NewsConference: Will SCOTUS side with Trump over birthright citizenship stance?

[0:01] Some big cases coming up this next week from the United States Supreme Court. [0:04] Joining us is Jessica Levinson, who teaches election law at Loyola Law School. [0:08] So, Jessica, always a delight to see you. [0:10] So, this past week, the court came down with a couple of decisions, [0:14] a number that were big wins for the Trump administration on immigration, [0:18] on gun rights, on protecting corporations from liability. [0:24] Is there a possibility that the chief justice did this on person? [0:29] It was sort of strategic to set them up with the whole big wins [0:32] because there could be a big loss as early as Monday or Tuesday on birthright citizenship. [0:40] So, I suspect that birthright citizenship isn't the only big loss [0:44] that the Supreme Court is going to hand to the Trump administration next week. [0:49] We should, of course, remember that when it comes to those two cases [0:53] or three cases that you were mentioning before, [0:55] when it comes to the immigration cases, [0:57] when it comes to the case dealing with Monsanto, [1:00] those are issues of statutory interpretation. [1:03] And to the extent that people believe that the Supreme Court [1:07] is granting the president too much power, [1:09] Congress has the ability to change that. [1:12] There's nothing in those decisions that says [1:15] that the president must have that authority constitutionally. [1:19] Now, getting to next week, [1:20] I think that the Trump administration will suffer some losses. [1:23] One, the birthright citizenship case, [1:26] I think that that could be an 8-to-1 or 7-to-2 loss for the Trump administration. [1:32] We can talk about why. [1:34] And I also think the Trump administration is going to lose [1:36] on one of the big executive power cases [1:39] dealing with the ability of any president [1:42] to fire or remove the head of the Federal Reserve. [1:47] When it comes to the Federal Reserve, [1:49] I think what the court is going to say is that the four-cause standard [1:53] is actually narrower than what the president has advocated for. [2:00] So I think the two big executive power cases will probably be split. [2:04] I think they'll win the case dealing with the Fair Trade Commission [2:07] and lose the case dealing with the Federal Reserve. [2:10] Well, let's get back to birthright citizenship. [2:12] 8-to-1, that would be remarkable. [2:14] Why? [2:14] It would be, for a couple of reasons, [2:17] because I think there's two routes for the Supreme Court. [2:20] If they don't want to rule based on the Constitution, [2:23] based on our understanding of what the 14th Amendment says [2:27] and that birthright citizenship clause, [2:29] which for centuries we have understood to mean [2:32] if you're born on U.S. soil, [2:35] then the immigration status of your parents doesn't matter. [2:38] If they don't want to go that route, [2:40] then I think there's an easier route, [2:41] which is to say that Congress passed a statute [2:44] that essentially just codifies or all but copies [2:48] what the birthright citizenship clause says. [2:51] And one easy route for the court is to say [2:54] there's a separation of powers concern here. [2:57] You cannot, by executive order, [2:59] change a piece of congressional legislation. [3:03] And that's where I think you could get a lot of buy-in [3:06] across the ideological divide on the court. [3:08] Let's talk about one other issue that relates [3:11] to the counting of ballots after the election. [3:14] Now, the court could say, listen, [3:17] you can't count any ballots after election day. [3:19] Election day means election day. [3:21] Do you anticipate that decision having a major impact [3:25] on the November election in California? [3:28] So I think that that decision is going to go away [3:31] the way that you suspect it will, [3:33] which is it's a question of federal preemption. [3:36] And what the court is, of course, doing is looking [3:39] at the federal law that defines election day. [3:41] And then they're looking at whether states like California, [3:44] the case is coming out of Mississippi, [3:46] but it would obviously affect California's law, [3:48] whether states can say that there's a grace period, [3:51] meaning you have your ballot postmarked by election day, [3:55] but it isn't received until some time period after. [3:58] The real question as to how much impact [4:01] this will have on the midterms, [4:03] if the court, in fact, does say these grace periods [4:06] are invalid under federal law. [4:08] The real question, I think, is how quickly states [4:10] can ramp up their educational campaigns [4:13] of telling people, you used to think you had more time [4:16] than you do, get that ballot in early [4:18] or go to a voting center or drop your ballot off [4:22] at one of the ballot drop boxes. [4:24] The question, I think, legally for the court is, [4:27] will they call into question early voting? [4:30] And my strong suspicion is that they don't. [4:32] They say voting includes up until election day, [4:35] but not just election day. [4:37] And finally, Gavin Newsom had a bit of a problem, [4:40] a bit of a dilemma. [4:41] He tried to keep off the ballot the wealth tax [4:44] targeting billionaires for November in California, [4:47] but he was unsuccessful. [4:49] And as a result, he believes that tax [4:51] is going to be a real problem for the state revenue [4:54] in the future, which is why he's opposed to it. [4:57] But that puts him in the camp of the one percenters [5:00] who will be campaigning against this wealth tax. [5:03] That's not a good look if you want to be [5:05] the Democratic nominee for president in 2028. [5:07] And I think it puts him in the position [5:10] of having to make an argument that, unfortunately, [5:13] now is increasingly hard to make. [5:15] And that means an argument that has subtlety and nuance. [5:17] And what he has to say is, [5:19] I'm not as a policy matter [5:21] against taxing very, very wealthy high earners. [5:26] The issue here is it just doesn't make sense [5:28] for California. [5:29] And then he can say, because it's a one-time tax, [5:32] because it actually would not help [5:33] in the mid and long term. [5:36] Of course, the problem with that explanation, [5:38] I think, is that what people hear is, [5:40] oh, you're against taxing billionaires. [5:42] Why are you against taxing billionaires? [5:44] People have to listen to the second sentence [5:47] and the third sentence. [5:48] And then I think, you know, [5:49] he does have an argument to be made here [5:52] as to why this tax, [5:54] while it might bring that spike in revenue, [5:56] it's really not good long-term policy. [5:59] Jessica Levinson of Loyola Law School, [6:01] thank you very much for taking the time.