Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight an analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. As his administration
Speaker 1: tightens the rules for immigrants trying to enter the country,
Speaker 1: President Trump continues to focus on immigration in his re
Speaker 1: election rallies. If Democrats were ever to seize power, they
Speaker 1: would open the floodgates to unvetted, uncontrolled migration at levels
Speaker 1: you have never seen before. You think youavin bed now,
Speaker 1: You would never have seen anything like what they want
Speaker 1: to do. The latest policy change is a presidential proclamation
Speaker 1: that bars the entry of immigrants who don't have health insurance,
Speaker 1: a rule of federal judge has just put on hold.
Speaker 1: Joining me is Leon Fresco, a partner at hollanden Night.
Speaker 1: He was formerly the head of the Office of Immigration
Speaker 1: Litigation at the Justice Department. Tell us about the latest
Speaker 1: rule change, well, the latest rule change was one that
Speaker 1: involved the president issuing a proclamation that said that if
Speaker 1: anyone was living outside the United States and wanted to
Speaker 1: get a green card to come into the United States,
Speaker 1: then that person would need to have health insurance in
Speaker 1: order to be allowed to get their green card in
Speaker 1: order to come live permanently inside the United States. Would
Speaker 1: that be difficult for the Homeland Security Department to police
Speaker 1: that kind of a rule. Absolutely, that rule is incredibly
Speaker 1: difficult to police for several reasons. One, there was an
Speaker 1: exception to the rule that said, if you can't provide
Speaker 1: proof of health insurance, that you could still show that
Speaker 1: you had sufficient assets to buy health insurance. And it
Speaker 1: was unclear what those sufficient assets were. There was no
Speaker 1: amount of money that was given in terms of either
Speaker 1: income or cash in the bank or anything else that
Speaker 1: determined what would those sufficient assets be. So health care
Speaker 1: can be any kind of cost. That can be somewhere
Speaker 1: between two thousand a month three thousand a month. That
Speaker 1: just depends, and that was all going to be up
Speaker 1: to an individual counselor officer to determine in a ninety
Speaker 1: second interview. So that's number one, But number two more
Speaker 1: challenging is the fact that since most healthcare in the
Speaker 1: United States is purchased from one's employer, having someone who's
Speaker 1: a foreign national trying to get health insurance in the
Speaker 1: United States turns out to be a very, very difficult
Speaker 1: task because there really is no insurance other than the
Speaker 1: normal visitor traveler insurance, and that's not intended for people
Speaker 1: who are going to live here permanently. So this targets
Speaker 1: the kind of integration that President Trump opposes, where immigrants
Speaker 1: joined family members who are here. Correct, because what happens
Speaker 1: is there's three ways in which individuals can get Green
Speaker 1: cards if they're sitting from abroad, and the main way
Speaker 1: is the family way. The second way is the employer way,
Speaker 1: and the third way is the diversity lottery. And then
Speaker 1: actually Way one and Way three whether it's a diversity
Speaker 1: lottery or the family green card, which are both green
Speaker 1: cards that are not well liked by this administration. The
Speaker 1: idea was, let's try to develop a choke point, which
Speaker 1: is that we can show that individuals won't have health
Speaker 1: insurance and that way we can shut them down from
Speaker 1: coming into the United States. Irrespective of the fact that
Speaker 1: Congress allocated a certain number of green cards the year
Speaker 1: for these purposes, didn't the first lady's parents come here
Speaker 1: under that so called chain migration. So what is the
Speaker 1: president dislike it? So I think it's just an issue
Speaker 1: of significant pushback from the immigration restrictionist groups. They think
Speaker 1: that the six hundred to six hundred and fifty thousand
Speaker 1: Green cards a year that are given to relatives of
Speaker 1: US citizens is way too high, and the closer they
Speaker 1: can get that numbered to zero, the happier they would be,
Speaker 1: irrespective of who's coming or why they're coming, or whether
Speaker 1: they're contributing or not. And so it's unclear what the
Speaker 1: end goal is, but the medium term goals are to
Speaker 1: serve obstacles, so to speak, in order to try to
Speaker 1: get those numbers down. Leon tell us about the lawsuit
Speaker 1: challenging this rule. So the grounds of the lawsuit are
Speaker 1: that Congress essentially issued the ways in which one could
Speaker 1: be disqualified from the United States under a statute called
Speaker 1: a U. S c. Even eighty two, which are called
Speaker 1: grounds of an immissibility, and it lays out all the
Speaker 1: grounds of an immissibility and it says, these are the
Speaker 1: reasons why you can't come in. And so the idea
Speaker 1: is that the President has exceeded his authority with regard
Speaker 1: to these grounds of an immissibility by adding this new
Speaker 1: healthcare essentially ground of an immissibility without going through the
Speaker 1: normal regulatory process, which has notice in common, and without
Speaker 1: showing that there's an actual statutory basis for it. Because
Speaker 1: the public Charge Statute, which we've talked about in the past,
Speaker 1: which talks about whether you will be dependent on welfare,
Speaker 1: doesn't have an affirmative requirement that you actually have healthcare,
Speaker 1: and just asks will you be dependent upon public services?
Speaker 1: And once you've crossed that threshold, the idea is that
Speaker 1: the president can invent a new threshold called, well, do
Speaker 1: you have health care too? A federal judge issued a
Speaker 1: temporary restraining order. Was that decision based on the merits
Speaker 1: at all? Well, he's saying that the plaintiffs have shown
Speaker 1: enough to stop it for right now. So what the
Speaker 1: judge has basically said is, look, this thing is too
Speaker 1: difficult right now to put into effect. Nobody knows how
Speaker 1: to get health insurance, and it's not clear that it's legal.
Speaker 1: So we're just gonna stop it for now, and we're
Speaker 1: gonna put some more evidence in the record, and then
Speaker 1: I'll either issue a preliminary injunction or the dependants will win,
Speaker 1: the government will win, and this thing will go into effect.
Speaker 1: But for now, it's not in effect, Meaning if you
Speaker 1: go to a window in India or China or the
Speaker 1: Philippines tomorrow to try to get a green card for
Speaker 1: your interview, you don't have to at the moment show
Speaker 1: that you're going to have health insurance in the United States.
Speaker 1: And where does the public charge rule that the Trump
Speaker 1: administration tried to impose, where does that stand? Well, the
Speaker 1: new public charge rule is in litigation, and it's been
Speaker 1: enjoined by various district courts, and so that's going to
Speaker 1: be working up its way, probably to the Supreme Court,
Speaker 1: which is probably getting quite flustered that it's having to
Speaker 1: take ten immigration cases a year, which it used to
Speaker 1: normally take one or two. But since this is where
Speaker 1: a lot of the government action is happening right now
Speaker 1: in immigration, the Supreme Court is going to have to
Speaker 1: hear the public charge case most likely. But also this
Speaker 1: is sort of a subset of that, because the question
Speaker 1: is whether the public charge law precludes this. Actually the
Speaker 1: presidents using the same travel band authority that was used
Speaker 1: for the Hawaii case which he wanted the Supreme Court,
Speaker 1: he's basically just saying I'm banning people without health insurance.
Speaker 1: It's like he said, I'm banning people from around and
Speaker 1: Syria and Libya. He's saying, I'm just banning people without
Speaker 1: health insurance. And the question is, well, why can't the
Speaker 1: president just add that ban and just had a new
Speaker 1: reason to ban people. Well, why can't he, Leon, If
Speaker 1: he can ban people who come from certain countries, why
Speaker 1: can't he ban people who don't have health insurance. Well,
Speaker 1: I mean, the statutory framework is broad enough that if
Speaker 1: one we're looking at this again purely from a computer standpoint,
Speaker 1: I think the answer would be the president could ban people.
Speaker 1: And I mean I was here a year ago telling
Speaker 1: you that the president was probably gonna win the travel
Speaker 1: ban case, and so he may probably win this case too.
Speaker 1: But what starts to happen is at what point does
Speaker 1: a president start acting so arbitrarily and capriciously that the
Speaker 1: courts do nothing, that they just continue to allow these
Speaker 1: proclamations to issue, to the point where the president is
Speaker 1: circumventing the fact that a Congress wanted an immigration system
Speaker 1: in the United States, and that all of these things
Speaker 1: are basically operating to not have an immigration system in
Speaker 1: the United States. Thanks Leon. That's Leon Fresco, a partner
Speaker 1: at hollanden Knight. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg