Advisory Opinions - Why Our Border Is Broken

Episode Date: January 30, 2024

Sarah and David dive deep into the state of immigration law and Texas Gov. Greg Abbott's legal battle with the Biden administration. The Agenda: —Amicus briefs for funsies —The asylum system problem —How to fix the crisis at the border —The border deal in the Senate —Civil War cosplay —National Guard and Texit detour —Football vs. politics redux Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French. And David, we're going to spend most of our time today doing a deep dive on immigration law. Yeah, I'm actually excited about this because I hope we're going to be able to clear up a bunch of misconceptions. And I know that virtually no one's going to be happy about this conversation. Yeah, no, literally no one. Before we do, a little legal chit chat at the top.

First off, the amicus briefs have been pouring in in that Colorado 14th Amendment case pending at the Supreme Court. The top side, and that's literally meaning, you know, where it's like A versus B. So A is the top and B is the bottom. So the top side briefs were all due. That's including people who support Trump or are neutral. And David, 49 amicus briefs. Oh, oh, you should see my inbox, Sarah. Do you have amicus briefs coming in? I have amicus briefs flowing into the old inbox. Check this one out. Check this one out. So I have a list to read, but I've only read one of the Amicus briefs so far.

I've got a list though. I'm going to read more. You're going to read more. I mean, some of them have been interesting, I suppose. Yeah, I mean, look, everyone from the League of Sportsmen to Ryan Binkley 2024 presidential campaign is getting in on the action. So yeah, future episode, look, we're not going to read all 49 of the top side and however many dozen are going to come in on

the bottom side in favor of Colorado. But we're going to skim a lot of them and see if there's anything interesting out there. A lot of brief skimming going on. Which is, frankly, what the court's doing as well. We don't talk a lot about why people file amicus briefs. And first of all, there's a unique argument that wasn't made by either of the two parties, and we represent a unique interest, and you may not have thought of this. Sometimes there's academic arguments, you know, the history of whatever thing that someone's going to dive into that, again, maybe neither of the parties have expertise in. But increasingly what we've seen happening are amicus briefs pouring into the Supreme Court because it's fun to say you wrote an amicus brief in the case and they actually don't particularly represent any new argument or new position of any kind basically and this is sort of a

i don't know an uncharitable way to phrase it david oftentimes it's a fundraising gimmick for yeah outside groups yeah you know hey we filed in this case. Look, we're in the headlines. Yeah. And we're in the fight. We're in the fight. Yeah. Yeah. So, and you know, it's fundraising for politicians, for, you know, state AGs, for nonprofit groups. I mean, it's like everyone's getting in on it. I think we've already reached, though, the peak of amicus for funsies. And I think we are going to see that, like, tick down because they haven't been making a difference. The court hasn't been citing them. They, you know, what's the point? And I think donors are getting a little smart to the whole thing. So, look, is it going away tomorrow? No, but I think we've probably reached the peak. Well, you know what's not going away, at least for the time being? Historian amicus briefs. Well, those are fun. I like them. Yeah, those are fun. That's part of the text history and tradition onset. And so now we're just seeing the history pouring in, just pouring in. And as it pours in, now there are some things that are more

clear than other things, but as has been predicted on this podcast many times, it's not necessarily the case that all of that messy history clarifies as much as it obscures. So it is fascinating. Although I have found a lot of the historical discussion around the 14th Amendment, Section 3, to be more clarifying than some others, in part because it's just so obscure and hasn't been applied in state legislatures, and it hasn't been a subject of legal controversy for decades and decades. So you really are much more zooming in on a particular snapshot of time and looking at it as opposed to, say, the Second Amendment analysis, where even if you look at a snapshot of time, you're analyzing everything from a state

legislature here to a town council there, and it's just a mess. All right. Also, this past week, there was a verdict in the second E. Jean Carroll defamation lawsuit. And this time the jury awarded big time damages. Eye-popping number of what, $83 million to E. Jean Carroll to be paid out of the pocket of Donald Trump. A couple of things about that. You know, been a lot of discussion about it. No need really to dive in because there's, you know, not much to say about it. There's not much nuance or not much to explain here. 83 million, but the lion's share is punitive damages.

And the reality is that often punitive damage awards are reduced, often. And so you would expect to potentially see that happen here. So when you see the 83 million number, big number, really big number, I'm going to go out on a limb and say, probably not the final number. I think the final number will be less

and maybe by a substantial amount, but still a big amount. He's not getting out of this without paying a big amount of money. It's just, I seriously doubt it's going to be the $83 million. Yeah. And I mean, this case will not get to the Supreme Court on the correct number multiplier where punitive damages can come into effect. But the Supreme Court has generally weighed in to say more than 10 times compensatory damages for punitive damages is a due process violation, for instance. But it's been sort of a struggle because like, how so? Where from? Punitive damages, and by the way, we should, compensatory means making you whole again. Punitive is to punish you, like to make you not want to do it again.

And how we decide what's too much for punishment and things like that, that's not just left to the jury, has been a real struggle of our criminal justice system that's kind of been under the radar, frankly. Civil. Yeah. Yeah. Yeah. That's absolutely true. It's been a struggle. And you've seen it in some of the commentary. A lot of people are as well. You know, 10 to 1 is way too much. Courts generally tend to say 3 to 1 is 3 to 1. You know, the ratio that they tend to like more. If it's more than 10 to 1, it's pretty clearly out of bounds controversy around the performance of Trump's lawyer, Alina Haba. And the question that is interesting is how many of her appellate arguments has she actually preserved? some questions as to whether she's actually waived many of her grounds for appeal by not objecting and not objecting to evidence that would be otherwise objectionable. So that's sort of hovering out there in the background. So we'll see. We'll keep our eyes on it. But really, honestly, not that much interesting nuance to this case at all. So we enter immigration law through this Texas Supreme Court case. Texas had put up concertina

wire along the border. The federal government had sought to take down that concertina wire and cut it where they wanted to. So at first, a district court granted Texas a temporary restraining order against the federal government, but then it held a hearing and the district court ruled that the United States sovereign immunity had not been waived and therefore there couldn't be a temporary restraining order against the federal government. Texas then appealed that to the Fifth Circuit. The Fifth Circuit said, nope, just kidding. Texas very much can have a restraining order against the federal government. So as in the federal government cannot touch that concertina wire. That then goes to the Supreme Court. We mentioned this briefly on the last episode.

It was 5-4, again, in this emergency posture where we got nothing in writing. And five of the justices, including the Chief Justice, Justice Barrett, Jackson, Sotomayor, and Kagan said, yeah, no, the feds can do what they want. The four justices, Gorsuch, Thomas, Alito, and Kavanaugh, said they dissented from that decision. So let's just start here, David, because Greg Abbott then comes out with this pretty forceful, you know, we're under invasion. And a lot of people said Greg Abbott is defying the Supreme Court by putting up more concertina wire, by not taking down the rest of the concertina wire. That's not what the Supreme Court said.

Yeah, this has been one of the more absurd news cycles. And that's saying something. Yeah. When I say absurd news cycles, lots of news outlets have appropriately and correctly reported on what the Supreme Court did. It's not that, you know, you would say the Washington Post improperly reported on what the Supreme Court decided. What we have seen is an explosion of commentary that says something like this.

Texas governor is defying the Supreme Court. That's not correct. That is not correct. We should say that 100 Court. That's not correct. That is not correct. We should say that a hundred times. That is not correct. The Supreme Court did not order Texas to stop putting out concertina wire. It did not order Texas to remove concertina wire. It just overturned an order that said that federal officials couldn't cut the concertina wire. And so in an interesting way, Sarah, this whole news cycle has allowed all of, not just Governor Abbott, but I think it's by this point about 25 GOP governors have, they're standing with Governor Abbott, right? And it's created this really weird online moment, and I'm emphasizing online because

it is an online moment, where a whole emphasizing online because it is an online moment, where a whole bunch of people are talking about nullification, secession, all of this stuff, and they're applauding these GOP governors for taking a stand. And in an interesting way, they're getting their cake and eating it too, because they're not actually creating a nullification crisis. They're not actually defying the Supreme Court, but they're getting credit on parts of the extreme right for defying the Supreme Court. So they're sort of getting courage points that, or defiance points that don't actually apply. But at the same time, you know, it's very, very, very clear that we're at an extremely tense moment. It is just not the case that these governors are in open defiance of a ruling of the Supreme

Court of the United States. But it's almost like they want to be. I mean, look, I find that I find the Supreme Court 5-4 split really interesting for obvious reasons. You have the chief and Barrett on one side. You have Kavanaugh, who's been in the majority the most often on the other side. But we don't know whether this was a process point or a substance point. But look, just take out all of the nonsense. A state puts up something along the U.S. border, and the question is whether the U.S. can,

if it decides it needs to, like, touch that? Of course it can. Of course. That's sort of a nonsensical thing to me. Now, it doesn't get to whether Texas can put it up in the first place, which also probably is yes, but, like, the idea that the federal government wasn't going to be able to take it up in the first place, which also probably is yes. But like the idea that

the federal government wasn't going to be able to take it down is silly. But this gets to a larger political point, David, which is that 10 years ago, 20 years ago, 30 years ago, immigration has been in the news this whole time and it's been a political issue this whole time but it does feel like the political issue has turned pretty dramatically in the last two years against the sort of you know gosh you know open borders and again open borders is like a little asterisk because that's a little like defund the police there are very few people that actually say open borders but more you know loosey-goosey borders. The country seems to have turned pretty strongly against that. Even people on the center left think this is a big crisis, a humanitarian crisis, but also a crisis of our laws that you cannot just allow people to flout laws, right?

To just flood in through the border rather than wait in turn, find out who they are. I mean, in the month of January, 50 people who were apprehended at the border were on the FBI's terror watch list. Those are the dumb, dumb terror watch people who got caught. That's to say nothing of the gotaways

of which there are hundreds and hundreds a day. And yes, this is clearly in part to the busing caught. That's to say nothing of the gotaways of which there are hundreds and hundreds a day. And yes, this is clearly in part to the busing from people like Governor Abbott, where they're sending a very small portion of illegal entrants who want to get on a bus to Chicago or New York or somewhere else to those sanctuary jurisdictions that have at least said previously that they're going to guarantee all sorts of things. They're not going to work with the federal government to deport people. In some places, they guarantee housing, for instance. And now those cities are saying they're in crisis, that their hospitals are filled up, their schools are in crisis, and they do not have enough housing for the people, you know, for the Americans who

are there to then also house, again, a very, very small portion of people who have been coming over the border and that Texas has been dealing with the whole time, which for a Texan like me is incredibly frustrating because for the last 20 years, we've heard how racist we are for saying that there's a problem at the border. Well, you know, one of the ways to think about this is you have enormous numbers of people leaving communities and countries that are in a state of real chaos many times. Economies in a state of collapse, arriving to a country that's politically losing its mind. And that's also shifted.

It's worth mentioning, you know, back in the early aughts, we were talking about young men coming from Mexico. That then shifted to Northern Triangle countries. Once it was obvious that if you came with a child, that then they were not going to detain you. Well, guess how that incentive system worked. So then you saw a lot more children coming. that then they were not going to detain you. Well, guess how that incentive system worked. So then you saw a lot more children coming. That's what led to the family separation policy during the Trump administration, for instance, this idea that like, we cannot keep incentivizing smugglers basically to tell these families to bring their own children, but often not their own children. And that there's no real way to know who these

children belong to, where they're going to end up here. And we've seen the result of that where there has been an explosion of child labor at factories in the United States, and of course, even worse, sex trafficking within the United States because of that incentive system. And now we've even shifted from Northern Triangle families to Venezuela, for instance, and additional other countries. So you're playing whack-a-mole on the demand side, if you will, that even if you help the economy in Mexico or help the violence problem in Mexico, well, then it's Northern Triangle. Well, we spent a lot of resources on the Northern Triangle. Well, okay, now it's Venezuela. It's a big problem. We can't prop up every nation south of our border. We just don't

have the resources ability. Even if we tried to pour an enormous amount of resources into south of the border, we don't run those countries. It is extremely difficult for us to deal with the root causes of the immigration in. But what's happening is you have this swell of people coming in and they're landing into a system here in the U.S. that's just utterly broken. And we're going to describe some of the ways that it is broken. And then it's a system that's broken and a politics that's broken. So when Trump rises up and build the wall and everything, and there's this ideological counter-reaction on the left with the sanctuary movement and everything, there was this sort of sense that one side is saying we are anti-immigrant and the other side is saying, come one, come all.

And the other side is saying, come one, come all. And even this idea that there is, you know, even the idea that we should really limit the control, the flow of illegal entry is itself somehow racist. And so you had these two competing extremes here. One is we got to shut this whole thing down. We need way fewer immigrants. The replacement theory nonsense that you hear all over the place on the far right Twitter. And then on the other side, you had this just. Man, Sarah, it just felt like people had taken leave of their senses to give the idea that, hey, if I raise my hand and I say, look, we should know who's coming into our country and, you know it the numbers of people should come in and we should absolutely have generous humanitarian uh parole measures or asylum measures but but everything should be happening according to the rule of law and there should be an understanding that too many people at once puts a giant strain on the system even if you love every single person crossing the border,

even if you acknowledge everyone as a human being created in the image of God, it's still too much. It's just too much. And the answer to that protest that it's too much is not, you're a racist, right? And so that's what I mean where you have these really people fleeing chaos coming to a measure of political insanity. And then the sad reality is, Sarah, everyone who studies this for any length of time knows that if you're going to say, what's the key broken aspect of American immigration policy? Asylum. And you know who cannot fix asylum unilaterally? The President of the United States. Correct. Correct. And we'll take a quick break to hear from our sponsor today,

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Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. So let's back up and talk about how you get to this country. So you can apply for, you know, a green card. You can apply to come to the country. That takes forever. And you will often get denied. And it's not, we do not have merit-based immigration. We don't say, hey, we need 27 of this very specific type of engineer. Do you fit that? For instance, many, many other countries do that where you say, hey, here are the jobs we need and the expertise we need. Who wants to come fill those jobs? That is not the American system of

immigration. So that's one way you apply to immigrate here. Another way is you get a visa to visit here, but sometimes that visa can be for quite a length of time. And another way is you can present yourself at a port of entry. And it's exactly what it sounds like, right? We have ports of entry along the borders. We also have ports of entry at the airport, right? Like that's a port of entry. It's any way you can come to the United States to talk to a US official about entering the country. There's lots of visa overstays and things like that,

but that's not what we're going to be talking about today because that's not where the problem comes from. Our problem is going to come from people coming to the ports of entry at the southern border and people not going to ports of entry at the southern border and instead entering between ports of entry. So my numbers are a little bit outdated. They're a couple years old, but roughly speaking, for the people coming to the southern border, the people coming to the southern border, 85% will say that they have a credible fear of returning to their home country. Those are the magic words. Once you say that, you now

are in the asylum system. You are no longer, like any of our immigration laws, basically are suspended the second you say that. So while you may go look and find all sorts of immigration laws about how you can remove people and expedited removal and all of those things, once someone says, I have a credible fear of returning to my home country, and it doesn't matter whether they were at a port of entry when they said it or interior to the United States, although, and again, when we're talking about immigration law, there's gonna be all sorts of little asterisks and footnotes that we're not going to be able to get to everything because for instance, it matters whether you're very close to the US border or much interior to the country. But basically, once you raise your hand and say the credible fear words, everything gets suspended.

Yeah. You're no longer an illegal entrant. So you didn't commit a crime, for instance. Yeah, yeah. And so all these things you see about expedited removal or the crime of illegal entry, it doesn't matter because of our asylum system. And everyone knows that. And if you're paying $10,000 to a smuggler

to bring you to the United States, I promise you that smuggler told you how to say credible fear. Yeah. And once you say that, they don't ask any more questions. Like, you're in the asylum process. You just switch shoots. So, yes, there's now going to be a whole bunch of process you get. And by the way, at the end,

very, very few people are going to actually get asylum because they don't have a credible fear of returning to their home country. You have to have documentary evidence for that. And it has to be, it's actually, you know, pretty legally based, all things considered, David. So, for instance, a credible fear of returning to your home country has to be based on your race, your religion, your political affiliation. political affiliation. One of the things that's often come up, for instance, is domestic violence. You are the victim of domestic violence. You have a credible fear of returning to your home, but not your home country. Even if your home country, for instance, is very bad at prosecuting domestic violence. Maybe they don't send the police very quickly. Maybe they don't arrest your partner who's committing that domestic violence. But that is not a credible fear of returning to your home country, according to the United States. So our asylum rules, when you get to the end of them, aren't so bad. They're about what you'd want. And they're based on sort of a post-World War II Geneva Convention, Holocaust-related world that was then put into U.S. law in 1980.

The historical background here is, look, there was a lot of post-World War II shame in the Western world at turning away Jewish refugees during Nazi rule. And so there's just, oh gosh, Sarah, when you hear some of the stories about how America and other countries turned away Jewish refugees, it's a shocking scandal. It's a shocking scandal. It shocks the conscience now in 2024. It was still fresh then. And then the other thing about the system was that in 1980 is a very key let's put a pin in the year 1980 the world was so different when you were talking about refugees when you were talking about asylum in general what you were thinking of was people fleeing the

communist bloc to come to the united states or Western Europe. And in many ways, much of the attitude there was you would have one set of countries trying to keep repressed citizens in, and another set of countries saying, we're beacons of freedom and repressed people can have a home here. So the Berlin Wall was not to keep out East Germans. It was to keep East Germans in. And so it was this very different dynamic. And it was really designed to deal with nation-state oppression. In other words, are the organs of the nation-stateressing you um persecuting you endangering your

life etc well you fast forward 44 years to well past the fall of the berlin wall to well after the end of the cold war and this sort of um this bipolar you know bipolar world of free and communist or free aligned and communist aligned. And now we're in a situation where a lot of the issues related to immigration are not people fleeing political oppression. It's just people fleeing chaos. And the chaos is, as a practical matter, either just as or even more immediately dangerous to them. Absolutely. I mean, think of the gang violence that was presented in the Northern Triangle either just as or even more immediately dangerous to them. Absolutely. I mean, think of the gang violence that was presented in the Northern Triangle countries.

Huge, huge gang violence. There was an interesting question at one point with those Northern Triangle countries. If you had gotten on the other side of MS-13, normally localized gang violence would not be a reason for asylum. But at some point, did MS-13 run the government and the police department, et cetera, to the point that they were, in fact, the de facto governing body for some parts of these countries so that if you would testify against an MS-13 gang member or refuse to join, etc. Was that actually a claim for asylum? That was something we struggled with years ago, for instance. Although again, for the most

part now, MS-13 has been decimated, but the numbers at the border are increasing even more than ever because again, you're playing whack-a-mole with the cause of the migration. And look, I don't think we should take the approach that says asylum is only for state repression, too bad, so sad if you don't fit into that. I think we should reform our asylum system to reflect the actual oppression and violence that exists in the world and why people go from place to place. But at the same time, the economic migrant phenomenon is different. That's different. And I don't think you can sit there and say, we're going to set up a system where if you live in a substantially lower GDP country, you have a right to move to a substantially

higher GDP country. But at the same time, Sarah, what complicates all of this is in the higher GDP countries, a lot of them, quite frankly, need immigration to remain higher GDP countries because, quite frankly, again, people aren't having babies. I'm doing my part, David. I know you are. I know you are. cannot sustain. I'm doing my part, David. I know you are. I know you are. You cannot sustain this economy without more people. But, and this is maybe where we can dive into a little bit more of the law and how you fix it and how the president can't fix it. So what you would want in that situation is the thing that literally every other country has, which is a completely secure border where then people apply to come to your country and you let them in based on whether and who you need in your country. And there's a number that the government has agreed to that you need. And then you let that

number of people in who want to come. That's not what we're doing right now. So basically, if you want to fix the crisis at the southern border, there's actually only two things you need to do. Now, they're big things. But they're things that only Congress can do. One, move huge,

we're talking tens of billions of dollars into enforcement at the southern border. That's going to be detention facilities so that basically nobody is paroled into the country once they say they have a credible fear. They are kept at the border. So a lot more CBP officers, a lot more immigration judges, like hundreds, hundreds, multi times what we have now. And so huge resources into enforcement. And it's not the wall the wall alone does nothing if you don't uh speed up the asylum process and actually detain people because

you can go to a port of entry set foot on the u.s and say asylum right right so the the wall uh will would in theory help with some of the in-between ports of entry i'm not going to say that the wall is useless it's not sure but you need just huge money on the enforcement side and it's got to go to a whole bunch of stuff. Also, you have to change the asylum system. There's a variety of ways to do it. And I'm not so tied to any one way, David, except that it cannot work the way it's working. One thing that President Biden has done through a temporary rule, for instance, is say that you have to apply for asylum at the first country you get to while you're traveling to the United States, for instance.

That's one way to do it. It's clearly not helping. Because again, once you get to the United States and say you have a credible fear, the process starts. Now, we may find out later that you traveled through X country and you were supposed to apply there and therefore you're not eligible for asylum here. And now you can get put into expedited removal, but you've been paroled in the United States and good luck finding that person. And by the way, you have all these jurisdictions that have said they're not going to work with federal law enforcement to deport someone who has a deportation order. So it's basically done at that point.

So you've got to move the asylum system off U.S. soil. Here's one idea that, again, Congress could do. You have to apply for asylum at a U.S. consulate, not at the United States. That's it. You have to do it in your home country. You have to get to a U.S. embassy in your home country and apply for asylum there. But look, what the Biden administration has tried to do, all these things that haven't worked, they've tried a bunch of stuff. They're not actually twiddling their thumbs. They've tried metering, meaning only so many people can apply for asylum at a port of entry a day well

guess what then they're just going to go in between the ports of entry they've tried this thing where you have to apply for asylum in an intermediate country if you pass through some other country that does not you know discriminate based on your race or religion or whatever you're going to claim is your asylum claim but again it doesn't help if you still get to claim asylum to get into the process first. So Congress has to change the fundamental problem, which is the magic words problem. And right now, again, it's magic words and you get paroled in the United States. Even if you detain them after the magic words, and even if you have enough people to then move that asylum process from three to five years to three to five months, it's still going to be hundreds of thousands of people a month,

basically, that you're trying to do unless you fix the asylum problem. that you're trying to do unless you fix the asylum problem. And think of the construction issue alone of building humane, safe detention facilities. Holy smokes, Sarah. Because one of the things that I've seen, again, on Twitter, you're having a lot of people say, well, the law right now is you have to be detained. You have to be detained.

That's the law. The law is you have to be detained. As we know, as advisory opinions listeners know from discussion of previous immigration cases, yeah, Congress passed a law about detention. And you know what Congress did not do? It did not fund detention facilities. So you quite literally have a law that cannot be complied with because Congress hasn't funded the ability to comply. Now, that's in a part of it, but that's just a symbol of how broken all this is. And so, yes, we have to reform asylum. That's just no question.

And Sarah, that brings us to the compromise bill. And then there's another couple of legal issues I want to raise. So the Senate has put together a compromise. And so under the basic outlines of the deal, we would need to, you know, of course you need to see the fine print. It says, you know, DHS would be able to have a new emergency shutdown authority if daily migrants crossed over 4,000 in a one-week span. At the same time, so if it's over 4,000, you can then shut it down and you would say, well, how is that any different? Well, again, we'd have to look at this, but it appears from the reporting that this would be a congressional change in the asylum laws that once you cross that 4,000 mark, you could remove people even if they claim asylum after the 4,000 mark. We need to see the details. I have not seen chapter and verse on this,

but if the actual change is once you cross that threshold and once the administration executes that order and issues that order to shut down, you can then start to do something you cannot do now, which is expel people even if they make that asylum claim. And that would be a very substantial change in the law. That would be very substantial. Now, there's listeners saying, no, no, no, it would not be substantial at all of a change, I'd like to hear it. Again, need to see the precise language. But Sarah, that would, if you have the ability to remove, if Congress is giving people,

giving the administration the ability to do an expedited removal, even in the face of an asylum claim, that would be a change. A huge change. And, you know, there's lots of other problems. In fact, basically our immigration law only has problems. There's nothing working that I can find. So, David, for instance, one of the bullet points that's been released on this border deal is that any migrant caught trying to cross twice during a shutdown phase, the border is not open, would be banned from entering the U.S. for one year. I mean, that may strike you as absurd, right? Like you shouldn't be trying to cross once during a shutdown phase, but we have to catch you twice. That should tell you what the rules are now, for instance. So while it is in theory a crime to cross the border,

and remember you talked about if you say the words asylum, it's not a crime anymore. But even if you don't, even for those people who didn't get the memo, it is a misdemeanor to cross the first time. Often it's not even done as that. There's a civil fine, basically. You don't actually sort of get to that criminal part of our immigration system unless you have

already been deported once and then cross again. As in, you sort of get one free try, like one free deportation before you're even in trouble here. That's a huge problem and something Congress can fix quite easily. I'm not sure if that's part of the border deal. It doesn't necessarily look like it is. Now, this is where you get to an interesting question on fixing Congress, right, David? Which is, what if this border deal doesn't have everything that you need to fix the border? Do you still take the compromise? Even as the politics are turning against Democrats, do you wait until you have a Republican president? For two reasons. One, maybe you can get a better deal that that president will sign. Or maybe you get a president who's more interested in enforcing the deal

and actually expediting those resources to get to the southern border, et cetera. Or do you take the compromise that you can get and fight another day to fix the rest of the things that maybe aren't going to get fixed here? It's the perennial problem. It's not like there's, I think, an easy answer to that, by the way. But a lot of Republicans are saying, don't take this deal. And again,

it's a pretty substantial deal. Some additional details. So the 4,000 daily average of over one week, that would give you the authority, that would give DHS the authority to do a shutdown. If it crosses over 5,000 on a day, then DHS is required to close at that point. And so there are details in here. But yeah, it's a great question, Sarah. And as you said, it doesn't always have, there's not an easy, neat, clean answer, but I think there's context here that provides some additional guidance in the decision-making. And one piece of that context is we actually have a deal that's agreed to on a bipartisan basis in the Senate that the president's willing to sign on immigration that would restrict the flow of, that would reform asylum substantially for the first time in 44 years, right? For the first time in 44 years on an issue that we have had total failure on reaching any kind of compromise

agreement on. And then to say, nah, in 2025, we can do it better. How? Why? Reasons. Trump will do it. But wasn't he president before with a Republican House and a Republican Senate? And even setting that aside, the deal actually has to be struck in Congress. So the real question is, do you think that you're going to get so many more senators or so many more members of the House that the compromise shifts over a couple ticks. And again, David, I just want to reread this one section. And this is the summary coming from a Fox News reporter who has just covered the border tirelessly. I can't pronounce his name very well. Bill Melligen? Melligen? Melligen? Anyway, highly recommend you follow him on Twitter because he knows this stuff so well.

But as he notes in the border deal, once the 5,000 threshold is hit, that's a daily average migrant encounter of 5,000, it would require Border Patrol to immediately remove illegal immigrants they catch without processing. They would not get in to request asylum. They would immediately be removed. This includes removals back to Mexico not get in to request asylum. They would immediately be removed. This includes removals back to Mexico and deportations to home countries. This would be a massive change from current policy, which is that once an illegal immigrant reaches U.S. soil, they must be processed and allowed to claim asylum. Under this new authority, they are not

processed and they are mandatorily immediately removed once the shutdown threshold is reached. This will change everything, the incentive system and what the cartels, the resources that the cartels are willing to put into human trafficking versus drug trafficking. I mean, for many of these cartels, the human trafficking has become far, far more profitable. But if people have no chance of getting paroled into the United States and they just get turned away at the border and they keep getting flipped back and flipped back and you actually have the resources to do that at the border, we're going to smother the cartels in their cradle. Like, no one's going to pay them anymore. They're going to not have the money anymore. This has a whole trickle down effect that I wish we could start tomorrow. I'm so with you, Sarah. I'm so with you on this. This seems like such a substantial positive

change. And I've been paying attention to the discussion of it on the right, and the discussion of it on the right is just so messed up right now because it's quite obvious that a lot of people, tons of people are under the impression that Joe Biden just doesn't enforce immigration law. They think Joe Biden has the power to do that thing that I just read right now. And he doesn't. And if he tried, it would be enjoined by a court. Instantly, instantly enjoined. instantly, instantly enjoined. And so, and also, by the way, the Title 42 public health-related immigration restrictions that were put in place for COVID that allowed Trump to assume some unusual level of power doesn't work anymore. The health justification is gone. So, Title 42 isn't,

the COVID-related restrictions don't apply anymore. So you have to have Congress, and Congress has issued a, made a substantial change. And I get the argument that says, well, we, maybe there's a little more we can get here. I get that. But the argument that this isn't some kind of substantial, massive, major change is just wild to me. It's a very big change. Now, if I found out that there were some poison pill in the bill that actually undermined that paragraph that I read you, I would change my mind entirely. And there might be. I don't know of one, but there could be. There's also the what to do with the people here. I don't think this border deal touches that, as far as I know. I get the people who would be very frustrated if we then, you know, give a legal status to the people here, an amnesty of some kind, because that also then

re-incentivizes get into the country any way that you can, because eventually, you know, every 30 years or so, we give you legal status. I get that frustration also, that we just have to stop incentivizing getting here through whatever means necessary. And for me, again, I keep mentioning the cartels because I think that is such a big, big problem that we are funding with billions of dollars, our broken laws are funding violent, horrible human traffickers that have every incentive to bring small children and just drop them in the desert or give them to a sex trafficker or put them in a child labor factory, whatever it takes, because they get their money. I think, who believe that they're just all of these illegal immigrants in the United States that they were illegal when they arrived, that it was clear that you could expel them when they arrived, and they're just still here. And the reality is now that there are people who are like that, that they're illegal when they arrived and they're still here. But the core issue, and if there's one takeaway that I want listeners to take away from this, the core issue, and if there's one takeaway that I want listeners to take away from this, the core issue is that asylum system. That is the core issue. Everything else is really nibbling at the margins. And the asylum system is a lot more complicated and more broken than

people realize. And so another thing I want people to take away is the realization that once that asylum claim is made you're not an illegal immigrant anymore you're an asylum you're making an asylum claim and by law by law you're allowed to do this and so by congress by congress and so you cannot fix immigration without fixing asylum period stop, end of discussion. Can we do a little, very fast National Guard detour? Because this is, again, we've seen a lot of Civil War cosplay. People were tweeting out pictures of Fort Sumter and all of this. It's just so ridiculous. And there was this moment where you had the governor of Oklahoma was talking to, oh gosh, I forget who it was on Fox, Ducey. Anyway, I can't remember who it was on Fox, had the governor of Oklahoma is talking to, oh gosh, I forget who it was on Fox,

Ducey. Anyway, I can't remember who it was on Fox, but the governor of Oklahoma is talking about sending the Oklahoma National Guard down to Texas. And a bunch of governors are talking about sending elements of their National Guard down to Texas and sort of having a red state National Guard coalition. And then the question was raised, well, wait a minute, what happens if the state-controlled National Guard comes into conflict with Border Patrol? And oh my goodness, okay, I'm not going to deny that there aren't elements of that that are fraught with concern so long as the National Guard remains under state control. But what you have to understand is the National Guard is actually ultimately a part of the United States military. And all Joe Biden has to do is federalize the guard and you change the commander. And there was this really funny moment where the Fox host is saying the Oklahoma governor,

wait a minute, governor, if you send all your troops down there, all Joe Biden has to do is federalize them. And then they're Joe Biden's people and they're not your people anymore. And he was like, you know, he just completely changed the topic just completely. So much of this debate, Sarah, and so much of the tension around this debate is rooted in giant amounts of civic ignorance so that people think when the Oklahoma governor sends his national guard that that's his national guard. It's really, really the United States Army under the command of the commander in chief, and it can be federalized at the commander's discretion. And people don't realize this. And other thing is look these states can't actually they really

actually cannot mobilize their their national guard on an extended basis under state authority because they're when it's under that state authority you're the state's paying and that gets expensive fast so fast and so the reality is the National Guard issue, the National Guard is a Joe Biden asset at the end of the day. The governors do have control for now, but if things get tense, then Joe Biden federalizes the Guard and the Guard answers to him instantly and immediately. And guess what? That's how the Guard is trained. The Guard, yes, it absolutely does a lot of work under state control, especially when you have natural disasters and everything. But the Guard is integrated into United States command structures.

And this is a key part of our national defense. And that is absolutely, it is absolutely not Greg Abbott's army. That's not what the National Guard is. David, point of personal privilege. You wrote this great book a few years ago. And it has both, right? It's a nonfiction book, but it has these scenarios. Yeah.

By which the United States could have these crisis moments that cause a breakup. And you did one from each side. And I was curious if you could give us the version that seems awfully close to what we're seeing. Well, you know, it's interesting, Sarah, because when I actually had two versions of Texan. So I wrote a book with, and I had a CalExit chapter that was fictionalized where California leaves, and I had the Texit chapter that was fictionalized. And my initial version of the Texit chapter was completely focused around a really ugly border encounter between state and federal authority that escal that escalates out of control involves people shooting each other and um that ultimately got cut uh as being as i thought about it it seemed

i don't know almost too fantastical or uh it seemed a little bit just a little bit over the top i wanted the scenarios to be very rooted in things that people think, hey, this could actually happen. And so I actually, I had an original, I originally had it as here you had an actual really awful border encounter. It later turned into something a little bit different where you had a terrible botched arrest incident in uh california i mean in texas after you have one of these guess what joint gubernatorial statements so in my in my texas chapter you had governors and you had leaders of states uh signaling an intent to defy the supreme court of the united states resulting in an attempt to arrest one of those governors that is botched and a bloody encounter takes place and then everything falls apart from

there. But it was rooted though, the original instigator of the crisis moment was rooted in exactly something like we've seen, which is one of these big sweeping state governor's statements. one of these big sweeping state government, state governor's statements. But mine and my book was more directly defiant of the Supreme Court than this one. This one, as I said earlier, they're trying to have their cake and eat it too. But that's the crazy thing, Sarah, is when I wrote my book, I was very nervous about including the S word in the title, secession. And I was nervous about making the argument that we could reach a point where we want to fracture as a country it's one of the reasons why i wrote the scenarios to sort of show people how it could um how it would play out but i i'm

i'm not i'm not sad i put the word in the title now i'm not sad i had i spend out those scenarios now because i don't think anybody is laughing at the idea that we our politics could become so toxic that we we tear apart as a country. No, I suppose not. All right, David, one last thing before we go. We had talked at Vanderbilt about political armchair quarterbacks and football armchair quarterbacks. And you thought the delta between actual knowledge and perceived knowledge was further apart in the political arena than it was in the football arena. And we got this amazing email from an actual former football player. I know it's an amazing email, but I'm going to push back against it, but go.

So you already know what he's going to which is like nope clearly the gap in football is much larger and he has this incredible paragraph that i'm gonna read to listeners please read it on a given play does any armchair qb you know notice the safety rotation combined with the press coverage to see a likely boundary corner blitz coming which really means you're likely getting a cover one shell depending on a of variables, but this is just a hypo. And the play side receiver is now hot and he and the QB must notice and signal one another. And the offensive line should likely check to a slide pro knowing they're going to have to leave one unblocked and the RB has to abandon his original assignment because he's got to chop the backside DE if the line is sliding the protection well first of all i'm not

one of those people who thought i knew a lot about football but that paragraph sure brings it home for me and so david i uh he convinced me i'm now wholly on the the delta is bigger and people who think they know about football but actually don't know much about how to really play professional football compared to in politics, where obviously there's still a huge delta between what the average person thinks they know about politics and someone like me who's worked on a lot, a lot of campaigns. But yeah, I'm convinced you're wrong. No, I'm so right. Okay. At one point, Sarah, more people knew Randy Jackson was a judge on American Idol than knew John Roberts was Chief Justice of the United States. As a general matter, when you're talking to folks about politics, the analogy here, what my contention is, well, you might not know all of that granular detail. You can generally know a pretty good degree of confidence that, for example, if my quarterback

is getting sacked a lot, we need to either do something about the offensive line or ask whether the quarterback is hanging onto the ball too long. Now, you may not know any of those super granular details, but in politics, if I'm going to use a sort of a comparison to show the gap, the civic ignorance in this country is so vast that it's as if I said about, as if I was talking about the Lions Chiefs games, I mean, the Lions 49ers game last night, that if I said, you know, the real problem is that the Lions didn't bring in their relief pitcher and they didn't shoot enough three-pointers. That's what I'm talking about. Like, the amount of ignorance that exists out there amongst people who have extraordinarily

strongly held opinions can be mind-blowing. Man, okay, you're kind of bringing me back over to the other side, in part because I've had pretty frustrating conversations about this immigration stuff where people think that Joe Biden, and by the way, this is not to defend Joe Biden's policies at the border whatsoever. But they think that Joe Biden has a lot more power than he does. They think that there's very different laws to turn people away than there are. They don't seem to know that once you claim asylum, you didn't commit a crime anymore.

And you're right. That is pretty frustrating to then have really, really strong opinions about how we shouldn't do this border deal because Biden could just do all this and fix the border on his own. That's more, and that's more like, that's less relief pitcher. And that's more like, why didn't the Lions just get to the 50 yard line? Cause then they would have gotten four more points. Or, you know, what the Lions really should have done

is throw a pass on fifth down. Yes, yes. You know, like, I mean, that's what it's like. What the Lions really should have done is throw a pass on fifth down. Yes. Yes. You know, I mean, that's what it's like. Okay. So I think he's on to something here, which is that people overestimate their knowledge of football. And then, in fact, they have no clue what it's like to play professional football and what's actually happening on the field.

I'm with him. But that the base level of knowledge about football is higher than the base level of knowledge about politics. And it's not close. I mean, it's, your typical sports fan, for example, knows the rules of the sport. I mean, that's the, that's what I'm talking about here. And, you know, it's just, and then imagine, imagine that not only do you, you're going to say, you know what, we should actually fire the general manager, fire the coach, and I think we should take a bulldozer to the stadium because they did not go for it on fifth down. That's American political discourse.

All right, David, I've also given you a watching assignment american nightmare it is uh the number one show being streamed on netflix right now it's three episodes and i'm not gonna ruin it for you but i gotta tell you david you really really need to watch this i'm going to watch. Because I've got a story to tell you. I'm going to watch it. I also have feelings about the show overall and about, I don't know, everything from masculinity to law enforcement to how we raise our daughters. All of it. Oh, I can't wait.

I'm going to watch it 100%. Okay. So, listeners, this is your warning, too. You now have three days to watch American Nightmare. It's three episodes. It's like 45 minutes a piece or something. You don't have to pay a ton of attention. You'll get the gist. Yeah. I'm watching, looking forward to it. And then we're running a little long. At some point, I have a hotel experience slash question to ask. Oh, I can't wait because you seem to have a real,

you're like the equivalent of fifth downs when it comes to your hotel experience, what you think a hotel experience should be. I just want to know how you would handle the situation, Sarah. Because I think I handled it incorrectly. It's not a story that's dramatic where there is a way i could have handled it where it could have been a dramatic story but i did not choose that path and the only end result was i had like zero zero sleep at all for one entire night you handled it wrong then whatever you did you handled it wrong i know i know i know i did but that's why i wanted to ask you i told you I ended up with no hot water at the hotel we stayed at in New Hampshire, but I don't think that there was anything to do about that.

Yeah, yeah. Okay. No, and I would be interested in listener feedback as well. What should I have done? Next time on Advisory Opinions. Bye, y'all.