00:00 Court: We'll hear argument today in case 17965, Donald Trump, President of the United States versus Hawaii. Mr. Francisco.

[music]

00:09 Leon Neyfakh: Hey everyone, this is Leon Neyfakh, co-creator of Fiasco and Slow Burn. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about a relatively recent case, Trump v Hawaii.

00:22 President D Trump: We're gonna have a very, very strict ban and we're going to have extreme vetting.

[background conversation]

00:31 Leon Neyfakh: At issue was the President's Executive Order restricting travel to the United States for citizens of five majority Muslim countries.

00:39 Announcer: Airport servicing international flights across the country were flooded with protesters yesterday after Visa and green card holders were denied entry.

00:46 Leon Neyfakh: The Muslim ban, as Trump had described it on the campaign trail, became a major test of whether the Supreme Court would serve as a meaningful check on the new president. This is 5-4, a podcast about how much the Supreme Court sucks.

01:06 Peter: Alright, welcome to 5-4, where we dissect and analyze the Supreme Court cases that have eaten away at this nation, like termites in our floor boards.

01:16 Rhiannon: That's a good one. Yeah.

01:18 Peter: Thank you. I am Peter, Twitter's The Law Boy, and we are recording from Coronavirus quarantine. So I am in my girlfriend's closet, and from a separate closet across New York City, we have Michael.

01:36 Michael: That's right, I'm in my own closet.

01:37 Peter: And from a studio and a part of the country that is apparently not worried about this at all, Rhiannon.

01:42 Rhiannon: Hey guys. [laughter]

01:47 Peter: Look, as we've said on Twitter, we're never gonna stop production. It doesn't matter if some of us die...

01:52 Rhiannon: Oh god.

01:53 Peter: No matter what, I don't care what happens to this country, we are going to be just shoving this podcast down our listeners' throats for months to come.

02:04 Rhiannon: Well, that's why we're contractually obligated.

02:07 Michael: That's right.

[laughter]

02:09 Peter: That's right. We have no choice. A few months ago, I was like, "Oh, I should have a podcast", and now I'm in my girlfriend's closet in the middle of a global pandemic.

[laughter]

02:21 Peter: So today, we are covering Trump v Hawaii, better known as the travel ban or the Muslim ban case, where the Supreme Court in a 5-4 ruling upheld the validity of the Trump administration's proposed restrictions targeting predominantly Muslim countries. This case highlights a couple of important things; how incredibly deferential the Roberts Court has been to the Trump administration, a trend that has started to gain some public attention in the recent last few months. And another is the massive disparity in the treatment by the courts of the rights of groups it favors and groups it does not. And together, these have sort of combined to allow the court in this case to almost completely disregard the fact that Trump openly touted the travel ban as a Muslim ban, and accept on its face, the administration's claim that the ban was in fact a matter of national security concern. So, some of you may recall that as a candidate for president and following the San Bernardino attacks, Donald Trump stated that he was calling for, "a total and complete shutdown of Muslims entering the United States, until our country's representatives can figure out what the hell is going on."

[laughter]

03:40 Peter: And at the time, some commentators thought that maybe this suggested a bias against Muslims. Yeah, and these are fire brand commentators. [chuckle]

03:53 Rhiannon: [chuckle] Yeah. Liberal elite, politically correct, losers.

03:57 Peter: Right. And legal commentators pointed out that such a policy would likely run afoul of several amendments to our constitution. Notably the first one with its promise of freedom of religion.

04:09 Michael: Yeah, that's a big one.

04:11 Peter: It's right up top. And people were concerned, and I just, I [chuckle] wanna note that the phrase, "until we can figure out what is going on" has always been incredibly funny to me, because it implies that at some point in the future, there might be like a eureka moment concerning what's going on with Muslims, and after we figure it out, they're allowed to come again.

[laughter]

04:38 Rhiannon: Well, no, as someone with a Muslim family, maybe it's time to tell you guys, there's something going on with us and you'll find out. Stay tuned.

04:47 Peter: Yeah, I bet we will. [chuckle] So Trump dials the language down, right, as the election cycle goes on. I guess his lawyers sit him down, like Rudy Giuliani sits him down and is like, "We can't ban them all, so we're gonna have to do something else," in what must have been just an unbelievably lengthy conversation with Donald Trump. [chuckle] They're like, "But we can ban a bunch of Muslims. Don't worry, dude, we're gonna do it. We just have to change the language." And so they stopped saying Muslim ban, they start saying extreme vetting, and things like that. And I wanna point out that conservatives have taken a pretty hard line on the Muslim issue since 9/11, especially. It was very weird to see it coalesce so openly, and almost refreshing. It was simultaneously terrifying and refreshing to see them just talk about it like you imagine they must at every dinner party or whatever. So Rhi, do you wanna take us through some of the background here?

05:54 Rhiannon: Sure thing. Always happy to. [chuckle]

06:01 Peter: Are you okay? What was that?

[laughter]

06:04 Michael: Is that a symptom?

06:06 Peter: Oh, shit.

06:07 Rhiannon: That's just me clearing my throat. So yes, the bowl of disgusting moldy macaroni and cheese, Donald Trump, on January 27th, 2017, he hands down the first of a couple of executive orders. And this first one suspends for 90 days the entry of Nationals from Iran, Iraq, Libya, Somalia Sudan, Syria and Yemen. And y'all, surely you remember the airport protests at that time? So this executive order came down, it was amazing actually how quickly people were mobilized and how quickly airports became the center of this mobilization. Yeah, so there were protests at the airports almost immediately, and also almost immediately, what quickly follows that first executive order is a legal challenge. So it's quickly challenged in the courts and an injunction preventing the implementation of the order is also quickly in place.

07:05 Michael: Yeah, we've talked about injunctions before, but that's basically a District Court saying, in this case, that the Federal Government can't do what they're trying to do here. They're enjoined from enacting the travel ban...

07:20 Peter: Right. And I have to interject with an anecdote here that I read at the time, which was that the injunction came down, people are protesting at the airports, and TSA and all their cohorts, they're holding people in the airports, and they're still doing it after the injunction comes down maybe 12 hours later, and someone was like, "On whose authority are you doing this?" And one of the agents responded, Donald J. Trump.

[laughter]

07:49 Rhiannon: My god. That's so fucking embarrassing.

07:51 Peter: It really is, it really is. But you have to keep in mind, they've never felt that kinda power before, they've been waiting their whole life to keep Muslims out.

08:00 Rhiannon: Yeah, they were amped up. It finally felt again like that first crystal meth high that they had in high school. [laughter] They were like, "Yes!" [laughter] Okay, so on March 6th, 2017, the administration rescinds their first order and they replace it with a second, which is functionally the same but it removes Iraq from the listed countries, and so new legal challenges again quickly materialize and injunctions are put in place to this second executive order, and the Supreme Court actually partially allows the order, but says that people with connections to the US can still come in and the order expires before it can basically make it up to the court again. So then on September 24th, 2017, Trump issues the final iteration of the travel ban, which puts restrictions on entry into the US by nationals from Chad, Chad is now on the list, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen.

09:05 Peter: Noticing something about that list? They threw a couple of non-Muslim countries in there.

09:11 Michael: Right. [chuckle] We got one of the axis of evil countries there, North Korea...

09:14 Rhiannon: Yeah, harkening back to the great era of George W. Bush...

09:18 Michael: Fascists of yore.

[laughter]

09:24 Rhiannon: So yes, if you're paying attention, the final iteration of the travel ban includes some non-Muslim countries. The reason provided for these restrictions was to support, "Foreign policy, national security and counter-terrorism by excluding inadequately vetted foreign nationals and motivating other nations to improve their vetting practices." So the stated reason is that these countries don't do a good enough job at vetting who is leaving the country.

09:56 Peter: Yeah, if someone's gonna leave your country you gotta check them out, "Are you good enough to go to America?" [laughter]

10:01 Rhiannon: Right, [laughter] yeah, so that's what the purported reason is, but again if you'll notice, they've added some non-Muslim countries to the list and this is almost certainly an effort to anticipate the argument that the order is unconstitutionally targeting Muslims and would be a violation of the First Amendment. So the plaintiffs here, with this iteration, the final iteration of the travel ban, the plaintiffs here challenge the law on a number of grounds but primarily on the basis that, first of all, the ban violates the INA, the Immigration and Nationality Act. And second of all, that the ban violates the Constitution's Establishment Clause, which protects freedom of religion, of course. And we are going to spare you the drudgery of talking about the INA, the Immigration and Nationality Act, because it sucks, and immigration law sucks, and we're gonna focus on the constitutional arguments and the Establishment Clause issue.

11:03 Peter: Absolutely right. If someone asks you if the Robert Court was right on the statutory question here, just ignore it and move on, 'cause it's too boring. And I personally couldn't even make my way through it, I was like, "Let's just go straight to the constitutionality of the Establishment Clause."

11:18 Michael: Like a host on West World when somebody mentions the outside World...

11:21 Peter: Doesn't look like anything to me.

[laughter]

11:24 Michael: Exactly.

11:25 Peter: Alright. So, let's talk about the relevant law a little bit. The Establishment Clause of the First Amendment provides that Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. And there's a dispute between the majority and the dissent in this case about the appropriate standard of review, the dissent says that it's whether a reasonable person would perceive the executive order as being intended to dis-favor Muslims. And the majority can't accept that standard because there's no way that the Trump administration could win on that standard, you'd have to be a moron to think that their intent was anything other than to exclude Muslims. So the majority avoids the application of that more stringent standard, mostly by just disregarding the mountains of evidence of Trump's animus toward Muslims, and then giving enormous amounts of undeserved credence to the clearly fake and pre-textual reasons for the ban, all the national security reasoning that they put in there.

12:29 Peter: So I don't wanna dwell for too long on the standard of review and we've talked about this in the past, it's, they're arbitrary and fake and there's no reason to dig in too deep but the dissent points out that a higher level of scrutiny is appropriate where there is clear evidence of discriminatory motive and to me that almost certainly has to be correct and if the court does not examine a situation where the government has openly fashioned a policy out of a desire to ban Muslims from entering the country more closely than it would any other policy then why even have a higher standard, what's the point of having these different standards if you can't examine more closely someone like Trump going on psychotic rants about Muslims for months on end and you can't just bust out your fucking magnifying glass and take a look at that.

13:21 Peter: So the first thing that the majority opinion does and it's all the usual suspects in the majority, you've got Roberts writing at Alito, Thomas, Gorsuch and Kennedy. One of the last things he did before the Federalist Society walked him out the back [laughter] he told the kids that he was going off to play on a farm so the first thing the decision does is kinda go on and on about the executive branches' discretion in matters of national security. Now we talked about this in the states' rights context and it's the same sort of thing but judges will do this a lot when they're dodging the fundamental question, the question is not does the Executive Branch have broad national security powers the question is whether this order violates the Establishment Clause of the first amendment, no matter how broad the President's authority is with respect to national security you cannot by law violate the First Amendment.

14:19 Peter: So any discussion of the general National Security power is in my view mostly a distraction. The one thing I'll say about it is that sometimes the nature of governing calls for flexibility in these regards, we've talked about this in the speech context but there's a case to be made that the content and context of speech for example, needs to involve the weighing of the government's interest against the value of the speech but that sort of flexibility is in my view much less applicable in this context and the idea that we might have to allow the government some leeway to discriminate against Muslims for national security reasons is I think maybe the exact reason the Establishment Clause is in place to begin with.

15:01 Michael: Yes. [laughter]

15:03 Rhiannon: Yeah, exactly. Yeah, and courts constantly do this, they routinely defer to the President, whoever is the president at the time, they routinely defer to the President on national security issues for the basic reasons that it's a power vested in the Executive Branch and lives are at stake so the President, the Executive Branch is the one best suited to kind of make these tough choices and the court doesn't wanna get in the way. But at the same time the court has been happy to wade into issues of legislative prerogative with massive public health implications, so we talked about the court hampering Obama Cares Medicaid expansion and that clearly impacts the health and safety of tens of thousands, hundreds of thousands, millions of Americans way more than whatever shitty half big travel restrictions came out of the genius brains of Rudy Giuliani and his best friends.

16:00 Peter: Right, I'm not super pacifistic on this stuff but you could literally disarm ISIS with AKs and put them on every American beach and let them run wild for a few months and they would not have anywhere near the death toll of the denial of the Medicaid expansion by the Roberts Court.

16:16 Rhiannon: Right.

16:16 Michael: And in the immigration context the National Security difference it's got a special name, they call it the Plenary Powers Doctrine and it's especially shitty as well, it's got a really particularly racist pedigree, Roberts really leans into it in this case and we'll talk about that a little later but it's especially garbage.

16:36 Rhiannon: Listen, I consider myself like an expert because they let me talk on this podcast and I'm gonna tell you this Plenary Powers Doctrine it's a bad one.

[laughter]

16:45 Michael: Okay, that's right.

16:47 Peter: Yeah, thank you Rhiannon for weighing in on there.

16:50 Rhiannon: Yeah, no problem I got you guys.

16:53 Peter: The next thing the majority does is come up with ways to pretend that the executive order has nothing to do with religion and so the first point they make is that the executive order says nothing about religion which is true it doesn't mention religion and this reminds me of if you have ever been to a restaurant at the shore maybe that says like, "No do-rags, baggy pants, sagging pants, like rap music playing from your phone," and you're like, "Oh shit, I'd rather you just say it," [laughter] it's like this is worse that's what this reminds me like yes, congratulations on figuring out a way to come with an executive order that doesn't expressly say no Muslims so you've managed to pass that hurdle Donald Trump and here's like John Roberts to pat you on the back for it.

17:39 Michael: Right, John Roberts being like, "My head is spinning. Is this the Muslim ban or is it not," he says in the tweets but then it doesn't say Muslim in the executive order.

17:50 Rhiannon: I imagine, I imagine John Roberts like his clerks printed out a copy of the executive order and he's like, he's looking at it upside down [laughter] and his clerks have to be like, "No, Mr. Chief Justice sir, you have to... You need to turn it back around it's upside down actually," and he's like, "Oh, oh my goodness," yeah, he doesn't.

18:09 Peter: Yeah, he does make them call him Mr. Chief Justice. [laughter] So it needs to be said that despite the fact that this ban targets a handful of predominantly Muslim countries as well as a couple of non-Muslim countries, there is genuinely no question that this is the mutated modified version of the original proposal for a general ban on Muslims, right?

18:31 Rhiannon: Right, right.

18:31 Michael: Right.

18:32 Peter: The majority opinion doesn't really question that idea, Rudy Giuliani as Trump's lawyer specifically said on Fox News shortly after the initial executive order that Trump had asked him how to do the Muslim ban legally. Trump was asked in 2016 after he softened the language to be about extreme vetting, why did you do that and he said quote, "people were so upset when I used the word Muslim, oh, you can't use the word Muslim but just remember, remember this, our constitution is great but it doesn't necessarily give us the right to commit suicide okay."

19:05 President D Trump: I'm looking now at territories, people were so upset when I used the word Muslim, oh, you can't use the word Muslim, remember this, our constitution is great but it doesn't necessarily give us the right to commit suicide, okay, now we have a religious... Everybody wants to be protected, and that's great and that's a wonderful part of our Constitution. I view it differently. Why are we committing suicide? Why are we doing it? You know what, I live with our Constitution. I love our Constitution. I cherish our Constitution.

[laughter]

19:36 Rhiannon: God.

19:37 Peter: So look, we dump on the court a lot. We make fun of John Roberts and stuff like that, but sometimes you have to admit, when you're up against a king, you're up against an intellectual titan...

[laughter]

19:52 Peter: This logic is constitutionally airtight. I have nothing bad to say about it. I almost just cancelled this episode when I saw that quote.

[laughter]

20:00 Peter: I was like, "He's got us there."

20:01 Michael: Nothing to say.

20:02 Peter: Yeah, so I do... I feel bad really for being mean to Trump in this episode after just getting owned by his logic right there.

20:10 Rhiannon: Yeah, the brains on this guy.

20:11 Michael: Yeah.

20:12 Rhiannon: Yeah, and so as the dissent points out that Trump was motivated in the first place and all the way through this process by anti-Muslim animus, that's entirely obvious. So not only is it the genesis of the executive order, the sort of blanket Muslim ban, not only is that readily apparent, but Trump had been an out-and-out bigot concerning Muslims for years. Something pretty powerful. I think that Justice Sonia Sotomayor does in dissent is points this out really explicitly. She includes in full a statement directly from Trump's website. It was a statement that was obviously bigoted. She includes that in full in her dissent and notes that the statement remained on the website months into his presidency. And then she also includes a bunch of quotes directly from Trump that he made in interviews, at rallies while he was on the campaign trail about Muslims. Sotomayor also points out, for example, that Trump online is not only on Twitter, has his own anti-Muslim rhetoric, but is also boosting out-and-out actual literal Nazis. So one example is that he re-tweeted three videos by a neo-fascist named Jayda Fransen out over in the UK, and Justice Sotomayor is saying like, "If these are the people you're boosting to your millions of followers online, how is the direct targeted animus at Muslims, how is that not a major part of the ban?" Right?

22:01 Michael: Right. And when you say she's a neo-fascist, she was literally convicted of multiple hate crime offenses. [chuckle]

22:08 Rhiannon: Right, right. And when she's appearing on her favorite radio channel called Radio Aryan, they're... [chuckle]

22:22 Michael: [laughter] Wow.

22:22 Rhiannon: They're interviewing her, and right after the interview, the people at the radio station are reading directly from Mein Kampf. This is not... It's so obvious that it's absurd.

22:32 Michael: It's not subtle.

22:34 Rhiannon: Right, exactly.

22:34 Peter: Yeah, but you gotta keep in mind though, that Trump is... He sees a video or something posted online and his brain has three seconds to react before it's on to the next thing.

[laughter]

22:47 Peter: And he's not gonna find out that she was on Aryan Radio, and when he does find out an hour later because an aide is like, "Everyone's mad at you."

22:55 Rhiannon: Yeah.

22:55 Peter: He's only got three seconds to process that too. It's three seconds per item.

23:00 S26: Right, right.

23:00 Michael: Right.

23:00 Rhiannon: And when the aide rushes up and is like, "Oh, Mr. President, sir, you done fucked up again. People are really mad." He has three chicken nuggets left, and so that's really hard.

[laughter]

23:11 Peter: Right, he's eyeballing...

23:12 Rhiannon: He can't just like, "Drop everything."

23:13 Peter: He's just like side-eyeing his chicken nuggets.

23:15 Rhiannon: Right.

[laughter]

23:17 Peter: His aide is like, "Everyone's furious. You just re-tweeted an open Nazi." And he's just glancing over at the nuggets. He's like...

23:24 Michael: What's his go-to McDonald's order? Isn't it like a Big Mac and two Filet-O-Fish or something like that? [laughter]

23:31 Peter: Oh, that is vile. I don't really support the Filet-O-Fish on its own, but doing it with a burger is so creepy.

[laughter]

23:37 Peter: It's fuckin' awful. Is there a podcast by other people about why every person in the UK is a fascist? What's going on there?

[laughter]

23:49 Rhiannon: I would like to learn about that.

23:51 Peter: It's never like an American that he re-tweets. It's always like one of these freaks. These Katie Hopkins types. I don't...

23:57 Rhiannon: Yes.

23:57 Peter: Who are these people? What's going on? I would like to ban them...

24:00 Rhiannon: What's going on with them? Yeah.

24:01 Peter: Until we can figure it out.

[laughter]

24:06 Rhiannon: Okay. And Justice Sotomayor says, "Trump's animus against Muslims specifically had been evident for years." It wasn't just with this executive order that we're suddenly questioning like, "Maybe this guy has a problem with Muslims, and he's trying to do a Muslim-specific thing." Back in 2011, Trump was publicly questioning then President Barack Obama's religious beliefs and his place of birth, right?

24:36 Michael: Right.

24:37 Rhiannon: Donald Trump made a...

24:37 Peter: And it says something, by the way, I'm sorry to cut you off, but it says something that there's so much animus in this country towards Muslims that Barack Obama had to pretend that he wasn't one.

[laughter]

24:49 Michael: Oh, man. So proud to be a part of this podcast.

24:53 Rhiannon: Yeah, yeah. Yeah, so he was questioning, of course, Barack Obama's birth certificate, saying in a radio interview, "I have no idea if this is bad for him or not, perhaps it could be where it says religion." He's talking about on the birth certificate, "Where it says religion, it might have Muslim. And if you're a Muslim... "

25:15 Peter: Yeah, the classic part of the birth certificate.

[laughter]

25:19 Michael: Yes.

25:20 Peter: Where it says best friend, Osama Bin Laden.

[laughter]

[laughter]

25:25 Rhiannon: You know, throughout 2015, when Donald Trump is on the campaign trail, the anti-Muslim rhetoric is crazy obvious and explicit. He says in a campaign town hall in New Hampshire... Oh my god. Do you guys remember this? A man in the audience shouts out, "We have a problem in this country, it's called Muslims, and we know our current president is one." And Trump responds, "We're gonna be looking at a lot of different things to address this problem. You know a lot of people are saying that and a lot of people are saying that bad things are happening out there. We're gonna be looking at that, and plenty of other things." Later in 2015, he pledges again at a campaign rally to kick out all Syrian refugees, most of whom are Muslim because they might be banding together as a secret army. He says quote...

26:18 Peter: That's true. They might be, you have to admit they might be.

[laughter]

26:21 Michael: You can't rule it out.

26:24 Rhiannon: Right, he says, quote "They could be Isis, I don't know. This could be one of the great tactical ploys of all time. A 200,000 man army, maybe? This could make...

26:33 Peter: It's the ultimate Trojan horse. First, you have a war in your country that completely destroys it, and then you all travel to one country that you subsequently attack from the inside. That's extremely elaborate Trojan horse.

26:46 Rhiannon: Peter it sounds like you and Trump are on the same wavelength because the punchline to that was, quote Trump says, "This could make the Trojan horse look like Peanuts."

[laughter]

27:00 Michael: Somehow I don't think I ever heard that.

27:02 Rhiannon: Yeah.

27:03 Michael: That's incredible.

27:04 Rhiannon: Uh-huh, and so yeah. This stuff is obvious, it's well documented. He was saying it in interviews, he was saying it in rallies. He says, "We're going to ban Muslims from coming in the country" multiple times.

27:19 Peter: Yeah. I mean the real underlying theme in the majority opinion is that they have this like cartoonish level of credulousness towards the administration's claims, right? The Trump Administration is saying that this policy, is not for legal purposes the manifestation of Trump's continuous references to a Muslim ban, but is in fact, a policy necessary for national security reasons. And it's one of the most transparently dishonest positions you could take. Taking it should be the death knell of your argument here but the court treats it as legitimate for what I think is really just no credible reason. And it's important to recognize that this provides a framework moving forward for the Executive Branch to enact discriminatory policy.

28:03 Rhiannon: Exactly.

28:03 Peter: Even if there's clear evidence that the real, kind of driver of a policy, is racial or religious animus as long as it's facially neutral, and there's some ostensible national security justification, you're good to go. Roberts, in his opinion, mentions that this only impacts a small percentage of the Muslim population worldwide. But, it doesn't matter. It doesn't matter...

28:26 Michael: Yeah, no.

28:26 Peter: If you just impacted one guy, if the reason is that he's Muslim, that's a violation of the Establishment Clause. You can't be like, "Well look, this is just Abdul, that's my boy Abdul over there. Sorry Abdul, you're fucked."

[laughter]

28:41 Peter: You can't come here. But because it's just him, that's not a constitutional violation." that doesn't fucking work. If the reason is the religion, then it's unconstitutional. Period.

28:51 Rhiannon: Right and the opinion just like totally glosses over that, does not engage with that argument at all. The very first sentence of the syllabus, I don't know if you guys saw this, the syllabus is a section that kind of summarizes the court's holding at the beginning of published opinions by the Supreme Court. First sentence it says, "In September 2017, the President issued Proclamation number 9645 seeking to improve vetting procedures for foreign nationals traveling to the United States by identifying blah blah blah blah blah."

29:22 Michael: Jesus Christ. Just assuming the conclusion right up.

29:24 Rhiannon: Exactly. They've assumed the conclusion. They've assumed the administration and President Trump's argument for why it's okay. And they're already assuming it in the background facts setting up the case, that we're just trying to improve the immigration vetting procedures, that's it.

29:40 Michael: And look, as extreme and reactionary as this decision is, it's totally consistent with 130 years of Supreme Court precedent.

29:51 Rhiannon: Yes.

29:52 Michael: There's definitely some nerd out there who has had steam pouring out of his ears and his face red because we mentioned the Preliminary Powers Doctrine, and then just cruised past it. 'Cause that's basically been the green light for the government to be racist and fascist in the immigration context. The first case, 1889, was called Chae Chan Ping v. United States, and it was about an immigration law literally called "The Chinese Exclusion Act."

[chuckle]

30:23 Peter: Which by the way, I should say last episode we mentioned that if there's ever a plaintiff that's just like business buzzwords, that's an awful sign. In the late 1800's, if there's a Chinese plaintiff it's gonna be an awful decision. Like you're about to be shocked.

30:39 Michael: Yes, absolutely. And so, dear listener, I will leave it as an exercise for you as to whether or not this law sounds racist in what it might be [laughter] hoping to achieve. [laughter] But in a shocker, the Supreme Court unanimously found that The Chinese Exclusion Act was constitutional, and they did so on, in part, national security grounds and this was sort of the genesis of this whole idea. And it says "To preserve it's independence and give security against foreign aggression encroachment, it's the highest duty of every nation. Entertain these ends nearly all other considerations are to be subordinated." Which is saying, "Fucking throw the Bill of Rights out the window, we're really scared of Chinese people coming and, you know, building the railroad."

[laughter]

31:33 Michael: And so all the justices... Or not all the justices, but a majority of the justices in this case, were also on the court a few years later when it handed down Plessy v. Ferguson, which is one of the most hated, maligned decisions in Supreme Court history, where they said, separate but equal segregation is constitutional, but this case is still good law. [chuckle] And it has been cited many times well into the 1970s, it's still fucking the law of the land, and it's like the sister decision, it's the immigration sister to Plessy. And a more recent example of the court articulating this sort of garbage was human shit stained and known segregationist Chief Justice William Rehnquist in 2003 saying, "This court firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens."

32:25 Rhiannon: Cute.

32:27 Michael: Yeah, they don't need to invoke this doctrine when the government's doing pretty normal okay things, it's when they're doing heinous shit is when...

32:36 Rhiannon: Exactly.

32:37 Michael: [laughter] This is like one of the key cases in this, like is literally deporting legal residents because they were members of the Communist Party in the peak of McCarthyism, and that case was cited by the Supreme Court in Trump v. Hawaii.

32:54 Rhiannon: Perfect.

[laughter]

32:54 Michael: But it's like... And so to those nerds who are upset that we are like or sort of like, "Who cares about plenary powers?" I just wanna say, "Look, if you want to embrace Plessy v. Ferguson's sister case, fucking, you do you. You go off."

33:11 Rhiannon: Right. Go off, I guess.

33:13 Michael: Yeah. You wanna embrace the court embracing McCarthyism, that's fucking great. Stand next to the most maligned racists and fascists in Supreme Court history. That's what this doctrine's about, that's what this case is about.

33:31 Peter: Right, yeah. And if you are some nerd complaining about our podcast, we're looking into the law and we're gonna get you deported. [laughter] We're gonna figure it out. We might not sound like we're actually good at the practice of law, but I have been dedicating dozens of hours to this, we're gonna get all of you sent out of this country to a really bad one, like... France, just off the top of my head. [laughter]

33:52 Rhiannon: Michael, I'm really glad that you're nerdy in this way because I think it's so important, like these... I don't know, I feel like a broken record. I might say this every fucking episode, but the cases...

34:07 Michael: That's good.

34:07 Rhiannon: They don't come out of a vacuum, right? Like the beginning of immigration law in the United States, the reason why we have immigration enforcement mechanisms, all of that comes from a racist history of exclusion of people of color from the United States.

34:23 Michael: Right. Yeah, and look, their hands aren't bound here, and I mean that. There have been other times where the court has been like, "Yeah, of course, the Constitution applies in immigration context." [chuckle] Indefinite detention of deportable aliens or... And the availability of habeas corpus review... There are cases, recent cases, even, where the court has been like shrugged its shoulders at the plenary powers doctrine or ignored it entirely. Justice Sotomayor's dissent is just basically a roadmap of how one of those cases, those decisions could look. This turned out the way it did, because they wanted it to turn out this way.

35:00 Rhiannon: Exactly.

35:02 Peter: So I think we should talk about conservative hypocrisy about the freedom of religion.

35:11 Rhiannon: Yes, let's.

35:11 Michael: Speaking of how they wanted this to turn out.

35:15 Peter: There will almost certainly never come a day when a Muslim President spends an entire presidential campaign talking about the evils of Christianity and immediately bans travel from several Christian countries, but if it does happen, I truly hope John Roberts is alive to see it. [laughter] It would fill my heart with warmth and then whenever, I assume it would be some time in the distant future, but I would like to just peacefully pass away as soon as I witness it. So on the general question of whether the conservatives on the court treat the establishment clause differently depending on the religion in question, we don't need to look further than Masterpiece Cakeshop v. The Colorado Civil Rights Commission. A case...

35:58 Rhiannon: A banger. A true banger.

36:03 Michael: A true banger. And a case decided the same month as Trump v. Hawaii.

36:06 Rhiannon: Perfect.

36:06 Michael: That's unreal.

36:09 Peter: Masterpiece Cakeshop is the gay wedding cake case. The basic issue is whether a cake shop had the right to deny a gay couple service on the basis that barring them from doing so, interfered with their first amendment rights to freedom of religion and to freedom of speech. And the court punted on that issue, and their reason was that the Colorado Civil Rights Commission when evaluating the matter displayed animosity towards the bakers' religious beliefs and the court ordered that the case be...

36:38 Michael: That sounds familiar.

36:40 Peter: Reconsidered without the anti-Christian bias.

36:42 Rhiannon: That's interesting. That the animus towards a religion, it really mattered there. It sounds like it matters.

36:49 Peter: It did.

36:49 Michael: Even when it might otherwise be a facially okay policy...

36:51 Peter: Facially neutral decision. Interesting.

36:55 Michael: The motivating factor might change the way the courts... That's crazy. I would never have expected that.

[laughter]

37:01 Peter: So, for reference, the supposed anti-Christian bias displayed by the commission was when a member made comparisons between the baker's defense and religious defenses of slavery and the Holocaust, which for the record, I think is a reasonable point, just as like a point of reference. It's not that discrimination against gays in public accommodations is as severe as slavery or the Holocaust, it's that nearly every single instance of discrimination or mistreatment of oppressed groups across the western world in general, has been done with some ostensible religious justification, and if you weren't connecting those dots, you're either an idiot or you're one of the ones doing the oppressing.

37:43 Rhiannon: That's right.

37:44 Peter: And I'm not super interested in figuring out which one like Neil Gorsuch is because it doesn't fucking matter.

[laughter]

37:52 Peter: [chuckle] So in that case, the court was able to read the minds of the Colorado Civil Rights Commission and say they were driven by anti-Christian bias from a few stray comments, but here they hide behind this clearly manufactured national security argument. They don't seriously interrogate the motives of the government at all, despite the fact that the statements made by Trump were much more explicit than anything you heard out of anyone in the Colorado Civil Rights Commission, who were just making off-hand comparisons, whereas Trump is literally saying, "We need to keep Muslims out of the country." And then passing a law that looks a bunch like that.

38:29 Rhiannon: Right.

38:29 Michael: Yes. And trying multiple times, there is no denying that they were trying to fit the racist round peg into the race neutral square hole, right? It's like...

38:39 Peter: Right.

38:40 Rhiannon: Yeah, yeah.

38:41 Peter: What if we threw in Venezuelans, does that make it less offensive?

38:43 Rhiannon: Right, right.

38:43 Michael: [laughter] Yeah, exactly.

38:45 Rhiannon: Exactly.

38:45 Peter: By the way, the part, we didn't really get into the details, but the restrictions on Venezuelans and Koreans are nominal as Sotomayor points out, people from North Korea can't readily come here anyway, so it's pretty much just symbolic, and the restriction of the Venezuelans was limited to a few diplomats, like just literally a handful of people.

39:04 Michael: [chuckle] Yes.

39:05 Peter: So it's pure optics.

39:06 Rhiannon: Yeah, that's right. And the opinion spends a good deal of time sort of talking about how there's exceptions, there's certain waivers and there's exceptions to this ban, so if you are from some of these countries and you are trying to get to the United States, it's not totally, it's not 100% of people that are gonna be banned, there are different mechanisms for letting people in, if you're good enough or whatever, and it's an obsession with making a clearly bad thing just, if we can just get it past the end line of legal, if we can just say, "Look, this is law stuff, look, there are mechanisms for exceptions, there are... This is an executive order, this is the plenary powers," right? Like if we can give it this label and sheen of a legitimate exercise of institutional power, then we're good. I'm always left with, but what did the legal label give us, right? So I don't know if it's corny to say or whatever, but slavery was legal, the Holocaust was legal, not even to get into a slippery slope thing, like if we accept this, then 10 years from now, Muslims will be in camps in the United States, I'm not even saying that, I'm saying like, what does it get us as a society, as a country to make this legal? This is bad enough, it's hateful and it's disgusting, and thousands of people the world over were affected by this.

40:34 Michael: And both the iterative process of the several travel bans like working their way through the courts, and ultimately the court's decision, I think kind of functions in a similar way that we described the stop and frisk decision functioning where it's basically like, look, if you wanna be fucking racist, this is just how you have to describe it after the fact, to slip in underneath the court's radar...

41:02 Rhiannon: Yes, that's such a good point of view.

41:04 Michael: Or get us to turn off the security camera or whatever the fucking analogy is that works. That's what it is. It's not about actually preventing unconstitutional conduct, it's about teaching people how to describe their unconstitutional conduct in a way that sounds constitutional enough to pass muster.

41:24 Rhiannon: Yeah, it's about rubber-stamping things, facially, obviously hateful unconstitutional things as legal.

41:32 Peter: Right. And then wagging your fucking finger like this is one of those cases where I think laymen hear about it and are like, "Well, that seems like pretty obviously unconstitutional, right?" And some fucking Federalist Society 3L is like, "Actually, the ban was more limited" and like blah, blah, blah, blah, blah, and it's the sort of thing where you can easily lose the plot, and if you just take a step back...

41:55 Rhiannon: Yes yes.

41:56 Peter: You will see the motivations for what they are, they are readily apparent, as dumb as we think the five conservatives on the court are, I guarantee you they're fucking smart enough to know that this was designed to harm Muslims.

42:08 Rhiannon: Absolutely, yup.

42:10 Peter: Everyone can fucking see it, and you don't need to pretend that there's some technical reason why we need to look past that.

42:17 Michael: Right.

42:18 Peter: One of the big takeaways here to me is that when it comes to state sanctioned discrimination, the conservatives on the court have been very willing to sit idly by as long as the victims are groups that they feel are other, and here, because in the bottom of their hearts, they probably really do believe that Muslims are a security threat, and that there's some link between being Muslim and potential danger to national security, and for over a century before that in countless immigration cases where the humanity of people seeking safety and hope is treated like an afterthought next to some abstruse sense of nationalistic pride. And you can keep that shit in mind the next time they rule that some weirdo insular freak who has spent his entire life on the side of institutional power has the First Amendment right to spit at the feet of a gay person in his donut shop or whatever the fuck.

43:12 Michael: Right, and some federal society douchebag would also tell me that what I'm about to say doesn't actually link up to this case or whatever, but this is also something to remember, like next week when ICE the modern fucking Gestapo commit yet another atrocity and there's no judicial review of any of it, it's the same shit, it's the same legal culture, we're engaging in ethnic cleansing at the border, and it's the same xenophobic racist bullshit that allows it.

43:47 Peter: Right. If you're in the federalist society, you see human suffering, and the first thing you do is look for a fucking technicality. And it's worth noting that every time someone responds to that sort of allegation with like, "Well, they're undocumented" or whatever, the real question is, who provides the fucking documents, 'cause when you say, "Well, you don't have your papers" or whatever it might be, and you're the body that issues the papers and you're using that as the justification to round them up, kick them out, or occasionally, fucking snipe them from across the border, and whatever the latest atrocity of vice is, you couldn't possibly keep up, then it doesn't fucking matter. There's no substantive difference.

44:30 Rhiannon: Yeah, I mean, it also makes me think about the far-reaching consequences many years down the line. So in my world, in the criminal legal world, we are already talking about kids who are kept in cages and what that means for them when they turn 18 and 20 years old and what that means for our criminal legal system, right? And how the law is going to come down hard on them again, for precisely the trauma that was enacted upon them by the government here.

45:00 Michael: And if you think this is limited to "Illegal aliens," you are fucking kidding yourself.

45:08 Peter: Yeah, that's a good point.

45:10 Michael: First of all, there are literally confirmed cases that you can read in any newspaper of citizens being detained for weeks, months because they have Hispanic last names, not to mention that it is known that ICE is going through actual legal residents or naturalized citizens' histories looking for any discrepancy they can use to claw back their legal status and you're kidding yourself. I think I've said you're kidding yourself and keeping your head in the sand a lot, but if you think the courts are gonna give you any respite here, fuck if the Muslim ban, the thing that's literally known as the Muslim ban is okay, then forget about it. And again, this is immigration and its national security, and it's the same shit, and you'll have the same results if you can even get standing to have your case heard.

46:09 Rhiannon: Yeah, yeah.

[music]

46:19 Peter: Alright, next week is Castle Rock The Gonzales, a case with one of the most horrific set of facts you will ever hear in your fucking life and certainly the most disturbing set of facts we've covered so far.

46:35 Rhiannon: Yes.

46:40 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

[music]

47:00 Leon: From the Westwood One Podcast Network.