David French: The Birthright Citizenship Ruling Should've Been 9-0

Summary

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Episode Overview

Episode Title: David French: The Birthright Citizenship Ruling Should’ve Been 9-0
Host: Tim Miller
Guest: David French (Opinion columnist, New York Times; co-host of "Advisory Opinions"; former JAG officer)
Date: June 30, 2026

This episode focuses on the Supreme Court’s landmark decision upholding birthright citizenship, the recent TPS (Temporary Protected Status) ruling, and broader reflections on immigration law, constitutional interpretation, and the handling of racism in legal contexts. The conversation unfolds in real time as details about the Supreme Court’s decisions break, featuring legal analysis, reactions, and personal perspectives from Tim Miller and David French.

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Key Discussion Points & Insights

1. The Supreme Court’s Birthright Citizenship Ruling (00:31–03:53)

• Headline News: The Supreme Court struck down Trump's executive order seeking to end birthright citizenship, with a 6–3 decision.
  • "Birthright citizenship is alive and well in the country. It was a six to three decision." — Tim Miller (01:03)
• Breakdown of the Majority/Dissent:
  • Five justices clearly affirmed that birthright citizenship is anchored in the Constitution (14th Amendment).
  • Kavanaugh concurred in part, dissenting in part, emphasizing statutory grounds (Congress can change the law).
  • Gorsuch joined the dissent, making the 6–3 margin surprising to both Miller and French.
    • “I am surprised by the three...I am a little surprised that Gorsuch joined in this.” — David French (01:26)
• French’s Take:
  • "Thank the Lord this is over. What a ridiculous diversion to try to change, you know, centuries of American law and precedent because of your malice against immigrants." — David French (01:26)
  • French expresses relief and notes the significance ("This debate is settled for now and thank the Lord." — 03:25).
• Kavanaugh’s Position:
  • "He basically said that the law Congress passed in the 1950s is the reason why birthright citizenship is still allowed. And the Congress could overturn that law if they wanted to. So it wasn't on constitutional grounds." — Tim Miller (02:12)

Memorable Quotes

• "It's not that great that the president of the United States wanted to fundamentally change the nature of American citizenship to make it more exclusive on America 250." — Tim Miller (03:44)
• "But the fact that he failed, in some ways, it's poignant, honestly." — David French (03:53)

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2. Temporary Protected Status (TPS) Supreme Court Ruling (04:04–08:56)

• Case Overview:
  • The Court recently upheld the government's ability to revoke TPS for immigrants, sparking outrage from both hosts over the policy’s cruelty.
  • Discussion centers on separating legal analysis from policy emotions.
    • "On the policy itself, I'm just so outraged by it. It's so tragic, it's insane." — David French (04:14)
• Legal Technicalities:
  • The law gives enormous discretion to the president, and judicial review is expressly forbidden for revocations.
    • "The actual law here is congressional malpractice. That's at 11 on a scale of 1 to 10. Because it's just taking congressional prerogatives and authority and handing it over to the president and then even doing something worse than that, Tim, writing into the law, the judges cannot interfere." — David French (05:20)
• Racial Motivation and Constitutional Review:
  • French and Miller discuss whether the Trump administration's pattern of ending TPS for majority-minority countries, paired with racist rhetoric, constitutes a constitutional violation.
  • Court reasoned there was no evidence Trump targeted TPS for only non-white countries, as all pending designations had been from majority-minority countries, with Ukraine (a majority-white country) not yet come up.
    • "The next question is, is there a majority white country that has a TPS designation? Yes, Ukraine. But that hasn’t come up yet." — David French (08:39)
  • French is frustrated with how the Court sometimes treats overt racism: “I think they’re being blatantly racist. I don’t think that requires trying to interpret dog whistles. It just requires us to listen to bullhorns.” (05:20)

Notable Quote

• "This. The administration is being unspeakably cruel here. Unspeakably cruel, Vicious. I think they're being blatantly racist. I don't think that requires trying to interpret dog whistles. It just requires us to listen to bullhorns. I mean that." — David French (05:20)

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3. Inconsistencies in the Court’s Approach to Racism (09:13–11:37)

• Comparing Recent Supreme Court Cases:
  • French notes a disconnect in how the Court treated racism in a Hawaii gun control case versus the TPS case.
    • In the Hawaii gun case, the Court invalidated a law justified by the state by citing an 1865 Louisiana law enforced against Black citizens—the majority condemned using such racially tainted precedent.
    • In the TPS case, supposedly neutral application of a policy with racist rhetoric was not found unconstitutional, as the law itself was neutral.
  • "So there you had a neutral law with a racist application. You know, so you're not. You got to kind of figure out how are you, how are you dealing with overt racism from public officials? And when does overt racism for public officials trigger that enhanced...constitutional scrutiny?" — Unidentified Guest (11:33)

Memorable Moment

• “Shame on you, Hawaii. These were the black codes. These were the laws that were pass and then enforced against black citizens.” — Unidentified Guest, quoting the Supreme Court majority (10:16)

• French teases a more general debate about this inconsistency ("This is going to take us to the Calvin Ball debate that I want to have at the end, once we go through all of these rulings." — 11:37), hinting at evolving, flexible logic depending on the case.

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Notable Quotes with Timestamps

• On the Birthright Citizenship Ruling:
  • “Thank the Lord this is over. What a ridiculous diversion to try to change, you know, centuries of American law and precedent because of your malice against immigrants. I’m glad the Supreme Court ended this thing.” — David French (01:26)
  • “Birthright citizenship is alive and well in the country. It was a six to three decision.” — Tim Miller (01:03)
  • “I am surprised by the three. I wouldn’t have been surprised if it was 72 after oral argument. I am a little surprised that Gorsuch joined in this.” — David French (01:26)
• On Policy vs. Law (TPS):
  • “On the policy itself, I’m just so outraged by it. It’s so tragic, it’s insane.” — David French (04:14)
  • “The actual law here is congressional malpractice. That’s at 11 on a scale of 1 to 10.” — David French (05:20)
  • "I think they're being blatantly racist. I don't think that requires trying to interpret dog whistles. It just requires us to listen to bullhorns." — David French (05:20)
• On Judicial Inconsistency and Race:
  • “So even though the law said on its face that nobody could bring a weapon onto private property...the reality was this was aimed at black citizens. And so the majority of the Supreme Court said, don’t look at these, don’t look at these because they are discriminatory. But then...the TPS case...they said here, well, the neutral application is what matters, not the racist statements.” — Unidentified Guest (10:16–11:32)

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Important Segments & Timestamps

• Setting up the Birthright Citizenship Ruling: 00:31–01:26
• Breakdown & Reaction to Decision: 01:26–03:25
• TPS Ruling Introduction & Emotional Take: 04:07–05:20
• Legal Mechanics & Policy Critique on TPS: 05:20–08:56
• Supreme Court’s Treatment of Racism Across Cases: 09:13–11:37

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Tone & Style

The discussion is sharp, urgent, and at times exasperated—reflecting both the exhaustion with legal battles over immigration and the frustration with inconsistent legal reasoning around issues of race and constitutional protection. French and Miller blend legal analysis with plainspoken, occasionally gallows humor (“I'm just so outraged by it. It's so tragic, it's insane.”), aiming to engage both policy wonks and everyday listeners.

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Summary Takeaways

• Birthright Citizenship remains firmly intact, with the Supreme Court’s 6–3 rebuke of Trump’s order; yet the closeness of the vote was more surprising than expected for such a foundational principle.
• TPS decision highlights: the cruelty and racial overtones of policy, the enormous unchecked discretion given to presidents by Congress, and the legal hurdles immigrants now face.
• The Court’s approach to racism is inconsistent, condemning race-infused precedents in one context (gun rights) while downplaying overt racist rhetoric in another (immigration).
• Both hosts express a mix of relief, ongoing frustration, and a sense of urgency over the state of American law and politics.

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For a deep dive into the reasoning behind these landmark rulings and their broader context, this episode provides vivid, real-time legal commentary and heartfelt advocacy for vulnerable communities.

Transcript

[David French]

Foreign.

[Tim Miller]

Welcome to the Bulwark Podcast. I'm your host, Tim Miller. Delighted to welcome back to the show. Opinion columnist for the failing New York Times. He's also co host of legal podcast Advisory Opinion, Advisory Opinions. He was a JAG officer. There are a lot of advisory. There are a lot of opinions today. And so we've got him on the podcast.

[David French]

It's David French.

[Unidentified Guest]

How you doing, Tim? It's great to see you. Do we have anything to talk about today? Anything interesting?

[Tim Miller]

We have a few things. We have a few things, like about two minutes before I got down, I got a blaring headline in the blurg, slack Samuel Alito resigns. And I was preparing some Martha Annalito jokes. She had flipped the flag upside down at her home to mark the moment, but apparently NPR just kind of fucked up. So that's good. So now we just have to go

[David French]

through the rulings instead.

[Unidentified Guest]

Yeah, I had, all I saw was no resignation. I did not know that anything else

[Tim Miller]

went out like that somebody had popped something off. It happens. You get an itchy trigger finger on the publishing button. So we'll keep an eye on it

[David French]

as the show continues.

[Tim Miller]

But the news of the morning, the biggest news of the morning is that birthright citizenship is alive and well in the country. It was a six to three decision. They struck down Trump's EO. Six three was pretty notable to me. The three number as opposed to zero or two. Gorsuch was the third dissent.

[David French]

But I was wondering what your takeaways are.

[Unidentified Guest]

First topline takeaway is thank the Lord this is over. What a, what a ridiculous diversion to try to change, you know, centuries of American law and precedent because of your malice against immigrants. I'm glad the Supreme Court ended this thing. I'm glad that's over. I am surprised by the three. I wouldn't have been surprised if it was 72 after oral argument. I am a little surprised that Gorsuch joined in this. So I'm surprised by how narrow the margin was. It was more of a 5, 1 3. Kavanaugh was concurring in part and descending in part.

[Tim Miller]

But on Kavanaugh,

[David French]

this is all coming in quick, but it seems like he

[Tim Miller]

basically said that the law Congress passed

[David French]

in the 1950s is the reason why birthright citizenship is still allowed. And the Congress could overturn that law if they wanted to. So it wasn't on constitutional grounds.

[Tim Miller]

Act.

[Unidentified Guest]

Right. You know, so the 14th amendment says in its text that it empowers Congress to pass laws to enfor, to, to facilitate the enforcement and so yeah, the bottom line is Donald Trump 63. Donald Trump could not do it. The you had five very solid votes for the idea that, look, this is just the Constitution. The Constitution says. And then you have Kavanaugh, the statute says. And so you have. And again, all of this is sort of like we're real time digesting. So there, there, there will be, there might be something at the end of this, Tim, where somebody says they NPR it, they said something that they shouldn't have said about interpreting. But we're trying to, you know, we're in real time trying to figure this out. But the bottom line is it's gone. It's dead. The Trump EO is gone. It's dead. Birthright citizenship is still the law of the land. I don't see any reasonable prospect for it not being the law of the land anytime, you know, in the, in the near to medium term future. This debate is settled for now and thank the Lord.

[Tim Miller]

All right, well, good. In time for America 252.

[Unidentified Guest]

You know, just in time.

[Tim Miller]

Our little American flags.

[Unidentified Guest]

And isn't it great we're not fundamentally changing American citizenship to be More exclusive on America 250?

[Tim Miller]

It is great. It's not that great that the president of the United States wanted to fundamentally change the nature of American citizens citizenship to make it more exclusive on America 250.

[David French]

But the fact that he failed, in some ways, it's poignant, honestly.

[Unidentified Guest]

We're in a half full glass, half full podcast.

[Tim Miller]

All right, well, we'll see how that goes. This is not a new one. We have a couple other cases from

[David French]

yesterday and today I want to get

[Tim Miller]

to, but I just want to throw

[David French]

this in the immigration bucket, which was the TPS ruling last week, which I've been waiting to get your take on.

[Tim Miller]

You know, always when analyzing Supreme Court

[David French]

cases, you know, there's the separate. You have to kind of separate inside yourself. Okay, what are your, what are the feelings about the actual law and actual ruling and feelings about the pop policy itself? Because sometimes those are in conflict on the policy itself. I'm just so outraged by it. It's so tragic, it's insane. What are we going to do? The idea that somebody that came to this country under temporary protective status has been working, had kids, here goes to church, is a good member of their community, and now, who knows, they can be worried that federal agents are going to knock on their door and send them back to a failed state. It's crazy. Just on a practical level, on the

[Tim Miller]

legal side of it, and I Know,

[David French]

you and I agree on that.

[Tim Miller]

On the legal side of, you know, this is more your expertise. But I was seeing some interesting analysis

[David French]

of this last week about basically the

[Tim Miller]

court saying that, like, this is outside

[David French]

of their purview and so, like, taking that to its logical conclusion, like a Democratic president could do any. I couldn't. Could wave their wand and make anybody protected immediately, which would have been news to Barack Obama, who tried to pass several times, but I don't know. What do you think?

[Unidentified Guest]

Well, this is one of those cases, Tim, that I'm 100% with you, that this. This. The administration is being unspeakably cruel here. Unspeakably cruel, Vicious. I think they're being blatantly racist. I don't think that requires trying to interpret dog whistles. It just requires us to listen to bullhorns. I mean that. So at the same time, the law here as written is a terrible, dreadful law because what it does is it gives this. It. It gives. Gave an enormous amount of discretion to the. Then had another element in there that said that revocation of TPS status is not reviewable by the courts. So in other words, the. The actual law here is congressional malpractice. That's at 11 on a scale of 1 to 10. Because it's just taking congressional prerogatives and authority and handing it over to the president and then even doing something worse than that, Tim, writing into the law, the judges cannot interfere. So this created a real problem if you're wanting to challenge the revocation of TPS status. And so what that meant was the argument became, okay, well, we can't review the actual decision, but we are asking the court to review the process that led to the decision. Now, the way I talked about this case right after, that's a hard argument to make. It's a very. I'm not saying it's like a frivolous argument. It's not a silly argument, but it's a hard argument to make. The odds are against you. If you're asking a court to review something when a statute says it's not reviewable, that that puts you behind the eight ball. And so there was a lot of anger at the court over that that I think was misplaced, which was, why aren't you talking to Congress about passing these laws that give so much discretion to a president? At the same time, there was another element there which was, was this a violation of the Constitution? In other words, did all of the racist statements mean that this is something that was beyond that the Constitution of course sits over a statute. A statute is subordinate to the Constitution. And so when they targeted the Haitians, for example, racially, did that mean that they committed a constitutional violation that the court could remedy? That would mean that the statute, that statutory discretion, didn't come into play. Okay, that was a more complicated second question, and this is one where I'm, I've got problems with the court's reasoning on that part of it, because here's what they said. They said, look, there were a lot of racist statements that Trump made, but so far, the Trump administration has cut off every single TPS designation that has come up for review, regardless of what country it's from. So he's not just targeting people in the race. He's getting rid of all TPS designations as they come up. Now, the counter to that is, well, every TPS designation that's come up has so far been from a majority minority country. In other words, you know, and so. And so then the. The next question is, has. Is there a majority white country that has a TPS designation? Yes, Ukraine. But that hasn't come up yet. And so the court was trying to. Was essentially saying, well, look, yes, there was this vile rhetoric, but they're just canceling TPS to everybody, which they have the discretion to do.

[Tim Miller]

And then there was the Alito had

[David French]

the Sopranos defense, you know, which is that everybody gets vile rhetoric against them sometimes. I mean, the Italians, the way they treat Columbus Day. Right, that's really unfair.

[Unidentified Guest]

And so, but also at the same time, and this is just stop me for just getting too much in the weeds here.

[Tim Miller]

No, please.

[Unidentified Guest]

There was this real. I felt there was an inconsistency between the way the Supreme Court talked about race in the black codes in the Hawaii gun control case and the way they talked about race in the TPS case. And here was the difference.

[David French]

Explain. I haven't covered the Hawaii case, so just.

[Unidentified Guest]

Yeah, my goodness. We're in it now, Tim. We're in it now. So the Hawaii case was this gun was a case involving a gun regulation that said in Hawaii that unless a private property owner, like a store or whatever, clearly indicates that you can bring a gun inside by default, even if you have a concealed carry permit, you cannot carry the gun in. So private property by default in Hawaii is barred for guns, but a owner can say yes and allow. And the Supreme Court struck that down as being overly restrictive of gun rights. But when Hawaii was trying to justify this regulation, it. It said it was similar to a law in Louisiana. Your Louisiana, Tim, in 1865.

[David French]

Oh, great.

[Unidentified Guest]

That I thought it was a good model. Yeah. 1865, red flag flying, right? And that, that on it, at least purportedly on its face, appeared to be a race neutral ban on people bringing firearms onto private property. And they said, see, this goes back to 1865 and the administrative. And the majority was like, shame on you, Hawaii. These were the black codes. These were the laws that were pass and then enforced against black citizens. So even though the law said on its face that nobody could bring a weapon onto private property without the property owner's permission, the reality was this was aimed at black citizens. And so the majority of the Supreme Court said, don't look at these, don't look at these because they are discriminatory. But then you flip around and you go to the TPS case, and here you had very racist statements against the backdrop of a sort of presumably neutral application. And they said here, well, the neutral application is what matters, not the racist statements. And so there you had a neutral law with a racist application. You know, so you're not. You got to kind of figure out how are you, how are you dealing with overt racism from public officials? And when does overt racism for public officials trigger that enhanced continuity constitutional scrutiny?

[David French]

This is going to take us to the Calvin Ball debate that I want to have at the end, once we go through all of these rulings.