Depends What You Mean By “Shall”

It's immigration day.

By and
55

Oral arguments on Biden’s immigration (in)action push the Supreme Court to decide on the meaning of “shall,” and to wrestle with the upshot of two government branches unwilling to do their jobs. David notices that Loudoun County is gaining national notoriety (again!). Plus: Can legal wins for religious freedom lead to a culture war cool down?

Show Notes:

–David’s Loudoun county aside

–David’s religious freedom aside

Producer note: if you’re ready to get serious about your spicy takes…

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Comments (55)
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  1. Avatar photo
    Asolovay

    On that side note about how “general” is an adjective—my understanding is, originally the military title was an adjective, too! An army had “captains”, who commanded specific groups of soldiers, and it had a “Captain-General”, who commanded all the soldiers, including the other captains.

    But of course, the title has long since been shortened to just “general”, which is a noun.

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  2. Mshroyer

    David: "But what about race-conscious versus racially discriminatory? What are the limits there?"

    I struggle to imagine a school program that's "race-conscious" but not discriminatory. Maybe I'm misunderstanding David. What's a good example?

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  3. AndrewC

    So let’s say the judiciary rules the executive broke the law for not enforcing a law congress wrote with inadequate resources to enforce. What happens next? If the executive is to be punished, couldn’t a hostile (opposite party) legislature just pass underfunded laws to hurt the president’s administration? Is this issue that there is say 60% of the funding needed and Biden administration says they will use that 60% within the discretion granted to enforce which parts they want which differs from Texas’ wants, and then , if that 40% gap is closed, they will fully enforce? Or is the issue that the discretionary enforcement goes outside the allowable discretion granted by congress?

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  4. Chad

    AO really needs to flesh out the Scoville scale and develop the Scotusville Scale... You know the Alito Reaper, Thomasapeno, Kagayenne...

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      love this

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  5. Avatar photo
    Ben Connelly

    David: “I have a problem with honorifics.”

    Translation: “Dammit! This is America! We don’t have no kings or dukes. If someone’s God-given first name ain’t good enough for ‘em, it ain’t my problem!”

    A true American patriot don’t truck with nobility nor titles. Most ‘specially these foreign-soundin’ ones like “solicitor general…”

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  6. Indy Tim

    David, as my go to First Amendment lawyer, what was the Boston Globe's argument in this case?

    https://www.bostonglobe.com/2022/12/13/metro/globe-journalist-forced-testify-bribery-trial-former-harvard-fencing-coach-parent/

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  7. Dhsavidge1

    Oy. The military "general" is also adjectival: general officer. It's entirely appropriate to refer to any "general" as "general" be it military, postmaster, or attorney.

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  9. Teddy Chadwick

    I am an immigration lawyer, getting stuck with the day to day of trying to actually help clients in this broken system. Having previous advised AO on whether the children from The Americans FX show are children, I always perk up when I hear about an immigration case coming.

    I read through the comments thus far, especially focusing on what would fix immigration. As a derivative of what Jonah would say, monocausal solutions to this problem will not actually solve the problem. Which isn't to say each of the suggestions made wouldn't help. Each almost certainly would, though I'm most doubtful on hiring a bunch of immigration judges, because you also need to hire 2-3 times as many clerks and 3-4 times as many ICE attorneys, and by the time it takes to train each of those respective positions, we're now many years down the line. Also, with more judges you get more stark asylum grant/denial differences - see (https://trac.syr.edu/immigration/reports/judge2021/denialrates.html)

    Obviously the border is a huge problem right now, but honestly just one of many. I encourage everyone to go either here (https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/wait-times.html) for visa wait times, and look and how long it takes to get a visa interview from Ciudad Juarez, Mexico, or to go here (https://egov.uscis.gov/processing-times/) and see how long it takes the immigration service to process an application. Some of my favorites from USCIS are I-485s based on refugee status, where it takes the government 3 years to determine if someone already vetted as a refugee and in the US can get permanent residency, or I-918s, where it takes the government 5 years to determine if a victim of a crime who helped the police deserves the ability to stay in the US.

    Or imagine finding your spouse, doing everything "right" (aka following the law) and being told it will be about 5 years before you and your spouse can live together. I'm not talking about living with the results of past offenses or criminal records. I'm referring to the time it now takes for a permanent resident to get their spouse into the U.S. from Mexico, where the I-130 processing time is over 2 years just for the petition approval, and another 2+ years to get the interview for the visa in Mexico. 5 years separated from your new spouse.

    Turning back to the courts, asylum is a disaster because of the truly capricious way asylum is judged (see the above link with asylum grant rates ranging from the 90% grant range for judges all the way to .7% for others). And the random nature actually sort of makes sense, because tell me the difference between these two situations: 1. A man in Russia is fundamentally opposed to the war in Ukraine and says so openly. When the government recruits him into the army (or else he goes to jail), he flees to the U.S. 2. A man in Honduras is fundamentally opposed to the gangs and says so openly. When the gangs recruit him (or else they will kidnap/kill his children), he flees to the U.S. By the technical letter of the law, the first is eligible for asylum and the second is not. But when actual human people (judges) listen to the second situation and how the government/police have no ability or power to stop the gangs, well... grant rates differ.

    There are a thousand other things wrong with the system, but as David and Sarah keep mentioning, this is on Congress. Immigration laws haven't truly been updated in 25 years, funding is too scarce for all the immigration agencies (not just the border), and no one in Congress cares. Sure they say they care about immigrants, or the border, or government accountability, but no one cares. In the meantime everyone suffers. The country suffers from illegal drugs coming over, our communities suffer from being overwhelmed, and most importantly people in this system suffer - not just the immigrants, but their families, friends, and communities trying to work through an unworkable system.

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  10. Avatar photo
    Cthocas

    So David somehow doesn't know what a ghost pepper is, even though it's probably the most famous chili in pop culture, and Sarah thinks Hatch chile, which will set your entire head on fire and permanently scar your gastrointestinal tract at any decent restaurant in Santa Fe, isn't that hot.

    who are these people

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