On Friday, Aaron Reichlin-Melnick — senior fellow at the American Immigration Council and one of the people I’ve turned to often over the past 14 months (and long before then) — joined Law Dork to talk about a very busy week in immigration news.
From developments coming out of litigation over the Trump administration’s extreme immigration enforcement efforts to upcoming U.S. Supreme Court arguments, Reichlin-Melnick provided keen insights into what’s going on and what’s ahead of us.
Watch the video above or read the lightly edited transcript below.
And, thanks to all who tuned in to the live video discussion!
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LAW DORK: Immigration in the Trump era. I just am really glad to have this chance. Aaron and I have been constantly talking with each other on the internet over the past year, and I really rely constantly on his work. He’s a senior fellow at the Immigration Council, and I think anybody who’s active on social media and cares about immigration issues has been familiar with and is following his work. And it seems like a great time to actually spend a half hour talking with you about where things are at, where you see things at right now, and where you think they’re going. So, first of all, just thanks for for making time for this and for joining to share your expertise with me and everybody who’s joining the chat.
AARON REICHLIN-MELNICK: Thanks for having me, of course. I would say that the feeling is mutual. I really appreciated all the work that you have been doing in digging deep into these cases. There are simply too many of them going on on an everyday basis for me to track everything and also pay attention to all the regulatory actions and the policy actions and everything going on under this administration in the world of immigration. So it’s a pleasure to get the chance to chat with you about what’s happening this week alone, or in the last couple of weeks, because it is a constant — there’s no such thing as a quiet immigration week in the Trump administration. There’s maybe been two of them, maybe three, over the last year and a bit. Basically, there’s always something to talk about.
LAW DORK: Yeah, and, for better or worse, both of us know doing this chat on a Friday afternoon inevitably means that we’ll later be scanning some appellate ruling at 7pm.
REICHLIN-MELNICK: The curse of immigration Fridays.
LAW DORK: For now, I wanted to start with what feels like was the surprise of the week there. There’s a lot of stuff that we knew was going on, but something that I know you’ve been been looking at deeply is this case out of the Southern District of New York and the Department of Justice announcing just in a two-page letter one morning that everything they’d been arguing in this case about the way that immigration enforcement is happening in and around immigration courts was not what the Department of Justice had been saying was happening, in its briefs and in arguments. Can and you set us, like the the background of of what’s going on there and what we learned on on Tuesday?
REICHLIN-MELNICK: So, this came in a case that the involved the policy of the Trump administration that began in about early June of last year, where ICE started going to immigration courts and arresting people, either at the end of their hearings after ICE would ask the judges to abruptly dismiss their cases, or really just after any hearing was complete, even if their cases were ongoing. This was because arresting people, or what I call them, rearresting people who are appearing at court hearings and ICE check-ins is — from the agency’s perspective — it’s the low-hanging fruit. If you want to get arrest numbers up, go to where you know people are going to be, and that’s at the immigration courts and at ICE check-ins. This policy has been chaotic. It led to sobbing family members arrested in the hallways of courts, multiple scandalous instances, Brad Lander being briefly detained and arrested following an incident there. You had a photographer, reporter being shoved by an ICE officer to the ground, which led to one of the only instances that I’m ever aware of where DHS said this ICE officer maybe went too far. And then, of course, two weeks later, he was back on the job. And so a couple of groups in New York sued and tried to enjoin it. And when that happened, what ICE said is, they pointed to a policy memo that had been put out last year that had rescinded a 2021 guidance on sensitive locations — immigration enforcement in sensitive locations, including courts. And in 2021, the guidance said this applies to immigration courts. And in January of 2025 that guidance was rescinded. There were some interim things in the first days of the Trump admin saying we’re just putting some new sensitive locations policies in effect. And then in the summer 2025 a new memo came out saying, ‘Here’s the final guidance, not just the things we did in the first days of taking office.’ And crucially, that guidance was missing a line that had been in the 2021 one, which said this applies to immigration courts. But everybody agreed, and as the lawsuit went on, that that was the guidance that was covering how ICE was doing immigration enforcement at immigration courthouses. And the Department of Justice said that to the judge, the judge argued it, the plaintiffs actually lost in their initial stage, not entirely, they had some victories, but they lost on the basic effort to stop this, with the judge citing that guidance as one of the reasons, saying, here we have this falls within it. You know, ‘They’re making considerations of the whether or not these arrests make sense,’ and all of that —
LAW DORK: It differed from a lot of the other policies, where they have been held back or stayed or whatever by district court judges, because there was no evidence of any consideration, that it was just changes that were implemented, whereas this they literally were pointing to this memo as an example of like ‘this was a reasoned decision.’
REICHLIN-MELNICK: Yep, especially because that memo was the sort of the second policy. They’d done an interim policy right after taking office, and that’s a very common way [when] new administrations come into office. On day one or the first week, you have some interim policy, and then you say, ‘Okay, well, this is the short term and we’re developing a long term policy.’ And they developed the long term policy, and that was this guidance. And that’s how the case had been going on. And I fully admit I kind of, after that, I stopped covering it. It seemed like, unfortunately, the plaintiffs had lost and courthouse arrests were not going to end because of this.
LAW DORK: The ruling was back in September.
REICHLIN-MELNICK: So it’s been about six months since anything major happened in the case, and then all of a sudden, you get the Department of Justice coming to the judge in a letter saying, ‘Actually, ICE just told us, for the first time ever, that the June 2025, memo, the one that everybody has said is what governs these situations, it doesn’t. And in fact, it never has. And ICE is telling us every time that we told you, judge, that that’s the governing policy, it didn’t.”
LAW DORK: It was an astounding letter. It pointed to like, five different items on the docket where they had made this representation. This wasn’t like anything that we’ve heard in other cases where there’s one statement that a DOJ lawyer made in the midst of arguments before a judge. This was like, ‘We need to change our position based on representations we made in multiple written documents signed by lawyers, argued to the court.’ And they even listed the judge’s opinion as something that might be up in the air.
REICHLIN-MELNICK: Yeah, and this came as clearly a surprise to everybody, and I would note clearly a surprise to the DOJ lawyers themselves, and they pointed to a guidance email that had gone out a few days earlier, about a week ago, from ICE saying, ‘Just as a general reminder, the June 2025 guidance does not apply to immigration courts.’ And clearly they got a copy of that and went to their agency lawyers. For those who are not familiar, the way actual DOJ litigation works, you’ve got — the DOJ is the defense lawyer for the government here, and they then go to the agency, they talk to the agency’s lawyers, and a lot of the time, how they get information about what’s going on inside an agency is through the agency lawyers who act as a conduit. And you have this incredibly unusual situation where, in the letter, they basically throw ICE’s lawyers under the bus and say, ICE’s lawyers are the ones who told us this, and they repeatedly told us this, and it’s not on us, judge. You’re going to want to go after the ICE attorneys because they’re the ones who were telling us over and over and over again that this was the applicable standards.
LAW DORK: And I would note that this was not — there is in the lawyer world something that people outside might not know — there is a distinction that this was the Southern District of New York U.S. Attorney’s Office that is defending the case, which is the US Attorney’s Office. It’s Jake Clayton. It was not being run by Main Justice. It wasn’t these cases, the names that you’ve gotten to know over the past year as the the the lawyers who are the administration people in Washington, DC. This wasn’t those people who have been on all of these clearly partisan, ideological-bent cases being run like basically right out of Pam Bondi’s office.
REICHLIN-MELNICK: And S.D.N.Y. has a very well-deserved reputation for the professionalism of their lawyers, and traditionally had a reputation for significant independence even from Main Justice in Washington, DC. And, that said, this was not a high-profile case. As noted, the government, they didn’t completely win at the early stage, but they sort of beat back the the efforts to eliminate courthouse arrests in New York in the initial stages of the lawsuit. And so this wasn’t something that was, you know, going up to the White House here. And so it’s not clear what the impact of any of this is going to be. I think that’s another question.
LAW DORK: Yeah, what happens now?
REICHLIN-MELNICK: So I think that’s the big open question, and I don’t know the answer to this. The judge has called a hearing for Monday, I believe, and DOJ said in their letter, we don’t think this undermines our general position that courthouse arrests are legal. And then later that day, ICE released a statement to CBS News through their immigration reporter Camilla Montoya Galvez, saying no policies have been changed. Immigration courthouse arrests are still lawful. They lied a little bit in the statement. They claimed they’d only been targeting, they suggested, not directly claimed, that they’d only been targeting people whose cases had concluded. That’s not true. Plenty of people have been arrested who had ongoing cases. But they basically suggested nothing’s going to change. And so the real open question is, what does the judge do? Does the judge now say this is an absolute scandal, drag ICE counsel in front of the court, change his mind, suddenly say, ‘No, now I think I am going to do something about courthouse arrests,’ or is this more a professional responsibility scandal that really leads to some lawyer sanctions but no real impact on ICE. And I think that’s the big open question out of all of this.
LAW DORK: Do you think there is an argument that this changes the case?
REICHLIN-MELNICK: I mean, it’s really, really hard to say, because if you then unwind everything and look back and say, ‘What is actually happening here?’ Well, that means you go back to that interim early January 2025 guidance, which got rid of the 2021 guidance. And now you look and say, ‘So what, in fact, governs ICE arrests at courthouses?’ And I guess the suggestion might be nothing. There is no formal policy, in which case ICE is just going to say, ‘Well, there’s nothing stopping us. We just have authority to do it. It’s a public space. We’re allowed to be in there as well. We can make arrests in a federal building. There’s nothing stopping us.’ And then maybe the plaintiffs have to amend their lawsuit and challenge the interim policy, rather than the June 2025 policy. And so maybe this means they get another crack at it. But certainly we’ve seen no indication that they take this to mean that they can’t do immigration courthouse arrests, and they’ve explicitly said no policies have changed.
LAW DORK: Outside of that, one of the biggest issues that there’s been the most developments on this week, and that’s clearly had a huge effect, not only on people, but also on courts, is this mandatory detention policy that the Trump administration decided that it found a provision in federal law that should be interpreted differently than everybody for the past 30 years has interpreted it, including the first Trump administration, to essentially require the mandatory detention of anybody who does not have legal status in the country. This is a situation where a lot of the early coverage about this was the fact that — it came out of, I think it was initially a another Southern District of New York judge who put a list together of all of the cases that had considered this issue of the Trump administration’s new interpretation, and that — essentially it was, like 100 decisions in one direction against the Trump administration, and like 15 against or something. And that has continued, and I know Kyle Cheney at Politico has done an incredible job of trying to track all of these cases, and they have a running list. And, as has happened in a number of legal developments over the past years, things have changed once they got to the appeals courts, and at this point, both the Fifth Circuit and, this week, the Eighth Circuit have issued 2-1 rulings siding with the Trump administration. Why is this a big deal? What is the Trump administration trying to do that makes this such a big deal?
REICHLIN-MELNICK: Yeah, so it’s a big deal because it’s about this basic question of: Can people arrested by ICE inside the country ever be released from detention and go about their immigration court cases while living their normal lives in the way that somebody can be released on bail while facing criminal trial? And for 100 years, really the history of immigration law, virtually everybody who was taken into custody for interior enforcement, people who are already inside the United States, not migrants stopped at the border, who were facing removal, have been eligible to be released on bond. Now, in 1996 Congress started making some changes to that. In 1996, Congress put in place a couple of major restrictions on that. The first one was for people with certain criminal records, where Congress said, ‘If you have a specific criminal record, you are subject to mandatory detention,’ and the grounds for what counts you under mandatory detention have expanded a little bit over the years, most famously, recently in the Laken Riley Act was actually an expansion of those specific grounds of mandatory detention. And then the other big category was migrants who were ‘seeking admission’ to the United States — the exact phrase in the statute. And these people, essentially this was interpreted in for years, and this is how the Supreme Court has even noted this in dicta: You’ve got people in the interior and people at the border, and the people in the interior are generally eligible for bond unless they have criminal records, specific criminal records, and people at the border are generally not eligible for bond and can be detained for as long as the government wants. Constitutionally, there are some limits that the courts still have not fully worked out, but if you enter at the border and you’re apprehended within 24 hours of arrival or you go to a port of entry and they don’t really want to let you in immediately, you’re subject to mandatory detention. So what the Trump administration has done is they’ve said, ‘Actually, we’re finding some weird quirk in that 1996 law that no one noticed until now,’ and saying, ‘If anyone ever entered the border, entered the United States across the border unlawfully — ‘entering without inspection’ is the legal term — they are categorically ineligible for bond.’ Even if they have no criminal record, even if they have been here for 30 years, even if they’ve been here for 50 years, it does not matter, they cannot ever go to a judge and say, ‘judge, please release me.’ They cannot ever say, ‘I’m not a flight risk. I’m not a danger of the community. Why are you holding me in detention?’ The government must detain them for the entirety of their immigration court proceedings, and that is a radical change that will impact potentially millions of people who could get caught up in immigration enforcement, because detention is the number one factor in people losing their case, arguably, or one of the most important factors in determining who wins and who loses is whether you’re detained, because it’s just harder to win a case from detention for a wide variety of reasons.
LAW DORK: There were all of these cases at the district court level. Most notably, this came up a ton in Operation Metro Surge. And this was a lot of the cases that the chief judge, when Judge Schiltz issued his calling to account of the Trump administration and the US Attorney’s Office for violating court orders. Almost all of them had something to do with these cases and whether people were being released in accordance with what the court order in a habeas case raising this issue they were ordered to release, or it turned out there were a number of cases in which part of that order was to return their identification documents with them when they were released, and apparently, in the course of trying to quickly arrest people, they were also losing paperwork. And then third, the issue of quickly trying to send people to Texas and Louisiana, and then not necessarily bringing them back to Minnesota at first, until that was added into a condition of these orders. All of those cases are, potentially, moving forward — although now Operation Metro Surge has been officially closed, although there’s ongoing enforcement — could be affected by a ruling earlier this week from the Eighth Circuit. The Eighth Circuit, for people who don’t know, is, even though all of the attention is on the Fifth Circuit as the world’s most conservative court, the Eighth Circuit has literally only one Democratic appointee on the court. And so when one of these cases was appealed, actually multiple cases, but when these cases got to the Eighth Circuit, they were before a three-judge panel that included two Trump appointees and one George W. Bush appointee and Judge Bobby Shepherd, the George W. Bush appointee, wrote the decision saying, ‘Yeah, what the Trump administration found in the law about that “seeking admission” language that you discussed is is right,’ and it echoed an opinion another 2-1 decision from the Fifth Circuit from early February in which — and tell me if you think this is an accurate characterization — they essentially are arguing that no one has decided to use the full scope of the authority under this law, and that all of the applications of these 1996 laws since then, despite significant anti-immigrant moments, despite harsh enforcement policies that all of those implementations of that law were not the full scope of the authority of the administration, and the second Trump administration has just decided to use the full scope of their authority.
REICHLIN-MELNICK: Yeah, it’s that. And you know, in law, there’s always situations where Congress passes a law, you get the initial interpretation, everybody goes along with it, and nobody rocks the boat, and then maybe 20 years later, somebody says, ‘Hey, I think you got that wrong right at the beginning,’ and sometimes courts say, ‘Yeah, that’s correct.’ And so it’s not like that’s never happened before. One very infamous example where it worked against the government was this issue of notices to appear. There’s a case called Pereira v. Sessions, where, essentially, the same 1996 law said that Congress said that essentially not ICE, then it was INS. ICE didn’t exist at the time. But when an immigration court removal case is started, you get essentially a charging document called a notice to appear, and the notice to appear, according to the law, must contain the date and time of the proceeding. And for about 20 years, the government basically said, ‘That’s too difficult. We’re just going to write TBD on that.’ And what the Supreme Court eventually said was, ‘No, that’s not sufficient.’ You know, there’s a there’s a separate law that says you’re eligible for relief if you manage to stay in the country for 10 years without getting a notice to appear. If you’re undocumented and you stay in the country for 10 years without getting, very clearly, it says, ‘a notice to appear as described in the law.’ And so what happened is that it gets to the Supreme Court [where] eventually somebody says, ‘Well, I didn’t get a notice to appear as described in the law. It said TBD; it didn’t have a date and time on it.’ And the government said, ‘That’s crazy. We’ve been doing this for 20 years. How can you possibly suggest that’s wrong?’ And it gets to Supreme Court and a very good decision says, ‘No, the words mean what they say. You have to follow it.’ So it’s not like there’s no history.
LAW DORK: Date and time means date and time.
REICHLIN-MELNICK: Yeah, date and time means date and time, and you can’t just write TBD on it. And that actually led to two other Supreme Court cases that followed from that, because, basically, they kept trying to find ways around having to deal with the consequences of that. So now the shoe’s on the other foot, to some extent, on the detention front. The only problem is, is that I don’t think they’re right in this situation. The key thing there was that there was a very clear match between the errors. One law said, don’t penalize people who who’ve been in the country for 10 years without getting a notice to appear specifically as described in that law. And then the court, Supreme Court, said, ‘Well, this isn’t the one specifically described in that law. It’s missing the date and time, and therefore it doesn’t count for that purpose.’ And then they eventually decided that it did count for actually starting the case, because that wasn’t really relevant, but for the specific purpose, and they decided that we will punish the government in that case, because they just sort of skipped it. But here, so the legal issue is that there’s this weird legal fiction that this was created in ‘96 that every undocumented immigrant who has not been inspected and admitted at the border is perennially forever and what’s known as quote, unquote, an applicant for admission. And there’s some weird immigration law history reasons for declaring that way. There’s this entire concept of ‘the entry fiction’ that’s sitting around in immigration law from the 20th century, but broadly speaking, it means that from for some legal purposes, even if you’ve been in the country for 20 years, the law deems you an applicant for admission. And so this question is, if you are legally an applicant for admission, are you seeking admission? And 400 district courts have said ‘No, that seeking admission has to be something different,’ and even if you are, as a legal fiction, an applicant for admission, you’re living here. Let’s be serious about what’s actually happening here. You are living here, you are in the country. You’re raising your family.
LAW DORK: Admission is behind you.
REICHLIN-MELNICK: Yeah, and even if you’ve never officially been admitted, you’re not seeking admission. You’re just living your life. You’re not filing any application, you’re not trying to. Yes, you’re technically, legally an applicant for admission. But that cannot be the same as being someone who is seeking admission in the context of who must be detained. And there’s a ton of evidence from the time that no one in Congress thought that way. Nobody when the law was initially put in place thought it changed it, the mandatory detention changes, everything in the legislative record talks about migrants arriving at the border and at ports of entry and airports. It just doesn’t make sense.
LAW DORK: One of the things that I’ve found most convincing to me, just as a like, there’s no way that this could mean this, is the part, and I’m sure you know it better, so can explain it, the element about how there was a delayed implementation of a part that involved, essentially, like, 50,000 people needing to be detained, and so there was a delay in how quickly that would have to be implemented, because Congress knew that that would be unworkable to say the Attorney General had to detain these people overnight, whereas there was no delay for this provision, which would have made it so that millions of people needed to be detained overnight?
REICHLIN-MELNICK: Yeah, so in ‘96 they passed this law that meant mandatory detention for people with criminal convictions, mandatory detention for people seeking admission at the border. Now we’re all sort of reading in the at the border part, because that’s seems to be clearly what they intended. And so in ‘96 they passed the law, and INS goes to Congress and says, ‘Look, you’ve just told us that we have to detain all of these people with criminal convictions. We do not have the space to do it. We cannot detain everybody that you want us to detain. It’s going to cause total havoc. If you just suddenly tell us fill every single bed you have with these people, we’re not going to be able to do it. Can you delay this?’ And Congress says, yeah. And Congress delays that, specifically, that criminal conviction law for two years. And so this question is then, like, how could it possibly have been that Congress intended to possibly have been to actually detain millions of people, when, in reality, that subset of people would have been mandatory detention under the other reason, most of those people, if they were undocumented, would have all been subject to detention anyway. So no one, clearly, who was passing laws at the time, doing immigration policy at the time, providing input into the laws — because, of course, this was the law heavily influenced by ins itself, and they want what they wanted —
LAW DORK: I was gonna say, or enforcing the law.
REICHLIN-MELNICK: Exactly. And so no one at the time has given any indication that they intended this result, even if you can sort of see it’s not a totally crazy argument. Applicant for admission is seeking admission. There is some basic sense to that, but the moment you take a little bit of a harder look at it, you go, ‘This doesn’t make sense. Nobody intended it this way. Congress clearly didn’t mean to write it this way.’ And then you get into some other questions, like the Laken Riley Act. Why even have the Laken Riley Act, which specifically says it is targeted at people who are undocumented, who came across the border, unless you know — why even pass that law, when, according to this interpretation, every one of those people was subject to detention anyway? So a lot of questions get asked. Clearly Congress, when they passed the Laken Riley Act, just in January, did not think that that’s what the law required. The Trump admin didn’t previously thought that. Nobody thought that. And so this, you know, raises the obvious question — sure, there is, it’s not like a laughable argument that they’re making, but it’s clearly, in my opinion, the wrong argument, and I just buy the 400-plus judges who’ve gone the other way. And I do think you know, this is one that might not always break down cleanly along ideological grounds. The dissenter in the Eighth Circuit was a Trump appointee.
LAW DORK: Everything you just said is what we got from Judge Dana Douglas on the Fifth Circuit panel and from Judge Ralph Erickson on the the Eighth Circuit panel. And, earlier this week, at the Fifth Circuit, they did ask for en banc review from the Fifth Circuit of that decision, which I’ve looked at the circuit. It’s very rare that, from my perspective, somebody would be wanting to go from the left to the Fifth Circuit seeking en banc review, and yet, it really seems like if there was a case where you could find it, this would be it. The ‘two’ on the Fifth Circuit were Judge Edith Jones and Judge Kyle Duncan, who, by my count, are two of the four furthest right on the Fifth Circuit. And — I mean, where are we going with this? What’s going to happen here?
REICHLIN-MELNICK: It’s going to the Supreme Court. There’s just no way around it. There had been a small possibility, if the Eighth Circuit had moved even quicker and ruled against the Trump admin, that maybe this would have made it this term, like they put the TPS case — but that clearly isn’t happening. It’s a little bit too late now, but this is going to make it to the Supreme Court next term. The 11th Circuit, I believe, actually also held oral arguments this week, where it looks like it is going to be 2-1. It’s not clear which direction it’s going to be 2-1, but I was following along with someone who was listening to oral arguments. It was very clear one judge had one position, who thought the government was right, and one judge thought the government was otherwise, and the other judge didn’t really lay their cards out. So we’re looking at multiple 2-1 decisions — no unanimous decisions from the circuit court. The Seventh Circuit has already indicated that it doesn’t think the Trump admin is right, even though it wasn’t directly on point. I believe there’s cases pending at the Second Circuit. This is going to make it to every singe circuit court in the country. And, really quickly for people to understand why this is making it to the [court]. Some of this is jurisdictional, because normally, if someone’s eligible for bond, they can’t just go to a district court and file a habeas lawsuit. They have to exhaust their administrative remedies. They’ve got to go in front of the immigration court. They’ve got to file an appeal with the Board of Immigration Appeals. It’s a lengthy process that doesn’t involve the federal judiciary. But by adopting this policy that said very clearly, no bond period instantly, the moment you’re arrested, no bond. That means that the moment they’re arrested, you can file a habeas lawsuit 30 minutes later, because the outcomes are already predetermined; it’s a no, you don’t get bond. And that meant that you saw this flood of cases, and I think the Ninth Circuit is probably going to weigh in on this as well. Soon we will have a circuit split, I am certain of that, and that means Supreme Court, here we come.
LAW DORK: Last thing, I don’t want to let you go without asking you, obviously, those were the two big things this week, next week, the big thing is at the Supreme Court already, and that’s the birthright citizenship executive order.
REICHLIN-MELNICK: I forgot that was next week. Oh, there’s too much going on, Chris.
LAW DORK: We have, obviously last term by by addressing the scope of relief, we got that universal injunction decision from the Supreme Court, but no ruling on the merits of Trump’s executive order, which quickly went back down to district courts and, both as class actions and in the state based cases, there was still nationwide injunctions, even if they weren’t universal injunctions. Now the rubber meets the road and they’re going to have these arguments on Wednesday. What should people be looking for?
REICHLIN-MELNICK: Look, I have been on the record multiple times with this, and I continue to believe that this is an easy case. The 14th Amendment says what it says, ‘All persons born in the United States and subject to the jurisdiction thereof are citizens.’ Period. And ‘subject to the jurisdiction thereof,’ the Supreme Court has said multiple times in the past what that means. There has been a consensus for over 100 years what that means? The Supreme Court basically answered 98% of this in in Wong Kim Ark 150 years ago or 140 years ago. And the Supreme Court itself has mentioned multiple times in random decisions in dicta over the years that if you’re undocumented, you’re child of an undocumented immigrant, you’re a US citizen. This is settled law, but they’ve never specifically said it in a holding in a case specifically challenging it. My hope is that what we hear is that it’s going to be at minimum 7-2, and that we don’t lose any further justices than that. But, if suddenly we start seeing more questioning, I think then I’d start getting a little bit nervous. But this is just such an easy case. There is no good argument to the contrary. All of the legal scholarship that’s been pushed out in recent months is a desperate effort to manufacture some sort of scholarship against this, is questionable, and just doesn’t align with the basic facts of what the Congress was doing in the 14th Amendment.
LAW DORK: I will say it reassures me to hear you say what my instinct is on this, because I do agree. I still think that this is a case that — despite the fact that they also had to have the tariffs case and also had to have the Lisa Cook firing case — that this was the case that they’ve known they were going to have to rule against Trump since Trump issued it. And I think we we saw that from from the first TRO out of, what was it out of, Washington State now, nearly 14 months ago.
REICHLIN-MELNICK: And no one’s been moving fast, other than the district court judges to block these.
LAW DORK: DOJ sure hasn’t.
REICHLIN-MELNICK: DOJ hasn’t been moving fast. The Supreme Court let these things languish for a while before weighing in. No one is acting as if they think this is going to happen. And I know a lot of people are nervous, and they say, ‘Look, at Roe v Wade, look all of these things. Look at Humphrey’s Executor, all of these things they’ve overturned.’ The crucial thing to understand is there were decades long projects to get to that point. It’s not like the Supreme Court woke up one day and said, ‘We’re going to overturn Roe v Wade tomorrow. We just thought about it for the first time.’ Or Humphrey’s Executor. There have been multidecade long projects in both of those situations, to build the scholarship, to make the arguments, to put the pieces in place, to overturn that ancient precedent. None of that has happened here. This is something that was a complete fringe theory, most notably pushed by disgraced lawyer John Eastman, until last year. And so if you questioned every single Supreme Court Justice 18 months ago about birthright citizenship privately, I bet every one of them would have told you it’s the law of the land. James C Ho very conservative justice, a judge on the Fifth Circuit Court of Appeals wrote a law review.
LAW DORK: Careful what you just said.
REICHLIN-MELNICK: Yeah, yeah. Not justice, judge. Judge Ho had said years ago, ‘This is a settled question. Anyone who says otherwise is simply wrong,’ and now he sort of quavered a little bit on that point. But this gives you some sense to show of like there was no grand project to do this. This is just something that popped up from fringe figures on the right, and the Trump administration ran for it, and they ran for it in probably the worst possible way to do it, because they didn’t just try to limit it to children of undocumented immigrants. They also tried to limit it to, for example, children born to people here on student visas or any kind of non-immigrant visa that doesn’t give you permanent presence in the United States, and that’s even further abroad from the arguments about undocumented immigrants. So it’s just — look, we all know anything can happen, and we all know that nothing is secure in this environment. And I don’t want to, you know, say there’s a 100% chance. But I will just say, of the things that I’m worried about, this does not make the top 10. That does not mean it won’t happen.
LAW DORK: That doesn’t mean — yeah, ‘my list does go deep.’
REICHLIN-MELNICK: Unfortunately so.
LAW DORK: Is there any last thing you wanted to share with people, anything you want people to be thinking about, reading about?
REICHLIN-MELNICK: Yeah, I think one thing to look out for, beyond birthright citizenship, is now, as of earlier today, the Supreme Court set oral arguments for the Temporary Protected Status case. That’s now going to be heard on Wednesday the 29th [of April]. So coming up a month from now, we will be hearing a case that will decide the fate of over 350,000 people. And really, we’ll ask the basic question of, ‘If Congress limits jurisdiction on these on TPS, can they just simply ignore the law?’ And what does it mean when a president says, ‘We don’t want these people in this country,’ that you’re third worlders who are garbage people, who come from a shithole country. What does that mean when the people making the decisions are saying that about a minority group and making decisions that affect that minority group, and the Supreme Court hasn’t had to grapple with that in this term. In Trump v. Hawaii, in the travel ban case, back in the first Trump term, those came up, but those arguments weren’t as well developed. At the time, Trump was at least trying to be slightly less obvious. Now this is — the record is so different. The things that he’s said. Coming after that ‘they’re eating cats and dogs,’ coming after all the things that he said since that point, they will have to take that square on and answer that question because the Trump administration is also trying to terminate TPS for Somalia, and the things he said about Somalis has been even more vile than what he said about Haitians. And that racial animus question is something that is one of the questions presented in the TPS case, and they’re going to have to deal it.
LAW DORK: This is another case in which, in these two — this is dealing with Syria and Haiti TPS, in the arguments. And this is a case where, like with the firing of the Federal Trade Commissioner versus the attempted firing of the Federal Reserve Governor that the Supreme Court on the shadow docket did different things. With the original Venezuela [TPS] cases, they stayed lower court injunctions and stays of administration action during litigation. But as to both of these, I thought it was notable when they said — they claim, they do this thing where they defer ruling on the stay requests, but when granting cert before judgment, that’s a nice way of denying it.
REICHLIN-MELNICK: They denied the stay, in other words. They claimed they didn’t, but they did.
LAW DORK: There’s no technical order denying it, but, and so, to the extent that — I think you talking about the fact that there are these real issues they’re going to have to confront — it does seem like that differential treatment does suggest, at the very least, that there are justices who, until they decide that, were willing to treat these differently.
REICHLIN-MELNICK: Yep, and we can’t know exactly why they decided to treat Venezuela differently. There were noticeable differences in those cases, I will completely agree. And the record is very different. One key difference here is that in both Haiti and Syria situations, it’s very clear that the government didn’t even go through the most basic motions required, by law, before terminating TPS. You have to consult with other government agencies about what the conditions are in that country, and they just didn’t. They literally, I’m not making this up, the consultation that they did was a one-line email to the State Department saying, ‘Hey, we’re going to terminate TPS. Do you have any position on it?’ And then 50 minutes later, some random staffer at State responded, saying, ‘The Secretary finds no foreign policy considerations.’ So they didn’t, they did not consult about the country conditions. They’ve agreed that they haven’t done that, or they say that was enough. It’s clearly not. So you’ve got some clear distinguishers here. This is a better developed record than those cases, and I think those are going to be real difficult questions for the Supreme Court to grapple with, in the face of some real tricky jurisdictional issues about whether this case can be heard in the first place, which may end up subsuming all of this. But the stakes are very real, and I’ll be watching that case carefully. And this just goes to show this June is going to be, yet as always, a June with a lot of impacts in a lot of people’s lives.
LAW DORK: Thank you so much, Aaron. For giving us time this Friday afternoon, and I will certainly be turning to you again and encourage everybody else, if you don’t already follow Aaron on social media, you certainly should.
REICHLIN-MELNICK: And I will also say, check us out at American Immigration Council dot org — c, o, u n, c, i, l — we do a ton of great work. We are actually helping litigate some of these issues. We’ve got an incredible practice advisory on these mandatory detention issues, and we’ve been tracking all of the various habeas cases. So check out our website. There’s some really great stuff there.
LAW DORK: Thanks a lot.
REICHLIN-MELNICK: Thanks, Chris.
