I am not an alarmist. I do not like hyperbole, and I try to see issues from multiple perspectives.  Most issues are more complex than any given partisan framing. 

I love this country, and I love our constitutional rights. I tell my students that the United States has the most robust free speech protections in the world, and that is still true. I deeply object to the overuse of the word fascist, especially by those trying to shut down speech to which they object, or by those who disagree with legal government actions when their views are not supported by the democracy.  I object even more profoundly to comparisons to the Nazis, who intended to exterminate every Jew in Europe and succeeded in the millions (including murdering members of my family), and invaded other countries to kill their Jews.

And yet.  It is time for moderates to speak up about the erosion of our constitutional rights by ICE. It is time to take stock of the ways in which liberty, equality, and humanity have been degraded. It is time for people who disapprove of cynical comparisons to fascism to actually notice the similarities. It is time for lovers of this country to appreciate how un-American things have gotten. Candidly, it is past time.

For some context, I do not believe we will ever get to Nazi Germany, or even to Iran (who this year blacked out the Internet, murdered protesters, and then arrested the doctors who treated them). I do not believe we will get there in part due to people exercising their First Amendment rights to protest, speak out, and film ICE agents. President Trump has placed on leave the ICE agents involved in the killing of U.S. citizen Alex Pretti, likely due to public outcry. Greg Bovino has been removed as Border Patrol “commander at large.” The people keep the government accountable.  

The judiciary also keeps the executive branch accountable. A federal district court judge in Minnesota recently held that the President must release refugees admitted to this country legally whose cases are being re-examined. This will likely be appealed. The courts do not always issue rulings people prefer (disagreeing with a ruling politically or morally doesn’t make it legally incorrect), but the courts are processing ICE cases and blocking many of its illegal actions, such as placing children who turn 18 immediately into adult detention centers.

Of course, there is no right to block law enforcement from fulfilling its duties. A nation descends into lawlessness if individuals have unchecked ability to decide which laws they think are and are not acceptable, regardless of democratic will. Every country engages in immigration enforcement. ICE has a difficult job. Former Presidents have taken many of the same steps as President Trump, although with less pushback. There is also no First Amendment right to block traffic, to fail to comply with reasonable dispersal orders, or to assault officers. And there is no right to enter or remain in this country by evading immigration laws.

But it is how we treat even people who violate our laws that defines America’s character. It is the recognition that law enforcement must be fair, just, constitutional, and provide due process, even to potential lawbreakers, that should distinguish us.  It is the knowledge that most of our ancestors came here fleeing something, or looking for a better life, that should promote humanity of treatment. It is the awareness that we are a nation made stronger by immigrants that should help define us and even allow many who have built a life here and contributed greatly to stay. And it is the promise that First and Fourth Amendment rights supersede any political will that is that truly makes America great.

The following are examples of just a few alarming steps we have taken down the totalitarian path.

• The Supreme Court, in a concurrence on a preliminary ruling on its emergency docket (not a final ruling) has cleared the way for ICE agents to, at least temporarily, use a combination of ethnic background, location, and place of employment to give agents “reasonable suspicion” to conduct a Terry-like stop and detain people, who must then alleviate that suspicion by proving they are citizens. If they cannot alleviate that suspicion, the officers use probable cause to arrest and detain people.
  • This has led to U.S. citizens, mostly non-white U.S. citizens, feeling like they must carry identification at all times (I remember a relative of mine, when I was a kid, jokingly doing an S.S. officer impersonation which went, “Mr. Goldberg, where are your papers…..”) My friends, who love this country, whose parents were immigrants, who are lawyers and law professors, fear having to prove their identity, and potentially not being believed, because they are not white. Imagine the fear of those who are not well versed in the law.
  • Indeed, U.S. citizens have not been believed and have been subjected to abusive tactics by ICE agents. This presents both Fourth Amendment unreasonable search and seizure and Fourteenth Amendment equal protection problems. The Supreme Court should retake this case when it is ripe for a final adjudication and prohibit this type of racial and ethnic profiling under the Fourth Amendment, especially where the bar seems to have been lowered on what is necessary to garner reasonable suspicion. Additionally, the Fourteenth Amendment guarantees equal protection under the laws, prohibiting explicit racial classifications, especially those based on animus.
• Our public officials are making statements demeaning people based on their country of origin. President Trump called Somalis “garbage.” The President has free speech rights, and all of us should feel entitled to criticize a country or argue that we shouldn’t adopt its practices. Prosecuting people for financial crimes, like fraud, is also necessary (although it should be done even-handedly and not just against one’s political enemies, a sign of government corruption).  Criticisms of a country and its policies are very different than demeaning all of the people from that country, making sweeping generalizations, then turning extra law enforcement resources on that population.
• ICE circulated a memo claiming that ICE can enter people’s homes, if there has been a final deportation order, without judicial warrants. Although this memo hasn’t been shared extensively within the department, it is being used to train new officers. If accepted by the courts, this practice would mark a major expansion into exceptions from the general requirement that judicial warrants are needed to arrest someone inside their home, unless the police can prove exigency like safety concerns or flight risk. Once law enforcement enters someone’s home, they can also seize evidence in plain view if there is probable cause to believe the evidence is connected to a crime (a lower standard than beyond a reasonable doubt). The home is considered sacred under the Fourth Amendment, and this expansion would have a dramatic impact on both non-citizens’ and citizens’ privacy.
• Some ICE detention centers have conditions that are inhumane and over-capacity. People report, for example, sleeping standing up. If the government wants to treat immigration enforcement as civil, justifying not giving arrestees their Fifth Amendment rights against self incrimination, the conditions of confinement cannot be punitive and cruel.  
• Targeted deportations based on speech may violate the First Amendment. There is wide discretion in decisions regarding visas and citizenship/removal under the Immigration and Nationality Act. There is also no free speech right to take over buildings or prevent others from exercising their free speech rights. Many governments in free countries deny visas to people based on views that country finds disfavorable. But our government may be purposely targeting people for deportation based on protected speech. Even if permissible under the broad, discretionary INA (although that may violate the First Amendment), it corrodes the pride we should all feel in living in the country with the most robust First Amendment protections. Our free speech jurisprudence is based on the “marketplace of ideas” metaphor, where, so long as everyone is permitted to speak freely without force or intimidation, the best ideas will emerge. The solution to offensive speech is more speech, not censorship.
• Rogue officers exist in every legal and moral system. The way that an administration reacts to rogue officers –through investigation and perhaps prosecution if warranted – is what separates bad actors from a corrupt system. I have concerns that government actors, after ICE agents shoot and kill protesters or onlookers who are unarmed or have been disarmed –  distort the truth to impugn those who have been killed. (This is not a comment on whether the officers had a reasonable – even if mistaken – belief in imminent bodily harm, but every ICE shooting should be thoroughly investigated. If not, potentially rogue actors create a corrupt system.)
  • Truth is the antidote to authoritarianism, which is why authoritarian governments invariably engage in dramatic and often deadly censorship measures. Although both the left and the right, at various times and in different contexts, have spoken out against bringing guns to protests, our Second Amendment rights include, according to the Supreme Court, a right to individual gun ownership subject to some restrictions. The government’s first response to unarmed citizens who have been killed by our law enforcement, regardless of the circumstances, should not be to defame the victims.

Our country is premised upon the belief that “all men are created equal” and entitled to inalienable rights – this includes people accused of crimes, incarcerated people, non-citizens, and especially those who criticize the government.

To be clear, growing authoritarian tendencies are not the exclusive province of the right. I also fear the far left becoming more mainstream in the Democratic Party. Members of the Democratic Socialists, for example, also demonize groups they disapprove of and wish to expand state power in concerning ways. Left-leaning populism, if fully effectuated, will also lead to anti-American results, although it is not nearly as close to pulling on the levers of federal power at this point. This is not to create an equivalence, but to note that the farther President Trump’s administration takes us, the more he makes extreme left politicians look like heroes. The populist left and right are polarizing each other in ways that cannot be good for social welfare, public harmony, public order, or our constitutional protections for liberty and property (protected under the Fifth and Fourteenth Amendments).

It is time for moderates to speak up, for our Constitution, for our people, and for all people.