Will the Courts Let Trump End Birthright Citizenship?

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Let's just assume you're dead wrong.

Let's just assume.

Let's just assume

you're dead wrong.

You're dead wrong.

Dead wrong.

Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.

We're your hosts, I'm Melissa Murray.

I'm Leah Littman.

And I'm Kate Shaw.

Now, May is normally a relatively quiet month on the Supreme Court beat.

The terms' arguments are done, and the justices haven't started cranking out the big decisions yet.

But, of course, nothing is quiet in this timeline.

The court scheduled an unusual May argument over the administration's executive order purporting to end birthright citizenship.

And of course, the Trump administration is continuing, I would say even ratcheting up, its assault on the Constitution.

Suffice to say, we have another jam-packed show for you.

So here's how it'll go.

We will first start with breaking news, including some of the aforementioned constitutional assaults.

We will then break down the birthright citizenship argument with a very special guest, Columbia Law School's Alora Mukherjee.

And we will then end with some court culture, including a very disturbing voting rights decision out of the Eighth Circuit.

Fifth Circuit, watch out.

The Eighth Circuit is coming for you.

Hold my beer.

But first up is breaking news.

And this week was a doozy.

I think we really struggled with whether to start this segment with Stephen.

Miller casually floating, suspending the writ of habeas corpus, the Qatari Jumbo Jet slash Trojan horse and the emoluments clause, Secretary Bear Carcass committing to revisiting the safety of the drug Mifopristone, or the under-the-radar but hugely important attempted Trump takeover of the Library of Congress and Copyright Office.

Each of them could occupy us for a good portion of the show.

So we're just going to have to bring you the highlights.

And because I'm me, we're going to start with Stephen Miller on habeas suspension.

Okay, Stephen Miller, he of the many controversial nicknames, but zero law degrees, thinks that maybe the President of the United States can, that the President of the United States, or at least this President of the United States, definitely should suspend the writ of habeas corpus.

In a move our friend Steve Loddick, described as, quote, factually and legally nuts,

a phrase that could also describe Stephen Miller, said Stephen Miller sauntered before the cameras last week and just casually announced that the administration was considering suspending the writ of habeas corpus.

Here is what he had to say.

Well, the Constitution is clear, and that of course is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion.

So that's an option we're actively looking at.

I like the idea of him vamping for the cameras on the suspension of habeas.

That was

basically what happened.

Yeah.

So even for an administration that plays fast and loose with the Constitution,

this is just a whole new level of nutso.

So, the Constitution frames the language Miller was paraphrasing in the negative as a restriction, making clear that the writ is presumptively available and that it may only be suspended, quote, when in cases of rebellion or invasion, the public safety may require it, end quote.

It's clear there is no rebellion or invasion.

It's also clear the public safety doesn't require it, given that Stephen Miller is basically saying because courts are ruling against us as we attempt to deport people on the basis of op-eds, we'd like not to have habeas at all.

So on top of that, it's also broadly understood that it is Congress, not the president, that can suspend if those requirements are satisfied.

Can I stop you there?

I have a question.

What is a Congress and where can I get one?

You know, I'm in D.C.

right now.

I'll go looking for you.

Is there?

I'll go looking for you.

Go to Walgreens and see if you find a Congress for me.

And or if if I could get it on Amazon, maybe Jeff Bezos has a Congress for me.

Or DoorDash, Uber Eats.

I don't know.

I'll do some clicking later.

Okay.

Do some.

So, you know, it is broadly understood, as I was saying, that it's Congress, not the president.

You know, this alleged entity, Congress, that's more of an abstract entity that can suspend if those are concepts.

That's a concept,

an abstract concept.

The counterexample that's often referenced is Lincoln's suspension of the writ at the outset of the Civil War.

But there, Congress wasn't in session.

And it's an outlier situation that is easily distinguishable from the present moment in at least a thousand different ways.

So had I been in front of the cameras when Stephen Miller was vamping about the suspension, I would have said, assume you're dead wrong guy.

That'll make more sense later in the episode.

I mean,

I think we ought to make that an EDM dance track.

Oh, yeah.

Assume you're dead wrong.

Remember, we got a beautiful

beat to FERC.

Justice Kavanaugh saying FERC.

FERC.

Yeah, okay.

So we should explain that for our new listeners.

There was this moment where Justice Kavanaugh was just listing agencies during an argument.

He entered a fugue state and started naming agencies.

It was amazing.

He just, in his Kavanaugh-esque, weird...

voice said his penchant for bullet points knows no about

FERC, which is the Federal Energy Regulatory Commission.

And so we invited our listeners to make a remix of this and one of them did so.

And it's one of our favorite jams.

No joke.

Ferk bitch.

Exactly.

Anyway, so maybe assume you're dead wrong.

If anyone wants to pick up the mantle and assume you're dead wrong, we would welcome.

If it's great, maybe we'll play it at a live show.

I don't know.

Yes.

Anything could happen.

So the writ of habeas corpus, for people not super steeped in it, is a critical component of our understanding of the rule of law.

The Supreme Court has described the writ as the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.

Now, I do want to sound something of a cautionary note by saying that this valorization of the writ, the great writ, actually might overlook some aspects of the writ's more complicated history.

This is a complicated and also racialized history that I mostly know about because Leah wrote a great law review article about it called The Myth of the Great Writ in volume 100 of the Texas Law Review a few years ago.

So if you want to know more and kind of a more complicated story about the Great Writ, pick pick that up.

But regardless of how the writ has been used or misused on occasion in the past, no one has ever suggested what Miller is suggesting now, which is that the writ is available purely at the discretion of the president.

Someone get this guy a copy of the Magna Carta.

Pronto.

To be clear, let's track the Overton window to be on the cutting edge of the conservative slash MAGA legal movement.

It's no longer enough to want to roll back the civil rights movement or the New Deal or, I don't know, the founding, or even to go back to the 1600s.

Now, MAGA means pre-Magna Carta.

MAGA Carta.

Yeah.

Yes.

Okay.

All right.

Let's leave Stephen Miller no nicknames for all of you sensitive souls in the back with Teutonic inclinations.

Let's talk about gifts or griffs, as it were.

Kate, I meant to ask you, did you get any terrific presents for Mother's Day?

No jets, Melissa.

No jets.

See, you're not doing it right.

As flowers, I loved it.

Cole?

Yeah.

Okay, I'm just looking at the money.

Shadow gave me nothing meaningfully.

Yeah, Cole gave me nothing either.

I got a bouquet of flowers.

I got some homemade art.

It was low-key, but it was low-key.

But no jets.

No jets.

Am I right?

No jets.

That's right.

Because a jet is not a gift, people.

So let's get into this.

Are jets gifts or are they grips?

I think you know where we come down on this.

As the New York Times has reported, the president, Donald Donald Trump, thinks that Air Force One is pretty mid.

And by mid, I mean it is not a state-of-the-art, luxury jet.

And he hates it so much that in his first term, he actually negotiated a new contract with Boeing to replace Air Force One with something more modern and luxurious, something befitting a Bigly president.

But as many of you know, Boeing has had some manufacturing and production issues.

And so it is behind on the contract, which means that in this second administration, President Trump still has to use the mid-Air Force One, which, as we've said, is nice, but not necessarily luxurious.

Enter Qatar.

Qatar is the Middle Eastern country that has offered the president a brand new luxury jet for use as Air Force One, effective immediately.

Hmm.

A free luxury jet from a random country.

Where have I heard this before?

I remember the Iliad, where a random country offered the citizens of Troy a free wooden horse, and they took it into their city walls happily as a sacrificial gift.

And then chaos ensued.

Again, this is literally where Cassandra comes in.

And here we are.

What could go wrong?

Do you think Clarence Thomas saw this news, looked at Harlan Crowe, and was like, you gotta up your game, game, my guy.

I need my own PJ.

Tired emotional support billionaires, wired emotional support emirates.

Oh, he's gotta up the ante.

Keep upping your game, fellas.

Can't stop, won't stop.

So, even setting aside the obvious national security issues with taking a whole ass jet from another country, the Constitution's language on this is pretty clear.

Here's what the Foreign Emoluments Clause of the Constitution, one of the two separate provisions forbidding government officials from accepting emoluments, has to say: quote, no title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of the Congress, side note, what's that, accept of any present emolument, office, or title of any kind whatever from any king, prince, or foreign state, end quote.

But what's a little clear constitutional language between friends, especially royals and aspiring royals, as we all know and established at our live show at Florida.

Constitutions are for cucks or commoners.

Commoners.

So here is the truly, I think, delicious kicker for this whole story, which is something that Forbes broke late last week.

So this lavish jet is just like a scandalous story standing alone, but it somehow gets better, which is that it actually turns out that this jet is something the Qataris have been trying to unload for some time.

They tried to sell it in 2020 and haven't been able to find a buyer.

So it's not actually state of the art.

One aviation expert told Forbes, quote, Qatar, like many modern states, is shifting toward leaner, more versatile aircraft, which offer better economics and more discreet presence for official travel.

Giving the plane, I'm continuing to quote the article, giving the plane to Trump would be a, quote, creative disposal strategy that marks, quote, a farewell to a bygone model of geopolitical theater in the skies.

One more quote, giving it away could save Qatar's rulers a big chunk of change on maintenance and storage costs.

Making Trump happy would be an added bonus.

It is literally like the leftovers of the cutters.

It's re-gifting.

It is re-gifting.

It's like, I love it.

Like, what is the U.S.

presidency for but to unload unwanted jobs?

A white elephant sailor.

Right, literally.

Yeah.

It's just

trash.

So tragic.

I love it so much.

So,

given that this jet is maybe going to become the new, I don't know, Air Force One, we wanted to think about some names to workshop to refer to it.

Something one of our friend of the pod subscribers wrote into the Discord is Marie Antoine Jett.

I don't know.

I kind of like that.

Antoine Jet.

Yeah.

I like that one.

Marie Antoinette.

Another one, Qatar Luments, right?

Like emoluments, little, I don't know.

You got to work harder on that.

Okay, the pronunciation, I don't think it was great or perfect.

Hand me down, force one, another possibility.

How about Fair Force One?

We're still working on it.

Fair force one.

So much time for this.

So much.

We've got plenty of time to get into this.

I do think that the public outcry has been more forceful than I necessarily would have expected in this timeline where it feels like they're just smashing through so many norms people can get inured to it.

And I think the fact that it turns out it's kind of like a dumping operation as opposed to like a buttering up operation might that need to be a bad thing?

It can be both.

Why not?

It can be both, I suppose.

Anyway, I'm not willing to concede this is a done deal, but it probably is.

And so we will have opportunities to work on that.

I mean, didn't Mike Johnson basically say that Congress has no role to play here?

Yeah.

Well, I don't think Congress is going to stop it, but I'm not willing to rule out the possibility that the public pushback won't.

In any event.

Well, I have a jet I could sell you.

Or just hand me off as a friend.

No strings attached.

No strings.

Next piece of news we wanted to to highlight is some developments regarding RFK Jr.

and the Department of Health and Human Services and Mifopristone.

So we've had a couple of developments regarding specifically Mifepristone, one of the drugs in common use for terminating early pregnancies.

So listeners, you may recall that on our last episode, we noted that although the administration had moved to dismiss a challenge to mefopristone brought by a group of red states, we were not actually breathing easy because we were worried that the administration was choosing to hold its fire in court only or at least in part so that it could focus on ending access to mefopristone via the FDA rather than in the courts.

And one of the reasons that we were increasingly nervous about this was because a conservative organization, the Ethics and Public Policy Center, issued a scare quotes report last week purporting to raise safety concerns about medication abortion.

Well, honey, since this is just the early days of what the West Village girlies are calling hot Cassandra summer, that report has now jumped the species barrier from the world of think tanks to the aforementioned Congress, which has magically reconvened in order to discuss said report, as well as in the executive branch.

Specifically, during a hearing last week at which Secretary Whale Juice testified, our least favorite senator and most reviled author, Josh Hawley of Missouri, brought up this scare quotes study.

You and I have talked before when you've been before this committee, and you and I have talked in person a number of times about Mifiprestone.

I just want to follow up with you because since the last time you were before the committee, the last time you and I spoke, there's been a major study by the Ethics and Public Policy Center of 865,727 prescribed cases of Mifiprestone abortions, chemical abortions, between 2017 and 2023.

Have you seen the study?

Are you familiar with this?

Do you want to say that?

Yes, I am.

You previously testified to the committee that you would do a top-to-bottom review of Mephoprestone.

Mephoprestone is subject to a REMS currently.

You have said you'll do a top-to-bottom review.

Do you continue to stand by that?

And don't you think that this new data shows that the need to do a review is, in fact, very pressing?

I think the

new data, first of all, it validates the CAS study,

which is previously probably the most comprehensive

data that we've seen on it.

And

it's alarming.

And clearly, it indicates that, at very least, the label should be changed.

You say that it probably indicates the label needs to be changed.

Do you think it's also important as part of your review to consider whether it's necessary now to put back in place the long-standing safety protocols that always accompanied mephoprestone until the last administration?

In-person dispensing, doctor visits, screening for ectopic pregnancies?

I know that Marty McCary will make a recommendation.

I feel that

the policy changes will ultimately go through the White House, through President Trump.

But you'll make a recommendation based on the data.

Yes.

Good.

To remind you of what we said last week about this quote-unquote study, this is not a quote-unquote study that anyone should be relying on for policy change.

It is not peer-reviewed.

It is not published in a medical journal.

There are lots of things that we could critique about its methodology, but why should we do the work?

The folks who are touting it are already dismantling its methodology.

Christina Francis, who is the head of the American Association of Pro-Life OBGYNs, warned her colleagues not to misrepresent the paper, acknowledging that the quote-unquote report was not a study in the traditional sense and not conclusive proof of anything.

That seems damning.

But that's not enough.

to stop Manhood's great defender from pressing Kennedy to say the study is alarming, that it may require not just a label change, but perhaps a total change in safety protocols.

Note that Josh Hawley's wife, Erin Hawley, who barely merited a mention in Manhood because reasons, was one of the lawyers who argued Hippocratic Alliance or Alliance for Hippocratic Medicine versus FDA before the court.

That was, of course, the challenge to medication abortion.

He also says that although he, Kennedy, will make a recommendation about abortion pill restrictions, the decision, quote, will ultimately go through the White House, through President Trump, end quote.

This is encouraging that apparently Donald Trump is making decisions rather than just outsourcing them to any other individual who might have some responsibility.

So we're going in on the unitary executive theory again.

And yet I don't think that's what Congress provided for in the Food, Drug, and Cosmetics Act.

But obviously these guys think that Article II allows them to do whatever the fuck they want, all of this and more.

So this is a very scary signal signal about where the administration may be going with medication abortion.

And in case they really do try to implement this change to either change or even eliminate the availability of mifopristone, I want to flag something that I've heard from some folks in medicine that they think is important to elevate, which is that Definitely these attacks on Mifopristone are outrageous, as we've just been discussing.

This pseudo-report doesn't remotely suggest that mifopristone is unsafe.

It's super safe and it's super effective.

But that might not stop them from from trying to eliminate its availability.

So it's important to remember that mefopristone is one of two drugs used to terminate early pregnancy.

The normal regimen right now is mefopristone and mesoprostol.

And miso, as people refer to the second drug, is effective at terminating early pregnancies even without mefopristone.

And whatever happens with mefopristone should not affect that.

And one of the reasons why whatever happens with mefopristone will likely not impact the availability of mesoprostol is because mesoprostol is indicated for other kinds of conditions.

For examples, it's used to treat ulcers.

But I want to just sort of sound a word of caution.

The fact that mesoprostol might still be available, even if the accessibility of mepopristone is more curtailed, should not mean that we don't fight for full access to mefopristone because one of the things that is, I think, you know, a deterrent to the prescription of mesoprostol alone is that it can cause serious reactions like cramping, which may deter some people from using it as a method for terminating early pregnancy.

So the ideal protocol would be to use both drugs.

And I think a number of physicians worry that if people think mesoprostol is available, they won't fight for mifopristone.

And then there will be a world in which some people are deterred from just the mesoprostol alone protocol because of these side effects.

It's all about upping women's pain and suffering.

That is the through line.

So

yeah.

As we talked about in our last episode on May 9th, Trump fired the head of the Library of Congress, Dr.

Carla Hayden.

Dr.

Hayden was the first woman and first black head librarian.

And of course, that was just intolerable to the Trump administration.

As J.D.

Vance had previously indicated, it's just really hard to, you know, have to go to work and work alongside, you know, women and people of color.

They just bring down the vibes really hard.

So the unceremonious termination of the amazing Dr.

Hayden happened a week ago Friday.

Then over the course of that next weekend, I don't know about you guys, but I started getting messages from friends in both kind of library world and a little bit in Congress basically indicating that this was a kind of five-alarm fire and also that Doge was reportedly on its way to the Library of Congress planning to fire everyone and lock the building down.

But they don't know where libraries are.

So that.

Or what books are.

So that's

this room.

The lockdown hasn't yet materialized.

It's actually kind of true and maybe that is why.

But in any event, so the Library of Congress has always been understood to be a non-partisan institution, right?

Like until now, libraries, information, literacy have not been understood as partisan, even when other parts of the federal government, the EPA, for example, have been.

Library of Congress never was.

It is also the case that, as librarians will tell you, the Library of Congress is just a critical custodian of the nation's memory and history.

So I know from Penn Library's terrific head, Amanda Brunyan, who I asked some questions about the Library of Congress, that it holds the sole copy of numerous significant pieces of the cultural and scholarly record.

So here's a non-exhaustive list.

The Library of Congress has the original rough draft of the Declaration of Independence.

It has Jefferson's draft of the Virginia Constitution, Madison's copy of the proposed Bill of Rights, the first draft of the Emancipation Proclamation, the first draft of the Gettysburg Address.

The list goes on and on, especially with those last two.

You truly shudder to think what Stephen Miller would do with them if he got his hands on them.

The Library of Congress also provides substantial support to Congress, again, you know, when they are around doing things.

And it has components that include the Congressional Research Service and the Copyright Office, in addition to all the kind of stewardship of the nation's scholarly and cultural history.

All right.

So the weekend after Dr.

Hayden was fired, the White House announced that it was also firing the head of the Copyright Office, the Register of Copyrights, which is part of the Library of Congress.

The Copyright Office has been around since 1897, so we have a a history and tradition of it.

It's in many ways a legislative office that serves some executive functions, and it may not be a coincidence that the firing of the head of the Copyright Office happened right on the heels of, wait for it, a major report on artificial intelligence that the Copyright Office issued.

And while the report was pretty nuanced, it came down broadly on the side of the rights of copyright holders, aka humans, and thus Big AI wasn't too thrilled with it.

Pause it.

Is that the catalyst for the White House's removal of the head of the copyright office, Shira Pearlmutter?

Is that what prompted this?

Hmm.

Yes, because AI are the only friends that Stephen Miller and J.D.

Vance could possibly make.

So they would be very lonely without it.

So if that wasn't super sus, last Monday, the White House announced that the president was naming Todd Blanche, the deputy attorney general, as the acting librarian, because every MAGA yes man needs to hold at least two positions: be it Ed Martin, Russell Vought, Marco Rubio.

I think it speaks to how hard it is to get people to do this awful work.

But to be clear, this would place a key MAGA loyalist in charge of not only the collections, but also pretty sensitive information and activities having to do with Congress, like the Congressional Research Service or the HR records of congressional members.

But it sounds from reporting as though staff members initially and maybe still have refused access to two department officials blanche chose for the key roles and as of this recording so far the library of congress may be winning this standoff it's hard to know for sure but that does seem like maybe that's what's happening on the ground so if that's right then one key takeaway is do not with librarians i just can imagine the librarians holding up books in front of doge and they were like stop stop like like like they're like literally silver crosses or like sheaves of garlic.

Yeah, yes.

Oh my god, it's amazing.

They're like literally being repelled by knowledge.

This is why these schools are banning books and coming after libraries.

They know they can't handle them.

Yeah.

You can't handle the truth.

It also is the case that in any normal timeline, a functioning Congress would, even if it couldn't bestir itself to protect independent agencies and, you know, the statutes that it passed, it would care about parts of the Library of Congress.

So as we said, this is kind of a unique and sui generis kind of an entity whether these entities are properly conceived of as legislative or executive they definitely do a ton of work for congress they have a ton of non-public information that you would think that congress would not want big balls getting his hands on and

so if anyone at the library of congress or the copyright office is willing to talk to us we would love to know more about what is going on inside there and if not you know may god be with you seriously Let's shift to the third branch, the least dangerous branch.

Insert laugh track here.

We got one opinion from the court this week in a case called Barnes versus Felix, in which a unanimous court rejected the Fifth Circuit's moment of threat rule in Fourth Amendment cases.

Under the Fifth Circuit's rule, which applied in cases involving Fourth Amendment challenges to the use of deadly force, courts could look just to the moment at which an officer perceived a threat.

In this instance, the moment that led the officer to shoot and kill the petitioner, rather than considering all relevant circumstances.

In this case, that moment of threat rule led the lower court to conclude that the case against the officer had to be dismissed because in the moment of the use of force, or the two seconds before it, it was reasonable for the officer who was standing on the doorsill of a moving car to discharge his weapon into the car.

But in its unanimous opinion, the court suggested that it also matters how the officer came to be standing on that doorsill shooting down into the car.

And it remanded the case back to the lower court for it to conduct the Fourth Amendment reasonableness analysis without applying this mistaken moment of threat rule.

Justice Kagan wrote the majority opinion, a tight nine-pager.

Because we are, as ever, in the worst of timelines, there was, as ever, a cav currency in which Justices Alito, Thomas, and Barrett joined.

In that cal-currence, Justice Kavanaugh weighed in to remind America that, one, he is a nice guy, despite what you may have have heard, and two, that as a nice guy, he's concerned about the dangers that traffic stops pose to police officers, and he definitely backs the blue.

Mercifully, there were no bullet points in this opinion, though there was a list, because of course there was.

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We are now going to shift gears to discuss the oral argument that was heard last Thursday in Trump versus CASA, which is actually three consolidated cases all about the president's executive order purporting to end birthright citizenship.

But although that was the substance of the underlying EO, this oral argument seemed to be more immediately about a narrower question.

Specifically, that question was whether the judiciary has the power to stop the administration from implementing this executive order through the use of what is known as the nationwide injunction.

So, in order to get a full briefing on what happened here, we have brought in an absolutely fantastic guest.

We are delighted to be joined by Alora Mukherjee, a professor at Columbia Law School and the director of Columbia's Immigrants' Rights Clinic.

She also serves on the board of the Asylum Seeker Advocacy Project, which is one of the plaintiff organizations that challenge the birthright citizenship EO.

Alora, welcome to Strict Scrutiny.

Thank you so much for having me, Melissa.

It's great to see you and Kate and Leah.

Well, Laura, we're so happy to have you with us.

And maybe let's start by asking you to remind our listeners of what exactly the executive order at issue in this case purports to do.

On January 20th, President Trump signed an executive order that purports to end birthright citizenship in the United States.

It would make the babies born to those who are not U.S.

citizens and those who are not lawful permanent residents not citizens of the United States.

It purports, through the stroke of the President's signature, to overturn the principles underlying the 14th Amendment of the U.S.

Constitution and render, potentially, many, many thousands of babies stateless.

That's what this executive order purports to do.

And the challengers in this case included immigrants rights organizations like CASA and Asylum Seekers Advocacy Project, as well as a number of states.

Alora, can you go through the key merits arguments that you and the other litigants were making in this case?

The people who are challenging the executive order and the states and organizations challenging the executive order say that the executive order is blatantly unconstitutional, that it is flatly at odds with the 14th Amendment, which enshrined birthright citizenship into the Constitution.

The executive order is also at odds with more than a century of Supreme Court precedent, going back to Wong Kim Ark from before the 1900s, when it was held that a person born on U.S.

soil is a U.S.

citizen, regardless of the citizenship status of their parents.

That principle of birthright citizenship has been reaffirmed in multiple Supreme Court cases.

It has also been codified through legislation by Congress twice, both in 1940 and then again in 1952.

In addition to the Constitution itself, as well as the case law and the legislation on this point, there's also decades and decades of executive branch practice, all of which relies on the basic, simple, clear idea that all people born on U.S.

soil are U.S.

citizens.

It's almost like there's a history and tradition of recognizing birthright citizenship.

Absolutely.

Absolutely.

This idea of birthright citizenship has never been challenged until now in any serious way.

So it seemed clear from the arguments that a good portion of the court agrees with you all on the merits.

Throughout the argument, Justice Kagan made clear just how right you are.

So let's take a listen to some Elena Kagan greatest hits.

Let's just assume you're dead wrong.

The assumption that I want you to make is that on the merits, which of course you did not take to this court, on the merits you are wrong, that the EEO is unlawful.

You're ignoring the import of my question.

I'm suggesting that in a case in which

the government is losing constantly, there's nobody else who's going to appeal, they're winning, it's up to you to decide whether to take this case to us.

If I were in your shoes, there is no way I'd approach the Supreme Court with this case.

So you just keep on losing in the lower courts, and what's supposed to happen to prevent that?

On the African colours, and then they win, and again, I mean, you need somebody to lose, but nobody's going to lose in this case.

So, Alora, the question of whether or not the executive order is constitutional, and it seems very evident that it is not constitutional just based on what you've said about this history and tradition and Justice Kagan Riffing, there's no question about the substance here.

Instead, though, the courts seem to be trained on an entirely different question.

So can you give us a sense of what exactly the administration asked the court to decide here?

Absolutely.

So all the lower courts have uniformly ruled that the executive order is blatantly unconstitutional.

So that is not the question that the executive branch brought to the Supreme Court, the constitutionality of the executive order.

Instead, the executive branch is asking the Supreme Court to rule on the issue of nationwide injunctions.

Can one district court judge issue an order that applies to people across the country that would stop the implementation of this executive order in particular and executive actions more generally?

I want to play just a quick clip from Justice Sotomayor, which seemed to me like her trying to like speak MAGA Constitution to like a broader population and say like, if it's not the case that a court can stop super unconstitutional stuff, you might be troubled by what follows in a different presidency.

And so, let's play that clip here.

So, when a new president orders that because there's so much gun violence going on in the country, and he comes in and he says, I have the right to take away the guns from everyone.

Then, people and he sends out the military to seize everyone's guns.

We and the courts have to sit back and wait

until every named plaintiff gets, or every plaintiff whose gun is taken comes into court.

She wasn't the only one trying to translate this question into MAGA.

Kelsey Corcoran, who argued on behalf of the individual litigants, also noted that there might be cases where the Chamber of Commerce wants a nationwide

case.

The NRA.

She's like, I too am fluent in MAGA.

But those were just among the highlights and big moments here.

I want to highlight a couple of others, though.

As we just discussed, the administration petitioned and the court set the case for this expedited briefing and oral argument outside of its regular calendar because it wanted to address this question regarding the permissibility of nationwide injunctions.

And the Solicitor General, John Sauer, who our listeners will recall was also previously the president's personal lawyer, who argued the immunity case before the court.

He decided to begin and to end his argument by insisting that despite the Constitution's plain meaning, despite this clear history, and despite the substantial Supreme Court precedent all confirming that the Constitution explicitly confers birthright citizenship, the president is nonetheless authorized to lawfully issue this executive order.

So, those were his beats, and he stayed on them remarkably consistently throughout this argument.

As I think about how weak the substantive merits arguments are and how obviously the justices seemed to see that, it kind of boggles my mind that he began by even having the gall to say that the order reflects the original meaning of the 14th Amendment.

But he opened his mouth and said that, and he ended with it.

And it seemed pretty clear that there was like one person he wanted to hear him make that argument, and that was the president.

Because otherwise, there's no reason to say the things that are, I think, only going to alienate the justices.

And indeed, throughout the substance of the argument, for those with the attention span to actually listen to the whole thing, of course, the focus was on this claim about the scope of relief, about this argument that lower courts are out of control, that there are too many nationwide injunctions, that they impede the executive from implementing its will, and basically that the court needed to put a stop to it by ruling that the injunctions in this case, which as Alora said, have unanimously emanated from courts that concluded that these challenged executive orders were very likely patently unconstitutional, exceeded the bounds of judicial authority.

So, Elora, can I ask a question really quick?

Do you think he was arguing to an audience of one and just like actually talking past all of you as challengers that this was really about John Sauer arguing Donald Trump to Donald Trump?

Maybe.

It very well could be.

It was interesting to listen to the arguments because none of the justices even questioned or tried to defend the constitutionality of the underlying executive order.

None of the conservative justices even made any effort to do that because the order is so blatantly unconstitutional.

It was also interesting to hear some of the conservative justices raise real questions about how this executive order might be implemented on the ground if a nationwide injunction is not permitted.

One of the more interesting exchanges I thought was between Justice Kavanaugh and Sauer when Kavanaugh was asking how will this be implemented throughout the country?

And the response from the executive branch was, well, at the hospital, people will need to check the citizenship status or immigration status of the parents who are delivering babies.

So it's worth noting that this executive order, if implemented anywhere, would burden not just those who are immigrants, but also those who are U.S.

citizens, because every person delivering a baby will need to show what their immigration status is.

And that also led to this stunning moment where it seemed like even the federal government didn't really know how this order would be implemented or carried out in the event they were allowed to do so.

So let's just play that clip here.

For all the newborns, is that how that's going to work?

Again, we don't know because the agencies were never given the opportunity to formulate the guidance.

It's like they're going to play trial and error with babies' citizenship.

You know, they have a concept of a plan, not an actual plan.

And just to kind of underscore what Alora said, I think it's so important.

And this came out in the argument, but just to be really explicit about it, this affects everyone you know who might have a baby if this order goes into effect.

Because the administration, I wouldn't put it past them to try to set up some scheme in which only people they think might not be citizens are subject to some kind of verification.

But I don't know how that could even be workable, even if they would try.

Well, I do.

I do.

Anyone who, wait, so tell me.

Racial profiling.

Like, hey, brown lady, are you having a baby?

I know you're in the throes of labor, but do you have a birth certificate?

Do you have a real ID?

Racial linguistic profiling, sure, they could try, but I think it'd be very difficult.

And I do think that at least one likely outcome is every single person, you are in labor and the stuff you have to bring to the hospital is not just like your comfy clothes and straws to drink out of and the other stuff you bring to the hospital, but your birth certificate.

Like, give me a break.

But that is the world that implementing this executive order would bring about basically immediately.

So I want to get into more what implementing the order even partially might look like in the event the Supreme Court doesn't just full-on deny the application, because that's part of what.

I am watching for and makes me so concerned about this.

But let's set the stage for what the court might do on this nationwide injunction question.

So going into the argument, there was a lot of reason to be super nervous that the court was going to use this case as an opportunity to deal a death blow to nationwide injunctions.

For one thing, anytime the court has taken cases from the shadow or emergency docket and put them on the regular docket, they have always ruled for the applicant.

Also, a number of justices on the Supreme Court have been highly critical of nationwide injunctions in some cases.

You know, we have also been critical of them, noting that their prospect fuels opportunistic litigation and strategic filing practices.

We all know that a lot of the litigation over Biden administration policies was filed in single judge divisions like Amarillo, Texas, where America's top research scientist slash economist slash doer of all things, Matthew Kesmerich sits.

We've also noted that much of the criticism of nationwide injunctions really paints with a very broad brush.

And one of the things I think is worth emphasizing here and was emphasized at the oral argument is that you can draw really important distinctions between the cases that are filed in Judge Matthew Kazmarek's district and the cases on which he has ruled and the cases that are at issue here.

And the underlying issue is the citizenship status and the rights of millions of children born in this country who have an expectation of birthright citizenship that would effectively be rescinded under this clearly unlawful executive order.

Yet, despite those very salient distinctions, there is still something that I think is cross-ideologically unifying and for that reason appealing about criticizing nationwide injunctions.

And I think that's why this case is so scary.

There's a way in which the administration can lose on the merits here and win, not just in this case, but in a range of future cases by getting nationwide injunctions off the table entirely.

Well, at least in theory, that was possible.

And I do think that we all came out of this argument feeling a little bit different about the likelihood.

I guess I would say that I thought the argument, though I was very nervous going in for the reasons that Leah just mentioned, I thought the argument created at least the possibility that, and maybe a good possibility, that a majority of justices understand that even if there are very real problems in some cases with the abuse of the nationwide injunction, this is not the case to use to rein in the practice.

I think that's right, but it did seem like a lot of the court was casting about for some kind of limiting principle that would allow them to restrict the use of the nationwide injunction more generally, even if it left them with the prospect of the nationwide injunction as a form of extraordinary relief in cases like this one.

And the challengers seem to be suggesting that you could draw the line at cases implicating constitutional rights like this one.

But I think the trouble with drawing the line in that way is that

it's going to be very unlikely that the court provides clear guidance about what those distinctions would be and where those lines could be drawn.

And we would be left with, I think, this administration pushing on what falls in and outside of the nationwide injunction eligibility bucket.

And so there are going to be new fights over what rights are significant enough to warrant a nationwide injunction.

And so I guess, Alaura, one of the questions that I had coming out of this is, I understand the

the rationale for helping the court find a middle ground here since it seems to be attractive to them.

Do Do you worry, though, that in drawing these distinctions between cases, that going forward it may be harder to challenge other EOs or other administration policies?

Yes, that's certainly a possibility that I'm concerned about.

But I think this case is very clear.

The executive order is blatantly unconstitutional.

Multiple justices and all of the litigants before the court at some point conceded that it might be worth doing briefing on the merits or granting cert before judgment in this case and that seems like the appropriate way forward.

This is not the case in which to consider whether a nationwide injunction is appropriate or not.

If a nationwide injunction is not permitted in this case, it leaves the question of in what case could it ever be permitted, given how blatantly unconstitutional the executive action is here.

And so I hope that in the coming days, we will see an order from the court requiring supplemental briefing on the merits question because that is the issue that the court should be dealing with here.

Yeah, so I guess I might sound like the turret in the punch bowl here because I want to explain what I heard during the argument.

And I was admittedly listening as I was flying into DC and DCA in particular.

So I might have just been completely out of my mind.

Although I think Steve Vladek

kind of had the same read, as well as Michael Popok and Alex Aronson at Legal AF.

So I don't think I'm totally out there.

But so I didn't hear five votes for no nationwide injunctions at all.

So that was good.

I also didn't hear five votes for let's just straight up deny the administration's request to stay the lower court rulings because obviously these nationwide injunctions are perfectly permissible and the district courts were right to order them.

So that leaves me with a few different possibilities.

One is is they partially grant the applications or they grant them and then they send the cases back down to the lower courts to make some additional determinations or findings.

Like they tell them you first have to order class certification before granting this kind of relief.

Or you have to consider these additional factors like the strength of the underlying merits or you know, other kinds of irreparable harm that we wouldn't ordinarily require, but are specifically required for nationwide injunctions.

So I can see the Supreme Court eventually saying some kind of nationwide relief is appropriate here, but I don't know that I came out from that argument thinking they are just going to straight up deny the stay application or at least all of the stay applications.

And I worry that that is going to create a period of considerable uncertainty and chaos that I was hoping we could explain.

So, Alaura, could you tell us if the stay applications are just not denied, full stop, and if the Supreme Court doesn't take the route you suggest and order supplemental briefing to consider the merits and instead sends the cases back down to the lower courts to make some set of additional findings before restraining the order.

So, the order goes into effect for some time, maybe in some places.

What does that even look like in the administration's view?

It would be absolutely devastating for families across the country, all families, not just immigrant families.

If the executive order is not stayed nationwide and is allowed to go into effect in only some of the states, perhaps dozens of states, then all expecting parents would need to somehow prove their citizenship status when they are delivering.

It would pose enormous burdens on hospitals who don't have the legal and technical ability to assess whether or not immigration paperwork gives someone status or not and if it does give a person status what kind of status is it lawful permanent resident status is it US citizenship and then it would also create enormous devastating consequences for babies born during this period of time.

If a baby is born in a state where the executive order is enjoined and then crosses state lines to a place like Texas where the executive order is in effect, would the state of Texas recognize that baby's citizenship?

What if that baby and their family are arrested and detained and put into removal proceedings?

Would that baby have an opportunity to challenge that potential rapid removal from the United States?

If so, how?

So not only would babies, literally babies, we're talking about newborns here, be expected to somehow defend themselves in federal court, enforce their right to U.S.

citizenship, and stop their own removals.

In the face of an executive branch that we have seen in hundreds and hundreds of cases since January 20th is intent on removing people from the United States as quickly as possible, it would be just a devastating mess and it would also invite so much more federal litigation on this question.

And this came up in the oral argument on Thursday too.

The executive branch was asked, so if a Court of Appeals, the Second Circuit, issues an opinion finding that the executive order is unconstitutional, will the executive branch respect that?

And there was no clear answer from the executive branch on that point, which would lead to what Justice Jackson described as a catch-me-if-you-can regime that is wholly inconsistent with the rule of law.

And we want to get get deeper into that question.

But first, just on the administrability and kind of chaos point, I want to play a clip from the New Jersey Solicitor General, Jeremy Fagenbaum, who was representing the states.

So there was Fagenbaum for the states, and then Kelsey Corcoran, who Melissa already mentioned, arguing for some of the individuals and organizations.

So Fagenbaum is essentially, he's explaining why New Jersey should get complete relief in the form of a nationwide injunction, but just kind of illustrating from the state's perspective that the chaos that anything less than nationwide relief would necessarily lead to.

And that comes to the United States' alternative, Justice Sotomoyer, which is they say, okay, maybe their citizenship turns on when they enter New Jersey, maybe for some purposes, maybe for all purposes, depending on which sentence you're looking at in the emergency application.

And there are three problems either way.

The first is it will undermine the administration of our benefits program.

So individuals will move in.

When they were born, they were treated as non-citizens.

They didn't get Social Security numbers because they wouldn't have been eligible for the enumeration at birth program in their states.

And they're going to arrive and they're going to seek benefits that we administer.

But federal law requires that they have social security numbers for the administration of those benefits.

This is 7 USC 2025 for SNAP.

This is 42 USC 1320B7 for TANF for Medicaid and so on.

So they're going to need to have Social Security numbers.

They're going to arrive without them, even though they were, under this court's precedence, citizens who should have been in the enumeration at birth program who should have had Social Security numbers.

And it's going to be a burden on us, either in delaying the benefits, training county social service workers, in having to administer benefits

without the SSNs on a provisional basis.

So that's the administration of the benefits.

Let me give an example on participation, which we have responsibility for as well.

These are babies who were told that their families were told that the babies are undocumented, they aren't citizens, they're not eligible for these federal programs when they were born.

They come into our states, they think they're now ineligible, they don't realize their child is a citizen entitled to these federal benefits.

So, I want to expand on some of the problems with these middle-of-the-road solutions that wouldn't have the court just completely deny the applications, but also wouldn't have them say nationwide injunctions are never permissible.

So, in the event they, again, don't just deny the applications and therefore disturb the temporary restraining orders and preliminary injunctions, absent further findings, there is going to be a question of how will it take to get this case back up to the United States Supreme Court to resolve the merits?

Because any period in which the order goes into effect, as we've made clear, could be real chaotic cruelty.

Like it risks the administration deporting more United States citizen babies.

But the Chief Justice had the gall to tell us, don't worry.

Three years, four years.

We've been able to move much more expeditiously.

I think we did the TikTok case in a month.

I literally just stared in Trump versus

like, sir, are you seriously opening your mouth to say this?

Like,

what?

You can move expeditiously when you want to.

Thank you for confirming that.

As Tatiana would say, choices.

Completely.

I don't even know that reference, but I think I understand it.

And I actually, as infuriating as I found that comment, I actually love that he told us as clearly as he did, we go fast when we want to and when we don't go fast.

We bid you that.

That's a choice.

We bid you that.

But he hasn't said it with his mouth.

Now he has.

But didn't Donald Trump also say it with his mouth?

Thank you.

Yes.

I always want to say I won't forget.

I won't forget.

I won't forget.

But Roberts looked like he wanted to melt into the floor.

And here he just like stood up and said it.

So I feel like we...

You say it with your whole chest, John.

It's true.

At the State of the Union, John Roberts was a little bit like what happens at fight clubs stays stays in fight clubs.

No, now we're all, we're all, we're all ready.

The first rule of fight club is you don't say what happens.

This is all fight club now.

It's all fight club.

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So, okay, I wanted to expand on the problems of if this case doesn't get to the Supreme Court quickly and instead you have it percolating, which is apparently so great in the lower courts, what would that look like on on the ground?

So there's a possibility some courts somewhere would deny class certification and therefore be deciding individual cases brought by individual plaintiffs about whether the order is unlawful and they are citizens.

And that could matter a lot because the government's apparent position, which Alaura, you were gesturing at before,

is that when it comes to district court orders and court of appeals decisions, the government doesn't have to apply those decisions to people other than the plaintiffs, to people not before the court.

So this would mean that if a court says this U.S.

citizen baby who challenged the order is a citizen because the order is illegal, the government's view is they can still apply that illegal order and deny citizenship to other babies, even in that same district or circuit.

We've made this point before, but the whole idea of limiting the option for aggregate claims means that individuals will have to bring these claims, whether whether it's in habeas or in this case, like in individual jurisdictions.

And this is all happening at a time when the administration has really reduced the availability of legal resources by going after law firms that had in the past provided pro bono assistance to litigants like the ones who might challenge this kind of thing.

And public interest outfits are really strapped at this point.

So, you know, Alora, one of the things I worried about here is that they're requiring almost individualized claims to be brought at a time where you're you're just not going to have enough lawyers to meet that need.

Right.

They're requiring individualized claims to be brought for an incredibly vulnerable population, for a population that may not have access to a ton of resources, may not have the ability to hire a lawyer, may not speak English, may not

understand all of these legal concepts that we're currently debating and discussing right now.

And expecting these families to go to court to enforce citizenship is an incredibly difficult burden for them, especially when many of the families will be told at the hospital correctly or incorrectly that their child is not a U.S.

citizen and doesn't qualify for certain benefits and privileges that are associated with citizenship.

And on the issue of the administration standing in front of the court now and saying all this stuff should be routed through the class action device, but then what will they say if in fact fact, they prevail and there is an effort to actually do class certification?

They certainly did not disclaim a future position that class certification is improper in most or all of these cases.

And I feel like they came actually pretty close at a couple of points, they being the federal government and Sauer arguing for the federal government, to basically saying, yeah, like we're going to fight you at the next juncture if we have the chance.

So let's play a clip of Sauer talking to Justice Kagan.

Well, you might dispute it.

And

I mean, I think the question is:

is there a class that's just all

children of

people who have entered illegally?

You know, is that an appropriate class?

Can the same thing be done under Rule 23?

Or are you going to tell me that, no, Rule 23

has lots of requirements and

you'll never be able to certify a class like that?

Rule 23 provides the equitable tools subject subject to rigorous criteria, appropriately rigorous criteria, to obtain that kind of class-wide information.

That suggests to me you're going to be standing up here in the next case saying that Rule 23 is inept for this circumstance, with this number of people, maybe with some questions that are individual, who knows.

So let's put Rule 23 aside, because I got to tell you, that does not fill me with great confidence.

There were some moments during this argument where Sauer's shortcomings as an advocate became became extremely clear to such a point where I wondered, is it possible he just argued his way to a loss?

So there was this exchange with Justice Kagan and then another one that generated incredulous reactions that we wanted to highlight.

So here is the one with Justice Kagan.

I can't say as to this individual case, generally our practice is to respect circuit precedent within the circuit, but there are certainly a circuit.

Yes, that is generally your practice.

And I'm asking whether it would be your practice in this case.

I can't answer because it would depend on what the lower court decision said.

So there are circumstances, as I was suggesting.

I actually do want to play the full Barrett clip here because she returns to that exchange, sort of like we've now noted several times when there's an advocate, she is disposed to want to help and she feels they have given an unhelpful answer.

She offers them a lifeline, but

she can help you.

Exactly.

I don't think he took the lifeline as she was hoping he would.

Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York, because you might disagree with the opinion?

Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice.

And that is not.

This administration's practice or the long-standing practice of the federal government.

And I'm not talking about in the Fourth Circuit, are you going to respect a Second Circuit?

I'm talking about within the Second Circuit.

And can you say, is that this administration's practice or a long-standing one?

As I understand it, long-standing policy of the Department of Justice.

Yes, that we generally, as it was phrased to me, generally respect circuit president, but not necessarily in every case.

And certain examples, some examples might be a situation where we're litigating to try and get that circuit president overruled and so forth.

Well, okay, so I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955 and you think it's time for it to be challenged.

That's not what I'm talking about.

I'm talking about in this kind of situation.

I'm talking about this week the Second Circuit holds that the executive order is unconstitutional and then what do you do the next day or the next week?

Generally, we follow that.

So you're still saying generally?

Yes.

I mean, so much merit going on here.

I just like,

and the thing is...

This is what happens when you appoint toadies to positions.

Well, I mean, but even if he is a toady, and even if that was literally the world's worst answer, there were at least two people who were like, yeah, I'm buying what you're selling.

And I think you know who those two people were.

In any event, Justice Kagan did pin down John Sauer on whether the administration would obey not just judgments, but also opinions of the Supreme Court.

And that was a very revealing exchange as well.

So finally, once it gets to us after four years, you're going to respect that.

Yes, and in addition, we may well respect the white president of the Second Circuit.

It just is.

Well, that is very reassuring, sir.

Very, very reassuring.

The idea that courts can't do things that incidentally benefit or apply to non-parties is, to put it mildly, listeners, absolutely unhinged.

And Justice Jackson had this great response for that claim.

The plaintiff is the only person who can go to court after you violate this order and enforce it.

Other people are incidental beneficiaries of a court ordering you to follow the law.

I mean, that's like everyone in the world.

When a court says, follow the law, anybody who would have been hurt by your not following the law benefits.

Okay,

I don't understand why that would limit the court in its ability to tell you, don't do this unlawful conduct.

Yeah, she almost here seems to be saying, let's just reframe this.

Actually, the thing we should be focused on is if a court tells a defendant, stop doing the unlawful thing, the defendant is the important player here.

Everybody else benefits from the stopping of the unlawful thing.

But all of this, like, very technical fixation on the plaintiff beneficiaries is maybe the wrong way to look at it.

At least I thought that's what she was driving at here.

There's also an important theme that came out, which is that, so fine, the administration has conceded.

It has deigned to say, yes, we will listen to you, Supreme Court, if you tell us to stop doing the unlawful thing.

But there's a possibility the administration will just keep losing below and will never take the case to the Supreme Court.

And so the Supreme Court, in those circumstances, would never have the chance to answer the question that the administration has said it will listen to.

So both Justice Kagan and Justice Jackson drew that out in these exchanges.

You're going to have like individual by individual by individual and all of those individuals are going to win and the ones who can't afford to go to court, they're the ones who are going to lose.

The tools that are provided to address hypotheticals like this, again, I

This is not a hypothetical.

This is happening out there, right?

Every court has ruled against you.

We've only had snap judgments on the merits.

Obviously, we're fully briefing the merits in the courts of appeals, and our arguments are compelling.

More fundamentally, in response to the publication of the public.

The question to you, like the

real brunt of my question is: in a case like this, the government has no incentive to bring this case to the Supreme Court because it's not really losing anything.

It's losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies.

I understand.

Let me just turn your attention to one other thing, because the real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a catch-me-if-you-can kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.

So to my mind, this is the real problem if the court chooses to narrow the scope of the nationwide injunction to some smaller class of cases, because effectively doing so allows the administration to win by losing by simply exploiting this procedural loophole.

If the nationwide injunction isn't available as a remedy in most cases, all the administration has to do is do something truly outlandish.

like put out some crazy executive order, someone challenges it, the administration loses, and then they just sit on it and never appeal it to a higher court.

It never gets to the Supreme Court.

And then the administration just gets to continue enforcing this stupid, outlandish, unlawful policy in other jurisdictions.

And new challenges get raised in these new jurisdictions.

And the administration just sits on those when they lose.

And it just goes on indefinitely with the administration continuing to lose and continuing not to appeal and effectively winning.

Can I just go on a brief side rant here, which is, so I expressed these views that I didn't see the court straight up denying the application requests and instead creating some uncertainty about what exactly has to be done when lower courts can award this, and injecting the possibility of class actions into this.

And I tried to raise the alarm online about how problematic that would be.

And then everybody screamed at me because they kept pointing to headlines like in the New York Times and whatnot that indicated justices were skeptical of the Trump administration's positions or justices are torn.

And it's like, guys, I'm not saying the court is going to blow up all nationwide injunctions in every case.

But if they do something here, short of deciding the merits, straight up denying the applications, that's a real problem.

And it will enable the kind of fuck shit that Melissa just described in other cases as well, given how lawless this administration is and the fact that they don't think they have to actually abide by other decisions.

And so I'm going to blame the media for this.

That's my new position, anyways.

I think those, when you get that kind of feedback on social media, the only possible response response is, bless your heart.

Thank you.

Just say that.

Thank you, Evan.

And then continue.

It's just not even worth engaging.

Okay.

So speaking of people I'd like to blame,

or people who wanted to blame others, I did want to talk about one of my favorite moments during the oral argument, which was Sam Alito's insistence that the real problem here isn't him and it isn't Donald Trump.

It's everybody else.

But you know, sometimes they're wrong.

And all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that

I am right and I can do whatever I want.

Now, on a multi-member appellate court, that is restrained by one's colleagues.

But trial judge,

the trial judge sitting in the trial judge's courtroom is the monarch of

that realm.

And there are situations in which trial judges,

the president does something, it could be President Trump, could be President Biden, could be President Obama.

The trial judge says, This is unlawful, and

I'm going to order,

I'm going to enjoin it, and

I'm convinced I'm right, so I'm not going to stay the injunction.

And then an application is made to the Court of Appeals to stay the injunction.

The Court of Appeals gives it the back of the hand, and then the case comes immediately to us in the context of an emergency application.

And some of us have said, well, we don't think we should do anything in those situations

unless it is indisputably clear that the court below was wrong.

So, what do you say to that practical problem?

I'm just going to say this started out really great, really remarkably self-aware.

It might even have been a self-owned.

I mean, he literally says, quote, all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want.

And I was like, yes, sir, you get it.

You get it.

You're getting it.

And then inevitably, Fox grandpa kicked in and it all took a turn, but so close.

Yeah.

So close.

So

his characterizations of lower court judges.

as being particularly wild because they don't have the benefit of deciding cases with colleagues was so remarkably not self-aware.

It's like, sir, can you point me to a single example where you, Samuel Alito, have ever been restrained because you judge together with colleagues?

Because I'm struggling to come up with one.

Also, none of it made any sense.

Also, these district court orders then go up to multi-member appellate courts.

But he said they all live in the back of the hand, which, by the way, real fucking ironic for the guy who's about to potentially let the administration implement this order without deciding its lawfulness, who might not be interested in supplemental briefing, just the gall.

Totally.

I'll also note there are two justices who also served as district court judges, and they are justices Sotomayor and Jackson, and they seemed to be aware of what district court judges do, how they work, and also the differences between multi-member courts and their colleagues.

Anyway,

Alora, did you happen to be on Truth Social yesterday?

Okay, we know the answer to that question.

I don't know if you want to make assumptions, but I do.

I don't want to make assumptions.

I don't want to make assumptions.

Well, yesterday on Truth Social, the President of the United States truthed about the Supreme Court the day after the argument.

And this is what he had to say: quote, the Supreme Court is being played by the radical left losers who have no support.

The public hates them, and their only hope is the intimidation of the court itself.

We can't let that happen to our country.

And that was the it.

Melissa, I know

how your inner thespian comes out with these dramatic readings.

Can I just say?

Thank you.

Thank you.

Keep truthing.

Keep truthing, sir.

Truth through it.

Laura, I just, I thought this was a remarkably galling two from a man who continues to intimidate courts and an administration that continues to intimidate the courts, but He does sound a little worried, no?

I'm not sure.

It's hard to know what the president is thinking and trying to convey at any given moment.

What I will say is it's ironic to hear him suggesting that the radical left is terrorizing the country when, in fact, the executive branch has inflicted such deep fear and terror in immigrant communities across the country since the election and particularly since January 20th, with not just the birthright citizenship executive order, but so many policies that are designed to harm and devastate immigrant communities.

I think that the president was maybe reading the same headlines that Leah was really worked up over, but responded quite differently.

Although, I don't know, maybe you guys, maybe, maybe I was not truthing through it.

Don't you dare.

No, you weren't truthing through it, but you were annoyed by the headlines because they kind of missed it.

And he was annoyed by the headlines that did suggest that his executive order might be potentially on the rocks.

Although, you know, it's definitely right.

I want to have some humility about this argument because I do think that we, we'd, you know, I think it went better than I was scared it would.

And I think

it went worse than I thought it was going to.

It's so wild.

But

you wouldn't have to.

Don't ever fail me with your.

I predicted this.

Lee would think it was the worst and Kate would be like, better than expected.

Well, partly, but here's what I want to say.

I want to sort of inject a grain of salt into this because a part of the reason I thought it was decent was because Barrett seemed pretty reasonable, and so did Gorsuch.

And at least as to Barret, we have been misled before by the tenor of her questions and oral arguments.

I mean, that was especially true in Trump versus United States, where we really thought, okay, she is, she understands how dangerous it would be to immunize all of this.

And, you know, she writes this completely melee-mouthed concurrence.

Well, the concurrence is fine standing alone, but then she joins in full the majority opinion.

And

she could do the same here.

Yeah.

Hear me out.

She's the mother of children who who are naturalized citizens.

Yep.

Maybe that is meaningful here.

Yeah.

Yeah.

And not just that, but she's also a mother.

So she understands

what it takes to give birth and how many things you need to line up and get in place at the hospital and what it's like in a delivery room.

Yeah.

Yeah.

And I don't mean to say like, oh, I know with all certainty what the court is going to do.

It's just I really did not hear from those two and a half hours an obvious five votes that were obviously just going to say deny, deny, deny.

And a world in which this order partially goes into effect is so devastating that I think people need to be primed to understand

what a Supreme Court decision would mean and could facilitate if it isn't just a straight-up win for the respondents.

So, can I chime in on that point?

So, The executive branch has conceded that if the order is allowed to go into effect effect anywhere in the country, there would be 30 days.

During those 30 days, multiple things would be happening.

Pregnant people would be moving, those who have the resources would be moving to states where they can deliver U.S.

citizen children.

And immigrants' rights groups would be working furiously on developing the class action lawsuits that would be needed to challenge the executive order in the places where it would be going into effect.

But the court would be requiring all of that, like all of this additional stuff that is just so pointless when they could just fix it stop it present it right now so that's the to me the most shocking part of this oral argument was that i didn't hear nine people say like obviously we should just grant cert before judgment and decide this absolutely insane question that isn't really a question because we decided it like back in the 1890s and it's over and

That to me is the scariest part.

And I think if the media doesn't present it in that way, like if this isn't a full-throated endorsement of the 14th Amendment conferring birthright citizenship, then it is a loss.

And the media can't and should not spin it as, well, they saved birthright citizenship by not even touching the question.

And it's a good idea.

It didn't give the administration everything they wanted.

Yeah, that part.

You know, everything they wanted was absolutely unconstitutional.

Like what they wanted was to, you know, take the Constitution and use it to as rolling papers, basically, and just light it up and smoke it or something.

And, you know, that didn't happen.

So that was good, I guess.

Yeah.

Final thoughts, Alora?

You seem shell-shocked, Alora.

Like, welcome to Strict Scrutiny.

No, I'm so happy to be here.

Thank you so much for having me and covering this critical issue for millions of families across the country.

And I guess we will see what happens next.

Alora Mukherjee, thank you so much for taking the time to join us.

It was really great to have you.

Thank you for having me.

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Okay, and in this final segment, we'll quickly cover a little bit of court culture.

So, first, we got another important installment in Hot Cassandra Summer.

It's not even summer yet, and we are already filling our burn book.

So, here the Eighth Circuit reached what friend of the pod, Rick Hassan, called the quote, remarkably wrong conclusion that private plaintiffs cannot use Section 1983 to enforce Section 2 of the Voting Rights Act.

Melissa, I believe you called this.

I believe I did.

The background here is that an important provision of the Voting Rights Act of 1965 is Section 2, which prohibits, quote, the denial or abridgment of the right of any citizen of the United States to vote on account of race or color, end quote.

This provision has been especially important since 2013 when the court in Shelby County v.

Holder gutted the VRA's pre-clearance regime, which required states with a serious history of racial discrimination in voting to first pre-clear any changes to their voting practices or policies with a three-judge panel or the Department of Justice before those changes could go into effect.

The Chief Justice, who wrote for the five to four majority in Shelby County, was very quick to note that although they were dismantling pre-clearance, pre-clearance wasn't the only way that was available to address the problem of suppressive voter laws and practices.

Section 2, the Chief Justice reassured us, remained a viable path for dealing with suppressive voting laws.

And according to some people, that is a problem.

In particular, Justices Thomas and Gorsuch suggested in Bernovich v.

DNC and Allen v.

Milligan to recent voting rights cases that the Voting Rights Act may not even contain a private right of action.

That is, it may not even allow private individuals to sue to enforce the law.

That would leave the law's enforcement to the federal Justice Department.

And right now, we know what that means.

Well, it's not just right now.

I mean, just to note how fringe this idea is, when the VRA was being debated in Congress in the 1960s, it was discussed, this entire idea idea that enforcement priorities could shift from administration to administration, meaning that some administrations, COF, Republican administrations, might be less strenuous in their enforcement of the VRA.

And for that reason, Congress seemed to think that there would be other avenues for enforcing voting rights, like the pre-clearance regime, for example, but also certainly the prospect of private parties perhaps bringing enforcement claims to protect their rights, i.e., a private right of action.

And indeed, the court in multiple voting rights cases has essentially credited the prospect of an implied private enforcement, private right of action method in the VRA.

And also Congress has basically ratified and acquiesced it, right?

Because like after those cases, Congress remaps and amends it, right?

And doesn't eliminate a private right of action.

It's just, it's truly bonkers.

Congress is reauthorizing.

The court is deciding cases.

Everyone is doing it against the backdrop of private enforcement.

And lo and behold, the Eighth Circuit enters the chat to basically say, hold on, everyone has gotten it wrong.

So I should say, though, it's not the Eighth Circuit doing it out of the blue, right?

As Leah previously mentioned, the fringe theory that the VRA only provides for public enforcement is one that Gorsuch floated in his concurring opinion in Bernovich and that Thomas floated in a footnote in his dissenting opinion in Allen v.

Milligan became law in the Eighth Circuit.

In its bid to be the nation's worst circuit court, the Eighth Circuit reached the truly absurd conclusion that despite decades of practice and hundreds of lawsuits brought by private plaintiffs seeking to enforce their rights under the VRA, despite Congress reauthorizing and expanding Section 2 in view of this decades-long history and practice of private enforcement, everyone somehow overlooked the fact that there is no explicit private right of action to enforce Section 2.

And so, therefore, that private right of action does not exist.

You know, it's necessary to enforce the Voting Rights Act, not enforcing enforcing the Voting Rights Act, you know it.

That part.

Deep cut.

So, in the wake of that decision, plaintiffs in the A Circuit sought to enforce the rights guaranteed by the Voting Rights Act by relying on 42 U.S.C.

Section 1983, the general civil rights law, and that provides a cause of action to any person who is deprived of rights secured not only by the Constitution, but also by the laws of the United States, i.e., federal statutes.

And the A Circuit, in an opinion whose reasoning is so tortured, I honestly don't think I can even explain it, held relying on cases I'm not even sure are relevant that despite the fact that the very first sentence of Section 2 references the right of any citizen, which both sounds like language creating rights, sounds like language involving private individuals, sounds like language in other statutes like Title VI and Title IX.

Somehow, the VRA's focus on the unlawful discriminator, not just the individual whose rights are guaranteed, means private plaintiffs can't sue using Section 1983 either.

It makes no sense.

And it means that as a practical matter, plaintiffs can't sue to enforce the VRA in the A Circuit at all.

It's up to Trump DOJ.

And I think we know how that will go.

Although I think some of the South African refugees, that is, quote, refugees, the administration just admitted, are being resettled in South Dakota, which is in the A Circuit.

So maybe they will be moved to enforce the Voting Rights Act there after all.

Are they being resettled in South Dakota so that when the next census rolls around, there will be more people and South Dakota can have more representation in Congress?

Or am I just making up new conspiracy theories?

Don't put it past them.

I wouldn't.

I mean,

the numbers are small, but maybe this is just the first installment.

I mean, like the numbers were already small in South Dakota.

In South Dakota, it's a fair point.

Just a couple of other quick hits before we leave.

We got a very disturbing opinion from a district court in Pennsylvania in one of the cases challenging the Trump administration's invocation of the Alien Enemies Act.

This one was brought by a Venezuelan national known by the initials ASR.

In this case, Trump appointee Stephanie Haynes held that the president was likely to prevail in his arguments that he could rely on the Alien Enemies Act to expel ASR.

But importantly, Judge Haynes also found that the administration was not giving sufficient notice to satisfy the requirements of due process and the Supreme Court's guidance.

So she held that the government must give people like ASR at least 21 days to contest their designations and expulsions.

This, at least, was important, but the Merits determination that the President properly invoke the Alien Enemies Act conflicts with multiple other better reasoned rulings of district courts around the country, finding that the president did not lawfully invoke that 1798 wartime statute.

So disappointing that she came to a different conclusion.

Although I had the thought that the argument in the birthright citizenship case, at least some conflicting authority on the AEA means the Supreme Court is likely to take up the merits question.

Like, it could be that the administration keeps losing on the AEA but never takes it up, just as we were discussing in the context of birthright citizenship.

Okay, so one quick update on North Carolina and wanted to connect North Carolina to national politics.

So, almost seven months after winning her election, Justice Allison Riggs was finally sworn in to continue her service as a justice on the North Carolina Supreme Court.

I would hope that the decisive repudiation of Jefferson Griffin's outrageous efforts to change the election rules after the fact will prove something of a cautionary tale for future unsuccessful candidates who are even thinking about mounting similar challenges.

But I very much worry that, one, shame doesn't operate like it once did.

And two, I think that national leadership is, if anything, encouraging this kind of thing.

So election denialism is alive and well in the federal government at the highest levels, including as recently as this past week, when President Trump had this to say in Qatar in a room full of United States troops.

We won three elections, okay?

And some people want us to do a fourth.

I don't know.

We'll have to think about that.

I mean, at some point, we do need as a podcast to spend some time talking about the 22nd Amendment, which limits presidents to two terms.

Maybe some of them.

I have to say, not today, Satan.

Yeah.

Speaking of Satan, one other note about some truthing on Truth Social.

So, Donald Trump was really having some normal ones.

And on Friday of last week, he posted the following on Truth Social.

Has anyone noticed that since I said, quote, I hate Taylor Swift, end quote, she's no longer, quote, all caps hot?

Yeah.

I had missed that.

Do we have any idea what prompted it?

No.

I think just simmering inner rage and obviously talking shit for the hell of it, et cetera, et cetera.

Like we know who karma favors.

Well, he also talks some shit about Bruce Springsteen, which the boss.

I thought it was weird.

I mean, I know Bruce Springsteen has very progressive politics, but I also thought he was sort of the kind of singer that MAGA types really like.

No, he don't know.

Not only Kid Rock, Melissa.

Only Kid rock.

No.

He's been on stage with too many Democratic politicians.

I think they've decided that he's crossed.

Have they told New Jersey?

Have they told Down the Shore?

Because they love him there.

They sure do.

And correctly.

They love him.

They love Virgonia flags.

Not all people Down the Shore.

They contain multitudes.

They do.

It's true.

All right, y'all.

It's a Friday afternoon that we're taping, which means that obviously in the middle of taping this episode, the Supreme Court issued another opinion.

So this is an opinion in the case known as AARP versus Trump.

This is one of the cases involving immigration and in this case, specifically, the question of Venezuelan migrants and the rushed effort to expel those migrants to El Salvador.

The court holds here that the Trump administration violated the due process rights of those Venezuelan migrants when it sought to expel them to El Salvador.

The court had blocked that expulsion in the middle of the night.

The court did not decide whether the administration can remove migrants under the Alien Enemies Act.

So the substantive question of whether the Alien Enemies Act is applicable in these circumstances is not one the court reached in this opinion, but it did hold that the administration's efforts to remove those migrants violate the migrants' due process rights.

And it instructs the lower courts to go back and decide exactly what sort of deportation procedures would be compliant with the Constitution.

The court also continues to block the deportations of migrants under the Alien Enemies Act as a class.

I think that's really important here.

The injunction that the court imposes here applies to all similarly situated detainees.

I am flagging this because it suggests, and this is something we've raised on the podcast, that there is a majority on the court that is inclined to allow the migrants to litigate their claims in the aggregate as a kind of habeas class action.

We've noted on this podcast before that it may be an open question whether habeas petitions and claims can be processed or adjudicated individually or whether they can be aggregated in the manner of a class action.

Obviously, the latter would be more efficient and would allow the migrants to address these questions through one single litigation vehicle as opposed to having to individually find lawyers and bring individual habeas claims.

Here, the court is allowing through this injunction the migrants to bring their actions in the aggregate.

The court points out here, and I think this is especially important, that because the Trump administration claims that it cannot retrieve migrants once they have been expelled to El Salvador and that Salvadoran mega prison, that they need especially robust due process protections in advance of their expulsion to El Salvador.

So if you can't bring them back, you actually have to give them the right kind of process.

And here's what the court said specifically: quote, the government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador.

That is obviously Kilmar, Abrego, Garcia.

In that situation, the court goes on to say the detainees' interests at stake are accordingly particularly weighty.

Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.

So I think that's also very, very important.

After having made all of those points, the majority remands the case back to the Fifth Circuit to decide what the appropriate deportation procedures should be in a situation like this one.

And the court again reiterates that it is not deciding today the question of the Alien Enemies Act, only this narrower question of whether due process has been violated.

And yes, apparently it has.

We should note here that there were two additional opinions in this case.

Justice Kavanaugh filed a concurrence in which no one joined, in which he simply reiterated his support for the court's conclusion, but went further to note that he believes that the migrants' interests and those of the administrations are actually aligned insofar as they seek an expeditious prompt and final resolution.

He notes: quote, the circumstances call for a prompt and final resolution, which likely can be provided only by this court at this juncture.

I would prefer not to remand to the lower courts, as the majority did here, and further put off this court's final resolution of the critical issues.

Rather, consistent with the executive branch's request for expedition and as the detainees themselves urge, I would grant searchierari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.

End quote.

There is a dissent here filed by Justice Alito.

with whom Justice Thomas joins in that dissent.

And it goes over a lot of things, specifically disagrees with the majority on just about everything.

Of particular note here is Justice Alito with Justice Thomas expressing skepticism that class relief may be obtained in a habeas proceeding.

As Justice Lito points out, quote, we have never so held and it is highly questionable whether it is permitted, end quote.

So those are just some highlights.

We, of course, will continue to drill down on this and dig into this case as more details become available.

This is obviously a developing situation as this gets remanded back.

All right, let's wrap things up with our favorite reads and watches, et cetera, in the last week.

I just have a couple.

One, I started a memoir by author Amanda Hess, who writes for the Times as a contributor.

The title of the memoir is Second Life: Having a Child in the Digital Age.

It's really good.

It's on my list.

Just started.

But yeah, yeah, I think

she's really talented.

Two, I truly love the New York Times piece about Harvard's discovery that it has an original copy of the Magna Carta.

It just somehow, like, it felt like all the timelines, like scholarly institutions, Stephen Miller, due process, like it was all all sort of colliding, and I loved it.

And then the last thing I read is also just kind of an errata I want to issue, like an error that I made on a previous episode, which is I got an email from Dr.

Elizabeth Sartell, who is a member of the theology department at Lewis University, who wrote in to tell me that I kind of overstated the claim in the case Mahmoud versus Taylor about the picture books in the Maryland elementary schools.

So I basically said representations of the Prophet Muhammad are prohibited.

But she kind of gently reminded me there's actually a diversity of jurisprudence and thought on this, that, yeah, it's often viewed as forbidden or disfavored to depict the Prophet Muhammad, but that it's actually allowed and even celebrated in some traditions.

Anyway, good reminder: Islam is not a monolith, and sorry if I suggested otherwise.

So I have three this week.

One is Frederick Backman's My Friends.

New novel just came out.

I've been doing some traveling, and so I always need really great fiction when I'm on planes.

And this hit the spot.

Second is kind of generally a new independent media outlet, AllRise News.

They're on Substack and they are trying to do coverage that focuses on law and civic engagement, which is obviously super important.

They had a great interview with Senator Sheldon Whitehouse about the federal government's unwillingness to protect federal judges in this setting.

So I'd encourage you all to check out AllRise News generally, that interview in particular.

And then, third and finally, so this last week was the week of my book's official release.

And honestly, seeing pictures of people holding it or snickering about some of the arrested development references

were just very appreciated.

I loved seeing them and reading them.

And it made this high stress, high anxiety week for someone who is already very high stress and high anxiety

much more manageable.

Okay, so my faves of the week are one, I got to attend the Schomburg Center for Research on Black Culture, which is a branch of the New York Public Library in New York City, in Harlem.

It celebrated its centennial a couple of weeks ago, and I got to attend, and it was really remarkable.

It is a wonderful center, great for researchers.

If you're in New York City, please check out their terrific exhibits.

If you're not in New York City, you can check out their online exhibits, which are also excellent and consider supporting them.

Libraries are under siege right now, and so is the New York Public Library, which has many branches.

You can specifically donate to the ones of your choice.

I will also note that one of my favorite reads this week was Jennifer Weiner's op-ed, Weight Watchers Got One Thing Very Right, which was in the New York Times last week.

It generally drags diet culture for filth, but it does note that one of the things that the Weight Watchers movement got right was the need for third spaces where people and specifically women can come together and make connections across ideology, across class.

And, you know, she notes this is one of the really interesting things that Weight Watchers got right.

And I just thought that was an interesting way to think about.

the vestiges of diet culture.

And also relates to a book I read last year and recommended, Marisa Meltzer's This is Big, How the Founder of Weight Watchers Changed the World and Me.

And it's a biography of Jean Nidech, who founded the Weight Watchers Empire.

And then finally, I mentioned this last week, but I finished forever the Netflix series by Mara Brock Akhil, and it was absolutely amazing.

If you have not watched it, you must watch it immediately.

It's so, so good.

And it's been renewed for season two, so it's fantastic.

All right, before we go, I wanted to let you know the Crooked Store has a bunch of great new merch, including new designs for our classic friend of the pod T.

This is a merch drop that's part of a big upgrade of the Crooked Store.

The site got a makeover, so did the merch itself.

We are talking about maybe doing some new merch of our own, so keep checking.

And don't worry, this is a good makeover, not like the time that my seven-year-old cut her own bangs.

It was bad, it was a really bad scene.

But this makeover, not like that.

Crooked merch is now made from higher quality, more durable materials with updated modern fits and more sustainable manufacturing practices.

You can check out the new site and grab a new friend of the pod tea at the same old URL.

So makeover, new site, same old URL, crooked.com/slash store.

Strict Scrutiny is a crooked media production hosted and executive-produced by me, Leah Littman, Melissa Marie, and Kate Shaw, produced and edited by Melody Rowell.

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Erwick Essential Mist Diffuser transforms your space, creating your perfect ambiance with a wide range of inviting fragrances that make your guests go.

Airwick Essential Mist Diffuser's easy-to-change refills allow you to choose your perfect fragrance for any occasion, like apple cinnamon medley and pumpkin spice.

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Airwick Essential Mist Diffuser, always inviting.

Exciting news!

Crooked subscription content is now available on Substack.

Yeah, it is.

If you're already a subscriber, don't worry, this won't change anything for you.

But if you love using Substack and prefer accessing things there, you can now find Crooked's content on Substack.

When you subscribe, you'll unlock ad-free episodes of your favorite Crooked shows.

Exclusive content like Polar Coaster with Dan Pfeiffer for expert insights into the polls and media.

Plus, you're supporting progressive, independent media at a time when media is under attack.

We're everywhere you are, so you can subscribe on the platform that works best for you.

Visit crooked.com/slash friends to learn more.