← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Trump’s Unconstitutional Rampage Against Immigration
01:05:51
What’s a red flag, what’s a false alarm and what’s already a five alarm fire.
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- [00:00]
Dahlia Lithwick
I can say to my new Samsung Galaxy S25 Ultra, hey, find a keto friendly restaurant nearby and text it to Beth and Steve. And it does without me lifting a finger so I can get in more squats anywhere I can.
- [00:12]
Aaron Reichland Melnick
1, 2, 3 will that be cash or credit?
- [00:17]
Dahlia Lithwick
Credit.
- [00:17]
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Aaron Reichland Melnick
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- [00:27]
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- [00:28]
Aaron Reichland Melnick
Results may vary based on input. Check responses for accuracy.
- [00:32]
Dahlia Lithwick
This podcast is brought to you by Progressive Insurance Fiscally responsible financial geniuses, Monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations. Hi, I'm Dahlia Lithwick and this is Amicus Slate's podcast about the Supreme Court and the courts and the law. To those of you who are finding your way to our humble show by way of Molly Jong Fast's ringing endorsement on Blue sky last week, welcome. Come on in, Take off your coat, stay a while. And to those of you joining us because you're deeply worried that democracy dies under the klieglight as much as it ever did in darkness, we see you too.
- [01:42]
Aaron Reichland Melnick
The imperial presidency is here and it's in action, and the question is how much will the courts push back on it? Because a lot of the institutional actors inside the government are, for the moment, being muzzled, pushed aside or fired.
- [01:56]
Dahlia Lithwick
This past week has been one of shock and awe and boundless ugliness in the form of a series of executive orders and the release of violent, convicted insurrectionists at Donald Trump's command. The new orders have fallen hardest on some of America's most vulnerable, and among that population are immigrants, migrants, asylum seekers and others who had done nothing more awful than believe the American promise and believe in the American dream. Among the 10 immigration related executive orders, all hatched in the underground dungeon of Stephen Miller and the guys at Project 2025 and unleash in the first hours of his presidency, Donald Trump raced to seal borders against lawful migrants and to crack down on undocumented immigrants already in the United States. He threatened to prosecute local officials for resisting his edicts and supercharged the militarization of immigration enforcement. This quickfire scattershot of orders and actions this week has been hard to keep track of, requiring Herculean efforts to sort the unlawful and the unconstitutional from the awful but unworkable and that which is all of the above. And coming soon to a church or a school or a hospital near you to help us in this herculean effort is Aaron Reichland Melnick. Aaron is senior fellow and former Policy director at the American Immigration Council, which is a pro immigrant nonprofit aiming to defend immigrants through litigation, advocacy, and more. And if you are one of our many new friends on Blue sky, you're going to want to give Aaron a follow because his posts are always unbelievably helpful and clarifying. And also, somehow he went viral on X this week for tweeting about compassion. So, yes, we are in the Upside down. Now. Before I say anything else, Aaron, welcome to Amicus. We've wanted to have you on for a long time and holy cow, this week feels like the week.
- [03:54]
Aaron Reichland Melnick
Thank you for having me. And yes, it is an exhausting week where a lot has happened, a lot has been put into place that may happen, and there's a lot that we still don't know what will happen with.
- [04:10]
Dahlia Lithwick
So I thought we could start with Bishop Marianne Edgar Budd at the National Cathedral Prayer Service and compassion and that tweet of yours, because it describes in some sense this disconnect between the attitudes of the vast majority of Americans towards immigration in terms of their own family members, their neighbors, their friends, their co worshipers, their co workers, and this incoming executive's threats and actions. I ask you to have mercy, Mr. President, on those in our communities whose children fear that their parents will be taken away and that you help those who are fleeing war zones and persecution in their own lands to find compassion and welcome here. Our God teaches us that we are to be merciful to the stranger, for we were all once strangers in this land. So I wonder if you could just tell us a little bit about what it was in that clip of the bishop just imploring Donald Trump to have some compassion. What was that a tripwire for?
- [05:16]
Aaron Reichland Melnick
So when that clip went viral, of course, Bishop Bud showed that mercy is still an important part of the American public discourse, and the idea of compassion still has a lot of strength. And Republican Representative Mike Collins stated that he believed the bishop should be deported for having the audacity to ask President Trump to show mercy. And my response was to sort of highlight how far we have fallen from the discourse that we used to have in this country around compassion, mercy, and justice. These are not terms of weak people. They are core to our foundations as a country. They have been written into our laws. They are, in fact, an immigration law. Immigration law contains multiple avenues for compassion where people may be allowed to stay in the United States even if they are undocumented. And that has always been the case. And so I think what touched a nerve is calling out this anti mercy, anti compassion behavior as against the founding principles of this country.
- [06:26]
Dahlia Lithwick
The other, I think, big disconnect that we are all just sitting in. And Mark Joseph Stern and I talked about this earlier in the week when the first executive orders started coming down. Is this gulf between the announced actions and the dictates of the Constitution or the many statutes that control how law is actually enforced. And, you know, earlier in the week, I said, look, a lot of executive orders are just kind of letters to Santa. They don't have any actual force. And we're going to talk about that in a second. But I think on this question of asylum, we already have CBS News reporting that border agents are being deployed right now to summarily deport migrants crossing into the country without allowing them to even ask for legal protection. At the same time, there's actually no longer any way to cross legally into the country because on Monday, right after Donald Trump was sworn in, the administration shut down the CBP1 app, which threw tens of thousands of migrants trying to navigate a lawful way to enter the country into limbo. So I think what I'm trying to ask is this question of how much force do these on the one hand, these executive orders are just wish lists. On the other hand, at least in this context of immigration and asylum, they're very much effective and they're leading to action on the ground.
- [07:48]
Aaron Reichland Melnick
Yeah, immigration is an area where the president does have a lot of authority, but immigration is ultimately set to Congress. The Constitution assigns the power of setting rules relating to naturalization to Congress and not to the president. And for the last couple hundred years, that has been interpreted as meaning that it is Congress that ultimately gets to decide who can enter the country and who cannot, and not the president. When the president does get that authority, it's usually because Congress has given the president that authority and not because it's an inherent aspect of of the presidential power. But Trump doesn't agree with that. And what he has already said is that he can, in his own view, simply suspend the entirety of the Immigration and Nationality act, the laws passed by Congress about how to treat people taken into custody at the border. And he has said that he can simply sweep those aside and order Border Patrol to turn people away, despite the fact that they do have rights in the law, despite the fact that they have rights under international agreements, that the United States is part, part of. And he says he can simply toss that all aside under his own power. So to some extent, these things have already gone into effect and there is more to come. There's a travel ban that can come. Restrictions on legal immigration are foreshadowed in the executive orders and will be coming in the future. And that's an area where he does have a lot of authority restricting legal immigration. But what he can't do and what the courts are likely going to intervene on is the idea that he can simply declare, I'm president, therefore I don't have to follow the law laws if people are crossing our southern border.
- [09:29]
Dahlia Lithwick
So I'm hearing you say that there's just this kind of, I am the president, I get to supersede everything, the Constitution, every statute, as you said, international law. And in a strange way, by behaving as though that is true, even though it will all be tested in the courts, there feels like there's a bit of a knock on effect where entities are starting to behave as though it's true, even if it's not yet. Yeah.
- [10:02]
Aaron Reichland Melnick
And we have already seen a number of people who know better simply acquiesce to this kind of attitude towards constitutional authority and presidential authority, of course, when it comes to things like his executive order to strip birthright citizenship for millions of non citizens in the country. The Department of Justice is defending this. They have already filed legal briefings in court arguing that the consensus for centuries that birthright citizenship exists in this country is not real and can simply be tossed aside with the stroke of a pen. So there are people going along with this. The imperial presidency is here and it's in action. And the question is how much will the courts push back on it? Because a lot of the institutional actors inside the government are for the moment being muzzled, pushed aside or fired.
- [10:51]
Dahlia Lithwick
Can we talk for a minute about the purported legal authority that underlies the President's claim that he's just gonna, on day one, effectively shut down the southern border? Because there's a kind of a weird mishmash of public health claims and national security anti terrorism claims and of course the good old foreign invasion claim. We knew that was coming. Can you just walk us through what the basis of this claim that there is a, you know, catastrophic emergency at the southern border that allows him to set aside existing statutes and constit constitutional protections.
- [11:29]
Aaron Reichland Melnick
Yeah. So President Trump invokes three specific legal authorities. Two of them are contained within immigration law. One of them is his claim that as president, he inherently can Shut the border whenever there is an invasion. Which is a pretty radical argument, considering. Again, when the Constitution speaks of invasion, everyone agrees, who has ever looked at this issue on a legal basis, that it refers to a military invasion, an invasion by a foreign government. And even if you think that there is an argument that colloquially we are being invaded by migrants, I would disagree with that. But I can understand the argument from a colloquial standpoint very clear, that there is not a military invasion at the border. In fact, the vast majority of migrants who have crossed the border in the last four years have voluntarily turned themselves into law enforcement to the Border Patrol and are asking for protection. I cannot think of a military invasion in the history of the entire planet that began with people voluntarily turning themselves into the law enforcement of the country to which they were invading. Nevertheless, he makes a claim first, that under the Constitution, in order to support the constitutional provision that says the executive shall protect the states against an invasion, that he can suspend the physical entry of individuals coming into the United States. Now, what that means as a practical basis remains to be seen. Separately, he invokes two provisions of the Immigration and Nationality act which authorize the President to suspend the entry of individuals. One is the travel ban Authority, Section 212F of the Immigration and Nationality Act. This is the authority that the Supreme Court said gave him extraordinary deference to suspend legal admissions into the country. And the other is a similar provision that operates for restricting visas. The travel ban authority, however, is already in effect at the border. President Biden invoked this authority in the past. President Trump invoked this authority at the border in his first term, but it didn't do anything on its own. The widespread agreement of the Trump administration, first term, and the Biden administration was that this authority, when invoked at the border, had to operate along with another law that let them use that authority to restrict asylum. And the way that worked was that Biden and Trump pushed out regulation, saying, if you cross the border in violation of a presidential suspension of entry, we are deciding in our discretion not to grant you asylum. And they had a law on the books that says the attorney General can set restrictions on asylum that they deem necessary. So there was a pretty clear legal fig leaf now, and there are good disagreements about how that authority was exercised and whether that asylum restriction was lawful. But nevertheless, they pointed to a specific law and said, this law authorizes us to suspend asylum. These new executive orders do not do that. They simply assert, I have put this suspension in effect under section 212F, therefore, I am suspending not only asylum, but I am declaring that people cannot apply for any other benefit in immigration law that might permit someone to stay in the country. So that could mean a visa, that could mean applying for a green card through a spouse. That could mean applying for protection under the Convention Against Torture. There are so many other things in the law that are not asylum that a migrant might be eligible for. And Trump is simply saying, I can come in and with a stroke of a pen say every one of these protections that Congress has written into law are no longer available for people. And that is sweeping. He did not make this claim his first time.
- [15:23]
Dahlia Lithwick
I just want to flag for our listeners that this invasion claim that Aaron is talking about and the anti terrorism claims, these open the door to using the Alien enemies Act of 1798. We actually did a show about this back in October, and we're going to post a link in the show notes, because if you haven't listened to that yet, it is getting more chillingly relevant by the day. But before we get too deep into the statutes and the rationales, Aaron, would you give us a sense of the immigration landscape as Trump embarks on his second term in office as compared with his first?
- [15:58]
Aaron Reichland Melnick
Well, border crossings are, well, at least in December were still higher than what President Trump inherited from Obama in 2017. And so crossings are down. They are significantly down from December 2023, when the Border Patrol recorded over 250,000 apprehensions that month. In fact, they have now dropped to under 50,000amonth. So, you know, we are literally seeing one fifth the number of border crossings as there were a year ago, and they have continued to drop over the last couple of months. And this is due to a couple of things. In late December 2023, the Government of Mexico agreed to cooperate with the United States to massively increase its own internal enforcement, subjecting migrants to something known as the Merry Go Round, where migrants are stuck in southern Mexico. And if they try to travel north, they get arrested, sent back to southern Mexico, and they try to do it again, they get arrested again and sent back to southern Mexico. And if they do it again, they get arrested again and sent back to southern Mexico. You see why it's called the Merry Go Round. That, combined with the Biden administration's changes to the procedure which asylum seekers are subjected to at the border, has led to many more people being denied the rights to seek protection. And so President Trump took office right now with border encounters lower than they were when he left office in 2020, lower than they were when he declared a national emergency in January 2019. But yes, it's true, higher than they were when he took office in 2017, and with still hundreds of thousands of migrants in Mexico waiting for an opportunity to enter the country legally. And so of course it is not an emergency right now. Numbers are significantly down, even though, yes, some people are still trying to cross the border, as people have been trying to cross the border for the last century.
- [17:51]
Dahlia Lithwick
More in a moment with Aaron Raichlen Melnick, Senior Fellow at the American Immigration Council. This show is sponsored by BetterHelp. Is there a part of your personal story you've been wanting to revise in 2025? Every January brings 360 blank pages just waiting to be filled. Therapy can help you write new chapters and create the meaningful story you deserve to live. If you're thinking of starting therapy, give Better Help a try. It's fully online, making therapy more accessible, affordable and convenient. Just fill out a brief questionnaire to get matched with one of BetterHelp's network of 30,000 credentialed therapists. Their therapists have a wide range of specialties, but if you feel like your match therapist isn't a good fit for you, you can easily switch therapists anytime at no extra cost. Write your story with better help. Visit betterhelp.com amicustoday to get 10% off your first month. That's BetterHelp. H-E-L-P.com Amicus.
- [19:01]
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- [20:05]
Dahlia Lithwick
Erin I think the other piece of the border story that we have to touch on is this militarization of immigration. President Trump signed an order that seems to have given the military a pretty explicit role in immigration enforcement, directed the Defense Department to come up with a plan to seal the borders and maintain sovereignty, territorial integrity and security of the United States by repelling forms of invasion. End quote. I'm simply a country lawyer, but this feels like a violation of posse commitatus, things that I learned about in law school about conscripting the military into doing domestic policing. Am I wrong that this is a huge, dramatic move that kind of went unnoticed?
- [20:56]
Aaron Reichland Melnick
I don't think you're wrong to be concerned about it. But right now, in the first few days after these executive orders have been signed, it is not clear yet what the military is going to be doing at the border. I think it's crucial for people to know that the military has been deployed to the US Mexico border for a decade now, deployed under Obama. It had previously been deployed under the Bush administration and I think the Clinton administration in the past. And so there has been a steady deployment of the military at the border for quite some time now. But in the past, everyone has agreed that the military's main role at the border is logistical support to the Border Patrol. And so in the past, you'd had active duty troops and National Guardsmen doing things like manning surveillance cameras or mucking out horse stables or doing paperwork, maybe driving trucks for the Border Patrol to support those efforts. And at this moment, it is not clear whether the new deployment at the border will substantively change that. We have seen, however, a commitment to potentially using military resources in ways we haven't seen before. Military cargo planes being transformed into deportation flights, potentially using military assets to detain migrants. Again, details unclear at this moment, but President Trump does assert the military has a much larger role than has previously been asserted. And how this interacts with the Posse Comitatus act is going to be worked out presumably over the next few weeks or months. What are the rules of engagement? Are they going to be armed? There's been some suggestion that for the first time ever, military troops at the border will be armed, but that has not yet been officially confirmed. So we are waiting to see exactly what this looks like. Is this more of the same, but with slightly more military resources sent over to ICE and Border Patrol, or is this actually going to be something a little bit more like what Governor Abbott has been doing in Texas with the Texas National Guard? In Texas, National Guard troopers are stationed at the border. They are armed, and they have been seen physically shoving back migrants into the river. Is that what U.S. army troops are going to be doing? We don't know, but it's a very real possibility.
- [23:17]
Dahlia Lithwick
I feel like I'm going to have A subpart B to every question, which is you need to let us know at what point this is a red flag. And it feels like what you're saying is it's just too soon. But certainly if you see armed military at the border, we're in a brave new world.
- [23:35]
Aaron Reichland Melnick
Yeah, I think right now the red flags are in the process of going up the flagpole, but we don't yet know exactly what the flag looks like because it's not blowing in the wind yet. You know, there's a lot of red on the flag and it looks pretty bad as it's going up. But it remains to be seen whether it's just a normal flag with a little bit of a red tinge or whether it's a full blown red flag. Things are for alarm fire right now in the initial days after these executive orders are being signed, before there's been any litigation, before there's been any court orders, before there's been any public guidance on the military deployment, we can raise the alarm about the possibilities, but also caution people that details are still yet to come and we are waiting to see exactly what happens.
- [24:23]
Dahlia Lithwick
That's an incredibly useful set point from which I think listeners want to start to sit. I want to take us away from the southern border to kind of everywhere else, because one of Donald Trump's promises is to launch the largest domestic deportation operation in American history. And this includes so many things, including so called expedited removal, coupled with the expansion of ice's ability to reach out into sensitive areas like schools and churches and hospitals. This is all designed to make life very hard for anybody who's living as an undocumented immigrant in the United States, and also families that have mixed statuses. But can you just give our listeners a little bit of a sense of what that looks like when ICE is actually given permission to raid schools or hospitals?
- [25:22]
Aaron Reichland Melnick
ICE has already been given permission to raid schools and hospitals, though I think the term raid here is a little bit unclear. So there are really two types of ICE enforcement operations that have existed right now. There are targeted operations in the community where ICE officers are given lists of names and go out into the community to arrest specific people. This is where ICE officers act a little bit more like detectives. A detective in a police department will probably have a name of a suspect. They'll go after that suspect and they'll take that suspect into custody. Got a warrant? And this is a similar issue. ICE will have an administrative warrant to take someone into custody. They'll go out into the community and Pick up that person. Similarly, ICE arrests most people that it takes into custody in law enforcement custody already in state law enforcement or local law enforcement custody, people who've been arrested for some criminal offense and are being held at a jail or a prison. And that's actually the majority of what ICE does, go to take someone into custody, a very specific person into custody. Then there are worksite raids where ICE identifies a work site and it doesn't know who they are trying to arrest. They know there are undocumented immigrants there, but they don't really know who they are, and they raid the entire building and arrest everybody there and demand papers from everybody there. That latter kind of raid is unusual. And because it's very resource intensive, you're talking dozens, if not hundreds of ICE officers being involved because they're arresting hundreds of people. These operations take months to plan, cost potentially millions of dollars to carry out. They're big deals. Whereas every single day currently, ICE is going out into the community to arrest some people. And so the big change, at least when it comes to hospitals and schools, is that under the Biden administration, the Obama administration before that, it was ICE policy not to do those targeted arrests at hospitals and schools. What the Trump administration has said is they are just lifting those and basically telling officers, use your best judgment. So that is less a full throated endorsem of raids on hospitals and schools as it is telling ICE officers. We actually don't think that there should be any restrictions here other than your own best judgment. If you think that your best place to pick somebody up is when they're picking up their child from school, and that's the best place you can do that, go ahead. We're not going to get in your way. And so I think that is distinct from saying there will be raids at hospitals. I don't think we're going to see ICE officers running into a school and grabbing all the kids there that are undocumented. That's not something I think people should be worried about. Similarly, at the moment, I don't think people should be worried about ICE going door to door or setting up checkpoints and demanding all papers. All indications in the initial days of the Trump administration are that they do intend to keep most enforcement operations in the community on a targeted basis, even though they will now send Fox News cameras and others to go along with them for PR purposes.
- [28:22]
Dahlia Lithwick
So I think we have to now turn to the thing that really is freaking people out. Not that everything we've talked about isn't, but you mentioned it and I mentioned it, and that is birthright citizenship, which is protected in the Constitution. But as you said, President Trump has somehow authorized himself to clarify the 14th Amendment in ways that rewrite it altogether. Among other things, I guess the plan is that the government is no longer going to treat all US Born children going forward as citizens, signaling the intention to, I guess, ignore the guarantees of the 14th Amendment. So this is seems like a huge, huge, big deal. It's not just about immigration anymore. It targets a whole lot of legal immigrants. Again, it's unconstitutional. You know, the way we've been inclined to think about this is. But it's just in the 14th Amendment. Is that gonna be enough?
- [29:24]
Aaron Reichland Melnick
I hope so, and I think it probably will. This is not a serious legal argument. There are a few fringe scholars who have tried to make some arguments that the birthright citizenship doesn't apply to undocumented immigrants. There are a few fringe scholars who say birthright citizenship doesn't apply in the ways the Trump executive order says, which is not just for undocumented immigrants, but also to anyone who doesn't have a green card. Under the executive order, children born here to people on H1B visas, student visas, other temporary nonimmigrant visas that often allow people to live and work in the United States for years, to be here, living here, working here legally, that under the executive order, none of them would transfer birthright citizenship to any child born here. And while there are slightly more scholars who make an argument that the 14th Amendment would not cover children of undocumented immigrants, the number of people who make the argument that it would not cover children of people here on H1BS and others is even smaller. This is primarily an idea pushed by the disgraced and disbarred John Eastman. He has been making this argument for decades, and he had very little success in the court pushing his January 6 Big Lie theories about the 2020 election. He lost nearly, I think, every single court case he brought on these. So, given that, given his track record there, and given that the Trump administration went even further than they could by targeting not just children of undocumented immigrants, but also children of people here legally on nonimmigrant visas, I am still pretty confident that the courts will knock this down. This seems like of all of the things that he has done in day one, and we didn't even get into the vast majority of changes to interior enforcement that he calls for, of all of the things that he did on day one, this is the most obviously illegal and would provide a very easy case, I think, for the Supreme Court to say, look, this is a bridge too far even for us.
- [31:30]
Dahlia Lithwick
And so at the risk of asking you to tell me what's gonna happen, we've got already a bunch of cases filed. We're already seeing movement in the courts. Is this a thing that gets, in your view, wrapped up easily and tidily in the coming weeks, or is this a thing that is going to just. Just throw everything into chaos and be two years in its resolution?
- [31:54]
Aaron Reichland Melnick
So the executive order is not set to go into effect until February 19, 30 days after it was signed. And given that we will be getting court orders before then, judges are going to want to move quickly on this because of how much chaos this would throw everybody into. Because, of course, right now and for the entirety of US History, all you needed to show your citizenship was a birth certificate. If you are not a naturalized immigrant, the only paperwork you need to prove you are a US Citizen is a birth certificate. So no one else out there has documents that could potentially show that they were not covered by this. And anyone who tries to claim that, oh, well, this order only applies to babies born afterwards, that wouldn't impact is fooling themselves. If a court were to uphold this, which I don't think they will do, it would obviously throw the citizenship of every single other child born in those circumstances into question, and then it would throw the citizenship of their children into question. Because if the Constitution never guaranteed citizenship in this case, how far back would you have to prove to prove that you are actually a US Citizen? Because even if your parent wasn't undocumented, what if your grandparent was undocumented? What if your great grandparent was undocumented? How far are we going to have to go to prove our own citizenship? And given that I think this will be put on hold, it may eventually make it to the Supreme Court. The Supreme Court will probably have to rule on this in an emergency basis on the shadow docket, because the Trump administration will undoubtedly appeal any preliminary injunction or temporary restraining order to the Supreme Court. I think it's probably likely, as it did with the Muslim ban in Trump's first term in office, that they will weigh in against, you know, overturning a preliminary injunction. I am not, at this moment seriously concerned that they are going to rule against birthright citizenship. You know, if they would, it would be such a break from history and precedent that it would pretty clearly show the entire game is up.
- [33:58]
Dahlia Lithwick
Can we turn for a minute to another? I think really pernicious move again? It's hard to calibrate how alarmed to be but threats to go after local officials who resist doing immigration crackdowns. The acting Deputy Attorney General, Emil Bove, directed prosecutors around the country in a document that came out this week in the Washington Post and the Associated Press to investigate and potentially bring criminal charges against any officials in, quote, sanctuary jurisdictions for, quote, harboring undocumented immigrants or withholding immigration information from federal authorities. Now, now, again, I remember reading Prince versus United States. Seems like you cannot commandeer local officials to do federal law. But what do I know? Is this again, I feel like I just keep asking you how freaked out to be. Is this just throat clearing and chest thumping or is there an actual possibility that local officials are going to be conscripted to do crackdowns?
- [35:08]
Aaron Reichland Melnick
Yeah, and before I get into the specifics of that, I think it is worth sort of highlighting the broad themes of the Interior enforcement Executive Orders. What Trump wants to create is something similar, at least in name, to what the United Kingdom called the hostile environment policy. The goal is to strip undocumented immigrants of of any access to protections to make their lives in the United States more difficult, with the goal that they will self deport. And what is a little bit different from the UK is further efforts by the Trump administration to also provide a hostile environment to anyone who might resist this in any way, including by raising legal claims, asserting their own constitutional rights, or indeed simply claiming that they don't want to get involved with this. Sitting on the sidelines is, in their view, taking a position against them. So beyond the additional legal authorities that the Trump administration wants to use against immigrants themselves, the Executive Orders contain two provisions aiming to create this hostile environment for anyone who tries to resist. One of that is this threat to use the Justice Department against any local or state officials who oppose them, as well as call for the federal government to strip all funding, even funding completely unrelated to immigration, from any jurisdiction that does not comply. Now, as you mentioned, that's unconstitutional. Just quite clearly black letter law. The federal government cannot force states to do certain things and one of those is use their law enforcement for federal purposes without the permission of the state government. States have their own police powers. They get to control how they use their law enforcement, and they cannot be co opted by the federal government without their consent. This is black letter law, very clear. And in fact, multiple courts have held in the past and during the Trump administration that a lot of locations with sanctuary policies are not violating the law, that they are exercising their rights as separate sovereigns to choose how to use their law enforcement agencies. And what resources they want to spend on assisting the federal government with federal immigration enforcement. Nevertheless, we fully expect that the DOJ will be weaponized in these actions. And the question again will be how do courts respond and how does the internal DOJ respond? Will there be one or two splashy lawsuits filed that really don't go anywhere much? It's possible that it just ends up looking like that. More threats, but mostly not actual successful lawsuits. But I think they are hoping that the threat of lawsuits in and of itself causes people to change their behavior. And certainly we have been hearing from state and local governments that many of them are now worried. Of course, this is going further than just the doj. We are now seeing efforts in other places to punish anyone who disagrees at the local level. In Tennessee, the Tennessee GOP is introducing a bill that could potentially make it a crime for a local official to vote for a sanctuary policy. Not even to put in effect a policy that's unlawful simply to vote to have one. Again, that's obviously unconstitutional. You cannot throw a legislator in jail for voting for a law. That is absurd. And yet this is where a lot of the opponents of undocumented immigrants are going. They want to criminalize dissent and criminalize not even dissent, but simply sitting on the sidelines and not giving full throated support. I hope that the courts hold on this. A lot of this is so obviously unlawful that it should be struck down. But as always, it will remain to be seen. Now, beyond that, it's not just local and state officials. It's also nonprofits that assist with the federal government in this. One of the executive orders calls for an audit of every contract and grant between the federal government and any nonprofit organization that provides any services to removable aliens. So that is not just undocumented immigrants, but that would also be people with green cards who are facing deportation proceedings. And then not only does it call for an audit of those contracts, it also says all such contracts shall be frozen until the audit is completed. This has already happened. There is a thing called legal orientation providers. So currently in many ICE detention centers, Congress has provided that there are a limited set of funds for nonprofits to provide basic know your rights presentations for people held in ICE detention. There's also something called the Immigration Court Help Desk, which is at immigration courts, helps people connect with lawyers if they don't have one. One pretty basic small government stuff. Just like helping people get a lawyer and know their rights. Those contracts have already received stop Work orders. And so as of today, Know youw Rights presentations And ICE detention centers have been halted. Efforts to help people find lawyers and immigration courts have been halted. And so the chilling effect of this is already ongoing. And you can see their effort here to essentially make it so that anyone who has the audacity to try to resist by asserting their legal right, that they want to go after them, whether they will be able to go after them, whether this will succeed again, time is going to tell.
- [40:45]
Dahlia Lithwick
So it's so interesting because you're making me think last week we talked to Professor Pam Karlan from Stanford about what one does as a government lawyer in this moment where you have to make these choices about sticking around, trying to mitigate harms, being conscripted into a regime that is doing harm. And one of the things that occurs to me as you're talking and just reading these executives of orders, Aaron, is the degree to which this is really different from 2017. And that is because there's an actual government purge going on. And we don't have to go into the deep details, but, you know, government lawyers are being asked to report on one another and government entities, as you noted, whole programs are being shuttered or paused. It certainly appears that getting rid of everyone, but the loyalist is really at the heart of this administration's efforts to rethink government. And so it leads me to wonder are our whole exit loyalty voice question is not about leaving in disgust or staying to mitigate harms this time because this focus is on purging everyone but the most loyal.
- [41:48]
Aaron Reichland Melnick
Yeah, there have already been resignations from the Department of Justice. In fact, before I did policy, I was briefly an immigration litigator at my organization and on a couple of our lawsuits seeking to vindicate rights under the law for immigrants. And last night got a court notification that one of the DOJ attorneys on a case from a while ago has left the doj. So I obviously can't confirm why that person left, but I have certainly heard internally that many people are thinking of leaving. Now. This also has a counterproductive effect. They are still going to need to have lawyers in courtrooms to defend these policies or to prosecute these policies. And if a bunch of people in the DOJ quit, they are not going to be able to replace them all that quickly. There are obviously some people who are going to be willing to join, but they're going to be losing decades of institutional knowledge. They're going to be losing relationships with judges, and they are going to really be sending a message to the judiciary that things aren't normal. Of course, when it comes to the federal government, there's the presumption of regularity. It's core to a lot of government related lawsuits that the government is presumed to be acting in good faith and on a normal basis. If there are widespread resignations and really a message being sent up from the DOJ to the judiciary saying things are not normal, we may get some significant pushbacks and it remains to be seen again how the judiciary responds to this.
- [43:18]
Dahlia Lithwick
We're going to take a short break.
- [43:22]
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- [44:27]
Dahlia Lithwick
Stop.
- [44:28]
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- [44:53]
Dahlia Lithwick
And we are back with Aaron Raichlen Melnick, senior Fellow at the American Immigration Council. For years and years as we've talked about immigration reform, what we've heard is, well, you just can't deport millions of people, right? We don't have the resources to do this. We don't have the funds to do this. And I think, I think there's two kind of alarming things happening right now. One is this question of how are we possibly going to staff up the courts and the immigration systems in order to handle this threat of a massive influx of cases. And related to that, just the staggering cost of any program of mass detention and mass deportation. And I want to say here parenthetically, that Pam Bondi, the soon to be Attorney General, was a lobbyist for the Geo Group, which is a private prison company whose largest, largest source of income is ice. According to Democrats on the Senate Judiciary Committee, private prisons tend to make a lot of money here, but the costs are going to be just eye watering, and I'm a little bit staggered and wondering how this is all going to be possible.
- [45:58]
Aaron Reichland Melnick
A lot of it isn't possible with current resources. And I think, you know, moving back to the interior enforcement side of things, you know, these executive orders call for not just a ramping up of the use of detention and the use of things like expedited removal approval, which is essentially deportations without a right to see a judge for certain migrants who've been in the country for less than two years. So they are not only trying to expand the authorities, that let them get around some of the bottlenecks like the immigration courts. Similarly, the Alien Enemies act skips the immigration courts, but fundamentally, it remains true that there are only so many hours in the day, there are only so many personnel that can be used to carry out certain arrests. They are very clear restrictions on their ability to carry out mass deportations. If we look ahead to four years, is Trump going to have deported 11 million people? I think the chances of that are virtually zero. The question is how quickly can they ramp up that capacity to increase deportations, and how are they going to do it? And that's why one of the things that we're keeping a very close eye on is budget reconciliation and the upcoming fiscal year 2025 budget negotiation set for March. We have heard numbers thrown around that are staggering. 100 or $120 billion potentially in budget reconciliation for immigration enforcement, which would be an extraordinary sum of money and could actually give them the resources they needed to double detention capacity, maybe even go further than that. But they also are going to need to hire thousands of people or find other ways to replace it. This is where the state and local cooperation is going to play a big impact. And right now, law enforcement hiring is just difficult. This is not just for immigration. Every law enforcement agency is struggling with hiring. It's not as desirable a job it used to be. And the Trump administration is going to struggle with hiring as well. I would say if you look at the Border Patrol, the Border Patrol has been funded for having more than 1,000 more agents on board than they currently have for multiple years. And yet the net number of new Border Patrol agents over the last about eight years is about 100 to 200. It has taken them years, including under the Trump administration, to even get a couple hundred net new agents on board. So they are going to struggle with this even if they get the funding. But the private prison companies, as you point out, are about to make a bonanza. They are going to be rolling in money because Congress will fund some of this. Reporting earlier in the week has suggested that ICE wants to build four new 10,000 bed facilities and additionally over a dozen new smaller facilities that hold 700 to 1,000 people, potentially expand overall capacity in the system by upwards of 55,000 beds. Right now there's about 41,500 beds. ICE has previously said that that if they had the ability and the money to essentially get every single spare bed in the country online, they could get to about 75,000 beds. And so that includes spare beds in state and local prisons. That includes private prisons that the Biden administration divested from when they pulled out of the Bureau of Prisons. So there is some slack capacity in the US prison industrial complex for ICE to get about 20 to 30,000 new beds online. But after that, they're going to have to start building new things. They're going to have to start building tent camps, they're going to have to start building soft sided facilities, maybe purchasing abandoned malls and converting them into detention centers. All of that will take money and will take time. There will be local opposition to some of this. And so even if they do get the funding, it might not come online for multiple years and is subject to a lot of concerns. But that really indicates that they do want to go big. They want to go very big. They want immigration enforcement to look like a where every immigrant in the country is afraid and especially every undocumented immigrant. And for now, that is the big impact. Fear. The fear in immigrant communities right now is higher than it has been in a very long time. And their goal with that is to convince people to leave.
- [50:19]
Dahlia Lithwick
So I can't help but think, and I've been thinking it for this whole time we've been talking, Erin, that eight years ago, folks were out at airports, they were fighting the Muslim ban. You know, every lawyer I knew was at an airport carousel, baggage claim, you know, with a sign that said, I'll be your lawyer. We're not there. And I guess I'm wondering if in fact, what's going on is the chilling effect, the fear that this is really not, not slapdash, shoddy executive order like the Muslim ban. This is something that's been planned for a long time and is being executed in a pretty ruthless fashion. What are you seeing in the bar? What are you seeing in the public, other than fear? What is being done out there to counteract this effect of. I'm just paralyzed because this is so bad.
- [51:17]
Aaron Reichland Melnick
Yeah. I think when you look at the Muslim ban in 2017, it occurred in the first week of Trump's presidency, and it was the first time when people really got the sense that he was going to do what he said he was going to do. It was also chaotic, badly written, confusing, illegal, and even the Supreme Court said, absolutely not. And in fact, they said that again to his second attempt to do it. What has changed? Well, one, that Muslim ban was very visible. It applied to literally people with green cards coming into the country on planes in midair. When we look at the actual texts of the executive order so far, a lot of them are similarly poorly drafted. There is one particular travel ban that is instituted in this executive order that I have seen multiple lawyers look at, and none of us can agree who is actually banned under it, how and where and when, when. And so far, it seems that no one in the Trump administration really knows how that's being applied either. And we've seen very little evidence that a particular travel ban is actually being applied in as broad as it arguably could be because it's so confusing and poorly written that nobody really knows what it means. And so that has given people fewer inflection points to say, I will go to the airport, I will do something, because right now, there isn't that specific place for people to rally. Yes, enforcement will increase, but enforcement has always been ongoing. And if ICE arrests go from 300 a day under Biden to 400 a day under Trump, how visible is that going to be? And it's not clear yet the legal movement is responding. Five lawsuits were filed against the Birthright Citizenship Executive order immediately. But the big difference, of course, is that Americans views have shifted, especially on the border. And the Trump administration is aware and it's arguably responsible for the American public shift, shift on this. Beyond, of course, the actual realities of high increased migration are something that many countries have struggled with. The United States is not alone on this, but what we've seen in American politics is a false presentation of this as just a democratic issue. And actually it's an international issue. Every country in the world, every developed country, is struggling with how to deal with increased migration in the 21st century. The United States is not unique in this.
- [53:35]
Dahlia Lithwick
That.
- [53:36]
Aaron Reichland Melnick
But we are at a moment of backlash against that concept. And what Trump has done is he has successfully tied together many people's view of the people who have been here for a very long time, the undocumented immigrant population and recent arrivals. And they have pitched this idea that recent arrivals are invaders who are here to kill and murder and rape. That is so wrong. Yes, obviously there are bad people who have entered the country, but several million people have entered. And if you round up several million people of any group, you are going to find some awful people within that group. There is no disagreement there. And that is basic human nature. But if you look at who is the undocumented population, well, what do we know about them? We studied this. The majority of the undocumented population here in the country today has been here for more than 15 years. There are millions who have been here since the 80s and 90s because. Because Congress hasn't given them any option to fix their papers. A lot of people falsely believe that we have an immigration system where if you're a good person, you've been living here, you've been following the law, that there is a process that you can go through that you can simply apply to the government and say, hey, look, I want to fix my papers, I want to get right with the law. I'd like to stay. And Americans support a process like that. They still support a process like that. That. So right now, we're a moment. We're at a moment where the American public thinks we're going to mass deport the bad guys and maybe he's going to let the good guys stay. But that is not what President Trump's orders say. And I think the most important thing that people need to understand here is the thing that the executive orders do not do is focus on immigrants convicted of serious crimes. In fact, it is the opposite. Trump's executive orders direct federal prosecutors to stop. Stop going after drug smugglers, to stop going after pedophiles, to stop going after terrorists, and instead to redirect US Prosecutors to focus on immigration offenses as a top priority. This is not an idle threat. In 2018, when Trump put in place the zero tolerance policy under Jeff Sessions, telling border prosecutors to prosecute every single person who crossed the border for illegal entry or, technically, improper entry, what happened? Well, of course, prosecutors have the same time constraints as everybody else. And so what that meant is prosecutions of drug smugglers went down and so what we are going to see right now, and we've already seen orders, as you mentioned this order earlier, coming out of the Department of Justice, telling people to divert prosecutorial resources from drug and terrorism task forces and instead use those prosecutorial resources to go after people for immigration violations. Similarly, Trump has directed that the primary mission of ICE's Homeland Security Investigations, which is their criminal law enforcement arm that is primarily tasked with going after drug traffickers and international syndicates and child sex abuse material online, that that law enforcement agency's primary mission should be immigration enforcement. So you have an administration saying, I don't really care about the pedophiles, I don't really care about the terrorists, I don't really care about the drug smugglers. I want to kick all of these undocumented immigrants out of the country. And that is our number one mission as a nation. And I think that's something that Americans don't agree with. I think that is the kind of thing that there will be backlash to. It's just too early yet for that backlash to have materialized.
- [57:15]
Dahlia Lithwick
So that's a lovely place to end, which is exactly where we started, which is framing this in the language of compassion, framing it in the language of everybody you know knows somebody who is terrified right now. And I just wonder if you might be able to. The last few weeks on the show, Erin, we've been asking our guests, like, what's the mission? What would you tell all the good people who are being barraged by that all feels? I'm glad you've sort of taken the temperature down on some and raised the temperature on others, because it all feels equally red flaggy. I guess I'm just wondering how it is that you want to frame your advice to folks who are listening and who are freaked out and who are also struggling with how to sit in compassion and also react in a way that isn't frozen in terror. What is the ask that you are putting out there for people to focus on right now?
- [58:24]
Aaron Reichland Melnick
I think that's a hard question. And so I will not give one thing. But I'll offer a couple of thoughts. First, we have to remember that no presidential administration can take away our own moral sense of what's right and wrong. And we have to remember there that we can operate in community. We can come together, I think, in person, offer people compassion, offer people understanding, and help people understand that it is not weakness to see someone who has been in this country for 20 years working hard. Yes. Living in the shadows. Yes, technically, in violation of immigration law. But also somebody who deserves a second chance, that second chances are not wrong. Second chances are, in fact, a core part of who we think we are as a country, a country of compassion and justice. And we cannot let this hyper masculine, aggressive view of the United States detract from the values that we hold. And I think there are more people that hold those values than don't hold those values. And then the second thing is to remind people that law still matters. We have to keep making that assertion. And even if we lose some things in the courts, we will win some other things. And I am not at the moment right now where I am saying the law is gone. I may reach that point. We may see inflection points where it does seem that the law has been essentially erased. But I don't think we're there yet. And I think the more that we sit back and are nihilist about that and say the law doesn't matter, the more credit we give them to assert that the law doesn't matter and to act as if the law doesn't matter. We must continue to act as if the law is real and they are bound by it and must follow it, and that we are protected by the laws that everyone has agreed that we are protected by. So don't fall prey to the nihilism of nothing matters, things still matter. There are opportunities for us to vindicate legal rights, to continue to push for us to be a nation of laws with a presidency and an executive branch that is bound by laws. Then finally, I will say find as much as you can, a reliable source of information that can help separate the emergencies from the things just to be concerned about the future from everything that you're going to have going forward, because the zone has been flooded with a lot of things that are false. Some of that is on purpose. Some of that is simply concerns finding sources of information that you believe you can trust about what's going on and what isn't going on is going to be very important in the next few years as we reach a point where propaganda takes over even more than it already has.
- [61:14]
Dahlia Lithwick
Erin, I love this intervention. We've been thinking a lot on the show about living on this seam between cynicism and nihilism. And I love that you're sort of broadening that out, both to aspiration and action, which is really, really, I think you can't live between nihilism and cynicism for very long. And it's really, really, I think, useful to keep remembering that there's more to life than picking your way through the law doesn't matter, and the law matters a little. The law is the thing that we have to work with and we need to work really hard. So I actually thank you very much for reminding me of that. Aaron Reichland Melnick is senior fellow and former policy director at the American Immigration Council, which is a pro immigrant nonprofit aiming to defend immigrants through litigation, advocacy, and more. He has had just an insanely busy week this week, and I fear it will only get busier. But I'm so insanely grateful, Aaron, for your time helping us pick through what just feels like an undifferentiated black fog right now. I feel a lot smarter for having spent this hour with you. Thank you.
- [62:28]
Aaron Reichland Melnick
Thank you so much.
- [62:32]
Dahlia Lithwick
That's all for this episode. Thank you so much for listening in. Thank you so much for your letters and your questions and your comments. They are coming in faster, furious, and we are so grateful. You can always keep in touch@amicus slate.com and you can find us@facebook.com Amicus podcast. My jurisprudential co pilot, Mark Joseph Stern, is waiting for us right now in the Amicus plus cigar bar. We're going to be talking about the temporary restraining order that will presumably become a preliminary injunction against President Trump's attempt at King canceling birthright citizenship, among other things. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen right now. We'll see you there. Sara Burningham is amazing Amicus senior Producer. Our producer is Patrick Fort. Hilary Frey is Slate's editor in chief, Susan Matthews is executive editor, and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.
- [63:57]
Leon Naphar
I'm Leon Naphar, and I'm the host of Slow Burn Watergate. Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters, clacking away. And then there's this rapid montage of newspaper stories about campaign aides and White House officials getting convicted of crimes, about audio tapes coming out that prove Nixon's involvement in the coverup. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years.
- [64:31]
Aaron Reichland Melnick
Five men were arrested early Saturday while.
- [64:34]
Dahlia Lithwick
Trying to install eavesdropping equipment it's known.
- [64:36]
Aaron Reichland Melnick
As the Watergate Incident.
- [64:38]
Leon Naphar
What was it like to experience those two years in real time? What were people thinking and feeling as the break in at Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder, and more exciting than you can imagine. Over the course of eight episodes, this show is going to capture what it was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion, and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn Now. Wherever you get your podcasts.