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You ready?
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I was born ready.
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Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. The Supreme Court comes down in that California redistricting that was a response to Texas's redistricting in. Is one a racial gerrymander and the other not. Will the Supreme Court show its true colors? Well, hold on as well. And relatedly, we have for the first time, the SCOTUS blog, interim docket stat pack and hot takes from James Comey and Jack Goldsmith. 5th Circuit weighs in on all of these habeas petitions from folks who are being indefinitely detained after entering the country illegally, as well as a lawyer who says her job sucks. Is it refreshing candor or is it unprofessional? All this and more on Advisory Opinions.
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Okay, David, we'll start with the Supreme Court. Right after we finished our podcast. Last week, the Supreme Court issued its ruling in that California redistricting case. Now, we covered what amounts to the district court ruling. It's still a three judge panel and we had Judge Bumate dissenting from that three judge panel. But it is the first court that hears a redistricting case. Judge Bumate making the argument that this was a paradigmatic racial gerrymander. The comments made by the map maker and the legislators by a majority group to protect majority power. Like, what more could you want from a racial gerrymander? But as we discussed, this was not happening in a vacuum. It was of course happening on the heels of Texas and. And the Texas decision where the majority of that three judge panel had found that it was a racial gerrymander. And nevertheless The Supreme Court, 6 to 3, allowed that map to go into effect. And so we were like, yeah, sorry, this is not going to come out any differently. And David, with no noted dissents, the Supreme Court denied the petition for emergency relief. So the California map will also go into effect for the 2026 midterm elections. Now, worth remembering, these are interim decisions about what map will be used for the midterms. It is not an actual appeal on the merits from those again, three judge panel, quasi district court decisions that will still make its way through the courts. And I will say, David, like, this to me makes a ton of sense that like, maybe the two are different, maybe Texas is and California isn't, or vice versa. That's really to work out though, the facts, the merits, like get into the weeds of this. The Supreme Court's job here was really just to decide whether they were going to intervene on a map for the midterm elections. I assume you are not surprised.
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I am the most not surprised person in the history of podcasting. I don't know if there's like a rankings for that, but I'm at the top of whatever rankings exist for not surprised. Look, I mean, I think there's two things going on at once. On an interim basis, after the Texas decision, regardless of the merits, there was just no way they're going to intervene and on an interim basis and allow Texas to go forward and then not allow California. This was all in, in my view, baked into cake. But there, there's a more interesting question to me about sort of gerrymandering in general. And are we really heading to a case where in the absence of sort of a, what you might call like Jim Crow level evidence, they're just going to let the political branch, they're just going to let the political branches deal with this. And, and they're going to be like, well, if you want to turn a 5545 state like Virginia into a 10 to 1 state, well, you can do it. Or if you want to turn, you know, 55:45 state like Texas into whatever the ratio is, you can do it. And if it's going to cause you political problems, you're going to deal with that seems to be where they're headed. And you know, once again, looming in the background is the litigation around Louisiana. And how is that going to play with Alan B. Milligan, which is the, the Alabama case that came out not long ago that seemed to sort of herald a maybe briefest Possible revival of Section 2. And now, I don't know, really does seem, Sarah, to me like at the end of the day, the Supreme Court is going to be just punting this all back to politics. And to your point about who decides, that we talked about at Dartmouth where you said like, you know, 80, whatever percentage you said of the, of the disputes we have in this country right now are boiling down to who decides. And it just seems to me to be that the Supreme Court is pretty clearly saying, I'll tell you who decides. Gerrymandering, legislatures and governors. That's who decides. And if you don't like it, do something about those people. So I don't know. I think it, it just seems to be that's where we're headed.
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Okay, David, there were those on the right who were upset because this was unanimous. And their point was when it was Texas, it was 6, 3 along ideological lines to let the Texas map go forward. And that benefited Republicans. But when it's a map that's going to benefit Democrats in a sort of opposite way, all of a sudden the liberals got on board. And my reaction to that was really confused at first. But if you see the court as a purely political sort of it's Congress, then, yeah, it seems hypocritical that the liberals dissented in the Texas case and not in the California case. But this isn't Congress. The Texas case then becomes precedent. Yeah, and we've seen this from Justice Kagan before, for instance, where she said, I disagree with the underlying precedent, but given that it is precedent, I join in applying that precedent. Now, we didn't get that concurrence here explaining that, because I think it's pretty obvious. And maybe the liberals thought that again, the facts on the ground were different or whatever else, but I just see no particular reason for charges of hypocrisy for, from anyone here.
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No, I mean, if you've had a court, if you've had a decision and then you have a remarkably similar case come up right after the decision. Well, the idea that you're going to, for the sake of consistency, dissent from the precedent the court just established. I mean, you could, you could, but that's certainly not hypocrisy to then go, you know, to consent to a court precedent that was just decided or to follow a precedent that was just decided. Yeah, you're right, Sarah. I mean, you cannot look at the court through consistently political lens. And as we'll, as we'll be discussing a little bit more later on in.
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The podcast and as you say, David, like, there's a lot of reasons they could have dissented still and said, as we said in Texas, we still don't like this standard. They could have said the facts were different. They could have said, here we're affirming the lower court decision, and there we were reversing the lower court decision. That's a distinction between the two. Again, we didn't actually hear from them as to why they, quote, unquote, changed their vote. I would also note that for those who are so upset about the interim docket being in the shadows, like, here's an example where you can criticize the court if you're on the left in a way that's against your own interest, and I think show some consistency on that. But instead, I only saw criticisms from the right.
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And yeah, I mean, if it's a problem when you don't write, it's a problem when you don't write, no matter who wins. Right. You know, so if the, and, and this is one of my criticisms of the, the way the emergency docket has unfolded. And I thought, Justice Barrett, you know, when she, when we were talking to her, in hindsight, I think that was one of the most interesting elements of the whole conversation was her saying, well, you know, writing starts to kind of lock us in on when we're in this preliminary basis. And then as if to vindicate her, we have this whole thing about the Kavanaugh stops. Right? So Kavanaugh writes, and then when he writes, he writes in a way that, by the way, just, I'm getting to the point where I'm going to add two. I have, I only have one trigger phrase in my life, like one trigger warning co equal branches of government. Those. That's the only like phrase where words are violence, like, in my worldview. And I'm about to add another one. And Sarah, you want, you want to know what the other one is? Kavanaugh stops because that's so unfair. Like, it is just so. Because if you read the Kavanaugh concurrence, he explicitly, explicitly talks about race alone isn't enough, Race alone isn't enough. And so if somebody is doing a race alone stop, as he then reaffirmed later on in a footnote, they are contradicting him, not following his concurrence. And so all the time you're hearing the phrase Kavanaugh stops applied to these stops where the alleged only basis is race or the alleged only basis is accent. And that is not what his concurrence said. And so, you know, here you have a situation where people like us are going, write more, please write more. And then Kavanaugh's like, okay, here you go. Here's a very conventional explanation of reasonable suspicion with a very conventional statement that race alone isn't enough. And then people run around pretending it didn't say what it said and pretending it said things that it didn't say. And, you know, based on this sort of underlying hostility they have to towards him. And so, yeah, and I don't, I don't want to go too crazy with my trigger phrases, but I've got, I'm, I've got one, and I'm heading towards two. Sarah.
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All right, well, I am not annoyed that they didn't write here. They denied the application. It fits in line with the previous precedent. Moving on. Right. This is what the interim docket is about. I, I have been persuaded that while sometimes writing is important on the interim docket, especially when we're, when it can appear that we are overturning long standing precedent, oftentimes when we are flipping a lower court decision, I actually, overall and for less writing on the interim docket. Now, I have been radicalized the other direction.
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Well, you know, I, I think you're exactly right if you're talking about something that appears to be overturning precedent. Right. Yeah, I, I really think we have, we need some writing. If you're doing it, essentially, what's a summary? It's almost like cert denied. Almost. It's not quite right. But they don't write when they deny SERD on hundreds and hundreds and hundreds of cases that let lower court decisions stand. And so if, if you've got a motion and you're, you're, you're seeking reversal of a lower court decision and they just let it stand, especially when it's so closely tracks precedent you just set. I got no problem with this at all. No problem. It just seemed to me to be like exactly what was going to happen.
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All right, David, Speaking of the interim docket, SCOTUS block has come out with its first ever interim docket stat pack. Now, this is the interim docket data from the OT24 term. So that's 2024 through 2025. They will release an interim docket stat pack with the merits docket stat pack at the end of the terms from now on. But nevertheless, I thought it would be fun for us to spend a few minutes on what the statistics were from last term, especially because I feel like I get a lot of grief from people now. When I talk about the merits docket statistics from last term, and then they're like, yeah, but what about the interim docket? You're not including that. So I, I want to remind everyone of the stat that I keep using that drives people crazy and then explain why I'm not combining the two. So. Right. David, my like go to stat is that if you do the closely divided cases, 6, 3 and 5, 4, 15%, David, were decided with all of the liberals together in dissent. So ideologically the liberals were all on one side, but 15% were decided with only conservatives in dissent, as in all of the liberals were on the majority side, which to me says like, it's a lot more complicated if 15% are all ideological one way and 15% are all ideological the other way. So if you want to be better at predicting the court, you're going to have to think more carefully than simply ideologically. And the pushback to that, as I said, is, yeah, but you're not including the interim doc itself stuff. You're right, because we have seen from the Biden administration that while interim docket outcomes are more predictive than not of what the final decision will be, they are not great predictors on the merits. And so I really can't combine the two. I hope that makes sense to everyone. Like, we can talk about the statistics separately, which is what we're going to do today, but there really isn't a way to simply mash them all together and say, you know, this side won this much in this because they're, they're just apples and oranges.
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Yeah, there is a qualitative difference between them. You're making a category era error if you're combining interim docket outcomes and merits outcomes because they're just different things. And so if you look at it like this, if you are a litigator and you are litigating a case before the case is done, totally done. And, and this happened to me many times. If I had a case that went all the way through lower court, appellate court, final judgment, etc, and this is a years long process, typically I might have 30, 40 motions of different kinds throughout the case. And if you looked at my win loss record on all the motions in the case, you know, it might be 50, 50, but in the very end of the case, I win the case because there's all kinds of issues that come up during litigation that get litigated and preliminary injunctions. Although an appellate ruling upholding a preliminary injunction is, you know, quite instructive, it is not a final decision. On the merits. And so there's just a major difference between a merits case and the interim cases. And if you lump them together, you're doing a disservice. You know, when you talked about COVID era regulations, for example, we had a lot of interim cases around, say, religious liberty and church openings and things like this. And they switched and moved and morphed back and forth over the course of COVID But the final analysis, when you're looking merits cases on religious liberty merits cases, then the court's record was much more clear. And I think you're gonna. At the end of Trump 2.0, you're going to see a very similar dynamic where there is a lot of early back and forth in the sort of emergency docket, culminating in a series of merits decisions that are going to be extremely material to the key elements of the Trump sort of program and agenda. And then we'll see where we are. And then we'll see where we are. But I would submit by the year 2028, a lot of these early emergency docket cases will be almost entirely forgotten against the backdrop of the very weighty, very consequential merits cases that are on the normal docket that are going to be decided.
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A
Okay, given that, let's discuss some of these stats, David, because they are strikingly different than merits docket and strikingly different than interim docket terms from the past. Okay, so from 2024 to 2025, the court granted relief in 53% of substantive applications. In the previous term, David, it was only 23%. So a big jump. Now, remember, we're doing all the way 2024 to 2025. So only half of that has Donald Trump in the White House. Half has President Biden in the White House. Of all of those substantive applications, the justices publicly disagreed in 76% of them. Again, that average in the before times was like 13%. I mean, wild differences. Now, let's just do. Since Trump took office, the numbers get even CRAZIER. Of the 27 filings that the Trump administration made, of those 55, they got relief in drumroll. 90% of those cases and only 9% were decided unanimously. It is hard to like what a thunderclap that is compared to the merits docket, compared to previous interim dockets, no question. Written opinions, by the way, accompanied 31% of substantive decisions, a dramatic increase from zero from 2015 to 2017 and 23% in 2023. And quick shout out to Professor Tara Lee Davis for pulling all this data together. Now, David, as We've said before, there's lots of reasons that those statistics can be crazy, dramatic and still not mean that the Supreme Court, for instance, is a corrupt institution or ideologically captured by the Trump administration. I thought this piece Jim Comey. Yes. That Jim Comey posted on his substack. Kind of a defense of the court, actually, and more importantly, defense of the courts as a singular entity that then Jack Goldsmith picked up over at executive functions. And I thought I would just read a piece of it before I let you, you know, react to all of this. This is Jack Goldsmith, including Comey's reactions. Insomnia the federal judicial system has done a remarkable job in the face of unprecedented challenges in hostility and standing up to the Trump administration, and the Supreme Court deserves a lot of credit for that. None of this resolves debate about Supreme Court interim orders. Has the Court's strong embrace of the unitary executive via interim orders been appropriate? Has the Court consistently applied its interim orders principles? Does it provide enough reasoning in its interim orders? And so on? These questions provoke sharp disagreement. But that should not detract from the undoubted larger picture of the federal judiciary, including the court in the worst of positions, providing a real check on Trump lawlessness. It's not about whether I like every decision. After all, it's not the rule of me, said Comey, responding to criticisms of the Court's interim orders. The test for the rule of law can't be that I only get decisions I agree with. True, Goldsmith writes. Also true. If we zoom out, the system as a whole has stood tall. So David Comey compares it to bungee jumping.
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I like that comparison. I think that's great.
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Yeah. Basically, early in 2025, the bungee corps, like, kept falling, falling deep into the canyon. And then it snapped back in a big way as people with an ethical spine and a view of history stood the hell up. And the main contributor to the standing up has been our judicial system system, including the court, he says, noting, of course that the court doesn't pick. It's not like cert. It's not that the court gets to decide which cases it hears on this interim docket, the administration decides which cases it appeals, and the court has to make a thumbs up or thumbs down decision on every single one the administration chooses to appeal. That's another reason why we can't combine the statistics. CERT is discretionary on the merit stocket. Interim docket is not.
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B
So I loved this at both the Comey and the Goldsmith discussion of Comey so much because I thought it was very helpful. And for those who listened or watched it or read it, sorry, it was very easy to understand. And so this is what I think a lot of people miss, and we've talked about it. The administration is very carefully choosing what it seeks to appeal on the emergency docket. It is not vollying everything up to the court. And so what you're looking at is a very smart, strategically smart decision by this, by the, the Trump administration to only go to the Supreme Court where their cases are the strongest and where they have a strong sense that their argument, especially around sort of unitary executive type issues, matches existing Supreme Court precedent. And I cannot emphasize enough how much choice of case can make a lawyer look good or bad. You, you can be the Michael Jordan of litigation. You could be the, well, second greatest ever LeBron James of litigation. You could be the greatest ever. You could be the goat. And if for some reason you're handed just a pile of barking dogs of cases, then you're going to lose and lose and lose and lose. It is not the case that great, great lawyering can cover for all sins in law. It is not the case at all. And so what they're doing is they're taking their strongest cases in this emergency docket up to the Supreme Court, but you know, in very, very consequential ways. And when you pull back and you zoom back and Jack does a really good job of this, he lists, you know, you have an interim order last spring that shut down the administration's efforts to deport people without due process under the Alien Enemies Act. You have the Supreme Court declining to stay a lower court order and joining the deployment of the National Guard in Chicago. And let's just pause on that. Think about how major those decisions were. Those are extraordinarily significant decisions. Checking the president, if they, if the court did not make them, you would have large scale deportations without due process right now potentially to horrific prisons around the world. I mean, this is, that was a massive decision by the Supreme Court. Similarly, I mean, think about the significance of the stay, of the deployment of the National Guard. I mean, that's enormously important. And then if you're going to talk about like the, the, the dicta that indicated where the Supreme Court is leaning on the Lisa Cook case. You're going to see that in some extremely important arenas the Supreme Court stepped in. And then in some other areas where the handwriting was already on the wall, such as multi member commit independent commissions and commissioners and independent commissions, the handwriting was on the wall for that guy's. It was on the Wall in Trump 1.0. It's on the wall at the Biden term. And this, the administration was smart to really focus on those in their appeals to the Supreme Court. And then the other thing that's really interesting about this is this is the first place where I've seen this. You know, the, the stats used to show, oh, their decisions not to appeal have left a bunch of injunction. Injunctions in place. Place like a lot of injunctions are in place. And so, you know, the way I look at it is these are the cases that in all likelihood would have messed with the stats. These are the cases that if they had taken them up in the same way they'd taken up the very favorable cases, you would see a lot different win percentage, but they chose not to take them up. And so I'm not, again, I'm with, with Comey and Goldsmith and saying I don't agree with all the decisions the court has made. And, and exactly. That's exactly right. As Comey said, if you're, if you're looking for the court to disagree with you, I mean, to agree with you 100% of the time, that's not the rule of law. That's the rule of view. But it's just really hard for me to, and you know, I try to steal man arguments. It's just really hard for me to look at the array of orders, existing precedent, etc. And say that how could anybody say that the fix was in for Trump? And in fact, when you look at the, the sheer number of injunctions that are in place right now, and I'm just counting, you know, from some of the, some of these stats, you've got, let's see, 8, 20, 29. I'm counting 74 injunctions currently in place just from the brief snippet of some of the stats. And so it's very hard to say that they have come in and swept all before them when they're facing 74 currently current injunctions. And that's a partial count. So, yeah, I thought this was a really helpful analysis and one that was very timely now that we're a full year through this process.
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A
So the interim docket stats are for Trump. That 90% number is based on 27 applications from the Trump administration from the beginning of the Trump administration through the end of the court's term, which is actually October, October of 2025, when that new term starts. So it covers the summer. So 90%. That was 27 applications. But like you said, David, that was just 76 other injunctions that they didn't appeal that are on like the specific topics, doge trans rights, funding cuts, climate and environment, access to federal property. That's not including immigration related cases. It's not including the, we'll call them retribution cases, Comey and Letitia James, which aren't injunctions per se, but which nevertheless had relevant losses for the administration. Again, the denominator really, really matters. The denominator for the 90% is only 27. Now maybe 27 is a lot. I, I'm not actually going to argue that point, but it's not 150 and it's 90%. It's 27 and they've won 90% of them. But the denominator of total injunctions or things in which they could have gone up on an emergency application to the court is in the triple digits unquestionably. So the administration. Yeah. Pretty wise in how they picked this. And David, we're going to learn just how smart they are right after this break when we go to the 5th Circuit on one of these habeas cases on immigration detention. When you bring a child into the world, everything shifts. You start thinking further ahead about school, everyday routines and all the milestones you hope to be there for. For me, caring for my family also means thinking about their future, even in uncomfortable ways. Life insurance isn't about expecting the worst. It's about making sure your family is protected, whatever the future brings. That's where Ethos makes things simpler. Getting life insurance through Ethos is fast, simple and completely online. 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Com for a limited time. Listeners can get 35 off their bestselling Carver Mat frame with code advisory. That's a U R A frames.com promo code advisory. Support the show by mentioning us at checkout. Terms and conditions apply. Okay, David, back in 1996, Congress passed, you know, when they were still doing legislation, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. We are going to be talking about really one provision of this as it applies to aliens in the United States. Okay, I'm going to read it to you and then I'm going to break out what it includes, what it doesn't include, and what we're really going to focus on. Here's the language we're looking at. One, an alien president in the United States who has not been admitted or who arrives in the United States, whether or not at a designated port of arrival, shall be deemed for purposes of this chapter, an applicant for admission. Okay, so an applicant for admission is anyone who is in the country who came illegally. Doesn't matter how long you've been here, doesn't matter you know how you got here illegally, you are currently in the country, and you did not come, for instance, on a visa and then overstayed it. So it's not that you're here illegally. Now, you came illegally and are in the country, you are an applicant for admission. Okay, number two, in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under this other section for their removal. Okay, so, David, that section says, if you are an applicant for admission, meaning you have been found to be in the country and have come here illegally, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, you get detained. You must be detained. So, David, the question for the court in this case is, is an applicant for admission different than an alien seeking admission, or are they actually referring to the same group of people? It's a Venn diagram that is a perfect circle on top of a circle. And, David, in order to understand how we got here, we're going to go back to the interim docket, because, remember, they had that Alien Enemies act where they kind of rule for the Trump administration, but also very much rule against them in holding that, no, you can't issue these injunctions for aliens that are being held, you know, classes of aliens, but aliens are absolutely entitled to habeas relief. And so now the courts have been flooded with thousands of habeas petitions from aliens that are being detained. Okay, so this is an example of one alien being detained who has been in the country for a long time, came illegally, didn't commit a crime. Is he an alien seeking admission? Even though he's been here for a long time, he's not seeking anything. He is an applicant for admission, or is an applicant for admission the same as an alien seeking admission, in which case he shall be detained. This is where I talk about the administration being very smart about how they did this. So as I said, thousands of habeas applications across the country. The fifth Circuit is the first one to decide this at the circuit level. District court judges, by and large, have all ruled against the administration. They have said that there is a difference between an applicant for admission and an alien seeking admission in that statutory language. And therefore, someone who has been in the country for decades or whatever, came here illegally is not seeking admission any longer. They belong to a different statutory provision that we'll talk about later. But the administration through, as we said, lots of pretty smart shenanigans. I don't mean shenanigans in a, in a morally bad way at all. I just mean like they gamed this out really well.
- [35:41]
B
And forum shopping.
- [35:44]
A
Well, kind of yes and kind of no. Right? You don't appeal them all. You release those aliens and they have a pending case in the 7th Circuit. But they worked pretty hard to ensure that the fifth Circuit case would come first. And here is from the dissent and the fifth Circuit explaining it. Despite the long period of undisturbed interpretation of the statutory provisions at issue here, the government has insisted that we take up this issue with unprecedented urgency in a matter that does not reflect the gravity of the outcome petitioner faces. After our court granted the government's request to expedite this case, the government requested that we further expedite our disposition of the case by issuing an order resolving the appeal with a notation that opinion would follow. This request appears to be virtually unprecedented in this circuit. Notably, as of February 5, 2026, the government has not made a similar request in its case pending before. The 7th Circuit, the only other circuit that has thus far heard the government's argument on this statutory issue. So. Right, David. They avoid appealing in the circuits that they don't think they'll win in. They want to get to the fifth Circuit. First one ends up at the seventh Circuit, but then they tell the fifth Circuit that this is super, super urgent and they need a decision even if they don't have an opinion. Go, go, go. And the 5th Circuit does in fact decide this very, very quickly. It's a two to one decision with Edith Jones, the judge that I clerked for, writing the majority opinion holding. In short, David. Yeah, there's no difference. An applicant for admission is the same as an alien seeking admission, and therefore the aliens must be detained without the potential for bond or release into the interior. David, I have a feeling that you have thoughts.
- [37:29]
B
Yeah, I have thoughts about this. I mean, let's just zoom out essentially what you're saying. This, what, what is happening here is the court is essentially saying that Congress has mandated, in what it amounts to, almost indefinite detention. And by indefinite, I don't mean lifetime. I mean there's no set specific termination date for that detention, indefinite detention for people who are engaged in a civil removal proceeding. So in other words, this is not a criminal proceeding. I think this is really important for people to understand. If you come into America illegally, there is a misdemeanor level federal crime for illegal entry. If you overstay your visa, that is not illegal entry. You've come in legally, but you also have no entitlement to stay and you are removed in a civil proceeding. So all, everything we're talking about here is, is civil, not criminal. These are not. This is not detaining criminals. This is a civil proceeding. And then we're saying that Congress has mandated, as the dissent says, I think pretty effectively the mandated, the indefinite detention of millions of people if they are, if they are rounded up millions of people. The Congress passed, as he says, the Congress that passed the iira, I love these acronyms, would be surprised to learn it. It also required the detention without bond of 2 million people. And so my problem with the majority opinion is statutory interpretation is supposed to give credence to all of the statutes, to harmonize all of the statutes. And they look at this 121, 225, which has an applicant for admission essentially say that every single person who's present in the United States is in this cat, who, who's not been admitted or arrives is in this category. But then there's this whole other statute, 8 USC 20, 12, 26. It says on a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Now, this is a little bit broader than just people who are suspected of illegal entry. It can, you know, it conclude other categories of aliens. But if you look at the majority's reasoning, 1226, which permits but does not require a bond, but allows for a bond, that that's essentially a dead letter. That's absolutely a dead letter. And that, and that the really relevant language is this other language. Whereas there's been a long standing sort of view that 1225 and 1226 work differently for different people. 1225 is something that seems to be much more likely to be used. If you're talking about the summary removals that occur when people cross the border and they're detained briefly and then repatriated back to Mexico or wherever. Whereas if you're talking about somebody who's been living and working in the United States, then In that circumstance, 1226, there's a. There's a warrant that is issued, then you are detained, and then there is a decision. And when you are detained, there's the possibility of a bond. All of that makes complete sense within the American judicial system, which, by the way, is very keen, you know, about no excessive bail. For example, there was a real problem if you look, if you go back and you look at colonial era and early American era, the idea of indefinite detention, even for civil matters, for example, like bank, you know, detaining people in bankruptcy, that there was a real problem with the way in which extraordinarily excessive detention policies came into play before any sort of adjudication. And so I think if you're going to harmonize 1225 and 1226 with the American Constitution, this idea that 1225, regardless of what 1226 says, mandates the detention of millions of people for an indefinite period of time, I don't get how the majority is harmonizing these two statutes.
- [41:47]
A
SARAH okay, let me try, because I agree that the best argument for your side is the historical argument that the way that it has, these two statutes have been used, as you say, 1225, is we just caught someone crossing the border and we're going to flip it and reverse it. And 1226 has been, we have found you. We believe you are illegally present here for whatever reason. You overstayed your visa. You crossed 20 years ago. Doesn't really matter. You fall into this other category. Maybe we can detain, like, we can detain you if we want. We can issue a bond if we want. By the way, the Attorney general at any time may revoke that bond. And none of it's reviewable by courts. But there are regulations about the internal process due within the executive branch, appeals to the Board of Immigration Appeals, things like that, findings that they must make as to why they revoked the bond, et cetera. So a bunch of internal executive branch process is due per regulation. Okay, but DAVID so that's your best argument historically, you're exactly right. That's how it been used. However, the alternative is that that was actually just a misreading of the statute that 1225 applies to anyone who illegally entered the country. They were illegal from the moment they got here. It doesn't matter whether we caught them at the border or they made it all the way up to Poughkeepsie once we got them and we know they illegally entered, you can detain them and flip it and reverse it, basically. And that 1226 applies to everyone else who is here illegally, as in you overstayed a visa. It turns out, you know, you were on temporary protected status and that has expired. You were here due to fraud, for instance, and that fraud has been discovered since then, yada, yada, yada. And so 1225 is much broader than it had been historically applied. And 1226 applies to the sort of. And everyone else. And that turns on, again, this statutory language construction question. Applicant for admission applies to everyone who came illegally, no matter how long you've been here. If you came into the country illegally, you committed that misdemeanor. Like you explained, David, you're an applicant for admission, but are you an alien seeking admission? Now, the argument from the other side is that seeking is a present tense verb. You must be doing something currently if you're seeking admission. The majority argues that, like, no. Like, if you applied for college, for instance, this is the example that they use. And you hit submit on your application, and a month has gone by. You are an applicant for admission, and you are seeking admission even though you are not currently doing anything because you already sent in your application. The dissent and the other judges who have seen this have basically said, like, no, it's more like you entered a movie theater unlawfully, like, without a ticket. Sorry, unlawfully. I don't know why I'm using fancy words for that. You jumped into a movie theater, right? And you're sitting in the movie. You are no longer seeking admission to the movie. You're already in the movie, right?
- [44:59]
B
You're there.
- [44:59]
A
You're already there. My take on this, David, is that this is actually a very close call just on the statutory language, because I agree that if you're already in the movie, you're no longer seeking admission to the movie theater. But I would have said that about an applicant for admission to the movie theater, that once you're already in the movie theater, you're no longer an applicant to get into the movie theater either. But Congress very clearly defined applicant for admission to include those already in the movie theater. They just didn't ever define aliens seeking admission. Now, again, the dissent slash. Other judges who have seen this have argued that seeking admission must mean something different than applicant for admission because they are used in the same statutory provision to remind you in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained. Well, why not just use applicant for admission a second time if the definitions are exactly the same? So their argument is there are multiple elements. One, you must be an applicant for admission. Two, you must be an alien seeking admission. And three, it must not be clear and beyond a reasonable doubt that you're entitled to be admitted. And so therefore applicant and seeking admission have to be different in some way. As I said, David, I actually think this is pretty hard because frankly, at the end of the day, we have no idea what alien seeking admission means. Because while they defined all these other terms, they just didn't define that. And so here we are, you know.
- [46:28]
B
And when we're talking about is applicant seeking admission or applicant for admission and app. And alien seeking admission, are they the same thing? There would have been a really good way to make sure that they were the same thing.
- [46:40]
A
Use the same words. I know.
- [46:42]
B
And if you don't use the same words, Sarah, then assume it's prima facie evidence that it's not the same thing. And so I think that that's the core problem here. And maybe the administrative. The Congress meant for them to be the same thing, you know, if you crawled into the heads of the people who voted. But it doesn't say the same thing. I think the dissent was exactly right to sort of highlight this idea that. Wait a minute. Under the majority's reasoning, we should be detaining millions of people simultaneously, like just millions of people right now. And when your statutory construction yields an absurd result, you gotta wonder about the statutory construction, especially when it really hinges on do these two phrases, which are different, in which contrast could have made them the same. I've got major side eye about this opinion. Major side eye. And I think there are 8th amendment issues here too.
- [47:40]
A
Oh, well, yeah. I mean, the fact that this is civil and not criminal and that Congress can dictate political permanent detention for someone because it's civil, not permanent, as you say, David.
- [47:50]
B
Yeah, indefinite.
- [47:51]
A
Indefinite detention because it's civil makes me very nervous. But that is not actually the issue in this case, though someone could bring that issue. Certainly we don't want Congress to come up with a murder statute and then say, yeah, but it's civil, so we can indefinitely detain people. Wait, if you don't have clear and convincing evidence that you didn't commit the murder, we could just detain you.
- [48:12]
B
Well, how about let's revive debtors prison, Sarah, if you can't abide by a judgment in court or you're late on your credit card fees, or that's all civil, and I'm going to just toss you in prison until your detain you. Sorry, Detain you until your relatives or your family can come forward with the money to satisfy the judgment against you.
- [48:34]
A
I mean, let me ask you, let me ask you this one, David. Okay, so applicant for admission, we agree, as anyone who committed that misdemeanor crossing illegally, do you agree that an alien seeking admission, if we were going to say they're different, that if you applied for asylum upon entering illegally, like, you get caught immediately, because this was the one of the cases that has not been appealed into the circuit yet, you get caught immediately upon crossing illegally, and they give you a little like, show up later thing, and you say you can't go back to Peru because you have fear of political retribution, et cetera. In that case, the judge also held that that wasn't seeking admission. And that, to me, would be almost the paradigmatic example of how the two could have separate meanings, but nevertheless still apply to large groups, you know, of people, et cetera, that like, you're an applicant for admission because you came in illegally, you're seeking admission once you apply for a site asylum. Now, what's weird about that is why did Congress then like, say we must detain everyone who came illegally but is also seeking asylum instead of those who came illegally but aren't seeking asylum, they just hung out and didn't apply for asylum. Those people we can't detain. We, we at least don't have to detain. But if you actually filled out your paperwork to apply for asylum. Nope. Then it's a shall detain, but, but otherwise, I don't know what seeking admission means. David.
- [49:59]
B
Well, you know, and the asylum point is interesting. And, and I also think that if you let me, let's do, let's do the impossible and try to crawl into the heads of Congress. So, and imagine that this is what they think the system is, and the system is the following, that if you come across the border or you're an asylum, you're seeking asylum, that the process to adjudicate your petition is short. It is you, it's a very short summary proceeding. There is due process, but it's a, it's a summary proceeding. And then you flip people in and out pretty quickly, right? That you, you, someone comes in, 48, 72, 96 hours later, they're back out again. Or, you know, if they have a very credible case, then it's determined that their case is credible. Maybe there's future Proceedings, maybe not, but then you're released into the interior. But that's not the way things are working. The way things are working, as we've talked about at great length, is the asylum system. Because the asylum system is so broken and under resourced and vague and all of the things that we talked about before, you do not have any such thing as a summary proceeding at all anymore. It, well, you do have some, you, you have a lot like right on. There is a kind of a, a quick proceeding that does occur, but for a lot of people there's nothing fast about this. And so then you're resulting in this sort of indefinite detention. So the congressional purpose of quick proceedings has been frustrated and now you have these indefinite detentions. And we're getting reports now people being in some of these detention facilities and camps for month after month after month in what looked to be utterly squalid condition. Conditions. I mean I, I'm very. The reports we're getting about the conditions in some of these detention facilities are appalling. We're only getting a partial picture. We don't know what's happening fully. But it, from what we see, a lot of. It appears there's a lot of really disturbing reports out there. And so people are being indefinitely detained. And the way I look at it is yeah, Congress can do a mandatory detention process that is time bound. But if you are not time bound, and that time time bound must be relative, pretty darn short. And if you're not time bound, then the 8th amendment is like this 800lb gorilla that is coming in and looming over the courts and saying you cannot detain people indefinitely for civil, for civil proceedings. You know that. That's why I think we, we might have this confusion is Congress just didn't have in their minds this idea of months long, maybe more than a year long to how, who knows how long detention in, in these mass detention facilities. They thought they were, they were legislating one system. There's an entirely different system. But the bottom line is the combination of the 8th amendment plus you got to give credence to 1226, it's there, it's in the books. You can't. 1225 does not swallow it all up. But the combination of 1226, the use of different statutory language and to me, Most importantly the 8th amendment hovering in the background means I think the dissent's right on this one. We'll see what the 7th Circuit says. But yeah, this, this feels express trained to the Supreme Court.
- [53:20]
A
I agree. Express train to the Supreme Court. When we get back, should you tell a judge that your job sucks?
- [53:29]
B
I have so many thoughts about this, Sarah.
- [53:35]
A
All right, David, we're back. So this saucer, that is someone who is a attorney at the department of justice, but not an assistant U.S. attorney who gets designated to go help salsas can also be, for instance, from local prosecutors offices and get designated as Special Assistant U.S. attorneys Salsas. Okay, so this salsa, she was actually at a different department of justice place and gets the designation to go out and help in Minnesota, is feeling, well, overwhelmed with her new job responsibilities. So let me read you what she said to the judge in question who was getting really mad that for in all of these habeas cases, David, where the judge has demanded the release of people who are being held under 1225, for instance, that that's not happening quickly enough. Now, remember we talked about how these judges are saying that their orders are being ignored. And I said there's a difference between sort of ignoring the subject, substantive, legal side of an order versus a resource side of an order. This is going to be all of that resource side. The judge is getting mad that the resources necessary to effectuate these orders are not being pulled in. As in, you detained a thousand people, but you didn't actually have the lawyers to like do the process side with thousand people. That's not my problem. You're ignoring my orders. And I just made that distinction so that people understand the difference between ignoring sort of the legal substantive side versus the resource side. Although in a practical sense, it doesn't matter, David. You ignored a court order and the judge get real mad, real mad. Okay, so the judge is real mad at this salsa, and here's the salsa. I am here as a bridge and a liaison because if I walked out, sometimes I wish you would just hold me in contempt, your honor, so that I can have a full 24 hours of sleep. I work days and night just because there are people still in detention. And yes, the procedure in place right now says sucks. I'm trying to fix it. Last night I had to stay up till 2:35am Just to get these documents ready for you. I can't say it's a waste of my time, but I could have sent so many more emails and gotten so many more people ready to be released. I am here with you, your honor. What do you want me to do? The system sucks. This job sucks. And I am trying with every breath that I have so that I can get you what you need. I share the same concern as you, your honor. I I am not white. As you can see, my family's at risk, as many other people that might get picked up. But again, fixing a system, a broken system, I don't have a magic button to do it. I don't have the power or the voice to do it. I can only do it within the ability and the capacity that I have. And every case I touch, I give it 100%. Now, David, some on the left have said refreshing candor. Some at the Department of Homeland Security have said she's fired and she was removed from her salsa designation. That it was unprofessional and unbecoming. Where are you, David?
- [56:34]
B
So when I first saw it and she said this sucks, this job sucks, my first inclination was, whoa, no, no, no, no, no, no. As then I read more about it. I'm still uncomfortable. I'm still uncomfortable. But I think I see her intent here, which was to basically say, make the resource argument, Sarah, that you're making, which is to say, judge, you're on me about this and I am limited in my ability to effectuate what you want me to effectuate. And I think that there is a better way for her to state that. But then when she's articulating it. Look, one of the first things to realize when you're an attorney talking to a judge is you're talking to a judge. Yes. Which requires a certain level of decorum. But you're also interacting with a human being and you're going to be talking about real world factors that impact your ability to do what the judge asks you to do. And that is not unusual in the court. The only thing that's unusual is really that line that my this job sucks. But when she says things like this, and this is in the larger transcript, I was put on this special mission to help with the US Attorney office with all the habeas claims that they've received. They are overwhelmed and they need help. So I, I have to say, stupidly. Stupidly enough to volunteer. I started with the agency on January 5th. As of today, it's been more than four weeks. I just got my PIV card to the DOJ system yesterday.
- [58:10]
A
Pave card is, by the way, you put it in your computer so that you could log into the system, which means she was literally not able to use her laptop.
- [58:17]
B
Yes. So this is the situation. You've got a lawyer who's volunteered for a special assignment, not in this area of law, dealing with extremely aggressive, rightfully aggressive questioning from a federal judge wondering what's going on. And we've talked about this earlier. There is a fine line you walk when you're saying, when the judge is telling you to do something that because of factors outside of your control, you cannot effectuate. And how do you deal with that? What do you do with that? And I think that saying, your honor, due to factors outside my control, I can't effectuate it, but I'm really, really trying hard to make this happen is a completely acceptable response that was colored by this job sucks. And so that was like the, you know, I keep using this analogy because I'm in love with it, which is, what's the salad? And what are like the croutons? The salad here is fine. She's saying that we're overwhelmed, we don't have resources, et cetera, et cetera, which is a different thing from saying we're just not going to comply. That's a different thing. And it's a very important thing to say to a judge.
- [59:25]
A
And.
- [59:25]
B
And then she threw some little tasty croutons on top about the job sucking and some of the other details. But the thrust of what she said, I think was fine. And, you know, the bottom line is she has a duty of candor to the court. Now, candor doesn't mean I was up till 2:35 in the morning. That's like, that's extreme candor. But she does have a duty of candor to the court. And the duty of candor means that you're not going to pretend that you can do what you cannot do. You're not going to tell the court and make promises and guarantees to a court that you cannot make or nor are you going to misrepresent the state of your own client's capacity to comply. Now, it could be that your client can't comply because of a cascaded series of major mistakes that made beforehand. But right now, you're the sort of the point of the legal spear, and you have to be able to tell the court, can we do this or can we not? And the way I, you know, there's a great substrate substack on law dork that really walks through all of this. And we'll put this in the, in the show notes, but it's very clear for me that this was an attorney Kim who has come in, thrown into the fray, is immediately realizing that there is court frustration that she cannot address. She cannot do it. And so what do you, what do you do in those circumstances? So, yeah, I did not like some of the language. You know, this job sucks. It was too Informal. Etc. But when you look at the larger context. I don't know, Sarah. I mean, what do you do when you're a law. In a lawyer, in a. In an. Just an almost impossible situation? And sometimes what you do, to be honest, is you kind of throw yourself at the mercy of the court and you say, your honor, I'm in an impossible situation here. And that is not unusual. I have been in courtrooms where that happens. I have been in cases where my opposing counsel does that often when representing major government institutions that have a real trouble. Like, let's say, for example, a real life situation. I had council. You're going to make the university president available for a deposition? Yes, your honor. University president is in Greece right now. I can't remember that country. Well, opposing counsel's notice of deposition for exit Y date. Well, your honor. And then you get into this point of how. How quickly can you get a president back from overseas? There's a lot of moving parts in these big bureaucracies that are not immediately available to the attorney for the bureaucracy to trigger. And so it just makes it difficult. I don't know, Sarah. I. I had mixed feelings about it. I like the. The language she used describing the situation she's in. Fine. In my view.
- [62:12]
A
Yeah. But that is the. No one has a problem with her describing the situation she's in. Your honor, we are trying to meet your orders. Here is what we are doing to meet them. Here are the obstacles we are facing to meet them. We have resource constraints. I am but one person. I am working my hardest. I'm giving this case, as with all my cases, 100%. That wouldn't have made news. What made news is her saying, the system sucks. This job sucks. Like, it is the way she said it. So I don't think this is a close call. If you can't go into court and act like an officer of the court, as a professional, then you're gonna get blown up.
- [62:47]
B
I don't know. I've seen a lot of informal stuff in my time, like just so much informal communication with judges. I don't know. I don't know.
- [62:56]
A
But you know what you haven't seen? My client sucks. Like, when you're saying that, like, you can't get the university president overseas, you don't see the lawyer on the record in the courtroom saying, my client sucks. Your honor, I don't know what to tell you. They really blow. Like, that would get you in a lot of trouble. And that's. I think that is the equivalent of what we have here. Now, I will also say, as someone who has worked many a sleep deprived job, probably all my jobs before this one, David, involved a lot of sleep deprivation. It's not that I'm saying that she lacks character or is a bad person. None of those things, David. But do I think this was a good day in court or quote, involved refreshing candor? No. This should not be shown to law students as the way to do it.
- [63:47]
B
Oh, I do not think for a second that if I'm going to map out how you should do this, that that was doing it. I'm just saying you would if you've been practicing for a long time in litigation. This is not mind blowing at all. Like, not at all. I, I, I, I think that one of the things that makes this so prominent is because it's she did this. And this is again, not, does not. This is not. She shouldn't have done it. Absolutely shouldn't have done it. She, this is, this stuff is super high profile with people focusing just a ton on it. But I've seen more, I had seen more candor than this. I've seen a lot of candor with judges, especially trial judges. Just lots and lots of pretty blunt candor. So I don't know. I, you know, I, I've seen a, I've seen a lot that's very comparable to this.
- [64:43]
A
I will tell you, husband of the POD has never and with that, David, we, we did not get to our memorandum opinion from Judge Sutton about the administration's allegations against Judge Boseberg, which is almost the reverse of this in a lot of ways. So I'm going to hold that for our next podcast, as well as a few more nuggets that we have for people, some questions from listeners that I really liked and we'll do all that next time on Advisory Opinions.
- [65:14]
B
SA.