The Return of Con Law

Announcing The 99% Invisible Breakdown: The Constitution and the return of What Trump Can Teach Us About Con Law.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Roman Mars?

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• 0:43Roman Mars?

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• 1:26Roman Mars?

  status it deserves at indeed.com/podcast. That's indeed.com/podcast. Terms and conditions apply. Hiring now, then this is a job for Indeed-sponsored jobs. This is 99% Invisible. I'm Roman Mars. We heard you, the chorus of voices, all asking, "Where is Con Law? Where is Elizabeth Jo?" To guide us through this madness, we need it now more than ever. Well, here it is. We're bringing the show back with a special, extra-long episode, plus, we have an announcement about how the series is going to grow and develop from here. It is very exciting. So let's get into it.

• 2:10Roman Mars?

  Oh my goodness, it is Monday, June 2 at 10 a.m. as we record this. What are we going to be talking about today?

• 2:16Speaker 01

  Well, I thought we'd go back in time, and we would start with zoot suits.

• 2:23Speaker 01

  Are you familiar with the zoot suit, Roman?

• 2:25Roman Mars?

  Very familiar. I love a good zoot suit.

• 2:27Speaker 01

  It's that big suit jacket with wide lapels, huge shoulder pads, high-waisted, baggy pants that taper toward the bottom. And if you remember the movie Who Framed Roger Rabbit from the 1980s, the Toon Patrol weasels all wore zoot suits. Those were the bad guys.

• 2:44Speaker 02

  Look, Valiant, we got a reliable tip-off. The rabbit was here and was corrugated by several others.

• 2:50Speaker 01

  And the setting of Roger Rabbit takes us to the right period of time, the 1940s. Now, after the United States enters World War II in December of 1941, millions of young men are committed to military service. And on February 19th, 1942, President Roosevelt issued Executive Order 9066. And that's the infamous order that placed people of Japanese ancestry, including US citizens, into internment camps. Now, both of these wartime actions resulted in a huge labor shortage, especially in agriculture, because so many Japanese-Americans had worked on farms. And one major response the federal government provides

• 3:33Speaker 01

  is to recruit foreign workers from Mexico. And in 1942, in August, the United States signed an agreement with Mexico to create the Mexican Farm Labor Program Agreement. This would formally allow Mexicans to enter the United States to work on a temporary basis. Now, this arrangement is better known as the Bracero Program. Bracero literally means a person who works with their arms, like farmwork. And the program would eventually bring millions of Mexican nationals to the United States because it was renewed multiple times. Now, in Los Angeles, this sudden influx of Mexican nationals added to even more problems, and those were the racial tensions brewing in the city.

• 4:17Speaker 01

  At the time, Mexican-Americans were the largest racial minority in Los Angeles. And during World War II, Los Angeles became a major center for military production jobs, and a very large number of military service members are stationed there, too. And that draws workers from everywhere and from every background: whites, African-Americans, and Mexican-Americans. And most of the service members stationed in Los Angeles are white. So you have wartime patriotism, suspicions about not just Japanese-Americans, but all non-whites, and zoot suits. And that's where these suits come in. Mexican-American teenagers in Southern California had started to adopt a distinct

• 4:59Speaker 01

  look: dangling watch chains, pork pie hats, duck-tail hairstyles, and zoot suits. Now, the zoot suit seems pretty tame, right? By 2025 standards, it's actually pretty nice. But in the 1940s, the zoot suit gets a really bad rap. In 1942, the War Production Board issued regulations to allow only streamlined suits to save fabric. A lot of people, including the mostly-white service members in Los Angeles, see the zoot suit as quite literally unpatriotic. It's wasteful, it's illegal, and they called zoot suiters "draft dodgers" for not joining the military during the war. Now, some young Mexican-Americans in L.A. also formed gangs and adopted zoot suits as

• 5:43Speaker 01

  their distinctive style, part of what they called the Pachuco subculture. That's how the zoot suit became associated with Mexican-American gangs, including what's known as the 38th Street Gang. Local L.A. papers announced in the summer of 1942 that the city was experiencing a "crime wave" by Pachuco zoot suit gangsters. And it's against all of this backdrop that on August 2, 1942, a 22-year-old Mexican-American man named Jose Diaz was found dead by a reservoir called Sleepy Lagoon just outside of L.A.

• 6:20Speaker 01

  Diaz had attended a party the night before where a fight had broken out by a group crashing the party. Over the next few days, the LAPD rounded up more than 600 people, mostly Mexican-Americans. A grand jury eventually indicted 24 Mexican-American men between the ages of 16 and 22. They're described throughout the trial as members of the 38th Street Gang. Most of them were tried together in a single trial, and 17 of them were convicted of crimes ranging from assault to first-degree murder. That resulted in what would be called the Sleepy Lagoon Trial of 1942. The evidence was pretty flimsy, and the legal proceedings were flawed.

• 7:02Speaker 01

  Over the 13-week trial, the prosecution introduced a number of experts who gave some pretty racist testimony. An LA County Sheriff's captain named Edward Ayers filed a statement that Mexicans were probably inherently violent, maybe because, in his view, most Mexicans were Indian and their Aztec ancestry, which involves human sacrifice, probably gave them a propensity to violence. Oh my god. The trial judge also refused to let the defendants cut their long hair or to change their clothes during the first month of trial. And so, the LA Times called the defendants "the zoot-suit slayers." And the trial today is considered to have been radically unfair.

• 7:43Speaker 01

  In 1944, a California appeals court reversed the convictions, finding that the defendants had not received a fair trial. The Sleepy Lagoon case is considered just a precursor to the zoot-suit riots in the summer of 1943, where white civilians and servicemen roamed the streets of LA looking for zoot-suiters. And it was during those terrible days that Mexican-Americans, and then African-Americans and Filipino-Americans were beaten and stripped of their zoot-suits for weeks. Local newspapers hailed the fight against what they called "foreign criminals." And the violence finally ended when military officials banned servicemen from traveling to LA who were looking for trouble.

• 8:23Speaker 01

  The LA City Council even voted to approve a resolution to ban zoot-suits. So what do claims to wartime authority, supposed symbols of gang culture, and racism have to do with what's going on now in 2025? I think I have an idea.

• 8:42Speaker 01

  Time to find out.

• 8:43Roman Mars?

  Let's do it.

• 8:53Roman Mars?

  This is What Trump Can Teach Us About Con Law. We're not only back, we're going back to the original name. An ongoing series of regular release where we look at what zoot suits and tattoos have in common with Trump's perverted interpretation of the Alien Enemies Act and use it to examine our Constitution like we never have before. Our music is from Doom Tree Records. Our professor and neighbor is Elizabeth Jo and I'm your fellow student and host, Roman Mars. Oh, and stay tuned to the end of the show for a special announcement that you really do not want to miss.

• 9:26Roman Mars?

  So from that prologue, I assume we're going to talk about the Alien Enemies Act.

• 9:30Speaker 01

  Yeah, that's where we're going. So let's remind people about what the Act does, right? The Alien Enemies Act dates back to the 18th century when Congress passes it and a group of other laws known as the Alien and Sedition Acts. Only the Alien Enemies Act remains good law today. So Roman, maybe you can read the important part of that law again.

• 9:51Roman Mars?

  Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, all natives, citizens, denizens, or subjects of the hostile nation or government shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

• 10:18Speaker 01

  That's a mouthful, right? So in plain English, what the Act does is to give the President of the United States the power to detain or deport aliens, which is really just the federal law term for non-citizens.

• 10:32Roman Mars?

  Okay.

• 10:32Speaker 01

  And so the Act refers to all citizens, denizens, or subjects of a hostile nation or government. So under the Alien Enemies Act, it doesn't matter whether you are a non-citizen lawfully within the United States or not, and the Act itself does not guarantee that a person that the President deems an enemy alien will receive notice or a hearing before they're detained or even deported. And the government doesn't even need to satisfy any standard of proof under the act that you are, in fact, an enemy alien. So the entire idea behind the act is to give the President of the United States the authority to expel people who are dangerous to national interests during the war.

• 11:13Speaker 01

  But the intention of the Alien Enemies Act is not as a tool of mass deportation. We have a huge and complex set of federal immigration laws, primarily under the Immigration and Nationality Act, that spell out how undocumented people in the United States are to be treated, what legal recourse they have, and what the government's rights and responsibilities are. Now, you and I both talked about the Alien Enemies Act at the end of last year because Trump, as a presidential candidate, kept promising to rely on the Alien Enemies Act as a way to begin mass deportations of what he'd usually refer to as illegal criminal migrants. Now, remember, there was a big part of his platform, right, for the 2024 election where he kept saying

• 11:57Speaker 01

  there's this huge migrant crime wave that he alone would stop. And then we talked about it because the act seemed like an interesting theoretical problem. You know, Trump couldn't possibly invoke the Alien Enemies Act, right? That was just like a crazy threat. There was no way he was gonna do it, right?

• 12:16Roman Mars?

  Yeah, I mean, or like, I believed in his belief to make that threat and that horrible people around him would want to do that, but that there was something in the Constitution that would stop him from doing these things.

• 12:28Speaker 01

  Yeah, well, he went ahead and did it. There were so many different, crazy, outrageous, and sometimes clearly illegal things that have happened during the past five months, plus hundreds of lawsuits at this point, that it's sort of hard to keep up with what's happened. But I think it's important here for us to at least focus on what's happened with this mass deportation scheme, all right?

• 12:52Roman Mars?

  Yeah.

• 12:53Speaker 01

  So as soon as Trump began his second term, he issued an enormous number of executive orders. Remember, he's not a new president anymore, and this time, his administration is prepared to act as soon as he takes office. Now, keep in mind that when a president issues an executive order, they are not the same as Congress passing a law. They don't have the same legal status.

• 13:16Roman Mars?

  Right.

• 13:16Speaker 01

  So these executive orders that we're gonna talk about focus on immigration. Some of these executive orders rescind or cancel Biden-era policies. One is a Biden-era policy that says ICE should focus on immigration enforcement on people who pose a public safety threat. In other words, if they're not posing a public safety threat, don't try to find and arrest these people.

• 13:38Speaker 03

  Right.

• 13:38Speaker 01

  That was a Biden policy. Another Biden immigration policy is no enforcement in what are called "sensitive" places, like churches, schools, hospitals. And Trump gets rid of that, too. So the result is that immigration enforcement now is something that can happen to any undocumented person anywhere. It doesn't matter whether you've been here for a week, or a decade, or almost your whole life. It doesn't matter whether you have a criminal record or not. It doesn't matter whether you're taking your kid to school or going to the doctor. Anybody who is undocumented is now a potential target for arrest and detention.

• 14:16Speaker 03

  Right.

• 14:17Speaker 01

  So on January 20th, remember, this is the first day of Trump's second term, Trump issues a proclamation that the United States is experiencing an invasion by illegal aliens. The word "invasion" is important, and it's deliberate here.

• 14:31Speaker 03

  Right.

• 14:32Speaker 01

  And then ICE agents begin a surge of raids and large-scale arrests around the country. The number of people detained by ICE appears to have gone up dramatically since Trump took office, including the percentage of people with no criminal history. And this is all happening because the Trump administration reportedly has a goal of deporting a million people within a year. That is a huge number, larger than has ever been accomplished by any other president in any other term. But when you have such a huge number, that means that there is pressure on the Department of Homeland Security to find people, any people, who could be deported. And Stephen Miller recently said on Fox that the goal is to complete 3,000 ICE arrests every single day.

• 15:19Speaker 01

  So that's really a quota.

• 15:20Roman Mars?

  Yeah.

• 15:21Speaker 01

  So to put this in terms that are easy to understand, you know, imagine like your local police department. The police chief says, look, we have a new quota and every officer has to issue 10 tickets on each shift. Well, you know, if you're going to do that and you've got to make your quota, you're going to find people to give tickets to. Whether it's like, you know, it could be totally indiscriminate. It could be abusive. It doesn't matter. You're just going to hit that quota.

• 15:45Roman Mars?

  That's right.

• 15:46Speaker 01

  And that's why you're seeing videos of ICE raids of restaurant workers, construction workers, people who aren't really doing anything wrong, but they're really easy to find because they're in plain sight, living their lives.

• 15:56Roman Mars?

  Mm hmm.

• 15:57Speaker 01

  Right? Now, some of these people who are either arrested by ICE or questioned during applications for asylum, so legitimately seeking asylum, they receive special attention. According to ICE, that was because of their tattoos and their clothing that signaled gang membership. Now, even if we accept that some tattoos are in fact linked to gang membership and even violent gangs, a lot of cases are not like that. There's the instance of a man who was detained by ICE with a tattoo of a crown over a soccer ball. He was a former professional soccer player.

• 16:32Roman Mars?

  Yeah.

• 16:32Speaker 01

  That's why he has that tattoo.

• 16:33Roman Mars?

  Yeah.

• 16:34Speaker 01

  The clock-shaped tattoo of a man who was celebrating his child's birthday. Another man's tattoos that say mom and dad. And then maybe the absolute worst, a man who was deported for his tattoo, which was a rainbow-colored ribbon. That's the symbol of autism awareness for his brother.

• 16:53Roman Mars?

  Wow.

• 16:54Speaker 01

  So these men were Venezuelan nationals. And in March, the Department of Homeland Security started to move these particular detained men from ICE centers around the country and sending most of them to a detention facility in South Texas. And many of the lawyers for these detained individuals thought something was about to happen, and they were right. On March 14th, Trump signed Proclamation 10903. And it says that Tren de Aragua is a designated foreign terrorist organization with thousands of members, many of whom have unlawfully infiltrated the United States. Okay, but here's the important part. Roman, why don't you read it?

• 17:37Roman Mars?

  So, okay, so this is quoting Trump.

• 17:39Speaker 01

  Right.

• 17:40Roman Mars?

  "I find and declare that TDA is perpetuating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TDA is undertaking hostile actions and conducting irregular warfare against the territory of the United States, both directly and at the direction of the Maduro regime in Venezuela."

• 18:01Speaker 01

  Now, the proclamation goes on to say that all Venezuelan citizens 14 years of age or older, who are members of TDA and are not actually naturalized or lawful permanent residents of the United States, are liable to be apprehended, restrained, secured, and removed as alien enemies. What this means is that the Trump administration is claiming the power to remove Venezuelan non-citizens if they claim that the people they have detained in their custody are members of the TDA gang. So, Roman, let's play. What do you think sounds weird about this invocation of the Alien Enemies Act?

• 18:38Roman Mars?

  Well, I don't know. It sounds weird. It sounds like, you know, Trump's sort of natural language. But the invasion or predatory incursion seems like a sort of like somewhat unnatural, but you can tell completely lifted straight from the Alien Enemies Act.

• 18:54Speaker 01

  Right. And also, the target of the act is TDA, which is a gang. And the last time I checked, if you look at the Alien Enemies Act, this is about countries that we're at war with.

• 19:06Roman Mars?

  Right.

• 19:07Speaker 01

  And we are not at war with Venezuela.

• 19:10Roman Mars?

  Right, right. I mean, there's lots of things that are missing. The things that are shared are the invasion and predatory incursion sort of language. But obviously, declared war between the United States, that didn't happen. And then any foreign nation or government, and TDA is neither of those things.

• 19:25Speaker 01

  Yeah. So, the logic here is something like, yes, sure, this gang is not a foreign nation, but they're somehow so intertwined with the government of Venezuela, which nobody really believes, that they are treated as if they are a foreign nation. Now, there's clearly no war that Congress has declared here. And so Trump is relying on the other provision of the Alien Enemies Act to say, "Well, this gang has engaged in a predatory incursion." Which, most of the time, traditionally, we have interpreted as saying, "Well, that's a military campaign against the United States." And there's no sense that there is some concerted military invasion by this particular gang. Now, definitely, the gang exists. But somehow, the Trump administration has decided to shoehorn this gang's activities

• 20:09Speaker 01

  into a wartime act. And that's really striking, because before 2025, the Alien Enemies Act has been used by presidents only three times in the past: the War of 1812, World War I, and World War II. So in 2025, Trump issues a proclamation under the Alien Enemies Act, and then starts to act very, very quickly. So quickly, in fact, that the timeline of what happened is actually kind of hard to keep up with. But, you ready?

• 20:39Roman Mars?

  Yeah, shoot.

• 20:40Speaker 01

  So, there are already several lawsuits over this use of the Alien Enemies Act. So let's just focus on a few, right? One is a lawsuit filed as a class action, arguing that the Alien Enemies Act does not allow the Trump administration to detain and deport non-citizens this way. The ACLU filed the lawsuit the day after Trump signed the proclamation, on Saturday, March 15. And they sue on behalf of five Venezuelan men who are already in ICE detention. The administration had, at this point, more than 200 people that it was trying to forcibly expel from the country using the Alien Enemies Act. Now, the judge in this case ordered the Trump administration to stop.

• 21:23Speaker 01

  "Don't remove these people from the country, subject to the Alien Enemies Act." But, here's what the administration does. They delay the deportation of the five people named in the lawsuit. But then they continue with three flights full of people that they have in custody. So here's the crazy timeline. Two planes leave the United States between 5:00 and 6:00 p.m. on March 16, from a Texas detention facility. On 6:48 PM, the very same day, the judge tells the government, "Turn the planes around." He tells the government's lawyer, "You shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air

• 22:07Speaker 01

  needs to be returned to the United States." They do not turn around. And in fact, after this happens, the government flies a third plane from Texas at 7:36 PM the same day. And the reason why these lawyers are rushing the court? Because the Trump administration is flying these detainees to SEACOT.

• 22:26Roman Mars?

  And what is SEACOT?

• 22:27Speaker 01

  Well, SEACOT is also known as the Terrorism Confinement Center. It's a giant mega-prison outside of the capital of El Salvador. Now, Nayib Bukele is the authoritarian president of El Salvador. I mean, by his own admission, he calls himself a really cool dictator. So he has suspended normal due process rights in the country by declaring an ongoing state of emergency. And Bukele has focused on cracking down on criminal gangs in El Salvador by putting them into this scary, gigantic prison where tens of thousands of inmates are locked up basically all day long, 23 hours a day, and are basically kept in extreme isolation. The pictures that have been posted are really horrific. There are dozens of men

• 23:12Speaker 01

  sitting on quadruple bunks, no mattresses, people in chains. And human rights organizations have said that the conditions inside are terrible and the treatment of inmates is abusive. But it's to SEACOT that the Trump administration has chosen to send people they claim are alien enemies. And on March 16th, Carolyn Levitt, the White House Press Secretary, she acknowledged that the Trump administration is paying El Salvador $6 million to detain people. So El Salvador is acting like a prison subcontractor for the Trump administration.

• 23:45Roman Mars?

  Yeah, but, you know, didn't the judge tell the government specifically not to do this?

• 23:50Speaker 01

  Yeah, and that's where things take a really scary turn. The Trump administration did not turn the planes around after the judge ordered them to do so. And in fact, as I just mentioned, they threw a third plane after the judge posted this official order. Now, the very next day, that's on March 17th, Tom Homan, that's Trump's borders czar, he goes on Fox News. Here's what Homan says. "I don't care what judges think. The plane is already over international waters with a plane full of terrorists and significant public safety threats." So, think about that. If Homan's right, it's the being over international waters that matters? If the government can get non-citizens, or maybe anybody, over into international waters, then your claims are invalid.

• 24:34Speaker 01

  No court can help you, period. That's a terrifying argument, that all the government has to do is get you beyond the geographic scope of the United States and you're toast.

• 24:44Roman Mars?

  Yeah, that is terrifying to me. I mean, it seems like it's reminiscent of the rendition sort of stuff that happened, you know, 20 something years ago.

• 24:51Speaker 01

  Right, I mean, it's absolutely terrifying. So, in court, the Trump administration then appeals this court order, the one that they didn't follow, that halts any deportations under the Alien Enemies Act. And this eventually gets to the Supreme Court's emergency docket. And on April 7th, the Supreme Court issues a short opinion that does two things. The first one looks like a win for the Trump administration. Basically, "Well, plaintiffs, you filed in the wrong court. You should bring the case where you're being held, not in Washington DC." So, maybe that seems like a loss. But the other thing the Supreme Court says is that the government does have to give people detained under the Alien Enemies Act some notice and a reasonable chance to challenge their detention in court.

• 25:35Speaker 01

  In other words, the Supreme Court acknowledges that these non-citizens do have constitutional due process rights. And so, the court's intervention here does kind of slow down the case for the plaintiffs, which is called JGG versus Trump. But it's not a complete Trump victory either. The court's not going to allow the government to do these middle-of-the-night deportations. Now, that's just one lawsuit. Here's the other significant one. A second lawsuit is filed by two detainees whom the government claims are members of TDA. It's called ARP versus Trump, not the American Association of the United Nations. Different, different acronym.

• 26:12Roman Mars?

  I mean, given the amount of mail I get from the ARP, I'm ready to classify them as a terrorist organization.

• 26:18Speaker 01

  Yeah, same here. They're also filing on behalf of all detainees in the same situation, right? So like the first case, these plaintiffs file what's called a habeas petition. That's a legal claim that they're being held unlawfully by the government. So at first, they ask a federal court to stop the government from deporting them. On April 18th, the detainees in the ARP case file an emergency motion. They argue that the federal government is literally about to deport them under the Alien Enemies Act. And they've given them notices about their imminent deportation in English, which the detainees cannot read, it's not their first language, and that the deportation is about to happen in the next 24 hours. Now, remember, the Supreme Court had already said in the other case, more than a week

• 27:02Speaker 01

  before this emergency request, that the government has to provide these detained individuals with some opportunity to challenge their detention.

• 27:09Roman Mars?

  Yeah.

• 27:10Speaker 01

  And yet, the government's still not really listening. And this helps you understand why the Supreme Court does not wait so long this time. On Saturday, April 19th, the Supreme Court issues a stay or a halt at 12:52 a.m. to the government, ordering the government not to deport these plaintiffs while their lawsuit is pending.

• 27:31Roman Mars?

  And so, describe to me, how unusual is that for them to issue an order at 12:52 a.m.? Because that strikes me as extremely unusual.

• 27:39Speaker 01

  Yeah, it is totally unpre-- I mean, I wouldn't say it's totally unprecedented, but it's very, very unusual. Remember that in the first case, the Supreme Court had already said to the Trump administration, you can't just kidnap these non-citizens and then send them to this foreign mega-prison.

• 27:53Roman Mars?

  Yeah.

• 27:54Speaker 01

  And yet, the government is apparently in the process of moving the detainees in this second case from a detention center to the airport in violation of the limits the Supreme Court had already issued in the first case on April 7th. So the-- this case bounces up and down the court system for different procedural reasons and goes back to the Supreme Court. On May 16th, the Supreme Court takes another look at the case and basically says, No, really, we really mean it. You cannot put these detainees on planes while their cases are pending. If the government wants to deport these detainees, the government has to provide them with notice and in a way that actually allows them to challenge their detention in court. It's definitely not good enough to wave a piece of paper in front of a detainee in

• 28:39Speaker 01

  a language that they can't read, because it's not their first language, as they board the plane to El Salvador. And here, again, the court makes very clear that even non-citizens are entitled to constitutionally adequate procedures before they're removed from the country. And so this part's important, because even though the Alien Enemies Act itself, you know, that 18th-century law, doesn't state that you should have some way of challenging the government's claims against you, the Supreme Court is saying, "Look, that doesn't matter, because we have this separate set of constitutional traditions that we've developed over the decades, saying that if you have what's called a liberty interest, your ability to, you know, be in the United States, if you have the right to be there, that we should have,

• 29:22Speaker 01

  or we should grant you some regular procedures, even to non-citizens, before the government removes you from the country." And we are reemphasizing that these detainees have those rights. And that is a principle that's been recognized by the court for more than 100 years, that if you're going to just simply deport someone, you can't just deport them, they have a right to some kind of procedure. So there's another interesting part in this decision in the AARP case. The Supreme Court seems to be squarely questioning, finally, the good faith of the Trump administration. The Supreme Court points out the absurdity of the government's position, which is basically, "Sure, we'll keep these people here on April 18th, because we'll have a nighttime court

• 30:07Speaker 01

  hearing, but that's enough process, and we'll put them on the plane the next day."

• 30:12Speaker 01

  And it's also the government's position. The Supreme Court points out that once they're out of the United States, the government no longer has any custody over them. And so the court can't order the government to do anything. That's the Tom Homan, you know, you're in international waters argument. That position is really shocking for the government to take in front of the Supreme Court. Remember, because the Trump administration is paying El Salvador to confine these detainees. If the government paid a private prison in the United States to detain people, we wouldn't expect the United States to be able to argue, well, it's not our problem anymore, what this private prison does to these people, because it's out of our hands. It doesn't make sense. It's absurd. So of course, they are effectively, constructively, within the custody of the Trump administration still. So you see here in this particular case,

• 30:57Speaker 01

  the court is, in its Supreme Court-ish kind of way, being fed up with what the government's saying.

• 31:02Roman Mars?

  Right, right. But does it matter?

• 31:06Speaker 01

  Let's hope it does matter, because the Supreme Court has decided to step in a couple of times so far and probably will continue to.

• 31:15Roman Mars?

  We'll be right back.

• 31:18Roman Mars?

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• 31:51Speaker 04

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• 32:17Roman Mars?

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• 33:02Roman Mars?

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• 33:33Roman Mars?

  We're back with Professor Elizabeth Cho, talking about the Alien Enemies Act. And so, Elizabeth, we've been talking about how the Supreme Court has intervened in specific cases that have to do with the rapid rate at which the Trump administration is processing these people for deportation, that people haven't had a chance to petition their cases. But beyond that, is there an indication that the Supreme Court has weighed in on whether or not Trump can use the Alien Enemies Act in this way at all, like in the broad sense?

• 34:02Speaker 01

  That's a great question, and it's important to know that the Supreme Court has not yet decided that case as to whether or not Trump is actually allowed to rely on the Alien Enemies Act in this particular way. You know, the way courts work is, they can only answer the questions that are given to them. They can't step away from this case and be like, by the way, nobody asked us, but this is unconstitutional. So that's right. We were in these kind of emergency procedures because the most immediate thing these detainees lawyers are saying is, please stop them from putting them on the planes and sending them to El Salvador. Now, the underlying claims they have are things like the Trump administration cannot rely on the act in this way, but the Supreme

• 34:44Speaker 01

  Court has yet to rule on that case. So you have these things, and then the Supreme Court, then, of course, in this ARP case, says, you know, you can't do this. You got to give them some process. So just a few days later, Trump responds online in a Truth Social post on April 21st, "I'm doing what I was elected to do, remove criminals from our country." And he says, "We can't give them due process because," and I quote, "that would take, without exaggeration, 200 years." Well, that is an exaggeration. It would not take 200 years. And yes, that's kind of the point of due process, that no matter how long it drags out, or how costly it is, that's why we live in a constitutional republic,

• 35:27Speaker 01

  right? Because we have these kinds of protections. So, I mean, that is a big reveal, right, of the kind of framework of the Trump perspective, which is, why would we care about doing this? Why would we give any process to these people? Who cares what our constitutional protections are? So, a big part of what makes all of this so very confusing, I think, to people trying to follow along, is that there are several different questions about what the government's doing here. So more than 200 people have been sent by the Trump administration to CCOT in El Salvador so far. Some were sent there because an immigration judge had already considered those folks subject to deportation under normal federal immigration

• 36:09Speaker 01

  law. And the government certainly can deport a noncitizen, for instance, who's been convicted of a crime in the United States. That's within the government's rights. But a big number of these people sent to CCOT were only sent there because Trump designated them "alien enemies" under the Alien Enemies Act. Remember, Trump's claim is that these people in this group are part of a vicious criminal gang, TDA, and they're part of this predatory incursion upon the United States. But a recent investigation by the media outlet ProPublica found that only 32 of the 238 Venezuelans who had been sent there already had been convicted of crimes. And most of those crimes were for nonviolent offenses,

• 36:53Speaker 01

  like shoplifting or traffic violations. So the entire Trump administration's strategy so far seems to have been to rush out a group of Venezuelan nationals based on dubious claims about their clothes or their tattoos that they were wearing, sending them out of the country before any court really had a real opportunity to review their claims. Because, well, basically just Trump's plain assertion that they were members of TDA. And that's just one question. Can Trump do this? Can they just disappear people in the middle of the night on the accusation that they're enemy aliens? And the position of the Department of Homeland Security has been, well, due process

• 37:37Speaker 01

  means you get 12 to 24 hours to challenge your deportation. That's enough, right? You know, you look online, find a lawyer who's good at challenging an unprecedented use of the Alien Enemies Act. Yeah, I'm sure they'll be able to find them within 12 hours.

• 37:50Roman Mars?

  Insane.

• 37:51Speaker 01

  Yeah, it's crazy. And then there's another question. How much process is required before these people are deported? The Trump administration's argument had been that, well, if you're a member of TDA because we say so, then we can deport you with no hearing at all. Now, the Supreme Court has already squarely rejected that argument, saying, that's ridiculous. You get some process. Then there's a different question. Even if you have an Alien Enemies Act proclamation, does that mean you can send non-citizens to a foreign prison indefinitely?

• 38:22Roman Mars?

  Right.

• 38:23Speaker 01

  In World War II, most of these alien enemies were just deported. They were just expelled from the United States. They weren't sent to a mega-prison. And then there's this separate objection of sending people not just to any prison, but this incredibly horrible, abusive, supermax prison called ZCOT. After all, the United States is a party to an important international treaty, and that's the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatments or Punishments. We are obligated to treat people even within our custody, no matter what they've done to humane conditions. It would seem like at least a question of whether we're complying with our treaty obligations if we're sending people to this place.

• 39:04Roman Mars?

  Absolutely, and paying for it. So you mentioned that the Supreme Court hasn't weighed in on whether or not it's actually possible for Trump to use the Alien Enemies Act in this way, but has any court weighed in on this?

• 39:14Speaker 01

  Well, at least three federal district court judges, that's trial-level court judges, have issued rulings that Trump can't rely on the Alien Enemies Act to deport non-citizens. But there is one judge, a Trump appointee in Pennsylvania, that said, "Well, maybe Trump can do this."

• 39:30Roman Mars?

  Okay, what is his argument there?

• 39:34Speaker 01

  Well, the judge found that it was enough that when the Trump administration declared that TDA was a foreign terrorist organization, that that would qualify for them being this kind of terrible organization that could lead to an Alien Enemies Act proclamation. "The fact that TDA isn't a foreign country isn't a problem," said this judge, "because the proclamation asserted that TDA was working with the Maduro regime in Venezuela." So remember that the Alien Enemies Act applies either when there's a declared war, declared by Congress, or any invasion or predatory incursion by a foreign government. And here's where things get kind of murky, right? Because in our constitutional traditions, in foreign relations, there's generally a

• 40:17Speaker 01

  preference to defer to the president's judgment in times of war and foreign affairs issues, right? But the question is, is this really that kind of exercise of a president's discretion? Well, this one particular judge said, "Yeah, it is, and, you know, it's not for us to second-guess what the Trump administration is doing, so they can use the Alien Enemies Act that way." It kind of sounds like, "Well, if the president says so, it's so." That is not a conclusion that we should sit well with, because it sounds kind of terrifying. Whatever Trump says, goes.

• 40:50Roman Mars?

  Absolutely. That is very terrifying, for any president to have that power.

• 40:54Speaker 01

  Well, that's right. And in fact, it's much more persuasive to look at some of the other cases in which other federal district court judges said, "I don't think the president can use the Alien Enemies Act this way." So in one of those cases, Judge Alvin Hellerstein began his opinion by saying this. More than 200 aliens were removed from this country to El Salvador's terrorism confinement center with faint hope of process or return. They are there to remain indefinitely in a notoriously evil jail, unable to communicate with counsel, family, or friends. So that really does give you a sense that, you know, there are judges here. I don't know how long they can be

• 41:36Speaker 01

  sort of bulwark for the rest of our constitutional order. Judges who are sounding the alarm. This should not be happening. The Trump administration should not be using the law in this way.

• 41:46Roman Mars?

  Yeah.

• 41:46Speaker 01

  And then maybe the worst case of all is the case of Kilmar Abrego Garcia.

• 41:51Roman Mars?

  Right.

• 41:51Speaker 01

  So let's talk about him.

• 41:53Roman Mars?

  Yeah, please.

• 41:54Speaker 01

  So Abrego Garcia, who lives in Maryland, entered the United States in 2011. So he's fleeing gang violence from his native El Salvador. He meets and marries a US citizen. They have a child who's also a US citizen. Now, in 2019, he's waiting outside of a Home Depot looking for work with a group of other men he doesn't really know very well. The police arrive. They handcuff all of the men. He never figures out why. He's never charged with a crime, but when they look up his status, they see he's undocumented and Abrego Garcia is transferred to an ICE detention facility. And the only information ICE provides about why Abrego Garcia could be a danger, this is in 2019,

• 42:36Speaker 01

  is they say he's wearing a Chicago Bulls hat and a hoodie. And a confidential informant had purportedly advised them that he's a member of the MS-13 criminal gang. Now, his lawyers at the time asked to speak to the police officer who logged this information to figure out where did this come from. But then they learned that the officer has been suspended. Anyway, Abrego Garcia has always said he is not a member of any gang whatsoever. And then he applies for asylum. And in October of 2019, maybe this is the key point of his story. An immigration judge agrees that Abrego Garcia faces persecution by gangs in El Salvador. That's why he had left.

• 43:18Speaker 01

  His family had faced threats by gangs about their family business. He's not allowed to be deported. So you have here a legal decision by an immigration judge agreeing that Abrego Garcia has a legal right to stay in the United States. ICE doesn't even appeal the decision. He gets released from custody. He goes home and he has no criminal history after that, nothing of any sort. And he's supposed to have a mandatory yearly check in with ICE and he complies each time.

• 43:45Roman Mars?

  Okay.

• 43:46Speaker 01

  Then Trump is elected president. In March 12th of this year, Abrego Garcia is driving home from work. He's a sheet metal apprentice in Baltimore. And then he's pulled over by ICE officers. They take him away. And in the car with him is his five-year-old son. So his wife is called to go pick up their kid. She briefly sees Abrego Garcia and that's the very last time she sees him in person. She tried frantically to find him, but ICE keeps moving him from place to place until finally on March 16th. This is just days after he's stopped by ICE. She sees a news article of supposed gang members sent to Seacott and she recognizes her husband. She files a lawsuit to secure his return.

• 44:30Speaker 01

  And on April 4th, a federal district judge ordered the government to return him to the United States. Remember, an immigration judge had already decided in 2019 that the government could not deport Abrego Garcia. This was a mistake. In fact, this is a case where the Trump administration actually acknowledges that they made a mistake. When the judge asks the government's lawyer, "Why was he sent there?", the lawyer replies, "I don't know. That information has not been given to me. I don't know."

• 44:59Roman Mars?

  But shouldn't that resolve the case and lead to him being brought back?

• 45:02Speaker 01

  Yeah, normally the conventional answer is yes. In this case, the government admits that they made a mistake. So the next logical step would be they bring him back. So you'd think it would resolve the case, but it doesn't. Because the government's position now is, we made a mistake, but sorry, there's nothing we can do about it now. He's in El Salvador. It's out of our hands. And the government then appeals the district court's order to return Abrego Garcia, and that eventually goes up to the Supreme Court as another emergency matter. And on April 10th, the Supreme Court upholds the district court's decision to demand Abrego Garcia's return. The court says that the lower court order properly requires the government to facilitate Abrego Garcia's

• 45:46Speaker 01

  release from custody in El Salvador. So Justice Sotomayor writes a separate opinion to point out, look, this isn't someone else's problem. This isn't Abrego Garcia's problem. This is an everyone problem.

• 45:59Roman Mars?

  Yeah.

• 46:00Speaker 01

  Because if the government can mistakenly send a noncitizen to a third country and say, there's nothing we can do about it, they can so-called mistakenly send anybody, even a US citizen, she says, and dump them in another country without any legal consequence, even if a court tries to intervene. So Sotomayor's point, and this is an important one, is that she's really saying, this is kind of the end of the rule of law, if we allow this. No one is going to be safe from an administration's completely arbitrary and lawless decisions if we allow this to happen.

• 46:32Roman Mars?

  Yeah, that makes sense to me. And so what happened to him?

• 46:35Speaker 01

  Well, that's the bizarre part of it. It's June, and he's still there. So remember, the court order that the Supreme Court is referring to says that the government is supposed to do everything it can to facilitate his return. I don't know. What's your sense of the word facilitate?

• 46:54Roman Mars?

  I mean, like, use all available ability, and, you know, like, I don't know. They don't, maybe they don't work on weekends, but at least they, they do everything they can to get him back.

• 47:05Speaker 01

  Yeah, well, the government and Abrego Garcia's lawyers are really initially fighting over the word facilitate. What does it mean to facilitate? Do they just check in on him? Does that mean put him on a plane immediately?

• 47:17Roman Mars?

  Right.

• 47:17Speaker 01

  You know, maybe just find out where he is. The case actually continues to drag out in court, months after Abrego Garcia was taken away by ICE officers, which the government admits was a mistake. So in other words, there is in fact actually no lawful basis for the government to have taken Abrego Garcia out of the United States to another country.

• 47:39Roman Mars?

  Yeah.

• 47:40Speaker 01

  No legal basis to continue to have him be held there and not return him back to the United States where he has a right to be.

• 47:45Roman Mars?

  Is there any consequence to that, that they're not like the Trump administration isn't sort of adhering to a Supreme Court order?

• 47:53Speaker 01

  Well, that's the uncomfortable part here. It is kind of the case that the Trump administration is violating court orders. Well, there's a couple of different ways this is happening, not just in Abrego Garcia's case, because they're not returning him. There's also the April 7th order in one of the other alien enemies cases where the government was told, don't remove people without a notice and an opportunity to challenge their designation as alien enemies. But then they continued to do that. That's why there was that middle of the night order.

• 48:21Roman Mars?

  Yeah.

• 48:22Speaker 01

  So there are at least two instances here where the government is being told by the court, do something. And the government's like, hmm, maybe now we don't have to do that right now. So if we're now living in a world where we can't rely on the executive branch following court orders, we're in a very, very bad place. You know, none of this is normal and we shouldn't allow it to become normal. So these are not problems of other people. I mean, I think that's one of the strange things about what's happened so far this year. It's not as if we live in a like a dual legal system where some people are being treated horribly and then the rest of us kind of go on and live their lives. If the government can make arbitrary decisions about some people, it can make arbitrary decisions about anybody.

• 49:06Roman Mars?

  Yeah.

• 49:07Speaker 01

  It can make arbitrary decisions, not just about like your liberty. It could make arbitrary decisions about your livelihood or your bank account or the way the economy is going to be run or anything. I mean, the rule of law is basically an expectation that there's an order to things. And if there is no rule of law, then you don't really know what's going to happen on any particular day in any particular moment.

• 49:28Roman Mars?

  Yeah. I mean, that's a terrifying way to live. That's like. The reason why people care about the Constitution at all is because it's this 200-year-old, oldest, still in force, rulebook of how a country is run. And if you don't do those things, then it's sort of meaningless. Like, everything that makes us special is out the window.

• 49:51Speaker 01

  Yeah, it's basically like a, it's like a, you know, a social contract. It's a code of honor. It's an honor system we've agreed to live by. And that's pretty much all the courts have, right? Because if the courts just say, "Do this," and the Trump administration says, "No," then there's nothing else we can do, right? I mean, we also depend on the judiciary being respected in terms of their judgments because, just because of their legitimacy. But if you have another branch of government that starts to ignore them, then there's really no telling what happens from here.

• 50:23Roman Mars?

  It's a terrifying world.

• 50:24Speaker 01

  Yep. Now, finally, I want to bring up one more aspect of the Alien Enemies Act. I'm kind of even reluctant to bring it up, but let's do it.

• 50:33Roman Mars?

  Okay.

• 50:34Speaker 01

  Almost all of the public attention to the Alien Enemies Act is focused on its primary provision, that's 50 U.S.C. 21. That's the part that gives the President of the United States the power to declare that some group of people can be considered alien enemies. But here's another provision, 50 U.S. 23. And Roman, why don't we have you read it?

• 50:54Roman Mars?

  "After any such proclamation has been made, the several courts of the United States are authorized upon complaint against any alien enemy resident to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice, and after a full examination and hearing on such complaint and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained."

• 51:31Speaker 01

  Okay, so that is a mouthful. What exactly does that mean? So this provision, 23, it sounds like it gives federal courts authority over alien enemy cases directly, not like the ones we've talked about earlier today. Whenever there is what the provision calls a complaint. Well, that's kind of weird because the president doesn't file a complaint under the act. He just makes a proclamation and the executive branch is just set into motion, which is exactly what we've seen. Well, it turns out that a federal appeals court in 1946 said that section 23 means that the Alien Enemies Act applies when a citizen files a complaint that a person is an enemy alien.

• 52:14Speaker 01

  So the Brennan Center, a nonpartisan legal and policy institute, points out that this appears to be a private enforcement mechanism for the Alien Enemies Act. So this is why I'm even loathe to bring this up, but anyway. Like, someone might say, hey, I think my neighbor is an alien enemy. I'm going to file a legal complaint against them. So to be clear, there don't appear to be any historical cases where private individuals have done this, so maybe no one ever has. And I hope the anti-immigration groups are not listening to this, but none of these groups have ever raised this possibility. So let's just hope that people aren't paying attention to this.

• 52:55Speaker 01

  Because it raises the horrible, horrible possibility of mass deportation vigilantes. If this section actually does allow citizens to file complaints, you can imagine the kind of havoc it creates. I mean, a good parallel is from what's happened after the demise of abortion rights. You might remember SB 8 in Texas, where you could just file a complaint against somebody in court. You could sue somebody if you thought that they were engaged in what Texas considers an illegal abortion. You know, there's also the, historically, America has a long tradition of vigilantism.

• 53:33Speaker 01

  So none of this sounds good, but it is buried in there and let's just hope it stays buried in there.

• 53:39Roman Mars?

  I mean, what is the good of you bringing it up now? If we can't stop it, like if you're, if you're coming back, Kyle Reese, coming back from the future and trying to stop it, like, why come back and tell us this if we can't stop it? Is there a way to stop it?

• 53:53Speaker 01

  I'm not sure that there's a way to stop it. There have been repeated attempts to repeal the Alien Enemies Act wholesale, which have not succeeded thus far. But it's a way to draw attention to, you know, we, we've had this act around for a long time, giving incredible authority, not just to the president, but apparently to normal people too, but in acts of extreme urgency in wartime. And I guess it's to remind people, it's not supposed to be used this way as some sort of tool of vengeance, racism, or xenophobia in ordinary times.

• 54:31Roman Mars?

  Yeah, yeah. And all the other parts, people recognize those, like the part, the sedition part of the act and stuff like this, were eliminated because common sense prevailed over the last couple hundred years.

• 54:42Speaker 01

  But not in this case, not with this act.

• 54:44Roman Mars?

  No, not at all. This is sobering stuff. I'm glad that we're back to talk about it. I really appreciate you coming on and continuing the show with me.

• 54:54Speaker 01

  Yeah, thanks, really.

• 54:57Roman Mars?

  So in addition to the What Trump Can Teach Us About Con Law that we're restarting as a monthly series, we've decided that as our book club, to sort of take the place of the power broker, we're going to have the US Constitution be our book. That's the thing that we are going to cover once a month with Elizabeth, and we're going to go step by step through the Constitution. Instead of a 1,200-page book, we're going to do like a, you know, a 7,500-word document instead. That's maybe about five or six pages long.

• 55:26Speaker 01

  Right, right. The best book club ever. You don't have to pretend that you read it, but you really didn't.

• 55:30Roman Mars?

  So, yeah, so, so, starting in July, every month, we're going to cover sort of a What Trump Can Teach Us About Con Law, something that's happened in current events. And then we're going to also have a book club covering section by section, maybe a few words at a time. And we'll be joined by all kinds of guests who care about these things in sort of various ways. We'll release a schedule so you can do the reading ahead of time if you want to. But the reading might be 30 or 40 words, actually.

• 55:56Speaker 01

  Literally.

• 55:59Roman Mars?

  And we're going to treat the the Constitution, you know, like in a historical context, in a, you know, a present day consequences context, maybe even just as the text itself, you know, like this one's hard to read, you know, treat it like a real book club, you know, not just about the, you know, the history import of everything, but like talk about every little aspect of it that strikes you when you read it as a reader, you know, and as a citizen, or, you know, as a denizen of the United States, which the the Constitution does apply to all denizens, not citizens. That's an important thing to recognize.

• 56:30Speaker 01

  Exactly.

• 56:31Roman Mars?

  So, anything else that you want to sort of mention with it, you know, like you're excited about or want to, you know?

• 56:36Speaker 01

  Yeah, I mean, I think that, you know, we are definitely in some dark times, but I think the book club is a way to kind of be hopeful and to think about a document that deserved to survive and to prop up our constitutional republic for some time longer. And part of that is to feel hopeful that there are, there's a structure there and there's a purpose and intention behind the document and the words. And just by discussing it, people can feel better informed and hopefully optimistic.

• 57:05Roman Mars?

  Yeah. So, when we first started What Trump Can Do About Con Law in 2017, a lot of what I was looking for when I was like, reaching out to you, was like, I want to understand the Constitution and constitutional law more because everyone was invoking constitutional law of like, oh, Trump can't do this because X, or, you know, X states that Trump can't do this, or whatever it is. And we're kind of entering a stranger territory here, a darker territory here, where there are laws and there are judgments, and the Trump administration is simply not following them. And that comfort I had back, you know, like, eight years ago,

• 57:47Roman Mars?

  is it, it's sort of different now, like where I was, I was resting on the Constitution to sort of like, you know, to to wrap a warm blanket around myself, using the Constitution and say, well, now we can be warm and protected. Now it feels like a different world in which it really isn't the protection it once was because of just not following the law and not following the Constitution. So, like,

• 58:11Roman Mars?

  Is it futile to like, point to the Constitution? I mean, like, we used to just like, I just remember like, 2017, we'd go, "A monuments clause, a monuments clause, he's filing the monuments clause", as if it mattered. And now we've learned it kind of doesn't matter. And so, why bother? Like, why bother schooling ourselves in sort of the fundamental rulebook of the nation if the rules aren't followed?

• 58:36Speaker 01

  I think because this time, the Constitution's not a warm blanket for us. It's that we have to provide the support. If we want to believe in the system that we have been living in prior to Trump and Trumpism, we have to really understand, like, why these words take on meaning. They take on meaning through practice and through sort of popular support and enforcement. And I think it's not just a set of rules that are out there that other people, you know, rush to court and other, you know, courts do in some distant way, far from my everyday life. It's actually really important to understand, hey, I mean, I, I get why we have this sort

• 59:16Speaker 01

  of, you know, community writ large commitment to this idea of a constitutional democracy. And I think, so we're, we've got to be the warm blanket. We have to be the support system to think about what's important here. Because everything about the Constitution is, like I said, it's an honor system. Like, we all have to agree that this is important and it's meaningful. Because if we don't, you know, everything is a, the Constitution is a commitment we make, you know, on a day-to-day basis. And that's part of what, thinking about it in a broad, you know, historical and sometimes fun way can, can achieve.

• 59:51Roman Mars?

  Yeah, yeah. So the Constitution, right now, is not lending aid and comfort to us. It is our time to rise up and, and lend aid and comfort to the Constitution so that this stuff continues on. Because I, I like our experiment of, you know, the United States. And so, let's keep going with it.

• 1:00:10Speaker 01

  Exactly.

• 1:00:12Roman Mars?

  So, starting with our first episode will be about the preamble to the Constitution.

• 1:00:15Speaker 01

  And you can do it. It's just 52 words.

• 1:00:17Roman Mars?

  It's so easy to read it ahead of time. Even if you start the podcast, you can just like pause it for like a minute and then read it. And then we can start right there. And so that'll start in July every, every month. So I hope you join us for that. It's going to be very, very cool. So thank you so much, Elizabeth. I really, really appreciate. I'm so glad that we're going to continue on.

• 1:00:36Speaker 01

  That's gonna be great.

• 1:00:38Roman Mars?

  After a recording, the Trump administration returned Kilmar Abrego Garcia to the United States on June 6th and criminally charged him with transporting undocumented migrants into the United States. Abrego Garcia will now face those charges in federal court as a criminal defendant.

• 1:01:02Roman Mars?

  This show is produced by Elizabeth Jo, Isabel Angel, and me, Roman Mars. It's mixed by Martine Gonzalez. Our executive producer is Kathy, too. You can find us online at learnconlaw.com. Our theme music is provided by Doom Tree Records, the Midwest hip hop collective. You can find out more about Doom Tree Records, get merch, and learn about who's on tour at doomtree.net. Additional music by Swan Real and Epidemic Sound. We are part of the SiriusXM Podcast Family.

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