Will SCOTUS Join the GOP War on Mail-in Ballots?

23:40He's even 50-50 among rural voters in the poll. The guy is wildly unpopular. And every time he does something like that, he becomes even more unpopular. And so while I think it is vile and disgusting, I'm glad people are seeing who he is because they are recoiling in response. Yeah. Okay. All right. Well, as ever, like actually a very positive spin on something like truly ghoulish. And so, yeah, I'll take it. We got a decision from the Eighth Circuit on mandatory detention that I wanted to mention. The Eighth Circuit is like sort of like quietly mounting this campaign to edge the Fifth Circuit out as America's worst circuit court.

24:19And in this case, the Eighth Circuit reversed a district court and joined the Fifth Circuit in upholding an administration policy change that purports to require detention instead of bond and release for non-citizens arrested in the U.S. This has never been the practice. It is an insane and unadministrable rule. And there is an en banc petition pending the Fifth Circuit challenging this conclusion. It seems like only a matter of time before this question goes up to the Supreme Court, so we're going to keep an eye on that. And another kind of immigration and court-related development. Last week, the court added two cases to its docket.

24:51And this is kind of the latest installment in this trend of taking cases that come up in an emergency posture, but the court then sets them for argument instead of resolving them on the shadow docket. And at issue here is the administration's attempt to end temporary protected status or TPS for Syria and Haiti. So the court granted cert before judgment in these cases and set them for argument, but without granting stays, which is strikingly different from its disposition of earlier TPS cases involving Venezuela. So that was like a big windup. Ian, there were some TPS designations when we were government lawyers.

25:23This is something presidents have long done. Can you just remind listeners of what the designation means and then just briefly what the case is about and the significance of the court setting them for argument this spring? Yeah, so TPS stands for Temporary Protected Status. It's a humanitarian designation that Congress created for people who are already in the United States, whose home countries have become too dangerous or unstable for them to return to safely, right? So there's earthquake or war or systemic violence. So the Haiti TPS designation goes back, I think, to the earthquake in 2010, you know, killed hundreds of thousands of people in Haiti.

25:59And the United States government, as you and I remember, going through sort of a process of applying the congressional statute to say, hey, have the standards here been met to say that the conditions in these people's home countries are too dangerous or unstable to safely force them to go back? in which case we will basically grant a humanitarian relief and say, you can stay here until those conditions stabilize. And while they're here, you know, let's point out, these are people who are working, they're paying taxes, they're raising families. Oftentimes they were here legally, right, at the time that the disaster struck, right?

26:29So you can see a situation where you're a United States citizen, you go overseas on a vacation, on a visa to work temporarily, and then some catastrophe happens back home. And it's basically the other countries not saying, oh, yeah, you got to go back there in the middle of chaos. It's like, no, we'll let you stay here for a little while until things stabilize. And in these cases, the Trump administration basically just was revoking these things. And what I think the courts are looking at here is like, were they doing it because, as you and I saw, there'd been an actual analysis about whether the conditions had changed in Haiti?

27:01Because I'll tell you, the conditions in Haiti have not fundamentally changed. It is still an incredibly unstable, chaotic place to go back to. Or were they doing it for some other reason? And I think what the court is sort of signaling here, and I think this is a trend we're seeing, you know, in all the things that we're talking about, is it looks like this designation was made for reasons based on animus, right? That's what the lower court basically found, that, you know, that Trump and the administrations talk about, you know, Haitians, Haitian immigrants eating dogs and cats and all this, like, vile, disgusting stuff suggests that actually what's going on here is not an analysis of the facts and applying the congressional statute.

27:40But just, again, sort of like what we saw from Secretary Hags have just racism. And I think it's notable that the Supreme Court in this case is keeping the lower court decision in place, unlike what happened with the Venezuela decision that went up. Ryan Goodman has written a really wonderful piece over at Just Security talking about the presumption of regularity. This notion that courts traditionally assume that when the executive branch acts or says something, that it's acting in good faith. It presumes that there's probably something to it, right, that it's at least honest. And what Ryan and Just Security start documenting is that in case after case after case, that's just not the case, that the administration is not acting in good faith.

28:23Look at the, you know, when we talk about the policy we just talked about where the Southern District basically said we were misled by DHS. And the courts are starting to be like, maybe we can't take the administration in good faith. And I wonder, you know, maybe this is me being hopeful, that the shift in the courts handling the Venezuela TPS to the Haiti-Syria one is the court saying, you know, we're not going to give the administration the benefit of the doubt here. We're going to leave this protection in place so nobody gets sent back to a horrific situation in the home country until we can actually consider this on the merits.

28:53Yeah, and I think also the criticism of the shadow docket is landing to some degree. So, you know, it is better for them to set for argument a really important question like this. Although also doing it on this really like expedited timeline just means that in one of the cases, it's like an oral order being challenged. They don't even have an administrative record in the case, but it is still better than overriding these careful district court opinions on the shadow docket with zero reasoning. So I guess a tiny, tiny bit of credit we're due. Two more news items to flag. One, we learned this week that the federal government, funded, of course, by taxpayers, has agreed to pay$1.25 million to one Michael Flynn, a former, of course, Trump national security advisor, pleaded guilty to lying to the FBI about conversations with a Russian diplomat.

29:38He later filed a civil lawsuit alleging wrongful prosecution, and this is the result. This, Ian, I don't know if you've listened to our last couple of episodes, but this is what Leah has been referring to as a deal, though. And I think it's pretty ominous as a signal of what is to come in the multiple lawsuits, including a$10 billion suit that Trump himself has filed against the IRS, which people sort of shrugged and laughed at. But like is an actual lawsuit that Trump has filed and his Justice Department like is going to respond to in some fashion. He also has a separate claim of his own, sort of like Flynn's arising out of the investigation into him.

30:10And then finally, just want to mention some pretty ominous but also nonsensical Trump rhetoric on judges just a couple of days ago. So I want to play a clip from something that Trump said on Wednesday during a meeting with congressional Republicans. The time has also come for Republicans to pass a tough new crime bill that imposes harsh penalties for dangerous repeat offenders, cracks down on rogue judges. We got rogue judges that are criminals. They're criminals. What they do to our country, the decisions that they hand down and hurt our country. Ian, what is he talking about slash communicating here?

30:52And is this another example of what you were talking about with sort of the Mueller episode, which is, I mean, this is like really scary and horrifying rhetoric, but that there is some utility or value in people sort of seeing it and hearing it all laid out? Yeah, I mean, look, autocrats have a pattern of what they do around the world, which is that they use the power of the government to retaliate against anyone, people, institutions that they perceive could stand in the way between them and total power and total control. and they intimidate those actors, those institutions. And by doing that, they create a climate of fear.

31:26And in that climate of fear, people decide to engage in what Tim Snyder has referred to as anticipatory obedience, right? Stepping back and not challenging power. And not just, you know, anyone, but institutions. Because as you and I know, institutions are not marble buildings with ionic columns outside. They're the people inside them. The Supreme Court is nothing without John Roberts. And when people are afraid, When Lisa Murkowski is saying we're all afraid up here, when former Senator Romney is saying that he spoke to members of Congress on the floor of the senator of the House who said they were voting the way they were voting, not because they thought it was the right way to vote, but because they were afraid for the physical safety of their families, then institutions fail to check power and power gets consolidated.

32:08And that's what Trump's doing here, right? He is threatening judges with criminal prosecution. When he names them, they get death threats from his thugs and mobs out there. And he's trying to get institutions to step back and not do their jobs. But here's the thing. You also see around the world that there's a virtuous cycle that can reverse that vicious cycle, which is when you see brave sort of actors willing to stand in the face of that fear, not engage in anticipatory obedience and challenge that power, whether those are litigants going into court, whether those are citizens going into town halls and holding the representative's feet to the fire, or frankly, whether those people are Alex Priddy and Renee Good, who model for everyone what it looks like to stare down the face of authoritarianism and demonstrate how not to be afraid.

33:00And in that case, make an incredible ultimate sacrifice for the American people. But when they do that, when people like that do that, and they're backed by a broad and diverse coalition of the rest of society, and we saw this in Minnesota, right? After the horrible killings of Rene Good and Alex Prudy, you saw 70 ,000 Minnesotans brave negative 14 degree weather to get out there and get their backs. And when you see that, when you see hundreds of businesses shut down, people pull their kids out of school, the entire state of Minnesota say, we're going to get their backs. Then all of a sudden the cloud of fear lifts and the people inside institutions feel that they actually can do their jobs.

33:37And that's when you see Congress doing its job and the courts doing their job and then power gets disrupted. And so there is a cycle out of this, but make no mistake, what Trump is trying to do here is he is trying to use fear and intimidation to get institutions to not play their checking role. And it's our job to reverse that cycle. And look, I'm confident that we as a country are up to it, that we are doing it, that brave people are leading the way, that everyone else is getting behind them, and we'll do it here, even as he rattles the saber as the way he is doing. And, you know, the other Achilles heel that he has is just the incredible corruption, which is animating people to get out in the streets.

34:13And, you know, as you note, he's treating the American tax fund as a personal piggy bank. And if there's one thing that brings autocrats down around the world, it's when that corruption just exposes them as the grifters that they are. Right. Because, you know, obviously the country's divided on a lot of things, but corruption is a pretty unifying question. People really, really don't like the kind of rank corruption that we are seeing right now. And I think we are only seeing some of it. So as more of it is exposed, I think that the reaction will sort of reflect the displeasure. And let's use this moment to note not just what you note, which is the sort of what Leah calls the dildo, right?

34:52Which is one version of the corruption. You use that properly, Ian. Yeah, thank you. I'm trying to channel that here, right? The dildo. I'm going to challenge Leah when she comes back to come up with a phrase for the other form of corruption we're seeing right now a lot of, which is every time Trump says something or the administration does something, especially with respect to Iran, the Strait of Hormuz, you are seeing massive movements in prediction markets where it looks like people either inside the administration or friends or connected to the administration are betting massive amounts of money, seemingly knowing what Trump is going to say or do and making enormous sums by the leaking of this confidential information.

35:32So, Leah, when you get back, we're going to need a phrase to capture that level of corruption because it is absolutely insane, the level of corruption happening there. Yeah. And I'm glad you brought it up, and we just sort of have to—cannot emphasize it enough. So we're going to turn to the Supreme Court, and we have a lot of SCOTUS to cover. I'm going to just briefly mention the two opinions that we got last week. None of the very biggest ones we've been waiting for, but first, RICO v. United States, the court in an 8-1 opinion authored by Justice Gorsuch, held that an individual who absconds during a term of supervised release doesn't thereby extend their term of supervised release.

36:03There might be other ways of dealing with individuals who violate supervised release terms, but automatic extension is not one of them. And then Cox Communications v. Sony, a Justice Thomas opinion for a unanimous court that sided with internet service providers against music labels and publishers who had said that those providers hadn't taken sufficient steps to guard against and also respond to the downloading and distribution of copyrighted music. Okay, lots to say about those, but we have no time. So we're going to move on to oral arguments. And we're going to mostly talk about Watson v. RNC, a challenge to a Mississippi law that allows the counting of ballots cast by election day so long as the ballots are received within five days of election day.

36:42More than half of states allow at least some counting of ballots that arrive after election day. So obviously this case is about much more than just Mississippi. The challenge was brought by the RNC and the state Republican Party. And in the Supreme Court, they were joined by the Trump Solicitor General, also again, arguing against the Mississippi law. Ian, what argument are they making against this Mississippi law? Well, I'm going to do my best to give you their argument, even though it's entirely bunk, but I'm going to do the argument. They're basically saying that there's three federal statutes from the late 19th, early 20th century that basically say that elections for presidential electors, for Senate and for the House shall be held on the first Tuesday after the first Monday in November, what we know to be election day every two years.

37:28And what the RNC is basically saying is that means that all ballots have to be completed, cast, received by Election Day, because Election Day means nothing can happen after it. And therefore, any ballots that are received after Election Day are in violation of that statute and can't count, even if the states make a provision to do that, which Mississippi did during COVID, right? Because during COVID, some states already had provisions that allowed for mail ballots to be received after Election day as long as they were cast and mailed and postmark before election day. But some states like Mississippi made that adjustment during COVID.

38:06And the RNC is saying, no, you can't do that. And you said, Ian, what we colloquially know is election day. And that's what this is about. But actually, the statutory term is the day for the election. And that's the first Monday after the first Tuesday in November every other year. But that somehow the day for the election preempts by its own force all of these other state laws that, you know, provide in various ways for people to be able to vote in response to lots of different background conditions. And it just seemed as a textual argument that like these spare words preempted just like massive numbers of state laws just seems so atextual and also in such tension with the Constitution's basic allocation of authority to the states to act as the primary regulators of elections that the initial challenge wasn't taken very seriously by a lot of people, like including us on this podcast.

38:52It seemed like even the Fifth Circuit wasn't going to embrace this outlandish argument. But alas, it did. And even more concerningly, there was just like much more openness to this argument last week than I expected. What were your top line reactions to the argument sort of with, you know, kind of the stipulation which we share, which is that this is a bad and borderline frivolous argument? Was I alone in thinking the court was pretty open to it? Yeah. So I don't think you're alone in thinking that. And so for listeners, let's sort of break it down this way. So the three liberal justices, Kagan, Sotomayor, and Brown Jackson, were clearly opposed to the RNC's argument.

39:33And the three kind of wildly crazy right-wing justices, Alito, Thomas, and Gorsuch embraced pretty much clearly the argument. And so, as with a lot of cases, the question is, what are Kavanaugh and Roberts and Barrett going to do? And that was the question. I think of the three of those, the one that seemed most open to the RNC's argument was Brett Kavanaugh. I think that Barrett and Roberts were a little cagier and harder to see where they're going to go. So, bottom line is, I don't think we know how this is going to come out. Now, I share, however, your reaction of like, but this is not a hard case, right?

40:07So as you know, first, just start with basic constitutional principles, which is the Constitution allocates to Congress the ability to set the time, place, and manner of elections. And then everything else is delegated to the states. I would even put it differently. It gives the states the power of the time, place, and manner, and Congress can override. Congress can override, right. With federal elections. That's right. And Congress enacted these statutes back in the late 19th, early 20th century to solve for two problems, basically. So problem one was back then when there wasn't a national day that elections were held.

40:39You had Ohio holding elections on one day. You had New York holding elections on another day. And by holding them, like Ohio held its election. Everyone voted. They announced the winner. And then the people in New York knew the result in Ohio. And it influenced how people in New York were voting. That was one problem. The other problem you had is that people would go vote in Ohio. Not a lot of people, but there was a concern. Some people would vote in Ohio and then maybe honestly, like, then move to New York and then the election was held in New York and they would vote in New York, so-called floaters is what they were called.

41:09And so Congress basically didn't want that to happen. And so they said, like, let's basically do this at the same time. Interestingly, and this is really core to the argument, is during the Civil War, the the union states allowed for soldiers serving in the Civil War to cast mail ballots and allowed for those mail ballots to be received after the, you know, sort of the day of the election. And Congress was fine with that. Congress didn't address that at all. When it passed its statutes that we were talking about, it didn't address that at all. And then more recently and more importantly, and we actually, with the Campaign Legal Center, filed a brief in the case making this point, which is we in the Campaign Legal Center were intimately involved in helping Congress enact what's called the Electoral Account Reform Act in 2022, which was a piece of legislation that Congress passed on a bipartisan basis.

42:02President Biden signed into law that tried to correct for some of the ambiguities in the original Electoral Account Act, which President Trump in 2020 tried to use to say things like Mike Pence, the vice president, can decide the election, right? That obviously was not true, but the statute was poorly drafted. And so a bunch of senators got together and said, like, let's clarify the statute. So in 2022, after the election of 2020, Congress looked at all of this, looked at states that were allowing ballots to be cast before Election Day, received after Election Day, and was totally fine with that.

42:34Could very well have fixed this problem and said nothing. Or if it thought it was a problem. It didn't think it was a problem. Didn't think it was a problem. And importantly, now let me get to your kind of alarm of the case, is what was alarming about the case is you had Justice Alito and Justice Kavanaugh basically channeling Infowars, right? I mean, they were basically saying, well, wait a minute, there's like all this concern about sort of like rampant mail ballot fronts. Like, no, there's not all this concern about rampant mail ballot front. There's a president who lost the election and is making up conspiracy theories to soothe his ego about it.

43:10And that's being trumpeted in kind of the corners of right-wing media. And Justice Alito and Justice Kavanaugh are taking that right into their veins and then using it as justification for sort of constitutional and textual interpretation. When if Congress was concerned about that after the 2020 election, it had the opportunity when it passed the ECRA to address it, and it didn't. And that's pretty much game, set, match, right? Congress has the ability to override states here. They didn't do so. Otherwise, states get to decide. End of story. Yeah, I totally agree. And I want to come back to play a couple of clips that do, I think, reflect this sort of brains having been pickled by sort of too much immersion in right-wing kind of media ecosystems that I think you're right that kind of Alito and Kavanaugh in particular seem to be afflicted by.

43:54But, okay, so let's maybe just drill down on a few key sort of themes that I think are implicit in what we were just talking about. And so you have a little text in a statute. It clearly doesn't, sort of in particular in the context of the history and the other statutes, in particular this 2022 Electoral Count Reform Act that you were talking about, Ian. But the text we have pretty clearly doesn't resolve this case. And so these avowed textualists had to kind of look elsewhere if they kind of wanted to at least float the possibility of siding with the challenge here. And so one thing they did was to turn to history, but not really the history, Ian, you were talking about, but a very sort of convenient and selective subset of the relevant history.

44:33So there was an acknowledgment that sort of elections today look very different than elections when Congress enacted the first of these laws in the 1840s and then, you know, the sort of subsequent laws in the ensuing decade and century-ish. But so the kind of selective use of the history included things like saying, well, the lack of history on absentee or mail-in ballots being counted after Election Day. So we don't have like a long history of this or an early history of this contemporaneous with the enactment of these early statutes, that that is somehow significant. But then the absence of history that is analogous to other common voting practices today actually doesn't matter.

45:12So think about things like the use of touchscreen voting machines or the secret ballot itself. Like we actually don't have historical practice that supports those practices, but there's no interest in challenging them. And actually here is I think maybe another kind of more on point sort of piece of selective reliance on history. And that is the lawyers all concede in this case that there is a common historical practice, which is to assess a voter's qualification at the moment they cast their ballot, like determining whether this ballot can be counted. But the federal government and the RNC are totally fine to allow the state to reject ballots after Election Day so long as the ballots are cast on or just by Election Day.

45:52So it's not clear why one, that is the casting, has to happen by or on Election Day, but the other, that is the challenging, can happen after Election Day if both were elements of kind of election practice at the time that the relevant laws were enacted. not totally clear. We also just got some, I think, pretty dubious characterizations of the historical record, in particular by the solicitor general, John Sauer, Sotomayor, really pressed on that. And then there's also something that I want to return to from an exchange that we already had, Ian, which is kind of changing the text or even inventing text.

46:22And that is on Alito's part. So, again, you know, the relevant statute, that sort of the key one that we're talking about, talks about the election being Tuesday next after the first Monday in November as the day for the election. So Sam Alito thinks he has this big gotcha question for the state. So let's play that clip here. We have lots of phrases that involve two words, the last of which, the second of which is day. Labor Day, Memorial Day, George Washington's birthday, Independence Day, birthday, and election day. And they're all particular days. So if we start with that, if I have nothing more to look at than the phrase election day, I think this is the day in which everything is going to take place and or almost everything.

47:14So, I mean, this maybe would be an OK point, not, you know, sort of a winning one, but maybe an OK point if the statute said election day, but it doesn't even say election day. It's the day for the election. I wish that I could give Sam Alito some friendly advice, which is if you're going to be really smug and cocky about your textual argument. It's best not to invent text. Thank you. From your lips to Sam Alito's ears. It's also the case that like, you know, election day, even if election day sort of were the phrase in the statute, like it just isn't the same thing as throwing out the phrase like my birthday, because I think in part, based on his idea that election day is just a day like these other days, my birthday, there pretty clearly couldn't be early voting either, which maybe he would be fine with, but like is, I think, a really, really important and I mean, maybe fatal outgrowth of the challenger's argument here, but maybe let's come back to that.

48:05Well, not to belabor Sam Alito's invention of the statute, but like even my birthday, right? I mean, Washington Lincoln's birthday is actually on one day and honored and celebrated on another day. We both know there's plenty of times when like the kid's birthday is on Thursday, but you hold the party on Saturday. So like even Alito's argument doesn't really work. Like we do all sorts of things. We're like, well, we're going to do this on this day and this on this day, even if the statute said what he said. But I want to linger for a minute on your point about early voting, which is, you know, this current challenge, the Watson challenge, there's 14 states in the District of Columbia that currently allow mail ballots that are postmarked before election day to receive it after election day.

48:44If they were to side with the RNC here, that's going to upend voting practices in 14 states. And to your point, it's very hard, and Sauer wasn't able to really do this in a real argument to distinguish why this argument wouldn't apply to early voting as well. And 100 million Americans vote early. You're talking about totally upending voting practice in this country. Let's just be clear. That's what they're trying to do. But important for listeners. However the case turns out, the best way to solve for whatever they decide is mail your ballot at least seven days early if you're mailing your ballot.

49:17And we need to start talking about that now because if they do upend this, I know we may want to talk about the Purcell point of this, if they do upend this mail-in voting, then the most important thing is going to be everyone's just going to have to cast their mail ballots in plenty of time for a derogatory election day. And that means at least seven days in advance. And we should start talking about that now. That's right. Because, you know, November is not that far off. And I would not put it past them. And we will kind of talk about Purcell. But to really fundamentally upend the way voting has been administered in a lot of states now for years.

49:48And if that's the case, like that has to be the response. But I don't want to go too quickly to the response and like let them off the hook for the kind of the truly insane thing that they are considering doing. And, you know, when it comes to kind of early voting, they, Sauer tried to do this, Clement for the challengers tried to do this, which is just to say, don't worry your pretty little heads about it. We're not challenging that here. But the logic of their argument doesn't allow us to put it to one side. I don't think, which is, I don't want to make the maximalist version of their argument for them, but I don't think that we can pretend that if they say election day is a day, then they can conveniently decide that that matters after the election, but not before the election.

50:20if it's a day, it seems like it's just one day. And that would throw, at least into question, the entire edifice of early voting, which is how many states, in particular in the West, like conduct the majority of their elections and an increasingly large number of us have voted now for many cycles. And so that they're even entertaining the possibility of introducing this kind of chaos, even in steps, even if not all in one fell swoop, is just like a stunning indication of, I think, the kind of unlimited hubris that afflicts this court majority at this moment in time, it's insane that we are even talking about this as a serious challenge.

50:55And maybe just to say kind of one more thing about the kind of epistemic universe that it's clear that some of the justices now inhabit, that is them sort of seeming like they're just kind of regurgitating MAGA talking points about voter fraud from the 2020 election. Let's just play a couple of clips that I think illustrate that point. So the first is Justice Alito. Do you think it's legitimate for us to take into account Congress's desire, Congress's passage of the Election Day statutes for the purpose of combating fraud or the appearance of fraud? And some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election.

51:59or, yeah. And here is Justice Kavanaugh. I think Justice Alito referred to, and I think this quote refers to the appearance of fraud. And is that a real concern? Is that something we should be thinking about? Confidence in the election process. Just curious how we factor that in here. So, I mean, I think we've sort of covered this, but just to be really, really clear, is there any chance these statutes passed way before Trump started poisoning everyone's brains somehow reflect this fraud fear? Or are they just trying to sort of use this, you know, 2020 election denial gloss to understand statutes that are about something totally different?

52:42Yeah. I mean, so first off, no. These statutes were not a response to the big lie, as we talked about earlier. These statutes were dealing with, like, unique problems from the 19th century. They had nothing to do with the big lie. And then more importantly, the argument the RNC is making isn't even responsive to an actual fraud problem today, right? There's just not any evidence, and the RNC didn't put forward any evidence, that there is some fraud problem with people who are casting mail ballots that are being counted, that are being received after election day, somehow allowing for fraud, right?

53:17There's just no evidence of that. So this is a solution in search of a problem, which is basically a lot of the sort of Trump kind of election corruption situation, which is they are inventing phantom problems and then proposing solutions to those phantom problems that just so coincidentally are designed to advantage the voters that they like and disadvantage the voters that they don't like. And the fact that the judiciary is now basically being co-opted into this sort of big lie architecture is, I think, a notable and troubling development. Because really, you know, you have a six justice, very conservative majority that, you know, going back a couple of years ago was a six justice majority that was conservative in the ways that we would define that term in sort of the pre-2016 era, like hyper-federalist society, very much on the far right when it came to issues of gun rights and abortion and, you know, sort of environmental regulations, but they generally weren't MAGA, Trumpist, kind of autocratic populists.

54:24And now you're starting to see, certainly with Alito and Kavanaugh in the clips that you played, that I said before, institutions aren't marble columns with ionic columns outside. They're the people inside them. And you know this, you clicked on the court. The justices are actually human beings. I know sometimes it's surprising, but indeed they are actually human beings and they live in the world and they sit in the soup of our culture. And some of them, Sam Alito and Brett Kavanaugh, sit in the soup of the right-wing Trumpist movement that is now curdling, as you put her, pickling the brains of so much of this country.

54:59Remember, Sam Alito's hanging an upside-down flag outside of his house on January 6th, right? They're living in this world and you're starting to see them shift from pre... Well, Alito's been long there, but Kavanaugh shift from pre-2016 conservatives to Trump-maga conservatives. And that is a notable development in terms of where the court is. Okay, first, I have to correct her, Martha Ann Erasure. She was actually the flag hanger, not Sam Alito. But it was the Alito, it was House Alito. Yeah, and I think you're right about the sort of what we have seen in terms of the evolution of Brett Kavanaugh has just been like incredibly disturbing and really, you know, stark in the last few years.

55:36So the fraud, you know, the kind of manufacturing of this fraud objection so that you can then offer a solution to a non-existent problem There's many troubling things about it. But also one thing that's troubling is that there's also this suggestion that it's not even necessarily just about fraud, but somehow the kind of like appearance of fraud, which is self-fulfilling if they're going to suggest that that is a legitimate thing for people to fear. But they suggest that confidence will be harmed, confidence in election outcomes, if, you know, there's going to be some change between the apparent winner on Election Day and the ultimate winner after kind of counting happens.

56:08But their theory doesn't even actually address that because they're not challenging the counting of ballots received on or by Election Day, which many, many states do. And maybe that's another sort of like second order challenge they might bring. But right now, their theory doesn't even address that problem. And so, again, just seems like a cover to disenfranchise voters that they think are not going to be their people. Look, if the Supreme Court wants to build confidence in elections, it can come out and say, all this big lie nonsense is bunk. You don't need to believe it. That would do it. Yeah, that would be really awful, but I'm not going to hold my breath for them to do that.

56:50Okay, a couple more clips I want to play. One, here is Justice Kavanaugh basically making clear that the kind of the meanest thing you can do, this is a sort of like recurring bit here, is to sort of call something what it is, and that is to call disenfranchisement disenfranchisement. So let's play that clip here. Would you say that the states that require receipt by Election Day are disenfranchising voters? No, you're not. They're not, Your Honor. I mean, a reasonable ballot deadline does not do that. I would asterisk just there are the practical barriers for those overseas military voters. But for the citizens who are not within that class, you would not use the term disenfranchisement to say it has to be received by Election Day, November 3rd, rather than I guess it would be five business days, November 10th.

57:37You would not use that term to describe that, correct? And I'm going to just try briefly to channel Leah's reactions to the repeated invocation of kind of consummation of an election. So I'm going to, again, channel Leah by voicing her coining of the phrase the consummation court, which is just way more than just the tip court. And I guess we'll just leave it there just to say that they are making sort of puns and innuendos just kind of too subtle. They're just like right out there and talking about consummation. Let me briefly ask about Purcell, which Kavanaugh asked about, and that is the case that's understood to create a rule against changing election procedures too close to an election.

58:15Might that be a problem for a ruling that really changes election administration that comes down in June and would go into effect for the November midterm elections? Kavanaugh asks. Last one. If you were to prevail here and say our decision was issued in June, Purcell issues with the states for the upcoming fall elections? I don't think so. I think this issue, because it really sort of just deals with the state and the receipt of the ballots, I think June would give them plenty of time. And remember, it only affects the this this issue only affects the general election. It doesn't affect primaries.

58:53So like the only thing I can even think of that would raise like a lurking problem is you wouldn't want the states. If this court decides in our favor, you wouldn't want a state absentee ballot that's misleading about the receipt deadline. But those deadlines, those ballots have to go out 45 days before the general election. So what's that, like mid-September or something? So there's plenty of time. I don't think there's a Purcell problem. Thank you. So Kavanaugh doesn't seem to disagree. Like, Ian, what did you make of that? Look, Purcell is one of the most nakedly results-oriented doctrines in modern election law.

59:24And, you know, this exchange really crystallizes it. I mean, the rule is basically supposed to be don't change election rules close to an election because it creates confusion and disrupts voters. But when you watch how the court actually applies it, there's a very clear pattern. It's always too close to an election to protect voting rights. It's never too close to an election to restrict them. And that's pretty much how this comes down. Another partisan gloss on it is just like it's, you know, it's never going to be a problem if it's going to help Republican candidates and it's always going to be a problem if it's going to help Democratic candidates.

59:54Either way, like disenfranchisement of the population like should be something that Supreme Court cares about and it does not seem to be a particular motivator. There's also this, I thought, real asymmetry in terms of the concern of the justices, not just sort of from the Purcell perspective, but kind of, you know, the implications of actually embracing kind of the party's theories as sort of some of the kind of, you know, consequences or sort of slippery slope issues that we've been talking about. Here's what I mean by that. So at various points, the justices came up with hypos that would result from adopting Mississippi's position that, you know, they are allowed.

1:00:26Gorsuch was really into his hypos. Yeah. Oh, my God. There's this fixation that Gorsuch had in particular on this idea of recall. Like what if people who mailed their ballots in requested them back after Election Day and then re-sent them in? I gotta say, Gorsuch lost it. I mean, he was making up all sorts of weird things about the cookie monster eating ballots. And like, I was like, what is this guy talking about? Like, these are not actual things happening in the world. These are not, there are things out there. This is not one of them. So let's play just a few of kind of Gorsuch and fixating on this recall issue.

1:00:57I want to ask you about the recall problem. That doesn't preclude recall. Where does it say recall's not permitted? If recall could happen, that would be a problem for your position. So somebody, my hypothetical happens and everybody recalls it, their ballots. Would it be illegal for a state to permit absentee voting, but permit recall? Is it possible for a portion of Mississippi's statute to be unlawful? Not just, just go with me here. A portion of Mississippi is statute to be unlawful insofar as it potentially permits recall. OK, so we'll stop there. But actually, there were more. That was a subset.

1:01:35And again, to be clear, this is madness. It doesn't happen in Mississippi. Law doesn't allow it. This apparently didn't even come up until very late in the litigation. Other absurd hypos like this one. Why can't a state say, how about a timestamp video showing that I voted on Election Day? Here I am filling out my ballot and then my brother or maybe some aggregator of ballots brings it in a week or three later. As we saw, they were very concerned with these outlandish possibilities that would sort of follow from embracing Mississippi's theory. But when it came to the kind of implications of embracing the RNC and the federal government's theory, they just sort of dismissed and brushed aside these very serious questions about whether the theory would call into question early voting.

1:02:18since at least according to Sam Alito, election day is one day. You know, we've already sort of covered this, but I just really worry that they could say something here that in the next case, like, allows for a successful challenge to even early voting, which would just dramatically change and reduce participation in elections. I mean, look, that's clearly where the implications lead. But I think the more important point here is that the justices shouldn't be involved here, right? As we said before, the state set the time, place, and manner of elections. Congress has the choice to override it.

1:02:51There's no role here for the justices. And I think it's illustrated by the fact that they have no idea what's actually going on on the ground. And so Gorsuch's hypotheticals were like in la-la land for anyone who actually is involved in running elections. The justices just really don't know how this works. and their complete detachment from the fact that there's actually no fraud that's been documented with respect to mail ballots that are postmarked before election day received after just suggests they're so distant from the facts on the ground that they're just not in a very good position to assess any of this.

1:03:22So they end up talking out in left field. And that's why they really, there's just no role for them to play here. Congress has a role. As we said in a brief, Congress had an opportunity to deal with this. It didn't. That's it. End of story. Leave it to the states. If the danger, as we've been talking about, this case is at least in part that it reveals and kind of might further baseless narratives around early voting and fraud. It also clearly connects to broader themes regarding the upcoming midterm election. And as I mentioned up front, Protect Democracy just came out with a pretty alarming, but I think really important report on that.

1:03:55So can you just talk about that for a little bit, Ian? Yeah, I mean, look, we're living in an era and a moment where authoritarianism is on the rise around the world. Obviously, we're experiencing it here at home. And what you see is a very clear pattern across the world where autocrats do seven things everywhere to dismantle democracies, right? They politicize independent institutions. They spread disinformation. They aggrandize power in the hands of the executive. They quash dissent. They scapegoat vulnerable populations. They stoke violence. And then, of course, they corrupt elections, right?

1:04:28They hold elections, but they tilt the playing field so that elections are no longer free and fair, and they basically guarantee a predetermined outcome of entrenching the autocrats in power. And we've obviously seen attempts at that here in the United States, right? January 6, 2021, where Trump refused to accept the results of an election and cited a violent insurrection on the Capitol. And there's a pattern here to how Trump does this. And I think we should anticipate that that is going to play out here. And that pattern is to invoke Sesame Street in the letter of the day. The letter of the day is D.

1:04:59Okay, there's three D's here. It's deceive, disrupt, and deny. And that is the president's playbook. And, you know, we saw in January, we saw in 2020, was when the president lost that election, he tried to deceive people with the big lie into thinking that the election was stolen, right? That they were, they were stealing the election in Philadelphia and Milwaukee and Detroit. You had to shut down vote counting. But he actually only persuaded that 28 to 32 % of the population with his big lie immediately when he said it, according to snap polls taken at a time. Now, on the one hand, that's actually an alarmingly large number of people.

1:05:31But on the other hand, it wasn't enough. Because in our decentralized system, where there's no national election authority, a president can't steal an election on their own. Thanks to the founder's vision, we have thousands of elections around the country. And if the president wants to steal an election, the president needs accomplices throughout the system. The president needs secretaries of state, governors, members of Congress, judges, county election clerks. And after 2020, when the president claimed the election was stolen, tried to deceive people into thinking that and reached out to all these accomplices, Brad Raffensperger, the Republican leaders of the state assemblies in the blue wall states, the federal courts, all of them, with the exception of 147 Republican members of Congress, said, yeah, no, yeah, there's no, we're not going to do that.

1:06:17And so the president understands that he's got to up that number of people who think that there's something corrupt going on in order to get accomplices willing to actually join him and try to steal the election. So he's going to engage in deception. He is going to try to convince people that there's something wildly untoward here. He's going to, you know, they're seizing ballots in Fulton County. They're going to come out at the sixth sense and say, we see dead people on the rolls. You're going to see Nicolas Maduro cop some plea saying Venezuela interfered. You're going to see also, you know, releasing of, you know, Tulsi Gabbard conspiracy theories saying, you know, there's dead Chinese voters on the rolls, all this stuff.

1:06:51that's going to be to convince people there's something wrong so you can enter the disrupt phase, which is where the president's going to try to get these accomplices to change rules to tilt the playing field. He's trying to do that with the RNC in the case we just talked about. They're trying to do it by getting the Senate to pass the SAVE Act. He's going to lean on states around the country to change their voter roll and voting practices. That's the disrupt. And if that doesn't work and the election still turns out the way the president doesn't like, then the deny phase happens, where the president is going to basically try to deny the results.

1:07:23So that's the three Ds, deceive, disrupt, deny. We should expect that to play out over the next couple months. But there's a fourth D, and this is the good news. The fourth D is defeat it, which is what we're going to do, because we've done it before, right? The president tried this in 2020, we defeated it. There was a microcosm of this, as you may recall, in North Carolina in 2024, where there was a state Supreme Court race that the sitting justice, Alison Riggs, won by about 725 votes. And the loser, Jefferson Griffin, tried to say, yeah, that's not the result. He actually said the rules that were in place that we all agreed on were actually not the right rules.

1:08:01We should change them. I coached like six Little League teams in three different sports of like five-year-olds and nine-year-olds. And not once as a kid on one of those teams at the end of a game that we lost said, actually, the rules were wrong. We should go back and change the rules. If we change the rules, we would have won because even a five-year-old knows that you can't do that. But Griffin tried to do it and we defeated it there too. So the president's going to try to deceive, disrupt, and deny, and we all are going to defeat him. Okay. So then I'm going to ask you one final question. You know, there was obviously a note of optimism and I want to ask you to kind of elaborate on that and take a sort of broad view for our listeners of kind of where you think we stand 14 months into this administration in the fight between democracy and, you know, call it autocracy or authoritarianism.

1:08:43Yeah. I mean, look, here's the thing. in order for an autocrat to take over a democracy, particularly one as robust as the United States is, they have to consolidate power before they become unpopular, right? Because with our division of powers, the separation of powers at the federal level, the federalist separation between the states and the federal government, a president can't just take total control like that because the founders built a system that was designed to check exactly that form of tyranny. So the president needs to co-opt all of these other branches, all of these other actors as part of his project.

1:09:14And, you know, the president had a real opportunity to do that after the 2024 election. Even though he won a very, very narrow victory, you could feel it in the air in early 2025 that the general direction was, oh, my God, this guy is all powerful. The country's going that direction. And you saw all these institutions basically just hand him the keys and say, we will do whatever you want. And he had this opportunity to consolidate power. And I think he fundamentally squandered it. He basically interpreted a victory that was not even a majority of voters in 2024. He would have lost the election but for 230 votes in three states.

1:09:50And he acted as if he had a 60 % majority mandate. And he just did things that were wildly unpopular. And he actually became unpopular before he had finished consolidating power. And as we said earlier, according to that Wild Fox News poll, he's wildly unpopular. And so you are now starting to see the institutions say, yeah, we're not going to go along with it. I mean, the Senate right now is refusing his demand to pass the SAVE Act. At the time that we're recording this, the Senate has basically funded all of DHS except for ICE and CBP. They are just no longer, the institutions are no longer doing en masse what the president wants.

1:10:27He has become unpopular before he consolidated power. And that is the death knell, I think, for Nauticat trying to take over. So fundamentally, I think we, and by we, I mean the forces of democracy and freedom, we are going to win. We're going to win this battle for democracy in this country. I fundamentally believe that. We're going to win it because we're right. We're going to win it because the facts and law on our side. We're going to win it because freedom is a natural human condition that people want. And we're going to win it because the autocrat here is pretty incompetent and made the mistake of becoming unpopular before he consolidated power.

1:10:58But you can track this. You're going to want to know if this is true tomorrow. We just put something up on our Protect Democracy website, the Authoritarian Action Watch, which is like kind of the weather app. If you wake up in the morning, you're like, what's the weather today? It's a new thing on the site where you can check, like, what's the weather today in terms of whether democracy or authoritarianism is ascendant. So go on the protectdemocracy.org website and bookmark it. And if you want to get even nerdier about it, and I know all of our strict scrutiny listeners want to do that, you can subscribe to our newsletter, ifyoucankeepit.org, where our team is updating you on this battle between democracy and authoritarianism on a regular basis.

1:11:33And you can hold me to my word. We're going to win. I love this. So when you're deciding whether you need to bring your authoritarianism umbrella out with you when you leave the house in the morning, like check the app to figure out how the weather's going. That's right. Is the hard rain going to fall or not?

1:11:49We're going to take a quick break, but I'll be back with Elora Mukherjee.

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1:16:17For the second half of today's show, I'm delighted to be joined by Elora Mukherjee, who directs the Immigrants' Rights Clinic at Columbia Law School. We're going to talk about the arguments the court heard last week in an important asylum case and then turn to the birthright citizenship case, which will be argued on Wednesday. Allora, welcome back to Strict Scrutiny. It's great to have you. Thank you so much for having me, Kate. First up, we're going to talk about Mullen versus Al Otro Lado. That at least is what the case will be called when it is decided, because if you listeners missed it, Mark Wayne Mullen was confirmed last week as DHS secretary, even without the support of Homeland Security Committee Chair Rand Paul.

1:16:50In this confirmation, the deciding votes came from two Democratic senators, John Fetterman from Pennsylvania and Martin Heinrich from New Mexico. Also, Mullen voted for himself, like for his own confirmation, which I hadn't even noticed. But like, how are they allowed to do that? That is a rhetorical question, not one for you, Elora. Okay, so back to the case with the new caption. Can you briefly remind our listeners what the case is about? Sure. So this case is about whether the United States will continue to fulfill its promise to be a beacon of safety for asylum seekers. In the wake of World War II and the horrors of the Holocaust, Western nations promised never again, that we would never again return people fleeing to the United States and other Western countries to be persecuted, to be killed based on their race, religion, nationality, membership in a particular social group or political opinion.

1:17:43And Western nations made those promises to one another through the Refugee Convention of 1951, the UN Refugee Convention, as well as the 1967 Protocol, which expanded the Refugee Convention's protections to people around the world. And that promise was later codified into U.S. law with the passage of the Refugee Act in 1980. And at issue in Al Otro Lado is what happens when an asylum seeker comes to a port of entry in the United States. That means an official border crossing. If an asylum seeker expresses fear of persecution on account of one of the five protected grounds recognized in both domestic law and international law, will they get a basic fear screening?

1:18:31It's not a guarantee that they would be allowed to stay in the United States, but just a basic threshold screening. Or can the United States completely block an asylum seeker from making any fear claim in the United States at all? I'm so glad you started there because that, I think, kind of the historical and international background is critical here. And despite the valiant efforts of Sonia Sotomayor to remind everyone during this argument of that backdrop, that felt a little lost on some of the justices during this argument. But that really is what is at stake, this commitment made through a treaty and protocol and federal statutes to facilitate the at least making of claims of asylum against the backdrop that was the horror of the Second World War.

1:19:18So that really is what the case is about at a broad level. And I think that context is just critical. The other thing you said at the end that's so important is really all that's at stake is not whether people have to have their asylum claims favorably adjudicated, whether they're going to get to stay long term in the United States, just whether they will be able to, at the threshold, make a claim of asylum. And that is just an enormously important question kind of under international law and norms and also as a matter of U.S. statute. So how then, in terms of the kind of statutory implementation of these background principles, like what does that look like?

1:19:53And sort of what are the justices debating in terms of the kind of statutory question in the case? Right. So for decades, the United States has offered people at the port of entry a basic fear screening as required by domestic law and international law. So about 10 years ago, this practice changed. So in 2016, there was a rise in the number of Haitian asylum seekers at a port of entry called San Isidro, which is just south of San Diego and at the border of Tijuana in Mexico. And in 2016, the Obama administration implemented what it euphemistically called metering, which meant that instead of being able to approach a port of entry and seek a basic fear screening, an asylum seeker would instead be turned away indefinitely.

1:20:41And they were turned away indefinitely by armed CBP agents, Customs and Border Patrol agents, as well as Mexican immigration officials. And in 2017, this metering policy was expanded across the southern border by President Trump's administration. And in 2018, it was distilled into a memo, a policy memo that made it official government policy to engage in metering. And that is what Al Otrolado, the plaintiff organization in this case, is challenging. And the statutory question here is, what does it mean to arrive in the United States? And justices had different views on what it means to arrive in the United States.

1:21:25A number of the conservative justices suggested an oral argument that it means that a person must actually set foot in the United States. And what the more progressive justices said is you can't set foot in the United States at a port of entry because the ports of entry are blocked. And simply going up to a port of entry and asking for asylum should be sufficient to satisfy the arrive the in the United States standard. So super helpful context and also a reminder that this is actually something that is not just a Trump administration innovation. This actually begins under the Obama administration and then is sort of expanded in the first Trump administration.

1:22:06And you mentioned arrives in. That's the kind of critical language in one of the statutory provisions that allows individuals to at least come in and claim asylum through this initial fear interview that you referenced as the first step, right? And then if there is a finding that they've made a threshold showing, correct me if I'm wrong, but at least historically, they're able to enter. And then a long process commences that may or may not ultimately result in their being granted asylum. Is that basically right? That's exactly right, Kate. And under a statutory change in 1996, those arriving at a port of entry and going through this credible fear process are subject to mandatory detention.

1:22:45So this is in no way a free pass into the United States. Just whether you get to step essentially across the border and start this long process that may or may not result in you getting to stay. Okay, so arrives in is, I think, admittedly kind of awkward phrasing, right? I don't think either side was able during the argument to make the case that that was like the ideal way to say someone shows up at the border, they have an asylum claim, right? That's not what the language of the statute is. It's arrives in. And as you were starting to allude to, some of the conservative justices, Alito and Gorsuch and maybe to a degree Barrett, really seem to be taking the position that arrives in must mean in, right?

1:23:24Like you're already in the United States, which would exclude people approaching a port of entry to try to kind of start this process. I thought Justice Kagan really forcefully made the case that if arrives in just means in, you've created a problem with like superfluity, right? This sort of legal term of art that just means, well, if arrives in means in, then arrives doesn't have any meaning. And we try to sort of assign meaning to every word in a statute. And so that's a problem. It's also a problem because there's another provision of the statute that governs applications for asylum by people who are already in the United States.

1:23:57If that was the mechanism for people already here to apply for asylum, what is this separate provision doing? So, you know, I think that all of that, because the language is just like a little bit unclear, kind of in isolation, it seems pretty inevitable, at least to me, that we have to turn to context, broader implications, etc. of adopting different readings. So maybe that was something that came up in the oral argument. We talked a bit about the backdrop, like what the statute responded to. But kind of what are the potential implications and consequences of adopting the kind of competing interpretations on offer?

1:24:30Sure. So if Justices Alito, Gorsuch, and Barrett's reading prevails, then asylum seekers would be blocked from having any opportunity to have a threshold screening. If instead Justice Kagan's view prevails, and I think Justice Kagan's reading is clearly the right reading of the statute, then people could have this basic threshold fear screening. And it's worth noting that since 1917, immigration law has been understood to require federal officials to inspect all non-citizens who present themselves at a port of entry, whether or not they have yet set foot on U.S. soil. So Justice Kagan's interpretation of the statute is certainly consistent with more than 100 years of practice.

1:25:17And I want to actually just play a quick clip from the oral argument in which you saw Justice Kavanaugh take a sort of surprising position in light of a position he had taken in Monday's argument in the Watson case. So let's play first that clip from the Alotrolado argument. On that question that you made a point on about why Congress would give better treatment to those unlawfully in the country, I guess one response to that, I just want to get your reaction, would be we should just interpret the rule in front of us or the statute in front of us by its terms and not try to figure out all the things that might be going on with people unlawfully in the country to try to make it all fit in some perfect world.

1:26:04Rather, we should, you know, there are lots of issues with people who are unlawfully in the country that but the only issue before us is trying to figure out what arrives and means and not worry about that. I just want to get your reaction to that. OK, so against the thrust of that question, let's reacquaint ourselves with Justice Kavanaugh's sort of the Monday version from Watson. Picking up on Justice Alito's questions, Professor Pildes and others have said that late arriving ballots open up a risk of what might destabilize the election results. If the apparent winner the morning after the election ends up losing due to late arriving ballots, charges of a rigged election could explode.

1:26:44The longer after election day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen. end quote. And my question is, my questions, one, is that a real concern? Two, does that factor into how we think about how to resolve the scant text and the maybe conflicting or evolving history here? I think Justice Alito referred to, and I think this quote refers to the appearance of fraud. And is that a real concern? Is that something we should be thinking about? Confidence in the election process. Just curious how we factor that in here.

1:27:26It really does feel as though there is kind of an asymmetrical or uneven kind of concern for consequences and implications in one context versus the other. Let me ask you, Allura, to talk briefly about whether the case should be before the Supreme Court at all. Justice Jackson was very focused on that in her questions, but it didn't feel to me like that was getting a lot of traction with anybody else. This case shouldn't be before the court at all. The metering policy was ended across the country, across the southern border by the Biden administration in November 2021. This is not a live case or controversy.

1:28:02That issue is moot. The Trump administration's position now is that metering is a critical tool that they might use at some point in the future. But this type of speculative might kind of question doesn't make something a live case or controversy that belongs before the Supreme Court. And yet it certainly felt to me, given the lack of interest in even asking questions about whether the court had properly had jurisdiction over this case, as though that's very unlikely to be an off-ramp the court wants to take. And it did feel like there was a concerning willingness to go along with this profoundly problematic reading that the Trump administration was advancing.

1:28:39Let's shift gears because we have a really important, also, of course, immigration case that the court is considering this week, and that's Trump versus Barbara about birthright citizenship. That will be argued again on Wednesday, and I think that most everybody thinks that is the biggest or at least one of the biggest cases of the term. As you know, Elora, this is the second case before the court involving the president's day one executive order purporting to end birthright citizenship. So before we talk about this case, can you just remind folks what happened in the first case involving the birthright citizenship executive order, Trump versus CASA, from last year?

1:29:10In Trump versus CASA, the Supreme Court didn't opine on the constitutionality or the legality of the executive order on birthright citizenship. Instead, the court addressed the narrow question of whether district courts are statutorily authorized to issue universal injunctions or nationwide injunctions, and the court ruled no. In a 6-3 opinion, the court ruled that a district judge may not issue a nationwide or universal injunction. What the court did leave open is the possibility for individuals to challenge executive orders by the president based on nationwide class actions and vacator actions under the Administrative Procedure Act.

1:29:55And the same day that the Supreme Court issued Trump v. Casa, multiple class action lawsuits were filed across the country, and the executive order never went into effect. It has been blocked as being blatantly unconstitutional in courts across the country. Right. And the administration is, before the Supreme Court, asking the justices to allow it for the first time to implement this, again, day one executive order that of all of the kind of savagely aggressive immigration enforcement steps the administration has taken, And kind of sort of looming over all of them, I think, is this kind of move on day one to radically break with longstanding constitutional views, beliefs, values that individuals born in this country, regardless of the status of their parents, are U.S.

1:30:43citizens, a full stop. And that, again, is this kind of day one executive order. So you have lots of other kind of questions around immigration enforcement, both in the courts and out of the courts. And then I think just this hugely consequential ask that the administration is taking, which is to the Supreme Court, essentially let us completely roll back and overhaul existing constitutional law. Okay, so that is what is sort of pending before the court. Let us, the administration is asking, let us enforce this executive order ending birthright citizenship. So I want to talk about the legal arguments and then also, as we did with Allotrolado, turn to kind of practical consequences.

1:31:20So I obviously maybe sort of put a thumb on the scale in my intro, but Laura, can you talk about how dramatic a break with existing law you view the Trump administration's arguments here to be? The Trump administration's arguments are radical and wild. The Trump administration's arguments are completely at odds with the text of the 14th Amendment, the history of the 14th Amendment, Supreme Court precedent, statutes, and decades of executive branch practice. The 14th Amendment's birthright citizenship clause is clear that all persons born in the United States are citizens subject to certain very minor exceptions.

1:31:59And there is more than a century of uniform Supreme Court precedent on this point, starting with Wong Kim Ark from 1898. There is also legislation, both from 1940 and 1952, that codifies birthright citizenship into U.S. federal law. There are decades of executive branch practice. And then there are the reliance interests of generations of Americans who have come to believe, based on our nation's foundational principles after the ratification of the 14th Amendment, that all babies born in the United States are U.S. citizens. It's part of the history and tradition of this country. Yeah. And I'm glad you use the term radical because there has been this, I think, concerted effort to sort of generate a rushed body of scholarship that is designed to kind of create the impression that there is sort of a reasonable debate about both the history and the kind of original understanding of the first sentence of the 14th Amendment.

1:33:06And I just think that it's wildly dangerous to cede that ground. There is a very recent and manufactured debate against this very long backdrop of settled understanding and the sort of the break that the administration is seeking would be a truly radical one. So you mentioned Wong Kim Ark, which I think is an enormous problem for the administration. You might say an insurmountable obstacle. And look, of course, lawyers argue about the meaning of cases, the grounds for decision, right? The kind of how to read particular phrases and lines of reasoning in Supreme Court opinions. But it does feel to me like a pretty audacious and, you know, I'll just say frivolous argument that the administration is making that Wong Kim-Ark is not only kind of an insuperable obstacle to their arguments, but actually supports them.

1:33:51So can you talk about why that argument that they are, I think, with a straight face offering to the Supreme Court is just so wrong? Kate, I agree with you. This argument that the Trump administration about Wong Kim-Ark is fringe, it's radical, it's frivolous, it makes no sense. So what the Trump administration is trying to argue is that the Wong Kim Ark holding was premised on Wong Kim Ark's parents being, quote, domiciled residents of the United States. And this is a sentence from the administration's brief that I'm quoting. They're arguing that, quote, children of aliens lawfully domiciled in the United States fall within the citizenship clause because their parents owe primary allegiance to the United States, not a foreign power, end quote.

1:34:40So the children born to those who are not what they call lawfully domiciled, so what they would say are people who are temporarily in the United States or here without documentation, their children should not be born as U.S. citizens. And that is just not the correct understanding of Wong Kim Ark. Wong Kim Ark is very clear that the citizenship clause should be interpreted to include all children of foreign nationals without regard to parental domicile with certain extremely minor exceptions. And those minor exceptions are for children born to foreign sovereigns, ambassadors, children born on warships, and occupying armies.

1:35:27But everyone else born on U.S. soil is a U.S. citizen. Okay, I'm glad that you offered that rejoinder. And I, you know, we'll see exactly how the justices kind of talk about Wong Kim Ark in the argument. I want to maybe take you to something else that you mentioned, the kind of litany of reasons that the administration is so wrong here, is that there's not only the kind of constitutional obstacle, but there's also the statutes that Congress has enacted. And those statutes, I think, are important for kind of a couple of independent reasons. One, they're just additional evidence like the kind of executive branch practice that you're talking about that we have all always understood really since the 14th Amendment was added to the Constitution that birthright citizenship was the law of the land.

1:36:07But they're also just independent legal commands, those statutes from the 40s and the 50s. So this is not the primary argument that the respondents, right, the individuals challenging the executive order are making or relying upon. But I think it's actually a really good and important independent argument, which is that maybe sort of you could put to one side kind of resolving in an kind of ultimate way what the Constitution means, but you have these statutes enacted in 1940 and 1952, and the clear meaning and understandings of those statutes preclude this executive order, even if you didn't have a first sentence of the 14th Amendment.

1:36:42So can you talk a little bit about that argument? And I'm curious if you have a theory about why it's not more foregrounded in the briefing in the case. Sure. Kate, I agree with you. I think the statutory arguments are extremely important. And it's worth noting that in the legislative history for both the 1940 and 1952 statutes, the drafters of those statutes expressly rejected any domicile requirement by the executive branch committee that drafted those bills and then testified in its support before Congress. So the very arguments that the Trump administration is now making about Wong Kim Ark have been rejected in Congress and via these statutes.

1:37:22You know, I think that this is not the primary argument that is being made by the individuals in this litigation because the constitutional question is so core to who we are as a nation. And if the Supreme Court decides this case based on statutory grounds alone, that gives Congress the opportunity to rewrite the 1940 and 1952 statutes. And that might be disastrous for the future of our country. So it is, I think, better strategically to make the argument on constitutional grounds, which are so clear. And it's shocking that this is in dispute and before the Supreme Court right now.

1:38:18Strict Scrutiny is brought to you by the ACLU. On April 1st, the Supreme Court will hear arguments in Trump versus Barbara. the ACLU's case challenging President Trump's attempt to end birthright citizenship. Yep, that's coming up, and it's coming up now. The ACLU and partners will argue that the president's executive order violates the Constitution, over a century of Supreme Court precedent, and a longstanding federal statute. Fact check, true. The 14th Amendment kind of speaks for itself. The Constitution, not the president, defines who is a citizen. The ACLU is proud to defend the integrity of our Constitution and protect birthright citizenship, for every generation to come.

1:38:57You can learn more at aclu.org slash Barbara.

1:39:10Okay, so now let's pivot to kind of practical dimensions. So as the two Kavanaugh clips that I played a couple of minutes ago make, I think, quite clear, the court is uneven in its articulated concern for the consequences of its rulings. But I think it's important that people appreciate what it would mean on the ground for Trump to win here. This is something I've heard you talk about before, but I think it can't be emphasized enough. So what would that look like? If this executive order goes into effect, it would affect every person giving birth in the United States, every family giving birth in the United States, and every newborn in the United States.

1:39:46Every time a person is in the hospital giving birth, the mother, the father, the parents would have to prove whether they are lawfully present in the United States, whether they are U.S. citizens, whether they're lawful permanent residents, or whether they have some other kind of immigration status or no status at all. Hospitals are not equipped in the delivery room to be checking people's passports, to be checking people's birth certificates, to be checking people's immigration paperwork. These are not easy, straightforward questions. It is complicated to figure out what a person's status is.

1:40:21Yeah. So that, I just, it really drives home that this is not a ruling that will be sort of cordoned off to kind of affecting a subset of the population. If you give birth, if you have family members who give birth, if you know people who give birth, if you have any professional or other dealings with hospitals, this could be absolutely to kind of return to the idea of radical, radically transformative kind of intervention in ways that I think people don't fully appreciate. Just a lot kind of rests on our settled understanding of birthright citizenship and sort of not only do hospitals not have the kind of processing capability that you were just alluding to, but, you know, that's assuming people even have with them the paperwork that would be required to even set in motion some kind of verification process.

1:41:09And a lot of the time they won't. So just enormous potential practical consequences for literally every person in this country. And that is kind of what's at stake. And I hope that kind of like both the overriding constitutional principles and values we've been talking about, but also practical implications of their accepting this radical invitation from the administration are kind of evident in the way the justices are reasoning about this case later this week. So finally, Laura, we have been obviously talking about pretty big questions of constitutional and statutory meaning in the immigration context.

1:41:41But I want to sort of ask you to talk a little bit about something that you have been working on and writing about and testifying about. And that is the representation of actual individuals, including kids and families who are impacted by this administration's immigration enforcement. And I know you've been spending a lot of time working with folks who have been detained at the Dilley detention facility in Texas. You wrote a really powerful op-ed for The Times about it. And for folks who didn't have a chance to see the op-ed, can you just talk a little bit about Dilley and your experiences with it?

1:42:11Sure. I think most Americans do not realize that as a nation, we arrest and detain babies, toddlers, children, and their parents and hold them in an immigration detention center in Dilley, Texas in deplorable conditions. Over the past year, more than 3 ,800 children have been arrested and detained by federal immigration authorities, including 20 infants. More than 2 ,300 of those children have been held in family detention centers, most of them at the Dilley facility. The Dilley facility is a hell hole. It is a prison for babies, toddlers, and children. Children and parents detained there do not have access to sufficient clean drinking water.

1:42:55They do not have access to palatable and nutritious food. Children and parents detained there have told me repeatedly that they found live worms, bugs, and mold in their meals. Children and families detained at Dilley do not have access to sufficient medical care. One of my clients, baby Amalia, just one years old, nearly died at the Dilley facility in January. And the lights are on 24-7, making it difficult for children and parents alike to sleep. It is a privately run prison. It's run by what was formerly known as the Corrections Corporation of America, now known as CoreCivic. ICE pays CoreCivic annually$180 million to run this facility.

1:43:40And this is totally not necessary. There are cost-effective and humane alternatives to detaining children. Baby Amalia, people may have sort of seen coverage of her case. She became very, very ill, spent a period of time in the hospital, was then released and sent back, to Delhi, to the same unsafe conditions that had led her to be so gravely ill in the first instance. Can you talk a little bit about another client of yours, another young client, Gael, and his family? I know that's a case that you were just working on as we were coordinating this appearance this week? Sure. So since last summer, I've represented 75 children and their parents who've been detained at Dili.

1:44:21Gael is a child who I started working with just this month. He is five years old. He's nonverbal. He was in the process of being diagnosed for autism. And he and his parents entered the United States several years ago. They did everything right. They showed up for all their immigration check-in appointments. They had pending asylum applications. They are entirely law-abiding. Only law-abiding people are detained at Dilley. No one with any criminal history is detained there. And they did exactly what they were supposed to do, which is show up for an ICE check-in in El Paso a few weeks ago. And once they did that, they were arrested and detained.

1:44:59And Gael's physical and mental health rapidly deteriorated in detention. He has special needs and debilitating disabilities. And as a result of his health conditions, he became extremely constipated and he went nine days without pooping at all. And between March 3rd and the time of his release just earlier, a few days ago, he did not have a complete bowel movement and he is nonverbal, but he could really express his distress. He began hitting himself in the head repeatedly to express how unhappy he was. He was clenching his belly. I saw his stomach. It was distended. It was bulging. He was really, really uncomfortable.

1:45:45He couldn't sleep at night. The noises of the patrolling guards at night bothered him. The lights on 24 hours a day bothered him. And luckily, after some extraordinary efforts, he was released. And it took a combination of filing parole requests and media coverage, specifically from Telemundo, Univision, NBC News, and an influencer who focuses on children, Miss Rachel, covering his case that collectively resulted in the release of this child and his parents. So there are little instances of kind of success and justice and victory. They're few and far between, but they're really important to highlight when they do happen.

1:46:28Can you just leave us with some words about what folks can do about all of this. I do think that not everyone realizes just how obscene and appalling the conditions are in places like Dilley. But, you know, if you're not in Minneapolis and you sort of haven't been super following news coverage, I'm not sure people realize quite how bad it is. What can people do to respond to this situation that we find ourselves in? I think there's so much that ordinary people can do. First, learning about what this birthright citizenship executive order will do if it goes into effect and how, Kate, as you said, it will affect everyone.

1:47:12And telling people who are in your communities about this basic fact, I think that's really important. So education is important. As I mentioned, I think most Americans don't realize that we're imprisoning babies, toddlers and children. I think sharing this information is really, really important because this is not what we as a nation stand for. And I think it's also really important to help people in our communities. And you don't need to be a lawyer to help people in our communities. You can check on your neighbors. You can see if they are too afraid to go outside, if they need help taking their kids to and from school, if they need some help getting groceries, you can join mutual aid organizations.

1:47:50You can participate in ice watch training so you can be an upstander in case ice comes into your community so you can alert your neighbors and other people about what is going on. I think it's super important not to give up hope in this moment. It's important to come out to protest, to speak up, to organize. And for those of you who are lawyers, I encourage you to consider getting trained in how to do federal habeas litigation. There are thousands of people who are in immigration detention facilities right now, who are there illegally, who are there in violation of the Constitution, in violation of people's Fourth and Fifth Amendment rights.

1:48:28And there are incredible webinar trainings that take a day or two to complete that will give you all the information you need so you can represent people in immigration detention. And I think we all need to rise up at this moment and work to save our democracy. Okay, Laura, that is such a wonderful concrete suggestion for our lawyer listeners in particular. Is there a specific organization or training that you would recommend for people who might be willing to take the plunge and actually learn how to file habeas cases? Yes. Vecina has created an incredible webinar training series on how to file federal habeas petitions.

1:49:05And there are many lawyers experienced in immigration and federal habeas litigation who are willing to provide mentorship to lawyers who are new to this space. Okay. So Vecina is the organization and they have a training. Okay. So check that out. And we will also put a link in the show note. Thank you so much, Alora Mukherjee. It was wonderful to have you. Thank you for your wisdom and the incredible work that you're doing. Thank you, Kate, for having me. And before we go, we often, you know, we, these days always, end by recommending a couple of things that we read or listened to or watched recently.

1:49:34It doesn't need to be like in the last couple of days. I mean, I'm going to make a couple of recommendations, then I'll turn it over to you, Ian. So Ganesh Sitaraman had a great op-ed in the Times last week called This Is Why Flying Is So Awful. And he's got a book called Why Flying Is Miserable and how to fix it. And the answer is just like basically deregulation, sort of full stop. But it's a great op-ed. Highly recommend it. And I also want to shout out two wonderful new books by Penn Law colleagues of mine. One, Dorothy Roberts' Mixed Marriage Project and the other, Sean Osei-Wusu's Law on Trial.

1:50:01Dorothy's book is already out. Sean's book comes out in April. They're both fantastic. So check them out if you haven't. Over to you, Ian. Oh yeah, well, I'm a books and music person. So I'm gonna go books and music. So for books, I'm gonna do an old one and a new one. The old one is The World of Yesterday by Stefan Zweig. This is an incredible memoir of a writer in Vienna writing about the pre-war period in Europe. And it's incredibly resonant today. You know, I was just very hopeful and optimistic about American democracy surviving Trump. I think we will. I'm not as optimistic about the state of the world and sort of the geopolitical order in the 21st century.

1:50:36And I think Zweig captures something about the, speaking of weather, the atmospheric weather in pre-war Europe. And some of that feels very resonant today. It's a fascinating read. That's the old book. The new book is a book I'm really excited about that I just read the final draft of called The Lost Founder by, I think, our mutual friend, Jesse Wegman. It's a fabulous book that unearths a really consequential founder of this country who's been largely forgotten, James Wilson, who is about as influential in the drafting of the Constitution as Madison or Franklin or Washington or any of the founders that we revere.

1:51:10And this is a fascinating look into Wilson's vision of the Constitution, which is very much a popular sovereignty, democratic vision. I think it's going to be a book that kind of revolutionizes our understanding of democracy's role at the founding. It's not out yet. It's coming out. You can preorder it. And then the music. So my friend Simon, a couple of years ago, flagged for me the band Idols, the sort of post-punk British band Idols. when their debut album, Brutalism, came out in 2017. And I listened to it, and it's like loud, and it's aggressive. And I was like, I'm too old for this. I was like, when I was 17, I'm totally there.

1:51:47But like, I'm 50 now. I'm too old for this. But then there was a great New York Times op-ed by Will McGrath about shuttling kids to school in Minneapolis during the ice surge. And he said when he was bringing kids to school whose families were too afraid to take them to school, they would blast the idol song Danny Nadelko in the car. So I went and I checked it out. And I urge other people to check out the lyrics to it. It's this really wonderful pro-immigrant song, but it's couched in a vibe, for lack of a better term, of like what sounds like almost toxic masculinity. And it sent me sort of down a rabbit hole of listening to idols.

1:52:25I've become totally devoted. And the reason I'm so into it is this. You know, when we worry about, you know, I got young boys. When we worry about boys today growing up and worry about sort of the toxic masculinity there, you wonder, how are we going to get out of this moment? And listening to idols, I was like, this is how we get out of it. We have this really, you know, sort of channeling young male aggressiveness sound with deeply like humanitarian, frankly, very progressive values in their lyrics. I remember as a kid, my politics were shaped by the music I listened to, you know, sort of Pink Floyd and Bob Dylan's suspicion about war, rage against the machines, kind of revolutionary instincts.

1:53:01And I want my kids, and my kids are listening to idols now, because I want their version of where some of that male aggressiveness goes to be channeling the direction that the idols' lyrics are pointing, which is, we can be better to our neighbors. We can be good people. We can have a better world. And so channel some idols, get young again. That's a great recommendation. I don't know the song. I will check it out as soon as we're done. Well, Ian Bassin, what a total pleasure to talk to you. Thank you so much for joining me today. It's always good to be back with you. One piece of housekeeping before we go about Empire City, the untold origin story of the NYPD.

1:53:36That's Crooked's award-winning deep dive series into how the New York City Police Department became the largest police force in the world and why that history feels so relevant when you're scrolling through stories about immigration crackdowns, federal deployments in major cities and communities facing racial profiling. The show traces how power was built, who it was built for, and what that origin story tells us about public safety today. Now the show is taking the conversation even further. So join the virtual Empire City Podcast Club from Crooked Ideas, which kicks off tomorrow, March 31st.

1:54:05Together, you will dig into the themes of the show, connect the dots, wrestle with big questions, and imagine what real safety could look like for all of us. Sign up now at crookedideas.org slash empirecity. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroat is our head of production. Thanks to our video team, Ben Hethcote and Johanna Case.

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