Clarence Thomas is Color Blind

Summary

Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: "Clarence Thomas is Color Blind" (May 28, 2017)

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Episode Overview

This episode delves into a landmark Supreme Court decision on racial gerrymandering in North Carolina (Cooper v. Harris), focusing on the surprising alignment of Justice Clarence Thomas with the Court's liberal justices. Host Dahlia Lithwick and Slate legal correspondent Mark Joseph Stern explore the nuances of race and partisan gerrymandering, the evolving legal landscape for voting rights, and the implications of the decision for future cases.
The second half of the episode addresses immigrant rights advocacy, featuring Jorge Baron of the Northwest Immigrant Rights Project (NWIRP) discussing an alarming Department of Justice action targeting their work.

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1. Supreme Court Strikes Down North Carolina’s Racial Gerrymander

[00:33–20:32]

Background and Context

• Cooper v. Harris:
  • Supreme Court ruling on whether two North Carolina congressional districts were unconstitutional racial gerrymanders.
  • Eight justices heard the case (Gorsuch not yet on the Court).
  • All agreed District 1 was unlawfully gerrymandered; for District 12, the Court split 5–3, with Clarence Thomas joining the liberals.

Key Discussion Points

• Complexity of Voting Rights Jurisprudence
  • Litigation has been ongoing for decades, particularly over weirdly-shaped districts in NC.
  • The dual obligations: Not to use race as a predominant factor (as per Equal Protection) but also to comply with the Voting Rights Act and avoid diluting minority voting power.
• Recent Unanimous Decision
  • Previous week, the Supreme Court declined to hear an appeal regarding NC’s stringent voter suppression law (struck down by 4th Circuit), thus letting the appellate decision stand—technically on procedural grounds, not merits ([04:50]).
• The Supreme Court's Precedents and “Threading the Needle”
  • The difficulty for states in drawing districts that are neither unconstitutional racial gerrymanders nor illegal dilutions of minority power, especially in the South where race and party often overlap ([08:10]).
• Justice Elena Kagan’s Majority Opinion
  • The ruling says using race as a proxy for party—even when it serves as a pretext for targeting Democrats—is still a racial gerrymander and thus unlawful ([10:27], [11:22]).
  • Quote: “If you use race in any capacity, if you're using it to try and figure out who the Democrats are and disadvantage them, you are still using race. And that means ... you have committed a racial gerrymander.” – Mark Joseph Stern (11:22)
• What’s Changed and Why It Matters
  • States can no longer defend race-based gerrymanders by claiming partisan intent.
  • This ruling is anticipated to alter ongoing and future gerrymandering litigation ([12:12]).
  • Quote: “Monday’s decision stands for the proposition that when a state divides its voters on the basis of race for the purpose of redistricting, it has pretty much broken the law.” – Mark Joseph Stern (11:29)

Justice Clarence Thomas’s Role

• Thomas’s Consistency
  • Despite the liberal outcome, Thomas's vote is rooted in his longstanding opposition to any use of race in public policy, seeing all race-conscious measures—benign or otherwise—as unconstitutional ([12:36]).
  • Quote: “Thomas is still righteously pissed off at any state that takes race into account. And he'll follow that principle even when it leads him to a liberal outcome.” – Mark Joseph Stern (13:15)
  • Quote: "He gets to virtuously say, I am for race blind, whatever that leads me, I am for strict scrutiny whenever race is used." – Dahlia Lithwick (14:19)
• Future Implications
  • Unlikely Thomas will consistently support liberal justices in other types of gerrymandering cases, particularly those about pure partisanship ([15:01]).

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2. The Horizon: Partisan Gerrymandering and What's Next

[16:24–20:32]

Gill v. Whitford and Justice Kennedy’s Influence

• The Case: Wisconsin’s partisan gerrymander challenged on grounds that it so disadvantaged Democratic voters as to violate their constitutional rights ([17:12]).
• Role of Justice Kennedy
  • He signaled concern about partisan gerrymanders but has been wary of judicial involvement without a clear, manageable standard.
  • Key Question: Will the “efficiency gap” formula—designed to measure extreme partisanship in redistricting—be the standard that sways Kennedy?
  • Quote: “You know, the larger problem of partisan gerrymanders.... What Kennedy thinks about partisan gerrymanders is almost the only game in town.” – Dahlia Lithwick (16:24)
• Uncertainty Ahead
  • Kennedy’s recent alignment with conservatives in the NC case has voting rights advocates worried about the Supreme Court’s approach to pure partisan gerrymanders ([19:10]).

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3. DOJ Targets Immigrants Rights Project in Seattle

[20:33–38:18]

Interview: Jorge Baron, NWIRP

[21:26–38:18]

What is NWIRP?

• A 33-year-old nonprofit providing legal services to immigrants in Washington state, both through individual representation and advocacy/litigation ([21:43]).

Systemic Issues: No Right to Counsel in Immigration Proceedings

• Immigrants in deportation proceedings are not entitled to government-provided legal representation; thus, nonprofits fill the gap ([22:21]).
• The “traffic court” vs. “death penalty” hearing analogy: High stakes with limited procedural protections ([23:44]).

The 2008 DOJ Regulation

• Targeted “notario fraud”—unqualified individuals posing as legal professionals.
• Rule says anyone preparing documents for immigration court must file a “notice of appearance,” committing them to full representation. Nonprofits, with limited resources, have worked out informal arrangements to provide limited scope help ([25:15]).

The Cease and Desist Letter

• In April 2017, DOJ issued a letter to NWIRP ordering them to either fully represent or completely withdraw from the cases—essentially banning “unbundled” legal help ([24:56], [27:44]).
  • Quote: “It immediately had an impact on us because we had to stop and hit pause on a lot of work that we do day in and day out with people who are facing deportation proceedings.” – Jorge Baron (27:44)

Legal and Constitutional Challenge

• NWIRP files suit, arguing DOJ’s enforcement of the regulation violates their First Amendment rights and oversteps federal authority (raising Tenth Amendment concerns) ([29:26]).
  • Quote: “There's a lot of long line of Cases at the Supreme Court level that talk about the right of association and the freedom of speech of lawyers...” – Jorge Baron (29:26)

Selective Enforcement? Retaliation?

• Only NWIRP received such a letter; DOJ could not cite any client complaints or harm ([29:00], [31:24]).
  • The timing, right after NWIRP’s involvement in lawsuits over Trump’s travel ban, suggests possible retaliation ([35:04]).
  • Quote: “It's the equivalent of there being a mass casualty event and you're a doctor trying to stem the bleeding from a number of different patients and somebody comes in and tells you, actually you can't help all those people. You just gotta like stick with one.” – Jorge Baron (36:32)

Temporary Victory and Next Steps

• Judge Richard Jones grants NWIRP a nationwide injunction, allowing them and similar organizations to continue providing limited help while further litigation proceeds ([32:38], [38:18]).

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Notable Quotes & Memorable Moments

• “If you use race in any capacity... you have committed a racial gerrymander.”
  – Mark Joseph Stern (11:22)

• “Thomas is still righteously pissed off at any state that takes race into account. And he'll follow that principle even when it leads him to a liberal outcome.”
  – Mark Joseph Stern (13:15)

• "It's the equivalent of there being a mass casualty event and you're a doctor... and somebody comes in and tells you, actually you can't help all those people.”
  – Jorge Baron (36:32)

• “What Kennedy thinks about partisan gerrymanders is almost the only game in town.”
  – Dahlia Lithwick (16:24)

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Timestamps for Key Segments

• [00:33–13:15] – Cooper v. Harris Ruling and Racial Gerrymandering Jurisprudence
• [13:15–15:01] – The Unique Consistency of Clarence Thomas
• [16:24–20:32] – The Future: Partisan Gerrymandering and Gill v. Whitford
• [21:26–27:44] – Interview with Jorge Baron: NWIRP’s Work and DOJ Attack
• [27:44–32:38] – Legal Reasoning and Court Response
• [35:04–38:18] – Broader Immigration Enforcement Context, Judge Jones’ Injunction

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Summary Takeaway

This episode highlights a pivotal moment in Supreme Court jurisprudence—clarifying that when race is used, even as a proxy for party, in redistricting, it constitutes unconstitutional racial gerrymandering. Justice Clarence Thomas’s consistent opposition to any governmental use of race, regardless of political alignment, is explored in detail.
In the second half, the discussion spotlights a worrying DOJ directive that threatens to curtail legal services for vulnerable immigrants, underlining the crucial role of nonprofits and the chilling effect of selective enforcement. The episode is both a celebration of legal victories and a cautionary tale about the ongoing fragility of civil rights and access to justice.

Transcript

[Jorge Baron]

It's the equivalent of there being a mass casualty event and you're a doctor trying to stem the bleeding from a number of different patients and somebody comes in and tells you, actually you can't help all those people. You just gotta like stick with one.

[Mark Joseph Stern]

For decades, states like North Carolina have gerrymandered on the basis of race and then gone into court and said all we were really doing was sticking it to Democrats. They can't do that anymore.

[Dahlia Lithwick]

Hi and welcome to Amicus Slate's podcast about the law and the courts and the Supreme Court. I'm Dahlia Lithwig. Now, if you're a longtime listener of this show, you've probably noticed a little shift away since say, last fall from what had been a pretty single minded focus on the show on the highest court in the land with law related fireworks going off all over the place. Since inauguration, we've been trying to do our best bi weekly to keep up with everything. Now, before this Jim Comey situation blew up, a lot of those fireworks had to do with Trump's possibly unconstitutional travel ban. And today on the show, we have for you yet another installment in travel ban. O Rama. Turns out the Justice Department is actually going after some of the immigration attorneys in Seattle who so happen to have been involved on behalf of immigrants in the travel ban wars earlier this year. But first, the court. And this week with the president abroad and the budget and health care scoring and everything else happening here at home, you may have actually missed a surprising big, huge decision that came down from the Supreme Court, which still is somehow doing stuff. The case involved race and gerrymandering and we actually covered it on the show. What was surprising was the very odd grouping of justices in the majority. So this was a case that we covered when was argued in December. It posed a question about whether two gerrymanders approved by the North Carolina legislature violated the 14th Amendment because they were driven by race considerations instead of just political considerations. Keep that in your head. We'll get back to it now. Eight justices heard the case, Cooper versus Harris. Neil Gorsuch was not yet on the court. On Monday, all eight of them agreed that one of the majority minority districts in question, District 1, was in fact unconstitutionally gerrymandered. But as to District 12, the court split 5, 3 and the swing vote, joining the court's four Democratic nominees to strike down this gerrymander was, wait for it, liberal icon Justice Clarence Thomas. Now joining me to chew over this surprising result and what may be coming down the pike soon at the Supreme Court on this issue of redistricting and gerrymanders is my slate. Comrade in arms, Mark Joseph Stern. Mark, it's always a joy to have you on the show. Welcome back to amicus.

[Mark Joseph Stern]

Always a pleasure to be in the barricades with you, comrade.

[Dahlia Lithwick]

Okay, so here's my question mark. First of all, this is not the first big voting rights bombshell from the high court. It's not even the first big voting rights decision this month. Can you just back up and tell us about last week. The justices declined to hear another big voting case out of North Carolina. And you are our North Carolina correspondent, tell us about that one and what the chief justice had to say about it.

[Mark Joseph Stern]

Yeah. So last week, the justices declined to review a lower court decision from the 4th U.S. circuit Court of Appeals striking down North Carolina's omnibus voter suppression law. I call it that because it slashed early voting. It cut the number of methods by which people could vote. It created this very stringent voter ID requirement. And the 4th Circuit had ruled that the entire law was up, unconstitutional and unlawful under the equal Protection Clause and the Voting Rights act because, and this is a quote from the opinion, it targeted African Americans with almost surgical precision. Now, one would probably expect Justices Samuel Alito, Clarence Thomas, Chief Justice Roberts to want to take a look at that decision from the 4th Circuit and maybe give North Carolina another chance to prove themselves and throw up enough pretext over their voter suppression law to make it pass legal muster. But instead, the court unanimously turned away North Carolina's appeal, said, we are not taking this case, and effectively allowed the Fourth Circuit decision to stand as precedent moving forward.

[Dahlia Lithwick]

Precedent in the 4th Circuit, though, right? This does not have national implications, but it certainly smacks the heck out of North Carolina, correct?

[Mark Joseph Stern]

Yes, that's right. It smacks the heck out of North Carolina. It stands as precedent for the other states within the 4th Circuit, including South Carolina and West Virginia. And one might hope that the decision will be persuasive to other circuit courts that are looking at these issues. But Chief Justice John Roberts attached a strange little statement to the court's decision not to hear the voter ID case out of North Carolina and said, look, this isn't really about the merits of the case. We don't think that this case was necessarily correctly decided. We just think that it's way too confusing for us to take because during the course of the appeal from the 4th Circuit, former Republican Governor Pat McCrory was voted out of office in North Carolina and replaced by a Democrat who refuses to defend the law. And so there's this complicated question about who actually has standing to defend the law. So the chief tried to make it very clear that this was not about supporting the 4th Circuit's decision in any way. This was just about a technicality. And the justices will have their chance to sink their teeth into another voter ID case come pretty soon.

[Dahlia Lithwick]

And before we talk specifically about Monday's case, I want you to just help us understand this case that we're going to talk about now is about racial gerrymanders. But the actual districts in North Carolina are so crazy, Mark, and so octopusy. They've actually been at the heart of. Am I right? 4 earlier gerrymandering cases at the court. I mean, these districts, like, they don't die.

[Jorge Baron]

Right.

[Dahlia Lithwick]

This is. Why is this.

[Mark Joseph Stern]

Well, this is actually the fifth time that District 12, the one that the court divided on, has come before the Supreme Court itself. The reason why is that when we talk about racial gerrymandering, there are really sort of two forces weighing on states as they draw these districts. On the one hand, there is the equal protection clause, which prohibits states from using race as a predominant factor in districting. You can't use voters race as the key factor when you're drawing these lines. On the other hand, there's the Voting Rights act, which has been interpreted to bar states from redistricting in a way that can dilute minority voters voting power. And so some states, for a time, and we'll get into this as we talk about the specifics of the case, some states actually went out of their way to gerrymander on the basis of race to comply with the Voting Rights Act. The court said, you're not allowed to do that. Other states have tried to ignore race altogether, said we're just going to leave it out of the equation, and then gone ahead and used partisanship. And the court said, well, we're not so sure about that. There's a lot of very confusing case law here that doesn't put a clear path forward for states that want to redistrict legally while giving the party in power a significant electoral advance.

[Dahlia Lithwick]

Well, why don't you explain the precedent? Because that's, I think, what's confusing. Right. We've got. We've got a line of cases that do exactly what you're describing, Mark, which is, say, take race into account except when you don't, and use party instead of race except when you don't. So can you just help us understand what needle it is that the states are trying to thread when they create these districts? Yes.

[Mark Joseph Stern]

And for the most part, the answer is simple. The states are trying to keep the majority party in power. That's what they're doing. And they want to do it in a way that passes muster at the court, which means it can't fully dilute black voters power. At the same time, it cannot be so race conscious that it qualifies as a racial gerrymander. So, you know, this problem sounds really, really difficult, and I'm framing it in a way that makes it sound almost impossible. In fact, it's not that hard. And plenty of states have figured out a way to do it, just not in the South. The south is the area where a lot of these racial gerrymander cases come up. And the reason why it becomes so diffic is that where we stand right now, the court says that racial gerrymanders are unconstitutional. But partisan gerrymanders, gerrymanders that are only designed to disenfranchise voters of the minority party, those are okay. And so for decades we have seen Southern states use race as a proxy for party. And this is exactly what North Carolina did in this case. They actually divided their voters on the basis of race. But when they went to court, NC State said we weren't really thinking about their race and trying to discriminate against them for being black. We were simply assuming, correctly, for the most part, that black voters will be Democrats. And it's the Democrats we were really trying to stick it to, not the black voters.

[Dahlia Lithwick]

So this brings us to Elena Kagan, right, And her quite astonishing majority opinion for what turns out to be five justices in the majority. Now this is she really, in some ways, and I think you pointed out, even in your write up in a footnote, changes everything and somehow gets Clarence Thomas to sign on. So, so what is Elena Kagan doing to shift the ground we're on so.

[Mark Joseph Stern]

She changes everything in footnote seven, if anyone wants to go run to the PDF and look this up, it's really worth, I think, digesting carefully because what Justice Kagan says is that if a state uses race as a proxy for party, uses race to determine the political affiliation of group of voters, that that in itself is still a racial gerrymander. It doesn't matter if it's made more sellable by the fact that it's divided by party allegedly according to the state, it doesn't matter what pretexts are layered on top of it. If you use race in any capacity, if you're using it to try to figure out who the Democrats are and disadvantage them, you are still using race. And that means that you have committed a racial gerrymander that's subject to strict scrutiny and almost certainly constitutional muster.

[Dahlia Lithwick]

And tell us again, because it sounds like what you're saying is so wonky, but this is a big honkin deal, Mark, tell us why.

[Mark Joseph Stern]

Yeah, it's a huge deal. Because for decades, really, the case law here is infuriating to voting rights activists because for decades, states like North Carolina have gerrymandered on the basis of race and then gone into court and said all we were really doing was sticking it to Democrats. They can't do that anymore, not after Monday's decision. Monday's decision stands for the proposition that when a state divides its voters on the basis of race for the purpose of redistricting, it has pretty much broken the law. That is a huge step forward. That is a really big deal. And I think it will probably already alter the outcome of a lot of gerrymandering litigation that's in the courts at this point.

[Dahlia Lithwick]

Okay, so this brings us inexorably, my friend, to Clarence Thomas, because the initial reaction on Monday was, ah, is he a liberal? Or more pointedly, does he just not read the footnotes? But you and I, I think, agree that there was a lot more going on than that and that Clarence Thomas is in fact, not being wildly inconsistent by joining the four more progressive members of the court this time.

[Mark Joseph Stern]

Right, Right. I think Clarence Thomas is probably the most consistent justice when it comes to racial gerrymandering, because he has a long memory and he remembers back in the 90s when these cases happen, had totally flipped political issues. Back then. North Carolina was run by Democrats, and Democrats were actually gerrymandering the state in an effort to create black majority districts so that black voters could choose their own representatives. This was something that the Justice Department saw as mandated by the Voting Rights Act. At the time, this was a commonly held notion of that in order to comply with the Voting Rights Act, a state has to create certain districts that have a lot of black voters, usually a majority of black voting age population, so that they can choose their own representative. Because that's what people thought to be a voting rights victory in the 1960s when this law was passed. Back then, when racial gerrymanders were seen as a form of affirmative action for blacks, Clarence Thomas hated it. The conservatives hated it. Clarence Thomas was one of them. He thought that it was benign racism. Racism is still racism. He treated it the same way that he treated affirmative action in colleges and law schools. He said, if you're taking race into Account, you're breaking the law. And he continues to hold that view today, even if his fellow conservatives have kind of flipped. Now they're saying, sure, use race, whatever, it's all good. Thomas is still righteously pissed off at any state that takes race into account. And he'll follow that principle even when it leads him to a liberal outcome.

[Dahlia Lithwick]

Right. So he's really the last consistent justice on this. This is an example I think you wrote of. You know, everybody flips and everybody has to kind of backpedal a little. And Clarence Thomas gets to virtuously say, I am for race blind, whatever that leads me, I am for strict scrutiny whenever race is used. Right?

[Mark Joseph Stern]

Yes, that's exactly right. And I think he gets a well deserved victory lap in this case because he's getting a lot of credit from corners he doesn't usually get credit from. And you know what? He's earned it. He's been sticking to his guns for decades. And, and finally, in this instance, it brought him some well deserved acclaim.

[Dahlia Lithwick]

What does it mean going forward? Does Elena Kagan have Clarence Thomas in her pocket? Sure. Saying now he's on board for any opinion she writes on gerrymanders?

[Mark Joseph Stern]

Well, nobody has Clarence Thomas in their pockets, unfortunately. He's always a wild card. And no, the short answer to your question is that the bulk of gerrymanders in this country are not really racial gerrymanders. They are partisan gerrymanders. They are drawn by the party in power to disempower the minority party. And in a lot of states like Wisconsin, they're not drawn along racial lines. They're simply drawn along partisan lines. And the issue here is that every conservative member of the current court, almost certainly including Justice Gorsuch, seems pretty skeptical of halting purely partisan gerrymanders. In fact, Justice Alito's dissent has this weird little encomium to partisan gerrymanders. He views them as nothing more than politics as usual and says it would damage the courts and damage the country to wade in and try to stop them. Sadly, Justice Kennedy joined Justice Alito's dissent, and Justice Kennedy's vote is going to be absolutely critical to any effort to strike down partisan gerrymanders as unconstitutional. Monday's decision brought us a lot of good news in terms of racial gerrymanders, but it's not clear that it extends much farther beyond the fact pattern in the case itself.

[Dahlia Lithwick]

So here's your opportunity to talk about Gill v. Whitford. This really is the blockbuster case that does, I think, try to tackle what you're describing. You know, the larger problem of partisan gerrymanders. And you've just said it, but, you know, we can't say it enough on this show. What Kennedy thinks about partisan gerrymanders is almost the only game in town. So how much do you read into Justice Kennedy's decision to join with Alito in this case, and what does it signal going forward when the court really gets a case that may once and for all sort this issue out?

[Mark Joseph Stern]

You know, it really worries me because I think that case will come next term in Gil v. Whitford, which is the challenge to Wisconsin's gerrymander.

[Dahlia Lithwick]

Stop and talk about that case for a minute, Mary. Tell us what that's about.

[Mark Joseph Stern]

So that's a challenge to Wisconsin's gerrymander, alleging not that it was a race based gerrymander, but that it was so extremely partisan that it burdened the rights of Democratic voters who no longer had any real power to choose their preferred representative. Their vote had just been diluted to such an extreme extent that they had lost their representational rights. The plaintiff 1 in the court below. And there is a funny kind of appeals process that will almost certainly force the Supreme Court to take the case, and it will probably be next term. The question here is what Kennedy will do. Because in 2004, Kennedy said he thought partisan gerrymanders posed grave constitutional concerns. But he also said that he wasn't certain how you could measure gerrymanders and create a sort of concept, consistent tool for determining which are too partisan and which are within normal political limits.

[Dahlia Lithwick]

And Gil presents us with a formula, right? We actually have a way to measure. And the hope was, hey, Justice Kennedy, you said, do my homework. Here's my homework. I'm showing you a formula for finding partisan political gerrymanders.

[Mark Joseph Stern]

Yes, that's right. These two really brilliant academics created something called the efficiency gap. It's a pretty simple equation. I won't explain all of it, but what it basically does is measure how many wasted votes there are in each election. Basically, how many votes were cast for the winning candidate that weren't necessary for that candidate to win, and how many votes were cast for the candidate who didn't win. There's a sort of comparison between the two, and it churns out a number. These two academics weighed, measured, analyzed elections from the last four decades and found that the usual efficiency gap that puts a party permanently in power is 7. So if a state's efficiency gap exceeds 7, then the majority party has probably locked in its power to such an extent that no matter how hard the minority party works, it will never be able to retake power. That is the exact kind of thing that Kennedy said he was looking for back in 2004, an equation. You plug in the numbers, you run the formula, you come out with result, and it's either yes or no. This is constitutional, or it's not. It's a lot like what we already do in one person, one vote cases where we measure districts to make sure they have roughly equal population sizes. And there's no reason why it would introduce extreme complexity to the partisan gerrymandering area. But Kennedy's decision to join Alito's dissent, that's troubling because he seems to be drifting in the wrong direction here, saying, hey, I'm a little concerned about, about courts and federalism and states rights. Maybe we should just cool down here and let the partisans keep gerrymandering. That's really bad news for voting rights activists. And I certainly hope that this was just a blip for Kennedy and not some kind of real change of heart.

[Dahlia Lithwick]

Mark Stern covers the courts at Slate, and he is, as I mentioned, basically the governor of North Carolina at this point in terms of covering North Carolina for Slate. Mark, thank you so very, very much for joining us this morning week.

[Mark Joseph Stern]

Always a pleasure.

[Dahlia Lithwick]

Last week, Rachel Tiven wrote a pretty disturbing piece in the Nation that featured the Northwest Immigrants Rights Project. That's the nwirp. The NWIRP is a well known, well respected nonprofit in Seattle. They represent several thousand immigrants a year in deportation proceedings. And they really came to take a starring role in the early days of litigation around Donald Trump, Trump's travel ban. Well, that group received a strange cease and desist letter in April from the Justice Department threatening disciplinary action unless they stop representing clients and closed down the entire asylum advisory program. Weird. Well, joining us to help understand what that was about is Jorge Baron. He's the executive director of the NWIRP in Seattle. Jorge, welcome to Amateur.

[Jorge Baron]

Thank you. A pleasure to be here.

[Dahlia Lithwick]

And can you just help us understand, even before we talk about this letter, can you tell us what NWIRP does? I think folks started probably really hearing about you during the travel ban era. But can you give us a little background?

[Jorge Baron]

Sure. We're a nonprofit that's been here working in Washington state for the last 33 years. And over time, we've, we've come to grow into a relatively large nonprofit working on immigration legal services. And, you know, most of our services are focused on individual cases, helping people navigate the immigration system from an asylum case to deportation hearings to a number of other immigration cases. And then we also do, you know, systemic advocacy where we're trying to challenge policies like the Muslim ban and other things, as well as doing a lot of community education here locally in the community.

[Dahlia Lithwick]

So can you help us? Because I think folks probably don't quite realize that if you're an immigrant and you're in the middle of a deportation proceeding, you actually don't have a right to counsel. Right. You're in this kind of no man's land where you desperately need legal assistance, and you're not entitled to it. Right?

[Jorge Baron]

That's exactly right. And that's the heart of the issue here, is that people who are facing this deportation hearing, you know, an immigration court looks like any other courtroom that you might think of. You have an immigration judge with a black robe. You have a government prosecutor, what they call the trial attorneys from immigration and Customs Enforcement who are making the case as to why this person should be deported. And then on the other side, we're used to seeing, in the criminal justice system, you would see a defense attorney, and if the person can't afford an attorney, it would be a public defender. But in the immigration court system, there is no public defender system. So you can bring an attorney if you can afford one. But if. If you don't have an attorney, if you can't afford an attorney, then you don't get to have one unless you can get help from a volunteer, a pro bono attorney, or one of the nonprofits. But the challenge is that nonprofits across the country do not have anywhere near the resources that we need to be able to represent everybody who needs assistance in deportation cases.

[Dahlia Lithwick]

So I think the nation article put it nicely. They said, this is if you are an immigrant facing deportation, it's kind of like you're at a death penalty proceeding, except it's being conducted as though it's traffic court. Right. It's your whole life is in your hands, but it's just you're sort of being funneled through pro se, and you don't have a ton of resources. And as a result, all these groups spring up like yours that are trying to patch that hole, correct?

[Jorge Baron]

That's exactly right. So we're put in the situation where we would love for everybody to have an attorney in the whole case. Right. I mean, I think that would be the ideal scenario. But given the reality that we have where we don't have the resources to help everybody fully as we would would want, we're providing this limited assistance to a lot of people. So just to Give kind of a concrete example somebody who might be facing deportation, who wants to pursue an asylum case before the immigration court, we might help that person understand how to fill out an asylum application that they'll then present to the immigration court on their own later on. And we've been doing this, and many organizations around the country do this regularly for many years without trouble, until we got this letter from the immigration court system.

[Dahlia Lithwick]

Okay, so now I need you to explain, before you tell me exactly what this cease and desist order says, I need you to explain what the 2008 rule is, the Justice Department rule that they now seem to be sort of weaponizing against you in your work. What was that trying to combat?

[Jorge Baron]

Sure. Well, that regulation came down, you know, as you mentioned, in 2008, so, you know, nine years ago, and, you know, it was meant is a set of reforms that the Department of Justice enacted to try to fight back against issues of people trying to take advantage of community members, particularly something that's often referred to in the immigration world as notaria fraud. So these are people who are not attorneys, who use the confusion in a lot of folks from Latin American countries. And those Latin American countries, being a notario is a. An attorney with highly specialized skills. But of course, here in the US Being a public notary doesn't require legal training. And so folks in the community perceive that these folks have some sort of legal training and they might turn to them for assistance when they're not actually authorized to practice immigration law. And so the regulation was meant to say that if you are going to complete any kind of documentation in these cases that is going to be presented to immigration court, you need to submit a notice of appearance before the immigration court and sort of disclose the fact that you're doing this. The challenge with that is that when you enter a notice of appearance, you are committing to representing the person in the entire case. So at the time that the regulation came out, many of us in the nonprofit sector sort of pointed out that there was this gap that if we were required to provide notices of appearance, this would be a problem for nonprofits. And there's kind of an unwritten understanding. And many of us had conversations with the local immigration courts, and they said, well, as long as you disclose what you're doing, that shouldn't be a problem. And in fact, that's how we operated for the last nine years, where we actually put down our name and said this filing or this application was prepared with the assistance of Northwest Humigan Rice Project. And that way we cure that Concern of the fact that there was somebody who was trying to take advantage of this individual by fully disclosing that we were helping the individual pro se. And, you know, that arrangement worked out fine until April of this year.

[Dahlia Lithwick]

Okay, so table is set. April of this year. In the mail comes a cease and desist that says, now we're going to treat you different. Now we're going to hold you to this 2008 rule. And the claim is what exactly? They're saying that you're not all in. You're not being transparent enough, and you, too, may be committing fraud, Jorge?

[Jorge Baron]

Well, they didn't say that we were doing anything in terms of the actual substantive help that we were providing the individuals. They didn't claim that in any way the assistance that we had provided had been deficient or problematic. They just said you're not complying with the strict letter of the rule that says that if you provide any type of legal assistance that constitutes sort of legal advice and preparation and practice before the courts, that you have to then enter this notice of. Of appearance, which, of course, commits you to representing people fully. And it immediately had an impact on us because we had to stop and hit pause on a lot of work that we do day in and day out with people who are facing deportation proceedings. And so we quickly responded to the immigration court trying to clarify, saying, you know, we've been doing this for a long time, and we don't understand this is limiting all of these things. Can you please clarify and sort of take this back? And unfortunately, they did not. And that's when we decided we needed to move forward in litigation to be able to preserve both our rights and the rights of our clients.

[Dahlia Lithwick]

And, Jorge, it's worth pointing out, the cease and desist doesn't go out to every immigration project in the country. Right. It's yours. That's it.

[Mark Joseph Stern]

Right.

[Jorge Baron]

And it was very much directed at us. And I think one of the first things we did is we reached out to a lot of our colleagues across the country because we thought, well, maybe this is kind of happening, happening across the board, and other folks are getting these kind of letters, and nobody else had received that letter.

[Dahlia Lithwick]

So you actually file suit. Right. And you claim what. What is the substance of the legal claim when you seek to enjoin this?

[Jorge Baron]

Well, so our claim has been that the way that this is being applied and the way that the regulation is set up is a violation of primarily our First Amendment rights. And that's as advocates, and there's a lot of long line of Cases at the Supreme Court level that talk about the right of association and the freedom of speech of lawyers, particularly when we're engaging in advocacy related to matter of such significant public concern as immigration, and that the government is sort of saying, well, you can't speak on the subject unless you do it the way that we tell you to do it. And that obviously raises significant First Amendment concerns. And there's also an argument that we've raised about the fact that the regulation of the practice of law is generally done at the state level. And the immigration courts kind of use. You have to be licensed in a state to be able to do that. So the immigration system sort of relies on the regulation of the practice of law by the states. But this is an attempt to sort of impose a requirement that actually the states don't have. Our Washington State Bar association here has made it very clear that it's completely ethical and appropriate for attorneys to provide limited legal assistance. And so here come the Fed saying, no, actually, you can't do that. So we've raised also a claim that this is a violation of the 10th Amendment and that it's having the feds impose different rules from what the state has considered to be appropriate.

[Dahlia Lithwick]

Huh. How very red state of you. So, Jorge, here's my question. You have a hearing before U.S. district Court Judge Richard Jones. Does the Justice Department allege that you've done anything wrong at this hearing? I mean, do they come forward and say, man, these guys really are basically notarios and they are misleading clients, or they just kind of shrug and say, well, this is the rule and we're just. Now we're going to enforce?

[Jorge Baron]

Was definitely the latter. And in fact, Judge Jones, during the hearing, certainly pressed the government's attorney, saying, well, do you have any evidence that they've done anything inappropriate or they've done anything deficient? And the government attorney, basically the response was simply, I don't have any information about that. I think he tried not to say, like, no, but obviously the ultimate response was that they didn't have any evidence that we'd done anything wrong. And so I think, you know, we agree that there is a role for the federal government to make sure that people are not being taken advantage of. But the problem here is that as we made the case in court, this is actually creating a situation that is going to create even more problems, because if people don't have the way to get assistance, to get this limited assistance by legitimate nonprofits and attorneys, then they're gonna have nowhere else legitimate to turn to. And they're gonna turn to the folks who do wanna take advantage of them. So to the extent that they're trying to prevent fraud and prevent unauthorized practice of immigration law, this is actually very, very counterproductive.

[Dahlia Lithwick]

So, Jorge, last week, Judge Jones actually grants your injunction. It's actually a nationwide injunction, so. So you're back in business. What happens next?

[Jorge Baron]

Well, next we're going to have a preliminary injunction briefing. And we hope that Judge Jones will maintain the current situation and allow us, not only us, but our nonprofit partners around the country, to continue to provide this form of limited assistance to folks who desperately need it.

[Dahlia Lithwick]

So I have to ask you, because it feels to me that this is very much of a piece of. Of the sort of Jeff Sessions approach to Justice Department business, which is sort of using a law that is intended to do one thing and using it to do exactly the opposite. And I'm thinking of the ways in which, for instance, you know, their claims that, oh, we're using the Voting Rights act to help make sure that we can suppress the vote. This feels like it's of a piece with that general theme, right, that you use a law that's intended to smoke out, you know, sort of fraudulent conduct among immigration law pretenders and stop actual immigration lawyers from helping actual immigrants. Right.

[Jorge Baron]

Well, I think we're certainly concerned that that's the case. And of course, you know, we don't know exactly what's happening inside the Department of Justice. I will say that Judge Jones expressed concern about the timing of all of this because he asked the government, well, you know, this regulation was enacted in 2008, you know, and we clearly said, you know, we've been doing this. We talked to the immigration court back at the local immigration court in 2009, 20 about this. And why is it that all of a sudden only now are you coming after this group? And I think the government didn't really have a satisfactory answer to that question. And in the order that Judge Jones issued, he talked about his concerns with potentially targeted enforcement. And I think part of the rationale that he was expressing was that the way that the regulation is being applied is so vague that it gives the Department of Justice sort of a tool. It's very unclear. And so it can pick and choose who they want to come after in a potentially retaliatory manner. So we certainly are concerned about that, and we're glad that Judge Jones stepped in to prevent this from happening.

[Dahlia Lithwick]

So that leads me to ask the question that I think is at least implied, Jorge, in the article in The Nation, which is why now? Why. Why did the Justice Department choose this moment to go after your group?

[Mark Joseph Stern]

Well, I think, you know, and I.

[Jorge Baron]

Think the Nation article was suggesting that this was a direct, potentially a direct retaliation because of our work around the travel ban. And, you know, the honest answer is that, you know, we don't know if that's the case. I think there's a lot of sort of circumstantial evidence that it could be that because of the timing of when this happened, the that fact, fact that our organization is the only one that was targeted this way, even though this is the kind of activity that gets engaged by many other nonprofits around the country. And so, you know, it's certainly a concern. I think it's a concern that Judge Jones seemed to have in the hearing. And I think that's, you know, deeply problematic because I think that what we're doing is advocating for our clients doing legitimate work in front of the federal courts, asserting people's rights. And it would be deeply disturbing if, because of that advocacy, the government is going to use other tools to try to target nonprofit organizations. So it is a concern that we have that it could be.

[Dahlia Lithwick]

So talk a little bit about. I think NWIRP got a lot of attention last week around this cease and desist order. But this comes about in a context. This comes about in a moment when there's new ICE enforcement priorities, there's real on the grid work to be done. There's a huge uptick in what you need to be doing. Can you talk a little about the backdrop of what's happening in your day job when you're not fighting off cease and desist letters?

[Jorge Baron]

Well, and this is exactly what we've been trying to respond to. Has been there has been already and has been reported a big increase in the number of arrests that Immigration and Customs Enforcement has made made since the president took office. And this is on top of a very significant number of people who are already in the deportation process. So we're seeing an increasing level of people being funneled into the deportation system. And we are like our nonprofit partners around the country getting more and more calls from community members saying, my cousin just got picked up by immigration neighbor somebody in my congregation. And so we're fielding these calls and the resources are particularly strained to be able to respond to people who need immigration legal assistance. So in that context, it particularly feels like adding insult to injury to then say we're taking away one of the key options that you have to be able to provide assistance in this context, it's the equivalent of there being mass casualty event and you're a doctor trying to sort of stem the bleeding from a number of different patients and somebody comes in and tells you, actually you can't help all those people. You just gotta like stick with one till you get them to the hospital. And you can't touch any of the other patients because you might be sanctioned otherwise. It just seems tremendously unfair and very concerning. We think that the government should be trying to identify ways to fund representation for people in deportation proceedings. I don't think in the current political environment that's likely, but the very least they could do is not get in the way of people who are trying to provide assistance in this context.

[Dahlia Lithwick]

Jorge Baron is the executive director of the Northwest Immigrants Rights Project and he joined us today from Seattle. Thank you, Jorge.

[Jorge Baron]

Thank you so much, Sally. Appreciate it.

[Dahlia Lithwick]

And that is going to do it for this week's edition of Amicus. We have said it before, we will say it again. We love to hear your thoughts. In fact, we depend on them because otherwise it's just me and Tony talking to ourselves in the studio. You can always find us on [e-mail] amicus podcast. Our email is amicuslate.com and we are so pleased that you really are hearing the invitation to write to us loud and clear. So thank you to all of the good listeners who wrote in to let us know about the eight minute long technical glitch that briefly appeared in our last episode until we fixed it. We really appreciate your backup. We're sorry for the mistake and I'm sorry that I swore one time. Remember that all of our past episodes are available for your listening pleasure on our show page. You will find [e-mail] Amicus if you're a Slate+ member, you will find transcripts of our shows there. If you're not, you really should be. You can always sign up for a free two week [e-mail] amicus plus a big thank you as always goes out to the Virginia foundation for the Humanities where our show is taped. Our producer is Tony Field. Steve Lichti is our executive producer and and Andy Bowers is the Chief Content officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at Panoply fm. I am Dahlia Lithwick. We will be back with you in two weeks with yet another edition of Panic.