Tag: news

ICE and the Constitution: A moderate’s take on why the tactics of ICE have led to anti-American results 

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.

Deporting People for Pure Speech is Likely Unconstitutional (even under Holder v. Humanitarian Law Project) and Undermines American Exceptionalism

I am a First Amendment scholar. I protect the right of all to protest in accordance with free speech values. I also have personal and professional reasons to be concerned about some of the protests that have overtaken some university campuses.

Taking over buildings, shouting down classes and speakers, and assaulting staff is not speech. Some of those protest tactics seek to shut down dialog or use coercive, non-expressive methods to make change. Federal laws like Title VI, which prohibits discrimination and harassment that deprives students of their ability to receive their education, should be employed against some of the illegal takeovers of universities.

That said, what I love about this country is our tolerance for a wide variety of views, from enlightened and open-minded to the un-nuanced, ignorant, crass, or hateful views. Our free speech tradition is second to none. We have not always been perfect, but we have upheld the First Amendment rights of the following diverse speakers: Jehovah’s witnesses who didn’t want to salute the flag or put “Live Free or Die” on their license plates, neo-Nazis who wanted to march in a town of recent Holocaust survivors, protesters who want to burn the American flag, professors who don’t want to have to follow the orthodoxy of their institutions or want to place controversial and offensive items on their final exams, Communist professors who do not want to share their lecture notes or associations, nonprofit corporations who want to amass funds to create political documentaries, advertisements by civil rights leaders criticizing the sheriff of Montgomery Alabama, artists who wish do not wish to be compelled to create things that undermine their religious beliefs, students who wear armbands to protest war, a man who put the F word on a jacket to a courthouse to protest the draft, and so many more.

The way that the Trump administration is pursuing the deportations of foreign students flies in the face of this grand tradition. I am profoundly troubled by this administration’s justifications for arresting and pursuing deportation of students on visas and green card holders.

The administration’s interpretation of the Immigration and Nationality Act is that it has full discretion to deport people deemed enemies of the state or those who assist terrorist groups like Hamas. An interpretation of the laws that allows deportations of people purely for expressing political views would likely be a violation of the First Amendment, even if we can originally deny visas to those who advocate for the overthrow of our country or have certain affiliations. As applied to pure speech, the law is vague and viewpoint discriminatory.

There is precedent where national security interests override free speech concerns. For example, in Holder v. Humanitarian Law Project, the Supreme Court upheld a federal statute that prohibited nonprofits from advising designated foreign terrorist organizations, even on how to conduct peaceful diplomacy. In that case, however, the meaning of “training” or “expert advice or assistance” was not considered vague by the Supreme Court. Those facts are in stark contrast to applying immigration law to a wide range of views about Israel and Palestinian rights.

In addition, the Supreme Court recently upheld the forced sale or ban of TikTok, partially on the grounds that the law did not implicate speech because it allowed for a divestiture and partially on the government’s stated national security concerns. The Supreme Court does give a great deal of deference to the government in articulating national security concerns. But this deference can only go so far. There was no notice in the Immigration and Nationality Act that merely writing an opinion piece, for example, would be equated with serving a terrorist organization.

But even if our Constitution would technically allow these deportations, because of the interaction between free speech rights and immigration discretion with national security interests, it is the wrong path to take. If Mahmoud Kahlil is being detained for assisting protesters in taking over a building, charge him with that. If Rumeysa Ozturk has done anything besides write an op ed in a student newspaper, please put forth this evidence. Currently, it appears that the administration is equating pure speech with illegal conduct. This flies in the face of our free speech doctrine and ultimately will erode speech for all of us and embolden illegal protests. If just text is outlawed, then people will also resort to the illegal methods we wish to curtail. Dialog, understanding, and knowledge is what we should be promoting.

In his seminal dissent in Abrams v. United States, Justice Holmes said that the American experiment, and the free speech experiment, was to let all ideas come to the surface for testing.

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.”

Justice Jackson, in his remarkable Barnette opinion, held that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

This is the way. This is the way to show patriotism, and it is the best way to support Jewish constituents while honoring the free speech traditions that benefit us all. Arresting people for what appears to be pure, political speech leads only down the totalitarian path. The administration should pursue those who engage in illegal conduct, or seek to deprive the rest of us of our right to express our opinions. But targeting people living and studying in this country purely for the conclusions they have reached is wrong, unjust, un-American, and unwise.

Do Trump’s executive orders affecting the use of certain words when applying for government grants (including research grants) violate the First Amendment?

President Trump’s Executive Orders ending governmental diversity, equity, and inclusion preferences and programming are a dramatic reversal of the initiatives of the Biden administration. Part of this reversal includes ending DEI programs supported by the federal government, including “equity-related grants.” Researchers who receive grants from billion-dollar-budget agencies, like the National Institutes of Health or the National Science Foundation, are now removing words from grant proposals in order to comply with Trump’s executive orders. Because these executive orders are vague and governmental direction has often been unclear, researchers with active proposals are unsure whether their projects are still eligible for funding.

The NSF and NIH are now analyzing key words within grants to determine compliance with executive orders. Certain words will flag further review, like “pregnant person” or “gender.” These words make the project ineligible for funding only in certain cases. As an example, the word “accessibility” would be flagged for review, but if a grant proposal is about “data accessibility,” then the proposal would not be in violation of the executive order. If an NSF grant proposal is deemed ineligible, it must either be modified or risk being terminated in part or in full.

Agencies have also taken down websites that may no longer comply with these executive orders. The Center for Disease Control cannot issue publications with certain banned words as well. These government actions do not present First Amendment problems because the government is generally permitted to speak as it wishes on its own websites.

First Amendment problems may arise, however, because these executive orders have a chilling effect on how scientists apply for funding. Compliance with the executive orders may also have larger-scale impacts on the scientific research being performed. When private researchers self-censor in order to receive government funding, this may implicate the heart of the First Amendment’s concern of government perversion of the marketplace of ideals in the search for truth.

Before I present some aspirationally objective legal analysis of these executive orders, I must note President Trump is not the first president to condition grants, including scientific grants, on a scientist’s or academic’s adherence to the president’s preferred political or ideological approach. For example, President Biden required statements about diversity and inclusion plans in order to apply for certain research grants, including NASA research grants. Many researchers, including liberal scientists, believed this politicized and skewed research in certain directions and introduced factors into the grant decision-making process that were unrelated to the merits of the research. Researchers were also encouraged to apply for diversity experts and to allocate funding to these experts instead of to their primary research.

It is therefore inaccurate to state, as this Washington Post article does, that the “scientific enterprise” has previously been politically independent. Unfortunately, both parties have distorted the search for truth with their favored ideological approaches. I would applaud a return to the prioritization of truth over social justice or ideological aims in our research institutions. The question is, however, what governments are constitutionally permitted to do, not how they should behave.

That said, Trump’s policies seem to present grave speech harms to researchers and organizations who rely on federal funding and wish to, for example, conduct research about certain subjects, such as health inequities. If, as Trump’s executive orders imply, compelling researchers to focus on DEI topics is problematic, then it is also problematic to prevent researchers or grant recipients from using this approach. Both Biden’s and Trump’s executive orders proclaim to be combatting discrimination, and opponents of both accuse the other of perpetuating discrimination. The operative question is what constitutional limits are placed on the ability to condition grant funds to achieve these aims. My tentative answer is that there seems to be a First Amendment problem here.

In analyzing the free speech clause of the First Amendment, courts distinguish between government employees, who have very limited speech rights when speaking in their official capacities, and private citizens, who have robust free speech rights. (This is why I can use the word “diversity” all I want in this blog, and no one can punish me for it.) Grant recipients exist somewhere between government employees and purely private citizens.

The government has discretion to selectively fund certain programs through grants. For example, the government can pay grantees to run an anti-smoking campaign but does not have to fund a pro-smoking campaign. The Supreme Court has held that recipients of federal funding for pregnancy-related services can be denied funding if they engage in “counseling, referral, and the provision of information regarding abortion as a method of family planning” without violating free speech. The government can choose how to allocate its resources to promote certain policies.

However, the government cannot condition receipt of funding on refraining from speech that is outside the purposes of the program. As an extreme example, the government cannot condition receiving funding for the production of high quality musical works on musicians never talking about Vietnam. The Supreme Court has held that a government policy that requires those who receive funding to serve populations affected with HIV to explicitly oppose prostitution is a First Amendment violation, because this speech-restriction was outside of the scope of the program. According to the Court, “by demanding that funding recipients adopt—as their own—the Government’s view on an issue of public concern, the condition by its very nature affects ‘protected conduct outside the scope of the federally funded program.'”

As an example of this, in 2020, a federal trial court in California held that Trump’s conditioning grant funding on an LGBTQ organization’s no longer promoting “divisive topics,” such as implicit bias, likely violated the First Amendment. The court held that Trump had no power to condition grant receipt on not discussing certain topics in the organization’s community advocacy.

The situation at issue here, however, may be distinguishable. The Trump administration could argue that it is not preventing researchers or scientists from advocating particular views outside of the scope of the federal grant aid. Instead, Trump could argue, the government is selectively funding certain research with methodologies that do not reflect certain discriminatory ideological views. This is a dangerous argument, given that the point of science is to discover truths, not promote or oppose a particular agenda.

As a closer analog to funding of the sciences, the Supreme Court has held that the First Amendment is not violated when the National Endowment for the Arts considers whether an artist has shows “decency and respect” for diverse beliefs and values in their art in awarding grant funding. However, part of the Court’s rationale was that this decency and respect was not a requirement in receiving grant funding, just a consideration. To the extent that scientists with certain approaches cannot receive federal funding as a requirement, Trump’s executive order is more constitutionally suspect.  

A district court has held that the federal government couldn’t condition a Stanford scientist’s receiving a contract to study artificial hearts on a confidentiality clause, which allowed the government to block publication of research. Although this case is legally distinct, it means funding science by the government has its First Amendment limits, and they may be exceeded here.

I do hope someone challenges these executive orders because clarity on what is constitutionally permissible will be invaluable to the grant recipients, including scientists, who work to advance the state of our knowledge. Vague and uncertain standards lead to extra censorship as people try to comply with requirements they don’t fully understand.

There are other executive orders that may be constitutionally infirm. I have limited this analysis to grant proposals because conditional funding presents discrete First Amendment issues. This blog does not address, for example, the executive orders that impact K-12 curriculum and diversity programming in higher education.

Edit: This language, in Rust v. Sullivan, indicates there may be a good basis for challenging President Trump’s funding conditions: “the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.”