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1. donation option, and like me, become a sustaining member all year round. Thank you.
2. This is Sean Lee, and you're listening to KPFK 90.7 FM Los Angeles,
3. 98.7 FM in Santa Barbara, and worldwide at kpfk.org.
4. Don't cry, don't cry, don't cry, don't cry.
5. Hello and welcome to the Scholar Circle, ScholarCircle.org. I'm Maria Armoudian.
6. In this hour, the latest Supreme Court decisions have enabled the president to strip humanitarian protection from immigrants who came from war-torn countries and other danger zones, even if they are in the country legally.
7. What does this mean for human rights in America?
8. And first, although the U.S. Supreme Court confirmed birthright citizenship, the decision was not unanimous.
9. unanimous. Why did so many members of the court oppose this from the 14th Amendment? Doug Becker
10. explores. I'm Doug Becker. The 14th Amendment of the U.S. Constitution, Section 1, reads as follows.
11. All persons born are naturalized in the United States and subject to the jurisdiction thereof
12. are citizens of the United States and the state wherein they reside. So, all persons born in the
13. U.S. are citizens. This is birthright citizenship. But in Trump versus Barbaro, now the U.S. Supreme
14. Court agreed, but only five of the nine justices seem to agree with this reading of the Constitution.
15. What was the decision of the court in this case? And what does this say about the status of
16. citizenship broadly and specifically birthright citizenship in the U.S.? And also, how does this
17. relates to two other cases that address asylum in the U.S., specifically temporary protective
18. status or TPS, as well as where you can make an asylum claim in the U.S. So on today's show,
19. we're talking about the U.S. on this 250th birthday. What does it mean to be an American?
20. What exactly is the immigration law in the U.S.? And what is asylum law in the U.S.?
21. Our panel today is Naomi Pike.
22. She is Associate Professor of Global Asian Studies in Criminology, Law, and Justice at the University of Illinois, Chicago.
23. She's the author of Bans, Walls, Raids, Sanctuary, Understanding U.S. Immigration for the 21st Century, and Rightlessness, Testimony and Redress in U.S. Prison Camps Since World War II.
24. The latter won the award for Best Book in History by the Association of Asian American Studies.
25. Jack Chin is Distinguished Professor of Law and Director of Clinical Legal Education at
26. UC Davis' School of Law.
27. He's the co-author of Birthright Citizenship, Slave Trade Legislation, and the Origins of
28. Federal Immigration Regulation, and the author of A Nation of White Immigrants, State and
29. Federal Racial Preferences for White Non-Citizens.
30. Hiroshi Motomura is the Susan Westerberg Prager Distinguished Professor of Law at the University of California Los Angeles He the author of Americans in Waiting the long story of immigration and citizenship in the United States and his most
31. recent book is Borders and Belonging Towards a Fair Immigration Policy. And Anna Law, the Herbert
32. Kurtz Chair in Constitutional Rights at CUNY's Brooklyn College. She's the author of The Immigration
33. battle in American courts. And her most recent publication is Migration and the Origins of
34. American Citizenship, African Americans, Native Americans, and Immigrants. Thank you all so much
35. for joining us, such an incredibly distinguished panel. Anna Law, you've just recently written a
36. book all about the origins of citizenship, birthright citizenship. I know you've been
37. following this case. What exactly was this case about? And what did the court rule on birthright
38. citizenship. Thanks for having me on, Doug, and glad to come back. Not glad to come back to discuss
39. immigration, but here we are. Trump issued an executive order basically trying to change the
40. Constitution. In the Constitution's Fourth Amendment, it says that anyone born on U.S. soil
41. is a citizen. The language and the texts are very clear, but Trump tried to change that with an
42. executive order saying that the children are born to people who are not domiciled here,
43. who owe their allegiance elsewhere. So he tries to shift the focus of citizenship to the parents
44. of the child born here, which is not what that amendment says. So the Supreme Court took up the
45. case, the fact that they even took it up is alarming because this is a well-settled question.
46. There's a 123-year precedent binding it. This court has affirmed it over and over again.
47. So on the constitutional question of whether Trump's executive order contradicts the
48. constitution's 14th amendment a slim majority of 5-4 said uh yes trump's executive order is struck
49. down on the related on the related question of does federal law contradict with that does trump's
50. order contradict federal law that count was higher it was 6-3 but still um these are pretty
51. obvious legal questions, and I'll leave others to say more about it.
52. And Jack Chin, one thing that struck me was that President Trump's response was,
53. let's have Congress pass legislation that is going to redefine birthright citizenship. That
54. was his takeaway from this decision. It's in the Constitution. What's the President talking about,
55. having Congress pass a piece of legislation making it legal?
56. President Trump was probably attending to Justice Kavanaugh's concurring dissenting opinion. And Justice Kavanaugh, as Professor Lodges said, thought that the executive order was constitutional under the Constitution, but violated the U.S. code as it's presently written.
57. And so the point of that is that if Congress changed the law, then that would change Justice Kavanaugh's vote.
58. And he would say that it is permissible to deny citizenship to people who have it now.
59. On the one hand, the problem with that is there were five votes for the constitutional decision.
60. five justices a majority created a holding of the Supreme Court which establishes precedent that the freestanding Constitution grants citizenship to everyone born in the United States other than children of ambassadors or foreign
61. diplomats or enemy troops in hostile occupation. But Vice President J.D. Vance explained that
62. there's a practical workaround for that, and that is we just need to appoint one more justice
63. to replace Chief Justice Roberts or Justice Barrett, Kavanaugh, Sotomayor, sorry, Kagan, Sotomayor, or Jackson.
64. And then there would only be four votes for the constitutional holding.
65. So basically, if you take President Trump's point and Vice President Vance's point together,
66. they're saying this may be the holding of the Supreme Court today, but precedent isn't really
67. very important because we can always change the precedent by changing the composition of the
68. court. So today, any such law would be struck down by five justices of the Supreme Court,
69. but their view is that the court is completely open to rejecting precedent that it doesn't
70. agree with. Yeah, Hiroshi, when I saw the reporting on this, I was actually struck
71. by how close the court seemed to come to overturning a birthright citizenship. That
72. kind of alarmed me. Did you have the same response? Yeah, I mean, I have a number of responses, but I
73. mean, that's probably the most fundamental one. You know, I have to say that this was a moment of
74. profound relief, but it's certainly not a moment of victory. And there are multiple reasons for
75. that, but this is way closer than it should have been. I think you said something to that effect
76. in the intro. It's hard to feel triumph after avoiding catastrophe. If it had gone the other
77. way, we would have reversed well over 100 years, maybe 160 years of American history. It would be
78. a return to the infamous decision of Dred Scott excluding African Americans from citizenship. I
79. I mean, not in literal terms, but I think it would have been that profound.
80. And so I think it's much closer than I thought it would be.
81. And the sense, reflective vision of this country that would undo most of what I would think is the halting progress that this country has made,
82. certainly over the last century or so, and it would, I think, as you effectively said, it would rewrite the Constitution in practical effect.
83. And Naomi, one of the themes here is that there's been a consistency, you know, with respect to birthright citizenship.
84. And this seemed to be a break with that.
85. But how accurate is that as a description in that we're looking at a different sort of a different legal framework,
86. different attitudes about immigration or how much is this questioning about who is a citizen and how birthright citizenship fits into that?
87. How much of that has been just a part of the historical narrative of the United States?
88. Yeah, thanks so much for having us and bringing us together. And thanks so much for this question.
89. I think that Ketanji Brown Jackson's affirmation of Trump v. Barber really
90. frames your question very well, because she really grounds her concurrence in the reconstruction,
91. right in the historical context of the passage of the fourth and 14th Amendment.
92. And she really leans into the fact that the 14th Amendment did not just happen It was not just given that it was fought for that it was organized for by emancipated freed Black people and that it is the product of the freedom dreams of Black people in the wake of emancipation in the wake of the Civil War and when they were really trying to build a new kind of society
93. And if we really think about it, you know, this she keeps referring to it as like the second moment, right?
94. The second moment of the birth of our nation. Right.
95. And so it is and she talks about how those freedom dreams of black people were universal, that they were not just about I need to secure my franchise and my citizenship for myself and my own people.
96. But that it was very much, there was a cognizance that if we do not make this universal for everyone who is born in this country, then our own franchise, our own citizenship will always be at risk.
97. Right. And so I think that's a very particular moment in U.S. history, the reconstruction that was basically abandoned by the federal government that was allowed to be pulled back through revanchist policy, through revanchist laws like the Black Codes, through racist terrorism waged by the by the Klan.
98. Right. And so it was this very short moment in which freed black people were able to move the country into a different kind of state.
99. Right. And a different kind of vision of who we could be as a country and who got to be a full member of this country.
100. That still has never been fully, fully realized. That's why we have the second reconstruction in the 1960s and so on.
101. And it still hasn't been realized.
102. And I think one of the themes that I hear from my colleagues in this conversation is that the vision of people like Kavanaugh, of Trump, of J.D. Vance is to reverse who gets to be a part of this country to be for the reconstruction.
103. Their vision of who gets to be a United States citizen explicitly excludes all the people that freed Black people in that moment were envisioning for a new kind of United States of America.
104. They really want to bring this back to the origins of the United States as a white patriarchal kind of ethnostate, like a white state, a white nation state.
105. And so I think that and, you know, just to kind of reiterate some of the points that have already been raised.
106. Yes, this is a great relief, but this is not a victory and we cannot get complacent.
107. We have to keep on fighting and extending the legacy of those free black people in the wake of civil war.
108. You listen to Scholar Circle, ScholarCircle.org. I'm Doug Becker.
109. We're talking about birthright citizenship, the most recent Supreme Court decisions.
110. Our guests today are Naomi Pike of the University of Illinois, Chicago, Jack Chin from the University of California, Davis, Roshi Motomura of the University of California at Los Angeles at UCLA, and Anna Law from CUNY, Brooklyn College.
111. And so, Anna, one of the things that has struck me is a lot of the discourse at the court centers around this concept of originalism.
112. What was the original intent?
113. And because Naomi just raised the question with Katowice Brown Jackson, I find Justice Jackson's approach kind of fascinating when she says,
114. well, if you look at the originalism of the 14th Amendment, for example, it's pretty clear what this was meant to address.
115. And so trying to alter it for contemporary purposes is kind of turning this originalism, which tends to be conservative,
116. on the courts, kind of turning it on its head. Is that fair to say that any originalist
117. interpretation of this should have been a pretty clear answer?
118. So originalism is the method of interpretation that is the favorite method for the court
119. supermajority. And it purports to look at what the framers and the founding generation
120. meant. And since we're looking at the 14th Amendment, we should be looking at the 14th
121. Amendment framers. But some conservatives say, no, we're looking at the framers in 1788. Well,
122. they're different moments of founding. And we should be looking at the 14th Amendment. And
123. the legislative intent was very clear. The problem is, as I was reading all those decisions,
124. the dissents are playing fast and loose with history there is a right or wrong way the craft
125. of history requires it doesn't require a phd in history but it does require a lot of reading
126. in primary and secondary sources what history is not and what originalism has become
127. is cherry picking historical data points that support your argument, which is, that's not what
128. historians do. And so if you look at the dissents, there are huge mountains of reconstruction history
129. that they don't cite, that Justice Jackson cites, and that the majority opinion cites. Justice
130. Jackson cites the most historians. That is who they should be consulting. If you purport to be
131. an originalist, that's who you should be citing. Not the handful of law professors that the dissent
132. cited as Thomas claimed it was a groundswell of new scholarship. Groundswell. These are five guys,
133. law professors, who discovered birthright citizenship and have been studying it for
134. two minutes. So there's a mountain of historical research out there that they didn't even,
135. the dissents just didn't even consult. And with that, you know, in mind, one of the things that
136. Justice Thomas raised, Jack, I'll address this to you, is the, this was meant to address the
137. citizenship of former slaves. The Dred Scott case was all about whether or not slaves born in the
138. United States had standing, you know, were they citizens, could they bring cases, and they wanted
139. to basically overturn Dred Scott with a constitutional amendment. But that's actually
140. not how it's been interpreted historically, right? And in particular, you know, I think of
141. who was one Kim Arp and what did that say about who birthright citizenship applies to?
142. Yeah, so Dred Scott was about the citizenship status of both enslaved persons and free African
143. Americans living in the United States. And Chief Justice Taney said no person of African ancestry
144. by birth or naturalization could ever be a U.S. citizen. And that certainly was one of the goals
145. of the Civil Rights Act of 1866 and the Citizenship Clause of the 14th Amendment to overrule that.
146. It's certainly the immediate practical problem that the Citizenship Clause was designed to
147. address was the status of the formerly enslaved persons and free African Americans in the United
148. But it also very clear that Congress and the ratifying states decided not to limit the scope of the citizenship clause to the particular factual scenario that gave rise to the need for the legislation
149. They there was criticism from opponents of the 14th Amendment. Is this going to apply to to Chinese? Is this going to apply to children of of the group of people that we now call Roma or Romani people?
150. And the answer was yes. It was clearly intended to be universal in its application to create a bright line, easily administrable rule.
151. Anybody born here who's subject to this jurisdiction is going to be a U.S. citizen.
152. And on the other hand, the Barbara case, like Dred Scott, like the Wong Kim Ark case that you mentioned, shows that there's always been a contest over whether citizenship should be race neutral.
153. And of course, for much of U.S. history, Dred Scott and the Naturalization Act of 1790, limited naturalization to free white people, that was in effect until 1952.
154. There have often been racial qualifications for citizenship.
155. And the Wong Kim Ark case, just like Trump versus Barbara, was a test case brought by the presidential administration, then in power, to say that the citizenship clause did not apply to the children of Chinese parents born in the United States.
156. And the argument was, you know, supported by certain grounds of public policy, because when the Wong Kim Ark case was decided in 1898, Chinese people were prohibited from immigrating to the country.
157. Chinese people were prohibited from naturalizing.
158. And so there was a pretty clear federal policy of not allowing this group of nonwhite people to come to the United States.
159. So why, the administration asked, should their children be allowed to be citizens? And the Supreme Court, 7 to 2, there were dissents in Wong Kim Ark, just like there were dissents in Trump versus Barbara, said that the citizenship clause applies to without regard to race.
160. and one of the reasons a lot of reasons for that one of them was something that the court in trump
161. versus barbara missed which it really i'm sorry the dissenters in trump versus barbara really
162. didn't focus on which is the citizenship clause as you quoted it doug applies on whether the person
163. born is subject to the jurisdiction uh it's about the child it's not about the political status of
164. the parents, at least textually. It's about whether the person born is subject to the jurisdiction.
165. So that was one thing that was significant. And another thing that the court pointed out was,
166. you know, if we look at this political status of the parents, and for example, whether the parents
167. are citizens of a foreign land. Then many children of Irish, Scottish, English, German,
168. French parents born in the United States, the majority said in 1K Mark, they wouldn't be
169. citizens if only children of citizens are citizens if born in the United States. And that was an
170. outcome that nobody wanted or anticipated another thing was the
171. argument of the dissenters in Wong Kim are just like here is well what if the children have political obligations to some other land What if some other country grants them citizenship Then
172. they're not really fully American, are they? And the dissent in the majority in Wong Kim Ark had
173. a pretty strong response to that too, which is we can't allow foreign law to deny citizenship to
174. people born in the U.S. If we did, then maybe Donald Trump wouldn't be a citizen because his
175. mother was a Scotswoman. And maybe certainly Scotland has the right to grant citizenship
176. to children of its own nationals born in foreign countries. And so maybe Donald Trump would be a
177. citizen of Scotland, even though born in Queens? Would it make sense to deny U.S. citizenship based
178. on foreign law? 1K Mark said, no, I think that answer is still sound. Two huge points there. One
179. is that citizenship is determined by the person, not his or her parents. And that birthright
180. citizenship seems to be that principle very much seems to be enshrined in law, as well as if even
181. if you're a citizen of another country, that doesn't necessarily mean you don't have American
182. citizenship. But one thing that also struck me with all this, and Naomi, I'm going to direct
183. this one to you first, is a lot of times with this question of citizenship, it seems like,
184. you know, the immigration discourses in the U.S., most Americans think of that as largely driven by
185. the southern border, largely driven by Hispanics. But what we're showing here historically,
186. and actually the president's response to this decision was quite anti-Asian when he says,
187. that this is a victory for Chinese Premier Xi and the discussion of wealthy Chinese women coming here to give birth.
188. Was it birthright tourism? I think was the term that they had used.
189. So first of all, how much has the immigration debate really been quite a bit centered on Asian Americans?
190. More so even than we frequently recognize historically.
191. And that that's the moment that we're really directing here.
192. that we really need to understand that the implications are a bit more complex,
193. and we absolutely need to remember the implications for the Asian American community.
194. Thanks so much for that question. So if we really think about it, Asian migrants to the United
195. States are the OG illegal aliens. So if we think about the history of immigration exclusion,
196. it really does start targeting Asian migrants, particularly Chinese migrants off the West Coast.
197. And that is, you know, the Chinese Exclusion Acts, including the Page Law Act,
198. were directed not only at Chinese people, but also were inflected by race and by labor relations.
199. Right. So it was a tool of labor relations.
200. But because it was our kind of first exclusionary federal acts were racist, they were patriarchal and sexist, and they were also very capitalist as a tool of labor management.
201. And so I think going back to those histories, it's really important because Asian Americans and Asian migrants, we do have the historical memory that can inform what is happening today.
202. And I think it is super important for Asian immigrants or Asian communities in the United
203. States to have that kind of deep historical understanding of how we got here how our efforts have shaped immigration policy and law and citizenship law over time And also the ways that we have not always worked in solidarity with other excluded minority groups
204. Right. So I'm thinking of like the Bhagat Singh Thind case or the Ozawa case,
205. where you had two Asian immigrants who were contesting their racialized exclusion from citizenship
206. by claiming whiteness, right?
207. Rather than working in solidarity, for example,
208. with Black citizens, right?
209. Why not claim Blackness?
210. Because they were also able to be citizens at that time, right?
211. But thinking about,
212. and this is not exclusive to Asian immigrants at all, right?
213. Like other kinds of white immigrants or European immigrants,
214. other kinds of racialized immigrants
215. from colonized parts of the world
216. have also used this as a strategy
217. because it's a strategy that has worked for certain kinds of people. But I think that because
218. the United States has, you know, a racist immigration law, a racist citizenship law,
219. like referring back to that 1790 Naturalization Act, this has been a well-worn strategy by people
220. wanting inclusion into the United States and claiming whiteness or claiming the benefits of
221. whiteness in order to achieve that goal. And I think this distinguishes that strategy from
222. the 14th Amendment, right, which was about having a universalist, inclusionary vision of an
223. entirely reformed and re-envisioned United States of America. And so I think that I also want to
224. kind of bring this to some of the other cases that we're going to talk about, but in the same way
225. that a lot of the immigration debate is so focused on Latin American immigration, where Asian
226. migrants are not always seen as part of the conversation in the same way. I also think that
227. we really need to center our attention on the history of Black migration to the United States
228. and the ways in which our most vicious, exclusionary policing tactics and law and policy
229. have really been worked out against Black migrants. And we also have to remember that Black
230. migrants, in terms of the rate of arrest, detention, and deportation, they have the highest rate.
231. They don't have the highest numbers, but they have the highest rate. And so I think I want to make
232. sure that we're thinking about relationally across these different kinds of migrant groups.
233. Roshi, I'd like to ask that as well. And I mean, you already raised some really interesting
234. questions about the way these discourses on citizenship. And then, of course, I was going
235. to talk about things like asylum status. How much was this case that was driven by race and
236. particularly the history of these cases driven by it's not necessarily anti-immigrant. It depends
237. where the immigrants coming from. Well, I think race is foundational, has been foundational to
238. what I guess we're calling immigration policy. But, you know, in a way, the word immigration
239. in that context or even citizenship policy narrows the debate too much, right? I mean,
240. I think that this is about people. It's about who belongs, who has privilege, who's subordinated,
241. and who's part of the national future and who is not. And so you can go back to China's exclusion,
242. but I think you can go back to Dred Scott, as Jack mentioned, but I think you have to go back
243. to 1619 and slavery and the history of labor and labor exploitation in this country. And so that's
244. That's just kind of what the arc looks like.
245. Another thing I'll say in response is that,
246. the racism that has been, I think,
247. Part of the bedrock of American immigration law history has taken many forms.
248. It began, well, it didn't just begin, but as I just said, but in 1790, you know, we have a law
249. that says that only free white persons, that's what's the language of the statute, can become
250. U.S. citizens. And the racism takes different forms, right? I mean, you have, it was only in
251. 1952 that racial bars to naturalization were removed from the federal code.
252. But you have Asian exclusion, you have a system that prevails in the statute until 1965 that's
253. heavily driven by race, or you could say it's based not only on race, but on the pseudoscience
254. eugenics that also had a significant supportive impact on Hitler's citizenship policies.
255. And I would say that after 1965, there's the veneer of having overcome racism.
256. But I think, as Naomi suggests, and I think very correctly so, that the way the law is
257. enforced impacts people based on race.
258. We have a policy now where the president has suspended refugee admissions, except for white South Africans. And then, of course, there are many things we can talk about in some other contexts that unify the Trump administration policy. It's saying some people belong, some people don't, and race has a very central element to that.
259. And, you know, I think that to go back to something Naomi just said, and maybe to just add to it a bit, I think that one of the reasons that people feel they came the right way, or they feel that, you know, that the law has improved or the policy has improved in a way that represents their inclusion.
260. I think in many ways that the fact that a lot of European Americans feel okay now and included, and I would say, you know, sometimes feel the freedom to go after others as others.
261. You know, they were targeted at other times.
262. You know, the lynchings of Italian Americans because they're Italians is something that's often forgotten.
263. But that's unfortunately been the scope of American history.
264. And let me just say one other thing, which is, it goes back a little bit to what Jack was saying about the president and vice president's response.
265. It's tempting to look at this case as a court ruling, and I guess it is.
266. And it's tempting to think it's about immigration law, and it is.
267. And it's tempting to think it's about the Constitution, and it is.
268. but the context really matters here.
269. And I think we've been talking today
270. about the context of history,
271. but this isn't just a legal ruling, right?
272. This is, I think one of the reasons
273. why the president came out immediately
274. or almost immediately and said,
275. well, we just have Congress,
276. you know, look at this.
277. Part of it is, you know,
278. we can change the court
279. in the way that Jack suggested,
280. but it's never,
281. I don't think it's ever been about
282. just winning this case or losing this case.
283. It's to send a message.
284. The message is some people belong.
285. Some people don't.
286. Race is very central to that.
287. You know, it didn't surprise me at all that the president comes out and says, well, we
288. can get around this.
289. It's not that different, actually, from saying, oh, they're an Obama judge.
290. We don't have to listen to them.
291. It's an illegitimate decision.
292. We don't have to obey it.
293. That kind of stuff.
294. And so in looking at that context I think that it partly the dimension of history And it probably the dimension of what we actually talking about We talking about a moment in not just in the law in any narrow sense but in national
295. history in a more political context.
296. And I think if you lose sight of that, you kind of fall into the trap of, maybe it's
297. the trap of legal education, which is thinking that the legal rule is what matters.
298. The context is what matters.
299. very important statement, may not be the law that matters, but the context matters, I think is a
300. great way to contemplate it as we go through the break. When we come back, the court has given the
301. president power to strip temporary protective status for asylum seekers and refugees who are
302. in the country legally. What might that mean for those who have gone to the U.S. for refuge?
303. What does it mean for human rights and humanitarianism in the United States?
304. Stay with us.
305. This is the Scholar Circle.
306. scholarcircle.org. I'm Maria Armoudian. The United States has provided legal asylum to vulnerable
307. people from all over the world, including 350,000 Haitians and 6,000 Syrians. But now that the
308. Supreme Court has handed Donald Trump the capacity to strip their protective status,
309. what will be their future and the future of the United States? And how has U.S. policy history
310. played into these court decisions?
311. Doug Becker explores.
312. I'm Doug Becker.
313. Our guests today are Naomi Pink.
314. She is from the University of Illinois, Chicago.
315. Jack Chin, he's from UC Davis School of Law.
316. Hiroshi Motomaru from UCLA's School of Law
317. and Anna Law from CUNY Brooklyn College.
318. So Jack, I'll lead with you on this one.
319. Let's talk about the temporary protective status,
320. the TPS case.
321. What is TPS and what was decided by the court?
322. Temporary protected status is a sort of quasi-permission, a temporary permission to remain in the United States for people from certain countries that have experienced some sort of natural political, military disaster or trauma or problem.
323. And so basically, for countries like Haiti that experienced an earthquake or the Ukraine that experienced an invasion from Russia, TPS allows people who are in the United States, let's say, as on a student visa or a visitor visa or in some other status or no status at all.
324. It allows them to remain for a period of time while the issues in their country settle down.
325. TPS is a category of protection that was created in a congressional statute, and it goes on for a period of time.
326. And it comes into existence based on a determination by the president.
327. and the president can extend the determination when it runs out And the maximum period I believe for an initial determination is 18 months and they can extend it or terminate it And so what the case was about is that the current
328. administration has been declining to extend TPS in every case where the prior designation
329. expired. And that was challenged in court. And the thing is that the extension or termination
330. of temporary protected status is supposed to be based on an evaluation of country conditions.
331. And the Secretary of Homeland Security is supposed to talk with other cabinet officials
332. who have information about, you know, the pandemic or the famine or the war or whatever other
333. circumstance warranted TPS and make a determination about whether it's safe for those people to go
334. home or not. And there is a provision in the federal statute that says that the determination,
335. the ultimate determination by the Secretary of Homeland Security to extend or terminate TPS is not subject to judicial review.
336. And the question is whether the other steps required by the statute were subject to judicial review.
337. If, for example, as appeared to be the case, the Secretary of Homeland Security's consultation with other departments didn't really happen.
338. Was that something that could be challenged in court? And the other question was, what if, again, as appeared to be the case, the determination was based on a constitutional violation? Did the prohibition of judicial review apply to that?
339. And the court said, with regard to non-constitutional claims, the determination, whatever it was, simply was not subject to judicial review, period.
340. The majority said through Justice Alito, maybe constitutional claims can be raised in court, but assuming that they can, the evidence that the termination of TPS with regard to Haitians was based on race was insufficiently supported.
341. and therefore, even if it could be raised, it was unlikely to be successful.
342. And so a temporary stay of the termination of TPS for Haitians was unwarranted.
343. Hiroshi, I'll ask you, and somebody else wants to jump in too, I'm happy with this.
344. I'm familiar with the international law, the Refugee Convention, which requires that states,
345. if they're receiving refugees, fleeing a conflict zone, fleeing natural disaster, etc., are
346. forbidden to send them back.
347. And so it seems like to me, TPS, where this would play in here is that the president can
348. make a determination if this situation, if the conditions, in the case of Haiti and Syria,
349. the two that were big on it, Syria has civil war.
350. And the question, it seems to me, legally, the president has to answer, is the war over?
351. I mean, can you actually send people back or would they be, you know, in danger?
352. Same with respect to Haiti.
353. So Jack says Homeland Security has to talk with the State Department.
354. And I'm imagining that's the question that needs to be answered.
355. Is it fair to say in this case in essence the case was brought because they said if the Homeland Security is not talking with Department of State and the context of coming from the president as to why they want to send people back it seems like the determination was not based on could they be returned safely Determination was based on something else How is that as an interpretation for what this issue was with the TPS case
356. You know, there are two levels here. I mean, one is the level that Jack quite accurately
357. described, and that is that the statute says that certain things have to happen before government
358. decisions are made. You can't just make it up. I think the stronger case here is that if you look
359. look at what the statute requires, the steps you have to go through, then they did just make it up.
360. And I think that has a lot to do with many things that I think you can call at least tinged or even
361. profoundly reflecting racism, that they just reached a conclusion at the outset and said,
362. well, we're just going to, here's the conclusion. And so they didn't go through all the steps and
363. the steps, the steps matter. I mean, even in the Trump administration, steps had mattered. I mean,
364. the Deferred Action for Childhood Arrivals. The Trump administration tried to end it back in 2017.
365. The first Trump administration tried to end it in 2017. And the court actually did step in at that
366. point and said, well, you didn't do it the right way. And that did matter because the Trump
367. administration did not turn around the next day and do it the right way. And so these things can
368. be real obstacles in the political context. And so part of this is really like, I was disappointed
369. in this decision, quite disappointed. But I mean, I think it's important to emphasize
370. that the challenge, the challenge, what the plaintiffs were saying is not that the government
371. can't decide these questions. It's just that you've got to do it the right way. And the right
372. way has to have some respect for the rule of law and listening to people and understanding that if
373. the Congress said you have to do certain things, then you've got to do those things. But the other
374. level is something, Doug, you brought up. And I think it requires looking at the history of
375. refugee protection in the United States. And there's a federal statute back in 1980, but the
376. history of this goes back to post-World War II period, and there's a refugee convention that
377. protects people against return to countries where they would face persecution. You know, this is an
378. aftermath of World War II and the Holocaust, and a couple of things that really matter here, and
379. that is that this is a really narrow version of the people you would protect under law. I think
380. the drafters of the convention saw this not as an undermining of national borders and national
381. sovereignty, but really a relatively narrow exception. And I think what the Trump administration
382. is doing in its TPS decision, in its reduction in refugee admissions, its attitude toward asylum,
383. what the Trump administration essentially is doing is we're going to read this as narrowly
384. as possible, or even more narrowly than that. What's happened, though, is that starting not
385. Not long after World War II, it became clear that the refugee protection provided in the
386. convention was really too narrow for circumstances where the view of the government, the view
387. of a lot of people was that people need to be protected.
388. And so you had a parallel system of things that provided on a much more ad hoc, but clearly
389. fundamental basis.
390. You had the Hungarian uprising in 1956, and the president let in Hungarians, even though they weren't refugees, technically.
391. But the same thing happened after the Cuban Revolution.
392. It's happened to other countries.
393. And TPS gets established by Congress in the 1990s.
394. And so TPS is, I think the president has tried to marginalize TPS.
395. In fact, to take away TPS from people just because he thinks that the outcome
396. should be, but, and I think part of the public relations campaign on the part of
397. Part of the administration is to view TPS or any status that is lawful, but not a green card, as illegitimate.
398. It's not that far away from him saying asylum is a scam.
399. And so part of this is to regard TPS as something that isn't really a lawful status.
400. And to regard it as something some recent, I don't know, Biden invention or something like that.
401. But it has a long history of precedents.
402. This type of approach has a long history among presidencies that go back to Eisenhower and actually to Harry Truman.
403. So what I'm really trying to say is this, that TPS has a long history of this type of thing that goes well back before 1990.
404. TPS has a long history, and I think this is an attempt to delegitimate it.
405. And I think that the delegitimization, that impetus, that drive in this administration is so strong,
406. they're willing just to do it and see if they can see what they can get away with. And it turns out
407. in this particular case, the Supreme Court allowed them to get away with a lot. Yeah, and Naomi,
408. it's hard to address the DPS status for Haitians without remembering that this is a president that
409. said that Haitians were eating the cats, they're eating the dogs. And that was an issue, you know,
410. that seemed to come up is how much what appears to be the president's motivation here with his,
411. quite frankly, his racist statements against Haitians. Is that evidence with respect to
412. wrestling with this TPS case? So there's the legal principles, what TPS means,
413. but we've been talking a lot about context and this one has to be screaming with context.
414. Yes. And if I could just roll things back historically a little bit and talk about
415. the origins of TPS. So yes, it was statutorily created in 1990 with the Immigration Act,
416. But we can't understand where TPS came from unless we deal with Ronald Reagan and the 1980s, particularly with so-called people from El Salvador and Guatemala who were fleeing genocidal, horrifically violent civil wars that the Reagan administration was supporting.
417. The Reagan administration, because of his kind of bloodthirsty approach to the Cold War, was actively supporting the governments that were massacring their own people.
418. OK, and so those people, in order to survive, became migrants.
419. So then they become migrants. They come to the United States.
420. They are summarily basically denied asylum claims, even though they fit the very narrow definition that's in the Refugee Convention and that's in the 1980 Refugee Act.
421. And it's because if they are fleeing a U.S. ally, then they therefore can't be refugees because we don't support bad regimes.
422. OK, so that's the kind of logic.
423. So what happens is the sanctuary movement, again, a social movement, saw what was happening, tried to work through the legal process to get Guatemalan and Salvadoran migrants asylum, finding out that they are basically it's a non-starter because the system is stacked against them.
424. And so they start moving into doing other things like providing mutual aid, providing them transportation, providing them medical care, housing, doing what they can to do justice rather than plead for justice.
425. In response, the Reagan administration, I hope this sounds familiar to what's happening today,
426. the Reagan administration sends the FBI to infiltrate churches to prosecute pastors and nuns and Good Samaritans and prosecutes those with the full force of the law That only strengthens the sanctuary movement Meanwhile the legal kind of arm of this social
427. justice is filing lawsuits that results in this, it's called the ABC settlement, I think it's
428. American Baptist Churches settlement that requires that the I in the Immigration and
429. naturalization services, stop the deportations, and re-evaluate all the denied claims of Guatemalan
430. Salvadorans. That happens, I think, right before the 1990 Immigration Act is basically moving
431. through Congress and ultimately gets signed, creating TPS. So TPS comes out of this struggle
432. between the U.S. executive and social movement. It is also a compromise. Because it is a compromise,
433. between these two forces, it is compromised. So it is not asylum. It's cut from the same cloth,
434. but it's not the same thing. This is where I agree with the opponents of TPS. It is a temporary
435. status that should not be temporary. But my solution is give them a real path to permanent
436. residency and citizenship. Because I don't think it's fair for people to be on a temporary status
437. for six to 18 months at a time for more than a decade, which is the case with TPS. They should
438. be allowed to like know that they're not going to be deported. They're integrating with our society,
439. they're contributing to our schools and our communities, to our economy, etc, etc. Now,
440. going back to your question about Haitian migrants, it's no surprise that this case is
441. involving the attacks on Haitian migrants. Because again, this is kind of an OG story
442. of US immigration, criminalization and policies targeting a specific group of people for exclusion,
443. detention, and deportation. Okay, so again, this goes to the same period, the 1980s,
444. when we had boat people, I'm putting scare quotes just for people who are listening,
445. from Haiti, trying to make it to the United States or trying to make it anywhere else, really.
446. And then we in response, create this ad hoc program called the Haitian program,
447. the so-called Haitian program, which includes things like blanket exclusion and denial of asylum, mandatory detention, and deportation.
448. This was also challenged in court, and the district judge who first heard the case said that all the plaintiffs are Black.
449. We cannot turn our eyes to the fact that this is blatantly discriminatory.
450. So we have this longer history, and the SCOTUS and Alito are bending themselves into all kinds of different shapes to deny this, not only the blatant statements of people like J.D. Vance and Trump calling Haiti a s*** country, making false allegations about how they're eating cats and dogs, which again, just BTW, is a long kind of trope of anti-immigrant xenophobic rhetoric, right?
451. Like the eating of animals or inappropriate animals.
452. So Haitians are very important to the story of U.S. immigration.
453. This is not just about TPS, but the fact that this case in particular threatens 1.3 million
454. migrants, the status of 1.3 million of our neighbors, including and in addition, 300,000
455. of their U.S. born children.
456. The fact that it's working through Haitians is not coincidental.
457. It is informed by this greater history.
458. This is not the first time that SCOTUS has been over backwards to deny blatant racism
459. because they did it the first time around with Trump v. Hawaii, which said that the
460. Muslim ban was a completely constitutional despite the numerous anti statements that the administration had made Raises the question that we actually asked last week show
461. is the Constitution colorblind? Should it be viewed as colorblind? And what's striking about
462. all of this, the court seems to not want to acknowledge questions of race when it's quite
463. obvious when there are questions of race. And I just want to give you a chance to respond here
464. too, because one of the most important points out of all of this is that the White House at
465. Times seems to suggest that asylum and citizenship are cut from the same cloth. And asylum questions
466. really are separate from citizenship questions. And there's nothing about TPS that seems to assume
467. citizenship, though, as Naomi pointed out, that may be one of the real weaknesses of TPS that
468. we're not talking about that. But legally speaking, the U.S. really does treat asylum questions and
469. citizenship questions differently, right? Legally speaking, those are two different
470. parts of U.S. immigration law, but the phenomenon of forced migration and how the United States has
471. dealt with it, I mean, you can go back all the way to the Revolutionary War. Loyalists were forced
472. to leave. Those were forced migrants. The enslaved people they dragged along with them to evacuate
473. them also forced migrants. Native Americans, 80,000 of them deported in 1830s from the Southeast
474. States forced migrants. So asylum is in the current immigration law governed by a very specific set
475. of legal requirements to meet that definition. Citizenship as well. But more broadly speaking,
476. I think what Trump is doing is by ending TPS protections for certain groups, very clearly non-white groups, he's trying to take any semblance of legal protection from them, even if it's temporary protection, thus making them more vulnerable to deportation.
477. And so one of the through lines I do want to draw is in times of slavery, while slavery was legal, any Black person could be stopped by any white person asking for their papers.
478. There were internal state laws regulating the mobility of free Black people and enslaved people. Any white person was deputized to check the papers and to demand that a Black person prove that they're not escaping from slavery.
479. So the enforcement of these state migration laws disproportionately falls on the Black population.
480. and here in the current day you have a pro-publica um study you have a local study from the city
481. which is a local paper and all the people being stopped and picked up by ice are including u.s
482. citizens the u.s citizens that have been picked up by mistake and and uh not immediately released
483. they've been disproportionately Latino. So we have a set of policies that are not race neutral
484. in their effect. Our guest today has been Naomi Pike. She is the Associate Professor of Global
485. Asian Studies in Criminology, Law, and Justice at the University of Illinois, Chicago. She's the
486. author of Bans, Walls, Raids, Sanctuary, Understanding U.S. Immigration for the 21st
487. century and rightlessness testimony and redress in US prison camps since World War II. And that
488. was a winner of the best book in history by the Association of Asian American Studies Jack Chin is Distinguished Professor of Law and Director of Clinical Legal Education at UC Davis School of Law
489. He's the co-author of Birthright Citizenship, Slave Trade Legislation, and the Origins of
490. Federal Immigration Regulation, and the author of A Nation of White Immigrants, State and
491. Federal Racial Preferences for White Non-Citizens.
492. Hiroshi Motomura is the Susan Westerberg Prager Distinguished Professor of Law at the University
493. of California, Los Angeles. He's the author of Americans in Waiting, The Lost Story of Immigration
494. and Citizenship in the United States. And his latest book is Borders and Belonging Towards a
495. Fair Immigration Policy. And Anna Law holds the Herbert Kurtz Chair in Constitutional Rights at
496. CUNY, Brooklyn. She is the author of The Immigration Battle in American Courts, and most recently
497. released Migration and the Origins of American Citizenship, African Americans, Native Americans,
498. and Immigrants. Thank you all so much for sharing your time, your expertise on these
499. incredibly important issues. Thank you very much. And that's it for today's program. Thank you for
500. listening. The Scholar Circle is hosted by Doug Becker. Its managing producer is Ankina Agassian,
501. Sade Dongre is our webmaster and assistant producer.
502. Our archives are at ScholarsHoracle.org and our podcasts are on Apple and Google Podcasts and iTunes.
503. Please follow us on at ScholarsHoracle or me at Armoudian and join our Facebook page.
504. I'm the founder, anchor and occasional host, Maria Armoudian.
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