Gonna Get Worse Before It Gets Better
The big weekend news came late Friday when a three-judge panel of the 5th Circuit Court of Appeals upheld a key element of the Trump administration’s policy of mass detention of migrants.
While the ruling from the uber-conservative appeals court wasn’t unexpected and is surely headed to the Supreme Court for final resolution, I wanted to take this opportunity to briefly explain why the particular unilateral policy change at issue has been so important in driving the misconduct we’ve seen since last summer.
Without getting lost in the weeds, this is the change the Trump administration made: Despite 30 years of government practice, it re-interpreted a 1996 law to allow it to detain migrants anywhere in the country without a bond hearing. Previous administrations had only applied one section of the law in that way at the immediate border. Everywhere else, under a different section of the law, undocumented immigrants were allowed to be released and were entitled to a bond hearing before deportation.
Federal judges around the country — faced with a resultant wave of habeas petitions — have widely rejected the Trump administration’s interpretation of the law. The 5th Circuit accepted the administration’s new interpretation and its decision applies within Texas, Louisiana, and Mississippi to “every undocumented immigrant who originally entered across the border, no matter how many decades in the past,” notes one expert.
“The ruling is nonsensical and wrong, but it is also particularly horrifying in this moment. The consequences are all the more alarming, building, as it would, on the Supreme Court’s shadow docket order that unleashed Kavanaugh stops, ultimately, across the nation,” Chris Geidner wrote in reaction to the ruling.
For a deeper dive on how the 5th Circuit came to have this case that it ruled on so quickly and on where this goes from here, Georgetown law professor Steve Vladeck has a very granular analysis.
A few broader points:
- The administration was never going to hit its deportation targets if everyone in the interior got a bond hearing, so it dispensed with the bond hearings.
- The ability to detain anyone without a bond hearing not only accelerated detentions, but it effectively allowed the administration to give up on targeted operations and detain anyone based on skin color, accent, and other blunt and outright racist outward indicia of being an immigrant.
- U.S. citizens have been increasingly swept up in the indiscriminate raids, traffic stops, and detain-first-ask-questions-later operations we’ve seen most recently in Minnesota, but not just there.
Despite its repeated losses in court, the Trump administration has not reigned in its operations but rather continued to force judges to overrule them over and over again. The 5th Circuit decision is going to buttress the administration’s legal approach and fuel even more of the growing chaos of the past several weeks.
U.S. Public Health Service Confronts Migrant Detention
- Nearly 400 officers in the uniformed U.S. Public Health Service have done monthlong tours helping to provide basic medical care to detainees at hastily constructed ICE detention centers nationwide, NPR reports. It spoke with six Public Health Service officers who said they planned to leave or had already tendered their resignations due largely to recent or impending deployment to ICE facilities.
- In particular, some U.S. Public Health Service officers are quitting over assignments to the ICE detention center at Guantánamo, Wired reports.
Trump DOJ Watch
- NYT: Prosecutors Began Investigating Renee Good’s Killing. Washington Told Them to Stop.
- Reuters: DOJ unit on police misconduct sees staffing plunge and probes scaled back
- NYT: Demanding Support for Trump, Justice Dept. Struggles to Recruit Prosecutors
Citizenship Question Is Baaaack
NPR’s Hansi Lo Wang explains how the census citizenship question that was vanquished in Trump I has snuck back into the conversation in Trump II.
Midterm Election Interference Watch
- TPM’s Hunter Walker: A Conspiracy Fueled Report Preceded ‘Black Pill’ Tulsi Gabbard’s Fulton County Election Raid
- U.S. District Judge J.P. Boulee ordered unsealed most of the legal case in which Fulton County is challenging the seizure of its 2020 voting records and gave the Trump DOJ a Tuesday deadline to file the affidavit it used in support of the search warrant.
- The Trump DOJ has removed an important manual — Federal Prosecution of Election Offenses — from the website of its Election Crimes Branch, former Obama White House Counsel Bob Bauer notes.
Quote of the Day
“The presumption of regularity that has been previously extended to [the government]
that it could be taken at its word—with little doubt about its intentions and stated purposes—no longer holds.”—U.S. District Judge Mustafa T. Kasubhai of Oregon, in a sweeping rebuke of the Trump DOJ’s nationwide push to seize state voter rolls
The Gabbard Whistleblower Complaint
A series of news reports Saturday began to flesh out some of the details of the whistleblower complaint that DNI Tulsi Gabbard has been sitting on for months:
- The Guardian: The National Security Agency last spring “flagged an unusual phone call between two members of foreign intelligence” discussing an as-yet-unidentified person “close” to President Trump. The NSA’s intelligence report was brought to Gabbard, who “took a paper copy of the intelligence” to White House chief of staff Susie Wiles and instructed the NSA not to publish it. The person close to Trump is neither an administration official or a special government employee, reported The Guardian, which walked back an earlier version of its story that said the phone call was directly between a person associated with foreign intelligence and a person close to Trump, after the whistleblower’s lawyer said he misspoke.
- NYT: The intercepted conversation between the two foreign nationals involved Iran.
- WSJ: In a followup story, the WSJ also confirmed that in the phone call between “individuals linked to a foreign government” they had a conversation that “at least in part, concerned issues related to Iran.” The WSJ also confirmed that Gabbard met with Wiles “to discuss the matter.” After that meeting, Gabbard “worked to limit the sharing of the intelligence concerning the call,” the whistleblower complaint says, according to the WSJ.
Known Death Toll in U.S. Boat Strikes: 119
A U.S. attack Thursday on an alleged drug smuggling boat in the eastern Pacific killed two people, according to US Southern Command, bringing the death toll in the lawless months-long campaign to at least 119.
Pretty Big Deal
The Energy Department violated the Federal Advisory Committee Act of 1972 when Secretary Chris Wright handpicked five researchers who reject the scientific consensus on climate change to work in secret on a sweeping government report on global warming,
U.S. District Judge William Young of Boston ruled on Friday.
As Lisa Friedman reports, EPA administrator Lee Zeldin cited the bogus Energy Department report to justify a plan to repeal his agency’s landmark scientific determination — the endangerment finding — that greenhouse gases endanger public health, which serves as the legal foundation for federal regulation of climate pollution.
Freak of the Day
Palate Cleanser
You’ve probably seen clips of Ian McKellan performing “The Strangers’ Case” speech from the Shakespeare-inflected play “Sir Thomas More” on Colbert last week, but the setup for the monologue is worth a watch, too. It begins at the 20:00 mark:
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