Pod Insights 5-4 Immigration and Naturalization Service v. Lopez-Mendoza About this episode I think we can all agree that the Constitution guarantees every individual certain unalienable rights–oh wait, sorry, getting a call. Right. Sorry. Okay. Yea. Got it. Hey, so I think we can all agree that immigration law is different from other laws, and the Constitution doesn’t really apply there.
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Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:00 Speaker 00 Immigration and Naturalization Service comes to Lopez Mendoza.
0:08 Speaker 01 Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about INS v. Lopez Mendoza, a case from the 1980s about the extent to which constitutional rights apply to deportation proceedings. Two undocumented Mexican workers were arrested while on the job by Immigration and Naturalization Service agents and ordered to be deported. The workers sued, arguing that their Fourth Amendment rights were violated because the agents didn't have a warrant when they entered their workplace. But the Supreme Court sided with INS, saying that immigration cases are civil, not criminal, so people facing deportation need not be afforded the same protections as criminal defendants.
0:51 Speaker 01 This is Five to Four, a podcast about how much the Supreme Court sucks.
1:03 Peter Shamshiri? Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have filled our country with racism like a Young Republican group chat. I'm Peter. I'm here with Michael.
1:13 Michael Liroff? Hey, everybody.
1:13 Peter Shamshiri? And Rhiannon.
1:14 Speaker 04 Hello. Can we just talk about the young lads in the group chat? Peter's referring to a Young Republicans group chat where they're all gross racist Nazis and, you know, their identity, whatever, has been revealed. So there's some photos going around. Uh, this is a type of guy.
1:34 Michael Liroff? Yeah.
1:35 Speaker 04 With a type of look. And I think we should all start being braver and saying that this look is disgusting.
1:44 Michael Liroff? It is.
1:45 Peter Shamshiri? Yeah.
1:45 Michael Liroff? It is.
1:46 Speaker 04 You ugly.
1:47 Peter Shamshiri? They are of a type. And we obviously are woke kings and queens here on this podcast, so we don't want to body shame, per se, but it is weird that they all look ugly. Like, they're all ugly in the same way. And like, once every three months, there's a new Young Republican group chat. It's completely loaded with Nazis, and then the pictures come out and you're like... Again, again with this guy.
2:12 Speaker 04 Worst suits you've ever seen, a real ruddy sort of quality to the skin. Look like they smell like boiled hot dogs.
2:21 Michael Liroff? They somehow both look childish, like cherubic and like 45 at the same time.
2:28 Speaker 04 Yeah.
2:28 Michael Liroff? Weird. It's weird.
2:30 Peter Shamshiri? I think something about conservatism, they don't have a good sense of style, but they are obsessed with certain like class markings. So they'll have like nice suits, but they look like shit. And they'll have like really bright colored ties that I'm sure are like relatively expensive, but like don't look good. The haircuts are all fucked up.
2:53 Michael Liroff? Oh, the haircuts are real bad.
2:55 Peter Shamshiri? It's very bizarre. Like, I just feel like more research is needed. You know what I mean? Like, we're all seeing this guy, someone who's sort of like a student of guys, needs to go out there and put their PhD thesis together. What's happening?
3:09 Speaker 04 There's so much material here.
3:13 Peter Shamshiri? All right. This week's case, INS v. Lopez Mendoza. This is a case from 1984 about your constitutional rights in deportation proceedings. This year, we've been covering a ton of modern cases from the Supreme Court. All of the sort of direct facilitation of the Trump administration by the Supreme Court. But we wanted to go back in time a little bit and talk about an old case that is facilitating the Trump administration almost as directly. Couple of Mexican immigrants, allegedly undocumented.
3:53 Peter Shamshiri? Here on Lawfully, of course, were picked up by the INS, Immigration and Naturalization Services. They were arrested without any warrant in sight. An immigration judge proceeds to order them to be deported.
4:09 Peter Shamshiri? They challenged their arrest and deportation order on the grounds that they violated the Fourth Amendment, which protects against unreasonable searches and seizures. But the Supreme Court, in a five to four decision, said, who cares? Get out of here. Get out of here, guys. Boo.
4:29 Michael Liroff? Go back to where you came from.
4:31 Speaker 04 Yeah, get the fuck out of here and forget the Constitution, you know? Like, uh.
4:36 Peter Shamshiri? It's not for you.
4:37 Speaker 04 Yeah, it's not for you. That's basically what this case comes down to. Let's talk about the Constitution. Let's talk about, you know, what makes an arrest legal or illegal, according to the Fourth Amendment. We've talked about the Fourth Amendment a lot on this podcast, obviously, because the Fourth Amendment defines what your constitutional rights are. Basically, like, as to the police, what can the police search? What can the police seize? Can the police arrest you? These are rules, constitutional rights, that come out of the Fourth Amendment. So if we're talking about a criminal case, if we're talking about the rights of criminal defendants, if we're talking about you on the street and the police walk up to you, what does the Fourth Amendment say that the police have to do?
5:18 Speaker 04 What do officers need in order to, like, enter a place, to search, to arrest somebody? Well, generally, we know the Fourth Amendment says no unreasonable searches and seizures, and there's plenty of fucking Supreme Court cases that interpret what this means. But in general, for this case, we're thinking in the world, the realm of the warrant requirement. Like, generally, there are lots of exceptions, sure, but generally, in order to search a place, in order to show up somewhere and just arrest somebody, you need a warrant. You need a search warrant. You need an arrest warrant. That's the world you would think that we would be in,
5:59 Speaker 04 except here's a case where the Supreme Court says, nah, immigration court, immigration proceedings, that's something different. So, place yourselves in the year 1976. INS officers, like Peter said, these are Immigration and Naturalization Services agents, federal agents. They roll up to a trans- Transmission repair shop in San Mateo, California, where Adan Lopez Mendoza works at the time. The INS agents, they do not have a warrant to search this place, nor do they have an arrest warrant for Lopez Mendoza or anybody else. And in fact, the owner of this business straight up refuses to allow the INS agents to talk to any of his employees.
6:43 Speaker 04 If you're thinking back to the Fourth Amendment context, if an owner of a house or an owner of a business gives consent, says, yeah, cops, you can go in, you can search, right? That would give the cops permission under the Fourth Amendment and make whatever search they do constitutionally valid, right? Here, the owner of this transmission repair shop says, no, you cannot talk to my employees. Well, what do the INS agents do? They do it anywhere. Nevertheless, while one agent continued to talk to the business owner, another goes in the shop. And after a few questions, Lopez Mendoza gives his name and he says that he's from Mexico. The INS agent places him under arrest.
7:26 Peter Shamshiri? Bust it, buddy. No Mexicans allowed.
7:28 Speaker 04 Yeah, the INS agent places him under arrest. Lopez Mendoza is taken to, I believe, first a county jail and then it goes into immigration court, where the federal government brings deportation proceedings against Mr. Lopez Mendoza. Again, having been on premises that were entered, searched by federal agents with no warrant and arrested without a warrant. Another man in a separate case, but these cases end up being consolidated, brought together to the Supreme Court at the same time. Elias Sandoval Sanchez was arrested in 1977 at his place of employment, which was a potato processing plant in Pasco, Washington. Again, INS agents show up to that plant
8:12 Speaker 04 and they start to check for what they call, of course, illegal aliens. During a time where workers are transitioning between shifts, INS officers put themselves at the exits of the plant and basically just start talking to everybody, you know, lobbing questions, who are you and where are you from, at the employees walking in and out.
8:33 Peter Shamshiri? This is like a few decades before ICE is like an actual agency. But this is ICE behavior, right? The immigration, the immigration agent's sort of basic functionality.
8:45 Peter Shamshiri? Has not really changed. They have very light regard for the law.
8:50 Speaker 04 Fishing expedition.
8:51 Peter Shamshiri? Everything is just, yeah, everything is just sort of a fishing expedition where they're just sort of prodding around, waiting for an excuse and then pouncing.
8:59 Speaker 04 And so Sandoval Sanchez is one of the people who was questioned by an INS agent. In fact, there's some mix up where an INS agent sort of assumes that somebody else is Sandoval Sanchez, asks that person some questions and thinks that that person acts suspiciously. There's a lot of dipshit federal agent behavior here. That's not legally sound nor reasonable. But at the end of the day, what happens, Elias Sandoval Sanchez is also arrested, taken, I believe at first to a local jail, and just like Mr. Lopez Mendoza is put in immigration proceedings, in deportation proceedings. And both of these men assert, now wait a minute,
9:39 Speaker 04 we were arrested and in fact, INS agents, you know, federal cops were searching the premises where we were without a warrant. This is in violation of our Fourth Amendment rights. This is in violation of our constitutional rights. And so your deportation proceedings that you are bringing against me to force me to leave this country, to be deported, those deportation proceedings are only being brought because you illegally arrested me in the first place. You violated my constitutional rights. So this is what Mr. Sandoval Sanchez and Lopez Mendoza are arguing, and this is how we get to the Supreme Court.
10:18 Peter Shamshiri? Yeah. So let's talk about the law a little bit. The Fourth Amendment says that you cannot be subjected to unreasonable searches and seizures. The way that the courts generally deal with this is that if cops gather evidence in an illegal search, they cannot use that evidence against you. It's what's called the exclusionary rule. The evidence is excluded from consideration. So these guys are saying, hey, My arrest was illegal, so I can't constitutionally be deported based on that arrest, right? The fruits of that arrest should be excluded from consideration here.
10:53 Michael Liroff? You may have heard of this called the fruit of the poisonous tree.
10:56 Peter Shamshiri? Yes, if you're already in law school, at which point. I don't think normal people have heard of that.
11:03 Michael Liroff? Or you watch a lot of Law and Order.
11:04 Peter Shamshiri? But, yeah, that's right.
11:05 Speaker 04 They talk about it on Law and Order, yeah.
11:07 Peter Shamshiri? True, true. So, all right. One thing to keep in mind here is that the question in this case isn't whether the Fourth Amendment was violated. We're sort of assuming for the sake of argument that these guys did have their Fourth Amendment rights violated. The question is whether the fact that their arrest was unconstitutional means that they can't be deported.
11:27 Michael Liroff? Right.
11:28 Peter Shamshiri? In other words, does the Fourth Amendment actually apply to deportation proceedings?
11:33 Speaker 04 Hmm.
11:34 Peter Shamshiri? Or not really, right?
11:35 Michael Liroff? Mm-hmm.
11:36 Peter Shamshiri? Sandra Day O'Connor writes the majority here.
11:40 Speaker 04 We haven't talked about Sandy in a long time.
11:43 Peter Shamshiri? Now, we've been so focused on modern cases that sometimes you lose sight of the classics, the classic villains that we all grew to love. Sandra Day O'Connor, first woman on the Supreme Court, proof that diversity does not work. Sandra Day O'Connor starts off by saying, quote, "A deportation proceeding is purely a civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime." Now, this is actually incorrect. Remaining unlawfully in this country is not always a crime.
12:28 Peter Shamshiri? Generally, it would be a civil offense. So, right out of the gate, Justice of the Supreme Court just misstating the law in a very fundamental way.
12:37 Speaker 04 Yeah.
12:38 Peter Shamshiri? By the way, the dissent corrected this. The dissent was like, "You're wrong about that, by the way." And she was like-
12:43 Speaker 04 Leave it in.
12:44 Peter Shamshiri? I'm not going to edit it.
12:45 Speaker 04 Yeah, because what's the purpose, right? Why is she making this argument? So that immigration proceedings and immigration law are something totally separate from criminal law, where constitutional rights apply.
12:55 Peter Shamshiri? Right. So- Her big picture argument here is that immigration proceedings are civil proceedings, not criminal, and we generally do not apply the exclusionary rule in civil proceedings. So we do not need to apply it in the deportation context. This is sort of a half baked argument. I think it's true that rules tend to be less stringent in the civil context, but that's because the stakes are generally speaking lower, right? In criminal cases, you can go to prison. You can have your freedom stripped away from you. In civil cases, that's generally not true. In most of them, you can just lose money or property or whatever, right?
13:35 Peter Shamshiri? But these people are at risk of being deported, which does seem like a pretty big imposition on your freedom, right?
13:42 Michael Liroff? And in between being detained and imprisoned.
13:46 Peter Shamshiri? Right. So I think saying these are civil cases and then washing your hands of it, it's just not really reckoning with the reality of these cases, even if it's true that they are civil cases. And if you're sort of wondering, well, what makes something like for sure a civil case as opposed to a criminal case? The simple answer is again, well, like the risk of prison time, but the more long-winded answer is it's arbitrary. You know, there are many situations where it's a very gray area, and frankly, this is one of them, but she doesn't really reckon with that. So she then does an analysis where she says, okay, we need to weigh the cost of excluding the evidence against the benefits. And in this section, she makes several very stupid points.
14:31 Michael Liroff? Pause for breathing.
14:34 Peter Shamshiri? Well, first of all, and we'll circle back to this, but like process what I just said, right? Because again, we're sort of assuming that they had their constitutional right violated, right? And then we're deciding what to do about it. Do we exclude the evidence that was illegally obtained or not? And she's like, all right, let's weigh the cost against the benefits. And it's like, well, why?
14:59 Peter Shamshiri? Because if you, if you've already, like, if there's a determination that their rights have been violated, then why are, why are we, like, doing policy to figure out whether we should care about it?
15:09 Speaker 04 Yeah, and why are we deciding the value, the value of that violated right?
15:14 Peter Shamshiri? Right, right. So-
15:16 Michael Liroff? But the cost benefit analysis is sharp, so.
15:19 Peter Shamshiri? Yeah, so then she gets into it. So first, she says, even if we exclude evidence from these illegal arrests, other evidence could be used to deport them.
15:29 Michael Liroff? Hmm.
15:30 Peter Shamshiri? Which, like, yeah, that's true in, like, every case, right? If some evidence is excluded because it was illegally obtained, you can still use other evidence to convict someone of the crime, right? That's just how evidence works. That's-
15:45 Michael Liroff? Yeah.
15:46 Peter Shamshiri? I, so like, what, what are you trying to say here? I don't quite get it. Second-
15:52 Michael Liroff? It doesn't make any sense.
15:53 Peter Shamshiri? She says that the vast majority of these cases, 97.5, end in self-deportation. So it's very rare that immigrants who are in this circumstance actually challenge their arrest, and then it's even rarer that they challenge it on these, like, Fourth Amendment grounds.
16:10 Speaker 04 Yeah, just to paint the picture, often, if somebody, if, if a migrant is arrested, often, one of the first things that happens is they are offered to sign papers where they agree to be vol- quote unquote, voluntarily deported. So that's what she's referring to, that in almost 98% of these cases, immigrants are signing to voluntarily, quote unquote, voluntarily self-deport. Never mind that often this paperwork is not properly explained to them, not in a language that they understand, et cetera, et cetera.
16:40 Peter Shamshiri? Right. It's either, like, self-deport or get, like, run through this, like, pseudo-justice system.
16:47 Michael Liroff? Right.
16:48 Peter Shamshiri? So, anyway, the point that she's trying to make here is that if we exclude the evidence, it won't deter officers from making illegal arrests because these challenges are so rare.
16:58 Michael Liroff? Hmm.
16:59 Peter Shamshiri? Again, I just have to say, this feels like a weird analysis. Like, she's trying to analyze whether excluding evidence will deter officers from making illegal arrests. Like, why is this the analysis? Like- Isn't a constitutional violation just not allowed either way? Like, why, why are we being like, but it won't deter them, they won't care. It's like, okay, well, shouldn't you then punish them for it? If you think that they're not gonna, like, I don't, it doesn't really make any sense. Why are we trying to figure out the policy benefits of constitutional violations? That's like, what is constantly running through my head when I'm reading this shit.
17:36 Michael Liroff? And, and she has it backwards. I'm sorry, it's so crazy. Like, yeah, the stats tell you that the costs of excluding this evidence are low because 98% of people voluntarily deport anyway. So we're talking about the thinnest slice of arrests even potentially having this impact to deportation proceeding. But the benefits are actually like, pretty stark because if INS agents know, one, that they can get away with violating the Fourth Amendment without remedy, and two, that most people who they violate the Fourth Amendment
18:21 Michael Liroff? against in order to detain will voluntarily self-deport, they could just go fucking hog wild and they know it and they will.
18:29 Speaker 04 This is an analysis that posits, that starts from the foundational assumption that ensuring people's constitutional rights are not violated is a heavy burden on the government that cops should not actually have to worry themselves with. That it's too hard, that it's too much, that it's extremely burdensome for them to do what they're supposed to do, which is round people up and get them deported. And the stats thing is like so ridiculous. This is supposed to be convincing to me because, you know, nine out of 10, almost 10 out of 10 people like, you know, quote unquote, agree to be deported. Okay, well, take it in criminal cases then. 98% of, of cases end in a plea.
19:14 Speaker 04 So are we just saying the Fourth Amendment doesn't apply then? Police can just violate everybody's Fourth Amendment rights? Because all these cases basically end in a conviction anyway, right? It's just ridiculous. This is so stupid.
19:26 Peter Shamshiri? She's talking about the incentive structures created here, but she only talks about it in one direction.
19:31 Speaker 04 Yeah.
19:31 Peter Shamshiri? She's like, well, I don't think the officers will be deterred.
19:34 Speaker 04 Mm hmm.
19:35 Peter Shamshiri? If we exclude the evidence. It's like, OK, but if you don't exclude the evidence, what have you incentivized them to do?
19:43 Speaker 04 Exactly.
19:43 Peter Shamshiri? Like, piece that together.
19:45 Speaker 04 Yeah, the cost analysis is also only in one direction as well. What about the cost to a society that Fourth Amendment rights are being violated, that people's constitutional rights are routinely being violated? There's a human cost here. This is not in the calculation at all, of course.
20:01 Peter Shamshiri? Right. The last thing she says is that INS has its own internal rules that prevent Fourth Amendment violations, right? Like, it has its own policies and procedures, basically saying, look, we don't need to worry about it because they handle this internally. Now, think about how incoherent this is, OK? She's like, we don't need to address these Fourth Amendment violations because they have their own internal policies and procedures. But first of all, if those policies and procedures worked, there wouldn't be a violation to begin with, right? The fact that there is a violation is an indication that those policies and procedures are insufficient, right? Like, this is like saying, well, you tried.
20:46 Peter Shamshiri? So, like, because they are trying, we're not going to punish them for violating the Constitution. And the other thing here is, like, doesn't the fact that they have internal policies and procedures for not violating the Fourth Amendment sort of indicate that they do believe that evidence will be excluded? Like, they're trying to avoid violating the Constitution to avoid the consequences.
21:08 Speaker 04 Yeah.
21:08 Peter Shamshiri? And now you've said there are no consequences. So what do you think is going to happen to those policies and procedures?
21:13 Speaker 04 Great work all around, team.
21:15 Peter Shamshiri? Right. It's just so baby-brained that it's hard to comprehend. And the whole opinion is, it just sort of trails off like this. And you're like, you're just sort of left being like, what the fuck was that?
21:26 Speaker 04 What? So illogical.
21:29 Michael Liroff? Yeah, you know, the dissent gets in on this point amongst many others, but I think really well, it's by Justice White. And he makes the point that like, not only did INS assume that the exclusionary rule applied, everybody did, like the treatises at the time did, there was Circuit Court of Appeals, you know, precedent saying that it applied, practitioners, you know, immigrant lawyers, everybody thought it applied. And his point is like, you're doing incentives for individual agents. What about systemic? He actually uses the word systemic, which is kind of wild. Systemic incentives for like the agency as
22:09 Michael Liroff? a whole. They developed these procedures you're talking about in that environment, in response to that environment. They're like, oh, the exclusionary rule applies. So we better develop rules to prevent us from violating the Fourth Amendment and having our evidence excluded. Like, that's, he's, he's, he's very good on this. He's very good in general. I think, I mean, grading on a curve because this is, you know, the 80s or whatever, it's very different.
22:40 Peter Shamshiri? It's also like, you're like the Harlem Globetrotters up against this majority opinion. You know what I mean?
22:45 Speaker 04 Yeah. And Justice White is not some like radical left lib anything like, yeah.
22:50 Michael Liroff? No.
22:51 Speaker 04 Yeah. This is a very like practical, quite, like, I would say, like, actually conservative. Just talking about like, the reason why you have the Fourth Amendment and these policies and these things are effective.
23:03 Michael Liroff? Right. So, you know, he makes some good points that we haven't covered yet. I just want to highlight those. You know, he makes the point that in criminal proceedings, the exclusionary rule generally applies to the case in chief, but not to a lot of the collateral proceedings, like, for example, grand jury testimony and things like that, grand jury proceedings. And his point is like, well, look, the deportation proceeding, this is the case in chief. This is the real, this is the thing, right? This isn't a collateral proceeding. If you lose this, you're gone.
23:37 Peter Shamshiri? Right. This is where your freedom is at risk.
23:39 Speaker 04 Yeah.
23:40 Michael Liroff? Right. Exactly. So he's like, I think he
23:45 Michael Liroff? He has a much better telling of what the case law says here, right? Like, why you might do cost benefit to, like, ancillary proceedings to the main criminal trial, but why cost benefit analysis is not appropriate here? He also makes the point that O'Connor brings up alternative remedies and he's like, you know, like suing the government and he's like, look, what the fuck are you talking about?
24:10 Speaker 04 They're deported. What are you talking about?
24:13 Michael Liroff? They're deported. They're what? They're gonna sneak back in to file lawsuit? Like, what, what, what planet are you on? It's. It is the 80s and everything was more genteel back then in the pages of the Supreme Court. But in those standards, this is a pretty brutal dissent, I think.
24:32 Speaker 04 Yeah.
24:33 Michael Liroff? It is a very surgical in the way it just goes through point by point by point. Like Peter mentioned, he explains how she got the remaining in the country law wrong, like literally misstated the law. It's just, it's very good. I was impressed. I was impressed with this.
24:53 Speaker 04 Yeah, it's a pretty solid dissent. This is a five to four decision. The other three justices in dissent, each write separately. These are shorter dissents. Justice Stevens writes, I think, a sentence that says, I joined Justice White's dissent. He has one sort of technical thing where he says, I don't agree with this one thing, but it doesn't matter. Now, justices Brennan and Marshall write separately, each of them, just a couple of paragraphs. They also agree with Justice White, but they're sort of just adding, they're adding one more layer to the analysis. So Justice Brennan says, for example, yeah, I agree, the exclusionary rule applies here, but I actually think the exclusionary rule applies not just because of how effective
25:38 Speaker 04 it is as a deterrent and because we need things like this deterrent even in immigration proceedings, but I believe the exclusionary rule applies because the Fourth Amendment applies in immigration proceedings and the Fourth Amendment requires. Requires the exclusionary rule.
25:56 Peter Shamshiri? Right.
25:56 Speaker 04 So not just this kind of like policy or like value to having the exclusionary rule. Like, should we have it? Should we not? Is it an effective deterrent? Is it not, right? Justice Brennan is saying, no, the Fourth Amendment applies here. These men have Fourth Amendment rights. The Fourth Amendment requires the exclusionary rule to apply.
26:13 Peter Shamshiri? Sort of what we were saying, where it's just like, O'Connor is like, well, we're going to use this analysis where we figure out whether we're going to exclude this evidence by figuring out whether it would like deter officers from doing illegal searches.
26:26 Speaker 04 Yeah.
26:27 Peter Shamshiri? And they're just kind of saying, no, the Fourth Amendment says you can't conduct unreasonable searches and seizures. So the fruits of those are not allowed in court. That like very cut and dry. Very, you know, why are we doing policy shit here? Just very similar to what we were saying.
26:43 Speaker 04 Yeah, he says, quote, "The government of the United States bears an obligation to obey the Fourth Amendment. That obligation is not lifted simply because the law enforcement officers were agents of the Immigration and Naturalization Service, nor because the evidence obtained by those officers was to be used in civil deportation proceedings." Whatever Sandy, you want to do in terms of carving this out and saying this is different and not criminal case and all of that. Brennan says, no, look at who is doing the action. That is the government, right? The government is the one that is restricted by the Fourth Amendment. The government must not violate people's constitutional rights. And so the Fourth Amendment applies here. Sandy, you're doing distinction without a difference. Justice Marshall basically saying the same thing.
27:25 Speaker 04 Again, I think this isn't even two paragraphs, but Marshall emphasizing, just like Brennan does, the quote, "constitutionally mandated" character of the exclusionary rule. He says, "In my view, a sufficient reason for excluding from civil deportation proceedings evidence obtained in violation of the Fourth Amendment is that there is no way to achieve the twin goals of enabling the judiciary to avoid the taint of partnership in official lawlessness and of assuring the people, all potential victims of unlawful government conduct, that the government would not profit from its lawless behavior, thus minimizing the risk of seriously under- Mining popular trusts in government. Again, what do we have the Constitution for?
28:09 Speaker 04 It's to restrict the government. It's to ensure that individuals have rights that are protected when they come in confrontation with government actors. If we just don't have the exclusionary rule, if we just say, well, the Constitution doesn't apply in this huge area of the law where tons of people are affected, right? We really risk causing like mass distrust in the government, right? Knowing that the government is going to use the quote unquote, what he calls like the profit of their violations of the Constitution. They're going to use that against you. This is not a good system.
28:44 Peter Shamshiri? Right. You know, that just made me think, part of Sandra Day O'Connor's argument genuinely seems to be like, this affects so few people, right? The vast majority of immigrants in this situation, self deport. You're only getting a handful of challenges like this. And so it doesn't really matter. And like, even if we apply the exclusionary rule, it's not going to change how officers act, right? But contrast that with like, a case like Citizens United many years later, where again, there's like this First Amendment right that only applies to a very small handful of people, right?
29:24 Peter Shamshiri? Only like really rich people can genuinely partake in the right that was created in Citizens United. Did that matter? Did they like factor that into the analysis? Of course not. No.
29:35 Speaker 04 Right.
29:36 Peter Shamshiri? No, no. Bald eagle crying, you know, like if you, if you attack, you know, any one of these persons' rights, it's an attack on all of us. Just sort of different ways of analyzing the law depending on who is the impacted group.
29:50 Speaker 04 Yeah. And Marshall, you know, flipping that like cost benefit stupid shit analysis, right? On its head. Okay, Sandra Day O'Connor, you're saying this applies in such a small number of cases. No, Marshall is saying this applies to our fucking society. This applies to people that this happens to routinely and people watching this, people seeing how cops act and how the government benefits from violating people's rights. This affects everybody.
30:16 Peter Shamshiri? It literally affects everyone, not in like some abstract way where it affects you psychologically, but like if like warrantless, suspicionless arrests are allowed, then like the average person walking around is at risk of being arrested or interrogated by INS agents. Right. It's what we see now with ICE where citizens are very consistently impacted. Right. It's not just like, oh, we're going to lose trust in the government. It's like, no, like this gives them leeway to abuse the rights of the median person if they so choose.
30:49 Speaker 04 That's right.
30:49 Michael Liroff? Right. Yeah. I think that's why this case is good to talk about, right? Because ICE is the product of, you know, post nine 11 statutes, the creation of DHS and all that. But its culture goes way back and that culture has been created in part, in large part, I would argue, by the Supreme Court and by its attitude of permissiveness towards government malfeasance when it comes to immigration proceedings and when it comes to removal proceedings, deportation, all that stuff, like it's been a consistent constitution doesn't apply or applies at a very discounted rate attitude.
31:34 Michael Liroff? And we've talked about it before. We talked about it in historical cases. We've talked about it with contemporary cases like Trump v Hawaii. But yeah, well, this goes all the way back to the Chinese Exclusion Act and deporting communists during the Red Scare. And this case right here, you know, it's set the stage for the current world we live in. And if we want to build a better one, we need to change more than just, you know, who gets to wear those stupid vests.
32:18 Peter Shamshiri? In some ways, this case is very distinct from the way the modern court analyzes this issue, but it also laid the groundwork very clearly. Like, the conservatives now have this very fleshed out theory of constitutional rights in the immigration context, where they view those rights as sort of intention with the power of the executive branch. The executive branch has broad discretion to regulate immigration as they see fit. And so immigrants' rights give way to that a little bit, right? That's not like a framework you see as much in these older cases, but you can see that the court already views deportation proceedings as existing in a sort of liminal space where there are fewer constitutional protections.
33:03 Speaker 04 They already did the cost benefit analysis for them.
33:05 Peter Shamshiri? Right.
33:06 Speaker 04 They came to the conclusion that immigrants' rights are not as important as the government's power to deport them. And so you see, it's A to B.
33:15 Peter Shamshiri? Right. She's doing the scales of justice where like, a Mexican person weighs nothing. Like, she's like, keeps putting them on the scale and nothing changes.
33:23 Michael Liroff? Right.
33:24 Speaker 04 Yeah.
33:24 Peter Shamshiri? At this stage, in 1984, the conservatives don't have a real theory to rely on, so they're just sort of like making things up as they go. And so, in a way, it's like right-wing jurisprudence in microcosm, right? They come up with a political position first, and then they start backfilling the justification. And so now, in 2025, 40-something years later, they have a sort of foundation to rest all of this upon. But at the time, in the 80s, they're just sort of like spitballing.
33:53 Speaker 04 Yeah, yeah. What if we did a law and economics kind of thing for this, you know?
33:57 Peter Shamshiri? Like, some shit about deterrence, do a little bit of cost benefit. You're just talking out your ass the whole time, you know?
34:04 Michael Liroff? Well, one thing I was thinking about reading this opinion is that, like... You see the, the shit the current Supreme Court is churning out and you're like, God, these guys are, are just, they're idiots. They're just not right. They're not playing a particularly nuanced game and
34:21 Speaker 04 Like they're, they're obviously not right on the law. They're not right. Yeah.
34:24 Michael Liroff? Yeah. But, but their rationales are just so transparent and hamfisted and they're just not good at even putting up a facade of legality and impartiality on this. And it's easy to be like, maybe reminisce about the old days when the conservatives were so sharp and, and then you read an opinion like this and you're like, no, they were fucking dumb back then.
34:49 Speaker 04 This is idiotic.
34:50 Peter Shamshiri? Real fucking dumb.
34:51 Michael Liroff? Yeah.
34:54 Michael Liroff? This is results driven and because it's results driven, it is ridiculously stupid.
35:02 Speaker 04 It's not convincing at all.
35:04 Michael Liroff? It's not convincing. It's riddled with errors, you know, and it's destroyed by a dissent that obviously does not carry the day or even give them pause, right? As they charge forward.
35:17 Peter Shamshiri? I mean, the dissent is literally like, hey, you got this thing in the law wrong. And they're like, whatever. Leave it in. Leave it in. It's interesting. They didn't, they didn't have like a network of conservative law professors to create theories, right? And then like, almost like compete with one another. Like who's got the best theory to run up to the Supreme Court? And so they're winging it and it shows. It's embarrassing.
35:42 Michael Liroff? Yeah.
35:42 Peter Shamshiri? There's no sort of marketplace of ideas behind the scenes here. It's just like, Sandra Day O'Connor is like, here's my best argument. And it's like, oh my God.
35:53 Michael Liroff? Yeah. And like, you know, I, I think it's important to note also that, so the court has
36:01 Michael Liroff? Gone to great lengths to make sure that the Constitution is only very weakly applied, if at all, in immigration courts. You should also be aware that immigration courts are not courts the way you think of them.
36:14 Speaker 04 Yeah.
36:14 Michael Liroff? If you're a layperson. They're not even situated within the judicial branch. They are part of the executive branch.
36:24 Speaker 04 Yeah.
36:24 Michael Liroff? They are a function of the president and the body of government that he or she governs.
36:32 Peter Shamshiri? Yeah.
36:32 Michael Liroff? And they're appointed without Senate confirmation. They don't have to have like, you know, crazy lawyer credentials you would expect for an Article III judge.
36:45 Peter Shamshiri? No, a lot of them, and I know this is problematic, but a lot of them are just dumb hicks and there's no way around it. Every now and then at our live shows, we'll do a bit where we ask people to submit their personal disputes to us and we resolve them. What we're doing is closer to an actual court than what immigration.
37:05 Speaker 04 At a five-four live show.
37:07 Michael Liroff? Our Judge Judy.
37:09 Speaker 04 Yeah.
37:09 Michael Liroff? Our Judge Judy bit. Yeah. So, yeah, it's maybe an area where you would want to actually make sure the Constitution applies, right? Because there are already so many fewer protections, so many fewer statutory protections, and there is frankly just a lower quality of, you know, official overseeing it and ensuring fairness or not, you know? And I think, taken together, what you see is that the goal is not to ensure fairness, right? The goal is to ensure efficiency in removing people from the country.
37:47 Peter Shamshiri? Right. And a lot of immigration judges are ideologically on board with that project.
37:53 Speaker 04 That's right.
37:54 Peter Shamshiri? They don't view their role as like, oh, I'm gonna oversee this as fairly as I possibly can. They view their role as like, helping the federal government get immigrants out of this country.
38:05 Speaker 04 Yeah.
38:05 Michael Liroff? Right.
38:05 Speaker 04 Yeah, that's exactly right. And so, you know, carving out immigration proceedings. As this Wild West Constitution free zone, like it leads to more than just the Fourth Amendment exclusionary rule not applying in deportation proceedings. Right. So I talked to two of my friends who are immigration attorneys today. Hey, off the top of your head, what are like the quote unquote rights that say people in criminal proceedings have that are not insured or just don't apply in immigration proceedings? And the list, just off the top of their head, right? I can go through some things. In immigration proceedings, you do not have a right to an attorney provided by the state.
38:49 Speaker 04 In fact, in 2019, 77% of cases in immigration court, the immigrant in those proceedings did not have legal representation. The rules of evidence do not apply in immigration proceedings. Okay. Why does that matter? Well, say you are accused, the evidence against you that you are undocumented is hearsay. Well, doesn't matter. Rules of evidence don't apply in immigration proceedings.
39:13 Peter Shamshiri? Your Honor, I've been hearing that this guy is undocumented.
39:19 Speaker 04 Your Honor.
39:20 Peter Shamshiri? The judge is like, hmm, what do you have to say for yourself?
39:24 Speaker 04 You can be ordered deported in absentia, meaning you're not there, even if you're a minor. Right? In criminal proceedings, you can't be tried in absentia. They have to have a criminal defendant. You have to be there to hear the accusations against you and have a right to confront and fight those accusations. In immigration court, no.
39:46 Peter Shamshiri? Confrontation clause.
39:47 Speaker 04 That's right.
39:48 Peter Shamshiri? Relatively important in criminal law.
39:50 Speaker 04 Yeah, yeah, not in immigration. You don't have it. No speedy trial right. This is a constitutional right that in criminal cases, you, the criminal defendant has the right to assert their right to a speedy trial. You cannot just be, you know, indefinitely accused of something with a criminal case pending forever and ever. Nope.
40:07 Peter Shamshiri? Your Honor, can we speed this up? He's like, no, we have 18 other witnesses that are going to describe hearsay against you.
40:15 Michael Liroff? We're gonna hear all of them for weeks on end. Some of them aren't available till next year. So good luck.
40:21 Speaker 04 Right. And to be real, we're talking about people in ICE detention right now who have been there for months or years are looking at many more months and years in ICE detention because they do not have the right to a speedy trial. They do not have due process rights for these proceedings to actually happen for them in a timely fashion.
40:39 Peter Shamshiri? To flesh that out a little, Ree, correct me if I'm wrong, but if you were in jail awaiting trial for a long enough period of time, you could file a motion based on your constitutional right to a speedy trial, basically to say, hey, like, do it or don't.
40:55 Speaker 04 Yeah, in most places. Yeah, in most places. No Miranda right, no discovery rights, right? Which is to say, in the criminal context, you have the right to see what the evidence is against you? Not in immigration court.
41:08 Peter Shamshiri? This is, this is the most kangaroo court shit of all time. The judge is just holding up hearsay to him. He's not even showing you. He's just looking at it. He's like, I don't like what I'm seeing here. Get out of here.
41:20 Speaker 04 And the Miranda stuff, you don't have the right to be informed that you have rights, that you don't have to talk, that you don't have to testify, that you have the right to remain silent. These things do not apply in immigration court.
41:32 Peter Shamshiri? I feel like I've heard all of this in isolation, but never just rattled off one after another. It's preposterous.
41:36 Speaker 04 There are actually many others that my friends were talking about earlier today. But last one I'll mention is that your release from ICE detention is not guaranteed even after winning some forms of asylum. We are talking about fundamental individual rights here. You have won your case. You have been granted asylum in the United States. Your release from ICE detention is not guaranteed. Okay, so we're this Wild West, like I said, that has been created, where immigration proceedings and people's very rights in immigration court are so different, which
42:15 Speaker 04 is to say, like, actually treated as a joke than in anywhere else in our laws. You know, I think the takeaway for this episode is to see how the Supreme Court contributed to that system being created.
42:31 Michael Liroff? Yeah, but, but at least it'll never be citizens and lawful permanent residents who are subject to this terrible system of lawlessness.
42:41 Michael Liroff? So better not do anything about it for 50 years.
42:44 Speaker 04 Yeah.
42:45 Michael Liroff? See what happens.
42:46 Speaker 04 Mm hmm.
42:48 Peter Shamshiri? And so, you know, I think it might be worth just briefly contemplating what's happening right now in the shadow of this case, because what you're seeing going on right now is that there's essentially a policy in practice at ICE of mass arrests without probable cause. That sort of thing would very likely not be feasible if everyone had a robust Fourth Amendment claim.
43:18 Speaker 04 Yeah, without this case.
43:19 Peter Shamshiri? If you could say, hey, my, they didn't have PC for my arrest, so I can't be deported. The modern ICE regime collapses. And so, you know, and you might think, well, that sounds like a little too simple. Maybe it is, you know, maybe, maybe there are sort of other avenues they could take or whatever. But this is an outgrowth of a regime that like limited rights for immigrants for so long in so many different ways that when an authoritarian came along and said, I want to use this to just conduct a mass arrest and throw people out of this country with as little due process as possible. All the tools were there.
44:00 Speaker 04 Yeah, it was right.
44:01 Peter Shamshiri? All the mechanisms were there.
44:01 Speaker 04 It was so ripe. Yeah. Yeah, I keep thinking about, you know, we've, we've mentioned it a couple of times already. These arrests as, as to these two men, they happen in the late 1970s. This ruling, the Supreme Court case is handed down in 1984. This is a time, you know, take a step back. They were arrested by INS agents because at the time, we didn't even have ICE. ICE had not been created. DHS, the Department of Homeland Security, had not been created. These are institutional creations of the federal government post nine 11, you know,
44:37 Speaker 04 2002, 2003, 2004 kind of time. And so there is a chance here that the Supreme Court absolutely whiffs on. And look, not by some mistake, right? Like our Our whole thesis of the podcast is that they did it on purpose. But you do think about the alternative reality, the alternative 2025. We could be in had the Supreme Court in the late seventies, the early eighties. I mean, shit, all the way back to the founding, right? Taken seriously, a different cost benefit fucking evaluation, which is the cost to actual human beings when people's rights that are defined in the constitution are violated.
45:21 Speaker 04 You know, and you just start to think like, why the fuck do we have a constitution? Why do we have laws? Why would INS even at this time have policies to deter officers from violating people's constitutional rights? Is this because human beings like deserve a certain level of treatment? Is it because we recognize the inherent dignity, agency, autonomy, liberties of every person? Or do we have laws? Do we have a constitution? You know, do we have Supreme Court adjudication to just green light whatever the fuck?
46:01 Speaker 04 And the constitution is kind of like this annoying thing that you have to do illogical and incoherent analysis to just like blow your nose on it, right? Like to get it out of the way, you know, is like, you wonder about like the purpose of adjudication at all. Like, and how, and how the justices actually view their work? And over and over and over again, no matter what you're taught in law school, no matter what anybody says about how the Supreme Court makes their choices over and over and over again. Michael said it, we've talked about a ton of immigration cases over the course of American history. Every single case, it's proven in practice.
46:43 Speaker 04 Read what they're fucking saying about the constitution, their own analysis. They do not view these rights as something that are actually inherent to every single person. Certainly not the underclass that they are taking part in creating, right? Or something that they view themselves or their role as something to protect against a federal government that, for example, today in 2025, can now just absolutely run rampant. No, in fact, every single one of these decisions gave a Trump administration in 2025 all of the tools that it needed to do what it's doing right now. And so, you know, I wonder,
47:24 Speaker 04 you wonder, like, what is the, what's the Constitution fucking mean to them, you know? And it's pretty sick. It's pretty gross.
47:31 Michael Liroff? Yeah. Which is just another way of saying that they are really indistinguishable from the little troll men in the Nazi group chat.
47:42 Speaker 04 There you go.
47:43 Peter Shamshiri? Yeah.
47:48 Peter Shamshiri? Next week, premium episode, we're going to be talking a bit about a recent federal judge revolt of sorts. A bunch of federal judges going to the press about their distaste for the Supreme Court and the Supreme Court's attempts to do damage control. Follow us on social media at 54pod, subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium episodes, ad-free episodes, special events, our Slack, all sorts of shit. 54pod.com/merch for merch, for really good merch.
48:31 Speaker 04 Go check out the merch.
48:32 Peter Shamshiri? It's good stuff. Go look at the merch, guys. People are saying the best merch in the game.
48:37 Michael Liroff? That's right.
48:38 Peter Shamshiri? We'll see you next week.
48:39 Michael Liroff? Bye, everybody.
48:40 Speaker 04 Bye.
48:49 Michael Liroff? Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks, Det Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/54pod.
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