Advisory Opinions - Deer Jacking

Episode Date: October 19, 2020

Still shocked by the grand polling meltdown of 2016, many Americans on both sides of the aisle are convinced that Biden’s double digit national polling lead is inaccurate and that Trump will somehow win the election in a landslide. This theory has three main hypotheses: 1) Trump is such a uniquely divisive candidate that his supporters lie to pollsters and say they plan to vote for Biden, 2) the likely electorate problem, and 3) Republicans are less likely to talk to pollsters in the first place. Sarah and David break down these theories and explain why they’re overblown given the data we have at this point in the race. Stay tuned for a legal breakdown of the Supreme Court’s latest cert grants related to deer jacking, the hot pursuit doctrine, asylum seekers, and the southern border wall. Show Notes: -Join The Dispatch for a post-election gathering featuring Congressional leadership, top policy and political experts Nov. 9-10: sign up here! -Nate Cohn for the New York Times and “Are Silent Trump Voters Real, or Just a Myth?” by Jonah Goldberg in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You love Taco Bell after a night out, but the new Cantina Chicken menu from Taco Bell hits different during the day. With slow-roasted chicken and fresh veggies,

it's something late-night you and daytime you can agree on. Hit up your local Taco Bell restaurant or TacoBell.ca today and try our new cantina chicken menu. Taco Bell, not just late-night. Offer available at participating Taco Bell locations or TacoBell.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger.

And we've got polls to talk about, a presidential race to talk about, and we've got three Supreme Court cases that have just been accepted for review that are each interesting in their own way. You're going to enjoy this. And Sarah, you have a dissent from denial of certiorari that's actually worth mentioning? Yeah. Yeah. A little nugget. Okay. All right. So we got a lot, but before we get into it, I'm excited to share with you guys, we have our first dispatch event, not a dispatch live, but an actual event. When we started the dispatch, we were going to be having a lot of these events, hopefully around the country, but guess what? A

pandemic happened, but we're not going to let that stop us. We have perfected the art of Zooming, and we're going to have a two-day event online called whatsnextevent.com. event online called whatsnextevent.com. What's next event.com. No apostrophe, just W-H-A-T-S next event.com. And so it's November 9th and 10th. We're going to be talking about what's next after this election. There's going to be afternoon sessions from roughly 1 to 5.30 p.m. Eastern each day. And then we're going to return at 8 o'clock for an evening session and a wrap-up of the day's proceedings with your beloved dispatch team.

There's a two-day event. It's a two-day event, the 9th and 10th. The tickets are $100, and they include a complimentary subscription to the dispatch. We've got Liz Cheney joining us, Ben Sasse joining us, Senator Tim Scott joining us, and we'll be announcing

more people and more panel discussions in the coming weeks around the future of conservatism governing under a Trump or Biden administration, a few issues from the states, foreign policy issues, and then, of course, we're going to do a deep dive into the election results. of course, we're going to do a deep dive into the election results. And speaking deep dives into pre-election, Sarah, I've got a question for you. What is the significance of the number 10.7? Oh, I know the answer to this one. So last week on Monday, we were talking about the state of the race and polling.

And last week, it looked like Biden was opening a lead, was opening a double-digit lead. And so on the October 12th number was Biden at 10.4, which was two points higher than the week before. So Sarah said, well, I don't know if this is real. And none of this newf is real. And she said, let's talk about it on Monday if it's still double digits. So it's Monday and it's not 10.4 anymore. It's 10.7. So does this mean, Sarah, now that we've had 10 points,

we crossed the double-digit marker 10 days ago on October 9th. So I guess this means this is real? Or is it real? No, that feels pretty real. Let me tell you why i've hesitated last week because polls are a lagging indicator right uh of event first it's lagging on the events that it's trying to pull that could shift the race and then it's lagging on the voters sort of marinating on those events so it's sort of a double lag, but we are now far enough out from the president's debate performance, COVID diagnosis, which I think could potentially be

the two main drivers to say, you know, that lag should be done at has two polls from the 14th through 18th and then three more polls from the 5th through 18th. So all released basically today. And so it's not like there aren't polls coming out or our average is now too weighted for old polls or something like that. Like, nope. And those polls, 12, 13, 12, 5, and 6. So, you know, that's a thing. But I hear from a lot of folks when I talk to real people, unlike us, we are not real. We're not real people.

When I talk to real people on both sides, they think the polling is wrong, which is fascinating to me. And there's three main buckets in which the polls could be wrong. And I was thinking maybe I would walk through those three buckets and what the data is. What the data are. Yeah. When you said what the data is, that sound you heard was the hundreds of PhD listeners screaming out in agony at once. Yes. Sorry. Sorry. Okay. First, the shy Trump voter thing. We've talked about this a little bit and Jonah has written about it. So I'll just be quick about this one. But this is the idea that Trump is such a uniquely divisive candidate this time around that there are people lying to pollsters and saying they support Biden when in fact they're

going to vote for Trump. For that to be true, what you'd expect to see in the polls are an unusually high number of registered Republicans saying that they're going to vote for Biden. But that's not at all what you see in these polls. In fact, Trump's strength with Republicans is high and consistent. So nothing in the data suggests shy Trump theory. Right. Two, the likely electorate. This is always a problem for pollsters. And I can't even really explain to you why this isn't a bigger problem than it is. Because the likely electorate for midterms, for instance, should be really hard to pinpoint. The likely electorate for this election, in some ways, should be actually much easier because of the 157 million registered voters, 138 million voted last time.

We're expecting that number to go up a little. But basically, if you talk to registered voters, most of them are voting this time around. Right. But there's no question that pollsters, what pollsters don't do, it's worth noting, it's not that they call 100 people and then just put that into an Excel sheet and show us the average of those 100 people. They are heavily weighted. It's a lot of art on top of the science of forming that likely electorate. The non-college educated male white voter that they found gets weighted as if he's three people and yada yada all the way down the

line. As I said, it sounds like that should be this enormous cause of polling error, but there's just not a lot of evidence that there is. If anything, what caused the great polling meltdown of 2016 was that they were wrong about the non-college-educated white voters for their likely electorate on the state level, but on the national level, it was fine. And that just shows you both how good, I guess, pollsters are, but also how just these tiny changes can make a big difference. That being said, because of the great polling meltdown of 2016, it makes it to me more likely that if anything,

pollsters are overcorrecting to underestimate Biden's support. Right. Which is kind of the opposite of what we're seeing in the polls. Yeah. Now, the interesting thing is, so I've been following the Nates,

Nate Cohn, Nate Silver, and Nate Silver has been making an interesting point that the national polling, the state-level polling that they have is not reflecting the size lead that the national polling is reflecting. And that could be either the state polling is more correct or it is not as high quality. Nate Silver was saying there aren't as many of the very high quality telephone polls conducted in these states. But I do wonder if the, especially in some of these states that were a swing and a miss in 2016, it's partly your phenomenon, Sarah, that they're over-weighting the white non-college educated voter to avoid the mistake, avoid that miss.

And so therefore, they might be very slightly under-polling Biden. I'm going to tell you, I... Wait, I've got a third one. Oh, okay, yes. The third one is the one that I hear the most from people.

And like this weekend, I felt very bombarded by this third one. So I want to explain why I don't think it's right. And this is that Trump is going to win in a landslide, not because Trump voters lie to pollsters, but that the people I talk to don't talk to pollsters. Right.

Because I don't talk to pollsters. The polls are underestimating Trump's victory, and therefore it's going to be a landslide for Trump, and it's going to shock the world. Okay, a couple things. One, this is not what caused the great polling debacle of 2016. Right.

But that doesn't mean that that alone is why this doesn't work. So for this to be true, because they use partisan affiliation as part of the waiting, it would mean that Trump, because he has attacked polls as fake news, has specifically gotten non-party affiliated voters who support him to not answer pollsters questions totally differently than Republicans who are answering pollsters questions. That's really hard to imagine. But what you would expect to see in those numbers is that maybe, in order for this to be true, you'd expect to see that registered Republican voters

were trending down in terms of their response rate. So with Democrats, they're just more willing to talk to pollsters. Republicans are less willing to talk to pollsters, but we're still finding them. We're still getting enough of them. We're having to weight them a little more than we would otherwise.

And then we're just assuming the independents are fine both ways. And that's where that hidden Trump vote could be. to talk to pollsters than Democrats. So once again, if anything, you'd be skewing the other direction just a little, that Trump supporters are eager to talk to pollsters. And so based on all three of these, David, if I were just to take these and then tell you whether I thought the polls were over or underestimating Biden's support, there's no question that you'd say for all these reasons and the data that we're seeing, the polls should be underestimating Biden's support unless they are correcting for these

possible factors. You know, I continue, and again, take this with a grain of salt because I live in red America. I'm totally stumped by this secret MAGA phenomenon because the last thing that MAGA is around here is secret. The last thing that MAGA is around here is shy. I mean, so we're being told two things at once. is shy. I mean, so we're being told two things at once. Look at how strong Trump is by the giant boat parade or the enormous proliferation of signs or the huge rallies. And these people are shy. You know, I just don't buy it. I mean, I could be totally wrong. And on our first post-election advisory opinions, we're talking about, yup, secret MAGA was a thing. But it, you know, I continue to believe that there's, there is a secret Biden and a secret MAGA, but where they are is secret Biden exists in red and secret MAGA exists in blue. And there's another thing I would say, here's why I look at the 10.7 and it doesn't feel like 10.7. I feel, how could that really actually be true? Because you have to go back to 1984,

1984 for a double-digit win. And I was old enough in 1984, Sarah, this might surprise you, was old enough in 1984 to actually remember sort of the feeling, like what it was like to be in America in 1984 when there was a looming landslide. It doesn't, it wasn't like this. And then I also remember in, you know, 88 was a coming landslide.

92 was a coming landslide. 96 was a coming landslide. 08 was a coming quasi landslide. 96 was a coming landslide. 08 was a coming quasi-landslide. And maybe the difference is this, Sarah. There's that famous quote, and I'm going to butcher it because it's been butchered so many times it's even hard to find the real quote. After Nixon in 72, it was a critic, I believe, a New York critic said, how did Nixon win? Nobody I knew voted for him. And I think we're so much more sorted now. We live in these landslide counties so much more that you're just not in an environment, if you're a partisan, as a general rule, where you're going to feel like you're in the minority, that partisans tend to cluster around other partisans. So they're going to feel like they're going to prevail. And I think the last time I sort of had this feeling like there is absolutely no way the GOP is going to

win was in 04. And where was I living in 04? I was living in Center City, Philly, and literally nobody I knew was voting for George Bush. And it has a psychological effect. So I think that our clustering has a psychological effect, especially on red. I think blue is still so paranoid from 2016 that they're white knuckling it. And maybe perhaps there's some overconfidence. That's that great Fox News question. who do you think your neighbors are voting for, that has gone up 10 points, Trump's neighborly support, where now 49% of people think their neighbors are supporting Donald Trump. But that 10-point growth has almost entirely come in the most liberal voters who they polled. And it's a really funny phenomenon of this 2016 PTSD, both among, interestingly, the people being polled and the people polling. Yeah. Yeah. But last question. Yeah. You look at North Carolina, Arizona, and Florida. Those are also holding very consistent.

They're between three and four points. They've been between three and four points. I know that doesn't sound like 10.7 in terms of a blowout, but winning a state by three and a half points is a blowout. Yeah, that is a comfortable victory. That is a no doubt about it, solid win, especially in states that have been so close. Well, especially Florida and some of these states have been so close. Fun fact, Florida has backed the winning presidential candidate every cycle since 1996 and has only gotten it wrong twice since 1928. Really? gotten it wrong twice since 1928. Really? The only state with a better winning record in the country is Ohio. Which Ohio is very, very, very close right now.

Yes. So on election night, I don't know about you, I will be watching Florida all night long, just refreshing refreshing because they count their absentee ballots early their clothes pull their polls close at 7 p.m except for that western edge of the panhandle and then i'll have another little like side window going on with north carolina but north carolina does not have the predictability behaviors that Florida has had in the past. But yeah, to your point about Ohio, Ohio is central time, so it's going to close a little later.

But if Ohio is super tight, that will also be an indication that the polls were right enough that this is trending one direction only now if ohio's not tight and if trump is uh winning florida even by a relatively small margin that's going to mean the polls were wrong and that to me will be like a uh uh you know pulling pulling the oh shit handle on the car. Yeah, well, and that's when the Nate Cohn upshot needle watch starts getting really interesting. The needle watch, for those who don't know, is that the upshot website on New York Times, Nate Cohn

has a tracker of the percentage chances of victory based as the returns start coming in. And in 2016, there was this sort of famous moment, maybe around 10, 10.30 p.m. Eastern, where the needle switched from overwhelming chance of Hillary Clinton victory to a overwhelming chance of Donald Trump victory. And briefly, Twitter erupted in anger at the needle. An ultimate shoot the messenger kind of moment. So here's a good question. How do you watch election returns come in? On my laptop. On your laptop. Now, do you have TVs on in the room also, or are you just lasered in on your lap. Now, do you have TVs on in the room also, or are you just lasered in on your computer?

Yeah, but generally someone else is going to be in the room with me and I'm sort of letting them control the TV remote. And I'm looking at the ticker at the bottom of the TV. I am not particularly paying attention to what set or what channel we're even on. And then I've got a bunch of Secretary of State websites open, usually the AP feed and the New York Times feed just to see if they're getting anything faster or slower. And also they usually have handy dandy maps that are showing you which counties they're getting in. And I like that for some of the states that I know more from my campaign travels, particularly in 2012. Did I tell you I hit like, I forget, eight swing states in 2012 and like spent real time in each of them. So I feel, yeah.

North Carolina, interestingly, one of the ones I did not spend any time in in 2012. Oh, interesting. In 2012, North Carolina went 14 Romney. Yeah. 1.2 percentage points, I believe, toward Romney. So I'm very similar. Laptop or iPad, I have about 15 tabs open. Every single swing state, Secretary of State website. And what I found in 2016 was the Pennsylvania Secretary of State website was about

10 to 15 minutes ahead of every news outlet as it updated. And so I just felt like I was getting the inside dope, but it was the publicly available. And I knew that the needle should have switched to 100% Trump probably 10 minutes before the needle did Sarah because wow yeah I was 10 minutes ahead of the needle thanks to the Pennsylvania Secretary of State then of course you I've got you know I usually go with the networks I usually don't do the cable networks that I usually go with the broadcast networks to watch because um they really pull in the firepower for the broadcast networks. And then the other thing is the text threads. Oh, yeah. The text messages.

For sure. Yeah. Yeah. I'll never forget in 04, this was... Oh, so 04, you're not really texting that much? No. No, not at all. I didn't even have a cell phone in 04, I don't think.

Are you serious? Well, I had a cell phone. No, in fact, I know I didn't have a cell phone because I got lost when I moved to DC and I stopped and had to call from a pay phone. Oh, you're kidding. Yeah. Yeah. So yeah, 04, man, it's amazing what a bright line difference there is between 04, It's amazing what a bright line difference there is between 04, 05, 06, 07, then 08, bam, iPhone, everything changes. But 04, I'll never forget it. We had email threads, not text threads. And I'll never forget getting an email message

from a very good friend of mine who was working very closely with the Bush campaign. And he said, Carl Rove just walked into the president's suite and said, congratulations, Mr. President. And this was, you know, and I felt like I'd just gotten this nugget of pure gold because this was way before anyone was calling anything.

And I couldn't even believe it. So I had to wait for the networks to make the call to believe it, of course. But I would urge y'all, if you want to nerd out on election day, do not focus on the TV. Do not. Get about 10, 15 tabs. And then if you are on Twitter, and hopefully you're not, but if you are subjected to Twitter,

make a specific list of the best political reporters and follow that list rather than all of the noise that's going to be on there. Great advice. So that's your helpful election guide. Let's take a moment and thank our sponsor, the Acton Line podcast. Acton Line is the flagship podcast of the Acton Institute for the Study of Religion and Liberty, dedicated to the promotion of a free and virtuous society characterized by individual liberty and sustained by religious principles. With episodes released every Wednesday, Act in Line brings together writers, economists, religious leaders, thinkers, journalists, newsmakers, and more in conversations that bridge the gap between good

intentions and sound economics. By demonstrating the compatibility of faith, liberty, and free markets, conversations on Acton Line reveal how economic freedom is essential to creating an environment in which religious freedom can flourish, but also that the market can function only when people behave morally. Faith and freedom must go hand in hand. To subscribe to Acton Line, hand in hand. To subscribe to ActonLine, visit acton.org slash opinions or search ActonLine on Apple Podcasts, Google Play, Spotify, Stitcher, or where fine podcasts are available. That's acton.org slash opinions to subscribe. Sarah, should we move on to... Law time! All right. So there were three CERT grants in very interesting cases. Two of the three more contentious.

One of the three, I think, very interesting from a law enforcement standpoint. But before that, do you want to share with the listeners your excitement over a deer jacking dissent? And do you want to describe what deer jacking dissent? And do you want to describe what deer jacking is? I would love nothing more than to tell you about deer jacking, David. And I think it shows, you know, your bias, your elitism is showing that you don't know what deer jacking is. I mean, you know, and if it actually has something to do with actual deer, that's really sad considering I grew up in a town where on the opening day of deer season,

it seemed like about half the guys were coming into class in their camos after having already been hunting since dawn, before dawn. So tell us about deer jacking. So deer jacking is unlawfully hunting a deer at night. And this is a term that Vermonters use. Okay. So yeah, so that's deer jacking. So this is a case about deer jacking.

So the authorities had gotten a tip that there was deer jacking going on. And they even got a tip about who was doing it. A guy named Clyde. So the game wardens headed over to Clyde's house and, uh, on doing so they sort of wandered his property and, you know, it's a pretty rural area. They include a picture by the way in this statement. So you can, you can see it. But there's a detached garage with a big driveway and there's some windows on that detached garage. And so they're peeking through the windows. And in doing so, they see what they think could be deer hair

on the tailgate of a parked truck. This took about 15 minutes of wandering on the property. And in fact, they never went and knocked on the door. Clyde's wife came out, and she was the one who initiated the conversation. They asked her if they had consent to search, and she said no. So there's a doctrine called the uh knock and talk david where like you can knock on someone's door as an officer and if you can talk your way inside and get them to consent to a

search you don't need a warrant right and this happens a lot and there's a lot of potential abuse involved in that a lot of people don't know that the officers don't have a warrant. The officers just sort of speak with authority and say in which on their way up to the door, there's, you know, plain sight doctrine, right? Like they can, if they see a murder victim in your lawn,

they don't need a warrant at that point. It's in plain sight. Um, so they claim that they were doing, going to do the knock and talk. And in doing so, do you know that deer. And in doing so, that deer hair was in plain sight,

even though it took them 15 minutes and they're wandering the property and looking through windows. And so what's interesting about this is that Gorsuch is writing the statement on the denial of cert. And he ends by saying that he understands the reasons for his colleagues' decision to let this case go. For one, it is unclear whether the law in question, in their own Supreme Court binding opinion in question, was actually missed for bad reasons, or whether there might be reason to hope that while Vermont

missed that case in one deerjacking case, its oversight will prove a stray mistake. But however all that may be, the error here remains worth highlighting to ensure it does not recur. There exist no semi-private areas within the curtilage where governmental agents may roam from edge to edge. Nor does our case law afford officers a 15-minute grace period to run around collecting as much evidence as possible before the clock runs out or the homeowner intervenes. The Constitution's historic protections for the sanctity of the home and its surroundings demand more respect from us than we displayed here. Now, David, this was Gorsuch joined by Kagan and Sotomayor, which we have highlighted this for our listeners before. But this is Gorsuch going full Scalia, Fourth Amendment, big heart around the Fourth Amendment.

Scalia, Fourth Amendment, big heart around the Fourth Amendment, lots of love notes being passed in class between Justice Gorsuch and the Fourth Amendment, picking up right where Scalia left off. He may be conservative in a variety of ways that liberals find distasteful, but Scalia was always able to point to his Fourth Amendment jurisprudence as an area where he may want a different outcome as a citizen, but the law demanded this outcome. I'm not sure Gorsuch would say that he would want a different outcome, actually, because I think he's into the privacy protections. But fascinating look at a conservative justice with a love letter to the criminal defense bar. Yeah. And you know who else might end up being like that? One Amy Coney Barrett.

I think so. I think so. I mean, if I had to be a betting, if I had to bet, I would bet you're going to see some interesting alignments with the three Democratic appointees and Amy Coney Barrett

and Gorsuch in some of these criminal procedure cases. But let's stay with criminal procedure. Wait, also fascinating on deerjacking, Justice Breyer, that's the only vote they were missing. If they were able to get Justice Breyer's vote on deerjacking, cert would have been granted. So not only did Justice Breyer not join the statement on the denial of cert, but he clearly did not vote to take this deerjacking case. Interesting, interesting, interesting. That is very interesting. Huh. See, listeners, you had no idea that deerjacking could be this fascinating. I mean, it's such a great name. I'm so into, like, if we could talk about deerjacking longer, I would. That's fantastic. I love it. All right.

Well, let's move on to another case that is really interesting. And I don't know if this happens to you, you know, constitutional law expert that you are, Sarah. But do you ever see the Supreme Court take a case and think, what, that wasn't settled already? This one definitely fell closer to that line. But let me remind you of a 2001 case before we even get into what this case is about. In 2001, in the case of Atwater versus Lago Vista, you remember this one? This is where a woman is pulled over for a seatbelt violation

and she is arrested. And it's a misdemeanor seatbelt violation. And the Supreme Court held that it does not violate your Fourth Amendment rights to arrest someone for a misdemeanor seatbelt violation. So, fast forward to 2020, David. Yes. Fast forward to 2020. And here is the basic question in the case. And it is, and I shall read it to you. It is, and I shall read it to you. Absent consent or exigent circumstances,

a police officer's entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless pursuant to a warrant. That's the normal law. So here's the question. Does pursuit of a person who a police officer has probable cause to believe has committed a misdemeanor

categorically qualify as an exigent circumstance sufficient to allow the officer to enter a home without a warrant in other words if they believe you've committed a misdemeanor can they come into your home in pursuit of you hot pursuit pursuit. This is actually the doctrine of hot pursuit, which sounds like it's some sort of lame movie title, but I, like deer jacking, will be using hot pursuit during the rest of our discussion on this case. So what I like about this is the petitioners who are seeking review of this case called it an ideal case to discern whether or not the hot pursuit doctrine applies to misdemeanors. And if I'm seeking Supreme Court review, I do agree this is an

ideal case because the old saying, bad facts make bad law. Good facts make good law. So here's what petitioner Arthur Lang was doing when he was driving home. He was listening to loud music in his own car and honked his horn a couple of times. A highway patrol officer began following Mr. Lang, intending to conduct a traffic stop. But he didn't turn on his lights. He didn't activate a siren until Mr. Lange's station wagon reached his house. Then as he reached his house, he activated his garage door opener and started to pull into his driveway. The officer activated his overhead lights, but not his siren or his megaphone.

And that, I love this, I love this, this statement in the Statement of Facts. At that point, Mr. Lang was about as far from his driveway as first base is from second. I guess you could say like 90 feet. I don't know. Approximately four seconds later, he turned into his driveway and parked in the garage. So the officer parks in the driveway. As Mr. Lang gets out of his car and starts to shut his garage door, the officer stuck his foot under the door to stop it and just walked into the garage. At that point, they have a confrontation, not a violent confrontation. The officer talks to

him, tells him he could smell alcohol in his breath order him out of the garage for a dui investigation so the question was could he walk waltz on into the garage because mr lang had honked his horn and played loud music which is at best at best a misdemeanor um what say ye, Sarah? Well, you know, it's interesting because if you can arrest someone for a crime that is not punishable by time in jail, it is only punishable by a fine, I think that's somewhat relevant to this

under Fourth Amendment jurisprudence. I think that's somewhat relevant to this under fourth amendment jurisprudence. Um, but you know, I would add some negative facts to this. So he was listening to loud music and honking, despite there being no other cars around. That is odd and annoying. Yes.

No, no. I mean, let's assume it's a misdemeanor. Like let's assume that it's a misdemeanor. Yes. No, no, I mean, let's assume it's a misdemeanor. Like let's assume that it's a misdemeanor. Yeah. Uh, so,

you know, there's that. Um, I, though I thought that putting the foot under the garage door was problematic for some hot pursuit, right? Like he's not saying, stop, come here. I want to talk to you. He's just like going right ahead, going on in.

Just walking on into the guy's garage. So there's two, basically the reason that the court granted cert on this, and by the way, you got to wonder, is this being granted cert because they got Breyer's vote on this, and by the way, you got to wonder, is this being granted cert because they got Breyer's vote on this one and not the other one? So is this the Gorsuch, Kagan, Sotomayor, Fourth Amendment triumvirate? And Breyer was like, look, I'm not keen on deerjacking, but I'll do hot pursuit. Can I call it hot fuzz for the rest of the time? Okay. Anyway anyway because there is a circuit split on this question and there's not really a circuit split on the deer jacking question yet there was

just sort of this one-off vermont problem which is a bummer for clyde by the way but generally the court does not take cases just to fix individual wrongs. So the circuit split on the hot pursuit is whether there's just a categorical, it's okay, you can always do hot pursuit. In the case of a misdemeanor, something David, I don't think, loves. No, not in love with that. Or whether in fact,

there's sort of a circumstantial, you know, there needs to be a reason beyond just, I think a misdemeanor was done, was committed. Right. Right. Yeah. I mean, I think that I think the court took this to make short work of the idea that you can waltz into somebody's home in pursuit on a misdemeanor. It will be interesting, but I do agree with you, Sarah, that the idea that the Supreme court upheld,

upheld making an arrest for a misdemeanor and arrest, um, does add a wrinkle here, a slight wrinkle, but to the extent that there's a wrinkle, I bet judge Gorsuch would get out the old iron and maybe flatten that sucker out and cast doubt on the idea of an arrest for a misdemeanor. The problem is, though, with the fact-specific

hot pursuit line where the officer needs to face a compelling need for official action and had no time to secure a warrant, you know, you end up with this balancing test, briar-like, six-part, blah-de-blah, and no clear guidance to officers or even lower courts, because then we're just going to have the emergence of 50,000 different ways to have a balancing test. Believe me, there's plenty of balancing tests in law and we have to have them, but I'm just not sure that you're going to find a fifth vote for another balancing test that then they're going to have to quote unquote police for the next

decade as they sort out what that balancing test means. So I don't know, David, I know you fall on a certain side of this, but where's that fifth vote coming from? Maybe Amy Coney Barrett, maybe. Come on, ACB. But right now I only see four votes. All right. Well, we have a disagreement on the outcome of a Supreme Court case.

And I, for one, am confident in my position. So we I think there's a Roberts, a potential Roberts fifth vote. Maybe. Maybe. Yeah.

Yeah. OK, well, this is interesting because I think you got some pretty good facts here. You do. You've got because I think you got some pretty good facts here. You do. You've got, yeah, you got some pretty good facts here. You got good facts and you've got a good circuit split. Yeah, yeah. Interesting. Oh, good. I like it when we, well, we'll have to table this, of course, until the oral arguments.

It'll be a while. Until then, we're going to be like the sharks and the jets. I'm laying versus California. And I will be in hot pursuit of David's bad takes. Let's take a minute and thank our sponsor, ExpressVPN. I'm not sure if you've seen the documentary, The Social Dilemma on Netflix. If you haven't, I recommend it. I think I probably had about 15 listeners email me and say, you talk about polarization all the time. You got to see

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All right, shall we move on to another? This one? Okay, do you want to do asylum or border wall? Asylum, asylum. All right, you take the lead on this one, Sarah. All right, so you may have heard of something called the Remain in Mexico policy. It is officially called the Migrant Protection Protocols. But basically what this means is that

when you show up at a checkpoint, a border checkpoint, particularly on the southern border, obviously, and claim asylum, meaning you have fear of persecution based on your status in a protected class, religion, race, ethnicity, national origin, political persecution also is included. When you claim that asylum, in the meantime, you wait in Mexico as your claims are adjudicated. This policy was put forward by the Trump administration and was not put through notice and comment. We've talked about that before, but that's required for some administrative changes to policy by an administration. And if something falls under the Administrative Policy Act, you're in big trouble because it is long it is

complicated and it is miserable so the court granted cert on four questions related to the mpp uh whether it's lawful under the ina like whether it's lawful under the INA, like whether it's statutorily contradicted by the INA, whether it's consistent with non-refoulement obligations, that's a fun term that we can get to later, whether it's exempt from the APA, as I just said, the notice and comment rulemaking, and whether the preliminary injunction entered by the district court is overbroad.

So the procedural posture of this case was pretty interesting. And it had a, you know, anyone who watches the court believe this had a 100% chance of being granted cert because of the procedural posture. So basically the district court entered a preliminary injunction barring the Trump administration from implementing the remain in Mexico policy. The ninth circuit upheld the injunction, but stayed their order until the government could seek review at the Supreme court. until the government could seek review at the Supreme Court. Huh. So one, like, and it's obviously the Ninth Circuit,

which was like a lot of restraint by the Ninth Circuit, a surprising amount of restraint. So either the Ninth Circuit is getting a little nervous that the court is going to take one of these nationwide injunction cases and come up with some rules for the lower courts on when they can and cannot issue nationwide injunctions. Or the Ninth Circuit itself thinks that this is not as strong a case as it purports to say that it is in its own opinion, actually. So the statutory framework for this, David, is a wee bit complicated if I'm being very honest with listeners.

So I don't- Oh, yes. I don't want- Oh, yes, it is. I don't want to walk through all of it. But here's the problem. You've got B1s and B2s. There's no question that B2s under the INA statute can remain in Mexico.

Under B2s, it says, in the case of an alien described in subparagraph A who is arriving on land from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229A of this title. The problem is that there's this whole other B1 section about people showing up and whether they quote unquote shall be heard by an asylum officer and whether that somehow contradicts that B2 language that I just read you. Again, I do not think this is worth going into a lot of detail with our listeners, except to say this is an intensive statutory interpretation case at this

point. Yeah, this is one. So one of the things that I like to do, and again, no doubt countless listeners would like to also do this along with the 15 Secretary of State tabs. But as soon as you see a cert grant, I like to run and reread and read the cert petition and the response. And I'll tell you what, Sarah, the statutory spider web of this case is really something else it it really is and so i'm i'm interested in how the court uh works through that sort of spider web or that statutory maze but i'm also really interested in this nationwide injunction question because this is something that trust me is i shall i predict that the attitudes for its nationwide injunction may begin to suddenly shift on a partisan basis starting on as early as November 4th? So nationwide injunctions have been a tool used by both sides of the political divide, especially when a president acts without Congress,

whether it's an executive order, a memorandum, regulations. You will have activist groups that will challenge the executive action. They'll typically go and they, everyone knows what are jurisdictions that are more favorable or less favorable to their argument. Go to that jurisdiction, more favorable or less favorable to their argument, go to that jurisdiction, procure an injunction that doesn't just apply within the jurisdiction of the court, say, Middle District of Tennessee, Western District of Texas, but instead, the judge will enter an order enjoining enforcement both within his judicial district and across the entire United States of America, which has the effect of blocking and grinding to a halt the engine of executive power. And often this is not unwound for a year or up to two years. And it's a way of sort of creating a holding action or a blocking or a delaying action

until another election or until another president. And so it's something that is of immense frustration to the party that controls the presidency, and it is a source of immense power to dissenters outside the party that controls the presidency. saw nationwide injunctions entered against some Obama programs before Trump. You've seen a lot of nationwide injunctions entered against Trump programs and a lot of frustration. And I myself have, I think the use of a nationwide injunction by a district judge is almost always overreach, is my own view. And it will be interesting to see if this is one of the effects of this case is paring back that ability to grant a nationwide injunction. It's been a long time in the making. I think that the Supreme Court is getting frustrated with it. I think it will be interesting if they don't really do much on this, what happens in the Biden administration or the 2024 Harris administration, whatever, at the point that the Democratic Party takes over? Whether we'll see the same number or same increasing same rate of increase over nationwide injunctions.

I'm not sure. But it's been a lot, David. Yeah. It has been a lot. It has been a lot. And I think that those, you know, here's where I think Roberts is going to exert some anti-nationwide injunction pressure through sort of the institutional, sort of his institutionalist side. Because if there's an area, there's a number of areas in which there has been an increasing concern about judicial supremacy. And certainly nationwide injunctions are one part

of that puzzle. It is one thing to have the Western District of Texas say, in the Western District of Texas, you may not enforce law X. It's another thing entirely from to say across the entire United States of America, you may not enforce the law. But what do you make of the fact that they granted this on the return to Mexico policy, which unlike, for instance, I'm trying to think of other cases where they did that. Let's call it the grant money on sanctuary cities. There was a nationwide injunction on that that forced the administration to give all of the cities that were eligible for this grant money on law enforcement to give them the grant money regardless of their status as a sanctuary city or not a sanctuary city, even though not all the cities had even sued about it. So that's a case where all of the potential plaintiffs could have and certainly had the resources and were individualized enough that they could have gone to court, and yet there was a nationwide injunction.

In this case, though, when you're talking about an administration policy that affects the whole southern border, wouldn't it be strange if if you went to San Diego, you didn't have to remain in Mexico, but if you went to Laredo, you did? Well, that's the argument for the nationwide injunction is, well, wait a minute. The other side, does it mean that depending on where I go into a port of entry that I have different rights? Which also, though, happens to be a not uncommon phenomenon in American law where you have different circuits and that circuit split is resolved by the Supreme Court. You have judicial districts that will reach different decisions on cases. They'll be resolved by their circuit court of appeals. So yeah, it is incongruous, incongruity. There is some incongruity, but that's normal in American law as the law, Sarah, as you like to say, matures. I think that's true, but if this is the case that they're going to resolve it on, to your point about which way the facts point on this, this is one of the cases where nationwide injunctions make more sense, not less sense.

That is true. The outcome, Clarence Thomas, maybe the cheese standing alone is what this could mean. We'll see. Yeah. Some interesting stats on asylum, by the way, on just the merits on this. In 2009, the Department of Homeland Security conducted 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The people, the number of those aliens placed in removal proceedings jumped 19-fold during that time. And at least as of a year ago, there were 600,000 cases pending, triple from 2009.

So some of this also is the system is getting overburdened and what the courts do when the executive branch is saying like, look, this isn't, we can't keep, this isn't working circumstances of change. We're having to adjust to circumstances. It's something closer to prosecutorial discretion potentially. And I think this court in particular has been pretty deferential to administration saying we're the ones who have to enforce these laws and we're telling you this is how we need to enforce them barring some very clear constitutional right being violated So I'm not sure, back to my statutory deep dark hole of B1s versus B2s, that may be a pretty good technical statutory argument where it's a coin flip over whether you think the B1s can be treated like the B2s. I don't think it's going to be a close call that the coin is going to flip in favor of deferring to the administration, given what they're going to be able to say about the changes in the reality of asylum claims along the border. Can I offer a quick asylum policy detour for just a moment before we hit the border wall. So I think if there is an area of immigration law

that's a desperate need of attention, if Washington ever functioned again, it would be asylum. No question. Not just from our ability to process these cases and our ability to ramp up adjudication so that it's done in an efficient and it's done fairly efficiently in a timely basis. The asylum laws themselves were designed for a world that is less relevant than the world that exists today

in the sense that they're designed to deal with official persecution, state persecution, where in many failing states in countries that have, for lack of a better term, governments that are just too weak to govern, what you end up with are people facing persecution not from governments or facing mortal peril not from governments, but often from the absence of governments and the presence of things like narco-terrorism or gangs. And so under traditional asylum law, you're kind of out of luck, even though you're under equal or more threat than you would have been

had the government been actually engaging in persecution. And that's why you see this enormous 19-fold increase. It's because of those Northern Triangle countries in Central America that are so, their governments are failed states, and MS-13 is by and large running these neighborhoods and indiscriminately killing people. The problem is that violence, you're right, is not a meritable asylum claim. And so you have people coming saying, we have a 25% chance of being murdered in my neighborhood. And when you talk to people about that and you talk about the credible fear standard, they're like, well, that sounds like a pretty credible fear to me.

Yeah, it's not a credible fear of violence. It's official violence by the state on a, you know, against a protected class because you're right. It was made for a time where there were strong nation states that were committing genocide, for instance. Yeah. So you could seek asylum if you were one of the people being targeted for genocide. So what do you do about these Northern Triangle countries? And yeah, so the law just doesn't take that into account

in what the United States' policy should be. But our asylum system is completely ill-prepared for this. You also have a domestic violence problem that's similar in a way. A woman flees with her children from an abusive marriage. She has a very credible fear that if she goes back,

he will kill her, oftentimes. But that's not a credible fear of official violence. Right. And so we're sending women and their children either back or to sort of meander through other countries um because that our asylum system doesn't take that into effect so regardless of which side whether we should be offering more asylum less asylum

right now the system doesn't even factor any of this in and it needs to if we want to deal with again these 19-fold increases as we're trying to adjudicate what credible fear means and asking officers along the border to do that yeah it's just not designed for the present world it's much more designed for the world of the cold war where you sort sort of had your, you know, the stark division between those nations behind the Iron Curtain, those nations that were under totalitarian control, and those nations that belonged to, you know, part of the free world. And so you're trying to protect people from this state sponsor, this state totalitarianism, not envisioning sort of the world of the criminal, the totalitarianism

and the iron thumb of criminal violence. And it's also reflected in some of the flaws we had in our legal posture in going into the war on terror. Our laws of war were very much designed to deal with war between uniformed military forces between nation states. Our laws of war were not very well constructed to deal with a war against a non-state actor that acted within the boundaries of a nation state. It's very challenging, and we never really fully updated all of that. We never really fully got a handle on that, but that's a whole other discussion. Well, last point on asylum, Ben. The result that we have right now is that people are fleeing gang violence in these three countries, passing through several countries to get then to the United States,

including Mexico. What the Remain in Mexico policy does and why it works is that Mexico is not committing genocide against anyone. There's no official government violence against groups. And so therefore, according to our asylum laws, there should be no problem with folks staying in Mexico. But there are absolutely narco-trafficking gangs, especially along the southern border in Mexico. So the very thing these people are fleeing, they're then in neighborhoods that also have these problems, which is not great. Then there's also the pass-through safe third country rule, where if you pass through any other country that doesn't have whatever you're claiming is the official violence that you're suffering in your home country, you should have applied for asylum in that country.

These are all things that the administration has been trying to lower those numbers at the southern border. The result is that there are now tens of thousands of people sitting in Mexico along the southern border waiting months and months to have their claims adjudicated which will create a different humanitarian crisis but it will create one nonetheless yeah it is a mess it it's it's just and it's one of these things that and because immigration is such a hot potato um what it's a system crying out for system it's a system crying out for reform from top to bottom uh but sticking with immigration sticking with immigration the supreme court took the one of the border wall challenges um and this is interesting to me because the um this is interesting to me because the emergency declaration along the southern border is one of the more poorly understood legal issues that is arising from the Trump presidency.

And what's really interesting for me is we tended to focus on in that whole debate over whether or not the declaration of emergency was lawful, whether or not the declaration of emergency was appropriate. And it seemed to me that the Trump administration, just as a matter of law, was always on very strong grounds to say, we have wide discretion to declare an emergency. And the law provides that Congress

has the ability to do something about it law provides that Congress has the ability to do something about it, but then we have the ability to veto. So there's a mechanism. We have the ability to declare declaration of emergency under the law. Congress has a check on that, but it's got to be that supermajority check. You didn't have the supermajority check. Therefore, we win on a declaration of emergency. And so a lot of people just sort of looked at it that simplistically. If he can declare an emergency, then he can divert money. But a declaration of emergency is not a stamp that says, do what you want, Mr. President, within the scope of the emergency.

What it does is it just unlocks other statutes that have their own provisions and limits on the use of funds, even in kind of emergency or extraordinary circumstances. And so what this case is about, it is not about, at its core, it is not about whether or not Trump could have declared an emergency on the border. It's whether he exceeded his statutory authority under the statute that allowed him to, that purported to allow him to transfer $2.5 billion of construction money to begin to construct the border wall. So it's not about was the declaration of emergency appropriate, it's was this specific statute that you use to transfer money, was that violated? And what's interesting is this statute contains a proviso that says transfer may not be used unless for higher

priority items based on unforeseen military requirements than those for which originally appropriated in no case for the item for which the funds are requested has been denied by Congress. And in no case for the item for which funds are requested has been denied by Congress. So the question here, Sarah, is essentially isn't about the state of emergency really at all. It's about this particular $2.5 billion pot of money. And that's really always been the emergency declaration border wall controversy. And once again, you end up where the headlines

that you see in mainstream publications that reach non-lawyers, I think do a real disservice to their readers. Yeah. This is a statutory interpretation case. So is the asylum case. But the headlines that we're going to see out of this are Supreme Court okays Trump's border wall or Supreme Court rejects Trump's border wall. And I get it because that's a much better headline than Supreme Court decides that section 18 blah, blah, blah of the INA actually does apply to asylum. looks like they're just voting thumbs up or thumbs down on the policies themselves, like asylum seekers or border wall, when in fact, they're at least going through these very rigorous

analyses of statutes that are complicated and unpleasant to read. Yeah. Well, and, you know, one of the things I think that is fascinating, and this phrase is a really another issue about the border controversy that is really fascinating to me. And that is the difference between a civilian and a military border mission. So a lot of, you know, one of the things that you will have is you'll have people when you're having this conversation and this discussion, you'll say, well, of course, border control is a military mission. What if the Mexican

army was invading us? Well, yeah, then that would be a military mission unquestionably because what you would have is a military action. And a military action necessitates a military response. In such circumstances, a wall would almost be function in much the way that a fortification does, that it would be a military facility. The interesting thing about the border wall is the border wall is being constructed to deal with a civilian law enforcement problem and will be ultimately manned and maintained by civilian agencies, and yet this is being diverted under military authorities. being diverted under military authorities. It's a very fascinating legal issue, and it's one where if my submission is that if the court did not take a general hands-off approach to commander-in-chief type legal issues, the court is often loathe to intervene into a president's national security

judgment. It's one where statutorily, it's a tougher case for the administration to make if absent that deference. Because even if you look at sort of the Trump declaration as to why he wants to divert the finances, it says, or divert the military funding. It says, the southern border is a major entry point for criminals, gang members, and illicit narcotics.

The problem of large-scale unlawful migration through the southern border is long-standing. So essentially what you've got, and then it says we've got an increase in the number of family units entering, seeking entry in the United States. What you don't see in there, all of these are classic law enforcement problems. These are traditionally civilian challenges

being utilized to authorize a military fund transfer. And I think that that's an interesting dichotomy, and I would really like to see the Supreme Court dive into that and sort of flesh that out because that has gotten totally mixed up in a lot of the public argument and discussion about this. When you have borders with allies like Canada and Mexico, that is generally a civilian challenge. When you have a border with an enemy, like say between Israel and Syria or Israel and Gaza, that is a different issue. That is a military challenge. Your border defenses there are military fortifications. Anyway, I could talk forever on this

and we'll lose everybody, but I think that's going to be a sort of a fascinating part of this case. Well, before we leave, I also just want to thank listeners for so many kind and interesting comments that we got after our discussion last week about unequally yoked marriages, let's call them. But one in particular I wanted to point out, which was a listener wrote a very thoughtful response that when I said that

we weren't teaching men how to be in those marriages that I should have included, we're not teaching women how to be in those marriages either. I thought that was a really good point and one that I should have made. Yeah, it was, we got, you know, we should, because we unfortunately don't have time today. We should actually pull out some of the best comments that we got and additional questions. Because it's pretty clear that a lot of listeners wanted more discussion of that. And so we should do that for future. And until then, Sarah, I have a viewing assignment for you.

Oh, yes. Yes. And you will thank me. Two words. Ted Lasso. That's so funny. Someone told me that last night. Is that right? Yeah.

Ted Lasso. Okay. Nancy and I are totally united in love for the TV show Ted Lasso on Apple TV. I watched the preview a few months back when it very first I was, I was teetering and I teetered away for no particular reason, but I'm going to teeter back this week. However, this coming weekend, David, uh, I will be MIA phone down, not reachable because pandemic season zero is arriving. I have a babysitter coming for the brisket. Motherhood takes second stage to the board game. Well, we look forward to a full blow-by-blow report

of your response to see if you could do better than Dr. Fauci and the Trump administration. We watched a 10-minute video last night explaining the rules. Oh, I love it. Amazing. Amazing. It looks pretty awesome. We will not

go down that rabbit hole until next week. We will be back on Thursday, and maybe Sarah will have seen some Ted Lasso, at which point I have confidence she'll want to commandeer the entire podcast to talk about the wonder that is Ted Lasso. All right. But until then, until then, we are done for today and we will talk to you again on Thursday. Thank you.