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is Bloomberg Law with June

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Grasso from Bloomberg Radio. President

1:05

Joe Biden is expected to

1:07

announce an executive action that

1:09

would give undocumented immigrants who

1:11

are married to US citizens

1:14

a path to citizenship. This

1:16

says Biden's last executive action, putting

1:18

in place a restrictive new asylum

1:20

ban, is being challenged in the

1:22

courts. Joining me is immigration law

1:24

expert Leon Fresco, a partner at

1:26

Hollondon Night. Leon, tell us what

1:28

you know about this new executive

1:30

order on immigration. So

1:33

tomorrow there's going to be an announcement

1:35

by the Biden administration which will take

1:37

what is estimated to be about a

1:40

million people who are here without lawful

1:42

status. What they did was they crossed

1:44

the border illegally. But after they crossed

1:47

the border illegally, they married a US

1:49

citizen. And so there's this very often

1:51

misunderstood part of the law where people

1:54

think, oh, if you just marry a

1:56

US citizen, you're fine. You can get

1:58

a green card. That's actually not true.

2:01

That's only true for people who overstayed

2:03

a visa that they entered in lawfully.

2:05

But if you actually walked across the

2:07

border illegally, you actually cannot get a

2:09

green card. You have to leave the

2:12

United States and apply for a waiver

2:14

and hope you get it. And

2:16

so a lot of people won't take that

2:18

risk. Well, the Biden administration is announcing a

2:21

process called parole in place, which is

2:23

saying you no longer have to leave

2:25

the country. You can stay here in

2:27

America and we will parole you in

2:29

the country, meaning we will pretend like

2:31

you entered in legally so that you

2:33

now have the ability to apply for

2:35

a green card based on this marriage.

2:38

And so that will literally give a

2:40

pass to citizenship to about a million

2:42

people who did not have it previously.

2:44

Are they giving them any more rights

2:46

than they had before? Or are they

2:48

just saying you can do it here?

2:50

You don't have to go back to

2:52

your home country. So the right

2:54

that they're giving them is the right to do

2:56

it here. Because the point is that

2:59

ability is not exactly clear in the

3:01

law, whether it exists or not, which

3:04

is can you parole somebody? Because a

3:06

parole, here's what a parole is. People

3:08

think of parole with during the normal

3:10

definition of the word, which is you're

3:13

in prison, you get let out early.

3:15

But in immigration, that's not what a

3:17

parole is. In immigration, what a parole

3:19

is, is a permission flip to be

3:21

let in the United States, even though

3:23

you don't have any reason to be

3:25

here. But what happens is that permission

3:28

flip can be revoked at any time.

3:30

But usually that permission flip is given

3:32

to you at the border, at a

3:34

port of entry, at the border when

3:36

you apply, and it's not

3:39

given to you from inside the country.

3:41

Well, a few years ago, there was

3:43

this thing invented called parole in place.

3:46

The idea was you didn't have to

3:48

be given this permission flip at the

3:50

border. You didn't have to leave and

3:52

come back. You could literally be given

3:55

it while you were inside the United

3:57

States, because there was nothing technically in

3:59

the law. that prohibited it, so

4:01

why couldn't it be done? And

4:03

it was done in the

4:05

context of people who crossed

4:08

the border illegally, and

4:10

not just married US citizens, but literally

4:12

married US citizens who were

4:14

in the military. There was a program

4:16

that was done during the Iraq War

4:19

that said, look, if you were gonna go to

4:21

the Iraq War, you should not

4:23

have to worry that your undocumented files would

4:26

be deported if you died

4:28

or something bad happened. So we're

4:30

gonna parole and place your undocumented

4:32

spouse so that they can

4:35

have a path to a green card.

4:37

And that actually still is the law,

4:39

which is nobody's actually challenged that, that

4:41

if you were the undocumented spouse of

4:44

a US military person, that

4:46

that person could get a parole

4:48

in place. So now what the

4:50

Biden administration would be doing is

4:53

trying to expand this experiment to

4:55

everybody else, not just spouses of

4:57

US military people, but literally any

4:59

US citizen. And so the

5:01

question will be, obviously, will there

5:04

be lawsuits filed and will those lawsuits

5:06

be successful? If you came

5:08

here illegally and you married a US

5:10

citizen, does that normally get you citizenship

5:13

when you go through the process? So

5:16

only if you entered legally

5:19

and overstayed your visa could

5:22

a marriage fix your situation.

5:24

If you entered illegally, if you

5:27

cross the border without anybody detecting

5:29

you, and then you try

5:31

to fix your situation by marrying a US

5:33

citizen, that actually requires

5:35

you to apply for a

5:37

waiver at an embassy

5:39

abroad and hope that that waiver

5:41

is granted to you in order

5:44

to reenter. And that is

5:46

why many, many people do not do that

5:48

because they are terrified that they will not

5:50

be let in because that's a discretionary waiver.

5:52

And if you don't get it, you have

5:55

no legal recourse. You

5:57

cannot do anything. And so... most

6:00

people who cross the border

6:02

and marry a U.S. citizen

6:04

are not willing to take

6:06

that process. And so this

6:08

would obviate that need and

6:11

would allow them to apply for a green

6:13

card without leaving the United States. This would

6:15

allow them to do it from within the

6:17

United States. Being married to

6:19

a U.S. citizen, does that

6:21

weigh in your favor when

6:23

they're considering whether or not to

6:26

give you citizenship? So there's

6:28

a category of getting a green card

6:30

called spouse of a U.S. citizen. So

6:33

in any case where a U.S. citizen

6:35

marries someone who is not a national

6:37

of the United States, as

6:39

long as they follow all the

6:41

rules, that person can obtain lawful

6:43

permanent residence. So that exists. So

6:46

anybody who's a U.S. citizen today

6:48

can go to Sweden or Namibia

6:51

or Australia or wherever, China, and

6:53

marry a foreign national. And so

6:56

long as that foreign national isn't

6:58

a terrorist or a drug dealer

7:00

or something else, they can go

7:02

through a process to get that

7:04

foreign national lawful permanent residency. What

7:07

this is changing is just that

7:09

there's a barrier that exists, that

7:11

that marriage isn't enough to give

7:13

the person lawful permanent residency in

7:15

a case where that person's not

7:17

getting across the border illegally. So

7:21

in those cases at the moment, it

7:23

doesn't work. You can't get a green

7:25

card based on marrying a U.S. citizen.

7:27

But what Biden would do is he

7:29

would change this so that you could

7:31

get a green card, even if you

7:33

crossed illegally and married a U.S. citizen.

7:35

So I mean, is it likely that

7:37

most of those one billion people will

7:39

be getting green cards? Well,

7:42

this is going to be the

7:44

challenge. There's going to be basically

7:46

three challenges to this. First

7:48

will be, will there be a court decision

7:51

that enjoins this? And,

7:53

you know, I'm sure there will be people

7:55

that challenge its faith and perhaps other interested

7:57

groups who challenge this and say that it's

8:01

Secondly, there is the

8:03

election coming up. And

8:05

so let's say there's really a million people

8:07

who are applying for this process. If

8:09

Trump wins, there's no way that the

8:12

million people who will have joined the

8:14

line in order to

8:16

get their case processed, probably almost none of

8:18

them will have had their case processed

8:20

by the time Trump comes into office.

8:22

So he can just cancel all of

8:24

those applications and say, thank you very

8:27

much for paying your fee. I

8:29

don't care. I'm canceling this end of story.

8:32

And that's going to be the end of that. And so

8:35

that's problem number two. And

8:37

then problem number three would be, well,

8:40

those people, do they have other

8:42

problems within their cases that

8:44

would prevent them from getting green cards? Maybe

8:46

they broke other laws while they were here

8:48

because they were here without status. Maybe they

8:50

use fake IDs or other things like that.

8:53

So on a case by case, it's not

8:55

going to guarantee that everybody could

8:58

get those green cards. He would say a

9:00

lot of them could, but they're

9:02

going to have to wait long amounts of processing

9:04

time and they're going to have to hope that

9:06

Biden gets reelected. I'm wondering

9:08

what are the reasons that you could

9:11

give in that situation for wanting a

9:13

green card? I mean, is it that

9:15

you fled persecution or is it something

9:17

different? No, no, no. The

9:19

only reason you have to give is I'm married to

9:21

a U.S. citizen. That's it. That's

9:24

enough. But the problem is you can't give that

9:26

reason right now if you've crossed the border illegally.

9:29

If Biden stays in office, then let's say what,

9:31

90 percent of the one

9:33

million people will get green cards. Green cards,

9:35

eventually. Correct. That is correct.

9:37

Even when they ever get around to doing both

9:39

cases. But yes, correct. Why is

9:41

Biden issuing this order now when

9:44

he's been trying to show he's

9:46

tough on illegal immigration? Just

9:49

on June 4th, he effectively halted

9:51

asylum claims at the southern border.

9:54

The idea is this would be

9:57

the equivalent of taking the child's

9:59

aspirin. and putting it in some sort

10:01

of fruit juice or something. And

10:03

that this would allow it to be

10:05

able to be swallowed. What was being

10:07

done in the border in regards to

10:09

asylum was also sort of saying, but

10:11

look, at the same time, I'm doing

10:13

everything I can to help people

10:16

who are in the immigrant rights community and

10:19

in the immigration world to try

10:21

to show that I'm compassionate for

10:23

people, et cetera, et cetera, and

10:25

maybe try to take some

10:27

of the votes for people who are the

10:29

U.S. citizens in these relationships and try

10:32

to, you know, get votes from those people and

10:34

their families and anybody else. I don't know. But

10:37

I think that's sort of the

10:39

understanding of why this is being

10:41

done now. And what

10:43

would a cause for states

10:46

to challenge be, states or

10:48

counties or cities? Sure. So

10:51

I think what you're going to

10:53

see is they're going to argue

10:56

that the parole program is supposed

10:58

to be an individual case-by-case determination

11:00

in a humanitarian circumstance. And anytime

11:02

you make these programmatic parole decisions

11:05

that are not case-by-case, but that

11:07

are writ large applying to categories

11:09

of people, you can't do that.

11:12

And so that would be

11:14

why it would be illegal.

11:17

And also that Congress specifically

11:19

wrote these barriers

11:21

to prevent people

11:23

who cross illegally

11:26

from accessing green cards, but that

11:28

this wasn't a reason to give

11:30

up parole. A parole would be

11:32

for a reason that's idiosyncratic and

11:34

unique to a specific person's case

11:36

because of something else that popped

11:38

up. But the statute is literally

11:40

working the way it's intended, which

11:43

is to punish people who cross

11:45

the border illegally from being able

11:47

to benefit from that, and that

11:49

this would actually then subvert the

11:52

way that the statutory scheme is supposed

11:54

to work. Now, the question is, will

11:56

the states have standing to make those

11:58

claims, and so they'll have to do

12:00

that. show that they're being damaged in

12:02

some way through this program. And

12:04

we'll have to see what arguments

12:07

they can make for that, for

12:09

how the states themselves are being

12:11

damaged by the giving of green

12:13

cards in these situations. Okay, stay

12:15

with me, Leon. Coming up next

12:17

on the Bloomberg Law Show, we'll

12:19

discuss those lawsuits against Biden's executive

12:22

action, effectively ending asylum at the

12:24

southern border. Also, the Supreme

12:26

Court's decision on immigration. I'm June

12:28

Grosso, and you're listening to Bloomberg.

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APY. APY can change at any

13:50

time. President

13:54

Joe Biden is expected to

13:56

announce another executive action on

13:58

immigration that would give undocumented

14:00

immigrants who are married to

14:02

U.S. citizens a path to

14:04

citizenship. This as Biden's last

14:06

executive action of June 4th,

14:08

which effectively halted asylum claims

14:10

at the southern border, is

14:12

being challenged in court by

14:14

a coalition of immigrant advocacy

14:16

groups. The lawsuit filed

14:18

last week is the first test of

14:21

the legality of Biden's sweeping crackdown on

14:23

the border. I've been talking to immigration

14:25

law expert Leon Fresco of Holland &

14:28

Knight. It took a while for

14:30

the ACLU to file a lawsuit against the executive

14:32

order. We thought it was going to happen right

14:35

away. They filed it on

14:37

June 12th in the D.C. District Court.

14:40

I think what happened was they were trying

14:42

to figure out, first of all, what venue

14:44

to file it in. And secondly, it

14:46

wasn't just a Biden-era announcement. They

14:49

needed to actually sue once

14:51

the rule was published. And so

14:53

that delayed the lawsuit a little

14:55

bit because they needed to actually

14:57

publish the rule itself so that

14:59

they could sue on the published rule, not

15:02

just the press release. And

15:04

so that rule was published

15:06

on June 7th. And

15:08

so they took the published rule on June

15:10

7th and they filed the lawsuit on June

15:12

12th. So yeah, it wasn't the normal immediate

15:15

speedy lawsuit that they do the same

15:18

day, but they did file it five

15:20

days after they could file it. So

15:22

they're saying that it's the same as

15:24

what happened with former President Trump and

15:27

that this is against the asylum laws?

15:29

Correct. What they're basically saying is that

15:32

the asylum rule that Biden

15:34

has passed or that he

15:37

promulgated the ban basically violates

15:39

the Immigration and Nationality Act, because

15:41

what they're saying is that

15:43

the statute is very clear in

15:46

saying that you can apply for asylum,

15:49

even if you cross in between

15:51

the ports of entry illegally, and

15:54

that any ban that you are putting in

15:56

for that purpose isn't permitted

15:58

because the bank. First

16:00

of all, it's a ban on entry.

16:02

It isn't a ban on people who

16:04

already entered. So it can't be used

16:07

as a ban on asylum. But also

16:09

that the ban law, which was put

16:11

in in the 50s, was before the

16:13

asylum law. So the asylum law, which

16:15

was put in in the 80s that

16:18

had this clearly contemplated that you

16:20

could cross it between the ports of

16:22

entry, but that you couldn't ban this.

16:25

That would be the whole point of it. And

16:27

so those arguments were previously successful in

16:29

the Ninth Circuit. And so

16:31

the question is, will they be successful

16:33

here in the DC Circuit? I'm

16:35

surprised that they didn't file in the Ninth Circuit

16:38

where they were successful before and where there's a

16:40

precedent. I think the

16:42

reason they filed it in

16:44

the DC Circuit is because

16:47

they believe that this

16:49

is actually a challenge to

16:51

the expedited removal statute now

16:54

because of the way the Biden

16:56

administration geared the statute. They

16:58

wrote it in a way that basically forced

17:00

the challenge to have to be in the

17:02

DC District. Because what happens

17:05

is that if

17:07

you're challenging a change to

17:09

the expedited removal regime, as

17:11

opposed to just the 212 F ban,

17:13

there's a statute that says that has to be

17:16

done in the DC court. And

17:18

I think this is another reason this

17:20

lawsuit was delayed, is because they realized

17:22

that the way the Biden administration crafted

17:24

it, they took it out of the

17:26

jurisdiction of the Ninth Circuit and put

17:28

it in the jurisdiction of the DC

17:30

District Court and then ultimately the DC

17:32

Circuit. A lot of immigration

17:34

law disputes happening, Leon. And

17:37

last week, the Supreme Court sided

17:39

with the federal government in a

17:41

deportation notice dispute. Tell

17:44

us about that. So in that

17:46

case, that's a case last week

17:48

called Compost Chavez versus

17:50

Garland. And so this is

17:52

literally the third Supreme Court

17:54

case in the last three years

17:57

that has to do with this issue of... what

18:00

the notice you give to immigrants is

18:02

when you place them in deportation proceedings

18:05

and whether it's proper or not, and how do

18:07

you fix that. And this

18:09

starts with the process of when

18:11

you enter America illegally, you immediately

18:14

get a piece of paper from the government,

18:16

if the government finds you, of course, call

18:18

the notice to appear, and that

18:21

notice is supposed to have the

18:23

time and the date and the

18:25

location of your proceeding.

18:28

So what the first two

18:31

cases said is if you

18:33

don't have that, the court

18:35

doesn't have jurisdiction over your

18:37

case, and the

18:39

court doesn't start building toward this

18:41

stopping of how long your case

18:43

has been pending, because your case

18:45

wouldn't have been pending because you

18:47

were not served properly with a

18:49

notice that had the time and

18:51

the date. So in

18:53

this third instance, we weren't debating

18:56

this, but instead the case was

18:58

about, well, what happens if you get

19:00

one of these notices that at first

19:02

doesn't have the time and the date,

19:04

but then you get a

19:06

notice, and that's not disputed, you

19:08

actually do get a notice that

19:10

says, hey, the time and the

19:12

date of your proceeding is, let's

19:14

say, March 15th, 2 p.m. Chicago

19:16

Immigration Court, you know, 111 Jones

19:18

Street. And

19:20

then what happens if you don't show up to that hearing?

19:23

Can you say, well, I wasn't given the right

19:25

notice in the first instance, so immigration

19:28

can never fix this ever again. They

19:30

have to serve me with the right

19:32

notice again, but personally, they

19:34

have to come give me this

19:36

personal correct piece of paper, or can

19:38

they just give you a hearing notice?

19:41

And so what, oddly enough, this

19:43

decision says, and it's a 5-4

19:46

decision, and Gorsuch actually goes over

19:48

to the side of the liberal

19:50

justices, but it's not enough because

19:53

Alito, Roberts, Thomas, Kavanaugh, and Barrett,

19:55

for the 5, they say that

19:57

even though you could go to this

20:00

hearing if you showed up and get

20:02

it dismissed by saying that

20:04

the notice was wrong, you can't just

20:07

not show up. If you

20:09

don't show up, you can be ordered

20:11

removed and there's no way to fix

20:13

it. So the fact that you got

20:15

a bad notice up front doesn't

20:17

give you a right not to show up

20:19

to the hearing at all if you got

20:21

a notice telling you you needed to show

20:24

up to the hearing. That the government could

20:26

still deport you for not showing up to

20:28

the hearing because if you want

20:30

to make the argument that you got a bad

20:32

notice, you still have to show up and do

20:35

it. You can't just not show up. And

20:37

I think this was probably more

20:39

a process-oriented decision than a legal decision because

20:41

I don't see how you could square this

20:44

precedent with the first two decisions. But I

20:46

think they just didn't want people to take

20:48

matters in their own hands and just say,

20:50

well, I don't have to show up and

20:53

I never have to show up and I

20:55

never have to be accountable to the immigration

20:57

system. So they said, no, you have to

20:59

be accountable. You have to show up. And

21:02

if you want to make arguments then about

21:04

your notice being defective, go ahead and do

21:06

it then. But you can't just refuse to

21:08

show up. Samuel Alito, who

21:11

wrote the majority opinion, said that

21:13

it blocked immigrants from seeking to

21:15

challenge removal orders, quote, in perpetuity

21:17

based on arguments they could have

21:19

raised in a hearing that they

21:22

chose to skip. Is

21:24

it that they chose to skip the hearing or

21:26

they didn't know about the hearing? They didn't get

21:28

the notice. But this

21:30

is what's complicated. It's always

21:33

complicated with immigration laws. So here's the

21:35

point. They did get a notice and

21:37

in order to trigger the in absentia

21:39

removal provision of the statute, you have

21:41

to show that you got a notice.

21:44

But what they're saying is that that

21:46

notice that you have to get to

21:48

trigger the in absentia is not the

21:50

same notice you have to get to

21:53

trigger the entire removal proceeding. So this

21:55

is what they said. So they said,

21:57

as long as you get any notice,

21:59

that clearly shows that

22:01

you were told you have a hearing

22:04

on March 5th, 2024 at

22:06

11 a.m. at the U.S. immigration court

22:08

in Chicago, 111 Jones Street. If

22:11

you got that notice, you've got to

22:13

show up. It doesn't matter that you

22:15

didn't get the correct notice to appear

22:17

that's required by statute that has all

22:19

the information. That's the notice you need

22:21

for the court to have jurisdiction over

22:23

your case. So if you didn't get

22:26

that, you can show up at your

22:28

hearing and say, look, you've got to

22:30

dismiss my removal proceedings until I get

22:32

the right notice. You

22:34

have that argument and you will win

22:36

that argument. But what Alito is saying

22:38

is you can't just not show up

22:41

because the statute that allows the U.S.

22:43

to deport you when you don't show

22:46

up doesn't require this notice. It

22:49

just requires any notice. And

22:51

so if you got a notice that gave you a

22:53

time and a date, too bad, you lose. One

22:56

of the illegal immigrants in

22:58

the case before the Supreme Court said

23:01

he has two children who were born

23:03

in the United States and they would

23:05

face exceptional hardship if he were deported.

23:09

I'm just wondering, as far as

23:11

immigrants who have children born here,

23:14

does that help their case against deportation? So

23:16

it depends again. So again,

23:18

more of the it depends. There

23:20

is a provision that allows

23:22

you, if you've been here 10 years

23:26

and you have U.S. citizen children,

23:29

that you can say what's called

23:31

cancellation of removal, meaning you can

23:33

ask the government to take sympathy

23:35

for you and give you an

23:37

administrative relief called cancellation of removal

23:39

that allows you to say if

23:41

you can show up, here's the

23:43

key, exceptional and unusual hardship to

23:46

one of those U.S. citizen children.

23:48

So, for instance, maybe one of

23:50

those children has some disease that

23:52

can only be treated in the

23:54

U.S., something of that nature. And

23:57

you're their breadwinner and you can't, if you go

23:59

to that home country, A, you're not going to

24:01

be able to make money to pay for the

24:03

treatment, and B, that treatment's not available in that

24:05

country. And so that's that

24:07

kind of argument you can make, but

24:10

you can't make it if you don't show up

24:12

to the hearing. So for somebody who wanted to

24:14

make that argument, if they didn't show up to

24:16

the hearing, what Alito is saying is too bad.

24:18

You've lost now. There's no way you're going to

24:21

be able to revive your case to make this

24:23

argument when you didn't show up to the hearing.

24:27

Leon, what do you think of the reasoning

24:29

of the majority in

24:31

this decision? Well,

24:34

the irony is that this is

24:36

kind of a bungled decision in the sense

24:38

that what they're saying

24:40

is, even if the court

24:43

in the end doesn't have jurisdiction to

24:45

hear your case, and you would

24:47

have been able to make that argument, you

24:49

still can't skip the court proceeding. I don't

24:52

know of an analogous case ever like this,

24:54

where the court is saying, and this

24:56

is why Justice Gorsuch didn't go for

24:58

it, that a court can deport you

25:01

in a hearing that it theoretically didn't

25:03

have jurisdiction to even have the ability

25:06

to have the hearing. But

25:08

this is what they decided, and I

25:11

think this is a bad fact, bad

25:13

law, good fact, good law type situation,

25:15

where I think five justices

25:17

of the Supreme Court, and especially

25:19

Justice Roberts, is a very swing

25:21

vote, and usually tries to do

25:23

something practical in a lot of

25:25

these cases. Just thought, I

25:28

don't think it's practical to allow a

25:30

regime that just allows people to skip

25:32

whenever they want immigration court. And

25:35

I think that just couldn't settle enough for

25:37

Justice Roberts, and I think that's why they

25:39

put in this decision. Always

25:41

a pleasure to have you on, Leon. Thanks so much. That's

25:44

Leon Fresco, a partner at Holland & Knight. Coming

25:47

up next on the Bloomberg Law Show, what

25:50

the Supreme Court's ruling on bump

25:52

stocks means for gun regulation. I

26:00

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earn APY. APY can change at

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any time. A

27:15

sharply divided Supreme Court threw out

27:18

the federal ban on bump stocks.

27:20

The rapid fire gun accessory used

27:22

in the deadliest mass shooting in

27:24

modern US history, where a

27:26

gunman fired more than 1,000 rounds into a Las Vegas

27:29

crowd in 11 minutes, killing

27:33

60 people in 2017. In

27:36

a 6-3 decision down ideological

27:39

lines, the Court's conservatives said

27:41

regulators exceeded their power by

27:43

outlining the rapid fire devices.

27:46

In light of that decision, Senate Majority

27:49

Leader Chuck Schumer said the Senate will

27:51

vote this week on restoring a ban

27:53

on bump stocks. By undoing

27:56

this most common sense safety

27:58

ban on deadly. bump

28:00

stocks. This MAGA Supreme Court

28:02

has shown the American people

28:04

how dangerously to the far

28:06

right they have gone. Joining

28:10

me is Joseph Blocher, a professor at Duke

28:12

Law School. Joseph, this case

28:14

isn't about the Second Amendment. Explain

28:16

what the issue is here. This

28:19

is not a case about whether the

28:21

government can prohibit bump stocks. That was

28:23

not the question before the court. It

28:26

was not a Second Amendment argument, not

28:28

a constitutional argument. The question is whether

28:30

the ATF can, under the existing statute,

28:33

treat bump stocks like machine guns. The

28:35

current federal law has a lot of

28:37

restrictions that apply to machine guns, and

28:39

it defines machine guns as a weapon

28:42

that can automatically fire more than one

28:44

shot without manual reloading by, and this

28:46

is the key phrase, a

28:48

single function of the trigger. And

28:50

what bump stocks do is essentially

28:52

take a semi-automatic weapon, that is

28:55

one that fires a single

28:57

bullet with each separate pull of the

28:59

trigger and makes it function like a

29:02

machine gun, that is an automatic weapon, one where you

29:04

hold down the trigger and bullet continue to go. And

29:06

the way a bump stock does that

29:08

is it harnesses the recoil of the

29:10

weapon, essentially to bump it, that is

29:13

the weapon or the trigger, against the

29:15

finger of the shooter so quickly that

29:17

in effect a rifle outfitted with a bump

29:19

stock can shoot 400 or 800 rounds a minute, which looks

29:24

like a machine gun and sounds like a machine

29:26

gun. If you've seen or heard the footage from

29:28

the Las Vegas shooting, for example, that involved a

29:30

bump stock, it sounds like what most people imagine

29:32

a machine gun to be like. So this case

29:34

is really about can bump stocks be treated like

29:36

machine guns under the existing statute.

29:39

That's really, really important. And

29:41

how did Justice Clarence Thomas come

29:43

to his decision that, quote, a

29:45

bump stock does not convert a

29:48

semi-automatic rifle into a machine gun

29:50

any more than a shooter where

29:52

the lightning fast trigger finger does?

29:55

It's a really interesting opinion in

29:58

that Justice Thomas is using using

30:00

images from an amicus brief to

30:02

illustrate in some detail how a

30:05

bump stock works. And he's really focused on

30:08

the mode of action by which the

30:10

trigger activates the firing mechanism. And the

30:13

basic takeaway from his opinion, I think,

30:15

is that the trigger has to be

30:17

reset each time, and the bump stock

30:19

itself is really just the technological equivalent

30:22

of a person with a light and

30:24

fast trigger finger. Like the trigger itself

30:26

has to be depressed repeatedly. And so

30:29

on his reading, that means that that's

30:31

more than a single function of the

30:33

trigger, and therefore this can't be a

30:35

machine gun. I think the difference between

30:38

his opinion and Justice Sotomayor's dissent, capture

30:40

it in a sentence, is Justice

30:43

Thomas is focused on things from the

30:45

perspective of the gun, and

30:47

Justice Sotomayor is focused on the action of

30:49

the shooter, the perspective of the shooter. And

30:51

she points out a single initial pull of

30:53

the trigger initiates the firing sequence, and then

30:56

as long as you hold your finger in

30:58

place and keep enough pressure on the gun,

31:00

it continues to fire without you having to

31:02

do anything else. And so for her, that's

31:05

a single function. In a nutshell, I think

31:07

that's the difference between how they're looking at

31:09

this case. Is what Thomas says technically correct?

31:11

Yeah. I mean, I don't

31:13

think that there's anything in the majority opinion

31:16

that I see that's technically wrong. It's

31:18

just a question of how you frame the

31:20

inquiry here, right? Like what is the question

31:22

one needs to ask to figure out whether

31:24

a gun automatically fires more than one shot

31:27

by a single function of the trigger. But

31:29

the diagrams that he shows as far as

31:31

I can tell are entirely accurate. It's just

31:33

a question of is that the right way

31:35

to understand what the question is? And

31:37

again, Justice Sotomayor's point is it is equally

31:39

accurate to say that with a single pull

31:43

of the trigger, it would be focused on the

31:45

finger itself, the weapon will fire like

31:47

a machine gun. And that's why she

31:49

says in the opinion, I think I got

31:51

this quote right. When I see

31:53

a bird that walks like a duck, swims like

31:55

a duck and quacks like a duck, I call

31:58

that bird a duck. And, you know, over here

32:00

she says these guns. a fire-like machine gun, and

32:02

therefore the ATF can choose to call them that.

32:04

And I should say the ATF rule here was

32:07

adopted in 2018 during

32:09

the Trump administration in the aftermath of the

32:11

Las Vegas shooting. There's pretty broad bipartisan support

32:13

for it at the time. So,

32:15

you know, what happens next is kind of an

32:18

open question. This is

32:20

a 6-3 decision down ideological

32:22

lines. Does it

32:24

really come down to the six

32:26

conservatives are not in favor

32:28

of restrictions on guns and

32:30

the three liberals are in favor

32:33

of restrictions on guns? And

32:35

the outcome is determined by that. I

32:37

mean, that does accurately describe the way

32:40

that the lineup has shaken

32:42

out. But I think in this case

32:44

anyway, there's almost a methodological divide between

32:46

the justices, which is even more fundamental

32:48

maybe than their views on guns. I

32:51

mean, of the justices in the majority,

32:53

based on oral argument and even based

32:55

on a pretty remarkable concurrence

32:57

that Justice Alito wrote, I think

33:00

they have a lot of sympathy for the prohibition

33:02

on bump stocks. You know, Justice Barrett seemed to

33:04

be signaling that at oral argument. Justice

33:06

Alito has this concurrence where he –

33:09

again, he agrees with Justice Thomas that

33:11

the ATF can't prohibit this, but he

33:13

also goes on to say there can

33:15

be little doubt that the Congress that

33:18

enacted this law would have not seen

33:20

any material difference between a machine gun

33:22

and a semi-automatic rifle equipped with a

33:24

bump stock. Do you read that? You

33:26

think, oh, well, he's going to vote for the government here. But

33:29

then he goes on to say, but the

33:31

statutory text is clear and we must

33:33

follow it. So I think

33:35

the methodological division here, again, to oversimplify

33:37

a little bit, is between the justices and

33:40

the majority who see this as a case

33:42

about clear text, that a single function of

33:44

a trigger cannot include the bump stock because

33:46

the trigger has to be depressed repeatedly. And

33:49

the justices in the sense disagree about that

33:51

text, but also I think believe that the

33:53

purpose of the statute is clear and should

33:55

play a role here, which is the Congress

33:57

that enacted this would have allowed. the prohibition

34:00

on bump stocks and so would have gone

34:02

the other way. So in addition to the

34:04

gun thing, I think there's a methodological dispute

34:06

here as well. Is

34:08

it also about the power

34:10

of the ATF, the federal

34:12

agency here, to enact and

34:14

interpret regulations, which is really

34:16

almost a theme this

34:19

term at the court. We're going to

34:21

see a lot of cases about agency

34:23

authority. Yet one of the

34:25

interesting dogs that doesn't bark in

34:27

this case is the

34:29

status of what's called Chevron

34:31

deference. Right. So under the principle of

34:34

Chevron, which is a case which is

34:36

sort of foundational to the way the

34:38

administrative state works, courts will defer

34:40

to agencies reasonable interpretations of ambiguous

34:43

statutes. So if statutory text isn't

34:45

clear and let's say the EPA

34:47

or the APF is charged with

34:49

enforcing that statute, if they adopt

34:51

a reasonable interpretation of it, then

34:53

courts will say, okay, we'll let

34:55

that stand. And there's a separate

34:57

case before the court right now,

34:59

case called Loper-Brythe, which really presents

35:01

straightforwardly the question, should Chevron be

35:03

overruled? And for administrative law scholars,

35:05

I think that is the single

35:08

biggest question for administrative law, you

35:10

know, and I don't mean how

35:12

long, I mean, that's the basis

35:14

for how so much administrative law

35:16

and therefore agencies works.

35:18

Now this case arguably has some

35:20

ambiguous text, you know, that the

35:22

single function of the trigger text.

35:25

And so you might say, well, look, the

35:27

justice is disagree about what it means and

35:29

therefore it's ambiguous and the ATF has adopted

35:32

what might be a reasonable interpretation that is

35:34

a bump stock, you know, can constitute machine

35:36

guns. But the government below disclaims reliance on

35:38

Chevron. And so it's not even cited in

35:40

any of the opinions here, which is a

35:43

little interesting because it is an agency case.

35:45

I don't know what that signal is about what's happening in

35:47

Loper-Brythe, which we haven't received yet, but we'll see. subject

36:00

to domestic violence restraining

36:02

orders. Although in

36:05

that case, it seemed like in the

36:07

oral arguments that many

36:09

of the justices were on board with

36:12

the ban. Yeah, I

36:14

think it's very different. There's no Second

36:16

Amendment claim in this case. The methodological

36:18

questions are very different. At the oral

36:20

argument in Rossini, at least, it sounded

36:22

like most of the justices, at least,

36:24

were on board with the government's argument.

36:27

It remains to be seen how that will shake out,

36:29

there will be lots and lots of different ways that

36:32

could go. And that opinion

36:34

has been out since the first week

36:36

of November. It's a long time. So,

36:38

maybe wondering exactly how that's kind of

36:41

blintering. At this point, it's starting to feel

36:43

to me like it's going to be more

36:46

than two opinions, more than just a majority

36:48

and a dissent. But I guess hopefully we'll

36:50

be seeing soon. Well, less than two weeks

36:53

left in the term. So, we'll

36:55

see it before they go on vacation, I guess.

36:57

Now, Senate Majority Leader Chuck

37:00

Schumer says they're going to

37:02

advance legislation to ban

37:04

bump stocks. But that

37:06

seems unlikely to get enough Republican

37:08

votes in this Senate. You

37:11

know, there are state-level prohibitions. I think

37:13

somewhere between 15 and 20 states already

37:15

prohibit bump stocks. And it

37:17

may be that more states will adopt

37:19

those kinds of prohibitions now, given that

37:21

the federal regulation has been struck down.

37:24

We have certainly seen in recent years, at the

37:26

state level, a lot of action that we just

37:28

haven't seen at the federal level. And when it

37:31

comes to bump stocks, I mean, they're prohibited in

37:33

not just blue states. I mean,

37:35

Florida, Louisiana, Indiana, they all

37:38

have restrictions on bump stocks. So, maybe to see

37:40

some spread there, like with, for example, red flag

37:42

laws, which again, more than 20

37:44

states have now, including places like Florida. So,

37:47

maybe we'll see action at the state level. You

37:49

know, it's really rare that Congress

37:51

passes gun legislation. It

37:53

happened in 2020 with the Bipartisan Safer

37:55

Communities Act. But that was mostly focused

37:58

on funding, community violence interruption. and things

38:00

like that. There were a couple statutory

38:02

criminal changes, but it's very hard for

38:04

Congress to get gun legislation through. These

38:07

days to get any legislation through. Well,

38:09

and I think that's why, that's precisely why this

38:12

question of what the agencies can do is

38:14

so important. Because it's true. Like if Congress

38:16

were to pass this statute, it would be

38:18

on stronger footing. But we know that's not

38:20

realistic, because at least it's going to be

38:22

very hard. And that's precisely why the ATF

38:25

is, you know, doing things like

38:27

passing regulations saying, hey, bump stocks, which they didn't

38:29

know about when they enacted the machine gun prohibition

38:31

are functionally machine guns, we're going to treat them

38:33

the same. Like that's the idea

38:35

behind that is the agency is sort of

38:37

doing what Congress would have wanted in that

38:39

statute. It's really tough to imagine Congress

38:41

passing specifically a prohibition on

38:43

bump stocks, even though in

38:45

2018, the political wins seem to be in favor.

38:48

Schumer may advance the bill as soon

38:50

as tomorrow, so we'll find out quickly.

38:53

Thanks so much for your insights, Joseph. That's

38:56

Professor Joseph Ploaker of Duke Law

38:58

School. Supporters of the

39:00

bump stock ban include Everytown for

39:02

Gun Safety, which is backed by

39:04

Michael Bloomberg, the founder and majority

39:07

owner of Bloomberg LP, the parent

39:09

company of Bloomberg Radio. And

39:12

that's it for this edition of

39:14

the Bloomberg Law Podcast. Remember, you

39:16

can always get the latest legal

39:18

news by subscribing and listening to

39:20

the show on Apple Podcasts, Spotify,

39:23

and at bloomberg.com/podcast slash law. I'm

39:25

June Grosso, and this is Bloomberg.

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