WEBVTT - Judge Blocks A New Trump Immigration Rule

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight an analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. As his administration

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<v Speaker 1>tightens the rules for immigrants trying to enter the country,

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<v Speaker 1>President Trump continues to focus on immigration in his re

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<v Speaker 1>election rallies. If Democrats were ever to seize power, they

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<v Speaker 1>would open the floodgates to unvetted, uncontrolled migration at levels

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<v Speaker 1>you have never seen before. You think youavin bed now,

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<v Speaker 1>You would never have seen anything like what they want

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<v Speaker 1>to do. The latest policy change is a presidential proclamation

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<v Speaker 1>that bars the entry of immigrants who don't have health insurance,

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<v Speaker 1>a rule of federal judge has just put on hold.

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<v Speaker 1>Joining me is Leon Fresco, a partner at hollanden Night.

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<v Speaker 1>He was formerly the head of the Office of Immigration

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<v Speaker 1>Litigation at the Justice Department. Tell us about the latest

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<v Speaker 1>rule change, well, the latest rule change was one that

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<v Speaker 1>involved the president issuing a proclamation that said that if

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<v Speaker 1>anyone was living outside the United States and wanted to

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<v Speaker 1>get a green card to come into the United States,

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<v Speaker 1>then that person would need to have health insurance in

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<v Speaker 1>order to be allowed to get their green card in

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<v Speaker 1>order to come live permanently inside the United States. Would

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<v Speaker 1>that be difficult for the Homeland Security Department to police

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<v Speaker 1>that kind of a rule. Absolutely, that rule is incredibly

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<v Speaker 1>difficult to police for several reasons. One, there was an

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<v Speaker 1>exception to the rule that said, if you can't provide

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<v Speaker 1>proof of health insurance, that you could still show that

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<v Speaker 1>you had sufficient assets to buy health insurance. And it

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<v Speaker 1>was unclear what those sufficient assets were. There was no

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<v Speaker 1>amount of money that was given in terms of either

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<v Speaker 1>income or cash in the bank or anything else that

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<v Speaker 1>determined what would those sufficient assets be. So health care

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<v Speaker 1>can be any kind of cost. That can be somewhere

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<v Speaker 1>between two thousand a month three thousand a month. That

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<v Speaker 1>just depends, and that was all going to be up

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<v Speaker 1>to an individual counselor officer to determine in a ninety

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<v Speaker 1>second interview. So that's number one, But number two more

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<v Speaker 1>challenging is the fact that since most healthcare in the

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<v Speaker 1>United States is purchased from one's employer, having someone who's

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<v Speaker 1>a foreign national trying to get health insurance in the

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<v Speaker 1>United States turns out to be a very, very difficult

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<v Speaker 1>task because there really is no insurance other than the

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<v Speaker 1>normal visitor traveler insurance, and that's not intended for people

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<v Speaker 1>who are going to live here permanently. So this targets

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<v Speaker 1>the kind of integration that President Trump opposes, where immigrants

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<v Speaker 1>joined family members who are here. Correct, because what happens

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<v Speaker 1>is there's three ways in which individuals can get Green

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<v Speaker 1>cards if they're sitting from abroad, and the main way

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<v Speaker 1>is the family way. The second way is the employer way,

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<v Speaker 1>and the third way is the diversity lottery. And then

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<v Speaker 1>actually Way one and Way three whether it's a diversity

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<v Speaker 1>lottery or the family green card, which are both green

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<v Speaker 1>cards that are not well liked by this administration. The

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<v Speaker 1>idea was, let's try to develop a choke point, which

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<v Speaker 1>is that we can show that individuals won't have health

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<v Speaker 1>insurance and that way we can shut them down from

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<v Speaker 1>coming into the United States. Irrespective of the fact that

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<v Speaker 1>Congress allocated a certain number of green cards the year

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<v Speaker 1>for these purposes, didn't the first lady's parents come here

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<v Speaker 1>under that so called chain migration. So what is the

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<v Speaker 1>president dislike it? So I think it's just an issue

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<v Speaker 1>of significant pushback from the immigration restrictionist groups. They think

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<v Speaker 1>that the six hundred to six hundred and fifty thousand

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<v Speaker 1>Green cards a year that are given to relatives of

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<v Speaker 1>US citizens is way too high, and the closer they

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<v Speaker 1>can get that numbered to zero, the happier they would be,

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<v Speaker 1>irrespective of who's coming or why they're coming, or whether

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<v Speaker 1>they're contributing or not. And so it's unclear what the

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<v Speaker 1>end goal is, but the medium term goals are to

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<v Speaker 1>serve obstacles, so to speak, in order to try to

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<v Speaker 1>get those numbers down. Leon tell us about the lawsuit

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<v Speaker 1>challenging this rule. So the grounds of the lawsuit are

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<v Speaker 1>that Congress essentially issued the ways in which one could

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<v Speaker 1>be disqualified from the United States under a statute called

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<v Speaker 1>a U. S c. Even eighty two, which are called

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<v Speaker 1>grounds of an immissibility, and it lays out all the

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<v Speaker 1>grounds of an immissibility and it says, these are the

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<v Speaker 1>reasons why you can't come in. And so the idea

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<v Speaker 1>is that the President has exceeded his authority with regard

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<v Speaker 1>to these grounds of an immissibility by adding this new

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<v Speaker 1>healthcare essentially ground of an immissibility without going through the

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<v Speaker 1>normal regulatory process, which has notice in common, and without

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<v Speaker 1>showing that there's an actual statutory basis for it. Because

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<v Speaker 1>the public Charge Statute, which we've talked about in the past,

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<v Speaker 1>which talks about whether you will be dependent on welfare,

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<v Speaker 1>doesn't have an affirmative requirement that you actually have healthcare,

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<v Speaker 1>and just asks will you be dependent upon public services?

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<v Speaker 1>And once you've crossed that threshold, the idea is that

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<v Speaker 1>the president can invent a new threshold called, well, do

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<v Speaker 1>you have health care too? A federal judge issued a

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<v Speaker 1>temporary restraining order. Was that decision based on the merits

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<v Speaker 1>at all? Well, he's saying that the plaintiffs have shown

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<v Speaker 1>enough to stop it for right now. So what the

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<v Speaker 1>judge has basically said is, look, this thing is too

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<v Speaker 1>difficult right now to put into effect. Nobody knows how

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<v Speaker 1>to get health insurance, and it's not clear that it's legal.

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<v Speaker 1>So we're just gonna stop it for now, and we're

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<v Speaker 1>gonna put some more evidence in the record, and then

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<v Speaker 1>I'll either issue a preliminary injunction or the dependants will win,

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<v Speaker 1>the government will win, and this thing will go into effect.

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<v Speaker 1>But for now, it's not in effect, Meaning if you

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<v Speaker 1>go to a window in India or China or the

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<v Speaker 1>Philippines tomorrow to try to get a green card for

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<v Speaker 1>your interview, you don't have to at the moment show

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<v Speaker 1>that you're going to have health insurance in the United States.

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<v Speaker 1>And where does the public charge rule that the Trump

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<v Speaker 1>administration tried to impose, where does that stand? Well, the

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<v Speaker 1>new public charge rule is in litigation, and it's been

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<v Speaker 1>enjoined by various district courts, and so that's going to

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<v Speaker 1>be working up its way, probably to the Supreme Court,

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<v Speaker 1>which is probably getting quite flustered that it's having to

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<v Speaker 1>take ten immigration cases a year, which it used to

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<v Speaker 1>normally take one or two. But since this is where

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<v Speaker 1>a lot of the government action is happening right now

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<v Speaker 1>in immigration, the Supreme Court is going to have to

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<v Speaker 1>hear the public charge case most likely. But also this

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<v Speaker 1>is sort of a subset of that, because the question

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<v Speaker 1>is whether the public charge law precludes this. Actually the

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<v Speaker 1>presidents using the same travel band authority that was used

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<v Speaker 1>for the Hawaii case which he wanted the Supreme Court,

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<v Speaker 1>he's basically just saying I'm banning people without health insurance.

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<v Speaker 1>It's like he said, I'm banning people from around and

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<v Speaker 1>Syria and Libya. He's saying, I'm just banning people without

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<v Speaker 1>health insurance. And the question is, well, why can't the

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<v Speaker 1>president just add that ban and just had a new

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<v Speaker 1>reason to ban people. Well, why can't he, Leon, If

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<v Speaker 1>he can ban people who come from certain countries, why

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<v Speaker 1>can't he ban people who don't have health insurance. Well,

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<v Speaker 1>I mean, the statutory framework is broad enough that if

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<v Speaker 1>one we're looking at this again purely from a computer standpoint,

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<v Speaker 1>I think the answer would be the president could ban people.

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<v Speaker 1>And I mean I was here a year ago telling

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<v Speaker 1>you that the president was probably gonna win the travel

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<v Speaker 1>ban case, and so he may probably win this case too.

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<v Speaker 1>But what starts to happen is at what point does

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<v Speaker 1>a president start acting so arbitrarily and capriciously that the

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<v Speaker 1>courts do nothing, that they just continue to allow these

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<v Speaker 1>proclamations to issue, to the point where the president is

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<v Speaker 1>circumventing the fact that a Congress wanted an immigration system

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<v Speaker 1>in the United States, and that all of these things

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<v Speaker 1>are basically operating to not have an immigration system in

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<v Speaker 1>the United States. Thanks Leon. That's Leon Fresco, a partner

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<v Speaker 1>at hollanden Knight. Thanks for listening to the Bloomberg Law Podcast.

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<v Speaker 1>You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg