The shadow docket strikes once again! We break down the Court's unusual immigration ruling in AARP v. Trump (no, not that AARP!), and then briefly discuss the much-heralded ERISA case (Cunningham v. Cornell). But first we discuss some blog news, some SCOTUS news, and some SCOTUSblog news.
The shadow docket strikes once again! We break down the Court's unusual immigration ruling in AARP v. Trump (no, not that AARP!), and then briefly discuss the much-heralded ERISA case (Cunningham v. Cornell). But first we discuss some blog news, some SCOTUS news, and some SCOTUSblog news.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, you've been holding out on me.
Will: Wait, what did I do?
Dan: You didn't tell me something. You didn't tell me that you won the Digital Communications Award as part of the University of Chicago Academic Communicators Network Award. Were you going to tell me about that?
Will: I was not going to tell you about that.
Dan: They list your co-hosting of this podcast as one of the things that earned you this award.
Will: They do, and I'm very grateful for that.
Dan: Baude uses podcasts, blogs and social media to distill complex legal issues and influence national policy debate. Your Section 3 stuff obviously influenced national policy debate. Do you think we're influencing national policy debate here?
Will: [laughs] I don't know. I think people listen to the show, but then they don't always talk about it. [Dan laughs] It seems like-
Dan: Yeah. Yeah. Well, they don't have to talk about it as long as it's influencing their debate. Like, they don't have to give us credit for us to be influencing debate.
Will: I think we're influencing the debate.
Dan: Elsa says, you focus your research on election law, federal Indian law and the constitutional law of interstate relations. Is that accurate? That doesn't seem quite accurate to me. Those are things you're currently interested in.
Will: Yes. I tend to update my faculty website every few months with whatever my current paper topics are. So, I think that's what it currently says.
Dan: Okay.
Will: And you can always tell. Therefore, sometimes I get an intro that somebody got off the website 18 months ago. It says, “Baude's current work focuses on Section 3 of the Fourteenth Amendment.” That's so last year.
Dan: It also says, you're a leading contributor to the law conspiracy, which I think is no longer true post the establishment of the Divided Argument blog, blog.dividedargument.com. Please sign up for emails, if you haven't.
Will: So, true story. That's why I didn't share this with you, Dan. I thought you'd be too annoyed by that.
Dan: No, I'm happy for you. You don't get enough accolades in your life, Will.
Will: I appreciate that. No, I just meant-- I told them about the new blog and I told them going to write about a blog, they should mention that we have a new blog and they didn't put it-- [crosstalk]
Dan: They still refused.
Will: And then, I thought you would be annoyed that the blog wasn't mentioned and it'd better just to not tell you about it.
Dan: I don't get annoyed about stuff like that as long as it gives me material, I can give you a hard time about other stuff. So, I just got back from South Bend, Indiana, Notre Dame Law School doing a faculty workshop there. A lot of friends of the show there.
Will: Great law school there.
Dan: They are pushing us to come do a live show there. I may have suggested the answer to that was yes. So, you and I should talk about that offline. But very much hoping we can pull that one off.
Will: Great. We got an email. It's a Supreme Court related email.
Dan: Okay, lay it on me.
Will: Okay. This one is from an email address and the person didn't even include a name, so I can't tell anyone who it was from.
Dan: Okay. It's mysterious.
Dan: But it was, “Hi, guys. I love the show. Listen to every episode. Thanks for all the hard work you put into it. I'd like to ask a question that links the first and second halves of your last episode. Does the harmless error principle apply to the unlawful removal of Mr. Abrego Garcia in El Salvador?” Because we talked about harmless error in the administrative law context and we talked about this Abrego Garcia case.
And then, the person goes on to make several arguments about “Why Abrego Garcia is now statutorily ineligible for withholding of removal under theory that MS-13 has now been designated a terrorist organization and that makes him ineligible for withholding of removal. So, wouldn't the original error be harmless? Thanks in advance for considering the question. I appreciate any thoughts or insights you may have.”
This is a political point we've seen made around all these deportation fights. Like, does it really matter? But that was an interesting legal way to put the point.
Dan: What's the answer?
Will: I don't think it works.
Dan: I have no idea.
Will: Maybe it depends on the harmless error standard is actually an interesting question. So, as Judge Wilkinson said, the last time the Fourth Circuit got [unintelligible [00:04:15] Abrego Garcia, the government says that he's going to be ineligible anyway. It doesn't matter. Maybe, but maybe not. The evidence we have of his membership in MS-13 is somewhat thin and more importantly six years old. I think the question is whether he is currently a member of a foreign terrorist organization. I just don't think we know. And so, I guess if you thought that he had to prove the error was harmful beyond some standard, like we do in some contexts, maybe that's an interesting question.
Dan: Yeah, I guess I just don't know, is there a special immigration harmless error standard, I have no idea.
Will: No, I don't think there is. So, I think we'd be making this up.
Dan: It would just be the normal civil--
Will: Yeah. There's this one other general question about this case, which we can't go into now, but what law is even really applied here? Like, what is the basis of the cause of action, is it Ex-Parte Young or is it mandamus, what are the rules for this? Just because what the government did was so obviously mistaken and they immediately conceded it to be a mistake, I don't know that I totally understand exactly where this comes from. We've just now leaped to the part about the government trying not to do it.
Dan: Okay, another reader, I guess, listener. You're the one who always says readers by accident.
Will: Well, now, we do have readers because of the blog.
Dan: Yeah. No, we do. By the way, we're experimenting with pictures on the blog. We're doing some ChatGPT images for the blog. You're a heavy ChatGPT user, but you had never used it to generate an image, which I thought was funny.
Will: No, I'm a text guy. I'm a deep research guy.
Dan: Yeah, apparently. You get super annoyed at me whenever I make my Muppets.
Will: I'm not annoyed.
Dan: I made one of you and you didn't even acknowledge it. You just pretended I didn't send it to you.
Will: If I was annoyed, I would have said, “Dan, that's annoying. Stop.”
Dan: No, I think that you're very restrained. And so, I think that you know that it's actually like the shadow ban. It's better to just have me shouting into the void.
Will: You're just really into this Muppet stuff, and I don't really get it.
Dan: They're funny. They got a lot of traction on Twitter, doesn't that? That's empirical evidence that people find them amusing, right?
Will: Well, I like attention.
Dan: But yeah. [chuckles] Okay. Another listener wrote in response to my question on either the last or the previous episode about, “Could the AG Just completely overrule the Abrego Garcia withholding of removal and just say, he's deportable and cancel that to the extent that immigration is all delegated authority by the AG.”
But this listener said, “The reason that the AG can't do this is because Mr. Abrego Garcia did not have a stay of removal, but rather withholding of removal, a very narrow form of relief that bars the removal of a noncitizen to any country where they're more likely than not to face persecution. Unlike asylum, which is discretionary and can be properly denied to an applicant who meets the qualifying criteria, withholding is mandatory for anyone who meets the threshold risk of persecution and isn't subject to one of the statutory bars.
So, because he had been granted withholding of removal, the AG or her delegates have no room to render him properly removal to El Salvador without going through the procedures for revoking that status set forth in The Code of Federal Regulations, which requires DHS to make certain factual showings to an immigration judge that will later be subject to judicial review.” So, there you go.
Will: That's interesting.
Dan: Yeah, it's a good answer.
Will: One other Abrego Garcia thing while we're here. Have you noticed that this case has not gone back to the Supreme Court, and that's interesting?
Dan: Yeah. So, where do we stand with that right now? It's gone to the Fourth Circuit a second time.
Will: Yes. So, the district judge began expedited discovery and said, “All right, the government has not been forthcoming of what's going on. So, we're going to have two weeks of intensive depositions and interrogatories about what's going on and what you've done. And is there an agreement with El Salvador and what does it say?” And then the government immediately went to the Fourth Circuit and said, “This is madness. Don't make us do this. This is a misunderstanding of the order.” The Fourth Circuit ended up with Judge Wilkinson, who was the most unsure vote the last time they launched in the Fourth Circuit, but it had been Judge Wilkinson.
Dan: And who charted a course that--
Will: That the Supreme Court followed.
Dan: Yeah. Like, let's focus on effectuate, right?
Will: Yeah. So, it went back to the Fourth Circuit.
Dan: Yeah, facilitate.
Will: Yeah, let's focus on facilitate. I'm not so sure about effectuate.
Dan: Yeah.
Will: Right. It went back to the Fourth Circuit, and Judge Wilkinson wrote a very strongly worded opinion telling the government to cut it out, basically.
Dan: It's a classic. You can tell it's the judge really wrote a bunch of it, or at least very heavily revised any clerk work product, because it's very much in his voice. It's pretty striking from a conservative judge.
Will: Yeah. You clerked for Judge Wilkinson.
Dan: I did. Yeah. And so, I've texted with a few other Wilkinson clerks and we all agreed that this was just like classic judge. This is one that I think he's going to be remembered for. I think it's an all timer.
Will: So, there's a first paragraph that's just like the relief the government asks for is the following. “This is both extraordinary and premature. We're not going to do this.” But you're like, “Okay, this is a fairly strong language.” And then, you get to the second paragraph. “It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.
Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Dan: It’s uh..don't hold back.
Will: Yeah.
Dan: GHW tell us what you really think.
Will: And then, what's interesting is they did not then go to the Supreme Court to say, “You've got to stop this.”
Dan: Yeah. Yeah, that's a hard application to write, basically, that Judge Wilkinson is way off the reservation, this crazy liberal judge, right?
Will: Yeah. Last time they lost in the Fourth Circuit, they had Judge Wilkinson a little bit more sympathetic, but still ultimately against them on facilitate, and they went to the Supreme Court and they got the order we talked about on the show, which Stephen Miller and Pam Bondi said in the oval office on TV was a 9-0 victory. [chuckles] So, if you believed that you had won 9-0 last time, you might be expected to go back to the Supreme Court.
I assume at some point somebody told somebody that they should actually read the order and maybe somebody realized it was not a 9-0 victory. [Dan laughs] And so, going back might result in more not 9-0 victories. But I'd love to be a fly on the wall. I'm sure the president wanted to go back to the Supreme Court. So, somebody must have told the president or had to tell the president like, “We're not actually going to do that.”
Dan: Yeah. And that may have been recently confirmed. SG John Sauer, I recommend very much Jack Goldsmith's recent post on his and Bob Bauer's Substack, Executive Functions, basically about the quandary that SG Sauer is going to find himself in shortly, where the SG's office has this tradition of being very candid with the Court and holding itself up to very high standards, and that really is going to run headlong into the necessity officials in the Trump administration to do whatever Trump wants say, whatever he wants them to say.
It's not totally clear how that's going to get resolved, that those two obligations are really going to be in more and more conflict and it's probably not going to end happily for him. I think being SG is a great job. But under these circumstances, I think it's going to be very difficult.
Will: Yeah. I feel like he's going to get either fired or disbarred [Dan chuckles] by the time his term is up.
Dan: Hopefully not both, right?
Will: No.
[laughter]
Will: You pick a side. Not disbarred from all the bar. But I mean--
Dan: Maybe from the Supreme Court Bar. It is not unimaginable, I would say.
Will: Yeah. But maybe not. Maybe he will walk the tightrope.
Dan: Yeah. Can I say one more thing about the Wilkinson opinion? I have a post on our blog just to push it again, blog.dividedargument.com, a couple days ago using the Wilkinson opinion as a jumping off point. And just one thing, the thing that I found maybe most notable about it and there's a lot that is notable, is that it has this weird footnote. So, it says in the text, “If today the executive claims the right to deport without due process and in disregard of Court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?”
Footnote. And the footnote is from two news articles from last week, were reporting on Trump saying the next step is doing this to homegrowns, by which he means people who were actually United States citizens who were born here. It's unusual to see, at least I thought, to see a Court just citing to news articles from that week about remarks the president has made to suggest that there's something to be worried about here.
Will: Yeah. Especially somebody as buttoned down as Judge Wilkinson, frankly.
Dan: Yeah.
Will: Yeah. I guess a homegrown in Trump world could be somebody who was born here but is not a birthright citizen. Under the Trump invented power to deny birthright citizenship to people who are born here, right?
Dan: That's possible although at least the way the stories are reported, it didn't seem to be drawing a super nuanced distinction.
Will: Right.
Dan: It seemed to be more like he was saying, let's do this to just people who commit [chuckles] violent crimes here.
Will: Right. Well, not the next executive order might say anybody who trump says committed a violent crime loses their citizenship, because they're bad.
Dan: Yeah. Okay.
Will: Okay.
Dan: So, yes. So, then the news about Abrego Garcia at the Supreme Court is that there is no news.
Will: Mm-hmm. And that's going to be a small, good sign.
Dan: Yeah. Yeah, I think so. But as always happens, I'm sure there will be news that will occur in the window of time between recording and editing of the episode and making what we say here both moot, wrong, and irrelevant. But it is what it is.
Will: Yeah, that's true. There's going to be a fire breathing application from John Sauer filed today.
Dan: Yeah. Yeah. They will produce the most crazy 5-4 order that everyone will be talking about, and then this episode will seem very irrelevant and quaint. But that's the cost of doing business when you're a medium- to cool-take podcast.
Will: Yeah.
Dan: Okay. But that's not to say there isn't some significant Supreme Court news in the immigration, deportation to El Salvador space. Just not in that particular case.
Will: Yeah. Do we want to talk first about SCOTUSblog?
Dan: Oh, yeah, that's another little piece of news that's interesting, which is that SCOTUSblog, the famed blog that provides so much invaluable coverage of the Supreme Court that for many of us is like the first place to go when we want information about a case rather than going to supremecourt.gov. For many years, it was the only place you could get the filings, because there was no electronic docket, and you had to go to SCOTUSblog to get the briefs.
Will: Yeah, even people who worked at the Court sometimes had to go to SCOTUSblog to get the briefs.
Dan: Yeah, I know. When I was clerking, we would immediately go to SCOTUSblog, it was just easier. You can get the stuff on the electronic docket now, but it's often just easier to find on SCOTUSblog. So, it's being sold. I had thought it was just owned outright by Tom Goldstein, the famed Supreme Court litigator, who's now facing serious legal jeopardy. So, it made sense to me that it was going to be sold. One of the articles said, it was actually owned at this point by a nonprofit. So, I don't totally know what the ownership structure was. I don't know how and when it was transferred to a nonprofit.
Will: Me neither.
Dan: But it's being sold to The Dispatch. What do you know about that?
Will: Right. The Dispatch is a, depending on which part of Twitter you believe, either a right-wing media outfit or a left-wing RINO media outfit, because it's not MAGA enough.
Dan: Which side are you on that?
Will: I think it's great. [chuckles] So, here's the thing I'm worried about though. So, they host the Advisory Opinions podcast by Sarah Isgur and David French on which I've appeared a couple of times and which credit to them, they discuss and link to a blog post on the Divided Argument blog in their most recent episode about the birthright citizenship oral arguments. So, it's a great podcast, but it's a little bit our competition.
Dan: Oh, gosh. Now, they're going to have the inside track.
Will: I guess I'm wondering, do we have antitrust claim of some kind? If SCOTUSblog and now Advisory Opinions, and they're already putting out these tweets about how they're going to become the place for sort of– [crosstalk]
Dan: Yeah. [crosstalk] Product-tying claim.
Will: Yeah, I'm a little worried about us, Dan. We've got the blog and the podcast too, but the competition is fierce.
Dan: Yeah. Do we have antitrust injury? You got to have antitrust injury, not just--
Will: Would that require us to have sales or something?
Dan: Well, you have to show an injury to competition, not merely an injury to a competitor. So, we'd have to show consumer welfare is worse off.
Will: Okay.
Dan: Given that we make no money from this podcast other than the occasional T-shirt sale. I think that would be hard to show.
Will: Some aspects of The Dispatch are for subscribers, but they've promised already that SCOTUSblog will remain free for everybody, as it always has. So, they're just doing it as a public service and part of their brand.
Dan: Yeah. I heard a rumor some years ago that there was a period of time when the Washington Post was buying all these blogs, including The Volokh conspiracy-
Will: Oh, yeah.
Dan: -and putting them semi behind paywalls that Tom Goldstein had offered to sell them SCOTUSblog for $10 million, and that was too high a price. But that is an unconfirmed rumor. I do not know if that is true. I think it's an interesting story if it is true. But I would be curious what the asking price was.
Will: That is interesting. There was a time they were into that although the paywalls got worse and worse over time, I will say.
Dan: Yeah, that's why The Volokh conspiracy ended up backing out, right?
Will: Yeah. That's one of the main reasons.
Dan: Okay. But maybe the post would want The Volokh conspiracy back, because-- What's the Post's new motto? Like, “Free markets, free people” or something. You know what I'm talking about?
Will: Yeah.
Dan: Basically, the Wall Street Journal's [chuckles] motto, just slightly different.
Will: Yeah. I thought they were going to write about free markets and individual liberty, although they said they were going to write about that before, I mean, shortly after Trump was inaugurated, but before it became clear how much Trump was not in favor of free markets or individual liberty.
[laughter]
So, I'm not sure they really meant that as a principled stance or it's just like a libertarian rebranding of being on the side of the regime.
Dan: Did you see the snide WSJ Op-Ed page opinion editorial response to that?
Will: No.
Dan: They were like, “I'm happy to have you on the team, but maybe people should go with the original, which is what we've been doing for many years.” So, that was amazing. Okay. So, now we got to talk about a real case.
Will: And one more thing. The Supreme Court did-- There's no substance to talk about this, but there was something interesting. When I went to the Supreme Court’s orders list to download all the stuff for today, I discovered some documents that Chief Justice John Roberts sent to the Honorable James D. Vance, Mr. President, they address him. Do you know what these documents were?
Dan: No, I totally missed this. Is this on the Orders of the Court page?
Will: Yeah.
Dan: Are these the new Rules of Procedure?
Will: Exactly. Proposed amendments to the Federal Rules of Civil Procedure, Federal Rules of Bankruptcy Procedure and Federal Rules of Appellate Procedure, which have been approved by the Rules Committee and now the Supreme Court. And under the Rules Enabling Act Procedures, the Supreme Court then sends them to the speaker of the House and the President of the Senate, and they become law if Congress doesn't act. So, those are out.
Dan: I didn't realize that they went to the VP.
Will: Yeah. So, they go to the VP in his capacity as the President of the Senate.
Dan: Yeah. I didn't know that his formal styling was James D. Vance.
Will: Yeah. So, that's interesting. Those will presumably become law soon.
Dan: Any cool stuff in there? I know a friend of the show, Steve Sachs, is always finding weird loopholes in the Rules of Civil Procedure and then sending them in to get fixed.
Will: There was nothing in it that seemed interesting to me.
Dan: Okay.
Will: So, if our listeners can tell us what we missed, maybe we'll tell people later.
Dan: If there's nothing in there that seems interesting to you, then [chuckles] I don't know who it seems interesting to. So, you're interested in many, many things.
Will: Yeah. All right. Shall we talk about our big non-case?
Dan: I keep trying to get there and then you keep having more stuff.
Will: That's usually your jobs to delay.
Dan: Okay. No more delays. It's time.
Will: All right. 24A1007 A.A.R.P. v. Trump.
Dan: The confusingly named, AARP.
Will: Yeah, they've gone to the district court already and gotten this renamed. The actual AARP filed a motion in the district court.
Dan: Really?
Will: Yeah, requesting that the case to-
Dan: We totally missed that.
Will: -be recaptioned, because they were worried people would think they were [laughs] litigating against the president and they're a nonpolitical organization.
Dan: When I first heard of this case, I had to go take a minute to try to figure out what the heck was going on. There are all these cases being brought by organizations on behalf of some immigrants, I was like, “Is there some theory here?”
Will: Yeah. So, the district court litigation is now, I believe, W.M.M. v. Trump. I think they also changed Mr. AARP's synonym to just ARP, the first A.
Dan: Yeah. Why are these immigration cases being brought pseudonymously or anonymously? Is that some norm or is that something unusual about? Because the government knows who these folks are, so why is their identity being concealed?
Will: I don't know, actually. And of course, Abrego Garcia was not pseudonymous. So, I don't know exactly.
Dan: Okay. Somebody listening knows. So, first person to email us with the answer, “Will, if you so desire, get credit if we remember to do that next time.”
Will: First person or best person?
Dan: [chuckles] All our listeners are the best.
Will: Okay.
Dan: Who are you thinking of? You're thinking if we get some super fancy person?
Will: Yeah. Sometimes we get emails from somebody who is a longtime friend of the show and then we quote them, because they were the second person.
Dan: Maybe I'll still give credit to the other person. We'll see.
Will: All right. So, what happened here?
Dan: Well, basically, the government, it appears, has been moving a bunch of immigration detainees to this particular location in Texas. And it is believed that it was doing that. These are a bunch of Venezuelans who are accused of being part of Tren de Aragua, TDA, this criminal/terrorist organization. It is believed they were doing this to rush them out of the country on planes and send them to the notorious hellhole prison in El Salvador, as they've done with some other people.
Will: Right. And this is subsequent to the other Supreme Court order we've already had in J.G.G., another pseudonym, v. Trump, where we originally had this class action in front of James Boasberg, who said, “Don't remove them from the country. And if you have, turn those planes around.” And the Supreme Court then said, “Well, the Alien Enemies Act does require notice. You got to give people adequate time to challenge the legality of their removal, but you should do it in habeas potentially in Texas.” And so, now we're in Texas and there are apparently a lot of habeas cases pending in Texas.
Dan: Yeah. Although most of the individuals there, I don't know the exact numbers, but are not represented by counsel, have not had an opportunity to challenge their detention or removal. The notice, as alleged by the ACLU, which is filing some, I thought, very well-done briefs in this case. Some of them, they've received notice only in English. They're not being told that they can challenge this in Court. Basically, to the extent that the government was supposed to provide notice and an opportunity to challenge, it does not seem like the government is actually doing that in any meaningful way.
Will: Yeah. As I understand, the government's position is that they have done it for the named plaintiffs in this who are represented by the ACLU. They have received notice. And it's the government's argument-- And the government says, “Look, we must have given you notice, because here you are in Court. So, you figured out how to do it.”
Dan: Yeah.
Will: And the ACLU says, “Yes, but we seek to represent the class of people who are being unlawfully removed. What about them?” The government's like, “Oh, you don't represent them. We can't tell you what's going on with them.”
Dan: Yeah. The government's refusing to provide any information about that group of people.
Will: All right. So, this results in an order issued from the Supreme Court late, I guess, Friday night, like 01:00 AM-ish Saturday. I think I was awake when this happened.
Dan: Well, I texted you… maybe you were awake. Okay, I thought I was the one who texted you about it in the morning. I texted you at 06:30 and then you texted me back at 08:30.
Will: You did text me about the morning, but I think I had already seen it. [Dan chuckles] I just didn't want to text you on--[crosstalk]
Dan: My phone goes into sleep mode. It wouldn't have bothered me.
Will: Okay. So, you read the order, and it takes a little bit of unpacking to understand why this is so extraordinary. But “There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court. See the All Writs Act. Justice Thomas and Justice Alito dissent from the Court’s order. Statement from Justice Alito to follow.”
Dan: Yeah.
Will: All right. So, just some factual things about this that are wild. So, one is, this order comes down without any response from the Solicitor General, which is very unusual.
Dan: Before there had been any chance, the response did not come in until the next day.
Will: Right. Normally, the Court waits for a response. There's just this broad statement, “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.” So, just a little more big injunctiony than sometimes you get in these one paragraph orders. The fact that the Court got this out without waiting for Justice Alito's dissent is unusual.
Dan: That's very unusual.
Will: The order is a little bit ambiguous about the status of this application. So, just procedurally, the applications go into the Circuit Justice, in this case, Justice Alito. And normally, you've got something like, the application from Justice Alito is referred to the Court and the Court grants or denies. They've not actually acted on the application. Here, they just say, “There is before the Court, an application, in order to get before the Court.”
So, at the time this order came down, the docket also did not say that the application had been referred to the Court. After they updated the docket to include this order, they also updated it to include an entry saying, “The application had referred to the Court for the order,” which might well be that happened and just like it hadn't gone on the docket yet, but there was a lot of speculation that the Justice Alito refused to refer it to the Court or was still sitting on it.
This is all happening very fast. Maybe not in refused Justice Alito not yet acted on it and the Court refuted itself. I don't think we know that happened, but we don't really know what happened.
Dan: Yeah. And just going out that late at night, that's something you usually only see in these capital cases where there's these last minute challenges to an execution.
Will: Yeah. So, my other procedural question for you, is do you think all the Justices were awake at midnight on Good Friday and agreed to this?
Dan: I think no. Not all. I think that it's possible that others indicated their votes on this and maybe it took that long to-
Will: Get it out.
Dan: -get the majority out, ensure that there were enough Justices in favor.
Will: So, somebody could have said earlier in the evening, “Yes, I agree, we should give some relief and then give the chief or the clerk their proxy about exactly what it would say”?
Dan: Yeah, that's my guess.
Will: Or, do we think they would just give their proxy to their clerks? There was a clerk who was awake, like a law clerk who said? Yeah?
Dan: Who just got to decide.
Will: Yeah. Justice Jackson joins. That can't be right.
Dan: No, I think that Justice Jackson would have already--
Will: Yeah. This is another case where the shadow docket rule that the fact that you don't dissent doesn't mean you join. It could be especially relevant, if there were two Justices they just couldn't reach. There were five Justices who agreed to do this, two who dissented and two who were asleep. They could just go ahead, right?
Dan: Yeah.
Will: Have to wait to see if Justice Barrett agrees.
Dan: I think so. I think it would be you would want to give that person an opportunity.
Will: Yeah. But if you couldn't, you might.
Dan: Yeah.
Will: Now, I'm not saying that happened. It's just procedure. The Court isn't normally doing business at midnight on a Friday. They can, and they have very good people in the clerk's office who specialize in emergency applications and who often are trying to be on top of these things as they're coming in to understand what the issues are and so on. So, they could well have been prepping for this.
Dan: Yeah.
Will: But it's an unusual thing for the Court to do, right?
Dan: Yeah. It suggests that they really thought that this was important to move with haste.
Will: Yeah. And so, one claim I've seen gets a little bit into your blog post you were talking about earlier also is like, “Do you think the Court's thinking about stuff that's going on outside the four corners of the application?”
Dan: Yeah. I certainly alluded to that and suggested that that some of that must be going on. Maybe it's not necessarily media reports, but the Court may be aware of the kind of shenanigans that are happening in the district court in Abrego Garcia, where it seems like the government is basically just refusing to comply and saying, it can't do anything.
And maybe it is stuff in the media, because the messaging from the AG and from the White House Twitter account has been outrageous. They basically said, there's no chance he's coming back. I just don't think you can square that with what the Supreme Court has instructed them to do.
Will: Well, I think if the government were interested in trying to be legally technical and still accomplish what they want in Abrego Garcia, they presumably would be trying to negotiate with a third country to get him there, so they could say, “Look, he's not in the EL Salvador anymore”?
Dan: Yeah.
Will: I don't have any reason to believe they're interested in that.
Dan: No.
Will: I'm not saying that would be a good thing, exactly. And then, there's also-- because as this case is pending-- [crosstalk]
Dan: I don't know if that's what the opinion told them to do.
Will: I think the opinion says, “They have to facilitate his release from custody in El Salvador and treat his case as it would have been treated if he'd never been removed to El Salvador.” So, if they could say, “Look, if we hadn't removed him El Salvador, we would have removed him to Malta or wherever.” [laughs] Now, we've gotten him out of custody in El Salvador, we've gotten him to wherever it should be. I don't know exactly how they would do it. Maybe it wouldn't work.
Yeah. Because I think normally in normal operations, the SG would say to the Court, “We'll get a response in the morning. I promise we're not going to take any action in the 12 hours you're waiting for response.” And the Court would say, “Oh, okay, sure. We'll wait for you.” And that's going on in some of these proceedings too. And clearly, either the government was not willing to make those representations or if they were-- [crosstalk].
Dan: Or, it did and the government didn't trust it, right?
Will: Yeah. Right. Well, and then I was going to say the other Abrego Garcia angle is, of course, once you know that if they are removed illegally, the government's position will be it's too late to do anything about it. So, your only choice as a Court, if you want to preserve the option to review these things, is to say all the deportations stop until further order of this Court.
Dan: Yeah. It's interesting that this is not an administrative stay.
Will: Well, is it not?
Dan: I don't know. It is not styled as one.
Will: No. But the application is still pending, so there is still this [chuckles] broader application. Okay. So, I guess a few more things just to add to understand the context. So, we've now got Justice Alito's separate statement that came out over the weekend.
Dan: Little bit less than 24 hours after.
Will: Yeah. In which he says, “Shortly after midnight yesterday, the Court hastily and prematurely granted unprecedented emergency relief. Who is the putative class, does this order apply to the president? What's going on?” He says, “I'm not sure the Court had jurisdiction.” He says, “Did the applicants comply with the obligation to seek relief from the district court first? What about the Court of Appeals? We didn't wait for a response from the government.” He says, “I would have trusted the government not to do anything based on some representations they made in the district court, which maybe were ambiguous.”
Dan: Yeah, I certainly don't think the government had made any representations that would give the Court confidence that they wouldn't remove at least the non-named plaintiffs in this case.
Will: Yes. And then, by the way, another Abrego Garcia wrinkle. In Abrego Garcia, the government had a representative who made representations in the district court in Abrego Garcia like, “This was a mistake. We shouldn't have done it. And I'm going to talk to people and try to fix it.” And that person's been fired.
Dan: Yeah.
Will: The government now says, “Well, how can we be held to that person's representations, because we didn't tell them all the secret stuff that we were doing.” So, you definitely-- I mean--
Dan: Yeah. Maybe, you don't feel like you can trust the lawyers.
Will: This administration has made clear that it reserves the right to fire its immigration lawyers and then retract their representations when it does so.
Dan: Yeah. So, there are real consequences to that. And in terms of the representations that had been made in the A.A.R.P. case below, the government had been very cagey, said, “We're not going to do any flights out of the country on Friday. We don't have any plan for Saturday.” But just cleared out that it was really reserving the right to fly. At least, they promised not to deport the named plaintiffs, but they were really reserving the right to put everybody else on planes. According to news reports, it really looks like they were about to do that they had folks on buses, they were going to take them-- [crosstalk]
Will: And they turned around-
Dan: Yeah, they turned around.
Will: -when the Supreme Court filings were in.
Dan: Yeah.
Will: Yeah. I just want to ask one more thing about the Alito thing. So, he has this closing that's like, “I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate. Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in Trump v. J. G. G., and this Court should follow established procedures.” How do you read the tone of this dissent? What do you read Justice Alito? Is this angry Alito?
Dan: This is mid Alito. I don't think this is super, super angry.
Will: Yeah.
Dan: It does at least have a few words for the executive branch and maybe suggests there's some reason to be concerned. I don't love it. I don't love how it basically just seems to accept take the government's word for everything. When this came out, I think only the government's opposition was in, I think that's the timeline.
Will: Yes.
Dan: And the government's opposition just makes it seem like the ACLU had acted incredibly hastily, had only given the district court 42 minutes or whatever to rule on this. But the reply brief that the ACLU subsequently filed is quite persuasive and explains the timeline in a way that makes clearer that that's just not accurate, that basically the ACLU files on Thursday and then repeatedly makes clear to the district court that this is happening.
The government is actively trying to remove all these people. The district court nonetheless didn't change the government's deadline for filing response, didn't issue any administrative stay, made clear that the government-- It was not going to rule on the matter until midday Saturday, by which point the everyone who was in the class, other than the name plaintiffs, might have been removed.
I think it was totally reasonable at that point for the ACLU to go to both the Fifth Circuit and the Supreme Court. The Supreme Court can consider things before a Circuit Court rules. And so, I just think he's wrong on the merits about that aspect of it.
Will: Me too. I guess that's part of what I think makes this come off as so relatively, I don't know. Yeah, relatively, I want to say it's a weak dissent. Not that he's doing a bad job exactly, but it's almost like he's not trying.
Dan: [crosstalk] --not in it fully?
Will: Yeah. Like his main argument is like, “Well, I would have trusted the president.” He knows that most of his readers, including the other members of the Court, do not trust the president. It just comes down to how much do we trust the president. And then, I don't know if you saw this, but on Truth Social, where the President of the United States likes to make policy.
Dan: You have an account over there?
Will: No, but he posted a truth, or whatever you call it about all this. And he says, “I'm trying to remove criminals in the country, but my team is being stymied at every turn by even the US Supreme Court, which I have such great respect for, but which seemingly doesn't want me to send violent criminals on terrorists back to Venezuela. Great Supreme Court Justice Samuel Alito correctly wants to dissolve the pause on deportations. He is right on this.”
Dan: Not exactly what he said.
Will: Well, and I'll say the whole thing sure makes it seem like had the Court not acted, he would have been deporting people to Venezuela.
Dan: Yeah.
Will: It sure makes it seem like Justice Alito was wrong to say, “Oh, don't worry. They weren't going to do it anyway.” [laughs] It seems like it's now saying, “I want to do it.”
Dan: Yeah. So, maybe that will get cited in the next round.
Will: Yeah. All right. So, yes, now we also have the government's response, we have a reply by the ACLU which I thought was extremely effective. It was a very dry reply. It just walks through the timelines. It's like, “Well, here's the first time we went to the district court and they told us they weren't going to act.” Each step of what they did that makes them seem very reasonable.
Dan: Yeah.
Wil: The Supreme Court has not acted on this at the time of our recording, which is now one, two, three, four and a half days after their first order.
Dan: Yeah.
Will: A couple days after the reply from the ACLU. Several days after the government's response. What do you think?
Dan: Well, it makes the first thing seem less like an administrative stay, right?
Will: Yeah.
Dan: It makes it seem like they're like, “Okay, [chuckles] we've ruled on this.” I don't know.
Will: I joked to somebody that I thought they might just leave this one in place for a few months.
Dan: It might be the easiest thing to do rather than have a whole new round of Alito dissent which it might provoke.
Will: Although, so, one pending issue that comes up, so one point the government makes when they get to file their reply is they say, “At a minimum, the Court should clarify or amend its order.” So, the government says, “You can't remove anybody in the putative class of detainees from the United States until further order of the court. This is a controversy about the use of the Alien Enemies Act in light of the fact that Tren de Aragua is not actually a foreign country and it's not at war with us.”
But the SG says, “Look, at a minimum, could you make clear that we could still remove them using the other real immigration law that isn't challenged.” And the ACLU in their reply has a little footnote that’s doesn't really disagree with that, because there is no real basis to disagree with that. But the court hasn't even done that. Do you think that's on purpose?
Dan: Maybe they disagree about that. Maybe they think it's just safer to leave this in place.
Will: Yeah. We've seen what you do with regular immigration law. You deport people based on your own misunderstandings of regular immigration law and then say, “Too bad, so sad.” So, no, we're just going to shut off your immigration powers for a while until we figure out what's going on.
Dan: Yeah, that might be. You just wonder, are all seven who didn't dissent on board with this, are there a couple people who just haven't voted one way or the other?
Will: Yeah. Also, do you have a view and do you think the Court has a view about the actual underlying legal issue? One legal issue a lot of people have is they say, “I'm not actually in it.”
Dan: The Alien Enemies Act legal issue?
Will: Yeah. Right.
Dan: So, sometimes you read opening brief and you're like, “Okay, that seems pretty plausible.” And then, you read the response brief on the other side and you're like, “Okay, that seems pretty plausible.” I haven't read the fully, fully, fully fleshed out version of this argument, but I certainly read the opposition brief in this case where the government lays out the CliffNotes version of its Alien Enemies Act argument, and I found it wholly unpersuasive. I found it not even in the ballpark.
Will: The Alien Enemies Act only applies to a declared war between the United States and a foreign nation or government, or an invasion or predatory incursion by a foreign nation or government. So, the theory has to be either that Tren de Aragua is a foreign nation, which it isn't, or I guess the government's other theory, is that it is actually part of Venezuela.
Dan: Yeah, that it's tied up with the regime there, that is basically like an aspect of the state in its invading us.
Will: That is to say the government's theory, is that the state of Venezuela has invaded the United States. The premise is that there has been an invasion by the government of Venezuela of the US.
Dan: Yes. That is the only way you can understand what's going on here, what their argument is. I just found that preposterous.
Will: Yeah. What percentage chance do you think there is that five Justices in the Supreme Court would agree with that proposition?
Dan: 5%.
Will: Okay.
Dan: I feel like any argument. I think this is the thing that's both fascinating and maddening about law sometimes, is that you can always make an argument. If you give the SG's office long enough in the law library, they'll come up with a brief that makes an argument. I don't think it'll be super persuasive. I find it preposterous, but I don't know. I just think on its face. I'd like to think it should be 0%. My guess is they will get one or two votes.
Will: Oh, yeah.
Dan: Don’t you think?
Will: I think they'll get one or two votes. I just don't think they'll get-- I think there might be a 5% chance now that the Court will say that it's true that we've been invaded by Venezuela. There's a 5% chance they'll say, “It's not so obviously false that once you add whatever deference the president gets.”
Dan: Oh, so we could bring back Chevron for this.
Will: Yes. Well, only for--
Dan: Only for immigration.
Will: Only for Enemy Aliens.
Dan: Only for the president on immigration.
Will: Or, something thing. National security. This statute was enacted as part of the Alien and Sedition Acts during the Quasi-War with France. But this statute, so far as I can tell, was never actually even used with France, because the thought was, we weren't actually at war with France. We only had a Quasi-War. So, we didn't ever actually use the statute until the war of 1812 and then World War II, like real wars. So, if we weren't at war with France in the 1800s, I don't see how we're at war with Venezuela in 2025.
Dan: Yeah, that history seems quite problematic for the government. One thing I learned from reading, I don't remember if it was the filings in J.G.G. [chuckles] I didn't know the Alien Enemies Act was preceded by the Alien Friends Act.
Will: [chuckles] Yeah, that was the controversial one.
Dan: Yeah. But it's actually not about friends. [Will chuckles] That one was also about enemies. It was more aggressive and just allowed the president to imprison and deport noncitizens. Like, not stuff you do to your friends.
Will: [laughs] They were not our real friends. These are international law concepts. The idea was, if you were a citizen of a country we were at war with, just as a matter of the laws of war, your ability to be here went away, but you may well personally not be our enemy.
Another section of the statute gives you time to settle your affairs. When an alien who becomes liable is an enemy, blah, blah, he shall be allowed for the recovery, disposal and removal of his goods and effects, and for his departure, the full time, which is or shall be stipulated by any treaty, etc. It's more like, “We're at war with your country. We then tell everybody, all nationals, a country, you got to get out of here. We can't have you here anymore.” The Alien Friends Act was like, “The president has discretion to decide. These individual people are bad,” which is why a lot of people thought it was unconstitutional.
Dan: Yeah. And unfriendly.
Will: To the aliens, for sure. [Dan chuckles] The idea was friendly to their country, just not to the aliens.
Dan: Okay. All right. Anything else to say about that one?
Will: No. I guess this is the question we always ask is, do you think this is what the shadow docket is going to be for the next several years?
Dan: Yeah. This is a really interesting meta question. I just would like to think it can't keep proceeding at this pace for three years and nine months. I mean, who's counting?
Will: If this is a thing, when the Trump does something crazy, the Supreme Court can, within a few days, Ex Parte, just say, “The government is directed not to do this until further order of the Court.”
Dan: Yeah.
Will: That would really, actually go a long way towards making the country function.
Dan: Yeah. Although there is this question, which is the Court has got to be aware that it's not infinitely powerful, and there could be a point where they push back on Trump enough where he just says, “Screw it. I'm not going to do what you say.” It is much more plausible that he would do that than pretty much any other president, at least, in modern history.
Will: FDR was going to do that.
Dan: Yeah. But he didn't do it. He threatened to do it.
Will: Well, he threatened to do it and then he won.
Dan: Yeah. Fair. And so, it could be a similar situation where the Court may recognize that we can't stop everything. We have to give this guy some wins. Maybe that's not the conscious thought process, but by just doing so much stuff that I think, in my view, is flagrantly illegal, the government is putting the Court in a very difficult position, where we see Congress is providing no accountability whatsoever. Not even a little bit. And so, it's really the Court standing in the way of this stuff. And the Court has limited political capital. I think from the Court's perspective, you might want to do some delaying. I think Jack Goldsmith has called this temporizing.
Will: Yeah.
Dan: The more you can just slow things down, I think is better for the Court, because frankly, Trump is getting more unpopular day by day, and his political capital may diminish over time. And so, the more you can drag this out, we're almost past the first hundred days, drag it into subsequent years, the better position I think the Court is going to be in, and the more political capital it's going to have relative to the president.
Will: Yeah. In a way, that's what the stay does is it delays the ultimate ruling on whether or not we're at war with Venezuela for a while.
Dan: Yeah.
Will: Yeah.
Dan: I've lost track. Have we talked about the oral argument order and the birthright citizenship case?
Will: I don't think we have.
Dan: Yeah, I don't think we talked about that. So, you want to explain to people what happened there?
Will: Sure.
Dan: Because you wrote a good and helpful procedure focused post on the blog. Have I mentioned the blog yet, [Will laughs] blog.dividedargument.com?
Will: Oh, yeah. That sounds cool.
Dan: Yeah. I don't know, if I haven't mentioned that, it's blog.dividedargument.com.
Will: Okay. So, early on in the Trump administration, the president issued an executive order purporting to rescind birthright citizenship for the children of some aliens. Several lower courts issued universal injunctions against this, because it's unconstitutional. The government then took applications to the Court saying, actually, not trying to defend the order on the merits.
I mean, not conceding it, but for now not defending it, but just saying, you should say that they can't issue universal relief and have to issue relief limited to the parties, the nationwide injunctions issue we've talked about repeatedly in the show, which I think was a clever move by the SG. It was probably under some pressure to appeal the cases to the Court and tried to figure out what issue they could be on the Court where they might not lose unanimously and picked that.
The Court then called for responses to petitions with a pretty long timeline. This all happened a while ago. And so, the responses finally came in early April. And the Court then, last week, issued an order just setting the applications for oral argument at a May argument session at the Court. So, there's now going to be oral arguments on these applications.
Several things are interesting about this. One is they did not grant cert on these questions. They sometimes do. And because they didn't grant cert, there's not necessarily a new round of briefing and there's also not a QP. So, we don't quite know what's going to happen at the arguments. I mean, the main topic of the applications was universal injunctions, but the briefing, of course, gets into the merits sum. That's one of the factors in the stay factor test.
So, I really just genuinely don't know when the SG shows up for argument on May, is it all going to be about whether Sam Bray is right or Mila Sohoni is right about the powers of the federal courts or at some point is somebody going to say, [chuckles] “Hey, isn't this thing totally lawless and obviously doomed,” or what?
Dan: You got to think that's going to creep in somehow.
Will: I'm sure somebody will bring it up. You could even imagine that's one of the reasons to schedule oral argument, actually, is they don't want to just let this pass without talking about the merits. But it's not really clear. They could issue an order that says, “The nationwide relief is inappropriate. But by the way, this is totally illegal and doomed.” I mean, they could.
I've seen all these standard round of panicking reports like, “The Court has granted cert on this issue and is now going to do X.” I just think we really don't know. This is, I think, another very good instance of the temporizing thing. What we know. for sure, is the Court is buying a month about what it's going to do about these applications.
Dan: Probably longer right, because they are going to take time to write an opinion.
Will: Yeah. They're buying a month before they even have to think about it, I guess, [chuckles] or even have to talk about it and then who knows?
Dan: Yeah. Although they could have set it for argument in October, I guess, if they really wanted to buy time.
Will: Well, they can always reargue it.
Dan: [chuckles] We don't have enough of those. I feel like we used to have back in the day there were a lot of re-argument orders and I feel like those are pretty rare. We had one of those in Citizens United, but--
Will: Yeah. I remember that.
Dan: I feel like they happened a lot, you look back a few decades.
Will: As the Court takes fewer and fewer cases, that's one thing you could do is just have more arguments on the cases it does have.
Dan: Yeah, just reargue. [Will chuckles] We could go back. The arguments have gotten a lot longer in the later Roberts era compared to where they were in Rehnquist and early Roberts when it was just strict timeline, like one hour. Now, they can drag on. But maybe we go back to the early days where you would have three-day arguments.
Will: You could.
Dan: You would just get up there and nobody had anything else to do. There were no computers or anything, arguments would just go on and on.
Will: Do you think people would like that?
Dan: It would make our jobs a little harder.
Will: Yeah.
Dan: I do try to listen to the oral arguments, and I do listen on fast speed. But if they were [chuckles] 16 hours long, that would be a little harder.
Will: Yeah. I don't think the Justices would like it. I don't think the lawyers would like it.
Dan: But the Justices seem to like the longer arguments.
Will: I'm not sure they do.
Dan: You think it's just the Chief doing that?
Will: No, I think there's a collective action problem. I think they would all like the arguments, the part of the arguments where other people talk to be shorter.
Dan: [laughs] But they could vote to just go back to the old system. I guess they'd have to abandon the round robin. That's the problem.
Will: You'd have to abandon the round robin, and then you'd have to accept that some people aren't going to get a word in edge-wise. Yeah, I just don't think-- [crosstalk].
Dan: Justice Thomas stops asking questions.
Will: Maybe. Yeah. No, and Rehnquist used to cut people off close to in mid-sentence, [chuckles] you know?
Dan: Yeah.
Will: One other thing about the order is it also means I think amicus briefs are a little unclear. I don't think there's a natural time to file amicus briefs, but a lot of people might want to file some, especially if they think the Court's going to want to talk about the underlying birthright citizenship issue on which there's been a ton of recent scholarship.
Dan: Yeah.
Will: The Court did this a couple years ago in the OSHA vaccine mandate cases.
Dan: Oh, yeah.
Will: I looked at the docket, and a ton of people just then started filing requests to participate in oral arguments. Well, actually, it looks like the Court did put up an order yesterday in the docket saying, “Any brief of an amicus curiae must be filed on or before Tuesday, April 29th."
Dan: Okay. That's soon.
Will: Everybody gets a week to get your amicus briefs in.
Dan: Yeah.
Will: “And any motion pertaining to the oral argument shall be filed by Tuesday, April 29,” presumably for divided argument or I don't know, you could file a motion be like-- I'd like to file a motion for you to tell us what topics.
[laughter]
Dan: Motion, move to request the QP.
Will: Well, in the district court, you might file a motion in limine, you just rule on whether or not this is on the table or not? So, we know the government can file a motion, a motion to not talk about the unconstitutionality of the executive order.
Dan: Well, we will see what happens with that.
Will: Yeah.
Dan: Another shadow docket, nonaction, which is mostly notable and amusing to me was this Yost case. Yost is the Attorney General of Ohio, Yost v. Brown. Basically, there's this litigation going on, because in Ohio, they have a citizen referendum where people can get stuff on the ballot. There's some people that have been trying to get on the ballot this measure to strip qualified immunity from law enforcement officers in suits filed, I guess, in state court. They wouldn't really have power to do this, I guess, for federal court unless I'm misunderstanding how this would work.
Will: Yeah. I think what it effectively does is create a state law cause of action for constitutional violations for which there is no defense.
Dan: Yeah.
Will: But you could potentially get it in federal court under diversity jurisdiction or something.
Dan: Yeah, maybe. Okay, maybe that's true. But it wouldn't change how 1983 works, Section 1983.
Will: Not unless Tyler Lindley is right, that we have to rethink Section 1983, but probably wouldn't change it.
Dan: Yeah. This is off topic, but I guess you could pass a law saying like, “All employees of the state have to agree to waive qualified immunity in federal court.” Maybe you could do that.
Will: Yeah. Or, as a condition of identification, you have to agree to waive.
Dan: That's interesting. And so, this group of people have been trying to get this on the ballot for [chuckles] quite a long time.
Will: Why is that so hard, Dan?
Dan: Well, they have this law in Ohio that they're-- These petitions-- So, you have to get a petition to be able to do a petition. I guess you have to get an initial round of signatures, and then it has to get approved and then you can go get the full amount of signatures to get sung on the ballot. But to do that, you have to have this explanatory statement in the front that says what it's about.
Will: Yeah.
Dan: And it seems like maybe the Attorney General of Ohio is not enthusiastic about this measure. And so, they keep going to him and he's like, “Actually, I don't like this part of it. Can you rephrase this?” They come back and he's like, “No, actually, that.” He keeps coming up with new objections. And so, they end up in federal court and saying, “This is actually a First Amendment violation.”
This has been enjoined. It's worked its way up to the Supreme Court. AG Yost is trying to get a stay of the injunction. This was denied, causing your former co-blogger former, because now you're on our blog, blog.dividedargument.com, Josh Blackman to have a complete meltdown on the old blog. He says, he's really mad that the court denied relief here and granted relief in A. A. R. P. Abrego Garcia says, “Are these cases related not related? But they speak to the current court's priorities.”
The Justices have decided they will move heaven and earth to make sure that alleged gang members who are almost certainly subject to removal cannot be removed. Meanwhile, they shrug when lower courts interfere with the democratic processes of a state. Okay. Is that what's going on here? Is it that the Court just likes gang members?
Will: [chuckles] I thought there were some legal issues in those cases where the government had either conceded illegality or done something facially implausible.
Dan: That's what I thought.
Will: ButI guess there really are two ways to judge the Supreme Court’s output, and one is to apply legal principles to it and see whether it's meeting those legal principles. And the other is to ask which team is winning and losing.
Dan: Yeah. There are two options, two paths. Okay. I don't have a lot else to say about that one, but I thought it was interesting and I hadn't been tracking it.
Will: Yeah, it was interesting. The stay application did pick up three votes. Justice Thomas, Justice Alito and Justice Kavanaugh would grant the application, but not four.
Dan: Not enough. Not enough. Okay. So, you had wanted to talk about one of the merits opinions?
Will: So, there have been, I think, a couple of merit's opinions since we last recorded. The one I tried to get you to record a 14-minute unscheduled episode about was Cunningham v. Cornell University, an ERISA case.
Dan: Yeah. And I did read this one.
Will: You did?
Dan: I did. Yeah, I did.
Will: Wow. [chuckles] I thought you were-- [crosstalk]
Dan: It's not very long.
Will: [laughs] No. So, for listeners who don't know, ERISA is the Employee Retirement Income Security Act of 1974, which is an incredibly complicated and very important federal statutory framework that governs retirement plans. And it is not the most scintillating area of law in many people's eyes. Is that fair to say?
Dan: Yeah. Although if you became an expert in it, I think you would have a very successful legal career.
Will: Yeah. John Langbein, the Yale Law professor and famous legal historian.
Dan: Love that guy. Yeah, he's just a brilliant scholar.
Will: He's also a leading ERISA scholar. Like, his other major area of law is ERISA.
Dan: Well, it's trust law generally, right?
Will: Yeah.
Dan: He's a trust and estates guy. And ERISA draws a huge amount from trusts and estates. From trusts, rather not estates.
Will: Yeah. I just like that he's a legal historian and he's found a real hook. I think he has testified as an expert witness in quite a few of these cases too, which is probably nice work.
Dan: There'll be some good money in that?
Will: I would think so.
Dan: Is it too late for a midcareer pivot for me?
Will: To ERISA?
Dan: Yeah.
Will: So, the main reason I want to talk about it actually is a legal issue that relates to something you've talked about and maybe written about.
Dan: Okay. Good, because I was trying to figure out why you made me read this.
Will: Okay. So, I didn't make you read it to figure out, talk about the actual question presented about the rules, about contracting and making arrangements with other parties to administer your plan and whether it's in a form of defense or in the pleadings.
Dan: Yeah, which is basically like, do you have to put it in the complaint? Basically, there's this rule and then there's an exception to it. And does the plaintiff have to put in the complaint that it doesn't fall within the exception or does the defendant employer have to say in their response, in their answer, their motion to dismiss? No, actually, we are within the exception.
Will: Right. But what I thought was very interesting was an issue that arises in two footnotes. One in the majority opinion and one in the separate opinion of Justice Alito about how to interpret ERISA. So, the majority drops a footnote, footnote four that says, “In some circumstances, principles from the common law of trusts can help inform the court's interpretation of ERISA.” Various citations, and they talk about how those principles would support their conclusion here. They say, “Our opinion does not rest on the common law of trusts, but here's how it helps us get there and so on.”
And then, Justice Alito, in his concurrence, also drops a footnote on the same issue, saying, “The decision does not rely on the common law of trusts. As the Court points out, ERISA departs in important ways in that body of case law. ERISA plans like Cornell's are vastly different from garden variety common law trusts. And in my judgment, reliance here on the common law of trusts would be unhelpful and indeed misleading.”
This is actually a recurring issue in ERISA is how much to read ERISA against these backdrop common law rules on a whole range of things. On the one hand, Court sometimes do it, because you need a rule and these principles make sense to them. On the other hand, ERISA is a statute that was designed to reform [chuckles] and systematize trust law.
And this reminded me of the debates we have in criminal law about to what extent should the model penal code, the common law of crimes, these nontextual principles be read into various criminal statutes, like, what is the Court doing when it comes to the statute and then says, “Oh, but according to the model penal code, this or according to common law, this.”
Dan: Yeah, that's interesting. I feel like it doesn't have the model penal code problem, because there the courts are sometimes reading in this proposed law reform that postdates the relevant statutory enactment, which strikes me as completely illegitimate. Here, it's plausible that Congress was drawing on the common law of trust and maybe tweaking it in certain clear ways, but that was the overall background, in the same way that if you're interpreting.
We go back to criminal law, there's clearly some statutory terms in federal criminal law that are meant to incorporate the common law background. Like, the federal statute governing murder committed in federal enclaves is drawing on the traditional definition of common law definition of murder. You can't get that out of the statute. So that is interesting, okay?
Will: With criminal law, we do this also with not just terms in the statute, but defenses. There are common law defenses that aren't always in the statute that we then say can do anyway?
Dan: Yeah, that's certainly true and that also creates this question of legitimacy. It's something I've been thinking about and hopefully going to be writing about in the coming months. But we will see.
Will: And do you feel like in criminal law, we've worked out when to do that and when not to do that?
Dan: No.
Will: Okay.
Dan: Maybe they think they've worked it out. Yeah, I don't think that there's a good operating theory of when and how to do that, at least at the level of federal criminal law at the Supreme Court, things may be more loosey goosey in state courts.
Will: Yeah. I think it's fair to say ERISA is in a similar situation.
Dan: Okay. So, maybe you're selling me on becoming an ERISA scholar.
Will: I will say I had to work on an ERISA case during clerkship where it was not necessarily my first draft pick of the cases in that sitting. So, I dreaded it and then I discovered, “No, ERISA is just a statute.” You can do statutory interpretation. You can do ERISA. It's got a lot of provisions. It's got some common law rules. You got to think about all those standard interpretive moves. So, ERISA is underrated, I think.
Dan: Okay. Well, I'm going to keep checking, reloading your faculty profile every month or so to see if you've added ERISA to your list of expertise, now that you tell me that you do that with some frequency.
Will: [chuckles] We can coauthor. We can go into something together.
Dan: Yeah. We could write the new ERISA treatise.
Will: [laughs] Charles Black and Grant Gilmore decided to just write an admiralty treatise for fun. [chuckles]
Dan: Yeah. We've extended the brand to blogs, what if we have Divided Argument treatises?
Will: Uh-huh? That's interesting. And ours wouldn't just be a Supreme Court practice treatise.
Dan: I think that one is pretty thoroughly covered.
Will: Yeah. Okay. Yeah, maybe an ERISA treatise.
Dan: Okay. There's another opinion that I'd really only prefer to just acknowledge the existence of Monsalvo Velázquez v. Bondi, which is a 5-4 immigration case. You texted me and you were like, “Hey, there's a 5-4 immigration merits case.” My heart started pounding. But it turns out it was just a case. That was argued in November. I listened to the argument some months ago, which basically is just about how to calculate days when someone is given a 60-day voluntary departure period. It's like, does that expire on Saturday or do you get toll it to the next business day? It turns out it's the next business day.
My reaction to this is, do we have to have briefing-- Could someone just say like, “Fine. Just fine, just give them till Monday.” Does it matter? It matters to this person, but could we just come around and just figure out a simpler way to deal with this without making everybody go through the motions and nine Justices and write an opinion, everything. Well, I am basically out of time.
Will: All right. You don't even get to the next business day.
Dan: All right. You want to close this out?
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please remember to go and check out the new blog, blog.dividedargument.com. I'd also note we haven't been getting a lot of reviews of the show lately in the iTunes store otherwise. So, use some of those.
Dan: Website, dividedargument.com, we have transcripts of the episodes. store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com. And leave us a voicemail 314-649-3790. And if there's a long delay between this and our next episode, it will be because the Supreme Court has ordered us to not podcast until further order of the Court.
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