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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Can't Stop, Hat Stop, Hat Stop.

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Speaker 1: Hundreds of protesters were outside the Supreme Court today to

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Speaker 1: support a thirty year old federal ban on guns for

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Speaker 1: domestic abusers. Inside, the justices suggested during oral arguments that

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Speaker 1: they would not strike down that ban that's been used

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Speaker 1: to block more than seventy seven thousand gun sales in

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Speaker 1: the past twenty five years. And it didn't even seem

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Speaker 1: like it was a hard issue for the justices. Both

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Speaker 1: liberals and conservatives sounded persuaded by arguments from the Solicitor

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Speaker 1: General that the prohibition is in line with the long

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Speaker 1: standing practice of disarming dangerous people. My guest is Second

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Speaker 1: Amendment expert Adam Winkler, a professor at UCLA Law School.

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Speaker 1: Let's start with the big question. Did it seem like

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Speaker 1: justices across the board were inclined to uphold this federal

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Speaker 1: gun ban for people subject to domestic violence restraining orders?

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Speaker 3: It did. It felt very one sided in the Supreme

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Speaker 3: Court today, and it felt like that almost all the justices,

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Speaker 3: if not all the justices, were inclined to uphold the

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Speaker 3: federal ban in this case.

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Speaker 1: This is the first test of last year's ruling that

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Speaker 1: strengthened Second Amendment protections and established a constitutional right to

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Speaker 1: carry a handgun in public. So in order to understand this,

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Speaker 1: I think we have to explain how the historical analysis

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Speaker 1: approach has caused confusion in lower courts and led to

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Speaker 1: striking down gun control laws. So maybe you could just

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Speaker 1: give us a briefing on the historical analysis.

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Speaker 3: In the Bruin case, Justice Thomas's majority opinion said that

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Speaker 3: for gun laws to be constitutional and permissible today, they

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Speaker 3: must have historical analogs in the seventeen and eighteen hundreds

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Speaker 3: when the Second Amendment was adopted and the Fourteenth Amendment

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Speaker 3: was adopted, operating the Second Amendment to apply to the states.

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Speaker 3: As a result, courts have really struggled over the last

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Speaker 3: year or so trying to find gun laws back in

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Speaker 3: those days that are sufficiently analogous to many common sense,

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Speaker 3: mainstream gun laws that we have today. Truth be told,

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Speaker 3: many of our gun laws are kind of twentieth century inventions.

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Speaker 3: Bans on felms possessing firearms, bans on the mentally ill

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Speaker 3: possessing firearms, and the issue in today's case, ban on

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Speaker 3: domestic abusers possessing firearms. These are laws that don't have

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Speaker 3: any obvious analog in the seventeen and eighteen hundreds, and

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Speaker 3: so this law was struck down by the Fifth Circuit,

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Speaker 3: just like courts around the country have been striking down

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Speaker 3: gun laws for lack of a clear historical precedent.

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Speaker 1: So then how did the justices get around that lack

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Speaker 1: of a clear historical precedent and all end up seemingly

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Speaker 1: in favor of this bank.

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Speaker 3: Well, first of all, I think it's important to note

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Speaker 3: what elizabethgar a Solicitor General, began her oral argument with

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Speaker 3: by noting the statistics that show that domestic abusers with

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Speaker 3: firearms are an incredibly deadly mix, and that every state

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Speaker 3: in the Union, well not every state, I think it's

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Speaker 3: forty eight states in the federal government have prohibited domestic

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Speaker 3: abusers from possessing firearms, showing that what she intended to

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Speaker 3: do was not just rely on the history and tradition,

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Speaker 3: but on the common sense idea that some people are

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Speaker 3: too dangerous to have firearms. What the court seemed to

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Speaker 3: be inclined to do is allowed the government to frame

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Speaker 3: their gun laws at a higher level of generality you

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Speaker 3: don't have to show that there's a history and tradition

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Speaker 3: of domestic abusers being prohibited from possessing firearms, And of

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Speaker 3: course there isn't a long history and tradition of that,

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Speaker 3: but maybe you could show that there's a history and

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Speaker 3: tradition of prohibiting dangerous people from possessing firearms, and domestic

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Speaker 3: abusers are just a modern day understanding of people who

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Speaker 3: are just too dangerous to have come.

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Speaker 1: So Justice Thomas wrote the bruined decision. Was he in

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Speaker 1: line with what you just said?

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Speaker 3: It seemed Justice Thomas did ask several questions from the bench.

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Speaker 3: It's kind of surprising to go to the Supreme Court

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Speaker 3: now and to see how active Justice Thomas is as

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Speaker 3: a questioner. Before COVID, he didn't seem to ask many questions,

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Speaker 3: but it really has changed. He was an active questioner

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Speaker 3: and he didn't really show his cards very much. He

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Speaker 3: did press the Solicitor General to defend the standard that

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Speaker 3: they were offering, but by and large it was hard

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Speaker 3: to get a read on exactly Justice Thomas's views, but

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Speaker 3: the views of most of the other justices came through

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Speaker 3: pretty loud and clear and tell us a.

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Speaker 1: Little bit more about their views.

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Speaker 3: Well, the Chief Justice kept asking, well, you know, isn't

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Speaker 3: it obvious that this is a very dangerous person, this Rahimi.

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Speaker 3: He's had several incidents where he's fired firearms had been

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Speaker 3: irresponsible with them. Obviously, Justices Soda, Mayor and Kagan and

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Speaker 3: Jackson seemed more on the side of the Solicitor General

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Speaker 3: in the United States, although I will note that Katanji

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Speaker 3: Brown Jackson did ask some very very difficult questions of

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Speaker 3: the Solicitor General today and pushed her to really define

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Speaker 3: the boundaries of the argument that she was making. One

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Speaker 3: could interpret that as skepticism, or more likely she wanted

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Speaker 3: the Solicitener General to give her the really good argument

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Speaker 3: that she could use, Justice Jackson could use when she

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Speaker 3: goes into conference with the other justices in the next

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Speaker 3: couple days.

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Speaker 1: Yeah, so Justice Jackson said, what's the point of going

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Speaker 1: to the founding Eerr did she and the other liberal

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Speaker 1: justice It seemed like they wanted to use the case

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Speaker 1: to revisit that history based test.

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Speaker 3: It did appear so, although maybe issues not that optimistic

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Speaker 3: that she could do it, but it did seem like

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Speaker 3: she was pressing that it's very hard to defend this

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Speaker 3: domestic violence abuser band when people are subjet to a

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Speaker 3: restraining order in light of the history and tradition of

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Speaker 3: which that the Bruin Court offered. Although Bruin said that

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Speaker 3: you should look for analogous laws, I think that at

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Speaker 3: the end of the day, the government is hard pressed

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Speaker 3: to draw a very close analogy. Instead, the analogies were

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Speaker 3: very general and didn't exactly apply.

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Speaker 1: On point, did a majority of the Conservative justices seem

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Speaker 1: to want to limit any decision to the facts here?

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Speaker 1: Justice Neil Gorsuch said at one point, do we need

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Speaker 1: to get into any of that?

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Speaker 3: It did seem like several of the justices, including Justices Gorsch, Thomas,

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Speaker 3: and Alito, we're looking for ways to narrow the consequence

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Speaker 3: of ruling against Rahemi in this case and in favor

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Speaker 3: of upholding the law, talking about whether there might be

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Speaker 3: different as applied challenges that someone could bring, or whether

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Speaker 3: there might be some common law defenses that one could

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Speaker 3: bring to a charge that one was possessing a firearms

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Speaker 3: illegally in violation of the domestic violence restraining order, And

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Speaker 3: several of the justices, at least Justice Alito expressed some

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Speaker 3: discomfort with the idea that these domestic violence restraining orders

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Speaker 3: could be very long lasting and yet don't have very

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Speaker 3: serious procedural requirements that correspond with broad notions of due process.

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Speaker 1: Perhaps the Solicitor General said the court should use the case,

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Speaker 1: the present case, to give more guidance to the lower

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Speaker 1: courts and to correct lower courts quote profound misreading of

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Speaker 1: the bruined decision. Do you think we'll get any major

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Speaker 1: statements out of this ruling.

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Speaker 3: I think that's going to be one of the big questions.

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Speaker 3: Is this a really narrow ruling that just cobbles together

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Speaker 3: a majority, or is it an opinion that will provide

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Speaker 3: more guidance to the lower courts. Justice Kagan specifically asked

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Speaker 3: about that and about the necessity, and the Solicitor General

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Speaker 3: had a very clear and precise answer that there were

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Speaker 3: three errors being committed by the lower courts. They were

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Speaker 3: only looking to regulation and not looking to other historical sources.

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Speaker 3: They were looking at regulation, but we're really looking for

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Speaker 3: twins rather than for historical analogs. And also that the

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Speaker 3: absence of regulation should not always be read against the government,

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Speaker 3: especially when a problem like domestic violence was not really

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Speaker 3: thought of as a problem back then, So.

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Speaker 1: I admit that I find this historical analysis test with

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Speaker 1: Second Amendment cases just bordering on ridiculous. Were there any

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Speaker 1: clues as to whether the Conservatives remained behind the historical

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Speaker 1: analysis that Thomas put in place.

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Speaker 3: Well, I think that the Solicitor General made a very

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Speaker 3: strategic choice not to challenge the history and tradition test

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Speaker 3: of Ruin, but instead seek to, if anything, recapture its fluidity,

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Speaker 3: its ability to be useful to uphold laws, not just

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Speaker 3: to strike down laws. And so she was not asking

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Speaker 3: the court to abandon the history and tradition test. She

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Speaker 3: was saying that the lower courts have been misapplying that test,

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Speaker 3: and that to capture the true essence of that test

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Speaker 3: means that you should approach the issue the way she did,

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Speaker 3: at a slightly higher level of generality, focusing on dangerousness

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Speaker 3: rather than looking for historical precedents of domestic abusers being

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Speaker 3: prohibited access to firearms.

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Speaker 1: Do you think then that this reasoning would apply to

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Speaker 1: gun control measures that deny firearms to other potentially dangerous people,

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Speaker 1: for example, drug addicts or felons.

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Speaker 3: Well, those questions, of course, will have to be answered

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Speaker 3: by the Court in the coming years, but it certainly

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Speaker 3: was on top of mind for some of the justices.

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Speaker 3: Justice Kagan asked, specifically of the public defender who was

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Speaker 3: challenging the law, well, you say that bans are not

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Speaker 3: constitutionally permissible of the sort, But what about mentally ill

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Speaker 3: people who have been prohibited? Is that okay? And the

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Speaker 3: attorney kind of hedged, prompting Justice Kagan to say that

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Speaker 3: you're running away from your own argument because of its

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Speaker 3: unt doable consequences. And indeed, I think it was very

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Speaker 3: much on top of mind for the justices that if

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Speaker 3: they struck down this law, it would be hard to

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Speaker 3: figure out how they would uphold bans on felons possessing firearms,

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Speaker 3: or bands on drug abusers possessing firearms, and even something

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Speaker 3: like background checks, because again, we didn't have such laws

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Speaker 3: or really anything like them in the seventeen and eighteen hundreds.

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Speaker 1: Yeah, Justice Kavanaugh expressed concerns about that. Did any of

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Speaker 1: the other justices talk about background checks?

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Speaker 3: No, that was only if I recall correctly. Justice Kavanaugh,

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Speaker 3: who asked about historical ban on sale and the attorney

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Speaker 3: challenging the domestic violence restraining order ban in this case, said, well,

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Speaker 3: there is a stronger historical tradition to regulate commercial sales.

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Speaker 3: But at the same time, he said, well, we're dealing

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Speaker 3: with a ban on possession of firearms in the home,

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Speaker 3: And he said, there really isn't any history and tradition

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Speaker 3: of bans on people having firearms in their own home.

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Speaker 1: So if you had to guess, would you guess that

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Speaker 1: it's going to be a limited opinion or a broader opinion.

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Speaker 3: If you were to guess, I would say this is

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Speaker 3: likely to be a nine to nothing, maybe eight to

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Speaker 3: one or seven to two opinion. And I think because

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Speaker 3: of that, the larger the majority, the less likely it

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Speaker 3: is to be very far reaching. That it may be

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Speaker 3: one of these cases that gets assigned to Justice Gorsich

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Speaker 3: to just do as little damage as possible to the

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Speaker 3: bruined test. But I do think that this case was

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Speaker 3: no matter how big the majority is, to uphold the

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Speaker 3: federal law here. If indeed the court does uphold the

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Speaker 3: federal law here, it will be very good news for

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Speaker 3: gun safety reform advocates. They've been struggling to defend gun

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Speaker 3: laws in courtss on guns without serial numbers, bans on

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Speaker 3: assault weapons. Even last week, a court struck down the

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Speaker 3: restriction on felons possessing firearms. So if the Court does

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Speaker 3: move to this higher level of generality, it says that

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Speaker 3: government can prohibit people who are dangerous from having firearms,

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Speaker 3: it would provide a basis for defend a lot of

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Speaker 3: core gun laws that we really rely on in modern

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Speaker 3: twenty first century America and adam.

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Speaker 1: Last week, the Supreme Court agreed to decide the fate

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Speaker 1: of the federal criminal ban on bump stocks, the attachments

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Speaker 1: that let a semi automatic rifle fire much like a

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Speaker 1: machine gun. What do you make of that? Do you

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Speaker 1: make anything of it?

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Speaker 2: No?

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Speaker 3: I don't make much of it. I think that is

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Speaker 3: really an administrative.

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Speaker 2: Law case, and it's about whether.

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Speaker 3: The administrative agency went too far in interpreting its powers

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Speaker 3: under the Gun Control Act and other federal statutes that

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Speaker 3: regulate firearms. And so I think that although they both

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Speaker 3: deal with firearms regulation, both these cases they're very different.

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Speaker 3: One's a Second Amendment case that's going to be decided

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Speaker 3: on Second Amendment grounds, and how huge impact on how

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Speaker 3: other Second Amendment cases are handled. Whatever the Court does

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Speaker 3: on the bump stocks will be much more important for

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Speaker 3: administrative law and the scope of administrative agency authority under

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Speaker 3: the Constitution and thus will have a much bigger impact

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Speaker 3: well beyond guns, to all sorts of regulatory areas where

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Speaker 3: administrative agencies weigh in.

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Speaker 1: There are certainly a lot of administrative law cases this term.

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Speaker 1: Thanks so much, Adam, I always appreciate your insights. That's

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Speaker 1: UCLA law professor Adam Winkler. California has been a leader

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Speaker 1: in legislation benefiting undocumented residents, such as allowing them to

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Speaker 1: get driver's licenses. Now, the state's higher education system is

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Speaker 1: looking to be their largest employer by relying on an

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Speaker 1: untested legal theory. University of California regents are fast approaching

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Speaker 1: a self imposed deadline of November thirtieth to issue a

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Speaker 1: plan that makes the school system the first public institution

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Speaker 1: to hire students and staff regardless of their legal immigration status.

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Speaker 1: What you means, immigration law expert Leon Fresco, a partner

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Speaker 1: at Hollanden Knight. Leon explained this plan or this plan

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Speaker 1: that's forming, Well.

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Speaker 2: Here's what happening. The government of the state of California

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Speaker 2: is trying to take an interesting legal argument in order

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Speaker 2: to be able to have their state institutions such as

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Speaker 2: their state universities be able to employ undocumented individuals within

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Speaker 2: their universities, and they're trying to do that on the

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Speaker 2: basis of a novel legal argument that the federal immigration

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Speaker 2: law doesn't apply to them.

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Speaker 1: There's a federal law that makes it illegal for employers

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Speaker 1: to knowingly recruit or hire undocumented workers.

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Speaker 2: So basically here's what happens. So eight USC. Section thirteen

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Speaker 2: twenty four to a is the title of the Immigration Code,

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Speaker 2: where they say that no employer can hire for wages

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Speaker 2: for actual labor foreign nationals unless they actually have been

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Speaker 2: given authorization to work in the United States. But either

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Speaker 2: they have to be a citizen, a lawful permanent resident,

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Speaker 2: or or they have to possess a document from the

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Speaker 2: federal government that permits them to lawfully work in the

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Speaker 2: United States. That if not, the employer can be subject

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Speaker 2: to a host of fines and potentially prison time. But

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Speaker 2: what the state of California is saying for its universities

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Speaker 2: and its other state institutions, potentially, what they're saying is

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Speaker 2: that they are not subject to that law. Because there

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Speaker 2: are a number of Supreme Court cases in other contexts

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Speaker 2: that talk about when the federal government wants to subject

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Speaker 2: state governments to various policies and employment laws and other

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Speaker 2: things that they actually have to say that. And so

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Speaker 2: the fact that the federal government didn't say that specifically

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Speaker 2: here that state governments and local governments are considered employers,

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Speaker 2: the idea would be that perhaps the state governments and

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Speaker 2: local governments don't then have the duty to verify the

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Speaker 2: employment authors status of employees in order to hire them

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Speaker 2: as legal workers in those institutions.

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Speaker 1: Where would the federal government mention the states explicitly?

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Speaker 2: Would They would have to say it in the statue.

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Speaker 2: So the statue just says any employer. And so the

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Speaker 2: question is does any employer specifically include the states or

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Speaker 2: does it not? Because there is the argument that and

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Speaker 2: this would have to be for the courts to decide

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Speaker 2: that in addition to saying any employer, the statue would

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Speaker 2: also actually specifically have to say any employer includes state

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Speaker 2: and local public entities.

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Speaker 1: Do you think that that's a very broad reading?

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Speaker 2: Here's the issue. There are so many cases on the

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Speaker 2: flip side of the issue of what state governments are

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Speaker 2: permitted to do visa the immigration law, the main one

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Speaker 2: being Arizona versus the United states, which says states can't

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Speaker 2: take matters into their own hands to enforce immigration law.

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Speaker 2: And then you have the Fifth Circuit case where Texas

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Speaker 2: had sued the Obama administration about not having sufficient border funding.

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Speaker 2: And there have been a number of cases about states standing,

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Speaker 2: et cetera, where the courts have not been amenable to

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Speaker 2: these issues of states taking matters into their own hands

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Speaker 2: visa the immigration law and saying that laws either apply

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Speaker 2: or don't apply to them. Basically, the federal government has

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Speaker 2: been given by the courts this large authority to say,

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Speaker 2: here's what the immigration law is, here's who it applies to,

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Speaker 2: here's who it doesn't apply to. And so it will

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Speaker 2: be interesting to see if California does this, could it

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Speaker 2: survive a court talent. But an actual other interesting question

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Speaker 2: is would Divide the administration actually engage in a court

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Speaker 2: talente against the state of California or would it just

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Speaker 2: simply let sleeping dogs lie and not do anything and

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Speaker 2: wait for some subsequent administration to do it. So there's

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Speaker 2: a lot to be considered here because it's not necessarily

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Speaker 2: intuitive that the Biden administration would sanction California for doing this.

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Speaker 2: So both things would have to be seen A. Would

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Speaker 2: California do this? B Would the Biden administration either engage

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Speaker 2: in employment sanctions or engage in some other declaratory or

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Speaker 2: injunctive relief court case to try to get this practice

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Speaker 2: end and then see who would prevail if those two

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Speaker 2: things actually end up happening in an election year.

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Speaker 1: It seems unlikely that the Biden administration would go after California.

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Speaker 2: Do you think, I mean, it seems very difficult to

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Speaker 2: think that it would happen immediately. I think it's the

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Speaker 2: kind of thing where they would say, look, we're taking

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Speaker 2: it under advisement, we're investigating the claim, et cetera. And

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Speaker 2: then the issue is would there be sufficient political pressure

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Speaker 2: for them to actually go in and soothe the State

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Speaker 2: of California because there's too to initiate this. You could

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Speaker 2: either sue the State of California for declaratory slash injunctive

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Speaker 2: relief on their just general program that permits this, or

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Speaker 2: you could actually go to the employers the way I

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Speaker 2: does when any employer is hiring undocumented people, and just

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Speaker 2: actually do an enforcement action and say hey, stop employing

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Speaker 2: these people, and then you know the state can do

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Speaker 2: the litigation. So either way. Both of those are options,

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Speaker 2: and it would be very interesting to see how the

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Speaker 2: Biden administration would respond to this, or maybe they would

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Speaker 2: do nothing. And I don't have an immediate inclination like

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Speaker 2: I usually do on what would happen, because I think

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Speaker 2: it's just such a new possibility that I don't think

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Speaker 2: the Biden administration is prepared for or ready to consider

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Speaker 2: this yet.

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Speaker 1: Could California taxpayers sue? I'm looking for a group that

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Speaker 1: would have standing to sue.

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Speaker 2: Well, here's the problem. I don't know that California taxpayers

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Speaker 2: would have to stand to sue under this same now

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Speaker 2: Biden versus Texas decision that dealt with generally this issue

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Speaker 2: of prosecutorial discretion and that being the federal government's role.

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Speaker 2: If you recall earlier this year, the Supreme Court said

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Speaker 2: that the states can't get involved in forcing the federal

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Speaker 2: government to enforce immigration law when they believe that the

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Speaker 2: federal government is not sufficiently enforcing immigration law. And so

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Speaker 2: I don't know if taxpayers can do it. Here's an

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Speaker 2: interesting group that might be able to do it is

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Speaker 2: that if there was some sort of labor union that

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Speaker 2: would be formed that would say we're having to compete

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Speaker 2: against these undocumented workers for jobs. Perhaps they can do

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Speaker 2: it because there have been labor unions that have sued

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Speaker 2: under similar theories and they've been allowed to have standing

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Speaker 2: in the courts to do that. So I do think

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Speaker 2: perhaps if anti immigrants folks can form some sort of

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Speaker 2: labor union or consortium of workers, or can convince one

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Speaker 2: of the labor unions to sue, it's possible that that

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Speaker 2: group would have standing in order to do this.

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Speaker 1: This is a very elemental question, but they'll be getting

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Speaker 1: taxes taken out. Do undocumented people file taxes?

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Speaker 2: Well? This is always one of the fascinating parts of

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Speaker 2: undocumented migration is that to the extent that income gets

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Speaker 2: withheld from undocumented immigrants, which actually happens all the time

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Speaker 2: because it happens under two different regimes. One would be

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Speaker 2: that the undocumented immigrant gets this thing called a TIN,

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Speaker 2: a taxpayer identification number, which is basically out in the open.

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Speaker 2: Everybody's admitting that there's money coming in to the undocumented

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Speaker 2: immigrants and it's going under this tax payer identification number,

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Speaker 2: and it's basically the employer and the employee's saying, look,

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Speaker 2: we may have many other legal problem, but we don't

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Speaker 2: have a tax problem. We're doing everything right tax wise.

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Speaker 2: That's one potential option. The other option that happens already

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Speaker 2: is many times undocumented people will actually take somebody's Social

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Speaker 2: Security number and just use it, and some money's being

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Speaker 2: paid on that number, but it's not that person who's working.

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Speaker 2: And so what I'm saying is the federal government is

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Speaker 2: making money off of that work, and it's not actually

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Speaker 2: paying any benefits. So what actually ends up becoming very

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Speaker 2: interesting is when the Congress proposes these bills to legalize

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Speaker 2: undocumented people for some period of time, this actually becomes

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Speaker 2: a huge revenue raiser. There's all this money being paid

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Speaker 2: in in payroll taxes and there's no money being paid out.

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Speaker 2: But eventually, once people get citizenship, then they end up

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Speaker 2: being able to accrue that money back. But if they

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Speaker 2: don't end up ever becoming citizens and these people end

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Speaker 2: up becoming unlawful for their whole lives and just working

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Speaker 2: at California state institutions, this actually becomes a huge revenue

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Speaker 2: raiser for the federal government.

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Speaker 1: Oddly enough, coming up, I'll continue this conversation with Leon Fresco.

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Speaker 1: What might a budget compromise on immigration look like I'm

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Speaker 1: Jim Grosso and you're listening to Bloomberg. I've been talking

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Speaker 1: to Leon Fresco of Holland and Knight about California's higher

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Speaker 1: education system, looking at a plan that would make the

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Speaker 1: school system the first public institution to hire students and

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Speaker 1: staff regardless of their legal immigration status. It would rely

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Speaker 1: on an untested legal theory. Lee, I have another very

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Speaker 1: basic question. So I was reading about all these undocumented students.

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Speaker 1: They're in graduate programs. You know, some states are paying

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Speaker 1: their tuition. Is there any danger ever? I mean, do

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Speaker 1: they live in fear of ice knocking at their door

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Speaker 1: or is that not a thing anymore?

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Speaker 2: Well, so I would say here the components of this one.

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Speaker 2: There's a number of these young people who are protected

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Speaker 2: under DACAS, So those people have zero fear at the moment,

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Speaker 2: other than that DACAS could end up finally being stricken

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Speaker 2: by the Supreme Court when it gets there. That's working

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Speaker 2: its way up to the court. And there are court ruling

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Speaker 2: saying that doca's illegal, but that are stayed pending Supreme

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Speaker 2: Court review. So there's that. But I mean, there's not

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Speaker 2: an immediate fear, but there's a sort of longer term fear.

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Speaker 2: Then there's the group of people who say, well, at

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Speaker 2: least it's the Biden administration, and the Biden administration has

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Speaker 2: this sensitive location policy where they say they won't go

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Speaker 2: into places like schools or courts or churches to deport people,

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Speaker 2: So at least while those individuals are in school, they

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Speaker 2: have some sense of security that they feel that ICE

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Speaker 2: won't actually engage them in these locations to try to

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Speaker 2: deport them. And then there's the third situation, which is, okay, well,

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Speaker 2: what would happen if either these folks are detained not

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Speaker 2: in their university, or perhaps the Trump administration comes in

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Speaker 2: and changes all these rules, Well, then that's the whole

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Speaker 2: third bucket. But for the moment, people are in these

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Speaker 2: usually these first two buckets because they're either protected by

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Speaker 2: the fact that they're on the school campus or even

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Speaker 2: further protected by the fact that they currently have DAKA.

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Speaker 1: And California has been a leader in legislation benefiting undocumented residents.

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Speaker 2: Yes, and they have these two main laws that they're

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Speaker 2: known for. One is this thing called the Trust Act,

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Speaker 2: which is this huge sanctuary state enforcement regime which basically

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Speaker 2: says that unless the person is a very very violent criminal.

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Speaker 2: No state or local authorities of any kind are permitted

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Speaker 2: to interact with ICE or assist ICE in any way,

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Speaker 2: shape or form with regards to ICE's ability to detain

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Speaker 2: or remove foreign nationals who shouldn't be in the United

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Speaker 2: Slate State. So that's one main thing that they do,

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Speaker 2: and then the second main thing that they do has

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Speaker 2: to be on the benefit side. They provide undocumented people

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Speaker 2: with healthcare under the California Emergency Medicaid program, and they

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Speaker 2: also are very generous with regard to their policies in

440
00:26:20,160 --> 00:26:24,480
Speaker 2: terms of not allowing private detention facility companies to get

441
00:26:24,520 --> 00:26:29,159
Speaker 2: licenses to operate in California, and in terms of giving

442
00:26:29,200 --> 00:26:33,000
Speaker 2: people scholarships and things of this nature. So there's all

443
00:26:33,119 --> 00:26:38,160
Speaker 2: kinds of ways that they impede immigration enforcement but also

444
00:26:38,359 --> 00:26:41,720
Speaker 2: encourage people to live in California even if they do

445
00:26:41,720 --> 00:26:44,159
Speaker 2: not have lawful immigration sidus.

446
00:26:44,560 --> 00:26:47,960
Speaker 1: So what's happening at the border, Because there are so

447
00:26:48,000 --> 00:26:51,280
Speaker 1: many other crises going on, there hasn't been as much

448
00:26:51,400 --> 00:26:55,280
Speaker 1: focus on it, but is immigration up.

449
00:26:55,840 --> 00:26:58,119
Speaker 2: Well, yes, the numbers are very high on the border

450
00:26:58,160 --> 00:27:00,600
Speaker 2: at the moment, and so what's had is we're going

451
00:27:00,640 --> 00:27:04,200
Speaker 2: to have a very interesting confluence for November fifteen, which

452
00:27:04,240 --> 00:27:06,520
Speaker 2: is when the government funding is supposed to run out,

453
00:27:07,040 --> 00:27:09,399
Speaker 2: which is that the current news Speaker of the House

454
00:27:09,520 --> 00:27:13,359
Speaker 2: Johnson is saying that there has to be something on

455
00:27:13,400 --> 00:27:16,000
Speaker 2: the border done in order for funding to continue for

456
00:27:16,040 --> 00:27:20,400
Speaker 2: the federal government and the Biden administration and appropriators who

457
00:27:20,400 --> 00:27:24,800
Speaker 2: I've actually personally spoken to the Democratic side realized that

458
00:27:24,920 --> 00:27:27,720
Speaker 2: probably something is going to have to get here, and

459
00:27:27,800 --> 00:27:31,000
Speaker 2: the kinds of things they're talking about deal with this

460
00:27:31,119 --> 00:27:36,359
Speaker 2: process of this initial screening of people instead of just

461
00:27:36,440 --> 00:27:40,080
Speaker 2: saying that if you articulate any kind of claim, you

462
00:27:40,160 --> 00:27:43,760
Speaker 2: get to stay in the country, raising the states on

463
00:27:43,960 --> 00:27:48,159
Speaker 2: how detailed and how direritorious the claim has to be

464
00:27:48,840 --> 00:27:51,480
Speaker 2: in order to initially be able to stay in the

465
00:27:51,560 --> 00:27:54,760
Speaker 2: United States. There's a lot of conversation about this, and

466
00:27:54,800 --> 00:27:57,640
Speaker 2: there's also a lot of conversation about this theme we've

467
00:27:57,680 --> 00:28:00,560
Speaker 2: been talking about in the past, about keeping people in

468
00:28:00,680 --> 00:28:04,040
Speaker 2: nic attention if they have no place to go, if

469
00:28:04,040 --> 00:28:06,040
Speaker 2: they don't have a sponsor who's going to agree to

470
00:28:06,080 --> 00:28:09,240
Speaker 2: house them. And so I think both of those areas

471
00:28:09,920 --> 00:28:14,080
Speaker 2: are areas that are actually legitimately being talked about by

472
00:28:14,160 --> 00:28:17,119
Speaker 2: Democrats and Republicans. I don't know if there will end

473
00:28:17,200 --> 00:28:19,159
Speaker 2: up being in agreement, But I think there is some

474
00:28:19,359 --> 00:28:22,159
Speaker 2: understanding now for the first time that there's going to

475
00:28:22,200 --> 00:28:25,000
Speaker 2: need to be some movement there in order to send

476
00:28:25,000 --> 00:28:27,800
Speaker 2: the tide of what's happening on the border, because.

477
00:28:27,520 --> 00:28:30,440
Speaker 1: We've discussed this before, and there was a New York

478
00:28:30,480 --> 00:28:35,240
Speaker 1: Times article about how some of the migrants are coming

479
00:28:35,560 --> 00:28:39,719
Speaker 1: with addresses that they've been given from other migrants so

480
00:28:39,760 --> 00:28:41,960
Speaker 1: that they could show them and say, oh, I have

481
00:28:42,040 --> 00:28:45,280
Speaker 1: a place to go, and it's not actually true, it's

482
00:28:45,360 --> 00:28:47,040
Speaker 1: just an address.

483
00:28:47,080 --> 00:28:50,280
Speaker 2: Correct. The idea is that you will actually need a

484
00:28:50,480 --> 00:28:54,800
Speaker 2: US citizen or lawful permanent residence to come forward and say,

485
00:28:54,840 --> 00:28:58,479
Speaker 2: here's my income, here's my residence, here's an affidavit or

486
00:28:58,480 --> 00:29:01,880
Speaker 2: my license or whatever that shows on me, and that

487
00:29:01,920 --> 00:29:04,800
Speaker 2: I'm willing to actually sponsor this human being in my house.

488
00:29:05,080 --> 00:29:07,560
Speaker 2: So this is the kind of thing that's being contemplated

489
00:29:07,640 --> 00:29:10,840
Speaker 2: right now. Those discussions are happening, but we'll have to

490
00:29:10,880 --> 00:29:14,040
Speaker 2: see if they end up happening, because there's a lot

491
00:29:14,040 --> 00:29:16,480
Speaker 2: of pressure also on the left flank of the Democratic

492
00:29:16,520 --> 00:29:21,040
Speaker 2: Party not to do it without some sweetener in exchange,

493
00:29:21,040 --> 00:29:23,479
Speaker 2: and the kinds of sweeteners they're talking about. Our DACA,

494
00:29:23,560 --> 00:29:27,120
Speaker 2: which the Republicans will never do. And so there's other

495
00:29:27,200 --> 00:29:29,800
Speaker 2: sweeteners that are less in terms of at least giving

496
00:29:29,800 --> 00:29:33,440
Speaker 2: people who can make it through a higher threshold at

497
00:29:33,440 --> 00:29:35,640
Speaker 2: the beginning. Well, if they can make it through, then

498
00:29:35,960 --> 00:29:38,520
Speaker 2: allow it to work on day one so that there

499
00:29:38,560 --> 00:29:42,160
Speaker 2: isn't this idle period where they're not working. That's very

500
00:29:42,200 --> 00:29:45,520
Speaker 2: interesting stuff, and so that's potentially a compromise, but we'll

501
00:29:45,520 --> 00:29:46,560
Speaker 2: have to see what happens.

502
00:29:47,000 --> 00:29:50,160
Speaker 1: So today the Ninth circu is going to hear arguments

503
00:29:50,680 --> 00:29:54,960
Speaker 1: challenging the Biden administration's asylum ban. YEP, tell us a

504
00:29:55,000 --> 00:29:57,120
Speaker 1: little bit about this and where you think this is going.

505
00:29:57,200 --> 00:30:00,760
Speaker 2: The Biden administration has tried to have sort of a

506
00:30:00,880 --> 00:30:04,360
Speaker 2: carrots and sixth approach where they tell people move to

507
00:30:04,600 --> 00:30:08,200
Speaker 2: the ports of entry to ask for asylum so that

508
00:30:08,320 --> 00:30:10,960
Speaker 2: you don't have to actually sneak across the border to

509
00:30:11,000 --> 00:30:13,479
Speaker 2: do it, because we don't want you doing that, and

510
00:30:13,520 --> 00:30:15,680
Speaker 2: if you do do that, we won't let you actually

511
00:30:15,720 --> 00:30:20,720
Speaker 2: apply for asylum. And so there's a ban on that.

512
00:30:21,360 --> 00:30:25,440
Speaker 2: And the Trump administration had tried this. There was some

513
00:30:25,560 --> 00:30:29,920
Speaker 2: preliminary discussion during the Trump administration and an initial Ninth

514
00:30:29,920 --> 00:30:32,760
Speaker 2: Circuit decision saying that it was illegal to have this

515
00:30:32,880 --> 00:30:36,360
Speaker 2: kind of asylum ban because the statue says anybody can

516
00:30:36,400 --> 00:30:39,560
Speaker 2: apply for asylum even if you've crossed illegally, and so

517
00:30:39,680 --> 00:30:43,040
Speaker 2: that you can't make crossing the border illegally one of

518
00:30:43,040 --> 00:30:47,520
Speaker 2: the discretionary factors later that you can use to deny asylum,

519
00:30:47,520 --> 00:30:50,120
Speaker 2: which is what the Bite administration has tried to do

520
00:30:50,200 --> 00:30:53,320
Speaker 2: and has what the Trump administration tried to do previously.

521
00:30:53,880 --> 00:30:57,120
Speaker 2: And so this is now going for renewed consideration in

522
00:30:57,160 --> 00:30:59,760
Speaker 2: the Ninth Circus to try to see if this is

523
00:30:59,800 --> 00:31:02,520
Speaker 2: true true, and it will eventually make its way to

524
00:31:02,560 --> 00:31:06,280
Speaker 2: the Supreme Court because the Biden administration definitely wants to

525
00:31:06,320 --> 00:31:09,600
Speaker 2: be able to have this asylum ban in place. Now,

526
00:31:09,640 --> 00:31:13,160
Speaker 2: what's interesting is this asylum ban doesn't actually end up

527
00:31:13,480 --> 00:31:17,160
Speaker 2: banning anybody. It just says you can't get asylum. You

528
00:31:17,200 --> 00:31:20,560
Speaker 2: can get something else called withholding of removal that allows

529
00:31:20,600 --> 00:31:22,920
Speaker 2: you to say. It just doesn't give you a pass

530
00:31:23,000 --> 00:31:26,240
Speaker 2: to a green card or citizenship or being able to

531
00:31:26,280 --> 00:31:29,440
Speaker 2: petition for your relatives. But at least you are able

532
00:31:29,520 --> 00:31:32,680
Speaker 2: to say. And so I don't know how much of

533
00:31:32,680 --> 00:31:35,480
Speaker 2: a deterrence this ends up being, and at least sumerically,

534
00:31:35,640 --> 00:31:38,680
Speaker 2: we've seen it hasn't been much of a deterrence because

535
00:31:38,680 --> 00:31:41,160
Speaker 2: at the end, it's not that really people are coming

536
00:31:41,160 --> 00:31:44,800
Speaker 2: here for quote unquote asylum. They're coming here to quote

537
00:31:44,880 --> 00:31:48,960
Speaker 2: unquote stay, and so that ability to say isn't hampered

538
00:31:49,000 --> 00:31:52,120
Speaker 2: by this asylum man. It's only the ability to get

539
00:31:52,120 --> 00:31:55,600
Speaker 2: a green card or citizenship or be able to apply

540
00:31:55,720 --> 00:31:59,040
Speaker 2: for your relatives that's hampered by this asylum ban.

541
00:32:00,000 --> 00:32:02,720
Speaker 1: I haven't come up with an immigration question yet that

542
00:32:02,840 --> 00:32:05,640
Speaker 1: you haven't been able to answer, Leon, but I'll keep

543
00:32:05,680 --> 00:32:09,600
Speaker 1: striving toward that. Thanks so much. That's Leon Fresco, a

544
00:32:09,680 --> 00:32:12,320
Speaker 1: partner at Hollanda Knight. And that's it for this edition

545
00:32:12,360 --> 00:32:15,040
Speaker 1: of The Bloomberg Law Show. Remember you can always get

546
00:32:15,040 --> 00:32:18,160
Speaker 1: the latest legal news on our Bloomberg Law Podcast. You

547
00:32:18,200 --> 00:32:22,280
Speaker 1: can find them on Apple Podcasts, Spotify, and at www

548
00:32:22,440 --> 00:32:26,720
Speaker 1: dot Bloomberg dot com, slash podcast Slash Law, and remember

549
00:32:26,760 --> 00:32:29,720
Speaker 1: to tune into The Bloomberg Law Show every weeknight at

550
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