Department of State v. Muñoz

will hear argument first this morning in case 23334, Department of State versus Munoz.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Department of State v.

Muñoz.

This case from 2024 is about the intersection of immigration law and the constitutional right to marriage.

The plaintiff in the case, Sandra Muñoz, is an American citizen who married a man from El Salvador.

Her husband applied for a visa so that he could come live with her in the U.S.,

but the petition was denied, with the State Department vaguely suggesting that Muñoz's husband was trying to enter the U.S.

in order to engage in unlawful activity.

Muñoz sued, arguing that the government was infringing on her right to marry by keeping her husband out of the country and not providing more details as to why his visa was denied.

The Supreme Court ruled ruled against Munoz, stating that because her husband was not a citizen, the government didn't owe her an explanation for denying his visa application.

This is Five to Four, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our civil liberties to decline, like Tesla's sales figures.

I'm Peter.

I'm here with Rhiannon.

Hey, everybody.

And Michael.

Hey, yeah, I heard that like there was a poll that something like over 90% of Germans were like, I will never purchase a Tesla.

They just released their quarterly results, and things are not good.

Things are not good over at Elon HQ.

Rough week for our boy.

Lost the election in Wisconsin, and his company.

Sucks ass.

His company is dumb as hell and not doing well.

Yeah.

You mean the car dealership commercial in front of the White House, which included the president, didn't help Tesla sales?

Yeah.

I'm grateful for it because it did give us, it's all computer.

It's all computer.

It gave us Tesla.

I love Tesla.

Yeah.

So good.

So good.

It gave us Tesla.

It gave us, wow, it's all computer.

Yeah.

What's that line from?

I think it's like 2010, the sequel to 2001 is based out of, we're like, it's, wow, it's full of stars stars or something, but it's like, wow, it's all computer.

Yes.

Look, we haven't seen the full impact of the Trump press conference.

Maybe MAGA chuds will start driving Teslas.

I'm sure that some of them will, you know, for sure.

But apparently, just publicly being one of the world's great scumbags is neither a good political nor business strategy.

And it can't be overcome by selling very terrible products.

I think we're at a fascinating inflection point with Elon where

what he has done historically to help his businesses and his image is appear in public and say things and make big, crazy promises.

But now that everyone sort of thinks he's a lying piece of shit,

that's counterproductive.

And yet it's the only strategy he knows.

And so I think we're entering a sort of death spiral phase, if that makes sense.

I hope.

Yeah.

All he knows is do drugs tell lies.

That's Elon.

Well, I'm sure if he just puts another guy in a little green vinyl bodysuit and is like, puts him on stage and is like, we're going to have robots.

Here's a guy dancing around in a suit and we can all just pretend he's a robot.

That'll do it.

That'll turn the stock price around.

No, the stock price is doing fine, actually.

Not to go too far on Elon, but that's the thing about his weird promises is they used to make sense.

You know, it was sort of like full self-driving, sure.

That's sort of the natural extension of what Tesla was doing.

Or the battery stuff.

The battery stuff.

Yeah.

You go from there into battery storage, robo-taxis, all seemed natural.

And now he's like, in a few years, we'll be making 100 million humanoid robots a year.

And it's like, what are you talking about?

What are you talking about?

This is too much ketamine, bro.

How many robots per family do you think we need?

One per child.

Yeah, exactly.

All right.

This week's case, Department of State v.

Munoz.

This is a case from just last year about the rights you have as a citizen when you have a spouse who's not a citizen and perhaps wants to come join you in the United States.

Something that is extremely pertinent today, considering first how many non-citizens married to citizens we're seeing snatched up and deported, and further, because there are implications for gay marriage and lgbt rights wrapped up in this case sandra munoz is a citizen married to a non-citizen from el salvador i want to point out that rhiannon just nodded when i said her name Apparently, I have done a sufficient white boy saying a Spanish name.

Yeah, there's no rolled R, but that's okay.

We celebrate it nonetheless.

I'll never be rolling an R.

Don't let my mixed heritage fool you.

I can't hit an accent for shit.

All right.

Unless it's a Long Island Italian accent.

That's right.

Right.

Well, within the tri-state area, I'm a fucking expert.

I'm a savant.

Yeah.

Just like the nuances of like Philadelphia Italian, very different.

I can do South Jersey versus Philly versus North Jersey.

It's crazy.

But

basic Spanish, no.

So, Sandra and her husband, Luis, they get married and they try to get him a visa to come join her in the United States.

He was denied, with the consulate claiming that the denial was based on their belief that he was trying to enter the United States to engage in unlawful activity of some sort.

However, they did not provide a specific basis for their conclusion.

So, Munoz sued, claiming that as a citizen, she has a constitutional right to be provided with a reason for her husband's visa denial.

But the Supreme Court, in a six to three decision written by liberal hero Amy Coney Barrett, says no dice.

Yes.

So, yeah, let's start with like this process, them meeting each other and then petitioning the U.S.

government to allow Luis to enter the United States lawfully.

So, Luis Asencio Cordero entered the United States in 2005.

When he entered the United States, he did so without documentation.

Now, he met Sandra Muñoz, a workers' rights lawyer from Los Angeles in 2008.

They married in 2010.

They had a baby.

And in 2013, they began the process for adjusting Asencio Cordero's immigration status.

Adjusting his status from whatever immigration status he had previously.

They decided, hey, let's get the process going legally to adjust that status.

And so in this case, that means that Sandra Munoz filed a petition on behalf of her husband, basically saying, hey, this person now is an immediate relative.

We've gotten married and let's get the immigration process going from here.

Yeah.

And so I think this case really illustrates that like, you know, you've probably heard of or seen on TV green card marriages and things like that, but it's, it's not simple.

It's not easy.

And

like, this is the process, right?

This is what the process for a green card marriage looks like.

And it's really involved.

It takes a long time.

There are a lot of steps and you might not get it.

Yeah.

Yeah.

None of this is automatic.

So we're going to talk throughout about quote unquote adjusting status.

This is the legal term for a non-citizen to go through the process of getting some kind of legal immigration status in the United States.

It's called adjusting your status.

You adjust your status from non-citizen to immigrant, the legal definition of immigrant.

You are allowed into the United States as an immigrant in various ways.

Maybe it's a visa, other things, and then you can adjust your status from there.

So, because Asencio Cordero originally entered without inspection into the United States, the government required him to return to El Salvador for processing this visa application at the consulate in El Salvador.

To get his immigrant visa, to adjust his status, he needed to start back in El Salvador, which in 2015 he had not been to since 2005.

However, if you enter into the United States without inspection and then you leave, When you try to come back to the United States, you potentially face a bar to re-entry.

On that first time that you're trying to come back, you can be barred from re-entering for up to three years.

So before he left for El Salvador, the couple petitioned for and got DHS to waive that bar on re-entry because of quote-unquote extreme hardship that would be suffered if he were excluded.

So DHS is saying, yes, go back to El Salvador.

You have to do your visa application at the consulate there.

And we are at least not going to bar your re-entry outright.

Because we get it.

You're married.

It's going to be a hardship on your wife.

And exactly.

So in April 2015, Asencio Cordero left California for El Salvador and in May went to the consulate in San Salvador to interview and begin the process for re-entry and adjusting his status from there, submitting that visa application.

But an officer at the consulate denied that visa application.

And the denial didn't include any reasons.

It only cited to a single law that says that a person is inadmissible to the United States if a consular officer finds that someone seeking to enter the United States wants to do so in order to engage in illegal activity.

Basically, this officer at the consulate saying no to Asencio Cordero's visa application, citing this law that says he can say no if he has found that Asencio Cordero seeks to enter the U.S.

to do crime.

Now, Asencio Cordero has no criminal history in the U.S.

or El Salvador, and that reason actually was not articulated.

The reason for believing that he was entering the U.S.

in order to do illegal activity wasn't articulated, no justification.

Again, they are just given the law that says the consular officer can make this decision on this basis.

So the couple asked for reconsideration of the visa application.

multiple times.

They got a congressperson to send a letter on their behalf asking for the visa application to be reconsidered and approved.

They provided a ton of other evidence of like Sandra's accolades at work, evidence of her husband's good character, all of this kind of stuff.

Again, they just get the citation to the law.

The government is just replying and saying, here's the law that says we can deny this.

And their petition for reconsideration of the whole application was denied.

Lots of process from here, but they basically take this to federal court.

And it's only after suing in federal court that the couple finally received the reason for the denial of the visa application.

The State Department said that the consular officer back in San Salvador denied Asencio Cordero's application under that law because of his tattoos, because Asencio Cordero has tattoos, which apparently led the consular officer to determine that Asencio Cordero was a member of MS-13 gang.

in Central America.

Well, that's probably from his MS-13 tattoo, right?

Right.

Yeah, let's talk about the tattoos.

What were the tattoos of?

Essencio Cordero had tattoos of the Virgin of Guadalupe,

a tribal pattern,

paw print,

dice and cards, and Sigmund Freud.

Yeah.

Sorry, sir.

There's a law saying that you are too corny.

You got to go back.

Yeah.

This fucking dork,

it's the Sigmund Freud tattoo, right?

That's the MS-13 marker.

That's the one.

They love it.

They love Freud.

That's what they won't tell you about MS-13 is how much they love Sigmund Freud.

Yeah, they're a very Oedipal gay.

So this is years later, a couple of years into litigation, they finally get this reason.

It's obviously bullshit.

The couple appeals.

They're in federal court now.

So this goes up to the Ninth Circuit Court of Appeals.

And the Court of Appeals actually sides with the couple, says, okay, the government finally provided a reason, but this isn't timely.

This is still basically bullshit.

But then, of course, the U.S.

government appeals, and that's how we get to the Supreme Court.

So this is a slightly odd fight from a legal perspective because the couple is saying, hey, we have a right to know

what your reason is for rejecting him.

At this point, the government has provided a reason.

And the fight is sort of about the scope of Munoz's rights.

So The technical legal argument here is about the 14th Amendment, which guarantees that no person shall be deprived of life, liberty, or property without due process of law.

And the way that this is interpreted is that there are certain fundamental rights under the Constitution, and you can't be deprived of those rights without some due process.

So Muno says, hey, this is relevant to my liberty.

I have a fundamental right to marriage.

That's, you know, O'Bergefell v.

Hodges, right?

That's something the Supreme Court has held recently.

I want to live with my husband in the United States, and that means when the consulate denies his visa, they at least owe me a thorough explanation.

That's all she's saying here.

The majority is written by Amy Coney Barrett.

So let's go over some of the primary points.

She says, here, Munoz invokes the fundamental right to marriage, but she actually claims something more distinct.

the right to reside with her non-citizen spouse in the United States.

And then Barrett applies the history and tradition test that this court is so fond of.

Under that test, for something to qualify as a fundamental right under the Constitution, the right must be rooted in our history and tradition.

But Amy says, historically, the government has been able to tightly regulate immigration.

So this right can't be fundamental.

Yeah.

So very amateur magician sleight of hand here.

Muno says, hey, I have a fundamental right to marriage under the 14th Amendment, and the government is interfering with it.

And that puts the conservatives on the court in a bit of a bind because she's right.

The court has recognized that marriage is a fundamental right under the 14th Amendment, but conservatives don't really like that.

They aren't fans of the 14th Amendment at all.

And they're certainly not fans of the idea that it protects marriage because that's what led to the legalization of gay marriage nationwide.

So what does Amy Coney Barrett do?

She says, well, this isn't really about marriage.

It's about the right to reside with your non-citizen spouse in the United States,

which is a bizarre way to frame it, right?

Because if there's a right to marriage, call me a dreamer, but I imagine it would include the right to live with your spouse in the country.

Right.

Yeah.

Yeah.

And this question is about like, is this burdening the right to marriage?

She has a right to marriage.

Citizens have a right to marriage.

And so does this burden the right to marriage?

Not does this burden your right to reside with your non-citizen spouse in the United States, which the conservatives are going to be like, no.

Yeah, obviously like cohabitation is a part of marriage, right?

Oftentimes, that was the thing that it was like history and tradition, they would go hand in hand.

You wouldn't live together until you were married.

Like, and then once you were married, you would live together.

The other thing reading this is just like, especially doing this podcast, is like,

it just starts to feel so stale, like the moves conservatives make.

They're like, oh, we don't like the way this fundamental right is being used here.

So we're going to redefine the right very narrowly.

How many fucking episodes have we done where they make this move?

Yeah.

Do they have like a little note card with like five different rhetorical moves that they have?

And that's it.

And they just like every conservative justice gets handed the note card and is like, here are your big go-to moves, you know, and that's it.

Right.

Yeah.

Yeah.

This reasoning reminds me of like, if there's a law that says you can't publish a newspaper and then someone was like, hey, that infringes my freedom of speech.

And the court's like, well, it's not really about speech, right?

It's about your right to.

print and distribute a newspaper.

It's like, yeah, those are related.

One implicates the other, right?

You can't just get around it by being like, actually, you're not really talking about marriage when you think about it.

Barrett talks about how the government has historically had the right to regulate immigration, and historically, that right is relatively unfettered.

But she sort of dodges around the fact that all Munoz is asking for here is an explanation from the government as to why the government is rejecting her husband's application, right?

Like, that's the requested remedy.

Right.

Does that really impede the government's ability to regulate immigration in a material way?

They're creating a framework where keeping someone's spouse out of the country doesn't infringe upon your fundamental right to marriage, but asking the government a question infringes on their ability to regulate immigration.

It's just silly.

Munyo has made another argument, sort of a more technical argument, that she has a due process right.

to know what the government's reason for rejecting her husband's visa application is.

Essentially, there's a guarantee under the Constitution of due process, right?

By not providing her with the reason for the denial of the application, the government, she says, is violating that guarantee.

Now, this is slightly tricky because she is not technically a party to the proceeding, right?

Her husband is, and he's not a citizen.

So it's harder for her to say that this violates her due process rights.

And that's what Barrett argues.

Barrett says this, quote, would usher in a new strain of constitutional law.

for the Constitution does not ordinarily prevent the government from taking actions that indirectly or incidentally burden a citizen's citizen's legal rights.

So think about this phrasing she's using.

She says the Constitution does not, quote, ordinarily prevent the government from taking actions that indirectly burden a citizen's rights, which means that sometimes it does, right?

That's what ordinarily means.

Yeah, sometimes it's important enough that it does.

And if it sometimes does, then how in the same breath can you say that this would usher in a new strain of constitutional law, right?

As the dissent points out, there's a precedent for the idea that the denial of a visa can implicate a different citizen's rights.

So Barrett's rhetoric about how this would be like a big deviation from our constitutional norms, mostly bullshit.

There was this case in the early 70s where a foreign speaker was trying to get a visa to speak in the United States, and some citizens, after his visa was denied, said, hey, we have a First Amendment right to hear him.

speak, right?

And Barrett tries to like create this technical distinction being like, well, that wasn't a due process case.

That was a First Amendment case.

Mostly just bullshit that you don't need to think too hard about.

I want to point out that Barrett is arguing that this is an indirect violation of Muñoz's rights.

Right.

But I don't really think it is.

Muñoz is pointing out that there's a constitutional right to marriage.

Her husband's ability to live in the country is at issue.

In my mind, that directly affects her, right?

Even if she's not a party to the proceeding.

And a simple way of looking at it is that if there's a right to marriage, then she should be treated as a party to the proceeding in some respect, right?

She should have an interest in the proceeding, some kind of due process interest in the proceeding.

She should be able to intervene, essentially, in a legal sense.

Like she should be able to be an intervener.

And Barrett's argument that due process for Muñoz isn't implicated here doesn't make sense when, again, you go back to the substantive right that Muñoz is arguing is being burdened, the fundamental right to marriage.

If you have a substantive right, what that implicates legally is that you have process when that right is burdened or taken away.

That's in general how

constitutional law actually works, right?

That you have a process for arguing that your constitutional rights were burdened or violated, and that the government in some way has to respond.

Any allegation or putting forward of your constitutional rights implicates directly some sort of due process requirement from the government.

Yeah, it's crazy because it's like, this is just like basic structure of courts and rights in the federal government stuff, right?

This is like stuff

you learn in 1L as a lawyer, like, and you're having to like re-litigate it.

Like

from the ground up, like the entire creation of the state, you know, is like up for grabs again.

Right.

It's bizarre.

Barrett's sort of saying, like, well, Munoz doesn't have a procedural interest in the

immigration proceeding.

Like, it's a fact of nature.

Right.

But, like, actually, that's a decision that the court makes.

Right.

Yeah, that's what you're holding.

Like, you can just say right now that she does.

Yeah.

It's so fucking annoying.

And I just don't think it makes much sense.

If there is a fundamental right to marriage, then surely, then surely it has some implications for people who are married to non-citizens.

It's just so fucking dumb.

Like, this is one of those things where like, if you have a citizen spouse, it entitles you to all sorts of legal protections and benefits.

And what the court is saying is that like, if you have a non-citizen spouse, your marital benefits legally don't include the ability to know a little bit more about why they're not being allowed into the country.

Yeah.

Are you kidding me with this?

Yeah.

Also,

Peter, you made me think of something when you said, like, this is a choice the court is making, right?

Like, you can decide differently.

There's something very similar going on with,

you know, when they're like, well, historically, the government has wide leeway in determining who does and doesn't get visas and who can and can't stay in the country and blah, blah, blah.

And it's like, yeah, it's true that historically the court has given the elected branches lots of leeway there, crazy leeway.

That's not mandated by anything.

We are a constitution of limited powers, enumerated powers.

Do you know what's not an enumerated power in the Constitution?

Immigration, the border.

Like you can ground it in the Constitution.

You can say, you know, for example, oh, well, yeah, but the regulation of interstate commerce is something Congress can do, and that's clearly impacted by immigration and whatever.

But that would mean that all of immigration law would have to be subject to the U.S.

Constitution.

And the court doesn't like that.

And so for 150 years, the court's been very handoff and been like, well, this is inherent to the sovereign.

This is not something where we have a lot of things to say.

And you can't just spend 150 years being like, well, the Constitution is weakly applied or not applied at all in this context.

And then be like, well, historically, they get to do what they want here.

So who are we?

It's like, who are we to say otherwise?

You're precisely who can say otherwise.

You're the fucking Supreme Court.

Like, what are you talking about?

Yeah.

Right.

They act like they are sort of like bound by the force of history.

Right.

No, not really.

No.

Not really.

It's just made up bullshit.

It's like, nowhere is that more true than in immigration law.

That it's just made up bullshit.

And more than that, I mean, the court frequently talks about immigration and the history of immigration as like a history of the federal government having sort of unfettered discretion, right?

But if you really want to talk about history and tradition, you could also talk about what they used that discretion to do 100 years ago versus now.

Because 100 something years ago, you could just show up at Ellis Island and then they just made your name a little whiter and let you in.

And that was it, right?

That is what happened to me, my dad's side of the family.

It was Lipiansky.

They just were like Lieroff.

That was it.

What about Leroff?

What about Liroff?

Yeah, nice.

You know what we think sounds better?

So, when they talk about history and tradition, they're talking about it in this very narrow way and talking about it to sort of justify the federal government's sort of like completely unfettered power in this area.

There are completely different ways to think about history and tradition that don't jive with this at all.

Yeah.

So Gorsuch has a concurrence.

It's very short and sweet sweet and

kind of missing the point, I think, a little bit.

But he's just like, look, they're asking for an explanation.

The government gave him an explanation.

The tattoos.

Yeah, the tattoos.

They can now formulate a court case or whatever or some sort of appeal based on that explanation if they so desire.

So what are we doing here?

That enough is to overrule the circuit court of appeals saying that

they haven't gotten satisfactory relief and move on.

It's almost, it's close to saying, you know, this should be dismissed as improvidently granted.

I think he's saying that they shouldn't because he's kind of saying that the circuit of court of appeals should have sort of dismissed this as improvidently granted, essentially.

Like, like, look, what do you want?

You asked for an explanation, you got it.

Why are we still here?

You know?

And Sodomayor basically agrees in her dissent with the concurrence, right?

It's just that Gorsuch

was sort of concurring so that he didn't have to agree with the dissent about gay marriage stuff, which we'll get into in a second.

But I think Gorsuch and so to Mayor and her dissent to some extent are correct in like the narrow sense that Munoz has gotten what she asked for here.

She's gotten the explanations from the government, right?

What makes this decision shitty is that the court doesn't stop there.

They sort of limit the boundaries of the right to marriage, right?

Limit it in a way that impacts both that right to marriage and your rights vis-a-vis your non-citizen spouse.

Yeah, the remedy they requested has been granted, but sort of has it like you want an explanation for a reason, right?

What you want is a meaningful opportunity to contest this decision.

And like

that, it's less clear to me that that exists, right?

And whether or not her right to marriage is protected if she doesn't have a meaningful chance to contest this obviously without any information she has no meaningful chance with this information it's still not clear to me whether she has a meaningful opportunity so right and meaningful opportunity meaning meaningful real due process right i think this is a tricky case on the law and i think it's exactly right peter that what's so evil and ridiculous about the majority opinion is that it goes beyond what needed to be held in this case, the kind of like narrow holding that the court could have had, which is, hey, Sandra Muñoz, you got your reason from the government on why that visa application was denied for your non-citizen spouse.

That's it.

Yeah, it took them longer than you wanted, but at the end of the day, the issue is moot.

Right.

But they don't do that.

They go beyond and chip away at the fundamental right to marriage, say that Munoz does not have a procedural interest in this proceeding.

And what Sotomayor does in dissent is say, whoa, whoa, whoa, whoa, whoa.

You could have made the decision on those narrow grounds.

But instead, what's really wrong with this opinion is that you completely deny strong precedent both on the fundamental right to marriage and on these due process rights for citizens in terms of proceedings involving their non-citizen spouses.

So Sotomayor's dissent is based on this fundamental right to marriage and then a case called Mandel.

So Mandel says that denial of a non-citizen's entry into the United States, it can burden a citizen's constitutional rights.

And so even though in some situations the government doesn't have to give a reason for the denial of entry to a non-citizen, when a citizen's constitutional rights are burdened, they do.

That case directly says that.

Sotomayor is saying, we have this case.

Right.

That, by the way, is the case about the visiting professor, right?

Who, by the way, was like a commie.

In case you're wondering why they denied his visa in that case.

Yeah, exactly.

Sotomayor says, look, we have this case.

What are you doing?

And so this decision, Munoz, is basically overturning Mandel without saying that it does.

It says that citizens don't have due process rights when a non-citizen is denied entry without a reason.

Again, I just want to highlight, I think, like, I was frustrated reading this dissent.

I agree with Sotomayor, right?

Like, the implication on the fundamental rights to marriage, the implication on citizens' due process rights as it relates to their non-citizen spouses, like those are all really important.

But it was kind of like I was reading the frustrating position that Sotomayor was in, that at the end of the day, the relief that this couple was asking for had been granted.

The reason

that his visa application was denied was given to them.

That actually indicates what is over this entire case, which is how fucked up immigration law is and how constraining and different a world immigration law is from all of our other law and how we think about like rights.

Sotomayor, I think, does a good job with going through like step by step what non-citizens and their citizen spouses have to go through to adjust that non-citizen spouse's like immigration status, trying to get to legal permanent resident, all of that stuff.

You know, Muñoz and her husband had to go this consular processing route, which means like Asencio Cordero had to leave the United States and do this application process at a consulate in El Salvador because he had not entered the United States with inspection.

And that burdened them extra.

He had to leave the country.

He didn't have to be given a reason for the denial of his application.

Whereas if a non-citizen does enter the country with inspection, they can go through that visa application process in the United States.

They do not have to leave first.

They can go through that application process in the United States and they have more rights.

as to that process.

They do have to be given a reason if they're denied.

So this situation, the immigration law put an extra burden on this couple.

And Sotomayor goes through in a really detailed way what this long process is like and the hurdles that they and non-citizens in general have to jump through to adjust their status.

And Sotomayor then also expands on the fundamental right to marriage.

And if the fundamental right to marriage means anything, then it would mean that the denial of entry for a non-citizen spouse implicates in a very basic way a citizen's right to marriage.

And the big attack here on the majority opinion is why they brought in the fundamental right to marriage and said that this is like completely unrelated.

Right.

Yeah, I mean, I think it's worth pointing out that the relief that Soda Mayor is pointing to is inadequate.

I mean, she's right that the majority goes way too far here and sort of stomps on these constitutional rights.

But if there's a fundamental right to marriage in this country

and the government is saying that your spouse cannot even enter the country to live with you, due process should require more than just giving you an explanation.

Right.

Yes, right.

That's what I'm frustrated with in Sotomayor's opinion.

Go further.

Go further.

You should have the right to challenge it.

Yes, yes.

You should have the right to challenge it, right?

That's what a constitutional right is.

You should be able to validate it in a hearing.

A meaningful chance to challenge it.

That is, right?

That's the whole point of having the reason, like the reason that you want this explanation so you can formulate a challenge to this decision in a forum.

where you have a meaningful chance to prevail.

Right.

So that when the government says, oh, we think you're affiliated with MS-13 because you have a dice and Sigmund Freud tattoos, you get to take that into court and be like, look at this fucking bullshit.

Exactly.

Right.

Exactly.

That is what due process means.

The clause says the government can't take away life, liberty, property without due process, right?

In this liberty interest, in the liberty that is guaranteed by the due process clause, it has been interpreted to include the fundamental right to marriage.

The government cannot burden that right without meaningful due process.

That's what this means.

That's where Sonoma just kind of falls short.

She's right that the majority fucks up the fundamental right of marriage analysis.

But you see in this case, the imbalance between the conservatives and the liberals, right?

The conservatives are like ambitious.

They're like, how can we leverage this case?

to damage the right to marriage, to damage the 14th Amendment substantive due process right that we don't like.

And then the liberals are like, well, yeah, there's this case from 1972 that establishes the precedent here.

It says exactly that.

If the conservatives are putting forward their like affirmative vision of the Constitution, why can't you?

Yes.

Yeah.

Yeah.

And why can't it include one where, you know, immigration doesn't take place in either like a constitutional gray zone or just a constitutional black hole, right?

Like our entire immigration law is built on the assumption that the Constitution just either won't apply or will only weakly apply to government actions there, which is one of the reasons why it's so arbitrary, why it's so onerous, why it's so ridiculous, why it's so cruel, right?

Like this is just like.

Think bigger.

Think bigger about what the Constitution requires of the federal government here.

Like, yeah, it's not just Mandel.

It's not just this case, right?

Say we have Mandel.

And in addition, I would push it further.

Like, you're in dissent.

Just say that.

Yeah, and not even close.

Like, it's 6'3.

Yeah.

Right, right.

6'3, and this is 2024.

You know, it's probably going to be a long time before libs are in the majority.

Like,

what are you doing?

Right.

Like, this is Sotomayor.

could have retired and been replaced by someone younger and without chronic health conditions.

She stayed on the court, presumably, to advocate for the things she believes are right.

This is what you're doing with your time?

This is what you're doing with that opportunity?

You got to be fucking swinging for the fences, I think.

Why not?

There's no reason not to.

There's no reason not to.

Just put out your affirmative vision of what the law and the Constitution should be.

It's so fucking annoying.

When this first dropped, a lot of people were like, wait, what are they saying about the right to marriage?

Yeah, hold up.

And, you know, what Sotomayor says is like, hey, when Dobbs dropped and you got rid of the right to abortion, you guys promised that gay marriage was safe, right?

And now you're limiting the right to marriage.

So, ooh, it doesn't really feel like you were being honest.

And, you know, just to take a step back.

Under a very slightly more liberal court, we had seen the expansion of the marriage right.

And you can envision a world where you just see that sort of move into other spheres.

This right has been recognized.

And so how does this right interact with the immigration process, right?

And then a court would have reckoned with that, right?

And what's happening here is that the court is finding a way to pretend that the right to marriage doesn't exist at all.

They're just finding a way to reach the same conclusions they would if there was no right to marriage.

Exactly.

And that's, you know, a very clear step toward, hey, by the way, there just isn't a fundamental right to marriage in the 14th Amendment and gay marriage not protected nationwide.

Yeah, and I do think, I've been thinking about this.

I've been trying to think about how to conceptualize this, but like.

I think it's easy to imagine this as a tension in the conservative movement.

It's like, well, we care a lot about marriage and the sanctity of marriage, but also we care about keeping

Latinos with dice and cards tattooed on their arm out of the country.

And how are we going to reconcile those two important values in this case?

But it's not actually

attention

here because

like, think about how

segregationists responded to having the public square desegregated in the 50s and 60s, right?

They said, well, fuck this.

We're leaving.

We're going to all-white all-white suburbs where we can send our kids to all-white schools.

We're living in areas with racial covenants.

We are defunding desegregated things like public pools and other public places.

We don't want anything to do with it.

All right, if we have to share it, we would rather see it fucking burn.

That's right.

Yeah.

And I think that's a good way to think about the conservative approach to marriage now.

For a good 20 years, they were like, we don't have to share marriage with those nasty fucking queers.

We don't want to.

And now the courts said they have to share it.

And they were like, fuck that.

Fuck marriage.

Like, it doesn't mean shit.

Right.

Because to us, we've always had it.

Yeah.

We've always had it.

And y'all expanded it to include other people.

And we don't like that.

So we will always have it.

We'll chip away at the right.

It doesn't matter.

We've always had it no matter what.

They're not afraid of their right to marriage being chipped away, right?

They're not afraid of their right to live where they want, to engage in the public square.

They're not afraid of that being taken away.

Yeah, so one thing we can sort of drill down on a little bit here, because I think if you're a layperson listening to this, or even a lawyer who just doesn't deal with immigration law, you might think,

why if you're an immigrant, does marrying a citizen provide you like no legal protections, right?

Yeah.

And this is essentially why, that the court treats it as your own individual proceeding.

And the fact that you're married in the eyes of the court doesn't do anything to grant anyone else any additional rights, nor does it grant you much.

It's sort of like the atomization of everyone's rights, right?

Everyone's rights become their own standalone thing.

And you don't really have in the eyes of the court rights as a couple.

And as a result of that, they can just treat you like you have no genuine connection to this country, right?

It's very bizarre that someone who is married to a citizen doesn't have like a very

streamlined process for getting a visa, right?

They should be fucking handing those things out like candy on Halloween.

Sorry.

Conservatives will freak out about green card marriages or whatever, but those are one in a million and people get married to non-citizens all the time.

time and it just i'm sorry it just sort of violates my basic understanding of human dignity to say you can't live together here right yeah you better go to el salvador and hope that they don't have the same laws we do because then you couldn't live together there either right what are we doing yeah yeah i go back to this case really being an example even though it's even though immigration law is not discussed this case being an example of how

our immigration laws are it's what got this couple to this position, that this process was the fucked up process that it was.

Peter, you talked about like how, you know, marrying, if you're a non-citizen, marrying a citizen doesn't really help you.

It doesn't give you those rights.

This case makes it so that the inverse is true, though.

If you're a citizen with certain rights, marrying a non-citizen actually has a negative effect on your rights, right?

It takes away some of your rights.

I do think this is the mathematically correct way to think about this.

This is a theory that I came up with in our group chat 20 minutes before we recorded.

Being an immigrant means you have negative constitutional rights, which means that if you marry a citizen, you don't have due process, you don't have right to marriage, their constitutional rights decrease.

Right.

That's what we're seeing here.

I think that is just algebraically accurate.

I believe that that's right.

You can teach that in ninth grade and it would be

sturdy.

Yeah, I think that's what's like happening here.

It's like rights that you would expect as a citizen when you marry someone just decrease when that person is an immigrant.

There's no way around it.

It's negative rights.

Yeah.

So changing gears a little bit, I talked a bit just a minute ago about the pathologies of sort of conservatives and sharing.

things they value with people they dislike.

We should talk a little bit about the pathologies of liberals as well and how that shapes the future of immigration law, because it's worth noting that the timing on this, right?

Like the and the government here, this was the Biden administration.

Joe Biden, you can argue, at least domestically, the best thing he ever did was

say on camera that Barack Obama supports gay marriage, which like ushered in a whole cultural shift and political shift and change in litigation strategy and all this stuff that led to the recognition of gay marriage and I think a much broader acceptance of LGBTQ people in general in elite circles and throughout American society.

Great thing he did.

Yeah, probably accidental, but yeah.

I mean, what's it the Kinsley gaffe when a politician accidentally speaks the truth sort of thing.

Yeah.

Yeah.

And his solicitor general is arguing here, you know, for a case that should be moot, saying, well, it's not moot because we want to make clear we didn't even owe her this fucking explanation.

You know, we didn't owe her shit.

That's their litigation position here, the fucking Biden administration.

Like,

so this is this pathology on the left that like

the left of center in this country, not like the ideological left,

that like,

oh, you know, people just, they don't like immigrants.

And so we have to sort of follow the public mood and we can't be seen advocating for immigrants or conceding to immigrants or welcoming in immigrants, especially from those countries.

You know, the ones Central, South America, the Middle East.

We don't want it.

Haiti.

And it's just like, no, like you can, you can be better.

You can argue on behalf of people and you can try to change the public opinion.

Like, you could try to change the public mood.

And now we're living in this world where it's been this sort of one-way ratchet, right?

Where Republicans pull right and more reactionary Democrats do shit like this,

right?

Like this case, and concede all the rhetorical points.

And, you know, if you listen to our Patreon episode last week, you know the fucking horrors that has wrought just sending people to die

in concentration camps.

Right.

And think about the people

like Mahmoud Khalil, who have citizen spouses, right?

What might have happened if there was a framework where those spouses had some legal interest in their presence in this country?

Yeah.

Right.

All of a sudden, maybe disappearing someone off the streets is a little bit harder for the government to do.

Yeah.

And a year ago, the Supreme Court said no.

Right.

And I mean, this is ground again that like Democrats have been ceding for years, but you can imagine a framework where a spouse just has a right to a hearing in these cases.

And then bang, you can't do what you did to Mahmoud Khalil.

Right.

I do think like, yeah, this case came down 6-3.

It wasn't even 5-4, right?

Like

in last spring, which means it was before there was mass deportation now signs at the Republican National Committee, right?

This was before

Trump was sending people to a concentration camp in El Salvador.

This was

before

Trump started hinting that he might use troops to secure the border domestically.

Like all this shit has happened since then.

A lot of people are putting a lot of faith in the courts to slow or stop it.

But like in immigration in the immigration context,

fuck, I am not confident at all that the court is going to be any impediment, right?

And so, it's like, what is it going to take for some political leader, for a Supreme Court justice, for, you know, a House minority leader, somebody to be like, enough is a fucking enough.

Like, we have let this fester in our constitutional order for far too long and it has enabled far too many abuses and we can be better.

We can be better as a people, as a party, as an ideological movement, as a country.

We can be better than this.

We need to be.

Next week, United States visa beta, case from a few years ago about state secrets.

What secrets the government can withhold from the courts what were those secrets in this case torturing someone the secrets are usually torture that's the key to the state secrets doctrine yeah

follow us on social media at five fourpod subscribe to our patreon patreon.com slash five fourpod all spelled out for access to premium and ad-free episodes special events our slack all sorts of shit we'll see you next week bye Bye.

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