Amicus with Dahlia Lithwick | "General Strike"

Episode Date: February 18, 2017
Podcast Theme: Law, Justice, and the Courts—Analysis of key legal issues facing the U.S., including Supreme Court activity, immigration policy, border patrol accountability, and executive branch ethics.

Episode Overview

This episode centers on the legal battle against President Donald Trump’s controversial 2017 executive order on immigration (the “travel ban”) and previews the Supreme Court case Hernandez v. Mesa, about constitutional protections at the U.S. border. Host Dahlia Lithwick interviews Virginia Attorney General Mark Herring about his state's successful legal challenge to the travel ban and then speaks with Supreme Court litigator Deepak Gupta about both the Hernandez case and the emerging "emoluments" lawsuit against President Trump. The episode explores questions of judicial oversight, civil rights, and the courts’ role in checking executive power.

Key Discussion Points & Insights

1. Virginia’s Legal Challenge to the Travel Ban (with Mark Herring)

[02:25–16:32]

• Uniqueness of the Virginia Lawsuit

  • The Virginia case went further than prior federal cases by addressing the constitutional question of religious discrimination, not just procedural due process.

  • Judge Brinkema’s ruling found the ban at least partially motivated by religious prejudice, deepening the national dialogue about the order’s legality.

    “Judge Brinckema really got to the heart of the religious discrimination piece of it ... it goes to the very validity of the order.”
    — Mark Herring [02:56]

• Judicial Oversight & Checks on Executive Power

  • The judge emphasized that the courts must scrutinize extraordinary executive claims — especially when constitutional rights are at stake.

    “It gets to why it's important for the judicial branch to serve as a check on the executive branch.”
    — Mark Herring [03:36]

• Absence of Government Evidence

  • The administration presented no evidence to support the ban was necessary for national security. The court relied on evidence before it, pointing out the ban could actually make the country less safe.

    “In all the years I’ve been practicing law, if one side doesn’t present any evidence at all, it’s probably because there isn’t any.”
    — Mark Herring [05:14]

• Virginia's Historical Responsibility

  • Herring reflected on Virginia’s legacy—at times being on the wrong side of landmark civil rights cases (e.g., Brown v. Board, Loving v. Virginia)—and his belief that the Attorney General has a duty to "get these cases right" today.

    “When I took office ... I thought about the special responsibility to try to get these cases right, and we don’t have to repeat the injustices of the past.”
    — Mark Herring [08:59]

• Role of State Attorneys General

  • AGs are becoming pivotal defenders of civil rights, especially when federal priorities shift or recede. Herring shares that his office is ready to "pick up some of the slack" if civil rights enforcement by the Department of Justice wanes.

    “I think attorneys general can provide a steady hand at the wheel and make sure that some of these fundamental liberties ... will continue to be there for everyone.”
    — Mark Herring [10:14]

• Importance of Public Engagement

  • Herring emphasizes how grassroots activism—protests at airports and public outcry—played a crucial role in responding to the travel ban, both legally and morally.

    “It was simultaneously uplifting and frightening ... that kind of engagement is really important.”
    — Mark Herring [13:38]

    “One of [the students] remarked that when she got here, she felt loved ... it makes a difference to policymakers.”
    — Mark Herring [15:43]

2. Supreme Court Preview: Hernandez v. Mesa (with Deepak Gupta)

[16:35–34:41]

• Case Background & Facts

  • In 2010, a U.S. Border Patrol agent shot and killed Sergio Hernandez, a Mexican teenager, from the U.S. side of the border. The case tests whether constitutional protections (notably, the Fourth Amendment) apply in such cross-border incidents.

    “What happened was the boys were ... running up to the American border fence, and Sergio was shot by a border agent ... He was shot in the head, and he died pretty quickly.” — Deepak Gupta [18:10]

• Legal Issues at Stake

  • Central question: Does the Constitution (“extraterritoriality”) protect foreign nationals harmed by U.S. officials outside U.S. borders?

  • The Boumediene framework (from Guantanamo detainee cases) vs. older, more restrictive precedent are in tension.

  • The case also involves questions of qualified immunity for law enforcement and whether courts can allow damages claims.

    “Does the Constitution apply outside U.S. territory, or does it simply ... stop at our borders? ... That's a pretty central question in this case.”
    — Deepak Gupta [21:26]

• Qualified Immunity

  • The Supreme Court-created doctrine shields officers from liability unless their violation of rights was “clearly established.”

  • The twist: Should immunity apply if the officer didn’t know the victim’s citizenship at the time of the shooting, especially when the conduct is on U.S. soil?

    “We're asking for the court to hold that law enforcement conduct that occurred entirely on US soil ... should be subject to judicial review.”
    — Deepak Gupta [32:14]

• Broader Implications & Context

  • The case comes amid heightened scrutiny of CBP actions and broader debates on immigration and executive authority.

  • Gupta draws a parallel between the government’s argument for executive deference here and in the travel ban litigation.

  • A notable amicus brief alleges CBP’s culture of impunity and inadequate oversight.

    “It's sort of eerily relevant to what's happening with the Muslim ban litigation.”
    — Deepak Gupta [28:26]

• Consequences of a Split Court

  • With only eight justices, a 4-4 tie is possible, complicating prospects for a nationwide precedent.

    “It might only be Anthony Kennedy, as is often the case.” — Dahlia Lithwick [34:41]

3. The Presidential "Emoluments" Lawsuit (with Deepak Gupta)

[34:41–45:53]

• What is the Emoluments Clause?

  • Prohibits government officials from accepting any benefits (“emoluments”) from foreign states or the federal/state government outside official salary, intended as an anti-corruption measure.

    “It's not something that's taught in law schools. But a lot of us have been focusing on this lately because the framers ... understood that it would be a problem if ... a high elected official ... was receiving payments from foreign governments.”
    — Deepak Gupta [35:15]

• The Lawsuit’s Theory & Standing

  • The Citizens for Responsibility and Ethics in Washington (CREW) sued Trump, alleging his businesses’ foreign earnings violate the Constitution.

  • Standing is argued based on resource diversion required to monitor and counteract alleged violations (“Havens” doctrine).

    “CREW is in the business of doing work on ... corruption ... it had to reallocate its resources ... That's the theory of standing.”
    — Deepak Gupta [37:02]

• Recent Developments & Ongoing Violations

  • Trump’s business ties (hotels, trademarks, foreign tenants, etc.) create continuing emoluments issues.

  • Steps announced by Trump’s team (putting sons in charge, not keeping foreign profits) do not satisfy constitutional requirements.

    “The conflicts are so stark ... The steps that the administration has taken so far ... are really just a fig leaf.”
    — Deepak Gupta [42:17]

• Broader Democratic and Constitutional Concerns

  • The danger lies in the appearance—and reality—of divided presidential loyalties and unchecked conflicts of interest.

    “The president has a pretty important job. ... They should be loyal only to the best interests of the American people.”
    — Deepak Gupta [42:04]

4. Hidden Legislative Developments

[44:45–45:53]

• Warning About Congressional Actions Amid “Chaos”

  • While attention is focused on executive controversies, significant (often deregulatory) legislation—such as class action restrictions—is being pushed through Congress with little public scrutiny.

    “Don’t forget about what’s happening over in Congress ... there is a deregulatory agenda being pushed through quietly while everyone is focused on everything else.”
    — Deepak Gupta [44:45]

Memorable Quotes & Moments

• On the Power of Community Resistance:

  “When I went to the airport, it was just total chaos. It was simultaneously uplifting and frightening ... that kind of engagement is really important.”
  — Mark Herring [13:38]

• On Executive Power & Judicial Review:

  “When the Trump administration Solicitor General’s office stands up next week and says ... you should trust the executive and the courts have no role to play, that argument is going to have a lot less credibility now than it would have had a few months ago.”
  — Deepak Gupta [30:58 & 00:14]

• Historic Perspective:

  “Virginia ... was on the wrong side of just landmark civil rights decisions ... we don't have to repeat the injustices of the past.”
  — Mark Herring [08:59]

Key Segment Timestamps

• Intro & Framing the Week’s Legal News – [00:00–02:25]
• Interview: Mark Herring, Travel Ban Litigation – [02:25–16:32]
• Interview: Deepak Gupta, Hernandez v. Mesa – [16:35–34:41]
• Interview: Deepak Gupta, Emoluments Lawsuit – [34:41–45:53]

Conclusion

This episode gives listeners a guided tour of legal resistance to executive overreach and explores constitutional questions crucial to America’s institutions in 2017. Through high-level interviews and grounded personal testimony, Amicus frames the unique responsibilities of the judiciary, state governments, and the public in safeguarding democracy.

For more episodes and detailed legal analysis, visit slate.com/amicus