Strict Scrutiny - Thanks For The Footnote

Episode Date: June 29, 2020

Leah, Melissa, and Kate are joined by Anil Kalhan to break down the Supreme Court’s important immigration habeas case, Department of Homeland Security v. Thuraissigiam, as well as some DOJ developments. Check out our new anniversary merch on our website! 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 necks. Welcome back to Strict Scrutiny, a podcast so fierce it's fatal in fact. I'm Melissa Murray. I'm Leah Littman.

And I'm Kate Shaw. And we have with us today a very special guest to help us dissect the court's major immigration habeas case. And that special guest is Anil Kalhan, a professor of law at Drexel University Klein School of Law. This year, he's also a visiting scholar at the Center for the Study of Law and Society at the University of California Berkeley School of Law. Anil teaches and writes on immigration law, U.S. and comparative constitutional

law, and international human rights law. He currently serves on the New York City Bar Association's Task Force on the Rule of Law. And from 2015 to 2018, he served as chair of its International Human Rights Committee. Welcome to the show, Anil. Thanks so much for having me. I should also note that Anil is also a fellow Voting Rights Act enthusiast, which might be, you know, one of his most important credentials. And he's also a strict scrutiny superfan from way back. So we appreciate your support and listenership, Anil. Kate, do you want to break down the show?

Tell us what we're going to do today. Absolutely. So let's get right to it. So we are going to begin with some housekeeping and administrative matters. Then we're going to cover some breaking news from the court. We will then turn to recapping the most recent opinions from this week. There were only a couple of them, so many remain. And then, as always, we'll conclude with some court culture.

Excellent. So the first housekeeping administrative matter is actually a very happy one. It is our anniversary. So cue the Tony, Tony, Tony. It's our anniversary. Yeah. No one else knows the song? I can't say I actually got that reference, Melissa. Sorry. Okay. This is why I don't work with millennials. Everyone knows this song. Anil, you know this song, right? Of course I do.

Okay, listeners, Anil's face suggests that's not true. Sarcasm doesn't translate on the radio or podcasts. All right. Well, for those who know, there is a terrific Tony, Tony, Tony song called It's Our Anniversary that would have gone great right there and should have been picked up by you pugs. But in any event, it is our anniversary. We have been doing this for one year and it's been such a cool and exciting year for us. And we are celebrating with lots of giveaways for our listeners. So Leah, do you want

to tell us a little bit about some of the giveaways and where you can find out about them? So we'll explain more about the giveaways at the end of the episode, but we've announced them on Twitter at Strict Scrutiny underscore or on our Instagram account at Strict Scrutiny podcast, but also to commemorate our one year podversary slash Tony, Tony, Tony anniversary, if that's how to say it, we have some new merchandise that is available at our website, www.strictscrutinypodcast.com. That new merchandise includes the line you asked for, and we delivered a whole line of merchandise that is necessary to enforce the Voting Rights Act. And you should get it while it's hot, because I am told that Wilbur Ross is buying it all up. So get it now. You know,

some children when they are young dream of being president. Others dreamt of creating a line of merchandise to honor civil rights slash voting rights hero Wilbur Ross. And for me, that dream came true. Do we have any other exciting merchandise or giveaways that we need to talk about or mention before we unpack it further at the end of the show? We have a very special VIP merchandise line that is available for our Glow subscribers. So if you'd like access to that, you can sign up to become a Glow subscriber at glow.fm forward slash strict scrutiny. All right. Should we get to the breaking news? Yes. So in the midst of a global pandemic, the Trump administration decided to file a brief at the Supreme Court arguing that the

court should invalidate the entirety of the Affordable Care Act. Specifically on Thursday, June 25th, very late in the evening, the administration filed its opening brief in California versus Texas, a challenge to the Affordable Care Act. At issue in that case is whether the law's individual mandate was rendered unconstitutional because the then Republican-controlled Congress reduced the penalty for remaining uninsured to zero, and if so, whether that unconstitutional amendment would bring down the entire Affordable Care Act. A group of Republican led attorney generals also filed a brief in support of the administration's position. And that case will be argued next term, October term 2020. I mean, there was a minute of suspense

yesterday. I don't know if you guys saw this, but it was a very late filing, right? So the states filed their brief, I don't know, midday, early afternoon, something like that. And those of us who are like moonlighting as cable news producers these days might have fielded questions like, they're definitely going to file this brief today, right? Because in my cable news show, I'm going to mention the administration is filing a brief today. And I had to say, yeah, they're supposed to. And I guess in theory, they have till midnight. But typically, that's not when government, federal government filings come in. So I thought like maybe there's. But what has been typical about governing in this particular moment from this particular administration? But I guess I thought for a minute maybe there is actually some, you know, like internal debate about whether they're going to soften their position at least to some degree.

And no, none of that was evident. I think the internal debate was whether to argue the entire Affordable Care Act is unconstitutional or all of the U.S. code is unconstitutional. So they took the more modest approach in this brief. I guess that's probably right. Or maybe the intern couldn't figure out PACER. It might actually be a quite quotidian concern and not anything more lofty than that. Other equally plausible explanation, DOJ was too busy enforcing the Voting Rights Act. Sorry, I had to put that one in there. Got it. No, no. Also, definitely a plausible theory. So that's obviously going to be something the court is going to hear in the fall. But we got a lot to go before we get there, right? So

we are now at the end of June. Next week will be into July. And that usually means the justices are frantically finishing opinions, packing for their summer travels. This year was obviously different, right? They heard arguments by phone in May, much later than they typically do. So we are in a situation in which it feels like we would normally be winding down, but we have like 13 outstanding opinions that we are still waiting for. So I think everyone is sort of slowly concluding that that means we are in for a couple more weeks of court watching. And I'm sort of of two minds about this. One is I desperately want this to be done so I can move on to other things this summer. kind of like geared up and adrenalized at 10 a.m. on decision days and they're, you know, a couple of days a week and you don't necessarily know what days, so you're kind of adrenalized anyway. But on the other hand, and I think this is actually where I come down, I think it is quite responsible of them to space these decisions a little bit more than they typically would and

not to rush them out. And I think that's for a couple of reasons. One is, you know, they just heard arguments much later this year than they typically do. And even getting a first draft circulated takes at a minimum a few weeks. You know, there are justices that want within 10 days or two weeks a first draft from their law clerks. They take some time with the opinions. You know, like at the very earliest, I think some of these opinions would have been circulating like June 1st and maybe been well into June. And it just takes time to refine drafts as they circulate. And dissents need to be drafted typically, at least in part, in response to majority opinions. Concurrences get drafted. And, you know, when you're inside under normal circumstances, at this time of year, drafts are like flying around fast and furious and justices are making

changes in response to other drafts and in response to requests from other justices. And, you know, like they should take their time and get these opinions right, at least not make any unnecessary sloppy errors, whether or not, you know, like we're going to agree with the substantive holdings in the cases. And then the last thing I'll say is, you know, everyone, you know, all of us, and I presume the clerks and the court employees, have been working without child care for months. And so I don't know how many law clerks have children, but each year at least a few do. And certainly many court employees do. And so I just don't think people are going to be able to produce at their ordinary rates.

And so I think it is right to build in a little bit of extra time. And I just wish the chief had a couple of weeks ago said something publicly to sort of, you know, set expectations that we would be going much longer than we typically do. So how do we set expectations going forward? Because presumably the state of affairs that we are in now will continue into the fall, which is to say that, you know, it is likely that schools, even if they reopen in September, will perhaps have to close at some point during the year. And you will have clerks again at home without child care and not just without child care with the additional duty of having to homeschool their children. Does Sam Alito have any school-age

children? And could that explain some of the problems in the opinion that we're about to discuss the Royce-Aguilam? Or is it just some of the other justices with school-age children? I'm just putting that out there. Curious. I think only Justice Kavanaugh has school-age children, although Justice Breyer is sheltering in place with his wife and his daughter and his daughter's school-age children. So maybe he is involved there. But I'm not sure that anyone other than Justice Kavanaugh is doing this. But even people whose kids are in college are probably back,

like the chief or someone. But I mean, college-age kids, you're not sitting there on Khan Academy with them trying to help them figure out how to get online. So one of the reasons why we wanted Anil to join us is because the really significant opinion we got this past week, Department of Homeland Security versus Thricegum, although there's some uncertainty about how to pronounce respondent's name, is not only a significant habeas case, but a lot of the intricacies and complications of the opinion are how it could possibly apply apply given extremely complicated doctrines and statutes and different categories within immigration law. And so Anil is going to help us work through this 5-2-2 opinion, which we'll explain the breakdown in a second. But the majority is written by Justice Alito for the five conservative justices. And then Justice

Breyer and Justice Ginsburg concurred in the result, but not the reasoning. Again, we'll break that down. And Justice Sotomayor and Justice Kagan dissented. Because this case might not have been on a ton of people's radars, I thought it might make sense to do some explication about the expedited removal system that is at the heart of this challenge. And that expedited removal system was created by a statute, the Illegal Immigration Reform and Immigrant Responsibility Act, IRA. that kind of brief background, Anil, would you mind kind of sharing with our listeners what expedited removal means and who it applies to and like the system that was being challenged in this case? Sure. So expedited removal is, as you noted, a procedure that was instituted by Congress in 1996. And what it does is it applies to non-citizens who are suspected of the procedure fits within either of those categories, then they can be summarily removed without any further hearing or review at all. So essentially no process. So that's the universe of people to whom it can be applied,

people who are suspected of being inadmissible on one of these two grounds. The government's not required to use expedited removal. It's long been understood that they have the discretion to refer any individual who could be subject to this draconian process to a regular removal proceeding before an immigration judge instead. But it authorizes and makes this process available in two settings. The first one is at ports of entry. So an immigration officer can use expedited removal when a non-citizen is arriving at a port of entry, like a land border crossing or an airport, and seeking to enter the United States. The second context, they're both controversial, but this is particularly controversial for

reasons we can talk about, gives the DHS secretary discretion to also apply this streamlined non-process, really, to individuals who are already within the United States without authorization. So in other words, people who have not been admitted, if they are unable to prove that they had been continuously present in the United States for at least two years. Now, that's the outer limit of the category that the statute defines. But again, the secretary is not required to designate everyone in that category as potentially subject to expedited removal, or for that matter, to use it at all. And until recently, the government has never really sought to push the removal or for that matter to use it at all. And until recently, the government

has never really sought to push the use it to that outer limit within the United States. So since 2004, the regulations that authorize the use of expedited removal inside the United States have applied it to individuals that immigration officers encounter within certain designated border zones, within 100 miles of a land border, if they cannot prove that they have been physically present in the country, not for more than two years, but for more than two weeks. And as Anil was saying, the immigration officer's determination either at the port of entry or the officer designated by DHS to make a determination about a person arrested within the United States is final, and that person can be summarily deported after that result.

However, if the immigration officer concludes that the person has made what is called a credible fear of persecution that is some potential for eligibility for asylum, then the individual is referred to an asylum officer who will then conduct an asylum interview. But if the asylum officer determines that the person isn't eligible for asylum for whatever reason, that determination is also final and the person can be summarily deported. And so that is the expedited removal process. As Anil mentioned, when the Solicitor General petitioned for certiorari, it was limited to persons who were apprehended within 100 miles of the border and who couldn't prove they had been in the United States for longer than two weeks.

But as we'll get to when we discuss the possible implications of the decision, the administration is seeking to expand that authority. And this statutory exception that you're noting is really important, because if somebody expresses a fear of persecution and an intention to apply for asylum, they have to be referred for the screening interview. And human rights organizations and advocates have fought long and hard. This was meant to be a way to ensure that nobody's going to be sent to a country where they might face persecution in violation of our international law obligations. So this is a safeguard that's meant to be a generous process. It's not meant to sort of be one where you screen people out. It's meant to be screened people in so that if there's any possibility, significant

possibility, that they might face persecution, they have a chance for a real hearing. So the challenge to this expedited removal system was primarily, and I think arguably exclusively, grounded in the suspension clause. The suspension clause of the United States Constitution says that the privilege of the writ of habeas corpus shall not be suspended except in narrow categories that everyone agrees are not satisfied here. And so the first objection was by precluding access to judicial review of the detentions and removals, Congress violated the suspension clause. And then the second challenge, which, you know, based on my reading of the Ninth Circuit and the respondents briefs, it's not at all clear was actually presented in this case, although the court reaches out to decide it, was whether the expedited removal system deprived respondents

subject to it of due process of law. So we'll talk about both of these holdings independently, although I think that there is a really complicated relationship between them in that some of the court's analysis of the suspension clause seems to draw on due process cases, vice versa, and it's possible that the court's analysis of either category might bleed into the other to either expand or limit it. Okay. So first holding of the court is that habeas, the constitutional guarantee of habeas, is not available or required for judicial review of deportations. Now that is the broadest understanding of the court's holding. And I think we'll get into it's not clear how broadly the court's reasoning actually went. But what the court said is when an individual is challenging their deportation, they are not seeking a release from custody. That is, they're not asking simply to be released from detention. They are instead asking the court to prevent the federal government

from deporting them to another country. And for five justices, Justice Alito says, the Constitution's guarantee of habeas corpus does not extend to or guarantee any kind of judicial review of deportations. And that is, you know, I think a place to start in this opinion. Do habeas scholars sort of agree with the court's assessment of the history and purpose of the writ and the way it interacts with the suspension clause as the court has imagined it here? I think habeas scholars, the framers of the Constitution, and prior Supreme Court cases would all disagree with Justice Alito's characterization of the constitutional scope of habeas. So for example, in the discussions of the Alien Sedition Acts,

Madison notes that it would be unconstitutional for the Alien Act to deport individuals without providing them access to writs of habeas corpus. There are also extremely early habeas cases that reviewed possible extraditions or attempts to sell individuals into slavery in other countries. So there's this foundational English habeas case, Somerset v. Stewart, which Justice Alito's opinion discusses. And in that case, the court, via a habeas petition, said that you could not sell an individual and ship them to Jamaica to sell them into slavery. That is reviewing, right, a possible deportation. And Justice Alito's attempt to deal with this opinion just says, well, okay, it may well be that a collateral consequence of this habeas petition is that he was allowed to remain in England, but that's because of English law.

And to my mind, that just completely misses the point, right? Like the collateral consequence of the release here would be allowing respondents to remain in the United States. But that too is a consequence of United States law if their claims are, or if their claims do in fact have merit under US law, whether it's asylum or otherwise. And then habeas scholars, too, right, have pointed to instances of habeas being used to address prisoners of war, extradition, desertions, and what Justice Alito notes are, you know, atypical uses of the writ. And his only answer to this is, well, some judges were kind of angry when these cases came before them. And then second, that not all of the opinions are reported. And again,

this just completely overlooks and misunderstands how habeas scholars have documented how habeas worked. The other thing that's really striking about Justice Alito's discussion of that history is this is not the first time that the court has addressed the question issue before. On at least two major occasions, the court has. In INS v. St. Cyr in 2001, the court read through all of that history and concluded that it would raise a substantial issue, substantial constitutional question under the suspension clause if judicial review were not available. And in 1953, which in a case that St. Cyr talks about, Heckelah versus Barber, the court also said that judicial review is required by the Constitution based on its reading of 30 years worth of case law under the 1917 Immigration Act. So, you know, stare decisis is for suckers again. I mean, sub silencio.

Justice Alito really is ignoring the court's own case law in the immigration context and sort of century and of kind of contemporaneous or soon after the founding sort of treatment of habeas. So I get like I have this sort of methodological question about the opinion kind of generally. So, Melissa, remember when we did our episode with Emily Bazelon, we sort of talked about originalism and said like one person on that court who is not an originalist is Sam Alito. He doesn't say he is. He doesn't write. You know, like he just, he's pretty. He mocks originalism sometimes. He's like, you're right. He makes fun of originalism. So this opinion, is it just like a kind of hackish attempt to do originalism in part because it is an awfully 1789 focused opinion. And then it does some kind of sloppy treatment and like kind of grumpy. Let's party like it's 1789. But then for somebody who's not, you know, it's not that easy to do good history.

And it strikes me that maybe part of the problem with the opinion is he's just sort of like masquerading as this thing he really isn't and doing a piss poor job of it. Like that, I think, is one possible reading of the opinion. Or maybe it doesn't even purport to be an originalist opinion. Like, I guess I'm curious whether you think it does. I think the question is sort of like, is this shaped by events that happened in 1789? Or is it shaped by events that are happening in 2019 to 2020 on the border? I mean, like, is this truly originalism? Or is this sort of outcome driven instrumentalism? Justice Alito, to me, Melissa, I think you're absolutely right about that. I mean, he is the most outspoken justice in my own reading of the cases on immigration from a restrictionist perspective. I mean, this is a term which has had more immigration cases than many. And that's been true over the last few years. And it's pretty consistently Justice Alito

who gets these, you know, opinions where he's really, you know, taking the Trumpiest of Trump positions. In the kind of wind up to the analysis he does in this opinion, he has this kind of long summary about the contributing factors that led Congress and subsequent administrations to create expedited removal and then expand it. And it's just filled with citations that I think are either misleading or just political documents where he cites, you know, the like like overwhelming influx of like people at the border, overwhelming our immigration systems. And he'll say things like, well, all asylum claims are like a vast majority of them are not meritorious, overlooking the fact that many asylum claims

aren't pursued because people lack counsel, because the conditions and detention systems are so poor, they abandon them and for other reasons. And when I was looking at the opinion breakdown, and I noticed that Justice Alito was one of the justices who hadn't written February and Thurisagium was outstanding. I was like, oh, he's going to write that, right? Like he wrote Kansas versus Garcia earlier this term. He is, you know, he wrote Jennings versus Rodriguez from prior terms. And, you know, he just is, I think, like extremely committed to the most expansive version of government authority over immigration. But, you know, as to why this opinion is framed in originalist terms, it is partially because the court's prior cases, like INS versus

St. Cyr, said that, you know, the writ protects at least the writ as it existed in 1789. And partially for that reason, when the case gets to the Supreme Court, respondents and, you know, their amici are pointing out, you know, the habeas scholars and the court's prior analysis of the history of habeas as indicating that, you know, all these manners of detentions and quasi-deportations or things approximating deportation were subject to judicial review. And the way Justice Alito kind of gets around them is toent can point to me a specific reported case that held habeas is slash must be available for deportations, you know, around the time of the founding, right, you haven't established that the writ extends to that protection. And of course, the problem with using that framework for originalist history is it overlooks that we didn't have this expansive immigration system,

right, in 1789, or really for the first 100 years of the United States, as both the dissenting opinion and Justice Alito's opinion notes. And it's also the case that, you know, the government hasn't tried to do absolutely everything under the sun. And so if you can't point to a particular case saying the government can't do this thing, that doesn't mean they lack the power. And so it's just a, you know, extremely, I think, gotcha move that he applies here that is frustrating for all kinds of reasons. I hadn't thought about it when I read the opinion, but the way you just described it makes me wonder whether this opinion cast doubt on the Boumediene majority. I mean,

there's no precise analog to find- Of course it does. Yeah. But I mean, even the narrow holding that the writ runs to individuals detained at Guantanamo, that, of course, is a Kennedy opinion. Obviously, this is a different court. And if the question had been framed the way you just framed it, you know, clearly the detainees in Boumediene lose, right? So you think it obviously calls it into question. Wow. Yeah. I mean, like there were exchanges at the oral argument in Boumediene between Justice Scalia and Seth Waxman, who's arguing on behalf of the detainees, where Justice Scalia is pressing the same point, like, point me to a case where a sovereign, you know, detained someone outside of the territorial

bounds of the country, and the writ ran. And Seth Waxman is like, you know, they just didn't do that, right? Like, because it's unseemly and appalling. And, you know, so my inability to identify a precise case does not defeat my argument. Yet that's one of Justice Alito's moves here. If you lay the two results side by side, what that means is that non-citizens who are physically present within the United States are less entitled to protections of the suspension clause than enemy belligerents who were captured on foreign battlefields and detained outside the United States. That's a little bit difficult to reconcile those two outcomes. One additional thing just on the Boumediene point as to whether this opinion, sorry, habeas is my jam. I can't help it. In a footnote, right, Justice Alito says the Supreme

Court has not yet resolved whether the suspension clause guarantees an affirmative right to habeas review. Did you read Boumediene, right? Like that's what that decision did. So there's all the questions about the degree to which the writ applies in these circumstances. But then there's a secondary issue that it's not clear was really supposed to be an issue. And that's whether the protections of due process apply to asylum seekers, and the majority decides that they do not. And there's, I think, a lot of fighting in these opinions about whether the majority should have even taken up that question. This is one of the most exasperating parts of this opinion for me, because, okay, so if the, on Justice Alito's own conclusion about habeas, there's no jurisdiction. So, you know, that's, why is he reaching the due process

question at all? And then in a handful of pages, really, it's not an extensive discussion. He just bulldozes through like 130 years worth of history to conclude that non-citizens in the United States essentially don't have due process rights. This is a bedrock principle of the constitutional protections that are available to non-citizens, that once somebody who has entered the United States, even illegally, and the court has expressly said, even if somebody enters illegally, then they can be expelled only after proceedings that conform to traditional standards of fairness encompassed in due process of law. This was cases as early as 1903, Yamataya versus Fisher, or the Cold War era cases like Mazai. Justice Alito just has nothing to say about any of this. I mean, it's frustrating because we've mentioned Justice Alito's other immigration

writings in Kansas versus Garcia. Earlier this year, he wrote an opinion Hernandez versus Mesa, where the border was just this magic on off switch, where if you were on the other side of the border, you could not sue a federal official who violated your constitutional rights. Now, it turns out if you are on the United States side of the border, well, you might not have due process rights either. Well, he said you couldn't if you're on the Mexico side of the border. I'm not sure he said you definitely can if you're on the US side of the border, well, you might not have due process rights either. Well, he said you couldn't if you're on the Mexico side of the border. I'm not sure he said you definitely can if you're on the U.S. side of the border. Right. No, that's fair. He probably would have said you can't. But then at least he shouldn't have pretended that the existence of the border was doing all of this work. And I think Anil is right. Like, there is no point in reading this due process holding. It's not even clear that the Ninth Circuit relied on it or respondents pressed it. But the interaction between the due process and the suspension clause holding is, I think,

what leaves considerable uncertainty about how this opinion might apply in other cases. So, for example, we were saying Justice Alito's analysis of suspension clause seems to suggest there's no judicial review of any deportations required whatsoever. So what if, for example, and Justice Breyer raises this hypothetical, Congress eliminated any judicial review of the deportation of lawful permanent residents, right, or denaturalized citizens? Would Justice Alito then say, well, the suspension clause doesn't require it? You know, his due process analysis seems to be tied to a person's connections to the United States. And so, you know, perhaps there are grounds for distinguishing the due process analysis,

but it's just not clear how slash if at all that interacts with the suspension clause. And, you know, just by its nature, because the due process inquiry is more flexible and a balancing test, it's not clear, you know, in the hands of this court, how much protection it would actually provide. Really, the category of people who are most approximately vulnerable from a decision like this one, from this decision, are people who are unauthorized within the United States who entered without inspection. Interestingly, somebody who has overstayed a non-immigrant visa, they actually have statutory protections in a manner that people who entered without inspection don't.

So this is still millions of people. There are statutory and constitutional hurdles that would have to be overcome or at least reconciled with this decision before that part of the analysis would be able to be applied to lawful permanent residents or even non-immigrants, temporary non-immigrants. Yeah, I mean, you know, certain statutes might create constitutionally protected liberty interests if we're talking about the Convention Against Torture or other statutory protections. But the fact that the decisions, reasoning, and conclusions are both alternately framed in extremely broad and capacious terms, and yet also could be more limited, allows, you know, this administration and potentially others to be able to try to aggressively interpret them to the detriment of immigrant communities, who are then going to be faced with, you know, the prospect of trying to prove to an immigration officer that they, you know, did continuously reside in the United States for at least two years,

lest they be subject to expedited removal. So can we talk a little bit about the different opinions here? So the five are predictably the five conservative justices on the court. But then we have two justices concurring, and those two are Breyer and Ginsburg. And are you surprised that they concurred in the judgment here? I read that concurrence as damage control, quite frankly, is that it seems to me that Justice Breyer may have been trying to frame a more limited opinion that is, well, this is really as applied to this particular individual than saying that there's no judicial review. And that would have been a more minimalist opinion. I still think it's flawed, but especially since Justice Ginsburg is the one joining him, it read to me as if maybe this is just, well, we can pull over Justice Minimalist, Chief Justice Roberts. The lineup was sort of odd, wasn't it? Usually it's Breyer and Kagan doing that kind of damage

control. So the Breyer and Ginsburg was conspicuous there. And I, you know... And instead it's the notorious RBG. Yeah. And I just don't know. You're probably right, Anil, about what is actually driving them here. It's just, I'm not sure if it doesn't end up having the opposite effect, which is if nobody seems sympathetic, you know, they aren't able to show the consistency between their concurring position and the majority position. Instead, they sort of seem to be illustrating the contrast between the two, which only I think suggests that it's not that likely that they'd be able to peel off and join the two dissenters in some future case. But, you know, as to this, so they

really do say, as applied on these facts, right, there was no unconstitutional suspension. There's a footnote that seems to leave open the possibility that this petitioner could potentially still re-raise some of the evidence that there was some dispute over regarding these so-called white van kidnappings of Tamils in Sri Lanka that was sort of interesting to me because, you know, Sam Alito does not ordinarily seem, as you guys have said, sympathetic ever to the claims of. How could he re-raise it, Kate, if he's being immediately ushered to a plane with a cabin destined to Sri Lanka? Right. So that, I don't think we've mentioned that. So Leah talked about tone, but I'm not sure we highlighted that incredibly nasty suggestion that the government would be very happy to release the Raisa Giam, you know, in the cabin of a plane bound for Sri Lanka. But, yeah, I don't know. I'm not sure that even if it was just lip service, it's just sort of uncharacteristic for Justice Alito even to sort of pay lip service like that. Well, the interesting thing, the other thing you think about that fact, that discussion of the facts, Kate, is that he botched the facts at oral argument on this very point about the

white van attacks against Tummel. So maybe just sort of saying, oh, no, I actually, I know what's going on factually in this case. And I think it was just a suggestion that the government might reconsider summarily deporting this person, not that he has any particular avenue to require the government to revisit his case. And it's like, great consolation, Sam, right? Like, thanks for the footnote. And that left Justice Sotomayor and Justice Kagan in dissent, you know, rebutting both the majority's approach to the suspension clause, due process clause, and also the characterization of respondents' claims here. And the due process issue, sort of that sort of vast due process question that didn't need to be raised. Although I think Ginsburg and Breyer also made much of that too.

So one final point, which is sort of on topic, but a little bit off topic, but it's something that I thought about when I listened. So the episode that Leah, you and Melissa did with Chase Strangio on the Bostick opinion, first of all, it was such a great episode. But second of all, you guys talked about something that was really interesting in the Gorsuch opinion, where he takes a suggestion in the dissent that, you know, nobody ever, nobody in 1964 ever thought that this statute would encompass sexual orientation and transgender individuals, and says really nobody thought that because lawsuits started getting filed right away. And I just

thought it was such a nice point about, I guess I'm bringing it up now because losses can reverberate like down the road. You know, sort of Doug Nijame and my colleague Alex Reiner have written these great law review articles about how like, you know, you can win through losing sometimes and short-term losses can somehow, can sometimes, you know, even many decades hence have transformational effects on the law. So I certainly don't have a story to tell about how this loss ends up getting some future wins at all. I think that you guys are rightly highlighting some of the potentially really dangerous expansion of the logic in this, or just application of the logic in this opinion, that you could sort of easily see following on in years to come. But I guess just like to shout out that like losses don't always a stay on the books, and that they can sort of law can be transformed in all kinds of ways.

Even if that's right, you know, the unfortunate reality is the like interim human suffering and the people who will have to endure and like be subject to the uncertainties in this regime and like victim to aggressive interpretations of it. You know, yes, we might, you know, reverse it at some point down the road. But, you know, in the hands of particularly this administration and others, it's just a deeply concerning opinion. Thank you, Anil. Thank you. All right. So having thoroughly dissected the opinion, Let's move on to court culture. So there were a lot of court adjacent things going on this week. So Leah, what was probably the most important court adjacent development to happen? So one court adjacent development that has potential implications, I think for several of the court's opinions and more general approach to reviewing the actions

of the executive branch, was the congressional hearing on Bill Barr's Department of Justice. At that hearing, several witnesses testified about Bill Barr's exercise of his powers as attorney general and how he exercised them in seemingly political partisan ways that undermined the rule of law. At the hearing, there were two sitting Department of Justice officials who testified. There were also two former DOJ officials who testified to the same. So does one of you kind of want to outline some of the witnesses testimony? So there were three witnesses for the Democrats. John Elias, who was an antitrust whistleblower,

I think he's still with the department right now. There was also Aaron Zielinski, who was a former Mueller prosecutor, who also tried Roger Stone and then withdrew from the case. And then Don Ayer, who had also been, he was a former DOJ official, and they were all the Democratic witnesses. The one Republican witness was former chief judge of the Southern District of New York and former Attorney General Michael Mukasey. And so he was there as a counterpoint to the testimony of the other three to basically say, like, you know, there's nothing untoward going on here and that Barr was basically running the department in the way the department was supposed to be run. And, you know, there was nothing to see, nothing to be concerned about.

I think the testimony was just extremely striking. You had Zelensky saying that he both inferred from what he observed and was being told by superiors that Roger Stone was being treated differently because of his relationship with and friendship with the president. Then you had John Elias saying that essentially the Department of Justice flew into action in order to try and prevent a merger after the president fired off some angry tweets about it. And then you had Donald Ayer, who basically said that Barr has grossly misused his powers. And Ayer is, of course, a former senior DOJ official in the Bush administration. And so just the combination of all of these things happening at the same time that the court is,

again, reviewing administrative actions of this executive branch are just very striking. Yeah. You know, I thought with the Zolinski and the Elias testimony, it just, you know, it confirmed a lot of our worst suspicions about what life inside DOJ is actually like. Like, none of this stuff was really new. You know, we all saw the Stone sentencing memo get submitted and then yanked and then replaced with this much more lenient one. But just how explicit these directives were inside DOJ was not at all clear to me. And Zelensky was like, yeah, it was like said that this was being done because of his relationship with the president. Like people said it, people talked about it. And Elias's testimony, which got

a lot less coverage, like understandably, was like in some ways it was wild. I mean, he literally said we're spending like huge amounts of our resources investigating mergers in the marijuana industry where any like there are legal tools for deciding whether mergers are anti-competitive. And like if you took less than a semester of law school like antitrust, you would look at the market for marijuana and know like these two little players merging, that's not anti-competitive in the way that the federal antitrust laws give a shit about. And yet you have like scores of economists and lawyers like harassing these companies by sending them requests for information, which are extremely burdensome to respond to.

And like it was, again, explicitly noted that the reason this was all happening was because Bill Barr doesn't like pot. Like that's it. That's the reason. And like, it was like the tapping of the pen when Don Ayer went over time a little bit and Nadler let him continue. There was a lot of screaming. The treatment of Zelensky, who was testifying by video because he said he has a newborn at home and they were worried about the possible exposure to COVID. And they were just, you know, like, well, you know, other people came here risking life and life. It was just like all really weird and mean spirited. And then all of these pivots, these sort of what about isms,

like, you know, like you think the bar DOJ is bad. Look at the Obama administration. I mean, it's just like constantly, like they're just shadowboxing with 2008 to 2016. I mean, Jim Jordan is just an unfiltered Fox News rant. So any hearing that he is participating in is just going to go all kinds of crazy. And this was no exception.

But, you know, I think it's interesting to realize that all of this is happening at the same time the court is releasing these decisions. So Melissa, you and I talked about the fact that the Bolton book, excerpts of it came out on the heels of the Supreme Court's decision and the Daki case. Both decisions seem to rest on the idea that this administration is just – does not have control of anything. Doesn't know how to govern. Horrible at governance. But then you layer those things on top of Thricegium, which seems to say, well, it's totally okay to give the executive branch these powers because they have this apparatus built up, and this is just a power we give to the political branches. And I think it's

really scary, again, to think about how that power could possibly be exercised, given the people who are apparently currently running our government. It's just, you know, the two sitting DOJ officials talked about specific events. Ayer had this like, you know, very high level perspective on the Justice Department as an outsider, but obviously an alum of DOJ. And like, he said stuff that like genuinely, like chilled me to the bone. And I think that these were all, like, well-founded kind of warnings that he was issuing, which is just basically when you look at the kind of abuse of power that the attorney general has engaged in, and that this is all about advancing the, well, I guess the marijuana stuff is just, like, Barr's own thing. But, like, most of this,

much of this is about advancing the president's personal and political interests. You know, you have to worry about what lies in store in the next few months in terms of using the apparatus of government to advance the electoral interests of a president right now in danger of badly losing his re-election campaign. And like, that is a terrifying prospect. And I think that is why you were seeing for the first time real talk among Democrats about impeaching Bill Barr. You can, of course, impeach a cabinet official. And I don't know, honestly, whether it's a good use of their time and energy and whether it's feasible in the months that remain between now and the November election. But the conduct is grotesque that is being described. And I think that we all need

to be worried about how an individual willing to so abuse the Department of Justice might behave in the service of the president's reelection efforts in the next few months. I think Don Ayer's testimony was not only the most damning, you knew it was the most damning because they went to such enormous lengths to impeach him in terms of his testimony. So there was all of this discussion about, you know, Don Ayer was basically a disgruntled employee who had been put in his place by Ed Meese, like 150 years ago. And so every point that he made, there was this pivot to like, what about that time when Ed Meese said you were terrible? And so I mean, it was clear that the testimony was really important, really damning, and they were at great pains to distance themselves from it. And, you know, to get to one of my hobby horses, it's not just, in my mind, the threat from the executive branch who is run by these corrupt people who are abusing their powers. It is also the problem of

some courts, this administration's nominees, who are not only unwilling to recognize it, but instead insist on giving these people more power. So on the very day that there's this congressional hearing about these horrible abuses happening in the Department of Justice, you had the U.S. Court of Appeals for the D.C. Circuit release an opinion that directed the district judge to dismiss the prosecution of Michael Flynn, who is, of course, the president's formal national security advisor, who pleaded guilty to giving a false statement to

the federal government. And that false statement concealed, I think, even more threatening and troubling behavior of him essentially operating some kind of shadow diplomacy with Russia, a hostile foreign power, and concealing and lying about it to a bunch of other people, rendering him vulnerable to foreign blackmail. And the opinion is written by one of President Trump's nominees to the Court of Appeals for the D.C. Circuit, Naomi Rao. And in the course of directing the district judge to dismiss the prosecution of Michael Flynn, she says the government's representations about the insufficiency of the evidence are entitled to, quote, a presumption of regularity. What planet could

that possibly be true? Right. The government's conduct in that case wasn't regular. So one of the points made in that opinion is that it is entirely within the executive branch and specifically the Department of Justice's purview to decide what they will or will not prosecute, which that is, I think, right, but not after there have been two guilty pleas entered. Well, also, the question of when mandamus is appropriate, right? Like when Sullivan may well have been well on his way to dismiss this thing after making DOJ squirm a little bit. I think that's probably where it was headed anyway. After conducting a hearing. Yes.

Yeah. So just to explain the mandamus, what happened is the district judge appointed an amicus to argue against the dismissal of the prosecution. In response to that, Flynn sought mandamus. That is asking the Court of Appeals to force the district court's hand before the district court does anything. That type of relief is never warranted where the party has an adequate remedy. And here the adequate remedy is a ruling by the district court, followed by an appeal. And what is even more alarming is that Judge Rao's opinion says, well, the reason why that isn't an adequate remedy is because it could harm a party's interests who didn't even seek mandamus, the Department of

Justice. And she suggests that it's this horrible intrusion into their institutional prerogatives and executive power to even subject them to minimal oversight of a judicial hearing, which, by the way, right, like that's just judicial review like that happened. But it really it really was rich to invoke the presumption of regularity when you didn't have to in this case. Like it's like it was it was it. Well, it was it was rich to invoke it even as these other hearings were going on where they were just basically like there's nothing regular about what's happening at DOJ. Like the presumption is of irregularity. Like everything is completely unorthodox in this administration. So one other small development we just wanted to note since Melissa and I recorded the last

episode before it happened is there was a ruling in the case about John Bolton's book. The district court said, for reasons that hardly need to be stated, the court will not order a nationwide seizure and destruction of a political memoir. Although this was an opinion from D.C. District Judge Royce Lambert, and he did note that there might be other consequences for John Bolton, whether it was the disgorgement of profits to the government or even criminal liability if, in fact, he had revealed classified information. Yes, that's right. And also after we recorded the last time, we totally missed the latest Friday Night Massacre because we recorded on Friday afternoon.

But as many of you know, the Attorney General issued a statement saying that Jeffrey Berman, who was the attorney, the U.S. attorney for the Southern District of New York, had resigned. Berman then issued a statement saying that he had not resigned. And in fact, the attorney general could not be the one to make him resign. And then there was a back and forth. The president denied firing Berman. But then later, the attorney general came back and said, in fact, the president had fired Berman. So all of this raises a question. Berman is no longer the U.S. attorney. Audrey Strauss is the U.S. attorney that was Berman's deputy. But why was Barr at such great pains to sort of hide the fact that the president wanted Berman fired? The presumption of regularity, Melissa. Look, it is an unconstitutional

intrusion for us even to be asking this question of the executive branch's motives, or so Judge Naomi Rao told me. Well, isn't it also obviously the case that Berman wasn't sufficiently enforcing the Voting Rights Act in the Southern District? That's clearly why. He was spending too much time enforcing other things, which I think was the problem. This led me to say on a cable news network that something was rotten in the state of Denmark. And that prompted a response from a gentleman who is a Grammy award-winning composer, one Kenneth Fuchs, who accused me on Twitter of racially slurring the nation of Denmark with my comment. You can follow it all on Twitter if you care. I informed Mr. Fuchs that the quote actually was not a racial slur against the Danes, but

rather was a quote from the bard himself, William Shakespeare, in the very well-known tragedy Hamlet, Something is Rotten in the state of Denmark. A whole Twitter thing followed. And in an attempt to kind of wring some dignity and a silver lining from the whole La Faire Kenneth, we had decided to create a whole new line of strict scrutiny merchandise, which includes a line that I offered Kenneth when he told me that, although it was cute that I was quoting Shakespeare, it was always inappropriate to single out an entire nationality. I told Kenneth that he would have to take it up with the bard. And so we have a whole new line of strict scrutiny merchandise that says, take it up with the bard, that we hope you will find as amusing as we do.

And we hope you find it amusing because all proceeds from this line will go to support the Marin Shakespeare Theater and their program, which brings Shakespeare's to California prisons to allow prisoners to take part in learning about these works and thinking about the broader humanity that Shakespeare brings to us all. Even you, Kenneth. Even you. Maybe even Judge Naomi Rao. Even you, Kenneth. Even you. Maybe even Judge Naomi Rao, you know, if you're listening. Take it up with the bard. Take it up with the bard. Yeah. Anyway, it's been a crazy week. The week has been wild. When you said that Berman firing was last Friday after our last show, I was like, oh, no, no, that's wrong. It was like three weeks ago, right? But no, then I checked.

It was not, in fact. Life comes at you fast, right? So there was Berman. There were these hearings. There was LaFerre-Kenneth. Like, yes. I mean, it's just. The end of Woke Lido.

The end of our mirth and happiness on this podcast. So much has happened. It was short-lived. It was short-lived. I told you it would be short-lived. I know. I know. Woke Lido was also very brief.

Yes. I mean, it arguably never existed. But, you know, something else that we started this past week are the giveaways that we teased in the introduction to mark our podversary. We are running two giveaways, one on Twitter slash email and the other on Instagram. On a short podcast teaser, I explain the giveaways briefly. You have to answer one of the trivia questions I shared and also email or share on Twitter your favorite Strict Scrutiny episode. So that's the Twitter giveaway. It runs until July 1st. And we will select winners of that giveaway at random who will receive their choice of Strict Scrutiny merchandise. We are

also running a similar giveaway on Instagram at strictscrutinypodcast. So that's been our week. I think we're going to wind this down. Okay. So thanks to everyone, as always, for listening. A special shout out to Gray Brooks from Erie. We wanted to wish you a belated Father's Day from Frances and Erie. We hear you're a strict scrutiny super fan and they wanted to say

what a great dad you are and how much Francis likes the matching father-child strict scrutiny swag, which all of you can see on Twitter. Thanks to our guest, Anil Kalhan. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music and thanks to all of you as always for listening