← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Will You Accept This Robe?
00:59:36
Is Supreme Court nominee Neil Gorsuch really “Scalia 2.0”? And, the constitutional and human costs of Trump’s Muslim ban.
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- [00:06]
A
Hi, and welcome to Amicus. I'm Dahlia Lithwick, and I cover the courts and the law for Slate. There's a ton of ground to cover, but before we get to it, I'm going to offer up a tiny editorial note, which is something I don't usually do. This podcast was launched out of a deep love and respect and regard for the U.S. supreme Court, an institution in which civility and reason and facts still truly matter. And in that spirit, I think we've been at pains to be fair and polite and respectful with both sides in every case, even if we once in a while felt arguments were without merit. And I'm saying this now because it is not possible to be fair and polite in the current climate. And for the folks who think that it is our obligation to always tell the other side, I need to stop and clarify. This is not the show that intends to give voice to enable to in any way help or normalize an administration that is demonstrably racist and misogynistic and, in my view, view incompetent and cruel. And so if you want the show that gives equal time to the legal arguments being advanced by the Trump administration, I think this is the time that I tell you you should probably look elsewhere. We make this show because we love the law, we love the courts, we love the Constitution, we love the presumption that we treat each other well and that facts matter. And we are going to continue to probe deeply both sides of legal issues that have two genuine sides, but we're not going to give intellectual cover to what we think of as legal nihilism. And so later in the show, we're going to take stock of the ever growing pile of lawsuits challenging the executive order on immigrants and refugees. And we're going to talk to a lawyer involved in one of the first of those cases. And we're also going to take a few minutes to consider what happens, constitutionally speaking, if border officials opt to just ignore federal court orders. But first, as you may have heard, there's a little bit of Supreme Court news this week.
- [01:57]
B
Ha.
- [01:58]
A
Supreme Court. Remember them? After almost a year with a vacant seat on the Supreme Court bench, a seat that went vacant for February 13th of last year, and a nomination that was obstructed for almost a year by Senate Republicans, we finally have a new nominee for that vacant slot. Neil Gorsuch sits on the 10th Circuit Court of Appeals. He hails from Colorado. And in a dramatic primetime ceremony at the White House on Tuesday night, President Trump introduced this new nominee to the Nation.
- [02:30]
C
Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline, and has earned bipartisan support. When he was nominated to the 10th Circuit Court of Appeals, he was confirmed by the Senate unanimously also. That's unanimous.
- [02:48]
A
Can you believe that?
- [02:49]
C
Nowadays, with what's going on?
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A
Joining us first to talk about Judge Gorsuch is Elizabeth Wydram. She's president of the Constitutional Accountability Center. They describe themselves as a DC Think tank dedicated to fulfilling the progressive promise of the Constitution's actual text and history. I've wanted to have her on the show for a long time, and she's super busy. So, Elizabeth Wydra, welcome to Amicus.
- [03:15]
D
I am so excited to be here. I'm a huge fan of the show.
- [03:19]
A
So let's start on Neil Gorsuch. I know you've been asked this 200 times in the media this week, but can we just stipulate for our purposes that Judge Gorsuch is a really nice, good guy. He has a lovely family. He's an incredibly smart and thoughtful writer. And if one were to probe deep in his heart, he's a good guy.
- [03:43]
D
I'm sure. You know, I hear he's also a great skier. I was on another show where someone called him a silver fox. Like, okay, yes, we'll just, you know. Sure.
- [03:52]
A
Okay, so let's do that.
- [03:53]
D
Stipulated.
- [03:54]
A
I think it's important, and I think, you know, under my facetious question, and your slightly facetious answer is, you know, if this is gonna be a referendum on. Is this like a spitting demon that's not useful to anybody, Right?
- [04:08]
D
Yeah, exactly. It's not. You know, this isn't about whether he's a nice guy or not a nice guy. This is about whether he has the record to be on the Supreme Court, an incredibly important job. We're not looking to have someone be America's next best friend. This is an important question of can you follow the Constitution? Can you follow the law when you get to this incredibly important job on the nation's highest court?
- [04:31]
A
So, Elizabeth, first start by telling us what the Constitutional Accountability Center's posture is on this nomination. So we're completely clear.
- [04:41]
D
Yeah. So we are looking at the nominee's record. We have a policy that we don't oppose or even support. Although Merrick Garland was a little different. He never got a hearing. And we don't oppose or support until after the nominee's hearing. So right now we are looking at his record. We have looked at his record and some of his writings, and I have to say, we have really serious concerns. So we're going in with a posture of, look, he has a really heavy burden to show that he will follow the Constitution instead of a conservative political agenda. And also against the backdrop of what we've seen, even just these two weeks of the Trump presidency, a really strong burden to show throughout this process that he will be an independent check on the president who is putting him forth to be on the bench. And that's a really important question of independence because we've already seen some seriously anti Constitution authority and tendencies from this president.
- [05:38]
A
I think probably at this point, listeners know about where Judge Gorsuch stands on a few big issues. I think folks want to know where he is on abortion. We don't have a lot of directly on point abortion writings for him. So what do we know?
- [05:57]
D
Well, I think when it comes to abortion, perhaps one of the things that I start with is frankly, what Donald Trump told us over and over and over during his campaign, which is that he would have, in his words, a litmus test, something that most politicians usually dance around. Not Donald Trump. He said, I have a litmus test. My nominee to the Supreme Court must be willing to overturn Roe versus Wade. So that is what he promised. He has shown himself to be pretty much true to his campaign promises just in these first days of his presidency. So that suggests to me that he picked Neil Gorsuch because he knows he will be willing to overturn Roe versus Wade. But even looking at his judicial record, he has, which a lot of the listeners probably know about, some troubling rulings about reproductive choice and access to contraception in that litigation about religious objections to contraception coverage under the Affordable Care Act. He was very strongly in favor of extinguishing women's rights to the contraception they are entitled to under the ACA because of the religious objections of first a corporation which having corporations recognized as having religious free exercise rights was something that had never happened before in our history in the way that Judge Gorsuch advocated for it. So that's obviously a real concern. He also would have supported the governor of Utah's defunding of Planned Parenthood after those videos came out. Unfortunately, he was not in the majority on the 10th Circuit for that. So between his record and what Donald Trump has said, there's real cause for concern that he would be very hostile to women's rights to abortion and contraception coverage.
- [07:40]
A
And Elizabeth, the other thing that I think Trump promised during the campaign with regards to the Supreme Court was pretty explicit promises around the Heller decision and gun rights Again, we don't usually have presidential candidates saying, hey, my justice is going to do this. Although, in fairness, Hillary Clinton said, you know, my person's going to double down in reverse. Citizens United. So this is a game the whole family can play. But it seems to me that if one thinks about where Judge Gorsuch is on gun rights, again, we don't have a lot squarely on point on his Second Amendment views. Right.
- [08:18]
D
Yeah, we don't. In his terms of his judicial record, again, we're kind of going on what Trump said. And, you know, I should be clear. I don't think, you know, Clinton should have had a litmus test either. I think, you know, you pick someone based on their judicial philosophy and ideology and their record, but you don't go in basically having them guarantee votes for you in a certain case. That's not how we want our judges to operate. We want them to take the cases as they come and not be in a position of pretty much owing the person who put them on the bench a vote in a particular case. And in addition to the gun stuff, the other litmus test that Trump said he would use was a nominee who he would choose, a nominee who would vote for religious liberty on the bench in a way that evangelical Christians would like. And, you know, I am a big proponent of religious free exercise. It's a crucial part of our Constitution and part of the fabric of our American values. But a justice is there to defend the Constitution, which applies equally to people of all faiths or no faith, and to have this idea, in fact, Trump used the words that he thought Christians would be represented fairly by his pick for the Supreme Court. They're not there to privilege one religion over another. Obviously, this is a lot in the conversation these days with the Trump refugee and immigration ban with respect to Muslims. So that is also very concerning.
- [09:44]
A
One of the things that I suspect has been glossed over a little bit in the early conversation around Judge Gorsuch is where he is on deference both to the executive branch and maybe more interestingly or more wonkily to agencies. And so I am going to ask you to do a very unfair heavy lift and explain Chevron and what Chevron deference is, and then explain this is an interesting crusade. Right. For somebody who purports to be for judicial humility, explain a little bit what it means that Judge Gorsuch has really come out against this principle of deference to Asians.
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D
Yeah.
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A
So this.
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D
This risks being a little wonky, but it's incredibly important.
- [10:31]
A
No such thing. As too wonky on this show. I know.
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D
Good.
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A
I love it. Bring it, bring it.
- [10:36]
D
Chevron, it's not just a gas station. So there is this doctrine that I should note, even Justice Scalia supported in his way, that recognizes that Congress writes laws, but they cannot foresee every particular application or minute detail. And so the administrative agencies, like, for example, the Environmental Protection Agency, then take those laws and implement them through a series of regulations. This is where a lot of the important, again, environmental regulations come from. But many other agencies, and so the courts, in reviewing challenges to those regulations, say, look, if the statute is somewhat ambiguous here and the regulation is a reasonable interpretation of the statute, then we'll defer to the expertise of the agency. Again, the EPA is a great example. You have scientists and people whose job it is to know whether these regulations with respect to, you know, dumping coal in streams, for example, is something that is going to further the goals of the protective laws that Congress has passed for the environment. But Gorsuch, again, even unlike Scalia, would do away with this doctrine of deference. And what that means practically is that it would be much harder for these agencies who regulate across areas that are crucial to the daily lives of Americans. So clean water, clean air, workplace safety, anti discrimination laws, really important parts of our daily life when we go to work, breathe the air, eat our food, it would make it harder for agencies to defend those challenges against what have been largely conservative attacks. You know, it's been talked about that, okay, Chevron is not an ideological doctrine. It applies to both, you know, the Trump administration agency regulations as well as the Obama agency regulations. But it's just a fact that conservative small government Republicans tend to do less with their agencies. And progressives, who I'm proud to say are, are advocates for the environment and workplace safety and consumer protection and anti discrimination, we tend to use our agency regulations a little bit more. So even though it's on its face an ideologically neutral doctrine, it is really something that conservatives have taken up as a hobby horse to get rid of this doctrine in an attempt to get rid of a lot of the modern day administrative state, which does a lot of the things that progressives and I think, frankly, most Americans love. I mean, we should all be in favor of clean air, safe food, and clean water.
- [13:14]
A
But underlying this, there's this weird paradox because I think Judge Gorsuch has written so sharply about the difference between what judges do and, you know, good judges and bad judges and progressives, you know, running to courts and asking judges to intervene. It does feel like There's a deep tension, isn't there, between him saying, on the one hand, you know, restraint and humility, and on the other hand, judges should micromanage the epa. Am I being unfair? Fair?
- [13:43]
D
Well, I think he sees it, certainly. And those of us who, you know, are deeply steeped in this, saw allusions to this. In his statement that he made after Trump put forth his name in that primetime final rose ceremony, he said that he thinks Congress is the one that makes the law, not judges. So I think he sees himself as sort of this valiant hero of attacking big government agency regulations and putting the power back in Congress. I think what I'm trying to say is I think there's a little bit of an ideological edge there of trying to get rid of regulations that you think are too, let's say, intrusive on corporations, even though they benefit everyday Americans. So I think there is an ideological edge to it, even though it's kind of put in this frame of being restrained and small government.
- [14:37]
A
Elizabeth, I want to ask you one other framing question that I'm trying to get my head around. I'm not a huge fan of the language that we started hearing around the Bork hearings, the Robert Bork hearings, about this is a judge who's inside and outside the mainstream, as though there are some goalposts, and we can determine by some unknowable metric whether this person is in the mainstream or out. Linda Greenhouse had an interesting piece this week saying the mainstream changes, and it's even changed since the Bork hearings. It was unthinkable at the time of the Bork hearings to, for instance, challenge the Affordable Care act on commerce clause grounds. I want to ask you a Is there any utility in this language of inside and outside the mainstream? And then I want you to just tell me, yes or no. Is Judge Gorsuch outside the mainstream?
- [15:32]
D
I think, you know, it's a little bit useful in the sense that I don't think any American from either party would want to have an extreme judge one way or the other. We don't like to think of our judges as being on the fringe, certainly, but I don't think it's actually very helpful, exactly for some of the reasons that you said. I think the more helpful frame is to look at whether this person is following the Constitution and the law as it is written, as it has been interpreted, and not following their own political agenda. And I think that's really important to be careful of with this particular nomination because there's been a lot of praise for Gorsuch from his supporters as being an originalist, someone who follows the Constitution as it was written. But what I'm concerned about when I look at his record and his writings is that he's not actually following the whole Constitution. Instead, it's much more this vision that when I look at actually the way that the Founders wrote the Constitution to create a national government capable of solving national problems, instead they have this small government view. And importantly, they kind of forget everything that happened after 1789 and the way that we amended our Constitution in line with what the Founders thought we should do. They put the amendment process into the Constitution. When they wrote it in the 18th century, they wanted us to amend it. And we did that in crucial ways, especially after the Civil War. That was when Americans wrote into the Constitution the guarantees of equal protection for all persons wrote in this idea of equal citizenship, that no matter where your parents came from, of whatever color, creed, if you were born in the United States, you were born an equal citizen. And also the important protections for voting rights, that voting shall be free from discrimination on the basis of race, national origin or gender. These important federal powers to enforce those guarantees. I haven't seen a lot in Gorsuch's records in this, even though he's an originalist who support supposedly follows the Constitution. Well, how does he feel about those amendments? I haven't heard anything about that. And in fact, you mentioned this. He has written in a critical way that lawyers shouldn't go into the courts. He specifically called out those who advocated for marriage equality for LGBTQ Americans. Well, that really troubles me because that is a right that's in the Constitution and it is absolutely individuals rights to go in and say, I am owed this protection under the Constitution. And it is your job, Judge. It is your job, judicial branch, to vindicate that right for me. So the fact that he doesn't see that really makes me question his commitment to the Constitution and question really his claim that he is someone who follows the Constitution's text and meaning if he doesn't follow the whole Constitution.
- [18:35]
A
I want to give you a chance to think through with me, and I confess I'm struggling with this, Elizabeth, this kind of triage problem of I'm sure what you're hearing from progressives is what I'm hearing, which is how hard do we fight this nomination? We have an existential threat going on. We have a president who has disparaged the judicial branch, who has called out a judge by name based on his family's race. We really have no time to fight about Neil Gorsuch, who's basically at least not crazy. Let's spend our time working on putting out much, much bigger threats to the Constitution that may take the form of, you know, Donald Trump's executive order around immigration, proposed executive orders around religious freedoms. What's your answer to this question of, you know, on a sort of DEFCON 12 scale, this doesn't feel like where we should be putting energy as progressives.
- [19:44]
D
Well, I think the Supreme Court fight, frankly, brings together the threads of a lot of the battles that you mentioned, the concerns about Trump's authoritarianism, the values of religious tolerance and freedom that are rebuked in Trump's travel ban. When we talk about the Supreme Court, we're talking about something that goes much beyond just the four years of the Trump administration. Neil Gorsuch could be on the Supreme Court for 20 years or more. So it is a really important engagement for the progressive movement. And I think one of the things that I am going to value from this conversation is that we are going to have a process, we're going to have a hearing where we should be demanding answers about all of these concerns that we have about the other activities of the Trump administration. It is entirely appropriate to ask Neil Gorsuch whether he thinks that if the Trump administration refuses to comply with an order, for example, striking down the Muslim ban, is that a constitutional crisis? What would his court or another court do if he refuses to comply and instead takes this authoritarian route that he has seen fit to take, at least in his rhetoric thus far? It's entirely appropriate to ask Neil Gorsuch, what is your interpretation of the emoluments clause, which Donald Trump has flouted since day one of his presidency because he's engaging in these business dealings with foreign governments through his Trump Corporation and its business holdings, so we can have these conversations about American values, about our constitutional values that Trump seems willing to disregard, and about, frankly, what the role of a justice is. Is it someone who's there to represent evangelical Christians, as Trump has seemed to promise? Or is it someone who's there to follow the law fairly and administer justice equally for all, not just the wealthy or the powerful, not just for people who happen to look like the justice, pray like the justice, or have the same amount of money in his bank account? So these are important questions that go to the heart of the who we are as progressives and who we are as a country.
- [22:07]
A
But now, you know as well as I, in fairness, that when Judge Gorsuch is asked about his views on the emoluments clause or on religious liberty, he's going to say, I can't answer that because it's going to come before me. So is this just a kind of pro forma, let's get it out there? He's not going to answer. We can't really know anyhow, performance for the American people of progressive values, or is there some utility in actually saying, no, we're just not going to confirm you because we know where you are on this?
- [22:37]
D
Well, I think, look, we're in unusual times and we have developed this norm where no one really answers any questions at the hearings and it's all kind of this theatrical performance. But I think frankly, to be honest, the backdrop of the Trump administration raises the burden for Neil Gorsuch. I think he has to show that he is actually someone who, and this is where I think maybe the mainstream point is useful, who is in the tradition of the American constitutional values that we have frankly taken for granted, I suppose, and that seemed to have no place in the Trump administration. So I think the burden is very high for him and that maybe he does owe us some answers on some of these points, particularly the concerns that he will not be independent, will not be willing to step up and be a check on constitutional violations or other transgressions of the administration of the president who's putting his name forward. But I think the stance that Chuck Schumer has laid out of saying, you know, we're going to go with the 60 vote threshold, that's what we did for President Obama's nominees, Justices Kagan and Sotomayor, who are both confirmed with more than 60 votes. You know, that seems to be a good standard because that shows that the person is capable of getting bipartisan support, that Neil Gorsuch, if he can't get that bipartisan support, then there's a problem.
- [24:02]
A
Elizabeth, I want to just close with the question that the super wonky wonks are fighting about in the smoke free back rooms of progressive wonk land. And that is what are your thoughts on this? Well, let's just let, let Gorsuch go by with the understanding that we'll bring it when Justice Kennedy steps down. In other words, you know, again on this triage question, this isn't a fight worth having, you know, in worst case scenario, best case scenario, you know, so they kill a filibuster. Nothing good is going to come out of using this as a marker to punish Mitch McConnell for Merrick Garland. So let's just let it go, fight other fights and live to see another day when Justice Kennedy's seat opens up. Do you have thoughts that you can share on that argument? That's I'm hearing it everywhere, and I'm just curious what your thoughts are.
- [25:03]
D
Well, I think, you know, I'm a constitutional lawyer. I'm not a backroom political dealer. But I think if you are concerned about the filibuster and Mitch McConnell's ability to get rid of it with respect to Supreme Court justices, he could get rid of it with this battle. He could get rid of it with the next battle. So that's a concern no matter what. I mean, obviously we care deeply about who is on the court, because it's not just a question of who comes next, but it's also about how this person fits into this court and the coming court. If this person who's nominated now is going to be a staunch vote against abortion rights, that's going to add to the majority in favor of that if the next nominee is also in favor of striking down Roe versus Wade. So I think every justice on the court is important. And, you know, I was deeply disheartened by what happened to Merrick Garland, not just because I think that he would have been a great justice, but also because I care about the institutions of our government. I know that might be a little Pollyannish, but I do. And the fact that those norms were basically exploded, I think is not good in the long term for the American people. And I really hate to see the undermining of our highest court in the nation and the way that the justices who get put on there are treated.
- [26:34]
A
Elizabeth Wydrat, we have loved having you on the show today, and I hope we'll stay in close touch in the coming months as this goes forward. Thank you so much for joining us.
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D
Thank you for having me. There'll be no shortage of constitutional topics for discussion to come.
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A
One hopes that maybe there would be a shortage, but I suspect you are quite right.
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D
I know.
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A
Thank you.
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D
Thank you, Dalia.
- [26:58]
A
President Trump signed his executive order on immigration and refugees one week ago this Friday. The following day, enormous crowds of protesters started gathering outside airports in Washington, Los Angeles, New York, Boston and other American cities. If you are following the drama that day, you may have gone to bed with at least some small feeling of relief in the wake of the news that a federal judge in Brooklyn had issued an emergency stay blocking the deportation of travelers caught up in these new restrictions. In the days since, however, there have been signs in a number of cities that the people responsible for enforcing the president's new rules and for that matter, subsequent court orders about those new rules that they may be playing by their own set of rules. This would be the agents for the Customs and Border Patrol, or cbp, an agency situated within the Department of Homeland Security. This raises the question, what happens when law enforcement agents working for one part of the federal government are ignoring orders from another part of the federal government, federal judges? I'm sorry to say that I, for one, didn't have a ready answer to that question, nor, as it turned out, did any of the other legal writers here at Slate. And so earlier this week, my fellow Slatesters, Mark Joseph Stern, Leon Nayfak and I tried to track down some constitutional law professors to see if we could wrap our brains around the possibly very disturbing prospect of what might happen next. Mark, Leon, welcome to Amicus.
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B
Hi. Thank you.
- [28:26]
E
Thanks for having me on.
- [28:28]
A
All right, gentlemen, I think the first question is what happened? What happened last Friday after the executive order was signed? Why did lawyers suddenly go racing out to airports Saturday?
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B
So there was an immediate realization that there were people who were on their way to the US from countries that were named in the ban. And it was unclear what would happen to these people once they arrived. And sure enough, when they did arrive, they encountered problems that they were not expecting, and lawyers were needed to sort it out.
- [29:06]
A
And, Mark, do you want to talk a little bit about I know that by Sunday we were talking about four or five judicial orders. Now we're talking about many more. Can you just set the table and give us at least some sense of how many judges, as of, say, Thursday or Friday, have weighed in and what is the scope of the judicial orders that we're seeing?
- [29:30]
E
So it's more than a dozen. And it all started on Saturday night when Judge Ann Donnelly in Brooklyn issued a nationwide injunction prohibiting Customs and Border Protection Office officers from deporting anyone who was in the United States or in transit to the United States when Trump signed this executive order and who was affected by it. So, you know, she essentially halted deportations of hundreds of people. We still aren't sure how many, but at least hundreds of people who are lawful permanent residents, green card holders, lawful visa hold holders who have done nothing wrong but were targeted by Trump's order and were basically in the air on the way to the US when he signed it. That kicked off basically an onslaught of lawsuits against this order in different states and different courts, many of them targeting different aspects of the ban, trying to protect different classes of plaintiffs. And so shortly after the Donnelly order, a Virginia judge ordered that Customs and Border Protection officers let detainees speak to attorneys. That decision was apparently ignored by officers, setting up a bit of a crisis, which we can discuss. And shortly after that, a series of judges just kept chipping away at this order, saying, you can't hold these people, you can't deport those people. You have to release the detainees, several judges said. And now we're seeing a sort of broader lawsuit being filed by, for instance, the State of Washington, attempting to knock down not just the immediate implementation of the ban, but the entire ban itself, arguing that the executive order is unconstitutional. And it's not just a violation of the due process rights of those few hundred people who were trapped by the ban on Saturday and Sunday, but a violation of the constitutional rights of everyone, the thousands and thousands of lawful visa holders and permanent residents who will be denied entry into the United States simply because Donald Trump doesn't think they should be here.
- [31:51]
A
And I think that there's a factual question that probably listeners are struggling with, and I know it is the predicate for the work that the three of us tried to do in understanding whether the judicial orders were being violated. And the factual question is just this. I think that CBP just claims that no judicial orders are being violated. There are no detainees. Nobody is being denied access to a lawyer. In other words, the claim isn't, no, we're violating your order. The claim is, we're not violating the order. Is that. And I know all three of us have tried to ferret out the truth of that. But Mark, you said, for instance, you know, it seems that in Virginia, that order was being violated. I'm still confused, and I suspect listeners are confused about who is violating the order, where which orders are being violated. Help us understand if, in fact, this is a binary question of there are judicial orders and there is noncompliance, or if it's more complicated than that.
- [32:54]
E
So I can speak to this first, and then Leon can fill in some gaps. But it seems that Customs and Border Protection officers are interpreting these orders simultaneously, narrowly and rather generally. So, for instance, they have suggested that they don't think it qualifies as detention under these orders if they hold visa holders or even green card holders in the airport for extensive questioning for hours and hours on end for no particular reason other than the fact that. That they're targeted by this ban and threaten not to let them go unless they answer questions to their satisfaction. You know, under really long lines of case law, that would be considered a detention. But officers say, no, it's not. And Therefore work around the order. And on the other hand, they suggest that detention is only on site at the airport. And so there are rumors that some people have been moved from the airport that they flew into to an off site location. There's rumors of these sort of black sites. We don't know if it's true, but the CPB has not outright denied a lot of this stuff. And so like you said, it's just difficult to figure out. I talked to a bunch of lawyers at Dulles Airport on Monday and no one can figure out what CPB means when it says we are complying with this order because it entirely interprets detention in such a sort of idiosyncratic and strange way.
- [34:26]
B
Yeah, and one thing that I haven't been able to parse is whether they sincerely believe that they are following the orders or whether they are. They have their own goals like immigration policy wise, that they are advancing by interpreting these orders in a way that suits those goals. I just don't think we know. Right.
- [34:47]
A
Can you unpack that, Leon? I mean, what does that mean?
- [34:49]
C
Well, I don't know.
- [34:50]
B
Like, so Trump has this executive order that says that these people should be kept out. Does CBP think that he's right about that and that they will do everything they can to interpret that as broadly as possible? Even as these court orders come down, are they motivated to find ways around the court orders because they believe that they need to be as aggressive as possible in the way that Trump has laid out? That's what I don't understand.
- [35:17]
A
So then we turn to the inexorable next question, which was the basis of this piece the three of us put together, which is if it's the fact that I think we can't establish definitively, but certainly being reported that there are CBP agents who are violating federal judicial orders, what next? Are we in a constitutional crisis? It seems like there's at least some array of answers that we received from the various folks that we spoke to. In some cases, I think we heard people saying, look, this is never going to rise to so called constitutional crisis. This is going to get worked out because these systems exist to work this out. And then I think we had some who are a little less sanguine than that. Right.
- [36:05]
E
We had many who were a little less sanguine, some who just threw up their hands and said, I have no effin clue. This could play out in a ton of ways and none of them are good. But we also had some experts who suggested that there's a fairly straightforward fix which would simply be for a court to order its marshals, U.S. marshals, into the airport and tell Customs and Border Protection, you must comply with this order. Let's see evidence that you are now the now, that is simultaneously straightforward and a little terrifying because you're talking about two different, extremely well armed groups of US Law enforcement going up against each other and attempting to force each other to comply with what they see as the law. It's a little distressing to imagine that it seems more like a kind of third world crisis kind of scenario than a good old American standpoint. Off. But that's the only strong, concrete answer we received. If we don't send marshals in to comply with a court order, then there's probably no way to force an executive branch agency to comply with the court order.
- [37:18]
A
Leon, how concerned were the folks you talked to about something that Mark is describing as sort of Banana Republic style standoff between different branches of the federal government in our airports?
- [37:31]
B
I guess I got the sense that there's a lot of back and forth that would happen before. You know, we would see like an armed confrontation between two different law enforcement groups. It seems like the judges would first be asked to clarify their orders, and then CBP would have to produce records of who it was that was telling them to do things the way they were doing. And I guess I got the sense that there would be a fair amount of talking before we got to, you know, U.S. marshals storming LA AX and dollars.
- [38:05]
A
Well, I'm for talking. I think that's good. I think that one of the things that the Trump administration is saying is, look, if you would just confirm Jeff Sessions, this would be a lot easier. Right? I mean, why are you guys simultaneously hobbling our ability to formulate policy and then criticizing us for not having policy? What? What's the answer to that?
- [38:28]
B
Well, there was that Washington Post story from the other day that indicated that Jeff Sessions was perfectly involved. Already his input is being taken into consideration. So I guess I don't totally buy that having Sessions in as AG would bring any clarity to the situation.
- [38:44]
A
Mark, is there. Are you hearing what I'm hearing, which is that a lot of federal lawyers who are being called upon to defend these actions similarly are saying, look, we had an acting Attorney general, her name was Sally Yates. She's gone. We don't know. We're being asked to cough up lists of, you know, detainees. We can't do anything because we don't have a boss.
- [39:08]
E
Yes, absolutely. I think it's really kind of panic mode. At Justice Departments, especially for career employees who want to do the right thing and, you know, enforce a law so long as it's constitutional, they have no idea what's actually happening on the ground. They don't have good information. Customs and Border Protection is not exactly being transparent with government attorneys. There's not a clear sense of what's going on. And with Yates out and this new guy in, but Sessions almost certainly on his way, there's just constant tumult and a lot of turnover. So it's a terrible situation for all of the good guys involved. I think there are a lot of Justice Department attorneys who want to do the right thing but don't know what that looks like. And I think there's a chance the situation could calm down if and when Sessions is confirmed. But given that Sessions was apparently behind at least part of this order, there's also a chance that everything could just go to level 11.
- [40:05]
A
Mark Stern and Leanne Nayfak are both colleagues of mine at Slate. They are very tired from what has been an incredibly busy week covering the airport cases. Gentlemen, thank you so much for joining us today.
- [40:19]
B
Thanks for having us.
- [40:20]
C
Thanks, Mark.
- [40:22]
A
Stern mentioned that one of the earliest lawsuits to challenge last week's executive order was filed right here in Virginia. That case involves a pair of brothers who were born in Yemen and on their way to the United States where they would have been handed their green cards, but they had the misfortune of getting onto a plane such that they were, in fact, in the air Friday when the executive order was signed. Upon their landing at Dulles Airport, they were detained, put back on a plane, and shipped back to Ethiopia, where they had flown from, although I should note they are not from Ethiopia and were stuck in the airport for a long time. The Aziz brothers are being represented in their lawsuit by pro bono lawyers at Mayor Brown in tandem with Simon Sandoval Moshenburg. He's the legal director at the Legal Aid Justice Center's Immigrant Advocacy Program here in Virginia. Simon is on the phone with us now from his office in Northern Virginia, where he is scrambling to work on this litigation. Simon, thank you for taking the time, and welcome to Amicus.
- [41:21]
C
My pleasure.
- [41:22]
A
Simon, for folks who have not been following the, I think, dozen cases that have been filed, can you hone us in on your clients, the Aziz brothers, and what happened to them when they tried to enter the country in the wake of the executive order?
- [41:37]
C
At the time we filed the suit, all we knew is that they had landed on their Ethiopian Airlines flight, but they never made it onto their United Airlines connecting flight to Michigan. I was in touch with her father in Michigan. And we also knew that there were a great number of people who were being held back in the secondary inspection area, back in the back of Dulles Airport. As their lawyer, I called customs. Three different people at customs at Dulles Airport. We couldn't get any information whatsoever as to what was happening to them. So we sort of operated under the assumption that they were just among those group of people being held indefinitely in some back room in Dallas airport. So we filed a lawsuit initially on Saturday night at 8 o' clock under that assumption. We subsequently came to learn that that was, in fact, not true. Once they managed to finally get in touch, because they were held incommunicado when they were back in the back of Dulles Airport, they weren't allowed to use their phones. Once they were finally allowed to use their phones, we came to learn that, in fact, what had happened to them was even really more sort of horrific. They landed, they were immediately pulled off out of the group on the Jetway. They were taken into a back room. They were bullied into signing a piece of paper, relinquishing their quote, unquote, voluntarily giving up their visa, these visas that they'd worked for a year and a half to obtain. And they were put back on the next flight on Ethiopian Airlines, a grand total of two and a half hours in the United States, in Virginia.
- [43:15]
A
And tell me the names of the Aziz brothers and their ages, please.
- [43:20]
C
Their names are Tariq and Amar. They're 19 and 21. And the significance of the fact that the older brother is 21 is that he is now too old to essentially start from scratch. So under the ordinary course of things, once someone's visa is canceled, they have to start again from scratch. But the particular visa that they're under is for under 21 year old children of US citizens. Their father is a US citizen. So if the older brother were forced to start from scratch, he would no longer be eligible.
- [43:50]
A
And you told me when we spoke earlier this week, Simon, that the reason you wanted plaintiffs who looked like the Aziz brothers is because this was, I think your word was low hanging fruit. Right. These guys are eligible for green cards. Their dad is a US Citizen. These are not an ambiguous category. Right?
- [44:10]
C
Right. Well, people who are coming in on, for example, tourist visas or student visas or something of that nature, the government has at least a stronger argument that they have the discretion to grant or deny those visas as they see fit. And so therefore, once they've granted one they can sort of take it away in the same act as discretion. But for someone like this who's coming in on what's called an immigrant visa, which is very, very similar, functionally similar to a green card, there's really no discretion there. If they qualify, they qualify.
- [44:44]
A
Okay, let's walk through. You filed a motion. Judge Lena Brinkoma in the Eastern District of Virginia granted relief in a kind of limited way. She said no detentions at Dulles. These people get to see lawyers. That was the extent of her order on Saturday.
- [45:05]
C
That's right. Although to be quite honest, the reason that she entered that order is because we were all operating under an incorrect set of facts, which is that they were still back there in some back room in Dulles Airport, because that's sort of the best information we had at the time. By the following morning, we'd learned that in fact, really the problem of these two individuals was not that they were put into some sort of indefinite detention. The problem with these two individuals is that they were coerced into signing away their visas and then sent away.
- [45:36]
A
So you filed an amended complaint saying, okay, wait, these are the real facts. What relief are you seeking now?
- [45:44]
C
Well, the relief that we're seeking is on behalf of them. And 60 John does and 60 is really just a guess here based on sort of anecdotal stories. Were seeking the relief of UN Canceling their cancelled immigrant visas. UN Cancel their visas, Bring them back in, basically unwind what happened to them on Saturday morning.
- [46:08]
A
And is this simply an injunction or has it expanded into a challenge on the constitutional merits of the executive order?
- [46:18]
C
Well, we have a number of reasons why we consider that what happened to them on Saturday morning was illegal.
- [46:25]
E
Right.
- [46:27]
C
In my opinion, it would have been illegal even if it happened two months ago under the Obama administration as some sort of fluke happening to them. The fact that it happened as a result of this executive order, which is also 17 times illegal and unconstitutional, is obviously arguments that we're making. But we also have arguments that don't even require the judge to find that the entire executive order is unconscious constitutional in order to grant relief to our particular class, that is to say, people who had their visas canceled, I mean, if you look at the nine page executive order, even if you assume it's legal, which of course I think it isn't, nowhere does it say visas will be canceled. All it says is essentially you can't use those visas for 90 days. So even pursuant to just the very terms of the executive order, what they should have done to these Two kids is tell them, I'm sorry, you know, you can't come in today. Come back in 91 days, not cancel their visas that they spent a year and a half trying to get, and send them back to square zero.
- [47:34]
A
And as of this conversation. Simon, where are the Aziz brothers now? At last we spoke, they were hanging out in Addis at the airport. Where are they now?
- [47:42]
C
Yeah, the Ethiopian authorities. There was a bunch of folks hanging out in the Addis airport. Apparently, Ethiopian Airlines is a major carrier from that region. But the Ethiopian authorities ultimately got tired of seeing them and sort of kicked that can further down the road. And so now they're in Djibouti. As best I understand, about half of Yemen is in Djibouti these days.
- [48:03]
A
And what are they doing? Are they in the Djibouti airport? Camp down?
- [48:07]
C
No. Fortunately, Djibouti lets Yemenis in, gives them a visa, and so they are able to leave the airport. Airport. You know, they're at a motel. At least they managed to get a shower and a decent meal.
- [48:20]
A
Simon, can you help us on the merits of a problem that we are all in the press trying to clarify, which is there has been a claim, and I think you've made the claim, that even in the wake of Judge Donnelly's order in New York, even in the wake of Judge Brinkoma's order in your case, Customs and Border Protection officers are declining to comply. They say we're compliant. What's going on?
- [48:49]
C
Well, I can't speak to the New York order, but with regards to the Virginia order, there's no doubt in my mind that they were not complying on Saturday night. The order was entered at 9:20. At that time, at 9:20pm at that time, there were still dozens of people being held back in secondary inspection in back rooms in Dallas Airport. And the order specifically stated that they were to be granted access to counsel. And there were at least 50 pro bono lawyers basically right on the other side of the security doors, ready and willing to give them free legal advice and representation. We spent the next three hours trying to burning up our Rolodexes. And I was talking to folks who have some really thick Rolodex, you know, trying to get someone at the Justice Department, someone at the Department of Homeland Security to essentially take our calls, right? And no one was picking up, and no one was taking our calls. I was not on the scene at Dulles Airport. You know, I was back in my. Someone's got to stay back in the office to actually write the darn lawsuit. But There were plenty of folks on the scene who I was in direct contact with by phone, including but not limited to Senator Cory Booker, who were trying to, you know, hand serve paper copies of the TRO on cbp. And CBP was not even coming out from their office or letting anyone into their office. And instead, CBP was essentially using the local airport police as intermediaries to say, you know, go away. The great odds will not see you today.
- [50:33]
A
And effective today, Simon, when they simply say, we're now compliant because we shipped everyone home, so you have no claim against us, what's your answer to that?
- [50:43]
C
Well, it's clear to me that the TRO was violated on Saturday night. Starting on Sunday morning, they started taking some steps towards compliance. My personal opinion is that there was not full compliance at any point. You do have to remember, though, that the TRO that Judge Brinkoma entered in Virginia only applies to lawful permanent residents, folks with green cards. And when the ban was first put into place, it explicitly included those folks. And, you know, I think as a result of the four TROs that were entered on Saturday night, by Sunday afternoon, DHS Secretary Kelly issued a memo essentially walking back that part of the ban. So really, what we have, the situation as of right now is that folks, and I should clarify here, folks returning to the United States on green cards are getting in. They're dealing with lengthy delays. They're missing their connecting flights. They're getting interrogated. They're getting big hassles, but they're getting in. And other folks are simply not being allowed to get on planes. So the situation at international arrivals at the airports is not as dire and chaotic as it was on Saturday and Sunday.
- [51:59]
A
But it's not dire because rather than holding people in detention, they're just not allowing them into the country.
- [52:05]
D
Right.
- [52:06]
A
I mean, the problem isn't cured. It's just we block it at an earlier stage. Correct?
- [52:11]
C
Exactly. People landing on Saturday had mostly taken off before the executive executive order was even signed. You know, and then, of course, it took the airlines. The airlines didn't know, just like the rest of us. The airlines had no advance notice of this. So it's not like they were able to put it into effect immediately. So there were plenty of people still landing on Sunday, but really by Monday, for the most part, the problem had sort of shifted to the international airports where people were simply being denied boarding.
- [52:37]
A
Simon, you have a hearing scheduled. You and I are speaking on Thursday. By the time folks, listen. Listen to this. It will be Friday. What is the issue for the Friday hearing, please.
- [52:49]
C
Well, the Commonwealth of Virginia has moved to join the case as plaintiffs. And this is very interesting. They're not sort of only doing it in their general parents patrii power, which means, you know, as the state of Virginia, we have to take care of all Virginians and there are Virginians who are affected by this. And so we want to be part of this lawsuit. And they're not doing it in sort of an amicus role, which is saying basically, we agree on the law, that the plaintiffs are right here. They are saying specifically that the Commonwealth of Virginia as an entity is being harmed by this. And the specific harm that they're pointing to are the state universities. They're saying, we have professors who can't come back to teach classes. We have students who can't come back to take classes. We have researchers who can't come back to do their research. They're saying because we are losing students, we're actually losing money as a state. They're not actually citing to Texas, the US for that principle. But it really reminded me of the argument that Texas made in the case against dapa, saying this federal government action is causing us to lose money and therefore we have standing. So the State of Virginia is moving to intervene as a plaintiff, and that's going to be heard on this Friday morning. There's also just one more private party, another human being individual who is affected that's also moving to intervene as a plaintiff.
- [54:10]
A
And can you tell us briefly what their story is?
- [54:13]
C
She is someone who was coming in on what's called a fiance visa, which is, you know, this 90 day fiance visa that lets you come in and then gives you 90 days to get married to your US citizen betrothed and then you can file for a green card after that. After that, marriage.
- [54:30]
A
And she was. Where is she now?
- [54:33]
C
I don't know exactly what country or airport she's in right now, but she landed at the exact same time as the Aziz brothers on a flight from Doha and was subject to the exact same treatment. She was bullied into signing away a piece of paper that she had no idea what it even meant. They canceled her visa that she worked so long to obtain, and they just stuck her right back on the same plane she'd gotten off of.
- [54:55]
A
Can you unpack what you mean when you say that folks are being bullied into signing away their legal rights to their immigration documents? I mean, that's a pretty stark characterization.
- [55:08]
C
So there is an official U.S. government form or various U.S. government form, depending on what kind of visa it is that you can use to say, thank you, but I don't want this visa anymore, or even a green card. Dear government, thank you for my green card, but I don't want it anymore. I'm not going to live in the US Anymore. That form has language right above the signature part that says, I understand what this means. I knowingly and willingly consent to turning back in my green card, as it were. So in this case, what these brothers were told is basically sign this form or we're going to kick you out anyway and you're going to be legally barred for five years from entering the United States. That was, in our opinion, simply not true. Right. There was no legal grounds whatsoever to do that. So to the extent that they signed this form, they certainly didn't do it with any knowledge of sort of the true facts, the legal consequences, et cetera, et cetera. Meanwhile, again, the reason that the Border Patrol agents were able to bully them into signing this form is precisely because they were denying them access to the lawyers that were standing right on the other side of the security door, ready and willing to give them advice. And probably the first thing those lawyers would have told them is don't sign that form. So if they'd gotten access to the lawyers that were there to speak with them, they never would have signed the form.
- [56:34]
A
Simon, I want to give you a chance to have the last word here on the merits, in your view. I know that we're going to hear Justice Department lawyers saying this is completely constitutional. It's in perfect alignment with what President Obama himself has done. What's your sort of last word on why, in your view, these executive orders, beyond just your clients, are unconstitutional and illegal?
- [56:59]
C
I mean, the issue of religious animus is pretty clear and undeniable, I got to tell you. My fear is that he's going to add some non Muslim countries just to try to provide evidence that it's not based on religious animus. But even beyond that, even if you were to put forward an order that says, for example, for X period of time, certain people are not going to be allowed to enter the United States, there's due process issues. Due process says you can't apply that order to someone who hasn't had a notice, an opportunity to be heard about it again, in the case of my clients, they didn't have the opportunity to do anything about it because they were already in the air by the time the order was signed.
- [57:44]
A
Simon Sandoval Moshenburg is the legal director of the Legal Aid Justice Center's Immigration Advocacy Program. He, in tandem with lawyers at Mayor Brown, filed one of the very first lawsuits after the executive order came down. He is on skates and we appreciate his time. Thank you, Simon so much for joining us today on Amicus.
- [58:03]
C
It was a pleasure.
- [58:09]
A
And that is going to do it for this week's episode of Amicus. As always, we look forward to hearing your thoughts and questions. The entire Jurisprudence team here at Slate is digging in for what we imagine is going to be a long haul and we really value your feedback and thoughts and letters along the way. Email us@amicuslate.com or leave a comment@facebook.com Amicus Podcast and if you want to help folks find out about the show, please be so kind as to leave us a short review on our page in the iTunes store. If you have missed any of our past episodes, you can find them all on the show page, slate.comamicus and if you're a Slate+ member, you can also find our show transcripts there. If you're not, sign up for a free trial membership@slate.com amicusplus when you do, note the transcripts take a few days to post. Amicus is produced by Tony Field. We had a ton of help this week from our shiny brand new intern, Camille Mott. Our executive producer is Steve Lichti. Chief Content officer of Panoply is Andy Bowers. Amicus is part of the Panoply Network. Check out our entire roster of podcasts@itunes.com Panoply I'm Dahlia Lithwaite. We'll be back with you in a couple of weeks weeks with another edition of Amicus.