The NPR Politics Podcast - Big Week At Supreme Court On Immigration, First Amendment

Episode Date: February 28, 2018

It's a big week at the Supreme Court. On Monday, the justices declined to hear the Trump administration's appeal of a federal court ruling that blocked the president from ending DACA, at least for now. On Tuesday, they ruled that legal immigrants who are arrested for minor crimes do not have the right to bond hearings — meaning they can legally be detained long-term. The Court also heard arguments in one First Amendment case — about public sector unions — and is set to hear arguments in another, about restrictions on what voters can wear to the polls. This episode: host/congressional reporter Scott Detrow, political editor Domenico Montanaro and national political correspondent Mara Liasson. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi everyone, this is Elizabeth at the beautiful Ohio Theater in downtown Cleveland waiting for the start of the NPR Politics Live Show. This podcast was recorded at 318 Eastern on Tuesday, February 27th. Things may have changed by the time you hear it. Keep up with all of NPR's political coverage at npr.org, on the NPR One app, and on your local public radio station. Okay, here's the show. Hey there, it's the NPR Politics Podcast. It's a big week at the Supreme Court. On Monday, the justices declined to hear the Trump administration's appeal of a federal court ruling

that blocked the president from ending DACA, at least for now. Then today, the court ruled that legal immigrants who were arrested for minor crimes do not have the right to bond hearings. That means they could legally be detained long term. The court is also hearing arguments in two First Amendment cases, one about public sector unions, and another about restrictions on what voters can wear to the polls. I'm Scott Detrow. I cover Congress for NPR.

I'm Domenico Montanaro, political editor. And I'm Mara Liason, national political correspondent. Mara, you missed a fun time in Cleveland. Oh, I wish I had been there. I hope I get to go on the next one. Domenico, it was a lot of fun. We had a nice crowd Friday night. We did. There was a ton of people there and all really nice. It was super great to meet all those folks, even a couple of college kids who drove four hours or so each way to come see us. Yeah. All right. So a lot from the Supreme Court. And let's just walk through this one at a time.

Let's start with these two separate cases on immigration. First is the one we've been talking about extensively for months now, or at least the topic that it was focused on. That's DACA, the Deferred Action for Childhood Arrivals program. March 5th had been the date that dominated that conversation. That's the date that President Trump set to end DACA when he made the announcement back in September. Congress had been treating it as a deadline. Then you had two lower courts rule that Trump could not end DACA

and the program had to continue past that date. And then instead of appealing to the next level, the Domenico, the Trump administration asked the Supreme Court to intervene. And the Supreme Court said no. No, the Supreme Court said no. Go in order. You skipped a step. And, you know, the Trump administration probably did that for a couple of reasons. They did it, one, because of timing. You know, President Trump, when he rescinded President Obama's executive order on DACA, he gave it six months. And what he wanted to do was say, hey, we need to come up with some plan to protect DREAMers, to protect DACA recipients. And guess what? We're less than

a week away now from that deadline, and Congress hasn't been able to come up with anything or at least anything that President Trump would accept. So what the Supreme Court said was, you can't pass go, you can't get past the Ninth Circuit, and you've got to go to them. Now, the second reason that they may have wanted to skip the Ninth Circuit, as Mara or anyone else who follows the court fairly closely would know, is that it's a fairly liberal circuit. So that court of appeals, the likelihood is that they'll wind up kicking it back, saying that they also find it to be unconstitutional and that they think that Jeff Sessions interpretation of the executive order to be unlawful is incorrect. That's what the lower courts had found. And they're banking on the fact that the Ninth Circuit will believe that anyway.

And they said, why waste all this time? Let's just go right to the Supreme Court. So, Mara, this has immediate political ramifications because, as we all know, Congress loves a deadline and often doesn't do anything until past the last minute. So now that there's clearly no way that this will be resolved before March 5th, do you see any likelihood Congress gets something done in the near future on something they just haven't seemed to have made any forward progress on? No. All right. That's about it. Look, politically, this was a great thing for President Trump. He lost this round in the Supreme Court, but the pressure is off of him

and he gets the credit from his base for trying to fulfill one of his campaign promises, which was to end the deportation protection for the DACA recipients. But he doesn't get the blame for deporting a bunch of young, very sympathetic teachers, first responders, you know, members of the military on March 5th. Now, this is going to go on for a while. It gives Congress more time to figure out a solution. But I think this was a good reprieve for everyone politically. It's bad for the DACA recipients. They're just in limbo for that much longer. Now, that is a hot take. It's interesting because this was a blow to President Trump, frankly. Legally. Legally, sure. It's a blow. Politically, we can maybe

spin it out to be something that helps everybody because, frankly, this won't get resolved for probably a year, Scott. But it wasn't going to get resolved before March 5th anyway. I think it was clear. Yes, but March 5th is next week. Right. Yeah. It was clear that Congress just has not been able to do any sort of forward progress. And the talk in the Capitol was, well, do we maybe just do a short-term extension as part of the next big spending bill and go from there? Right. And the question is, does the president want that? Because remember, the president was presented with a bipartisan compromise, the kind of compromise he once said he really wanted and would sign and even take the heat for. But that compromise would

have given him funding for his border wall and a path to citizenship for the Dreamers, which he supported. But he said, no, I don't want that. The deal has to include drastic curtailments in legal immigration. This morphed from a debate about a group of young illegal immigrants to the president wanted to make it about legal immigration. So what this basically means, according to the Department of Homeland Security, is that the way they've been operating after these court rulings is that DACA policy will be operated on the terms in place before it was rescinded on September 5th, 2017. That's from a statement I got from Department of Homeland Security about a week ago. So what that

means is if you're already in the program and your status is up for renewal, you can apply for renewal. They're operating as if President Trump never made that decision to end DACA as of right now until this is clarified in the courts. So if you were not in DACA before, you can't apply to get into it. And if your status had already expired earlier, you cannot apply to get a renewal for a lapse status. But if it comes up going forward or during this previous six-month window, you can apply for renewal. But I have to imagine it's a more stressful place to be in now than it was before, because now you don't know what a court's going to rule, you don't know when the court's going to rule it, and you don't know what happens afterwards.

No, that's why I said it's terrible for the DACA recipients. Some of them can go back into the shadows, although they've given all their information to the government. Or there will be DACA recipients, former DACA recipients whose protection has run out. Some of those people will be deported and they will be covered by the media. But I don't think there's going to be a program of mass deportation. But it makes March 5th essentially meaningless. Right. Because, you know, I talked to Javier Becerra, who's now the attorney general for the state of California, which was involved in this case. And he said that he just sees it as another date on the calendar.

Speaking of California, by the way, interesting character in this. Do you know who the head of the UC, the University of California system is who's also involved in this case? I do. Do you? Are you asking me? It's Janet Napolitano. You're right. She wrote the bill.

The former Department of Homeland Security secretary under President Obama. Yeah. So the direction from the Supreme Court was, no, you need to go through the proper steps. How long will the proper steps take? Well, what legal experts are saying is that the appeals courts are likely to take this up pretty quickly, as the Supreme Court had encouraged them to do so expeditiously, they said. So they'll take it up pretty quickly, maybe decide by this June, but then it has to be kicked back to the Supreme Court, which is a whole other process to file for appeal for the court to take it up pretty quickly, maybe decide by this June, but then it has to be kicked back to the Supreme Court, which is a whole other process to file for appeal for the court to take it up for arguments to be heard and for a decision to be rendered.

That's probably going to take until next June. Next June. In the meantime, we have a congressional election power. Control of Congress could change by then. So I wonder if that, Mara, do you think that leaves Democrats less incentivized to cut the type of deal that President Trump has been pushing them to? Absolutely. But I don't think Democrats had any incentive to cut the kind of deal that President Trump wanted. Right. Because he wanted to cut almost in half, I think, drop by 44 percent the amount of legal immigrants that the U.S. receives. That bill only got 39 votes in the Senate. It got the least amount of votes of all the various compromises that were put on the floor.

So I don't think Democrats have any incentive now. I think you would get 60 votes for a bill that gave funding to the wall and a path to citizenship for the Dreamers, which the president could have declared a huge win for him. The wall is something that Democrats had resisted tooth and nail and now and they were willing to give it to him. But often happens with the president. He starts out making a feint to the center and then ends up with the most maximalist, in this case, restrictionist immigration policy with the hard right of his party. And that's where he ended up in this debate. Doing anything on DACA may have already been dead, Scott, but, you know, this may have put the nail in that until after the election. Okay. Okay. So that was a case where the Supreme Court decided

not to get involved, essentially. But the court also ruled on a case that they did take up today, another immigration case. This one was about whether immigrants who were arrested and detained for minor crimes have the right to bond hearings. And that's a group that does include legal permanent residents and asylum seekers. The justices ruled five to three immigrants do not have that right. And Domenico, what does this mean for a legal immigrant who's arrested for a minor offense? They can essentially be held in detention long term, you know, for as long as their legal process plays out, you know, which could be indefinitely. Now, is this immigration

detention or any sort of detention at any sort of jail or prison? Well, this is an immigration detention facility. So, you know, this isn't like, you know, a federal prison or something. This is what happened in this case was you had somebody who was picked up for joyriding, who was a legal permanent resident. So we're talking about legal immigrants here. We're not talking about people in the country illegally, like we were talking about with DACA. We're talking about people who have legal status in this country, and yet picked up for these somewhat minor offenses. And they're put in these detention facilities. DHS is, you know, trying to have them go through a process. And then they want to see if these are people who they could deport if their status is thrown out because of that. And on average, these folks have been sitting in detention facilities for 13 months for crimes that they probably wouldn't serve jail time for in that amount of time anyway. So that's, you know, it was a huge civil rights case today. And it really brought up a lot of passions among the

justices. And we should note that Elena Kagan, the justice, Elena Kagan's wife was 5'3". She recused herself from this because of her involvement as Solicitor General for President Obama. And that's a reminder that the Obama administration had actually brought this case. This wasn't the Trump administration bringing this case. The Obama administration was essentially, you know, looking out for executive power and wanting to say that it had the right to do what it needed to do when it came to these detainees. The right to a hearing, the idea of habeas corpus are such central parts of the idea of the American judicial system. So what is the argument from the majority as to why this isn't needed? They're basically saying that it's backed up, you know, that immigration officials are authorized, they said, to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country. So as long as those proceedings are going on and they have to try to make the determination if they're legal,

then they can hold them for as long as they need to. Now, we should also say, though, this is not the end of the story. You know, the court actually said this has to go back to the Ninth Circuit. We talked about the Ninth Circuit before. It's a theme today. Right. So when they talk about remanded, you'll hear that from the court a bunch. That just means it goes back. We didn't like the way you interpreted the law. Reinterpret the law and come back to us. So we may hear about this again. What the Ninth Circuit had tried to say was that these folks have

the right to a bond hearing every six months, essentially a right to review their case and whether or not they could get out, you know, even while they wait for their trial. And the Supreme Court said the conservative majority that that interpretation was incorrect. Mara, President Trump almost always, when he talks about immigrants, talks about them through the lens of the criminal justice system, that immigrants come to the country, commit crimes, often murder people, and they shouldn't be here to begin with. That is the way that he frames the issue on the campaign trail and has recently, again, as president. Do you see a case like this making

its way into President Trump's rhetoric or the way that he talks about immigration? Oh, absolutely. I mean, one of the most interesting things we're waiting to see is whether other institutions in American life adopt the president's restrictionist, nativist approach to immigration. And this will be a big test of that. Domenico, the dissent here was worth pointing out because Stephen Breyer made the point to read this from the bench, which in the world of those Supreme Court, I gather, is a big deal. Yeah, it's like the Supreme Court mic drop version. What they do is, you know, when they get really fired up about something and remember, Ruth Bader Ginsburg had become sort of famous for this, why she sort of became the notorious RBG as the dissenter in chief, sort of. What Breyer decided to do this time was read all 33 pages of his dissent aloud. And here's some of what he said. He called this ruling legal fiction. He said, whatever the fiction would the

Constitution... Wait, wait, wait, Domenico. I'm sorry. Can you give the full Nina Totenberg, I am reading a Supreme Court transcript as you do that? Because otherwise I think we're kicked off NPR. Do you want me to start again? I mean, please. He said, we need only recall the words of the Declaration of Independence. In particular, its insistence that all men and women have certain unalienable rights and that among them is the right to liberty.

And he put liberty in quotes. He continued saying that the ruling was legal fiction. He said, whatever the fiction, would the Constitution leave the government free to starve, beat or lash those held within our borders? If not, then whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? He even hearkened back to slavery and said, since when, since slavery, have we said that people don't have constitutional rights in this country. You know, that shows you how seriously he takes this case and how much it might determine the nature of the United States of America. Are we a nation of immigrants? Do we give everyone on our soil the same rights?

Or are we heading to a place like many other countries that don't have, this would be down a slippery slope, but that don't have birthright citizenship, that treat immigrants with fewer rights than American citizens? It shows you that these big issues, big changes that Donald Trump has injected into American politics are now, some of them, being arbitrated by the Supreme Court. That was one of the aspects of the first initial travel ban in the first week or so of the Trump administration that led to so much outrage that it initially included people with green cards in the class of people who cannot travel into the country. That was since taken out. But but the initial push was that such a fundamental shift in how we view America. It certainly is. And again, let's see where the court winds up after the Ninth Circuit changes its interpretation or the way it goes about it. But clearly, Breyer was feeling like pessimistic that this court is going to decide favorably. All right. Well, we are going to take a quick break here. And when we come back, we're going to talk about two cases the court is hearing

arguments on this week. They both have to do with the First Amendment. Hey, just want to let you know that Invisibilia, NPR's show about the invisible forces shaping our behavior, is back on March 9th with a new season. This time, they're taking on some of the biggest cultural fights of our time. Russian hacking, reality TV, Me Too, just to name a few. You can listen and subscribe to Invisibilia on the NPR One app or wherever you get your podcasts. Okay, we are back. And the Supreme Court also heard arguments in a case yesterday that could have a dramatic effect on public sector unions. The big question at the heart of this case is whether

public employees who choose not to join a union can be required to pay partial union fees. Mara, this has been a big political fight in state houses and Congress and courts for decades, right? That's right. And one of the main goals of the right has been to try to defang the public employees unions who are pretty stalwart Democratic foot soldiers, donors. They're part of the Democratic constellation of interest groups, and their power has been chipped away at little by little. It certainly happened in the state of Wisconsin, and we saw public employee union membership drop precipitously after that. Yeah, that's the thing that led to Wisconsin Governor Scott Walker's recall, which he defeated and is still in office.

That's right. So this is very, very political, and now it's reached the Supreme Court, and this could be another stake through the heart of public employees' power. Okay, so Domenico, it seems like unions are just poised to lose this case in the Supreme Court that they do not have any high hopes at all for how this is going to go. Why is that? Yeah, that's true. Because there was a little bit of a roadmap for this already. There was a case that the Supreme Court took up two years ago in 2016. That was a very similar case that was decided for four. And you remember that was after

Antonin Scalia died. And so most people figured it would have gone for conservatives. But because the lower court had ruled against the person bringing it to the Supreme Court, it wound up staying and going in the favor that Democrats would like. Well, now it's a little different because Judge Neil Gorsuch, President Trump's appointee to the court, is now sitting on the court with an almost exact case in front of him. Now, here's what's interesting. Yesterday in court, in oral arguments, Neil Gorsuch said not one word. He did not ask a single question, which is uncharacteristic for him. This is not Justice Thomas, who before Scalia died, asked no questions almost ever, right?

This is Gorsuch, who does like to kind of engage with these attorneys, and he didn't do so yesterday. So it's a 4-4 vote on a polarizing political issue. And the key swing vote here could be Merrick. It could be Neil Gorsuch. Ha ha. Exactly. The question was, Mara, is this the first concrete moment of the Senate's decision to freeze Merrick Garland and never vote on him? Has a real world political

implications? Yeah, probably. I mean, I think that Neil Gorsuch is going to be the gift that keeps on giving for Republicans because he is extremely conservative. Many people think he's more conservative than the person he replaced, Antonin Scalia. And this is the bottom line. Whenever Republicans have some kind of problem with Donald Trump's behavior or his demeanor or his tweeting, they just take a deep breath and they repeat the mantra, Neil Gorsuch, Neil Gorsuch, Neil Gorsuch, and they feel better. So, Domenico, assuming Neil Gorsuch, lifelong conservative, doesn't suddenly shift to a love for public sector unions and votes the way we expect he's going to vote, what does that mean? What are the political implications? What are the workplace implications for a ruling like this? Well, let's talk about the workplace implications first, because the workplace implications here should be kind of spelled out a little bit. And what it means essentially is this guy, Mark Janus in Illinois, he is a child support specialist, and he doesn't like the politics of the union that's involved here. And, you know, they're liberal. They do a lot of work for democratic groups, as we've started to mention. Mara talked

about the democratic constellation of special interest groups. You know, AFSCME is part of that. They're a big piece of that. But, you know, what they also do is collective bargaining for health care, for time off. And what the conservative justices were saying in this case was, well, almost everything that a union does affects public policy. Therefore, they're political. Now, you know, they tried, they asked actually at one point, you know, give me one thing that the union does and negotiates for that's not political. And Justice Roberts asked that question and the attorney said, mileage. And guess what he said? Well, you mean that doesn't affect public policy? You're telling me that if the state has to increase the amount of mileage that they give to you as a worker, employees for state government and your salaries affect the state budget.

Right. That's almost the definition of the job. And that's the point that there was actually one point where Kennedy asked the attorney for the other side said, so would you say that if this revenue stream is cut off of people who don't join unions and still have to pay partial fees, if that revenue stream is cut off, would you agree that the political clout of the union would decrease? And the guy said, yeah, I would agree with that. And he said, well, then isn't that the end of this case?

So he sort of set him up there. So that's the workplace effect. What would this do for the political power of unions in terms of the amount of money they raise and spend? Well, look, you need money to be able to affect politics. You need money to be able to, you know, also help in negotiations in a workplace too, right? And look, about a third overall of people in this country in the 1970s, when the precedent in this case was established in 1977, about a third of people overall were in unions. Now that's down to 11 percent. And people think that it'll go even further than that if this is thrown out and overturned. corporate tax cut. Now, the judge that he appointed could really strike a blow against public sector unions and their political activities. This seems like a lot of big picture conservative wish list items that have happened despite the dysfunction. That's right. Whenever the Republicans are united on something, conservative judges,

tax cuts for corporations, they can pass it because in some cases, because they've changed the rules, so they only need 51 votes. But Donald Trump, for all of his mold breaking, has been a remarkably traditional, very conservative Republican president. And he's doing what any conservative Republican president would do in tax law and judicial nominations. And this is one of the reasons why his base is so happy with him, in addition to the new issues that he's injected or brought to the fore, like immigration and an anti-trade agenda. But for the most part, what's keeping traditional Republicans happy and unwilling to break with him is exactly what you're talking about. Judges and taxes. big money that's behind a lot of these cases that are anti-union. It's why this exact case could come up so quickly two years later, because they've got a whole slew of these

in the pipeline. Yeah. All right. So that is a case that, like we've been saying, really centers on an issue that's been a key part of the political dialogue for years. Don't necessarily think that's the case with the other upcoming First Amendment case the court is hearing. This is a challenge to a Minnesota law that forbids voters from wearing any kind of political shirt or button or anything when they go to the polls. Domenico, I assume this does not extend to the I voted sticker? That does not extend to the I voted sticker. Voting is not supposed to be partisan, Scott. Just the act of doing that. But what essentially this case boils down to is

that polling places, you can't do politicking. You know, they eliminated this a long time ago, and you're not allowed to do electioneering about within 100 feet of a polling place. Right. You see all the signs just on the other side of that line. Right. And you're not supposed to do that inside, obviously. But what this person did in Minnesota was decide to challenge that rule purposefully. He walked in with a please ID me button. Please ask for my photo ID. And he had a political shirt on. And, you know, usually what happens in these kinds of situations, let's say you forgot to wear – you're wearing your whoever 2020, 2016 shirt. A poll worker might ask you, hey, zip up your coat. You're not supposed to have any political gear.

People do. They comply. They say, oh, OK. This individual went in and decided that he wanted to make a big deal of it. Started talking about the fact that he had this button on and wanting to be asked for a photo ID when Minnesota doesn't have a photo ID law where you need to do that. So they felt it was disruptive. They asked him to leave the line. And lo and behold, you've got yourself a lawsuit. All right. So a lot of Supreme Court in this pod. So what else should we know that that's coming down the pipeline there? Something near and dear to your heart, Scott. Sports gambling.

Oh, okay. Go on. There's a decision that we're still waiting for on sports gambling that was actually brought by Chris Christie when he was governor of New Jersey, because New Jersey's looking to kind of reinvent Atlantic City. Re-re-re-re-re-invent Atlantic City. Right. And this involves billions of dollars, potentially, you know, millions of people and all of the professional sports leagues who all want a piece of the action. Yeah. And that is such an interesting disparity right now because you've seen increased legalized

gambling in so many states. And yet Sportsbook is basically still just Las Vegas. Yep. With a few exceptions. All right. So one last non-court question as we wrap this up. Mara, we're just seeing reports that Jared Kushner's security clearance has been downgraded. What do we know about that? And what's the big picture context for why this was under review? Kushner had an interim security clearance. He's lost that. That was a top level security clearance, but it was just temporary while he was waiting to see if he could get a permanent clearance. Now we're being told that his clearance is being downgraded to secret. Presumably there's no chance that he ever was going to get a top secret permanent security clearance. The big picture means that he won't

be able to read the presidential daily brief and to have access to some of the things we presume he's been having access to as he carries out the president's policies in the Middle East, Mexico, and other places around the world. We also know that Jared Kushner's spokesman, Josh Raffel, is going to leave the White House and Reid Kordish, who is a member of his innovation council, is also going to leave. The big question is, will this downgraded security clearance have a material change in Jared Kushner's ability to do his job? The White House has said no, but this does mean that the president's son-in-law will no longer have the kind of access to information that he did before. And and we should we should remind everybody that that security clearances were under increased scrutiny

after Rob Porter was fired from the White House because of reports that he had assaulted two different women he had been married to at the time and yet had been allowed to work in the Oval Office, even though the FBI had not given him that full-time security clearance. All right, that is it for today. We'll be back in your feed soon, and you can keep up with all of our coverage on NPR.org, NPR Politics on Facebook, and your local public radio station. You can also catch Up First every morning. Usually, one of us is up on it. I'm Scott Detrow, I cover Congress for NPR. I'm Domenico Montanaro, political editor. And I'm Mara Liason, national political correspondent. Thank you for listening to the NPR Politics Podcast.

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