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Bulwark on Sunday: Trump Said He Was Targeting Criminals In Migrant Sweeps. That’s Not What’s Happening.
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- [00:00]
Bill Kristol
Hi, Bill Kristol here. Thanks for joining us at Bulwark on Sunday. Very pleased to be joined today by Aaron Reichland Melnick, a leading expert on immigration law and policy, senior fellow at the American Immigration Council, the person I call when I need some guidance, which I often need in the complexities of what the heck's going on on immigration policy and law and what you want to think about these things. So Aaron's going to explain everything to us here in 40 minutes today in this 60 days into the Trump administration. Aaron, thanks for thanks for joining me.
- [00:31]
Aaron Reichland Melnick
Yeah, thanks for having me.
- [00:33]
Bill Kristol
So we're 60 days in. This is their top, one of their top priority issues, maybe their top priority issues immigration. There's been a lot of sound and thunder and action, but let's just step back first, just for a couple of minutes. I mean, where are we really? I mean, what's your general judgment of what they have done, what they haven't done? What surprises you that they have they gone faster than you expected, not quite as fast, etc.
- [00:59]
Aaron Reichland Melnick
Well, before the administration took office, what we had said was that they are not going to be able to carry out their mass deportation agenda immediately. And we were right about that. The administration has significantly ramped up its enforcement, arresting thousands of people across the country in highly publicized raids. But they are nowhere near the millions of people deported that they suggested they might be able to do for the basic fundamental resource and legal limitations that we all indicated they'd have to get around. But what I think people didn't anticipate is the speed at which they move on some of these and the ways in which they would transform every single law enforcement agency in the country into an arm of the immigration enforcement agenda. And the ways in which immigration enforcement and rounding up undocumented migrants in the country has been pretty much priority number one for this administration beyond its dismantling of the administrative state in general and the ways in which they have taken plenty of other federal agencies, many of which have nothing to do with immigration, and said you guys have to come and join this. Doesn't care what else you're doing, doesn't care what other important law enforcement objectives you have. Now you're here and helping us out with deport deportations.
- [02:11]
Bill Kristol
Yeah. Say a word. More about so interesting about about both the degree to which they're making it the priority not just for the Department of Homeland Security and ICE and so forth, but for the whole federal government and I guess to some degree for state and local law enforcement and also the kind Of. How should I put this? Attitude is not quite the right word. But the. The. The attitude. I'll say it anyway. The attitude. The. The sort of what they're trying to tell people about immigration as opposed to whether they have the administrative capacity to get rid of, you know, 4,000 or 40,000 people tomorrow. Because I'm very struck by the kind of the UN what you might say from a strictly immigration policy point of view, they're doing things they don't have to do. They're doing things that. In ways that are more problematic than they need to be. They're picking fights that seem silly almost, given the numbers we're talking about. Or why do they care if they deport someone to El Salvador two weeks from now, as opposed to today? They're in detention anyway, these gang members and so forth. So say a word about the. In that respect, the overall effort.
- [03:10]
Aaron Reichland Melnick
Yeah, this is indiscriminate enforcement. The administration, of course, tries to claim that who they're going after are the worst of the worst, the criminals and everything, but when you actually look at who they are subjecting these policies to, that's just not true. One great example of this, one of the Venezuelan men that they sent to Guantanamo Bay in a flight of people that he said was the worst of the worst. He had a single criminal record, small bit of criminal history in the United States. He had a ticket for bicycling on the wrong side of a road. That's it. That was his criminal record. He rode a bicycle on the wrong side of the road. And because he was Venezuelan and because he was in detention and they needed some bodies to get on a flight to Guantanamo Bay to fill out for the cameras, he ended up being sent to Gitmo with that only being the only thing on his criminal record. And so that's a good example of the ways in which the administration is really going for spectacle over effectiveness. Because, of course, when these stories come out and when federal judges look at the legal justification and when, you know, the government says judge, you know, we have to do this. These are the worst of the worst. The judge can look at that and go, who are you kidding? It's obviously not. You're obviously just doing this for pr. And Guantanamo is a great example of this. Currently, Guantanamo Bay is empty. They sent a couple hundred people there and then ended up deporting some of them to Venezuela via Honduras. And others still they've brought back into the country because it was enormously expensive and because the facilities there were clearly inadequate. But they'd gotten their videos. They'd gotten Pete Hegseth's visit there. They'd gotten the, the horrific, like, ASMR video that the White House put out showing, like, people being shackled and the sounds of the chains as they were walking along. And again, one of those people was somebody whose only criminal offense was biking on the wrong side of the road. So I think that is really exemplifies the administration's efforts here. Get the numbers up as high as they can, get the splashy raids in front of the cameras, keep the narrative control, even if they're not hitting the numbers they want to, because, of course, the basic resource issues are still there. And the reality is that people do have rights under the law. They can challenge their removal. And a lot of what the Trump administration is doing while running roughshod over the law is being blocked in court. And, you know, people still do have rights to go in front of an immigration judge and say, hey, I'm seeking asylum. I've got some rights here. I have opportunities to stay.
- [05:35]
Bill Kristol
But am I wrong to think that in addition to the spectacle side of it, which I think is extremely important for them, political as part of their overall political agenda, there's also the, I'm going to say, I don't know, the, the corroding of the legal limitations side of it. And as they seem to me, as a layman and an expert in this field, to be going out of their way to invoke laws that have almost never been used. You know, that 1950, 1952 law that they used to deport Khalil, the Alien Enemies act, which I don't think they needed to have to arrest a bunch of gang members who were, or to detain a bunch of gang members who were here and hold them and then deport them if they are truly gang members. So they seem to want to not just convey the impression, but create a kind of new reality where the president has almost unlimited and unchecked authority in this area. And maybe he not, you know, there's a kind of, there's a nod at some law on the books from 1952 or 1798, but then they also revert. I think you and I were talking before the show about listening to the legal case before Judge Boasberg yesterday. They also then just sort of say, oh, well, anyway, it's all Article 2. The President just has this inherent power. I mean, I'm very struck by that. Am I, am I, am I right about that?
- [06:50]
Aaron Reichland Melnick
You are. And I think this is a really indicative of the ways in which this administration sees immigration and migration as this existential threat to the United States. And they want everyone else to believe that, too. So what they are doing is they are mining what I've called in the past the hidden weapons of immigration law. Immigration law is a hodgepodge of laws passed over the last 125 years. And some of those laws were passed during very different eras of the United States, eras of ideological exclusion, eras where we tried to kick out anybody who didn't go along with the Great American Way. And those laws oftentimes are still sitting on the books, having not been touched in generations, and may nevertheless be unconstitutional under the current understanding of the First Amendment. As you look at, the law used against Mr. Khalil is a great example of that. But the administration is saying, we're just saying the laws on the books, we can enforce it. And another good example of this is a law that the Trump administration has invoked from World War II that requires every non citizen in the country to register with the government. Now, what they have done, you know, into the past, an undocumented immigrant who came across the border was technically in violation of that law, but they actually couldn't follow it. There was no general process for a person in the United States illegally to come forward and register themselves. And so now the Trump administration has dusted off this old statute and said, we are now setting up a new process where not only where every person has to register again, technically already on the books, but has largely been unenforced since World War II. And what they have said is, we have this new process, and every undocumented immigrant in the country who isn't already on our radar must come forward and register themselves to be fingerprinted. And if they don't register now, they're not just potentially deportable for being undocumented now, they've committed a federal crime because knowingly failing to register is a federal misdemeanor punishable by up to six months in jail. So they are taking these efforts to find every tiny little bit of law that's been sitting around on the books, no matter how old, no matter how draconian, and saying we are enforcing these laws. And that is a challenge because a lot of people have not thought about these laws, again, World War II era, or in this case, Revolutionary War era, for the Alien Enemies act laws that are sitting around waiting to be dusted off for somebody with sufficient, you know, cruelty and desire to send a message of fear through these communities. And, you know, I think that that last bit is also very important here because regardless of what the legal authorization is behind these things, whether it's legal or not, and some of these things may be legal, some of them may be not, but the message it is sending is we will hunt you down and we will make you afraid and you should self deport. And I think the administration knows it doesn't have the manpower to deport 13 million people, but it wants to make their lives hell so that they choose to leave on their own. And it wants to make their communities afraid and people to stay home until eventually they say, enough is enough. I give up. I'm going back to a country maybe I haven't been to in 30 years.
- [09:56]
Bill Kristol
Yeah, that part's important. It's not just that they're appealing to their base and, you know, sort of doing sort of electoral politics, it's also that they do think they can, I guess, get people to leave and certainly stop people from coming. If they make it fear. Fear. If they make it fearsome enough. Is that a word? If they make it unpleasant enough and hostile enough. Environment. I think you've used that term, hostile environment, and that seems to be sort of across the board. Am I wrong about that? I mean, it's. But, you know, for both that, you know, asylum seekers and people coming across the border and people just trying to come in legally, you know, in the, in the, quote, normal way of, you know, you apply for whatever green card and so forth, you have a job offer, it just seems like, am I. I mean, I'd be worth maybe walking through the different elements of the border, the legal immigrants. And then the way they're treating people who've been here for 15 years, just the degree to which they want this to be a host, a nation that's hostile to immigrants.
- [10:52]
Aaron Reichland Melnick
Yeah. And, you know, I've said for years that the only way to really stop migration at the southern border in particular, is to eliminate the view that people have in their minds of the United States, as you know, to paraphrase Ronald Reagan, the shining city on the hill, the beacon light of freedom. And when you talk to migrants, as I've talked to many migrants over the years, especially at the southern border, that is the vision they have of the United States in their mind, a place of freedom and safety and prosperity. So the Trump administration is effectively setting out to destroy that image in people's minds. And, you know, I don't think that's a good idea. I don't think we want the rest of the world to think of us as fortress America, hostile to the foreigner and a place where freedom, where you won't find freedom, where you won't find safety, where you won't find prosperity unless.
- [11:38]
Bill Kristol
You'Re a native born American, you know, maybe unless you're two or three generations of native born, actually.
- [11:44]
Aaron Reichland Melnick
Yeah. And of course, you know, as a native born American myself, who can trace my descent back to the, you know, 1630s on one side of the family, you know, I think, I don't think even Americans want to. I don't want to be part of Fortress America. I don't want to be seen as, you know, those, those people who are so scared of the rest of the world that we have to block ourselves off and, you know, set up roadblocks inside the United States to weed out those who would undermine us from between. And that's a police state, you know, that's a police state. Sure. If you think that we need a police state because our lives are full of crime and we need to crack down on everything, you're welcome to have that, but that's not freedom. You know, police states are not free. Even if maybe, just maybe, they have fewer undocumented immigrants.
- [12:28]
Bill Kristol
I mean, or at best, I guess one could say I'll make a rare intervention in their defense. At best, what you're doing is creating Switzerland. I don't even know if that's really Switzerland, but let's say the cartoon image of Switzerland, you know, hostile to immigrants and doesn't make it easy to immigrate and very much proud of their own, you know, history. But the US has not traditionally thought of itself as a Switzerland. Right. I mean, this is the opposite.
- [12:50]
Aaron Reichland Melnick
This is.
- [12:51]
Bill Kristol
Yeah. That's why we have 330 million people, you know, and of, you know, compared to whatever we had at the beginning and why Switzerland probably hasn't had the same rate of expansion.
- [13:03]
Aaron Reichland Melnick
Yeah. And so what we've seen at the southern border at least, is the Trump administration really trying to do this, you know, sending the message the border is closed and it's having an effect. I don't think there's any way to deny it. Border apprehensions right now are at levels not seen since the late 1960s, early 1970s levels, despite what the Trump administration claims. Low. Low. Quite low.
- [13:22]
Bill Kristol
Because people aren't trying to come.
- [13:24]
Aaron Reichland Melnick
Yeah. And we saw something like this in Trump's first term. April 2017 hit the lowest level of border apprehension since 1972. And that wasn't because Trump had changed anything. It's because everybody had seen his campaign rhetoric and said, we want to wait and see what this guy's doing. So now we are having both that effect of people saying, we want to see what these guys doing, and the reality that they have essentially erased all immigration law that would provide a person an opportunity to seek protection in the United States. You know, like, I don't want to be sanguine about this, is the reality is asylum is dead at the southern border. If you want to seek asylum at the southern border, you cannot. It does not matter if you go to a port of entry and you ask the CBP officer politely. It does not matter if you cross the border illegally and immediately turn yourself into a Border Patrol agent. They are denying 100% of people's opportunity to seek asylum. Well, maybe 99.9. There's always an exception here and there. But the reality is asylum is functionally dead.
- [14:25]
Bill Kristol
And how long is the right to at least apply? Obviously, you don't get it always for asylum been a key part of American law and practice.
- [14:33]
Aaron Reichland Melnick
I mean, this is overturning since 1980. So for the last 45 years, it has been enshrined in US law that a person who comes to the border can seek asylum.
- [14:42]
Bill Kristol
And that law, of course, doesn't mean.
- [14:43]
Aaron Reichland Melnick
They'Re going to win asylum. That law is still on the books. But the Trump administration, President Trump in particular, has asserted a breathtaking power. He says inherently, under the Constitution, he can simply ignore every right in the Immigration and Nationality act and deny any people access to these protections. Now, I will note, you know, this is an argument that his own DOJ rejected in his first term, because in his first term, he tried to invoke similar legal authorities to block people from seeking asylum. And his own DOJ said those legal authorities have limits. Now he's coming in on his second term and saying those limits don't exist. So in the court cases around this, it's a pretty staggering, unusual circumstance where you have essentially, Trump's own words from his first term being used against him in his second term. And that is an ongoing legal battle that will eventually lead to a court case that could make its way quite high in the appeals process.
- [15:38]
Bill Kristol
But for now, no one coming across the border, no asylum. How about legal? You know, let's say traditional. I'm sure I'm using the term wrong. But legal immigration, do you apply for a visa or you're engaged to marry an American citizen or something like that? Has that also been curtailed?
- [15:57]
Aaron Reichland Melnick
So far, there haven't been significant major changes to the legal immigration system. But this so far is really important here because reporting is that in the next few days, the Trump administration is going to issue a new version of its travel bans from the first time around. And for those who don't remember, in 2017, President Trump tried what was. It was called the Muslim ban. The first two versions of this were struck down in court, and the Supreme Court, you know, upheld those. Those blocks. And the third version, which was allowed only after they went through a pretty extensive, like national security vetting process to identify certain countries. And they had a fig leaf where they said, look, these are the countries that do not perfectly share information with us about their res, therefore, we think we're going to block them on national security grounds. And the Supreme Court said that is legal. So a new leaked reporting suggests that the Trump administration is now coming back with a much broader ban that could apply to as many as one in five people seeking to legally immigrate to the United States. It could cover countries that were not covered the first time around, like Cuba and Venezuela. Venezuela, the first time was targeted only for government officials. Now it would be every single person from Venezuela, and it could cover dozens of countries rather than just 11 or so countries before, with varying degrees of restrictions. So the legal immigration system is on the precipice of major shutdowns, with entire countries, nationals being kicked out or not kicked out, being denied entry, and whether.
- [17:27]
Bill Kristol
They'Re beyond that, whether they're hostile to the governments of those countries, as in the case of Cuba and Venezuela, or whether they're not. Right. I mean, this isn't. I mean. Yeah, the notion that we are refuge for people fleeing Venezuela ends under this, if this leak is correct.
- [17:47]
Aaron Reichland Melnick
Yeah. And, you know, this. This I didn't even mention at the start. He's already shut down the U.S. refugee resettlement program, which is a way for people who are adjudicated as refugees outside of the country. Different from asylum. You know, asylum, you have to come to the United States and then seek protection with refugee. You get processed outside the country. You go through all the vetting and the background checks outside the country, then you come in. So that program has been effectively shut down. There's a court order that's supposed to overturn that and some allegations of violations of that court order that's currently being fought in court. But we're talking about people seeking to come here through families, people married to US Citizens, children of US Citizens, parents of US Citizens, people who have jobs here, people who are coming on work visas. This is, you know, when it comes to Cuba and Venezuela, a total shutdown, seemingly, of all immigration from those countries. Which means, you know, if you are a Cuban American and you want to bring your wife here, who's Cuban, you're going to be told, no, you're not allowed to do that. If you want, if you want to live with your wife, go live in Cuba, go live somewhere else. And like with the first travel ban, these are nationality based, so these could be people who actually were never born, never even in those countries. Because in the first travel ban, it covered some people who had citizenship from a certain nation but hadn't been born there. They derived that nationality from their parents, and yet they were still blocked, even if they'd never set foot in the country that was supposedly the threat to the United States because this was just purely nationality based. And so that's coming. That's going to really impact the legal immigration system significantly. And beyond that, you know, the new administration is already in the process of throwing up red tape and obstacles to slow down legal immigration for everybody else.
- [19:26]
Bill Kristol
Well, so legal immigration curtailed, to say the least. Some things that used to exist. Asylum and refugee basically shut down. Let's turn to the, I guess the interior of the country, as they say. There are people who are here legally, whether they have green cards, like Mr. Khalil, I suppose, or whether they're on temporary protected status. They're registered, the government knows who they are, they've gone through the paperwork. They might have paid, I think, is it 500 bucks for, you know, your. If you're on temporary protected status and so forth, you work, you pay Social Security if you work, I believe. And so there's that category of people, and then there's the undocumented. So why don't you walk us through each of those?
- [20:05]
Aaron Reichland Melnick
Yeah. So, you know, let's start with people who have status, because as I mentioned at the start, you know, actually carrying out mass deportation, as everybody acknowledges, is harder than they claimed. And they haven't hit their numbers there yet, even though they are significantly ramping up enforcement higher than the previous administration. But the biggest impact that they've had so far is efforts to strip people who are here with status of their legal status. And the big ones are temporary protected status and humanitarian parole. So far, the Trump administration has indicated that it wants to strip at least 1.1 million people of Temporary Protected Status, about 600,000 Venezuelans and about 500,000 Haitians. These are people who are legally in the country right now. They have legal permission to be here. The secretary Mayorkas, the former administration's DHS secretary, signed an order stating that the conditions in their country are such under the law that it would be unjust to return them to their home countries and said, you have legal permission to remain for 18 months. Now, the Trump administration is trying to reverse that.
- [21:07]
Bill Kristol
They can.
- [21:08]
Aaron Reichland Melnick
They can. Yep. And now they have to pass a background check. Any person who has any criminal record is barred from temporary protected status. It's actually quite strict. And so these are people who have gone through some background check. And, yes, that is acknowledging that there are some issues with accessing criminal history in their home, in Venezuela, in particular, the home country. But, you know, they're checking any databases to see if they've done anything here in the United States. And so any person who's done anything illegal in the United States is not eligible for Temporary Protected State status. And the Trump administration is moving to strip 1.1 million of them of legal status and potentially several hundred thousand other people who have humanitarian parole who entered during the Biden administration, including potentially 200,000 Ukrainians who came here after the war began in 2022. So these are people who are legally working, legally living here, following the rules, not doing anything wrong, and they are all going to be essentially rendered deportable overnight, lose their permission to work here legally in an effort to get them to essentially go home. So the biggest thing Trump might do in these first few months is make the undocumented population more than a million larger than it already is.
- [22:23]
Bill Kristol
And the point of that is to get. Is to make it easy to deport them. I mean, or force them to self deport, as opposed to.
- [22:31]
Aaron Reichland Melnick
It is to. It is to force. Is to sort of force people to self deport and to make it so that they can legally deport these people who they don't think should have been in the country in the first place. And Again, this includes 200,000 Ukrainians who came here on a promise by the Biden administration that was supported by Congress here and said, you will get to stay here legally while the war is ongoing. This is the thing that countries around the world have done. Countries in Europe have done this. Canada has done this. Many other countries have offered programs for Ukrainians fleeing the war, but none of them have decided to unilaterally terminate them while the war is still ongoing. And these are included in the people the Trump administration is targeting because they simply want to say, if you entered under Biden under these supposedly overly liberal policies, we just want to kick you out. Who cares how inhumane that is, who cares how many businesses are going to be impacted? Who cares how that's going to impact your US Families and friends and everything that you've made when we get here, we just want you out. And in the short term, that could be the biggest impact the Trump administration has on the immigrant population in the country is essentially stripping a million people of legal status.
- [23:43]
Bill Kristol
It's really extraordinary.
- [23:44]
Aaron Reichland Melnick
And it just adds to this general hostile environment.
- [23:46]
Bill Kristol
Right. I mean, I've been in Europe Some in 2023 talking about Ukraine to people. And one of the things I would ask a different in Berlin and Prague was how many Ukrainians there were were there. And in fact I met Ukrainians there. And there are a lot, I think, if I'm not mistaken, half a million in the Czech Republic and more in Germany. I think 500, 000 Berlin alone. I might be wrong about that, but I think many, many hundreds of thousands. And in Germany and they're not, as you say, they're not kicking them out. And so these countries that don't have a history of being wildly receptive, you might say, to immigrants necessary and are much smaller than we are and have probably higher unemployment rates and more reason to be worried are I don't even think it's occurred to them that they should be kicking these people out. And in fact, they seem to be doing pretty well, the Ukrainians, as I think they're doing here. Incidentally, I haven't seen a lot of press about how terrible it is to have 200,000 Ukrainians. You're in America, you know, so that is just, I mean, that is kind of way. One of the clearest examples seems to me of the just, we do not want foreigners here in this country. That's kind of right.
- [24:47]
Aaron Reichland Melnick
I mean, yeah. And this is, you know, Stephen Miller, of course, infamously said of the refugee resettlement program, like he said, like ending it was the only thing he's got in life. This is before he got married. You know, these are an administration that, despite what they occasionally say about legal immigration, is clearly aiming to curtail it. They want fewer immigrants here. And this sort of nativist view of that is a zero sum view of the world. You know, if foreigners are benefiting, Americans are hurting, and that's not right. You know, if you look at the economic literature, you see that that's simply not true. A rising tide can lift all boats. And immigration has proven very important for the United States. Of course, without immigration, our labor force is going to start shrinking pretty quickly. And nevertheless, this administration really does want to curtail immigration overall. And that is not just so called illegal immigrants. It is also legal immigration. And as we're seeing here, legal immigration is likely going to fall under this administration as it did the last time around, but potentially more precipitously given the sweeping bans that are set to go into effect at some point in the next couple of weeks.
- [26:01]
Bill Kristol
And those bans will be legal to just remove temporary protected status from people or the humanitarian parole.
- [26:08]
Aaron Reichland Melnick
Well, so temporary protected status. There is a couple of court cases around here and this is actually a good example of how the Trump administration is moving fast and not moving smart. There is a pretty clear way under the law to terminate temporary protected status. You know, when 60 days before the status is set to expire, the DHS secretary has to issue a finding saying, I don't believe that it is necessary to keep this process in place. And then it expires, you know, at the date it's supposed to expire. That's the easy legal way to go about it. And that's actually the way the Trump admin tried to go about it the first time around. In fact, the first time around, they even gave Everybody an additional 18 month, one final extension to get their affairs in order because that was going to be more defensible in court. They were going to have an easier time making a moral case for it and saying, like, look, we're not just doing this. Suddenly you've got a year and a half to figure out what your next steps are. That's not what the administration is doing this time around. This time around they're saying Secretary Noem is saying I get to reach back in time and undo what Secretary Mayorkas did and declare that his extensions of tps. I'm just going to overturn them and say I'm going to use my inherent authority to overturn these.
- [27:18]
Bill Kristol
As of now, that is.
- [27:20]
Aaron Reichland Melnick
Yeah, that's what's happening now. And so as of immediately, as opposed.
- [27:23]
Bill Kristol
To when it ends at the end of the 18 months, this isn't just the end of your 18 months.
- [27:28]
Aaron Reichland Melnick
They've moved the date up. So they moved the date up for Haitians, they moved the date up from February 2026 to fall 2025. For Venezuelans, they moved it from late 2026 to, for about 350,000 of them to April 3rd. So there is an upcoming date in two weeks. Really, where 350,000 people might lose their status on a single day. And that is unlawful. The statute is actually very clear. The law says you can only terminate TPS at the time, no earlier than when it expires. Because of course Congress, when it understood it created the status, it didn't want to just let anyone willy nilly end it randomly. So once it's designated, you have 18 months and the government says you have 18 months and they can't suddenly come back and say, nope, we've changed our mind, you only get three weeks. So the law is pretty clear here. But because this administration wants to move fast and break things, they are not following that. They've invented a brand new legal theory that says actually they can just ignore that and terminate it whenever they feel like it. And because of that, it makes their argument, I think, a lot less defensible in court. There will be a court hearing next week or, sorry, in like a week and a half on this case and we may get a court order blocking tbs. But when it comes to the travel ban and restricting new people coming in, that's another one where we're going to have lawsuits filed over it. And I don't want to predict how it the Supreme Court blessed it the first time around. It's unclear if they're going to bless it a second time around if it's twice as big. That remains to be seen. But regardless, they are not moving in the way that you would think an administration would move if they want to win court battles. They're moving in a way to sort of send this maximum shock and awe message when it comes to legal immigration. And it's having the message. There's a lot of suggestions that fewer people are going to travel to the United States or seek visas. You know, if this is the way the immigration system is working. Our immigration system in the US was already pretty messed up, pretty slow, expensive, so people wouldn't necessarily want to do it, but now it's even worse. So I think we're going to lose a lot of the world's best and brightest and a lot of people are going to say, I don't trust this country, I don't want to come here.
- [29:36]
Bill Kristol
And less important than the, I think actually, you know, welcoming immigrants who will help us a lot in various ways just on the visa. Since you mentioned visas, I personally know people have touched, know people who know people. I'd say I've heard firsthand stories of people saying, I don't know if I want to even go out for my, you know, week in New York, you know, this summer and go, you know, and as a, as a tourist, I mean, that is to say, I mean Again, it's not. It's not of the same gravity as expelling people who have. Who are fleeing persecution and so forth. But it's not trivial to the economy of the US to have tourists from other countries. And I do wonder if you're. You read these stories and say a word about them, if you would, of. Really tourists. People who come here for some hiking expeditions. Someone else who came. I can't remember what it was in Logan Airport, some German, some tourists. Or I think it was tourists. Not a. But a green. Maybe it was a green card holder. I can't remember. But anyway, the varieties of people who've shown up here for utterly routine reasons with, I think, no reason for us to think they're gonna cheat and game the system and try to stay here and stuff. There are people who've been here on vacation 10 times and they're coming for their 11th vacation, basically. If you know, that's. I'm making up that number. But it's sort of like that. People like that. Right. And they're suddenly being told that, you know, in Boston or. Or other airports, not sorry or at least we're going to hold you for a day or I guess one or two cases a week or something and kind of humiliate you and think about sending you back and not tell your relatives or your embassy where you are. I just. I find that kind of extraordinary. And I think that will have some effect on the general willingness of people just to come here on vacation.
- [31:08]
Aaron Reichland Melnick
Yeah, I mean, what I can say about these is that, you know, it's important to understand immigration law is incredibly complicated and it's incredibly draconian. There's a lot of rules you have to follow, and there's a lot of pitfalls even for the average person. For example, if you're coming here on a tourist visa, it's illegal for you to work here. You are not allowed to do any work. You're here just to be here as a tourist. But in an era of remote work, a lot of people maybe stretch those rules a little bit. And like any kind of law enforcement system, it's important to have some slack. But the message that CBP at the ports of entry seems to have received is slack is over. Enforce these laws as harshly as you can, even if it really doesn't seem to make sense to throw a tourist from Germany in jail. And, you know, this is unfortunately what we are seeing here, you know, so it's hard to point to any specific incident and like, draw a direct line from you know that person's actions to anything the Trump administration did. But it certainly seems, at least anecdotally, that border agents are getting harsher and that they are cutting people less slack and that they are rigorously enforcing some policies that again, on their face, it makes sense to have these policies, but maybe it doesn't make sense to enforce them so draconianly and to sort of not ever cut people some slack, because agents of officers have always been able to cut people some slack. When I was practicing immigration law back in the day, I had a client who at age 17 did something stupid and he drove while high and he had some marijuana on him and he got a ticket. It was a ticket. He didn't spend any time in jail. He paid a court fee of like $300. He had a green card that actually because of the drug war, meant he could have been deported. And not knowing about it, again, young people don't necessarily have the best developed brains on these things. He traveled and as a young man around his 22, went to his home country and he came back and a CBP officer noted that and said, oh, look, I could start the process of having you deported, but the officer said, I'm not going to. You should go talk to an immigration lawyer, see if you can get this resolved. And the guy eventually did. Well, he eventually did because he then he waited a bit and then he got married. He married a US Citizen, they had kids here, he had a job. And then he traveled again. And then on the second time he wasn't so lucky and he got put into deportation proceedings. But because of the amount of time that had passed in between those first two, that first incident, he was able to apply for a form of relief to let him stay in the country and eventually apply for citizenship and put his 17 year old mistake behind him because that first officer had some decency enough to say, why does it make sense to throw a guy in ICE detention and try to strip him of his green card for something dumb? He did at 17. And the law especially did give him some options. He just needed to have waited a number of times, been in the United States for long enough for that to have resolved. And that's a great example of why you need a system which has flexibility in it. But if you're just in there saying, we're going to enforce these laws to the harshest consequences with really no slack whatsoever, you get these stories that get people to say, I don't want to come to the United States. Who wants to be a country of who wants to go visit a country of like goose stepping martinets. Nobody does. And that's, I'm not saying that's where we are, but it's the impression that people are getting when they see these stories coming across their social media feeds.
- [34:32]
Bill Kristol
Yeah, no, it is. That's all those stories. Pretty astonishing. We'll say a word about what happened yesterday with the somewhat dramatic, I think court case before the chief judge of the D.C. district, Judge Boseberg, and this question of flying out these alleged gang members to prisons in El Salvador. I guess, though they're Venezuelan gang members, I think mostly. And he. But these based on. Entirely, I guess on the, I know, I don't know, adjudication, but not even on any documentation of who they are, I guess and on the claim that the President has a kind of unilateral authority to do this. But if he, if he doesn't have an Article 2 authority, he has. They've invoked this Alien enemies Act from 1798, which is supposed to be, which is used not always very well incidentally, literally in times of war. Right. This is to deport, you know, or to lock up someone who you think could be an enemy spy basically or, or sabotaging the war effort. This is not supposed to be for criminals, let alone people you're not even sure if they're criminals. They're just the same nationality or the cousin of someone who's a criminal. But anyway, say, say a word about what happened and what, what you think and why did they want to. They were, they. Let me put it this way, was there anything they couldn't have done if they hadn't invoked the Alien Enemies Act? I mean, it was only. We've been detaining people who are gang members for a long time here in the U.S. i mean, the Biden administration did it, the Obama administration did it, the first Trump administration did it and we put them in, in prison and we deport them or not, I suppose, but I mean, I don't know. So explain to me what, what's going on with that Alien Enemies Act.
- [36:11]
Aaron Reichland Melnick
Yeah, so the Alien Enemies act, as you mentioned, it's a wartime authority. And in fact, if you look at the actual words of the law, it can be only used in Queen quote, a declared war. So a war that Congress has officially voted on to declare which we haven't had since World War II, or it can be used during a, quote, invasion or predatory incursion by a foreign nation or government. Trend. Aragua, a Venezuelan street gang that by some reports has maybe 1,000, maybe 2,000 members in the entire United States. So it's not like it's. It is a smaller gang than a number of other bigger gangs in the United States. They are not a foreign nation or government. Sure, they have some corrupt. There are some allegations that they are corruptly connected to the Venezuelan government. That doesn't make them a foreign nation or government. You know, let's not treat that argument with any more seriousness than it deserves. It's just absurd. And so they have said these. This is a hybrid criminal state is the word they've used, and therefore that they can subject them to the Alien Enemies act, invoking the law for the. The fourth time in U.S. history and the first time ever invoked during peacetime to basically do what they can already do under immigration law. You know, that's the other crucial point here. Every person subject to this can be deported under other authorities, but those people might be able to apply for asylum or apply for humanitarian protections under normal immigration law. And so what they are doing is we want to just get rid of that. Who cares about those pesky rights under the law? We want to say, you're a member of Trender Agua, therefore, we can put you on a plane and send you wherever we want. And I think you use the word alleged at the start, and that's such an important word to emphasize here. The government does not have to present any evidence to any judge, to any adjudicator, to anyone whatsoever that these people are actually members of the gang. They say, we think you are, therefore you're an alien enemy, therefore we can put you on this plane. And if you look at the legal.
- [38:14]
Bill Kristol
Authority and not just put you on a plane back to your country, which has its own risks, obviously, and all this, but put you on a plane into a prison in El Salvador, right?
- [38:24]
Aaron Reichland Melnick
Yeah. And under what legal authority? We don't know. So I think there's a lot we don't know about this case. So I can't say, you know what. Where it's ultimately going to end out here, end up here. But the real danger. The danger here is due process. There are multiple people who are supposedly on this flight or who are part of the lawsuit that the ACLU filed who says, I am not a member of Trend Aragua. There is one person who is a LGBTQ asylum seeker from Venezuela who says he was running away from persecution in his home country. And because he had. He is a tattoo artist, he had some tattoos on his body. ICE has a tendency to say, if you got a Tattoo, you're in a gang. That's obviously plenty of people who have tattoos are not in gangs. And they say, we think you're get your tattoos mean you're in trend Aragua. He says, no, this is absurd. I don't. I can literally show you like where I got this from. This one of them was like a practice piece put on by another guy who worked at the tattoo shop I worked at. I'm not a member of a gang. He had no right to challenge their decision here. They just said, we think you're a member of the gang, therefore you're an alien enemy. You have no due process right whatsoever to challenge this. And that is terrifying. Same with, I will note the separate legal authority they're invoking for the Khalil case where they're saying this is a 1952 law that says the Secretary of State can personally declare someone to be, you know, bad for US Foreign policy. And that's another thing where they are invoking these authorities that don't let any independent adjudicator have any say.
- [39:54]
Bill Kristol
And this law, if I'm not mistaken, was, you know, a kind of, if there's a Soviet spy in the country, the Secretary of State can throw him out without getting tangled up in court. And the guy doing terrible damage to our, you know, stealing nuclear, I don't know, nuclear secrets or something. But that was the spirit of that law. I think it's been used almost never. Right. And in fact, it's a questionable.
- [40:12]
Aaron Reichland Melnick
Virtually never. And the last time it was used, it was used in the 1990s for a guy who was the Deputy Attorney General of Mexico who was accused of corruption. And Mexico wanted to extradite him as part of an like, anti corruption measures they were on that were ongoing. And he sort of argued that he shouldn't be extra, you know, extradited to Mexico. And they invoked this law to sort of short circuit the extradition process and essentially just get him deported. And ironically, at the time, a federal judge in Pennsylvania, Marianne Trump, Barry, President Trump's sister, ruled that the law was unconstitutional. And for various reasons, that decision didn't ever go into effect. The decision got sent back to the immigration courts on procedural grounds. And then before it ever had a chance to, you know, any other court had a chance to weigh in on these constitutional issues, he committed suicide. So the case never got back to the point where a judge could again rule it unconstitutional. But, you know, that law and the Alien Enemies act law really go to the heart of what President Trump is doing. And what he said in a court brief to the D.C. circuit last night, which is they think the President can just make these decisions even if immigration law doesn't apply. They do not want anyone to have any opportunity to reject their arguments, arguments. And that is something that anyone who believes in the law, the rule of law, should be afraid of. You know, that is the definition of tyranny. The tyranny is the President says it and therefore it must go. And how dare you suggest otherwise. We saw that with Pam Bondi suggesting that Judge Boasberg was siding with terrorists when he ruled, made this ruling again, a ruling about whether there is legal authority to do what they were doing. And unfortunately it feels in some ways like the post 911 era of freedom fries. But on the other ways even worse because even the Bush administration never attempted to invoke these authorities so broadly right now.
- [42:07]
Bill Kristol
That's what strikes me. I mean, somehow it's not about immigration policy entirely. It's partly about some vision of what kind of country they want to have, which is, I think, a fortress America, not a welcoming America, if you want to put it in a sort of simple dichotomy. But it's also about an America in which the President has massive executive authority and I would say tending towards autocracy, if not quite maybe even tyranny, as opposed to, you know, immigration law has always been different from, you know, non immigration law and it's more complex and there's a lot of leeway for the executive and for foreigners don't have the right to be treated quite the way Americans do in some ways. Native American or American citizens, I guess I should say. And then there are people who have green cards here who have something in between the rights of an undocumented person and a person who's a citizen and so forth. But anyway, it's a complex set of laws, but it is a set of laws. And say the Bush administration may have done some things wrong, certainly, almost certainly did and stretched a couple of laws and stuff, but there was no sense that they could actually just ignore all this. I mean, or there was a sense for a tiny number of people probably.
- [43:11]
Aaron Reichland Melnick
Who made, yeah, for, for some of the habeas claims they brought around Guantanamo Bay where they argued inherent authority there, but they certainly never argued, argued inherent authority to simply just erase immigration law and simply ignore the laws on the books for people who are in the United States. And that is what the Trump administration, they literally wrote in a court brief that even if the Alien Enemies act does not apply, the President can simply declare anyone who is in trend Aragua an enemy and deport that person under inherent constitutional authority. That's pretty scary allegation because they're also saying we don't owe that person any due process. And if the president says they're in the gang, they are in the gang and we can deport them. Who cares what the law says? That is dangerous.
- [43:55]
Bill Kristol
And I thought what came out of the hearing when I was listening last night was again, what's so interesting? I mean, they're under detention and no one's liberating them from detention. So it's not, this isn't the ticking time bomb. And if you don't exercise your, in this rare instance, your unilateral executive authority, the guy could be blowing up something in 12 hours. That was in effect with the Bush.
- [44:14]
Aaron Reichland Melnick
Administration, which was kind of, there's no emergency.
- [44:16]
Bill Kristol
They're in detention, literally in detention. So it's a question of when they get deported or, or held in detention for an extra few weeks or months. And, and then maybe there will be a, a hearing and maybe as you said of the previous, your previous instance of this one fellow who's a tattoo artist, you know, some people will turn out to have been detained wrongfully and they will be released and the other 70 or 90% or something will be deported. I mean, but yeah, there's no. That's what's so astonishing. Listening to the hearing, to the hearing last night, that's what maybe I found so astonishing that it's not as if I kind of assumed foolishly that there was sort of good faith, if I could say, on the government's part, and they really felt there was an emergency out of this gang was about to organize a mass, you know, assault on some people in some city or something. I don't know, that would, there's nothing like that. No argument like that.
- [45:01]
Aaron Reichland Melnick
Yeah, absolutely nothing. The most of the people, you know, who are alleged to be members of the gang have been alleged to have committed acts. Some of them, of course, have been allegedly committed heinous crimes for which they of course, should be prosecuted fully under the law. But quite a lot of them have been accused of nothing more serious than, you know, petty offenses, misdemeanors, maybe drug trafficking, maybe some serious offenses here, but nothing that cannot be resolved pretty clearly under pre existing law or that would require any kind of emergency. You know, this is not Al Qaeda. This is not isis. This is a gang. A gang that does some pretty bad stuff. Nobody's pretending otherwise, but we've had gangs in the United States before. We, we can deal with them under the current existing law and we don't need to be dusting off this wartime authority. But of course, that is the vision that the president wants the American public to believe in. You know, we are under attack. And because we are under attack, I alone can save you, you. And that's something he said many times. I alone can do this. And that's really how they are trying to govern.
- [46:03]
Bill Kristol
No, I think that's so important, unfortunately, a good note or important note to dead. But it's also true, I mean, as you say, if the Haitians in Springfield, Ohio, who President Trump and Vice President Vance thought were doing such horrible things back in the, in September and so forth, they're here on temporary protected status. That does run out. And there's no question that they don't, they don't necessarily have a right to have it extended. They could make an argument that it should be extended because Haiti is not a safe place to go back to. But okay, that's a kind of normal, if you will, you know, argument. You might say just debate legal case or political question. In some ways, Congress might have a chance to weigh in, too. But there's no emergency. I mean, it's not like right. Nothing is happening in Springfield, Ohio. That wasn't happening six months ago. And that is nothing much was happening honestly six months ago. But in any case, they can wait for the, they can tell them now you're going to have to leave. They can tell the Venezuelans. That is the most striking one, the Venezuelan. Has anyone complained about the Venezuelans here? I'm not aware of it. I kind of think I've been to Florida a couple of times. South Florida people seem very happy to have all these people there who are working hard, contributing to the economy and so forth. And suddenly they've just, they have to go on April 3rd. Why? I mean, really, I mean, honest. It's an honest question. Why? Except if you think if you buy an overall narrative that these foreigners are just, it's bad for our country to have a lot of people who weren't born here and don't whose native language isn't English.
- [47:21]
Aaron Reichland Melnick
Yeah. And Kristi Noem said on Fox News after making the decision to strip 300,000 people of status, we're going to get these criminals out of here. And that is the attitude. And again, this is a group of people, 350,000Americans, you do pick them at random. You're going to have one or two people in them who've done some bad stuff. That's the reality. Of course, in any large enough group, you can find a couple of bad actors. But these are people who came forward, were fingerprinted, are paying their taxes, are paying application fees every month to get the status, and if they commit any offense in the United States, they'll lose their status. And yet this administration is saying we're kicking the criminals out. And I think that is really the attitude of the White House here, is it does not matter who these people are as a class. They view them as undesirable criminals who all should be removed, really. Who cares actually what the reality is? And I think that's a really toxic view of humanity. It's a toxic view of immigrants, and it's a toxic view of the rule of law. You know, we have procedures in place for a reason. They should be followed. People should be given some opportunity to present their case about why they should get to stay. But this administration doesn't like that because it could lead to some people actually getting to stay.
- [48:36]
Bill Kristol
Yeah, who cares what the reality is and who cares what the law is? That's basically their attitude. Depressing. But I think, I hope, I think, I think illuminating and I, I trust illuminating for our viewers. So, Aaron, thank you so much for, for joining us today on on the Bull work on Sunday. And thank you all for joining us.
- [48:54]
Aaron Reichland Melnick
Thank you again.