Strict Scrutiny - Here Come the Generals

Episode Date: December 11, 2019

Jaime, Kate, and Melissa break down the DACA argument and speak with Luis Cortes, who worked on the DACA case and is a DACA recipient himself.  They also talk about their favorite Thanksgiving sides and desserts. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome to Strict Scrutiny, your podcast about the Supreme Court and the legal culture more broadly. We are back to an almost full complement of hosts today. I'm Kate Shaw, and I'm here with Melissa Murray and Jamie Santos.

Leah has a well-deserved day off, but we'll be back for the next episode. And I know that you have heard Kate and I together for the last couple of episodes, but you haven't heard us with Jamie. And Jamie, we have missed you, girl. It's so nice to see you again. I have missed you, too. I've really been enjoying your episodes together, and I'm super excited to be here.

Well, we love the episode with you and Leah, but we are also really glad that the three of us have a chance to brew up a little pre-Thanksgiving episode awesomeness that's going to air after Thanksgiving, but we're cooking it up now. Speaking of which, I have to ask you, what's your favorite Thanksgiving side? Cornbread stuffing with sausage. That's good. Yeah, that's good. And also sweet potatoes with marshmallows. I mean, I want to say there's

like this really Midwestern side that's like a mushroom casserole with like fried onions on top. Oh yeah, with green beans. Yeah, you can do it without green beans. It's really good. Do people eat it outside of the Midwest? Yeah. Really? Okay, that's good. I think anywhere where you sell fried onions. I mean, you literally can make it with just like canned mushroom soup and then like boxed fried onions and it's the most delicious thing. Yeah, so I guess that. So a couple of years ago when we first came to New York, my mother-in-law came here and I ordered Thanksgiving all from Fresh Direct. And I think she was so appalled. Oh, my God. She's like, oh, my goodness, Thanksgiving in a box. How modern, Melissa. How was it? So, I mean, this is not a product placement for Fresh Direct, but it was actually amazing. Like, Fresh Direct rolls are so good. Like, I always keep, like, five in my freezer just on GP.

But it was actually really, really good. And I see no reason to cook a whole dinner. I am really big on Thanksgiving. It's my favorite holiday of the year. It's, like, the best part of Christmas, the food and the family, but without the stress of presents. So I usually take, like, a whole day off of work and spend the entire day cooking even before Thanksgiving Day.

I make a whole bunch of desserts. What are you making for dessert? So this year I'm making a chocolate salted caramel torte. And I'm making this like apple strudel that one of my friends, her like, you know, abuelita passed down to her from a billion years ago. So I'm very excited about it. I feel like I kind of knew this about you way before we had a podcast together because on Twitter you talked about some of your like baking escapades and I was just like, wow,

how did you do that? To be clear, I cook once a year for Thanksgiving. You go big once a year. Yeah, I never, I don't cook otherwise, but when I cook on Thanksgiving,

I cook all the things. Awesome. Do you have a dessert that you make? Okay. I cook a Thanksgiving, I cook all the things. Awesome. Do you have a dessert that you make? Cake? I cook a lot. I don't bake much. My mother-in-law makes an incredible pumpkin cheesecake that I really did. I don't like cheesecake normally, but pumpkin cheesecake, amazing. I love pumpkin anything.

Yeah, I kind of agree. Pumpkin spice, like lattes and stuff. I'm not on the pumpkin-hating train. I love all pumpkin spice things. Pumpkin cupcakes right now? That's my jam. Yeah, totally. Muffins, yeah. I make peach cobbler for this holiday. I do not get it from a box. I absolutely make it, and it's amazing.

Sounds great. Yeah. I'm hungry now. Okay, well, then we better record this. Let's hurry up. Let's get going so you can go eat. Okay, so we have a terrific show planned for everyone today. We are going to do a deep dive into the DACA oral arguments.

It's been about a week since those arguments happened, and we are going to give you all the analysis, all the tea, and also a very special interview with one of the lawyers who worked on the case, Luis Cortez, who is also a DACA recipient himself. And then we will close things down with a little bit of court culture. And so let's dive into it. So we did a lot of background on this before in our one of the episodes that Kate and I did earlier. But Jamie, if you could just get us up to speed for those who didn't listen, what's the background on this case? Sure. And so let me start with what DACA stands for, because we always use the term DACA and don't always define it. So it's the Deferred Action for Childhood Arrivals. And it's a policy that was created through an agency memorandum in 2012 through the Department of Homeland Security. And the program

allowed children who were brought to the United States as children to apply for renewable two-year periods of deferred action that would basically protect them from deportation, allow them to stay in the United States, and apply for authorization to work legally. It also would allow them to go to school. And so you'll hear about a lot of DACA recipients who went to undergrad, law school, medical school. To be eligible, and I think this is important, applicants cannot have had any felony convictions or serious misdemeanors on their record.

And there are about 700,000 DACA recipients currently enrolled. So that was created in 2012. And then in 2017, Jeff Sessions announced that he had determined that the program was unlawful and that it would be ended. So the acting Secretary of Homeland Security, Elaine Duke, she issued a memorandum rescinding DACA for that reason. And that was really the only reason she gave, that Jeff Sessions had determined it was illegal and she was bound by that decision. So that rescission was challenged. And a district court said that rescission was arbitrary and capricious.

And the court gave the DHS about three months to either better explain why it thought DACA was illegal or to issue a new decision. And I'm happy to let one of you say, because I've been talking for a minute, what happened next? Yeah. So DHS basically issues a supplemental memo from the woman who is by now the Secretary of Homeland Security, Kirsten Nielsen. And the memo basically says that Nielsen is bound by then-A.G. Sessions' determination that DACA is unlawful, but expands a little bit on the reasoning of the original Duke memo. It basically says, we remain of the view that DACA is unlawful. Even if it's not unlawful, there are serious doubts about its lawfulness. And those doubts are kind of give us another reason, kind of doubts about the litigation risk and exposure are a separate reason to move forward with rescinding

the program. And then in a very short section of the memo, there's kind of a nod to some independent policy rationales for ending the program, that DHS of a nod to some independent policy rationales for ending the program, that DHS doesn't want to adopt broad policies of not enforcing the laws that Congress has enacted. And regardless of the sympathetic circumstances of some of these recipients, those kind of considerations aren't enough to override these institutional considerations that counsel in favor of ending DACA. So it's a memo that doesn't purport to issue a new decision so much as to further explain the earlier decision, but add some additional justifications atop the original ones. So the case actually presents two important questions for the court's

review. The first one is whether or not the DACA question, like whether its rescission can be challenged in court at all, like whether the court can review it. So that's the first issue, the review requirements of the Administrative Procedure Act, which I feel has gotten a really strong airing in the Trump administration. Like we're hearing about the APA all of the time. For the administration's position, they have argued that the decision to rescind is in a narrow category of matters that courts cannot review at all. And they also say that there is a narrow category of actions under the APA that are committed to agency discretion by law, which they read as meaning that

courts also don't have a say there. So they are very stalwart that this is not a situation that is reviewable by the federal courts. If the government wins on the first question, whether the rescission decision is reviewable, that is it. The case is over, right? So full stop. However, if the court decides that there is some role for the federal courts to play in reviewing executive decisions like this one, then it must turn to the question of whether the lower courts were correct to conclude that the administration's decision to rescind the program was arbitrary and capricious and in violation of the Administrative Procedure Act. And again, that really depends on the court's view of the two memos. Is the Duke memo, which was the bare bones sort of, you know, we think this is illegal, full stop, end of story, it's fine, or whether

they believe that the Duke memo and the Nielsen memo together, which provided additional justification for rescinding the program, collectively meets the hurdles that the APA erects to decisions of the administration. And so those are the big questions here. They're really big questions of administrative law, but also, again, sort of hammers home this idea that administrative law is not this sort of dried, cut and dried, banal kind of thing. These are real people's lives hanging in the balance and sort of hanging on this interpretation of what it means to comply with the statute. Hugely. And I think, as you alluded to, Melissa, this is not the first really high-profile case

in which this particular provision of the APA has gotten quite a workout in the age of Trump. And the last big use of this arbitrary and capricious provision of the APA was the census citizenship case, which we actually talked about at some length during our very first episode. And actually, I think this case also has something in common with Trump versus Hawaii, which we actually talked about at some length during our very first episode. And actually, I think this case also has something in common with Trump versus Hawaii, which predates us, and which involve both constitutional and statutory challenges, not involving the APA at all. So the sources of law as between that case and these two cases are somewhat different. And the

tests and doctrinal formulations are also different. But I actually think there's a kind of core principle that connects all of these cases, which is basically this. What are courts supposed to do if they are faced with the executive asserting that it has some authority that might in the abstract be some authority that either the president or an administrative agency official possesses, but where the government either looks like it was motivated by some impermissible reason or where the reasons that are given just don't square with the actions that government has taken. And that's kind of the question in all three of these cases. So right now, we are sort of like one-one, right? So the Trump administration wins in the travel ban case, it loses in the census citizenship case, and this case I view as sort of the third in that trio. And I will say before we get into the kind of details of the argument, I think there's a possibility that what the court did with the census case could provide something of a roadmap in this case, because that case had this very strange kind of hybrid holding in which

the Supreme Court majority, in an opinion by Chief Justice Roberts, held that in the abstract, the Commerce Secretary had the power to add a question about citizenship. But the circumstances surrounding the case were such that the administration just did not sufficiently explain its decision. The explanation that it gave just didn't square with the actions that it took, right? This voting rights rationale that we obviously have to credit Leah any time we mention. But that this was a obviously pretextual justification for what was really driving the administration. Anyway, you know, arguably there is not a VRA type rationale offered here, but there's a rationale that feels to a lot of people, we're dubious about

the legality of the program, that doesn't totally square with the administration's true motivations. So that, I just wanted to flag at the outset. Okay, so let's dive into the oral arguments. What do we think about them? Well, should we mention quickly the amicus briefs? I know we've briefly mentioned in the past, but one of the things that these amicus briefs focus on, and there were dozens and dozens of them filed, they focused on the human stakes in the case. And there was this question that was asked by Justice Breyer that I thought really helped capture the extent of the amicus participation and why those stakes matter doctrinally. So let's play that clip here. I had my law clerks count, actually, not just the people who came in, you know, the 700,000,

they've never been anywhere else, they never have to. But there are all kinds of reliance interests. I counted briefs in this court, as I'm sure you have, which state different kinds of reliance interests. There are 66 health care organizations. There are three labor unions. There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses.

And they all list reliance interests, or most of them list reliance interests applicable to them, which are not quite the same. They're not quite the same as those of the 700,000 who have never seen any other country. And so then I did read what you just read to me. So I love this clip of Justice Breyer, because this is Justice Breyer being peak Justice Breyer. So I always tell my con law students that Justice Breyer is perhaps the court's most stalwart pragmatist. Like he's always trying to figure out like what the real stakes of the case are. He loves statistics. He loves data. And you really saw it on display here. Like I had my clerks go and count the number of briefs and talk about

I just thought it was fantastic. But I really did think it was important to emphasize, and he was trying to do that here, not just the reliance interests on the part of the DACA recipients, but these institutional reliance interests from healthcare systems and universities and corporations who had made assurances to workers and indeed in their own business models, thinking that DACA would be in place, if not for a while, certainly for the very foreseeable future. And I thought that was really important. The other thing I want to flag in oral arguments that was really interesting for me as a kind of Broadway musical buff, there were so many generals in this oral argument.

It was like Hamilton. Here comes a general, ladies and gentlemen. Here comes a general. The moment you've been waiting for. Everyone here was a general. So we have Noel San Francisco, the Solicitor General of the United States, Ted Olson, the former Solicitor General of the United States, and then finally Mike Mongan, who is the Solicitor General of California. And what just made me so upset here was that not one of the justices referred to any of these advocates as General so-and-so

and I was just waiting for that and it never actually happened. I'm super anti- They called him General Francisco, didn't they? No, I think they called him Mr. Francisco. I don't think they called him General. I was looking through the transcripts. I don't think they called him General.

They definitely didn't call the former and they definitely didn't. Oh, Olson definitely not. And Mongan? Yeah, maybe not. I know. I thought, well. I gotta tell you,'m not a I'm not a fan of uh calling someone a general unless they're actually in the military like General Francisco Jennifer General General Wall I don't

like it my cardozo colleague Michael Hertz has an incredible article that is like a screed against the practice of referring to non-military players as generals particularly I think he thinks state SGS no state SGS I think he? But I think it's a military term. Like, he's just, he's got this. It's just not respectful. I feel like it doesn't respect the office of what it is really to be a general when you got this. I don't know.

I don't like it. I don't know. If I ever became the attorney general of anything, I would want you all to call me General Murray. Would you do it? Do I have to call you Dean Murray now forever? No, you don't have to call me General Murray. Would you do it? Do I have to call you Dean Murray now forever? No, you don't have to call me Dean Murray. But if you were a general? I do. I like...

I'm going to send you this Michael Hertz piece and you may be persuaded. I think it's really unlikely I'm ever going to be in the military, so this may be my only shot at being the general. That's probably true about most of these SGs as well. Anyway, but yes, we had three generals, dueling generals. I don't think we need to go into super depth into the generals aside from that, probably. Cool. Okay.

All right. We're done. Well, can we say a little bit? Can we talk a little bit about Ted Olson? Yeah. Yeah. All right. So Noel Francisco obviously has to be there because he is the Solicitor General of the

United States, and he's defending this decision to rescind the policy. I thought the introduction of Ted Olson here was really, really interesting. So Ted Olson is arguing on behalf of the DACA recipients and the institutions who are challenging the rescission. And as you know, Ted Olson is the former Solicitor General under George W. Bush. He is a stalwart conservative. But he has made some surprising moves over the last couple of years across the ideological divide. So he famously, with David Boies, challenged on federal constitutional grounds the constitutionality of Proposition 8, which was the 2008 ballot initiative that amended the California Constitution to preclude legal recognition of same-sex marriage.

And that decision was in 2013's Perry v. Hollingsworth, which punted on the merits of the question, but actually got same-sex marriage introduced and legalized in California, not introduced, but legalized in California. And he was surprising that he was on that case, not only because he is sort of associated with the conservative legal movement, but because it was with David Boies, who had been his adversary in the 2000 case, Bush versus Gore, which, of course, was when the Supreme Court had to step in and make decisions about the viability of certain votes in the 2000 election. And I will just say that I don't know if it's exactly related or this explains Ted Olson's participation, but he is a graduate of the University of California, Berkeley's law school. The University of California system, which includes many campuses, including Berkeley's,

was one of the parties here. And so maybe that explains his participation. But I love this story that Ted Olson tells about reaching across the ideological divide. So when he came to Berkeley a couple of years ago to be the commencement speaker, he talked about his unlikely friendship with David Boies, who was also a commencement speaker. And he said that it was really important for people to not see themselves solely as adversaries, but also as sort of compatriots in a larger human project. And he spoke really movingly about reaching across the aisle. But then at the end, he said, and I also think it's really important when you're choosing friends to choose someone who has a boat. And David Boies has a very large boat. I was like, that seems like very practical advice. It also, I do have to say, it sort of seems to encapsulate some of the kind of clubby insider-ness

that people, I think, rightly criticize members of the Supreme Court for indulging in. Right, like it's, you know, at the end of the day, we're fighting hard up there, but like we're really all on the same elite team. Like, let's be honest. And that elite team takes place on a yacht. Apparently, that's proving the point, yes. Like, let's be honest. And that elite team takes place on a yacht. Apparently.

That's proving the point. Yes. So I thought that was fun. Do you know Mike Mongan? Yes. So he's a new Solicitor General in California. He is a new, he's new, he is newly the Solicitor General. He's been in that office for a few years. And yes, disclosure, Mike is a personal friend and a great lawyer and a first-time SCOTUS

advocate. And it is always wonderful to see a first-timer, and I think to sort of skip ahead, to see a first-timer who does a very effective job. And I think there is this notion that you really don't want to give first-timers a shot if you can avoid it. And obviously Olson was on the same side of the case, so it wasn't as though the entire case was being argued

by a first-time advocate. But he was representing California and the university system and sort of major players and the university system and major players in the case. And I thought he did an excellent job. So let's talk substance. As you previewed, Melissa, the first big question in the case is, can the court review the rescission decision at all? So there is a presumption of reviewability under the APA. But there's also this provision that says that certain matters are committed to agency discretion by law. And courts have read that to mean that they just aren't reviewable.

And the sort of leading case on this is a case about kind of decisions that are exercises of sort of prosecutorial discretion, decisions not to prosecute. There's a case, Hagler v. Cheney, that involves an FDA decision not to regulate death penalty drugs. And the court decides that that is outside the scope of its power to review. And the question is, is that decision, an individual non-enforcement decision, similar enough to this decision here? And of course, the two sides disagree about how similar those kinds of decisions are. And, you know, what do you guys think about, Jamie, what did you think about the way both Olson and Mongan handled the argument that courts just don't have a role in kind of even evaluating the lawfulness of an action like this? So I didn't think that Ted Olson was

particularly effective in addressing this concern. And I think the concern of many of the justices was about these type of individual enforcement decisions. So say, for example, you have an attorney general who decides, I'm going to, as a matter of kind of my own prosecutorial discretion, I'm not going to prosecute people just for having a quarter of an ounce of marijuana. And then the next AG comes in

and they're kind of a hardliner criminal enforcer and they say, well, I'm going to restart prosecuting those cases. That should, those types of decisions probably shouldn't be reviewable in at least as many of the justices thought. And Ted Olson's response to this seemed to basically be, this is a really, really important case. And there's lots of reliance interests, and there's a lot of facts here that would be very concerning. And for many justices who are going to focus on legal principles, that's not the most compelling argument. So we have this clip from a colloquy between Justice Gorsuch and Ted Olson on this point. Can you help me understand what is the limiting principle? I hear a lot of facts, sympathetic facts you put out there, and they speak to all of us. But what's the limiting principle between, you say, reviewability here for an enforcement,

a classic kind of prosecutorial discretion that one might have thought would have fallen under Heckler v. Cheney, and the example Justice Alito gave, or Heckler v. Cheney itself. What's the limiting legal principle that you have this Court adopt? Well, in this case, it's a composite of principles, a determination, a categorical determination involving a substantial number of people to make decisions based upon that. Let me just stop you there, though, because if it's categorical and a large number of people, I can think of a lot of prosecutorial decisions involving drug cases, the treatment of marijuana in our society today under federal law.

Perhaps it would be cocaine, five kilograms. Whatever's in the Attorney General memo affects lots of people on a categorical basis every day. Yes. And you're not, you, I think, would not have us review those decisions. That's, no, but may I refer to. So if it's not categorical and it's not a large number of people, what's the limiting principle? As I said, it's a combination of factors which include the government inviting people to rely upon

and make decisions based upon that policy, the provision of benefits connected with it, individuals making choices, and the Hackler case. Don't other people rely on the Attorney General guidance memos and documents. There's an entire industry in a lot of states involving marijuana that would argue they're relying on memos issued by the Attorney General that we will not enforce marijuana laws, for example. Do they now have a right to? No, I think that's completely different. They are not invited to participate in a new program to reveal the business that they're in, to come forward, to take advantage. They have a lot of economic interest at stake that I think under Fox and what we heard about earlier from Justice Breyer, they would say our economic interests are very real.

Billions of dollars are at stake. We've relied on the attorney general's guidance. I will say that on this point, I think that Mike Mungin did a better job. So, you know, he kind of pointed to this sort of oddity in the government's argument, which is the government is simultaneously contending that this decision is unreviewable because it is, in the language of the APA, committed to agency discretion by law. But actually, the argument that the administration is making is that the secretary believed that she lacked any discretion, that she was legally compelled to end the program because it was unlawful. And it's hard to square those two arguments. Something is committed to discretion by law, but you are disclaiming any discretion. And this is actually something that Justice Ginsburg sort of honed in on pretty early in the argument. A strange element to your argument, because you're arguing this is a discretionary matter.

It's not reviewable because it's committed to agency discretion. But on the other hand, you say the agency had no discretion because this program was illegal. In other words, the law requires you to drop DACA. So how can it be committed to your discretion when you're saying we have no discretion, this is an illegal program? And I thought that was a very, and that was a question that Justice Ginsburg posed to Noel Francisco. And his response was, that's no problem, Don't worry, because even aside from this, you know, DACA was unlawful reasoning that the government gave, the Nielsen memo provided a purely policy based reason. And those purely policy based reasons would usually be sufficient to take it out of being reviewable. So I think the question is going to be whether that subsequent policy reason in a, you know, penultimate paragraph of a secondary memorandum can even be considered, especially

when in that same memo, Nielsen said, I'm bound by the AG's determination that the program was unlawful. So did that kind of framing infect the later policy reasons? Yeah. And that's, I mean, I think that's a good segue, because that issue, the sort of the status of the second memo, both goes to the kind of reviewability and to the merits evaluation, right? So whether that paragraph in the Nielsen memo can even be considered is an important kind of antecedent question to whether the decision satisfies the sort of standards that the APA sets forth that agencies engage in reason decision-making and explain their reasons and don't take actions that are arbitrary or compretious or in violation of law or an abuse of discretion.

And so Justice Breyer sort of asked some questions that I thought kind of – that did get to this sort of the status of the Nielsen memo. Justice Breyer We have three hornbook rules in this case. As was mentioned, Chenery, it is a foundational principle of administrative law that a court may uphold agency action only on the grounds that the agency invoked when it took the action. Right. In which case we look to Mr. Duke's memo, not to Ms. Nielsen's. Isn't that when it took the action? And if so, I want to hear you say, no, it isn't so.

But if so, why don't we just affirm the district court, which sends it back? And if you have all these reasons and you really want to consider the reliance and all those things should be considered carefully, you can do it. One question I have about that, Kate, for you, because I know you do a lot of ad law work is, I mean, on the one hand, decisions get sent back to the agency all the time to, you know, formulate a new decision. That's what happened in the census case. Is that at all in tension with the idea that, well, this is just a secondary memo, so you can't consider it? You know, I think that there's some play in the joints. And that's why this is actually, you know, probably going to be a close case. But I think that it's this the sort of the way to best understand how all these things work together is

that an agency can't just sort of slap some additional rationales on top of decision it has previously made, it has to go through a new decision making process that those new reasons are attached to. And it didn't purport to do that here. So I think that that when it looked like the administration might try to take another run at putting the citizenship question on the census, it could only have done that and withstood scrutiny if it had actually run an accelerated new process. And it couldn't have done that in time. And I think that's kind of what DHS had to do here. But it just declined to do that. So can I just push back on Jamie's point about Ted Olson? Like, I agree, Jamie, that the

emphasis on the reliance interest was probably not as effective as it could have been. But I think and the reason I think this is I've heard him, Ted Olson, talk about this. I think one of the things he was trying to emphasize by emphasizing the reliance interest was this idea of the rule of law, that these were incredibly weighty considerations. Lots of people's lives were organized around this. And if you were going to rescind it, you actually had to follow the rules and do it the right way. Whatever procedures were outlined, you had to follow them and you couldn't cut corners. And that's exactly what the administration did. And whether or not there are kind of procedural infirmities that they can identify, the degree of engagement with these reliance

questions is just so thin, right? There are like two sentences, it's so slapdash. You know, these are sympathetic circumstances, those aren't really enough to outweigh the other considerations. And I think that both Olson and Mungin were making the point that that just can't be enough. The other thing that I thought Mungin did quite well was to say, and this goes back a little bit to the reasons I think this case is sort of thematically connected to both Trump versus Hawaii and the census case, is that the administration just hasn't taken policy ownership of this decision. And it declined to do so when it first rescinded the program, and it declined to do so when it recommitted to the original justification, and it kind of declined to do so before the Supreme Court. It insisted that it was legally

compelled to end this program as opposed to saying we are making and announcing and defending and owning the consequences of a policy choice that we don't think this class of individuals should have this status. And they've to this day declined to do that. And Mongan's point is they should have to own a choice like that and defend a choice like that. And they haven't done that here. An answer to the backlash that will inevitably come because this is an incredibly sympathetic group of people. Absolutely, which is I'm sure why they don't want to own the decision. And I guess the, and I do find that formulation that you're talking about, Melissa, compelling, but that's because, you know, I'm a super lefty liberal and I find the, this is too

important. There are too many people whose lives are on the line to take this so lightly. I didn't say I found it convincing. I just thought that's why he was doing it. Right. But I guess here's what I was about to say is that I suspect that Ted Olson was hired because he would be able to speak to these issues in a way that would appeal to the conservative justices. I think that's totally right. And I thought that the way he did it would not have done so. And I think if he would have been able to fit that into doctrinal, hey, aren't we worried about unreviewable raw agency power that can affect

millions of Americans, American businesses? That's not the kind of thing that we usually carve out from judicial review. I thought that type of framing might have been more effective. So there's one more quote that I wanted to play, which is a, you know, characteristically astute Justice Kagan line of questioning in which she is trying to pin Noel Francisco down on what exactly the administration thinks the legal problem with DACA is. Because, you know, there was a clearly faulty rationale in the AG's first memo that the Duke memo relied on, which was that the thing was unconstitutional. And that's not an argument the administration has pressed now. But they've been very vague about what exactly is unlawful about DACA. And Mongan says, you know, there's like about five different things, anything from maybe there should have been notice and comment,

and maybe there is a take care clause problem. But why is this illegal? Like, they should have to say that if that's the argument that they are making. And so Justice Kagan, I thought, really distilled that in a line of questioning. There's a big delegation, right, that says you get to make national policy. So what did DACA violate? I'm saying two things, Your Honor. First, I'm saying you don't really have to address this issue because we think all of the other reasons are more than sufficient.

But secondly, we're not saying that there's a specific provision that it conflicts with, but what we are saying is that when you adopt this kind of broad and historically unprecedented program, you need to at least locate the authority to do so somewhere in the INA. You know, they located the authority in the INA's grant of broad discretion over national immigration enforcement policy. Your Honor, I think that the most that does is it gives you the authority to set policies and priorities. But there's a big leap between that and saying that you can affirmatively facilitate violations of the INA by hundreds of thousands of individuals to whom Congress has repeatedly declined a pathway to lawful status.

I think one of the things that really is coming to the fore is Justice Kagan is, I don't know if stepping up is the right word, but she is really kind of taking charge of the liberal wing. I mean, this is, you know, perhaps a role that was occupied by Justice Stevens at one point, maybe Justice Ginsburg, but she has really taken this on. She is going to be the lion of the left for, I think, the foreseeable future. And that Margaret Talbot profile that you all talked about in the last episode, I think makes the same case. But I really thought you could see her maybe not flexing, but certainly exhibiting a lot of control and skill in trying to pin down these

arguments on the right. Totally agree. One thing that we I think we briefly talked about when we played the early Breyer clip was the reliance interest. And that was that took up a lot of time because there was really a disagreement about whether simply saying the Nielsen memo said, I took into account reliance interest. Don't worry about it. If that's enough, given the kind of magnitude of those reliance interests. And several other justices seem to say when you have this much on the line, shouldn't you, even if not as a reviewability matter, but on the merits, be required to flesh out with with more certainty and a more robust way that you actually took this into account and that you're not just kind of blowing it off and using your kind of preconceived policy

rationale. Well, it's great that you say that, Jamie, because it is a perfect segue to our guest today who has a lot writing on this as well. So throughout this litigation, the DACA proponents have emphasized the human faces behind this policy. And with that in mind, we're really excited to host as a guest one of the lawyers in the case, Luis Cortez, who worked really hard to bring these human stories to the fore. Luis is an immigration attorney who worked on the case and sat at counsel table for the argument. And his connection to the case goes beyond simply his role as an immigration lawyer. He himself is a DACA recipient who came to the United States when he was a year old. Luis, we are so grateful to you for being here.

I should also mention that Melissa is not on this part of the show because we had some technical difficulties on the first run. So we're taping a redo while Melissa is on an airplane. So Luis, thank you especially for agreeing to talk to us a second time. No, thank you so much for having me. So maybe Luis, you could start by letting us know how you got involved in this litigation at all. Yeah. So my involvement with the DACA litigation really started from the beginning back in February of 2017, when President Trump originally or initially was inaugurated and, you know, had taken that was in full swing in his presidency. And I have a client, his name is Daniel Ramirez, who was the first DACA recipient that was detained by the

Department of Homeland Security. And I thought that this was the beginning of the end for DACA, that there wouldn't be a full-out policy ending it, but it would be death by a thousand paper cuts. And so I had reached out to a few other attorneys to see if this was the new normal, if anybody else had seen this. And it's when a lawyer from public counsel, a nonprofit in Los Angeles, had contacted me saying that they wanted to help. And soon the team started to assemble with a partnership with Gibson Dunn and Crutcher, another really big law firm, and other professors joined in, including Leah Littman, who helped us in very much so in Daniel's case. And

we started digging into kind of the legal complexities of DACA from then, were the judiciary reputable? Were the standard operating procedures under what circumstances can you revoke someone's DACA, the arbitrary and capricious standard? And so we were kind of going deep into this. And because he was the first one, there wasn't any case law or really any guidance on there. And so it was working through Daniel's case that a few months later, the policy to rescind DACA happened. And we knew that the state of California had already filed a lawsuit and so did the UC regents, but no one was representing the individual interest in telling the stories of the DACA recipients themselves. And because we already had a solid team assembled, we thought it would make sense to continue with the team and file a lawsuit on

behalf of six DACA recipients that represent the hundreds of thousands of other individuals. So Luis, with your experience with your client, Daniel Ramirez, that makes me think of something the Chief Justice said during argument, which is that the only thing that was on the line for DACA recipients was work authorization. He suggested that everyone agrees that no one's at risk of deportation. And so I was wondering, especially having represented Mr. Ramirez, you know, what did you think when you heard that and if you wanted a chance to respond to that? Yeah, I mean, it's a little hard to believe and to take the government at their word that there won't start removal proceedings against what then would be former DACA recipients. I think that it would start with chipping away at some who would have very minor criminal history, like speeding tickets or maybe a driving without a license ticket,

which is very common for DACA recipients because most states don't allow individuals to get driver's license if you don't have lawful status. And then slowly chip away at that. And I remember thinking about Daniel and how that comment would give Daniel very cold comfort because he, as a former DACA recipient, DHS had no qualms to continue to pursue his removal. And it's worth noting that the reason that Daniel's DACA was taken away was because they accused him of being a gang member. And that was ultimately disproven. And even still, the Department of Homeland Security said, well, we already placed your removal proceedings. We're just going to continue on moving forward with it. Wait, so even though it was it was affirmatively disproven that it was that he was not a gang member, they didn't back down. They continued with the removal proceedings. That's right. Ultimately, what ended up happening is that they did not want to restore his DACA because he had other minor offenses

like traffic tickets and driving without a license, really minor things. And then they ultimately said, well, now we're just not going to give you back your DACA out of discretion, even though they knew this about him this entire time. And so, you know, the removal proceedings continued moving forward, and now he lost in the immigration court,

which is ultimately the fate that's going to happen to a lot of DACA recipients if we're placed into the removal proceeding process. It takes a lot to prevail in the immigration court, and it takes sometimes extraordinary circumstances to win, most of which run of the mill, the run of the mill population won't have. And so Daniel's story is really kind of the story foretold of what's going to happen to the DACA recipients if we are placed in a reasonable position. Okay, so we definitely want to talk more about these kind of potential consequences. Let's maybe take a step back. And, you know,

we're a podcast by the Supreme Court. We talk a lot about arguments that transpire inside the Supreme Court building. So we were wondering if you could tell us a little bit about, maybe to start with kind of, so you're on this team, what kind of preparation you and the team engaged in leading up to the day of the arguments? And then we definitely want to hear about the experience of being at the arguments themselves. Yeah. Yeah. So, you know, there's a lot that happens kind of leading up to the argument, a lot of moot courts, as you can tell, refining arguments at such a granular level. But one of the things that I did to kind of prepare for Supreme Court personally is this is my first time at the Supreme Court, let alone participating in a Supreme Court argument. And so I went to the Supreme Court

the day before the argument to just look at it and just be in that space and really take it in. I know that it was going to be a very emotional moment for me. And so I wanted to make sure to kind of take it in, you know, while I had a kind of chance to really focus on that. And leading up to the day of the argument, there was a march that happened from New York to D.C., you know, got us to DACA to begin with, which was activism and the activism that was done during President Obama's time that ultimately led him to unfold DACA and provide this policy. And so seeing the activism happen really reminded me that DACA was really a product of a lot of young people committing to their activism. And it really re-energized my exhausted brain in getting ready for the arguments. And then, you know, the day of the argument is, you know, when kind of

it's all hands on deck. And, you know, one thing that people don't necessarily always talk about BC is the traffic. And so we were running a little late to go in there. So we were slightly nervous about that. But then we finally made it to the Supreme Court and Ted Olson and I, who was my co-counsel that day, you know, walk into the court and, you know, kind of start getting mentally prepared for it. So how, you know, I'm sure you talked about how this was a little bit of an emotional experience for you, you know, in the hour or so right before the argument began, what did you do to kind of clear your head?

Did you go to any particular place? Did you speak with anyone that kind of got you ready? Yeah. So first, the Supreme Court has this place called the Lawyer's Lounge. And it's essentially where the people who are going to argue or are participating in the case get to kind of hang out for a little bit before you go into court. And so you're not allowed to have your phone there with you. And so my phone was away and I was taking a moment to kind of center myself and just really think about not just the technical aspects of the argument, but think about what this moment means for me and hundreds of people.

And as I'm trying to kind of gather my thoughts there, there's a person that sits next to me, which I found kind of weird because it was still kind of early on in the day. And the lawyer's lounge was very open and there was a lot of seating. So to sit next to me, I found it a little weird, but that's okay. That's like when, when you sit on the, when I sit on the bus or on the subway and it's like all empty, but there's this one dude who just sits right next to me and. Yeah. You know, you know, do you say something? So I, you know, I was kind of focused. I, you know, I kept my eyes closed and then I hear her talking to somebody else and, you know, they were having pleasantries and I was getting a little annoyed because I was trying to center myself on what is a very important time in my life, not just personally, but professionally.

And so I look over to try to give her maybe a little bit of a side eye before I move. And I realized it's Jenna Napolitano. Oh. is Jenna Napolitano. Oh! The person who wrote the memo that not just allowed me to practice law, but gave me the very basic building blocks of being able to participate in life and what got me to this work. Yeah, and so I...

Did you know that she was going to be there, that she was going to be attending? I figured that she was going to be in court. I had no idea that she was going to be there, that she was going to be attending? I figured that she was going to be in court. I had no idea that she was going to make it to the lawyer's lounge, let alone sit next to me. And so I talked to her and I told her that I was a thought recipient and that it was her memo that really impacted my life in a very big way. And I told her that if it wasn't for her memo, I wouldn't have been able to be here. And so, yeah, she, you know, she said that, you know,

when they unfolded DACA, that they had no idea what the impacts were ultimately going to be. They knew it was going to help, you know, the dreamers, but they didn't know to what extent and kind of how it would unfold. And so she said she was very happy to know that the program, you know, had the benefits that it did and that it allowed me to be at this court. And so she was very nice about it. And she was also one of your clients, right?

Yes. So she, you know, she's now the president of the UC Regents. And so we're also, you know, representing her interests. And so that, it was just a lot to wrap my head around that she was a very important person. And, you know, everyone knows in the Politano memo, yeah, she's also our client, and we have to make sure to represent her interests. So it was definitely a bit of a, like a flabbergasting moment. And I, you know, like, I, there was a lot of ways that I could think about it and so i i didn't know what to do honestly it was kind of awkward just like because i felt also just you know this emotion towards her about um putting this number out

there so i like awkwardly gave her this hug she was receptive and she you know she gave me a nice pat and said you know thank you so um yeah but it was very daunting to be standing next to such an important person and not a person who had a tremendous impact on my life and hundreds of thousands of others. And also thinking, I hope we don't mess this up as our clients. So eventually, they said we've got to start making our way to the court and we make our way to the court. And I'm walking with Ted and everybody knows Ted. And, you know, he's very he's a fixture at the Supreme Court at this point. And when we make it in, we, you know, we kind of start settling in before that, before the justices get there. One other question I wanted to ask about the argument itself. Justice Sotomayor made

a comment during the argument about how about the reliance interest and the reliance interest not being just the memo and not not being just the way that people had kind of reorganized their lives during the Obama administration. But she said that President Trump had reassured DACA recipients that, you know, everyone loves the Dreamers and we're going to take care of you. And that there had really been a change in position, even from the reliance that President Trump had provided. At the same time these arguments were happening, the president was tweeting and DHS was releasing information implying that DACA recipients were often dangerous criminals. And I was wondering, were you aware of that? And, you know, what were your thoughts on that

happening kind of as the argument was unfolding? Yeah, you know, the I think that the government, the government arguments really minimized the reliance interest that DACA recipients had, because essentially what they were saying was that because it was giving in two-year increments at a time that we shouldn't have relied on it too much. But I think it really ignores the practical realities of how the DACA program works, which is once you have DACA, so long as you play by the rules and continue to be eligible, you're expected to renew. And so for the hundreds of thousands of us who continue to be eligible and continue to be eligible, you're expected to renew. And so for the hundreds of thousands of us who continue to be eligible and continue to apply for renewal, we expected for the government's commitment to and our promise to us to continue moving forward.

And when President Trump made his statement about that he was going to treat DACA recipients with heart and that he loves the Dreamers, you know, we took him to his word. And that really was cemented when the Department of Homeland Security kept changing its enforcement priorities and kept changing a lot of memos. And the memo that it kept in place was the DACA memo. And so as it's rescinding all of these other priority memos and all these other immigration laws, DACA was kept in place and we're being communicated that DACAs are going to be treated with heart. So we're thinking that DACA is going to stick around and we can we rely on that and continue to make commitments thereafter. And so I think that, you know, saying that just because it has a two year permanence to it, I think really ignores the practical realities and the message that happened to it. I didn't know that President Trump was tweeting at the time and actually didn't find out about his speech until I think like really late in the day. And so, but I think, you know, it's a program that's supported by 80% of the population in the U.S. I mean, I can't think of anything else that 80% of the population agrees on. I think now what we're seeing is that we're seeing that they're trying to come up with a lot of other pretexts to try to demonize the program and to try to soften the blow in case DACA ends up being rescinded. Well, I was going to ask if you'll take us back a little bit, because I think that it is hearing these sort of very concrete stories. You know, Francisco, the Solicitor General, did talk in these general terms.

Everybody knows this is temporary. It's just always supposed to be a two-year program. And so reliance wasn't really justified. Can you talk a little bit about your own decision to apply for DACA, when and how you made the decision to do that, and what kinds of considerations you evaluated and weighed in making that decision? And then also a little bit about, you know, you've alluded to this some, but just how it's changed your life. Yeah, so when the DACA program came out, I was very nervous about it. And ultimately what is happening now

is really my and a hundred thousand of others' fear becoming realized, which is now the government has all of the information and we're very nervous about what they're going to do about it at this point. And what all information were you required to provide? Yeah. So the application for DACA requires us to provide all of our residential history that we've ever had since we came to the United States.

Our parents' information, our personal information, like all of our biographical information, we have to go into an ICE office. We have to provide them all of our fingerprints. They have to take our photo. And then we also have to provide evidence of everywhere where we've gone to school and showing that we've been in the United States

since we were children. So we're often giving them our bank statements, our school records, our medical records, anything to show that we've been here and contributing to our community. And so it's all of our information and all of our family's information. And so I waited a few months in order to apply because I was incredulous about what the program actually contained. Once I was approved and my work permit came in the mail, it was such a life-changing moment in that I didn't realize how heavy the fear of deportation really was and how long I was carrying it for until it was no longer there.

It, to be recognized like that and to know that you're, that, you know, there's, there's this fear that the day, that day might be your last day. It's the wrong place on the wrong time. You know, there's things like ice raids. And so you live with that and eventually it becomes normalizing. And for that to be taken away and know that you can plan for the next few years or even for the next few months, it's so liberating. and being able to know that we can be with our communities, be with our loved ones, be with our friends and the place that we grew up and call home, and knowing that we can at least enjoy that that day without fear of being deported is really the biggest benefit of DACA. One thing that I had thought of, and I'm curious to get your views on, I know that for a lot of communities who are not necessarily eligible for DACA, but immigrant communities, a lot of times their people don't report crimes that occur to them.

They don't report hate crimes. They don't report domestic violence. for girls in high school or girls in college with sexual assault still running rampant on college campuses. Was there fear of reporting crimes? Did the lack of status chill reporting to the police? And is that something that you'd fear happening again if DACA's rescinded? Yeah, having a lack of status really pushes people into the shadows and makes people not want to be acknowledged that they're here, even if a crime is committed against them.

And so a big problem that permeates in the immigrant community is a severe underreporting of crimes, whether that be domestic violence or sexual assault or even employment-based crimes, whether there's wage theft and things like that. And so it makes an already vulnerable population much more vulnerable and makes them nervous to reach out to resources. And there are some community efforts to try to bridge that. But, you know, when the rescission of DACA, I think it's going to push more people out to the margins and it's going to impact our communities in a really kind of deep way in that way. What's next for you? What are you working on now? What do you hope the future holds? Anything that we haven't covered that you want our listeners to know about the case? Yeah. Yeah. So I, you know, one of the one of the things that I think is important, particularly now, is that it is activism that got us to DACA.

And it really is going to be activism that's going to get us past DACA into something more permanent. And I think that that can't be overlooked. And so when people are asking how they can get involved, you know, what I've seen a lot is that really activism a lot of the time is what leads and the law is what follows. And so I, you know, it's what got us to the Supreme Court. And it's oftentimes what gets most cases to the Supreme Court. We saw that throughout the Civil Rights Act, the Voting Rights Act, the Voting Rights Act. It's the activism that gets us there. As for me, most of my work is around working with asylum seekers and immigrants, particularly those who are held in detention without bond. And so I am now back in lovely Seattle working to restore immigrants' rights one at a time. Thank you, Luis, so much.

This has been such a delight to be able to speak with you. And I hope you don't mind if I might hit you up sometimes for some immigration law advice on my pro bono cases. Of course. Of course. I would love to. It's been such really great speaking with you today. And we appreciate you taking out the time to be on this special episode.

Thank you guys so much. That was great, Luis. Thank you so, so much for your time. So we're almost out of time. But before we end, I want to call your attention to some things that weave together a lot of the different themes that we've talked about in this show. So just last week, there was a piece from Linda Greenhouse that appeared in The New York Times called Can the Supreme Court Save Itself? Where Linda Greenhouse argued that the DACA case, which we've been talking about, as well as the cases involving the release of President Trump's tax returns, which Kate alluded to at the beginning of the show,

may actually come before the court in the near future, providing the court with an important opportunity to show that the federal courts are not partisan playthings, but rather instruments of justice focused on the rule of law. It's a really terrific article, really interesting. But the reason why I wanted to flag it for you is that I think many of our readers may not actually know Linda Greenhouse because she is no longer regularly covering the court's docket for the New York Times. It's now covered by Adam Liptak. But Linda Greenhouse is a serious badass. She reported on the Supreme Court for The New York Times from 1978 to 2008.

She won the 1998 Pulitzer Prize for her excellent coverage of the court. And now she's left that full-time slot, but she has a bimonthly column on the Supreme Court and the law. And she's also teaching at Yale Law School, from which she received a master's in the study of law. She's also the author of one of our favorite Supreme Court reads, Becoming Justice Black Men. And she's also the author with Michael Gratz of The Burger Court and The Rise of the Judicial Right. So she's done so much. And one of the things she has most recently done is subscribe to this podcast. And I know that for a fact because

I saw her at a conference and I told her about strict scrutiny. And then she asked me how one could subscribe and I tried to explain it to her. And so then she gave me her phone and told me to subscribe her. So I did. And you did. I love it. I did. Love it. Linda, we hope you are loving this as much as we've loved your coverage of the court. And we hope that you will get a whole new generation of readers for your very excellent work. Well, that is about all the time we have today. So thanks to Melody Rowell, our producer, and Catherine Fink, who's producing this special episode for us.

Thanks also to Eddie Cooper for our intro music. We wanted to give a shout out to those of you who have reached out to us by leaving comments on various podcast platforms or on Twitter. And we also wanted to mention that there are two ways in case you'd like to support our work that you can do so. You can check out our website, www.strictscrutinypodcast.com, and pick up some sweet swag for the holidays. Or you can contribute to our GLOW campaign at glow.fm slash strictscrutiny. Until next time, have a great Thanksgiving.