This is a Nov. 11 transcript 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, Slate’s podcast about the Supreme Court and the law. I am Dahlia Lithwick. I cover the courts and the law for Slate and this week marks the one-year anniversary of the election of Donald Trump to the presidency. Sit with that.
Later in the show, we’re going to talk to Becca Heller. She’s co-founder of the International Refugee Assistance Project, or IRAP. She actually briefly became the face of the entire Lawyers Rebellion that iconic moment on Jan. 27 of this year when, strange as it sounded at the time, thousands of Americans descended on the nation’s airports to yell, “Let the lawyers in.” Not something we’re used to hearing, but lawyers have actually been the bulwark against so many parts of what is most terrifying about Donald Trump and the attack on the rule of law. So, we just wanted to check in and see if Becca Heller is tired.
But first, before we do that, a serious point. This week also marked yet another mass shooting when a man armed with an AR-556 rifle entered First Baptist Church in Sutherland Springs, Texas, and proceeded to butcher at least 26 people and injure 20 others, so many of them children. By the time you hear this podcast, that may be old news to you or maybe that shooting will have been superseded by another. But while we spend unholy amounts of time in this country debating and bickering over moments of silence in Congress or whether it’s OK to tweet out our hopes and prayers, we don’t always focus our attention on where it might more usefully be directed and that is the Second Amendment, the courts and the law, and how it is we came to be a nation of guns and the role that the courts have played.
So, this week, our first guest is Adam Skaggs. He serves as chief counsel at the Giffords Law Center to Prevent Gun Violence. He previously led the Fair Courts Project at the Brennan Center for Justice at NYU Law School. Adam, welcome to Amicus.
Adam Skaggs: Thanks, Dahlia. Thanks for having me.
Lithwick: I wonder if you could just start by telling listeners, who may not know what it is, a little bit about the Giffords Law Center.
Skaggs: Sure. Giffords Law Center is a nonprofit legal organization that works to find solutions to the American violence problem. We were established 24 years ago after another horrific mass shooting, this time in a California law firm, and the legal community of San Francisco came together and established the organization. More recently, we have partnered, teamed up, joined forces with Gabby Giffords and her husband, Mark Kelly, and obviously, Giffords Law Center continues to advocate for policies that will do something about this problem.
Lithwick: Can you set the table for listeners? In the wake of every single national gun tragedy in this country, we have a long conversation about how we wish we could regulate guns, it’s really terrible, but our hands are tied because #SecondAmendment and this view that there’s just nothing to be done about anyone because no regulations of any sort can help us get out of the bind that we’re in. How did we get into that strange box where people actually want, I think, more gun regulation and are convinced that nothing can be done about it?
Skaggs: Well, I think that you’re absolutely right that Americans want sensible gun regulations. If you poll the public—whether it’s background checks to prevent guns from falling into dangerous hands, whether it’s regulations of assault weapons and large-capacity magazines, the sort that we’ve just seen used to tragic effect in Las Vegas and in Texas—large majorities, vast majorities of Americans want these types of regulations and, well, maybe that the Second Amendment as a rhetorical or as a political issue has caused difficulties in getting some of these policies enacted. In terms of constitutional law, in terms of the legal effect, the Second Amendment really isn’t a bar to us putting in place the types of policies that the evidence clearly shows will reduce gun violence.
Lithwick: So, we have this strange regime that we live in where until 2008, when the Supreme Court decides the Heller case, there’s at least some constitutional clarity on what the right to bear arms means. The Supreme Court drops Heller in 2008 and that’s suddenly confounded. Can you unpack for us what the understanding was before Heller and, this is the problematic part of my question, what Heller did?
Skaggs: Sure. In some ways, the question is about what Heller did and what it didn’t do and that gets back to the room that our legislators have today to address this problem. Prior to 2008 and the Heller decision, for 200-plus years of American history, the Second Amendment was broadly understood in a way that was consistent with the first half of the amendment. The Second Amendment of course provides a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Courts from the beginning of the country’s history up until a decade ago understood the right to ensure that states had a right to arm militias. This of course was a right that had its roots and concerns in the founding era over the power of a standing army for the newly created federal government and was created to ensure that states could form these militias.
A sea change began 30 years before Heller when the NRA and gun-industry-funded special interest groups began to promote a narrative that said, “You can just read that first half of the Second Amendment out. It’s about the second half of the amendment. It’s an individual right of the people to keep and have guns.” And indeed, if you go down to the NRA headquarters in Virginia, they’ve taken the first half of the Second Amendment out and just have the last 14 words.
But Heller was not a spontaneous decision. Heller was the culmination of, as I said, a generation’s worth of advocacy both in the courts and the legal system and the academy as well as in the court of public opinion. So, these industry-funded groups, the NRA, and allied organizations promoted this idea that there was an individual, almost sacred American right to have guns and that it was an absolute right and that any regulations of that were unconstitutional. I think in some ways, the Supreme Court only caught up to the changing public opinion. It wasn’t until that campaign had been successful in changing up a lot of minds of the public and of academics that studied this issue that the Supreme Court came and issued the Heller decision.
Lithwick: It’s fair to say that the genesis of at least some of this thinking in terms of the individual-right component of the Second Amendment comes from actually liberal academics, right? Sanford Levinson and other people who are trying to give a robust reading to all of the Bill of Rights. It’s not entirely driven by the NRA and conservative think tanks. I think there was some sense on both sides of the aisle that we had to think about this in terms of robust individual rights, no?
Skaggs: No, I think that’s absolutely right. I think that’s correct. At this point, where we are, both in terms of the jury’s prudential development as well as public understanding of the right, I think it’s pretty clearly established that the right is going to be understood, as you suggest, both liberals and conservative scholars have suggested, as an individual right. I think, though, the question that really remains is what is the extent of the right? What does that mean in terms of government’s ability to regulate and take proactive measures to try and reduce gun crime and reduce gun deaths and injuries?
Heller obviously resolved the question of an individual versus collective right in favor of the individual rights reading. But Heller also very clearly said that it wasn’t an unlimited right. It wasn’t a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. So, Heller really left open a series of questions about what governments can do to regulate guns, what the scope of the right is in a whole range of different applications. Unfortunately, the Supreme Court hasn’t come back to answer any of those open questions, so the lower courts have been struggling with that for the last decade.
Lithwick: I think that’s the sticky wicket, and I wrote about this a few weeks ago, and you and I have talked about it, Adam, but the problem is that the court says, “OK, there is a right now. We’re not going to tell you the contours of it. Good luck with that,” and then declines time after time after time to take a case in any particular that you’ve described, to then refine the scope of the right. Do you have some theory for why the Supreme Court just has been out of the gun business for 10 years?
Skaggs: Well, obviously, we can all speculate. I think Heller was a closely, sharply divided 5–4 opinion. It may be that that five-justice majority was not as solid as it may have appeared when the decision came down. One or more members of that majority may be hesitant to extend the right beyond a basic holding in Heller, but, you know, the Supreme Court, as you wrote a few weeks back, having sort of opened up this Pandora’s box, so to speak, needs to, I would argue, come and start to resolve some of these questions.
Lithwick: But now, here’s the happy part of the story for your purposes and the purposes of people who would like to see a more congruent judicial and common sense gun measures world, the lower courts have largely agreed with your take on this. I mean, very few lower courts have said the Clarence Thomas’s view of post-Heller jurisprudence is correct, right? I mean, you win more than you lose in the lower courts. Am I right?
Skaggs: That’s absolutely correct. Since Heller, there’ve been more than 1,000, I think, more than 1,200 Second Amendment challenges of one sort or another that have been raised, and the vast majority of those have been unsuccessful, which is to say that the gun laws that have been challenged have been upheld. Now, in some ways, that’s not at all surprising. Heller explicitly said that the types of laws that prohibit gun possession by felons or the mentally ill don’t violate the Second Amendment and the vast majority of claims under the Second Amendment have been people convicted of illegal gun possession based on a felony conviction who have challenged us. So, that’s not a hard decision for the lower courts to reach. Heller said those laws are constitutional, so the challenges fail. But a series of other challenges, I think, present more difficult questions for the court and have been working in their way with the circuits often coming out the same way, upholding these regulations, but litigation continues.
For example, the question of carrying guns in public, that’s really an open question in terms of the extent to which the Second Amendment applies outside the home, the degree to which government can regulate carrying guns, and Heller really didn’t answer that question. It said it’s unconstitutional to restrict handgun possession in the home, but it didn’t tell us whether you can carry guns openly on city streets around the country, whether a concealed carry is a constitutionally protected right or not and those cases, and the Supreme Court has refused to step in and take one.
Lithwick: I think that this week the Supreme Court is actually going to take up whether or not they want to grant cert on a Maryland case that comes up through the 4th Circuit. Describe the case a little bit and help us understand whether this might clarify some of the open questions you’ve talked about.
Skaggs: Sure, absolutely. The case was called Kolbe v. Hogan. As you said, it comes to the court from an en banc decision of the 4th Circuit, which upheld two Maryland laws, essentially. One, banning assault weapons of the sort that we saw used in Las Vegas and in Texas most recently, and the other part of the law prohibiting the possession of ammunition magazines that hold more than 10 rounds. The Maryland Legislature passed this law in the aftermath of the Sandy Hook tragedy. It was subsequently challenged by a group of gun owners and gun stores. The 4th Circuit, really in a groundbreaking decision, held not only that this Maryland restriction on assault weapons was constitutional, and indeed it ruled that the types of guns at issue weren’t even protected by the Second Amendment. The en banc majority found that these were primarily weapons of war. These were offensive weapons that were most suited to use on the battlefield, not in civilian communities, and held that these were not even protected by the Second Amendment.
Now, a number of other circuits have also upheld bans on assault weapons. The 2nd Circuit, the 7th Circuit, the 9th Circuit, the D.C. Circuit, and none of them have used the same reasoning. Some have applied intermediate scrutiny, some have applied slightly different tasks. So, one question that this case, should the Supreme Court take it, could resolve is the question of how the courts should deal with these cases. We don’t have a definitive Supreme Court ruling telling us whether strict scrutiny is appropriate, as the original panel in the 4th Circuit had held, saying that intermediate scrutiny is the appropriate test, or that some other tests should apply. So, there are those methodological questions that are really interesting and calling out for Supreme Court guidance.
But, ultimately, aside from the issue of whether governments can restrict access to these types of weapons of war, which is obviously the first question presented in the case, I think the broader question that this case presents is to what extent can our democratically elected governments wrestle with this clear and present threat to American public safety? To what extent does the Constitution remove from people’s hands, remove from the legislature’s hands, the ability to try and address this problem? Even after Heller, courts have generally said, “Look, the Second Amendment doesn’t make gun regulation unconstitutional,” and that’s consistent with American history. We have always had strong regulation alongside of gun rights, but the plaintiffs in this case would suggest, “No. These choices are off the table. We simply cannot do anything about possession and use of these guns that are used in so many mass killings.” So, that, I think, is really the most important question that cases like this present.
Lithwick: Then it’s the question in effect of whether courts are going to take the entire issue out of the hands of legislatures or whether we can continue to grapple in democratically elected fashion to find our own lines, that’s what you’re saying.
Skaggs: That’s exactly right. You know, there are cases, indeed, there’s another case that the Supreme Court will decide whether or not to take up, just a few days before Thanksgiving, in which gun-lobby-backed plaintiffs argued that the Second Amendment protects an ability to carry guns openly, visible, in plain view in city streets across the country and that any government regulation of that is unconstitutional. So, governments across the country have always adopted gun rules appropriate to context.
You and I are talking in New York City. I would suggest that rules about carrying guns on crowded city streets in a place like this have been very different from carrying guns in rural, sparsely populated areas over the course of history and I think that makes sense in an intuitive way. The rules that make sense from one place may not for the other. But there is this strong and well-coordinated legal attempt to say no, we can’t do that. We can’t make rules that change from region to region or that are different from the city to the country. It’s a matter of constitutionality and those are radical ideas that are foreign to the way the Constitution of the Second Amendment had been understood throughout our history aside from the last 25 or 30 years.
Lithwick: Adam, Justice Scalia wrote the Heller opinion. He was, in many ways, the intellectual architect of whatever that produced. He’s now replaced by Neil Gorsuch. If the Supreme Court takes any of the cases you’re describing here, what do we know about how the new justice, Neil Gorsuch, thinks about these Second Amendment issues?
Skaggs: There’s not an incredibly extensive track record in terms of circuit court opinions. He wrote a few gun cases, not a tremendous number of them. But I think the very first thing he did when he got to the court—well, one of the first things he did. The first thing he did on the Second Amendment was to join a dissent from denial of sort, in a case coming out of California, The dissent was written by Justice Thomas, in a case that sought a ruling saying that the Second Amendment applied outside the home just as broadly, just as strongly as it did within the home, and therefore that any citizen could carry guns in public, essentially, and that government was limited in its ability to regulate, to license permit, and so forth.
In joining that opinion, I think he signaled that he has a broad view of a powerful or even unlimited Second Amendment and certainly I think would be expected to vote consistently with the way that Justice Scalia did in his cases. I’m not sure that his joining the bench changes much in this way because Justice Scalia himself obviously had a very broad view of the Second Amendment.
Lithwick: We’ve described a world in which there’s almost, by happenstance, this strange stasis going on where the Supreme Court lays out something we don’t know quite what it is in Heller. People think it means something it doesn’t mean, but maybe that’s OK because the lower courts are more or less ignoring them. The lower courts are going ahead and striking down things that seem unreasonable, upholding things that are reasonable. So, we’ve got this confined world in which, even though nobody knows quite why, it’s all redounding to the benefit of folks who’d like to see regulation. But that leaves out one part of the equation, which is there are 150 federal judicial vacancies that Donald Trump is filling—we’ve talked about this on the show—at breakneck pace. Just funneling folks through the Judiciary Committee. So, how much does that affect the world you’re describing right now where even though nobody quite knows why gun control is somehow prevailing in the lower courts, that changes if 150 Trump judges come on the courts, one might assume, correct?
Skaggs: Yeah. I think it has at least the real potential to change things in a dramatic way. As you said, I think you just talked a week or two ago on this podcast about the incredible pace of confirming these judges, and indeed, it’s like the administration and the Congress had been unable to do anything else. But at least they’ve said, “You know what? We can get these judges.”
Of course, the biggest concern there is these are life-tenured positions on the federal bench. The judges that are being confirmed by the Senate one after another are going to be holding their positions. They’re going to be influencing American law and America society for many, many years to come. So I think it’s frustrating to me sometimes that I feel like folks just don’t really pay much attention to judicial confirmation and the third branch; it’s sort of an abstract notion, but these are really impactful and important decisions that are happening, so I think it’s important that the public begin to pay more attention.
Lithwick: That’s why I keep banging on and on about it. But I think you’re right. In a daily shelling of the other things that are going on, it’s hard to notice. Do you want to talk a little bit about this week? The Judiciary Committee moved forward Brett Talley. He’s a former Justice Department lawyer. He’s 35 years old. Do you want to talk a little bit about his gun record?
Skaggs: Yeah. I think the Talley nomination is sort of illustrative of how norm-shattering what we’re seeing happening is, not just in terms of the speed of these confirmations, but in terms of the type of candidate that the president is putting forward for these seats. Just a couple of facts that I think give some perspective of this. From 1989 to 2016, there were only two judicial nominees who were submitted who got a unanimous, not qualified, ranking from the ABA.
Lithwick: The American Bar Association. They rank every judicial nominee.
Skaggs: Correct. As I said, for that entire period from the George H. W. Bush presidency straight through to 2016, only two nominees were made that were unanimously assessed to be unqualified. We’ve now in, less than a year of the Trump presidency, equaled that record. He’s had two unanimously unqualified candidates, one of whom is Brett Talley, who we’re just talking about this morning. We’re talking on Thursday afternoon, Thursday morning. The Senate Judiciary Committee voted his nomination forward.
Now, this is someone who has practiced law ... he graduated law school about a decade ago, in 2007. He practiced law in the last 10 years for all of about three years. His other job has been writing political speeches for Mitt Romney, serving on the Hill in a political capacity. He’s never tried a case. He’s never held a state judicial position. So clearly, he lacks the kind of experience that’s, I’ll just say, typical of other past nominees, and while that would be troubling enough that this young man is being offered a lifetime on the federal bench, he has also been an extensive blogger, which itself certainly is not disqualifying, but the ideas that he’s—
Lithwick: It’s becoming de rigueur, I think. It’s becoming necessary to have been a blogger. What’s he written? I’m sorry.
Skaggs: Well, and he’s written on a lot. But what he’s written on guns I think is especially troubling. The most troubling thing he did, which he did about maybe just over a month, maybe about five weeks, after the Sandy Hook tragedy occurred, he wrote what he called “A Call to Arms” in which he called on his readers to join the NRA, to support the NRA. He said on his blog, “Going forth today, I pledge my support,” he said, “Intellectually, financially, and politically to the NRA.”
Now, it was obviously a politically sensitive issue at the time and perhaps he might say that, well, those words were written in haste. But when asked by the Senate Judiciary Committee, “You’ve pledged your intellectual support to the NRA. Would you recuse yourself there was an NRA-backed party in your courtroom? Would you recuse yourself and not hear the case of the NRA itself or a party,” and he has refused to give those assurances.
So, I think the judgment of this nominee, at the very least, can be called into question, and that’s why Giffords Law Center earlier this week sent a letter opposing the nomination of the Senate Judiciary Committee. We don’t usually get involved in judicial nominations as a matter of course, but these candidates, the nomination of Talley in particular, are just so outside the norm, so egregious in terms of qualification and judgment, that we felt we had no choice but to oppose a nomination.
Lithwick: You mentioned the NRA and I think that that dovetails with an article you just recently wrote at MBC.com, talking about it’s very strange how deeply entrenched the NRA has become in the judicial fight. I mean, you just finished saying a few minutes ago the judicial fight is so not on the radar of most lobbying groups. It’s its own weird boutique enterprise. But here, the NRA is all in on the fight over judges, right?
Skaggs: Yeah, I think so. I mean, I think it’s well-established that the NRA broke its political-spending record spending $30 million to elect Donald Trump to be president. But folks may not remember that also as soon as the Gorsuch nomination was announced, the NRA announced a million-dollar advertising campaign to support his confirmation. You know, the day after the nomination announcement, the president convened a group of advisers to talk about how are we going to get this nomination through or this confirmation through, and sitting right there directly next to the president of United States was Wayne LaPierre, essentially the head of the National Rifle Association. So, their connection with the administration is a close one, and it’s a well-documented one.
They’re also now, I think—when you see nominations of lower-court candidates like Brett Talley—they’re not just worried about who sits on the Supreme Court at this point, they have set their sights on the lower courts. Who’s nominated for seats on the district court? Who’s nominated for seats on the courts of appeal? This is something that I think we need to track very closely. My organization, Giffords Law Center, recently submitted a series of FOIA requests, a series of public records request seeking communications between the gun lobby, the NRA, and affiliated groups, and the administration. We want to see exactly how these parties are influencing decisions that are made about who’s nominated for the bench, and we, perhaps unsurprisingly, haven’t gotten those records back.
But I’ll just say that all of our options are on the table and if we don’t get these records from the administration, we’ll purse whatever means we need to in order to get those because we believe it’s fundamentally important when you’re talking about life tenure, and when you’re talking about type of influence that the third branch has on questions on gun policy, and any number of other issues that you talk about in this podcast. The American public really need to know who’s pulling the strings and who’s influencing the selection of those judges that have so much power in our society.
Lithwick: Adam, you and I did an event at NYU Law School this weekend. By the end of a conversation like this one, people were driven quite literally to drink and by “people,” I mean you, and me, and the rest of the panel. There is a sense, I think, of this pervasive enthusiasm gap where groups that you’re describing, the NRA, the pro-gun lobby, are so fiercely all in on these issues and that the disparity in progressive response. ... You know, we get really upset there’s a shooting. We post angry things on Facebook. We say, as I said at the top of this podcast, “Oh, well, there’s not much we can do.”
There’s this absolute, it seems to me, massive divide between those who feel empowered to act on this and the vast majority, if polling is correct, who feel that they want things to change but they’re just stuck because of the law. Is there any sign of that changing? Is there a sense that that enthusiasm gap could shift in ways that would allow progressives to own the gun issue in the same degree of intensity that conservatives own it?
Skaggs: Well, I’ll say this: there are positive signs. There is this reason for optimism, perhaps cautious optimism, but there are some really important signs. I think you’re absolutely right. There has both been, historically, an enthusiasm gap and there’s been a perception, perhaps, that that gap is even wider than it has been. So, the perception that the NRA has this core base that can be mobilized at any time and that they will swamp anybody who tries to do anything about gun violence has been so pervasive, that perception that we see Congress gridlocked and unable to move forward.
But I will say that I think the last few years have seen a sea change in the movement to fight gun violence. We see an unprecedented level of enthusiasm in activism among folks that, frankly, are just sick of seeing not only horrific shootings like Las Vegas or Sutherland Springs, but the daily drumbeat of gun violence in this country, whether it’s suicide by gun, whether it’s accidental shooting of children, whether it’s domestic-violence shooting, which is a huge problem in this country that doesn’t get nearly the attention it deserves. We have just seen a growing core of citizen activists who are just sick and tired of this, and who are speaking up, and who are acting up in a way that I think is totally new.
One data point that I think underscores the change that I would argue is afoot is that if you look at what happened in Virginia on Tuesday earlier this week, in the gubernatorial election, guns, first of all, were the second-biggest issue that people said was their priority for voting. Health care was sort of in a class by itself. A huge number of Virginia voters said the most important issue for them by far was health care. After that, though, the second issue that people mentioned the most was guns, and maybe this is in part because they’re voting just after two of the most horrific mass shootings in American history. Maybe this is because they saw earlier this summer the presence of armed individuals in Charlottesville and the horrible events that took place there.
Whatever the reason, guns were the second-most-important issue, and unlike in past cases, where you’d say, “Oh, well, everyone who said guns were their most important issue, those voters are all going to be voting this absolute Second Amendment sort of perspective.” But what we saw was that of those voters who said guns were the most important issue that caused them to cast their votes, stayed divided equally: 49 percent for Northam and 49 percent Gillespie. So, this isn’t, at least it wasn’t in Virginia, a question where, for those voters that really cared about guns, they were all voting for the no-regulation, Second-Amendment-absolute candidate. In fact, an equal number of them voted for the candidate that was very outspoken on the campaign trail that he believed the gun violence problem needed to be solved and that there were important steps government could take to do that.
If you look up and down the democratic ticket in Virginia, all of those candidates were outspoken on guns. All of them won. Now, obviously, there was more at play in what happened in Virginia than simply the gun issue, but I think you can’t divorce the candidate’s positions on guns from the outcome that we saw not just in Virginia but in elections across the country, in New Jersey, in down-ticket races in other states.
The overwhelming success of candidates that said, “You know what, I’m not afraid to talk about guns on the campaign trail. I’m going to get out there and say, ‘This is a problem. Something needs to be done about it and there’s real things we can do about it.’” Those candidates were really successful in 2017. So I hope that that is a trend that will continue, and I think if we elect some politicians, some leaders that have the courage to do thing differently than our present group of leaders in Washington is doing, we may be able to get a handle on this problem after all.
Lithwick: Adam Skaggs serves as chief counsel at the Giffords Law Center to Prevent Gun Violence. Adam, thank you. Incredibly, thank you really for making me feel a little hopeful at the end of a depressing conversation. Thanks for joining us.
Skaggs: Well, thanks for having me, Dahlia. It’s been a pleasure.
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Lithwick: We turn now to our second guest this week, someone I wanted to help us think through and commemorate the one-year anniversary of the election of Donald Trump. We’re going to talk to Becca Heller. She’s director and co-founder of the International Refugee Assistance Project. You may not have heard of it before January of 2017, but it was out there. They became the plaintiffs in the big travel ban litigation case that made it all the way up to the U.S. Supreme Court and they were actually the lawyers partially behind the amazing moment, the spectacle in January of 2017 where lawyers flooded the airports around the country to stand between the travel ban and the refugees trying to enter the country. So we wanted to have her in to talk about being a lawyer in Trump’s America and whether she’s super tired. So, welcome to Amicus, Becca Heller.
Becca Heller: Thank you.
Lithwick: Let’s start where I started, which is, tell us a little bit about the International Refugee Assistance Project, where it comes from, and what you used to do before Donald Trump.
Heller: What I used to do before Donald Trump. So, the International Refugee Assistance Project was co-founded by myself and Jon Finer at Yale Law School when we were students in the fall of 2008 and the idea was to provide legally to refugees trying to navigate the process of getting to safety. We based that on the fact that I think a lot of the time people conflate the word “asylum” and “refugee.” The difference is that an asylum-seeker is already in the U.S. trying to stay, and a refugee is outside of the U.S. trying to get in.
A bunch of studies have actually found that in the asylum context, if you take account of all other variables, having a lawyer alone makes you 400 percent more likely to be granted asylum. So we felt like the same was probably true or more true for refugees who, unlike asylum-seekers, have just no due process rights whatsoever. There’s no transcript to the proceedings. Lawyers are barred from attending the interviews. There’s no formal appeals process. We started organizing law students and lawyers across the country to provide legal representation to refugees seeking resettlement in the U.S. and in other countries.
Lithwick: What did that look like on a case-by-case basis?
Heller: It’s sort of a virtual public-interest law-firm model, as we call it. We have staff on the ground and other NGOs that identify really urgent cases to us, like women who have been trafficked, LGBTI individuals, people who are in danger because of their work with the U.S. government in Iraq or Afghanistan for whom resettlement is really an immediate life-saving necessity, but they have to go through these really bureaucratic and archaic legal procedures that haven’t been updated since 1951.
There’s a minimum of three or four interviews. The interviews can be anywhere from one to seven hours long. They have to produce tons of documentation, so we help them get their documents together. We submit a legal briefing explaining why they meet the refugee definition. We try to help them prepare for their interviews and then we advocate for the case to move, because a lot of the times, there are so many of these cases that they just tend to fall through the cracks unless you really assiduously follow up.
Lithwick: So, how does your life change when Donald Trump is inaugurated in 2017, Becca?
Heller: My professional life, you mean?
Lithwick: Yeah. No, I mean, I don’t mean about your mental health. We’re all there. But tell us what the lane change becomes and how you find yourself at the red-hot epicenter of the travel ban litigation.
Heller: You know, when we founded IRAP, we just really wanted to nerd out on the law. We felt that refugees deserve pro-bono legally the same way that asylum-seekers did. We were organizing thousands of lawyers and law students to represent them and then we were doing advocacy with the Department of State, and Homeland Security, and the United Nations to try to improve processing and make it more efficient. But at the end of the day, even the folks that we were advocating against or with had the same macro level goals as us.
The State Department’s goal had always been to try to admit as many refugees as possible even if they thought that our intervention on behalf of individual cases or trying to get them to change systems was a little bit annoying. What we’ve seen now is just this complete sea change where the U.S. government’s official position seems to be that refugees are not desirable, that we should admit as few refugees as possible. So, rather than trying to make the program more efficient and more effective, we’re really descending like the very existence of a refugee admissions program to the U.S.
Lithwick: The rest of us are walking around at the Women’s March and trying to count the numbers of people standing around the Washington monument and you, on the other hand, right before the travel ban dropped, already had an intimation that it was coming, and you were already trying to scramble some resources to prepare, right?
Heller: Yes. I mean, I think the draft of the travel ban that eventually became the executive order, and there weren’t many changes, I think leaked to pretty much everybody on President Trump’s first official day working at a desk, which was the Monday after the inauguration. We pretty quickly realized that it meant that the doors to the U.S. were closing for quite a large number of people. The first executive order banned all Syrian refugees, banned anyone coming in who had a passport from seven different countries. It suspended the refugee program. So, we reached out to all of our clients who had valid visas then encouraged to get on planes and try to come to the U.S. as quickly as possible.
At some point, we realized that whenever the thing was signed, and everyone thought it was going to be signed Wednesday, when John Kelly was sworn in the secretary of Homeland Security, that was the rumor, that as part of the celebration of swearing him in, we were going to ban people from seven different countries from coming to the U.S. because that’s apparently what Homeland Security is about to this administration. We realized that we were going to have folks on planes when something got signed, which meant that people were going to be in the air who, when they took off for their flight, had legal permission to enter the U.S. and when they landed, were essentially undocumented and that no one knew what was going to happen to them at the airport. So, we reached out to our network of lawyers and we organized people into shifts to go to airports armed with per se or a template like habeas corpus decision petitions to make sure that no one was being detained at the airport without access to due process.
Lithwick: This becomes the face of “Wow, those geeky lawyers that we’ve spent most of modern history, and in fact, probably going back to Shakespeare, hating on, are useful in a crunch.” I mean, it really did, I think, make lawyers the hero of the story in the Trump resistance, right?
Heller: Yeah. I mean, I think you wrote a piece that said, what was it like, “The lawyers showed up and they won.” I think that lawyers really have played a crucial role in many resistance movements. I think usually, they don’t play a visible role. Lawyers are usually the ones behind the scenes, making sure that people aren’t retaliated against, drafting legislation, watching a protest to make sure that there aren’t false arrests. I think it’s rare that the lawyers are leading the charge and that was sort of a fun moment of the whole thing, like the lawyers went first and then all the protestors followed where usually, I think it’s the other way around or literally trailing after the protesters doing legal observation work.
Lithwick: Right. We were like Sally Field. “They like me! They like me!” Then it ended. So, as you’ve pointed out more than once, the first travel ban registered big-time on the national political Richter scale. People were affronted, and engaged, and they were making phone calls and donating money. Travel ban 2.0, less so. Travel ban 3.0 less so. You pointed out to me this week that we all miss travel ban 4.0.
Heller: Yeah, the travel ban 4.0 was just a refugee ban that came out about two weeks ago. It banned refugees from coming in from 11 different countries, nine of them are Muslim majority, then the effect of that is that about 80 percent of Muslim refugees applying to the U.S. aren’t going to be able to come in. The other thing it did was it banned family unification for refugees. So, there’s a program called Follow to Join, which means if you travel to the U.S. as a refugee, you can bring your spouse and your minor children after you and it suspended that program as well, allegedly, under the guise of needing to review the security more. But I think that begs the question of what the hell were you doing for the last 120 days when you were reviewing the security of these processes? So, huge numbers of refugees now, majority Muslim, are banned from coming in to the U.S., and I think it barely made a dent in the public consciousness.
Lithwick: Becca, this is actually why I wanted to have you on the one-year anniversary show because I think that no matter who my guest has been over the year, at some point they say some version of nothing is breaking through, everyone is exhausted, nothing makes a dent. What’s your personal prescription, other than raging at me as a journalist for not doing that.
Heller: No, don’t take it personally. It’s not just you.
Lithwick: I will take it on behalf of all journalists that it is awfully hard for anything to break through. But what’s the prescription for keeping folks as angry about 4.0 as 1.0, particularly when the courts have been really complicit in saying, “Oh well, we’ll dismiss this lawsuit. Well dismiss this one”? I mean, the courts seem to be also playing a role in less and less alarmist responses, right?
Heller: I don’t even really think that’s true. I think the Supreme Court has punted a couple of times, but literally, every other court that has ruled on this has enjoined the order from taking effect, which means something. I mean, even on round 3.0, both the district courts in Maryland and Hawaii issued extremely broad injunctions saying 3.0 can’t take effect. And the Supreme Court didn’t rule on it one way or the other, they just wanted to avoid wading, I think, into a political mire, so they waited until the 90 days, and it expired and then were like, “Oh, it’s moot,” which they’re not going to be able to do this time around because the reason they were able to find it moot was that the second executive order put a 90-day timeline on the ban. The newest executive order that’s come out on visa travel is indefinite. So, there’s not going to a way for Chief Justice Roberts to sit this one out. One way or the other, he’s going to have to weigh in and we’ll see what happens with that.
But I really don’t think the courts are sitting it out. I think that a number of courts, especially in the 4th and the 9th Circuits, have gone out of the way to hear the cases. The 4th Circuit took the appeal of the second travel ban initially en banc, which may have been the first time they’ve done that in history, and they just told us two days ago that they’re taking the appeal of 3.0 also initially en banc. So, they’re treating this like the historical anomaly that it is.
Lithwick: I would add, taking into account the things like the Donald Trump tweets and speeches, the ways in which he continues to affect and taint the successive bans with things that he had said and done that are not maybe formal statements, but certainly holding him to the proposition that the things that he says about these things actually matter, right?
Heller: Right. I mean, every time there’s some kind of terrorist attack, although really only when there’s a terrorist attack perpetuated by someone of the Muslim faith, because I would argue that what happened in Texas a few day ago was a terrorist attack and the president just used is as an excuse to talk why we shouldn’t have gun control, which I thought was a pretty impressive piece of gymnastics. He’s tweeting stuff about how people need to be kept out; he wished he could say what he really thought, but it’s too politically correct and the courts know what that means.
I mean, when he endorses saying that terrorists should be shot using bullets dipped in pig’s blood, which Judge Chuang actually references in his decision in the District of Maryland, everybody knows what he is talking about. I don’t think that the courts have been complicit in letting this slide. I just think that people have lost interest maybe in what the courts are doing or at least the media has lost interest in what the courts are doing. Not you personally, I know that you’re really interested, but everybody else.
Lithwick: Talk a little bit about that, because I do think you called it “refugee fatigue.” But how do you get up every morning and, other than saying “I wish someone would cover this story, it’s as important and urgent now as it was in January,” how do you, in your head, think that we should be reframing this to get folks who are all tweaked about any number of other indignities and horrors to keep their eye on this issue? What is an animating thought about what this refugee question is so urgent that we could maybe take away from this conversation?
Heller: I think that’s a couple of different questions. One is why is it important for people to pay attention, and two is, how do we get people to pay attention, right?
Lithwick: OK, do it that way.
Heller: OK, thanks. So, I think it’s important for people to pay attention because I think that human displacement is the biggest catastrophe facing the planet. I mean, climate change, as much as our administration denies it, and now that Syria has signed onto the Paris Accords, we’re officially the only country in the world to not be signed on. The major effects of what we’re going to see in our lifetime are going to be that certain areas of the planet are going to become uninhabitable and that’s going to lead to human displacement. The more war there is over natural resources, or whatever else, the effect of that is going to be human displacement.
All of these other global issues that we’re talking about, when we look at the fallout from that, it’s going to be that people have to flee their homes and they’re going to need a place to go. If we’re not paying attention to that, it’s going to cause massive destabilization. We also haven’t updated the system that we use to process refugees since something like 1951. So, right now, if you flee the Syrian civil war but you can’t prove that you are individually singled out, technically you’re not a refugee. If you are a resident of the Island of Tuvalu and Tuvalu goes under water, you can never go home. But technically, you’re not a refugee and there’s no legal protection instrument for you.
So, I think we really ignore this issue at our own peril and we saw the effects of that with thy Syrian refugee crisis in Europe where the Syrian civil war arguably started in the spring of 2011. No one was talking about Syrian refugees until 2015, and that was only because we ignored people for so long that they had no choice but to get on boats and a million people swarmed into Europe. There’s a poem called “Home” by this British–Somali poet, Warsan Shire, that I love to quote and there’s a line in it that says, “No one puts their children on a boat unless the water is safer than the land.”
So, I think that we ignore the refugee issue at our own peril and at certain points, the pressures are going to build up around borders that people are going to have no choice but to try to enter illegally using traffickers or coyotes or really dangerous raft. You saw that the bodies of a number of teenage girls who were trying to migrate from Libya were discovered in the Mediterranean two days ago. I mean, I think this is our chance to try to deal with the system, and we can ignore it and pretend that it’s not there, and that’s just going to make the problem 87 times harder to deal with when we’re finally confronted with it.
I think that’s exactly what happened to Europe, and it fundamentally shifted the whole political theme there. I think there’s an argument that ignoring the Syrian refugee crisis led to Brexit because ignoring the Syrian refugee crisis led a million refugees to take the raft because they felt like they had no other choice, which lead to the xenophobic backslash against refugees in Europe, which was the main rallying point for the U.K. to pull out of the EU. I mean, I just think there are huge ripple effects that nobody is really thinking about.
Lithwick: You’re describing something that seems so massive, and so inexorable, and intractable. How does it begin to get fixed, Becca?
Heller: It begins to get fixed one person at a time, I would say. I think you can assist one refugee at a time. I think people need to remain politically engaged, and I know that I haven’t gotten to your question about how do people actually do that, but I think there’s a tendency for foreign policy issues to not feel very pressing. I think, like, undocumented immigrants in the U.S. feels pressing because they’re here, and people see them, and it seems like they’re having an effect. Refugees feel less pressing until they start coming ashore on boats.
So I think people need to be engaged at the political level on this and that there needs to be a respect from this administration for the foreign policy and national experts who think we should be bringing refugees in. I mean, the front page of the Washington Post today was a story about how General Kelly was trying to pressure Elaine Duke to revoke temporary protective status for Hondurans and she refused to do it. I think to have an administration that really has its head in the sand when it comes to international humanitarian work and burden sharing, and you’ll have folks at agencies who are trying to do their jobs, and then people like Steven Miller and General Kelly who are preventing them from doing their jobs, which is to try to make the planet safer and to make the U.S. more secure, and part of that is having a coherent refugee policy.
Lithwick: Becca, I want to get back for one second to this question of lawyers, because I do think that you represent, in my view, what it looks like to scramble well-meaning lawyers in America and operationalize them and inspire them to go forward and work sometimes on issues they know almost nothing about just in the interest of solving a crisis. If you could say something to the lawyers who are listening to this show who are probate lawyers and divorce lawyers who are sure glad that you’re doing what you’re doing, Becca Heller, so they can feel good that this is getting resolved, what do we have to do, including me, as lawyers in the Trump era, to effectuate some of the kinds of massive change you’re describing?
Heller: Well, number one, IRAP is always looking for volunteer attorneys, and you don’t have to have refugee or immigration experience or even more than a couple of hours a week. So, if you’re listening to this and you’re a lawyer and you’re thinking what can I do, one thing you can do is send us an email at email@example.com and say that you’re a lawyer and you’re interested on working on a case. Dahlia, you could also do that if you wanted to. You can also sign up for action alerts on our website, which is just refugeerights.org, which will tell you this is a thing coming up in Congress. You can make a phone call. There’s a ton of work to be done on Amicus briefs.
Then I also think that in every community, there is a resettlement agency that’s responsible for helping refugees integrate, and regardless of what your skills are, even whether you’re a lawyer, you know a lot of things that are actually really helpful for refugees, like how to open a bank account or what the hell the DMV is. You should volunteer with your local resettlement agency to see how you can assist refugees who are already inside of this country.
The other thing I would recommend for anyone who cares about this issue is just to set a Google alert because even though a lot of the mainstream press isn’t giving it prominent placement, the cool thing about the internet is that you don’t have to get all your news from the mainstream press. So, you could set a Google alert for U.S. refugee admissions or Syrian refugees or whatever aspect it is of this that floats your boat and have you still listening to me ramble on, and just at the end of each day get a news digest, so at the very least, you’re informed about what’s happening and you’re reminded that it’s still occurring.
Lithwick: Last question, Becca. Really the reason I wanted to talk to you on the one-year anniversary of the election is because people are tired, and as tired as they are, I’m guessing you are even more tired. How do you envision going forward for three more years, potentially, of what feels like drinking out of a fire hose of chaos, and misogyny, and xenophobia, and the kinds of things that a year ago we just didn’t think about in these ways?
Heller: I think part of it is that I subsist on a diet of chaos, and misogyny, and xenophobia, and I really get fueled by those things when I have them for breakfast. I am tired, but I’m fired up. I mean, I think we had been doing this work for a long time and you asked me at the beginning how has our worked changed and I said it’s gone from this sort of technical, nerdy, legal thing to this sort of existential, like, “Who are we as Americans?” and “Are we going to let immigrants in?” question.
I find that a very fulfilling thing to work on. I think we’re in really scary times, but I feel really privileged to have a role to play in trying to do something about it and I think that everybody has a role to play even if it’s just calling your legislators once in a while or going to a protest. Then at the end of the day, we’re going to look back on this period in history in shame and you’ll have to know in your mind, did you stand up or did you sit down? For me, I just feel like no matter how tired I am, it’s just a great privilege to be able to come to the office and stand up for refugees every day.
Lithwick: Becca Heller is director and co-founder of the International Refugee Assistance Project. Becca, I find you, equal parts, completely inspiring and somewhat terrifying and there is no one I would have preferred to spend the one-year anniversary of the election with. Thank you.
Heller: Let’s have a drink.