Pod Insights Podcast Business News Network 14257 "WHATS LAW GOT TO DO WITH IT?" with Carol A. Sigmond Partner at Greenspoon Marder LLP and Steve Harper About this episode https://www.gmlaw.com/ Listen to us live on mytuner-radio, onlineradiobox, fmradiofree.com and streema.com (the simpleradio app)https://onlineradiobox.com/search?cs=us.pbnnetwork1&q=podcast%20business%20news%20network&c=ushttps://www.fmradiofree.com/search?q=podcast+business+news+networkhttps://mytuner-radio.com/search/?q=business+news+networkhttps://streema.com/radios/search/?q=podcast+business+news+network
Transcript 0:06 Speaker 00 Broadcasting from the business capital of the world. This is the Podcast Business News Network.
0:13 Speaker 00 And welcome back, everyone. I'm sure you've seen the headlines and I don't think I've ever done this before, but I'm going to randomly just read some headlines here and they all have the same theme. Supreme Court justices appear skeptical of move to end birthright citizenship. Next one, Trump lawyer struggles with Supreme Court's question about whether Native Americans, I'm just dot, dot, dot. Descendants of key figure in 1898 citizenship case hopes for the best from the US Supreme Court, dot, dot, dot. We're talking birthright. This, these headlines are within the last 24 hours. Fastly moving, lots going on here. Supreme Court involved reviewing major cases. And she's going to help us out with that.
0:58 Speaker 00 What's law got to do with it? Out of New York City, prominent attorney that's got her finger on the, on the pulse of everything, including the birthright case. Carol Sigmund joins us. What, how are you, first of all? How's it going?
1:11 Speaker 01 I'm good, Steve. How are you?
1:12 Speaker 00 Very well, very well. Trying to put the pieces together with a major situation here in terms of birthright citizenship. What exactly is at stake?
1:25 Speaker 01 In, in the narrowest sense, the status of the president's executive order 14, I think it's 14600, in which he declared that as of a certain date, I believe it was February 25, 2025, any child born of a woman who was in the country undocumented would not get American citizenship. Uh, there were immediate challenges all over the country.
1:49 Speaker 01 And a number of district courts entered national or, yeah, national injunctions against the birthright citizenship executive order. The administration took these up in a case called Trump v. Casa on the emergency docket and had the national injunctions vacated for procedural reasons, not substantive reasons. The case then went back to a number of district courts and the district court in New Hampshire, which, which is the court of origin for the case Trump v. Barbara, which was argued on Wednesday. That court went through the exercise of establishing a class and entering a national injunction
2:34 Speaker 01 based on a class of people, which is what the Supreme Court said they wanted in the Casa, in the Casa decision. This brings about a very interesting little sidelight that we should all be aware of. It appears that the current Supreme Court is not happy with district courts jumping the gun and entering big orders without taking testimony and holding hearings and developing a complete record. The Supreme Court doesn't want these cases coming to them without a fulsome record. So they have pushed back on a lot of these shortcuts that were tried in the beginning
3:17 Speaker 01 in 2025 in, in opposition to the executive orders, insisting on fully developed records, which are now coming before them. And as we saw in the I E E P A case, they are ruling, you know, against the administration when they think the law is as they're, they're calling it as they see it. And in some instances, the administration is losing. But it's, it, the Supreme Court clearly wants fully developed records. So that's, that's kind of an aside for everybody to understand. So you can put in context what was happening with some of these cases in 2025 and understand that these decisions were not substantive, they were procedural and they had to do with the fact that the Supreme Court really wants a record.
4:00 Speaker 00 It's from what I'm, I'm seeing, hearing that it looks like some of the justices are very skeptical of the, of the administration's arguments. What, for you, what, what really stands out?
4:13 Speaker 01 One thing that nobody's talking about. I listened to that entire argument and I re-listened to it in, in the audio recording. Not one justice even mentions the executive order. They, all of the discussion was the Immigration Act and, uh, uh, Wong, the United States.
4:35 Speaker 01 And the Fourteenth Amendment of the Constitution, no discussion of the executive order. Except in passing and without direct reference to it, the closest that anyone got to that issue was toward the end of the oral argument in the now somewhat famous exchange between Justice Kavanaugh and Cecilia Wang, the attorney for the ACLU for Barbara, when he raises with her, couldn't we just decide this on the statute and the narrowest decision? And she urged the view that the decision should cover the meaning of the Fourteenth Amendment, but said she'll take a win any way she can get it.
5:16 Speaker 00 Hmm.
5:16 Speaker 01 It's the only person that kind of was alluding to it, but never mentioned it, suggesting to me that it's without any dispute, that the Supreme Court does not see the president as having any authority to go contrary to whatever Congress has determined as to birthright citizenship.
5:36 Speaker 00 Now, you're used to these arguments. You're used to these arguments. This is like the elephant in the room. Why would it not even, in passing, be mentioned?
5:48 Speaker 01 That's interesting. I think, remember, the justices sometimes will engage in informal discussions through their chambers and in their meetings about these cases, usually after argument, but occasionally, you know, there'll be some exchange of information before. My sense is that nobody thinks the president had the authority to issue the executive order, that his executive orders can only be consistent with the Immigration Act or the Constitution, and if they're not, they have no standing.
6:26 Speaker 00 Hmm.
6:27 Speaker 01 They have no force in effect. And I think that's why they jumped immediately to the statute and the Constitution, because the executive order, the president has no independent authority. He only can execute the Constitution or the laws as Congress has written them.
6:43 Speaker 00 Yeah, I mean, the Fourteenth Amendment to the Constitution, that has long stood.
6:50 Speaker 01 Yes.
6:51 Speaker 00 And maybe fundamentally go back to that. How is, how does that define citizenship?
6:58 Speaker 01 It says that anyone born in the in the United States is a citizen. If you're subject, and it's the term is subject to the jurisdiction. That's the magic phrase. And it's the basis on which two groups have consistently been denied citizenship. Children of diplomats who are by treaty and law not subject to the laws of the United States. Their children born in the United States do not become citizens of the United States. They are citizens of their home country, their parents' home country. And in theory, if we had occupying forces, their children would not be citizens. Because they would hold their allegiance to the occupying force.
7:42 Speaker 01 Uh, there, there was a debate about American Indians because at one time they were considered citizens of a separate nation, not subject to the jurisdiction. That was changed by act of Congress. Although Justice Gorsuch raised that question in oral argument with the, the Solicitor General, Mr. Sauer, uh, pointing out, asking him point blank. And Sauer finally conceded that American Indians now have birthright American citizenship by act of Congress.
8:13 Speaker 00 Hmm.
8:16 Speaker 01 What's interesting about the, the, the whole argument is not that there's a lot of support for the president's executive order. It's that the justices clearly see that this is issue is going to recur. And they are beginning to try to test the limits. Because at least in theory, the administration could go to Congress and say, we want an act of Congress that would limit birthright citizenship in some respect. I think they could get one narrow statute that could pass constitutional muster, but would have to be carefully done. This so-called tourism birthism, the birth, the people who come here as tourists to have
8:59 Speaker 01 their baby and get an American citizenship.
9:02 Speaker 00 Hmm.
9:02 Speaker 01 I think right now they get automatic citizenship. I wouldn't change that. What I would do is I would do with them what has happened with some other people. Like children of American citizens that are born outside the United States, maybe with one parent who is. From another country and they are registered as dual citizens. If they do not take certain steps to perfect their American citizenship, they can lose it. Um, and I think that it could be that these children born under these circumstances could get birthright citizenship, but it could be subject to loss. And that probably is within Congress's authority because there is an act of fraud in their obtaining their citizenship. It's, I don't know how the court would deal with it, but I think that would be a very
9:48 Speaker 01 tough decision for the court. And it, that kind of issue that they were trying to explore, what are the limits?
9:55 Speaker 00 The phrase is so central, subject to the jurisdiction.
9:59 Speaker 01 Yes.
10:00 Speaker 00 That seems to the layperson somewhat vague. And do you feel that that is where this is raising some flags?
10:09 Speaker 01 That, I don't think that that clause is vague because unless you are a diplomat, if you're here legally or unlawfully, however you are here, you commit a crime, you're subject to the laws of the United States. You, you do certain acts, the laws of the United States apply you simply because you're here, both adverse, both in an adverse sense and possibly in a supportive sense. Um, if, if you're an undocumented worker and you're injured on a job, you have worker compensation rights. You are subject to the jurisdiction. That's why I think, I think that this argument is a little bit artificial.
10:45 Speaker 00 Okay.
10:45 Speaker 01 Because everyone except diplomats is subject to the, who's physically in the country is subject to the laws of the country. And I think that's what Congress intended. I think that was the original intent of the framers in the 14th amendment. And that's where this case was very interesting. You had originalists and textualists like Amy, Amy Judge Barrett, who was pushing very hard, what was the original intent? You had textualists like Judge Gorsuch looking at, you know, how do we parse this out and how far do we go back? Uh, the Solicitor General said they were not looking to go back the four.
11:28 Speaker 01 February twenty five of twenty twenty five, but didn't rule it out. So think about this. Suppose your second generation, just pretend you're second generation. One of your parents was born to people who maybe weren't citizens at the time of their birth or came here, you know, before we had immigration laws. Could they go back and reverse the citizenship of your parent and therefore yours?
11:56 Speaker 00 Well, that's one of the headlines I read before. Eighteen ninety eight, the sentence of a key figure back then. And that's, you know, they're hoping for the best. So, well, let's look at that. That's one, one aspect, but if the court rules in favor of restricting birthright citizenship, let's look at what could happen. The immediate legal, the, the consequences socially, what, you know, broadly, what could happen here?
12:21 Speaker 01 Well, you would wind up with an underclass, a subclass of people who were in the country, but not citizens. What would their status be? What would their right to school be? What would their right to call the police be? What would their right to, um, not so much social services? Because it's mostly based on being documented.
12:41 Speaker 00 Sure.
12:41 Speaker 01 But what would their right to be to public safety? Fire protection, medical, you know, emergency medical care. What happens?
12:49 Speaker 00 Wow.
12:50 Speaker 01 Do you really want a, a class of sub, sub citizens?
12:54 Speaker 00 Could you imagine just, just saying, just now, I'm getting a picture. I, my mind is very visual, getting a picture that, let's say that was the case. And on, and any law enforcement individual, you give them your name. They got you now. And if there's multiple people with the same name, give them one other teeny piece of information, a town. Blah, blah, blah, blah, on their screen, they got everything. So imagine if there was a yellow dot next to those individuals. And let's say there was an emergency situation and paramedics responded. And they take a look at, oh, this one's got a yellow dot. Get back in the ambulance and they drive away.
13:33 Speaker 01 That's not what Americans want. And it's, we don't, many of us think that's not what the framers of the fourteenth amendment intended, that they intended not to have second class citizens.
13:44 Speaker 00 Hmm.
13:45 Speaker 01 For anyone.
13:46 Speaker 00 Wow.
13:46 Speaker 01 That's, that's one of the huge problems. The second problem is the one I just mentioned. Who gets, who, who loses their citizenship?
13:55 Speaker 00 Yeah.
13:56 Speaker 01 So that's a second major problem. And then you have the one that was that Justice Jackson pointed out, what are you going to do? Bring lawyers into the delivery room? You're going to take depositions of of women as they delivered a baby? I mean, this isn't very practical. That's why I think the more pragmatic approach is if there's a question of birth, birth tourist, you know, noted on the on the birth certificate and allow that to become the basis for ousting citizenship under whatever statutory scheme is developed. But I think that's the only group it could possibly happen to. And even then, I think there could be
14:37 Speaker 01 real resistance to creating a subclass of people who don't have rights.
14:43 Speaker 00 Wow. What's your what's your legal intuition telling you, Carol?
14:49 Speaker 01 That there's that there's a debate going on within the court on a couple of issues. The three ladies, justices Sotomayor, Kagan, and Jackson are going to read, are going to decide, want to decide this case on the Fourteenth Amendment. They want to say, subject to the jurisdiction of the United States means you're here and you're subject to the laws. End of discussion. And they want to decide this case based on the Fourteenth Amendment. I can't, I don't have a good feel for Judge Justice Barrett. She was asking a lot of questions. But she is an originalist. And if she thinks that's the intent of of the framers of the Fourteenth Amendment, she may agree with the other three ladies.
15:32 Speaker 01 Justice Kavanaugh is toying with a narrow decision based on on the fact that the government concedes that Wong is correctly decided. That's the 1898 decision you've been referencing.
15:46 Speaker 00 Yep.
15:46 Speaker 01 In which the gentleman whose parents were here without documentation at a time when Chinese immigration was disfavored, was not
15:58 Speaker 01 Allowed to return to the United States after visiting China on the grounds that he wasn't a US citizen, he sued and won. He was a US citizen because he was here and subject to the laws. So Sauer was not asking to have Wong overruled, which Kavanaugh pointed out. I think correctly was a logical, I believe it was Kavanaugh, could have been Gorsuch, a logical inconsistency in the decision, in the government's position. But either way, you could decide this case based on Wong's controlling precedent and the Immigration Act statute, which parallels the 14th Amendment in HAC, third, third, third
16:42 Speaker 01 time, it's exactly the same words. You could decide it on that narrow grounds. It seems to me that that's what Justice Kavanaugh was considering. I don't, again, know where Justice Gorsuch is. He is a person who does not like to decide what he doesn't have to decide, which is a good judicial practice. So he could be attracted to that, although he himself pointed out, it's not really possible to decide what the statute means without deciding what the Constitution means, which would take him over to the position of what I think may be the four ladies. Justice Roberts didn't say very much, but he did make the comment, the Constitution is what it is, in effect.
17:27 Speaker 01 It says what it says. I can see, I could see seven two, I could even see nine zero against the administration. But I think that there will be possibly as many as four decisions. You're gonna have at least three justices, Sotomayor, Kagan, and Jackson, saying, this is clear under the Constitution. Barrett and Gorsuch could join that, it could be the basis of the decision, or they could join a narrower opinion on the statute, or they could split and go different ways. I think the chief will probably try to control this decision himself. He's going to try to rate as narrow a decision as he wants, as he can.
18:11 Speaker 01 And that might be the right thing to do because he may want to leave Congress with the option to examine some of the seams that may still be left, the one that I mentioned. The birth tourism, which, which could be arguably fraud and might be a basis for ousting. Maybe not a basis for denying, but maybe a basis for ousting.
18:33 Speaker 00 I still have the visual of the deposition in the maternity room before and or after birth. I mean, you know, it is, it's funny, but it's not because
18:43 Speaker 01 It's not funny.
18:44 Speaker 00 It, it could be real. I think when you think about it, you know, the, uh, the fraternity police come running in and you have to, wow.
18:51 Speaker 01 Uh, this, it's, it's sad. I mean, it's sad that we are having this kind of discussion in this country and that we are willing to take these kinds of risks of, you know, a, an underclass or a subclass of people who don't have rights. That is so contrary to American culture, which is basically premised on a, on a government of laws that apply to everyone.
19:19 Speaker 00 I want to ask you this question, and we, we had other topics to get to, the ABA. We're, we're not going to have time for that. Do you think that questioning the 14th amendment at this point in our history? Oh, 250 years coming up. Do you feel that it is making us, this is a personal question, and I don't do politics. You know, we, we, we try, we stay away from politics here. It's just reporting the facts and what's good.
19:49 Speaker 01 The law.
19:49 Speaker 00 Exactly. Thank you. Do you think this is weakening our nation in the eyes of other countries?
19:58 Speaker 01 I think we have other problems with our allies and our sort of not allies internationally. I don't think this particular case may be having an impact in Latin America and the way the Latin Americans view us. Worldwide, I'm not sure.
20:15 Speaker 00 Hmm.
20:16 Speaker 01 But that said, let me, let me, let me preface that with something. Do you know who the architect of this argument is?
20:25 Speaker 00 Say that the architects of
20:28 Speaker 01 The architect of the argument against birthright citizenship for ill for undocumented people?
20:34 Speaker 00 I didn't hear the word argument, and I'm going to say, no, who?
20:37 Speaker 01 John Eastman. Do we know who John Eastman is?
20:39 Speaker 00 There's, there's a name. Haven't heard that in a while. Please explain.
20:42 Speaker 01 John Eastman was one of the architects of the, um, arguments against the election of President Biden in 2020. And he was part of the group that was working toward the, the questioned, uh, electors. He has, he has, there is a decision in California, uh, a recommendation by a three judge panel to disbar him. That is on appeal to the California Supreme Court. And I believe that he, if memory serves me, he has acknowledged certain other events in Georgia and Michigan, but
21:22 Speaker 01 I'm a little fuzzy on exactly what he's done. But his legal reasoning is, in an academic world, interesting. From an academic point of view, he is basically an academic. And the dangerous, uh, issue for, for John Eastman is when he takes his theoretical, you know, uh, arguments and tries to impose them in the real world. I mean, that was his, that was the false elector scheme, was based on a very sort of interesting reading of, of the, of the Electoral Act. Not one that had any, any real legs within the, within the practical world.
22:07 Speaker 01 And in a sense, this is the same thing. It's, it's, it's an interesting doctrinal dis- dispute and something that law students would argue to practice arguing and, and thinking about these issues, but as a practical matter, not really of the, you know, uh, going to be adopted as the law, partly because overturn, to, to, to rule in Eastman's, on Eastman's theory in 2026 would require overturning Wong, which is since 1898 and is very settled law. And while this Supreme Court was perfectly happy to overturn Roe on the grounds that
22:50 Speaker 01 it wasn't presidential because it was only however many years old it was, now we're talking something that's 120 plus years old.
22:58 Speaker 00 We're out of time.
22:59 Speaker 01 Generations have relied on it.
23:02 Speaker 00 Oh my gosh. You know, as soon as you said his name, like, what do I, my brain, because I'm in the media, media world, Eastman, my brain went right to Kodak, Eastman Kodak.
23:10 Speaker 01 Sorry.
23:11 Speaker 00 So I had it, I had it decipher, but now I remember him. He, this is, he has asked for a, a pardon many times, took the Fifth Amendment, like literally hundreds of times.
23:25 Speaker 01 Yes.
23:26 Speaker 00 Facts, no politics here, facts. Um, thank you for the insight today. This is, this is, you know, this is what we're worrying about. What did you pay for gas recently? I'm just saying.
23:41 Speaker 01 So truth be told, I live in New York City, so I don't own a car.
23:44 Speaker 00 I knew you were gonna say that. I knew you were gonna say that.
23:47 Speaker 01 I only pay for it indirectly in my train fare, my, my bus fares and things, but I know, I know gas prices are up and let's remember the 30 day supply that was on the water when all of this started is now landed. So there's no new supply on the water. So the metal's about to hit, the pedal's about to hit the metal. On gas prices, I'm sorry to say.
24:12 Speaker 00 Hmm, thank you for that.
24:16 Speaker 00 And the insight, it is what it is. This is what's happening around our world. That's what law has got to do with it. If you have a question, comment, we'd love to field them here. [email protected] . I have a feeling after today's conversation, we're gonna, we're gonna see something, because this is, it's a lot. We stirred the pot, I believe, in just reporting what's going on. And, uh...
24:38 Speaker 01 And, and just remember that anyone can go to the Supreme Court's website, United States Supreme Court website, and listen to the oral argument. It's on tape.
24:48 Speaker 00 Thank you. Um, and, and we're out there in the universe forever, too. After we press this button. We're live now, but it'll be around. Uh, thank you, Carol. As always, have a great weekend. We'll talk soon, okay?
25:02 Speaker 01 You too. Thank you. Bye-bye.
25:09 Speaker 00 Broadcasting from the business capital of the world, this is the Podcast Business News Network.
25:18 Speaker 02 So you see, son, good manners are very, very important. Someday, many years from now, when you're a grown up, you'll be a man. And when you are, you should be a gentleman. Do you want me to go through it one more time?
25:29 Speaker 03 Yes.
25:30 Speaker 02 Yes, please.
25:31 Speaker 03 Yes, please.
25:31 Speaker 02 Exactly. Always say please, thank you, you're welcome, and excuse me. Sit up straight. Hold doors open for ladies. If a door's shut, then knock first. Don't burp, don't swear, don't speak with your mouth full, don't reach across people's plates, keep your elbows off the table.
25:40 Speaker 03 What table?
25:41 Speaker 02 And don't interrupt. While we're at it, don't stare, don't use foul language, don't call people names, but do remember people's names. Always share your toys, play nice, and cover your mouth when you cough or sneeze. On the bus, give up your seat to anyone who has trouble standing. Bottom line, treat others the way you'd like to be treated. Got it?
25:52 Speaker 03 Got it.
25:53 Speaker 02 And stop picking your nose.
25:56 Speaker 04 Most parenting is hard to do in just two minutes. But spending just two minutes twice a day making sure they brush their teeth is easier and could help save them from a lifetime of tooth pain. For fun, two-minute videos to watch while brushing, visit twomen2x.org. That's twomen2x.org. A message from the Partnership for Healthy Males, Healthy Lives, and the Ag Council.
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