36,880 Speaker 2: arguments were the conservative justices like Chief Justice John Roberts 382 00:24:36,880 --> 00:24:41,159 Speaker 2: and Justice Samuel Alito, made their positions fairly clear. 383 00:24:41,600 --> 00:24:46,480 Speaker 5: In other words, just because they're engaged in conduct doesn't 384 00:24:46,520 --> 00:24:48,040 Speaker 5: mean that their words aren't protected. 385 00:24:48,920 --> 00:24:51,000 Speaker 8: Looks like blatant viewpoint discrimination. 386 00:24:51,480 --> 00:24:56,119 Speaker 2: Liberal Justice Katanji Brown Jackson was the only dissenter. The 387 00:24:56,240 --> 00:24:59,720 Speaker 2: ruling cast doubt on similar laws in more than half 388 00:24:59,760 --> 00:25:04,680 Speaker 2: the states. My guest is Columbia Law School professor Suzanne Goldberg. 389 00:25:05,080 --> 00:25:08,520 Speaker 2: She's the director of the Sexuality and Gender Law Clinic. 390 00:25:08,880 --> 00:25:13,320 Speaker 2: Conversion therapy is rejected by every major medical and mental 391 00:25:13,359 --> 00:25:16,719 Speaker 2: health organization, Yet the Supreme Court, in this eight to 392 00:25:16,760 --> 00:25:21,439 Speaker 2: one decision, finds that Colorado's ban is a violation of 393 00:25:21,480 --> 00:25:24,760 Speaker 2: free speech rights. Can you explain their reasoning? 394 00:25:25,160 --> 00:25:27,880 Speaker 7: First, I want to affirm what you just said that 395 00:25:28,080 --> 00:25:31,840 Speaker 7: every major medical association says this kind of therapy to 396 00:25:31,960 --> 00:25:36,160 Speaker 7: change somebody's sexual orientation or gender identity is harmful, especially 397 00:25:36,160 --> 00:25:39,879 Speaker 7: to young people. And so the court says, even though 398 00:25:40,280 --> 00:25:45,120 Speaker 7: that may be the case, Colorado cannot regulate what talk 399 00:25:45,280 --> 00:25:50,159 Speaker 7: therapists say to their young patients because those therapists have 400 00:25:50,200 --> 00:25:53,400 Speaker 7: a First Amendment free speech right. In other words, the 401 00:25:53,440 --> 00:25:58,440 Speaker 7: government of Colorado cannot, through regulating provision of medical care 402 00:25:58,520 --> 00:26:01,520 Speaker 7: or healthcare, say you can't say these things, even though 403 00:26:01,520 --> 00:26:03,560 Speaker 7: we know and there's evidence that they're harmful. 404 00:26:03,800 --> 00:26:07,560 Speaker 2: The Age of Colorado defended the law, saying states have 405 00:26:07,640 --> 00:26:12,680 Speaker 2: long regulated medical practices, including treatments carried out through speech, 406 00:26:12,840 --> 00:26:16,480 Speaker 2: to protect patients from substandard care. So why doesn't this 407 00:26:16,600 --> 00:26:20,560 Speaker 2: law fit under the state regulating mental health professionals. 408 00:26:21,000 --> 00:26:25,400 Speaker 7: So the court says, this is speech. It's pure speech, 409 00:26:26,160 --> 00:26:31,600 Speaker 7: and under our constitutional doctrine, whenever the government regulates speech, 410 00:26:31,880 --> 00:26:34,800 Speaker 7: the Court will impose its very highest level of review, 411 00:26:34,840 --> 00:26:37,960 Speaker 7: its most skeptical scrutiny. And it says in this case, 412 00:26:38,000 --> 00:26:40,240 Speaker 7: the lower court made a mistake by applying a lower 413 00:26:40,359 --> 00:26:43,440 Speaker 7: level of review and treating this as regular medical regulation. 414 00:26:43,760 --> 00:26:47,760 Speaker 7: And Katanji Barm Jackson, in her dissent says, yes, this 415 00:26:48,000 --> 00:26:52,240 Speaker 7: is actually medical regulation. This is totally within the balance 416 00:26:52,240 --> 00:26:55,280 Speaker 7: of what a state can do to protect patients against 417 00:26:55,320 --> 00:26:58,520 Speaker 7: substandard care. It says, though the two sides are really 418 00:26:58,560 --> 00:27:01,359 Speaker 7: talking past each other, and one of the concerns is 419 00:27:01,720 --> 00:27:05,280 Speaker 7: how will this interfere with the state's ability to protect 420 00:27:05,560 --> 00:27:08,720 Speaker 7: patients from what healthcare providers have to say to them. 421 00:27:09,119 --> 00:27:14,000 Speaker 2: Yeah, the American Psychological Association has said it's deeply concerned 422 00:27:14,040 --> 00:27:16,880 Speaker 2: about the ruling. Now, I don't think it came as 423 00:27:17,040 --> 00:27:21,040 Speaker 2: any surprise that the six conservatives voted against the law, 424 00:27:21,440 --> 00:27:24,360 Speaker 2: But it was surprising to me that the two liberal 425 00:27:24,640 --> 00:27:29,959 Speaker 2: justices Sonya so To Mayor and Elaina Kagan voted against 426 00:27:30,000 --> 00:27:32,399 Speaker 2: the law. How did they explain that? 427 00:27:32,520 --> 00:27:36,960 Speaker 7: In the concurrence they take the same position that this 428 00:27:37,160 --> 00:27:41,200 Speaker 7: is regulation of speech, and its regulation of speech based 429 00:27:41,200 --> 00:27:45,359 Speaker 7: on the viewpoint of the speaker. Meaning a speaker can 430 00:27:45,480 --> 00:27:51,320 Speaker 7: say I affirm that your LGBT, whatever the young person is. 431 00:27:51,680 --> 00:27:55,439 Speaker 7: But the speaker the therapist cannot say, I don't affirm that, 432 00:27:55,640 --> 00:27:59,679 Speaker 7: and you should change. And so that is Justice Kagan writes, 433 00:28:00,119 --> 00:28:04,960 Speaker 7: viewpoint discrimination. And the Court has long subjected viewpoint discrimination 434 00:28:05,119 --> 00:28:09,760 Speaker 7: to its most skeptical kind of scrutiny. That said, there 435 00:28:09,840 --> 00:28:14,119 Speaker 7: are many things that the state presumably can regulate and 436 00:28:14,160 --> 00:28:17,720 Speaker 7: prohibit a medical provider from saying to a patient. One 437 00:28:17,760 --> 00:28:20,280 Speaker 7: of those examples is, you know, a state should be 438 00:28:20,320 --> 00:28:24,240 Speaker 7: able to prohibit a provider from encouraging a suicidal patient 439 00:28:24,280 --> 00:28:25,440 Speaker 7: to take their own life. 440 00:28:25,600 --> 00:28:26,760 Speaker 4: That is also speech. 441 00:28:27,119 --> 00:28:31,160 Speaker 7: The Court doesn't wrestle with that, neither the majority nor 442 00:28:31,200 --> 00:28:33,320 Speaker 7: the concurring opinion of Justice Kagan. 443 00:28:33,800 --> 00:28:36,600 Speaker 2: Justice Jackson felt so strongly that she read a summary 444 00:28:36,640 --> 00:28:40,320 Speaker 2: of her opinion from the bench to emphasize her objection here, 445 00:28:40,360 --> 00:28:43,800 Speaker 2: but it's often the three liberal justices who are in 446 00:28:43,880 --> 00:28:47,959 Speaker 2: the dissent in cases like this involving transgender rights. 447 00:28:48,520 --> 00:28:51,400 Speaker 7: This is a difficult case in the sense. 448 00:28:51,560 --> 00:28:54,600 Speaker 4: That it is government regulation of speech. 449 00:28:54,680 --> 00:28:59,080 Speaker 7: All nine of them agree on that. Justice Jackson says, yes, 450 00:28:59,120 --> 00:29:04,440 Speaker 7: it's regulation of speech, but incidental to regulation of healthcare provision. 451 00:29:04,920 --> 00:29:08,880 Speaker 7: Justice is Kagan and so do mayor stay with the majority, 452 00:29:09,160 --> 00:29:11,760 Speaker 7: making this an eight to one ruling. Again, I think 453 00:29:11,800 --> 00:29:13,760 Speaker 7: they try to pull back a little bit from some 454 00:29:13,800 --> 00:29:18,000 Speaker 7: of the majorities full on, we can never regulate speech, 455 00:29:18,560 --> 00:29:21,480 Speaker 7: and they suggest that this is quite a narrow ruling, 456 00:29:21,960 --> 00:29:23,640 Speaker 7: but I think we'll have to see. I mean, I 457 00:29:23,640 --> 00:29:26,560 Speaker 7: do think there are always concerns when allowing government to 458 00:29:26,600 --> 00:29:29,640 Speaker 7: regulate speech that the government will regulate too much and 459 00:29:29,720 --> 00:29:34,400 Speaker 7: suppress speech. And that is clearly something that Justice Kagan 460 00:29:34,480 --> 00:29:36,920 Speaker 7: is attuned to as well as the majority, But so 461 00:29:37,120 --> 00:29:39,320 Speaker 7: is Justice Jackson. They just see it differently. 462 00:29:39,720 --> 00:29:43,760 Speaker 2: Did the majority deal with the fact that conversion therapy 463 00:29:44,120 --> 00:29:49,760 Speaker 2: is opposed by every major medical organization and studies have 464 00:29:49,960 --> 00:29:54,480 Speaker 2: linked it to depression, post dramatic stress, and higher rates 465 00:29:54,480 --> 00:29:55,280 Speaker 2: of suicide. 466 00:29:55,880 --> 00:30:00,200 Speaker 7: So the majority says that's what these medical associations think now. 467 00:30:00,440 --> 00:30:04,280 Speaker 7: But the government is not allowed to prescribe an orthodoxy 468 00:30:04,360 --> 00:30:07,200 Speaker 7: of views. And it's standard again in First Amendment, to 469 00:30:07,240 --> 00:30:10,040 Speaker 7: say that the reason we are so protective of speech 470 00:30:10,200 --> 00:30:13,400 Speaker 7: is to allow for the contestation of ideas, to allow 471 00:30:13,440 --> 00:30:16,239 Speaker 7: that maybe at one point our views are mistaken and 472 00:30:16,280 --> 00:30:19,160 Speaker 7: we want to change them. And they make the point that, well, 473 00:30:19,200 --> 00:30:22,040 Speaker 7: you know, some years ago states might have said you 474 00:30:22,160 --> 00:30:26,600 Speaker 7: cannot support a young person who says there lesbian or gay, 475 00:30:26,680 --> 00:30:29,880 Speaker 7: or bisexual or transgender. You have to tell them to change. 476 00:30:30,040 --> 00:30:32,400 Speaker 7: And so the majority says, you know, that could happen. 477 00:30:32,440 --> 00:30:36,800 Speaker 7: We can't allow any of this. That said, there remains 478 00:30:36,840 --> 00:30:43,240 Speaker 7: this question whether governments can protect young patients who are 479 00:30:43,360 --> 00:30:48,800 Speaker 7: facing a demonstrable risk empirically validated if this kind of 480 00:30:48,920 --> 00:30:52,320 Speaker 7: therapy is used on them. And so it seems to 481 00:30:52,360 --> 00:30:55,600 Speaker 7: me the majority does not actually wrestle fully. 482 00:30:55,480 --> 00:30:56,280 Speaker 4: With that question. 483 00:30:56,840 --> 00:31:01,280 Speaker 2: And does this decision put similar bands in other states 484 00:31:01,280 --> 00:31:02,080 Speaker 2: in jeopardy? 485 00:31:02,280 --> 00:31:04,520 Speaker 7: Of course, more than half the states in this country 486 00:31:05,000 --> 00:31:06,400 Speaker 7: have this kind. 487 00:31:06,200 --> 00:31:07,760 Speaker 4: Of law or similar laws. 488 00:31:07,800 --> 00:31:09,960 Speaker 7: Some of them are worded differently, so they may be 489 00:31:10,080 --> 00:31:14,120 Speaker 7: evaluated somewhat differently. And it's important to also know that 490 00:31:14,360 --> 00:31:17,640 Speaker 7: virtually all of these laws were passed with bipartisan support. 491 00:31:17,880 --> 00:31:23,200 Speaker 7: The evidence isn't in question here from any major or 492 00:31:23,720 --> 00:31:28,520 Speaker 7: nonfringe analyst of the data. What's also important to know 493 00:31:29,000 --> 00:31:29,760 Speaker 7: is that. 494 00:31:29,840 --> 00:31:32,120 Speaker 4: This ruling, strong as. 495 00:31:31,960 --> 00:31:34,520 Speaker 7: It is in favor of the therapist who says she 496 00:31:34,600 --> 00:31:37,280 Speaker 7: might want to provide this kind of therapy, does not 497 00:31:37,560 --> 00:31:41,640 Speaker 7: say conversion therapy is good. It does not say conversion 498 00:31:41,720 --> 00:31:46,000 Speaker 7: therapy is helpful to patients. It doesn't disagree with the 499 00:31:46,040 --> 00:31:50,280 Speaker 7: Medical Association saying conversion therapy is harmful, and so young 500 00:31:50,360 --> 00:31:55,280 Speaker 7: people who suffer as a result of conversion therapy can 501 00:31:55,360 --> 00:32:00,160 Speaker 7: still file medical malpractice lawsuits and consumer fraud lawsuits and 502 00:32:00,200 --> 00:32:02,920 Speaker 7: obtain a remedy. What states have been trying to do 503 00:32:03,040 --> 00:32:06,080 Speaker 7: with these laws is prevent the harm in the first place, 504 00:32:06,480 --> 00:32:10,360 Speaker 7: and the Supreme Court has just taken away state's capacity 505 00:32:10,440 --> 00:32:12,000 Speaker 7: to do that in many respects. 506 00:32:12,400 --> 00:32:15,760 Speaker 2: In this case, Colorado hasn't sought to enforce this law, 507 00:32:16,040 --> 00:32:18,840 Speaker 2: and it sort of reminds me of the Supreme Court 508 00:32:18,880 --> 00:32:22,720 Speaker 2: case where the web designer, also in Colorado said she 509 00:32:22,760 --> 00:32:26,800 Speaker 2: didn't want to design for same sex couples, and yet 510 00:32:27,080 --> 00:32:29,520 Speaker 2: no same sex couple had ever asked her to do 511 00:32:29,560 --> 00:32:32,840 Speaker 2: a web design, So why is the Supreme Court taking 512 00:32:32,880 --> 00:32:35,720 Speaker 2: these cases where no one's been injured. 513 00:32:35,920 --> 00:32:39,520 Speaker 7: There are at least two responses to your rise question. 514 00:32:40,120 --> 00:32:44,040 Speaker 7: The first is that when the First Amendment is an issue, 515 00:32:44,040 --> 00:32:47,640 Speaker 7: when people's free speech rights might be chilled, which was 516 00:32:47,680 --> 00:32:51,600 Speaker 7: the argument here, the Court is more willing to take 517 00:32:51,640 --> 00:32:54,200 Speaker 7: a case that is hypothetical. 518 00:32:54,320 --> 00:32:56,440 Speaker 4: As you just said, right, Colorado. 519 00:32:55,960 --> 00:32:59,040 Speaker 7: Hasn't enforced the law, She hasn't been in any trouble 520 00:32:59,080 --> 00:32:59,680 Speaker 7: with the law. 521 00:33:00,080 --> 00:33:01,680 Speaker 4: So this is really, you. 522 00:33:01,640 --> 00:33:04,160 Speaker 7: Know, a step outside of that kind of hypothetical we 523 00:33:04,240 --> 00:33:05,800 Speaker 7: might offer in a law school classroom. 524 00:33:05,840 --> 00:33:07,640 Speaker 4: It's not a real case yet. 525 00:33:07,880 --> 00:33:11,000 Speaker 7: But when somebody makes an argument that their speech is 526 00:33:11,040 --> 00:33:15,000 Speaker 7: being chilled by the government regulation, that kind of argument 527 00:33:15,160 --> 00:33:18,280 Speaker 7: is typically allowed to go forward for good reason. Right, 528 00:33:18,480 --> 00:33:21,320 Speaker 7: you know, government can chill speech, and we don't want 529 00:33:21,320 --> 00:33:24,400 Speaker 7: people to have to wait to face criminal punishment or 530 00:33:24,520 --> 00:33:27,920 Speaker 7: fines before they engage in their speech. There's a second 531 00:33:27,960 --> 00:33:30,920 Speaker 7: point though, too, to your question, like why are people 532 00:33:31,000 --> 00:33:35,600 Speaker 7: bringing cases when they haven't not only not gotten in trouble, 533 00:33:35,640 --> 00:33:37,720 Speaker 7: they haven't even in the case of the web design 534 00:33:37,800 --> 00:33:41,000 Speaker 7: or offered the services, and neither did ms Childs. And 535 00:33:41,080 --> 00:33:43,680 Speaker 7: there I think we can see that this is part 536 00:33:43,720 --> 00:33:47,120 Speaker 7: of a broader agenda on the part of legal organizations 537 00:33:47,160 --> 00:33:50,320 Speaker 7: to find plaintiffs who are willing to make these claims 538 00:33:50,760 --> 00:33:54,520 Speaker 7: with a goal of pushing the law in a direction 539 00:33:54,640 --> 00:34:00,000 Speaker 7: that really restricts the kind of legal protections for LGBT people. 540 00:34:00,440 --> 00:34:05,200 Speaker 2: Yeah, the therapist was represented by the Alliance Defending Freedom, 541 00:34:05,320 --> 00:34:08,279 Speaker 2: a Christian legal group that has been behind some of 542 00:34:08,320 --> 00:34:14,280 Speaker 2: these high profile cases, including overturning the constitutional right to abortion. Suzanne, 543 00:34:14,320 --> 00:34:18,280 Speaker 2: It's been one loss after the other for transgender rights 544 00:34:18,280 --> 00:34:22,760 Speaker 2: at the Supreme Court. It upheld Tennessee's ban on gender 545 00:34:22,760 --> 00:34:27,720 Speaker 2: affirming care for transgender miners. It allowed Trump to fire 546 00:34:28,000 --> 00:34:32,440 Speaker 2: transgender members of the military and to require new passports 547 00:34:32,480 --> 00:34:37,279 Speaker 2: to reflect the sex on the holder's birth certificate. So basically, 548 00:34:37,640 --> 00:34:39,440 Speaker 2: no wins, only losses. 549 00:34:39,760 --> 00:34:43,040 Speaker 7: I think it certainly does have a relentless feel. And 550 00:34:43,080 --> 00:34:46,719 Speaker 7: when you couple this most recent series of rulings with 551 00:34:46,920 --> 00:34:49,960 Speaker 7: the more than a thousand bills that have been introduced 552 00:34:49,960 --> 00:34:53,800 Speaker 7: in state legislatures around the country to restrict transgender people 553 00:34:53,880 --> 00:34:57,400 Speaker 7: in the daily activities of living and identity documents like 554 00:34:57,480 --> 00:35:01,160 Speaker 7: a driver's license that looks like you, or access to 555 00:35:01,280 --> 00:35:06,640 Speaker 7: a bathroom, or ability to get a passport that reflects identity. 556 00:35:06,880 --> 00:35:11,960 Speaker 7: There are so many restrictions. Many of these cutbacks on 557 00:35:12,600 --> 00:35:15,799 Speaker 7: protection for transgender people are coming in the guise of 558 00:35:16,080 --> 00:35:19,120 Speaker 7: free speech or protecting the religious freedom. But it's a 559 00:35:19,239 --> 00:35:20,480 Speaker 7: very challenging time. 560 00:35:20,320 --> 00:35:22,960 Speaker 2: Home, and a decision yet to come in the case 561 00:35:23,000 --> 00:35:26,799 Speaker 2: of transgender women and girls being able to play on 562 00:35:26,960 --> 00:35:31,520 Speaker 2: female athletic teams. Thanks for joining me, Suzanne. That's Professor 563 00:35:31,560 --> 00:35:35,479 Speaker 2: Suzanne Goldberg of Columbia Law School. In other legal news 564 00:35:35,520 --> 00:35:40,000 Speaker 2: this week, Pam Bondy is out as Attorney General, ending 565 00:35:40,040 --> 00:35:43,960 Speaker 2: its tumultuous tenure as the nation's top law enforcement official 566 00:35:44,320 --> 00:35:48,400 Speaker 2: after stumbling in her efforts to carry out President Trump's agenda. 567 00:35:48,680 --> 00:35:51,920 Speaker 2: Trump announced her departure in a social media post and 568 00:35:52,040 --> 00:35:55,760 Speaker 2: named Deputy Attorney General Todd Blanche, one of his former 569 00:35:55,800 --> 00:36:00,279 Speaker 2: defense lawyers, as the acting Attorney General. Bondi oversaw the 570 00:36:00,440 --> 00:36:05,239 Speaker 2: unprecedented transformation of the Justice Department into an arm of 571 00:36:05,280 --> 00:36:09,600 Speaker 2: the White House and the large scale firings of career employees. 572 00:36:10,000 --> 00:36:14,920 Speaker 2: She moved aggressively to investigate the president's perceived enemies, but 573 00:36:15,080 --> 00:36:19,720 Speaker 2: Trump grew impatient over the lack of progress in prosecuting 574 00:36:19,880 --> 00:36:23,640 Speaker 2: his adversaries. And was displeased with her handling of the 575 00:36:23,680 --> 00:36:28,600 Speaker 2: files related to convicted sex offender Jeffrey Epstein. Bondi is 576 00:36:28,640 --> 00:36:32,440 Speaker 2: the second cabinet member to lose her job, following former 577 00:36:32,600 --> 00:36:36,680 Speaker 2: DHS Secretary Christy Nome. And that's it for this edition 578 00:36:36,719 --> 00:36:39,359 Speaker 2: of The Bloomberg Law Show. Remember you can always get 579 00:36:39,360 --> 00:36:42,520 Speaker 2: the latest legal news on our Bloomberg Law Podcast. You 580 00:36:42,560 --> 00:36:46,680 Speaker 2: can find them on Apple Podcasts, Spotify, and at www 581 00:36:46,800 --> 00:36:51,080 Speaker 2: dot bloomberg dot com slash podcast Slash Law, And remember 582 00:36:51,080 --> 00:36:54,040 Speaker 2: to tune into The Bloomberg Law Show every weeknight at 583 00:36:54,080 --> 00:36:57,560 Speaker 2: ten pm Wall Street Time. I'm June Grosso and you're 584 00:36:57,640 --> 00:36:58,840 Speaker 2: listening to Bloomberg