Is ICE Leading Us Into a Constitutional Crisis?

So they do not want a constitutional crisis, but what is the alternative? You tiptoe around it and hope that the government comes into compliance by baby steps?

That’s right. It’s a very sensitive interaction. And, in some of these cases, with the threats, the government has come into compliance. But, at a certain point, it does seem as though the courts are going to have to take that next step, which is civil or criminal contempt against individuals. They also have the capacity to refer individuals for disciplinary measures, and they can disqualify particular Justice Department attorneys from handling certain cases before their courts—reputational hits for some of these individuals. I think that will be the next escalation.

There was a lot of discussion last year about the Trump Administration ignoring the courts. My own feeling from following the issue had been that they would walk up to the line in most instances, and then, in the rare cases where the Supreme Court ruled against them, they would comply. It seems like the Trump Administration wants to show that it can be uncompliant, but it doesn’t want to actually spark something that would create a huge drama or constitutional crisis, pitting it against the Supreme Court. Is that your understanding?

I do think they are playing a game of pushing it as close to the line as they can. I also think, in some instances, it is actually just gross incompetence or internal miscommunications. For instance, the Department of Justice lawyers might tell D.H.S. not to transfer somebody to another jurisdiction, but the communication doesn’t reach them in a timely fashion.

In the higher-stakes cases, the Justice Department is doing something more egregious. They do appear to be defying court orders to effectuate a policy. The key case for that is the Alien Enemies Act case, which came before Judge Boasberg. This happened within the first several hours of the President’s invocation of the Alien Enemies Act, in March. It’s about the flights that took off to El Salvador to bring those people alleged to be Venezuelan gang members to the CECOT torture prison.

Erez Reuveni, a D.O.J. lawyer and whistle-blower, revealed what happened behind the scenes, including text messages that corroborate his account. He alleges, with strong evidence, that it was a deliberate policy to, no matter what, get those people to El Salvador, even if there were court orders preventing their deportation. According to Reuveni, Emil Bove, a Trump loyalist at the D.O.J., had said in a meeting before the hearings that they would have to consider telling the courts, “Fuck you.” And then there’s contemporaneous text messaging between the D.O.J. attorneys during the oral hearing, in which they say that this is the “fuck you” moment. [Bove has testified that he does not recall saying this.] It’s just very clear, based on these allegations, what happened there. So I think that, to me, that would be the constitutional-crisis moment, that a case would get to the Supreme Court and they would do that to a Supreme Court order. They think they can get away with it more when it’s in district courts.

This feels like one area among many where, even if we aren’t yet in a worst-case scenario, or we convince ourselves that we are not, if you told someone ten years ago what was going on, they would think, Oh, well, that is a worst-case scenario.

Absolutely, yes, I think that’s right. Coming into this Administration, I was worried about some of the things that this Administration could do that would constitute crossing the red line. That would include open defiance of a court order. And here we are in the dozens. So I do think we’re in a new normal, and I do worry that the public has been desensitized to how concerning this is. But, going back to the subject of immigration, the defiance of these court orders is creating a lawless situation that I think judges are rightly concerned about. Another district court judge in Minnesota, Michael Davis, accused the government of attempting to undermine the regulatory and statutory authority of the immigration courts to coerce perpetual, infinite detention. So I think it really is setting up a parallel system of immigration detention that exists in defiance of the courts.

Do you mean that they’re essentially normalizing a practice where detainees do not get their time in court?

I’m definitely concerned about that. I think the reason the system is still holding is that we have instances in which the courts, by threatening civil and criminal contempt, are able to bring the government back into line. [The Times reported last weekend that hundreds of detainees have now been released from immigration detention after habeas petitions began filling up the federal-court dockets.] We have a court concluding that a government’s in flagrant violation of its orders, while still being able to coerce the government back into place. That’s the kind of knife’s edge we’re on right now.

What’s happening in the courtroom is part of a broader slide towards lawlessness, because defiance of court orders is connected to another ICE policy: the agency repeatedly states that its entire system of arrest is based on reasonable suspicion. And that is legally invalid because arrests have to be based on probable cause. A D.C. district-court judge, Beryl Howell, chastised the agency for this in December, summarizing several instances in which D.H.S. had repeatedly said that ICE arrests were based on reasonable suspicion, and they continue to do it. They’ve done it as recently as the past couple of weeks.

What’s the difference between reasonable suspicion and probable cause?

Reasonable suspicion is similar to stop-and-frisk policies, in which a law-enforcement officer can stop somebody very briefly and ask them questions on the basis of a low threshold of evidence. But actually arresting somebody and putting them in custody requires a much higher level of proof, which is probable cause. In the immigration context, to apprehend and detain someone for a long time, they’d need to have more than a reasonable suspicion, meaning much greater evidence indicating that the person is in the country unlawfully. So, for them to state and restate again and again that they’re basing their arrests on reasonable suspicion is like a failing answer on the bar exam. And they’re doing that continually, despite the court calling them out for it.

It is also important to note that D.H.S. has authorized ICE agents to enter homes without a judicial warrant. To me, these two policies are putting ICE operations on the road to a very different form of legal system than the one we’re used to. They’re breaking rules.