0:00:01.9 S1: In recognizing a communist, physical appearance counts for nothing. If he openly declares himself to be a communist, we take his word for it.

0:00:15.3 S2: Hey everyone. This is Leon from Fiasco and Prologue Projects. On this episode of 5-4, the hosts are talking about Harisiades v. Shaughnessy. In this case from 1952, three legal residents, but not citizens, of the United States faced deportation based on their prior membership in the Communist Party. The reasoning was that the party had advocated for the overthrow of the United States government, and therefore anyone who had ever affiliated themselves with it must have had the same goal. The court's ruling in this case established that some constitutional rights simply don't apply to certain groups based on their immigration status. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:02.5 S3: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have abandoned our civil rights, like our co-host, Rhiannon, abandoning us when we cover First Amendment cases.

0:01:13.5 S4: That's right.

0:01:14.2 S3: I'm Peter, and I'm here with Michael.

0:01:16.2 S4: Hey, everybody. It's just me. No Rhiannon.

0:01:20.5 S3: Rhiannon, not here, doesn't care about the First Amendment, doesn't respect our listeners enough. Doesn't think that they deserve to hear her thoughts, even though we beg her every time.

0:01:31.2 S4: Hates communists, thinks they all should be deported.

0:01:35.6 S3: She said she agrees with the case. Today's case, Harisiades v. Shaughnessy. This is a case about free speech and specifically about the free speech rights of non-citizen immigrants. This case answers the age-old question, are immigrants allowed to be communists?

0:02:00.0 S4: In the negative, answers the question in the negative.

0:02:03.1 S3: Yeah. Spoilers. You see, this case is from 1952, in the midst of the Red Scare, and Congress is targeting communist, sympathizers, in our midst. There is a law, the Alien Registration Act of 1940, better known as the Smith Act, that allowed for the deportation of immigrants who advocated for, or participated in, any attempt to overthrow the United States government, or belong to groups who did. In 1950, you get the Internal Security Act, which says that membership, even former membership, in the communist party is enough to prove that someone wanted to forcibly overthrow the United States government. Put those two laws together, and people start getting deported on that basis. And then a few of them, a few immigrants who are not yet citizens, say, hey, what about the First Amendment? The First Amendment says we have rights to free speech and assembly so surely you can't kick us out of the country just because of our past association with the communist party. And the Supreme Court says, think again, commies.

0:03:14.5 S4: That's right, you fucking pinkos.

0:03:17.1 S3: Get the fuck out.

0:03:18.3 S4: There's the door.

0:03:20.4 S3: In the absence of Rhiannon, I will entrust the background to you, Michael.

0:03:24.7 S4: Oh, wow. Thank you. I'm honored. There are three plaintiffs in this case, but I really want to talk about one of them, not Harisiades, but a woman named Dora Coleman. And Dora emigrated from Russia in 1914 when she was only 13 years old. She first joined the communist party in 1919 for about a year before leaving it. She was 18 years old. At the time, it was called the Worker's Party. It wasn't the communist party. She again joined for like a year or two each time, twice, once in 1928 and again in 1936. The majority here concedes. She held no office and her activities were "not significant". And to be clear, she's not a citizen. She's like a lawful permanent resident.

0:04:22.7 S4: It's worth considering the era for a moment. When she first joins the communist party, World War I had just ended, Woodrow Wilson, who is extremely racist, is president. He's a big defender of the Ku Klux Klan, after the federal government had been desegregated during Reconstruction, Wilson has it resegregated. The second Ku Klux Klan is on the rise. Income inequality is at the highest point in American history. Workers are being crushed by their bosses and by the political elites, including the Supreme Court, which is striking down progressive reforms. Anti-European immigrant sentiment is rampant throughout the country. And then towards the end of this period, of course, is the Great Depression and World War II. Dora says she engaged with the communist party here and there because it was advocating for issues she cared about. I couldn't find anywhere any record of what those specific issues were, but it's not hard to imagine that they were issues that by 1950 could have been pretty mainstream. About workers' rights, about civil rights, about the place of European immigrants in America. Certainly things that today I think would be probably very mainstream.

0:05:51.1 S3: And in general, it's worth situating yourself in the 1920s or so here. Because communism means a lot of things to us now.

0:06:03.5 S4: It's a very loaded idea.

0:06:06.7 S3: When you talk about communism, you're talking about all these different concepts, ideas, ideological, practical, etcetera, that all get bundled up. All of this history about the Cold War, the Soviet Union.

0:06:21.7 S4: Stalin. There are historical figures that it brings to mind. When she first joins the Communist Party, Stalin has never held power.

0:06:31.6 S3: We're talking about an era where communism and fascism are for the most part these sort of remote ideologies that are flourishing in other parts of the globe and that's essentially it. And we're talking about an era of extremely low information. And we were joking about this before, but my best guess about how most people in America became communists or fascists or whatever if you're joining a more radical organization when you're young, it's probably 'cause you ran into someone charismatic.

[laughter]

0:07:08.2 S4: Like a particularly well-spoken union boss or something at the factory where you work.

0:07:14.1 S3: And someone who's telling you, Hey we're working for labor rights, wages, etcetera, things that line up with your personal situation. It's probably pretty rare that people are joining these parties due to some grand conception about the global communist project.

0:07:34.5 S4: And they're certainly not joining because they explicitly want to violently overthrow the federal government. [laughter] They want better wages and they don't wanna work 80 hours.

0:07:46.3 S3: Yeah. They're commies.

0:07:48.4 S4: Yeah. So in any event, during the period when Dora is experimenting with communism shall we say, like the 1920s and 1930s, it was considered a deportable offense to be plotting to overthrow the American government. And being an active member of the communist party was considered a deportable offense as a result of that. But according to the Supreme Court in 1939, in a case called Kessler v Strickler, prior membership in the Communist Party was not itself grounds for deportation. You had to be an active member. But the Alien Registration Act of 1940 sort of changes stuff, starts making things retroactive, and then as Peter mentioned in 1950, you have subsequent statutory clarification making clear that membership in the Communist Party at any point in time is grounds for deportation.

0:08:52.9 S3: Basically, equating membership in the Communist Party with intent to violently overthrow the government of the United States.

0:09:00.7 S4: And so when this case is decided and she is deported, Dora Coleman is 51, she's been living in the United States for nearly all of her life, is married to an American citizen, has two American children, everyone agrees she never did anything significant or minor in any effort to overthrow the American government violently or otherwise and hasn't been involved with the Communist Party in any respect for over 15 years. And she is sent to Russia.

0:09:33.8 S3: This case winds its way to the Supreme Court. And the question is, can people be deported on these grounds? Now there is one key thing about this case to keep in mind and that's that the court is assuming that membership in the Communist party naturally includes a desire to overthrow the government.

0:09:57.6 S4: Yes.

0:09:58.0 S3: The question of whether any given member of the communist party wants to overthrow the government or is taking steps to overthrow the government that is assumed away in this case. The court says that we're just assuming that. That was a factual finding in the lower court and they just move on. We'll circle back to that in a minute. Let's jump into the opinion, although I do want to point out one legal item that is important, especially for our non-lawyers. The Constitution applies to non-citizens.

0:10:31.3 S4: Within our territorial borders.

0:10:33.1 S3: That's right. These folks are immigrants within the United States. They're not citizens yet but they still have constitutional rights. The scope of those rights is at dispute here and you'll see the court get a little weird about it later, but it's not controversial that non-citizens within the United States have constitutional rights. The first question posed here is whether these deportations violate the immigrant's right to due process. And by the way, I'm gonna say immigrant a lot here, I mean specifically non-citizen immigrants the legal term is alien which we'll say sometimes, but that gets confusing because now there are congressional hearings about real outer space aliens. [laughter] And so I wanna be specific that we're talking about earthbound immigrants. [laughter] All right. The court in the due process section is doing this holistic analysis of whether the legal process afforded to these folks is in some way inadequate.

0:11:33.3 S3: Essentially, they're looking at whether this is fair and that's what the due process analysis entails. And so in this discussion about fairness and due process and whatever, the court just seizes the opportunity to talk some shit about immigrants.

0:11:49.4 S4: Yes, yes, yes.

0:11:51.3 S3: The court has a very interesting, antiquated, weirdly nativist view of immigrants that comes through here. The gist of the section is that the court is suspicious of longtime immigrants who have not become citizens and implies that they might have dual allegiances of some kind.

0:12:10.0 S4: Yep.

0:12:10.2 S3: The court says that, "By withholding his allegiance from the United States, the immigrant leaves outstanding a foreign call on his loyalties." They say that non-citizens, "Retain immunities from burdens that the citizen must shoulder." Like compulsory military service. And that "To protract this ambiguous status within the country is not his right but is a matter of permission and tolerance." And that the government has broad power "To terminate its hospitality" [laughter] The whole section seems to be like a remnant of a very specific era. We're in the wake of World War II, and if you zoom out a little bit, these justices it's 1952 have lived through two world wars. This is an era where the world feels distinctly divided, tumultuous, there's a heightened suspicion of foreigners in general and paranoia about communism specifically.

0:13:18.0 S4: Also speaking to the era, the supposed privilege of avoiding compulsory military service is a benefit enjoyed by Dora Coleman, who was not eligible for military service as a woman at the time.

0:13:31.1 S3: It was just one of the Court's complaints about immigrants, like as if they're dodging military service or something.

0:13:38.3 S4: Purposely extending the status to avoid having to serve in the war.

0:13:43.1 S3: Now, today, I think the common understanding of immigration and immigrants is like they are seeking a new and different and presumably better life. People want a different set of opportunities or to live in a different culture, whatever. It's something that is sort of specific to the individual. We view it as a matter almost of individual liberty, but the Court seems to view it as if the act of changing your citizenship is about declaring your allegiance, and that's the key component of it. We'd look at this situation and say that these people living in the United States for so long cuts in their favor.

0:14:24.0 S3: Their entire lives are here, you shouldn't be deporting them. But the Court actually holds that against them, hinting that it's suspicious that someone would stay here for so long without naturalizing. Again, just this sort of like, what are these people up to? Kind of like baseless, weird speculation about their loyalty to the United States. And just to take a step back here, I do want to give people a sense of what the naturalization process was at the time. In 1906, there's a law passed to standardize naturalization at the federal level. And what ends up happening is that there is now a process, and it takes a few years and there's hearings and things like that to become a citizen. The Court is acting like it's nothing, that it's sort of weird that these people haven't done it, that they're somehow purposefully remaining in this legal gray area such that they're taking advantage of us somehow.

0:15:30.5 S4: They've got some form filled out, magneted to their refrigerator, that they just have to stick in the mail and send back, but they haven't done...

0:15:38.3 S3: It is not like a trip to the DMV and then you're a citizen here. It's a whole fucking to do. And so these folks have all had time to do it, but we're not talking about an hour in a bureaucrat's office here. We're talking about a lengthy process that's probably pretty fucking annoying. And it's not wild to think that some people just wouldn't want to do it. But the Court sort of looks at that and is like, maybe they're spies or double agents or something.

0:16:06.4 S4: Yeah. To that point, I forget which of the three opinions mentions it, but right around the time Congress starts saying that membership in the Communist Party at any time is grounds for deportation in 1940, the Communist Party stops allowing immigrant membership.

0:16:24.6 S3: And to be clear, the Communist Party was actually expelling...

0:16:28.2 S4: That's right.

0:16:28.9 S3: Immigrants, non citizen immigrants during this time, they were kicking them out of the Party so they would not get in trouble. The Party was protecting people from being deported.

0:16:40.3 S4: And it's the majority. So we can't really draw any conclusions about the fact that none of these plaintiffs here have been associated with the Communist Party because the whole point was to avoid legal jeopardy. The Communist Party was like, frustrating our ability to understand if these are trustworthy immigrants or not.

0:17:07.7 S3: What was actually happening was that the Communist Party was protecting people from being deported.

0:17:14.1 S4: Yes, Yes exactly [laughter]

0:17:14.2 S3: Like, no, don't join the Communist Party. They're going to deport you.

0:17:18.3 S4: We don't want you deported. Yeah exactly.

[laughter]

0:17:18.4 S3: It's like, the government says, "Hey, we're going to deport you if you join the Communist Party." And then the Party is like, okay, well, then we're not going to let immigrants join, it's going to get them deported. And the government is like, "Aha, they're not letting them join because they're being sneaky," What is that you're fucking talking about.

0:17:37.5 S4: Exactly [laughter]

0:17:38.7 S3: You created the incentive structure here, whatever. It's so stupid. This is generally taught and understood as a First Amendment case, but what's jarring about it is that the Court barely mentions it. It just tosses the First Amendment claim out without much discussion. They say that Communist countries simply "suppress everything distasteful." But by contrast, our government doesn't suppress everything, only incitement to overthrow the government, which this is.

0:18:10.6 S4: That's right. [laughter]

0:18:13.5 S3: Just being like, look, we're not Communists, all right? In fact, we're the opposite of Communists. We deport all communists. [laughter]

0:18:18.4 S4: That's right.

0:18:20.8 S3: It's so fucking funny. They're like, look, we're not authoritarians like the Commies, all right? Now get the fuck out if you're affiliated with a political party we don't like. Now, this section is sort of remarkable for a few reasons. The main issue here is that they are dodging the fundamental concern, which is that they haven't actually shown that these individuals were involved in a plot to overthrow the government. And this sort of like, circles back to the assumption the Court made about membership in the Communist Party equaling being part of a plot to overthrow the government. [laughter] They're making a series of assumptions. First, the assumption that the Communist Party USA was throughout its history, institutionally engaged in a plot to forcibly overthrow the United States government. And then B, that mere membership in the Party made you an accomplice in that plot. Neither of those assumptions is grounded in anything particularly real or compelling but they are crucial assumptions that the court is making and just sort of like gliding past.

0:19:25.4 S3: Now, this case is part of a series of attacks on speech rights in the context of the anti Communist panic of the mid century, the second red scare of course, the first was right after the revolution in Russia. There was another case a year prior, Dennis V. United States, which I'm sure we'll eventually cover, about the prosecution of several leaders of the Communist Party USA for the same basic thing, plotting to overthrow the government. And this is despite the fact that there's no evidence that any of them were actually engaged in a plot to overthrow the government. The charges in that case were predicated on the writings of Marx and other Communists who said like, in the event that it's the last available option, forcible revolution to establish the proletariat in power is acceptable.

0:20:20.2 S3: That's sort of like in the old communist tracks. Now, that was a terrible case, but at least those were like the leaders of the party. [laughter] You could at least craft like a theoretical construction of the facts where they are the vanguard of a conspiracy to overthrow the government. Or like have connections to Moscow or whatever you need to like create some seditious conspiracy in your mind. But this is just some hapless people who at some point in like the 1920's thought that communism sounded like a good idea. We have no indication that they had any inclination to overthrow the United States government. And in fact, there is no evidence that anyone here took any material steps to overthrow the United States government. [laughter]

0:21:14.0 S3: This case is sort of fucked up because everything that we understand the First Amendment to be now just gets like tossed aside by the court in this case. It's just not even talked about like it's a serious concern. The idea that your mere affiliation with a party who itself has a mere affiliation with an idea that you think is dangerous, that that's enough to deport someone or imprison someone. It just feels ridiculous. But that is the state of free speech law in 1952.

0:21:53.1 S4: There's one concurrence and one dissent. Frank Ferrer writes a concurrence where he implies pretty heavily that he thinks this is a terrible outcome and bad policy, but he says these are political questions that are best resolved by the elected branches and outside the courts like expertise and purview. And so I'm just gonna read a little quote from it. He's talking about prior cases that had granted these very broad, what they call plenary powers to the elected branches, and especially Congress, in the area of immigration in excluding aliens and removing, deporting aliens. And he says in their personal views, libertarians like Mr. Justice Holmes and Mr. Justice Brandeis doubtless disapproved of some of these policies, departures as they were from the best traditions of this country, and based as they have been in part on discredited racial theories. But whether immigration laws have been crude and cruel, whether they have reflected xenophobia in general or antisemitism or anti-Catholicism, the responsibility belongs to Congress.

0:23:09.9 S4: And he literally says, you don't come to us to change this policy, go to Congress. These are statutes and it's not our place to review them. Douglass, our human rights king, is in dissent, joined by Hugo Black, his dissent I thought was pretty good, not as sharp as I would like, but he sort of attacks this idea that this is something that's best entrusted to the political branches essentially. And he calls the case law from the late 1800s about excluding Chinese immigrants as like inconsistent with the philosophy of constitutional law in its entirety. And instead of centering this whole thing in the idea of like inherent sovereignty that the majority does, and we'll talk about this a little more later, but he just says, look, this is an implied power, Article one, section eight, gives Congress the power to establish a uniform rule of naturalization and the ability to remove and deport aliens or exclude them at the border is an implied power, a penumbra, if you will. And these are people under the fifth and 14th amendments where they have expressed guarantees of due process and life, liberty and property, and the equal protection of the law. And he says, "Implied powers should not trump express guarantees under the Constitution." which I think is right. [laughter] He's got...

0:24:41.6 S3: He's onto something more than that, which is like the idea that there are just like areas of law that the court can't touch seems like a very bizarre interpretation of the Constitution. Like, oh, you can violate equal protection, but only if you're doing it in the immigration context. That can't be how the Constitution is interpreted. [laughter] It must be that the equal protection clause or whatever else, applies across the government. It just...

0:25:14.6 S4: But, in point of fact, that is precisely how this case interprets the constitution and remains good law and is cited for that proposition. I'll talk about this later. But this case is cited for the proposition that Congress can violate the Constitution in the immigration context. That's what this case stands for in immigration law.

0:25:37.4 S3: And that's the way in which this case still resonates. There are ways in which it does not. And I do wanna clarify those.

0:25:43.0 S4: For sure.

0:25:43.7 S3: A few years after this, you get Yates v. United States, 1957, where the court overturned the conviction of some lowered level communist party officials and said that there had to be active efforts to overthrow the government for a conviction under the Smith Act, the Alien Registration Act of 1940. And then you get NAACP v. Alabama where the court created the freedom of association, which isn't expressly in the Constitution, but the court said, look, you have rights to speech, you have rights to assembly, to petition the government. And if you want those to mean anything, then you need the freedom to associate with whoever you want without being just charged for that in and of itself. And then in 1969, you get Brandenburg v. Ohio, where the court says you can only convict someone for inciting like imminent, lawless action. None of this loose association bullshit, none of this like, oh, you belong to the Communist party and the Communist party adheres to this and therefore blah blah blah. None of that shit. You need to be about to do something, you need to be right up near it for it not to be protected under the first amendment.

0:27:00.4 S4: Like maybe riling up a mob and sending them to the capitol to stop the counting of electoral votes, for example, just one thing.

0:27:08.9 S3: I don't know if I wanna touch such hot button issues. [laughter] I do think it's worth pointing out while we're on the topic. One of the reasons that the Warren court was so unpopular was that these and a bunch of other opinions essentially ground McCarthyism to a halt. And so you get like Earl Warren and all of his allies on the court being accused of being communist sympathizers and facilitators. And that's a big part of what sort of fosters the anti Warren court sentiment and ultimately propels a Republican revolution on the court under Nixon, where he's trying to replace as many Warren court members as possible and sort of like forms part of the foundation for the conservative legal movement revolution of the 1970s. This sort of sense that the Warren court was communist and fringe, radical, whatever. That stuff was popular sentiment, including among elites who were frustrated because they were members of Congress building their careers out of being anti communist.

0:28:15.9 S3: And all of a sudden the Warren court is being like, no, come on, you can't do this shit. [laughter] This is awful, guys. And if you look at what this opinion says, I mentioned there's basically nothing resembling our modern understanding of free speech. There's also no remnants of our modern understanding of equal protection for that matter. This effort in the second Red Scare to crack down on the domestic communist party was one of the most comprehensive campaigns of speech suppression of the last century in the United States. And without the Warren court, there's really no telling where it might have gone. And I just think that's sort of worth flagging. It's a big reason that the Warren court had so many haters, but it's also a huge part of what made them great and part of why, despite the way in which conservatives position themselves today, the heart of the American free speech movement lies on the left and really like found its wings with the Warren court.

0:29:24.6 S4: Yeah. And so to that point, the court, they basically are like, yeah, we're all in on the Red Scare, we buy it. And so they say, this is a quote, "Under the conditions which produce this act, can we declare that congressional alarm about a coalition of communist power without and communist conspiracy within the United States is either a fantasy or a pretense?" Literally they're like, yeah, we're frightened of communism and communists and people are right. The courtism is right to be rooting these people out. They hide it in a little rhetorical question.

0:30:00.4 S3: They say, and they're talking about like 1940, they say, "Communists in the United States were exerting every effort to defeat and delay our preparations, our preparations for war." Now, there is no citation, [laughter] like there is no anecdotal explanation of what that might be talking about. Now, were there communist anti-war organizers at home? Sure. There were also fascist anti-war organizers at home there.

0:30:30.4 S4: Henry Ford opposed the war until Pearl Harbor. A lot of people opposed entrance to the war.

0:30:36.1 S3: But they are sort of without saying it, implying a seditious conspiracy to undermine the war effort. They don't actually explain what that is. And we were talking about this in prep, there's such a weird element of this where it's like, I understand that the cold war has kicked into high gear, but we were on the same side as the Soviets.

0:30:58.6 S4: Yeah. Once Germany invaded Russia in 1941, all the communists in the US were like on board with it. The communist party was like, everybody was all in on the war effort. And Russia was a major ally in World War II.

0:31:13.1 S3: Yeah. There's something so fundamentally bizarre about this being right after the war ends, more or less. And no one acknowledges that we were fighting with the communists in the war and it's surreal.

0:31:30.6 S4: I don't know, Peter, the Supreme Court says, certainly no responsible American would say that there were then or are now no possible grounds on which Congress might believe that communists in our midst are inimical to our security. As I mentioned, there's this doctrine in immigration law called the plenary powers doctrine, the three sort of main cases that are cited for it are this case and two others from this era, Knauff v. Shaughnessy and Mazet v. Shaughnessy. Believe it or not, this is considered the least deferential to the elected branches of the three because it's about people who are already in the country. When it comes to people who are out of the country trying to get in, the courts are like, go hog wild. Do not give a shit at all. But this idea, the plenary powers doctrine, it goes back to the 1880s. And it's this idea that the power to exclude and remove aliens is something that's inherent in sovereignty, that a government doesn't make sense if it can't do these things.

0:32:38.9 S4: And therefore, unlike everything else the government does, these powers don't really need to be located in the constitution, don't need to be justified by citations to constitutional provisions of congressional or executive power, and leave very little room for judicial review of congressional or executive action in the immigration context. This is totally at odds with the entire structure of our constitution and how literally everything else is done. The way the constitution is designed is Congress can't do anything at all unless it cites to one of its enumerated powers. It can raise money, it can spend that money on the general welfare, it can regulate interstate commerce, et cetera, et cetera. And whenever it does anything, whenever it passes a law, it needs a hook. It needs to say, we're doing it pursuant to this power. And there are powers that make sense in the immigration context. There is the ability to, and the mandate, to make a uniform rule of naturalization and there is the ability to regulate interstate commerce, both of which imply a general ability to regulate the entrance or exclusion of immigrants. That makes total sense. It's very easy to locate these sort of congressional powers in the constitution.

0:34:07.8 S4: Say Congress is bound by the constitution in this context like it is in every other context and allow for regular judicial review of congressional and executive action. The courts just decided they don't want to do it. They've decided to let the people run wild with their basis instincts for the last 140 years with very, very little pushback from the judicial branch.

0:34:34.2 S3: And our modern immigration law is built to top that.

0:34:38.5 S4: Yeah. This case is still cited, Harisiades was cited in the Muslim ban case, Trump v. Hawaii.

0:34:43.6 S3: Yeah, exactly. It was cited in Trump v. Hawaii as just another example of why the court should be loathed to interfere with immigration decisions. And it's one of those things where you start peeling back the onion. And you expect that maybe there's a well-reasoned principle holding the whole thing together. And what you actually find is just racism.

0:35:10.7 S4: Yeah. Or anti-communist scare tactics. That's it.

0:35:14.9 S3: Right. But our modern immigration law is shaped by the fact that people wanted fewer Chinese people coming to the country in the late 1800s, pass laws titled the Chinese Exclusion Act.

[laughter]

0:35:31.0 S4: Yes. Yes.

0:35:32.4 S3: Titled like the weird doing racism acts. Courts are like, alright, well you have a lot of power in this area. And then like it just keeps getting built on, so that like by the 1950s, they're not really talking about race anymore, they're doing it in this context with like political enemies, but they're citing to those cases from the 1800s to be like, there's a long tradition Of deference to the government in these matters. And then 70 years after that, you get Neal Gorsuch being like, yeah, there's a long tradition of deference to the government on these matters. They cite this case from the '50s. It's all racism all the way down. [laughter]

0:36:16.4 S4: I was gonna say, nobody wants to cite Chae Ching Ping and Fang Yu Ting anymore, the Chinese exclusion cases, but they cite this case which relied on those cases, explicitly cite to them.

0:36:28.1 S3: Right. It really is a superstructure built atop racist principles from the late 1800s and then you just like throw in weird anti-communist stuff from the mid-century to spice it up. It's wild. And not to say that modern immigration decisions aren't racist, they are. Trump v. Hawaii is profoundly racist.

0:36:52.0 S4: Absolutely.

0:36:52.6 S3: But the court just like does not wrestle with the fact that all of the modern analysis is predicated on a belief that racism is fine and good.

0:37:08.4 S4: Yeah. That's right. And to the point about modern cases, just a few that cited this case, how its legacy looks. In the late '70s there was a British lawful prominent resident married to an American citizen with American kids, sole breadwinner for his family, deported for simple possession of marijuana, family just destroyed. There's a case, Demore v. Kim from 2003 written by William Rehnquist, noted segregationist piece of shit, dead and in hell as we speak.

0:37:45.1 S3: True.

0:37:45.6 S4: Who cites this case for the proposition that laws that would otherwise be unconstitutional when applied to citizens can be okay when applied to resident aliens, even lawful permanent residents. In that case, they were looking at a no bail provision where people were just being held without hearing, without bail, without nothing for for months, months and months and months. And then there was, I had mentioned this before in the podcast, but there was a Guantanamo case Kiyemba v. Obama about these 17 Uighurs who fled persecution in China, were rounded up in Pakistan. Sorry, Pakistan, Pakistan. Rounded up in...

0:38:31.2 S3: Depends how much think you wanna put on it.

[laughter]

0:38:34.2 S4: Rounded up in Pakistan in 2005 in the middle of the big war on terror craze, sent to Guantanamo where they were held for years, probably tortured, everybody agreed they weren't actually enemy combatants. But they couldn't be sent back to China or active war zones or anything like that and didn't have anywhere to go. And so a district court granted their habeas corpus, the rare win for a Guantanamo Bay detainee and ordered them released into the United States and the DC Circuit overruled that citing this case and the two others I mentioned, Mazet and Knauff, for the proposition that like Congress doesn't have to let anyone in the country they don't want. And that includes people they kidnapped and brought to torture camps in Cuba.

0:39:28.7 S3: To sort of tie this all together, what basically happens in American law is that in an effort to facilitate prejudice against Chinese immigrants in the 1800s, you see the creation of this doctrine that gives great deference to the government in the immigration context. And then for the next 150 years or so, that gets deployed in the service of various prejudices, whatever prejudice is most popular at the time. So at the time it's anti-Chinese animus, but then it gets used to pummel, Irish and Italian immigrants early in the 1900s. It gets used to deport communists or people who once joined the communist party for a year in the mid-century, it gets used to deport immigrants from Mexico and Central America and it gets used to brutalize Muslims. All of these things flowing out of one made up doctrine where courts are just like, when it comes to immigration, the constitution like sort of doesn't always apply. And that's it.

0:40:45.8 S4: That's it.

0:40:48.8 S3: I have one final thought about this case, and it was something that was in the back of my mind the whole time. This case and the Red Scare in general are a good illustration of how this country treats different types of people and how it categorizes people in ways that don't necessarily make sense. Now, on one hand you have the left, communists, socialists, the fact that Karl Marx wrote about potentially violent revolution in the 1800s is enough to deport former members of the Communist Party and to convict party officials nearly 100 years later. But if we're talking about groups of Americans who want to overthrow the government, and have taken significant material steps toward doing so, there's really only ever been one. Hasn't there? But there is almost no discussion of the Neo-Confederate movement as a seditious or treasonous one even now let alone during this era. Which is remarkable because this case takes place just a few years after the formation in 1948 of the Dixiecrats. An expressly segregationist group of politicians. The Dixiecrats were briefly an independent political party, they run Strom Thurmond for president in 1948, with their flag being the Confederate battle flag.

0:42:23.2 S3: The flag of a war effort expressly intended to forcibly overthrow the United States government. I know we've all become quite numb to the sight of that flag, but that is what it stands for. And it stood for that a little bit more in 1948, I promise. And at no point was there a significant political or legal effort to characterize that as some sort of sedition. They fielded a candidate for president of the United States under that banner and then when that failed, returned to the fold of mainstream American politics, and continue in some form or another to be a major political power center in this country. And yet mere association with the communists was enough to prove that you're plotting to overthrow the United States. That is how bad good boy, bad boy theory can get when it comes to this shit. The loosest Association with the communists means that you're out of the country, but someone waving a flag that basically has, "We want to overthrow the federal government" written on it, not enough. That's fine. That's essentially political expression.

0:43:42.5 S4: The federal government had to send in troops to enforce Supreme Court decisions. To enforce desegregation orders, integration orders, because southerners were just like, "Fuck you. No. We don't respect your authority here. This is our state." That's the whole ethos of the "state's rights movement" is that the states are more important than the federal government and should be able to tell the government to eat shit. Sometimes violently, it's very violent movement. To bomb churches, lynch plaque Americans and most recently, of course, violently stormed the Capitol to stop the counting of electoral votes.

0:44:28.1 S3: Some of them also wearing the flag.

0:44:29.7 S4: Yes. That's right. Flying the confederate battle flag in the nation's capitol, and look at the nuance that that gets, look at the consideration and care that is given to charging decisions there where sort of the oath keepers are getting charged with seditious conspiracy, but other people are just getting parading without a permit charges and suspended sentences. And we're being very careful about elected officials who are clearly involved in the planning and orchestrating of that attack, making sure they don't see any consequences for the most part.

0:45:04.2 S3: Yeah, and all of this is sort of predicated on the idea that there are certain ingroups that America inherently belongs to. That if you're some white person from the South, you can literally say, "I want to overthrow the United States government." And that is somehow viewed as patriotic. Because...

0:45:27.8 S4: Because the tree of lividity is refreshed from time to time with the blood of tyrants, don't you know?

0:45:33.4 S3: Right. And because since it's founded, there has been a perception by many groups of people that what America actually is, is a certain group of people. Not a place, not a set of ideals. What it is, is the inheritance of white people and white men especially. And so when good old boys from the South feel the presidential candidate on the grounds that the federal government is overreaching, and we must reestablish Confederate glory somehow in 1948, that's not seditious.

0:46:09.1 S4: Nope.

0:46:09.6 S3: But union organizing, saying that perhaps you think that government is unfair to labor, which is almost certainly why the Communist Party was successful in recruiting in the 1920s. That's enough to get you tossed. And people don't really see a disconnect there, but that's all it is. It is a belief about who America belongs to.

0:46:31.8 S4: That's right.

[music]

0:46:36.7 S3: Alright. Before we sign off here, if you want to hear Michael and I talking a little bit more about overthrowing the government.

0:46:44.3 S4: That's right. [laughter]

0:46:46.1 S3: If you're like, 'I really like the Michael and Peter rapport here, where can I get more of that?"

0:46:52.4 S3: Yeah. We just streamed on YouTube last week, bit of a reaction to the latest Trump indictment where he was indicted.

0:47:00.3 S4: That's right.

0:47:00.9 S4: For his attempt to overthrow the government and that's up on our YouTube channel 5-4 pod, and it was a good discussion and timely in the context of this case. We did not know when we chose this case that Trump was gonna get in trouble for trying to overthrow the government. We thought these immigrants from the 1950s would be the only people to get in trouble for trying to overthrow the government.

0:47:27.6 S4: That's right.

0:47:28.4 S3: But yeah, I think everyone wants to hear, what we think of the indictment. Do we think Donald Trump will be sent to prison? Do we think he will be executed? Find out, find out our thoughts, although I believe it was Cersei Lannister who said, "When you play the Game of Thrones, you win or you die."

0:47:48.0 S4: That's right. [laughter]

0:47:50.3 S3: And I wish I had made that joke. [laughter] Next week, students from Fair Admissions, the Harvard, the affirmative action case from this past term, a 237 page set of opinions.

0:48:08.7 S4: Fuck.

[laughter]

0:48:08.9 S3: Say a prayer for us folks, we have to read for you. I wish I was just back to being a big law attorney. [laughter] This is by far the most work we've done for 5-4. I'm reading a whole book for 5-4, and it's less than this fucking opinion.

0:48:28.3 S4: It's gonna suck. It's gonna suck.

0:48:33.2 S3: Follow us on all sorts of social media at 5-4 Pod all spelled out. You can go to fivefourpod.com/support to find out the various methods for subscribing to our podcast to get premium and ad free episodes, access to special events, access to our Slack, all sorts of shit. We'll see you next week.

0:48:56.5 S4: Bye everybody.

0:48:58.4 S2: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan De Brew. Peter Murphy designed our website, fivefourpod.com. Our artwork is by TeddyBlanks@chipsny and our theme song is by spatial relations.

0:49:25.3 S3: Lee was telling me about that she found the channel that was just baby names that had like 3000 after four days. And I was like, "We're beating the fucking baby name channel."

0:49:36.6 S4: That's right.

0:49:37.0 S3: It's literally just some lady who's like an influencer on various different platforms who just gives new baby names every day. And obviously if you do that every single day, they are like preposterous. [laughter] These names are like, It's like ridiculous. She'll be like, "You're looking for an August baby's name. I love Spronkton Jello Shot, It's just, it has everything you need and people are just like in the comments being like, "Love Spronkton as a name."

[laughter]

0:50:04.7 S4: There's your little Easter egg, there's your post credits.