Amicus on Cooper v. Harris, and Jorge Barón on the Northwest Immigrant Rights Project.

Read What Slate’s Amicus Podcast Had to Say About Cooper v. Harris

Read What Slate’s Amicus Podcast Had to Say About Cooper v. Harris

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June 1 2017 10:43 AM

Clarence Thomas’ Out-of-Left-Field Blow to Gerrymandering

Read what Slate’s Amicus podcast had to say about Cooper v. Harris.


This is a transcript of Episode 69 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 Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the law and the courts and the Supreme Court. I’m Dahlia Lithwick.

If you’re a longtime listener of this show, you’ve probably noticed a little shift away since, say, last fall from what had been a pretty single-minded focus on the show on the highest court in the land. With law-related fireworks going off all over the place since inauguration, we’ve been trying to do our best biweekly to keep up with everything.

Before this Jim Comey situation blew up, a lot of those fireworks had to do with Trump’s possibly unconstitutional travel ban, and today on the show we have for you yet another installment in Travel Ban-O-Rama. Turns out the Justice Department is actually going after some of the immigration attorneys in Seattle who so happened to have been involved on behalf of immigrants in the travel ban wars earlier this year.

But first, the court. This week, with the president abroad, and the budget and health care scoring in, everything else happening here at home, you may have actually missed a surprising, big, huge decision that came down from the Supreme Court which still is somehow doing stuff. The case involved race and gerrymandering, and we actually covered it on the show. What was surprising was a very odd grouping of justices in the majority.

This was a case that we covered when it was argued in December. It posed a question about whether two gerrymanders approved by the North Carolina legislature violated the 14th Amendment because they were driven by race considerations instead of just political considerations. Keep that in your head. We’ll get back to it.

Eight justices heard the case, Cooper v. Harris. Neil Gorsuch was not yet on the court. On Monday, all eight of them agreed that one of the majority/minority districts in question, District One, was in fact unconstitutionally gerrymandered, but as to District 12, the court split 5–3. The swing vote joining the courts for Democratic nominees to strike down this gerrymander was, wait for it ... liberal icon Justice Clarence Thomas.

Joining me to chew over this surprising result and what may be coming down the pike soon at the Supreme Court on this issue of redistricting and gerrymanders is my Slate comrade in arms, Mark Joseph Stern.

Mark, it’s always a joy to have you on the show. Welcome back to Amicus.

Mark Joseph Stern: Always a pleasure to be in the barricades with you, comrade.

Lithwick: OK. So here’s my question, Mark. First of all, this is not the first big voting rights bombshell from the high court. It’s not even the first big voting rights decision this month. Can you just back up and tell us about last week: the justices decline to hear another big voting case out of North Carolina, and you are our North Carolina correspondent. Tell us about that one and what the chief justice had to say about it.

Stern: Yeah. Last week the justices declined to review a lower court decision from the 4th U.S. Circuit Court of Appeals, striking down North Carolina’s omnibus voter suppression law. I call it that because it slashed early voting, it cut the number of methods by which people could vote. It created this very stringent voter ID requirement. And the 4th Circuit had ruled that the entire law was unconstitutional and unlawful under the equal protection clause in the Voting Rights Act because, and this is a quote from the opinion, “It target African Americans with almost surgical precision.”

One would probably expect Justices Samuel Alito, Clarence Thomas, Chief Justice Roberts to want to take a look at that decision from the 4th Circuit and maybe give North Carolina another chance to prove themselves and throw up enough pretext over their voter suppression law to make it pass legal muster, but instead the court unanimously turned away North Carolina’s appeal, said, “We are not taking this case,” and effectively allowed the 4th Circuit decision to stand as precedent moving forward.

Lithwick: Precedent in the 4th Circuit though, right? This does not have national implications, but it certainly smacks the heck out of North Carolina, correct?

Stern: Yes, that’s right. It smacks the heck out of North Carolina. It stands as precedent for the other states in the 4th Circuit, including South Carolina and West Virginia, and one might hope that the decision will be persuasive to other circuit courts that are looking at these issues, but Chief Justice John Roberts attached a strange little statement to the court’s decision not to hear the voter ID case out of North Carolina and said, “Look, this isn’t really about the merits of the case. We don’t think that this case was necessarily correctly decided. We just think that it’s way too confusing for us to take because during the course of the appeal from the 4th Circuit, former Republican governor Pat McCrory was voted out of office in North Carolina and replaced by a Democrat who refuses to defend the law, and so there is this complicated question about who actually has standing to defend the law.”

The chief tried to make it very clear that this was not about supporting the 4th Circuit’s decision in any way. This was just about a technicality and the justices will have their chance to sink their teeth into another voter ID case coming pretty soon.

Lithwick: Before we talk specifically about Monday’s case, I want you to just help us understand. This case that we’re going to talk about now is about racial gerrymanders, but the actual districts in North Carolina are so crazy, Mark, and so octopus-y, they’ve actually been at the heart of, am I right, four earlier gerrymandering cases? These districts, they don’t die.

Stern: Yes.

Lithwick: Why is this?

Stern: Well, this is actually the fifth time that District 12, the one that the court divided on, has come before the Supreme Court itself. The reason why is that when we talk about racial gerrymandering, there are really two forces weighing on states as they draw these districts. On the one hand, there is the equal protection clause, which prohibits states from using race as a predominant factor in districting. You can’t use voters’ race as the key factor when you’re drawing these lines.

On the other hand, there’s the Voting Rights Act, which has been interpreted to bar states from redistricting in a way that can dilute minority voters’ voting power. So, some states for a time—and we’ll get into this as we talk about the specifics of the case—actually went out of their way to gerrymander on the basis of race to comply with the Voting Rights Act. The court said, “You’re not allowed to do that.” Other states have tried to ignore race altogether, said, “We’re just going to leave it out of the equation,” and then gone ahead and used partisanship, and the court said, “We’re not so sure about that.”

There’s a lot of very confusing case law here that doesn’t put a clear path forward for states that want to redistrict legally while giving the party in power a significant electoral advantage.

Lithwick: Why don’t you explain the precedent? Because that’s, I think, what’s confusing. We’ve got a line of cases that do exactly what you’re describing, Mark, which is, take race into account except when you don’t, and use party instead of race except when you don’t. Can you just help us understand what needle it is that the states are trying to thread when they create these districts?

Stern: Yes. For the most part, the answer is simple. The states are trying to keep the majority party in power. That’s what they’re doing, and they want to do it in a way that passes muster at the court, which means it can’t fully dilute black voters’ power. At the same time, it cannot be so race conscious that it qualifies as a racial gerrymander.

This problem sounds really, really difficult, and I’m framing it in a way that makes it sound almost impossible. In fact, it’s not that hard, and plenty of states have figured out a way to do it, just not in the South. The South is the area where a lot of these racial gerrymander cases come up, and the reason why it becomes so difficult is that where we stand right now, the court says that racial gerrymanders are unconstitutional, but partisan gerrymanders, gerrymanders that are only designed to disenfranchise voters of the minority party, those are OK.

For decades, we have seen Southern states use race as a proxy for party. This is exactly what North Carolina did in this case. They actually divided their voters on the basis of race, but when they went to court, North Carolina said, “We weren’t really thinking about their race and trying to discriminate against them for being black. We were simply assuming,” correctly, for the most part, “that black voters will be Democrats, and it’s the Democrats we were really trying to stick it to, not the black voters.”

Lithwick: This brings us to Elena Kagan, and her quite astonishing majority opinion for what turns out to be five justices in the majority. She really, in some ways—and I think you pointed out even in your write-up, in a footnote—changes everything and somehow gets Clarence Thomas to sign on. What is Elena Kagan doing to shift the ground we’re on?

Stern: She changes everything in footnote 7, if anyone wants to go run to the PDF and look this up. It’s really worth digesting carefully because what Justice Kagan says is that if a state uses race as a proxy for party, uses race to determine the political affiliation of a group of voters, that that in itself is still a racial gerrymander. It doesn’t matter if it’s made more sellable by the fact that it’s divided by party, allegedly, according to the state. It doesn’t matter what pretexts are layered on top of it. If you use race in any capacity, if you’re using it to try to figure out who the Democrats are and disadvantage them, you are still using race, and that means that you have committed a racial gerrymander that is subject to strict scrutiny, and almost certainly doesn’t pass constitutional muster.

Lithwick: Tell us again, because it sounds like what you’re saying is so wonky, but this is a big honking deal, Mark. Tell us why.

Stern: It’s a huge deal because for decades, really, the case law here is infuriating the voting rights activists because, for decades, states like North Carolina have gerrymandered on the basis of race and then gone into court and said, “All we were really doing was sticking it to Democrats.” They can’t do that anymore. Not after Monday’s decision. Monday’s decision stands for the proposition that when a state divides its voters on the basis of race for the purpose of redistricting, it has pretty much broken the law. That is a huge step forward. That is a really big deal, and I think it will probably already alter the outcome of a lot of gerrymandering litigation that is in the courts at this point.

Lithwick: OK, so this brings us inexorably, my friend, to Clarence Thomas, because the initial reaction on Monday was, “Ah! Is he a liberal?” Or, more pointedly, “Does he just not read the footnotes?” But you and I, I think, agree that there was a lot more going on than that, and that Clarence Thomas is, in fact, not being wildly inconsistent by joining the four more-progressive members of the court this time, right?

Stern: Right. I think Clarence Thomas is probably the most consistent justice when it comes to racial gerrymandering because he has a long memory and he remembers back in the ’90s when these cases had totally flipped political issues.

Back then, North Carolina was run by Democrats, and Democrats were actually gerrymandering the states in an effort to create black majority districts so that black voters could choose their own representatives. This was something that the Justice Department saw as mandated by the Voting Rights Act at the time. This was a commonly held notion that, in order to comply with the Voting Rights Act, a state has to create certain districts that have a lot of black voters, usually a majority of black voting-age population, so that they can choose their own representative. Because that’s what people thought to be a voting rights victory in the 1960s when this law was passed.

Back then, when racial gerrymanders were seen as a form of affirmative action for blacks, Clarence Thomas hated it. The conservatives hated it. Clarence Thomas was one of them. He thought that it was benign racism is still racism. He treated it the same way that he treated affirmative action in college in law schools. He said, “If you’re taking race into account, you’re breaking the law,” and he continues to hold that view today. Even if his fellow conservatives have flipped. Now they’re saying, “Sure! Use race. Whatever. It’s all good.” Thomas is still righteously pissed off at any state that takes race into account, and he’ll follow that principle even when it leads him to a liberal outcome.

Lithwick: He’s really the last consistent justice on this. This is an example, I think you wrote, of everybody flips and everybody has to backpedal a little, and Clarence Thomas gets to virtuously say, “I am for race-blind, wherever that leads me. I am for strict scrutiny whenever race is used,” right?

Stern: Yes, that’s exactly right, and I think he gets a well-deserved victory lap in this case because he’s getting a lot of credit from corners he doesn’t usually get credit from. You know what? He’s earned it. He’s been sticking to his guns for decades, and finally, in this instance, it brought him some well-deserved acclaim.

Lithwick: What does it mean going forward? Does Elena Kagan have Clarence Thomas in her pocket, sure thing, now he’s on board for any opinion she writes on gerrymanders?

Stern: Well, nobody has Clarence Thomas in their pockets, unfortunately. He’s always a wild card, and no, the short answer to your question is that the bulk of gerrymanders in this country are not really racial gerrymanders. They are partisan gerrymanders. They are drawn by the party in power to disempower the minority party, and in a lot of states like Wisconsin, they are not drawn along racial lines. They are simply drawn along partisan lines.

The issue here is that every conservative member of the current court, almost certainly including Justice Gorsuch, seems pretty skeptical of the halting, purely partisan gerrymanders. In fact, Justice Alito’s dissent has this weird little encomium to partisan gerrymanders. He views them as nothing more than politics as usual, and says it would damage the courts and damage the country to wade in and try to stop them.

Sadly, Justice Kennedy joins Justice Alito’s dissent, and Justice Kennedy’s vote is going to be absolutely critical to any effort to strike down partisan gerrymanders as unconstitutional. Monday’s decision brought us a lot of good news in terms of racial gerrymanders, but it’s not clear that it extends much farther beyond the fact pattern in the case itself.

Lithwick: Here’s your opportunity to talk about Gill v. Whitford. This really is the blockbuster case that does, I think, try to tackle what you’re describing, the larger problem of partisan gerrymanders. You’ve just said it, but we can’t say it enough on this show. What Kennedy thinks about partisan gerrymanders is almost the only game in town. How much do you read into Justice Kennedy’s decision to join with Alito in this case, and what does it signal going forward when the court really gets a case that may, once and for all, sort this issue out?

Stern: It really worries me because I think that case will come next term in Gill v. Whitford, which is the challenge to Wisconsin’s gerrymander.

Lithwick: Stop and talk about that case for a minute, Mark. Tell us what that’s about.

Stern: That’s a challenge to Wisconsin’s gerrymander, alleging not that it was a race-based gerrymander, but that it was so extremely partisan that it burdens the rights of Democratic voters who no longer had any real power to choose their preferred representative. Their vote had just been diluted to such an extreme extent that they had lost their representational rights. The plaintiff won in the court below, and there is a funny kind of appeals process that will almost certainly force the Supreme Court to take the case, and it will probably be next term.

The question here is what Kennedy will do because, in 2004, Kennedy said he thought partisan gerrymanders posed grave constitutional concerns, but he also said that he wasn’t certain how you could measure gerrymanders and create a consistent tool for determining which are too partisan and which are within normal political limits.

Lithwick: Gill presents us with a formula, right? We actually have a way to measure, and the hope was, “Hey, Justice Kennedy. You said do my homework. Here’s my homework. I’m showing you a formula for finding partisan political gerrymanders!”

Stern: Yes, that’s right. These two really brilliant academics created something called “the efficiency gap.” It’s a pretty simple equation. I won’t explain all of it, but what it basically does is measure how many wasted votes there are in each election. Basically, how many votes were cast for the winning candidate that weren’t necessary for that candidate to win, and how many votes were cast for the candidate who didn’t win. There is this comparison between the two, and it churns out a number. These two academics weighed, measured, analyzed elections from that last four decades and found that the usual efficiency gap that puts a party permanently in power is seven, so if a state’s efficiency gap exceeds seven, then the majority party has probably locked in its power to such an extent that, no matter how hard the minority party works, it will never be able to retake power.

That is the exact kind of thing that Kennedy said he was looking for back in 2004. An equation. You plug in the numbers, you run the formula, you come out with a result, and it’s either yes or no. This is constitutional or it’s not. It’s a lot like what we already do in “one person, one vote” cases where we measure districts to make sure they have roughly equal population sizes, and there’s no reason why it would introduce extreme complexity to the partisan gerrymandering area.

But Kennedy’s decision to join Alito’s dissent, that’s troubling because he seems to be drifting in the wrong direction here, saying, “Hey, I’m a little concerned about courts and federalism and states’ rights. Maybe we should just cool down here and let the partisans keep gerrymandering.” That’s really bad news for voting rights activists, and I certainly hope that this was just a blip for Kennedy and not some kind of real change of heart.

Lithwick: Mark Stern covers the courts at Slate, and he is, as I mentioned, basically the governor of North Carolina at this point in terms of covering North Carolina for Slate.

Mark, thank you so very, very much for joining us this week.

Stern: Always a pleasure.

* * *

Lithwick: Last week, Rachel Tiven wrote a pretty disturbing piece in the Nation that featured the Northwest Immigrant Rights Project—that’s the NWIRP. The NWIRP is a well-known, well-respected nonprofit in Seattle. They represent several thousand immigrants a year in deportation proceedings, and they really came to take a starring role in the early days of litigation around Donald Trump’s travel ban.

Well, that group received a strange cease-and-desist letter in April from the Justice Department threatening disciplinary action unless they stop representing clients and close down the entire asylum advisory program. Weird.

Joining us to help understand what that was about is Jorge Barón. He is the executive director of the NWIRP in Seattle.

Jorge, welcome to Amicus.

Jorge Barón: Thank you. A pleasure to be here.

Lithwick: Can you just help us understand—even before we talk about this letter—can you tell us what NWIRP does? I think folks started probably really hearing about you during the travel ban era, but can you give us a little background?

Barón: Sure. We’re a nonprofit that has been here working in Washington State for the last 33 years, and over time, we’ve come to grow into a relatively large nonprofit working on immigration legal services. Most of our services are focused on individual cases, helping people navigate the immigration system from an asylum case to deportation hearings to a number of other immigration cases, and then we also do systemic advocacy, where we’re trying to challenge policies like the Muslim ban, and other things as well as doing a lot of community education here locally in the community.

Lithwick: Can you help us? Because I think folks probably don’t quite realize that if you’re an immigrant and you’re in the middle of a deportation proceeding, you actually don’t have a right to counsel. You’re in this no-man’s-land where you desperately need legal assistance and you’re not entitled to it, right?

Barón: That’s exactly right, and that’s the heart of the issue here is that people who are facing this deportation hearing, and immigration court looks like any other courtroom that you might think of. You have an immigration judge with a black robe. You have a government prosecutor. What they call the trial attorneys from Immigration and Customs Enforcement, who are making the case as to why this person should be deported. And then on the other side in the criminal justice system, you would see a defense attorney, and if the person can’t afford an attorney, it would be a public defender.

But in the immigration court system, there is no public defender system. You can bring an attorney if you can afford one, but if you can’t afford an attorney, you don’t get to have one unless you can get help from a volunteer or a pro bono attorney or one of the nonprofits. But the challenge is that nonprofits across the country do not have anywhere near the resources that we need to be able to represent everybody who needs assistance in deportation cases.

Lithwick: I think the Nation article put it nicely. They said if you are an immigrant facing deportation, it’s kind of like you’re at a death penalty proceeding, except it’s being conducted as though it’s traffic court. Your whole life is in your hands, but you’re being funneled through pro se, and you don’t have a ton of resources. As a result, all these groups spring up, like yours, that are trying to patch that hole, correct?

Barón: That’s exactly right. We would love for everybody to have an attorney in the whole case. I think that would be the ideal scenario, but given the reality that we have where we don’t have the resources to help everybody as fully we would want, we’re providing this limited assistance to a lot of people. Just to give a complete example, somebody who might be facing deportation wants to pursue an asylum case before the immigration court. We might help that person understand how to fill out an asylum application that they’ll then present to the immigration court on their own later on, and we’ve been doing this, and many organizations around the country do this regularly, for many years without trouble until we got this letter from the immigration court system.

Lithwick: OK. Now I need you to explain—before you tell me exactly what the cease-and-desist order says—I need you to explain what the 2008 rule is. The Justice Department rule that they now seem to be weaponizing against you and your work. What was that trying to combat?

Barón: Sure. That regulation came down, as you mentioned, in 2008, so nine years ago. It was meant as a set of reforms that the Department of Justice enacted to try to fight back against issues of people trying to take advantage of community members, in particular, something that is often referred to in the immigration world as “notario fraud.” These are people who are not attorneys who use the confusion in a lot of folks from Latin American countries, and in those Latin American countries, being a notario is an attorney with highly specialized skills, but of course here in the U.S., being a public notary doesn’t require legal training. So folks in the community perceive that these folks have some sort of legal training and they might turn to them for assistance when they’re not actually authorized to practice immigration law.

The regulation was meant to say that if you are going to complete any kind of documentation in these cases that is going to be presented to immigration court, you need to submit a notice of appearance before the immigration court, and disclose the fact that you’re doing this.

The challenge with that is when you enter a notice of appearance, you are committing to representing the person in the entire case, so at the time that the regulation came out, many of us in the nonprofit sector pointed out that there was this gap that, if we were required to provide notices of appearance, this would be a problem for nonprofits.

There’s an unwritten understanding, and many of us had conversations with the local immigration courts, and they said, “As long as you disclose what you’re doing, that shouldn’t be a problem,” and in fact, that’s how we operated for the last nine years where we actually put down our name and said, “This application was prepared with the assistance of Northwest Immigrant Rights Project,” and that way, we cured that concern of the fact that there was somebody who was trying to take advantage of this individual by fully disclosing that we were helping the individual pro se. That arrangement worked out fine until April of this year.

Lithwick: OK. So table is set. April of this year, in the mail comes a cease-and-desist that says now we’re going to treat you different. Now we’re going to hold you to this 2008 rule. And the claim is what, exactly? They’re saying that you’re not all in? You’re not being transparent enough, and you, too, may be committing fraud, Jorge?

Barón: They didn’t say that we were doing anything in terms of the actual substantive help that we were providing the individuals. They didn’t claim that in any way the assistance we have been providing has been deficient or problematic. They just said, “You’re not complying with the strict letter of the rule that says that if you provide any type of legal assistance that constitutes legal advice and preparation and practice before the courts that you have to then enter this notice of appearance, which of course commits you to representing people fully.”

It immediately had an impact on us because we had to stop and pause on a lot of work that we do day in and day out with people who are facing deportation proceedings, so we quickly responded to the immigration court trying to clarify, saying, “We’ve been doing this for a long time, and we don’t understand. This is limiting all these things. Can you please clarify and take this back?” Unfortunately, they did not, and that’s when we decided we needed to move forward in litigation to be able to preserve both our rights and the rights of our clients.

Lithwick: Jorge, it’s worth pointing out the cease-and-desist doesn’t go out to every immigration project in the country. It’s yours. That’s it.

Barón: Right. It was very much directed at us, and I think one of the first things we did was we reached out to a lot of our colleagues across the country because we thought, “Well, maybe this is happening across the board and other folks are getting these letters.” Nobody else had received that letter.

Lithwick: You actually file suit, and you claim what? What is the substance of the legal claim when you seek to enjoin this?

Barón: Our claim has been that the way that this is being applied, and the way that the regulation is set up is a violation of primarily our First Amendment rights. That’s as advocates. There’s a long line of cases at the Supreme Court level that talk about the right of association, and the freedom of speech of lawyers, particularly when we’re engaging in advocacy related to a matter of such significant public concern as immigration. And that the government is sort of saying, “Well, you can’t speak on the subject unless you do it the way that we tell you to do it,” and that obviously raises significant First Amendment concerns.

There’s also an argument that we’ve raised about the fact that the regulation of the practice of law is generally done at the state level, and you have to be licensed in a state to be able to do that, so the immigration system relies on the regulation of the practice of law by the states, but this is an attempt to impose a requirement that actually the states don’t have. Our Washington State Bar Association here has made it very clear that it’s completely ethical and appropriate for attorneys to provide limited legal assistance, and so here come the feds saying, “No, actually. You can’t do that.” We’ve also raised a claim that this is a violation of the Tenth Amendment in that it’s having the feds impose different rules from what the state has considered to be appropriate.

Lithwick: Huh. How very red state of you.

Jorge, here’s my question. You have a hearing before U.S. District Court Judge Richard Jones. Does the Justice Department allege that you’ve done anything wrong at this hearing? Do they come forward and say, “Man, these guys really are basically notarios, and they are misleading clients?” Or they just shrug and say, “Well, this is the rule, and now we’re going to enforce it?”

Barón: It was definitely the latter, and in fact, Judge Jones, during the hearing, certainly pressed the government’s attorney, saying, “Well, do you have any evidence that they’ve done anything inappropriate, or they’ve done anything deficient?” The government attorney’s response was simply, “I don’t have any information about that.” I think he tried not to say no, but obviously, the ultimate response was that they didn’t have any evidence that we’d done anything wrong.

We agree that there is a role for the federal government to make sure that people are not being taken advantage of, but the problem here is that, as we made the case in court, this is actually creating a situation that is going to create even more problems because if people don’t have the way to get assistance, to get this limited assistance by legitimate nonprofits and attorneys, then they’re going to have nowhere else legitimate to turn to, and they’re going to turn to the folks who do want to take advantage of them. To the extent that they’re trying to prevent fraud and prevent unauthorized practice of immigration law, this is actually very, very counterproductive.

Lithwick: Jorge, last week Judge Jones actually grants your injunction. It’s actually a nationwide injunction, so you’re back in business. What happens next?

Barón: Next we’re going to have a preliminary injunction briefing, and we hope that Judge Jones will maintain the current situation and allow not only us but our nonprofit partners around the country to continue to provide this form of limited assistance to folks who desperately need it.

Lithwick: I have to ask you, because it feels to me that this is very much of a piece of the Jeff Sessions approach to Justice Department business, which is using a law that is intended to do one thing and using it to do exactly the opposite. I’m thinking of the ways in which, for instance, their claims that, “Oh, we’re using the Voting Rights Act to help make sure that we can suppress the vote.” This feels like it’s of a piece with that general theme, that you use a law that is intended to smoke out fraudulent conduct among immigration law pretenders and stop actual immigration lawyers from helping actual immigrations, right?

Barón: I think we’re certainly concerned that that’s the case, and of course, we don’t know exactly what’s happening inside of the Department of Justice. I will say that Judge Jones expressed concern about the timing of all of this because he asked the government, “Well, this regulation was enacted in 2008.” We clearly said we’ve been doing this. We’d talked to the local immigration court in 2009, 2010 about this, and why is it that, all of a sudden, only now are you coming after this group? I think the government didn’t really have a satisfactory answer to that question.

In the order that Judge Jones issued, he talked about his concerns with potentially targeted enforcement. I think part of the rationale that he was expressing was that the way that the regulation is being applied is so vague that it gives the Department of Justice a tool. It’s very unclear, so it can pick and choose who they want to come after in a potentially retaliatory manner. We certainly are concerned about that and we’re glad that Judge Jones stepped in to prevent this from happening.

Lithwick: That leads me to ask the question that I think is at least implied, Jorge, in the article in the Nation, which is, “Why now?” Why did the Justice Department choose this moment to go after your group?

Barón: I think the Nation article was suggesting that this was potentially a direct retaliation because of our work around the travel ban. The honest answer is we don’t know if that’s the case. I think there is a lot of circumstantial evidence that it could be that because of the timing of when this happened, the fact that our organization is the only one that was targeted this way, even though this is the kind of activity that gets engaged by many other nonprofits around the country. So it is certainly a concern. I think it’s a concern that Judge Jones seemed to have in the hearing, and I think that’s deeply problematic because I think that what we’re doing is advocating for our clients doing legitimate work in front of the federal courts asserting people’s rights, and it would be deeply disturbing if, because of that advocacy, the government is going to use other tools to try to target nonprofit organizations. It is a concern that we have that it could be.

Lithwick: I think NWIRP got a lot of attention last week around this cease-and-desist order, but this comes about in a context. This comes about in a moment when there is new ICE enforcement priorities. There’s real, on-the-ground work to be done. There is a huge uptick in what you need to be doing. Can you talk a little about the backdrop of what’s happening in your day job when you’re not fighting off cease-and-desist letters?

Barón: This is exactly what we’ve been trying to respond to. There has been already and has been reported a big increase in the number of arrests that Immigration and Customs Enforcement has made since the president took office. This is on top of a very significant number of people who are already in the deportation process. We’re seeing an increasing level of people being funneled into the deportation system, and we are, like our nonprofit partners around the country, getting more and more calls from community members saying, “My cousin just got picked up by immigration.” “My neighbor ...” “Somebody in my congregation ...” And so we’re fielding these calls, and the resources are particularly strained to be able to respond to people who need immigration legal assistance.

In that context, it particularly feels like adding insult to injury to then say we’re taking away one of the key options that you have to be able to provide assistance in this context. It’s the equivalent of there being a mass casualty event and you’re a doctor trying to stem the bleeding from a number of different patients, and somebody comes in and tells you, “Actually you can’t help all those people. You’ve just got to stick with one until you get them to the hospital, and you can’t touch any of the other patients because you might be sanctioned otherwise.” It just seems tremendously unfair and very concerning. We think that the government should be trying to identify ways to fund representation of people in deportation proceedings. I don’t think in the current political environment that is likely, but the very least they could do is not get in the way of people who are trying to provide assistance in this context.

Lithwick: Jorge Barón is the executive director of the Northwest Immigrants’ Rights Project, and he joined us today from Seattle.

Thank you, Jorge.

Barón: Thank you so much, Dahlia. I appreciate it.