0:10

This is the Daily Blast

0:13

from the New Republic

0:15

produced and presented by

0:17

the DSR Network. I'm

0:19

your host, Greg Sargent.

0:21

The fate of dozens

0:23

of Venezuelans deported by

0:26

the Trump administration

0:28

to a maximum security

0:30

prison in El Salvador

0:32

remains in doubt. So

0:34

does the fate of Kilmar

0:37

Abrego Garcia. who administration

0:39

officials admit was removed in error

0:41

even as they refused to bring

0:44

them back to the United States.

0:46

The Supreme Court issued rulings

0:48

on these cases this week, putting

0:50

a hold on a lower court's

0:52

order to reverse the removal of

0:55

a Brago Garcia and allowing the

0:57

deportations of Venezuela to resume for

0:59

now. In that second one, Sonia Sotomayor

1:01

issued a powerful dissent and buried

1:03

in it is cause for real

1:05

alarm. because it signals a way

1:07

in which these horrors might get

1:09

much worse. Today we're talking about all

1:12

of this to one of the

1:14

best out there at demystifying this

1:16

kind of thing. American Immigration Council

1:18

Senior Fellow Aaron Reiclan Melnick. Aaron,

1:21

thanks for coming on, man. Thank you

1:23

for having me. So the Supreme

1:25

Court reversed a lower court ruling

1:27

that had stopped Trump's deportations of

1:29

Venezuelaans, which he had undertaken pursuant

1:32

to the Alien enemies Act of

1:34

1798. Dozens of them had been

1:36

removed without any due process, and

1:39

the administration has failed to show

1:41

that a number of them are

1:43

even members of the Trende Aragua

1:46

gang, as it alleged. Now, Aaron, the

1:48

court did say that all nine

1:50

of the justices agree that these

1:52

migrants deserve due process. The only

1:54

question is which court it happens,

1:56

and can you sum up where we are

1:58

on this? Yeah, so this... case made it

2:01

to the Supreme Court with

2:03

the Trump administration arguing that

2:05

every person had no right to

2:07

see a judge, that yes, if

2:09

they wanted to, they could file

2:11

a habeas corpus lawsuit, but other

2:13

than that, the government did not

2:15

have to tell them before it put

2:17

them on a plane, and it didn't

2:20

have to give them any time to

2:22

file a lawsuit. It won on one

2:24

narrow issue. It won on whether

2:26

or not a court in Washington

2:28

DC could issue a broad class

2:30

action halt on these removals while

2:33

it determined whether the invocation of

2:35

the law was legal. But they

2:37

didn't win on anything else. And

2:39

in particular, all nine justices

2:42

made very clear that the

2:44

government's original method of rushing

2:46

people onto planes with no

2:49

notice and no warning is

2:51

not appropriate. and that in the

2:53

words of Justice Roberts people must

2:55

be given a reasonable time

2:57

to actually have a meaningful

3:00

opportunity to file a habeas corpus

3:02

lawsuit saying hey I shouldn't be subject

3:04

to this law or even just hey

3:07

this law is not being appropriately

3:09

invoked. So that is

3:11

actually a very very narrow

3:13

win for the Trump administration

3:15

and mostly somewhat good news

3:17

for the plaintiffs and for people

3:19

who don't think that the administration

3:22

should be able to snatch people

3:24

off the streets and send them

3:26

to foreign gulags? So it importantly

3:28

it's a win for due process

3:30

in theory because in reality actually

3:33

filing habeas corpus lawsuits is not

3:35

exactly easy, especially when we're talking

3:37

about people who are going to

3:39

be held in ICE detention centers,

3:41

potentially in the deep south, far

3:43

away from their families, far away

3:46

from their resources, and maybe might

3:48

not even get a notice from

3:50

the government that they're going to

3:52

be put on a plane for,

3:54

well, however long the Trump administration

3:56

determines is a quote, unquote, reasonable

3:59

period of time. Let's go to

4:01

the Abrego Garcia case for a

4:03

second. Can you just recap where we

4:05

are on that? Yeah, so at its

4:07

core, this is actually a pretty simple

4:10

issue. Mr. Abrego Garcia is a Salvadoran

4:12

man who came to the United States

4:14

in 2011 at the age of

4:16

16. He has been living in the

4:19

United States for the previous 14 years.

4:21

basically not getting into much trouble. He

4:23

only had one single arrest ever on

4:26

his record in 2019 for loitering outside

4:28

a home depot while looking for

4:30

day labor. And so in 2019, that

4:32

arrest led to him being put in

4:35

ICE detention. There was an allegation that

4:37

he was linked to MS-13 made by

4:39

the local police who arrested him for

4:42

loitering and a. judge, an immigration

4:44

judge in 2019, ruled that he could

4:46

be deported, but there was one country

4:48

that he could not be deported to,

4:51

and that was El Salvador. Then on

4:53

March 12th, the Trump ICE officials came

4:55

by his house, arrested him, told

4:57

him his status had changed, that was

5:00

not true, sent him to Texas, and

5:02

three days later put him on the

5:04

plane to El Salvador, the one place

5:07

that it could not legally deport him

5:09

to. The Trump administration admitted its error

5:11

in court when sued, but then

5:13

made the startling argument that even though

5:16

they had by their own admission messed

5:18

up, there was absolutely nothing a judge

5:20

could do about it. They now have

5:23

lost in front of every judge they've

5:25

made that argument to. They lost

5:27

at the lower court level yesterday or

5:30

on Monday the Fourth Circuit ruled that

5:32

they should lose again, denied their request

5:34

to put this order on hold. And

5:37

now that's up to the Supreme Court,

5:39

where they're making the exact same

5:41

argument. Even if we screw up and

5:43

send someone to El Salvador who we,

5:46

by our own admission, should not have

5:48

sent to El Salvador, there is nothing

5:50

a judge could do. And the Supreme

5:53

Court's going to weigh in any

5:55

moment. I just want to be clear

5:57

that the government's argument is that no

5:59

court can compel them to rectify. this

6:02

quote-unquote error and bring back Abrego Garcia

6:04

because that would intrude on the president's

6:06

article two powers to negotiate foreign

6:08

relations, correct? That's right. And it's

6:10

also an odd argument because ICE

6:12

and the Department of Justice worked

6:15

to bring people back who are

6:17

wrongfully deported all the time. You know, wrongful

6:19

deportations, it happens. It's, you know, sometimes

6:21

it's a matter of a court order

6:23

might go into effect 60 minutes before

6:25

a plane, plane takes off and the

6:27

message doesn't get to the right person

6:29

in time. Sometimes like this case, it's

6:31

a paperwork error or they say an

6:33

administrative error. So it's not like this

6:35

has never happened before. And there

6:37

are dozens of examples going back

6:39

many years where courts order the

6:41

government to basically make. good faith efforts

6:44

to fix its mistakes. And so

6:46

the government's position here is pretty

6:48

at odds with its own long

6:50

history of fixing its own mistakes.

6:53

Okay, so we now have set the table

6:55

to get to where I want to

6:57

get to, which is Sonia Sotomayor's dissent.

6:59

This is in the case involving

7:02

all the Venezuelans removed to the

7:04

El Salvador and Gulag. Sodomayor

7:07

dissented from the court's ruling, which

7:09

is that those could continue for

7:11

now, and she was joined by

7:13

the two other liberals, and partly

7:15

by Amy Coney Barrett, in the

7:17

dissent, Sotomayor raised a potential scenario

7:19

in which it does turn out

7:21

that many of the Venezuelans were

7:24

removed in error, which looks likely

7:26

to have happened, because in some

7:28

cases we're talking about them concluding

7:30

that these are gang members based

7:33

on soccer tattoos and things like

7:35

that. And so in discussing this...

7:37

Sotomayor cited the case of a

7:39

Breo Garcia who as we've said

7:41

was removed by mistake and the

7:44

government saying they can't bring him

7:46

back or they're under no obligation

7:48

to bring him back. Then Sotomayor

7:50

said the following. Quote, the implication

7:52

of the government's position is

7:55

that not only non-citizens but

7:57

also United States citizens could

7:59

be taken off the streets, forced onto

8:02

planes, and confined to foreign prisons

8:04

with no opportunity for redress if

8:06

judicial review is denied unlawfully before

8:08

removal." close quote. Aaron, that's the

8:10

rub of the matter. If the

8:12

administration can deport people by mistake

8:14

and not have to ever rectify

8:16

those mistakes, where's the limit on

8:18

that? There is no limit on

8:20

it as I think she correctly

8:22

noted. And, you know, she is

8:24

not the only judge to have

8:26

said virtually the identical thing, just

8:28

a few hours before the Supreme

8:30

Court weighed in about the Alien

8:32

Enemies Act. In Mr. Abrego Garcia's

8:34

case, you have the Fourth Circuit

8:36

weigh in, and Judge Wilkinson, a

8:38

Reagan appointee, set who is a

8:40

conservative. said of this, the almost

8:42

identical thing. He said, basically, it

8:44

take the facts of this case

8:46

present the potential for a disturbing

8:48

loophole, namely that the government could

8:50

whisk individuals to foreign prisons in

8:52

violation of court orders and then

8:54

contend, invoking its Article 2 powers

8:56

that it is no longer their

8:58

custodian and that there is nothing

9:00

that can be done. It takes

9:02

no small amount of imagination to

9:04

understand that this is a path

9:06

of perfect lawlessness, one that courts

9:08

cannot condone. So there you have

9:10

two judges within two very senior

9:12

judges within less than 12 hours

9:14

Weying in and saying the government

9:16

cannot be right about this because

9:18

otherwise where are we with the

9:20

law? Has the government responded to

9:22

that argument in particular at any

9:24

point? The government has by and

9:26

large not responded to the core

9:28

issues raised by these judges claims

9:30

They basically try to say well,

9:32

it doesn't matter what the broader

9:34

principle is. In this specific case,

9:36

these people are detained by El

9:38

Salvador and there's nothing we can

9:40

do about it because they're detained.

9:42

And their response to judges have

9:45

gone as well, you're paying El

9:47

Salvador, so obviously you do maintain

9:49

some sort of control. But the

9:51

other thing the government is doing

9:53

is responding by just attacking them

9:55

and saying basically. like who are

9:57

you to suggest we bring back

9:59

criminals? And this is, you know,

10:01

in Mr. Abrego's, Garcia's case, it's

10:03

particularly outrageous. Here we have a

10:05

guy who's been in the United

10:07

States since he was 16 years

10:09

old for 14 years, and the

10:11

only thing on his criminal record

10:13

is a single arrest for loitering.

10:15

He doesn't have even eight. charge.

10:17

He's never been charged with anything.

10:19

And yet you have Pam Bondi,

10:21

Christie Noam, and others in the

10:23

Trump administration calling him a human

10:25

trafficker, accusing him of being a

10:27

violent criminal, and you had J.D.

10:29

Vance calling him at one point

10:31

a convicted gang member, even though

10:33

that ended up, he ended up

10:35

having to walk that back. So

10:37

to some extent, they just simply

10:39

can't admit that they made an

10:41

error because once they admit they

10:43

made one mistake, the whole thing

10:45

unravels. Spring is finally

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11:28

enjoy the show. Well,

11:37

let's just clarify a key point

11:39

here. Even if he were an

11:41

MS-13 member or even if they

11:43

did have real evidence of that,

11:45

he would still be entitled to

11:47

due process on the latest removal

11:49

of him, right? And by the

11:51

way, they have not presented any

11:53

real evidence that he's a member

11:55

of MS-13, have they? No, and

11:57

you know, I think it's helped

12:00

helpful to maybe walk through what

12:02

the actual evidence says in this case.

12:04

So when he was arrested in 2019,

12:06

he was arrested by the Prince George's

12:08

County Police Department, which is the county

12:10

right outside DC and Maryland. And he

12:12

was arrested outside a home depot. He

12:14

was held for about four hours by

12:16

his own declarations. He said a police

12:18

detective interrogated him, asked him whether he

12:20

was connected to any gangs. He said,

12:22

no, no, no, I've got no connections

12:24

to any gangs. Then he gets released. Four

12:26

hours later, that's it. That's it. And

12:28

but he gets sent immediately to ICE

12:30

detention. So he goes straight from police

12:32

custody to ICE detention after four hours. Because

12:35

he was undocumented, right? Because he

12:37

was undocumented, not because of a

12:39

crime, simply because he was undocumented.

12:41

Simply because he was undocumented. And then when

12:43

he gets to ICE detention, ICE says, hey,

12:45

we think you're a gang member. And he

12:47

goes, wait, wait, wait, hang on, he's got

12:49

no connections to gang. And so it

12:51

turns out that while he was in

12:53

Prince George's County Police police department police

12:55

department police department, The detective filled out a

12:57

form called a gang worksheet, and the

13:00

gang worksheet says, I think this guy's

13:02

a member of MS-13. How do I

13:04

know this? It says, one, he was

13:06

wearing Chicago bulls gear at the time,

13:08

and the detective says, that's

13:10

evidence, he was in MS-13.

13:12

And two, the detective says,

13:14

a confidential informant who's unnamed,

13:17

said that this guy was a member

13:19

of a MS-13 click that operates out

13:21

of Long Island, called the Western click.

13:23

So Mr. Abrego Garcia says, I've never

13:25

lived in Long Island. I've lived in

13:27

Maryland the whole time I've lived in

13:29

the United States. Obviously, I'm not connected

13:31

to that. And so his lawyer goes

13:34

back to the police and says, hey,

13:36

we'd like all of your records about

13:38

what happened here. And what they found

13:40

was, one, the Peachee County police didn't even

13:42

have a record of his arrest. They had

13:44

not even filled out an incident report.

13:47

And two, the detective when they

13:49

went to interview him had been

13:51

suspended for some unrelated reason. So

13:53

that's it. And when ICE in

13:55

immigration court presented that evidence

13:57

to the immigration judge... They

14:00

agreed. They had nothing else. That

14:02

is literally it. There has never

14:04

been any other evidence of connections

14:06

to MS-13 other than that one

14:08

gang worksheet filled out by that

14:10

suspended detective that claimed he was

14:13

part of an MS-13 click in

14:15

a place he had never lived

14:17

in and nothing else. So they

14:19

have had many opportunities since then

14:21

to present evidence. that he's connected

14:23

to a gang. Again, this has

14:26

been in front of multiple judges

14:28

now. They've submitted declarations. They've made

14:30

arguments to the court. They've claimed

14:32

he's a danger. And they have

14:34

nothing. They literally have never submitted

14:36

any other evidence than a detective

14:38

claimed that a confidential informant said

14:41

he was an MS-13 member in

14:43

a place he'd never lived, and

14:45

he was wearing Chicago Bulls gear

14:47

when he was arrested. And that's

14:49

it. Just amazing. Well, let's talk

14:51

about Sotomayor's line and her dissent.

14:53

It seems superficially far-fetched that something

14:56

like that could happen to an

14:58

American citizen. On the other hand,

15:00

she's right that this is the

15:02

implication of the government's position. So

15:04

Aaron, realistically, what's the worst scenario

15:06

you could see actually happening in

15:08

the real world if that position

15:11

is allowed to stand? El Salvador,

15:13

you know, President Buchelli, has been

15:15

extremely clear that he would be

15:17

happy to take American citizens. He

15:19

said it when Marco Rubio was

15:21

visiting the country. He has recently

15:24

said it again. Trump has said

15:26

he thinks it would be a

15:28

good idea, but he's, you know,

15:30

unsure whether it's legal. So the

15:32

worst case scenario is that someone

15:34

inside the White House says, hey,

15:36

I don't really care what the

15:39

lawyers say, I think it's legal

15:41

and sells a prisoner to El

15:43

Salvador. Now, do I think that's

15:45

likely? No, I hope not. I

15:47

hope there are still enough adults

15:49

in the room that would stop

15:51

something like that from happening. But

15:54

here we have a foreign president

15:56

who has openly said he would

15:58

take US citizens. The United States

16:00

wanted. to send there and an

16:02

administration that has been very heavily

16:04

flirting with the idea. Well,

16:06

I think we should find

16:09

Sotomayor's warning terrifying, don't

16:11

you? Yeah, and this is why

16:13

how the Supreme Court rules on

16:15

Mr. Obrego Garcia's case is really

16:17

going to be telling. If they

16:19

actually say there's nothing the judges

16:22

could do, we're in a dangerous place.

16:24

Now that is not the same as saying

16:26

that people are suddenly going to be

16:28

rounded up and grabbed off the street

16:30

and shipped to El Salvador. I don't

16:32

think that's the same thing. But what

16:34

it is saying is that one core

16:37

way to prevent some sort of awful

16:39

abuse like that is gone and

16:41

that essentially the administration could

16:43

do something and as so long as they

16:45

were quick enough to get someone out of

16:47

the country in time to avoid a court

16:49

order. there's nothing a judge could

16:51

do and that should scare anybody. That

16:53

doesn't comport with any principles of due

16:56

process that I can think of or

16:58

even that we've ever had in our

17:00

country. And of course, if you look

17:02

at the declaration of independence, the declaration

17:04

of independence has as one of the

17:07

grievances against King George III that he

17:09

took people away from their homes and sent

17:11

them to foreign countries to be tried on

17:13

made up charges. And man, I don't want

17:15

to be saying we're speed running

17:17

the declaration of independence. Well, okay,

17:19

that sounds like an extreme scenario,

17:22

but as you say, it would

17:24

remove a check against that extreme

17:26

scenario if the court just throws

17:28

up its hands and says, we

17:30

cannot compel the government to reverse

17:33

an error, in quotes, like this

17:35

one with a Brego Garcia. Where

17:37

do you expect the court to

17:39

rule on the Brego Garcia manner

17:42

and also... I gotta say it seems

17:44

unlikely that the Supreme Court would

17:46

uphold these deportations pursuant to the

17:48

Alien Enemies Act, which requires us

17:50

to be at war or under

17:52

invasion by a foreign power or

17:54

government. Am I being too optimistic

17:56

on both these? What's your general

17:58

expectation on each front? Yeah, well, I want

18:01

to start with the Alien Enemies Act first,

18:03

because again, to emphasize, the Supreme Court did

18:05

not rule last night that his decision was

18:07

legal to invoke the law. And that is

18:09

something that is going to percolate up to

18:12

the Supreme Court again. It may take a

18:14

lot more time now. It could not potentially

18:16

be argued until next year, given where we

18:18

are in the court's schedule. Oral arguments are

18:21

set to conclude at the end of April.

18:23

It's possible we might not get a decision

18:25

on that for a while, but it's going

18:27

to make it there eventually, because there is

18:29

no argument, realistic argument, that we have been

18:32

invaded by Trinidad or the Venezuelan government, or

18:34

that a gang that is already on the

18:36

decline after the Venezuelan government cracked down on

18:38

it badly two years ago is a foreign

18:40

nation that was settled on the law. Like

18:43

this is a wartime law. Let's be serious

18:45

about it. We are not at war. I

18:47

hope that the justices when they finally get

18:49

up to the answering that question, answer what

18:52

should be an easy question, no, this is

18:54

not a lawful use of the law. On

18:56

Mr. Obrego Garcia, we genuinely don't know. Judge

18:58

Wilkinson, I mentioned the Reagan appointee who said

19:00

that this could lead to lawlessness. He also

19:03

said, look, the government does have a point

19:05

here to some extent. Yes, this guy is

19:07

a Salvadoran man who is being held in

19:09

a Salvadoran a Salvadoran prison prison. there is

19:11

some argument that we couldn't simply order them

19:14

to do the impossible. But he pointed out,

19:16

that's different from ordering the government to at

19:18

least make a good faith effort to try

19:20

to bring him back and at least have

19:23

a judge looking over their shoulders, making sure

19:25

they are actually making a good faith effort

19:27

and not sort of trying to say the

19:29

dog ate my homework. And, you know, we

19:31

tried, but nothing to be done. So I

19:34

hope that the Supreme Court sees that distinction

19:36

and says even with all the national security

19:38

and international relations and foreign affairs arguments the

19:40

government is making at its core. This

19:42

isn't a court order

19:45

saying, know, come know, or or

19:47

high water bring the

19:49

guy back. It's a

19:51

court order saying make an

19:53

effort at it an effort

19:56

at it at make a

19:58

real effort at it

20:00

you know, you made a mistake, that

20:02

you made a mistake,

20:05

you know You made

20:07

a mistake try to

20:09

fix it and the

20:11

government is certainly not

20:13

doing itself by here an

20:16

taking such an extreme

20:18

position as we saw

20:20

Justice Sotomayor pointing out

20:22

in her alien enemies act

20:24

decision Well, when when

20:27

you put it like that it

20:29

really clear that Sotomayor laid out out

20:31

what the actual stakes here

20:33

really are Melnick, it's It's

20:35

always good to talk to you you,

20:37

for the clarifying conversation. Thank

20:39

you so much for having me

20:41

so much for having me. You've been been listening

20:43

to Daily Blast with me your

20:45

host Greg Sargent. The The Daily

20:48

Blast is a new republic podcast

20:50

and is produced by Riley by

20:52

Riley the DSR DSR network. You