David French

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Sarah Isgur

NA Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And we have four opinions from the Supreme Court. Three of them are six, three along ideological lines. And we're getting in like the temperature is rising for sure. We've got guns, we've got immigration, we've got temporary protected status. It's, it's happening. The term is is happening. The fourth case, Monsanto, we're not going to talk about this is on preemption of federal EPA labeling laws for weed killer and whether state, state juries can, you know, pour Monsanto out for causing cancer. David the only thing super interesting about that case to me was once again we had Kavanaugh vs. Gorsuch in a 7:2 decision, Kavanaugh writing the majority and Gorsuch joining with Justice Jackson in dissent. And while so far the end of this term is just blowing up the thesis of my book entirely, this one opinion I can at least hang on a little bit. Gorsuch versus Kavanaugh and Gorsuch with Jackson. So my two low institutionalist justices saying states let them do what they want to do versus my more high institutionalist justices saying no, we either are not into states rights or we're not into plaintiffs and trial lawyers. Either way, Monsanto wins.

David French

The other thing that's interesting about this is the reasoning of it could be very, is very, very welcomed not just by the pesticide industry, Sarah, but by the vaccine vaccine makers, because some of the laws that this was dealing with state laws of an estate duty to warn, a state duty to warn doctrine in conflict with federal labeling. And in this circumstance, 7, 2 the federal labeling that was not only enough, it was going to preempt the state duty to warn. And this is some of the theories brought under the vaccine in vaccine litigation. It's state sort of they're trying to escape the system created under federal law to compensate for vaccine injuries. And they've used state law and there's going to be less prospect of that now.

Sarah Isgur

So actually a pretty important case economically and for the business docket. And that's the end of everything we're going to say about it because we are about to dive in to OT25. All right, David, I say we start in Hawaii. What do you think?

David French

Oh, I'm with you. I'm with you because I have thoughts. I have lots of thoughts.

Sarah Isgur

All right, so this is Wolford versus Lopez, another six three case coming out of the court. And actually, can we just take a pause real quick because I think there's some questions about why there's all these six three cases. So just to be clear, the cases sort of take as long as they take. The court can take as much time as it wants until the chief justice tells everyone that they need to turn in their majority opinions, which is like June 1st. So if it's a really easy case and it's unanimous, it comes out early. And the harder the case is, the more contentious this is, the more likely it is to come out at the end. I read one thing today, David, over at Balls and Strikes that basically said that the court not telling us what opinions are coming out in advance is like very subtle proof of its political bias. I actually do think the court should give us some heads up on what opinions are coming out. I don't think that would undermine anything about the court, but I don't think them not doing that is somehow like secretly political or conservative or anything else. The piece also didn't really explain why that would be the case, except that it's like Roberts being grimy was the word that used.

David French

Oh, gosh.

Sarah Isgur

But like, basically my argument would be there are things I can dislike about an institution that I wish they would change that don't sort of prove it's evil or anything. It's just like a bad decision.

David French

Yeah. You know, Sarah, we've really reached this strange point, and maybe it's like my age showing, but it, it still Stumps me. It still stumps me. And it is this notion that I can only really like a person or respect an institution if they just always agree with me. And if they don't, because I'm so obviously correct all the time, well, then that has to be evidence of your character flaw or your corruption or your evil, or you name it. And you know, it's funny because people will throw a Supreme Court case I disagree with in my face and say, well, what about Trump v. United States? I disagree with that. What do you want me to say? I still respect these people. I still respect this institution. Show me a human institution that has gotten everything right. I mean, come on, show me if I've gotten everything. I've not gotten everything right.

Sarah Isgur

So this is Jay Willis over at Balls and Strikes, and he makes the argument that they could tell us, you know, a week in advance which opinions are going to come out that week. I agree that they could actually, and I've argued in my book that they should actually release opinions to court hard pass holders in advance under embargo. And I think at 6:00am the morning of, we could just start with an experiment, right at 6am Tell us which opinions are going to come out at 10. So that way we can sort of have all the right people in place. Read up on the, you know, I can go back and read the briefs for the cases that are coming out or go reread the oral argument transcript, for instance, all sorts of options. I think that would be good for the Court, actually, and for media coverage of the Court to be more accurate. But here's the paragraph I kept waiting for, like the argument of why this is particularly bad, because the headline really sells it. The Supreme Court's opinion day ritual helps conceal the Justice's favorite lie. Okay, I'm here for it. Like, I'm ready to read. Treating its calendar like a state secret is one of the subtler methods the Court employs to maintain this illusion. The illusion, by the way, going back to the previous paragraph, the more fundamental reason the Court keeps you in the dark relates to the Justice's strident insistence that their work is not political. The public position of Roberts Co. Is that they do not make policy choices, but instead provide objectively correct answers to discrete legal questions. Okay, so treating the calendar like a state secret is one of the subtler methods the Court employs to maintain this illusion. Roberts knows that every day, every deviation from an announced schedule would remind people of the realities he has spent his career denying, that the Justices are just people and that the law is nothing more than an argument that manages to earn five votes. Part of the Justice's commitment to the myth of the nonpartisan majesty of the law is concealing even tiny details that would shed light on the grimy process of making it. I have no idea why telling us which cases come out helps prevent people from thinking that the court's partisan. Obviously, it hasn't been doing a very good job lately or would somehow reveal its partisan, like, D.C. like, two totally unrelated thoughts to me.

David French

I mean, look, yeah, they are completely unrelated thoughts.

Sarah Isgur

Am I missing it?

David French

They really are. Like, I'm totally for announcing. I would even go, how about the night before?

Sarah Isgur

Great.

David French

I bet you. The night. A night before. I bet you.

Sarah Isgur

You know, or on Mondays, Mondays, they tell us what opinions are coming out for the rest of the week.

David French

Yeah, we. And even add a caveat. We expect, with no guarantees, that the following. Right. Just do that. But then to turn it into the Omnibef, you know, like, there is an Omni beef against the Supreme Court. And at this point, honestly, Sarah, it's so incoherent. It's just hard for me to follow it, because I think it just is that any rule in favor of a position or any ruling or order in favor of a position adopted by the Trump administration is proof of corruption. It seems to be to the. Seems to me to be the way that people are approaching this quote, unquote legitimacy argument. Because if the argument is going to be that they're always just doing what Trump says, you are losing that argument. I mean, you have exhibit A, B, C, D, E, F, G, H, I, J. I mean, Trump is furious at the court frequently. So that can't be the reason why they're corrupt. If on the margins, you want to say something about, like, the Harlan Crow, Clarence Thomas thing, but you're going to not get very far on that when it comes to Trump, because Harley Crow, it's not Trump's guy.

Sarah Isgur

I mean, also, that's a disclosure fight. Nobody has argued he should have recused from any case. Exactly. That's fair enough.

David French

Just disclosure. But what I'm saying is, like, if you're looking at all, if you pull on all the different threads of the beef there, it's small sauce, weak sauce. Small sauce, weak sauce. And then it's. But you ruled this way. And you're like, now we're getting really close to the territory of, well, the court's only legitimate if they rule the way that I want them to rule.

Sarah Isgur

I also saw, and this applied more I think to the immigration cases that we'll talk about next. But I saw members of Congress tweeting that this today was proof that we needed to pack the court and reform the court. And I'm like, these were all statutory cases. The immigration ones, I mean, so, like, change the statute. Member of Congress, like, how weird is it to say what we need to do is pass a law packing the Supreme Court, adding seats to the Supreme Court. Instead of saying they ruled this way on a law, I think they ruled the wrong way. So let's make the wording of the law more clear. Let's just amend that law. What? Why? Why would you add seats to the Supreme Court over a statutory ruling that makes no sense?

David French

Well, and you know, we'll get to these cases, but you're exactly right. If you are angry about the removal of the tps, protected immigrants. And I think a lot of this is being done viciously. It's being done in a cruel way. I'm against it. However, if you want to stop it, don't write a statute that gives the executive branch unreviewable authority to do it. Okay, so. But we're getting ahead of ourselves. We've got other stuff.

Sarah Isgur

Wolford, start at the very beginning. This is the case out of Hawaii. And let me just set it up for you. As I said, it was decided 6. All three of the major cases we're gonna talk about today are Justice Alito special. So majority opinion written by Justice Alito. The question whether Hawaii may prohibit licensed concealed carry permit holders from carrying handguns on private property open to the public unless the property owner gives express permission. So to be clear, like you have a concealed carry permit and you pull up to the Starbucks and the question is whether the default is that you get to walk into the Starbucks unless there's a sign on Starbucks that says no concealed guns allowed on the premises, or whether you don't get to walk into the Starbucks with your concealed gun unless it says concealed carry permit holders very much welcome here explicitly. So this is a default question about private property that is open to the public. Starbucks, the mall, restaurants, the Home Depot, et cetera, et cetera. David, this was decided by the majority to strike down Hawaii's law. So they cannot have a default that does not allow concealed permit holders to carry their weapons into places of basically public accommodation unless it's explicitly written somewhere. There was so much here that was really, really fascinating, and I'm pretty torn coming out of this. So let me just read a bunch of stuff on it. Actually, no David, should we get your high level takes and then we'll dive into it? Because I've got a lot to read from all of these different opinions. So let's just get your first impressions.

David French

Okay, Impression number one, the most clarifying opinion was the Amy Coney Barrett opinion. To me, yes, very clarifying. And it illustrated. So for me, I was kind of going back and forth, and listeners will remember I was kind of going back and forth. This is a Second Amendment case, or is this more of a property case? And if it's a property case, you know, can the state just sort of set a default, you know, if the issue is what is the property default? Because, you know, is this really just a common law sort of setting a default property sort of issue? And Amy Coney Barrett, I thought in her, in her opinion, said it very well when she essentially said, okay, imagine you have a law that was by default, you are banned. You cannot wear a hijab.

Sarah Isgur

Can I read this part?

David French

Yeah, please read it. Yeah, yeah, please.

Sarah Isgur

No one doubts that all property owners in Hawaii could bar the carry of arms on their respective premises if they wanted to. But the Second Amendment does not apply to private parties. It does apply to the states. And when a state enacts a property law that regulates arms bearing conduct, that law implicates the Second Amendment. What if a state made it a crime to wear a religious head garb, say a hijab onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny? On Hawaii and the principle descent's logic, the answer is apparently yes. No one has the right to enter another person's property without permission, and the state has merely adjusted the default to require permission. To be clear, but that is plainly wrong. Because the law regulates religious and expressive conduct, its enactment is state action that triggers First Amendment scrutiny. Under that hijab example. That is hard to argue with, David.

David French

That's really hard to argue with. I mean, really hard. I mean, just extend it to other things. You cannot talk about politics on private property unless without the express written permission of the, you know, and so that really did for me, cut through it all as far as, like, how this is a Second Amendment case, this is extraordinarily burdensome on the right to bear arms.

Sarah Isgur

But that only answers question number one. Right? We have a few questions here. Question number one, is this a Second Amendment case? I agree that Justice Barrett's concurrence checks that box for me.

David French

Yes.

Sarah Isgur

Question number two is, does it violate the Second Amendment? Different question.

David French

Okay, I don't want to be this guy, Sarah. I don't want to be the person that's like, oh, boy, here. I don't know if I want to listen to advisory opinions because David is going to rant about text, history and tradition in a gun case again. If that, if that really triggers you, just maybe hit the, you know, hit that plus 30 second button a few times here. If that doesn't trigger you, I've got something to read. And here is Justice Alito and he's talking about what is sufficiently similar to modern law, like how this has always been. What is the. So if step one of Bruen is, is. Does the Second Amendment, is the Second Amendment implicated at all? Then you get into step two. That is the Second Amendment violated. And how do we do this analysis? That's when you're getting into text, history and tradition. And that's when you're then looking for the historical analog in the right time period to demonstrate sort of what was the original public meaning as understood broadly in society. And one of the main ways that the Court does this is not just by looking at Court decisions, and in fact, often by not looking at court decisions at all because there aren't any, but instead by looking at legislative enactments, which are not interpretations of the Constitution, to be clear, but they're looking at these legislative enactments. And so let me pick up. In order to be sufficiently similar to the modern law being challenged, a putative analog need not be a dead ringer or historical twin, particularly when the modern law addresses a situation that could not have arisen when the Second or fourteenth Amendment was adopted. It is too much to demand such a close match. But the how and why of the historical analog and the modern regulation must be close enough to enable a Court to say, because this historical law was understood to be compatible with a right codified by the Second Amendment, we can infer that the restriction imposed by modern law is likewise consistent with that right. Making this determination is far more disciplined than the interest balancing Judge empowering standard that Heller emphatically rejected. But it's not mechanical. It undeniably necessitates an exercise of judgment.

Sarah Isgur

I'm laughing, David, because when I read that line, I was like, David is going to pull out the hair he doesn't have.

David French

I almost just, I almost just shaved the beard, Sarah, because I had to pull. Some hair had to come out. Do we not see, do we not see here what is happening? So he's saying a interest balancing, Judge empowering standard is not what we want. What we want is the one that requires us to exercise judgment.

Sarah Isgur

Okay, so let's get into this for a second because this is opinion, I think did in fact bother me more than Bruen. You know, you had your whole text, history and tradition rant after Bruin. You continued it in Rahimi, though we both agreed with the outcome in Rahimi. And I've always been like, me, I don't know, I wanna wait, see some more. This opinion did not help me at all in the pro text, history and tradition. Let me tell you why. So also from.

David French

I'm so here for this, Sarah. I'm like gonna hang on every word you're about to say, okay?

Sarah Isgur

It's about the how and the why thing. So, Justice Alito, whether any analog or collection of analogs is relevantly similar to the modern law. This is part three. Determining whether this condition is met requires consideration of how the analog restricted the keeping or bearing of firearms. That is whether it imposed a restriction similar to that imposed by the challenged law. That makes perfect sense to me. Text, history and tradition, to the extent it does that, that's originalism. Again, I'm not like a pure originalist, but actually I think that's a pretty good thing to go look at the how. The problem is for the majority, there's plenty of how statutes out there that restricted state laws that restricted the ability of people to carry weapons onto private property without the express permission of the property owner, that were all about poaching, okay? Just like throughout the country, lots and lots of how analogs, okay? And a court must also consider why the analog restricted the keeping or bearing of arms, that is whether its rationale was similar to that of the new law? What the what now? I have some problems. Number one, isn't that exactly what we say we're not doing with legislative history and purpose analysis and all of that? So like we're saying it's a poaching law, but that's not in the text of the actual restriction. It doesn't say someone intending to poach or someone who might be a poacher can't carry their weapon. It just says a person is not allowed to carry their weapon onto the private property of someone else without the express permission. I thought we were textualists. What is this why business? And how are we determining the why? Even if we all agree on the why? As in like, yes, I know these are anti poaching laws, but how are you determining that except for looking at legislative history and purpose that we don't do in other parts, okay, that's my first beef. Second related beef, David, do we want to do that with the text of the Second Amendment, which has a whole preamble which Justice Scalia in the original Heller decision said, that is the why for why you have the actual operative language. So the text of the Second Amendment, David, a well regulated militia being necessary to the security of a free state, comma, the right of the people to keep and bear arms shall not be infringed. I was actually completely persuaded by Justice Scalia's Heller opinion, which is sort of divided into two parts. And the first whole part of Heller explains why. That prefatory language explains the why of the Second Amendment, but. But it doesn't explain what the Second Amendment actually protects, except according to the majority here in Wolford.

David French

Oh, no.

Sarah Isgur

Now the why is super important. But if the why is super important in these analogs, why isn't the prefatory clause of the Second Amendment, where the why is about militias, why are we now not applying that? Now, again, I actually side with Justice Scalia on this, that the why doesn't matter to the Second Amendment. So I'm disagreeing with this, like the y ness here, not that I'm agreeing with the y ness. And then therefore we have a less Second Amendment. Okay, so, David, This why thing is what changes the whole outcome of the case, in my opinion, if you apply to text, history and tradition, and I think to your point, it really undermines the text, history and tradition part for the very reasons that Justice Alito, to his credit, acknowledges very well in all of his legal writing. Actually, he really does, Steel man, or at least honestly convey the best arguments of the other side in each of these cases, I think. And so it's a lesson on fairly good legal writing. But as he points out, the problem at the time was poaching. And this is in Justice Barrett's concurrence as well. And let me just read a piece of that. The problem with Hawaii's default rule is not that it targets a regulatory problem besides poaching. It is that the rule does not target any particular abuse of firearms at all. Rather than identifying a specific threat to public peace and safety, Hawaii admits that it enacted the rule because many of its citizens oppose the public carry of guns. In other words, Hawaii is responding to the general danger associated with with the presence of firearms, not to any specific heightened risk of their misuse. David, you see what she's done here, right? Like, this is a big change from what Justice Alito is saying. He's saying that like, well, they were doing poaching. We don't have a poaching problem. So your statutes don't apply at all. Justice Barrett's like, whoa, I do see an issue here. Right. Their problem was poaching. They didn't have a, you know, gun violence, mass shooting problem. So of course they didn't legislate against mass shootings. Didn't exist. So her point is. So it's not that these are about. It's not that the why is about poaching. Okay, I'm with you so far, Justice Barrett. And she's like, but they were tailored to address poaching, as in you couldn't bring your gun onto someone's property without their permission, because poaching. And so if this were more tailored to mass shootings, like the types of establishments that have mass shootings, I. You've lost me on the why thing. Majority.

David French

Oh, they lost me on that. The first syllables. Like, what on earth are we doing here? And here's what's fascinating, Sarah, if this was tears of scrutiny, it's an easier case. It's a lot easier case under either a genuine intermediate review or strict scrutiny under a rational basis. You know, of course, it's all done and over. The problem is under text, history, and tradition. I totally disagree with the majority.

Sarah Isgur

Yeah, I think that's right. I think that these are pretty good analogs on the how, and therefore, I don't care about the why. So I think Hawaii's law is upheld under text, history, and traditional. Tell me why you think that this law, you're saying it doesn't pass strict scrutiny.

David French

Doesn't pass strict. It's very easy to say it doesn't pass strict scrutiny. The reason that I would say that it wouldn't pass intermediate scrutiny is the mean. You know, here you have. That means end analysis, which is basically

Sarah Isgur

what Justice Barrett is exactly describing.

David French

Exactly.

Sarah Isgur

Dude, he's describing.

David French

Right. So this is my point about text, history and tradition is intermediate scrutiny. I mean, I feel like this is the ultimate expression of that. Essentially, what you're talking about is a. Obviously, the desire is to prevent gun violence in business establishments, et cetera.

Sarah Isgur

An important interest under intervention.

David French

A very important interest. Absolutely. However, as Justice Alito outlines in considerable detail, the rule would be so difficult to comply with and in a manner consistent with actually exercising the core self defense right that exists in the Second Amendment, that it just doesn't meet the means end test. And I think.

Sarah Isgur

What, you're not tailored enough.

David French

Exactly. Way too big and broad. And so it Would fail strict scrutiny. Easy peasy, two paragraphs. It would fail intermediate scrutiny in 20 pages. But I think it would fail intermediate scrutiny here. I think it passes text, history and tradition.

Sarah Isgur

I think I agree with that. So another analog that Hawaii pointed to was a Louisiana law that was passed in 1865. They go into great detail about the purpose of this law which everyone agrees is part of the black codes. Right.

David French

Period.

Sarah Isgur

Former slaves are now free in the state of Louisiana. They are finding their own food, they are going willy nilly throughout the state, you know, free to travel. And Louisiana white residents want to prevent this from happening. And so they pass a series of laws meant to restrict the labor, freedom of movement and self defense of newly freed slaves. So in 1865, Louisiana statute made it unlawful for quote, for any person or persons to carry firearms on the premises or plantations of any citizen without the consent of the owner or proprietor. Spot on for the Hawaii law. Now I want to read to you Justice Alito's paragraph, Justice Barrett's paragraph and Justice Jackson's response in dissent. Because actually David, this to me gets to another big problem with the way text, history and tradition has evolved is evolving of.

David French

Okay, yep.

Sarah Isgur

Justice Alito, this was adopted by the Louisiana legislature between the end of the Civil War and the beginning of Reconstruction. When the war ended, the legislatures and defeated Confederate states quickly enacted so called black codes that aimed to perpetuate the subjugation of blacks. The statute Hawaii cites was part of Louisiana's black code and it provided a tool for disarming blacks and thus leaving them defenseless against attacks as we have laid out in McDonald. That was the case that applied the Second Amendment to the states. The right to keep and bear arms was crucially important for vulnerable blacks during this period. And this was well understood by the Republicans in Congress who were responsible for drafting, approving and securing the ratification of the 14th Amendment. The Republican Party platforms of 1856 and 1860 called for the protection of the right to keep and bear arms for self defense unless we put history entirely out of our minds. Hawaii's claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms and cannot be taken seriously. So we're doing legislative purpose and we're ignoring some state statutes. Okay, let's just put it in the.

David French

And by the way, the language is for any person or persons to carry firearms.

Sarah Isgur

So it is a race neutral statute whose purpose was to disarm.

David French

To disarm black Americans. Yes.

Sarah Isgur

Okay, but it's not in the statute. Correct.

David French

Great point.

Sarah Isgur

Okay, let's read what Justice Barrett has to say. It is beyond me why Hawaii would claim that these vile laws can justify its present day restriction. We can put aside the question whether they are legitimate evidence of the Second Amendment scope because regardless, they do not help Hawaii. The state seems to think Bruen is a matching game. Southern states enacted broad default rules. Hawaii reasons, so it can do the same today. But. But even if Hawaii is right that the how is analogous, it must also identify an analogous why the Black Codes were enacted subordinate to subordinate newly freed slaves. Hawaii obviously does not contend that its law promotes an analogous interest. So its law and the default rule in the Black Codes are not relevantly similar. Most would take that as a compliment. But David, now the why is just like whatever. The why here is a big, big problem. We already said the how was a problem because of the level of generality that we saw in Rahimi. For instance, is it just dangerous persons, or does it need to be someone accused of a violent crime who hasn't yet been convicted of a violent crime can be disarmed? Like that's a level of analysis on the how are you at 30,000ft, 15,000ft, 5,000ft? This whole why business, though, there's all sorts of why reasons, and I think it's a huge problem. But let me read you Justice Jackson, and then I'm gonna just let you off the leash.

David French

I'm straining, I'm straining.

Sarah Isgur

By the way, Justice Kagan is the principal dissent author here. Justice Jackson writes a separate solo dissent. As I see it, there are two potential reasons to use or exclude the Black Codes in Bruins, history and tradition. First, it could be that the Black Codes regulated guns consistent with the Second Amendment, but states chose to exercise their regulatory authority in a discriminatory fash. Under this framing, those gun regulations are not examples of an unconstitutional abridgment of the right to bear arms, but rather exemplify a violation of a different constitutional amendment, the 14th amendment. Let's, I mean, take just a second on that, David. She's got them there, right? If the problem is just that this applies, you know, the why is to disarm black people, then that's not a Second Amendment problem, that's an equal protection problem, in which case the law itself is actually fine and very analogous.

David French

It's just if it had been applied to white and black citizens alike, which it of course was not, that was the. Yeah, right.

Sarah Isgur

So is it a Second Amendment problem or a 14th Amendment problem? Okay. Alternatively, she writes, it could be that states did not have the constitutional authority under the Second Amendment to enact such regulations, but did so anyway for discriminatory reasons. Under that framing, not only did the states violate the Constitution by acting on the basis of race, they also violated the right to bear arms. Only the second set of circumstances justifies removing these laws and the experience of those targeted from the body of evidence that determines the historical reach of the Second Amendment under Bruen. If the point of taking the Black codes out of the equation is that they are not a valid part of our nation's historical tradition, then the court must provide guidance, guidelines on how to determine the type of history that can be considered to ensure that this inquiry does not become a free pass to quicken validation. Right. So under number one, it's not a violation of the Second Amendment. It's only the 14th Amendment. So we can use the Black codes as an analog. Under number two, it's a violation of the 14th Amendment and the Second Amendment, and therefore we can't use it at all, even though it is a state law passed after the 14th amendment and we're using other state laws passed after the 14th amendment to say that's what they thought the second amendment meant. So why are we not using Louisiana's? Because we think it violated the Second Amendment. So what good is this history test then if. Then all we're doing is deciding whether those state laws were or were not consistent with the Second Amendment. It's circulating.

David French

Exactly. Exactly. So essentially what has happened is that if the Supreme Court is going back to historical laws and adjudicating which of those historical laws were constitutional and not constitutional, and then deciding the constitutional and constitutionality of the present law based on their constitutional understanding of their constitutional adjudication of the past law, it's turtles all the way down. What have we done? It's just turtles all the way down. Same analysis would apply if they did. Text, history and tradition for the First Amendment. What you gonna do with Alien and Sedition act, guys? Are you gonna invalidate the Alien and Sedition Acts based on constitutional principles and then say the. But the cases we agree that the situations we agree with or the enactments we agree with, those are the ones that. I guess this is the judgment here that Justice Alito is talking about. And so at that point, I honestly feel like Justice Jackson just nailed the issue to the wall right there in this case. Because if the issue is we all agree the Black Codes were heinous. Heinous. Some of them were heinous because they targeted black people Specifically, some of them were heinous because the enforcement let off white people and targeted black people. That's being heinous for a different reason. Reason. Right. And she, she nailed that. So, for example, the analog would be if Hawaii enacted this law and then said own and, and only enforced it against white Hawaiians and said, and the native Hawaiians got to walk around. No problem is never enforced against, say, a native Hawaiian, only forced against a white Hawaiian, whatever. Or flip it around. Either way, that would be analogous to what we're talking about with the black codes here. But what the majority did is it basically used the term black codes to basically just say bad, stay away. And then I, but I read the actual coded issue and it's race neutral. Now, here's where we're going to jump ahead a little bit to tps. So in tps, the majority looked at an avalanche of racist rhetoric from Trump himself regarding the revocation of protected status from these refugees. And they're not technically refugees around these, you know, the immigrants under TPS status. An avalanche of racist rhetoric. But there was also a race neutral policy in effect, where they had no one, nobody whose renewal was up for whose TPS status has been up for renewal has received renewal. So they discounted all of the racist rhetoric because of the race. The policy was race neutral on its face. And here, here they're using the racist application of the black coats to discard something that was race neutral on its face. They're not precisely, and they're not exactly analogous, but they're rhyming, Sarah, and they're rhyming in a very different way. It's very confusing, shall we say?

Sarah Isgur

We're going to move to metering after this break, but I think I'd be remiss if I didn't read this paragraph from Jackson's dissent. Confronting the origins of these laws is certainly uncomfortable. The black codes were ugly and racist and deplorable. Even now, long after their abolishment and the end of the Jim Crow era, black Americans are still saddled with the ramifications of centuries of legally authorized exclusion, notwithstanding the much heralded arrival of, quote, colorblindness, end quote. See Students for Fair Admissions vs. Harvard Jackson J. Dissenting. Just a little nugget she put into that dissent that I think you'll see again, David, when we get back. Let's start with metering because it is the other merits decision before we get to temporary protected status. And we'll see you in just a sec.

David French

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BrooklynBetting.com promo code advisory Life insurance is something many of us tend to avoid thinking about, but we've all personally seen why it matters. Someone close to you passes away suddenly, leaving behind a spouse and children, their lives changed overnight and the financial burden added another layer to an already heartbreaking loss. It can show how quickly life can take an unexpected turn and why it's so important to have a safety net in place. Ethos simplifies getting life insurance with a fully online process. Get a quote quickly, apply in minutes, and potentially be covered the same day, all without a medical exam. With just a few health questions online, you can access coverage up to $3 million with plans starting at around $30 a month. Take 10 minutes to get covered today with life insurance through Ethos. Get your free quote@ethos.com ao that's e t h o s.com ao Application times may vary. Rates may apply. All right, David, time for metering at the southern border. We're back with justice alito and another 6:3 majority decision. I'll read you the facts here. In the spring of 2016, U.S. customs and Border Protection began to experience a surge of aliens seeking admission at ports of entry along the US Mexico border. The number of aliens seeking to enter sometimes far exceeded the number CBP could properly process. Long delays slowed the inspection process, and in the meantime, CBP sometimes ran short of chairs, meals, and beds. The resulting conditions were often unsafe for aliens, and they rendered border facilities unsecure. In November 2016, the Department of Homeland Security responded by adopting a policy of metering the number of arriving aliens who CBP would inspect each day and allowed to apply for asylum. To enforce the policy, officials stood on the US Side of the border and prevented entry into the United States by more aliens than the port could adequately process. The metering policy continued through the change in presidential administrations. So, David, the language here is arrives in the United States. Someone who arrives in the United States shall be processed for asylum. But if a CBP officer stops you on the Mexico side of the border has does that person have they are, they arrives in the tense here kind of matter. So I want to keep using arrives in and not use the past tense, even though my sentences won't make sense in some contexts. Okay, so Justice Alito says Congress could have required immigration officers to inspect any alien who arrives at or reaches the US Border, and it could have used similar language in specifying which aliens may apply for asylum. It did something like that in an earlier provision allowing an alien physically present in the United States or add a land border or port of entry to a to apply for asylum. The running back does not arrive in the end zone and six points do not go up on the scoreboard when he is tackled at the one yard line by the defense. The guest does not arrive in the house when the homeowner locks the door right before the guest tries to open it. The army does not arrive in the city when the city's defenders repel the attack outside city limits. And the letter does not arrive in the mailbox when a dog assaults the carrier a step away from the mailbox. A person arrives in a destination only when he enters it. And that conclusion does not change because someone or something blocks entry. A person arrives in the United States then only when he enters it. David, you know, we said this at the beginning, but this is one of those cases where I actually think this is a closer call than it first appeared. We talked about this at oral argument, but at the end of the day, I think the majority just has a much stronger textualist argument based on what Justice Alito just said. They could have said arrives at a port of entry, but they didn't they said arrives in the United States? Eh, stuck with the language we have. You go to arm, you go to war with the army you have. Congress can change this at any point. This is just a congressional state statute. So all of the hand wringing right now over the Supreme Court's decision, I could not be more unmoved by. Because you're lobbying, you're threatening the wrong branch of government. Be mad at Congress for writing arrives in instead of arrives at a port of entry. Really easy fix if there's a majority who wants to change it to arrives at a port of entry.

David French

Could not have said it better myself. If you're mad about this decision, you're mad at the wrong people. Let me just put it this way. If your argument is that I should be able to have my application processed when I'm outside the country and the language of the statute says arrives in, the odds are stacked against you guys. I mean, having been a lawyer before, I was a podcaster for many, many, many years, I would take one look at that statute, and I would say to my client, okay, I can make arguments that will pass Rule 11. I can make arguments that, you know, there's other language of the statute, that if you read the other language of the statute and you harmonize it and you squint a little bit, maybe in can somehow mean at. But 99 times out of a hundred, in a court of law, the word in means in. And if you wonder about this, do you say, when your car parks on the sidewalk right in front of your friend's house, do you say, I've arrived at their house, or do you say, I'm in their house? You say, I'm at their house. You don't say, I'm in their house. And so when do you say you're in their house? When you're in their house, I mean, you know, so this is one of those situations. I'm very much reminded of Trump v. Hawaii, which is the travel ban case, where the statute very clearly said that the President just has the authority to ban an alien or any class of aliens. And it's just right there. And now a president does it in a way that you really, really don't like. Anybody could have told you that was a possibility.

Sarah Isgur

And that's a great reason to lobby Congress.

David French

Yes. And we're gonna get into this with TPS as well. Now, tps, I think, is more complicated.

Sarah Isgur

I think it is, too. The thing about this decision that I hate are the consequences of the decision laid out quite Eloquently by Justice Sotomayor. There's all sorts of reasons that Congress should change this language, most of which is that it encourages illegal immigration. Yes, right. Because people are now being forced to wait months outside of the port of entry and order to get their, you know, appointment to arrive in the United States and apply for asylum. And it's very dangerous. There's all sorts of crime. And so some people are deciding to walk 30 miles in the desert. That's a bad idea and very deadly. But some people are deciding to just try to cross the Rio Grande, including with small children. And it is tragic when it's tragic. But also a lot of people are just succeeding at crossing the Rio Grande and getting into the country and then they can apply for asylum because they're in the United States. So as long as you find your way into the country, maybe you take an airplane in, maybe you cross the Rio Grande, whatever you can figure out to do, then you're scot free. It's only if you actually follow the rules and wait at the port of entry that you're not allowed to apply for asylum again. That's what the statute says. This is Congress's mess to fix. But these are dumb consequences. Whether you are pro, you know, more immigration or anti, more immigration. No matter which side of this debate you're on, you should be lobbying Congress to change this language because the incentives are not great.

David French

I agree with that a hundred percent. This is very much a, this is, this is what a court should do, is don't save Congress from its own mistakes. You know, read the statute, you know, interpret the statute as written and then make Congress write a good statute. And look, you know, if somebody's saying, well, I mean Congress is broken, we can never get that.

Sarah Isgur

Well, we can't change the court because a different branch broke itself.

David French

Exactly.

Sarah Isgur

You don't want the court to break.

David French

We can't break one branch to.

Sarah Isgur

Yeah, I do want to read a paragraph from Justice Thomas's concurrence. This is going to be a theme in both cases, by the way. Congress for its part, has no enumerated power to require the President to bring certain aliens into the country. The Constitution grants Congress the power to establish a uniform rule of naturalization. But the class members in this case are not naturalized or even on the path to naturalization. Any statute that forced the President to allow aliens to cross the border against his will would appear to exceed Congress's enumerated powers and a court could not enforce it against the President. So just to Put that in plain language. Here's one vote for just saying that large swaths of the Immigration and Naturalization act are unconstitutional. I mean this goes back to the spending clause, commerce clause. Justice Thomas going full YOLO here. And David, I don't agree with this. I actually think that the, the enumerated power to establish a uniform rule of naturalization very much includes, you know, setting asylum rules for who can come in the country. And you can restrict the President. On the other hand, you gotta respect Justice Alito's through line, right? The guy is consistent. He is consistently consistent. Justice Thomas. And you know, you mentioned the disclosure stuff. He can disclose anything you want him to disclose. It ain't gonna change this.

David French

He is the cheese stands alone, man. Yeah, that's that. When we've talked about the disclosure stuff, I'm just like, okay, which aspect of Justice Thomas's jurisprudence has been influenced?

Sarah Isgur

The part where he just said the whole INA is unconstitutional. And so by the way, that would mean that, you know, a very open borders president also could not be restricted by Congress. Just so we're clear on how this would all work. But yeah, David, we get back, let's get to tps cuz then we can wrap all of this together again. This is temporary protected status. It was on the emergency docket, the last case argued in the term, and it's Justice Alito and it's also 6:3. But you do have a Justice Thomas concurrence saying that Bowling v. Sharp, the federal analog to Brown versus Board of Education, was wrongly decided. Let's do this.

David French

Oh, here we go.

Sarah Isgur

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David French

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Sarah Isgur

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David French

I'm rocking with it.

Sarah Isgur

Okay, try it for yourself. Starbucks refreshers concentrates are coming home. Find them in the coffee aisle and make it yours. Okay, finally, let's move to temporary protected status. We don't need to go through the whole history of how we got to temporary protected status, but Congress basically passes a statute that allows presidents enormous discretion to designate countries that are having some sort of emergency, be it war or natural disaster, and that the people who are here from that country already do not need to be sent back. The language says, quote, judicial review of any determination of the Secretary of Homeland Security with respect to the designation or termination or extension of a designation of a foreign state. So that's the judicial review bar. So David, the question is there's three possibilities of what this judicial bar applies to. Judges can't review substantive claims, but they can review claims on procedural errors. Determination in the judicial review bar applies only to determinations about conditions in the country, but everything else can be reviewed by judges, or it's just that the final determination, the actual termination can't be reviewed, but all of the process leading up to it can be reviewed. I mean, again, David, this is a little bit hard because on the one hand the language is pretty clear. They can't review, it is barred judicial review of any determination of the Secretary with respect to the designation or termination or extension of a designation of a foreign state. But you had this like, you know, parade of extreme horribles. So for instance, a rogue Secretary in one fell swoop could issue a 50 year TPS designation contrary to the 18 month statutory cap, or a Secretary could terminate a TPS designation based on a coin flip. The government responds to each of these respondents far fetched hypotheticals and concludes that some, but not all could in fact be redressed by the courts. But whether or not that assessment is correct, the fact remains that if a Secretary engaged in the sort of conduct that respondents imagine, Congress would have ample means to stop that abuse, including for example, through the annual appropriations process. Sometimes Congress decides that the political process is the proper forum for remedying improper conduct. We have made this point over and over again, David, that just because someone violates the law, just because someone violates the Constitution even, doesn't mean that the courts have the ability to stop them. And I think that's really hard for people to understand because it's like, but the courts are the last stop. No, that's not true. The political process is the last stop. The courts are a potential stop, but Congress can limit what courts can hear. In fact, it's one of the things that the left is talking about for court reform is limiting the types of cases that the Supreme Court can actually rule on. But here, when Congress actually did that, they're like, yeah, but I don't like this judicial bar, David. I think there's decent arguments for all of the different versions of this. But at the end of the day, I think it's important for everyone to acknowledge that Congress can simply remove things from judicial review. And if they did that here, it doesn't mean that the courts can step in when it's quote, really bad, that in fact it's then Congress saying we are not leaving this to the courts to police the various lines that we've created, including statutory caps, review process. We're reserving that to ourselves to be worked out in the political process.

David French

Yeah. This case, I mean, both TPS and this case, to me, the statutory language was very, very clear. Here, again, you're, you know, putting on my lawyer hat, you say, hey, I want to challenge this determination and you open the statute not rev. Reviewable. Well, crap. I can surp. I can. I can get past Rule 11 on some arguments, but this is going to be really, really, really hard. And so again, if you're angry at this, you know where to point your fire. I did not find. And I very much remember talking about this, and we said, I think the only way they win is if we get to Justice Roberts is just done with this crap stage. Sort of the way he amped up rational basis review in Trump 1.0. Would he do something that sort of succinctly.

Sarah Isgur

The DACA case, the census case, where it was like, you better cross your T's and dot your I's, the power to do this. But you didn't follow the process. But there wasn't a judicial review ban in those cases for those statutes.

David French

Exactly, exactly. So I knew the statutory interpretation here aspect was. Nope. The part was interesting to me was the constitutional question.

Sarah Isgur

Right. So there's two problems here. One is, did they follow all the process? Is that reviewable? Blah, blah, blah. The second problem is, is this a violation of the Equal Protection Clause? But you have a problem here, right? Because the Equal Protection Clause is in the 14th amendment and it applies to the states. The Equal Protection Clause has never applied to the federal government in the text of the Constitution. The way that it applies to the federal government is through the Fifth Amendment's Due Process Clause. It's like reverse incorporation. And that is in Bowling v. Sharp. And I should just read you Justice Thomas's writing here because it's like, so much a part of this whole conversation, David. And it's pretty interesting because we don't talk about it a lot because the Fifth Amendment has no Equal Protection clause. This Court was wrong to read equal protection into it. In Bowling v. Sharp, 1954. This is the sister case to Brown vs. Board of Education. Brown vs. Board of Education applies to Topeka, Kansas. Right. But Bowling v. Sharp applies to public schools in the District of Columbia, which is the federal government. And you have Justice Warren doing a whole little, like, dance. If I can just read you a section of Justice Warren's opinion here. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the 14th Amendment, which applies only to the states. But the concepts of Equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The equal protection of the laws is a more explicit safeguard of prohibited unfairness than due process of law, and therefore, we do not imply that the two are always interchangeable phrases. But as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. And now back to Justice Thomas. If equal protection principles applied to immigration decisions, much of even our current immigration law would conflict with with this Court's modern equal protection doctrine. This Court has interpreted the equal protection clause to bar discrimination based on country of origin, but our immigration laws have distinguished among aliens based on their national origin from the beginning. Today, applicants for immigration are treated differently based on their nationality as a matter of course. And respondents themselves seek a protection from deportation for people from Haiti, but not the neighboring Dominican Republic. If they are correct that the Court should apply equal protection precedents to immigration decisions, and then the program that they benefit from may ironically be unconstitutional. Once again, Justice Thomas Violo. He's bowling v. Sharp. Let's overturn it. Yeah. But David, he's got an interesting point on the text of the Constitution, as Justice Thomas often does, somewhat annoyingly.

David French

No, he does have an interesting point on the text of the Constitution. But before we dive more into that point, I want to circle back to the evidence of the case.

Sarah Isgur

Yep.

David French

And. And because let, let's close. This is going to close the loop on the, the conversation we just had about the Black Codes. So the evidence in the case here is that two things at once that the. Or a few things at once. Number one, the language which Justice Kagan is does this very interesting thing in the dissent. In her dissent, she says, I'm going to quote what the language is because the majority would not. And I thought that was an interesting observation that that, that in the majority, Justice Alito talks about that this would be language that would have been scandalous several years ago. It's still scandalous, but it would have been scandalous several years ago. But he doesn't.

Sarah Isgur

I think he meant impeachable in fairness, in the context. I think he meant it would be disqualifying for someone to have said these things. Impeachable for someone to have said these things. Because he then has several paragraphs where he talks about the dignity of Haitian immigrants working in the country and et cetera, et cetera. But. Yes. Yeah.

David French

And so Justice Kagan quotes the president and some of the quotes, I had forgotten how, how bad they were. And in those quotes you know, it's very blatant. It's poisoning the blood. It's, you know, the, the whole countries, it's the eating the pets. It's all of this stuff. I mean, it's just gross, gross stuff. So there's a lot of very blatant on the record racism here. Just very blatant on the record. But there's also evidence that the Trump administration just hasn't renewed TPS status for anybody as it comes up on the schedule for renewal.

Sarah Isgur

So they have terminated every TPS designation that has come up for renewal, 13 in all. And all of those countries, according to the TPS side, are non white. Meaning. So they don't have, like, there's not a great example because Ukraine is the only country they consider to be a white country and they have not come up for TPS renewal yet.

David French

Right. So all the countries have been removed and they're all majority non white. That, that's. And then the only country that is

Sarah Isgur

with a definition of non white. That's basically everywhere except Europe.

David French

Right, right. And a, a definition or a country that's coming up, Ukraine. There hasn't been a determination yet. And then this hasn't been discussed yet. But I also think, because even though it's not specifically in the TPS world, I do think it's actually relevant. If you look at the refugee system that the Trump administration has set up, I'm not going to say every last one of the refugees that is being admitted to the country is white, but about 99% of refugees admitted since the Trump administration has been in office, as of the study that I looked at, were. Weren't just white, they were white South Africans.

Sarah Isgur

Yeah, I'm laughing because that's the, the tab that I had open reading right before we got on. So it's so funny that you bring that up.

David French

That is hilarious. But, yeah, yeah, it's hive mind. Yeah. And so here you have a. A situation in which if you don't think this is racist, it's kind of like, you know, Big Brother asking you to avoid the evidence of your eyes and ears. And so how do we harmonize that with. We're automatically dismissing the black codes because everyone knew that that was racist. And even though the language on the black codes on that particular law in Louisiana was facially and racially neutral, everyone knew this was racist. Don't bring it up. You can't use it. Boom. Here, this one is. Well, we do have a facially neutral, so far, application of their new TPS policy, but also we have an avalanche of information that for some of these folks, there's a lot of racism. And so how are we harmonizing these two things? Sarah, how are we harmonizing these two things?

Sarah Isgur

It's a good question. I. I think the paragraph where Justice Kagan lays out all that has been said very much speaks for itself. I think the question is, what is the proper role of the courts in dealing with this? And so I go back to the bar that your beef is with Congress for creating the such an enormous bar to judicial review. Now, the courts have said in the past, for instance, that when Congress has tried to shield its suspension of habeas corpus from judicial review in those post 911 cases, the court was like, yeah, you can't violate the Constitution with a bar from judicial review. So I don't think that's an easy answer that, like, oh, it's judicially barred, so we don't look at equal protection violations.

David French

Yeah, I don't think that's.

Sarah Isgur

Yeah, you stack on top of it the fact that there is no equal protection clause for the federal government, and then you ask, is this a due process violation under a judicial bar that can't be resolved by the political process? It's a closer call to me, David. I think I, in the end, side with the majority of the six justices in this case that Congress intended this to be left to the president and that this is a very good example of something that was supposed to be handled in the political process because the program itself was so discretionary. And all of these other countries, as Justice Thomas said, we say the equal protection clause applies to national origin. Any country that's going to be eligible for TPS is very likely to be non European for the obvious reason. So I think it's a mess. I don't think your argument's crazy. But in the end, the statute and the atmospherics and the political process win out for me. And I think the majority got it right.

David French

And I will just say the Thomas equal protection. Is there an equal protection clause that applies to the federal government? Question is very interesting to me. Like, I'm sitting here without a fully formed, even paragraph of thoughts of rebuttal. However, I will say that there are circumstances I would be very interested in a due process analysis that says, is this actual due process if the outcome is foreordained as a result of racism? And so that would be.

Sarah Isgur

But you have Justice Alito making the, I think, quite persuasive argument that it's not foreordained because of racism. He doesn't say this part. It's foreordained. Because he hates immigrants. Right. He hates poor immigrants coming into the country. And, like, that's crappy. And you should vote against someone who hates poor immigrants because they're poor.

David French

He loves the. He loves him some Boers.

Sarah Isgur

He doesn't think they're poor.

David French

I wonder why he doesn't think they're poor.

Sarah Isgur

Indeed. I'm not gonna defend this stuff, David. Not a million years.

David French

Yeah, yeah, yeah. No, no, I know.

Sarah Isgur

If you have this, like, he's ended TPS for everything. His language tends to just be against immigrants. It looks much more like Trump v. Hawaii, where it's like, no, he just wants to stop immigrants. And yeah, he said crazy stuff about the travel ban. He even called that a Muslim ban at one point. But in the end, like, he picked a bunch of countries that do tend to harbor terrorists, and he doesn't like immigrants. That's not an equal protection violation.

David French

Yeah, I mean, I don't think this is an easy call in either direction on the equal protection issue because of the fact that. Exactly what you said, Sarah. And it will be interesting to see what comes up with the Ukrainian. You know, if I'm Ukrainian on TPS status, I guarantee you I'm very nervous right now because you know who he hates as well? He hates. He doesn't just hate immigrants. He also doesn't really love Ukraine so much. He blames the nation of Ukraine for his. For the. For the Russia scandal in his first term. Believe it or not, he actually does. So who knows? He may terminate TPS status for Ukrainians as well. We'll see. And so I'm with you. I really. I'm with you on the. The argument that this is hard. This is complicated. What I'm pointing out is there just seems to me to be a contradiction here between the analysis of the black codes by the majority in the Trump Hawaii and the analysis of a very similar factual situation in the TPS case. And I would read the heck out of a debate on the equal protection clause and the Fifth Amendment. I want more. I want more on that point. Just earlier, just for a clarification, I said Boer, sort of thinking that's a synonym for Africaner, and that might not be right. So I think to be technically correct, it's not Boers from the Boer War, for example. It's Afrikaners or people who speak Afrikaans, for example. And so I just want to be clear. I'll let the comment section sort out the Venn diagram between Afrikaners and Boers.

Sarah Isgur

By the way, great book to read. Hero of the Empire by Candice Millard, who wrote Destiny of the Republic that got turned into Death by Lightning. But this book of hers is about a young Winston Churchill making his way through the Boer Wars.

David French

David, it's a great book. It's a great book.

Sarah Isgur

It's a great book. And Winston Churchill just seems like such a little piss aunt. I don't have another word for it. Well, David, the Supreme Court said that they will not release opinions on Friday. They will release opinions on Monday. But they tell us the day before the last day of the term when it's going to be the last day of the term. So, as in, we know that Monday is also not the last day of the term. So we will record an episode on Monday after those decisions come out, and we will record an episode on the next day that the decisions come out, be it Tuesday or Wednesday. Our calendars are full of tentative advisory opinions recording times at this point in life. But, David, the good news is next week, at some point we go back to our regular recording schedule because it will end July or on July 1. The justices are counting on it and so are we. We'll see you next time on advisory opinions.