This is Bloomberg Law with June Brusso from Bloomberg Radio. The Insular Cases are a series of rulings from the nineteen hundreds establishing that people in US territories don't have the same constitutional rights as other Americans. The cases are almost universally described as racist, even by some Supreme Court justices in a concurrence. In a case last year, Justice Neil Gorstch called for the Insular cases to be overruled, describing them as shameful and based on ugly racial stereotypes.
If that's true, why shouldn't we just admit that cases were incorrectly decided? Fast forward to this Monday. Civil rights groups urged the Court to take a case involving birthright citizenship that could undo the Insular cases, but the Justices turned the case down. My guest is and Lofasso, a constitutional a professor at the West Virginia University College of Law, and tell us about this challenge brought by three Samoans
who live in Utah. So basically, the three Samoans and a nonprofit organization of saying that they're entitled to birthright citizenizenship by virtue of the fact that they were born in Samoa. After the Civil War, the Fourteenth made clear under the Citizenship Clause that anyone born in the United States is entitled to birthright citizenship and was really initially intended to make sure that former slaves were absolutely citizens. It is til to all the rights of a citizen.
Then what happened was after the Spanish American War, the United States acquired territories that overseas, and there were series of cases at the turn of the century. Some say six, some say nine, some say more than that, but in any event, a small series of cases that stated that this was not a seraily the case and that these overseas territories that were acquired specifically in the Spanish American War, the United States was allowed to govern them as colonies.
And this is what many people believe was reading the power to colonize into the United States Constitution. So they want these cases to be overturned. So it's clear that the United States doesn't have this power to colonize the fact that they are not US citizens, meaning they can't vote, they can't serve on juries or run for state or
federal office. So these insular cases, Conservative Justice Neil Gorcich and liberal Justice Sonya Soto Mayor have both expressed concern about the Insular cases remaining on the books, but neither of them dissented here. Well, there's a couple of things going on here. They may not have had the votes to overturn the precedent, so why even go there. There were also a lot of problems with this case. Samoa is very unique. It wasn't part of the original Insular cases.
This case can be decided without referring to them, so they could decide this case purely on constitutional grounds and not go to be insular cases. There is no split in the circuits on this issue either. Six courts have looked at it, all six have agreed. The second of all, when the Supreme Court takes a case, it doesn't just take it because it thinks it's an important federal issue.
There's what's a good vehicle for deciding this case. That means there aren't any extraneous issues that could prevent them from coming into a conclusion because they don't even have to look at the Insular cases to decide this. So that's why it would be considered a poor vehicle for revisiting the Insular cases. Politics are also involved here. Might
that be another reason the court didn't take this case. Currently, they're negotiatings between the United States and Samoa about how to progress preserve the Samoan way of life, which I hope I'm not mispronouncing this, but it's called fa Samoa, and so there's a lot of concern among the Samoans and the government of Samoa that a birthright citizenship might disrupt their way of life. The Samoan people right now and have not reached a consensus as to whether or
not they want to have citizenship. And there's a streamlined process for people born in Samoa to become US citizens, So that means that many Samoans might say, well, we still don't want the birthright. If an individual wants to become a U. S. Citizen, they can, It will be
very easy. And I know many of us in the United States might sing, why would anyone not want the American citizens But some people don't, so I think that's also important to respect, and that was one of the points that the brief for the Samoan government made, is like, why would we want this court by judicial fiat to impose U. S citizenship on every person born in Samoa, where right now there is not a political consensus, so it would almost be colonization in a different way by
judicial fiat saying now you are automatically U s citizens, and so there is this political dimension that perhaps the Court didn't want to wait in on. Everything I've read about the Insular cases says racist. Course, it said ugly racial stereotypes. I mean, some of the language in some of those cases is sort of astonishing. Isn't that something
that the Supreme Court should want to overrule? Yeah, it should, But we don't want the Supreme Court to overreach on an issue because even though in this case it might be a good thing, we don't want them to then feel emboldened to overreach. I mean, especially they might be gun shy after what happened last term where they didn't have to reach Row versus way at all. I mean Justice Roberts made that clears concurrence in Daubs, and yet
they overturned Roversus Wade. They got tremendous criticism. Many people are now more than ever, are saying that the Court is illegitimate. So it's really important for the courts to take a more conservative. By conservative, I don't mean politically conservative. But what I mean by that approach is a more cautious approach. If they're going to undo precedent, they have to do it when the time is right, when it's
squarely presented. Otherwise, even if it's it's welcome at that moment, it allows them to do it in other times when it's much more unpopular. For example, in Daubed, the co counsel in the case said, the Supreme Court's refusal to reconsider the insular cases today continues to reflect that equal justice under law does not mean the same for the three point six million residents of US territories as it
does for everyone else. Does he have a point? Yeah, I mean he has a point, and that's an important point. And the underlying problem of colonization is a significant point, especially right now with the death of the Queen of England, that issue became very newsworthy and the whole history of colonization is an ugly history. So yeah, that's a really important substantive point. But and I'm not necessarily defending what
the Supreme Court did. What I'm saying is why I think they did what they did, which is this idea that the case has to be presented to them. Let me give you a ridiculous example. If this case we're about something that has to do with corporate law and nothing to do with territories, you wouldn't want them to say, oh, and by the way, the insular cases need to be overruled here. It's obviously is much more related to the
insular cases. They could reach it, but my guess is the charitable guess is that they wanted it to be squarely presented. The other problem is they may not have the votes. This is where I'm concerned. What if gors which wants to overrule it, thought mayor maybe the other two liberals, but the others don't, so they only have four votes. And if that's the case, it would be worse to then reaffirm those cases. So that could be
the other one. Another thing is that they knew they were going to reaffirm the lower court's decision here, but they were going to avoid this issue anyway because they didn't have the votes on this particular issue. So I think that's much more likely. Even though yeah, sure, there
is definitely a point that these are racist cases. There's a lot of problems with these cases, and we need to come to a reckoning with our past and our treatment of different areas that we have so called, and this world is even used in some of the briefs conquered, so I think that is important. The ten Circuit said it was for Congress to bestow the privilege of US citizenships. Yeah, that's the precedent right now, is that this would be
Congress's job up and certainly different treaties. I've said that, But the Samoan people under principles of self determination right now and have not reached a consensus as to whether or not they want to have citizenship. You know, we're just going to have to wait till another day to see what they do about the insular cases, which obviously are are problematic, but there were also problems that any way the Supreme Court decided in this case could have
been considered racist as well. So it's a very complicated area and this was not called a clean vehicle to decide these cases. Thanks so much. And that's Professor and Lo Faso of the West Virginia University College of Law. Rishi Sunac will be Britain's next Prime Minister. The forty two year old member of the Conservative Party will be sworn in as the country's third leader in less than two months, and it's first ever prime minister of color.
It is the greatest privilege of my life to be able to serve the party I love and give back to the country I owe so much too. Joining me to discuss a new prime minister is Ambassador Robert Holliman, the President and CEO of Crowell and Mooring International. He served as Deputy United States Trade Representative from two thousand fourteen to two thousand seventeen. So what's your take on
Rishi Sunac as the new prime minister? This is very much a UK decision to make, and the people who are in the rooms as they're making the decisions are clearly the you know, the best place to understand from how Rishi Sunac will serve as the Prime Minister. With that said, I think we can see kind of looking across the Atlantic from the US, um we can see that there's a significant need for the UK to reassert a level and show the world a level of stability.
Clearly that can often be best accomplished with somebody who is a known player, but who is um as they may determine at the time carrying less of the baggage that some of the other potential contenders would have. UM And so I think in that sense, you know, he's a known player, he's understood. How this affects domestic politics within the UK or something I wouldn't be in a position to um to comment on, but how this affects the UK standing with the US or with the rest
of the world community. I think the US will be um um pleased to see somebody come into place with the hope that he will have a um you know, a less rocky tenure than his immediate predecessor. I mean, one of the things I think is a hallmark and a strength of the U s UK relationship is that it can, you know, weather a variety of storms and turbulence through elections, whether their party elections or national elections in either country. So I think we'll move on well
with mercy soon act. So he said today, there's no doubt we face profound economic challenges. Can you describe some of the economic challenges that the UK is facing right now? Sure?
I think they're really threefold. Um. One, there's the purely domestic UK economic challenges with rising inflation rates, with recent needs for intervention into the British economy UM, and UM the high costs that are still associated with them, not only the you know, the lingering aftermaths of the COVID pandemic, but also the lingering economic challenges as a result of Bruxit UM. So they have significant domestic challenges that are creating concerns not only in the marketplace within the UK,
but also on the part of UK citizens. I think the second part of it is how does the UK UM hold up in the light of the rest of the world. UM. You know, they're the fifth largest economy in the world, so they matter enormously in terms of the global economy. They matter significantly in terms of their economic and political stability UM. And simply for the US
and the UK. They are a key ally of the United States, not only on economics but on national security and defense UH and supportive democracy, so they play an outsize role UM and any lack of stability economically or politically in the UK is certainly a source of concern for the U. US. And finally, I think in a world where we see an increasing number of authoritarian regimes that are gaining power, UM, the ability to have a
democratic regime in the UK. UH in a stable regime is important force of the global discussions that are happening. I'm not talking about small p politics discussions, but I'm just talking about having a strong voice by which the UK, as such a large economy can speak up on the world stage on issues that go beyond the borders of the UK. So those are the key issues that I see at play. I think the most important ones that the UK is working on now are on their domestic ones.
How do they restore confidence at home? How do they stabilize their economy, how do they manage to deal with some of the inflation issues and try to regain in the growth they're looking for. Um. The others are certainly hugely important, certainly for the US. But I suspect what the UK is focused on right now is how do they write the ship at home um and get get
the kind of stability they need. Say, trade relationships now, well, it's substantial, and you know the good news I think it's it's say, it's sort of it's largely unaffected by any of the recent political turmoils within the UK. UM. You know, it's a large trade relationship the US is accounts for nearly twenty of all trade by the UK, so we are a enormous trading partner for the UK. The US is obviously a much larger economy, but UK trade is five of total US trade, so this is
an extremely important relationship. I think another factor that really underscores the importance of it is around foreign direct investment, which is another key element of trade, and the UK is the number one destination by country or foreign investment coming out of the US UM it's nearly a trillion dollars as last year, and the UK is investing merely half a trillion dollars in the US in UM, so as a source of both bilateral trade but a source
of the investments in each country is making the other. It's enormous and the good news is that that continues to be a strong trade relationship and a source of
economic stability between our two countries. I think the question though, that that poses is does that relationship between the US and the UK get better and how has the Brexit vote and the aftermath of Brexit affected the US and the UK, And there I think the jury is still out uh And in fact I would say that the UK has not obtained even more favorable benefits in trade with the U S or other countries that they had
hoped to obtain following their departure from the EU. The UK and the US were negotiating a bilateral free trade agreement during the Trump administration. What happened to that? Where does that stand? That bilateral free trade agreement really fell by the wayside, largely as a result of domestic priorities within the United States. Liz Trust had been in the Trade Secretary War Administer for the UK when those discussions started,
so certainly she had a history of working on those discussions. Um, I think what happened in the United States it was
really twofold. One is that the Trade Promotion authority that the US Congress had in place that would enable, whether it was the Trump administration or the Biden administration, to negotiate new free trade agreements on favorable terms, that authority expired in the middle of So in the absence of that authority, it is difficult for any White House to negotiate a free trade agreement, whether with the UK or
any other country. And those really are the trade promotion authority practices that Congress imposes on itself To say that if a trade agreement is brought back to them, that they will approve it on an expedited approve or disapprove or does that they retain the ability to disapprove, but that they would act on it on a expedited time frame, and that they would consider it as a totality of an agreement not subject to the amendment process which Congress
uses for most typical legislation. So that Trade Promotion Authority was in place. It was put in place when I was in office in the Obama administration, but expired in the middle of last year, and so without Trade Promotion Authority, it becomes very difficult for a White House to undertake a new free trade negotiation um with confidence that they could successfully conclude it and then actually get it approved
by Congress in the implementing legislation. So that expired. I think the second thing is that the Biden administration has really been focused on all series of domestic priorities, whether it was the Inflation Reduction Act or UM, it was the infrastructure bill, or it was focused on clean energy other health matters, and so it really has not been a top of mind priority for the Biden administration to negotiate the agreement, particularly in the absence of trade Promotion authority,
So it's really um foundered. Uh, and it's sort of on a side track now, largely because of US domestic issues. I think the question I supposed that, you know, could it be revived in the next Congress, you know, that remains to be seen. But for the moment, the EU and the UK both have relationships with the US that are substantially similar. The UK doesn't have anything less favorable than the EU has with the US, nor does the UK have anything more favorable. We don't have a comprehensive
trade agreement with the EU and the UK. There are a series of smaller agreements that are in place that were ranged from things like pharmaceuticals to certain types of machines to mined spirits. Those we've negotiated with the UK, just like we have with the EU. So what would it take for the US to negotiate a trade agreement
with the UK? I think it would take three things. One, it would take the US Congress deciding that they wanted to adopt a narrow trade Promotion authority that would say that the US could negotiate a free trade agreement with the UK and the UK alone, and that would be the easiest, most surgical way in which the Congress could act to say that they supported a trade agreement with the UK, even if they weren't willing to say, as they're not that they would support a whole series of
other free trade agreements with other countries. Secondly, it would have to be viewed in the economic interest by both the US and the UK, but particularly the US to take that on at a time of the coming year where we're certainly going to have a series of economic challenges,
including inflation in both markets. And Three, I think it would have take a meeting of the minds that involved not only the business community, but labor community and NGOs to say that there was something about the long term special relationship between the UK and the US that needed to be coupled with a special trade agreement. It's entirely possible. I don't think it's probable. Thanks for being on the show. That's Ambassador Robert Hollingman of Crowland Mooring, and that's it
for this edition of the Bloomberg Law Show. We member. You can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten BM Wall Street Time. I'm June Grosso and you're listening to Bloomberg