The Trump administration found itself in court again Monday, needing to defend its indefensible actions on the ground in Minneapolis. Yet judges didn’t appear to be in a hurry to shut down the administration’s campaign.
In one courtroom, an obviously torn District Judge Katherine Menendez, a Biden appointee, was skeptical and occasionally scathing in questioning administration lawyers, yet uncertain about her own powers under the Tenth Amendment, which reserves to the states powers not expressly delegated to the federal government.
“I mean, is there no limit to what the executive can do under the guise of enforcing immigration law?” Menendez asked the administration’s lawyers. Yet she also pressed lawyers for the state, “How do I decide when a law enforcement response crosses the line from a legitimate law enforcement response to a response that violates the Tenth Amendment?” She plans to issue a ruling by Thursday.
In another federal courtroom, Judge Eric Tostrud heard arguments on a suit by the Minnesota Bureau of Criminal Apprehension to ensure that DHS doesn’t alter or destroy evidence tied to Alex Pretti’s murder by ICE. On Sunday, Tostrud—a Trump appointee—temporarily granted the request until he could hear arguments Monday afternoon.
Litigation is also challenging the administration’s invention of a legally nonexistent category known as administrative warrants, whereby ICE agents can circumvent the illegal search and seizure prohibitions of the Fourth Amendment, which requires a judge to sign off on a search warrant based on probable cause.
The tactic was outed by astute reporting from the Associated Press. An internal Immigration and Customs Enforcement (ICE) memo from a whistleblower and obtained by the AP authorizes officers to enter homes without judicial warrants. The directive from last May states that “the DHS Office of the General Counsel has recently determined that the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for this purpose.” Administrative warrants are signed by immigration officials.
This tactic is so patently unconstitutional that a panicky administration commissioned an op-ed by Department of Homeland Security general counsel Jimmy Percival, hastily published in The Wall Street Journal, misconstruing the case law and contending that “illegal aliens don’t have the same rights as citizens.” You wonder if Percival even read the Fourth Amendment, which describes “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” not the rights of citizens.
No Supreme Court ruling has ever upheld a challenge to the plain meaning of the Fourth Amendment, and it is hard to imagine the courts not tossing out the bogus invention of administrative warrants.
Other immigration enforcement-related rulings have cut against the White House’s aims. Earlier in January, the Supreme Court ruled 6-3 against Trump’s attempts to federalize the National Guard for use in Chicago, a decision that could influence how the Court views Trump’s threats to use the Insurrection Act and its use of ICE as a domestic secret police.
Not all of these rulings have gone in the same direction. Before the latest ICE murder, the Court of Appeals for the Eighth Circuit overruled a temporary injunction issued last week by Judge Menendez that prevented federal immigration officers from retaliating against demonstrators.
The ruling had prevented ICE from detaining or tear-gassing people who are engaging in peaceful and unobtrusive protest. The court decisions stem from a December lawsuit filed by six plaintiffs, represented by the ACLU. The six named plaintiffs were all observing ICE last year, either in cars or on foot, when they were threatened, pepper sprayed, or arrested by federal agents, according to the lawsuit.
The Trump administration argued in a motion that the lawsuit is based on incidents in December that plaintiffs can “only speculate may recur.” Well, the recurrence has now included two ICE murders. It will be interesting to see what the Eighth Circuit does now.
Judges would have us believe that their decisions operate in a rarified constitutional atmosphere beyond politics. Yet judges also watch the news. That being said, at the end of the day, the courts are a slender reed. Where convenient, the administration simply defies the courts. Ultimately, it has to be the citizenry that restrains Trump—or not.
The same Wall Street Journal that ran Percival’s mendacious op-ed, has just published an editorial calling on Trump to cease operations in the Twin Cities. “The Saturday shooting of Alex Pretti, as he lay on the ground surrounded by ICE agents, is the worst incident to date in what is becoming a moral and political debacle for the Trump presidency.”
Trump himself is now in full damage control mode, claiming that he had a good phone call with Minnesota Gov. Tim Walz and dispatching border czar Tom Homan to Minnesota to rein in ICE, while transferring the Gestapo wannabe Gregory Bovino. A statement from Walz’s office reports that Trump agreed to consider reducing the number of ICE agents in Minneapolis, and to look into having DHS share information so that Minnesota authorities can conduct an independent investigation into the two murders of Walz’s constituents. It’s unclear whether Homan will do anything different in Minnesota other than keep ICE off television screens, but it is a rare Trump admission of error, if only in an indirect way.
All of this will only hearten the resolve of the citizen opposition. It would be splendid if that opposition included the courts. In the meantime, we need to save ourselves.