Scholars Circle - Podcast

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