00:00 [Archival]: We'll hear argument first this morning in case 161363, Nielsen, Secretary of Homeland Security v. Preap.

[music]

00:08 Leon Neyfakh: Hey, everyone. This is Leon Neyfakh from Fiasco & Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Nielsen v. Preap, a 2019 case that allows the Department of Homeland Security to detain undocumented immigrants who have committed certain crimes for months or even years without ever allowing them a bond hearing.

00:32 [Archival]: I mean, they were arrested 14 years after being released, one for taking bus transfers. To me, that isn't the parade of possible future horribles, those are the horribles.

00:44 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

00:54 Rhiannon: Do you have your metaphor?

00:57 Peter: Yeah, I just wrote it a second ago. [laughter]

01:02 Rhiannon: Great.

[laughter]

01:03 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have slowly ravaged America like the Mongol invasions of Central Asia. I am Peter, Twitter's the law boy, I'm here with Michael.

01:17 Michael: Hey, everybody.

01:19 Peter: And Rhiannon.

01:20 Rhiannon: Hello, my friends.

01:22 Michael: Was the Mongol invasion slow? I'm not really familiar with the...

01:25 Rhiannon: Is that Genghis Khan?

01:26 Peter: They were over time. Genghis and Kublai.

01:27 Michael: Yeah, he's like a creepy...

01:29 Peter: I've been playing a lot of Ghost of Tsushima.

01:32 Michael: Oh, that's what... [chuckle] That's what it is. The only thing I know about the Mongol invasion was that they had horses, right?

01:37 Rhiannon: Oh, yeah, that's their big thing.

01:40 Michael: Yeah, their innovation back then.

01:41 Peter: Yeah, that's what I remember from when I used to read about them in Encarta.

01:46 Michael: Yeah, I do...

01:46 Rhiannon: The encyclopedia, yes. I used to look up animals, I read about blue-footed boobies.

01:52 Peter: You could only look up the basics, it was like Mount Everest? Yeah, you can learn about that. Kilimanjaro? Maybe. Alright, hold on. Okay, alright. Today's episode is Nielsen v. Preap, this is a case about whether the government can indefinitely detain immigrants who committed a crime, even if that crime occurred decades in the past, and they already served their time. This was a 5-4 decision from last year, 2019, with the majority written by our little buddy, Sam Alito. And I gotta say, reading this opinion, absolute torture.

02:37 Rhiannon: It's bad.

02:39 Michael: It's so bad.

02:41 Peter: Not only is it the cause of much needless cruelty, but Alito spins the opinion with his head alternately buried in a dictionary and up his own ass. It's truly an insufferable read where the court engages in pedantic and tortured explorations of, for example, the definition of the word "the" and remedial level explanations of the function of adverbs. When you're reading it, you wonder whether you are reading a supreme court decision or if in fact you are in some sort of purgatory lost to the world and cursed to eternal tedium. You wonder whether you've been reading the opinion for a few minutes or if perhaps it has been weeks. You wonder whether you are staring at the pages of the Supreme Court court reporter, or if you are staring directly into the eyes of a cruel and unforgiving God who has laid out in front of you a horizon-less field of your own suffering. So it's bad.

03:39 Michael: It's bad.

03:40 Rhiannon: It's so bad.

03:43 Michael: It's so bad.

03:43 Rhiannon: I can't believe I read this shit for this stupid shit.

03:46 Peter: Of all the cases we've read, this was the most difficult just to get through I think.

03:50 Michael: Yeah, absolutely.

03:51 Rhiannon: Yeah. No, no, no, no, absolute mental torture.

03:53 Peter: So yeah, this is about an immigration law, and there's actually a ton going on in this decision. There are a bunch of different legal questions, there are a bunch of different opinions, there's a huge amount of very convoluted analysis of different parts of the law, but we're gonna keep it nice and simple for you and we should give you a run down up top. There's a law called the we hate immigrants act of 1996. No, my mistake, it's the Apprehension and Detention of Aliens Act, and part of it deals with what to do with aliens, both documented and undocumented who commit certain crimes. And by the way, alien is sort of the widely used legal term for non-citizens, so we're gonna end up using it a bunch here, the court uses it throughout. And we fully recognize that it's more than a bit othering mostly because it literally means other, so we just wanna give our listeners a heads up here. The language the law uses is often pretty disconnected from how normal human beings speak, and we're currently using it in the same word to describe Independence Day-style, alien invaders and people who come here from Guatemala.

[laughter]

05:05 Rhiannon: Great, love that.

05:08 Peter: So if you are a non-citizen, aka an alien, and you commit a certain type of crime and you are imprisoned for that crime, the law states that, "When the alien is released" from criminal custody, he or she can be indefinitely detained pending their deportation hearing. And the central issue here is what "when the alien is released" actually means. Does it mean right after they're released, or does it mean any time after they're released, so that the government can swoop in 10 or 15 years later after they've served their time and have built themselves a life and a family and detain them indefinitely? If one of those sounds drastically less humane than the other, you can figure out which way the court went here. The real lesson of this case isn't really about how wrong the court got it for once, it's about the futility of assuming that you can, in an objective sense, correctly interpret the law and what the human cost of that assumption is, and what we should be doing instead. So Rhiannon, teach us a little bit about immigration law and the poor folks who got caught up in it.

06:20 Rhiannon: Yeah, sorry to bring you guys more bad news this week, but it's another shitty case with a lot of terribly hurt people. Welcome back to the show, everybody. [laughter]

06:35 Michael: Are we ever gonna do a good case? One week we should change it up.

06:38 Rhiannon: Maybe.

06:39 Peter: We did Bostock.

06:39 Michael: That's true. We did Bostock.

06:42 Rhiannon: Yeah, yeah, yeah. You're right.

06:42 Michael: We don't wanna spoil our listeners too much.

06:43 Peter: One out of every 30 episodes.

06:50 Rhiannon: Alright. So for purposes of this case, I think we have to talk about the immigration law background a little bit. Like Peter said, it's super, super complicated, but just kind of looking at this case, we are talking about two groups of immigrants who are facing removal proceedings. In immigration law, the term "removal proceedings" means that you're facing deportation, and so there are two groups of non-citizens who are facing deportation. So the first group, the standard removable aliens, those people are non-citizens, immigrants who are facing deportation because of a variety of the typical reasons that you might automatically or easily think of, like say, if you were caught coming into the US and you don't have the necessary documentation to make your entry legal, like ICE has information that you're undocumented, they can pick you up, they will put you in ICE detention, which is jail, and then court proceedings start regarding whether you really are here unlawfully and whether you will be deported. And in that case, while your removal proceedings are ongoing in court, you're in jail, but you are entitled to a bond hearing in which a judge can decide that you can be released if you pay a certain bail amount or something like that, that you can be released while you wait for the final decision on whether you will be deported, you'd be out on bond, just like you were if you were awaiting trial on a criminal charge and you were out on bond.

08:16 Michael: Right.

08:17 Rhiannon: Now, for the other group, the so-called criminal aliens, the circumstances around this immigration detention are different according to this law. Criminal aliens are non-citizens who have been convicted of certain crimes while they were in the US, and what this law establishes is that those people are subject to what's called a mandatory detention, which means that you will get picked up by ICE, you're put in immigration detention, but while your deportation proceedings are happening in court, you are not entitled to a bond hearing, you're gonna wait in jail until the court decides if you're gonna be deported or not. And so a quick example, this might be like... You're a lawful permanent resident, a lot of times, we refer to this as somebody who has their green card, you get arrested one night for possession of marijuana, say, and you end up being found guilty of possession of marijuana in criminal court, you go to jail, that makes you a criminal alien, which means you are now subject to losing your permanent resident status and being deported. So ICE can come pick you up after you've done your time on the marijuana charge but in this category, you are in mandatory detention, so you do not have a bond hearing. Now, waiting in ICE detention during removal proceedings is significant, I think for two broad reasons. Number one, almost every person locked up by the government in the US is entitled by the Constitution to a bond hearing.

09:42 Rhiannon: Constitutionally, if you're an accused triple-ax murderer, you still get a hearing in court when you're arrested on whether you're gonna get a bond or not, whether you can be released while you wait for the court proceedings to finish up. And the other reason why waiting in ICE detention is significant here is that the removal proceedings, immigration court, these are not quick proceedings. Immigration courts are notoriously and violently and inhumanely inefficient. These courts, they process millions of cases, there aren't enough immigration court judges, court dates are sometimes set years in the future, literal years. So if you are a criminal alien under this law, you are literally caged for months or years while you wait for the deportation decision and you're never entitled to a bond hearing. So to better explain, we can talk about the specific cases of the people involved in Nielsen v. Preap. This is a class action lawsuit actually, it was originally brought by a few lead plaintiffs, but the argument they're making is for all of the criminal aliens subject to this mandatory detention scheme in California. One of the lead plaintiffs is Mony Preap. Mr. Preap was born to Cambodian parents in a refugee camp, and he had lived in the US lawfully since 1981.

11:05 Rhiannon: Now, in 2006, he was convicted of just misdemeanor possession of marijuana, which is one of the crimes that's on this list of crimes that for immigration purposes makes you a criminal alien. So he finished his sentence on the marijuana charge, but as it turns out, immigration authorities didn't arrest him right then when he was released, they arrested him in 2013, seven years later, and they held him without bail until his deportation proceedings were finished. Now, an important note here is that Mr. Preap was eligible for cancellation of removal, which means that he was not deported, he was allowed to stay in the US at the end of those removal proceedings.

11:42 Peter: Wow. That monster still lives here?

11:46 Rhiannon: Right, yeah. [laughter] That monster who in 2006 was convicted of having marijuana and then wasn't arrested by ICE until 2013? Yeah.

11:54 Peter: This is why we needed Trump to come in here and clean this mess up.

12:01 Rhiannon: Another one of the lead plaintiffs, Eduardo Vega Padilla, he arrived in the US as a toddler and had been a lawful permanent resident for 52 years. I mean, this entire man's life, he's in the US, right? He has six grandchildren, all of them US citizens, but back in 1997, he was convicted of a couple of drug charges, and then after being convicted of possessing an unloaded gun, he was released finally from jail and prison and all of that stuff in 2002. He served his time. He moved on with his life. Well, in 2013, ICE showed up at his house and arrested him, saying he's one of these criminal aliens now who has one of these criminal convictions on his record, and under the law he's subject to mandatory detention. So he was also held without bond initially while he was waiting for the final decision on his removal proceedings.

12:53 Peter: Yeah, but when he gets back to his home country, he'll be able to find a job by using some of the connections he established when he was a toddler.

13:00 Rhiannon: Right, right. When it's like a two-year-old, more than 50 years ago. Yeah.

13:04 Peter: This all just makes me think that the actual law should be that if you've been in America for two weeks, you're a citizen now. That's it. If you're here on a long vacation...

13:18 Rhiannon: Right.

13:19 Peter: That's cool. You're a citizen now. You're one of us. Congrats.

13:19 Rhiannon: Why not? You're here, yeah.

13:20 Peter: You get the little flag and a sticker or whatever they give you when you become a citizen and that's it now.

13:24 Michael: The Cuban treatment, man, you get your foot on American soil and you're good.

13:28 Rhiannon: There you go.

13:29 Peter: That's right.

13:31 Rhiannon: If it's good enough for the Cubans, why not for everybody else? So yeah, this law applies to thousands of people who are in immigration custody at any given point in the United States, and these are people who by and large have been here lawfully, they've had some sort of run-in with the criminal law, but they've finished their sentences on those criminal charges. At that point, sometime after their release, they're picked up by ICE. And they might be deported, or they might not be, but unlike all other kinds of non-citizens who might be facing removal and unlike every other criminally accused person in the country, this group is subject to this mandatory detention scheme where there's no chance of bail while they wait for their case to be resolved.

14:12 Michael: Right. So they're separated from their family and their friends and their jobs. And if they are bread winners, that means their family's without income, etcetera, etcetera, etcetera, right?

14:24 Rhiannon: Yeah, so this case is not about deportation or how immigrants get deported or why legally. It's just about the government holding you indefinitely while you wait for your deportation decision.

14:38 Michael: Right.

14:38 Peter: Right. Alright, let's go to a fucking ad...

0:14:4 Peter: So let's talk about the law. Again, this is a law about the apprehension and detention of so-called aliens, and it says that if an alien commits certain crimes, which we didn't get into it too much, but these crimes range from terrorism to misdemeanor possession of marijuana, like the plaintiff. Then after the alien is released from custody, once they finish their prison sentence, the government can detain them without bond. And the point of this is pretty simple, the government wants to be able to deport immigrants who are engaged in criminal activity. So after you serve your time, the government will detain you while you await the outcome of your immigration proceeding.

15:21 Rhiannon: Yeah.

15:23 Peter: Like we said, this is about whether or not these people get a bond hearing, and the law says the alien doesn't get a bond hearing if the government picks them up, "when the alien is released" from prison. So the question of what that phrase means is important because it dictates whether or not they actually get that hearing.

15:41 Rhiannon: Yeah.

15:42 Peter: And the opinion accordingly, ends up revolving in large part around what exactly it means to arrest an alien "when the alien is released."

15:50 Michael: Right.

15:51 Peter: Does that mean that it has to do so fairly quickly or can it be done any time after? So that detaining Mr. Padilla without bond, 15 years after he was released is okay.

16:01 Michael: Right.

16:02 Peter: And the court says it can be any time after, meaning that ICE does nothing wrong when it swoops in years after the fact and holds them without a bail hearing. Keep in mind, there is no question here that ICE can detain these people and they can be deported, the only question is whether they can do so without giving them a bail hearing, forcing them to remain in custody indefinitely, which in practice as Rhi mentioned can be months or years.

16:32 Rhiannon: Right.

16:32 Michael: Right. The way I think about it is like, how humanely do we have to treat these people?

16:35 Rhiannon: Exactly, right.

16:37 Michael: How shittily can we treat people who were convicted of a crime?

16:42 Peter: Yeah, like we said, there's a lot going on in this opinion, but the heart of it is the court's analysis of this language we've mentioned saying that these people can be detained without bond "when the alien is released." And so the court embarks upon an incredibly painful analysis of the meaning of this phrase. Alito talks about whether adverbs can modify nouns and cracks open the dictionary to define the word "the" in "when the alien is released." [laughter]

17:10 Rhiannon: I hate him. I hate him with my life.

17:14 Michael: [laughter] It's so bad.

17:14 Peter: It's so technical yet like sloppily articulated.

17:17 Rhiannon: Yeah.

17:18 Peter: I mean, it's just ungodly painful to read.

17:20 Michael: It is.

17:21 Rhiannon: Yeah. It's horrible.

17:23 Peter: Interestingly, Alito throws away the dictionary when it comes to defining the word "when." Asserting that, quote, "when the alien is released" was intended to mean any time after the alien was released.

17:33 Rhiannon: Well, isn't that convenient.

17:36 Peter: I don't wanna get too deep into the reasoning used here because it's very convoluted, it cross-references across this statutes, like multiple different clauses, but he basically talks about the structure of the statute and says that because an adverb cannot modify a noun, the term "when released," cannot modify the type of aliens identified by the law... Phew. I mean...

18:08 Rhiannon: Can someone Venmo me for fucking reading this. [laughter]

18:14 Michael: It's so awful.

18:14 Peter: Oh man. It's truly bad. So the law says, when you read it through, "The Attorney General shall take into custody any alien who commits certain crimes when the alien is released." That is not a confusing sentence.

18:32 Michael: No.

18:32 Peter: The phrase, "when released" is a description of the time at which the government can take aliens who commit those crimes into custody under the statute.

18:41 Rhiannon: Right.

18:42 Michael: Right.

18:43 Peter: As the dissent written by Breyer points out, almost all definitions of the word "when" suggest some immediacy, if you say, "Lock the door when you come inside" and I come inside and you're like, "Did you lock the door?" And I say, "Oh no, but I was gonna do it in 15 years." You'd be like, "Well that doesn't... " That's not what I was asking for."

19:04 Rhiannon: Right, exactly. Yeah.

19:05 Michael: It doesn't really address my concerns.

19:08 Peter: So Alito's in a bind, right? He has to explain this phrase away. And what he says is that based on the structure of the law, the phrase "when the alien is released" isn't really relevant to whether or not they are eligible for a bail hearing.

19:21 Michael: Right, and the dissent makes this point, and it's sort of intuitively obvious, which is like, if it's not relevant, then why is the phrase "when the alien is released" in the statute at all?

19:33 Rhiannon: Right, Peter, I think your example was really good about lock the door when you come inside and the word when implying some sort of immediacy there and it not making sense otherwise. What Alito's argument is, is that "when" means something more like, you'll be good at this when you get older.

19:50 Michael: Right.

19:51 Rhiannon: Right? And that doesn't make so much sense, that interpretation of the word when. When you're talking about congress writing a statute that's about picking up people and putting them into custody, right? It doesn't make so much logical sense to interpret it as just sort of amorphous whenever some future date.

20:09 Peter: And you might notice that we're not digging super deep into what Alito's actually saying here, and that's for a couple of reasons, one, it's super technical and complex, we don't think that our listeners are smart enough to get it. No, it's genuinely too complex to explain in podcast format, but the second part is that frankly, we don't think that the majority's reasoning here is super off base. I think that Alito's interpretation is awkward, and it's worse than the dissent's interpretation, but it's not outrageous or anything. It's not one of those cases where you're like, "this is just offensive."

20:49 Rhiannon: Right, right.

20:50 Peter: It's a poorly written law, it's confusing and disorganized, and again, I think the dissent is more correct, but reasonable minds I think can differ here.

21:00 Rhiannon: Sure.

21:01 Peter: And that brings us to a problem that frankly, much of the legal profession is happy to pretend doesn't exist.

21:07 Rhiannon: Ooo, say it.

21:09 Peter: The task of the court is ostensibly to determine the "correct interpretation" of the law, but what if there is no objectively correct answer? Where does that leave the court?

21:21 Rhiannon: Yeah.

21:21 Peter: If you are intellectually honest enough to admit to yourself that there is no objectively correct interpretation here, then you have to acknowledge that the only way to approach the question of how to interpret this law is by applying some sort of purposivistic, common sense driven approach.

21:36 Rhiannon: Yeah.

21:38 Peter: You need to think about what the law is intended to, what its impact on people is, and maybe if you can see that there's no objectively correct interpretation of the law, you might try to find one that respects the human dignity of the people affected by it.

21:50 Rhiannon: Yeah, just try it. [laughter]

21:53 Peter: Basically, all that Alito says about the purpose of the law is that Congress wanted to be tougher on immigrants who committed certain crimes, which I think is more or less true, but it's interesting how readily conservatives are willing to refer to the intent of a law when that intent is just some racist bullshit.

22:13 Rhiannon: Yes, yes.

22:15 Peter: So let's talk a bit about the purpose of this law. Like we said, this isn't about whether the government can detain immigrants before their deportation hearings, they absolutely can be. What this is about is whether an immigrant who is convicted of a crime, serves their time, is released, and then years later is picked up by ICE... Whether that person is owed a bail hearing or whether he can be detained indefinitely in some fucking ICE run concentration camp.

22:46 Rhiannon: Exactly.

22:47 Peter: So the main purpose of a bail hearing is to allow a judge to analyze whether or not someone is either one, too dangerous to be out in society or two, a flight risk. And that's really it. And if someone like in this case, served their time for a crime, settled down, started a family, and then led a peaceful and law-abiding life for over a decade, there's as close to a zero risk of danger or flight as you'll ever get. And that, when you're talking about what outcome here makes sense, is the bottom line, right? Give that guy a fucking bail hearing.

23:20 Rhiannon: Right.

23:21 Michael: Exactly.

23:21 Rhiannon: Let a judge determine it.

23:22 Peter: The point of bail hearings is to give people who aren't a danger to society, their freedom before they face trial. And that's the moral difference here, the choice between holding these people indefinitely, possibly for years, despite the fact that they pose no threat to society and letting them go back to their lives until their deportation hearing can actually happen.

23:43 Michael: Yeah, and so in that sense, what they say is like, Look, the reason why this is a mandatory detention is we don't think bail hearings are adequate for determining who is and isn't safe to re-release into the community here. And look, that's maybe a fair reading, maybe that's the "right reading" like Peter said, but again, like if you have 10 years of information of somebody re-entering society and setting down their roots and making a life, then that situation is different. Now you have more information available. And that sort of goes to the indeterminacy of this, like Peter's saying, there's no right or wrong answer, this situation suggest that that purpose isn't really served by denying these people bond hearings because it's different picking them up 15 years later than it is picking them up 15 minutes after they leave prison.

24:35 Rhiannon: Exactly.

24:35 Michael: It's just a different scenario.

24:38 Rhiannon: Yeah.

24:39 Peter: So if the text of the law is uncertain or convoluted, you're allowed to use your common sense, you're allowed to look at the circumstances of these people and decide what the most reasonable outcome is, the only people who don't want you to do that are people who insist on believing that the law is a means for finding objective truth. And those people deluded, you're morally obligated to contextualize these cases because anything else divorces the application of the law from the ways in which it weighs upon human beings.

25:10 Rhiannon: Yeah, exactly. And that's what we're saying, like every episode of this...

25:15 Peter: Every goddamn episode people!

25:16 Rhiannon: Every fucking episode of this goddamn podcast.

25:20 Michael: Get it through your fucking heads. [laughter]

25:22 Rhiannon: We say that there's a moral imperative actually to interpret and use the law in a way that at least takes into account it's effect on people, the material harm or good that it does on people, right? And there's actually a part in the oral argument that highlights the point that you and Michael are making, Peter, and it's a nice kind of like little example, I think of legal realism, which is what we're talking about always. The lawyer for the government, which is to say like a heartless ghoul, an extremely ugly person inside and out, he says during oral argument that like, "We have to interpret the law this way, we have to interpret the law to mean that DHS and ICE... They can come pick up these people any time after release and whenever we pick them up, they're going to be in this mandatory detention." And one reason he says we have to interpret the law this way is because Congress wanted to protect the community from criminals.

26:19 Rhiannon: And Justice Breyer actually asks a really good question, which is like, well, hold up, the community is protected by providing bail hearings, judges consider all of these factors, they consider potentially dangerous-ness in the community, that's what they're considering during a bail hearing, and they do it all the time. But if we are reading the statute the way you government want us to read it, you heartless ghoul, Breyer says "What you're doing to the individual is many who are no danger to the community, you're depriving them of a hearing that could mean their release, and what you're doing to the community reading it your way is nothing. You'll have the bail hearing, the dangerous people won't get out. You see, in terms of the purposes of the bail statute, or this statute or any other statute, if we read it technically your way, we hurt everybody in terms of the purposes, but if we read it the opposite way, we hurt virtually nobody." And so like he's saying, "why?" You're asking us to read it in this weird technical way, and the result of reading it that way is harm, people get hurt, and the purpose of the statute isn't harmed because if the purpose of the statute is to prevent dangerous people from being free in the community, well a bail hearing satisfies that purpose. But big surprise, the heartless ghoul does not have a good answer, 'cause spoiler alert, the purpose to them is harm and hurting people.

27:45 Michael: That's right. The cruelty is the point.

27:47 Peter: That's right. And I wanna make a note about government lawyers who are making these arguments.

27:51 Rhiannon: Fuck you to hell, I hope you fucking suffer, that's my point. [laughter]

27:54 Peter: If you're a government lawyer, and you're in front of the Supreme Court arguing in favor of ICE tactics, you easily could be at worst, a top tier associate at a big law firm, but more likely a partner bagging between 400 grand and like two mil a year. Government lawyers on the other hand, are making tops like 150, which means that that delta... That's how much they hate people from Mexico and Central America, right?

28:29 Rhiannon: Right, right. Your soul is trash.

28:32 Peter: They will take that pay cut so that they can just inflict harm upon immigrants. [laughter]

28:36 Rhiannon: Awful.

28:36 Peter: These people are fucking vile.

28:39 Rhiannon: Yeah, yeah.

28:41 Michael: Okay.

28:43 Rhiannon: Pigs. Pigs!

28:44 Peter: Have you ever seen a government lawyer who was wearing a decently tailored suit? 'Cause I fucking haven't, not once.

28:48 Rhiannon: Never, no. God, no.

28:52 Peter: Alright, let's put a hold on this and go to a quick ad...

0:28:56 Peter: Okay, Breyer goes on in his dissent about the correct interpretation of the statute, and like I said, I think it's fairly convincing, but then he gets to what is, in my view, a much more important point, which is that the majority's interpretation seems a lot like it might violate the due process rights of these immigrants.

29:16 Rhiannon: Yeah.

29:17 Peter: So for the record, between the majority and the concurrences, and the dissent, this entire decision is 59 pages long. And we get to page 50 before there's a real substantive discussion about whether these people are being treated fairly under the Constitution.

29:34 Rhiannon: Love that.

29:35 Peter: So Breyer points out that while it's not certain, this opinion may well violate the rights of these individuals to due process under the fifth amendment.

29:42 Rhiannon: Yeah. There's a constitutional question. Yeah.

29:44 Peter: Right, it is, after all, allowing the government to detain people indefinitely, possibly for months or years at a time without a hearing, and only because they committed a minor crime at some point in the distant past. So not only is this unjust on its face, it's less due process, like Rhi mentioned earlier, than is afforded to a mass murderer in this country.

30:09 Rhiannon: Right.

30:09 Michael: Right. And I think it's worth talking about indefinite detention a little bit because it's like a bedrock constitutional principle that the government can't indefinitely detain someone without any judicial process. That's like the writ of Habeas Corpus was originally for an English common law, like people detained extra-judicially could petition the courts for the writ and make the government show that their detention was legal.

30:33 Rhiannon: Right.

30:34 Michael: That's in the Constitution that Habeas Corpus can't be suspended except in "extraordinary circumstances" such as civil war and invasion. And you see it in the Bill of Rights with a speedy trial right. You can't just be held for years awaiting trial, at least in theory, you can't be held and indefinitely awaiting trial, but it's also in the protections against double jeopardy, right? Because if you can keep re-trying people, you could keep them in jail pending trial over and over and over without real process, the warrant requirements for arrest, so it's like built in.

31:11 Rhiannon: Yeah. Exactly.

31:12 Michael: And even in the height of the war on terror panic 2003-2004, the Supreme Court was not at all receptive to the Bush Administration saying that they could hold enemy combatants indefinitely.

31:24 Rhiannon: Yeah.

31:24 Michael: They extended Habeas Corpus protections to Guantanamo Bay, they said that people accused of being enemy combatants had to have process to challenge that designation. And so this whole idea that indefinitely detaining people without judicial processes is like disfavored strongly should be the background against which we're reading this law.

31:46 Rhiannon: Exactly.

31:48 Michael: That feels right. The government snatching people up, throwing them in a hole and throwing away the key is so fucking obviously fascist that it just seems obvious on its face that the US can't do that. But there are two big issues which is that the conservatives on the court are all fucking fascists and...

32:06 Peter: That is a major one.

32:07 Rhiannon: Right. That's a big one.

32:08 Michael: That's a big problem here.

32:12 Rhiannon: Totally anathema to democracy, having the fascists on the court.

32:15 Michael: And the other is that immigration law is where the government has the most leeway to detain people for extended periods even indefinitely with limited or no judicial process.

32:26 Rhiannon: Right.

32:27 Michael: We've talked about this before in our Trump v. Hawaii episode, going back to the 1880s, when the segregationists were on the court, and at the supreme court directions in the 1880s since then, courts have basically taken a hands-off approach to immigration and said Congress and President can run wild with this shit and they can be as racist and as fascist as they want. And so there're scenarios where the government is allowed constitutionally to indefinitely detain people, like if a lawful permanent resident goes abroad and is checking out historical sites in Petra or something, and on their way back, the government's like, "Oh, we think you were hanging out with Hezbollah. Sorry, we're not letting you back in anymore." But their home country says "We don't want 'em, we can't take 'em, they're not our citizen" or whatever, if the government doesn't have anywhere to send them, but also won't admit them, can keep them indefinitely forever without trial, without hearing, without bond, without anything, that's constitutionally okay. If you're in the United States, you have some more due process protections, which is what Breyer's sort of getting at here, which is that due process clause applies to everyone in the United States.

33:37 Michael: So there's some limits, and I don't wanna start slicing and dicing this really fine. I'm not an immigration specialist, all the different permutations. It's not super relevant. The point I wanna make is that this is an area in need of reform and not just legislative reform. Obviously, they've tried to do immigration reform in the past, Bush tried to do it, Obama tried to do it. It's a big activist push right now, but it's also on left academics, it's also on left legal types, it's also on liberal judges. We need a Federal Society coming up with bullshit arguments like they do, they come up with bullshit arguments about how the Takings Clause means that all federal regulations are illegal.

34:21 Rhiannon: Right. Yeah.

34:22 Michael: And we need like academics coming up with crazy arguments, like, the Constitution applies to Mexicans too. That's something that we need and is undeveloped. There is a law review article I read in college by Hiroshi Motomura saying basically this point, that there isn't really a good answer to the current state of constitutional law and immigration. And that article was written in 1990, and it's like 30 years later, we're at a good 130 years now of the court's abdicating their responsibility here. And it's worth saying, "What has that wrought?"

34:58 Rhiannon: Yeah, I was thinking When prepping this case, I was thinking so much about what it means for our society, what it means for our world, what it means for human beings, that ICE can act like this, that DHS can act like this, that we could hold people indefinitely like this, just because it's immigration law and immigration law is different. And you just think about what good society excluded people like this, and on this scale? That's not what makes a good society, taking people out. Do you all not get yet? Borders are fucking fake. Like, what are we doing? You know what I mean? They're not fucking real. And what makes a good society is like people feel safe, people have their needs met, people have resources, that's what makes a good society.

35:38 Peter: Yeah but Sam Alito would ask, define people.

35:44 Rhiannon: I know it's the same intellectual obstacle...

35:47 Peter: It really is.

35:48 Rhiannon: Every time.

35:50 Peter: And I think speaking of the damage that immigration law has wrought, we should talk about the elephant in the room here, which is ICE. It should go without saying that searching out these people who haven't committed crimes in many years, is part of ICE's strategy generally and ICE's strategy under the Trump administration more specifically. And the goal of it is to foster an environment where non-citizens are made to live in a constant state of fear and vulnerability, where their lives and jobs and families are always precarious, always shrouded in doubt. And the end goal, of course, is to make being an immigrant in this country so unpleasant that people stop coming here, so that the conservative White culturist blob that makes up the plurality of this country can go to Arby's without having to see a Spanish translation of the bathroom "Out of Order" sign. We see ICE employ these sorts of tactics everyday. They've targeted immigrants who are leaving hospitals or dropping their kids off at school. ICE agents in El Paso told a family that they had to deport either the mother or the father and made their three-year-old daughter choose.

37:12 Michael: Jesus Christ.

37:13 Peter: They fucking made a whole movie about that. That's a Sophie's Choice, right? Jesus Christ. These people are fucking monstrous and their tactics are designed to create chaos, and so uncertainty. And I'm not speculating about that strategy here, a Trump administration official on the National Security Council said in an email, in 2019, "My mantra has persistently been presenting aliens with multiple unsolvable dilemmas to impact their calculus for choosing to make the arduous journey to begin with."

37:47 Rhiannon: Right. They're upfront about it.

37:49 Peter: Right.

37:50 Michael: Yeah. Fucking Mitt Romney talked about this shit, making them self-deport.

37:53 Rhiannon: Right.

37:54 Michael: That's the whole idea, it's ethnic cleansing. That's what it is.

37:58 Peter: The ability of ICE to show up years after an immigrant has served his or her time for a crime and put them into indefinite detention is part of this broader strategy of filling their lives with chaos and uncertainty and a judge evaluating this law, someone in the Supreme Court's position here is not obligated to disregard that, it's obligated to actually consider it. It needs consideration in determining whether this practice is fair or sensible. And the only reason you could think that this is fair or sensible is if you believe that being a non-citizen in this country makes you less worthy of human dignity and more deserving of suffering than citizens. There's no other conclusion you can draw.

38:39 Rhiannon: Yeah, exactly, that's it. That's all there is to it. And Peter alluded to and give some examples of tactics that ICE use, it's basically the fucking SS. It is a secret police coming through communities, raiding and kidnapping people. Like Peter said, they're at hospitals, there was a report out of Michigan that an Iraqi immigrant was threatened with deportation by ICE while he was at the hospital, even though what he was doing at the hospital was being a bone marrow transplant for his niece.

39:10 Michael: Jesus!

39:12 Rhiannon: A Salvadoran immigrant, Sara Beltrán Hernández, she was removed from a hospital where she was undergoing treatment for a brain tumor. In another report two undocumented parents in Texas were only allowed to take their infant to the hospital for treatment of a really dangerous stomach issue, if they agreed to turn themselves in to ICE afterwards. I have driven by or been at hospitals in South Texas where ICE and Border Patrol are just set up, and you have to start thinking about what this means for actual public safety and public health. If people are afraid that they're gonna be picked up by fucking ICE, by the police at the hospital, then people don't go to the hospital. You're discouraging people from going to the hospital, when they need treatment, when they're sick and when they're hurt. ICE hangs out at the courthouse. They're waiting for people to come to do what they lawfully should be doing and are ordered to do by showing up on criminal cases, family cases, civil cases, cases that are completely not tied to immigration law, ICE agents will often be hanging out in plain clothes at courthouses to pick people up.

40:17 Rhiannon: I have been in the position of being a lawyer representing people on criminal charges who are undocumented, and being in a position of having to tell those people what to do because ICE is at the courthouse that day. ICE, they'll raid apartment complexes, they will raid neighborhoods, they'll raid places where immigrants work, they will place families and communities under prolonged targeted surveillance. ICE agents are known for loitering outside homes or outside apartment complexes watching families, and they very commonly, very often use kind of ruses and undercover activity to trick people. They will pose as employers who are looking to hire workers.

41:01 Michael: Jesus.

41:02 Rhiannon: They will come knock on the door of a family, they will present a photo of somebody who doesn't really exist, they know that the family doesn't know this person. And they'll make up a name knowing that the family will say like, "I don't know this person and this person doesn't live here." But they'll use that to get into the house to say, "Okay, well, if this person that we're looking for doesn't live here then we can come into your house." And then they just arrest the whole family.

41:25 Rhiannon: And the way that ICE picks people up, oftentimes, family members, loved ones, they sometimes have no idea where their loved one is. I had a case where I represented a client on a criminal charge, now I don't remember what the criminal charge was, but it was for sure a misdemeanor. And when I was appointed to represent him and when I met him, he was at the county jail after he had just been arrested on the criminal charge, and somehow ICE finds out that he is in jail. All of the sudden, my client and the father in this family is no longer at the jail, and it was like a missing person, nobody can say where this guy is, nobody can say where he's been taken. I went to border patrol stations looking for him, we did not know where this person was until he called his wife the next day from Mexico. It's incredibly violent, it's incredibly pervasive the way they act.

42:25 Peter: And look, we mention these because these are tactics designed to create chaos, and so is ICE's interpretation of this law and the government's interpretation of this law. In this case, it is designed to create uncertainty in the minds of immigrants. I was arrested and served time for a minor crime 12 years ago, might I get picked up at any point in the future and indefinitely detained without bond? Maybe. It's something that always weighs on your mind. And there are ways to fight back. You can call up ICE and tell them that you know where an illegal immigrant is, and you give them the location, but right in front of the location, there's a hole and you cover it with sticks and leaves and when they walk over it, they will fall into the hole and now they're trapped.

43:16 Rhiannon: Yeah. Lead them to the edge of a cliff, but then in front of the cliff, you put a screen that looks like the road still continues.

43:23 Michael: Right, you paint the road.

43:24 Rhiannon: Yeah, yeah, yeah. Exactly. Perfect.

43:29 Peter: Alright, the central premise of our podcast is that the courts' decisions are driven by ideology. So don't mistake us. Whatever you think the most reasonable interpretation of this statutory language might be, it's not a coincidence that Sam Alito doesn't give a shit about the lives and well-being of immigrants. His disregard for their dignity is front and center here.

43:51 Rhiannon: Exactly.

43:52 Peter: That's what legal formalism is, it's about creating a network of rules, and when those rules tread on the lives of human beings, you just shrug and point back at the rules as if your hands were tied. If you take the formalistic reasoning away, Alito would still land in the same place because he is an ideologue.

44:09 Rhiannon: Yeah.

44:10 Peter: But what formalism offers him is a place to hide, it allows him to say that the language of the statute rather than his preferences about how immigrants are treated, compelled him to rule the way that he did. Without it, at the very least, his real motivations would be laid bare. He is at the very least forced to defend the cruelty of his position for what it is. Legal analysis as it exists right now, serves primarily as a shroud over the reality that the practice of law is the manifestation of existing power structures, and that disagreements over laws are actually ideological disagreements about where power should and should not sit. Peeling that away, won't fix the problem of reactionary little cockroaches like Justice Alito but it would shine a light on them, and maybe send them scuttling back into the floor boards where they belong.

45:05 Rhiannon: Oh, tell 'em.

45:05 Michael: Fuck yeah dude.

45:06 Rhiannon: Little extended metaphor for you.

45:07 Peter: That's right.

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45:19 Peter: Alright, next week is Flood v. Kuhn. A case about baseball, labor rights and racism all wrapped up in one.

[laughter]

45:29 Rhiannon: Perfect.

45:32 Peter: And maybe a strong contender for the dumbest Supreme Court opinion of all time.

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45:41 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.

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46:04 Leon Neyfakh: From the Westwood One Podcast Network.