This episode begins with Mary and Andrew digesting the 2-1 decision from the Fifth Circuit Court of Appeals halting the Trump administration’s ability to use the Alien Enemies Act to deport Venezuelan nationals accused of being members of Tren de Aragua. Andrew calls the administration’s recent arguments “outlandish” before moving to the questionable legality of the U.S. military’s deadly boat strike last week — an unprecedented action which left eleven dead. Next, they move to Monday’s Supreme Court decision undoing limits set by a lower court on how ICE conducts immigration raids. Plus, a federal judge issues a win for Harvard University on the topic of frozen and terminated funds.
Further reading: The 5th Circuit Court of Appeals’ ruling on Trump’s invocation of the Alien Enemies Act to deport Venezuelans
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Note: This is a rough transcript. Please excuse any typos.
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Andrew Weissmann: Hello, and welcome back to “Main Justice.” It is Tuesday morning, September 9th. I am Andrew Weisman and I am here with the wonderful Mary McCord, fresh from her NPR stint.
Mary McCord: Yeah. Yeah. It’s a busy morning. Just was on NPR 1A, one of my favorite NPR shows.
Andrew Weissmann: Yes. But I’m fresh off of Squirdle. You know what Squirdle is?
Mary McCord: No. Is it like Wordle, but not?
Andrew Weissmann: My god, wow. Yeah. Yes, exactly. I’m fresh off of Wordle as well and Connections and Strands.
Mary McCord: Okay.
Andrew Weissmann: It’s like my morning routine, but I feel like one of those old cars that needs to be like cranked up, and so I have like a set order. And so, Squirdle is the last thing I do to get the brain like click it in. So, one of us is like saving democracy and going on air to talk about all of the litigation you’re bringing and the big take, but me, it takes a while. Okay. With that long boring introduction —
Mary McCord: That’s what coffee is for, right, so there we go.
Andrew Weissmann: So, Mary, surprise, there’s a lot to talk about.
Mary McCord: There is. So we’re going to start with the decision from the Fifth Circuit last week. That is actually the Fifth Circuit taking a case back on remand and determining that the Alien Enemies Act does not apply to the efforts to remove members of Tren de Aragua from the country because the court there concluded in a 2 to 1 decision that there is no invasion or predatory incursion. We will talk about that. We will also talk about the strike. The, frankly, shocking strike that our military took last week on a boat, apparently occupied by 11 people traveling in waters. That’s a little unclear to me which direction they’re going, whether they were headed to the United States or headed to Trinidad and Tobago. The evidence is unclear on that. But so, allegedly that these were drug cartel members and the government decided, under the president’s order, to strike that boat and it killed all 11 people.
Andrew Weissmann: To kill them.
Mary McCord: To kill them.
Andrew Weissmann: The president decided to kill them.
Mary McCord: That’s right. And so, we will talk about sort of the legality of that. Frankly, that could be an entire episode and probably —
Andrew Weissmann: I know.
Mary McCord: — should be, but we don’t have an entire episode.
Andrew Weissmann: Right.
Mary McCord: But we will talk something about it. Then we will move on, of course, to another remarkable thing that happened, which was the Supreme Court yesterday staying the decision we’ve talked a lot about coming out of Los Angeles that enjoined ICE raids based solely on perceived race and ethnicity, speaking Spanish, working as a day laborer or that type of job and being it at day labor locations. And in an unreasoned opinion, the justices stayed there.
Andrew Weissmann: Yeah, another shadow docket case.
Mary McCord: That’s right.
Andrew Weissmann: Yeah.
Mary McCord: We have a concurring opinion from Justice Kavanaugh, and we have a dissent from Justices Sotomayor, Kagan and Jackson, but it’s really pretty amazing and we’ll talk about that. And last up, and this is now seeming like ancient history, there was a big district court win for Harvard last week, challenging the administration’s termination of many, many different grants that supported incredible research coming out of Harvard. And this is a big win from Harvard, probably not the last we’ll see of this. And then if there’s other time, we’ll talk about a few other things, but I suspect that’s probably going to take us through.
Andrew Weissmann: Yeah, I think that’s right. But you know, this is unbelievable because you and I were talking about like what we should cover and I’m going to now briefly mention something that in normal times i.e., not now —
Mary McCord: Would get a whole lot of yes.
Andrew Weissmann: Would be like front page news. And I’m not talking about the Jeffrey Epstein stuff that was released yesterday. I’m talking about E. Jean Carroll yesterday had a huge win in the Second Circuit because a second one of her judgements, this was the large one for over $80 million —
Mary McCord: That’s right.
Andrew Weissmann: — was affirmed by the Second Circuit. Normally —
Mary McCord: We would talk about that.
Andrew Weissmann: Right. This is amazing that we’re sitting like, this is a judgment against our sitting president for over $80 million emanating from what was found by a jury first to be sexual assault and then different forms of defamation. This grew out of the defamation part. This tells you how normalizing this sort of lawlessness and callousness has become that this is like, yeah, that’s like a little aside. We don’t have time for that.
Mary McCord: Yeah.
Andrew Weissmann: That there’s an $80 million judgment that was affirmed by the Second Circuit by a woman —
Mary McCord: Yeah.
Andrew Weissmann: — who won twice against the president.
Mary McCord: Right.
Andrew Weissmann: Okay.
Mary McCord: And, you know, rejecting all of the president’s arguments. And I just realized while you were explaining that, and I’m glad you did. That the other thing we will talk about today is the District of Columbia attorney general has sued over the deployment of the National Guard here in D.C. So we will talk about that as well.
Andrew Weissmann: Yeah. So the Fifth Circuit, which is normally quite a conservative bench, as you said, had a 2 to1 decision trying to decide, one, what is the role of the court here in evaluating presidential action? Here, the president issued a proclamation and said that he, under the Alien Enemies Act, has determined that there’s some sort of invasion or, what is it, predatory incursion —
Mary McCord: Incursion, right.
Andrew Weissmann: — that is going on. And so, he wanted to seize and extract, under that statute, various people. There’s a long procedural history to this, but essentially it was back before the Fifth Circuit to decide what sort of the role of the court how much deference does it give. And the majority, which is the two, basically said, look, there is a role of the court here to decide. What did the words in a statute mean? What does it mean to have an incursion? How do you interpret that? And is an incursion or an invasion, those can have various definitions, but it said before we get to like what it said, it means, it said the court actually does have that role. The president can decide factually what is happening. And it can say, I have determined that X is happening, but the court gets to —
Mary McCord: Mary McCord: In this case that the Maduro regime in Venezuela is directing the activities of Tren de Aragua coming into this country.
Andrew Weissmann: Right.
Mary McCord: That’s essentially the factual finding of the president in his proclamation.
Andrew Weissmann: And what’s sort of interesting is the majority actually said, we’re going to defer on that even though, by the way, substantial questions as to whether this is really a foreign government doing that.
Mary McCord: That’s right.
Andrew Weissmann: The issue was, the court said, it’s for us to decide what is the definition here. They also said, it’s required that the president actually make some sort of factual finding because the court then needs to decide, do those facts comport with what the court says is the law. So here, just to give the bottom line up front, the court said, when interpreting these words about war, invasion, predatory incursion, it naturally assumes this has to, in somehow, involve the military and the military of a foreign government or nation. And that would be the natural way that, thinking about this, it was what they determined Congress intended. And so, then it just applied the facts to that legal definition.
Mary McCord: Yeah, that’s right. And just to be clear, the Fifth Circuit wasn’t just starting from scratch to say, we get to interpret the meaning of the Alien Enemies Act. The Supreme Court had said many decades ago, and then had repeated more recently in its JGG opinion, that there is judicial review as to questions of interpretation and constitutionality of the Alien Enemies Act, as well as whether a person who was being removed under that act is in fact an alien enemy 14 years of age or older. So those two different things.
And what Judge Southwick writing for the majority did is he took a very, very originalist approach to interpreting the language of that statute. Right? So when he was determining what is an invasion, he looked to dictionaries from around 1798, when the Alien Enemies Act —
Andrew Weissmann: Yeah.
Mary McCord: — was first enacted, you know, how was invasion defined? He looked at the use of the word invasion in the U.S. Constitution because it’s in the militia clauses, which give Congress the authority to call forth the militia in cases of invasion, He looked at the habeas clauses, which is also about habeas could be suspended during times of invasion. And he then concluded, I should say, the majority then concluded that what this all means is that invasion is an act of war involving entry into this country by a military force directed by another nation with hostile intent. Then, as you said, he looks at the facts here, says, even if we take what the president claims, right, that Tren de Aragua is using, I think, irregular warfare, I think was the language used. He says, there’s nothing about even the facts that the president has put in his proclamation that equaled an invasion under this historically grounded definition.
Andrew Weissmann: Yeah.
Mary McCord: And then he did the same for predatory incursion. He looked at the contemporary usage —
Andrew Weissmann: Yeah.
Mary McCord: — all kinds of examples of what when people used terms like incursion, back in the late 1700s and early 1800s, and concluded there as well that a predatory incursion involves armed forces engaged in something less than an invasion but directed also by a foreign nation. He then looked at, again, how do we apply the modern acts what’s happening now? How do we interpret what’s alleged to be happening here? How do we interpret whether the act applies to that? And he said, encouraging residents to enter the U.S. illegally is not the equivalent to sending armed forces. Drug trafficking, essentially, doesn’t change that.
Andrew Weissmann: Exactly. And that basically says like here, the administration is applying a statute that does not fit. The dissent disagrees. So it’s 2 to1 —
Mary McCord: For like 140 pages.
Andrew Weissmann: Yeah. Very, very long, everyone writing at length, knowing that this is going to go to the Supreme Court. There’s some other issues I just wanted to flag. One, what is not an issue in this opinion and remains as an issue that the plaintiffs, the people bringing the suits, still are going to be able to litigate, is whether if they were, for instance, to have lost here, they still get to litigate. Are they themselves in the group? Are they part of TDA? Are they in that gang? That is a factual issue that remains to be determined. And I think that’s one that the court is going to say, they have the ability to litigate and it’s what we term justiciable.
Mary McCord: Yeah.
Andrew Weissmann: The second issue was due process. And there was an issue about whether there was sufficient notice here. And here, the court sort of flipped the other way. It was 2 to 1, but it was 2 to1 with the majority saying that there was sufficient notice here and one person saying there was insufficient notice.
Mary McCord: Well, let’s just clarify that a little bit. So this is after the Supreme Court had said less than 24 hours’ notice is clearly not enough. So Fifth Circuit on remand determined what would be enough. After that, the government put out new guidance saying that it would give seven days’ notice. The notice would explain that you have a right to an attorney and that kind of thing. And that’s where you’re right. It was 2 to 1. The dissenting judge, Judge Oldham, along with the majority opinion writer said seven days, it’s close to some —
Andrew Weissmann: Close enough.
Mary McCord: — comparable things.
Andrew Weissmann: Yes.
Mary McCord: Good enough. The one other judge said 21 days would be the minimum. It takes time to find attorneys, et cetera, et cetera. To your first point, about the right to challenge whether you’re a member of Tren de Aragua, and this is something that the Supreme Court, I think had been fairly clear. People get a chance to challenge whether they’re an alien enemy. And in this case, it was the president who said its Tren de Aragua who is the alien enemies.
Judge Alderman, his dissent not only said, essentially, there’s just no judicial review available here. The president has plenary and complete and conclusive authority to make whatever decisions he wants and we can’t look behind it. He also goes so far to say that a person, and this is farther, I think, than the Supreme Court went, that a person should not be able to even challenge whether they’re a member of Tren de Aragua, only whether they are Venezuelan citizen, because the Alien Enemies Act is about citizens of a country, not about a particular subcategory of those, and that is all that they would be able to challenge. And so, I think it’s kind of extraordinary how far he went in his dissent.
Andrew Weissmann: I completely agree and it tells you how the sort of Overton window is shifting. One of the things that I found remarkable in the majority was when the court goes back to look at old precedent and looks at what the court was doing and what people were doing in connection with the war of 1812, where there was the second huge war with Britain, and says, look, bringing a little reality into the discussion saying there is a whole world of difference between Britain having an existential war with the United States where there was an actual physical invasion of the country by a foreign nation that could end our country as we know it. And what the president is claiming here, which is that people are part of a drug gang.
Mary McCord: Right.
Andrew Weissmann: I mean, it was just like, you’ve got to be kidding —
Mary McCord: Yeah.
Andrew Weissmann: — that we are going to look at 1812 as models for this, which the majority had to deal with because —
Mary McCord: They did.
Andrew Weissmann: — that is what the government was saying. Just to be clear, the government has been taking these sort of very, very outlandish positions about what happens to extracting residents of our country.
Mary McCord: While we’re on the topic of outlandish, let’s talk about —
Andrew Weissmann: Yeah.
Mary McCord: — the position of the U.S. government with respect to the strike on that boat. The administration has justified that strike by describing it as against a designated terrorist organization in defense of U.S. national interests and in the collective self-defense of other nations. Now, I’m not even sure it was Tren de Aragua.
Andrew Weissmann: Right. Right.
Mary McCord: But let’s assume it’s one of the two drug cartels recently, under this administration, designated as a foreign terrorist organization. Brief aside here that requires three things, right? An organization that’s foreign. An organization that commits acts of terrorism or has the capability and intent to commit acts of terrorism. And an organization that is a threat to U.S. nationals or U.S. national security. This administration, these are the first times we’ve seen these type of drug cartels designated this way. You know, there’s around 60 or so organizations on the list of designated foreign terrorist organizations. Almost overwhelmingly until recently most are Islamist extremist organizations like Al Qaeda, like ISIS, et cetera. So this was already extraordinary, but even assuming a legitimate —
Andrew Weissmann: Right.
Mary McCord: — designation, being a foreign terrorist organization or being a member of a foreign terrorist organization does not, under U.S. law, allow the government to kill you, full stop.
Andrew Weissmann: Full stop. And by the way, one thing I want to make sure people heard you talk about was that you said under U.S. law.
Mary McCord: That’s right.
Andrew Weissmann: There is U.S. law considerations, and because we’re lawyers and very nerdy, we think about U.S. law considerations, and that’s one body of law you have to worry about. But if we were back in government, we would worry about a second body of law, which is international law.
Mary McCord: That’s right.
Andrew Weissmann: So Mary, let me ask you what court made the decision to act here, and what congressional statute authorized what the president did here? Because I swear, I could remember from our days in government, that when people were dealing with a very difficult issue of various strikes in the Middle East, people were trying to decide whether a statute, that was the acronym was the AUMF, whether it applied, whether it gave congressional authority for the president to act.
Mary McCord: An AUMF, Authorization of the Use of Military Force, right?
Andrew Weissmann: Right. Exactly. So here, what court was involved here? And what congressional statute was involved here? And if the answer is none, what’s its best argument for what it’s doing under domestic law or international law to actually just kill people?
Mary McCord: So to answer your question, there’s no statute that I’m aware of that they’re even really attempting to rely on, nor can I point to any statute that would allow this. And certainly no court has ruled on it. Now that is a little less surprising because when the government makes a decision to do something like a strike, they don’t go seek court approval first. To enter into hostilities under the War Powers Resolution, they should be telling Congress about it. And there sure are some exceptions that allow in sort of an emergency situation, the president to order some sort of entering into hostilities and then report promptly under the War Powers Resolution.
But the administration has not been really clear what it has relied on. And it has talked about, as I was reading what it had said, right? In defense of U.S. national interests and in the collective self-defense of other nations. Now, assuming defense of U.S nationals, there is some, I assume the president would argue, some inherent constitutional authority as commander-in-chief to protect U.S. nationals. But it’s hard to see how a boat, even if we assume there are drugs in that boat, cartel members in that boat, or maybe there’s smuggling humans in that boat, hard to see how this has to be done in defense of the United States, when Secretary of State Marco Rubio has admitted that the Coast Guard could have interdicted that boat, intercepted that boat, boarded that boat, detained the people on that boat, removed any drugs or taken into custody any people being smuggled. And in fact, the Coast Guard has done that for decades. That is one of the things that it has the authority to do. So it’s hard to see how this could be in defense of the United States.
Andrew Weissmann: So we’re about to turn to the domestic side, but aren’t we normalizing killing? I mean, isn’t this without justification, and it reminds me so much of when we talked about the attack in Iran, by this administration, we still, to this day, there was a lot of discussion about, well, what was the effect of that? Did it really take out what we thought was taking out?
Mary McCord: Right.
Andrew Weissmann: But we still don’t have a good picture of what exactly was the precise intelligence beforehand. And that is the same issue here, because we don’t have judicial authorization, because we don’t have a congressional statute and we’re just having the president act unilaterally in a way that, as you said, Mary, appears by all accounts to be something that was unnecessary and uncalled for by what it appears to be.
We don’t have any of the data and this is, just a beat a dead horse, these are people who work for us. We do not work for them. And there is just no transparency at all about what is the level of intelligence. You could imagine a situation where it’s like, oh, we knew that there was a bomb on the board and there was an imminent threat, but if it’s drugs, there’s just so many other ways to deal with it. And that’s why a lot of people who I’ve been talking to are just like, why isn’t this just a flat out case of murder. We’ve been talking about domestic law, but my colleagues, who don’t know much more about international law, it is very hard to see what is going to justify this.
Mary McCord: That’s right. And you know, to your point on normalization, I mean, I think what the administration’s doing here, they’re talking about the drug scourge. And there’s no question that drug use, drug abuse, particularly with the fentanyl and the opioid crisis, has killed many, many Americans, right? But to kind of use that as sort of a justification, I think what they’re banking on is people will, as a policy matter, sort of support the idea of thwarting the drug trade into this country and there may be good reasons to do that. But to start saying, we can just kill people to thwart the drug trade when there’s no congressional authority for it, when there are other ways to actually interdict that boat or the next boat or the one after that, I mean, we are really on a slippery slope here.
And I think that’s why we have to keep being forceful. I think they’re wrong to bank on people saying, oh, it’s fine. It was a drug cartel. You know, we talked about this months and months ago, when the administration labeled all of the people it put on a plane to El Salvador as terrorists, without any finding that there even members of —
Andrew Weissmann: Exactly.
Mary McCord: — Tren de Aragua. It’s kind of like, I think hoping that people will not be alarmed because, oh, it’s terror.
Andrew Weissmann: They’re bad people, right. And this is where there’s such a political calculation versus a legal calculation. And what’s particularly upsetting is when you see the people in the Department of Justice, people who are steeped in following the law, take the political road out, which is, oh, we don’t have to comply with the law or due process because we don’t worry. We can just say Abrego Garcia is a terrorist. Nicolle Wallace always tells me irony is dead and hypocrisy is dead.
But I mean, do you think Donald Trump would understand this almost more than any president ever? Because he says I was accused of a crime, multiple crimes, but I’m not guilty. And that was something he had due process to deal with. He was a defendant saying, I’m not guilty. But under his theory, it’s like, you don’t get to say that. It’s like the government gets to decide that unilaterally. It’s like this is the Alice in Wonderland queen saying off with their head, trial to follow, except here it’s not even trial to follow.
Mary McCord: That’s right. And that is one of the other things. We still don’t even know who those people are. The recourse is very questionable here, yes. Could their families try to sue the United States? Yes, but there are all kinds of barriers to that. We don’t know what Venezuela’s going to do. And we haven’t even talked about the amassing of military equipment in the Caribbean right now. So we’re in a dangerous situation here and I’m sure that we will be revisiting this many more times.
Andrew Weissmann: Yeah. And this is, I think, really terrific segue to domestic use of the military and we’re going to go to what is happening in L.A. and what is happening in D.C., and the judicial decision the Supreme Court on L.A. and on a new lawsuit in D.C., your hometown, Mary. And I think this is one where there, the through line is clear, that the idea of normalization of the use of the military and the idea that they’re bad people somehow that justifies this. So let’s take a break and come back and we’ll talk about, I guess, first up we’ll talk about the Supreme Court decision.
Mary McCord: Or non-decision ruling. I don’t know. Yes.
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Andrew Weissmann: Welcome back. So, as Mary mentioned at the outset, there was a Supreme Court order decision. It’s hard to call it a decision.
Mary McCord: I guess it is decision because it decided something.
Andrew Weissmann: Yeah.
Mary McCord: It decided to —
Andrew Weissmann: Yes.
Mary McCord: — stay the lower court.
Andrew Weissmann: Yeah. So the Supreme Court, 6 to 3 on what’s been euphemistically called the shadow docket, has said that there’s going to be a stay of the L.A. lower court decision. It’s going to be important to focus on exactly what the lower court said, like what exactly was at issue. It becomes important. But essentially the lower courts, the district court and the Court of Appeals were staying certain practices that ICE could use in conducting stops in Los Angeles. And there’s no majority opinion. There’s simply the court announcing that there is this stay.
Justice Kavanaugh issued a fairly lengthy concurrence and then three justices, as you noted, disagreed and wrote a dissent. It was penned by Justice Sotomayor. I wanted maybe just tee this up to you, Mary, by first, making sure that people understand what exactly was ruled on by the lower court because I think it’s really important because this is a sort of technical issue. The court said that when you’re conducting stops, there are certain factors that you cannot solely use. I’m being very intentional with my wording. It didn’t say that you could not use those factors at all. It said that you couldn’t do a stop based solely on certain factors. So if you have additional factors, there was nothing that was being precluded. You could go forward. So that was the issue.
Mary McCord: Can I add one little explanatory footnote to that?
Andrew Weissmann: Sure.
Mary McCord: The basis for this decision was the Fourth Amendment.
Andrew Weissmann: Oh, yeah.
Mary McCord: It requires for an investigatory stop that there be reasonable articulable suspicion that the individual to be stopped in the case of criminal law has committed a crime. In the case of immigration status, is an undocumented person in the United States. So these factors you’re talking about are the factors that go into this determination under the Fourth Amendment if there’s reasonable articulable suspicion to make that brief investigatory stop. If you’re going to make an arrest —
Andrew Weissmann: Right. You need much more.
Mary McCord: You need probable cause.
Andrew Weissmann: Right.
Mary McCord: That’s right.
Andrew Weissmann: So, the Fourth Amendment, you just can’t stop people willy-nilly. You have to have something we’ve talked about, which is factual predication. And the challenge by the plaintiffs was they said that we are being stopped for impermissible reasons. And we’ve talked about lots and lots of examples they gave, but this is how the district court ruled and it was affirmed by the Ninth Circuit Court of Appeals over the L.A. district court. And here are the four factors that the court said you could not base a stop solely on these either individually or even collectively. Now, even if you had all four together —
Mary McCord: Right.
Andrew Weissmann: — they were impermissible grounds because the court saying these four alone or together do not constitute reasonable suspicion and they are, and I’m just going to read them out so you have exactly what was at issue and why Justice Sotomayor’s dissent is so vociferous, and in my view correctly, vociferous. One, their parent race or ethnicity. So that’s saying that’s not a factor that you would rise to the level of reasonable suspicion, whether the person spoke Spanish or English with an accent. Can I just say, Mary, who on God’s green earth would be thinking that would be sufficient? I will come back to this just for a nuance here. Three, the type of location at which they were found, such as a car wash or bus stop. And four, the type of job they appeared to work. And those were the four factors.
Mary McCord: In which just to say, were things like she indicated day laborers, those types of jobs.
Andrew Weissmann: Yeah. So post-9/11, there was litigation that related, in many ways, to the legal issue that was going on here where the government would say, oh, well we stopped this person and one of the factors was they’re Muslim, because people who attacked us were Muslim. And courts were like, that is a negligible fact. It’s not like because you have Italian ancestry you’re then in the mob. That is like taking millions and millions and millions and saying that somehow supports it. It’s not a factor that in any way provides factual predication that you need in order to do an investigative stop.
Mary McCord: And that’s one of the problems with this ruling, right? Now, I know you said 6 to 3, and I guess I’ll say the only thing we know for sure is it had to be at least five votes to stay it because the only person who wrote is Kavanaugh and the three quote, unquote liberals. So, we can say that that probably means it’s 6 to 3. There could have been somebody who voted against a stay but decided not to write.
Andrew Weissmann: Not to write and not to join the dissent, it’s true. But can I just say true but unlikely.
Mary McCord: I think you’re right, but just you know, as a technical —
Andrew Weissmann: Yeah, it’s true. You’re right.
Mary McCord: — because we’re lawyers.
Andrew Weissmann: Yeah.
Mary McCord: So what is sort of unfortunate though is then, I think all of us are kind of looking at Justice Kavanaugh’s concurrence as sort of channeling what maybe the majority thought. And I don’t know if this is exactly what the majority thought or not.
Andrew Weissmann: Right.
Mary McCord: And there are two reasons that he said he voted for a stay. The first you haven’t mentioned at all, which is, he said that these plaintiffs, these are people, mind you, including two U.S. citizens and organizations of workers who, these U.S. citizens had actually been stopped, they had actually been shaken down. One of them detained for more than 20 minutes, both saying I’m a citizen, I’m a citizen. One violently slammed up against a wall produced, eventually his real ID, right, which is proof of citizenship because it’s a real ID, and that’s the term used for it, where you’ve had to show your passport birth certificate, et cetera, to get that type of driver’s license. Showed all that. They took that from him and didn’t get it back.
These people, Justice Kavanaugh said, there’s no real likelihood this is going to happen to them again. So relying on a case called Lyons, where the court had held somebody who was challenging a police practice of choke holds, and who had been stopped in a traffic stop, taken out of the car, put on a choke hold. The Supreme Court said there’s very little likelihood that this is going to ever happen to you again, that you’d be stopped in a traffic stop, you’d be put in a choke hold, so you don’t have standing. But here, we’re talking about, right, raids, hundreds of people that had been stopped. And based on these four factors that you just revealed, and there’s a high likelihood it’ll happen again.
Andrew Weissmann: In fact, the Department of Homeland Security, the head of it had said, we’re going to do exactly the same thing going forward, where sort of ignoring all of this. So there was that idea that there shouldn’t be an injunction because there wasn’t some likelihood this would have repetition, seemed just a fanciful argument. But because there’s no actual written decision from the majority, we don’t know if that’s the basis for why five or six of the justices ruled this way.
I should note that, Mary, what you’re saying about, can you get an injunction because you have this reasonable fear and there’s a likelihood that this would happen again. That’s about the injunction. You still could have a potential claim for damages.
Mary McCord: Right, for injuries for excessive force.
Andrew Weissmann: Exactly. Justice Kavanaugh says that. I’m just dealing with an injunction. Can I just add one comment about something that you said, because I just want to make sure people know how Justice Kavanaugh described the practice that’s going on here, because you recounted one of the stories of one of the people and there are many, many, many stories? There’s a factual record found by the district judge, and Justice Kavanaugh basically just throws that out and makes up his own facts in many ways.
Remember what Mary just said about the person actually can prove that they shouldn’t have been stopped. They can prove that they are allowed to be released, but there are many, many instances they’re surrounded, they’re like gunpoint, they’re tackled. People have masks on. They’re physically held. They’re removed to other places. You mentioned that it took 20 minutes with this happening.
Mary McCord: For one of the people, yes, that’s right.
Andrew Weissmann: This is how Justice Kavanaugh describes what is happening to black and brown people being stopped in L.A. If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go. That’s his quote. That is not the factual record. This is my question to Justice Kavanaugh. How would you like to be in that situation? You are a white privileged male and it’s not going to happen to you. How would you like to be stopped under these circumstances? And would you use the word promptly to describe what was happening to you?
I mean, my jaw was on the ground when I saw that. I have no problem having a disagreement on the law, but there were factual findings by the district judge. The Supreme Court, just so people know, is not supposed to be reviewing factual findings unless there’s just no support.
Mary McCord: Clearly erroneous.
Andrew Weissmann: Exactly.
Mary McCord: Yeah.
Andrew Weissmann: And they didn’t say that. They didn’t say that the district judge was clearly erroneous. So it really belies the factual record. And it was such a callousness in terms of describing it that way.
Mary McCord: And that is what led the dissent to say, we should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish and appears to work at a low-wage job. And then the dissent goes on to recount some of these stories, including of the two U.S. citizens, right, who were really violently detained until they could submit adequate proof of their citizenship. But the second piece of this that you had been talking about, with respect to the four factors, this is where we now have a legal disagreement in addition to this factual disagreement, right?
Justice Kavanaugh seems to think these four factors are just plain common sense. So he says reasonable suspicion is lesser than probable cause. Yes, I agree with you.
Andrew Weissmann: True.
Mary McCord: So here he says, under the totality of the circumstances, the circumstances here include that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area. That those individuals tend to gather in certain locations to seek daily work. That those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction that do not require paperwork and are therefore especially attractive to illegal immigrants. And that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.
He says under this court’s precedence not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States. Now, I don’t know what is individualized by that at all and that is one of the dissent’s complaints. So like, we’ve said before, in other cases, you can’t take something like Mexican descent and say, oh, you look like you’re of Mexican descent. Therefore, I have reasonable suspicion that you are here unlawfully.
And we’ve said before, says the dissent, you can’t use circumstances that apply to a large group of people, right? Because there is a large group of people in Los Angeles who might meet every one of those four factors and be United States citizens, such as the two examples that we just talked about, that the dissent emphasizes, both U.S. citizens. And that’s because, again, the Fourth Amendment requires individualized suspicion. It can’t be, we get to go to a parking lot where day laborers are picked up and anyone who looks like they might be Latino, oh, I can hear them speaking Spanish, I get to grab them. That can’t be the law. And that’s what caused the dissent to say, this is just not the country that we should live in.
Andrew Weissmann: This is yet another Supreme Court decision where there’s no explanation. And the dissent calls that out to say, what are the lower courts supposed to do with this? Let alone us on this podcast. But to be serious, we do not know whether the decided this case because in balancing equities, they think that it hadn’t been established sufficiently by the plaintiffs. They don’t know whether it’s a question of standing this issue of the likelihood of repetition. They don’t know if it’s whether they agree with Justice Kavanaugh. And the idea that something this major and this important, and that has such huge ramifications for how law enforcement is going to interact with the populace is not being explained and there’s not clear guidance here for what is allowed and not allowed.
Mary McCord: Especially now, right, with the expanded raids that are promised across other cities of the United States.
Andrew Weissmann: Exactly. So there’s no guidance, there’s no limits. And that’s where as much as I disagree with Justice Kavanaugh, at least he put pen to paper to —
Mary McCord: That’s right.
Andrew Weissmann: — explain his view.
Mary McCord: That’s right.
Andrew Weissmann: At least there, there are some reasoning, where the other five do not explain what they’re doing, that is such a green light in terms of the government’s theory. It is just, I think, inexcusable for the court not to at least articulate. And you know where we’re seeing that? The same thing when you have the executive branch not articulating what was its intelligence, what’s its legal theory for killing somebody in a boat. What is its legal theory for bombing a foreign country? This idea that it’s like might mix right and we have the power and we don’t have to explain ourselves has deadly consequences and real life implications. And that’s why the dissent is vociferous on this. And it’s not just a question of the district courts have to guess.
And then you have Justice Gorsuch and Justice Kavanaugh chastising lower courts saying you’re not following our rulings. And the lower courts are going, where? What are we supposed to do? It’s like Johnny Carson when he plays Carnac and he goes —
Mary McCord: Yeah.
Andrew Weissmann: — what’s in this letter that he holds up on his forehead. It’s like, if you don’t tell them what your reasoning is, don’t yell at them.
Mary McCord: Yeah.
Andrew Weissmann: Okay. Mary, moving to D.C., what’s happening in your hometown?
Mary McCord: One of the issues with the use of the National Guard is will they be deputized to actually enforce immigration law? Bad enough that we have ICE agents engaging in the type of tactics that we saw out in Los Angeles, but if we end up having the National Guard supporting this but even going potentially beyond supporting this to actually engaging in law enforcement, and if they’re deputized for immigration enforcement, you could see how dangerous this decision really is.
And in D.C., right now we have the D.C. National Guard that has been mobilized. They have been told that they can engage in domestic law enforcement. We also have the National Guards, from seven other states, who have sent members to the District of Columbia. They are all jointly operating under federal command and control, yet have not technically been federalized under Title 10. Remember when we talk about what happened in Los Angeles, that was actually the federalization of the California National Guard. That means they are under the authority of the U.S. Armed Services and that’s why we ended up with the case challenging whether they had violated the Posse Comitatus Act because U.S. Armed Forces and federalized National Guard operating in Title 10 status are prohibited by law from engaging in domestic law enforcement.
In D.C., they did not federalize under Title 10. They claim these other National Guards are there under Title 32, meaning they are still reporting to their own governors and they are not subject to Posse Comitatus. They also claim that D.C., even though there’s no governor, is essentially also acting in similar analogous Title 32 status. Question that I’d love to come back to, legal nerdy question. Can you even have that in D.C. when there’s no governor and when the DC National Guard always reports to the federal Armed Forces?
Andrew Weissmann: Yeah.
Mary McCord: To me, that means they’re always in Title 10, but let’s footnote that from now. The other forces are supposedly here under Title 32, but they are operating now under the joint command of U.S. Armed Forces, which means looks to me like they’ve either been federalized or those commanders are violating Posse Comitatus Act. And that is some of the basis for the District of Columbia attorney general bringing his lawsuit. He makes three real arguments.
The first is really about home rule, which is that the president deployed National Guard troops, for law enforcement, without the consent of the mayor. We know he can deploy the National Guard without the consent of the mayor because the mayor doesn’t have any responsibility over the National Guard. The argument here is that when they’re for law enforcement, instead of for military functions, then law enforcement is uniquely, by the Home Rule Act, the province of the District of Columbia government and the mayor, and she did not ask for this. It’s over her objection, and also violates something called the Emergency Management Assistance Compact or EMAC, which is an agreement between all the states and the District of Columbia that when they need some help with law enforcement, they can ask another state to send in law enforcement. And they’re saying she didn’t ask for any help. It was wrong to do this. So that’s one category of claims.
The others have to do with what I was just talking about, which is that by the U.S. Armed Forces taking command and control of the National Guard, when they’re supposed to be in Title 32 status under the command of their governors, that’s in violation of law. And that, finally, the Posse Comitatus Act was violated because the U.S. Marshals have then now deputized the National Guard to be deputy U.S. Marshals engaged in law enforcement. And since they’re under the command and control of the Armed Forces, that violates Posse Comitatus Act. That’s the gist of it.
Andrew Weissmann: I was going to ask you, I mean, this is a pretty technical thing. And as we’ve talked about D.C. has very unique issues because it’s not a state. I was reading that the United States Marshall Service, which is a federal service, had deputized the National Guard troops. I don’t think all of them, but a lot of them. So I have a couple questions. When people read like the Marshall Services deputized National Guard troops, A, what does that mean? And B, why would they do that? What is the extra authority they think they’re getting? And I guess I have a third question because I only ask compound questions, which is, was that kind of a mistake and others did that lead to the D.C. attorney general being able to bring a claim because that might have violated the law?
Mary McCord: A couple of things in response to that. The U.S. Marshals can only deputize for National Guard members to enforce federal law. So they certainly can’t deputize for them to enforce D.C. code, unless there’s been a separate sort of deputization of U.S. Marshals to enforce D.C. code and that flows there from, and I don’t really know exactly. I think it’s federal law that they’re talking about, and this is even a bigger issue in other states where federal law enforcement can only deputize people to enforce federal law. It would take a state for example, to deputize National Guard to enforce state law, unless under their own state code they already have that authority. So, this is a hyper-technical point and I could be wrong about a few nuances about what’s been delegated or deputized already to U.S. Marshals because they certainly do go out and do fugitive arrests and things like that, including four violations of D.C. code law.
But one of the things we know about the president’s executive orders related to this is that he’s also directing other federal law enforcement to deputize National Guard. And that would include DHS, which has that immigration authority. So there’s more to come on this, but to your final question about, was that a mistake. That certainly is the basis for one of the D.C. attorney general’s claims, right? By doing that dation to engage in law enforcement, that is a violation of Posse Comitatus Act because the National Guards are under the authority of the U.S. Armed Services and not in their sort of state Title 32 status.
And some of this is unique to D.C, but we know Judge Breyer’s opinion in L.A. last week and what’s threatened in other states and cities like Chicago and Baltimore and Portland and New Orleans.
Andrew Weissmann: And New York.
Mary McCord: And New York, right. We’ll see if that happens, number one, that the military or National Guard gets deployed. What authorities are used? Is it going to be Title 10 federalizing the National Guard? Is it going to be Title 32? And then from that we’ll know what kind of litigation might be brought.
Andrew Weissmann: Big picture, this idea of normalization, which we’ve really been talking about, stepping back from the legal, you have this idea that as a policy matter, even if you could get through all the legality issues, the idea that as a policy matter, you’re having the U.S. military function domestically based on, in my view, a ruse is so incredibly dangerous in terms of authoritarianism. There’s crime everywhere. That just cannot be the trigger for that policy decision. Yeah.
Mary McCord: So much more to come on this. Why don’t we take a break and come back and we will talk about the Harvard decision. So we will switch gears pretty dramatically, but it was a very significant decision.
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Andrew Weissmann: Mary let’s turn to the Harvard case. Big, big win for Harvard. Obviously, it’s a district court decision. So we’ll see what happens on appeal, if it goes to Supreme Court. There are lots and lots of avenues that people have flagged that are still open to the government to do things, but let’s just take it on its terms, in terms of what happened here. Allison Burroughs, the United States district judge, ruled in Harvard’s favor. And what did she find? I know both of us have flagged and probably up on our screen a certain footnote.
Mary McCord: That’s right. This was all about the termination of billions of dollars of grant funding to Harvard because Harvard refused to completely capitulate to coercive demands made by the government about what it needed to do on campus and to basically conform the campus culture to the preferred viewpoint of the United States government. It all came down to the U.S. government arguing that Harvard had not done enough to combat anti-Semitism on campus. Harvard has many, many times explained all the things that it has done. It has not been perfect over the last few years, but it has taken a bunch of measures to address that.
And because Harvard refused to allow its curriculums to be audited and its faculty to be supervised and approved by the federal government and other coercive measures, the grants were terminated, and that’s essentially what the judge ended up finding. She found that there was First Amendment retaliation in the termination of these grants, that there was violation of Title 6 of the U.S. code that prohibits discrimination on campus, but the procedures were not followed. And she found that it was also an arbitrary and capricious decision to terminate these grants because Harvard, in fact, was doing lots of things to remediate and the government really didn’t look at those things at all.
There are other issues there, but I want the people to know what kind of grants we’re talking about here. So here’s just a bit of a description. Projects on breast cancer detection and prevention, biological threats, overcoming antibiotic resistance, improving neurologic outcomes for pediatric cancer survivors, developing drugs to treat long term radiation exposure and for chemotherapy, studying the effects of particulate matter exposure on military veterans, and creating technologies that provide energy relevant minerals for economic and national security. I could go on about the specific descriptions of some of this work being done, which is really at the top of our scientific research and medical research, critical kinds of things that we don’t have anyone to replace.
Andrew Weissmann: What you have here is, once again, an example of lawlessness, because it’s a violation according to this district judge of the First Amendment. Very similar to the rulings on the executive orders against law firms that were all struck down on the First Amendment, then this is now joining many other courts. And, to your point, this is something that Judge Burroughs pointed out cruelty. To exact this kind of retribution, which she called it, using the ruse, which she also labeled it, of anti-Semitism, of combating anti-Semitism, which she said as a fig leaf.
And what you’re using is holding up really important research. Do you know what that sounds like? Do you remember the first impeachment, we’re going to withhold Ukraine aid until I can get Ukraine to declare that they are conducting an investigation into Joe Biden? Just declare it. They don’t have to do it. They just need to say they’re doing it. Again, that idea that there’s no bottom to what you would do here and the mechanism. And so, that was what the court said, you cannot do. Can I be an egghead for a moment and compare this to something? A Supreme Court case that it was decided under the Biden administration that went up in Texas to the Fifth Circuit and then up to the Supreme Court and the challenge by what I’m going to describe as sort of MAGA acolytes.
They challenged the practice of the Biden administration, the White House and various agencies, trying to suppress speech because they’re trying to have social media companies take down disinformation about the efficacy of vaccines. I mean, you can understand why as a policy matter, the CDC and the White House would be like, I’d like you to take this down. And going up to the Supreme Court, the district judge and the Fifth Circuit both were saying, this is the greatest violation of the First Amendment ever. The government has no business weighing in on this whatsoever. And there was this sort of Damocles, sort of vague in the background as to what they might do if you don’t comply.
Well, it went up to the Supreme Court, and the Supreme Court said, we just don’t see the factual basis for this claim. There was no sort of, if you do this, we will do that. The government wasn’t saying we’d like you to do this, and if you don’t, we’re going to take away your license. We’re going to criminally prosecute you. Their defense was, basically, there is a bridge too far we could go, but we didn’t cross that because we did retaliate or say we were going to retaliate.
Now let’s compare what these MAGA acolytes were saying was just so anathema to them because we’re the First Amendment and we care about the First Amendment. The shoe is now on the other foot where the administration isn’t just threatening to retaliate. According to the district, judge, it retaliated up one side and down the other and is pulling existing funds. And here’s where Harvard could really still get hurt, is not get new funds for new research that could be in the same category. Mary, I mean, Harvard is the shining example and talk about cutting off your nose despite your face. America was and should be at the forefront of the scientific community. And this is an area you want to be investing in. The idea that this is what you retaliate with, is to pull this kind of funding. Not to use hyperbole, but this is what saves lives.
Mary McCord: That’s right. And we could say this about lots of other things too, like tariffs, for example, economically struggling businesses now because of that. And to your point, just then the district court made a real point of saying government, when you’re telling us you were doing all these things because of your concerns about anti-Semitism, you were so obvious about your retaliation. And she goes through a number of pages, quoting things that the president and others said that made it clear. This was about retaliation, right? Maybe we should take away their nonprofit tax status, all of these types of things. So the problem is when they try to make a legal argument, that is just belied by the facts, that catches up with them.
Andrew Weissmann: It was Justice Amy Coney Barrett who wrote the Murthy majority decision.
Mary McCord: That’s right.
Andrew Weissmann: And it’s exactly what she said was missing in the record —
Mary McCord: Right.
Andrew Weissmann: — which was not there. Mary, should we talk about the footnote?
Mary McCord: Yes. And there’s —
Andrew Weissmann: Yes.
Mary McCord: — a little bit of a legal lead up to this because one aspect of the claims that had to do with terminating these grants was something the government said, this case should all have to go to the Federal Court of Claims. And recently the Supreme Court has held, with respect to NIH grants, that individual grantees who were arguing about the termination of their grants needed to take those cases to the Federal Court of Claims. And then the argument about the new guidance about grant making, they could challenge that in a federal district court. So we had justices disagreeing about this all across the board. Justice Barrett coming in the middle saying we’ll bifurcate this and they can take their money claims to the Court of Federal Claims, they’re challenged to the guidance to the district court and you’ll need to do one before the other totally impractical results, overly legalistic.
And this is the case, as well, where Justice Gorsuch, in a separate opinion, excoriated lower court judges for not following the Supreme Court’s rulings in emergency cases. So this judge says, well, what am I going to do with this now? I’ve got the government saying these should all go to the Federal Court of Claims. I’ve got this opinion out of the Supreme Court that sort of splits the baby, but that’s only because eight justices couldn’t agree so one judge kind of, in the middle, issued this ruling. What I’m going to say is that the termination of grants under the Administrative Procedure Act would need to go to the Court of Federal Claims. Whereas the guidance memos that talk about how the grants should be made, those could go to regular court, but none of this matters here because the First Amendment retaliation claims and the Title 6 claims can be ruled on by this court. That’s why she’s, ultimately, vacates the termination letters that terminated the grants.
Okay. You’re like, Mary, gosh, why all that? Well, that’s what drove the footnote. Footnote nine pages 27 and 28. The judge writes, the court is mindful of Justice Gorsuch’s comments in his opinion, in what is the NIH case, and fully agrees that this court is not free to, quote, “defy: unquote, Supreme Court decisions and is in fact, quote, “duty bound to respect the hierarchy of the federal court system.” That’s her quoting Justice Gorsuch. That said, the Supreme Court’s recent emergency docket rulings regarding grant terminations have not been models of clarity and have left many issues unresolved.
She goes on to talk a little bit about what those issues are. Then she says this court understands, of course, that the Supreme Court, like the district courts is trying to resolve these issues quickly often on an emergency basis and that the issues are complex and evolving. Given this, however, the court respectfully submits that is unhelpful and unnecessary to criticize district courts for defying the Supreme Court. When they’re working to find the right answer in a rapidly evolving doctrinal landscape and where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.
Andrew Weissmann: Amen. Chef’s kiss. I mean, she’s basically like what on God’s green earth are you doing? You don’t even explain yourself and then you’re yelling at us? This all, by the way, is going to be really nerdy, but the Justice Kavanaugh and Justice Gorsuch chastisement comes from a Harvard professor named Vermeule, who has been saying, oh, the district judges are doing whatever they want and they’re out on a limb and they’re not following the Supreme Court. Setting up this split between the Supreme Court and a lower courts. Something by the way, Mary, you saw in the CASA case where that was very much a ruling —
Mary McCord: Right.
Andrew Weissmann: — which is we get to issue the sort of uniform injunctions when we want to but nobody else can. And this idea that you really can’t trust the lower courts. And that fuel on the fire has been aided by this Harvard professor. I just think that what’s missing from that is that these are district judges that are operating in good faith who are trying to understand what the law is and a disagreement on what the law is, is not disregarding the law at all. They may be right. They may be wrong. Mary —
Mary McCord: I have to get to my day job.
Andrew Weissmann: I do too.
Mary McCord: You do too. Okay. We could keep talking all day, but we can’t.
Andrew Weissmann: We cannot. And so we will be back next week. Once again, thanks everybody for listening and staying engaged. Remember, you can subscribe to MSNBC Premium on Apple Podcasts and you can get this show there and other MSNBC originals ad free and you’ll get subscriber only bonus content.
Mary McCord: This podcast is produced by Vicki Vergolina and Frannie Kelley. Our associate producers are Iggy Monda and Ranna Shahbazi. And our intern is Colette Holcomb. Bob Mallory is our audio engineer and Bryson Barnes is the head of audio production. Aisha Turner is the executive producer for MSNBC Audio.
Andrew Weissmann: Search for “Main Justice” wherever you get your podcast and follow the series.