← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
How To Build A Police State (With The Supreme Court’s Blessing)
00:58:53
The Roberts Court seemed skeptical of Trump’s immigration tactics at first. What changed?
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- [00:01]
Dahlia Lithwick
This podcast is brought to you by Progressive Insurance. Do you ever find yourself playing the budgeting game? Well, with the name your price tool from Progressive, you can find options that fit your budget and potentially lower your bills. Try it@progressive.com Progressive Casualty Insurance Company and affiliates Price and coverage match limited by state law not available in all states. Mom and dad, I'm growing at an alarming rate and clothes you buy me this year will be very small very soon. But at least your wallet doesn't have to be my fashion victim with low prices for school at Amazon. Hope that helps Amazon spend less, smile more. I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts, the law and the Supreme Court. As you may have noticed, while the big velvet curtains closed on the ceremonial courtroom at 1 First Street a few weeks back, the justices continue to do the nation's business, evidently remotely, occasionally quite carelessly, but always, always raising the question of why they require a ceremonial courtroom at 1 First street in the first instance, if doing law by fiat can be so easily dispensed from a first class cabin. This week the court's conserv supermajority lifted a block on Donald Trump's plans to eliminate the Department of Education. It lands a little bit like an unsigned out of office greetings from our summer break, Mr. President. Do let us know if you need anything else. So while the question is to whether the executive's effective dismantling of an entire department created by Congress and to be dissolved only by Congress is actually legal, wins its way back up to the high court, the administration can get on with effectively dismantling that department right now. So we are left yet again without any majority reasoning, and left to read fury and frustration in dissent, this time from Justice Sonia Sotomayor, calling out the, quote, grave threat to the separation of powers and the majority's willingness to reward, quote, clear defiance of the Constitution. So we're going to turn now to another area where the Supreme Court has rewarded and rewarded Donald Trump's clear defiance of the Constitution and looks increasingly likely to continue to do so. Citizenship, mass deportations, disappearing people to third countries, and the overt construction of a police state, all of which comes under the broader rubric of immigration. Almost immediately after President Trump was inaugurated, we had Aaron Reichland Melnick on the show. He is senior fellow and former policy director at the American Immigration Council, a pro immigration immigrant nonprofit aiming to defend immigrants through litigation, advocacy and more. There he focuses on border enforcement and immigration court issues, as well as the Intersection of immigration law and policy. Aaron warned us when we spoke in January about what was coming, and he tried to explain how to separate the immigration signal from the immigration noise. As this summer heats up, we asked him to come back for a checkup, check in on which of the red flags that he had hoisted back in January are now full on five alarm fires and possibly what to look for next. So, Aaron, welcome back to Amicus.
- [03:43]
Aaron Reichland Melnick
Thank you for having me.
- [03:45]
Dahlia Lithwick
It's really hard to know where to begin, but I thought we'll pick a category and you just sort of fill us in on what's been happening in the last couple of months. And I thought maybe we could just start with immigration enforcement. When you and I spoke last January, the Trump administration had just changed guidance to green light raids on schools and hospitals. And at the time, you were concerned, but maybe not alarm. And now we've seen ICE officers sitting in hospital waiting rooms and school parking lots and courthouses, and we've seen the Marines coming in to assist. What has changed about immigration enforcement in the past six months? And maybe beyond just the headlines that we keep seeing, what has really changed about immigration enforcement in the past six months?
- [04:35]
Aaron Reichland Melnick
The biggest change that we've seen so far has been in the use of personnel from other law enforcement agencies and the change in underlying tactics and the goal of what internal immigration enforcement looks like. So on the former, we've had thousands of federal agents from the FBI, the DEA, the ATF, the U.S. marshal Service, the U.S. postal Inspection Service, and even the IRS's financial crimes investigators being reassigned to bolster the manpower of ice and in essence, easily double the number of people they have to go out and do immigration enforcement in the field. The other big shift has been who they're targeting and how. When we talked last time, I said most of what ICE does is targeted enforcement. They have lists of names, they go out into the community, they arrest specific people, and under the Trump admin, they started expanding the use of so called collateral arrests where they would not just arrest the one person that they had on their target list, but if that person was near anyone else, they would just question those people about their statuses and arrest anyone they found who was undocumented. But those were still fundamentally the same kind of targeted arrests that ICE has been doing for decades. What has changed is that in May, Stephen Miller, unhappy with the pace of deportations, called together all 25 field office directors of ICE enforcement and removal operations and all 25 field office directors of ICE homeland security investigations, the two main components of ICE put them in a room in Washington, D.C. with him, Kristi Noem, and Corey Lewandowski, and screamed at them and told them, you are not hitting the numbers that I want you to be hitting, the numbers that we said we were going to be hitting. So from now on, it's about quantity over quality. And within days after that, things started looking very different. The raids in Los Angeles began a week after that. Within days after that, we started seeing immigration court arrests and ICE check in arrests, people going to places where immigrants were complying, showing up for their court hearing, and then rearresting them. And we have just seen a flight. Far more aggressive enforcement posture since then. And ICE hitting daily arrest records. Of course, you know, I put arrests in quotes here to some extent, because some of this is redetention. It's not they're arresting new people. They're just re detaining people who are already in the system. Regardless, that shift in May has had ICE doing things that we have not seen them doing maybe since the battle days of the INS in the 1970s, 1960s, when you really had the kind of roundups that you didn't see in the era after professional policing became a thing. And along with those immigration court arrests, those wide scale roving patrols in Los Angeles, which eventually led to the deployment of the National Guard, you've also seen a massive increase in work site raids. Worksite raids were usually rare. During the first Trump administration, there were only four to five major workplace raids, although one of those did involve raiding seven different meatpacking plants on a single day. Now we're seeing one or two of them a week. And they're now not just going after places that they've spent months investigating. They're doing i9 audits at random restaurants and businesses. They've raided nail salons, meatpacking plants, racetracks in red states and blue states alike. So all of this combined is just a far more aggressive pace of enforcement and a change in how that enforcement is being carried out and really who they're targeting. When they are doing targeted arrests, the primary targets are still people with some form of criminal record or final or order of removal. But when they're doing these broader operations, they're just going after anyone they can find. And as a result, the percentage of people that they're arresting that has any interaction with the criminal justice system has plummeted. And not surprisingly, after this new pace of enforcement stepped up, these raids became far more visible. Trump's approval rating on immigration plummeted.
- [08:56]
Dahlia Lithwick
So, Erin, you're Saying a couple of things that I'd like to parse, if I may. And one of them is, I think you're noting that seeing ICE and Border Patrol agents conducting what seems to be kind of conflated with domestic policing all around the country, and they're doing so far from the borders and certainly far from this, you know, 100 mile enforcement zone that I'm going to ask you to explain. I'd also love for you to explain because it's intuitive for you and not necessarily for everybody listening, why you kind of have these separate things, streams of the kinds of people who do immigration enforcement, the kinds of people who do domestic policing and the military, and they're not supposed to get all smushed together doing the same mission at the same time. So maybe if you could explain how this happened and why it's so very, very worrying for those of us who think about sort of the structures of policing.
- [09:58]
Aaron Reichland Melnick
When you look at ICE and DHS in general, a lot of people tend to conflate them all into one big blob of immigration enforcement. But the real, the reality is the Border Patrol and ICE do a few different things. The Border Patrol has primarily been a reactive agency for the last century of its history. And I say reactive because they were stationed at the border with the goal of catching people coming across. They were not going out and trying to find people who were in violation of immigration law. By contrast, ICE, which evolved from the INS's interior enforcers, did have that goal. Their goal was to find people who had made it past the Border Patrol or who had overstayed a visa and take those people into custody. And the key difference about that means that the Border Patrol could not determine who would go into their custody. They fundamentally didn't have control over the kind of people they took into custody because they were just waiting for people to cross and then stop them. Whereas ICE knows who they are going after, generally speaking, and that's how they've operated for decades. There are more than 7 million people currently on ICE's non detained docket. And that is the list of people that ICE believes they know are in the country in violation of immigration law. That list has been above a million for many, many years. Way before Biden, way before the current situation. When Trump took office the first time, that was already over 3 million people. As a result, that means ICE has to pick and choose who they go after, which is why their operations in the past have been more targeted. And all of that is distinct from ICE's Homeland Security Investigations. ARM, which is actually the old U.S. customs Service criminal investigation arm. And they are a bit more like the FBI. They have to actually go out and arrest people for violations of criminal law, which means getting together the kind of evidence you need to convict someone in court beyond a reasonable doubt. So they are doing what we would almost think of as real policing. They are going out to arrest people with the goal of prosecuting them in federal court. Whereas ICE Enforcement and Removal Operations doesn't have to prove anything beyond a reasonable doubt. They send people to the immigration court system, which is systematically biased against immigrants. And where the bars. There are no evidentiary bars for things like unconstitutionally obtained evidence. And they don't have to prove anything by a reasonable doubt. They have much lower burdens. In fact, sometimes the burden is actually on the immigrant to prove that they are not undocumented, rather than on the government to prove that the person is undocumented. So that means that those different agencies have operated differently. And what we are seeing now is all three of those agencies increasingly being put together towards the one purpose of interior enforcement. That looks like what ICE Enforcement and Removal Operations has done with a much lower evidentiary burden, with a goal of just rounding up as many people as possible. Now, the Border Patrol has done some kind of internal enforcement before. They do these things called roving patrols, which is where a little bit like a beat cop, a Border Patrol officer will drive around in their suv, and if they spot somebody who they suspect is violating immigration law, then they can pull them over, check their status, and then if they turn out to be undocumented, arrest them. And what's happening in Los Angeles, a lot of the videos that we're seeing of the Border Patrol are roving patrols. And that's what a judge in Los Angeles blocked the government from doing in ways that violate the Constitution. Because what the judge found was the Border Patrol's way of determining if somebody might be in violation of immigration law was just saying, oh, there's a bunch of Latinos standing at this bus stop. I'm going to pull over and question all of them. You know, that's not reasonable suspicion of an immigration violation, because Los Angeles has an extremely heavy Latino population, many of whom are US Citizens or lawful permanent residents, and you cannot tell immigration status from looks alone. Nevertheless, that is what the Border Patrol was doing, whereas ICE does still continue to do primarily these targeted operations where they do at least have a name on a piece of paper about who they're supposed to be arresting. And we have not seen ICE doing a Lot of these kind of roving patrol actions. So I think that is a little bit of the challenge here, because it's hard to tell if a van shows up and just grabs somebody and throws them in the van. That is actually more likely to be ICE than Border patrol, because Border Patrol, they do have uniforms. And if they're showing up, they are probably wearing a uniform that looks recognizably like a police uniform. But they're also more likely to be doing the kind of operations where they just show up and get out of the car and demand everybody, you know, show their papers versus ice who has a name and a face of somebody that they are trying to arrest and will jump out of the van, grab that one person, once they try to confirm their identity, shove them in the van, and then take them somewhere else. And that looks very similar if you don't know, like, how to spot which is which, but they are sort of operating on different types of enforcement operations.
- [15:31]
Dahlia Lithwick
Amplify a little bit what you just said, which is we're kind of hearing the administration in court making arguments about why just standing around and being Hispanic in Southern California is sufficient to establish in some kind of new totality of the circumstances, test reasonable suspicions, suspicion. It just feels like everything that you and I understood about how immigration law worked is now subject to kind of individual officers making very individualized decisions about who looks suspicious. And that the doctrine that's supposed to support that is now either fuzzy or non existent. Or the President and Stephen Miller are making it up as they go along.
- [16:19]
Aaron Reichland Melnick
Yeah, and this is where immigration law's uniqueness really comes into Play. Because in 1975, in a case called United States v. Brignoni Pierce, the Supreme Court ruled that race could be a reasonable factor in immigration enforcement. Now, in that case in particular, the court ruled that the specific use of race at issue, which was a car with Mexican looking people drove through a checkpoint and they were pulled over for that reason alone. That was not sufficient. But the court said, we are not going to rule that any use of racial profiling is wrong. Because there could be some circumstances where race may be a factor in determining if someone is an immigrant, but they didn't bless it in that particular circumstance. And in the decades since then, as the United States became less white, that kind of doctrine really fell away. And in the ninth Circuit, that case is basically no longer good law. Nevertheless, because these are questions of whether somebody looks like an immigrant, what does that mean? And how can a court or an individual officer make that determination? It's very tricky because the statute that authorizes this says any immigration officer may stop and question any person who is reasonably suspected to be a non citizen. Now, that is just a complicated question. Again, in a city like Los Angeles, I don't think there is any way that you could determine someone is reasonably expected to be a non immigrant simply because of where they are or what they look like. But the government is arguing otherwise, and they are trying to rest it on where people are. So, for example, one of the plaintiffs in the case in Los Angeles is a US Citizen who works at a car wash. Border Patrol had come to the car wash multiple times and interrogated other people at the car wash, including other workers at the car wash. And some of them were undone. Documented. And in two previous times, Border Patrol had come to the car wash, found people who were undocumented, and arrested them. Now, the third time they come to the car wash, this guy who's been working at the car wash for 10 years is a US citizen, is stopped and questioned by the Border Patrol. He shows them his id. They say, that's not enough. We need to see your passport. And he says, I don't have my passport on me. And they put him in the back of a car, drive him somewhere else. So he's functionally arrested at that point. Check his ID like, run him through a database. Yep. Turns out he is a citizen. Drive him back, drop him back off at the car wash, don't even apologize to him. And the government argued in court they had reasonable suspicion because he was at a location where undocumented immigrants had been found. And the judge pointed out, you are admitting right then and there that you didn't have reasonable suspicion, because it can't be reasonable suspicion that you are simply a Latino person who is at a location where undocumented immigrants have previously been found. And that, however, is how these operations are working. And I'll note, in Los Angeles, the Border Patrol's actions here with these roving patrols are currently being done by a man named Gregory Bevino. He is the chief of the El Centro sector Border Patrol. The El Centro sector is essentially the eastern two thirds of California. The western third is the San Diego sector that runs entirely north to south across the entire state because the border includes the coastal border. So 100 miles from the coast of California is all still within the Border Patrol's enhanced range for doing these kind of operations. And Gregory Bevino is no stranger to these lawsuits. In fact, within weeks after Trump took office, he began doing a similar operation to what was happening in Los Angeles, in the Central Valley of California, arresting farmers, workers, just border patrol agents going to gas stations and just stopping anybody who looked Latino. And a federal judge had already ruled that that was unconstitutional. And then what happened is he essentially somehow got seconded over to Los Angeles and is running those operations even though he is not part of the San Diego sector and he's doing the exact same thing there. And he's now had two federal courts rule that these kind of roving patrols that he was ordering are unconstitutional.
- [20:43]
Dahlia Lithwick
We are going to take a short break now to hear from some of our great sponsors. This episode is brought to you by Americans United for Separation of Church and State. The future of religious freedom is at a crossroads. The same groups behind Project 2025 are working relentlessly to impose a Christian nationalist agenda on the laws and the lives of the American people. The wall between church and state is the last safeguard standing in their way. For over 75 years, Americans United has been a powerful but quiet force fighting to preserve church, state, separation, freedom without favor and equality without exception. For every single American, Americans United stands up for your right to believe and to live as you choose, so long as you don't harm others. You can take action and join Americans United today by donating any dollar amount and your support will be doubled. Join Americans United and help defend the fundamental freedoms that protect us all. Learn more and join the Fight at au.org slate.
- [21:57]
Aaron Reichland Melnick
This podcast is brought to.
- [21:58]
Dahlia Lithwick
You by Progressive Insurance. Do you ever think about switching insurance companies to see if you could save some cash?
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Aaron Reichland Melnick
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- [22:06]
Dahlia Lithwick
Just drop in some details about yourself and see if you're eligible to save money when you bundle your home and auto policies. The process only takes minutes and it could mean hundreds more in your pocket. Visit progressive.com after this episode to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states. This episode is brought to you by Americans United for Separation of Church and State. The future of religious freedom is at a crossroads. The same groups behind Project 2025 are working relentlessly to impose a Christian nationalist agenda on the laws and the lives of the American people. The wall between church and state is the last safeguard standing in their way. For over 75 for the last five years, Americans United has been a powerful but quiet force fighting to preserve church, state, separation, freedom without favor and equality without exception. For every single American, Americans United stands up for your right to believe and to live as you choose, so long as you don't harm others. You can take Action and join Americans United today by donating any dollar amount and your support will be doubled. Join. Join Americans United and help defend the fundamental freedoms that protect us all. Learn more and join the fight@au.org slate and now let's return to my conversation with Aaron Raichlen Melnick of the American Immigration Council. I want to ask you a little bit about the effect that these raids are having around the country. I mean, I'm hearing from friends in New York, from friends in dc, from friends in la, that it's massively suppressing participation, you know, in public transit, in the choice to send your kid to school, in whether you show up at work and how you show up at work. And I, I, you know, if in fact, so much of the object here is chilling, terrorizing, being afraid that your kids are going to be taken away from you. What, what is the data showing about the effect, the chilling effect on participating in life, particularly in these big cities where one becomes almost accustomed to the idea that this is how we live now?
- [24:37]
Aaron Reichland Melnick
Yeah, I think these operations really do have two primary goals. The first primary goal is deportations. You know, I want to emphasize there's a lot of conspiracy theories going around about, you know, secret plans behind this. But fundamentally the goal of mass deportation operations is mass deportations. They want to arrest, detain and deport as many people as they can. But the secondary goal is to spread fear through these undocumented communities and immigrant communities in general so that people self deported, they understand and they know that this is having an impact on immigrant communities. There are measurable drops in school enrollments in people going to work in public transit. You've had really extraordinary moment where the Catholic Diocese of Los Angeles has said that people can skip Mass and do Mass virtually from home. This is the kind of shifts internally in these communities. It's really showing that people are just sitting at home in fear. That said, it is really important to emphasize because I do think some of that fear, overblown is the wrong word, but some of that fear is maybe out of proportion to the scale of this. Because if you look at the map of where a lot of these arrests are going, you see, Los Angeles is a massive city and a lot of these operations have been concentrated in a few small areas. And Los Angeles county alone has at least 900,000 undocumented immigrants. In Los Angeles county through the entirety of June, according to official statistics released by DHS, only about 2,800 undocumented immigrants were arrested and detained in these operations. So that's less than half of 1% of the undocumented population has been arrested in a month. That is not to downplay at all the impact for those people. You've seen families ripped apart, you know, long time residents of the city who've been here for 20, 30 years who have U.S. citizen children. One guy, a landscaper, had three sons in the U.S. marines, and he got picked up in a video that went viral. But at the end of the day, that is 2,800 people. And at that rate, it would still take them decades to arrest every undocumented immigrant in Los Angeles. That is why, in many ways, as I said, there's two primary missions, the mass deportation and getting people to self deport. That self deportation push is what the administration is leaning into. And you had Stephen Miller talking to News Nation claiming that a million people have self deported already, which is a completely made up figure. But the goal there is to send the message that everybody's doing it, they're all leaving. If you leave now, then you won't have to worry about this happening to you. You won't have to worry about being thrown on the ground by Border Patrol, shoved into a detention center and treated poorly if you just go home now. And so in some ways, the more attention that is paid to these, the more people see these videos of outrages, the more DHS is in some ways gladdened by that because it means that people are getting the message that, you know, no one is safe.
- [27:46]
Dahlia Lithwick
It's interesting because this so perfectly mirrors the conversation we had after Dobbs when you're simultaneously saying, you know, life as we know it has changed. And also, like, please don't overreact and think that you can't possibly terminate a pregnancy anywhere in America. And I feel like the same exact public reaction to that duality is a little bit of this numbing effect, right, where you just can't figure out what you're meant to be afraid of and you can't quite figure out what's going on on the ground. And I'm really struck by the difference in intensity around family separation policy and the sort of unified horror that we saw and the just slight normalization and the slight, you know, maybe I don't know what to be horrified about that we are seeing now. And one of the reasons it's so very chilling is because now there's just so much money flooding this conversation. And you've been warning about this everywhere. But, you know, Trump's budget has plowed, correct me if I'm wrong, $170 billion for immigration enforcement and border security, $75 billion in extra funding for ICE. This makes it, I think you've called it, the largest law enforcement agency in the history of the federal government. And I know that you absolutely told us in January and warned us in January, the only way that Donald Trump and Stephen Miller would be able to effectuate their immigration plans would be by erecting a massive police state. And that feel, A, it's happening very quickly, B, we might be underreacting. And I, I guess I'm just really curious if, in the most concrete sense, Aaron, you can make real for me what that kind of money buys in terms of immigration enforcement and detention. What does that kind of money even look like in creating a police state?
- [29:44]
Aaron Reichland Melnick
You're right. It's $170.7 billion for immigration enforcement and border security. And that breaks down to about $46.6 billion for border wall, which is three times what Trump spent in his first term. So could be used for somewhere between 600 to 800 miles of border wall or more, potentially enough to finish sealing off all of Texas. And we're also looking at $75 billion for ICE internal operations and $3.5 billion for states supporting ICE's internal operations, plus a 10 billion do HS slush fund that they can kind of use for anything arguably related to border security, which could also include internal enforcement. And that $75 billion for ICE includes $45 billion for detention and $30 billion for enforcement and removal operations. On the detention front, we calculate that this could bring ICE's average daily population in detention up to over 116,000 people a day. That doesn't mean the same 116,000 people, because people cycle in and out. So that could mean that they're able to detain tens of thousands of people a month, more than they were able to detain ever before. And that's getting close to the size of the Federal Bureau of Prisons. When you average the money out, which, by the way, has to be spent through the end of fiscal year 2029, so through September 30, 2029, you're looking at about an average $10.6 billion increase in ICE's detention budget, which will bring ICE's detention budget to about 68% higher on average, than the entire Federal Bureau of Prisons budget right now. So where is that money going? Well, some of it's going to go towards contracting with pre existing prisons and jails that already have bed space available for them. And that could get them to about, according to ICE 75,000 beds total. So anything above that is going to have to be in new facilities. And that means facilities like the Everglades detention camp that Governor DeSantis put up. Those are known as soft sided detention facilities in official DHS parlance. And these soft sided detention facilities can be thrown up very quickly, as we saw in Florida, where they built the entire thing in about eight days. Because essentially you really just need the tents. You need some barriers, some chain link fence, you need H vac machines to get them air conditioned on the interior. You need portable toilets, you need cots and some really basic stuff that a lot of companies have already sitting around because these are not reinventing the wheel. This is really standard stuff that can be thrown up pretty quickly. It's also extraordinarily expensive to operate these facilities. The Florida facility at 3,000 beds is alleged to cost about 450 million doll dollars a year. So despite getting all of that money, we're not looking at 200,000 or 300,000 beds, probably. But nevertheless, it could easily, depending on how they spend, get them to 116,000 anywhere up to maybe even 130 or 140,000 beds, depending on when and how they spend the money. And that gives them the ability to just shove far more people into detention. And why that matters is not only because of the human impact of that, but because detention is the single largest fact in determining whether somebody wins their case and is able to stay in the United States. And that's because people in detention are far from their family, they're far from their lawyers, and they're far from hope. And many people just give up. Rather than deciding to stay in jail for months or potentially years as they fight to remain in the country, many people decide to say, well, I can just go back to my home country and get out of detention. Of course, it's actually not that simple. Even if you say I give up, it doesn't mean you're going to be put on a deportation flight tomorrow. Sometimes people are held in detention for months even after they give up because of how deportation operations work. But that will also be addressed somewhat by that $30 billion in funding, because that will include money to buy new planes. As it stands, ICE only has about 13 to 14 charter aircraft available to them at any given time. Now, the military has supported and they have a few more planes that they're getting from the military, but they will be able to contract or purchase potentially dozens of new planes, which means they can go from physically carrying out, you know, maybe 800 or 900 deportations a day by plane to potentially 2,000, 3,000 people a day by plane, which will be a major, major increase.
- [34:36]
Dahlia Lithwick
I want to turn to the deportations now in part because the case that originated in Judge Boasberg's courtroom in D.C. is kind of a good place to start in that it generated a lot of attention. I think it amply displayed that the administration had no intention of following court orders from district court judges. Can you just sort of remind us the status of that litigation? Because it now sprawls over several conversations in several topic areas and indeed over several courts.
- [35:11]
Aaron Reichland Melnick
Right now the case about the deportations to is about what to do with those people who are already there in El Salvador being imprisoned without trial, held incommunicado, and with no access to the outside world, essentially not even any proof of lies life. Because the Supreme Court, the one thing that they have done positive in the area of immigration so far is tell the administration they cannot send people to Sukkot under the Alien Enemies act without due process. That means that the government has by and large, finally stopped in its efforts to do due process, free deportations to El Salvador under these agreements. So right now, what's being argued in court in Washington D.C. in the JGG case in front of Judge Boasberg is, is what to do about those people who were sent there without any due process. And Judge Boasberg has ordered the government to essentially give those people an opportunity to file their own habeas lawsuits. And the government has resisted strongly and said, we have absolutely no control over this. Meanwhile, El Salvador is telling the United nations, we have no control over these people. It's entirely up to the United States. And so all of that is being litigated right now. Meanwhile, at the same time, the contempt proceedings about the government violating his initial court order have been administratively stayed at the D.C. circuit for more than three months. And so that will restart at some random point in the future whenever the court gets around to making some kind of decision on it. But what has happened in general with the Alien Enemies act has been a very clear consensus nationally that the government cannot simply send people to El Salvador with no due process. So that is the one very clear bright light in the field of litigation right now is that pretty much everyone agrees, Republican and democratically appointed judges alike, there must be notice. That notice must be meaningful. You've seen some disagreements on what meaningful means, everything from three weeks to a month about how long the notice must be. But everyone agrees there has to be Notice as an opportunity to challenge. There is now some agreement about what the opportunity to challenge looks like. And you've had multiple courts say that opportunity to challenge can go straight to the president's proclamation and say, this is absurd. We're not at war with Venezuela or Trend Aragua. Therefore, the entire proclamation is invalid to some judges saying you can challenge whether you yourself are a member of Trend and whether the government has proved that, but you cannot challenge the underlying proclamation. And and in the case that the Supreme Court most recently weighed in on in May, that case is currently pending at the Fifth Circuit Court of Appeals. And the government is trying to ask other circuit courts which are addressing this question, including the 3rd Circuit, to hold their cases in abeyance and only have the Fifth Circuit weigh in on this, which I think the Third Circuit is probably going to laugh at and just ignore. So that's basically where we are with those cases. And I think it's very important to look at those cases in the broader context of these operations and what we talked about. One of the primary purposes which is sowing fear, because as horrific as what the government did in those cases to those people and the fact that there are still hundreds of people imprisoned without trial who are clearly innocent in El Salvador in total, those involve less than 300 people who were sent there and they are not the large numbers of people. The Alien Enemies act was never going to be a large scale program used to remove people. It was always going to be about outrage and about sending a message. And the message was sent. I think the admin under anticipated the amount of pushback they would get on it. But the message was sent now. And in fact, I think a lot of people think that many more people are being sent to be imprisoned in El Salvador or third countries than is actually happening. No, the overwhelming majority of deportations that are occurring are standard deportations. People are being sent to their home countries and dropped off. And that's the habit. The US Government washes their hands of the person. The person is then essentially free. That is not to say that some people are not then detained by their home governments or the governments of their country of nationality. In countries like Bhutan, for example, many ethnic minority Bhutanese individuals are or Nepali individuals are being deported there and then are immediately being detained by a sort of autocratic government. That has been happening. However, things like that, deportees being detained upon arrival is not new to the Trump administration. But most people who are being deported are free. They are not imprisoned anywhere in a third country. Most people who are Being deported are just being deported. And that is the harm.
- [40:01]
Dahlia Lithwick
We will be back in a moment with Aaron Raichlen Melnick of the American Immigration Council.
- [40:10]
Aaron Reichland Melnick
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- [40:40]
Dahlia Lithwick
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- [40:53]
Aaron Reichland Melnick
And basically feel like a financial genius.
- [40:56]
Dahlia Lithwick
And guess what? It's totally free. So go on, download the Experian app. Trust me, having a BFF like this is a total game changer. Aaron, can you also just catch us up on one other case that involves one of the folks sent to and that again, garnered massive attention and then just became unbelievably thickety and confusing, which is the Kilmar Abrego Garcia case. Only because we were told he was never, ever, ever coming back. And then he came back, and now there's this, I think, fairly thin criminal case about him. But even internally, on its own terms, the Justice Department has been quite incoherent in terms of what they are saying about litigation.
- [41:48]
Aaron Reichland Melnick
Yeah, Mr. Abrego Garcia was sent to SICOT by accident. The government acknowledges they shouldn't have sent him there. It was an administrative error. And initially, as reporting has now showed, emails that have been released by Erez Reuveni, a DOJ whistleblower who worked on the case in the early days and was eventually fired for telling the truth about what had happened to Mr. Abrego Garcia and what had happened inside the government. Government have shown that the government initially thought, yeah, let's just bring the guy back. This happens all the time with wrongful deportations. Crucially, this is something that has happened under every administration. Sometimes the government makes a mistake, and sometimes there are good faith mistakes. Sometimes you have court orders that come in half an hour before the plane is set to take off, and it just never gets to the plane in time. And when that happens, normally the government just says, okay, well, we'll just bring the guy back. You know, that's a standard practice that happens in these situations. And that's how his case initially was going to play out before it blew up and before the White House came down on him in particular, because they wanted to make an example of him. Because the whole point they can never, ever, ever admit to having ever made a mistake, which is the way that they have acted in this case from the very beginning. You know, deny, deny, deflect. So eventually a court order was put in effect saying, you have to bring this guy back. The Supreme Court upheld that court order. There was months of fighting about it. And so what eventually the government decided to was justify a reason to bring him back. That did not have them admitting to the court that they were doing it under the court order. With all of the scrutiny on this guy. They said, actually, turns out he's a terrible ms.13 leader, criminal crook. You know, initially they wanted to call him an MS.13 leader and then they'd have no evidence of it. They just sort of tried to manufacture that. That didn't work. And so now they're accusing him of being a human smuggler who used his children to distract from, from his human smuggling events. And maybe he even murdered somebody in El Salvador as a teenager. That's an allegation they made in court. Now, to be clear, there are some facts that they have here that are not good for him. And I think it is worth acknowledging, of course, the biggest amount of evidence they have relates to a stop that occurred in 2022 in Tennessee when he was pulled over driving a van. That van was filled with other migrants, by all reports, who didn't want to give their names to the police officer at the time. But eventually the cop let him go. He went on with his day. That van was registered to somebody else in Maryland who is currently serving prison time for smuggling. And so he is clearly linked to somebody who had ties to smuggling operations. He also told the police officer that, that he was driving from St. Louis, whereas cell phone records show he had never been to St. Louis. So there is some evidence that suggests that he was at minimum driving people from the border to Maryland. That does not mean that those people had crossed illegally. They may have been people who had been released at the border by the border Patrol. They may have been people who had entered at ports of entry. We just fundamentally don't know. But the government has gotten the those people who are in prison already to turn state's evidence against him and make a number of seemingly outlandish claims about his criminality. Claims that so far A federal magistrate judge has not found particularly believable because these people actually got very serious benefits for doing this. So in essence, you know, is there some evidence of some criminality? Yes. Is there evidence of this grand conspiracy that this guy was allegedly, you know, a serious member of and a killer? No, they actually haven't provided any evidence in that. And the only people arguing that are people who are being rewarded by the federal government for turning state's evidence on him.
- [45:50]
Dahlia Lithwick
In some sense. It is actually more than anything else self evident from all this that if you have the entire machinery of the Justice Department behind you and the ability to get testimony and to reward testimony, you can find in fact, something on almost anyone. I wonder if we can talk just briefly, Aaron, about these deportations to third countries. Wednesday of this week brought the news that the administration is restarting these flights to third countries with the flight of deportees to Eswatini in Southern Africa. What's the both legal and sort of, in your view, sort of political status of these third country deportations?
- [46:38]
Aaron Reichland Melnick
The legal basis is a provision in the Immigration and Nationality act that says where someone can be deported to, and there is a long list of how you determine to what country a person is going to go. And eventually you get to a catch all provision at the end that says essentially if it's impractical or inadvisable or otherwise impossible to send someone to their home country or a country of their nationality or a country that they previously resided in, you can send them to any country that will accept that person. And historically this has been very rare because most countries do not want to accept people that are not their own nationals and they have no obligations to do anything with. So this has been used in the past in individualized circumstances, usually some diplomatic cases about specific individuals who the US Government can't deport for one reason or another. And the issue of people who can't be deported to their home countries is not a new one. For 50 years, Cuba did not accept its own nationals. For a decade, Venezuela did not accept its own nationals. Laos, Vietnam, Cambodia. Many Southeast Asian countries often resisted, and sometimes they resisted because of reasons to do with geopolitics. So in many cases, the Southeast Asians who they do not want to take back were people who were actually born in refugee camps, their parents having fled during the 60s and 70s following the Vietnam War, following the killing fields in Cambodia. These are people who weren't even born in those countries. And so they are technically nationals. But in some cases those countries have argued they're really not. We don't want these people. They've never even been born here. They have no connection to here. Why should we take someone with a murder conviction in the United States when that person wasn't even born in this country? We have no connection to them whatsoever. And so historically, those people, once they were ordered deported, if they couldn't be sent to their home country, were after some time released. And these are people oftentimes, you know, for Cubans, it could be for any immigration violation, but for many of these other nationals, it is usually for some form of criminal history. They were ordered deported because of that, and they couldn't be deported just because of diplomatic issues or geopolitics. Now what the government is saying is we just want to kick these people out. We'll find some random small country in Africa that we can convince to do it, and we'll have them take those people. And they are making no effort whatsoever to ensure humane treatment on the other side. And that is, I think, the key difference here. These third country removals in the past were again, usually heavily negotiated and involved assurances on both sides about fair treatment and the provision of some kind of immigration status so that those people could then reside legally in that third country. That is not happening here. These people are being essentially chain refouled, chain deported. And that means that we've seen in South Sudan when the eight men were sent there after the Supreme Court approved it with no explanation whatsoever. Those men are currently being imprisoned in South Sudan with the government saying we will eventually deport them. The same thing in Eswatini, where five men from Laos, Vietnam, from Yemen, Jamaica and from Cuba, one each from those countries are being sent there. And the government of Eswatin says we are going to just deport them to their home countries. Now Jamaica accepts deportations. So the only reason that I can think of as to why a Jamaican man couldn't be deported to Jamaica is that he won some form of humanitarian protection from persecution or torture in Jamaica. That means that they couldn't legally deport him to Jamaica. And so now what's going to happen is he's going to be deported to Eswatini, then Eswatini is going to deport him to Jamaica, which is known in international law as chain refoulment and does violate international norms. But the Supreme Court has essentially greenlit this practice, despite the government having previously argued that they would not undertake this kind of procedure, you know, without giving people due process protections. The Supreme Court just, in an unexplained order Simply said, go ahead, you guys get to do this.
- [50:42]
Dahlia Lithwick
Erin, I want to end on the Supreme Court because, paradoxically, for a show that's about the Supreme Court, we haven't talked about it nearly enough. But you have mentioned there was this one moment where the court appeared to be, at minimum, saying, you know, habeas is habeas, and we mean it. Since then, it's been, as you note, a major retreat in a lot of ways from a willingness to protect even basic, basic norms and laws. And I think we have to end on birthright citizenship, which is where the term ended, not only because I want to hear your thoughts on that decision and the ways that it disempowers the district court judges around the country who have been doing exactly the work you've been describing this entire show of sort of standing up and saying, no, this is the law, we mean it, and we're gonna try to make you keep to it. The court has clearly abdicated that. But, you know, our friend Sherrilyn Ifill this week sounded the alarm that she no longer is completely convinced that the court would uphold birthright citizenship. When it comes around that the kind of conventional wisdom that, oh, when this 14th amendment is taken on the merits, the court will, of course say it's right there. I think her sense is that the Supreme Court is just not at all with the program here in terms of what we thought it was willing to protect. And I'd love to hear your sort of closing thoughts on if and how you think the court is going to meet the moment when it comes to not just birthright citizenship, but immigration.
- [52:18]
Aaron Reichland Melnick
General, as you said, you know, we started the Supreme Court term under Trump actually with positive news on immigration. The first three shadow docket cases that the Supreme Court issued on immigration were all losses for the Trump administration. You had JGG9.0 supporting due process. You had the Abrego Garcia case 9.0 saying, bring him back. You had the second Alien Enemies Act 72 saying, people do get meaningful due process process. And then you had a string of losses after that. You had temporary protected status. 300,000 people lost their status overnight because of an unexplained Supreme Court order. You had humanitarian parole. Three to 400,000 people lost parole overnight thanks to an unexplained order. And then you had the DVD case where the Supreme Court greenlit the government sending people to these far flung, random nations with very little due process and in violation of court orders. That said, I still think that the Supreme Court is going to uphold birthright citizenship and I don't think it's going to be a 54 decision. I think it's going to be minimum 7 2. It is just so clear and I think it would be just a bridge so far. But if they were to somehow change their mind on this and say, you know what, we're going to overturn 150 years of precedent, I think it would be be the single biggest blaring red alarm that everything has changed. Nothing can be trusted. I just don't think we're there yet. And I think this is if the law holds at all, it must hold. In this circumstance. There is simply no good reasonable argument to interpret the Constitution to eliminate birthright citizenship, something which has been the law of the land in the United States and the colonies and England before that, dating back to 1600s.
- [54:08]
Dahlia Lithwick
Aaron Reichland Melnick is a senior fellow and former policy director at the American Immigration Council, a pro immigrant nonprofit aiming to defend immigrants through litigation, advocacy and more. His work there focuses on border enforcement and immigration court issues, as well as the intersection of immigration law and policy. Aaron, I learn more from you in an hour than I learn from from almost anybody over the course of years. Thank you so much for your time with us today and we will keep in touch as this thing continues to roller coaster its way through our lives. We really appreciate you. Thanks.
- [54:48]
Aaron Reichland Melnick
Thank you so much for having me.
- [54:56]
Dahlia Lithwick
And that is a wrap. Thank you so much for listening. Thank you for your support, support for our work. And thank you so much for your letters and your questions and your feedback. You can always keep in touch@amicuslate.com we love your letters or you can find us@facebook.com amicus podcast. Coming up on today's episode of Amicus plus and available exclusively for our Slate plus members, I'm going to retire to the Plescetier Bar with Mark Joseph Stern to break down the multifaceted horrors of the court's shadow docket decision, effectively greenlighting the shuttering of the Department of Education. We're going to be talking about the Emil Bovet nomination and the Will He Won't he Constitutional apprentice cliffhanger about Trump's possible firing of Jerome Powell. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcast, Podcasts and Spotify, or visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus Senior producer. Our producer is Patrick Fort. Hilary Fry is Slate's editor in chief. Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts, and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Until then, take good care.
- [56:50]
Aaron Reichland Melnick
Hi, I'm Josh Levine. My podcast, the Queen tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name. The great lesson of this for me is that people will come to their own conclusions based on what their prejudices are. Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.