Trump, Immigration & the Erosion of Due Process

Speaker 1 Hi, everyone. This is Kara.
We recorded this panel on Thursday.

Speaker 1 Early Saturday morning, the Supreme Court temporarily barred the Trump administration from removing a group of Venezuelan migrants from the United States.

Speaker 1 The court was responding to an emergency application from the ACLU, which sought to prevent the administration from using the Alien Enemies Act to remove migrants without due process.

Speaker 1 In the coming days and weeks, the courts will weigh in on major constitutional issues, and this expert panel gets the core of what's at stake. So stick around.

Speaker 1 Hi, everyone, from New York Magazine and the Vox Media Podcast Network. This is on with Kara Swisher, and I'm Kara Swisher.

Speaker 1 Immigration-related cases have been dominating the headlines, and for good reason.

Speaker 1 A federal judge has found probable cause to hold the Trump administration's officials in contempt of court for violating his order to stop the deportations of migrants that have received no due process.

Speaker 1 And then there's the case of Kilmar Armando Abrego Garcia.

Speaker 1 He entered the country illegally and was given protected legal status, but then got deported to El Salvador in what the administration initially admitted was an administrative error.

Speaker 1 The Supreme Court upheld a lower court decision and ordered the administration to facilitate his return in a 9-0 decision, but so far the the administration has essentially thumbed its nose at the courts.

Speaker 1 There's a seemingly endless number of constitutional issues being raised almost daily.

Speaker 1 In the middle of this recording, we heard that the Supreme Court will hear a case challenging birthright citizenship. So we've got three experts to help us understand this huge mess.

Speaker 1 Caitlin Dickerson is a Pulitzer Prize-winning staff writer for The Atlantic who covers immigration and is currently writing a book on the impact of deportation on American society.

Speaker 1 I happen to be a massive fan of of her also.

Speaker 1 Maria Inojosa is a Pulitzer Prize-winning journalist, the host and executive producer of the Peabody-winning Latino USA, and the founder of Futuro Media Group.

Speaker 1 The second season of their podcast, Suave, was just released.

Speaker 1 And Deborah Pearlstein is the director of the Princeton Program in Law and Public Policy, a law professor, and a constitutional law expert. Her book, Losing the Law, comes out next year.

Speaker 1 Our expert question comes from CNN legal analyst Ellie Hoenig.

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Speaker 1 Caitlin, Maria, Deborah, thank you for coming on on. Thanks.

Speaker 3 Thanks, Kara.

Speaker 7 Good to be with you.

Speaker 1 There's a lot to talk about, but let's start with the blue sky post from Senator Chris Murphy of Connecticut that really cuts to the chase.

Speaker 1 After Stephen Miller, the deputy White House chief of staff, said the Supreme Court had ruled in its favor in the Kilmar Armando Abrego Garcia case, Murphy wrote, if we normalize this, there's no end.

Speaker 1 He can lock up or remove anyone. We will no longer exist in a democracy.
I want all of you to answer, first Maria, Deborah, and then Caitlin, do you agree with Murphy?

Speaker 1 And if so, what makes this moment different from any of the other times President Trump has seemingly defied court orders?

Speaker 7 I mean, the moment for me when it really shifted, and there have been a lot of moments with this administration, obviously, my tentacles are up and my antennas, et cetera, and I'm trying to keep control so I don't lose my mind with every single day that passes.

Speaker 7 But when the Trump administration said, oh, Kilmar, no,

Speaker 7 we can't go get him. He's out of bounds.
He's gone.

Speaker 7 He's not our concern anymore. That's when I got very concerned.
The fact that now you have the Supreme Court ruling that says he must be returned and that they're saying, oh my God, what a win.

Speaker 7 Kara, in many ways, it goes to the fundamental moment that is going to define how we understand this, right?

Speaker 7 If you are consuming Fox News or you're reading the New York Post, you believe, you are believing that what Donald Trump did is a positive thing, but it's not based on fact.

Speaker 7 It is based on all of this conjecture about Kilmar that is not true.

Speaker 7 So I didn't think that it was going to be Senator Chris Murphy from Connecticut that would be the one who has now several times waved the flag to say what is happening is dangerous for all of us.

Speaker 7 But there you have it. If you have a straight white man from Connecticut of all places saying the red flag has been waved, yes, I absolutely believe that this is different.

Speaker 7 This is not the same as any other moment.

Speaker 2 All right, Deborah?

Speaker 2 Yeah, so as a scholar of the Constitution and of constitutional democracy, I've sort of been watching, I think since 2017, with the feeling of literally being in a tub where the temperature is gradually being turned up and getting increasingly uncomfortable and increasingly uncomfortable.

Speaker 2 And this moment is, you know, I really, really want to get out of the tub.

Speaker 2 You know, I will say, though, for lawyers in general, for me in particular, right, we watch really carefully what exactly the court did and what exactly it said and what the administration has done, right?

Speaker 2 And the court, like courts do, issued an incremental order. It said, you have to facilitate, right? Which is the kind of word lawyers use.
It's the kind of words judges use.

Speaker 2 And then the court remanded it to the lower court, which is now moving a step forward, right? So the administration retains this plausible legal argument, sort of,

Speaker 2 that, you know,

Speaker 2 it's not abjectly defying the order of the court.

Speaker 2 Now, with every day that passes, and especially what it's done to the lower court, not to the Supreme Court, who has ordered it to answer specific questions that it has consistently refused to answer, that's where I think the defiance is.

Speaker 2 And that's where, you know, I'm at a red flag moment too. Caitlin?

Speaker 3 Yeah, I agree with what the other two panelists have said. I think that this moment looks totally different than what we've seen in the past.

Speaker 3 I mean, I followed Trump's first administration, its actions on immigration so closely. And the courts were very relevant.

Speaker 3 You know, at every step of the way, lawsuits were being filed as these policies were being introduced, like rapid fire.

Speaker 3 States were going after the administration, advocacy groups and immigrants themselves, obviously, and a lot of policies were tied up in court.

Speaker 3 And so the administration found a way around that by using this kind of throwing spaghetti to the wall to see what sticks approach, where they just kept introducing new changes and new changes, that Steve Bannon flooding the zone idea and got a lot done that way.

Speaker 3 But the courts effectively slowed and even stopped a lot of what they were trying to do.

Speaker 3 And here very clearly that's not happening, including the Supreme Court in a unanimous, if vague, but I think clear enough

Speaker 3 decision. And

Speaker 3 I mean, the other reason why this is so different from what we've seen before is that this isn't just about immigration. What happened to Kilmar is not just about immigration.

Speaker 3 That's what we're here to talk about today. But the president is already talking about sending American citizens to this kind of constitutional black hole.
And so raising the issue.

Speaker 3 So the idea of him being, you know, Kilmar, his case being the very beginning, the opening of a door that's going to go much wider.

Speaker 1 So there's so much happening every day, it's hard to keep up. But there are a few cases that really stand out besides a Brego-Garcia case we just discussed.
Mahmoud, Khalil,

Speaker 1 Mohsen, Madoui, Rumasa, Oztruk, are students who are here legally, but now are fighting deportation after expressing support for Palestine.

Speaker 1 There's a case where the Department of Homeland Security deported hundreds of Venezuelan nationals to El Salvador, even after a federal judge ordered them not to.

Speaker 1 Deborah, what are the most pressing constitutional issues raised by these particular cases?

Speaker 2 So there are a lot of constitutional issues raised, I think, that are all pressing. I would put the defiance of Supreme Court orders at the top of all of these lists, right?

Speaker 2 And we're there, or very nearly there, both with Kinlar's case and also this broader case that was the initial case about the transportation of hundreds of, you know, alleged, although we don't really know who they are, right, people to El Salvador.

Speaker 2 So

Speaker 2 those two cases were right on the edge of defiance, and we are on the edge of defiance and maybe over it in a lot of the expenditure and withholding of funds cases too. too.
On the immigration side,

Speaker 2 I think the case that involves

Speaker 2 rescinding, removing, just stripping away status that was otherwise legal on the basis of speech that is distasteful to the president. And people will say, oh my God, these speech was so,

Speaker 2 what they said was so sort of milquetoast, it wasn't even that sort of severe. But that really misses the point.
The point is we're using these authorities not to go after

Speaker 2 what they campaigned on, which is, oh, we have this problem at the border. There's this problem of undocumented people.
These are people who we invited here and are here legally, right?

Speaker 2 They're here studying, they're here working, they're here paying taxes, right? This is not

Speaker 2 there's just simply no policy argument here other than we don't like what they're saying and we want to get them out of the country. And that's having a staggering chilling effect, right?

Speaker 2 And the only concern about them is a concern that the administration has that it doesn't like their politics. It's going after has nothing to do with immigration status.

Speaker 2 It has to do with perception of political enemy of the state. And that's, I think, truly terrifying.

Speaker 1 So Caitlin, in your latest piece in the Atlantic, you point out that a lot of the people targeted for deportation had no criminal history.

Speaker 1 Abrego Garcia has never been charged with a crime in this country. All non-citizens are potentially subject to deportation.

Speaker 1 But why are they going after chaplains and makeup artists instead of prioritizing immigrants who've been convicted of violent crimes? There may not be very many of them is my guess.

Speaker 1 Why is that the policy here?

Speaker 3 Well, I think first and foremost, the reason is because the caricature of evil that Donald Trump has depicted does not represent the vast, vast, vast majority of immigrants living in the United States.

Speaker 3 Like, you know, he talks so much about people with a history of, you know, sexual violence and drug trafficking and human trafficking. Of course, these things exist.

Speaker 3 It's a tiny proportion of the overall immigrant population and the undocumented population. So you simply don't have millions of people who fit that bill and can be deported.

Speaker 3 And so there's this desperation to hit numbers. You know, ICE agents are under so much pressure from the White House.

Speaker 3 We all know that they've demoted high-level officials who weren't viewed to be pushing hard enough to get enough deportations. The administration is putting quotas on regional ICE offices.

Speaker 3 They need to achieve X number of arrests or deportations in a given month. And the numbers are unrealistic.
It may change.

Speaker 3 Congress right now is talking about giving immigration enforcement agencies a lot more money to be able to do this work.

Speaker 3 But as of right now, they're having to go after it, frankly, anyone they can get their hands on.

Speaker 7 I mean, here's the thing, Kara. We know the data, right? Immigrants are less prone to commit crime.
Crime in general in the United States over the past 30 years has

Speaker 7 dipped precipitously by 50%, violent crime down. So the whole notion of there are all these criminals running around is based on, I'm sorry, we don't like to say it, but it's based on lies.

Speaker 7 And those lies are then perpetrated by many of our colleagues in the mainstream news because they don't know any better. And frankly, they're lazy.

Speaker 1 Trevor Burrus, Jr.: So, during a press conference with Salvadoran President Naeb Bukele, Trump said Attorney General Pamboni is looking for how they can deport, incarcerate American criminals or what they call homegrown criminals.

Speaker 2 But Maria,

Speaker 1 you were on a reporting trip to El Salvador last month. Tell us what you saw, including any parallels between their governing styles, and then talk about the idea of deporting American citizens.

Speaker 1 And I will note,

Speaker 1 I know many people from Salvador, and they actually are very supportive of him, of their president. He has very high approval ratings there, including people that have surprised me even.

Speaker 3 For now. For now.
Okay. For now.

Speaker 7 I actually believe that the, and it's not what I believe, it's what we've seen, right? The cracks are starting to show.

Speaker 7 If you had such a high approval rating for a Bukele administration where people were not taking to the streets,

Speaker 7 one, because they appreciated the fact that the country had become safer, but two, because protesting against Bukele...

Speaker 7 in a moment when you have basically martial law, it's not something that people are willing to do.

Speaker 7 You have actually seen people taking to the streets in El Salvador, in in the capital, San Salvador, to protest against the president. That's just the beginning of the cracks starting to show.

Speaker 7 I never thought, Kara, that I would, because I've been reporting about El Salvador since I was a Cub journalist right on this campus at Barnard, where I am right now, but I never thought that I would see a situation where you have an American administration, like the Trump administration, looking at Bukele and saying, huh, kind of like what you're doing there.

Speaker 1 Right. Maybe.
And the idea of deporting American citizens.

Speaker 7 I mean, right now, Donald Trump, that's how he starts, right? He's doing a trial balloon. He's putting it out there to see how it responds.
And I believe him when he says he will try to do this.

Speaker 7 So, you know, for Bukele, I think in the long run, this is going to be disastrous for both Trump and Bukele. I think that Bukele right now in an international scene is being looked at and laughed at.

Speaker 7 And I think he's lost any kind of international standing because of what he's doing and the defiance by him and Donald Trump to the American Supreme Court.

Speaker 1 Judge Boseberg, the federal district judge who oversaw the deportation cases, has found probable cause to hold Trump administration officials in contempt, of court, for violating his order to stop deportations.

Speaker 1 To El Salvador Deborah, lay out what his next steps are, from demanding sworn statements all the way to potentially appointing an outside prosecutor and explain what's his strategy here?

Speaker 1 What does he have at his disposal?

Speaker 2 I actually think he's being very judge-like in what he did. You know, he could have simply issued an order of contempt, right? He has that power.
He could have gone there now.

Speaker 2 And based on the pages and pages of facts he lays out that he knows, the argument for saying the administration violated his initial order to turn the planes around is incredibly strong, right?

Speaker 2 But instead, he said, I'm making a finding of probable cause of criminal contempt. Now,

Speaker 2 that's not something that exists in statute. Courts don't have to do that.
It's not particularly common. He certainly has the power to say, well, I'm just finding probable cause.

Speaker 2 But what he's doing is using it as a step to force more information and to tighten the screws further, right? Even Trump has said, well, I respect the opinions of the Supreme Court, right?

Speaker 2 So he's being very deliberate in his steps.

Speaker 2 He said, first, I'm going to try declarations, sworn declarations. We're not going to base this on statements in the Oval Office or, you know, Pam Bondi going on TV on Fox News or whatever.

Speaker 2 And if I'm not satisfied that I'm getting in the information I want from sworn declarations, we'll move to deposition testimony and sworn testimony on the stand if we need to.

Speaker 2 And if that fails, then I will issue a request to the Department of Justice to appoint a lawyer, a referral, basically, to prosecute a case of criminal contempt, right? He's trying to identify.

Speaker 1 They don't have to, correct?

Speaker 2 They don't have to, right? He's trying to identify which official to hold in contempt specifically.

Speaker 2 And if they don't, he has said, and the federal rules give him the power to do this, I I will appoint an independent, a separate attorney to pursue the criminal case.

Speaker 2 Now, he has the authority to do that under statute, but that authority will be absolutely challenged by the administration.

Speaker 2 There are plenty of scholars who think, gosh, that raises, that itself raises a direct separation of powers question.

Speaker 2 Even if he succeeds in sustaining a prosecution for criminal contempt, there will be another question about whether the president can simply pardon the offense of criminal contempt by whichever official is held responsible.

Speaker 2 And this is why, right, the sort of turtles all the way down problem. Ultimately, as Hamilton said, right, the courts have neither the purse nor the sword.

Speaker 2 They have no actual enforcement power of their own except as dependent on the executive.

Speaker 2 And when people, I hate the phrase constitutional crisis, it doesn't really mean anything specific and people sort of use it all the time.

Speaker 2 But I guess in my own mind, it means that the Constitution and institutions that exist and the laws have run out of solutions to a problem of law defiance.

Speaker 2 And the solutions then are Congress and the people themselves.

Speaker 3 And this is why

Speaker 2 I think it's important to think about the crisis not as a flashing light, right? It is a slow-moving train wreck and identifying the moment at which it's time to

Speaker 2 call in the marchers or for members of Congress who are afraid but wavering about when the time is to act. What the administration is trying to do, I think, mostly effectively is obscure that moment.

Speaker 1 We'll be back in a minute.

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Speaker 1 So many of the Venezuelan immigrants who are flown to El Salvador for allegedly being members of the Trenda, I think it's Aragua gang, presumably got there by traveling through the Darien Gap.

Speaker 1 Caitlin, you actually walked through this gap yourself. Tell us about the people you met and what expectations were, especially as it relates to their legal status.

Speaker 1 Did most of them think they would eventually become American citizens? Were they planning to live and work in the shadows or something in between?

Speaker 3 Most people I met, I can't really think of an exception to this, to be honest. Everybody I met said that they were heading to the United States as a last resort.

Speaker 3 This wasn't, you know, the pursuit of the American dream. It was my home country has become so untenable that I feel that I have to leave.

Speaker 3 And I also want to point out most people I met had tried resettling elsewhere in neighboring countries before moving on to the United States.

Speaker 3 I think economies in Latin America, in particular, were so decimated by the pandemic that it was very difficult for people to find steady work and safety.

Speaker 3 And so people heading north were at that point planning to use this app, CBP1, that the Biden administration created as a legal pathway to parole into the United States.

Speaker 3 And so they were planning to follow this process that requires signing up for an appointment once they reached Mexico, going in for an interview, and then being allowed into the United States if they passed the interview, after which they would pursue some other kind of legal status, whether it was going to be temporary or permanent.

Speaker 3 Lots of people told me they wanted to head back home eventually as soon as they could, as soon as their country was stable enough for it. And so

Speaker 3 what happened though, and

Speaker 3 I should say,

Speaker 3 most people said they wanted to use the CBP1 app. Of course, some people didn't wait for their appointment.
Some people did just cross the border illegally.

Speaker 3 They may have requested asylum or some other form of protection. but got into the United States and then the Trump administration gets rid of that CBP1 app right away, right?

Speaker 3 And takes away that parole status.

Speaker 3 And so there was this real dissonance during the campaign when I heard Trump harping so much about the number of illegal immigrants that Biden had allowed into the country.

Speaker 3 When, in fact, when you look at polling, what Americans want is for people to have followed a process, apply to enter the United States, and then come in when they're approved.

Speaker 3 Many people don't realize that for lots and lots of immigrants, there is no process that exists. But when it comes to this parole program, they'd followed a process.

Speaker 3 But Trump had sort of effectively convinced the electorate that somehow people were still illegal, quote unquote, even though they had been approved to enter the country.

Speaker 3 So that's, you know, a big proportion of the folks that Trump is trying to deport right away now as people who entered in the last few years, who crossed the Darien Gap, you know, risked their lives, traveled for weeks or months, followed the rules, and

Speaker 3 now may be sent home.

Speaker 1 Yeah. Also of concern to people is Khalil, for example, and Madui were legal permanent residents.

Speaker 1 Caitlin, you're just describing describing a process that people were doing the process we asked them to. In a lot of cases, these are legal permanent residents or green card holders.

Speaker 3 Permanent, underline the word permanent.

Speaker 1 Permanent, right, permanent resident.

Speaker 3 Which is obviously not a literal term, but it's intended to be.

Speaker 1 Yes, but some of them who organized protests on Columbia University campus.

Speaker 1 But according to the administration, the Immigration Nationality Act of 1952 gives the Secretary of State the authority to deport a non-citizen if they pose a threat to national security.

Speaker 1 Maria was once a green card holder who organized campus protests.

Speaker 1 And as a legal permanent resident, you had the constitutive right to free speech. Can you all speak to this from your individual viewpoints?

Speaker 1 First of you, Caitlin, when you see, you're saying, you said permanent. They're supposed to be permanent in this status.

Speaker 3 The first thing for people to understand is that if you're in the United States on a visa, your situation is a lot more precarious than people realize.

Speaker 3 I think that Americans tend to understand our immigration system as something that's orderly.

Speaker 3 You know, there's a line for everybody to get in, and all you have to do is fill out the paperwork properly, and then you're here, and there's no big deal.

Speaker 3 And so all these people who are deportable must have done something gravely wrong or tried to evade the system when, in fact, it's very precarious to be in the United States, whether it's on an employment-based visa or a work-based visa.

Speaker 3 I think. Green cards are, though, generally seen as different and even felt as different.
I mean, with green cards, if you've committed a crime, even if it's a very old one, you can be deported.

Speaker 3 But there are many people in the United States who live here on green cards for decades and don't even really think about it because they feel safe.

Speaker 3 But that precariousness is always there and can always be wielded as a political tool. I think what's happening right now reminds me of certainly moments in American history past.

Speaker 3 Of course, you know, you look at Japanese internment, you look at

Speaker 3 even the so-called Operation Wetback under the Eisenhower administration, where American citizens were deported.

Speaker 3 These things have happened in the past, but in the post-civil rights era and the post-World War II era, I think the general understanding was that as a country, we weren't going to go back.

Speaker 3 We weren't going to go back to a place where people's legal status could be taken away from them in this capricious way just based on whether the president likes what they say or not.

Speaker 3 And yet, here we are again.

Speaker 2 Here we are again.

Speaker 1 Deborah, from a legal point of view, it is precarious.

Speaker 2 It's absolutely precarious.

Speaker 1 You could come up with any scheme to get people out, right?

Speaker 2 Well, if not any, right? Congress has delegated in the immigration context and in several others, including emergency powers and, for that matter, tariffs.

Speaker 2 Congress has delegated sweeping powers to the executive with very little guidance or very sort of broad instructions about how it can be exercised, what counts as an emergency, who can be deported in the immigration context, especially, right?

Speaker 2 So these powers have been on the books for a long time. There have been a lot of people who said, gosh, that's an extraordinary delegation of power.
We should try to rein that back.

Speaker 2 That's giving too much power to the executive. This is in part Congress's failure to deal with immigration issues for decades, right?

Speaker 2 But nonetheless, we've benefited or these issues have benefited to some extent by presidents who are generally of good faith, right?

Speaker 2 People who are not trying generally to remove all foreigners from the United States just because they don't like them or believe that they're political opponents, right?

Speaker 2 But the reality is, as a matter of power, they have been on the books.

Speaker 2 Now, the other thing that's also been true throughout this time is the general understanding that once you are in this country, in whatever status you're here, right?

Speaker 2 Whether you're a green card holder or whatever status, right, you are entitled to constitutional rights, including the right right to due process.

Speaker 2 So if you are an immigrant and you are picked up in the United States and you're a non-citizen and you're charged with a crime, you are entitled to all of the same protections, Fourth Amendment, Fifth Amendment, Sixth Amendment, et cetera, that any other

Speaker 2 defendant in a criminal prosecution is entitled to. On the First Amendment question, right, we haven't dealt with this in decades.
So there are still open questions.

Speaker 2 This is going to go back up to the Supreme Court.

Speaker 2 But the fundamental idea that all persons in the United States are entitled to constitutional protection while they're here, and indeed the First Amendment in particular is directed toward the federal government.

Speaker 2 Congress shall make no law, right? So, and that's been interpreted to mean anybody in the federal government shall not abridge the right to freedom of expression.

Speaker 2 And it obviously has not only a sort of broadly rights violating effect on whoever it's being exercised toward, it has this, as I was talking about before, staggering chilling effect in every setting in the United States, whether schools or universities or businesses, where people who have different statuses are living and working.

Speaker 3 And that's what made it so striking, just real quick, so striking that Ann Coulter tweeted something that was almost verbatim. There's almost no one I don't want to deport.

Speaker 3 But isn't what's happening to Khalil a violation of First Amendment rights? You know, when you have Ann Coulter standing up and saying, whoa, whoa, whoa, you're deporting too many people.

Speaker 3 She herself is admitting you've gone very far. Very far.

Speaker 1 So, Maria, would you have said less?

Speaker 2 What would have done?

Speaker 1 You were a green card holder. You did protest.

Speaker 2 Right.

Speaker 7 So

Speaker 7 for context, right, my father is hired at the University of Chicago. May he rest in peace.
He was a medical doctor devoted to research. He helped to create the cochlear implant.

Speaker 7 He comes to the University of Chicago and is fast-tracked for his citizenship. But my mom and the four kids, we got green cards.

Speaker 7 So I remember always the fact that Bapi could vote, but we couldn't vote. But I was growing up at the end, well, in the middle of the civil rights era.

Speaker 7 So when I was eight years old, my mom, all of us with green cards, we went to a protest in support of Dr. Martin Luther King.

Speaker 7 We understood that my dad could vote, but the rest of us with green cards were able to take part in democracy, which is street democracy, which is talking about politics.

Speaker 7 So when I get to Barnard, I was a full-fledged organizer.

Speaker 1 Would you do it now?

Speaker 7 And that's the thing.

Speaker 7 I have to be totally honest with you.

Speaker 7 One adolescence, right? And you're an adolescent until you're age 26 and 27. An adolescent brain is like the toddler brain.
And that means you're always going to be pushing the envelope.

Speaker 7 So I think that the adolescent in me, the 19-year-old in me, would have said, hell yes, I'm going to keep on protesting. But I think,

Speaker 7 you know, the thing would be like, oh, I'm going to call Papi. I'm going to have to call my dad and say, Puppy, they've took away my green card.

Speaker 7 I'm going to be taken out of the country,

Speaker 7 expelled from my college and university. And I don't think I could have ever imagined having that conversation with dad, which the answer to your question, Kara, is I would have silenced myself.

Speaker 7 And I have students right now on this campus. I mean, I'm doing my office hours.
I'm going to go teach right now.

Speaker 7 And all of my students, those with citizenship, those with green cards, those without status, all of them are terrified.

Speaker 7 And I'm just going to tell you, two students right before we recorded, both of them not white, but both of them American citizens.

Speaker 7 And both of them have been approached with kind of like, are you sure you're safe kind of situations? It's like, they're American citizens.

Speaker 7 So the question of this coming into horribly a racial element where they're there.

Speaker 7 I have, again, I have students who are not white who are worried because people are questioning their American citizenship and they were born here.

Speaker 2 And I just want to, if I can, underscore how far we have moved, both certainly as a legal matter and the defines of the courts and all of that, but as a policy matter

Speaker 2 from even where the Trump campaign was

Speaker 2 to where we are now. We have some terrific students here who have been doing great work documenting where the arrests are happening.

Speaker 2 So we've seen this huge uptick in arrests and which agencies are acting.

Speaker 2 And what we've seen in the last month is sort of that if you think about CBP and ICE, the two sort of major authorities that are, you know, federal agencies that are involved in arresting and detaining people, CBP operates basically at the border or within a pretty broad swath of the border, and ICE, which operates in the interior.

Speaker 2 Border arrests have been going down and down and down and down in the last month.

Speaker 2 And interior arrests, how many people ICE is detaining and arresting, and those bars just in the last week have now crossed.

Speaker 2 You know, here inside the United States, way away from the borders, is more of what we're doing in arresting people we think are immigrants than the border threat.

Speaker 1 Which was the original concern, which is a border itself. Exactly.
So every episode we get a question sent in from an outside expert. Let's listen to yours.

Speaker 13 Hi, I'm Ellie Hoenig. I'm CNN's senior legal analyst.
And my big question is this.

Speaker 13 In the end, are we all just at the mercy of the executive branch, more specifically of the president, more specifically of Donald John Trump?

Speaker 13 Look, it seems that every day some federal judge is coming out with some ruling excoriating the executive branch for not following the spirit, if not the letter, of their judicial rulings.

Speaker 13 We now have a judge talking about a contempt finding.

Speaker 3 We've had the Supreme Court fire a couple of shots over the bow.

Speaker 13 But in the end, are we all just hoping that the executive branch just does the right thing? Who's really going to enforce any of this?

Speaker 13 Does the administration even care about contempt findings and negative credibility findings by judges and the things that lawyers ordinarily care about?

Speaker 2 To sum up, are we all just fucked?

Speaker 13 Kara said I could curse.

Speaker 1 Okay, I did. I indeed said that and he wanted to.

Speaker 2 So

Speaker 2 I like and respect Ellie, but I find those questions really annoying and defeating.

Speaker 2 The short answer answer is no.

Speaker 2 The notion that that question to me, are we all just fucked, right? Suggests that there's nothing we can do. It is the most defeatist question that I can conceive of.

Speaker 2 And even if you think the answer is yes, what does that lead you to do with your life, right? Are you going to crawl into a hole now?

Speaker 1 That's a very good point.

Speaker 2 So the short answer is no, and the long answer is no, right?

Speaker 2 All kinds of folks are working,

Speaker 2 including judges of of both parties, are pushing back awfully hard, and some of their pushback is proving to be remarkably effective.

Speaker 2 So the administration is not complying with some orders, it's absolutely complying with other orders. And in the meantime, the signaling that the courts are sending have two effects.

Speaker 2 Number one, they ratchet up, they send a signal to members of Congress and the American people and tell them with greater and greater urgency, you know what, we can do this much, but the rest of it, you're going to have to take across the border, no pun intended, right?

Speaker 2 And the second thing the courts and the lawyers who are fighting in there are doing is modeling courage.

Speaker 2 And the number of people who live and are existing in remarkably or at least relatively much more comfort in this country.

Speaker 2 And I think here about the large law firms who were attacked by Trump unconstitutionally,

Speaker 2 right?

Speaker 2 Many of whom fought back and so far completely successfully.

Speaker 2 and some of whom, the wealthiest firms in the country, just said, oh yeah, you know, I'll strike a deal.

Speaker 2 I think that's misunderstanding the nature of what it means to preserve a constitutional democracy. It's a constant fight.

Speaker 2 We've had the luxury in this country of not feeling it, many of us individually, for most of our living experience. But we have tools.

Speaker 2 We have the courts and Congress, we have the media, we have institutions, we have universities, we have the vote, we have street protests and many other things.

Speaker 2 And if you are worried about what's happening and you haven't picked at least one of those options, then I worry that you're as much a part of the problem as the solution.

Speaker 1 That is an excellent answer. Caitlin, the administration is also, though, using every possible lever to make life miserable for immigrants who came here illegally and don't have status.

Speaker 1 Anyone over 14 is in the country for more than 30 days without legal status has to register in a national database. Failure to register is a crime.

Speaker 1 The IRS will now share immigrants' text data with ICE, which led to the former acting commissioner resigning.

Speaker 1 Doge and ICE are trying to get access to Medicare database in order to check addresses of the suspected undocumented immigrants.

Speaker 1 This idea of self-deportation, talk about this because it's an opposite strategy and to have a similar outcome, correct?

Speaker 3 It's a dream of hardline Republicans on the issue of immigration specifically that's existed for a really long time.

Speaker 3 This idea of making living in the United States without status so miserable that people will leave on their own.

Speaker 3 And for a long time, experts had really argued that that was impossible because what they were right about is that the pull to the United States is so strong, the one that we

Speaker 3 really fail to acknowledge that most people who arrive in the United States have a job right away.

Speaker 3 What we actually do with our dollars and with our behaviors is send the message that we would actually love for you to be here and we'd love to hire you and either pay you, you know, less than legal wages, sometimes maybe even no wages at all.

Speaker 3 Our behaviors as Americans show that we're actually really clamoring for more immigration.

Speaker 3 And so that pull factor makes it hard to actually reach a point of pushing people to self-deport, plus the obvious fact that you're talking about making people experience pain and experience harm to try to force their hands and force their behaviors in the same way that the Trump administration tried to do with the family separations that they carried out at the U.S.

Speaker 3 border. It's sort of a fundamentally inhumane approach, and yet here we are.

Speaker 3 And I'll be honest, in several different states, I have met people who've left, people who've been in the United States for decades, people who have American-born children who are in middle school and high school and don't even speak the language of their home country.

Speaker 3 But I have met people who are leaving. You know, and I don't think that it's going to be be the vast majority of undocumented immigrants, but I think

Speaker 3 going back to your first question, is the moment that we're in now different? It is very different.

Speaker 3 And so I think that's why, even though in the past, experts always argued self-deportation won't work, I am seeing people leave now because there's a difference between saying, you know, we'll charge people criminally, we'll put them in jail for a year or three years or seven years.

Speaker 3 I mean, even that is something that people are willing to withstand.

Speaker 3 But I think that in some ways, immigrants are kind of seeing the writing on the wall in the United States in terms of the erosion of constitutional protections, basic rights and freedoms, basic safety of your physical body.

Speaker 3 Immigrants are kind of seeing that first.

Speaker 3 And so people are making these really difficult calls that I then hear from their relatives, from their friends, from their employers are devastating in the community because it's like, why does this perfectly productive and contributing family have to leave?

Speaker 3 And how does it at all align with what Donald Trump promised when he was running for president? It doesn't.

Speaker 1 We'll be back in a minute.

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Speaker 1 So, let me ask you, Deborah, what role does politics play in the court system and the way the court's decisions are received?

Speaker 1 Is Trump wise to test the boundaries of the legal system in this way and defy court rulings on immigration cases first or potentially do the same on other issues?

Speaker 1 Because Because this is what he's attempting, correct? He's putting aside any constitutional and moral issues for the moment.

Speaker 2 Right. So it's a really interesting question, right? And I'm a legal authority, not a political authority.

Speaker 2 So I'm a little reluctant to say, but if I had to guess, right, I would absolutely think that if the administration were going to defy, going to test what happens if it defies a court order, it would pick an issue on which it thinks it has the public behind it, right?

Speaker 2 As opposed to an issue like the gutting of programs that are enormously popular, which is also happening, right?

Speaker 2 That it is toying with defiance.

Speaker 2 So I think they're savvy in that way. I think there's no question.

Speaker 2 I think it puts a greater burden, though, on the rest of us, including the media, including teachers, including everybody,

Speaker 2 to explain why this is about you. This is about us.
This is about power.

Speaker 2 It is about giving this one person the power to point at anybody he doesn't like for any reason and saying, I'm going to disappear you, and there is nothing anybody can do about it.

Speaker 2 And I think that case, which has nothing to do with immigration per se, it has to do with everything we value in the United States or as human beings, right?

Speaker 2 That case is up to us to make and make the case on our terms, not his. Right.

Speaker 1 So, Maria, these are just ju-dooling narratives of immigration that Kaylin and Deborah were talking about, especially now that deportation stories have dominated the the headlines.

Speaker 1 I'd love you to talk about your assessment of how the stories are going.

Speaker 1 And just for people not in 2021, Abrigo Garcia's wife, Jennifer, requested that a protective order against him at the time she alleged he beat her multiple times.

Speaker 1 She now says they had worked through their issues. But I've noticed this week, all the Trump administration are trying to really push this gang member idea.

Speaker 1 When the opponents of this champion a constitutional rights of someone like Abrego Garcia, who may or may not have done unsavory things. Is that giving MAGA the liberal foil they're looking for?

Speaker 1 Talk very briefly about narratives, and then we'll finish up with a couple more questions.

Speaker 7 Well, gangs in the United States were not created by Latinos.

Speaker 7 So this notion that every single Latino and anyone, any person with an accent who has a tattoo is an immediate gang member

Speaker 7 is ridiculous.

Speaker 7 I want to just shift for one second to

Speaker 7 show how somebody else can win from all of this negativity, right? Because internally in our country, everybody's suffering.

Speaker 7 I don't call it self-deporting because you're not seeing a judge.

Speaker 7 And I don't even know how that files into things because unless you're like walking out with a flag that says, I'm leaving the country, I'm undocumented, then it's like, how does that even enter into the numbers that Donald Trump has?

Speaker 7 But you know what? You know who's winning in all of this? It's actually a country that I didn't expect I would be able to say this, but versus the United States, it's Mexico.

Speaker 7 You want to talk about how you change a narrative and you don't do it just by words, right? It's actually in actions.

Speaker 7 So what has Claudia Schembaum done when Mexicans are arriving on flights, those who have been processed and deported?

Speaker 7 She has them arriving into the airport and they are social service agencies that are taking their information. They are being transported by car to the town that they left.

Speaker 7 Granted, this is performance politics, I understand. But as I said to Kamala Harris back when she was running, I was like, I'll take some performance politics from the Democrats.

Speaker 7 What's happened is that the American economy is going to tank as a result of this. And who gets all of these trained, bilingual, hungry workers? Mexico.
So it's no longer the American dream.

Speaker 7 Claudia Scheinbaum is basically offering now the possibility for the Mexican dream. Who ends up losing as a result? All of us in the United States of America, all of us.

Speaker 7 And for me, as somebody who was not born here, who has devoted the entirety of my career to reporting on this, it's a horror, Kara. It's an absolute horror.

Speaker 7 But I also know that this country, from my founding father of American journalism of conscience, Frederick Douglass, I know that this country has a long arc of resistance as well, and that most people in this country actually, when they're not fed lies, they are actually good people who would be more than happy to have immigrants living and working them with them.

Speaker 1 Just so you know, the Supreme Court is going to hear arguments on Trump plan to end birthright citizenship. They've asked the justice to lift a nationwide pause on policy to lower that.

Speaker 1 Trump has wanted to deport 1 million immigrants, wants to end birthright citizenship.

Speaker 1 He's going to need a lot of money to do so.

Speaker 1 I'd love you each of you to talk about which of these are the most important ones, whether it's birthright citizenship, whether it's the border shutdown, whether it's taking people who are here illegally.

Speaker 1 As the administration goes at all of these things and then it gets buried in lawsuits related to immigration.

Speaker 1 Caitlin, you're currently, let me start with you, writing a book about the impact of deportation on American society.

Speaker 1 How do each of you look at each of these cases, including now the birthright citizenship, as they're attacking it from various angles?

Speaker 3 They're all important, Kara, and I think it's really hard to rank them, right? So the border may be the most important for the American economy. Deportations will play a huge role there, too.

Speaker 3 If you really do get to a million or even 500,000 removals of people from the interior of the country, as Maria said, that will have a devastating impact on the economy.

Speaker 3 But the economy also really thrives on new entrants.

Speaker 3 And so that's why you had right out of the pandemic analysis showing that the reason the United States economy recovered better than any other in the world is because we had lots of immigration coming right out of the pandemic.

Speaker 3 But if you want to think about constitutional rights and our own protections and freedoms that are much bigger than immigration, you can look at the constitutional crisis cases like Kidmar's question of what's happening with Mahmoud Khalil.

Speaker 3 And then birthright citizenship. I mean, birthright citizenship is as foundational as it gets to the conception of what it is to be an American.
Who gets to be an American? And what does that mean?

Speaker 3 I mean, this it's a birthright citizen chip country.

Speaker 3 And that's what we've all grown up being taught and believing that if you are born in the United States, you're entitled to all of these rights and protections, including the right to vote.

Speaker 3 That going away, it's hugely significant because it opens the door to all kinds of additional deportations and removals, right?

Speaker 3 So now when an American citizen is picked up by ICE, as happens, it's an oopsie-daisy. And usually, ideally, they end up being released before an actual deportation is carried out.

Speaker 3 But if you can all of a sudden denaturalize a bunch of people because they were born in the United States, but they can't prove their parents had status, it could be extremely disruptive.

Speaker 3 Again, just creating a scenario where it's very scary to be a non-white person, a person with an accent who could be disappeared. And

Speaker 3 just kind of symbolically, in terms of who we are as a country, what we believe of ourselves. You know, this idea of a nation of immigrants, we've never perfectly lived up to that promise, of course.

Speaker 3 There are a million examples you can point to of places where we've gone wrong.

Speaker 3 And yet, it is a phrase that we all know, that we were all taught, and that to a significant degree has always been true in the United States.

Speaker 3 And so, for birthright citizenship to go away, especially amid all of these other changes, I think just completely shifts

Speaker 3 what we are to ourselves and to the rest of the world.

Speaker 2 Deborah?

Speaker 2 So in terms of the nature of the constitutional order in which we live, whether we continue to live in a constitutional democracy or not, I'd flag two.

Speaker 2 One are the sort of defiance of court orders cases that we've talked about, and we've talked about why I think those are so important and why they are.

Speaker 2 And I think we need to, we're in the midst of watching that play out, so we'll see. The other are the birthright citizenship cases.

Speaker 2 And the reason that is so central to the constitutional order in which we live is because it's the constitutional order as created after the catastrophe of the Civil War,

Speaker 2 not from the 1787 Constitution, the 1868 Constitution, right?

Speaker 2 And the worst Supreme Court case, arguably, that the Supreme Court ever decided was Dred Scott versus Sanford. It was a contributing cause to the Civil War in the first instance.

Speaker 2 And Dred Scott versus Sanford said, black people aren't citizens, right, by definition.

Speaker 2 And the 14th Amendment, all of it, right, but particularly the birthright citizenship clause was passed to overturn that decision, right?

Speaker 2 We fought a civil war, we amended the Constitution, and we have preserved and upheld that particular right ever since as a statement of who we are constitutionally, right,

Speaker 2 literally, as a people, ever since.

Speaker 2 If we challenge challenge that we really challenge the entire order not back to the 1960s right not back but back a century and a half and that's i don't think that the supreme court is gonna uphold it i don't think they will i hope it loses nine to nothing it might um but that's one of the ones that that i think we should all be watching all right maria and then i have one final question for all of you all of the above and who would have thought right that we are going to be counting on

Speaker 7 justice kavanaugh amy comey barrett and uh and she's a liberal now

Speaker 2 thank you

Speaker 7 she's been hanging around with cagan and so do my ear too much who would have thought that our we would be resting on that so i all of the above and i'm just so thankful for great journalists for great academics for lawyers who are great lawyers and for judges that is basically that along with people power honoring dolores huerta um that is what is going to potentially save this country.

Speaker 1 Okay, so then the last question for all of you: what is the ultimate aim of this political project of Trump's?

Speaker 1 I did an episode on his tariffs last week, and one panelist said that Trump is trying to create an autarky or a totally self-sufficient economy. I didn't know that word, but there it is.

Speaker 1 It's not obvious how a country would function if you got rid of most imports and immigrants.

Speaker 1 If you had to say, what is going on here, besides rank racism, and the rest that goes with Trump,

Speaker 1 what do you think the goal is here? Caitlin, Deborah, and then Maria.

Speaker 3 My observation of Trump's goal is power. Trump has waffled when pushed on specific immigration issues like DACA, like dreamers, or even like families, how to deal with children and families.

Speaker 3 When he's really pushed, he waffles. And so my impression is that the reason he clings to immigration is because he sees how popular it makes him.

Speaker 3 And I think it makes a lot of sense when you've got a bunch of people who are mad in a country for all kinds of different reasons and you point them all to one scapegoat.

Speaker 3 It all of a sudden completely absolves him of responsibility and actually kind of puts him on the side of everybody who's mad and said, like, you know, it's those people over there who are the cause of all of your problems, whether they're economic problems, problems with schools, whatever.

Speaker 3 So he realized that immigration was very strategic in service of this goal of overall power. And of course, I'm not breaking any news here.

Speaker 3 There are lots of people who've written about the ultimate goals of people like Stephen Miller, Miller, the primary architect of his immigration policies.

Speaker 3 He's somebody who has a long history of a much different goal, you know, of not liking immigrants, not wanting immigrants in the United States, and in particular, non-white immigrants.

Speaker 3 And I think there are

Speaker 3 people, him included, for whom the goal is really a racial one and for whom this is much more about white supremacy.

Speaker 2 Deborah? I completely agree that the question is about power. He wants autocratic power, I think is the word that I use.

Speaker 2 And he pursues it by instilling fear, whether it's fear among immigrants or professors or law firms or whomever it is. And he wields it by using economic tools.

Speaker 2 He wields it by saying, I'm going to impose tariffs on everybody and I will negotiate out of it. He wields it by saying,

Speaker 2 gee, this is a wonderful university you have. It would be a shame if if it burned down.
I can sell you fire insurance.

Speaker 2 And he wields it through the immigration power by saying, let me show you what I can do to you if I don't like what you say.

Speaker 2 And he only has to set a few examples in order for the chilling effect to work against many. It's a set of tools that are deeply familiar to autocrats all over the world.
Putin uses them

Speaker 2 and all kinds of other dictators use them. And he's a little more hand-fistedly, a little more vulnerably in a country with a little longer tradition of democratic resistance.

Speaker 2 He's trying to do exactly the same thing.

Speaker 1 Maria, finish up.

Speaker 7 Yeah, wrap it up. Like, take us away in 30 seconds.
Look. So I actually don't think Donald Trump is that sophisticated at all.
And I don't think the people around him are that sophisticated.

Speaker 7 I think they're making a lot of mistakes in the entire project. And that's probably going to come back to haunt them.

Speaker 7 The question of it being, of the motivation being, you you know, like, we want an all-white country. I'm like, well, good luck to you.

Speaker 7 Because that ship has sailed, the fastest growing demographic group in the United States, and not by immigration. It's Latinos, Latinas, and Asian people, not by immigration, by natural births.

Speaker 7 I guess because in the midst of everything, we still like to get it on. Thank God.
We still believe

Speaker 7 that love and possibility can exist in this life. So that ship has sailed, Donald Trump and all of your white supremacist people who follow you, because this country is not going backwards.

Speaker 7 Without us, you cannot succeed. So it's going to be terrible, but you cannot walk back what this country is on its way to becoming.

Speaker 1 On with Kara Swisher is produced by Christian Castor Wissell, Katera Yoakum, Dave Shaw, Megan Burney, Megan Kunane, and Kaylin Lynch. Nishat Kuroa is Vox Media's executive producer of podcasts.

Speaker 1 Special thanks to Eric Litke. Our engineers are Rick Kwan and Fernando Aruda, and our theme music is by Trackademics.
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