Norway-Sweden Worshippers

Summary

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Divided Argument: "Norway-Sweden Worshippers"

Hosts: Will Baude & Dan Epps
Release Date: July 13, 2026
Main Theme:
A deep-dive discussion of two consequential Supreme Court decisions on U.S. immigration—Mullan v. Doe and Al Otro Lado—covering constitutional issues, statutory interpretation, standing, and broader court practices.

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Episode Overview

Will Baude and Dan Epps engage in a richly detailed conversation focusing on two hotly contested Supreme Court immigration decisions. The episode explores the legal intricacies of temporary protected status (TPS), the scope of judicial review, alleged racial motivation in executive immigration policy, procedural quirks around the shadow (interim) docket, and more. Baude and Epps provide sharp analysis, highlight oddities in the opinions, and probe deeper questions of constitutional structure.

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Key Discussion Points & Insights

Opening Banter & Podcasting Logistics

• The hosts joke about their lack of “hype music” for the show and reminisce on early blogging culture.
• They discuss using Substack as a platform for updates and engagement with listeners, and encourage listeners to post comments or questions there [05:41].

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Context: Recording Date & Motive for the Episode

• Recorded on July 2, 2026, the hosts explain they’re addressing recent immigration cases before Will goes on vacation [06:26]. They clarify any disconnects between recording and release dates in light of the Supreme Court's unpredictable schedule [06:36].

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Why Prioritize the Immigration Cases?

• Epps justifies focusing on Mullan v. Doe and Mullan v. Al Otro Lado over the more politically salient transgender sports case due to foundational “Fed Courts” (federal courts) issues [08:08].

  “It’s got an interesting, fun, nerdy Fed courts issue.” – Dan Epps [08:10]

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Deep Dive: Mullan v. Doe

Case Background & Legal Stakes

• Concerns termination of TPS for countries such as Haiti and Syria, granted to individuals due to unsafe conditions (armed conflict, disasters, etc.) [12:03].
• The Trump administration moved to terminate TPS designations, relying on statutory procedures—questioning whether consultations and statutory requirements were properly followed [14:46].

Key Statute Discussion:

• Statute gives Secretary of Homeland Security discretion to designate/determine TPS, mandates consultation with other agencies, and—critically—bars “judicial review of any determination with respect to the designation or termination... of a foreign state” [16:18].

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Major Analytical Questions

1. Statutory Reviewability

Q: Can courts review procedural flaws if substantive decisions are unreviewable?
A:

• Baude: “Judicial review of any determination with respect to the termination includes the steps leading up to the termination… That’s part of how the determination happened.” [21:45]
• They explore the presumption in favor of judicial review and debate how broad the bar to review should be.

2. Constitutional Claims & Jurisdiction Stripping

Q: Does jurisdiction stripping bar constitutional claims?
A:

• The statute isn’t clear, and the Court sidesteps a definitive answer. The hosts unpack theories about whether Congress can preclude all judicial review, including constitutional claims—a deeply unsettled area [27:06].

  “Somehow the court manages not to tell us the answer.” – Will Baude [27:06]

• The discussion covers Justices' likely alignments; Baude suggests Roberts and Kavanaugh would be skeptical of jurisdiction-stripping that blocks constitutional review [29:04].

3. Steel Co. and the Interim Docket

• They highlight how the Court reviewed the merits before resolving statutory jurisdiction—breaking with the “Steelco” rule (that courts resolve their power to act before addressing merits) [32:40].

  “The Court normally has a rule… that says you’ve always got to do jurisdiction first because jurisdiction goes to your power to decide the merits… but not here.” – Will Baude [32:40]

• Several Justices (Gorsuch, Barrett) decline to endorse Alito’s interim-docket workaround while not blocking a merits ruling [35:33].

4. On the Merits: Equal Protection & Racial Motivation

• The heart of the challenge alleges removal of Haiti’s TPS is racially motivated and thus unconstitutional.
  • The hosts draw parallels to Trump v. Hawaii and discuss anti-Haitian, anti-immigrant rhetoric by President Trump for context [44:09].
  • The Court, in Alito’s words, was non-confrontational about the facts:

    “The president’s comments fall into four main categories... [including] some statements that malign Haitians who have come to the United States.” – Will Baude summarizing [46:43]

  • The Court upholds the policy, gesturing to other plausible, non-racial motivations (anti-immigration, focus on poor countries), and relies on the Arlington Heights doctrine (race-motivation plus “would you have done the same anyway?”) [48:38, 50:27].
• The hosts wrestle with the challenge of “mixed motives” and who bears the burden of proof [63:39].

5. Concurrences & Dissents

• Justice Thomas’s Concurrence:
  • Argues that the Equal Protection Clause shouldn’t apply to the federal government (non-textual under Bolling v. Sharpe), and the clause benefits “reverse discrimination” plaintiffs more than those it was supposedly meant to protect [53:19, 55:26].
• Justice Kagan’s Dissent:
  • Reads the jurisdiction-stripping language more narrowly, would allow procedural claims, and would also find racial motivation sufficient to switch the burden to the government, which she feels they could not meet [61:44, 62:08].

Notable Quotes:

• “It’s hard to imagine the statements being made today of any white community.” – Justice Kagan dissent, as noted by hosts [62:08]
• “There’s not ‘white Somalia’, which is next door to Somalia, that has all the other characteristics.” – Dan Epps [63:24]
• “Who bears the burden of proof is the ballgame.” – Will Baude [64:02]

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Brief Analysis: Mullan v. Al Otro Lado

Background & Legal Stakes

• Concerns the government’s “metering” policy at the southern border—restricting the right to request asylum by physically blocking entry points [65:09].
• Statute triggers processing when a person “arrives in” the United States, not just “at” the border [67:05].

Key Legal Debates

1. Textual Interpretation: “Arrive in” vs. “Arrive at”

• The hosts challenge the majority’s heavy reliance on hypothetical speech examples (“A guest does not arrive in a house when he knocks on the front door…”)—finding such phrasings awkward and unconvincing [73:31].

  “I've watched a good amount of football in my life. I don't ever remember Madden or somebody saying the running back just arrived in the end zone.” – Dan Epps [73:31]

• Both hosts see the ambiguity in statutory language as emblematic of Congressional sloppiness, complicating textualism.

2. Purpose & Historical Motivation

• The dissent stresses the law arose from the U.S. government’s refusal to accept Jewish refugees pre-WWII (S.S. St. Louis), and that the plain meaning should prevent turning away asylum-seekers at the border [70:53].

  “That’s failing to respond to the evil the statute was designed to address.” – Will Baude [71:18]

3. Policy Implications

• The majority’s reading, per the hosts, creates perverse incentives—migrants are now encouraged to cross illegally to trigger legal process, since showing up at the official entry point could mean being denied entirely [79:09].

  “You have strong human incentives to swim across the Rio Grande rather than to go to the port of entry in an orderly fashion. And that's bad.” – Will Baude [79:14]

• Real-world harms are stressed: suffering, death, or dangerous crossings are likelier for denied asylum-seekers [79:38].

4. Mootness & The Shadow Docket

• The metering policy was not in effect at the time of decision. Still, the majority finds the case not moot, since the government hasn’t demonstrated it won’t reinstate the policy [81:01].
• Justice Jackson dissents, calling the ruling an advisory opinion since the controversy was dormant [81:35].

5. Further Concurrences

• Justice Thomas again questions whether the Court can issue class-wide relief—citing jurisdiction-stripping provisions and even suggesting the President might have constitutional authority to override statutory limitations on exclusion [85:48].

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Notable Quotes & Memorable Moments

• “Somehow the court manages not to tell us the answer.” – Will Baude on constitutional jurisdictional stripping [27:06]
• “Boy, if they're baffled at this level, just imagine how much worse it would be if you ask them to start trying to figure out the intent of the [statute] compromise.” – Will Baude on the perils of legislative intent in messy statutes [77:59]
• “Who bears the burden of proof is the ballgame.” – Will Baude on mixed-motive equal protection law [64:02]
• “I've watched a good amount of football in my life. I don't ever remember Madden or somebody saying the running back just arrived in the end zone.” – Dan Epps [73:31]
• “There are all sorts of places in the law where we say there are procedural requirements that have to be followed, even if there is in the end going to be some discretion with the decision maker.” – Dan Epps [22:25]

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Timestamps for Key Segments

• 00:00–03:40: Opening banter, blogging/tech nostalgia
• 06:26–08:37: Reasons for focusing on immigration cases
• 10:04–13:04: Explaining TPS and the structure of the statute
• 16:18–21:45: Judicial review bar, procedure vs. substance
• 27:06–32:40: Jurisdiction stripping, Steelco, interim docket
• 44:09–47:56: Racial motivation, Trump v. Hawaii parallels
• 62:08–64:02: Burden of proof in Equal Protection analysis
• 65:09–70:07: Al Otro Lado case, metering policy basics
• 73:31–79:09: Statutory interpretation and practical consequences
• 81:01–84:12: Mootness and court's handling thereof
• 85:04–88:00: Justice Thomas concurrence, Article II powers

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Tone & Language

Baude and Epps keep a scholarly yet casual tone, balancing legal technicality with plain-spoken analogies, often poking fun at bizarre statutory language or judicial reasoning. They are candid in expressing confusion or skepticism, occasionally referencing real-world impacts to ground the legal abstractions.

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Summary Takeaways

• The Court’s immigration decisions entrench broad executive discretion and limit judicial review, both statutorily and—potentially—on constitutional questions.
• The majority in both cases showcases textualist methodology, leading to counterintuitive or harsh results, while dissents stress legislative purpose and humanitarian concerns.
• The episode crystallizes unresolved questions about the scope of judicial power, court procedure, and the boundaries between law and policy in immigration.

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For listeners seeking comprehensive understanding or context behind the Court’s most recent immigration rulings—and how the Court’s procedural choices may shape legal outcomes—this episode is essential. Baude and Epps provide an unflinching look at the Court’s doctrinal machinery in motion, with all of its high-stakes consequences and interpretive oddities.

Transcript

[A]

Oh, yay.

[B]

Oh, yay. The judicial power of the United States shall be vested in one Supreme Court.

[A]

Unless there's any more question, we have

[B]

to find an argument in this case.

[A]

All persons having business before the honorable

[B]

the Supreme Court of the United States are admonished to give their attention. Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode.

[A]

And I'm Dan Epps.

[B]

Dan, do you have hype music for these things? Do you listen to something as you're on your way to the office to record?

[A]

No, I should. I should. I listen to a lot of EDM when I'm trying to get work done because I figured it's hard to concentrate. Yeah, no, most other music with a lot of lyrics and things I find distracting, but something with just a good beat. Yeah, I mean, I could. I could just play our theme music over and over.

[B]

Well, yeah. So sometimes I listen to our podcast as I'm getting ready to record our podcast, like, to the last episode.

[A]

Does it help? Yeah.

[B]

Guess me. It would.

[A]

What about. I don't think we've used these much. What about our transitions?

[B]

Yeah, they're not as easily accessible on my phone. Maybe we need a file of divided argument hype music.

[A]

Hold on for one second. How about that one?

[B]

Sounds nice.

[A]

Does that. You know, that's nice. We've got three of these. We used to use these a little bit more.

[B]

Right.

[A]

Maybe it's time to bring them back.

[B]

We're just more seamless. We don't have as many transitions.

[A]

Not sure about that.

[B]

And we do the live show. We usually play the. You know, we play the theme song beforehand, and that's always nice.

[A]

I had Claude help build a bunch of, like, a show writer for our live shows called Cool.

[B]

Does it have demands about our snacks and stuff?

[A]

No, no, no. It's pretty reasonable. But then one of our live shows recently, I gave it to them. They said, oh, this is great. And then none of the things I asked for were there.

[B]

But it's fine.

[A]

It still was successful.

[B]

You can take a rider, but can you fulfill a rider?

[A]

Yeah, but you know the reason, right? The famous reason for the brown M and Ms.

[B]

Test of whether people actually were reading the writer.

[A]

Yeah, exactly. That was the point. It was not because Van Halen really cared that much about the M&Ms. I guess it was without the brown M&Ms. But if they saw that, they would know. Okay. All the safety stuff that we care about has been done. And if they saw that it hadn't been Done then. That was a real concern, right?

[B]

Yeah, we don't do a lot of acrobatics or special events back to our live shows.

[A]

Yeah, I'm always looking for ways to step things up.

[B]

Okay, well, I'm open to it.

[A]

I want to figure out how to create cool promo videos with AI. That's the next step for me. Okay. I just got you to learn how to use Claude code in your terminal, which was way outside of your technological comfort zone. It's pretty cool, though.

[B]

It's great. That's great. I've always tried to battle my natural Luddite tendencies. I was an early email adopter in high school. One of my friends and I made ourselves email each other every day just so we get used to this email thing. We didn't have any email. We were teenagers without an online life. We practiced. I tried to get into blogging before school.

[A]

When I was in high school, we had a very early email and bulletin board system. I had a GeoCities website early on. I don't know if you had one of those. You were an early blogger, right? I don't know what counts as an early blogger, but you were like a early 2000s blogger.

[B]

Yeah. 0102 was back when Eugene Volok and Jacob Levy were kind of two of the main bloggers in the law political theory space. And I spent a summer reading them and then started posting.

[A]

I mean, that's a little tech savvy, right? To be an early blogger?

[B]

A little. It didn't come naturally. And then when our website had to move off of Blogspot and move to movable type, I had a friend who helped keep the website running.

[A]

Are the archives of your old blog still up?

[B]

Only on the Wayback Machine.

[A]

Oh, that's too bad.

[B]

The blog was eventually captured by a domain. You know, those people who snatch up your domain when you fail to renew it and they tried to ransom it back to us for like, high five figures.

[A]

Are you serious?

[B]

Yeah.

[A]

They've probably let it go since then.

[B]

I mean, even at the time, it was then just like random SEO advertising junk, which is still there.

[A]

Well, maybe someday you'll get it back.

[B]

I have a new blog, Dan.

[A]

True. Although we call it a blog. Although I feel like blogs as such are kind of passe.

[B]

Blogs are back.

[A]

It's a newsletter, right? People like newsletters.

[B]

It's just a blog that emails you if you've got a new post.

[A]

Yeah, but I mean, it solves the big blog problem, which was aggregation. This is why I was never a huge blog Reader just because I found it a little overwhelming. I did more when you could get them on Google rss.

[B]

The problem was just that Google Reader died. Google Reader was amazing. And then once Google Reader died. Yeah.

[A]

And a lot of blogs didn't make it available. They didn't have good RSS feeds. But Substack works pretty well.

[B]

Yeah.

[A]

Hopefully folks are subscribed. And also Substack is a place you can get email updates for new episodes because you do a good job of this going on there and putting little posts every time we release an episode.

[B]

I like the way you say that. Here's a rare example of, well, doing a good job. It's something blog related or podcast related.

[A]

No, I don't think it's weird, but that's your domain. I have other domains I'm dealing with transcripts, stuff like that. That's great.

[B]

Also on the blog, the comments on each episode are open, and people often use that as a place to chat or ask questions about the episodes. Sometimes I even respond to things that were not in the inbox or things like that.

[A]

Okay. Check it out. That's good to know. I should comment and get your responses there. Okay, so we are recording this Thursday, July 2nd.

[B]

Why are you giving that away, Dan?

[A]

Because it's always possible something shocking will happen between time of recording and time of release. And I don't want us to look totally clueless. Okay. Because we're trying to. You know, we have released a ton of episodes. I think we've released four episodes in a week, and then we've got a couple more that we're stretching out. So if anything happened, if a justice unexpectedly retired, proving Nina Totenberg correct, we don't know about it, but hopefully all the justices are on vacation now and they're not going to do anything that will preempt this discussion. That's right.

[B]

Yeah. People have been complaining that the flow of episodes is too high. They're having trouble keeping up.

[A]

Just put them in your hopper and listen to them over the coming weeks. But. So today we're going to talk about two immigration decisions that came out, I guess, was it a week ago today at this point, Thursday of. Of last week?

[B]

Yes.

[A]

Yeah. June 25th. Yes. Mullen versus Alotrilato and Mullen versus Doe. This is the last one we're recording before I go on my trip. We might try to record while I'm on my trip. Maybe not. But you wanted to do these rather than the transgender sports case as a kind of higher priority. Why was that?

[B]

Steelco.

[A]

Okay. Because it's got a interesting, fun, nerdy Fed courts issue.

[B]

You say interesting and fun. I say maddening and insane. But yes.

[A]

I mean, I feel like the transgender sports case is more politically salient. I mean, this one, especially Doe, which we'll talk about, is important, but.

[B]

So whenever I try to make these claims about the importance or political salience of cases, I feel like you and everybody else just disagrees with me. Obviously, there's a sense in which that's true, that trans issues and girls sports is a huge political issue. Of course, the Trump administration's treatment of immigrants is also a huge political issue. And in many ways these cases are, I don't want to say more surprising, but I feel like they're more significant in the sense that the administration is doing things that had a bigger chance of maybe somebody saying they were not lawful or that some other administration wouldn't be doing.

[A]

It was on shakier ground. Yeah.

[B]

I mean, there were lower court rulings against both the state transports laws and against these immigration policies, but I feel like these were a little less of a foregone conclusion than that translates.

[A]

That seems reasonable. Yeah. And you could imagine maybe the court splitting the difference, but no, these are both going to be six to three, conservative, liberal, divide.

[B]

And these are also, I should say to the people who. I feel like the Birthright Citizenship episode we recorded recently and released a little less recently, by the time you're listening to this, might be seen as like a look at the Roberts court standing up to the Trump administration's xenophobia. And I think a lot of people, people would say, well, it is important to read that decision alongside the other immigration decisions, get the full picture of the court's reaction to executive action in this area.

[A]

Yeah, that seems right. Okay, well, let's do it. I think you wanted to talk about Mullen versus Doe first. Yes. Is that correct? And you think that one is more important? I think that's probably true for reasons we'll talk about when we get to Allotro Lotto.

[B]

Yes. Or at least I think this one also has more law to talk about also.

[A]

Okay. Yeah. That is maybe our specialty.

[B]

We try.

[A]

We don't know so much about other stuff.

[B]

Also, this one has some weirdly messed up line spacing on the first page.

[A]

What is going on?

[B]

I don't know. And I thought they might have fixed this by the time we recorded, but I just opened this up off Sweet's website today, so any listener, we'll see if it's still true. But you go to page one of the court's opinion. And then you go to page and you can just see the different white space between the lines on 1 versus 2.

[A]

Is there some reason they're doing this that we don't understand? Something like to make the footnotes on other pages line up or something?

[B]

Maybe. I mean, on the first page, you could just have a little less. I don't know, it could be something with the way the caption takes up more space on the first page. The docket numbers are kind of in a weird place. Like they almost took up an extra line or something.

[A]

Okay, well, actually, it's really weird.

[B]

If you look at the first page, the docker numbers are just hanging out there on the same line as the V with no obvious purpose. I wonder if something has gone wrong there.

[A]

Okay, well, so probably not the most troubling thing about this decision, at least for most of our listeners, actually. Daniel, you're still hung up on this.

[B]

I'm just saying, if you look at.

[A]

Wait.

[B]

Also. Oh, I see.

[A]

Okay.

[B]

Sorry. Yeah. I don't know. There's something going on here, and they need to work on it.

[A]

Okay.

[B]

Aside from the issues of font and formatting, there's some other interesting legal things going on here. So Mullen versus Doe, which is consolidated with a D.C. circuit case that's actually the significant of the two, which is maybe called Trump versus, I'm not sure, are two cases about the termination of something called temporary protected status, which is an immigration status given by the executive branch, under law to various countries, where the government concludes that the conditions in the country are unsafe. And so we need to. Temporary blanket refugee status or protected status. It's not technically refugee status. That's a technical term in the US for people who are there an ongoing armed conflict or an earthquake, flood, drought, epidemic, or other environmental disaster that makes the state extraordinarily unable to handle the return of its nationals.

[A]

And in some cases, there's a process, whereas the government can designate certain groups as eligible for this, and then there's a period of periodic renewals. And in some cases, this has gone on for decades. Right?

[B]

Yes. As the court notes, I think the temporary protected status for Somalia, I believe, has been out since 1991. Still out there 35 years later. Honduras, Nicaragua, El Salvador. Still out there 25 years later. Because as you might imagine, sometimes the issues are not easily resolved in all these states and all these countries. Others have lasted less long. And then I suppose it's also worth noting, as always, the immigration system as a whole has all these different moving parts, which nobody thinks move that well and move that well together. So one of the concerns or benefits might be, you might think, in general, our immigration system doesn't is institutionally generous, and then temporary protected status might be a cure for that. So you might think, okay, well, we've got temporary protected status in place, and even if you could make the case that things have gotten better, it's still good to have all these people here, and so I'm going to renew it and so on. Or as in the present administration, you could think the opposite and think immigrants are bad and therefore temporary protected status leads to immigrants, and therefore temporary protected status is bad, which appears to have been Secretary Noem's and President Trump's view. And so they terminated, and have terminated a lot of the, or all of the temporary status designations that have come up for renewal so far during.

[A]

So they're not going retroactively and sort of trying to cancel ones that haven't come up for renewal.

[B]

I guess there was some earlier litigation on the shadow docket about at least one of those, an early termination for, I want to say, maybe Venezuela, maybe. And there was some litigation about that, and there are some provisions, but then the court actually issued a sort of most win for the government, but partial loss, but they're not categorically going through early. The statute that creates this status, which is a change from the previously totally discretionary regime of evd, extended voluntary departure, contains various procedures you're supposed to do in deciding whether to terminate the program. Talk to people, see how things are going on.

[A]

Yeah. So looking at page four of the majority, it says responsibility for TPS decisions rests with the Secretary of Homeland Security. And the statute provides that the Secretary may designate a country for TPS after consultation with appropriate agencies of the government if certain conditions are met. And then it lists possible conditions are ongoing armed conflict, national disaster, extraordinary and temporary conditions that prevent nationals from returning, et cetera. Right.

[B]

But then on the back end, the statute says it's terminated once the Secretary determines that the country no longer meets those conditions, you're supposed to review them at least every 18 months. And during this review, the Secretary must consult with appropriate agencies of the government

[A]

and determine which is the language that is on the front end, too, and

[B]

determine whether the conditions for such designation under this subsection continue to be met. So on the front end, it's a May. On the back end, I think it's

[A]

described as a must, must consult, although

[B]

the must and must, I think, must terminate. If they decide that it's not met anyway.

[A]

It's must determine. Right.

[B]

The problem is there's a good question about whether or not those procedures were fully and faithfully adhered to by the government here. I mean, I think there were some emails, but did the emails, you know, actually ask the right questions or, you know, betray any interest in, you know, the answer to the question and so on? Less clear. Yeah. However, then the statute also says that there shall be no judicial review of any determination with respect to the designation or termination or extension of a designation of a foreign state.

[A]

Okay, what does that mean?

[B]

Well, that's the first question. So one of the challenges essentially is, look, they were wrong to terminate our temporary protector status. It should still be in effect. I think even the challengers agree that that provision means you can't get litigation on the bottom line question like, do those conditions exist anymore? That that's something that there's no judicial review of. But does that also bar judicial review of the procedures, whether or not you actually engaged in consultation or all other kind of arbitrary and capricious type issues? Did you actually think about this or did you just have a forwarding conclusion? Did you decide by flipping a coin or watching Fox News or whatever? The question is, does that bar judicial review of sort of procedures that led to the designation or termination in addition to judicial review of the termination itself?

[A]

Yeah. And can we just linger on this language? It's a little confusing, I guess, because they haven't redone the U.S. code. So the U.S. code still refers to the Attorney General. It says there is no judicial review of any determination of the Secretary with respect to the designation or termination or extension of a designation of a foreign state under this subsection. Right.

[B]

There is no judicial review.

[A]

There is no judicial review.

[B]

It's a little like the 13th amendment, like slavery does not exist. It's not saying it's forbidden. Exactly.

[A]

It's just like it's not a thing.

[B]

Pay no attention to the judicial review behind the curtain.

[A]

There is no judicial review determination with respect to the designation or termination or extension of a designation. Yeah. Okay. Okay.

[B]

All right. So got it. First question is essentially the statutory reviewability question. Can there be judicial review with respect to, let's just say the non constitutional questions, the statutory questions surrounding this termination, and the court says no.

[A]

And that could include both a substantive and a procedural objection. Right. You could think it's bad that they made this substantive choice or it's bad that they didn't follow the procedures.

[B]

Right. But again, I think everybody agrees it has to apply to at least substantive determinations. Otherwise, what else would it apply to?

[A]

At least the kind of the bottom line decision. Right, right, right.

[B]

I mean, you could have a very broad view that some Fed Court scholars, maybe in the mid 20th century might have had, that the provision is unconstitutional, even as applied to statutory provisions.

[A]

Yeah. That seems like it should be wrong.

[B]

It has to be wrong. Although note, there are people who think that Chevron was unconstitutional, not just wrong, but unconstitutional, that Congress can't tell the judiciary to defer to agencies about what words mean. And if that were true, would this be different? It's not a what words mean question, but if there's Some Inherent Article 3 Prerogative of courts to decide all legal

[A]

issues all the time.

[B]

Yeah. Well, like the thing to say what the law is, as Marbury says.

[A]

Yeah. In any context, I mean. Yeah, that can't be right.

[B]

And that's why I think the conventional. I think Henry Monaghan was one of the first people to write this after Chevron is like sometimes saying what the law is is saying that the law says the judiciary doesn't get to say what the law is. But of course, as we'll talk about in a minute, if Congress can sometimes say the judiciary can't say what the law is, how far does that go? So you can ask that question. But again, everybody seems to agree that at a minimum, the bottom line decision can't be reviewed. But what about the other stuff? Because there are definitely places where we say, look, the ultimate decision is in the discretion of the agency or in the discretion of the district court. But if there were procedural defects or deliberative defects leading up to the determination, that's a different matter. What if we discovered that a document issued under Secretary Noem's name was actually not even a determination of the Secretary? She was gone. And Corey Lewandowski just opened up her laptop and sent out a determination under her email address. Could we have a judicial review to see whether that was. Maybe then we'd say, well, that's not even a determination of the Secretary, so it falls outside. I'm not sure.

[A]

Okay.

[B]

Yeah.

[A]

And so are we still just talking about the statutory stuff or are we going to bracket constitutional stuff?

[B]

Let's do constitutional in a minute.

[A]

Okay.

[B]

The court's answer to statutory one seems to me easy and obviously right, which is the judicial review of any determination with respect to the termination includes the steps leading up to the termination. That's part of how the determination happened. And it's not really clear. You wouldn't really have standing to challenge those procedural steps except for the fact that they have an effect on the termination. The only theory under which anybody gets to care whether or not she asked the right questions or consulted the right people is that this is a way of invalidating determination.

[A]

Yeah. It could be true that there's all sorts of places in the law where we say there are procedural requirements that have to be followed, even if there is in the end going to be some discretion with the decision maker.

[B]

Yeah, but I'm just saying that our theory is always, I think that to have judicial review of those procedural requirements, they have to have some effect, even if it's just a legally automatic effect on the determination. Like if you had a statute that says no judicial review of any convictions under the statute or no appellate review of any criminal convictions under the statute, and then you appealed saying, well, look, I'm not reviewing my conviction, I just want to argue that my constitutional rights were violated, we would say, no, that sounds like you're asking for a review of your conviction.

[A]

Yeah. So we could analyze that, but we're also not allowed to analyze the bottom line. I think that's plausible. I mean, I don't think it's obvious. I think you could take the dissent's view that it's designed to bar judicial review of what is ultimately a somewhat discretionary and kind of like policy laden determination. Yes, but it doesn't exist to bar judicial review of the parts of the statute that are mandatory.

[B]

Right. I don't think it's irrational to imagine such a system. I'm just saying when you start with just the flat rule, no judicial review of the decision or no judicial review of the determination, if you were going to try to devise the carve out system, no judicial review of the bottom line. But yes, judicial review of the procedures, that's probably something you'd have to explain rather than that being the default of just a no judicial review of the determination.

[A]

Yes. Unless you, and this is an issue in the case whether you buy into this idea that there should be a presumption in favor of judicial review and you should read a statute like this barring judicial review. Narrow right.

[B]

Although you could also think there's a presumption in favor of judicial review, but then because there's a presumption, then sometimes there's a statute barring just review and then you just have to read that fairly. But yes. So if you wanted to, maybe you could read it. Otherwise the court's precedents and the court in general say that presumption is stronger for constitutional issues.

[A]

Yep.

[B]

So unless you want to say more about this, then we can get to the next question, which has two questions in it, which is what if the verification of the designation was not just a violation of the consultation requirement, but a violation of the Constitution? What then?

[A]

I'll just say one more thing about this. Alan Trammell and I have an article from a couple years ago about jurisdiction stripping and sort of arguing that the people that think jurisdiction stripping is this incredibly powerful tool for reigning in courts are really overrating it and it's not actually that useful. We'll talk about it with respect to constitutional issues, but one of our arguments is that jurisdiction stripping of statutory issues is not really that useful a tool for Congress because it can always just change the underlying statutory law anyways. Congress could have said there's no judicial review, basically, or they could have said this is an entirely discretionary decision.

[B]

And that was the prediction TPS regime.

[A]

Yeah. Okay.

[B]

Okay. So the other challenge is specifically for the revocation of temporary protective status of Haiti. The case involves both Haiti and Syria, but the Haiti plaintiffs also won below or one preliminary leaf below on the theory that the revocation of Haiti's status was unconstitutionally racist as opposed to constitutionally racist.

[A]

Yeah. Okay.

[B]

I mean, as I understand the majority's holding it's not that it wasn't racist, it's that it was not constitutionally racist. But. Well, we'll see. That's fair. All right, so here's when things get more confusing because we still have this jurisdictional issue. Right. So the statute doesn't say judicial review of non constitutional issues. This precluded just says no judicial review. So maybe there's an exception for constitutional claims, but that's not clear either. This is one of the famously unresolved questions of jurisdiction stripping of federal courts. Can Congress strip review of constitutional claims? And if they can, do they first have to turn in a circle and sprinkle salt on the ground or use some of their magic words? Justice Scalia and Justice Thomas, I think, had previously written opinions taking a very strong sort of anti judicial review position on that issue. And so that's like a big deal. And somehow the court manages not to tell us the answer.

[A]

Yeah, I mean, and they're going to do so in a kind of sneaky way or tricky way. What do you think? Just what is your instinct about how many people of the six justice majority, if they had to answer the question, would think it is okay? Or I guess two things would think that this statute actually definitely precludes review of constitutional claims and also would think that that's okay.

[B]

My guess is of the six, three of them are not willing to. My guess is of the six, three of them don't think this bar is just short of you.

[A]

Kavanaugh, Barrett, Chief Kavanaugh, Roberts, Gorsuch.

[B]

Okay, maybe Beretu, and I think so. The Court does have, in cases, this clear statement rule, Congress's intent to preclude judicial review of constitutional claims, its intent to do so must be clear. And I could imagine the Chief and Kavanaugh and maybe Barrett all adhering to that rule and maybe two out of three of them not being sure whether its intent to do so is clear here.

[A]

Yeah, I see the Chief and Kavanaugh maybe being two of the most ones that are most concerned about the institutional power of the Court. Is that fair?

[B]

I don't like these labels, but I see what you mean.

[A]

No, I'm not saying that they're going to decide cases based on election returns in the polls. What I mean is just there's different theories of the Court and its place in the constitutional order. And for example, Justice Kennedy was the most judicially maximalist Justice, I think, in recent decades.

[B]

I think Justice Thomas cares a lot about the Court and the institutional power of the Court. He has different views of what that institutional power is, but his concern level is very high.

[A]

Concern level could be high, but one could think that the Court has a bigger or a narrower role in constitutional order. And my instinct is that those two maybe think there's a bigger role.

[B]

Right, but then that's what I mean. Justice Thomas thinks there's a bigger role in a different sense that he thinks the Court's role is to strike down a ton more statutes than anybody else does and to discard a ton more precedents than anybody else does. But still, I think on this question of my guess would be that Justice Roberts and Justice Kavanaugh would be disproportionately skeptical of jurisdiction stripping specifically that cut at this. And in part, this has become the kind of the equilibrium in that. On the one hand, it sort of has to be that Congress has a lot of power over the jurisdiction of the courts. On the other hand, many people think it can't be that Congress has power to just abolish the courts entirely and let the executive do whatever it wants. And it's really hard to figure out where to draw the line. And so a series of clear statement rules that let you kind of stay a middle course and avoid the most extreme examples could be quite attractive. You could imagine the thing about the clear statement rule is it also depends on your theory of statutory interpretation. So the more textualist you are, you could both think, yes, Congress's intent to do so must be clear. And this jurisdiction supervision is very clear. It just says no judicial review. With respect, too. That's clear. Whereas if you're lessotextualist, then you'd say, well, I mean, is it really clear? Because there's always this classic question like, if I say no vehicles in the park, does that clearly forbid ambulances, which it does unambiguously preclude ambulances, or does it say, well, I mean, they said no vehicles in the park, but they didn't say no ambulance vehicles?

[A]

Yeah, yeah, okay.

[B]

And then I could imagine Justice Gorsuch being. I could imagine him being maybe jurisdictional stripping is unconstitutional when it affects certain kinds of rights. Person believing there's more of a constitutional core there. Now, I don't know whether he present in this case or not would depend on a bunch of due process stuff that we'd have to get into, but I can imagine that. So what's interesting is the court solves this problem by saying we don't need to resolve whether the statute meets the clear statement rule because we conclude that the plaintiff's respondents are unlikely to succeed on the merits, and they just go ahead to the equal protection ground where all six of them agree should lose. This is not normal. The court normally has a rule memorialized in a great Justice Scalia opinion, Steel Co vs Citizens for the Better Environment, newly added to the most recent edition of Hart and Wexler, by the way, that says you've always got to do jurisdiction first because jurisdiction goes to your power to decide the merits, just like conceptually. So you can't adjudicate the merits before you decide you have jurisdiction. And lower courts, as a matter of practicality, understandable practicality, have sometimes wanted to say, well, look, hypothetically, if I had jurisdiction, you would still lose. So it kind of comes up the same way either way, you lose. Do I really have to jump through a bunch of hoops and figure out whether Hart or Wechsler was right about the fundamental nature of federal jurisdiction? Just to say losing claim loses, and Justice Scalia says, yes, yes, you do. You have to do that. That's a majority opinion that is generally taken pretty seriously, but not here.

[A]

And you think that's right? Sounds like the basic rule. I mean, it makes sense to me.

[B]

Yeah, I think that has to be right. And there are cases where even the technicalities kind of would matter. A judgment that your claim fails for lack of jurisdiction and a judgment that your claim fails on the merits actually often have different preclusive effect. Actually, your rights are a little different based on which reason you lose.

[A]

Yeah, that makes sense.

[B]

And I also just think conceptually it's right that jurisdiction is the power to decide the law. So you don't have jurisdiction. You shouldn't decide the law. The doctrine does get more complicated in various ways that are sometimes embarrassing. The court does let you swap some non jurisdictional issues first, if they're kind of jurisdiction. Like forum non conveniens is a theory that you could have brought your claim in Malaysia and we'd rather you did. Not that we lack jurisdiction to hear your claim, but that we just don't want to because you should go to Malaysia. And the court has said you can do that before jurisdiction because it doesn't really result in adjudication on the merits. And there are things like is there a cause of action? That was the question in Steelco that some people thought should go in the kind of quasi jurisdiction bucket. But the court says that's more of a merit's bucket. So if you take this rule too seriously, you have to start asking a lot of questions like what is jurisdiction? Which as we've said, is a word of many, too many meanings. But I still think that rule makes a lot of sense. What Justice Alito now says in a part of the opinion that does not have a majority.

[A]

So he loses Gorsuch and Barrett.

[B]

Here he loses Gorsuch and Barrett is there is this principle does not apply to the interim docket

[A]

or it does not apply when the question on the interim docket is likelihood of success in the merits.

[B]

Right. It is a cardinal rule that a federal court may not consider the merits of a claim without first making a firm determination that it has jurisdiction when interim relief is sought. However, a court does not make a final decision on any matter necessary to the ultimate judgment. It makes only a predictive, not a final decision about the outcome of the case. The likelihood that the court has jurisdiction over a claim and the likelihood of the claim is meritorious. Both bear on the claim's ultimate prospects. Therefore, we can reverse the district court's grant of interim relief on either jurisdictional or merits grants.

[A]

Okay, so a lot of questions about this.

[B]

Yes, and I should say I read a blog post about this already asking some questions about this on the Divided Argument blog.

[A]

And to be clear, so then it's going to go on. He's going to go on and address the merits. And Gorsuch and Barrett are going to be okay with that?

[B]

Yes.

[A]

And so what were they thinking? What do you think they were thinking?

[B]

Good. All right. So just to flag the reason this is weird is it still is a form of going onto the merits. And so if the court doesn't have jurisdiction to go to the merits, a lot of the questions you have in Steelcoat, like, seem like they'd still be present.

[A]

Yeah.

[B]

Now, there are some very technical things you could get into here. It's not quite the way he does it that several people have tried to write to me. So the denial of interim relief doesn't have a different preclusive effect based on whether it's denied for unlikelihood of jurisdiction versus unlikelihood of success. And indeed, denial of interim relief isn't a final judgment at all, although it's sort of a judgment. And so. And so maybe there's some just sort of technical slicing and dicing that in some core way denying a stay is different from ruling against a claim. This is all made much more awkward by the fact that, as we've talked about in the past year or so, the court has started telling us to take its interim precedents much more like merit's precedence, to hear Justice Alito say, oh, don't worry, we're not deciding the merits because it's the interim docket. And then to issue a thing that looks like a merits opinion that I suspect they're going to expect everybody to follow. Or Trump versus Casa. There was this cottage industry last year about what kind of precedent is Trump versus Casa, because it's technically on the interim docket. So is it now the case that nationwide injunctions are unlawful or is it just likely to be? Yeah, it's just the case. The lower court just thinks that they're unlikely to be lawful. So it's weird. Now, what's even weirder in some ways is that Justice Gorsuch and Justice Barrett appear to have thought this was weird in some way they had misgivings with. So there is no precedent yet that Stoke doesn't apply to the interim docket, but they still apparently think it doesn't because they go on to decide, well, no, not necessarily.

[A]

They could think that there's jurisdiction.

[B]

Good. Right. Exactly. So either they have different reasons for thinking it doesn't apply, like the kind of more technical level theory about the judgment that in this case, the steelco concerns don't totally exist because the judgment would be the same either way. I could imagine either of them having that view, or they think Steel Code does apply and they personally have satisfied themselves that there is jurisdiction, either because the clear statement rule has not been overcome or because jurisdiction stripping is unconstitutional. I guess they could also think steelco is wrong and so it's fine not to follow it. They do not write separately at all. So we know they have some other theory. I mean. Well, I guess they could also think they're not really allowed to do this and do it anyway. I'm ruling that out. But just to put it on the table, presumably in both chambers, somebody came up with some reason to satisfy themselves about why they could get to the merits that they will not tell us and that it's not the same as Justice Alito's theory.

[A]

Yeah. Don't you think it's better practice to say that?

[B]

Well, good. So, I mean.

[A]

I mean, because if one of them was writing the majority opinion, they would have just ignored this issue. Well, it's functionally the same thing. Right. It's as if everyone in the majority wanted to do this. Then there would just be no. 3A. The opinion would just be 3A, 3B.

[B]

Right. There is this interesting sub question about when you discover a tough jurisdictional question on the Court, should you address it or should you ignore it? Because obviously, as a matter of good practice, you should address it because you have to satisfy yourself you have jurisdiction. But as a matter of stare decisis, jurisdictional issues that were not discussed don't have presidential effect. If the Court exercises jurisdiction wrongly, but doesn't say why it's doing so, then it doesn't create stare decisis for the proposition that it's exercised jurisdiction. And I have heard it said that there were justices in the old days, in the Brethren era who did this on purpose, were like, oh, yeah, we probably don't have jurisdiction, therefore we should exercise jurisdiction without saying so so we don't mess anything up.

[A]

Sounds crazy, I guess.

[B]

No. Or the other version of this that I've heard was a claim that if a jurisdictional problem arises, like late breaking, like after oral argument or in June, then the best practice is not to address it. Because here's the best version of it. We will be under such pressure to conclude that we have jurisdiction that we will inevitably say something and we might well regret it. So better just to do it and not say anything. That could mean that of these various options, Justice Barrett or Justice Gorsuch actually aren't sure which one is right or have a tentative view of which one is right. Good. Enough to reach the merits, but not good enough to tell us what it is and create a precedent for future cases.

[A]

It just seems like in general it's the kind of thing that if a liberal majority were doing it, one of them, or Gorsuch in particular, would give them a hard time.

[B]

Yes, but it is. I think it's just the recurring. This is the recurring dilemma of the interim docket, which maybe we can fairly call the shadow docket here is there are times the court has to do something, so you have to reach a conclusion about what is the best thing to do. And you might well have a conclusion about what is the best thing to do. And a meta conclusion that you're not sure your reasons for that are correct or of three possible reasons for that you're really not sure which ones they are. And then this is the like. Do you write in the interim docket dilemma, while in some sense we might think it's always better for them to tell us what's going on, even if the answer is like, I got three theories and I'm not sure which one is right, the choice whether to do that does shape the development of the law in ways that might be bad. So it might be better. They might well have decided, boy, this is all weird. All the explanations for doing are kind of unsatisfying and have weird implications, let's say nothing. So there's no precedent and we'll figure it out later.

[A]

Yeah. Although, I mean, it makes even more sense to do that when you're really ruling on an emergency application here. This was before the court for more than three months, so it wasn't kind of a midnight ruling where that would be a lot more justified.

[B]

Right. No, I agree. I mean, this is why I think it's just, it's. But law is hard and there are lots of fed courts questions that I think about for three months and I don't know the answer yet. And when that happens, I get to just not answer them. But they've got to. I mean, I guess you could just hold the case over until they make up their mind, in which case the interim. In the interim becomes even more important. So, no, I think this is, I guess I want to say is obviously this is unsatisfying. It might be that this is the best they can do given where they are, which should itself be unsatisfying. But here we are.

[A]

Yeah, I mean, it's interesting because what if you think there's a 51% chance that there is jurisdiction and there's a 51% chance that the respondents win on the merits. You still would have to say that they're unlikely to succeed on the merits, right?

[B]

Yeah, well, I think so. Or even 70. 70. Right. Because 0.7 times 0.7 is 0.49. Now, obviously, writing an opinion that says, I think petitioners are probably right on the merits, 70% chance, and probably right on the jurisdiction, but not probably right as to both. And I heard this argument a lot when Mike Paulson and I were making the Section 3 argument. I heard people say, look, I think you have five points you have to get through to argue that Trump is disqualified for the ballot. I think you're probably right about each of them, but I don't think you're probably right about all of them. But I don't know which one you're not probably right about, but it's totally logical. But also sounds ridiculous. But worse, there is disagreement in the lower courts about whether you multiply or not. Obviously, in theory, if those things are independent judgments and can be adequately assessed with probabilities, then you should multiply them. But are they really independent? Do probabilities really capture the way we think about these things? Probably. I think there was recently, there's some litigation where a court got reversed for either multiplying or not multiplying. I forget which one. So even for the justices to try to separate opinions, endorsing the multiplying approach would make major law, which is. I mean, so I'm sympathetic to how hard this problem is. Although, if a majority of the Supreme Court can't figure out how to think about jurisdiction, what hope do we have?

[A]

Okay.

[B]

All right. That's part of why this case was fascinating and weird and troubling, frankly. Then we get to the merits, which are troubling in a different way. This is like, do you remember Trump versus Hawaii?

[A]

Yep.

[B]

Okay.

[A]

All too well.

[B]

Yeah. So Trump versus Hawaii. In broad strokes, when Donald Trump was a candidate for the presidency, he said a lot of offensive things about Muslims and the need to get Muslims out of the country. And then he became president and enacted a ban on entry from certain majority Muslim countries.

[A]

And he specifically had said, we need a Muslim ban.

[B]

Yes. And then after litigation and a couple rounds of llc, the administration's position became, well, this is not the Muslim ban that candidate Trump described. This is a travel ban on some countries that happen to be Muslim that the president believes in. And then they went back and added some non Muslim countries to kind of whitewash it a little bit. And eventually the court, under a somewhat Differential standard of review was like, okay, I guess we can live with that. It's not great. We can live with it. I feel like this is a similar dynamic, but like so many things from the innocent times of 2017 and 2018, the. I mean, these are statements not by a candidate, but by the president, which back in terms of Hawaii, they were like, oh, once he takes the oath of office, he'll be serious. Now the statements are just, I mean, beyond the pale, as they say.

[A]

Yeah, Just lots of horrible things about Haitians. Right?

[B]

Yeah.

[A]

I mean, nothing where he says we need to get them out of the country because they are black. Right. Which would be the smoking gun.

[B]

Sure.

[A]

But lots of things about just why Haitians are bad and why they're doing

[B]

terrible things and false or I think false claims about eating people's pets and all this stuff. And much less of an effort to go back and whitewash it or do it procedurally. Correct. And again, the procedural issues were barred by non statutory judicial review, but they might still be lingering in the back of the, you know, the constitutional concern. And the court says it's fine, it's not unconstitutional. And it says so in a very. And people disagree. How to read this by Justice Alito. But the court is very ginger in describing what's going on. Right. So it does not quote any of the statements by the president and Secretary Noem. It just says the president's comments fall into four main categories. Some express strong objections to immigration that this country's experienced in recent decades and the social ills that it has brought. Others express displeasure with tps. Some denigrate the countries from which TPS has been granted, including Haiti, portraying those hellish places to live. And some statements malign Haitians have come to the United States. I mean, that's true, but it really.

[A]

It definitely sanitizes.

[B]

Yes. So this is a great. Some people are like, this sanitizes it. So the court obviously is closing its eyes to the racism. I thought. Tell me, you think the sanitization is so awkward. I mean, that it makes obvious how uncomfortable the court is with the statements,

[A]

which I think is not great right now.

[B]

Obviously not so uncomfortable with them as to believe that they render the actions unlawful. And then there's even kind of a whole little speech about how Haitians are great. The majority just. Alito says, look, Haiti is a very poor country and living conditions there are unquestionably difficult, and many Americans of all races would surely find those conditions intolerable. But poverty and deprivation are nowhere reflection on character and there is no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country's ills. Due in large part to the difficult conditions at home, many Haitians have come to this country throughout our history, starting with the 500 Haitians who fought to support American independence. The Battle of Savannah. Many Haitians have made positive contributions to the United States from the very beginning and continue to do so today. Great, but apparently not great enough.

[A]

And then they sort of go on and say something which I think is right, which is, look, all these countries are, the challengers are saying these are non white countries that the President is doing this to. And they're like, well, look, Western European countries don't have these problems that require tps, right? Which is not crazy to me to say that these policies are the product of anti poor country bigotry. But it's not exactly the same thing as saying they're racist bigotry. It can still be bigotry, right?

[B]

So factually, they've terminated the second term administration has terminated every TPS designation up for review so far. And the only one from a European country with a lot of white people that's up that hasn't happened yet is Ukraine. And I guess odds are they're going to terminate Ukraine too. Although is that because of the race neutral opposition to TPS or because there are other reasons that the Ukraine is a disfavored entity? So then this does get into a doctrinal point. The conceptual point is just you say it's racism, we say it's anti immigrationism and it's plausible. There is case law on this which maybe applies. The dissent says it obviously applies. The majority is a little wafflier. A case called Arlington Heights about what to do when this happened, when you've got racist statements and also race neutral explanations. And the doctrine, which I do not understand says you have to just ask whether race was a motivating factor, not the cause or the sole cause, but was a motivating factor. And then if it was a motivating factor, I think footnote 20 something of Arlene says at that point the burden shifts to the government to prove that it would have done the same thing anyway. And so I think just doctrinally, the court is now kind of blending together both steps of Arlen Heights. Their intuition seems to be they would have done the same thing anyway. So it's not really motivated by race. But at least under Arlen Heights, whether something is motivated by race is a different question from whether you would have done the same thing anyway. That said, despite trying to figure this out, I do not understand how they could be different. What does it mean to say you were motivated by something if you would have done the same thing anyway?

[A]

This is the whole problem of mixed motives. Right. This comes up in employment discrimination.

[B]

Yes. And even just conceptually, philosophically, suppose that I had five reasons for doing something, and I would have done it if any three of them had been true or any four.

[A]

Yeah.

[B]

Then on the one hand, when you single one out, you're like, did that motivate you? The answer is no. It's not even a but for cause it was totally immaterial. Not there. It wouldn't have mattered. But also, then you might be able to say that about every motivation, and it can't be the case that everything was immaterial.

[A]

Yeah. It seems like it's more best understood as kind of like an evidentiary point, which is the plaintiff needs to show, look, there's clearly reason to think this was in the mix. Significantly in the mix, and then burden shifts.

[B]

Right. But again, even in the mix, is it just the case that if I make racist statements about the people I am doing bad things to, that's enough to put it in the mix? I mean, maybe that's not a crazy rule and government officials shouldn't make racist statements. So I don't mind that. That's. That's the upshot. Of course, the same thing can come up in the other direction under the new equal protection doctrine, like under Calais and sffa, all these cases where now white people are going to have certain mixed motives. So if I'm an applicant for admission to a law school and I say, look, the admissions officer said, boy, I hate white people, is that enough for me to get in the door and force burden shifting? Or could they say, look, no, but still, they were applying the. You wouldn't have gone in even under race neutral criteria, et cetera, et cetera. Now, again, this is the interim docket, allegedly despite the long opinion and the deliberation, but there you go.

[A]

Okay, so more to say about merits.

[B]

Not from the attorney.

[A]

Okay. More to say about the majority.

[B]

Not for me.

[A]

Okay. And let's go on to the Thomas concurrence. So he's got two points. So one is that he seems to be pretty firmly convinced that there's no jurisdiction over the constitutional claim. But he joined the steelco part of the opinion. So he also clearly believes that he's still allowed to address that.

[B]

Yes. Which is funny.

[A]

Okay, so that's one. And then two, he thinks that no winning Equal Protection Clause argument because the Equal Protection Clause does not apply to the federal government, which insofar as looking at the text, seems true.

[B]

Right. And this is something he's written before.

[A]

Yeah. And it's not what precedent has said. Precedent since Bolling vs Sharpe has come up with a way around this where they say there is an equal protection component of the fifth Amendment Due Process Clause.

[B]

Yes.

[A]

Which he thinks is wrong. And again, textually original understanding. Wise has a pretty good point.

[B]

Yeah. I once started to write an article that wiser people dissuaded me from writing called the Unthinkable wrongness of Bulling vs Sharpe that argued that Bulling vs Sharpe was the worst decision of all time. Obviously, that would be a bad look.

[A]

Yeah, the worst of all time seems a little bit over the top to me.

[B]

Yeah, I agree. There is this funny irony though, which is that this becomes controversial again in the 90s when the Supreme Court. So affirmative action jurisprudence starts kicking off because the court briefly flirts with the view that states have to be colorblind. But maybe federal affirmative action programs are different because there's more evidence that the framers of the 14th Amendment might have been okay with various kinds of affirmative action and federal civil rights laws and so on. But then in Adorand the court can say, well, look, in Bolling versus Sharpe, we've said it's unthinkable that the standard would be different for the federal and state government. So they're the same. You could logically have the view, no, we're going to create a non textual equal protection clause in one direction, not the other. But you can see how once you create it. And there is also a great article by Richard Primus called Bowling Alone, which I've been meaning to check and see if this still holds up. But at the time he wrote it in the 2010s, I think the claim was that at the supreme court, the Bolling vs Sharpe principle has never resulted in the invalidation of discrimination against black people. It's been used in Adoran type cases to help white people. It's used in some gender discrimination cases. It's used for gay people in Windsor. But a Bolling vs Sharpe type claim the federal government has discriminated against African Americans has never succeeded in the Supreme Court since Bowling versus Sharpe.

[A]

Since Bowling itself, yes.

[B]

And there were a handful of lower court cases, federal courts of appeals cases, mostly Batson cases in federal prosecutions, where occasionally some US Attorney was found to have Violated Batson, but nothing major there either. And this maybe reflects a predictable feature of the.

[A]

There must be lots of Batson cases involving the federal government. Right.

[B]

I think there are not nearly as many successful Batson claims for federal prosecutors as state prosecutors.

[A]

Yeah, but it can't be zero, right?

[B]

Right. No, it's not zero. And I think some don't get appealed to the Court of Appeals. So it's not zero, but just that

[A]

one of those has never come to

[B]

the Supreme Court, or at least not one where the government loses.

[A]

Wow, that's fascinating.

[B]

It's not that there have been no cases. And so one predictable feature of this would be. It's just that the Supreme Court majority's view about racism is just not that out of step with the governments. It's not that the government. The federal government doesn't do racist stuff. It's just that it doesn't do racist stuff that U.S. supreme Court justices also think is racist. At least in that direction. In that direction. Whereas, of course, during the civil rights movement, a big part of what was going on is that the south had a view of racism that was way out of step with where the Supreme Court and northern elites were.

[A]

One of those contracting cases, is it Croson, is that a federal government one, or is it Adarand? I thought one of those was about a federal program and one was about a city program.

[B]

Croson is the state program and Adoran is the federal program.

[A]

But again, those are ones where the reverse discrimination.

[B]

Yes. So that was going to be part of the pitch for the bowling article, which again, was good. I didn't write. Was largely what bowling has done is not been to the benefit of the people. You might have thought bowling was supposed to help.

[A]

Yeah. Also he's got a footnote that says he does have this other theory that under the 14th Amendment's citizenship clause, that would prohibit certain kinds of discrimination among citizens with respect to civil rights.

[B]

Yes.

[A]

I don't exactly know what the full scope of that would look like, but it wouldn't necessarily free up the government to have open season in terms of various kinds of discriminatory policies.

[B]

Right. It's just not quite the same standard. And then also wouldn't apply to non citizens like the claimants here.

[A]

Yeah. And then he has a short section which is just saying. And by the way, maybe this is why we've never said that express racial classifications in immigration get kind of ordinary equal protection scrutiny at all.

[B]

Right. Because immigration law would not survive. Racism is so built into immigration law that it would not survive the application of our race discrimination precedents.

[A]

Yeah. Domestically you're not even supposed to discriminate on the basis of national origin. Right.

[B]

Domestically for states.

[A]

Yeah, yeah, yeah, yeah. For states.

[B]

Right, right.

[A]

Like if a state had a policy that like you can't be a teacher if you're Haitian, but every other national origin can. I think that would be an equal protection problem. Right?

[B]

Yes, yes.

[A]

But obviously at the federal level the government can say these countries, but not these countries. Right.

[B]

Well, an alienage. Even though the state has a rule that non citizens can't have various jobs, those are mostly such strict scrutiny and also unconstitutional.

[A]

Some of those have held up police officers, teachers, things like that.

[B]

Some you have to create some positions that you think are sufficiently government y whereas the federal government just says, I mean can discriminate on the basis of citizenship all the time. It's built in. The immigration laws are not as explicitly race based anymore. In the middle of the 20th century, around the time Baltimore versus Sharp is decided, that also changes.

[A]

So dissent by Justice Kagan. And with respect to the statutory issue, she is going to read the provision differently. Right. She says it applies only to. She says it does not. The judicial review bar does not apply to everything the Secretary does, but only to her determination with respect to the designation or termination or extension of a designation of a foreign state, which is statutory language. And so I think she's saying it applies only to the bottom line judgment, but not to other things that are not that bottom line judgment.

[B]

Right,

[A]

right. So it still makes this kind of failure to consult claim viable. Now, I mean if the plaintiffs won here. Right. All that would really be required is for the Secretary, now Secretary Mullen, just to go talk to a bunch of people, come back and say same result and that would be the end of it. Right? Yes. This is just a time buying thing.

[B]

Well, I mean there is a question. You might think that the consulting would either actually change the Secretary's mind or at least make it more awkward depending on what they were told to decide. The different. And of course here by now it would also result in the determination being made by a different person. So if you thought, I don't know if it's true that Secretary Noem was not open to reason and predetermined, but Secretary Mullen might be open to reason, then it would matter. Now again, those things would only matter to the effect that they ultimately did indirectly change the determination, which is the thing that can't be reviewed. But Justice Kagan has a technical argument that I don't think is right, but that it's not silly.

[A]

I mean, I think it is. At least there's a pretty good argument that the consultation thing was not followed adequately. And so the bar and judicial review matters a lot. Okay. And then going on to equal protection, I think that she obviously thinks it clearly doesn't apply to that claim, and she thinks it's a slam dunk winner on the merits. Right, right.

[B]

She recounts a bunch of the. She's a slam dunk winner on the. Did it taint that question? She would not get to the next step. She quotes a bunch of the statements which we've all seen on the Internet, but still, when you. When you see them all in a Supreme Court opinion. I don't even want to quote them on the podcast, Stan. They're bad.

[A]

They're bad.

[B]

And she says it is hard to imagine the statements being made today of any white community.

[A]

Yeah. And again, it's interesting to me because I think that maybe race is obviously part of it, but it also just does seem to me like bias about particular countries. Right.

[B]

Yeah.

[A]

Although again, I mean, they put in comparison stuff he said about Haiti and Somalia versus stuff he said about Norway and Sweden. And obviously there are significant racial differences between people from those countries, but there's a bunch of other differences too. Right?

[B]

Yeah. So it's not like Republicans are usually like Norway, Sweden worshipers in a bunch of other respects.

[A]

Yeah.

[B]

But yes, and there's specific implications of they're poisoning the blood of our country.

[A]

That's pretty bad.

[B]

That's really bad, Dan.

[A]

That's probably the worst one. Yeah.

[B]

And again, to the extent that this is about who bears the burden, on the one hand, I see the government's point that it may well be that they just hate all these immigration programs and, you know, the cruelty is the point, as they say. But you see Justice Kagan's point that it's hard to imagine saying these things about a potaway country.

[A]

Yeah, yeah. No, I think that's right. But again, I think the majority is right, that there's not the perfect test case. Right, Right. There's not white Somalia, which is next door to Somalia, that has all the other characteristics.

[B]

And that's why this technical question about even just like, how does the test work and what's the burden of proof, might, if you did it right, might in a case like this be outcome determinative? I mean, if what we're saying is, look, you could imagine that the racism is motivating it. You could imagine that it would have happened the same way otherwise, and there's not a perfect test case, then we're saying neither side is able to bear the burden of proving what would have happened. And then who bears the burden of proof is the ballgame.

[A]

Yep. Okay.

[B]

She does also make the point that this is interim relief and all the other factors should be considered. And this is going to lead to various terrible consequences for all the people effects, which I don't mean to slight, but the fact that you're over it, but it's not wrong. Yeah.

[A]

Okay. We spent a lot of time talking about that one. We should at least briefly talk about the other immigration decision, Al Otro Lado, which is longer. Right. But also potentially less legally interesting and maybe less practically consequential at the moment.

[B]

Yes. Okay. So I'm not sure about the practical consequences, but this is litigation over a long standing policy that I guess we call metering. When there are long lines of people who want to present themselves at the port of entry between the United States and Mexico, especially whether they all get to do that or whether we get. Whether the government can go and essentially stop a bunch of people from even being allowed to get in line.

[A]

Okay. Because under the law, it is clear that if someone walks into the country. Right. They walk into the border processing center or whatever you call this, then that triggers some legal obligations on the part of the federal government to evaluate their claim for asylum.

[B]

Right. If somebody shows up at the port, walks up to the immigration officer and says, I need asylum. From.

[A]

Well, walks up to the immigration officer. In the United States. Right?

[B]

In the United States, yes. And says, hi, I'm here and I need asylum, then there's an obligation to figure out what they're right about that.

[A]

Yeah. Or if they illegally cross and just show up to somebody in Chicago.

[B]

Yeah. Right. Once they are here and show up and present themselves and say, I need asylum, there's an obligation to figure out whether they're right about that. Or even if they're here and then living undercover and then found. And they say, oh, well, glad you finally found me, I need asylum. And because of the way the immigration system works, adjudicating those claims for asylum takes a long time. And in principle, I think the government could detain almost everybody who's asking for asylum. In practice, that's not workable or a good idea. And there's actually litigation about exactly when they can do that and so on. But so de facto asking for asylum could be a ticket to be in the United States for a while and all sorts of Things can happen while that's going on. This is a problem that has bedeviled some aspects of the immigration system at various points in the past decade or so. And so I think this policy originates in the latest years of the Obama administration, was continued by the Trump administration, terminated, brought back, terminated. But the core question is, under the statute, you have these rights when you arrive in the United States. And so the question is, are the people who are trying to arrive in the United states at the U.S. mexican border, but being held off from doing so, are they arriving in the United States?

[A]

Yeah. And so would you agree with me that if the statute had said arriving at arrives at, this is an easy case.

[B]

Easy case that they did arrive at.

[A]

Yeah. Someone says, first of all, I find arrives in kind of an awkward phrasing.

[B]

Yes.

[A]

It's not really a way I would phrase things, but I would say someone, he arrived at my house at 4pm Right. I would say that that was the moment that he stepped up to my front door and rang the doorbell, not when he entered my house.

[B]

Yes.

[A]

And in fact, someone could arrive at my house even if I'm not there. And they're not ultimately able to gain entry.

[B]

Yes. So I think that's right. I think arrive at would make it much easier. And that's arguably what makes the majority right, is that arrive in sounds different from arrive at. Now, that said, I think even if there were an arrive at clause, we probably would have a slightly different version of the policy that would raise some of the same questions. So if it's arrive at your house and so you set somebody up in your driveway to not let me get to your house, whatever at your house is. Now, it's a little, you know. Yeah, but you see how I feel

[A]

like arrives at teen phase to me. You get to the actual threshold, even if you do not cross that threshold. But if someone is stopped from even reaching the threshold, then maybe they didn't arrive at.

[B]

Right. Now, here's the other. So as I understand it, and I'm getting some of this from the opinions that's also I may be misunderstanding, but as I understand it, the earlier version of the statute, before Irrera, the Clinton era immigration reform did use at it referred to at a land border or port of entry can apply and they replaced it with in the United States, arrives in to include people who arrived not at a border or a port of entry. But then the question is, in changing that their goal was to change the nouns or the object, the place that you arrived and the course of Changing that. They also changed the preposition. And did that change in preposition result in a change in meaning is a kind of interesting textualist versus intent question.

[A]

Yeah. And there's some. That is the majority's kind of explanation. And it says that in response to the argument that if you treat arrives in as requiring physical presence in the country, like actual entry, then it ends up making the statute kind of redundant. Because there's another provision that talks about physical presence. Right. Because you could just say, well, if anybody who's physically present triggers these obligations, then you could just skip the arrives at. Yes, sure. You could skip the arrives in. Right.

[B]

Although. Yeah. Unless you think that arriving and being present are two slightly different stages. But. Yes.

[A]

I mean, it struck me as like is present as someone who's going to show up later versus arrives in as. I just got there. So it didn't strike me as obviously totally redundant that you might want to just make clear that there's two points at which this might happen. Right.

[B]

Yeah. I mean. Yeah. And then I think. So the dissent also makes the point just that in terms of the motivation, the underlying motivation of the statute, the asylum regime comes out of the World War II experience of the failure to accommodate Jewish refugees from the Holocaust. And like the St. Louis, a boat that was full of Jewish refugees and famously docked, tried to dock here, but was prevented for.

[A]

They were prevented from entry. Right, right, right.

[B]

And I think one purpose of this legal regime is to make sure that doesn't happen again, to make sure that if you show up here on the St. Louis, we have to figure out whether your refugees have to figure out whether or not they're going to be killed in the Holocaust rather than just say, not our problem. And under the majority's view, I think it is now clear that we could not let the St. Louis stock and say, now they never arrived here.

[A]

Yeah.

[B]

Now, I mean, maybe.

[A]

Or even let them dock but not get off the boat. I think.

[B]

Yeah. There's a little question of where the in versus at is, because I think in the fact of this case, the applicant's feet are still outside of the territory of the United States. So depending a little bit on where the dock is.

[A]

Yeah. I just don't know what counts, if it counts as entry if you're still on a boat.

[B]

Right, exactly. Whereas that's failing to respond to the evil the statute was designed to address. I mean, it's a standard. Now. One response is the asylum regime has changed and we just can't do things the way we anticipated. A Different response is, well, even if that was the intent, we're textualists now. And swapping the at for an in in the 90s accidentally maybe causes the statute to now turn a blind eye to the second Holocaust.

[A]

Yeah, it's one of those cases where the majority uses these everyday language examples which I find not really helpful. This is on page eight of the majority. Everyday examples confirm that understanding that in means actually inside. A running back does not arrive in the end zone when he reaches the one yard line. A guest does not arrive in a house when he knocks on the front door. An army does not arrive in a city by encamping outside its walls. And a letter does not arrive in a mailbox while it remains in the mail carrier's hand just inches away. So I don't find those helpful because they all just reinforce for me the awkwardness of this phrasing. I've watched a good amount of football in my life. I don't ever remember Madden or somebody saying the running back just arrived in the end zone. Yes. It's just not the way people talk. I certainly don't. I'm not sure anyone ever has said my letter arrived in the mailbox. I think it's quite possible that phrase has never been uttered. Maybe you're googling right now to try to prove me wrong, but I just, I don't think that's the way people talk. I think when you use the phrase arrive, you almost always say at.

[B]

Yeah, I agree. And that just makes me not sure what to do with it at all.

[A]

Either way, a guest does not arrive in a house. I mean, no one. I've never heard someone say the guest arrived in my house.

[B]

Right. Sotomayor has three. And what's funny is some of them worked for me and some of them didn't. So she has three arrives in that are more natural. So she says, for example, a train doctor's announcement we are arriving in Penn Station might mean that the train is inside the station or merely that it started slowing down half a mile away. And I guess my reaction is no, no. I mean arriving in Penn Station is a little weird. But if they said we are arriving in Penn Station before we have when we're half a mile from Penn Station, I would think that's premature.

[A]

I think it's the present participle. Right. Changes everything. We are arriving, the plane is landing right now. Does not mean the plane has touched down.

[B]

Right.

[A]

Good to say landing means being in the air.

[B]

So her second example works for me, which is if someone said call Me, when you arrive in Washington, D.C. it would be logical to call them when you've landed at DCA Airport just across the river, Virginia. That one I totally agree with.

[A]

But I think I agree with it not for reasons of the construction of the word arrive.

[B]

Right. Maybe we just agree with it because DCA is functionally in Washington, D.C. even

[A]

though I think people just say, look, Northern Virginia, at least in the context of talking about arriving to a city on a flight, you mean it really means when you land. That's what people mean by that.

[B]

Well, I have to say that sentence is one where arrive in was the only sentence I read in this whole opinion where arrive in sounded idiomatic. That actually sounded like a thing you would say.

[A]

Yeah.

[B]

And it is true. That is a case of arrive in, where you have arrived in the place that you would logically arrive as part of your process to get into the city, even though the entry place is not in the city. That just happens to be a fact about tca, but maybe it's also a fact about the San Ysidro port of entry that you've arrived in the United States even though you are in the DCA equivalent, the area that is not technically in the United States, but is the place everybody arrives when they're trying to arrive in the United States.

[A]

Now, nor would it be premature to say someone arrives in San Francisco while she is still driving on the Golden Gate Bridge. I'm not sure that's right. Not sure that's right at all.

[B]

Me neither. So here's the thing. We live in Chicago, which is in Illinois and is right next to Indiana and Michigan, places we regularly drive on vacation. And as you drive to those places on the Skyway, there are these signs like now arriving in Indiana, now arriving in Michigan. We pass them and we say no to these.

[A]

Middle of the bridge, at the end of the bridge.

[B]

Well, I've always assumed that they're at the border.

[A]

Yeah. Yeah, that's what I would have thought.

[B]

And if they're not, my reaction would be not. Oh, yeah. That proves that arrives in is a proximate concept. But those signs are in the wrong place.

[A]

Yeah. Okay. And then she's got another one example from a movie theater policy. Yeah. Anyone who arrives in the theater may buy a ticket, and all moviegoers must have their tickets scanned before entering.

[B]

Yeah.

[A]

If a person walks up to a ticket booth located just outside the theater, it would be unreasonable to think they could not buy a ticket under the policy because they are not in the theater yet. This makes no sense to me.

[B]

Well, okay, this one makes sense to me, but not quite the way she does it. Not quite on textual grounds.

[A]

Well, it makes no sense because this is a bizarrely written policy, and if you read it, you would just be like, what are they saying? First of all, no one would read this to suggest that you can't buy a ticket somewhere else. Right.

[B]

But you might imagine, I mean, this is a little like the theater previously was not just selling tickets to all comers. They had some special dealing policy. They weren't just letting you come up and buy a ticket. This is saying they can't do that anymore. Anybody who comes gets to buy a ticket.

[A]

Yeah, but that's may buy a ticket, not may only buy a ticket.

[B]

No, imagine the theater. It's a right of the. It's a right of the buyer, like the asylum statute. Anybody who shows up can apply for asylum, and anybody who arrives at the theater could buy a ticket. And if the theater tried to evade the rule by saying, okay, it's true that if you arrive in the theater, you can buy a ticket. So we have set up a checkpoint outside the theater to stop anybody from

[A]

arriving in the theater where the theater's closed. Right. The door of the theater is closed.

[B]

Right. Obviously, that policy is an evasion of the purpose of the rule. It might or might not be a violation of the text of the rule. And then we just get into textualism versus purposes. But the fact that everybody is deep in on trying to come up with phrases of the word in.

[A]

But if you saw that, you would just be utterly baffled by the phrasing. Right, Right.

[B]

Well, look, everybody is obviously utterly baffled by the phrasing of the immigration laws. There are all these respects in the opinions of the like, well, this is redundant with this. And what's the purpose of that? Why do we have this? Some people would say this is what proves textualism to be a sort of failed or overdone project. Other people would say, boy, if they're baffled at this level, just imagine how much worse it would be if you ask them to start trying to figure out the intent of the arrierro compromise. This is at least something like a

[A]

generalist can grasp the dissent. Obviously spends a lot of time on the practical consequences here, which I think are significant. Right. I mean, this is. First of all, there's, I think, kind of two overarching things. One is this creates weird incentives because it does mean that if someone gets into the country illegally, they then can go present themselves and say, I want asylum. But if they try to enter semi. Lawfully, I guess, but they try to enter and then claim asylum at the border, which I think is. Is lawful. Right. It's lawful to do that. Does that seem right?

[B]

Sorry. It's lawful to present yourself and try to claim asylum.

[A]

To not cross the border.

[B]

Right. But it might not be lawful to present yourself at the border because it might stop you from presenting yourself at the border. No. Now, if you have a claim for asylum or even wish to make a claim for asylum so you can buy time to live in the United States for any amount of time, you have strong human incentives to swim across the Rio Grande rather than to go to the port of entry in an orderly fashion. And that's bad.

[A]

Yeah. And that's dangerous.

[B]

Dangerous.

[A]

And the other thing is just, look, this policy is going to cause a lot of people to suffer or die. Suffer real harm while they're waiting.

[B]

Yes.

[A]

Okay. The majority. Its main response to that is a footnote which says. And this is footnote five on page five, the centerpiece of the principal dissent is an impassioned argument against the administration's policy choice. We have neither the ability nor the authority to assess and countermand that choice. And the dissent seems a little annoyed by that and sort of responds and says, look, that is in a footnote. Footnote 4. And page 9 of the Principal dissent says, this is not what we're doing. This is just. We're reading the statute. If this metering policy were authorized by the statutes Congress enacted, I would not be in dissent. Okay. Tons of other stuff to talk about before we ran out of time. One is mootness. Right. This is something. A jurisdictional thing. This is kind of one of your issues lurking.

[B]

Right. So, I mean, this policy is not currently in effect.

[A]

Right. Yep.

[B]

Or at least not in the Ninth Circuit.

[A]

Yeah. I think they're not doing it.

[B]

Yeah.

[A]

And, you know, so there's an argument that why is this challenge going to go forward if this is a policy that's not in effect? Footnote seven, majority just says, you know, we agree with the Ninth Circuit that it's not moot. Although the government has rescinded this policy, the respondents have not carried their burden to establish. It is absolutely clear that the government would not reimpose metering if it could.

[B]

Right.

[A]

Okay. Justice Jackson doesn't like that. She writes a shorter dissent of her own that says this is an advisory opinion for this reason.

[B]

Yeah.

[A]

The one thing that's interesting is that I think if this case had come out a few days later, she could have cited Justice Alito's dissent in Chatri. Right, yes, yes, that might have been helpful, but that was not available.

[B]

It's interesting. Even in Chatri, Alito goes out of his way to say, when I'm saying it's advisory opinion, I'm not saying we lack jurisdiction, I'm just saying we shouldn't do it.

[A]

Yeah, that's fair. But then she also goes on to say we shouldn't have decided this because of our discretionary cert docket. And that's a place where there really was some good stuff in Chatri that she could cite.

[B]

Right. Although they're also, if it's a matter of discretion, the majority can say, look, we think the discretion is different because this is ongoing declaratory judgment that binds the government and we have given those. So she makes one just doctrinal point that is worth flagging. So the kind of place the bucket this goes in is the so called voluntary cessation exception to mootness. So if a policy is not in place, it's not necessarily moot if the reason it's not in place is just because the vent stopped. And the obvious example is like, there's a factory that's polluting, and I sue to get an injunction to tell them to stop until they turn off the factory. And then as soon as my case is dismissed as moot, they start at the factory again. And then because filing fees cost money and it takes time to get a tarot, it's not going to work very well for me. How much further than that you go is a thing about which there has been mixed signals, as the dissent says, quoting the Hart and Wexler casebook. What Justice Jackson then says is also maybe the exception shouldn't apply where it's the voluntary Caesar invoking the voluntary cessation exception.

[A]

Which sort of makes sense to me.

[B]

Well, sort of, although the opposite norm, when the voluntary cessation exception comes up where I have stopped and I say I've stopped, and the question is, do you believe me? I say I don't want to do it anymore. And then the voluntary cessation exception says, you kind of shouldn't believe me because I might just be saying that opportunistically, but here the defendant doesn't even say they don't want to do it anymore. They say, we might want to do it, we want to retain the option of doing it. And so we could just believe them.

[A]

Yeah. Although, I mean, I guess it might depend on maybe they would need to make some showing that it's not just totally hypothetical. They're like, yeah, there's a good chance we're going to want to do this, or something like that maybe.

[B]

Right. But I mean, so if you were going to have a different standard for the defendant, it's not obvious that the dissent is right, that it should be a higher standard rather than a lower standard.

[A]

Yeah.

[B]

And so, yeah, that's an interesting wrinkle. Again, practically this is a policy option that has been on and off the table at various times. And so now it's back on the table.

[A]

Okay. Back on the menu. And then a short by his standards, concurrence by Justice Thomas again. And so here I guess there is also sort of like a jurisdiction stripping type provision that is potentially applicable.

[B]

Is this the induction bar?

[A]

Yes. Section 1252 F1 basically says that no court other than the Supreme Court shall have jurisdiction or authority to enjoin or restrain the operation of certain parts of the Immigration and Naturalization Act. And then there's an exception only for relief granted on an individual basis. And so basically it bars kind of class wide injunctive relief at least. And then there's a question of whether that extends to the kinds of declaratory relief that we're at issue here. And he's like, basically these are the same.

[B]

And there's a 2022 case, Alaman Gonzales, that he's drawing on to say that. Then he says something a little wild, that even if the statute did authorize this injunction, it would raise serious constitutional questions because the President has inherent Article 2 authority to exclude aliens from the country. And this is building on something he said before, but in this fact pattern he'd be saying, I guess he'd be saying, even if our response to the St. Louis was to sign treaties and laws saying never again, you've got to give these people a chance to stay in the country, the President perhaps retains a unilateral ineradicable authority to just say no.

[A]

And that is from the Article 2 alien power. Right. Is that a clause that's in there?

[B]

All. It's from the executive power. 10 yeah.

[A]

So this is, I mean, because to the extent the Constitution addresses this, it seems to address it in Article 1, which says gives Congress the power to establish. I don't really know how they would have pronounced this at the time because they use, instead of a, they use

[B]

an, an uniform rule. An uniform rule.

[A]

An UN uniform. Did they say differently? Did they say like uniform or something? I don't know, an uniform. Or did they just have different rules about indefinite articles.

[B]

Doesn't Connor Clark say we just don't know how to pronounce anything?

[A]

Basically, yeah. By the way, he got mad at me because he said that I had previously told him that I got the governor thing from you, which I don't think it's true that I did, and I don't think it's true that I said it, but

[B]

okay, it's possible anyway. That said, Article 1 gives Congress the power of naturalization, which is the power to decide who becomes a citizen when you're here.

[A]

But it's not necessarily admission. Right. It's different.

[B]

Right. That's the part it's not crazy to think the admission powers the question of who should live here as a non citizen and the question of who should be a citizen are different. And it's not crazy to think Congress has powers to make people citizens. But if Congress isn't willing to make people citizens and give them full civil rights, then the President can decide who gets to be kind of milling around. That's not the way the laws worked.

[A]

But yeah, no, I'm not saying it's obviously wrong, but it is non textual. Right. He's drawing on Blackstone, who says the king can send alien friends home whenever the king sees occasion.

[B]

Right. Well, it's textual in the following sense. The theory of the executive power is the executive power was all the stuff the king could do, except for the stuff that's been given to Congress.

[A]

Yeah.

[B]

So if the King could do it and Congress got the naturalization power but not the expulsion power, then it's not explicitly textual. But that's the theory. And it's a very prominent controversial theory of the executive power that I don't hold. But some people do.

[A]

Okay, anything else to say about this one?

[B]

It's been a long one, Dan.

[A]

Okay, well, thanks very much for listening and bearing with this steady stream of episodes we've been giving you. Hopefully the people that compl about us being insufficiently scheduled will be appeased for a while. Rate and review the podcast, wherever you get your podcasts, and please pass it along to friends, colleagues, co clerks, employers, opposing counsel, basically anyone you interact with, because we are always looking to expand our audience. Visit our website dividedargument.com blog.dividedargument.com for commentary from us and our friends in the extended divided argument universe. Store.dividedargument.com for merchandise. Send us an email podividedargument.com leave us a voicemail 314-649-3790 or using the function to leave a voice message on our website.

[B]

Thanks to the Constitutional Law Institute for sponsoring all of our endeavors, and thanks

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very much to SCOTUS Blog, with whom we are in partnership. So SCOTUS Blog readers who are just discovering the show, thank you for joining us and hopefully you you've borne with us until the end of the episode. If there is a long delay between this and our next episode, it will be because I am on vacation for two weeks and I did not successfully bring my recording equipment with me and or I did not find a minimal time late at night to record as well. The case is submitted.