Isaac Saul (3:01)

This is why I love you. You start with breaking news, you make my job easy. I don't even need a transition. So I want to start there. This Supreme Court ruling came down. So, I mean, my layman guy trying to understand court challenge world stuff, is California redistricting that now a go, right? I mean, this was the last thing that could have blocked it. And maybe just the latest signal that Supreme Court's kind of hands up about gerrymandering. That's not our thing. We're not touching that or getting involved now that we've had a couple rulings last year. I mean, give me the lay of the land here. What does this mean? Any larger implications? I know it's an unsigned opinion, and it doesn't seem like there was much explication of the ruling. What are you seeing? Where are we now?

Sarah Isker (3:47)

There's a few fun things to note about this. So first of all, lay of the land. In 2018, the Supreme Court said, we're not doing partisan redistricting. That's not our problem. That is something that we can't come up with any standards by which judges could have principled rulings about when is it too partisan? And so that's just a political question. And the political system is going to have to work the way it's supposed to. If you don't like how they gerrymandered your districts, vote the bums out. And obviously states have actually reacted to that. We've had lots of nonpartisan, bipartisan commissions pop up in lots of states. I'll tell you, fun fact for our poli sci majors out there. The data on this is fascinating because I think we all thought this is going to be so much better to have these commissions decide the district maps hasn't made any difference in any of the things that we really look at, like incumbent retention, competitiveness of the seats. So I don't know, kind of a bummer on that maybe, or.

Isaac Saul (4:45)

That is a bummer.

Sarah Isker (4:46)

I don't know what it. It's something. It's definitely something. Okay, so fast forward. And of course, we redistrict after our census every 10 years. But Trump this time was like, but we can redistrict whenever we want. And I think I can squeeze some more Republican districts out of Texas. Five, to be precise. And when the House is as tight as it is, five districts looks like a lot. So Texas redistricts and they're sued all the way up to the Supreme Court, where the argument is, we all know this was done for partisan reasons. But the stated reasons that they gave, including that Governor Greg Abbott gave on Jake Tapper's show. So like we have the video is he says it's because of a previous racial gerrymander. And so they're just trying to fix this and they're using race to do so. Well, that would be illegal, especially when nobody found that there was a previous racial gerrymander. But saying you're using race to draw districts is a no, no. But the Supreme Court was like, let's be real, this was partisan. You can't, you know, we said we were out of the business of partisan redistricting. And so now all you guys just come with your partisan redistricting complaints, but claim that they're racial gerrymandering when we all know they're partisan. All right, so that was in November, early December, fast forward, here we are in February, California retaliates against Texas, does their own mid district, mid cycle redistricting and same thing. That was a two to one decision of this three judge panel. And the dissent was like, this is clearly racial. They said they wanted to create stronger Latino districts. Latinos aren't even a minority. They are a majority or the plurality group in the state. This is racial gerrymandering. The definition thereof. And as you just said, the court with no noted dissents, just was like, not our problem. California, feel free to have thoughts of this on your own. Interestingly, in this one, by the way, it says the application was received by Justice Kagan, who is the ninth Circuit's fairy godmother. Each circuit gets their own justice fairy godmother by her, referred to the court and denied meaning, like they didn't ask for more briefing like this was just, naw, dogged from the get. So I think the main thing to take away from this is when they said they are out of the business of, you know, being the hall monitor for your gerrymandering and partisan redistricting, they meant it. Stop, you know, complaining to mom after dad already said no.

Isaac Saul (7:17)

Interesting. Yeah. I mean the political consequences here are fascinating because Trump obviously accelerated some of these gerrymandering wars. And now because of these court decisions, I mean, I don't know what the latest count is, but I know I follow people like Dave Wasserman from Cook Political Report who are saying like Democrats might come out ahead or even it might end up just being a wash in terms of seats picked up from all this gerrymandering happening across the country. When you actually net out the court rulings and Things that are getting blocked. I know. I think we have. We're awaiting stuff in Virginia still. Maybe now Democrats just took a hit there. So it's crazy. While we're at the Supreme Court, one of the questions I had for you is actually about one of the rulings we haven't gotten yet, which people like me have been desperately rubbing our hands down the window.

Sarah Isker (8:07)

Which one you're talking about?

Isaac Saul (8:08)

Yeah. Which is the big tariff ruling. And it hasn't come. And I would like to know why. And I'm sitting across from somebody who maybe has an answer. I don't know. Can you tell us what's going on, what your maybe suspicion is about why we haven't gotten a ruling here yet? If this is odd, if this is unusual, if it's just like I'm in the media and creating hype about a nothing burger, what's happening here?

Sarah Isker (8:34)

Okay, so for all my moms out there, you know that there's nothing worse than going past your due date. And like the rest of us created this due date for the Terrace case of really, like that first week in January, and here we are in February and that baby has not arrived. And there's a lot of consternation. Here's some things worth putting into your, I don't know, your bucket of thoughts on this, and they kind of all come out different ways. On the one hand, this is actually a merits case. You know, we try to talk about the difference between the interim docket, which is how you decide, like, what the status quo is going to be while a case is getting decided. They tend to do those relatively quickly. You know, everything from a couple days to, we've seen a couple months now. But they don't fall along the normal life cycle of a case at the Supreme Court. This is not an interim docket decision. This is a merits docket. And in past years, we have all very much believed that, you know, a case can get argued in October, November, as this case was, and we may not hear about it again until June. So in some sense, the fact that any of us thought we were going to get this case before June is a little weird. A merit stocket decision. We usually don't get the ones that are most difficult, most contentious at the court, most likely to have dissents or multiple concurrences until June. So why are we all gnashing our teeth? On the other hand, the Supreme Court didn't stay the tariffs while this case was pending. Back to that interim docket question. So the tariffs have been continuing While we're all just waiting. And so for a lot of us, we thought that the argument didn't go particularly well for the government. We thought for a whole lot of sort of vibes based reasons that the court was likely to strike down Trump's tariffs. Well, if you're gonna strike down the tariffs, I'd wanna do that sooner rather than later, considering that those unconstitutional tariffs are still being applied every day. So that's why we all thought and ignored sort of that June lifecycle of the court and, and thought we would get something in January. I'll tell you this, if you want to combine those two thoughts into one, every week that goes by where we haven't gotten a tariff decision is I think it raises the odds slightly that the Trump administration wins the tariffs case. If you're taking bets right now, everyone, I think would still tell you the likeliest outcome is that he loses the tariffs case. But I think they would agree that that's ticking down as time goes by. Because we think it would be a little bit weird to wait till June to strike down tariffs that have been charged the whole time, which means they would need to be refunded potentially, or they're gonna say you can't refund them, in which case why were they allowing them to be charged this whole time, Et cetera, et cetera.

Isaac Saul (11:20)

So the logic is the longer this ruling comes down, the longer it takes for this ruling to come down, the higher the odds. You think it actually comes down in Trump's favor? Because if the court knows they're gonna strike it down, then logically you'd expect that they would really fast track getting this out. Otherwise they're creating a bigger and bigger mess with every dollar of tariff revenue collected in the meantime.

Sarah Isker (11:44)

Basically, that's the theory.

Isaac Saul (11:46)

Interesting. Okay, well, I guess while we're there, I mean, where are you landing now? I listen to your show and for those who don't, advisory opinions. Awesome podcast. It's one of my go tos for understanding what's happening in the Supreme Court world as well as SCOTUS blog, which now the dispatch owns and operates. So you guys are building your little Supreme Court monopoly. It's awesome to see. Tell me where you were when the oral arguments happened on that case. Did you think Trump was going to win? And has your opinion changed at all? Because this time has passed now.

Sarah Isker (12:19)

I thought you literally meant like where I was in my house and I was like, I'll tell you, but I really like listening to oral arguments. Like while I'm doing House chores, because my sort of, like, my hands are busy, but then my brain can really focus. So that's my tip for those who are interested in listening to the oral arguments. So this case, remember, turns around iipa, which is really fun to say, the International Emergency Economic Powers Act. And it's a statutory construction case. So in some ways, it's the bread and butter of what the court does. Also not that sexy a lot of the time, just in terms of, like, the rules that they're kind of applying. And in many ways, this case looks nearly identical to Biden's student loan debt forgiveness case. Right? You have a president going back to a statute that is several decades old. Biden was going back to a 2005 statute called the HEROES Act. And here President Trump is going back to a 1979 statute, I EBA and they're finding kind of vague language and then saying, this thing that I wanna do now was contemplated in that very vague language. So Congress gave me, the president, the power to do this big, big thing that I now want to do. Of course, in the student loan debt forgiveness case, 6 to 3, the justices said, nope, if Congress wants to give you this power, they are welcome to do so, but they didn't already give it to you. And because that language is vague, ambiguous, however you want to think about that, we're gonna say that Congress has to speak more clearly if they're gonna give the President the sudden power to forgive $400 billion in loans. So the tie goes to Congress, and so you have to go back to Congress again. It looks really similar to iepa. The president's claiming the power to raise all this revenue based on this very, very old statute. And so it would stand to reason that the court would say something like, if Congress meant to give you this power, they are welcome to do so. Maybe a little caveat there, but probably welcome to do so. But they need to be really clear about it. We'd like to see them use words like tariffs or duties or really anything related to what's going on right now. The one problem with why it's not the same as the Student Loan Debt Forgiveness act is that student loan debt forgiveness is a domestic policy question. That's Congress's bread and butter. This is foreign policy. This is how we, as the United States, interact with foreign nations. Well, that's not Congress's bread and butter. It is within Congress's power to lay and collect duties, tariffs. But the president also has foreign policy powers, obviously, as commander in chief, to negotiate treaties et CETERA So this is a little bit better for the President than I would say that Biden's was. But again, for most legal scholars, they would say, you know, close doesn't count except in, you know, horseshoes and hand grenades.

Isaac Saul (15:12)

That makes a lot of sense to me and I guess to just follow up and maybe try and pin you here a little bit. Was your suspicion that Trump was gonna lose this case before and you're feeling less certain in that suspicion now? Like, how are you landing on that spectrum?

Sarah Isker (15:27)

Yeah, I went in feeling really certain that he was gonna lose the tariff case. And the oral argument made me less certain. Certain hearing from Justice Gorsuch, he was like, pew, Pew, this is Congress's job. You guys are out of your minds. I was like, oh, okay. But Justice Kavanaugh, much more like, well, the President needs to be able to have a bit of latitude in dealing with foreign countries. And then I heard both sides from the Chief justice and let me just tell you, you cannot count to five striking down these tariffs without the Chief justice in the majority. Now, again, he said things that were very critical of the tariffs too. But this is why oral arguments can be a lot like tea leaves. The Justices are genuinely asking questions and testing out their own theories. You don't know whether something is a steel man that they're testing out so that they can figure out how best to defeat that when they're writing or if it's really genuinely how they are currently thinking about the case. So I don't know.

Isaac Saul (16:27)

Foreign. We'll be right back after this quick break.

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Sarah Isker (17:52)

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Okay. It's just that when people say knock.

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Isaac Saul (18:31)

Very interesting. All right, well, while we're here, you know, orbiting the Trump administration and some of their, I guess, far reaching executive actions, I think it's worth talking a little bit about what has been the biggest story in the country the last few weeks, which is some of the dhs, ice, CBP operations happening in Minnesota. There's been so much, I mean, there's the shootings that have happened and their legality and who is in the right, the wrong. There's all the immigration enforcement stuff. But there's actually some things that I think are even more directly in your wheelhouse, which is some of the sort of legal precedents for the actual actions ICE or CBP are taking to search people to enter homes. And my understanding from reading a ton about this and trying to inform my audience about it has been that a good deal of it comes back to some Supreme Court cases and sort of reading the tea leaves of past rulings and trying to understand where we are in terms of Fourth Amendment rights right now, one of the debates that is broken out and that's currently being, you know, that members of Congress are currently wrangling over is the degree to which administrative warrants versus signed judicial warrants give somebody like an ICE agent the power or authority to enter somebody's home. They suspect of being here illegally and whether that's a violation of people's Fourth Amendment right. So there's a lot there. I'm going to narrow the question to you to just ask if you could maybe explain a little bit about this administrative judicial warrant debate and what the sort of court precedent is around it, what some of the open questions are. And maybe in direct terms, can an ICE agent legally knock on somebody's door and say, let me in with an administrative warrant if they suspect there are people inside who are here illegally?

Sarah Isker (20:28)

Okay, so let's do a little Fourth Amendment 101. Remember, this is the amendment that says people shall be secure in their persons, papers, documents from unreasonable searches and seizures, except with a warrant signed by a neutral magistrate. You know, someone with Article 3 protections, life tenure, salary, protection, all of that stuff. So what we've said is, like, if I think you committed a crime, and I have the probable cause to think that, I can go to a judge, get a warrant signed, and I can walk into your house and look for that now. And if I do so, I get to collect all the evidence and I get to use that evidence against you in court if I suspect you of a crime, but I don't go get a warrant. And again, this is gonna be really 101. Cause there's so many exceptions to all this stuff. But I go into your house and find evidence of a crime and then arrest you for it. But I didn't have a warrant. We're going to exclude that evidence from your trial because I violated your Fourth Amendment rights. And even though the Fourth Amendment doesn't actually say, like, what we do about that, judges, the Supreme Court several decades ago, decided that the only remedy that would actually work to protect people's Fourth Amendment rights was to exclude that evidence from trial. But if you think about that for just a second, it's a little bit weird, right? I violated your Fourth Amendment rights, but I also found a severed head. So, like, we now know you're a serial killer, but we're going to let you go because we place your Fourth Amendment rights at a premium above, for instance, societal protection. We really care about Fourth Amendment rights. That's the punchline of all of this. All right, so what are administrative warrants? These are warrants.

Isaac Saul (22:12)

I'm sorry, I have a question really quick. Just to interject, before we get to administrative warrants. I don't want you to lose that thought. I guess one like, as it relates to someone who's here illegally, I mean, if that person gets deported if somebody enters without that warrant, the judge signed warrant, and there's evidence they're here illegally and they get deported, it's sort of like, okay, well, they can't do anything. They can't, you know, respond to that.

Sarah Isker (22:38)

Deporting someone isn't a crime. Like, that's not, we're not looking for evidence of a crime. Deportation is a civil process. So that's why they don't need a judicial warrant to, for instance, deport someone if you are suspected of being here illegally. They can simply, you know, find with an administrative judge someone who is not a federal judge under Article 3. They are, in fact, in the executive branch. They work for the president and they don't have all the protections of a federal judge. And so they find these immigration judges determine whether you are deportable because it's not that you're committing a crime necessarily just because you're deportable. That is simply an administrative process, not a judicial process and not a criminal process. We're not depriving you of your liberty or your property. I mean, that's what you should really think of as the difference between criminal and civil. And am I depriving you of your liberty and property? That better be a criminal case. Am I doing something else that might be civil? And so immigration is civil and that's why you have these administrative warrants. So I can deport someone through this civil process. Like we said, can I go get them to deport them through this civil process with again, just that administrative warrant that has been signed not by a judge, but by someone within the executive branch, sometimes not even an immigration judge, but actually an immigration official, you know, who has no neutrality issues whatsoever. We don't have a perfect answer to this. There's not an on point Supreme Court case about this exact situation. But generally speaking, they look like they would hold that an administrative warrant is not enough to go into someone's home. And let me just like issue, spot some other interesting things around here. You, an illegal alien, are in someone else's home who is a U.S. citizen. Are they violating their Fourth Amendment rights by going into that house? And if they are, but they don't charge that person with a crime, what is the remedy? Right? Because you can't just exclude the evidence from a criminal trial. They're not going to criminal trial. But you still violated their fourth Amendment rights because they're a US Citizen and you entered their home without a warrant, but no remedy anyway, you can see how this would get really messy if there's no Fourth Amendment protection here whatsoever. And that's kind of where we are. Obviously, the administration says administrative warrants are enough because immigration is a civil process and civil libertarians are like, you're entering my home. The hell you are. I want this signed by a neutral magistrate, a federal judge.

Isaac Saul (25:18)

So, I mean, I guess given all that, it seems like there's kind of fertile ground for some legal challenges here and maybe to figure out. Figure this out in court. I mean, do you suspect that we're going to see some challenges that maybe rise to the level of getting us some clarity on these questions?

Sarah Isker (25:37)

Maybe. But we also have a line of cases that says, for instance, let's go to another headline that we've all forgot about, but when the United States captured Maduro and brought him back for trial, there are questions over whether that arrest was constitutional. Let's assume for a second it was not. What's the remedy for that? Nothing. The Supreme Court has also said that an unconstitutional arrest is not remedied by letting the person go or not having the criminal trial. So there's not a whole lot to do about being unconstitutionally arrested. Similar thing. Right. Like, let's even say that someone who is here illegally has a Fourth Amendment right. Right. You have to answer that question even before whether this administrative warrant violates their Fourth Amendment right. They're not citizens, so we deport them. What's the remedy? It's not bringing them back because that would be the similar to like the arrest situation. So it's really hard to say how a lawsuit would arise in this situation, except. Except from a US Citizen whose home was they went into with an administrative warrant looking for someone else. And again, your remedies just aren't great when we're talking about federal officials entering your home violating your constitutional rights. Congress has not provided for any, like monetary damages, for instance.

Isaac Saul (26:59)

Right. Well, we're in the weeds now. But I suppose the maybe a potential tangle here is, no pun intended, is an American citizen sues DHS or sues the federal government for an ICE agent entering their home looking for someone here illegally, and that American citizen, I don't know, wins that case or gets some kind of traction and maybe slows down the rate at which DHS can use these administrative warrants, send to the home, or narrows the situations where they can potentially. I mean, I'm just thinking about, like, if we're going to see any kind of legal challenges born out of some of these actions. Because to your point, you know, what I'm seeing in the discourse is that There's a lot of people saying, hey, look, I want illegal immigrants ground too, but I don't want the federal government to be able to knock on my door and barge in with just an administrative warrant. They need a judge to sign something for that. And a lot of people on the other side saying, look, we've been using administrative warrants for immigration enforcement for years now and all of a sudden you guys are pissed off about it when like, this is something that's been happening and been accepted and they're here illegally so they don't get to claim fourth Amendment rights. I mean, it does seem really, really sticky.

Sarah Isker (28:15)

Yeah. I mean, you want to get in the weeds for a second. The way this case is going to come up is that someone is going to seek an injunction against the Department of Homeland Security and say that I am. They are likely to use an administrative warrant to come into my home for these various reasons. I have illegal aliens as relatives, for instance. And so I have a very particular and unique fear that they will do that and that violates my fourth amendment rights. So I'm bringing this lawsuit not for money damages, not to prevent deportation, not to get something thrown out of my criminal trial, to prevent them from doing it in the future. That's how that case will end up in court. And we just haven't seen it yet.

Isaac Saul (28:57)

Yeah. Wow. That and God, then you get into the whole injunction space which has been.

Sarah Isker (29:03)

Favored and yeah, it's hard.

Isaac Saul (29:12)

We'll be right back after this quick break.

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Isaac Saul (31:10)

All right, well, we got a few minutes left with you to kind of close this out. I wanted to get a quick temp check on one last thing, which is obviously I've been writing about the Trump administration a ton as you have been covering it, a ton in the Dispatch and on advisory opinions. And I think one of the things I hear most from my audience, and I'm assuming something you get probed about a lot from your audience, is is Trump disobeying the courts? To what degree? Is he sort of like the fascist authoritarian leader we've all feared? Or is the administration still generally doing what they're told? And for a long time I've been saying something that from listening to your show, I think you guys have been saying as well, which is mostly they're just doing what the court says. There have been a few instances where maybe they didn't do exactly what they said and they tried to get away with it, but then they got the slap on the wrist and they said, okay, our bad, and kind of came back to the table in good faith. I think the initial deportations with Venezuelans going to Seekot is a good example. But I saw this headline about this Minnesota judge claiming that ICE has violated hundreds of court orders more than the federal government, all federal government agencies combined typically do in a year. They have in the last month in Minnesota. Seems like these allegations that the administration is ignoring court orders are coming up more and more. So I wanted to retake your temperature here and just kind of see what your feeling is, what your sense is, how you're talking about the administration right now on this question of whether they're still obeying the court orders that are coming down.

Sarah Isker (32:50)

Yeah. So not all court orders are created equal when it comes to orders from the Supreme Court. The administration has not defied the Supreme Court. And they have promised that they would not defy, defy the Supreme Court for substantive orders at the district court or the circuit court levels. It's not defying it, for instance, to seek an appeal or to seek a stay. And oftentimes you have time before an order would go into effect to then do that. And so on those substantive ones, you kind of gotta get into the weeds. And I think a lot of people jumped the gun to say that they were defying court orders when in fact, for instance, the Supreme Court issued a stay to them or something like that. But let's talk specifically about Minnesota and what that judge is talking about, which is a little bit of a different issue that cuts both ways. That is a resource issue. So these are things like, you know, before 3:00 clock today, I expect a lawyer from the Department of Justice to show up in my chambers and explain whether this person is currently being detained. And that lawyer does not show up that is defying a court order. There's no question you can hold a lawyer in contempt for that. You can do all sorts of bad stuff to them. But I'm not sure I put it in the same bucket as government, don't do that. And they're like, yolo, we're gonna do it anyway. And you had a lawyer show up in a Minnesota courtroom this week and say, you, Honor, I wish you would hold me in contempt because then I would be able to actually get some sleep.

Isaac Saul (34:21)

I saw that.

Sarah Isker (34:22)

I'm working night and day. When we are overburdened, it's pulling teeth to get the administration to give me the justifications. I need to tell you what the justifications are. And all of that is really turning around who they have detained, what's the reason that they have this person detained and telling that to the court. So it does look like they are defying court orders to the extent that they could be held in contempt of court for failing to do that. But it also looks like that's definitely in the resource bucket. They don't, they're, they're, they've bitten off more than they can chew. They went and detained a bunch of people and they don't have the lawyers to defend that in court. That in no way makes that okay. But I, I do wanna distinguish it from the substantive. You specifically said, I cannot take someone to seekot in El Salvador, and I took them there anyway. Different.

Isaac Saul (35:13)

Yeah, I appreciate that distinction. And for those of you who feel like your job sucks, just remember you didn't have to beg a, to hold you in contempt so you could sleep.

Sarah Isker (35:22)

Please put me in jail.

Isaac Saul (35:23)

Yeah, please put me in jail so I can nap. Is that's when you know you're having a bad day at work.

Sarah Isker (35:29)

She was relieved from her duties.

Isaac Saul (35:30)

Yeah.

Sarah Isker (35:31)

By the Department of Justice.

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Isaac Saul (35:33)

Sarah Isker, thanks for the time. You've got a new book out. Before you go Last Branch Standing, tell our audience about the book and why they should obviously go buy it immediately.

Sarah Isker (35:43)

So it's on pre order right now. It's called Last Branch Branch Standing. It's an explainer about the court. I've got mini bios of each Justice. We're going to dive into the history, both the, like, long, long ago history of the first Chief justice and how we got here, the Warren Court to the end of the filibuster and the confirmation wars. But my favorite nugget, I think, is that I put all the briefs from last term into two different AIs and it predicted that 42% of the cases would be decided 6, 3 along ideological lines and that 12% of the cases would be decided unanimously. It's actually the opposite. 42% of the cases were decided unanimously and 15% of the cases were decided either 6, 3 or 5, 4. I have to clump those together to even get close to the 12% along ideological lines. And the truth is, you know, these large language models are reflecting us back to ourselves. It shows how badly we are at predicting the Court because everyone just sort of thinks of it like Congress, but only with nine people. And so I tried to provide ways to better predict how the Court's gonna come out. My favorite stat, I think, is that last term, 15% of the cases were decided 6, 3 or 5, 4 with the liberal justices in dissent. And 15% of the cases, the exact same number, were decided 5, 4, 6, 3 with only conservatives in dissent. And so actually splitting cross ideologically the other way. So the Court is just not quite what you're told that it is by either side's media. Frankly, it's far more interesting. And these are nine weirdo people that have their own quirks and their own ways that they like to think about the law. So if you actually want to sort of understand the court, last Branch Standing, I try to break it down for you.

Isaac Saul (37:29)

I love it. Sarah Isker, she's the co host of Advisory Opinions, a podcast covering all things Court, I think. I mean, I go to anytime there's a big ruling. I love your work. Thanks for coming back to the show. Really appreciate the time.

Sarah Isker (37:42)

Thank you.

Isaac Saul (37:43)

Our Executive editor and founder is me, Isaac Saul, and our Executive producer is John Lowell. Today's episode was edited and engineered by Dewey Thomas. Our editorial staff is led by Managing Editor Ari Weitzman with Senior Editor Will K. Back and Associate Editors Audrey Moorhead, Lindsey Panute and Bailey Saul. Music the music for the podcast was produced by Diet75. To learn more about Tangle and to sign up for a membership, please visit our website@retangle.com.

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