The Daily Signal - Arizona AG Mark Brnovich Fights for Trump's Immigration Rule at Supreme Court

Episode Date: February 24, 2022

Illegal immigration is taking the spotlight at the Supreme Court. Arizona Attorney General Mark Brnovich argued Wednesday before the nine justices in favor of former President Donald Trump’s "public charge" rule. That rule, based on a concept that goes back to 1882, would prevent illegal immigrants from gaining citizenship if they use too many social services such as food stamps or Medicaid. In Brnovich's words, it's only fair that hardworking Americans get priority over those "cutting the line." "I just think that a lot of folks, hardworking, middle-class taxpayers in our country, not just in Arizona, all over, understand what's fair is what's fair," Brnovich says. "It's not fair for someone to come in and basically cut in line and then get government benefits." Brnovich, a Republican, joins "The Daily Signal Podcast" to discuss how the Supreme Court arguments went, and what the "public charge" rule means for our immigration system. We also cover these stories: The United States warns that Russia’s aggression toward Ukraine could result in a massive refugee crisis as well as threaten international security. Chicago Mayor Lori Lightfoot announces that as of Feb. 28, the city for the most part no longer will mandate masking or require proof of vaccination against COVID-19 for restaurants and other indoor businesses. Viewership ratings for the 2022 Beijing Olympics show it was the lowest-viewed in the televised history of the games. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

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This is the Daily Signal podcast for Thursday, February 24th. I'm Mary Margaret O'Lahan. And I'm Doug Blair. Immigration is taking the spotlight at the Supreme Court. Yesterday, Arizona Attorney General Mark Bernovich argued in favor of former President Trump's public charge rule. That rule would prevent immigrants from gaining citizenship. They use too many social services, like food stamps or Medicaid. He joins the show to discuss how those arguments went and what this rule means for our immigration system. But before we get to Doug's conversation

with Arizona Attorney General Mark Bernovich, let's hit our top stories of the day. The United States warned that Russia's aggression towards Ukraine could result in a massive refugee crisis, as well as threatened international security. On Thursday, U.S. ambassador to the U.N. Linda Thomas Greenfield cautioned a group of delegates gathered at a U.N. General Assembly meeting that millions of refugees could flee Ukraine during a Russian invasion. Thomas Greenfield said, if Russia continues down this path, it could, according to our estimates, create a new refugee crisis, one of the largest facing the world today, with as many as

5 million more people displaced by Russia's war of choice and putting pressure on Ukraine's neighbors. Ukrainian officials also sounded the alarm over Russia's aggressive stance. Ukrainian President Volodymyr Zelensky called for a state of emergency across the country starting midnight on Thursday. Additionally, during a press conference in Washington, D.C., Ukrainian foreign minister, Dmitro Kuleba, said Ukraine would defend itself against Russian incursions. Kuleba said, I would like to assure you that we would, would be happy if we never have to pick up those weapons and use them on the battlefield. We want

peace. But if Russia attacks, we have to be equipped to fight back. Kuleba added that he cannot be fully satisfied until the last Russian soldier withdraws from Ukrainian territory. Chicago Mayor Lori Lightfoot has announced that on February 28th, the city will mostly no longer mandate masking or require proof of vaccination for restaurants and other indoor businesses. masks will still be mandated in the Chicago Public Schools, however. This decision is in alignment with the state's plan to lift the statewide indoor mask mandate on the same day, Lightfoot said in a tweet, noting that masks will still be required in congregate spaces. The Chicago mayor added that she will not hesitate to enforce more mandates in the future, though she said that her goal is not to shut down our economy again. Lightfoot and Chicago Public School's CEO Pedro Martinez said that they planned to state.

by their agreement with the Chicago Teachers Union mandating masks and schools until August. We have made great progress in recent weeks against this virus, and we do not want to jeopardize that progress by moving too quickly, the school district said in a statement Tuesday, according to the Chicago Sun Times. We look forward to the day when we can be mask optional at CPS, but we still need to get more students vaccinated across our district, and we still need to work with our public health and labor partners on the best way to preserve a safe in-person and learning environment for all. Viewership ratings for the 2022 Beijing Olympics show it was the lowest viewed games

in the event's televised history. The data released on Monday revealed that the 2022 games had an average total audience of 11.4 million viewers. That's a more than 40% drop since the last winter games. Those would be the 2018 winter games in Pyongchang South Korea, which had a 19.8 million average. Per NPR, some experts blame the low numbers on a large time difference between the U.S. and China, as well as pushback to China's human rights abuses. The Winter Olympics also generally attracts less interest than the Summer Olympics does.

Though the Winter Olympics failed to attract a large television audience, the 2022 games were the most streamed winter games ever. Per NPR, 4.3 billion minutes of events were streamed digitally over 18 days. Now stay tuned for my conversation with Arizona Attorney General Mark Bernovich. At the Heritage Foundation, we believe voting is a sacred duty. It's how people express what course they want our nation to take. Given the importance of the ballot box, it's necessary to have a transparent and fraud-free system that can be trusted. This is why Heritage created the Election Integrity Scorecard.

The scorecard compares the laws and regulations for elections state-to-state and ranks them on their security and transparency. Check out the election integrity scorecard at heritage.org slash election scorecard. My guest today is Mark Bernovich, Attorney General for Arizona. Mark, welcome to the show. Oh, glad to be back here. This is such a great place, a lot of fond memories. Well, it's always wonderful to welcome some people home.

Just hours ago, you argued in front of the Supreme Court on President Trump's public charge ruling, which for those of us who maybe aren't aware of, it's a ruling that prevented immigrants from gaining citizens. if they were too reliant on social services such as food stamps or Medicaid. So what is it stake in this case? Well, first, once again, thank you for having me. And I think it's important if I can indulge me. Look, I'm a first generation American. My parents lived through World War II.

They lived through communism. And when I was walking into the court today, I mean, it's not lost on me. I remember going there as a high school kid and being in awe, like, the statue of John Marshall and you're seeing all the stuff. And literally, you can have a first-generation American suing the President of the United States and arguing against his Department of Justice in front of the Supreme Court, I think, speaks volumes about what an amazing country this is. And it's an amazing country because of the rule of law. So fundamentally, we are a nation of immigrants.

I understand that. We are the land of the free. I understand that as well. But we are not the land of the welfare state. And what we don't want to do and what the public charge rule is designed to do, I mean, it's literally a statute's been around for 100 years is basically we don't want people coming to the United States to become dependent on government, to become wards of the state. And so the Trump administration had promulgated a rule that basically said if you are

on government benefits or welfare for more than one year of your first three years here, that you were then not eligible or the path for legal status. And the common sense rule is designed that, look, we want to make sure that people that have paid into the system and that people that are citizens here when there's an emergency, a crisis, or they're in need, that they're the ones getting those benefits. And so the Biden administration, there was multiple lawsuits on this. The Trump administration was defending it. And the U.S. Supreme Court literally had accepted certiorari on a case.

And the Biden administration, and frankly, really unprecedented move withdrew their defense of the public charge rule. And then they allowed a decision from the Northern District of Illinois that essentially said the rules unconstitutional stand. And then they used that as a basis to rescind the rule. So it was really sneaky and tricky. And, you know, I remind folks that, you know, it's the take care clause in the Constitution, not the surrender to the left cause, which is what the Biden administration essentially did. So this was an important case because if the Biden administration will not do their job, then states like Arizona are going to have to come, step up and defend the rule of law. And that's what we were trying to do today. So that's some great background and really appreciate you giving us that info because some of this seems very complicated.

Now that we have that background, would you be able to place us in the courtroom? What happened? What were the justices thinking? What did it seem like the atmosphere of the court was? Well, I will tell you, and in fact, I think I made reference to saying in the courtroom, that I learned a long time ago not to predict what a judge is going to do, especially a federal judge, you know, with lifetime appointment. I mean, for full disclosure purposes, I'm actually married to a federal judge.

She was a state judge and then President Trump appointed her to their federal bench. And, you know, I can't even predict my wife's going to do all the time. So, you know, you never know what's going to happen with the federal judge. And a lot of times the justices will ask questions because they may even have their mind made up, but they're trying to influence, you know, their colleagues as well or maybe influence the way the opinion takes shape. But, you know, clearly the justice is understood, especially when they were asking the Biden administration, their lawyers questions about like, you know, for precedent, when has this happened before? And frankly, it hasn't.

And that's what I kept coming back to that this is unprecedented. This is something that we haven't seen before. You literally had the Biden administration colluding with the plaintiffs in order. to undermine a duly enacted rule. And it's a dangerous precedent because, like said, if you allow them to do this, then you could have, you know, other instances where the administration will essentially engage in strategic surrender to advance their policy goals. And once again, we talked about this to a second ago, the rule of law has to mean something.

And that means that the Biden administration doesn't like the public charge rule, then they have to go through the notice and comment and go through the process that the statute requires. They can't just unilaterally pick and choose which laws. are going to apply to them. And when they don't like the law, essentially a sue and surrender or sue and settle strategy where they get together at the other side and, you know, do something that they think is really cute and tricky. It sounds like the crux of your argument is that part of the process was done wrong.

Maybe that if the Biden administration wanted to do something and change this law, they have the capacity to do that. It's just not through the way they're doing it. Is that what your argument was? Yeah, that's a big part of it. And one of the things I pointed out, I even said it's like it's not just about what the Biden administration did here. if you allow them to get away with this, you've essentially then provided a roadmap for future

administrations. We know when there's a change in administrations, there's a change in policy. And we're not saying that. The Solicitor General can even decide to not take a position. You know, we're not trying to micromanage the federal government's litigation. But if they aren't going to do their job, one of the things the Biden administration did was oppose states like Arizona and other states that wanted to intervene. They opposed us. They stopped us from defending the law. So, you know, my thing is if you're Joe Biden, and you don't want to defend the law, then get the heck out of the way and let Arizona come in and do the job that you're supposed to be doing, right?

And in fact, one of the points I made is that this very Supreme Court, the U.S. Supreme Court, is said the states can't enforce immigration law, right? You know, they said the Fed's preempt us. That's where the president's kind of at his apex as power. So if the president is not going to do his job, then we should be able to at least step in and say, and defend the law as it is if he's not going to do his job. If that's your argument, what was the argument of the opposite side? How did they justify their position? Well, look, a lot of what they were arguing was, look, there's a change in administration and administrations could change policies and, you know, kind of essentially that, you know,

because these cases have been dismissed, there's nothing really Arizona can do at this time, you know. But our point was is that they had strategically and sneakily, if that's what were sneakily, they had withdrawn the rule, surrendered in these cases, withdrew the cert petition from the U.S. Supreme Court, all these unprecedented things. And they literally did it in a way that was so core. coordinated that they did, you know, they did all of a sudden March 9th, and then bam, they end up, you know, revoking the rule and saying that relying on this northern district of Illinois decision. And then they try to say, oh, well, no one can do anything now because all these cases are settled now. And it was, you know, underhanded and sneaky. And so, you know, part of our argument was you have to let us into these cases so we can defend the public charge rule when the Biden administration won't. And the justices, and even the Biden administration recognized, you know, we kind of kept coming back to. even the liberal justice is that this is really unprecedented.

In fact, I can't remember one of the justice today alluded to the fact that this was kind of like a law school problem almost, you know. And, you know, there's a whole chicken and egg thing. Like, well, if you engage in strategic surrender and you won't defend the law, well, can the states come in and defend it? And more importantly, is there still a case or controversy? Is it moot? And so, you know, there's all these type of legal issues going on. And the bottom line is that you can't let the Biden administration get away with this. And I tried to keep emphasizing that, you know, it may be the Biden administration now,

but it could be another future administration that tries to do something like this. And the rule of law once again has to mean something. And the Biden administration tried to almost make it seem like, well, because we disagreed with them on policy, you know, that's why we were doing this. And like I said, I understand that when there's a change administration, there can be a change of policy. But the Administrative Procedures Act, whether you like it or not, provides a process for withdrawing a rule. And the Biden administration didn't follow it, period. It sounds like the implications for this case kind of umbrella out of immigration. Immigration is the problem in this particular case, but there are wide-reaching consequences for other policy areas.

Yeah, absolutely. And I think that, you know, it's important. And one of the arguments that, you know, frankly, I made and I emphasized is that the states have to have the ability to intervene when the federal government won't do its job. And just so, you know, some of my thinking on this, there was a side of me that's like, well, you know, do we want to make it more? likely the states intervene and, you know, but does this set a precedent for, you know, lefty states like California, New York now to do an involvement of litigation. And honestly, I thought to myself, well, you know what? The courts are going to let California, New York do that anyway.

Even like in this case, they find an excuse for San Francisco to sue to, you know, over a federal statute or in Illinois, get a nationwide injunction out of Cook County. So it's like, you know, the left already does this. They gain the system. So, you know, we as attorneys general, I need to use every tool in my toolbox. And I want to make sure we're on offense. And that means that we have to have the ability to go in and defend a federal law and the federal government won't do it. And I remind folks all the time what Ronald Reagan said, the federal government didn't create the states.

The states created the federal government. And part of federalism means the states have to have that ability to protect their interests when the federal government won't. One of the things that this brings to mind is this concept of sanctuary cities where the immigration law sort of is preempted by the states in terms of enforcing. How does that play into this debate? Yeah, you know, that wasn't directly, you know, a part of this issue. And in Arizona, actually, I think it was two years ago that City Tucson, which is a progressive left-leaning city, they even rejected Sanctuary City. So I think most people now understand that if you decriminalize something like the Biden administration is doing, it's one of our lawsuits about the public charge rule. If you incentivize it, this is part of dealing with interim guidance.

I'm sorry. I might say interim guidance, not public charge. But the public charge is the incentivization, we call it. And so when you do that, when you decriminalize something, you incentivize something, you get more of it. And people's hearts maybe are in the right places, but they have to understand it's not fair to anyone. And what the Biden administration has done is this is a man-made crisis. You know, they want to talk, the lefties want to talk about, the president of left about climate change or whatever, but make no mistake about it. This is the real man-made crisis and disaster.

Our system is getting overwhelmed. I know as a prosecutor we're seeing record amount of fentanyl, methamphetamine. We're seeing the prices dropped, and it's because the cartels have seized control of the border. So, I mean, I think anybody, any reasonable person, whether they're a Democrat, Republican, left, or right, understands that you can't have a system that gets overwhelmed and we basically seed control of our border to the cartels. You represent Arizona, which is one state out of 50, but how has this public charge rule at the federal level affected your state? Well, we know, and this was this and part of our pleadings today, is that more than a billion dollars, just in financial costs, right, of people receiving benefits. Now, you know, the Biden administration once again tried to like minimize saying, oh, it doesn't impact a lot of people. And, you know, only here in Washington, D.C. when you start throwing around numbers like billions, do they think that's insignificant?

But, you know, I'll tell you, as a public school kid and as Arizona taxpayer, we shouldn't have one dime go to subsidize people that, quite frankly, don't have lawful or legal status. I mean, that's the bottom line. And once again, we are a nation of immigrants, but we want to make sure those safety nets are there to protect and support people that have paid into the system and, you know, basically have folks that want to come here that want to be self-sufficient, that don't want to become relying independent on the government. And so, you know, these are obviously really, really important debates. And I just think that a lot of folks, hardworking middle class taxpayers in our country, not just in Arizona all over, understand. what's fair is what's fair. And it's not fair for, you know, someone to come in and basically cut in line and then get government benefits. And I'll tell you, I don't do polling.

I never have. And, you know, I never run for office before I was AG. And, you know, but my, I talked to my mom and her friends from church. And, you know, so my mom is born in foreign country. Her friends were born in Eastern Europe and Poland, you know, in Romania, Hungary, Yugoslavia. And when I hear them talking about they don't like what's going on, they had to work two and three jobs. And no one gave them anything. No one gave them a, you know, the most challenging question immigrants are getting now is, you know, they want, you know, twin or a single bed, you know, in their hotel room that's being paid by taxpayers and they get free flights.

And fundamentally, even immigrants understand this is not fair. It's not fair. The system is not designed this way and the system is getting overwhelmed. And the reason why somebody wants to come here, what's going to because of the rule of law. And so I think people understand that, not just in Arizona. And then you throw the overlay of what's going on, you know, with the cartel. and violence and drug prices falling and the amount of meth and fentanyl coming in.

I mean, people are dying. People are dying in the United States as a result of the Biden administration policy. So I think there's not a lot of sympathy for people that aren't doing it the right way. While this rule makes its way through the courts, what is the reality on the ground? Well, the system, I mean, look,

there's a lot of us that used to say that we thought the Biden administration wanted to abolish ICE, but now we're seeing firsthand that essentially they're abolishing the whole southern border. I mean, this is the whole far-left progressive, you know, idea, you know, whoever's talking to Joe Biden's earpiece or whatever telling him is that they essentially, you know, want to undermine our sovereignty and it's undermining our national security. And I think this, you know, when you have to look at this in a broader context, like when we think of like what they're doing with the 1619 project and critical race theory, undermining, you know, our institutions, you know, houses of worship, the family, undermining law enforcement, I think this is all part of a systematic effort by the far left, the progressive left, to create this neo-Marxist paradise.

And they have to get, the system has to be overwhelmed, and they have to get middle class, you know, public school kids to hate their country. And that's what they're trying to do. And I think this is part of that system. It's part of, you know, one of the prongs of the progressive left with trying to do to fundamentally shape and alter this country so they can bring about their virgins. version of a Marxist paradise. Let's say the justice is rule in your favor.

We get what we want here and what happens next? What are the implications if the justice is rule in your favor? Well, depending on how broad or how narrow the decision is, I can just assure everyone that I'm going to keep fighting, I'm going to keep going on offense, I'm going to keep doing everything I can to try to bring some sanity, to try to bring some order into what's going on in our southern border. Because frankly, it's overwhelming the system. It's affecting.

It's going to affect every taxpayer. And, you know, we saw just last year, more than 100,000 people died of fentanyl, you know, opioid-related deaths. I mean, that's almost twice as many people that died in the Vietnam War. I mean, this is a war going on. You know, I recently issued an opinion first aging in the country, first ever to call what's going on an invasion. And I think if people read that well-reasoned opinion, they will understand that what is going on here with the cartels and the gangs is that, you know, there's a unconventional war going on. to recognize that. Absolutely. I want to actually mention that phrasing. On February 7th, you released a legal brief like you were saying that was describing this as an invasion. What led you to use

that word specifically? Well, the Constitution talks about this. And, you know, frankly, one of the problems I have at the Biden administration is they won't even recognize the problem they created our southern border. I have invited, you know, Kamala Harris was a attorney general. I mean, she was one of my colleagues not that long ago, you know, Secretary Majorcas, we've invited them to sit down and talk to us to get a firsthand, look at what's going on in the border, you know. But, you know, how the lefty elites are, you know, the California elites. They fly over Arizona and the rest of our country, and then they come to D.C. and they think they can solve all the problems. But they don't even recognize the problems we have. And so language, I think, matters. And so part of it,

it's almost like the first step to recovery is admitting you have a problem. And so if the Biden administration won't call it what it is, somebody has to. And that's part of the reason why, you know, we use that. And I understand that language, you know, some people are offended by it. Some people can, you know, think it's inflammatory. But, you know, it goes back to these first principles. What does the Constitution say? And, you know, we did an analysis. And we say that based on all these facts, based on the language of the Constitution, this qualifies. And therefore, it's up to the governor, our governor or other governors, to then use all the resources available that they have in order to try to you know, stem the tide and, you know, protect our Arizona citizens.

How does the Constitution define invasion? Is that a word that appears in the Constitution with a legal definition? Yeah, if you look in, if you look at, in fact, I brought my, actually, I didn't bring it. I happen to snag one from your lobby. Heritage Constitution. Nice plug there, product placement, right? See, that's why. You know, you know, I'm a good lawyer when I can, oh, gosh, I might have the Constitution

might come in handy here. No, we know that, you know, there's language in Article 4, 2, and then we know in Article 1, Section 10. And, you know, there's language in here that really, like, sets forth the parameters. And so, as I said, I think that, you know, words have meaning. And one of the things that we've also talked about in just not even the context of invasion, you know, that, you know, the president has an obligation to, you know, take charge and make sure the laws are executed, which I believe President Biden's failing to do.

But, you know, I've also said that Secretary of Majorcas is probably the most incompetent of President Biden's cabinet officials. That says a lot, right? And so I don't know why there's not more people calling for his impeachment. I mean, if he's not going to do his job, I actually had previously called for him to be replaced. They're not going to be that. But, I mean, at some point, you know, he needs, they need to use the impeachment process in the Constitution and move forward on that. And so, you know, it is a strange time because sometimes I don't know. I take a step back and I think, well, what is the Biden administration up to?

What's the progressive left up to? You know, you asked it. Sometimes people ask me. And I can, you know, assume, you know, or think, you know, based on my, you know, experience and what they're doing, what I think they're doing. But it really is crazy. And I think that a big part of this is not only overwhelming the system, but they want to consolidate as much power the progressive left does because they understand that once you take that

power from the people, you take it away from the states, it's really, really difficult to get it back. And even with this government increases in size and scope and, you know, provides more outlays, people become, you know, more dependent. You know, that's why nothing ever changes in this town. The federal government just goes bigger. and bigger and bigger because there's not enough folks willing to stand up and say, no. Where in this Constitution does Congress have the power to do that?

You know, where does an Article 1, you know, the numerator powers? Where does it say they can do that? And then, you know, the notion that, well, wait a minute, is this something that not only the federal government is the power to, but should they be doing? You know, and I'm a big believer that, I'm a big believer in federalism, that when government is left at the state level or more localized, it's more responsive and more efficient. And, you know, why should Arizona taxpayers be funding? subsidizing, you know, bridges to nowhere or bike paths in Vermont.

One final question for you. If this is something that is better fought at the state level, should more states be involved in this fight and how should they be engaged in it? On immigration? Yes. Yeah. Okay. Well, I'm a big believer in federalism just in the principles of limited government and enumerated

powers. But as to immigration, this is part of the big problem. is the U.S. Supreme Court, and actually in Arizona case, the Arizona case, they said that the states can't use or can't enforce immigration laws. And so the president, when it comes to immigration, national security, foreign policy, foreign trade, that's where the president, he or she is the apex of their power. And so if the courts aren't going to let us do it and enforce it, then we have to use other tools or toolboxes and even going back to the invasion opinion. Part of that is that, well, let's use the criminal enforcement. We're not enforcing immigration law, but we're allowed as a state to enforce criminal laws, right? And so I think that it's sad that it's come to this time and place where states are having to do this kind of stuff.

I mean, the state of Texas shouldn't be having to build a wall. That's the federal government's responsibility. Literally, we have a lawsuit trying to sue the Bidenist or assume the Biden administration over failure to build a wall. The money's there. Literally, we are paying people not to build a wall now. This is how crazy it is. So it's not fair. It's not right that states like Arizona and Texas are having to do this.

But my goodness, it's, you know, if I don't step up and do something, then who will? I mean, and that's, these are strange and difficult times. And I think they call for bold leadership. And that's what I'm trying to do. Look, I tell people all the time, you may not agree with me all the time, but you know where I stand, you know, where my principles are, and they're back to those first principles. And I believe in, you know, the primacy of the individual. I believe in living in government.

I believe in the promises of the Declaration of Independence that our rights are given to us by a creator, not by the government. And I think sometimes we lose sight of that. And so I don't want to be like on the front line and suing the president in court because he's failing to, you know, secure our border. But I'm going to do it if no one else will. I was Attorney General Mark Bernovich, who represents the state of Arizona. Mark, thank you so much for joining us. And that'll do it for today's episode. Thanks so much for listening to the Daily Signal podcast.

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