SCOTUS: Trump Immigration Wins & 'Vampire' Gun Law

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2:00This is Bloomberg Law with June Grosso from Bloomberg Radio. The Supreme Court is nearing the end of its term and the number of cases decided along ideological lines is mounting. Today, the court decided four cases and three were by six to three votes with the conservative justices in the majority and the liberal justices in dissent. That makes eight such ideological splits out of 10 cases announced this week. The court strengthened the constitutional right to carry a gun in one of those cases, A Hawaii law that bars people from bringing guns onto private property open to the public, like stores and hotels, without the owner's permission, is known as the vampire rule.

2:49That's because vampires, as every horror fan knows, need an invitation to enter a home. Well, the court's six conservatives just drove a stake into the Hawaii law, saying it violates the Second Amendment. The majority opinion was written by Justice Samuel Alito, who had a what's the big deal attitude during the oral arguments. Why does it matter if store owners and owners of private property that are generally open to the public don't like guns? Why is it a big deal to say they want people carrying guns to stay out? Just put up a sign. But the court's three liberals thought it was a big deal and dissented.

3:30My guest is Second Amendment expert Andrew Willinger, a professor at the Georgia State University College of Law. Andrew, tell us about these so-called vampire laws. In terms of this specific type of law, it's a pretty recent innovation in the sense that we've only really seen this since the Bruin decision. So a group of five states, including Hawaii, in the wake of Bruin, which you'll recall required states to be more lenient in granting concealed carry permits as a general matter. These states that had previously had very restrictive permitting laws changed their laws, but also enacted new restrictions, sensitive place bans.

4:14And again, in the case of this group of five states, what they said is that you want to carry your firearm onto private property that's open to the public. So something like a shopping mall, another type of business establishment, whatever it might be. The default is that you cannot do that unless you have express consent from the property owner. And this was a change from the way things tended to work before, right? Before it was, you could bring your gun onto a private property open to the public unless the property owner posted a sign saying no guns allowed. And since we're going to be talking about Bruin a lot, it established a Second Amendment right to carry a handgun in public and a new legal test that restrictions on Second Amendment rights are permissible only if the government can show a history of similar or analogous restrictions.

5:05Okay, turning back to the Hawaii case now. So it's private property. The property owner has a right to decide who's going to come on his or her property. So why did the six justices strike down the law? Yeah, exactly. So you're right. It deals with a subset of private property. What I think you're asking goes really to this issue that the court, I think, gave short shrift to. We maybe got a taste of that in the oral argument. I think there's actually a very difficult question that Justice Jackson spent a fair amount of time on in her dissent about how this, as a potential Second Amendment issue, interacts with property law and the well-established right to exclude that a property owner has.

5:50And that would basically be a question that you would put at the threshold step one sort of part of this Bruin test, right? You first need to make sure that the law you're dealing with actually implicates the Second Amendment, actually regulates conduct protected by the Second Amendment. Only then do you go into the historical analog part of the test, the part that has gotten, I think, the most attention. And here, I think one of the big takeaways is that the majority, Six Justice majority here, really doesn't give a lot of analysis. Justice Alito writing for the court sort of says, look, it's anything that hampers the ability of a gun owner to bring their gun wherever they might want to.

6:33And that's enough. There you have a law that implicates the Second Amendment, and then you move on to the second step. And critically, the majority seems to say there's no historical analysis, no historical materials that really come to bear on that threshold question. It's just sort of a judicial interpretation of the text, which I should note is pretty subjective, right, according to the judge. You're going to have different judges thinking, you know, oh, this does or does not implicate the right to keep and bear arms. But that's that's what we seem to get from the court here. I mean, property owners can still put up a sign, right, and say no guns allowed.

7:10They can do that in Hawaii. They can do that in any state. And it's also worth noting that this decision doesn't talk about private property not open to the public. So a private house, for example, there seems to be no debate that a homeowner has the right to prohibit firearms, prohibit a visitor from bringing firearms into the house. And I should also say there are potential ways that states like Hawaii could maybe get to a similar place with a law that's drafted a little bit differently. You know, one way that's sometimes talked about it is to sort of force the choice. So force the business owner to actually make a choice about whether gun carrying is permitted or banned when the business applies for or has to renew their business license.

7:57So they'll actually have to make a choice on that form. And the court doesn't really seem to say that that's a problem at all. It's just the fact here that the state is legislating a default for those business owners that haven't made a choice. And then criminalizing on the back end is the problem. So then how important is this decision if property owners can still put up a sign and say, no guns allowed? I think in one sense, it's narrow. And that's the way we've been talking about, right? We're talking about five states. Now, to be sure, those are populist states. I think it's about 20 percent of the population.

8:31but five states and laws that are not just recent, but basically haven't been enforced because they've all been challenged in court and there've been legal proceedings, right? So in that sense, it's a pretty narrow decision that then maybe doesn't have a huge impact. And there may be some workarounds. I think the bigger impacts are sort of doctrinal in how the court's applying this test that we got in the Bruin case now four years ago. And there, I think the signs are that this is a pretty strict test. Some of the decisions, you know, the United States versus Rahimi, we saw some signs like maybe it's going to be a more flexible test, right?

9:09Justice Barrett seems to be maybe on the fence about, you know, how strict of an approach this is, how many gun laws are actually going to fall when, you know, these cases get up to the Supreme Court. And I think this is sort of a step in the other direction of a pretty strict test, because if you have this very, very broad textual definition at step one of the people, of arms, of what types of restrictions implicate the Second Amendment. And then you have at step two, a requirement of a pretty close historical analog, which I think is what the court's doing here. Again, that's the second step, which the court does get to.

9:44That's a difficult test for the government to meet. And so I think this casts some doubt on any legislative effort to innovate in this space, because again, we're seeing these laws that were passed in the wake of the Bruin decision, this sort of new approach that does draw on some maybe historical parallels, at least the state thought so. But the court says that doesn't work. And there are probably many other legislative efforts that may not work if this is the version of Bruin that is going to stand. The state did bring up laws that they thought were analogous, but the conservatives weren't convinced.

10:20And with this Bruin test, it's so much a matter of judgment calls. You know, it's interesting, Justice Hagan is by herself. She actually doesn't join the Jackson dissent. And she writes a very short dissent, basically saying, look, I'm putting aside this question. You know, she thinks Bruin is wrong, but she didn't talk about that. She doesn't talk about step one. She just says, look, you know, There's this set of historical laws from around the time of the founding that did something similar. And it's not exactly the same. And they may have been directed towards different legislative concerns.

10:52But I think they're close enough. Now, again, the fact that that's only one justice tells you something. But I think the analysis by Justice Alito and then Justice Barrett as well, it's a bit of a shift to a more restrictive version of Bruin at that second step. because they really are parsing pretty closely, at least when you talk about these anti-poaching laws that I think sort of the primary analog. The state also has this Louisiana law, which there's a whole nother discussion about. But the anti-poaching laws, there's a pretty close dissection of kind of what's driving those, what exact type of property was this historically.

11:29And that's a more restrictive version, I think, than we saw in Rahimi. There are other parts of this Hawaii law that weren't at issue at the Supreme Court that banned carrying of firearms in 15 sensitive locations, including government buildings, public parks and beaches, and bars and restaurants that serve alcohol. Now, that's being challenged in lower courts. Do you think that even that is, you know, a step too far for this court that they would outlaw even that? I think you're right to identify that as probably one of the next big cases. And I don't know exactly when we'll see this get up to the Supreme Court or which case they'll take.

12:09But I think they have to decide some of these sensitive places they end. I think what's interesting about Justice Alito's opinion here is that it does seem to lean pretty heavily into this idea that you look at the collective burden of the state's gun regulations on gun owners, right? So he's emphasizing this point that Judge Van Dyke made below, that there's 90 plus percent of property that's sort of off limits if you take into account the private property default, right, and you add up all these sensitive places. So I'm not quite sure what the court's going to do with that or how it fits into Bruin, right?

12:45Because you would think under Bruin, you would just go location by location and say, is there a historical analog for this type of a ban in this type of place? But what if the answer is yes, and then you add up all those bans, and the court is sort of still worried that it's too inconvenient for gun owners. I'm not sure. But reading a little bit into Alito's opinion, I think there's at least some justices in that six justice majority that may be willing to strike down some of these sensitive place laws. I mean, I would think not all of them, but some of them on the basis that you add them up together and this is just too inconvenient for somebody who wants to carry their gun around.

13:22It's been a remarkable expansion of gun rights in just a few years. Thanks so much, Andrew. That's Professor Andrew Willinger of the Georgia State University College of Law. 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, the court gives Trump two immigration wins. This is Bloomberg. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need.

14:02Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off. Deep in the work that moves the business. Let's create smarter business. IBM. Never bet against American grit or American energy. Through innovation, Venture Global is not only building some of the largest energy facilities in the world right here in the United States, but delivering American energy at a fraction of the cost and a fraction of the time. So while others are busy talking, we're busy building.

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14:51Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined.

15:30An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by public investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. The Supreme Court handed two immigration wins to the Trump administration today. By a six to three vote down ideological lines, the justices said that President Trump has the power to end legal protections called temporary protected status for people from crisis-ridden countries.

16:22The decision means the administration can deport 350 ,000 Haitians and 7 ,000 Syrians who've been living here legally with TPS status. The ruling will buttress the administration's efforts to terminate TPS for 11 other countries. And in the same 6-3 lineup, the court ruled that migrants must actually set foot in the United States before applying for asylum. Joining me is immigration law expert Leon Fresco, a partner at Holland and Knight, and the former head of the Office of Immigration Litigation during the Obama administration. Leon, we've talked about TPS before, but remind us about it and what the pros and cons are in this case.

17:06Temporary protected status is a statute that the Congress passed and that the president sign that says that when there's things like wars or famines or natural disasters and it wouldn't make any sense for the United States to deport people to a specific country anyway and no one would be expected to go home then the government can temporarily protect them from being undocumented and thus having to be deported to that location and those determinations are made every 18 months and there had been a criticism prior to President Trump's first term, because this was attempted in the first term, but now in the second term too, that whenever a country was appointed for temporary protected status, they were never unappointed.

17:54So whatever the temporary emergency was never ceased to exist. To be fair, there were some people in the United States who had temporary protected status since 1996 in various natural disasters that occurred. So people thought, hey, you know, we need to get this under some order. And then the flip side was, well, people had already developed the roots and had U.S. citizens and children. And this was extremely cruel in order to make them suddenly go home after all these years. So you could see the problem on both sides of this equation. There are good arguments on both sides. And what's the issue in this case involving TPS status for Haitians and Syrians?

18:34The problem in this particular case is that the cases involving Haiti and Syria, the idea was that the plaintiffs were suing, saying that there wasn't an analysis done as to whether it was actually dangerous to send people back to Haiti or Syria. And as your listeners know, Haiti and Syria are not exactly like some of the other countries with TPS. These are countries that continue to have significant problems. And deportation to both of these countries is quite complicated and quite difficult. So the plaintiff said that there was no way that a determination was actually made. Because what's supposed to happen is when the 18 months are coming up to be expired, then the administration is supposed to consult with the Department of Homeland Security, the Department of State, get the country conditions and make a determination as to whether those conditions justify an extension of temporary protected status.

19:34And what the plaintiff said was, no, that wasn't done. This was a racially animus-based decision, meaning the president didn't like immigrants from Syria and from Haiti. And so that's the reason why temporary protected status was not extended. And so the problem is, the question in this case was, there's an actual judicial review bar, there's a statute called Title 8, Section 1254A, B5A, which precludes judicial review of claims challenging the termination of temporary protected status designations. And so the question the Supreme Court was trying to figure out was, does that mean just the analysis about whether a country is dangerous or not?

20:25Or does it mean everything? Meaning that if the president had just said, here's how we're going to decide Haiti, I'm going to blindfold myself and throw a dart. And if the dart hits one location, it will be extended. And if the dart hits another location, it won't be extended. And so the question is, could you go to court and challenge even that? And in a six to three decision, essentially what the court said is this means everything. You can't even challenge that essentially, except, you know, to the extent that there's a racial claim, you could theoretically maybe get into court if you actually had some very overt evidence.

21:06Because there is evidence in this case, the plaintiffs have introduced evidence of racial animus, and that evidence was credited by the district court and by the court of appeals. But here the court said that that evidence of racial discrimination was not enough, that it actually had to be a motivating factor, and that these were just sort of policy views, and that they weren't sufficiently racist enough to actually allow a case like this to go forward. And so that meant that the Haitian and Syrian plaintiffs are out of luck and the Trump administration will be able to end temporary protected status and start deporting people from Haiti and Syria.

21:45The three liberal justices were in dissent and Justice Elena Kagan quoted extensively from Trump's derogatory comments about Haitian immigrants and we know he talked about s-hole countries. She said the evidence is there plain to see in the president's statements which the majority and for that matter his own lawyers cannot even bear to repeat. The statements fairly shout in their racial undertones and overtones alike that race entered into the president's resolve to remove Haitians from this country. Yes, I mean, certainly that's what the dissent showed. They said, first of all, they don't need to show that race was the only motivating factor for the decision, just that it was one motivating factor.

22:27And like you said, they pointed to these extensive public statements by the president about Haitians, which they termed racially charged and reflective of discriminatory intent. And they said, look, here's the point really at the end of the day, which is that the plaintiffs have not had the trial yet. This is just the preliminary injunction stage. And so how could you at this early stage not say that this is sufficient to meet an initial threshold that would allow you to move forward, you know, just to at least stop it for now while we get to the bottom of what was the true situation here that influenced the TPS termination.

23:04But at the end, and this seems to be consistent with what's been going on this entire term, it seems like the Supreme Court patience has worn thin or there's a fatigue by the Supreme Court for a lot of these immigration challenges now. And they seem to want to let the president have some very broad leeway to be able to implement an immigration enforcement restrictive agenda. And so this is one where the court has said, look, at the end of the day, if you can open and give TPS to millions of people, you should be equally able to shut it down. And I guess I understand that from sort of a, if you were to pick the policy argument and then get the law to justify whatever policy argument you were going to make.

23:52It sort of does make sense that why should it be harder to end TPS than it is to give TPS, since the statute does say temporary and the idea is all of this was discretionary. But you are overcoming some serious tripwires here in terms of saying, really, could you really not review if the president decided to do this by shooting at a dartboard? Is there really not a way to say, hey, that's not the way to do TPS. We're not having a debate here that you said in Haiti, there's an 8 % murder rate, and there's really a 9 % murder rate. And so nine is over a threshold that's acceptable, and eight is under.

24:30We're not having that debate. Of course, Congress shielded that from judicial review, but we're having a debate that you didn't actually even pretend to do the analysis that was necessary in order to actually make a considered decision on TPS. Is that really not reviewable? And that's where this court seems to think, yes, that's really not reviewable here, unless there's some dramatic extreme case that would be very hard in theory to actually ever find. And so that's where this case ends up. So does that mean that the Trump administration now has the go ahead? It tried to eliminate protection for 13 of the 17 countries, I believe, who had temporary protected status.

25:15So now it can just go ahead and eliminate TPS for all those other countries. Correct. At this point now, if you are from one of the countries where TPS has been eliminated, there's probably no hope for you. Or I mean, even probably is not the right word. There is really no hope for you to get back the TPS unless the president wanted to try to create some other program to not deport people in that sphere. But that's highly unlikely. And so, yes, all of those individuals will be subject to deportability. So on the ground, how does it work? I mean, you know, OK, we're just going to pick up all the Haitians who had TPS and put them on a plane.

25:53Well, here's what happened. So all of the people with TPS have it until a certain date that it expires. If it already expired, then as of this decision, it's expired. If it's going to expire in a week or a month or whenever they got their approval date to the Department of Homeland Security, let's that continue until that date. And then the day after that expiration date, they are now just like anybody else who the government doesn't really know is here, but they know is here sort of kind of thing. And so each of them will have to be given a piece of paper called a notice to appear. It's like an indictment.