Department of State v. Muñoz

Finally, the Supreme Court gets to live its dream: being xenophobic and homophobic at the same time. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We will hear argument first this morning in case 23334, Department of State versus Munoz.

• 0:10Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon and Michael are talking about Department of State v. Munoz. This case from 2024 is about the intersection of immigration law and the constitutional right to marriage. The plaintiff in the case, Sandra Munoz, is an American citizen who married a man from El Salvador. Her husband applied for a visa so that he could come live with her in the U.S., but the petition was denied, with the State Department vaguely suggesting that Munoz's husband was trying to enter the U.S. in order to engage in unlawful activity. Munoz sued, arguing that the government was infringing on her right to marry by keeping

• 0:53Speaker 01

  her husband out of the country and not providing more details as to why his visa was denied. The Supreme Court ruled against Munoz, stating that because her husband was not a citizen, the government didn't owe her an explanation for denying his visa application. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:17Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have caused our civil liberties to decline, like Tesla's sales figures.

• 1:24Michael Liroff?

  Mmm.

• 1:25Peter Shamshiri?

  I'm Peter. I'm here with Rhiannon.

• 1:27Speaker 04

  Hey, everybody.

• 1:28Peter Shamshiri?

  And Michael.

• 1:29Michael Liroff?

  Hey, yeah, I heard that, like, there was a poll that something like over 90% of Germans were like, "I will never purchase a Tesla."

• 1:38Peter Shamshiri?

  They just released their quarterly results, and things are not good.

• 1:43Michael Liroff?

  Yeah.

• 1:44Peter Shamshiri?

  Not good over at Pelon HQ. Rough week for our boy. Lost the election in Wisconsin, and his company...

• 1:53Peter Shamshiri?

  Sucks ass. His company is dumb as hell and not doing well.

• 1:56Michael Liroff?

  Yeah.

• 1:57Speaker 04

  You mean the car dealership commercial in front of the White House, which included the president, didn't help Tesla sales?

• 2:04Michael Liroff?

  Yeah.

• 2:05Speaker 04

  I'm grateful for it because it did give us, it's all computer.

• 2:09Michael Liroff?

  It's all computer.

• 2:10Peter Shamshiri?

  It gave us Tesler. I love Tesler.

• 2:14Speaker 04

  Yeah.

• 2:15Peter Shamshiri?

  So good. So good.

• 2:16Speaker 04

  It gave us Tesler. It gave us, wow, it's all computer.

• 2:21Peter Shamshiri?

  Yeah.

• 2:22Michael Liroff?

  What's that line from, I think it's like 2010, the sequel to 2001: Space Odyssey, where like it's, wow, it's full of stars or something, but it's like, wow, it's all computer. Yes.

• 2:35Peter Shamshiri?

  Look, we haven't seen the full impact of the Trump press conference. Maybe MAGA chuds will start driving Teslas. I'm sure that some of them will, you know?

• 2:45Speaker 04

  For sure.

• 2:46Peter Shamshiri?

  But apparently, just publicly being one of the world's great scumbags is neither a good political nor business strategy.

• 2:57Michael Liroff?

  And it can't be overcome by selling very terrible products.

• 3:05Peter Shamshiri?

  I think we're at a fascinating inflection point with Elon where what he's done historically to help his businesses and his image is appear in public and say things and make big crazy promises. But now that everyone sort of thinks he's a lying piece of shit.

• 3:22Michael Liroff?

  Yeah.

• 3:23Peter Shamshiri?

  That's counterproductive.

• 3:25Michael Liroff?

  Yeah.

• 3:25Peter Shamshiri?

  And yet it's the only strategy he knows. And so I think we're entering a sort of death spiral phase, if that makes sense.

• 3:32Michael Liroff?

  I hope.

• 3:32Speaker 04

  Yeah. All he knows is do drugs, tell lies. That's Elon.

• 3:37Michael Liroff?

  Well, I'm sure if he just puts another guy in a little green vinyl body suit and is like, puts him on stage and is like, we're gonna have robots. Here's a guy dancing around in a suit and we're, we can all just pretend he's a robot. That'll do it. That'll turn the stock price around. No, the stock price is doing fine, actually.

• 3:57Peter Shamshiri?

  Not to go too far on Elon, but that's the thing about his weird promises is they used to make sense. You know, it was sort of like full self-driving. Sure.

• 4:05Michael Liroff?

  Right.

• 4:05Peter Shamshiri?

  That's sort of the natural extension of what Tesla was doing.

• 4:08Michael Liroff?

  Or the battery stuff. The battery stuff.

• 4:10Peter Shamshiri?

  Yeah. You go from there into battery storage, robot taxis, all seemed natural. And now he's like, In a few years, we'll be making 100 million humanoid robots a year. And it's like, what are you talking about? What are you talking about? This is too much ketamine, bro.

• 4:25Michael Liroff?

  How many robots per family do you think we need?

• 4:30Peter Shamshiri?

  One per child.

• 4:31Michael Liroff?

  Yeah, exactly.

• 4:35Peter Shamshiri?

  All right. This week's case, Department of State v. Munoz. This is a case from just last year about the rights you have as a citizen when you have a spouse who's not a citizen and perhaps wants to come join you in the United States. Something that is extremely pertinent today, considering first, how many non-citizens married to citizens we're seeing snatched up and deported. And further, because there are implications for gay marriage and LGBT rights wrapped up in this case. Sandra Munoz is a citizen married to a non-citizen from El Salvador. I want to point out that Rhiannon just nodded when I said her name.

• 5:17Peter Shamshiri?

  Apparently, I have done a sufficient white boy saying a Spanish name.

• 5:21Speaker 04

  Yeah, there's no rolled R, but that's okay. We celebrate it nonetheless.

• 5:26Peter Shamshiri?

  I'll never be rolling an R.

• 5:29Peter Shamshiri?

  Don't let my mixed heritage fool you. I can't hit an accent for shit. All right.

• 5:36Michael Liroff?

  Unless it's a Long Island Italian accent.

• 5:39Peter Shamshiri?

  That's right.

• 5:40Speaker 04

  Right.

• 5:40Peter Shamshiri?

  Well, within the tri-state area, I'm a fucking expert. I'm a savant.

• 5:44Michael Liroff?

  Yeah. It's just like, the nuances of like Philadelphia Italian, very different.

• 5:51Peter Shamshiri?

  I can do South Jersey versus Philly versus North Jersey. It's crazy. But, but basic Spanish, no.

• 6:00Peter Shamshiri?

  So Sandra and her husband Luis, they get married and they try to get him a visa to come join her in the United States. He was denied with the consulate claiming that the denial was based on their belief that he was trying to enter the United States to engage in unlawful activity of some sort. However, they did not provide a specific basis for their conclusion. So Munoz sued, claiming that as a citizen, she has a constitutional right to be provided with a reason for her husband's visa denial. But the Supreme Court, in a six to three decision written by liberal hero Amy Coney Barrett. Says no dice.

• 6:42Speaker 04

  Yes. So yeah, let's start with like this process, them meeting each other and then petitioning the US government to allow Luis to enter the United States lawfully. So Luis Asensio Cordero entered the United States in 2005. When he entered the United States, he did so without documentation. Now, he met Sandra Munoz, a workers' rights lawyer from Los Angeles in 2008. They married in 2010. They had a baby. And in 2013, they began the process for adjusting Asensio Cordero's immigration status, adjusting his status from whatever immigration status

• 7:23Speaker 04

  he had previously. They decided, hey, let's get the process going legally to adjust that status. And so in this case, that means that Sandra Munoz filed a petition on behalf of her husband, basically saying, hey, this person now is an immediate relative. We've gotten married and let's get the immigration process going from here.

• 7:44Michael Liroff?

  Yeah. And so I think this case really illustrates that, like, you know, you've probably heard of or seen on TV, green card marriages and things like that. But it's, it's not simple. It's not easy. And like, this is the process, right? This is what the process for a green card marriage looks like. And it's really involved. It takes a long time. There are a lot of steps and you might not get it.

• 8:13Peter Shamshiri?

  Yeah.

• 8:13Speaker 04

  Yeah, none of this is automatic. So we're going to talk throughout about quote unquote, adjusting status. This is the legal term for a noncitizen to go through the process of getting some kind of legal immigration status in the United States. It's called adjusting your status. You adjust your status from noncitizen to immigrant, the legal definition of immigrant. You are allowed into the United States as an immigrant in various ways. Maybe it's a visa, other things. And then you can adjust your status from there. So because Asensio Cordero originally entered Without inspection into the United States, the government required him to return to El Salvador

• 8:56Speaker 04

  for processing this visa application at the consulate in El Salvador. To get his immigrant visa, to adjust his status, he needed to start back in El Salvador, which in 2015, he had not been to since 2005. However, if you enter into the United States without inspection, and then you leave, when you try to come back to the United States, you potentially face a bar to reentry. On that first time that you're trying to come back, you can be barred from reentering for up to three years. So before he left for El Salvador, the couple petitioned for and got DHS to waive that bar on reentry because of quote unquote "extreme hardship"

• 9:40Speaker 04

  that would be suffered if he were excluded. So DHS is saying, yes, go back to El Salvador. You have to do your visa application at the consulate there, and we are at least not going to bar your reentry outright.

• 9:55Michael Liroff?

  Because we get it, you're married, it's so be a hardship on your wife and...

• 9:59Speaker 04

  Exactly. So in April 2015, Asensio Cordero left California for El Salvador, and in May, went to the consulate in San Salvador to interview and begin the process for reentry and adjusting his status from there, submitting that visa application. But, an officer at the consulate denied that visa application, and the denial didn't include any reasons. It only cited to a single law that says that a person is inadmissible to the United States if a consular officer finds that someone seeking to enter the United States wants to do so in order to engage in illegal activity. Basically, this officer at the consulate saying no to Asensio Cordero's visa application,

• 10:44Speaker 04

  citing this law that says he can say no if he has found that Asensio Cordero seeks to enter the US to do crime. Now, Asensio Cordero has no criminal history in the US or El Salvador, and that reason actually was not articulated. The reason for believing that he was entering the US in order to do illegal activity wasn't articulated. No justification. Again, they are just given the law. That says the consular officer can make this decision on this basis. So the couple asked for reconsideration of the visa application multiple times. They got a congressperson to send a letter on their behalf, asking for the visa application to be reconsidered and approved.

• 11:26Speaker 04

  They provided a ton of other evidence of like Sandra's accolades at work, evidence of her husband's good character. All of this kind of stuff. Again, they just get the citation to the law. The government is just replying and saying, here's the law that says we can deny this. And their petition for reconsideration of the whole application was denied. Lots of process from here, but they basically take this to federal court. And it's only after suing in federal court that the couple finally received the reason for the denial of the visa application. The State Department said that that consular officer, Bakinsan Salvador, denied Asensio Cordero's application

• 12:08Speaker 04

  under that law because of his tattoos. Because Asensio Cordero has tattoos, which apparently led the consular officer to determine that Asensio Cordero was a member of MS-13 gang in Central America.

• 12:25Peter Shamshiri?

  Well, that's probably from his MS-13 tattoo, right?

• 12:28Michael Liroff?

  Right.

• 12:30Speaker 04

  Yeah, let's talk about the tattoos. What were the tattoos of? Asensio Cordero had tattoos of the Virgin of Guadalupe, a tribal pattern, paw print, dice and cards, and Sigmund Freud.

• 12:44Peter Shamshiri?

  Yeah. Sorry, sir, there's a law saying that you are too corny. You, you gotta go back.

• 12:51Speaker 04

  Yeah.

• 12:52Peter Shamshiri?

  This fucking dork.

• 12:55Michael Liroff?

  It's the Sigmund Freud tattoo, right? That's the MS-13 marker? That's the one.

• 13:00Peter Shamshiri?

  They love it.

• 13:01Michael Liroff?

  They love Freud.

• 13:02Peter Shamshiri?

  That's what they won't tell you about MS-13 is how much they love Sigmund Freud.

• 13:05Michael Liroff?

  Yeah, they're a very Oedipal gang.

• 13:07Speaker 04

  So this is years later, a couple of years into litigation, they finally get this reason. It's obviously bullshit. The couple appeals, they're in federal court now, so this goes up to the Ninth Circuit Court of Appeals. And the Court of Appeals actually sides with the couple, says, okay, the government finally provided a reason, but this isn't timely. This is still basically bullshit. But then, of course, the US government appeals, and that's how we get to the Supreme Court.

• 13:34Peter Shamshiri?

  So this is a slightly odd fight from a legal perspective because. The couple is saying, hey, we have a right to know what your reason is for rejecting him. At this point, the government has provided a reason, and the fight is sort of about the scope of Munoz's rights. So, the technical legal argument here is about the 14th Amendment, which guarantees that no person shall be deprived of life, liberty, or property without due process of law. And the way that this is interpreted is that there are certain fundamental rights under the Constitution, and you can't be deprived of those rights without some due process. So Munoz says, hey, this is relevant to my liberty.

• 14:19Peter Shamshiri?

  I have a fundamental right to marriage. That's Obergefell v. Hodges, right? That's something the Supreme Court has held recently. I want to live with my husband in the United States, and that means when the consulate denies his visa, they at least owe me a thorough explanation. That's all she's saying here. The majority is written by Amy Coney Barrett, so let's go over some of the primary points. She says, here Munoz invokes the fundamental right to marriage, but she actually claims something more distinct, the right to reside with her non-citizen spouse in the United States. And then Barrett applies the history and tradition test that this court is so fond

• 15:04Peter Shamshiri?

  of. Under that test, for something to qualify as a fundamental right under the Constitution, the right must be rooted in our history and tradition. But Amy says, historically, the government has been able to tightly regulate immigration, so this right can't be fundamental. Yeah. So, very amateur magician sleight of hand here. Munoz says, hey, I have a fundamental right to marriage under the 14th Amendment, and the government is interfering with it. And that puts the conservatives on the court in a bit of a bind, because she's right. The court has recognized that marriage is a fundamental right under the 14th Amendment, but conservatives don't really like that. They aren't...

• 15:48Peter Shamshiri?

  Aren't fans of the 14th Amendment at all. And they're certainly not fans of the idea that it protects marriage, because that's what led to the legalization of gay marriage nationwide.

• 15:56Speaker 04

  Yeah.

• 15:57Peter Shamshiri?

  So what does Amy Coney Barrett do? She says, well, this isn't really about marriage. It's about the right to reside with your non-citizen spouse in the United States. Which is a bizarre way to frame it, right? Because if there's a right to marriage, call me a dreamer, but I imagine it would include the right to live with your spouse in the country.

• 16:20Michael Liroff?

  Right.

• 16:20Speaker 04

  Yeah, yeah. And this question is about, like, is this burdening the right to marriage? She has a right to marriage. Citizens have a right to marriage. And so does this burden the right to marriage? Not, does this burden your right to reside with your non-citizen spouse in the United States? Which the conservatives are gonna be like, no.

• 16:40Michael Liroff?

  Yeah, obviously, like, cohabitation is a part of marriage, right? Oftentimes, that was the thing that it was like, history and tradition, they would go hand in hand. You wouldn't live together until you were married. Like, and then, once you were married, you would live together. The other thing, reading this, is just like, especially doing this podcast, is like, it just starts to feel so stale. Like, the moves conservatives make, they're like, oh, we don't like the way this fundamental right is being used here. So we're going to redefine the right very narrowly. How many fucking episodes have we done where they make this?

• 17:18Speaker 04

  Yeah.

• 17:18Michael Liroff?

  Do they have, like, a little note card with, like, five different rhetorical moves that they have? And that's it? And they just, like, every conservative justice gets handed the note card and it's like, here are your big go-to moves, you know? And that's it.

• 17:33Peter Shamshiri?

  Right.

• 17:33Speaker 04

  Yeah, yeah.

• 17:34Peter Shamshiri?

  This reasoning reminds me of, like, if there's a law that says you can't publish a newspaper. And then someone was like, hey, that infringes my freedom of speech. And the court's like, well, it's not really about speech, right? It's about your right to print and distribute a newspaper. It's like, yeah, those are related.

• 17:52Michael Liroff?

  Yeah.

• 17:52Peter Shamshiri?

  One implicates the other, right? You can't just get around it by being like, actually, you're not really talking about marriage when you think about it. Barrett talks about how the government has historically had the right to regulate immigration, and historically, that right is relatively unfettered. But she sort of dodges around the fact that all Munoz is asking for here is an explanation from the government as to why the government is rejecting her husband's application, right? Like, that's the requested remedy.

• 18:19Michael Liroff?

  Right.

• 18:20Speaker 04

  Yeah.

• 18:20Peter Shamshiri?

  Does that really impede the government's ability to regulate immigration in a material way? They're creating a framework where keeping someone's spouse out of the country doesn't infringe upon your fundamental right to marriage, but asking the government a question infringes on their ability to regulate immigration. It's just silly.

• 18:41Speaker 04

  Yeah.

• 18:41Peter Shamshiri?

  Munoz made another argument, sort of a more technical argument, that she has a due process right to know what the government's reason for rejecting her husband's visa application is. Essentially, there's a guarantee under the Constitution of due process, right? By not providing her with the reason for the denial of the application, the government, she says, is violating that guarantee. Now, this is slightly tricky because she is not technically a party to the proceeding, right? Her husband is, and he's not a citizen. So it's harder for her to say that this violates her due process rights. And that's what Barrett argues. Barrett says, "This, quote, 'would usher in a new strain of constitutional law, for

• 19:23Peter Shamshiri?

  the Constitution does not ordinarily prevent the government from taking actions that indirectly or incidentally burden a citizen's legal rights.'" So think about this phrasing she's using. She says the Constitution does not, quote, "ordinarily prevent the government from taking actions that indirectly burden a citizen's rights," which means that sometimes it does, right? That's what ordinarily means.

• 19:44Speaker 04

  Yeah. Yeah, sometimes it's important enough that it does.

• 19:47Peter Shamshiri?

  And if it sometimes does, then how in the same breath can you say that this would usher in a new strain of constitutional law, right?

• 19:57Peter Shamshiri?

  As the dissent points out, there's a precedent for the idea that the denial of a visa can implicate a different citizen's rights. So Barrett's rhetoric about how this would be like a big deviation from our constitutional norms, mostly bullshit. There was this case in the early 70s where a foreign speaker was trying to get a visa to speak in the United States and some citizens, after his visa was denied, said, hey, we have a First Amendment right to hear him speak, right? And Barrett tries to like create this technical distinction being like, well, that wasn't a due process case, that was a First Amendment case, mostly just bullshit that you don't need to think too hard about. I want to point out that Barrett is arguing

• 20:39Peter Shamshiri?

  that this is an indirect violation of Munoz's rights, right? But I don't really think it is. Munoz is pointing out that there's a constitutional right to marriage. Her husband's ability to live in the country is at issue. In my mind, that directly affects her, right? Even if she's not a party to the proceeding. And a simple way of looking at it is that if there's a right to marriage, then she should be treated as a party to the proceeding in some respect, right? She should have an interest in the proceeding, some kind of due process interest in the proceeding.

• 21:06Michael Liroff?

  She should be able to intervene, essentially, in a legal sense. Like, she should be able to be an intervener and be in, yeah.

• 21:13Speaker 04

  And Barrett's argument that due process for Munoz isn't implicated here doesn't make sense when, again, you go back to the substantive right that Munoz is arguing is being burdened, the fundamental right to marriage. If you have a substantive right, what that implicates legally is that you have process when that right is burdened or taken away. That's in general, how constitutional law actually works, right? That you have a process for arguing that your constitutional rights were burdened or violated and that the government in some way has to

• 21:53Speaker 04

  respond. Any allegation or putting forward of your constitutional rights implicates directly some sort of due process requirement from the government.

• 22:04Michael Liroff?

  Yeah, it's crazy because it's like, this is just like, basic structure of courts and rights in the federal government stuff, right? This is like, stuff you, you learn in one L as a lawyer, like, and you're having to like, relitigate it. Like, from the ground up, like, the entire creation of the state, you know, is like, up for grabs again.

• 22:28Peter Shamshiri?

  Right.

• 22:29Michael Liroff?

  It's bizarre.

• 22:30Peter Shamshiri?

  Barrett's sort of saying like, well, Munoz doesn't have a procedural interest in the immigration proceeding. Like, it's a fact of nature.

• 22:39Michael Liroff?

  Right.

• 22:39Peter Shamshiri?

  But like, actually, that's a decision that the court makes.

• 22:42Michael Liroff?

  Right.

• 22:43Speaker 04

  Yeah, that's what you're holding.

• 22:45Peter Shamshiri?

  You can just say, right now, that she does.

• 22:47Michael Liroff?

  Right, yeah.

• 22:48Speaker 04

  Right.

• 22:49Peter Shamshiri?

  It's so fucking annoying, and I just don't think it makes much sense. If there is a fundamental right to marriage, then surely, then surely, it has some implications for people who are married to non-citizens. It's just so fucking dumb. Like, this is one of those things where, like, if you have a citizen spouse, it entitles you to all sorts of legal protections and benefits. And what the court is saying is that, like, if you have a non-citizen spouse, your marital benefits legally don't include the ability to know a little bit more about why they're not being allowed into the country.

• 23:28Speaker 04

  Yeah.

• 23:28Peter Shamshiri?

  Are you kidding me with this?

• 23:30Michael Liroff?

  Yeah. Also, Peter, you made me think of something when you said, like, this is a choice the court is making, right? Like, you can decide differently. There's something very similar going on with, you know, when they're like, well, historically, the government is, has wide leeway in determining who does and doesn't get visas, and who can and can't stay in the country, and blah, blah, blah. And it's like, yeah, it's true that historically, the court has given the elected branches lots of leeway there. Crazy leeway.

• 24:02Speaker 04

  Yeah.

• 24:02Michael Liroff?

  That's not mandated by anything, you know? We are a constitution of limited powers, enumerated powers. Do you know what's not an enumerated power in the constitution?

• 24:13Michael Liroff?

  Immigration, the border.

• 24:15Peter Shamshiri?

  Right.

• 24:15Michael Liroff?

  Like, you can ground it in the Constitution. You can say, you know, for example, oh, well, yeah, but the regulation of interstate commerce is something Congress can do, and that's clearly impacted by immigration and whatever. But that would mean that all of immigration law would have to be subject to the US Constitution. And the court doesn't like that. And so for 150 years, the court's been very handoff and been like, well, this is inherent to the sovereign. This is not something where we have a lot of things to say. And you can't just spend 150 years being like, well, the Constitution is weakly applied or not applied at all in this context. And then be like, well, historically, they get to do what they want here. So who are we?

• 24:59Speaker 04

  Yeah.

• 25:00Michael Liroff?

  It's like, who are we to say otherwise? You're precisely who can say otherwise. You're the fucking Supreme Court. Like, what are you talking about?

• 25:06Speaker 04

  Yeah.

• 25:07Peter Shamshiri?

  Right. They, they act like they are sort of like bound by the force of history.

• 25:10Michael Liroff?

  Right.

• 25:11Peter Shamshiri?

  No, not really.

• 25:12Michael Liroff?

  No.

• 25:12Peter Shamshiri?

  Not really.

• 25:13Michael Liroff?

  It's just made up bullshit. It's like, nowhere is that more true than in immigration law. It's just made up bullshit. It's like.

• 25:20Peter Shamshiri?

  And more than that, I mean, the court frequently talks about immigration and the history of immigration as like a history of the federal government having sort of unfettered discretion. Right? But if you really want to talk about history and tradition, you could also talk about what they used that discretion to do 100 years ago versus now. Because 100 something years ago, you could just show up at Ellis Island, and then they just made your name a little wider and let you in.

• 25:49Michael Liroff?

  Yeah.

• 25:49Peter Shamshiri?

  And that was it. Right?

• 25:51Michael Liroff?

  That is what happened to me. My dad's side of the family. It was Lipiansky. And it just, they were like, Liroff. That was it.

• 25:59Speaker 04

  What about Liroff?

• 26:00Peter Shamshiri?

  What about Liroff? Yeah. Nice. You know what we think sounds better?

• 26:06Peter Shamshiri?

  You know, so when they, when they talk about history and tradition, they're talking about it in this very narrow way. And talking about it to sort of justify the federal government's sort of like completely unfettered power in this area. There are completely different ways to think about history and tradition that don't jive with this at all.

• 26:24Michael Liroff?

  Yeah. So Gorsuch has a concurrence. It's very short and sweet and kind of missing the point, I think, a little bit. But he's just like, look, they're asking for an explanation. The government gave him an explanation.

• 26:40Speaker 04

  The tattoos.

• 26:41Michael Liroff?

  Yeah, the tattoos. They can now formulate a court case or whatever, or some sort of appeal based on that explanation if they so desire. So what are we doing here? That enough is to overrule the Circuit Court of Appeals, saying that they, you know, they haven't gotten satisfactory relief and move on. It's almost, it's close to saying, you know, this should be dismissed as improvidently granted. I think he's saying that they shouldn't because he's kind of saying that Circuit Court of Appeals should have sort of dismissed this as improvidently granted, essentially. Like, like, look, what do you want? You asked for an explanation? You got it? That, why are we still here? You know?

• 27:24Peter Shamshiri?

  And Sotomayor basically agrees in her dissent with the concurrence, right? It's just that Gorsuch was sort of concurring so that he didn't have to agree with the dissent about gay marriage stuff, which we'll get into in a second.

• 27:36Michael Liroff?

  Right, right.

• 27:37Peter Shamshiri?

  But I think Gorsuch and Sotomayor in her dissent, to some extent, are correct in like the narrow sense that Munoz has gotten what she asked for here. She's gotten the explanation from the government, right? What makes this decision shitty is that the court doesn't stop there. They sort of limit the boundaries of the right to marriage, right? Limit it in a way that impacts both that right to marriage and your rights vis a vis your non-citizen spouse.

• 28:09Michael Liroff?

  Yeah, the remedy they requested has been granted, but but sort of has it like, you want an explanation? For a reason, right? What you want is a meaningful opportunity to contest this decision. And like, that, it's less clear to me that that exists, right? And whether or not her right to marriage is protected if she doesn't have a meaningful chance to contest this. Obviously, without any information, she has no meaningful chance. With this information, it's still not clear to me whether she has a meaningful opportunity.

• 28:49Speaker 04

  Right. And meaningful opportunity, meaning meaningful, real due process.

• 28:53Michael Liroff?

  Right.

• 28:53Speaker 04

  I think this is a tricky case on the law, and I think it's exactly right, Peter, that what's so evil and ridiculous about the majority opinion is that it goes beyond what needed to be held in this case, the kind of like narrow holding that the court could have had, which is, hey, Sandra Munoz, you got your reason from the government on why that visa application

• 29:15Peter Shamshiri?

  Yeah.

• 29:16Speaker 04

  was denied for your non-citizen spouse. That's it.

• 29:18Peter Shamshiri?

  Yeah, it took them longer than you wanted, but at the end of the day, the issue is moot.

• 29:23Speaker 04

  Right. But they don't do that. They go beyond and chip away at the fundamental right to marriage, say that Munoz does not have a procedural interest in this proceeding. And what Sotomayor does in dissent is say, whoa, whoa, whoa, whoa, whoa, you could have made the decision on those narrow grounds. But instead, what's really wrong with this opinion is that you completely deny strong precedent, both on the fundamental right to marriage and on these due process rights for citizens in terms of proceedings involving their non-citizen spouses. So Sotomayor's dissent is based on this fundamental right

• 30:06Speaker 04

  to marriage and then a case called Mandel. So Mandel says that denial of a non-citizen's entry into the United States, it can burden a citizen's constitutional rights. And so even though in some situations, the government doesn't have to give a reason for the denial of entry to a non-citizen, when a citizen's constitutional rights are burdened, they do. That case directly says that. Sotomayor is saying, we have this case.

• 30:32Peter Shamshiri?

  Right. That, by the way, is the case about the, the visiting professor, right? Who, by the way, was like a commie. Guess you're wondering why they denied his visa in that case.

• 30:42Speaker 04

  Yeah, exactly. Sotomayor says, look, we have this case. What are you doing? And so this decision, Munoz, is basically overturning Mandel without saying that it does. Right. It says that citizens don't have due process rights when a noncitizen is denied entry without a reason. Again, I just want to highlight, I think, like, I was frustrated reading this dissent. I agree with Sotomayor, right? Like, the implication on the fundamental rights to marriage, the implication on citizens' due process rights as it relates to their noncitizen spouses, like, those are all really important. But it was kind of like I was reading the frustrating position that Sotomayor was in,

• 31:24Speaker 04

  that at the end of the day, the relief that this couple was asking for had been granted. The reason that his visa application was denied was given to them. That actually indicates what is over this entire case, which is how fucked up immigration law is. And how constraining and different a world immigration law is from all of our other law and how we think about, like, rights. Sotomayor, I think, does a good job with going through, like, step by step, what noncitizens and their citizen spouses have to go through to adjust that noncitizen spouse's, like, immigration status, trying to get to legal permanent resident, all of that stuff.

• 32:09Speaker 04

  You know, Munoz and her husband had to go this consular processing route, which means, like, Asensio Cordero had to leave the United States and do this application process at a consulate in El Salvador because he had not entered the United States with inspection. And that burdened them extra. He had to leave the country. He didn't have to be given a reason for the denial of his application. Whereas if a noncitizen does enter the country with inspection, they can go through that visa application process in the United States. They do not have to leave first. They can go through that application process in the United States, and they have more rights as to that process. They do.

• 32:54Speaker 04

  Have to be given a reason if they're denied. So this situation, immigration law, put an extra burden on this couple. And Sotomayor goes through in a really detailed way what this long process is like. And the hurdles that they and non-citizens in general like have to jump through to adjust their status. And Sotomayor then also expands on the fundamental right to marriage. And if the fundamental right to marriage means anything, then it would mean that the denial of entry for a non-citizen spouse implicates, in a very basic way, a citizen's right to marriage.

• 33:36Peter Shamshiri?

  Right.

• 33:37Speaker 04

  And the big attack here on the majority opinion is why they brought in the fundamental right to marriage and said that this is like completely unrelated.

• 33:48Peter Shamshiri?

  Right. Yeah, I mean, I think it's worth pointing out that the relief that Sotomayor is pointing to is inadequate. I mean, she's right that the majority goes way too far here and sort of stomps on these constitutional rights. But if there's a fundamental right to marriage in this country, and the government is saying that your spouse cannot even enter the country to live with you, due process should require more than just giving you an explanation.

• 34:20Michael Liroff?

  Right.

• 34:20Speaker 04

  Yes, right. That's what I'm frustrated with in Sotomayor's opinion. Go further. Go further.

• 34:26Peter Shamshiri?

  You should have the right to challenge it.

• 34:27Speaker 04

  Yes, yes.

• 34:29Peter Shamshiri?

  You should have the right to challenge it, right? That's what a constitutional right is. You should be able to validate it in a hearing.

• 34:34Michael Liroff?

  A meaningful chance to challenge it.

• 34:37Speaker 04

  Right.

• 34:37Michael Liroff?

  That is, right?

• 34:39Speaker 04

  Yes.

• 34:39Michael Liroff?

  That's the whole point of having the reason, like the reason that you want this explanation so you can formulate a challenge to this decision.

• 34:50Michael Liroff?

  In a forum where you have a meaningful chance to prevail.

• 34:54Peter Shamshiri?

  Right. So that when the government says, oh, we think you're affiliated with MS 13 because you have a dice and Sigmund Freud tattoos, you get to take that into court and be like, look at this fucking bullshit.

• 35:05Speaker 04

  Exactly.

• 35:06Michael Liroff?

  Right.

• 35:06Speaker 04

  Exactly. That is what due process means. The clause says the government can't take away life, liberty, property without due process, right? In this liberty interest, in the liberty that is guaranteed by the due process clause, it has been interpreted to include the fundamental right to marriage. The government cannot burden that right without meaningful due process. That's what this means.

• 35:31Peter Shamshiri?

  That's where Sotomayor just kind of falls short. She's right that the majority fucks up the fundamental right of marriage analysis. But you see in this case, the imbalance between the conservatives and the liberals, right? The conservatives are like ambitious. They're like, how can we leverage this case to damage the right to marriage?

• 35:55Michael Liroff?

  Right.

• 35:56Peter Shamshiri?

  To damage the 14th amendment substantive due process right that we don't like. And then the liberals are like, well, yeah, there's this case from 1972 that establishes the precedent here.

• 36:08Speaker 04

  Says exactly that.

• 36:09Peter Shamshiri?

  If the conservatives are putting forward their like affirmative vision of the constitution, why can't you?

• 36:13Speaker 04

  Yes.

• 36:14Michael Liroff?

  Yeah.

• 36:15Speaker 04

  Yes.

• 36:15Michael Liroff?

  And why can't it include one where, you know, immigration doesn't take place in either like a constitutional gray zone or just a constitutional black hole, right? Like

• 36:28Peter Shamshiri?

  Right.

• 36:28Michael Liroff?

  Our entire immigration law is built on the assumption that the constitution just either won't apply or will only weakly apply to government actions there, which is one of the reasons why it's so arbitrary, why it's so onerous, why it's so ridiculous, why it's so cruel, right? Like this is just

• 36:52Speaker 04

  Yeah.

• 36:52Michael Liroff?

  Like, think bigger, think bigger about what the constitution requires of the federal government here, like.

• 36:59Peter Shamshiri?

  Yeah.

• 37:00Speaker 04

  It's not just Mandel. It's not just this case, right? Say, we have Mandel, and in addition, I would push it further. Like, you're in dissent. Just say it.

• 37:09Michael Liroff?

  And not even close. Like, it's 6-3.

• 37:11Speaker 04

  Yeah.

• 37:11Peter Shamshiri?

  Right.

• 37:12Speaker 04

  It's 6-3.

• 37:12Michael Liroff?

  It's 6-3, and this is 2024. You know it's probably gonna be a long time before libs are in the majority. Like, what are you doing?

• 37:20Peter Shamshiri?

  Right.

• 37:21Michael Liroff?

  Like, this is...

• 37:21Speaker 04

  Yeah.

• 37:22Michael Liroff?

  Sotomayor could have retired and been replaced by someone younger and without chronic health conditions. She stayed on the court presumably to advocate for the things she believes are right.

• 37:35Speaker 04

  Yeah.

• 37:36Michael Liroff?

  This is what you're doing with your time? This is what you're doing with that opportunity? You gotta be fucking swinging for the fences, I think.

• 37:43Speaker 04

  Why not? There's no reason not to.

• 37:45Michael Liroff?

  Yeah.

• 37:46Speaker 04

  There's no reason not to.

• 37:48Peter Shamshiri?

  Just put out your affirmative vision of what the law and the Constitution should be. It's so fucking annoying. When this first dropped, a lot of people were like, wait, what are they saying about the right to marriage?

• 37:59Speaker 04

  Yeah, hold up.

• 38:00Peter Shamshiri?

  And, you know, what Sotomayor says is like, hey, when Dobbs dropped and you got rid of the right to abortion, you guys promised that gay marriage was safe, right?

• 38:11Michael Liroff?

  Yeah.

• 38:11Peter Shamshiri?

  And now, you're limiting the right to marriage. So, ooh, it doesn't really feel like you were being honest. And, you know, just to take a step back, under like, a very slightly more liberal court, we had seen the expansion of the marriage right. And you can envision a world where you just see that sort of move into other spheres. This right has been recognized, and so how does this right interact with the immigration process, right? And then a court would reckon with that, right? And what's happening here is that the court is finding a way to pretend that the right to marriage doesn't exist at all.

• 38:52Peter Shamshiri?

  They're just finding a way to reach the same conclusions they would if there was no right to marriage.

• 38:59Speaker 04

  Exactly.

• 38:59Peter Shamshiri?

  And that's, you know, a very clear step toward, hey, by the way, there just isn't a fundamental right to marriage in the 14th Amendment and gay marriage not protected nationwide.

• 39:12Michael Liroff?

  Yeah, and I do think, I've been thinking about this. I've been trying to think about how to conceptualize this, but like... I think it's easy to imagine this as a tension in the conservative movement. It's like, well, we care a lot about marriage and the sanctity of marriage, but also we care about keeping Latinos with dice and cards tattooed on their arm out of the country. And how are we going to reconcile those two important values in this case? But it's not actually a tension here because like, think about how segregationists responded to having the public square desegregated in the 50s and 60s, right?

• 39:56Michael Liroff?

  They said, well, fuck this, we're leaving, we're going to all white suburbs, where we can send our kids to all white schools, we're living in areas with racial covenants. We are defunding desegregated things like public pools and other public places. We don't want anything to do with it. All right, if we have to share it, we would rather see it fucking burn.

• 40:20Speaker 04

  That's right. Yeah.

• 40:21Michael Liroff?

  And I think that's a good way to think about the conservative approach to marriage now. For a good 20 years, they were like, we don't have to share marriage with those nasty fucking queers. We don't want to. And now the court said they have to share it and they were like, fuck that, fuck marriage. Like, it doesn't mean shit.

• 40:43Speaker 04

  Right. Because to us, we've always had it.

• 40:46Michael Liroff?

  Yeah.

• 40:46Speaker 04

  We've always had it and y'all expanded it to include other people and we don't like that. So we will always have it. We'll chip away at the right. It doesn't matter. We've always had it no matter what. They're not afraid of their right to marriage being chipped away. Right? They're not afraid of their right to live where they want, to engage in the public square. They're not afraid of that being taken away.

• 41:07Peter Shamshiri?

  Yeah. So one thing we can sort of drill down on a little bit here, because I think if you're a layperson listening to this, or even a lawyer who just doesn't deal with immigration law. You might think like, why if you're an immigrant, does marrying a citizen provide you like no legal protections? Right?

• 41:27Speaker 04

  Yeah.

• 41:27Peter Shamshiri?

  And this is essentially why, that the court treats it as your own individual proceeding. And the fact that you're married, in the eyes of the court, doesn't do anything to grant anyone else any additional rights, nor does it grant you much. It's sort of like the atomization of everyone's rights, right? Everyone's rights become their own standalone thing. And you don't really have, in the eyes of the court, rights as a couple. And as a result of that, they can just treat you like you have no genuine connection to this country, right?

• 42:03Peter Shamshiri?

  It's very bizarre that someone who is married to a citizen doesn't have like a very streamlined process for getting a visa, right? They should be fucking handing those things out like candy on Halloween. Sorry. Conservatives will freak out about green card marriages or whatever, but those are one in a million and people get married to non-citizens all the time. And it just, I'm sorry, it just sort of violates my basic understanding of human dignity to say, you can't live together here, right?

• 42:39Michael Liroff?

  Yeah.

• 42:39Peter Shamshiri?

  You better go to El Salvador and hope that they don't have the same laws we do, because then you couldn't live together there either.

• 42:46Michael Liroff?

  Right.

• 42:46Peter Shamshiri?

  What are we fucking doing?

• 42:47Speaker 04

  Yeah, yeah. I go back to this case really being an example, even though it's, even though immigration law is not discussed, this case being an example of how fucked our immigration laws are. It's what got this couple to this position, that this process was the fucked up process that it was. Peter, you talked about like how, you know, marrying, if you're a non-citizen, marrying a citizen doesn't really help you, it doesn't give you those rights. This case makes it so that the inverse is true, though. If you're a citizen with certain rights, marrying a non-citizen actually has a negative

• 43:20Michael Liroff?

  Yes.

• 43:21Speaker 04

  effect on your rights.

• 43:22Michael Liroff?

  Yeah.

• 43:22Speaker 04

  Right? It takes away some of your rights.

• 43:24Peter Shamshiri?

  I do think this is the mathematically correct way to think about this. This is a theory that I came up with in our group chat 20 minutes before we recorded.

• 43:32Michael Liroff?

  Yeah.

• 43:33Peter Shamshiri?

  Being an immigrant means you have negative constitutional rights, which means that if you marry a citizen.

• 43:38Speaker 04

  You don't have due process, you don't have right to marriage.

• 43:41Peter Shamshiri?

  Their constitutional rights decrease.

• 43:43Michael Liroff?

  Right.

• 43:44Peter Shamshiri?

  That's what we're seeing here. I think that is just algebraically accurate.

• 43:50Michael Liroff?

  Yes.

• 43:50Peter Shamshiri?

  I believe that that's right. You can teach that in ninth grade and it would be, it's sturdy. Yeah, I think that's what's like happening here. It's like the rights that you would expect as a citizen, when you marry someone, just decrease when that person is an immigrant. There's no, there's no way around it. It's negative rights.

• 44:12Michael Liroff?

  Yeah. So changing gears a little bit, I talked a bit just a minute ago about the pathologies of sort of conservatives and sharing things they value with people they dislike. We should talk a little bit about the pathologies of liberals as well and how that shapes the future of immigration law because it's worth, you know, noting that the timing on this, right? Like the, and the government here, this was the Biden administration.

• 44:41Speaker 04

  Yes.

• 44:41Michael Liroff?

  Joe Biden, you can argue, at least domestically, the best thing he ever did was, you know, say on camera that Barack Obama supports gay marriage, which like ushered in a whole cultural shift and political shift and change in litigation strategy and all this stuff that led to the recognition of gay marriage. And I think a much broader acceptance of LGBTQ people in general in elite circles and throughout American society. Great thing he did.

• 45:14Peter Shamshiri?

  Yeah, probably accidental, but.

• 45:16Michael Liroff?

  Yeah. I mean, they, what is it, the Kinsley gaffe, when a politician accidentally speaks the truth, sort of thing?

• 45:23Peter Shamshiri?

  Yeah, yeah.

• 45:24Michael Liroff?

  And his solicitor general is arguing here, you know, for a case that should be moot, saying, well, it's not moot because we want to make clear, we didn't even owe her this fucking explanation, you know? We didn't owe her shit. That's their litigation position here, the fucking Biden administration. Like, so this is this pathology on the left that like. The left of center in this country, not like the ideological left, that like, oh, you know, people just, they don't like immigrants. And so we have to sort of follow the public mood and, and we can't be seen advocating for immigrants or conceding to

• 46:08Michael Liroff?

  immigrants or welcoming in immigrants, especially from those countries. You know, the ones, Central, South America, the Middle East. We don't want it.

• 46:20Speaker 04

  Haiti.

• 46:21Michael Liroff?

  And it's just like, no, like you can, you can be better. You can argue on behalf of people and you can try to change the public opinion. Like you could try to change the public mood. And now we're living in this world where it's been this sort of one-way ratchet, right? Where Republicans pull right and more reactionary Democrats do shit like this, right? Like this case and concede all the rhetorical points. And, you know, if you listened to our Patreon episode last week, you know, the fucking horrors that has wrought, just sending people to die in concentration camps.

• 47:02Peter Shamshiri?

  Right. And, and think about the people like Mahmoud Khalil, who have citizen spouses, right? What might have happened if there was a framework where those spouses had some legal interest in their presence in this country?

• 47:20Michael Liroff?

  Yeah.

• 47:20Peter Shamshiri?

  Right? All of a sudden, maybe disappearing someone off the streets is a little bit harder for the government to do.

• 47:26Speaker 04

  Yeah. And a year ago, the Supreme Court said, no.

• 47:30Peter Shamshiri?

  Right. And I mean, this is ground again, that like Democrats have been seeding for years. But you could imagine a framework where a spouse just has a right to a hearing in these cases. And then bang, you can't do what you did to Mahmoud Khalil.

• 47:48Michael Liroff?

  Right. I do think like, yeah, this case came down 6-3. It wasn't even 5-4, right? Like, In last spring, which means it was before there was mass deportation now signs at the Republican National Committee, right? This was before Trump was sending people to a concentration camp in El Salvador. This was before Trump started hinting that he might use troops to secure the border domestically. Like, all this shit has happened since then, and a lot of people are putting a lot of faith in the courts to slow or stop it. But like, in immigration? In the immigration context?

• 48:33Michael Liroff?

  Fuck, I am not confident at all that the court is gonna be any impediment, right? And so it's like, what is it gonna take for some political leader, for a Supreme Court Justice, for, you know, a House Minority Leader, somebody, to be like, enough is a fucking enough? Like, we have let this fester in our constitutional order for far too long, and it has enabled far too many abuses. And we can be better. We can be better as a people, as a party, as an ideological movement, as a country. We can be better than this. We need to be.

• 49:23Peter Shamshiri?

  Next week, United States Visa Beta, case from a few years ago about state secrets. What secrets the government can withhold from the courts.

• 49:33Michael Liroff?

  What were those secrets in this case? Torturing someone.

• 49:37Peter Shamshiri?

  The secrets are usually torture. That's the key to the state secrets doctrine. Follow us on social media at 54pod, subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

• 49:59Michael Liroff?

  Bye. Bye, love you. I don't love you, but I am very fond of you.

• 50:18Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/54pod.

• 50:59Peter Shamshiri?

  Do you guys think that we should change the name of the podcast to Six to Three?

• 51:05Speaker 04

  Shut up. Five years I've been here. Five years.