Norway-Sweden Worshippers

[00:00:21] [Will Baude] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

[00:00:26] [Dan Epps] And I'm Dan Epps.

[00:00:28] [Will] 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?

[00:00:33] [Dan] No, I should. I should. I listen to a lot of EDM when I'm trying to get work done because I figured they find it—

[00:00:42] [Will] It's hard to concentrate?

[00:00:43] [Dan] 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 just play our theme music over and over.

[00:00:56] [Will] Well, yeah, so sometimes I listen to our podcast as I'm getting ready to record our podcast, like to the last episode.

[00:01:01] [Dan] Does it help?

[00:01:02] [Will] Yeah, it gets me in the mood. Maybe we need a file of Divided Argument hype music.

[00:01:16] [Dan] Hold on for one second. How about that one?

[00:01:25] [Will] Sounds nice.

[00:01:26] [Dan] Does that—

[00:01:26] [Will] That's nice.

[00:01:28] [Dan] We've got 3 of these. We used to use these a little bit more. Maybe it's time to bring them back.

[00:01:33] [Will] We're just more seamless. We don't have as many transitions.

[00:01:37] [Dan] Not sure about that.

[00:01:37] [Will] And we do the live show. We usually play the theme song beforehand, and that's always nice.

[00:01:42] [Dan] I had Claude help build a bunch of— a show rider for our live shows called Cool.

[00:01:48] [Will] Does it have demands about our snacks and stuff?

[00:01:50] [Dan] 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, but it's fine. It still was successful.

[00:02:04] [Will] You can take a rider, but can you fulfill a rider?

[00:02:08] [Dan] Yeah. But you know the reason, right? The famous reason for the brown M&Ms. Right.

[00:02:16] [Will] Is it a test of whether people actually were reading the rider?

[00:02:18] [Dan] Yeah, exactly. That was the point. It was not because Van Halen really cared that much about the M&Ms without the— I guess it was without the brown M&Ms, but it was 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.

[00:02:40] [Will] Right. Yeah. We don't do a lot of acrobatics or special events back at our live shows. Yeah.

[00:02:48] [Dan] I'm always looking for ways to step things up.

[00:02:52] [Will] Okay. Well, I'm open to it.

[00:03:01] [Dan] That's the next step for me. 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.

[00:03:18] [Will] That's great. That's great. I've always tried to battle my natural Luddite tendencies. We didn't have any email. We were teenagers without an online life. But so we practiced. I tried to get into blogging before school.

[00:03:40] [Dan] When I was in high school, we had a very early email and bulletin board system. Kind of fun. I had a GeoCities website early on. I don't know if you had one of those. You were an early blogger, right? I mean, I don't know what counts as an early blogger, but you were like an early 2000s blogger.

[00:03:57] [Will] Yeah, '01, '02. It was back when Eugene Volokh and Jacob Levy were kind of like 2 of the main bloggers in the law political theory space. And I spent a summer reading them and then started posting.

[00:04:10] [Dan] I mean, that's a little tech savvy, right? To be an early blogger.

[00:04:14] [Will] A little. I mean, 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.

[00:04:23] [Dan] Are the archives of your old blog still up?

[00:04:26] [Will] Only on the Wayback Machine.

[00:04:28] [Dan] Oh, that's too bad.

[00:04:30] [Will] 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 5 figures.

[00:04:42] [Dan] Are you serious?

[00:04:44] [Will] Yeah.

[00:04:45] [Dan] They've probably let it go since then.

[00:04:47] [Will] I mean, even at the time, it was then just like random SEO advertising junk, which is still there.

[00:04:55] [Dan] Well, maybe someday you'll get it back.

[00:04:58] [Will] I have a new blog then.

[00:05:00] [Dan] True. Although we call it a blog, although I feel like blogs as such are kind of passé.

[00:05:07] [Will] Blogs are back.

[00:05:07] [Dan] It's a newsletter, right? People like newsletters.

[00:05:10] [Will] It's just a blog that emails you if we've got a new post.

[00:05:12] [Dan] Yeah. But I mean, it solves the big blog problem, which was aggregation, right? I mean, 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.

[00:05:25] [Will] Right.

[00:05:26] [Dan] RSS.

[00:05:27] [Will] The problem was just that Google Reader died. Google Reader was amazing.

[00:05:30] [Dan] Yeah.

[00:05:31] [Will] And then once Google Reader died, yeah.

[00:05:34] [Dan] And then a lot of blogs like didn't make it available. You couldn't— they didn't have good RSS feeds. So, but Substack works pretty well. Yeah. Hopefully folks are subscribed. And 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.

[00:05:58] [Will] I like the way you say that. Here's a rare example of Will doing a good job with something blog-related or podcast-related.

[00:06:04] [Dan] That's great.

[00:06:12] [Will] 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 are not in the inbox or things like that.

[00:06:26] [Dan] So check it out. Okay. That's good to know. I should comment and get your responses there. Okay. So we are recording this Thursday, July 2nd.

[00:06:36] [Will] Why are you giving that away, Dan?

[00:06:39] [Dan] 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.

[00:06:50] [Will] Okay.

[00:06:50] [Dan] Because we have released a ton of episodes. I think we've released 4 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.

[00:07:19] [Will] That's right. Yeah, people have been complaining that the flow of episodes is too high. They're having trouble keeping up.

[00:07:27] [Dan] Just put them in your hopper and listen to them over the coming weeks. But so today we're going to talk about 2 immigration decisions that came out, I guess, was it a week ago today at this point? Thursday of last week?

[00:07:46] [Will] Yes.

[00:07:46] [Dan] Yeah, June 25th.

[00:07:47] [Will] Yes.

[00:07:49] [Dan] Mullin versus Al Otro Lado and Mullin 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?

[00:08:11] [Will] Steel Co. Because it's got an interesting, fun, nerdy fed courts issue.

[00:08:15] [Dan] You say interesting and fun, I say maddening and insane, but yes. I mean, especially Doe, which we'll talk about, is important.

[00:08:38] [Will] 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.

[00:08:57] [Dan] Yeah.

[00:08:57] [Will] 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.

[00:09:15] [Dan] It was on shakier ground. Yeah.

[00:09:17] [Will] Yeah. 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.

[00:09:27] [Dan] Yeah, that seems reasonable. Yeah. And you could imagine maybe the Court splitting the difference. But no, these are both going to be 6-3 conservative-liberal divide.

[00:09:40] [Will] 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 a look at the Roberts Court standing up to the Trump administration's xenophobia. And I think a lot of people would say, well, it is important to read that decision alongside the other immigration decisions to get the full picture of the Court's reaction to executive action in this area.

[00:10:05] [Dan] Yeah, that seems right. Okay, well, let's do it. I think you wanted to talk about Mullin v. Doe first.

[00:10:13] [Will] Yes.

[00:10:14] [Dan] 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 Al Otro Lado.

[00:10:24] [Will] Yes. Or at least I think this one also has more law to talk about.

[00:10:28] [Dan] Okay. Yeah, that is maybe our specialty.

[00:10:33] [Will] We try.

[00:10:34] [Dan] We don't know so much about other stuff.

[00:10:37] [Will] Also, this one has some weirdly messed up line spacing on the first page.

[00:10:42] [Dan] What is going on?

[00:10:44] [Will] I don't know. And I thought they might've fixed this by the time we recorded, but I just opened this up on the Supreme Court's website today. So any listener, we'll see if it's still true, but you go to page 1 of the Court's opinion and then you go to page 2. And you can just see the different white space between the lines on 1 versus 2.

[00:11:03] [Dan] 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?

[00:11:10] [Will] Maybe. I mean, on the first page, you could just have a little less—

[00:11:14] [Dan] I don't know.

[00:11:16] [Will] 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. Actually, if you look at the first page, the docket 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.

[00:11:38] [Dan] Okay. Well, so probably not the most troubling thing about this decision, at least for most of our listeners.

[00:11:46] [Will] Actually, Dan, yeah, look.

[00:11:48] [Dan] You're still hung up on this.

[00:11:49] [Will] I'm just saying, if you look at— wait, also— oh, I see. Okay, sorry. Yeah, I don't know. There's something going on here, and they need to work on it.

[00:12:04] [Dan] Okay.

[00:12:04] [Will] Aside from the issues of font and formatting, there's some other interesting legal things going on here.

[00:12:11] [Dan] Yeah.

[00:12:11] [Will] So Mullin v. Doe, which is consolidated with a D.C. Circuit case that's actually the more significant of the 2, which is maybe called Trump versus Miot— Miot, I'm not sure— are 2 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 kind of— 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.

[00:13:05] [Dan] And in some cases, there's a process, right? 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?

[00:13:19] [Will] 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.

[00:13:43] [Dan] Yeah.

[00:13:43] [Will] 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 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 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 protected status designations that have come up for renewal so far during their—

[00:14:46] [Dan] So they're not going retroactively and sort of trying to cancel ones that haven't come up for renewal, I guess?

[00:14:53] [Will] 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 partial— most win for the government, but partial loss. But they're not categorically going through early.

[00:15:14] [Dan] Yeah.

[00:15:15] [Will] And the statute that creates this status, which is a sort of 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. Yeah.

[00:15:31] [Dan] So looking at page 4 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 some possible conditions: ongoing armed conflict, national disaster, extraordinary and temporary conditions that prevent nationals from returning, et cetera. Right.

[00:16:04] [Will] But then on the back end, the statute says it's terminated once the Secretary determines that the country no longer meets those conditions. He's supposed to review them at least every 18 months. And during this review, the Secretary must consult with appropriate agencies of the government and determine—

[00:16:19] [Dan] Which is the language that is on the front end too. Right.

[00:16:22] [Will] And 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 described as a must.

[00:16:34] [Dan] Must consult.

[00:16:36] [Will] Although the must— and must, I think, must terminate if they decide that it's not met.

[00:16:42] [Dan] Anyway. It's must determine, right?

[00:16:45] [Will] 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 actually ask the right questions or betray any interest in the answer to the question and so on? Less clear.

[00:17:13] [Dan] Yeah.

[00:17:13] [Will] 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.

[00:17:25] [Dan] Okay. What does that mean?

[00:17:26] [Will] Well, that's the first question. So one of the challenges essentially is, look, they were wrong to terminate our temporary protected 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, right? 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 foreordained 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.

[00:18:19] [Dan] Yeah. And can we just linger on this language? It's a little confusing, I guess, because they haven't redone the US Code. So the US 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.

[00:18:42] [Will] There is no judicial review.

[00:18:43] [Dan] There is no judicial review.

[00:18:45] [Will] It's a little like the 13th Amendment. Slavery does not exist. It's not saying it's forbidden exactly. It's just like—

[00:18:50] [Dan] Yeah. It's not a thing.

[00:18:53] [Will] Pay no attention to the judicial review behind the curtain. There is no judicial review.

[00:18:59] [Dan] Okay. All right.

[00:19:07] [Will] 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.

[00:19:24] [Dan] 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.

[00:19:34] [Will] Right. But again, I think everybody agrees it has to apply to at least substantive determinations. Otherwise, what else would it apply to?

[00:19:39] [Dan] At least the kind of the bottom-line decision, right?

[00:19:42] [Will] Right. Right. I mean, you could have a very broad view that some fed court scholars, maybe in the mid-20th century, might've had, that the provision is unconstitutional, even as applied to statutory provisions.

[00:19:52] [Dan] Yeah. That seems like it should be wrong.

[00:19:54] [Will] 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 III prerogative of courts to decide—

[00:20:18] [Dan] All legal issues all the time?

[00:20:20] [Will] Yeah. Well, to say what the law is, as Marbury says.

[00:20:23] [Dan] Yeah. In any context? I mean, yeah.

[00:20:25] [Will] That can't be right. 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.

[00:20:35] [Dan] Yeah.

[00:20:36] [Will] 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.

[00:21:10] [Dan] Okay.

[00:21:11] [Will] What if we discovered that a document issued under Secretary Noem's name was actually not even a determination of the Secretary? Could we have judicial review to see whether that was a— maybe then say, well, that's not even a determination of the Secretary, so it falls outside. I'm not sure.

[00:21:37] [Dan] Okay. And so are we still just talking about the statutory stuff, or are we going to bracket constitutional stuff?

[00:21:45] [Will] Let's do constitutional in a minute.

[00:21:46] [Dan] Okay.

[00:21:46] [Will] The Court's answer to the 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, whether or not she asked the right questions or consulted the right people, except that this is a way of invalidating the termination.

[00:22:26] [Dan] Yeah, although, I mean, 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.

[00:22:39] [Will] 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. If you had a statute that says, no judicial review of any convictions under this 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.

[00:23:06] [Dan] 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 policy-laden determination.

[00:23:33] [Will] Yes.

[00:23:33] [Dan] But it doesn't exist to bar judicial review of the parts of the statute that are mandatory.

[00:23:42] [Will] 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.

[00:24:08] [Dan] 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 narrowly.

[00:24:21] [Will] Right. 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 judicial review, and then you just have to read that fairly.

[00:24:32] [Dan] Yeah.

[00:24:32] [Will] But yes, so if you wanted to, maybe you could read it otherwise. Yep. Yep. So unless you want to say more about this, then we can get to the next question, which has 2 questions in it, which is, what if the revocation of the designation was not just a violation of the consultation requirement, but a violation of the Constitution? What then?

[00:25:01] [Dan] Yeah. 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. Right. And that was the pre—

[00:25:43] [Will] TPS regime.

[00:25:44] [Dan] Yeah. Okay.

[00:25:45] [Will] 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 won preliminary relief below, on the theory that the revocation of Haiti's status was unconstitutionally racist.

[00:26:07] [Dan] As opposed to constitutionally racist? Yeah. Okay.

[00:26:12] [Will] 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, but, well, we'll see.

[00:26:20] [Dan] That's fair.

[00:26:21] [Will] Yeah.

[00:26:21] [Dan] All right.

[00:26:21] [Will] So here's where things get more confusing, because we still have this jurisdictional issue, right? 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?

[00:26:49] [Dan] Yeah.

[00:26:50] [Will] Or use some other magic words? Justice Scalia and Justice Thomas, I think, had previously written opinions taking a very strong anti-judicial review position on that issue. And so that's a big deal. And somehow the Court manages not to tell us the answer.

[00:27:07] [Dan] 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 6-justice majority, if they had to answer the question, would think it is okay? Or I guess 2 things, would think that this statute actually definitely precludes review of constitutional claims and also would think that that's okay.

[00:27:36] [Will] My guess is of the 6, 3 of them don't think this bars judicial review.

[00:27:51] [Dan] Kavanaugh, Barrett, Chief?

[00:27:54] [Will] Kavanaugh, Roberts, Gorsuch.

[00:27:57] [Dan] Okay.

[00:27:58] [Will] Maybe Barrett too. And I think so, because— 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 2 out of 3 of them not being sure whether its intent to do so was clear here.

[00:28:18] [Dan] Yeah. I see the Chief and Kavanaugh maybe being 2 of the most ones that are most concerned about the institutional power of the Court. Is that fair?

[00:28:33] [Will] I don't like these labels, but I see what you mean.

[00:28:36] [Dan] No, no, I'm not saying that they're going to decide cases based on election returns and 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.

[00:28:57] [Will] 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.

[00:29:05] [Dan] Concern level could be high, but one could think that the Court has a bigger or a narrower role in the constitutional order. And my instinct is that those 2 maybe think there's a bigger role.

[00:29:18] [Will] Right. But then that's what I mean is 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 disregard a ton more precedents than anybody else does. But still, I think on this question of— my guess would be that Chief Justice Roberts and Justice Kavanaugh would be disproportionately skeptical of jurisdiction stripping, specifically that cut at this.

[00:29:43] [Dan] Yeah.

[00:29:44] [Will] And in part, I mean, this has become 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.

[00:30:13] [Dan] Yeah.

[00:30:14] [Will] 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 jurisdictional supervision is very clear. It just says no judicial review. With respect to. That's clear. Whereas if you're less textualist, then you say, well, it's— I mean, is it really clear? You know, because there's always this classic question, like, if I say no vehicles in the park, does that clearly forbid ambulances? Which it does, like, unambiguously preclude ambulances. Or to say, well, I mean, they said no vehicles in the park, but they didn't say no ambulance vehicles.

[00:30:55] [Dan] Yeah.

[00:30:56] [Will] Yeah.

[00:30:56] [Dan] Okay.

[00:30:57] [Will] And then I could imagine Justice Gorsuch being— I named him just because I could imagine him being a, uh, 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'd present in this case or not. It would depend on like a bunch of due process stuff that we'd have to get into.

[00:31:15] [Dan] Yeah.

[00:31:16] [Will] But I can imagine that. So what's interesting is, so 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 plaintiffs, respondents, are unlikely to succeed on the merits. And they just go ahead to the equal protection ground where all 6 of them agree it should lose. This is not normal.

[00:31:41] [Dan] Yeah.

[00:31:42] [Will] The Court normally has a rule memorialized in a great Justice Scalia opinion, Steel Co. v. Citizens for a Better Environment, newly added to the most recent edition of Hart and Wechsler, by the way, that says you've always got to do jurisdiction first because jurisdiction goes to your power to decide the merits, just 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 out 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.

[00:32:32] [Dan] And you think that's right, it sounds like. The basic rule. I mean, it makes sense to me.

[00:32:47] [Will] Yeah, I think that has to be right. And there are cases against where even the technicalities would matter. Actually, your rights are a little different based on which reason you lose.

[00:33:07] [Dan] Yeah, that makes sense.

[00:33:09] [Will] And I also just think conceptually, it's right that jurisdiction is the power to decide the law. So if 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 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 there are things like, is there a cause of action? That was the question in Steel Co. that some people thought should go in the kind of quasi-jurisdiction bucket. But the Court says that's more of a merits 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.

[00:34:16] [Dan] So he loses Gorsuch and Barrett here.

[00:34:23] [Will] He loses Gorsuch and Barrett. There is— this principle does not apply to the interim docket.

[00:34:33] [Dan] Or it does not apply when the question on the interim docket is likelihood of success on the merits.

[00:34:41] [Will] Right. Well, so 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. 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 that 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 grounds.

[00:35:16] [Dan] Yeah.

[00:35:18] [Will] On the Divided Argument blog.

[00:35:23] [Dan] And to be clear, so then it's going to go on, he's going to go on and address the merits.

[00:35:28] [Will] Yep.

[00:35:29] [Dan] And Gorsuch and Barrett are going to be okay with that?

[00:35:32] [Will] Yes.

[00:35:33] [Dan] And so what were they thinking? What do you think they were thinking? Good.

[00:35:37] [Will] So, all right. So just to flag, the reason this is weird is it still is a form of going on to the merits. And so if the Court doesn't have jurisdiction to go on to the merits, a lot of the questions you have in Steel Co. seem like they'd still be present.

[00:35:51] [Dan] Yeah.

[00:35:52] [Will] 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 isn't a final judgment at all, although it's sort of a judgment. 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—

[00:36:36] [Dan] Yeah.

[00:36:37] [Will] Like merits precedents. 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 v. CASA. There was this cottage industry last year about what kind of precedent is Trump v. CASA? Because it's technically on the interim docket. So did the Court— is it now the case that nationwide injunctions are unlawful? Or is it just likely to be? Yeah. Is it just the case the lower courts should think that they're unlikely to be lawful? And so it's weird. Now, what's even weirder in some ways is 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 Steel Co. doesn't apply to the interim docket, but they still apparently think it doesn't because they go on to decide that.

[00:37:24] [Dan] Well, no, not necessarily. They could think that there's jurisdiction.

[00:37:29] [Will] 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 Steel Co. 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 Co. 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 Steel Co. 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 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 is not the same as Justice Alito's theory.

[00:38:30] [Dan] Yeah. So don't you think it would be better practice to say that?

[00:38:34] [Will] Well, good.

[00:38:35] [Dan] So, I mean, because if one of them was writing the majority opinion, they would've just ignored this issue.

[00:38:44] [Will] Well, then the rest—

[00:38:44] [Dan] I mean, 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 3B. Right.

[00:38:54] [Will] So 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 precedential effect. It's like 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.

[00:39:35] [Dan] That's kind of crazy, I guess.

[00:39:37] [Will] No. Or the other version of this that I've heard was a claim that if a jurisdictional problem arises late-breaking, 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.

[00:40:18] [Dan] It just seems like in general, that'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.

[00:40:29] [Will] Yes. But it is, I think, and it's also, 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 3 possible reasons for that, you're really not sure which ones they are. And then this is the, like, do you write on 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 3 theories and I'm not sure which one is right, doing that does— the choice whether to do that does shape the development of the law in ways that might be bad.

[00:41:10] [Dan] Yeah.

[00:41:10] [Will] So it might be better— they might well have decided, boy, this is all weird. All the explanations for what we're 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.

[00:41:21] [Dan] 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 3 months.

[00:41:30] [Will] Right.

[00:41:30] [Dan] So it wasn't kind of a midnight ruling where that would be a lot more justified.

[00:41:37] [Will] Right. No, I agree. I mean, this is why I think it's just— but law's hard. And there are lots of fed courts questions that I think about for 3 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.

[00:42:02] [Dan] Yeah.

[00:42:03] [Will] So no, I think this is— I guess what 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.

[00:42:17] [Dan] 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?

[00:42:40] [Will] Yeah. Or even, well, I think so. Or even 70-70, right? Because 0.7 times 0.7 is 0.49.

[00:42:45] [Dan] Yeah.

[00:42:46] [Will] 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 Paulsen and I were making the Section 3 argument. I heard people say, look, I think you have 5 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 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? 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 write a separate opinion, endorsing the multiplying approach would make major law. Yeah. Which is— I mean, so I'm sympathetic to how hard this problem is, although, you know, if a majority of the Supreme Court can't figure out how to think about jurisdiction, like, what hope do we have?

[00:43:58] [Dan] Okay. All right.

[00:43:59] [Will] That's part of why this case was fascinating and weird and troubling, frankly.

[00:44:04] [Dan] Yeah.

[00:44:04] [Will] Then we get to the merits, which are troubling in a different way. This is like— do you remember Trump versus Hawaii?

[00:44:10] [Dan] Yep.

[00:44:11] [Will] Okay.

[00:44:11] [Dan] All too well.

[00:44:12] [Will] 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.

[00:44:28] [Dan] And he specifically had said, we need a Muslim ban.

[00:44:30] [Will] Yes.

[00:44:31] [Dan] Right.

[00:44:31] [Will] And then after litigation and a couple rounds of OLC, 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 whitewash it a little bit. And eventually the Court, under a somewhat deferential standard of review, was like, okay, I guess we can live with that. It's not great, but we can live with it. I feel like this is a similar dynamic, but so many things from the innocent times of 2017 and 2018, I mean, these are statements not by a candidate, but by the president, which back in Trump versus 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.

[00:45:20] [Dan] Yeah. Just lots of horrible things about Haitians, which would be the smoking gun.

[00:45:34] [Will] Sure.

[00:45:35] [Dan] But lots of things about just why Haitians are bad and why they're doing terrible things.

[00:45:41] [Will] And false, or I think false claims about eating people's pets and all this stuff. And again, the procedural issues were barred by non-statutory judicial review, but they might still be lingering in the back of the constitutional concern. And the Court says it's fine. It's not unconstitutional. And it says so in a very— and people disagree on how to read this opinion by Justice Alito, but the Court is very ginger in describing what's going on.

[00:46:15] [Dan] Right.

[00:46:15] [Will] So it does not quote any of the statements by the president and Secretary Noem. It just says, the president's comments fall into 4 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 them as hellish places to live, and some statements malign Haitians who've come to the United States. I mean, that's true, but it really—

[00:46:43] [Dan] Yeah. It definitely sanitizes.

[00:46:46] [Will] Yes. So this is where people disagree. Some people are like, this sanitizes it. So the Court obviously is closing its eyes to the racism. I thought— tell me what you think— the sanitization is so awkward.

[00:47:00] [Dan] Yeah.

[00:47:00] [Will] I mean, that it makes obvious how uncomfortable the Court is with the statements. Yeah.

[00:47:04] [Dan] I mean, which I think is not great.

[00:47:06] [Will] Right. Now, obviously, they're not so uncomfortable with them as to believe that they render the actions unlawful. And then there's even a kind of a whole little speech about how Haitians are great.

[00:47:17] [Dan] Yeah.

[00:47:19] [Will] The majority, Justice 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 a 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 at the Battle of Savannah. Yeah.

[00:47:56] [Dan] 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, I mean, Western European countries don't have these problems that require TPS.

[00:48:20] [Will] Right.

[00:48:21] [Dan] 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.

[00:48:39] [Will] Right. So factually, they've terminated— the 2nd term administration has terminated every TPS designation up for review so far. 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. So 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's 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 it was a motivating factor. And then if it was a motivating factor, I think footnote 20-something of Arlington Heights says at that point, the burden shifts to the government to prove—

[00:49:51] [Dan] Right.

[00:49:52] [Will] That it would've done the same thing anyway. And so I think just doctrinally, the Court is now kind of blending together both steps of Arlington Heights. Their intuition seems to be they would've done the same thing anyway, so it's not really motivated by race.

[00:50:05] [Dan] Yeah.

[00:50:06] [Will] But at least under Arlington Heights, whether something is motivated by race is a different question from whether you would've 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've done the same thing anyway?

[00:50:26] [Dan] I mean, this is the whole problem of mixed motives, right? This comes up in employment discrimination.

[00:50:33] [Will] Yes. And even just conceptually, philosophically, suppose that I had 5 reasons for doing something, right? And I would've done it if any 3 of them had been true or any 4.

[00:50:42] [Dan] Yeah.

[00:50:43] [Will] On the one hand, when you single one out, you're like, did that motivate you? The answer is no. It's not even about for cause. It was totally immaterial. Were it 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.

[00:50:59] [Dan] Yeah. I mean, it seems like it's more best understood as kind of 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.

[00:51:16] [Will] Right. But again, even in the mix, I mean, 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 the upshot. Of course, the same thing can come up in the other direction under the new equal protection doctrine, like under Callais and SFFA, all these cases where now white people are going to assert mixed motives.

[00:51:50] [Dan] Yeah.

[00:51:50] [Will] 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 can they say, look, no, but still they were applying the— you wouldn't have gotten 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.

[00:52:18] [Dan] Okay. So more to say about the merits?

[00:52:25] [Will] Not from the majority.

[00:52:27] [Dan] Okay. More to say about the majority?

[00:52:31] [Will] Not for me.

[00:52:32] [Dan] Okay. And let's go on to the Thomas concurrence. So he's got 2 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 Steel Co. part of the opinion. So he also clearly believes that he's still allowed to address that.

[00:52:58] [Will] Yes, which is funny.

[00:53:00] [Dan] Okay. So that's one. And then 2, he thinks that there's 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.

[00:53:19] [Will] Right. And this is something he's written before.

[00:53:21] [Dan] Yeah. And it's not what precedent has said, right? Precedent since Bolling v. Sharpe has come up with a way around this where they say there is an equal protection component of the 5th Amendment due process clause.

[00:53:35] [Will] Yes.

[00:53:36] [Dan] Which he thinks is wrong. And again, textually, original understanding-wise, has a pretty good point.

[00:53:46] [Will] I once started to write an article that wiser people dissuaded me from writing called The Unthinkable Wrongness of Bolling v. Sharpe, that argued that Bolling v. Sharpe was the worst Supreme Court decision of all time. Obviously, that would be a bad look.

[00:54:00] [Dan] Yeah. The worst of all time seems a little bit over the top to me.

[00:54:05] [Will] Yeah, I agree. Also, I mean, so there is this funny irony though, which is that this becomes controversial again in the '90s when the Supreme Court 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've been okay with various kinds of affirmative action and federal civil rights laws and so on. But then in Adarand, the Court can say, well, look, in Bolling v. Sharpe, we've said it's unthinkable that the standard would be different for the federal and state government. So do the same. Now, because you could logically have the view, no, we're going to create a non-textual equal protection clause in one direction, not the other.

[00:54:48] [Dan] Yeah.

[00:54:49] [Will] But you can see how once you create it— and there is also a great article by Richard Primus called Bolling 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 v. Sharpe principle has never resulted in the invalidation of discrimination against Black people. It's been used in Adarand-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 v. Sharpe-type claim, the federal government has discriminated against African Americans, has never succeeded in the Supreme Court since Bolling v. Sharpe.

[00:55:26] [Dan] Since Bolling itself. Yes.

[00:55:28] [Will] 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 Supreme Court.

[00:55:44] [Dan] There must be lots of Batson cases involving the federal government, right?

[00:55:49] [Will] I think there are not nearly as many successful Batson claims for federal prosecutors as state prosecutors.

[00:55:55] [Dan] Yeah, but it can't be zero, right?

[00:55:57] [Will] Right. No, it's not zero. And I think some don't get appealed to the court of appeals. So it's not zero.

[00:56:02] [Dan] Okay. Just that one of those has never come to the Supreme Court.

[00:56:06] [Will] Or at least not one where the government loses.

[00:56:08] [Dan] Wow. That's fascinating.

[00:56:09] [Will] 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 government's. It's not that the federal government doesn't do racist stuff. It's just that it doesn't do racist stuff that US Supreme Court justices also think is racist. At least 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. And so just—

[00:56:43] [Dan] One of those federal— one of those contracting cases, is it Croson? Is that a federal government one?

[00:56:49] [Will] That's the—

[00:56:50] [Dan] Or is it Adarand? I thought one of those was about a federal program and one was about a city program.

[00:56:56] [Will] Croson is the state program and Adarand is the federal program. But again, those are ones where the—

[00:57:01] [Dan] Reverse discrimination.

[00:57:02] [Will] Yes. So that was going to be part of the pitch for the Bolling article, which again, it was good I didn't write, was largely what Bolling has done has not been to the benefit of the people you might've thought Bolling was supposed to help.

[00:57:15] [Dan] Yeah. Also, he's got a footnote that says he does have this other theory that under the 14th Amendment's Citizenship Clause, yes, that would prohibit certain kinds of discrimination among citizens with respect to civil rights.

[00:57:31] [Will] Yes.

[00:57:32] [Dan] So it, you know, it— I don't exactly know what the full scope of that would look like, but it wouldn't necessarily free up the government, you know, to have open season in terms of various kinds of discriminatory policies.

[00:57:43] [Will] Right. It's just not quite the same standard. And then also wouldn't apply to noncitizens like the claimants here. Yeah. I mean—

[00:57:53] [Dan] 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.

[00:58:11] [Will] 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.

[00:58:20] [Dan] Yeah. And domestically, you're not even supposed to discriminate on the basis of national origin, right?

[00:58:28] [Will] Domestically for states.

[00:58:29] [Dan] Yeah, yeah, yeah, yeah. For states. Right. If a state had a policy that 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?

[00:58:43] [Will] Yes.

[00:58:44] [Dan] Yes. But obviously, at the federal level, the government can say these countries but not these countries.

[00:58:51] [Will] Right. Well, and alienage. Even though the state has a rule that noncitizens can't have various jobs, those are mostly subject to strict scrutiny and also unconstitutional. Yeah.

[00:59:01] [Dan] Some of those have held up, right? Police officers, teachers, things like that.

[00:59:05] [Will] Right. Some. You have to create some positions that you think are sufficiently governmenty, 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 Bolling v. Sharpe is decided, that also changes.

[00:59:27] [Dan] Okay. So dissent by Justice Kagan. And with respect to the statutory issue, she is going to read the provision differently, right?

[00:59:41] [Will] Yeah.

[00:59:42] [Dan] 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, right? 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.

[01:00:11] [Will] Right.

[01:00:14] [Dan] 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 Mullin, just to go talk to a bunch of people, come back and say same result. Right. And that would be the end of it, right?

[01:00:34] [Will] Yes.

[01:00:34] [Dan] This is just a time-buying thing.

[01:00:37] [Will] 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 any 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 Mullin 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 the consultation thing was not followed adequately.

[01:01:25] [Dan] And so the review matters a lot.

[01:01:28] [Will] Okay.

[01:01:29] [Dan] 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?

[01:01:43] [Will] Right. She recounts a bunch of the— oh, she thinks it's a slam dunk winner on the did it taint it question. She would not get to the next step. And she quotes a bunch of the statements, which we've all seen on the internet, but still, when you see them all in a Supreme Court opinion, I don't even want to quote them on the podcast, Dan. They're bad. And she says, it is hard to imagine the statements being made today of any white community.

[01:02:09] [Dan] 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?

[01:02:25] [Will] Yeah. Although again—

[01:02:26] [Dan] 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?

[01:02:40] [Will] Yeah. So it's not like Republicans are usually Norway-Sweden worshipers in a bunch of other respects. But yes. And there's specific invocations of, they're poisoning the blood of our country.

[01:02:54] [Dan] Yeah, that's pretty bad.

[01:02:56] [Will] That's really bad, Dan.

[01:02:57] [Dan] That's probably the worst one.

[01:03:03] [Will] Yeah. 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. 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 by-the-way country.

[01:03:25] [Dan] 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?

[01:03:34] [Will] Right.

[01:03:34] [Dan] There's not White Somalia, which is next door to Somalia, that has all the other characteristics.

[01:03:40] [Will] And that's why this technical question about even just 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've 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've happened.

[01:04:00] [Dan] Yeah.

[01:04:01] [Will] And then who bears the burden of proof is the ballgame.

[01:04:03] [Dan] Yep.

[01:04:04] [Will] But okay, she does also make the point that this is interim relief and all the other factors should be considered. And, you know, this is going to lead to various terrible consequences for all the people affected, which I don't mean to slight, but the facts get me over it. But it's not wrong.

[01:04:20] [Dan] Yeah. Okay. We spent a lot of time talking about that one, but also potentially less legally interesting and maybe less practically consequential at the moment.

[01:04:42] [Will] Yes. Okay. So I'm not sure about the practical consequences, but this is litigation over a longstanding 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 the government can go and essentially stop a bunch of people from even being allowed to get in line.

[01:05:10] [Dan] Okay. Because under the law, it is clear that if someone walks into the country, 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. Right.

[01:05:28] [Will] If somebody shows up at the port, walks up to the immigration officer and says, I need asylum from—

[01:05:35] [Dan] Well, walks up to the immigration officer in the United States, right?

[01:05:38] [Will] In the United States, yes. And says, hi, I'm here and I need asylum. Then there's an obligation to figure out whether they're right about that. Yeah.

[01:05:46] [Dan] Or if they illegally cross and just show up to somebody in Chicago.

[01:05:49] [Will] 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.

[01:06:19] [Dan] Yeah.

[01:06:19] [Will] And there's actually litigation about exactly when they can do that and so on. So de facto, asking for asylum can be a ticket to be in the United States for a while.

[01:06:28] [Dan] Yeah.

[01:06:29] [Will] And also 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 from 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 US-Mexican border, but being held off from doing so, are they arriving in the United States?

[01:07:05] [Dan] Yeah. And so would you agree with me that if the statute had said arriving at, arrives at, this is an easy case?

[01:07:15] [Will] Easy case that they did arrive at.

[01:07:17] [Dan] Yeah. So if someone says, um, I mean, first of all, I find arrives in kind of an awkward phrasing.

[01:07:24] [Will] Yes.

[01:07:25] [Dan] It's not really a way I would phrase things, but I would say someone, you know, he arrived at my house at 4 PM, 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.

[01:07:40] [Will] Yes.

[01:07:41] [Dan] And in fact, someone could arrive at my house even if I'm not there, and they're not ultimately able to gain entry.

[01:07:46] [Will] 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 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— yeah, but you see how—

[01:08:19] [Dan] I feel like arrives at conveys 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.

[01:08:31] [Will] Right. Now here's the other— so as I understand it, and I'm getting some of this from the opinions. It's also— I may be misunderstanding, but as I understand it, the earlier version of the statute before IIRIRA, the Clinton-era immigration reform, did use at.

[01:08:46] [Dan] Mm-hmm.

[01:08:47] [Will] 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 in the course of changing that, they also changed the preposition. And did that change in preposition result in a change in meaning?

[01:09:20] [Dan] That is the majority's 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?

[01:09:49] [Will] Yes.

[01:09:50] [Dan] Because you could just say, well, if anybody who's physically present triggers these obligations, then you could just skip the arrives at.

[01:09:58] [Will] Yes.

[01:09:59] [Dan] Arrives— sorry, you could skip the arrives in. Right.

[01:10:02] [Will] Although, yeah, unless you think that arriving and being present are 2 slightly different stages, but yes. Yeah.

[01:10:07] [Dan] 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. Right.

[01:10:14] [Will] Yeah. I mean, yeah. And then I think, so the dissent also makes the point just that, you know, in terms of the motivation, the underlying motivation of the statute, right? The asylum regime comes out of the World War II experience of the failure to accommodate Jewish refugees from the Holocaust. Yeah.

[01:10:49] [Dan] But was prevented for— they were prevented from entry, right? Right.

[01:10:53] [Will] And, you know, I think one purpose of this legal regime is to make sure that doesn't happen again, to make sure that, like, if you show up here on the St. Louis, we have to figure out whether you're refugees, you know, have to figure out whether or not you're going to be killed in the Holocaust rather than just say, no, they never arrived here.

[01:11:09] [Dan] Yeah.

[01:11:19] [Will] Yeah. Now, I mean, maybe—

[01:11:21] [Dan] Or even let them dock, but not get off the boat, I think.

[01:11:25] [Will] I mean, yeah, there's a little question of where the in versus at is, because I think in the facts of this case, the applicant's feet are still outside of the territory of the United States.

[01:11:37] [Dan] Right, exactly.

[01:11:45] [Will] 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.

[01:11:58] [Dan] Yeah.

[01:11:58] [Will] 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. Yeah.

[01:12:16] [Dan] It's one of those cases where the majority uses these everyday language examples, which I find not really helpful. This is on page 8 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 1-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.

[01:13:01] [Will] Yes.

[01:13:11] [Dan] 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 can— 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.

[01:13:31] [Will] Yeah, I agree. And that just makes me not sure what to do with it at all, either way.

[01:13:34] [Dan] A guest does not arrive in a house. I mean, no one would— I've never heard someone say, the guest arrived in my house.

[01:13:40] [Will] Right. So Sotomayor has 3, and what's funny is some of them worked for me and some of them didn't. So she has 3 arrives in that are more natural. So she says, for example, a train conductor's announcement, we are arriving in Penn Station, might mean that the train is inside the station or merely that it has 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— when we're half a mile from Penn Station, I would think that's premature.

[01:14:10] [Dan] I think it's the present participle, right?

[01:14:14] [Will] Maybe.

[01:14:14] [Dan] Changes everything. We are arriving. The plane is landing right now. It does not mean the plane has touched down.

[01:14:20] [Will] Right. Good. So then—

[01:14:21] [Dan] You wouldn't say landing means being in the air.

[01:14:23] [Will] So her second example works for me, which is if someone said, call me when you arrive in Washington, DC, it would be logical to call them when you've landed at DCA Airport. Just across the river in Virginia. That one I totally agree with.

[01:14:34] [Dan] I agree with it, but I think I agree with it not for reasons of the construction of the word arrive.

[01:14:40] [Will] Right. Maybe we just agree with it because DCA is functionally Washington, DC, even though it's—

[01:14:43] [Dan] Yeah, I think people just say, look, you know, Northern Virginia, like, at least in the context of talking about arriving to a city on a flight, you mean, like, it really means when you land. That's what people mean by that.

[01:14:57] [Will] Well, I'll just 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.

[01:15:06] [Dan] Yeah.

[01:15:06] [Will] 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 DCA. 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.

[01:15:34] [Dan] Yeah. 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. I'm not sure that's right at all.

[01:15:44] [Will] Me neither. So here's the thing. We live in Chicago, which is in Illinois, and it's 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. Now arriving in Indiana. Now arriving in Michigan. We pass them and we say, no thanks.

[01:15:58] [Dan] Are they in the middle of the bridge? At the end of the bridge?

[01:16:00] [Will] Well, I've always assumed that they're at the border.

[01:16:02] [Dan] Yeah. Yeah, that's what I would've thought.

[01:16:05] [Will] 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.

[01:16:13] [Dan] Yeah. Okay. And then she's got another one, example from a movie theater policy.

[01:16:19] [Will] Yeah.

[01:16:20] [Dan] Anyone who arrives in the theater may buy a ticket, and all moviegoers must have their tickets scanned before entering.

[01:16:26] [Will] Yeah.

[01:16:27] [Dan] 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.

[01:16:38] [Will] Well, okay, this one makes sense to me, but not quite the way she does it, not quite on textual grounds.

[01:16:43] [Dan] 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?

[01:16:56] [Will] But you might imagine, I mean, this is a little— 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. No, I imagine that's the thing.

[01:17:08] [Dan] It's a right of the theater.

[01:17:14] [Will] It's a right of the buyer.

[01:17:16] [Dan] Yeah.

[01:17:16] [Will] Like the asylum statute, anybody who shows up can apply for asylum, and anybody who arrives at the theater can 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. 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 purposivism. But the fact that everybody is deep in on trying to come up with phrases of the word in.

[01:17:55] [Dan] But if you saw that, you would just be utterly baffled by the phrasing, right? Right.

[01:18:00] [Will] Well, look, everybody's obviously utterly baffled by the phrasing of the immigration laws. I mean, there are all these respects in the opinions of 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 asked them to start trying to figure out the intent of the IIRIRA compromise. This is at least something a generalist can grasp.

[01:18:31] [Dan] 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 2 overarching things. One is this creates weird incentives, right? Because it does mean that if someone gets into the country illegally, they then can go present themselves and say, I want asylum.

[01:18:56] [Will] Yes.

[01:18:57] [Dan] 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 lawful, right? It's lawful to do that. Does that seem right?

[01:19:09] [Will] Sorry, it's lawful to present yourself and try to claim asylum?

[01:19:13] [Dan] Yes, to not cross the border.

[01:19:15] [Will] Right. But it might not be lawful to present yourself at the border because they might stop you from presenting yourself at the border.

[01:19:19] [Dan] Yes. Right.

[01:19:20] [Will] No, now you have— 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.

[01:19:36] [Dan] Yeah, and that's dangerous.

[01:19:38] [Will] Dangerous.

[01:19:39] [Dan] 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.

[01:19:48] [Will] Yes.

[01:19:50] [Dan] Okay. The majority, its main response to that is a footnote which says, and this is Footnote 5 on page 5, 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 footnote 4 on 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, and before we run out of time, one is mootness, right? This is something, a jurisdictional thing. This is kind of one of your issues lurking.

[01:20:51] [Will] Yeah. Right. So, I mean, this policy is not currently in effect, right?

[01:20:57] [Dan] Yep.

[01:20:58] [Will] Or at least not in the Ninth Circuit?

[01:21:00] [Dan] Yeah, I think they're not doing it.

[01:21:02] [Will] Yeah.

[01:21:02] [Dan] And 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 7 of the majority just says, 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.

[01:21:24] [Will] Right.

[01:21:24] [Dan] 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.

[01:21:36] [Will] Yeah.

[01:21:37] [Dan] 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 Chatrie, right?

[01:21:48] [Will] Yes, yes.

[01:21:49] [Dan] That might've been helpful, but that was not available.

[01:21:53] [Will] Right. Although even— it's interesting, even in Chatrie, Alito goes out of his way to say, what I'm saying, it's advisory opinion. I'm not saying we lack jurisdiction. I'm just saying we shouldn't do it.

[01:22:00] [Dan] 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 Chatrie that she could cite.

[01:22:10] [Will] Right. Although there also, if it's a matter of discretion, the majority could say, look, we think the discretion's different because this is an 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 bucket this goes in is the so-called voluntary cessation exception to mootness.

[01:22:32] [Dan] Yeah.

[01:22:32] [Will] So if a policy's not in place, it's not necessarily moot if the reason it's not in place is just because the defendant stopped. And the obvious example is there's a factory that's polluting, and I sue to get an injunction to tell them to stop, and so they turn off the factory. And then as soon as my case is dismissed as moot, they start up the factory again. And then because filing fees cost money and it takes time to get a TRO, 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 Wechsler casebook. Yeah.

[01:23:10] [Dan] Which sort of makes sense to me.

[01:23:12] [Will] Well, sort of, although sort of the opposite. It's like normally the voluntary cessation exception comes up where I have stopped and I say I've stopped, and the question is, do you believe me? Like, 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 retain— we want to retain the option of doing it. And so, like, we could just believe them.

[01:23:42] [Dan] Yeah. Although, I mean, I guess it might depend on, you know, maybe they would need to make some showing that it's not just, like, totally hypothetical. They're like, yeah, there's a good chance we're going to want to do this, or something like that.

[01:23:52] [Will] Maybe. 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. Yeah. 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. Yeah.

[01:24:13] [Dan] 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.

[01:24:30] [Will] Is this the injunction bar?

[01:24:32] [Dan] Yes. Section 1252 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 class-wide injunctive relief, at least. And then there's a question of whether that extends to the kinds of declaratory relief that were at issue here. And he's like, basically, these are the same.

[01:25:04] [Will] And there's a 2022 case, Alemán-González, 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 II authority to exclude aliens from the country. And this is building on something I 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 unilateral, ineradicable authority to just say no.

[01:25:48] [Dan] And that is from the Article II, Alien power, right? Is that a clause that's in there? All—

[01:25:58] [Will] it's from the executive power, Dan. Yeah.

[01:26:00] [Dan] So this is— I mean, because to the extent the Constitution addresses this, it seems to address it in Article I, which gives Congress the power to establish— I don't really know how they would've pronounced this at the time, because they use, instead of a, they use an. Right.

[01:26:18] [Will] An uniform rule? An uniform rule?

[01:26:20] [Dan] An ununiform. Did they say it differently? Did they say like uniform or something?

[01:26:24] [Will] I don't know.

[01:26:24] [Dan] An uniform? Or did they just have different rules about indefinite articles?

[01:26:29] [Will] Doesn't Conor Clarke say we just don't know how to pronounce anything?

[01:26:32] [Dan] Basically, yeah.

[01:26:33] [Will] Yeah.

[01:26:34] [Dan] 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 is true that I did, and I don't think it's true that I said it.

[01:26:50] [Will] Okay. It's possible. Anyway, so that said, Article I gives Congress the power of naturalization, which is the power to decide who becomes a citizen when you're here.

[01:26:59] [Dan] But it's not necessarily admission, right? It's different.

[01:27:02] [Will] Right. That's the part. It's not crazy to think the admission powers— the question of who should live here as a noncitizen 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, but—

[01:27:23] [Dan] Yeah. No, I'm not saying it's obviously wrong, but it is non-textual, right? He's drawing on Blackstone, who says the executive power was all the stuff the king could do except for the stuff that's been given to Congress. Yeah.

[01:27:43] [Will] 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 executive power that I don't hold, but some people do.

[01:28:00] [Dan] Okay. Anything else to say about this one?

[01:28:03] [Will] It's been a long one, Dan.

[01:28:06] [Dan] Okay. Well, thanks very much for listening and bearing with this steady stream of episodes we've been giving you. Hopefully, the people that complained 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, pod@dividedargument.com. Leave us a voicemail, 314-649-3790, or use the function to leave a voice message on our website.

[01:29:04] [Will] Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.

[01:29:07] [Dan] And thanks very much to SCOTUSblog, with whom we are in partnership. So SCOTUSblog readers who are just discovering the show, thank you for joining us, and hopefully you— thank you for bearing 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'm on vacation for 2 weeks, and I did not successfully bring my recording equipment with me, and/or I did not find an amenable time late at night to record with Will.

[01:29:41] [Will] Thank you.