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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Speaker1: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now your host, Nia Rogers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor. Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
Speaker1: I am feeling very grateful this morning. How are you?
J. Aughenbaugh: I'm good. Why? May I ask why are you feeling very grateful?
Speaker1: Because I'm lazy, and I'm really glad that I was born in the United States. Because if I had to do anything to try to adjust my citizenship, that is not for the faint of heart.
J. Aughenbaugh: No. Listeners, in this podcast episode, which is part of our Summer of SCOTUS series, we're going to be focusing on a couple of immigration decisions, neither of which, by the way, deal with the meaning of birthright citizenship because of the day we are recording this episode, the Supreme Court has not looked at the constitutionality or has not handed down a decision about the constitutionality of President Trump's executive order.
Speaker1: We'll come back to my gratitude later in case it has to be revisited.
J. Aughenbaugh: But this episode is going to be looking at three Supreme Court decisions that have received quite a bit of attention in the press. Two deal explicitly with immigration. A third deal with the rights of non-US citizens to sue an American corporation for aiding another nation and persecuting them. We put these three together because they deal broadly with connections. The first decision, Nia, is the Mullin v. Al Otro Lado case, which looks explicitly at, did the Trump administration violate federal law when it issued a policy that allowed the government to turn non-citizens away at the border without hearing any claims that they had qualified for asylum? What we're looking at here is a policy that was in effect during the Obama administration and was continued in Trump's first term, but was reversed by the Biden administration. By the way, the Biden administration's reversal is what led to the massive influx of non-citizens attempting to gain political asylum in the first couple years of the Biden administration. Now, what's at issue here is a phrase in federal law that says, "When non-citizens arrive in the United States, at that point, they can request asylum." What becomes an issue here, Nia, is what is meant by the phrase "arrives in"? I know listeners, you might be thinking, you got to be kidding, but I'm not because if you want to go to law school and become a lawyer, you better be comfortable with wordsmithing.
Speaker1: Detail.
J. Aughenbaugh: Detail.
Speaker1: I'm going to throw stick here for just a second, Aughie.
J. Aughenbaugh: Yeah.
Speaker1: One of the things that we frequently talk about in my friend group is, does passing through an airport mean that you have been to the place? What we have arrived at as a friend group is no. The airport is not. If I pass through the airport at Frankfurt, I have not been to Frankfurt. I have been to the airport in Frankfurt. If I go to the Houston airport and then I never leave the airport, I have not been to Houston, I have been to the airport, which is like any other airport. It doesn't constitute me having been to Houston. That sometimes when people have had a little bit too many adult beverages, gets into a raised voice argument. But it is what we think of as the natural, you have not been to a place until you have entered into the place. If I walk up to your house and I drop something on the porch like an Amazon driver, the Amazon driver has not been in your house. The Amazon driver has been to your house, which is a very different thing. If the Amazon driver just opened your door and popped their head in right now and said, hey, Aughie, I got a package for you. One, you would come off that couch in a second-and-a-half flat. Two, that would feel pretty aggressive. I'm not saying I necessarily agree with the Supreme Court all the time, and I don't even know that I thoroughly agree with them on this ruling, except that I do have to agree with Alito. You arrive in a place once you have set your foot in the place. You have to enter the place. I do also agree, unfortunately with Sotomayor, when she says, this is going to cause a lot of people to try to do it illegally and die because they're going to walk across the desert in Arizona. They're going to try to swim across the Rio Grande, and there's going to be loss of life that's unnecessary. I don't know how I feel about this case. I need you to tell me more.
J. Aughenbaugh: The vote in this case was 6-3, and once again, conservatives versus liberals. It basically clears the way for the Trump administration to resume a policy that allows federal agents posted at the border to turn back asylum seekers before they enter the United States.
Speaker1: Basically what you have to do is make your asylum case to the border patrol?
J. Aughenbaugh: Yes. Right now, border patrol agents have been instructed to reject anybody who comes to the border and says, I want asylum.
Speaker1: Okay.
J. Aughenbaugh: But, Nia, as you pointed out, the crux of this case, and I understand why people get frustrated with language in the law or what lawyers do, but it basically comes down to the phrase "arrives in". Because the way the law is written, any non-citizen who arrives in the United States must be allowed by a government agent to apply for asylum. If you want to reduce the number of asylum seekers, then you turn people away at the border.
Speaker1: Right. You force them to buy a plane ticket, land in an airport and then ask for asylum.
J. Aughenbaugh: Nia, do you remember this when in our youth, the Cuban Boatlift, Fidel Castro released a whole bunch of Cubans from his prisons, mental health hospitals, and then basically placed them on boats? They came to the shores of Florida, and the United States had a policy, which was known as dry land, wetland policy. Agents were instructed don't allow them to place their feet on dry land. Because if they did, then they could request what? Asylum, because they had actually arrived. But if they were still on the boat or even swimming in the Atlantic, or the Gulf of Mexico, they had technically not arrived in the United States.
Speaker1: Right. This is a long-held policy.
J. Aughenbaugh: Yes. Justice Alito wrote the majority opinion listeners. As he pointed out, and again, direct quote, "In ordinary speech, no one would say that a person 'arrives in' a place, for example, a house, a city, or a country before the person enters that place." This was in many ways, your standard Justice Scalia, textualist analysis. What is the common meaning of the words at the time the law was written? The conservatives all signed off on it. But Nia, as you pointed out, the three liberals dissented, Justice Sotomayor wrote the dissent, and a quote, "The consequences of today's decisions are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not."
Speaker1: Which she delivered from the bench.
J. Aughenbaugh: She was so upset. Again, we've talked about this listeners in previous podcast episodes. You can really tell when somebody in the dissent is upset with the majority because they read portions of their dissenting opinion. Apparently, however, Alito was unaware that Sotomayor was going to read portions of her dissent because he indicated that if he knew she was going to do that, he would have included more from his majority opinion. Yikes.
Speaker1: His opinion would have been longer?
J. Aughenbaugh: No, he would have read more. Nia, the way this happens at the court, the day they hand down a decision, John Roberts will say, who's going to handle the next case? Then whoever authored the majority opinion reads a summary or excerpts from their majority opinion. Now, if nobody's going to read from the dissent, it's a pretty short majority opinion author reading from their opinion. But if you know that somebody is going to read from their dissent, typically the majority opinion, then we'll go ahead and read more in an attempt to inoculate the majority from the criticisms of the dissent.
Speaker1: And potentially answer some of those criticisms.
J. Aughenbaugh: Yeah.
Speaker1: Okay.
J. Aughenbaugh: Yeah. Now, for those of you who don't understand how American asylum law works. Federal law stipulates that people may seek asylum if they fear persecution based on reasons including their political views, their race, their gender, their religion, but they have to get inside the US border. This is known in immigration law as metering. You are processed at the border like you would if you are trying to get into a parking deck. There's a meter.
Speaker1: Metering is blocking the asylum seekers?
J. Aughenbaugh: That's right. Because like in a parking deck, until you get your target, and the arm goes up, you officially have not parked your car in that deck.
Speaker1: Got you.
J. Aughenbaugh: Now, metering expanded dramatically during President Trump's first term. Now, it was a policy during the Obama administration, but like most things that presidential administrations have done of recent vintage, it was increased dramatically during the Trump first administration. Now, this has led to what some have labeled a humanitarian crisis because those who were turned away set up makeshift camps on the Mexican side of the border. This has led to a whole bunch of people trying to enter the United States via the Rio Grande or the Sonoran Desert. Many of those people were not successful. In other words, they died. In 2021, a federal judge ruled in favor of 13 asylum seekers, and the Ninth Circuit Court of Appeals upheld the ruling. President Biden, rescinded Trump's metering policy. When Trump won reelection in 2024, he went ahead and said, we are going to resume metering.
N. Rodgers: And I think he tried to soften the language by saying, as we need it.
J. Aughenbaugh: As we need it. That's right.
N. Rodgers: We're not going to do it all the time. If there's not that many people trying to do this, then we will handle it at the boarder. Our border agents will handle it. But when there's huge surges of people, we're going to turn everybody away. Basically I think what Donald Trump was saying, that's what he was asking for.
J. Aughenbaugh: Now, this case is different than another case that's working its way Nia, through the lower federal courts. Donald Trump also issued an executive order when he came into office in January 2025, where he went ahead and said that there was an invasion at the southern border of the United States, and he was barring asylum seekers, for public health, safety and economic reasons. That executive order is currently being challenged, and two months ago, I think, April, the DC Circuit Court of Appeals said that declaration was unlawful because it did not meet the definition of invasion in federal law. But that's a different case.
N. Rodgers: And that one hasn't arrived yet.
J. Aughenbaugh: Yeah, that one hasn't arrived and the Supreme Court, the Trump administration said it would appeal that, but I think that they got until the end of June to decide whether or not they will, and then we have to wait on whether or not the Supreme Court decides to take that. But the effect, and again, listeners, I'm I'm divided much like Nia on this. The Supreme court issued a very technical textual ruling. But because our elected officials have not come up with meaningful immigration policy reform, we now have this situation where a whole bunch of people try to enter the United States through Mexico, and because of the language of the law in this ruling, a whole bunch of them are going to be turned away and these are desperate people. And desperate people will do things that will cause them harm, right? Right. And we need a solution, folks, and the Supreme Court basically said, in this case, and I understand Sotomayor's dissents, but the Supreme Court basically went ahead and said, we, being the members of the court, are not going to come up with the solution. The solution has to be the political branches. Because we interpreted the law, and our interpretation is the common everyday meaning of arrives in.
N. Rodgers: And so there's some level of at least, I think, with the Supreme Court, that they're like, well, the president is charged with the protection and welfare of the nation and the borders, he is charged with that as the president or as the executive branch, I should say, because technically was nome at the time. There is that complication, as well. If the president says, wait a minute, if there's no way that I can turn people away, then we have no borders, and I can't protect the United States. There's that argument, as well, but then there's the other argument of, but humanity, There's these ethical things that come into question with people who, I took my kid and I got on a train, and I came from Guatemala to the border so that I could say, please, my kid's going to end up in a gang, and they're going to end up dead, please let me. There's these heart wrenching stories that come out of all of this, too. I feel most of the time, I feel very little sympathy for the Supreme Court because they make a lot of money and they have a pretty cushy job, but there are times when I'm like, that's a tough one. That's a really hard.
J. Aughenbaugh: It's a tough one. And also, too, listeners do understand, it's easy to criticize Trump. It was easy to criticize the Biden administration or before that, the Obama administration. But in the US Constitution, the branch of the federal government t has the authority to create policy in regards to immigration is the United States Congress.
N. Rodgers: And there have done nothing. No reasonable immigration reform whatsoever.
J. Aughenbaugh: And the current law explicitly gives the executive branch the authority, in regards to accepting or not accepting people who are seeking asylum. And if we don't like that-
N. Rodgers: That's why voting is important.
J. Aughenbaugh: We need to elect members of Congress who will make immigration reform a priority. Not some of this other stuff that seemingly gets a whole bunch of attention, but electing people who make immigration reform a priority and who are willing to compromise. Because compromise will be required if we want immigration reform. I'm sorry, I can't see any way immigration reform occurs without some compromise. Which means both conservatives and liberals are going to have to get off their high horses and say, here are the realities. How best do we deal with those realities?
N. Rodgers: I'm willing to swallow. Here's what you're willing to swallow. Let's find some way to handle this in the middle that's reasonable and fair and ethical and kind.
J. Aughenbaugh: So for liberals-
N. Rodgers: I think that's the thing that people forget with immigration is both sides, I think the reasonable people on both sides, not the lunatics, but the reasonable people on both sides want safe, fair, legal immigration. They want for people to be able to come to the United States and have the American dream, but they need them to do it in some sort of.
J. Aughenbaugh: That also protects our borders. No nation goes ahead and says-.
N. Rodgers: Let's just have a free for all. Anybody who wants in borders don't matter. Too much blood and treasure is spilt over drawing those lines. For any country to say, we don't really, we're fine just do whatever.
J. Aughenbaugh: And that's going to require compromise. But anyways, that's one immigration decision, Nia. The next one, you want to talk about pulling heartstrings. The next one is the case name is Mellon v. Doe. What is at issue here in this case is another element of the United States immigration law, a program known as temporary protected status, TPS, which allows migrants from certain troubled nations to live and work legally in the United States. The Supreme Court in a 6-3 decision ruled that the Trump administration's rescission of TPS, if you will, designation for hundreds of thousands of Haitian and Syrian migrants was legal. There's no way to go ahead to sugarcoat this, Nia. The effects are going to be immediate.
N. Rodgers: Wait, wait, wait. Did the courts find that it's legal for him to do that, or did the courts find that they don't have the power to tell him he can't do that?
J. Aughenbaugh: Very good. And that's a very important distinction.
N. Rodgers: Because those are two very different questions.
J. Aughenbaugh: So the TPS program, when it was created by Congress, has language that says, "Courts should not be able to review determinations by the Department of Homeland Security to end temporary protected status for Haitian and Syrian immigrants."
N. Rodgers: Or for any group on that list?
J. Aughenbaugh: Yes. Now, this case was brought by Haitian and Syrian immigrants, but there's 17 countries that are currently on the list or were on the list. This is an administrative law concept, and this is what a lot of news stories completely missed. And this is rooted in a law that Congress passed in 1946, the Administrative Procedures Act, which Nia, you and I discussed on this podcast a number of times. Congress can designate in law that the discretion it is delegating to the executive branch is unreviewable by the federal courts.
N. Rodgers: It's a little get out of jail free card in terms of judicial review, it says, everything will have judicial review unless we say it doesn't. Unless we specifically as Congress, as the elected representatives of the people say that they can't review this thing, whatever this thing is.
J. Aughenbaugh: And because non-US citizens typically don't have constitutional rights. It's not like Congress is saying that the courts cannot review constitutional claims. No, this is a legal claim, because remember, these immigrants don't get temporary protected status unless Congress created it in law.
N. Rodgers: Otherwise, they would have to go through the aforementioned process of asylumsy.
J. Aughenbaugh: That's right.
N. Rodgers: This is a blanket asylum grant for a nation.
J. Aughenbaugh: Yes.
N. Rodgers: So one of the reasons I think that the TPS came into being is because the United States did not grant this to Jews during World War II, who were trying to escape German concentration camps, and there was some real guilt about that after the war, as there should have been. I'm not in any way saying there should not have been. And so they said, wow, sometimes it is really important for us to say, the entire group or country or nation or whatever needs to be given a place to get away from the insanity that's happening in their own country. And the currents of Haiti, it was after the earthquake. Destroyed Haiti.
The current version of this was created by Congress in 1990, and its basic idea, and it's in the mission statement of the law, shield immigrants in the United States from being deported to countries engulfed in armed conflict, natural disaster, you just mentioned Haiti, or another extraordinary crisis. But it's supposed to be temporary. You're allowed to work in the United States for up to 18 months.
N. Rodgers: In the case of Syria, Bashar , and he was on the regular killing people, I think Pol Pot or Hitler.
J. Aughenbaugh: Now, applicants cannot have serious criminal records. They have to pay a fee and pass a background check.
N. Rodgers: And they have to work. They have to be engaged in, they can't come here and get wealth, they don't get welfare. They have to work, they have to support themselves.
J. Aughenbaugh: And DHS can renew the protection. And unfortunately, prior to the Trump administration, DHS was in the habit of just uniformly renewing the protection.
N. Rodgers: It was very little review. Very little review. And is this country still in a bad situation? Is this group within the country still in danger?
J. Aughenbaugh: Nia, you gave the example of Haiti. Haitian migrants have received TPS protections. The first designation was given by the Obama administration in 2010, following Haiti's devastating earthquake. Then it was extended to those who arrived later. Then Haiti has continued to have quite a bit of domestic turmoil. That's one way to put it. Well, trying to be diplomatic here.
J. Aughenbaugh: However, when Trump resumed office in 2025, his then secretary of Department of Homeland Security, Kristi Noem, she went ahead and began the process, and there is a process that DHS has to follow to cancel temporary protections.
N. Rodgers: They can't the way, say, canceled and you go home tomorrow. They have to give you time to wind down your life, get your affairs in order, that sort of thing. Within the law there are provisions like that.
J. Aughenbaugh: DHS basically has to go ahead and follow the standard notice and comment informal rulemaking.
N. Rodgers: They also have to say, your country looks fine to me and hear people say, here's what's actually going on that you don't know about or whatever.
J. Aughenbaugh: Yeah. The other part of the argument made by the Haitian and Syrian immigrants was that Trump wanting to rescind this protection was based on racial or ethnic animus. The majority opinion written by, was Alito again?
N. Rodgers: Alito. Yeah.
J. Aughenbaugh: It was Alito. Went ahead and said that those remarks and Trump has made a number of them, particularly about Haitians and eating their neighbors pets and that they were poisoning the blood of the country.
N. Rodgers: While those are gross, they do not rise to the level of hate speech, basically.
J. Aughenbaugh: Yes. Because he went ahead and said, DHS's rescission wasn't just for Haitians. It was for 16 other countries.
N. Rodgers: They rescind all of it?
J. Aughenbaugh: Yeah. That's very controversial.
N. Rodgers: In for a penny in for a pound.
J. Aughenbaugh: Come on, it's the Trump administration. Here's this quote. "Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, especially those concerning Haiti and Haitian immigrants in this country. But whatever one may think of the cited statements, they are insufficient to show that termination of Haiti's TPS designation was based on the race of the Haitian people."
N. Rodgers: I disagree. I'm with Elena Kagan on that. The president was being a racist jerk because he made it about the fact that they were Black and brown people.
J. Aughenbaugh: That's right.
N. Rodgers: Poisoning the blood. That is a direct call to the KKK. That is a direct call to White supremacists.
J. Aughenbaugh: I think that's going to be the problem.
N. Rodgers: The side eye that Kagan gave Alito, I could feel from my apartment. I'm like, dude.
J. Aughenbaugh: By the way, that argument about poisoning the blood is, I'm going out on a limb here and saying this is the reason why Trump is going to lose the birthright citizenship case. United States immigration is not based on blood. That's what goes on in Europe. In the United States, citizenship is based on where you are born. It has been for pretty much most of our country's history. I digress. As you pointed out, Justice Kagan, she's got a good quote here. "It is hard to imagine the statements being made today of any white community. The statements fairly shout in their racial undertones and overtones alike that race entered into the president's resolve to remove Haitians from this country."
N. Rodgers: Really, in my opinion, I know my opinion doesn't matter in this at all, but I'm going to say this. I think that the court should not have waded into the question of whether the president is racist or not. They should have said, We don't have the authority to talk about whether you can get rid of this program or not because Congress tied our hands. We are not going to discuss with anyone. The courts will not be deciding this. None of the courts will be deciding this. Not the supremes, not the district, not the circuits, none of them. Nobody will be having the discussion about whether this is legal or not because this is a fight that should be happening between Congress and the president or Congress and the executive. You cut us out of it. We're out of it. We're not going to review it.
J. Aughenbaugh: Yeah. I agree with you.
N. Rodgers: It's weird to me that they waded into it.
J. Aughenbaugh: I got to wonder if Alito was forced by some of the other justices in the majority to respond to language in Kagan's draft dissent. Because I'm with you. If you wanted to go ahead and write a really tight majority opinion, I would have just focused on the fact that the United States Congress made what the executive branch did in this instance, unreviewable by the courts.
N. Rodgers: If there are statutory requirements in the TPS that Congress wants reviewed by the courts, then they need to fix that.
J. Aughenbaugh: Yes.
N. Rodgers: Let me back up and say this in a different way. If the Secretary of DHS has to meet certain criteria in order to take a country off the list, and they refuse to meet that criteria, Congress should amend the law to say, then the court's going to kick your butt. In that instance, they could make it so that the court doesn't have any review unless there's a clearly egregious, I don't know how much reading Kristi Noem did before she decided who she was going to take out the list or what she was going to do. I would hazard a guess at very little to none. But that's because I'm cynical. Maybe she did a huge amount of reading. Maybe I would be totally proven wrong. I don't know. But if they want some kind of provision for that, then they shouldn't say the courts have no say in it. They should say the courts have a say when the secretary fails to do all the steps that we tell he or she has to do in order to do this thing. Then you bring in review, but they didn't do that.
J. Aughenbaugh: According to the administrative procedures, Nia, the Congress can actually require an agency to go beyond normal informal rulemaking. They could require formal rulemaking. They could require hearings.
N. Rodgers: Oversight.
J. Aughenbaugh: No, hearings within the agency. It's like when the FCC does license renewal for TV and radio stations. The hearings are public.
N. Rodgers: But they required none of that. You have to stand up and deliver what you're doing.
J. Aughenbaugh: Because again, Congress created the program. This is not a requirement of the federal government in the US Constitution. Congress created the program. As you pointed out, Nia, because the United States Congress had decades of embarrassment of how the United States treated immigrants in World War II, the Korean War, and then the early years of the Vietnam War. The way we treated our friends and allies during the Vietnam War was atrocious. We had decades of embarrassment. We're promoting democracy around the world. But, hey, if your people who are being persecuted want to leave and come to the United States, we're not going to go ahead and let them in.
N. Rodgers: Afghanistan. You helped us with our efforts to destroy the Taliban. Thanks. Good luck. We'll get back to you on that.
J. Aughenbaugh: Yeah. No room for you on the helicopters. Really? Again, Congress could fix this. Again, listeners, we're not giving the Supreme Court a pass here. It was a very technical ruling. I happen to agree with Kagan. I think there's a fair amount of racial and ethnic animus that is driving and is manifest in a lot of Trump administration policies. I think it's despicable. On the other hand, in terms of what the executive branch can and cannot do, what the Trump administration did is unreviewable by the courts. I read the statute. I can't come to any other conclusion. Unless we're going to go ahead and start ignoring the language of law, that works now or could work for you. But remember what comes around goes around in regards to how you interpret the law. The last case I think we should cover in this podcast episode, Nia, is one that is getting overshadowed because of all the other big cases that are being handed down. But this one fascinates me, this is Cisco Systems versus Doe. Doe, in this case, are practitioners of the, is it Falun Gong religion. This began in China in the 1990s. In 1999, the Chinese government designated groups associated with this religion as illegal. The Chinese Communist Party and the security officials wanted to develop a massive online surveillance system known as the "Golden Shield", to find Falun Gong practitioners. Now, the petitioners in this case, Doe, allege that the technology, was created by Cisco and that two of its top officials aided and abetted the abuses of practitioners of this religious faith because of how the Golden Shield surveilled and identified them.
N. Rodgers: Because by Chinese government officials when they take you to a reeducation camp, that thing that we say kiddingly on this podcast, the beatings will continue until morale improves is a thing they actually do they beat you until you say, I love the government. I don't know what I was thinking. I have been reeducated and I am now a model citizen. They will torture you until you say that or until you give in. It's a known thing. They actually will say, no, we're reeducating people so that they have a better idea about the Chinese government. They will admit tacitly that they are doing this. They are horrible to these people, not just Falun Gong, but anybody who falls afoul of the Chinese government gets this treatment. Has since Mao. This is a decades long approach to we will make our citizens nationalist by making them love the government or else. Big O, Big E, or else. When they say Cisco helped in our abuse what they're saying is they would not have been able to find us if you had not allowed them to find us. If you had not made the software that allowed them to find us, they would not have been able to find us and would not have been able to torture us. That's what they're getting at with Cisco?
J. Aughenbaugh: The petitioners brought the case based on two federal laws. One, written in 1789, and I did not misspeak, 1789, the alien tort statute, and also a 1991 law, the Torture Victim Protection Act. Unfortunately, for the petitioners, the Supreme Court in a 6-3 decision, Conservatives versus Liberals, the Supreme Court, I think it was 6-3. Yeah, 6-3.
J. Aughenbaugh: The Supreme Court said neither statute gives the petitioners the legal right to sue Cisco in federal court for the abuses and torture they suffered at the hands of the Chinese government.
N. Rodgers: We remind you this on a regular basis, but I'm going to do it again that the Supreme Court in this case is not talking about the facts of the case, whether Cisco is guilty of helping the Chinese government. Cisco says, by the way, that it did not do anything. It did not change the out-of-the-box software that it sold to anybody who wanted to buy that, including the Chinese government and that they weren't responsible for what happened. They are not even getting into the ethics of that question. What they're saying is these people did not have standing to bring this case.
J. Aughenbaugh: That's right. The majority opinion written by Justice Coney Barrett acknowledges this. She makes it very clear. These types of cases involve "heinous and inhumane acts." But she said, that's for the political branches or international government actors to address, not the courts. We can only address what we have been given the authority to address and we don't think either of these two laws gives us the authority to address the complaints you're making about the Cisco corporation. Yes.
N. Rodgers: And the complaints that you're making against the Chinese government that happened on Chinese soil. Part of this is these laws apply to things that happen on American soil. Coney Barrett is saying, we don't have the-
J. Aughenbaugh: But Cisco is an American corporation.
N. Rodgers: That's why they're bringing it in America.
J. Aughenbaugh: Because if you're the practitioners of this religious faith in China, how do you go ahead and extract some retribution for the corporate entity that facilitated the abuse you suffered? Well, you go to the home nation where they are incorporated and you attempt to use the laws of that nation to exact your retribution. Coney Barrett, writing for the majority, says, we can't in either one of these statutes, find a legal authority for us to address your claims. She said, again, if this is a running theme in today's podcast episode, Coney Barrett majority opinion makes it very clear. You know who could give you legal standing in US federal courts? United States Congress. But Congress didn't clearly state that in either of these two laws. Now, this led almost immediately in a dissent that was written by Sonia Sotomayor, she went ahead and said, again, the justices actually gave us some really good quotes in their opinions. The ruling closes the courthouse doors, not just to the plaintiffs in this case, but also to virtually every future litigant seeking redress for a violation of federal law under the alien tort statute. The court's decision today is yet another notch in its belt, unabashedly remaking the law in its preferred image. I'm like, well, okay, then. You're beginning to see with these cases handed down at the end of June, the veils lifted. The diplomacy that you might have seen earlier in the semester, they're tired, they're cranky and if you're one of the three liberal justices, you're basically going to go ahead and see about three quarters of a month of decisions where you're frequently writing in dissent. This case, listeners, the US Supreme Court has not been very receptive to these types of cases this millennium. There's a series of cases. I found easily three or four of them where the court has been extremely skeptical that these laws allow for lawsuits against corporations in the United States for actions that have occurred in other countries. I went ahead and put in the podcast prep notes, a whole bunch of cases. By the way, the Ninth Circuit Court of Appeals got smacked down once again. Last term, the Ninth Circuit Court of Appeals got off a little easy, but, wow, the Supreme Court, this term is smacking down the Ninth Circuit on the regular. But as you pointed out, Nia, this case is about jurisdiction. Could Congress go ahead and expand the federal court's jurisdiction to hear more of these cases? Yes.
N. Rodgers: Also, I think that it's important here to mention that Cisco claims that it did not do anything special for the Chinese government, that it basically sold a packaged thing which was software. It wasn't surveillance software. It was a networking software. Networking. Then you get into some questions about, does Cisco have to worry about the intent of the people to whom it is selling a thing in order to be sure that they're doing business. I know this is not the same thing, but I'm going to bring this up because I think it's close. If I sell you a gun because you have walked into my gun shop and said, it's about time I end my marriage. I'd like to buy a handgun. I now have to make an ethical decision about whether I am going to sell you that gun or not because if I think you really are going to go home and murder your spouse, I'm not going to sell you that gun. Ethically, I can't live with that. But if you come in and you're like, I want a Glock. I've always wanted a Glock. I feel like I want to say the word a lot, Glock, Glock, Glock and I want to own one, and I want it to be fabulous. You may be a nut job, but that doesn't mean that you're going to go out and hurt somebody with your Glock, and I feel perfectly comfortable selling you a Glock because you like saying the word. Do you know what I mean? At what point is it incumbent on me as the seller to have to worry about your ethical use of my product or my service or my whatever?
J. Aughenbaugh: Do we hold car dealers responsible for people who buy cars from their lot and then use them poorly?
N. Rodgers: Right. If I sell you a car and you're the driver in a bank holdup. Where's my responsibility? If you're a baby driver out here playing your music and getting away from the cops and I sell you that car. Am I responsible for that? Am I not responsible? I don't want people to hear me saying, so big corporations should not have to be ethical. That is not what I am saying at all.
J. Aughenbaugh: No, we're not saying that.
N. Rodgers: You know what, if I were a big corporation, I might not sell anything to China for my fear that it would be used unethically, whatever it is. But also then you're opening up a third market where somebody will buy the thing and then sell it to the Chinese government because they don't care. It's very complicated.
J. Aughenbaugh: Well, Cisco pointed out. Before they went ahead and sold the software, and by the way, when they did sell the software, this idea that the government would use network analysis to be able to go ahead and track dissidents or people engaged in illegal activity was [inaudible]
N. Rodgers: Is horrifying.
J. Aughenbaugh: It was novel.
N. Rodgers: They might not make that decision now the way they made that decision before if they thought.
J. Aughenbaugh: As Cisco pointed out, and I was fascinated by this, before they sold the software to the Chinese government, they had to get the approval of the United States State Department and they did.
N. Rodgers: Because you have to, are we allowed to sell these people this software? Nobody thought it was going to go this South this way?
J. Aughenbaugh: Well, and also, it now puts the burden on the State Department of multiple presidents. This also came out in oral arguments. Multiple presidential administrations went ahead and signed off on this because Cisco, like any, if you will, computer science vendor, did multiple upgrades. Hell, that's part of the way they make their money, and the upgrades got approved. It's not like the Chinese have always been on the United States Christmas card list. They aren't now and they certainly weren't back in the 1990s in the early part of this millennium. But the State Department kept on signing off on this.
N. Rodgers: On the other side of this, there have been cases where claims for aiding and abetting and torture have gone forward.
J. Aughenbaugh: Sure.
N. Rodgers: There have been cases where people have brought cases and said, hey, this person helped.
J. Aughenbaugh: The lower federal courts were much more lenient in allowing those cases to go forward. The Supreme Court, however, particularly this millennium, has said, whoa, whoa, whoa, we don't think these federal laws were designed for these lawsuits.
N. Rodgers: Are we signatories to the ICJ?
J. Aughenbaugh: No.
N. Rodgers: Sorry, the International Criminal Court of Justice. ICCJ.
J. Aughenbaugh: We actually drafted the bylaws and at one point, we signed and then we rescinded our signature. We're one of the few developed nations in the world who doesn't agree.
N. Rodgers: For anybody who's wondering the reason the United States is not a signatory is because it's a sovereignty issue for the United States. They want to be able to say that their Supreme Court is literally the Supreme Court in terms of, they want there to be no other court that could hold the United States responsible for whatever thing.
J. Aughenbaugh: Well, also, too, the Clinton and Bush administrations were concerned that the United States participation in UN peacekeeping could lead to American servicemen and women being prosecuted for any atrocities that occurred during a peacekeeping mission.
N. Rodgers: Some presidents probably have been mildly concerned about war crimes and being accused of those. But anyway, it's a complex case. These three cases are not simple.
J. Aughenbaugh: No.
N. Rodgers: It's not good in some ways, but what's really good about that is that all of these cases have taken as long as they've taken because the justices are really weighing the issues and having these internal [inaudible] is not the right word, but discussions and lengthy research and deliberation because they're not just going, no, you can't do that. There's this whole complex thing that they're going through, which I'm glad about. I'm glad that they are not just willy-nilly ruling one way or another. They're being a lot more thoughtful.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thank you, Aughie. And I'll see you again next week for more cases.
J. Aughenbaugh: Again, listeners, we were trying to break these up into manageable bites so that the episodes aren't too long.
N. Rodgers: But what's coming down the pike, the rest of them, are a grab bag of craziness. We've tried to find themes, and we found the two themes. Unfortunately, those all came out first, and now it's going to be legos of all the colors mixed together.
J. Aughenbaugh: We can try to go ahead and lump together some of the executive branch removal of independent government officials, blah, blah, blah, but it's going to be tough folks. But anyways, thanks, Nia.
N. Rodgers: [inaudible] Thank you, Aughie.
N. Rodgers: You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the workshop for technical assistance. Music by Isaac Hobson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed to the making of this podcast.