EMERGENCY Episode 9.5 | Birthright Oral Argument

Our hosts, law professor Ilan Wurman and Kathryn Johnson, break down what they just heard at the Supreme Court oral argument over President Trump's birthright citizenship executive order. They prognosticate on the result. Wong Kim Ark will not decide this case. Justice Barrett will be the critical vote: what is her theory of what connects ambassadors, invaders, and Indian tribes? What is the government's theory of domicile? What is the plaintiffs' theory of extraterritoriality? They are joined in the second half by guest Theo Wold, one of the architects of the executive order when he worked for the first Trump administration. What is at stake? Why does this issue feel so existential? What's next if the Supreme Court rules against Trump? Tune in and enjoy this emergency pod.

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Transcript

SPEAKER_01 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. This is our emergency podcast episode right after the birthright citizenship oral argument that just happened. I'm your host, Elon Werman, a law professor at the University at Minnesota Law School.

SPEAKER_03 0:13

I'm Catherine Johnson, the Center of the American Experiment.

SPEAKER_01 0:16

Well, let's dive right in. Okay, so what did you think?

SPEAKER_03 0:33

It was gonna happen.

SPEAKER_01 0:35

What's gonna happen?

SPEAKER_03 0:36

I thought it was pretty good. I think it was hard to tell which way people lean. I know that's what everyone is interested in. You know, how are they gonna decide? It's really hard to tell. I think people were hard on both sides and they both did a really good job. I was super impressed with um Sour. I thought he did an excellent job defending the um executive order. And personally, I thought he came out better, but it was uh it was a long two hours. I got a little tired by the end.

SPEAKER_01 1:02

So yeah, if you're looking just at the performance of the advocates, I think Solicitor General Sour was very, very good. And there was in particular this moment where uh Justice Jackson was asking him a series of questions, which I think maybe she thought was like, oh, a gotcha question. Like, how do you get uh around this problem, how do you get around that problem, how do you get around this still other problem? And each time he totally dismantled uh the argument and had a really, really good answer. Um, whereas the ACLU lawyer couldn't even identify friendly questions on the other side sometimes, which I thought was was interesting. But but look, arguing, I've never argued at the Supreme Court, and so I I can't pretend uh what it's like or how good I was.

SPEAKER_03 1:39

Sour kept doing this thing where he would say the exact someone else, uh Justice would would mention something and he would say, Yes, that is on page 647 of the Congressional Globe.

SPEAKER_01 1:51

That's the Congressional Globe in 1866. Uh but yeah, he was a very good advocate and he was he anticipated you know all of the questions, this argument. Again, I think this is one of the examples where Justice Jackson asked him, Well, what about Senator Benjamin Wade? He thought the temporary visitors were citizens or their children would be citizens. And he said, actually, it supports us because Fessenden asked, Well, wait a minute, that would be temporary visitors are citizens, or their children are citizens, and no one really thinks that. And Wade said, Well, yes, I think they should be. And then they rejected Senator Wade's proposal to just have a territory, right? And instead they used the language um, you know, subject to the jurisdiction. And so, yeah, he was he was very good. Tea leaves, tea leaves, I don't know. I don't know. I I think the conventional wisdom going in was that this would be an uphill battle. I heard that Trump left halfway through, so he was probably like, this isn't going very well.

SPEAKER_03 2:45

Um I don't know about that. He maybe he only wanted to listen to um the Solicitor General and not stay around and get angry for the other side. I don't know.

SPEAKER_01 2:53

Yeah, that could be the case. And I will say when you count the tea leaves, yeah, it's gonna be an uphill battle. I do think some of the Republican-appointed justices, like Justice Kavanaugh and Justice Barrett, were actually asking some interesting questions and we're trying to get to the heart of the issue, like what connects the historic exceptions, like what connects ambassadors and Indian tribes and invading armies, and is it a close set? So I think Barrett and Kavanaugh were quite engaged in that sense. And so if you suppose they're willing to be persuaded, you know, you've got Thomas and Alito who probably will go in favor of the Trump administration. Uh certainly I think Alito is likely to do that. Um, but even then, you know, Justice Gorsuch asked a few questions, but he was a lot more checked out than normal.

SPEAKER_03 3:39

And maybe I thought he asked kind of tough questions on both sides. I think um I didn't get any inclination of which way he was leaning.

SPEAKER_01 3:47

Yeah. Well, okay, and then the chief asked a good question here and there, but was actually quite kind of quiet. And I think people were looking to his direction since we maybe assumed that he would write it. Um, but okay.

SPEAKER_03 3:58

Well, one of the questions I thought was really interesting. I think it was Sodemeyer, but I'm not sure. She said, um, how much shouldn't it take a lot for us to kind of overcome the common understanding of birthright citizenship as it is in the public today? And maybe insinuating that sour did not have enough evidence to overcome that kind of um perception. And I thought he had such a good answer, but it does seem like kind of the fundamental question here like, is there enough for even the justices are going to be influenced by the fact that like our our country has, you know, thought about it this way for a while now. Um, was there enough evidence presented to change, to change the way we do things?

SPEAKER_01 4:36

Yeah, but what the public has thought the constitution meant has never, you know, been a particularly good source of law for originalists anyway, right? I mean, yeah, what the executive branch thought it meant and for a long time. And you know what? The executive branch actually thought the temporary visitors were excluded. You know, um, and if you want to go back also to what the public thought about things, as you know, after Juan Kimark, after the 14th Amendment was adopted, um, Solicitor General Sauerkip saying, look, there was a consensus that temporary visitors were not included. And that changed at some point in the 30s. And he had a really brilliant moment where he's like, why did it change? Because there was a some lawyer or who worked in the State Department in the Roosevelt administration who said, Juan Kimark doesn't actually give citizenship to children born of temporary visitors, but I think we should give citizenship to children born of temporary visitors. And then he became in this, he came to the State Department, was working in the State Department, and then made that a State Department policy in the 30s. And then so who's, I guess, what conventionalism counts? Whose public understanding counts? Like the fact that we've thought about this for 50, 60, 70 years, or wait a minute, they actually thought the opposite at the relevant time period. And it is that time that we're trying to figure out what the law that enacted right meant. And so I don't know, I don't know how this cuts.

SPEAKER_03 5:52

Okay, what I completely agree with you, but I think that they are, of course, susceptible to thinking of things in terms of their entire life. You know, it has been this way, and everyone living right now, that is how we have really thought of it. I think they're obviously susceptible to that. And I think you saw that in her question. Um, but I completely agree.

SPEAKER_01 6:07

Yeah, it's an uphill battle because look, Chief Justice Roberts, Barrett, Kavanaugh, they all grew up and went to school at a time when it's like, oh, this is such an obvious question. This is such an obvious question. The burgeoning originalist scholarship, you know, that has been um, you know, issued on this question and investigated on this question um in the last year or so uh was just they've not it, you know, they've they haven't been steeped in it, right? It hasn't been simmering long enough, which also makes me wonder if the Solicitor General made a mistake by even seeking Supreme Court review uh this early in this case. But um That's interesting.

SPEAKER_03 6:39

Why why do you think he did that?

SPEAKER_01 6:41

Yeah, I don't know. So there was this other case um in the Ninth Circuit that there was a procedural way that they could reverse, just like remember the first time that birthright citizenship came up to the Supreme Court, they said um this is about universal injunctions and whether judicial courts had the power to issue universal injunctions, so it wasn't actually on the merits. And then there was another case that came into the Ninth Circuit that said, okay, well, the state has standing. So they could have taken a state standing case and revised what people think about state standing, but the solicitor general then asked for cert or review before judgment in a different case on the merits. And so the solicitor general asked the Supreme Court to do it. And I guess the question is why? I mean, in a way, more time would have let you know the originalist scholarship and the public debate and the overturned window move a bit, but they didn't do it. But maybe they know something we don't. I don't know. I don't know the strategy. Maybe they wanted a ruling before the midterms. Is that cynical?

SPEAKER_03 7:36

Yeah, I mean, that's what I would think, but I have like a political brain. It seems like maybe that could be, but who knows? I don't know.

SPEAKER_01 7:42

Okay, so bottom line, what is the court likely to do? Again, it's hard to read the tea leaves, but I think we do know one thing that Wonke Mark is not going to decide this case. Do you agree?

SPEAKER_03 7:53

That was really interesting. Yeah, I I think that was what I my takeaway right away. They went after um the ACLU lawyer and said uh so many of them said that they weren't convinced by Won K Mark, and that was really essential to their case, no?

SPEAKER_01 8:07

Yeah, and and Justice Alito specifically said, look, it's in the question presented that Won K Mark's parents were domiciled. Chief Justice Roberts, one of the few things he said, is like, why does the opinion say domicile 20, 30 times? And the ACLU's lawyer pushed back and said, Look, you have to look at the reasoning of the decision. But even says Kagan was like, Well, then why did they do it? Why so even Kagan thought that that was weird? Uh so I, you know, it's possible. Now, of course, the ACL ACLU's position is Wankamark settles this case in our favor, but if it doesn't, we still win under the language of the 14th Amendment. I just don't see the court doing that. I think um you you might get Sotomayor or Jackson, maybe even Kagan, to say Wankamark settled this. Maybe even Gorsuch, you know, Gorsuch, ooh, his first question right out the gate, you know, he had that point where he said, you know, to Solicitor General Sauer, the Trump administration's advocate, he said, I don't know if you want to rely on Jonka Mark. And I was like, Yeah, what? Justice Gorsuch, did you read Won Kamark? You know, I I was I was just a little kind of surprised by that, but I don't think there are five votes to say Wankamark settled this. I I just think there's too much doubt in their mind. So that's a big deal. That's a big deal to say everything people have told you all along that Wonka Mark settles this. No, I I think that's a big deal. I think that's a big deal. They might still lose.

SPEAKER_03 9:29

What do they go to next, though? So if that's the case, what's the next thing um that they go that they look to?

SPEAKER_01 9:34

Well, it one of two things. It's either the statute that was enacted in 1952, and I just which just parrots the language of the constitution. So it's awkward. I mean, like you could say, well, we don't know what the constitution meant exactly, or we're not gonna say what's subject to the jurisdiction and the 14th Amendment meant exactly, but we're gonna rely on the 1952 statute that uses the exact same language, subject to the jurisdiction. It's like, okay, well, how do you know that they thought it meant something different? Like, are you gonna resort to legislative history, which conservatives and originalist don't really like to do, or textualists don't really like to do? And so it's possible at the end, Justice Kavanaugh was talking a lot about the statute and what to do with the statute, but otherwise, I don't know. Did they talk about the statute almost at all?

SPEAKER_03 10:16

Like, I just thought there was discussion about whether or not it was the same. And if they had meant the same thing by the statute that they did in the 14th Amendment, I was like, I don't know, I didn't understand how that was particularly relevant personally, but um Yeah, well, I mean, it's it's not it's good for the ACLU in the sense that the ACLU can say, hey, even if you don't want to reach the constitutional question, we win on the statute.

SPEAKER_02 10:40

Right?

SPEAKER_01 10:40

And so it gives them two avenues to win. And she was kind of the ACLU lawyer was kind of funny at the end being like, look, I'll take a win whichever way you want to go. Okay. Yeah. Um, but I think it would be prudent, she said, for the court to reaffirm the constitutional holding. Uh, and from the Trump administration's perspective, if they lose, I think they would rather lose on statutory grounds.

SPEAKER_03 11:02

Because Congress in theory then could change it, right?

SPEAKER_01 11:05

Correct. And I think was that Solicitor General Sowers' point? Um, I think he was pressed on this. He's like, look, we think they mean the same. We think they mean the same thing, we think they mean the same thing. But if you really get a rule against us, obviously we'd prefer the statutory ground. I mean, it was like a little awkward. Um but I don't know. I don't know. I didn't see an appetite for that. I didn't see an appetite for that. So what's left is the language. So if they're not going to do one Kimark and if they're not going to do the statute, we will get a constitutional ruling uh on the meaning of the 14th Amendment and in particular the word subject to the jurisdiction and how it connects to ambassadors and Indian tribes. And here I really think Barrett asked the most important questions because she was saying, is it the parents? Is it not the parents? Is it the territory that's doing the work? Is it and I think the ACLU lawyers said there was this fiction of extraterritoriality? And so they're trying to figure out, in other words, if subject to the jurisdiction in the 14th Amendment excluded ambassadors and it excluded Indian tribes and it excluded invading soldiers, is that a closed set? That's sort of the first question. And if it's not necessarily a closed set, what's the principle? What's the theme? What's the through line that explains those exceptions? And does it apply to new categories? And I just wish that there had been a little bit more discussion. I do think Barrett ultimately got to the heart of it, right? Um, uh uh of that.

SPEAKER_03 12:35

And because he's well, start, can you go back just a tiny bit? Because the closed set thing, I didn't understand before going into this necessarily, but the idea is that it isn't a closed set and that there is a through line in all those exceptions, and that through line could also apply to temporary visitors. Is that right?

SPEAKER_01 12:51

Yeah, I think that's a I think that's right. And Justice Alita was pushing on this because he said, listen, if it was supposed to be closed, why didn't they just say all persons born in the United States accept the recognized exceptions at common law? Like they could have said that. They could have said something like that, but they didn't. They used language, right, that establishes a principle that covers the common law categories and it covers the Indian tribes, and it may or may not cover new categories that they didn't really kind of think about. Now, Solicitor General Sauer's point was well, well, wait a minute. Everyone at the time thought temporary visitors were excluded. So, in a way, he doesn't even want to get into this fight. He doesn't want to get into like what are the exceptions. He's like, just listen to what they told us. They told us at the time that temporary visitors were excluded. And we've got 16 sources, we've got treatises, we've got secretaries of state, and so on. And so he's kind of fighting that. But, you know, how do how does that evidence in the 1880s and 90s, where everybody, the consensus according to Sauer that temporary visitors were excluded, but why? That still needs a through line, right? So if we think ambassadors, invaders, Indian tribes, and temporary visitors are not subject to the jurisdiction, the question is why?

SPEAKER_02 14:11

Yeah.

SPEAKER_01 14:12

And he seemed to say domicile, domicile, domicile, domicile. If you are domiciled in the United States and temporary visitors are not domiciled in the United States, that's sort of the through line. Um but and then there were questions about like, okay, but if you know what what what's the proposition that if you've been here 20 years illegally, are you domiciled? Can your unlawful presence defeat your domiciled, your domicile? And then, you know, Alito comes in.

SPEAKER_03 14:42

I was gonna say, didn't he say like Alito came in and said, uh, what if our what if our executive is not enforcing immigration laws? You know, if you're here illegally, but there's like no chance you're gonna get deported, um, could you then maybe not be a temporary visitor? I thought that was actually fun, kind of a funny question.

SPEAKER_01 14:58

Yeah, because he's he said something like, let's just say we had executives who have unenthusiastically right, was that the word he used?

SPEAKER_03 15:06

Unenthusiastic about enforcing laws or something.

SPEAKER_01 15:08

Yeah, that was unenthusiastic about enforcing laws, and then you could be domiciled. But if you were enthusiastically enforcing the law, then you could be removed at any time. And then how can you actually be domiciled if there is a sort of an enthusiastic um enforcement uh regime, right? To get them removed. So that so that was super interesting.

SPEAKER_03 15:28

Yeah.

SPEAKER_01 15:29

Um and it was sort of oh, yeah, go ahead.

SPEAKER_03 15:32

Well, no, I was just gonna say, but that the domicile is one thing, but wasn't that also um a possible through line through these exceptions? The parents, is that separate, or how is that related to domicile? Is that just because it all hinges on the parents' domicile? I mean, obviously a baby can't have its own domicile, right? So is that the same thing or are those two different ideas?

SPEAKER_01 15:54

So it they they are the same idea in the sense of a baby doesn't have its own domicile. And this is actually well established uh in the legal sources that children's domicile follows the domicile of the parents. So when Solicitor General Sauer actually says domicile is what matters, what he was really saying is the domicile of the parents matters. Uh and domicile, you know, also arguably could explain invaders because they're they're not domiciled, they're just an invading army. Uh, it could explain, I suppose, um, ambassadors who obviously you know don't live permanently in the country uh uh uh you know the local sovereign, right? They they presumably live in the country permanently of the sovereign that they are representing. The hardest question was the Indian tribes. Well, but wait, Indians are if tribal Indians are in US territory, but they are domiciled, and this is what Barrett was trying to get at, or maybe it wasn't Barrett, was it Gorsuch?

SPEAKER_03 16:56

I think it was both of them, both of the lawyers kind of got tripped up on this question. I think of what if there wasn't that statutory um element when it came to the Indians, would under your vision an Indian child be a birthright citizen? And they both were kind of like, hmm, I don't know.

SPEAKER_01 17:15

It was actually, yeah, that was the the one part of Sour's argument where it's like, oh, you didn't think about this question, which I guess I hadn't thought about that question because my theory, you know, my own account of the amendment relates to domicile, but it's domicile isn't the linchpin, right? Complete jurisdiction is the linchpin, right? When they say subject to the jurisdiction, they meant complete jurisdiction. And domiciled lawful aliens are subject to that complete jurisdiction. Is it possible that Indian tribes, because of their unique constitutional status, could be considered domiciled within the territory of the United States, but there is some other reason why the Indian tribes are not subject to the complete jurisdiction of the United States. In other words, normally with aliens, domicile makes you subject to the jurisdiction. We can even conscript you. But the Indian tribes were special. They were domiciled on reservations which were considered to be US territory. And so, although it would seem under Sour's test, under the Solicitor General's test, under the government's test, that they would be included, which doesn't make sense historically, because everyone knew the Indian tribes would be excluded.

SPEAKER_02 18:23

Yeah.

SPEAKER_01 18:23

The way I would have answered the question is to say, well, domiciled aliens are subject to the complete jurisdiction of the United States. And he did say that actually several times that domicile was necessary for aliens. Because of course, if your parents are citizens, they don't actually have to be domiciled, right? They could be abroad, they could be living in two places. But the question of domicile relates really to aliens, it's foreigners, people who aren't already citizens. So I would have just explained, you know, there are a couple ways one could be subject to the jurisdiction. One is your parents are citizens, and that means you are fully subject to the jurisdiction. The second, if you're aliens, that's when domicile kicks in. The third category is the Indian tribes. The Indian tribes could be domiciled in the United States, it's because they're within US territory, but there are other reasons that they aren't subject to the jurisdiction because we consider them to be quasi-foreign sovereigns, because we just consider them to be independent political communities. And so that's how I would have answered that question. But I will say that it's very clear that Barrett is really pushing here like what is that through line? Is it the parents? And if it's the parents, what about the parents? Is it the domicile? And if it's the domicile, then aren't the Indian tribes included? And that's a problem, right? For sour. And I've just given you how I would have answered it, but you know, that's not exactly how he answered it, but but but he got close. So so Barrett is the one to watch. Barrett is the one to watch because she was getting to the numb of it. She she, I don't think she thinks it's a close set. I I think she understands it's there's a through line here and it could apply to new situations, but what are those situations? And the alternative that the ACLU gave was extraterritorial, like fiction, a fiction. Which is kind of interesting.

SPEAKER_03 20:10

Yeah, I didn't get that. Can you explain that? What does that mean?

SPEAKER_01 20:12

Well, so ambassadors, are they, when they're in the United States, are they uh on US soil?

SPEAKER_03 20:18

Yes.

SPEAKER_01 20:19

I that's what I think. But some public law writers like Vattel said that there was a fiction of extraterritoriality. In other words, in other words, let me put it this way sour can win if the argument is that the through line, all the exceptions, all the people who are excluded, if the through line is the domicile of the parents, sour can win. But if the through line is that there is some fiction of extraterritoriality, or not fiction, the Indian tribes, although within US territory, are actually quasi-foreign territory. It's actually the territory of another sovereign of the Indian tribe. So then maybe the territory is doing the work. Invading soldiers, enemy occupied territory, then maybe that is foreign territory, right? And then what do you do with the ambassador? You say, well, it's a fiction. It's a fiction that where the ambassador walks, he's there's a bubble around him. That's what Barrett said, right? It's like the ambassador and his children, there's a bubble around him, and we pretend that the ambassador is always at home, that the ambassador is not actually on U.S. soil. Wherever the French ambassador walks, it's French soil. If the French ambassador's wife has a baby in an American hospital, the birthbed is a French birthbed. It is French soil just around the bubble. So that's that's the alternative.

SPEAKER_03 21:39

Okay, but also under that idea, if you're an illegal immigrant and you're here, aren't you sort of an invading force in some senses? And now it doesn't, I don't feel like that helps them.

SPEAKER_01 21:51

Right. So there are a couple arguments you could make about extraterritoriality. Now, look, the first line of defense for the government is that's not the test, it's not extraterritorial. Right. The test is parental status and in particular parental allegiance, which we argue it depends upon parental domicile, right? That's the first line of defense that the extraterritorial argument is wrong. The second line of defense is to say, but even if it is extraterritorial, there are arguments, you know, that Congress, one argument, which I think is a little weird, but some people have made is okay, well, maybe illegal aliens are like invaders. I don't think you have to go that far though, because it's enough to know that Congress defined arriving aliens who are stopped at the border, even if they're in the United States territory. Congress's laws provide that they are not in the United States. They are deemed not to be in the United States. And then the question becomes well, if Congress could do that, if Congress could create a fiction of extraterritoriality for aliens arriving at the border, why can't Congress create a fiction of extraterritoriality for all illegal aliens? Right? And to be clear, I'm not saying we, you know, can't charge you for crimes if you kill a border guard, you know, but can't so can you do the fiction for some purposes but not other purposes? But once you've accepted that Congress can create this fiction at the border, that people at the border are not in the United States, then this doesn't have anything to do with the Constitution. Then the Constitution gives Congress flexibility, right? And oh, there's so much that they could have talked about this. Um, but they didn't, but they didn't. Okay, one other thing though, though, about the foreign territory, the extraterritoriality point I want to make. First of all, it's not how the the leading source from which the extraterritorial theory that connects the dots comes from is Vattel. Okay, or a writer on the public law of Europe, so to speak. But you know what else Vattel says? That's that citizenship follows from the citizenship of the parents. So it seems so weird. Like you rely on Vattel for this fiction of extraterritoriality, but Vattel said that, you know, that birthright citizenship follows you sanguineists, right? Follows the parents. So it's weird. You're picking and choosing whether to use Vattel. The other problem with the territories uh is, you know, okay, what is the fiction? Why is there a fiction of extraterritoriality for ambassadors, children? Because of the parents. There is so there's a reason we pretend that that it isn't uh, you know, a US soil. And the reason is because you're within the allegiance of another sovereign in some respects. So the parent is still doing the work there. And then the most interesting moment, in my view, was when the AC, what about enemy occupied territory? So, under the terror extraterritorial view, uh loyal citizens in enemy-occupied territory who have children, are those children not U.S. citizens because an invading army is occupying the territory? But the ACLU lawyer said that there is a rule of post-liminy, which I write about in my article and it goes back to Roman law, that says, well, if you're born to loyal citizens and the sovereign reconquers the territory, gets the territory back, kicks the invaders out, then we'll declare them to be citizens. But why? But why? I thought the territory was doing all the work, but now you're saying actually loyal citizens, it's the parents' loyalty and the parents' allegiance is doing the work. So again, this extra, so Justice Barrett, if you are listening, there are a lot of problems with the extraterritorial view that were not really addressed, right? Why are ambassadors extraterritorial? It's something about them and their allegiance. What about the loyal citizens in enemy-occupied territory? Oh, it's something to do with the parents' allegiance, right? So again, this extraterritorial thing is not how the common law sources described it. Vitel described it, that's true, but he also thought there was no birthright citizenship. It was usanguinous, not usoli, right? And then what do you do with all those problems of you know, you know, loyal citizens and so on? So I was a little disappointed that they didn't um go a little through that through line.

SPEAKER_03 25:56

I thought they pretty much did, though. I think uh I think they went through most of that. And Justice Barrett seemed to continue her questioning to that end. I mean, I think she would probably come to the conclusion that you did just now that the through line is the parents. Um and she said at one point something about how, you know, okay, maybe America, maybe their intention was not for it to be justice. Oh, oh, what is it, uses soleil or uses of the of the soil, solely, solely? Maybe it's not strictly one or the other, but it's a combination of the two. So what are the rules for that? You know, and she was trying to figure that out.

SPEAKER_01 26:26

I actually thought she was very good at oral argument. I think she was excellent today because she recognized, and the solicitor general recognized, that this dichotomy between you solely, you know, birth on soil is sufficient, and you sanguine sanguinous birth by parents. That's like a false dichotomy, right? Yeah. She even recognized. Obviously, they accepted you solely to some degree. It says persons born in the United States. But then there's this other requirement that derogates from you solely. Now, if I were the solicitor general, I would have said something like, actually, Justice Barrett, did you know that the terms you solely and you sanguineness did not emerge until 1860? It was invented in the 1860s, in the 1860s. Now, of course, it goes back to older concepts, but this idea of dividing the world into you solely versus usanguiness is a historical. Each system had combinations of both. What did you do with your citizens traveling abroad? So that's eusanguinous? So is you sanguinous when your citizens were abroad, but you solely when foreigners were here? The system had a bit of both. And I actually thought Barrett was really good at that. And the solicitor general was good on that to say, look, it's some degree of U Sully, but it subject to the jurisdiction, then subtracts from you Sully. And the question is, what is it subtracting? And what is the through line? So I actually thought uh Barrett was uh very good um on all of this. I was a little nervous when coming right out the gate, she asked something about illegally trafficked slaves. And I don't know that the solicitor general, I mean, I think he had an okay, but that was wasn't that the first question, or no?

SPEAKER_03 28:03

Yeah, I think that was her first question.

SPEAKER_01 28:05

It was her first question. And I guess the argument was that if you're if you're trafficked into the United States after 1808 in violation of prohibitions on international slave trade, weren't you there illegally? Weren't you there illegally? And would they be citizens? I mean, they yeah, you know, um, do they have a domicile? Um, and you know, the I think he actually answered it well in the sense of he said, look, being trafficked illegally is very different from voluntarily coming into a country in violation of its laws.

SPEAKER_03 28:39

Right.

SPEAKER_01 28:39

In one respect, your presence is illegal, in the other respect, you know, in the illegal trafficking case, like the traffickers have committed a crime. What crime have you committed?

SPEAKER_03 28:50

I mean, isn't that sort of similar in that like they didn't do anything wrong necessarily?

SPEAKER_01 28:55

Well, exactly. So Justice Barrett was trying to get at, well, we have the enslaved population before 1808, they had all come legally, so they weren't illegal, they were just enslaved. But then after 1808, they were both enslaved and illegal. And does that mean we should treat them differently? And Solicitor General Sauer said, look, the Republicans told us over and over again slaves were under the protection of the United States, they had no allegiance to any African or foreign potentate, and that's what they all told us. They didn't distinguish in this sense. And probably the reason they didn't distinguish, one possibility is they didn't think about it, right? We're dealing with four million former slaves. Okay, how many of them were born to parents illegally trafficked? 10,000, I think there are some estimates. So a drop in the bucket relative to the 4 million freed people. Are they really thinking, oh, what about this tiny, tiny slice of people who are illegally trafficked in 1812 or whatever? Like they were thinking about that. They weren't thinking about that, right? But even if they were thinking about it, I have a feeling they would say, you know, our failure to prevent you from being enslaved and trafficked in violation of our laws doesn't mean you are out of our protection. In fact, we should protect you. You should be under our protection, you know, now that you've been here for a generation or what have you. Um, so I I thought that Solicitor General Sauer did okay um on that question. Um, but uh oh, you know, uh that that was the first question Barrett asked. But look, all in the spirit, Barrett's questions were all in the spirit of what is the through line and what are the implications, what are the consequences? So she's going to be the one to watch in all of this. She is either going to be able to move other people to her view or not, you know, because she is the one who's going to be doing sort of the um originalist uh work.

SPEAKER_03 30:45

Yeah, do you think this is gonna be like is this like a 5'4 situation? It's going to be really close, or what do you think?

SPEAKER_01 30:53

Uh my prognostic, I don't prognosticate. Uh uh, but I'm gonna prognosticate, I guess, since my listeners want it. I think it's probably going to be um 7-2. He's gonna lose, I think. I think I know you don't okay. You're more optimistic. I don't know.

SPEAKER_03 31:12

I just feel like I I thought they were really engaged. I think if uh I I think they were really engaged, asked hard questions on both sides. I think it's obviously hard to say, but I saw a lot of them like like Barrett just being so um interested in the specific details of what we've talked about, that I think is a good sign.

SPEAKER_01 31:29

Yeah, I guess you're right. If if they'd come in and said, look, Wonka Mark settles this, that would have been but they really didn't. They really took a different approach.

SPEAKER_03 31:36

And that's they questioned like the core of the ACLU's argument um so much that it seems like, and even the the justices, you know, like Sodomyer and Jack, I mean, they even questioned that that aspect of the argument. So it seemed that seemed positive.

SPEAKER_01 31:49

So what is your uh, you know, what is your prognostication? What do you what what what do you think?

SPEAKER_03 31:54

I don't know. Uh I think it'll be close to the closed.

SPEAKER_01 31:56

You made me prognosticate.

SPEAKER_03 31:59

I think I think it'll be close, actually. I feel like maybe it will be um 5-4 or something like that. I think Gorsuch is the one who maybe is like, he did not sound very convinced, I thought, in his questioning. I thought though, but and and then Chief Justice Roberts, he asked like one question too, so that was really hard to tell, but his question was interesting. Um he brought up.

SPEAKER_01 32:20

Was that the Won Kamark? Was that the Wankamark question where he asks, but it says domicile 23 times or 23.

SPEAKER_03 32:27

Yeah, I think he made that point. He also asked a question about um that this I saw a lot going around on on Twitter just right after um about the constitution and the the founders being able to um understand the implications of what they wrote in a world today that has all of this illegal immigration. You are a flight away from being able to just come and give birth to a baby um on our soil.

SPEAKER_01 32:51

Yeah, so the chief justice was rather enigmatic about this, but um we will see. Um his question, I do think, is promising since he asked about um Juan Kemark and does that you know settle this question or not? Uh so I I I do think that was favorable. I guess Alito and Thomas asked pretty favorable questions, especially Alito Barrett and Kat Kavanaugh seemed interested in just where does this evidence lead? He seemed open-minded. You're right. So of the six Republican-appointed justices, it was really Gorsuch who kind of came in hot against the solicitor general. And you know, so that's actually really interesting. So could it be 5-4 and Gorsuch joining the libs? What is it?

SPEAKER_03 33:28

That'll be my I'll make that my official prediction so that I have one, but I actually, you know, we'll see.

SPEAKER_01 33:33

Okay, so to our listeners, one more question before we bring in a special guest um for uh the the the audience here. Uh I was name drop once.

SPEAKER_02 33:43

Oh, you were name-dropped! We didn't talk about that yet. They said you're name.

SPEAKER_01 33:47

I'm kind of disappointed that I had to bring that up instead of you because now I just look, you know, I don't know.

SPEAKER_03 33:53

I'm sorry, I should have said that right away. You got a special shout out. We're so proud of you, Yulan. Uh, what did they reference of yours? Uh, what was he talking about, sour, when he referenced you?

SPEAKER_01 34:04

So, for the record, I'm the only professor that was mentioned on that side of the case, I believe. Uh, so that uh was you know flattering. And um, I'm actually um uh, you know, the the point I I my amicus brief about the common law and about safe conducts and permission and whether you would have been under the protection of the king for purposes of the common law rule as a foreigner if you weren't under uh if the king hadn't consented to your presence. Um it was brought up when I guess was it Jackson, just Jackson, or was it Sotomayor? I think it was Jackson. They were asking the Solicitor General about this domicile point. Okay, suppose you're right about domicile. How does that work with illegal aliens, though? Can illegal aliens establish domicile? And he referenced the code of Justinian, right? The digest. You and I have talked about this uh before. And then I don't know, someone with snarky is like, okay, Roman law. It's like, well, it's more than Roman law, there were statements, and there were some cases like the Pizarro or whatever, uh, that kind of talk about it, though not necessarily squarely. And then he said something, well, just like at Professor Orwin's brief. Uh, it was unclear the status of people illegally there in England, whether they would have been under the protection of the sovereign, was an open question. And I think what he was trying to say is illegal presence was relevant to whether you were domiciled and protected and under the jurisdiction of the king in the relevant sense. It's not exactly the point I make in the brief, but the things I talk about in the brief do support that assertion that illegal status was a question whether you would be under the protection of the king and the relevant rule, and therefore, maybe whether you could establish a domicile. And so I was uh, you know, warmed. At least I get one shout out in the Supreme Court uh before they what rule 7-2 against us. But we can now find out what our special okay, all right. You think it's 5-4 maybe, or maybe Gorsuch rules with the liberals. But um, well to to our audience in the last uh bit here of our immigrancy podcast, we have a special guest joining us, um, Theo Wold. Thanks, Theo, for joining us. Um, Theo Wold and I uh go way back. I think we did some um seminar together 15 years ago, 12 years ago.

SPEAKER_02 36:23

Yes.

SPEAKER_01 36:24

And uh Theo was um uh worked in the first Trump administration. Were you were you the head of Office of Legal Policy or you were in OLP?

SPEAKER_00 36:33

Yeah, I was the head of OLP at the end, and then for the first essentially two and a half years, I was uh a deputy assistant to the president for domestic policy, so mostly immigration stuff.

SPEAKER_01 36:44

Oh, great. And and we wanted to have Theo on because as um a member of the administration in the first round, helped uh you know do the legwork and do the drafting for the Trump EO that was eventually signed on the first day of the Trump, uh second Trump administration. I will say Theo then went on to become Solicitor General of Idaho and is now doing uh some stuff for heritage and is just a really great follow on X.

SPEAKER_03 37:10

I was gonna say, and uh has the best X account for legal takes, I think. That's how I know you primarily, Theo. So thank you.

SPEAKER_01 37:17

Well, Theo, thank you. Thank you for being here with us. And um, I guess I have a few questions. Um, you know, especially as the draft, one of the drafters, an early version, you know, this EO. Before we get your reactions, why is this so important? Why is this so important to Trump world, to MAGA world? And you know, let me just sort of set up the this question because I debated John Yu on birthright citizenship last weekend. And he's like, look, this is a drop in the bucket. This is a drop in the bucket of all the people who come here. It's not really such a big deal, but it does feel very existential to the MAGA world, to Trump world. And, you know, what's your take on that? Why is this so important?

SPEAKER_00 38:00

Yeah, I I think um I think if I could I can answer that question by way of an anecdote. It was interesting that uh Justice Jackson mentioned uh French nationals because there was this, you you you both may remember this, there was this really peculiar instance where 2,000 French nationals uh signed an open letter to the IRS asking for the IRS to pause and then you know hopefully um uh terminate their uh extrajudicial sort of extra uh territorial uh attempts to strong arm uh back tax payments from these French nationals. And it's really strange, but who were these people? Well, they were they were about, you know, as I said, about 2,000 French nationals who were born uh to military attaches and military personnel who were temporarily stationed at US bases following World War II. They never lived uh in the United States for any lengthy time beyond their infancy. Uh, they didn't go to American schools, uh, they don't speak English. Many of them, a lot of them are sort of like, you know, they're they're oxygenary and sort of older boomers, and yet they're facing this mounting pressure from the IRS for, hey, you're a US citizen by our record keeping, and you owe us uh back tax payments. And I think uh that anecdote kind of reveals the this notion of uh really, as some of the young Zoomers will say, you know, do we live in an empire or do we live in a republic? And one of the ways that you you get to the heart of that question is to define what constitutes a citizen. Who is a citizen and what do the privileges or rights of citizens entail? And I think across the board, whether it was like with the public charge regulation, uh, are you a self-sufficient immigrant? Can you pay your own way? Uh, you know, what when we get to the heart of voting and who counts uh for the purposes of reapportionment or sort of the construction of the Electoral College under the census, all of these are discrete questions at sort of getting at the main thesis, which is under the sort of Trump project, there's a real attempt to sort of narrow the expansive grounds of who counts as a citizen from the 1960s jurisprudence and get back to this fundamental notion that you want participatory members of the republic to not only have uh the you know, sort of the determinative say in our in our political life, but also reap the benefits that they pay for. And I think that's why birthright is is really sort of central to this, which is who who is a citizen and and how do we answer how you become a citizen? Is it just sort of the the the Chinese birth tourist who shows up in the CNMI for a long weekend stay at the casinos and has a kid? Is that a citizen? And and I think as you all uh, you know, as you and Catherine both encounter in your own work, both on campuses or on social media, the Zoomers have a very pronounced view of this. And some of this, some of their views are actually quite deleterious, they're very pernicious. Um, but they're trying to get to the heart of this question because they see their elders essentially just punting again and again on sort of this macro debate about uh, you know, who is a member of the republic and what rights do they get by being a member. And so I think birthright really gets to the heart of this. And I think it's a it's a glib, it's very shallow and it's very superficial to say, okay, even if you win on the merits of this case, you know, the the actual population set that you're affecting is fairly minimal in the grand scheme of things. Maybe so, but the the philosophical question about who has a right to participate in the governing, who is the consent, who who is issuing the consent to the governed, that I think is a fundamental question of the first order.

SPEAKER_01 41:23

And your view is that the Zoomers care a lot about that existential philosophical question, whatever. And I see Catherine nodding vigorously.

SPEAKER_03 41:31

Yes, I think I totally agree. Are you a Zoom?

SPEAKER_01 41:33

You were a Zoom.

SPEAKER_03 41:34

No, I'm like on the edge. I'm like the oldest millennial you can be, I think, 96.

SPEAKER_02 41:39

Oh well, I don't know.

SPEAKER_03 41:41

But I relate, I feel like I relate. Um, and I think you know, I live in Minnesota where um we've seen this play out in a really interesting way, where um we've had this fraud issue, right? And it's just so, so obvious to people how the people who are committing this fraud are uh Somali descent and they still live in America as Somalis completely in touch with their culture and they haven't adopted to American culture so much. And they are now defrauding all of this money away from us. And it's like this existential question of, well, why does this bother people so much? And I think that birthright gets to the heart of this too of like, why does this bother people? It's this idea that we know inherently that that person is not as American, that the this the, as you say, someone who flies into Saipan and has a kid, that kid is not as American as any of us. We just know that inherently. So the idea that we have a country where we can't say that outright and establish that is almost kind of depressing, I think, to a lot of people.

SPEAKER_00 42:35

I I think that's right. So I was just at uh four uh separate college campuses this past week, uh, Harvard, Yale, Princeton, and Penn. And the the number one question, and I I'm not sort of, you know, this is not hyperbolic, it's not exaggerating for the purposes of our current discussion. The number one question that everyone wanted to ask, uh, you know, people who were very obviously on the left, people who were very obviously on the right, was uh who is an American? And how do we count? How do we determine that question? Who counts? Uh is it, you know, as the Zoomers will say, is it just paperwork Americans? Uh is it just descendants of the Mayflower? Um, and I and I think, you know, sort of that colloquy between um the Solicitor General and the Chief Justice, uh, where the Chief Justice essentially gets a very memeable line, right? It's already being repeated everywhere. Uh different world, same constitution. Um and that's kind of his glib sort of dismissal of birthright, uh, of sort of birth tourism. It's a policy consideration that doesn't really affect the the underlying legal analysis here. And and while true, but uh here's the thing um, you know, the chief justice and even some of the concessions the Solicitor General made are not reflective at all of where the American people are at this point. I mean, the position that the Trump administration has staked out as much as people are saying, well, this is already going to shift the Overton window, even if we, the left, prevail in this court case, uh, we're already in a different place than we were. Interpreting the 14th Amendment. Look, I think the vast majority of young people I interacted with on college campuses, the vast majority of people I talked to here in Idaho are saying it should be retroactive. We have an enormous problem with folks who treat the American, you know, the United States as sort of a transient economic zone, who have come here under false pretenses, you know, seeking asylum or refugee status, where you know they travel to their home countries uh not just periodically, but you know, on an annual basis. Uh and then, you know, this notion of, as you've noted, Catherine, with folks like in in the Twin Cities, where you know, there's already uh increasing reports about, you know, just enormous amounts of hard currency that left the country from the Minneapolis International Airport of undeclared hard hard currency. And anyone who's visited that airport will tell you everyone who works there is uh you know a Somali national. The TSA is almost all operated by Somali nationals. The folks who work in the airport, the airport bathrooms and provide services at the check-in counters and the like are all Somali nationals. And so you're you're dealing with something that's not really like Tammany Hall, it's it's much more like the balkanization of the country. Certain diasporas control certain sort of geographic locations. And that is the lived reality for a lot of Americans. So, as much as the esoteric discussion today was interesting and fascinating, I think this will create even more of a legitimacy crisis for the court because where the popular discussion is occurring, especially on with the rising generation, is in a very different place. They're already asking hard questions and they're coming up with very difficult questions that really get to the heart. They challenge some of the notions that we have that undergird our our republic.

SPEAKER_03 45:35

Well, and it when it comes to the arguments they were making, just really quickly, I thought it was interesting that the conservative justices, in my view, were dismissive of this claim that Sauer made that, you know, no other country really does it like we do here. A lot of countries in Europe don't have birthright citizenship. One of them made the comment, like, well, we don't care what other countries do. And that's true, right? So they're kind of ignoring the popular debate on one sense, but then you get Justice Jackson who is saying, you know, well, what are we gonna do logistically? Like when the mothers get to the hospital. So you can tell that the liberals know that this is a debate that's going on in popular culture, and the conservative justices seem to want nothing to do with it. And I think that also is a point of contention among a lot of conservatives. Like, we should engage with these issues. The justices should talk about it, and they don't want to on the same level.

SPEAKER_00 46:22

Yeah, and I and I think that that sort of uh the the back and forth with Justice Jackson is very revealing, I think, of a macro sort of legal sort of I think justice ability uh point that I would make, which is this is so obviously not a question that courts should determine. I mean, the practical application here of, you know, very few Americans, including those who represent us in Congress, have any understanding of how you go through the process of procuring paperwork to secure a social security card or live proof of live birth necessary for obtaining a birth certificate. So even members of Congress charged with administering this, even those who were in the Social Security Administration or at the State Department, they have very little handle on this. And the dual sovereignty here that states are charged with the record keeping of vital statistics, they're sort of the frontline officers uh in managing healthcare clinics and hospitals where these births occur, but the legal authorities and the resources, financial resources exist at the federal government. This is all extremely complex, extremely complex. And so for justices to say, well, the 14th Amendment is it is, you know, it's ossified in amber. It cannot be changed. The interpretation, those exceptions are fixed. Number one, number two, even if you tried, this seems really complicated. What about foundlings? Uh, what about stateless individuals who arrive in our airports? Right, all of that should show you you, you, you, you should not be making a bright line rule here. This should be left to policymakers and those who are intricately involved in the application of the technology, uh, the databases, the working of the paperwork, the frontline nurses who uh, you know, routinely, I mean, routinely, when we were drafting the first version of the birthright EO, we heard from so many hospital administrators who said it's just routine, to the extent that even when we know an ambassador or his wife or her husband are here in the hospital and they are giving birth, we still extend them the paperwork. Even though we all know that that's that falls with outside of the exception here, uh, you know, outside of the rule, we still give them the paperwork to file for a passport and a social security number.

SPEAKER_01 48:24

Yeah, so point a point that I make regularly is as you say, Theo, Congress has the naturalization power and can solve all of these problems. It could pick which problems to solve, it could choose to not solve other problems. And so this idea that practical consequences, like, okay, that sounds like a legislative problem. So I want to ask you something related uh to all of this, though. You seem fired up. The Zoomers you talk to uh seem fired up. And I've been wondering why the Solicitor General sought cert before judgment in this case on the merits. Because I would have thought that the longer it waits, then the more the new originalist scholarship for me and others, you know, kind of percolates and simmers, the overton window moves. Is it possible that even if they lost, they knew this would fire up the base in a certain way to help in the midterms? But then still, what's next? Suppose it does help in the midterm. Still, what's next? A constitutional ruling against the administration. You know, how do you overcome that? If it's statutory, you can get rid of the filibuster and you can, you know, clarify. But if it's constitutional, that's like a that's a problem, right? I mean, what what are the Zoomers gonna do with that, right? What what what's the solution there?

SPEAKER_00 49:29

Yeah, I and I thought that was a really interesting exchange that that uh that when Sauer essentially said, I think it was in questioning from from Justice Gorsuch, that they track together, obviously that's central to their argument, the statutory sort of considerations and the constitutional interpretation, but they would rather a clear, decisive uh sort of uh opinion on the constitutional matter. Um look, I'll I'll say I'll say two things. Uh one, as it relates to your scholarship, this this was one of the major uh hindrances in 45, right? Which was there just weren't reputable um, you know, uh first-line thinkers who had done a recent uh a recent gloss on this question. Yes, there's a lot of uh writings from the late 80s and early 90s where people were sort of articulating like a fringe theory of of the citizenship clause, but no one had done a significant discursive look, especially as it related to sort of the common law origins. And people sort of just accepted essentially the dichotomy that Justice Barrett offered, right? There's solis and there's juries, and that's just that that's it. That's all we have, right? Um, and and I I think uh it's to your credit, uh, and really you deserve a lot of praise, and that's actually because you know I'm on your show right here, but it you deserve a lot of praise. And as as as is noted, and and folks on the right and those in the academy who are interested in meaningful, thoughtful discussions on on interpretive uh questions of this significance, they they should recognize that the amount of acrimony and antipathy that's being thrown your way from the left is an indication that you have disturbed conventional wisdom, right? Like you're you you personally are sort of in in the dock, as it were, for venturing uh uh the discursive look at some of the historical record that you did in addition to some of the popular commentary you've offered. So I think long-winded way of saying in 45, one of our great uh disabilities was there just wasn't a body of meaningful scholarship on this subject. And I would have thought, to, to your point, that a longer one runway would have only further uh further sort of cemented, like your you having the ability to respond respond to Professor Whittington. That would have been important, as he was referenced you know twice by by the liberal justices and and and and uh by by counsel for for you know uh bar Barbara. I I think it would have been really important to have more of a back and forth with some of their what I think are fairly tendentious arguments at this point. So that would have been important. Number one. Number two, what happens next? I mean, look, the only way forward i i if it's an adverse ruling would be a constitutional amendment. And I I think we've arrived at a juncture where some of that may be important. If that's the opinion of the court, that even the exceptions themselves are are foreclosed and they have a fixed interpretive meaning. Um and and I do think it's an interesting question as it relates to the 14th Amendment, because you know, a lot of the ratifiers and the drafters, you know, including folks like Senator Trumbull, were very clear that they they wanted to take the the body of the amendment out of the uh sort of the statutory authorities of Congress. Uh so if if that is where they're gonna go, then it it would require some kind of amendment process. And I think the problem there, as Catherine and I were just getting at, um, is most of the rising generation thinks nothing happens anyway, right? It's all kind of fake. The processes are fake. Um, and uh to invest the time and the resources in amending the 14th Amendment, maybe you get 12 states, uh, maybe you get all the red states, and you end up with you know 25, 26, you're still short. Um and so I I don't really know what the what the administration's sort of small pee political end would be in this process. Um, but but an adverse ruling on the constitutional grounds will be, I mean, it will be enormously destructive to the to popular confidence in in any of these sort of sub subsubsidiary issues on on, you know, as I said, on public charge, on um, you know, reinterpreting or strengthening our understanding of asylum and refugee uh laws. And and I think just one other point that I often make in popular discussions, and it's it's worth just noting here, is, you know, in many ways, we're we live in an old testament regime. We're we are ruled by judges. Um and I I think increasingly, like just yesterday with the judge who said, hey, you know, the Homeland Security app has a constitutional sort of providence, it has a right to exist. You have to restore that app and you have to reprocess all the 900,000 people who came in under this app. For most Americans who are following this, that strikes them as incredibly hollow and deeply ideological. And and the confidence then in the judiciary as a sensible actor, I think it just it just further it's an open wound. It's a canker at this point. I think it's only going to continue.

SPEAKER_03 54:14

And he can't build his ballroom because it's too tall or whatever.

SPEAKER_00 54:18

Wasn't that another ruling? Yeah, yeah, because they're, you know, they're they're they're I mean that that's one of those things that's incredibly galling to me because the the left, throughout you know, several presidencies now has had no, you know, no abeyance to the McMillan plan, no recognition of the authorities that are are granted uh for for sort of neoclassical architecture on the mall or within the government jurisdiction of the of DC proper, but suddenly the ball, you know, this ballroom is too never you mind like the alien spaceship that landed on the mall uh that created some of these new modern museums um that the left celebrates. That that's not uh that's not in contradistinction of clear statutes, but the ballroom is too tall. The ballroom is too tall.

SPEAKER_01 55:00

Plus, who who has standing to sue over all of these things? I don't know. I think we need to look into that on our next episode. Um, but okay, but but Theo, I asked what happens if the Supreme Court rules against this, and I get everybody's fired up. Is that your take listening to argument? Are you more optimistic? I agree.

SPEAKER_03 55:18

What are the new tea leaves?

SPEAKER_01 55:20

Yeah, Catherine thinks it's what I'm yeah, I'm not I'm not optimistic.

SPEAKER_00 55:23

I'm I'm cautiously optimistic about where Justice Kavanaugh was in his questioning. I I think um sadly, uh as is is is true so often now we we belabor the implication of some constitutional doctrine as it relates to Indian country because of Justice Gorsuch's sort of um, I would say over-indexing on tribal sovereignty matters. I I I think it has relevance here, but but the answers uh to some of those questions, particularly Justice Barrett's hypotheticals, um I I don't I don't I don't know if you get Gorsuch. I don't know if Gorsuch was satisfied with Sauer's answers in their back and forth. And I don't know if the back and forth between between Barrett and uh Ms. Wang is is would sway uh Justice Gorsuch's vote. And so I I mean definitively the chief is not on board. That seems very clear. Um and I think uh the open question would be where where are Gorsuch and Barrett? And I I think Barrett's questions I I thought her question on you know um on victims of trafficking was uh was was f sharp and novel. And I I thought Sour's response to that um was lacking. And I I thought the I I I hoped the administration would have a little bit better answer for those instances of people who are brought to the country uh really essentially uh under uh under sort of uh a criminal enterprise and then have they have issue in the United States. What about those two? I I I would have assumed that the administration would have thought through that in a concrete concretized way. So I I I think, yeah, I'm not I Catherine, I'm not I'm not hopeful. I mean, I think at the best we've got uh probably three votes, um, which I will say long long a long time ago, that was my gambit. I I you know people said you won't even get one vote at the court for this. And of course, I I felt at the time we would we'd have two, uh, and my my hope was at least that maybe the floor is is four. Um and I think maybe four four four might be a bridge too far.

SPEAKER_03 57:27

Between this and the inability of Congress to pass the Save Act, I think that that if the if this really comes out and it's it's um negative, I think that that'll be so uh it'll just be hard, I think, for for people on the right, because those feel like two huge losses. I mean, we can't do anything in Congress, we can't do anything in the judiciary. Uh I just I'm just hopeful that it doesn't get to that point.

SPEAKER_00 57:51

I I think I think the the only the only quibble I I would make with what you just said, Catherine, is I don't think it's just the right. I I hear this increasingly from a lot of working class people, and it gets back to what you said about the twin cities, which is I I obey the law, I pay my taxes, I I am a good citizen, I participate in my elections, I can't pay, uh I can't afford my mortgage, I can't afford to send my kids to school, and the government, in many instances, knowingly, knowingly, is allowing for sort of a vast network of you know, conspiratorial network to defraud the taxpayer and to still steal millions upon millions of dollars from the government. I I honestly, I mean, and this is one of sort of my predominant interests in politics, is I think it's not just creeping cynicism now. I I think really you're looking at an existential crisis of it's no longer a question of like, well, is the rule of law, well, how does the rule of law operate? What does it mean for my daily life? It is there is no rule of law. This is the jungle. And you, as I I say often, it's the law of meth addicts, right? Whatever's not nailed down, I'm taking it's mine. And I think the lesson learned from Minneapolis or the inability to pass the SAVE Act is we're not really interested in in solving these problems, of ensuring that only citizens participate in the consent of the governed. Uh, and so why bother? Why why care? And I don't mean to be so doomsday, but again, when you're on in in the hinterlands in a place like Idaho, you hear people say uh why why do I still play by the rules? It seems like only suckers do that.

SPEAKER_01 59:24

Well, let me bring it back to the Supreme Court. We're we're running up on our hour here, and so let me ask you a question that relates to this, okay? This this rule of law question, and are we playing by different rules? And it is a little upsetting that really we're just fighting over two votes. Like the left has to win two of six. Why? Because the three liberals, we know that they're really not gonna now look, they they I want to be careful before imputing their good faith. And I will say there was one opinion written by Jackson and Sotomayor on the APA zone of interest test that I thought was right. And so that was a seven-two dissent, and I thought Sotomayor and Jackson were right about that. But when you come to a case like this, you know that no amount of evidence is really gonna dislodge what they think the answer is here. Whereas if you look at the other six, you know that they're gonna try to go where it leads them. They have misconceptions, they have preconceptions, predispositions, but they're going to actually seriously grapple it. But we're fighting over two, so it's two out of the six who are taking this seriously, which is okay, well, that's not a way to run a court and decide these questions. And that's what bothers me about this, that the deck is stacked, because you know that there are three who will never rule for you, no matter what, on this existential important issue. And and that's what bothers me about the court. Let's get your reaction and then we'll probably have to let our listeners go.

SPEAKER_00 1:00:42

Yeah, no, I I I agree with all of that. And I think one of the most interesting exchanges today was Justice Jackson's uh sort of gloss on Wang Kim Arc and Chinese Exclusion Act Law, where she said, Yeah, yeah, yeah, but you know, all of these references to domicile and the like are included because they know that they've got to sell this opinion on this deeply unpopular conclusion to the American people that actually uh, you know, a citizen of China with allegiance to the emperor is in fact an American. And I immediately said to my my wife, you know, who's a better lawyer than I am, I said, this is such a tell, right? Like it's such a tell that this is the way the left-leaning uh justices, or at least, you know, two of them, think about the the enterprise of judging and of the sort of writing of a public opinion where you give an account of your reasoning, which is you you include things to hoodwink the people. Uh you you you you include things to justify what you find to be maybe an anomalous decision, and and in order to sell the American people, you give them a noble lie. Um and I and I think you're exactly right, Elena. It's just that there are three that are dead set against this, and and that really does get to the I this notion of democratic legitimacy, you know, that that uh and and it's a it's a continual problem for the judicial selection apparatus on the right, which is we we want independent thinkers, we we we sort of vet for sort of expansive macro theories of interpretation. Um, and when really honestly, increasingly what we should be looking for is courage. I mean, that that is should be the predominant virtue. And again, I don't want to blow smoke your way, but one of the things that you did, I think was a real manifestation of courage, which is to take on an interesting question. It I think, regardless of the outcome uh here, it's still a fascinating question. It has lots of you know, sort of cascading implications for the constitutional order, but to to row against conventional opinion here is is deeply difficult. It it requires a real manifestation of public spiritedness and courage. I wish the justices had that. I I wish you maybe you could have given them a seminar on it.

SPEAKER_01 1:02:49

Well, Theo, you're hired. Catherine, I want you to talk about me like that more. Okay, no. Um, well, thank you so much uh for joining us uh to our listeners. Um, we hope to drop this as soon as we can. Please, as always, like, subscribe, follow. Rate. We are again fighting one star liberal ratings on Apple, which we are overcoming one rating at a time. But uh please consider following us and we got a lot of things.

SPEAKER_03 1:03:13

Yeah, we got linked to by Mother Jones, uh, the Mother Jones hit piece, which they linked to us, which is great. Thank you. But it did, you know.

SPEAKER_01 1:03:21

That's right. Nope, nope. They say no publicity is bad publicity. Well, there was this Mother Jones hit piece on me, and they at least linked to the podcast. So I tweeted out, and I'm like, thank you. Um, so okay, well, thank you so much, and we'll be back to our um um normal uh programming and normal topics um next time. Thanks for listening.