Norway-Sweden Worshippers
Notes de l’épisode
We picked two immigration decisions from the same day over the transgender-sports case because — Dan’s protests notwithstanding — that’s where the interesting law is. In Mullin v. Doe the Court lets the administration terminate temporary protected status for Haiti and Syria, holding the statute’s no-judicial-review bar swallows the procedural challenges and that the equal-protection claim fails on the merits — with a genuinely odd move: skipping the jurisdictional question the way Steel Co. says you can’t. In Mullin v. Al Otro Lado a fight about asylum-metering collapses onto a single preposition — whether a migrant stopped at the border “arrives in” the United States — and the majority says no. Along the way: brown M&Ms and Van Halen riders, whether Congress can strip review of constitutional claims without turning in a circle and sprinkling salt on the ground, Bolling v. Sharpe as a candidate for the worst decision ever, and why there’s no White Somalia to run a controlled experiment.
Highlights[00:00:28] Opening: hype music, and listening to your own podcast to get in the mood
[00:01:42] Building a live-show rider with Claude Code, and the Van Halen brown-M&Ms test as a safety checklist
[00:03:18] Blogging origin stories — GeoCities, Movable Type, the death of Google Reader, a ransomed domain
[00:06:26] Why we date-stamp episodes; the “too many episodes” complaint
[00:07:27] Today’s slate: two June 25 immigration decisions, Mullin v. Doe and Mullin v. Al Otro Lado, chosen over the trans-sports case
[00:10:37] A digression on the opinion’s broken line spacing on page 1
[00:12:11] Mullin v. Doe setup: TPS, the consultation-and-review procedures, and the “no judicial review of any determination” bar
[00:19:07] Does the bar reach the procedures or just the bottom line? The Court says the whole thing
[00:24:32] Can Congress strip review of constitutional claims — or must it first “turn in a circle and sprinkle salt on the ground”?
[00:25:01] Dan on his and Alan Trammell’s The False Promise of Jurisdiction Stripping
[00:31:42] Steel Co. and jurisdiction-first — and the Court’s strange skip of it on the interim docket, which costs it Gorsuch and Barrett on that Part
[00:38:54] Why leave a hard jurisdictional question unwritten — the stare-decisis dodge and the “do you write on the shadow docket” dilemma
[00:42:17] The multiply-the-probabilities problem (70% × 70%), by way of the Section 3 disqualification argument
[00:44:04] The merits: Trump v. Hawaii redux, and Alito’s very ginger, sanitized recounting of the President’s statements about Haitians
[00:48:21] Arlington Heights, race as a motivating factor, and the burden-shift the Court blends into one step
[00:52:32] The Thomas concurrence: equal protection doesn’t bind the federal government — Bolling v. Sharpe and Primus’s Bolling Alone
[00:59:27] The Kagan dissent: the review bar reaches only the bottom line, so the failure-to-consult claim survives
[01:03:34] Why there’s no perfect test case — no White Somalia — so the burden of proof is the ballgame
[01:04:42] Mullin v. Al Otro Lado: metering, and whether a migrant stopped at the border “arrives in” the United States
[01:08:31] IIRIRA swapped “arrives at” for “arrives in” — did changing the preposition change the meaning?
[01:12:16] Dueling everyday-language examples: the running back, the mailbox, and Sotomayor’s Penn Station / DCA / Golden Gate / movie-theater hypos
[01:15:44] The Chicago Skyway’s “Now arriving in Indiana” signs — “we say no thanks”
[01:18:28] The dissent’s practical stakes: perverse incentives to cross illegally, the SS St. Louis, and the Footnote 5 vs. Footnote 4 spat
[01:20:51] Mootness and the voluntary-cessation exception; Jackson’s advisory-opinion dissent and the Chatrie citation she just missed
[01:24:13] The second Thomas concurrence: the § 1252 injunction bar (Garland v. Aleman Gonzalez) and an inherent Article II power to expel — “milling around”
[01:26:18] The “an uniform rule” indefinite-article tangent; Conor Clarke on how we can’t pronounce anything
[01:28:06] Sign-off: Dan’s two-week vacation, and thanks to the Constitutional Law Institute and SCOTUSblog
Cases
Mullin v. Doe — slip opinion (No. 25-1083, consolidated with Trump v. Miot; TPS termination for Haiti and Syria)
Mullin v. Al Otro Lado — slip opinion (No. 25-5; asylum metering and “arrives in the United States”)
Commentary & articles
Daniel Epps & Alan M. Trammell, “The False Promise of Jurisdiction Stripping” (Columbia L. Rev. 2023) — the argument that jurisdiction stripping is a far weaker tool than advertised
Richard Primus, “Bolling Alone” (Columbia L. Rev. 2004) — after Bolling v. Sharpe, the Court has never actually invalidated federal discrimination against Black plaintiffs at the Court
Henry Monaghan, “Marbury and the Administrative State” (1983) — how a court “says what the law is” when the law tells it to defer