Podcast Episode Summary

Podcast: Amicus With Dahlia Lithwick | Law, justice, and the courts
Episode: Who Gave ICE Permission to Trample the Constitution?
Host: Dahlia Lithwick (with Mark Joseph Stern)
Guest: Professor Alex Reinert (Cardozo School of Law)
Date: January 24, 2026

Episode Overview

This episode confronts the growing crisis of accountability for federal law enforcement, focusing particularly on Immigration and Customs Enforcement (ICE) and the doctrines of qualified immunity and Bivens that shield officers from legal consequences—even after fatal or abusive conduct. Dahlia Lithwick, joined by guest expert Alex Reinert, unpacks the decades-long legal evolution that has eroded constitutional remedies against federal agents, examines the roots and dangerous applications of these doctrines, and explores not just the systemic failures but the concrete, solvable ways out.

Key Discussion Points & Insights

1. Setting the Stage: ICE, Immunity, and Accountability

• The murder of Renee Nicole Goode by ICE agent Jonathan Ross is the immediate catalyst for the episode, foregrounding decades of legal precedent that makes redress for federal misconduct nearly impossible.
  • Dahlia Lithwick: “When Jonathan Ross shot and killed Renee Nicole Goode ... she became one of at least 25 people shot and killed by an ICE agent since 2015.” (05:28)
• The issue: Federal agents, unlike local police, benefit from layers of immunity—qualified immunity and the near-obliteration of the Bivens doctrine—that shield them from lawsuits even in clear cases of rights violations.

2. Qualified Immunity Explained (06:32–10:07)

• Qualified immunity is a judge-made doctrine, created in the late 1960s and solidified for federal agents in 1982, that blocks lawsuits unless there’s a virtually identical prior court case showing the conduct was unconstitutional.

  • Alex Reinert: “Qualified immunity was introduced by the Supreme Court in 1967 ... [In 1982] Harlow v. Fitzgerald is really the modern qualified immunity doctrine.” (06:32)
  • The doctrine is paradoxical: It only shields officers who have actually violated the Constitution, but applies if the precise violation wasn’t 'clearly established' in prior rulings.
  • Real-world impact: Victims of misconduct have lost cases—even in situations where officers stole cash or violated explicit orders—simply because no previous identical court case existed.

  “I think it's probably shocking, I think, to the ordinary person, that in this country ... violations of the Constitution by our highest level officers and officials aren’t remediable because of this doctrine of qualified immunity.”
  —Alex Reinert (09:49)

3. Bivens Doctrine and the Federal Immunity Wall (10:13–13:04)

• Bivens: The 1971 Supreme Court case allowed lawsuits against federal officers for constitutional violations, but over following decades, the Court has relentlessly closed that door.

  • Today, nearly all lawsuits against federal agents are dismissed unless the fact pattern fits almost precisely into one of three old precedents.

  “Today, when the Supreme Court hears a Bivens claim, [it] basically says we’re not sure that this court would even recognize the right to sue federal officials for constitutional violations.”
  —Alex Reinert (12:20)

• Result: Federal agents are less accountable than ever—even less so than state/local police.

4. The Self-Defense Argument and Constitutional Loopholes (13:04–16:56)

• The government, and especially public figures (e.g. Kristi Noem, J.D. Vance), have invoked self-defense and a near-absolute federal immunity in fatal encounters.

  • Alex Reinert: “If you’re a federal official, the Fourth Amendment itself provides you protection if you act reasonably. ... You don’t need qualified immunity if you haven’t violated the Constitution.” (13:30)
  • Even if the circumstances truly justified use of force, existing law already shields reasonable behavior—qualified immunity exists only when officers cross the line.

• Major Insight: The inability to bring lawsuits means factual disputes (like “Was Ms. Goode a threat?”) are barely tested in court.

5. How Our Laws Got Here: History and Loss of Oversight (16:56–19:10)

• Post-Reconstruction laws anticipated law enforcement violence and were explicit about the need for federal remedies, especially amidst state-sanctioned or tolerated violence against marginalized groups.

  • Alex Reinert: “We have these new laws, we need to make sure they're enforced, and we need to provide a muscular regime for enforcing them.” (18:01)

• Over time, the meaning of “law enforcement” has become captured by policing institutions, to the detriment of enforcing constitutional constraints.

6. Freeze on Legal Evolution: The Crabbed Test (22:26–26:11)

• The modern test for qualified immunity freezes legal development: unless law was already “clearly established” (in a prior case, before the incident), victims cannot win—even if the court never reaches the actual constitutional issue.

  • Alex Reinert: “We never develop the law in a way that courts are used to ... It becomes harder for the next plaintiff ... to show clearly established law because the last case never gave us an answer.” (23:38)

• Impact: Both civil rights and effective policing suffer—nobody, including police, knows where new boundaries are.

7. The Immigration Exception: Rights Erosion at the Border (26:11–31:11)

• Immigration law is supplanting criminal law norms—private citizens are increasingly unable to bring claims against ICE and border agents, especially after Supreme Court rulings in recent years.

  • Hernandez v. Mesa: No remedy for a cross-border shooting.
  • Ziglar v. Abbasi: Detainees held in harsh conditions after 9/11 had no Bivens claim.

  “Those people are going to be the people who are most immunized from accountability when those policies violate people’s rights, result in death and injuries.”
  —Alex Reinert (28:58)

• Recent whistleblower revelations: ICE claims agents can enter homes with only administrative warrants (not judicial)—a radical shift undermining Fourth Amendment protections.

  “It’s extremely concerning and also an untenable interpretation of the Fourth Amendment ... Administrative warrants don’t provide that judicial [independent] protection.”
  —Alex Reinert (33:12)

• This memo extends ICE authority in “a minnow swallowing the whale of doctrine” (Dahlia Lithwick, 33:08).

8. “Absolute Immunity” and Political Defenses (36:00–39:14)

• Politicians like J.D. Vance have falsely claimed that federal agents have or should have "absolute immunity" for their actions.

  • Alex Reinert: “Of course it’s absolutely false to say that just because a federal officer is engaged in some kind of law enforcement operation, they're entitled to some kind of immunity … It would be outrageous if it were the law.” (37:38)

• In practice, the federal government often blocks criminal investigation or prosecution, compounding the immunity problem.

9. Fixing the Problem: Legislative and State Remedies (41:29–48:11)

• Multiple levels of solutions:

  • Congress could abolish or revise qualified immunity and create a right to sue federal officials (possible but not currently likely).
  • Supreme Court might, at some future date, reconsider doctrine (slim and long-term hope).
  • States can abrogate qualified immunity (as Colorado, New Mexico, New York City have begun to do), and potentially allow lawsuits against federal officials for constitutional violations under state law.
  • Recent state actions: Illinois, California, New York, all considering or enacting such statutes.

  “There are easier and harder ways to do so, ... but until [uniform federal action] is possible politically, I think it’s really important for states to think about what they can do in their states to protect the people who live there.”
  —Alex Reinert (47:10)

10. The Bigger Picture: Systemic Accountability and Public Awareness (48:23–55:03)

• Addressing policing and federal accountability requires a holistic, systemic approach—it’s not just bad apples, it’s the legal regime.

  • Alex Reinert: “[Current doctrine] leaves those costs directly on the people who suffered them. ... the problems we’re talking about are systemic.” (50:31)
  • True police accountability requires fixing “the legal regime that we set up to allow people to sue and what kinds of things they sue for,” including for injunctive (structural) relief.

• Public attention surged briefly post-George Floyd, but progress is slow—the issue remains largely below the radar except in moments of crisis.

  “If we think there’s something good that comes out of police, if we think it creates some value for the public writ large, why should the costs be borne solely by the people who suffered most significantly as a result of it?”
  —Alex Reinert (50:44)

Notable Quotes & Memorable Moments

• Alex Reinert:

  "We have a constitution that is supposed to be meaningful in this country and it's supposed to govern the conduct of all of our officers. And it is perverse that we have a federal constitution that means less for federal officials than it does for state and local officials." (02:23 & 15:39)

• Dahlia Lithwick:

  "ICE enforcement obliterates everything you and I understand about the warrant requirement in the Fourth Amendment." (33:08)

• On accountability:

  “It’s not so much about the individual officer. It’s about creating a regime, a legal regime that allows us to get answers to the questions of how people were mistreated, whether … it was unlawful, and making sure we can build systems so that it doesn't keep happening. Because right now we're in a world where it is happening over and over again and it seems like there are very few tools in our toolbox to prevent the reoccurrence.”
  —Alex Reinert (54:22)

Key Timestamps

• 05:28 – The Ross killing and the high count of ICE shootings since 2015.
• 06:32 – Alex Reinert begins explaining qualified immunity.
• 10:13 – The Bivens doctrine’s history and erosion.
• 13:04 – Discussion of self-defense arguments in police shootings.
• 16:56 – Historical context: post-Reconstruction remedies and attitudes.
• 22:26 – "Frozen" law under the qualified immunity regime.
• 26:11 – Supreme Court narrowing remedies in immigration and border enforcement.
• 31:32 – AP report: ICE’s claim of authority to enter homes without judicial warrants.
• 36:00 – Refuting J.D. Vance’s assertion of “absolute immunity.”
• 41:29 – Concrete fixes: federal, Supreme Court, and state-level solutions.
• 48:23 – Closing reflections: the challenge and necessity of systemic accountability.

Conclusion

The episode meticulously unpacks the legal structures that have allowed ICE and other federal officers near-total immunity from accountability, painting a disturbing portrait of a constitutional order in which the people most empowered to enforce the law are also most shielded from it. Professor Alex Reinert explains that none of this is inevitable: both historical precedent and current legal tools exist for fixing the crisis. Whether by federal action, judicial intervention, or—most immediately—state legislatures, meaningful change is possible. But it demands public awareness and the political will to demand accountability, not just for the sake of victims, but for the future of democratic civic life.