Latest / rationally BASED / Episode 17 | Mandatory Detention Percolation

Transcript

Episode 17 | Mandatory Detention Percolation · rationally BASED

• 0:00
  SPEAKER_00: Welcome back to Rationally Based, a podcast about law politics on the edge.
• 0:04
  SPEAKER_00: Catherine, what's on deck?
• 0:06
  SPEAKER_02: Well, first, a brief discussion of the Virginia redistricting decision and the Democrats' appeal to the U.S.
• 0:11
  SPEAKER_02: Supreme Court.
• 0:12
  SPEAKER_02: And second, we'll take a deep dive into the important circuit split on the question of mandatory detention of illegal aliens.
• 0:18
  SPEAKER_02: Today we'll get a little technical, probably for me in particular, but it's worthwhile to understand these issues.
• 0:25
  SPEAKER_00: Let's dive in.
• 0:39
  SPEAKER_00: I'm your host, Elon Werman, a law professor at the University of Minnesota Law School.
• 0:43
  SPEAKER_02: And I'm Catherine Johnson with Center of the American Experiment.
• 0:47
  SPEAKER_00: Don't forget to hit that like and subscribe button.
• 0:50
  SPEAKER_00: As always, we give some sneak peeks on our Substack, rationally based.substack.com.
• 0:55
  SPEAKER_00: And of course, we always appreciate those ratings this early in the podcast experience.
• 1:01
  SPEAKER_00: Thank you for our several hundred listeners every week.
• 1:04
  SPEAKER_00: Okay, Catherine, where should we start?
• 1:08
  SPEAKER_02: Well, you're missing something important, Elon.
• 1:10
  SPEAKER_02: Isn't your book coming out next week?
• 1:13
  SPEAKER_00: Okay, maybe.
• 1:15
  SPEAKER_00: I don't actually know, but it's it's it's a real enough possibility that I think people should uh pre-order it.
• 1:21
  SPEAKER_00: Uh so my book, The Constitution of 1789, a new introduction, uh, is supposed to come out on time for the semi-quincentennial, for the 250-year celebration of American independence.
• 1:36
  SPEAKER_00: And uh then it uh, you know, because I'm so efficient, I got all my proofs back uh to the publisher in an efficient time.
• 1:42
  SPEAKER_00: And then they said, okay, we'll be ready in June.
• 1:45
  SPEAKER_00: And now they're like, oh, maybe it'll come out next week in May.
• 1:47
  SPEAKER_00: I'm like, oh, okay, I haven't even like teed this up for my podcast audience and everybody.
• 1:52
  SPEAKER_00: But um, I'd really love um if you would uh pre-order, I have no illusions that this will be on the New York Times bestseller list or anything like that.
• 2:01
  SPEAKER_00: Um, but uh if you go, so again, it's the Constitution of 1789, a new introduction.
• 2:08
  SPEAKER_00: And you can, I think if you go to Cambridge University, uh the Cambridge Um University Press website directly, Cambridge.org, you can actually use the code Wormin.
• 2:18
  SPEAKER_00: So just my last name, W-U-R-M-A-N 2626, or I guess the year 2026, so wormin26, and you can get a 20% discount.
• 2:26
  SPEAKER_00: And I just I'm Catherine's gonna read the book when it comes out, and then she will interview me, right, uh, on this podcast, or we'll have a longer discussion about it.
• 2:36
  SPEAKER_00: But basically, um, if you're a law student listening to us or a lawyer listening to us, I know we have lots of college students as well, uh, and you've never set eyes on a conservative, textualist, originalist, formalist law professor uh who taught about the constitution, um, then uh this book is for you.
• 2:57
  SPEAKER_00: It goes through kind of everything about the constitution's structure.
• 3:01
  SPEAKER_00: So it's called 1789.
• 3:03
  SPEAKER_00: It doesn't talk about the Bill of Rights, right?
• 3:04
  SPEAKER_00: The Bill of Rights was added to the Constitution in 1791.
• 3:09
  SPEAKER_00: Um, and so this is all about constitutional structure, separation of powers.
• 3:14
  SPEAKER_00: It starts with the American Revolution, why we have written constitutions in the first place, the compound nature of the American Republic.
• 3:21
  SPEAKER_00: We talk about legislative power, we talk about executive power, how the framers envision the presidency.
• 3:27
  SPEAKER_00: We talk about foreign affairs and war, we talk about judicial power, the constitution and slavery, and then, of course, sort of federalism topics.
• 3:36
  SPEAKER_00: So uh that that is what the book uh is going to be about.
• 3:39
  SPEAKER_00: It's gonna be super fun and super exciting.
• 3:42
  SPEAKER_00: So go to Cambridge or Amazon.
• 3:43
  SPEAKER_00: Again, the Constitution of 1789, a new introduction.
• 3:47
  SPEAKER_00: Catherine, are you excited to read it?
• 3:49
  SPEAKER_02: I can't wait.
• 3:51
  SPEAKER_02: I mean that seriously.
• 3:52
  SPEAKER_02: I mean, the more that we've talked about um kind of historical precedent on this podcast, like everything that we talk about that I'm like, wow, that we have this current, crazy, current day, crazy issue.
• 4:03
  SPEAKER_02: One of the things you've taught me, Elon, is that probably this has happened in the past.
• 4:07
  SPEAKER_02: Not everything is so just like, you know, so brand new.
• 4:11
  SPEAKER_02: Um so whenever I get to hear about um uh history from a conservative perspective in particular, I think it has always helped inform my perspective on current day issues.
• 4:21
  SPEAKER_02: So for me, I love that.
• 4:22
  SPEAKER_02: And I can't wait to read it.
• 4:24
  SPEAKER_00: Well, thank you.
• 4:25
  SPEAKER_00: So everyone, check it out.
• 4:26
  SPEAKER_00: But okay, let's get to more pressing issues of the day.
• 4:30
  SPEAKER_00: So fast forward 220, 230, 40 years, and um, we have what, Virginia redistricting?
• 4:38
  SPEAKER_00: Is that what we should start with?
• 4:40
  SPEAKER_02: Kind of as an update to last week's episode, the VRA episode.
• 4:44
  SPEAKER_02: Um, more has happened, of course, in Virginia.
• 4:47
  SPEAKER_02: The state Supreme Court ruled the redistricting effort unconstitutional last week after voting had concluded.
• 4:54
  SPEAKER_02: So all these people had voted, and uh the Democrats had spent more than$80 million, I believe, um, on this campaign.
• 5:02
  SPEAKER_02: So obviously everyone is, I think, a little surprised by this.
• 5:06
  SPEAKER_02: At least I was when I heard it.
• 5:08
  SPEAKER_02: Now that I've gone through the issue a little bit, it seems like the Democrats clearly took a huge gamble uh in doing this.
• 5:14
  SPEAKER_02: But here is uh my first question for you, Elon.
• 5:17
  SPEAKER_02: Everyone's saying that they are going to try and bring this to the Supreme Court.
• 5:20
  SPEAKER_02: They want the Supreme Court to take up this case.
• 5:23
  SPEAKER_02: Is that realistic?
• 5:26
  SPEAKER_00: No.
• 5:26
  SPEAKER_00: So this is like good Constitution 101.
• 5:30
  SPEAKER_00: The federal power, the federal judicial power that is vested in the federal courts only extends to certain types of cases.
• 5:39
  SPEAKER_00: It extends only to cases arising under the Constitution, the laws of the United States, right?
• 5:46
  SPEAKER_00: Those enacted by Congress, or the treaties of the United States.
• 5:51
  SPEAKER_00: It also extends to cases affecting ambassadors, which sounds kind of obvious.
• 5:56
  SPEAKER_00: It extends to admiralty cases, which are like cases on the high seas, right?
• 6:00
  SPEAKER_00: I mean, what individual state is going to be responsible for things that happen on the high seas?
• 6:05
  SPEAKER_00: It also, of course, extends to certain kinds of cases involving particular parties, Catherine.
• 6:10
  SPEAKER_00: So like it could involve state issues, but usually you would need a citizen of one state suing a citizen of another state, or you would need a state suing another state or a state suing a citizen of another state.
• 6:22
  SPEAKER_02: Well, someone might cross someone crossing state lines, isn't that always how like the feds get involved in a criminal matter?
• 6:28
  SPEAKER_02: Like someone did a crime, but they happen to go across state lines when they did it.
• 6:32
  SPEAKER_00: Exactly.
• 6:33
  SPEAKER_00: It's called, it's called this, that's exactly right.
• 6:35
  SPEAKER_00: It's called this interstate commerce nexus.
• 6:37
  SPEAKER_00: So most federal crimes, I mean, some federal crimes, you know, okay, like bribing a federal judge, right?
• 6:41
  SPEAKER_00: That can be in a particular state, right?
• 6:44
  SPEAKER_00: Um, but most federal crimes are actually within Congress's power today because of the commerce clause.
• 6:48
  SPEAKER_00: And so they say, well, if you went across state lines to do something, then it can become a federal crime because there's some connection to interstate commerce.
• 6:55
  SPEAKER_00: I'm actually dubious about all of that.
• 6:57
  SPEAKER_00: Like um, I think Congress's jurisdiction over crimes has been way too extended, just part of our general overextension of the commerce clause generally.
• 7:07
  SPEAKER_00: But for purposes here, there's no connection to federal law.
• 7:12
  SPEAKER_00: Is there, Catherine, in the redistricting case?
• 7:14
  SPEAKER_00: Like as far as what you've been able uh to determine?
• 7:18
  SPEAKER_02: I don't think so.
• 7:19
  SPEAKER_02: It seems like um the one issue that was interesting to me, they seem to be referring to the Supreme Court's um definition of election day, which was very confusing because they're making almost a conservative argument of like the election has not happened because only election day is when the election takes place, right?
• 7:41
  SPEAKER_02: And the issue here is that um they were waiting, they had to wait, uh the state of Virginia had to wait until after an election happened to propose this amendment, constitutional amendment.
• 7:52
  SPEAKER_02: Well, they had put it on the ballot when there had already been all this early voting, or they had voted on it, excuse me, in the legislature, when there had already been all of this early voting that had taken place.
• 8:03
  SPEAKER_02: And so technically, not the whole election passed after that vote happened.
• 8:10
  unknown: Yeah.
• 8:11
  SPEAKER_00: Well, and what does any of that have to do with federal law?
• 8:13
  SPEAKER_00: Which of course is a question because they're now trying to appeal it to the to the United States Supreme Court, as you mentioned.
• 8:18
  SPEAKER_00: So let's back up and just give a brief description of the Virginia constitutional question here.
• 8:25
  SPEAKER_00: Okay.
• 8:26
  SPEAKER_00: The Virginia Constitution prohibits, you know, gerrymandered maps.
• 8:30
  SPEAKER_00: And so to get uh the mid-decade redistricting that the Democrats wanted, this really insane sort of redistricting, they had to pass a constitutional amendment or send a constitutional amendment to the voters.
• 8:44
  SPEAKER_00: Well, the Virginia Constitution that requires an amendment, again, because the constitution of the state prohibits that.
• 8:51
  SPEAKER_00: So you need to amend the constitution.
• 8:52
  SPEAKER_00: So how does the Virginia Constitution provide for its own amendment?
• 8:56
  SPEAKER_00: Well, it actually has kind of a brilliant process.
• 8:59
  SPEAKER_00: There must be an intervening election.
• 9:01
  SPEAKER_00: So what this means is that the Virginia legislature can propose uh through majority votes, right, in the in the two chambers, a constitutional amendment.
• 9:10
  SPEAKER_00: So they could propose the maps as a constitutional amendment.
• 9:13
  SPEAKER_00: But then they have to wait until after the next general election.
• 9:19
  SPEAKER_02: Because you you have to be able to vote on, you know, if people are for or against the constitutional amendment, is the explanation I heard, which totally makes sense.
• 9:27
  SPEAKER_00: Yeah, it it's a great idea, actually, as a general matter, right?
• 9:32
  SPEAKER_00: You want um constitutional amendments to have long-term buy-in.
• 9:35
  SPEAKER_00: You don't want constitutional amendments to be created through fits of partisan passion, which isn't that what we have here in Virginia, a fit of partisan passion.
• 9:45
  SPEAKER_02: Yeah, that's exactly how I would describe it, actually.
• 9:48
  SPEAKER_00: And so the whole point is okay, you can propose your partisan gerrymander as a constitutional amendment, and then you must wait until after the next general election so that the people can have a chance to elect pe uh legislators who are for or against this partisan thing or other constitutional amendment.
• 10:05
  SPEAKER_00: And then the legislature has to repass the same thing, right, before it is sent to the voters uh in a referendum.
• 10:13
  SPEAKER_00: So the question here under state law is um did was there an intervening general election or not?
• 10:23
  SPEAKER_00: Why is this a question?
• 10:25
  SPEAKER_00: Because the Democrats um uh passed on party line vote, right, uh the proposal to amend the constitution to allow this mid-district partisan uh redistricting on October 30th of last year.
• 10:39
  SPEAKER_00: And the general election was already going on, right?
• 10:45
  SPEAKER_00: And so early voting had already started, and um 40% or so of the ballots ultimately cast had already been cast, right?
• 10:54
  SPEAKER_00: So you can see it it clearly undermines the spirit of the amendment process under the state constitution.
• 11:02
  SPEAKER_00: And so I guess what the uh Democrats argued was that, well, when it says next general election, that means November 4 or November 5.
• 11:12
  SPEAKER_00: And so um until election day, until the end of election day, the general election has not happened yet.
• 11:20
  SPEAKER_00: And so what they want to argue is there was an intervening general election, which happened on election day.
• 11:27
  SPEAKER_02: And what the Supreme Court of the state is isn't that the conservative uh that's a conservative argument, right?
• 11:32
  SPEAKER_02: We literally just had an episode on this.
• 11:34
  SPEAKER_00: Yes, that's exactly right.
• 11:36
  SPEAKER_00: So the Virginia Supreme Court, what they do is they rely on a bunch of cases that say an election.
• 11:43
  SPEAKER_00: There'll be a lot of that, by the way, Catherine, today, a lot of turning 180 degrees like on things when it uh favors people.
• 11:49
  SPEAKER_00: Uh, but the the Supreme Court of Virginia in a fourth-three decision basically said, look, the the word election, okay, uh, means the whole process of the election and starts at least when early voting starts.
• 12:02
  SPEAKER_00: As soon as the first ballot is cast, the election has started.
• 12:06
  SPEAKER_00: Uh, and now, as you say, it's the Democrats saying, well, no, an election is just one day, which is like exactly the argument that Mississippi, that the Republican National Committee was making against Mississippi's late ballot receipt.
• 12:22
  SPEAKER_00: Yeah.
• 12:22
  SPEAKER_00: Remember when we talked about that episode?
• 12:24
  SPEAKER_00: And plus, I thought, you know, Democrats liked elections being long, but now, oh, when it's convenient, it's election day, as you point out, Catherine.
• 12:32
  SPEAKER_02: Well, I love them getting bit in the butt by their own insane uh early voting laws that are, I mean, so out of hand.
• 12:39
  SPEAKER_02: They're crazy how early you can vote now.
• 12:42
  SPEAKER_02: Um, but I love that coming back to haunt them.
• 12:44
  SPEAKER_02: I think that's great.
• 12:46
  SPEAKER_00: And so there's still this question, of course, of okay, but what does this have to do with federal law?
• 12:50
  SPEAKER_00: Like again, it they were sort of interpreting the state constitution as a matter of state law.
• 12:55
  SPEAKER_00: What does this have to do with federal law?
• 12:57
  SPEAKER_00: Because remember, to appeal to the Supreme Court of the United States, you need some sort of federal issue.
• 13:03
  SPEAKER_00: The case has to arise under federal law in some way.
• 13:06
  SPEAKER_00: Well, obviously, this case arises under state law.
• 13:08
  SPEAKER_00: It arises under the state constitution, so that's super awkward.
• 13:12
  SPEAKER_00: And so what they're saying, what the Democrats are saying is well, the majority on the Supreme Court interpreted election based on federal law, based on various federal cases that interpret election in the federal context to be sort of the whole process, right?
• 13:31
  SPEAKER_00: And what they're saying is, well, they've got the as a matter of federal law, they got it wrong, because actually, under federal law, and the election is only one day.
• 13:40
  SPEAKER_00: It's election day, doing exactly Catherine, what you say, the argument of the RNC, right?
• 13:46
  SPEAKER_00: In in in the other case.
• 13:48
  SPEAKER_00: Um, but the whole silly thing about this is um the Virginia Constitution doesn't say election day.
• 13:58
  SPEAKER_00: It doesn't say after the next general election day.
• 14:03
  SPEAKER_00: It says after the next general election.
• 14:05
  SPEAKER_00: So all that stuff about federal law, about there being an election day, is irrelevant under the Virginia Constitution.
• 14:12
  SPEAKER_00: So there's just like no federal equestrian here, which I just think is absolutely uh hilarious.
• 14:19
  SPEAKER_02: So there's no way you think the Supreme Court will take this up.
• 14:24
  SPEAKER_00: Uh I I mean, okay.
• 14:28
  SPEAKER_00: I I would be shocked if there weren't nine votes to say this is ridiculous.
• 14:32
  SPEAKER_00: If it comes back 6'3, that would be very embarrassing, I think, for the liberal justices.
• 14:39
  SPEAKER_00: Like, surely they can even realize that there is a want of a federal question here.
• 14:43
  SPEAKER_00: Surely they are not so partisan to think we need to intervene to get the and plus, why would the liberals actually hear the case?
• 14:52
  SPEAKER_00: Because why would the liberal justices vote to hear the case, Catherine, knowing that the six conservatives are not gonna like agree?
• 14:59
  SPEAKER_00: Like that's that seems silly.
• 15:00
  SPEAKER_00: So I think it would be 9-0.
• 15:02
  SPEAKER_00: There is one other potential federal ground, which is again a total 180.
• 15:10
  SPEAKER_00: Uh, this is something called the independent state legislature doctrine.
• 15:15
  SPEAKER_00: What is the independent state legislature doctrine?
• 15:18
  SPEAKER_00: I know Catherine said like today will be very technical, so uh please uh forgive us the audience.
• 15:25
  SPEAKER_00: Uh her face is already you're looking tired.
• 15:28
  SPEAKER_00: No, I'm just kidding.
• 15:30
  SPEAKER_00: Um have some more coffee, Catherine.
• 15:32
  SPEAKER_00: There we go, right as she takes a sip uh of her coffee.
• 15:36
  SPEAKER_00: Um so the independent state legislature doctrine comes from Article 4, Article 1, Section 4 of the Constitution, which Catherine we've talked about before.
• 15:47
  SPEAKER_00: It says that the state legislatures determine the time, place, and manner of conducting elections.
• 15:55
  SPEAKER_00: And the so-called independent state legislature doctrine basically says that state constitutions can't limit how the state legislature chooses to do that because its power to run elections comes from the constitution.
• 16:11
  SPEAKER_00: What's the problem here?
• 16:12
  SPEAKER_00: The problem here is it's the Republicans who made this argument three years ago, and the Democrats who went apoplectic, and the Supreme Court agreed with the Democrats and said, no, the state legislature gets to draw maps, that's true, but nothing prevents the state legislature from being limited and bound by its own constitution, right?
• 16:35
  SPEAKER_00: In other words, if the state constitution said you can draw maps, but you can't partisan gerrymander, well, you know, you're still drawing the maps, you just have to abide by the state constitution.
• 16:44
  SPEAKER_01: Sure.
• 16:45
  SPEAKER_00: And um which which I think I think makes sense.
• 16:47
  SPEAKER_00: I think makes sense.
• 16:48
  SPEAKER_00: Uh the Supreme Court did leave a sort of escape hatch.
• 16:53
  SPEAKER_00: So all this, by the way, came in a case called Morvey Harper in 2023, where the North Carolina Republicans tried to jam through a Republican gerrymander where their state constitution says you can't partisan gerrymander.
• 17:06
  SPEAKER_00: And so it was struck down by the state Supreme Court.
• 17:08
  SPEAKER_00: And then they said, Oh, the state Supreme Court is redrawing our maps for us.
• 17:11
  SPEAKER_00: You can't do that.
• 17:12
  SPEAKER_00: You know, it's the state legislatures that draw the map.
• 17:14
  SPEAKER_00: And the Supreme Court said, You can be the state, the the the courts can't draw the map, but it can say you did not follow your own constitution, right?
• 17:22
  SPEAKER_00: In drawing the maps.
• 17:24
  SPEAKER_00: And um what this US Supreme Court, it had a little escape hatch, which it said, if the state court's ruling is so crazy and so untethered to its own constitution that it effectively is usurping the legislature's role, then that might be a federal question under Article 1, Section 4 of the Constitution, because again, it's the state legislature that has to draw the maps.
• 17:45
  SPEAKER_00: So I kid you not.
• 17:46
  SPEAKER_00: That's what Virginia's arguing as well.
• 17:48
  SPEAKER_00: Virginia here is the Democrats are arguing that the state constitution, the state court, got its own constitution so wrong that it is effectively usurping the power of uh the state legislature.
• 18:01
  SPEAKER_00: And of course, like I yeah, Ford III decision isn't so obviously wrong under the state constitution.
• 18:08
  SPEAKER_00: I mean, this whole thing, Catherine, is absolutely uh dead on arrival.
• 18:12
  SPEAKER_02: I love the idea though that they just recycle old, like, like no one really has morals when it comes down to it.
• 18:17
  SPEAKER_02: Like everyone is just a partisan actor.
• 18:19
  SPEAKER_02: I mean, that's that's often what I find out here.
• 18:22
  SPEAKER_02: And uh, I mean, it's just so funny to see them using the same arguments that, like you say, they went absolutely apoplectic over just a couple years ago, um, to their own advantage now.
• 18:33
  SPEAKER_02: You also had a tweet that I thought was really interesting.
• 18:37
  SPEAKER_02: You said, Virginia has come a long way since 1821, Cohen's v.
• 18:41
  SPEAKER_02: Virginia, when they argued the US Supreme Court had no authority to review a decision of the Virginia Supreme Court, even on a matter of federal law, to arguing that the court should intervene to review the state Supreme Court on a question of state law.
• 18:54
  SPEAKER_02: So what tell me about that tweet.
• 18:58
  SPEAKER_00: First of all, Catherine, usually you say something like fire, Elon.
• 19:01
  SPEAKER_00: Fire, great tweet.
• 19:03
  SPEAKER_02: Sorry.
• 19:03
  SPEAKER_02: Fire.
• 19:04
  SPEAKER_02: That's fire.
• 19:05
  SPEAKER_00: Thank you.
• 19:06
  SPEAKER_00: Thank you.
• 19:07
  SPEAKER_00: Um yeah, no, it's just it's just kind of funny because Virginia, 200 years ago, argued that the U.S.
• 19:15
  SPEAKER_00: Supreme Court had no right to review a state criminal proceeding, even if there was a federal defense, right?
• 19:21
  SPEAKER_00: Even if the defendant had a defense under federal law.
• 19:25
  SPEAKER_00: And uh so they went from 200 years ago saying, hey, US Supreme Court, you can't even review matters of state uh arising out of our state court system, even if there's a federal question, to 200 years later saying, actually, you could review not only that stuff, but even stuff that really is about state law, if I guess it's important enough to us and the state court didn't rule the way we wanted it to rule.
• 19:49
  SPEAKER_00: So again, kind of a 180, but you know, 200 years separating uh Virginia uh in this case.
• 19:57
  SPEAKER_02: Well, and of course, uh from a political perspective, the Democrats in Virginia are losing their minds.
• 20:04
  SPEAKER_02: Uh, my favorite thing to come out of this, I think, is the New York Times actually had this article that was so funny, citing some anonymous sources that were supposedly on this call with Virginia Democrats and Hakeem Jeffries and some higher-up leaders in the party.
• 20:20
  SPEAKER_02: And basically they floated some potential solutions to this whole debacle, like how are we gonna get out of this?
• 20:26
  SPEAKER_02: And one of the most harebrained, insane ideas was the Virginia Democrats will impose a mandatory retirement for Supreme Court justices of like 54 or something super young, so that all of the current justices would get wiped out and they could start over.
• 20:44
  SPEAKER_02: And by the way, at least one Virginia Democrat has publicly said he's on board with this idea.
• 20:49
  SPEAKER_02: Like, yes, I love it.
• 20:51
  SPEAKER_00: Only one?
• 20:53
  SPEAKER_02: At least one.
• 20:54
  SPEAKER_02: They cited a guy in the article, so I could look.
• 20:56
  SPEAKER_02: There might be more, but at least one.
• 20:58
  SPEAKER_02: I mean, to publicly be behind that though, that's pretty insane.
• 21:03
  SPEAKER_00: Uh I I just, I don't know.
• 21:04
  SPEAKER_00: Uh Abigail Spamberger, I would put nothing past her, right?
• 21:08
  SPEAKER_00: She is devious in calculating, right?
• 21:11
  SPEAKER_00: But I think um that look look at the I don't know what the Virginia Constitution actually says about this.
• 21:17
  SPEAKER_00: I I think they have lifetime tenure with mandatory, though the legislature is allowed to impose age limits, which by the way, is not clear that Congress can do that under the federal constitution.
• 21:30
  SPEAKER_00: Okay.
• 21:30
  SPEAKER_02: Because again, yeah, I think I've heard that a lot of states do that actually, and it's usually around like 70, age 70.
• 21:37
  SPEAKER_00: Correct.
• 21:38
  SPEAKER_00: But at the federal level, it's good behavior, right?
• 21:41
  SPEAKER_00: Uh, which means lifetime uh uh a tenure.
• 21:44
  SPEAKER_00: But many state constitutions allow it.
• 21:47
  SPEAKER_00: I did see uh, but clearly it would violate the spirit of the constitution, right?
• 21:51
  SPEAKER_00: I mean, Catherine, the whole point of lifetime tenure is that you know judges have to exercise their independent judgment, sort of independently.
• 22:00
  SPEAKER_00: Of partisan politics, independent of politics.
• 22:02
  SPEAKER_00: It's precisely for moments like this, where there's a fit of partisan passions in the political branches, that you want the Supreme Court justices to be neutral, apolitical, independent.
• 22:12
  SPEAKER_00: And so if you could just abolish the court, like could the Democrats in the state legislature in Virginia abolish the Supreme Court and then the next day re-establish a Supreme Court with like empty seats?
• 22:25
  SPEAKER_00: Could they do that?
• 22:26
  SPEAKER_00: Which is effectively what they want to do by lowering the retirement age.
• 22:30
  SPEAKER_00: I did see a great tweet, by the way, I can't remember from whom, where there would be uh a constitutional question uh uh under the state constitution whether that maneuver would actually be constitutional, because the state constitution says about mandatory uh retirement, uh, that uh something along the lines of when the said justices shall reach the age of, which implies that the retirement limit is done in advance, and then they have to retire when they reach the age.
• 23:03
  SPEAKER_00: But if they lower it to 54, all of these justices will have long ago reached the age, right?
• 23:08
  SPEAKER_00: So they're already that age, they haven't reached it, they already are that age.
• 23:12
  SPEAKER_00: And so is this a way to get around this maneuver, you know, if they really did it.
• 23:16
  SPEAKER_00: But again, it shows you it's all about raw partisan politics, right?
• 23:20
  SPEAKER_00: Which isn't isn't that your takeaway?
• 23:22
  SPEAKER_02: Yeah, I mean, that's my takeaway most of the time.
• 23:24
  SPEAKER_02: And that's not always a bad thing, would be my other take.
• 23:26
  SPEAKER_02: Like I think that uh, you know, sometimes for the good of society, there are there are partisan, partisan goals that um we should try to accomplish.
• 23:36
  SPEAKER_02: Uh, I don't really think that, you know, a lot of times I'd say like Republicans maybe should get ahead of this and should just abolish the filibuster, say, or should do something a little bit crazy because the Democrats will do it anyway.
• 23:49
  SPEAKER_02: I don't know about clearing out all of the Supreme Courts in states.
• 23:54
  SPEAKER_02: Like I where the where we, you know, we have Republican majorities and maybe the Supreme Court is a little more, a little more liberal.
• 24:00
  SPEAKER_02: I don't know if we should get ahead of this one.
• 24:01
  SPEAKER_00: I feel like it's a little uh beyond the pale, but yeah, and and your point though is well taken just generally.
• 24:08
  SPEAKER_00: I what makes us based, I think, rather than you know, kind of ordinary, ordinary, is that like I do think, Catherine, that you and I believe that to the extent the law can plausibly be instrumentally used to advance, say, the common good or conservative ends, which I think you and I agree are consistent with the common good, it should be used for those purposes.
• 24:35
  SPEAKER_00: But the law itself has certain boundaries that are themselves important for instrumental reasons, like behind a veil of ignorance, you want judges to exercise independent judgment, right?
• 24:45
  SPEAKER_00: You don't want to just be able to abolish a court uh anytime it rules against you.
• 24:50
  SPEAKER_00: So it's one of those situations where the Republicans, even if you're based, you really shouldn't want to do that.
• 24:55
  SPEAKER_00: Because again, um, behind a veil of ignorance, it's a bad system.
• 25:00
  SPEAKER_00: But once that framework and structure is in place, surely to the extent the law is ambiguous, to the extent the law is open to competing interpretations, it should be used instrumentally to the extent it can be, right?
• 25:14
  SPEAKER_02: Uh to redistricting, redistricting is kind of a good example of this because you look at what this has set off in other states.
• 25:20
  SPEAKER_02: Well, Florida, of course, right away said, okay, we'll we'll redistrict, you know, we'll do whatever we need to do.
• 25:26
  SPEAKER_02: And this has long been a tool used by Democrats, as we talked about, to completely gerrymander states.
• 25:31
  SPEAKER_02: And as far as Republicans can now go and fix the things that have been done to make these weird, crazy shaped um districts, absolutely they should do it.
• 25:41
  SPEAKER_00: No, I agree.
• 25:42
  SPEAKER_00: And look, behind again a veil of ignorance, if we had a constitutional amendment that said partisan gerrymandering is unconstitutional, uh, that uh districts should be drawn compactly, contiguously, uh, they should keep counties together, communities of interest together, things like that.
• 25:59
  SPEAKER_00: I think that would, I mean, you're always going to find ways to manipulate it.
• 26:02
  SPEAKER_00: But behind a veil of ignorance, I actually think less gerrymandering would be good, right?
• 26:06
  SPEAKER_00: But there's no such constitutional principle right now.
• 26:08
  SPEAKER_00: And so as long as the Democrats, you know, what did we what did we decide that New England is like 40% Republican and has zero right?
• 26:16
  SPEAKER_00: Zero work.
• 26:17
  SPEAKER_00: Like as long as they're playing this game, of course we should play this game, right?
• 26:21
  SPEAKER_02: Yeah, we have to.
• 26:23
  SPEAKER_00: All right.
• 26:23
  SPEAKER_02: Well, we could finally get to our main topic.
• 26:26
  SPEAKER_02: What do you think?
• 26:26
  SPEAKER_02: Are we ready?
• 26:27
  SPEAKER_02: I mean, we've actually covered we've actually covered this topic on like two previous episodes, I think, but we keep getting um more decisions from the circuit courts.
• 26:38
  SPEAKER_02: So um, this is the issue, of course, of mandatory detention of aliens who have evaded inspection at entry.
• 26:45
  SPEAKER_02: So illegals.
• 26:47
  SPEAKER_02: The Fifth Circuit, again, my favorite, was the first circuit to hold that the Trump administration was right that they had to be detaining pending removal.
• 26:56
  SPEAKER_02: The Eighth Circuit then agreed with them.
• 26:59
  SPEAKER_02: But since then, the Second Circuit has come out and created a circuit split.
• 27:04
  SPEAKER_02: And the Seventh Circuit um divided three ways on this question.
• 27:09
  SPEAKER_02: Is that right?
• 27:09
  SPEAKER_02: So we've got like many different views now.
• 27:12
  SPEAKER_02: Um, oh, and the 11th most recently.
• 27:14
  SPEAKER_00: So you'll have to give- No, most recently we had, was it yesterday, two days ago, the Sixth Circuit now?
• 27:20
  SPEAKER_00: So actually, it's moving so fast.
• 27:22
  SPEAKER_00: We have another circuit who's weighed in.
• 27:24
  SPEAKER_00: The Sixth Circuit, based in Ohio, has also weighed in on this.
• 27:27
  SPEAKER_00: So now we have the eighth and the fifth versus the second, 11th, 6th, and a judge on the seventh.
• 27:37
  SPEAKER_00: But the sixth and eighth circuits also had dissents.
• 27:40
  SPEAKER_00: And I think there was a judge on the seventh.
• 27:43
  SPEAKER_00: So it's all over the map.
• 27:44
  SPEAKER_00: So we've had six courts.
• 27:46
  SPEAKER_00: I'm can't are you good at adding?
• 27:48
  SPEAKER_00: I'm very bad at adding.
• 27:49
  SPEAKER_00: What I'm what's going on here?
• 27:50
  SPEAKER_00: How many courts do we have who've weighed in now?
• 27:52
  SPEAKER_00: Seven.
• 27:52
  SPEAKER_00: I don't know.
• 27:53
  SPEAKER_02: I lost count.
• 27:54
  SPEAKER_02: That's I think five.
• 27:55
  SPEAKER_00: I think five courts.
• 27:57
  SPEAKER_02: Well, you'll have to convince me like why this is good that we keep, and maybe we can get back to this later.
• 28:02
  SPEAKER_02: I mean, the the question I really have is is the Supreme Court gonna take this, or are we gonna keep going through every court and just racking up decisions?
• 28:12
  SPEAKER_02: To me, it seems a little redundant.
• 28:14
  SPEAKER_02: Why doesn't the Supreme Court just take it up?
• 28:16
  SPEAKER_02: Is that what they're gonna do?
• 28:17
  SPEAKER_00: Yeah, the the this is really, really important.
• 28:20
  SPEAKER_00: And yes, the Supreme Court will take this up.
• 28:22
  SPEAKER_00: One of the classic types of cases that the Supreme Court takes up is what you already described as a circuit split.
• 28:28
  SPEAKER_00: The Supreme Court does not just take cases to correct errors.
• 28:32
  SPEAKER_00: So unless they are of like such magnitude, you know, like I go back to our homeless cases, you know, the the crazy cases out of the Ninth Circuit where the Ninth Circuit held that there was a constitutional right to shelter in public.
• 28:45
  SPEAKER_00: There was no circuit split on that issue, but it created such chaos across the entire West Coast that the Supreme Court was like, okay, we're gonna take this case.
• 28:54
  SPEAKER_00: But the usual type of case that they take are circuit splits because they want to create national uniformity in federal law, right?
• 29:01
  SPEAKER_00: So it's the classic kind of case.
• 29:03
  SPEAKER_00: And it's a good thing that you have circuits that are splitting and you that you have multiple cases here where they're debating the issue.
• 29:10
  SPEAKER_00: This is what's called percolation.
• 29:12
  SPEAKER_00: The question, the arguments can percolate among the lower courts.
• 29:16
  SPEAKER_00: You'll have various judges, various circuit courts uh debating, deciding the question differently, focusing on different arguments.
• 29:23
  SPEAKER_00: And you could sort of tease out what the good arguments are and what the bad arguments are, and all of that will be to the benefit of the Supreme Court, Catherine, when it goes up to them.
• 29:30
  SPEAKER_00: And it's also to the benefit of our podcast, because yes, it's true, as you said, that we've talked about this issue already, um, you know, both times pretty briefly.
• 29:40
  SPEAKER_00: But now that we've had the benefit of like reading the Six Circuit cases and the 11th Circuit case, and they're super long, I did not read all of them, you know, all 100 plus 300 plus pages of all of them, okay?
• 29:50
  SPEAKER_00: But you could very quickly see which arguments are starting to carry the day and which arguments are being abandoned by both sides.
• 29:57
  SPEAKER_00: And that's the advantage of percolation.
• 29:59
  SPEAKER_00: So today, to our listeners who might have been with us at the very beginning of the podcast, when we first talked about this issue, you'll notice that our discussion, I hope, uh will be much more clarifying in a way, because we've had now the benefit of four additional courts, multiple different opinions, dissenting, not dissenting.
• 30:14
  SPEAKER_00: And um, that's all I think to the good.
• 30:17
  SPEAKER_02: Yeah, that's really interesting.
• 30:18
  SPEAKER_02: Because to me, at first I thought it just seems redundant.
• 30:21
  SPEAKER_02: Are we wasting our time here?
• 30:23
  SPEAKER_02: But uh okay, I think you've convinced me.
• 30:25
  SPEAKER_02: I mean, that makes sense.
• 30:25
  SPEAKER_02: Yeah, we now have many more arguments, and you can see which ones more people get behind.
• 30:30
  SPEAKER_02: Um, I still think probably the Fifth Circuit, you know, whatever they say is a go, but okay, I'll keep an open mind.
• 30:37
  SPEAKER_00: Your favorite circuit, our most based circuit and favorite circuit, the Ten Commandments Circuit.
• 30:43
  SPEAKER_02: Okay, so yes, the Ten Commandment Circuit.
• 30:45
  SPEAKER_02: Okay, so let's uh let's get back into like what exactly this issue was about.
• 30:50
  SPEAKER_02: Um, if I recall correctly, it has to do the question of whether an applicant for admission is also seeking admission, right?
• 30:59
  SPEAKER_02: So from our discussion, that was the whole point of IRERA, which I always say wrong.
• 31:04
  SPEAKER_02: IRERA was to diminish the differences between those who stopped at the border and those who successfully snuck in.
• 31:11
  SPEAKER_02: Because prior to 1966, oh, excuse me, 1996, those who successfully evaded inspection had more benefits under the statute.
• 31:20
  SPEAKER_02: They had more due process and they had to go through deportation rather than the exclusion proceedings, I think.
• 31:27
  SPEAKER_02: So basically you were rewarded for sneaking into the country illegally.
• 31:31
  SPEAKER_02: Is that right?
• 31:32
  SPEAKER_00: Yes, that's it, that's exactly right.
• 31:35
  SPEAKER_00: And the distinction, the key distinction was deportation.
• 31:38
  SPEAKER_00: You know, once you've snuck in, you're here.
• 31:40
  SPEAKER_00: You have to be deported, as you said.
• 31:41
  SPEAKER_00: Well, deportation, you know, even people who came lawfully were subject to deportation proceedings, and you got also a lot more due process, a lot more procedural rights.
• 31:50
  SPEAKER_00: Whereas if you were just cut at the border, we could just say, okay, well, we're just excluding you, right?
• 31:54
  SPEAKER_00: I mean, it's uh it's quick, it's summary, it's expeditious.
• 31:57
  SPEAKER_00: And as you said, this seemed to benefit people who snuck in, right?
• 32:00
  SPEAKER_00: And now they were on the same level as lawful immigrants who became deportable for some reason, right?
• 32:07
  SPEAKER_00: And so the statute was intended to get rid of that distinction and it streamlined all of these uh proceedings into what are called removal proceedings.
• 32:15
  SPEAKER_00: So everyone is now subject to removal proceedings.
• 32:18
  SPEAKER_00: Uh, but there was still a question, Catherine, as to whether, okay, although we're trying to diminish the distinction between people who are caught at the border or who legitimately arrive at a port of entry, say, and those who sneak in.
• 32:31
  SPEAKER_00: Does it follow that we sought to collapse every distinction?
• 32:35
  SPEAKER_00: Does it follow uh, you know, when someone is caught at the border, it's easy enough to say, okay, we're just gonna detain you.
• 32:40
  SPEAKER_00: You're here, we're gonna detain you until we figure out what to do with you.
• 32:43
  SPEAKER_00: It doesn't follow uh that someone who sneaks in and maybe has lived here 10 years should similarly be detained indefinitely once they are caught or if they are caught.
• 32:54
  SPEAKER_00: So that's the question.
• 32:56
  SPEAKER_00: Everyone I think accepts IRERO is intended to collapse as much as possible this distinction, but it still raises the question of whether that include detention, including of people who have been here for 10, 20 years because they snuck in.
• 33:08
  SPEAKER_00: So that's sort of the question.
• 33:10
  SPEAKER_02: Okay.
• 33:11
  SPEAKER_02: And to me, it seems like if you're breaking the law, why should you get to benefit from it even if you have been here for 10 years, you're still breaking the law.
• 33:19
  SPEAKER_02: It seems like that's clearly a benefit.
• 33:22
  SPEAKER_02: And what they do now a lot of times is they just kind of shrug their shoulders and hope that you show up to court.
• 33:27
  SPEAKER_02: And this to me has always seemed like an absurd solution when we could detain them and then they would have to show up to court because they're detained.
• 33:35
  SPEAKER_02: And the other thing is you have another option here, like you can go home.
• 33:40
  SPEAKER_00: Yeah, look, there is a large amount of assumption of risk here, right?
• 33:43
  SPEAKER_00: I mean, I'm uh look, I find this morally normatively actually difficult, right?
• 33:50
  SPEAKER_00: It's in one sense, I agree with you.
• 33:52
  SPEAKER_00: This is an assumption of risk, right?
• 33:54
  SPEAKER_00: It's you sneak in 20 years ago uh because George W.
• 33:58
  SPEAKER_00: Bush didn't enforce the immigration laws.
• 34:01
  SPEAKER_00: Actually, I think Barack Obama was enforced more immigration laws than George W.
• 34:06
  SPEAKER_00: Bush.
• 34:06
  SPEAKER_00: But anyway, okay, you know, for yeah, but for years, you know, we haven't been uh doing this, but you always kind of assume the risk that the enforcement might change.
• 34:15
  SPEAKER_00: And, you know, like why if you successfully sneak in, like why should our society bear the cost of that, even if you've been here 10, 20 years?
• 34:23
  SPEAKER_00: But on the other hand, it's like 20 years, you've established a family, we've sort of suggested that we aren't going to enforce the laws very rigorously.
• 34:31
  SPEAKER_00: But look, anybody who came in since Trump was elected, you're on notice.
• 34:36
  SPEAKER_00: I think those people are on notice, I think since 2016 or whatever, that like we might actually enforce the immigration laws.
• 34:42
  SPEAKER_00: So it's tough.
• 34:43
  SPEAKER_00: It's a tough normative issue, but but I don't want to sound unbased by saying it's a difficult normative question.
• 34:48
  SPEAKER_00: But Catherine, I agree with your based instincts here.
• 34:51
  SPEAKER_02: So what is the argument of the Trump administration?
• 34:54
  SPEAKER_02: They would argue that this is uh this Venn diagram is a circle?
• 34:58
  SPEAKER_02: Like this is the those all of those people should be detained who are in the country along with people who are stopped at a port of entry.
• 35:05
  SPEAKER_00: Yes.
• 35:06
  SPEAKER_00: Uh and it has everything to do with the you know the statute.
• 35:10
  SPEAKER_00: Uh so the the the there's a statutory term uh called applicants for admission, and then the statute says something about seeking admission.
• 35:18
  SPEAKER_00: And the question is, are all applicants for admission also seeking admission?
• 35:22
  SPEAKER_00: So here's the legal question.
• 35:23
  SPEAKER_00: Let me break it up.
• 35:25
  SPEAKER_00: Okay.
• 35:26
  SPEAKER_00: First, Catherine, you pointed out that IRERA wanted to collapse the distinction between people who sneak in and people who are caught at the border or who arrive at the border, is what it's called.
• 35:38
  SPEAKER_00: So the way IRERA did this is by defining both groups to be what are called applicants for admission.
• 35:48
  SPEAKER_00: Okay?
• 35:48
  SPEAKER_00: And here's the definition.
• 35:49
  SPEAKER_00: Let me pull it up.
• 35:51
  SPEAKER_00: It's really not even a definition.
• 35:52
  SPEAKER_00: Call it a deeming clause.
• 35:54
  SPEAKER_00: Okay, it it this will become important later in our discussion.
• 35:58
  SPEAKER_00: It says an alien present in the United States who has not been admitted.
• 36:04
  SPEAKER_00: What does that mean, by the way?
• 36:05
  SPEAKER_00: Snuck in, right?
• 36:06
  SPEAKER_00: An alien who snuck in, an illegal alien.
• 36:09
  SPEAKER_00: I don't know how you want to describe it.
• 36:10
  SPEAKER_00: We should probably come up with a shorter word for it, Catherine.
• 36:13
  SPEAKER_00: You want to say snuck in?
• 36:14
  SPEAKER_00: Something like that.
• 36:15
  SPEAKER_02: Yeah, I don't know.
• 36:17
  SPEAKER_02: Someone who snuck in, yeah.
• 36:18
  SPEAKER_00: Snuck right, so okay.
• 36:20
  SPEAKER_00: An alien present who has not been admitted, so someone who snuck in, or an alien who arrives in the United States shall be deemed, for purposes of this chapter, an applicant for admission.
• 36:35
  SPEAKER_00: Okay.
• 36:36
  SPEAKER_00: So this is how you collapse the distinction between the two groups.
• 36:39
  SPEAKER_00: They're both defined as applicants for admission into the United States.
• 36:43
  SPEAKER_00: Now, this will become important.
• 36:45
  SPEAKER_00: This is a bit of a fiction, right?
• 36:47
  SPEAKER_00: Everybody understands that someone who snuck in is not literally applying for admission into the United States.
• 36:54
  SPEAKER_00: They just snuck in.
• 36:55
  SPEAKER_00: They just snuck in, right?
• 36:56
  SPEAKER_00: It's like, no, I snuck into Stanford and I'm attending classes, you know?
• 37:01
  SPEAKER_02: It's like Well, but you're seeking admission.
• 37:05
  SPEAKER_02: That's the question, right?
• 37:06
  SPEAKER_02: I mean, you obviously want to be in the US if you snuck in to be here.
• 37:11
  SPEAKER_02: You're seeking right.
• 37:13
  SPEAKER_00: Well, okay, okay.
• 37:14
  SPEAKER_00: So let's put seeking aside, because we haven't gotten to that part of the statute yet.
• 37:18
  SPEAKER_00: Is it fair to say that even if you're seeking admission by sneaking into the United States, you're not literally applying, right?
• 37:26
  SPEAKER_00: You're just sneaking in.
• 37:28
  SPEAKER_00: I'm I'm seeking admission, but I'm not applying for admission.
• 37:30
  SPEAKER_00: I'm seeking admission by sneaking into the dorm rooms and attending classes.
• 37:35
  SPEAKER_00: Like, I I don't know, like we probably need a better analogy than this, but you see the point, right?
• 37:40
  SPEAKER_00: So they're they're literally not applying for admission, but they are defined as being applicants for admission.
• 37:47
  SPEAKER_00: Okay, so that's all well and good.
• 37:51
  SPEAKER_00: But then we get to the specific mandatory detention part of the statute, Catherine.
• 37:56
  SPEAKER_00: And that, and if you want to know, that's AUSC 1225 B2.
• 38:01
  SPEAKER_00: AUSC 1225 is what we're section one 1225 is what we're dealing with throughout today.
• 38:06
  SPEAKER_00: Okay.
• 38:07
  SPEAKER_00: So the the detention part of the statute says the following.
• 38:11
  SPEAKER_00: Okay, and I'm gonna read it carefully so our audience uh who is listening can can follow.
• 38:15
  SPEAKER_00: In the case of an alien, who is an applicant for admission if the examining immigration officer determines that an alien seeking admission is not clearly and beyond doubt entitled to be admitted, then the alien shall be detained.
• 38:32
  SPEAKER_00: Okay.
• 38:33
  SPEAKER_00: Why is this weird?
• 38:36
  SPEAKER_00: Well, are all applicants for admission also seeking admission?
• 38:40
  SPEAKER_00: In other words, remember, the the statute says in the case of an applicant for admission, if an alien seeking admission is not clearly and beyond doubt entitled to be admitted, you shall detain them, right?
• 38:51
  SPEAKER_00: So this is kind of weird.
• 38:54
  SPEAKER_00: Are all applicants for admission necessarily seeking admission?
• 39:00
  SPEAKER_00: This is kind of a version of the Trump administration argument.
• 39:04
  SPEAKER_00: And in a way, you know, makes sense.
• 39:06
  SPEAKER_00: Like, as you said, they're even if they sneak in, they're kind of seeking admission, aren't they?
• 39:11
  SPEAKER_02: I think so.
• 39:12
  SPEAKER_02: They want they want admission, right?
• 39:15
  SPEAKER_00: Yes.
• 39:15
  SPEAKER_00: So so the argument is they are both applicants and seeking.
• 39:19
  SPEAKER_00: But if that's true, then isn't the statute redundant, right?
• 39:22
  SPEAKER_00: If that's true, wouldn't the statute have just been written in sort of a more like straightforward way?
• 39:28
  SPEAKER_00: Wouldn't the statute have just said in the case of an applicant for admission, if said applicant is not clearly and beyond doubt, you know, entitled to admission, shall be detained, right?
• 39:38
  SPEAKER_00: Why does the statute vary from applicant to seeking?
• 39:42
  SPEAKER_00: Do you see that?
• 39:43
  SPEAKER_02: I mean that's what I mean I don't have a good answer for that.
• 39:44
  SPEAKER_02: That that's a simple weird.
• 39:46
  SPEAKER_00: Well, that's why, Catherine, we're gonna talk about it for the rest of the episode today.
• 39:50
  SPEAKER_00: In our last, you know, remaining 25 minutes, we're gonna unpack this.
• 39:54
  SPEAKER_00: Um, and so that's the argument.
• 39:56
  SPEAKER_00: One of the arguments on the other side is that this is not written.
• 40:00
  SPEAKER_00: They must mean something different.
• 40:01
  SPEAKER_00: Okay.
• 40:02
  SPEAKER_00: And and so what the anti-Trump administration people say, what the sort of pro-immigrant, I guess, uh uh or pro-illegal alien, I don't know, pro what?
• 40:13
  SPEAKER_01: Pro-legals?
• 40:15
  SPEAKER_00: Pro-legal, fine, fine.
• 40:16
  SPEAKER_00: I don't care really.
• 40:17
  SPEAKER_00: Like we're we're not be on this podcast.
• 40:19
  SPEAKER_00: We could call them whatever we want.
• 40:20
  SPEAKER_00: Okay.
• 40:20
  SPEAKER_00: Pro-illeals.
• 40:21
  SPEAKER_00: The problem there is they seem to say that an alien seeking for admission, so so of the applicants for admission, remember there are two groups.
• 40:31
  SPEAKER_00: It's anybody who's arriving in the United States or somebody who snuck in, right?
• 40:36
  SPEAKER_00: What the other side says is that, well, seeking for admission, if it's not the same thing as an applicant for admission, must therefore only be arriving aliens.
• 40:46
  SPEAKER_00: Because somebody who snuck in maybe sought admission by sneaking in, but they're not literally seeking admission right now.
• 40:54
  SPEAKER_00: They snuck in, they're not seeking admission at all.
• 40:57
  SPEAKER_00: Therefore, it only applies to arriving aliens.
• 40:59
  SPEAKER_00: But the problem with this part of the statute, with this argument, sorry, Catherine, is that if that's true, well, why didn't the statute just say that?
• 41:07
  SPEAKER_00: Why didn't the statute say arriving alien?
• 41:09
  SPEAKER_00: Because throughout the rest of the statute, it describes present aliens and arriving aliens.
• 41:15
  SPEAKER_00: And so if it really meant arriving aliens, it should have said arriving aliens, like it does in every other provision, right?
• 41:20
  SPEAKER_00: So what I'm trying to say is this paragraph is not a model of clarity, right?
• 41:28
  SPEAKER_02: Like, I'm not surprised.
• 41:29
  SPEAKER_02: I just always feel like the people who are writing these laws, they're not like, I don't know, if they're our brightest minds.
• 41:34
  SPEAKER_02: Like, I'm just, I just we put so much stock into the words and like, is it redundant and is it?
• 41:40
  SPEAKER_02: I don't know.
• 41:41
  SPEAKER_02: Yeah, that frustrates me a little about the law.
• 41:43
  SPEAKER_00: Okay, yeah.
• 41:44
  SPEAKER_00: So, like the the point is like you get it, right?
• 41:46
  SPEAKER_00: It's difficult, right?
• 41:47
  SPEAKER_00: On the one side, it seems redundant.
• 41:49
  SPEAKER_00: If all applicants are necessarily seeking, why didn't it just say that?
• 41:52
  SPEAKER_00: On the other hand, if it only means arriving aliens can be detained, well, why didn't it say that?
• 41:57
  SPEAKER_00: Right, which is what they said in the rest of that part of the statute.
• 42:00
  SPEAKER_00: So it's a hard case.
• 42:02
  SPEAKER_00: Can we agree, Catherine, that that um at least the argument on both sides are plausible?
• 42:07
  SPEAKER_00: Okay.
• 42:08
  SPEAKER_02: And yeah, okay.
• 42:09
  SPEAKER_02: Obviously, it seems like a difficult issue.
• 42:13
  SPEAKER_02: I would agree.
• 42:14
  SPEAKER_02: Both sides honestly make sense to me.
• 42:16
  SPEAKER_02: Um, but the second circuit thought, as you say, that it was the other side wasn't even plausible.
• 42:22
  SPEAKER_02: They said, okay, here's the quote.
• 42:24
  SPEAKER_02: Today, although we part ways with two other circuits that have addressed this question, we join the overwhelming majority of federal judges across the nation to consider it and conclude that the government's novel interpretation of the immigration statutes defies their plain text.
• 42:39
  SPEAKER_02: And then they say their interpretation, quote, reflects executive branch practice over 30 years and across five presidential administrations.
• 42:48
  SPEAKER_02: Finally, even if the government's newfound interpretation of section 1225 B2A were plausible, and it is not, we would nonetheless reject it based on our obligation to construe these statutes in a manner that would avoid the serious constitutional questions attendant to what would be the broadest mass detention with oh, without bond mandate in our nation's history for millions of non-citizens.
• 43:14
  SPEAKER_02: Okay, well, first of all, that was like a run-on sentence like I've never heard.
• 43:18
  SPEAKER_02: Um, but they literally say it is not plausible.
• 43:21
  SPEAKER_02: The other, the two courts that have already decided like that is are completely unplausible.
• 43:25
  SPEAKER_02: I mean, this seems kind of rude to me.
• 43:27
  SPEAKER_00: Yes.
• 43:28
  SPEAKER_00: Okay, so first of all, Catherine, you're right, that was a run-on sentence.
• 43:31
  SPEAKER_00: Like you could have broken that up, uh, Second Circuit.
• 43:34
  SPEAKER_00: Look, we have the 11th Circuit, we can talk about their arguments.
• 43:38
  SPEAKER_00: We have the Sixth Circuit now, we can talk about the Second Circuit.
• 43:41
  SPEAKER_00: To be honest, I don't really want to talk about because that was rude.
• 43:44
  SPEAKER_00: That was rude.
• 43:45
  SPEAKER_00: Like the Second Circuit was like, first of all, it identifies the Fifth and Eighth Circuit.
• 43:50
  SPEAKER_00: And then immediately says, even if we thought their arguments were plausible and they're not, like you were being so rude to cod to other federal judges.
• 43:58
  SPEAKER_00: Like, obviously, their arguments are at Least plausible.
• 44:00
  SPEAKER_00: And here, like, we just told our reader what the complication is and why this isn't particularly clear.
• 44:05
  SPEAKER_00: And to say that the other side isn't plausible, like, what Kool-Aid have you drunk?
• 44:11
  SPEAKER_00: You know, what hole have you stuck your head in?
• 44:15
  SPEAKER_00: Up I don't know.
• 44:15
  SPEAKER_00: I'll try to be kosher here on this podcast.
• 44:18
  SPEAKER_00: But it's just like it's just totally rude.
• 44:20
  SPEAKER_00: And this whole mumbo jumbo, which I really don't want to talk about about constitutional concerns of a mass detention program.
• 44:27
  SPEAKER_00: Like, okay, well, can you mass detain a million people caught at the border?
• 44:32
  SPEAKER_00: And if that's okay, why can't you mass detain a million people who snuck in six months ago?
• 44:37
  SPEAKER_02: Say, I mean, there's that would be the fault of the president who allowed in all of those people, in my opinion.
• 44:45
  SPEAKER_02: It wouldn't be the fault of the law, which the law clearly makes sense.
• 44:49
  SPEAKER_02: It's you shouldn't allow that many people to sneak into the border so you don't have a mass detention problem.
• 44:54
  SPEAKER_00: As always, Catherine, a based and correct take.
• 44:58
  SPEAKER_00: So is it you so is it fair to say that we don't really need to talk about the Second Circuit anymore?
• 45:03
  SPEAKER_00: Uh I just that really uh irked me that that they said that.
• 45:07
  SPEAKER_00: And look, a lot of the arguments we talk about today will have been made in the Second Circuit as well, but also there's the 11th Circuit and Sixth Circuit.
• 45:13
  SPEAKER_00: So we can kind of focus on that.
• 45:15
  SPEAKER_00: So, okay, on the presumption, Catherine, that this is a difficult issue, right?
• 45:19
  SPEAKER_00: That that there is these textual questions on both sides.
• 45:22
  SPEAKER_00: Let's move to the text itself, right?
• 45:25
  SPEAKER_00: And there are sort of two provisions uh surrounding these other provisions that we've talked about, right?
• 45:31
  SPEAKER_00: The deeming clause and then the detention clause uh that talk about applicants for admission and seeking for admission.
• 45:38
  SPEAKER_00: And the 11th Circuit sort of focused on one and the sixth circuit focused on the other.
• 45:42
  SPEAKER_00: So the first has to do with the word otherwise.
• 45:44
  SPEAKER_02: Yeah.
• 45:45
  SPEAKER_02: Um from the 11th Circuit, um, they they focused on a certain provision of this statute.
• 45:54
  SPEAKER_02: It says all aliens, including alien crewmen who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.
• 46:09
  SPEAKER_00: Yeah.
• 46:10
  SPEAKER_00: And so the question here, Catherine, is otherwise seeking admission.
• 46:15
  SPEAKER_00: So again, this is from the statute, which again deems applicants for admission, right?
• 46:19
  SPEAKER_00: Or deems both groups to be applicants for admission.
• 46:22
  SPEAKER_00: And then it says, all aliens who are applicants for admission or otherwise seeking admission shall be inspected.
• 46:29
  SPEAKER_00: Okay.
• 46:31
  SPEAKER_00: Now, the way this reads, it sounds like all applicants for admission are seeking admission, right?
• 46:39
  SPEAKER_00: There might be other ways to seek admission, but it the way it reads, it sounds like applicants for admission are subsumed by the phrase seeking admission, right?
• 46:49
  SPEAKER_00: Or otherwise seeking admission.
• 46:51
  SPEAKER_00: Think of a colloquial example, like so anybody who um uh oh, okay.
• 46:58
  SPEAKER_00: Here's an example.
• 46:59
  SPEAKER_00: Anybody who uh renovates the White House or other or otherwise alters it in any way.
• 47:09
  SPEAKER_02: Yeah.
• 47:10
  SPEAKER_02: So renovating is by definition altering, like all of the renovating is included in the altering, but there could be other ways to alter it.
• 47:18
  SPEAKER_02: But renovating is clearly altering, right?
• 47:22
  SPEAKER_00: Yeah, renovating is subsumed by the word altering.
• 47:26
  SPEAKER_00: So again, anybody Yeah, it yeah, that's you, you know, we're textualists around here, at least is a first cut, right?
• 47:33
  SPEAKER_00: Let's look at the text.
• 47:34
  SPEAKER_00: So it does seem to say that applicants for admission are subsumed in the category seeking admission, right?
• 47:41
  SPEAKER_00: Applicants for admission or otherwise seeking admission.
• 47:43
  SPEAKER_00: There might be other ways to seek admission, right?
• 47:46
  SPEAKER_00: Um, tourist visas, you can apply for humanitarian parole, I guess, like from another country.
• 47:52
  SPEAKER_00: I mean, there are all sorts of ways you might otherwise be seeking admission, okay?
• 47:56
  SPEAKER_00: So this does seem subsumed by it.
• 47:59
  SPEAKER_00: That's a pretty good argument now.
• 48:02
  SPEAKER_00: The 11th Circuit rejected this argument.
• 48:05
  SPEAKER_00: And I just like I'm trying to be respectful to federal judges.
• 48:10
  SPEAKER_00: Catherine's laughing.
• 48:11
  SPEAKER_00: No need.
• 48:12
  SPEAKER_00: No need.
• 48:13
  SPEAKER_02: Not as rude as them.
• 48:14
  SPEAKER_02: We gotta be above that.
• 48:16
  SPEAKER_00: True.
• 48:16
  SPEAKER_00: Okay, okay.
• 48:18
  SPEAKER_00: Okay, oh, Catherine, challenge accepted.
• 48:21
  SPEAKER_00: Dare I say that the 11th circuit riff on this provision is not plausible?
• 48:28
  SPEAKER_00: Okay, I try not to be rude.
• 48:30
  SPEAKER_00: So, what the 11th circuit says is well, wait a minute.
• 48:35
  SPEAKER_00: The word otherwise actually has a different meaning as well.
• 48:39
  SPEAKER_00: The other definition means opposite, right?
• 48:42
  SPEAKER_00: Or converse.
• 48:43
  SPEAKER_00: So they actually say that in the 11th circuit.
• 48:45
  SPEAKER_00: And here it could mean opposite or converse.
• 48:48
  SPEAKER_00: But that is so preposterous.
• 48:50
  SPEAKER_00: That use of the word otherwise is clearly not how it's used here, right?
• 48:55
  SPEAKER_00: So the word otherwise in that context, like like opposite or converse, let me give you an example.
• 49:02
  SPEAKER_00: Uh X must be the case, otherwise, the world's going to end.
• 49:08
  SPEAKER_00: Okay.
• 49:08
  SPEAKER_00: When you say otherwise in that sentence, you mean if X is not the case, right?
• 49:14
  SPEAKER_00: So you say if X is the case, otherwise the world will the world will end or the sky will fall.
• 49:20
  SPEAKER_00: By the word otherwise, the the function it it performs in that sentence is, but if X is not the case, then here are the crazy consequences.
• 49:29
  SPEAKER_02: Yeah, that makes sense, but that's not how it how it's used, right?
• 49:32
  SPEAKER_02: So they're just using the word incorrectly.
• 49:36
  SPEAKER_00: So exactly.
• 49:38
  SPEAKER_00: So the 11th Circuit, it's like, yes, true, Catherine, true, otherwise could be used in this way, but it's obviously not how it's used in this particular clause, this particular section of the statute.
• 49:51
  SPEAKER_00: And plus, uh, you know, it can't be opposite because everybody accepts, even the 11th circuit, that some applicants for admission are seeking admission, right?
• 50:00
  SPEAKER_00: Like arriving aliens at a minimum are seeking admission and are also applicant.
• 50:04
  SPEAKER_00: So how can you be opposite?
• 50:05
  SPEAKER_00: How can you be opposite or converse?
• 50:06
  SPEAKER_00: So, so in my view, it clearly, okay.
• 50:11
  SPEAKER_00: I'm not out, okay.
• 50:12
  SPEAKER_00: It strongly supports you know, the judge that I clerked for would count up the number of times an advocate in oral argument would say the word clearly.
• 50:23
  SPEAKER_00: And he would say the more often the advocates of the word clearly, the less likely he was to think you had a strong case.
• 50:32
  SPEAKER_00: Or right, you know, it's like that's such a good point, though.
• 50:34
  SPEAKER_02: That's funny.
• 50:35
  SPEAKER_02: It's like the kind of like hubris of each side is like the other guy is obviously implausible.
• 50:40
  SPEAKER_02: When like this is like a confusing issue.
• 50:42
  SPEAKER_02: I mean, uh, that is very funny.
• 50:44
  SPEAKER_02: Uh, but you are daring to say that you think the 11th circuit opinion is not particularly plausible.
• 50:51
  SPEAKER_00: Correct.
• 50:51
  SPEAKER_00: Now, this reminds me of the time which I've talked about before on the podcast, but I was in Dickster Court in Texas, federal district court, and I said, Your honor, no reasonable person would say this, it would interpret it this way.
• 51:01
  SPEAKER_00: And the judge was like, Whoa, counsel, the government says that.
• 51:05
  SPEAKER_00: That's exactly what the government argues.
• 51:07
  SPEAKER_00: And I said, I stand by what I said, Your Honor.
• 51:09
  SPEAKER_00: No, I'm joking.
• 51:10
  SPEAKER_00: I didn't actually I didn't actually say that piece of it, but I thought it, and it was obvious that I thought it.
• 51:16
  SPEAKER_00: And the judge ruled against me.
• 51:17
  SPEAKER_00: But we won an appeal, you know.
• 51:19
  SPEAKER_00: Anyway, it's it was on a slightly different issue, so it's all a bit tricky.
• 51:23
  SPEAKER_00: But like, look, no, that it this is otherwise.
• 51:26
  SPEAKER_00: This is clearly okay, shoot, I said it again.
• 51:28
  SPEAKER_00: Strongly, Catherine, stop me.
• 51:32
  SPEAKER_00: I'm out of control.
• 51:32
  SPEAKER_00: Okay, strongly supports, I think, the Trump administration view that applicants for admission are seeking admission, necessarily.
• 51:41
  SPEAKER_00: Now, the problem still is okay, but then the mandatory detention provision is still redundant, right?
• 51:47
  SPEAKER_00: So if it's true that all applicants for admission are necessarily seeking admission, and the otherwise provision here supports that, well, then the mandatory detention provision is still redundant, right?
• 51:56
  SPEAKER_00: Because why doesn't it just say applicants for admission, right?
• 51:59
  SPEAKER_00: Um, and so it's a bit weird.
• 52:02
  SPEAKER_00: And here I think is where Judge Murphy, in his Sixth Circuit descent, actually shines.
• 52:08
  SPEAKER_00: Uh, because he then focuses on still another provision of the statute.
• 52:13
  SPEAKER_00: But before we even get there, this is this was actually my argument.
• 52:17
  SPEAKER_00: I had this idea like weeks ago, and I was like, why has nobody said this?
• 52:22
  SPEAKER_01: Wait, did you say it on the podcast?
• 52:24
  SPEAKER_00: I didn't, so there's no proof.
• 52:26
  SPEAKER_00: There's no proof that I have.
• 52:29
  SPEAKER_00: But the way you solve this problem, I think, is why can't you say that applicants for admission uh who are caught, there's an immigration encounter.
• 52:43
  SPEAKER_00: At the time that there is an immigration encounter, they may choose to no longer be seeking admission.
• 52:48
  SPEAKER_00: That all applicants for admission are necessarily seeking admission.
• 52:53
  SPEAKER_00: But if you're caught and you can say, you know what, I'm just gonna self-deport.
• 52:57
  SPEAKER_00: I'm just gonna leave.
• 52:58
  SPEAKER_00: You're no longer seeking admission.
• 53:01
  SPEAKER_00: And so the mandatory detention doesn't apply to you because we'll be like, okay, you'd better leave, you know, or here's a plane ticket.
• 53:07
  SPEAKER_00: And you know, it's it's it's a bit weird, but it seems it's kind of like I don't know, maybe I'm getting this wrong, but the Heisenberg uncertainty principle, you can't know exactly, you know, the position of a particle until you observe it.
• 53:22
  SPEAKER_00: Um, because you know, there's a wave function for particles.
• 53:24
  SPEAKER_00: I told you, Catherine, I was a physics major, right?
• 53:26
  SPEAKER_00: I said that before.
• 53:28
  SPEAKER_02: No, I'm from English class to physics, like physics is even perfect.
• 53:33
  SPEAKER_02: Okay, so let's begin.
• 53:34
  SPEAKER_00: The the problem was I sucked at physics, which is why I became a lawyer.
• 53:38
  SPEAKER_00: So there's hope for everybody, see?
• 53:40
  SPEAKER_00: Um, but uh so maybe I'm not remembering the Heisenberg uncertainty principle, but it's kind of like that.
• 53:45
  SPEAKER_00: Like uh an applicant for admission may or may, you know, you know, may or may not actually be seeking admission at any given time, uh, like literally, but as soon as there's an immigration encounter, as soon as they're observed, like as soon as the particle is observed, you must make a choice.
• 53:59
  SPEAKER_00: You are now either choosing to seek to stay in the United States or you can self-deport, right?
• 54:03
  SPEAKER_00: Does that make sense?
• 54:04
  SPEAKER_02: That makes sense because yeah, yeah, when you get caught, you do you basically have to make a choice.
• 54:08
  SPEAKER_02: Either you're gonna be detained or yeah, you can go home, which by the way, is not a bad deal because right now, still the Trump administration has a nice incentive for you to go home, you know,$1,200 or something like that.
• 54:20
  SPEAKER_02: So it's like you do have to make a choice, though.
• 54:23
  SPEAKER_02: And a lot of people, for what it's worth, have chosen to self-deport, like three million last year and even more this year.
• 54:30
  SPEAKER_02: So I don't know.
• 54:31
  SPEAKER_02: I think that makes sense.
• 54:32
  SPEAKER_02: And there's there, you know, earlier we talked about the judge complaining about, you know, what if we have this mass detention policy?
• 54:38
  SPEAKER_02: Well, they don't have to be detained.
• 54:40
  SPEAKER_02: They can leave, they can go home.
• 54:41
  SPEAKER_02: There's always that choice.
• 54:42
  SPEAKER_02: So I like this option.
• 54:45
  SPEAKER_00: Yeah.
• 54:46
  SPEAKER_00: Um, and the option not only uh, I guess exists realistically, as you said, Catherine, because people are are taking it up, but there's a provision of the statute that seems to contemplate it, right?
• 54:55
  SPEAKER_00: And this is what Judge Murphy of the Sixth Circuit focused on.
• 54:57
  SPEAKER_00: And so now we're at section 1225A4, where he says, where the statute says an alien applying for admission may, in the discretion of the attorney general, be permitted to withdraw the application for admission and depart immediately from the United States.
• 55:16
  SPEAKER_00: So here again, it's like, okay, they are deemed, people who sneak in are deemed applicants for admission, but they may at any time withdraw said pretend fictional application by deporting.
• 55:28
  SPEAKER_00: In other words, you combine all these provisions and the government's position starts to look a lot stronger.
• 55:34
  SPEAKER_00: I'm actually, this is the percolation, Catherine.
• 55:37
  SPEAKER_00: I'm actually more confident, I think, today, in the Trump administration's argument than I was when we were first talking about the Fifth Circuit decision.
• 55:44
  SPEAKER_00: And it's because this redundancy, you know, the otherwise clause suggests that applicants are seeking admission that would create this redundancy, but this redundancy is solved by the withdrawal clause, right?
• 55:55
  SPEAKER_00: Which it says, yes, ordinarily applicants for admission are seeking admission.
• 55:59
  SPEAKER_00: But at the moment you have an immigration encounter, you can choose to self-deport and withdraw.
• 56:04
  SPEAKER_00: And therefore you're not subject to this mandatory detention.
• 56:07
  SPEAKER_00: And so the statute is no longer redundant because there will be a subset of applicants for admission who are no longer seeking admission because they choose to withdraw their application and self-deport.
• 56:16
  SPEAKER_00: Again, it's a fictional application.
• 56:17
  SPEAKER_00: But what's wrong with that?
• 56:19
  SPEAKER_00: That seems like a perfectly plausible argument.
• 56:21
  SPEAKER_00: Okay, what do you think?
• 56:22
  SPEAKER_02: Oh, I like it.
• 56:23
  SPEAKER_02: No, that it solves all the problems, right?
• 56:25
  SPEAKER_02: It solves the redundancy and it makes perfect sense to me.
• 56:28
  SPEAKER_02: I like it.
• 56:29
  SPEAKER_00: So your point is right.
• 56:31
  SPEAKER_02: The percolation really helped because it did take time for people to work out these arguments and see which ones make the most sense.
• 56:38
  SPEAKER_02: Because I think when we ended the first time we talked about this, it was a little bit unsatisfying.
• 56:42
  SPEAKER_02: We thought both sides were kind of had a tricky question here.
• 56:46
  SPEAKER_02: Now it seems like that clearly solves all the problems here, is the best answer, right?
• 56:52
  SPEAKER_00: Yes, now.
• 56:53
  SPEAKER_00: Okay.
• 56:54
  SPEAKER_00: To be fair, actually, we're not being fair yet because there is a textual argument on the other side, but it's actually really bad.
• 57:00
  SPEAKER_00: But I we will we will get to the best arguments on the other side before we end.
• 57:05
  SPEAKER_00: I know we only have like maybe 10 minutes uh left here to our listeners.
• 57:09
  SPEAKER_00: Um but um so so first, the the best textual argument on the other side, which is really a bad one, but again, I'm gonna just say it.
• 57:18
  SPEAKER_00: And this is what the the Second Circuit said, and the 11th Circuit said, and the Sixth Circuit said.
• 57:24
  SPEAKER_00: Seeking admission.
• 57:25
  SPEAKER_00: Okay, what is seeking admission?
• 57:27
  SPEAKER_00: Well, they said the word admission has a definition under the statute.
• 57:31
  SPEAKER_00: And the word admission under the statute means lawful entry.
• 57:36
  SPEAKER_00: And therefore, an alien who's not literally and actually seeking lawful entry is not seeking admission.
• 57:43
  SPEAKER_00: That's their argument.
• 57:44
  SPEAKER_00: That's the best textual argument on the other side.
• 57:47
  SPEAKER_00: Why is this crazy?
• 57:49
  SPEAKER_00: Why is this crazy?
• 57:50
  SPEAKER_00: Because the statute defines them, it deems people who snuck in to be applicants for admission.
• 57:59
  SPEAKER_00: It declares them to be applying for lawful entry, even though they snuck in and obviously are not seeking lawful entry.
• 58:06
  SPEAKER_00: And so the whole point is if the statute deems you to be an applicant for lawful entry, then I think that means for purposes of the statute, which remember, the provision deemed them applicants for all purposes.
• 58:19
  SPEAKER_00: Well, if you're an applicant for all purposes of the statute, if you're literally presumed, we pretend that it's a fiction that you are seeking lawful there.
• 58:28
  SPEAKER_00: I said it, that you're applying for lawful entry, then you are necessarily seeking lawful entry under this fiction, aren't you?
• 58:36
  SPEAKER_00: So the whole thing, again, doesn't work.
• 58:39
  SPEAKER_00: And here, Catherine, is where Lagoa, Judge Lagoa, Barbara Lagoa on the 11th Circuit in her descent really shined.
• 58:46
  SPEAKER_00: And she had some nuggets that were kind of good for birthright citizenship because she used examples from previous immigration cases where the statutes deem an alien to be a certain type or a certain thing, a certain fiction.
• 59:02
  SPEAKER_00: And the fiction carries through, right?
• 59:05
  SPEAKER_00: It carries through.
• 59:06
  SPEAKER_00: So there was this example of this Ellis Island case, um, where uh let me find it here.
• 59:12
  SPEAKER_00: Oh, yeah.
• 59:13
  SPEAKER_00: Okay.
• 59:13
  SPEAKER_02: I have it.
• 59:14
  SPEAKER_02: It's a 13-year-old Russian national arrives at Ellis Island.
• 59:17
  SPEAKER_02: This was in 1914, and was ordered excluded.
• 59:21
  SPEAKER_02: When World War I prevented deportation, she was released to a charitable society and lived with her father for nearly eight years.
• 59:29
  SPEAKER_02: Her father was naturalized during that period, and she claimed citizenship under a provision conferring it on minor children of naturalized parents, if dwelling in the United States.
• 59:38
  SPEAKER_02: That's from the statute.
• 59:40
  SPEAKER_02: Justice Holmes rejected the claim.
• 59:42
  SPEAKER_02: Her release from Ellis Island, he explained, did not change the nature of her stay within the territory.
• 59:48
  SPEAKER_02: She remained in theory of law at the boundary line and had gained no foothold in the United States.
• 59:54
  SPEAKER_02: Eight years of physical habitation was not dwelling because until she legally landed, she could not have dwelt within the United States.
• 1:00:03
  SPEAKER_00: So this is fascinating and obviously bears on the birthright citizenship uh debate, which we'll get to in a second.
• 1:00:09
  SPEAKER_00: But what Lagoa is saying is when a statute deems you to be something for certain purposes, the real world reality doesn't matter, right?
• 1:00:19
  SPEAKER_00: So this person was let into the United States because World War I prevented her from being sent back, right?
• 1:00:26
  SPEAKER_00: And so she tried to rely on a statute that if her dad naturalized and she was dwelling in the United States, she also would be naturalized.
• 1:00:35
  SPEAKER_00: And so she said, look, I'm a citizen now because I was literally dwelling in the United States when my father naturalized, which is true as a real matter, like as a reality.
• 1:00:45
  SPEAKER_00: But what the Supreme Court said is it doesn't matter because the law says that even though you're with you're dwelling in the United States, you're actually not, even though you're rather, let me put it another way, even though you're literally and truly dwelling in the United States, the law says you aren't.
• 1:01:02
  SPEAKER_00: The law says you're excludable.
• 1:01:04
  SPEAKER_00: The law says for per for legal purposes, it's as if you've never left Ellis Island.
• 1:01:10
  SPEAKER_00: It's as if you've never set foot in the United States.
• 1:01:12
  SPEAKER_00: And therefore, although you are literally dwelling in the United States, in point of law, you are not.
• 1:01:18
  SPEAKER_00: And then Juj Lagoa focuses on another case where a Chinese national was paroled into the United States and she sought the benefit of a statute that was that would protect from deportation any alien within the United States who met certain criteria.
• 1:01:34
  SPEAKER_00: And again, the Supreme Court in 1958 rejected the argument, although the Chinese national was literally within the United States.
• 1:01:42
  SPEAKER_00: In point of law, she was not, because her physical presence was not, right?
• 1:01:48
  SPEAKER_00: And um, what the court basically said is um a preceding provision treats paroleese, someone who's paroled into the country, as though they were stopped at the border.
• 1:01:58
  SPEAKER_00: So it doesn't matter that another part of the statute says within the United States, if you are stopped at the border.
• 1:02:05
  SPEAKER_00: What does it have to do with this mandatory detention?
• 1:02:08
  SPEAKER_00: Well, again, you were deemed an applicant for admission.
• 1:02:10
  SPEAKER_00: That means for all purposes, including the seeking admission, the fiction carries forward.
• 1:02:17
  SPEAKER_00: So you're an applicant for admission, you're an applicant, you're deemed to be an applicant for lawful admission, which means you are seeking lawful admission, even if you literally are not.
• 1:02:26
  SPEAKER_00: Just like even if you literally are not applying for lawful admission, or you're literally not seeking admission, the fiction created by the statute, the legal status created by the statute carries forward.
• 1:02:36
  SPEAKER_00: I thought that was Lagoa's most brilliant stroke in the her descent in the 11th Circuit.
• 1:02:42
  SPEAKER_00: I think it is absolutely right.
• 1:02:44
  SPEAKER_00: Birthright citizenship.
• 1:02:46
  SPEAKER_02: Yeah, what is it?
• 1:02:47
  SPEAKER_02: Okay, it does seem like it.
• 1:02:48
  SPEAKER_02: Has this come up in birthright citizenship?
• 1:02:49
  SPEAKER_02: Because it seems like this is one of the main questions, right?
• 1:02:52
  SPEAKER_02: What does this say about birthright to you?
• 1:02:55
  SPEAKER_00: Okay, first of all, Catherine, what this says is the benefits of percolation.
• 1:03:01
  SPEAKER_00: The Supreme Court birthright stuff didn't percolate.
• 1:03:03
  SPEAKER_00: It didn't percolate.
• 1:03:04
  SPEAKER_00: They took the case so quickly.
• 1:03:06
  SPEAKER_00: It was only in liberal jurisdictions, of course.
• 1:03:09
  SPEAKER_00: And so you only really had one perspective on this.
• 1:03:12
  SPEAKER_00: I was unaware of these cases.
• 1:03:14
  SPEAKER_00: Now, look, I I my research ends in the 1880s or so, right?
• 1:03:19
  SPEAKER_00: I I mean, I'm I was interested in the historical meaning, right?
• 1:03:23
  SPEAKER_00: I did not look at these subsequent cases, but I did not see any of these cases.
• 1:03:28
  SPEAKER_00: Maybe they were discussed and I just missed it.
• 1:03:30
  SPEAKER_00: Um, but why are these cases important for the birthright to citizenship case?
• 1:03:34
  SPEAKER_00: Well, what does the 14th Amendment say?
• 1:03:35
  SPEAKER_00: The 14th Amendment says any person born in the United States, right, born or naturalized in the United States and subject to the jurisdiction error.
• 1:03:44
  SPEAKER_00: So just start with in the United States.
• 1:03:46
  SPEAKER_00: Okay.
• 1:03:48
  SPEAKER_00: People who come illegally may, in point of law, or maybe as a realistic matter, in the United States.
• 1:03:55
  SPEAKER_00: But in point of law, if they're not allowed to be in the United States, are they actually in the United States for purposes of the 14th Amendment?
• 1:04:02
  SPEAKER_00: If, again, from a legal perspective, you're not allowed to be in the United States.
• 1:04:06
  SPEAKER_00: So that's sort of an interesting parallel.
• 1:04:09
  SPEAKER_00: And then the government's argument, I think this is the more relevant one.
• 1:04:12
  SPEAKER_00: The government says to be subject to the jurisdiction of the United States, you must be domiciled.
• 1:04:17
  SPEAKER_00: And there was a question, or your parents must be domiciled.
• 1:04:20
  SPEAKER_00: And there's a question, an oral argument.
• 1:04:22
  SPEAKER_00: Uh, Justice Gorse is really focused on this.
• 1:04:24
  SPEAKER_00: Could an alien parent unilaterally establish a domicile, even though it's illegal for them to be in the United States?
• 1:04:31
  SPEAKER_00: And I think the implication of Judge Lagoa's cases here is that you can literally be domiciled in the sense of you have an intent to remain and you are physically present in the United States.
• 1:04:44
  SPEAKER_00: But if in point of law it is illegal for you to establish a domicile, then that legal fiction carries forward.
• 1:04:51
  SPEAKER_00: And it doesn't matter that you're physically present and intend to stay, if legally that is precluded to you, right?
• 1:04:58
  SPEAKER_00: That that is prohibited to you.
• 1:04:59
  SPEAKER_00: In point of law, you are not domiciled because you're not allowed to establish a domicile, because you're not allowed to be here.
• 1:05:05
  SPEAKER_00: So I think this does bear potentially on birthright citizenship, but it's probably too late.
• 1:05:12
  SPEAKER_02: Well, I feel like you really helped with my personal understanding because I didn't know the I didn't know these cases, obviously, and about the difference between like the reality of being domiciled and maybe by point of law.
• 1:05:22
  SPEAKER_02: Are you really domiciled as the words being used here?
• 1:05:25
  SPEAKER_02: So I feel like this added a lot to my personal understanding anyway.
• 1:05:28
  SPEAKER_02: Um, I also saw this interesting tweet.
• 1:05:32
  SPEAKER_02: Uh Hans, how do you say his last name?
• 1:05:35
  SPEAKER_00: I don't know.
• 1:05:36
  SPEAKER_00: Well, come friend of the pot.
• 1:05:37
  SPEAKER_00: I don't know who this person is, but I saw it.
• 1:05:39
  SPEAKER_00: Um, Hans, let's say Monkey.
• 1:05:40
  SPEAKER_00: Mankey.
• 1:05:41
  unknown: Monkey?
• 1:05:41
  SPEAKER_02: Okay, he said this.
• 1:05:42
  SPEAKER_02: This is an amazing Easter egg.
• 1:05:44
  SPEAKER_02: Barbara Lagoa was reportedly the runner up to Barrett for the Supreme Court seat.
• 1:05:48
  SPEAKER_02: This almost reads, like she's hinting that if she had gotten the seat, there wouldn't now be all these headaches around the birthright citizenship case and other messes.
• 1:05:57
  SPEAKER_02: I think that is very fascinating because I I do feel like it seems a little bit like an Easter egg.
• 1:06:03
  SPEAKER_02: What do you think about that theory?
• 1:06:04
  SPEAKER_00: Yeah, let me just say, in defense of Barrett, I thought of all the justices, she was the only one who actually asked like the correct questions in terms of what is the through line between all these historical exemptions from birthright citizenship, or you know, like for Indian tribes, for ambassadors, for invading armies.
• 1:06:21
  SPEAKER_00: And she was generally trying to figure it out and does domicile matter, or does domicile not?
• 1:06:25
  SPEAKER_00: Um, but it is, you know, an interesting thought experiment.
• 1:06:28
  SPEAKER_00: Like, would Lagoa be have been more, you know, reliable?
• 1:06:32
  SPEAKER_00: Um, but again, I think Justice Barrett has been pretty reliable.
• 1:06:35
  SPEAKER_00: And quite frankly, the whole birthright thing, it's not their fault, right?
• 1:06:39
  SPEAKER_00: The problem, well, it is their fault for accepting the case early.
• 1:06:42
  SPEAKER_00: They didn't have to do that.
• 1:06:43
  SPEAKER_00: But the government sought to hear the case early.
• 1:06:45
  SPEAKER_00: The government didn't have to do that.
• 1:06:46
  SPEAKER_00: This would have benefited for percolation.
• 1:06:49
  SPEAKER_00: Uh, and that is sort of my um upshot take on the birthright stuff.
• 1:06:53
  SPEAKER_00: It would have benefited from more percolation in the lower course, especially if there had been like a conservative circuit that had had heard it, which you know, there wasn't.
• 1:07:02
  SPEAKER_00: So that's all I'll say about that.
• 1:07:04
  SPEAKER_00: Look, Catherine, we're almost out of time.
• 1:07:06
  SPEAKER_00: I feel like we owe it to our listeners to give the best, best, best argument on the other side.
• 1:07:12
  SPEAKER_00: Can I do that?
• 1:07:13
  SPEAKER_02: I'm ready.
• 1:07:14
  SPEAKER_00: In short, it has nothing to do with the text.
• 1:07:19
  SPEAKER_00: It's just five.
• 1:07:22
  SPEAKER_00: It's just it's just fine.
• 1:07:23
  SPEAKER_00: It has to do with the context of enactment.
• 1:07:27
  SPEAKER_00: Okay, when this was when IRERA was enacted, okay, there's another part of the statute, 1226, that requires the detention of um mandatory detention of otherwise deportable aliens who have committed certain crimes.
• 1:07:41
  SPEAKER_00: Okay.
• 1:07:42
  SPEAKER_00: Uh, like uh like you've murdered somebody.
• 1:07:44
  SPEAKER_00: Like, okay, we will detain you pending your deportation, okay?
• 1:07:47
  SPEAKER_00: That's good.
• 1:07:48
  SPEAKER_00: And so this mandatory detention provision obviously covers a much narrower slice of people.
• 1:07:55
  SPEAKER_00: And when Congress enacted IRERA, it was aware that it would need that the executive branch would need more capacity to detain and house people that they were detaining mandatorily, right?
• 1:08:07
  SPEAKER_00: And so Congress actually provided for the construction of additional detention beds and gave the executive the option of like not enforcing the mandatory detention provisions of 1226 for a temporary period if they didn't have enough detention beds.
• 1:08:24
  SPEAKER_00: Well, this also just very strongly that Congress was not anticipating having to detain and house millions of people who snuck in.
• 1:08:33
  SPEAKER_00: Right?
• 1:08:33
  SPEAKER_02: Wait.
• 1:08:34
  SPEAKER_02: No?
• 1:08:34
  SPEAKER_02: What?
• 1:08:35
  SPEAKER_02: Wait, can you repeat the part about the beds?
• 1:08:36
  SPEAKER_02: But if they're uh if they're assuming they're gonna need more beds, doesn't that mean they assume that only it was a small amount of beds, right?
• 1:08:44
  SPEAKER_00: They recognized that the executive would need more beds under the 1226 narrow mandatory detention for criminal aliens, and they provided for you know 500 more beds, say.
• 1:08:56
  SPEAKER_00: But if they actually had thought the people who snuck in would all be mandatory required to be detained, wouldn't they have provided for like a million more beds?
• 1:09:05
  SPEAKER_02: Okay, yeah, maybe.
• 1:09:06
  SPEAKER_00: I mean that's that's when I when I hear that, I'm like, oh, that is that is a pretty good argument on the other side.
• 1:09:15
  SPEAKER_00: Um now, of course, what you might say, what you might say is criminal aliens that that you don't need detention beds.
• 1:09:26
  SPEAKER_00: Maybe I've actually just convinced myself that this isn't that good of an argument live on air.
• 1:09:31
  SPEAKER_00: And and here's why.
• 1:09:33
  SPEAKER_00: You don't actually need a million detention beds.
• 1:09:36
  SPEAKER_00: You only need the number of detention beds, you know, the commensurate with the number of people you're likely to encounter, right?
• 1:09:43
  SPEAKER_00: So there could be a million people here illegally or 10 million people illegally, but at any given time, maybe there's only half a million in custody, right?
• 1:09:51
  SPEAKER_00: There you aren't literally gonna have all of them in custody the whole time.
• 1:09:54
  SPEAKER_00: And so maybe the thought was well, you're more likely to know about criminal aliens because they will have been caught by state authorities.
• 1:10:01
  SPEAKER_00: And this is before sanctuary city policies.
• 1:10:04
  SPEAKER_01: Right.
• 1:10:04
  SPEAKER_00: Um, and so it's possible that they just thought that it's they really had to provide for the the detention and housing of those who came, um uh those who who committed crimes and who would be caught because of that.
• 1:10:18
  SPEAKER_00: It doesn't follow that you know there wouldn't be other immigration encounters and so on.
• 1:10:22
  SPEAKER_00: So maybe maybe that's maybe that's they thought a lot of them would self-deport.
• 1:10:27
  SPEAKER_00: You know, that's actually interesting too.
• 1:10:30
  SPEAKER_00: Maybe they just thought a bunch of them would self-deport.
• 1:10:32
  SPEAKER_00: I hadn't thought about that, Catherine.
• 1:10:33
  SPEAKER_00: That also is a a decent counter-argument.
• 1:10:35
  SPEAKER_00: But that is the best argument on the other side that I have seen.
• 1:10:38
  SPEAKER_00: And so it's um it's interesting, isn't it?
• 1:10:41
  unknown: Yeah.
• 1:10:41
  SPEAKER_00: But we're out of time.
• 1:10:43
  SPEAKER_02: It's not totally not plausible, uh, either either side of the argument.
• 1:10:48
  SPEAKER_00: Yeah, but you could see again, last point, I guess.
• 1:10:50
  SPEAKER_00: When we started this weeks ago, I was really on the fence.
• 1:10:53
  SPEAKER_00: I was like, oh, this is hard, this is tricky.
• 1:10:55
  SPEAKER_00: And now is the argument is percolated.
• 1:10:56
  SPEAKER_00: I really think the texture argument is quite solid on behalf of the Trump administration, you know, but for that kind of history of IRERA and so on, which is trickier.
• 1:11:05
  SPEAKER_00: But so well, hopefully our listeners have enjoyed the deep dive.
• 1:11:09
  SPEAKER_00: And um, we I guess we'll see everybody next week.
• 1:11:13
  SPEAKER_00: As always, like, subscribe, send us comments, subscribe to our Substack so we can stay in touch with you and we answer subscriber questions sometimes on air.
• 1:11:22
  SPEAKER_00: Uh so please uh consider all of that.
• 1:11:24
  SPEAKER_00: And uh hope you enjoyed the deep dive into mandatory detention.
• 1:11:27
  SPEAKER_00: See you next week.