Fresh Air (NPR): Are ICE Agents In Minneapolis Breaking The Law?

Date: January 21, 2026
Host: Terry Gross
Guests: Professor Emmanuel Malion (University of Minnesota Law School), Elizabeth Goitein (Brennan Center for Justice)

Overview

This episode of Fresh Air tackles the legal, civil rights, and democratic implications of the intensified presence and alleged lawbreaking by ICE and Department of Homeland Security agents in Minneapolis–St. Paul, Minnesota, amidst soaring federal immigration enforcement action under President Donald Trump. Host Terry Gross speaks with constitutional and policing expert Professor Emmanuel Malion, and Elizabeth Goitein, a leading authority on emergency powers and government surveillance, about how these actions intersect constitutional law, civil rights (especially for immigrants and protesters), and the history of white nationalist influence on law enforcement. The conversation also explores the use and abuse of the Insurrection Act, racial profiling, and the boundaries of presidential power.

Key Discussion Points & Insights

1. Actions by the Trump Administration: Legal Overreach & Authoritarian Patterns

• Concerns Raised by Experts
  • Elizabeth Goitein and Emmanuel Malion both outline deep concerns over the Trump administration’s approach:
    • Violations of constitutional rights during law enforcement (Fourth, Fifth, and Sixth Amendments).
    • Deployment of federal resources against perceived political enemies.
    • Presidential attempts to misuse the military domestically (Insurrection Act).
    • Escalating militarization and bypassing of local/state authority.

“Deploying the federal government against political enemies is a hallmark of authoritarian regimes, and it has major implications for basic First Amendment rights and for the functioning of our democracy.”
— Elizabeth Goitein [03:27]

2. Personal and Community Impact of ICE Operations in Minneapolis

• Everyday Fear and Legal Uncertainty
  • Professor Malion shares personal anecdotes about racial profiling and wrongful arrest as a Latino growing up in Minneapolis.
  • The community lives under daily threat from federal agents. ICE presence permeates neighborhoods, leading to frequent detentions and heightened anxiety.

“ICE has just become this constant background presence. And in some neighborhoods, not a background presence—it's whistles and car horns and honking at every moment of the day.”
— Emmanuel Malion [08:06]

• Advice to At-Risk Individuals
  • Know your rights (right to remain silent, right to ask if free to leave, right to legal counsel).
  • But be realistic: “These are rights in theory, so long as the government is willing to acknowledge them, protect them, and obey the law. And what we’ve seen here is that’s not been the case.” [09:13]

3. Legal Boundaries: ICE & Military Authority

• Limits of ICE’s Authority
  • Malion: General police powers for crime are state/local issues; ICE is federally limited to immigration law.
  • ICE has overstepped into crowd control, protest suppression, and even routine traffic stops—roles not authorized for them.

“They’re not supposed to be really engaging legal observers. ... What we’re seeing is they seem to be reading their authority as incredibly expansive and ... entitled to stop anybody in the city of Minneapolis for any reason as part of this overall operation. That certainly would be contrary to what I think any court has found in the past.”
— Emmanuel Malion [18:37]

• Right to Record Law Enforcement
  • Seizure of citizens’ cameras/phones while documenting agents would be a clear First Amendment violation if not impeding enforcement.

“If there’s an ICE arrest occurring and you’re filming from 15 feet away … that would be a violation of the Observer’s First Amendment rights.”
— Emmanuel Malion [19:51]

4. The Insurrection Act and Abuse of Emergency Power

• Insurrection Act: Rare, Dangerous Precedent
  • Goitein outlines that the Act is meant for rare, extreme unrest, not for enabling or protecting excessive ICE force.
  • Trump’s threats to invoke the Insurrection Act or send military troops to Minneapolis are seen as clear abuses of power.

"There is chaos, I would say, in the city, but it's chaos of the federal government’s own making. … The lawlessness and violence is overwhelmingly coming from ICE ... [deploying the military] would be an abuse of the Insurrection Act."
— Elizabeth Goitein [12:31]

• Military as Domestic Police
  • The Constitution’s and Posse Comitatus Act’s division of military and civilian law enforcement is foundational.
  • The military is neither trained nor meant for domestic law enforcement, raising the risk of escalation and rights violations.

“The principle that the military should not act as a domestic police force goes back centuries, all the way to the Magna Carta ... If a leader can turn the army inward against the people, that can be a very powerful instrument of tyranny and oppression.”
— Elizabeth Goitein [16:01]

5. The Evolving Legality of Racial Profiling

• Recent Court Cases: “Kavanaugh Stops”
  • A Los Angeles case (Vasquez Perdomo v. Noem) found ICE engaged in racial profiling, later overruled due to a Supreme Court opinion (Justice Kavanaugh’s concurrence).
  • Kavanaugh controversially argued it's constitutionally reasonable for race/ethnicity to be one factor in suspecting unlawful presence (along with accent, location, etc.), leading to new terminology: “Kavanaugh stops.”

“These interactions … that we see racial profiling as their foundation, these are now being referred to as Kavanaugh stops.”
— Emmanuel Malion [23:38]

• Legal Backtracking and Dicta
  • Kavanaugh later tried to clarify that race alone cannot be the sole factor, but this reversal is seen as non-binding and inadequate.

6. White Nationalism & Law Enforcement

• Explicit Ties in Immigration Policy
  • Malion: Open white nationalist ideology has historically influenced, and continues to influence, U.S. immigration enforcement policy.
  • Cites recruitment patterns and the influence of senior administration figures with clear white nationalist leanings.

“There’s a not so discreet connection between the desires and stated policy goals of open white nationalists and this administration... Stephen Miller ... is and has been called, by groups such as the Southern Poverty Law Center, someone that’s openly embracing white nationalist talking points.”
— Emmanuel Malion [36:36]

7. Checks and Balances: Congressional and Judicial Intervention

• Who Can Stop Executive Overreach?
  • Goitein explains that while the President cannot legally declare martial law or unilaterally deploy the military without justification, congressional inaction and a “capricious” approach to foreign and domestic policy raise grave concerns.
  • The Supreme Court has shown skepticism towards some of Trump’s military deployments but outcomes are unpredictable.

Notable Quotes & Timestamps

• “Race cannot be an objective reason to stop someone.”
  — Emmanuel Malion [22:36]

• “[If] the President can turn the army inward against the people, that can be a very powerful instrument of tyranny and oppression ... baked into our nation’s DNA.”
  — Elizabeth Goitein [16:32]

• “My main fear is less about the specific actions that they will take, but the consequences of militarizing US cities … it will escalate matters.”
  — Elizabeth Goitein [27:36]

• “We’re supposed to have checks and balances, but what we’re seeing is what happens when our constitutional system, our separation of powers, our different branches of government abdicate their responsibility.”
  — Emmanuel Malion [41:54]

Important Segment Timestamps

• Opening & Guest Introductions: [00:13]–[02:33]
• Overview of Administration Actions: [02:33]–[05:02]
• ICE Presence in Minneapolis—Personal Story: [05:24]–[09:55]
• Legal Boundaries for ICE vs. Local Police: [17:07]–[20:20]
• Racial Profiling & “Kavanaugh Stops”: [21:29]–[25:21]
• Insurrection Act & Military Deployment: [26:37]–[29:44]
• White Nationalism and Immigration Enforcement: [36:35]–[38:51]
• Checks, Balances, and Judicial Review: [29:44]–[33:47]
• Greenland & Executive Power: [38:51]–[44:13]
• Closing: [44:13]–end

Tone & Language

The episode features urgent, meticulous legal analysis with interwoven personal stories and historical context. Both experts maintain a measured but deeply concerned tone, emphasizing threats to constitutional rights, systemic racism, and the dangers of unchecked executive power. Terry Gross anchors the discussion with probing questions, seeking clarity for listeners on complex legal and democratic norms.

This comprehensive episode offers insight into the current constitutional crisis around ICE actions in Minneapolis, the legal theories and realities of federal law enforcement, and the fundamental hazards posed by eroding civil rights protections in the United States.