Strict Scrutiny - Right for the Wrong Reasons

Episode Date: April 19, 2021

Kate and Melissa are joined by special guests Juvaria Khan, Matthew Fletcher, and Carmen Iguina Gonzalez to discuss the upcoming April sitting and the work of The Appellate Project. Follow us on Instagram, Twitter, Threads, and Bluesky

In 2015, Vladimir Putin's number one public enemy, Boris Nemtsov, was shot and killed in front of the Kremlin. He was a relentless critic of Putin, corruption, and war in Ukraine. Then he was assassinated. I'm Ben Rhodes, writer and co-host of Pod Save the World, and I'm teaming up with Boris's daughter, journalist Zhanna Nemsova, to tell his story in Crooked Media's new podcast, Another Russia.

Together, we uncover what happened to one family and an entire country and ask whether another Russia is possible. New episodes every Monday. Listen and subscribe wherever you get your podcasts. 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 necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture

that surrounds it. We're your hosts. I'm Melissa Murray. And I'm Kate Shaw. And we have a very special episode for you today coming to you live from the Appellate Project. So the Appellate Project should be familiar to you because we've highlighted their terrific work on the show in past episodes. But for those of you who might be new to the pod, the Appellate Project is an exciting new organization that is working to build and expand the pipeline of lawyers of color going into appellate advocacy. And we are joined today by several guests to help us preview the first week of the April sitting and to tell us more about the Appellate Project. So welcome to the pod, Javaria Khan of the Appellate Project, Matthew Fletcher of Michigan

State University, and Carmen Aguina Gonzalez of the ACLU. Before we get started, here's a little rundown of the show. Per usual, we will begin with breaking news, and then we'll move into the preview of next week's sitting. And then we'll finish off with some court culture, which will allow us to delve into the great work that the Appellate Project has been doing. So Kate, do you want to kick it off with breaking news? Sure, I'd be happy to. So okay, first thing, the Supreme Court decided Google versus Oracle, holding that Google did not violate Oracle's copyright on Java API, application programming

interface code, because Google's use of the code was fair use in light of the uniqueness of the API code. API code basically tells a computer the code, what to look for, how to translate commands. So there was no copyright violation. So second thing we wanted to touch also kind of in the breaking news category is that the Supreme Court vacated and remanded with an order to dismiss as moot the case involving whether President Trump could block people on Twitter. So the case became moot once Trump was no longer president. Justice Thomas wrote separately to outline some kind of interesting theories on how and why social media companies could be regulated. You know, he mostly focused on Twitter's permanent suspension of the at real Donald Trump account, which wasn't what the case was about and way post dated the events underlying the lawsuit. But you know, he definitely wanted to make it known that he thinks it might be possible for Congress to regulate platforms like Twitter as common carriers without violating the First Amendment. So this was like a fascinating and kind of garbled separate writing. Mike Dorff, I thought, had a really good column suggesting

that Thomas actually might be right in some ways for the totally wrong reasons. But it's definitely a space, you know, both in the courts and in the halls of Congress that we're going to keep a close eye on. So last Friday, April 9th, was a late night at 1 First Street, but don't fear, the Supreme Court was not having a raging kegger. Instead, they were enjoining another California measure designed to reduce the transmission of the coronavirus, this one limiting in-home gatherings to, at most, three households. In Tandon v. Newsom, the court held that this violated the religious liberty and free exercise rights of the litigants. In a five to four per curiam decision, the court actually gave reasons this time for its decision and appeared to change free exercise jurisprudence in the process. Under the current law, policies are supposed to be presumptively constitutional if they treat religious and non-religious entities alike. And this rule prohibits both secular and religious

in-home gatherings. But the court said it triggered strict scrutiny because the policy treated some comparable secular activity more favorable. And the comparable activity was the various businesses that had been allowed to open. Again, sometimes this theory is called the most favored nation theory.

We will discuss this development more in future shows, but let's just suffice to say for now that the court is bringing some pretty strong stare decisis is for suckers energy to its shadow docket. So good times. Also important, the Fifth Circuit in an en banc decision issued a very highly fractured opinion invalidating certain parts of the Indian Child Welfare Act, though reversing many parts of the district court opinion that had basically invalidated the whole act. So maybe some good news in that decision. But again, this is a really important case going forward, certainly for child welfare law and federal Indian law. Okay. So then there are a bunch of additional developments that we just want to note and basically put a pin in for more extended discussion on a later episode so that we don't lose the opportunity to discuss the April cases with our amazing guests. So we're just going to plant a note that we will come back to discussing the following

topics. Melissa, you want to start us off? Well, this week, members of Congress introduced legislation to expand the number of justices on the Supreme Court. So this delegation headed by Mondaire Jones, Hank Johnson, Gerald Nadler, and Ed Markey have made a proposal in the House of Representatives to expand the number of Supreme Court justices. But aspiring justices do not start buying new robes just yet. In some public remarks, Justice Stephen Breyer sounded like he was perhaps throwing some cold water on this court expansion party, saying that the process or proposal to expand the court risked politicizing the court in ways that would be negative and deleterious going forward. Related to all of this court structural reform

stuff, President Biden announced the formation of a new Supreme Court Reform Commission, which is tasked with studying possible federal court reforms, but not necessarily recommending any. So the commission will study the issue for 180 days. And although it is large, there are 36 people on it, it doesn't include any people who have publicly argued in favor of any of these structural reforms other than term limits. It does include those who have argued against or questioned reform proposals. Some of our past pod guests, like Ellie Mestal and future guests Ian Milhiser, as well as Mark Joseph Stern of Slate, have written pieces questioning the efficacy of this commission. So stay tuned as we hear more from them. Okay, and in the ultimate, or at least ultimate,

until the next really ultimate Cassandra of all Cassandras, on the day after Melissa's fabulous Harvard Law Review piece called Racing Roe came out into the world. And the piece, I should say, outlines how the Supreme Court might use fears or purported fears about eugenics to uphold restrictive abortion laws and ultimately to overturn Roe and Casey, the Onbank Sixth Circuit upheld an Ohio statute that it read as a restriction on abortions selected or performed because of a Down syndrome diagnosis. Justice Thomas had previously called for courts to take up review of these laws when he voted to deny cert in a case involving Indiana's similar statute, a case called Box. Notably, the majority opinion in the Sixth Circuit and all but one of the many concurrences cited the Thomas concurrence, and one judge, Judge Griffin, leaned into it by likening modern-day abortion practices

to eugenics. We will have more to say, probably a lot more to say, about this opinion. All I will say is that I usually love being right. I did not love being right this time, but I was really right. And you were really right. I really was right. And this thing feels like this thing is going on a fast track to the Supreme Court, don't you think? For sure. Yeah. So I said this would happen. Everyone said I was nuts. Not you, Kate. You and Leah had my back on this. But other people said I was just making stuff up. And here we are. So I told you.

And I doubt you expected it to happen to be this right this fast. Well, I didn't expect it to have the kind of amazing coincidental timing. I mean, literally, the article came out on Monday. And this decision dropped on Tuesday. So, yeah. So, everyone, read the article. If you have to choose, just read the article. But if you have an appetite for a lot of pages, read the article and then read the full Six

Circuit opinion and then go hide under your bed because it's scary stuff. Put a pin in all that scary stuff. We will be back to it in later episodes. Now it's time to preview next week's sitting, the April sitting. And we are so glad we have so many terrific guests here with us to help us do that. So I'm going to start with the first case. The first set of cases on deck for the sitting is Alaska Native Village Corporation Association versus Confederated Tribes of the Chehalis Reservation and Yellen versus Confederated Tribes of the Chehalis Reservation. And this is a case that involves federal Indian

law. And we are so delighted to have one of the nation's foremost experts of federal Indian law with us to discuss it. So please welcome Matthew Fletcher. Matthew is the Foundation Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He sits as the Chief Justice of the Porch Band of Creek Indians Supreme Court and as a member of the Grand Traverse Band of Ottawa and Chippewa Indians. We have it on good authority as well that he is a very popular visiting professor at the University of Michigan Law School, where he teaches Indian law and will also be teaching a class on tribal law. So Kate, do you want to tell us what this case involves? So there's the basic issue. The case is about the

proper interpretation of a very recent federal statute, the CARES Act, which was one of the coronavirus relief packages. And in that statute, which was enacted in the spring of 2020, Congress provided a great deal of coronavirus-related aid. Among other things, it gave the Treasury Secretary $8 billion of relief funds to disperse to tribal governments. And so tribal governments were defined in the statute as the recognized governing body of an Indian tribe, as Indian tribe was used in the Indian Self-Determination and Education Assistance Act, so ISDEAA. Village Corporation, as defined in or established pursuant to the Alaska Native Claim Settlement Act, which is, and the last language is important, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Okay, so that's the sort of statutory background. Well, so maybe, Matthew, this would

be a good time to sort of get your take on this. So ANSCA, as that statute is known, is part of a way to bring in indigenous Alaskans into the whole orbit of federal Indian law and, indeed, federal programs that are available to registered federal tribes. So, what's the difference between an ANC, these Alaska Native Corporations, and what are known as FRTs, the Federal Registered Tribes? Sure thing. So the Alaska Native Claims Settlement Act was enacted as sort of a form of weird social experimentation. Like, let's try something totally different in Indian law and see what happens. So there was like almost a billion dollars of cash distributed to Alaskan natives out of ANCSA as part of a land settlement agreement. It was all of Alaska that was being effectively bought, in addition to millions upon millions, dozens of millions of acres of land that would be distributed to Alaskan natives.

And what Congress decided to do is to create these corporations, Alaska Native corporations, to accept those funds. Now, there are also Indian tribes, 229 of those Indian tribes that Congress just sort of left to the side, didn't say anything in ANCSA about those tribes. So the real question is, who's the tribe and who is not the tribe? And Alaska is just different than the rest of the remainder of the United States. And it didn't have to be that way, but that's just the way Congress and the executive branches treated those tribes all along. And it took a few decades after ANCSA to really figure out who the tribes are going to be and what these corporations were in that context. And they more or less centered around the tribes that were around before as being

the actual tribes that have governmental power and the corporations as just being this other thing, sort of sui generis. Got it. Okay. That's really helpful background. And as Matthew suggests, this case arose when several tribes filed suit to enjoin the Secretary of Treasury from dispersing funds to the corporations. And the issue is whether the corporations count as Indian tribes under the Indian Self-Determination and Education Assistance Act, and therefore eligible for CARES fund relief. The Treasury Department argued that the corporations were tribes for purposes of these statutes, and accordingly, that it has the authority to disburse the funds to the corporations. The district court below agreed, but the Court of Appeals disagreed, which is how

we are here at the Supreme Court. You know, and at issue in the case, right, are these two kind of competing. So this is a case about statutory interpretation. It's a case with real, you know, very significant on-the-ground stakes, and it's also a case about kind of competing. So this is a case about statutory interpretation. It's a case with real, you know, very significant on the ground stakes. And it's also a case about kind of how the court interprets the language that Congress drafts and statutes and how statutory language kind of interacts, right? So just to pause for a second on the statutory interpretation questions in the case, you sort of have these two canons of interpretation in conflict in the argument in this case, in a similar way as you did in Facebook versus Deguit, a case that we have talked about previously just a little bit earlier this term. So one is the series qualifier canon, which basically says that in general, you read a

modifying clause that comes at the end of a sentence to modify all the preceding nouns or verbs in the sentence that precedes it. So here that would mean that the clause, which is recognized as eligible for the special programs and services provided by the United States to Indians, would also modify these ANCs, these corporations. But the canon against surplusage counsels against reading language in the definition of tribes superfluous, since ANCs haven't been formally recognized as part of these government-to-government relations for federal recognition purposes. There's also a second argument that ANCs are not governing bodies, as that phrase is used in the CARES Act. So as Kate suggested and as Matthew said, this case has real practical implications on the ground for those living

in Alaska in indigenous communities. And again, there does seem to be a sort of idiosyncratic flavor to Alaska here relative to other circumstances that might involve Native tribes. So the amicus briefs here really highlight some of those Alaska-specific issues. So there is a brief that's been filed by Alaska's congressional issues. So there is a brief that's been filed by Alaska's congressional delegation. So this includes both Senators Murkowski and Sullivan, as well as Alaska's congressional representative, Don Young. And they make clear that this whole question

of whether or not the corporations are included in the definition of Indian tribes really hangs in the balance, the whole question of how coronavirus relief will be distributed and dispersed to Native communities throughout the state. As they explain in their brief, and the brief has photographs of how health services happen in Native communities in Alaska. There are people pictured in bush planes and on snow machines and ATVs delivering vaccines to individuals. I mean,

basically, they're making clear that these corporations are an integral and vital part of the tribal health system in Alaska. And if they aren't eligible to receive federal funds through the CARES Act, all of their efforts will have to be funded through the state government, which will mean that it is necessarily more limited. So again, making clear the practical implications and making clear to the court that Alaska is different on this front. And Paul Clement, in his brief for the ANCs, highlights these practical concerns as well. He says that ANCs are the principal purveyors of benefits and services to more than 100,000 Alaska Natives, some of whom live in communities not accessible by road and cut off from basic necessities.

The Court of Appeals here had said that the state of Alaska and the state's Department of Health Services could fill this gap. But again, he's making the point that this really is something where federal funds and federal services are really needed to address some of these issues. And so the brief on the other side was filed by Riyaz Kanji. He represents several federally recognized Indian tribes, including Alaska Native Villages, who sued to enjoin what they say is the illegal disbursement of all of these funds that should rightfully be allocated to them and that are sorely needed to fund their governmental efforts to confront the public health emergency. So the tribes argue that there are other statutes that do give specific aid to organizations like ANCs,

but that this particular statute does not. And they cite McGirt, which Riaz argued as an amicus for the tribe, and one basically for the point that warnings of dire consequences are not an excuse to ignore the law, which they think clearly favors their position. Okay, so Matthew, we want to bring you in here. Again, there's the sort of dry legal questions, there are the kind of on the ground impact questions, we very much want your take on both. So you've got an article forthcoming about canons of interpretation and textualism in Indian law. We're wondering if you could just kind of tell us a little bit about that article. And then we could maybe drill down a little bit on how these issues play out in this case. Thank you so much. I'd be happy to do so. I wrote an article called

Muskrat Textualism, in which I articulate a theory of Indian law statutory interpretation, and I contrast that with basically how Indian law almost always is interpreted, what I call canary textualism. Now the muskrat in Anishinaabe, the sacred stories, the cultural stories of tribes that I come from are, is a hero. Now a muskrat is just a rodent. It's like a cute rat. And in the story of the great flood, it saves humanity. It saves all the Anishinaabe. Now, the canary is, to be contrasted, is not from Anishinaabe sacred stories. It's really from the metaphor of the miner's canary, which is usually how Indian law or Indian tribes and Indian people are described when we talk about constitutional or public law as being the

caged bird that serves as a warning to those who actually matter, right? The people in power who we really need to save. And if the canary is sacrificed, that's terrible, but at least they served as a warning to others, which sounds like a demotivational poster to me. So the canary is a caged bird, and that's how the Supreme Court and for probably 175 years, Congress thought of tribes as these passive entities that are super weak and dependent, but really they serve as a boon, a benefit to outsiders, to others, not the bird themselves. And these competing theories of interpretation, you know, the muskrat theory of interpretation would give tribes and Indian people a lot of agency about and input and how the public policy works. Whereas the canary side is just like, here's, you know, we're going to

provide these services to Indian people, canaries, just let it happen. And you can actually see this play out in the briefing, right? It's, the players are a little bit different. It's usually the state and federal government on the Canary side saying, you've got to let, you know, we're going to take control. We're going to do all this stuff for the tribes and just defer to what we want. And there's a lot of that going on with Congress and the CARES Act here. There's a lot of that going on with Congress and the CARES Act here. There's a lot of that going on in the executive branch where the Department of Treasury and Department of Interior are saying, we'll decide who gets this money.

And then interestingly enough, you align the Alaska Native corporations with that side of thinking. And a key feature of canary textualism is if you don't do it our way, bad things will happen. Here are all the public policy reasons that we're going to tell you that are going to happen. And you can see the brief that you highlighted has all of that stuff. I'm going to tell you on the other side, there's no, very little briefing on the public policy applications. They're really in, they don't call it that because I guess I just invented it, but it's a very unique form

and a new form of Muskrat analysis, which is here's the law and that's all that matters. And the text of the law in this case is very ambiguous, but the canons tend to support at least that proposition. If nothing else, it's a 50-50 toss up. But the policy implications are totally silent on that side of the ledger. And that's a really weird place to be. The policy implications in Indian law are always that if you rule in favor of tribes, if you rule in favor of tribal interests, you rule in favor of the Canary, the whole world's going to collapse.

And I think the Supreme Court's moving away from accepting those rote accusations. Now, in Alaska, there's a really odd circumstance, and there's not enough study. Nobody really knows what the policy implications are. First of all, if you take the Alaska Native Corporation side and the federal government side, and they say, well, people won't get coronavirus relief if you don't do it through the Alaska Native Corporations, ignores the fact that there are 229 federally recognized tribal governments who could receive the money and do that work themselves. It's not the state of Alaska that's going to do that. Nobody in their right mind believes that the state of Alaska is even remotely good or efficient at governing pretty much anything in Alaska whatsoever. There's also an underlay that can't be talked about and nobody will talk about it, but it's the real reason this case is actually at the Supreme Court,

has everything to do with canary textualism. Alaska Native corporations are oil and gas, are part of the oil and gas industry. They own all the land, right? They got all the land in Alaska Native Plain Settlement Act. So they're huge partners with private industry and the Alaska Native Plains Settlement Act. So they're huge partners with private industry and the federal government in terms of, you know, being a part of that, you know, that mentality, that rhetoric of energy independence from Russia and other countries, right? And they're enormous.

Some of these corporations are enormously wealthy. Now, if you take the $8 billion that was distributed to Indian country under the CARES Act, and about 30 to 40 something percent of that money is going to these hundreds of corporations who are already for-profit entities, some of whom are already wealthy, the optics of that from the 229 tribes who have nothing, and all the rest of Indian country, the 350-odd tribes other than the Alaska Native tribes, is terrible. I mean, many of these tribes really struggle. There are tribes in the Upper Peninsula, Michigan, where I live, that are receiving a few hundred thousand dollars of CARES Act money, whereas these corporate entities are going to receive

millions upon millions of dollars. So that is such a helpful lay of the land, because one of the questions I had was, why are the tribes so vociferously objecting to the prospect of the ANCs being involved here and being denominated tribes for purposes of the CARES Act. So that is an incredibly helpful primer, not just on the idiosyncrasies of Alaska, but more generally, just the whole question of how the federal government intervenes and recognizes particular tribes. To the point of canary textualism, I wonder if the courts shift toward focusing more on the terms of statutes as opposed to their policy implications is really

because of the introduction of a single justice who happens to have some experience living within Indian country and who is a professed textualist himself. So to what extent does this really all hinge on Justice Gorsuch? And what do you anticipate happening when this case is argued next week? Well, what I anticipate is it'll be a dry rendition of those canons that you described. You know, they're going to crack open Justice Scalia and Brian Garner's book on the canons. So it's going to be a riveting oral argument and we are going to be glued to our seats, right? I'm 90% sure Latin will be uttered during this argument. Good times, good times. Keep in mind, there are actually canons of construction

that are applicable on the Indian law side. And the thing about canary textualism is that because of policy reasons, because of this perception that Indian people are weak and dependent and caged birds, that it's okay to deviate from the Indian law canons of construction and just do what we want. The canons of construction that are relevant here, there's a

canon that says, in the event that there is an Indian affairs statute that is ambiguous, it is to be interpreted to the benefit of the Indian tribe. So if an Alaska native corporation is not a tribe, then the canon itself answers the question. Let's admit the statute's ambiguous. The 229 tribes, as well as all the other tribes in the US who are parties to this case, should be the beneficiary of that canon. And I doubt you'll hear much discussion about that

other than to say it doesn't apply here. The assumption of the canon not applying is rooted in the assumption that the corporations are tribes, or at least that they have some Indian affect to them, their tribal interests at play on that side of the ledger. So we can't apply the canon. And I think that's probably wrong, but it all depends on whether these corporations actually are tribes. And there's actually no reason why Congress or the executive branch could just declare tomorrow that these 300-odd Alaskan native corps are actually Indian tribes. All they have to do is say so, and they could make it happen. The ironic thing is the

Department of Justice, who has run of Indian affairs when cases get up this high on the litigation ladder, their argument hinges on Alaska Native corporations being completely ineligible for any possible tribal nationhood. And I find that kind of ironic, but that's a totally separate question. Put a pin in that. We ironic, but that's a totally separate question. Put a pin in that. We'll come back to it for a later episode. That was a totally brilliant decoding of the real stakes and interests in this case. And so thank you so much for doing that. And I want to shout out to Muskrat Textualism, forthcoming, if I'm not mistaken, in the Northwestern University Law Review. Is that right? Well, everyone pick up a

copy of that brilliant article. And thanks again for shedding some light on this important case the court is going to argue next week. Absolutely. Thank you. All right. Next up for the April sitting is Sanchez versus Mayorkas. And to help us break it all the way down, we are delighted to be joined by Carmen Aguina Gonzalez. Carmen is a senior staff attorney at the Immigrants Rights Project at the ACLU, and she previously served as a law clerk for Justice Sotomayor and as a staff attorney at the ACLU of Southern California. I'm just going to note that the Sotomayor clerks are now, I think,

numbering three as guests on this pod, leading any other chambers, and that is by design. So we're going to keep going with that. Kate, you and Leah can do whatever you like for the Stevens and the Kennedy clerks, but I'm going to keep going with this. All right. Carmen has been incredibly involved in really important immigration and criminal justice litigation, including cases seeking to have counsel appointed for minors in the immigration system. So she's the perfect

person to help us break down this case. And the question at issue in Sanchez versus Mayorkas is whether an individual who has received what is called temporary protected status may obtain lawful permanent resident status if they would otherwise be eligible for it. Carmen, can we start off with you just walking us through what temporary protected status is? You're the expert. We'd be grateful if you'd sort of help us with some definitional groundwork. Of course.

And this is something that I'm sure even before this case is something that people have been hearing about a lot for cases given the Trump administration terminating a lot of TPS designations and how that wasn't joined by the court. So just to break it down, it's a form of humanitarian relief, basically. So the INA authorizes the Secretary of Homeland Security to designate certain countries under the TPS statute based on whether it's ongoing armed conflict, it could be a natural disaster, an epidemic, or other, quote, extraordinary conditions, unquote, that basically prevent the non-citizens from safely returning to that country.

And so following that designation, it gets published in the Federal Register, then TPS is granted, usually in about 18-month increments and subject to extensions to nationals who were present in the United States as of a particular date. So important to know, it's not sort of an invitation, right? Oh, everyone from this country, come on over. It's saying people who are here can't safely return to their countries because of what's happening. So therefore, we're going to grant this form of protection. Because of that requirement that individuals be present in the United States as of a certain date, it's important to know that it's a huge proportion of the people who have a TPS

are people who entered either without inspection or overstayed a visa. So you have some individuals who were here on some non-immigrant status and thereafter applied for TPS, but a large portion of the people did not have lawful status at the time that they applied. And then also important to know TPS designation can be extended and many last for a year. So for example, TPS designation for Somalia has been renewed continuously since 1991, Honduras since 1999, El Salvador since 2001. So TPS designation, what that means for the individual is you cannot be removed, you cannot be detained, and you have the authority to work here as long as you continue to meet the requirements for TPS. So that's, you know, basically what it means for individuals.

And the provision that's at issue here is within the statute that walks through all of this sort of complicated process for TPS, there's a provision F4 that talks about, quote, for purposes of adjustment of status under a different provision of the INA, the alien shall be considered as being in and maintaining lawful status as a non-immigrant. So TPS doesn't give you non-immigrant status. It doesn't give you lawful permanent status. But for purposes of adjustment of status, that's what the statute provides, that you will be considered to be in and maintain that status. So Carmen, can you help us understand how the TPS regime interacts with the lawful

permanent resident status, which I assume means green card holders? Right, yes. So the LPRs or green card holders are, you know, like TPS, you are protected from removal, you're authorized to work, but unlike TPS holders, it means that you're permitted to reside in the United States permanently. So it's not temporary. And after a certain amount of time, and after meeting certain qualifications, you are eligible to apply for citizenship. And also being an LPR affords you some additional protection. So you routinely see courts looking at statutes differently if they affect LPRs than if they affect other types of non-citizens. So the LPR status is available only to a limited category of non-citizens. So, for instance, if you have a sponsoring family member who is a U.S. citizen or you have a sponsoring employer.

And there are also caps on the number of LPR visas that are available, although not for every category. So if you marry a U.S. citizen, for example, you're not subject to that cap. And the interaction at issue in this case is that the statute that sets out what the process is for adjustment of status, right, changing your status from a non-immigrant to a lawful permanent resident, is 8 U.S. Code 1255. And the relevant language here is that it allows for adjustment for non-immigrants who were, quote, inspected and admitted or paroled into the United States. So then the question here is how these two provisions interact. Right. So if I'm understanding correctly, right, this is about whether and which TPS recipients will be deemed or may be deemed inspected and admitted and or paroled into the United States such that they can apply for this status. OK, so let's break down the argument.

So the government is arguing that there's a difference between being admitted and being in lawful immigration status. Right. So there are some forms of status like asylum that don't actually require admission. I mean, you can be admitted, but then lose status, like if you overstay a visa. But it's just not clear that you can have lawful non-immigrant status, but not be admitted. I'll put this question to you, Carmen. So this case is part of a longer litigation arc on these questions in both federal courts and in agencies. Can you give us a little bit of a sense of the history of these questions here? Right. So it's one of these questions where both parties are arguing that, you know, the statute is clear. And in fact, there is the history of it is that courts and in the agency

itself has actually found the language to be ambiguous. And so it's you initially TPS starts in the provision that authorizes TPS about the 1990, I believe. And the agency early on takes a sort of very narrow reading of what the statute permits and basically says, as the government is saying now, only individuals who had lawful status at the time that they applied for TPS. So you were already in some other non-immigrant category. You were a visa holder and a student, only those individuals are basically covered by that statute. It was meant to say you maintain that status for purposes of adjustment later on. The question really doesn't come up to the courts until about 2011, I believe, and you see a split. So the 11th Circuit and the 6th Circuit reaching the different conclusions as to what the statute authorizes or what the statute provides. And the 9th Circuit in 2017 really issues what I think is like the first really

thoroughly reasoned going through the statute, going through other provisions of the INA, and looking at, you know, why it is that based on that reading of the statutory text, of the context, what Congress actually meant to do was provide a path for all TPS holders who are otherwise eligible for adjustment to be able to use this process through 1255. And then 2019, the Trump administration comes in, we already talked a little bit about the context of what else is happening with TPS, the termination of, you know, what had really been Democratic and Republican administrations extending TPS for many years, you know, terminating that status. So kind of part of a campaign to limit what protections are afforded under TPS. They use this really obscure process where they refer TPS case

to basically an agency. And since it was, DHS was created, I believe they've only issued about five opinions. And they refer there, this case, to basically then come out and say, actually, the statute is clear. We're going to go back to that narrow interpretation. Only people who had lawful status can seek adjustment. Otherwise, you have to leave the country and apply through a different process. Interestingly, the BIA, which is the Board of Immigration Appeals, the Department of Justice agency that you usually hear about deciding immigration questions, that's how cases usually, you know, the law usually gets interpreted in this context. They reached the opposite conclusion and they say, actually, the statute is ambiguous. We don't agree that it's clear, but we're still going to find that it's narrow for these other reasons. So it's sort of this very interesting history where the circuit courts are

split. The agency itself is split on whether the statute is ambiguous or not. And now here we are at the court with both parties, you know, trying to tell the court, no, this is really how the statute should be read. So this case will obviously bring some much needed clarity to the interpretation of the statutory scheme, but I imagine it will also have really significant practical implications on the ground. So Carmen, what will be the practical effects of this case on immigration policy? Like for example, family separation or some of the other immigration news and events that we see in the news each day? Absolutely. So what I first want to make clear is that what it actually means for individuals who are right now TPS holders, and we're talking here

about roughly over 400,000 individuals. There's 10 countries that currently have or 11 countries that currently have TPS designation. Venezuela just received it last month so that Venezuelans are not counted in that 400,000. And it's only that we're not talking about a pathway to status for every TPS holder. And I think that's very important to understand. And I think that's a mistake that the Third Circuit makes where it says this other interpretation would really just allow this pathway to permanent status for you know all these people who have TPS protection. Well the reality is that you still have to meet the statutory requirements for adjustment so you still have to have a sponsoring employer or a sponsoring relative so it's not like we're saying, you know,

now everyone who has TPS can look to 1255 and adjust their status. You still have to meet all these other criteria. And the question is, are they allowed to do that in the United States when their visa is immediately available? Or are they required to leave to their home countries, the same country that is unsafe to return to based on the TPS designation, and wait there for potentially years while their process is completed to then return back under that same status that they would have had if they were allowed to apply here. So it's just really important to keep that in mind. And because we're talking about people who have been here, I believe of those 400,000 TPS holders, over half have been here for 20 years. The vast majority have been here for over 10 years.

These are our neighbors. These are people who have worked here lawfully for years, for decades, who have family. I think it's over one quarter of a million U.S. citizen children have a family member who is a TPS holder or a member of a household who is a TPS holder. So when we're talking about family separation, it's not really just an issue that affects the border. We're talking about families that have been together for years, for decades, who all of a sudden will have to make this choice. Do I go back and wait three to 10 years in my home country until I can come back under this visa? Or do I lose this status? Do I bring my family with me to this unsafe country? I mean, it's really, really heart-wrenching

to know what these individuals are going through in this sort of limbo. And can I just pose like one or two final questions? Am I right that the Biden Justice Department, this is a case that spans the end of the Trump administration, the beginning of the Biden administration, there hasn't been a change in positions, the same sort of harsh reading that the Trump Justice Department was advancing has been continued and is being continued in this case by the Biden Justice Department. So have they made any changes in position? And if not, are there any other avenues they have that might allow them to mitigate the harshness that you were just describing? Absolutely. So it's actually, it's a position that spans even before that. So the case out of the Ninth Circuit, for example, comes out in early 2017.

So that was the Obama administration took, carried over through Trump. The agency, that sort of referral to the agency action, I think it's sort of an attempt to really entrench it, but then sort of carried over now to Biden. I mean, absolutely. The fact that you think that the circuit courts are split, the agency itself is split, the administration really has an opportunity to take a step back here and say, we will accept the ambiguity in the statute and enact better policy. We could engage in rulemaking to say there's really a gap here in the statute that allows us to direct how these applications are going to be treated. And I believe Dave Martin wrote, you know, months ago, this suggestion to the

administration and saying, there's a pathway here for you to put this case on hold before the Supreme Court and change the policy and do something better for these communities. And they unfortunately haven't done that. And just because we're talking out here about the appellate project, and we're at this event, I will just add one thing, which is that, to me, this is, it's one of the reasons why I feel so passionately about diversity in our profession, about diversity in the appellate bar, is because, you know, how, if you think about how this case is presented, and you read the party's briefs, I mean, the data is here and there about what the effect is for these communities and what this means for people. But really, we're talking about really hyper technical.

You know, what does the statute say? What does it mean to consider? of the fact that we're talking about individuals who have lived here lawfully for decades, who have U.S. citizen family members, who are integral members of our community. I mean, during the pandemic, I think it's over 130,000 of these TPS holders are essential workers, right, working in healthcare and in the food industry. And I think as lawyers, we're taught to forget about that and not talk about that and focus on the legal question. I think if you look lately at, you know, some of the cases where I feel like judges or advocates are starting to say, of course, we'll engage with the legal question and we'll do the statutory interpretation, but also let's not lose sight

about what this case is about. I think of Justice Sotomayor's concurrence in a bankruptcy case, right, saying, hey, this is affecting low-income communities. This is affecting communities of color. Or I remember being in the courtroom, Bryan Stevenson argued Madison, and him saying, you know, he goes through the Eighth Amendment, he goes through what the Constitution requires, but at the end of his rebuttal, he really tells the justices, this case is about how we treat the most vulnerable people in the system. And I think it's just that as we diversify the bars, we diversify the bench, I see a lot more of that happening.

And I think it's so important to keep us grounded and to remember what really the stakes are in these cases. It's such a great point. And particularly on the kind of regulatory change, I really hope from your lips to the Biden policymakers ears, like this is a thing they could still change course on. And I very much hope that they do. But but thank you. And and it's so helpful for all the reasons that you just provided to have you actually help us get a deeper understanding of the case. So thank you so much. All right. Shifting gears also on deck for the April sitting is a set of cases, Greer versus United States and United States versus Gary. And this

pair of cases concerns the implications of the Supreme Court's 2019 decision in Rahaf versus United States and whether or not Rahaf is retroactive to convictions that were obtained before that decision. And you'll remember, we have discussed Rahaf before because our co-host, Leah Littman, loves the Armed Career Criminals Act, and this is another ACCA case. So Rahaf interpreted a provision of the Arms Career Criminal Act, ACCA, which prohibits persons convicted of felonies from possessing firearms. And in Rehaef, the court said that an individual violates that provision only if they knew their status. That is, they knew they fell within the category of persons that are barred from possessing a firearm.

The question in Greer and Gary is whether or not the determination of whether a defendant can be retried or resentenced in light of Rahaf, so the retroactivity of Rahaf. And in Greer, Mr. Greer was convicted and sentenced under ACA, but the government didn't submit evidence at trial or at sentencing that Greer knew he fell into the category of persons who are barred from possessing a firearm. It didn't have to at the time, because this was before the Supreme Court's decision in Rahaf, and no appellate court had said that the government had to prove

a person knew that they fell within that category, persons that are barred from possessing a firearm. So it was never introduced into evidence. Now, on appeal, the government is arguing that a court of appeals doesn't have to overturn the conviction if the government points to other evidence, evidence that was not submitted at trial, that a defendant knew they fell within a category of persons that are barred from possessing a firearm. And so here, the government is relying on the pre-sentencing report, which is filed at sentencing. And in this pre-sentencing report,

it noted that Mr. Greer had several prior convictions and the court of appeals concluded that he therefore must have known that he fell within the category of persons who are prohibited from possessing a firearm. And so this kind of review is known as plain error review. So it's review of an error that the defendant did not previously raise. And the question is whether on plain error review, review in an appellate court and review of a question that wasn't decided or raised below, an appellate court can actually consider evidence that was not in the trial record. Gary, on the other hand, presents a distinct but related question. And this one is about plea agreements reached before Rahaf was decided. So when a

defendant pleads guilty to an offense, he has to do so knowingly and voluntarily. And the question here is if a court did not advise a defendant that one element of the offense was that the defendant knew that they were prohibited from possessing a firearm, whether the plea agreement is in fact knowing and voluntary. And so this issue is really significant, not just because there are lots of individuals convicted under the ACCA, and there are many convictions that would fall into this retroactivity sort of gray space, but because in the case of Gary, the sheer number of federal cases that are resolved by virtue of plea agreements is actually staggering. Well over 90%,

but some have said that it's even closer to 98% of federal criminal cases being resolved by plea agreements. So again, watch this space. Leah will be watching very closely, and we will see an acapelling resolution to this. I tried. I really wanted to. It is so hard to talk about ACA and do ACA puns without you, Leah. Melissa, you did amazing.

But it's just never the same talking about ACA without Leah. It's because I went to UVA where they literally make you listen to acapella music all the time as an undergraduate. So here. And you have something to show for it. That's the only thing I have to show for it, but yes. Okay, so two more quick cases being argued. We're not going to really preview. One, Minerva Surgical will address whether a defendant in a patent infringement case who has assigned the patent, i.e. has given the patent to someone else,

can defend against infringement on the basis that the patent is invalid. And then Second City of San Antonio versus Hotels.com asks whether district courts can reduce the appellate costs that are deemed taxable in the district court under federal rule of appellate procedure 39E. Okay, that's all we got on previews. Melissa. All right. So this is the moment we've been waiting for. It's time for court culture, and we are so excited to spill the tea on diversifying the appellate bar with our friends from the Appellate Project and Juveria Con. So again, we are taping live today with the Appellate Bar with our friends from the Appellate Project and Juveria Khan. So again, we are taping live today with the Appellate Project. It's a great new initiative that we

have highlighted on this show before. So in an earlier episode, we chatted with Tiffany Wright, an Oreck attorney, and Amir Ali, a lawyer with the MacArthur Justice Center, about the work that they were doing with the Appellate Project. And today we are joined by the founder of the Appellate Project. So welcome, Juveria. You have such an interesting background in civil rights litigation and your work as a law clerk, but how did you come to found the Appellate Project? What was the need that you were trying to fill here? Yeah, thank you so much for having me. I really came into appellate work a little bit later. I was a few years into my career in doing impact litigation, and that's when I got my first meaningful understanding about appellate work and appellate spaces.

And a couple of things really struck me. The first was just the nature of this work. There's no juries. You're deciding matters of law. So it's really a conversation between appellate attorneys and judges on what these laws mean and how they apply to all of law. So it's really a conversation between appellate attorneys and judges on what these laws mean and how they apply to all of us. And those attorneys, you know, shape the arguments and not infrequently go on to become judges. So the second thing that really struck me was the absence of diversity, especially racial diversity in these spaces, and the very clear impact that

has on those conversations and the law that is produced itself. And so, you know, I really focused on issues impacting the American Muslim community, because that's like I think many people of color driven to this work. What really drove me, it wasn't so much. These are interesting intellectual issues in the appellate space. It's because they have very significant real impact on our everyday lives. And so it was, it was, it's tough to finally be in those spaces and realize that there's very few people who look like you, I think, just to give the example of the Muslim ban litigation, you know, a case that went through so many appeals, but had almost no Muslim attorneys leading those appeals. And of course, going through so many courts, not a single Muslim

judge heard that case because there are no Article Three Muslim judges. And so, you know, to Carmen's point, the human impact of this work is so important. I think the other thing I'd say is what really drove me and sort of realizing that was taking a step back and looking at my own journey into this space. You know, I didn't know lawyers growing up. I certainly didn't know about appellate work. I found law school extremely challenging for all the wrong reasons. It ironically was not the academics. It was the culture. It was the environment. It was feeling very out of place and overwhelmed because it felt like so many of my classmates came in knowing how to navigate these spaces, having

networks, people who could guide them and tell them how to get from A to B. So I didn't learn about clerkships until a year after graduating. I went to a networking event and a very kind man came up to me and asked me, where'd you go to law school? What were your grades? What do you want to do? Why didn't you clerk? And I said, honestly, it's not for people like me. And he said, what do you mean by that? And my immediate image in my head was just the students in law school, mostly white, who just knew how to navigate these spaces. And it just felt like one more thing I didn't understand, and I didn't understand the value of it. You know, I think it's incredibly important to share resources, opportunities. You don't know what you don't know. There are so many highly qualified law students of color who just need access and opportunities to do this work.

So all of that really is what drove me to start the Appellate Project. Javeria, your point about the dearth of Muslim attorneys arguing some of these really important religious freedom cases, immigration cases, it really hits home. And I think, Matthew, you have mentioned in other contexts that there is a similar issue within federal Indian law advocacy, just the absence of Native advocates to argue these cases. Can you say more about that? Sure thing. So it's been 20 years now since an American Indian person or an Indigenous person has argued a case in an Indian law case in the Supreme Court. And it's really quite shocking. For the two decades or so before, it was something less than on average of one Native person a year would argue a case.

It used to be that if a tribe somehow found its way in serious appellate litigation, even in the Supreme Court, the tribe's attorney, who's usually in-house, would argue the case. And more and more Native people became in-house counsel for their tribes and were actually arguing cases. People like Bill Rice, who won a case in 1993 and was lauded by the court for his outstanding argument. And so, you know, another instance is a Native woman named Arlinda Locklear, who won two times in the Supreme Court in the 1980s. But tribes were losing horribly in the late 90s and into the 2000s. And this came sort of at the rise of an acknowledgement that there's this thing called the Supreme Court Bar. And the thinking was, if you're going to come back and push back on, try to win some cases in the Supreme Court again, you've got to delve into the Supreme Court

Bar and there are no Native people in that Supreme Court bar. So, you know, I think this trickles down extensively. I did a very unempirical survey of screenshots of Ninth Circuit oral arguments going back a few years involving Indian law cases, and there's probably 15 or 20 of them a year. I found three Native people who argued, three or four Native people who had argued a case in the last five years in the Ninth Circuit, compared to probably 30 or 40 non- dwindling number of cases that the court takes, I think, does have something to do with this. And then there is also this, yeah, the emergence of this so-called elite Supreme Court bar, in which it's mostly advocates who've done a ton of arguments previously. And as, you know, that becomes the norm and the expectation, there is a fear that you're going to be doing a disservice to your chances of success if you do go with an advocate who is not, you know, named Paul because they mostly are or, you know, done a number of arguments.

And I think just like it's a huge barrier to entry. And I think the justices are very much to blame actually in this. I do think that we talk a lot about, you know, amicus invitations. It's this tiny little thing, but the justices could extend these invitations in ways that diversify the ranks of the Supreme Court bar. But I think it's also, I mean, you hear even Justice Kagan, you know, about whom, you know, we always speak very favorably on this podcast. We admire her a great deal. But when she's spoken publicly, she says, we kind of want advocates who all argue in a certain way. There's a very particular style we like, and that's kind of what we want. And I think that's a problem in terms of the kinds of perspectives, modes of reasoning, right back to Carmen's point, that

the justices encounter. And I think that, you know, everything you just said really, really speaks to that. So Javeria, you talked about the motivations, you know, which really resonate for founding the Appella Project. What kinds of specific initiatives do you have going on? Yeah, at the heart of all our work is race equity. What could you do if you had the same opportunities and access? And so we are excited to partner with Howard University School of Law with their civil rights clinic. Tiffany, who was on here before, co-directs it with Ed Williams. She is also a former Sotomayor clerk. You guys run the world and you should.

You know, appellate clinics being such a great way to get substantive experience early on and get exposure to these issues. But most appellate clinics are law schools, you know, just a handful of law schools that are not particularly diverse and the clinics are not particularly diverse. So it's very exciting to be able to partner with Howard on this. Really, you know, a school that has incubated civil rights appellate advocacy and work on current cases and bring the important perspective that students and Howard have on issues that impact their communities. Our second main program is our mentorship program. I see a number of our mentees on today's call, which is very exciting. So students around the country who are interested in appellate practice and have demonstrated

a commitment to racial equity are paired with appellate mentors. We are really fortunate to have such a diverse, awesome group of appellate attorneys who signed up, including Carmen. In addition to that, we provide resources every month to make sure the students are getting a holistic set of resources to do this work. So everything from support navigating the clerkship process, the opportunity to learn from judges, networking events with the appellate bar. It's a pretty insular elite space. It can be hard to meet people there, especially if you're coming from a background where you're first generation or didn't grow up around lawyers. So much of this hiring and recruiting is done

based on networks. And I think that's something that we don't talk about enough. We also do substantive skill building workshops. So for example, legal writing workshops to really develop those core skills, given that there's often so many disparities and the opportunities students of color get to really hone in on their legal research and writing skills. the response both from the students in the appellate bar, but also to see that simply by connecting genuinely amazing students with people in this space, opportunities being created. So we've had students get appellate internships, clerkships, fellowships, and I really hope that that continues. We also do talks at law schools, really trying to target 1Ls and affinity groups to talk about appellate work. You know, you don't know what you don't know. So going over the fundamentals of what appellate work is, why it matters, why diversity is so important. And then, you know, what concrete steps should you take if this is an area of practice you might be interested in? I think the last thing I'd say is, you know, one thing that I'm excited about with the programs is it's amazing to work with the students. They're very inspiring. They give me a lot of hope for what the future looks like in this space. And I hope that by really creating a community that is much bigger than any one person or organization, we start challenging some of the assumptions about who is, you know, quote,

qualified to do this work and how we identify those people. And my dream is that all highly qualified applicants are considered for these opportunities. So Javeria, if you are a student and you are intrigued by what you hear, how can you get involved in the Appellate Project and be part of this network? And if you're an appellate lawyer and you want to help make the bar more diverse and seed a new cadre of all women, all people of color river masters, what can you do to get involved? I love that question. So you can reach out to us through our website, the appellateproject.org, sign up to our listserv for the latest. But if you are an attorney or

judge or at a law school and you want to be involved in our programs, we are pretty much entirely volunteer run. So if you want to be a mentor, lead one of these workshops, come speak to the students, join the networking events. We really would love to work with you. As students, if you're at Howard, check out the clinic for sure. If you're at Howard or more broadly and you're interested in the mentorship program, our inaugural cycle is ending next month, but we'll be reopening our new class in the fall.

So definitely look for the application in the summer and be sure to apply. All right. So I think that's all we've got time for today. So let me wrap by saying thank you so much to our fantastic guests, Matthew Fletcher, Carmen Aguina-Gonzalez, and Javeria Khan for joining us. We learned so much and y'all were inspiring. So thank you for doing the podcast with us today. As always, we are grateful to our producer, Melody Rowell, to Eddie Cooper, who does our music. We are grateful to you, dear listeners. Thank you for tuning in and for supporting the podcast. If you'd like to support the pod by being a subscribing member, please check out our Glow campaign, www.glow.fm forward slash strict scrutiny. Till next time.