Pod Insights 5-4 Immigration and Naturalization Service v. Delgado About this episode The fourth amendment protects against unlawful searches and seizures…unless, of course, the search is just a friendly survey from your local armed immigration officer!
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5-4 is presented by Prologue Projects. This episode was produced by Alli Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com/
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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 We'll hear arguments next in Immigration Service against Delgado.
0:07 Speaker 00 Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about INS v. Delgado, a 1984 case about the extent to which the Fourth Amendment applies when it comes to immigration enforcement. In 1977, Immigration and Naturalization Service, also known as INS, conducted two so-called "surveys" of workers at garment factories in California as part of an effort to identify undocumented workers. During these surveys, armed INS agents were stationed at factory exits while others swept the floor, questioning workers about their status. If workers admitted to being undocumented, or if agents found their responses not credible, they were handcuffed and taken away.
0:52 Speaker 00 Together with their labor union, a group of workers who were citizens or legal residents sued the INS, alleging that the surveys violated their Fourth Amendment rights against unreasonable searches and seizures. The Supreme Court sided with INS. This is Five to Four, a podcast about how much the Supreme Court sucks.
1:19 Peter Shamshiri? Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have left our civil liberties, frozen and leaking, like the pipes in my house. I'm Peter. I'm here with Rhiannon.
1:30 Speaker 02 Hello.
1:31 Peter Shamshiri? And Michael.
1:32 Michael Liroff? Hey. Do you at least have heat again? I know you were out for a little bit there.
1:35 Peter Shamshiri? I do. Yeah, we're back to homeowners complaints for the metaphors. And this is where I shine.
1:42 Speaker 02 Go ahead and get this one off your chest, Peter, so that I can jump in, because I have a story of my own, actually.
1:49 Peter Shamshiri? Okay. I was getting into the car in my garage yesterday, and I realized that water was dripping onto my windshield. And I was like, that shouldn't be happening from the inside.
2:01 Peter Shamshiri? From inside the garage. And I looked up and I diagnosed a leak because water was coming out of the ceiling. And I'm a bit of a, I'm a bit of a handyman. So I was able to figure out there's a leak. We eventually figure out that it is the HVAC like condenser drain and it's frozen and it's like eight, like eight feet of frozen pipe. It was something outrageous. And what that means is that you, you have to turn your heat off because otherwise the water will just keep backing up all the way to the unit and then the unit will have problems. And so, yeah, I had a guy out and I was like, what do I do about the frozen pipe? I honestly thought in that moment that he was going to have like an elegant solution.
2:44 Peter Shamshiri? You know, that they were going to be like, yeah, classic frozen pipe situation. We do X, Y, and Z and we charge you $300 and, and it's fixed. He was like, do you have like a space heater or something? You can point at it? I was like, okay, well, I don't feel like I needed an expert for this. All right.
3:03 Speaker 02 That would have been what I thought to do on my own.
3:07 Peter Shamshiri? That's what I told you guys, I think, which is I don't like it when I bring a contractor over and then they tell me that the solution is something that I would have thought of. Right. Me, the dumbest guy in the world. Like I don't, I don't even understand pipes. You know what I mean? And You're like, how does the water flow? It doesn't make sense. I don't know. I don't know. Gravity? But sometimes the pipes go up? I don't understand. I've never, I don't want to know. You know what I mean? And yeah, so that is what I have done and it did sort of work. And now the heat's back on and as of now, no leaking, folks.
3:41 Speaker 02 Great, great. And lucky you listeners, since Peter has been a homeowner, he's gotten plenty of these complaints. Do know that to me and Michael, the complaints are even more. Let me tell you guys about a home issue that I had last week that I didn't even tell you about, but would have laid out Peter for three weeks. My, my refrigerator, the water dispenser on my refrigerator turned on.
4:09 Speaker 02 And would not turn off.
4:10 Peter Shamshiri? Oh, my.
4:11 Speaker 02 There was water continuously flowing out of the front of my refrigerator. You guys have been to my house. It's not a big house.
4:17 Peter Shamshiri? Right.
4:17 Speaker 02 Open layout, right? Living room, kitchen, dining room.
4:20 Peter Shamshiri? Now, is your dispenser in, like, on the front of the door?
4:24 Speaker 02 It's on the front.
4:25 Peter Shamshiri? Okay, so it's just blasting into the kitchen?
4:27 Speaker 02 Blasting like a geyser, okay? I could make a dirty joke, and I'm not going to. I'm gonna move, I'm gonna move forward here.
4:35 Peter Shamshiri? No one was.
4:35 Speaker 02 And just say, water pouring, pouring, pouring.
4:38 Peter Shamshiri? I was ready.
4:38 Speaker 02 Pouring, pouring.
4:39 Peter Shamshiri? I was ready.
4:40 Speaker 02 Into, into what is actually my living room, right? Because you're sitting on the living room couch, you're eight yards from the refrigerator. Okay, the refrigerator also totally flush in its, like, little hutch. It took forever to pull the refrigerator out, to unplug the refrigerator, and disconnect the water, which is the only thing that turned it off. We're over a year in here, Peter, but I guess, welcome to homeownership still. This is, this is the stuff that happens.
5:08 Peter Shamshiri? Whenever I start telling people about it, whenever I start to complain, people are like, never ends with them, never ends, right? So it's always something else. And I am fine with that. It's the choice I made. But as with everything else in my life, I reserve the right to complain. I don't care if it's my fault. I don't care if I put myself in this situation.
5:29 Speaker 02 As with everything else in his life, he's not cut out for it.
5:34 Peter Shamshiri? I, first of all, I would have handled the refrigerator situation with aplomb. I would have said.
5:38 Speaker 02 I know you would have.
5:39 Peter Shamshiri? Let's cut off that, that water supply ASAP.
5:41 Speaker 02 Yeah.
5:44 Peter Shamshiri? In the meantime, let's run a hose to the sink. I love the transition from this into, like, anyway.
5:49 Speaker 02 Yeah.
5:50 Peter Shamshiri? The freedom of human beings is at stake in this case.
5:55 Peter Shamshiri? All right, folks. Today's case, Immigration and Naturalization Service v. Delgado. This is a case from 1984 about immigration raids. Specifically, it is about the constitutionality of factory raids, the common tactic where immigration agents raid a factory or another workplace looking for undocumented immigrants. In this case, some agents raided a factory. They interrogated various workers about their immigration status. And some of those workers said that this violated the Fourth Amendment, which protects against unreasonable searches and seizures.
6:34 Peter Shamshiri? But the Supreme Court, in a seven to two decision, said that this doesn't qualify as a Fourth Amendment issue because it wasn't a seizure at all.
6:42 Speaker 02 Not a seizure at all. So let's get into the facts and you trustee smart smarty listener can decide if you think this is a seizure. So we're back in a time before ICE, right? But there is a federal government agency, a law enforcement agency that was doing the work of ICE before ICE was created. That is the INS, the Immigration and Naturalization Service. Just a little bit of history on this agency. It was originally created in the 30s under the Department of Labor. But then from about 1940 until ICE was created in 2003, INS was under DOJ, the Department of Justice. So, taking us to this story,
7:25 Speaker 02 twice in 1977, INS executed two warrants at the Southern California Davis Pleading Company. This is a garment factory in California. And remember, a warrant allows law enforcement to enter, to search a place, or to seize evidence or a person without consent, right? Like, the warrant is what lets them go in legally, even if they don't have a person's consent to do that. And how do they get a warrant? They submit it to a judge. It's signed by the judge if the warrant asserts facts that establish probable cause, probable cause of a crime, right? Or probable cause of evidence being in their evidence for a
8:07 Speaker 02 crime. So INS has these two warrants. But what's unique here is that the probable cause in these warrants is not really specific as to any person. No person who is suspected of being an undocumented worker at this garment factory is actually named in any of the warrants, right? Rather, there's probable cause, supposedly, just that this place employs undocumented people. It is probable that this place employs undocumented people. And that's how these warrants were issued. So, the action by INS, that's described by INS
8:49 Speaker 02 and described throughout this opinion, is that INS, quote unquote, "conducted a survey."
8:56 Speaker 02 Now, let's put this in real human terms, like what is actually happening here? This is a raid by federal agents on a factory, right? And even the majority opinion describes it like this. At the beginning of the surveys, several agents positioned themselves near the building's exits, while other agents dispersed throughout the factory to question most employees at their workstations. We have agents at the exits, while other agents rush the factory floor and question most of the employees at their workstations, right? The agents displayed badges, carried walkie talkies, and were armed. Employees were asked one to three questions relating to their citizenship.
9:41 Speaker 02 And then if the employee gave an unsatisfactory response or admitted that he was not a US citizen, then the employee was asked to, you know, produce some sort of immigration documentation. Tons of people are arrested. So, two members of the labor union of garment workers sued on behalf of this class of workers, saying, wait a minute, the Fourth Amendment should apply here. This is an unreasonable seizure. You can't have a warrant that just says people in here in general are suspected of being undocumented. You know, the Fourth Amendment requires something more, much more specific, much more particularized. That's not here. Now, the district court, the lower court, doesn't let this case proceed as a class action.
10:26 Speaker 02 These plaintiffs end up proceeding individually. Once they get to the Ninth Circuit, the Ninth Circuit does agree that this violated their Fourth Amendment rights. But of course, INS appeals, and that's how we get to the Supreme Court.
10:39 Peter Shamshiri? So, let's talk about the law a little bit. The broad question here is whether this all violates the Fourth Amendment. The Fourth Amendment forbids unreasonable searches and seizures. And what the government says, and the court agrees, is this can't violate the Fourth Amendment because it's not a seizure at all. Rehnquist writes the majority here. Noted segregationist. Let me correct myself. Noted segregationist William Rehnquist writes the majority here. One of the fundamental legal issues in this case is whether a reasonable person in these circumstances would feel free to leave. That is how the court determines whether there has been a seizure, right? Whether you've been detained. It's whether a reasonable person would think that they can freely leave.
11:24 Michael Liroff? Yeah.
11:25 Peter Shamshiri? So as a reminder, a couple dozen INS agents, some of them position themselves at the exits, some of them storm the floor, right? They ask questions to workers related to their identity and their immigration status. They have walkie talkies and shit. They've got guns.
11:41 Michael Liroff? Yeah.
11:41 Peter Shamshiri? Rehnquist says, well, simple questioning, as long as there's no intimidation, is not a seizure. Cops can ask some simple questions of people. They can ask people to identify themselves. He also says, quote, "The presence of agents by the exits posed no reasonable threat of detention to these workers while they walked throughout the factories on job assignments. Likewise, the mere possibility that they would be questioned if they sought to leave the buildings should not have resulted in any reasonable apprehension by any of them that they would be seized or detained in any meaningful way."
12:17 Michael Liroff? What?
12:19 Peter Shamshiri? I'm sorry, but what are you talking about?
12:21 Michael Liroff? What, what, what, what?
12:23 Peter Shamshiri? What planet are you from? The presence of law enforcement agents at every single exit doesn't create a, quote, "reasonable apprehension" that people would be detained?
12:34 Michael Liroff? Or that they're not free to go?
12:36 Peter Shamshiri? Right. What else could it mean? Like, it's hard to imagine that it would mean something else. Imagine that police show up to your workplace and start guarding every exit. Are you saying that it's unreasonable to think that you're not free to leave in that situation? Just you're at work, chilling, dozens of police officers show up, some of them block the exits while the others run around questioning people. You think that a reasonable person is just like, I could go, I bet.
13:04 Speaker 02 Right. And be realistic about what these circumstances actually included in terms of like specific facts and what was happening. Put yourself in the shoes of a worker that's on the garment factory floor at this time. Do you think that agents raided this place silently? Do you think that they did so, you know, like with a sweet and polite tone? They rushed the place. They installed agents at all of the exits. And do you think that they politely walked up to people to ask them questions? No, surely they are barking orders about freeze, right? You need to stay where you are. Everybody listen up, right? Like, the assumption that people do not feel they are free to leave and in fact legally
13:48 Speaker 02 have been seized under the Fourth Amendment is like, it's an assumption that can be made on like the barest of facts that even Rehnquist is stating, right? But it is more intense in the moment, for surely.
14:01 Peter Shamshiri? Yeah. It really does seem like what Rehnquist is doing in the opinion is refusing to look at the situation holistically, right? He breaks everything down into its component parts and then he looks at each of them in isolation. So he's like, what, an officer can't ask you a couple of questions?
14:18 Speaker 02 Yeah.
14:18 Peter Shamshiri? An officer can't stand in a doorway? You saying that's against the Constitution? Ignoring that if you look at this all holistically, officers have blocked off exits and they're running around interrogating people. Like, surely that might make someone reasonably think that they are not free to leave, right? Right. And it's also notable how he alludes the fact that they are blocking exits. He says, oh yeah, officers are blocking the exits, but quote, "The mere possibility that you'd be questioned if you sought to leave the building should not have resulted in any reasonable apprehension that you'd be seized or detained." But what he's avoiding here, very carefully, is that when federal officers block off
15:03 Peter Shamshiri? the exits at your workplace, you don't know what they're doing. Right. You don't know that they're just there to ask a couple of questions, right? So he's like, look, the mere possibility that you'd be questioned, is that really a constitutional violation? It's like, no, dude, you don't know what they're there for. How do you know that they're not executing a warrant for something more serious, right? That they're looking for a murder suspect, they're looking for someone who's armed, et cetera. You don't know. All you know is what they tell you. He has this sort of credulousness here, very intentionally, I think. That's right, yeah. Where he's sort of like, well, look, all this is, is that like, you might get asked
15:43 Peter Shamshiri? a couple of questions, as if that's what the reasonable person is thinking when federal agents swarm your workplace and block the exits. Yeah.
15:52 Michael Liroff? Right. And to that point, he buries this story in a footnote that it's unbelievable. It's unbelievable that he had the balls to even include this, to be frank. Like, if I were being dishonest, I would not have even included this footnote. But in the footnote, he says, like, yeah, one of the respondents described an incident that she saw, right? That she witnessed, in which, quote, "An INS agent stationed by an exit attempted to prevent a worker, presumably an illegal alien, from leaving the premises after the survey started. The worker walked out the door, and when the agent tried to stop him, the worker pushed the agent aside and ran away."
16:35 Michael Liroff? Again, if the question is, do you feel free to leave, and you see one of your coworkers try to leave, and you see an agent try to stop them, and you see them have to physically assault the agent and run away, would you feel free to leave?
16:53 Peter Shamshiri? Right. Also, are you free to leave?
16:56 Michael Liroff? Are you free to leave?
16:57 Peter Shamshiri? Because that person tried to leave, and they tried to stop them. So.
17:02 Michael Liroff? Then he just shrugs it off.
17:04 Speaker 02 All the while, he's calling it a survey. It's a survey. It's a survey.
17:07 Michael Liroff? He shrugs it off and goes, "An ambiguous, isolated incident such as this fails to provide any basis on which to conclude that respondents have shown an INS policy entitling them to injunctive relief."
17:18 Peter Shamshiri? How is it ambiguous or isolated? I don't even understand.
17:21 Michael Liroff? Or innocuous. Like, it's none of the above. Everybody saw it. It's, it's like, what are you, what are you talking about?
17:28 Speaker 02 Everybody saw it. It was what was happening.
17:30 Michael Liroff? It's such a shameless thing to shove in a fucking footnote.
17:34 Speaker 02 This isolating of the details is really important. I mean, to, like, saying that this is isolated, right? And then, to your point, Peter, that, like, all of the agents' activities are just isolated, right? Like, it's, well, you know, oh, they, they can't come in? They have a warrant.
17:50 Peter Shamshiri? Are you not even allowed to move your finger a little bit?
17:52 Speaker 02 Right. They can't stand, they can't stand next to the exits. That's not a big deal. Oh, they can't, they can't ask people a couple of questions? That's not against the Constitution, right? But it's not taking in the totality of the circumstances. And I say totality of the circumstances because the other way around, in determining whether agents can question individuals, the tota, quote unquote, "the totality of the circumstances" can be put together in terms of suspicion about an individual. Remember Noam v. Vasquez, the recent case, right? Where Kavanaugh goes sicko mode racist to say that somebody's ethnicity, somebody's race, the language that they're speaking, these tiny things can be put all together
18:36 Speaker 02 in the totality of the circumstances, right? To indicate that there is enough suspicion to stop people, to detain people, to kidnap them, to put them in, to put them in ICE vehicles, to put them in ICE detention and, and investigate their, their immigration status, right? And, but what do you have here? Every little tiny thing that a federal agent might do, right? Is just on its own. There's, it doesn't add up to anything. There's no accumulation. There's no totality of circumstances about what they are doing to all of these workers.
19:08 Michael Liroff? Right.
19:09 Peter Shamshiri? Another quote from Rehnquist to really drive home what you're getting at, Michael. He says, "It was obvious from the beginning of the surveys that the INS agents were only questioning people. Persons such as respondents, who simply went about their business in the workplace, were not detained in any way. Nothing more occurred than that a question was put to them." While persons who attempted to flee or evade the agents may eventually have been detained for questioning, respondents did not do so and were not, in fact, detained. So, right after saying that no reasonable person could think that they weren't free to leave, he's like, "Well, sure, people who tried to evade the agents were detained."
19:51 Michael Liroff? Right.
19:52 Peter Shamshiri? So they weren't free to leave. Not only, not only was it reasonable to think that they weren't free to leave.
20:00 Michael Liroff? They were not.
20:01 Peter Shamshiri? It was, in fact, true that they weren't free to leave.
20:04 Michael Liroff? Right.
20:05 Peter Shamshiri? It was like a literal fact.
20:07 Michael Liroff? Right, it was reasonable to think that because it was true. It was true that they were not free to leave. I'm sighing. I'm taking deep breaths.
20:15 Peter Shamshiri? You're just like, "What are you talking about, dude? How is this happening?" The, I, I think it's worth pausing here to think about another set of constitutional rights, your Miranda rights, right? When you are detained for an interrogation, custodial interrogation, police must make sure that you are aware of your Fifth and Sixth Amendment rights, right? Right to remain silent, right to an attorney, all that, right? The court held in Miranda v. Arizona that those rights are so important in this context that the suspect or the person being detained needs to be made aware of them verbally by the cops, right? So, why not do that here? Why do we have to do this thing where we're dicking around trying to figure out whether
21:00 Peter Shamshiri? a reasonable person would think that they could leave, right? What are the vibes of the factory when the agents are there, right? Why, why do we have to figure this all out? The cops should have to tell you that you're free to leave, right? Wouldn't that be simpler? Wouldn't it be simpler if they had to say, like, "By the way, you're not being detained"?
21:20 Michael Liroff? You don't have to answer our questions and you don't even have to stay in the same room as us.
21:24 Peter Shamshiri? Right. Why is the burden on the civilian to figure this out? Right? Some guy in a fucking factory is supposed to eyeball whether the Supreme Court thinks that it's reasonable for him to feel like he can or cannot leave.
21:37 Speaker 02 Right.
21:37 Peter Shamshiri? I don't even know when it's like legal all the time. You know, if you just put these fact patterns to me and we're like, is it reasonable to leave? I would, I would get it wrong a decent amount of the time and I'd, I'd read this shit for a living.
21:51 Speaker 02 And this is what's litigated all the time under Miranda, right? It's like, was this a detention? Was somebody being interrogated and they were not free to go? Right? And this is the thing is that if somebody has the Fourth Amendment protection here, right? From this kind of seizure, then that would mean also that they have Miranda rights here. And so the police would have to be doing more, right? Reinquest, the Supreme Court is never going to actually hold their feet to the fire and say like, police officers have to actually do their job.
22:22 Peter Shamshiri? Obviously the conservatives don't even like Miranda. And if we have another 15 years of a conservative Supreme Court, they'll probably get rid of Miranda. But it's pretty clear that if people were made aware of their rights in these situations, they'd exercise them.
22:37 Michael Liroff? Right.
22:37 Peter Shamshiri? And that's why the court doesn't like it, right? Because cops wouldn't be able to interrogate as many people and they care about that, right? But I think that just goes to show how important it is, right? You have this like super ambiguous legal situation that happens all the time. Cops are interacting with someone and the person does not know whether they can leave or what exactly their rights are. Why shouldn't the cops just have to fucking tell them?
23:01 Michael Liroff? Right.
23:01 Speaker 02 Yeah, and they're just never gonna make a prophylactic rule like that, right? So there are a couple of concurrences in this case. One is by Justice Stevens. There's really no use going into it. It's a paragraph. He joins the majority, just says procedurally, we don't need to answer all of these questions, but I agree with the result anyway, right?
23:23 Michael Liroff? Right. And if that sounds weird to you, like, remember this is also the eighties, like Stevens, he wasn't as woke, like the political climate was a little different than, our boy was a little problematic, unfortunately.
23:36 Speaker 02 Now, Justice Powell has a concurrence. It's also short. It's, you know, several paragraphs, but pretty short. Justice Powell agrees with the holding, but says, I would have reached this conclusion a different way. He says, you know, we don't need to ask ourselves whether a reasonable person would think that they were free to go in this situation. He says, actually, I admit that's like a pretty close call in these circumstances, but, you know, no matter, whatever, let's do away with that close call question, because we can decide this another way. He says, these circumstances, you know, an INS quote unquote, survey of a factory where garment workers are at. He says this is more analogous to a
24:19 Speaker 02 case called US v. Martinez Fuerte, where federal agents have set up checkpoints, you know, some distance from the border, but at those checkpoints, every car can be stopped, right? And that's without a sort of particularized suspicion about any individual in the car. And the Supreme Court upheld that practice, right, of vehicle checkpoints, some ways away from the border in that case. And they did so by concluding, like, yeah, this is a seizure under the Fourth Amendment. These cars, these individuals inside the cars are being seized when they are forcibly stopped. They don't have a choice about whether or not they're stopped going through this checkpoint.
25:02 Speaker 02 But the Supreme Court held that's a reasonable seizure. Remember, the Fourth Amendment protects against unreasonable searches and seizures, right? And so the Supreme Court in Martinez Fuerte is saying, you know, there's this huge public interest in controlling illegal immigration, and that outweighs, in that circumstance, the vehicle checkpoints, that outweighs an individual interest in Fourth Amendment protections. Powell, you know, I think I'm going to talk about this a little bit later. This is a short concurrence, and Powell uses about half of it to talk about what a big problem illegal immigration is. And I think that's a justification that's implied throughout the majority opinion and, and obviously, the concurrence here.
26:01 Peter Shamshiri? There's something that's sort of unspoken here, and it's the concept of the general warrant. The Fourth Amendment says, "No warrants shall issue but upon probable cause supported by author affirmation and particularly describing the place to be searched and the persons or things to be seized." So, the reason that that language exists in the Constitution is because the founders were concerned about the general warrant, right, what were called writs of assignment back in the day, where the king would basically grant these writs to his agents in the colonies to go search shit.
26:39 Speaker 02 Fishing expedition, right? Like, just go search stuff.
26:43 Peter Shamshiri? It didn't expire. It wasn't limited in any way. It was just, the king says that you can search for whatever you want, right? Hence, the general warrant. It's just like, you can generally search. You have been given the power by the king to go fuck up people's houses, their places of work, et cetera, et cetera.
27:01 Michael Liroff? Think about it like James Bond, right? He gets his license to kill, and then he can just kill whoever he wants, right? It's like, you get your license to search, and you get to go just rummage through people's shit.
27:12 Peter Shamshiri? Also British, right? It's not a coincidence.
27:16 Peter Shamshiri? So, the founders were like, "No, no, no. You have to be specific, right? There has to be a specific reason why you are searching a person or a place." Now, think about what's happening here, right? INS does not have reason to believe that a specific undocumented person is at this factory. They have a general belief that there might be undocumented people at this factory, right? So, the origins of this case are...
27:49 Peter Shamshiri? The respondents here saying, hey, don't you need something specific? Can you really show up at a factory and say, we're just looking around? Isn't this kind of like a general warrant? Right? Are you just saying that you can just run around the country? Going to private establishments and holding them semi hostage? Mm hmm. Without a specific person that you're looking for? And Powell, in his concurrence, is saying, yes. Yes, that that is okay. Right? Yeah. Rehnquist is saying, I'd rather not answer that question. It's actually not a seizure, blah, blah, blah. Right? But lurking behind all of this is the idea of the general warrant.
28:32 Peter Shamshiri? And this is something that popped up very recently in this ICE memo that was leaked. And basically, what we know now is that internally, within ICE, it's been made clear to agents that they are not expected to get warrants. And that, in fact, they can go door to door. Right? Now, just going door to door, looking for undocumented folks. This is quintessential, like, right down the middle, what the founders didn't want. Right? But it's, this is sort of, you can see it as almost a natural extension of the reasoning here. Yeah. That like, if you can just send a bunch of people to a factory, because you're sort of suspicious that there might be some undocumented people there,
29:16 Peter Shamshiri? even though you don't know who, then why can't you go door to door? Yeah. And I don't want to conflate these two regimes, like what was happening in the eighties with INS and what's happening with ICE now. It is different. But you can see the sort of little baby steps that aggregate over time. Yep.
29:32 Michael Liroff? Right. And that, I think, is a good lead in to Brennan's dissent, actually. It's an interesting dissent. I have, I have my quibbles with it, but he makes some good points. But what he opens with something that sounded extremely familiar, sounded like an echo of, of our, you know, modern discussion of like Noam v Vasquez, for example. So he says, you know, what is striking about today's decision is it's studied air of unreality. He says the court's engaged in a sleight of hand that turns on the proposition that the interrogations of respondents by the INS were merely brief, consensual encounters that posed no threat to respondents' personal security and freedom.
30:17 Michael Liroff? The record, however, tells a far different story, which sounds exactly like, you know, if you're online at all, you've seen the discourse around the quote unquote Kavanaugh stops and the way Kavanaugh described what he imagined to be brief, low stakes encounters between ICE agents and people. And then the reality of the violence of those stops, the length of those stops, people being essentially kidnapped, dropped off in the middle of the nowhere, their possessions taken, in the cases of, you know, Renee Good and Alex Preddy murdered. The disconnect between, you know, this anesthetic language that the court uses to justify their
31:02 Michael Liroff? permissiveness versus the reality, the violence and the intimidation of, you know, immigration enforcement. It felt very familiar, just reading the first paragraph, I was like, oh yeah, it's been 40 years and it's the same shit. It's the same exact shit. We're doing the same thing. You know, one of the issues in the lower court is like, was the entire workforce seized? And so Brennan's decision is concurring in part and dissenting in part because he's like, I don't think the entire workforce is seized, but I think these individuals were seized. Like, and he justifies it, right? He goes into the details, which I thought were interesting and worth mentioning because
31:44 Michael Liroff? to Rhiannon's earlier point about what the reality of this looks like, you know, one of the plaintiffs, Delgado, was approached by two INS agents after he had told them where he was born and all that. The INS agents left, but one agent remarked as they were leaving that they would be coming back to check him out again because he spoke English too well. I don't know about that, guys. I don't know.
32:10 Peter Shamshiri? No, it's, you know, you know.
32:12 Speaker 02 That doesn't even make sense. Like, I'm like, okay, what else? Like, I don't.
32:16 Peter Shamshiri? No, we, you know, when you, when you talk to someone and they're speaking English like a little too fluently.
32:21 Michael Liroff? You're like, hmm, something's not right.
32:24 Peter Shamshiri? What's going on with this guy? Gotta be a criminal. I mean, the average immigration agent, even back then, there's something wrong with the brain, right?
32:33 Michael Liroff? Oh, absolutely.
32:34 Peter Shamshiri? To do this job, it's like, it's, it's not like with cops where you can, at least cops can pretend that they're gonna like go fucking save kittens from trees and protect people from bad guys and shit like that, right? Immigration enforcement is just grabbing people who you don't think belong here and removing them.
32:54 Michael Liroff? Yeah.
32:55 Peter Shamshiri? And I feel like a guy speaking English too well, who he thinks shouldn't speak English that well.
33:02 Michael Liroff? Right.
33:03 Peter Shamshiri? It's almost like he's, he's, he's like, are you tricking me? Am I being tricked by someone sneaky? Right. Because it's entirely this like dominance dynamic, right? If another guy is speaking English well, it's sort of like, it's sort of like maybe the agent is the one who's getting domed. You know what I mean? He's like, he's beating me. He's beating me.
33:22 Michael Liroff? Right.
33:23 Peter Shamshiri? My own game. I'll be back, motherfucker.
33:25 Michael Liroff? Yeah, I'll be back. I'm gonna, I'm gonna prove you don't belong.
33:28 Peter Shamshiri? Right.
33:29 Michael Liroff? You think you're so fucking smart with your correct grammar, eh, you know? We'll, we'll see about that. Brennan also gets at some of the points Peter was making earlier about how the court, he says, insists upon considering each interrogation in isolation as if respondents have been questioned by the INS in a setting similar to an encounter between a single police officer and a lone passerby on a street corner. And he's like, once you like deal with the reality that this isn't what it is, it's multiple INS officers that are guarding the doors, they're sort of moving through aggressively, they're peppering people with questions. You have to deal with the fact that this is quite obviously a seizure, right?
34:11 Michael Liroff? Like, and one that therefore, once it's a seizure, needs to be justified under the Fourth Amendment as reasonable. There needs to be a showing of probable cause or at least specific, specific reasonable suspicion as to the individual being spoken to, right? Being interrogated. He ends on an interesting note, a little policy discussion. Again, some things I like, some things I didn't, but all very familiar, where he says, look, the only reason we're having this discussion is because the border. Is underfunded and underpatrolled and therefore people flow through it quite easily. And he says, look, this is an admission that we have allowed border enforcement to collapse.
34:53 Michael Liroff? And since we are unwilling to require American employers to share any of the blame, we must, as a matter of expediency, visit all of the burdens of this jury-rigged enforcement scheme on the privacy interests of completely lawful citizens and resident aliens who are subjected to these factory raids solely because they happen to work alongside some undocumented aliens. And I think, setting aside the border patrol funding shit, I think that's right. And I think this was a point that he probably should have been talking more about, which is that the upshot of this decision is that US citizens and lawful permanent residents
35:33 Michael Liroff? have fewer rights if they happen to work in the same place as undocumented workers, which means if you are of a lower social class, you are going to have fewer rights. That's the upshot of this decision, is that you're formalizing a caste, an underclass of wage workers who have fewer rights and fewer protections against government surveillance and government harassment and government overreach. That's what this decision does. That's the reality that we've lived in for decades. And I think what you're seeing now
36:15 Michael Liroff? in modern America is that when you allow an underclass to persist and their rights to steadily erode, you leave the door open for fascists to fully weaponize that Right. And start pushing more and more people into that underclass, right? You see this when ICE agents turn to the camera of some random soccer mom who's filming them and it's like, you're in a database now. You're a domestic terrorist now. What they're saying is, you're in this underclass now. Your rights are now also subject to our whims and no longer protected. Yeah. Welcome to life as an undocumented immigrant, right? Like, that's what they're saying.
36:59 Peter Shamshiri? It's tricky with some of these arguments because I don't think undocumented people should have to live like this, right?
37:07 Michael Liroff? No, absolutely not.
37:08 Peter Shamshiri? We obviously, you know, if you gave us control of policy.
37:13 Michael Liroff? The only people who live like this are registered Republicans.
37:15 Peter Shamshiri? That's right. It would only be Republicans who would not be allowed to hold real jobs.
37:21 Peter Shamshiri? But I think it's worth noting that the conservative argument doesn't really hold up under the weight of its own logic. You know, the Powell argument here is essentially, well, undocumented immigrants get a lesser form of protection, right?
37:36 Speaker 02 Yeah.
37:37 Peter Shamshiri? And we've seen this argument made pretty explicitly by the Supreme Court. But if you can't know going into it that someone's undocumented, then necessarily, people who aren't undocumented will have their rights impacted too. There's no way to do it that's not overbroad. And I think at the end of the day, what they really believe is who cares? Who cares?
37:59 Speaker 02 Yeah.
38:00 Peter Shamshiri? These are poorer people. These are people I don't give a shit about.
38:03 Michael Liroff? Right.
38:03 Peter Shamshiri? You know, it's not us. Who cares?
38:05 Speaker 02 I think that's exactly right. And that's what I mean about like the quote unquote "problem" of quote unquote "illegal immigration" without a lot of inspection at all or inquiry being on its face, the justification that's imbued through the majority opinion and certainly the concurrence, like I said. What we're getting at, I think, like with discussing this case, we've said it in like a few different ways, but it's something we've said before, which is that there is a carve out to constitutional rights where immigration enforcement is concerned, right?
38:38 Michael Liroff? Right.
38:38 Speaker 02 Like, why does this case matter? This court, in this case, upholds the questioning of an entire factory workforce without requiring individualized warrants, individualized consent, or even reasonable suspicion, which is a less stringent, a less strict standard than even probable cause, right? And over and over again, you know, we've covered so many cases. This is what we see is that, well, immigration enforcement is just different. You have fewer, you, US citizen, you undocumented person have fewer constitutional rights where immigration enforcement is concerned. And like, you read Powell in the concurrence.
39:20 Speaker 02 Says recent estimates of the number of illegal aliens in this country range between two and 12 million.
39:27 Peter Shamshiri? Between two and 12?
39:30 Speaker 02 Between two and 12 million. One of the main reasons they come, perhaps the main reason, is to seek employment.
39:38 Peter Shamshiri? Enough said.
39:40 Speaker 02 Factory surveys strike directly at this cause, enabling the INS to diminish the incentive for the dangerous passage across the border and to apprehend large numbers of those who come. This is the justification on its face, right? That law enforcement should be able to question, detain tons of people if they are even suspected, right? Often in bad faith, suspected to be unlawful immigrants. And, and you just have to like, take a step back and this justification that, that goes through all of these cases and say, wait a minute, why? Illegal immigration is dangerous to who? Why is it bad?
40:23 Speaker 02 Dangerous to anybody other than the immigrants themselves who make up the underclass?
40:28 Peter Shamshiri? Not just is it dangerous, but like, you couldn't do this for murder. Right? Like, you could not do this legally, constitutionally, for things that are dangerous. Police couldn't run into a factory and be like, well, we don't have any reason to believe that a murderer is here, but this is like, the kind of place where murderers hang out, in our view.
40:45 Speaker 02 Exactly.
40:46 Peter Shamshiri? So we're gonna interrogate everyone. The court wouldn't, wouldn't allow that.
40:49 Speaker 02 Immigration, even illegal immigration, does not pose this kind of danger to society, right? A, a danger that is posed by like, mass shooters, for example, right? And so, it's, how is this so terrible that it gets a constitutional carve out of this magnitude, right? And everywhere, everywhere in these Supreme Court cases, the justices just say things like, this is a serious problem. And they cite ridiculous statistics and there's nothing else. And so what is behind all of this, right? It's not said, obviously, is a racism, right? A labor system that creates an underclass and perpetuates it that, you know, is so awful
41:32 Speaker 02 that actually like it can't be explicitly stated by these Supreme Court justices, right? They can't say, well, this is the actual reason why I think immigration and undocumented people are so dangerous, is such a problem that we have to have fewer constitutional rights to enforce this, right? They couldn't say it because it's so awful.
41:55 Peter Shamshiri? Right, I mean, it's very clear that the court has carved out immigration as this special thing where there are fewer rights. And the implication there is sort of that this is the greatest crime, right?
42:08 Speaker 02 Yeah, right, that's, yes.
42:10 Peter Shamshiri? That there's no other way to combat it other than to allow for the frequent loosening of constitutional protection.
42:17 Speaker 02 Yeah.
42:18 Peter Shamshiri? It's just sort of inherently ridiculous. And it just like broads at this tension in our system where we insist that people go through this like increasingly labyrinthine process of trying to be here legally. And if they don't, we are granting the authorities basically permission to violate their rights and dignity. Like, to what end, right? To what end? It's meant to be this sort of self-justifying thing. Well, there's a bunch of undocumented people here, therefore, we need to loosen-
42:59 Speaker 02 Therefore, it's bad.
42:59 Peter Shamshiri? The protections of the Constitution.
43:01 Speaker 02 Yes, yeah.
43:02 Peter Shamshiri? Right, I mean-
43:03 Speaker 02 It's like, explain it to me like I'm five. I don't understand. I don't understand what the problem that you're stating. Okay, two to 10 million, two to 12 million. Okay, what is the problem?
43:13 Peter Shamshiri? Right, I mean, I mean, look, the, you'll never see this in like the gun rights context, right? Where it's like, look at all of the deaths caused by guns.
43:21 Speaker 02 Mm-hmm, right.
43:22 Peter Shamshiri? So we're gonna need to ease up on the Fourth Amendment protections, right? It doesn't work that way. It doesn't work that way in any other context.
43:29 Michael Liroff? So to to switch gears a little, I do want to talk a little academically and sort of philosophically about the Fourth Amendment. I think you see in this opinion and in most Fourth Amendment jurisprudence, a very atomized approach. The question, you know, you see it both in the majority and in the dissent, talking about the individuals, right? You know, Rehnquist says, respondents may only litigate what happened to them. And Brennan says, well, the, you know, the whole workforce wasn't seized, but these four individuals were seized. And that's very common, right? That's a very common approach to the Fourth
44:08 Michael Liroff? Amendment. And I think it's maybe something we could rethink as leftists. You know, obviously, the thesis of this podcast is that jurisprudential minutia don't decide these big politically fraught cases, political considerations do. And so I'm not going to sit here and say, well, if the Fourth Amendment were imagined more as a collective, collectively held right, this case would have come out differently. Because I don't think it would have. I think, you know, the dishonesty in the opinion, in the majority opinion, shows that it doesn't matter what the regime is. They will be dishonest in getting to the ends they want to get to. That being said, I would like to live in a world where maybe in the next
44:48 Michael Liroff? 10 or 15 years, thanks to court packing, or term limits, or a measles outbreak at, you know, the Republican pedophile retreat. Now we're talking. Now we're talking. There's a liberal majority on the court. And if there's a liberal majority, I would love there to be a vast literature of leftist legal thinking on all the amendments and
45:12 Peter Shamshiri? And there is. It can contained entirely within this podcast.
45:16 Michael Liroff? That's correct. That's correct. But if you are a law student or a law professor, my plea to you is to think about the Fourth Amendment differently. You know, the text of the Fourth Amendment doesn't refer to persons. The Fifth Amendment refers to persons. The Fourteenth Amendment refers to persons. You know, they say, all persons born are citizens, right? Or no person shall be subject to double jeopardy, or whatever.
45:43 Michael Liroff? The Fourth Amendment talks about the people, right? A collective, the people being free of unreasonable searches and seizures. And this atomized approach, I think, is a problem. You see it pop up in all sorts of areas. I think you can see it here. The idea that, well, every individual encounter might not be a Fourth Amendment seizure. So therefore, if they're all zeros, you can add them up and you still get zero, right? This was a similar logic when they were attaching GPS devices to people's cars. And they were like, well, look, if you're, we can follow you around in the street. We can see where you're going. So doing it with a GPS device isn't a search. And doing it for one day isn't a search, then doing it for 20 days isn't a search.
46:26 Michael Liroff? Doing it to one person isn't a search, but then doing it to 500 people isn't a search. They're all zeros, and so they all add up to zero. And I think that's wrong. I actually think that's incorrect. And I think if you think about it differently and you think about the Fourth Amendment as protecting the people, it becomes a small L libertarian idea about the relationship between the state and the people who make up the body politic, right? And it's more about limitations on the state's ability to harass people than it is about your individual rights. This is an area that, when, last time I looked into it, was so sorely underdeveloped. And I would love to see more writing about it.
47:10 Michael Liroff? I would love to see more thinking about it because I think it's needed and I think it's right. I, to be frank, I just, I think the way we approach the Fourth Amendment is wrong. I just don't think it's correct to think that it's all about these individual interactions and it's not about the relationship between the state and capital T, the capital P, people, right? That's what it's about.
47:33 Speaker 02 The anti-subordination Fourth Amendment.
47:35 Peter Shamshiri? Yeah.
47:36 Speaker 02 Or we need it developed.
47:38 Peter Shamshiri? And maybe, maybe someone can take my idea where cops have to tell you that you're free to go and build on it even further. Maybe they have to tell you from 20 feet away.
47:51 Peter Shamshiri? Maybe they can't even get close to you. You know what I mean? Because that's scary.
47:55 Michael Liroff? Maybe they have to be like that guy in Love Actually, where they just have like a board that they hold up.
47:59 Speaker 02 Yeah.
48:00 Michael Liroff? Signs.
48:01 Speaker 02 To me, you are criminal.
48:08 Peter Shamshiri? Stupid shit. So fucking stupid.
48:11 Michael Liroff? Moves the board.
48:13 Peter Shamshiri? God damn it. It doesn't even make sense in the context that we're talking about.
48:18 Michael Liroff? No, it's so good. It's so good.
48:22 Peter Shamshiri? But so I think, I think the, um, the good part about leftist legal thought is that the current state of things is so bad that there's almost any idea is an improvement. You know what I mean?
48:35 Speaker 02 Yeah.
48:37 Peter Shamshiri? Cops should have to wear bigger shoes. They should have to wear shoes that are two sizes too big. Boom, put, pop that in the Constitution, folks.
48:47 Michael Liroff? No, but like, think about like something like stop and frisk, right? Like how much easier that is to conceptualize as, as a constitutional violation when you're thinking of the Fourth Amendment collectively.
48:58 Speaker 02 Right.
48:58 Michael Liroff? Rather than having to do this like ridiculous 100-page opinion, getting into the statistics to prove that it's like unequal treatment and all that stuff. Like, it's just like, no, this is clearly just, you're harassing the people, right? Like it's-
49:12 Speaker 02 Widespread abuse of the population.
49:14 Michael Liroff? Right, it's so clean. It's so much cleaner and, and there's just, there's a lot of room for rethinking things.
49:21 Peter Shamshiri? Right.
49:26 Speaker 04 All right, folks. Next week, Pulsofer v. United States. This is a case about the First Step Act, a criminal law reform act passed just a few years ago. The Supreme Court immediately tried to defang. Follow us on social media at 54pod. Follow us on Patreon. Patreon.com/54pod, all spelled out, for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.
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