2. Voting Rules and Birthright Citizenship Battles: RICHARD EPSTEIN 090426

WEBVTT
1
00:00:16.399 --> 00:00:20.300
I'm John Batchelor. Mail-in voting. I welcome Professor Richard Epstein
2
00:00:20.359 --> 00:00:22.960
of the Civitas Institute, teaches law at NYU and the
3
00:00:23.000 --> 00:00:27.469
University of Chicago. It's back, just like the great white whale.
4
00:00:27.989 --> 00:00:31.149
The Trump administration returned to the Supreme Court on Thursday,
5
00:00:31.170 --> 00:00:37.609
that's within 24 hours, asking the justices to temporarily pause
6
00:00:37.689 --> 00:00:40.659
an order by a federal judge in Boston that that
7
00:00:40.719 --> 00:00:44.039
blocks the government from implementing parts of a U.S. Postal
8
00:00:44.060 --> 00:00:50.340
Service rule on mail-in ballots. Thursday's filing was the second
9
00:00:50.399 --> 00:00:53.119
time in less than six weeks that the Trump administration
10
00:00:53.189 --> 00:00:55.829
came to the Supreme Court seeking to clear the way
11
00:00:56.590 --> 00:01:00.929
to implement restrictions on mail-in voting. Richard, a very good
12
00:01:00.969 --> 00:01:04.909
evening to you. I cannot find a definitive version of
13
00:01:04.950 --> 00:01:09.000
what's going on here. This very much feels like tag teams.
14
00:01:09.599 --> 00:01:13.459
One comes in, files runs out the door another team
15
00:01:13.500 --> 00:01:17.459
comes in files runs out the door mail-in voting i've
16
00:01:17.939 --> 00:01:21.140
observed over the years is very useful to people who
17
00:01:21.180 --> 00:01:24.120
vacation and won't be here on election day who are
18
00:01:24.280 --> 00:01:28.219
ill don't like the traffic and generally understood to be
19
00:01:28.359 --> 00:01:30.939
well to do that's who uses mail-in voting because it
20
00:01:31.000 --> 00:01:34.459
requires several more steps than just going to the poll
21
00:01:34.500 --> 00:01:36.500
and voting you've got to anticipate you've got to be
22
00:01:36.560 --> 00:01:39.439
registered you get the envelope you have to seal it
23
00:01:39.700 --> 00:01:43.090
feel fill it out You have to mail it on
24
00:01:43.129 --> 00:01:47.299
a certain deadline. It's complicated. It's not simple. But the
25
00:01:47.340 --> 00:01:50.560
Trump administration doesn't like it because it uses the word fraud.
26
00:01:50.599 --> 00:01:52.140
Good evening to you, Richard.
27
00:01:53.079 --> 00:01:55.400
Well, in fact, when people use the word election, the
28
00:01:55.420 --> 00:01:57.620
next word that comes out of their mouth is fraud.
29
00:01:58.379 --> 00:02:00.650
And the issue here is not whether or not fraud
30
00:02:00.689 --> 00:02:04.049
is appropriate. Everybody believes that if you're not eligible to
31
00:02:04.090 --> 00:02:07.659
vote and you cast a ballot, it's wrong. The weaker
32
00:02:07.700 --> 00:02:10.280
form of fraud, which is not covered by these cases,
33
00:02:10.639 --> 00:02:13.360
is somebody tells you something which is demonstrably wrong on
34
00:02:13.400 --> 00:02:15.819
the strength of that you vote, and the vote in
35
00:02:15.879 --> 00:02:18.270
effect counts as much as somebody who passes it with
36
00:02:18.310 --> 00:02:23.229
full information. This order is only against the mail-in vote,
37
00:02:24.009 --> 00:02:26.969
and it stems back to a problem that everybody understands
38
00:02:27.030 --> 00:02:31.219
about elections, which is the chain of custody becomes absolutely
39
00:02:31.259 --> 00:02:34.719
critical to make sure that only correct ballots are done.
40
00:02:35.300 --> 00:02:38.439
And so the moment you lengthen the chain, the possibility
41
00:02:38.479 --> 00:02:41.639
of fraud always gets larger. The exact amount of the
42
00:02:41.699 --> 00:02:44.259
fraud given the length of the chain is very problematic,
43
00:02:44.300 --> 00:02:47.330
and nobody is exactly confident of what it should be done.
44
00:02:48.050 --> 00:02:50.490
But there are, of course, steps that you can take
45
00:02:50.889 --> 00:02:52.969
when you're dealing with this. One is you can be
46
00:02:53.030 --> 00:02:54.849
very careful in the way in which you mail out
47
00:02:54.930 --> 00:02:58.360
ballots that people can fill in. You don't want to
48
00:02:58.400 --> 00:03:00.800
mail out ballots to people, for example, who are dead.
49
00:03:01.259 --> 00:03:03.400
And you don't want to leave ballots around that somebody
50
00:03:03.439 --> 00:03:06.789
could pick up and then customized to somebody who doesn't exist.
51
00:03:07.830 --> 00:03:10.849
So stopping this is essentially a constant situation, and then
52
00:03:10.889 --> 00:03:13.969
you get the following paradox. You manage to stop all
53
00:03:14.000 --> 00:03:16.879
the fraud, none takes place, and everybody says, see, we
54
00:03:16.900 --> 00:03:19.979
don't need any of these precautions because elections are already clean.
55
00:03:20.500 --> 00:03:22.439
And then you remove them, and there's a massive amount
56
00:03:22.500 --> 00:03:24.219
of fraud, so you put them back in again, and
57
00:03:24.240 --> 00:03:27.849
there's a kind of a weak cyclical quality which takes
58
00:03:27.969 --> 00:03:30.990
over and defines these kinds of cases. But the chain
59
00:03:31.009 --> 00:03:33.819
of custody problem is very real. And so then the
60
00:03:33.879 --> 00:03:37.060
question is, what did the Trump administration want to do?
61
00:03:38.099 --> 00:03:40.240
What it did is it says we control the post
62
00:03:40.780 --> 00:03:42.620
and that what we can do is make sure that
63
00:03:42.659 --> 00:03:45.370
the stuff that comes through the post office is in
64
00:03:45.439 --> 00:03:48.330
fact going to be properly handled. Now, if this were
65
00:03:48.349 --> 00:03:51.550
a case of viewpoint discrimination, you don't let the red
66
00:03:51.590 --> 00:03:53.909
or the blue people vote. Everybody would be up in
67
00:03:53.990 --> 00:03:56.870
arms and rightly so. But if you read the regulation
68
00:03:56.909 --> 00:03:59.050
and the government's defense of it, they said for a
69
00:03:59.090 --> 00:04:03.539
long period of time, using ballots that are authenticated in
70
00:04:03.560 --> 00:04:05.990
the way in which the envelope is organized and signed
71
00:04:06.530 --> 00:04:10.650
and tracked, is a perfectly legitimate function. The government's position
72
00:04:10.849 --> 00:04:12.889
is we can do this and we don't have to
73
00:04:12.949 --> 00:04:14.849
prove what the level of fraud is that we're trying
74
00:04:14.870 --> 00:04:18.310
to protect because we do not want this power to depend, well,
75
00:04:18.589 --> 00:04:21.949
it's 1% this year and 0.05% next year. We do
76
00:04:21.990 --> 00:04:24.350
what we don't do. And there's a lot of case
77
00:04:24.370 --> 00:04:27.129
law authority, I believe, that tends to support the position
78
00:04:27.689 --> 00:04:31.290
that the control of fraud can require these kinds of situations.
79
00:04:32.139 --> 00:04:35.339
They are not telling the state who gets to vote
80
00:04:35.379 --> 00:04:37.839
or how those votes start to take place. It's just
81
00:04:37.879 --> 00:04:41.310
trying to authenticate the transmission through the federal system. And
82
00:04:41.319 --> 00:04:43.430
there's a fair amount of government case law on that.
83
00:04:43.850 --> 00:04:46.970
I actually read the government brief last night by Mr. Salmon,
84
00:04:47.329 --> 00:04:48.970
and it was a lot stronger than I thought it
85
00:04:49.029 --> 00:04:51.730
would be. I could still be wrong. I don't claim
86
00:04:51.769 --> 00:04:55.740
to have perfect expertise on this area. The argument on
87
00:04:55.769 --> 00:04:58.040
the other side is that this is a First Amendment
88
00:04:58.060 --> 00:05:01.759
kind of infringement situation. And it's saying thousands of people
89
00:05:01.800 --> 00:05:03.579
could be kept out of the polls by these sorts
90
00:05:03.620 --> 00:05:07.160
of requirements. And I really don't understand exactly how that
91
00:05:07.259 --> 00:05:11.740
works because you can have anybody vote who's eligible under
92
00:05:11.779 --> 00:05:14.740
state laws. Nobody's tried to challenge that. It's just that
93
00:05:14.759 --> 00:05:18.259
the transmission through the federal system has to make sure
94
00:05:18.740 --> 00:05:21.300
that ballots that should be sent are sent and ballots
95
00:05:21.319 --> 00:05:24.180
that should be sent are sent. And that is not
96
00:05:24.220 --> 00:05:27.370
effective trying to change the eligibility rules as people have said.
97
00:05:28.230 --> 00:05:31.430
In addition, of course, Congress does have a general override
98
00:05:31.509 --> 00:05:33.790
on everything except the place for the election of senators.
99
00:05:34.310 --> 00:05:36.750
And fraud is a reason for which you can exercise it.
100
00:05:37.209 --> 00:05:39.610
And so to me, to see that there's a First
101
00:05:39.689 --> 00:05:42.589
Amendment violation in this case would require you to show
102
00:05:42.649 --> 00:05:45.670
some kind of a disparate impact or conscious effect in
103
00:05:45.689 --> 00:05:48.990
favor of one party over the other. Now, can we
104
00:05:49.089 --> 00:05:51.930
say this? And here's the problem. I assume that all
105
00:05:51.949 --> 00:05:54.310
of the attorney generals who are fighting this are from
106
00:05:54.329 --> 00:05:56.129
blue states. Is that correct, Johns?
107
00:05:56.870 --> 00:05:58.569
To my knowledge, yes, it's a blue-red.
108
00:05:58.589 --> 00:06:01.550
Yeah, I mean, yeah, it's a blue-red split. And what's
109
00:06:01.610 --> 00:06:04.410
the judgment? The judgment is that we're not worrying about
110
00:06:04.449 --> 00:06:07.050
the voting of people who were sequestered because of illness
111
00:06:07.089 --> 00:06:10.050
or were on vacations to Martha's Vineyard and so forth.
112
00:06:10.649 --> 00:06:12.920
It's the argument about what you deal with the rest
113
00:06:12.949 --> 00:06:16.420
of the population, immigrant population, a population that moves from
114
00:06:16.540 --> 00:06:19.600
one place to another, who will cast votes. And there's
115
00:06:19.660 --> 00:06:23.079
no question that Brother Trump, our president, is somebody who's
116
00:06:23.100 --> 00:06:29.250
still completely fixated by the 2008 2020 election and continues
117
00:06:29.290 --> 00:06:32.350
to believe that massive fraud that controlled it. I'm not
118
00:06:32.370 --> 00:06:35.610
going to make any judgment on that, but it turns
119
00:06:35.670 --> 00:06:37.870
out that's why I had such a fury. But on
120
00:06:37.889 --> 00:06:42.970
the other question about authentication and validation, the standard that
121
00:06:43.050 --> 00:06:45.329
all the people, and I tend to agree with this use,
122
00:06:45.750 --> 00:06:47.529
is you want to get on an airplane today, you
123
00:06:47.569 --> 00:06:50.490
have to present some kind of a reliable ID. And
124
00:06:50.550 --> 00:06:52.889
nobody seems to question that. And the number of people
125
00:06:52.910 --> 00:06:56.410
who have those sorts of IDs that 99.some percent of
126
00:06:56.430 --> 00:07:00.060
the population. Somebody will quote the figures saying twice as
127
00:07:00.120 --> 00:07:02.920
many black people don't have IDs as white, but that's
128
00:07:02.959 --> 00:07:07.480
consistent with there being a 99.9% white people with votes
129
00:07:07.980 --> 00:07:12.430
on ID cards and 99.8% of black people. So it's
130
00:07:12.509 --> 00:07:15.509
a difference of one-tenth of 1%. The ratio doesn't tell
131
00:07:15.550 --> 00:07:17.750
you anything. It's the size of the gap between the
132
00:07:17.790 --> 00:07:20.470
two numbers, which is much more instructive as to whether
133
00:07:20.490 --> 00:07:23.600
or not there's going to be a partisan case. And
134
00:07:23.620 --> 00:07:25.389
so then you have to come to the Supreme Court,
135
00:07:25.420 --> 00:07:28.579
and which way is it likely to vote? Well, I
136
00:07:28.620 --> 00:07:31.160
think on this one, my guess is that unless I'm
137
00:07:31.220 --> 00:07:33.740
missing something, which is always possible given the nature of
138
00:07:33.779 --> 00:07:38.259
this ping-pong exchange of situation, I think I would vote
139
00:07:38.300 --> 00:07:41.060
for Trump on the ground it's a neutral regulation intended
140
00:07:41.100 --> 00:07:44.120
to deal with a legitimate interest, which isn't ever due
141
00:07:44.300 --> 00:07:46.819
to skew the outcome one way or the other.
142
00:07:46.860 --> 00:07:49.860
Professor, I want to take a moment to read the Constitution,
143
00:07:50.019 --> 00:07:55.420
just to read that. This is Article 1, Section 4,
144
00:07:55.420 --> 00:07:59.720
Clause 1. The times, places, and manner of holding elections
145
00:07:59.779 --> 00:08:03.980
for senators and representatives shall be prescribed in each state
146
00:08:04.579 --> 00:08:09.199
by the legislature thereof. But the Congress may at any
147
00:08:09.279 --> 00:08:14.500
time by law make or alter such regulations except as
148
00:08:14.560 --> 00:08:17.459
to the places of choosing senators.
149
00:08:18.060 --> 00:08:18.160
End.
150
00:08:19.060 --> 00:08:19.660
That's it.
151
00:08:20.399 --> 00:08:23.139
So essentially what happens, this is one of these neurotic
152
00:08:23.199 --> 00:08:27.189
federalist provisions. Nobody quite knew what they wanted. And so
153
00:08:27.230 --> 00:08:29.329
they say you start with the state at any time
154
00:08:29.370 --> 00:08:32.129
the federal government could come in. Why did they exempt
155
00:08:32.169 --> 00:08:34.690
the rules for senators? Not for any modern reason.
156
00:08:34.730 --> 00:08:36.950
Because the legislature has elected the senators.
157
00:08:37.009 --> 00:08:40.620
Yeah, because essentially in those days, right, they were chosen
158
00:08:40.679 --> 00:08:44.320
by the legislature and you didn't want essentially the federal government.
159
00:08:45.480 --> 00:08:49.549
However, I must interfere for a moment, Professor. Sure. Because
160
00:08:49.570 --> 00:08:53.639
I have seen repeatedly by those who oppose the president
161
00:08:53.659 --> 00:08:56.480
on this matter, that in what I just read, there
162
00:08:56.539 --> 00:09:01.019
is no mention of the executive, even slightly. It's Congress
163
00:09:01.179 --> 00:09:02.419
and the states only.
164
00:09:05.470 --> 00:09:08.570
That's clearly correct. But if you think about the way
165
00:09:08.590 --> 00:09:11.370
in which I put the point, the federal government and
166
00:09:11.409 --> 00:09:15.309
the president have extensive authority over the way in which
167
00:09:15.350 --> 00:09:18.000
you use the mail system. And this has been applied
168
00:09:18.039 --> 00:09:21.110
in many earlier cases to deal with matters concerning elections.
169
00:09:21.870 --> 00:09:25.789
So the issue in this particular case, is that power
170
00:09:25.830 --> 00:09:29.110
sufficient to deal with this? And in order to say that,
171
00:09:29.169 --> 00:09:31.490
you then have to face the challenge, well, no, you
172
00:09:31.570 --> 00:09:33.970
can't do it here because there's something about this, which
173
00:09:34.029 --> 00:09:37.879
is a legitimate exercise of presidential power, which is subject
174
00:09:37.919 --> 00:09:40.779
to the First Amendment. And at that point, the argument
175
00:09:40.799 --> 00:09:44.519
then shifts grounds. And the issue is twofold. Is there
176
00:09:44.559 --> 00:09:47.450
first on the First Amendment questions? Any effort in this
177
00:09:47.509 --> 00:09:51.340
particular case to discriminate on the basis of viewpoint or
178
00:09:51.379 --> 00:09:53.500
to impose a very high tax on the people who
179
00:09:53.559 --> 00:09:56.029
want to vote. So it's akin to a poll tax.
180
00:09:56.710 --> 00:09:59.049
And reading the government's brief, I haven't seen all the
181
00:09:59.129 --> 00:10:02.379
other papers yet. it feels pretty much that this looks
182
00:10:02.419 --> 00:10:05.399
like it's a neutral regulation and that the real issue
183
00:10:05.440 --> 00:10:08.279
in this case is can you issue this regulation if
184
00:10:08.299 --> 00:10:10.960
you're not quite sure of the probability that there is
185
00:10:11.019 --> 00:10:13.799
fraud in the underlying ballots that are being sent through
186
00:10:13.830 --> 00:10:16.950
the mail. But mail fraud is very much a presidential
187
00:10:17.029 --> 00:10:20.809
issue in this case. And here, looking at the evidence,
188
00:10:20.970 --> 00:10:24.000
I don't see anything about this case which suggests that
189
00:10:24.009 --> 00:10:27.200
there's some form of deep irregularity, although there's the obvious
190
00:10:27.259 --> 00:10:29.580
motive of Trump who has not forgotten what his view
191
00:10:29.639 --> 00:10:33.000
was of mail-in votes early on with respect to the
192
00:10:33.000 --> 00:10:37.240
2020 election. But in this case, you don't see anything
193
00:10:37.360 --> 00:10:39.700
other than an effort to try and require that certain
194
00:10:39.720 --> 00:10:43.100
labeling requirements be used. And these are conventional in the
195
00:10:43.179 --> 00:10:46.129
anti-fraud stuff because you're trying to control the chain of
196
00:10:46.210 --> 00:10:48.529
custody so people can't slip the thing in and out.
197
00:10:49.149 --> 00:10:52.610
The First Amendment argument is made on the grounds that, oh,
198
00:10:53.190 --> 00:10:55.070
the number of people going to be excluded on this
199
00:10:55.090 --> 00:10:57.809
is going to be absolutely huge, so that what happens
200
00:10:57.909 --> 00:11:00.950
is the impact of the regulation is in fact going
201
00:11:00.970 --> 00:11:04.049
to suppress First Amendment rights. In order to make that
202
00:11:04.110 --> 00:11:07.120
particular argument, what you then have to do is to
203
00:11:07.129 --> 00:11:09.120
figure out how many people are going to be excluded.
204
00:11:09.620 --> 00:11:12.700
And given that this is a standard ministerial problem rather
205
00:11:12.740 --> 00:11:15.820
than anything else, I think the answer to that particular
206
00:11:15.879 --> 00:11:18.610
question is that the exclusion risk turns out to be
207
00:11:18.690 --> 00:11:22.549
relatively small. So the question then comes, is in order
208
00:11:22.610 --> 00:11:24.389
to regulate, you have to know what the level of
209
00:11:24.470 --> 00:11:27.149
fraud is at the executive branch if you're going to
210
00:11:27.210 --> 00:11:29.679
try to control the post office. And I think the
211
00:11:29.779 --> 00:11:32.179
answer to that question has to be, so long as
212
00:11:32.259 --> 00:11:36.360
fraud is an existential risk, its high level of probability
213
00:11:36.419 --> 00:11:38.639
or its low level of probability is going to be
214
00:11:38.679 --> 00:11:42.539
beside the point. A regulatory power dealing with fraud can't
215
00:11:42.610 --> 00:11:44.789
deal with it when it's only above a certain magical
216
00:11:44.850 --> 00:11:47.279
number or not deal with it when it's below that number.
217
00:11:47.620 --> 00:11:49.559
So I think the way this thing will play out
218
00:11:49.980 --> 00:11:52.120
is you have the power. And then the question is
219
00:11:52.139 --> 00:11:54.000
going to be, is there anything about this which looks
220
00:11:54.039 --> 00:11:57.039
to be excessive? And I didn't see that. And so
221
00:11:57.139 --> 00:11:59.779
as this case comes up to the Supreme Court, based
222
00:11:59.840 --> 00:12:02.639
upon the public accounts that I've seen of the objections
223
00:12:02.700 --> 00:12:06.210
on the First Amendment, I think they're relatively weak. And
224
00:12:06.330 --> 00:12:08.990
I don't think there's anything here that shows or smacks
225
00:12:09.029 --> 00:12:11.519
of irregularity on the part of the president. And I'm
226
00:12:11.539 --> 00:12:13.779
not saying this as a devotee of the president. I've
227
00:12:13.820 --> 00:12:16.110
opposed him on so many things, I've lost count of it.
228
00:12:16.700 --> 00:12:18.860
But I think even he is entitled to the fact
229
00:12:18.940 --> 00:12:21.799
of a neutral estimate of what you think the odds are,
230
00:12:21.850 --> 00:12:23.990
plus and minus in a case. And you just don't
231
00:12:24.039 --> 00:12:26.929
denounce somebody because you don't like any of his other decisions.
232
00:12:27.309 --> 00:12:29.269
So I actually think when this one comes to the
233
00:12:29.309 --> 00:12:32.429
Supreme Court, there's a good chance that the Supreme Court
234
00:12:32.470 --> 00:12:36.210
will affirm the president. The question then is, would I
235
00:12:36.250 --> 00:12:39.789
give a temporary injunction on this? My answer to the question,
236
00:12:39.830 --> 00:12:42.049
I would allow the president's system to be put into
237
00:12:42.090 --> 00:12:44.549
place now and stop it, because if what you do
238
00:12:44.590 --> 00:12:46.809
is you slow it down for a long period of time,
239
00:12:47.370 --> 00:12:49.169
the system is not going to be put into place
240
00:12:49.549 --> 00:12:52.429
until after the parliamentary votes are made or the early
241
00:12:52.470 --> 00:12:54.830
voting is made in some states. And then trying to
242
00:12:54.889 --> 00:12:57.649
impose the system halfway through is a real kind of
243
00:12:57.769 --> 00:12:59.889
nightmare because you don't know what to do with the
244
00:12:59.929 --> 00:13:02.370
so-called ballots that were previously cast.
245
00:13:02.389 --> 00:13:05.710
In other words, whatever decision is made, For the next
246
00:13:05.789 --> 00:13:08.610
election cycle, not this one. Is that what you're saying, Professor?
247
00:13:08.720 --> 00:13:10.370
No, I'm saying if you want it for this one,
248
00:13:10.379 --> 00:13:12.840
you have to grant the president the injunction and then
249
00:13:12.879 --> 00:13:15.820
lift it if you decide it's wrong. You cannot impose
250
00:13:15.919 --> 00:13:19.320
a scheme halfway through. And that's what would happen if
251
00:13:19.360 --> 00:13:22.039
they take a long time. I think the justices are
252
00:13:22.080 --> 00:13:24.450
keenly aware of that. And my guess is that they
253
00:13:24.470 --> 00:13:26.850
will make a decision on this thing within a couple
254
00:13:26.889 --> 00:13:29.690
of days. Because otherwise, it's going to be bad no
255
00:13:29.710 --> 00:13:30.230
matter what you do.
256
00:13:30.490 --> 00:13:34.090
Birthright citizenship. Professor Richard Epstein, we turn to there's new
257
00:13:34.129 --> 00:13:39.769
decision is in the balance about birthright citizenship. I'm John Batchelor.
258
00:13:40.769 --> 00:13:42.769
¶ ¶.
259
00:14:02.389 --> 00:14:05.809
I'm John Batchelor with Professor Richard Epstein, throwing up constitutional
260
00:14:05.990 --> 00:14:10.350
roadblocks in all directions for the vote in November, but
261
00:14:10.389 --> 00:14:13.690
at the same time, a very large story about birthright
262
00:14:13.710 --> 00:14:17.190
citizenship that is all voting for the future, if you
263
00:14:17.230 --> 00:14:21.990
consider the scale of this. On Wednesday, within 48 hours,
264
00:14:22.590 --> 00:14:26.429
a federal judge in Maryland temporarily blocked the Trump administration
265
00:14:26.490 --> 00:14:32.139
from enforcing that order just written by the President Donald Trump,
266
00:14:32.159 --> 00:14:37.169
a new order, seeking to narrow the availability of birthright citizenship. So,
267
00:14:38.049 --> 00:14:41.950
while it went its way through the court before, and
268
00:14:41.990 --> 00:14:46.899
birthright citizenship was considered not a problem, the Supreme Court said,
269
00:14:46.940 --> 00:14:49.899
if you're born here, you're an American citizen. Now the
270
00:14:49.940 --> 00:14:52.860
Trump administration has gone back with another version of this,
271
00:14:53.639 --> 00:14:57.590
and they've narrowed it. The judge who gave the stay
272
00:14:57.850 --> 00:15:04.029
on Wednesday said, named Judge Deborah Boardman. Boardman said that
273
00:15:05.429 --> 00:15:08.330
as it reads now, the Trump's executive order, quote, is
274
00:15:08.470 --> 00:15:11.990
almost certainly unconstitutional. Your comment, Professor?
275
00:15:12.529 --> 00:15:14.379
Well, it depends on what part of it. You should
276
00:15:14.409 --> 00:15:17.860
know Justice Boardman is not a first-time entrant in this
277
00:15:17.899 --> 00:15:23.120
particular situation. If you recall, back in early 2025, there
278
00:15:23.139 --> 00:15:26.779
were a flurry of four decisions made by lower court judges,
279
00:15:26.960 --> 00:15:29.850
all of which had denounced the the Trump position. She
280
00:15:29.909 --> 00:15:33.220
wrote the longest and most elaborate of those opinions, and
281
00:15:33.289 --> 00:15:36.480
I thought that it was 100% wrong, because what she
282
00:15:36.559 --> 00:15:38.980
did is she said the words in the United States
283
00:15:39.100 --> 00:15:42.340
or subject to the jurisdiction of the United States are synonyms,
284
00:15:42.600 --> 00:15:45.659
which is incorrect if you do any close examination of
285
00:15:45.679 --> 00:15:49.139
the historical record. But now she's on much stronger grounds
286
00:15:49.240 --> 00:15:52.120
because it turns out that the Chief Justice is equally
287
00:15:52.179 --> 00:15:55.509
ignorant of the history of the Constitution, so he basically
288
00:15:55.549 --> 00:15:58.679
made that equation. What does this mean? It means that
289
00:15:58.779 --> 00:16:01.519
if you do have some person who was born inside
290
00:16:01.570 --> 00:16:04.309
the United States and is directly covered by that order,
291
00:16:04.809 --> 00:16:08.909
it seems to me that it's that far, it's unconstitutional,
292
00:16:09.169 --> 00:16:11.870
which is what she said. There's still two other issues
293
00:16:11.909 --> 00:16:14.519
that you kind of have to deal with. And one
294
00:16:14.559 --> 00:16:18.080
of them is how broad is the diplomatic immunity exception
295
00:16:18.120 --> 00:16:21.980
to that? So if somebody is a foreign national, but
296
00:16:22.039 --> 00:16:25.220
not an ambassador, but somebody working at the office in
297
00:16:25.259 --> 00:16:28.159
a low-level capacity, Are those children going to be covered
298
00:16:28.200 --> 00:16:30.460
as well or not? I think the correct answer to
299
00:16:30.500 --> 00:16:34.259
that question on the traditional international law principle is if
300
00:16:34.279 --> 00:16:36.970
you're working for the foreign government in that kind of capacity,
301
00:16:37.500 --> 00:16:39.990
the nature of the role doesn't matter. It's not applied
302
00:16:40.029 --> 00:16:43.409
only to senior people. It's applied to everybody. The other
303
00:16:43.470 --> 00:16:47.070
interesting question is a question about the territories of the
304
00:16:47.110 --> 00:16:50.590
United States. This turns out to be an immensely difficult
305
00:16:50.669 --> 00:16:53.789
question because although people tend not to think about it,
306
00:16:54.220 --> 00:16:57.740
there are, in fact, not only state governments, not only
307
00:16:57.840 --> 00:17:01.480
federal governments, but also territorial governments that are governed under
308
00:17:01.519 --> 00:17:05.660
the territorial clause in Article I, saying in effect that
309
00:17:05.700 --> 00:17:08.680
the Congress shall set up a regime for needful rules.
310
00:17:09.220 --> 00:17:11.859
It has been conclusively held in all sorts of other
311
00:17:11.880 --> 00:17:15.299
cases against some strong opposition that the rules that you
312
00:17:15.319 --> 00:17:18.720
put into the territories need not bear any relationship to
313
00:17:18.740 --> 00:17:21.329
the rules that are put into the state. The Equal
314
00:17:21.369 --> 00:17:24.670
Protection Clause defines citizens And it says that no state
315
00:17:24.690 --> 00:17:27.990
shall make or enforce any law. But in this particular case,
316
00:17:28.029 --> 00:17:31.450
it's a territorial situation. And so the question is, does
317
00:17:31.470 --> 00:17:34.430
the president have more power there than he has in
318
00:17:34.490 --> 00:17:37.349
other places? And is it now going to be possible
319
00:17:37.390 --> 00:17:39.710
to say that anybody who comes and gives birth in
320
00:17:39.769 --> 00:17:43.230
Guam is not a citizen of the United States? Because
321
00:17:43.309 --> 00:17:46.450
essentially what's happened is they're not covered by the Equal
322
00:17:46.509 --> 00:17:50.130
Protection Clause, because even though they're covered by the Citizenship Clause,
323
00:17:50.789 --> 00:17:52.869
it turns out that the protection that you get under
324
00:17:52.910 --> 00:17:55.740
the Equal Protection Clause is not going to be there.
325
00:17:56.180 --> 00:17:57.740
I don't know what the answer is going to be
326
00:17:57.759 --> 00:18:01.799
to that. And there's also another question nobody's quite sure about.
327
00:18:02.299 --> 00:18:05.619
This is a birthright citizenship that applies to children born here.
328
00:18:06.019 --> 00:18:08.460
But now what the president does is he says, I'm
329
00:18:08.500 --> 00:18:11.079
going to keep any and all pregnant women from foreign
330
00:18:11.119 --> 00:18:14.009
nations from coming into this country. And so that birthright
331
00:18:14.049 --> 00:18:17.970
citizenship does depart. And at this particular point, you're not
332
00:18:17.990 --> 00:18:20.930
dealing with the birthright stuff. you're dealing with as generally
333
00:18:20.990 --> 00:18:25.000
regarded as a virtually plenary power of the federal government
334
00:18:25.380 --> 00:18:27.920
to prevent the entry of anybody into the United States
335
00:18:28.220 --> 00:18:30.259
who is not a citizen without having to show some
336
00:18:30.299 --> 00:18:33.460
particular cause. And if that's the case, and you do
337
00:18:33.519 --> 00:18:36.180
have a cause, then you could keep those women out,
338
00:18:36.680 --> 00:18:40.579
which then raises the further unresolved question, can you let
339
00:18:40.619 --> 00:18:43.440
them in on condition that they renounce in advance the
340
00:18:43.480 --> 00:18:46.430
citizenship of any child they have who comes into the
341
00:18:46.509 --> 00:18:49.289
United States? Or can you ask them a question, are
342
00:18:49.309 --> 00:18:52.009
you pregnant or intending to become pregnant? And if they
343
00:18:52.109 --> 00:18:55.109
answer that question, no, and have the child, then in effect,
344
00:18:55.130 --> 00:18:58.099
that's a fraud, which allows you to revoke the citizenship
345
00:18:58.410 --> 00:19:00.630
of the child. Maybe. I don't know what the answer is.
346
00:19:00.700 --> 00:19:03.140
Nobody else does. What's clear about.
347
00:19:02.960 --> 00:19:05.299
This case is that the.
348
00:19:05.240 --> 00:19:08.980
Chief Justice did not understand one thing. The objection to
349
00:19:09.339 --> 00:19:12.440
birthright citizens in the tourism cases in the United States
350
00:19:12.779 --> 00:19:16.920
is exceptionally high with respect to people straggling across the border.
351
00:19:17.309 --> 00:19:20.190
much less so. And so on that ground, he's strong.
352
00:19:20.630 --> 00:19:23.500
And it turns out there may be a political response
353
00:19:23.519 --> 00:19:26.339
to that, which will go beyond the last executive order.
354
00:19:27.180 --> 00:19:31.640
Professor Richard Epstein of the Civitas Institute commenting on, one
355
00:19:31.660 --> 00:19:36.009
more time, birthright citizenship headed to the Supreme Court. I'm
356
00:19:36.049 --> 00:19:36.750
John Batchelor.