Joyce Vance:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Joyce Vance in for Preet today. President-elect Donald Trump has vowed to bring sweeping changes to immigration policy once again when he returns to the White House in a few weeks. So far, he’s proposed mass deportations, revoking birthright citizenship and asylum protections, and more. Trump has even suggested the possibility of deploying the military to carry out these plans.

To help us understand these pressing issues, I’m joined by Lee Gelernt, Deputy Director of the ACLU Immigrants’ Rights Project. Lee has handled some of the most high-profile immigration cases during the first Trump administration, and the next few years are undoubtedly going to be critically important and busy for him. Lee, welcome back to the podcast.

Lee Gelernt:

Thanks for having me again.

Joyce Vance:

So, Lee, I think when it comes to immigration, past is prologue. Right? And we all need a reminder, it was intense during the first Trump term. There was a lot going on in regards to immigration, most of it really bad. Can you remind us about what happened? What were the high points or maybe the low points during the first term?

Lee Gelernt:

Yeah, sure. I think you’re right, maybe more low points than high points. I don’t actually recall too many high points. The first term was bad for immigrants. I think most notably from my perspective was the family separation policy, which I think the whole world was revulsed by. We now know that more than 6,000 children were torn from their families, some as young as six months old. Many, many were babies and toddlers, and they were taken from their family.

Sometimes the parent wouldn’t even know where the child was, wouldn’t get to talk to them for months. Even when they were able to talk to them, the child was just crying, and sometimes the child was preverbal. It was the worst thing I have seen in my more than 30 years doing this work. And unfortunately, we are still seeing the effects of it. We believe that there may be 1,000 little children who are still not with their parents. We’re talking now six, seven years later.

And we also see the trauma even for the children who were reunited, and we’re looking at little children, three years old, four years old, who are scared to go to sleep at night. They’re asking their parents, “Are men going to come and take me away again?” or a little child standing by the window of his house, looking to see if men are coming to take them away again.

And understandably, the focus has been on the children, but it’s also the parents who have been so traumatized. Often, the child will come back and say to their parents, “Didn’t you love me enough to keep me? Why didn’t you fight for me?” The child being too young to understand that their parents were helpless, and these parents would see their children being pulled away and screaming and begging, “Don’t take me,” and just have to stand there helplessly while their children were being taken away from them.

And so, this is unbelievable trauma. Human rights groups, Physicians for Human Rights have called it torture. Medical associations have said it was tantamount to child abuse. And so, we’re still trying to find the families and reunite them, and obviously still trying to help the families that are reunited get the benefits of a settlement agreement we reached with the Biden administration that will allow them to apply for asylum and hopefully be able to stay here and not be re-separated from their children.

Joyce Vance:

Lee, let me just jump in and ask you, is my recollection correct? Family separation was a feature, not a bug. In other words, the then-Attorney General Jeff Sessions made a point of saying, “This will deter people from coming to this country, to the United States, the knowledge that they will be separated from their children.” And it was viewed as a policy objective, not something unfortunate that happened. Is that correct?

Lee Gelernt:

Yeah, you’re absolutely correct. The whole purpose of this was to try and, in their mind, deter families from ever coming again or giving up on their asylum claims. What the Trump administration thought is, “If we make it so horrible and we take little babies and children away from their parents, people will stop coming here to seek refuge, to apply for asylum,” which is the word that’s used. When you’re fleeing danger and being persecuted, you get to apply for what’s called asylum.

They thought, “We will deter people from coming.” There were two problems with that. One is that it wasn’t going to deter people. I think every expert and every prior administration, Democratic or Republican, knew that it wouldn’t deter people from coming. And one of the first things I would ask families is, “Would you have come anyway if you had known this was going to happen to your child?” And they just shrugged and said, “Well, what choice did I have? I couldn’t stay and let my child be killed or I be killed.”

And so, it wasn’t going to work. But the second problem, of course, is even if it was going to work, there’s just some things we don’t do in the United States, and that’s the point Laura Bush made in an op-ed she wrote, with just saying, “We don’t do this to little babies in the United States.” And I think that’s why we saw both national and international outrage about what was happening. It was absolutely the point of the policy to make it so horrible that families would stop coming to seek refuge here.

Joyce Vance:

The family separation policy went hand in glove with another Trump-era immigration policy, I should say Trump 1.0-era immigration policy, which was to pull back on aid to the home countries. For years, the United States had pursued a strategy of providing stabilizing aid in areas that were very likely to produce asylum-seeking refugees, like Central America. That stopped with Trump. Do you think that contributed to the problem?

Lee Gelernt:

So I think providing aid to countries is something that we need to do, but that’s ultimately a long-term solution, and it will never be a complete solution. There will always be people in danger. There always have been. And so, we still need to have an asylum system in the United States. And one of the things that, in Trump 1.0, that administration did is not just do family separation, but enact a series of restrictions on asylum that the ACLU and its partners challenged.

And what I get a lot of is, we’ll say, “Well, isn’t the border policies inefficient, or isn’t there chaos?” And we are not against making the border policies more efficient. That needs to be done. But at the same time, we can’t completely eliminate asylum. I think there’s this notion that people coming here are not really in danger, but I can tell you they really are in danger.

And we made a solemn commitment after World War II that we would never send people back to danger without at least screening them, and that’s what Trump tried to do in 1.0, is eliminate even basic screenings for asylum seekers. We can make the border policies more efficient, but we really need to have some way for people who are genuinely in danger to seek asylum.

And one of the things I ask people is, when they say, “Well, let’s close the border completely,” I say, “Well, what about someone who’s facing religious persecution? What about a Christian in another country who’s facing religious persecution, and their whole family may not be able to practice their religion or could be killed?” And they say, “Well, that person, of course, should be getting asylum.”

But you can’t have it both ways. You can’t close the border completely and not have some outlet for asylum. So I think what we need to do is have serious people roll up their sleeves and say, “Well, how can we make the system more efficient, but at least leave some outlet for people who are genuinely being persecuted to apply for asylum?”

Joyce Vance:

Well, that would be such an utterly sensible way to approach this problem, something that we hadn’t really seen. Lee, you touched on something, interestingly, in that last answer that I wanted to ask you about. I do want to save time to look forward, but I think it’s worth setting the table first. You talked about one reason that people might flee their home countries to come here. I mean, I think all too often, there’s this narrative of people coming here to work, people coming here because this is a great country, and they want this lifestyle for their kids.

And although those sorts of factors can be involved, I think all too often, those narratives obscure the real tragedy that forces people to make dangerous trips with their kids. I know as a prosecutor, we sometimes were called upon to handle the overflow of immigration cases from other circuits, like the Second Circuit. And so, the example that you mentioned, people fleeing religious persecution. We handled a lot of those cases from places like China, but also from other countries where Christians were persecuted, women who were forced to get abortions when there was a one-child policy.

We know that from Central America, there are women who flee domestic violence. There are gang violence, gang recruitment issues that people are fleeing. How would you characterize… And I know it’s tough, because everyone has their own individual story, but as Americans think about who these people are who seek asylum in our country, what does that look like? What’s the range?

Lee Gelernt:

Yeah. I think you’re absolutely right to point that out. Not everyone is going to be deserving of asylum, and we are not arguing that everyone’s entitled to asylum, but that’s why there needs to be a screening process. But to the extent people feel like there are not families fleeing real danger, I think that’s absolutely wrong. I mean, you mentioned some of it. We see it all the time that sometimes cartels are controlling whole areas and persecuting people.

Sometimes it’s religious persecution. Sometimes it’s political persecution. Sometimes it’s based on gender. The fact is that people really don’t want to leave their home countries. It’s an enormous decision to leave your country, especially if you have little kids and you’re going to trek thousands of miles with your little kid to go to a place that is an unknown, especially for your children. So if someone leaves, they really feel like they need to leave.

And I think we need to understand that… One of the things that I worry about is that aggregate statistics and abstract policy arguments blur the human dimension of what’s going on, and that the constant narrative that everyone coming here is a gang member or dangerous or just wants to get benefits from the U.S. is absolutely wrong. People don’t want to come. And if they come, there are often really good reasons.

But the other point I would just make, and you touched on, Joyce, is there are some people who just want to find a better economic opportunity, and I think we need to open up more pathways for people who want to work. I mean, every economist says we need workers. And obviously, it’s a tricky thing sector by sector, but I absolutely think that we need to open up more pathways for workers, and not just high-skilled workers. And I think what that would do is reduce the number of people at the border who feel like asylum is the only way to come. So if we had a pathway for those people, for workers, and we allowed asylum seekers to come and have a screening, I think that be the best of all worlds.

Joyce Vance:

Well, again, that sounds very sensible, and nothing about our immigration policy up until this point has been sensible. But I guess hope springs eternal, right? Let’s go ahead and dive in on this new term. I mean, I have a lot of questions for you. It’s been a while since we’ve had a chance to catch up on this, but it’s no secret that Donald Trump made immigration a cornerstone of the campaign.

He even encouraged Republicans in Congress to vote against, and I still find this tough to believe, but to vote against a compromise bill Democrats put on the table that gave Republicans much of what they’ve been asking for for decades. So clearly, this was a political issue that mattered during the campaign, but now the campaign is over. And so, can you give us sort of a survey, a high-level view of what you expect to survive from the campaign rhetoric? What immigration policy do you actually expect Donald Trump to try to move forward on?

Lee Gelernt:

Yeah. So that’s something we have been actually at the ACLU working on since February, and we don’t know exactly what he’ll do, but I’ll tell you what we’re preparing for. One is that he is going to change birthright citizenship. Under our Constitution, someone born in the U.S., regardless of the status of their parents, is a U.S. citizen. He is going to try, we’re told, to change that through an executive order and say that if your parents weren’t here permanently, or it was some kind of permanent status, you will no longer be a citizen even if you were born here.

Joyce Vance:

Will that go backwardsly or that’s only going forwards?

Lee Gelernt:

We’re told it’s only going forward. We don’t really know what will happen, but we expect it only going forward, and that’s going to be fun. But if it ever was upheld, and we hope it will not be since the Supreme Court has said that the Fourteenth Amendment guarantees citizenship to anybody born here, it would fundamentally change the U.S. I mean, the U.S. has always prided itself on, “It’s not about who your parents were, it’s about what you can contribute.”

So we’re expecting that to happen possibly on the very first day. We are expecting mass deportations. We don’t know whether they’re actually just going to target people with serious criminal convictions or national security threats. From the rhetoric, it sounds like mass means just going after virtually everyone. So that means families without criminal convictions who have been here 30 years and contributing. Their kids may be U.S. citizens.

We think that he may use the National Guard or military to help with immigration, which obviously would be extremely troubling. We expect that he’s going to institute something called expedited removal in the interior of the country, which would mean that anybody who’s not been here two years can be picked up and removed immediately with just a supervisor’s signature. If they were able to say that they wanted to apply for asylum, hopefully they would be allowed to. But even then, it would be an extremely truncated process.

So we’re talking about people sitting in Chicago in a restaurant or going to the hospital, or dropping their kids off at school, can be arrested and be gone in 24 or 48 hours if they can’t prove they’ve been here longer than two years. So I think all of those things are things we’re expecting. We’re also expecting them to go after blue states, blue cities to make them cooperate with immigration enforcement. So those are just some of the things we’re expecting, and we’re preparing for all of them because we don’t know exactly what is on the table.

Joyce Vance:

Yeah. So it seems to me that the proposal that’s garnered the most attention is Trump’s campaign promise to conduct the mass deportations. I mean, that felt frightening and scary, and like it was intended to be red meat for the base. What would his legal authority to actually do that look like? I mean, you’ve said that you think it’ll be, in a sense, low-hanging fruit. Right? Not sort of a prioritized effort to deport people with criminal records or with gang ties, but mostly a, “Whoever you can find, let’s just make it look good for political purposes as opposed to have policy content.” How do you do that without violating the law?

Lee Gelernt:

Well, so just to clarify, I think it’s going to be both. It’s going to be both people with criminal convictions or supposed national security threats, but I think it’s also going to be other people as well. That’s my sense. We’ll have to see. And so, I think you’re asking the right question about, “Are there legal impediments?”

The truth is that we will go after certain things that deal with process and who’s engaging in these arrests. So, for example, if the military is engaging in these arrests, we will try and stop that. If they’re not giving people process, they’re arresting them and not giving them process to show that they deserve to be here, we’ll go after that.

But the truth is that the immigration laws are extremely harsh, and the only reason that they haven’t been at… I mean, they’ve been harsh for a long time, but the only reason they’re not at this level of harshness that he’s talking about is because prior administrations, both Democratic and Republican, have said, “Look, there’s no reason for us to be targeting a family who’s been here 20 years with U.S.-citizen children who hasn’t committed a crime and are contributing to society.”

But he’s talking about doing that. And the truth is, there’s not really a… As long as people get process and it’s not the military, there may not be a legal impediment to that. The immigration laws allow for that kind of harshness. And so, what we really need, I think, is the public to push back and say, “Look, we said we wanted strict immigration enforcement, but we didn’t really mean to go after families who have been here for decades and have U.S.-citizen children or are contributing to society.”

I genuinely think that when the American public answered that question, “Do you want mass deportations?” it was too vague and abstract a question. And then if you actually show them what it looks like in practice, a family being rounded up with babies who are U.S. citizens, and the children now going to be left behind or have to go to a country they’ve never stepped foot in, I think I’m hopeful that people will push back and say, “Well, that’s not what we meant. We thought we’re going to go after other types of people.”

And I remember back to the first term, I would get constant calls from people saying, “I can’t believe it. They’re going after the custodian of my son’s school or the custodian in the church or somewhere, and he’s such a nice guy. I didn’t think they meant that.” And I think there’s a lot of misunderstanding now where I see people on TV saying, “Well, he’s not going to come after us. We’re good people, even though we’re here illegally.” And I think they are intending to do that. And so, I’m hopeful the American public will push back and say, “We don’t want families who have been here that long to be dragged out of their house and their children sent to foster care.”

Joyce Vance:

So, look, I agree with what you’re saying about people’s attitudes, but I mean, I’ve got to ask you, you’re a litigator. It is what you do. Are you saying that you don’t have confidence that there’s a legal strategy for preventing these deportations just because of the way immigration law is shaped?

Lee Gelernt:

I am saying that. And I don’t want to have people feel a sense of hopelessness, but I also don’t want to raise the expectations. People are asking, “Can the ACLU stop all these deportations?” The truth is that we can’t. We can hopefully make sure people have process, and that slows it down, and some people will win and some people won’t, and we can hopefully stop the military from being engaged.

But sort of bread-and-butter deportations, I don’t think we can stop those. I think the American public is going to have to say, “We don’t want those,” and push back. But as a legal matter, the immigration laws, exactly as you said, are set up to be very harsh, and the only thing that keeps them from being extremely draconian is, prior presidents, again, both Democratic and Republican, have exercised some amount of humane discretion.

Joyce Vance:

Yeah. So, I mean, let’s talk about the process lawsuits which, I agree with you, are going to be the right way to go. You’ve mentioned, and Trump has suggested, that he might use the military to carry out deportations or other immigration-related detentions. The last time I checked, there was a prohibition against using the military for domestic law enforcement. So how does Trump do this without violating the law?

Lee Gelernt:

Right. Well, we think he would be violating the law, but you’re absolutely right. There’s the Posse Comitatus Act. So one thing that President Trump has talked about on the campaign trail is invoking the Alien Enemies Act, which is a centuries-old law that can be used to go after, quote, unquote, “enemy aliens.”

But critically, what the law says is it can be used where we’re in a declared war with a foreign government, or where a foreign government is invading or threatening to invade. That’s obviously not the situation here. So I don’t know how he will try and use that, but I think there’ll be multiple challenges to that. If he says, “Well, people are invading, and there’s a foreign government involved with cartels,” or something along those lines, we think it’s a complete mismatch.

But it’s only been used three times in our country’s history and always in declared wars, the War of 1812, World War I, and World War II. But some people have said he may try and use this to eliminate process and just deport people right away without hearings. And so, that is a very scary, dangerous proposition. The other thing that he may try and do is say there’s been an insurrection and federalize the National Guards around the country to try and override the prohibition against the military engaging in domestic law enforcement.

All of these things we think would be illegal, and I think you will see challenges not just from immigration groups, but also from the states themselves, if there’s an attempt to federalize all the National Guards around the country for immigration enforcement. So those are the kinds of things, I think, you will see challenges to. And hopefully, we will prevail on those.

But that still leaves, of course, ICE officers engaging in very harsh deportations. The other thing the law allows them to do is deputize willing state police or local police, and I think you’re going to see a lot of state police around the country in certain states, like Texas, being willing to engage in immigration enforcement.

Joyce Vance:

It’s an interesting question, because it does interfere with their other priorities. And I recall during the era where Alabama had passed its anti-immigration law, many of the most conservative state and local law enforcement officers were privately concerned. How were they going to carry out their mission while they were devoting an enormous amount of time and energy to deportation sorts of policing? I mean, are you at all maybe cautiously optimistic? Is it too much to hope that the states might not be willing to play pool here because of resource issues?

Lee Gelernt:

You’re absolutely right, and that is a critical point. I am optimistic that many state police and local police will say, “This is not a smart use of our resources. We’re not trained for this, and we need to be focused on much more serious crimes.” But I am not hopeful that they all will. I think you’re going to see in places like Texas and other places, maybe Arizona, potentially, lots of local police being deputized and being willing to do it.

But I think what we have seen from state police, local police is them saying to us, exactly what you said, Joyce, “This is not a good use of our resources.” And not only is it a drain on our resources, but we need immigrant communities to be willing to come forward when they see serious crimes, or witnesses to serious crimes. If we make the immigrant communities too scared to ever come forward to report crimes to the police, then we’re going to undermine our entire law enforcement effort.

So there are very strong policy reasons not to have state and local police involved in immigration. It may sound great on the campaign trail, but I think when you talk to real experts, they say to you, “Look, it doesn’t make sense to pull people off a murder investigation to go after a family to try and deport them who’s not committing any crimes.”

Joyce Vance:

Yeah. I mean, it’ll be interesting to see what happens to crime statistics, right? Violent crime currently is down. As you say, without informants and participants and victims willing to come forward from immigrant communities, and then with the drain on resources, this could really have the opposite effect of what’s intended. So I think that’s an interesting sort of issue to look forward to. As you say, community involvement will matter.

I’m really just intrigued by some of the legal strategy that you contemplate Trump might try. The Alien Enemies Act, that seems to me to approximate what was happening in Texas during the campaign season. Right? They had the spinning whirligiggies that they put into the Rio Grande that were designed to keep people from successfully crossing the river and entering the United States, and one of their justifications was, “Well, we’re being invaded.”

Lee Gelernt:

Right. So I think you’re right to hit on that, and I think that’s going to be one of the really interesting things to look at after January 20th, is what some of those states are going to do, the states that have been so out there trying to enforce immigration. The justification has been, both as a policy matter and in court, is that the Biden administration didn’t enforce the border policies, which wasn’t true, and we actually have been suing the Biden administration over very restrictive asylum policies.

But I think once Trump comes in, if he is doing border enforcement in the way they want to, are they still going to feel like they have a justification for doing these kinds of immigration enforcement actions? Traditionally, the states have not been allowed to engage in immigration enforcement. We think that’s proper, but we’re going to see whether the states continue with it or not, and continue these lawsuits.

We expect that if the states continue with these policies, the Trump administration will say, “That’s fine,” and we will be challenging them. To this point, it’s been us and the Biden administration challenging policies enacted by Texas and other states. So I think the dynamic in court will change if they still go ahead with it. We’ll see whether they still go ahead with it.

Preet Bharara:

Stay tuned. There’s more coming up after this.

Joyce Vance:

I want to touch a little bit with you on the Insurrection Act. Many of our listeners, I think, are familiar with the Insurrection Act from a slightly different context. Right? How do you see Trump using the Insurrection Act? And, I mean, I get the basics, to claim that there’s some sort of horrible disruption that requires federalization of the military, which would let Trump circumvent the prohibition that the Posse Comitatus Act has on using the military for domestic law enforcement purposes to arrest domestic criminals. But what’s the theory there? What’s the insurrection theory? And do you think that the courts, and particularly this Supreme Court where that one would have to end up, do you think that they would go for it?

Lee Gelernt:

Well, so taking the latter part of your question first, I am wary about predicting what the courts will do, and I’d prefer not to do that. But I would say that I do believe that the courts, including the Supreme Court, will not just give him a blank check to do whatever he wants. And so, on the Insurrection Act, I think common sense tells you that we’re not being invaded and that it’s not a proper application of the Insurrection Act here.

You ask economists, “Are immigrants contributing to society?” They say, “They’re a net positive.” You talk to other people who study this issue, and they say, “Immigrants are not committing crimes at the same level even as citizens.” Right? And so, to say that we really are in a situation where the Insurrection Act can be properly invoked is absolutely wrong to us. That’s not what the Insurrection Act was meant for.

I mean, you would have to believe all the campaign rhetoric that everyone coming here is a gang member, that they’re trying to take over the U.S. Obviously, that’s not all true. And to an extent, some people believe it. I think that they need to get beyond the campaign rhetoric. But I think most people really understand that this is not a proper use of the Insurrection Act. Putting aside the sort of strict legal terms of it, it’s just common sense. We’re not being invaded by immigrants in the sense that our country is at danger.

Joyce Vance:

So let’s be optimistic for a sec and hope that you prevail in these process lawsuits, that the Alien Enemies Act argument fails, that the Insurrection Act argument fails, that Trump can’t use the military. But as you say, there are still plenty of legitimate law enforcement resources that can be used to round people up, especially if we’re talking about expedited removal actions in the interior of the country, and there’s been this proposal that Trump would consider using private prisons to detain immigrants, or even that they would build new immigrant detention centers.

This is something that I’m sort of familiar with from my work in prison reform and criminal justice reform, and private sector financial incentives are usually a really bad fit when you’re talking about people’s rights and justice and due process, because, obviously, the people that are running those facilities and building those facilities are focused on how many people can they bring within their ambit so they can make more money, which is, after all, their job as a business. That doesn’t always line up very well with the Constitution and our laws. So what do you think of these plans? Who would benefit from building these new facilities? And do you think it’s a good idea?

Lee Gelernt:

So you’re absolutely right. I mean, the ACLU has been pushing back against private detention centers for a long time, but I also think you’re right that we’re going to be looking at a lot more detention facilities. And we may be looking at, I think if we believe what the incoming administration is saying, bringing back family detention where whole families are sitting in detention, with little children growing up in detention centers.

And so, it’s very dangerous. But I think given that the Congress is going to be controlled by Republicans, we may be looking at lots of money being poured into that, and with private detention operators as well with, as you said, having the wrong incentives sometimes. So I think it’s going to be a real issue, because I think if they can’t eliminate process and the immigration system is going to take a while to play out, they’re going to want to try and hold people in detention centers. So that’s one thing.

But I think even if there isn’t process and they’re going to try and remove people quickly, they’re going to want to put them in detention centers while they move them out. And so, there’s going to be challenges to the detention centers, so the conditions in the detention centers to family detention. I don’t know that all of them are going to succeed, and I think we’re going to see a lot more people in detention.

And one of the things I want to stress is I think some people hear this and think, “Oh, well, if they’re dangerous, we really need to put them in detention centers.” But that’s not who’s getting into detention now, and won’t be the only people getting into detention going forward. It’s not just people with criminal convictions. Even asylum seekers who have never committed any crimes and are coming here and already traumatized are ending up in detention centers, and there’ll be families without any crimes ending up in detention centers.

So I think we’re really looking at a bleak situation if all these detention centers get built. I mean, as it is, there’s thousands of people who have never committed crimes in immigration detention centers. But I think if we believe this incoming administration, we’re going to see so many more people, including families, ending up in detention.

Joyce Vance:

Yeah. I mean, just to underscore that point, if you’ve committed a violent crime, a murder, a robbery, an assault, you’re going to be prosecuted probably by the state, maybe by the feds, and you’ll be in the criminal justice system. It’s also a crime for people who have been removed from the country to reenter illegally, and the federal government prioritizes those prosecutions.

That’s a huge percentage of U.S. Attorneys’ Offices’ dockets nationwide. Those people are in federal criminal custody. So those aren’t the people that need to go to immigration detention centers, which are outside of normal criminal justice channels, as I understand it. I mean, isn’t this essentially a way of amping up family separation-type policies?

Lee Gelernt:

Yeah. I think that’s what will happen. You’re absolutely right. So we’re not talking about those people who have committed crimes and could be detained for public safety reasons. The other thing I think we’re going to see is sort of forced family separation. What you see the administration coming in and saying is, “Well, we’re not going to do the family separation policy again.” And I think that’s because the first time around, that’s one of the few PR battles they lost in the immigration area, where people put their foot down and said, “We don’t want little babies being taken away.”

But what they’re going to do now is go after families with U.S.-citizen children who have been here a long time, and try and deport the parent, and then force the parent to leave the child behind or take the child to a country, again, that they’ve never stepped foot in. And so, we’re going to see separations in that way, and they’re going to say, “Well, we didn’t separate them. It was the parent’s choice.”

But as you know, that’s not really a choice when you’re talking to a parent with a little child. Do you take the child with you to a dangerous country, or do you try and leave the child behind with a relative or something, or in a foster situation? I mean, that’s hardly a choice, but that’s what’s going to, I think, force a lot more separations even if they’re not doing it directly.

Joyce Vance:

Well, and I think that takes us straight back to the issue of birthright citizenship. I mean, right now, if you’re born on U.S. soil, you’re a citizen. That’s per the Constitution, confirmed by the courts and by statute. So how does Trump, as you’ve mentioned, how does he revoke those protections? You said executive order that will require that at least one of your parents have some form of legal status at the time of your birth, but that’s not what the law says. So how does he just do that?

Lee Gelernt:

Well, so I guess they’re counting on the Supreme Court to overturn their own precedent and allow him to do it. But again, we don’t think you can do it. We think the Fourteenth Amendment is clear, and the Supreme Court has already ruled on this. And so, it would take the Supreme Court, I think, overruling their precedent and allowing this. So will he try to do it just for the purpose, I guess, of fulfilling a campaign promise? Perhaps. It sounds like he is going to go ahead and try it.

Again, we’d think it’s patently illegal, and we will be challenging it, but we’ll see how it plays out. I think we’re not going to be the only ones who are challenging it, obviously. You’re asking the right question, and I don’t know what they’re thinking and whether they feel like it’s a win-win for them, because if the courts don’t allow it, they have a political thing they can say. We’ll see.

Joyce Vance:

Yeah. I mean, that feels like a really good point to me, that it is win-win for them. Right? They go to court and they win, they win. They go to the courts and the courts say no, well, they’ve tried, and maybe that promotes other narratives that they might see as being useful politically. It’s so hard with immigration, I think, to separate political theater from good policy, because there are some concerns. As you point out, the process at the border needs to be cleaned up. And by the same token, there are other sorts of concerns about who we are as a country, how we treat other human beings.

One of those issues that the Supreme Court decided back in the 1980s involved whether or not schoolkids, regardless of their immigration status, had a right to get an education, I mean, as a matter of just basic rights. The Supreme Court held in Plyler versus Doe that every child in the United States, whether they’re a citizen or not, can get a grade K-12 education. Do you think that that long-established right is compromised in this next administration?

Lee Gelernt:

That’s a very good question. I am not anticipating, this may be naive, a federal law trying to take away the right of children to get an education regardless of their immigration status. But I think we may see states try and do it, and challenge the precedent. I am hopeful it doesn’t happen, that states realize that families are still going to come here, and it makes no sense, as the Supreme Court said in the 1980s, to have all these children not in school, on the streets. That can’t be good for anybody, including the states.

So I’m hopeful as a policy matter, they choose not to do it. But if they do do it, all we can say is we hope the Supreme Court will adhere to its precedent called Plyler v. Doe that said, “There’s a right for immigrant children to go to school.” But that would be such a fundamental shift in how the states are operating now with all these immigrant children not in school, would be really horrendous in our view.

Joyce Vance:

Well, let’s go from one of the low points of the immigration conversation to the high points. Let’s talk about what we can do, because you’ve suggested that some of this may be, a substantial part of the burden falls on citizens. Do you think states and local governments can realistically do anything to prevent abuses?

Is immigration so ingrained as a federal prerogative? I mean, something that I’ve argued in court was that the federal government set immigration policy, that it wasn’t up to states and localities. And also, in United States versus Arizona, we succeeded in making that argument. So what ground is left for states and localities to try to intervene on behalf of people?

Lee Gelernt:

Yeah. That’s a good point. It’s a nuanced conversation. We think that the states can’t engage in their own deportation processes, like Texas is trying to do, but we do think states have a right to control their own resources and what goes on with their systems. And so, we think that the states have a right to push back and say, “We’re not going to cooperate with ICE in engaging in immigration enforcement. We’re not going to lend our resources to that. We are not going to allow you in our jails to do that.”

And so, I do think that that line can be drawn where states can push back. And I anticipate a lot of states pushing back, but I also anticipate the Trump administration going after them hard, trying to cut their funding for a variety of things as a way to get leverage on the states and help the states capitulate. But that will be one of the real battles going forward, is state and local governments pushing back against the Trump administration.

The Trump administration has been out there already saying that, “We are not going to stand for blue states not cooperating.” We’ll see how all that plays out, but I think there will be a lot of court battles. And I also think that states, if they see abuses with immigration raids, can stand up for their own residents. We talked about process, but the other thing that I think we should talk about is, there will be challenges to raids and immigration enforcement, even by ICE officers, if they’re not adhering to the Fourth Amendment, if they’re barging into houses, if they’re racially profiling in violation of the Equal Protection Clause.

And I think state and local governments, their civil rights bureaus can push back on that as well. But again, as we talked about, it will take the public also pushing back. During the first term, the family separation, people were marching peacefully, saying, “No family separation, no family separation,” and it really did have an impact on the Trump administration. It’s the one time where they pulled back on a domestic policy.

And so, I think that’s going to have to happen. People are going to have to say, “We saw what’s happening in these neighborhoods, and we don’t like it. You said you were going to focus on criminals and national security threats. That’s not what’s happening.” And it’s going to take people being organized, documenting what’s going on. It’s also going to take the media documenting the harshest of policies so people know what’s going on, because a lot of times, immigration can be out of sight, out of mind for people.

Joyce Vance:

Lee, I really appreciate it. It’s such a fair-minded assessment of where we are, and I appreciate that you don’t bring false optimism, but that you do give people a sense of the role of citizens in a democracy and what they can and will do. I’m so sorry that that’s all that we have time for today. I have a lot more questions for you. I hope that you’ll come back and see us again as we get into the administration.

Lee Gelernt:

Absolutely. I really appreciate you having me.

Joyce Vance:

Well, Preet will be back later this week. Many thanks to our guest today, the ACLU’s Lee Gelernt.

Preet Bharara:

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Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner, and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.