Advisory Opinions - The Bridge on the River Mandamus

Episode Date: June 25, 2020

David and Sarah discuss Joe Biden's polling lead in six swing states, the latest development in the Michael Flynn case, the Supreme Court ruling on asylum seekers, and free speech online. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger.

And once again, Sarah, the Supreme Court has let us down. Yes, once again, no Espinoza. And you know why this is happening. It's because every night before our podcast, David says, Hey, Sarah, what do you think's coming out tomorrow? And I say Espinoza. And that keeps not happening. But I think we should keep doing it because at this point, we're heading into July, which is almost unprecedented. Yeah, it is almost unprecedented. And I'm beginning to feel like we might have one of those case days where you get like three or four massive cases in one day. Which will also be a bummer for us, frankly.

Well, no, I mean, it's a podcast. We can have a three hour. We can Joe Rogan it. We can Joe Rogan it. We can go three hours. Just to like catch people up. We have all the May cases that are outstanding, but the three cases before May that we still have are Espinoza, Celia Law, which was the CFBB case, and June Medical. Espinoza was the Baby Blaine amendment case out of Montana. We've got, which is a big case, the June medical, which I feel like the outcome of that is likely to cause conservative America to spontaneously combust.

This is the abortion case out of Louisiana on whether doctors need to have admitting privileges. Which I have publicly and loudly expressed my pessimism about the outcome of that case. And then the CFPB case, which I don't know, I think the odds are pretty good that the CFPB survives, but the leadership structure or the independence of the director of the CFPB does not. that they just sever that one part and the rest stays in place by the way on bingo. So we did have an Alito opinion today. And so that leaves really Roberts and Breyer missing opinions for both the January and February sittings. Uh, so of those three cases, we know that Breyer and Roberts will write two of the three. Someone's going to then double up on January and February. So that one's a bit of a coin flip. Right. So, you know, Monday, Espinosa.

Monday, Espinosa. But we may be disappointed at the SCOTUS case load today, but you will not be disappointed with this podcast because we have other things to talk about. Beginning with swing state polls that came out today, we're going to talk about, beginning with swing state polls that came out today. We're going to talk about the Michael Flynn order from the D.C. Circuit yesterday. We're going to talk about briefly the case that did come out today, an immigration case involving asylum and habeas corpus. I promise it's a little more interesting than I just made it sound. And then we're going to talk a little bit

about free speech online and the PAS. Sarah, are you familiar what the PAS is? No. The PAS is the Parley Autonomous Zone. Oh, my. That I just made up that term. That a number of number of MAGA voices are heading to a social media app called Parlay. And they did it all at once earlier this week.

And then we're going to wind up with a little discussion on what is a skill that we wish we would have had during this pandemic. And the answer cannot be epidemiology. Not really a hobby. I mean, I guess it could be back in the day, perhaps. Yeah. Hey, David, before we jump in, I have another trivia. It's more than trivia, but it's less than a whole segment for us. Ray Supreme Court opinions. Okay. Ray Supreme Court opinions. Okay.

This comes from a guy on Twitter, at SCOTUS Places, and he pointed out something really interesting in the Kagan opinion from earlier this week. She has two parentheticals in her Thacker v. TVA opinion that say quotation modified. That's kind of weird. Cause like if you're quoting something, uh, and you need to modify like capitalization or change the tense of a verb and stuff, normally we put brackets and it's like,

that's tells you that it was modified. Right. Uh, so know, says becomes S-A bracket I-D. Right. And bracket. No need for parenthetical quotation modified. So he dug into this and was like, that's strange. I wonder what the original quotation was. And in one of them, it was something close to that. It was a bracket issue, let's call it. But in the other one, the sentence being quoted in the original says, quote, hence considerations of convenience, cost, and efficiency. Okay. She, however, quotes it as inconvenient, costly, and inefficient. Hmm.

That is actually just modified. Inconvenient, costly, and inefficient. Hmm. That is actually just modified. And I don't think it so drastically changes the meaning that, you know, this is a big call-out moment. But I do think, and David, tell me what your thoughts are. If as an attorney, you changed a opinion citation like that that i think you could end up with a good number of judges who would find that to be potentially misleading oh i think you could get in trouble i mean like that's the kind of thing that opposing counsel would call you out on i mean that would pounce yeah yeah uh so anyway thank you at scotus places for pointing this out i find it

really fascinating um i hope we don't keep doing parentheses quotation modified because i think that leads to some messy places where now all of us are going to have to constantly go back and read the initial quotation because we will sort of lose trust and faith that the quotation was modified, you know, with only the sincerest, you know, of what the initial meant. Because I don't know, to me, that's a little different of considerations of convenience, cost and efficiency. That's considerations versus inconvenient, costly and inefficient, which is just that they are not convenient. Right. That is different. I mean, that's almost more different than a, I mean, we're going to,

let's just really dive into the blue book weeds here. I would feel weird attaching a C-E-G to that because it's just not exactly the same meaning. Right. I would tend to do C-E-G when I'm doing kind of a rough paraphrase. Yeah. But, huh.

Okay, we just lost the entire... The moment in a legal podcast you start talking about C-E-G is the moment that people run screaming into the night. Oh, but listeners, if you do want a whole podcast on the Blue Book, I mean, there's no bigger fan. I'm so here for it. And that, that friends will be the very first solo advisory opinion podcast. All right, David, let's go on to bigger and better things. The New York Times released its big poll showing Biden leading Trump by double digits nationally. Today, they followed up with swing state polls.

And again, we're going to begin with the caveat that this is a single poll, although we're beginning to see other swing state polls that are showing some similar numbers. But here's the New York Times Siena swing state polling right now. And this is not good for Trump. So it has Biden up on Trump in Wisconsin, 49-38. Biden up on Trump in Michigan, 47-36. Biden up on Trump in Pennsylvania, 50-40. Biden up on Trump in Florida by six. And then this one, Biden up over Trump by seven in Arizona. Hey, David, do you know what all those states have in common? What do they have in common? Trump won them in 2016. Indeed.

Indeed, he won them all. So I went to one of these little 270, the map 270 to win. And I thought, what does the Electoral College map look like if you flip all those states? Oh, man, you can spend a lot of, that's like a 2 a.m. time or 3 a.m. time when I'm going to just be sort of like eyes glazed over flipping states back and forth. Oh, and then we like screenshot and send them to each other? Exactly. Exactly.

I'll be doing some sort of feeding and you'll just be on 270 to win being like, wait, have you seen this iteration? This is how Maine One can describe the interview. Oh, Maine. And Nebraska. Yes, and Nebraska. So if you flip those states from Trump to Biden, it's a blowout.

It's 334 to 204 in the Electoral College. And that's with, and that doesn't count some of these pretty solidly red states that are now either show within the margin of error Biden leading like in Ohio or within the margin of error Biden, you know, within the margin of error Biden trailing by like, say, one or two, like a Georgia or a Texas. And so, again, this this is it's late June. Anything can happen. And so again, this is, it's late June.

Anything can happen. Yeah, and there's some other things to mention about this poll, which is, you know, New York Times-Santa College is a good poll. However, one, because of the virus, and let's add in the president's statements on mail-in ballots. I think that the turnout model is a little hard to predict in June, what it will look like in November. It's not that they're not trying to poll for turnout correctly right now.

They are. But if the election were held today, it's just a very different set of people, potentially, than if the election is held in November. So there's that issue. And the mail-in ballots are like a subhead of that, which could be its own issue. What if Republicans refused to do absentee ballots? That could skew these numbers more. I also, in the national poll, for instance, where the crosstabs are a little more reliable because when you're dealing with a much larger group of people, you can look at subgroups

and the margin of error increases, but not so much as if you're looking at these much smaller sets of people in individual states. Biden's advantage with white college-educated women is 39 points, David. Yeah, yeah. Points, David. Yeah, yeah. And Biden's pulled in a tie with male voters, white voters, people middle age, that's you, and older, also maybe you. Wait a minute. I can't be both.

I can't be both. I'll settle for middle age. Yeah. You know, I was listening to Jonah's podcast, The Remnant, um, and he had Chris Dyer Walt on there and you know how I've kind of described the suburbs is the justice Roberts of the election, the swing vote in the election. Um, it seems to me in real life, uh, the actual justice Roberts is over the Trump administration as evidenced by the census case and the DACA case. And it seems like the figurative Justice Roberts is increasingly overively trailing in the suburbs in 2016. And how big a deal is that? According to Starwalt, that's almost half the electorate. Almost half. And then there's a little

bit more urban voters than rural voters, but urban and rural kind of split about the other half. But almost half the electorate is suburban voters. And Justice Roberts, the electoral Justice Roberts seems to be souring on the Trump administration. And that's one thing that I think, where am I looking at his strategy to address that decline? I don't see a strategy in play to address that decline other than perhaps hoping that some of these blue state mayors and blue state governors just sort of keep letting mobs pull down statues of abolitionists and union generals. But that, you know, I sincerely doubt that that is going to continue much longer. I sincerely doubt that that is going to continue much longer. But I don't know.

Where are you seeing a strategy to address this suburban decline? Because I'm not seeing suburban messaging. In who do you trust more on questions? Who do you trust more on healthcare? Who do you trust more on education? Leadership skills, bringing the country together. Biden sweeps all of those, except for one. And it's the economy. Right. And I think the president has spent three and a half years at this point staking his reelection on the economy. And what's fascinating to me is he's still

ahead on the economy by outside the margin of error. And if this is a V-shaped recovery, which there's indications for that and there's plenty of indications against it. Right. And he holds onto that number. You know, a lot of people are going to decide all those other things are important. I like Joe Biden more,

but at the end of the day, I think Joe Biden's going to run the economy into the ground because he's going to run the economy into the ground because he's going to make AOC treasury secretary or something, whether that's realistic or not. So I think what Biden has to be careful of is, and I think he's done a really impressive job as a strategy right now to not give too much lip service to that far left wing of his party. Think about during the defund the police thing. He came out fairly quickly and was like,

no, we're giving more money to community policing. 300 million. That was smart. He's got to keep that up though now through November while still getting those people to turn out and vote for him. It's a tricky little balance beam he's on.

At the same time, the president's on a balance beam as well. Because to your point, I don't see him changing his message. I don't see him becoming a different human. We talked about the John Thune quote on the dispatch poll yesterday. But John Thune, a senior Republican senator said, I think right now, obviously, Trump has a problem with the middle of the electorate, with independents, and they're the people who are going to decide a national election. I think he can win those people back, but it will probably require not only a message that deals with substance and policy, but I think a message that conveys a perhaps different tone. Yeah. So as long as Donald Trump changes the substance, the policy, his message, and the tone, as long as Donald Trump changes the substance, the policy, his message, and the tone,

John Thune thinks he has a chance. So I don't think that's going to happen. But if he can really hit the economy drumbeat and people see results from that, plus, just as I said, the electorate is going to look different between today and November. It could be worse for him. It could be better for him. But taking that snapshot now truly is this like moment in time in the middle of a lot of other things going on. Yeah. And, you know, we have to sort of put a pin in this as well. We hit, depending on which meter you look at,

yesterday, we either hit the all-time high in coronavirus diagnoses or the number two day in the whole pandemic. And it's not evenly spread across the country. Texas, Florida, Arizona are getting kind of hammered right now. And this is a second coronavirus wave, and it doesn't even have to lead to formal lockdown orders,

which causes real alarm from a critical mass of people for them to stay home and to kind of voluntarily seal themselves off, is really going to do devastating things, number one, to public health, by far the most important. Number two, also critically important, the economy. And then number three, I think a second wave that comes in and is real, and I highlight these states because some of these numbers are you're seeing more cases because we're just doing a heck of a lot more testing. And so I wish people, when they talk about more cases, would also indicate more testing is being done. But in some of these states, it's not just that more testing is yielding more cases. We're also seeing more hospitalizations. And hospitalizations are a trailing edge indicator. And then deaths are

a trailing edge indicator of hospitalizations. Now, one thing that is at least a little bit more promising from the standpoint of mitigating the human toll is it does appear that a lot of these infections are in younger people, which they have a much higher survivability rate than older Americans. But that doesn't- Like you. Wait a minute. We said nothing about middle age.

But that doesn't mean that for an awful lot of folks that this isn't a serious disease that they catch. Right. And it can, yeah, I mean, your breathing can be affected for quite a long time. You know, you can't necessarily resume your daily life like the flu two weeks later. Yeah, exactly. Exactly. So my general thought is if we end up, if this isn't just sort of a, if we end up with a significant wallop of a second wave this quick, this soon after we've kind of all

wandered out of our caves. I mean, Tennessee is pretty much open right now. Um, I, it's going to be really hard for me to see how, um, the economy comes back strong enough, uh, or Trump comes back strong enough. Uh, I've always had this theory that the real enemy of the economy has always been the virus. And there's a lot of numbers that indicate that people began shutting down dramatically their lives before the lockdowns. And so a second wave will have real impacts. And I just hope and pray this number overall is an artifact primarily of increased testing, although we know in some states it's not. We know in some states it seems like there's community spread. Yeah, I was just going to say, yeah, I mean, we know it's not just testing because the percentage of positive tests, if it were just testing, as you

increase testing, the raw number would go up of positives, but the percentage of test positives should go down. Right. And that's not what's happening. The percent is staying the same or increasing in some of these states, in Texas in particular, I believe, which means it's absolutely not testing. Yeah. It is, in fact, more people as a percentage getting the virus. So I think you're right. The one thing I'd quibble with is

I don't think we can call this a second wave. I think we're very much still in the first wave. A second wave to me means that we actually saw real downturns, significant downturns, and then it went back up. And I just think if you look at the overall trend rate, there was maybe some stagnation there for a couple weeks, but we never really saw the end of the first wave.

A second wave to me looks far more like 1918, where it largely disappears over the summer and comes back in the fall mutated so that it is affecting different sets of people and more deadly. And that, I think, is the true nightmare of nightmares. Yes, exactly. If this thing starts affecting children in a way that it affects older Americans like the flu does, you know, God help us all. Yeah. And I'm looking just to echo what you're saying. I'm looking at the seven day moving average of daily new cases and it never went down real. I mean, it kind of peaked. It went down a little bit, leveled off, and now it's arcing right back up again. On the deaths, thankfully, it's a different story.

Yes. On the deaths, thankfully, it really is decreasing. But that decrease seems to be leveling off, which is a little scary. It's leveling off at around 700 people a day which is just an unbelievable number to think about and then if that leveling off you know so we we did have a pretty steady decrease and i the tuesday numbers were sort of the the big number there they were always sort of the biggest number of the week and uh the last two Tuesdays, it's been flat. And that's very worrisome. So we'll see. And who knows what that means? I don't think

it means anything good politically for Trump. I think it means a lot of uncertainty surrounding the election if we're still in this space. And I don't even want to start thinking about school next year or this fall. Funny note, by the way, because the president just tweeted, and we haven't talked about this, but as you know, in 2016, I worked for Carly Fiorina's campaign. And today an Atlantic piece came out that she was going to vote for Joe Biden. I don't know if you saw this. So the president just tweeted. And look, you know, the president gets himself in trouble over Twitter so often.

But you have to acknowledge when the tweets are funny and well done. So here's his tweet. Okay. Failed presidential candidate. Thank you, President Trump. Carly Fiorina said she will be voting for corrupt Joe Biden. She lost so badly to me twice in one campaign that she should be voting for Joe. No complaints. That's funny. I mean, that's actually a pretty funny, you know, referring for those who don't have 2016 PTSD, referring to both her campaign and when she was running as Ted's vice presidential

candidate, losing to him twice in one campaign. That is funny. Yeah, that is funny. But hey, do we have a new rollout of a new talking point? Is Sleepy Joe gone and is Corrupt Joe the new one? Maybe. That's an interesting point. Did you just bury the lead there, Sarah? Maybe. Wow. Wow.

New nickname. Okay. All right. Well, let's move on from our swing state polling and coronavirus discussion to law. Big case, a big decision on the dc circuit yesterday um michael flynn motion his writ of mandamus granted um judge sullivan ordered to dismiss the flynn prosecution it was a two-to-one um it was a two to one. It was a two to one decision with Rowan Henderson in the majority, Wilkins dissenting. And Sarah, your thoughts?

I mean, my thoughts are that we should talk about this, but it's going to go on bunk. And that means that the full court, the full D.C. circuit will hear it, which is a very different looking makeup of the court than this panel. And certainly than Rao as the writer of the opinion. It takes six votes to hear it on Bonk. And the judges can do that sui sponte, meaning that they don't need Sullivan to ask since he is sort of in an awkward position as the district judge. I don't expect Sullivan would ask. The only question for me about this going on Bonk

is will Sullivan simply grant the motion, the 48A motion to dismiss before the court really gets the chance and kind of moot this thing all out? Or is he waiting to see whether they're going to hear it on Bonk before doing anything? And I think if they do hear it on Bonk,

A, I think it's likely because there's actually some real law in here. It's not so specific to Michael Flynn, actually, at all. And we'll talk about that. So I think they'll take it because they don't want this to be the sort of binding precedent on the circuit

and to the district judges. And two, because directing a district judge to do something is pretty serious. I mean, a mandamus petition is a very serious thing to direct a judge to say, here's how you're disposing of this case. thing to direct a judge to say, here's how you're disposing of this case. Yeah, this is, so this is something that I think people who don't practice law, who are not litigators, don't really grasp about this. A writ of mandamus, a request for writ of mandamus is when you say the quote is drastic and extraordinary remedy, okay? It means drastic and extraordinary. Like it should be maybe like italics or caps. How, how extraordinary, how drastic is mandamus? I have litigated until I

hung up my litigation spurs in 2015, uh, to join national review. So I was a litigator for 21 years, 94 when I graduated from law school to 2015. I never filed a mandamus petition, never filed one. And I saw some wild stuff from judges, Sarah. I saw some wild stuff. I saw some pretty blatant, what I consider to be pretty blatant bias, but I knew two things about a mandamus petition. One, it is a declaration of war against your trial judge. It's, you just, you're just right. It's not burning your bridges, Sarah. It's basically calling in a B-1B Lancer JDAM airstrike on your bridges with your... Like bridge on the river Kwai. It is detonating, re-bombing the ruins. So you better be sure you're going to get it. And to be sure you're going to get it,

usually you have to show outright corruption from the judge. You've got to show grounds that the judge should probably have recused himself, et cetera, et cetera. I mean, it's hard to do. But what the court did here, which was fascinating to me, is it basically, what the majority did is it basically went and treated mandamus as a relatively, as if, hey if hey you know this is just our opportunity to opine about what federal rule of criminal procedure 48a really means um now i could get i could without then or you know without then ordering sullivan off the case um now i could get here's where i could get to on mandamus i I could say, you know what is really unusual here is the appointment of the council for the, you know, the independent council

in essence, the solicitation of amicus briefs. Like, I could see mandamus on that. But then to step in and to say, well, we're going to issue what is a relatively routine legal opinion that would be completely available for us to issue on appeal as part of a mandamus seemed really odd to me, to be honest. Yeah, and the majority's point on that, for what it's worth, to be honest. Yeah. And the majority's point on that, for what it's worth, is that, yes, 48A says that the court, you need leave of the court to dismiss the charges. And the reason for that is because there are times, unusual sometimes, unusual though they may be, where the prosecution is trying to dismiss the charges and the defendant doesn't want them dismissed

because basically the prosecution is using this as sort of a game they're dismissing the charges but without prejudice and then bringing back charges and so the judge is there in that case to stop sort of abusive process if you will and that when both sides agree it is therefore not hurting the defendant this is supposed to be a pro-defendant 48A that, in fact, the judge does not have a role anymore. The problem with that, of course, is that that's just not what the text says. Yeah, exactly. It is not at all what the text says. I think that that's, again, so the core of the argument, thou shalt dismiss, is, again, an argument that's completely available for Flynn on appeal.

There's nothing mandamacy about that. That's just a conventional legal ruling. What is mandamacy about the – I think that's a legal term of art, Sarah. Why are you laughing? That's a legal term of art, Sarah. Why are you laughing? That's a legal term of art. No, it's a good legal term. Look it up in Black's Law Dictionary. Yeah, I think it goes back to 1647. No question.

And what's mandamacy is the extraordinary other aspects of the Sullivan ruling, which if I were Sullivan's counsel and I saw that, I would have thought it would have crossed my mind to seek mandamus. It would have crossed my mind. But the actual substantive decision on whether or not to dismiss,

that's an interesting use of mandamus, I've got to say. And it's an interesting ruling on mandamus. And I wonder if the majority has thought through what this means for mandamus in the future, because this is also not a petition that appellate court judges particularly love to hear, which is another reason why you're always reluctant to seek it, because it really is, it's almost like an active judicial discipline, if that makes sense.

Yeah, I mean, that's where Wilkins starts his dissent. It is a great irony that, in finding the district court to have exceeded its jurisdiction, this court so grievously oversteps its own. Bum, bum, bum. And then he launches from there. So I don't know.

I'm iffy on whether or not there will be en banc review. I would like to see it, actually. I'd like to see en banc review because I don't think that this is... This strikes me. So much about this case, Sarah, is unusual.

I mean, so much about it is unusual. You have the incredibly unusual decision of the DOJ to withdraw prosecution after a guilty plea has been entered and reaffirmed. You have the extraordinarily unusual Sullivan order. You have the extraordinarily unusual mandamus intervention. You know, it feels like to me that there are a number of actions taken here that have negative precedential consequences that should be straightened out. You know, at DOJ, there was something that we used to come back to. And obviously, I was at the Department of Justice during what we felt were pretty extraordinary times. We had the special counsel, we had Mueller, we had the president, we had so much that we were like, oh my gosh, this has never happened before. And the thing we kept coming back to is the regular order and the rules are in place,

not just for the regular times, but in fact for the extraordinary times. Because if you start making new rules as things become just unusual or you think they're extraordinary, all of a sudden a lot of things are extraordinary. And I think that this case really highlights the problem with not doing that. Because now Michael Flynn, who is an American citizen just like you and I,

has gotten extraordinary process on both sides. Maybe fair, maybe unfair, but his case, he's been treated unlike other defendants in multiple different ways

because each time someone points back and says, yeah, but this other thing was unprecedented that happened right before I got it. Yeah.

And that's, I think it's unfair both to Flynn and to every other criminal defendant, frankly, that this case is getting

the treatment that it's getting. And again, I actually don't think it's all pro-Flynn or all anti-Flynn. It's just a lot of lack

of regular order. Yeah. Exactly. Exactly. I think that is about as well said as I can imagine. And a perfect segue from another question about what is regular order to the Supreme Court opinion today, which is. Immigration. issue. I mean, immigration obviously is a hot button issue. This case is important, but not necessarily a hot button case. Basically what's in play here is to what extent, what do,

what processes do when someone seeks a claim asylum in the U.S.? And does a writ of habeas corpus entitle an asylum claimant to extraordinary relief? Why does this matter to those whose eyes are already glazing over? One of the areas of immigration law that is most in need of addressing and most in need of of addressing and most in need of comprehensive lawmaking, I believe, I'd be interested in your thought, is asylum law. This is where a person... It's a huge problem. It's a big problem. People come into the country unlawfully, they're detained, and they immediately claim asylum on the basis that they are subject to particular risk of for people fleeing persecution in their home countries is something that America has long done. But there's also circumstances in which people are, shall we say, gaming the system. And there's also some gaps in the law, perhaps. Exactly. You know, we don't count

economic asylum. It has to be asylum based on your identification with a group. It could be religious, it could be political, but you're being persecuted because you belong to something else. And so, for instance, if the economy is terrible, there's gangs ravaging your home country and killing people more or less indiscriminately and your murder rates through the roof and you can't feed your family that's not grounds for asylum so there is no economic asylum and there is no generalized violence asylum right uh and that accounts for a lot of the migration in the world right now is people trying to keep their children alive with, you know, food and not being killed through what I'm calling now indiscriminate violence, whether it's MS-13 and

the triangle or, you know, plenty of violence in other countries. And our law just simply does not account for that. And I'm not saying that it should, but that's where a lot of the people, they're claiming asylum because they do fear going back to their home country. Yeah. But our law is very specific on what that fear needs to be predicated on. Yeah, that's an interesting, you raise a really good point. And it sort of maps with some of the critiques that we've made, and I'm going to extend not just into immigration, but some of the legal structures around even like the law of armed conflict are built. doesn't quite exist anymore that were built around a world with very strong nation states that were um particularly during the cold war times sort of falling under one of two

great competing ideologies and ideas you know sort of the capitalist democratic west and the communist warsaw pact uh and and uh chinese communist east and there you know in that Warsaw Pact, and Chinese Communist East. And in that circumstance, there was a sense that asylum was something that protected you from an actually oppressive government. So if the government is oppressing you because of your religion, if the government is oppressing you because of your commitment to democratic ideals we were the beacon we were the beacon of hope for people who are facing that kind of oppression and that kind of persecution well what happens if the strong nation-state that the bonds of strong nation-states start to collapse and what if the lawlessness begins to reign um you're just as dead if you're killed by MS-13 as if you're killed by a sort of a

communist vigilante squad. But the law is set up to help you if you're going to be the victim of a communist. It is not set up to help you if you're going to be the victim of a crime. And that's just the way the law is right now. And, you know, part of the question is for our democratic processes, should it continue to be like that? Um, but that's not what the court was talking about. No, no, but this goes to the, this goes to the DACA case that we'll have here in a week or two, probably. Um, which, you know, we've been saying like, this was a chip, DACA. And that's because the entire immigration system is in desperate need of some overhaul. This is one piece of it. But asylum is a really important piece of it because asylum, maybe more than any other part of our

immigration system, is incredibly broken because it takes up enormous amount of resources for our immigration system. And then, and I'll have this number slightly wrong, but close to 90% of those cases are found to lack merit by the end of the asylum process. So imagine spending all of those resources and and court cases and lawyers and judge time for 90% to then be lacking merit, either because the law doesn't apply, because they were fraud, which is certainly some of them. And so that's what brings us to this court case today, which is you have these huge, huge number of cases. And does the United States government need to give everyone all of that process if they are found in close proximity to the border, in close proximity to the time that they crossed? Right. Right. And essentially what Alito does is he says, well, not essentially, he says no. And it's a 7-2.

I mean, there's different joining this part and that part, but it's a 7-2 decision overall. And Alito, so essentially what the petitioner does is he says, wait, I should have the availability of a writ of habeas corpus, which is a long-time honored constitutional concept that says, I can challenge unlawful detention, and that this detention is unlawful. The detention that I'm being subject to while my abbreviated asylum process is pending is unlawful. I should be entitled to challenge that. And Alito says, no, no, no, no, no. This is not what habeas is pending. It's unlawful. I should be entitled to challenge that. And Alito says,

no, no, no, no, no, no. This is not what habeas is for. If you go back to the original public meaning, this is not what habeas is for. No. Next issue. And then he says that I have insufficient due process. And again, Alito says, no, you have the expedited review that Congress set in place is all of the process that you're due. And this is an interesting question about due process in general, which is when we think due process, a lot of times we think trial, like due process is trial. Well, what due process really is, is notice and an opportunity to be heard. And what constitute proper notice and what constitutes, as far as timing, et cetera, and what constitutes an opportunity to be heard

is really variable depending on the liberty interest asserted. And so it is not the case that everybody who has a protected liberty interest is entitled to the full-blown due process of, say, civil or criminal trials before they're deprived of that liberty interest. And so there's an awful lot of case law out there determining how much process is due process. And in this case, essentially what the court is saying is that the process that Congress has defined and the executive branch is executing and under expedited review is all that anybody is entitled to under those circumstances. And just a nice shout out for those who are interested in the history of the suspension of the writ of habeas corpus, look no further than Justice Thomas concurring. He goes all the way back to the 1500s and follows it from there

and the excesses of King Charles II and we're off to the races. I actually am finding these concurrences very helpful. They create this nice historical guide, sort of like etymology for law. So check that out if you're interested um and then you know this fits into the larger immigration pantheon of the supreme court right now they're taking a lot of immigration cases and remember that they denied hearing that sanctuary city case out of california last week and that was interesting as well so i think you, but they've granted other cases on some of these intricacies of immigration law. So expect more immigration coming next term. You know, the court is basically having to take all these as Congress fails to do anything to fix it.

Yeah, exactly. Well, and we don't need to go back into our Congress rant. Nope. I'll just say CEG Congress rants in Advisory Opinions episodes one through 47. All right, next topic. We don't have to spend a lot of time on this, but a whole lot of conservatives,

well, I'm not gonna say necessarily conservatives. I'm gonna say right wing. There's a difference. Voices on Twitter announced kind of all at once over the last couple of days that they are heading to a new social media app called Parlay because they're fed up, Sarah, with Twitter censorship and they're heading over to Parlay. Yeah, you're going to have to explain some of this to me because, you know, when you have a new baby, you have to give up some things. I decided not to give up the podcast, but I did basically give up Twitter. I don't understand what any like what in the world, how many people are on Parlay? not Parler. So I think it's, as Ramesh Panuru tweeted out, I prefer my populist alternatives to Twitter to not have French-sounding names.

So what essentially it is, it's basically a Twitter-like platform. So there have been efforts to create alternatives to Twitter. And one of them is called Gab. I don't know if you've ever had the courage to

open up the Gab app or go to Gab.com. I believe it's Gab.com and see what's there. But if you do, Sarah, you will run screaming into the night because Gab is a horror show as an awful lot of places become when they sort of say we have no standards like we have no community standards for what you can post and so it quickly becomes just raw sewage um and so And so I think what really gave Parley, Parley v. MAGA, is what gave Parley its boost this week was Twitter decided to hide another Trump tweet.

And so Trump was threatening, I believe the quote was, serious force against protesters who were taking down statues. And Twitter said, that's threatening violence. We're going to hide the tweet. So everyone said, look, Twitter is censoring the president of the United States. We can have a discussion about whether if I have to click, that's actually censorship. I think if it is censorship, it almost defines the term de minimis. But... I disagree on that,

but I don't think it's worth it. Okay. Well, maybe we should... I think it's censorship. I just don't think... They can censor things. So they're allowed to. But I do think it's censorship

if you have to click through something. I just don't. So... Okay, well... It might be low-level censorship. I'm not saying it's... I say de minimis. I just do. So, okay. Well, we'll... So they... It might be low-level censorship. I'm not saying it's, you know... I say de minimis. De minimis.

I don't think it's de minimis. I think it's above de minimis. But I agree it's low-level. I think it's... I'm not overly offended by it. I think it almost creates what you might call like an attractive nuisance

in the sense that... Oh! That's true. I have to... It's so bad I have to click? Well, I'm clicking. I mean, you know. Sort of like when I say like one curse word on this podcast

and so Caleb marks it explicit content. Oh, I can't wait to listen to this one. And then Sarah says hell. And that was it. So that created a lot of consternation. And so people began to quote unquote head over to parlay uh curiously a lot of the people that i saw saying i'm out i'm gone twitter 45 minutes later we're still tweeting um i have never seen oh that's my favorite scene from the jerk i don't need you or

anything just this lamp i just just the lamp and golf club. I don't need anything else. Just the LAMP, the golf club, and this book. I just need this. Yeah. So I've been looking at the free speech online issue for a long time. And in fact, I have to hard out recording the podcast because I'm going to be doing a Yale seminar on Section 230 in like 18 minutes, Sarah. That was like a weird, humble brag, but also it's Yale, so it's like not. It's not. No. The Kumbaya Law School. So, I've been looking at this for a long time. And number one, I have sort of two tiers in the way I think about this. If the government is going to keep its hands off of Twitter and maintain Section 230, which is the cornerstone of free speech on the internet, it's what allows you to avoid having every site either shut off its comments and ability to participate or become gab. off its comments and ability to participate or become gab. As long as you have a hands-off,

the government's hands-off of Twitter, hands-off of Facebook, keep Section 230, I am all about having an argument about Twitter's community standards and whether or not Twitter is applying those community standards fairly, what they can do to better refine its community standards. Same with Facebook. And my general view is I would prefer as much as possible, once they decide, are we going to be family friendly? Are we going to be more edgy? What, you know, sort of what's the overall community going to be like? I would prefer that Twitter not censor right-wing speech

and leave equivalent left-wing speech up. I would prefer that. That would be my argument to Jack if we got in a room and talked about it. Say, Jack, you know, really, if you want a marketplace of ideas, don't censor one side more than you censor the other. It's fine to stop bullying. It's fine to stop harassment. Let's make that what bullying and harassment is a viewpoint neutral the way it is in anti-harassment law more broadly but if you're going to say hey i have anecdata that various

right-wingers who most often are kind of edge lordy on twitter anyway they're always like skating right up to the edge they're like come, come get me, Jack. And then Jack comes and gets them. And then they say, oh, wait a minute. We need the government to intervene. We need to create this large bureaucratic apparatus to govern the way private organizations regulate political speech. regulations regulate political speech then i kind of like a night the all the alarms start going off in my head like what are you talking about what are you talking about so on the one hand i look at the parlay and i think yep if you don't like twitter that's what you do that's what you do go somewhere else fine great on the hand, a lot of this is extremely performative, extremely hysterical panic over anecdata about some selective enforcement at

Twitter when you and I both know, Sarah, does Twitter lack for strident MAGA voices? Does Twitter lack for strident MAGA voices? I mean, no, but I'm not sure that Twitter isn't to some extent courting this as well. I think that Twitter may, in fact, be happy enough to become, let's call it the New York Times of social media platforms. And they're fine if Parlay becomes the Fox News of social media platforms. They don't mind losing some of that audience share if they can build up a more loyal and engaged following with theirs and then let that sort of rocket up as a model, as an income model. And so I think you could see social media turn into a lot like cable news where there's segmented audiences. And I think that's been really bad for the country on the cable news front. And I think it could potentially be far worse for the country if social media becomes that.

So I think this is all pretty bad. Well, I, so I'm going to, I'm going to agree and agree with part, agree in part, concur in part, and dissent in part. So can I, in concurring. Concurring in the judgment. So concurring in part, I think that the balkanization of our society is bad full stop um that the walling off of people into various silos of communication is is bad um i also think that that's happening on twitter even if twitter remains relatively open to all viewpoints on a viewpoint neutral basis. There's a really interesting study not long ago that tried to pin where did people fit on the political spectrum based on who they followed.

is a moderate because I follow about equal numbers of right and left on Twitter. I do that quite intentionally. If I follow someone on the right, I'm going to find someone else to follow on the left because I want to see what everyone's saying. That is not the norm, Sarah. That might. No. And so I think even on a relatively open Twitter, the balkanization is happening. So I agree with you. I think that's totally true. Yeah. And I agree that it's already happening on social media just because of the social groups that you run in or on Twitter

the people that you follow. But I think if we divide it out even further, that will just magnify. And also the different platforms have different user bases. I mean, if you look at Facebook, Facebook has an older user base. The

dominant voices on Facebook are right, are on the right. And Facebook is a giant platform compared to Twitter. Twitter is small compared to Facebook. And conservative voices dominate Facebook. I mean, on any... And Twitter, especially if you only look at active users on Twitter, it shrinks even further. You know, 80% of all political posts are done by an exceedingly small single digits of Twitter users.

Now, the problem with Facebook, you know, so Facebook is incredibly powerful as a communication tool within the larger kind of right-wing political movement. But if Chuck Todd is owned on Facebook, he doesn't know it. But if Chuck Todd is owned on Twitter, chances are he'll figure that out. Pretty immediately. Yeah. And so there's a different kind of communication dynamic in Twitter. I completely understand that. But different platforms have different streaks and Twitter. I completely understand that. Um, but different platforms have different streaks and weaknesses and the idea that they're all exactly the same. I think

at there, you know, you can go to Reddit, you can go to YouTube, you can go to Facebook, you can go to Snapchat, you can be, you can be the pioneer and there's, there's pioneering MAGA voices on TikTok. Oh, yeah. And so... I'm mostly there for the animal videos, though, to be honest. But the idea, true enough, the dog TikTok pages are fantastic. Oh, so great. Speaking of which, by the way, David, you have to go in a second.

Oh, I do, I do. And we need to get to our final topic. Yes. What skill do you wish you had acquired before 2020? And what is your answer? Okay. Well, someone just sent me really lovely orchids and I'm looking at them knowing that they're going to die because I have no, no ability to care for orchids. And I, I wish overall that I could have used this time for some like good gardening,

but I'm a terrible gardener. When nine months pregnant, I was out weeding my front yard and my neighbor called over and said, let me know if you need help getting up. But that's about the extent of my gardening skills is being able to pull weeds. And I really care for my slugs. At night, I go out and look at the slugs and I really like them. I got some interesting tiger striped ones. So I know I would enjoy it. I just lack the skill. I hear you.

I hear you. I thought a lot about that because as we began to shut down, you began to sort of get into your post-apocalyptic dystopian mindset. Yeah. And I became at that point, very grateful for my upbringing and my military training, like on all of the sort of basic dystopian post-apocalyptic

skill sets, I have at least decent proficiency, you know, hunting, fishing, if we, if we're reduced to gardening and you know, we've, we've run out of things to take to hunt. Like I used to tell my parents had a pretty big garden, uh, back when I was growing up, I took care of that, helped take care of that, uh, training and weapons, combat lifesaver, first aid, sort of like all of that stuff. I've kind of got it. So not got it. I mean, I'm basically okay. Um. So here's what I wish I had. I wish I knew how to write fiction. Fascinating. While you're having these late nights,

you can't sleep, what's going to happen to the world? Oh my goodness. I came up with a tremendous idea for a fantasy fiction trilogy in my head. Oh, a full trilogy. Like a trilogy.

Okay. Well, no, the first two of three. Okay. I've got the first two or three in my head. It would be amazing. It would be great if I could write fiction. I find it shocking that you can't. It seems like something that actually would come

very naturally to you and your personality. I wonder whether you're selling yourself a little short here, David. in my writing for The Dispatch and Time, et cetera, I don't know that it translates into describing like a snowscape. Well, perhaps, but maybe you just need to like take off that hat and have a different David hat and just say like that David is one David and then I have this other David writer. Yeah. I mean, you know,

it's, I have heard, so Nancy, my wife has, she has been trying to write fiction and she's been just diving into it. She's written a couple of novels now that like, I think are really good. She's, she is, but she's not published

and she has on, on, on the fiction side, she's published a ton nonfiction. And what is it that she said that some people have to write or at least three, at least three unpublished novels before they're good enough to have their first published novel. And that sounds daunting, Sarah. Yeah, that does sound daunting. So maybe what I need to do is write three novels on crap ideas and then save the good idea for the fourth. See, that's what I'm saying. That's hard.

That's hard. Yeah, okay. Well, my orchid's going to die and your novel's not going anywhere exactly exactly but i do have to go somewhere to uh a yale zoom to talk about let's call it a day section 230 yeah i'll see you monday yes we will and i expect sarah your prediction espinoza thanks for listening everybody this has been the Advisory Opinions Podcast. And please rate us on Apple Podcasts. We'd appreciate it very much.

Thanks for listening. Bye.