David French: The Birthright Citizenship Ruling Should've Been 9-0

The Bulwark Podcast

The podcast discusses recent Supreme Court rulings on birthright citizenship, TPS revocation, and executive power, with David French criticizing Trump's attempts to undermine constitutional norms while highlighting judic

Key takeaways

• Birthright citizenship upheld 6-3, rejecting Trump's EO

Transcript preview

Hello and welcome to the Bullard podcast. I'm your host Tim Miller. Welcome to the show Opinion columnist for The Failing New York Times. He's also co-host of Legal Podcast Advisory Opinion. Advisory Opinions. He's a JAG officer. French. How you doing? Tim, it's great to see you. Do we have anything to talk about today? We have a few things. We have a few things. Like about two minutes before I got down, I got a blaring headline in the blarks like Samuel Alito resigns and I was preparing some Martha Ann Alito jokes. She had flipped the flag upside down at her home to mark the moment, but apparently NPR just kind of fucked up. So that's good. So now we just have to go through the rulings instead. All I saw was no resignation. I saw was no resignation. I did not know that anything somebody had popped something off. It happens. You know, you got an itchy trigger finger on the publishing button. So we'll keep an eye on it as the show continues. But the news of the morning, the biggest news of the morning is that birthright citizenship is alive and well in the country. It was the six to three decision. They struck down Trump's E.O. Six three was pretty notable to me, the three number as as opposed to zero or two. Gorsich was the third descent, but I was wondering what your takeaways are. take away is thank the Lord this is over. What a ridiculous diversion to try to change centuries of American law and precedent because of your malice against immigrants. I'm glad the Supreme Court ended this thing. I'm glad that's over. I am surprised by the three. I wouldn't have been surprised if it was seven two after oral argument. I am a little surprised that Gorsuch joined in this. So I'm surprised by how narrow the mark. was more of a 513, Kavanaugh was concurring in part and dissenting in part. But bottom line, 6-3. Yeah, I'm just on Kavanaugh, this is all coming in quick, but it seems like he basically said that the law Congress passed in the 1950s is the reason why birthright citizenship is still allowed and that Congress could overturn that law if they wanted to. So it wasn't unconstitutional grounds. Is that right? Right. You know, so the 14th amendment says. in its text that it empowers Congress to pass laws to facilitate the enforcement. And so, yeah, the bottom line is, Donald Trump, 6-3, Donald Trump could not do it. You had five very solid votes for the idea that, look, this is just the Constitution. The Constitution says. And then you have Kavanaugh, the statute says. And so all of this is sort of like, we're in real-time digesting. There might be something at the end of this, Tim, where somebody somebody says they end, they end p-art it. They said something that they shouldn't have said about interpreting. But we're trying to, you know, we're in real time trying to figure this out. But the bottom line is, it's gone, it's dead, that Trumpio is gone, it's dead. Birthright citizenship is still the law of the land. I don't see any reasonable prospect for it not being the law of the land. Anytime in the near to medium term future, this debate is settled for now and thank the Lord. Well, good. In time for America, American flags and know that isn't it great we're not fundamentally changing American citizenship to be more exclusive on America 2.50 it is great it is great it is not that great that the president of the United States wanted to fundamentally change the nature of American citizenship to make it more exclusive on America 250 but the fact that he failed in some ways it's poignant honestly half full. Half full yeah we're in a half full podcast all right well we'll see how that goes. This is not a new one we have a couple of I just want to throw this in the immigration bucket, which was the TPS ruling last week, which I've been waiting to get your take on. Always when analyzing Supreme Court cases, you have to kind of separate inside yourself, okay, what are your feelings about the actual law and actual ruling and feelings about the policy itself? Because sometimes those are in conflict. On the policy itself, I'm just so I'm just so outraged by it. It's so tragic. It's insane. Like the idea that somebody that came to this country under temporary protective status has been working, have kids, have kids, have kids, have kids, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have kids here, have as a good member of their community and now like who knows they can be worried that the federal agents are going to knock on their door and send them back to a failed state like it's crazy just on just on a practical level yeah on the legal side of it to and I know you and I agree on that on the legal side of it you know this is more your expertise but I was seeing some interesting analysis of this last week about basically the court saying that like this is outside of their purview and so like taking that to its logical conclusion and so like taking that Democratic president could wave their wand and make anybody protected immediately which would have been news to Barack Obama who tried to pass DACA several times but I don't know what what do you think? Well this is one of those cases Tim that I'm a hundred percent with you that the administration is being unspeakably cruel here, unspeakably cruel, vicious I think they're being blatantly racist I don't think that requires trying to interpret dog whistles it just requires us to listen to bullhorns. At the same time the law here has written is a terrible dreadful law because what it does is it gave an enormous amount of discretion to the administration and then had another element in there that said that revocation of TPS status is not reviewable by the courts. So in other words the actual law here is congressional malpractice that's at 11 on a scale of 1 to 10 because it's just taking congressional prerogative authority and handing it over to the president and then even doing something worse than that Tim writing into the law that judges cannot interfere. So this created a real problem if you're wanting to challenge the revocation of TPS status and so what that meant was the argument became okay well we can't review the actual decision but we we are asking the court to review the process that led to the decision. Now the way I talked about this case right after, that's a hard argument to make. I'm not saying it's like a frivolous argument, it's not a silly argument, but it's a hard argument to make. The odds are against you if you're asking a court to review something when a statute says it's not reviewable. That puts you behind the eight ball. And so there was a lot of anger at the court over that that I think was misplaced, which was, why aren't you talking to Congress about passing these laws that give so much discretion to a president to a president. At the same time there was another element there which was was this a violation of the Constitution in other words did all of the racist statements mean that this is something that was beyond that the Constitution of course sits over a statute a statute is subordinate to the Constitution and so when they targeted the Haitians for example racially did that mean that they committed a constitutional violation that the court could remedy that would mean that the statute, that statutory discretion didn't come into play. Okay, that was a more complicated second question and that's when where I've got problems with the courts reasoning on that part of it because here's what they said. They said, look, there were a lot of racist statements that Trump made, but so far the Trump administration has cut off every single TPS designation that has come up for review regardless of what country it's from. So he's not just. targeting people in the race, he's getting rid of all TPS designations as they come up. Now the counter to that is, well every TPS designation that's come up has so far been from a majority minority country. And so then the next question is, is there a majority white country that has a TPS designation? Yes, Ukraine, but that hasn't come up yet. And so the court was trying to, was essentially saying, well, look, yes, there was this vile. rhetoric, but they're just canceling TPS to everybody, which they have the discretion to do. And then there was the Alito, had the Sopranos defense, which is that everybody gets vile rhetoric against them sometimes. I mean, the Italians, the way that they treat Columbus Day. Right. Yeah, it's really unfair. And so, but also at the same time, and this is just, to stop me if we're just getting too much into the weeds here. No, please. I felt there was an inconsistency between the way the Supreme Court talked about race and the in the Hawaii gun control case and the way they talked about race in the TPS case and here was the difference. Explain, I haven't covered the Hawaii case. So just, just, just to give people right quick what happened. Yeah, my goodness, we're in it now, Tim. We're in it now. Okay, that's good. So the Hawaii case was this gun was a case involving a gun regulation that said in Hawaii that unless a private property owner like a store or whatever clearly indicates that you can bring a gun inside, by default, even if you have a you cannot carry the gun in. So private property by default in Hawaii is barred for guns, but a owner can say yes and allow. And the Supreme Court struck that down as being overly restrictive of gun rights. But when Hawaii was trying to justify this regulation, it said it was similar to a law in Louisiana, your Louisiana Tim in 1865. Oh great. That banned. That's always a good model. Yeah, 1865, red flag flying right. And at least purportedly on its face appeared to be a race-neutral ban on people bringing firearms onto private property. And they said, see, this goes back to 1865. And the majority was like, shame on you, Hawaii. These were the black codes. These were the laws that were passed and then enforced against black citizens. So even though the law said on its face that nobody could bring a weapon onto private property without the property owner's permission. The reality was, this was a reality was, this was a aimed at black citizens. And so the majority of the Supreme Court said, don't look at these, don't look at these, because they are discriminatory. But then you flip around and you go to the TPS case. And here you had very racist statements against the backdrop of a sort of presumably neutral application. And they said, here, well, the neutral application is what matters, not the racist statements. You've got to kind of figure out how are you, how are you dealing with overt racism from public. officials and when does overt racism for public officials trigger that enhanced constitutional scrutiny? This is going to take us to the Calvin ball debates that I want to have at the end once we go through all of these rulings to answer people. I know it's Calvin and Hobbs in the cartoon. Calvin played a game where he just changed the rules all the time whenever he wanted to and there's some accusations that's what's happened on the court where it's like, well, you know, you can't. In this case, we want to protect gun rights. And so the racist premise is premise is the Haitians right so the racist premise we're not going to consider as much that's one one potential way to look at it okay let's go to the firing power because there is some I think interesting potential subtext you know in that category on this as well so the two big rulings were slaughter and cook they can go different ways basically this is about the executive's power to fire people at independent agencies the court ruled in Trump's favor in slaughter case can fire people at independent agencies at will. Trump's bleat about this, what happened, he's very excited. Today's historic slaughter decision by the Supreme Court is the greatest increase in presidential power in 100 years, such a monumental ruling and such an important time. He did another bleat to show the importance of the slaughter case, 90 years of president, 10 years less, has been completely and unequivocally overruled, greatly increasing presidential power at a time when it is most needed. You can see how I'd be a little alarmed by those comments. Why don't you give us just kind of a summary of the cases? Yeah, also listeners don't rely on Donald Trump for your Supreme Court analysis. Okay. Well, I think that it's important to see how Donald Trump is interpreting the Supreme Court rulings, maybe. Yeah, maybe that could be something that's telling, but anyway, go ahead. So this is the, I'm not going to say the culmination, because it's not. It's part of a long-running trend with the conservative majority in the Supreme Court and that is this. So the Supreme Court. more authority over the executive branch, but it is at the same time diminishing the power of the executive branch. Okay, what do I mean by that? What the Supreme Court did in Slaughter is basically say if you have an executive branch agency, if this is an agency that exists within the purview of executing the laws, that's part of what it does is it executes the laws, and it has a presidential appointee at the top of it. That that executive branch agency and really here's the core of the ruling is going to have to be accountable to a political figure whether it's a president if it's an executive branch agency it has to be accountable to the president if it's a legislative agency it has to be accountable to Congress you cannot create an agency with law-making law enforcement powers that is not accountable to an elected official and so these independent agencies which have had often multi-member commissions staggered terms were created often with the purpose of, well, they have independent expertise that they should exercise regardless of who's in office. And that problem with that is each one of these independent agencies exercises enormous power, law-making power, law enforcement power, and this is the conservative, a very longstanding conservative argument. That's creating, in essence, an additional branch of government, one not contemplated by the Constitution only contemplates branches of government that are either run by judges, the judicial branch, or elected officials, the President or Congress. And so, but the slaughter case is saying is if you are a lawmaking part of government, you are accountable to the President. Now it is not saying that civil service rules are gone, that the President can do whatever he wants with the executive agency, that the President has unlimited authority or control over the executive agency, the executive agency, that the President has unlimited authority or control over the far from that. But it is saying that if you're a law enforcement agency, you're under a president. And so what that will mean is the next Democratic president can then sweep out all the Trump appointees at the top of these agencies. They don't have to linger around like they would under previous rules. So this really does cut both ways and it's different from Cook in interesting ways and similar to Cook in interesting ways. And yeah. It's fascinating. Yeah, okay. Well, let's get to cook. There are a couple of layers here, and I just you just mentioned one. So we'll just start with that. I do think, you know, Donald Trump is still president for two and a half more years. I don't know if you're aware of that. So things that give him additional power make him feel like he has additional power do concern me. Oh, me too. Yeah, cutting the other way though is, cutting the way though is, is, who might have corrupt or malign intent within the government and you know Supreme Court's making that challenge a little easier on them so that is I do think that's much easier yeah silver lining to this but what's the other side of a silver lining do we have an in dark clouds and silver lining okay I've got a couple dark clouds too but let's talk about the cook ruling there's some technical parts of this you should maybe get into but like and it's at the top level it kind of seems like and it's at the top level it kind of seems like at the top level it seems like it seems like at the top level just carving out the Fed from what you just said because for kind of reasons they're like well the feds existed it hasn't really it's only existed since 1910 but it had a precursor that existed since the beginning and so it's kind of like we'll sort of waive this rule for the Fed that that's my layman's understanding so Tim I've been mulling over this ruling for like 24 hours and thinking about it and I've read it twice now all the way through and I'm kind of where you are and let me but not I'm not all the way there this let me steal man and I look I'm super glad the case came out the way that it did I think I think it is actually a sound ruling and I'll explain why but I think we have to own it okay you have to just own it and so here's what I mean so if you read the majority they're basically saying in both text and subtext that the Fed is just different it's just different from any other agents the FCC. It's just like SEC football. It's just built different. You just can't compare. And you know that's