Supreme Court Dismisses GOP Immigration Rules Challenge

Sarah and David tackle six rather technical Supreme Court opinions released on Wednesday, including Ysleta ...

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Sarah and David tackle six rather technical Supreme Court opinions released on Wednesday, including Ysleta del Sur Pueblo v. Texas, involving a Native American tribe. Plus: What does the term “mare’s nest” actually mean? Sarah sheds some historical insight and discusses the primary results in South Carolina and Texas with David. They also briefly cover the Southern Baptist Convention and a recent lawsuit in Florida: Does the right to life trump a religious exemption to have an abortion?

Show Notes:

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  1. James Angelichio

    Glad David pushed back on Sarah’s praise for Canada’s gun laws.

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  2. Ben P

    This Echelon Insights survey has come up a couple of times recently, and I don't think either Sarah or David are interpreting the results properly. The margins reported by Echelon for each category are effectively *averaged* across all of the other the other categories. This is very important, and it doesn't seem to have been accounted for in this discussion or the recent one on The Dispatch podcast.

    As an example, a Trump endorsement without local Republican endorsements gives "only a 3% bump", ON AVERAGE, when directly pitted against one of: 1) No endorsements, 2) local Republicans but not Trump, 3) both Trump and local Republicans. That 3% doesn't apply to any one of these other categories. Unfortunately, the summary on Echelon's website doesn't show margins for each possible pairing, but you can get a sense of what's going on when looking at the margins for all categories:

    Trump and local Republicans: +29%
    Trump only: +3%
    Local Republicans only: - 10%
    None of the above: - 22%

    (Notice that these sum to zero)

    Sarah said Trump's advantage was "almost wiped out" when a Trump endorsed candidate was pitted against someone nominated by local Republicans. But wait..: "local Republicans only" polls at -10%! The meager looking +3% for "Trump only" is being brought down by all the times it is pitted against "Trump and local Republicans". It's not gonna be 3% against either of the other categories; it's going to be much bigger. It almost looks like "Trump only" would have a +13% advantage over "local Republicans only". But this can't be determined from the results provided; it would only be true under the strong assumption that the "effect" of each category is the same across all other potential opposition categories. That's not likely, but the Echelon report doesn't go into any more detail.

    On the Democrat side, the -12% for AOC is her average margin against either Sanders, Warren, or Biden/Harris. What is the effect of an AOC endorsement combined with other endorsements? That wasn't one of the questions, so this can't really be compared to the Republican results. What is the margin for an AOC endorsement only vs. a Biden/Harris endorsement only? The report doesn't say, but it will be more than 14%, because Biden/Harris has a 14% victory margin *on average* when pitted against AOC 1/3rd of the time and a candidate who outperforms AOC (Warren or Sanders) 2/3rd of the time.

    Maybe Sarah and David can squeeze more details out of someone at Echelon, or even better invite one on the the show to give a full explanation. It would be really nice to see the margins for individual matchups, rather than margins averaged across all other categories. But, I know Echelon make money by selling this kind of info, so maybe that's been held back for a reason.

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    Ben Connelly

    The answer is, “no, airport baggage handlers are not engaged in interstate commerce.”

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  4. Dan Crow

    You are accurate in noting the dollar amount reflected increase but R admin decreased the availability of services and redirected spending through state governments in block grants. Furthermore, states were given the capacity to retain up to 20% for state projects-(not related to social services). Through that loophole we have witnessed inequitable services offered to families with comparable need.

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    Jacob

    The Southwest Airlines Case is also a BIG DEAL because it's teeing up changes in the Constitutional Standard for Commerce. Thomas is basically applying definition of Commerce consistent with the 'Current of Commerce' doctrine which reigned from 1905 to ~1941. He shifts the basis of analysis from *effect upon* interstate commerce to *conduct involved* with interstate commerce.

    Barry Cushman's observation is pretty good at describing how the doctrine became very liberalized starting in 1934, and pre-1937 the Court already teed up Jones & Laughlin. Schechter Poultry (1935) 9-0 was not interstate Commerce because it was a last mile beyond the movement of goods across state lines. Carter Coal (1936) was not interstate commerce because it was about production of goods before it entered into interstate commerce. But Jones & Laughlin was interstate commerce because the production of steel was reliant upon inputs from other states already contracted for and the steel was intended for sale in other states (i.e., right in the middle of the current of interstate commerce).

    https://ir.lawnet.fordham.edu/flr/vol61/iss1/12/

    If you sift through Saxon, you can also spot lots of little footnotes and offhand 'oh it can include other stuff too' language which is definitely just there to get the opinion to be unanimous.

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  6. AHenry

    While the Florida group is right that the life of the mother takes precedence over the life of the unborn they are conveniently ignoring another Jewish law.

    "The law of the land is the law".

    Unless Florida state law requires us to break one of the Big Three, murder, idolatry, or incest, we should follow the Florida law or move. And in the case of the Big Three we should move.

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    Joe Conquest

    Couple random thought:.
    1. Do you think the DIG of the Arizona case was based on the poor preparation by the AZ AG? Listened to that again, and boy was it a rough one.

    2. Where do you see McGirt 2.0 landing after some hazy tea leaves from the justices in the tribal double jeopardy and bingo cases?

    3. I agree that short shrift was given on the podcast to the HHS decision where they seemed to put Chevron back inside a much smaller box. Definitely could be trending towards zombie status in the near future.

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  8. Mathew A

    David, regarding gun licensing, which other constitutional rights would you be ok with a licensing requirement?

    Somehow I doubt you would be ok with making someone take a free speech safety class before they could post online, or do a podcast.


    More broadly, you both spend a lot of time on how you think the Supreme Court will rule. I think this is very valuable. But you don't spend a lot of time on how/why the Supreme Court is wrong and why. I think this could be valuable.

    After all, you never know, future justices could be listening to this podcast right now.

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    1. Avatar photo
      Seth B

      Joe Conquest's example of a constitutional right that requires licensing is a good one.
      Another: Before a large assembly of people can gather in a public place, one must generally obtain a permit.

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      Joe Conquest

      Individuals need to register to exercise the right to vote, and that is the most fundamental right to self government. And I wish as part of registration for voting, an individual would be required to sign an oath to protect to the Constitution.

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      1. Mathew A

        Register and license are not the same thing. You don't need a license to vote.

        For example, you don't need to take a class on constitutional law to vote.

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          Dan Jett

          The difference is that words (speech), as is frequently noted on this podcast, do not directly cause physical harm or death like a firearm or a motor vehicle. Of course, the difference between a firearm and a motor vehicle is that the "right to drive" is not specifically enumerated in the Bill of Rights. In light of the phrasing, "A well regulated Militia, being necessary to the security of a free State," where "militia" is a stand-in for "qualified citizens" who may be "well-regulated" by a State, if the license must be issued upon meeting objective criteria like "has not been treated or hospitalized for psychiatric conditions in the previous five years" and "has not been convicted of a violent felony ever" and passing a safety course and test, those would probably be reasonable conditions on the right to keep and bear arms. He's just being the lawyer, telling us how he reads the tea leaves. It's a completely plausible take on what could happen in 2A jurisprudence, even with crazy people chanting "No Red Flag!" at John Cornyn over the weekend.

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          1. Mathew A

            Well regulated means trained, not licensed by the state. As should be clear by "shall not be infringed"

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    Matt Y.

    I thought the George v. McDonough case (in bucket #1) was interesting for the breakdown - Gorsuch with Sotomayor and Breyer in dissent, and Barrett had the majority opinion for the other conservatives plus Kagan.

    Mark Joseph Stern noted on Twitter that this was the fourth case this term in which Barrett authored the majority opinion and Gorsuch wrote the dissent. I wouldn't mind some Barrett vs Gorsuch analysis/comparison sometime. But it was also interesting that Barrett was with Gorsuch on Ysleta.

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    Christian Townsend

    Really? A Chevron case that rules against an agency without mentioning Chevron is in bucket one? I mean I know it's not sexy for most people but it at least shows enough ankle for bucket two!!

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