How deportation broke the courts

0:00Noel King:Lawyers for the Department of Justice are crashing out. The Dow, the Dow right now is over, the Dow is over$50 ,000. I don't know why you're laughing. You're a great... Not Pam Bondi. That's a separate issue. No, the lawyers tasked with prosecuting immigration cases for the Trump administration are quitting, saying they have too much work. One DOJ lawyer in Minnesota got a lot of attention last week when she told a judge, quote, this job sucks. A former DOJ chief of staff tweeted in desperation. If you're interested in being an assistant U.S. attorney, DM me. To which someone replied, your DMs aren't open.

0:40Noel King:When President Trump sent ICE into Minneapolis to run amok, his administration was bound to get sued. A bunch. The problem is, he's running out of lawyers. That's coming up on Today Explained.

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2:20This is Today Explained.

2:23Noel King:Kyle Cheney is a senior legal affairs reporter for Politico who's been reporting on a ruling from the Fifth Circuit Court of Appeals. It's a federal court that was handed down late last week. And the court said what exactly, Kyle? So for months, the Trump administration has been mounting this aggressive, not just a mass deportation effort, but a mass detention effort where anyone they want to deport, even if these are people applying for asylum or seeking other legal pathways to remain in the United States, they're locking them up, essentially, in a way that no previous administration ever has.

2:54And the way they're doing that is reinterpreting old laws and trying to apply them in a different way. Up until now, only recent border crossers were really subject to mandatory detention. Then came the second Trump administration, now implementing this mandatory detention policy, saying that with very few exceptions, when a migrant is apprehended in these ICE enforcement operations, the government is compelled to detain them without bond as they fight their deportation. And courts around the country have been rejecting this over and over hundreds and hundreds of times. However, the Fifth Circuit Court of Appeals, a very conservative panel of the Fifth Circuit Court of Appeals, ruled on Friday that the administration's interpretation of those old laws was correct and that they could continue this mass detention campaign on top of their mass deportation campaign.

3:42Noel King:What was the Fifth Circuit's reasoning here? So it's somewhat nuanced and complicated, but the idea is whether you treat people who have lived in the United States maybe for decades, no criminal records, people who have built lives here, you can treat them as though they have just arrived in the country, essentially call them arriving aliens is the term in the law. And again, no previous administration has interpreted it this way, but it is a convoluted aspect of these old laws. And, you know, then the Fifth Circuit said that what this administration is doing may be different, but just because they're exercising power in a different way doesn't mean it's wrong and they backed them up.

4:15Noel King:OK, so the Trump administration says we're going to interpret this law differently. Do we know how the Trump administration landed on the notion that they could interpret the law differently? I don't know necessarily how the deliberations played out, but they did implement this through, it's very discreet. It was a July 8th policy memo from ICE's acting director, Todd Lyons, that basically said, you know, the old way is wrong. We're doing it a new way. And since that day, we've seen this slow explosion of these cases. And now it's not slow anymore. It's all over the country. Every state is seeing these detention cases.

4:48We are seeing thousands of cases in court. These are people who are being grabbed under this new policy and saying that's illegal. You can't do that. So it's been building. And now with Minnesota being the center of this deportation effort, we're seeing a ton of cases come out of there. I see maybe 300 new cases a day around the country. And that's a big uptick from what it used to be, where it was 40 or 50 of those prior to the July memo from ICE.

5:11Noel King:All right. And you said that other judges had previously rejected the Trump administration's interpretation of these laws until they hit the Fifth Circuit. You reviewed some of the comments from those other judges. What do they argue here? What they say is, number one, it would be kind of shocking if for 30 years every other administration had this power to mass detain people and didn't realize it. That would be a little unusual for people not to have known that. If Congress had authorized this mass detention strategy, maybe they would have been a little more explicit about it than some sort of nuanced reinterpretation of ambiguous language in an old law.

5:47And so that's what they point to. And they say, look, someone who's lived in the United States for decades is not an arriving alien. Just the plain meaning, the common sense reading of that. They also point to a Supreme Court ruling from a few years ago that kind of endorsed this divide between arriving and people who are crossing the border and can be detained in a mandatory way. You know, one of the most pointed responses we saw was from the judge who opposed the Fifth Circuit's view. She was the minority judge on this three-judge panel that ruled. Her name is Dana Douglas. She said in a sort of memorable line, she said, straining at a gnat, the majority swallows a camel.

6:21And what I think she's saying there is by sort of parsing this sort of minutia, this sort of confusing verbiage to sort of justify the administration's view of mass detention. They've opened up this sort of Pandora's box. It's going to lead to untold consequences for the country and for a lot of people that maybe they didn't intend to unleash.

6:42Noel King:All right, so this was a ruling by the Fifth Circuit, which means it does not apply to the whole country? Right. The Fifth Circuit covers Texas, Louisiana, and Mississippi. The important caveat to that, though, is enormous number of these cases are coming out in Texas, because even when people are arrested in Minnesota, ICE is flying them sometimes very quickly to Texas, where they have a lot of detention facilities and also they have a more favorable judiciary. And so that's somewhat by design. And so there are a number of places and some judges have already said we reject the Fifth Circuit's ruling, you know, where we where we are because we're not bound by the Fifth Circuit's decision.

7:18And so that will affect a lot of cases. But a huge number of them do come through Texas.

7:22Noel King:At a certain point, does this become a national law? I guess it would have to hit the Supreme Court, right? Right. And I do expect that it will land there. I mean, number one, you know, not just the Fifth Circuit. I mean, again, these cases have been playing out everywhere, thousands of them. And what I've seen is, you know, I've counted it more than 3 ,000 times. Judges have rejected the administration's view of this policy. And that includes, you know, many judges appointed by Donald Trump himself. I think the number is something like 370 judges have opposed this to only 27 who have sided with the administration on this policy.

7:54So the balance, now that numbers game doesn't tell you everything. If a circuit rules, a circuit rules and it kind of overshadows the lower court rulings. But the prevailing consensus view of the legal world, the judicial world, is that the administration's gotten it wrong. And I suspect that will show up in other circuits. And that the Supreme Court will say, look, if the courts are divided all over the country on this, we have to take it up.

8:14Noel King:We know that some Americans are sort of horrified by the way that this has been playing out. We also know that there are Americans who are supportive of what the Trump administration is doing. One thing I've noticed that seems to bother Americans across the spectrum is stories of American citizens getting caught up in the immigration crackdown. It seems I could be wrong. It seems like that is avoidable. And yet, you know, you hear these horror stories. Why is this happening? So it is happening. What do you mean an overstate? An overstate. I don't know what that is. Where were you born? I'm from California.

8:49Don't lie to me. Where were you born? California. OK, so we're going to take you in and verify your information. No, you're not, dude. No, you're not. And I told him I was an American citizen. And he looked at his other partner, like, you know, smiling, like saying, can you believe this guy? I asked when I would be able to speak to a lawyer. They never let me. They never told me what I was charged for. They just kind of threw me in there and didn't care. And, you know, I think the more frequently that it happens, the more it shines a pretty striking light on the mass deportation strategy overall.

9:23I think it's because we've seen the courts bless, the Supreme Court in particular, bless this notion that race can be a factor in the way, you know, and accent and language can be a factor in the way immigration officers do deportation stops, detention stops, arrests to, you know, at least make an inquiry about someone's status. And a lot of times, if they don't get a satisfactory answer, someone can be arrested. They might have documentation. Maybe it's not with them. Maybe they're not going to walk around carrying papers if you're a U.S. citizen. This hasn't been something we've had to do or think about for the most part.

9:58Now it's becoming more of a reality where people are getting swept up because of the, again, the sort of roving, sweeping effort to detain so many people. It's very easy. The notion that someone could get swept up as a U.S. citizen is very easy. and then proving that, especially in a scenario where we just talked about where immigration courts are denying bond, denying even a chance to prove yourself, that could become very complicated if you're a citizen. Say, hey, I'm a citizen. And they say, well, we can't give you a bond hearing. Well, that's the nightmare scenario.

10:25Noel King:Where do you think all of this is headed? Well, certainly the Supreme Court. That's just in terms of, you know, the most practical sense of that word is I think the Supreme Court's going to have to decide, is this mass detention strategy viable? Is it a legitimate interpretation of the law? And then if they say yes, that does sort of reorient the way we view due process in this country because it is, again, immigrants, people who are charged with sort of deportable in a civil sense or they're being told they can be deported have typically had multiple ways to sort of prove that they should be able to stay here, whether it's through asylum or through other forms of legal status.

11:07and this sort of flips it on its head and makes the process so onerous and so punitive that a lot of people may just give up and not even bother with it, which is, I think, part of the strategy by the administration.

11:24Noel King:Kyle Cheney, he covers legal affairs for Politico. Coming up, why so many Department of Justice lawyers are crashing out.

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15:22Oh, yay. Oh, yay. Oh, yay. Oh, yay. This is Today Explained. I'm Ian Milhiser. I cover the Supreme Court here for Vox.

15:34Noel King:You recently wrote about a Department of Justice lawyer named Julie Lee, who, as I understand it, looked a federal judge in the eye and said, this job sucks. What happened? Yeah, she said more than that. At one point, she said that sometimes she wants the judge to hold her in contempt so she can get a night's sleep. So yeah, what happened here is that Lee was an attorney for the Department of Homeland Security. She volunteered to take an assignment with the U.S. Attorney's Office in Minneapolis, which is handling this enormous crush of cases caused by the ICE occupation of Minneapolis. And the workload they gave her was just insane, completely unmanageable by any one attorney.

16:23She apparently was assigned to 88 cases in a single month. And, you know, that incredible workload was placed on one lawyer turns out to be a microcosm for a lot of the dysfunction that is happening in Minneapolis.

16:39Noel King:88 cases. How many cases a month is normal? Do you know? So the short answer is it depends on the complexity of the case. You know, I've known lawyers who would spend months and months preparing for one trial, although that, you know, would be a very complex trial. I look for professional guidelines on this and like the professional guidelines say that prosecutors generally shouldn't be assigned more than 150 cases in a year. And this woman was assigned 88 cases in a month. Oh, OK. Yeah. So that's about six or seven times more work. She was doing the work of about a half a dozen lawyers. And explain what Julie Lee's job is and what she said she was struggling to get done.

17:23Yeah. So this is like somewhat counterintuitive. But like it turns out one of the reasons why immigrants are being treated so poorly in Minneapolis is because there aren't enough prosecutors. And like normally you don't think of prosecutors as being a good thing for people who are being locked up. Right. But what's happening is a lot of these immigrants are being detained illegally. Judges are issuing orders saying, no, no, no, no, no. You have to you have to release this person. There's one judge who complained that there are more than 90 court orders that the Trump administration has defied.

17:59This month, the court has found ICE has violated 96 court orders in 74 cases. ICE has likely violated more court orders this month than some federal agencies have in their entire existence. And it looks like a huge reason for that is that the Trump administration, like they surged law enforcement officers. At its peak, there were 3 ,000 law enforcement officers that the federal government sent to Minneapolis. But they didn't send lawyers. They didn't send additional clerical staff in the detention facilities. And so what happens is a judge issues an order saying, hey, you need to release this person.

18:41They're being detained illegally. And normally that order would be sent to the lawyer. The lawyer would notify the detention facility of it. The detention facility would tell the guards, hey, you got to turn the key and let this person go. And, you know, the process would get underway. But because they surged the capacity to arrest people without adding additional personnel for all the legal compliance things that go into something like a massive occupation of a U.S. city, judges are issuing orders to release people and those orders are not being followed.

19:14Noel King:OK, so ICE is not following court orders because it sounds like in your telling they can't. They don't actually have the manpower to do it. What happens when the government cannot comply with court orders? I guess let me first answer what happens when someone other than the government defies a court order. Cool. And the answer is that you are held in contempt if you really, really defiant. And then there could be all sorts of legal consequences. You can be fined if you are held in contempt. You can be thrown in jail if you are held in contempt. But those contempt orders are enforced by the Department of Justice.

19:53It's the U.S. Marshals Service, which is an arm of the Department of Justice, that will come and take you to jail if a judge orders you jailed if you're thrown in contempt. So there's sort of this standoff going right now where you've got the Trump administration is violating all kinds of court orders. You know, as I said, like one judge counted more than 90 court orders that are that are being violated. You know, in theory, like a judge could order the head of ICE thrown in jail. But is the Justice Department actually going to enforce this order? So there's a bit of a harrowing dance going on right now where judges are trying to pressure the Trump administration to comply.