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David French: The Birthright Citizenship Ruling Should've Been 9-0
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TPS Ruling: Legally Constrained Cruelty
At 10:18 · chapter starts 6:30
The TPS ruling draws out one of the episode's sharpest analytical tensions: French and Miller agree the Trump administration is being 'unspeakably cruel' and 'blatantly racist,' but the law they're exploiting was built to enable exactly this. [1] — David French "The TPS statute is congressional malpractice — it handed the executive branch unlimited discretion to revoke status and then explicitly bar…" 09:03 The statute grants enormous executive discretion to revoke TPS status and then explicitly bars courts from reviewing that decision — what French calls congressional malpractice at 11 on a 10-point scale. The legal path challengers tried — reviewing the process rather than the decision itself — was always an uphill argument. The racial animus question gets more complicated: the Supreme Court noted the administration has cancelled every TPS designation that came up for review regardless of nationality, which the majority used to argue neutral application. French then surfaces a striking inconsistency: in the Hawaii gun law case, the Court refused to credit a facially neutral 1865 Louisiana law because its real purpose was targeting Black citizens. But in the TPS case, it credited neutral application despite explicit racist statements. The asymmetry invites a Calvin-Ball charge — that constitutional principles bend to outcome preferences.
The TPS statute is congressional malpractice — it handed the executive branch unlimited discretion to revoke status and then explicitly barred courts from reviewing that decision. The cruelty of the Trump administration's actions is undeniable, but the law they're exploiting was written to enable exactly this.
The TPS statute explicitly bars judicial review of revocation decisions, which David French called 'congressional malpractice — an 11 on a scale of 1 to 10.'
Trump claimed the Slaughter ruling was 'the greatest increase in presidential power in 100 years,' overruling 90 years of precedent on independent agency heads.
The Slaughter ruling gives the president full control over independent agency heads — but simultaneously shrinks what those agencies can actually do. The next Democratic president can sweep out Trump's appointees on day one. The tradeoff: the post-Watergate regulatory architecture is mostly gone.
