← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Roberts Court Shows Its True Colors
01:08:47
Using loopholes and cynical wordplay, the right-wing supermajority delivers a series of devastating decisions on legal immigration, plunging millions of lives into uncertainty.
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- [00:00]
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- [00:33]
Dahlia Lithwick
this episode is brought to you by Gab the youth mental health crisis is all over the news and we know social media is driving it. 45% of girls and 32% of boys feel overwhelming stress from being on social media, and together 25% of both feel worse about their own lives. Listen, I've watched firsthand what social media does to my boys and I am pretty comfortable saying it makes them feel small and sadder and less than. So here's the good news. A company called Gab is tackling the problem by doing something no one else is doing. Their approach is tech in Steps. TEC in Steps works by providing safer phones and watches for kids with no social media. Tailored to every age, from GPS tracking enabled watches for younger kids to phones with parent enabled apps for tweens and teens. I can't recommend Gab enough and right now use our code to get the best deal on a kid's phone. That will make parenting easier and give you more peace of mind. Visit gab.comamicus and use code amicus for an exclusive offer. That's GabGabb. This is amicus slate's podcast about the courts, the law, and the supreme court. I'm dahlia lithwick.
- [01:52]
Mark Joseph Stern
And I'm mark joseph stern.
- [02:01]
Donald Trump
An invasion of criminal migrants from prisons and jails, from insane asylums and mental institutions.
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Andrea Flores
This administration wants immigration itself, that status to imply criminality. And the Supreme Court is giving it more power to do so. And they already have. Enormous power.
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Donald Trump
We have a new form of crime. It's called migrant crime. They're having fist fights with our police officers right in the middle of streets.
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Andrea Flores
But I want every American to know if you think detention is bad now, if you think enforcement is bad, this decision unleashes something we haven't seen because the government has their information and knows exactly where everyone is.
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Donald Trump
Democrats say, please don't call them animals. They're humans. I said, no, they're not humans. They're not humans. They're animals.
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Andrea Flores
You can't be a conservative. You can't be a textualist. You can't believe in the ordinary person's view of the law. If you look at those statements and don't believe race was involved in this,
- [02:51]
Donald Trump
they're poisoning the blood of our country. That's what they've done.
- [03:01]
Dahlia Lithwick
Donald Trump ran for office threatening to use mass deportations, closed borders and emergency wartime powers to, quote, clean up America, which he described as a garbage can for the world. From the first rendition flights of prisoners to seacot torture prison, to the unlawful order rescinding birthright citizenship, to the roving ICE raids on courthouses and schools, immiserating, abusing, terrorizing, and humiliating those who had the temerity to seek refuge. And a better life in the shadow of the Statue of Liberty has been the goal.
- [03:40]
Mark Joseph Stern
This past week, we learned yet again, as we have seen since the start of Trump's tenure, that the conservative supermajority works hand in glove with Stephen Miller, Christy Noem, Mark Wayne Mullen, and the other architects of immigration cruelty to ensure that America can again be bleached its multicultural, pluralistic impulses.
- [04:00]
Dahlia Lithwick
This week saw a series of cases handed down from the Roberts Court six that made good on Donald Trump's campaign promises to ensure that asylum seekers, green card holders, and temporary protected status recipients would be left with fewer protections and greater exposure to genuine harms. And they did so by way of cynical wordplay and loopholes.
- [04:23]
Mark Joseph Stern
Joining us today is Andrea Flores, founder of Securing America's Promise. Andrea has nearly two decades of experience shaping US Immigration policy at the highest levels, including roles at the White House, National Security Council, Department of Homeland Security, and in the US Senate. Beyond government, she has led national policy work at the ACLU and forward us and advised a presidential campaign, giving her a rare 360 degree view of both policy and politics. She's a graduate of Harvard College and Columbia Law School.
- [04:54]
Dahlia Lithwick
Andrea Flores, welcome to Amicus.
- [04:56]
Andrea Flores
Thank you so much for having me.
- [04:58]
Dahlia Lithwick
So I think I want to start, Andrea, by saying that one of the things, things that is so destabilizing and cruel about just the last year and a half is the sheer speed of change, the velocity at which the lives of literally millions of people living in America have been upended. And I wondered, just to set the table, if you could start by giving us a sense of the scale of the upheaval unleashed by this administration and then by the Supreme Court just in the past week in the world of immigration law, Absolutely.
- [05:32]
Andrea Flores
I mean, this is one of the most stunning weeks for the administration's mass deportation agenda, which I always explain to people. Really, it has two Parts, it is to deport as many undocumented immigrants as possible, which I'll remind listeners, is 14 million people in this country. But there was a new chapter that I think people realized slowly over the last course of the year, which is to also take legal status away from as many immigrants as possible. So the Supreme Court decision about temporary protected status, it's an insane decision for a couple of reasons, because it could lead to 1.3 million legal immigrants losing their status to be here and make them subject to deportation. And for the first time in modern American history, we have a president whose intent is to increase the number of undocumented immigrants in this country. Everybody has always promised the opposite. They said, we will legalize them, will give them a path to citizenship. Since President Reagan, that was the plan. And now we have potentially a new population of 1.3 million people who could be subject to deportation.
- [06:44]
Dahlia Lithwick
And, Mark, maybe we begin with the decisions that go all the way back to Tuesday with this green card ruling. It's not a blockbuster. It's not like the TPS case or the asylum case that Andrea just referenced. But it certainly continues this very frightening Trump administration trend of treating green card holders as supplicants who are here at the sufferance of the government and maybe more frighteningly, treating Border Patrol officers as judges and juries in a way that I have never experienced. So can you just lay out, you wrote about this earlier in the week, what the court decided in terms of green card holders this week.
- [07:27]
Mark Joseph Stern
Yeah. And in retrospect, I think this decision, Blanche v. Lau from Tuesday, was like a preview of what we would get on Thursday and also of this dynamic that Andrea is describing of the Supreme Court just twisting statutory text in any way it needs to to facilitate Trump's deportation agenda and his broader disrespect for immigrants, including lawful immigrants. In this case, by a 6 to 3 vote, the majority declared that border officers do not need clear and convincing evidence that a green card holder committed a crime of moral turpitude before treating them as not a green card holder who' already been admitted to the country, not as a lawful permanent resident, but as an applicant for admission who may be denied entry, turned away from the country, detained, or at best, conditionally allowed into the country on parole. And often in these circumstances, when a border guard makes this determination at the border, they take away the individual's physical green card, leave them in this kind of legal purgatory. They may lose their work authorization. They are more susceptible to detention and deportation. And like you say, Dalia this puts so much power in the hands of border guards to really, I think, persecute individuals who the US Government has deemed to have a lawful right to be here, people who have been thoroughly vetted and screened, who are just one rung below US Citizens. Right. The amount of disrespect I think that this decision showed was like the clue that this conservative supermajority is not going to effectuate Congress's intent to extend meaningful rights and protections to lawful immigrants or to asylum seekers or to TPS holders. Right. It's going to reread the laws, however it needs to, to give Trump a license, to turn these people away, detain them, or expel them to a country where their lives may be in danger.
- [09:28]
Dahlia Lithwick
And Andrea, I guess, had the other two cases not come down on Thursday. This is on its own terms, a really chilling decision. And I guess I want to ask what this does in terms of destabilizing the rights of green card holders. And if you're an attorney advising somebody on a green card traveling to the US after this ruling, what are you telling them?
- [09:51]
Andrea Flores
To me, this was the first big legal decision that was affirming what the administration has been trying to do with green card holders, which is typically, as Mark said. Right. I mean, these are people that the United States has decided can become citizens after a period of time. They can naturalize. We have just millions of green card holders who also can naturalize in the next few weeks, but they can't afford it. So, remember, many of these people are just a few papers away from being citizens. And so it is affirming this new strategy, though, of at any time, a border patrol officer, a customs officer, can now almost become an adjudicator of these cases at ports of entry when they're traveling. And so I was very alarmed starting last year. I mean, this started with Mahmoud Khalil, when there was a justification to target a legal permanent resident. This case has to be seen in that context, because what you've seen is at airports, they're turning them into the type of essentially border checkpoints that you would see operating legally 100 miles from the border. Like where I grew up, I grew up in a border community where every time you went through a checkpoint, you needed to be prepared to have, even as a. I'm a citizen, a Mexican American, you needed to be prepared with your documents. So I don't know if people appreciate just how impactful the group card decision will be in empowering agents to racially profile, to wrongfully detain people at Airports, more mistakes will be made. And it really reminds me of just this complete erosion of due process, this idea that you don't need to have a conviction in hand, proof, clear and convincing evidence. I mean, this administration wants immigration itself, that status to imply criminality. And the Supreme Court is giving it more power to do so. And they already have enormous power at airports. They already have enormous power at ports of entry. Many people focus on ice. I say, please focus on border patrol customs officers, because they are deeply embedded in our daily lives. And I have told people since last year to reconsider travel domestically and internationally.
- [11:58]
Mark Joseph Stern
Let's turn to the asylum ruling now, Mullen v. Alo Torlodo, which requires understanding how asylum seekers, how refugees ask to gain these protections of asylum in the United States. And before we get into the legal nitty gritty, can you just talk about why U.S. law does allow them to make this request for asylum at the border. What was Congress trying to solve for here?
- [12:24]
Andrea Flores
This law comes out of the 1980 Refugee Act. And Congress finally joined other nations post World War II, who, they all beat us to it, but deciding that a concept called territorial asylum was necessary, necessary to prevent the type of harm and tragedy and just record loss of life from the Holocaust. Right, because if you turn around immigrants who are arriving and then they are then sent back to countries where they face persecution or death, the United States recognized and Congress recognized that we had an obligation not to do so. And that was an important post World War II global consensus. But that consensus, I will say, Mark, has been crumbling for, for quite some time. And I have a lot to say on the asylum opinion, because this is something I've written the most about. But in this case, what people need to understand is asylum is a procedural right where if you reach the border, you have a legal right to claim fear, and there is a screening process and you will be interviewed and you should not be returned if you could potentially meet what is intentionally a low credible fear threshold. Congress was intentional to make it easier to claim asylum to avoid the massive harm that could happen if you turn someone away from our land borders. And that has been in question now since the Obama administration where I worked. This case arose from a 2016 Obama administration policy called metering, where instead of allowing asylum seekers to reach ports of entry, they physically would block them. And I always say the border has been run with a patchwork set of policies now for the last decade. And so it was interesting for the court to weigh in on this because asylum has been eviscerated by this administration already, and they actually didn't even need this tool. They're deporting asylum seekers at the border. It doesn't matter if you reach the border or not. I don't know even why the Supreme Court took this case, but I wanted to lay that out because it will lead to more people being returned to harm. And Justice Sotomayor's dissent was very explicit in the types of cases where the United States has been directly responsible for someone's loss of life.
- [14:34]
Mark Joseph Stern
Yeah. And you mentioned the Holocaust. Justice Sotomayor gets into this. Right. The whole problem that this law was trying to solve for arose during the Holocaust when Jewish refugees came on a ship on the Ms. St. Louis to the United States seeking refuge. And even though they could have docked and could have unloaded and could have been protected, the United States refused to let them and turn them away and prevented them from actually disembarking and sent them back. And many of the Jewish refugees on that ship were eventually murdered in concentration camps. And so, like, we have this historical example that Congress was building off of saying, we need to not let this happen again. When people arrive at our border, we must allow them to apply for asylum, because that's how this has to work. Otherwise, asylum is a completely empty right. We can just turn people away and prevent refugees from ever seeking it. But that's kind of what this decision allows, right?
- [15:31]
Andrea Flores
It does. This is where the politics are not matching up with the legal realities. And where you have Democrats. I know a lot of my former administration colleagues breathed a sigh of relief yesterday. They were happy the Trump administration won because there has been such since the Biden administration with the numbers we saw at the border. Asylum seekers have been really politically targeted by both parties now, as they use a phrase, they're using the back door. They are doing things the wrong way. Well, what's so interesting about metering is that involves a group of immigrants who were trying to go to an official port of entry to present themselves to access it the right way. And not even they can go and access a right that Congress. It is plain in text in statute. There's no question there. So I think it's a really interesting case in our current politics because to a lot of people, asylum means border security now. And what I always say is, no, Congress was very clear about what it wanted to do. But what many people don't realize is they never built out a process at the land border. And I take this personally as someone from a border community. They never made a process that really worked at the border for people to come forward. Because right after the Refugee act was passed, El Salvador descended into civil war. And so a lot of people in Congress said, well, we didn't mean El Salvadorian asylum seekers, we meant people fleeing communism. Right. So we've had a complicated relationship with asylum for a long time, but this just opens the door for more people being turned away. It layers on top of many restrictions that have been in place in the last five years.
- [17:09]
Dahlia Lithwick
I want to pull on a couple of things you've both said. One is we have now reinstated a policy where you can literally bar the door, right? You can stand at the border and say, if you don't enter, it's like you don't have an asylum claim. That's astonishing for the reasons Mark just said. I think the other thing that is, it seems to me really essential, let's just say it, asylum seekers. We're going to get to this in a minute. With temporary protected status, are not on a path to citizenship. Have this panoply of rights to, you know, do all the things. And so this gets conflated with a very, very thorny conversation about, you know, too many people are coming. These are people who are legitimately cannot go home. And I just think it's really, really important to say that part of the sort of fear mongering discourse here suggests that, well, and therefore they're never going to.
- [18:07]
Andrea Flores
Oh, my gosh, yes. I mean, this past week when I was talking about both asylum and temporary protected status, there was just an immense amount of online criticism of me for saying, well, these are supposed to be temporary programs. They never should have been here. There is some stunning focus group and polling data that says that most Americans think immigrants came here illegally. And we have to recognize the political context of that in which you've had a national leader for the last 10 years using the bully pulpit to make that claim when most immigrants actually come to the United States legally. And so the politics of this issue cloud the very concrete legal categories that people are using to do things the right way. And it's really sad. I mean, it just shows how important podcasts like this are. And just talking about this issue are, because I've encountered many people in my own life and say, well, all the TPS people here entered illegally, right? And so it's just about that. And I'm like, absolutely not. I mean, that's a whole other issue.
- [19:07]
Dahlia Lithwick
We're going to take a short break. It has been a frantic and frankly depressing few weeks here at Amicus.
- [19:15]
Mark Joseph Stern
Yes, We've been tracking all the terrible decisions from the Supreme Court and breaking them down for you with emergency episodes and in depth conversations in our regular weekly episodes.
- [19:26]
Dahlia Lithwick
The end of this Supreme Court term has left us with many questions like what does the law mean if some members of the Court are prepared to make it up on the spot?
- [19:37]
Mark Joseph Stern
What does the Constitution mean if it can only be decided by six right wing extremists in robes?
- [19:44]
Dahlia Lithwick
And what can we do about it?
- [19:47]
Mark Joseph Stern
So this end of term we are tapping the smartest legal minds we know to ask them those questions and more. And you can be part of the conversation.
- [19:56]
Dahlia Lithwick
Yes, on July 10th, we're going to be gathering online for our annual Breakfast Table, a hallowed tradition that involves neither breakfast nor table, but does involve a panel of legal all stars and exclusive taping attended by PLUS members only. And a special question and answer session, again only for our Amicus Plusketeers.
- [20:21]
Mark Joseph Stern
If you want to join us for this illuminating and indispensable end of term conversation, go to slate.combreakfasttable Breakfast table is all one word. That's slate.combreakfasttable.
- [20:39]
Dahlia Lithwick
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- [22:26]
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- [23:00]
Dahlia Lithwick
Let's return now to my conversation with Mark Joseph Stirring and Andrea Flores. Mark, do you want to talk for a minute about the opinion itself? How does Justice Alito get around the relevant, and it seems fairly clear statutory language pertaining to arrival here? And Andrea, please feel free to jump in if there's anything you wanna add to that.
- [23:25]
Mark Joseph Stern
Yeah, I mean, I think we just start with this background of what we know Congress was doing because it told us, right, that the whole point of this statute and all of its predecess since Congress decided to join the world in establishing this right was to ensure that someone who arrives at the border can apply for asylum, to ensure that we don't have a repeat of World War II when we have people fleeing the Holocaust arriving at the border and being turned away. So the current version of the statute allows an individual to apply for asylum if they arrive in the United States or if they are physically present in the United States. So I think reading that language, you might think, all right, there's two scenarios here. One, you arrive in the United States, you're at the border, you make the request for asylum, or you're physically present, United States, you're already here, you've crossed the border in some way so you can make this request for asylum. Alito collapses these two different scenarios into one. And he says, oh, the word in must mean physically present in the land of the United States, in the actual physical jurisdiction of the United States. And so if you are on the other side of the border and you have not stepped foot onto US Soil, then you have not, not actually arrived in the United States. And so you, despite being a refugee who may have a perfectly legitimate claim for asylum, can't make that claim because you're not here. And what Justice Sotomayor points out, and I just think she's so obviously right, is that this makes the statute incoherent. It doesn't make any sense anymore. Because why, if that was Congress's intent, would it then establish the same set of rights for people who are physically present in the United States? If Alito is correct that only people who have arrived in on the soil of the United States can apply for asylum, then there was no need for Congress to add this other provision that specifically clarifies that someone who's physically present in the United States also gets to apply for asylum. It violates what's called the canon against surplusage, which is just a fancy term to mean that Congress doesn't say the same thing over and over again. If it has different provisions in a statute, you're supposed to assume as a court that those provisions mean something different. And so through this kind of hyper technical reading of the word in the preposition in Alito is able to blow up the statutory scheme and deprive people of the right that Congress very explicitly said it was trying to grant.
- [25:51]
Andrea Flores
Mark, you hit it. I mean, that's exactly right. It could not be more clear. Territorial asylum. You should be able to present yourself and not be physically blocked. I always try to describe to people how rudimentary something like metering is. It involves officers physically going out, standing in a line, saying, do not come when there are cars and people walking through the ports of entry, showing that they are able to process and inspect and do their job. But it also goes to this strange gap in the law and in the way since even the Clinton administration has implemented asylum. And it goes back to really not thinking about border communities as just American communities who need systems at work. I always tell people there isn't like a line for asylum seekers to go into. So then it allows policies like metering to arise, and it allows Justice Alito to do this. I mean, I love the usage of the word surplusage, like bend himself backwards to be like, there's no way that they could make it to the port. Right? And that they have absolutely no rights. Even though does someone have a right when they have a traveler's sort of visa driving across the border, or will they block their car? I mean, that is as ridiculous as what we're talking about here.
- [27:06]
Sponsor/Advertisement Voice
So.
- [27:06]
Andrea Flores
So the theme of everything that the court did in the last week is the result of Congress also not modernizing or revisiting or creating any reasonable procedures for people to follow. The immigration system was not designed for people to be able to follow a clear set of rules.
- [27:24]
Dahlia Lithwick
Can we talk for one brief moment about Justice Sotomayor's dissent? Because she starts with the ship that's turned around of people who are fleeing the camps in Nazi Germany. And I just want to give either or both of you a chance to just reflect briefly on what it is she's trying to do. I was struck on Thursday in the face of Sotomayor's dissent with this response of, oh, she's just shouting into the void, this doesn't matter. It seems to me she was trying to make a point that mattered an awful lot. But maybe we'll start with you, Andrea. What is it she was trying to do here?
- [28:05]
Andrea Flores
She's using the dissent as a political tool, as it often is used. It's political and it's legal to remind everybody that Congress already answered that the United States of America has made a commitment not to turn people back to persecution. And she is also writing this in the context of that political history I just gave in, which, starting with the Obama administration, through the first Trump administration, through the Biden administration, when I worked in the Biden White House in the first year of his administration, we did turn people back to harm. And I want to acknowledge that. Right. And she has clearly followed those cases that were documented and what happened to people because there were policies in place called Title 42. Turn back policies is what they call them, because it sounds orderly and it sounds like we'll just quickly turn people back if they reach our border. Those cost people their lives. And she is reminding us of that cost. And I don't want to even think about the number of people that were impacted. And I left that administration because of a lot of disagreement about this policy. And I'm so grateful as an American that she is reminding us of that commitment in this moment when I think Congress is not that far from probably eliminating the asylum statute as we know know it.
- [29:23]
Mark Joseph Stern
Geez, that's horrific to think about. I have very little to add, but I will say that there's been a lot of centrist liberals and moderate Democrats complaining about asylum in the last few years and accusing asylum seekers of abusing the system, you know, overwhelming the border and making false claims of asylum. And I guess I just want to remind them that there are horrors all around the world and there remains extraordinary persecution and violence and poverty all around the world. And there are many people who have completely legitimate claims for asylum that I think even these, like, centrist libs would acknowledge. And what you're saying when you say, oh, the asylum system is being abused is, well, they shouldn't really get a chance to make their claim. They're just flooding the system and overwhelming the country. And we need to keep them out because they don't have a legitimate right to be here. For a nation built by immigrants, founded on the idea that we should allow in people who want to be American, who want to seek our promises and our freedoms, that at a bare minimum, those fleeing persecution need to be given the legal right to do so. And that was the lesson I thought we'd learned from World War II and the Holocaust. And I guess it's a lesson that we just have to forget and then keep learning over and over again.
- [30:34]
Andrea Flores
I think so, because what both parties are forgetting is that asylum is a legal pathway. And it's so interesting because I work in D.C. i work with a lot of former government officials. And what I ask is, I say, do you want to shut down asylum? And they say, yes, because it's a backdoor. They shouldn't be coming this way. I'm like, well, which way would you like them to come? Because you have not advocated for an alternative. And so I think Justice Sotomayor just did a masterclass in explaining to the country how ridiculous this has all become and the human cost of it, most importantly.
- [31:05]
Mark Joseph Stern
Yeah, like, my grandfather came here after he survived the Holocaust. Did he have a right to come? Who decides that? Why did he have a greater right to come in the 1940s than someone who's being actively persecuted by the Salvadoran government today, a government that we are actively supporting in its persecution and brutalization of its own citizens? These questions, when posed properly, cannot be answered by asylum skeptics. And unfortunately, I think that those skeptics help to create the kind of infrastructure that makes the public accept awful decisions like this one. Andrea, I want to turn to the other case while I'm on a tear. That was decided Thursday. It's so atrocious as well. This is the Temporary Protected Status case, or tps, Right. Mullen v. Doe. And in some ways, this decision is even more results driven and slipshod. Maybe you can just start by describing the TPS program itself and how it's meant to work and what the Trump administration did in these cases. That completely flies in the face of how Congress instructed the executive branch to carry out this decision making.
- [32:15]
Andrea Flores
Yes. So let me take you back to the year 1990. George H.W. bush was president. There was a bipartisan agreement that we needed a tool for when a crisis arose in another country, political, environmental, or, as the statute says, extraordinary conditions in which foreign nationals of that country could not go home, that we needed a way to stabilize their presence here. So give them a work permit, allow them to come forward, give them legal status. So from that policy discussion, the bipartisan policy of tp, TPS was created and presidents of both parties have used tps, with the exception of Trump this time. It's complicated, but. So TPS has been used in a bipartisan way since 1990. And there are about 1.3 million people living in the United States with TPS protections, as I said earlier. So some of them are immigrants from El Salvador who have lived here since the 1990s, immigrants from Honduras who have lived here since the 1990s. They are Haitians who fled the 2010 earthquake. They're Syrians who fled the civil war. They are people who have fled conflicts in Sudan, people who came from Afghanistan, people who came from Ukraine. You can turn on the news right now and see what is happening in those countries and know that it is probably not safe for those people to return home. So this has been so clear of a tool. It's one of the few tools that has worked sensibly and well, considering Congress hasn't updated it. But the administration wants to restrict immigration from a set of countries, predominantly those that we would consider in our racial structure as people who are black and brown and Muslim. And he has been slowly terminating TPS protections. One of the biggest was actually Venezuela last year, which the Supreme Court and the shadow docket really allowed that case to go forward. And let's just think about what TPS has meant for we have a huge earthquake in Venezuela. Seems like a huge mass casualty earthquake. That is exactly what the TPS statute is for, because right now we have 400,000 TPS holders from Venezuela that this administration would like to deport to Venezuela. Even in the midst of the earthquake, you do not send people back into the middle of disaster or conflict. But the Supreme Court didn't care about any of that in their opinion because they pretended that they were looking at at just the technicality of did the Department of Homeland Security consult with the State Department? And whether they did or they didn't, could courts review that procedure? I mean, just think about all of the history I just gave and how much they reduced it to a technicality and ignored the massive impact. For Haitians alone, there are 300,000 of them. For Syrians, there are 6,000 of them. And they just deeply ignored that impact. And we'll get into the dissents, but my goodness, I mean, what a disregard for what Congress so clearly intended.
- [35:06]
Dahlia Lithwick
Again, you're both saying both about asylum seekers and TPS Holders, something that is really important. I'm gonna be Captain Obvious. But the presumption that they are in bad faith, that they are lying, that they are trying to exploit the system, animates every aspect of both these decisions and the larger conversation. And, Andrea, I take your point, Mark, I take your point. You know, there are flaws with. But the idea that the presumption is that everybody. Everybody is fabricating pretextual reasons is so belied by the records in these cases in which people are suffering harrowing hardship. It takes a real act of willful blindness that you're flicking at here, Andrea, to say none of that matters because. Because everybody. Everybody is presumptively safe because we've decided that Syria and Haiti are safe. And so, Mark, it leads me just to. I'm sorry to make you be the Alito translator today, but I am gonna ask you to just explain to me, if you can, how Justice Alito gets to the place that Andrea just left off, which is that the decision by then Secretary Noem to simply say, we're done. These countries are safe, how that is, in his rendering, almost utterly unreviewable by courts ever. How does he make that move?
- [36:40]
Mark Joseph Stern
Like, Andrea already walked us through the whole case gets sort of boiled down to this series of technical steps that the government has to undertake before terminating tps. And the punchline is that the executive branch did not undertake those steps in this case properly. And the Supreme Court Court still let it get away with terminating TPS for Haiti and Syria and any future country that it wants because it concluded that the entire chain of decision making that's statutorily prescribed by Congress is basically voluntary because it's insulated from judicial review. So the court seized on this one sentence in the statute that says there is no judicial review of any determination by the executive branch with respect to the termination of tps. And what that had always been understood to mean is that the final call on whether a country should have a TPS designation extended does lie with the executive branch today, with the Secretary of Homeland Security. But before this case, I think it was widely understood that when Congress laid out the kind of legwork that has to be undertaken before reaching that conclusion, it didn't make it voluntary. It's mandatory. The Secretary does have to consult with other agencies. The Secretary does have to make these factual determinations about what's going on in these countries today. Perhaps most crucially, the Secretary does have to give at least 60 days notice before terminating TPS so that individuals who benefit from this program can know in advance that they're going to have their lawful status taken away from them and they can plan accordingly. None of this stuff is involuntary language in the statute. All of it is mandatory. And the lower courts, I think, quite rightly concluded that those steps do get subject to judicial review. They are mandatory. And if the executive branch skips them or screws them up, that can be reviewed in court, and it can be a basis for blocking the revocation of tps. And what Alito said in his majority opinion is actually, no, it is not mandatory because there's no judicial review of any aspect of the Secretary of Homeland Security's determination. That word, the designation, the determination, like all this language that seems to apply to the final Call, actually applies to everything that happens along the way, according to Alito. And so none of this gets subject to judicial review. There's one exception that we'll talk about in a second. But basically, even though the executive branch skipped or screwed up all of these steps, doesn't matter to Alito in the majority because it's all immune from the court's scrutiny. And that's the only way he can uphold these decisions by then. Secretary Kristi Noem, because otherwise they would obviously be deeply flawed and arbitrary and capricious.
- [39:28]
Andrea Flores
What a summary, Mark. That was really helpful even for me to just try and get to where Justice Alito was, which is absurd. There's so much administrative. I've worked on decisions of whether to issue TPS at the White House, the National Security Council. These are detailed foreign policy considerations and not just foreign policy. I mean, there's sort of the domestic administrative questions as well. And it just really struck me, your summary, again, just of how much he
- [39:55]
Mark Joseph Stern
overlooked one thing I do just to want. Want to dwell on for a second, Andrea, because you did spend time in the trenches here, is that like you were actually following these steps. The Biden administration and the Obama administration were actually following these steps. But the outcome and the upshot here is that the Trump administration doesn't have to at all. And I'm pretty sure this means that it can just revoke tps, not only for Haiti and Syria, but every other country, and take away people's lawful status overnight and in fact, insulate all of that from judicial review forever. Am I right about this?
- [40:26]
Andrea Flores
I read yesterday as opening the door to the delegalization of 1.3 million people.
- [40:31]
Mark Joseph Stern
Yep.
- [40:32]
Andrea Flores
Maybe this administration will spare Ukraine because they have such a clear racial ordering of who they believe deserve humanitarian protection. But other than that, everyone else comes from a country that would be considered whether they're Muslim, black, Latino. I mean, I don't see why Stephen Miller would allow any of that them
- [40:50]
Dahlia Lithwick
to continue to stay, which just is in some sense the actual embodiment. Right. Of the unitary executive on steroids. Right. That we have statutes, they have meaning. We're about to talk about. We have a constitution that has meaning. But now we are in a moment where if the administration does it, it's not illegal and it is this constant reification of the worst impulses of this administration, which is because I said so. And the court just signed off on that.
- [41:26]
Andrea Flores
It did. And this court, I mean, how many federal judges have criticized this administration on immigration cases, saying that you're not being honest, you're not complying with the basic procedures of your obligations as the Justice Department of giving us facts and participating. I mean, there's willful and wanton disregard for the judiciary by this administration. And the Supreme Court said we will absolutely not examine any decisions that impact immigrants. I mean, that has been a consistent theme from this court. I compare this case a bit to the Daca case in 2020, the deferred action for Childhood Arrivals protection, of which there was a smaller population of people. But you could read when Justice Roberts upheld that program that he was aware of sort of the political backlash it could cause. It now feels the court is more emboldened to say, I don't care if it's 1.3 million people whose lives we just put on the line. Right. That that it felt like the human interest was there in 2020. It doesn't feel like it's there for the Roberts court on immigration in 2026.
- [42:27]
Dahlia Lithwick
More in a moment with Mark Joseph Stern, Andrea Flores and me. And if you want to listen to Amicus and free, become a Slate plus member at slate.com amica+ NPR understands your curiosity is boundless, but your time is not. That's why they make up first the three biggest news stories of the day with the reporting and analysis. To understand them in under 15 minutes. Up first doesn't just give you the headlines, it gives you the context. That's what I like about Upfirst. Their correspondence can take a complex, often overwhelming story story like the Iran war and break down the latest updates in ways that I can understand and process. I really appreciated their recent coverage of the cases still pending at the Supreme Court this term. And a recent episode on the World cup truly illuminated how Donald Trump's America makes everything political, even a soccer ball. Up first is the difference between knowing the news and really understanding it. It not just what happened, but how it came about, why it's a big deal and what happens next. Follow NPR's Up first podcast so you can understand what matters and what happens next. It's hard news through a human lens.
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- [44:37]
Dahlia Lithwick
Let's return now to my conversation with Mark Joseph Stern and Andrea Flores. You made the point, Andrea, but let's say it again. So much of this happened in the shadows on the shadow docket, in unsigned opinions. In other words, they were sowing the seeds for this sense of it doesn't matter what we do anymore. We're just making it up as we go along. If President Trump wants to do this thing, it's A, an emergency, B, unreviewable. So in some sense, this is the natural conclusion of what's been going on since he took office. I guess I now reluctantly drag the constitutional issue in here, which is the part that got. I know, I'm sorry, y', all, but
- [45:21]
Andrea Flores
no, we gotta have to talk.
- [45:23]
Dahlia Lithwick
We gotta to talk about it. It is the part that got the most attention. And so the one way that Justice Alito gives a little ground for continued judicial review is right. There's a constitutional question because the plaintiffs, at least with respect to the Haitian plaintiffs, argue that stripping TPS from the Haitian immigrants violates equal protection. And that's because it's rooted in racial animus. And like I want to stop and play the sound of racial animus right now. Here's some of what Donald Trump has said about Haitians.
- [46:01]
Donald Trump
Why is it we only take people from shithole countries, Right? Why can't we have some people from Norway, Sweden, just a few. Let us have a few. Take a look at what's happening in Haiti. A tremendous problem with Haiti, aids, many of those people will probably have aids. And they're coming into our country and we don't do anything about it in Springfield. They're eating the dogs, the people that came in, they're eating the cats. They're poisoning the blood of our country. That's what they've done. They don't like it when I said that, and I never read Mein Kampf, they said, oh, Hitler said that in a much different way. And they're destroying the blood of our country. They're destroying the fabric of our country. Country.
- [46:48]
Dahlia Lithwick
And we can start with you, Mark, but Justice Alito writes this extraordinary. And what he writes and doesn't write is a whole other podcast, right? Because he doesn't even address what we've just played, but he just hands over a get out of racial animus free card to this president and allows them to say there's no equal protection question here. So you start, Mark, and I'm laughing, but I'm crying, y'.
- [47:16]
Donald Trump
All.
- [47:17]
Dahlia Lithwick
I'm just. This is like the anxious laughter of somebody who's melting. But Mark, go ahead. And then, Andrea, you take it from there. Yeah.
- [47:25]
Mark Joseph Stern
Well, I wish I could say that there's like one weird trick that Alito uses for absolving or laundering Trump's racism, but it's really as simple as refusing to look reality in the face. And I think there's a couple things going on here. The first is just interpreting Trump's remarks in the most charitable light possible or disregarding them altogether. I think that's why it's so important that Justice Kagan spent a page of her opinion listing out all of the racist things that Trump has said about Haitians to remind the reader, like, it's actually really obvious that this was racist and was motivated at least in part by Trump's racism, which would make it unconstitutional. Alito just fabricates all of these pretextual reasons why Trump might have wanted to terminate TPS for Haitians for economic reasons, out of hostility toward the entire TPS program. Out of doubt that really Haitians still need to be here and that they can't return to their home country. None of that's in evidence. Right? This is just Alito kind of spitballing, like doing the government's work for it. Because what's actually in evidence is a massive bucket of racism. And so it's, it's very, very sloppy. It's very, I think, like anti constitutional. And I think it reveals this pattern that we see in right wing ends driven jurisprudence of exploiting the Supreme Court's distance from the facts on the ground to make those facts look a lot less incriminating than they are, particularly in these Trump cases. Right. Like as this case comes to the Supreme Court, it's been a little while since it was litigated in district court, since the district court judges, it's actually two cases, did the fact finding and gathered the evidence and made their determination. And in theory, the Supreme Court is only supposed to review those facts found by the district court under a deferential standard, only supposed to overturn them if they're clearly erroneous. But what I think Alito does is exploit his distance from. From the actual cases and the actual facts to just kind of say, it seems fine to us, we're not too worried about this, because he didn't have to sit in that district courtroom as this evidence poured in and the testimony poured in and proof poured in that this was done out of racism. He gets to look at a cold record that by this point has been sitting on the shelf for a little while and pluck out the three pages out of 3,000 that maybe create a fig leaf of pretext that the Trump administration wasn't doing this out of racism and cite those as the lie. And while I'm on this rant, I guess I just have to sort of wrap it up by pointing out that, like, Alito is a guy who sees animus everywhere when he doesn't like the law in question or even the TV show in question. So he's complained about the Sopranos. He thinks that the Sopranos is fostering animus toward Catholic Italian Americans by sort of encouraging people to think of them as mafia connected. So the Sopranos, there's real animus. But Trump saying that Haitians are eating cats and dogs and poisoning the blood of America, no animus to see there. He's mad about the separation of church and state. In this case called Espinosa v. Montana, he said that all of these state constitutional provisions that restrict state funding for religious institutions were motivated by anti Catholic hate, that the state's real goal wasn't just to preserve the establishment clause, but to prevent the state from funding Catholic education and Catholic worship. And he sees animus when there's a civil Rights commission trying to enforce a basic non discrimination law that protects gay people.
- [50:57]
Andrea Flores
Right.
- [50:57]
Mark Joseph Stern
This is Masterpiece Cake Shop. And he said, no, no, no, that's clear animus. They're not just trying to protect gay rights. They're going after a Christian for being homophobic, and that's a First Amendment violation. But he doesn't see animus here. And he didn't see it in United States versus Windsor. Right. The DOMA case attacking gay people. He doesn't see it in all these other cases where he's unsympathetic to the parties, but when he's sympathetic, he sees it. And I just can't come up with any explanation for that other than egregious bias and partisanship. I welco counterpoint if one of you has to offer it, but that's where I'm landing.
- [51:33]
Andrea Flores
I have no counterpoint for you, Mark, because Justice Alito and the legacy. I think the legacy, one of the biggest ones of the Roberts court is the way it has treated race and the way it has taken every step possible to provide race neutral explanations for explicitly racial moments in the executive branch's policymaking. I think it's been the case since Shelby County. Right. They have been consistently going above and beyond past conservative justices in trying to set the date that racism is no longer an operative legal fact. And if you look at President Trump's statements, I mean, you can't be a conservative, you can't be a textualist, you can't believe in the ordinary person's view of the law. If you look at those statements and don't believe race was involved in this, I mean, it is preposterous. And I can't think of a statement now that Justice Alito would find to involve racial animus that impacts ethnic and racial minorities in this country because he has ignored it all and so has. You know, I keep thinking about the Vasquez Perdomo Vinome case, about racial profiling in Los Angeles that was very explicit. My own family witnessed it on the streets of Los Angeles, my own Latino family members. And Justice Kavanaugh going out of the his way to explain almost like a race neutral process by which you could question and stop us citizens of Latino descent. It's really stunning and it really reminds me of the spat that happened between Justice Sotomayor when she criticized Justice Kavanaugh. And I felt this energy in her dissent yesterday where she says, you know, there are some people who can't understand our experiences even when you tell them. I mean, that is such a theme with what Elise Alito wrote. To your point, Mark, about the record, this just couldn't be more clear that Haitians have been singled out by this president and other groups. I would say Venezuelans similarly. Lest we forget, over 200 Venezuelan men sent with our tax dollars to be imprisoned in El Salvador. Right. Like they have been discriminating persecuting against these ethnic groups. And it is infuriating as a lawyer of color, as a person of color in this country that the Supreme Court, Supreme Court can write this way. But you're right, Justice Alito will find animus when he wants it. And we've seen it. And I don't know how it'll affect our politics. Since post2024, it seems people are less invested in diversity initiatives, in talking about these issues. But may these set of cases that happened last week on immigration and in voting rights recently be a wake up call to many Democratic policymakers who want those issues to fall by the the wayside?
- [54:06]
Dahlia Lithwick
It's so interesting, Andrea, because you've just said sort of the flip of what I was noting, which is there's a presumption of bad faith for anyone who seeks TPS status for anyone who seeks asylum. There's a presumption that everybody is lying, everybody is fibbing, everybody's got some fiction that they're deploying. And you know, I'm just thinking of the language in the redistricting cases where there's a presumption of good faith. Right. When the legislature draws a racial gerrymander, we still have to presume good faith there. So it's married to this. Who is evincing animus. Mark, I'm laughing at Masterpiece Cakeshop. The animus that the court found among the commission, the Civil Rights Commission in Colorado was that one of the commissioners said, you know, a lot of bad stuff has been done in the name of religion. That was it. And that was scorching, scorching anti religious animus. And here you have Donald Trump saying, and again thanks to Elena Kagan who puts it in her dissent. Right. It's in the record because Alito wouldn't engage with it. Donald Trump says, why can't we have some people from Norway, Sweden, Haitians are black, writes Justice Kagan. Norwegians and Swedes, not so much. I mean the fact that we are reduced, reduced to making this point in sort of like elliptical parentheticals because it's so painfully obvious. And yet Justice Alito affords good faith. Whatever it is that animated this decision, it was not racial animus. Pay no attention to Donald Trump. The other just piece I want to just pull in here and it goes to Overton Windows and it goes to, to the time it takes for us to metabolize something that was shocking when Donald Trump said I'm old enough to remember eating the dogs, eating the cats. I mean I'm old enough to remember Shithole countries. And yet here we are. And I just want to flag JD Vance at the Nixon Library saying, oh, you know, if Watergate had happened now, it would be a big nothing because we can metabolize unconscionable land language. And that's what they're counting on. Right. Things that shocked us are no longer shocking. And in some sense, that undergirds Alito's willingness to normalize this. There's no animus here. We all agree, right?
- [56:34]
Andrea Flores
I view this in the comparison to the Muslim ban cases, right, which at least they made the administration go through a few rounds, right, to try and cure their own Muslim ban, which was called a Muslim ban. But. And so, once again, that was, I think, very clear, explicit animus. But ultimately, you ended up having a legal policy come out of that that was being implemented. And now I do think the court is emboldened in knowing that we will forget or we will maybe claim maybe that wasn't racism. I mean, I have been dealing with this in my jobs in government since Donald Trump said Mexicans were murderers and rapists. And it's interesting because that's how you. He started, right? And the majority of Latinos in this country are of Mexican descent. The majority of immigrants in this country are of Mexican descent. I mean, he was pretty crystal clear what he meant. But the litigating of those statements from that point, it has always been a willingness of too many political actors to question if he meant it. And in immigration, it gets really tricky because I've had a number of former colleagues tell me, well, it's not really a racial decision. It's about their country of origin. And even in Democratic spaces, you try and neutralize it that way. So I point that out to say a lot of how we get here is by letting those norms slide. I mean, I was working at the White house when over 10,000 Haitian refugees appeared in Del Rio, Texas. Right. And I mean, we have had a long history in immigration policy in both sides of the aisle of wanting to make Haitian immigration go away. And. Right. The metering case is about wanting to make Haitian migration go away. And so I think. I think when we let this slide and I try and hold Democrats accountable to this, Justice Alito gets emboldened. The opinion feels a little bit more authoritative. Racism gets a little bit more baked in. And I just point that out to say they don't want to forget that this is not the first horrible decision for Haitian immigrants in this country. Right. We have a long, long, horrible record with it.
- [58:29]
Mark Joseph Stern
Andrea, could you Continue to talk about the real human costs from this decision and other decisions from the Supreme Court term and what it means on the ground for the supermajor. Keep going along with the Trump administration's anti immigrant posture. I mean, you don't get this from the majority opinion in any of these cases, but this translates into families torn apart after decades, women facing rape and abuse, immigrants sent back to places where they will be killed, asylum seekers entering their country of origin under more dangerous conditions than ever. All of that is pretty much absent from Alito's opinion. But this is just the uncontestable truth of it, right?
- [59:06]
Andrea Flores
Absolutely. I like to take people to, all right, this is what happened, but what is the human impact? Let's start at the very beginning, which is that at a certain date, we don't know the exact dates, which different groups of TPS holders will lose their work authorization. So that means on day one, a worker, say a mother or father loses their job, an employer loses their employee. If they are parents, their children just lost an income earth earning parent. From there you have an administration that has been eroding every aspect of asylum protections. And that's important here because many TPS holders also have asylum claims and may have work authorization through the asylum system. Or, you know, there's a lot of shared kind of dual protection. But the Trump administration has spent the last year trying to cancel people's asylum cases. Okay, so then people fall out a status. What does that require? It requires ICE then locating them, trying to issue a removal order, probably without them even showing up in court, they'll probably issue that removal order in absentia. And then that person is now a target for enforcement. And so what does that mean for Americans? I have to zoom in on this. When you have 1.3 million people suddenly deportable, you need federal agents in communities knocking on doors. So what they have also unleashed, what they have ignored, ignored is the enforcement overreach. I mean, to do an operation like that, even just for Haitians, that requires going into diverse American communities. Miami is going to be majorly targeted. Springfield, Ohio shows the diversity of this will be majorly targeted roundups. And then those people get sent to detention for how long? We don't know. Because Haiti likely cannot accept these numbers of people. So for those who may not have been following, there is a record number of deaths in detention. So then people go to the detention, detention centers and they sit there until they can be deported. And that is what just got unleashed. And then if they get sent back, they will be persecuted by their government, many of them, because you can be persecuted simply for having gone to United States in the first place. That is the cycle the Supreme Court just unleashed. And we will see parts of it. We will not see what happens when they leave. But I want every American to know if you think detention is bad now, if you think enforcement is bad, this decision unleashes something we haven't seen because the government has their information and knows exactly where everyone is. And what a punishment of anyone who came forward and used our legal immigration system.
- [61:39]
Dahlia Lithwick
Right. This entire juggernaut was supposed to go after people who conducted themselves unlawfully. Andrea. And it's the people whose dresses and whose information is known who will now pay the price. And it is unconscionable. I want to ask this question because we are rolling into the last couple of days of the term. Can't come soon enough, won't lie. And I want to talk for one beat about this case in the context of we're going to be talking about birthright citizenship in a couple days. And as we keep mentioning on this show, that's gonna take up all the oxygen next week, in fact, it may shape the conversations we have throughout the month of July about the moderate, temperate Roberts court. And so I would love to hear from you all about this larger question of how the Roberts majority. We've talked about this a tiny bit in terms of the shadow docket, has really taken advantage of the fact that they run the script, right? They run the show. And so they can construct a narrative in which a whole bunch of stuff happens on the shadow docket, a whole bunch of stuff doesn't make headlines. We get these awful rulings in the second to last week of the term, and somehow, you know, all of the stuff overturned on the shadow dock at Kavanaugh stops, all of it gets completely submerged in what may or may not be the, the not most awful decision of the term in birthright citizenship. So can we just talk a minute about how the court. Because in the end of the day, this is the theater of the Roberts court, how they have manipulated this docket to, in some sense, hide the worst of it and in some sense highlight the ways in which they're actually extremely reasonable people who agree on almost everything.
- [63:49]
Mark Joseph Stern
I just want to say loud and clear, I'm done pretending that they aren't manipulating the docket. I know that they come out and tell us every year, oh, we just release decisions when they're finished, but they have control over when they are finished. Right. And otherwise we would not have gotten Calais just in time to set off another wave of partisan, this time racist redistricting in Southern states to help the Republican Party keep the house in 2026. Like, there, there is some real measure of control over when these decisions drop. And so I am just gonna take it as a given that they're gonna rule for birthright citizenship on the last day or maybe the second to last day. Right. It might be the very last decision that they issue. I think it'll be a good decision. And they'll get a ton of positive headlines that are gonna sweep away in the public's mind all of these odious decisions that preceded it. And we have got to fight against this dynamic every year. We have to this year, especially because the last hand down days, these were just routes for the center and the left. And these were huge victories for the Trump administration and for its broader agenda, specifically its nativist agenda. Right. And we cannot let all of it be washed away by the fact that six or seven justices are still capable of reading the first sentence of the 14th Amendment and confirming that it means what it says. That'll be good. It's certainly way better than the alternative. But it should not mean that this is a centrist or a moderate court. Nobody should fall for for that. Nobody should say, oh, it's not really a 6, 3 court, because they're capable of, like reading the plain words of the Reconstruction Amendments in Calais. They certainly weren't in many other cases. They certainly aren't. It just so happens that this is one area where the Federalist Society, like conservative legal movement dogma, hasn't fully attached itself to Trump and his policies. But trust that the next generation of FedSoc judges will be gunning after birthright citizenship. And even if we get a good decision in that case, it will be a reprieve, right? Not a permanent stay of execution for birthright citizenship. Because all it means is that Amy Coney Barrett and John Roberts aren't ready to take that plunge. But trust me, many judges on the lower courts auditioning for a spot on SCOTUS right now are eager to do so. And so even this decision, good as it may be, doesn't mean that the conservative legal movement is honest or nonpartisan or centrist or anything like that. It just means that they're still catching up to where Trump is in his effort to completely bleach this country of multi racism, racial democracy.
- [66:23]
Dahlia Lithwick
Andrea, before I let you answer, I want to point out every time I hear you talk, you say, and it's Important you've said it today. It's another podcast and we have to do it with you. But the US Immigration system is fundamentally broken. There are fixes serious people can muster serious solutions and we have to have those conversations rather than the eating the dogs, eating the cats conversations. And so I was want to just lift up that we haven't even managed to have the fulsome hour long conversation I want to have with you about how to fix this and how we got here stipulated this is the work you're doing. I do want to give you a chance to reflect and maybe end on what Mark just said, which is at the end of the day, birthright citizenship is about citizenship. The people who lost their this week are not citizens. There's a difference. And to say that at the end of the day, as Mark put it, you know, so evocatively, the fact that you can read the plain language of the 14th Amendment and the statutes that codify it and the case law that codifies it doesn't mean you are pro immigrant. It doesn't mean you have a capacious view of what America stands for. So I would just love for you to just reflect on the ways in which this week has been catastrophic. And it is of a piece with years of catastrophic decisions. And that can't go away next week if the court happens to get it right.
- [68:05]
Andrea Flores
Yes. And it's such a good summary because when President Trump was elected a second time, I did a lot of media around, well, President Biden has an obligation to make sure anyone eligible for TPS has it. And thank goodness we have the asylum system because that means a lot of people will still be in a potential path to legal status. And to see those eviscerated, I can't overstate to anyone listening how few options there are for immigrants who want to come legally, stay legally. And the new unprecedented punishment for coming forward to the US Government as an immigrant, giving them your information and how now your very life could be at risk. Right. We are at the end of a line of immigration being just completely neglected by our Congress. And at the same time that the Supreme Court has decided the president should have the most power in this area. Right. Those two things are happening simultaneously. Congress said we're done trying to fix this. And then the Supreme Court said we will enlarge a president's power. And while I agree that I think the ordering is so clear, to me Birthright will be the thing that Roberts gets reminded that he upheld. And what is so cruel about that though is it's Ignoring a broader scheme of President Trump is so clearly trying to erode the idea of US Citizenship. One of the things that makes me most patriotic is no matter where you come from, when you take that oath of naturalization, you live under the same Constitution, laws, rights as any American citizen born here. That is so unique in the world.
- [69:46]
Dahlia Lithwick
Right.
- [69:46]
Andrea Flores
You don't see that in many of other Western countries. And that's something that other countries, in diplomatic negotiations, they've even brought up, they're like, wow, your definition of citizen, you really mean it? Like they are now citizens. And, and a theme of this, I mean, the fact that the Supreme Court took this case, I think is an abomination. Right. It was a fringe legal theory that never should have been on this court's docket. So let's start there. Then President Trump showed up in person, broke history. And for anyone who claims that it is only Stephen Miller or his staff who are supporting this anti immigrant agenda, ignore that. The one case he showed up for in person was birthright citizenship. So this is a president who wants to challenge our nation's very conception of who eventually is the future American. American of this country. That is what all of these things mean. And so Chief Justice John Roberts may try and say we upheld the Constitution. At the same time, we're allowing one president to redefine citizenship as we know it. And it may not be redefined for babies born tomorrow or in the next few weeks, but it is being redefined for people who have been holding their green cards for a very long time, who are steps away, who went to their citizenship interview. This is an administration who is canceled naturalization ceremonies, depending on what country you're from. People were notified days away from when they went to go take the oath. The devastation. I tell every person, go to a naturalization ceremony if you have the opportunity to do so, and that will make you feel so proud of this country. And that is all part of the attack. So it is a facade. I will be, I will celebrate the Constitution being preserved, but then I will point out that it is coming in the context of the very definition of citizenship being redefined.
- [71:27]
Dahlia Lithwick
Andrea Flores is founder of Securing America's Promise. She has nearly two decades of experience shaping US Immigration policy at the highest levels, including roles at the White House, National Security Council, Department of Homeland Security, and the US Senate. She's a graduate of Harvard College in Columbia Law School. Andrea, we cannot thank you enough for your time and your passion this week. Thank you. Thanks for being here.
- [71:51]
Andrea Flores
Thank you so much for having me. This was such a needed conversation.
- [71:56]
Dahlia Lithwick
That's all for this episode. Thank you so much for joining us on this wild ride through opinionpalooza plus members. You already got your bonus episode this week when Mark and I popped up on Thursday, soon after that tranche of decisions dropped. We will very, very likely be back in your feeds with an emergency pod klaxon next week with decision days on Monday and Tuesday Tuesday. So if you are not a Slate plus member yet, be sure to subscribe so you don't miss a thing. Please visit slate.com amicusplus to join us. You will be supporting all of our work and you'll get extra episodes, ad free listening and paywall free reading@slate.com you can also subscribe to Slate+ directly from the Amicus show page on Apple Podcasts and Spotify.
- [72:47]
Mark Joseph Stern
We love your letters and your questions and also frankly, your compliments.
- [72:52]
Dahlia Lithwick
And we actually just wanted to take a moment at the end of this very dark week to share some of the very, very lovely things some listeners have said in their recent reviews of this show on Apple Podcasts.
- [73:06]
Mark Joseph Stern
Here's one Best SCOTUS analysis podcast I have subscribed and followed just about every SCOTUS podcast there has been since the Pandemic Amicus stands head and shoulders above the Dahlia Lithwick and Mark Joseph Stern have carefully laid out exactly how the justices on this Supreme Court have stopped practicing law. Thank you.
- [73:25]
Dahlia Lithwick
And here's another one why I subscribe. I listened to Amicus for one or two years before subscribing. I subscribed not to skip the ads, but to support a quality of legal analysis that I, as an attorney since 1979, recognize as spot on. Given the quality of the main show, I didn't believe that the bonus episodes would be worth paying. I was wrong. I admire, respect, and enjoy Mark Joseph Stern's bonus commentary. There is no podcast that I have followed longer than Amicus.
- [73:57]
Mark Joseph Stern
Oh, thank you. That is such a balm in these unsteady times. And we really just cannot overstate what it means to get through each week along with you all.
- [74:06]
Dahlia Lithwick
And if either of our moms wrote those, please send us a note.
- [74:11]
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- [74:13]
Dahlia Lithwick
Sara Burningham is Amicus Supervising producer. Our producer is Sophie Summergrad. Thank you also to Joel Meyer for his help again this week. Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcasts, and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next next week. Until then, we implore you, hang on in there.
- [74:49]
Andrea Flores
When finance professionals need trusted insight, they turn to CFA Institute now, as private markets become essential to modern portfolios, we bring the same commitment to ethics, education and professional excellence that has defined refined our work for over 75 years. With professional certificates, a new private markets pathway in the CFA program, the latest research and more, we are helping professionals build deeper knowledge and stronger judgment in a complex field. Visit cfa institute@cfainstitute.org to learn more.
- [75:22]
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