Advisory Opinions - Depends What You Mean By 'Shall'

Episode Date: December 13, 2022

Oral arguments on Biden's immigration (in)action push the Supreme Court to decide on the meaning of "shall," and to wrestle with the upshot of two government branches unwilling to do their jobs. David notices that Loudoun County is gaining national notoriety (again!). Plus: Can legal wins for religious freedom lead to a culture war cool down? Show Notes: -David's Loudoun county aside -David's religious freedom aside Producer note: if you're ready to get serious about your spicy takes... Learn more about your ad choices. Visit megaphone.fm/adchoices

And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC Cashback Mastercard? Well, if he wants to earn cashback on his purchases, he will, and... Oh, hang on. He's at the computer with his card, and he's done it! Oh, clicky-click magic trick! The clicker around the room! You guys just about finished?

Sorry, we got excited. Thanks for snagging those tickets. Make every purchase highlight worthy with the BMO Toronto FC Cashback Mastercard. Ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And we've got immigration to cover today. A case that's in so many ways about a theme that we've talked about before on this year podcast, which is Congress is messed up. And when Congress is really messed up, what do you do? So that's

a theme today in immigration. We're also going to talk a little bit about an Eighth Circuit religious liberty case. And this is an interesting case, although the outcome not remotely surprising. And then we're going to, maybe if we've got a little bit of time, we're going to talk about an oral argument yesterday in the fourth, not yesterday, what am I talking about, Sarah? You're going to hear this on Tuesday. We're recording on Monday and the oral arguments were not on Sunday. But oral arguments a couple of days ago and a really interesting racial discrimination claim that's got some lessons for it, that has some lessons based on some of the things that came out in oral argument.

But why don't we just go ahead and skip straight on to the main event? Sarah, do you want to intro our case of challenging Joe Biden's immigration priorities? I do. This is going to be a bit thorny to get into some of the weeds on. Oh, gosh. So we're just going to do our best and forgive me along the way. So the Supreme Court actually accepted three different QPs here, questions presented, all of which are kind of fascinating and really important questions for this term all by themselves. It'll be interesting to see which ones they actually decide to answer. There's a possibility that we're going to get more briefing.

I mean, this case got, it's thick, David. So the first question is about state standing, something we've had to deal with many times at this court before. And remember, we've given you the spicy Alito rundown of all the times when states did have standing when it seemed to favor one part of the ideological spectrum and all the times when states didn't have standing when it seemed to perhaps favor the other side of the ideological spectrum. The overall point being, though, that state standing at the Supreme Court has become a bit of a mess. You know, you start with Massachusetts VEPA, which was, you know, coastal erosion and things like that, which, you know, seemed like fun and

games at the time. But at the point you start giving states this special solicitude, they call it, when it comes to standing, it's opened up a box where now states get to go into court for their feelings all the time. And so you see the Supreme Court kind of grappling with this standing question, obviously quite a bit this term, but that's question number one that we're going to get to. And it has nothing to do with immigration in particular, except to say that do states have the ability to challenge non-enforcement by the federal government of any laws passed by Congress? Labor laws, environmental laws, immigration laws. Do the states get to say, well, that hurts us if you don't enforce it? get to say, well, that hurts us if you don't enforce it. Number two is what the Biden administration is doing about immigration, lawful or unlawful. We'll dive into those details in a second. But number three, David, nationwide injunctions, part 77.

But here you have the Solicitor General's office coming in hot on the nationwide injunctions and saying that, you know, for the last 40 plus years, the courts have just gotten this wrong, including in that Administrative Procedure Act context where there is the specific set aside language. And just to remind you, the Administrative Procedures Act of 1946 says that while setting, you know, conditions on administrative authority, Congress also broadly allowed lawsuits against those federal agencies. Quote, a reviewing court shall hold unlawful and set aside agency action, end quote, that exceeds that agency's authority. Courts have, at this point now, long held that that means, that set aside language

means nationwide injunction. So not just the parties before you, not just the state affected or whatever else, but nationwide. It is a total, the administration cannot enforce that. The problem, as we've talked about many times in this podcast, is once again, you sort of have this runaway train effect where it was used so sparingly from, you know, the 70s to the aughts.

And then in the Obama administration, it really picked up. And then in the Trump administration, it really picked up. And now in the Trump administration, it really picked up. And now in the Biden administration, we're of course seeing the same thing. And the result is this race to the Supreme Court, a lot more things on the emergency docket. And that question one and three, lots of standing for states, a strong version of standing for states, along with a strong version of nationwide injunction powers for district courts means a big emergency docket for the Supreme Court, something that everyone feels like they don't love. But how do you reign that in? So question one, standing, question two,

merits, question three, remedy, in this case, the question over nationwide injunctions. David, it was another good argument at the court. You want to give your high level thoughts and feelings? Yeah, no. One, it was a good argument. Two, you could really see the DC Circuit veterans kind of coming together, coming together. So this was Kentucky Brown Jackson, Justice Kavanaugh, Justice Roberts on the injunction issue. And this was, wait a minute, because the D.C. Circuit has extensive experience in dealing with Administrative Procedure Act questions, kind of with the view that set aside means set aside, doesn't it? So I thought that that was interesting alignment based on some real experience. The standing party...

Justice Gorsuch very much on the other side, by the way. Right, right. He said, for the benefit of those of us who haven't been on, served on the DC circuit at one point, Justice Kavanaugh doing this long soliloquy with, asking a question of Solicitor General Prelogger that ends with, that was more of a comment than a question. Yeah. So that was fascinating. The standing argument struck me as,

are we really closing the barn door after all the horses have left? Kind of sense to it that has echoes and what we might be hearing when it comes to the student loan case coming up when the federal government takes action and the action is going to have some impact on states i mean some impact obviously if you're not detaining uh if you're not detaining illegal immigrants, there's, there are going to be radiating impacts from that. And all of that struck me. So one in three, here's the way I thought about this, Sarah. One in three, which is standing and remedy, which are constant issues that we're talking about when we're talking about executive actions, when we're talking about things like the Biden student loan program, when we're talking about the travel ban, when we're talking so many issues have system that says that Congress is, you know,

it's the lawmaking authority. It's the appropriating authority. And what happens if the lawmaking authority and the appropriating authority, appropriating, I mean, appropriating money, in other words, allocating dollars to accomplish legislative goals? allocating dollars to accomplish legislative goals, what if Congress doesn't do its job? We're kind of all in a mess. And this is exactly that. Because what happened here is there was a memorandum that allocated priorities for immigration enforcement. And why would you need to have priorities for immigration enforcement. And why would you need to have priorities for immigration

enforcement, especially when Congress says that illegal immigrants shall be detained? Well, there's a little problem here, Sarah. Congress passes a law that says immigrants shall be detained and then does not appropriate the resources for detaining said immigrants. So it is literally impossible to comply with the law as written. And why is it literally impossible? Because Congress has made it impossible to comply with its own law. And so in that circumstance, that's why we have cases like this where courts are in the box that they're in. They're in the challenge that they're in. And this is not a situation like DAPA or DACA where, you know, Barack Obama, for example, says Congress failed to ask, so failed to act, so I must. In other words, Congress failed to enact the policy that I wanted.

And so therefore, I'm enacting it under my own authority. Now, this is literally a case where Congress said one thing, made it mandatory, and then did not provide the funding to do the thing that it made mandatory. So what a mess, Sarah. It's just my main, that's my high level takeaway. Yeah. I mean, it's, it's actually the other side of that coin of Congress doesn't do anything and I've got a pen and a phone. Right. Here, Congress did something, but I didn't actually like it that much and they didn't provide the money to do it anyway because it's really both right yeah right they don't want to do it either they don't want to do it just to a varying degrees

and we'll get into another case that was argued in the fifth circuit last week um that's the same posture as this one where congress says something and an administration's like, yeah, but like, not really though, right? Yes. So I want to read you the statutory language. 1226C, the attorney general shall take into custody any alien who has committed certain crimes, including, among others, crimes of moral turpitude, drug offenses, aggregated felonies, sex trafficking, human trafficking, money laundering, firearm offenses, and particularly serious violations of religious freedom committed by servants of foreign governments. We're going to call that a post 9-11 special. Uh, it's not actually, but that is what that's in reference to um and then 1231 a when an alien is ordered removed the attorney general shall remove the alien from the united states within a period of 90 days so here i mean the two big problems right dav, David? And I thought that the Solicitor General's office, and can we just go on a quick cul-de-sac right here? Sure, cul-de-sac away.

Because we had some moments in the comment section about me getting worked up about the idea of calling her General Prelogger. Oh, okay. That happened repeatedly in this argument, by the way. And I found it equally annoying. And people were pointing out that I didn't actually explain the reason why I find it annoying. So for the same reason that postmaster general, attorney general, solicitor general, the general is the adjective. It's that they have general authorities, if you will.

And so for the same reason that you don't call the postmaster general general they're not a general um it would be a little like uh calling the chief justice chief which actually we do all the time but calling the associate justice associate which we absolutely don't And in that case with the chief, I at least think in context, you're not getting that person confused with say a military general, which is the correct use of general, not an adjectival form.

So anyway, thank you for coming to my TED Talk. We'll get back to the main program now. But yes, that's why I object to solicitor general. And it's just not that hard to just say the whole thing, unless you're a sitting Supreme Court justice, many of whom declined to say the whole thing and just refer to her as General Prelogger. Oh, well, moving on. I thought she had... No, I'm with you, Sarah, but I'm with you for less precise reasons. Oh. Yeah, because you have this whole thing about the general is the adjective. It is the adjective, yeah.

Yeah, I know. That's exactly right. You're correct. I just have this issue with honorifics in general. And when the term general feels to me should be applied to generals and that it feels like, um, you know, you don't want to say stolen valor in the sense that, you know, she didn't steal it. She didn't ask to be called that. You know, it just has, it just, I'm in the camp, you're in the camp of that's an adjective.

I'm in the camp of, it just the camp of that's an adjective. I'm in the camp of it just feels funny. Okay. Yeah. Fair enough. Yeah. Anyway. Regardless, she had, I thought, pretty good arguments on this front, at least substantive arguments. A, David, as you said, we can't do it anyway.

hey, David, as you said, we can't do it anyway. There is simply not the money to take into custody every alien who has committed these crimes, which if you're hearing this and that is upsetting to you, like, yep, that's how the cookie's crumbling right now. To which the chief justice had a philosophical question in response. What is the role of the court? Are we supposed to take into account the reality of appropriations? Or is our job to say what the law is, not what amount of the law can be enforced? And she pushed back on that by saying, And she pushed back on that by saying, well, actually, you take into account how much Congress appropriated in determining what they meant by shall.

You know what I mean by that? So like if they said shall, but in no way ever meant that you could do all of it, then clearly they didn't mean shall. They meant something else. And that should go into the interpretation of what the law means in and of itself. To which the chief was like, yeah, no. What if I think shall means shall, but I agree with you that it also is an impossibility of enforcement. Then what do I do? What is the role of the court? Knowing what the answer to that obviously was, the Solicitor General declined to give a specific answer to that obviously was, the Solicitor General declined to give a specific answer to that question. Because obviously the role of the court

is to say what the law is. And so they can say, the Biden administration is in violation of the law. Here you go. Here's your piece of paper, Texas and others. But what's it going to do you if there's no money appropriated to actually do a full shall enforcement? Um, her other arguments though, were also that

somewhat technical over, uh, the, when an alien is ordered removed, the attorney general shall remove the alien within a period of 90 days. Um, and that the attorney general shall remove the alien within a period of 90 days. And that the attorney general shall detain an alien with a final order of removal during that removal period. They are also not doing that. And in that case, again, a very technical argument in some ways, but she was saying what that's talking about is after we've chosen to prosecute someone, then it's talking about detaining that person. But it is not determining who we prosecute in the first place, which is what Texas was asking for. I think they actually might have a pretty good argument on that one since it does. I mean, again, I'll read the statutory language. mean again i'll read the statutory language when an alien is ordered removed the attorney general shall remove the alien from the united states within a period of 90 days the attorney general

shall detain an alien with a finer final order of removal during the removal period this has turned into such a an overall immigration enforcement problem, David, frankly, on both sides, because states also are refusing to detain illegal aliens who are being held in state facilities after state prosecution and conviction when the feds want to come pick them up in order to remove them. And at the same time, obviously, the feds aren't picking everyone up, aren't detaining them, aren't removing them. And, you know, the federal government to some extent saying, look, and this goes to the standing question, interestingly, because Texas's argument, of course, is that they're having to pay money here in various ways. One of which is there are therefore more illegal aliens in the state of Texas because of

the Biden administration's enforcement decisions. And the solicitor general's argument is that's impossible for you to prove because if we've only got, you know, bucket of money this, and we're saying we want to prioritize the people out of that list, the moral turpitude, drug offenses, aggregated felonies, sex trafficking. We just are going to use our discretion to determine who are the most dangerous. You haven't proven that because we prioritize person A, that we otherwise would have been able

to pick up person A and B. You know, you said we should have picked up person B. We're saying we're going to pick up person A. The only way you have standing in an injury is if we otherwise would have picked up A and B. That's interesting to me, David, because the Biden administration is saying they're going to use a totality of circumstances, basically.

Right. Which on the one hand, to the extent they are simply prioritizing person A over person B, then I totally agree with her argument. But it's not quite what the totality of circumstances memorandum really read like. It read more like, hey, when you're picking up this person and sure they meet the statutory definition of someone you should put into removal proceedings, think about whether, you know, just think about it. Think about whether this person actually poses a real threat

and you combine that with the overall sense of immigration enforcement in different administrations and you can see where Texas is like, you've got to be kidding me. I understand that there is not enough money to remove everyone, but that's not what's happening here. And that's not what a totality of circumstances analysis is doing. They didn't simply take all of the list of these crimes, you know, moral turpitude, aggravated felonies,

sex trafficking, human trafficking, and put them in order. They actually said some of these aren't going to count at all. You know, you've picked someone up, they do have drug offenses, but don't worry too much about that. If under the totality of circumstances, you can imagine someone who might be worse. Right. So I think that you combine this, of course, David, with the other immigration cases that the Supreme Court has had, including,

don't forget Biden versus Texas on the migrant protection protocols. I mean, the chief justice on that standing question was like, aren't you ignoring the case that we decided four months ago? Which Solicitor General Prelogger is like, I mean, not ignoring, but we didn't really make standing a big deal in that case. And we't really make standing a big deal in that case. If we want to make it a big deal in this case, because we've gone back and thought about it, frankly, we think it's a pretty good argument.

So you have a case from four months ago in which states had standing. You had, you certainly had the justices interested in this question and wanting to, I think, say something about it. Um, but I think overall, David, for me, the question that got the least amount of argument time, the least amount of attention, but keeps getting punted and they've got to address it at some point is that nationwide injunction. What is the remedy when you can go shopping to all of these judges throughout the country?

99 can say you're wrong, but if one says you're right, that you win. It is a big problem. And despite the DC Circuit love fest from, as you said, a nice little ideological melange of justices, Jackson, Kavanaugh, and Roberts, Gorsuch came out pretty hard looking at what that language is

that it's not in the remedy section of the APA, which is the best argument against this being that set aside means set aside. Well, does it mean set aside if it wasn't ever meant to be a remedy in the first place? And how do you deal with these nationwide injunctions don't need to be nationwide sometimes and other times it's hard to imagine how they could not be nationwide. Do you really need to go sue in every single jurisdiction? There was at least a hint that perhaps they would ask for

additional briefing on that question after argument, which is incredibly rare. But Amy Howe over at SCOTUS Blog thought there was a chance this time. So yeah, the remedy issue, there's so many aspects of this case that are fascinating, but I want to zero in on Justice Kagan comment on standing because it relates to the merits, I think. So she says, we're just going to be in a situation where every administration is confronted by suits by states that can, you know, bring a policy to a dead halt, to a dead stop just by showing a dollar's worth of costs. What's this going to be in a situation, Justice Kagan? That is the situation.

And it's been the situation going back to the Obama administration. Nationwide injunctions first really sort of caught on in the Obama administration. I'm not saying that those were the first ever. I actually don't know when we had our sort of first ever district court. In the 70s. 70s. Late 70s. Late 70s. But during the Obama administration, it became a far, it became a tactic, absolutely a tactic in the Trump administration, now absolutely a tactic in the Biden administration.

in the Biden administration. And I think part of it is that the system is evolving and learning how to adapt to excesses of executive power. So as Congress, I think there is no coincidence that this is happening just as Congress is becoming less effective. So what you're then dealing with is a series of issues where presidents are just going ahead and acting either because they can't get what they want through Congress or because, in this case, Congress just hasn't enacted anything and funded anything coherent. And this is a symptom, an inevitable symptom of a political system struggling to adapt to the fading of what is supposed to be its most important branch. And she says immigration, again, going on, this is still Justice Kagan, immigration policy is supposed to be the zenith of federal power and it's supposed to be the zenith of executive power. And that's where I'm going to part ways with Justice Kagan. It's not just supposed to be that it's not supposed to be the zenith of executive power.

This is core congressional competency here. This is absolute core as to what Congress is supposed to do. And she says, and instead we're creating a system where a combination of states and courts can bring immigration policy to a halt. No, it's not the we as in the we, the judiciary. It's a different we, or it's a they, as they as in Congress. And so really the root of so many of these court cases that we are, that we evaluated always comes

back to the same root. And that is, there is an inability, there's a paralysis, there's a calcification in Congress. And then that means the executive is going to be tempted to grab more power. And every time the executive is going to be tempted to grab more power, they're going to headlong into constitutional limitations on that power. So this is the reality unless and until Congress really sort of starts to get into shape. And I know this is a legal podcast, but I just wanted to ask your political opinion on something, Sarah. This Sinema-Tillis compromise,

which is broad outlines the kind of immigration compromise people have been reaching for forever, which is relief for, say, 2 million or so dreamers in exchange for increased border security. Total pipe dream that that happens. No way that happens. Or is anyone ever going to wake up to what we're dealing with? Mixed feelings on that. So the time when it is only possible, most possible, is in this lame duck period, basically because you're furthest away from

the next election cycle. And you have at least a few members who can YOLO it because they're not coming back, particularly in the Senate and particularly right now on the Republican side. This will not be the case. I think after 2024, you're not going to have a lot of retirements, I think on the Republican side. But you do right now. That being said, there's a reason it hasn't happened to date. The political pressure is enormous. And it goes without saying, I assume that when Republicans take the house, this simply will not, it'll be dead on arrival in the house. And so you've got two weeks, less than two weeks. I can't really count very well, but I mean, hours on the clock. So

I don't think so because even think about some of these things have gotten really far along and been derailed at the very end. This isn't even that far along, unfortunately. So I think that's a no. Can I bring up another standing point, which is, so on the one hand, the Supreme Court has said that states have a special solicitude when it comes to standing. And as Justice Alito has pointed out, that special solicitude seems to be unevenly applied. He's making an ideological point. I will just make a, it's unevenly applied point. And the result is this mess of when states actually have standing. So the Solicitor General said she would define special solicitude not on making it easier,

as in their injury needs to be less than a private party or even equal to a private party. Actually, she's mentioning that the special solicitude is about sort of sovereign interests. You know, for instance, your coastline, that's an interest that an individual may not have, but that a state would because it is a state sovereign with this special interest. A clever argument, an interesting argument. The problem is she then had to make the argument that states don't even have the same injury rules

as an individual, that sort of dollar injury, if you will. That ran into kind of an Alito-sized buzzsaw. But here was the part that was interesting to me with Justice Kavanaugh. Justice Kavanaugh, on standing, if a new administration comes in and says, we're not going to enforce environmental laws, we're not going to enforce the labor laws, your position, I believe, is no state and no individual and no business would have standing to challenge a decision to as a blanket matter just not enforcing those laws correct solicitor general pre-logger that's correct under this court's precedent but the framers intended political checks

in that circumstance I actually want to point out that again and this is I get it it's me And lawyers spend a lot of time in these moots trying not to concede things at all in these arguments I disagree. I think concessions like this that show the logical extension of your argument are important and actually helpful because they build your credibility And allow you to get out your answer because if you keep challenging the hypo and giving unrealistic answers, you get caught in this justice back and forth that isn't very helpful. The justices get exasperated and you never actually get to defend the logical ends of your argument. So I thought that was actually brilliant and I know others will disagree, but let me read you then what she got to get out. If an administration did something that extreme and said, we're just not going to enforce the law at all, then the president would be held to account by voters, and Congress has tools at its disposal as well.

Justice Kavanaugh, what are those tools? You mentioned earlier this would be extraordinary, but I think Congress in 1996 and today, mentioned earlier, this would be extraordinary. But I think Congress in 1996 and today, that's this change to the INA because it used to be discretionary under the INA and Congress actually put in that shall language in 1996, presumably so that it wouldn't be up to an administration's discretion, that Congress in 1996 thought the immigration problem in the United States was extraordinary and the lack of enforcement to the degree that Congress as of 1996 wanted. And that's why they toughen the laws and constrain the executive's discretion. And so if courts aren't going to be able to enforce those congressional mandates, what are the exact tools that Congress has

to make sure that the laws are enforced? Prelogger, I think Congress obviously has the power of the purse. It can make the executive's life difficult with respect to its decisions about how to appropriate funds. They have oversight powers. I found that very interesting. A, of course, your point, David. Yep. Appropriate a fund. They could appropriate a lot more funds, first of all. But at the end of the day, you know, Justice

Kavanaugh pushes back and is like, you're saying that basically they need to impeach the president over this. Those are incredibly extreme, you know, zero out funding for DHS because that actually does the opposite. Assume the administration doesn't want to enforce the environmental laws. So you zero out funding, that's your power of the purse. What happens when you funded it? They're not enforcing it. What is your power of the purse then? And in the most extreme case, of course, it's like defund things they do care about and tie it to those environmental laws. I mean, that gets very messy from this very practical stance. And so you see in some ways the difference between the Chief Justice and Kavanaugh. The Chief Justice saying, maybe this doesn't matter

because our job is to say what shall means, regardless of sort of the practicalities. And Justice Kavanaugh saying, yeah, but what about those practicalities? How would this work if an administration just declined to enforce an entire section of laws that it just didn't think mattered? So to the extent they actually resolved the standing question, which is what the majority of this argument was about. It was like it went in order of the QPs standing, got the vast majority, the actual legality of the administration's discretionary memo, got a little argument. And then that nationwide injunction got very short shrift, mostly from those DC circuit justices being like, you're kidding. Right. And, uh, justice Gorsuch going, you're not kidding.

Right. Here come the carrots making their way up field followed by the whole wheat bread over to And Justice Gorsuch going, you're not kidding, right? Here come the carrots making their way upfield, followed by the whole wheat bread over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots it over the line. What a goal. How would you like to pay, sir? Credit, please. Make every purchase a win with the bmo

toronto fc cashback mastercard with up to five percent cash back on your purchases in your first three months terms and conditions apply one fast thing before we move on and i had i had not noticed this until the New York Times pointed out the Sixth Circuit decided a separate, but as the Supreme Court says, nearly identical case brought by multiple additional other states, Arizona, Montana, Ohio. So a unanimous three-judge panel refused to block the Biden guidelines. Unanimous three-judge panel. Why would that be interesting at all? Well, the person writing for the majority was friend of the pod, Judge Jeffrey Sutton, Scalia clerk, chief judge of the Sixth Circuit. And he basically agreed that there is a broad national government, that the federal law gives national government considerable authority over immigration policy.

Interesting to see this from, again, Scalia clerk, chief judge, Sixth Circuit, friend of the pod. I don't know. Is that an interesting sign that you think the Supreme Court could go the same way if it persuaded Jeffrey Sutton? Just a thought. Just a thought, Sarah. in Texas issued the nationwide injunction against the enforcement of this discretion memo. The Fifth Circuit upheld that nationwide injunction. That's what then went up to the Supreme Court. By four, the Supreme Court declined to change that. And if you're wondering who that fourth vote was, so obviously Kagan, Sotomayor, Jackson, it was actually her very first vote as a Supreme Court justice.

And the fourth vote was Amy Coney Barrett. Which you got to look at the other side of that. That means there were five votes to keep this injunction in place heading into the argument, A. B, you look back at that migrant protection protocol case, David, that we said was just argued four months ago. And in that case, you really do have the administration in sort of its zenith of power on foreign policy, on immigration enforcement. And we had a lot of discussion in that argument, if you remember, of sort of the absurdity, if you allowed states to dictate that sort of discretionary level of immigration enforcement. Remember, there were the three

different categories and they were like, we're choosing these two. We're not going to choose this one. Here though, you have such clear, not just statutory language, you have Congress amending the statute to take away that discretion. That's why I think this case is more interesting and why it's coming on the heels of that MPP case. I do find Justice Sutton's opinion important. It comes up in the oral argument a couple times by, of course, Solicitor General Prelogger. But I don't think you take this case four months later on the heels of the MPP decision unless you want to make a distinction of some kind. Now, they took three questions, so the distinction could lie elsewhere. Yeah. But it is quite different. And there's a much stronger case for Texas here

than there was in the MPP statutory framework, if you will, I think. And the practical implications, frankly, are quite different. Like the Chief Justice said, we can find that shall means shall. If Congress doesn't appropriate the money, is what it is.

But us trying to interpret the law to make it fit the reality is perverse, is a perverse role for this court. Well, one thing I feel pretty confident about, Judge Sutton is winning the award of most citations to the Supreme Court this term so far. Oh my gosh. I mean, this term so far, yes. But this month, he's in every single argument. It's amazing. It's amazing. So I want to mention this Fifth Circuit case quickly because it is even the stronger version

of what we're talking about. So if MPP is, there's not the appropriated money, so it's an impossibility and the statutory language is at least mealy then you have this case there's still no appropriated money but the statutory language is stark then you have this fifth circuit argument that happened last week where the statutory language is pretty stark and they appropriated the money for it. And this is the border wall. So during the end of the Trump administration, Congress appropriated $2 billion to build a barrier on the Southwest border. However, when Biden gets into office,

he calls it a waste of money and said, building a massive wall that spans the entire Southern border is not a serious policy solution. And he diverts the money to, for instance, lighting, roads to get to the border, and cameras at various border sectors and says that that is its own barrier is one part of the argument. And the second part of the argument is, even if you had a barrier, you would need cameras and lighting and roads to get to it. And so

the appropriated money is still going to the overall gist. Um, the problem of course, is that at one point in the actual language, it specifically says a steel baller design. So like hard, hard to get around that at some points. Um, so that's making its way up the fifth circuit argument. Well, well, David, it got some attention for some other reasons. First of all, and I, this is not a joke. One judge Edith H. Jones, who I clerked for, it's worth mentioning, spoke for basically all of the 40-minute hearing. And Judges Jerry Smith and Judge Graves, who were also on the panel, each spoke for no more than 30 seconds. And if we thought that Justice Alito was the spicy justice on the Supreme Court, Judge Jones.

I mean, it was it was ghost pepper time in that Fifth Circuit argument, David. Real ghost peppers. What? So at one point. Ghost pepper? What is? Yeah, they're like really, really spicy. How do you not know this?

Oh, OK. I did not know okay what it goes i mean there's you know jalapenos and serranos that are like sort of spicy hatch peppers not spicy and then ghost peppers they have a pepper scale david okay i yeah so we can look up the numbers for all this, but ghost peppers score very high on that pepper heat scale. So I'll just read you a couple of the quotes. So the advocate from the Department of Justice says, I want to be very clear, that's not the case,

meaning that they're doing nothing meaningful at the border, is what he's responding to. Under the plan, DHS is constructing force multipliers to make existing barriers work better. They're building cameras and lighting systems. Judge Jones interrupting. You know what? That is so absurd. The facts on the ground are at least three million people have served through the border in the last year and three quarters with no end in sight. So I don't care what force multipliers. They haven't stopped fentanyl. They haven't stopped illegals. Your honor, the government interrupts. Judge Jones continuing. So how can you argue with a straight face that alternatives to a barrier

have been implemented that fulfill the directives of Congress in 20 and 2021? She continues at a later point. It turns on whether borders are enforced or not. It turns on whether the immigration policy has any teeth. And obviously, the implication throughout the world is that the United States no longer has borders. At one point, she says, so what explains the fact that there was something like only 9,000 a month apprehended at the border? I may be slightly off on that statistic at the end of the last administration as compared to the numbers now. It was a rough argument for the government, David.

Now, my question, Sarah, is, so here we have Edith Jones, female judge, absolutely dominating oral argument. Where are the headlines on like Jezebel going like, yes, queen, fifth circuit judge makes up for years of mansplaining. Do you know what's so funny, David, that you mentioned that? So there was a academic paper looking at interruptions at the Supreme Court level that found that the female justices were getting interrupted more frequently than the male justices. And I cannot get it out of my head every time I listen to these oral

arguments. And the thing that I can't get out of my head is I'm very, I want to go back and look at their coding for interruptions because I'm like, well, that shouldn't count as an interruption. And there's all these moments where I'm like, that wasn't an interruption. Like, for instance, the justices speak in seniority level. And so if two justices speak at once or a junior justice tries to interrupt a more senior justice, the more senior justice gets to ask their question. And at the time that this paper was done, Justice Ginsburg was a senior justice. And it was found actually that she wasn't interrupted very often. And Justice Kagan, Justice Kagan and Sotomayor were junior justices.

And so in those like simultaneous moments, they're going to lose the interruption war. But even now, I mean, my goodness, if you look at which justice is also doing the most interrupting of advocates, surely Justice Mayor gets a Yas Queen Award as well. Oh my gosh, yeah. Yeah, she's not having it.

Yeah. To me, it would be so hard to quantify that sort of thing. And I find it deeply annoying that this academic paper tried to quantify something that, again, with me listening to the argument, I'm like, how would you possibly quantify that one? There are some times, but the only ones that I think would count in my book, if I were to go back and quantify this is an advocate interrupting a justice. You can't do justice to justice because there's all sorts of things involved. And you saw this weird interaction,

this term. Oh, and now I'm going gonna forget which two justices but basically the two justices speak at once a female justice and a male justice and the male justice says go ahead and the female justice is like no you go ahead and the male justice is like no really you go ahead and the female justice is like no you i think this was corsage and soda mayor i think i think it was too that was who i thought it was but I didn't want to guess. But if you agree, if that's your memory as well. And I couldn't help but wonder,

is Justice Gorsuch trying not to get tagged in this quantifiable interruption game? And then does it count that he wins the interruption game when she insists on him going first? That's the one that really stuck out to me of like, how do you quantify something like that? How does it get tagged in your data?

Yeah, you know, and the thing is about that study, look, I have not done my own study, but I will say this, compared to virtually every other branch of government, one thing that stands out when you're listening to Supreme Court oral arguments, especially as compared to reading them, you're winning me over, Sarah, to listen instead of read. You really are because you pick up on a lot more, quite frankly.

And the, what's really stands out- There's a joie de vivre in the oral arguments. Yes, there is. That you miss in the transcript. There is. And I promise you, listeners, if you've got, look, do not take one second away from listening to advisory opinions to listen to Supreme Court oral arguments. I'm just, we'll just put that out there. But if you want to hear the government function in the way that, pretty close to what you would think this is the way this is how this

should be done this is how discussion should be conducted listening to these oral arguments I think is really important and there's a few things you pick up I mean Justice Gorsuch for one has this he has a way of speaking in which the the word that comes to mind is he's a gentleman. That he has kind of a softer tone of voice, even when he's being stern, it's stern in a kind of a gentlemanly way. And he's extremely courteous. And you could see that back and forth. And Sotomayor, who can be quite aggressive towards advocates, was extremely courteous back to Justice Gorsuch.

There was this back and forth there that was both of them being extremely courteous towards each other, sort of in the way that old friends are courteous to each other. No, you go ahead. No, you go ahead, was the dynamic. And I find it, I actually got a message from an AO listener who is a writer and was talking about how some of these arguments are good civics lessons for how to do disagreement, civilly, profound disagreement. And the Morvey-Harper case, I thought, was exhibit A of that because you talk about high stakes to that case. I mean, this is a case with very, very high stakes constitutionally. And yet it was an absolute model of civil and professional discourse.

And nobody was giving one inch on their position Yet it was an absolute model of civil and professional discourse. And nobody was giving one inch on their position by having some civility and dignity in the argument. And I think that's a really important point to make. There seems to be this perception out there that if you have civility and dignity in your argument, you're giving up something. And that was not the case at all. So you've won me over, Sarah. I was a read the argument kind of dude. Now I'm a listen to the argument in part because you pick up on

more and in part because doggone it, I need encouragement about our government. And this is, it's listening to something function is actually encouraging. It is a treat. Well, let's leave immigration for a bit. There's going to be plenty more, I think, during the Biden administration, but even just this term as well, that the circuit case will move its way up. We'll have a decision in this removal case at some point. So put a pin in all of that. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver at some point. So put a pin in all of that. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family

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I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. David, you had two more interesting cases worth a quick mention. Yes. Quick mention. Number one is Eighth Circuit Court of Appeals case came out on December 9th,

so just a few days ago. And this was a case, Religious Sisters of Mercy, Sacred Heart Mercy Health Care Center versus Becerra. So it's against the United States and it's religious hospitals, Catholic hospitals, challenging Biden guidelines that arguably could have required them to do gender affirming treatments. In other words, to undertake medical treatments designed to affirm gender of transgender individuals. It could be surgical, etc. And the Catholic hospitals have a conscientious objection to this. is not because the case was particularly notable in the sense that breaking any real ground in the finding the Eighth Circuit and joined the Biden administration actions, which arguably could have required religious hospitals to engage in gender affirming care. That and this was under the Religious Freedom Restoration Act. And the reason why I wanted to highlight this is because it's related to a previous discussion that we had about the Respect for Marriage Act. So it was the Religious Freedom Restoration Act provided the basis for an injunction. a violation of your rights under the Religious Freedom Restoration Act is an irreparable harm in the same way that the violation of your rights under the First Amendment is an irreparable harm.

And so therefore, an injunction was entered. And that was all quite predictable. Now, what's interesting is a number of people, when they looked at the Respect for Marriage Act, when it was passed last week, and it's headed to Biden's desk for signature, they were saying that the Respect for Marriage Act really doesn't do much for religious liberty, even though the Respect for Marriage Act reaffirmed the applicability of the Religious Freedom Restoration Act. And so what I wanted, the reason why I wanted to highlight this is to say that even if all the Respect for Marriage Act did

was absolutely leave untouched the Religious Freedom Restoration Act, it would have meant, and definitely would have meant, strong religious liberty protections under federal law for collisions when religious freedom rights collide with, in this example, efforts to end anti-LGBT discrimination or what was perceived to be anti-LGBT discrimination. And so the Religious Freedom Restoration Act is a very potent tool for religious liberty. It remains intact. It remains intact through the Respect for Marriage Act. And one of the things that I think is really important is to demonstrate once again the strength of religious liberty protections that exist not just under federal constitutional law,

but federal law more broadly under the Religious Freedom Restoration Act. And I'm hoping, Sarah, that as precedent after precedent after precedent is set, that we're going to see a cooling of this corner of the culture wars because it's going to be harder to bring cases challenging religious liberty as the wall of precedent gets higher and higher. Which is not to say people may not try, but that wall of precedent is being built brick by brick, higher and higher, protecting religious institutions' autonomy. And I just think it's worth noting that this happened again at the Eighth Circuit. It's worth noting it was under the Religious Freedom Restoration Act. It's worth noting

that was completely untouched by the Respect for Marriage Act. End sidebar. Can I tell you what I found most interesting about this case? Yes. Biden administration wasn't litigating this on the merits. They're not going to appeal this to the Supreme Court. They're not going to try to go on bonk with it. To the extent they were fighting it, they were fighting over whether these people could get into court in the first place

because no one's enforcing this against them. Yep. It's like a little like the 303 creative standing problem or ripeness problem, rather, but almost more so. Now, they did make an unfortunate statement during the hearing, something to the effect that the Biden administration objected that the plaintiffs couldn't prove that Section 1557 would be enforced against them because they hadn't had the opportunity to try yet. Wait, what? What? Um, the, uh, one of the judges responded, uh, a concession that they might do so. Okay. Yeah. Fair enough. I guess that is a low bar to overcome ripeness. But if that's what the whole fight was about,

I think it bolsters your point, David. This wasn't even really on the merits. Right. Nobody was trying to enforce this because it was clearly such a legal loser. Yeah. And no one's going, you know, going to appeal this. So this is the end of the line

for this transgender surgery at hospitals, that religious hospitals case. Yeah. And I think it's important to point these things out because there is this persistent narrative that religious liberty is teetering on the brink. And I just, at some point you just start to say, where, where's this coming from? Yes, you do, David. Well, I know where it's coming from. It's coming from a lot of fundraising letters. It's coming from a lot of political campaigns. We're one election away from the end of religious freedom

in the United States. No, no, no, no, no. It is a matter of, as a matter of law, religious freedom is incredibly robustly protected and it would do a great deal of good in our political, in our body politic and in our culture, if people could absorb that reality and stop believing that the very existence of religious freedom in the United States is hanging in the balance with any given election or even any given court case.

You know, at some point when you look back and you look at, I was in some planning meetings all the way back in 06, Sarah, although 06 doesn't feel that long ago when you're 53. Like I was fully adult in 06. But in planning meetings at 06, we were charting out all of the religious liberty objectives we were trying to meet, trying to secure specific rights unequivocally before the Supreme Court. And I don't think there is a single one of those rights that hasn't been secured.

And so at some point, can we say, not to relax vigilance in their protection of liberty, but at some point, can we stop panicking is the question that I have. So that's digression number one. Well, let's do the Fourth Circuit. Yes. So digression number one. Well, let's do the Fourth Circuit. Yes. So digression number two, and again, this is a relatively brief discussion,

but I think it's interesting. And this is a case brought challenging Loudoun County schools. Now, people who've listened to advisory opinions will know that we've talked about Loudoun County a few times, Loudoun County, Virginia. We had on the program a friend of the pod who has been doing quite a bit of work, activism work in Loudoun County. a lawsuit brought over what were called student equity ambassadors and these student equity ambassadors. And the reason why I'm bringing this up was these were, it was a program created as an anti-bias initiative,

a program created after there were some findings, for example, that there was discrimination, racial discrimination, racial slurs, racially motivated violent actions in Loudoun County schools. And so the school system created a program for student equity ambassadors. Initially, it appeared that these student equity ambassadors were going to be one race or were going to be students of color only. They did not do that. It's open to students of any race and have included white students, for example. And there was a Fourth Circuit argument over the existence of these student equity ambassadors in front of a conservative panel, three Republican nominated appellate court judges. And it looks like though the, it looks like from the argument that the plaintiffs

are in real trouble here in their efforts to strike down the student equity ambassador plan. And the reason why I think is, is going to be, is interesting and instructive in these controversies. The reason why they were going to have some trouble with the exception being that there was some openness to the idea that the way the plan was implemented might have some free speech implications. But the reason why this is going to be interesting is in the absence of explicit racial discrimination. of explicit racial discrimination. In other words, where the program is only open to people of a specific race or not open to white students and open to every other race. In the absence of that, it looks like with these three conservative judges, you're just not going to be able to get anywhere by saying, I don't like the thrust of the program. I don't like the objective of the program. I don't, that if you just disagree with the program,

then you're not going to get anywhere. And that seemed to be part of the thrust of this, because the judges were recognizing that if there is a finding of racial discrimination, is recognizing that if there is a finding of racial discrimination, there's going to be some need for some kind of race conscious response to racial discrimination. And if the race conscious response is not discrimination itself, in other words, only students of color eligible to be equity ambassadors, then the fact that response to race discrimination is race conscious is not by itself going to be a violation of federal law. We'll wait for the opinion, but I thought that was interesting, Sarah. Where to start? I don't like this program. So I fall into that category. Right. Now, I don't know a ton about

the program. I went and read several things. I read a memo on it. I'm not saying I'm an expert on this program, but based on what I've read, I don't think this is a good program. I don't think it's a helpful program for what they're trying to do. And I think it will have the effect of sort of putting a speech thumb on the speech, on the discussion scale, the Overton window of what you're welcome to talk about at these schools. And I don't like that. And that's the part that it seemed like the court was most open to hearing about. Yep. And it looks like because this is brought in sort of this quasi-pre-enforcement way, the students who the parents are suing on behalf of never applied to be these ambassadors.

They don't have any examples of their speech actually being chilled. It was sort of an obviously their speech is being chilled argument. I hear you. It does feel obvious, but that's not how we run this railroad. So certainly it would have been much, much stronger case if they had either been denied an ambassadorship because of their race, which there are now white ambassadors. They changed the program. By the way, the fact that originally there weren't going to be allowed any white ambassadors tells you how stupid this idea is to begin with. Right. That then they're like, oh, right, law. Okay, we'll add white ambassadors. But these white ambassadors are going to show a commitment to social justice. I mean, the whole thing seems poorly conceived. And I don't doubt that they will run afoul of some First Amendment stuff

if allowed to sort of proceed at pace because they seem to have no conception um of of the other side of what they're doing okay that being said i think they lose right now that being said about my that being said i did not like um what uh judge niemeyer said right i think that justice roberts the way to stop discrimination on the basis of race is to stop discriminating on the basis of race can very much be applied here there and everywhere um where you find racial discrimination the best way to end it is to create policies that prevent the racial discrimination in a way that does not then discriminate on the basis of race. So in this case, I mean, take these ambassadors, for instance, it was like, well, the racial discrimination is happening against people of color. So we're going

to create these ambassadors and they have to be people of color. Even the school backed away from that. And I feel like under Judge Niemeyer's sort of his broadest iteration of this is like, well, you'd have to have a race conscious remedy. So maybe it is ambassadors of color pointing out racial discrimination. No, the best way to stop this is by having students from across the spectrum at the school, the ideological spectrum, the racial spectrum, the religious spectrum, all of that. Fine, pick some ambassadors so that they can come together and talk about the culture at their school,

what they like, what they don't like, what, fine, what things they've overheard being said that made them or their fellow students feel uncomfortable. And then let those students who maybe represent a different perspective speak up and say, I think that was misinterpreted or here's why, even though that made you feel uncomfortable, I think it was important to have that said. That's what Justice Roberts is talking about. Right. And that I think is the way forward. And now I just want to insert also everything I've said about the affirmative action oral argument and why it's so hard to create that in practice.

We hereby incorporate. But frankly, in Loudoun County, yeah, I incorporate everything I've previously said on this. But I just want to say that Loudoun County schools doesn't seem to have nearly the nuance and care that Harvard or North Carolina have in their admissions policies. Loudon is like a drunk toddler with a hammer, man. Just like, actually, I will say a toddler with a golf club, because I've experienced that recently. Oh, gosh. Just hitting things indiscriminately.

Sometimes it's a ball and sometimes that ball moves forward, but I assure you it's on accident. Sometimes it hits me in the head. The golf club has been taken away. However, it has been asked for many times because it's fun to sometimes hit the ball forward. And he doesn't seem to care so much about the collateral consequences of occasionally knocking his caregiver unconscious. Well, you know, Loudoun County was recently back in the news because of grand jury findings of inadequate response to sexual assault in the school. So Loudoun County has got some problems. I was flagging this. One of the richest school districts in the country.

Right. Right. I was flagging this because we're, since Loudoun County, I can't believe they did this initially, but when you initially create a program and say it's only for students of color, I mean, that's going to be illegal. That is going to be illegal. But we're already into, I feel like we're getting into the next phase of the arguments, which is when a program is not explicitly racially discriminatory, what are the limits of race consciousness? And that's going to be the Thomas Jefferson. Now, the interesting thing about Thomas Jefferson was, was this actually just raw racial discrimination in disguise? Which is a, that is, you know, in many ways, a different shading on the issue. But I feel like,

Sarah, that's where we're going to be post Harvard, post UNC, is there's going to be a pretty darn clear signal sent by the Supreme Court. Again, opinions are not out yet, could be surprised on this, but what you're going to see is a pretty darn clear signal from the Supreme Court that anything that is explicitly racially discriminatory is going to just start to be knocked out one after the other. But what about race conscious versus racially discriminatory? What are the limits there? And that's going to be the next frontier. All right, two things before we go. One, David, I had you on the book club,

the Dispatch Book Club. It's for dispatch members. And we talked about the Anthropocene Reviewed, a sort of light, humorous at times, touching book by John Green, poignant at moments. So thank you for joining that episode is about to come out. So if you want to listen to it, become a member of the dispatch, the dispatch.com just join. You can hop in the AO comment sections and you'll be able to join the book club as well.

We're going to do some, uh, you know, some history next. I'll just say that dive into the history. Number two, David, I just wanted to fill you in on the Scoville heat test named after American pharmacist Wilbur Scoville, his 1912 method, the Scoville organoleptic test. It's a subjective assessment derived from the capsaicinoid sensitivity by people experienced with eating hot chilies. And so I wanted to read you a little nugget of where that falls. So on the Scoville test, David, bell pepper, it's at zero. Pepperoncini, it's like a 500.

Anaheim, 2,500. Poblano, 1,500. Jalapeno, 8,000. Serrano, 23,000. Cayenne, 50,000. Scotch bonnet, 350,000. Habanero, also 350,000. Ghost pepper, 1 million.

Whoa. But it is not the spiciest i will reserve carolina reaper status 2.2 million on the scoville test and again i just want to compare that to a jalapeno that's at roughly 8 000 8 000 for a jalapeno 2.2 million for for the Carolina Reaper. We have not yet awarded our Carolina Reaper status. Carolina Reaper. I got to say the name is fantastic because- Good name, yeah. Because I think the Reaper would come for me if I had that pepper. I do love heat and I love spicy food, but yeah, I have no need to not be able to feel my mouth or taste the food. The spice is supposed to enhance the flavor, not detract from my ability to breathe. Yeah, no, that would be life-threatening level of pepper consumption there, or at least gastrointestinal threat, threat to pepper consumption. I didn't even

know that scale exists. That tells you how much of a foodie I am. So I had no idea, no idea what a ghost pepper was. So anyway, that's good. That's good information, Sarah. I appreciate it. You're welcome. That's what we try to do on this podcast. We teach, but we also teach one another. Exactly. Absolutely. So if you enjoyed this podcast, which was a quite good podcast, if I don't say so myself, if you enjoyed this very good podcast, please go rate us at Apple Podcasts. Please go subscribe at Apple, or I should say anywhere you get your podcasts. We're seeing a lot of really neat end of year Spotify lists that are popping up on Twitter.

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