transcript

Speaker 1:
[00:02] Hey, everyone. This is Leon from Prologue Projects. On this subscriber-only episode of 5-4, Peter and Rhiannon are talking about birthright citizenship. On his very first day of his second term in office, President Trump signed an executive order to end birthright citizenship in the United States, contravening the Fourteenth Amendment and more than a century of jurisprudence.

Speaker 2:
[00:24] This next order relates to the definition of birthright citizenship under the Fourteenth Amendment of the United States?

Speaker 3:
[00:29] Yeah, that's a good one. Birthright. That's a big one.

Speaker 1:
[00:34] The ACLU, along with several other groups and states, challenged the executive order almost immediately. And just a few weeks ago, on April 1st, the Supreme Court heard oral arguments in the case. Because the hosts feel pretty good about the likely outcome here, they figured it was worth talking through the administration's arguments and how the justices responded. This is Five to Four, a podcast about how much the Supreme Court sucks, even if they do seem poised to get this one right.

Speaker 4:
[01:09] Welcome to five-to-four, where we dissect and analyze the Supreme Court cases that have usurped our civil rights, like Donald Trump is trying to usurp the papacy. I'm Peter, and I'm here with Rhiannon.

Speaker 5:
[01:19] Hey, everybody, the Pope, not tough on crime, bad on foreign policy.

Speaker 4:
[01:25] It's gonna stick in my head for so long. I was just telling you, in his first term, it's that image of him looking at the eclipse directly. Now, maybe this time, the Pope is not tough on crime.

Speaker 5:
[01:38] Right, the Pope is not tough on crime is a sentence for the ages.

Speaker 4:
[01:44] Yeah, I don't even have the words for it yet.

Speaker 5:
[01:47] Right, the Pope is not tough on crime. The Pope is bad on foreign policy. Not 48 hours later, posting a photo of himself as Jesus, as Christ, healings. And then, no, I thought it was a doctor in that. It's Looney Tunes, it's Looney Tunesville over there. Five stars on the comedy, though.

Speaker 4:
[02:04] It's so good. I'm ready for a 13,000-word piece about the Pope is not tough on crime. I can't wait. Michael, out this week, just the girls. Just the ladies hanging out on a five-to-four. Before we get going, Rhee, you have to regale everyone with your harrowing tale of bravery.

Speaker 5:
[02:30] Yeah, bravery involving reptiles, specifically snakes. This is a saga that I believe I'm 48 hours out of, and I feel my cortisol and adrenaline only just now regulating. So basically, I had a weekend, a Sunday and a Monday, chock full of venomous coral snakes at my house. So Sunday afternoon, my partner saw a snake in between the exterior siding of my house and the concrete underneath, in like a kind of two-inch space. Out of the corner of his eye sees bright red scales, and he takes a photo. He comes inside. He shows me the picture, and I say, hold up a minute, I don't know if other public school kids learned this across the country, but I certainly did in public school in Texas. There's a handy rhyme. Red touches yellow, kills a fellow. Red touches black, you're okay, Jack. I look at this picture of this snake, and what colors do we have touching but red and yellow? I say, this is a fucking venomous snake outside my house. Here's where things get funny. Donald Trump comedy levels of government and administration in the city of Austin, I call animal control. I say, there's a venomous snake outside my house, please come. They say, we don't deal with wild animals. I said, you only deal with pets?

Speaker 4:
[03:51] Yeah, that's just like if your cat's being a bad boy. Right.

Speaker 5:
[03:55] I said Petra is sitting on her ass right here. I don't need you for Petra.

Speaker 4:
[03:58] We don't deal with wild animals.

Speaker 5:
[03:59] Yeah, Petra and I have beef, obviously. She wants to kill me, but that's between me and her.

Speaker 4:
[04:04] You should have been like, yeah, no, it's my snake. Right.

Speaker 5:
[04:07] Yeah. Oh, it's my venomous snake. It got out, so please come.

Speaker 4:
[04:10] You're rocking my fucking world. Animal control is just for like escaped pets.

Speaker 5:
[04:14] That's right. That's right. They just do pets, they say.

Speaker 4:
[04:16] That's what no state taxes gets you.

Speaker 5:
[04:19] Right. What kind of third party privatization outsourcing do we have here? Animal control tells me we actually generally refer to a private snake wrangler that helps with these kinds of things.

Speaker 4:
[04:29] Yeah. A private equity company bought animal control 10 years ago in Texas. Here we are. Yeah.

Speaker 5:
[04:37] So I call the guy, his name's Harry, and actually, if we're rating five stars to Harry, he's a stand-up guy, he's about 60 years old. He fucking loves snakes. He's excited about snakes. He was thrilled at the opportunity to come get a coral snake from my house. Harry gets there. Look, long story short, Harry gets a coral snake, captures it, puts it in a bucket. This is all humane. He releases it out in the wild later. Harry leaves. I'm saluting Harry. I'm on my knees, so grateful to Harry. Harry leaves. Not two hours later, we go outside. I said, why the fuck is there another coral snake on my doorstep?

Speaker 4:
[05:16] Harry dropped it off two blocks away.

Speaker 5:
[05:20] We call Harry again. Harry says, I'm going to be honest with you guys, that first time when I caught the coral snake is really rare. These guys are shy, they scatter, they're good at hiding. If I come back over there, I highly doubt that I'm going to be able to catch it. Here's what you can do. He gives us some tips for dispersing the coral snakes. Rid my house of the coral snakes.

Speaker 4:
[05:42] Fucking last rights, dude. Get ready. Get ready to die.

Speaker 5:
[05:46] Yeah. Rid my house of the coral snakes. We say, okay, we plug up some holes, we put steel wool in some certain cracks. I don't like steel wool. I've learned, by the way, every fact about a coral snake. All right, we think we're good for the night. I'm leaving my house Monday morning, and I'm being vigilant. I know that I've just seen at least two snakes outside my house. I'm being vigilant. I'm looking at the ground all clear, taking it slow, making sure of where I step. I get to my car, I put my stuff in my car, but I realize, oh, I was being so vigilant that I forgot to lock the door. I got to go back up to the house. I'm walking back up to the house. I am a foot away from my door, and a three-foot-long coral snake shakes at me loud, like making me aware, like, hey, fuck you, don't get any closer. I said, this is my doorstep. I immediately scream, I jump, I get Harry on the phone. I said, Harry, you better get your ass here right now, bro, right now. Harry comes, Harry actually does capture a coral snake. That's fantastic. But Harry's looking at the markings and comparing with our photos. And he says, I think you actually saw a different coral snake, meaning we have two captured and there's a third on the lamb, Bolo coral snake.

Speaker 4:
[07:08] And he said it's like mating season.

Speaker 5:
[07:12] He said it's mating season. The first snake he captured was a female. So that's why he was like, you're in the clear, there's no more snake slut pheromones in the air. I said, you know what, they're still coming back, Harry. So anyways, we plugged up more holes. We've got steel wool literally everywhere around the house. And it rained, so maybe that washed away the snake pheromones. We haven't seen another snake in two days.

Speaker 4:
[07:39] It was just like a snake fuck factory under your house for a bit there, it seems.

Speaker 5:
[07:46] Yeah, she was coming, she was saying, hey, I'm not picky this time of year, okay?

Speaker 4:
[07:53] And as usual, when something like this happens, I have that thought where I'm like, what would it be like to tell our podcast audience that Rhiannon is no longer with us? She got got by a coral snake. Yeah, she was trying to lock her door, and a coral snake just rocked her shit, and she didn't make it. Me and Michael are going to try to make this work.

Speaker 5:
[08:20] Podcast tanks, podcast tanks.

Speaker 4:
[08:22] Honestly, probably. But there's probably a brief spike where people are like, do you hear about this podcast?

Speaker 5:
[08:31] They're grieving their lost co-host.

Speaker 4:
[08:33] One of the co-hosts just got fucking murked by a snake.

Speaker 5:
[08:40] Anyways, I'm feeling a little better. We might be in the clear, but I'll keep everybody posted. Maybe we can post on the Patreon. Maybe we can post some video of the snakes that I saw.

Speaker 4:
[08:51] Yeah, that's for the best. All right. Now, seamless transition. Birthright citizenship. Are you a citizen of the land on which you were born? Yeah. There's a case before the Supreme Court, Trump v Barbara, about birthright citizenship, the idea that you are an American citizen if you are born here. Trump put out an executive order purporting to challenge the concept of birthright citizenship, and it made its way to the Supreme Court, and there was oral argument a couple of weeks back, and it was interesting. It looks like Trump's going to lose. It was a bizarre oral argument. The lead up to this whole situation has been bizarre because two years ago, everyone thought birthright citizenship was a bedrock principle of our law, and all of a sudden, it's being debated at the Supreme Court.

Speaker 5:
[09:51] Yeah. Why take the case at all? It portends something pretty ominous and scary, that the Supreme Court is even taking this case, it seemed like.

Speaker 4:
[10:01] We wanted to talk about the history of birthright citizenship just a little bit. We want to talk about this weird, manufactured debate, this bad faith debate that developed after Trump decided that he was going to challenge birthright citizenship. Then we're going to talk at some length about the insanely weird chaotic oral argument that took place. We've got a bunch of clips. It's interesting. It's funny. It's mostly funny. You're going to hear Trump's Solicitor General, who sounds unlike any man I've ever heard before. That voice. You're going to actually hear some of the conservative justices get mad at him. Why have you done this? Why have you done this to us? So in the hopes that this will not be a case that we have to cover on the show, we're treating this as a premium episode where we get to talk about it and have a little bit of fun because it looks like the good guys are going to win. If it turns out that's wrong, then we're sorry. We're sorry for this episode. That's our bad.

Speaker 5:
[11:06] Yeah. We actually in oral argument hear some very clear conservative skepticism from a couple of the conservative justices at least. Let's get into origins of birthright citizenship, the history here. This is really high level, but I do think it's important to understand because the history, of course, if you're talking to originalists, if you're talking to textualists, if you're talking to people who supposedly interpret the Constitution, the 14th Amendment, in terms of the founders, the drafters' understanding of those amendments, then we have to understand this history, and this is what comes up at the oral argument, right? In lots of different ways. So, we'll start in 1857. Listeners of this podcast have heard of this case, even though we've never done an episode on it. It is dread-scot. This is largely widely regarded as the worst Supreme Court case in history on even conservative lists of worst Supreme Court cases. Like, yeah, they'll say Roe v. Wade, but they also say dread-scot. Now, they have to, even though they might not.

Speaker 4:
[12:15] Yeah, we don't know how they actually feel. Right. But they feel an obligation to be like, it was bad. You have to admit slavery was bad.

Speaker 5:
[12:23] Yes.

Speaker 4:
[12:24] We don't know, again, how they really feel about it.

Speaker 5:
[12:27] Yeah, but they have to say that. And I do think that's important because of the bedrock principles we're talking about here. You know? So 1857, Dred Scott was a man who was born into slavery, but over the course of his life, moved to a free state and sued for his freedom and the freedom of his family. He says, yes, I was formerly enslaved. I am in a free state now where slavery is illegal. And so I am suing for my freedom and not to be considered an enslaved person anymore. The holding of Dred Scott, of course, is Dred Scott, you can't even sue because you are not a citizen of the United States. No one of African descent, no one with African ancestry is a citizen of the United States. That's the holding. Horrific stuff. This Supreme Court case is understood as being a big factor that leads to the Civil War breaking out in just a few years after this holding comes down. This case is also one of the reasons that the Reconstruction Congress, after the Civil War is over, Dred Scott, that holding still on the books, that Reconstruction Congress starts to pass laws, a series of laws, the Civil Rights Acts, and then eventually as part of the Reconstruction Amendments, the 14th Amendment, to establish constitutionally that if you are born in the United States, you are a citizen. Obviously, this applied to formerly enslaved people, but that 14th Amendment, the first words of the 14th Amendment, this is the Citizenship Clause. This is what it says, folks. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. If you are born in the United States, you are a citizen of the United States, period. It's what it says. Of course, the 14th Amendment goes on. It starts with that Citizenship Clause, but then says what citizens and people in the United States get as a result of being in the United States. You get all the full privileges and immunities of citizenship. You get due process, you get equal protection. That's the 14th Amendment.

Speaker 4:
[14:51] The 14th Amendment, the 15th Amendment, together are ending slavery, but with it, they are creating a foundation upon which black equality and citizenship can exist. Part of that is, yes, they're citizens. They're born here. If you're born here, you're good. No fucking funny business. No weird shit about African ancestry or whatever else courts and congresses might try to come up with. We're done with that. You're a citizen. You have equal rights.

Speaker 5:
[15:25] Yeah. Yeah. Period. And so this citizenship clause gets tested in another Supreme Court case that comes at the end of the 1890s, a Supreme Court case called Wong Kim Ark. Now, in the 1880s, Congress passed the Chinese Exclusion Act. This law is actually seen as like one of the birth laws of modern immigration law, and the Chinese Exclusion Act prohibited all immigration of Chinese laborers for at least 10 years. It was barring Chinese immigrant laborers from the United States, and the act also denied Chinese residents who were already in the United States the ability to become citizens. Then also Chinese people traveling in or out of the country were required to carry this certificate that identified their status or risk deportation. Note the creation of the requirement of documentation, establishing your differentness under immigration law. This carries through to today. This is just a time of extreme racism against Chinese people in particular in the US. Politicians were arguing that Chinese people are so different in so many ways that they could never assimilate into American culture. They should be barred from the country and if they're already here, they can't become citizens. All right. But we have the 14th Amendment passed. In 1898, a new Supreme Court case comes down. This is called Wong Kim Ark. The holding of this case says, a child born in the United States of parents of Chinese descent, who at the time of his birth are subjects of the Emperor of China, but have a permanent domicile and residence in the United States and are not employed in any diplomatic or official capacity under the Emperor of China, become at the time of his birth a citizen of the United States by virtue of the first clause of the 14th Amendment of the Constitution.

Speaker 4:
[17:28] Important not only because it's sort of enshrines the obvious on its face meaning of the 14th Amendment, but also it's establishing that this isn't just about freed slaves, right?

Speaker 5:
[17:39] Yeah, exactly.

Speaker 4:
[17:40] It's meant to be taken literally. It applies to all people in the United States.

Speaker 5:
[17:45] Right. Saying that these folks in the United States are subject to the laws of the United States, they're subject to the jurisdiction thereof. Right. They're not loyal to the other country or subject to those laws while they're in the United States. So if you're born here, you're a citizen. That's what the 14th Amendment says. Wong Kim Ark, therefore, has been the main understanding of the Citizenship Clause of the 14th Amendment since 1898. This is, you know, 130 years we're moving in on. Right. And I just want to point out again the context and its significance. A Supreme Court in 1898, think of how fucking racist they are, right? And think of the context of widespread vitriolic racism against Chinese people. That Supreme Court in 1898 is saying, look y'all, the 14th Amendment was just passed and this is what it says.

Speaker 4:
[18:40] Right.

Speaker 5:
[18:40] So just the clarity here and how that's been relied upon and just assumed and understood until 2025.

Speaker 4:
[18:50] So for nearly a century, there is no notable scholarly debate about birthright citizenship. Then in 1985, a couple of scholars wrote a book called Citizenship Without Consent, that made the argument that the 14th Amendment didn't create birthright citizenship. The argument is widely rejected. Scholars said it's basically a return to Dred Scott. It gets no traction, right? This is something one of the authors themselves admitted years later. No one agreed with us on this. Yeah. Fast forward to 2025. Donald Trump hands down an executive order saying that the executive branch will stop recognizing the children of undocumented parents and parents on temporary visas, purporting to functionally end birthright citizenship as we understand it. All of a sudden, a bunch of conservative legal scholars spring into action.

Speaker 5:
[19:46] Yeah. No, there's not a lot of scholarship before this.

Speaker 4:
[19:49] Right.

Speaker 5:
[19:49] But the executive order gets passed and a bunch of law brains start typing.

Speaker 4:
[19:54] Richard Epstein, no relation that I'm aware of, but I'm not like a DNA guy, publishes a blog post making the anti-birthright argument. Then Ilhan Wurman and Randy Barnett, two conservative hacks, publish an op-ed in the New York Times. You see some short law review pieces. Out of nowhere, essentially at the behest of Donald Trump, there's suddenly a scholarly debate about whether the Constitution mandates birthright citizenship. Let's talk just a little bit at a high level about this debate. The argument for birthright citizenship is very simple. The 14th Amendment says all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. It's saying that if you're born here, you're a citizen, with the exception that you must be subject to the jurisdiction of the United States. That's the only qualifier. The traditional understanding of what that means, dating back to the 1800s, is that it's meant to carve out the children of invaders and diplomats. If you're at a fucking embassy or whatever and you have a kid, that child would not be a citizen. But the anti-birthright crowd is trying to say that it's much broader than that. They're trying to take that little caveat and drive a truck through it. That's the whole premise of their argument. Before we get into the details of that argument, it's important to understand how bad faith it is. The timeline gives it away because all of a sudden, there's this scholarly debate that didn't really exist before. But there is more evidence than that. The first time Trump seriously discussed ending birthright citizenship back in 2018, Ilan Wurman said, quote, The children born to illegal immigrants are persons born in the US. And unlike ambassadors and certain Native Americans, they are subject to the jurisdiction thereof. So that's him in 2018 saying the Constitution provides for birthright citizenship. Now, he's one of the most prominent scholars leading the charge against birthright citizenship, right? Just a fucking hack.

Speaker 5:
[22:07] Yeah.

Speaker 4:
[22:08] He's like, well, we started researching the history, and I changed my mind. It's like, okay, dude.

Speaker 5:
[22:12] Yeah.

Speaker 4:
[22:14] You started researching the history with the purpose of coming to a conclusion that would benefit Donald Trump. We're not stupid.

Speaker 5:
[22:20] With the purpose of kissing Donald Trump's ass, with the purpose of being like, daddy Trump, do you see me? Do you like me? That's it.

Speaker 4:
[22:28] So the anti-birthright people say that in order to be subject to the jurisdiction of the United States, you must have allegiance to the United States, and that because illegal immigrants are here in defiance of the law, they don't have that allegiance and therefore their children are not citizens. We'll see the arguments in a little more detail in the oral argument clips we're about to hear, but that is the gist. A couple things right off the bat about this. One simple argument that Kagan brings up at one point is like, you're saying that subject to the jurisdiction of the United States actually means allegiance to the United States, but that's just not what jurisdiction means. You're telling us that the drafters of this provision put this very weird esoteric definition of jurisdiction into the Constitution rather than something clearer, rather than just use the word that you think they meant to use. Another thing here is that their interpretation flips the direction of the clause, meaning that the clause is about how the United States views you, whether you are subject to its jurisdiction. They make it about your allegiance, whether you feel like you have an allegiance to the United States, which is about how you view the United States. They're flipping its direction in this really awkward way. Maybe the biggest point against this argument, the most common sense point against this argument, and this comes up at Oral Argument, is would this really have undone Dred Scott? The answer is probably no. If you're saying, well, citizenship is about your allegiance to the United States, does that actually give the freed slaves citizenship? How? Why? He's got this really convoluted answer to that, but I think the actual answer is, at the very least, it creates this massive gray area. And that doesn't really make sense because we know that the entire purpose of this, right? The primary purpose of this was to give citizenship to freed slaves. And they have come up with this interpretation that wouldn't necessarily do that. Right?

Speaker 5:
[24:36] Exactly. Exactly. It is, in a sense, a return to Dred Scott, right? At least some sort of status quo that preceded the Civil War in terms of citizenship. They also have a wacky argument about what Wong Kim Ark means. But we can get into it.

Speaker 4:
[24:52] Yeah. So let's listen to some clips, shall we? This first one, a very short clip. This is our Solicitor General, yours and mine, just giving his high level thoughts on birthright citizenship. All right?

Speaker 6:
[25:07] Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards the legal aliens who not only violate the immigration laws, but also jump in front of those who follow the rules.

Speaker 4:
[25:28] You're thinking the same thing that I'm thinking. Before RFK, I spent my whole life never hearing anyone talk like this. Now I've heard two guys.

Speaker 5:
[25:38] Now it's two guys?

Speaker 4:
[25:39] They're both in prominent positions in the government. What's going on here? No shade, however you talk, it's however you talk. But why is this the first time I'm hearing this, and why am I hearing it all the time now?

Speaker 5:
[25:56] Yeah, in my late 30s, come on.

Speaker 4:
[25:58] I've heard thousands, possibly millions of people talk, and never like this.

Speaker 5:
[26:05] What if they have the same birthday? And it's like a...

Speaker 4:
[26:11] Your fucking star chart bullshit is coming.

Speaker 5:
[26:15] It's astrology, that's your sign. It's the rising sign, or your sign in Venus, and that gives you your voice.

Speaker 4:
[26:25] Now, Rhee, if you don't mind, I've popped a little link into our shared document. You just visit that link.

Speaker 5:
[26:33] Sure.

Speaker 4:
[26:33] Now, Solicitor General Sauer says that unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. That's an aggressive characterization. It's true that the majority don't have unrestricted birthright citizenship, but the ones that do largely share a character. If you can look at this map and just tell me what you see.

Speaker 5:
[27:06] Okay. So this is basically the entire Western Hemisphere, I would say, save one or two countries in South America with unrestricted birthright citizenship, and those two, maybe three, I'm squinting at, that don't have birthright citizenship in the Western Hemisphere, North, Central and South America, it has restricted birthright citizenship. So some form of birthright citizenship.

Speaker 4:
[27:35] Right. So Sauer is like, look, this is so uncommon in the world, but in fact, nearly the entire New World has unrestricted birthright citizenship. Like, you might just think for a second about why that might be, right? How these countries were established, the dynamics of how they were established, right? He's acting as if we're this anomaly and if we just agree with him, then we will sort of join the majority of nations, but actually we'll make ourselves outliers in the Western hemisphere. That's what would happen.

Speaker 5:
[28:08] Yeah, totally. And this comes up later, but Sauer here, right up top of the argument, this is in his introductory sort of statement about the government's position here, right up top is referring to modern times. The United States in the modern era is some sort of outlier. Later on in the argument, we'll hear a clip where he talks about how, well, illegal immigration is a modern problem.

Speaker 4:
[28:33] Yeah.

Speaker 5:
[28:34] This is not a sound conservative legal argument, because conservatives frame their arguments, in fact, on what history, tradition, original understandings are. Their whole thing is about how, well, it doesn't matter if it's a new problem or not. We go back to, in this case, what the Constitution says.

Speaker 4:
[28:56] Yeah. We'll see John Roberts get mad about this later. But yeah, I think he pisses off the conservatives by so expressly doing this unoriginalist argument.

Speaker 5:
[29:08] Yeah. These conservatives don't live in 2025, 2026. They're living back then.

Speaker 4:
[29:13] This is a big part of his oral argument pitch, though, is like, look, nowadays, anyone can just fly over here on a plane and have a baby, and we need to adjust the Constitution for that, right? Yeah. Which, no. I mean, just as a constitutional matter, if Congress thought that was a big enough problem, you could forbid it in various ways. You can limit immigration in various ways. Yeah, and they do. Yeah. And they do. But he's just like, look, illegal immigrants, they're coming in, and they're having babies. And that's the pitch. That's the constitutional pitch. Very Fox News.

Speaker 5:
[29:47] No, absolutely. And that's what, last thing I want to point out about his argument here. I mean, just in this clip, I mean, number one, the exceptionalization, the idealization of American citizenship, that birthright citizenship to the children of undocumented folks demeans the priceless and profound gift of American citizenship. Do all birthright citizens of US citizen parents look at citizenship as a gift of this priceless, right? It's ridiculous. But then throughout, the powerful pull factor for illegal immigration, the rewarding of illegal aliens. This is also pure racism and a misstatement actually about migration, the reasons for migration, the reasons that the United States has undocumented people here.

Speaker 4:
[30:33] I don't want to get too hung up on this, but it is a big part of his point. We were talking about this, but someone who travels to America to have a child, even this hypothetical illegal immigrant coming to America to have an anchor baby, that person is demonstrating a commitment to their child living in America that is above and beyond the median American.

Speaker 5:
[31:01] Absolutely. Absolutely.

Speaker 4:
[31:02] They should get it like extra, right? They should get bonuses of some kind.

Speaker 5:
[31:07] Yeah. If you are swimming across a river that is snaked with barbed wire.

Speaker 4:
[31:15] Why not?

Speaker 5:
[31:15] Yeah. Get two passports.

Speaker 4:
[31:18] I think they should be able to vote twice. If you cross the Rio Grande and it's even a little bit choppy, two votes when you get here.

Speaker 5:
[31:27] You've done more than most of us to get that citizenship.

Speaker 4:
[31:31] Before we get to the next clips, we should talk about where it seems like the justices are. Obviously, the liberals all on the side of birthright citizenship. The only question is where the conservatives are. I think it falls into a few categories. One is clearly skeptical. That's Gorsuch, Roberts, who's a little irritated again by the anti-originalist arguments, and Barrett, who had a bunch of questions and didn't particularly friendly. Then you have Kavanaugh, who also seems skeptical, but he's a little bit harder to read in my view. Then you have Alito and Thomas.

Speaker 5:
[32:12] The ghouls.

Speaker 4:
[32:13] The ghouls. Although Thomas didn't come across as all in on Trump side either. The only one I really got anti-birthright citizenship vibes from the entire time was Alito, who looked like maybe he was ready to come up with an argument that's like, this is really for freed slaves, right? That's what the original public meaning, as the originalists say, of the 40th Amendment was. That this is really about freed slaves, it doesn't speak to modern immigration like that.

Speaker 5:
[32:45] In this clip that we're about to hear, this is Gorsuch questioning Solicitor General Sauer, and the skepticism is coming through.

Speaker 7:
[32:53] So if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to any immigration laws. There they were. And so why wouldn't we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial?

Speaker 6:
[33:15] I would first cite Wong Kim Ark on that point, because Wong Kim Ark says you're...

Speaker 7:
[33:20] Well, I'm not sure how much you want to rely on Wong Kim Ark.

Speaker 4:
[33:23] Yeah. So Wong Kim Ark is obviously a thorn in the side of the Trump side of this argument, right? Because the Supreme Court pretty plainly ruled against it. But they try to make it work for them by cherry-picking little things here and there about domicile, which is where you live and intend to stay, just like a legal term of art. And they're just cherry-picking little buzzwords here and there from Wong Kim Ark, from what I can understand. Is that your sense too?

Speaker 5:
[33:53] Totally. And I think what Gorsuch is highlighting or like previewing for folks is no, that's not what Wong Kim Ark says. I know what Wong Kim Ark says and it doesn't support your argument, right? Like you hear laughter in that clip, you hear laughter in the crowd, the audience watching the oral arguments, because Gorsuch is like, hmm, are you sure you want to say that?

Speaker 4:
[34:17] But you know who wasn't laughing? Donald Trump, who we haven't mentioned, but he did show up for at least the first half or so of the argument.

Speaker 5:
[34:25] Yeah. I don't think a lot of people remember, don't know if it's ever happened, that a sitting president attends oral arguments on the issue of-

Speaker 4:
[34:33] Yeah, I don't think it's ever happened or almost never.

Speaker 5:
[34:35] His own executive order. Yeah.

Speaker 4:
[34:36] It is funny because it's pretty clearly an attempt to, people are like, he's trying to bully them. I don't know if I would put it like that. I think he was trying to signal to them, like, this is important to me, right?

Speaker 5:
[34:50] Yeah, I think so.

Speaker 4:
[34:51] The stakes are high for me and you should keep that in mind, right? Hard to say if that would work. I think it probably pisses them off because as much as we talk about them being little stooges for conservative politicians, they don't think of themselves like that, right? If you try to remind them, if you try to tell them, hey, you should be doing my bidding here, I think that might piss them off, right?

Speaker 5:
[35:17] Yeah, like you're showing up here to what? Pressure me? The justices aren't going to like this. The chief justice isn't going to like this, you know?

Speaker 4:
[35:24] Right. All right. Next clip. This is the Solicitor General talking about domicile. This is important to his argument. You don't need to get too bogged down. I'll explain why this is sort of odd in a minute.

Speaker 6:
[35:37] The domiciliaries are people who are lawfully present and have an intent to remain permanently. That's a kind of black letter, understanding of domicile. Now, Congress can dictate that certain classes of people, legal entrants and so forth, cannot lawfully, lack the legal capacity to form a legally binding domicile.

Speaker 4:
[35:53] But is that so? He gets into it with Justice Jackson on this point because he's sort of saying that part of the constitutional issue is domicile, which is where you live and intend to stay. Someone who's temporarily in the United States is not domiciled here. They don't intend to stay here. If they have a baby, that baby shouldn't get citizenship.

Speaker 5:
[36:14] Because remember, they're trying to shoehorn an argument about domicile into something that's dispositive about being subject to the jurisdiction of the United States here.

Speaker 4:
[36:24] Right. Exactly. This reveals a contradiction that Jackson hones in on very quickly, which is he says, well, Congress can define what domicile is. Then she's like, hold on, hold on, hold on, because you're saying it's in the Constitution. So how can it be that Congress can change it, right? It's just sort of like this fundamental misunderstanding of what the Constitution is, right? If something is a constitutional principle, Congress can't just change it on a whim with legislation that doesn't actually make sense. So she's like, your argument is sort of incoherent internally, right? So she cooks them on that a little bit.

Speaker 5:
[37:02] Yeah. I also think there are lots of very obvious ways, reasons, that even undocumented people are subject to the jurisdiction of the United States that have nothing to do with a weird argument about domicile, right? That's why Sauer is having to make a weird argument about domicile, because it is so obvious that people in the United States are subject to the jurisdiction thereof. You can be prosecuted by the United States, you pay taxes in the United States, you have to obey laws in the United States, right? You're subject to the jurisdiction of the United States. That's why the government is having to make really sort of outlandish arguments that the justices are very capable of picking apart in the moment here.

Speaker 4:
[37:45] So the next few clips are when things get particularly Fox News brained, because he starts to talk about birth tourism, which is 99.999% insane conspiracy theory and 0.0001% thing that extremely wealthy oligarchs do. But the idea that people come to the country just to give birth, create a little citizen child, and then they bounce or whatever, right? Yeah. Reed, do you want to introduce this clip?

Speaker 5:
[38:19] Yes. So the government mentions this argument, this problem of massive birth tourism. John Roberts asks a question like, how significant a problem is this actually? This is John Sauer's response.

Speaker 6:
[38:35] It's a great question. No one knows for sure. There's a March 9th letter from a number of members of Congress to DHS saying, do we have any information about this? The media reports indicate estimates could be over a million or 1.5 million from the People's Republic of China alone. The congressional report that we cite in our brief talks about certain hotspots, like Russian elites coming to Miami through these birth tourism companies. And here's a fact about it that I think is striking. Media reported as early as 2015 that based on Chinese media reports, there are 500 birth tourism companies in the People's Republic of China, whose business is to bring people here to give birth and return to that nation.

Speaker 4:
[39:19] Harrowing stuff, all made up.

Speaker 5:
[39:22] All made up.

Speaker 4:
[39:23] I tried to look into this and from what I can tell, these are just like wild extrapolations being made by a couple of dipshits.

Speaker 5:
[39:33] Well, he's citing to media reports, actually not studies or surveys. He's citing to media reports, okay?

Speaker 4:
[39:40] He just says that.

Speaker 5:
[39:41] Box news.

Speaker 4:
[39:42] He says there's a March 9th letter from a number of members of Congress to DHS asking for information about this. So we don't have information about this. It's unclear if he means the number of Americans who are the product of Chinese birth tourism or the number of Chinese people here to do birth tourism. But he says could be over a million or 1.5 million, which like you're getting close to the total number of first-generation Chinese people in the United States with that number. So I'm going to go ahead and just eyeball that and say no.

Speaker 5:
[40:21] Exactly. That's that. He says, media reporting cites Chinese media reporting. We're talking about a game of telephone with statistics here. What do you see here but more racism? This assumption that China, this looming threat to the United States, an enemy to the United States is capitalizing on birthright citizenship in a scale of millions of people. And like, okay, Chinese Exclusion Act, right? Like the birth of modern immigration law being a racist immigration ban on Chinese people. Like it's through and through, it's through and through.

Speaker 4:
[41:02] I thought it was interesting for him to focus on Chinese people for that reason, right? Now here's how John Roberts' response to that.

Speaker 3:
[41:10] Having said all that, you do agree that that has no impact on the legal analysis before us?

Speaker 4:
[41:18] Oh, rough, rough. And you can't get the conservatives on something like this. You need to do a little bit of pandering to the conservatives on this shit, right? Yeah. Because what he's saying is like this is just a unique new policy problem, right? Yeah. And we sort of need to think about the Constitution in those terms. He's not framing it right, right? He's not doing like the public meaning would, you know, the public's understanding of the clause in 1868 would be X, Y, and Z. He's not doing that. He's been spending too much time among his Trump world homies who don't give a shit about stuff like that, right?

Speaker 5:
[41:57] Yeah. That's right. That's right. Too many happy hours with Stephen Miller just talking about, you know, gross people from other countries.

Speaker 4:
[42:06] Now, here's John Roberts' devastating final blow in this exchange.

Speaker 3:
[42:11] Well, it certainly wasn't a problem in the 19th century.

Speaker 6:
[42:15] No, but of course, we're in a new world now, as Justice Alito pointed out to you, where eight billion people are one plane ride away from having a child who's a US citizen.

Speaker 3:
[42:23] Well, it's a new world. It's the same Constitution.

Speaker 5:
[42:27] Sick burn. You can't conceive of how sick a burn this is to the conservative legal mind.

Speaker 4:
[42:33] If you are a federalist society pervert, if you are a little originalist nerd, this is the most devastating burn you could ever conceive of. You have forgotten, sir, that the Constitution does not change. Now, John Roberts is stupid, and this is not a good burn, but he's lost him, right? You brought this argument that just doesn't resonate with Roberts at all. And of course, there's interesting layers to this argument, which you don't really need to peel back because who gives a shit about this argument, but like Yeah, yeah. The argument they're making is, look, illegal immigration was not a problem at the time this was written. And so we need to sort of think about this creatively. We need to think, well, if the people drafting this and the people who lived at the time could see the problem we're dealing with now, how would they understand this clause, right?

Speaker 5:
[43:32] And Wong Kim Ark, the Supreme Court case from 1898, is a problem for this argument, right? Because right after the 14th Amendment was passed, Congress passed the Chinese Exclusionary Act, and that case was challenged, and the Supreme Court said no.

Speaker 4:
[43:50] Right.

Speaker 5:
[43:51] So at the time, that was their understanding of what the 14th Amendment went.

Speaker 4:
[43:55] That's the fundamental flaw here is that when the 14th Amendment was passed, illegal immigration wasn't really a concept, right? You could just pop over here, and you were like, here I am, and boom, you're good. You get naturalized and that's that, right? A dynamic that continues for many decades after that, right? Alice Island, right? People just showed up, you get the papers, and you're an American. The most significant attempt by Congress to limit immigration was the Chinese Exclusion Act, right? So the first time that they try to say, no, we are going to make this type of immigration illegal, the Supreme Court quickly steps in and says, that doesn't undo birthright citizenship.

Speaker 5:
[44:36] Yeah.

Speaker 4:
[44:36] So that's Sauer losing John Roberts. Now we are going to listen to him lose Neil Gorsuch. As our listeners probably know, Neil Gorsuch is woke on one issue and one issue alone, and that is the rights of tribal Indians, Indian law. My man, if you gave him the option, might return the land to the Native Americans.

Speaker 5:
[45:02] Yeah.

Speaker 4:
[45:03] If you gave him a button to press, he might do it, right? Here we go. Here is Neil Gorsuch asking Sauer, well, how would this impact Native Americans?

Speaker 7:
[45:13] Do you think Native Americans today are birthright citizens under your test and under your friend's test?

Speaker 6:
[45:20] I think so. I mean, obviously, they've been granted citizenship by statute.

Speaker 7:
[45:23] Put aside the statute. Do you think they're birthright citizens?

Speaker 6:
[45:26] No, I think the clear understanding that everybody agrees in the Congressional debates is that the children of tribal Indians are not birthright citizens.

Speaker 7:
[45:32] I understand that's what they said. But your test is the domicile of the parents. And that would be the test you'd have a supply today, right?

Speaker 6:
[45:42] Yes. Yes. So if a tribal Indian, for example, gives up allegiance to...

Speaker 7:
[45:47] Born today, birthright citizens.

Speaker 6:
[45:51] I think so, on our test. They're lawfully domiciled here. I have to think that through. That's my reaction.

Speaker 7:
[45:58] I'll take the yes.

Speaker 8:
[45:58] That's all right.

Speaker 9:
[46:02] I'm not sure.

Speaker 7:
[46:04] Yeah.

Speaker 5:
[46:04] I'm not sure. I'll have to get back to you on that. Is a wild thing to say at the Supreme Court during your oral argument. But we talked about this when we were preparing, that you are not ready for this exact question from Neil Gorsuch is really wild. Yeah. The way these lawyers prep for oral arguments, not just like they pull in All Nighter or whatever. They spend weeks preparing. They do multiple moots where they'll be in front of people playing in the role of the nine justices, asking questions that they're anticipating from each of the nine justices, that Sauer is not prepared for this, and shrugs and says, I need to get back to you, is so wild.

Speaker 4:
[46:52] It's the one thing you know Gorsuch is going to be asking about.

Speaker 5:
[46:55] Yes.

Speaker 4:
[46:56] I mean, what happens to Native Americans is like one of the gray areas of the 14th Amendment as it is written. They're talking about a statute. There's a statute passed in the 1920s that grants Indians citizenship. And so Gorsuch is saying, put the statute aside. Yeah. Talk to me about the test that you're proposing. Where do they fall? And he can't answer that question. It's wild because the universe of questions posed by the 14th Amendment as it was understood historically, is not that vast. And one of the big ones is what happens to Native Americans. So to not have an answer here, you should have more than an answer. You should have a fully formed theory of what happens.

Speaker 5:
[47:43] Absolutely, yeah. And applying the test that you're proposing, like Gorsuch is saying.

Speaker 4:
[47:48] Now, we also have a clip from one of the libs, Katanji Brown Jackson, asking questions about how this would work in practice.

Speaker 5:
[47:57] Yeah.

Speaker 4:
[47:58] Now, this is the perspective, perhaps, of someone who has given birth and thought for a second, like, well, how would this interact with the actual process of having a child in the United States, right?

Speaker 5:
[48:11] Yeah. Yeah.

Speaker 4:
[48:13] Because if Trump's in office and he can just deport your baby right on the spot, what's the procedure, right? What does this look like? And so she's asking that question, watch this man learn about childbirth in real time. Now, this one's a little bit longer. It's a couple of minutes long, but it's worth listening to.

Speaker 9:
[48:30] How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?

Speaker 6:
[48:49] And I think that's directly addressed in the SSA guidance that's cited in our brief. What SSA says is there's currently a system where, for example, social security numbers are generated based on the birth certificate. They say this can still be for the vast majority of instances, completely transparent. You will still get it because they...

Speaker 9:
[49:04] No, not transparent. I'm just talking about the particulars. Because now you say your rule turns on whether the person intended to stay in the United States. And I think Justice Barrett brought this up. So we're bringing pregnant women in for depositions. What are we doing to figure this out?

Speaker 6:
[49:18] No, as I pointed out earlier, the executive order turns on lawfulness of status. So if you give birth to a baby in the hospital right now, it gets the birth certificate in the system. There's a computer system.

Speaker 9:
[49:29] So there's no opportunity. There's apparently no opportunity then for the person to prove or to say that they actually intended to stay in the United States.

Speaker 6:
[49:37] Absolutely not. The opposite is true. Their opportunity to dispute if they think they were wrongly denied, which would only happen in a tiny minority of cases, is directly addressing that guidance.

Speaker 9:
[49:45] After the fact. After their baby has been denied citizenship, then we can go through the process.

Speaker 6:
[49:50] And the way that, I mean, I'm summarizing, because I'm not an expert on computers, but there's a computer program that currently automatically generates a social security number. SSA says, look, a social security number, non-citizens can have them if they work authorizations, so it doesn't prove citizenship. We'll give you a social security number, provided that the system automatically checks the immigration status of the parents, which they're robust databases for, and then it appears no different to the vast majority of birthing parents.

Speaker 9:
[50:15] Thank you.

Speaker 4:
[50:16] Basically, what he's saying, although he doesn't quite get to the point where he says it in a single sentence, is any parent who gives birth in the United States would be like checked against a database, and their child assigned citizenship or non-citizenship based on that, after which presumably there'd be some sort of dispute resolution process for someone who thought that their child was a citizen, and I'm sure that would go just super smoothly.

Speaker 5:
[50:44] Yeah. Setting aside that ICE is supposedly doing this right now, and look how well that's going.

Speaker 4:
[50:51] I mean, ICE is chomping at the bit to fucking deport babies, dude.

Speaker 5:
[50:55] Exactly. But also, like, their database. Like, US citizens are being picked up right now by ICE. Like, it's obviously not, like, a robust and extremely accurate database. And also, do these enforcement agents, the federal agents that will be enforcing this in hospitals around the country, do they give a shit what the database says?

Speaker 4:
[51:16] I don't know exactly what this database looks like. But I can tell you that there is no database designed to do what he's saying they will use it for.

Speaker 2:
[51:25] Right?

Speaker 4:
[51:25] Which means it's going to be a fucking shit show, even as he sort of understands it. It's just, it's a mess.

Speaker 5:
[51:33] Yeah, it's a total mess. And remember his argument is about domicile. And so Justice Jackson is like, okay, how do you establish domicile then? Some of these folks do intend to live here permanently. If that's your test, then where does that come up?

Speaker 4:
[51:48] Right, and that's all it is. Domicile, as a reminder, is where you reside and intend to reside, right? Yeah, yeah. So it revolves around your intention. So that's why she's like, what are we gonna depose pregnant women and ask them what they intend to do? What the fuck are you talking about?

Speaker 5:
[52:06] It makes absolutely no sense.

Speaker 4:
[52:08] And yeah, I mean, look, you can cut this a hundred different ways to figure out all the different ways in which it doesn't make sense. But the bottom line is she's saying, like, this is a fucking logistical nightmare.

Speaker 5:
[52:21] Yeah, yeah.

Speaker 4:
[52:22] And he's like, no.

Speaker 5:
[52:23] Right, right. No, we can do it. The Social Security Administration said they can do it. But yeah, I think what's important about this clip, and it goes on. There's a longer back and forth between Jackson and Sauer in this part of his argument. But what I think is really important about Jackson putting forth these questions is she is bringing up a problem of scale. What you are proposing is a massive shift, not only in constitutional understandings, but in enforcement of the law. A massive, massive shift that creates, like you said, Peter, a logistical nightmare. How is this supposed to work in reality? Sauer never has a good argument for how that should work.

Speaker 4:
[53:12] Right. Last one, my favorite.

Speaker 5:
[53:15] This is good.

Speaker 4:
[53:16] Sam Alito. Sam has concerns that I would describe as driven by current events. So here is Sam Alito asking a crucial question to the ACLU attorney who is arguing on behalf of birthright citizenship.

Speaker 8:
[53:33] A boy is born here to an Iranian father who has entered the country illegally. That boy is automatically an Iranian national at birth. And he has a duty to provide military service to the Iranian government. Is he not subject to any foreign power?

Speaker 9:
[53:53] Not within the meaning of the 1866 Act, Justice Alito.

Speaker 4:
[53:57] So maybe I'm too biased to be speaking on this. What he's talking about though is there is an interpretation of the subject to the jurisdiction of the United States that the anti-birthright people try to make where they say what it really means is whether it's they're talking about whether you are subject to a foreign power, right? Whether you have like foreign allegiances or whatever. As based on like a kind of clumsy reading of like the historical record. And so he's saying like, isn't someone, you know, if you're if you have one Iranian parent and you're born anywhere else in the world, you're still an Iranian citizen and you have obligations of citizenship technically, right? True of many countries. So aren't they subject to a foreign power? And she's saying no, because what she actually means is like that's not like that's not what subject to the jurisdiction of the United States means, right? They're still subject to the jurisdiction of the United States. You've just sort of reframed it as subject to a foreign power, right?

Speaker 5:
[54:54] Yeah. If you have any sort of obligations or connection to a foreign country. Again, this applies to a ton of people. And taking just a half a step back, Alito's question here, he's talking about a threat of Iranian sleeper cells, right? That Iranians, again, a brown enemy of the United States would come here, take advantage of generous United States birthright citizenship laws to have a child here who would be a United States citizen, but who would genetically be predisposed to opposing the United States and not have any allegiance to the United States. You cannot understand the scale of Fox News poisoning in Sam Alito's brain. You cannot understand the scale of the Islamophobia that is inherent to this question. It is really important. I want listeners to really think about why is it that Chinese and Iranian people are coming up in the conservative mind around-

Speaker 4:
[56:10] Is it a coincidence that the podcast most critical of the Supreme Court happens to have an Iranian American co-host? Is that just a coincidence, folks?

Speaker 5:
[56:22] Feels targeted.

Speaker 4:
[56:24] Feels pretty targeted. No one's asking questions about whatever country. The Strix fruit new lady's coming from. One thing that does not get adequately discussed in oral argument or just generally, is how little sense all of this discussion makes when you realize that you're talking about actual babies, right? KBJ is sort of poking at it a little bit, but all of this shit about like allegiance and so forth is about the parents, right? And everyone agrees that the parents are relevant to some extent. Like everyone agrees that the children of diplomats are not birthright citizens. But in the context of like this allegiance thing, it feels extra bizarre, like because it kind of feels like you're trying to figure out the national allegiance of a literal baby. And I'm not sure that that makes much sense. And you can fucking dress it up however you want, but you are talking about baby allegiance at the end of the day.

Speaker 5:
[57:35] Yeah. Yeah. That I or Peter or anybody else born to two US citizens, somehow that means that we have a special allegiance at birth, right? Sort of inherent to our birth to two parents who are documented in this way according to US law, right? That we're predisposed, we love America and we'll be loyal to America. And the scary other is that other babies born to non-US citizens don't have the allegiance to the United States gene. Like this is like what they're proposing.

Speaker 4:
[58:13] Also, can we just talk briefly about how I've been hearing about sleeper cells for 25 years?

Speaker 5:
[58:20] Yeah.

Speaker 4:
[58:21] Like has there even been one in the United States?

Speaker 5:
[58:23] 9-11 really fucked me and you on the sleeper cells. Yeah.

Speaker 4:
[58:28] Yeah.

Speaker 5:
[58:28] You don't grow up with Iranian ancestry or Palestinian ancestry in the United States without people saying bizarre things to you about sleeper cells.

Speaker 4:
[58:39] And I look, I need a full eight hours, right? I'm doing a lot of sleeping over here.

Speaker 5:
[58:46] I'm a sleepy cell. I'm a sleepy collection of cells in the atomic sense.

Speaker 4:
[58:51] No doubt. Me and you together as co-hosts, a very sleepy cell. You have to be realistic about it. I feel like in Europe, they've been able to like find more like sleeper cells in the sense that like the FBI finds them or whatever. But like, remember after 9-11 when it was all anyone ever fucking talked about? And like have they ever fucking found one? I don't think so. I don't think they've like found a real sleeper cell in the United States.

Speaker 5:
[59:17] It's not a real thing. It's just racist. It's just racist.

Speaker 4:
[59:21] It's just how in criminal law, any two criminals chatting is a conspiracy, right? Any Muslims chatting is a potential sleeper cell for the FBI.

Speaker 5:
[59:32] Exactly. Exactly.

Speaker 4:
[59:33] All right. So a couple of final thoughts here. I mean, so obviously it's unlikely that the court will rule for Trump. And when they do rule against him, we are likely to get another round of media coverage about how this proves that the court is not a partisan body. They're simply interpreting the law, blah, blah, blah. And since that is a direct assault on our podcast thesis, all I will say is that a court that lands on the same side, nine times out of ten, is not an unbiased or nonpartisan court, right?

Speaker 5:
[60:07] Nine point five, nine point six, nine point seven times out of ten.

Speaker 4:
[60:11] And more subtly, one thing that we've said for years, and I think Michael likes to bring up a lot, is a more conservative court does not necessarily mean more wins for conservatives, but that the cases coming to the court will be more conservative, right?

Speaker 5:
[60:27] Yeah.

Speaker 4:
[60:27] So you see these increasingly outrageous cases coming to the court, cases that wouldn't come to the court if it were more liberal, and the court may take the leftmost position in a given case. But as the cases move right, so does that position, so does that leftmost position, right?

Speaker 5:
[60:46] Yeah.

Speaker 4:
[60:46] So you're left with a situation like this, where the court might rule for birthright citizenship. Two years ago, every fucking scholar on earth would have said that was just black letter, dead set, right down the middle, everyone agrees, constitutional law.

Speaker 5:
[61:03] Yeah.

Speaker 4:
[61:03] But it's been brought into question. And then the court says, yeah, no, we agree with that too. You can't give them credit for that, right?

Speaker 5:
[61:11] Yeah.

Speaker 4:
[61:11] So even a court that rules against the conservative side, the same amount as it used to could be more conservative if the cases coming to it are more conservative, right?

Speaker 5:
[61:22] Exactly.

Speaker 4:
[61:23] Saying that this case shows the Roberts Court is not right-wing is like saying that the Warren Court wasn't liberal because they didn't do land back for Native Americans or something, right?

Speaker 5:
[61:33] Yeah, exactly. And I have two thoughts and response. The first is I imagine that a conservative will write this majority opinion. And so even if they rule against the Trump administration, you do wonder, it's really hard to predict, right? But you do wonder if they give a roadmap for undoing birthright citizenship in a different way. Maybe they're just saying, this way of doing it is not okay, is a violation of the Constitution.

Speaker 4:
[62:03] What types of statutory limitations on immigration might be constitutional?

Speaker 5:
[62:06] That's right. They could say, well, Congress could do this. You know? Yeah. What other options or outs are they giving the Trump administration to still sort of pick away at birthright citizenship? And then the second thought I have about the conservatives, you know, it's looking like they will very likely rule against Trump here. I do think this case, the impact that this case would make, I think it's so massive that it is an example of the.01% of cases that actually make at least some, not even all, of the conservatives bulk a little bit. You know, we talked like a month or six weeks ago about the tariffs case, Learning Resources v. Trump, and how the media was going nuts talking about, you know, this really shows judicial independence. The Supreme Court is not always on the side of Trump. David French over at the Times in an op-ed, he said that Learning Resources was the most important case of the last hundred years, which is so wild. And we talked about why that's wild during that episode. But it's actually like, no, this case, the birthright citizenship case, is maybe the most important case of the last hundred years. Think of the massive change. I mean, you're like undoing birthright citizenship, the impact on society, the impact on America. You are changing the country and you're changing the course of the country in history. And what the Trump administration is proposing and trying to say is just kind of like this small scale, manageable thing is wild, is wild. And so I think that, yeah, it's an example maybe of just the offshoot kind of marginal case where what is being proposed by the Trump administration, the conservatives have some real skepticism about.

Speaker 4:
[64:12] Yeah. And at the same time, it shows the ability of Trump and MAGA to shift the overton window and bring bedrock legal principles into question.

Speaker 5:
[64:25] Yeah.

Speaker 4:
[64:26] I mean, one thing we've been talking about is like, why did the court take this case? And I don't know. But in my mind, there are only two realistic reasons. One is that they really wanted to hear this question out. And the other is that they wanted to shoot Trump down on the most ludicrous argument he's ever made, so they could pat themselves on the back for looking non-partisan, right? And neither of those options inspire any trust in the court. But anyway, congrats to all of our listeners who are here doing birth tourism. Have that kid, pop them out. You're good to go. You know, I'm excited to see all of the future 5-4 fans that are going to be American citizens.

Speaker 5:
[65:11] Those 1.5 million anchor babies, you're safe.

Speaker 4:
[65:14] Yeah. I'm going to find out what those companies are in China, and I'm going to invest in them.

Speaker 5:
[65:22] Sounds lucrative.

Speaker 4:
[65:23] Sounds very lucrative. No, of course, none of our fans can afford to have children. It's just a fact. Just a fact about our fans. Next week, we've got a bit of breaking news in the Supreme Court sphere. We're going to be talking about some leaked memos that the New York Times got a hold of, which had some light on the beginnings of the modern shadow docket, have been the talk of the town amongst extreme nerd perverts like us.

Speaker 5:
[66:00] Yeah, leaky faucets, strip-trip-trip, leaky faucets over at the Supreme Court.

Speaker 4:
[66:08] Follow us on social media at 5-4 Pod. Thank you for subscribing to our Patreon. You are our true and real friends. It's not parasocial.

Speaker 10:
[66:19] We'll see you next week. Five to four is presented by Prologue Projects. This episode was produced by Allison Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

Speaker 11:
[66:42] There's a rule, red on yellow could kill a fellow. I got an even better rule. If you see a multicolored snake like this, leave it alone.