SCOTT SIMON, HOST:
Immigration and Customs Enforcement has violated close to a hundred court orders this month during its immigration crackdown in Minnesota, according to the chief federal judge in the state, Patrick Schiltz. The judge compiled a list of 26 ICE violations and accused the Trump administration of disregarding the rule of law, writing, quote, the "list should give pause to anyone, no matter his or her political beliefs, who cares about the rule of law." Judge Schiltz wrote that ICE has likely violated more court orders this month than some agencies have violated in their entire existence.
We're joined now by Stephen Vladeck, law professor at Georgetown University, who writes a newsletter about the Supreme Court called "One First." Professor, thanks so much for being with us.
STEPHEN VLADECK: Thanks, Scott. Great to be with you.
SIMON: What are some examples of orders that ICE has disregarded?
VLADECK: Yeah. So the majority of the cases to which Chief Judge Schiltz was referring involve this really controversial move ICE has made across the country to treat any noncitizen who was never lawfully admitted to the United States - so an undocumented immigrant, Scott, even if they've been living here lawfully for 30, 40 years without - you know, without breaking any laws - to treat all of those folks as if they were, quote, "arriving aliens," which subjects them to both arrest and mandatory immigration detention. A number of those folks have brought what are called habeas petitions challenging this effort by ICE, and they've won an overwhelming majority of those petitions. And ICE has been very slow to comply with those habeas petitions - to release these individuals from custody, to return them to where they were initially arrested. Those are the orders that Chief Judge Schiltz, I think, is especially up in arms about.
SIMON: Can they do that? I mean, can they drag their feet that way?
VLADECK: I mean, I think the tricky part, Scott, here is what a couple law professors - Leah Litman and Dan Deacon - call legalistic noncompliance, which is, you know, the line between just sort of inefficiency on the part of the government and outright defiance is often a blurry one. So, you know, ICE is moving these folks all over the country. Even in the best of circumstances, it would take time to get them back. It would - you know, there's the chance that you have paperwork mistakes. But I think the problem is that at this point, Scott, and this is where Chief Judge Schiltz, I think, was really frustrated, ICE has lost the benefit of the doubt - that there are so many cases in which they are so slow to comply, in which courts have ordered the release of these individuals and it's taken much longer than it should, that it really starts to look like a lot more than just negligence and inefficiency. It starts to look like it's malicious.
And that's consistent, of course, Scott, with what we've seen in some other high-profile immigration cases - the Alien Enemies case here in Washington, D.C., in which, you know, the Trump administration removed about 150 individuals in violation of a court order; a judge in Boston, Judge Murphy, in a case about the eight men who were removed to South Sudan in violation of a court order. So it really does seem to be the immigration cases especially where we're seeing the most head-on conflicts between federal courts ordering the Trump administration to take specific action and the administration not openly defying those orders, but at least sort of thumbing its nose and not doing anything to hustle.
SIMON: And we should note - Judge Schiltz, former clerk for Justice Antonin Scalia on the court, and he was appointed by President George W. Bush. What should we see in his warning?
VLADECK: I mean, I think the - you know, the - your mention of his pedigree, I think, is relevant, Scott, because it really is striking that Chief Judge Schiltz is not a firebrand. You know, he's not some - to borrow what Stephen Miller would say - liberal activist judge, right? He is a by-the-book, middle-of-the-road judge who's not prone to speak out. And yet, Scott, this is the second time in a week he's felt impelled to do so. I mean, just last Friday, Chief Judge Schiltz had to write these two extraordinary letters to the Federal Appeals Court - the 8th Circuit that covers Minnesota - because of what he thought was the Department of Justice's misbehavior in the investigations of the Cities Church protest.
So, you know, I think what it really should tell us, Scott, is if judges like Patrick Schiltz are raising these kinds of alarm bells, everyone ought to be listening, whether you are a Democrat, Republican, independent - everyone who actually thinks that a critical part of our democratic system is the government complying with what courts tell it to do.
SIMON: And how do you feel the federal judiciary is handling this moment of attention with immigration operations and the protests against them?
VLADECK: Yeah. I mean, I think two different things are true at once. I mean, I think, on one hand, we're seeing federal judges from across the country, from across the ideological spectrum, really, actually, I think, respond quite remarkably. I mean, I think the federal courts have probably been the one institution over the last, you know, 12 months and 11 days that have done the most to actually stand up for their institutional responsibility. And we're - you know, they're under unprecedented pressure, both insofar as the volume of cases is concerned, Scott, and the - yeah - and the attacks and the assaults that they're receiving from the Trump administration. The deputy attorney general says we're at war with the federal courts. The federal courts, I don't think, think they're at war.
The problem, I think, Scott, is that at the end of the day, the federal courts can only do so much on their own. And so I think a lot of what we're seeing is really a rear-guard action from federal judges across the country trying to hold the line until and unless other institutions can also push back against what really does appear to be increasing lawlessness on the part of the Trump administration. That's where I think the conversation turns to the role of Congress, including whether the DHS funding that you were talking about with Sam might have any, you know, ability to achieve any reform and any checks on ICE. But also, I think, Scott, it's incumbent upon all of us to pay attention to what's happening, to go to the polls in November and, if we really don't like what's happening, to not just leave it to all of these judges to do our jobs for us and to hold the line.
SIMON: Professor Stephen Vladeck of Georgetown University Law School in Washington, D.C. Professor, thanks so much for speaking with us.
VLADECK: Thank you.
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