Guns and Drug Users & World Cup Visa Problems

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1:45This is Bloomberg Law with June Grosso from Bloomberg Radio. John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol. He only had three or four glasses of wine a night. Okay. Are they all habitual drunkards who would be properly disarmed for life? You may be wondering why Justice Neil Gorsuch was questioning whether some of the founding fathers would have been considered habitual drunkards. After all, the case before the justices was about a federal law banning gun ownership by marijuana users.

2:31Well, the Supreme Court's recent analysis of Second Amendment cases relies on the government showing a history of analogous restrictions to support gun control laws. And in this case, the government pointed to founding error laws that restricted the rights of habitual drunkards. But the court wasn't convinced. And today it ruled unanimously that the government can't categorically bar marijuana users from possessing firearms and can't prosecute a Texas marijuana smoker for having a gun. Justice Gorsuch wrote the majority opinion, finding that the government's, quote, expansive approach to the federal ban couldn't be squared with the country's historical approach toward firearms.

3:16My guest is an expert in constitutional law, Louis Michael Seidman, a professor at Georgetown Law. His new book is entitled The Constitution Cannot Save Us, Why We Can No Longer Rely on Our Founding Document. This was about the constitutionality of one part of the Gun Control Act. So explain what the justices decided here. So the court was unanimous, and they held that the Second Amendment to the Constitution did not permit depriving somebody of a gun just because of marijuana use. I think that the court in this case, it's reached results that most Americans would think are common sense, make logical sense.

4:03In a case a couple of years ago, the court rejected a claim by a violent domestic abuser that he had a right, constitutional right, to have a gun. But the court says an occasional or even a regular marijuana user does have a right to a gun. And I think most people can understand that distinction and would probably agree with it. The problem with what the court's done is not with the particular results it's reached. The problem is with the test it's used. So what the court has said is that the way you decide these cases is by looking to the 18th century, to the 1700s, and seeing if there was some practice that was analogous to the regulation that's being upheld now.

4:55And that leads to really bizarre sorts of historical inquiry. So a lot of the court's opinion in this case was devoted to whether or not laws that restricted the activity of habitual drunkards in the 18th century were the same or different from laws that prohibit marijuana users in the 21st century from having a gun. And that kind of analysis is kind of silly because, of course, when you compare any two statutes, they're going to be alike and different in an infinite number of respects. So it largely depends on whether you seize on the likeness or the difference. And when you're comparing the 18th century to the 21st century, almost everything is really different because the country was really different in the 18th century.

5:50It was a small, rural, slave-dependent republic huddled along the eastern seaboard. There were no automatic weapons, no drive-by shootings, no terrorism. It was just a completely different place. So what you end up with, I think, is the justices having more or less free range to write down laws that they think violate common sense, uphold laws that they don't think. And if that's all that the justices are going to do, then that raises really serious questions about whether they ought to be substituting their judgment for democratically elected institutions. Well, I mean, isn't that the problem with this textualist analysis or originalist analysis that the court is now wedded to because of the six conservatives.

6:43So you have not only the conservatives, but the liberal justices engaging in the same kind of analysis, looking back in time. The problem with originalism, they're really two separate problems, and they're both really serious. One problem, you might put it this way, one problem is how would we ever know? and the other is why would we ever care, right? So how would we ever know? I have no idea what James Madison would think about gun control legislation in 21st century America. He didn't know anything about it, neither did his contemporaries. We're not gonna kind of dig him out of his grave and say, Jimmy, what do you think about 21st century America?

7:27That's just not gonna happen. So we really don't know the answer. Suppose we did know the answer. Why should anybody care? The people who wrote the Second Amendment died a very long time ago. What we do with guns today doesn't affect them, but it does affect us. And people who are alive now, I would have thought, have some right to be in control of their own country. The outcome was unanimous, but the justices were divided on some of the reasoning. And I think underlying that unanimity was the fact that, as Justice Gorsuch put it, millions of Americans use marijuana. And Gorsuch said the ruling was a very narrow one.

8:10The court's ruling is quite narrow. I think Justice Gorsuch made it narrow in an admirable attempt to get unanimity. And that's something very rare on this court. And he achieved that. All nine justices agreed with him. And I think a big part of the reason is because the opinion makes sense. It makes common sense to say just because somebody uses marijuana, a drug that, according to Justice Gorsuch, there's some evidence that it's more widely used than alcohol today. So the notion that just because of that, somebody should be prohibited from owning a gun does seem just silly. I think the problem is going to arise when the intuitions of five of the justices are not intuitions widely shared by most Americans.

9:02And then you do face the difficulty of why they should control these decisions rather than people who are actually responsible to the American people. And there was an unusual, maybe even shocking pairing in one of the concurrences. One of the most conservative justices, Samuel Alito, and liberal justice Elena Kagan joined together to say they would have written an even narrower opinion than Gorsuch did. I think that is almost certainly the only case this term and maybe the only case ever where the two of them have joined in an opinion joined by nobody else. So the opinion is written by Justice Alito.

9:44It's joined by Justice Kagan. Justice Kagan is a very savvy operator and it's just become increasingly obvious that there is lots and lots of tension between the justices. I think what we're likely to see over the next couple of weeks are a series of split decisions and very angry decisions and so Justice Kagan this was an opportunity for her. It's important to the court's public image that they try to maintain some impression that they're not at each other's throats and that they can agree about things and that it's not just politics. So Justice Kagan seized an opportunity both to demonstrate that and maybe to ingratiate herself some with Justice Alito, but I wouldn't read too much into it.

10:37The fact is the court is very sharply divided. For the first time in generations, the division exactly mirrors the political parties of the presidents who appointed the justices, and that has led to a dramatic decline in public acceptance and regard for the Supreme Court. The court's conservative majority has expanded Second Amendment rights since 2022, Do you see this case as a continuation of that or something different? I think that having established some right to gun ownership, it was inevitable that the court was going to decide, have to decide a series of cases about the reach of that right.

11:28And so this is one of a continuing line of cases that tries to bound the right in some way, saying this is okay, this is not okay. Unfortunately, as this progresses, I think it's becoming more and more apparent that the test the court is using to reach those judgments doesn't really solve the problem. And it's going to be very difficult for the court to convince people that it's actually acting in a principled way and not just responding to the intuition that justices have about various measure. D.C. and 16 states prohibit gun possession by habitual drug users, and another 22 restrict the rights of those people to carry a weapon in public.

12:16Does this affect the state laws? Well, the court has held that the Second Amendment right applies not just to the federal government, but to the states as well. On the other hand, this decision is so narrowly written that it's not at all clear that it would invalidate the state laws you're talking about. And in particular, the court saved the question of or did not address the question of whether it was constitutional for the government to prohibit gun ownership on the part of people addicted to illegal drugs. Thanks so much for your analysis today. That's Georgetown Law Professor Louis Michael Seidman.

12:57His book is entitled The Constitution Cannot Save Us, Why We Can No Longer Rely on Our Founding Document. A note, Michael Bloomberg, the founder and majority owner of Bloomberg LP, the parent company of Bloomberg Radio, is a donor to groups that support gun control, including Everytown for Gun Safety. Coming up next on the Bloomberg Law Show, visa problems at the World Cup. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Publix. Publix is an investing platform that offers access to stocks, options, bonds, and crypto. And they've also integrated AI with tools that can assist investors in building customized portfolios.

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16:11Visit Bahamar.com today and discover a vacation destination where memories are made for a lifetime. Bahamar, life spectacular. It was a stunning World Cup performance as Cape Verde's goalkeeper, Vozinha, made seven saves against tournament favorite Spain with the game ending in a goalless draw. He was named the player of the match, but cried after the game because his mother couldn't afford a visa to the United States. Cape Verde is one of the 50 countries where citizens face a$15 ,000 fee to obtain U.S. visas due to President Donald Trump's border crackdown, something Vozinha's mother couldn't afford.

16:55The story has a happy ending, though, thanks to intervention from House Minority Leader Hakeem Jeffries. He spoke to Secretary of State Marco Rubio, and the State Department has arranged for Vozinha's mother to enter the country with all fees waived to watch her son's next match. But the World Cup has exposed many of the problems with Trump's immigration policies. My guest is immigration law expert Leon Fresco, a partner at Holland and Knight. Leon, tell us about Vozinha. He just had a remarkable game against Spain. It's almost a Disney movie thing where he's a 40-year-old has-been goalie whose time has long passed, and he's working as a part-time job being a goalie.

17:38And he just stopped the best team in the world from scoring any goals with a remarkable game. And he wanted his mother to be able to see the game live, but they denied her visa because the Trump administration now has a new policy that you have to put a$15 ,000 bond in order to come into the country as a visitor. and they didn't have the money to pay for her to come in. And so it's sort of a mini-human tragedy where you have this great Disney story in conjunction with this example where clearly his mother, I doubt, would have overstayed her visa after the FIFA matches, but nevertheless, you know, sanity doesn't prevail.

18:19I mean, it took intervention by the House Minority Leader and the Secretary of State only after this guy achieved fame to get his mother in. Yeah, I mean, again, these are the things people are facing. What's interesting about this is these are the things thousands of people are facing every day, but they're all now being exposed and uncovered as people literally in the World Cup are having to go through this. Including a World Cup referee. Well, not a referee now, I guess. The U.S. decided to reject one of the 52 referees. And FIFA had said that it undertook a three-year campaign to vet and select these World Cup referees.

19:03So what happened was there was a referee from Somalia. And what happens is there are confederations. So there's an African confederation, a European confederation, a North American confederation, a South American confederation, etc. And those confederations decide who are the best referees in the matches that are played in that continent. And so one of the best referees who's considered one of the best referees, not just in the African continent, but amongst all the global referees, is this referee from Somalia. And so FIFA had a rule with the United States when people affiliated with FIFA wanted to be able to come to the United States for the World Cup.

19:46The United States should generally allow them in. This individual applied for a visa to be a referee. Interestingly enough, there is actually language in the foreign affairs manual because nothing could be done by Congress that said, well, but it's not really a good place for these FIFA referees. So they'll just come in on visitor visas. So he applied for a visitor visa. And when it came time to decide whether to approve him or not, the United States Embassy said, no, this person has ties to Al-Shabaab, which is the terrorist organization that does terroristic things in Somalia. And the question is, what does that mean?

20:27Because does that mean he spoke to someone who was in Al-Shabaab, that he did something? I mean, because his daytime occupation is referee. so it's unclear is this nighttime occupation terrorist or did this go too far and so a lot of people were outraged that this referee was not allowed to officiate in the United States but in the end this referee wasn't assigned to any games in Canada or Mexico either so basically what FIFA said is they'll pay this referee to just work even though he's not actually going to work and they assigned them to a game in Europe that's coming up in August to sort of say, here's our reparations to you.

21:09But it was one of many situations where the immigration laws of the United States have intersected with this World Cup to show how things have significantly changed between 2024 and now. You know, there were vague allegations from the Trump administration about this REF's supposed association, but the administration never released any evidence to support its allegations. Correct. The problem is in the visa adjudication world, the only decision maker is the State Department. So there's no federal court lawsuit you can file. The Supreme Court has actually ruled on this twice in the last decade, where they've said there's really no Supreme Court case you can file if the State Department denies your visa.

22:00People have tried to work through some exceptions in different cases, but the point being, just for your listeners, it's very, very, very difficult, if not impossible, to file a federal court lawsuit for a visa denial. And especially when the visa denial is on issues like this, where it's on terroristic grounds, then the problem is the State Department really is betwixt in between because, yes, it's possible that they're overdoing it and they shouldn't deny it but the problem is what if they aren't overdoing it if they have to actually explain to you the visa applicant here's how we know you're a terrorist then the concern is that that would make you have to release sources and methods of getting information as the government which you wouldn't want to do to preserve the sanctity and the safety of those sources and methods and so from that standpoint everybody just has to assume that people are acting in good faith, but because of the restrictions that have been made in the last two years, those presumptions of good faith are less given by the rest of the world when they hear those stories of denials like the denial of this referee.

23:08Was there any player who was denied entry? So interestingly, there have been two players who have denied entry, but they are both denied entry from Canada, which is oddly enough. They haven't been denied entry from the United States. The two that have been denied entry from Canada, one is a player from Ghana who was arrested for a rape, but he hasn't been convicted yet. But when they asked him in his application, was he ever arrested? He put no. And so the Canadians did not allow him. And he's a very popular player in terms of his high level. And so this was significant harm for the Ghanaian team.

23:47And now there's a player from the Ivory Coast who is now implicated in a gambling scheme, and he's been denied entry into Canada. So there's that. Let's turn now from the World Cup to the Supreme Court. So the Supreme Court is going to decide, they took a case, to decide whether immigrants with criminal histories can be held for prolonged periods in federal custody without a bond hearing. And this is because of a Second Circuit decision. Correct. So this has been an issue that's actually been litigated for the last 26 years, and we haven't been able to get a solution to this. Here's what's going on.

24:27There's a statute called Title 8, Section 1226C, but it's also known as 226C, where what happens is, if you have any kind of criminal record, and that's the reason the government is trying to deport you. So the government is saying, you know, we're not deporting you because you overstayed your visa, or we're not deporting you because of some sort of technical violation. This is because you were here legally, and you committed a crime, and you were convicted of the crime, in fact. And so now we're trying to deport you for that reason. There's a statute which says, if you just take the literal interpretation of that statute, hey, federal government, the second you find this person who's a foreign national in America with a criminal conviction, you A, must detain them, and B, you must keep them detained until such time as you can effectuate their removal.

25:28And by the way, if they happen to win their removal case, fine, you can release them then. But if they don't win their removal case, you have to keep them detained for as long as it takes in order to effectuate their removal. So there's been two Supreme Court cases, one that was called the Moore v. Kim, which was right in the beginning of the millennium, and then another one called Rodriguez v. Jennings, which was during the first Trump administration, where courts have tried to figure out what does that mean? Does that really mean forever? What if the government wanted to hold a person in sort of the quote unquote removal process, but forever, just keep them in detention forever and not actually decide their case?

26:14Could the government get away with doing that? Could that actually happen? And so in the first case, the Moore versus Kim that happened at the beginning of the millennium, Justice Kennedy was the plurality fifth vote. And what he said was, look, we don't have any evidence that this is going on. Most of these cases take three months, which it turned out was inaccurate. And the Department of Justice had to take that back. And it was multiple years. But the Justice Department at that time said it was three months. And so he said most of these cases take three months. And here's what he said. Here's what's the key.

26:46He said, if there was ever a specific case where things were taking too long, you should come back and file a as applied challenge saying that you specifically have been held too long. Come back and figure this out. So then what happened after that was the Ninth Circuit and the Second Circuit said, well, that seems a little bit crazy to force every single person to have to do this in their case. So we're just going to put a presumption that after six months, your detention has been unreasonable. The government has to decide your case in six months or if not, then give you a bond hearing. That doesn't mean release you.

27:24That means give you a bond hearing to decide whether you are too dangerous to be released or whether you're too much of a flight risk to be released. And just to be clear, what is a bond hearing? A bond hearing, even if you've been charged for murder, you get a bond hearing. And a lot of people who are charged for murder get bond even, where they actually are released pending the decision whether to convict them or not. So the idea is, if in a criminal case, there are people suspected for murder that get bond hearings and actually get bond, then how in immigration, which is a civil case, could you just categorically say there's a whole group of people that never get a bond hearing, no matter how long they've been detained?

28:07So that's why the Second Circuit and the Ninth Circuit said, no, no, no, that should be six months. The Supreme Court in 2018 said absolutely not. Six months is not what the statute says. Get out of town with that. We meant what we said. If you have a specific person who actually has been detained for a long time, then that person can come back, but not any six-month presumption that that's too long. So there have been subsequent cases, the Second Circuit, the Third Circuit, and the Eighth Circuit, who are all trying to figure out what does that unreasonably prolonged situation mean? And the Second Circuit thought that a person who was detained in total for seven months, they said that was too long.

28:56This person deserves a bond hearing. So they didn't make a presumption everybody gets a bond hearing after seven months, but they said this person does. The third circuit said, look, we're going to have a different multi-factor reasonableness test. We're going to try to figure out whose fault it is. Because sometimes if you put a time period, then the foreign national can ask for continuances until such time as they can get them this presumption of a bond hearing. So they're saying, if that's what you're going to do, we're not going to give you the thing, but we're going to take into account how long, whose fault, how close are we to the end, et cetera, and then you could get a bond hearing if it's still taking too long.