The New Cover on Alito's TPS Reports Is for Racism

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:09 Thomas: Hello and welcome to Building Arguments. This is Vapid Response 36. It's Wednesday. I'm Thomas. That over there is real life attorney Matt Cameron. How you doing, Matt?

0:00:17 Matt: Hey, Thomas, it's the last day of Supreme Court season. So I am, I don't know what I am. I'm feeling it.

0:00:22 Thomas: So not good. Yeah.

0:00:23 Matt: Not great. No, it is never the best time of year. I used to love Supreme Court Season, but different times.

0:00:23 Thomas: Yeah, they had a bunch of bad rulings and then they did one ruling where they're like by five to four, the constitution is still constitutional in this one part. And we're like, that's awesome.

0:00:35 Matt: Great work, guys. Yeah.

0:00:37 Thomas: Wow.

0:00:38 Matt: Gold star.

0:00:38 Thomas: So I don't know why you aren't more grateful, Matt.

0:00:40 Lydia: The system works.

0:00:41 Thomas: Yeah.

0:00:43 Matt: Yeah, we will talk about that on Friday, among other things. We have had so many cases to cover, but we've got a big one today I really wanted to go deep on.

0:00:47 Lydia: Pretty

0:00:50 Thomas: All right. And how's it going?

0:00:52 Lydia: Good.

0:00:52 Thomas: Lydia has

0:00:54 Lydia: I'm kind of happy to be here. I know we're gonna be talking about some crappy stuff, but, you

0:00:57 Thomas: Nothing to do with the content. She's just like, man, I'm hanging out with us, Matt boy.

0:00:59 Lydia: Know, but yeah, no, I'm with you, Matt. Like this is something that I think like historically, like you'd be kind of excited about, like, you know, the surge of opinions kind of coming up to close out the Supreme Court season.

0:01:12 Thomas: When?

0:01:12 Lydia: But I don't know. Like there's interesting stuff.

0:01:14 Thomas: In the Warren court? Yeah. Matt's not that old, okay?

0:01:19 Lydia: I don'T know. He's older than me. That's all I know. Shots fired.

0:01:21 Thomas: Whoa. Holy moly. Well, Lydia's here. Lydia's the wild card here causing problems.

0:01:28 Lydia: I am.

0:01:29 Thomas: Matt, which case are we going to go deep on? Give people a preview.

0:01:31 Matt: Well, today we're going to be looking at Mullen v. Doe, which is the case which has ended judicial reviewability of temporary protected status. And this is a really big deal. This is a big deal to start with for 1.3 million people who are at danger of losing their status, many of whom are basically going to be out of status as of now and subject to deportation, many of them Haitians and many of them Syrians from places that they're not ready to go back to. So we'll talk a little bit about that, but I really want to get into, this is an Alito decision that dropped on a morning of very bad Alito decisions. He had quite a Thursday. So I really, excuse me, he had quite a Tuesday. I can't even control which day it is myself. But this, that's

0:02:11 Thomas: Supreme Court actually ruled Tuesday is Thursday. It was five to four. So yeah, exactly.

0:02:15 Matt: What am I am I going to do? It's not reviewable. But

0:02:18 Thomas: We can't, nothing we can do. I don't know.

0:02:19 Matt: I want to go deep on this one because you do not have to be a lawyer to really understand how bad this is and what the consequences are and why Alito is so full of shit on this in particular. It's couched in a lot of administrative violence. There's a lot of fancy language and tests and cases that are cited. But of course, as always, Kagan has the clarity in her dissent, which we'll read a little bit of. And then I want a touch on the Clarence Thomas concurrence, which even for Clarence Thomas is way out there. It is pretty nuts. So we're going to talk a little bit about that as well. So we got plenty here, but I think this one's worth going deep on because this decision to me of anything else that has come out in this term and maybe anything else in Alito's career shows us what he's willing to do to cover for racism.

0:03:05 Thomas: I guess my question is, is Alito finally happy though? You think he's finally, is he finally happy? Yeah, I just, they're just so upset. They get madder and madder, these, these crotchety Alito and Thomas. And hey, we should touch on the book club thing. Cause that was really cool. If you want more insight into Alito.

0:03:17 Lydia: Super

0:03:22 Matt: That was a good time. Yeah,

0:03:25 Thomas: Why don't you tell everybody about that?

0:03:25 Lydia: Fun and

0:03:28 Matt: We had a great time. Peter Kanellis came came back. We talked, of course, last Monday about his book, Revenge for the 60s, which is both about Alito and the conservative legal movement that kind of birthed him and he came up in. Great questions for Peter. We had a really good time with the patrons after Peter left, just hanging out and talking about the book. And yeah, this is such a good thing to do. I think we had about 30 people show up. Very exciting.

0:03:48 Thomas: That's awesome.

0:03:49 Matt: Ready for next time?

0:03:49 Thomas: This is an OA book club where you get to hang out with the author.

0:03:52 Matt: Yeah, as much as we can.

0:03:53 Lydia: As much as we can yeah um

0:03:55 Matt: We're going to do a couple of dead authors. We can't really get them back.

0:03:57 Thomas: I was going to say, next book we're doing is Plato's The Republic or whatever. We'll figure it out.

0:04:02 Lydia: Hey we'll see what we can do okay we're

0:04:05 Thomas: Yeah, hear

0:04:05 Lydia: Gonna figure it out um but yeah I mean like even if if you're not a patron now, because this is something that's available to patrons at all levels. You can be a $1 an episode patron and still get access to the book club and participate in these discussions. But we also have the recording up available for all patrons too. So even if you are joining late and you are curious about how the first discussion went and want to know kind of what we were all talking about, you can still access that. So available to everybody.

0:04:30 Thomas: That, nerds? All you book reading nerds. Now I'm going to do a 20-minute rant on automated voices and how they've ruined everything.

0:04:38 Lydia: Plenty of people that listen to the audio book though too. So though.

0:04:41 Thomas: Is it read by a real voice? Audiobooks are still good, but I went to, I was going to try it. They used to have more readings for like articles, like the New Yorker and all that.

0:04:42 Lydia: It is read by a real voice for that particular one. Hey,

0:04:50 Thomas: I went and downloaded their app and it's all automated voice, unless there's some I'm not seeing. Ruined my life. That's the one. I actually am not as anti-AI everywhere as everybody else is, except in this one place, I'm way more anti - AI.

0:05:02 Lydia: Media, I would do it for 20 bucks a pop. Like, reach out to me. I'll read all your articles.

0:05:04 Thomas: I know it's like, Matt, question

0:05:07 Lydia: $20 an article.

0:05:08 Thomas: As a lawyer, to a lawyer, is there a type of rights where it could be like, we just want to read your articles or hire somebody to read your articles? What are those rights? What is that?

0:05:17 Matt: That's a fun emerging question. I'm with you though. I hate it. I will not let a computer read to me. People need to do it. But yeah, I should mention the plan here is we're going to announce the book at the beginning of the month and then have book club at the end of every month. So you've got a whole month to read it. Upcoming book is going to be a book by a man named Peter O 'Neill, who is an attorney who was diagnosed with autism spectrum disorder at the the age of 65. So it's a memoir looking back. It's called My So -Called Disorder. I took a lot out of it and we're going to have Peter O 'Neill join us for the conversation at the end of the month. Yeah. And I, Hey,

0:05:45 Thomas: That's so cool. What a great book club. Good job to you too. I don't know if people get the sense of this, but this was very much a Lydia and Matt joint. I didn't help at all. So this is just, I want to give you guys your shout outs because it's really cool. One of the the coolest things going on on the internet right now so uh join up everybody and

0:05:56 Matt: I just like to read it. It'S books I was going to read anyway. And I love talking to all of you about them. So good times.

0:06:10 Thomas: The authors apparently that's that's awesome all right well on that positive note let's uh take our first break before we get to the negatives uh because this this uh decision sucked but something that's not negative gotta thank our hall of famers our all -time greats the patrons who make this happen we of course thank the hall of framers each and every time we do vapid response and we'll start start with the first third of them. Thank you too. Jason born too slow at this altitude. I can fart flat out for half an hour before my hands start shaking.

0:06:42 Lydia: What?

0:06:43 Thomas: I don't know what that is.

0:06:43 Matt: TMI, TMI.

0:06:44 Thomas: Is it a, maybe it's a quote from something. It might be a quote for me. I'm not sure. I think it's something, but, uh, nobbling the jury helps me get off all time. Great right there. Instant classic Rebecca, Eliza. My house is a mess, but I read a lot of books and that's somebody who should be in the book club? Probably is. Griff, the Tired 1L, Matthew Cutler, autistic Twitch streamer, twitch.tv/MTC_streams. Gary the Seagull, still going strong. Did Gary come to book club? I meant to ask after, to inquire after Gary the seagull.

0:06:44 Lydia: Maybe for another show.

0:06:45 Matt: Still my, one of my favorites.

0:06:55 Lydia: Yep. I don't think so. I didn't hear him.

0:07:13 Matt: There were some vocal seagulls behind me on Sunday, so he might've have been there

0:07:16 Thomas: I think Matt has to go out with the book and like a sandwich on the book and then get, trick the seagles into reading. You know, that'll be, that's how we get them involved. Vetinari for America 2028 - One Man, One Vote. UnreMerkable. Amina. I want Amina to add some A's. I love it. Aminah. I don't know how long I'm supposed to do it. Donna Treadway, Mother of Heritance.

0:07:36 Lydia: We'll get feedback.

0:07:38 Thomas: Yeah, she can let us know. Mike Lapinsky, UFO Tofu. That's such a stupid, good, simple palindrome. I Love It.

0:07:45 Lydia: Love that so much. Oh.

0:07:49 Thomas: Cyanitis.

0:07:49 Lydia: Oh, that's good.

0:07:50 Thomas: International Jeff. International Jeff IJ. That is a dear old dad's reference. It is a good one. Oh, man, that was funny.

0:07:54 Lydia: Freaking international, Jeff. I just sent that to you as a message yesterday. Day there's

0:08:00 Thomas: I'm so glad you did. International Jeff, great preponderance of the evidence, last train to Skanksville. I love that one too. I took the bar exam and I'm not giving it back. Yeah, that's a good one. Apprentice of Adventure and probably a real person. Ah, that Was fun. That's put me in a great mood. And we have two more thirds to help us through this awful time. So let's take our first break and then we'll dig into Alito being the worst, right, right Matt, why are we looking at this? Oh Oh, man. I wish I was better at insult comedy, but I'm not mean enough.

0:08:08 Lydia: So many good ones you guys No.

0:08:36 Thomas: He looks like a toe.

0:08:37 Lydia: It's a Nosferatu, right? Like he's always looked like that.

0:08:39 Thomas: Nosferatu. Nosfera -toe.

0:08:42 Lydia: Okay, that's not bad.

0:08:43 Thomas: This is a this is a good place to pause because this is how I imagine his like default existence. It's just like, yeah, that's just normal face. Why are we looking at Stephen Miller the worst? What

0:08:49 Lydia: Very punchable. Yeah.

0:08:54 Matt: Because this is our amused douche and there are very few douches on earth who can compare with Stephen Miller of course the all -around eminence grease behind everything that we don't like about the Trump administration. One man has never had so much power over so many different kinds of policy. Did you see the other day it actually came out that he was responsible for that disability memo that Jenessa and I talked about way back. I mean, just like not even immigration related, just about being able to, well, we can get another time, but it was the thing about the long -term care for disability and basically creating more homeless people. So, or putting them in camps, you know, whatever works. So Stephen Miller, of course, has some things to say about this decision we're going to read. I just want to give you a little taste.

0:09:15 Lydia: I didn't see that. Man.

0:09:15 Thomas: Was it yeah

0:09:35 Matt: The, yeah, I had mentioned Stephen Miller.

0:09:34 Lydia: Matt's being arrested right now for speaking out.

0:09:36 Thomas: Well while we're waiting for sirens steven miller being the amuse douche is like, you know, when the beginning of Chernobyl where they all have the meters that only go up to a certain douche meter they're all like yeah this is uh what is it like 3 .7 or something whatever not terrible not great that's That's how you get this guy on the amuse -douche. Because otherwise, he's off the douche charts.

0:09:59 Thomas: But our meters are broken. So he's on.

0:10:00 Matt: Nothing yet built can measure yes that's true well so this is him talking about the tps decision why it was necessary it just gives you a little flavor of the administration's take on this it's going to be relevant because the main challenge one of the main challenges to the tbs termination as we'll discuss was because trump was being openly racist so let's uh let's see what we have to say here from stephen miller and fox news Not

0:10:20 Thomas: Here we go.

0:10:21 Clip: Haitian illegals and was frozen by courts. The Biden administration came in, they flew Haitians right over the border by airplane, dumped them into American towns all over the country, particularly in Springfield, Ohio, destroying these tight-knit communities and gave them all again this TPS, temporary protected status, which gives them unfettered access to welfare and other benefits in the United States. Trump ended that benefit again again here in the second term, even though the statute says that it is judicially unreviewable, meaning Congress said the courts can't review it. A rogue radical judges stymied that for the last 16 months. And again, now here we are because of the Supreme Court, and we can finally remove these Haitian illegal migrants from the United States. It is a momentous victory, albeit this should have never taken 10 years. It's outrageous that we have judges in this country who continue to supplant their own radical beliefs for the democratic views and judgments of hardworking American citizens. Just when you're getting warmed up, I was starting to laugh about the definition of temporary. Ten years, that's the definition of temporary do these. Stephen, we're all waiting.

0:11:30 Matt: That's enough. That's enough

0:11:31 Thomas: Does anyone know if French Stewart's still alive? He should be doing. Remember that character on Third Rock from The Sun? That's this.

0:11:38 Matt: He does look like Yeah,

0:11:39 Thomas: That's that. That's what he's doing. All right. I'm going to find that while you talk.

0:11:44 Matt: So there's a little setup here, obviously The idea that it's taken 10 years Because Trump did, of course, try to terminate Just to remind everybody in the first term This is a good reason to go back on this In 2017, they did try to terminate GPS benefits And a court, as they did several times now below Found that the way they did it was super racist Like, openly racist Because Trump just couldn't shut his mouth Every member of the administration couldn't Shut their mouth That's about why they didn't like certain kinds of people and liked other kinds of people. And of course, we all remember the shithole countries comment, which Trump later owned after denying it.

0:12:14 Matt: That was made about Haitians. That was meant specifically about Haiti and TPS. And he, of course has said far, far worse things since then, as we're going to talk about. So I just want to make sure that we got that. Keep that in mind. We're going get a little more into what Trump said and what the administration said when they terminated. TPS actually is. Now, he's saying it's temporary, but there's nothing in the statute that says that it has to last for any period of time or not last for any period time.

0:12:40 Matt: TPS is created, it is set up by Congress so that the executive can designate certain countries at certain times in response to certain events. And obviously, Haiti had a horrific earthquake in 2010. TPS went into effect shortly thereafter and has been in place, has been redesignated several times since then. And that means that anybody who continues to go to a background check every 18 months can have a work permit, can be here legally.

0:13:02 Thomas: Matt I'm an idiot and I think it should only last as long as the earthquake was going like actively going it should have this temporary so it should just be during the earthquake and then it's back yeah

0:13:07 Matt: That's right. Yeah. And the cholera epidemic that the UN accidentally started, they can deal with that themselves. That's fine. That was another reason it was actually re -upped. So yeah, the Syrian TPS is also here. So the Doe is actually Leila Doe, who is an anonymous Syrian person who we know does behavioral health work and is taking care of a US citizen mother. The Haitian petitioner here is named Miat and is actually doing Alzheimer's research with his temporary protected status. He's working legally and doing that. So, the lower courts in both cases made pretty extensive findings about why they were not inclined to terminate TPS or allow the administration to do it. And there are a couple of different things, issues I want to flag before we get into this. So as Miller mentioned, the statute claims to say that you can't review, no court can review a determination of temporary status termination or creation. Now, what is a determination is going to be a pretty serious question for the wonderful textualists and the a conservative block of the Supreme Court. They have a very different opinion about what a determination is for the purpose of this than they would for other things. And in fact, this is going directly against related precedent, as we'll talk about. So there's the question of, did they properly terminate it? And can we review that at all? Because the statute does say that determinations of any, basically determinations involving TPS can't be reviewed, but that can't mean that you can't review how they got there. That's the issue I want to flake right now. So if how they got there was they just started looking at people's pictures and were like, hot or not, right? If they just played hot or non with applicants, right? Just swiping

0:14:51 Matt: Left and right on TPS applicants, that would clearly be a problem under the Administrative Procedures Act. If they started flipping coins, if they made people fight to the death, like these are things we just can't allow people to do. You can't say it's completely unreviewable how you got there, plus the statute and regs do have specific ways that they have to go through a series of steps to consult with different agencies before they terminate TPS. And that's why I want to talk about very quickly some emails that the New York Times published. These actually came out on the record just before June 16th, just about 10 days before this decision came down. So let's pull up some of those emails. I just want to show you a couple of things in here because they're very damning if you understand how the TPS process is supposed to work. And remember, this is a program that is supposed to protect people based on the state of their countries and how it's doing. And if the thing thing that originally required the TPS is gone if it's doing better. Syria, I can see a little bit more. I don't know exactly how things are in Syria right now, but certainly the state of war that was in at the time when TPS was declared is not the same. But Haiti is much worse off than it ever was. It actually just came out that Marines had to get into a firefight a number of times in front of the US embassy to protect it last year. We just found that out. Gangs

0:16:03 Thomas: Emails

0:16:03 Matt: Are are running 90%. These emails, yeah.

0:16:04 Thomas: Sorry so

0:16:05 Lydia: Would also think that this stuff also gets exacerbated in other countries when we get rid rid of USAID, right? When we get rid of these other programs where the United States is trying to make these countries a little more stable in various ways and support their citizens in various ways, that can only lead to more people needing this.

0:16:23 Matt: Does not help. So, yeah, no, this is actually, so this was submitted by the petitioners once they came out. These were originally subject to protective order, but now they're public. Now, these are fascinating.

0:16:26 Thomas: This is from the actual so you're saying this was in the decision or whatever or in the sorry in the yeah okay okay all

0:16:37 Matt: These are internal emails from last June in which the people who are supposed to be making this decision, now USCIS, as I've said before, are generally run by non -ideologues, generally runby people are just trying to follow the law and do it as written, and they know what the law is supposed to be. They know it better than anybody. So check out on page four,

0:16:54 Lydia: Redacted thank you for your review and clearance regarding your question I can share that s1 recently elected to terminate haiti without country conditions from dos if we need more details on s1's potential options for this vz decision I'm happy to help and will connect with had for more information

0:17:11 Thomas: All right what does any of that mean so

0:17:12 Matt: So S1 presumably is the Secretary for Homeland Security, which Christy Noem at the time, and Department of State is DOS. So what they're supposed to do is in consultation with DOS, they're suppose to decide if Haiti is in a place where it's safe to return people to, whether that can sustain the number of deportations that would happen. It's supposed to be a pretty sophisticated analysis. And in the past, you've gotten pretty long memos out of this. We know from previous attempts to terminate, they spent maybe 30 or 45 minutes sometimes on this before coming back and saying no. Now, they haven't even said no. So this is huge that we know for sure they knew that they're specifically moving forward without getting the country conditions from Department of State, without any of that analysis.

0:17:35 Lydia: Hi

0:17:52 Matt: Top of foray because they don't know what to do at this point.

0:17:57 Lydia: Blank I have no edits for the recommendation letter but I do have a procedural question since the statute requires S -1 to consult with other federal agencies, traditionally DOS, and we have not received a recommendation from them. Can S -2 choose anything other than an auto extension? Oh, basically saying like, can Kristi Noem just kind of do whatever she wants?

0:18:14 Matt: Are we going to follow the law or what here? Because if we're going to the law, all we can do is an auto-extension because we have not yet gotten the consultation that we need out of this. Very important.

0:18:27 Thomas: It's also a sense of like when these assholes try to rewrite history to be like this is obviously how it works and then you see in the documents it's like well no everyone who does this for a career is like hey you definitely can't do this this is not how it works like isn't that a tell these aren't these aren't like aoc's employees you know this is like the career people who are probably even like trump people right that are like hey doesn't work this way uh

0:18:41 Matt: That's right. That some of them. Yeah. And sure, there is some deep state here potentially, but they're people who know the law. That how it works. And I really wanted to show you this part because it really brings out how absurd it is that Delito is finding that there's no judicial review whatsoever of these decisions because they're just openly saying they're doing it wrong. Everybody knows they're going it wrong, check out 26A. If you go down to the 26A email, this is the recommendation, just check out after recommendation, you just read that part.

0:19:15 Lydia: Yeah. Okay. So this is a draft memo. U .S. Citizenship and Immigration Services is presenting a recommendation of no decision automatic extension for temporary protected status for Haiti based on a review of current conditions in Haiti.

0:19:30 Matt: And then if you go down, I'll just read this part, but at the bottom of purpose, this recommendation is being made in light of recent escalation of violence, the rapidly evolving nature of the security environment makes it premature to commit to any permanent policy decision at this time. And that is the best that they can do because they They, clearly the people in USCIS do not want to terminate it. They want to extend it, but they're saying at least for now, let's keep it open. Let's limp it along. Check out 27A. An admission here. As of May 27th, 2025, DOS has not provided an assessment of conditions nor a recommendation to inform the consultation. This is another reason why USCIS does not believe the decision -making is ripe and the secretary should defer. And then again, at the end, it keeps going. There's so much more of this, but we could certainly just go through all of them. But I just wanted to be very clear, this is what they knew, this was how they were doing it,

0:19:50 Lydia: Looks

0:20:16 Thomas: Did we get this isn't there usually like the deliberative privilege crap and we can't usually get this kind of thing

0:20:21 Matt: This came out in Discovery because there was a very long district court litigation about all of this. And this is relevant to how they made the decision, and all of the stuff is supposed to be public record. So this is interagency communications, not inside an agency like this you can get for decision making. This is all administrative.

0:20:32 Thomas: Isn't there a deliberative privilege to the public record stuff though I thought I was just curious okay interesting all right uh

0:20:43 Matt: Okay, so I wanted to set that up. And then let's take a look and let's pull up the actual decision. I want to show you something from Kagan's dissent before we dig into Alito so that you can understand what Alito is not doing very purposely. And she calls him out pretty hard for this, which I really appreciate. We're going to have, I'm just going to read from the Kagan dissent so you can see what Alito has to ignore to get to where he's going to go. And we can see just how ridiculous this is going to be. Many people are going to get familiar with many of these statements, but seeing them all in one place is still shocking to me. So this is, again, the plaintiffs, the petitioners coming in and saying, clearly there was a racial animus. There obviously was a racist reason this was done. This has to be something the court can look at. So checking out what Kagan says at the bottom of this page, starting there.

0:21:24 Lydia: It is more than plausible. Even putting the clear error standard aside, the Haiti plaintiffs have carried their burden. The evidence they've offered includes statements by the president so repellent and racially inflected that the majority declines to put them in print.

0:21:38 Matt: So good so good what a what a thing to say yeah all

0:21:40 Lydia: That's what a call out. Wow. Indeed, one measure of the president's way of speaking about Haitians is to compare it with the majority, which is unfailingly respectful. I don't know if that footnote matters, Matt. You tell me.

0:21:52 Matt: Well yeah we'll get back to it because it's going to be it'll be in the we'll talk about how respectful that is when we get to it

0:21:53 Thomas: Let's see oh okay

0:21:54 Lydia: All right. OK. So here are some of those statements. Haitians are, quote, eating the dogs. They're eating the cats. They're eatin'. They're eating the pets of the people that live in Springfield, Ohio. And Haitians are also eating, quote, other things too that they're not supposed to be. And Haitians in the United States, quote, probably have AIDS. And Haiti is a, quote shithole country, which is, quote filthy, dirty, and disgusting. And Asian immigration is, quote like a death wish for our country. And Asians, along with some others, are, quote poisoning the blood of our country and, quote why is it we only take people from shithhole countries like, quote, Haiti and Somalia. Quote, why cannot we have some people from Norway and Sweden? The majority briefly replies that those remarks are not, quote overtly racial, but it is hard to know what that means. Haitians are black, Norwegians and Swedes, not so much. The references of filth, disease and primitiveness are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any white community. No very, quote, sensitive inquiry of the kind Arlington Heights compels is needed to see them for what they are. Judges, as we often say, are, quote, not required to exhibit a naivete from which ordinary citizens are free. The statements fairly shout in their racial undertones and overtones alike that race entered into the president's resolve to remove Haitians from this country.

0:23:22 Matt: So there you go that is as direct a compilation as you're going to find I was actually trying to find a supercut of trump saying all that but it's right in there uh and the idea

0:23:29 Thomas: Hey I don'T KNOW IF ANYONE ELSE IS AS OLD AS ME BUT DO YOU REMEMBER WHEN THE SHIT HOLE COUNTRIES WAS A SCANDAL THAT HE DENIED

0:23:38 Matt: Yeah that he had to deny right and now we're just

0:23:39 Thomas: It was like and then there was like it was like shithouse country there's something there's some other thing like no it wasn't that's stupid and then now we just have them on the clips of it now just saying these are shithole countries this is how far we've fallen in I don't know what eight years or something like that was a scandal he had to deny it they pretended he didn't say shithhole countries people came out of the meeting and were like I can't I can'T believe he said like Trump people like they were in the administration came out I mean we're like that was the most racist thing he said shithole countries and now that's just our policy is shithhole countries and it's on video proudly they say shitholes countries they're poisoning the blood of our whatever it's just this is unbelievable how far we've fallen is

0:23:43 Matt: And all the republicans had to pretend they didn't remember it. Yeah, that's right. Yeah.

0:24:21 Lydia: And then they try to have it both ways, right? Then they try to say that it's also not racist now. Like that. Oh, no, no. That's not racist. Why is that racist? What?

0:24:28 Matt: After the break, we're going to see how Samuel Alito gets there to explain why these are not overly racial statements when he says, I'd rather have people from Norway and Sweden than Haiti and Somalia, nothing racist about that. And then he's going to acknowledge your point as well, Thomas, about how the rhetoric has changed, but he still doesn't have a problem with it. So we'll come back and find out how that works.

0:24:38 Thomas: It going to be because there are some people of color in norway we'll see find out hmm yeah well first we've got to thank our second batch of patrons that's a hell of a transition matt I don't know how to incorporate this uh this racism brought to you no no that doesn't work uh

0:25:00 Matt: Bunch of people who'd never say anything like any of that.

0:25:03 Thomas: Yeah thank you to nick fish vincent laguardia gambini attorney at law a negative phenomenon bears Beats Battlestar Galactica. You got to fight for your right to ex parte. Jay Sank. Vehicular man's laughter inadvertently inducing interest in imminent improvised in -person invitations. Okay. Love it. David Souther. I see your point. Republic versus private arrogance. I dislike the deception atop private arrogance, open assets are honest at least. Okay, I hear you. That's the arrogance contest when it comes to the justices. So that's very apropos.

0:25:37 Thomas: Two Taint Todd and the federal little cock chair.

0:25:41 Thomas: Today's episode is brought to you by the letter. Cavalry, Thomas Freeman, Cajun Killa, FraudfishyHatesEverything, Chris Simpson, WorstTimelineEver, AnonymousAquila, and ET. Awesome. We finally got ET. Thank you so much, top patrons. And we'll take a quick break and then we'll be back with more racism, just like the rest of YouTube.

0:26:04 Thomas: Matt, we're going to talk about the, it was this the one, what was the one where he read, the dissent was read, and then he, like. Got, got sensitive about that, and commented on, oh

0:26:15 Matt: That was the asylum case for the first time ever. As far as anybody knows, he actually had like an impromptu response to the dissent. Because I don't think he'd actually read it, but we'll talk about that on Friday, probably. But for this case, that's not this. This was the same day, though. This was his other very bad immigration decision.

0:26:24 Thomas: Wait so that's not this oh okay gotcha oh

0:26:29 Lydia: That was a Sotomayor dissent and this is the Kagan dissent right so that we just previously did yeah

0:26:33 Matt: That was the asylum case. Yep. So just note, though, before we read on about the composition of this one, if you look at the Justice Alito Announce section, it's one of those where there's a Part 3A that two of his compatriots will not join. I'm going to talk about why that is, because Alito's playing tricks here, folks. He's playing tricks to get the result he wants. Remember that this is a shadow docket case essentially because what we're talking about is a stay.

0:26:57 Matt: We're talking about whether or not there should be a stay in place of the termination of TPS, which again is affecting hundreds of thousands of people. This is not an academic discussion about whether or not they're going to keep their work permits, about whether they're not going to be able to stay in this country without being subject to deportation, without being locked up and put in front of immigration judges. So the stay matters very much. And they're going to find that they can't find it's more likely than not that he would win on these claims, and the way they're going to do this is pretty slimy, as you might not be surprised to learn.

0:27:22 Thomas: Wait this is a shadow docket case with like a whole decision and stuff yeah

0:27:26 Matt: Yeah, it's a stay, but it's a really important stay, because it's one of those that if you don't grant the stay, then everything's over, because they can just start moving people.

0:27:31 Thomas: I hear that but shouldn't they just you know not touch it because the lower courts already did a better job evaluating wow

0:27:35 Matt: Well, it's a great question, Thomas. It's a really important question, because there's this idea of hypothetical jurisdiction, and whether maybe in one of these cases where we're not looking at the merits, if jurisdiction is in question, as it very much is here, because there's a statute that says they can't review it, and that's what's being being argued. How much should you get in the merits? And he's kind of playing games here because I believe it's Gorsuch and Barrett do not join him on the 3A part, which is about the jurisdiction issue. I don't want to go too deep on it, but he's going to do a real bait and switch here by saying that there's just enough jurisdiction to review it, but there's not actually jurisdiction at all. So not the most important part, but let's just read the first couple of paragraphs so you can get his summary of what he's doing here.

0:28:20 Lydia: See Justice Alito announced the judgment of the court and delivered the opinion of the and an opinion with respect to part 3a in which the Chief Justice Justice Thomas and Justice Kavanaugh join in these cases we consider whether respondents who challenge the termination of temporary protected status for aliens from Syria and Haiti, are entitled to orders postponing the terminations during litigation. We hold that they are not. The TPS statute plainly bars consideration of respondents' non -constitutional claims. It allows, quote, no judicial review of any determination with respect to the termination of a TPS designation.

0:28:55 Matt: So I just want to stop on that for a second. That's the statutory cite. That is what this turns on, notice what he's saying about respondents' non-constitutional claims, because there is a difference here between the statute saying there's no judicial review of any determination, and then the inherent idea there is due process in any given thing the government does. So there's a constitutional claim to, you know, that you made a completely arbitrary decision, you played hot or not with my application, or that you might have an Administrative Procedures Act claim, which is also being raised here, to say that you did not follow any of the instructions for how you're supposed to do this, which we already know from the emails that they didn't.

0:29:25 Matt: So I just want to point out that there's the question of what does it mean for a determination under the statute? Can it be reviewed? And then also, how much is there a constitutional claim? That's a very important thing going into this.

0:29:38 Lydia: The term determination can be used to describe either an individual decision or the whole process leading to a final decision, and under either understanding of the term, 1254a-b-5a squarely bars all of respondents' non -constitutional claims. The sole constitutional claim before us will likely fail. Citing statements made by President Trump and former Secretary of Homeland Security Kristi Noem, one set of respondents advances an equal protection claim that Haiti's TPS designation was terminated because of the racial makeup of that country's population.

0:30:09 Lydia: But ironically, one of Respondent's other arguments undermines the equal protection claim by offering a strong, race-neutral explanation for Haiti's termination, namely that the current administration, which has terminated every TPS designation that has come up for renewal, simply opposes the TPS program, at least as it has been implemented in the past. For these reasons, the district courts erred in granting interim relief.

0:30:34 Thomas: No commonality between TPS programs and race whatsoever. I'm sure there's an equal, just random selection of races involved in TPS.

0:30:44 Matt: And I will point out, as was pointed out in our argument, if this is really true, that there is no reviewability, that does mean that in the future, a future Democratic president could just declare TPS anytime, pretty much for everybody in the country, for any country he wants to, for Any reason. And so we should do that. There's really no reason not to at this point. Okay, so let's check down. I know we're not going to go through the whole thing here. I'd want to make sure that we hit the high points. Let's think about the word. And I want to talk about the jurisdiction issue. Basically, he's saying it's well -established that we can't consider the merits without making a firm determination that we have jurisdiction, except in this one case, because what we're looking at here isn't the merits. We're looking at likelihood of success. So he kind of gets to to play at both sides and say, because we're

0:30:55 Thomas: Just do it. We should do that.

0:31:26 Matt: Looking at likelihood of success, I get to look at the merits. It's not though, unfortunately, because this is for a stay. So because it's for a stay, it is a lower kind of standard. He doesn't have to go fully on the merits, but he's going to have quite a lot to say about the merits and one of those merits is about, and so this is how he gets to, and that's the part that he

0:31:27 Thomas: It's not the same thing. Let

0:31:41 Lydia: Because he like can't help himself. He just like has to monologue basically.

0:31:45 Matt: Has to tell you. And also because they want to show us what they will do if this does come back up on the merit, which it may not because at this point, the programs to be terminated. And I mean, there'll still be people left to continue, but as we'll talk about at the end, I'm not sure this has a lot of success after remand at all. I need a lot to chance.

0:32:00 Lydia: But he's like, he's basically roadmapping. Should the opportunity present itself, here's the roadmap on how we would take this part. Yeah, okay. Okay.

0:32:06 Matt: And so he's kind of engaging in some hypothetical jurisdiction by saying, oh, so Sam, we do have a jurisdiction even though I don't think we do. And then let's look at whether or not it succeeds in the merits. So we're going to start with the idea of determination, what a determination is. And suddenly, he doesn't really understand this. I mean, he's a bit of a textualist, and Gorsuch also, of course, very famously a textalist, doesn't seem to care that much about what determination actually means in the context of their case law. Now, there is established case law in immigration specifically talks about what a determination actually is. Determination is the final outcome. And the question is whether it also includes all the things that happened before that. So now this determined textualist is going to give us a very specific determination of what the word determination means because very important. And it's going to have to conflict with the case law the Supreme Court has already had in the immigration context directly.

0:32:57 Matt: So let's find out how it gets there.

0:32:57 Thomas: Are we gonna start with the dictionary matt are we going to start with a dictionary all right wait

0:33:00 Matt: So many dictionaries.

0:33:03 Lydia: We start with the key term determination, which may mean several different things. It may be used as a synonym for decision. See the Oxford English Dictionary. A decision arrived at or promulgated. Webster's...

0:33:17 Thomas: Can we I'm so sorry can we read before that I think we should because we don't even know what the context is and I think the previous paragraph tells us what we're looking at right because it says that yeah there's no judicial review of any determination of the Secretary of Homeland Security with respect to the designation or termination or extension of a designation of a foreign state under this subsection. This text is clear and its plain meaning is very broad. So that's what we're proving out here, right?

0:33:25 Matt: I'm not sure if you want to do that.

0:33:43 Thomas: Okay.

0:33:44 Lydia: Okay. So we got that Oxford English dictionary definition.

0:33:47 Thomas: So it's a good place to start. And that's a Good Place to Start because, you know, when you're a Supreme Court justice, you want to do it how just any idiot would do it. Yeah okay so

0:33:55 Lydia: In middle school. Like you have to go back a while. Webster's third new international dictionary, the act of deciding definitely and firmly. The term may also be used to describe the chain of events leading up to a decision. See the American Heritage Dictionary, the quote, act of making or arriving at a decision, emphasis added. Random House Dictionary of the English Language, the Act of Coming to a Decision or Fixing or Settling a Purpose. Emphasis added on the coming to. Not only is it common to use the term determination in this broad sense, but other terms in the judicial review bar, particularly the phrase with phrase quote with respect to support this broad understanding. That phrase quote generally has a broadening effect, ensuring that the scope of a provision covers not only its subject, but also matters relating to that subject.

0:34:47 Matt: Yeah months

0:34:47 Thomas: Let me get this straight do I understand this right that it's like if they can't review a determination he's trying to say that determination is so broad as to mean any part of the process at all is that what it is

0:35:00 Matt: And months of things leading up to that determination when in fact, in previous litigation, the Supreme Graham Curtis specifically held in a case called McNary, which was looking at a similar kind of bar to review of adjustment applications, residency applications, that it could, in fact, review how you got to that determination, maybe just not the actual determination itself. If there's a real due process problem with it, he's going to have to dance around that. But check out the next paragraph where he explains why he thinks this is okay.

0:35:27 Lydia: Under either of these definitions, subsection 1254a-b-5a bars respondents' non -constitutional claims. Each claim concerns a discrete decision made by the secretary. For example, her decision to consult the State Department in a particular manner and her decision, a particular matter, yeah, to avoid doing it, and her decision that country conditions in Syria and Haiti justified termination of their TPS designations. Again, that she unilaterally decides with no information whatsoever. And all those steps were part of the process that led to her final decision to terminate these countries' TPS resignations. Indeed, the same result would follow if, quote, determination referred only to that final decision. In that event, all the preceding decisions would be, quote with respect to that decision. So under any dictionary definition definition of, quote, determination, the judicial review bar applies to respondents' non -constitutional claims. We recognize that, quote. When a statutory provision is reasonably susceptible to divergent interpretation, we adopt the reading that accords with the traditional and basic principle that, quote, executive determinations generally are subject to judicial review. But here, the text of the TPS judicial review Bar very clearly overcomes the general presumption in in favor of judicial review.

0:35:42 Matt: I'm sorry, the particular manner was was not consulting.

0:35:46 Thomas: My god okay

0:36:44 Matt: Yeah. So just wanted to make sure that was clear because it's not, but that you understand here.

0:36:49 Lydia: Yeah, I was like, this feels very

0:36:50 Matt: Yeah, it is. It is. And if there were any other outcome that he wanted to make sure they could review it, he'd make sure They could review It. But he's saying, you know, she could go on live TV at this point and say, yeah, no, I flipped a coin. I played hot or not. I did anything else. And he's just going to say, no. We can't review a single thing. This is purely purely political. It's all the executive. We can't touch it.

0:36:50 Lydia: Word salad -y to me.

0:37:12 Matt: And sometimes Congress decides the political process is the proper forum for remedying improper conduct, the political process. So we're going to, I guess, elect a different president. That would be great. But that is just, yeah.

0:37:26 Thomas: It's just more unitary executive bullshit right and

0:37:28 Matt: Claiming that Congress would have ample means somehow to stop it or that we could just do better from the... I really don't even understand what he's trying to say should should have happened here. It's just a joke. Why does this process exist?

0:37:37 Lydia: Sorry, like, like this is supposed to be one of the best of the Best. I mean, like it's one of nine people. I'm just reading through this. I's like, this is clear as mud. Like it's just also like beyond just a bad decision. It's also just not clearly written to understand. And I think it's it can't be right because then you would see you would more uh clearly see all the holes and stuff in this logic um so he just kind of has to muddy the waters to protect that I guess but section

0:37:43 Matt: You're right. Yeah. Yeah. Yeah, and this is, I'm going to argue to you, this is administrative violence. This is exactly the kind of thing that you read it on paper, and if you want to read it to say that it makes sense, then it's just nice, boring, bland law, but what he's saying is no court can review this. I'm not going to look at it. I don't care, but it gets really bad when we get to section five when we're talking about the racial motivation here. Because again, no matter what else as a constitutional claim, if you can say that this was motivated just by racism and under the Arlington Heights precedent, the Supreme Court case from a while back, as long as race was a motivating factor, it's an equal protection problem. If you can show that it was a motivating factor.

0:38:41 Thomas: That kind of trumps like any non reviewability uh you know okay so it's can

0:38:45 Matt: Because then you're talking constitutional. You're saying there's a constitutional violation. Right now we're going to go to what I think is the worst part which is his review of all of the statements he you heard from Kagan. Of course, he's not going to mention those statements the president made about how and why he was reaching this determination.

0:39:01 Matt: Yeah. This is actually very much like with the January 6th immunity case where they don't mention any of the stuff that Trump was being charged with. Why would you want to talk about that?

0:39:00 Thomas: Why not it's also like the prayer case where uh was it some sotomayor kagan somebody had to put a photo yeah yeah they just uh like to leave out what what doesn't work for their motivated reasoning.

0:39:11 Lydia: And so to my aura how to include Include pictures? Yeah. Yeah.

0:39:21 Matt: Yeah, so there's also, there's a debate about whether they have to defer under Trump v. Hawaii, which basically says that you have to give the president broad deference under immigration decisions. They actually don't go for that standard, which I guess they could have made this even easier if they did, but he went for the Arlington Heights standard instead, which is the one about whether it's a discriminatory purpose as a motivating factor. So let's start with in support of their claim at the bottom of this page.

0:39:47 Lydia: In support of their claim that the termination of Haiti's TPS designation was based on race, respondents cite statements made by the president and former Secretary Noem. The president's comments fall into four main categories. First, many express strong objections to the immigration that this country has experienced in recent decades and to many of the immigrants who have come here, particularly those who have come to or stayed in the United States illegally. These statements associate these immigrants with crime and other social ills.

0:40:15 Matt: Not racist.

0:40:16 Lydia: Second, some statements express great displeasure with TPS. They note, among other things, that TPS designations have often been far from temporary and that aliens who are allowed to stay in the United States under the program are not vetted like other aliens who seek admission. Third, some states say that TPs are not allowed to be used in the U .S. Some statements broadly denigrate the countries for which TPS resignations have been granted, including Haiti, portraying them as hellish places in which to live. That's... What?

0:40:41 Thomas: Fucking coward. I'm just gonna, I'm just gonna say, so some of this stuff was like, it's not great. It's, it saying like, you know, I have concerns with, uh, with TPS. Like, fuck you, man. You're just, you're just laundering disgusting racism. What a coward. Like you're going to rule the stupid fucking way you're gonna rule. Have the guts to actually put in the racism that you're saying is fine.

0:41:06 Matt: Even in a footnote. Yeah, yeah. Drop it.

0:41:08 Thomas: Fucking coward

0:41:07 Lydia: Well, and like twisting shithole countries into portraying them as hellish places in which to live. That's, well,

0:41:12 Thomas: Yeah here's some here's some uh yeah problems with uh with the with the gps uh yeah like should we go back down to what that was and we can remember basically but like the

0:41:21 Lydia: Here's another. And fourth, some statements malign Haitians who have come to the United States. Oh, like saying that they eat cats and dogs and that they're going to steal your pets and eat them. Yeah.

0:41:26 Matt: Malign. Maligne. Yeah yeah.

0:41:26 Thomas: Malign yeah I also think it's interesting to say malign haitians who have come to the united states so every every part of this is him minimizing racism because that's trying to target it to like oh no it's it's because the the specific ones who have come I'm here it's not just based on their race

0:41:43 Lydia: It's not. It's not Haitians that remain in their hellish place to live, just the ones that happen to come here.

0:41:47 Thomas: It's all hashtag not all haitians fucking cowardly racist old piece of shit fuck you oh

0:41:56 Matt: I can skip the next paragraph and go to none of the cited statements, could

0:41:59 Lydia: None of the cited statements by either the president or the secretary was overtly racial.

0:42:03 Thomas: Yeah not overtly racial oh

0:42:07 Lydia: And in substance, all expressed policy views that could rest on race -neutral justifications. I'm sorry, that's just a lie. It's just, that is literally a lie, that

0:42:11 Thomas: It could yeah that could god

0:42:12 Matt: Rest on. He literally said, we want people from Scandinavia, not people from Haiti and Somalia. How is that race neutral?

0:42:21 Thomas: Fuck you so

0:42:24 Lydia: That is insane.

0:42:24 Thomas: They're you're a liar you're just a fucking racist liar sure

0:42:28 Lydia: For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race.

0:42:35 Matt: You could. Yeah.

0:42:36 Lydia: And a person without racial bias can

0:42:36 Matt: Maybe.

0:42:36 Thomas: And all of those views would have been fueled by racist propaganda you consumed fuck

0:42:42 Lydia: Provide a harshly unfavorable description of living conditions in some of the countries with TPS designations.

0:42:49 Matt: I do it all the time. I do it for my work, but yes, no, it doesn't mean I'm a racist, but yeah, in this context, it does.

0:42:50 Thomas: You yeah yeah

0:42:56 Lydia: Do you think he would describe himself as a person without racial biases? He probably would.

0:42:59 Matt: I'm sure he would.

0:43:00 Thomas: But and and when it's not you're not describing it harshly unfavorable what is that like if you're just describing their living conditions as unfavorble wouldn't that be like you want them to come here like what I don't understand

0:43:13 Lydia: It would be from empathy, right? It would not be like, you wouldn't say a shithole country. You would say the things that they have to experience are really dark and, you know, it's not OK what's happening there.

0:43:21 Thomas: What trump is doing is not that he's making the racist claim that because they are bad in some way that's why their countries are bad that's the claim being made that's not like oh someone could describe how the countries were bad it's like saying someone could described like different crime rates and and you're what you're actually doing is you're summarizing someone taking a a legitimate view of you know how we measure crime and over police people versus someone who just said black people do more crime because they're black. Like those aren't the same statements. They're both like describing crime rates.

0:43:55 Matt: That's right. Yeah and I can accurately tell a court that 90 % of Port -au -Prince right now is being run by gangs, that the Haitian government basically doesn't exist, that it's fallen apart. There are all kinds of historical and economic reasons, including a lot of things to do with the United States, that that is true. But the way that Trump talks about it is basically these people inherently can't run a country. And that's a very different way to put it, right? So easy stuff here. It's so easy to see.

0:44:18 Thomas: So disgusting.

0:44:20 Lydia: So clearly racist. Yeah.

0:44:21 Matt: Yep. Let's keep going.

0:44:23 Thomas: Unbelievable.

0:44:23 Lydia: The criteria for TPS designations guarantee that many, if not most, designated countries have such characteristics.

0:44:29 Matt: That's an interesting point too, because TPS, we had TPS at one point from Montserrat, which is of a pretty well -off Caribbean island, because a lot of the country blew up in a volcano, right? And that was just for a couple of years, and people went back. It doesn't mean that you have a bad country. It just means something bad happened in your country, usually war or a major natural disaster. Just an interesting point.

0:44:47 Lydia: Haiti is no exception. It is a very poor country and living conditions there are unquestionably difficult. Many Americans of all races would surely find those conditions intolerable.

0:44:57 Thomas: Sorry. If I'm an idiot, is he describing a policy in which we send Americans over to live in Haiti? Is that what TPS is? What does this have to do with anything you fucking moron?

0:45:07 Matt: He's trying to show that he understands the country conditions, even though they weren't investigated.

0:45:10 Thomas: No, he's what he's doing is he's making the racist assumption that it's okay to say that these countries are like this because because of the race of the people that he's making, because what he's saying, he's doing this like weird transitional property thing where it's like, Hey, it's okay to say it's a poor country and living conditions are difficult. Why, why would that be on, on Trump's side of the debate? Like if that's really all that they're saying is that, yeah, these are bad, bad conditions there that that would be on the side of our side of like, yeah. It's bad conditions. Let's help them out. Clearly there's more going on than that. You can't just describe it as that and all kinds Many Americans of all races would surely find those conditions intolerable. Yeah, but in his mind, he's deciding, he is trying to communicate that linking that to someone's race, to it being a determining factor of why the conditions are bad, is fine. That part is fine, he isn't going to talk about that part. They are just describing bad places.

0:46:05 Matt: Well, and the next sentence is going to be the footnote that we were just seeing in Kagan's decision, where she makes the point that he's being kinder than Trump ever was to Haitians, because he is making at least a factual statement here in the next page.

0:46:17 Lydia: Poverty and deprivation are no reflection on character and there is no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country's ills I

0:46:21 Thomas: What side are you on, man? I don't understand. Stan,

0:46:30 Lydia: Think I mean I think he's trying he's probably trying to be like I would never say the things that they said that I also wouldn't put in ink but

0:46:36 Thomas: He's trying to pretend that they weren't racist. He's trying to say that these, but again, well, no, he's saying people, no he's saying it is okay to say shithole country because they're probably saying it for non -racist reasons. That's what he's doing because he says it's a very poor country and he's explaining that away because you may oppose it and you may, they have nothing to do with race. And a person without racial bias can provide a harshly unfavorable description of living conditions in some of these countries. So he's saying you can. My point is that the trick is there's a reason that Trump and others are describing these countries this way. And then he's going to say, well, no, it's not. It's not racist. He's just describing they're describing how they're bad. And furthermore, anyone could do that. Anyone could describe how they'RE bad countries. So it's totally fine. And then he's trying to, to here to try to make the like fake, you know, non, fake non -racist comment of like, and it's just all this poverty and deprivation are no reflection on character. There's no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country's ills. Then what are we doing here?

0:46:41 Lydia: But that they're They're also like not OK things to say. Right. Like I think I think he is trying to say that, like, it's also not OK to say a shithole country, but a shorthole country isn't inherently racist. I'm

0:47:47 Matt: Well, he's justifying it. So here we are.

0:47:51 Thomas: I like, that's truly, what does he think Trump, like in his theory, what is Trump saying? Like, what are these statements? They're just like what what would they have to do again if you're not making the claim that haiti is bad because of haitians what are those what what is all the shit talking on haiti what does that have to doing with getting rid of tps am I crazy yeah

0:48:12 Matt: Commentary on immigration policy, not overtly racial. Don't even worry about it.

0:48:16 Thomas: But it would be a reason to grant tps to those places if that's all it were it's just a values use neutral thing of, wow, that place is really bad. Wouldn't that be on the side of we'd better help them? The reason it's not is because he's linking it to race because he saying it's bad because those people over there are bad. And so Alito is trying to say like, yeah, but he might not like someone could be not doing that. It's like, Yeah, but then they wouldn't be on that side of the argument. You fucking idiot. God, it's so dishonest.

0:48:44 Lydia: Yeah.

0:48:44 Matt: That's right. Oh, it gets worse.

0:48:46 Lydia: Due in large part to the difficult conditions at home, many Haitians have come to this country throughout our history. And beginning with the more than 500 Haitians who fought to support American independence at the Battle of Savannah in 1779, Haitians had made many positive contributions to the United States from the very beginning. And they continue to do so today.

0:49:00 Thomas: I take it all back. Alito's so cool. He just he he's woke he recognizes the contributions of Haitians in 1779 some

0:49:08 Matt: He found a 240 -year -old example of when Haitians were good.

0:49:11 Thomas: Of his best friends were fought in the Revolutionary War why

0:49:15 Lydia: In offering the cited statements as proof that the termination of Haiti's TPS termination was motivated by race, MIAT respondents seek to capitalize on the statement's heated language.

0:49:25 Matt: Heated language.

0:49:27 Lydia: Wow.

0:49:28 Thomas: Is it heated why is it heated I don't oh

0:49:31 Lydia: Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago. Okay. And the statements cited by MIAT correspondents, especially those concerning Haiti and Haitian immigrants to this country exemplify this development.

0:49:39 Thomas: My god my

0:49:47 Matt: DJ, run that back. This whole paragraph. This is what Thomas was saying before, though, of course, is that Lake Shithole Countries was a scandal at the time. And he's saying, you know, not anymore. Nobody cares. This idea, though. That it would have scandalized the public. Now it's okay. But it exemplifies this development. It's an example of the development of things getting worse in our rhetoric. Eric.

0:49:49 Thomas: God what

0:50:05 Lydia: Of changing rhetoric, yeah.

0:50:07 Matt: No further comment.

0:50:06 Thomas: Yeah what this is amazing actually it's like a Rubik's Cube to try to figure out the idiot racist way he's doing this so So it's not racist, by the way, it's not racist. But it's discourse that even 10 years ago, you know, short time ago, everyone would have had a problem with. Why would they have had problem with it? I'm just curious like what in his mind?

0:50:16 Matt: Yeah, so

0:50:29 Lydia: Yeah.

0:50:29 Thomas: Why? Like what?

0:50:30 Lydia: If not for racism.

0:50:31 Thomas: And why is it even heated? If he's saying like you're just describing, you know anyone could describe a poor country as a place you don't want to live. Well, then why is that heated?

0:50:39 Lydia: Right.

0:50:39 Thomas: What's the heat? What's providing the heat could it be racism?

0:50:41 Lydia: Yeah. Exactly.

0:50:42 Thomas: God fuck

0:50:44 Lydia: But whatever one may think of the cited statements, they are insufficient to show that the termination of Haiti's TPS designation was based on the race of the Haitian people. Ironically, both Doe and Miat respondents identify a strong, race -neutral explanation of these official statements. The present administration's general stance on immigration and its obvious antipathy toward past administration's TPS policies. Respondents argue that the secretary made a, quote, preordained decision, because that's what the emails show, to end TPS for all countries. And they stress that she terminated the TPS designations for every country that came up for review. 13 in all.

0:50:58 Thomas: You dude.

0:51:14 Matt: 13 and all. So I want to point out that, yeah, so Trump ran on that originally, and John Kelly, his first DHS secretary, was intent on ending all TPS. They just didn't think TPS should exist. That's a political position. I completely disagree. Congress passed it for a reason. We should protect people that are living through civil war or whatever else, right? I mean, just to name an example he might be a little happier with, do you really want to send everybody from Ukraine back right now? Is that really what you you want to do. And I will note that Ukraine has not been up for review yet, just coincidentally, I guess.

0:51:48 Matt: But yeah, I haven't canceled that one yet. And again, they deserve it as much as anybody else, but should be noted.

0:51:47 Thomas: Again, that's so weird.

0:51:55 Matt: I mean, the timing hasn't been right, but I haven'T heard any statements whatsoever about ending it for Ukraine. And yeah, right.

0:52:00 Thomas: This great gotcha that he's got is like, hey, it's race neutral. He's talked about ending all TPS. Really, there's no, like, you don't think there's any racial undertone to eliminating all TPs? You don't there's anything in common that a lot of the TPS countries have? And actually, as I sit here, I have no idea how many, you bring up Ukraine as a great example. I have No idea how any other like, you know, typically white countries have TPS or don't. You know why? It's because they don't complain about those ones. So when they say end all TPS, I have no, like it could entirely be that there's plenty of like white countries that are under TPS. They're just not talking about them because it's so obviously racist.

0:52:39 Lydia: I just pulled it up. Matt, you want me to run through what the countries are just for?

0:52:40 Thomas: Fuck you.

0:52:44 Matt: They actually have a list on the the next page too but

0:52:45 Lydia: Oh, OK. I happen to pull it up. But yeah, if we want to just keep scrolling down.

0:52:48 Matt: But yeah either way yep

0:52:46 Thomas: Here we go. Oh you did the work for you. Yeah, that's so weird when you think you're owning the other side Alito with it. Ironically, it's so ironic. They provide this excuse that is race neutral and then he's gonna included our nations in.

0:53:04 Lydia: East Asia, Nepal and Burma, Central Asia, Afghanistan, the Middle East, Syria and Yemen, Africa, Somalia, Ethiopia, South Sudan and Cameroon, Central America, Nicaragua and Honduras, South America, Venezuela and the Caribbean, Haiti.

0:53:19 Thomas: Oh, here we go. Oh he's anticipated my. Oh wow. All right. He's anticipated my objection.

0:53:25 Lydia: Most would regard this as a racially diverse group of countries. Okay. But MIAT respondents see them all as, quote, non-white nations.

0:53:30 Thomas: Fuck you. Oh they're the real racist. You know who's the real racist? The one who say yeah those are obviously all non -white countries. Like pretty much. They're the Real Racists. You fucking asshole.

0:53:42 Lydia: They claim that TPS has not been terminated for any predominantly white nation, and they therefore infer that the reason for the termination of the TPS designation for Haiti was having a predominantly non -white population. Respondents' definition of a predominantly not -white nation is broad, apparently

0:53:59 Thomas: How's he he going to deal with this one, Matt? He's actually, he's actually addressed the argument somewhat there or he's stated it. So I'm curious.

0:54:06 Lydia: Encompassing major European countries. It may be that only the termination of a TPS designation for a Nordic or Germanic country would be sufficient in their judgment to show that the Secretary's unbroken record of TPS terminations was race -neutral. However, no such test case has come up during the present administration. Only one European nation, Ukraine, had a TPC designation when the President began his second term, and that country's TPCs designation has not yet come up for review. View.

0:54:29 Thomas: My God, dude. Yeah, sure.

0:54:33 Lydia: The only other European states ever designated for TPS were the war -torn provinces of Kosovo and Bosnia -Herzegovina. The great majority of countries granted TPS have ranked among the poorest nations of the world, and no European nation falls into that category.

0:54:54 Thomas: I'm on the edge of my seat trying to figure out how he's not making our argument. Like what's the part where he's going to flip it around? Here we go. Keep going.

0:55:04 Lydia: Viewing all the relevant evidence, we conclude that MIAT respondents are unlikely to prove that race was a motivating factor in the decision to terminate Haiti's TPS designation.

0:55:11 Thomas: What?

0:55:12 Lydia: It follows that they are not entitled to interim relief on their equal protection claim.

0:55:13 Thomas: Matt, are we missing a page? Do we, are we missing? Hold on. I think he didn't finish.

0:55:17 Lydia: It is so ordered.

0:55:18 Thomas: That's the end. We're just done. Sorry, I have to go back. This is the most interesting thing in the world. Most would regard that. Okay, so first he tries to make the point that like, hey, this is actually a really diverse group, but these racists are calling them all non -white, which is like, yeah, they're all, am I crazy? Is there any exception in there, really?

0:55:20 Lydia: That's it. No.

0:55:38 Thomas: No, it's pretty much all nonwhite.

0:55:38 Matt: Really afghanistan has some whiter people but

0:55:39 Thomas: So he's trying to point out that the, you know, the idiots who are trying to save temporary protective status own themselves by saying he's just against all TPS. And then he he he says like yeah and here's these countries and and they call them all non -white which they are and then the now I'm trying to figure out like how is he gonna recover this because like I feel like he's dug himself into a pretty racist hole right like so then he says the claim the tps has not been terminated for any predominantly white nation and they oh sorry they sorry they claim that tps is not been determined for any predominately white nation and they therefore infer that the reason for the termination of the TPS designation for Haiti was having a predominantly non -white population. Okay. I know you just read this. I'm still, my mind's blown. What did he do here, Matt? Did he find a way or did he just quit? Did he nope out of the argument? It may be that the only...

0:56:34 Matt: Well I mean he doesn't think they need to really get to get there because he thinks they've already covered in the jurisdiction but he's just saying equal protection doesn't apply either

0:56:40 Thomas: He's very much trying to do this argument.

0:56:42 Matt: Yeah he wants to make his point no for sure yeah

0:56:43 Thomas: Yeah. So, yep.

0:56:43 Matt: But but he thinks it's good enough that the administration and he calls it ironic that the demonstration administration has said they want to end all TPS, and because it's race -neutral to just want to end All -TPS programs, then it doesn't matter that he said terrible things about Haitians. That's the point. That's it.

0:56:57 Lydia: I think what he's resting on really is, you know, Ukraine is the only example we would have to really see this. And because it's not up for review until October 19th, 2026, then we're just not going to know until then whether or not they're actually racist

0:57:10 Thomas: I love this. He never found a way out of this argument because he's just like, apparently he kind of plays it off by like, well, they think it's just racist to hate TPS. And I guess the only thing that would convince them, which by the way, Matt, that feels like a really petty, unprofessional thing to put in a Supreme court decision. Am I wrong? This language, is this normal? Like it may be that only the termination of a TPS designation for a Nordic or Germanic country would be sufficient in their judgment to show that the secretary's unbroken record of tps determinations was race neutral isn't that weird be like the only thing that's going to satisfy these assholes is if trump ever terminated a white country's tps but

0:57:54 Matt: Yeah, it's a weird way to put it, especially because...

0:57:56 Thomas: His his way hold on his way so here's here's what's so genius about this alito's way of dealing with this argument is to say yeah but there hasn't been one so check me no that's the point there aren't any like that's why this is racist you because they're all like they're there's only one country ukraine that is like pretty much I guess you would consider like more white I guess I don't even know like technically speaking but we'll say yeah there's Only One it hasn't come up they haven't done it and he presents that as though that's like his argument but that's literally he's making the other argument this is insane and then he just ends he's just like and anyway I never thought thought of a way to finish that one so I'm out so ordered god fuck you dude

0:58:22 Matt: And it's pretty white. Yeah?

0:58:40 Lydia: On

0:58:40 Matt: Yeah. No, it is just... It's really bad. It is is just so obviously in your face. Also, the fact is that the entire section before it about the process also goes to it. The fact that you want this result so much that you're just steamrolling, that you are just completely skipping the process, which he is refusing to review. So we don't even know why they terminated it because they don't have good reasons. Check out the footnote, though. Footnote 7 is a little kicker, just to make you a little angrier. You can't miss this footnote.

0:59:02 Thomas: This is insane

0:59:06 Lydia: June 16th MIAT respondents filed a motion to dismiss the writ of certiorari as improvidently granted

0:59:12 Matt: So this is the emails. They filed this and they said, look, we got to go back. The court has to see these emails because this is bad, right? We didn't have these before.

0:59:17 Lydia: They claim that newly discovered evidence provides further support for their equal protection claim this evidence is cumulative of other evidence in the record and the motion is denied wow

0:59:28 Matt: We already knew they weren't doing the process. Says, I'm fine with that. That's what he's saying.

0:59:30 Thomas: Hey I already downplayed and minimized the racism once I don't need to do anymore

0:59:35 Matt: Right. I already wrote this weeks ago. I'm not changing it now, pretty much. Yeah. So that is sent back. Now, technically speaking, they're remanding. This has no hope on remand because they're reminding it for equal protection claims, but they're already saying, we have found that there is no racial motivation for this. So I don't know. And there are also really detailed findings from below, which as usual, they just completely discount. We'll link to the district court decision. Anybody can read it for themselves it's so good yeah no this is well now and

0:59:37 Lydia: Lazy sack of crap we

0:59:38 Thomas: Oh my god god this is what a fucking liar what a liar we

1:00:02 Lydia: Probably have to do our last uh break

1:00:03 Thomas: Have to yeah we gotta do a final break here

1:00:04 Matt: Then we got to talk about Clarence Thomas yep oh yeah it gets worse you're

1:00:08 Thomas: Well this lying racism brought to you by now we gotta thank our amazing uh Final third. These are the top of the top. Thank you to, check out Gal, oh, I always do it wrong, galenacomic .com for a cool web comic. Bob Lobba's Law Podcast. Philly Basement Bar's clean out continues, reopening coming soon. Man, what kind of a bar? This must be a massive bar. I'm really interested in, yeah.

1:00:31 Lydia: I'm curious we need to go check it out

1:00:34 Thomas: Elect Thomas Smith President, American Honkytonk Bar Association. Baltic Cate, Philip Kizer. Matt may not be a goat, but he's a foal. Footnote of all laws. Laws? I don't know.

1:00:44 Matt: Calling me a footnote I

1:00:45 Thomas: Footnote of all laws? Oh, footnoter of all laws. Sorry, I misread it.

1:00:45 Matt: Don't know a footnoter okay all

1:00:49 Thomas: Footnoter of all, all laws. Okay, I like it. Corrin Land, a string of unpronounceable characters. Malaika Chandler, ronofthedork .com, Milo Meadsong's Fighting Petty Tyrants, Big Easy Blasphemy, Chris Waltrip, Orders in the Court Before Report, Sam Donow, Fred R. Grothius, and by the way, Fred H. Grotheus is closing in on our top patrons. He's still in third now, but it's a race. I'm excited.

1:00:42 Lydia: What footnoter okay head

1:00:50 Matt: I'll take that all right uh

1:01:11 Thomas: Classic Liptard and Mitchell at the top congrats Mitchell still the and still champion those are the amazing patrons at patreon .com slash law those are the Hall of Famers at that $5 level at that five dollar level and above and we will read their names each and every time we do the vapid response here so we'll take our last break and then we'll talk about Clarence Thomas what's Matt we're gonna talk about this concurrence

1:01:10 Lydia: Wow no

1:01:35 Matt: This concurrence is even for Clarence Thomas this is pretty astonishing I have to say Clarence Thomas as you may know has a way of just taking whatever everybody else is doing and just making it weirder and bringing it back another hundred years. And that's what he wants to do here. So he's like, okay, yeah, I'm fine with all of this, but how have we considered making everything a lot worse?

1:01:52 Matt: So yeah, we'll do a quick readings from this one because it really deserves to be noticed, like what he's actually trying to do here and what this could mean for the future of these kinds of cases. See if you want to start at the beginning here.

1:02:04 Lydia: Wow all right I join the opinion of the court in full. I write separately to address two more fundamental problems with the MIAT respondent's suit. First, their equal protection claim, while meritless under the court's precedence, was also beyond the district court's jurisdiction. Second, even assuming jurisdiction, the equal protection claims fail for the additional reason that aliens have no equal protection rights against the federal government.

1:02:26 Matt: Yeah, he's saying that. He's saying it out loud.

1:02:27 Thomas: I'm sorry. Really? These people are in the country, right?

1:02:32 Lydia: Yeah.

1:02:33 Matt: They've been here here a while. They have legal status, but they have no rights.

1:02:34 Thomas: So can the federal government just be as racist as it wants against them? There's no... Let

1:02:37 Matt: That is literally his point in this concurrence, is the federal government can be as racist as it wants against non -citizens. So he's going to go on for a couple of pages. We can skip about why he agrees about the non -reviewability, that the statute is not ambiguous, that it means we can't review any piece of this. It doesn't even matter if she goes on Life's TV and says that she's doing it for the wrong reasons. And then we can come down to page 32 of the PDF. So we're talking about the equal protection claim. And this is where my mouth started to fall open at

1:03:09 Lydia: Respondent's equal protection claim also has no basis in the Constitution. The Constitution has only one equal protection clause, and it applies only to the, quote, states, not the federal government.

1:03:19 Matt: So just want to point out, this is a very old -school approach to the 14th Amendment, saying that it only applies to the states, the Equal Protection Clause. Now, it's been read into the Fifth Amendment in the case he's about to say shouldn't have existed, because it wouldn't make a lot of sense to not have equal protection apply to the federal government, obviously, that would be weaker. So let's keep going.

1:03:38 Lydia: Respondents, of course, sued the federal government. When asked at argument how the Equal Protection Clause could have anything to do with a suit against the federal government, Respondent's counsel, drawing on precedent of this court, stated that the claim, quote," arises under the Fifth Amendment's Equal Protection Guarantee," because, quote", the Fifth Amendment constrains the federal government in the same way that the Fourteenth Amendment constraines states.

1:03:58 Matt: Very simple statement of the existing law, yes.

1:04:01 Lydia: Because the Fifth Amendment has no equal protection clause, this court was wrong to read equal protection into it in Bolling v. Sharp, and even if the due process clause does prohibit some discrimination, it would not do so in a case about immigration status.

1:04:10 Thomas: Yeah. In 1954. That

1:04:16 Matt: Want to guess what bullying v -sharp was about?

1:04:19 Thomas: Sounds familiar.

1:04:20 Lydia: 1954.

1:04:20 Matt: Bolling v. Sharp was the case just before Brown, which began to find that school desegregation, still school segregation was unconstitutional under the equal protection clause. And it found that as a basic liberty interest that we have to have an equal protection cause that applies to the general government or else the whole thing doesn't make a whole lot of sens. So he's actually saying, and this is a very very Quince Thomas thing to do, that we should roll back Bowling v. Sharp, that we should never have found equal protection applies to the federal government. That is the argument he's actually making in this concurrence. One of the two arguments. Yeah, it's really bad. And then look at this other sentence which you just read. Even if the due process clause does prohibit some discrimination, you can have some as a treat, it would not do so in a case about immigration status. So we can never review discriminatory claims in immigration. That's what he's saying. So you go down a bit further. He's going to go on about that. And then take a look at the bottom of this page, the termination of Haiti's TPS designation.

1:04:46 Thomas: Moron. God. Some discrimination. Yeah, God.

1:05:12 Lydia: The termination of Haiti's TPS designation does not deprive respondents of, quote, life, liberty, or property, so they have no claim even if the words, quote, due process implicitly forbid discriminatory animus. The discretionary and limited status that a TPS designation provides, like any immigration status for aliens, is a government -created privilege, not a core private right.

1:05:33 Matt: So maybe, but when you take it away, you are going to be depriving them of life, liberty, and property, especially life right now. You're putting their lives at risk. So I just can't get there.

1:05:42 Thomas: Well, and I get that, like, in some sense, it's a government privilege or whatever. But like, Like, if you only take away privileges from, like, one race of people, isn't it a right that you have to not have that happen to you? Like, doesn't it become a constitutional right once the government's doing racism, even if the thing they're taking away isn't necessarily, like a right?

1:05:51 Matt: If you

1:06:04 Lydia: Mm.

1:06:05 Matt: Only gave driver's licenses to white people, there's no constitutional right to a driver's license, but obviously that would be be a problem. Yeah. So we can skip all the case sites there, but check out section B because this is when I stood up in my chair.

1:06:20 Lydia: I would like a recreation of that, Matt. Perhaps for these reasons, this court has never subjected even express racial classifications in immigration laws to scrutiny under the due process clause it's

1:06:30 Matt: Just think about what he's saying right there. What he's saying is the immigration system has always been racist, so we've never bothered to call it racist before. Why would we start now? He's not wrong. That's correct. But he's okay with it is the problem.

1:06:31 Thomas: What? That can't be right.

1:06:43 Lydia: Really bizarre while foreigners have long been able to claim constitutional protection from racial discrimination by states they have never been guaranteed a right to immigration status or citizenship based on equal protection principles even when these laws were openly discriminatory uh and

1:06:57 Matt: And he cites to the Chinese restriction. I mean, this is the 1882, the original sin of American immigration. He's like, look, this was fine. We used to be able to keep Chinese people from coming here.

1:07:09 Lydia: Uh and then he does he quote quote from that. In all of the naturalization acts from 1790 to 1906, the privilege of naturalization was confined to white persons, with the addition in 1870 of those of African nativity and descent, and legislation up to 1922 had not changed that restriction.

1:07:27 Matt: And that's citing Ozawa, which is a case about whether or not a Japanese man was white. They decided that he was not white, turns out, for the purpose of naturalization. But it is true that until from 1790 to 1906, it's specifically said that only white people could naturalize to citizenship. And he's saying, that's fine. That's the way Congress wrote it.

1:07:28 Lydia: I see. Congress only amended these laws to eliminate such discrimination in the middle of the 20th century, but not because the meaning of the Fifth Amendment has changed. If equal protection protection principles applied to immigration decisions, much of even our current immigration law would conflict with this court's modern equal protection doctrine. This court has interpreted the equal protection clause to bar discrimination based on, quote, country of origin, but our immigration laws have distinguished among aliens based on their national origin from the beginning.

1:08:12 Matt: Okay, I want to point Before we get to the true, just the way he's going to cap this off in the dumbest, most middle school debate way possible, he's gonna cap this up in a way that I think Ben Shapiro would be embarrassed to do in public. I'm gonna set you up for that.

1:08:24 Thomas: That's saying something.

1:08:25 Matt: But let me just point out that TPS is not about country of origin. It's not about race. It's about what happened in your country of origin, right? It's how we choose who gets TPS. And so the thing he's about to say at the end is gonna make far less sense when you realize that. But he's making a straw man here. He's saying that we're talking explicitly about how how immigration law picks and chooses countries. And again, he's right. Historically, as we've talked about many times on this program, historically, the immigration system has been racist. And historically ,the court has found, rather, things like people in other countries don't have equal protection rights. They don'thave rights to come here. They have property interests because they're in other countries. They want to be here, but they're not here. That's very different from people who are here .They've been granted lawful status. They've gone through a procedure that is governed by the Administrative Procedures Act. And they are being treated differently, clearly being treated differently based on their race and nation of origin. And when you already have established on the record evidence that he calls cumulative, evidence that he says all these emails that show that they didn't follow the process and we had a bunch of people, lawyers, in the USCIS concerned because they didn'T follow the procesS, that's not relevant. We can't look at it. It's not reviewable. But, you know, there was nothing wrong with the way this was terminated. So, I mean, it's just, you knoW, anyway, so I just want to rant

1:09:35 Matt: On that. Let's finish this up.

1:09:35 Thomas: Plus he's, I mean, it's like he's citing back to stuff that is, we all don't think is cool, or I thought, and he's almost saying like, well, back then it changed, but not because the amendments changed their text. It's like, yeah, man, it is because we changed how you interpret. The court decided like, wait a minute, let's interpret this in a way that is not super fucking racist, right?

1:09:43 Matt: Well, apparently he does. It's fine. Yeah. Because we changed.

1:10:01 Matt: Well Congress also realized that maybe we should allow non -white people to become citizens. It just took a while. I mean, and even just that parenthesis there, the parenthetical from Ozawa, just thinking about the fact that it took until 1870 to allow black people to become citizens, people of African connectivity and descent. It was just another one of these decisions where it's rubbing up against his own rights.

1:10:23 Matt: So, all right, I'll just finish it up.

1:10:27 Thomas: Where

1:10:27 Lydia: Today, right there in the middle. Today, applicants for immigration are treated differently based on their nationality as a matter of course. And respondents themselves seek a protection from deportation for people from Haiti, but not the neighboring Dominican Republic. If they are correct that the court should apply equal protection precedents to immigration decisions, then the program that they benefit from may ironically be unconstitutional.

1:10:49 Matt: What are you saying?

1:10:51 Lydia: The whole point, yeah.

1:10:51 Thomas: My god you fucking moron yeah

1:10:53 Lydia: What?

1:10:53 Matt: Reconstruct the actual argument he's just making right here. Pick this apart and think about what he's saying. He's saying, oh, these Haitians are coming in here. They don't want to be deported, but they're not sticking up for the Dominican Republic, same island. Why don't they care about that?

1:11:04 Lydia: Because it's not a TPS -designated country, right? Right.

1:11:05 Matt: And it won't be. There's no earthquake in the DR. Basically, it's not a great government, but it's a functioning government. Government. It is a completely different situation, and it is so disingenuous. He has to know better. I know he has to. But this is what I say about the Ben Shapiro thing of like, oh, you're not standing up for the DR.

1:11:19 Lydia: Like that's crazy.

1:11:23 Thomas: Protection from haiti but not the neighboring well

1:11:26 Lydia: It's just irrelevant. It'S completely irrelevant.

1:11:29 Matt: It's a straw man. It's stupid. And it completely willfully misunderstands the purpose of the entire program. It isn't just to just arbitrarily decide you want to keep some people here or not. It s because people can't go back to their countries. Nobody has ever made that argument for the DR, at least not in my lifetime. So what does it matter? What what are you talking about?

1:11:45 Lydia: And if something happened where like that would be applicable to them, I imagine people would be sticking up for people from the D.R. and saying that, yeah, they should not go back either. Like, right.

1:11:57 Matt: And I mean, the week that we're recording this, I just want to point out, there was a massive earthquake in Venezuela, which Venezuela was the original round of TPS terminations. That's already been up and down. That was a lot more complicated. But in normal circumstances, under a normal administration, that would be a reason to start a new TPS program for people that have been here more recently and say, okay, well, until this is all cleaned up, you don't have to go back, right? They're not even going to consider that. But this last sentence here, where he's basically saying, hey, you guys, the Haitians are bringing this case, you're the real racists. That's what he's saying.

1:12:28 Thomas: I yeah it's like a loop I'm trying to I can't even it's so dumb I can'T even figure it out because he's like he's trying to say that the applicants are arguing you can't use country of of origin right he's like well if you couldn't use country of origin then then you then the whole program is unconstitutional but that's not what they're arguing they're argument right I mean they're agreeing that it's based on race like it just so happens that the the nations of origin that tend to that we're talking about share racial characteristics and

1:12:34 Matt: I knew we had to read this one.

1:12:49 Matt: Yeah. They're not even saying that. No. They are saying race. Yeah right. Right. By definition,

1:13:05 Thomas: Then to put in the part

1:13:06 Matt: There's not going to be. Yeah good.

1:13:07 Thomas: How would you how not the neighboring Dominican Republic what that how what does that even I don't even know what that means on like an any read like of what

1:13:16 Matt: I know. I know like

1:13:18 Thomas: Would that why would they do what are are Dominicans also the same race it doesn't even make any sense like in what why

1:13:21 Matt: If I were a middle school debate coach, I would be like, no, take this out. This is a stupid argument. What are you saying? I'm with you.

1:13:32 Thomas: Like I can't even I can'T even figure it out I actually can'T figure it out respondents themselves seeking protection from deportation for people from Haiti but not not the neighboring Dominican Republic, not

1:13:42 Lydia: Yeah it's it's very I'm rubber you're glue like sort of situation.

1:13:45 Thomas: The neighboring Dominican Republic.

1:13:47 Lydia: Whatever you say bounce off me and sticks to you.

1:13:47 Matt: It's a huge straw man too. It is positing an argument that has not been made.

1:13:53 Thomas: It's, it's so bad. Wow.

1:13:55 Matt: I realized that was the end of it and there is no next page. That is how he is ending it. That's his mic drop is that these people are actually the real racists because they just want their own country to be protected from deportation um come on

1:13:55 Thomas: What an idiot. He's saying TPS itself may be unconstitutional. I don't know if he's really saying that, but if he's saying that like, so he's seeing that if you had to apply equal protection to immigration, that would mean you'd have to grant TPS to all nations or none. On you'd either have to say all nations or none of them what

1:14:15 Matt: Yeah I sounds like it yeah yep

1:14:29 Lydia: At all times.

1:14:29 Matt: Nope ireland you're you're up yep yep yep we'd have to extend it and that's not the purpose of the program

1:14:34 Lydia: That's crazy.

1:14:35 Thomas: Man that's that's not how anything works that's how equal protection even works like at all you can have the right I mean you have different levels of scrutiny depending on what it is like you could you know like you there's not there's an earthquake in a place or there's a like circumstances in a that's you could say maybe you can make the point that like well if this applies then that means any nation that has like this level of catastrophe you do have to offer tps equally to like I guess I don't I don' think that's true man I don''t know I'm not

1:15:09 Matt: It's still case by case still has to be reviewed

1:15:11 Thomas: But like I get like at best you could say like if he was trying to do that gotcha like hey if this were true then you have to offer it to this other any any nation that has this level of tragedy or this level of whatever but he's not he's just saying neighboring Dominican Republic did they I mean they don't have the same circumstances though right and they're not the same like race so I don't even understand what the fuck he's talking about yeah

1:15:30 Matt: Not at all. Nope. Nope, they didn't have 100,000 people die in an earthquake. They did not have a massive cholera epidemic. And in fact, the DR has a very strict wall and keeps Haitians out and hates them and supports them as much as possible. They denaturalized a whole bunch of them. But if you go with our analogy before about if you had a state that was denying driver's licenses in a clear pattern, denying driver licenses to black people, this would be like the court coming back and saying, well, I noticed that you didn't argue that seven-year-olds should have driver's licenses. What does it have to do with anything?

1:15:45 Thomas: Jesus

1:16:02 Lydia: Yeah.

1:16:02 Matt: The state can set basic standards about who has driver's licences. It's just how they use them.

1:16:02 Thomas: Okay yeah it's true yeah that's incredible

1:16:07 Lydia: I'm just like so tired of all of this because like for me, it just always comes back to like what kind of world do I want to live in? And the world that I want to live is where countries. Yeah, well, it's like where countries like step up and help other people that are, you know, going through a lot like like we have we can have resources. We can have support systems for people in the world that are not from America. Like why wouldn't we want that? Why wouldn't that be the world we want? I don't get it. I just can't.

1:16:15 Thomas: Without Clarence Thomas yeah yeah Yeah.

1:16:33 Matt: And this decision tells you so much about the world that these people want, the majority that they want. Because think about just a few weeks ago, Kalei, the decision which found that it's racist to break up. If there's a possibility that you might have a minority white district somehow, that's affected.

1:16:51 Thomas: It's racist to fix racism

1:16:52 Matt: It's racist if it affects racism.

1:16:53 Thomas: Is what that decision was.

1:16:54 Matt: It is racist if it affects white people in any way.

1:16:55 Lydia: Racist against white people.

1:16:56 Matt: And then, of course, Clarence Thomas in his own affirmative action decision finding that that's racist to have any kind of distinction.

1:17:03 Matt: To me, I wanted to go deep on this decision because this shows in very clear terms on an issue I think anybody can understand about what racism is for these people because I don't even know.

1:17:14 Thomas: They're just liars. Like they're just stupid and or liars, wow.

1:17:19 Lydia: Nuts.

1:17:21 Thomas: Oh boy.

1:17:17 Matt: I don't even go. There

1:17:23 Thomas: These people, we need to do something about this court, Matt. We're not, we're not going to be okay unless we fix this court. It'S, it'S absolutely true.

1:17:23 Matt: You go. Yeah.

1:17:30 Thomas: If you go, I mean, even just doing the math, I forget what show I was doing that in, but it actually shocked me. Like we're, there's no, if anyone thinks that we're going to organically get back to a real court anytime soon. It's could be like a hundred years. Like it's not like the way that if we keep it how it is now, like how it goes.

1:17:35 Lydia: SIO, I think. Yeah, mm -hmm. Without radical change,

1:17:49 Thomas: Yeah. Cause they have such a majority. They're about to replace probably Alito and Thomas with two infants. Like we're never, we're ever going to have a sane court unless we do something about it. It has to be done. And I think even mainstream Democrats are starting to, you know, murmur about that a little bit, it which is good but uh all right uh thanks matt so much uh you had some good

1:18:11 Matt: Just want to read the very last paragraph from Kagan's dissent. I think that's a good place to end, and then we can wrap it. Everybody should read the dissent. We're not going to go through it today. It's a lot, but it is such a beautiful Kagan -Sotomayor dissent, Jackson joining, of course. And I just wanted to at least to end on a positive note to show that we do have lawyers and judges who know what they're doing. Here's the best way to end this.

1:18:33 Lydia: MIAT Doe and the other plaintiffs before us deserve better than today's decision. True enough that TPS is a temporary program and that it did not promise the plaintiffs never -ending humanitarian protection. But the law prevents the program from ending as it likely did here, without the required consultations about country conditions, and as to Haiti, with impermissible race -based considerations tainting the decision. At this juncture, both sets of plaintiffs ask for only one thing, that they may stay in this country while they continue to litigate their claims.

1:19:05 Lydia: For all the reasons given, they are entitled to that relief and should not instead be consigned to devastating and indeed life -threatening injury right

1:19:04 Thomas: Right holy

1:19:12 Matt: There you go.

1:19:12 Thomas: Shit yeah because as you you already said matt all of this is on the shadow docket so it's not even like it's just like hey they should be able to stay here while they're already fighting this bullshit stupid thing that you're probably going to overturn anyway

1:19:17 Matt: When they have demonstrated that this was done in completely the wrong way, like just in no way following the law, and that there's a really good reason to believe it was race -based. You've got all that evidence. Let the court review it. We haven't gotten to that decision yet.

1:19:37 Thomas: The shadow docket part is even more infuriating because it's like not only do we need to be racist we need be racist fucking yesterday they're like it's too slow you need to racist right now get them out on their asses because you could still be every bit as shitty of a court and wait until the case comes to you, right?

1:19:44 Matt: As soon as possible. That's right.

1:19:55 Thomas: You could still be that and be like, well, we're definitely going to overturn this, but you know, we'll let it play out. And then obviously Haitians would get to stay here while it plays out. Nope. Unacceptable. We need them out now.

1:19:55 Lydia: -hmm right

1:20:07 Matt: No, we need to let Trump spend the next two years enforcing this because if you waited, it could be the next term and then you'd have a whole year, year and a half of ICE not being able to run rampant in Springfield.

1:20:08 Thomas: Fuck you. Racist assholes. All right. We went over time, of course, but this racism is just too, too infuriating. It's just awful. We got to do something about it, folks. We got to do something. All right, Matt, thanks so much for taking us through that. Lydia, thanks so Much for reading us some racism. Lydia reads racism, the series. Yeah. No, we also got some great dissent in there as well. And thanks for listening, everybody. Spread the word, share the show. Really important. And we'll see you on Friday. We got lots more awful Supreme Court to talk about on Friday?

1:20:34 Lydia: Tis

1:20:48 Matt: It's Supreme Court season. Let's do it. That'S right. See you soon.

1:20:49 Lydia: June yeah man

1:20:51 Thomas: See you then.

1:20:56 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.