Advisory Opinions - Into the Labyrinth (of Texas Immigration Law)

Episode Date: March 21, 2024

Sarah and David dive into the battle (one that at times stumps our resident SCOTUS wonks) between the 5th Circuit and the Supreme Court on Texas’ deportation legislation. The Agenda: —Texas’ SB4, explained —Important legal glossary —The issue with administrative stays —Why the delay at the Fifth Circuit? —Opinion in chambers from Justice Roberts —FBI No-Fly List Case —First Amendment and Government Coercion —NRA free speech battle —Listener feedback Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger with special guest David French. And guess what? We had a scheduling snafu with the judges. That's going to wait. But also, thank goodness, because there is so much to talk about today. First up, you may have heard of Texas's SB4 law. This would allow the state of Texas, among some other things, but basically to arrest

illegal aliens in the state and deport them potentially without regard to any concurrent asylum proceedings that may be going on in federal court. If that sounds strange to you, indeed, it may well. But there's been some weird procedural stuff going on. And honestly, before we tape this podcast, you had to check back in every hour to see where things stood. I will try to walk you through it. Okay, so now we know what SB4 is about. Now let's talk about the litigation around SB4. And remember, Texas is going to pass this law and then immediately it's going to go to court.

Now, before we do that, let's do a glossary of terms. Injunctions. That's when a district court enjoins the government, usually the government in this case, from doing something. It stops the government from acting. Then there's something called an administrative stay. That's when the circuit court

first gets something or the Supreme Court, any appellate court, and says, okay, just everyone stop what they're doing while we even look at this. Then there's something called a stay pending appeal.

Now that's going to keep things in place. And whatever the status quo is, whatever they define the status quo is based on the factors that they look at for stays pending appeal, keep the status quo in place until the merits are resolved. So injunction, administrative stay, stay pending appeal. You don't really have to keep them straight, but this is about to get complicated. Okay, now that we've defined our terms, let's talk about what happened in this case. So first, the district court is going to issue an injunction stopping the law from going into effect. Then the circuit court is going to issue an administrative stay, allowing the law to go into effect. Then Justice Alito is going to issue an administrative stay of the administrative stay, allowing the law to go into effect. Then Justice Alito is going to issue

an administrative stay of the administrative stay, stopping the law from going into effect. Then the whole Supreme Court is going to stop the administrative stay of the administrative stay, allowing the law to go into effect. And then the Fifth Circuit is going to issue a stay pending appeal stopping the law from going into effect. And that's where we are right now. And in fact, the Fifth Circuit is hearing arguments about that stay right now. And by the way, it's not going well for the state of Texas, as you might imagine. So to be clear, Texas passes a law.

District court says no law. Fifth Circuit says temporarily, yes, law. Supreme Court says no law. Then Supreme Court says yes, law. Then Fifth Circuit says no law. Yeah, that's where we are. We're at no law. That's exactly where we are. There's the merits of this, which I don't think anyone's been particularly confused about the merits. I know there's all these folks on the left wing that wring their hands that like, well, we don't know what this crazy conservative Supreme Court will do. But time and again, we do. It's just actually not that hard unless you have partisan brain to figure out what the Supreme Court is going to do in most cases

and definitely including a case that's about a state trying to preempt federal immigration law because we've had this case over and over again, actually. And it's come out the same way every time. Yeah. So the merits to me weren't very confusing.

The process piece of this, however, is absolutely fascinating. You've got this Fifth Circuit administrative stay problem. We now have basically four to five justices and their thoughts on what's going on at the Fifth Circuit, which I want to get your reactions to. on what's going on at the Fifth Circuit, which I want to get your reactions to. And then you've got the merits panel who clearly hadn't been acting this whole time, getting a little bit of a tap, tap, tap from Justice Barrett. Reminder, please turn in your homework. It's many weeks overdue at this point.

Right. They're like, oh, right. Here's my homework. It's super late. David, I've been thinking about how to discuss this because, of course, I went and looked at all of the judges on the Fifth Circuit who were involved in this, including many of the judges who were involved in the cases in the Sotomayor. It's actually not a footnote because it's an asterisk note. The Fifth Circuit recently has

developed a troubling habit of leaving, quote, administrative stays in place for weeks, if not months. And then it lists several cases, one of which 85 days, next 45 days, 41 days, next 66 days, next 48 days. And again, I think the sort of takeaway from that is perhaps there's this partisan reason, right? They're basically using the administrative stay process to get around having to actually write something on the merits. panels, that's not what will jump out at you. What will jump out at you is how it's totally not that oddly. And David, you know what's so interesting about this is that Judge Richmond, who's the chief judge of the Fifth Circuit right now, is on that merits panel, the one that now has turned in their homework. I will tell you, it's sort of a well-known secret on the Fifth Circuit that things keep languishing in the Richmond chambers, that things tend to languish. And I've actually heard from clerks that the work's all getting done. It just doesn't actually

get out. And I don't know why that would be. It's not something new. It's not age-related or anything like that. And it's not procrastination or laziness or, you know, lack of intellectual heft. And it's certainly not political bias. She's considered one of the most sort of middle of the road judges on the Fifth Circuit or really on any circuit bench at this point. But it absolutely, everyone in the Fifth Circuit seems to know that maybe things don't move terribly quickly out of that chambers. Yeah, it really is. Man, as you can tell from walking through this, it's like there we've been in a legal maze. And then one of the aspects of the legal maze that I think most people have missed is almost all of this evaluating has been taking place in the context of a administrative stay, which is not the same thing as a stay pending appeal. And this is where like

your eyes start to bleed, like you're what's going on here. And this is a big theme of Justice Barrett's concurrence that Kavanaugh joined was, look, this is just an administrative stay. This is freezing things in place. We're not even supposed to look really at the factors for a stay pending appeal, which involves among other things, evaluating cert worthiness, the evaluation on the merits. And so what's happened is the lower courts

have put the Supreme Court in position where they're in this administrative stay land, which has really nothing to do with the merits. And as Barrett very carefully explains, just becomes kind of a blink first reaction as to is it more damaging or less damaging to maintain a status quo. And that's not the way courts are supposed to be deciding these issues at all. And so it was a very polite but unmistakably clear admonition to the lower court to do something. Now, I don't think, Sarah, that they did what they did in response that fast to the Supreme Court. I don't know. I guess it's possible. Is it possible?

But it was the thing that's been frustrating about this is we have this incredibly important issue that requires a resolution on the merits, and none of the back and forth that has occurred so far, once we got to this administrative stay arena, has had anything to do with the merits, really, technically. Now, as Barrett says, maybe they're casting one eye or maybe they've got a sort of a first blush, but it's not, none of the element, none of the administrative stay proceedings have dealt with the merits really at all. And so we've been bouncing back and forth for days, weeks, without any real glimpse at the merits. And then we finally got one from the Fifth Circuit, finally. But it was kind of interesting just following this whole thing via push notifications. Because you could tell that the drafters of the push notifications were struggling to accurately describe what had happened without creating false impressions about definitive rulings.

It's just, it's an absolute utter mess. But I am interested in one thing, Sarah, about the merits. So on this, absolutely, if you're talking about the state actually interfering with federal operations or the state actually contradicting or state law contradicting federal law, the merits of that, I mean, it's absolutely clear what should happen in that circumstance. because part of the federal government's argument relies on the Arizona case from the Obama era, which is essentially that the federal government has occupied the field of immigration enforcement.

So this is different from when there's a direct conflict of laws, such as the state enacts a law that purports to override a federal law. It can't do that. That's basic supremacy clause. But the Arizona case that has been the main case involving saying that, hey, that immigration is federal,

this is hands-off states, is not a supremacy clause case in the sense of a conflict of laws, but it is in the sense of this whole concept of the federal government has occupied the field of immigration legislation and there's no room for state for no real room for state legislation. I'm not sure a majority of the court agrees with that Arizona decision any longer, Sarah.

It was a close call when it was rendered. I'm not just not sure if that part of it is going to survive. What what do you think? I think if Texas had simply said that they could arrest people for being in the state illegally, that would have been a really interesting case to me. And hold them in prison.

Right. You know, adjudicate whether they're here illegally and then hold them in jail. Basically making it a crime to be illegally present in Texas. But at the point that you say you can deport people, absolute foreign policy implications. And at the point you say you can deport people

regardless of whether they have pending federal proceedings on their asylum claim, also, nope. Yeah, can't do that. Nod dog on that. So it would have been an interesting case to me, but as it turns out, it's not. Not that interesting, right. Just on the administrative stay part, I want to read a portion of Barrett's opinion than an interesting case to me. But as it turns out, it's not. Not that interesting. Right. Just

on the administrative stay part, I want to read a portion of Barrett's opinion and then a portion of Sotomayor's opinion as well. And note the Kagan didn't join the Sotomayor. Yeah. Yeah. I want to hear your thoughts on that. Yeah. You hinted at something in slack and intriguing. Yes. Okay. So first, here's what Barrett ends with. So far as I know, this court has never reviewed the decision of a court of appeals to enter or not enter

an administrative stay. I would not get into the business. When entered, an administrative stay is supposed to be a short-lived prelude to the main event, a ruling on the motion

for a stay pending appeal. I think it unwise to invite emergency litigation in this court about whether a court of appeals abused its discretion at this preliminary step. For example, by misjudging whether an administrative stay is the best way to minimize harm while the court deliberates. The real problem, and the one lurking in this case, is the risk that a court will avoid

the factors for too long. An administrative stay should last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal. Once the court is equipped to rule, its obligation to apply those factors is triggered, a point that some judges have pressed their circuits to consider. The United States suggested on several occasions the Fifth Circuit has allowed administrative stays

to linger for so long that they function like stays pending appeal. The time may come, in this case or another, when this court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly. But at this juncture, in this case, that conclusion would be premature. The applicant's opposition to the administrative stay included a request that any such stay itself be stayed for seven days pending

an application to this court, and the Fifth Circuit granted that request in its order. It is surprising that both the parties and the panel contemplated from the start that this court might review an administrative stay. Before this court intervenes on the emergency docket, the Fifth Circuit should be the first mover. It should apply the factors and decide the motion for a stay pending appeal. It can presumably do so promptly. for a stay pending appeal. It can presumably do so promptly. Texas's motion for a stay pending appeal was fully briefed in the Fifth Circuit by March 5th,

almost two weeks ago. Merritt's briefing on Texas's challenge to the district court's injunction is currently underway. If a decision does not issue soon, the applicants may return to this court. I mean, just put little like emoji clap hands in between each word of that opinion. So I want to break that down a little for people who are having some trouble following it.

So the first part of this is, hey, remember how all you guys complain about our emergency docket and how we're doing too many things on the emergency docket? How dare you come to us and ask us to not only do this like thing on the emergency docket, but in fact, you would expand our emergency docket hugely by not just the emergency docket on stays and injunctive relief, but now a whole emergency docket on the administrative stays preceding the stays and injunctive relief.

Give me a break. We're not doing that. Dot, dot, dot. Unless the Fifth Circuit keeps acting the fool. Fifth Circuit, we're watching you. And folks related to this case, you may return to this court if I'm wrong. If the Fifth Circuit can't get its house in order. And by the way, Fifth Circuit, it's not just about this case. We're looking, sorry, it has been brought to our attention that this has become a pattern.

So I don't want to do, expand the emergency docket. I think you should conduct regular order at the circuit court. How dare you, Fifth Circuit, think that we were going to take this on our emergency docket and that you could let it languish

and have us decide instead of you. But if you keep doing this, keep this nonsense up, expect the backhand of Amy Coney Barrett. Well, and this actually has echoes of the Trump immunity case where they did not hear the circuit court. Absolutely. I mean, they did not skip the circuit court, waited for the circuit court to rule. And then and the message seems to be regular order, regular order, regular order. And that reminds me, you know, when she says the Fifth Circuit should have been the prime mover here, that's what they let the D.C. Circuit do

on the immunity case. The D.C. Circuit was the prime, was the mover. And when I say mover, I don't mean move it, obviously. That's not a party, but the prime mover and sort of instead of, in the sense of making a, the legal move that the court a party, but the prime mover instead in the sense of making the legal move that the court reacts to. And I thought that was interesting. There really does seem to be a recognition in the court that the days of the emergency docket being dominant really need to go away. Whatever you thought you learned three or four years ago,

you need to unlearn it. And you know how you know that? Is because Kavanaugh joined it. I promise you, he was joining that piece of it with an underline. Yeah. This is an emergency docket,

like, oh, the emergency docket's bad? Oh, until you think it's good, by the way, because now let's get down to Kagan, Sotomayor, and Jackson, who would have undone the emergency stay, as in wildly expanding the Supreme Court's shadow docket, the thing that they've complained about in other cases. And this is the problem with the shadow docket complaints, right? You hate the

shadow docket when the court does something you don't like, and you love the shadow docket when it does something you do like. And on the left, that tends to be death penalty cases. That's all shadow docket stuff. They're very in favor of shadow docket for that stuff. And then cases like this, where the stay issue at the lower court is something you don't like, you would have balanced the factors differently. So you want the Supreme Court to balance them differently. Okay, then you like the shadow docket. If you think that it matters whether there's a stay in place while litigation is pending, then you just like the shadow docket. Sorry, you want that to get decided by the Supreme Court. You like the shadow docket. Okay, just as long as we have that out of the way. Now, here's the next interesting thing. Justice Kagan writes her own dissent from denial.

It's very short. It says, in my judgment, the applicant satisfied the four-factor test. My views of the merits are, as always in this posture, preliminary, but the subject of immigration generally and the entry and removal of non-citizens, particularly, are matters long thought.

The special province of the federal government, see the Arizona court that David was talking about. Given that established understanding, I would not allow Texas SB4 to go into effect. And in the circumstances, I do not think the Fifth Circuit's use of an administrator's stay rather than a stay pending appeal should matter. Administrative stays surely have their uses,

but a court's unreasoned decision to impose one for more than a month rather than answer the stay pending appeal issue before it should not spell the difference between respecting and revoking long-settled immigration law. I think that is a really reasonable take for what it's worth. I just think that Barrett's thinking of, again, this institutional concern of if you give a mouse an administrative stay cookie. Yes, right, right. No, and both, you know, with Kagan and with Sotomayor, it was obvious that they had not one eye glancing at the merits, but sort of two eyes giving the merits a searching look, which was obvious from the opinions. But I'm really interested this,

why would Kagan write separately, that short not sure it was like materially different from the Jackson Sotomayor dissent not one bit in the sense that the Jackson Sotomayor dissent is much longer it's 10 pages long not one paragraph long right so everything that Kagan said is certainly included in the Sotomayor and Jackson dissent. So why did she do it separately? I don't know the answer to that, obviously. A few things.

One, on the actual substance of the 10-page Sotomayor-Jackson dissent, a lot more on the substance of SB4 and why they think they go through each of the factors and just a lot of shade at SB4, which again, this is supposed to be administrative stay, a glance at the merits at most, but also definite shade at the Fifth Circuit that they're doing this for sort of partisan reasons, that there's a partisan bent to it. Maybe Kagan just didn't want to sort of cast aspersions on the Fifth Circuit. But David, we've been seeing some weird stuff

where Kagan and Sotomayor are not seeing eye to eye. And I just go back to that Andy Warhol opinion where it seemed to go beyond the merits of the case. Interesting. Interesting. So something to keep your eye on. Similar with the Gorsuch-Jackson budding concurrence romance that was going on. Right. I'm keeping my eye on the Sotomayor-Kagan being

on different sides of things. There is a fix for this for the Fifth Circuit. And it's the same thing you do in your work life. And we've seen some of the Fifth Circuit judges start to do it already. And kudos to them because I think it's working well. Administrative stays are a necessary part of appellate life. Give yourself a deadline. When you issue the administrative stay, say we issue an administrative stay until April 5th. You know, a two-week administrative stay because then it can't languish. Your clerks are going to be on top of it. There's going to be calendar reminders.

The administrative stay will then cease to exist. The parties will come running at you. It's impossible for it to fall back. And so I think if they if the Fifth Circuit would simply set a rule that you've got a 14 day administrative stay deadline by sort of policy, and then if for some reason you think you need three weeks, set that. But whatever it is, when you issue the stay, set your own deadline. Where those have existed at the Fifth Circuit, they seem to have not languished. Yeah, that's, that's, I think that's absolutely correct. You add a deadline, you, and then, as you said, even if you're lax about the deadline, you know who's not? The parties in the case. That's right. It's like self-enforcing.

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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. All right, David, on to the next thing. We had one other interesting order coming out of the Supreme Court. This was about whether Peter Navarro was going to go to jail.

Chief Justice Roberts, circuit judge, issuing the very rare opinion in chambers. And basically he gnawed it. But I just thought it was fun because we haven't had an opinion in chambers since 2014. Wow. Yeah. What is an opinion in chambers? So each of the Supreme Court justices, as you know, as I mentioned with Alito, right, Alito is the Supreme Court justice who oversees the Fifth Circuit. When they issue an opinion on something they're doing as the circuit justice, it is titled an opinion in chambers. Fascinating. was acting as the circuit justice. In fact, it says Chief Justice Roberts,

comma, circuit justice, not, you know, chief justice, et cetera. So he is acting as the circuit justice over the DC circuit. And it was just a short one paragraph about why Navarro had forfeited some of his arguments, et cetera. It in and of itself, not interesting. The fact that it's the first one

we've had in 10 years. The last one was also from Roberts. We had one from Sotomayor in the Hobby Lobby case back in 2012. Not many of them. Although, interestingly, there was like this period where we had quite a few of them and then we just stopped ever having them again. Yeah.

Like there actually were regularly opinions in chambers, like one or two a year. And then we didn't have any for 10 years. So I don't know. Are they coming back? Probably not. And when you say Roberts gnawedogged it, in plain English, that means Peter Navarro's going to jail.

He's in jail, I think. Yes. I think he reported, was it yesterday? Yeah, I think so. Yeah. Okay, David, next up, we got a couple more opinions from the Supreme Court. So exciting.

One of which was one we talked about after oral argument, and this was that FBI no-fly list case. Right? The guy's on the no-fly list, so he sues, and then the government says, oh, okay,

we'll take you off the no-fly list, and we have no reason, based on the current information we have, to put you back on. Is the case moot or not? Dun, dun, dun. Justice Gorsuch writing for a unanimous court. And this will surprise people who really believe in a 6-3 conservative juggernaut crazy court. Right.

Said not moot. Absolutely. The guy who was on the no-fly list gets to sue the government because it's not clear why he was put on the no-fly list, why he was taken off the no-fly list, and whether, for instance,

one of his claims is he was put on the no-fly list for religious reasons, whether if he simply visits some mosque, again, that he doesn't even know about, whether he could be put back on the no fly list. One of the things he alleged is the government, when they interrogated him, said that they basically would take him off the no fly list if he would turn against some report being informant against some of his co-religiousists. How do you say that, David? Co-religionists. Religionists.

Religionists. Yeah. say that, David? Co-religionists. Religionists. Religionists. Yeah. So, yeah, I mean, I think that when you think back to what conservative and liberal meant 20 years ago, it would be shocking to hear that a quote unquote conservative court side against the government in a no fly list issue. Now, you had an Alito concurrence that Kavanaugh joined saying, just to be clear, we're not saying you have to give the guy classified information. But right. Unanimous decision that this wasn't moot. Yeah. Yeah. You know, in those circumstances that you just described where they take him off,

but they might put him back on and they won't tell him why he was on in the first place. on and they won't tell him why he was on in the first place. It just makes me think of if you want from this point forward, if you had the if you looked up what is capable of repetition, but evading review mean, they should just say see the facts of FBI versus how do you pronounce it? Fiker, Fikey, whatever. Finky, Finky, whatever. See the facts of that case, because it just, it's textbook. It's absolutely textbook. But again, as you were saying, you know, it really is interesting what, how, how the definitions of certain judicial philosophies do change because, you know, a conservative court used to be one of the aspects of a conservative court used to be absolutely sides with law enforcement. Absolutely. Or a conservative court used to be one that was

unfriendly to plaintiffs was another example, especially unfriendly to civil liberties and civil rights plaintiffs. That was a conservative court. But now if you have a conservative court, you're actually going to be in pretty good shape making your civil rights, civil liberties complaints. You're going to be in good shape even if you're representing a criminal defendant. I mean, there has been a very big change in a more libertarian direction for sure in what you would call consensus conservative jurisprudence over the last 25 years. And in fact, Sarah, that's one of the things that the new right is mad about. They want to go back to the older definition, which is kind of the irony of the term new right. They want to go back to the older definition of sort of we're backing the blue is, you know, our judges back the blue, our judges back the blue, our judges back the state, our judges back the power of the state. And that's not what conservative jurisprudence is at this

time. And just remember that how opinions get assigned for a unanimous opinion, it would be the chief justice assigning it to a more junior justice on the court. And boy, when it came to this case, I can just see Justice Gorsuch popping out of his chair to volunteer. Oh, yeah, absolutely. Not a coincidence that he was the one that wrote it, I think. Okay, David, we had two amazing oral arguments on the First Amendment and government coercion. The first one was about the Biden administration's attempts to get social media companies to remove, quote unquote, misinformation around COVID from their platforms. Was it persuasion or was it coercion?

And it was a hot bench. Yeah. Yeah. So, Sarah, let me just kind of back up a minute and say, I now know why the court took both the Vulo case and the Murthy case, the Missouri v. Murthy case, because it seems pretty clear to me after both oral arguments that they're saying, hey, all of this stuff in the social media realm that you're talking about in the Missouri case, that's just what government officials do. They Hector and Jawbone members of the media, the press, they try to persuade, vigorously, aggressively persuade all the time. This is what public officials do. That's what they've always done.

The fact they're doing it to Facebook doesn't make it worse because they've been doing it to the New York Times for generations. And then with NRA v. Vulo, which we'll get to, it felt like they were saying, and then this is where you see how they crossed the line. So my original thought was you had two very similar cases coming up on the persuasion versus coercion. Why you take them both versus taking one and then vacating and remanding the other for reconsideration in light of the case

that you just decided. But it seemed pretty clear to me after these two arguments, they had a whole different approach in mind. And here's one clear example of one thing and here's one clear example of the other thing seems to be the way this is going. But Kavanaugh in particular in the Missouri case

was really interesting in the way he used his federal experience to say, wait a minute, wait, hold on. Have you thought through the implications, Missouri? Have you thought through the implications of what you're arguing here? And no, I said thought through the implications of Missouri. It was not the Solicitor General of Missouri arguing the case.

The Solicitor General of Louisiana, in fact, argued the case. Yes. Mr. Solicitor General, have you thought through the implications here of what you're suggesting? It was very clear that Kavanaugh was in many ways, was taking, was using that federal experience in a way I think think, that was interesting. Yeah, and Kagan as well, right? You had the two people who had been in senior government roles saying, wait a second, I'm pretty sure this is par for the course. At one point, of course, it really turned on this email exchange where the press person is cursing at the social media employee.

And look, I'll just tell you from my experience of doing that, I actually think it's really poor form to curse at reporters, not only because it's impolite, but actually, it's sort of like the going up to 11 problem. If you turn your amp up to 11 all the time, then nothing's an 11. That being said, have I turned my amp up to 11? Yeah. Yeah. In fact, David, the 11, the most 11 was right before there was a story in October of 2018 that Rod Rosenstein, the Deputy Attorney General, Acting Attorney General over the Mueller investigation, had raised the prospect of invoking the 25th Amendment against the

President of the United States. And I got a call from two New York Times reporters about that. I was traveling for work in that moment. And I'm in, I was actually at the University of Alabama, and Attorney General Sessions is walking with the actually at the University of Alabama and Attorney General Sessions is walking with the president of the University of Alabama through their biomedical research facility. And, you know, oh, this is very interesting. And we've invested in this. And if you look over there, that's our oncology wing. And we've made some real breakthroughs and discoveries. And when they told me, you know, that like basically they're going with this and I won't even have time to like get a comment out or whatever else. There's just me screaming F-bombs in the atrium right as the attorney general walks into the atrium with the president.

And the president of Alabama is horrified. You can see it on his face. I'm, of course, horrified that I've behaved so boorishly in public. And the attorney general turns to the president of Alabama and goes, that's our Sarah. She's a spirited one. I can so see him saying. I mean, I'm just screaming F-bombs and saying like, you purport to care about the constitutional order of this country and you're about to have a constitutional crisis because you won't wait for comment, you effing, effing.

Wow. Which I stand by all of that. Remember, the deputy attorney general can't invoke the 25th amendment. The story made no sense. Anyway. So yes, the idea that I was violating the First Amendment would be silly. Now, here's the problem. Those emails weren't just cursing at them, F you, take down this post. Those actually weren't the interesting ones to me. It's the ones that say, well, I guess we're going to have to look into 230 reform or change our position on 230 reform or look at all of our options, quote unquote, if you can't get this done. The question is not whether yelling at people or trying to persuade them is a problem. Nobody thinks

that's a problem. The question is, I think, how specific the stick has to be. Yeah. As in, does the stick need to be, do this or else I will do this thing that was in my exclusive authority? Because if so, only complete morons, like we'll see in the New York case, are going to get caught doing that. The question is, can you do the mob boss thing, right? Do this or else it'd be a real shame if something happened to your 230 protections. But the court seemed not very interested in that.

Basically saying like, of course, you know, how could it work if an administration can't change positions, even based on how things are going out there in the world? You know, there was this thing, by the way, that made a ton of news in like the right-wing circles that Justice Jackson asked about whether the government was being, quote,

hamstrung by the First Amendment and how outrageous it was that she said that. I just, I get so annoyed by what amounted to basically a four-hour argument and this one one not even sentence scrap of a sentence being taken out of context she was giving a hypothetical about what would happen if there were like a tiktok challenge for teens to jump off increasingly high things which would inevitably result in the severe injury and death of said teens and it's sweeping the

country and the government is very concerned that if they don't take action immediately, that the more teens are going to die. And so they're, they're going to the social media companies and begging them. And she was asking, so like, are they hamstrung by the First Amendment in this sort of national emergency? And the answers, of course, were sort of about step one and step two of the strict scrutiny analysis. The Solicitor General of Louisiana was trying to make the point, no, of about step one and step two of the strict scrutiny analysis. The Solicitor General of Louisiana was trying to make the point, no, no, we're in step one. Is this a First Amendment violation? Because did it transform the social media company's actions into state actions because they were acting under coercion? And Justice Jackson was trying to ask, well, I'm wondering whether we're in step two.

Was the government acting under a compelling interest? Yes. You know, so yes, it was state action, but we move on to step two. But none of that made it into any of the right-wing attacks on Justice Jackson. Instead, it made it sound like she was against the First Amendment,

that, you know, it should be suspended against conservatives. Wasn't her point at all. And you'd have to actually know about tiers of scrutiny and strict scrutiny and sort of the two steps that you'd have to look at and the factors and why she was asking whether we're on step one or step two. And yeah, maybe hamstrung by the First Amendment isn't the best turn of phrase. Do you know how many oral argument hours they're doing per week? And you picked out four words? Okay. Well, that's a larger issue around this case in general, Sarah, because the

number of people who are the Venn diagram between the number of people are super amped up on the Twitter files. In other words, think that the Twitter files has uncovered some giant national scandal. And those people who understand the First Amendment, the law around jawboning, the historical practices of jawboning, it's two completely different circles. They're not the same people. And so, because if you understand the law around jawboning,

the history and the tradition around jawboning, and you understand that, then you're not going to be in the category of people who are completely amped up over the Twitter files. Those two things are not, they just don't go together. And the interesting thing I thought about the case was, and the argument, is it really did kind of puncture the Twitter files mythology.

The argument just blitzed it, just obliterated. And much of the argument beforehand has really blitzed and obliterated that whole Twitter files conceit. And, you know, it was remarkable to me, though, how the right has developed such a dependence on social media. And I wrote about this, that if you actually look at a lot of the places where people on the right write, W-R-I-T, and publish their work, there's this just free, this unbelievable collapse in readership, just an absolute collapse.

So, and for many folks, the only place, the place where they are seen and listened to and heard, it's on these social media platforms. And so the primacy that the right places on maximum liberty for themselves on social media is really remarkable. And then they, so that what they essentially have been arguing is even an effort to persuade, if it comes from a government official is just going to violate the First Amendment. And they viewed all, all of the efforts to persuade as proof positive of violations of the First Amendment. Whereas again, a lot of people have been in journalism for a long time would say,

oh, you think that's an angry email? Let me explain, let me show you that email I got three years ago when I was reporting out X or Y story. Or let me show you the email I got three years ago when I was reporting out X or Y story, or let me show the email I got five years ago when I was reporting out this other story. And so you just had a giant gap between the understanding of what the law was versus what the Twitter files revealed. And I think that this case is ultimately exposing much of that. So how is this case going to turn out? I think everyone agrees that the states, the Louisiana Solicitor General, however you want to characterize it, will lose. The problem for them, I guess, which is sort of interesting, is how many different ways they can lose. You know, as I mentioned, there's sort of the Justice Jackson test. I didn't hear any other

justices really interested in that strict scrutiny analysis. I think they want to get to it in an earlier part of the analysis than that. There's the specificity of the stick that I mentioned that's simply saying like, well, we're going to have to review our 230 position. Maybe that isn't going to be specific enough. I think that would be the biggest splash of an opinion that there could be on the specificity of the stick. But there's also just bigger problems with their evidentiary record at this point. Traceability of the harm. There's no question that some people's posts got taken down. But, you know, what they were talking about was like, the government would send something flagging a post as misinformation. And then three years later, a different post from that person gets taken down. Right. And that person is suing. Well, your harm isn't traceable to the actions of the government potentially. So you've got

those types standing issues as well. And there were at least two or three justices quite interested in the standing part of this, which would not make for an interesting case at all. It will basically throw out the case. Right. Largely speaking. So that takes us to the New York case. We have the superintendent of the Department of Financial Services, which is a very, very important job in New York, overseeing several thousand banks and insurance companies that manage trillions of dollars of assets. This person can grant or deny licenses, launch investigations, impose millions of dollars in fines, appoint monitors, refer matters for criminal prosecution.

So this person, Maria Vulo, does not like guns. And the governor at the time, Andrew Cuomo, also does not like guns. So what she did was send a formal guidance letter and press release urging every bank and insurance company in the New York state to sever their ties with the NRA or similar gun promotion organizations. She promised enforcement leniency to insurers if they halted business with the organization, and she publicly announced consent orders with three longtime NRA insurance partners that imposed multi-million dollar fines and barred them from entering into even entirely lawful commercial partnerships with the NRA insurance partners that imposed multi-million dollar fines and barred them from entering into even entirely lawful commercial partnerships with the NRA ever again. Those threats worked as numerous other banks and insurance companies declined to work with the NRA out of fear that

Vulo would go after them next. So what's the question here? The government can't do indirectly what it can't do directly. Meaning you can't get a third party to violate the First Amendment for you. So did this violate the First Amendment because it was viewpoint specific? Like you couldn't deny a license to the NRA because they promoted guns and you don't like the promotion of guns?

Can you get insurance companies to not do business with the NRA because you don't like the promotion of guns? Now, what's helpful about this case is that you had so much traceability. Yes. You have the guidance letter, the consent decrees, and then this incredible meeting with Lloyds, where she spells out exactly what they're doing, why they're doing it.

And then Andrew Cuomo going out and saying, we're making great progress. Our goal is to bankrupt the NRA by putting pressure on these companies to stop doing business with the NRA. The argument in that sense was sort of uninteresting. I really didn't hear any justice come up with or be interested in a theory where this was okay.

Yeah, and this is so substantially different from what we're talking about with the Twitter files that you can see the logic in accepting both cases. And here in the New York case, you had actual guidance letters issued, which is absolutely an aspect of this person's authority. You had intentional pressure placed on third parties, guidance letters still up, by the way. This is something that came up, that guidance letters are still up. And so you have here with this New York state official, with Vulo, you have

somebody who is clothed with an immense amount of authority, just an immense amount of authority, and is exercising that authority in a way that is inducing third parties to take direct action against a disfavored person or disfavored entity. And, you know, when that case was first decided, we've talked about this case off and on for years, Sarah. It was interesting to me because the case actually laid out a pretty sensible test of, you know, an A, B, and C of how to determine whether there has been coercion. And then in my view, just like flunked its own test. Like all of the elements were right there in this case. They laid out a sensible test and then just didn't properly apply it in the case where they laid out the test

was my view on it. So it's gonna be very interesting to see how, it's gonna be interesting to see if the court sort of takes up the Second Circuit's test or a version of it and then just says, you just didn't apply it correctly, what the court does exactly here. But the two different cases,

the Missouri case and the New York case, actually ended up serving an interesting purpose to where you could look at one and say not coercion and look at the other and say absolutely coercion. And you can see the material differences between the two. What's so amazing is the Second Circuit opinion is stunning to me because this comes up on a motion to dismiss. And the second circuit says there's no reasonable reading of the facts that this was coercive behavior i think they might get reverse nine zero on that whoa yeah that's that should be embarrassing but they basically held that this was no different than an op-ed which of course you'd be allowed to write an op-ed.

The only part that in the argument I think is worth steelmanning a little bit, if there is a concurrence that perhaps fleshes this out, is the idea of reputational harm. That in her letter to all of the banks and insurance companies, she's talking about how affiliating yourself with the NRA could result in reputational harm. And reputational harm actually is something that banks and insurers are supposed to take into account that could affect their financial health. And so there was some question of, you know, what would it look like if that were sort of a valid flag for her to send out and say, hey, we are concerned

that this could undermine your financial health, a reputational, you know, hit, etc. And I thought that the answer to that from, by the way, who was representing the NRA at this oral argument, the ACLU, from the ACLU advocate on behalf of the NRA was, yeah, look, that may exist in some, you know, real world down the road case. But in this case, it was a pretext. She used that language as a pretext for what she actually wanted, which was simply to bankrupt the NRA, to make sure that all of these gun organizations went out of business. There was also an issue where some of the insurance companies were providing illegal insurance policies, illegal under New York state law, because they would insure you for intentionally criminal conduct. Womp womp. But those policies had all been gone and rescinded way ahead of time.

And of course, those policies had only been issued for NRA members. Those were the affiliate insurance policies. And yet the letter was about any gun promoting organization. So that also, I think, looked very pretextual. Yeah, I mean, I think we could have two 9-0 cases. Yeah, that would not shock me.

It would not shock me. And just to underline what I was saying about the Second Circuit opinion. So here's the four point test that they put forward to distinguish between attempts to convince and attempts to coerce. One, word choice and tone. Two, the existence of regulatory authority,

which is there in spades here. Whether the speech was perceived as a threat, yeah. And perhaps most importantly, whether the speech refers to adverse consequences. So it was really interesting to me to see this very sensible test laid out. And then it just, I was thinking, wait, were we looking at the same thing here?

Are we, do we see the same things? Yeah, just very, very strange. And pretty gross, because I guess for me, it was so clear this was the government trying to abuse its power against an undisfavored point of view. The point of view being gun rights are good. That again, imagine the state of Florida doing this against their disfavored viewpoints and like, oh wait, they have in passing some of these laws. And the reaction from the media,

I mean, right, don't say gay isn't actually the name of the law, David. Right. The word gay never appears, never says you can't say gay. All of those complaints, I thought were really valid from the right and from those who were defending the law. I still don't think that makes the law constitutional,

but you know, how, what a threat this was to free speech in American democracy. And yet when New York state does this against its disfavored viewpoints, I don't know. I just didn't hear a lot about it. There was no caricature of how dangerous that was for democracy in the first. Yeah. Yeah. I find that really frustrating. They're both dangerous. When Gavin Newsom says governor or sorry, doctors aren't allowed to say anything about COVID that isn't part of the quote scientifically acceptable consensus defined by who knows who and Texas and Florida and New York.

We should not be OK with any of this. The government should not get to determine whose viewpoints are allowed in their state. Yeah. I can't wait for the decisions to come out on this because I'm going to do that exact same rant all over again. And I just know it. Yes. No, I'm looking forward to it. I'm looking forward to that rant. I'm looking forward to it. David, now we've got the fun part. Some really fun notes to go through from listeners from the last few days that are just top-notch.

So first of all, from an undergraduate math major, 0.999, et cetera, does equal one, he says. And look, for math purposes, he's right. So to the extent that I offended all of our mathematicians out there by applying that somehow 0.999 doesn't equal one, I was referring to the fact that, yeah, in real life, we inside math that you can use the same, like that they are the same as long as you basically stop treating.999 as a decimal. Okay, but that was fun. Thank you. Next up.

Remember, I said I was worried that I might not know what happened to our dear Mr. Linkey. Don't worry, says someone from Port Huron, Michigan. I have to wear sunglasses at night to avoid the brightness of the media attention that Kevin Linkey insists on in this town. That is a great line. Be careful, Jason. He's definitely going to block you. It's so funny.

Next up, we got an amazing email from a Logix professor about the and versus or debate. And I wish I could read the whole thing. I may put chunks of it in the show notes if we can actually get all the symbols to work there because he used like, you know, all the like picture symbols, David, that you use in formal logic courses. But in the end, this is the best. If we were in logic class, I might invite you to make a

truth table to convince yourself of this equivalent. But since we're not in logic class, and it's a strange sort of logical overture to advance on strangers outside of logic class, I'll leave you be. The point is just that it might look like the majority is being illogical by understanding and as meaning or, but on a more charitable interpretation, they're understanding and to mean and, and taking it to have wider scope than negation in the sentence. I'll just note that if Sarah says to Nate, do not throw a temper tantrum and talk back to me,

she probably intends for the negation to be taking narrow scope. She's saying, don't throw a tantrum and don't talk back to me. She's not saying, don't throw a tantrum and talk't talk back to me. She's not saying don't throw a tantrum and talk back to me. The latter would forbid Nate from doing one of the acts as long as he didn't do the other. And she probably wants to gnaw dog both of them.

Her intended interpretation is logically equivalent to, and then he shows some of the formal logic. So it might look like she accidentally said and when she meant to say or. But when you think about how scope works for logical operators in language like English, you see that the change is missed. The charge is misplaced. English doesn't always make scope clear, which is in fact no small part of what motivated logicians to invent formal logic. And by the way, when I say logicians, it sounds like I'm saying

magicians. Well, at a certain level of advanced logic, doesn't it seem like magic? So true. And there's an old saying, technology at a certain level of advancement presents as magic. All right. Last up, I got a great email explaining how perhaps my side eye, where I'm flirting with agreeing with Professor Amanda Tyler at Berkeley about how standing is this area where the courts are not telling Congress to do its job or really even allowing Congress to do its job. Maybe I'm more right than I'm letting on. So here was an email from Brett. I don't see federal standing pushback as contrary to your Congress do your job thing. We don't actually know how federal courts will react to Congress being more specific than it really wants statutory

damages where there's no injury. Congress states generally haven't done that yet, as far as I know. In Spokio, that 2015 case, SCOTUS was very open to Congress making clear it meant to recognize a new harm that isn't a common law judicial harm. And Congress do your job was all over that opinion. By TransUnion, though, 2021, now SCOTUS was saying we cannot treat an injury as concrete for Article 3 purposes based only on Congress's say-so. At the state level, FOIA-like or sunshine laws, the courts have been holding that this was the legislature being specific enough it intended for judicial relief in the absence of any injury. It's an open question, but what happened now if Congress say revised the FDCPA to tell courts to hear cases and award damages for technical violations where there is no concrete harm? Yeah, I don't know that I'm convinced, but I appreciate the helpful defense. Nevertheless,

David, it is a wonderful time to be a legal podcaster. It really is. But I mean, between now and the end of June, I mean, this is our time. We're gonna have, we've got more interesting arguments coming up. We've got a pile of incredibly important decisions coming and it's all coming by the end of June, all of this. So this is the time.

This is when we've been working in the all of this. So this is the time. This is when, you know, we've been working in the season to this moment. Playoffs have started. We're in the first round of the playoffs. Games really, really matter, but we're not in the finals yet. Now, this is the best time. And with that, we'll see you

on the next episode of Advisory. Bye, Zerita.