Episode 25 | Alito Day

In this special episode, our hosts — Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld — tackle four recent Supreme Court decisions. They focus on the two big immigration cases from Thursday, where the Supreme Court upheld the right to hold migrants on the Mexico side of the border without processing their asylum claims, and held that Trump could end Temporary Protected Status for Haiti and Syria. Our hosts talk about the Left's judicial lawfare, and ask deep questions about the nature and purpose of our asylum and immigration laws. They round out the episode with the Court's decision invalidating restrictions on public carrying of firearms in Hawaii, and they ask what about communist regimes expropriating private property makes the three liberal Justices want to side with Cuba instead of an American oil company.

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Transcript

SPEAKER_02 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.

SPEAKER_00 0:07

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

SPEAKER_01 0:10

And I'm Josh Kleinfeld, a law professor at Scalia Law School. Catherine, what is on deck today?

SPEAKER_02 0:16

Big SCOTUS decision day?

SPEAKER_00 0:17

Yeah, well, this is presumably our first of a couple end-of-term Supreme Court episodes. First, we'll break down the Supreme Court's big immigration cases from Thursday that favored the Trump administration. Second, Hawaii can't prohibit guns on private property open to the public. We'll explain why. And third, just as a little chaser, what is it about communist governments seizing private property that makes the three liberal justices want to sign with Cuba? We've got some questions.

SPEAKER_02 0:45

Let's dive in. All right, Catherine, where should we start?

SPEAKER_00 1:02

Well, let's start with the two immigration decisions. Both were written by Justice Alito. Um, the gun case, we'll talk about later, was also written by Justice Alito, so big day for him. Um now, Elon, you and I talked about both of these cases before on the podcast. The first, um, Mullen versus El Otralado, has to do with whether the administration can stomp migrants in Mexico or whether those migrants have arrived in the United States for purposes of the immigration statutes. Because if they are arriving, um, as we talked about before on our previous episode, that means their asylum claims have to be processed, which means that many of them will be inevitably released into the country or detained in the United States, which is costly, obviously. And now I'm not a lawyer here, but this all sounds sort of obvious to me because how does one arrive in the United States if you haven't arrived in the United States? Because these people were being stopped outside the border, right? I mean, it was a little bit before they got to the border, they were being turned away. So duh, right?

SPEAKER_02 2:11

Well, if you squint hard enough at it, arriving in could mean arriving at. So it's you know, kind of sort of the same thing, or approaching, I I don't know. But you're you're right. And that's what the Supreme Court held in a six to three breakdown. Um so again, it it broke down uh ideological lines here, um, even though it seems like a pretty clear textual opinion in my view, though I think Josh uh disagrees a little bit. Uh so the argument here on the other side. Now remember, all this started with the Obama administration metering policy, right? Where uh so this is if you were interesting point, maybe we should just say that twice. The Obama administration started this policy, just yeah, and and the Trump one kept it, and Biden kept it too, uh, until it was invalidated by a lower court during the Biden administration. Then they finally got rid of it. But this was during the 2016, you know, caravans coming through Mexico. Again, part of the reason that led, I think, to Trump's election was all of these immigration issues. And uh they they couldn't just they couldn't be processed. They didn't have enough personnel, didn't have enough capacity. And so what the Obama administration, those crafty, evil lawyers, thought to do is like, hey, let's stop them before they get to the border. Let's stop them in on the Mexico side of the border, so that under the statute we don't have to process their asylum claims because we could say they aren't actually arriving in the United States, they are still in um Mexico. Now, this all seems like a pretty easy textualist decision, and that's what the Supreme Court majority held, that arriving in means what it says. It means arriving in. It doesn't mean arriving at, it doesn't mean approaching, it doesn't mean attempting to arrive in. And in fact, there are other parts of the statute that say things like uh like enter or attempt to enter. And this part of the statute didn't say anything like that. Now, uh the other side of the argument is that this part of the statute is a bit redundant under that reading. Why? Because you have to process the asylum claims not only for aliens arriving in the United States, okay, but also for aliens physically present in the United States. And so the argument on the other side is that arriving in, although not redundant, not superfluous of um physically present, is totally subsumed. So I guess it would be redundant in that sense. They're not here's what I'm trying to say. The terms are not coterminous. They're not the same thing, but all aliens who are arriving in are necessarily physically present in. The idea here is that it was uh redundant of the term physically present. And that is a problem, and Justice Alito for the majority says it's a problem, but it is not overcome by, you know, uh the ordinary sort of clear meaning of what it means to arrive in. And they use all sorts of examples, you know, like uh uh a linebacker, I don't even know if it's the right word, uh uh not a linebacker. Who's the guy, you know, that uh running back running back, the guy who's running with the ball getting over the yeah it's called the running back. I usually used to play football in middle school. That's about when I peaked, uh, and which is why I think I was a cornerback, I was very good at intercepting footballs uh for whatever reason, uh, because I was young and you know, small and I could run and no one would see where I was, and then anyway, whatever. So I know what a cornerback is, but okay, so the running back, um, if one is stopped at the one-meter line, he has not arrived in the end zone, right? Which is which is what's the one-meter line.

SPEAKER_00 5:42

Elon, let me save this quote and save you from your football knowledge. Okay, the running back does not arrive in the end zone, and six points do not go up on the scoreboard when he is tackled at the one-yard line by the defense. I think that yeah, that is a great point. That's what we have here, right?

SPEAKER_02 6:00

Okay, in defense, I did sleep on a couch like two days ago because I forgot to book a hotel when I went to the DC circuit due to some comfort that I spent the night in DC. And actually, I should have just emailed Joshua, uh, but instead I could only think of like two people to contact at the last minute. And so I ended up on a couch, which seems silly. Uh, but anyway, okay, back to uh the merits uh of this decision. So someone, uh, a running back who stopped at the one-yard line has not arrived in the United States. And it is redundant, right? But my argument against it, and then Josh can explain uh why he thinks it's actually a stronger argument, uh, is that we, as we've talked about before on the show, Catherine, uh, the statute distinguishes between aliens arriving, okay, in or arriving at the border, right? And aliens physically present already in the United States. Why? Because some people are arriving uh and need to be processed in certain ways. Some people sneak in and then they are physically present without admission. And some people, by the way, are physically present in the United States with admission. So really you have three kinds of categories in this respect: physically present who snuck in without admission, physically present with admission, and those arriving in. So technically, could the statute for this purpose have just said all aliens physically present in the United States shall have a right for asylum? Yet maybe, but then it would have raised a question. It's like, wait a minute, the other parts of the statute distinguish between physically present aliens and arriving aliens, right? Because it usually talks about physically present aliens with or without admission, and it distinguishes arriving aliens in that way by saying physically present with or without admission. But if you just say physically present, it would raise a question, wait, are you also intending to include people arriving at the border? Or it it does, in my view, actually clarify because otherwise there'd be this confusion of these different categories of cases being uh, you know, different categories of aliens being used for different purposes of the statute, it would raise this question as to whether this provision only applies to those physically present in the interior already, as opposed to the border. So I think it's a helpful clarification. I don't think it's uh redundant. I think it's actually was an easy case, and to be clear, supported by the Biden, Obama, and Trump administration. So, Josh, why were all three of those administrations wrong? And why uh what is the best argument that the Lily livered liberal lower court judges were right?

SPEAKER_01 8:19

Um, I I think this appears easy because of language games with the word in. Right? What does it mean to be in? And then we get to talk about like running backs and NFL. The the single-word approach to statutory interpretation makes it seem like it's just um lawyers, probably left-wing lawyers just gumming up the works, making it complicated, probably for self-serving reasons when it ought to be obvious. But that is not what's going on here because the single-word approach is misleading because language is really contextual. So here's how this statute works: uh, big picture. An asylum seeker has a right to come into the USA if he's in danger of persecution at home. We might not like that, but it is the law, right? So Congress passed that as the law. So if you have a reasonable fear of persecution on a variety of grounds, like religious grounds, like I'm gonna be executed because I'm a Christian, you have a right to come into the United States. Well, how do you know if someone has a legitimate claim of asylum? And the answer is, and it's been this way for like like like many, many decades, you show up at the border and you say, I'm an asylum seeker. And then the border agents interview you to see if it's a legit claim. It's called a credible fear interview. That's how you process the right. I mean, try this as an analogy. Let's say you're um running a club um open to uh okay, I my mom was a professor at the University of Alaska. Imagine it's the University of Alaska Alumni Club, and anyone who is an alumni of the University of Alaska has a right to go into the club. Well, how does that work? Someone knocks on the door and says, I'm an alumni. And then the people working there say, Well, let me check. Do you have ID? What's your student ID number, something like that? And you prove that you're an alumni and then you can get in. That's just how this works in a sensible way. And this whole thing comes from the St. Louis experience. So there was in 1939, right, the eve of World War II, there was a boat carrying 900 Jewish refugees from Nazi Germany. They arrived on the shores of the United States after some other stops and said, Let us in, we're refugees, and they weren't interviewed. They returned to Germany where they were almost all executed at Auschwitz. Uh, and it was in the wake of that, in 1967, that the United States said, sort of, like a lot of laws, a lot of laws are collective never agains to something we regret from the past. Uh, this law was passed as a collective never-again. If you're a refugee with a legitimate claim of asylum, you knock on the door and you say, Let me in, you get interviewed, and if it's credible, you get to come in. So interviewing people who knock at the door just makes sense, and it's how it always worked until late 2016. And then the scale went way up. There was a flood of people at the border, it was the end of the Obama administration, and border agents started turning people away. They started saying, Well, you need appointments to interview for the um for asylum. And then the president changed, and uh, the first Trump administration made this a method of keeping out immigrants on on the basis of a statutory theory. We don't have to even interview you to see if you're a legitimate asylum seeker unless you're in the United States and you're not in if we keep you from ever setting foot in. Like if you never break, you know, in football at the at the touchdown, like say it's like a glass wall. If you get even a corner of the football over that, you break the glass, you get your touchdown. Uh, well, the border agents apply the same theory, you're not in. So this is a classic case of a textual argument that's pretty straightforward when you focus on a single word, but the statutory scheme no longer makes sense. The whole point of the statute is to evaluate people who are knocking at the door. And beyond that, the policy side here is hard too. I mean, when there's a million people at the border saying we want in, we want have a right to get in, we're all in fear of persecution, you have to review our claims of asylum one by one, and they're armed with all these, you know, nonprofit lawyers who are there to get as many in as possible on the basis of often, you know, specious, unreasonable asylum arguments. That's a problem. And a reasonable country should have the right to say no, we don't want to interview you. On the other hand, Congress makes the law, and Congress decided they never want to do to future people what they did to the St. Louis back in 1939. So this is not an easy case. This is a hard case when you look at the whole statutory scheme.

SPEAKER_02 12:53

I think, Catherine, actually, what do you what do you think? Hard case? Who's persuaded you? Your pal Elon or new pal Joshua?

SPEAKER_01 13:00

I feel I feel like Elon and I are as so often are like um uh you know the the the jousting knights uh asking for the damsel's hand or something like that.

SPEAKER_02 13:12

So well, this is a particularly wise and practically sensed uh damsel. So who's right?

SPEAKER_00 13:20

Wow, Josh really made a good point. Okay. Um I'm I'm not sure. Now I'm kind of torn. I mean, to me, it I I tend to fall on the side of like whatever means necessary to save the country. And so I agree with Josh that clearly Congress has made some really crappy laws here, but we need to save the country. And if the Supreme Court is who's on our side right now as conservatives, as base conservatives, and there's a textual argument to be made here, we need to use that textual argument to save the country. And so that's where I tend to fall, which is probably if you are a very principled uh, you know, law scholar, you might disagree. But I think that I see I see your argument, Josh. But I would say that these are the means necessary we have right now to try and do something to stop the onslaught of people trying to take over our country.

SPEAKER_02 14:11

Okay, let me let me make an argument. Let me make an argument in defense because Josh, I think it's a well, you've just made a compelling normative case. I don't think you've made a compelling legal case for the following reason. Why can't we enter into a deal with Mexico that says, hey, we have a problem. We don't want all we have a serious immigration problem, we think a lot of these asylum claims are fraudulent. We would like you, Mexico, in exchange for these economic benefits, some deal, we would like you to stop all of these immigrants coming through your country to our country one mile before the border. And we want to keep them there. We do not want them coming to our country. Has that violated the spirit of this law uh any differently than stopping them 10 feet before the border, under your view? I think you would have to analyze them the same. Uh under your view, they're all trying to get into the United States, they all want to get into the United States. Merely wanting isn't enough, though. You have to arrive in the United States, and then we can't turn you back without processing your claim. But if we can stop you a mile away from the border and ask the Mexican government to do it because of some big policy crisis, why can't we ask the Mexican government to do it 10 feet from the border? Or why can't we ask the Mexican government to allow us to do it in their border, on their side of the border, within 10 feet of our borders? So I just I am not compelled by sort of the the arguments that you made. I don't think the statute falls apart. The statute works perfectly. If you get to the United States, we will process you. But we can make it difficult for you because this is not 1939 Germany. And you know, we have a reserve the right to make it difficult for people to come here when they abuse the process, right? What's wrong with that argument?

SPEAKER_01 15:48

Um it is if it I think distance matters. It matters whether you're knocking at the door or like I don't know, calling on the phone or something, like that University of Alaska Club. If you're if you're uh knocking at the door and you say, let me in, that's I'm I have a right to be here. Uh they need to find out whether that right is credible. That's the whole purpose of the club. And I think likewise it's the purpose of the statute. Your argument about making a deal with Mexico uh to avoid the situation in the first place is interesting. I think that would be lawful. I just don't think that violates the statute the same way as just sort of like um closing the door and refusing to open it. Like, what if that University of Alaska club just refused to open the door? Now they have a job to do. Let's say you fund it, you're a wealthy University of Alaska alumni, you're funding the club and you're saying, okay, you exist to provide, you know, a nice a nice venue to have coffee and hang out for University of Alaska members. But the people who work there are really lazy and they don't like University of Alaska alumni, so they just refuse to open the door.

SPEAKER_00 16:58

That's not what's going on. The University of Alaska is out of resources. We have no more money, we're in debt. We have too many people, we have no more resources. That is the more like aligned, I think, comparison, wouldn't you say?

SPEAKER_01 17:11

What if they're not? What if they just don't want these people in because they disagree with Congress? Or what if they're what they're lost for resources and they just don't want, I mean, Congress said you let them in if they have a legitimate claim of asylum, but the people who are actually manning the door don't want that.

SPEAKER_02 17:26

And okay, what if after years of experience, it turns out that thousands of people are trying to enter into this club that only fits um a couple hundred people, and though it's supposed to be reserved for members of the university club. And uh it turns out that thousands of these people flood every day and present, you know, some form of identification, and it turns out that they're not actually allowed entry, and as a result of that, you can't even get in because everybody's busy, right?

SPEAKER_01 17:53

But now you're making a great policy argument, and one I agree with, but it's not a legal argument.

SPEAKER_02 18:02

It is a it is a legal argument because I'm describing precisely the situation that this that the statute allows them to do. In that situation, would the university club be in its right to say, actually, we can stop you down the road? Like we have some deal with the property down the road, we'll stop you all there, and I don't even have to check your IDs um in that situation because our rules say we have to check people knocking on the door and we're preventing you from knocking on the door. And the people who are already like genuinely entitled. Now, I get your point is that there might be some people in there who are entitled to enter, right? Who will never even be given the opportunity? Yeah, that's true. But is it unlawful under the rules of the university club to stop them elsewhere because of this big problem that they're confronting?

SPEAKER_01 18:47

So I don't know how these governments are a club that says you're supposed to interview, you're you're supposed to let in anyone with a legitimate claim, and you're not people from legitimate claims from even being heard.

SPEAKER_02 18:59

It doesn't say that. It doesn't say one more thing. The statute says we have to process all legitimate claims of persons once they enter the United States. That's what the statute says. It doesn't say what you're saying it does.

SPEAKER_01 19:12

No, no, the statute uses the word in, but it says what I'm saying it says. Uh, I don't think so. Well, the reason why. About this, about this less literalistic approach to statutes, this more contextual approach I'm endorsing. Uh, I don't think it's anti-textualist. I think it's taking language in its proper context. But let me just say this: let's let's think back to Fisher v. United States. Remember that case, that 2024 case? That was about the January 6th protesters, right? And they were being prosecuted and convicted under a statute that said it was a Sarbanes-Oxley Act statute, right? Sarbanes-Oxley Act is about financial regulation. And there was a section of the statute, C1, which says um no altering, destroying, mutilating, or concealing documents, and a subsection C2 that said, or otherwise obstructing official proceedings. And they were prosecuted for otherwise obstructing official proceedings. And if we took the approach of the majority in this case to statutory interpretation, we'd just say, obstructing. Obstructing means interfering with. Otherwise, otherwise means any other way of interfering with. Therefore, they're guilty. In fact, that is exactly what the dissent in Fisher v. United States said. It's exactly what justices Sotomayor, Jackson, and Kagan said. Exactly. And it was the majority in that case who said, no, no, we have to take these words in their context. This statute is about documents, it's about uh concealing records, otherwise impedes of Fisher proceeding, can't possibly have the breadth of meaning it would be assigned if we were being purely literalistic or one-word textualist. So, Catherine, it just depends on the case, right? Shoe is on the other foot as soon as you look at Fisher of the United States.

SPEAKER_02 20:58

Hard disagree. Hard disagree. We're getting legal. Okay, go ahead, Catherine.

SPEAKER_00 21:02

We have to move on. We have to keep going. But while we're talking about the descent, Sodemeyer read her descent from the bench, which is like very kind of like they do that when they're really passionate, right? Is that right?

SPEAKER_02 21:15

Yes.

SPEAKER_00 21:16

Okay, so apparently Alito did an impromptu response after she did that, after she read from the bench, which is also unusual. And in Sodemeyer's descent, she said classic, you know, left-wing thing, more people will die because of this. Um I just thought this whole thing was so interesting because why is this so political? To me, I don't know that this seems like a totally clear cut political case. Like we talked about, this started under Obama and kept going under both Republican and Democrat presidents. And yet they're so passionate saying people will die with this, you know, in place. So why did this happen to be on party lines, essentially? And why didn't we get any Crossover. I think that's one of my questions. But I'll also read part of what Alito said in his opinion responding to the dissent, which I thought was really good. He said the centerpiece of the principle dissent is an impassioned argument against the administration's policy choice. But we have neither the ability nor the authority to assess and countermand that choice. Our authority is limited to interpreting and applying the law. Fire.

SPEAKER_02 22:26

Yep. Yeah. When liberals say things like, people will die. My first question, by the way, is always like wait, how do you know? It's like they cite, oh, well, an amicus brief tells the story of this lady who dies, and Justice Soromayor presents it as if this happened. This person died. We have rules of evidence in federal court for a reason. I don't know if that's true. I haven't had a chance to cross-examine the witnesses. I haven't seen anything. There hasn't been a trial. And Justice Soromayor just presents this as if it's like legally established facts, like in a court of law. So a lot of it is just speculating, hearsay, um, relying on assertions made by interested parties in Amikus briefing, right? So I think the whole thing is crazy. But like I do want to say, and I think Josh, I will agree with you on this, and you will probably agree with me on this, consequences do matter, right? If the consequences are absurd, then you should favor an interpretation that avoids an absurd result. But the fact that, like, oh, some people might die because of some chain of events that partially relates as you know to this particular policy, like, come on, that's not what the consequences rule uh is about, right? It's not a good thing. I agree on our counts.

SPEAKER_01 23:32

And um I think that's really insightful about how, you know, a lot of the time these people will die, kinds of arguments that you hear so persistently from the left are relying on predictions that aren't well supported. And then there's another problem too, which is, you know, it kind of gives the game away. It's like there's these elaborate legal machinations. But what they're sitting on top of is this sort of passion for reducing human suffering. And in some ways that's a laudable passion, but taken to its extreme, it makes it impossible to have any sort of regulated order in the world at all. Like, um, you know, if you uh, I don't know, charge um a hundred dollars for medicine, people will die, so make it free. Well, then you don't have any medicine being produced anymore because no one can make a profit from it. I mean, it just seems like this this same structure kind of um repeats at a at a sort of a thousand different fractal levels of sort of like the left says there will be suffering, and the right says there has to be a rules-based order.

SPEAKER_00 24:42

Well, and remember that it's people will die, but the alternative is coming into America, and this is happening at the expense of Americans. So people in America are dying at the hands of illegal immigrants. People in America are suffering and don't have jobs or have lower wages because of illegal immigrants. People, I mean, there are all kinds of consequences for people in our country because we've let in so many migrants, illegal and illegal in the case of, you know, like TPS. But they don't seem to take that into consideration that they're the Supreme Court of the United States of America and the people that we should be defending are our people, and we should help the rest of the world to the extreme that's another thing that would become at our expense.

SPEAKER_01 25:25

That that's a deep problem, too. I mean, it's like uh, you know, if we imprison people, they'll suffer, they'll die. Uh, we should abolish prisons. If police carry guns, people would be shot wrongfully, they'll die. Well, if police don't carry guns, if we don't have prison, what about the victims on the other side? So there's always this sort of there's something about the kind of um the pattern of moral thought and moral passion on the left that I think is deficient. It's sort of a hard philosophical question to get at exactly the deficiency, but there's something incomplete about it.

SPEAKER_02 26:01

The last thing I will say also as a segue to moving on, uh to think to the incentivizing illegal migration point. Why is Sodomayo right, though, in her prediction, more people will die? How about if more people are aware that this is the policy, fewer people will make the trek because they know that they you know rarely will actually have a valid claim and that they'll be stopped and that they won't make it. And so actually fewer people will die because fewer people will make this treacherous trek. So um, I know, Catherine, you also want to talk about incentivizing illegal immigration. There was sort of this nice part um uh of the dissent. Is the dissent, do you remember our discussion, Catherine, about mandatory detention?

SPEAKER_00 26:34

Do you think the dissent um you tweeted about it and I was thinking back into our when we talked about this before, because I think the liberals are basically making an argument that we made, right? I don't know. You talk about it, Elon. I just thought it was very interesting because I also care about not incentivizing illegal immigration, and all of a sudden the left is acting like they care about not incentivizing illegal immigration. I didn't know they cared about that.

SPEAKER_02 26:57

That that that's right. So this is might come back to haunt them, right? And I'll try to be as sort of just short and clear and concise about this uh as possible. So the liberals in dissent said the majority view would incentivize illegal immigration. Why? Because it incentivizes making yourself one of those physically present persons. And so if you just legally are trying to walk up and present yourself and they stop you in advance, you're not gonna get processed. So sneak through the border and then you're physically present and then find a way to sort of make a claim. They say this incentivizes illegal immigration. I just hope they remember it when the mandatory detention cases come up, because we've talked about this, Catherine. Remember, in the mandatory detention cases, there's this question of whether applicants for admission, right, who are within the interior of the United States, right, who snuck in, can they be mandatorily detained under the statute? Or does the mandatory detention provision only apply to those arriving in the United States, right? So the statute defines applicants for admission as those arriving in the United States or those who are present without admission, right? Those who snuck in and those who are arriving. But the mandatory detention applies to applicants for admission who are seeking admission. And the question is, are people who snuck in seeking admission? And our whole argument is wait a minute, if if that's not true, if they aren't seeking admission and they don't have to be detained, then you're incentivizing illegal immigration. Because if you arrive at the border, they could detain you until they remove you. They could detain you for months, they could detain you for weeks. Whereas if you sneak in, all of a sudden they can't detain you because by sneaking in, you're not seeking admission. So it seems to me that every liberal judge who's concluded that you can't mandatorily detain people who successfully evaded inspection at the border are incentivizing illegal immigration. And so the question is will the liberals remember this when the mandatory detention cases go up? Will it be 9-0?

SPEAKER_01 28:50

The answer is no.

SPEAKER_00 28:54

Okay, so the second immigration decision we got, uh, this was on Thursday, uh, Mullen versus Doe. It's about ending temporary protected status for Syrians and Haitians. Um temporary. I'd just like to, again, accentuate that this is called temporary protected status. Haiti was given this status in 2010 after a major earthquake. Syria, it's been in place since 2012. And TPS allows people from these countries to come into the US and stay here, work here as long as their country is granted that status. And then once it's removed, they are supposed to leave. And importantly, it is discretionary. So the executive does not have to designate any country for the purposes of temporary protected status.

SPEAKER_02 29:42

By the way, Catherine, one point about the temporary. Someone was putting out on X. You notice that the Democrat talking point now is to just you call it TPS. You don't actually spell it out. Because if you if you spelled it out, the people would be on to the you know, the chick and pick it up.

SPEAKER_00 29:56

So they just say TPS. What does the T stand for? Like that is so good.

SPEAKER_02 30:01

And some people just say protected status, protected status. What happened to the T? Anyway, go ahead.

SPEAKER_00 30:06

So here's what it says in the opinion. In 2018, the government attempted to terminate Haiti's TPS designation, but court orders prevented that termination from taking effect. In 2021, following a change in administration, the government redesignated Haiti for TPS, citing gang-related violence, human rights abuses, poverty, inadequate health care, and food insecurity. Relying on these same grounds, the government continued to extend Haiti's TPS designation. The net effect was to allow Haitians who benefit from TPS to retain that status for 16 years. I found this especially interesting because doesn't that describe most third world countries? Why is Haiti specifically pulled out for being impoverished? I mean, there are lots of countries around the world that are, you know, unfortunately impoverished. Why is Haiti special and why do they get that special designation?

SPEAKER_02 31:02

That's a good question. Josh, go ahead.

SPEAKER_01 31:05

Oh, I was just gonna say, you know, when I was at ed, um I was at the Department of Education, I was uh uh chief counsel. I was always struck at how hard it was to stop giving grants to universities or NGOs or schools. Um, you know, executive says this is discretionary, we don't want to do it anymore, or you're violating the civil rights laws, or you're politically biased, or you're just doing bad scholarship. The regulatory apparatus makes every decision to stop a benefit something that can be litigated. And so there's this sort of metamorphosis process where something starts out as a gift, right? Like a discretionary gratis decision. Then it becomes a right somehow, and then it becomes a sinecure. So, like, like universities getting grants is perilously close to just being like a welfare benefit for universities. Well, why does this happen? And the reason is that the APA, the Administrative Procedure Act, and other laws, um, they make the executive give reasons and follow procedures. And that seems reasonable, right? Like, yeah, if you're gonna stop giving a grant, you have to give a reason for it. You have to follow the procedures. If you're gonna do anything with the power of the state, you have to give reasons. That's just like a due process fundamental, and you have to follow some procedures. The problem is, as soon as you do that, you can get pulled into court to say your reasons aren't good enough, your procedures weren't well followed, you didn't follow them closely enough every time. And so what you fundamentally do politically, the underlying political situation, is you say, Oh, you thought this was a political decision. Like the executive is doing something, but we had an election, new executive, we're gonna stop doing that. Oh, no, no, no, no. The executive was doing something, the new executive gets a new president gets elected, the executive wants to stop, but you have to give good enough reasons to satisfy who judges, and you have to follow the procedures closely enough to satisfy who judges. And now we're in litigation. And I think what this fundament this case is fundamentally about, can you take that power away from judges? Can you strip them of oversight of whether the executive is following the law closely enough?

SPEAKER_02 33:21

And can I just add here, so just to emphasize the part that Catherine read, Trump tried to end this in 2018, and as Catherine read, the courts stopped it until there was a new election. Two years passed. And then so the Biden administration just re-initiated the temporary protected status. And now Trump wins again, does the same thing, I think basically, not quite on day one, but and now here we are a year and a half later. And the courts had still stopped it, right? So now you have four years of various Trump administrations trying to do this, and courts thwarted it, all under the guise of process, process, process. So this gets into the merits of the question, right? That um judicial review is foreclosed under the statute, okay, of any determination of the secretary with respect to temporary uh protected status, the designation of a country. And what the lower courts said is that, well, yes, the determination itself can't be reviewed, but we can review whether you followed the statutory process leading up to your I exactly I forgot about this.

SPEAKER_01 34:26

Yes, to making of the exactly what I was trying to describe, this this metamorphosis from like uh somehow you create a legal structure around a gift, and then the executive can't change it without courts looking on. And in a perfect world, courts would be um, they would say this gives the executive discretion, and the executive exercised its discretion, you know, close the book. But in the real world, judges are very partisan, and um litigants can can to some extent forum shop for the judges who are partisan in their favor. And the end result is that, you know, the the politics is if you're against the administration, which won an election after all, the politics are okay, can we figure out a way to get this into court?

SPEAKER_02 35:12

And the whole point that gets it in court. And the the whole point that I'm trying to make is suppose that the liberals won. Okay, so the liberals said, well, we can, in fact, review the process, and they allege that the secretary did not consult with the relevant agencies, which of course is ridiculous because you know, Secretary Noam or Mullen could just say, Yeah, I called them on the phone and I took him into account and disagreed, right? Suppose the the court agreed with the liberal position here and said you didn't properly consult, so they sent it back. You think it's just gonna end? You think you know, 30 days later they're gonna say we consulted, we did it again, now courts please let us do it. No, there's gonna be another lawsuit. They're gonna say, no, you were still deficient in this way. We're gonna and we want discovery, we want proof that you did or you didn't, you know, consult this or that agency. And before you know it, what happens? It's 2029. And under the guise of letting, you know, making sure that the executive follows the right process, but of course, we can't review the ultimate determination. You never actually allow the executive over four years to make that determination because of this legal judicial law fair. It's outrageous. And I called it at the time. Catherine, go ahead.

SPEAKER_00 36:20

Well, I was just gonna ask, but could conservatives use the same law fair in the beginning? This is like a little bit tricky because probably in 2010 we were fine with giving Haitians TPS, but are there situations where we should be doing the same thing where when or are the cards just not on our side? Do you see what I'm saying?

SPEAKER_01 36:39

No, we do. I mean, we do exactly that. We uh when Biden administration was in power, um uh conservative uh litigation nonprofits tried to come up with ways to get to get for example, the student loans, right? The Biden administration was trying to get rid of the student loans, and conservative groups had a standing problem. They were like, okay, this is benefiting the people who are most directly affected. So who could this is plainly illegal, but who can sue? And like tried to come up with ways of getting in court. So both sides do it. It's just it's just a really ugly process because what it does is replace democratic politics with sort of lawfare. I disagree.

SPEAKER_02 37:21

I I agree with Josh that we we do try to do it, but the parameters of the game are totally different, right? The conservatives all recognized, hey, we have a standing problem. We need to really think hard to figure out who has standing. And they came up with Mohila, the loan service administrator in Missouri. And yeah, there were some questions as to is that really enough for standing, but they tried hard to play by the rules that they understood that the law sets. The Democrats are not constrained by that. No conservative judge would have looked at this statute and said, actually, yes, I can review whether the Biden administration correctly followed the process. Every single conservative judge would have said, I don't have jurisdiction under the statute. It says no judicial review of determinations. But liberals know they could find liberal judges in crazy jurisdictions to do crazy things. When conservatives try to do this law fair thing to stop Biden administration policies, they really try hard to play by the rules that the con that the court has set for these things because they just don't think they can find conservative judges who are gonna bend things. And you know, like, yes, we had during the Biden administration what like 14 injunctions in four years out of like the Western District of Texas Amarillo-ish division because there's like a friendly judge there or something. Okay, here we have 80 lawsuits against the Department of Education, one single department.

SPEAKER_01 38:43

They are almost one a day. Um, and I'll put it on I don't mean to argue that it's symmetrical. I don't I don't mean to argue that it's symmetrical. I in it and I don't even think the student loans case is the best example. I think I just want to make the narrow point that um, you know, to some extent, uh the game is the same on both sides, but one side has certain advantages in playing it, right? One side has its arm tied behind its back and the other, but the game is the same. The game is we lost an election. Um let's sue and let's see if we can find ways of preventing the administration from doing what it wants to do through um procedural claims and delay and wait for the next election. And it's it's a bad game, but I don't see a way around it.

SPEAKER_00 39:33

Yeah. Okay, I think we should also move on to the racism of it all, because there was definitely a race element that I didn't necessarily see coming in the SCOTUS part of this. I feel like the, you know, people talk about it a lot of claiming that Trump is racially motivated when he's making these decisions like rescinding TPS. Um, but I didn't think it would make its way into the SCOTUS decision, but it absolutely did. Elon, do you want to talk about that?

SPEAKER_02 39:59

Yeah, so the first question that I have, the Supreme Court didn't have this question, by the way. But that's why we're rationally based. Like we'll tell you things that the Supreme Court didn't even tell you uh that you should know. Which is why can the racism claim, why can the equal protection claim be reviewed at all? If the statute forecloses review of any determination, which is what the Supreme Court said, why are constitutional claims different? This goes back to a case we mentioned to our listeners when we talked about the law firm litigation and whether there's judicial review of security clearance revocations. I mentioned an old case called Webster against Doe, in which um the CIA director had fired somebody for being homosexual and they thought that this was like a national security threat, and they said we can't review it, committed to agency discretion by law, but we can review a constitutional claim. And Justice Scalia is like, what? And Justice Tavis, in this opinion, says, Why can we even review these claims? The carve out for constitutional claims uh is uh in Webster veto is is wrong. And I agree with that. What gives courts a right to just review constitutional claims if there's no cause of action, if the statute doesn't give you a right to sue? Right? It's one thing if the government comes after you and detains you. Well, then you can file like for a writ of habeas corpus. If the government breaches a contract with you, you can you have a private cause of action, you know, like a tort claim or a contract claim. But if the government says you don't get an immigration privilege, like what cause of action do you have to sue them? Right? It's what's called a public right, a public privilege, which we've talked about before. If you're denied a welfare benefit, you think you're wrongly denied a welfare benefit, you can't sue the government because of sovereign immunity unless the government consents to sue. Why am I saying this? The government does not have to consent to judicial review of immigration decisions. It's a public right, it's sovereign immunity. If you're wrongfully denied an immigration benefit, a right to come into this country, a right to asylum, you have no right to sue the government. Judicial review is entirely at the discretion of Congress. And if that's true, if you're if Congress doesn't have to create judicial review at all, then why would constitutional claims be exempt when Congress specifically says courts cannot review this? You're not entitled to any review. Anyway, Justice Thomas made this point. I think it's not reviewable. On the merits, though, uh, oh, you know, there's our whole question, but we're running out of time, so I won't I won't say too much about it. There's a whole question of whether the equal protection component, you know, the equal protection principle applies to the federal government at all. Why? Because the 14th Amendment is where equal protection clause is and it applies to the states. Did you know that, listeners? So uh Catherine's like, no, she's easing up. I didn't know, I didn't know. So what happened is in the desegregation decisions after Brown would be bored, the Supreme Court held that it would be crazy to allow the federal government to discriminate in schools. And so it reverse incorporated the equal protection clause of the 14th Amendment through the due process clause of the Fifth Amendment and says that due process clause of the Fifth Amendment creates this equality requirement at the federal level. Totally a historical, totally kind of crazy. There might be other arguments for why the federal government can't discriminate, um, but it's very, very uh tricky. Okay, having said that, on the merits, Catherine, you saw you saw the statements. You said so so so so to our listeners.

SPEAKER_00 43:23

Because the dissent doesn't really talk about this, right? The dissent is more focused on what Trump has said and whether or not he's a racist, right?

SPEAKER_02 43:30

Right, right. To be clear, everything I just said about reviewability and whether equal protection even binds the federal government was only in Justice Thomas's concurrence. But he's right. He's right about these things, which I think is super interesting. But to our listeners, the majority doesn't address that, the dissent doesn't address it. They assume the equal protection clause applies, they uh you know, assume the same sort of framework, and the question was whether Trump was motivated in part by race. And that gets a little bit juicy. So, Catherine, what do you think? You read the statements.

SPEAKER_00 44:01

Well, also, I love how Justice Thomas is like always on some side quests. Like, he's got these like things that he does on every single decision that are like his own little niche, like, yeah, side quests. Like, okay.

SPEAKER_01 44:12

Can I say something real quick to that, Kathleen? I, you know, back in this has kind of faded a little bit, but when Justice Thomas first came on the court, one of the ways in which uh liberals denigrated him was they said he doesn't have his own mind. The implication was he isn't smart enough to have his own views, he's just a follower, like a mini-me of Justice Scalia. And I look at the empirical record, and he has decades of writing these side quests, as you put it, you know, these like independent opinions with his own perspective. And I have known a ton of Justice Thomas Clerks, and it is not coming from them, I guarantee you. It's coming from him. He has this distinctive view of tons of legal issues, especially constitutional issues, and he's constantly writing these soul-authored concurrences to sort of express his perspective on the matter. And um it just shows how uh ludicrous that characterization of him as a scalia minimi always was.

SPEAKER_00 45:11

Yeah, yeah, absolutely. Well, so some of what the dissent um cited as being Trump's quotes that they claim showed that he was racially motivated in removing the TPS status. They quoted him saying, Haitians are eating the dogs, they're eating the cats, uh, they're they're eating the pets of the people that live in Springfield, Ohio. And Haitians are also eating other things that they're not supposed to be. And Haitians in the United States probably have AIDS. I missed that one.

SPEAKER_02 45:39

That's a bad one, but yeah, God.

SPEAKER_00 45:40

And Haiti is a shithole country, excuse me. Maybe we should leave that. Which, by the way, I think he maybe has since doubled down on this, but the original quote is very much up in the air. It's no one heard it on the record.

SPEAKER_02 45:53

No, no, remember, remember, Haiti is great, which is why it should be okay to send them back, right?

SPEAKER_00 45:59

Well, why would we keep them from their country that's so great? I think Greg Miller made that point yesterday.

SPEAKER_01 46:04

But all the liberals, but all the liberals are totally contradicting themselves. But okay, let's stick with this, because the things he said are pretty strong, and I I wanted to share some thoughts too, and I want to hear everybody else's.

SPEAKER_00 46:14

So he also says he calls Haiti a filthy, dirty, disgusting country, and Haitian immigration is like a death wish for our country. And the Haitians, along with some others, are quote, poisoning the blood of our country. Why is it that we should take people from S-hole countries like Haiti and Somalia? Why could we not take why can we not have some people from Norway and Sweden? The majority briefly replies that these remarks are not overtly racial, but it is hard to know what that means. Haitians are black, Norwegians and Swedes not so much. The references of filth, disease, and primitiveness are shot through with racial stereotypes and tropes. That is from the dissent.

SPEAKER_02 46:53

Yeah, Josh, you take it first, take it up.

SPEAKER_01 46:56

I think there's a hard question here. And the question is um, is it racism or is it any form of bigotry in the immigration context to be against a group? So set aside the very, very strong language that Trump uses. Is it acceptable under our uh both our law and cultural norms of equal protection uh to be against a group in immigration? So think about like Muslim immigration in Europe, right? It's totally transformed politics in Europe and everyday life in Europe. Every attempt to bar Muslim immigration in Europe, and there have been many, by the way, in all these countries have anti-immigration movements that are very fixated on uh on Islamic immigration specifically. Well, the elite classes denounce those efforts as Islamophobia, which is sort of an analogue to racism, and they're routinely struck down by European courts. So essentially Europe couldn't control its immigration because it wanted, like the conservatives wanted to stop Muslim immigration and they couldn't, and so Europe has been totally transformed by Muslim immigration. Uh and Syrian immigration specifically has led to quite a jump in crime. Is that the case in the USA too? I mean, can we say we have a problem with this religion and we want to bar members of this religion? Uh sometimes those those groups overlap with peoples, right? Or with races who are centered in countries. We live in a world of peoples in in, I mean, the the world of nation states is like the Spanish people are centered in Spain, the French people are centered in France. So, like, what if we say, um, what if our politicians want to say we have a problem with um this the particular uh uh species of Islam that's coming from Yemen, and we're gonna bar Yemenis. Uh, or we have a problem with an amalgamation of a culture with a people, with a religion, like Somali immigrants. We think that they are not assimilating well or that they're not in line with whatever, right? And sometimes, you know, politicians, people just see a country as a basket case, right? Like this is a terrible country. And when you have a terrible country, it's it's kind of Janice face. Because on the one hand, the people who are in that country are born into a into a problematic country, and you know, um, they're victims of it. Um, on the other hand, they're formed by that bad country, and you might worry about what they bring into. It's like it's like um the orphans in Romanian orphanages, right? Who are so deprived of basic like affection and support and love. And they're victims, it's not their fault, but they come out of that and they have problems, like psychological problems that make you like not want to adopt them or something like that. So it seems like from a immigration very sensibly involves one country saying, we don't want these people here. And it's it would be wonderful if we could do it on a purely individual basis all the time, but that's not realistic. We do it by group. We don't want these people coming to our country. But that comes perilously close to our ideas of what is wrongful bigotry or wrongful discrimination against a religion or against a race, or certainly national origin, it's literally national origin discrimination. So I wanted to present the question in that larger way. I think you know, Trump's strong language, um, I just think that's how politics works. People express, they used to express themselves back in the old days with you know utmost dignity, and that felt inauthentic, and now they express themselves really, really directly, and that feels crude, but that's the way modern politics has evolved. But the underlying issue is can we um oppose groups in the immigration context? So let me just throw the question open.

SPEAKER_02 50:50

So the way the majority handles this is they say if there was a race neutral reason, right? Again, all this even assumes the equal protection clause applies, which is unclear, but as long as there's a race neutral reason, uh then it's okay, then it's okay. It's the same thing about like disparate impact, right? It's not enough uh that uh, you know, African Americans are denied loans uh or at greater rates than white Americans or with worse terms, you know, as long as there's a race neutral reason for it, uh, such as income disparity, the likelihood of repaying back the loan and so on. And and disparate impact has been very insidious, it's the same thing here. It'd be one thing if they say we don't want immigration from black people or from any country that's black. But if what they are saying is actually Haiti has all of these problems, which it does, by the way, okay, for a number of historical reasons, and they happen to be black, that's not enough. And what the Supreme Court basically said is that there is a race neutral reason here, which is Trump doesn't want any TPS, he wants them all to end, and that's race neutral. Uh and we you know we have a diversity actually of countries, none of them white, but you know, it isn't white versus non-white, right? Uh there are Asian countries, there are Middle Eastern countries, there are African countries, there are Caribbean countries, uh, and so the so that that's that was enough uh for the Supreme Court. On your larger philosophical question, Josh, you know, uh on Muslim immigration in the United States, suppose there was a view in Europe, suppose uh this came to a point or we didn't want it to come to a point where the in in America where this would be a significant problem. Could we just say we think uh you know uh Islam uh has dangerous ideas, uh uh and therefore uh we're not stopping anybody coming in because they're from certain countries, but we do think like the Muslim ban, which wasn't really a Muslim ban, suppose Trump imposed it. Okay, rationally based listeners, you were getting a real deep, challenging discussion here. What if Trump had done a Muslim ban? Okay, now he didn't say Muslim ban, he said people who believe X, Y, or Z and therefore are likely to engage in certain kinds of conduct, you know, that we think is threatening to the United States. Now the right to exercise a religion and to believe in certain things is protected uh by the First Amendment. Again, unclear if it would even apply to immigration decisions, okay. Um, would that be problematic? Uh I don't know. Uh I don't know. Um my sense is uh as long as there is a uh uh a religious neutral reason based in conduct, and it just turns out that Muslim believers uh are more likely to engage in that dangerous conduct, you know, whatever it is, um, then I think that's a plausible way that you could constitutionally impose something like a Muslim ban, but it's tricky under modern, you know, First Amendment free exercise doctrine, assuming it applies to immigration decisions. I don't know, that's my instinct.

SPEAKER_00 53:57

Just because they're Muslim, I mean, even though they chant death to America means we have to let them come into our country. I I don't know if I believe that. I mean, and isn't it different when it comes to immigration and when we're already when you're already in the country and you are an American? I mean, how we treat Americans is one thing. Isn't it different how we treat people coming into the country? Can't we say, I'm sorry, but Islam is fundamentally incompatible with our, you know, American ideals. And so we don't want those people coming into the country. But once you're here, if you're here and you're an American, you can practice what you want. Are are those things different legally? To me, they seem different, but legally are they?

SPEAKER_02 54:34

It is it is not settled whether the equal protection and the first amendment and the free exercise of religion uh apply to immigration decisions, right? It is not settled.

SPEAKER_01 54:45

So I think literally writing down the word unsettled when Elon said not settled, because it it's like it's like, okay, if someone um is um let's say they're here on a student visa and they're applying for citizenship, and it turns out that on X they're posting, you know, death to America, kill the Jews, you know, whatever. Um, do they have First Amendment protections? What if they're not here? We're evaluating whether to give them a student visa, and State Department officials look at their ex account and see that stuff and deny is that a violation of the First Amendment? And the answer is our our It better not be. Well, our legal community has not figured this out yet.

SPEAKER_00 55:29

And some of it's the legal community is suicidal. What do you think?

SPEAKER_02 55:33

Well, well, hold on, okay, hold on, hold on. So the First Amendment thing I think is easier, and we talked about it in the context of unconstitutional conditions and the Marco Rubio student visa revocations. I think your question is a bit harder because what or at least the question I thought you were asking, right?

SPEAKER_01 55:46

Because if you define for the First Amendment, yeah.

SPEAKER_02 55:49

If it turns out that 10% of Muslims say death to America, do we have to say and impose a burden on us to figure out which of them say death to America? Or is it enough to say there's something about the Islamic religion or these particular branches of the Islamic religion that we are going to presume a substantial number of people believe it? And as a rule of thumb, we're going to exclude them. Again, assuming these constitutional principles that are applicable in America apply to these decisions about letting people in, which is I don't I don't think it they do, by the way. Um, but if that's not settled, even if they did apply, like would that be wrong to just say we need rules of thumb because we cannot impose this burden to figure out and read the minds of every individual person who was raised and educated in this particular Islamic version of the Islamic faith that leads to these views that are detrimental to America? I don't know. I don't know. I think it's a tough question. I'm inclined to think it would be okay, but I don't I don't know, Lily.

SPEAKER_01 56:50

I think it's a tough question. Um I I tend to think that that constitutional rights in general do not apply to um uh immigration decisions and shouldn't apply to immigration decisions. Uh that those decisions necessarily involve group, not I mean mass scale rather than individuated determinations. You just can't do it otherwise. You can't process 9 billion people or whatever the world population is right now. And so inevitably you're saying nobody from here, nobody with these broad characteristics, nobody with those broad characteristics. And you can't do an individualized determination in general. There are exceptions, but in general. And when you're making broad determinations, I think you have to be able to take into account, you know, sort of group characteristics, uh uh statistical characteristics, things that are incident to religion or to culture or to peoplehood, and say, you know, we think that there's too much immigration from, I don't know, it could be the Ukraine, right? We think there's too much immigration uh from the Ukraine because of all the gang activity in America from Ukrainian immigrants or all the fraud activity from Somali immigrants today. It used to be Ukrainians, by the way. Uh and I think, I mean, some people will denounce that as bigoted or nativist, but I just don't think there's any other way to administer a border. And these kinds of group generalizations are pernicious when they're applied to the individuals who have membership in the American community, but they're necessary when applied to deciding who should have membership in the American community. Tough question.

SPEAKER_02 58:28

Very, very well said. We have 10 more minutes. Uh, we're let's talk about the gun case. Catherine set that up, and then I want two minutes for our chaser that we promised our listeners.

SPEAKER_00 58:37

All right, Wolford versus Hawaii. This is the gun case. Also the decision written by Alito. Basically, Hawaii law prohibited the carrying of guns on private premises open to the public unless the owner affirmatively consented. So this applied to like a wide swath of everyday activity, grocery stores, gas stations, that kind of thing, and would make it very difficult to carry guns in public. Um, so just to read directly from the Second Amendment, it says a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

SPEAKER_02 59:14

Now, we should do a deep dive probably into the second amendment here at some point, but a quick And when we do, when we do, we will have on Joshua's colleague, Robert Leiter, who is an expert and very based on the Second Amendment at George Mason. Now, is he the head of ATF or general counsel at ATF?

SPEAKER_01 59:32

He's the general counsel at the ATF, Alcohol, Tobacco, and Firearms Institute. So he will not come on our podcast, I'm quite sure, unless he's making an official statement that's been approved by the Justice Department. He has the same job at ATF that I used to have at Ed.

SPEAKER_02 59:46

And uh and um But he's based, and we'll we'll have him on when he leaves the administration, and that's what we'll do how we're gonna do it.

SPEAKER_01 59:53

He's probably the country's greatest firearms and law expert.

SPEAKER_00 59:57

Wow.

SPEAKER_01 59:58

Okay, Catherine, continue. Sorry.

SPEAKER_00 59:59

So in 20, uh, excuse me, in 2008, DC versus Heller, um, that is the case that the right includes keeping a gun for self-defense in the home. Then we get to 2010, City of Chicago versus McDonald. The court applied this right to the states as well. So the states have to observe the Second Amendment. Then more recently, the one that I remember is the case called Bruin. Um, the court invalidated a New York state law that created this very vague licensing scheme that effectively prevented most law-abiding citizens from actually being able to own guns. And in the Bruin decision, the Supreme Court created a new test for Second Amendment questions that was if the law in question literally prevents people from keeping or bearing arms, then such a restriction can only be justified if the government shows that there was a history and tradition of such firearms regulations. So the regulations don't need to be exact twins, but they need to be analogous. So here there was no such analogous regulations. So the law was declared unconstitutional. All right, you guys take it.

SPEAKER_01 1:01:05

Josh, you forgot. I just want to point out how clever this is if you're an anti-gun kind of liberal activist. I mean, I yeah, I don't agree with what Hawaii did here, but I have to admire just the gamesmanship of it. So here's here's why the what the Hawaii, here's what the Hawaii lawyers said. They said, okay, the court, the Supreme Court told us we can't ban guns, and we can't even ban carrying guns for self-defense. But we hate guns, so what are we gonna do? Ah, well, property owners, business owners, have a right to control bringing guns onto their property. So let's just make the default that if you're carrying a gun, you have to ask permission to carry the gun onto their property. And then you can't go into any privately owned business. You can't go into a gas station, you can't go into a supermarket if you're carrying a gun. And that is basically the end of carrying firearms, and it builds on a reasonable uh cultural and legal foundation, namely people's right to control their own private property. That is so clever. It's like saying we hate wallets, but we can't, the Supreme Court has told us we can't ban wallets. So let's just say if you go onto someone's property with a wallet in your pocket, you have to ask permission. And then they can all ban it privately. In a way, it's a special case of this thing that we've seen of like taking all this um oppressive policy uh that the left likes but can't get through the government and running it through private corporations. So you can't, you know, you can't shut down conservative speech, that's fine. We'll just make sure you're fired from your law firm or your corporation. You can't, you know, um can't tweet shut down conservative speech on social media. That's fine. We'll just make sure the social media companies do it for us. It's just like outsourcing the oppression to the private sector.

SPEAKER_02 1:02:53

And you can see why they developed the Bruin test, why the Supreme Court developed the Bruin test. It's part and parcel of the same things. Not only were the states very creative, but liberal judges, after DC V. Heller and City of Chicago v. McDonald, you know, never found a restriction on guns that they didn't think satisfied, you know, rational basis scrutiny, intermediate scrutiny, means-end scrutiny, whatever tiers of judicial balancing, right, which you can do in the First Amendment. So lots of people criticize the court in Bruin for saying what, you know, so regulations have to be frozen in time, so there aren't these new problems with these new kinds of weapons. And you can understand why the Supreme Court's doing it, right? First, they say, look, we're not saying you need an exact historical uh twin, but you need to show analogous regulations to show a tradition that these kinds of regulations, like the how and the why of these regulations, uh, were uh approved in the past. Because if we don't have that as the test, no liberal judge will ever find you know that a restriction violates the Second Amendment, right? No states will be able to cleverly come up with ways to get around the Second Amendment. And you can see that Bruin was a message, you know, to lower courts. Uh and so um, I I think historically it seems relatively sound. Um, but anyway, to close out sort of the merits of this decision, uh so as Catherine said, they needed analogous regulations. They didn't really have any. They had some laws from the 1700s that prohibited carrying guns on people's property for the purpose of hunting and poaching on their property and interfering with their right to sort of wildlife, and also they were trampling crops, and there was just people were drunk and hunting on people's land, and they say you can't do that. Not really analogous uh to this situation where there isn't this, you know, um, history of people just like whipping out firearms and shooting at gas tanks at gas stations, right? It's it's just clearly was intended, as Josh said, uh, to subvert the right rather than as like solving some legitimate problem that the 1700s uh laws uh were trying to solve.

SPEAKER_00 1:04:50

And so they did argue, Elon, that having guns was not in the spirit of aloha. Um, was that because they were trying to fit into the Bruin test? Like, what is that about?

SPEAKER_02 1:05:01

Uh yeah, well, so they were some other regulations that they relied on were like 1840s regulations from or 1830s regulations from the king of Hawaii, which basically disarmed the citizenry. Uh there was one account that I really like on X that said, wait a minute, this was so the king could keep his serfs under control. I don't know if that's true. I did a little research about that because uh, you know, that there was like a problem of sailors uh coming in and they were engaging in brawls and everything, but like it I don't know. So uh they they did rely on the black codes, uh disarming blacks, uh, which is like uh not the best thing uh you want to rely upon. But the point is they tried to suggest that, well, it's consistent with a Hawaii's regulatory culture, and the Supreme Court slapped it down and said, uh again, in Holido decision, when you become part of the United States, the constitution applies to you like it applies to any other state. And uh the the constitution, you know, is not defeasable by the spirit of aloha any more than it's defeasible by the spirit of the windy city or the big apple, whatever those. Spirits happen to be. And I I think it's right. I think it's right. And uh yeah, so so pretty straightforward. Okay, we're running out of time. Can I do my chaser? One last case.

SPEAKER_00 1:06:11

We have the shot. Give us the chaser, Elon.

SPEAKER_02 1:06:15

Um, okay. There was a case decided last week, I believe, or maybe it was earlier this week. I can't even remember anymore, which had to do with whether uh Congress has waived sovereign immunity uh for Cuba uh and authorized ExxonMobil uh to sue Cuba uh over having uh Fidel Castro having expropriated and seized Exxon's oil facilities and operations in 1960 after the communist uh revolution there. And what I find so fascinating about this, okay, and I will give you the legal argument briefly because I know we're running out of uh time here, but liberals hate sovereign immunity. They believe that people should have a right to sue, especially the state and the federal governments, okay, and to remedy their rights. So they normally hate sovereign immunity, and they want to find that you know Congress can abrogate sovereign immunity and that sovereign immunity has been waived all the time. But here the liberals were in dissent. And so I'm here thinking, what is it about communist regimes expropriating private property versus an oil company that makes the liberals side with the freaking communist regime? Right? I mean, is it politics all the way down? Now, okay, look, in two minutes, what is the legal uh question here? The legal question is that the Foreign Sovereign Immunities Act has it grants sovereign immunity to foreign sovereigns unless you fit an exception. And there are two exceptions that deal with commercial activities or expropriated property that don't seem to fit for whatever reason, because they have to be engaged in like commerce in the United States, which is Cuba is not. So Exxon could not rely on these waivers of sovereign immunity. Well, what happened was in 1996, Congress passed another law. This was after Cuba shot down some private airplanes in international airspace, leading to a few uh handful of American deaths. There was outrage. Congress allowed anybody whose property was seized or expropriated by the Cuban regime to sue, it created a cause of action to sue any entity, right, or person, uh I should say, trafficking in their goods for the value, right, uh, of the goods that they are trafficking in. Again, it was expropriated. And the statute defines person to be any government entity or agency or instrumentality. So you have a statute that seems to add a new exception to the sovereign immunity act, right? By saying if you had your property expropriated, you can bring a lawsuit against anybody trafficking in that, including a government entity. Doesn't that waive sovereign immunity? Isn't this an additional exception? And the six conservatives said yes, Congress has added to the Foreign Sovereign Immunities Act added an exception that allows ExxonMobil to sue in this uh in this case. The three liberals said, well, look, giving a right to sue a cause of action isn't the same thing as waiving immunity. And that's true, causes of action are one thing. Whether you could bring in a sovereign as a defendant under your particular cause of action is a separate question. But here the law specifically says you can bring suits for these purposes against any person, meaning any government entity or agency. That sounds to me like a waiver of sovereign immunity. But for whatever reason, the liberals wanted to side with the communist regimes uh controlling and seizing the means of production. Surprise, surprise.

SPEAKER_01 1:09:38

It does start to seem like all these cases, Catherine brought this up earlier that uh, you know, it's it's like, why isn't this an easy case? And and we argued about that one, but it's like every case becomes political somehow. The the 6-3 division, liberal versus conservative, just seems like in the most unexpected places and ways to sort of define different different sides. And it's um if you're really committed to the law as something separate from politics, what you know in law school we call the law politics distinction, these are sad times.

SPEAKER_02 1:10:12

And on that note of cynicism and sadness. Thank you for listening. We'll be back with more SCOTUS updates next week. Trumpy slaughter, the administrative state, birthright citizenship. As always, please hit that like and subscribe button. Follow us on Substack, rationally based at substack.com. See you next time.