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