0:00

Every day, thousands of Comcast engineers

0:02

and technologists like Kunlei put people

0:04

at the heart of everything they

0:06

create. In the average household, there

0:08

are dozens of connected devices here

0:10

in the Comcast family. We're building

0:12

an integrated and home Wi-Fi solution

0:14

for millions of families like my

0:16

own. It brings people together in

0:18

meaningful ways. Kunley and his team

0:20

are building a Wi-Fi experience that

0:23

connects one billion devices every year.

0:25

Learn more about how Comcast is

0:27

redefining the future of connectivity at

0:29

Comcast corporation.com/ Wi-Fi. This

0:31

This podcast is brought to

0:34

you by Progressive Insurance. Fiscalally

0:36

responsible financial geniuses, monetary magicians.

0:39

These are things people say

0:41

about drivers who switch their

0:44

car insurance to Progressive and

0:46

save hundreds. Visit progressive.com to

0:48

see if you could save.

0:51

Progressive Casualty Insurance Company and

0:53

affiliates. Potential savings will vary.

0:56

Not available in all states

0:58

or situations. podcast is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save. Progressive Casual insurance company and affiliates. Potential savings will vary. Not available in all states or situations. Hi,

1:04

I'm Dolly Lithwick and this is

1:06

Amicus Slates podcast about the Supreme

1:08

Court and the courts and the

1:10

law. To those of you who

1:13

are finding your way to our

1:15

humble show by way of Molly

1:17

Jungfasts' ringing endorsement on Blue Sky

1:19

last week, welcome. Come on in,

1:22

take off your coat, stay a

1:24

while, and to those of you

1:26

joining us because you're deeply worried

1:28

that democracy dies under the clique

1:30

lights as much as it ever

1:33

did in darkness, we see you

1:35

too. The imperial presidency is here

1:37

and it's in action and the

1:39

question is how much will the

1:42

courts push back on it? Because

1:44

a lot of the institutional actors

1:46

inside the government are for the

1:48

moment being muzzled pushed aside or

1:51

fired. This past week has been

1:53

one of shock and awe. and

1:55

boundless ugliness in the form of

1:57

a series of executive orders and

1:59

the release of violent convicted insurrectionists

2:02

at Donald Trump's command. The new

2:04

orders have fallen hardest on some

2:06

of America's most vulnerable and among

2:08

that population are immigrants, asylum seekers,

2:11

and others who had done nothing

2:13

more awful than believe the American

2:15

promise and believe in the American

2:17

dream. Among the 10 immigration-related executive

2:20

orders all hatched in the underground

2:22

dungeon of Stephen Miller and the

2:24

guys at Project 2025, and unleashed

2:26

in the first hours of his

2:28

presidency, Donald Trump raced to seal

2:31

borders against lawful migrants and to

2:33

crack down on undocumented immigrants already

2:35

in the United States, he threatened

2:37

to prosecute local officials for resisting

2:40

his edicts and supercharged the militarization

2:42

of immigration enforcement. This quick fire

2:44

scattershot of orders and actions this

2:46

week has been hard to keep

2:49

track of, requiring Herculean efforts to

2:51

sort the unlawful and the unconstitutional

2:53

from the awful but unworkable, and

2:55

that which is all of the

2:57

above and coming soon to a

3:00

church or a school or a

3:02

hospital near you. To help us

3:04

in this Herculean effort is Aaron

3:06

Reichland Melnick. Aaron is senior fellow

3:09

and former policy director at the

3:11

American Immigration Council, which is a

3:13

pro-immigrant non-profit aiming to defend immigrants

3:15

through litigation, advocacy, and more. And

3:18

if you are one of our

3:20

many new friends on blues guy,

3:22

you're going to want to give

3:24

Aaron a follow because his posts

3:26

are always... unbelievably helpful and clarifying.

3:29

And also somehow he went viral

3:31

on X this week for tweeting

3:33

about compassion. So yes, we are

3:35

in the upside down now. Before

3:38

I say anything else, Aaron, welcome

3:40

to Amicus. We've wanted to have

3:42

you on for a long time

3:44

and Holy Cow this week feels

3:47

like the week. Thank you for

3:49

having me. And yes, it is

3:51

an exhausting week where a lot

3:53

has happened a lot has been

3:55

put into place that may happen

3:58

and there's a lot that we

4:00

still don't know what will happen

4:02

with. So I thought we could

4:04

start with Bishop Marianne Edgar Budd

4:07

at the National Cathedral Prayer Service

4:09

and Compassion and that tweet of

4:11

yours. because it describes in some

4:13

sense this disconnect between the attitudes

4:15

of the vast majority of Americans

4:18

towards immigration in terms of their

4:20

own family members, their neighbors, their

4:22

friends, their co-worshippers, their co-workers, and

4:24

this incoming executives' threats and actions.

4:27

I ask you to have mercy,

4:29

Mr. President, on those in our

4:31

communities whose children fear that their

4:33

parents will be taken away and

4:36

that you help those who are

4:38

fleeing war zones and persecution in

4:40

their own lands. to find compassion

4:42

and welcome here. Our God teaches

4:44

us that we are to be

4:47

merciful to the stranger, for we

4:49

will all want strangers in this

4:51

land. So I wonder if you

4:53

could just tell us a little

4:56

bit about what it was in

4:58

that clip of the bishop, just

5:00

imploring Donald Trump to have some

5:02

compassion. What was that a trippler

5:05

for? When that clip went viral,

5:07

of course, you know, Bishop Budd

5:09

showed that mercy is still an

5:11

important part of the American public

5:13

discourse, and the idea of compassion

5:16

still has a lot of strength.

5:18

And Republican Representative Mike Collins stated

5:20

that he believed the bishop should

5:22

be deported for having the audacity

5:25

to ask President Trump to show

5:27

mercy. And my response was to

5:29

sort of highlight how far we

5:31

have fallen from the discourse that

5:34

we used to have in this

5:36

country around compassion mercy and justice.

5:38

These are not terms of weak

5:40

people. They are core to our

5:42

foundations as a country. They are

5:45

been written into are laws. They

5:47

are in fact an immigration law.

5:49

Immigration law contains multiple avenues for

5:51

compassion where people may be allowed

5:54

to stay in the United States

5:56

even if they are undocumented. And

5:58

that has always been the case.

6:00

And so I think what touched

6:03

a nerve is calling out this

6:05

anti-mercy, anti-compassion behavior as against the

6:07

founding principles of this country. I

6:09

think big disconnect that we're all

6:11

just sitting in. And Mark Joseph

6:14

Stern and I talked about this

6:16

earlier in the week when the

6:18

first executive order started coming down,

6:20

is this gulf between the announced

6:23

actions and the dictates of the

6:25

Constitution or the many statutes that

6:27

control how law is actually enforced.

6:29

And you know, earlier in the

6:32

week, I said, look, a lot

6:34

of executive orders are just kind

6:36

of letters to Santa. They don't

6:38

have any actual force. And we're

6:40

going to talk about that in

6:43

a second, but I think on

6:45

this question of asylum, we already

6:47

have CBS News reporting that border

6:49

agents are being deployed right now

6:52

to summarily deport migrants crossing into

6:54

the country without allowing them to

6:56

even ask for legal protection. At

6:58

the same time, there's actually no

7:01

longer any way to cross legally

7:03

into the country, because on Monday,

7:05

right after Donald Trump was sworn

7:07

in, the administration shut down the

7:09

CVP1 app, which through tens of

7:12

that. of migrants trying to navigate

7:14

a lawful way to enter the

7:16

country into limbo. So I think

7:18

what I'm trying to ask is

7:21

this question of how much force

7:23

did these, on the one hand,

7:25

these executive orders are just wish

7:27

lists, on the other hand, at

7:30

least in this context of immigration

7:32

and asylum, they're very much effective

7:34

and they're leading to action. on

7:36

the ground. Yeah immigration is an

7:38

area where the president does have

7:41

a lot of authority but immigration

7:43

is ultimately set to Congress. The

7:45

Constitution assigns the power of setting

7:47

rules relating to naturalization, to Congress

7:50

and not to the president, and

7:52

for the last couple hundred years,

7:54

that has been interpreted as meaning

7:56

that it is Congress that ultimately

7:59

gets to decide who can enter

8:01

the country and who cannot and

8:03

not the president. When the president

8:05

does get that authority, it's usually

8:07

because Congress has given the president

8:10

that authority and not because it's

8:12

an inherent aspect of the presidential

8:14

power. But Trump... doesn't agree with

8:16

that. And what he has already

8:19

said is that he can, in

8:21

his own view, simply suspend the

8:23

entirety of the Immigration and Nationality

8:25

Act. The law is passed by

8:28

Congress about how to treat people

8:30

taken into custody at the border.

8:32

And he has said that he

8:34

can simply sweep those aside and

8:36

order Border Patrol to turn people

8:39

away, despite the fact that they

8:41

have rights under international agreements that

8:43

the United States is part of.

8:45

And he says he can simply

8:48

toss that all aside under his

8:50

own power. So to some extent,

8:52

these things have already gone into

8:54

effect. And there is more to

8:57

come. There's a travel ban that

8:59

can come. Restrictions on legal immigration

9:01

are foreshadowed in the executive orders

9:03

and will be coming in the

9:05

future. And that's an area where

9:08

he does have a lot of

9:10

authority restricting legal immigration. But what

9:12

he can't do, and what the

9:14

courts are likely going to intervene

9:17

on, is the idea that he

9:19

can simply declare, I'm president, therefore

9:21

I don't have to follow the

9:23

laws if people are crossing our

9:26

southern border. So I'm hearing you

9:28

say that there's just this kind

9:30

of laissez mois, you know, I

9:32

am the president, I get to

9:34

supersede everything. The Constitution, every statute,

9:37

as you said, international law. And

9:39

in a strange way. By behaving

9:41

as though that is true, even

9:43

though it will all be tested

9:46

in the courts, there feels like

9:48

there's a bit of a knock-on

9:50

effect where entities are starting to

9:52

behave as though it's true even

9:55

if it's not yet. Yeah, and

9:57

we have already seen a number

9:59

of people who know better simply

10:01

acquiesce to this kind of attitude

10:03

towards constitutional authority and presidential authority.

10:06

Of course, when it comes to

10:08

things like his executive order to

10:10

strip birthright citizenship for millions of

10:12

non-citizens in the country, the Department

10:15

of Justice is defending this. They

10:17

have already filed legal briefings in

10:19

court arguing that the consensus for

10:21

centuries that birthright citizenship exists in

10:24

this country is not real and

10:26

can simply be tossed aside with

10:28

the stroke of a pen. So

10:30

there are people going along with

10:32

this. The imperial presidency is here

10:35

and it's in action and the

10:37

question is how much will the

10:39

courts push back on it? Because

10:41

a lot of the institutional actors

10:44

inside the government are for the

10:46

moment being muzzled pushed aside or

10:48

fired. Can we talk for a

10:50

minute about the purported legal authority

10:53

that underlies the president's claim that

10:55

he's just gonna on day one

10:57

effectively shut down the southern border?

10:59

Because there's a kind of a

11:01

weird mishmash of public health claims

11:04

and national security anti-terrorism claims and

11:06

of course the good old foreign

11:08

invasion claim. We knew that was

11:10

coming. Can you just walk us

11:13

through? What the basis of this

11:15

claim that there is a catastrophic

11:17

emergency at the southern border that

11:19

allows him to set aside existing

11:22

statutes and constitutional protections? Yeah, so

11:24

President Trump invokes three specific legal

11:26

authorities. Two of them are contained

11:28

with an immigration law. One of

11:30

them is His claim that as

11:33

president, he inherently can shut the

11:35

border whenever there is an invasion,

11:37

which is a pretty radical argument

11:39

considering, again, when the Constitution speaks

11:42

of invasion, everyone agrees who has

11:44

ever looked at this issue on

11:46

a legal basis that it refers

11:48

to a military invasion. a foreign

11:51

government. And even if you think

11:53

that there is an argument that

11:55

colloquially we are being invaded by

11:57

migrants, I would disagree with that,

11:59

but I can understand the argument

12:02

from a colloquial standpoint. very clear

12:04

that there is not a military

12:06

invasion at the border. And in

12:08

fact, the vast majority of migrants

12:11

who have crossed the border in

12:13

the last four years have voluntarily

12:15

turned themselves into law enforcement to

12:17

the Border Patrol and are asking

12:20

for protection. And I cannot think

12:22

of a military invasion in the

12:24

history of the entire planet that

12:26

began with people voluntarily turning themselves

12:28

into the law enforcement. of the

12:31

country to which they were invading.

12:33

So nevertheless, he makes a claim

12:35

first that under the Constitution, in

12:37

order to support the constitutional provision

12:40

that says the executive shall protect

12:42

the states against an invasion, that

12:44

he can suspend the physical entry

12:46

of individuals coming into the United

12:49

States. Now what that means as

12:51

a practical basis remains to be

12:53

seen. Separately, he invokes two provisions

12:55

of the Immigration and Nationality Act,

12:57

which authorize the president to suspend

13:00

the entry of individuals. One is

13:02

the travel ban authority, section 212F

13:04

of the Immigration and Nationality Act.

13:06

This is the authority that the

13:09

Supreme Court said gave him extraordinary

13:11

deference to suspend legal admissions into

13:13

the country, and the other is

13:15

a similar provision that operates for

13:18

restricting visas. The travel ban authority,

13:20

however, is already in effect at

13:22

the border. President Biden invoked this

13:24

authority in the past. President Trump

13:26

invoked this authority at the border

13:29

in his first term, but it

13:31

didn't do anything on its own.

13:33

The widespread agreement of the Trump's

13:35

administration first term and the Biden

13:38

administration was that this authority, when

13:40

invoked at the border, had to

13:42

operate along with another law that

13:44

let them use that authority to

13:47

restrict asylum. worked was that Biden

13:49

and Trump pushed out regulations saying,

13:51

if you cross the border in

13:53

violation of a presidential suspension of

13:55

entry, we are deciding in our

13:58

discretion not to grant you asylum.

14:00

And they had a law on

14:02

the books that says the attorney

14:04

general can set restrictions on asylum

14:07

that they deem necessary. So there

14:09

was a pretty clear legal fig

14:11

leaf. Now, and there are good

14:13

disagreements about how that authority was

14:16

exercised and whether that asylum restriction

14:18

was lawful. But nevertheless, they pointed

14:20

to a specific law and said,

14:22

this law authorizes us to suspend

14:24

asylum. These new executive orders do

14:27

not do that. They simply assert,

14:29

I have put the suspension in

14:31

effect under Section 212F. Therefore, I

14:33

am suspending not only asylum, but

14:36

I am declaring that people cannot

14:38

apply for any other benefit in

14:40

immigration law that might permit someone

14:42

to stay in the country. So

14:45

that could mean a visa. That

14:47

could mean applying for a green

14:49

card through a spouse. That could

14:51

mean applying for protection under the

14:53

Convention Against Torture. There are so

14:56

many other things in the law

14:58

that are not asylum that a

15:00

migrant might be eligible for. And

15:02

Trump is simply saying, I can

15:05

come in and with a stroke

15:07

of a pen, say every one

15:09

of these protections that Congress has

15:11

written into law are no longer

15:14

available for people. And that is

15:16

sweeping. He did not make this

15:18

claim his first time. I just

15:20

want to flag for our listeners

15:22

that this invasion claim that Aaron

15:25

is talking about, and the anti-terrorism

15:27

claims, these opened the door to

15:29

using the Alien Enemies Act of

15:31

1798. We actually did a show

15:34

about this back in October, and

15:36

we're going to post a link

15:38

in the show notes, because if

15:40

you haven't listened to that yet,

15:43

it is getting more chillingly relevant

15:45

by the day. But before we

15:47

get too deep into the statutes

15:49

and the rationales, Aaron, would you

15:51

give us a sense? of the

15:54

immigration landscape as Trump embarks on

15:56

his second term in office as

15:58

compared with his first? Oh, what

16:00

border crossings are... were at least

16:03

in December, we're still higher than

16:05

what President Trump inherited from Obama

16:07

in 2017. And so crossings are

16:09

down. They are significantly down from

16:12

December 2023, when the Border Patrol

16:14

recorded over 250,000 apprehensions that month.

16:16

In fact, they have now dropped

16:18

to under 50,000 a month. So,

16:20

you know, we are literally seeing

16:23

one-fifth. the number of border crossings

16:25

as there were a year ago,

16:27

and they have continued to drop

16:29

over the last couple of months.

16:32

And this is due to a

16:34

couple of things. In late December

16:36

2023, the government of Mexico agreed

16:38

to cooperate with the United States

16:41

to massively increase its own internal

16:43

enforcement, subjecting migrants to something known

16:45

as the merry-go-round, where migrants are

16:47

stuck in southern Mexico, and if

16:49

they try to travel north, they

16:52

get arrested, sent back to southern

16:54

Mexico. And if they try to

16:56

do it again, they get arrested

16:58

again, and sent back to southern

17:01

Mexico. You see why it's called

17:03

the merry-go. And so that combined

17:05

with the Biden administration's changes to

17:07

the procedure, which asylum seekers are

17:10

subjected to at the border, has

17:12

led to many more people being

17:14

denied the rights to seek protection.

17:16

And so, you know, President Trump

17:18

took office right now with border

17:21

encounters lower than they were when

17:23

he declared a national emergency in

17:25

January 2019, but Yes, it's true,

17:27

higher than they were when he

17:30

took office in 2017, and with

17:32

still hundreds of thousands of migrants

17:34

in Mexico, waiting for an opportunity

17:36

to enter the country legally. And

17:39

so of course, it is not

17:41

an emergency right now. Numbers are

17:43

significantly down, even though, yes, some

17:45

people are still trying to cross

17:47

the border for the last century.

17:50

More in a moment with Aaron

17:53

Reichland Melnick Senior Fellow at the

17:55

American Immigration Council. is sponsored by

17:57

Better Help. Is there a part

17:59

of your personal story you've been

18:02

wanting to revise in 2025? Every

18:04

January brings 365 blank pages just

18:06

waiting to be filled. Therapy can

18:09

help you write new chapters and

18:11

create the meaningful story you deserve

18:13

to live. If you're thinking of

18:15

starting therapy, give Better Help a

18:18

try. It's fully online, making therapy

18:20

more accessible, affordable, and convenient. Just

18:22

fill out a brief questionnaire to

18:24

get matched with one of Better

18:27

Helps network of 30,000 credentialed therapists.

18:29

Their therapists have a wide range

18:31

of specialties, but if you feel

18:33

like your matched therapist isn't a

18:36

good fit for you, you can

18:38

easily switch therapists anytime, at no

18:40

extra cost. Write your story, with

18:42

better help. This episode is brought

18:45

to you by NRDC. This episode

18:47

is brought to you by NRDC.

18:49

Our nation's environmental safeguards face their

18:51

gravest challenge ever. The new Trump

18:54

administration is moving quickly to dismantle

18:56

decades for our new Trump administration

18:58

is moving quickly to dismantle decades

19:00

of protections for our clean air,

19:03

water and public lands. The Natural

19:05

Resources Defense Council has proved it

19:07

can stop these attacks. NRDC filed

19:10

the first environmental lawsuit against the

19:12

previous Trump administration and maintained a

19:14

blistering pace, filing 163 legal challenges

19:16

and winning victories in nearly 90%

19:19

of resolved cases to protect wolves,

19:21

bees, and other endangered species, block

19:23

the Keystone Excel pipeline, regulate chemicals,

19:25

hazardous to our health, and more.

19:28

Now NRDC is launching the legal

19:30

fund to stop the Trump agenda.

19:32

For a limited time, all donations

19:34

will be doubled to help power

19:37

their strongest legal defense of our

19:39

environment yet. From climate protection to

19:41

endangered species, what we do now

19:43

will determine the world our children

19:46

inherit. Make your match gift at

19:48

nrdc.org/pot. podcast. Erin, I think the

19:50

other piece of the border story

19:52

that we have to touch on

19:55

is this militarization of immigration. President

19:57

Trump signed an order that seems

19:59

to have given the military a

20:01

pretty explicit role. in immigration enforcement

20:04

directed the Defense Department to come

20:06

up with a plan to quote,

20:08

seal the borders and maintain the

20:11

sovereignty, territorial, integrity, and security of

20:13

the United States by repelling forms

20:15

of invasion, end quote. I'm simply

20:17

a country lawyer, but this feels

20:20

like a violation of posse commutatus,

20:22

things that I learned about in

20:24

law school, about conscripting the military

20:26

into doing domestic policing. Am I?

20:29

wrong that this is a huge

20:31

dramatic move that kind of went

20:33

unnoticed? I don't think you're wrong

20:35

to be concerned about it, but

20:38

right now in the first few

20:40

days after these executive orders have

20:42

been signed, it is not... clear

20:44

yet what the military is going

20:47

to be doing at the border.

20:49

I think it's crucial for people

20:51

to know that the military has

20:53

been deployed to the US-Mexico border

20:56

for a decade now, deployed under

20:58

Obama. It had previously been deployed

21:00

under the Bush administration, and I

21:02

think the Clinton administration in the

21:05

past. And so there has been

21:07

a steady deployment of the military

21:09

at the border for quite some

21:12

time now. But... in the past,

21:14

everyone has agreed that the military's

21:16

main role at the border is

21:18

logistical support to the Border Patrol.

21:21

And so in the past, you'd

21:23

had active duty troops and national

21:25

guardsmen doing things like manning surveillance

21:27

cameras or mucking out horse stables

21:30

or doing paperwork, maybe driving trucks

21:32

for the Border Patrol to support

21:34

those efforts. And at this moment,

21:36

it is not clear whether the

21:39

new deployment at the border will

21:41

substantively change that. We have seen.

21:43

however, and a commitment to potentially

21:45

using military resources in ways we

21:48

haven't seen before, military cargo planes

21:50

being transformed into deportation flights, potentially

21:52

using military assets to detain migrants.

21:54

Again, details unclear at this moment,

21:57

but President Trump does assert the

21:59

military has a much larger role

22:01

than has previously been asserted. how

22:03

this interacts with the Posse Comitatus

22:06

Act is going to be worked

22:08

out, presumably over the next few

22:10

weeks or months. What are the

22:13

rules of engagement? Are they going

22:15

to be armed? There's been some

22:17

suggestion that for the first time

22:19

ever, military troops of the border

22:22

will be armed, but that has

22:24

not yet been officially confirmed. So

22:26

we are waiting to see. exactly

22:28

what this looks like. Is this

22:31

more of the same, but with

22:33

slightly more military resources sent over

22:35

to ICE and Border Patrol? Or

22:37

is this actually going to be

22:40

something a little bit more like

22:42

what Governor Abbott has been doing

22:44

in Texas with the Texas National

22:46

Guard? In Texas, National Guard troopers

22:49

are stationed at the border. They

22:51

are armed, and they have been

22:53

seen physically shoving back migrants into

22:55

the river. Is that what US

22:58

Army troops are going to be

23:00

doing? We don't know, but it's

23:02

a very real possibility. I feel

23:04

like I'm going to have a

23:07

subpart B to every question, which

23:09

is you need to let us

23:11

know at what point this is

23:14

a red flag, and it feels

23:16

like what you're saying is it's

23:18

just too soon, but certainly if

23:20

you see armed military at the

23:23

border, we're in a brave new

23:25

world, yeah? I think right now

23:27

the red flags are in the

23:29

process of going up the flagpole,

23:32

but we don't yet know exactly

23:34

what the flag looks like because

23:36

it's not blowing in the wind

23:38

yet. You know, there's a lot

23:41

of red on the flag and

23:43

it looks pretty bad as it's

23:45

going up, but it remains to

23:47

be seen whether it's just a

23:50

normal flag with a little bit

23:52

of a red tinge or whether

23:54

it's a full-blown red flag, things

23:56

are, you know, for alarm fire

23:59

fire right now. And in the

24:01

initial days after these executive orders

24:03

are being signed, before there's been

24:05

any litigation, before there's been any

24:08

court orders, before there's been any

24:10

public guidance on the military deployment,

24:12

we can raise the alarm about

24:15

the possibilities, but also caution people

24:17

that details are still yet to

24:19

come and we are waiting to

24:21

see exactly what happens. That's an

24:24

incredibly useful set point. from which

24:26

I think listeners want to start

24:28

to sit. I want to take

24:30

us away from the southern border

24:33

to kind of everywhere else, because

24:35

one of Donald Trump's promises is

24:37

to launch the largest domestic deportation

24:39

operation in American history, and this

24:42

includes so many things, including so-called

24:44

expedited removal, coupled with the expansion

24:46

of ices. ability to reach out

24:48

into sensitive areas like schools and

24:51

churches and hospitals. This is all

24:53

designed to make life very hard

24:55

for anybody who's living as an

24:57

undocumented immigrant in the United States

25:00

and also families that have mixed

25:02

statuses. But can you just give...

25:04

are listeners a little bit of

25:06

sense of what that looks like

25:09

when ICE is actually given permission

25:11

to raid schools or hospitals? ICE

25:13

has already been given permission to

25:16

raid schools and hospitals, though I

25:18

think the term raid here is

25:20

a little bit unclear. So there

25:22

are really two types of ICE

25:25

enforcement operations that have existed right

25:27

now. There are targeted operations in

25:29

the community where ICE officers are

25:31

given lists of names and go

25:34

out into community to arrest specific

25:36

people. This is where ICE officers

25:38

act a little bit more like

25:40

detectives. A detective in a police

25:43

department will probably have a name

25:45

of a suspect. They'll go after

25:47

that suspect and they'll take that

25:49

suspect into custody if they've got

25:52

a warrant. And this is a

25:54

similar issue. ICE will have an

25:56

administrative warrant to take someone into

25:58

custody. to the community and pick

26:01

up that person. Similarly, ICE arrests

26:03

most people that it takes into

26:05

custody in law enforcement custody, in

26:07

state law enforcement or local law

26:10

enforcement custody. People who've been arrested

26:12

for some criminal offense and are

26:14

being held at a jail or

26:17

a prison. And that's actually the

26:19

majority of what ICE does, go

26:21

to take someone into custody, a

26:23

very specific person into custody. Then

26:25

there are worksite raids where ICE

26:27

identifies a worksite and it doesn't

26:29

know who they are trying to

26:31

arrest. They know there are undocumented

26:33

immigrants there, but they don't really

26:36

know who they are. And they...

26:38

raid the entire building and arrest

26:40

everybody there and demand papers from

26:42

everybody there. That latter kind of

26:44

raid is unusual. And because it's

26:46

very resource intensive, you're talking dozens,

26:48

if not hundreds of ICE officers

26:50

being involved, you know, because they're

26:53

arresting hundreds of people, these operations

26:55

take months to plan, cost potentially

26:57

millions of dollars to carry out,

26:59

they're big deals. Whereas every single

27:01

day, currently, ICE is going out into

27:03

the community to arrest some people. And

27:05

so the big change, at least when

27:07

it comes to hospitals and schools,

27:10

is that under the Biden administration,

27:12

the Obama administration before that, it

27:14

was ICE policy not to do

27:16

those targeted arrests at hospitals and

27:18

schools. What the Trump administration has

27:20

said is they are just lifting

27:22

those and basically telling officers, use

27:24

your best judgment. So that is

27:26

less a, you know, full-throated endorsement

27:28

of raids on hospitals and schools,

27:30

as it is telling ICE officers,

27:32

we actually don't. think that there should

27:34

be any restrictions here other than your own

27:37

best judgment. If you think that your best

27:39

place to pick somebody up is when they're

27:41

picking up their child from school, and that's

27:43

the best place you can do that, go

27:45

ahead. We're not going to get in your

27:47

way. And so I think that is distinct

27:49

from saying there will be raids at hospitals.

27:51

I don't think we're going to see ICE

27:53

officers running into a school and grabbing all

27:55

the kids there that are undocumented. That's not

27:57

something I think people should be worried about.

27:59

at the moment, I don't think

28:02

people should be worried about ice

28:04

going door to door or setting

28:06

up checkpoints and demanding all papers.

28:08

All indications in the initial days

28:10

of the Trump administration are that

28:13

they do intend to keep most

28:15

enforcement operations in the community on

28:17

a targeted basis, even though they

28:19

will now send Fox News cameras

28:21

and others to go along with

28:24

them for PR purposes. So I

28:26

think we have to now turn

28:28

to the thing that really... is

28:30

freaking people out. Not that everything

28:32

we've talked about isn't, but you

28:35

mentioned it and I mentioned it

28:37

and that is birthright citizenship, which

28:39

is protected in the Constitution. But

28:41

as you said, President Trump has

28:43

somehow authorized himself to clarify the

28:46

14th Amendment in ways that rewrite

28:48

it altogether. Among other things, I

28:50

guess the plan is that the

28:52

government is no longer going to

28:54

treat all U.S.-born children going forward

28:57

as citizens, signaling the intention to,

28:59

I guess, ignore the guarantees of

29:01

the 14th Amendment. So this seems

29:03

like a huge huge big deal.

29:05

It's not just about immigration anymore.

29:08

It targets a whole lot of

29:10

legal immigrants. Again, it's unconstitutional. The

29:12

way we've been inclined to think

29:14

about this is, but it's just

29:16

in the 14th Amendment, is that

29:19

going to be enough? I hope

29:21

so, and I think it probably

29:23

will. This is not a serious

29:25

legal argument. There are a few

29:27

fringe scholars who have tried to

29:30

make some arguments that the birthright

29:32

citizenship doesn't apply to undocumented immigrants.

29:34

There are a few fringe scholars

29:36

who say birthright citizenship doesn't apply

29:38

in the ways the Trump executive

29:41

order says, which is not just

29:43

for undocumented immigrants, but also to

29:45

anyone who doesn't have a green

29:47

card. Under the executive order, children

29:49

born here to people on H-1B

29:52

visas, student visas, other temporary non-immigrant

29:54

visas that often... allow people to

29:56

live and work in the United

29:58

States for years to be here

30:00

living here, working here legally, that

30:03

the executive order, none of them

30:05

would transfer birthright citizenship to any

30:07

child born here. And while there

30:09

are slightly more scholars who make

30:11

an argument that the 14th Amendment

30:14

would not cover children of undocumented

30:16

immigrants, the number of people who

30:18

make the argument that it would

30:20

not cover children of people here

30:22

on H-1B's and others is even

30:25

smaller. This is primarily an idea

30:27

pushed by the disgraced and disbarred

30:29

John Eastman. He has been making

30:31

this argument for decades, and he

30:33

had very little success in the

30:36

court pushing his January 6th. big

30:38

lie theories about the 2020 election.

30:40

He lost nearly, I think every

30:42

single court case he brought on

30:44

these. So given that, given his

30:47

track record there, and given that

30:49

the Trump administration went even further

30:51

than they could by targeting not

30:53

just children of undocumented immigrants, but

30:55

also children of people here legally

30:58

on non-immigrant visas. I am still

31:00

pretty confident that the courts will

31:02

knock this down. This is seems

31:04

like of all of the things

31:06

that he has done in day

31:09

one, and we didn't even get

31:11

into the vast majority of changes

31:13

to interior enforcement that he calls

31:15

for, of all of the things

31:17

that he's did on day one,

31:20

this is the most obviously illegal

31:22

and would provide a very easy

31:24

case, I think, for the Supreme

31:26

Court to say, look, this is

31:28

a bridge too far even for

31:31

us. And so at the risk

31:33

of asking you to tell me

31:35

what's going to happen, we've got

31:37

already a bunch of cases filed,

31:39

we're already seeing movement in the

31:42

course. Is this a thing that

31:44

gets in your view wrapped up

31:46

easily and tidily in the coming

31:48

weeks? Or is this a thing

31:50

that is going to just throw

31:53

everything into chaos and be two

31:55

years in its resolution? So the

31:57

executive order is not set to

31:59

go into effect until February 19th,

32:01

30 days after it was signed?

32:04

And given that, we will be

32:06

getting court orders before then. Judges

32:08

are going to want to move

32:10

quickly on this because of how

32:12

much chaos this would throw everybody

32:15

into, because of course right now

32:17

and for the entirety of US

32:19

history, all you needed to show

32:21

your citizenship was a birth certificate.

32:23

If you were not a naturalized

32:26

immigrant, the only paperwork you need

32:28

to prove you are a US

32:30

citizen is a birth certificate. So

32:32

no one else out there. has

32:34

documents that could potentially show that

32:37

they were not covered by this.

32:39

And anyone who tries to claim

32:41

that, oh, well, this order only

32:43

applies to babies born afterwards, that

32:45

wouldn't impact is fooling themselves. If

32:48

a court were to uphold this,

32:50

which I don't think they will

32:52

do, it would obviously throw the

32:54

citizenship of every single other child

32:56

born in those circumstances. into question

32:59

and then it would throw the

33:01

citizenship of their children into question

33:03

because if the Constitution never guaranteed

33:05

citizenship in this case how far

33:07

back would you have to prove

33:10

to prove that you are actually

33:12

a US citizen because even if

33:14

your parent wasn't undocumented what if

33:16

your great-grandparent was undocumented how far

33:18

are we going to have to

33:21

go to prove our own citizenship

33:23

and given that I think This

33:25

will be put on hold. It

33:27

may eventually make the Supreme Court.

33:29

The Supreme Court will probably have

33:32

to rule on this in an

33:34

emergency basis on the shadow docket

33:36

because the Trump administration will undoubtedly

33:38

appeal any preliminary injunction or temporary

33:40

restraining order the Supreme Court. I

33:43

think it's probably likely, as it

33:45

did with the Muslim ban in

33:47

Trump's first term in office, that

33:49

they will weigh in against overturning

33:51

a preliminary injunction. I am not

33:54

at this moment. seriously concerned that

33:56

they are going to rule against

33:58

birthright citizenship. You know, if they

34:00

would, it would be such a

34:02

break from history and precedent that

34:05

it would pretty clearly show the

34:07

entire game is up. Can we

34:09

turn for a minute to another?

34:11

Another, I think really pernicious move.

34:13

Again, it's hard to calibrate how

34:16

alarmed to be, but threats to

34:18

go after local officials who resist

34:20

doing immigration crackdowns, the acting deputy

34:22

attorney. General Emil Bove directed prosecutors

34:24

around the country in a document

34:27

that came out this week in

34:29

the Washington Post and the Associated

34:31

Press to investigate and potentially bring

34:33

criminal charges against any officials in

34:35

quote sanctuary jurisdictions for quote harboring

34:38

undocumented immigrants or withholding immigration information

34:40

from federal authorities. Now again I

34:42

remember reading Prince versus United States.

34:44

It seems like you cannot commandeer

34:46

local officials to do federal law,

34:49

but what do I know? Is

34:51

this, again, I feel like I

34:53

just keep asking you how freaked

34:55

out to be, is this just

34:57

throat clearing and chest thumping? Or

35:00

is there an actual possibility that

35:02

local officials are going to be

35:04

conscripted to do crackdowns? Yeah, and

35:06

before I get into the specifics

35:08

of that, I think it is

35:11

worth sort of highlighting the broad

35:13

themes of the interior enforcement executive

35:15

orders. What Trump wants to create

35:17

is something similar, at least a

35:19

name, to what the United Kingdom

35:22

called the hostile environment policy. The

35:24

goal is to strip undocumented immigrants

35:26

of any access to protections, to

35:28

make their lives in the United

35:30

States more difficult with the goal

35:33

that they will self-deport. And what

35:35

is a little bit different from

35:37

the UK is a further efforts

35:39

by the Trump administration to also

35:41

provide a hostile environment to anyone

35:44

who might resist this. Anyway, including

35:46

by raising legal claims, asserting their

35:48

own constitutional rights, or indeed simply

35:50

claiming that they don't want to

35:52

get involved. with this, sitting on

35:55

the sidelines, is in their view

35:57

taking a position against them. So

35:59

beyond the additional legal authorities that

36:01

the Trump administration wants to use

36:03

against immigrants themselves, the executive orders

36:06

contain two provisions aiming to create

36:08

this hostile environment for anyone who

36:10

tries to resist. One of that

36:12

is this threat to use the

36:14

Justice Department against any local or

36:17

state officials who oppose them, as

36:19

well as call for the federal

36:21

government to strip all funding, even

36:23

funding completely unrelated to immigration from

36:25

any jurisdiction that does not comply.

36:28

Now as you mentioned, that's unconstitutional.

36:30

Just quite clearly black letter law.

36:32

The federal government cannot force states

36:34

to do certain things and one

36:36

of those is use their law

36:39

enforcement for federal purposes without the

36:41

permission. of the state government. States

36:43

have their own police powers. They

36:45

get to control how they use

36:47

their law enforcement and they cannot

36:50

be co-opted by the federal government

36:52

without their consent. This is black

36:54

letter law, very clear, and in

36:56

fact multiple courts have held in

36:58

the past and during the Trump

37:01

administration that a lot of locations

37:03

with sanctuary policies are not violating

37:05

the law, that they are exercising

37:07

their rights as separate sovereigns. to

37:09

choose how to use their law

37:12

enforcement agencies and what resources they

37:14

want to spend on assisting the

37:16

federal government with federal immigration enforcement.

37:18

Nevertheless, we fully expect that the

37:20

DOJ will be weaponized in these

37:23

actions. And the question again will

37:25

be how do courts respond? And

37:27

how does the internal DOJ respond?

37:29

Will there be one or two

37:31

splashy lawsuits filed that really don't

37:34

go anywhere much? It's possible that

37:36

it just ends up looking like

37:38

that. More threats, but mostly not

37:40

actual, like, successful lawsuits. But I

37:42

think they are... hoping that the

37:45

threat of lawsuits in and of

37:47

itself causes people to change their

37:49

behavior. And certainly we have been

37:51

hearing from state and local governments

37:53

that many of them are now

37:56

worried. Of course, this is going

37:58

further than just the DOJ. We

38:00

are now seeing efforts in other

38:02

places to punish anyone who disagrees

38:04

at the local level. In Tennessee,

38:07

the Tennessee GOP is introducing a

38:09

bill that could potentially make it

38:11

a crime for a local official

38:13

to vote. for a sanctuary policy.

38:15

Not even to put in effect

38:18

a policy that's unlawful, simply to

38:20

vote to have one. Again, that's

38:22

obviously unconstitutional. You cannot throw a

38:24

legislator in jail for voting for

38:26

a law. That is absurd. And

38:29

yet, this is where a lot

38:31

of the opponents of undocumented immigrants

38:33

are going. They went to criminalize

38:35

dissent, not even dissent, but simply

38:37

sitting on the sidelines and not

38:40

giving full-throated support. I hope that

38:42

the courts hold on this. A

38:44

lot of this is so obviously

38:46

unlawful that it should be struck

38:48

down, but as always, it will

38:51

remain to be seen. Now, beyond

38:53

that, it's not just local and

38:55

state officials. It's also non-profits that

38:57

assist with the federal government in

38:59

this. One of the executive orders

39:02

calls for an audit of every

39:04

contract and grant between the federal

39:06

government and any nonprofit organization that

39:08

provides any services to removable aliens.

39:10

So that is not just undocumented

39:13

immigrants, but that would also be

39:15

people with green cards who are

39:17

facing deportation proceedings. And then not

39:19

only does it call for an

39:21

audit of those contracts, it also

39:24

says all such contracts shall be

39:26

frozen until the audit is completed.

39:28

This has already happened. There is

39:30

a thing called legal orientation providers.

39:32

So currently in many ICE detention

39:35

centers, Congress has provided that there

39:37

are a limited set of funds

39:39

for non-profits to provide basic know-your

39:41

rights present. for people held in

39:44

ICE detention. There's also something called

39:46

the Immigration Court Help Desk, which

39:48

is at immigration courts helps people

39:50

connect with lawyers if they don't

39:52

have one. Pretty basic small government

39:55

stuff, just like helping people get

39:57

a lawyer and know their rights.

39:59

Those contracts have already received stop

40:01

work orders. And so as of

40:03

today, know your rights presentations and

40:06

ICE detention centers have been halted,

40:08

efforts to help people find lawyers

40:10

in the immigration courts have been

40:12

halted. And so the chilling effect

40:14

of this is already ongoing. And

40:17

you can see their effort here

40:19

to essentially make it so that

40:21

anyone who has the audacity to

40:23

try to resist by asserting their

40:25

legal rights that they want to

40:28

go after them. whether they will

40:30

be able to go after them,

40:32

whether this will succeed, again, time

40:34

is going to tell. So it's

40:36

so interesting because you're making me

40:39

think, last week we talked to

40:41

Professor Pam Carlin from Stanford about

40:43

what one does as a government

40:45

lawyer in this moment, where you

40:47

have to make these choices about

40:50

sticking around, trying to mitigate harms.

40:52

being conscripted into a regime that

40:54

is doing harm. And one of

40:56

the things that occurs to me

40:58

as you're talking and just reading

41:01

these executive orders, Aaron, is the

41:03

degree to which this is really

41:05

different from 2017. And that is

41:07

because there's an actual government purge

41:09

going on. And we don't have

41:12

to go into the deep details,

41:14

but you know, government lawyers are

41:16

being asked to report on one

41:18

another and government entities. As you

41:20

noted, whole programs are being shuttered

41:23

or paused. It certainly appears that

41:25

getting rid of everyone but the

41:27

loyalist is really at the heart

41:29

of this administration's efforts to rethink

41:31

government. And so it leads me

41:34

to wonder, our whole exit loyalty

41:36

voice question is not about leaving

41:38

in disgust or staying to mitigate

41:40

harms this time because this focus

41:42

is on purging everyone but the

41:45

most loyal. Yeah, there have already

41:47

been resignations from the Department of

41:49

Justice. In fact, before I did

41:51

policy, I was briefly an immigration

41:53

litigator at my organization, and we,

41:56

you know, on a couple of

41:58

our lawsuits seeking to vindicate rights

42:00

under the law. law for immigrants.

42:02

And last night, got a court

42:04

notification that one of the DOJ

42:07

attorneys on a case from a

42:09

while ago has left the DOJ.

42:11

So I obviously can't confirm why

42:13

that person left, but I have

42:15

certainly heard internally that many people

42:18

are thinking of leaving. Now, this

42:20

also has a counterproductive effect. They

42:22

are still going to need to

42:24

have lawyers in courtrooms to defend

42:26

these policies, or to prosecute these

42:29

policies. And if a bunch of

42:31

people in the DOJ quit... They

42:33

are not going to be able

42:35

to replace them all that quickly.

42:37

There are obviously some people who

42:40

are going to be willing to

42:42

join, but they are going to

42:44

be losing decades of institutional knowledge.

42:46

They're going to be losing relationships

42:48

with judges. And they are going

42:51

to really be sending a message

42:53

to the judiciary that things aren't

42:55

normal. Of course, You know, when

42:57

it comes to the federal government,

42:59

there's the presumption of regularity. It's

43:02

core to a lot of government-related

43:04

lawsuits, that the government is presumed

43:06

to be acting in good faith

43:08

and on a normal basis. If

43:10

there are widespread resignations and really

43:13

a message being sent up from

43:15

the DOJ to the judiciary saying

43:17

things are not normal, we may

43:19

get some significant pushbacks, and it

43:21

remains to be seen again how

43:24

the judiciary responds to this. We're

43:26

going to take a short break.

43:28

This podcast is brought to you

43:30

by progressive insurance, fiscally responsible, financial

43:32

geniuses, monetary magicians. These are things

43:35

people say about drivers who switch

43:37

their car insurance to progressive and

43:39

save hundreds. Because progressive offers discounts

43:41

for paying in full, pony at

43:43

home, and more. Plus, you can

43:46

count on their great customer service

43:48

to help you when you need

43:50

it. So your dollar goes a

43:52

long way. Visit progressive.com to see

43:54

if you could save on car

43:57

insurance. Progressive Casualty Insurance Company and

43:59

affiliates, potential savings will vary. Not

44:01

available in all states and situations.

44:03

is brought to you by NRDC.

44:05

Our nation's environmental safeguards face their

44:08

gravest challenge ever. The new Trump

44:10

administration is moving quickly to dismantle

44:12

decades of protections for our clean

44:14

air, water, and public lands. The

44:16

Natural Resources Defense Council has proved

44:19

it can stop these attacks. NRDC

44:21

filed the first environmental lawsuit against

44:23

the previous Trump administration and maintained

44:25

a blistering pace, filing 163 legal

44:27

challenges and winning victories in nearly

44:30

90% of resolved cases to protect

44:32

wolves, bees, and other endangered species,

44:34

block the Keystone Excel pipeline, regulate

44:36

chemicals, hazardous to our health, and

44:38

more. Now NRDC is launching the

44:41

legal fund to stop the Trump

44:43

agenda. For a limited time, all

44:45

donations will be doubled to help

44:47

power their strongest legal defense of

44:49

our environment yet. From climate protection

44:52

to endangered species, what we do

44:54

now will determine the world our

44:56

children inherit. Make your match gift

44:58

at nrdc.org/podcast. Honest.

45:03

When's the last time you had

45:05

a homemade meal? We get

45:07

it. Between meetings, workout classes,

45:09

and the kids after-school sports, who's

45:12

got time to cook? That's where

45:14

Hello Fresh comes in. No matter

45:16

how busy you get. Hello

45:18

Fresh has everything you need to

45:21

get. Homecooked meal on the table.

45:23

With flavor packed recipes like Parmesan

45:26

herb-crusted salmon. You'll be filling

45:28

your kitchen with the cozy aromas

45:30

of a homemade meal in no time.

1:03:11

That's all for this episode.

1:03:13

Thank you so much for

1:03:15

listening in. Thank you so

1:03:17

much for your letters and

1:03:19

your questions and your comments

1:03:21

there coming in fast and

1:03:23

furious. And we are so

1:03:25

grateful. You can always keep

1:03:27

in touch at amicus at

1:03:30

slate.com and you can find

1:03:32

us at facebook.com/amicus podcast. My

1:03:34

jurisprudential co-pilot Mark Joseph Stern

1:03:36

is waiting for us right

1:03:38

now in the amicus plus

1:03:40

cigar bar. We're going to

1:03:42

be talking about the temporary

1:03:44

restraining presumably become a preliminary

1:03:46

injunction against President Trump's attempt

1:03:48

at cancelling birthright citizenship among

1:03:50

other things. You can subscribe

1:03:52

to Slate Plus directly from

1:03:54

the Amicus Show page on

1:03:57

Apple podcasts and Spotify or

1:03:59

you can visit slate.com/Amicus Plus

1:04:01

to get access wherever you

1:04:03

listen. That episode is available

1:04:05

for you to listen right

1:04:07

now. We'll see you there.

1:04:09

Sarah Burningham is Amicus's senior

1:04:11

producer. Our producer is Patrick

1:04:13

Fort Hillary, Frey is Slade's

1:04:15

editor-in-chief. Susan Matthews is executive

1:04:17

editor and Ben Richmond is

1:04:19

our senior director of operations.

1:04:22

We'll be back with another

1:04:24

episode of Amicus next week.

1:04:37

Hi slate listeners, I'm Lizzio Leary,

1:04:40

host of What Next TVD. Our

1:04:42

show focuses on the intersection of

1:04:44

tech and power, which is, you

1:04:47

know, kind of relevant right now.

1:04:49

On Friday's episode, we're talking about

1:04:52

Doge, the new Department of Government

1:04:54

Efficiency. It's Elon Musk's mimi cost-cutting

1:04:56

agency that's taken aim at various

1:04:59

parts of the government. What can

1:05:01

Doge do? Will the multiple lawsuits

1:05:04

stop it? all of that. We're

1:05:06

getting into it on Friday. Then,

1:05:08

if you are a Slate Plus

1:05:11

member, there is more where that

1:05:13

came from. Our first bonus episode

1:05:15

of The Discourse is now live.

1:05:18

Slate Natish Pawa joins me. We

1:05:20

unpack the Brolegarchy, including Musk himself,

1:05:23

and, uh... Whatever he was doing

1:05:25

with his arm at Trump's presidential

1:05:27

inauguration. So you can catch what

1:05:30

next TVD wherever you listen to

1:05:32

Slate podcasts and the discourse is

1:05:34

our special new feature for Slate

1:05:37

Plus members.